REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4822-4826 OF 2007
P. Sivanandi ….Appellant
versus
Rajeev Kumar & Ors. …Respondents
WITH
CIVIL APPEAL NO. 4827 OF 2007
P. Sivanandi ….Appellant
versus
The State of Tamil Nadu & Ors. …Respondents
J U D G M E N T
Madan B. Lokur, J.
1. These appeals raise a narrow question for consideration, namely,
whether the Annual Confidential Report (ACR) of an officer forms a part of
his ‘service record’ and whether it could be ignored for the purposes of
his promotion merely on the ground that it was written after some delay. In
our opinion, the ACR of an officer forms a part of his service record and
he cannot be prejudiced merely because his superior officers delayed
writing it. The judgment and order to the contrary passed by the Madras
High Court on 27th October, 2006 in W.P. Nos. 15791-15795 of 2006
does not lay down the correct law.[1]
2. As mentioned above, the issue involved in this case is rather narrow
and it is not necessary to detail all the facts of the case. Suffice it
to say that the appellant Sivanandi was directly recruited on or about 6th
May, 1985 as a Deputy Superintendent of Police with the Tamil Nadu Police.
3. A Select Committee constituted under the Indian Police Service
(Appointment by Promotion) Regulations, 1955 considered Sivanandi, amongst
others, for promotion in 1994-95 to the Indian Police Service. The Annual
Confidential Reports (ACRs) required to be considered for his promotion
related to the period from 01.04.1989 to 31.03.1994.
4. The Select Committee graded Sivanandi as ‘Good’ when it met on 7th
March, 1995. This grading was apparently arrived at on the basis of his
service records minus his ACR for 1992-93 which was missing and minus his
ACR for a part of the period of 1993-94 that is from 01.04.1993 to
15.07.1993 which had not been written. He was however, considered in the
subsequent year 1995-96 and promoted to the IPS with the year of allotment
being 1993.
5. On a challenge having been raised to the selection to the Indian
Police Service by some aggrieved officers, an original application was
filed before the Central Administrative Tribunal (Tribunal), which set
aside the selection for 1994-95. The Tribunal then directed a fresh
selection process. The opinion expressed by the Tribunal was accepted by
this Court by an order dated 20th February, 2002 in Civil Appeal Nos. 1299-
1305 of 1999 etc. (Christopher Nelson v. U.P.S.C. & Ors.).
6. In view of the above facts, a Review Select Committee constituted
under the said Regulations met on 24th March, 1999 and considered the
eligible officers including Sivanandi for promotion to the IPS as on the
year 1994-95. By this time, the missing ACR of Sivanandi for the year 1992-
93 had been located. Additionally, the ACR for the above period 01.04.1993
to 15.07.1993 which could not be placed before the Select Committee in its
meeting held on 7th March, 1995 was also available. In fact, it transpires
that the ACR for that period of about three and a half months was written
by the Reporting Officer on 14.11.1994; it was reviewed by the Reviewing
Officer on 19.01.1996; it was accepted by the Accepting Authority on
27.01.1996. These dates explain why the ACR for the period 01.04.1993 to
15.07.1993 could not be placed before the Select Committee when it met on
7th March, 1995.
7. Be that as it may, in view of the consideration of Sivanadi’s ACRs
including the ACR for 1992-93 and for the period from 01.04.1993 to
15.07.1993 he was graded ‘Very Good’ and promoted to the IPS with the year
of allotment being 1991.
8. Feeling aggrieved by Sivanandi’s selection, the private respondents
before us approached the Tribunal through a batch of applications being
O.A. No. 595-598 of 2005 and O.A. No. 780 of 2005.
9. By a common order dated 5th May, 2006 the Tribunal allowed the
original applications filed by the private respondents on the finding that
the ACR for the period 01.04.1993 to 15.07.1993 was invalid and could not
have been considered by the Review Select Committee since it was written
beyond the period prescribed by the State Government and therefore
Sivanandi’s selection was vitiated. Significantly, the Tribunal held in
Sivanandi’s favour that the earlier missing ACR for 1992-93 which was now
made available was rightly considered by the Review Select Committee.
10. Feeling aggrieved by the limited adverse finding against him by the
Tribunal, Sivanandi preferred W.P. Nos. 15791-15795 of 2006 in the Madras
High Court challenging the common order of the Tribunal vitiating his
selection by excluding from consideration the ACR for the period 01.04.1993
to 15.07.1993.
11. One of the submissions made by the Union Public Service Commission
(for short ‘UPSC’) to justify the selection by the Review Select Commission
before the High Court was that the ACR for the period 01.04.1993 to
15.07.1993 could validly have been considered by the Review Select
Committee. Alternatively, it was submitted that even if it were excluded
from consideration, it would make no difference to the overall grading of
Sivanandi and that it was the earlier missing ACR of 1992-93 that resulted
in Sivanandi being graded ‘Very Good’ as against the earlier grading of
‘Good’. As such, the promotion of Sivanandi to the IPS was fully justified
in law and also on merit, even after excluding the ACR for the period
01.04.1993 to 15.07.1993.
12. Unfortunately, the High Court did not accept Sivanandi’s contention
or that of the UPSC and upheld the view expressed by the Tribunal. It is
under these circumstances that Sivanandi is now before us.
