UNION PUBLIC SERVICE COMMISSION versus JAWAHAR SANTHKUMAR AND OTHERS on 15 November 2019

628

SUPREME COURT REPORTS

[2019] 14 S.C.R.

AUNION PUBLIC SERVICE COMMISSION

v.

JAWAHAR SANTHKUMAR AND OTHERS

(Civil Appeal No. 4626 of 2009)

BNOVEMBER 15, 2019

[R. BANUMATHI, A. S. BOPANNA ANDHRISHIKESH ROY, JJ.]

IAS (Appointment by Promotion) Regulations, 1955 –Regulations 5(1),5(4) and 5(5) – Meeting of the SelectionCCommittee for promotion to the Indian Administrative Service (IAS)of Tamil Nadu Cadre for the year 2004 was held against threevacancies as determined by the Central Government – Name of thefirst respondent considered along with the names of respondentnos.4 & 5 – First respondent’s name could not be included in theDSelect List of 2004 – Respondent nos.4 & 5 appointed by theGovernment of India – Challenged by the first respondent beforethe Central Administrative Tribunal (CAT), Madras Bench –Rejected – Review application – Dismissed – High Court set asidethe order of the Tribunal – Held: While assessing the suitability ofthe officers for promotion, the Selection Committee, as per theEuniform and consistent practice followed in the matter of inductionto the All India Services, examines the service records of theeligible officers, with special reference to their performance duringthe last five years (preceding the year for which the Select List isprepared), deliberating on the quality of the officer indicated inFthe various columns recorded by the reporting/reviewing/acceptingauthority in the ACRs for different years – Selection Committeeconsidered the ACRs and made relative assessment to all the officersunder consideration – Name of the first respondent could not beincluded in the Select List of 2004 as the overall grading given tohim by the Selection Committee was lower and there were only threeGvacancies – Since his name could not be included in the SelectList for promotion to the IAS Cadre in 2004, he was not consideredfor promotion – Selection from the State Civil Service to IAS isstrictly on the basis of merit, ability and suitability of the officers– No merit in the contention of the first respondent that his senioritywould have enabled his name to be included in the Select List –H

Gradation is made by the Selection Committee on the merits basedon the relative assessment – Seniority would become relevant onlywhen the merit of the candidates is equal – When the SelectionCommittee has given its classification, the court cannot sit in appealover the assessment made by the Committee of experts – Judgmentof the High Court set aside– Further, challenge by the firstrespondent to G.O. Ms. No.1125 datd. 26.11.2011 be consideredon its own merits without being influenced by any of the viewsexpressed herein – All India Services Act, 1951 – s.3 – Service Law– Promotion.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1.1 All India Services Act, 1951 has been enactedfor the purpose of regulating the recruitment and conditions ofservice of persons belonging to the Indian AdministrativeServices. Under Section 3 of the said Act, the CentralGovernment has framed the IAS (Appointment by Promotion)Regulations, 1955 (Promotion Regulations). In accordance withthe provisions of the said Promotion Regulations, the SelectionCommittee, presided over by the Chairman/Member of theUPSC makes selection of the State Civil Service Officers forpromotion to the Indian Administrative Service. In Regulation5(1) of the Promotion Regulations, the number of vacanciesagainst which selection is to be made for a particular recruitmentyear for promotion to the Indian Administrative Service of theState Cadre is determined by the Government of India (DoPT)in consultation with the State Government concerned.Thereafter, the State Government forwards a proposal to theCommission along with seniority list, eligibility list (three timesthe number of vacancies) of the State Service Officers, integritycertificates, details regarding disciplinary proceedings and detailsof penalties imposed on the eligible officers etc. and completeACR dossiers of the eligible officers. When the SelectionCommittee meet for selection for the recruitment year, the abovedocuments are placed before the Selection Committee inaccordance with the provisions of Regulation 5(4) of thePromotion Regulations. The Committee duly classifies theeligible State Civil Service Officers included in the zone ofconsideration as “Outstanding”, “Very Good”, “Good” or“Unfit”, as the case may be, on an overall relative assessment AB

