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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM AND
ARUNACHAL PRADESH)
WP(C) No. 4548 of 2012
Sri Arup Kumar Das - Petitioner
- Versus -
Union of India and others -Respondents
BEFORE
THE HON’BLE MR. JUSTICE I. A. ANSARI THE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH
Advocates present:
For the petitioner : Mr. N Nath, Advocate.
For the respondents : Mr. DC Chakraborty, Central Govt. Counsel, Mr. I Hussain, SC, CGC, Mr. PS Deka, Govt. Advocate, Assam, Mr. S. Sharma, Advocate, Mr. DK Mishra, Amicus Curiae,
Date of hearing : 20th June, 2013. Date of Judgment : 22nd July, 2013
Judgment and Order
(Ansari, J)
The material facts, giving rise to the present writ petition, made
under Article 226 of the Constitution of India, may, in brief, be set out as
under:
(i) The petitioner came to be appointed, on 18-11-1982, as
Assistant Conservator of Forest, Government of Assam, and he was
promoted, on 21-11-1986, as Deputy Conservator of Forests. The State
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Government published, on 25-08-2005, a draft gradation list showing inter
se seniority of Deputy Conservator of Forests as on 01-08-2005.
(ii) The Union Public Service Commission (hereinafter referred
to as ‘UPSC’) constituted, in the year 2009, a Selection Committee to
recommend suitable officials from State Forest Service for promotion to
the Indian Forest Service for the year 2008, the number of vacancies, for
carrying out promotion to the Indian Forest Service, being three for the
year 2008.
(iii) As the zone of consideration is taken 3 times the number of
vacancies available, 9 names were to be considered for filling up the said
3 vacancies for the year 2008. The names of the writ petitioner as well as
the 4th respondent herein were included amongst the incumbents, whose
candidature was placed before the Selection Committee for consideration.
(iv) The Selection Committee convened its meeting to
recommend the names of the State Forest Service Officials for promotion
to the Indian Forest Service for the year 2008. Promotion from the State
Forest Service to the Indian Forest Service (hereinafter referred to as ‘IFS’)
is governed by the Indian Forest Service (Appointment by Promotion)
Regulations, 1966 (hereinafter referred to as the ‘Promotion Regulations’)
and the criterion for such promotion is merit-cum-suitability.
(v) Regulation 5 (3AA) of the Promotion Regulations provide for
the manner of promotion to the State Forest Service Officials to the IFS. In
terms of Regulation 5(3AA), the Selection Committee shall classify the
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eligible officers as ‘Outstanding’, ‘Very Good’, ‘Good’ or ‘Unfit’, as the
case may be, on the basis of overall relative assessment of their service
records. Thus, the Annual Confidential Reports (hereinafter referred to as
‘ACR(s)’) of the last 5 years, immediately preceding the year of selection,
amongst other documents, and records, pertaining to the service of the
candidates, formed the foundation for evaluation of relative merit of the
candidates for their ultimate categorization.
(vi) The ACR of the State Government officials, in Assam, is
recorded in accordance with the provisions of the Assam Services
(Confidential Rolls) Rules, 1990 (hereinafter referred to as ‘the ACR
Rules’) framed under Article 309 of the Constitution of India, which
ordain the procedure for writing and maintaining confidential report,
review and acceptance thereof as well as consequential grading of the
officer concerned. Rule 2(c) of the ACR Rules defines confidential report
to be one as drawn up in terms with the procedure laid down in Rule 5 of
the ACR Rules, which, in turn, contemplates that a confidential report,
containing the appraisal of the performance, character, conduct and
qualities of every Government employee, shall be written for each
financial year, ordinarily, within, at the latest, two months of the close of
the financial year. Rule 6 of the ACR Rules envisages that the confidential
report shall be reviewed by the reviewing authority within one month of
its being written. Sub-Rule (3) of Rule 6 makes the reviewing authority or
accepting authority, as the case may be, competent to review the
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confidential report if the authority concerned has seen the performance of
the employee for, at least, 90 days during the period for which the report
has been written. The confidential report, upon review, shall, under Rule
7 of the ACR Rules, be accepted with such modification as may be
considered necessary and countersigned by the accepting authority
concerned within one month of its review.
(vii) The meeting of the Selection Committee, constituted by the
UPSC, was convened, on 08-12-2009, to consider the cases of the suitable
eligible officers of the State Forest Service including the cases of the
petitioner as well as 4th respondent and to recommend 3 officials of the
State Forest Service for promotion to the Indian Forest Service. Neither
the petitioner nor the 4th respondent was found suitable for promotion
and their names were accordingly did not figure in the list of
recommendees for promotion to the IFS.
(viii) Acting on the recommendations, so made, Ministry of
Environment and Forest, Government of India, issued a notification, on
25-08-2010, promoting the said three officials to the Indian Forest Service,
these three officials being, Sri Hem Kanta Talukdar, Sri Chitta Ranjan
Borbora and Sri Modhusudhan Singha and these three persons were
accordingly promoted to the Indian Forest Service and allocated the then
Assam-Meghalaya Joint Cadre by notification, dated 31-08-2010, issued,
in this regard, by the Director, Ministry of Environment and Forests,
Government of India. All the three persons, who were so promoted, were
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junior to the petitioner in the gradation list, which had been published, as
already indicated above, on 25-08-2005.
2. In the month of April, 2010, the petitioner came to know from
reliable source that his grading, in the ACR of 2002-03, was given ‘Good’
by the reporting authority, but the reviewing authority downgraded it to
‘Average’ without assigning any reason therefor. The petitioner also
came to learn that in his ACR, pertaining to the period 30-09-2004 to 31-
03-2005, the reviewing officer had assigned him the grading ‘Average’,
though all the attributes, recorded by the recording officer under various
parameters, indicated that the petitioner could have very well been
graded as ‘Good’. This apart, the petitioner also came to learn that his
performance, for the period from 01-04-2004 to 29-04-2004 and also for
the period from 18-08-2005 to 05-01-2006, remained without being
appraised inasmuch as the petitioner’s ACRs for the said two periods,
namely, 01-04-2004 to 29-04-2004 and 18.08.2005 to 05.01.2006, had neither
been prepared nor necessary steps were taken, in this regard, by the
reporting officer without any discernible reason.
3. The downgrading of the ACR of the petitioner, for the period 2002-
2003 from ‘Good’ to ‘Average’ by the accepting authority without
assigning any reason therefor, was, in effect, an adverse entry,
particularly, in the context of Regulation 5(3AA) of the Promotion
Regulations, which mandates classification of eligible officers as
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‘Outstanding’, ‘Very Good’, ‘Good’ or ‘Unfit’ on the basis of overall
assessment of the relative merit of their service records.
4. In the face of the classification, which is required to be made by
Regulation 5(3AA), any entry, which is below ‘Outstanding’, is an
adverse entry and it will render a person ‘Unfit’ for promotion to the IFS.
The said moderated entry, downgrading the petitioner’s ACRs from
‘Good’ to ‘Average’, for the year 2002-03, was never communicated to the
petitioner at any point of time, though such an entry was an adverse
entry and ought to have been communicated to the petitioner in terms of
Rule 10 of the Assam Services (Confidential Rolls) Rules, 1990.
5. The petitioner, then, filed, on 19-07-2010, a representation to the
Commissioner and Secretary, Environment and Forests, Government of
Assam, seeking review of his ACRs to ascertain if there was any down
grading of any entry, which was adverse in nature and to rectify if there
was any such adverse entry.
6. By his order, dated 16-09-2010, the Commissioner and Secretary,
Environment and Forests, Government of Assam, upgraded the
downgraded entry of the petitioner, for the period 2002-03 as well as for
the period 30-09-2004 to 31-03-2005, from ‘Average’ to ‘Good’ and further
directed the concerned recording officers to record the ACRs of the
petitioner for the period, which was left unrecorded, i.e., for the periods
from 01-04-2004 to 29-04-2004 and from 18-08-2005 to 05-01-2006.
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7. Pursuant to the order, so issued on 16-09-2010, the ACRs, for the
periods from 01-04-2004 to 29-04-2004 and 18-08-2005 to 05-01-2006,
which had not been appraised, was subsequently recorded and the
petitioner was assigned the grading ‘Very Good’ and ‘Outstanding’ for
the periods from 01-04-2004 to 29-04-2004 and from 18-08-2005 to 05-01-
2006, respectively.
8. Thereafter, the 4th respondent, too, preferred representation to the
Commissioner and Secretary, Environment and Forests, Government of
Assam, seeking upgradation of his downgraded entries for the period
2002-03, 2003-04, 2004-05, 2005-06 and 2006-07 and the entries, recorded
therein, were, eventually, upgraded to ‘Very Good’ by an order, issued, in
this regard.
9. Following the upgradation of entries of the petitioner, the Principal
Secretary, Government of Assam, addressed a communication, on 21-05-
2001, to the UPSC requesting the UPSC to hold Review Selection
Committee for reviewing the select list of the year 2008. Earlier thereto,
the petitioner as well as the 4th respondent had moved the Central
Administrative Tribunal, Guwahati Bench, seeking directions to be issued
to the UPSC to hold meeting of the Review Selection Committee for the
purpose of considering the cases of the petitioner and the 4th respondent
for promotion to the IFS. The present petitioner’s application gave rise to
Original Application (in short, ‘OA’) No. 211 of 2011, which was disposed
of by the learned Tribunal, on 26-09-2011, by directing the UPSC to hold
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Review Selection Committee within a period of three months from the
date of receipt of the order so passed by the learned Tribunal.
10. Pursuant to the order, so passed by the learned Tribunal, a Review
Selection Committee was constituted to review the select list of the year
2008. The Review Selection Committee accordingly convened its meeting
on 09-12-2011 and recommended the case of 4th respondent for promotion
to the IFS for the year 2008. This recommendation was put to challenge
by the present petitioner by making an application under Section 19 of
the Central Administrative Tribunals Act, 1985, at Guwahati, which gave
rise to Original Application (in short, ‘OA’) No. 64 of 2012. The said
application has, however, been dismissed by order, dated 05-09-2012.
