Orissa High Court
Sri Krishna Chandra Mohapatra And Ors. ... vs Union Of India (Uoi) And Ors. on 10 January, 2006
Equivalent citations: 101(2006)CLT201, 2006(I)OLR223
Author: M.M. Das
Bench: M.M. Das
JUDGMENT M.M. Das, J.
1. As all these writ petitions filed under Article 226 of the Constitution of India arise out of the same set of facts and involve common question of law pertaining to selection, promotion and appointment of the petitioners in all the aforesaid writ petitions except in W.P.(C) No. 4570 of 2005, to the cadre of Indian Administrative Service (for short, "I.A.S") from the cadre of Orissa Administrative Service, they were heard analogously, and are being disposed of by this common judgment.
2. W.P.(C) No. 4570 of 2005 has been filed by the Union Public Service Commission (for short, "U.P.S.C.") challenging the order dated 3.11.2004 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack (for short, "the Tribunal") in O.A. No. 1255 of 2003.
3. Three Original Applications, i.e., O.A. Nos. 1255 of 2003, 588 of 2003 and 2 of 2004 were filed by different persons, namely, Aswini Kumar Das, Dr. Prafulla Kumar Chaulia and Pramod Chandra Patnaik respectively before the Tribunal O.A. No. 1255 of 2003 was disposed of by the Tribunal by order dated 3.11.2004 and subsequently, the other two Original Applications were also disposed of in the light of the said judgment.
4. Judgment dated 3.11.2004 passed by the Tribunal in O.A. No. 1255 of 2003 is challenged by four petitioners in W.P.(C) No. 13132 of 2004, one petitioner in W.P.(C) No. 13446 of 2004 and the U.P.S.C. in W.P.(C) No. 4570 of 2005. The judgment passed in O.A. No. 588 of 2003 has been challenged in W.P.(C) No. 5644 of 2005 by one petitioner and the judgment in O.A. No. 2 of 2004 has been challenged in W.P.(C) no. 13153 of 2004 by four petitioners and in W.P.(C) No. 13445 of 2005 by one petitioner.
5. The judgments in O.A. Nos. 588 of 2003 and O.A. No. 2 of 2004 were passed by the Tribunal in terms of its earlier order dated 3.11.2004 passed in O.A. No. 1255 of 2003. Therefore, in these batch of six writ petitions, we are primarily concerned with the order dated 3.11.2004 passed by the Tribunalin O.A. No. 1255 of 2003. The result of all these writ petitions depends entirely on the fate of the order dated 3.11.2004 passed by the Tribunal in O.A. No. 1255 of 2003. If the challenge to the said order fails, all the aforesaid writ petitions will have to be dismissed and likewise, if the said order dated 3.11.2004 is quashed, all the writ petitions will have to be allowed by quashing the corresponding impugned orders of,, the Tribunal.
6. The operative part of the order of the Tribunal dated 3.11.2004 passed in O.A. No. 1255 of 2003 is quoted hereunder :
... to convene a review meeting of the Selection Committee to consider the punishment orders passed against some of the officers in the zone of consideration and to make fresh list of officers for promotion to IAS for the year 2002 in the light of the observations as made above. In effect we hereby quash the orders of promotion of OAS officers to IAS as ordered on 6.2.2004 vide Annexure-10. This exercise (meeting of the Review Committee) shall be completed within a period of 120 days from the date of receipt of this order.
Facts leading to the cases :
7. The petitioners in all the writ applications except W.P.(C) No. 4750 of 2005 and the applicants before the Tribunal are officers of Orissa Administrative Service (for short "OAS"). Eight officers from the cadre of O.A.S. were selected to be appointed on promotion to the cadre of I.A.S. for the year 2002. Three of the unsuccessful candidates filed Original Applications before the Tribunal challenging the said selection.
