Orissa High Court
Rabi Ranjan Malick vs State Of Orissa And Ors. [Alongwith Wp ... on 21 February, 2006
Equivalent citations: 2006(I)OLR463
Author: I.M. Quddusi
Bench: I.M. Quddusi, N. Prusty
JUDGMENT I.M. Quddusi, J.
1. All these writ petitions having involved common questions of fact and points of law were analogously heard and are being disposed of by this judgment.
2. The judgment and order dated 22.11.2002 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.As. Nos. 83/2001 & 286/2001 filed by the applicants, namely, Benudhar Das, Rajkishore Chaudhury and Mrutyunjay Tripathy is assailed in these writ petitions. The last two writ petitions i.e. W.P.(C) Nos. 6780 & 6781 of 2003 have been filed by the State and rest four writ petitions i.e. W.P.(C) Nos. 571,713,1623 & 2090 of 2003 have been filed by the persons aggrieved by the impugned order of the Tribunal. The Tribunal while allowing the O.As. directed the State of Orissa to issue revised orders antedating the applicants' promotion to O.A.S. supertime posts rank to the date when respondents 3 to 10 (before the Tribunal) were promoted and to maintain their inter se seniority according to the placements assigned to them in the select list prepared by the Selection Board. However, it has been directed by the Tribunal that the applicants before it would not be entitled to any differential pay in the scale attached to the supertime posts rank for the intervening period. The dispute related to promotion to supertime posts of the members of the Orissa Administrative Service, recommended by the Selection Board to the Orissa Public Service Commission, which was modified by the latter while sending its recommendation to the State Government. The said recommendation of the Public Service Commission was accepted by the State Government.
3. At the very outset, it is necessary to peruse the provisions of the relevant Rules, namely, Orissa Administrative Service (Supertime Scale) Recruitment and Conditions of Service Rules, 1995 (in short, "1995 Rules") and the Orissa Civil Services (Criteria for Promotion) Rules, 1992 (in short, "1992 Rules").
The provisions of Rules 4 to 9 of the Orissa Administrative Service (Supertime Scale) Recruitment and Conditions of Service Rules, 1995, which are relevant for our purpose are quoted as under :-
xxx xxx xxx
4.(1) There shall be constituted a Selection Board for selection of Officers for appointment to the Orissa Administrative Service (Supertime Scale).
(2) The Selection Board shall consist of the following Officials, namely:-
(a) Chief Secretary to Government .... Chairman
(b) Additional Chief Secretary to Govt. .... Member
(c) Member of Board of Revenue .... Member
(d) Special Secretary to Government. .... Member
General Administration Dept. Secretary
(3) Notwithstanding Sub-rule (2) the recommendation of the Selection Board shall be valid and can be acted upon notwithstanding the absence of any one of its members other than the Chairman, provided that the member so absenting was duly invited to attend the meeting and the majority of the members constituting the Selection Board attended the meeting.
5(1) The Selection Board shall ordinarily meet before the 31st January of each year and prepare a list of such members of Orissa Administrative Service, Class-I (Senior Branch) who are considered by them to be suitable for appointment to the Service. The number of officers of the Orissa Administrative Service, Class-I (Senior Branch) to be included in the list shall not be more than twice the number of vacancies including those anticipated in that year.
(2) The Selection Board for preparation of the list shall follow the provisions of the Orissa Civil Services (Zone of Consideration for Promotion) Rules, 1988, and the Orissa Civil Services (Criteria for Promotion) Rules, 1992.
(3) The Selection Board shall consider the cases of those officers who on the first day of January of the year in which it meets, have completed 15 years of service in the cadre of Orissa Administrative Service, Class-II, Orissa Administrative Service, Class-I (Junior Branch): and Orissa Administrative Service, Class-I (Senior Branch) taken together.
6. The list prepared by the Selection Board under Rule 5 shall be forwarded to the Commission for concurrence together with the following document, namely :-
(a) The records of all the members of the Orissa Administrative Service, Class-I (Senior Branch) who are considered suitable by the Selection Board for inclusion in the list, and
(b) the records of all the members of the Orissa Administrative Service Class-I (Senior Branch) who are proposed to be superseded along with the reasons for such supersession.
7(1) The Commission shall consider the list prepared by the Selection Board along with other documents received from the Government and approve the list along with any change, if considered necessary.
(2) The Commission shall follow the Provisions of the Orissa Civil Services (Criteria for Promotion) Rules, 1992 in making their recommendations.
8. The Recommendations of the Commission made under Rule 7 shall be placed before the Government for approval and after approval by Government with modification, if any, shall form the Select List for appointment to the Service. The Select List shall ordinarily remain in force until a fresh Selection List is prepared;
Provided that the Government may, in consultation with the Commission, for any grave lapse in the conduct or deterioration in the standard of performance of the duties on the part of any member of the Orissa Administrative Service, Class-I (Senior Branch) included in the Select List, remove his name from such list before he is appointed to the Service.
9. Appointment to the Service shall be made by the Government in the order in which the names appear in the Select List.
xxxx xxxx xxxx Sd/- Special Secretary to Government
4. In Sub-rule (2) of Rule 7 of 1995 Rules, it is provided that the Commission shall follow the provisions of 1992 Rules in making their recommendations. The relevant Notification dated 24.7.92 issued by the State Govt. in this regard is quoted as under :
THE ORISSA CIVIL SERVICES (CRITERIA FOR PROMOTION) RULES, 1992 GENERAL ADMINISTRATION DEPARTMENT NOTIFICATION The 24th July, 1992 (Published in the Orissa Gazette on 25.7.1992) No. 29904-2R-1-60/92-Gen. In exercise of the powers conferred by the Provision of Article 309 of the Constitution of India, the Governor of Orissa is pleased to make the following rules to regulate the criteria for promotion to the State Civil Services and Posts, namely :-
1.(1) These rules may be called the Orissa Civil Services (Criteria for Promotion) Rules, 1992.