Aggrieved by this order, dated 05-09-2012, dismissing his OA, the
petitioner has made the present writ petition, under Article 226 of the
Constitution of India, seeking issuance of appropriate directions.
11. We have heard Mr. N. Nath, learned counsel for the petitioner, and
Mr. D. C. Chakraborty, learned Central Government counsel, appearing
for respondent No. 2. We have also heard Mr. I. Hussain, learned Central
Government counsel, appearing for respondent No. 1, Mr. P. S. Deka,
learned Additional Senior Govt. Advocate, appearing for respondent No.
4, and Mr. D. K. Mishra, learned Senior counsel, appearing as amicus
curiae.
12. The first contention, raised on behalf of the petitioner, is that there
has been violation of Regulation 5(3AA) of the Indian Forest Service
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(Appointment by Promotion) Regulations, 1966 (which is being referred
to as the ‘Promotion Regulations’), inasmuch as the Review Selection
Committee, contends Mr. Nath, has not considered, in accordance with
law, the petitioner’s 5 years record of service immediately preceding the
year of selection, i.e., the year 2008.
13. Resisting the submission, so made, the respondents contend, in
tune with each other, that the Review Selection Committee did consider,
in accordance with the statutory obligations and the ‘guidelines’ issued, in
this regard, by the UPSC, i.e., respondent No.2, the records of the
petitioner’s service for the requisite periods.
14. Let us, now, determine the correctness of the rival submissions,
which have been made before us.
15. While considering the question as to whether the Review Selection
Committee has dealt with the petitioner’s case and considered his ACR(s)
for the requisite period of 5 years in accordance with the requirements of
law, what needs to be noted, at the very outset, is that a Review Selection
Committee has, nowhere, been defined under the Promotion Regulations
or under the ‘guidelines’, which have been issued by the UPSC. However,
Regulation 2(d) of the Promotion Regulations defines a ‘Committee’ to
mean the Committee set up in accordance with Regulation 3. In order,
therefore, to find out as to what a ‘Committee’ would, in the context of the
Promotion Regulations, mean, one is necessarily required to travel to
Regulation 3, which deals with the constitution of the Committee for
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making recommendation from the State Forest Service (which is being
referred to as, ‘SFS’). The relevant provisions of Regulation 3 read as
under:
“3. Constitution of the Committee to make selection-
(1) There shall be constituted for each of the Joint Cadres a Committee consisting of the Chairman of the Commission or where the Chairman is unable to attend, any other member of the Commission representing and the following other members namely:-
(a) For States other than Joint Cadres and Union Territories -
i) The Chief Secretary or Additional Chief Secretary;
ii) Secretary to the Government dealing with Forests;
iii) Principal Chief Conservator of Forests;
iv) A senior member of the Service not lower in rank than a Conservator of Forests; and
v) A nominee of the Government of India not below the rank of a Joint Secretary.
(aa) For Joint Cadre :-
i) Chief Secretaries to the Governments of the Constituent States.
ii) Chief Conservator of Forests of the Constituent States.
ii) A nominee of the Government of India not below the rank of a Joint Secretary.
(b) For Union Territories -
(1) Joint Secretary in the Ministry of Home Affairs dealing with Union Territories;
(2) Inspector-General of Forests or Dy. Inspector General of Forests,
(3) Chief Secretary of one of the Union Territories,
(4) A Senior member of the Service not lower than in rank than a Conservator of Forests:
Provided that the Central Government may, if deemed necessary, after consultation with the State Government concerned alter the composition of the Committee.
(2) The Chairman or the member of the Commission shall preside at all meetings of the committee at which he is present.
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(3) The absence of a member, other than the Chairman or member of the commission, shall not invalidate the proceedings of the Committee if more than half the members of the Committee had attended its meetings.”
16. From a bare reading of Regulation 3, it becomes clear that the
Selection Committee, in order to consider cases of promotion from State
Forest Service (i.e., ‘SFS’) to Indian Forest Service (i.e., ‘IFS’), has to be
constituted in terms of Regulation 3. As far as the procedures for
selection and preparation of Select list is concerned, the same have been
laid in Regulation 5. Mr. Nath, learned counsel, appearing for the
petitioner, is correct in contending that a Review Selection Committee is
nothing, but a Committee constituted under Regulation 3 of the
Promotion Regulations.
17. What logically follows from the above discussion is that a Review
Selection Committee, being a Committee constituted under Regulation 3,
has no option but to follow (same as a Committee constituted under
Regulation 3) the procedure laid down in Regulation 5 for the purpose of
making selection and for preparing select list of officers of the SFS to be
promoted to IFS. A Review Selection Committee, otherwise also, must
proceed to take a decision as regards selection as if it is considering a
given case afresh and for the first time. The support, sought to be
received, in this regard, by Mr. Nath, learned counsel, from the case of
Gurdial Singh Fiji vs. State of Punjab, reported in (1979) 2 SCC 368, and
UPSC vs. Hiranyalal Dev (AIR 1988 SC 1069), is not misplaced inasmuch
as the appellant, in Gurdial Singh Fiji’s case (supra), was not considered
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for promotion to IAS on the ground of adverse entry in his ACR(s) for the
period 1966-67 against which the appellant’s representation was pending
disposal. The Supreme Court held the non-consideration of the
appellant’s representation as illegal and directed reconsideration of the
appellant’s case by taking into consideration the Govt. decision on his
representation and his service records up to date. The relevant
observations, made by the Supreme Court, in Gurdial Singh Fiji’s case
(supra), read as under:
19. In matters of this nature, particularly when the Select lists have
to be prepared and reviewed from year to year, it becomes difficult
to work out the logical consequences of holding that the case of any
particular officer ought to be reconsidered. But, inevitably, for
reasons mentioned above, the case of the appellant shall have
to be considered afresh by the Selection Committee. How best
to do it has to be left to its wise discretion in the matter of details,
but in order to eliminate, insofar as one may, chances of yet another
litigation we ought to indicate the broad frame-work within which
the Committee should act and the preliminary steps which the
Government must take in order to facilitate the Committee’s task.
20. In the first place, the State Government shall consider and
dispose of within two months from today the representations made
by the appellant on January 23, 1969 and December 19, 1971 in
regard to the adverse report in his confidential roll, for the year
1966-67. We are hopeful that the High Court will cooperate with
the Government in the disposal of the representations. The
Selection Committee will, within three months thereafter, decide
whether the appellant should be included in the Select list as of
May 11, 1973. That question has to be decided in accordance with
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the relevant regulations by applying the test of merit and
suitability cum-seniority. For deciding the question of appellant’s
merit and suitability, the Selection Committee will take into
consideration the Government’s decision on his representations
and his service record up-to-date. If the Committee decides that he
is not suitable for inclusion in the Select list and, should therefore,
be superseded, it shall record its reasons for the proposed
supersession. If, on the other hand, the Committee decides to
include his name in the Select list, he will be entitled to rank in
that list in accordance with his seniority as of May 11, 1973
unless, in the opinion of the Committee, there is a junior officer of
exceptional merit and suitability who may be assigned a higher
place. The Selection Committee will review the list for 1973 in
accordance with these directions. The Union Public Service
Commission will thereafter be consulted in accordance with
the regulations. The Select list as finally approved by the
Commission will form the Select list of the members of the
State Civil Service.
(Emphasis is added)
18. The reference made by Mr. Nath, learned counsel for the petitioner,
to the case of Hiranyalal Dev (supra) is also not misplaced wherein the
appellant was not considered suitable for promotion to IPS due to some
adverse entries, which were not communicated to him. Subsequently, the
adverse entries were communicated and the same were expunged after
considering the representation of the appellant. The relevant
observations, appearing at para 5 and 9 of Hiranyalal Dev (supra), read
as under:
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“5. It cannot be gainsaid that the Selection Committee could not have
taken into consideration the adverse remarks entered in the records
which had not been communicated to Respondent 1, and in any case
could not have taken into consideration these remarks which were
subsequently set aside by the State Government. The legal effect of the
setting aside of the adverse remarks would be that the remarks must
be treated as non-existent in the eye of law. The Selection Committee
had, therefore, fallen in error in taking into account these adverse
remarks which in the eye of law did not exist and which could not
have been lawfully taken into consideration. However, the fact that the
Selection Committee erred in this behalf does not necessarily mean that
Respondent 1 should have been categorised or considered as “very good’ vis-
a-vis others who were also in the field of choice. How to categorise in the light
of the relevant records and what norms to apply in making the assessment are
exclusively the functions of the Selection Committee. The Tribunal could not
make a conjecture as to what the Selection Committee would have done or to
resort to conjecture as to the norms to be applied for this purpose. The proper
order for the Tribunal to pass under the circumstances was to direct the
Selection Committee to reconsider the merits of Respondent 1 vis-a-vis the
official who was junior to him and whose name was Shri Sardar Pradeep Kar.
Instead of doing so, the Tribunal has held that Respondent 1 should be
deemed to have been included in the impugned select list prepared in 1983, at
least in the place in the order of his seniority on the basis of the assessment of
his C.C. Rolls, and has issued a direction to appoint Respondent 1 with effect
from the date on which Shri Kar was appointed. The jurisdiction to make the
selection vested in the Selection Committee. The Selection Committee had
to make the selection by applying the same yardstick and norm as
regards the rating to be given to the officials, who were in the field of
choice by categorising the concerned officials as “outstanding”, “very
good”, “good” etc. This function had also to be discharged by the
Selection Committee by applying the same norm and tests and the
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selection was also to be made by the Selection Committee as per the
relevant rules. The powers to make selection were vested unto the Selection
Committee under the relevant rules and the Tribunal could not have played
the role which the Selection Committee had to play. The Tribunal could not
have substituted itself in place of the Selection Committee and made the
selection as if the Tribunal itself was exercising the powers of the Selection
Committee, as has been done which is evident from the passage extracted from
para 16 of the judgment:
“We have also gone through the C.C. Roll, of the two junior officers,
Respondents 11 and 12 for the same period of five years including 1982-
83. We are of the definite view that there is absolutely no reason after
expunction of the adverse remarks to hold that the applicant deserved a
lower classification than these two respondents, who were junior to him.”
