R.S Dass Vs. Union of 'India &
Ors, [1986] INSC 265 (11 December 1986)
SINGH, K.N. (J) SINGH, K.N. (J) MUKHARJI,
SABYASACHI (J)
CITATION: 1987 AIR 593 1987 SCR (1) 527 1986
SCC Supl. 617 JT 1986 1043 1986 SCALE (2)1012
CITATOR INFO:
F 1988 SC1069 (7) R 1990 SC1402 (26) R 1992
SC1806 (7)
ACT:
Constitution of India,' 1950--Arts. 14 and
16-Members of State 'Civil Service (Executive)--Promotion to Indian
Administrative Service--Selection--Merit sole basis--Seniority--Whether confers
any legal right on a Government servant for promotion-Whether such right
protected by Arts. 14 and 16--Eligible officers considered on merit in an
objective manner--Non-selection of seniors--Whether amounts to supersession--Whether
Selection Committee required to record reasons for non-selection of seniors-Whether
non--recording of reasons under amended Regulation 5(4) and (5) of IAS
(Appointment by Promotion) Regulations 1955 violative of Arts. 14 and 16.
Natural Justice--Civil
Service--Promotion--Selection on Merit alone--Eligible officers considered on
merit in an objective manner-Seniors not selected--Seniority--Whether confers
any legal right on a Government Servant--Whether opportunity required to be
given to the superseded officer for making representation--Rules of natural
justice Application of--Depends upon the setting and the background of
statutory provisions, nature of the right affected and the consequences which
may entail.
Civil Service--Indian Administrative Service
(Appointment by Promotion) Regulation, 1955 Regulations 3, 5(4), (5) & (7),
6 and 8 and Indian Administrative Service (Recruitment) Rules, 1954--Rules 4
and 8(i)--Members of Punjab State Civil Service (Executive)Promotion 40 Indian
Administrative Service--Selection--Merit alone to be considered--Seniority--Whether
confers any legal right on a Government Servant for Promotion--Whether such
right protected by Arts. 14 and 16--Eligible officers t0 be considered in an
objective manner--Non-selection of seniors--Whether amounts to supersession-Whether
Selection Committee/State Government required to give reasons for non-selection
of seniors--Non-recording of reasons for supersession--Select List--Validity
of--Whether Promotion Regulations 3, 5 and 7 ultra vires Recruitment Rule 8(1).
Services--Categorisation of eligible officers
as 'Outstanding', 528 'Very Good', 'Good' and 'Unfit' for purposes of
Promotion--Basis of categorisation should be objective and not merely
subjective evaluationService record-Character roll entries-Importance of.
Administrative action--Power--Vested in a
high authority-Whether sufficient safeguard against arbitrariness and misuse of
power--Presumption--Whether power would be exercised reasonably-Judicial
review--Scope, of Delay in forwarding comments to Public Service Commission by
State Government--Whether constitutes mala fides.
HELD:
The Central Government under s.3 of the All
India Services Act, 1951 framed Indian Administrative Service (Recruitment)
Rules, 1954. According to Rule 4 recruitment to the Indian Administrative
Service is made by: (i) direct recruitment through competitive examination;
(ii) promotion of substantive members of the State Civil Service (Executive)
and (iii) selection from amongst persons holding posts in substantive capacity
in connection with the affairs of the State, who may not be members of the
State Civil Service. Under Rule 8(1) the Central Government framed the Indian
Administrative Service (Appointment by Promotion) Regulations, 1955 laying down
procedure for selection for appointment to the service by promotion. Regulation
3 provides for the Constitution of a Selection Committee. Regulation 5 provides
that the Committee shall prepare the list of such members of the State Civil
Service found suitable for promotion to the service on an over all relative
assessments of the service. The State Government shall forward this list to the
Union Public Service Commission along with the records of the selected members
as well as of those proposed to be superseded together with the observations of
the State Government on the recommendation of the Committee' for consideration
of the Union Public Service Commission and the list so approved shall form the
Select List of the members of State Civil Service and shall be in force until a
fresh list is prepared and approved for the subsequent year.
Regulation 8 lays down that the appointment
shall be made by the Central Government on the recommendations of the State
Government in the order in which the names of members of the State Civil
Service appear in the Select List. In the process of preparing the Select List
if the seniors are not found suitable for promotion and their names in the
Select List are not included and, if junior officers are found suitable for the
inclusion of the names in the Select List, the seniors stand superseded, as the
selection is made on merit and not on the basis of seniority.
Three members of the Punjab State Civil
Service (Executive) filed 529 separate petitions under Art. 226 challenging the
validity of the Select List of 1978 for promotion to the LA.S. alleging: (i)
that they were eligible for promotion to the Indian Administrative Service, but
their names were not included in the Select List while names of officers Junior
to them were included, thereby superseding them in an arbitrary manner without
recording any reasons; (ii) that the mandatory provisions of Regulation 6 of
the Indian Administrative Service (Appointment by Promotion) Regulations, 1955
were violated as the service records of eligible State Officers including the
petitioners had not been forwarded to the Union Public Service Commission;
(iii) that amendment made in Regulation 5 deleting the provision which required
reasons to be recorded for the supersession of a State Officer, was arbitrary
and violative of Article 14; (iv) that the Regulations were ultra vires being
inconsistent with the Indian Administrative Service (Recruitment) Rules, 1954;
(v) that one officer had earned adverse remarks and yet he was selected; (vi)
that important material relating to the petitioners' service including
certificate and letters of recommendations were not considered by the Selection
Committee.
A Division Bench of the High Court by a
Common Judgement in Baldev Kapoor's case [(1980) 2 SLR 309] dismissed all the
petitions holding that the Select List prepared for the year 1978 did not
suffer from any legal infirmity. During the pendency of these petitions Select
List for the year 1979 was also prepared and the name of one of the petitioners
was not included in that list also. Another writ petition challenging that
Select List was also filed on the same grounds and dismissed.
In similar Writ Petitions, the Full Bench of
the High Court to whom the matter was referred for consideration on the
question as to whether the Select List of 1978 was vitiated for non-compliance
of Regulation 6(iii) inasmuch as reasons for supersession of senior officers
were not forwarded to the Commission, held that the decision of the Supreme
Court in Chothia's case [1978) 3 SCR 652] did not affect the position and the
Division Bench's decision in Baldev Kapoor's case (supra) correctly laid down
the law.
Appeals were filed in this Court and during
their pendency 15 other officers filed petitions under Art. 32 challenging the
validity of Select Lists for the years 1979 and 1980. Some other officers filed
similar petitions challenging the validity of Select Lists prepared for the
year 1983.
Select Lists for the years 1978, 1979, 1980
and 1983 were challenged almost on similar grounds.
530 In the present appeals and petitions, on
behalf of the appellants and petitioners it was contended: (1) that the Select
Lists of 1978, 1979, 1980 and 1983 were vitiated as the Selection Committee did
not record any reasons in superseding the appellants/petitioners while
excluding their names and including the names of junior officers in the Select
Lists; (2) that the amendment of the Regulation 5(7) was violative of Articles
14 and 16 as it conferred unguided power on the Selection Committee to
supersede senior officers; (3) that the Select List prepared for the year 1978
was vitiated for non-compliance of Regulation 6(iii) as reasons recorded by the
Selection Commitee were not forwarded by the State Government to the Commission
along with record of officers proposed to be superseded; (4) that even if under
the Regulations no reasons were necessary to be recorded, principles of Natural
Justice and fair play required. that reasons should have been recorded; (5)
that the Select Lists prepared for the years 1978 and 1979 were vitiated on
account of unauthorised participation of Shri LC. Puri as a Member of the
Selection Committee; (6) that the Regulation 3 and 5 of the Promotion
Regulations were violative of Rule 8(1) of the Recruitment Rules inasmuch as
the Promotion Regulations impinge upon the State Government's power to make
recommendations for appointment to the service; (7) that the State Government
deliberately delayed its comments on the Select List prepared for 1980 to the
Public Service Commission with a view to give undue advantage to the officers
included in the 1979 list for promotion to the Indian Administrative Service.
Dismissing the Appeals and Writ Petitions,
HELD: By the Court (Mukharji & K.N. Singh,
JJ.) Having regard to the legislative history and the purpose and the object
which was sought to be achieved by the amendments there could be no mandatory
legal obligation on the Committee to record reasons. Regulation 6(iii) merely
required the State Govt. to forward reasons if recorded for supersession of the
officers to the Commission, but if no reasons were recorded the State
Government was under no legal obligation to forward the same to the Commission
and its non-compliance did not vitiate the Select List. The entire system of
selection has been changed on account of amendment in the regulations. [552F-G;
D-E] Gurdayal Singh Fiji v. State of Punjab & Ors., [1981] 1 SCR 904,
followed.
531 Union of India v. Chothia (H.P.) &
Ors. etc. etc., [1978] 3 SCR 652 and Union of India v. Mohan Lal Capoor &
Ors., [1974] 1 SCR 797, distinguished.
