Central Administrative Tribunal - Bangalore
S J Chandrashekar vs Environment And Forest on 14 August, 2024
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O.A.No.170/317/2022/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00317/2022
DATED THIS THE 14th DAY OF AUGUST, 2024
Order Reserved on: 30.07.2024
Date of Order: 14.08.2024
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
S.J.Chandrashekar
S/o.Jogaiah, Aged about 60 years
Retired Deputy Conservator of Forest
R/O No.25, 7th block, Near Triveni Circle
Shakthi Nagar, Mysore - 570 029 ...Applicant
(By Advocate Shri.Veerendra Patil)
Vs.
1. Government of India
Ministry of Environment Forest and Climate Change
Paryavarm Bhawan, 6th Floor, Aliganji
New Delhi - 110 003
2. Union Public Service Commission
Dholpur House, New Delhi - 110 003
3. Chief Secretary, Government of Karnataka
Vidhanasoudha - 560 001
4. Additional Chief Secretary to Forest
Ecology & Environment
Room No.448, Gate No.2, 4th Floor
M.S.Building,Bangalore- 560 001
5. Principal Chief Conservator of Forest &
(Head of the Forest Force),
AranayaBhavan, Malleshawarm, Bangalore - 56003
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O.A.No.170/317/2022/CAT/BANGALORE
6. Inspector of General of Forest (NTCA)
Ministry of Environment, Forest and Climate Change
New Delhi - 110 011
7. Inspector of General of Forest (WL)
Ministry of Environment Forest and Climate Change
New Delhi - 110 011
8. Jawaid Akhtar, IAS Additional Chief Secretary (FEE),
Forest, Environment and Ecology Department,
Karnataka Government Secretariat, Room No.448, Gated
No.2, 4th Floor, M.S.Building, Bangalore - 560 001
9. Sanjay Mohan, Retired Principal Chief Conservator of
Forest & (Head of the Forest Force), 14th Block, 11th
Tower, Prestige Apartment, Door No.11091, 9th Floor
Gangamma Circle, Jalahalli,
Bangalore-560 013 ...Respondents
(By Advocate Shri.S.Prakash Shetty for R1, 6-7, Shri.S.Sugumaran
for R2 and Shri.M.Raja Kumar for R 3-5)
ORDER
PER: DR. SANJIV KUMAR, MEMBER (A)
This Original Application has been filed under Section 19 of the Administrative Tribunals Act 1985 to seek the following relief:
" 1. Quash the Impugned Order dated 31.3.2021 issued by the respondent no.1 in vide order No.F.No.17013/02/2021-IFS-II which is produced and marked as Annexure A-6 (in respect of applicant concern)
2. Quash the Impugned Notification dated 30.5.2022 issued by the Respondent no.1 No.F.No.17013/02/2021-IFS-II which is produced and marked as Annexure A-7 (In respect of Applicant concern) 3 O.A.No.170/317/2022/CAT/BANGALORE
1. Issue a direction to the Respondents No.1 to 7 Consider the representation dated 9.6.2022 given by the applicant which is marked as Annexure A-8
2. Issue such other order or direction as may be deemed fit to grant in the circumstances of the case in the ends of justice and equity. "
2. On the various grounds as enumerated in paragraphs V(1) to (7), the basic facts of the applicant as mentioned in this Original Application are that the Selection Committee for appointment to Indian Forest Service from the Karnataka State Forest Service was held on 15.02.2022 at the Union Public Service Commission, New Delhi, chaired by one of the Members of the UPSC and other 5 members of the Committee and the applicant was graded 'unfit' while assessing the suitability of the officers for promotion to the Indian Forest Service. Applicant asserts that the Committee did not take into consideration of the fact that the adverse remarks in the ACRs of the officers were not communicated to him.
3. It is further asserted that the Committee were informed by the State Government that no court case has a bearing on the select list and as no adverse remarks were communicated to the applicant, so the 4 O.A.No.170/317/2022/CAT/BANGALORE obvious inference is that the applicant has no adverse remark in any of the years and if it was communicated to him, he could have got an opportunity to make a representation against such adverse remark.
