B.N.S.Reddy S/O Late B N Naja Reddy Vs. the Union of India and ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/908729
CourtKarnataka High Court
Decided OnNov-02-2010
Case NumberWRIT PETITION NO.37645/2001 (SCAT)
JudgeB.V.NAGARATHNA J.
AppellantB.N.S.Reddy S/O Late B N Naja Reddy
RespondentThe Union of India and ors
Appellant AdvocateSri: N.G.PHADKE & MEERABAI. ADV
Respondent AdvocateSri: KALYAN BASAVARAJ, ASG; SRI R.K.MASUR & KALPANAMASUR; SRI M.R.SHAILENDRA; SRi M. MADIIUSUDHAN; SRI P.S.DINESH KUMAR. CGSC
Cases ReferredAppellant vs. Union of India
Excerpt:
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 120]
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]
[b.v.nagarathna j.] this w.p. is filed under articles 226 & 227 of the constitution of india praying to call for the entire records from the i, ii and iii respondents leading to the process of making proposal. selection and appointment of the 3 res pond e nts no. 9.10 and ii to the indian police service by promotion and from the cat pertaining to the case file no.1841/2000. and quash the order dt. 13.9.2001 vide annex.p. passed by the cat, bangalore bench, bangalore, etc.
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]
order1. the petitioner, working as superintendent of police (vigilance) karnataka power transmission corporation ltd., bangalore, has filed this writ petition, being aggrieved by the order dated 13.9.2001 passed in o.a.no. 1841/2000 by the central administrative tribunal bangalore bench (hereinafter, referred to as "the tribunal" for the sake of brevity).2. the facts of the case leading to the tiling of this writ petition are that the petitioner, along with respondent no.9. 10 and 11 who are members of the karnataka police service (kps) were considered for promotion to the indian police service under the indian police service (recruitment) rules. 1954 (hereinafter, referred to as "rules") and under indian police service (appointment) by promotion (regulation) 1955. (hereinafter referred.....
Judgment:
ORDER

1. The petitioner, working as Superintendent of Police (Vigilance) Karnataka Power Transmission Corporation Ltd., Bangalore, has filed this writ petition, being aggrieved by the order dated 13.9.2001 passed in O.A.No. 1841/2000 by the Central Administrative Tribunal Bangalore Bench (hereinafter, referred to as "the tribunal" for the sake of brevity).

2. The facts of the case leading to the tiling of this writ petition are that the petitioner, along with respondent No.9. 10 and 11 who are members of the Karnataka Police Service (KPS) were considered for promotion to the Indian Police Service under the Indian Police Service (Recruitment) Rules. 1954 (hereinafter, referred to as "Rules") and under Indian Police Service (Appointment) by Promotion (Regulation) 1955. (Hereinafter referred to as "Regulation"). The main grievance of the petitioner is that at the time of consideration of the petitioner and respondent Nos.9. 10 unci 11. the aforesaid respondents have been selected but the petitioner has not been selected. According to the petitioner he joined Karnataka Police Service in the yea-: 1984. That the first respondent is the appointing authority of eligible State Police Service Cache Officers to the Indian Police Service ('IPS for short) by promotion under the Rules read with the Regulation. Thai the second respondent is the selecting authority under the regulation to constitute a Selection Committee and to make suitable recommendations to the first respondent. That .he third respondent i.e. the State of Karnataka is the authority which forwards the names of the officers in the zone of consideration working under it to the selection committee for selecting them by promotion to the IPS. That respondent Nos. 4 to 8 and the third respondent were the members of the selection committee for the promotions to the IPS posts in the year 2000 that respondent Nos.9 to 11 were selected and appointed to the IPS by promotion by the first respondent-Union of India by notification dated 1.12.2000 and their appointments were challenged in O.A. 1841/2000 before the

Tribunal and being aggrieved by the order passed by the Tribunal, the writ petition has been preferred.

3. According to the petitioner, three vacancies of IPS posts occurred in the year 2000 to be filled up by promotion by the Karnataka State Police Service (hereinafter, referred to as "KSPS" for short) Codre Personnel under the Regulations that the third respondent forwarded nine names of KSPS Officers coming under the Zone of consideration to the selection committee to fill up three posts by promotion including the name of the petitioner and respondents 9 to 11. The petitioner being aggrieved by his non-selection filed application before the Tribunal which had issued an order of status-quo on 7.12.2000. Before the tribunal respondent Nos. 6 and 8 remained exparte and other respondents filed replies and other pleadings.

4. The respondents filed their statement of objections before the tribunal. The l" respondent, i.e. Union of India stated that the State Government is the sole custodian of service records of Stale Police Officers which are required to submit a proposal for convening a meeting of review of selection committee along with the list of eligible State Police Officers and their service records and direct the Union Public Service Commission for eon side rat ion of eligible State Police Officers for their Inclusion In the select list for their subsequent appointment by promotion to (he Indian Police Service. The commission has to scrutinize the proposal and records and fix the meeting of the review selection committee whose names are nominated and as and when its meeting is fixed by the commission, the list is prepared by the selection committee, finally approved by the Union Public Service Commission which forms the selection list and according to the Union of India, its role in the entire process is very minimal. However, it has stated that the meeting of the selection committee for appointment by promotion of eligible members of the State Police Service of Karnataka to the Indian Police Service. Karnataka Cadre for the year 2000 took place on 31/10/2000 and the name of the applicant was duly considered by the selection committee and on an over-all assessment of his service records, the applicant could not be included in the list due to lower grading and statutory limit on the size of the selection list. Under the circumstances, it prayed that the application filed against it be dismissed.

