Jammu & Kashmir High Court
Jeet Lal Gupta And Anr. vs State Of J And K And Ors. on 23 February, 2004
Equivalent citations: 2004(1)JKJ495
JUDGMENT V. K. Jhanji, J.
1. These two writ petitions, SWP No. 1950/2003, Jeet Lal Gupta v. Union of India and Ors., and SWP No. 96/2004, M. Yamin Qureshi and Anr. v. State of J&K and Ors., have been preferred against the common judgment and order dated 29th September, 2003, passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh, (hereinafter referred to as "the Tribunal") in TA Nos. 66-JK/2002 and 18-JK/2003, dismissing the above two TA petitions.
2. Briefly stated, the facts are that Jeet Lal Gupta, writ petitioner in SWP No. 1950/2003, acting on the news items appearing two newspapers, namely, Himalayan Mail and Kashmir Times in their issues dated Ist February, 2003 and 7th February, 2003 respectively, that Government of India was likely to induct State Civil Service Officers into Indian Administrative Service, filed writ petition, SWP No. 164/2003 before this Court. In that writ petition, the petitioner sought a restraint against the respondents prohibiting them from implementing the decision, if any, taken for making induction into the latest Indian Administrative Service Promotion quota vacancies. The challenge, ostensibly, was to the Select List of 2002 on the ground that the Selection Committee did not record any reasons in excluding his name and including the names of Junior Officers in the Select List. The writ petition came up before the learned Single Judge on 10th February, 2003 when it was transferred to the Tribunal for disposal.
3. Before the Tribunal, the contention of Jeet Lal Gupta was that two officers, namely, K. B. Jandial and G. A. Peer, had been included in the Select List ignoring his well-founded claim for induction into Indian Administrative Service by the Selection Committee, though, according to the petitioner, the aforesaid two officers were junior to the petitioner with comparatively lower merit. The petitioner pleaded that he had a preferential claim for induction into Indian Administrative Service on the basis of his seniority, ability, merit, suitability and outstanding record of service. He called in question the decision of the Selection Committee in this regard on the ground of being arbitrary and violative of Articles 14 & 16 of the Constitution of India. His other contention before the Tribunal was that he was promoted to the Special Grade of Kashmir Administrative Service in the State in January 1999 and was also in the consideration zone for promotion to the Suppertime Scale, as his performance for 1994-95 was "outstanding". His case was that he had been ignored from being inducted into Indian Administrative Service without assigning any reason by the Selection Committee. He contended that the Selection Committee did not take a judicious view and, rather, a discriminatory treatment was meted out to him by ignoring his seniority, merit, suitability and his outstanding performance all along.
4. Similarly, M. Yamin Qureshi and I. S. Wazir, the two writ petitioners in the other writ petition, SWP No. 96/2004, filed writ petition, SWP No. 1831/2002 before this Court in which they prayed for directing the respondents to appoint them to Indian Administrative Service cadre vacancies "which were still available". The petition was filed in July, 2002 and the petitioners did not challenge any specific Selections or Select List in their writ petition. That petition was disposed of by a learned Single Judge of this Court vide order dated 17th July, 2002. However, the petitioners filed Review Petition No. 10/2003 along with an application for condonation of delay. When the Review Petition came up before the learned Single Judge on 29th October, 2002, the learned Single Judge, while allowing the application for condonation of delay, ordered transfer of the whole matter to the Tribunal for disposal. The contention of these two petitioners before the Tribunal was that they were excluded from consideration for their induction into Indian Administrative Service solely on the ground that they did not fall within the zone of consideration, being over-aged. Their contention was that the Selection Committee did not meet for many years, which resulted in their attaining the age of 54 years. According to them, the rules prescribed that the period/years during which the Selection Committee meeting was not held had to be excluded for calculating the age of eligibility. According to them, the Selection Committee did not meet in the years 1995-96, 1996-97 and 1997-98 and, by reasonable interpretation of the rules, they were entitled to get three years addition as far as age of eligibility was concerned. They cited examples of some officers, namely, S/sh. Lekh Raj Sharma, G. N. Wani and Mohd. Aslam, who, according to them, had been considered for induction into Indian Administrative Service even after having attained the age of 54 years.