P.C. Pradhan v. Union of India & Ors.,
[1981] 1 SLR and J.S'. Chopra's case [1980] 2 ILR Punj. 477, approved. Per K.N.
Singh, J.
1.1 Regulation 5(5) of the Indian
Administrative Service (Appointment by Promotion) Regulations, 1955 provided
that if in the process of selection, review or revision it is proposed to
supersede any member of the State Civil/Police Service the Selection committee
shall record its reasons for the proposed supersession. Regulation 5 was,
however, amended by Notification dated 3.1.1977. [545G]
1.2 The amended provisions of Regulation 5
have curtailed and restricted the role of seniority in the process of selection
as it has given primacy to merit. Now the Committee is required to categorise
the eligible officers in four different. categories, namely,
"Outstanding" "Very good", "Good" and
"Unfit" on overall relative assessment of their service records.
After categorisation is made the Committee has to arrange the names of officers
in the Select List in accordance with the procedure laid down in Regulation
5(5). In arranging the names in the Select List the Committee has to follow the
inter-se seniority of officers within each category. In this process a junior
officer if categorised "Outstanding" or "Very good" would
supersede his seniors. [547A-E]
1.3 Where promotion is made on the basis of
seniority, the senior has preferential right to promotion against his juniors,
but where promotion is made on merit alone, senior officer has no legal right
to promotion and if juniors to him are selected for promotion on merit the
senior officer is not legally superseded. [547E-F]
2. I Article 16 ensures equality in matters
relating to appointment and promotion to an office or post under the State. It
enjoins State not to practise discrimination in matters relating to
appointment, and promotion. A member of the State Civil ServiCe eligible for
selection for promotion to the I.A.S. has right to be considered alongwith
others for selection for promotion. If eligible officers are considered on
merit in an objective manner, no Government servant has any legal right to
insist for promotion nor any such right is protected by Article 14 or 16 of the
Constitution. Article 16 does not insist that reasons should be recorded for
the non-selection of a member of a State Service. [548A-C] 532
2.2 In the absence of a statutory provision
an Administrative Authority is under no legal obligation to record reasons in
support of its decision. There is no scope for applying principles of natural
justice in matters relating to selection of suitable members of State Service
for promotion to a higher service. [548D-E]
2.3 Rules of natural justice are not rigid
rules. They are flexible and their application depends upon the setting and the
back-ground of statutory provisions, nature of the right which may be affected
and the consequences which may entail, in the facts and circumstances of each
case. These principles do not apply to all cases and situations. Application of
these uncodified rules is excluded in the interest of administrative efficiency
and expedition. Sometimes legislation itself excludes the application of the
rules by express provision or by implication. [550B-D]
2.4 In the instant case, statutory
Regulations do not expressly or by implication apply the rule of audi alteram
partem in making the selection. On the other hand the scheme contained under
the Regulations exclude the applicability of the aforesaid rule by implication.
Select List is prepared each year which ordinarily continues to be effective
for a year or till the fresh Select List is prepared. If during the process of
selection a senior officer is proposed to be superseded by virtue of not being
included in the Select List, and if opportunity is afforded to him to make
representation and only thereafter the List is finalised, the process would be
cumbersome and time consuming. In this process it will be difficult for the
Committee to prepare and finalise the Select List within a reasonable period of
time and the very purpose of preparing the Select List would be defeated.
Scheme of the Regulations, therefore, clearly warrants exclusion of principles
of audi alteram partem. No vested legal right of a member of the State Civil
Service who after being considered, is not included in the Select List is
adversely affected. Non-inclusion in the Select List does not take away any
right of a member of the State Civil Service that may have accrued to him as a
Government. Therefore, no opportunity is necessary to be afforded to him for
making representation against the proposed supersession.
[550G-H; 551A-C] A.K. Kraipak & Ors.,
etc. etc., v. Union of India & Ors., [1970] 1 SCR 457, Union of India v.
Col. J.N. Sinha & Anr., [1971] 1 SCR 791, Chairman Board of Mining
Examination & Anr., v. Ramjee, [1977] 2 SCR 904 and Union of India &
Anr., v. Tulsiram Patel etc., [1985] 3 SCC 398, relied upon.
3.1 The scheme contained in promotion
Regulations and the 533 criteria prescribed therein for preparing the Select
List do not justify the apprehension that in the absence of reasons there would
be no objectivity and the selection would be made in an arbitrary manner
over-looking the claim on a senior officer eligible for promotion to the Indian
Administrative Service. The principal object of the promotion system as
contained in the Regulations is to secure the best possible incumbents for
promotion to the Indian Administrative Service which is the back-bone of the
administrative machinery of the country. The efficiency of the administration
in the Union as well as in the State largely depends upon the 'efficiency of
the members of the Indian Administrative Service. Efficient public service is
in public interest and the public interest is best secured if reasonable
opportunity for promotion exists for all qualified members of the State Civil
Service and only those who are found efficient and suitable in all respect are
promoted.
This object is sought to be achieved by the
Regulations in prescribing merit as the sole test for promotion. [553B-D]
3.2 In order to judge the merit, the
Regulations provide for categorisation of eligible members of the State Civil
Service on the basis of their service records which are scrutinised by the
Committee consisting of high ranking officers of the State Government and the
Central Government.
The service records of all eligible officers
whose names are included in the proposed Select List and the records of even
those who are not selected is again scrutinised by the State Government and the
Union Public Service Commission and only thereafter final shape is given to the
Select List. There are, therefore, adequate checks and safeguards at different
stages by different authorities. The machinery designed for preparation of
Select List under the Regulations for promotion to All India Service, ensures
objective and impartial selection. Where power is vested in high authority,
there is a presumption that the same would be exercised reasonably.
However, if the selection is made on
extraneous considerations, in arbitrary manner, the Courts have ample power to
strike down the same and that is an adequate safeguard against the arbitrary
exercise of power. Therefore, it cannot be held that in the absence of reasons
the selection would be made arbitrarily. [553D-H; 554A-C]
4. There are various methods of selection
viz. by competitive examination, written test-cum-viva-voce, or by assessment
of service records. For the purpose of recruitment to the Indian Administrative
Service from amongst the officers of the State Civil Service, latter method,
namely, selection on the basis of scrutiny of service records has been
accepted. [554E-F] 534 Parvez Qadir v. Union of India & Ors., [1975] 2 SCR
432, relied upon.
5.1 There is hardly any scope for applying
different standards or criteria at different times as the service records,
namely, the character roll entries would indicate the category of the officers
as adjudged by the authority recording annual confidential remarks. In Punjab
the authority competent to record annual remarks in the character coils of
members of the State Civil Service, has been directed to indicate the category
of the officer, e.g. whether the officer is "Outstanding", "Very
Good" or "Good". Under instructions issued by the Union
Government all the State Governments are following similar pattern in
categorising members of the State Civil Service in the annual remarks made in
their confidential records. This has brought uniformity in the character role
entries. [555G-H; 556A-C]
5.2 Since category of members of State Civil
Service is available in their service records, the Committee has no discretion
to disregard the same. Therefore, there is no merit in the submission that
Regulations 3 and 5 are discriminatory and they violate Articles 14 and 16 of
the Constitution. [556C-D]
6.1 The material placed on record leaves no
doubt that Shri I.C. Puri designated as Financial Commissioner (Development)
was also discharging the duties and functions of the Development Commissioner.
He was, therefore, holding the dual charge as no separate post of Development
Commissioner had been sanctioned by the Government. These facts clearly show
that for all purposes Shri Puff was working as Development Commissioner. As
Financial Commissioner (Development) he was exercising same powers and
discharging same functions which could he performed by a Development
Commissioner, therefore he was competent to participate in the deliberations of
the Selection Committee. Moreover, at no stage any objection was raised against
functioning of Shri Puri as a member of the Selection Committee or his
participation in the deliberations. There is further no allegations of mala
fide or bias against Shri Puff. There is evidence on record to show that
recommendations of the Selection Committee constituted under Regulation 3 were
unanimous, which were scrutinised by the State Government and the Union Public
Service Commission before the same were approved. [557H;
558A-C]
6.2 In the instant case, the validity of the
recommendations made or the preparation of select List of 1979 are not vitiated
as Shri I.C.
535 Puri was neither biased against any of
the appellant/petitioners, nor there was any conflict between his personal
interest and duty. Shri Pun had no interest in the inclusion or exclusion of
any member of the State Civil Service nor he had any personal interest in
preparing the List. There is no allegation of bias or malice against Shri Puri.
His participation in the meeting of the Selection Committee did not render the
Select List of 1979 illegal. [558H; 559A]
7. The Central Government has framed
promotion Regulations which provide method and manner of selection. Regulation
3 provides for constitution of Selection Committee to prepare List of suitable
officers in accordance with Regulation 5. The list so prepared is forwarded by
the State Government to the Union Public Service Commission along with the
records and the observations of the State Government in accordance with
Regulation 6. Thereafter, the Commission considers the List under Regulation 7.
