U.P.S.C.
Vs. K. Rajaiah & Ors [2005] Insc 308 (3 May 2005)
P. Venkatarama
Reddi & P.P. Naolekar
ORDER
ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 709 OF 2004 WITH
C. A. NO. .. OF 2005 @ S.L.P.(C) NO. 728 OF 2004 P. VENKATARAMA REDDI, J.
Leave
granted.
The
1st respondent herein belonging to A.P. Police Service of the rank of
Superintendent of Police, filed an application before the Central
Administrative Tribunal, Hyderabad Bench, in the year 2002 questioning the two
notifications dated 21.1.2002 & 15.2.2002 issued by the Central Government
selecting and appointing certain police officers of Andhra Pradesh State cadre
to the Indian Police Service against the vacancies of 1998 and 1999. It has
been the case of the 1st respondent that despite his outstanding service he has
not been selected whereas officers having inferior merit were selected. The
main contention before the Tribunal was that there was no proper assessment of
merit by the Selection Committee and the awards and commendations which he got
and the 'outstanding' grading given in the ACRs for as many as four years were
not duly taken into account by the selecting body. He claimed to possess
superior merit over the three respondents who were senior to him and who were
selected and appointed by the Government. The Tribunal did not accept the
contention of the respondent. It dismissed the application while observing
thus:
"On
careful scrutiny of the ACRs of the applicant and other eligible candidates in
the list, we are satisfied that the official respondents have considered the
merits and demerits of each and every candidate while notional benefits keeping
open the said two posts for consideration for Selection from others in the
eligibility list.
Though
it is pointed out by the learned counsel for the applicant that the applicant
has been recommended President's Police Medal for distinguished service
rendered by him and this fact has not been taken into consideration by the said
Committee, it is found that the said Police Medal has been awarded to the
applicant on the Republic Day of 2001 i.e, nearly after one year from the date
on which the Selection Committee met i.e, 22.12.1999 for preparation of the
select lists for the years 1996-1997, 1998 and 1999. As already pointed out by
us, whatever awards given to the applicant during various years prior to
22.12.1999 are noted in the ACRs of the respective years of the applicant and
they were taken into consideration by the Selection Committee in giving the
grading to the applicant.
Thus
it is found that the Selection Committee has taken into consideration all the
relevant facts in making in-depth assessment of the candidates of the
eligibility lists of the relevant years 1998 and 1999." Aggrieved by the
said order, the 1st respondent filed a writ petition under Article 226 of the
Constitution in the High Court of Andhra Pradesh. Apart from the prayer to
quash the order of the Tribunal and the two notifications issued by the Central
Government in 2002, the first respondent sought for the direction to set aside
the appointments of respondents 5 to 7 and to convene a fresh Selection
Committee for re-assessment of comparative merit on the basis of the service
records and not confining the consideration to ACRs only.
The
High Court proceeded on the premise that the 1st respondent had four
'outstanding' gradings from "1996 to 1999" (it must be 1994 to 1996)
in the ACRs, whereas the other officers did not have so many outstanding gradings.
The
High Court observed that no reasons were disclosed for revising the
classification to the detriment of the writ petitioner. The main reason however
which weighed with the High Court was that the Selection Committee omitted to
consider the relevant material which, according to the High Court, was not
merely the ACR, but also the entire service record / service register of the
officers. The High Court observed thus:
"Thus,
it is clear that what was considered by the Selection Committee was the ACRs
only and not the service records. On directions by this Court, the Government
produced the records. The crucial file in which the Committee categorized the
officers has not been made available. The said file only clears the mist as to
whether the Committee considered only ACRs or the S.Rs. also. We have to
necessarily draw adverse inference in this regard It is one thing to say that
the S.Rs. and ACRs of the officers have been placed before the Committee and on
the basis of these documents the categorization was made. But, it is another
thing to say that the Committee can categorise on the basis of ACRs. The latter
procedure conflicts with sub-regulation (4) of Regulation 5.
The
learned tribunal failed to analyse and examine this issue and thereby committed
an error apparent on the face of the record" The High Court accordingly
allowed the writ petition and directed the official respondents to constitute a
fresh Selection Committee and to prepare the panel of officers to be promoted
to IPS for the year 1999 by assessing "overall relative assessment by
considering the relevant ACRs and Service Records as directed supra".
Assailing this judgment of the High Court, the SLPs were preferred by the Union
Public Service Commission (UPSC) and the Union of India.
Before
proceeding further, we may note the relevant provisions contained in Regulation
5(4) & 5(5) of Indian Police Service (Appointment by Promotion)
Regulations, 1955 in regard to preparation of select list.
5(4)
The Selection Committee shall classify the eligible officers as 'outstanding',
'very good', 'good' or 'unfit' as the case may be, on an overall relative
assessment of their service records.
