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Thursday, July 31, 2014

Service matter - Regulation 5(4) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 - for promotion to the Indian Administrative Service - Dropping disciplinary proceedings against the 1st respondent was recommended for promotion and was selected pending case in Central Tribunal - Central Tribunal allowed the O.A. - High court reversed the same - Apex court held that the State Government misled the UPSC which resulted in wrong assessment of service records of 1st respondent in violation of Regulation 5(4) read with Regulation 6 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955. -The Tribunal noticed that the State Government dropped the charges against the 1st respondent without giving detailed reasons for such action. Considering the same the Tribunal held that the State Government failed to furnish the valid reasons for dropping charges and for subsequent issuance of integrity certificate to the 1st respondent. For the said reason theTribunal held that the action on the part of the State is a case of hasty decision.-The High Court failed to appreciate the guidelines dated 4th April, 2007 issued by the State Government with regard to the ACR and wrongly accepted the stand of the respondents that invalid ACRs were not to be considered. The High Court also exceeded its jurisdiction in discussing the charges framed against the 1st respondent and in justifying the grounds for dropping the charges, though it was not disclosed by the State Government. and set aside the impugned judgment and order dated 8th July, 2013 passed by the High Court in Writ Petition No.5508 of 2013, upheld the order passed by the Central Administrative Tribunal dated 18th February, 2013 with direction to the respondent(s) to reconsider the name of the appellant viz-a-viz 1st respondent for promotion to the post of Indian Administrative Service against the vacancies for the year 2009 = CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2014 (arising out of SLP(C)No.26223 of 2013) G. MOHANASUNDARAM … APPELLANT VERSUS R. NANTHAGOPAL AND ORS. … RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41776

   Service matter - Regulation 5(4)  of  the  Indian  Administrative  Service  (Appointment  by  Promotion) Regulations,  1955 - for  promotion   to   the   Indian Administrative Service - Dropping disciplinary proceedings against the  1st  respondent was recommended for promotion and was selected pending case in Central Tribunal - Central Tribunal allowed the O.A. - High court reversed the same - Apex court held that  the   State Government misled the UPSC which resulted in  wrong  assessment  of  service records of  1st  respondent  in  violation  of  Regulation  5(4)  read  with Regulation  6  of  the  Indian  Administrative   Service   (Appointment   by
Promotion) Regulations, 1955. -The Tribunal noticed that the State  Government  dropped  the  charges against the 1st respondent without giving detailed reasons for such  action. Considering the same the Tribunal held that the State Government  failed  to furnish the valid reasons for dropping charges and for  subsequent  issuance of integrity certificate to the 1st respondent.  For  the  said  reason  theTribunal held that the action on the part of the State is a  case  of  hasty
decision.-The High Court failed to appreciate the guidelines  dated  4th  April, 2007  issued by the State Government with regard  to  the  ACR  and  wrongly accepted the stand of the respondents that  invalid  ACRs  were  not  to  be considered. The High Court also exceeded its jurisdiction in discussing  the charges framed against the 1st respondent and in justifying the grounds for dropping the charges, though it was not disclosed by the State Government. and set  aside  the  impugned  judgment  and order dated 8th July, 2013  passed  by  the  High  Court  in  Writ  Petition No.5508 of 2013, upheld the  order  passed  by  the  Central  Administrative Tribunal dated 18th February, 2013 with direction to  the  respondent(s)  to reconsider the name of the appellant viz-a-viz 1st respondent for  promotion to the post of Indian Administrative Service against the vacancies  for  the year 2009=

The appellant and the 1st respondent are officers of Tamil Nadu  State
Civil  Services.  They  were  considered  for  promotion   to   the   Indian
Administrative Service  (hereinafter  referred  to  as  the  “IAS”)  against
certain percentage of  posts  available  for  members  of  the  State  Civil
Service.
According to  the  appellant,  though  his  ACRs
were far better than the ACRs of other candidates including 1st  respondent,
he was not selected.
9.    A notification dated 10th February, 2012 was issued by the  Government
of India and the selected candidates were appointed to  the  IAS  cadre  for
the vacancies of 2009 and 2010.
10.   The appellant having not selected/promoted filed Original  Application
No.249 of 2012 before the  Central  Administrative  Tribunal,  Madras  Bench
challenging the notification 10th February, 2012 passed  by  the  Government
of India.=
When the matter  was  pending,  on  15th  March,  2012  the  State
Government dropped the disciplinary proceedings against the  1st  respondent
taking into consideration the enquiry report and  reply  filed  by  the  1st
respondent. =
By an amendment application filed in pending OA,  the  appellant
challenged the notification of 13th April, 2012,  by  which  1st  respondent
was  appointed  to  the  Indian  Administrative  Service. =
Central Administrative Tribunal
The Central Administrative Tribunal, Madras Bench by its judgment  and
order dated 18th February, 2013 allowed the Original  Application  filed  by
the appellant, quashed the notification dated 10th February, 2012 in so  far
as  not  including  the  name  of  the  appellant  herein  and  quashed  the
notification dated 13th April, 2012 by which 1st respondent was appointed.=