(2) They shall come into force on the date of their publication in the Orissa Gazette and shall apply to all cases of promotion made to the State Civil Services and posts including the cases pending on the date of such publication.
2. In these rules, unless the context otherwise requires.
(a)"Government" means the Government of Orissa.
(b)"Recruitment Rules" mean the rules framed under the proviso to Article 309 of the Constitution of India regulating promotions to different State Civil Services and posts and include executive orders and instructions issued by the competent authority in this regard from time to time; and
(c) "Select List" means the list approved by the State Government or the appointing authority as the case may be, containing the names of officers considered suitable for promotion.
3. Notwithstanding anything contained in the Recruitment Rules :-
(a) All promotions to the posts or grades of different Services/ Civil posts under the State Government shall be made by selection;
(b) Selection for such promotion shall be made on the basis of merit and suitability in all respects with due regard to seniority and the names of persons included in the Select List shall be arranged in order of seniority in the feeder service or grade :
Provided that any junior officer of exceptional merit and suitability may be assigned a place higher than his seniors and in such cases the assignment of higher position to the junior officer shall be limited to the same batch or year of allotment except where an officer of the earlier batch or year of allotment is found unsuitable for promotion.
Provided further that where promotion is made from different services or posts and no common seniority among such officers exists, their names in the Select List shall be arranged on the basis of their merit adjudged during selection.
[Explanation- The expression "batch of year of allotment" means the calendar year of the select list on the basis of which an officer is promoted to the higher rank] [(c) In order to judge the suitability of an officer for promotion, the Orissa Public Service Commission or the Departmental Promotion Committee, the Selection Committee or the Selection Board, as the case may be, shall scrutinize preceding five years available Confidential Character Rolls and other documents, if any having a bearing on the performance and conduct of all eligible officers unless for reasons to be recorded, it is considered necessary to refer to any earlier record to adjudge an officer's suitability.] Note 1- The expression "other documents" means papers of whatsoever nature having bearing on the performance and conduct of eligible officers like C.B.I, or Vigilance reports, papers relating to departmental action and other confidential reports having nexus with an officer's performances which might have been prepared after giving an opportunity to an officer of being heard and not reflected in his C.C.R's. or service records.
Note II - The expression "preceding five years" means the five years preceding the year in which the Selection Committee, Departmental Promotion Committee or Selection Board as the case may be, sits, but where the said committee sits for more than once such a years shall be reckoned from the date of its first meeting.
4. In order that vacancies are filled up by the most suitable persons with the utmost expedition consistent with an officer's right to seek expunction of an adverse remark, the following procedure shall be followed in cases where the records of an officer under consideration contain an adverse remarks :-
(a) If the officer has represented against an adverse remark and the representation has not been disposed of, the adverse remark shall be taken into consideration at the time of selection.
(b) If the remark has been expunged after consideration of his case by the Departmental Promotion Committee or the Selection Committee or the Selection Board as the case may be the fact shall forthwith be reported to the Public Service Commission and if the officer was refused promotion on ad hoc basis because of the said remark, his entitlement to such promotion shall be considered once again notwithstanding that it may involve the reversion of another officer.
(c) If expunction of the adverse entry is ordered after selection has been made in the recommendation of the Orissa Public Service Commission, his case will be referred once again to the Commission and if the Commission recommends promotion and Government accept the said recommendation, the officer will be promoted from the date of his junior, not being a person of exceptional and suitability, was promoted and shall be entitled to all service benefits which he would have received but for the supersession on account of the adverse remarks.
(d) If, as a result of such retrospective promotion any junior officer has to be reverted, such reversion shall not entitle the said junior officer to claim to continue in the post on the strength of an earlier recommendation of the Orissa Public Service Commission.
5. The provisions of these rules shall have overriding effect notwithstanding anything to the contrary contained in any other Recruitment Rules or any other order or instruction for the time being in force.
6. If any doubt arises on interpretation of any of the provisions of these rules, shall be referred to Government in General Administration Department for final decision.
By order of the Governor RAMAKANTA RATH Chief Secretary to Government.
5. Rules 5(2) and 7(2) of 1995 Rules provide that the Selection Board and the Commission shall follow the provisions of the Orissa Civil Services (Zone of Consideration for Promotion) Rules, 1988, and 1992 Rules.
6. All the Officers concerned in these writ petitions except the officers arrayed as opposite parties in the two writ petitions filed by the State belong to 1994 batch of Officers working in the cadre of Orissa Administrative Service, Class I (Senior Branch) who were considered for promotion to O.A.S. (Supertime Scale). First of all, they were considered by the Selection Board constituted under Rule 4 of 1995 Rules and Rule 3 of 1992 Rules.
Rule 3 of 1992 Rules provides that all promotions to the post or grades of different Services/Civil posts under the State Govt. shall be made by selection and selection for such promotions shall be made on the basis of merit and suitability in all respects with due regard to seniority and the names of persons included in the Select list shall be arranged in order of seniority in the feeder service or grade.
Proviso to Rule 3 states that any junior officer of exceptional merit and suitability may be assigned a place higher than his seniors and in such cases the assignment of higher position to the junior officer shall be limited to the same batch or year of allotment except where an officer of the earlier batch or year of allotment is found unsuitable for promotion.