5. The second and fourth respondents filed a common reply stating that the main contention of the applicant who was the applicant before the Tribunal was that when it met on 31/10/2000. The selection committee did not take merit into consideration while making selection to the Indian Public Service. According to the applicant, he had outstanding grades than the other officers in the.one for consideration, that the selections were arbitral y as gradings accepted by the authority had been tinkered, by upgrading in certain cases and down grading in certain other cases arbitrarily lo accommodate respondent Nos.9 to 11. In reply to the said contentions, it stated that the selection in the instant case was made in accordance with the Regulations wherein provision is made for the selection committee to be presided over by the chairman or a member of the Union Public Service Commission which make selection to the State Police Officers for promotion to the Indian Police Service; that in discharge of its constitutional obligations and in accordance with the Regulations, the selections were done in a just manner under the Regulations: that under Regulation 5(4), the committee classifies the eligible Stale Police Officers included in the zone of consideration as outstanding, very good, good or unfit as the case may be on an over-all relative assessment of their service records. Thereafter, as per Regulation 5(5). the selection committee prepares a list by including the required number of names first from the officers, finally classified as outstanding then, from amongst those similarly classified as very good and thereafter from amongst those similarly classified as good and the order of names inter se within which category is maintained in the order of their respective seniority in the State Police Service.

6. With regard to the contention that the selection committee had not taken into consideration the merit of the officers and particularly of the applicant, it was stated that nine officers of the Karnataka State Police Service were considered against the three vacancies available as on 1/1/2000 in the promotion quota of Indian Police Service in Karnataka Cadre; (hat the applicant was at Sl.No.8 in the eligibility list and was graded as very good on over all relative assessment of his service records. But he could not be included in the selection list owing to the statutory limit in the size of-the selection list: that the selection committee assessed al the officers in the zone of consideration using a uniform yardstick and norms adopted by the commission in the matter and selection was shown in accordance with the Regulations. The contention that the Annual Confidential Reports (ACRs) of the eligible officers are the basic inputs on the basis of which eligible officers are categorized as

"outstanding'', "very good", "good" and "unfit", was rebutted by stating that the selection committee is not guided merely by the over all grading that may be recorded in the ACRs by the reporting or reviewing officer or accepting authority but in order to ensure justice and fair play amongst It's own officers, on the basis of an examination of their senile records and their performance as reflected under various columns recorded in their ACRs by the reporting or a reviewing officer * or accepting authority th the ACRs for different years and then only it finally arrives at the conclusion or grading to be assigned to each eligible officer in accordance with the Promotion Regulations. While making the over-ail assessment, the selection committee would take into account orders regarding appreciation for meritorious work done by the officers under consideration. Similarly the selection committee also keeps in view awarding penalties or for any adverse remarks communicated to the officer which even after due consideration of his representation have not been completely expunged by the Government. The selection committee goes through service records of each of the eligible officers by special reference to the performance of the officer during the last five years preceding the year for which the selection list is prepared after an over-all relative assessment of the officers in the zone of consideration in accordance with the regulation 5(4) of the promotion regulations. It was also contended that the applicant could not have access to the ACR reports of the candidates which are confidential in nature and while citing various decisions of the Honble Apex Court, the second and fourth respondents contended that the assessments-made by the -ominission was just and equitous and accordingly, sought dismissal of the application.

7. Respondent No.3 before the Tribunal also filed its reply stating that as per the Regulations, a proposal of nine eligible officers in the order of their seniority in the police service along with all relevant records was sent to the second respondent by the third respondent for preparing a select list for three vacancies available as on 1/1/2000. After listing the names of nine persons as per their seniority, in which the applicant's name is at SI.No.8. it was stated that the selection committee which met on 31/10/2000. selected respondents No.8. 9 and 10 as these officers were within the zone of consideration at SI.Nos.3. 4 and 5 whereas, the applicant was at vSl.No.8 on an over-all assessment of their merit, that after the issuance of notification dt. 1.12.2000 by respondent No. 1 appointing respondents 8 to 10, published by the Government of India; the officers selected were deemed tq have continued in the post in which they were working consequent upon their promotion to the IPS cadre, in terms of Rule 9(1) of IPS (Pay) Rules. 1954 and that they had reported for duty in December 2000. Since an order of status-quo "was "granted in the application filed by the applicant before the Tribunal, a prayer was made for vacating the interim order of status-quo. While seeking dismissal of the application filed by the applicant herein.

8. In the additional reply statement of objection filed by respondent No. 3, it is staled that respondent No.7 herein was one of the members of the selection committee for selection of State Police^" Service Officers to IPS: that according to Rule 9 (1) of the KCS (Performance Reports) Rules. 1994. adverse remarks recorded in the performance report of respondent No.9 for the year 1993-94 were communicated to him by the Director and Inspector General of Police, vide memo dated 18/10/1994 pursuant to which, respondent No.9 submitted a representation to the State Government which after due consideration treated the same as advisory remarks, by letter dated 7/4/1995 and therefore, the submission that the State Government has no authority to convert an adverse remarks into an advisory remark is not correct as Rule 10(1) of the aforesaid Rules provide for such a procedure. Respondent No.9 had also filed an Application No.2781/96 before the KAT. Bangalore, to expunge the adverse remarks contained in the ACRs for the year 1993-94 which by its order elated 18/1/1997 held that since the authorities had not treated the remarks as adverse but treated it as advisory remarks would not come in the way of respondent No.9s future career either while considering for promotion, increment or higher salary.

