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TMI Blog1994 (10) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... omoted to Junior Administrative Grade of the ITS pursuant to the selections made on all-India basis by a duly constituted DPC under the Chairmanship of a Member of the UPSC. Lastly, he was given selection grade of ₹ 2000- 2250 in the Junior Administrative Grade with effect from 1- 12-1982. 5. On 9-12-1985, a meeting of DPC was convened to prepare a select list of officers for promotion to Level II of Senior Administrative Grade of the ITS. The Senior Grade Group 'A' carried pay scale of ₹ 2250-2500. The meeting was convened pursuant to the requisition sent by the Ministry of Communication to the UPSC for preparing a year- wise panel for 1984, 1985 and 1986, the vacancies being 5, 24 and 25 respectively, in all, 54 vacancies. 6. The Annual Confidential Report dossiers of 104 officers of Junior Administrative Grade service were forwarded along with the requisition on an assessment made by the DPC. The Committee prepared year-wise select panels as also consolidated panel for officiating promotion to the Senior Administrative Grade Level 11 of the ITS Group 'A'. The Committee recommended 5 officers for empanelment for the year 1984, 24 officers for the yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent did not figure in that list. The result is though the name of the respondent was included by the DPC in the first select panel prepared by it, ultimately, he was not appointed since the ACC excluded 5 of the recommended names. It was this exclusion which was challenged before the Tribunal. 9.The Tribunal under the impugned judgment held that the consultation with the UPSC under Article 320(3) of the Constitution of India was directory and not mandatory. The Tribunal placed reliance on the following observations in the decision in Jatinder Kumar v. State of Punjabi: (SCC p. 128, para 12) "This, however does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept the recommendation of the Commission. If, however, the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission. It cannot disturb the order of merit according to its own sweet will except for other good reasons viz. bad conduct or character. The Government also cannot appoint a person whose name does not a pear in the list. But it is open to p the Government to deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the appointing authority. Hence, the Minister concerned alone is the appointing authority. Even assuming ACC is the appointing authority, the grievance of the respondent is, without giving good and sufficient reasons, promotion cannot be denied to him, once he had been approved for promotion by the DPC in consultation with the UPSC which approval has been given by the Minister for Communication. 14. In the instant case, the ACC chose to differ without assigning any reason. In fact, the counsel for the Union of India was unable to produce any material to show that the reasons had been assigned for differing from the DPC. Therefore, the name of the respondent cannot be arbitrarily dropped. It was this arbitrariness which weighed with the Tribunal. On that basis, it rightly concluded that it would be a futile exercise to direct the respondent to make a reference back and have further consultation with the UPSC in the matter. It was under those circumstances deemed promotion was ordered. To this, no exception could be taken. 15. We have given our careful consideration to the above arguments. The Recruitment Rules dated 6-1-1975, at para 29, lay down that: "Appointment on promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , exceptional circumstances exist which in the public interest require such departure. In such a case the reasons for holding this opinion should be communicated to the Commission and the Commission given an opportunity of further justifying their recommendations. On the receipt of the observations of the Commission, their recommendations should be considered further by the Ministry concerned, if, after further consideration, the Ministry still considers that the recommendations made by the Commission should not be accepted, the case should be referred with a self-contained summary to the Establishment Officer of the Government of India who will place it before the Appointments Committee of the Cabinet consisting of the Hon'ble Prime Minister, the Hon'ble Minister for Home Affairs and the Hon'ble Minister concerned administratively with the appointment(s). In cases in which the Hon'ble Home Minister or the Hon'ble Prime Minister happens to be the Minister concerned with the appointment, the Hon'ble Finance Minister will be added to the Committee. The decision reached by the Appointments Committee in all such cases should be communicated to th e Commission by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Level 11 of the ITS with effect from the date his immediate junior was promoted to the said grade. 22.ACC may reconsider these cases within 3 months in the light of the observations at pages 7, 10 and above (paras 13-14 and 18-21 above) and if found suitable, may give promotion with effect from the date, their immediate junior officer was promoted with consequential benefits of seniority and salary etc. 23.Civil Appeal Nos. 1794 of 1988, 3332 of 1988 and 2367 of J989 are allowed. 24.In Civil Appeal Nos. 1726 of 1989, 784 of 1988, 2176 of 1988 and CA No. 6894 of 1994 (arising out of SLP (C) No. 7356 of 1988), CA No. 4669 of 1989, no interference is warranted except to the extent of following modifications: Civil Appeal No. 1726 of 1989 25.The Appointing Authority shall consult the UPSC once again by making reference back to them indicating the reasons for making a departure from the panel recommended by the Commission and also forward the material on which it has reached the conclusion not to appoint the respondent and obtain their views before taking final decision in the matter. In case after consultation with the UPSC, in the manner indicated above, the name of the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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