And the Selection Committee has given 'unfit' grading for the Selection Years 2015, 2016, 2017 and 2018. It is further asserted that an officer can be declared as 'unfit' only if the officer has been imposed with a penalty which renders him unfit on overall assessment and not merely on basis of a disciplinary/criminal proceeding pending against him. The applicant had served till his retirement without facing disciplinary/criminal proceeding and cost of penalty also. The applicant further asserts that he had filed a contempt petition No.66/2021 against Shri.Sanjai Mohan, the Principal Chief Conservator of Forests, Karnataka , Shri.Jawaid Akhtar, Additional Chief Secretary (Forest), Government of Karnataka and others and due to which, the authorities manipulated his ACRs with an intention to give him unfit grading and the said officers were not eligible to participate in the Selection Committee in respect of applicant.
4. It is further contended that on 30.5.2022, respondent no.1 passed a notification to appoint 29 officers of the State Forest Service of Karnataka to the Indian Forest Service on the basis of inclusion of 5 O.A.No.170/317/2022/CAT/BANGALORE their name in the select list for the year 2013 to 2020. His main contention is that non-communication of adverse entries in the Annual Confidential Reports of a public servant, affects the applicant's chances for promotion and get other benefits. Hence such non- communication would be arbitrary and violative of Article 14 of the Constitution. On the grounds as assailed, the applicant contends that his Original Application should be allowed and the relief claimed should be granted.
5. On notice, respondent no.2, the Union Public Service Commission, has filed their reply statement separately and for Respondent nos.1, 6 & 7, another reply statement is filed by Government of India and for Respondent no.3 to 5, the State Government has filed reply statement. After that, no rejoinder has been filed by the applicant.
6. The O.A came up for final hearing on 30.7.2024. The learned counsel Shri.Veerendra Patil for the applicant, Shri.S Sugumaran for respondent no.2 and Shri.M.Raja Kumar for respondent nos.3 to 5 were present and heard.
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7. We have carefully gone through the entire record and considered the rival contentions.
8. Certain basic facts and time line of the case which is not disputed are that the Committee meeting for the appointment to Indian Forest Service from State Forest Service of Karnataka for the years 2013 to 2020 was conducted on 15.2.2022 at New Delhi in the chairmanship of one of the UPSC Member, and 5 other members were present in the meeting. That selection list was finally notified on 31.3.2022 and appointment orders were issued only on 30th May 2022 and it is a fact that the applicant had retired on 28.2.2022 although few days later than the DPC, but much before the select list came out and the order of appointments were notified.
9. The primary issue for our consideration that if the order of appointment by promotion of the case in hand happened almost three months later than the date of retirement of the applicant and select list was notified on 31.3.2022, and in case even if the applicant now is declared fit, let us examine if he can be eligible to get an appointment by promotion as IFS Officer.
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10. The preliminary issue of date of UPSC approved list notification on 31.3.2022 and how it will make the case of the applicant even if he is otherwise eligible needs to be examined with reference to earlier decisions of the Division Bench of this Tribunal in a similar O.A 443/2022 and other related matters vide its order dated 16.4.2024, wherein the Tribunal has categorically ruled that as per the existing rules of the Indian Forest Service Appointment by Promotion Regulation 1966, it is essential that on appropriate date when the UPSC approves the Select List and notified, the person should be a member of the State Forest Service and the Tribunal concluded that "if someone had retired from service on that date and is not a member of the State Forest Service, he cannot be appointed by promotion to the Indian Forest Service even if he is otherwise eligible and is in the select list".