9. It was further contended that the selection committee had not challenged or altered the contents or gradings in-the ACRs of the concerned officers which had assigned its own grading but for making over-all assessments of the service record it need not necessarily adopt the same grading which was given by the reporting or the reviewing officer in the performance reports in respect of each of the candidates as the selection committee has to make an over-all relevant assessment of the officers in the zone for consideration: that all connected service records for the entire service of 9 officers had been sent to respondent

No.2: that respondent No. 11 was under suspension from 10/5/1989 to 17/1/1991 on the basis of initiation of Lokayuktha investigation into the allegation of possession of assets disproportionate to his known sources of income during the year 1989 but no charge sheet was tiled before any competent court of law and the Lokayukthi in its final report recommended dropping of further proceedings and the departmental proceedings initiated against respondents No.1 1 was also withdrawn with a warning to him not to give room for such lapses and the period of suspension was accordingly treated and. there was no charge sheet issued or departmental enquiry held.

10. With regard to respondent No.9. it was contended that departmental enquiry was instituted and by an order dated 27/10/2000. he was exonerated from all charges after accepting the report of the enquiry officer; that respondent No.7 was a member of the selection committee as D'lecior and Inspector General of Police (DG and IGP); that he had not given any note of dissent while signing the proceedings of the selection committee meeting and that it was not proper on his partHo comment on the legality of the decision taken by the State Government with regard to treating the adverse remarks as advisory remarks in respect of respondent No.9.

11. Respondent No.7 who was the member of the selection committee filed statement of objections in person. At the relevant point of time, he was working as Director General and Inspector General of Police (DG & 1GP) in Karnataka. While stating that he was one of the members of the selection committee for the selection of State Police Service officers and their appointment to the IPS. stated that respondents No.5 to 8 before the Tribunal and the Chief Secretary to the Govt, of Karnataka. Sri B.K.Bhattacharya were the member of the selection committee and that the committee met ii.he chamber of respondent No.4. who was the chairman of the fcJPSC. According to him, when the members of the selection committee went into the chamber of respondent No.4. the chairman of the committee mentioned to the members including the 7"' respondent before the Tribunal, the procedure to be followed for selection of the Police Officers for appointment to the IPS and that there were three vacancies for which nine officers in their order of seniority had to be considered for selection and that the performance reports of the officers for the previous five years up to 31/3/1999 had to be considered. Every member of the selection committee including the chairman were to peruse the performance reports of two officers write grade the said reports of the said five years and the grades for the years 1994 - 95 to 1998-99. The grades sheets with columns containing the names of the officers were distributed; that 7th respondent raised an objection with regard to scrutinizing only the reports of the previous five years and instead the entire service record had to be taken into consideration. The said objection was over-ruled by the chairman: that the said respondent was given the performs nee reports of the applicant and respondent No. 9 and similarly, the performance reports of the other officers were distributed: that respondent No.7 gave the grades to respondent No.9 for the relevant years i.e.. for five years and he secured two very goods, two goods and one average. Respondent No.4 - chairman who also scrutinized the performance reports of respondent No.9 graded as three very goods, two goods for the said five years and the over all grading of respondent No.9 was recorded by the chairman as very good: that respondent No.7 protested against this procedure of giving subjective grades and said that he would not sign the proceedings. The 7th respondent also perused the performance reports file of the applicant and found that all the five ACRs for the relevant period had been graded as outstanding and that Sri B.K.Bhattacharya, Chief Secretary also perused the applicant's file and found that only three out of five -performance reports of the applicant deserved outstanding grades and two of his performance reports should be down-graded as very good.

12. Respondent No.7 has given details of the discussion which took place with regard to the ACRs written in respect of respondent No.9 and the applicant and their comparative merit. With regard to respondent No. 11 also there was a discussion as he was placed under suspension; that subsequently, respondent No.7 reluctantly signed the grading sheet grading the various officers and according to him. the selection was subjective and arbitrary and was based on extraneous considerations, having no bearing on merit and has contended that there were good and sufficient reasons as to why the respondent finally decided lo sign the grading sheet; but that in public interest he cannot disclose the reasons for doing so. According to the 7"' respondent if the grading is recorded in the performance reports, it cannot be changed by way of upgrading or down grading by the selection committee and the procedure laid down by respondent No.4 was contrary to Regulations 5(4).

13. According to the 7th respondent, the approximate number of years of service put in by the 9 officers considered by the selection committee was from 16 to 23 years and that it was wrong to consider their suitability for appointment to the IPS based on the performance reports of previous five years: that respondent No. 11 was under suspension for about two years facing criminal charges of possessing assets disproportionate to his Known sources of income and he was not exonerated of the charge touching upon his integrity. With regaid to respondent No.9 also he faced disciplinary proceedings on several charges and an enquiry was conducted and that the report absolving respondent No.9 of the charges was issued four days before the selection committee was to meet on 31/10/2000 after keeping enquiry file pending for nearly eighteen months; that for the period 1993-94 adverse remarks were written in the ACRs of respondent No.9 which the State Government thought it fit to treat these remarks as advisory remarks. According to 7th respondent, the procedure followed by respondent No.7 had resulted in unequals being treated as equals thereby violating Article 14 and 16 of the Constitution and therefore, the notification dated 1/12/2000 had to be quashed.

Accordingly, he sought for allowing the application.

14. Respondents No.9. 10 and J 1 have filed their reply and additional reply to the application and respondents No.9 and 10 also filed counter affidavit before the Tribunal.