The Commission shall finally approve the List received from the State
Government with such modification as in its opinion it may be just and proper
and this List forms the Select List of members of State Civil Service which
ordinarily remains in force until its review and revision. Regulation 9 lays
down that the appointment of members of State Civil Service shall be mode by
the Central Government on the recommendations of the State Government in the
order in which their names appear in the Select List. These Regulations do not
in any manner impinge upon the powers of the State Government to make
recommendations to the Central Government as contemplated by Rule 8 of the IAS
(Recruitment) Rules, 1954. Therefore, Regulations 3, 5 and 7 of the IAS
(Appointment by Promotion) Regulations, 1955 are not ultra vires. [559F-H; B]
8. In the instant case, the Select List of
1979 continued to he effective till Select List for the year 1980 was finally
approved. The officers included in the Select List of 1979 were promoted and
appointed to IAS before the final approval of the Select List for the year
1980. Therefore, no exception can be taken to the validity of their
appointment. The delay made by the State Government in forwarding its comments
to the Union Public Service Commission with regard to the 1980 List did not
cause any prejudice to the petitioners as none them was selected for inclusion
in 1980 List. Merely because the State Government forwarded its recommendations
with delay is not sufficient to justify inference that the delay was purposive
with a view to grant undue favour of select List and its final approval is time
consuming, sometimes delay may be inevitable. State Government should take 536
action well in advance to avoid any delay. If undue delay is caused in
preparation of Select List, it provides occasions for suspicion against the
authorities and it is likely to generate frustration and heart burning among
the members of the State Civil Service which would obviously be detrimental to
public administration. [560F; 561A-B] Per Mukharji, J.
I. It cannot be said now-a-days if one is
aware of the facts and currents of Me that simply because categorisation and
judgment of the service records of officers are in the hands of senior officers
is a sufficient safeguard. There has been considerable erosion in the intrinsic
sense of fairness and justice in the senior officers by all concerned. From the
instances of conduct of many, some of senior officers and men in high position,
it cannot be said that such erosion is not only unjustified. [539A-B]
2. In order to rule out any grievance actual
or fancied, some objective basis for the categorisation should be laid down. If
such objective basis are made known, the fact that after categorisation, the
selection of junior officers in preference to senior officers need not state
reasons and would not be violative of the canons of justice but otherwise there
will be room for suspicion and that too would not be wholly unjustified. [539C]
3. It is suggested to the Government and the
authorities concerned that there should be some basis for the categorisation.
of the officers and such basis should be objective and not merely subjective
evaluation and furthermore such basis should be formulated in the form of
guidelines. [539D]
4. Objectivity in subjective evaluation of
the worth of the different officers would go a long way to generate a feeling
that justice has been done and unless members of the administration feel that
justice has been done to them, the administration cannot become an effective
weapon for social change ushering social justice. [539D-E]
CIVIL APPELLATE JURISDICTIIN: Civil Appeal No.
4370 of 1983 etc.
From the Judgment and Order dated 26.11. 1979
of the Punjab and Haryana High Court in Civil Writ No. 3821 of 1979.
537 R.K. Garg, R.S. Dass-in-person, B.S.
Khoji, Arun Madar & T.S. Arora for the Appellants/Petitioners.
G.A. Shah, V.C. Mahajan, Anil Dev Singh, L.K.
Gupta, C.V. Subba Rao, R.S. Sodhi, G.D. Gupta, A.C. Sharma-in-person, Arvind
Minocha, Inderjit Malhotra, M.S. Dhillon for the Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. I have had the advantage of reading the judgment in
draft to be delivered by my learned brother K.N. Singh, J. I agree with him
that the appeals and the writ petitions herein should be dismissed without any
order as to costs. I also respectfully agree with him on the conclusions he has
reached on the different contentions urged before us in these cases. It is not
necessary to refer to the facts and the issues which have been exhaustively
discussed by my learned brother. There is, however, one aspect of the matter on
which I have certain reservations and I would like to express my views on this
aspect so that the Government and the authorities concerned may try to evolve a
little more objective basis on that aspect.
As mentioned, the validity of the Select Lists
of 1978, 1979, 1980 and 1983 for promotion to the Indian Administrative Service
was impugned in these matters on the ground that the Committee had not recorded
any reasons for superseding the appellants and/or petitioners. The question of
recording of reasons had been discussed in the decision of this Court where
Select List was quashed on the ground that the Committee had failed to record
reasons in superseding senior officers. In view of Regulation 5(1) to 5(5) as
prevailing at the relevant time which came up for interpretation in Union of
India v. Mohan Lal Capoor & Others, [1974] 1 SCR 797, this Court quashed
the Select List on the ground that the Committee had failed to record reasons
in superseding senior officers. It was held that it was incumbent on the
Selection Committee to have stated reasons in view of the said Regulation in a
manner which would disclose as to how the record of superseded officers was
judged in relation to the record of those officers who were preferred for
selection. This Court reiterated in the context of the said Regulation that
there was a mandatory obligation to record reasons in superseding senior
officers, and therefore 'in the absence of such reasons the Select List had
been vitiated.
Regulation 5 was, however, as noted by my
learned brother, amended by Notification dated 3rd January, 1977 and after the
amend538 ment, Regulation 5(4) and 5(5) was altered. It was provided that the
Selection Committee should classify eligible officers as 'Outstanding",
"Very Good", "Good" or 'Unfit" as the case might be on
overall relative assessment of their service record. The Committee was required
to categorise officers in four categories on the basis of an overall relative
assessment of service record of the officers. After categorisation the
Committee was required to place the names of those officers first on the list
who might be categorised as "Outstanding" and thereafter those
officers as mentioned aforesaid. Under the amended Regulation if a senior
officer is superseded, the amended Regulation 5(5) does not require the
Committee to record reasons for such supersession. The new amended Regulation
emphasised that the merit and suitability was the governing consideration and
seniority played only a subsidiary role. It was only when merits were roughly
equal, seniority was the relevant determining factor. Regulation 5(5) as it
stood prior to Capoor's case laid emphasis on the role of seniority. This has
been done away with.
It is stated on behalf of the respondents
that it was felt difficult to record reasons in the prescribed manner as laid
down by this Court in the said decision and the question was considered by a
Conference of Chief Secretaries in May, 1976 and was further considered. The
Committee recommended that the system of categorisation' of officers for
promotion to the higher post should be followed in case of All India Service
also and thereafter the categorisation as noted above was introduced in
consultation with the State Governments. Indeed the amended provision
Regulation 5 minimised the role of seniority in the process of selection and
importance and primacy was given to merit. This indeed is a laudable object and
helps in having the best for the country. It is also true that if selection is
made on merit alone for promotion to higher service, selection of such an
officer though junior in service in preference to his senior does not really
amount to supersession. If promotion is made on merit alone, the senior officer
per se has no legal right to promotion and if promotion is made on merit, it
cannot be said that a senior officer has been superseded. It has been
emphasised that the categorisation is done on the service record. This has also
been emphasised that such categorisation is done on the service record
including confidential character rolls as maintained by senior officers holding
high positions. It is, therefore, according to my learned brother, sufficient
safeguard against arbitrary categorisation and misuse of power. I have my reservations
on this aspect though I accede the position that in the absence of any other
practicable solution, this is perhaps a sufficient safeguard and perhaps 539 a
practical way of facing a rather delicate task. It cannot be said now-a-days if
one is aware of the facts and currents of life that simply because
categorisation and judgment of the service record of officers are in the hands
of senior officers is a sufficient safeguard. There has been considerable
erosion in the intrinsic sense of fairness and justice in the senior officers
by all concerned. From the instances of conduct of many, some of senior
officers and men in high position, it cannot be said that such erosion is not
only unjustified.
In order to rule out any grievance actual or
fancied, some objective basis for the categorisation in the manner indicated
should be laid down. If.such objective basis are made known, the fact that
after categorisation, the selection of junior officers 'in preference to senior
officers need not state reasons and would not be violative of the canons of
justice but otherwise there will be room for suspicion and that too would not
be wholly unjustified.
I would therefore like to suggest to the
Government and the authorities concerned that there should be some basis for
the categorisation of the officers and such basis should be objective and not
merely subjective evaluation and furthermore such basis should be formulated in
the form of guidelines. Objectivity in subjective evaluation of the worth of
the different officers would go a long way to generate a feeling that ,justice
has been done and unless members of the administration feel that justice has
been done to them, the administration cannot become an effective weapon for
social change ushering social justice, I, however, hasten to add that in these
cases I agree with my learned brother that justice has been done in accordance
with the rules to the officers concerned and therefore concur with him in the
order as proposed.
SINGH, J: These three Civil Appeals are
directed against the judgment of Division Bench of Punjab & Haryana High
Court dismissing the writ petitions filed by R.S. Das, Mrs.