8. In Q.A. No. 1255 of 2003 filed by Shri Aswini Kumar Das, a challenge was made to the selection process assailing the recommendation of the selection committee which met on 13.5.2003 and made the said recommendation in terms of the Indian Administrative Service. (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as "the Regulation, 1955"). The applicant in the said O.A., inter alia, alleged that he is a direct recruit to the O.A.S. cadre, 1975 and has rendered outstanding service all through his career and was promoted to the respective higher grades as and when due and that the respondents 8 and 9 i.e., Shri Pramod Kumar Patnaik and Shri Jyoti Prakash Dash who were below him in the seniority list were illegally included in the select list prepared by the selection committee whereas his case was ignored. He further alleged that the selection committee deviated from the procedures of Regulations, 1955 while making the selection and further though ACRs for eight years are required to be looked into for a fair assessment of the consistency in the performance level, the selection committee took into consideration the ACRs for only five years. The applicant also stated that during last eight years though he has been continuously graded as outstanding in his ACRs, but the selection committee over-looked the same and also certain blemishes in the service record of the said Sri Pramod Kumar Patnaik and Shri Jyoti Prakash Das were not considered.. Allegations were also made against respondent No. 7 therein, i.e., Jagdish Prasad Agarwalla whose, involvement in a Departmental Proceeding ended in a punishment of "Censure" during the year, 1996 and who was also superseded, by stating that the selection committee did not take these facts into consideration. Similar allegations were also made against the other candidates selected by the committee.
9. In essence, therefore, the case of the applicant was that the selection committee has acted arbitrarily and in contravention of the Regulations, 1955 in preparing the selection list as they have not considered all relevant factors, which would be revealed from the service records of the officers who were within the zone of consideration. On the above pleadings the applicant in the said O.A. prayed for quashing the selection and recommendation of the selection committee dated 13.5.2003 and further to quash the subsequent orders based on such selection.
10. Some of the respondents in the O.A. filed their counter affidavits to the application made by the applicant before the Tribunal, separately. The UPSC which was respondent No. 3 in the said O.A. also filed a separate counter affidavit denying the allegations made by the applicant.
11. In paragraph-4.2 of the counter affidavit filed on behalf ' of the UPSC in the aforesaid O.A., it was stated as follows :
4.2. ... The Selection Committee is not guided merely by the overall gradin-g that may be recorded in the ACRs but in order to ensure fairness and objectivity makes its own assessment of the basis of in-depth examination of service records of eligible officers, deliberating on the quality of the officer on the basis of performance as reflected under various columns recorded by the Reporting/Reviewing Officer/Accepting Authority in ACRs for different years and then finally arrives at the classification to be assigned to each eligible officer in accordance with provisions of Promotion Regulations. While making an overall assessment, the Selection Committee takes into account orders regarding appreciation for meritorious work done by the concerned officer. Similarly, the Selection Committee also keeps in view orders awarding penalties or any adverse remarks communicated to the officer, which, even after due consideration of his representation have not been completely expugned.
12. From the records of the Tribunal it is revealed that on being called upon by the Tribunal', the applicant in the said O.A. was directed to file an affidavit after serving copies thereof on the other side and the respondent No. 2, i.e., the State of Orissa was also directed by the Tribunal to produce the records of the selection committee with all service particulars of the applicant and respondents 4 and 10 therein. The said affidavit was accordingly filed by the applicant. However, no counter affidavit to the said affidavit was submitted by any of the respondents therein.
13. The Learned Tribunal, as it appears from the records and the impugned order passed in the said O.A., examined the records produced before it and after hearing the parties, issued a direction as already quoted above.
14. O.A. No. 2 of 2004 was filed by another unsuccessful candidate, namely, Shri Pramod Chandra Patnaik making similar allegations against the process of selection made by the selection committee and the Learned Tribunal following the judgment it passed in O.A. No. 1255 of 2003 on 3.11.2004 allowed the said O.A. by quashing the notification dated 6.2.2004 and passed a similar order directing the respondents therein to convene a review meeting of the selection committee to make a fresh list for promotion to the cadre of I.A.S. for the year, 2002.
Similar is the case in O.A. No. 588 of 2003 filed by one Dr. Prafulla Kumar Chaulia.
Submissions made on behalf of the writ petitioners :
15. In all the aforesaid writ applications, Mr. J. Patnaik, Mr. Sanjit Mohanty, Learned Senior Advocates and other Learned Advocates appearing for the petitioners submitted that the impugned judgment passed by the Tribunal in O.A. No. 1255 of 2003 suffers from infirmities and illegalities as well as the said order has been passed in excess of jurisdiction vested in the said Tribunal and as such, the impugned order cannot be sustained in law.