15. The tribunal after considering the records produced before it and the pleadings and arguments of the respective sides, came to the conclusion that the selection committee, after- looking' into the Annual Confidential Reports (ACRs) of the petitioner and respondents 9 to 10 for a period of five years between 1994-95 to 1998-99 graded them accordingly as outstanding, very good, good and average and affirmed the selection made by the Selection Committee and declined to interfere with the application fileel by the petitioner. Being aggrieved by the said order dated 13 9.2001 passed in O.A.No. 1841/2001, the petitioner has preferred this writ petition.

16. Respondent No.2 & 4 herein have filed statement of objection by wav of counter affidavit reiterating the stand taken by them before the tribunal.

17. We have heard the learned counsel for the petitioner and the learned counsel for respondent Nos. 1 & 5. and learned AGA for Respondent No.3 and the learned counsel for respondent Nos. 9 to 10.

18. Sri N.G.Phadke. learned counsel for the petitioner contended that the selection committee assigned various grades to the petitioner and respondent Nos.8 to 10. That 31.10.2001 was the date of the meeting of the selection committee and that after giving the respective grades to the petitioner and respondent Nos. 8 to 10 the selection committee upgraded the grading of respondent Nos. 9 and 10 and down graded the grading of the petitioner which is a serious irregularity, it is also contended that the applicant's case was looked into by three members instead of two members only and that the entire attempt of the selection committee was to ensure that the petitioner would not be selected He has also stated that the reply tiled by Respondent No.7 before the tribunal is not contradicted by other respondents and therefore the same has to be considered for setting aside the selections in the instant case. He has relied upon certain decisions of the Apex Court to contend that the best candidates should be selected to be IPS Officers and that in the instant case, there has been arbitrary action, unreasonableness and unfairness meted out to the petitioner on account of bias and therefore, the case of the petitioner must be considered in its proper perspective and relief must be granted to him as against the other selected candidates. The decisions relied upon by tie counsel for the petitioner shall be adverted to later.

19. The Assistant Solicitor General, Sri.Kalyan Basavaraj appearing for the Union of India has along with . Smt.Shela Krishna learned A.G.A. have contended that the order passed by the Tribunal is just and proper which does not call for any interference in this writ petition and the counsel for tiie second respondent has also produced records.

20. Learned AGA Smt.Sheela Krishna appearing for the State of Karnataka has submitted that the question raised in this writ petition is with regard to the non-selection of the petitioner by respondent Nos. 1 and 2 and therefore. the state has no say in the matter.

21. Learned counsel. Sri.R.K.Masur, appearing for respondent No. 9 has stated thai the contention of the counsel for the petitioner with regard to the statement of objections filed by respondent No.7 before the tribunal cannot be taken at its face value as he was one of the members of the selection committee and has signed the proceedings of the selection committee whereby the petitioner was not selected and therefore, the pleadings filed by respondent No.7 before the tribunal cannot be looked into as they are contra to the records. He has also submitted that judicial review of promotions is in a very limited sphere and that in the instant case, the petitioner is trying to make out a case only on the basis of the statement of objections of respondent No.7 which does not hold any water. He has also submitted that the petitioner has not alleged bias against the respondents who are the members of the selection committee and relied upon several decisions of the Apex Court with regard to the scope of interference with regard to selections made by a selection committee. He has also stated that in any case, the petitioner was selected in the 2003 selections as an IPS Officer. Relying on certain decisions of the Apex Court he has stated that the ACR is not the sole basis for selection of an officer and he has clarified the remarks made in the ACR of respondent No.9 stating that they were only advisory in nature so as to contend that the order passed by the tribunal is just and proper which does not call for any interference in this writ petition. The decisions relied upon by him shall be adverted to later.

22. Sri.M.R.Shailendra. learned counsel appearing for respondent No. 10 has also supported the order passed by the tribunal and has adopted the argument::- of the counsel appearing for respondents No.9. Counsel appearing for Respondent No. 1 i has also supported the order of the tribunal.

23. In reply learned counsel for the petitioner, reiterated that the facts in the counter filed by respondent No.7 have not been denied by the other respondents who were part of the selection committee the same ought to have been considered By the tribunal and interfered in the matter. He has stated that the reasoning given by the tribunal in para 11 of its order is not in accordance with law and that only ACRs have to be looked into by the selection committee and no other material can be considered into by the selection committee and hence, the selection committee has tampered with the ACR by upgrading respondent Nos. 8 to 10 and down grading the petitioner only to ensure that the petitioner was not selected and hence, the order passed by the tribunal without looking into these aspects of the matter calls for interference in this writ petition.

24. Having heard the learned counsel on both sides and on perusal of the material on record, the only point that arises for our consideration is as to whether the order passed by the tribunal calls for any interference in this writ petition so as to grant relief to the petitioner.

2b. At the outset ii is necessary to note that in the instant case the selection by way of promotion to the cadre of IPS was in exercise of the powers conferred under Rule 9 and Regulation 9. The relevant regulation pertaining to appointment by promotion of IPS are as follows. Regulation .3 speaks of Constitution of the committee to make selection. Regulation 5 deals with preparation of list of suitable officers. Regulation 6 deals with consultation with the Union Public Service Commission. Regulation 7 pertains to the manner in which the selection list has to be prepared by the commission. Regulation 9 deals with the appointments to the service from the select list.