K. Goyal challenging the validity of the
Select List prepared for the year 1978, 1979 for promotion of members of Punjab
State Civil Service (Executive) to the Indian Administrative Service, During
the pendency of these appeals 17 writ petitions were filed before this Court
under Article 32 of the Constitution by Pritam Singh, Ajit Singh Nagpal and
other members of the Punjab State Civil Service (Executive) challenging the
validity of Select List prepared ,for the year 1979, 1980 and 1983. As all the
cases rest upon similar facts and involve common questions of law, 540 these
were heard together and we consider it necessary to dispose them of by common
judgment.
R.S. Das, Mrs. K. Goyal and Baldev Kapoor
members of the Punjab State Civil Service (Executive) had completed more than
eight years of service and they were eligible for promotion to the Indian
Administrative Service but their names were not included in the Select List for
the year 1978, while the names of officers junior to them were included in the
Select List. R.S. Das, Mrs. K. Goyal and Baldev Kapoor filed three separate
petitions before Punjab and Haryana High Court under Article 226 of the
Constitution challenging the validity of Select List of 1978. Their grievance
was that though they were senior, having good service record yet they were
superseded by officers junior to them in an arbitrary manner without recording
any reasons for the same. A Division Bench of the High Court dismissed all the
three petitions by a common order dated November 20, 1979 rendered in Baldev
Kapoor's [1980] 2 SLR 309 case holding that the Select List prepared for the year
1978 did not suffer from any legal infirmity. During the pendency of the
aforesaid petitions, another Select List was prepared for the year 1979 and in
that List also the name of R.S. Das was not included. He filed another writ
petition challenging the validity of that Select List also almost, on the same
grounds, that writ petition was also dismissed by the Division Bench on
November 26, 1979. R.S. Das and Mrs. K. Goyal have preferred appeal before this
Court by special leave.
During the pendency of these Appeals Pritam
Singh and 15 other officers of the State Civil Service challenged the validity
of Select List prepared for the year 1979 and 1980 before this Court by means
of petitions under Article 32 of the Constitution. Ajit Singh Nagpal and other
officers filed a similar petitions challenging the validity of Select List
prepared for the year 1983. The challenge to the validity of the Select List
for the year 1978, 1979, 1980 and 1983 are almost on similar grounds.
Before the High Court S/Shri R.S. Das, Baldev
Kapoor and Smt. K. Goel challenged the validity of the Select List of 1978 on
the ground that mandatory provisions of Regulation 6 of the Indian
Administrative Service (Appointment by Promotion) Regulations, 1955
(hereinafter referred to as the Regulations) were violated in making the
selection as the service records of eligible 'state officers including that of
the petitioners had not been forwarded to the Union Public Service Commission
and its approval was given without considering the recommendations made by the
Selection Committee. Amendment made in Regulation 5 deleting the provisions
which required reasons to be 541 recorded for the supersession of a state
officer, was arbitrary and violative of Article 14 of the Constitution. The petitioners
further challenged the vires of the Regulations on the ground of their being
inconsistent with the Indian Administrative Service (Recruitment) Rules 1954
(hereinafter referred to as the Rules) and inclusion of name of K.S. Raju was
assailed on the ground that he had earned adverse remarks and yet he was
selected. The petitioners further raised grievance that important material
relating to the petitioners' service including certificate and letters of
recommendations as contained in their service records were not considered by
the selection committee. The High Court by a well considered judgment rendered
in Beldev Singh's case (supra) dismissed all the three writ petitions on the
findings that the select list prepared for the year 1978 was in accordance with
the regulations and it did not suffer from any legal infirmity. It appears that
validity of the Select List of 1978 was challenged by J.S. Chopra and other
officers of the state civil service before the High Court under Article 226 of
the Constitution on the same ground which had already been rejected by the
Division Bench in Baldev Kapoor's case (supra). However having regard to the
decision of this Court in Union of India v. Chothia (H.P) & Ors., etc.
etc., [1978] 3 SCR 652. Division Bench referred the matter for consideration to
a larger bench on the question as to whether the Select List was vitiated for
the noncompliance of Regulation 6(iii) inasmuch as reasons for the supersession
of senior officers were not forwarded to the Commission. The Full Bench of the
High Court held that the decision of this Court in Chothia's case did not
affect the position and the Division Bench decision in Baldev Singh's case
correctly laid down the law.
In the present appeals and petitions learned
counsel for the appellants and the petitioners as well as Shri R.S.
Dass, appellant who appeared in person argued
the case and have made the following submissions:
(1) The select list of 1978-79, 1980 and 1983
are vitiated on the ground that select committee did not record any reasons in
superseding the appellants/petitioners in excluding their names and including
the names of junior officers in the select list.
(2) Amendment of the Regulation 5(7) is violative
of Articles 14 and 16 as it confers unguided power on the Selection Committee
to supersede senior officers.
542 (3) The select list prepared for the year
1978 was vitiated for the non-compliance of Regulation 6(iii) as no reasons
were forwarded by the State Committee to the Commission along with record of
officers proposed to be superseded.
(4) Even if under the Regulations no reasons
were necessary to be recorded, principles of Natural Justice and fair play
required that reason should have been recorded.
(5) The select list prepared for the year
1978, 1979 was vitiated on account of the unauthorised participation of Shri
I.C. Puri as a member of the Selection Committee.
(6) Regulations 3 and 5 of the Promotion
Regulation are violative of rule 8(1) of the recruitment rules inasmuch as the
Promotion Regulations impinge upon the State Government's power to make
recommendations for appointment to the service.
(7) The State Government deliberately delayed
its comments on the select list prepared for 1980 to the Public Service
Commission with a view to give undue advantage to the officers included in the
1979 list for promotion to the Indian Administrative Service.
Before we consider the submissions made on
behalf of the appellants/petitioners we think it necessary to refer to the
relevant statutory provisions regulating promotion of members of the State
Civil Service to the Indian Administrative Service. The Central Government in
exercise of its powers under section 3 of the All India Services Act, 1951
flamed Indian Administrative Service (Recruitment) Rules, 1954 (hereinafter
referred to as the Rules). Rule 4 provides for recruitment to the service,
according to this rule recruitment to the Indian Administrative Service is made
by: (i) direct recruitment through competitive examination; (ii) promotion of
substantive members of the State Civil Service (Executive) and (iii) Selection
from amongst persons holding posts in substantial capacity in connection with
the affairs of the State, who may not be members of the State Civil Service.
Rule 6 provides that no appointment shall be made to the Indian Administrative
Service (hereinafter referred to as the Service) except in accordance with the
recruitment by one of the methods specified in rule 4. Rule 7 provides for
direct recruitment through competitive examination. Rule 8(1) confers power on
the Central 543 Government to appoint members of the State Civil Service by
promotion to the Service on the recommendation of the State Government and in
consultation with the Union Public Service Commission in accordance with
Regulations which may be flamed by the Central Government.-In exercise of its
powers under Rule 8(1) the Central Government has flamed the Indian
Administrative Service (Appointment by Promotion) Regulations, 1955
(hereinafter referred to as the Regulations) laying down procedure of selection
for appointment to the service by promotion. Regulation 3 provides for
constitution of a Committee consisting of the Chairman of the Union Public
Service Commission or a member of the Commission and other members as specified
in column 2 to the schedule to the Regulations. Regulation 5 provides that the
Committee shall ordinarily meet at intervals not exceeding one year to prepare
the list of such members of the State Civil Service found suitable for
promotion to the service on an overall relative assessment of the service. This
list prepared by the Committee is forwarded to the Commission by the State
Government along with the records of members of those selected as well as of
those proposed be superseded together with the observation of the State
Government on the recommendation'of the Committee. Regulation 7 provides that
the Union Public Service Commission shall consider the list along with the
documents received from the State Government and on its approval the list so
approved shall form the Select List of the. members of the State Civil Service.