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Aof their service records. Thereafter, as per the provisions ofRegulation 5(5) of the Promotion Regulations, the SelectionCommittee prepares a list by including the required number ofnames firstly from the officers finally classified as “Outstanding”,then from amongst those similarly classified as “Very Good” andthereafter, from amongst those officers classified as “Good”.BWhile assessing the suitability of the officers for promotion, theSelection Committee, as per the uniform and consistent practicefollowed in the matter of induction to the All India Services,examines the service records of each of the eligible officers, withspecial reference to the performance of the officers during theClast five years (preceding the year for which the Select List isbeing prepared), deliberating on the quality of the officer asindicated in the various columns recorded by the reporting/reviewing/accepting authority in the ACRs for different years andthen after detailed mutual deliberation and discussion, finally arrives at a classification to be assigned to each officer. WhileDdoing so, the Selection Committee determines the overallgrading recorded in the Confidential Reports (CRs) to ensurethat the overall grading in the CRs is not inconsistent with thegrading/remarks under various specific parameters or attributes.The Selection Committee takes into account orders regardingEappreciation for the meritorious works done by the officersconcerned and also keeps in view the orders awarding penaltiesor any adverse remarks duly communicated to the officer, which,even after due consideration of his representation are notexpunged. The UPSC after taking into consideration the recordsFreceived from the State Government under Regulation 6 and theobservation of the Central Government received underRegulation 6A of the Promotion Regulations, takes a finaldecision on the recommendations of the Selection Committeein accordance with the provisions of Regulation 7 of thePromotion Regulations. The selection of the State Civil ServiceGOfficers for promotion to IAS is made in a fair and objectivemanner on the basis of relevant records and following therelevant Rules and Regulations. The above procedure isuniformly followed for all the States/Cadres in the matter ofinduction to All India Services. [Paras 11-13] [637-D-H; 638-A-HB-E-H; 639-A-B]

1.2 Insofar as the present case, the first respondent’sname was included by the State Government in the list of officerseligible for consideration for the year 2004. Accordingly, theSelection Committee also considered the ACRs and made arelative assessment to all the officers under consideration. Thename of the first respondent could not be included in the SelectList of the year 2004 as the overall grading given to him by theSelection Committee was lower and there were only threevacancies. Since the name of the first respondent could not beincluded in the Select List for promotion to the IAS Cadre inthe year 2004, the first respondent was not considered forpromotion. Selection from the State Civil Service to IAS isstrictly on the basis of merit, ability and suitability of the officers.The first respondent was ordered to be promoted to the cadreof DRO by the order of the State Tribunal dated 26.06.2002. Butthe first respondent’s seniority was refixed on 05.09.2005 videG.O.Ms. No.924. Of course, the first respondent’s seniority wasrefixed by the State Government subsequent to the SelectionCommittee Meeting for 2004. [Paras 14, 17 and 18] [639-C-D;640-A; 641-C-D]

M.V. Thimmaiah and Others v. Union Public ServiceCommission and Others (2008) 2 SCC 119 : [2007] 13SCR 624 – relied on.

1.3 No merit in the contention of the first respondent thathis seniority would have enabled his name to be included in theSelect List. Gradation is made by the Selection Committee onthe merits based on the relative assessment. Seniority wouldbecome relevant only when the merit of the candidates is equal.Power to classify the candidates is the function of the SelectionCommittee. In the process of selection under Regulations 5(4)and 5(5) of the Promotion Regulations, the Selection Committeeis not required to record reasons by assigning overall relativeassessment in respect of the eligible officers or for selecting ajunior officer, having higher merit, in preference to that of asenior officer. [Paras 20, 22] [641-H; 642-A-B; 643-E-F]

R.S. Dass v. Union of India and Others (1986) Supp.SCC 617 : [1987] SCR 527 – relied on.

UPSC v. K. Rajaiah and Others (2005) 10 SCC 15 –held applicable.

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A1.4 When the Selection Committee has given its ownclassification, the court cannot sit in appeal over the assessmentmade by the Committee of experts. In the present case, neitherthe decision of the Selection Committee nor the decision-makingprocess suffers from any arbitrariness. Since there was down-grading of the first respondent for the assessment year 2004,Bthe first respondent was not included in the Select List. Onoverall assessment of service records, the name of the firstrespondent was not included in the Select List due to thestatutory limit of its size and as officers with higher grading inthe Select List were available as per the provisions of RegulationC5(5) of the Regulations. The High Court was not right in holdingthat the Selection Committee has miserably failed to assess allthe aspects of the case in their proper perspective and that thepromotions made to the IAS for the vacancies of the year 2004is vitiated and the same is to be reviewed. The impugned judgment of the High Court cannot be sustained and is set aside.DIn the result, the impugned judgment dated 17.04.2008 passedby the High Court of Madras in Writ Petition No.33696 of 2007is set aside. Insofar as the challenge by the first respondent toG.O. Ms. No.1125 dated 26.11.2011, the same shall beconsidered on its own merits without being influenced by any ofEthe views expressed in this judgment. [Paras 24-26] [645-A-G-H; 646-A-C]

Union Public Service Commission v. M. Sathiya Priyaand others (2018) 15 SCC 796 : [2018] 6 SCR 701 –relied on.F

Case Law Reference

From the Judgment and Order dated 17.04.2008 of the HighHCourt of Judicature at Madras in W.P. No. 33696 of 2007.