26. The said Regulation was made in exercise of powers under Rule 9 of the Recruitment Rules and were initially promulgated in the year 1955. Subsequently, by notification dated 31.12.1997 Regulation 9 was amended

and the amended regulation reads as follows:

"In regulation 9 oj the principal regulations.-

W for sub-regulation (1). the following regulation shall be substituted, namely:-

II) Appointment of a membei of the Siate Police Service, who has expressed his 'willingness to be appointed to the Service, shall be made by the Central Government in the order in which the names of the members of the State Police Service appear in the select list for the time being in fore- during ihc period when the select list remains in force:

Provided that in a Joint Cadre, the appointment of members of the Mate police service shall, subject to any agreement regarding filling up of the vacancies in the Joint Cadre by promotion of a member of the State Police Service sewing in connection with the affairs of any such State, be made in the order in which the names of the members of the state police service occur in the relevant parts of the select list for the time being in force:

Provided further that the appointment of an officer, whose name has been included or deemed to be included in the select list provisionally under the proviso to sub-regulation (5) of regulation 5 or under the proviso to sub-regulation (3) of regulation 7. as the case may be, shall be made within sixty days after the name is made unconditional by the Commission in terms of the first proviso to sub-regulation (4) of regulation 7:

Provided also that in case a select list officer has expressed his unwillingness for appointment to the Service, he shall have no claim for appointment to the Service from that select list unless he informs the Central Government through the State Government before the expiry of the validity period of the select list, revoking his earlier expression of univillingness for appointment to the service.

(ii) Sub-regulation (21 shall be omitted.

27. The proposal consisting of fallowing nine eligible officers in the order of their seniority in the State police service with all relevant records was sent by the third respondent to the second respondent for preparing a select list of three vacancies as available on 1/1/2000 namely:-

1. Sri N.Somashekar

2. Sri Praveen Kumar Urva

3. Sri Syed Ulfath Hussain

4. Sri R.S.Harihar

5. Sri B.Srikanlappa

6. Sn K.Srinivasa

7. Sri BA.Padmanayana

8. Sri B.N.Srinivasa Reddy

9. Sri P.Muniswamy

In the said list, the petitioner's name is at SI.No.8. while the candidates selected are at SI.Nos.3, 4 and 5. Therefore, it is not disputed that the selected candidates are senior to the petitioner. The selection committee meeting was convened by the second respondent on 31/10/2000 and the selection committee included the names of respondents 9 and 11 "in the select list as suitable for appointment to IPS against the three vacancies is in accordance with the regulation 5(4) and 5(5). In the instant case, the State Government issued a notification dated 1.12.2000 whereby, respondent Nos. 9 to 11 were appointed by promotion to the Indian Police Service on probation. The said notification though dated 5.12.2000 has reproduced the notification - issued by tfie Government of India dated 1.12.2000 with regard to the said appointments which is challenged herein. The selected officers as on the date of appointment to IPS were working as Deputy Commissioner of Police on VV1P Security, Bangalore City: Addl. Superintendent of Police, Bijapur District: Superintendent of Police. Directorate of Civil Rights Enforcement. Bangalore, respectively, and on their appointment to IPS. These officers are deemed to have continued In the 8 same posts, by issuance of order of equivalence.

28. Before going into the merits of the case, it is necessary to advert to the position of law in the matter of promotion by selection of State cadre officers into All India Service. IPS in the instant case.

29. Learned counsel for the petitioner has relied on the following citations:

a. In the case of Union of India and others -vs. IA. Gen. Rajendra Singh Kadyan and Another., reported in (2000) 6 SCC 698, it is stated that wherever fitness is stipulated it is non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "Senidlity-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed and subject of fulfilling this requirement the promotion is based on seniority. There is no requirement of assessments of comparative merit both in the case of seniority - cum - fitness and seniority-oum-merit. Merit-cum-suitability on the other hand, with due regard lo seniority is prescribed in the case of promotion to All India services of all eligible candidates and selecting best out of them where there is assessment of comparative merit. The said observations were made in the context of the criteria for selection for promotion on the basis of three categories namely seniority cum fitness, seniority cum merit and merit cum suitability with due regard to seniority.

b. In the case of Olga Tellis and others VsBombay Municipal Corporation 81 others reported in (AIR 1986 SC 180). though is a case arising under Bombay Municipal Corporation Act and right to life under Arl.2i and under Articles 39-A and 41 of Constitution of India, was cited in the context of procedure that was followed in the instant case while making the selection. In the said decision it is stated that procedure prescribed by law must conform to norms of justice and fair play and if procedure which is unjust or unfair in the circumstances of a case it would attract the vice of unreasonableness thereby vitiating the law which prescribes that procedure and consequently the action taken under it. Tliat every action of the executive Govt, must be informed with reason and must be free from arbitrariness whidh is a minimal requirement.

c. In the case of A.K.Kripak and others vs.- Union of India 8L others reported in (AIR 1970 SC 150). was cited which regard to applicability of rules of natural justice in administrative actions particularly with regard to selection made by a Selection Board and where there is a bias shown by the members of a Selection Board then in such a case the selection is vitiated.

d. In the case of R.S.Das vs. Union of India 81 Others reported in (AIR 1987 SC 593). is a case which arises under the All India Services Act and Indian Administrative Services (Recruitment Rules), 1954 and Indian Administrative Service (Appointment by Promotion) Regulations. 1955. wherein it is stated that the principle object ol the promotion system as contained in the regulations is to secure the best possible incumbents for promotion to the I.A.S which is the back bone of the administrative machinery of the Country. This object is sought to be achieved by the Regulations in prescribing merit as the sole lest for promoiion. In order to judge merit the regulations provide for categorization of eligible members of the State Civil Service on the basis of the service records which are scrutinized by the Committee consisting of high ranking officers of the State Government and the Central Govt, and are again scrutinized by the State Govt, and the U.P.S. and only thereafter final shape is given to the selectiorr list. Therefore there are adequate checks and safeguards at different stages by different authorities. But if any dispute arises 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 officer. It is true that when 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 'or promotion to All India Services ensures non-subjective and impartial selection. There is no reason to hold that the Selection Committee would not act in fair and impartial manner in making selection. The recommendations of the selection committee are scrutinized by the State Govt, and if it finds any' discrimination in the selection made it has the power to refer the matter to the commission as it is under the legal obligation to consider the view expressed by the State Govt, along with the records of officers before approving the select list. According to the Apex Court the selection committee and the commission both includes person having both experience and expertise to assess the service records and ability to adjudge the suitability of officers, though the Courts have ample power to strike down the same and that is an adequate safeguard against arbitrary exercise of power.