11. In the case before us, the applicant has not found his name in the select list as he was classified as 'unfit' for the years for which he was considered and the select list was notified on 31.3.2022 by the UPSC and the applicant had retired earlier than that date on 28.2.2022. Hence even if the applicant is now declared fit on the said date of 31.3.2022 he will not be eligible to get appointment to IFS 8 O.A.No.170/317/2022/CAT/BANGALORE cadre. It was ruled in the O.A No.443/2022 filed by Sri.Sudarshan ND and O.A No.482/2022 filed by Sri.Devaraja being devoid of merit and were dismissed. At length the issue has been examined in the said order dated 16.4.2024 in O.A No.443/22 and other connected matters.
12. Based on the above mentioned decision, we do not find any ground to differ from the conclusions and decision in the said O.A. Hence, the case of the applicant is fit to be summarily closed as infructuous even without going into the merits of the case as no one has right to appointment by promotion to Indian Forest Service after their date of superannuation, when they are no longer a member of the State Forest Service. And it is not a promotion from State Forest Service to Indian Forest Service, but it is a new appointment by promotion and it must be strictly as per the rules and regulations prescribed thereon.
13. But as the applicant has taken other substantive contentions, let us examine them one by one. The main contention of the applicant is that two of the Selection Committee members, one Shri.Jawaid Akhtar, Additional Chief Secretary (Forests) Karnataka and Shri.Sanjai Mohan, the Principal Chief Conservator of Forests, 9 O.A.No.170/317/2022/CAT/BANGALORE Karnataka were prejudiced against him and they manipulated his ACRs as the applicant had filed a contempt petition against him. But this ground has no convincing basis as merely filing of certain contempt case, the departmental authorities cannot be considered prejudiced and that is not sufficient reason to exclude them from the Selection Committee constituted under Regulation 3 of the Indian Forest Service (Appointment by Promotion) Regulation, 1966 for preparation of year-wise Select List of 2013 to 2020 of members of the State Forest Service of Karnataka who are suitable for promotion to the Indian Forest Service of Karnataka cadre against the vacancies of 2013 to 2020. Moreover, in the Committee there are other 4 independent and more Senior Officers including the Member of UPSC and the Chief Secretary of Government of Karnataka and Inspector General of Forest (NTCA), Ministry of Environment, Forests & Climate Change, New Delhi and Inspector General of Forest (WL), Ministry of Environment, Forests & Climate Change, New Delhi. Hence this ground has no force to convince us.
14. The said contention has been controverted by the State Government in their reply statement and we do not find any relationship between filing of any contempt petition and prejudice and 10 O.A.No.170/317/2022/CAT/BANGALORE imputing that these authorities were responsible for non-availability of his ACRs for the relevant years 2016-2017 and 2017-2018 is also not acceptable and is not convincing to say that the officers themselves are more responsible than the applicant. As the applicant has not been able to show that he had initiated his ACR in time. He pointed out that there are rules that when ACR of an officer is not initiated in time, the authorities could have started and initiated such ACRs unilaterally. But there is clear rule also that it is the responsibility of the officer reported to initiate his ACR in time. And imputing of blame on senior officers will not make a convincing case of any prejudice as canvassed by the applicant. Hence the ground of prejudice taken by the applicant is not convincing at all.
15. In his rejoinder also, the applicant has only re-emphasised the point that if the officer to be reported upon fails to submit the self- appraisal by the stipulated date, the reporting officer should obtain another blank CR form and proceed to write the report on the basis of his experience of the work and conduct of the officer reported upon and while doing so, he should also point out the failure of the officer reported upon to submit his self-appraisal within the stipulated time which should be viewed adversely. So he imputes that ACRs for the 11 O.A.No.170/317/2022/CAT/BANGALORE years 2016-17 and 2017-18 purposefully were misplaced with an intention to give the grading to the applicant 'unfit' as he had also filed a Contempt Petition against the authorities in an earlier case of posting and transfer of the applicant against the IFS cadre post etc. But this ground is not substantiated by any cogent reasons. Hence, this is not at all convincing and acceptable contention.
16. Another ground taken by the applicant is that no adverse remark in the ACR was communicated to him so he could not defend or represent against the same before the appropriate authority for its upgradation. And the non-communicated ACR should not have been adversely applied against him. We find that there is no clear evidence to that effect before us.
