whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body i.e. the Selection Committee. ?
the High Court of Madras in Writ Petition No.33696 of 2007 , set aside the order of the Tribunal and directed the appellants and Union of India (DoPT) to convene a Selection Committee Meeting for reviewing the promotions made to the Indian Administrative Service (IAS) for the year 2004 and promote the first respondent herein to the IAS from the date when his juniors were promoted with all the consequential benefits.=
The question as to how the categories are assessed in light of the relevant records and as to what norms apply in making the assessment, is exclusively to be determined by the Selection
Committee.
Since the jurisdiction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness.
It is not the function of the court to hear the matters before it treating them as appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The
question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body i.e. the Selection Committee. The courts have very limited scope of judicial review in such matters.” [Underlining added]
In the present case, we find that neither the decision of the Selection Committee nor the decision-making process suffers from any arbitrariness. Since there was down-grading of the first respondent for the assessment year 2004, the first respondent was not included in the Select List. On overall assessment of service records, the name of the first respondent was not included in the
Select List due to the statutory limit of its size and as officers with higher grading in the Select List were available as per the provisions of Regulation 5(5) of the Regulations. The High Court was not right in holding that the Selection Committee has miserably failed to assess all the aspects of the case in their proper perspective and that the promotions made to the IAS for the vacancies of the year 2004 is vitiated and the same is to be reviewed. The impugned judgment of the High Court cannot be sustained and is liable to be set aside.
Insofar as the challenge by the first respondent to G.O. Ms. No.1125 dated 26.11.2011, the same shall be considered on its own merits without being influenced by any of the views expressed in this judgment.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4626 OF 2009
UNION PUBLIC SERVICE COMMISSION ...Appellant
VERSUS
JAWAHAR SANTHKUMAR AND OTHERS …Respondents
With
CIVIL APPEAL NO.4628 OF 2009
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the impugned judgment dated
17.04.2008 passed by the High Court of Madras in Writ Petition
No.33696 of 2007 in and by which the High Court set aside the
order of the Tribunal and directed the appellants and Union of India
(DoPT) to convene a Selection Committee Meeting for reviewing the
promotions made to the Indian Administrative Service (IAS) for the
year 2004 and promote the first respondent herein to the IAS from
the date when his juniors were promoted with all the consequential
benefits.
2. Brief facts which led to filing of these appeals are as under:-
1
A meeting of the Selection Committee for promotion to the IAS
of Tamil Nadu Cadre for the year 2004 was held on 18.12.2004
against three vacancies as determined by the Central Government.
The name of the first respondent was considered by the said
Committee along with the names of respondent Nos.4 and 5. The
position in the Eligibility List (EL), Selection List (SL) and the overall
relative assessment (ORA) as assigned by the Selection Committee
in respect of the first respondent vis-à-vis that of the officers
included in the Select List are as under:-
Year Respondent
No.1’s Position
Name & Position of Selected Officers
SL 2004 Name EL ORA SL
Vacancy: 03 In EL: S.No.04 TK Ponnusamy* 01 Very Good 01
Size of SL: 03 ORA: Good N Mathivanan 02 Very Good 02
Zone of Consideration: 09 In SL: Not included Smt. R. Vasuki 03 Very Good 03
*Included provisionally subject to clearance
in Criminal Proceedings pending against him
and grant of Integrity Certificate by the State
Government.
The first respondent was duly considered for promotion in the year
2004 and assessed as “Good” for that year. However, on the basis
of overall relative assessment, the first respondent’s name could not
be included in the Select List of 2004 due to lower grading and also
due to the statutory limit on the size of the Select List. Respondent
Nos.4 and 5 who were included in the Select List have been
appointed by the Government of India by Notification dated
29.04.2005.
2
3. Aggrieved by his non-appointment to the IAS, the first
respondent filed OA No.749 of 2006 before the Central
Administrative Tribunal (CAT), Madras Bench. The said application
was dismissed by the Tribunal vide order dated 31.08.2007 holding
that the first respondent’s name was included by the State
Government in the list of officers eligible for consideration for the
year 2004 and accordingly, the Selection Committee considered the
first respondent’s ACRs and made a relative assessment of all the
officers under consideration. The Tribunal pointed out that the
Selection Committee makes its own assessment on the basis of
entries made in the various columns and after discussion within the
Committee, finally arrives at a classification “Outstanding”, “Very
Good”, “Good” and “Unfit” to be assigned to an officer. Finding no
irregularity by the Selection Committee in making the relative
assessment, the Tribunal dismissed the application filed by the first
respondent. The first respondent then filed review application in RA
No.27 of 2007 in OA No.749 of 2006 seeking review of the
Tribunal’s order dated 31.08.2007 and the said review petition came
to be dismissed by the Tribunal vide order dated 03.10.2007.
4. Aggrieved by the dismissal of his application, the first
respondent filed writ petition in WP No.33696 of 2007. The High
Court held that the Tribunal by its order dated 26.06.2002 directed
3
for fixation of the first respondent’s seniority in the cadre of District
Revenue Officer; but the seniority of the first respondent was not
refixed within a reasonable time by the State Government and the
first respondent’s seniority was refixed vide G.O.Ms. No.924 dated
05.09.2005 with a long and unexplained delay of 39 months which
is unfair and thus, has caused much prejudice to the first
respondent since in the meantime his juniors namely respondent
Nos. 4 and 5 were promoted to the IAS. The High Court also held
that as per Regulation 5(5), the classification of an individual by the
Selection Committee is very crucial and for the year 2003, the
overall assessment of the first respondent had been adjudged as
“Very Good” by the Committee; whereas the overall assessment of
the first respondent pertaining to Select List of 2004 was just “Good”
and there was no reason whatsoever as to why suddenly the first
respondent has been down-graded in his overall rating. The High
Court also pointed out that for another person by name Shri T.K.
Ponnusamy who was rated “Unfit” in 2003, was rated as “Very
Good” in 2004 and there is no reason for such sudden hike in the
classification/overall rating of Shri T.K. Ponnusamy. The High Court
held that when T.K. Ponnusamy against whom criminal case was
pending, was preferred over the first respondent for inclusion in the
Select List, the same cannot be appreciated. The High Court set
4
aside the order of the Tribunal by holding that the Selection
Committee and the Tribunal failed to assess all the aspects of the
case in their proper perspective and directed the appellant and
respondent Nos.2 and 3 to convene a Selection Committee Meeting
for reviewing the promotions made to the IAS for the year 2004 and
promote the first respondent to the IAS from the date when his
juniors were promoted with all the consequential benefits.
5. Being aggrieved, Union Public Service Commission (UPSC)
and the Government of Tamil Nadu have preferred these appeals.
When the appeals were taken up for hearing, it was brought to the
notice of this Court that the first respondent has been dismissed
from the service vide G.O.Ms. No.1125 dated 26.11.2011 on the
allegation of possession of disproportionate assets and also on the
ground of his involvement in a criminal case in Crime No.37 of 2008
registered against him by the Vigilance and Anti-Corruption Unit,
Trichy.