High court 

12.   The High Court at the instance of the 1st respondent allowed the  writ
petition and set aside  the  order  passed  by  the  Central  Administrative
Tribunal, Madras Bench in OA No.249 of 2012.=

Apex court held that 

we hold that in terms  of  Regulation
5(4)  of  the  Indian  Administrative  Service  (Appointment  by  Promotion)
Regulations,  1955  it  was  incumbent  upon  State  Government  to  forward
complete service records of all the eligible candidates  including  the  1st
respondent to the UPSC for considering them  for  promotion  to  IAS  cadre.

Withholding of ACRs of the year 2003-2009 of the 1st respondent on  a  wrong
presumption that they were invalid, is illegal and fatal in the case of  1st
respondent towards his appointment to  the  post  of  Indian  Administrative
Service.
The aforesaid fact though came to the  notice  of  the  UPSC  which
sought  clarification  from  the  Government  of  Tamil  Nadu,   the   State
Government misled the UPSC which resulted in  wrong  assessment  of  service
records of  1st  respondent  in  violation  of  Regulation  5(4)  read  with
Regulation  6  of  the  Indian  Administrative   Service   (Appointment   by
Promotion) Regulations, 1955.
28.   The  Central  Administrative  Tribunal  by  its  judgment  dated  18th
February, 2013 rightly held that the Selection Committee has not taken  into
account all relevant facts and records to come to a conclusion that the  1st
respondent is superior to appellant.
29.   The Central Administrative  Tribunal  also  considered  the  issue  of
departmental proceedings pending  against  the  1st  respondent  under  Rule
17(b) of the Tamil Nadu Service (Discipline and Appeal) Rules,  was  noticed
by the Selection Committee as apparent from recommendation of  the  name  of
1st respondent with a star mark shown against the same with a note  that  in
view of the pendency of the departmental proceedings inclusion of  the  name
of 1st respondent was provisional.  In  the  said  departmental  proceedings
Enquiry Officer after going through the evidence and reply submitted by  the
1st respondent  held  that  the  charge  No.2  is  proved  against  the  1st
respondent. In spite of the same, the State Government dropped the  charges.

30.   The Tribunal noticed that the State  Government  dropped  the  charges
against the 1st respondent without giving detailed reasons for such  action.
Considering the same the Tribunal held that the State Government  failed  to
furnish the valid reasons for dropping charges and for  subsequent  issuance
of integrity certificate to the 1st respondent.  For  the  said  reason  the
Tribunal held that the action on the part of the State is a  case  of  hasty
decision.
31.   The High Court failed to appreciate the guidelines  dated  4th  April,
2007  issued by the State Government with regard  to  the  ACR  and  wrongly
accepted the stand of the respondents that  invalid  ACRs  were  not  to  be
considered. The High Court also exceeded its jurisdiction in discussing  the
charges framed against the 1st respondent and in justifying the grounds  for
dropping the charges, though it was not disclosed by the State Government.
32.   For the reasons aforesaid, we set  aside  the  impugned  judgment  and
order dated 8th July, 2013  passed  by  the  High  Court  in  Writ  Petition
No.5508 of 2013, upheld the  order  passed  by  the  Central  Administrative
Tribunal dated 18th February, 2013 with direction to  the  respondent(s)  to
reconsider the name of the appellant viz-a-viz 1st respondent for  promotion
to the post of Indian Administrative Service against the vacancies  for  the
year 2009A. If necessary, a fresh Selection Committee or a Review  Committee
shall be constituted and reconvened. The process of selection  be  completed
within three months. The order passed by the Tribunal  stands  modified  to
the extent above.