16. The gravamen of the argument advanced on behalf of the petitioners is that the Tribunal while passing the impugned order dated 3.11.2004 has acted as an Appellate Court over the decision of the selection committee by entering into the question of assessment made by the said committee while categorizing the officers who were included in the zone of consideration as "outstanding", "very good", "good" or "unfit". It was further argued on behalf of the petitioners that under the Regulations, 1955 as amended, the selection committee is not required to assign reasons in support of its decision/ selection and the Learned Tribunal could not have made a roving enquiry by calling for the records of the Selection committee and thereafter coming to a different conclusion thereon. It was further contended that the Tribunal has no jurisdiction to substitute its opinion with regard to the number of years of service records to be considered by the selection committee while selecting candidates under Regulations 1955. Reliance was placed on the decisions in the cases of R.S. Dass v. Union of India and Ors. etc., ; S.N. Mukherjee v. Union of India ; National Institute of Mental Health & Neuro Sciences v. Dr. k. Kalyana Hainan and Ors. , Durga Devi and Anr. v. State of H.P. and Ors. ; Mrs. Anil Katiyar v. Union of Indii and Ors. and U.P.S.C. v. K. Rajaiah and Ors. in support of the contentions rafsed on behalf of the petitioners that the selection committee is not required to record reasons in support of its conclusions and that the scheme contained in the Regulations excludes applicability of the rule of audi alterm partem by implication. Learned Counsel also contended that since the selection committee is constituted of high ranking officers and there is also element of plurality in the process of decision making and further the Regulations do not require the selection committee to support its conclusion by recording reasons therefor, the selection made by the said committee cannot be subjected to judicial review. In view of the above position, it was contended that the Tribunal has grossly erred in setting aside the selection made by the committee by sitting over the said decision as an Appellate Court.
Submissions made on behalf of the opposite parties who were applicants before the Tribunal :
17. Mr. G.A.R. Dora and Mr. R.K. Rath, Learned Senior Counsel appearing on behalf of the opp. parties who were applicants before the Tribunal vehemently argued in support of the impugned orders passed by the Tribunal, contending that the Tribunal has not committed any error in setting aside the selection made by the selection committee and the appointment orders issued pursuant thereto. It was submitted by the learned counsel that though the Regulations, 1955, as amended, do not require recording of reasons for selection or non-selection of any candidate to be appointed on promotion to the IAS cadre, but in the instant case, the Tribunal has found as a matter of fact that punishment imposed on Shri Jagdish Prasad Agrawal was not reflected in his ACR and, therefore, the selection committee had no occasion to consider the effect of such punishment while assessing the inter se merit of the officers included in the zone of consideration. In reply to the contentions made on behalf of the petitioners that the selection having been made on assessment of inter se merit of the officers by the committee consisting of high ranking responsible officers of the State and Central Government presided over by the Chairman or a member of the U.P.S.C., there is no reason to hold that they would not act in fair and impartial manner in making the selection, it was contended by the Learned Counsel that admittedly, except the ACRs, the selection committee having not scrutinized any other service records while assessing the inter se merit of the officers and the Tribunal having found that the punishment imposed on Shri Agrawalla was not reflected in his ACR, it cannot be contended that the "Tribunal has exceeded its jurisdiction or has acted contrary to law in setting aside the selection made by the selection committee. In support of the above contention, reliance has been placed on the case of R.S. Das (supra). Mr. R.K. Rath, Learned Senior Counsel relying upon the decisions in the cases of Gurdial Singh Fijji v. State of Punjab and Ors. ; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. and Union of India and Ors. v. E.G. Nambudiri, submitted that though the Regulations, 1955 do not require reasons to be stated by the selection committee, but reasons for such selection must exist and should either appear from the ultimate decision or should be able to be gathered if the proceeding of the selection committee is produced before the Court. On the above basis, it was contended that no fault can be found with the approach of the Tribunal in passing the impugned judgment as the Tribunal being unable to gather the reasons for such selection rightly called for the records of the selection proceeding and, as a matter of fact, found that the punishment imposed on Shri Agarwal was not reflected in his ACR. Learned Counsel submitted that even nothing was pointed out by the U.P.S.C. before the Tribunal regarding the norm/procedure followed by the selection committee while making the selection nor the same has been reflected in the writ application filed by the U.P.S.C. before this Court.
Learned Counsel, therefore, contended that the orders passed by the Tribunal are not assailable and should not be interfered with.