The proper course to adopt was the course which was indicated by
this Court in Gurdial Singh Fijji v. State of Punjab wherein this
Court directed that the case of the appellant be considered afresh by
the Selection Committee indicating the broad framework within
which the Committee should act and the preliminary steps the
Government should take in order to facilitate the Committee’s task.
In State of Mysore v. Syed Mahmood a dispute about promotion of certain
officers had been raised. In writ petitions filed by the aggrieved officers the
High Court passed orders directing the State Government to promote them
from the respective dates on which respondents junior to them were
promoted. The orders passed by the High Court were set aside by this Court
and a direction was issued to the State Government to consider whether the
said officers should have been promoted on the relevant dates. It was held:
“The promotions were irregularly made and they were, therefore, entitled
to ask the State Government to reconsider their case. In the circumstances,
the High Court could issue a writ to the State Government compelling it to
perform its duty and to consider whether having regard to their seniority and
fitness they should have been promoted on the relevant dates when officers
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junior to them were promoted. Instead of issuing such a writ, the High Court
wrongly issued writs directing the State Government to promote them with
retrospective effect. The High Court ought not to have issued such writs
without giving the State Government an opportunity in the first instance to
consider their fitness for promotion in 1959.”
Xxx xxx xxxx
9. In place of the order quoted hereinabove we substitute an order in the
following terms viz.:
“The Selection Committee shall reconsider the impugned select list
prepared in 1983 as if it was deciding the matter on the date of the selection
on the footing that the adverse remarks made against Respondent 1 which
were subsequently set aside did not exist in the records and consider the
question as to whether he would have been appointed or Respondent 11 Shri
Sardar Pradeep Kar would have been appointed on the basis of the
categorization to which each of them was entitled having regard to the C.C.
Rolls (ignoring the adverse remarks against Respondent 1 which were
subsequently quashed) and pass appropriate orders in the light of the decision
taken on this point. If Respondent 1’s claim is accepted upon reconsideration
in the light of the aforesaid exercise, the order of appointment should provide
for his appointment with effect from the date on which he would have been
appointed if he was selected when the original selection was made in 1983 and
he should be given all the benefits. The Selection Committee shall complete its
exercise within two months from the date of this order. There will be no order
regarding costs.”
(Emphasis added)
19. Situated thus, it becomes clear that the role of a Review Selection
Committee is exactly the same as the Selection Committee and the
Review Selection Committee shall be treated as Body constituted under
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Regulation 3 for the purpose of carrying out the selection and making
recommendations of the officers of the SFS to be promoted to IFS.
20. In the light of what has been discussed above, let us, now, revert to
Regulation 5(3AA), which lays down as to how a Select Committee shall
proceed with the consideration of a case for promotion from SFS to IFS.
Regulation 5(3AA) reads, “The selection Committee shall classify the eligible
officers as ‘Outstanding’, ‘very good’, ‘good’ or ‘Unfit’, as the case may be,
on overall relative assessment of their service record.”
21. A Selection Committee, be the Committee constituted for the first
time to consider the cases of promotion or as a Committee, constituted for
the purpose of review of a case, or a number of cases for promotion, is, in
the light of Regulation 5(3AA), under statutory obligation to classify
eligible officers into four categories, as indicated above, namely,
‘Outstanding’, ‘very good’, ‘good’ or ‘Unfit’, as the case may be, on
overall relative assessment of their service records.
22. The term ‘service records’, we may hasten to point out, has not been
defined in the Promotion Regulations. The UPSC has, therefore, issued
‘guidelines’, which prescribe what service records would mean and signify.
The UPSC ‘guidelines’, issued in this regard, and contained in paragraph
2.3, read as follows:
“2.3 In accordance with Regulation 5(4) of the Promotion
Regulations, the Selection Committee has to 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
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(i.e., ACRs and the documents kept therein by the competent
authority). For making an overall relative assessment, the
Committee will not depend solely on the grading recorded by
the reporting/reviewing/accepting authority but will make
its independent assessment of the service records of the
eligible officers as per the procedure indicated below.”
(Emphasis supplied)
23. Coupled with the above, paragraph 4.1 of the UPSC ‘guidelines’
read as under:
“4.1 The Selection Committee will go through the records of
the eligible officers and make their assessment after
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 would take into account
orders regarding appreciation for the meritorious work done by the
concerned officers. Similarly it would also 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.”
(Emphasis supplied)
24. From what is embodied in paragraph 2.3 of the UPSC ‘guidelines’, it
clearly transpires that service records will mean not only the ACR(s) of a
candidate, but also the documents kept/maintained in connection
therewith by the competent authority and that the Committee,
constituted under Regulation 3, will not, in order to make overall relative
assessment, depend solely on the grading recorded by the reporting or
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the reviewing authority, but will make an independent assessment of the
service records of the eligible officers as per the procedure indicated by the
UPSC ‘guidelines’.
25. In terms of the UPSC ‘guidelines’, the Selection Committee, or the
Review Selection Committee, as the case may be, shall go through the
service records of each of the eligible officer with special reference to the
performance of the officers during the last 5 years immediately preceding
the year for which the select list is required to be prepared, and, upon
deliberations, make its own assessment of the candidate and record, in
the assessment sheet, the gradings, which it considers, in the light of
Regulation 5(3AA), as appropriate.
26. The UPSC’s ‘guidelines’ will clearly indicate that the service records
of each of the officers would have to be considered by the Selection
Committee with, of course special reference to the performance of the
officer during the last 5 years, immediately preceding the year for which
the select list is required to be prepared, and deliberate on the quality of
the officers and finally arrive at a classification to be assigned to each
officer in order to ensure objectivity for the purpose of evaluation and
assign accordingly any of the four gradings mentioned in Regulation
5(3AA), namely, ‘Outstanding’, ‘very good’, ‘good’ or ‘Unfit’.
27. ‘Deliberation’, according to Oxford Advanced Learner’s Dictionary,
6th Edition, means, ‘the process of carefully considering’ or ‘discussing’.
Chambers Twentieth Century Dictionary, 1979 Edition, defines
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‘deliberation’ as ‘act of deliberating, mature reflection’. According to
Webster’s Comprehensive Dictionary, Encyclopedic Edition, ‘deliberation’
means, ‘thoughtfulness and care in deciding or acting’.
28. In the light of what the word ‘deliberation’ means and convey, it
clearly follows, as rightly contended by Mr. Nath, learned counsel, that in
order to satisfy the test of ‘overall assessment’, there must be a ‘careful
consideration’ or careful discussion’ on the quality of the officers concerned
with regard the various attributes recorded in their respective ACR(s)
and, as such, deliberation or discussion must precede the assigning of
grading by the Selection Committee.
29. It is the admitted case of the UPSC that the petitioner was
categorized as ‘good’ on the basis of overall relative assessment of his
performance, as reflected under various columns of his ACR(s), the
ACR(s) being for the period from 2002 to 2003 and 30.09.2004 to
31.03.2005 and, on the basis of the assessment of the petitioner’s ACR(s)
for the said period of barely 1 ½ years, the petitioner was not
recommended for promotion.
30. Apart from the fact that the above averments of the UPSC, made in
its affidavit, has not been disputed or traversed by any of the other
respondents, including respondent No. 4, who is hereinafter referred to
as the ‘private respondent’, the minutes of the meeting of the Review
Selection Committee, constituted under Regulation 3, to review the select
list of 2008 and consider, amongst others, the cases of the petitioner and
Page 21
the private respondent is, in this regard, of great relevance. Para 3.1, which
contains the minutes of the meeting of the Review Selection Committee,
being extremely important, is reproduced below:
“3.1 The Committee were further informed that the Government
of Assam have, in compliance with separate orders of the Hon’ble
Tribunal and also based on their representations, forwarded the
upgraded ACRs of
(i) Shri Arup Kumar Das for the year 2002-03 from ‘Average’
to ‘good’ and for the period from 30.09.2004 to 31.03.2005
from ‘Average’ to ‘good’.
(ii) Shri R C Goswami for the period 2002-03, 2003-04, 2004-
05, 2005-06 and 2006-07 from ‘good’ to ‘very good’.
(iii) Shri Amrit Kumar Das for the period from 14.11.2007 to
12.03.2008 from ‘good’ to ‘very good’.”
31. Close on the heels of what paragraph 3.1 of the minutes of the
meeting of the Review Selection Committee, reproduced above, reflects,
paragraph 5.1 and 5.2, which relate to the present petitioner, and
paragraph 6.1 and 6.2, which relate to the private respondent, being
relevant for correct appreciation of the manner in which the Review
Selection Committee has dealt with the matter, are also reproduced
below:
“Shri Arup Kumar Das
5.1 The Review Committee first considered the case of Sh. Arup
Kumar Das. The Review Committee noted that the original Selection
committee has graded Sh. Arup Kumar Das as ‘good’ on an over-all
relative assessment of his service records.
Page 22
5.2 The Review Committee examined the records of Sh. Arup
Kumar Das upto the year 2006-07 for the Select list of 2008 as the crucial
date for reckoning the eligibility of officers is 01.01.2008. The Review
Committee took into consideration the upgraded ACRs of Sh. Arup
Kumar Das for the period mentioned in para 3.1 (i) above. On an overall
assessment of his performance as reflected under various columns of the
upgraded ACRs, the Review Committee graded Shri Arup Kumar Das as
‘good’. On the basis of this assessment, the Review Committee did not
recommend any change in the Select list of 2008 prepared on 08.12.2009
in respect of Sh. Arup Kumar Das.