13. It is been brought to our notice by learned counsel for Sivanandi
that the issue raised in these appeals is no longer res integra in view of
the decision of this Court in G. Mohanasundaram v. R. Nanthagopal & Ors.[2]
14. In the aforesaid decision, the provisions of the Indian
Administrative Service (Appointment by Promotion) Regulations, 1955 were
under consideration. The relevant provisions are in pari materia with the
provisions of the Indian Police Service (Appointment by Promotion)
Regulations, 1955.
15. It was held by this Court that in terms of the IAS Regulations, the
UPSC is obliged to consider the service record of a candidate who is
eligible for promotion and it is on the basis of the overall relative
assessment of the service record that an eligible officer may be graded.
Consequently, it is quite clear that the entire service record of the
eligible candidates is required to be sent to the Select Committee for
consideration. For this reason, the ACRs of Sivanandi for 1992-93 and for
the period 01.04.1993 to 15.07.1993 were required to be considered by the
Review Select Committee. Regulation 5 of the Indian Police Service
(Appointment by Promotion) Regulations, 1955 reads as follows:-
“5. Preparation of list of suitable officers – (1) Each Committee shall
ordinarily meet every year and prepare a list of such members of the State
Police Service, as held by them to the suitable for promotion to the
Service. The number of members of the State Police Service to be included
in the list shall be determined by the Central Government in consultation
with the State Government concerned, and shall not exceed the number of
substantive vacancies as on the first day of January of the year in which
the meeting is held, in the posts available for them under Rule 9 of the
Recruitment Rules. The date and venue of the meeting of the Committee to
make the Selection shall be determined by the Commission:
Provided that ………..
(2)…………..
(2-A)……….
(3)…………..
(3-A)………
(4) The Selection Committee shall classify the eligible officers as
‘outstanding’ ‘very good’ ‘Good’ or ‘Unfit’ as the case may be, on an
overall relative assessment of their service records.
(5)……….
(6)……….”
16. In the above-cited decision, one of the submissions made by
Mohanasundaram in this Court was that the State Government had declared his
ACR invalid merely because it had been written beyond the period of nine
months. It was submitted that the ACR could not be held invalid in the
absence of any limitation prescribed under any rule or guidelines.
17. The State of Tamil Nadu sought to rely upon a Government Order (or
GO) dated 4th April, 2007 to deny to the candidate the benefit of the ACR
written beyond the period of nine months. Although the GO dated 4th April,
2007 was issued after the decision in the impugned judgment and order, the
principle laid down by this Court on the interpretation of that GO would be
equally applicable and one of the principles so laid down is that the
prescription of a period for writing an ACR is not mandatory but directory.
That being the position, the ACR of Sivanandi for the period 01.04.1993 to
15.07.1993 could validly have been considered by the Review Select
Committee even if it was written after some delay and there was no error in
its consideration.
18. This is what this Court had to say:
“In the guidelines issued by the State Government, there is nothing to
declare any annual confidential report invalid. The period of 90 days
prescribed therein is not mandatory but directory. The 90 days period is
also to be counted from the date of demitting office by the officer who
writes the ACR.
In view of the discussion above, we hold that in terms of Regulation 5(4)
of the Indian Administrative Service (Appointment by Promotion)
Regulations, 1955 it was incumbent upon the State Government to forward
complete service records of all the eligible candidates including the first
respondent to UPSC for considering them for promotion to the IAS cadre.
Withholding of ACRs of the year 2003-2009 of the first respondent on a
wrong presumption that they were invalid, is illegal and fatal in the case
of the first respondent towards his appointment to the post of Indian
Administrative Service. The aforesaid fact though came to the notice of
UPSC which sought clarification from the Government of Tamil Nadu, the
State Government misled UPSC which resulted in wrong assessment of service
records of the first respondent in violation of Regulation 5(4) read with
Regulation 6 of the Indian Administrative Service (Appointment by
Promotion) Regulations, 1955.”
19. That apart, the fact that the ACR of Sivanandi was written and
reviewed by his superior authorities after a considerable delay obviously
cannot put him to any disadvantage. The writing and review of his ACR was
beyond his control and we do not see any rational basis on which Sivanandi
could be disadvantaged merely because his superior officers were lax in the
discharge of their responsibilities.
20. Under these circumstances, we are of the view that the High Court
while upholding the view expressed by the Tribunal was in error in
concluding that the Review Select Committee could not consider the ACR of
Sivanandi for the period 01.04.1993 to 15.07.1993 and to this extent the
decision of the High Court is set aside.
21. The question that now remains is whether on a consideration of the
entire service record Sivanandi was entitled to be promoted to the IPS with
the year of allotment as 1991. There is nothing to suggest that the Review
Select Committee with the UPSC did not consider the case of Sivanandi for
promotion on merit or that the view of the Review Select Committee was
perverse in any manner. That being so we do not think it proper to
interfere with the decision arrived at by the Review Select Committee with
the UPSC on the basis of the service record of Sivanandi more so when it
was the submission of the UPSC that what tilted the scales in his favour
was his ACR for the period 1992-93 which was earlier missing and which was
not taken into consideration on an earlier occasion.
22. Under these circumstances we uphold the decision taken by the Review
Select Committee and allow these appeals by setting aside the order of the
High Court. Sivanandi will be entitled to all consequential benefits.
……………………….J
( Madan B. Lokur )
New Delhi; ………………………J
February 2, 2017 ( Prafulla C. Pant )
-----------------------
[1] [2] P. Sivanandi v. Rajiv Kumar, MANU/TN/9878/2006
[3] [4] (2014) 13 SCC 172