Submissions made by the Learned Advocate General :
18. Mr. B.K. Mohanty, Learned Advocate General appearing on behalf of the State Government produced copies of the correspondences made between the State Government and the U.P.S.C. in relation to the selection of the officers of O.A.S. cadre to be appointed on promotion to the IAS cadre for the year 2002. The Learned Advocate General referring to certain earlier letters submitted that all service records with respect to each of the officers included in the zone of consideration were sent to the selection committee and they are presumed to have been considered by it while making the selection.
Submissions of the Assistant Solicitor General on behalf of the U.P.S.C. :
19. Mr. Mishra, Learned Assistant Solicitor General appearing on behalf of the U.P.S.C. while submitting that the Tribunal has acted illegally in setting aside the selection made by the Selection committee and supporting the averments made in the Writ Application [W.P.(C) No. 4570 of 2005] filed by the U.P.S.C. vehemently argued that the direction issued by the Tribunal to convene a review meeting of the selection committee and take a fresh decision for preparing a fresh selection list for promotion to the cadre of IAS for the year 2002 by taking into consideration the service records of 8 (eight) years is untenable. He further submitted that the Tribunal has exceeded its jurisdiction in concluding that at least eight years' service records should be considered though the Apex Court in various cases had not found fault with the principle of considering the service records for five years preceding the year for which the selection is made. Relying upon the decision in the case of Union Public Service Commission v. Hiranyalal Dev and Ors. , Mr. Mishra submitted that the Apex Court in the said case has specifically held that it is the exclusive function of the selection committee as to how to categorize in the light of the relevant records and which norms to apply, in making the assessment and the Tribunal cannot make a conjecture as to how the selection committee would have acted and as to what norms are to be applied for this purpose.
20. Considering the submissions made on behalf the rival parties, we are of the view that the main thrust of the argument of the petitioners is that the Tribunal has acted as an Appellate Forum against the decision of the selection committee which it has no jurisdiction to do and further the Tribunal should not have found fault with the process of selection made by the selection committee consisting of high ranking officers of the Union and the State Government and chaired by the Chairman or the representative of the U.P.S.C. The other question raised is as to whether the selection made by, the selection committee under the Regulations, 1955 can be subjected to judicial review ?
21. The Regulations 5(1) to 5(5) of the Regulations, 1955 as it stood then, came up for interpretation before the Supreme Court in the case of Union of India v. M.L. Capoor and Ors. . The Supreme Court held that it was a mandatory obligation on the committee to record reasons if it proposes supersession of a senior member of the State Civil Service. The Supreme Court further held that since no reasons were recorded, the committee had failed to discharge a mandatory obligation as a result of which the list prepared by it was rendered illegal.
22. The said Regulation 5 of the Regulations 1955 was, however, amended by notification dated 3.1.1977 and after the amendment, Regulations 5(4) and 5(5) read as under:
5(1) to 5(3) *** *** *** 5(4). The Selection Committee shall classify eligible officers as "Outstanding", "Very Good", "Good" or "Unfit" as the case may be on an overall relative assessment of their service record. , 5(5). The list shall be prepared by including the required number of names, first from amongst officers finally classified as "Outstanding", then from amongst those similarly classified as "Very Good", thereafter from amongst those similarly classified as "Good" and the order of the names inter se within each category shall be, in the order of their seniority in the State Civil Service.
On a bare reading of the above Regulations, it is clear that the selection committee while classifying the eligible officers as "outstanding", "very good", "good" or "unfit", shall do so on an overall relative assessment of their service records and the selection committee is not required to mention the reasons for such gradation or selection.
23. It is, therefore, clear that the selection committee is required to take into consideration and assess the service records of the officers within the zone of consideration for classifying them to various categories as provided in the said Regulations 5(4) and 5(5). "Service record", in our view, cannot mean only ACRs but should include all other relevant records reflecting the performance of the candidates as Civil Servants under the State.
24. During the course of hearing of all these cases, a memorandum was filed on behalf of the U.P.S.C. enclosing thereto the minutes of the meeting dated 13.8.2003 of the selection committee constituted under the Regulations, 1955. We have perused the said minutes which states in paragraph-7 thereof that the committee examined the records of the officers who fulfilled the conditions of eligibility upto the year 2000-2001 as the crucial date of eligibility was 1.1.2002. A copy of the letter dated 12.8.2004 addressed to the Senior Central Government standing Counsel appearing on behalf of the U.P.S.C . before the Tribunal by the Deputy Director (AIS) U.P.S.C. has been produced before us, the contents of which are quoted hereunder:
Sir, I am directed to refer to your letter dated 23.7.2004 on the subject and to say that the service records of eligible officers referred in Para-4.2 are the ACR dossiers provided by the State Government for the purpose of making assessment for promotion of SCS/SPS/SFS officers to the IAS/IPS/IFS.