33.   The appeal is allowed with the aforesaid observations and  directions.
No costs.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41776

SUDHANSU JYOTI MUKHOPADHAYA, V. GOPALA GOWDA

                                                               REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL NO.               OF 2014
                   (arising out of SLP(C)No.26223 of 2013)


G. MOHANASUNDARAM                                   … APPELLANT

                                   VERSUS

R. NANTHAGOPAL AND ORS.                             … RESPONDENTS


                               J U D G M E N T


Sudhansu Jyoti Mukhopadhaya, J.


      Leave granted.
2.    This appeal is directed against  the  judgment  and  order  dated  8th
July, 2013 passed by the Division Bench of the High Court of  Judicature  at
Madras in Writ Petition No.5508 of 2013.  Initially,  the  appellant  herein
challenged the Government notifications dated 10th February, 2012  and  13th
April, 2012 whereby 1st respondent was promoted and appointed to the  Indian
Administrative Service, before the Central Administrative  Tribunal,  Madras
Bench by filing OA No.249 of 2012 and the same was allowed  by  order  dated
18th February, 2013. By the impugned judgment the High Court set  aside  the
said order dated 18th February, 2013 passed by  the  Central  Administrative
Tribunal.
3.    The factual matrix of the case is as follows:
      The appellant and the 1st respondent are officers of Tamil Nadu  State
Civil  Services.  They  were  considered  for  promotion   to   the   Indian
Administrative Service  (hereinafter  referred  to  as  the  “IAS”)  against
certain percentage of  posts  available  for  members  of  the  State  Civil
Service.
4.    On 1st September, 2009, the State of Tamil Nadu prepared a list of  27
eligible candidates for consideration for appointment against  19  vacancies
of IAS for the year 2009. The list was sent to the Secretary,  Union  Public
Service Commission (hereinafter referred to as the “UPSC”). The name of  the
appellant was included at serial No.26 and the name of  the  1st  respondent
was placed at serial No.16 of  the  said  list  prepared  on  the  basis  of
seniority list of the State Civil Service. In the seniority  list  of  State
Civil Service the appellant was placed at serial No.59  and  1st  respondent
at serial No.34.
5.    On 4th November, 2009, the  State  Government  issued  a  charge-sheet
against the 1st respondent under Rule 17(b) of the Tamil Nadu Civil  Service
(Discipline and Appeal) Rules for certain irregularities  committed  by  him
while working  as  Senior  Regional  Manager,  Tamil  Nadu  State  Marketing
Corporation Ltd. On 3rd February, 2011,  the  State  Government  prepared  a
list of 10 eligible candidates for appointment to the IAS cadre against  the
2009 vacancies. The appellant was shown at serial No.9  and  1st  respondent
at serial No.4. The list was forwarded to the UPSC.
6.    On 10th March, 2011, the UPSC sought for clarifications and some  more
information from the State Government.  By  its  letter  dated  12th  April,
2011, the State Government enclosed the Annual  Character  Rolls  (ACRs)  of
all the eligible candidates, which according to the  State  Government  were
valid. The State Government withheld some of the ACRs of certain  candidates
including the 1st respondent on the ground that the  ACRs  were  not  valid.
The ACRs of the 1st respondent pertaining to the period 27th July,  1998  to