6. Mr. S. Satyam Reddy, the learned Senior counsel appearing
for the first respondent submitted that the first respondent has
challenged the order of dismissal from service dated 26.11.2011 by
filing a writ petition in WP No.28724 of 2011. It was stated that the
High Court has quashed the said dismissal order dated 26.11.2011
and the matter has been remanded back to the authorities for
5
consideration afresh. Since the above G.O.Ms. No.1125 dated
26.11.2011 is a subsequent event, we have considered the present
appeals independently on its own merit.
7. Assailing the impugned judgment, Ms. Binu Tamta, learned
counsel appearing for the appellant-UPSC submitted that the High
Court erred in holding that had the first respondent’s seniority been
fixed within reasonable time, the first respondent would have been
promoted to the IAS. It was further submitted that the mere fact that
the first respondent was eligible and there was no case pending
against him does not ipso facto imply that his name should have
been included in the Select List. The learned counsel further
submitted that the selection from the State Civil Service Officers to
IAS is strictly on the basis of merit, ability and suitability of the
candidates and seniority is considered only where merit, ability and
suitability are approximately equal. Placing reliance upon UPSC v.
K. Rajaiah and others (2005) 10 SCC 15, the learned counsel for
the appellant submitted that the Selection Committee can evolve its
own classification which may be at variance with the gradation given
in the ACRs and the High Court could not have faulted the
classification of the first respondent for the year 2004 as “Good”.
The learned counsel further submitted that inclusion of Shri T.K.
Ponnusamy against whom criminal case was pending in the Select
6
List in terms of Regulation 5(5), was only provisional and the same
could not have been faulted by the High Court.
8. Reiterating the above submissions, Mr. Yogesh Kanna,
learned counsel appearing for the State of Tamil Nadu contended
that the High Court was not right in holding that the authorities
concerned acted with prejudicial attitude and that an illegality was
perpetuated on the first respondent.
9. The learned Senior counsel for the first respondent submitted
that when the State Administrative Tribunal by its order dated
26.06.2002 restored the seniority of the first respondent making him
senior to respondent Nos.4 and 5, the State Government
deliberately delayed issuance of the order fixing the seniority of the
first respondent and the first respondent’s seniority was fixed by
G.O.Ms. No.924 dated 05.09.2005 but in the meanwhile,
respondent Nos.4 and 5 were promoted to the IAS pursuant to the
Select List of 2004 by the same order G.O.Ms. No.924 dated
05.09.2005. It was submitted that the long and unexplained delay
of 39 months in refixing the seniority of the first respondent is unfair
and the same caused serious prejudice to the first respondent. The
learned Senior counsel further submitted that Regulation 5(2)
stipulates that the Selection Committee shall consider the cases of
Members of the State Civil Services in the order of seniority and the
7
High Court has rightly held that the seniority would influence the
process of selection. It was further submitted that no reasons have
been assigned by the Selection Committee for down-grading the
first respondent from “Very Good” to “Good”. The learned Senior
counsel submitted that a person with tainted antecedents (Shri T.K.
Ponnusamy) had been rated as “Very Good”; whereas on earlier
occasion, he was found “Unfit”, and there were no valid reasons for
down-grading the first respondent from “Very Good” to “Good”. The
High Court, therefore, rightly held that the findings of the Selection
Committee are vitiated on account of non-application of mind and
rightly issued the directions to the appellants to convene a Selection
Committee Meeting for reviewing the promotions made to the IAS
for the year 2004.
10. We have considered the submissions of both sides and
carefully perused the impugned judgment and other materials on
record. The point falling for consideration is whether the High Court
was right in holding that the Selection Committee did not follow the
uniform standards in classifying individual officers which has a direct
bearing on their selection to the IAS. Yet another point falling for
consideration is whether the High Court was right in directing the
appellant to convene a Review Selection Committee Meeting and
8
promote the first respondent to the IAS from the date his juniors
were promoted with all consequential benefits.
11. All India Services Act, 1951 has been enacted for the purpose
of regulating the recruitment and conditions of service of persons
belonging to the Indian Administrative Services. Under Section 3 of
the said Act, the Central Government has framed the IAS
(Appointment by Promotion) Regulations, 1955 (Promotion
Regulations). In accordance with the provisions of the said
Promotion Regulations, the Selection Committee, presided over by
the Chairman/Member of the UPSC makes selection of the State
Civil Service Officers for promotion to the Indian Administrative
Service. In Regulation 5(1) of the Promotion Regulations, the
number of vacancies against which selection is to be made for a
particular recruitment year for promotion to the Indian Administrative
Service of the State Cadre is determined by the Government of
India (DoPT) in consultation with the State Government concerned.
Thereafter, the State Government forwards a proposal to the
Commission along with seniority list, eligibility list (three times the
number of vacancies) of the State Service Officers, integrity
certificates, details regarding disciplinary proceedings and details of
penalties imposed on the eligible officers etc. and complete ACR
dossiers of the eligible officers. When the Selection Committee
9
meet for selection for the recruitment year, the above documents
are placed before the Selection Committee in accordance with the
provisions of Regulation 5(4) of the Promotion Regulations. The
Committee duly classifies the eligible State Civil Service Officers
included in the zone of consideration as “Outstanding”, “Very Good”,
“Good” or “Unfit”, as the case may be, on an overall relative
assessment of their service records. Thereafter, as per the
provisions of Regulation 5(5) of the Promotion Regulations, the
Selection Committee prepares a list by including the required
number of names firstly from the officers finally classified as
“Outstanding”, then from amongst those similarly classified as “Very
Good” and thereafter, from amongst those officers classified as
“Good”. The relevant part of the Regulations 5(4) and 5(5) reads as
under:-
“5(4). The Selection Committee shall classify the eligible officers as
“Outstanding’, ‘Very Good’, ‘Good’ and ‘Unfit’ as the case may be on an
overall relative assessment of their service records.
5(5). The List shall be prepared by including the required number of
names first from 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.”
10
12. While assessing the suitability of the officers for promotion, the
Selection Committee, as per the uniform and consistent practice
followed in the matter of induction to the All India Services,
examines the service records of each of the eligible officers, with
special reference to the performance of the officers during the last
five years (preceding the year for which the Select List is being
prepared), deliberating on the quality of the officer as indicated in
the various columns recorded by the reporting/reviewing/accepting
authority in the ACRs for different years and then after detailed
mutual deliberation and discussion, finally arrives at a classification
to be assigned to each officer.
13. While doing so, the Selection Committee determines the
overall grading recorded in the Confidential Reports (CRs) to ensure
that the overall grading in the CRs is not inconsistent with the
grading/remarks under various specific parameters or attributes.
