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whether the Annual Confidential Report (ACR) of an officer forms a part of his ‘service record’ and whether it could be ignored for the purposes of his promotion merely on the ground that it was written after some delay. In our opinion, the ACR of an officer forms a part of his service record and he cannot be prejudiced merely because his superior officers delayed writing it. The judgment and order to the contrary passed by the Madras High Court on 27th October, 2006 in W.P. Nos. 15791-15795 of 2006 does not lay down the correct law.[1]= whether on a consideration of the entire service record Sivanandi was entitled to be promoted to the IPS with the year of allotment as 1991. There is nothing to suggest that the Review Select Committee with the UPSC did not consider the case of Sivanandi for promotion on merit or that the view of the Review Select Committee was perverse in any manner. That being so we do not think it proper to interfere with the decision arrived at by the Review Select Committee with the UPSC on the basis of the service record of Sivanandi more so when it was the submission of the UPSC that what tilted the scales in his favour was his ACR for the period 1992-93 which was earlier missing and which was not taken into consideration on an earlier occasion. 22. Under these circumstances we uphold the decision taken by the Review Select Committee and allow these appeals by setting aside the order of the High Court. Sivanandi will be entitled to all consequential benefits.



                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS. 4822-4826 OF 2007

P. Sivanandi                                       ….Appellant

versus

Rajeev Kumar & Ors.                                      …Respondents

        WITH

                                            CIVIL APPEAL NO. 4827 OF 2007

P. Sivanandi                                         ….Appellant

                               versus

The State of Tamil Nadu & Ors.                       …Respondents

                               J U D G M E N T

Madan B. Lokur, J.

1.    These appeals raise  a  narrow  question  for  consideration,  namely,
whether the Annual Confidential Report (ACR) of an officer forms a  part  of
his ‘service record’ and whether it could be ignored  for  the  purposes  of
his promotion merely on the ground that it was written after some delay.  In
our opinion, the ACR of an officer forms a part of his  service  record  and
he cannot  be  prejudiced  merely  because  his  superior  officers  delayed
writing it. The judgment and order to the contrary passed  by   the   Madras
High  Court  on  27th October,  2006  in   W.P.  Nos.  15791-15795  of  2006
does not lay down the correct law.[1]
2.    As mentioned above, the issue involved in this case is  rather  narrow
and it is not necessary to detail all the facts of the  case.    Suffice  it
to say that the appellant Sivanandi was directly recruited on or  about  6th
May, 1985 as a Deputy Superintendent of Police with the Tamil Nadu Police.

3.    A  Select  Committee  constituted  under  the  Indian  Police  Service
(Appointment by Promotion) Regulations, 1955 considered  Sivanandi,  amongst
others, for promotion in 1994-95 to the Indian Police  Service.  The  Annual
Confidential Reports (ACRs) required to  be  considered  for  his  promotion
related to the period from 01.04.1989 to 31.03.1994.

4.    The Select Committee graded Sivanandi as ‘Good’ when  it  met  on  7th
March, 1995.  This grading was apparently arrived at on  the  basis  of  his
service records minus his ACR for 1992-93 which was missing  and  minus  his
ACR for a part  of  the  period  of  1993-94  that  is  from  01.04.1993  to
15.07.1993 which had not been written.  He was however,  considered  in  the
subsequent year 1995-96 and promoted to the IPS with the year  of  allotment
being 1993.
5.    On a challenge having been raised  to  the  selection  to  the  Indian
Police Service by some  aggrieved  officers,  an  original  application  was
filed before the  Central  Administrative  Tribunal  (Tribunal),  which  set
aside the  selection  for  1994-95.  The  Tribunal  then  directed  a  fresh
selection process. The opinion expressed by the  Tribunal  was  accepted  by
this Court by an order dated 20th February, 2002 in Civil Appeal Nos.  1299-
1305 of 1999 etc. (Christopher Nelson v. U.P.S.C. & Ors.).
6.    In view of the above facts,  a  Review  Select  Committee  constituted
under the said Regulations met  on  24th  March,  1999  and  considered  the
eligible officers including Sivanandi for promotion to the  IPS  as  on  the
year 1994-95.  By this time, the missing ACR of Sivanandi for the year 1992-
93 had been located.  Additionally, the ACR for the above period  01.04.1993
to 15.07.1993 which could not be placed before the Select Committee  in  its
meeting held on 7th March, 1995 was also available.  In fact, it  transpires
that the ACR for that period of about three and a half  months  was  written
by the Reporting Officer on 14.11.1994; it was  reviewed  by  the  Reviewing
Officer on 19.01.1996;  it  was  accepted  by  the  Accepting  Authority  on
27.01.1996.   These dates explain why the ACR for the period  01.04.1993  to
15.07.1993 could not be placed before the Select Committee when  it  met  on
7th March, 1995.
7.    Be that as it may, in view of the  consideration  of  Sivanadi’s  ACRs
including the ACR  for  1992-93  and  for  the  period  from  01.04.1993  to
15.07.1993 he was graded ‘Very Good’ and promoted to the IPS with  the  year
of allotment being 1991.
8.    Feeling aggrieved by Sivanandi’s selection,  the  private  respondents
before us approached the Tribunal through  a  batch  of  applications  being
O.A. No. 595-598 of 2005 and O.A. No. 780 of 2005.
9.    By a common order  dated  5th  May,  2006  the  Tribunal  allowed  the
original applications filed by the private respondents on the  finding  that
the ACR for the period 01.04.1993 to 15.07.1993 was invalid  and  could  not
have been considered by the Review Select Committee  since  it  was  written
beyond  the  period  prescribed  by  the  State  Government  and   therefore
Sivanandi’s selection was vitiated.  Significantly,  the  Tribunal  held  in
Sivanandi’s favour that the earlier missing ACR for 1992-93  which  was  now
made available was rightly considered by the Review Select Committee.

