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.
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.
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 GOWDAREPORTABLE
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.