e. In (he ease of State of U.P. and Others vs. Maharaja Dharmander Prasad Singh reported in (AIR 1989 SC 997) the procedure with regard to judicial review has been stated when an issue is raised as to whether a decision is vitiated, by taking into account irrelevant, or neglecting to take into account relevant factors, is so manifestly unreasonable that no reasonable authority entrusted with the power in question could reasonably come to such a decision wherein, the judicial review of the decision-making process would include examination, as a matter of law. the relevance of the factors.

f. In the case of Rama:ia Dayaram Shetty -vs. International Airport Authority of India 81 Others reported in (1979) 3 SCC 489 = AIR 1979 SC 1623. it has been cited on the point as to whether a person can be black listed without giving him an opportunity to be heard. In the said decision, it is stated that the power of discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases. Hie action of the Govt, would be liable to be struck down, unless it is shown by the Government that the departure was not arbitrary, but was based on sonic valid principle which in itself was not irrational, unreasonable or discriminatory.

g. In the case of A.L.Kalra vs. Project & Equipment Corporation of India Ltd. reported in (1984) 3 SCC 316, it is stated that an administrative authority acting under a regulation is bound by the regulation

h. In the case of State of Punjab Si Another vs. Gurdial singh Si Others reported in (1980) 2 SCC 471), which is a matter which arises under the Land Acquisition Act. it is stated that when malafides are alleged against certain persons who do not counter the said allegations by appearing before the Court then in that case the allegation of malafides has to be accepted.

I. In the case of Pra.bhak.ar Singh Si Another vs. Union of India Si Others reported in (2006 (3) ATJ 364). is a decision of the Delhi High Court wherein it is stated that when over all grading in annual confidential reports recorded by the llirarchy of Officers is inconsistent, the DPC can make its own assessment and unless there is some objective

J. material or reason shown, the DPC cannot tone down the ACRs so recorded. In the said case, the DPC downgraded junior officers from outstanding to very good and upgraded seniors from average to very good without giving any reason or showing any material t& do so. The matter was remitted back for fresh reconsideration in accordance with law.

30. Learned counsel for respondent no.9 has cited the following decisions:

a. In the case of Mrs.Anil Katiyar vs. Union of India and Others reported in AIR 1997 SC 2656. with regard to the jurisdiction of administrative Tribunal, in the context of a challenge made to a selection of a candidate to a promotional post, it was held that the Tribunal could riot sit in the judgment as an appellate authority unless selection assailed has been vitiated by mala fides or as being arbitrary.

b. In the case of Durgdevi and Others vs. State of HP and Others reported in 1997 4 SCC 575 in the context of recruitment process and a challenge made thereto Apex Court has held that the Tribunal cannot arrogate to itself the power to judge the comparative merits of the candidates and consider Ihe fitness and suitability for appointment that was the function of the selection committee. The order of the Tribunal in the said case was remitted back to the tribunal for a fresh disposal after hearing the parties.

c. In the case of State of Madya Pradesh vs. Srikant Chaphekar reported in AIR 1993 SC 1221 in the context of promotions and adverse remarks in annual confidential report the Apex Court held that the Tribunal overstepped its jurisdiction in reaching the conclusion that the adverse remarks were not sufficient to deny the employee to the post of Deputy Direotoi. That it is not the function of the Tribunal to assess the ser/ice record of a Government servant and order his promotion on that basis. It is for the authorities to evaluate the same and make recommendations to sucn evaluations it was more so. when instant case was not a iii case where even a direction to consider the employee for promotion could be given as ihe employee kept quiet for seven years till he approached the Tribunal and it would not be in^the interest of justice to issue any such direction after a period of more than a decade.

d. In the case of Dalpat Abasaheb Solunke -vs. Dr.B.S.Mahajan, reported in AIR 1990 SC 434. the Apex Court has held that it is not the function of the Court to hear appeals over decisions of the Selection committee and scrutinize relative merits of candidates and that whether a candidate is fixed for a particular post or not has 10 he decided by the duly constituted Selection Committee which has the expertise on the subject as the Court has no such expertise.

e. In the case of Smt.Nutan Arvind, Appellant vs. Union of India &. Another reported in AIR 1996 SC 3352, it is stated that the Supreme Court cannot sit over assessment made by the Departmental promotional committee as an appellate authority.

f. In the case of R.Ponnuswamy -vs.- The Registrar Anna University and another (1992 (4) SLR 23). it is stated that it is not for the High Court to sit in appeal or to interfere with the decision of the selection committee with regard to the suitability of the candidate for the particular post, unless there is an infringement of fundamental right.

g. In the case of Bihar State Public Service Commission and another -vs.- Dr.Shiv Jatan Thakur reported in (AIR 1994 SC 2466). it is stated that a member of the public service commission cannot question the duties discharged by the commission as a body while he is its member or while he was its member.