17. The main contention of the State Government is that as per the information given by the administrative department i.e, the Forest department, the grading of the applicant was not adverse and as it did not affect his promotion within his existing State cadre of SFS in any way, there is no need for communication of such ACRs to the applicant. Hence, there is no need for communication of any such ACR grading and the applicant has also not at any point of time made 12 O.A.No.170/317/2022/CAT/BANGALORE any representation to find about his ACRs and its contents to contest the same. We also at this delayed stage do not find this argument to be meritorious to be further examined. We are of the considered opinion that at this juncture even if we come to a conclusion that the ACR of the applicant needs to be communicated to him, before taking them adversely against him, there would be both practical and legal impediments. Practical impediment being, as already discussed the case of the applicant cannot be retrospectively declared in the Select List of IFS (Appointment by Promotion) before the date of his retirement from the State Forest service. And legal impediment being that the Selection Committee under the UPSC Chairman/Member for preparing the Select List has independent power to assess the ACRs of the applicant and their evaluation of the grading need not be same as the grading given by the state authorities, as we have at length discussed later in this order, in the light of a catena of decisions of the Hon'ble Supreme Court.
18. At the time of argument, it was further argued that the State Government has mentioned in their reply statement dated 17.6.2023 that for the year 2011-12, the applicant was graded 'Good' whereas the reply statement dated 10.01.2023 of UPSC, mentions that for the 13 O.A.No.170/317/2022/CAT/BANGALORE year 2011-12, the applicant was graded 'Average'.
We have further gone through the records and find that for the year 2011-12, the reporting officer has graded the officer 'Average' and the Reviewing Authority has agreed to the same, but the Accepting Authority has written that 'The report and review are generally accepted. The officer is responsive to the public need and is sympathetic to the weaker section of society. I would upgrade his grading as 'Good'.' But no clear reasons are assigned for such upgradation. Hence, the applicant asserts that the UPSC has wrongly tabulated him as graded 'Average' for the year 2011-12 and based on that, they made him 'unfit' for the relevant years of 2015, 2016, 2017 and 2018 and based on that fact, the Committee has not appreciated the facts correctly, so his case should be re-examined afresh. But the respondent UPSC has pointed out in their paragraph 2.5, which asserted the following:
"2.5. The ACRs of eligible officers are the basic inputs on the basis of which eligible officers are categorized as 'Outstanding', 'Very Good', 'Good' and 'Unfit' in accordance with the provisions of Regulation 5(3AA) of the Promotion Regulations. The Selection Committee is not guided merely by the overall grading that may be recorded in the ACRs but makes its own assessment on 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 14 O.A.No.170/317/2022/CAT/BANGALORE various columns recorded by the Reporting Officer/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 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 expunged. "
Simple reading of the above shows that the Selection Committee is not guided by the overall grading that may be recorded in the ACRs but makes its own assessment on the basis of service records of eligible officers, deliberating on the quality of officers on the basis of performance as reflected under various columns recorded by the Reporting Officer/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 provisions of promotion regulations.
19. This assertion is in no way controverted by the applicant in his rejoinder and hence we have to accept that this is the general practice of selection process and selection process has to be strict and precise 15 O.A.No.170/317/2022/CAT/BANGALORE to take an overall view of the ACRs of various officers during various years of reporting. We have also gone through the ACR of the officer for the year 2011-12 and we find that not much details have been given apart from brief description of duties. Brief self-assessment of the work done by the government servant including objectives set for himself and objectives achieved etc are not very clearly defined. The only mentioned aspect is attending pending wildlife offence cases as investigating officer to reduce the number of cases and objective achieved are 'almost all the wildlife cases of 2010-11 in the sub- division been cleared except few which lagging because of lack of proper records and with respect to encroachments eviction of Forest land in the span of 4 months Conducted 64-A proceedings of Karnataka Forest Act 1963 and passed many order as per Law.'