With

C.A. No. 4628/2009

S. Satyam Reddy, Sr. Adv., Ms. Binu Tamta, M. Yogesh Kanna,S. Raja Rajeshwaran (In place of B. Balaji), K.K.S. Krishnaraj, MohanMurali, Ms. Aswathi M.K., Karri Venkata Reddy, Ms. Priyanka Das,Arvind Kumar Sharma and Sachin Sharma, Advs. for the appearingparties.

The Judgment of the Court was delivered by

R. BANUMATHI, J.

1. These appeals arise out of the impugned judgment dated17.04.2008 passed by the High Court of Madras in Writ PetitionNo.33696 of 2007 in and by which the High Court set aside the orderof the Tribunal and directed the appellants and Union of India (DoPT)to convene a Selection Committee Meeting for reviewing thepromotions made to the Indian Administrative Service (IAS) for the year2004 and promote the first respondent herein to the IAS from the datewhen his juniors were promoted with all the consequential benefits.

2. Brief facts which led to filing of these appeals are as under:- A meeting of the Selection Committee for promotion to the IASof Tamil Nadu Cadre for the year 2004 was held on 18.12.2004 againstthree vacancies as determined by the Central Government. The nameof the first respondent was considered by the said Committee alongwith the names of respondent Nos.4 and 5. The position in the EligibilityList (EL), Selection List (SL) and the overall relative assessment (ORA)as assigned by the Selection Committee in respect of the first respondentvis-à-vis that of the officers included in the Select List are as under:- The first respondent was duly considered for promotion in theyear 2004 and assessed as “Good” for that year. However, on the A

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Abasis of overall relative assessment, the first respondent’s name couldnot be included in the Select List of 2004 due to lower grading andalso due to the statutory limit on the size of the Select List. RespondentNos.4 and 5 who were included in the Select List have been appointedby the Government of India by Notification dated 29.04.2005.B3. Aggrieved by his non-appointment to the IAS, the firstrespondent filed OA No.749 of 2006 before the Central AdministrativeTribunal (CAT), Madras Bench. The said application was dismissed bythe Tribunal vide order dated 31.08.2007 holding that the firstrespondent’s name was included by the State Government in the list ofofficers eligible for consideration for the year 2004 and accordingly, theCSelection Committee considered the first respondent’s ACRs and madea relative assessment of all the officers under consideration. TheTribunal pointed out that the Selection Committee makes its ownassessment on the basis of entries made in the various columns andafter discussion within the Committee, finally arrives at a classificationD“Outstanding”, “Very Good”, “Good” and “Unfit” to be assigned to anofficer. Finding no irregularity by the Selection Committee in makingthe relative assessment, the Tribunal dismissed the application filed bythe first respondent. The first respondent then filed review applicationin RA No.27 of 2007 in OA No.749 of 2006 seeking review of theTribunal’s order dated 31.08.2007 and the said review petition came toEbe dismissed by the Tribunal vide order dated 03.10.2007.

4. Aggrieved by the dismissal of his application, the firstrespondent filed writ petition in WP No.33696 of 2007. The High Courtheld that the Tribunal by its order dated 26.06.2002 directed for fixationof the first respondent’s seniority in the cadre of District RevenueFOfficer; but the seniority of the first respondent was not refixed withina reasonable time by the State Government and the first respondent’sseniority was refixed vide G.O.Ms. No.924 dated 05.09.2005 with along and unexplained delay of 39 months which is unfair and thus, hascaused much prejudice to the first respondent since in the meantimehis juniors namely respondent Nos. 4 and 5 were promoted to the IAS.GThe High Court also held that as per Regulation 5(5), the classificationof an individual by the Selection Committee is very crucial and for theyear 2003, the overall assessment of the first respondent had beenadjudged as “Very Good” by the Committee; whereas the overallassessment of the first respondent pertaining to Select List of 2004 wasHjust “Good” and there was no reason whatsoever as to why suddenly the first respondent has been down-graded in his overall rating. TheHigh Court also pointed out that for another person by name Shri T.K.Ponnusamy who was rated “Unfit” in 2003, was rated as “Very Good”in 2004 and there is no reason for such sudden hike in the classification/overall rating of Shri T.K. Ponnusamy. The High Court held that whenT.K. Ponnusamy against whom criminal case was pending, waspreferred over the first respondent for inclusion in the Select List, thesame cannot be appreciated. The High Court set aside the order ofthe Tribunal by holding that the Selection Committee and the Tribunalfailed to assess all the aspects of the case in their proper perspectiveand directed the appellant and respondent Nos.2 and 3 to convene aSelection Committee Meeting for reviewing the promotions made to theIAS for the year 2004 and promote the first respondent to the IAS fromthe date when his juniors were promoted with all the consequentialbenefits.

