1. Appeal against order quashing promotions and directing reconsideration of promotion from Grade D to Grade E under service rules. (Para 1 , 2 )
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1999 Supreme(SC) 1118
SUPREME COURT OF INDIA
G.B.Pattanaik : S.Saghir Ahmad
Union Of India
Versus
R.A.Yadav
Case No. : 42 of 1990
Date of Decision : 9/28/99
Under Article 319(c) of the Constitution, a retired member of the Union Public Service Commission cannot chair another selection board, rendering any such selection vitiated. Constitutional requirements may be raised in appeal even if not previously pleaded before the tribunal.
Headnote:(A) Constitution of India - Article 309 and Article 319(c) - Service Rules - Promotion - Eligibility criteria based on regular service and performance reports - Interpretation of rules regarding the timeline for assessment for promotion. (Para 2)
(B) Constitution of India - Article 319(c) - Eligibility of retired members of a constitutional commission - A retired member of the Union Public Service Commission is ineligible to act as the Chairman of another Selection Board - Any selection made by such a Selection Board is vitiated. (Para 2)
(C) Constitutional requirements - Plea not raised before the lower tribunal - Where a question involves a constitutional requirement and has been settled by the higher court, the plea can be entertained by the appellate court even if it was not raised before the tribunal. (Para 2)
Facts of the case:
An officer was promoted to a specific grade and sought further promotion based on service rules which required either a minimum period of regular service or a specific number of successive "outstanding" or "very good" performance reports. The officer was found unsuitable for promotion by a selection board in 1985. It was subsequently noted that the board was presided over by a retired member of a constitutional commission. The lower tribunal quashed promotions from 1985 and 1986 and directed reconsideration of the officer's case starting from 1983.
Findings of Court:
The court found that the officer was not eligible for promotion in 1983 as the required performance reports were not earned. However, the selection board that considered the officer in 1985 was improperly constituted because its chairman was a retired member of the constitutional commission, which is prohibited under the Constitution. Consequently, the selection process for 1985 and 1986 was vitiated.
Issues: Whether the officer was eligible for promotion in 1983; whether a retired member of the constitutional commission could legally chair a selection board; and whether a plea regarding constitutional requirements could be raised for the first time in the appellate court.
Ratio Decidendi: Under Article 319(c) of the Constitution, a retired member of the Union Public Service Commission is ineligible to act as the Chairman of another Selection Board, and any selection made by such a board is void. Furthermore, since the eligibility of the board is a matter of constitutional requirement, such a plea can be raised in the appellate court regardless of whether it was raised before the tribunal.
Result: Appeal disposed of; the respondent is to be reconsidered for promotion for the years 1985 and 1986, with entitlement to notional seniority but no financial benefits if found suitable.
Legal Category Hierarchy
Table of Contents
2. Whether a retired Union Public Service Commission member can chair a selection board and whether new constitutional pleas are maintainable in appeal. (Para 2 )
3. A retired member of the Union Public Service Commission is ineligible to chair another selection board pursuant to Article 319(c) of the Constitution. (Para 2 )
4. Selection boards chaired by retired members of the Union Public Service Commission are improperly constituted and their decisions are vitiated under Article 319(c) of the Constitution. (Para 2 )
5. Direction for reconsideration of promotion upheld, granting notional seniority if successful, without financial benefits. (Para 2 )
6. Can a retired member of the Union Public Service Commission act as the Chairman of another Selection Board?
No. Under Article 319(c) of the Constitution, a retired member of the Union Public Service Commission is ineligible to act as the Chairman of another Selection Board. (Para 2 )
7. What is the legal consequence if a Selection Board is chaired by an ineligible retired UPSC member?
The selection made by such a Selection Board is considered vitiated and invalid. (Para 2 )
8. Can a plea based on a constitutional requirement be raised for the first time in appeal if not raised before the tribunal?
Yes, if the issue is one of constitutional requirement and the Union does not dispute the underlying facts, the court may accept the plea even if it was not raised before the tribunal. (Para 2 )
(1) THE Union of India in the Ministry of Defence is in appeal against the order of the Central Administrative Tribunal. By the impugned order the Tribunal has quashed all promotions from Grade D to Grade E that took place in the year 1985 and 1986 and also directed that the question of promotion from Grade D to Grade E should be reconsidered, without reverting the promotees.
(2) ADMITTEDLY, the respondent was promoted to Grade D on 1-7-1980. The promotion in the service is governed by a set of rules framed under Article 309 of the Constitution called "the Defence Research and Development Service Rules, 1979". Under the rules which were in force at the relevant point of time a person in Grade D could be considered for promotion to Grade E on completion of five years of regular service in Grade D. It further provided that if an officer had earned three successive "outstanding" reports or four successive "very good" reports in the same grade he shall be assessed for promotion to the next higher grade. In other words, if the respondent would have earned three outstanding reports in Grade D then he could have been considered for promotion to Grade E in the year 1983 and if he would have earned four very good reports he could have been considered for promotion in the year 1984 but as he did not earn those remarks he was not eligible for being considered, till 1985, when his case was duly considered but he was found unsuitable by the Board. The Tribunal however, by the impugned judgment came to the conclusion that even non- consideration of the respondent in the year 1983 is vitiated and as such directed that the respondents case should be considered afresh with effect from 1983. The said direction of the Tribunal cannot be sustained in view of our conclusion on interpreting Rule 8(2)(d) of the Recruitment Rules. But so far as his consideration in the year 1985 is concerned, wherein he was found unfit, admittedly the Board was presided over by Mr Sampath who was earlier a member of the Union Public Service Commission and by the year 1985 he had superannuated and yet he was made the Chairman of the Board to assess the suitability of the officers of the Defence Research Organisation. The question whether a member of the Union Public Service Commission after his retirement could at all be the Chairman of any other Selection Board came up for consideration before this Court in the case of Union of India v. U.D, Dwivedi1. This Court on interpretation of Article 319(c) of the Constitution came to hold that such a retired member of the Union Public Service Commission is ineligible to act as the Chairman of another Selection Board and, therefore, the selection made by such Selection Board gets vitiated. The respondent appearing in person relies upon the aforesaid judgment and contends that the Board which disqualified him in the year 1985 was not properly constituted in view of the judgment of this Court and, therefore, he has a right to be considered by a fresh Board for the year 1985 as well as for the year 1986. Mr P.P. Malhotra, learned Senior Counsel appearing on behalf of the Union of India contends that this question had not been raised before the Tribunal and the respondent will not be entitled to take this plea in this Court. The question being one of constitutional requirement and having been answered by this Court and the Union of India does not dispute the fact that Mr Sampath was the Chairman of the Board in the year 1985 which Board considered the case of the respondent and found him unfit, we are unable to accept the contention of Mr Malhotra. In that view of the matter the direction of the Tribunal toconsider the respondent for promotion from Grade D to Grade E in the year 1985 and in 1986 must be upheld. We make it clear that notwithstanding the invalidity of the Board which considered the case of promotion in the year 1985 and 1986, no other person who can be said to be aggrieved would be permitted to approach a