20. But no objective statement on meritorious work as an achievement is forthcoming and in various aspects, except for relation with the public, the Reporting Officer has graded him as 'Average' and overall grading is assessed as average. Reviewing Officer has agreed with the Reporting Authority. Whereas the Accepting Authority has upgraded his overall grade to 'Good' but without assigning any cogent reason. So as asserted by the UPSC, respondent no.2 and as 16 O.A.No.170/317/2022/CAT/BANGALORE per their procedure of Committee for Selection, the Committee had re- assessed and considered the applicant as 'Average' Officer for the year 2011-12 although, it may look different than the report of the State Government as his grading which was upgraded by the Accepting Authority to 'Good'.
21. But we have no grounds to sit in judgment over the overall assessment of the Selection Committee constituted under Regulation 3 of the Indian Forest Service (Appointment by Promotion) Regulations, 1966 for preparation of year-wise Select List of 2013 to 2020 of members of the State Forest Service of Karnataka who are suitable for promotion to the Indian Forest Service of Karnataka Cadre against the vacancies of 2013 to 2020. We are satisfied with the argument of the UPSC in this regard.
22. Further, the UPSC has asserted that the matter relating to assessment made by the Selection Committee has been earlier contested before the Hon'ble Apex Court in number of cases.
In the case of Nutan Arvind v. Union of India and Others (1996 2SCC 488) , the Hon'ble Supreme Court held as under:
"When a high level Committee had 17 O.A.No.170/317/2022/CAT/BANGALORE considered the respective merits of the candidates, assessed the grading and considered their cases of promotion, this court cannot sit over the assessment made by the DPC as an appellate authority. "
They further cited the case of UPSC v. K.Rajaiah and Others (2005 AIR SCW 3275) wherein the Hon'ble Supreme Court has held that:
"That being the legal position, the Court should not have faulted the so called down gradation of the 1st respondent for one of the years. Legally speaking, the term 'down gradation' is an inappropriate expression. The power to classify as 'outstanding', 'very good', 'good' and 'unfit' is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State Government authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large guided by the classification adopted by the State Government but, for good reasons, the Selection Committee can evolve its own classification which may be at variance with the gradation given in the ACRs. That is what has been done in the instant case in respect of the year 1993-
94. Such classification is within the prerogative of the Selection Committee and no reasons need be recorded, though it is desirable that in a case of gradation at variance with that of the State Government, it would be desirable to record reasons. But having regard to the nature of the function and the power confided to the Selection Committee under Regulation 5(4), it is not a legal requirement that reasons should be recorded for classifying an officer at variance with the State Government's decision."
They further cited the decision of the Hon'ble Supreme Court in the matter of UPSC v. H.L Dev and others (AIR 1988 SC 1069). 18
O.A.No.170/317/2022/CAT/BANGALORE "How to categorise in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee. The jurisdiction to make the selection is vested in the Selection Committee"
23. Clearly, these three judgments, particularly the last one, UPSC v. H.L Dev and Others reported in AIR 1988 SC 1069 supports the contention of the respondent UPSC in their reply statement in paragraph 2.5 that the Selection Committee is not guided merely by the overall grading but makes its own assessment on the basis of examination of service records of eligible officers deliberating on the quality of the officer on the basis of performance as reflected under various column recorded by the Reporting Officer/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 provisions of Promotion Regulations.