10.   Feeling aggrieved by the limited adverse finding against  him  by  the
Tribunal, Sivanandi preferred W.P. Nos. 15791-15795 of 2006  in  the  Madras
High Court challenging the  common  order  of  the  Tribunal  vitiating  his
selection by excluding from consideration the ACR for the period  01.04.1993
to 15.07.1993.
11.   One of the submissions made by the  Union  Public  Service  Commission
(for short ‘UPSC’) to justify the selection by the Review Select  Commission
before the High Court  was  that  the  ACR  for  the  period  01.04.1993  to
15.07.1993  could  validly  have  been  considered  by  the  Review   Select
Committee.  Alternatively, it was submitted that even if  it  were  excluded
from consideration, it would make no difference to the  overall  grading  of
Sivanandi and that it was the earlier missing ACR of 1992-93  that  resulted
in Sivanandi being graded ‘Very Good’ as  against  the  earlier  grading  of
‘Good’.  As such, the promotion of Sivanandi to the IPS was fully  justified
in law and also on merit, even  after  excluding  the  ACR  for  the  period
01.04.1993 to 15.07.1993.

12.   Unfortunately, the High Court did not  accept  Sivanandi’s  contention
or that of the UPSC and upheld the view expressed by the  Tribunal.   It  is
under these circumstances that Sivanandi is now before us.

13.   It is been brought to our notice  by  learned  counsel  for  Sivanandi
that the issue raised in these appeals is no longer  res integra in view  of
the decision of this Court in G. Mohanasundaram v. R. Nanthagopal & Ors.[2]

14.    In  the  aforesaid   decision,   the   provisions   of   the   Indian
Administrative Service (Appointment by  Promotion)  Regulations,  1955  were
under consideration.  The relevant provisions are in pari materia  with  the
provisions  of  the  Indian  Police  Service  (Appointment   by   Promotion)
Regulations, 1955.

15.   It was held by this Court that in terms of the  IAS  Regulations,  the
UPSC is obliged to consider  the  service  record  of  a  candidate  who  is
eligible for promotion and it is  on  the  basis  of  the  overall  relative
assessment of the service record that an eligible  officer  may  be  graded.
Consequently, it is quite clear  that  the  entire  service  record  of  the
eligible candidates is required to be  sent  to  the  Select  Committee  for
consideration.  For this reason, the ACRs of Sivanandi for 1992-93  and  for
the period 01.04.1993 to 15.07.1993 were required to be  considered  by  the
Review  Select  Committee.  Regulation  5  of  the  Indian  Police   Service
(Appointment by Promotion) Regulations, 1955 reads as follows:-

“5. Preparation of list of suitable officers  –  (1)  Each  Committee  shall
ordinarily meet every year and prepare a list of such members of  the  State
Police Service, as held by  them  to  the  suitable  for  promotion  to  the
Service.  The number of members of the State Police Service to  be  included
in the list shall be determined by the Central  Government  in  consultation
with the State Government concerned, and shall  not  exceed  the  number  of
substantive vacancies as on the first day of January of the  year  in  which
the meeting is held, in the posts available for them under  Rule  9  of  the
Recruitment Rules.  The date and venue of the meeting of  the  Committee  to
make the Selection shall be determined by the Commission:

      Provided that ………..