10th June, 2002 i.e., for 5 years alone, were forwarded to the UPSC and  the
ACRs of the 1st respondent for the period  from  10th  June,  2002  to  31st
March, 2009 were withheld by the State.
7.    On 7th December, 2011, the State Government forwarded  a  list  of  13
candidates for promotion to the IAS cadre against 2 vacancies for  the  year
2010. The appellant was shown at serial  No.8  and  the  1st  respondent  at
serial No.4. The ACRs of all the candidates  including  the  1st  respondent
for the period 26th May, 2006 to 7th January, 2008 were forwarded.
8.    The Selection Committee prepared a Select List of  2009  and  2010  on
27th December, 2011 against the respective vacancies  of  those  years.  The
appellant was not selected. According to  the  appellant,  though  his  ACRs
were far better than the ACRs of other candidates including 1st  respondent,
he was not selected.
9.    A notification dated 10th February, 2012 was issued by the  Government
of India and the selected candidates were appointed to  the  IAS  cadre  for
the vacancies of 2009 and 2010.
10.   The appellant having not selected/promoted filed Original  Application
No.249 of 2012 before the  Central  Administrative  Tribunal,  Madras  Bench
challenging the notification 10th February, 2012 passed  by  the  Government
of India. When the matter  was  pending,  on  15th  March,  2012  the  State
Government dropped the disciplinary proceedings against the  1st  respondent
taking into consideration the enquiry report and  reply  filed  by  the  1st
respondent. By an amendment application filed in pending OA,  the  appellant
challenged the notification of 13th April, 2012,  by  which  1st  respondent
was  appointed  to  the  Indian  Administrative  Service.  The  UPSC,  State
Government and 1st respondent filed their respective replies  to  which  the
appellant filed a rejoinder. According to the UPSC, the selection  was  made
in accordance with the rules and the valid ACRs which were forwarded by  the
State Government. The State Government in its reply justified its action  in
sending only the valid ACRs and the 1st respondent disputed  the  allegation
made against him.
11.   The Central Administrative Tribunal, Madras Bench by its judgment  and
order dated 18th February, 2013 allowed the Original  Application  filed  by
the appellant, quashed the notification dated 10th February, 2012 in so  far
as  not  including  the  name  of  the  appellant  herein  and  quashed  the
notification dated 13th April, 2012 by which 1st respondent was appointed.
12.   The High Court at the instance of the 1st respondent allowed the  writ
petition and set aside  the  order  passed  by  the  Central  Administrative
Tribunal, Madras Bench in OA No.249 of 2012.
13.   Learned counsel for the appellant submitted that  the  High  Court  by
the impugned judgment and order dated  8th  July,  2013  reversed  the  well
reasoned  judgment  and  order  dated  18th  February,   2013   of   Central
Administrative Tribunal, Madras  Bench,  ignoring  the  fact  that  the  1st
respondent was facing major charges and had adverse entry  in  the  ACRs  at
the time of selection. It was contended that  though  ACRs  for  the  period
from 1st October, 2002 to 31st March, 2009 of 1st respondent were  available
they were not forwarded by the State Government to the  UPSC.  According  to
him in the matter of  promotion  and  compulsory  retirement  from  service,
entire service record of the officer concerned should have been  considered.