In Clause (c) of Rule 3, it has been provided that in order to judge the suitability of an officer for promotion, the Orissa Public Service Commission or the Departmental Promotion Committee, the Selection Committee or the Selection Board, as the case may be, shall scrutinize preceding five years available confidential character rolls and other documents, if any, having a bearing on the performance and conduct of all eligible officers unless for reasons to be recorded, it is considered necessary to refer to any earlier record to adjudge an officer's suitability.
7. The Selection Board was constituted to consider the suitability of the officers working in O.A.S. (Senior Branch) cadre for the year 2000. On 29.4.2000 the Selection Board recommended 35 officers as suitable for promotion to O.A.S. (Supertime Scale) from O.A.S. (Senior Branch) cadre altering the inter se seniority against 19 anticipated vacancies for promotion for the year 2000. The positions of 7 offices namely Kishore Chandra Barik, Nalini Kumar Burma, Blswajit Mishra, Bipin Bihari Mohapatra, MrutyunjayaTripathy, Raj Kishore Choudhury and Benudhar Das were assigned above their seniors of the same batch as they were considered to be of exceptional merit and suitability by the Selection Board. But no reasons were assigned as to how the said officers were assessed to be of exceptional merit and suitability. It may be noted here that in Clause (b) of Rule 6 of 1995 Rules, it is provided that the records of all the members of the Orissa Administrative Service, Class-I (Senior Branch) who are proposed to be superseded along with the reasons for such supersession shall be forwarded to the Commission. The Commission had considered the recommendation of the Selection Board but it did not accept the recommendation of the Selection Board in respect of the above named 7 officers, who were assigned higher places above their seniors and recommended the names in order of seniority, meaning thereby that their names were arranged in order of seniority of the officers found suitable who were 35 in number. The Commission had given its reasons for doing so.
8. The minutes of meeting of the Selection Board held on 24.4.2000 is quoted hereunder:
Minutes of the meeting of the Selection Board held on 24.4.2000 at 6.00 p.m. in the Office Chamber of the Chief Secretary for considering the cases of eligible O.A.S.I (Sr. Branch) Officers for promotion to the Orissa Administrative Service (Supertime Scale) for the year, 2000.
Members Present-
1. Sri Sudhanshu Mohan Patnaik, Chief Secretary, Orissa. .... Chairman
2. Sri Sudhansu Bhusan Mishra, IAS, Member, Board of Revenue .... Member
3. Sri Prasanna Kumar Mishra, IAS, Additional Chief Secretary .... Member
4. Dr. Satish Balaram Agnihotri, IAS, Special Secretary to Government, .... Member General Administration Department Secretary The Memorandum dated 29.4.2000 circulated by the General Administration Department was perused. 19 (Nineteen) vacancies are anticipated by the end of December, 2000. The Selection Board perused the CCRs preceding five years according to availability and other service records of 57 Officers of Orissa Administrative Service Class-I (Senior Branch) coming within the zone of consideration as shown in the Annexure-I of the above Memorandum. The Selection Board recommended that the following 35 Officers are suitable for promotion to the Orissa Administrative Service (Supertime Scale). The Board placed them in the order in which their names appear below :-
Sl. No. Name of the Officers Batch
_______ ____________________ _____
S/Sri
1. Kishore Chandra Barik 1994
2. Nalini Kumar Burma "
3. Biswajit Mishra "
4. Bipin Bihari Mohapatra "
5. Mrutunjay Tripathy "
6. Raj Kishore Choudhury "
7. Benudhar Das "
8. Ambika Prasad Mishra "
9. Rabinarayan Rout "
10. Girish Chandra Mohanty "
11. Rajani Kanta Dey "
12. Anirudha Rout "
13. Krishna Chandra Mishra, No. 1 "
14. B. Kumar Das, No. 1 "
15. Laxmi Kanta Mohapatra "
16. Pratap Chandra Jena "
17. Rabi Ranjan Mallick "
18. Rabindra Nath Das, No. 3 "
19. Bipin Bihari Naik "
20. Kallol Kumar Das "
21. Gati Krushna Tripathy "
22. Bramhananda Mohanty "
23. Alekh Chandra Padhiary "
24. Siba Prasad Mishra, No. 2 "
25. Gyana Ranjan Das "
26. Gangadhar Singh "
27. Narayan Chandra Jena "
28. Biswar Kumar Nayak "
29. Hrushikesh Tripathy "
30. Bhawani Sankar Panda "
31. Gadadhar Parida "
32. Purnendu Kumar Nanda "
33. Krishna Gopal Mohapatra "
34. Laxman Patra "
35. Narayan Samantaray "
Officers at Serial No. 1 to 7 above are considered to be of exceptional merit and suitability and are assigned higher place above their seniors of the same batch.
The Selection board considered Sri Baikunthanath Sahu and Sri Braja Kishore Panda (SI. No. 1 and 39 of the eligibility list) unsuitable for promotion) The Selection Board decided to keep its recommendation in respect of the following Officers in sealed cover as major penalty proceedings under Rule 15 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962/Criminal cases are pending against them.
Sl. No. Name of the Officer Batch
_______ ___________________ _____
S/Sri
1. Kartikeswar Mohanty 1994
2. Sashibhusan Parida "
3. Bichitrananda Das, No. 2 "
Sd/- Sd/-
(S.B. Mishra) (S.M. Patnaik)
Member, Board of Revenue Chief Secretary
Sd/- Sd/-
Special Secretary Addl. Chief Secretary
to Government., G.A.D.
9. In this regard the letter of the Addl. Secretary of the Commission addressed to the Special Secretary to Govt. of Orissa in G.A. Dept. dated 31.10.2000 recommending the names of the officers for promotion to the rank of supertime scale of O.A.S. with the observations made by the Commission reads as follows :
ORISSA PUBLIC SERVICE COMMISSION 19, Dr. P.K. Parija Road, Cuttack-753001 No. 6509 Dated, the 31.10.2000 From Shri R.C. Panda, Addl. Secretary.