5. The Tribunal did not find any merit in the submissions made on behalf of either Jeet Lal Gupta or M. Yamin Qureshi and I. S. Wazir, and, accordingly, dismissed the two petitions. As already noticed, the present two writ petitions are against the common order passed by the Tribunal and are being disposed of by us by this common order.
6. We have heard learned counsel for the parties and have gone through the record of the case.
7. The first submission of learned counsel appearing on behalf of Jeet Lal Gupta, petitioner in SWP No. 1950/2003, is that the Select List is vitiated on the ground that the Selection Committee did not record any reasons for superseding the petitioner by excluding his name and including the names of K. B. Jandial and G. A. Peer who, according to him, were junior to the petitioner. The other submission of learned counsel for the petitioner, Jeet Lal Gupta, is that the Selection Committee erroneously took into consideration the Annual Confidential Rolls (Annual Performance Reports) of K. B. Jandial and G. A. Peer, though they were not complete in all respects inasmuch as most of the Annual Confidential Rolls in their respect were signed only by the Initiating Officer, but were not submitted to the Reviewing and the Accepting Authority. The precise submission of learned counsel is that incomplete Annual Confidential Rolls could not be taken into consideration while judging the merit and suitability of these two officers vis--vis the petitioner.
8. On behalf of M. Yamin Qureshi and I. S. Wazir, learned counsel contended that they had very good service record but they were not considered solely on the ground that they were more than 54 years of age as on the first day of January of the year in which the Selection Committee met. Their contention is that the Selection Committee had not met during the years 1995-96, 1996-97 and 1997-98 and, therefore, they were entitled to be considered after giving them the benefit of three years during which the Selection Committee had not met.
9. Before we consider the submissions made on behalf of the petitioner, Jeet Lal Gupta, we deem it necessary to refer to the relevant statutory provisions regulating promotion of members of State Civil Service to the Indian Administrative Service. The Central Government, in exercise of its powers under Rule 8(1) of the Indian Administrative Service (Recruitment) Rules, 1954, has framed the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as "the Regulations") laying down procedure for selection for appointment to the Service by promotion. Regulation 3 of the Regulations 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 of the Schedule to the Regulations. Regulation 5 of the Regulations 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 on an overall relative assessment of the service. This list prepared by the Committee is forwarded to the Commission by the State Government along with the records of members of those selected as well as of those who were considered but not included in the Select List together with the observations of the State Government on the recommendation of the Committee. Regulation 7 of the Regulations provides that the Union Public Service Commission (hereinafter referred to as "the Commission") shall consider the list along with the documents received from the State Government and, on its approval, the list so approved shall form the Select List of the members of the State Civil Service. The Select List shall ordinarily be in force until a fresh list is prepared and approved for the subsequent year. Regulation 8 of the Regulations lays down that appointment of members of the State Civil Service shall be made by the Central Government on the recommendations of the State Government in the order, in which the names of the members of the State Civil Service appear in the Select List.
10. The Regulation, which is relevant in context of the facts of the present case, is Regulation 5 of the Regulations, which reads as under:
"5. Preparation of a list of suitable officers. -- (i) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the Service. The number of members of the State Civil Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held, in the posts available for them under Rule 9 of the Recruitment Rules. The date and venue of the meeting of the Committee to make the Selection shall be determined by the Commission;
Provided that no meeting of the Committee shall be held, and no list for the year in question shall be prepared when:
(a) there are no substantive vacancies as on the first day of January of the year in the posts available for the members of the State Civil Service under Rule 9 of the Recruitment Rules; or
(b) the Central Government in consultation with the State Government decides that no recruitment shall be made during the year to the substantive vacancies as on the first day of January of the year in the posts available for the members of the State Civil Services under Rule 9 of the Recruitment Rules; or
(c) the Commission, on its own or on a proposal made by either the Central Government or the State Government, after considering the facts and circumstances of each case, decides that it is not practicable to hold a meeting of the Committee to make the selection to prepare a select list.
Explanation. -- In the case of Joint cadres, a separate select list shall be prepared in respect of each State Civil Service.
(2) The Committee shall consider for inclusion in the said list, the cases of members of the State Civil Services in the order of a seniority in that service of a member which is equal to three times the number referred in said Regulation (1);
Provided that such restriction shall not apply in respect of a State where the total number of eligible officer is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers;
Provided further that in computing the numbers for inclusion in the field of consideration, the number of officers referred to in Sub-regulation (3) shall be excluded;
Provided also that the Committee shall not consider the case of a member of the State Civil Services unless on the first day of January of the year in which it meets he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government.