5. Being aggrieved, Union Public Service Commission (UPSC)and the Government of Tamil Nadu have preferred these appeals.When the appeals were taken up for hearing, it was brought to the noticeof this Court that the first respondent has been dismissed from theservice vide G.O.Ms. No.1125 dated 26.11.2011 on the allegation ofpossession of disproportionate assets and also on the ground of hisinvolvement in a criminal case in Crime No.37 of 2008 registered againsthim by the Vigilance and Anti-Corruption Unit, Trichy.

6. Mr. S. Satyam Reddy, the learned Senior counsel appearingfor the first respondent submitted that the first respondent has challengedthe order of dismissal from service dated 26.11.2011 by filing a writpetition in WP No.28724 of 2011. It was stated that the High Courthas quashed the said dismissal order dated 26.11.2011 and the matterhas been remanded back to the authorities for consideration afresh.Since the above G.O.Ms. No.1125 dated 26.11.2011 is a subsequentevent, we have considered the present appeals independently on its ownmerit.

7. Assailing the impugned judgment, Ms. Binu Tamta, learnedcounsel appearing for the appellant-UPSC submitted that the High Courterred in holding that had the first respondent’s seniority been fixed withinreasonable time, the first respondent would have been promoted to theIAS. It was further submitted that the mere fact that the first respondentwas eligible and there was no case pending against him does not ipso AB

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Afacto imply that his name should have been included in the Select List.The learned counsel further submitted that the selection from the StateCivil Service Officers to IAS is strictly on the basis of merit, abilityand suitability of the candidates and seniority is considered only wheremerit, ability and suitability are approximately equal. Placing relianceupon UPSC v. K. Rajaiah and others (2005) 10 SCC 15, the learnedBcounsel for the appellant submitted that the Selection Committee canevolve its own classification which may be at variance with the gradationgiven in the ACRs and the High Court could not have faulted theclassification of the first respondent for the year 2004 as “Good”. Thelearned counsel further submitted that inclusion of Shri T.K. PonnusamyCagainst whom criminal case was pending in the Select List in terms ofRegulation 5(5), was only provisional and the same could not have beenfaulted by the High Court.

8. Reiterating the above submissions, Mr. Yogesh Kanna, learnedcounsel appearing for the State of Tamil Nadu contended that the HighDCourt was not right in holding that the authorities concerned acted withprejudicial attitude and that an illegality was perpetuated on the firstrespondent.

9. The learned Senior counsel for the first respondent submittedthat when the State Administrative Tribunal by its order dated 26.06.2002Erestored the seniority of the first respondent making him senior torespondent Nos.4 and 5, the State Government deliberately delayedissuance of the order fixing the seniority of the first respondent andthe first respondent’s seniority was fixed by G.O.Ms. No.924 dated05.09.2005 but in the meanwhile, respondent Nos.4 and 5 wereFpromoted to the IAS pursuant to the Select List of 2004 by the sameorder G.O.Ms. No.924 dated 05.09.2005. It was submitted that the longand unexplained delay of 39 months in refixing the seniority of the firstrespondent is unfair and the same caused serious prejudice to the firstrespondent. The learned Senior counsel further submitted that Regulation5(2) stipulates that the Selection Committee shall consider the casesGof Members of the State Civil Services in the order of seniority andthe High Court has rightly held that the seniority would influence theprocess of selection. It was further submitted that no reasons have beenassigned by the Selection Committee for down-grading the firstrespondent from “Very Good” to “Good”. The learned Senior counselHsubmitted that a person with tainted antecedents (Shri T.K. Ponnusamy)

had been rated as “Very Good”; whereas on earlier occasion, he wasfound “Unfit”, and there were no valid reasons for down-grading thefirst respondent from “Very Good” to “Good”. The High Court,therefore, rightly held that the findings of the Selection Committee arevitiated on account of non-application of mind and rightly issued thedirections to the appellants to convene a Selection Committee Meetingfor reviewing the promotions made to the IAS for the year 2004.