To The Special Secretary to Govt. of Orissa, General Administration Deptt.
Bhubaneswar.
Subject Promotion to the rank of Supertime Scale of O.A.S. for the year, 2000.
Preference: G.A. Deptt. letter No. 29852 (e)/Gen., dated 25.7.2005/ 5.8.2000 No. 34327 (e)/Gen. Dtd. 20.9.2000 & No. 37221 (e)/Gen. Sir, I am directed to state that the Commission have already recommended the following 12 (twelve) officers for promotion to the rank of Supertime Scale of O.A.S.:
1. Sri Sashibhusan Parida
2. Sri Ambika Prasad Mishra
3. Sri Rabinarayan Rout
4. Sri Girish Chandra Mohanty
5. Sri Kishore Chandra Barik
6. Sri Rajanikanta Dey
7. Sri Anirudha Rout 8. Sri Krishna Chandra Mishra, No. 1 9. Sri Bijay Kumar Das, No. 1
10. Sri Nalini Kumar Burma
11. Sri Laxmikanta Mohapatra
12. Sri Pratap Chandra Jena
2. Besides the above, the Commission recommend the following 25 (twenty five) officers for promotion to the rank of Supertime Scale of O.A.S.:
1. Sri Biswajit Mishra
2. Sri Rabiranjan Mallick
3. Sri Rabindranath Das, No.III
4. Sri Bipin Behari Mohapatra
5. Sri Bipin Behari Nayak
6. Sri Kallol Kumar Das
7. Sri Gatikrushna Tripathy
8. Sri Brahmananda Tripathy
9. Sri Alekh Chandra Padhiary
10. Sri SibaPrasad Mishra. No.II
11. Sri Gyanaranjan Das
12. Sri Gangadhar Singh
13. Sri Narayan Chandra Jena
14. Sri Biswar Kumar Nayak
15. Sri Hrusikesn Tripathy
16. Sri Bichitrananda Das, No.II
17. Sri Bhabani Sankar Panda
18. Sri Gadadhar Parida
19. Sri Mrutyunjaya Tripathy
20. Sri Purnendu Kumar Nanda
21. Sri Krishna Gopal Mohapatra
22. Sri Rajkishore Choudhury
23. Sri Laxman Patra
24. Sri Narayan Samantaray
25. Sri Benudhar Das
3. The officers recommended earlier and that of now shall maintain their grade seniority.
4. The following officers are found unsuitable by the Commission for this promotion owing to indifferent C.C. Rs.
1. Sri Baikunthanath Sahoo
2. Sri Braja Kishore Panda
5. The case of Sri Kartikeswar Mohanty could not be considered because of inadequate C.C. Rs. for the years 1994-95 to 1998-99.
6. In the context of the above recommendation the Commission have observed as follows :
It is difficult to say that an officer who has been rated 'Outstanding' for 4 V2 years and 'Very Good" for half a year is in any way less meritorious than an officer who has been rated "outstanding' for five years. Again it is seen that in some cases due consideration has not been given to the remarks of the Reporting officers because of the remarks of the Counter-signing Officer though the counter-signing officer has not given any reasons for disagreeing with the Reporting Officers. It is expected that if the Counter-signing Officer disagrees with the remarks of the Reporting Officers, he should give reasons for doing so. However, counter-signing Officers have sometimes given a different grading without giving the reasons. In some cases, it is also seen that the officer has been graded 'Outstanding" on perusal of the C.C.Rs. grading so assigned does not appear to be justified. Considering all these aspects the Commission do not agree with the observation of the Selection Board that some officers are of exceptional merit and should be of the considered view that all these officers as mentioned above are suitable for promotion to the higher rank.
The C.C. Rs. of 40 (forty) officers received in connection with the reference are returned herewith.
Yours faithfully, (R.C. Panda) Addl. Secretary
10. The Government accepted the recommendations and accordingly issued orders for promotion of the Officers against existing vacancies in supertime rank. Since Benudhar Das was one of the seven officers who were assigned higher places than their seniors by Selection Board in its recommendation to the Commission, the Commission having not accepted the same, he filed O.A.No. 83/2001 before the Administrative Tribunal, Bhubaneswar with the following prayer:
7. Relief(s) sought for In view of the above facts made in para-1 to 6 the applicant prays for the following relief(s) :-
Your Lordships may be pleased to :-
(i) Quash the Recommendation of Orissa Public Service Commission vide letter No. 6509 dated 31.10.2000 and consequently to quash the order of promotion made under Annexure-8 and Annexure-9 out of recommendation made in the recommendation letter dt. 31.10.2000 by O.P.S.C. and also no further promotion of officers to the post of Supertime Scale of O.P.S. in pursuance of recommendation dated 31.10.2000 who are below the select list made by the Selection Board in pursuance of the Rule 3(b) proviso and (c) of Orissa Civil Service (Criteria for Promotion) Rule, 1992 Amended in 1997 read with Rule 5 and 7(2) of the Orissa Administrative Officer Supertime Scale (Recruitment and Condition of Services) Rules, 1995:
(ii) Direct the Respondents to consider the case of the applicant for promotion to the post of Supertime Scale of O.A.S. from the date the O.Ps. to 3 to 10 are promoted with all service and financial benefits :
(iii) Pass such other orders as deemed fit and proper in favour of the applicant.