The Select List shall ordinarily be in force until a fresh list is prepared and
approved for the subsequent year. Regulation 8 lays down that appointment of
members of the State Civil Service shall be made by the Central Government on
the recommendations of the State Government in the order, in which the names of
members of the State Civil Service appear in the Select List. These Regulations
clearly provide for the selection of officers of the State Civil Service on
merit on the overall relative assessment of their service record. In the
process of preparing the select list if the seniors are not found suitable for
promotion and their names in the select list is not included and, if junior
officers are found suitable for the inclusion of their names in the Select
List, the seniors stand superseded, as the selection is made on merit and not
on the overall relative assessment of their service record. In the process of
preparing the select list if the seniors are not found suitable for promotion
and their names in the select list is not included and, if junior officers are
found suitable for the inclusion of their names in the Select List, the seniors
stand superseded, as the selection is made on merit and not on the basis of
seniority 544 Learned counsel for the appellants/petitioners assailed the
validity of the Select List of 1978, 1979, 1980 and 1983 on the ground that the
Committee did not record any reasons in superseding the appellants and
petitioners. Support was drawn from the decision of this Court in Union of
India v. Mohan Lal Capoor & Ors., [1974] 1 SCR 797 where Select List was
quashed on the ground that the Committee had failed to record reasons in
superseding senior officers. The Court held that it was incumbent on the
Selection Committee to have stated reasons in a manner which would disclose as
to how the record of superseded officers stood in relation to the record of
those officers who were preferred for selection. The Court further held that
the Selection Committee was under a mandatory obligation to record reasons in
superseding senior officers, in the absence of any such reasons the Select List
was vitiated. Regulation 5(1) to 5(5) which came up for interpretation before
this Court in Capoor's case were as under:
5(1) The Committee shall prepare a list of
such members of the State Civil/Police Service as satisfy the condition
specified in regulation 4 and as are held by the Committee to be suitable for
promotion to the service. The number of members of the State Civil/Police
Service included in the list shall not be more than twice the number of
substantive vacancies anticipated in the course of the period twelve' months commencing
from the date of the preparation of the list.
(2) The Selection for inclusion in such list
shall be based on merit and suitability in all respects with due regard to
seniority.
(3) The names of the officers included in the
list shall be arranged in order of seniority in the State Civil/Police Service.
Provided that any junior officer who in the
opinion of the Committee is of exceptional merit and suitability may be
assigned, a place in the list higher than that of officers Senior to him.
(4) The list so prepared shall be reviewed
and revised every year.
545 (5) If in the process of selection,
review or revision it is proposed to supersede any member of the State Civil/
Police Service the Committee shall record its reasons for the proposed supersession.
On construction of the aforesaid Regulation
5(5) this court held that it was a mandatory obligation on the Committee to
record reasons if it proposed supersession of a senior member of the State
Civil Service. The court further held that since no reasons were recorded the
Committee had failed to discharge a mandatory obligation, as a result of which
the list prepared by it was rendered illegal. Regulation 5 was. however,
amended by notification dated 3.6.1977, and after the amendment Regulation 5(4)
and (5) read as under:
5(4) "The Selection Committee shall
classify eligible officers as "Outstanding", "Very Good"
"Good" or "Unfit" as the case may be on an overall relative
assessment of their service record.
5(5) The list shall be prepared by including
the required number of names, first from amongst officers finally. classified
as "Outstanding", then from amongst those similarly classified as
"Very Good" thereafter from amongst those similarly classified as
"Good" and the order of the names inter se within each category shall
be, in the order of their seniority in the State Civil Service." Under the
amended Regulations the Committee is required to categorise officers in four
categories on the basis of overall assessment of service record of officers.
After categorisation the committee is required to place the name of those
officers first on the list who may be categorised as "Outstanding"
and thereafter names of those officers shall be included who are found to be
"Very Good". And only thereafter the names of those officers shall be
included who may be categorised "Good". If in this process any senior
officer is superseded the amended Regulation 5(5) does not require the
Committee to record reasons for the supersession. The amended Regulations have
brought in significant change and now the process of Selection as contemplated
by Amended Regulations do not require the Selection Committee to record reasons
for the supersession of officers of the State Civil Service.
In Capoor's case the Regulation 5(2) as it
then existed laid 546 down that selection for inclusion in the list shall be
based "on merit and suitability with due regard to seniority" which
meant that merit and suitability in all respects was the governing
consideration and seniority was to play a secondary role, but if merit and
suitability were roughly equal, seniority was the determining factor or if it
was not reasonably possible to assess inter-se merit and suitability of two
eligible officers and come to a firm conclusion, seniority tilted the scale.
Regulation 5(5) as it then existed laid emphasis on the role of seniority as it
laid down that in the process of selection, review or revision of the select
list if it was proposed to supersede any member of State Civil Service, the Committee
shall record its reasons for the proposed supersession. The necessity to record
reasons clearly implied that seniority of an officer in the State Service could
not be ignored altogether. This Court in Capoor's case held that if senior
officer was superseded by including the name of a Junior Officer in the select
list in preference to a senior officer, the Committee was under a mandatory
legal obligation to record reasons in a manner which would disclose how the
record of each officer superseded, stood in relation to record of others who
were to be preferred. The court further emphasised that recording of reasons
was necessary as it provided a visible safeguard against possible injustice and
arbitrariness in making the selection. It appears that the Committee making
selection constituted for the purpose of preparing the select list felt
difficulty in recording reasons, in the precise manner as laid down by this
Court. The question was considered by a conference of Chief Secretaries held in
May, 1976 and it appointed a Committee to consider the question. The Committee
noted that consequent to the judgment of this Court in Capoor's case, there was
tendency for the Selection Committee to go by seniority subject to the
rejection of the unfit, even though Regulations prescribed merit as the
criteria for selection. The Committee reported that the system of
categorisation of officers for promotion to the Higher Post should be followed
in case of All India Services also. After considering the report of the Committee,
the Conference of Chief Secretaries made recommendations to the Union
Government that necessary amendment should be made in the Regulations providing
for grading of eligible officers as "Outstanding", "Very
Good", "Good" for the purpose of being placed in the select list
to ensure that select list is drawn upon the basis of merit and suitability and
to obviate the necessity of giving reasons for the supersession of any officer.
In pursuance to the recommendations of the
Chief Secretaries Conference the Central Government in consultation with the
State Governments and the Union Public Service Commission, amended 547
Regulation 5 by its notification No. 11089/6/76-AIS(1)-A dated 3.6.1977.
The amended provisions of Regulation 5 have
curtailed and restricted the role of seniority in the process of selection as
it has given primacy to merit. Now the Committee is required tO categorise the
eligible officers in four different categories, namely "Outstanding"
"Very Good", "Good" and "Unfit" on overall
relative assessment of their service records. After categorisation is made the
Committee has to arrange the names of officers in the select list in accordance
with the procedure laid down in regulation 5(5).
In arranging the names in the select list the
Committee has to follow the inter-se seniority of officers within each
category. If there are five officers fail within the "Outstanding"
category their names shall be arranged in the order having regard to their
inter-se seniority in the State Civil Service. The same principle is followed
in arranging the list from amongst the officers falling in the category of
"Very Good" and "Good". Similarly if a junior officer's
name finds place in the category of "Outstanding", he would be placed
higher in the list in preference to a senior officer included in the "Very
Good" or "Good" category. In this process a junior officer if
categorised "Outstanding" or "Very Good" would supersede
his seniors. This cannot be helped. Where selection made on merit alone for
promotion to a higher service, selection of an officer though junior in service
in preference' to his senior does not strictly amount to supersession. Where
promotion is made on the basis of seniority, the senior has preferential fight
to promotion against his juniors but where promotion is made on merit alone,
senior officer has no legal right to promotion and if juniors to him are
selected for promotion on merit the senior officer is not legally superseded.
When merit is the criteria for the selection amongst the members of the service,
no officer has legal fight to be selected for promotion, except that he has
only right to be considered along with others. In Gurdayal Singh Fiji v. State
of Punjab & 0rs.,,[1982] 1 SCR 904. This court held that a member of State
Civil Service has no legal right to promotion, instead he has only right to be
considered along, with others. But assuming that appellants/petitioners stood
superseded by the reason that junior officers to them were included in the
select list, no reasons were necessary to be recorded in view of the amended
statutory provisions.
Learned counsel. urged that reasons if
recorded ensure objectivity and impartiality. In :he absence of reasons the
Committee may act in arbitrary manner to supersede senior officers which would
be 548 violative of Article 14 and 16 of the Constitution. We find no merit in
the submission. Article 16 ensures equality in matters relating to appointment
and promotion to an officer or post under the State. It enjoins State not to practice
discrimination in matters relating to appointment and promotion. A member of
the State Civil Service eligible for selection for promotion to the I.A.S. has
right to be considered along with others for selection for promotion. If
eligible officers are considered on merit, in an objective manner no Govt.
servant has any legal right to insist for promotion nor any such right is
protected by the Article 14 or 16 of the Constitution. Article 16 does not
insist that reasons should be recorded for the non-selection of a member of a
State Service.
Learned counsel urged that in the absence of
statutory provision, principles of natural justice require the selection
committee to record reasons for the supersession of officers to enable them to
make representation against their supersession.
We find no merit in the submission.
Principles of natural justice do not require an administrative authority or a
selection committee or an examiner to record reasons for the selection or
non-selection of a person. In the absence of a statutory provision an
administrative authority is under no legal obligation to record reasons in
support of its decision. There is no scope for applying principles' of natural
justice in matters relating to selection of suitable members of State Service
for promotion to a higher service. In Mohanlal Capoor's case similar submission
was made that principles of natural justice require communication of reasons to
the officer proposed to be superseded to enable him to make representation.
Both the learned Judges who constituted the Bench repelled the contention.
