Appeal No 3273 of 1988
From the Judgment and Order dated 25 11 1987 of the Central Adminstrative Tribunal Jabalpur in Original Application No 68 of 1986
P Parmeshwaran for the Appellants GL Sanghi Ashok Singh and SK Agnihotri for the Respondents
The short question which arises for consideration in this case is whether by reason of the absence of one of the members of a Departmental Promotion Committee at a meeting convened for the purpose of making recommendations regarding the promotion of officers to higher posts in the services under the Government of India the recommendations made by the Departmental Promotion Committee at the meeting would become invalid
The 1st respondent Somasundaram Viswanath was one of the PG NO 149 Officers of the Indian Defence Accounts Service who came within the zone of consideration for promotion to the cadre of Controller of Defence Accounts
In order to make appropriate recommendations in that behalf the Departmental Promotion Committee convened its meeting on 781986
One of the members of the said Committee was the Secretary to the Government of India Ministry of Defence
Even though he had been informed about the date and time of the meeting he could not be present at the meeting and in his absence the remaining members of the Committee made recommendations
The 1st respondent was graded as good  and was not empanelled
Aggrieved by the decision of the Departmental Promotion Committee the 1st respondent filed a petition being Original Application No 68 of 1986 before the Central Administrative Tribunal Jabalpur Bench questioning the validity of the recommendations made by the Departmental Promotion Committee and praying for the issue of an order prohibiting the appellants from promoting his juniors to the higher cadre
In the course of his petition Respondent No 1 raised many pleas but it is not necessary for us to refer to all of them for the purpose of deciding the present case
One of the contentions urged by the 1st respondent which requires to be considered is that the proceedings of the Departmental Promotion Committee at its meeting held on 781986 stood vitiated on account of the absence of the Secretary to the Government of India Ministry of Defence who was one of the members of the Committee
In reply to the above plea the appellants pleaded that the Secretary to the Government of India Ministry of Defence was not present in the meeting due to the fact that he had to attend Parliament on that day and that the proceedings were protected by the departmental instructions issued by the Government of India with regard to the procedure to be followed by the Departmental Promotion Committees
In reply thereto the 1st respondent pleaded that the administrative instructions issued by the Government of India could not override the rules made under the proviso to Article 309 of the Constitution of India and had therefore to be ignored
The Central Administrative Tribunal which heard the case proceeded to set aside the recommendations made by the Departmental Promotion Committee on the main ground that the Committee had not been properly constituted at the meeting held on 781986 because of the absence of the Secretary to the Government of India Ministry of Defence and therefore the proceedings of the Departmental Promotion Committee were not valid
The Tribunal directed that a fresh Departmental Promotion Committee may be convened for reconsidering the agenda which was before the Departmental Promotion Committee on 7  8 appellants have filed this appeal by Special Leave
PG NO 150 Promotions to the posts in Level l and Level II of the Senior Administrative Grade of the Indian Defence Accounts Service are governed by the Indian Defence Accounts Service Recruitment Rules 1958 as amended from time to time hereinafter referred to as the Rules  promulgated under the proviso to Article 309 of the Constitution of India by the President of India
Under the Rules recruitments by promotion to the administrative posts in the Indian Defence Accounts Service have to be made by selection on merit with due regard to the seniority on the recommendation of a duly constituted Departmental Promotion Committee
In Appendix II to the Rules the composition of the Departmental Promotion Commit tees for recommending eligible officers for promotion to the various grades of the Service has been set out
The Departmental Promotion Committee for purposes of promotion to Level l and Level II of the Senior Administrative Grade should consist of i the Chairman Member of the Union Public Service Commission as Chairman ii the Secretary Ministry of Defence iii the Financial Adviser Defence Services and iv the Controller General of Defence Accounts as members
The Rules do not contain the details regarding the functions of the Departmental Promotion Committees the procedure to be followed by them and the requisite quorum at the meetings of the Departmental Promotion Committees
These details had been laid down in a number of official memoranda issued by the Government of India from time to time in the form of departmental instructions prior to 30th December 1976
The Government of India however issued an Office Memorandum bearing No 22011676 EsttD on 30121976 consolidating all the prior administrative instructions governing the functioning of and the procedure to be followed by the Departmental Promotion Committees which were required to be constituted under the several rules of recruitment in force in the various departments of the Government of India
The preamble of the said Office Memorandum reads thus OFFICE MEMORANDUM Sub Procedure for making promotions and functioning of the Departmental Promotion Committee