11. The other writ petitioners, namely, Rajkishore Choudhury and Mrutyunjaya Tripathy filed O.A. No. 286/2001 and sought similar reliefs as made by Benudhar Das. The Tribunal summoned the C.C.Rs. of these 3 persons for the relevant periods, i.e. 1994-95 to 1998-99, and found that Benudhar Das the applicant in O.A. No. 83/2001 had worked in different posts with three levels of assessment and that the Reporting Officer and the Counter-signing Officer had both rated him as 'outstanding' for one year and for a part period of another year and there were no remarks of the accepting authority for these two years. Further for a part period of that year, a part of another year and other two years the Reporting Officer, the Countersigning Officer and the Accepting Officer were all unanimous in rating him as 'outstanding'. Only for a part period of one year the Reporting Officer, and the Countersigning Officer rated him as "very good" and the Accepting Officer rated him as 'outstanding'. But the reasoning given by the Commission that it was difficult to say that an Officer who had been rated 'outstanding' for 4V2 years and 'very good' for half year, was in any way less meritorious was to apply in his case, especially when the accepting authority had rated him as 'outstanding'. The applicant in O.A. No. 286/2001 namely Rajkishore Choudhury had worked in posts with only two levels of assessment and for all these years, both the Reporting Officer and the Countersigning Officer were unanimous in rating him as 'outstanding'. The other applicant No. 2 in O.A. No. 286/2001, namely, Mrutyunjay Tripathy, who had worked in the post with only one level of assessment, had been rated 'outstanding' for all these years only.
Substituting its own finding, the Tribunal rejected the recommendation of the Commission commenting on the reasons given by the Commission for not accepting the recommendation of the Selection Board in respect of seven persons who were assigned higher position than their seniors to the effect that none of the general reasons given by the Commission for differing with the placement in the select list prepared by the Selection Board was to be applied in the case of three applicants and that the Tribunal observed that this was a rare case where interference of the Tribunal was called for. It is necessary to observe here that the Tribunal has not compared the CCRs of the persons senior to these three persons with the CCRs of these persons. The Tribunal has also not paid attention to the provisions of Rule 6 of 1995 Rules, wherein it has been provided that the Selection Board shall forward the list prepared by it to the Commission with records of all the members of O.A.S. Class-I (Senior Branch) who were proposed to be superseded along with the reasons for such supersession and also that no reason was assigned by the Selection Board while recommending to the Commission as to why the seven officers were treated as exceptional in merit and suitability and had been assigned higher position than their seniors of the same batch.
12. Learned Advocate General submitted that the impugned judgment of the Tribunal suffers from non-joinder of parties. In the O.As. several persons who have been adversely affected by the judgment of the Tribunal were not impleaded as parties. However, the recommendation, made by the Commission was accepted by the State Government and the same was not challenged and thus, the recommendation made by the Public Service Commission is beyond the scope of jurisdiction of the Tribunal and the Tribunal has exceeded its jurisdiction in substituting its own assessment rejecting the recommendations of the Commission. The Tribunal has observed that the three applicants, namely, Mr. Rajkishore Choudhury, Mr. Mrutyunjaya Tripathy and Mr. Benudhar Das, before the Tribunal, placed at SI. Nos. 49, 52, 53 respectively in the list of officers were within the zone of consideration but keeping these three persons above all other selected persons amounted to supersession of persons, who were seniors to them merely on the ground that the said three applicants on comparison with other officers were found slightly more meritorious than them although they could not be treated as exceptionally meritorious. When the criteria was on the basis of merit with due regard to seniority, the names of the senior persons were to be placed in the list which would have been in fact the select list. He has further submitted that the Selection Board had not assigned any reason for keeping the seven officers above their seniors but the Commission had made its recommendation to the Govt. giving the reason for not accepting the recommendation of the Selection Board in respect of seven officers who were placed above their seniors. He placed reliance on the decision of the apex Court in the case of Union of India v. S.B. Vohra, wherein referring to an earlier decision (Sterling Compute Limited v. M and N Publications Limited and Ors. , it has been held that it is true that by way of judicial review the Court is not expected to act as a Court of appeal while examining an administrative decision and to record a finding whether such decision could have been taken otherwise in the facts and circumstances of the case. Further the Supreme Court had referred in the above decision, the case of Chief Constable of North Wales Police v. Evans, reported in (1982) 3 All ER 141, and held that the purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority after affording fair treatment, reaches on a matter which it is authorized or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court. He has further placed reliance on a decision of the Apex Court in the case of S.I. Rooplal and Anr. v. Governor through Chief Secretary Delhi and Ors., . The Apex Court in Para 25 of the judgment of the aforesaid decision observed as follows :
Before concluding, we are constrained to observe that the role played by the respondents in this litigation is far from satisfactory. In our opinion, after laying down appropriate rules governing the service conditions of its employees, a State should only play the role of an impartial employer in the inter se dispute between its employees. If any such dispute arises, the State should apply the rules laid down by it fairly. Still if the matter is dragged to a judicial forum, the State should confine its role to that of an amicus curiae by assisting the judicial forum to arrive at a correct decision. Once a decision is rendered by a judicial forum, thereafter the State should not further involve itself in litigation. The matter thereafter should be left to the parties concerned to agitate further, if they so desire. When a State, after the judicial forum delivers a judgment, filed review petition, appeal etc, it gives an impression that it is espousing the cause of a particular group of employees against other group of its own employees, unless of course there are compelling reasons to resort to such further proceedings. In the instant case, we feel the respondent has taken more than necessary interest, which is uncalled for. This act of the State has only resulted in waste of time and money of all concerned.