Mathew, J.
held that no notice was required to be given
to a senior officer if he was proposed to be superseded in favour of a junior
on the ground of his greater merit and suitability, 'the learned judge further
observed that it was not expedient to extend the horizon of natural justice.
Beg, J. also rejected the submission that minimal requirement of just and fair
treatment in such a situation would be to inform the officer to be superseded,
the reasons recorded for his proposed supersession to enable him to make
representation.
On such a ground expansion of scope of
natural justice was not justified.
The principle of audi alteram partem is a
basic concept of principles of natural justice. No one should be condemned
without hearing is he essence of justice. Courts of law apply this principle to
ensure fair 549 play and justice in judicial and quasi-judicial matters. Of
late these principles have been extended even to administrative actions also.
However, the application of the audi alteram partem rule is not applicable to
all eventualities or to cure all ills. Its application is excluded in the
interest of administrative efficiency and expedition. Sometimes legislation
itself excludes the application of the rule. It is difficult to conceive
exhaustively all eventualities and circumstances for application or exclusion
of the rule. In A.K. Kraipak & Ors., etc. etc., v. Union of India &
Ors., [1970] 1 SCR 457 a Constitution Bench of this Court held these rules
operate only in areas not covered by any law validly made. In other words they
do not supplant the law of the land but supplement it. They are not embodied
rules and their aim is to secure justice or to prevent miscarriage of justice.
If that is their purpose, there is no reason why they should not be made
applicable to administrative proceedings also, especially when it is not easy
to draw the line that demarcates, administrative enquiries from quasi-judicial
ones, and an unjust decision in an administrative enquiry may have a more far
reaching effect than a decision in a quasi-judicial enquiry. The Bench,
however, further observed that the concept of natural justice have under gone a
great deal of change in recent years. What particular rule of natural justice
should apply to a given case must depend to a great extent on the facts and
circumstances of that case, the flame-work of the law under which the enquiry
is held and the Constitution of the Tribunal or the body of persons appointed
for that purpose.
In Union of India v. Col, J.N. Sinha &
Anr., [1971] 1 SCR 791 this Court held that if a statutory provision either
specifically or by necessary implication excludes the application of any or all
the principles of natural justice then the court cannot ignore the mandate of
the legislature or the statutory authority and read into the concerned provisions
the principles of natural justice. Whether the exercise of a power conferred
should be made in accordance with any of the principles of natural justice or
not depends upon the express words of the provision conferring power, the
nature of the power conferred, the purpose for which it is conferred and the
effect of the exercise of that power.
In Chairman, Board of Mining Examination
& Anr., v. Ramjee, [1977] 2 SCR 904 Krishna Iyer, J. speaking for the Court
observed:
"Natural Justice is no unruly horse, no
lurking land mine, nor a judicial cure-all. If fairness is shown by the
decision 550 maker to the man proceeded against, the form, features and the
fundamentals of such essential processual propriety being conditioned by the
facts and circumstances of such situation, no breach of natural justice can be
complained of. Unnatural expansion of natural justice, without reference to the
administrative realities and other factors of a given case, can be
exasperating. We can neither be finical nor fanatical but should be flexible
yet firm in this jurisdiction." It is well established that rules of
natural justice are not rigid rules, they are flexible and their application
depends upon the setting and the back-ground of statutory provision, nature of
the right which may be effected and the consequences which may entail, its
application depends upon the facts and circumstances of each case. These
principles do not apply to all cases and situations. Applications of these
uncodified rules are often excluded by express provision or by implication. In
Union of India & Anr., v. Tulsiram Patel etc., [1985] 3 SCC 398 a Constitution
Bench of this Court considered the scope and extent of applicability of
principles of natural justice to administrative actions.
Madon, J summarised the position of law on
this point and observed as follows:
"So far as the audi alteram partern rule
is concerned, both in England and in India, it is well established that where a
right to a prior notice and an opportunity to be heard before an order is
passed would obstruct the taking of prompt action such a right can be excluded.
This right can also be excluded where the
nature of the action to be taken, its object and purpose and the scheme of the
relevant statutory provisions warrant its exclusion;
nor can the audi alteram partem rule be invoked
if importing it would have the effect of paralysing the administrative process
or where the need for promptitude or the urgency of taking action so demands,
as pointed out in Meneka Gandhi's [1978] 2 SCR 621 cases." In the instant
cases statutory Regulations do not expressly or by implication apply the rule
of audi alteram partem in making the selection. On the other hand the scheme
contained under the regulations exclude the applicability of the aforesaid rule
by implication. Select list is prepared each year which ordinarily continues to
be effective for a year or till the fresh select list is prepared. If during
the process of 551 selection a senior officer is proposed to be superseded by
virtue of not being included in the select list, and if opportunity is afforded
to him to make representation and only thereafter the list is finalised, the
process would be cumbersome and time consuming. In this process it will be
difficult for the committee to prepare and finalise the select list within a
reasonable period of time and the very purpose of preparing the select list
would be defeated.
Scheme of the Regulations therefore clearly
warrants exclusion of principle of audi alteram partem. No vested legal right
of a member of the State Civil Service who after being considered, is not
included in the select list, is adversely affected, Non-inclusion in the select
list does not take away any right of a member of the State Civil Service that
may have accrued to him as a Govt. servant, therefore no opportunity is
necessary to be afforded to him for making representation against the proposed
supersession.
The next submission was that the select list
prepared for 1978 was vitiated for the non-compliance of Regulation 6(iii)
inasmuch as the State Govt. failed to forward to the Commission reasons
recorded by the Committee for supersession of seniors as required by that
Regulation. It was urged that even after deletion of Regulation 5(5) which
required Committee to record reasons for supersession of an officer by the
Notification dated June 3, 1977, Regulation 6(iii) remained unamended,
therefore, the Committee was under a mandatory duty to record reasons, and the
State Govt. was required to forward the same to the Commission. Since the
Committee failed to comply with the mandatory obligation, the select list prepared
for the year 1978 stood vitiated.
To support this submission reliance was
placed on the decision of this Court in Chothia's case. In that case interpretation
of Regulation 5 of the Indian Forests Service (Initial Recruitment) Regulation
of 1966 came up for consideration. Regulation 5 laid down method for
preparation of list of suitable officers of State Forest Service adjudged by
the Selection Board for appointment to posts in the senior and junior scales of
Indian Forest Service. Regulation 5(2) was as under:
"5(2): The list prepared in accordance
with sub-regulation (1) shall then be referred to the Commission for advice, by
the Central Govt. along with-(a) the records of all officers of State Forest
Service included in the list;
(b) the records of all other eligible
officers of the State 552 Forest Service who are not adjudged suitable for
inclusion in the list, together with the reasons as recorded by the Board for
their non-inclusion in the list." Construing the aforesaid regulation this
Court held that both the clauses (a) and (b) of Regulation 5 must be complied
with before the recommendations are sent tO the Commission. Clause (b) of the
Regulation 5 laid down that where eligible officers of the State Forest Service
were not found suitable, reasons must be given by the Board for their non inclusion
in the select list. The Court held that Regulation 5(b) which provided for
recording reasons was mandatory and it must be complied with. But in view of
the amendments made in Regulations under consideration providing for selection
on the basis of categorisation of members of the State Civil Service into
different categories on the assessment of their service records, principles
laid down in Chothia's case are not applicable. After the amendment of
Regulation 5 the Committee was under no legal obligation to record reasons for
supersession of a senior officer and for that reason it did not record any
reasons, therefore, the question of forwarding any reasons by the State
Government to the Commission did not arise. Regulation 6(iii) which required
the State Government to forward to the Commission along with reasons as
recorded by the Committee for the proposed supersession of any member of the
State Civil Service was consistent with the unamended Regulation 5(5) which
required the Committee to record reasons for supersession of a member of the
State Civil Service. By Notification No. 11039/3/78AIS(1) dated June 2, 1979
Clause (iii) of Regulation 6 was deleted as a result of which the State Govt.
ceased to the under any obligation to forward to the Commission reasons
recorded by the Committee for supersession of officers.
Having regard to the legislative history and
the purpose and the object which was sought to be achieved by the amendments
there could be no mandatory legal obligation on the Committee to record
reasons. Regulation 6(iii) merely required the State Govt. to forward reasons
if recorded for supersession of the officers to the Commission, but if no
reasons were recorded the State Govt. was under no legal obligation to forward
the same to the Commission and its non-compliance did not vitiate the select
list. Since the entire system of selection has been changed on account of
amendment in the regulations, the principles laid down in Chothia's case do not
apply to the instant cases. The Madhya Pradesh High Court in P.C. Pradhan v.
Union of India & Ors., [1981] 1 SLR 1 and the Punjab and Haryana High Court
in J.S. Chopra's [1980] 2 ILR Punj. 477 case have taken similar views.