24. Hence, as ruled by the Apex Court how to categorise in the light of relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee. The jurisdiction to make the selection is vested in the Selection Committee. The issue that even there is contradiction between the tabulation of ACR by the State Government and UPSC in their reply 19 O.A.No.170/317/2022/CAT/BANGALORE statements, but how the Selection Committee appreciated that overall grading of various ACRs and had their own opinion on his grading of various years is final and cannot be contested before the Court and this Court cannot substitute its opinion for the expert opinion of the Selection Committee which is rightfully constituted and has arrived at its own conclusion based on entire records available before them. Further, in a judgment dated in the case of M.V.Thimmaiah & Ors v. Union of India and Ors in Civil Appeal No.5883-5891 of 2007, it was observed by the Hon'ble Supreme Court that :
"Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory Rules. The Courts cannot sit as an appellate authority to examine the recommendations of the Selection Committee like the Court of appeal. This discretion has been given to the Selection Committee only and Courts rarely sit in court of appeal to examine the selection of the candidates nor is the business of the Court to examine each candidate and record its opinion "
25. Clearly, simple reading of this shows that recommendations of the Selection Committee cannot be challenged except on the ground of malafide or on serious violation of statutory rules. We do not find any malafide either imputed to the Committee or supported in any way and the Committee has gone by the rules and there is no violation of any statutory rules and this Court cannot sit as an appellate authority to examine the 20 O.A.No.170/317/2022/CAT/BANGALORE recommendations of the Selection Committee like a court of appeal. Further, the UPSC has quoted Civil Appeal No. 10854/2014 filed by UPSC v. M.Sathiya Priya & Others, wherein the Apex Court vide its judgment dated 13.4.2018 have observed as under:
" 9. The Regulations as well as the Guidelines are to be applied jointly at the time of making the selection list. In our considered opinion, the Regulations and the Guidelines jointly prescribe adequate procedure and they form a complete code in themselves.
In accordance with the provisions of the Regulations and Guidelines, the Selection Committee, presided over by the Chairman/Member of the UPSC, makes a list for the selection of SPS Officers for promotion to the IPS. As per Regulation 5(1) of the Regulations, the number of members of the SPS to be included in the Select List of a particular recruitment year for promotion to the IPS, is determined by the Government of India (Ministry of Home Affairs) in consultation with the State Government concerned, keeping in mind the number of substantive vacancies as of 1st January of the year the Selection Committee meets. Thereafter, the State Government forwards a proposal to the UPSC along with the Seniority List, an Eligibility List (up to a maximum of three times the number of vacancies) of the SPS Officers, Integrity Certificates, certificates regarding disciplinary/criminal proceedings, certificates regarding communication of adverse remarks, details of penalties imposed on the eligible officers etc. and complete ACR dossiers of the eligible officers.
On receipt of the aforementioned records from the State Government, the UPSC places such records before the Selection Committee when the Selection Committee meets for selection for the recruitment year. In accordance with the provisions of Regulation 5(4) of the Regulations, the Selection Committee classifies the eligible SPS Officers included in the zone of consideration as "Outstanding", "Very Good", "Good"
or "Unfit", as the case may be, on an overall relative assessment of their service records. Thereafter, the Selection Committee prepares a list as per the provisions 21 O.A.No.170/317/2022/CAT/BANGALORE of Regulation 5(5) of the Regulations by including the required number of names first from the officers finally classified as "Outstanding", then from amongst those similarly classified as "Very Good" and thereafter from amongst those similarly classified as "Good". As per the provisions of Regulations 6 and 6A, the State Government and the Central Government are required to furnish their observations on the recommendations of the Selection Committee. After taking into consideration the observations of the State Government and the Central Government and the requisite records received from the State Government or the Central Government, the Commission will take a final decision on the recommendations of the Selection Committee with or without modifications in terms of the provisions of Regulation 7. Appointments to the IPS are made from the select list by the Government of India (Ministry of Home Affairs). From the aforementioned, it is clear that complete procedure is prescribed for selection and appointment to the IPS cadre from the SPS.
10. As mentioned supra, it is the contention of the first respondent that the Selection Committee ought to have graded her as "Outstanding" or at least "Very Good", on an overall relative assessment of her service records, and consequently she would have been selected for the year 2008. It is her further contention that on a comparative assessment of her service records with those of the private respondents, who were junior to her, she could not have been excluded from the selection list as her service records are better than those of almost all of them. Thus, according to her, the Selection Committee has acted expressly in an arbitrary manner in the said process of selection by superseding the first respondent.
11. The CAT and the High Court have virtually assessed the performance of the first respondent afresh, mainly taking into account the service records for the period from 1.4.2003 to 31.03.2008, and have directed the official respondents to appoint her to the IPS by notionally treating such appointment with effect from the date of notification, i.e., with effect from 5.5.2009 by giving her appropriate place of seniority amongst the private respondents.