The Selection Committee takes into account orders regarding
appreciation for the meritorious works done by the officers
concerned and also keeps in view the orders awarding penalties or
any adverse remarks duly communicated to the officer, which, even
after due consideration of his representation are not expunged. The
UPSC after taking into consideration the records received from the
State Government under Regulation 6 and the observation of the
11
Central Government received under Regulation 6A of the Promotion
Regulations, takes a final decision on the recommendations of the
Selection Committee in accordance with the provisions of
Regulation 7 of the Promotion Regulations. The selection of the
State Civil Service Officers for promotion to IAS is made in a fair
and objective manner on the basis of relevant records and following
the relevant Rules and Regulations. The above procedure is
uniformly followed for all the States/Cadres in the matter of
induction to All India Services.
14. Insofar as the present case, the first respondent’s name was
included by the State Government in the list of officers eligible for
consideration for the year 2004. Accordingly, the Selection
Committee also considered the ACRs and made a relative
assessment to all the officers under consideration. The name of the
first respondent could not be included in the Select List of the year
2004 as the overall grading given to him by the Selection
Committee was lower and there were only three vacancies. Since
the name of the first respondent could not be included in the Select
List for promotion to the IAS Cadre in the year 2004, the first
respondent was not considered for promotion.
15. Contention of the first respondent is that though Shri T.K.
Ponnusamy was having criminal case, his name was included in the
12
Select List and when the person having criminal case was included
in the Select List, the name of the first respondent ought to have
been included. The High Court also held that Shri T.K. Ponnusamy
who was classified as “Unfit” for the Select List 2003 has been
adjudged as “Very Good” for the Select List 2004 and the sudden
hike in the classification/overall rating of Mr. T.K. Ponnusamy has
been remained unanswered throughout.
16. Of course, Shri T.K. Ponnusamy was having a criminal case;
but as noted above, he was included provisionally in the Select List
2004 subject to his clearance in the criminal case pending against
him and grant of integrity certificate by the State Government and
such an officer who is included in the zone of consideration has to
be considered even if disciplinary proceedings are pending against
him. We find substance in the contention of the appellant-UPSC
that the Selection Committee acted strictly in accordance with the
Regulations which are statutory in nature and the selection of
respondent Nos.2 and 3 does not, therefore, suffer from any
violation of statutory rules.
17. Selection from the State Civil Service to IAS is strictly on the
basis of merit, ability and suitability of the officers. In M.V.
Thimmaiah and others v. Union Public Service Commission and
others (2008) 2 SCC 119, it was held as under:-
13
“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…….
……..
36. Therefore, in view of a catena of cases, courts normally do not sit as
a court of appeal to assess ACRs and much less the Tribunal can be
given this power to constitute an independent Selection Committee over
the statutory Selection Committee. The guidelines have already been
given by the Commission as to how ACRs to be assessed and how the
marking has to be made. These guidelines take care of the proper
scrutiny and not only by the Selection Committee but also the views of
the State Government are obtained and ultimately the Commission after
scrutiny prepares the final list which is sent to the Central Government
for appointment. There also it is not binding on the Central Government
to appoint all the persons as recommended and the Central Government
can withhold the appointment of some persons so mentioned in the
select list for reasons recorded. ……. This assessment cannot be made
subject of court’s or Tribunal’s scrutiny unless actuated by mala fide.
37. …… The Selection Committee normally abides by the assessment
made by the reporting officer and the reviewing authority. But the
Selection Committee is not powerless. After reviewing the candidates’
performance, the Selection Committee can certainly make its own
assessment. The guidelines which have been issued by the Commission
also enable the Selection Committee to assess the remarks made by the
reporting officer or the reviewing officer and after taking into
consideration various factors like the meritorious work done or any
punishment or adverse remarks made or subsequently expunged on
representation can review the assessment about the candidates. Such
14
review of the assessment is fully within the competence of the Selection
Committee …...”
18. As pointed out earlier, the first respondent has been ordered
to be promoted to the cadre of DRO by the order of the State
Tribunal dated 26.06.2002. But the first respondent’s seniority was
refixed on 05.09.2005 vide G.O.Ms. No.924. Of course, the first
respondent’s seniority was refixed by the State Government
subsequent to the Selection Committee Meeting for 2004. The High
Court held that had the first respondent’s seniority been fixed within
reasonable time as per the direction of the Tribunal, the first
respondent’s classification/overall rating would have been correctly
assessed by the Selection Committee. The High Court further held
that when a candidate of doubtful integrity was considered,
definitely, the first respondent would have also been considered and
promoted to the IAS and only because of the delayed action of the
State Government or improper action of the Selection Committee,
the prospect of the genuine candidate should not be put at stake.
With those findings, the High Court took the view that the first
respondent has been victimised for the simple reason that he has
approached the legal forum for redressal of his genuine grievances.
19. The learned Senior counsel for the first respondent has
reiterated the findings of the High Court and submitted that the High
15
Court rightly observed that non-fixation of seniority as directed by
the Tribunal within a reasonable time has prejudicially affected the
case of the first respondent in getting his promotion. The learned
Senior counsel submitted that as per Regulation 5(2), for inclusion
in the Select List, the Committee shall consider the cases of
members of State Civil Service in the order of seniority and only
because of delay in refixation of the seniority, name of the first
respondent could not be included in the Select List.
20. We find no merit in the above contention of the first
respondent that his seniority would have enabled his name to be
included in the Select List. As discussed earlier, gradation is made
by the Selection Committee on the merits based on the relative
assessment. Seniority would become relevant only when the merit
of the candidates is equal. Observing that the seniority is
considered only where merit, ability and suitability are approximately
equal, in R.S. Dass v. Union of India and others 1986 (Supp) SCC
617, the Supreme Court held as under:-
“18. The amended provisions of Regulation 5 have curtailed and
restricted the role of seniority in the process of selection as it has given
primacy to merit. Now the Committee is required to categorise the
eligible Officers in four different categories, namely “Outstanding”, “Very
Good”, “Good” and “Unfit” on overall relative assessment of their service
records. After categorisation is made the Committee has to arrange the
names of officers in the Select List in accordance with the procedure laid
16
down in Regulation 5(5). In arranging the names in the Select List the
Committee has to follow the inter se seniority of officers within each
category. If there are five officers who fall within the “Outstanding”
category their names shall be arranged in the order having regard to
their inter se seniority in the State Civil Service. The same principle is
followed in arranging the list from amongst the officers falling in the
category of “Very Good” and “Good”. Similarly if a junior officer’s name
finds place in the category of “Outstanding”, he would be placed higher
in the list in preference to a senior officer included in the “Very Good” or
“Good” category. In this process a junior officer if categorised
“Outstanding” or “Very Good” would supersede his seniors. This cannot
be helped. Where selection is made on merit alone for promotion to a
higher service, selection of an officer though junior in service in
preference to his senior does not strictly amount to supersession. Where
promotion is made on the basis of seniority, the senior has preferential
right to promotion against his juniors but where promotion is made on
merit alone, senior officer has no legal right to promotion and if juniors to
him are selected for promotion on merit the senior officer is not legally
superseded. When merit is the criteria for the selection amongst the
members of the service, no officer has legal right to be selected for
promotion, except that he has only right to be considered along with
others. In Gurdayal Singh Fiji v. State of Punjab (1981) 4 SCC 419 this
Court held that a member of State Civil Service has no legal right to
promotion, instead he has only right to be considered along with others.