10. We have considered the submissions of both sides andcarefully perused the impugned judgment and other materials on record.The point falling for consideration is whether the High Court was rightin holding that the Selection Committee did not follow the uniformstandards in classifying individual officers which has a direct bearingon their selection to the IAS. Yet another point falling for considerationis whether the High Court was right in directing the appellant to convenea Review Selection Committee Meeting and promote the first respondentto the IAS from the date his juniors were promoted with allconsequential benefits.

11. All India Services Act, 1951 has been enacted for the purposeof regulating the recruitment and conditions of service of personsbelonging to the Indian Administrative Services. Under Section 3 of thesaid Act, the Central Government has framed the IAS (Appointmentby Promotion) Regulations, 1955 (Promotion Regulations). Inaccordance with the provisions of the said Promotion Regulations, theSelection Committee, presided over by the Chairman/Member of theUPSC makes selection of the State Civil Service Officers for promotionto the Indian Administrative Service. In Regulation 5(1) of the PromotionRegulations, the number of vacancies against which selection is to bemade for a particular recruitment year for promotion to the IndianAdministrative Service of the State Cadre is determined by theGovernment of India (DoPT) in consultation with the State Governmentconcerned. Thereafter, the State Government forwards a proposal tothe Commission along with seniority list, eligibility list (three times thenumber of vacancies) of the State Service Officers, integrity certificates,details regarding disciplinary proceedings and details of penaltiesimposed on the eligible officers etc. and complete ACR dossiers of theeligible officers. When the Selection Committee meet for selection forthe recruitment year, the above documents are placed before theSelection Committee in accordance with the provisions of Regulation AB

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A5(4) of the Promotion Regulations. The Committee duly classifies theeligible State Civil Service Officers included in the zone of considerationas “Outstanding”, “Very Good”, “Good” or “Unfit”, as the case maybe, on an overall relative assessment of their service records.Thereafter, as per the provisions of Regulation 5(5) of the PromotionBRegulations, the Selection Committee prepares a list by including therequired number of names firstly from the officers finally classified as“Outstanding”, then from amongst those similarly classified as “VeryGood” and thereafter, from amongst those officers classified as “Good”.The relevant part of the Regulations 5(4) and 5(5) reads as under:- C“5(4). The Selection Committee shall classify the eligible officersas “Outstanding’, ‘Very Good’, ‘Good’ and ‘Unfit’ as the casemay be on an overall relative assessment of their service records.

5(5). The List shall be prepared by including the required numberof names first from amongst the officers finally classified as‘Outstanding’ then from amongst those similarly classified asD‘Very Good’ and thereafter from amongst those similarlyclassified as ‘Good’ and the order of names inter-se within eachcategory shall be in the order of their seniority in the State CivilService.”

12. While assessing the suitability of the officers for promotion,Ethe Selection Committee, as per the uniform and consistent practicefollowed in the matter of induction to the All India Services, examinesthe service records of each of the eligible officers, with special referenceto the performance of the officers during the last five years (precedingthe year for which the Select List is being prepared), deliberating onFthe quality of the officer as indicated in the various columns recordedby the reporting/reviewing/accepting authority in the ACRs for differentyears and then after detailed mutual deliberation and discussion, finallyarrives at a classification to be assigned to each officer.

13. While doing so, the Selection Committee determines the overall grading recorded in the Confidential Reports (CRs) to ensureGthat the overall grading in the CRs is not inconsistent with the grading/remarks under various specific parameters or attributes. The SelectionCommittee takes into account orders regarding appreciation for themeritorious works done by the officers concerned and also keeps inview the orders awarding penalties or any adverse remarks dulyHcommunicated to the officer, which, even after due consideration of

his representation are not expunged. The UPSC after taking intoconsideration the records received from the State Government underRegulation 6 and the observation of the Central Government receivedunder Regulation 6A of the Promotion Regulations, takes a final decisionon the recommendations of the Selection Committee in accordance withthe provisions of Regulation 7 of the Promotion Regulations. Theselection of the State Civil Service Officers for promotion to IAS ismade in a fair and objective manner on the basis of relevant recordsand following the relevant Rules and Regulations. The above procedureis uniformly followed for all the States/Cadres in the matter of inductionto All India Services.