(2)…………..

(2-A)……….

(3)…………..

(3-A)………

(4)  The  Selection  Committee  shall  classify  the  eligible  officers  as
‘outstanding’  ‘very good’  ‘Good’ or ‘Unfit’ as the  case  may  be,  on  an
overall relative assessment of their service records.

(5)……….

(6)……….”



16.    In  the  above-cited  decision,  one  of  the  submissions  made   by
Mohanasundaram in this Court was that the State Government had declared  his
ACR invalid merely because it had been written beyond  the  period  of  nine
months.  It was submitted that the ACR could not  be  held  invalid  in  the
absence of any limitation prescribed under any rule or guidelines.

17.   The State of Tamil Nadu sought to rely upon  a  Government  Order  (or
GO) dated 4th April, 2007 to deny to the candidate the benefit  of  the  ACR
written beyond the period of nine months.  Although the GO dated 4th  April,
2007 was issued after the decision in the impugned judgment and  order,  the
principle laid down by this Court on the interpretation of that GO would  be
equally applicable and one of the  principles  so  laid  down  is  that  the
prescription of a period for writing an ACR is not mandatory but  directory.
 That being the position, the ACR of Sivanandi for the period 01.04.1993  to
15.07.1993  could  validly  have  been  considered  by  the  Review   Select
Committee even if it was written after some delay and there was no error  in
its consideration.

18.   This is what this Court had to say:

“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 ACR.

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  the  State  Government  to  forward
complete service records of all the eligible candidates including the  first
respondent to UPSC for considering them for  promotion  to  the  IAS  cadre.
Withholding of ACRs of the year 2003-2009  of  the  first  respondent  on  a
wrong presumption that they were invalid, is illegal and fatal in  the  case
of the first respondent towards  his  appointment  to  the  post  of  Indian
Administrative Service. The aforesaid fact though  came  to  the  notice  of
UPSC which sought clarification from  the  Government  of  Tamil  Nadu,  the
State Government misled UPSC which resulted in wrong assessment  of  service
records of the first respondent in violation of Regulation  5(4)  read  with
Regulation  6  of  the  Indian  Administrative   Service   (Appointment   by
Promotion) Regulations, 1955.”


19.   That apart, the fact  that  the  ACR  of  Sivanandi  was  written  and
reviewed by his superior authorities after a  considerable  delay  obviously
cannot put him to any disadvantage.  The writing and review of his  ACR  was
beyond his control and we do not see any rational basis on  which  Sivanandi
could be disadvantaged merely because his superior officers were lax in  the
discharge of their responsibilities.
20.   Under these circumstances, we are of the  view  that  the  High  Court
while upholding  the  view  expressed  by  the  Tribunal  was  in  error  in
concluding that the Review Select Committee could not consider  the  ACR  of
Sivanandi for the period 01.04.1993 to 15.07.1993 and  to  this  extent  the
decision of the High Court is set aside.

21.   The question that now remains is whether on  a  consideration  of  the
entire service record Sivanandi was entitled to be promoted to the IPS  with
the year of allotment as 1991. There is nothing to suggest that  the  Review
Select Committee with the UPSC did not consider the case  of  Sivanandi  for
promotion on merit or that the view  of  the  Review  Select  Committee  was
perverse in any manner.  That  being  so  we  do  not  think  it  proper  to
interfere with the decision arrived at by the Review Select  Committee  with
the UPSC on the basis of the service record of Sivanandi  more  so  when  it
was the submission of the UPSC that what tilted the  scales  in  his  favour
was his ACR for the period 1992-93 which was earlier missing and  which  was
not taken into consideration on an earlier occasion.
22.   Under these circumstances we uphold the decision taken by  the  Review
Select Committee and allow these appeals by setting aside the order  of  the
High Court.  Sivanandi will be entitled to all consequential benefits.

                                                                 ……………………….J
                                           ( Madan B. Lokur )



New Delhi;                                           ………………………J
February 2, 2017                                     ( Prafulla C. Pant )

-----------------------
[1]   [2] P. Sivanandi v. Rajiv Kumar, MANU/TN/9878/2006
[3]   [4] (2014) 13 SCC 172


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