Provided also that in respect of any released Emergency Commissioned or short Service Commissioned Officers appointed to the State Civil Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of the January of the year in which the Committee meets, in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government.
Explanation. -- The powers of the State Government under the third proviso to this sub-regulation shall be exercised in relation to the members of the State Civil Service of a constituent State, by the Government of that State.
(3) The Committee shall not consider the cases of the members of the State Civil Service who have attained the age of 54 years on the first day of January of the year in which it meets.
Provided that a member of the State Civil Service whose name appears in the select list in force immediately before the date of the meeting of the Committee and who has not been appointed to the Service only because he was included provisionally in the select list shall be considered for inclusion in the fresh list to be prepared by the Committee, even if he has in the meanwhile attained the age of fifty four years;
Provided further that a member of the State Civil Service who has attained the age of fifty-four years on the first day of January of the year in which the Committee met shall be considered by the Committee, if he was eligible for consideration on the first day of January of the years or of any of the years immediately preceding the year in which such meeting is held but could not be considered as no meeting of the Committee was held during such preceding year or years.
(3-A) The Committee shall not consider the case of such a member of State Civil Service who had been included in an earlier list and --
(a) had expressed his unwillingness for appointment to the Service under Regulation 9;
Provided that he shall be considered for inclusion in the select list if, before the commencement of the year, he applies in writing, to the State Government expressing his willingness to be considered for appointment to the Service;
(b) was not appointed to the Service by the Central Government under Regulation 10.
(4) The Selection Committee shall classify the eligible officers as 'Outstanding', 'Very Good', 'Good' or 'Unfit' as the case may be, on an overall relative assessment of their Service records.
(5) The list shall be prepared by including the required number of names, first from amongst the officers finally classified as 'Outstanding' then from amongst those similarly classified as' Very Good' and thereafter from amongst those similarly classified as 'Good' and the order of names inter se within each category shall be in the order of their seniority in the State Civil Police Service;
Provided that the name of any officer so included in the list, shall be treated as provisional if the State Government withholds the integrity certificate in respect of such officer or any proceedings are contemplated or pending against him or anything adverse against him has come to the notice of the State Government."
11. Under Regulation 5(1) of the Regulations, the number of State Civil Service officers, who are to be included in the list of suitable officers prepared by the Selection Committee, is specified as the number of substantive vacancies anticipated in the course of the period of twelve months. Under Regulation 5(2), the number of officers required to be considered is provided to be three times the number which is to be finally included in the list. The number of officers required to be considered under Regulation 5(2) for selection in the list may be referred to as 'Officers within the zone of consideration'. Under Regulation 5(3), persons above the age of 54 years on the first day of January of the year in which the Selection Committee meets are not eligible for being considered. The first proviso to Regulation 5(3), however, states that a member of the State Civil Service, whose name appears in the immediately preceding Select List in force shall be considered for inclusion in the fresh list even if he has, in the meanwhile, attained the age of 54 years. The second proviso to Regulation 5(3) states that, if during any immediate preceding year/years, a person was eligible for consideration but could not be considered because no meeting of the Selection Committee was held that year, such a person will also be considered by the Selection Committee even though he may have, in the meanwhile, attained the age of 54 years. In other words, the candidates, who would have been within the zone of consideration, if the Selection Committee had met during the year but who lost the chance because the Selection Committee did not meet, are given a chance to be considered at the first available opportunity even though they may have, in the meanwhile, attained the age of 54 years.
12. Learned counsel for the parties have fairly conceded that the Regulations clearly provide for the selection of candidates on the basis of merit on the overall relative assessment of their service record. As a necessary corollary, therefore, in the process of preparing the Select List, if the senior officers are not found suitable for promotion and their names are not included in the Select List and if Junior Officers are found suitable for inclusion of their names in the Select List, the senior officers stand superseded, as the selection is made on the basis of merit on the overall assessment of their service record and not on the basis of seniority.