But assuming that appellants/petitioners stood superseded by the
reason that junior officers to them were included in the Select List, no
reasons were necessary to be recorded in view of the amended statutory
provisions.”
21. Re: Contention regarding down-grading and nonrecording of reasons:- From the UPSC File No.F.6/18/2003-AIS,
dated 24.12.2003, pertaining to the Select List of 2003, the ‘overall
17
relative assessment’ of the first respondent had been adjudged as
“Very Good” by the Committee. But, as per UPSC File
No.F.6/18/2004-AIS dated 18.12.2004 pertaining to the Select List
of 2004, the ‘overall relative assessment’ of the first respondent has
been adjudged just as “Good”. The High Court held that there was
no reason recorded as to why suddenly the first respondent has
been down-graded in his classification/overall rating. The High
Court has also pointed out that Shri T.K. Ponnusamy who was
classified as “Unfit” for the Select List of 2003, has been adjudged
“Very Good” for the Select List of 2004 which shows that the
Selection Committee was not following uniform standard in
classifying/overall rating of the assessment of the individual which
has a direct bearing on their selection to the IAS.
22. Power to classify the candidates is the function of the
Selection Committee. In the process of selection under Regulations
5(4) and 5(5) of the Promotion Regulations, the Selection
Committee is not required to record reasons by assigning overall
relative assessment in respect of the eligible officers or for selecting
a junior officer, having higher merit, in preference to that of a senior
officer. In R.S. Dass v. Union of India and others 1986 (Supp) SCC
617, the Supreme Court held that when any senior officer is
superseded, the amended Regulation 5(5) does not require the
18
Committee to record reasons for the supersession and that the
amended Regulations do not require the Selection Committee to
record reasons for the supersession of the officers of the State Civil
Service.
23. After referring to R.S. Dass, in K. Rajaiah, the Supreme Court
held as under:-
“9. We cannot also endorse the view taken by the High Court that
consistent with the principle of fair play, the Selection Committee ought
to have recorded reasons while giving a lesser grading to the first
respondent. The High Court relied on the decision of this Court in
National Institute of Mental Health & Neuro Sciences v. Dr. K. Kalyana
Raman 1992 Supp (2) SCC 481. Far from supporting the view taken by
the High Court, the said decision laid down the proposition that the
function of the Selection Committee being administrative in nature, it is
under no obligation to record the reasons for its decision when there is
no rule or regulation obligating the Selection Committee to record the
reasons. This Court then observed: (SCC p. 485, para 7)
“Even the principles of natural justice do not require an
administrative authority or a Selection Committee or an examiner
to record reasons for the selection or non-selection of a person in
the absence of statutory requirement. This principle has been
stated by this Court in R.S. Dass v. Union of India 1986 Supp
SCC 617 (SCC at p. 633)….”
…………
That being the legal position, the Court should not have faulted the socalled down gradation of the first respondent for one of the years.
Legally speaking, the term “downgradation” is an inappropriate
expression. The power to classify as “outstanding”, “very good”, “good”
and “unfit” is vested with the Selection Committee. That is a function
incidental to the selection process. The classification given by the State
19
Government authorities in the ACRs is not binding on the Committee. No
doubt, the Committee is by and large guided by the classification
adopted by the State Government but, for good reasons, the Selection
Committee can evolve its own classification which may be at variance
with the gradation given in the ACRs. That is what has been done in the
instant case in respect of the year 1993-94. Such classification is within
the prerogative of the Selection Committee and no reasons need be
recorded, though it is desirable that in a case of gradation at variance
with that of the State Government, it would be desirable to record
reasons. But having regard to the nature of the function and the power
confided to the Selection Committee under Regulation 5(4), it is not a
legal requirement that reasons should be recorded for classifying an
officer at variance with the State Government’s decision.” [Underlining
added]
24. The ratio of the above decision squarely applies to the case in
hand. When the Selection Committee has given its own
classification, the court cannot sit in appeal over the assessment
made by the Committee of experts. In Union Public Service
Commission v. M. Sathiya Priya and others (2018) 15 SCC 796, the
Supreme Court held as under:-
“17. The Selection Committee consists of experts in the field. It is
presided over by the Chairman or a Member of UPSC and is duly
represented by the officers of the Central Government and the State
Government who have expertise in the matter. In our considered opinion,
when a High-Level Committee or an expert body has considered the
merit of each of the candidates, assessed the grading and considered
their cases for promotion, it is not open to CAT and the High Court to sit
over the assessment made by the Selection Committee as an appellate
authority. The question as to how the categories are assessed in light of
20
the relevant records and as to what norms apply in making the
assessment, is exclusively to be determined by the Selection
Committee. Since the jurisdiction to make selection as per law is vested
in the Selection Committee and as the Selection Committee members
have got expertise in the matter, it is not open for the courts generally to
interfere in such matters except in cases where the process of
assessment is vitiated either on the ground of bias, mala fides or
arbitrariness. It is not the function of the court to hear the matters before
it treating them as appeals over the decisions of the Selection
Committee and to scrutinise the relative merit of the candidates. The
question as to whether a candidate is fit for a particular post or not has to
be decided by the duly constituted expert body i.e. the Selection
Committee. The courts have very limited scope of judicial review in such
matters.” [Underlining added]
25. In the present case, we find that neither the decision of the
Selection Committee nor the decision-making process suffers from
any arbitrariness. Since there was down-grading of the first
respondent for the assessment year 2004, the first respondent was
not included in the Select List. On overall assessment of service
records, the name of the first respondent was not included in the
Select List due to the statutory limit of its size and as officers with
higher grading in the Select List were available as per the provisions
of Regulation 5(5) of the Regulations. The High Court was not right
in holding that the Selection Committee has miserably failed to
assess all the aspects of the case in their proper perspective and
that the promotions made to the IAS for the vacancies of the year
21
2004 is vitiated and the same is to be reviewed. The impugned
judgment of the High Court cannot be sustained and is liable to be
set aside.
26. In the result, the impugned judgment dated 17.04.2008
passed by the High Court of Madras in Writ Petition No.33696 of
2007 is set aside and these appeals are allowed. Insofar as the
challenge by the first respondent to G.O. Ms. No.1125 dated
26.11.2011, the same shall be considered on its own merits without
being influenced by any of the views expressed in this judgment.
………………………..J.
[R. BANUMATHI]
………………………..J.
[A.S. BOPANNA]
….………………………..J.