Shri R. C. Goswami
6.1 The Review Committee next considered the case of Sh. R. C.
Goswami. The Review Committee noted that the original Selection
Committee has graded Sh. R. C. Goswami as “Good” on an over-all
relative assessment of his service records.
6.2 The Review Committee examined the records of Sh. R. C.
Goswami upto the year 2006-07 for the Select list of 2008 as the crucial
date for reckoning the eligibility of officers is 01.01.2008. The Review
Committee took into consideration the upgraded ACRs of Sh. R. C.
Goswami for the period mentioned in para 3.1 (ii) above. On an overall
assessment of his performance reflected under various columns of the
upgraded ACRs, the Review Committee graded Shri R. C. Goswami as
“Very Good”. On the basis of this assessment, the Review Committee
recommended his name for inclusion in the Select list of 2008 for
promotion to the IFS of Assam Meghalaya Joint Cadre (Assam segment)
and placed his name at Sl. No. 1A of the List prepared on 08.12.2009.”
32. If the contents of paragraphs 5.1 and 5.2, which relate to the service
records of the present petitioner, vis-à-vis paragraph 6.1 and 6.2, which
relate to the service records of the private respondent, are considered
Page 23
together in the light of what stands recorded in paragraph 3.1 (which we
have already quoted above), it leaves no room for doubt that that, so far
as the petitioner was concerned, what the Review Selection Committee
had considered was merely his upgraded ACR(s) for the period 2002-
2003 and for the period from 30.09.2004 to 31.03.2005, i.e., for the period
of 1 ½ years, whereby the downgrading of the petitioner’s ACR from
‘good’ to ‘Average’ was upgraded and restored to ‘good’ from ‘Average’.
As against this, the ACR(s) of the private respondent was considered for
the whole period of 5 years, namely, for the period from 2002 to 2003,
2003 to 2004, 2004 to 2005, 2005 to 2006 and 2006 to 2007 and, on the basis
of all these five years of ACRs, he (private respondent) was graded ‘very
good’ from ‘good’.
33. While, thus, the private respondent’s ACRs of all the 5 years,
immediately preceding the year of selection, had been considered, the
petitioner’s ACR of only for the period of 1 ½ years, as indicated above,
had been considered by the Review Selection Committee.
34. Situated thus, it is clear that the Review Selection Committee
committed two errors, namely, (i) it omitted to notice the fact that it was
under legal obligation to consider the ACRs of the petitioner as well as of
the private respondent for the entire period of 5 years, including that part
or portion of 5 years, where any change/changes, in the grading,
was/were recorded in the ACRs and (ii) the Review Selection Committee
completely ignored the fact that apart from upgradation of the ACRs of
Page 24
the petitioner, for the said period of 1 ½ years (i.e., for the period from
2002 to 2003 and for the period from 30.09.2004 to 31.03.2005), the
petitioner’s ACRs, for the period from 01.04.2004 to 29.04.2004 and
18.08.2005 to 05.01.2006, had been subsequently upgraded, as already
indicated above, by order, dated 16.09.2010, inasmuch as the performance
of the petitioner, for the period from 01.04.2004 to 29.09.2004 and also for
the period from 18.08.2005 to 05.01.2006 (which had gone unappraised),
came to be recorded, pursuant to the order, dated 16.09.2010, passed by
the Commissioner and Secretary, Environment and Forest, Government
of Assam, and the petitioner was, pursuant to the order, dated 16.09.2010,
assigned the grading ‘very good’ for the period from 01.04.2004 to
29.09.2004 and he (petitioner) was graded ‘Outstanding’ for the period
from 18.08.2005 to 05.01.2006.
35. To put it a little differently, the Review Selection Committee
considered, unlike the case of the private respondent, the petitioner’s
upgraded ACRs for the brief period of 1 ½ years (i.e., from 2002 to 2003
and 30.09.2004 to 31.03.2005), and did not consider the period, which had,
initially, been left unappraised and was, subsequently, assigned the
grading of ‘very good’ and ‘Outstanding’ pursuant to the order, dated
16.09.2010, aforementioned.
36. In short, the consideration of the petitioner’s case by the Review
Selection Committee suffers from infraction of Regulation 5(3AA) of the
Promotion Regulations inasmuch as the Review Selection Committee has
Page 25
not considered the entire service records of the petitioner anew for the
requisite period of 5 years immediately preceding the year of selection;
more so, when the Review Selection Committee has, it is obvious, not
taken into account at all the entries in the ACR(s) of the petitioner for the
earlier unappraised period from 01.04.2004 to 29.09.2004 and 18.08.2005
to 05.01.2006, and, thus, the consideration of the petitioner’s case by the
Review Selection Committee must be held to be in violation of the
mandates of the Regulation 5(3AA) and cannot, therefore, be sustained.
37. To put it a little differently, the Review Selection Committee’s
appraisal of the case of the petitioner suffers from omission to consider
the petitioner’s service records for the requisite period of 5 years in its
entirety inasmuch as the Review Selection Committee has considered
only the petitioner’s upgraded ACRs for the year 2002-2003 and for the
period from 30.09.2004 to 31.03.2005, but the Review Selection Committee
has omitted to consider the petitioner’s subsequently appraised service
records for the period from 01.04.2004 to 29.09.2004 and for the period
from 18.08.2005 to 05.01.2006.
38. The learned Tribunal, therefore, fell in serious error, in the case at
hand, in taking the view that the assessment of the petitioner’s service
record was properly done by the Review Selection Committee; whereas,
it is glaringly noticeable that the Review Selection Committee did not do
what it was assigned to do or obliged to do in terms of the Promotion
Page 26
Regulations and in the light of the ‘guidelines’, issued, in this regard, by
the UPSC.
39. Yet another ground on which the petitioner has impugned the
recommendations of the private respondent by the Review Selection
Committee and non-recommendation of his case for promotion by the
said Committee, in the light of the decision reached by the learned
Tribunal, is that during the period of 5 years immediately preceding the
year of selection, the appropriate authority had not recorded the various
entries in the ACRs of the petitioner. A chart, showing the authorities,
who had acted in the capacity of the Reporting, Reviewing and the
Accepting authorities, in the ACRs of the petitioner from the year 2002 to
2007, as embodied in the writ petition, is reproduced below:
YEAR REPORTING AUTHORITY
REVIEWING AUTHORITY
ACCEPTING AUTHORITY
2002-03 CCF PCCF PRINCIPAL
SECRETARY 1.4.03 to 30.7.03
--- COMMISSIONER & SECRETARY
23.9.03 to 31.3.04
CF CCF ---
1.4.04 to 30.9.04
CF CCF ---
30.9.04 to 31.3.05
CF CCF PCCF
1.4.05 to 17.8.05
CCF PCCF COMMISSIONER & SECRETARY
18.8.05 to 31.3.06
CF CCF ---
2006-07 CF CCF PCCF
Page 27
40. A cautious reading of what have been reproduced above would
show that the ACRs of the petitioner for the period 2002-2003 was written
by the Chief Conservator of Forests, reviewed by the Principal Chief
Conservator of Forests and accepted by the Principal Secretary,
Department of Environment and Forests; whereas, the ACR, pertaining to
the period 23.09.2003 to 31.03.2004, was written by Conservator of
Forests, reviewed by Chief Conservator of Forests and accepted by the
Commissioner & Secretary, and with regard to the petitioner’s ACR for
the period from 01.04.2005 to 17.08.2005, it was again the Chief
Conservator of Forests, who had acted as the Reporting authority, the
Reviewing and the Accepting authorities being Principal Chief
Conservator of Forests and the Commissioner and Secretary, Department
of Environment and Forests. However, for the period from 30.09.2004 to
31.03.2005, the Reporting authority was, once again, the Conservator of
Forests, the Reviewing authority was the Chief Conservator of Forests
and the Accepting authority was the Principal Chief Conservator of
Forests.
41. The question, therefore, which falls for consideration, is: Whether,
in the petitioner’s case, the Conservator of Forests could have acted as the
Reporting authority, or it was the Chief Conservator of Forest, who ought
to have been the Reporting authority?
42. While considering the question, posed above, we may refer to Rule
2(f) of the Assam Services (Confidential Rolls) Rules, 1990 (hereinafter
Page 28
referred to as the ‘1990 Rules’), which defines ‘Reporting authority’ as the
authority, who was, during the period for which the confidential report is
written, immediate superior to the employee and such other authority as
may be specifically empowered, in this behalf, by the Government.
Similarly, ‘Reviewing authority’ is defined by Rule 2(g) of the 1990 Rules to
mean the authority, who was, during the period for which the
confidential report is written, immediate superior to the Reporting
authority and such other authority as may be specifically empowered, in
this behalf, by the Government. Rule 2(a) of the 1990 Rules defines
‘Accepting authority’ as the authority, who was, during the period for
which the confidential report is written, immediate superior to the
Reviewing authority and such other authority as may be specifically
empowered, in this behalf, by the Government.
43. The petitioner, as has been pointed out, is presently serving as
Divisional Forest Officer (in short, ‘DFO’) and he, therefore, belongs to
the cadre of Deputy Conservator of Forest (in short, ‘DCF’). The
immediate superior of a DCF is the Conservator of Forests (in short, ‘CF’)
and, as such, only CF can initiate confidential reports of a DCF. Similarly,
the immediate superior of CF is the Chief Conservator of Forest (in short,
‘CCF’) and the immediate superior of CCF is the Principal Chief
Conservator of Forest (in short, ‘PCCF’). Accordingly, only CCF and
PCCF can act as the Reviewing and Accepting authority, respectively, in
respect of a DCF.
Page 29
44. However, in the case at hand, the ACR(s) of the petitioner were
reported/reviewed and accepted by authorities other than the authorities,
who were empowered and authorized by the Rules to do so.
Consequently, the ACR(s), prepared by such authorities, as indicated
hereinbefore, can not, rightly contends Mr. Nath, learned counsel for the
petitioner, form basis for making assessment of the merit of the
petitioner.