The undersigned is directed to state that the Ministry of Home Affairs now the Department of Personnel and Administrative Reforms have in the past issued various Office Memoranda on the subject relating to the constitution and functioning of the Departmental Promotion Committees and PG NO 151 the procedure to be followed in making promotions
With a view to making such instructions issued from time to time handy and available at one place it has now been decided to consolidate all these instructions
Accordingly the following instructions are hereby issued on the subject for the guidance of all the Ministries Departments in the Government   Paragraph VII of the said Office Memorandum which deals with the validity of the proceedings of Departmental Promotion Committees when one member is absent reads thus The proceedings of the Departmental Promotion Committee shall be legally valid and can be operated upon notwithstanding the absence of any of its members other than the Chairman provided that the member was duly invited but he absented himself for one reason or the other and there was no deliberate attempt to exclude him from the deliberation of the DPC and provided further that the majority of the members constituting the Departmental Promotion Committee are present in the meeting According to Paragraph VII of the Office Memorandum extracted above it is clear that the absence of any of the members of a Departmental Promotion Committee other than the Chairman would E not vitiate the proceedings of the Departmental Promotion Committee provided that the member absent has been duly invited but he absented himself for some reason and that there was no deliberate attempt to exclude him from the deliberation of the Departmental Promotion Committee and that the majority of the members constituting the Departmental Promotion Committee are present in the meeting
In the instant case the only person who was absent at the meeting of the Departmental Promotion Committee was the Secretary to the Government of India Ministry of Defence who could not attend the meeting because he had to be present in Parliament at the same time at which the Departmental Promotion Committee had to meet
Th e Chairman of the Departmental Promotion Committee was present and the Chairman and the other members who were present constituted the majority of the Departmental Promotion Committee
It was urged on behalf of the 1st respondent that the Office Memorandum dated 30121976 which contained the various administrative instructions regarding the procedure for making promotions and the functions of the Departmental Promotion Committees being merely in the nature of PG NO 152 administrative instructions could not override the Rules which had been promulgated under the proviso to Article 309 of the Constitution of India
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 made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments
If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India the rules made under proviso to Article 309 of the Constitution of India prevail and if there is conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate Legislature the law made by the appropriate Legislature prevails
The question for consideration is whether in the instant case there is any conflict between the Rules and the Office Memorandum dated 30121976 referred to above
We have already noticed that there are different rules framed under the proviso to Article 309 of the Constitution of India for making recruitments to services in the different departments and provisions have been made in them for the constitution of Departmental Promotion Committees for purposes of making recommendations with regard to promotions of officers from a lower cadre to a higher cadre
But these rules are to some extent skeletal in character
No provision has been made in any of them with regard to the procedure to be followed by the Departmental Promotion Committees and their various functions and also to the quorum of the Departmental Promotion Committees
These details which were necessary for the proper functioning of the Departmental Promotion Committees as a matter of practice were laid down prior to 30121976 by the Government of India in the form of Office Memoranda issued from time to time and that on 30121976 a consolidated Office Memorandum was issued containing instructions with regard to such details which were applicable to all Departmental Promotion Committees of the various MinistriesDepartments in the Government of lndia
said Office Memorandum deals with several topics such as of the Departmental Promotion Committees frequency at which Departmental Promotion Committees should meet matters to be put up for consideration by the Departmental Promotion Committees the procedure to be observed by the Departmental Promotion Committees
the procedure o be followed in the PG NO 153 case of an officer under suspension whose conduct is under investigation or against whom disciplinary proceedings are initiated or about to be initiated validity of the proceedings of the Departmental Promotion Committees when a member is absent the need for consultation with the Union Public Service Commission the procedure to be followed when the appointing authority does not agree with the recommendations of a Departmental Promotion Committee implementation of the recommendations of the Departmental Promotion Committees ad hoc promotions period of validity of panels etc
The Office Memorandum dated 30121976 therefore is in the nature of a complete code with regard to the topics dealt with by it