[HRISHIKESH ROY]
New Delhi;
November 15, 2019
22
the High Court of Madras in Writ Petition No.33696 of 2007 , set aside the order of the Tribunal and directed the appellants and Union of India (DoPT) to convene a Selection Committee Meeting for reviewing the promotions made to the Indian Administrative Service (IAS) for the year 2004 and promote the first respondent herein to the IAS from the date when his juniors were promoted with all the consequential benefits.=
The question as to how the categories are assessed in light of the relevant records and as to what norms apply in making the assessment, is exclusively to be determined by the Selection
Committee.
Since the jurisdiction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness.
It is not the function of the court to hear the matters before it treating them as appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The
question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body i.e. the Selection Committee. The courts have very limited scope of judicial review in such matters.” [Underlining added]
In the present case, we find that neither the decision of the Selection Committee nor the decision-making process suffers from any arbitrariness. Since there was down-grading of the first respondent for the assessment year 2004, the first respondent was not included in the Select List. On overall assessment of service records, the name of the first respondent was not included in the
Select List due to the statutory limit of its size and as officers with higher grading in the Select List were available as per the provisions of Regulation 5(5) of the Regulations. The High Court was not right in holding that the Selection Committee has miserably failed to assess all the aspects of the case in their proper perspective and that the promotions made to the IAS for the vacancies of the year 2004 is vitiated and the same is to be reviewed. The impugned judgment of the High Court cannot be sustained and is liable to be set aside.
Insofar as the challenge by the first respondent to G.O. Ms. No.1125 dated 26.11.2011, the same shall be considered on its own merits without being influenced by any of the views expressed in this judgment.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4626 OF 2009
UNION PUBLIC SERVICE COMMISSION ...Appellant
VERSUS
JAWAHAR SANTHKUMAR AND OTHERS …Respondents
With
CIVIL APPEAL NO.4628 OF 2009
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the impugned judgment dated
17.04.2008 passed by the High Court of Madras in Writ Petition
No.33696 of 2007 in and by which the High Court set aside the
order of the Tribunal and directed the appellants and Union of India
(DoPT) to convene a Selection Committee Meeting for reviewing the
promotions made to the Indian Administrative Service (IAS) for the
year 2004 and promote the first respondent herein to the IAS from
the date when his juniors were promoted with all the consequential
benefits.
2. Brief facts which led to filing of these appeals are as under:-
1
A meeting of the Selection Committee for promotion to the IAS
of Tamil Nadu Cadre for the year 2004 was held on 18.12.2004
against three vacancies as determined by the Central Government.
The name of the first respondent was considered by the said
Committee along with the names of respondent Nos.4 and 5. The
position in the Eligibility List (EL), Selection List (SL) and the overall
relative assessment (ORA) as assigned by the Selection Committee
in respect of the first respondent vis-à-vis that of the officers
included in the Select List are as under:-
Year Respondent
No.1’s Position
Name & Position of Selected Officers
SL 2004 Name EL ORA SL
Vacancy: 03 In EL: S.No.04 TK Ponnusamy* 01 Very Good 01
Size of SL: 03 ORA: Good N Mathivanan 02 Very Good 02
Zone of Consideration: 09 In SL: Not included Smt. R. Vasuki 03 Very Good 03
*Included provisionally subject to clearance
in Criminal Proceedings pending against him
and grant of Integrity Certificate by the State
Government.
The first respondent was duly considered for promotion in the year
2004 and assessed as “Good” for that year. However, on the basis
of overall relative assessment, the first respondent’s name could not
be included in the Select List of 2004 due to lower grading and also
due to the statutory limit on the size of the Select List. Respondent
Nos.4 and 5 who were included in the Select List have been
appointed by the Government of India by Notification dated
29.04.2005.
2
3. Aggrieved by his non-appointment to the IAS, the first
respondent filed OA No.749 of 2006 before the Central
Administrative Tribunal (CAT), Madras Bench. The said application
was dismissed by the Tribunal vide order dated 31.08.2007 holding
that the first respondent’s name was included by the State
Government in the list of officers eligible for consideration for the
year 2004 and accordingly, the Selection Committee considered the
first respondent’s ACRs and made a relative assessment of all the
officers under consideration. The Tribunal pointed out that the
Selection Committee makes its own assessment on the basis of
entries made in the various columns and after discussion within the
Committee, finally arrives at a classification “Outstanding”, “Very
Good”, “Good” and “Unfit” to be assigned to an officer. Finding no
irregularity by the Selection Committee in making the relative
assessment, the Tribunal dismissed the application filed by the first
respondent. The first respondent then filed review application in RA
No.27 of 2007 in OA No.749 of 2006 seeking review of the
Tribunal’s order dated 31.08.2007 and the said review petition came
to be dismissed by the Tribunal vide order dated 03.10.2007.
4. Aggrieved by the dismissal of his application, the first
respondent filed writ petition in WP No.33696 of 2007. The High
Court held that the Tribunal by its order dated 26.06.2002 directed
3
for fixation of the first respondent’s seniority in the cadre of District
Revenue Officer; but the seniority of the first respondent was not
refixed within a reasonable time by the State Government and the
first respondent’s seniority was refixed vide G.O.Ms. No.924 dated
05.09.2005 with a long and unexplained delay of 39 months which
is unfair and thus, has caused much prejudice to the first
respondent since in the meantime his juniors namely respondent
Nos. 4 and 5 were promoted to the IAS. The High Court also held
that as per Regulation 5(5), the classification of an individual by the
Selection Committee is very crucial and for the year 2003, the
overall assessment of the first respondent had been adjudged as
“Very Good” by the Committee; whereas the overall assessment of
the first respondent pertaining to Select List of 2004 was just “Good”
and there was no reason whatsoever as to why suddenly the first
respondent has been down-graded in his overall rating. The High
Court also pointed out that for another person by name Shri T.K.
Ponnusamy who was rated “Unfit” in 2003, was rated as “Very
Good” in 2004 and there is no reason for such sudden hike in the
classification/overall rating of Shri T.K. Ponnusamy. The High Court
held that when T.K. Ponnusamy against whom criminal case was
pending, was preferred over the first respondent for inclusion in the
Select List, the same cannot be appreciated. The High Court set
4
aside the order of the Tribunal by holding that the Selection
Committee and the Tribunal failed to assess all the aspects of the
case in their proper perspective and directed the appellant and
respondent Nos.2 and 3 to convene a Selection Committee Meeting
for reviewing the promotions made to the IAS for the year 2004 and
promote the first respondent to the IAS from the date when his
juniors were promoted with all the consequential benefits.
5. Being aggrieved, Union Public Service Commission (UPSC)
and the Government of Tamil Nadu have preferred these appeals.
When the appeals were taken up for hearing, it was brought to the
notice of this Court that the first respondent has been dismissed
from the service vide G.O.Ms. No.1125 dated 26.11.2011 on the
allegation of possession of disproportionate assets and also on the
ground of his involvement in a criminal case in Crime No.37 of 2008
registered against him by the Vigilance and Anti-Corruption Unit,
Trichy.