5(5)
The list shall be prepared by including the required number of names, first
from among the officers finally classified as 'outstanding' them from among
those similarly classified as 'very good' and thereafter from amongst those
similarly classified as 'good' and the order of names inter se within each
category shall be in the order of their seniority in the State Police Service.
After
hearing the arguments on 18.1.2005, the following order was passed by us:
"Having
considered the arguments, we are of the prima facie view that the reason which
weighed with the High Court in quashing the select list of IPS for the year
1999 relating to Andhra Pradesh State is not correct. It seems to us that
the Annual Confidential Reports Parts I & II placed before the Selection
Committee are comprehensive enough to furnish requisite material to judge the
comparative merit and that the non-perusal of service register/record by itself
has not vitiated the selection. Still the question that remains is whether the
consideration was based on the relevant criteria as laid down in the
Regulations, namely, Indian Police (Appointment by Promotion) Regulations, 1955
remains to be considered, especially in view of certain observations made by
the High Court in support of the respondent's plea on merits. Instead of
remitting the matter to the High Court for fresh consideration, we deem it just
and proper to settle the issue once and for all, especially, for the reason
that the respondent-writ petitioner has retired from the State Police service
at the age of 58 years and if his claim is accepted, he would perhaps serve as
an Officer of IPS for a short time.
Though
the broad stand taken by the UPSC in the counter-affidavit filed before the
Tribunal / High Court and also in the memorandum of SLP does not spell out the
precise reason as to why the respondent who was graded outstanding for three
years preceding the year under consideration was not selected, certain facts
including the actual procedure that is being followed by UPSC to evaluate the
candidates were projected in the course of arguments. Certain documents were
placed before us for our perusal though the copies were not served to the
respondent's counsel.
It is
only fair and proper that the UPSC files an additional affidavit clarifying the
relevant aspects bearing on the non-selection of the respondent as per the
extant procedure so that the respondent will be able to make out his case with
reference to those aspects." Pursuant to this Order, an additional
affidavit was filed on behalf of UPSC and reply thereto was filed by the 1st
respondent. Thereafter, the matter has been listed for further hearing.
In
regard to the service records and ACRs, we reiterate the prima facie view
expressed by us in our Order dated 18.1.2005. The assumption underlying the
Writ petitioner's contention that the ACRs do not reflect the details of awards
and commendations and the penalties is not correct.
Therefore,
the substratum of the reasoning of the High Court that relevant material in the
form of service registers were not made available to the Selection Committee
for scrutiny collapses.
We
cannot also endorse the view taken by the High Court that consistent with the
principle of fair play, the Selection Committee ought to have recorded reasons
while giving a lesser grading to the 1st respondent. The High Court relied on
the decision of this Court in National Institute of Raman & Ors. [AIR 1992
SC 1806]. Far from supporting the view taken by the High Court, the said
decision laid down the proposition that the function of the Selection Committee
being administrative in nature, it is under no obligation to record the reasons
for its decision when there is no rule or regulation obligating the Selection
Committee to record the reasons. This Court then observed "even the
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 the person in the absence of statutory requirement. This principle
has [1986 (Suppl.) SCC 617] at Page 633." In the next paragraph, the
learned Judges indicated as to what is expected of the Selection Committee, in
the following words:
"we
may state at the outset that giving of reasons for decision is different from,
and in principle distinct from the requirements of procedural fairness. The
procedural fairness is the main requirement in the administrative action.
The
'fairness' or 'fair procedure' in the administration action ought to be
observed. The Selection Committee cannot be an exception to this principle. It
must take a decision reasonably without being guided by extraneous or
irrelevant consideration. But there is nothing on record to suggest that the
Selection Committee did anything to the contrary" That being the legal
position, the Court should not have faulted the so called down gradation of the
1st respondent for one of the years. Legally speaking, the term 'down
gradation' is an inappropriate expression. The power to classify as
'outstanding', 'very good', 'good' and 'unfit' is vested with the Selection
Committee. That is a function incidental to the selection process. The
classification given by the State Government authorities in the ACRs is not
binding on the Committee. No doubt, the Committee is by and large guided by the
classification adopted by the State Government but, for good reasons, the
Selection Committee can evolve its own classification which may be at variance
with the gradation given in the ACRs. That is what has been done in the instant
case in respect of the year 1993-94.
Such
classification is within the prerogative of the Selection Committee and no
reasons need be recorded, though it is desirable that in a case of gradation at
variance with that of the State Government, it would be desirable to record
reasons. But having regard to the nature of the function and the power confided
to the Selection Committee under Regulation 5(4), it is not a legal requirement
that reasons should be recorded for classifying an officer at variance with the
State Government's decision.
What
remains is whether the case of the 1st respondent was duly considered vis-a-vis
the other eligible officers including Respondents 5 to 7. The question is
whether the non-selection of the 1st respondent to IPS against the vacancies
pertaining to A.P. State for the year 1999 is on account of non-adherence to
relevant rules or arbitrariness in the process of selection.