14. Insofar as the present case, the first respondent’s name wasincluded by the State Government in the list of officers eligible forconsideration for the year 2004. Accordingly, the Selection Committeealso considered the ACRs and made a relative assessment to all theofficers under consideration. The name of the first respondent couldnot be included in the Select List of the year 2004 as the overall gradinggiven to him by the Selection Committee was lower and there wereonly three vacancies. Since the name of the first respondent could notbe included in the Select List for promotion to the IAS Cadre in theyear 2004, the first respondent was not considered for promotion.

15. Contention of the first respondent is that though Shri T.K.Ponnusamy was having criminal case, his name was included in theSelect List and when the person having criminal case was included inthe Select List, the name of the first respondent ought to have beenincluded. The High Court also held that Shri T.K. Ponnusamy whowas classified as “Unfit” for the Select List 2003 has been adjudgedas “Very Good” for the Select List 2004 and the sudden hike in theclassification/overall rating of Mr. T.K. Ponnusamy has been remainedunanswered throughout.

16. Of course, Shri T.K. Ponnusamy was having a criminal case;but as noted above, he was included provisionally in the Select List 2004subject to his clearance in the criminal case pending against him andgrant of integrity certificate by the State Government and such an officerwho is included in the zone of consideration has to be considered evenif disciplinary proceedings are pending against him. We find substancein the contention of the appellant-UPSC that the Selection Committeeacted strictly in accordance with the Regulations which are statutory AB

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Ain nature and the selection of respondent Nos.2 and 3 does not,therefore, suffer from any violation of statutory rules.

17. Selection from the State Civil Service to IAS is strictly onthe basis of merit, ability and suitability of the officers. In M.V.Thimmaiah and others v. Union Public Service Commission andBothers (2008) 2 SCC 119, it was held as under:- “21. Now, comes the question with regard to the selection ofthe candidates. Normally, the recommendations of the SelectionCommittee cannot be challenged except on the ground of malafides or serious violation of the statutory rules. The courts cannotsit as an Appellate Authority to examine the recommendationsof the Selection Committee like the court of appeal. Thisdiscretion has been given to the Selection Committee only andcourts rarely sit as a court of appeal to examine the selection ofthe candidates nor is the business of the court to examine eachcandidate and record its opinion…….

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36. Therefore, in view of a catena of cases, courts normally donot sit as a court of appeal to assess ACRs and much less theTribunal can be given this power to constitute an independentSelection Committee over the statutory Selection Committee. Theguidelines have already been given by the Commission as to howACRs to be assessed and how the marking has to be made.These guidelines take care of the proper scrutiny and not onlyby the Selection Committee but also the views of the StateGovernment are obtained and ultimately the Commission afterscrutiny prepares the final list which is sent to the CentralGovernment for appointment. There also it is not binding on theCentral Government to appoint all the persons as recommendedand the Central Government can withhold the appointment ofsome persons so mentioned in the select list for reasons recorded.……. This assessment cannot be made subject of court’s orTribunal’s scrutiny unless actuated by mala fide.

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37. …… The Selection Committee normally abides by theassessment made by the reporting officer and the reviewingauthority. But the Selection Committee is not powerless. Afterreviewing the candidates’ performance, the Selection Committee H

UNION PUBLIC SERVICE COMMISSION v. JAWAHARSANTHKUMAR AND OTHERS [R. BANUMATHI, J.]

can certainly make its own assessment. The guidelines whichhave been issued by the Commission also enable the SelectionCommittee to assess the remarks made by the reporting officeror the reviewing officer and after taking into consideration variousfactors like the meritorious work done or any punishment oradverse remarks made or subsequently expunged onrepresentation can review the assessment about the candidates.Such review of the assessment is fully within the competenceof the Selection Committee …...”

18. As pointed out earlier, the first respondent has been orderedto be promoted to the cadre of DRO by the order of the State Tribunaldated 26.06.2002. But the first respondent’s seniority was refixed on05.09.2005 vide G.O.Ms. No.924. Of course, the first respondent’sseniority was refixed by the State Government subsequent to theSelection Committee Meeting for 2004. The High Court held that hadthe first respondent’s seniority been fixed within reasonable time as perthe direction of the Tribunal, the first respondent’s classification/overallrating would have been correctly assessed by the Selection Committee.The High Court further held that when a candidate of doubtful integritywas considered, definitely, the first respondent would have also beenconsidered and promoted to the IAS and only because of the delayedaction of the State Government or improper action of the SelectionCommittee, the prospect of the genuine candidate should not be put atstake. With those findings, the High Court took the view that the firstrespondent has been victimised for the simple reason that he hasapproached the legal forum for redressal of his genuine grievances.