12. In our considered opinion, the error that crept into the findings of the Tribunal, as confirmed by the High Court, was on account of the basic fact that they 22 O.A.No.170/317/2022/CAT/BANGALORE erred in not properly appreciating the span/scope of selection by a Selection Committee. For the purpose of consideration of a candidate for selection to the IPS in respect of the select list of 2008, the Annual Confidential Reports from 1.4.2003 to 31.03.2008 could not have been taken into account by the Selection Committee, as observed by the CAT and the High Court. As per para 3.1 of the Guidelines, the assessment of the eligible officers is with special reference to the performance of the officer during the last five years, preceding the year for which the select list is prepared. As the crucial date for determining the eligibility of the officers is taken 1st January of a particular year for which the selections are being made, the Annual Confidential Reports upto the year ending 31st March of the year preceding the year of selection list are to be taken into account as per para 3.2 of the Guidelines. In the matter on hand, the selection list was to be prepared for the year 2008. Thus, the crucial date for reckoning the eligibility of the officers in the matter on hand is 1st January, 2008. Accordingly, the Annual Confidential Reports upto the year ending 31st March, 2007 i.e., the year preceding the year of the selection list, are to be taken into account. As mentioned supra, the Selection Committee will consider the performance of the officer i.e., the service records including the last five years, preceding the year for which the selection list is to be prepared as per para 3.1 of the Guidelines. Accordingly, only the Annual Confidential Reports of five years upto the year ending 31st March, 2007 are relevant i.e. Annual Confidential Reports from 01.04.2002 to 31.03.2007 needed to be taken into account at the time of selection. The same was being done by the Selection Committee in the matter on hand. Hence, no fault can be found. It seems that the CAT, as well as the High Court, has misdirected in coming to the wrong conclusion that Annual Confidential Reports from 1.4.2003 to 31.03.2008 ought to have been taken into consideration inasmuch as such conclusion is against the Regulations & the Guidelines.
13. The CAT and the High Court have mainly relied on the grading given in the Annual Confidential Reports of the officers at the State level while coming to their conclusion. But, in terms of the Regulations and the Guidelines framed therein, for categorising the officers, the Selection Committee was required to consider the overall relative assessment of the service records of each of the eligible officers. The Selection Committee is not 23 O.A.No.170/317/2022/CAT/BANGALORE guided merely by the grading recorded in the Annual Confidential Reports but makes its own assessment on the basis of the quality of the officer as indicated in various columns recorded by the Reporting/Reviewing/Accepting Authority thereunder. In other words, the Selection Committee is not required to compulsorily accept the gradings given in the Annual Confidential Reports as it would amount to merely acting as a post office and the whole process would be nothing but a farce. The grading recorded in the Annual Confidential Report of a particular year may differ from the grading arrived at by the Selection Committee in respect of the said Annual Confidential Report depending on all relevant material.
14. Learned counsel for the UPSC, drawing the attention of the Court to the contents of the affidavit filed by the UPSC before the CAT, submits that the Selection Committee also reviews and determines the overall grading recorded in the Annual Confidential Reports to ensure that the overall grading in the Annual Confidential Reports is not inconsistent with the grading/remarks under various specific parameters or attributes. It is brought to the notice of the Court that the Selection Committee takes into account orders regarding appreciation for meritorious work done by the officers concerned and also keeps in view orders awarding penalties or any adverse remarks duly communicated to the officers, which even after due consideration of their representation by the suitable forum, are not expunged. The aforementioned norms are uniformly applied to all the States/Cadres in the matter of induction into the All India Services.