Though the Learned Advocate General has produced a copy of letter dated 28.11.2002 and relying on the same submitted that the entire service records of the officers included in the zone of consideration were sent to the U.P.S.C. but it is clear from the letter quoted above that such documents relating to the service records of the concerned officers were never placed before the selection committee and the selection committee only considered the ACRs of the concerned officers.
25. Admittedly, it is revealed from the records that the penalty of "censure" inflicted on Shri jagdish Prasad Agarwal in a departmental proceeding vide Government of Orissa Order No. Misc. (A) 82/94-23573/GEN. Dated 26.8.1996 was not reflected in his ACR which was scrutinised by the selection committee. Though it is submitted1 by the Learned Counsel for the petitioners and the Learned Counsel for the U.P.S.C. that the said penalty imposed on Shri Jagdish Prasad Agarwalbeing beyond five years preceding the date till which service records were assessed, the said fact of non-reflection of the penalty in the ACR of Shri Jagdish Prasad Agarwal in irrelevant for the purpose of this case. We find from the minutes of the meeting of the selection committee, produced before us, that the relevant date till which the ACRs were assessed, was 1.1.2002. It is, therefore, clear that five years' records preceding 1.1.2002 would be the records pertaining to the years, 1996-97, 1997-98, 1998-99, 1999-2000 and 2000-2001 and would include the date i.e., 26.8.1996 on which the penalty of "censure" was imposed on Shri Jagdish Prasad Agarwal and the ACR for the year ending March, 1997 should have reflected infliction of the above penalty.
We are, therefore, unable to accept the above submissions made by the Learned Counsel for the petitioners and the U.P.S.C.
26. There is no doubt that under the Regulations 5(4) of the Regulations, 1955 as amended in 1997, the selection committee is not required to assign any reason in support of the selection or non-selection of a candidate. But the question remains as to whether reasons for such selection or non-selection should be available in any contemporaneous documents prepared during the process of selection or the U.P.S.C. should produce the materials before the Court for its perusal though copies of the same may not be served on the parties, disclosing the procedure followed by the selection committee for making the selection.
Power of Judicial Review :
27. It is, no doubt, true that it has been repeatedly held by the Supreme Court in various decisions cited by the parties that there exists a presumption to the fairness of selection in view of the plurality of the selection committee consisting of high ranking officers of the Union and the State Government and the Chairman or the representative of the U.P.S.C. It, however, cannot be concluded on the above premises that the decision of such a selection committee is infallible and thereby making it unassailable in the Court of law and is immune from judicial review. It was observed by the Supreme Court in the case of Onkar Lal Bajaj etc. etc. v. Union of India and Anr. etc. etc., AIR 2003 SC 2562 as follows :
The roll model for governance and decision taken thereof should manifest equity; fair play and justice, the cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision-making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interest and nepotism and eschew window dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious action. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate.
28. In the case of Sayed T.A. Naqshbandi and Ors. v. State of Jammu & Kashmir and Ors. , the Supreme Court observed that judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Crucial or independent analysis or appraisal of the materials by the Courts exercising powers of judicial review unlike the case of an Appellate Court, would neither be permissible nor conducive to the interests of either the officers concerned or the system and institutions. It was further observed in the said decision that the grievances must be sufficiently substantiated to have firm or concrete basis on properly established facts and further proved to be well justified in law, for being countenanced by the Court in exercise of its powers of judicial review. The Supreme Court in the case of The Comptroller and Auditor General of India v. K.S. Jagannathan and Anr. upon considering a large number of decisions including the decisions in the cases of Dwarka Nath v. Income Tax Officer and Anr. ; Hochtief Gammon v. State of Orissa,, ; R. v. Revising Barrister for the Borough of Hanley, (1912) 3 KB 518 and Padfield v. Minister of Agriculture, Fisheries and Food, 1968 AC 997 and Halsbury's Laws of England, 4th Edn. Vol. I para 89; (SCC pp. 692-93, para 20) observed that there is no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ or pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a Statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials (emphasis supplied) or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. It further held that in all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority and in a proper case, in order to prevent injustice resulting to the parties concerned, the Court may itself pass an order or give directions which the Government or the public authority should have passed order had it properly and lawfully exercised its discretion.