Unless there is anything in the Rules made under the proviso to article 309 of the Constitution of India which is repugnant to the instructions contained in the Office Memorandum the Office Memorandum which is apparently issued under article 73 of the Constitution of India is entitle to be treated as valid and binding on all concerned
In the instant case the Rules do not contain any of these details except indicating who are all the persons who constitute the Departmental Promotion Committee
We do not therefore find any repugnance between the Rules and the Office Memorandum
In the circumstances we feel that the plea raised by the 1st respondent in is additional affidavit dated 13th May 1988 page 132 of the Paper Book that the Office Memorandum is ineffective cannot be upheld
We do not agree with the decision of the Central Administrative Tribunal that in the instant case the proceedings of the Departmental Promotion Committee on 781986 have been vitiated  solely on account of this reason viz that secretary Ministry of Defence one of its members was not present
We hold that the proceedings of the Departmental Promotion Committee at is meeting held on 781986 are not invalid for the above reason
We therefore reverse the aforesaid part of the decision of the Tribunal
The Tribunal has no doubt in the course of its order referred to certain other matters but we feel that it proceeded to dispose of the case mainly on the ground that the proceedings of the Departmental Promotion Committee dated 781986 were vitiated on account of the absence of the Secretary to the Government of India Ministry of Defence at that meeting
We notice that adequate attention has not been given to the other aspects of the case and according to us those aspects require fresh consideration at the ands of the Tribunal
We therefore set aside the decision of the Tribunal against which this appeal is filed and remand the case to it to dispose it of afresh in the light of the above observations
The Tribunal is requested to decide the case within three months from the PG NO 154 date of receipt of a copy of this order
The appeal is accordingly disposed of
There shall however be no order as to costs
Y Lal Appeal disposed of


Summary:
Mohini R Adwani a member of the Maitrai Co operative Housing Society Ltd was allotted flat No15 in Societies F  building in Scheme No I at Chambur Bombay 71
She inducted the appellant in the premises aforesaid without obtaining the prior written consent of the society on the basis of a leave  licence agreement for a period of 11 months
The said society was divided by order of the Assistant Registrar Co operative Housing Society Ltd Bombay into two units ie Maitra Park Co operative Housing Society Ltd Chambur and the Maitra BUoy Co operative Housing Society Ltd Chambur 74 Scheme No 2 the former being the owner of the building in Scheme No i including building No F 
Thus on division Smt
Mohini R Adwani automatically became a member of the disputed society in respect of the said flat No 15 in F  building
The appellant after the expiry of the period of the licence was occupying the premises unauthorisedly  was asked to vacate the flat by the member of the society
As he did not accede to her request
the society had to take steps for evicting the appellant from the said flat so that Respondent 2 could occupy the same for her residence
The society accordingly served a notice on the appellant asking him to vacate the flat
On his failure to vacate the society filed a dispute before the Co operative Court for eviction of the appellant who was in unauthorised occupation of the premises and was using the residential flat for canteen purposes in violation of the bye laws framed by the Society
The appellant questioned the jurisdiction of the Co operative Court to entertain the matter on the ground that the dispute in question does not come within the purview of section 91 of the Co operative Societies Act as he was continuing in possessing as licencee and the member of the Society was receiving licence fee from him till the date of filing the dispute
He also asserted that in one of the receipts issued to him the word rent has been used
He also pleaded that as a licencee he has became a tenant us 15A of the amended PG NO 33 Bombay Rent Act on and from 1st February 1973
The Co operative Court found against the appellant and made an award holding that the dispute is covered us 91 of the Maharashtra Co operative Societies Act 1960 as the appellant is claiming to be in possession of the flat as licencee through a member of the Society
It also held that there was no subsisting agreement of licence in favour of the appellant on the date of the coming into force of section 15A of the Bombay Rent Act and as such the appellant could not become deemed tenant
Appellant s appeal before the Maharashtra State Co operative Appellate Court having failed he moved the High Court by means of Writ Petition
On dismissing the Writ Petition by the Bombay High Court the appellant filed this appeal by special leave
Following the Court s Judgment in CA
No 472 of 1985 M section A VR  Co  Ors
vs Fairfield Co operative Housing Society Ltd 1988 Supp
3 SCR 84 Court dismissed the appeal but directed that the decree should not be executed for a period of 4 months subject to the appellants filing usual undertaking
The Court HELD That the dispute in question comes within the purview of section 91 of the Maharashtra Co operative Societies Act 1960 as the appellant claims to be in possession of the flat through a member of the Society which is a Co partnership Housing Society and Sec
15A of the Bombay Rent Act does not apply as there was no subsisting agreement of licence on 121973
34G H35A