553 The Appellants/Petitioners entertain an
apprehension that in the absence of reasons the selection would be made in an
arbitrary manner over-looking the claim of a senior officer eligible for
promotion to the Indian Administrative Service. In this regard it was urged
that selection on merit confers wide discretion on the authority making
selection and in the absence of reasons there would be no objectivity and the
members of the State Civil Service would receive discriminatory treatment by
the committee. The scheme contained in promotion regulations and the criteria
prescribed therein for preparing the select list do not justify any such
apprehension. The principal object of the promotion system as contained in the
regulations is to secure the best possible incumbents for promotion to the
Indian Administrative Service which is the back-bone of the administrative
machinery of the country. The efficiency of the administration in the Union as
well as in the State largely depends upon the efficiency of the members of the
Indian Administrative Service. Efficient public service is in public interest
and the public interest is best secured if reasonable opportunity for promotion
exist for all qualified members of the State Civil Service and only those who are
found efficient and suitable in all respects are promoted. This object is
sought to be achieved by the Regulations in prescribing merit as the sole test
for promotion. In order to judge the merit the regulations provide for
categorisation of eligible members of the State Civil Service on the basis of
their service records which are scrutinised by the Committee consisting of high
ranking officers of the State Govt. and the Central Govt. The service records
of all eligible officers whose names are included in the proposed select list
and the records of even those who are not selected is again scrutinised by the
State Govt. and the Union Public Service Commission and only thereafter final
shape is given to the selection list. There are, therefore, adequate checks and
safeguards at different stages by different authorities. But if any dispute
arise with regard to the arbitrary exclusion of a senior member of the State
Service the matter can always be investigated by perusing his service records
and comparing the same with the service record of officers who may have been
preferred and that would certainly disclose the reasons for the supersession of
the senior officer. It is true that where merit is the sole basis for
promotion, the power of selection becomes wide and liable to be abused with
less difficulty, But that does not justify presumption regarding arbitrary
exercise of power. The machinery designed for preparation of select list under
the regulations for promotion to All India Service, ensures objective and
impartial selection. The Selection Commitee is constituted by high ranking
responsible officers presided over by Chairman or a Member of the Union Public
Service Commission.
554 There is no reason to hold that they
would not act in fair and impartial manner in making selection. The recommendations
of the selection committee are scrutinised by the State Govt. and if it finds
any discrimination in the selection it has power to refer the matter to the
Commission with its recommendations. The Commission is under a legal obligation
to consider the views expressed by the State Govt.
along with the records of officers, before
approving the select list. The selection committee and the Commission both
include persons having requisite knowledge, experience and expertise to assess
the service records and ability to adjudge the suitability of officers. In this
view we find no good reasons to hold that in the absence of reasons the
selection would be made arbitrarily. Where power is vested in high authority
there is a presumption that the same would be exercised in a reasonable manner
and if the selection is made on extraneous considerations, in arbitrary manner
the courts have ample power to strike down the same and that is an adequate
safeguard against the arbitrary exercise of power.
It was urged that the selection merely based
on the appraisal of service record is arbitrary and it is bound to cause
injustice as entries in the character roll of members of the State Service
depend upon the whims of the recording officer. It is true that the service
records contain remarks which sometimes may not be fully justified, but for
that reason the scheme contained in the rules and regulations for promotion
cannot be characterised unreasonable. There are various methods of selection
viz. by competitive examination written test-cum-vivavoice, or by assessment of
service records. For the purpose of recruitment to the Indian Administrative
Service from amongst the officers of the State Civil Service, latter method namely,
selection on the basis of scrutiny of service records has been accepted. This
is a well recognised system for making selection. In Parvez Qadir v. Union of
India & Ors., [1975] 2 SCR 432 while considering similar submission the
Court observed:
"The past performance of an officer
being one of the criteria for making selection, the only way to adjudge their
suitability is by perusal of confidential records. It is true that confidential
records do not sometimes give a true picture due to the vagaries of the recording
officer. The human fallibility and want of objectivity in the superior officer
are factors which cannot be eliminated altogether. For that matter one can ask
what method is perfect. For this reason, certain safeguards have been provided
in order 555 to make them as objective as possible. If there is an adverse
entry against any officer that officer is given an opportunity to explain.
After the. explanation is given, the superior officer as well as the Govt. ultimately
decide whether that remarks by the recording officer was justified or not, and
if it is not justified the Govt. can always order its deletion. Sometimes
vagary may enter into the service confidentials, and if cannot be postulated
that all superior officers who have been empowered to finalise such entries
will suffer from any of those traits because the actions of the officer
concerned may not have any immediate impact upon him and consequently his sense
of objectivity will not be dimmed or strained. In our view, often enough, the
entries in confidential records are themselves an insignia of the capacity and
capability of the maker as a superior officer as well as a commentary on the
quality of the officer against whom that confidential remark is being noted.
But those who are charged with the duty to over see that these entries are
fair, just and objective quite often do intervene and rectify any entry on
representation being made against it. at the proper time. In these
circumstances, we do not think that the method of selection based on past
performance as disclosed by the confidential records is not the proper method
for adjudging suitability of the officer concerned." An ancillary argument
was raised to demonstrate discrimination. It was urged that the regulations do
not lay down any guidelines for categorisation of officers of the State Service
into various categories with the result the Committee even if acting bona fide
may apply different standards at different times. The argument was further
developed that the Committee members change and, therefore, the same Committee
or different Committee is likely to apply its own standard in judging the
suitability of officers in different manner in different years which would
result into discrimination. This submission is rounded on the assumption that
the Committee is free to categorise officers at its sweet will but that
assumption is misconceived. Under Regulation 5 the Committee has to categorise
officers on the basis of their service records into four categories as discussed
earlier. The categorisation is objectively made on the material available in
the service records of the officers.
There is hardly any scope for applying
different standards or criteria at different times as the service records
namely the character roll entries would indicate the category of the officers
as adjudged by the authority 'recording annual confidential remarks. There is
no dis556 pure that in Punjab, under the State Govt's instruction the authority
competent to record annual remarks in the character roll of members of the
State Civil Service, has been directed to indicate the category of the officer,
e.g.
whether the officer is
"outstanding". "very good" or "good".
The annual confidential remarks as available
in the character roll of officers of the State Civil Service therefore indicate
the category to which a particular officer may belong. We were informed by
Counsel for the Union Govt.
during the hearing of the cases that under
instructions issued by the Union Govt. all the State Govts. are following
similar pattern in categorising members of the State Civil Service in the
annual remarks made in their confidential records. This has brought uniformity
in the character roll entries. Since category of members of State Civil Service
is available in their service record, the Committee has no discretion to
disregard the same. The Committee has to categorise the members of the State
Service on the basis of entries available in their character roll and
thereafter to arrange their names in the proposed list in accordance with the
principles laid down in Regulation 5. There is no scope for applying different
standard or test in preparing the list, or to practice discrimination. We,
therefore, find no merit in the submission that Regulation 3 and 5 are discriminatory
and they violate Article 14 and 16 of the Constitution.
Learned counsel urged that recommendations of
the Selection Committee which prepared the select list for the year 1979 was
illegal on account of the participation of Shri I.C. Puff, as he was not
entitled to be a member of the Selection Committee, his participation in the
deliberation of the committee was unauthorised. Regulation 3(1) provides that a
committee shall be constituted, consisting of the Chairman of the Commission or
any other member of the Commission representing it and other members as
specified in corresponding column 3 of the schedule. The proviso to the
Regulation lays down that except the Chairman or the member of the Commission,
no other person who is not a member of the service shall be member of the
Committee. It further provides that the Central Govt. may after consultation
with the State Government amend the schedule. Other members of the Committee as
specified in Column 3 of the schedule to the regulation as applicable to the
State of Punjab specified the (1) Chief Secretary to the Govt.; (2) Development
Commissioner (3) Senior most Financial Commissioner, (4) A nominee of the Govt.
of India, not below the rank of Joint Secretary as members of the Committee.
Senior posts in the Indian Administrative
Service not below the rank of Commissioner are determined in accordance with
the schedule 557 to the Indian Administrative Service. (Fixation of Cadres
Strength) Regulations 1954. The cadre regulation did not provide for any post
of Development Commissioner for the State of Punjab as a result of which there
was no separate post of Development Commissioner. Instead, the Financial
Commissioner was made In charge of the Development Department and he was designated
as Financial Commissioner (Development). Shri I.C. Puri who was posted as the
Financial Commissioner (Development) was the In charge of Development
Department at the relevant time and as such he was appointed a member of the
Selection Committee and admittedly he participated in the deliberations of the
Selection Committee which held its deliberation on November 30, 1979 for preparing
the select list of 1979. In the affidavit filed on behalf of the State of
Punjab it has been asserted that the Development Department was under the
charge of the Financial Commissioner who was designated as Financial
Commissioner (Development) and Shri Pun who was holding the rank of the
Commissioner was the Secretary In charge of the Development Department.