15. The Selection Committee consists of experts in the field. It is presided over by the Chairman or a Member of the UPSC and is duly represented by the officers of the Central Government and the State Government who have expertise in the matter. In our considered opinion, when a High Level Committee or an expert body has considered the merit of each of the candidates, assessed the grading and considered their cases for promotion, it is not open to the CAT and the High Court to sit over the assessment made by the Selection Committee as an appellate authority. The question as to how the categories are assessed in light of the relevant records and as to what norms apply in making the assessment, is exclusively to be determined by the Selection Committee. 24
O.A.No.170/317/2022/CAT/BANGALORE Since the jurisdiction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the Courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. It is not the function of the Court to hear the matters before it treating them as appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body, i.e., the Selection Committee. The Courts have very limited scope of judicial review in such matters. We are conscious of the fact that the expert body's opinion may not deserve acceptance in all circumstances and hence it may not be proper to say that the expert body's opinion is not subject to judicial review in all circumstances. In our constitutional scheme, the decision of the Selection Committee/Board of Appointment cannot be said to be final and absolute. Any other view will have a very dangerous consequence and one must remind oneself of the famous words of Lord Acton "Power tends to corrupt, and absolute power corrupts absolutely". The aforementioned principle has to be kept in mind while deciding such cases. However, in the matter on hand, it is abundantly clear from the affidavit filed by the UPSC that the Selection Committee which is nothing but an expert body had carefully examined and scrutinised the experience, Annual Confidential Reports and other relevant factors which were required to be considered before selecting the eligible candidates for the IPS. The Selection Committee had in fact scrutinised the merits and demerits of each candidate taking into consideration the various factors as required, and its recommendations were sent to the UPSC. It is the settled legal position that the Courts have to show deference and consideration to the recommendations of an Expert Committee consisting of members with expertise in the field, if malice or arbitrariness in the Committee's decision is not forthcoming. The doctrine of fairness, evolved in administrative law, was not supposed to convert tribunals and courts into appellate authorities over the decision of experts. The constraints - selfimposed, undoubtedly - of writ jurisdiction still remain. Ignoring them would lead to confusion and uncertainty. The jurisdiction may become rudderless.
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16. No doubt, the Selection Committee may be guided by the classification adopted by the State Government but, for good reasons, the Selection Committee may evolve its own classification which may be at variance with the grading given in the Annual Confidential Reports. As has been held by this Court in the case of UPSC vs. K. Rajaiah and others (2005) 10 SCC 15, the power to classify as "Outstanding", "Very Good", "Good" and "Unfit" is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State authorities in the Annual Confidential Reports is not binding on the Selection Committee. Such classification is within the prerogative of the Selection Committee and no reasons need be recorded, though it is desirable that in a case of grading at variance with that of the State Government, reasons be recorded. But having regard to the nature of the function and the power confined to the Selection Committee under Regulation 5(4), it is not a legal requirement that reasons should be recorded for classifying an officer at variance with the State Government's decision. It is relevant to note that no allegations of malice or bias are made by the first respondent at any stage of the proceedings against the Selection Committee or the UPSC. This Court has repeatedly observed and concluded that the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an appellate authority or an umpire to examine the recommendations of the Selection Committee like a Court of Appeal. This discretion has been given to the Selection Committee only, and the courts rarely sits as a Court of Appeal to examine the selection of a candidate; nor is it the business of the Court to examine each candidate and record its opinion. Since the Selection Committee constituted by the UPSC is manned by experts in the field, we have to trust their assessment unless it is actuated with malice or bristles with mala fides or arbitrariness. "
Simple reading of this order also shows that we have limited jurisdiction to examine any recommendation made by the Selection Committee and we can only interfere based on any malafide or on 26 O.A.No.170/317/2022/CAT/BANGALORE serious violation of statutory rules. In the present case, we do not find any such substance. These citations have not been controverted by the applicant or we have not been shown any contrary citation in favour of the applicant. So we are swayed by these citations. In the facts and circumstances of the present case, we do not find any such anomaly on record also. Considering all these, we do not find any ground in this case to interfere with the impugned orders and, we pass the following orders:
The Original Application is dismissed. Associated Miscellaneous Applications, if any pending, are also closed accordingly. No costs.
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/SV/