The
actual procedure adopted and the factors taken into account by the UPSC /
Selection Committee has been narrated in the additional affidavit dated
15.2.2005 filed on behalf of UPSC sworn to by the Deputy Director (AIS), UPSC.
The relevant extracts are given hereunder:
"It
is also submitted that the Regulations do not provide for the detailed method
to be followed in the matter of assessment of officers. The Commission has,
therefore, evolved certain guidelines to be followed by the Selection Committee
in the matter of the procedure for assessing the records. It is submitted that
the confidential procedure of the Union Public Service Commission has been
circulated to this Hon'ble
Court. The procedure
contained therein is followed by the Selection Committee in respect of all the
States/Cadres for induction to the All India Services under the Promotion
Regulations.
It is
submitted that the Selection Committee is required to go through the service
records of each of the eligible officers, with special reference to the
performance of the officer during the last five years (preceding the years for
which the Select List is being prepared), deliberating on the quality of the
officer as indicated in the various columns recorded by the Reporting/Reviewing
Officer/ Accepting Authority in the ACRs for different years and then finally
arrive at the classification to be assigned to each officer. The Selection
Committee also takes into account orders regarding appreciation for the
meritorious work done by the concerned officers. Similarly, it is also required
to keep in view orders awarding penalties or any adverse remarks communicated
to the officer, which even after due consideration of his representation, have
not been completely expunged.
That
as per the uniform procedure followed by the Selection Committee for preparing
the IPS Select List for 1999, the ACRs for the years 1993- 94, 1994-95,
1995-96, 1996-97 and 1997-98 were taken into consideration by the Selection
Committee for categorizing all the eligible SPS officers as 'outstanding', 'very
good', 'good', or 'unfit' as the case may be.
That,
for the year 1999 against 03 (three) vacancies, 09 (nine) officers were
considered by the Selection Committee. The respondent No.1 was considered at
S.No.08 in the eligibility list of 1999. For preparation of the Select List of
1999, the ACRs for the years 1993-94, 1994-95, 1995- 96, 1996-97 & 1997-98
were taken into consideration because the crucial date for reckoning the
eligibility is 01.01.1999. The Selection Committee on an overall relative
assessment of his service record assessed Respondent No.1 as 'Very Good' as he
secured 'Outstanding' only in respect of three years. On the basis of overall
grading as 'Very Good', the name of Respondent No.1 could not be included in
the Select List of 1999 due to the statutory limit on the size of the Select
List. That, sufficient number of officers senior to the respondent No.1 with
overall grading as 'Very Good' were available and in accordance with the
provisions of Regulation 5(5) of the Promotion Regulations, their names were
included in the Select List of 1999. Two officers senior to the Respondent No.1
who were graded as 'Very Good' also could not find a place in the Select List
of 1999 due to the statutory limit on the size of the Select List."
We
have also gone through the records of assessment placed before us by the
learned counsel for the UPSC. The arguments in the additional affidavit coupled
with the contents of the record make it clear that the 1st respondent could not
be selected for the reason that he did not get the gradation of 'outstanding'
for four years in a block of five years that was taken into account for the
purpose of evaluating the merits of the candidates.
The
learned counsel for the 1st respondent points out that for the year 1993-94
which falls within the five year range, the first respondent ought to have been
graded as 'outstanding' in conformity with the grading in the ACR. However, the
selection Committee graded him as 'very good' in view of the difference of
opinion expressed by the reporting officer and the reviewing officer. We do not
find any unfairness or arbitrariness in grading the 1st respondent as 'very
good' for the year 1993-94. If so, as he gets 'outstanding' grading only for
three years, his overall grading cannot be 'outstanding' in view of the
existing guidelines adopted by the Commission. Normally, the Court will not
interfere with the evaluation done by the Commission on a consideration of
relevant material.
However,
we have some doubts on the validity of guidelines evolved in this behalf. The
procedure of assigning the overall grading as 'outstanding', only if an officer
was classified as such in the ACRs of four out of five years, seems to dilute
the procedure of selection by merit and give primacy to seniority to some
extent. For instance, if a junior officer gets three 'outstanding' grades and
two 'very good' gradings, the officers senior to him, though they might not
have got 'outstanding' even for one year, will be selected by virtue of their
seniority. Whether this result that follows from the application of the
criterion that is being adopted by the Commission is contrary to the statutory
Regulations or whether such criteria would be violative of Articles 14 &
16, is a matter which might deserve serious consideration. But, in the absence
of specific challenge to the rule or the procedural guidelines spelt out in the
additional affidavit filed by the UPSC and the arguments not having been
advanced on this aspect, we are not inclined to express a definite opinion on
this aspect.
Taking
an overall view and having due regard to the limitations inherent in judicial
review of selection process by an expert body, we are not inclined to nullify
the decision taken by the UPSC.
In the
light of the foregoing discussion, we set aside the judgment of the High Court
and hold that the Tribunal has rightly dismissed the application filed by the
1st respondent. The appeals are thus allowed.
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