On behalf of the Appellants/Petitioners it
was strenuously urged that Shri Puri was not the Secretary Incharge of the
Development Department on 30.11.79. Instead Hardayal Singh was Incharge of the
Development Department as Special Secretary in the Department of Rural
Development, Panchayats, Agriculture and Forests. In the counter affidavit
filed on behalf of the State Govt. it is asserted that Hardayal Singh was
merely posted Special Secretary to the Govt. He was neither holding the rank of
Commissioner nor he was the Secretary Incharge of the Development Department.
However, Hardayal Singh was given the rank of Secretary simply to protect his
special pay in the time scale of selection grade in the Indian Administrative
Service. He was not Incharge of the Department as Secretary, instead he was
working under over all control of Financial Commissioner (Development) namely,
Shri I.C. Puff. This finds support from the note recorded by Hardayal Singh on
5.12.79 requesting the Chief Secretary for allocation of work between the
Financial Commissioner (Development) and Special Secretary. The relevant note
is available on record. It is thus evident that Hardayal Singh was working
under the over all control of Shri I.C. Puri who was the Financial Commissioner
(Development) and Secretary Incharge of Development Department. The material
placed on record leaves no room for any doubt that Shri I.C. Puri designated as
Financial Commissioner (Development) was also discharging the duties and
functions of the Development Commissioner. He was, therefore, holding the dual
558 charge as no separate post of Development Commissioner had been sanctioned
by the Govt. These facts clearly show that for all purposes Shri Pun was
working as Development Commissioner. As Financial Commissioner (Development) he
was exercising same powers and discharging same functions which could be
performed by a Development Commissioner, therefore he was competent to
participate in the deliberations of the selection committee. While considering this
question we cannot be oblivious of the fact that at no stage any objection was
raised against functioning of Shri Puri as a member of the Selection Committee
or his participation in the deliberations. There is further no allegations of
mala fide or bias against Shri Puff. There is evidence on record to show that
recommendations of the Selection Committee constituted under Regulation 3 were
unanimous, which were scrutinised by the State Govt. and the Union Public
Service Commissions before the same were approved.
Learned Counsel placed strong reliance on the
decision of this Court in A.K. Kraipak's case. In that case initial recruitment
to the Indian Forest Service was challenged. In pursuance of the Indian Forest
Service (Initial Recruitment) Regulations, 1966 a special Selection Board was
constituted for Selecting officers for appointment to the Indian Forest
Service, from officers of the forest department of the State of Jammu and
Kashmir. The Acting Chief Conservator of Forests of the State was a member of
the Selection Committee which made recommendations for the recruitment, he
participated in the selection board's deliberations in preparing the list of
selected candidates in order of preference, although he himself was a candidate
for selection." The Court held that the participation of the Acting Chief
Conservator vitiated the recommendations made by the Selection Board as there
was conflict between the, Acting Chief Conservator's personal interest and his
duty and further he was a Judge in his own cause. The Court further held that
taking into consideration probability and ordinary course of human conduct,
there was reasonable ground for believing that the Acting Chief Conservator was
likely to have been biased. In these circumstances the Court held that the
selection made by the Board could 'not be considered to have been made fairly
and justly as it was influenced by a member who was biased. Principles laid
down in Kraipak's case do not effect the validity of the recommendations made
for the preparation of select list of 1979 as Shri I.C. Puff was neither biased
against any of the appellants/petitioners, nor there was conflict between his
personal interest and duty. Shri Puri had no interest in the inclusion or
exclusion of a member of the State Civil Service nor he had any personal
interest in preparing the 559 list. There is no allegation of bias or malice
against Shri Puff, his participation in the meeting of the Selection Committee
did not render the select list of 1979 illegal.
Shri B.S. Khoji, learned counsel for Pritam
Singh and other petitioners in the writ petitions urged that Promotion
Regulations 3, 5 and 7 are ultra vires rule 8 and the entire selection made in
pursuance of the impugned Regulations are illegal. Rule 8(1) provides that the
Central Govt. may on the recommendations of the State Government and in
consultation with the Commission and in accordance with such Regulations as the
Central Govt. may frame after consultation with the State Governments and the
Commission, recruit to the Indian Administrative Service persons by promotion
from amongst the substantive members of State Civil Service.
According to the learned counsel, Rule 8(1)
confers power on the Central Govt. to make recruitment to the Indian Administrative
Service by promotion from amongst the members of the State Civil Service on the
recommendations of the State Govt., in consultation with the Commission.
However, Regulations 3, 5 and 7 rob the State Govt. of its power of making
recommendation for recruitment to the service. The plea of ultra vires can be
sustained if Regulations 3, 5 and 7 are inconsistent with Rule 8(1). In our
opinion Rule 8(1) confers power on the Central Govt. to make recruitment to the
Indian Administrative Service by promotion from amongst the members of the
State Civil Service on the recommendations of the State Govt. in consultation
with the Commission. It further contemplates that the recommendations of the
State Govt. and consultation with the Commission which is constitutional
obligation as envisaged by Art. 320 of the Constitution, would be in accordance
with regulations which the Central Govt. may frame after consultation with the
State Govt. and Commission. Rule 8(1), therefore, contemplates the State
Govt's. recommendation and the consultation of the Commission in accordance
with the regulations framed by the Central Govt. The Central Govt. has framed
promotion regulations which provide method and manner of selection. Regulation
3 provides for constitution of selection committee to prepare list of suitable
officers in accordance with Regulation 5. The list so prepared is forwarded by
the State Govt.
to the Union Public Service Commission along
with records and the observations of the State Govt. in accordance with
Regulation 6. Thereafter the Commission considers the list under Regulation 7.
The Commission may make any change in the list received from the State Govt.
and thereafter it may approve finally with such modification as in its opinion
it may be just and proper. The list as finally approved by the Commission forms
the select list of 560 members of State Civil Service which ordinarily remains
in force until its review and revision. Regulation 9 lays down that the
appointment of members of State Civil Service shall be made by the Central
Govt. on the recommendations of the State Govt. in the order in which their
names appear in the select list. In our opinion these regulations do not in any
manner impinge upon the powers of the State Govt. to make recommendations to
the Central Govt. as contemplated by Rule
8. There is, therefore, no merit in the
petitioners' submission.
On behalf of Pritam Singh, Petitioner, it was
urged that the State Government acted mala fide in deliberately delaying its
comments to the Commission on the list of 1980 and thereby it manipulated
appointment of Tejinder Singh, M.P. Mitra and Gurdev Singh. In' order to
appreciate this submission it is necessary to refer to the facts which are not
disputed. The names of Tejinder Singh, M.P. Mitra and Gurudev Singh were
included in the select list approved for the year 1979, and as such they were
entitled to promotion during the period of currency of that list. On December
31, 1980 Selection Committee constituted under Regulation 3 met to prepare
fresh select list for the year 1980. The list so prepared did not include the
names of aforesaid officers.
But before the 1980 list could be finally
approved by the Commission, the aforesaid officers were promoted and.appointed
to I.A.S. In the background of these facts it was urged that the State
Government deliberately did not forward its comments.to the Union Public
Service Commission on the proposed Select List of 1980 as a result of which,
delay was caused in the approval of the 1980 list. In the counter affidavit
filed on behalf of the State Government allegations regarding mala fide have
been denied. No material has been placed before us to substantiate the plea of
mala fide.
Merely, because the State Government
forwarded its recommendations with delay is not sufficient to justify inference
that the delay was purposive with a view to grant undue favour to the officers
named above. Regulations contemplate preparation of select list each year. The
process of Selection, preparation and its final approval involves participation
of three authorities namely the Selection Committee constituted under
Regulation 3, the State Government and the Union Public Service Commission. The
records of all the eligible officers are scrutinized by the Committee, State
Government and the Commission before the Select List is finally approved and if
there is any difference between the authorities, consultation between the State
Govt. and the Commission is bound to take place. These steps which are necessary
for the approval of select list are time consuming. In actual practice
sometimes delay may be inevitable.
As the select list is to be prepared each
year the State 561 Government should take action well in advance to avoid any
delay. If undue delay is caused in preparation of select list, it provides
occasion for suspicion against the authorities and it is likely to generate
frustration and heart burning among the members of the State Civil Service
which would obviously be detrimental to public administration. The select list
of 1979 which included the names of Tejinder Singh, M.P. Mitra and Gurdev Singh
continued to be effective under Regulation 7(4) till another select list for
the subsequent year was finally approved. There is no dispute that the
aforesaid officers were promoted and appointed to I.A.S. before the approval of
the select list for the year 1980. Therefore no exception can be taken to the
validity of their appointment. We are, further of the opinion that delay made
by the State Government in forwarding its comments to the Union Public Service
Commission with regard to the 1980 list did not cause any prejudice to Pritam
Singh and other petitioners as none of them was selected for inclusion in the
1980 list.
We, therefore, find no merit in the appeals
and the writ petitions. They are accordingly dismissed but there will be no
order as to costs.
A.P.J. Appeals and Petitions dismissed.
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