9911796707
TMI Blog1986 (12) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... d I would like to express my views on this aspect so that the Government and the authorities concerned may try to evolve a little more objective basis on that aspect. As mentioned, the validity of the Select Lists of 1978, 1979, 1980 and 1983 for promotion to the Indian Administrative Service was impugned in these matters on the ground that the Committee had not recorded any reasons for superseding the appellants and/or petitioners. The question of recording of reasons had been discussed in the decision of this Court where Select List was quashed on the ground that the Committee had failed to record reasons in superseding senior officers. In view of Regulation 5(1) to 5(5) as prevailing at the relevant time which came up for interpretation in Union of India v. Mohan Lal Capoor Others, [1974] 1 SCR 797, this Court quashed the Select List on the ground that the Committee had failed to record reasons in superseding senior officers. It was held that it was incumbent on the Selection Committee to have stated reasons in view of the said Regulation in a manner which would disclose as to how the record of superseded officers was judged in relation to the record of those officers who were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an officer though junior in service in preference to his senior does not really amount to supersession. If promotion is made on merit alone, the senior officer per se has no legal right to promotion and if promotion is made on merit, it cannot be said that a senior officer has been superseded. It has been emphasised that the categorisation is done on the service record. This has also been emphasised that such categorisation is done on the service record including confidential character rolls as maintained by senior officers holding high positions. It is, therefore, according to my learned brother, sufficient safeguard against arbitrary categorisation and misuse of power. I have my reservations on this aspect though I accede the position that in the absence of any other practicable solution, this is perhaps a sufficient safeguard and perhaps a practical way of facing a rather delicate task. It cannot be said now-a-days if one is aware of the facts and currents of life that simply because categorisation and judgment of the service record of officers are in the hands of senior officers is a sufficient safeguard. There has been consider- able erosion in the intrinsic sense of fairness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Punjab State Civil Service (Executive) had completed more than eight years of service and they were eligible for promotion to the Indian Administrative Service but their names were not included in the Select List for the year 1978, while the names of officers junior to them were included in the Select List. R.S. Das, Mrs. K. Goyal and Baldev Kapoor filed three separate petitions before Punjab and Haryana High Court under Article 226 of the Constitution challenging the validity of Select List of 1978. Their grievance was that though they were senior, having good service record yet they were superseded by officers junior to them in an arbitrary manner without recording any reasons for the same. A Division Bench of the High Court dismissed all the three petitions by a common order dated November 20, 1979 rendered in Baldev Kapoor's [1980] 2 SLR 309 case holding that the Select List prepared for the year 1978 did not suffer from any legal infirmity. During the pendency of the aforesaid petitions, another Select List was prepared for the year 1979 and in that List also the name of R.S. Das was not included. He filed another writ petition challenging the validity of that Sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List of 1978 was challenged by J.S. Chopra and other officers of the state civil service before the High Court under Article 226 of the Constitution on the same ground which had already been rejected by the Division Bench in Baldev Kapoor's case (supra). However having regard to the decision of this Court in Union of India v. Chothia (H.P) Ors., etc. etc., [1978] 3 SCR 652. Division Bench referred the matter for consideration to a larger bench on the question as to whether the Select List was vitiated for the non- compliance of Regulation 6(iii) inasmuch as reasons for the supersession of senior officers were not forwarded to the Commission. The Full Bench of the High Court held that the decision of this Court in Chothia's case did not affect the position and the Division Bench decision in Baldev Singh's case correctly laid down the law. In the present appeals and petitions learned counsel for the appellants and the petitioners as well as Shri R.S. Dass, appellant who appeared in person argued the case and have made the following submissions: (1) The select list of 1978-79, 1980 and 1983 are vitiated on the ground that select commit- tee did not record any reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except in accordance with the recruitment by one of the methods specified in rule 4. Rule 7 provides for direct recruitment through competitive examination. Rule 8(1) confers power on the Central Government to appoint members of the State Civil Service by promotion to the Service on the recommendation of the State Government and in consultation with the Union Public Service Commission in accordance with Regulations which may be flamed by the Central Government.-In exercise of its powers under Rule 8(1) the Central Government has flamed the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as the Regulations) laying down procedure of selection for appointment to the service by promotion. Regulation 3 provides for constitution of a Committee consisting of the Chairman of the Union Public Service Commission or a member of the Commission and other members as specified in column 2 to the schedule to the Regulations. Regulation 5 provides that the Committee shall ordinarily meet at intervals not exceeding one year to prepare the list of such members of the State Civil Service found suitable for promotion to the service on an overall rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lose as to how the record of superseded officers stood in relation to the record of those officers who were preferred for selection. The Court further held that the Selection Committee was under a mandatory obligation to record reasons in superseding senior officers, in the absence of any such reasons the Select List was vitiated. Regulation 5(1) to 5(5) which came up for interpretation before this Court in Capoor's case were as under: 5(1) The Committee shall prepare a list of such members of the State Civil/Police Service as satisfy the condition specified in regulation 4 and as are held by the Committee to be suitable for promotion to the service. The number of members of the State