6. Mr. S. Satyam Reddy, the learned Senior counsel appearing
for the first respondent submitted that the first respondent has
challenged the order of dismissal from service dated 26.11.2011 by
filing a writ petition in WP No.28724 of 2011. It was stated that the
High Court has quashed the said dismissal order dated 26.11.2011
and the matter has been remanded back to the authorities for
5
consideration afresh. Since the above G.O.Ms. No.1125 dated
26.11.2011 is a subsequent event, we have considered the present
appeals independently on its own merit.
7. Assailing the impugned judgment, Ms. Binu Tamta, learned
counsel appearing for the appellant-UPSC submitted that the High
Court erred in holding that had the first respondent’s seniority been
fixed within reasonable time, the first respondent would have been
promoted to the IAS. It was further submitted that the mere fact that
the first respondent was eligible and there was no case pending
against him does not ipso facto imply that his name should have
been included in the Select List. The learned counsel further
submitted that the selection from the State Civil Service Officers to
IAS is strictly on the basis of merit, ability and suitability of the
candidates and seniority is considered only where merit, ability and
suitability are approximately equal. Placing reliance upon UPSC v.
K. Rajaiah and others (2005) 10 SCC 15, the learned counsel for
the appellant submitted that the Selection Committee can evolve its
own classification which may be at variance with the gradation given
in the ACRs and the High Court could not have faulted the
classification of the first respondent for the year 2004 as “Good”.
The learned counsel further submitted that inclusion of Shri T.K.
Ponnusamy against whom criminal case was pending in the Select
6
List in terms of Regulation 5(5), was only provisional and the same
could not have been faulted by the High Court.
8. Reiterating the above submissions, Mr. Yogesh Kanna,
learned counsel appearing for the State of Tamil Nadu contended
that the High Court was not right in holding that the authorities
concerned acted with prejudicial attitude and that an illegality was
perpetuated on the first respondent.
9. The learned Senior counsel for the first respondent submitted
that when the State Administrative Tribunal by its order dated
26.06.2002 restored the seniority of the first respondent making him
senior to respondent Nos.4 and 5, the State Government
deliberately delayed issuance of the order fixing the seniority of the
first respondent and the first respondent’s seniority was fixed by
G.O.Ms. No.924 dated 05.09.2005 but in the meanwhile,
respondent Nos.4 and 5 were promoted to the IAS pursuant to the
Select List of 2004 by the same order G.O.Ms. No.924 dated
05.09.2005. It was submitted that the long and unexplained delay
of 39 months in refixing the seniority of the first respondent is unfair
and the same caused serious prejudice to the first respondent. The
learned Senior counsel further submitted that Regulation 5(2)
stipulates that the Selection Committee shall consider the cases of
Members of the State Civil Services in the order of seniority and the
7
High Court has rightly held that the seniority would influence the
process of selection. It was further submitted that no reasons have
been assigned by the Selection Committee for down-grading the
first respondent from “Very Good” to “Good”. The learned Senior
counsel submitted that a person with tainted antecedents (Shri T.K.
Ponnusamy) had been rated as “Very Good”; whereas on earlier
occasion, he was found “Unfit”, and there were no valid reasons for
down-grading the first respondent from “Very Good” to “Good”. The
High Court, therefore, rightly held that the findings of the Selection
Committee are vitiated on account of non-application of mind and
rightly issued the directions to the appellants to convene a Selection
Committee Meeting for reviewing the promotions made to the IAS
for the year 2004.
10. We have considered the submissions of both sides and
carefully perused the impugned judgment and other materials on
record. The point falling for consideration is whether the High Court
was right in holding that the Selection Committee did not follow the
uniform standards in classifying individual officers which has a direct
bearing on their selection to the IAS. Yet another point falling for
consideration is whether the High Court was right in directing the
appellant to convene a Review Selection Committee Meeting and
8
promote the first respondent to the IAS from the date his juniors
were promoted with all consequential benefits.
11. All India Services Act, 1951 has been enacted for the purpose
of regulating the recruitment and conditions of service of persons
belonging to the Indian Administrative Services. Under Section 3 of
the said Act, the Central Government has framed the IAS
(Appointment by Promotion) Regulations, 1955 (Promotion
Regulations). In accordance with the provisions of the said
Promotion Regulations, the Selection Committee, presided over by
the Chairman/Member of the UPSC makes selection of the State
Civil Service Officers for promotion to the Indian Administrative
Service. In Regulation 5(1) of the Promotion Regulations, the
number of vacancies against which selection is to be made for a
particular recruitment year for promotion to the Indian Administrative
Service of the State Cadre is determined by the Government of
India (DoPT) in consultation with the State Government concerned.
Thereafter, the State Government forwards a proposal to the
Commission along with seniority list, eligibility list (three times the
number of vacancies) of the State Service Officers, integrity
certificates, details regarding disciplinary proceedings and details of
penalties imposed on the eligible officers etc. and complete ACR
dossiers of the eligible officers. When the Selection Committee
9
meet for selection for the recruitment year, the above documents
are placed before the Selection Committee in accordance with the
provisions of Regulation 5(4) of the Promotion Regulations. The
Committee duly classifies the eligible State Civil Service Officers
included in the zone of consideration as “Outstanding”, “Very Good”,
“Good” or “Unfit”, as the case may be, on an overall relative
assessment of their service records. Thereafter, as per the
provisions of Regulation 5(5) of the Promotion Regulations, the
Selection Committee prepares a list by including the required
number of names firstly from the officers finally classified as
“Outstanding”, then from amongst those similarly classified as “Very
Good” and thereafter, from amongst those officers classified as
“Good”. The relevant part of the Regulations 5(4) and 5(5) reads as
under:-
“5(4). The Selection Committee shall classify the eligible officers as
“Outstanding’, ‘Very Good’, ‘Good’ and ‘Unfit’ as the case may be on an
overall relative assessment of their service records.
5(5). The List shall be prepared by including the required number of
names first from 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.”
10
12. While assessing the suitability of the officers for promotion, the
Selection Committee, as per the uniform and consistent practice
followed in the matter of induction to the All India Services,
examines the service records of each of the eligible officers, with
special reference to the performance of the officers during the last
five years (preceding the year for which the Select List is being
prepared), deliberating on the quality of the officer as indicated in
the various columns recorded by the reporting/reviewing/accepting
authority in the ACRs for different years and then after detailed
mutual deliberation and discussion, finally arrives at a classification
to be assigned to each officer.
13. While doing so, the Selection Committee determines the
overall grading recorded in the Confidential Reports (CRs) to ensure
that the overall grading in the CRs is not inconsistent with the
grading/remarks under various specific parameters or attributes.