Further in the case of Union of India v. M.L. Kapoor , the Apex Court has held as follows :
In the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections conferred upon them by Article 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have staged reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in making selections. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials of which certain conclusions are based on the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We think that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to. We, therefore, think that the mandatory provisions of Regulation 5(5) were not complied with. We think that reliance was rightly placed by respondents on two decisions of this Court relating to the effect of non-compliance with such mandatory provisions.
xxx xxx xxx As I said, Regulation 5(1) makes it obligatory that the Committee shall prepare a list of such members who satisfy the condition laid down in Regulation 4 and as are suitable for promotion. Now, who are the members who satisfy the condition laid down in Regulation 4? All substantive members of the State Civil/Police' Service who had completed not less than eight years' continuous service. And, who are the members who are suitable for promotion? Those members who were selected on the basis of their merit and suitability with due regard to seniority under the Regulation 5(2). No doubt, number of members included in the list shall not be more than twice the number of substantive vacancies expected to arise in the course of a period of twelve months from the date of the preparation of the list. The list so prepared has to be sent to the Union Public Service Commission under Regulation 7(2) by the State Government along with the records of the Members of the State Civil/Police Service who are proposed to be superseded by the recommendation made in the list and the reasons as recorded by the Committee for the proposed supersession by any member of the State Civil/Police Service and the observation of the State Government on the recommendation of the Committee. Regulation 7 provides that the Commission shall consider the list prepared by the Committee along with the other documents received from the State Government and unless it considers any change necessary, approve the list. And, if the Commission considers it necessary to make any changes in the list received from the State Government, the Commission shall inform the State Government of the changes proposed and after taking into account the comments, if any, of the State Government, may approve the list finally with such modification, if any, as may in its opinion, be just and proper.
The list as finally approved by the Commission shall form the select list of the Members of the State Civil/Police Service.
13. The principle laid down in the case of Union of India v. M.L. Capoor (supra) has been followed in the case of K.P. Bhowmick v. Union of India reported in 1986 (I) OLR-80 the Division Bench of this Court has observed as under :-
xxxx xxxx xxxx it was obligatory on the Selection Committee under Regulation 5(5) of the I.P.S. (Appointment by Promotion) Regulation, 1955 to record reasons for non-inclusion of the name of the petitioner, i.e. for his supersession.
Admittedly, no reason has been assigned. The petitioner has alleged that had his name been included in 1967, it would have continued in 1963 and he would have a fair chance for appointment to the I.P.S. cadre. The State Government have admitted that it implemented the decision of the High Court quashing its decision adjudging Mr. Patnaik senior to the petitioner in April, 1969. Could it not be said that until the notification was issued by the State Government, the vice of Annexure-2 influenced the decision. Taking an overall view of the matter, we are of the view that the selection process both in the years 1967 and the 1968 so far as the petitioner as concerned, was vitiated and the petitioner is entitled to reconsideration. In our view the principles, which ought to have guided the members of the Selection Committee as enunciated in the case of Union of India v. M.L. Capoor were not followed by the Selection Committee. On the material it is difficult to comprehend the non-inclusion of the petitioner.
He has further submitted that it cannot be said that non-acceptance of Selection Board recommendation by OPSC was without reason. Rather recommendation regarding supersession of the 7 officers by the Selection Board is without assigning any reason, while under the rule it was mandatory for the Selection Board to give reason for supersession.
14. Mr. Sanjit Mohanty, learned Counsel for the petitioner in W.P.(C) No. 1623/2003 relying upon the arguments of learned Advocate General further submitted that gradation list was not challenged before the Tribunal by the applicants before it. Petitioner, Alekh Chandra Padhiary was also not made a party. In fact all the persons in the gradation list affected adversely were necessary parties, but the Tribunal had sent for records in respect of the applicants before it who were three in number, and did not peruse the records of other persons who were likely to be affected adversely and no comparison was made by the Tribunal between the records of the applicants before it and that of the other persons likely to be affected adversely. He further submitted that the Tribunal delivered the judgment on 22.11.2002.
But this event was not brought to the notice of the Tribunal. He placed reliance on the case law laid down by the Apex Court (D.K. Yadav v. J.M.A. Industries Ltd., in which it has been held that no decision can be taken which will affect the right of any person without his/her first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made in consistent with the rules of natural justice.
He has further submitted that the Tribunal should not have acted as an appellate authority as it has reassessed the merit of the applicants only. Tribunal cannot sit in appeal and direct promotion by interfering and reversing the findings of a specialized body, like OPSC. He has further submitted that the word "exceptional" used in the Orissa Civil Services (Criteria for Promotion) Rules, 1992 means, according to Chambers dictionary, "unusual". According to the Webster Dictionary it means "Exceptional conduct". If the tribunal could have compared the merit of the applicants before it vis-a-vis the other candidates who were within the zone of consideration it would not have found anything unusual in the service record of the applicants before it.
15. Mr. J. Patnaik, learned Senior Advocate along with Shri D.K. Patnaik appearing for the petitioner in W.P.(C) No. 2090 of 2003, relying upon the argument of the learned Counsel for the petitioners in other writ petitions further submitted that the Tribunal adopted a negative approach. He has placed reliance in the case of Mrs. Anil Katiyar v. Union of India in which the Hon'ble apex Court has held that the Tribunal has rightly proceeded on the basis that it is not expected to play the role of an appellate authority or an umpire in the acts and proceedings of the DPC and that it could not sit in judgment over the selection made by the DPC unless the selection is assailed as being vitiated by mala fides or on the ground of it I: sing arbitrary. It was further laid down by the apex Court that the observations of the Tribunal that out of the two outstanding gradings given to the appellant one outstanding grading does not flow from various parameters given and the reports entered therein, cannot, be upheld.