19. The learned Senior counsel for the first respondent hasreiterated the findings of the High Court and submitted that the HighCourt rightly observed that non-fixation of seniority as directed by theTribunal within a reasonable time has prejudicially affected the case ofthe first respondent in getting his promotion. The learned Senior counselsubmitted that as per Regulation 5(2), for inclusion in the Select List,the Committee shall consider the cases of members of State CivilService in the order of seniority and only because of delay in refixationof the seniority, name of the first respondent could not be included inthe Select List.

20. We find no merit in the above contention of the firstrespondent that his seniority would have enabled his name to be included AB

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Ain the Select List. As discussed earlier, gradation is made by theSelection Committee on the merits based on the relative assessment.Seniority would become relevant only when the merit of the candidatesis equal. Observing that the seniority is considered only where merit,ability and suitability are approximately equal, in R.S. Dass v. Unionof India and others 1986 (Supp) SCC 617, the Supreme Court heldBas under:- “18. The amended provisions of Regulation 5 have curtailed andrestricted the role of seniority in the process of selection as ithas given primacy to merit. Now the Committee is required tocategorise the eligible Officers in four different categories,Cnamely “Outstanding”, “Very Good”, “Good” and “Unfit” onoverall relative assessment of their service records. Aftercategorisation is made the Committee has to arrange the namesof officers in the Select List in accordance with the procedurelaid down in Regulation 5(5). In arranging the names in the SelectDList the Committee has to follow the inter se seniority of officerswithin each category. If there are five officers who fall withinthe “Outstanding” category their names shall be arranged in theorder having regard to their inter se seniority in the State CivilService. The same principle is followed in arranging the list fromamongst the officers falling in the category of “Very Good” andE“Good”. Similarly if a junior officer’s name finds place in thecategory of “Outstanding”, he would be placed higher in the listin 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. ThisFcannot be helped. Where selection is made on merit alone forpromotion to a higher service, selection of an officer though juniorin service in preference to his senior does not strictly amount tosupersession. Where promotion is made on the basis of seniority,the senior has preferential right to promotion against his juniorsbut where promotion is made on merit alone, senior officer hasGno legal right to promotion and if juniors to him are selected forpromotion on merit the senior officer is not legally superseded.When merit is the criteria for the selection amongst the membersof the service, no officer has legal right to be selected forpromotion, except that he has only right to be considered alongHwith others. In Gurdayal Singh Fiji v. State of Punjab (1981)

UNION PUBLIC SERVICE COMMISSION v. JAWAHARSANTHKUMAR AND OTHERS [R. BANUMATHI, J.]

4 SCC 419 this Court held that a member of State Civil Servicehas no legal right to promotion, instead he has only right to beconsidered along with others. But assuming that appellants/petitioners stood superseded by the reason that junior officers tothem were included in the Select List, no reasons were necessaryto be recorded in view of the amended statutory provisions.”

21. Re: Contention regarding down-grading and non-recording of reasons:- From the UPSC File No.F.6/18/2003-AIS,dated 24.12.2003, pertaining to the Select List of 2003, the ‘overallrelative assessment’ of the first respondent had been adjudged as “VeryGood” by the Committee. But, as per UPSC File No.F.6/18/2004-AISdated 18.12.2004 pertaining to the Select List of 2004, the ‘overallrelative assessment’ of the first respondent has been adjudged just as“Good”. The High Court held that there was no reason recorded asto why suddenly the first respondent has been down-graded in hisclassification/overall rating. The High Court has also pointed out thatShri T.K. Ponnusamy who was classified as “Unfit” for the Select Listof 2003, has been adjudged “Very Good” for the Select List of 2004which shows that the Selection Committee was not following uniformstandard in classifying/overall rating of the assessment of the individualwhich has a direct bearing on their selection to the IAS.

22. Power to classify the candidates is the function of theSelection Committee. In the process of selection under Regulations 5(4)and 5(5) of the Promotion Regulations, the Selection Committee is notrequired to record reasons by assigning overall relative assessment inrespect of the eligible officers or for selecting a junior officer, havinghigher merit, in preference to that of a senior officer. In R.S. Dass v.Union of India and others 1986 (Supp) SCC 617, the Supreme Courtheld that when any senior officer is superseded, the amended Regulation5(5) does not require the Committee to record reasons for thesupersession and that the amended Regulations do not require theSelection Committee to record reasons for the supersession of theofficers of the State Civil Service.