h. In the case of The Chancellor and another -vs.- Dr.Vijay Anandkar and others 1(1994) 1 SCC 169]. ii is stated that it is not a bonaficle act on the part of the members of the committee to renege their own recommendations by writing to the higher authority that the selected candidate did net possess an essential qualification but this aspect was over looked by the committee nor is it proper to encourage non selected candidates to obtain letters to this effect from the members spelling of renege.

i. In support of the 9!i respondent the order of the Karnataka Administrative Tribunal in Application No.2731/96 dated 20/1/1997 has been cited, wherein it is slated that remarks made in the ACRs of respondent No.9 would not come in the way of his future career either while considering for promotion or increment or for higher salary.

j In the case of Mir Ghulam Hussan and Others -vs.-Union of India and Others [(1973) 4 SCC 135]. it is stated that the absence of adverse remarks would not entitle a Govt, servant to promotion automatically.

k. In the case of Ramanand Prasad Singh and another -vs.- Union of India and others [(1996) 4 SCC 64]. it has been held that the selection committee does not necessarily adopt the same grading which is given by the reporting or reviewing officer in respect of each of the candidates infect the selection committee makes an over all relative assessment of the confidential report dossiers of the officers in the zone of consideration thus it does not evaluate the confidential repot dossier of an individual in isolation. It is after this comparative assessment that the best candidates are put m the select list.

31. Thus what emerges from the various case law and citations relied upon by the learned counsel on both sides is that m the case of selection made on the basis of seniority-cum- merit, a minimum merit has to be satisfied by the particular officer and that in the case of All India Seniees where merit-cum-suitability with due regard to seniority is prescribed in the context of promotion, assessment of comparative merit of all eligible candidates and selecting the best out of them is a mandatory requirement.

32. With regard to the various propositions stated in the decisions of the Apex Court relied upon by the learned counsel for the petitioner, particularly in the context of unreasonableness, malafides and arbitrariness, we can have no second opinion on the same. However, the question is. as to how. in the instant case the petitioner has been prejudiced or has been adversely affected on account of the action of the selection committee is the question which has to be determined. Intact, on going through the pleadings before the Tribunal, we do not find that any case of bias on the part of any members of the selection committee vis-a-vis the petit oner has been pleaded, therefore, all those decisions with regard to bias are not applicable to the present case.

33. lnfact. in the case of R.S.Das referred to supra, the Apex Court ha categorically stated that the machinery designed for preparation of selection list under the regulation for promotion to All-India Service ensures injective and impersonal selection. The selection committee is constituted by high-ranking responsible officers presided over by the chairman or a member of the Union Public Service Commission but the Commission is under a legal obligation to consider the views expressed by the State Government along with the records of officers before approving the select list and where power is vested in a 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 or in art arbitrary manner Courts have ample power to strike down the sane and that is an adequate safeguard against the arbitrary exercise of power. Therefore the question that arises in the present case is as to whether the petitioner has been successful in making out a case that he was excluded from being promoted to die IPS on account of arbitrary exercise of power by the selection committee. It is only under such circumstances, would judicial review of the selection made in the instant case can arise.

34. In the context of judicial review of the merits of a selection made KF appointment to a service or a civil post, it has to be noted that the Courts or the Tribunal is not expected to play the role of an appellate authority or an umpire with regard to the proceedings of the DPC and that it cannot sit in judgment over the selection made by the DPC unless the selection is assailed as being initiated by mala I ides or on the ground of it being arbitrary. It is not the case of the petitioner in the instant ease that the selection by the selection committee was initiated by malafides. It is also held that it is not the function of the Court to hear the appeals over the decisions of the selection committee and to scrutinize the relevant merits of the candidates and the question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted selection committee which has the expertise on the subject. the selection made by the selection committee can be interfered with only on limited ground such as illegality or patent material irregularity in the decision of the selection committee or its procedure initiated in the selection or proved malafides affecting the selection and not otherwise. When the committee consisting of experts selected candidates after going through all the relevant materials before it. the truthfulness of the said selection on the ground of the so-called "comparative merit of the candidates as assessed by the Court while sitting in appeal over selection was held to be impermissible by the Apex Court. It is also relevant to note that the absence of adverse remarks would not entitle a Government Servant to promotion automatically and that the selection committee cannot adopt the same grading which is given bv the reporting or the reviewing officer in respect of the candidates. The selection committee has to make an over all relevant assessment of confidential reports as well as the other material which are sent and on a comparative assessment, the best candidates hove to be selected based on seniority.

35. .The % Tribunal after going through the proceedings of the selection committee held on 31/10/2000 along with the final proceedings of the selection committee, the proceedings pertaining to the manner in which individual candidates were first graded annually and then on an overall grading found that all the members of the selection committee had duly endorsed not only the final proceedings but also the proceedings relating to the annual gradings and other gradings of the candidates including the applicant/petitioner and respondents No.9 to 11 separately and thereafter, came to the conclusion that the members of the selection committee including the 7'1' respondept had clearly indicated their endorsement of the over all grading and the final decision ol the selections made by duly signing the proceedings. The contention of the applicant that there were irregularities as pointed in the reply statement filed by respondent No.7 was not accepted by the Tribunal.

36. The selection committee in the instant case is a high-level committee which has given its own conclusion on the basis of review by an officer and whether he was or was not competent to write the A.C.Rs and thereafter, has considered as to whether the officers concerned were meritorious having regard to their performance reports as well as their seniority and thereafter, orepared the selection list on an over all assessment cf merit.

