UNION OF INDIA & ORS. versus SOMASUNDRAM VISWANATH & ORS.

Citation: [1988] SUPP. 3 S.C.R. 146 · Decided: 22-09-1988 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Disposed off

Judgment (excerpt)

A 
UNION OF INDIA & ORS. 
v. 
SOMASUNDRAM VISWANATH & ORS. 
SEPTEMBER 22, 1988 
B 
)E.S. VENKATARAMIAH AND N.D. OJHA, JJ.) 
c 
D 
Civil Services: Government of India O.M. ·dated December 30, 
1976-'-Procedure for making promotions and functioning· of Depart-
mental Promotion Committee-D.P.C.-One of the Members of 
Committee not present at the meeting of D.P.C.-Proceedings whether 
vitiated. 
Constitution of India 1950-Articles 73, 162 and 309 Civil 
Services-Recruitment and promotion-Norms-Can be laid down 
either by law of appropriate Legislature or by statutory service ru/es-
Conflict between executive instructions and rules-Rules prevail. 
Somasundram Viswanath, Respondent No. l herein was working as an 
officer in the Defence Accounts Service. Promotions to Level I & Level II 
of the Senior Administrative Grade of the said Service were governed 
by the Indian Defence Accounts Service (Recruitment) Rules, 1958 (as 
amended from time to time) promulgated by the President of India 
E under the proviso to Art. 309 of the Constitution of India. Under the 
Rules, recruitments by promotion to the senior administrative posts 
were to be made by Selection on merit on the recommendations of a 
duly constituted Departmental Promotion Committee. In accordance 
with the said Rules, when the case of the Respondent came within the 
Zone of •consideration for promotion to the cadre of Controller of 
F Defence Accounts, the same was placed before the Departmental Promo-
tion Committee, and the said Committee in order to make appropriate 
recommendations convened its meeting on 7 .8.1986. At the said meet-
ing one of its members i.e. the Secretary to the Ministry of Defence 
could not be present even though he was duly notified about the date 
and time of the meeting. In his absence the remaining members met and 
G made the recommendation. The lst Respondent was graded 'good' and 
was not put in the Select panel. 
Aggrieved by the said decision Respondent tiled a Petition before 
the Central Administrative Tribunal, Jabalpur Bench, challenging the 
validity of the recommendations made by the Department Promotion · 
H Committee and prayed for an order directing the appellant-Union of 
146 
U.0.l. v. SOMA SUNDRAM 
147 
India-not to promote his junior§ to the higher grade. The principal 
contention raised by the Respondent before the Tribunal was that the 
Dtpartmental Promotion Committee was not properly constituted, as 
one of its members, was absent with the result the proceedings of its 
meeting held on 7 .8.1986 stood vitiated and recommendation made by it 
should not be acted upon. On the other hand the Dept!. contended that 
the proceedings of the Committee were protected by the administrative 
instructions issued by the Government of India with regard to the pro-
cedure to be followed by the D.P.C. In reply thereto the lst Respondent 
pleaded that the administrative instructions issued by the Government 
of India could not override the rules made under the proviso to Art. 309 
of the Constitution and the same has to be ignored. 
On ·consideration of the rival contentions the Central Administra· 
tive Tribunal came to the conclusion that the D.P.C. had not been 
properly constituted at the meeting held on 7.8.1986 because of the 
absence of the Secretary to the Govt. of India, Ministry of Defence 
and therefore the proceedings of the said Committee were not valid. 
The Tribunal accordingly set aside the recommendations made by the 
Committee aud directed that a fresh D.P.C. may be convened for recon· 
sidering the agenda which was before the Departmental Committee on 
7.8.86. 
The Union of India being dissatisfied with the aforesaid order of 
the Tribunal appealed by special leave, to this Court. 
Disposing ofthe appeal, the Court, 
A 
B 
c 
D 
E 
HELD: It is well settled that the norms regarding recruitment 
and promotion of officers belonging to the Civil Services can be laid 
down either by a law made by the appropriate Legislature or by rules 
F 
made under the proviso to Article 309 of the Constitution of India or by 
means of executive instructions issued under Article 73 of the Constitu· 
lion of India in the. case of Civil Services under the Union of India and 
under Art. 162 of the Constitution of India in the case of Civil Services 
under the State Governments. [l52B] 
If there is a conflict between the executive instructions and the 
rules made under the proviso to Article 309, the rules made under the 
proviso to A

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