45. In support of his contention that the ACR(s), in respect of a DFO can
only be written by the CF, reviewed and accepted by CCF and PCCF,
respectively, Mr. Nath has also placed reliance on the case of T N
Godavarman vs. Union of India, reported in (2007) 15 SCC 273. The
relevant observations, made by the Supreme Court, in T N Godavarman
(supra), read as follows:
“22. For writing of the confidential reports, the Central
Government has, under Section 3 of the All India Services Act,
1951, framed All India Services (Confidential Rolls) Rules, 1970.
According to Rule 2(e), the “reporting authority” is defined as
follows:
2. (e) ‘reporting authority’ means the authority who was, during
the period for which the confidential report is written, immediately
superior to the member of the service and such other authority as
may be specifically empowered in this behalf by the Government;”
23. The “reviewing authority” is defined in Rule 2(f) as follows:
2. (f) ‘reviewing authority’ means the authority who was, during
the period for which the confidential report is written, immediately
Page 30
superior to the reporting authority and such other authority as may
be specifically empowered in this behalf by the Government;”
24. It seems that Rule 2(e) had been interpreted by the State
to mean that the confidential report of an officer could be written
by a person who is superior to him and also by such other officer
who may be specified in this behalf. In view of the latter portion of
the said Rule 2(e), the State Government has authorised officers of
service other than of the Forest Department to write the
confidential reports. In this manner, in effect, the administrative
control of officers belonging to the Forest Department is not within
the Department itself.
25. The aforesaid Rule 2(e) came up for consideration before this
Court in State of Haryana v. P.C. Wadhwa. While interpreting the
said Rule 2(e), this Court at p. 1035 observed as follows: (SCC pp.
606-07, para 5)
5. In this connection, it may be pointed out that it is not disputed
that the conjunction ‘and’ occurring in clauses (e), (f) and (a)
should be read as ‘or’. Under clause (e), the ‘reporting authority’
may be either immediately superior to the member of the service or
such other authority as may be specifically empowered in this
behalf by the Government. The expression ‘immediately superior’
obviously indicates that the reporting authority should be the
immediate superior officer in the same service to which the member
of the service belongs. The position is the same as in the cases of
‘reviewing authority’ and ‘accepting authority’. So, under the first
part of clause (e), the reporting authority of the respondent could be
a person who is immediately superior to him in the police service.”
26. It appears to us, and which is logical, that up to the officer of
the rank of Additional Principal Chief Conservator of
Forests the reporting authority has to be the immediately
superior officer within the Forest Department. For example,
Page 31
for the Assistant Conservator of Forests, the reporting authority
can only be the Divisional Forest Officer and for him the reporting
authority would be the Conservator of Forests for whom the
reporting authority has to be the Chief Conservator of Forests and
his reporting authority would be Additional Principal Chief
Conservator of Forests and lastly his reporting authority would be
the Principal Chief Conservator of Forests. Likewise the reviewing
authority would also be the person within the same Department. It
is only in case of the Principal Chief Conservator of Forests
that the reporting authority will be a person other than the
one belonging to the service because there is no one superior
to the Principal Chief Conservator of Forests within the
service. As far as he is concerned, the reporting authority would be
a person who is familiar with the work of Principal Chief
Conservator of Forests and that will be the person to whom he
reports and who is superior to him in rank and hierarchy.”
(Emphasis is added)
46. Mr. S. Sharma, learned counsel for the private respondent, has
contended that the petitioner’s ACR(s) for the period 2003-2004 was
reviewed by PCCF and accepted by the Principal Secretary, because
during the relevant period, the petitioner was in the Wild Life Wing of
the Department; whereas the ACR, pertaining to the period from
30.09.2004 to 31.03.2005, was reviewed by CCF and accepted by PCCF,
because during the period, in question, the petitioner had been working
in the Research and Education Wing of the Department.
47. Controverting the above submissions, made on behalf of the private
respondent, it has been submitted, on behalf of the petitioner, that the
Page 32
various wings, such as, Wild Life, Territorial, Social Forestry, Research
and Education, etc., are only wings of the Forest Department and the
immediate superior of a DCF shall always be CF irrespective of any wing
of the Department. A superior officer, in the context of a DCF, does not
differ from wing to wing and, hence, the whole contention of the private
respondent, raised, in this regard, has no foundation, erroneous and is
liable to be rejected.
48. It has been further contended, on behalf of the petitioner, that the
fact, that the contention of the private respondent has no foundation, falls
flat in view of the fact that the ACR of the petitioner, for the period
01.04.2005 to 17.08.2005 (i.e., the period immediately succeeding
30.09.2004 – 31.03.2005), was reviewed by the PCCF and accepted by the
Commissioner and Secretary in spite of the fact that during the said
period, the petitioner had been still working in Research and Education
wing of the Department concerned.
49. In the light of the 1990 Rules, the petitioner’s ACR(s) were clearly
not written by the appropriate authorities acting as Reporting authority,
Reviewing authority and Accepting authority. When the petitioner’s
ACR(s) have been written by the authorities other than competent
authorities, the assessment of the merit of the petitioner, the entries and
the gradings, which had been given by the authorities not competent to
act as the Reporting, Reviewing and Accepting authorities, were bad in
law and ought not to have been considered, while considering the
Page 33
petitioner’s case for promotion. These aspects of the case appear to have
escaped not only the notice of the Review Selection Committee, but also
of the learned Tribunal. On the basis of the ACR(s) written by the
authorities, who were not competent to writ the petitioner’s ACR(s),
question of consideration of a valid selection, for the purpose of
promotion, from SFS to IFS would not arise.
50. It is further contended, on behalf of the petitioner, that the ACR(s)
of the petitioner were not communicated to him, at any point of time by
the Committee, which was contrary to the law laid down by the Supreme
Court in Dev Dutt vs. Union of India, reported in (2008) 8 SCC 725.
Relying upon the case of Dev Dutt (supra), Mr. Nath, learned counsel for
the petitioner, correctly submits that, in terms of the decision, rendered in
Dev Dutt’s case (supra), all ACR(s) of the employees need to be
communicated to the employee concerned, within a reasonable period of
time, whether there is benchmark or not and non-communication of the
same is arbitrary and violative of Article 14 of the Constitution of India.
The relevant paragraphs of the decision of the Supreme Court, in Dev
Dutt’s case (supra), read as under:
“12. It has been held in Maneka Gandhi v. Union of India that
arbitrariness violates Article 14 of the Constitution. In our opinion, the
non-communication of an entry in the ACR of a public servant is
arbitrary because it deprives the employee concerned from making a
representation against it and praying for its upgradation. In our opinion,
every entry in the annual confidential report of every employee under the
State, whether he is in civil, judicial, police or other service (except the
Page 34
military) must be communicated to him, so as to enable him to make a
representation against it, because non-communication deprives the
employee of the opportunity of making a representation against it which
may affect his chances of being promoted (or get some other benefits).
Moreover, the object of writing the confidential report and making entries
in them is to give an opportunity to a public servant to improve his
performance, vide State of U.P. v. Yamuna Shanker Misra. Hence such
non-communication is, in our opinion, arbitrary and hence violative of
Article 14 of the Constitution.
13. In our opinion, every entry (and not merely a poor or adverse entry)
relating to an employee under the State or an instrumentality of the State,
whether in civil, judicial, police or other service (except the military) must
be communicated to him, within a reasonable period, and it makes no
difference whether there is a benchmark or not. Even if there is no
benchmark, non-communication of an entry may adversely affect the
employee’s chances of promotion (or getting some other benefit), because
when comparative merit is being considered for promotion (or some other
benefit) a person having a “good” or “average” or “fair” entry certainly
has less chances of being selected than a person having a “very good” or
“outstanding” entry.
17. In our opinion, every entry in the ACR of a public servant must be
communicated to him within a reasonable period, whether it is a poor, fair,
average, good or very good entry. This is because non-communication of
such an entry may adversely affect the employee in two ways: (1) had the
entry been communicated to him he would know about the assessment of
his work and conduct by his superiors, which would enable him to
improve his work in future; (2) he would have an opportunity of making a
representation against the entry if he feels it is unjustified, and pray for its
upgradation. Hence, non-communication of an entry is arbitrary, and it
has been held by the Constitution Bench decision of this Court in Maneka
Page 35
Gandhi v. Union of India that arbitrariness violates Article 14 of the
Constitution.
18. Thus, it is not only when there is a benchmark but in all cases that an
entry (whether it is poor, fair, average, good or very good) must be
communicated to a public servant, otherwise there is violation of the
principle of fairness, which is the soul of natural justice. Even an
outstanding entry should be communicated since that would boost the
morale of the employee and make him work harder.
36. In the present case, we are developing the principles of natural justice
by holding that fairness and transparency in public administration
requires that all entries (whether poor, fair, average, good or very good) in
the annual confidential report of a public servant, whether in civil,
judicial, police or any other State service (except the military), must be
communicated to him within a reasonable period so that he can make a
representation for its upgradation. This in our opinion is the correct legal
position even though there may be no rule/G.O. requiring communication
of the entry, or even if there is a rule/G.O. prohibiting it, because the
principle of non-arbitrariness in State action as envisaged by Article 14 of
the Constitution in our opinion requires such communication. Article 14
will override all rules or government orders.
37. We further hold that when the entry is communicated to him the
public servant should have a right to make a representation against the
entry to the authority concerned, and the authority concerned must decide
the representation in a fair manner and within a reasonable period. We
also hold that the representation must be decided by an authority higher
than the one who gave the entry, otherwise the likelihood is that the
representation will be summarily rejected without adequate consideration
as it would be an appeal from Caesar to Caesar. All this would be
conducive to fairness and transparency in public administration, and
would result in fairness to public servants. The State must be a model
Page 36
employer, and must act fairly towards its employees. Only then would
good governance be possible.