29. However, in the case of Union of India and Anr. v. S.B. Vohra and Ors. while dealing with the power of judicial review, the Supreme Court held that the question as to whether the Court should permit judicial review and if any, to what extent, will vary from case to case and no broad principle can be laid down therefor.
Even in the case of R.S. Dass (supra) while dealing with a case under the Regulations, 1955, the Supreme Court has held :
The Appellants/Petitioners' entertain an apprehension that in the absence of reasons the sel'ection would be made in an arbitrary manner overlooking 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 reason there would be no objectivity and the members of the State Civil Service would receive discriminatory treatment by the committee. The scheme contained in promotion regulations and the criteria prescribed therein for preparing the select list do not justify any such apprehension. The principal object of the promotion system as contained in the regulations is to secure the best possible incumbents for promotion to the Indian Administrative Service, which is the backbone of the administrative machinery of the country. The efficiency of the administration in the Union as well as in the State largely depends upon the efficiency of the members of the Indian Administrative Service. Efficient public service is in public interest and the public interest is best secured if reasonable opportunity for promotion exist for all qualified members of the State Civil Service and only those who are found efficient and suitable in all respects are promoted. This object is sought to be achieved by the Regulations in prescribing merit as the sole test for promotion. In order to judge the merit the regulations provide for categorization of eligible members of the State Civil Service on the basis of their service records which are scrutinized by the Committee consisting of high ranking officers of the State Govt. and the Central Govt. The service records of all eligible officers whose names are included in the proposed select list and the records of even those who are not selected are again scrutinized by the State Govt. and the Union Public Service Commission and only thereafter final shape is given to the selection list. There are, therefore, adequate checks and safeguards at different stages by different authorities. But if any dispute arises with regard to the arbitrary exclusion of a senior member of the State Service the matter can always be investigated by perusing his service records and comparing the same with the service record of officers who may have been preferred and that would certainly disclose the reasons for the supersession of the senior officer. It is true that where merit is the sole basis for promotion, the power of selection becomes wide and liable to be abused with less difficulty. But that does not justify presumption regarding arbitrary exercise of power. The machinery designed for preparation of select list under the regulations for promotion to All India Service, ensures objective and impartial selection. The Selection Committee is constituted by high ranking responsible officers presided over by Chairman 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 the power to refer the matter to the Commissionn 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 that is an adequate safeguard against the arbitrary exercise of power.
(Emphasis supplied.)
30. It is clear from the above observations of the Supreme Court that if allegations are made regarding arbitrary exclusion of a senior member of the State Service, the Court can investigate the matter by perusing his service records and comparing the same with the service records of other officers who may have been preferred and in making such comparison it would disclose the reason for the supersession of the senior officer. We are constrained to add that on examining the entire matter, if the Court comes to a conclusion that all relevant records were not placed before the selection committee for its consideration for which some officers who might not have been selected, have been selected, the Court would not restrain itself in such a case to direct reconsideration of the matter by the selection Committee.
31. It appears from the records of the Tribunal that during course of the proceeding, considering the allegations/disputes made/ raised by the applicant, the Tribunal called for the records of the selection committee and perused the same. Upon perusal of the same, the Tribunal came to the following finding.
... On perusal of the service records for five years in respect of Res. Nos. 7,8,9 and 10 vis-a-vis the applicant, we find that all the above private Respondents have been assessed as "out standing" for each of the five years strictly according to the entries contained in their respective confidential Reports. However, we do not find in the confidential report folder of Res. No. 7 any copy of the punishment order dated 26.8.1996 nor has there been any entry made to that effect in his ACR. It is an well established procedure of personnel management that whenever an officer is visited with punishment or even non-statutory warning, a copy of the punishment and/or warning is placed in his confidential report folder and a remark regarding awarding of punishment also is recorded in the annual confidential report of the year. In the instant case, apparently, this action was not taken as a result of which, the Selection Committee did not have any occasion to know that Shri Agarwal (Res. 7) was in fact awarded a punishment of "Censure" in the year 1996-97 ....