The Selection Committee takes into account orders regarding
appreciation for the meritorious works done by the officers
concerned and also keeps in view the orders awarding penalties or
any adverse remarks duly communicated to the officer, which, even
after due consideration of his representation are not expunged. The
UPSC after taking into consideration the records received from the
State Government under Regulation 6 and the observation of the
11
Central Government received under Regulation 6A of the Promotion
Regulations, takes a final decision on the recommendations of the
Selection Committee in accordance with the provisions of
Regulation 7 of the Promotion Regulations. The selection of the
State Civil Service Officers for promotion to IAS is made in a fair
and objective manner on the basis of relevant records and following
the relevant Rules and Regulations. The above procedure is
uniformly followed for all the States/Cadres in the matter of
induction to All India Services.
14. Insofar as the present case, the first respondent’s name was
included by the State Government in the list of officers eligible for
consideration for the year 2004. Accordingly, the Selection
Committee also considered the ACRs and made a relative
assessment to all the officers under consideration. The name of the
first respondent could not be included in the Select List of the year
2004 as the overall grading given to him by the Selection
Committee was lower and there were only three vacancies. Since
the name of the first respondent could not be included in the Select
List for promotion to the IAS Cadre in the year 2004, the first
respondent was not considered for promotion.
15. Contention of the first respondent is that though Shri T.K.
Ponnusamy was having criminal case, his name was included in the
12
Select List and when the person having criminal case was included
in the Select List, the name of the first respondent ought to have
been included. The High Court also held that Shri T.K. Ponnusamy
who was classified as “Unfit” for the Select List 2003 has been
adjudged as “Very Good” for the Select List 2004 and the sudden
hike in the classification/overall rating of Mr. T.K. Ponnusamy has
been remained unanswered throughout.
16. Of course, Shri T.K. Ponnusamy was having a criminal case;
but as noted above, he was included provisionally in the Select List
2004 subject to his clearance in the criminal case pending against
him and grant of integrity certificate by the State Government and
such an officer who is included in the zone of consideration has to
be considered even if disciplinary proceedings are pending against
him. We find substance in the contention of the appellant-UPSC
that the Selection Committee acted strictly in accordance with the
Regulations which are statutory in nature and the selection of
respondent Nos.2 and 3 does not, therefore, suffer from any
violation of statutory rules.
17. Selection from the State Civil Service to IAS is strictly on the
basis of merit, ability and suitability of the officers. In M.V.
Thimmaiah and others v. Union Public Service Commission and
others (2008) 2 SCC 119, it was held as under:-
13
“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…….
……..
36. Therefore, in view of a catena of cases, courts normally do not sit as
a court of appeal to assess ACRs and much less the Tribunal can be
given this power to constitute an independent Selection Committee over
the statutory Selection Committee. The guidelines have already been
given by the Commission as to how ACRs to be assessed and how the
marking has to be made. These guidelines take care of the proper
scrutiny and not only by the Selection Committee but also the views of
the State Government are obtained and ultimately the Commission after
scrutiny prepares the final list which is sent to the Central Government
for appointment. There also it is not binding on the Central Government
to appoint all the persons as recommended and the Central Government
can withhold the appointment of some persons so mentioned in the
select list for reasons recorded. ……. This assessment cannot be made
subject of court’s or Tribunal’s scrutiny unless actuated by mala fide.
37. …… The Selection Committee normally abides by the assessment
made by the reporting officer and the reviewing authority. But the
Selection Committee is not powerless. After reviewing the candidates’
performance, the Selection Committee can certainly make its own
assessment. The guidelines which have been issued by the Commission
also enable the Selection Committee to assess the remarks made by the
reporting officer or the reviewing officer and after taking into
consideration various factors like the meritorious work done or any
punishment or adverse remarks made or subsequently expunged on
representation can review the assessment about the candidates. Such
14
review of the assessment is fully within the competence of the Selection
Committee …...”
18. As pointed out earlier, the first respondent has been ordered
to be promoted to the cadre of DRO by the order of the State
Tribunal dated 26.06.2002. But the first respondent’s seniority was
refixed on 05.09.2005 vide G.O.Ms. No.924. Of course, the first
respondent’s seniority was refixed by the State Government
subsequent to the Selection Committee Meeting for 2004. The High
Court held that had the first respondent’s seniority been fixed within
reasonable time as per the direction of the Tribunal, the first
respondent’s classification/overall rating would have been correctly
assessed by the Selection Committee. The High Court further held
that when a candidate of doubtful integrity was considered,
definitely, the first respondent would have also been considered and
promoted to the IAS and only because of the delayed action of the
State Government or improper action of the Selection Committee,
the prospect of the genuine candidate should not be put at stake.
With those findings, the High Court took the view that the first
respondent has been victimised for the simple reason that he has
approached the legal forum for redressal of his genuine grievances.
19. The learned Senior counsel for the first respondent has
reiterated the findings of the High Court and submitted that the High
15
Court rightly observed that non-fixation of seniority as directed by
the Tribunal within a reasonable time has prejudicially affected the
case of the first respondent in getting his promotion. The learned
Senior counsel submitted that as per Regulation 5(2), for inclusion
in the Select List, the Committee shall consider the cases of
members of State Civil Service in the order of seniority and only
because of delay in refixation of the seniority, name of the first
respondent could not be included in the Select List.
20. We find no merit in the above contention of the first
respondent that his seniority would have enabled his name to be
included in the Select List. As discussed earlier, gradation is made
by the Selection Committee on the merits based on the relative
assessment. Seniority would become relevant only when the merit
of the candidates is equal. Observing that the seniority is
considered only where merit, ability and suitability are approximately
equal, in R.S. Dass v. Union of India and others 1986 (Supp) SCC
617, the Supreme Court held as under:-
“18. The amended provisions of Regulation 5 have curtailed and
restricted the role of seniority in the process of selection as it has given
primacy to merit. Now the Committee is required to categorise the
eligible Officers in four different categories, namely “Outstanding”, “Very
Good”, “Good” and “Unfit” on overall relative assessment of their service
records. After categorisation is made the Committee has to arrange the
names of officers in the Select List in accordance with the procedure laid
16
down in Regulation 5(5). In arranging the names in the Select List the
Committee has to follow the inter se seniority of officers within each
category. If there are five officers who fall within the “Outstanding”
category their names shall be arranged in the order having regard to
their inter se seniority in the State Civil Service. The same principle is
followed in arranging the list from amongst the officers falling in the
category of “Very Good” and “Good”. Similarly if a junior officer’s name
finds place in the category of “Outstanding”, he would be placed higher
in the list in preference to a senior officer included in the “Very Good” or
“Good” category. In this process a junior officer if categorised
“Outstanding” or “Very Good” would supersede his seniors. This cannot
be helped. Where selection is made on merit alone for promotion to a
higher service, selection of an officer though junior in service in
preference to his senior does not strictly amount to supersession. Where
promotion is made on the basis of seniority, the senior has preferential
right to promotion against his juniors but where promotion is made on
merit alone, senior officer has no legal right to promotion and if juniors to
him are selected for promotion on merit the senior officer is not legally
superseded. When merit is the criteria for the selection amongst the
members of the service, no officer has legal right to be selected for
promotion, except that he has only right to be considered along with
others. In Gurdayal Singh Fiji v. State of Punjab (1981) 4 SCC 419 this
Court held that a member of State Civil Service has no legal right to
promotion, instead he has only right to be considered along with others.