41. In our opinion, non-communication of entries in the annual
confidential report of a public servant, whether he is in civil,
judicial, police or any other service (other than the military),
certainly has civil consequences because it may affect his chances for
promotion or get other benefits (as already discussed above). Hence, such
non-communication would be arbitrary, and as such violative of
Article 14 of the Constitution.
(Emphasis is added)
51. A bare reading of the observations, made by the Supreme Court in
the above quoted paragraphs, in Dev Dutt’s case (supra), makes it clear
that the ACR(s), which have not been communicated to a person
concerned, can not be taken into consideration by any Selection
Committee, while examining his/her case for promotion. However, the
Supreme Court has laid down, in Dev Dutt’s case (supra), that in the
event of non-communication of the ACR(s) to the employee concerned
for any reason, such ACR(s) are to be communicated to the employee
concerned at the stage of consideration of his/her case for promotion
enabling the employee concerned to make representation against the
entry, which needs to be fairly considered following which his/her case
needs to be reconsidered by the Review Selection Committee. The ratio,
laid down by the Supreme Court, in Dev Dutt’s case (supra), squarely
applies to the case at hand inasmuch as the adverse entries, in the ACR(s)
of the petitioner, were not communicated to the petitioner before
Page 37
consideration of his case, for promotion, by the Review Selection
Committee.
52. From the decision, in Dev Dutt’s case (supra), it becomes
abundantly clear that making of any effective representation by an
employee requires communication of the entries, made in his/her ACR(s),
which would include not only the gradings, assigned to the employee, but
also the remarks made on various components of performance of the
employee concerned and consideration of the grading, assigned to him,
must precede submission of any representation, if made, by the employee
concerned so as to enable the employee concerned make effective
representation.
53. Though the learned Tribunal has proceeded on the premises that
the petitioner had been communicated the entries of his ACR(s), the
learned Tribunal, we find, has failed to notice that the entries, in some of
the ACR(s), had been obtained by the petitioner on the basis of the
application, made by the petitioner under the Right to Information Act,
2005, and the same had not been communicated to the petitioner by the
authorities concerned. The petitioner’s case, therefore, suffers from, in
fact, infraction of the law laid down, and the directions given, in Dev
Dutt’s case (supra).
54. Clearly, therefore, when the petitioner made his representation, on
19.07.2010, seeking review of his ACR(s), he had no idea as to what had
been made in his ACR(s) and this fact is clearly discernible if one cares to
Page 38
read the petitioner’s representation. The relevant portion of the
petitioner’s representation, dated 19.07.2010, read as follows:
“To,
The Commissioner and Secretary to the Govt. of Assam, Environment and Forest Department, Dispur, Guwahati-6.
Sub Thorough Review of my ACR’s for the Financial years 2000-2001, 2001-2002, 2002-2003, 2003-2004 and 2005-2006.
Ref. My earlier letter No. AKD/1/Confidential/7 dtd. 15/07/2010.
Respected Sir,
In continuation to my earlier letter No. referred above with
reference to the above subject I have honour to request you kindly to
review my ACR’s for the period (2000-2001, 2001-2002, 2002-2003,
2003-2004 and 2005-2006) as I suspect that during the years the ACR’s
written by respective Recording/Reviewing officers sent to UPSC and
MOEF was initiated in such a way that I should not be inducted into
Indian Forest Service as the grades given was more or less as an adverse
ACR. Because these years were crucial for the select list prepared by
UPSC for the years 2005, 2006, 2007 and got myself deprived in every
selection.
As referred above, since I did not have any access to the
confidential Rolls prepared by the authorities I had presumed that
everything recorded was with higher grades the good assessment,
as I have neither been informed verbally or nor intimated in
writing regarding any poor performance in any form for the years
stated above also substantial evidence if there was any to improve
my skills for getting better grades which was a systematic way of
spoiling my career. But now I have realized that the ACRs prepared
during the years referred above were written in casual and superficial and
without proper weightage in upgraded form which led to debar me from
selection to the Indian Forest Service.
Page 39
Therefore, I request you humbly to get my ACRs properly
Reviewed and Rectified so that I may be considered to be included to the
IFS selection and get natural justice from your end as I have still faith and
confidence in your abilities so that I may continue with a better zeal in the
remaining part of my service career.
Yours faithfully, s/d— (A. K. Das), D.F.O, Govt. T.T.S. Plant Division Makum, Tinsukia”
(Emphasis is added)
55. As the communication of the entries in the ACR(s) is, in the light of
the decision, in Dev Dutt’s case (supra), sine qua non in order to enable
the employee concerned make effective representation, it is clear that the
petitioner did not have any idea, on the date of making of the
representation, i.e., 19.07.2010, about the fact that the entries, made in his
ACR(s), including the gradings awarded to him, were not adverse in
nature inasmuch as any grading, assigned to an officer, in the light of
Regulation 5(3AA), would be treated, in the light of the decision, in Dev
Dutt’s case (supra), as an adverse entry. In fact, suspecting that his
ACR(s) had not been properly recorded, the petitioner had asked for the
review thereof. As the entries had not been communicated to the
petitioner before the petitioner had made the representation, the learned
Tribunal ought to have held that the petitioner was denied the right to
make effective representation against the various entries, made in his
ACR(s), during the past 5 years, in question, and the petitioner was,
therefore, seriously prejudiced.
Page 40
56. We consider it incumbent upon us to point out, with regard to the
above, that the personal hearing, which had been afforded to the
petitioner on his representation, dated 19.07.2010, aforementioned, did
not cure the incurable defect of non-communication of the entries in the
ACR(s) to the petitioner in terms of the decision in Dev Dutt’s case
(supra). It would be idle for the authority concerned to hear an employee
if he is not communicated the entries made in his ACR(s).
57. In support of his submission that the decision, in Dev Dutt’s case
(supra), covers the case of the petitioner, Mr. N. Nath, learned counsel for
the petitioner, contends that a judicial pronouncement, on an issue of
law, is always retrospective in operation unless the decision itself makes
the operation of the law, so pronounced, prospective. In fact, prospective
laying down of a law is a device innovated by the Supreme Court to
avoid reopening of settled issues and multiplicity of proceedings. In Dev
Dutt’s case (supra), the Supreme Court, in its own wisdom and
discretion, did not make its operation prospective and, accordingly, the
ratio, laid down in Dev Dutt’s case (supra), could only be applied
retrospectively. Mr. Nath, learned counsel, further contends, and rightly
so, that even assuming that the law, laid down in Dev Dutt’s case
(supra), is prospective, the same would still apply to the present case
inasmuch as Dev Dutt’s case (supra) was decided on 12th May, 2008, and
the Selection Committee, in the case at hand, met on 08.12.2009 and the
Review Selection Committee met on 09.12.2011.
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58. Controverting the finding of the learned Tribunal, that the ACR(s)
had been duly communicated to the petitioner and that on the basis of
such communicated ACR(s), the petitioner had filed representation,
dated 19.07.2010, Mr. Nath, learned counsel for the petitioner, has also
pointed out, with great justification, that this finding of the learned
Tribunal is wholly erroneous inasmuch as the petitioner’s representation
itself shows that he was not privy to his ACR(s) at the time of filing of his
representation and that the finding of the learned Tribunal seems to have
been influenced by the fact that the petitioner had annexed a few ACR(s)
to his representation in order to substantiate his claims, but the learned
Tribunal ought to have taken note of the fact that the petitioner had
obtained the copies of his ACR(s) under the Right To Information Act,
2005. Further-more, the fact that the petitioner came to know about the
downgrading of the entry, in his ACR(s), from ‘good’ to ‘Average’ for the
period 2002-2003 in April, 2010, only is, in itself, a testimony of the fact
that the ACR(s) of the petitioner had never been communicated to him.
59. While considering the rival submissions with regard to the non-
communication of the entries in the ACR(s) to the petitioner, it is
noteworthy that the respondents/authorities concerned did neither file
any written statement before the learned Tribunal nor have they filed any
affidavit, before this Court, controverting the contentions of the petitioner
regarding non-communication of the entries in his ACR(s) to him.
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60. We deem it apposite to point out, at this juncture, that the scope of
judicial review is limited in matters of selection. However, it is
incumbent and obligatory, on the Courts and the Tribunals, to interfere,
when the process of assessment and recommendation is vitiated by mala
fide, or bias, or violation of the statutory rules and regulations, or when
the process of assessment suffers from arbitrariness or from error
apparent on the face of the record. Reference may be made, in this
regard, to the case of M V Thimmaiah vs. UPSC & Ors, reported in
(2008) 2 SCC 119, wherein the Supreme Court held as under:
“21. Now, comes the question with regard to the selection of the
candidates. Normally, the recommendations of the Selection Committee
cannot be challenged except on the ground of mala fides or serious violation of
the statutory rules. The courts cannot sit as an Appellate Authority to
examine the recommendations of the Selection Committee like the
court of appeal. This discretion has been given to the Selection
Committee only and courts rarely sit as a court of appeal to examine
the selection of the candidates nor is the business of the court to examine each
candidate and record its opinion.”
(Emphasis is added)
61. We may also refer to the case of Union of India vs. A K Narula,
reported in (2007) 11 SCC 10, wherein the Supreme Court held, in
paragraph 15, as under:
“15. The ‘guidelines’ give a certain amount of play in the joints to DPC
by providing that it need not be guided by the overall grading recorded in
CRs, but may make its own assessment on the basis of the entries in CRs.
DPC is required to make an overall assessment of the performance of each
candidate separately, but by adopting the same standards, yardsticks and
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norms. It is only when the process of assessment is vitiated either
on the ground of bias, mala fides or arbitrariness, that the
selection calls for interference. Where DPC has proceeded in a fair,
impartial and reasonable manner, by applying the same yardstick and
norms to all candidates and there is no arbitrariness in the process of
assessment by DPC, the court will not interfere (vide SBI v. Mohd.
Mynuddin, UPSC v. Hiranyalal Dev and Badrinath v. Govt. of T.N.).