14.   Learned senior  counsel  for  the  appellant  further  contended  that
respondents acted arbitrarily in not taking into consideration the  relevant
ACRs of the 1st respondent on the ground that they were written  beyond  the
time prescribed by the State Government.
15.   Learned counsel for  the  UPSC  contended  that  at  time  of  holding
Selection  Committee  meeting  for  the  Select  List  of  2009,  the  State
Government forwarded the ACRs stated to be valid  and  duly  certified.  The
meeting  was  then  convened  for  4th  December  2009,  however,  when  the
Committee met on 4th December, 2009, it was  observed  that  certain  issues
relating  to  the  validity  of  the  ACRs  of  officers  in  the  zone   of
consideration were required to be resolved by the State Government, and  the
meeting was, therefore deferred. Subsequently,  when  the  Select  List  for
2009 was to be drawn up, the State Government forwarded the  ACRs  vide  its
letter dated 10th March, 2010  along  with  the  validity  certificate.  The
meeting was convened on 26th May, 2010 and the Select List of  2009  for  19
vacancies was drawn up. The 1st respondent was considered  at  serial  No.17
and his ACRs for the certain period were considered. But since his ACRs  for
the period 2003-2004 to 2005-2006  were  not  available,  the  Committee  in
accordance with the guidelines considered the ACRs for the  period  1999  to
2002.
16.   Learned counsel for UPSC further submitted that on 31st  March,  2010,
the Government of India determined  7  vacancies  for  the  year  2010.  The
Select List of 2010 was renamed as 2009A in view  of  the  judgment  of  the
High Court of Punjab and Haryana regarding overlapping  Select  List  for  a
particular year. The State Government forwarded the ACRS vide  letter  dated
3rd February, 2011. On the scrutiny of the ACRs, it was found that the  ACRs
of some of the  officers  including  1st  respondent  which  were  furnished
during the last Selection Committee meeting were not  furnished  before  the
present Selection Committee and the ACRs which were  not  furnished  earlier
were furnished. The  reason  for  this  change  was  asked  from  the  State
Government vide letter dated 10th March, 2011 to which the State  Government
replied by letter dated 12th April,  2011  that  the  State  Government  had
considered the  ACRs  written  by  the  Reporting  Officer  or  Scrutinizing
Officer within a period of 9 months as valid for the Select List 2009  which
were forwarded to UPSC considering the fact the officers reported upon  need
not be penalized for no fault of theirs. It was further contended  that  for
the Select List  2009A,  the  State  Government  considered  that  the  ACRs
written by both the Reporting Officer  and  Scrutinising  Officer  within  a
period of 6 months are valid, barring certain cases for which  ACRs  written
for the periods slightly exceeding six months. The  matter  was  once  again
taken up by UPSC with the State Government  as  the  revision  in  the  time
limit for writing of ACRs with reference  to  the  earlier  selection  would
lead to anomalous situation. The State Government by its  letter  dated  1st
December, 2011 intimated the UPSC that with a view to  maintain  consistency
after obtaining orders of the competent authority it was  decided  that  the
ACRs written within 9 months may be  considered  valid  for  preparation  of
Select List of 2009A and the Officers need not be penalized for no fault  of
theirs. The meeting of the Selection Committee was held  on  27th  December,
2011. In the Select List of 2009A, 1st respondent was considered  at  serial
No.4 and he was assessed for the period 2004 to 2009. However,  in  view  of
the ACRs ‘not available’ for the period 2004 to 2006 and for the year  2008-
2009, the Committee considered the ACRs of preceding years 1999 to 2002.  In
this regard the UPSC  has  also  referred  to  the  Government’s  guidelines
issued from time to time.
17.   It was further submitted on behalf of the UPSC that since the rule  of
the State Government regarding the period of writing of  ACRs  remained  the
same to the Select Lists of 2009 and 2009A, the Selection Committee  as  per
the  internal  guidelines  adopted  the  assessment  of  previous  Selection
Committee. Therefore, assessment of ACR of 1st  respondent  for  the  period
from 26th May, 2006 to 6th March, 2007  certified  as  valid  by  the  State
Government for select list of 2009 was adopted by Selection Committee  which
met to prepare the select list of 2009A. It  was  also  submitted  that  the
State Government is required to place only valid  ACRs  in  the  Dossier  of
officers under the zone of consideration for a particular  Select  List,  as
was done in this case.
18.   We have considered  the  rival  submissions  made  on  behalf  of  the
parties.  After  giving  our  careful  consideration  to   the   facts   and
circumstances of the case, we are of the view that the High  Court  was  not
justified in interfering with the well reasoned order passed by the  Central
Administrative Tribunal.
19.   Promotion and appointment  of  officers  of  State  Civil  Service  to
Indian Administrative Service are governed by Indian Administrative  Service
(Appointment by Promotion) Regulations, 1955. As per Regulation 5(4) of  the
Indian Administrative Service (Appointment by Promotion)  Regulations,  1955
it is mandatory for the Selection Committee  to  make  an  overall  relative
assessment of  ‘service  records’  of  the  eligible  candidates.  The  said
Regulation reads as follows:


           “Regulation 5(4) - The Selection Committee  shall  classify  the
           eligible  officers  as  ‘Outstanding’,  ‘Very  Good,  ‘Good’  or
           ‘Unfit’, as the case may be, on an overall  relative  assessment
           of their Service records.”


20.    Under Regulation 5(5), the list shall be prepared first from  amongst
the officers finally classified  as  ‘Outstanding’  and  then  from  amongst
those similarly classified as ‘Very Good’ and so  on.  The  said  regulation
reads as follows:


           “Regulation 5(5) – 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  of  names
           inter-se within each category shall be in  the  order  of  their
           seniority in the State Civil Service.


            Provided that the name of any 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 and in 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.”




      As per first proviso to Regulation 5(5) the name of  such  officer  so
included in the  Select  List  against  whom  departmental  proceedings  are
pending or anything  adverse  as  has  come  to  the  notice  of  the  State
Government which renders him unsuitable for appointment to  the  service  is
provisional.
21.   Regulation 6 relates to  consultation  with  UPSC.  As  per  the  said
Regulation the list prepared in accordance with Regulation 5 is required  to
be forwarded to the UPSC by the State Government along with records  of  all
members of the State Civil Service included in the list.
22.   From the stand taken by the respondents, it is clear  that  the  State
Government did not send all the service records of  eligible  candidates  to
UPSC for consideration. Particularly, the relevant service  records  of  1st
respondent, for the  preceding  five  years  prior  to  selection  were  not
forwarded on the ground that they are not valid.
23.   The minutes of the meeting  of  the  Selection  Committee  dated  27th
December, 2011 as recorded at paragraph  5.3  and  5.4  of  the  proceedings
suggests that the service records of all the officers upto  the  year  2008-
2009 were considered and on that basis the 1st  respondent  was  recommended
for promotion. But this is far from truth as apparent  from  paragraph  5.3,
5.4 and 5.5 of the proceedings as quoted hereunder:
            “5.3.      The Committee examined the  service  records  of  the
            officers whose names  are  included  in  the  Annexure  and  who
            fulfilled the conditions of eligibility  for  promotion  to  the
            IAS. The Committee took  into  consideration  the  ACRs  of  the
            officers (certified as valid by the State Government vide letter
            dated 07.12.2011) upto the year 2008-09. On an overall  relative
            assessment of their service records, the Committee assessed them
            as  indicated  against  their  names  in  the  Annexure.   While
            assessing their suitability, the Committee  did  not  take  into
            consideration any adverse remarks in the ACRs  of  the  officers
            which were not communicated to them.


            5.4  The Committee examined the records of  the  officers  whose
            names  are  included  in  Annexure-I  and  who   fulfilled   the
            conditions of eligibility, up to the year 2008-09. On an overall
            relative assessment of  their  service  records,  the  Committee
            assessed them as indicated against their  names  in  Annexure-I.
            while assessing their suitability, the Committee  did  not  take
            into consideration any  adverse  remarks  in  the  ACRs  of  the
            officers which were not communicated to them.


            5.5  On  the  basis  of  the  above  assessment,  the  Committee
            selected  the  officers  whose  names  are  mentioned  below  as
            suitable for promotion to the Indian Administrative Service  and
            placed them in the following order:-


            |Sl. No.   |Name of the Officer   |Date of Birth  |
|          |(Smt./Shri)           |               |
|1.        |P. Senthilkumar (SC)  |18.12.1957     |
|2.        |V. Kalaiarasi         |29.03.1969     |
|3.        |G. Govindaraj (SC)    |26.04.1960     |
|4.        |V. Mohanraj (SC)      |22.01.1957     |
|5.*       |R. Nanthagopal        |23.05.1964     |
|6.        |N. Vankatachalam      |29.04.1965     |
|7.        |C. Manoharan (SC)     |15.12.1955     |


              *The  names  at  S.No.5  has  been  included  in   the   list
              provisionally  subject  to  clearance  in  the   disciplinary
              proceedings  pending  against  him  and  grant  of  integrity
              certificate by the State Government.”


      The name of the 1st respondent was included provisionally  subject  to
clearance in the disciplinary proceedings pending against him and  grant  of
integrity certificate by the State Government.
24.   The appellant had challenged the action of State Government  declaring
an ACR invalid in absence of any valid  reason.  According  to  the  learned
counsel for the appellant, merely because an ACR  has  been  written  beyond
the period of 9 months, it cannot be  held  to  be  invalid  in  absence  of
limitation prescribed under any rule or guideline.
25.   On behalf  of  the  State  Government  reliance  has  been  placed  on
Government  Order  dated  4th  April,   2007   issued   by   Personnel   and
Administrative  Reforms  (K)  Department  of  State  of  Tamil   Nadu.   The
Government  issued  guidelines  with  respect  to  writing  of  the   Annual
Confidential Report by the said Government Order. The  relevant  portion  of
the said order reads as follows:

           “6.The Government have examined the above issue  afresh  and  in
           supersession of all  the  existing  instructions  the  following
           fresh  instructions  are  issued  in  respect  of   writing   of
           confidential reports by the Reporting Officers whenever they are
           demitting office either on transfer or for other reasons in  the
           middle of  the  year.  The  following  instructions  are  to  be
           followed scrupulously.