The Tribunal, of course, held that the allegations brought against respondent No. 8 do not stand to reason. It also took note of the fact that law is well settled that it is not the function of the Tribunal to sit in appeal over the decision of the Selection Committee and to scrutinize the relative materials of the candidates. But finding that materials were not properly reflected in the ACRs it held that the selection made on the basis of consideration of the ACRs alone by the selection committee is unsustainable.
32. Learned counsel or the petitioners placing reliance upon a recent decision of the Supreme Court in the case of U.P.S.C. v. K. Rajaiah and Ors. (supra) submitted that in the said case where facts are almost similar to the present case, the Supreme Court while setting aside the order of the High Court by which the selection made by the committee was interfered with held that the assumption underlying the writ petitioner's contention that the ACRs do not reflect the details of awards and commendations and the penalties is not correct. Therefore, the substratum of the reasoning of the High Court that relevant materials in the form of service registers were not made available to the selection committee for scrutiny collapses. Learned Counsel for the petitioners further submitted that the Tribunal could not have found fault with the process of selection just because the selection was made on consideration of ACRs only.
33. On perusal of the aforesaid decision of the Supreme Court, we find that the facts of the said case are distinguishable from the present case inasmuch as in the said case, it was observed by the Supreme Court that though the broad stand taken by the U.P.S.C. in the counter affidavit filed before the Tribunal/High Court and also in the memorandum of special Leave Petition does not spell out the precise reason as to why the respondent who was graded "outstanding" for three years preceding the year under consideration was not selected, certain facts including the actual procedure that is being followed by the U.P.S.C. to evaluate the candidates were projected in the course of arguments and certain documents were placed before the Supreme Court for its perusal though the copies thereof were not served on the respondent's counsel. However, in the present case, though the U.P.S.C. has filed its counter affidavit before theTribunal and has filed an independent writ petition being W.P. (C) No. 4570 of 2005 before this Court and though it has stated that the entire ACRs dossiers of eligible officers are the basic inputs on the basis of which eligible officers are categorized as "outstanding", "very good", "good" or "unfit" in accordance with the provisions of Regulation 5(4) of the Promotion Regulations and that the selection is not guided merely by the overall grading that may be recorded in the ACRs but in order to ensure fairness and objectivity, the selection committee makes its own assessment on the basis of deep examination of the service records of eligible officers, deliberating on the quality of the officer on the basis of performance as reflected under various columns recorded by the Reporting/Reviewing Officer/Accepting Authority in the ACRs for different years and then finally arrives at the classification to be assigned to each eligible officer in accordance with the provisions of Promotion Regulations and further stated that while making overall assessment, the selection committee takes into account orders regarding appreciation for meritorious work done by the concerned officer and keeps in view the orders awarding penalties or any adverse remarks communicated to the officer, but it has neither stated nor has made out a case as to why the finding of the Tribunal that ACRs of some of the officers did not contain the punishment imposed on such officers and, as such, there was no scope for the selection committee to consider the same, is factually incorrect. Though the State of Orissa has produced before this Court a copy of the letter dated 28.11.2002 in support of its case that the entire service records were sent to the selection committee, but such a case was not made out before the Tribunal. Be that as it may, we are unable to find any infirmity in the findings and the conclusion of the Tribunal with regard to non-consideration of certain materials by the Selection Committee while considering the cases of the officers within the zone of consideration for making the gradation and the finding that the ACRs did not contain any entry with regard to punishment or adverse remarks made against some of the officers.
34. With regard to the contentions of the Learned Counsel for the petitioners that the Tribunal has acted erroneously and contrary to law in observing that the selection committee should consider the service records for eight years preceding the year for which the selection was made, we find much force in the said submission as, practically, in all the cases cited before us, five years service records were considered. We are also of the view that scrutinizing the service records of the officers for the preceding five years'to grade them as per Regulations 5(4) is fair and reasonable.
35. Hence, while declining to interfere with the impugned judgments dated 3.11.2004 in O.A. No. 1255 of 2003, dated 6.12.2004 in O.A. No. 588 of 2003 and dated 4.11.2004 in O.A. No. 2 of 2004 passed by the Tribunal, we modify the same to the extent that while holding the review meeting, the selection committee will take into consideration the service records of the officers included in the zone of consideration for five years preceding the date "1.1.2002".
36. With the above modification in the impugned judgments, all the writ applications are dismissed, but in the circumstances, there shall be no order as to costs.
Sujit Barman Roy, C.J.
37. I agree.