The Review DPC reconsidered the matter and has given detailed reasons
as to why the case of the respondent was not similar to that of R.S. Virk. If
in those circumstances, the Review DPC decided not to change the
grading of the respondent for the period 1-4-1987 to 31-3-1988 from
“good” to “very good”, the overall grading of the respondent continued to
remain as “good”. There was no question of moving him from the block of
officers with the overall rating of “good” to the block of officers with the
overall rating of “very good” and promoting him with reference to DPC
dated 13-6-1990. In the absence of any allegation of mala fide or bias
against DPC and in the absence of any arbitrariness in the manner in
which assessment has been made, the High Court was not justified in
directing that the benefit of upgrading be given to the respondent, as was
done in the case of R.S. Virk.”
(Emphasis is added)
62. When considered as a whole, what emerges from the above
discussion is that fairness is an essential ingredient of all administrative
actions including a selection process. We may refer, in this regard, to the
case of National Institute of Mental Health and Neuro Sciences –vs- Dr.
K. Kalyana Raman and Others, reported in (1992) Supp (2) SCC 481,
wherein it has been held that the function, performed by a Selection
Committee, is administrative in nature.
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63. In the present case, therefore, it is imperative that the review
selection be fair and fairness demands that the Review Selection
Committee follows the procedure in letter and spirit as laid down in
Regulation 5(3AA) of the Promotion Regulations. Strangely enough,
however, the Review Selection Committee acted, in the present case,
mechanically without even realizing that it was not considering, contrary
to the requirements of Regulation 5 (3AA), the petitioner’s ACRs of 5
years immediately preceding the year of selection. The Selection
Committee also failed to note that the petitioner’s ACR(s) had been
written substantially by persons, who were not competent to act as
Reporting, Reviewing and/or Accepting authorities. The Review
Selection Committee further did not question and/or try to find out if the
adverse entries, in the ACR(s) of the petitioner, (in the light of the
decision, in Dev Dutt’s case (supra), which, on the date of consideration
of the petitioner’s case by the Review Selection Committee, held the
field), had been communicated to the petitioner or not. Even the learned
Tribunal has completely failed to note that the petitioner had not been
communicated, contrary to the decision, in Dev Dutt’s case (supra), the
entries in the ACR(s) of the requisite period of 5 years in order to enable
him to make effective representation against the entries, which were
injurious to the consideration of the petitioner’s case for promotion.
64. Because of what have been discussed and pointed out above, we
have no hesitation in holding that the impugned review, which the
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Review Selection Committee had conducted, was contrary to law and all
the issues, raised by the petitioner and discussed by us above, need to be
addressed by the State respondents, in general, and the UPSC, in
particular.
65. Before, however, we close the discussion on the case, which the
petitioner has set up, and issue necessary direction(s), we need to point
out that in the light of the amendments, which the Indian Forest Service
(Appointment by Promotion) Regulations, 1966, (which we have been
referring to as the Promotion Regulations), underwent by Notification,
dated 20.04.1966, the ‘guidelines’, which have been issued by the UPSC
and which have been the subject of discussion in this writ petition, need a
review by the UPSC, particularly, with regard to the system of
‘interpolation’ of the names in the select list after a review takes place.
66. In order to make explicit what have been indicated above, we must
reiterate that the Promotion Regulations provide for appointment of
members of the State Forest Service to the Indian Forest Service by
promotion. Regulation 5 of the said Regulations provides for preparation
of a list of suitable officers. While Regulation 5(2) provides for zone of
consideration and eligibility of the members of the State Forest Service,
Regulation 5(3-AA) and Regulation 5(4) provide for the relative
assessment of merit and preparation of merit wise list respectively.
Regulation 5(3AA) and Regulation 5(4) being relevant, are reproduced
below:
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“5. Preparation of a list of suitable officers :- (1) *** *** *** *** *** ***
(2) *** *** *** *** *** *** 3(A) *** *** *** *** *** *** 3(AA) The Selection Committee shall classify the eligible officers as 'Outstanding', ‘good’, ‘very good’ or 'Unfit' , as the case may be, on all relative assessment of their service records. (4) The list shall be prepared by including the required number of
names, first from amongst 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 the names inter-se within each category shall be in the order of their seniority in the State Forest Service.
Provided that the name of an officer so included in the list shall be treated as provisional if the State Government withholds the integrity certificate in respect of such an officer or any proceedings, departmental or criminal, are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government. Provided further that while preparing year-wise select lists for more than one year pursuant to the second proviso to sub-regulation (1), the officer included provisionally in any of the select list so prepared, shall be considered for inclusion in the select list of subsequent year in addition to the normal consideration zone an din case he is found fit for inclusion in the suitability list for that year on a provisional basis, such inclusion shall be in addition to the normal size of the select list determined by the Central Government for such year.
Explanation I : The proceedings shall be treated as pending only if a charge-sheet has actually been issued to the officer or filed in a Court, as the case may be
Explanation II : The adverse thing which came to the notice of the State Government rendering him unsuitable for appointment to the service shall be treated as having come to the notice of the State only if the details of the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential.
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(5) Omitted.”
(Emphasis added)
67. A careful perusal of the Regulations reveals that Regulation 5(2),
prior to its amendment by Notification No. 11039/2/76 AIS (I)-G, dated
20.04.1976, provided that merit and suitability in all respect with due
regard to seniority shall be the criterion for the selection to the Indian
Forest Service. The identical unamended Regulations of the Indian
Administrative Services (Appointment by Promotion) Regulations, 1955,
as quoted in paragraph 5 of the decision rendered in Union of India
versus M. L. Kapoor, reported in (1973) 2 SCC 836, are reproduced
below:
“5. *** *** ***
5. Preparation of a list of suitable officers.—(1) The Committee shall prepare a list of such members of the State Civil 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 Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of the preparation of the list in the posts available for them under Rule 9 of the Recruitment Rules or 10 per cent of the senior duty posts borne on the cadre of the State or group of States whichever is greater:
Provided that, in the year ending on 31st December, 1969, the maximum limit, imposed by this sub-regulation, may be exceeded to such extent as may be determined by the Central Government in consultation with the State Government concerned.
(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 Service:
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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.
…………………………………………..….”
(Emphasis is added)
68. The decision, in M.L. Kapoor’s case (supra), shows that according
to the un-amended Regulation 5 of the Indian Administrative Service
(Appointment by Promotion) Regulation, 1955, promotion ought to have
been, ordinarily, in terms of seniority unless any junior officer, in the
opinion of the Selection Committee, constituted by the UPSC, was found
to be of exceptional merit and suitability inasmuch as such a junior
officer, on the basis of his exceptional merit and suitability, could be
placed, rather, ought to have been placed, in the select list, at a position
higher than that of an officer, who might have been senior to the junior
officer concerned.
69. It is pointed out by Mr. D.K. Mishra, learned Amicus Curiae, that
the expression ‘merit cum suitability with due regard to seniority’, was
considered by a learned Single Judge of this Court in Ramen Ch. Kalita
Vs. State of Assam, reported in 2003 (3) GLT 369. The learned Single
Judge, relying on the decision, rendered in M.L. Kapoor (supra),
observed and held, at paragraph 10, as follows:
“ ( 10 ) In the light of the above discussions, the parameters applied while
making the impugned selection, do not appear to conform to the principle
of merit and suitability with due regard to seniority as prescribed by the
rules in force. The correct meaning of the expression, "merit and
suitability with due regard to the seniority", having regard to the context
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of the Rules in force and keeping in mind the earlier Rules holding the
field, would be that though the criteria of merit and suitability with due
regard to seniority is essentially a merit based criterion, seniority cannot
altogether be ignored and has to be considered parallely along
with merit while determining the eligibility of a candidate for his
inclusion in the select list. Though it would not be the duty of the court
to lay down the exact modalities to cover selection by application of said
criteria, it may be apposite to observe that out of the total marks
earmarked for assessment, say out of 100 marks, a particular percentage
can be assigned to merit and the remaining percentage to seniority. The
percentage prescribed for merit must necessarily be higher than the
percentage prescribed for seniority, as this court has already held that the
expression in question convey primarily a merit based assessment. What
marks should be given to seniority can also be worked out by taking into
account each year of completed service and on that basis the necessary
fusion between merit and seniority can be reached. Having reached the
aforesaid conclusion, this court cannot but hold that the parameters
applied in the selection on 23.7. 2002 do not conform to what was
required to be followed by applying the principle of "merit and suitability
with due regard to the seniority". The impugned selection and the
consequential promotion order dated 19. 9. 2002 therefore, will have to be
set aside, which I hereby do.”
(Emphasis is added)
70. It is submitted by the learned Amicus Curiae, with great
justification, that Sarat Kumar Dash v. Biswajit Patnaik, reported in 1995
Suppl. (1) SCC 434, was not placed before the learned Single Judge in
Ramen Ch. Kalita (supra). In the case of Sarat Kumar Dash (supra), the
expression ‘merit cum suitability with due regard to seniority’ fell for
consideration. The argument put forward by the counsel for the appellant
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was accepted by the Supreme Court, in Sarat Kumar Dash (supra), that
even in case of merit cum suitability with due regard to seniority, seniority has
no role to play, if the junior is more meritorious. The relevant portion of
the decision, in Sarat Kumar Dash (supra), runs as under:
“5. It is contended by Shri P.P. Rao, the learned Senior Counsel for the
appellants that the Tribunal has committed grievous error in placing
reliance on the decision of this Court in Union of India v. Mohan Lal
Capoor. Therein, unamended Rule 5(2) of the statutory rules provides that
in case of supersession of the officer of the police service of the State, the
PSC was required to record reasons. Under those circumstances, this
Court has directed that recording of reasons was necessary. He further
contends that in the judgment itself, this Court held that in case of
“merit-cum-suitability” with due regard to seniority, the principle
of seniority has no role to play and the ratio therein was not
properly understood by the Tribunal. We find force in the contention.