16. M/s S.C. Mishra, A.K. Rath and Y. Mohanty, learned Counsel appearing for the petitioner in W.P.(C) No. 571 of 2003 and other learned Counsel have relied the argument of Mr. A.K. Mishra and Mr. Manoj Mishra appearing for opp. party No. 5 in W.P. (C) No. 1623/2003. They emphasized on the recommendation of the Selection Board and submitted that the Selection Board had assigned seven officers including opp. parties Nos. 1 and 2 positions higher than the other officers of the same batch, i.e. 1994 batch. Such recommendation was sent to OPSC. The OPSC did not accept the recommendation of the Selection Board with vague observation that Officer rated "outstanding" for 4 and 1/2 years and "very good" for 1/2 year was in any way not less meritorious than the officers who had been rated "outstanding" for five years. The OPSC also observed regarding the role of countersigning officer and that grading of CCRs as "outstanding" in case of some officers. Accordingly, making recommendation of another set of names of the officers in order of seniority vide letter dated 31.10.2000 was not justified. The Govt. simply accepted the said recommendation of the OPSC and accordingly issued G.O./Notification dtd. 15.1.2001 giving promotion of Officers as per the recommendation of the OPSC. Therefore, Opp. Party Nos. 1 and 2 and one Benudhar Das filed O.A. Nos. 286/2001 and 83/2001 respectively before the Orissa Administrative Tribunal challenging the said G.O./notification and subsequent G.O./Notification dt. 2.2.2001 and promotion of Officers basing on such G.Os/notifications.
They have further submitted that the Tribunal after prolonged hearing felt that the observation of the OPSC was general in nature and ought not to be accepted in case of individual Officers and hence called for the CCRs of Opp. Party Nos. 1, 2 and of Benudhar Dash in particular. On perusal of CCRs of Opp. Party Nos. 1. 2 and Benudhar Dash the Tribunal found that all of them had been rated "outstanding" during the five years preceding the date of selection and had worked in different capacities and, accordingly, it held that the observation of the OPSC was general in nature and Opp. Party Nos. 1, 2 and Benudhar Dash were to get higher positions as per the recommendation of the Selection Board. The Tribunal accordingly allowed the O.As. and directed the G.A. Department of the State to issue revised orders antedating their promotion to OAS (Supertime Scale) to the date when the first batch of Officers, i.e. Respondent No. 3 to 10 were promoted.
It was emphasized by Shri Dash that the initial appointment in O.A.S., Class-II had nothing to do with appointment in Senior Class-I Cadre. The Petitioner as well as Opp. Parties all were promoted to O.A.S., Senior Class-I, as per the select list of the year 1994 and admittedly they belong to 1994 batch in the same cadre. In the impugned judgment, the Tribunal has clearly mentioned in Para-6 that it carefully considered the averments in the applications, replies filed by the Respondents and rejoinders as well as the decisions cited by them. Therefore, it cannot be said that petitioner (R.N. Das) was not heard by the Tribunal.
It is further submitted that the DPC was convened for nineteen vacancies. Cases of fifty-seven officers were considered and the 7 officers including Opp. Party Nos. 1 and 2 and Benudhar Das were found as exceptionally meritorious and eligible to be in the top, in terms of Rule 3(b) of 1992 Rules. The Orissa Civil Service (Criteria for Promotion) Amendment Rules, 1997 (in short," 1997 Rules") came into force on 19.12.97. Rule 3(c) of the said Rules says that in order to judge the suitability of an officer for promotion, the OPSC, the Departmental Promotion Committee or the Selection Board shall scrutinize the preceding five years available CCRs and other documents, if any, having a bearing on the performance and conduct of all eligible officers. From the said Rules it is crystal clear that the Selection Board shall scrutinize the preceding five years' available CCRs and other documents on the date the DPC or Selection Board sits. The Circular dated 27.3.91 which the learned Counsel for petitioner was referring is said to have already been superseded by 1992 Rules, and the Amended Rules of 1997 Rules. In other words, after Rule 3(c) was amended, this circular lost its existence since law is well settled that a circular cannot override a statute. Statutory Rules are framed under Article 309 of the Constitution of India and the Statutory Rules in the instant case were to override the Circular issued on 27.3.91. Moreover, the said circular had been superseded by statutory rules and was not applicable to the present case. As such the argument advanced by the learned Counsel for the petitioner that entire service record which was to be considered by the Selection Board was not there in the 1992 Rules and the Amendment Rules dated 19.12.1997. Therefore, to see the entire service record was to rewrite the 1992 Rules which was not permissible under the law.
They contended that the petitioners in W.P.(C) Nos. 571, 713, 1623 and 2090 of 2003 were not at all necessary parties since the selection of 19 officers against vacancies of the year 2000 by the Selection Board, by the OPSC and by the Government was confined to 2000 select list only. The petitioners in this case belong to 2001 select list. So, only the officers who were promoted against the 2000 vacancies were the necessary parties and accordingly they had been impfeaded.
It was submitted that OPSC was to be guided as per the statutory rules framed under Article 309 of the Constitution of India and Article 309 overrides the provisions of Article 320 of the Constitution of India. If the Selection Board stated that the Opp. Parties were exceptionally meritorious then, how the O.P.S.C. could discard the recommendations of the said Selection Board? This was against the parameters of the statutory Rules.
It was further contended that if the rules provided merit cum suitability as the criteria for selection to promotion posts, the OPSC could not have recommended for promotion on the basis of seniority-cum-merit. The OPSC had no power to rewrite the rules and once the selection was made on the basis of merit-cum-suitability, question of supersession did not arise. It was only a question of giving higher positions on account of exceptional merit. Therefore, Rule 6(b) which had been referred to by the Opp. Parties was applicable in case of supersession, but not in case of promotion on the basis of merit-cum-suitability. As such Rule 6(b) was not applicable in the case of promotion of the Opp. Parties because they were assigned higher positions than the petitioners in terms of Rule 3(b) of 1992 Rules, and the amended Rules.