23. After referring to R.S. Dass, in K. Rajaiah, the SupremeCourt held as under:- “9. We cannot also endorse the view taken by the High Courtthat consistent with the principle of fair play, the SelectionCommittee ought to have recorded reasons while giving a lesser AB

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Agrading to the first respondent. The High Court relied on thedecision of this Court in National Institute of Mental Health& Neuro Sciences v. Dr. K. Kalyana Raman 1992 Supp (2)SCC 481. Far from supporting the view taken by the High Court,the said decision laid down the proposition that the function ofthe Selection Committee being administrative in nature, it is underBno obligation to record the reasons for its decision when there isno rule or regulation obligating the Selection Committee to recordthe reasons. This Court then observed: (SCC p. 485, para 7)

“Even the principles of natural justice do not require anadministrative authority or a Selection Committee or anexaminer to record reasons for the selection or non-selectionof a person in the absence of statutory requirement. Thisprinciple has been stated by this Court in R.S. Dass v. Unionof India 1986 Supp SCC 617 (SCC at p. 633)….”

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That being the legal position, the Court should not have faultedthe so-called down gradation of the first respondent for one ofthe years. Legally speaking, the term “downgradation” is an“”inappropriate expression. The power to classify as outstanding,“very good”, “good” and “unfit” is vested with the SelectionECommittee. That is a function incidental to the selection process.The classification given by the State Government authorities inthe ACRs is not binding on the Committee. No doubt, theCommittee is by and large guided by the classification adoptedby the State Government but, for good reasons, the SelectionFCommittee can evolve its own classification which may be atvariance with the gradation given in the ACRs.That is what hasbeen done in the instant case in respect of the year 1993-94.Such classification is within the prerogative of the SelectionCommittee and no reasons need be recorded, though it isdesirable that in a case of gradation at variance with that of theGState Government, it would be desirable to record reasons. Buthaving regard to the nature of the function and the powerconfided to the Selection Committee under Regulation 5(4), it isnot a legal requirement that reasons should be recorded forclassifying an officer at variance with the State Government’sdecision.” [Underlining added]

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24. The ratio of the above decision squarely applies to the casein hand. When the Selection Committee has given its own classification,the court cannot sit in appeal over the assessment made by theCommittee of experts. In Union Public Service Commission v.M. Sathiya Priya and others (2018) 15 SCC 796, the Supreme Courtheld as under:-

“17. The Selection Committee consists of experts in the field.It is presided over by the Chairman or a Member of UPSC andis duly represented by the officers of the Central Governmentand the State Government who have expertise in the matter. Inour considered opinion, when a High-Level Committee or anexpert body has considered the merit of each of the candidates,assessed the grading and considered their cases for promotion,it is not open to CAT and the High Court to sit over theassessment made by the Selection Committee as an appellateauthority. The question as to how the categories are assessed inlight of the relevant records and as to what norms apply in makingthe assessment, is exclusively to be determined by the SelectionCommittee. Since the jurisdiction to make selection as per lawis vested in the Selection Committee and as the SelectionCommittee members have got expertise in the matter, it is notopen for the courts generally to interfere in such matters exceptin cases where the process of assessment is vitiated either onthe ground of bias, mala fides or arbitrariness. It is not the functionof the court to hear the matters before it treating them as appealsover the decisions of the Selection Committee and to scrutinisethe relative merit of the candidates. The question as to whethera candidate is fit for a particular post or not has to be decidedby the duly constituted expert body i.e. the Selection Committee.The courts have very limited scope of judicial review in suchmatters.” [Underlining added]

25. In the present case, we find that neither the decision of theSelection Committee nor the decision-making process suffers from anyarbitrariness. Since there was down-grading of the first respondent forthe assessment year 2004, the first respondent was not included in theSelect List. On overall assessment of service records, the name of thefirst respondent was not included in the Select List due to the statutorylimit of its size and as officers with higher grading in the Select Listwere available as per the provisions of Regulation 5(5) of the A

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ARegulations. The High Court was not right in holding that the SelectionCommittee has miserably failed to assess all the aspects of the case intheir proper perspective and that the promotions made to the IAS forthe vacancies of the year 2004 is vitiated and the same is to be reviewed.The impugned judgment of the High Court cannot be sustained and isliable to be set aside.B

26. In the result, the impugned judgment dated 17.04.2008 passedby the High Court of Madras in Writ Petition No.33696 of 2007 is setaside and these appeals are allowed. Insofar as the challenge by thefirst respondent to G.O. Ms. No.1125 dated 26.11.2011, the same shallbe considered on its own merits without being influenced by any of theCviews expressed in this judgment.

Divya Pandey

Appeals allowed.

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