37. In the instant case, the procedure as prescribed under the regulations narticularly Regulations 5 and 9 have been complied with. Under Regulation 5(4). the selection committee has to classify the eligible officers as Outstanding. Very Good, -Good> Unfit as- the case may be on an over-all relative assessment of the service records and under Regulation 5(5), the list has to be prepared by including the required number of names first, from amongst the officers finally classified as Outstanding and then, from amongst the officers similarly classified as Very Good and thereafter, from amongst similarly classified as Good and the order of names inter-se within each category shall have to be in the order of their seniority in the State Police Service. The above procedure is an over-all assessment of the comparative merit of the officers in the zone of consideration. Therefore, over-all relative assessment of the service records of the officers has been done in the instant case and hence, the contention of the petitioner that the assessment has to be made by the selection committee solely on the ACRs is not correct. The ACRs along with other relevant material set t by the State Govt, have to be considered together while classifying the eligible officers and preparing the list of officers to be promoted to the IPS cadre.

38. The contention of the petitioner that there has been upgrading and downgrading of the officers while assigning over ali relative assessment vis-a-vis the service records cannot be accepted as the grading given by the selection committee is in terms of Regulation 5(4) based on the performance reports and other relative material sent by the State Government which is an independent assessment to be made by the selection committee in respect of the eligible officers and thereafter, the over all relative merit of the officers has to be considered by the selection committee. Therefore, the contention that the petitioner has been down graded by the selection committee while Respondents No.9 to 11 have been upgraded is not correct. It is also to be noted that based on the relative merit assessed by the selection committee and the seniority of their officers, the selections have been finalised.

39. In the instant case, much reliance has been placed on the reply statement tiled by respondent No.7 who was a member of the selection committee, which considered the selections in the instant case and it was contended that Since the reply given by respondent No. 7 has not been contradicted by 'he ether respondents, it has to be concluded that the said reply is correct on its face value and on the basis ot the same. Ihe selection has to be set aside. In this context, it is relevant to refer to the decision of the Apex Court in the ease of Bihar Public Service Cornmission, supra, where, in categorical terms, it is stated that no member of a Public Service Commission can be aliowed to question the validity of decisions or the performance of functions or duties discharged by the public service commission as a body while he was its member. It ought to be so forHhe simple reason that such member must be regarded to be a party to the functions required to be performed or the duties required to be discharged by the public service commission as a body or institution even though he might have been a dissenting member or a member in a minority or member who had abstained from taking part in such fund ion performed or duty discharged.

The discretionary remedy vested in the High Court under Article 226 of the Constitution cannot therefore be allowed to be invoked by a member of the Public Service Commission to question the correctness or validity of functions performed or duties discharged by the public service commission as a body or institution and accordingly well establish procedures. It is relevant lo note that in the instant case, the 7"' respondent despite stating that the procedure followed by the selection committee was not in accordance with law. nevertheless, is a signatory to the selection made and hence, he cannot subsequently withdraw himself from the said selection by filing a statemeni of reply contrary to the selection mode. Thus in the instant case, the provisions of law have been complied with by the selection committee and endorsed and signed including the 7"1 respondent and no case of arbitraYiness or malafides has been made out by the petitioner.

40. It is relevant to note that the sanctity of the selection process or the sanctity of the selections made has to be maintained otherwise, it would be a travesty of the selection proeess if the candidates are encouraged to question the process of selection committee after the selection is over by meeting the members of the selection committee and obtain material suitable to their case.

41. It is also necessary to note that the ACRs are written in respect of each officer by the higher officer for the respective years. At the lime of promoting a group of officers who fail within the zone of consideration, a comparative merit of the performance reports or the ACRs has to be made by the selection committee. The material as found in the ACRs cannot simply be accepted or taken at their face value by the selection committee for if that be so. then they would have been no necessity of constituting a selection committee for the purpose of assessing the comparative merit of the officers since with regard to promotion to All India Sendee, it is the most meritorious officers who are within the zone of consideration and having the requisite seniority who have to be promoted, keeping in mind the object for which they are promoted to the All- India Service. Under the circumstances, the selection committee meets for the purpose of considering not only the ACRs of the respective officers but also for the purpose of making a comparative assessment of the said officers who fall within the zone of consideration so that the best officers are promoted to Al! India Service. Hence, the committee has to apply its mind to the service record and also make its own assessment of the service record and thereafter, on a comparative assessment of the officers concerned draw up the list of selected candidates. Therefore, the selection committee does not evaluate the Confidential Report of an individual officer in isoiation as is done at the time of writing ol the Confidential Reports by evaluating the particular officer concerned. It is infact, after a comparative assessment, that the best candidates who are named in the select list are selected. Hence the selection committee has not exercised its functions in an arbitrary or unreasonable manner in the instant case.

42. As far as the contention that the selected candidates had adverse remarks in their ACRs and/or were facing disciplinary action is concerned, the said facts were considered by the selection committee and on the basis of the comparative merit of the candidates concerned, the selection was made by the selection committee. In the instant case, it is not proper for this Court to venture into the question as to whether the selection committee was right in assigning the comparative merit of the candidates falling within the zone of consideration and give its own judgment on the same. Ttie selection committee comprising of high officials of the State Government as well as the Central Government and the Union Public Service Commission in our opinion constitute an expert body who have the expertise to assess ttie service records of the candidates and also their inter se men', and have arrived at a decision to promote respondent Nos.9 to 11 for IPS. The said decision arrived at by the selection committee cannot be substituted on a fresh comparative merit of the candidates assessed by this court. Under the circumstances, the contention of the counsel for the petitioner that the petitioner was down graded and the selected candidates who were less meritorious were upgraded by the selection committee cannot be accepted.

43. For the aforesaid reasons, the Tribunal was justified in dismissing the application. The writ petition hence fails and is accordingly dismissed. Parties to bear their own costs.