Civil/Police Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period twelve' months commencing from the date of the preparation of the list. (2) The Selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority. (3) The names of the officers included in the list shall be arranged in order of seniority in the State Civil/Police Service. Provided that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the supersession of officers of the State Civil Service. In Capoor's case the Regulation 5(2) as it then existed laid down that selection for inclusion in the list shall be based on merit and suitability with due regard to seniority which meant that merit and suitability in all respects was the governing consideration and seniority was to play a secondary role, but if merit and suitability were roughly equal, seniority was the determining factor or if it was not reasonably possible to assess inter-se merit and suitability of two eligible officers and come to a firm conclusion, seniority tilted the scale. Regulation 5(5) as it then existed laid emphasis on the role of seniority as it laid down that in the process of selection, review or revision of the select list if it was proposed to supersede any member of State Civil Service, the Committee shall record its reasons for the proposed supersession. The necessity to record reasons clearly implied that seniority of an officer in the State Service could not be ignored altogether. This Court in Capoor's case held that if senior officer was superseded by including the name of a Junior Officer in the select list in prefere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure laid 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 fail within the Out- standing 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 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 fight to promotion against his juniors but where promotion is made on merit alone, senior officer has no legal right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atural justice in matters relating to selection of suitable members of State Service for promotion to a higher service. In Mohanlal Capoor's case similar submission was made that principles of natural justice require communication of reasons to the officer proposed to be superseded to enable him to make representation. Both the learned Judges who constituted the Bench repelled the contention. Mathew, J. held that no notice was required to be given to a senior officer if he was proposed to be superseded in favour of a junior on the ground of his greater merit and suitability, 'the learned judge further observed that it was not expedient to extend the horizon of natural justice. Beg, J. also rejected the submission that minimal requirement of just and fair treatment in such a situation would be to inform the officer to be superseded, the reasons recorded for his proposed supersession to enable him to make representation. On such a ground expansion of scope of natural justice was not justified. The principle of audi alteram partem is a basic concept of principles of natural justice. No one should be condemned without hearing is the essence of justice. Courts of law apply th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that power. In Chairman, Board of Mining Examination Anr., v. Ramjee, [1977] 2 SCR 904 Krishna Iyer, J. speaking for the Court observed: Natural Justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of such situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. It is well established that rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the back-ground of statutory provision, nature of the right which may be effected and the consequences which may entail, its application depends upon the facts and circumstances of each case. These principles do not apply to all cases and situations. Applications of these uncodified rules are often excluded by expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representation against the proposed supersession. The next submission was that the select list prepared for 1978 was vitiated for the non-compliance of Regulation 6(iii) inasmuch as the State Govt. failed to forward to the Commission reasons recorded by the Committee for supersession of seniors as required by that Regulation. It was urged that even after deletion of Regulation 5(5) which required Committee to record reasons for supersession of an officer by the Notification dated June 3, 1977, Regulation 6(iii) remained unamended, therefore, the Committee was under a mandatory duty to record reasons, and the State Govt. was required to forward the same to the Commission. Since the Committee failed to comply with the mandatory obligation, the select list prepared for the year 1978 stood vitiated. To support this submission reliance was placed on the decision of this Court in Chothia's case. In that case interpretation of Regulation 5 of the Indian Forests Service (Initial Recruitment) Regulation of 1966 came up for consideration. Regulation 5 laid down method for preparation of list of suitable officers of State Forest Service adjudged by the Selection Board for appointment to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be no mandatory legal obligation on the Commit- tee to record reasons. Regulation 6(iii) merely required the State Govt. to forward reasons if recorded for supersession of the officers to the Commission, but if no reasons were recorded the State Govt. was under no legal obligation to forward the same to the Commission and its non-compliance did not vitiate the select list. Since the entire system of selection has been changed on account of amendment in the regulations, the principles laid down in Chothia's case do not apply to the instant cases. The Madhya Pradesh High Court in P.C. Pradhan v. Union of India Ors., [1981] 1 SLR 1 and the Punjab and Haryana High Court in J.S. Chopra's [1980] 2 ILR Punj. 477 case have taken similar views. The Appellants/Petitioners entertain an apprehension that in the absence of reasons the selection would be made in an arbitrary manner over-looking the claim of a senior officer eligible for promotion to the Indian Administrative Service. In this regard it was urged that selection on merit confers wide discretion on the authority making selection and in the absence of reasons there would be no objectivity and the members of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... election Committee is constituted by high ranking responsible officers presided over by Chair- man or a Member of the Union Public Service Commission. There is no reason to hold that they would not act in fair and impartial manner in making selection. The recommendations of the selection committee are scrutinised by the State Govt. and if it finds any discrimination in the selection it has power to refer the matter to the Commission with its recommendations. The Commission is under a legal obligation to consider the views