6. It is seen that the Government, in the absence of statutory rules, have
applied, by administrative order, the principle of “merit-cum-suitability
with due regard to seniority”. It is settled law that in case of
promotion to the posts of higher cadre, it has always been the
settled criteria applied by the Governments is “merit-cum-
suitability with due regard to seniority” or “merit and ability” but
not ‘seniority’ or “seniority-cum-suitability”. In fact, this question
was considered by PSC, as stated earlier, before its evaluation of
the respective merits. They secured the rules in the comparable
services of the State where the principle of “merit-cum-suitability
with due regard to seniority” is the statutory rule and thereby, the
PSC had accepted the recommendation of the Government to apply the
above rule to adjudge the relative merits of the candidates and in fact they
did so apply.
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7. In Kapoor case, this Court has stated with regard to the principle thus:
(SCC p. 856, para 37)
“[W]hen Regulation 5(2) says that the selection for inclusion in the
list shall be based on merit and suitability in all respects with due
regard to seniority, what it means is that for inclusion in the list,
merit and suitability in all respects should be the governing
consideration and that seniority should play only a secondary role.
It is only when merit and suitability are roughly equal that
seniority will be a determining factor, or if it is not fairly possible
to make an assessment inter se of the merit and suitability of two
eligible candidates and come to a firm conclusion, seniority would
tilt the scale. But, to say, as the High Court has done, that seniority
is the determining factor and that it is only if the senior is found
unfit that the junior can be thought of for inclusion in the list is,
with respect, not a correct reading of Regulation 5(2). I do not
know what the High Court would have said had Regulation 5(2)
said: “Selection for inclusion in the select list shall be based on
seniority with due regard to merit and suitability”. Would it have
said that the interpretation to be put upon the hypothetical sub-
regulation (2) is the same as it put upon the actual sub-regulation?
8. In case of merit-cum-suitability, the seniority should have no
role to play when the candidates were found to be meritorious and
suitable for higher posts. Even a junior most man may steal a
march over his seniors and jump the queue for accelerated
promotion. This principle inculcates dedicated service, and accelerates
ability and encourages merit to improve excellence. The seniority would
have its due place only where the merit and ability are approximately
equal or where it is not possible to assess inter se merit and the suitability
of two equally eligible competing candidates who come very close in the
order of merit and ability. Under those circumstances, the seniority will
play its due role and calls it in aid for consideration. But in case where the
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relative merit and suitability or ability have been considered and
evaluated, and found to be superior, then the seniority has no role to play.
In our view the PSC has evolved correct procedure in grading the officers
and the marks have been awarded according to the grading. It is seen that
the four officers have come in the grading of ‘B’. In consequence, the PSC
had adopted the seniority of the appellants and Panda in the lower cadre
in recommending their cases for appointment in the order of merit.”
(Emphasis is added)
71. What further follows from the above discussion is that contrary to
what has been decided in Ramen Ch. Kalita (supra), when determination
of relative assessment of merit of the aspiring candidates is sine qua non
for selection, the seniority shall have a role only when the merit is equal
or else, seniority will not permit promotion of a senior, who is less
meritorious than his junior.
72. When we revert to the Promotion Regulations, particularly,
Regulations 5(3AA) and 5(4), what clearly surfaces is that having
classified eligible officers of the State Forest Service as ‘Outstanding,
‘Very Good’ or Good’, in terms of the provisions of Promotion
Regulation 3(AA), the Selection Committee, since after the amendments
of 1976, is duty bound to prepare a select list in terms of Regulation 5(4),
which lays down to the effect that keeping in view the requirement of
number of names, the Selection Committee shall, first, include, in the
select list, the names of those officers, who had been finally classified as
‘Outstanding’ and, then, select list shall contain the name of those, who
may have been classified as ‘Very Good’ and, thereafter, from amongst
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those similarly classified as Good have to be included in terms of their
inter se seniority in the State Forest Service.
73. Thus, Regulation 5(4) makes it abundantly clear that when a junior
officer of a State Forest Service is classified as ‘Outstanding’, he will,
while receiving promotion to the Indian Forest Service, supersede his
senior if his senior happens to be classified as ‘Very Good’ or ‘Good’. To
put it crisply and in precise terms, Regulation 5 makes it the duty of the
UPSC to ensure that promotion from the State Forest Service to the Indian
Forest Service is based on merit alone unless merit of the senior and
junior stand on the same footing, for, the senior, in such a case, would
retain his seniority in the Indian Forest Service; but, in a given case,
when a junior is found to be more meritorious than his senior, then, the
junior shall steal march over his senior.
74. What is, now, necessary to note is that Regulation 5 (1) of the
Promotion Regulations provides for preparation of a list of suitable
officers requiring the Central Government to decide, in consultation with
the State Government concerned, the number of members of the State
Forest Service to be included in the select list with a rider that such
numbers shall not exceed the number of substantive vacancies as on the 1st
day of January of the year on which the meeting is held.
75. Regulation 5(2) of the Promotion Regulations provides for zone of
consideration. According to Regulation 5(2), the number of the members
of the State Forest Service to be considered for promotion shall be three
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times the number of vacancies determined under Regulation 5 (1).
Normally, the zone of consideration is meant for the purpose of giving a
choice of better officers for promotion and it is for this reason that the
selection is based on merit by classifying the officers into the categories of
‘Outstanding”, ‘Very Good’ and ‘Good’ on the basis of comparative
assessment of their inter se merit. When a Review Selection Committee is
held, for the reason that an adverse remark has been set aside by the
Court in respect of the concerned officer or the downgrading of an
officer’s ACRs has been found to be illegal and other similar
circumstances, the Review Selection Committee must consider afresh the
case of such officer alongwith the cases of all other already promoted
officers, with reference to the date on which the cases of other officers
were considered, because there may be a case, wherein as a result of
setting aside the adverse entry or the downgrading of the ACR, an officer
may displace or push down another officer to occupy the latter’s place in
the merit list and if such a situation arises, the last person, in the final
select list, shall have to make way for the more meritorious officer
inasmuch as the list of suitable officers, as contemplated by Regulation 5
(1), cannot exceed the number of substantive vacancies of a given calendar
year.
76. Logically speaking, therefore, on review, promoting an officer to
the Indian Forest Service (who, upon review, is found fit to be promoted
to the Indian Forest Service from State Forest Service) cannot be allowed
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to usurp or fill up the future vacancies of the next year. The ‘guidelines’,
issued by the UPSC, if found contrary to the scheme of promotion so
envisaged by the Promotion Regulations, cannot bear scrutiny of law.
77. The UPSC has issued ‘guidelines’ for preparation of the list of
suitable officers by Selection Committee for promotion to the Indian
Forest Service. Though the said ‘guidelines’ are not under challenge, it is
clear that the ‘guidelines’, for review, are not in conformity with the
Promotion Regulations. For example, it has been provided, in the said
‘guidelines’, at paragraph 9, as follows:
“9…… In the event, the State Government certifies that there is no
material change in the service records of the officer in the relevant
years, the Review Committee may not change the grading of the
officer already assigned by the earlier Committee. In exceptional
circumstances, in case the Selection Committee recommends any
change in the grading, specific reasons for the change should be
appropriately recorded by the Review Committee in the minutes.”
78. The above ‘guidelines’ place the State Government in the shoes of
the Selection Committee to decide whether material changes have, or
have not, occurred in the ACR following its review by removing the
illegalities, though it is essentially for the Review Selection Committee to
examine the reviewed ACR of the officer concerned and, then, grade such
an officer as ‘Outstanding’, ‘Very Good’ or ‘Good’ or ‘Unfit’ as has been
provided by Regulation 5(4) of the Promotion Regulations.
79. The UPSC’s ‘guidelines’ further provide, in paragraph H.10, for
“Interpolation of names in the select list after review”. We have
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already pointed out that appointment by promotion, in terms of the
Promotion Regulations, is based on merit inasmuch as the Selection
Committee is required, under the Promotion Regulations, to categorize
the officers as ‘Outstanding’, ‘Very Good’ and ‘Good’ and, thereafter, to
prepare merit list in the manner prescribed under Regulation 5(4), which
we have already discussed above.
80. If an occasion, therefore, arises for holding a Review Selection
Committee and, upon review, the officer is classified as ‘Outstanding’ or
‘Very Good’ and if he is required to be accommodated in the list of
promotion, which may have been prepared for a given calendar year, the
officer shall have to be placed at an appropriate place according to his
merit in the select list, which already existed. The effect of placement of
such an officer, at an appropriate place, in the select list, will have
cascading effect of pushing down the candidates in the select list and,
obviously, the candidate, having the least merit, at the end of the list, will
have to make way for better candidate.
81. Hence, there is no question of exceeding, by way of interpolation,
statutory limit of the size of the select list prepared under the Regulation
5(1) of the Promotion Regulations and, consequently, there is no room for
doubt that there can be any interpolation of the names in the select list after
review, for, the select list would, otherwise, exceed the number of
substantive vacancies, which might have occurred in a given year.
However, as the UPSC guidelines, with regard to interpolation of names in
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the select list after review, are not under challenge, in the present writ
petition, we refrain from interfering with the said guidelines making it
clear that it is, nonetheless, duty of the UPSC to ensure that their
guidelines are in tune with the amended provisions of the Promotion
Regulations.
82. In the result and for the reasons discussed above, this writ petition
succeeds. The impugned order, dated 05.09.2012, passed by the learned
Tribunal, the recommendations made by the Review Selection
Committee, in its meeting, dated 09.12.2011, as well as the promotion of
respondent No. 4 to the Indian Forest Service are hereby set aside.
Respondent No. 2 is hereby directed to hold a meeting of the Review
Selection Committee to consider the petitioner’s case for promotion to the
Indian Forest Service on the basis of all the relevant ACRs of the
petitioner vis-à-vis all the relevant ACRs of the respondent No. 4.
83. With the above observations and directions, this writ petition
stands disposed of.
84. No order as to costs.
JUDGE JUDGE
Dutt/rk