13. In regard to the submission that Select List for the year 2002 is vitiated on the ground that the Selection Committee did not record reasons for superseding the petitioner, Jeet Lal Gupta, and including the names of K. B. Jandial and G. A. Peer, learned counsel has cited Union of India v. M.L. Capoor, AIR 1974 SC 87; Uma Charan v. State of Madhya Pradesh, S. C. Services Law Judgments Vol. TV, 179 and Gurdial Singh Fijji v. State of Punjab, (1982) 1 SCR 904 : AIR 1981 SC 2015.
14. On the other hand, learned counsel appearing on behalf of the respondents submitted that in Union of India v. M.L. Capoor and Gurdial Singh Fijji v. State of Punjab (supra), the case under consideration before the Supreme Court related to the un-amended Regulations. According to them, under the amended Regulations, the Selection Committee is required to categorise the officers in four categories on the basis of overall assessment of their service record. After categorization, the Committee is required to place the name of those officers first on the list who may be categorised as "Outstanding" and, thereafter, names of those officers are to be included who are found to be "Very Good". And only thereafter the names of those officers have to be included who may be categorized "Good". Further, according to the learned counsel if, in this process, any senior officer is superseded, the amended Regulation 5(5) does not require the Selection Committee to record reasons for the supersession. In support of this submission, the learned counsel have cited R. S. Dass v Union of India, AIR 1987 SC 593 in which their lordships of the Supreme Court have considered not only the amended 1955 Regulations but also the judgments in Union of India v. M.L. Capoor and Gurdial Singh Fijji v. State of Punjab (supra).
15. We have carefully gone through and considered the judgments cited by the learned counsel for parties as also the un-amended and amended Regulations.
16. It is not in dispute that the size of the Select List for the year 2002 was six. In all eighteen Officers were in the zone of consideration. S/shri M. S. Khan, K. B. Jandial and Ghulam Ahmed Peer were at S. Nos. 7, 15 and 17 of the eligibility list, whereas petitioner, Jeet Lal Gupta, was at S. No. 8 thereof. The Selection Committee, on the basis of in-depth examination and scrutiny of the service record of the eligible officers and on the basis of their performance as reflected in various columns of the Annual Confidential Rolls of these officers for different years, assessed M. S. Khan, K. B. Jandial and G. A. Peer as "Outstanding" and, on the basis of such assessment, they were placed at S. Nos. 1, 2 and 3 in the Select List. The Officers, who figured at S. Nos. 1, 2 and 3 of the eligibility list, were assessed as "Very Good" by the Selection Committee and were included in the Select List at Sr. Nos. 4, 5 and 6. Petitioner, Jeet Lal Gupta, who was at Sr. No. 8 of the eligibility list, on an overall relative assessment of his service record, was assessed as "Very Good". His name, however, could not be included in the Select List due to the limited size of the Select List, which was only six in number. The pre-amended Regulation 5(2) provided that the selection for inclusion in the Select List shall be based on merit and suitability in all respects with due regard to seniority. The amended Regulation 5 of the Regulations prescribes that the Selection Committee shall prepare the list of such members of the State Civil Service as are held by them to be suitable for promotion to the All India Service. In other words, in terms of the amended provision of Regulation 5, seniority in the State Civil Service is inconsequential for determining the suitability of the officers for induction into All India Service. The amended Regulation 5 has curtailed and restricted the role of seniority in the process of selection as it has given primacy to merit.
17. Their lordships of the Supreme, in R.S. Dass v Union of India (supra), had the occasion to exhaustively deal with the un-amended and the amended provision of Regulation 5 of the Regulations. It would be advantageous to quote hereunder paragraphs 18 and 19 of the judgment:
"18. The amended provisions of Regulation 5 have curtailed and restricted the role of seniority in the process of selection as it has given primacy to merit. Now the Committee is required to categorise the eligible officers in four different categories, namely, "Outstanding", "Very Good", "Good" and "Unfit" on overall relative assessment of their service record. After categorisation is made the Committee has to arrange the names of officers in the select list in accordance with the procedure 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 falling within the "Outstanding" 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 is 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 right to promotion against his juniors but where promotion is made on merit alone, senior officer has no legal right to promotion and if juniors to him are selected for promotion on merit the senior officer is not legally superseded. When merit is the criterion for the selection amongst the members of the service, no officer has legal right to be selected for promotion, except that he has only right to be considered along with others. In Gurdayal Singh Fijji v. State of Punjab, (1982) 1 SCR 904 : AIR 1981 SC 2015, this Court held that a member of State Civil Service has no legal right to promotion, instead he has only right to be considered along with others. But assuming that appellants/petitioners stood superseded by the reason that junior officers to them were included in the select list, no reasons were necessary to be recorded in view of the amended statutory provision.