But assuming that appellants/petitioners stood superseded by the
reason that junior officers to them were included in the Select List, no
reasons were necessary to be recorded in view of the amended statutory
provisions.”
21. Re: Contention regarding down-grading and nonrecording of reasons:- From the UPSC File No.F.6/18/2003-AIS,
dated 24.12.2003, pertaining to the Select List of 2003, the ‘overall
17
relative assessment’ of the first respondent had been adjudged as
“Very Good” by the Committee. But, as per UPSC File
No.F.6/18/2004-AIS dated 18.12.2004 pertaining to the Select List
of 2004, the ‘overall relative assessment’ of the first respondent has
been adjudged just as “Good”. The High Court held that there was
no reason recorded as to why suddenly the first respondent has
been down-graded in his classification/overall rating. The High
Court has also pointed out that Shri T.K. Ponnusamy who was
classified as “Unfit” for the Select List of 2003, has been adjudged
“Very Good” for the Select List of 2004 which shows that the
Selection Committee was not following uniform standard in
classifying/overall rating of the assessment of the individual which
has a direct bearing on their selection to the IAS.
22. Power to classify the candidates is the function of the
Selection Committee. In the process of selection under Regulations
5(4) and 5(5) of the Promotion Regulations, the Selection
Committee is not required to record reasons by assigning overall
relative assessment in respect of the eligible officers or for selecting
a junior officer, having higher merit, in preference to that of a senior
officer. In R.S. Dass v. Union of India and others 1986 (Supp) SCC
617, the Supreme Court held that when any senior officer is
superseded, the amended Regulation 5(5) does not require the
18
Committee to record reasons for the supersession and that the
amended Regulations do not require the Selection Committee to
record reasons for the supersession of the officers of the State Civil
Service.
23. After referring to R.S. Dass, in K. Rajaiah, the Supreme Court
held as under:-
“9. We cannot also endorse the view taken by the High Court that
consistent with the principle of fair play, the Selection Committee ought
to have recorded reasons while giving a lesser grading to the first
respondent. The High Court relied on the decision of this Court in
National Institute of Mental Health & Neuro Sciences v. Dr. K. Kalyana
Raman 1992 Supp (2) SCC 481. Far from supporting the view taken by
the High Court, the said decision laid down the proposition that the
function of the Selection Committee being administrative in nature, it is
under no obligation to record the reasons for its decision when there is
no rule or regulation obligating the Selection Committee to record the
reasons. This Court then observed: (SCC p. 485, para 7)
“Even the principles of natural justice do not require an
administrative authority or a Selection Committee or an examiner
to record reasons for the selection or non-selection of a person in
the absence of statutory requirement. This principle has been
stated by this Court in R.S. Dass v. Union of India 1986 Supp
SCC 617 (SCC at p. 633)….”
…………
That being the legal position, the Court should not have faulted the socalled down gradation of the first respondent for one of the years.
Legally speaking, the term “downgradation” is an inappropriate
expression. The power to classify as “outstanding”, “very good”, “good”
and “unfit” is vested with the Selection Committee. That is a function
incidental to the selection process. The classification given by the State
19
Government authorities in the ACRs is not binding on the Committee. No
doubt, the Committee is by and large guided by the classification
adopted by the State Government but, for good reasons, the Selection
Committee can evolve its own classification which may be at variance
with the gradation given in the ACRs. That is what has been done in the
instant case in respect of the year 1993-94. Such classification is within
the prerogative of the Selection Committee and no reasons need be
recorded, though it is desirable that in a case of gradation at variance
with that of the State Government, it would be desirable to record
reasons. But having regard to the nature of the function and the power
confided to the Selection Committee under Regulation 5(4), it is not a
legal requirement that reasons should be recorded for classifying an
officer at variance with the State Government’s decision.” [Underlining
added]
24. The ratio of the above decision squarely applies to the case in
hand. When the Selection Committee has given its own
classification, the court cannot sit in appeal over the assessment
made by the Committee of experts. In Union Public Service
Commission v. M. Sathiya Priya and others (2018) 15 SCC 796, the
Supreme Court held as under:-
“17. The Selection Committee consists of experts in the field. It is
presided over by the Chairman or a Member of UPSC and is duly
represented by the officers of the Central Government and the State
Government who have expertise in the matter. In our considered opinion,
when a High-Level Committee or an expert body has considered the
merit of each of the candidates, assessed the grading and considered
their cases for promotion, it is not open to CAT and the High Court to sit
over the assessment made by the Selection Committee as an appellate
authority. The question as to how the categories are assessed in light of
20
the relevant records and as to what norms apply in making the
assessment, is exclusively to be determined by the Selection
Committee. Since the jurisdiction to make selection as per law is vested
in the Selection Committee and as the Selection Committee members
have got expertise in the matter, it is not open for the courts generally to
interfere in such matters except in cases where the process of
assessment is vitiated either on the ground of bias, mala fides or
arbitrariness. It is not the function of the court to hear the matters before
it treating them as appeals over the decisions of the Selection
Committee and to scrutinise the relative merit of the candidates. The
question as to whether a candidate is fit for a particular post or not has to
be decided by the duly constituted expert body i.e. the Selection
Committee. The courts have very limited scope of judicial review in such
matters.” [Underlining added]
25. In the present case, we find that neither the decision of the
Selection Committee nor the decision-making process suffers from
any arbitrariness. Since there was down-grading of the first
respondent for the assessment year 2004, the first respondent was
not included in the Select List. On overall assessment of service
records, the name of the first respondent was not included in the
Select List due to the statutory limit of its size and as officers with
higher grading in the Select List were available as per the provisions
of Regulation 5(5) of the Regulations. The High Court was not right
in holding that the Selection Committee has miserably failed to
assess all the aspects of the case in their proper perspective and
that the promotions made to the IAS for the vacancies of the year
21
2004 is vitiated and the same is to be reviewed. The impugned
judgment of the High Court cannot be sustained and is liable to be
set aside.
26. In the result, the impugned judgment dated 17.04.2008
passed by the High Court of Madras in Writ Petition No.33696 of
2007 is set aside and these appeals are allowed. Insofar as the
challenge by the first respondent to G.O. Ms. No.1125 dated
26.11.2011, the same shall be considered on its own merits without
being influenced by any of the views expressed in this judgment.
………………………..J.
[R. BANUMATHI]
………………………..J.
[A.S. BOPANNA]
….………………………..J.
[HRISHIKESH ROY]
New Delhi;
November 15, 2019
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