                 “Whenever the Reporting Officers are to relinquish  charge
           on  transfer  or  for  other  reasons,  they  should  write  the
           confidential reports in respect of all his subordinate  officers
           and  the  handling  over  charge  report  should   accompany   a
           certificate to his higher officer that he had completely written
           the  confidential  reports  on  all  his  subordinate  officers.
           However, it it is not possible to adhere to the above procedure,
           due to administrative reasons, he may take a reasonable time  to
           write confidential  reports  but  this  time  limit  should  not
           ordinarily exceed  90  days  from  the  date  of  his  demitting
           office.”




26.   In the guidelines issued by the State Government, there is nothing  to
declare any Annual Confidential  Report  invalid.  The  period  of  90  days
prescribed therein is not mandatory but directory. The  90  days  period  is
also to be counted from the date of demitting  office  by  the  officer  who
writes the A.C.R.
27.   In view of the discussion above, we hold that in terms  of  Regulation
5(4)  of  the  Indian  Administrative  Service  (Appointment  by  Promotion)
Regulations,  1955  it  was  incumbent  upon  State  Government  to  forward
complete service records of all the eligible candidates  including  the  1st
respondent to the UPSC for considering them  for  promotion  to  IAS  cadre.
Withholding of ACRs of the year 2003-2009 of the 1st respondent on  a  wrong
presumption that they were invalid, is illegal and fatal in the case of  1st
respondent towards his appointment to  the  post  of  Indian  Administrative
Service. The aforesaid fact though came to the  notice  of  the  UPSC  which
sought  clarification  from  the  Government  of  Tamil  Nadu,   the   State
Government misled the UPSC which resulted in  wrong  assessment  of  service
records of  1st  respondent  in  violation  of  Regulation  5(4)  read  with
Regulation  6  of  the  Indian  Administrative   Service   (Appointment   by
Promotion) Regulations, 1955.
28.   The  Central  Administrative  Tribunal  by  its  judgment  dated  18th
February, 2013 rightly held that the Selection Committee has not taken  into
account all relevant facts and records to come to a conclusion that the  1st
respondent is superior to appellant.
29.   The Central Administrative  Tribunal  also  considered  the  issue  of
departmental proceedings pending  against  the  1st  respondent  under  Rule
17(b) of the Tamil Nadu Service (Discipline and Appeal) Rules,  was  noticed
by the Selection Committee as apparent from recommendation of  the  name  of
1st respondent with a star mark shown against the same with a note  that  in
view of the pendency of the departmental proceedings inclusion of  the  name
of 1st respondent was provisional.  In  the  said  departmental  proceedings
Enquiry Officer after going through the evidence and reply submitted by  the
1st respondent  held  that  the  charge  No.2  is  proved  against  the  1st
respondent. In spite of the same, the State Government dropped the  charges.

30.   The Tribunal noticed that the State  Government  dropped  the  charges
against the 1st respondent without giving detailed reasons for such  action.
Considering the same the Tribunal held that the State Government  failed  to
furnish the valid reasons for dropping charges and for  subsequent  issuance
of integrity certificate to the 1st respondent.  For  the  said  reason  the
Tribunal held that the action on the part of the State is a  case  of  hasty
decision.
31.   The High Court failed to appreciate the guidelines  dated  4th  April,
2007  issued by the State Government with regard  to  the  ACR  and  wrongly
accepted the stand of the respondents that  invalid  ACRs  were  not  to  be
considered. The High Court also exceeded its jurisdiction in discussing  the
charges framed against the 1st respondent and in justifying the grounds  for
dropping the charges, though it was not disclosed by the State Government.
32.   For the reasons aforesaid, we set  aside  the  impugned  judgment  and
order dated 8th July, 2013  passed  by  the  High  Court  in  Writ  Petition
No.5508 of 2013, upheld the  order  passed  by  the  Central  Administrative
Tribunal dated 18th February, 2013 with direction to  the  respondent(s)  to
reconsider the name of the appellant viz-a-viz 1st respondent for  promotion
to the post of Indian Administrative Service against the vacancies  for  the
year 2009A. If necessary, a fresh Selection Committee or a Review  Committee
shall be constituted and reconvened. The process of selection  be  completed
within three months. The order passed by the  Tribunal  stands  modified  to
the extent above.

33.   The appeal is allowed with the aforesaid observations and  directions.
No costs.
                                               ………………………………………………………………………J.
                                       (SUDHANSU JYOTI MUKHOPADHAYA)



                                                ……………………………………………………………………J.
                                            (V. GOPALA GOWDA)

NEW DELHI,
JULY 21, 2014.

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