19. Learned counsels urged that reasons if recorded ensure objectivity and impartiality. In the absence of reasons the Committee may act in arbitrary manner to supersede senior officers, which would be violative of Articles 14 and 16 of the Constitution. We find no merit in the submission. Article 16 ensures equality in matters relating to appointment and promotion to an office or post under the State. It enjoins State not to practice discrimination in matters relating to appointment and promotion. A member of the State Civil Service eligible for selection for promotion to the I. A. S. has right to be considered along with others for selection for promotion. If eligible officers are considered on merit, in an objective manner no Govt. servant has any legal right to insist for promotion nor any such right is protected by the Articles 14 or 16 of the Constitution. Article 16 does not insist that reasons should be recorded for the non-selection of a member of a State Service."
In the light of the law laid down by their lordships of the Supreme Court in the above case, the issue is no more res integra and, therefore, it cannot be said that, while including the names of K. B. Jandial and G. A. Peer in the Select List, reasons were necessarily to be recorded or that, in strict legal sense, the petitioner was superseded or his non-inclusion in the Select List was arbitrary.
18. Learned counsel for the petitioner, Jeet Lal Gupta, submitted that the Tribunal did not call for the service records of the writ-petitioner and that of K. B. Jandial and G. A. Peer and that resulted in manifest injustice to the petitioner as the Tribunal was not in a position to objectively consider the submissions made by the petitioner.
19. It is true that the Tribunal did not call for the Annual Confidential Rolls of the officers for its scrutiny. It may be because of the limited scope of judicial review of the merits of the selection made for appointment to a service that the Tribunal proceeded on the basis that it was not expected to play the role of an appellate authority or an umpire in the acts and proceedings of Selection Committee and that it could not sit in judgment over the selection made by the Selection Committee. Selection can be assailed only on being vitiated by mala fide or on the ground of its being arbitrary. Herein, it is not the case of the petitioner that the selection by Selection Committee is vitiated by mala fides. We are in full agreement with the view taken by the learned Tribunal in the light of judgments of the Supreme Court that the Tribunal or the High Court does not sit in appeal over the decision taken by the Selection Committee. This is so for the reason that when an expert committee constituted for the purpose has considered the respective merits of the candidates, assessed their grading and considered their cases for selection, the courts are not to sit as an appellate authority over the assessment made by the Selection Committee. Nevertheless, in order to satisfy ourselves, we summoned the service records of the petitioner and respondents. On going through the Annual Confidential Rolls and the remarks given in various columns thereof it is found that, in some columns, Jeet Lal Gupta has been rated as 'Outstanding' and in others as 'Very Good'. Likewise, K. B. Jandial and G. A. Peer, in some columns of their Annual Confidential Rolls, have been rated as "Outstanding" while "Very Good" in some of the columns. As regards integrity, all the three officers have been rated above-board. Notwithstanding what emerges from the Annual Confidential Rolls, the question, which arises for consideration, is whether this Court is competent to arrogate to itself the power to judge the comparative merit of the candidates and consider their suitability and fitness for selection. The answer is simply no, because it is not the function of this Court to hear appeals over the decision of Selection Committee and to scrutinize the relative merit of the candidates. This Court does not have the expertise or machinery to determine the merit, suitability and fitness of competing or eligible candidates on the basis of assessment of their respective service records. In this regard it would be appropriate to quote herein the observations of the Supreme Court in Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, (1990) 1 SCC 305:
"9. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee, which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so-called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction."
20. The last submission of Shri S. K. Raina, learned counsel appearing on behalf of Mr. Jeet Lal Gupta, is that the Annual Confidential Rolls of K. B. Jandial and G. A. Peer were not complete in all respects, in as much as most of them were signed only by the Initiating Officer, but were not submitted to the Reviewing and Accepting Authorities and, therefore, incomplete Annual Confidential Rolls could not have been taken into consideration while judging the merit and suitability of these two officers, namely, K. B. Jandial and G. A. Peer.