expressed by the State Govt. along with the records of officers, before approving the select list. The selection committee and the Commission both include persons having requisite knowledge, experience and expertise to assess the service records and ability to adjudge the suitability of officers. In this view we find no good reasons to hold that in the absence of reasons the selection would be made arbitrarily. Where power is vested in high authority there is a presumption that the same would be exercised in a reasonable manner and if the selection is made on extraneous considerations, in arbitrary manner the courts have ample power to strike down the same and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a of the capacity and capability of the maker as a superior officer as well as a commentary on the quality of the officer against whom that confidential remark is being noted. But those who are charged with the duty to oversee that these entries are fair, just and objective quite often do intervene and rectify any entry on representation being made against it. at the proper time. In these circumstances, we do not think that the method of selection based on past performance as disclosed by the confidential records is not the proper method for adjudging suitability of the officer concerned. An ancillary argument was raised to demonstrate discrimination. It was urged that the regulations do not lay down any guidelines for categorisation of officers of the State Service into various categories with the result the Commit- tee even if acting bona fide may apply different standards at different times. The argument was further developed that the Committee members change and, therefore, the same Committee or different Committee is likely to apply its own standard in judging the suitability of officers in different manner in different years which would result into discrimination. This su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the deliberation of the committee was unauthorised. Regulation 3(1) provides that a committee shall be constituted, consisting of the Chairman of the Commission or any other member of the Com- mission representing it and other members as specified in corresponding column 3 of the schedule. The proviso to the Regulation lays down that except the Chairman or the member of the Commission, no other person who is not a member of the service shall be member of the Committee. It further provides that the Central Govt. may after consultation with the State Government amend the schedule. Other members of the Committee as specified in Column 3 of the schedule to the regulation as applicable to the State of Punjab specified the (1) Chief Secretary to the Govt.; (2) Development Commissioner (3) Senior most Financial Commissioner, (4) A nominee of the Govt. of India, not below the rank of Joint Secretary as members of the Committee. Senior posts in the Indian Administrative Service not below the rank of Commissioner are determined in accordance with the schedule to the Indian Administrative Service. (Fixation of Cadres Strength) Regulations 1954. The cadre regulation did not provide f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i I.C. Puri designated as Financial Commissioner (Development) was also discharging the duties and functions of the Development Commissioner. He was, therefore, holding the dual charge as no separate post of Development Commissioner had been sanctioned by the Govt. These facts clearly show that for all purposes Shri Pun was working as Development Commissioner. As Financial Commissioner (Development) he was exercising same powers and discharging same functions which could be performed by a Development Commissioner, therefore he was competent to participate in the deliberations of the selection committee. While considering this question we cannot be oblivious of the fact that at no stage any objection was raised against functioning of Shri Puri as a member of the Selection Committee or his participation in the deliberations. There is further no allegations of mala fide or bias against Shri Puff. There is evidence on record to show that recommendations of the Selection Committee constituted under Regulation 3 were unanimous, which were scrutinised by the State Govt. and the Union Public Service Com- missions before the same were approved. Learned Counsel placed strong reliance on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulations as the Central Govt. may frame after consultation with the State Governments and the Commission, recruit to the Indian Administrative Service persons by promotion from amongst the substantive members of State Civil Service. According to the learned counsel, Rule 8(1) confers power on the Central Govt. to make recruitment to the Indian Administrative Service by promotion from amongst the members of the State Civil Service on the recommendations of the State Govt., in consultation with the Commission. However, Regulations 3, 5 and 7 rob the State Govt. of its power of making recommendation for recruitment to the service. The plea of ultra vires can be sustained if Regulations 3, 5 and 7 are inconsistent with Rule 8(1). In our opinion Rule 8(1) confers power on the Central Govt. to make recruitment to the Indian Administrative Service by promotion from amongst the members of the State Civil Service on the recommendations of the State Govt. in consultation with the Commission. It further contemplates that the recommendations of the State Govt. and consultation with the Commission which is constitutional obligation as envisaged by Art. 320 of the Constitution, would be in acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission, the aforesaid officers were promoted and appointed to I.A.S. In the background of these facts it was urged that the State Government deliberately did not forward its comments.to the Union Public Service Commission on the proposed Select List of 1980 as a result of which, delay was caused in the approval of the 1980 list. In the counter affidavit filed on behalf of the State Government allegations regarding mala fide have been denied. No material has been placed before us to substantiate the plea of mala fide. Merely, because the State Government forwarded its recommendations with delay is not sufficient to justify inference that the delay was purposive with a view to grant undue favour to the officers named above. Regulations contemplate preparation of select list each year. The process of Selection, preparation and its final approval involves participation of three authorities namely the Selection Committee constituted under Regulation 3, the State Government and the Union Public Service Commission. The records of all the eligible officers are scrutinized by the Committee, State Government and the Commission before the Select List is finally approved and if there is any di ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