21. On perusal of the Annual Confidential Rolls for the years 1995-96, 1996-97, 1997-98, 1998-99, 1999-2000 and 2000-2001, we find that in two Annual Confidential Rolls for the years 1995-96 and 1996-97 of Jeet Lal Gupta only the Initiating Officer has filled in the various columns and signed it, and the same do not appear to have been submitted to the Reviewing and Accepting Authorities. No certificate has been recorded to the effect that the Reviewing or Accepting Authority had demitted office on the date the Selection Committee had met. Likewise, some of the Annual Confidential Rolls of K. B. Jandial and G. A. Peer have been signed only by the Initiating Officer and have not been submitted to the Reviewing and Accepting Authorities. Admittedly, all the Annual Confidential Rolls have been written and signed by the Initiating Officer. The Officers have no role to play in submitting the Annual Confidential Rolls to the Reviewing or Accepting authorities; that is the function of the Initiating Officer. The only role assigned to the officer, whose Annual Confidential Rolls are to be maintained by the State Government, is to record his 'Self Assessment' for the preceding financial year by or before 30th April of the following year. After the Self Assessment is received by the Initiating Officer, under whom the officer has worked for the maximum period of the year under report, the Initiating Officer is to record his comments about Self Assessment of the officer, being reported upon and fill in the appraisal column on his performance for the year under report and submit the same to the Reviewing Authority on or before the end of June of the following year. The Reviewing Authority, thereafter, is to review and submit the report for the year to the Accepting Authority by 15th July. The report is to be completed as far as possible by the end of July of the following year. It may be pertinent to mention here that the procedure for writing Annual Confidential Rolls has been laid down in Government Order No. 1311-GAD of 2001 dated 9th November, 2001, which clearly provides that the Initiating/Reviewing Authority, who fails to write the Confidential Rolls will himself come under adverse comment by the next superior officer at the time of writing his Annual Performance Report. The crux of the matter is that the Officer, whose Annual Performance or Confidential Roll is to be written, has no role in the same, except giving his Self Assessment Report. Therefore, on that count, the private respondents could not be held liable or ineligible for selection. Otherwise too, the petitioner before the learned Tribunal did not take any such point nor such a plea has been taken in the writ petition. This Court will not go into a plea not taken before the Tribunal or even in the writ petition. Further more, as already observed, it was for the Selection Committee to consider the comparative merit of the candidates at the time of scrutinizing their respective service records. It is not the function of this Court to scrutinize the service record and sit as an appellate authority over the decision made by the Selection Committee - a competent body having the requisite expertise - who have examined and assessed the service record. When a high level committee has considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, the decision of such Committee is not subject to judicial review (see Nutan Arvind v. Union of India, (1996) 2 SCC 488), especially so when no mala fides are alleged, muchless proved.
22. Moreover, in terms of Regulation 7, a Select List is required to be approved by the Commission after receiving observations from the State Government and the Central Government as envisaged under Regulation 6 and Regulation 6-A of the Regulations. The Select List for the year 2002 prepared by the Selection Committee in its meeting held on 31st December, 2002 and 29th January, 2003 is yet to be approved by the Commission as it has not been notified and no appointment orders have been issued by the Central Government. The petitioners have challenged the Select List only on the basis of news items appearing in newspapers. Therefore, on this count too, the writ petition deserves to be dismissed.
23. As regard the petitioners, M. Yamin Qureshi and I. S. Wazir, it may be relevant to state here that, in their petition before the Tribunal, they did not specifically challenge any Select List. They had actually filed a writ petition before this Court, which was transferred to the Tribunal by this Court for its disposal. In that writ petition the Union Public Service Commission (respondents 4 & 5 herein), had filed counter-affidavit wherein it was stated that no meeting of the Selection Committee was held during the years 1995-96, 1996-97 and 1997-98 (during the period 1.4.1997 to 30.12.1997). However, the Selection Committee met on 22nd September, 1998 consequent upon which the Select List for the year 1998 was prepared by the Selection Committee. Since that Select List was prepared in accordance with the provisions of 1955 Regulations, amended on 31.12.1997, some officers, who had attained the age of 54 years as on 1.1.1998, but were eligible as on 1.4.1995, 1.4.1996 and 1.4.1997, i.e., the respective crucial dates for the years for which the meeting could not be held, were also considered. Petitioners, S/sh. M. Yamin Qureshi and I. S. Wazir, were also considered, but could not be included in the Select List due to their lower position in the seniority list and due to the statutory limit on the size of the Select List. That Select List was approved by the Commission vide their letter dated 23rd July, 1999. The next Select List was prepared by the Selection Committee which met on 6th December. 1999. The size of the Select List was six and in all twenty-one officers were in the zone of consideration. The petitioners did not fall within the zone of consideration for this Select List due to their lower position in the Seniority List of State Civil Service. The Select List for the year 1999 was approved by the Commission vide letter dated 31st July, 2000 and appointments were made vide Government of India Notification dated 18th September, 2000. The Select List for the year 2000 was prepared pursuant to the Selection Committee's meeting held on 26th December, 2000. Both the petitioners were considered but again they, being lower in seniority of the State Civil Service, could not be included in the Select List. This Select List was approved by the Commission on 8th March, 2001 and appointments were made pursuant to Government of India Notification dated 16th March, 2001. The 2001 Select List was prepared by the Selection Committee pursuant to meeting held on 28th November, 2001. There was only one vacancy. The petitioners did not fall within the zone of consideration being lower in seniority position. The Select List was approved by the Commission on 2nd April, 2002 on which date both the petitioners had crossed the age of 54 years. Appointments, pursuant to this Select List were also made.
24. It may be mentioned here that the petitioners filed the writ petition, SWP No. 1831/2002, which was later transferred to the Tribunal, was filed before this Court in the month of July, 2002. Mention of the above fact is relevant and necessitated because the 2002 Select List was prepared pursuant to Selection Committee's meetings held on 31st December, 2002 and 29th January, 2003, that is, much after the filing of the writ petition by the petitioners. Therefore, the Selection List of 2002 could not be the subject matter of challenge in the writ petition filed in July, 2002 subsequently transferred to the Tribunal.
25. From the above it is clear that these two petitioners were considered for the Select List of 1998 and 2000 but they could not be included therein because of their lower seniority position and statutory limit on the size of the Select List. Further, none of their juniors were selected pursuant to the selections made during these years. The petitioners did not fall within the zone of consideration for the Select Lists of 1999 and 2001, therefore, they could not have been considered. According to Union Public Service Commission, the Select Lists of 1998, 1999, 2000 and 2001 had since been approved and acted upon long back. It was submitted by learned counsel for the Commission that S/shri M. Yamin Qureshi and I. S. Wazir, being more than 54 years of age as on Ist day of January, 2002, could not be considered for the Select List of 2002, though that Select List, as already noticed, could not be subject matter of the petition before the Tribunal. In light of these facts, under Regulation 5(3), the petitioners being not eligible, the Tribunal was right in holding that these two petitioners were not eligible for being considered for selection. It is not a case where the benefit of Regulation 5(3) of the Regulations was not given to the petitioners insofar as the Selection Committee did not meet during the years 1995-96, 1996-97 and 1997-98. When the Selection Committee met on 22nd September, 1998, the petitioners were duly considered but, due to limited size of the Select List and the petitioners being lower in seniority position of the Officers of State Civil Service, they could not be included in the Select List. They were also considered by the Selection Committee in its meeting held on 26th December, 2000 but again could not be included in the Select List for the same reason. The petitioners seem to be labouring under a misconception that since Selection Committee did not meet for three years, therefore, they had necessarily to be included in the list as and when the meeting was held. That is not the case. The petitioners had only the right of consideration and that was duly accorded to them, but could not be included in the list due to the statutory limitation on its size. Therefore, the petitioners cannot make any grievance on this score.
26. The prayer of the petitioners that the respondents be directed to appoint them against the Indian Administrative Service vacancies, which, according to them were still available, is wholly untenable. There is a set and established procedure, as noticed, for making selection of State Civil Service Officers and their induction into the Service. Such a direction, dehors the Regulations, cannot be issued by this Court, especially so when the petitioners were considered for the same at the relevant time and are now ineligible being beyond the prescribed age limit of 54 years. The Tribunal has adequately dealt with other contentions raised by the petitioners and we fully agree with those findings of the Tribunal.
27. In view of the above, no case is made out for interference with the order of the learned Tribunal. The writ petitions are, accordingly, dismissed.