It was also submitted that whether the DPC had given any reason or not, was also a question before the Tribunal, and in the case (State of U.P. v. Ram Swarup Saroj) the Apex Court has held that if a plea has not been taken before the Court below then such plea cannot be entertained before the higher forum. According to him the OPSC's observation is divided into 3 parts.
1. It is difficult to say that an Officer who has been rated outstanding for 4V2 years and very good for half year is in any way less meritorious than an Officer who has been rated outstanding for 5 years.
2. In some cases due consideration has not been given to the remarks of the reporting officer though the countersigning officer has not given any reason for disagreeing with the reporting officer. The countersigning officer sometimes has given a different grading without assigning any reason.
3. In some cases it was seen that some Officers were rated "outstanding". On perusal of the CCRs, such rating did not appear to be justified.
With regard to the first observation, it has been submitted by the learned Counsel that the OPSC had given general remarks and had not stated as to which Officer was having "outstanding" CCR rating for 4VZ years. It had not made relative assessment of all the Officers which was required to be done as per the Rules. Therefore, such general observation was not in conformity with the Rules. The Tribunal rightly asked for the CCRs of the present Opp. Parties as general observation of the OPSC was not applicable to the present Opp. Parties.
It has also been submitted by the learned Counsel for the petitioner that the OPSC had given only general remarks and had not stated which officer had outstanding remarks for 4V2 years. It would not mean the relevant assessment of all officers which was required to be done as per Rules.
So far as second and third observations are concerned, it has been submitted by them that the CCR recordings were being done as per the Circular of the Government, as per which, higher officers like the accepting officers and countersigning officer were not required to give any reason while giving different grading.
His contention on the basis of above arguments is that the Tribunal has not committed anywhere or by giving direction for antedating promotion. The Tribunal has not added three more posts because the number of posts in the cadre were constant. The petitioners as well as the Opp. Parties all have already been promoted from the rank of O.A.S.-I, (Senior Branch) to O.A.S.-I. (Supertime Scale) and there was nothing wrong in giving direction for antedating promotion. Hence the argument advanced by the petitioner regarding creation of posts and addition of three more posts was fallacious because the officers already promoted had only to be given placement.
17. Mr. B. Routray appearing for Opp. Party Nos. 1 to 5 in W.P.(C) Nos. 6781 and 2090 of 2003 respectively placed reliance on the decision (Ranjeet Singh v. Ravi Prakash). He submitted that the State ought to have remained impartial, but in the instant case State has filed Writ Petitions challenging the order of the Tribunal.
He has also relied upon the case of Ishwar Chandra Mohanty v. State of Orissa and Anr., reported in AIR 1996 Orissa 173 wherein the Government passed an order of reversion exclusively on the basis of the opinion given to the effect by the Public Service Commission, without applying its own independent mind to the merit of the case laying down that the order can be validly challenged as vitiated by mala fides and not binding in law.
He has further cited a decision of the apex Court in the case of Lila Dhar v. State of Rajasthan and Ors. wherein it is held that the Court cannot sit in judgment over the methods of marking employed by interviewing bodies unless it is proven or obvious that the method of marking was chosen with oblique motive.
He has also relied upon the decision of the apex Court in the case of Nutan Arvind (Smt) v. Union of India and Ors. in which it has been held that when a High Level Committee had considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, the Supreme Court cannot sit over the assessment made by the D.P.C. as an appellate authority.
18. No doubt that under the 1995 Rules the Selection Board has been constituted to prepare a list of members of Orissa Administrative Service, Class-I (Senior Branch) and consider for promotion to supertime scale. But under those rules the Selection Board is not an independent body and the list of selected persons prepared by the Selection Board is to be forwarded to Commission for its concurrence.
19. It has been specifically provided in Rule 6(b) of 1995 Rules that the records of all the members of the Orissa Administrative Service, Class-I (Senior Branch) shall be sent to the Commission, who are proposed to be superseded along with the reasons for such supersession. Therefore, if the Selection Board is of the opinion that any junior officer having exceptional merit and suitability may be assigned a place higher than his seniors naturally, it will be supersession of the senior and in that case it would be mandatory for the Selection Board to give reason thereto. But the Selection Board had not given any reason in its recommendation which is evident from the minutes of the Selection Board meeting held on 24.4.2000.
The Public Service Commission did not agree with the recommendation of the Selection Board to the extent of supersession of the officers by their junior officers as mentioned from sl Nos. 1 to 7 by the Selection Board in the above mentioned minutes. The recommendation was sent to the State Government for consideration by the OPSC accordingly.
20. There is a catena of decisions of the apex Court that the selection by the Commission however is only a recommendation of the Commission and the final authority for appointment is the Government. The Government may accept the recommendation or may decline to accept the same. But if it chooses not to accept the recommendation of the Commission the Constitution enjoins the Government to place on the table of the Legislative Assembly its reasons and report for doing so. Thus the Government is made answerable to the House for any departure vide Article 323 of the Constitution. (See : Jatinder Kumar and Ors. v. State of Punjab and Ors.).
But in the instant matter the State Government had accepted the recommendation of the Public Service Commission and as such it is to be seen whether in this situation the decision of the State Government is subject to the judicial review or the Tribunal on the basis of its own evaluation considering the C.C.Rs. of only three applicants of the O.As. in question, could have taken a decision that the recommendation of the OPSC was not liable to be accepted and that of the Selection Board was to be accepted by the State Government.
21. In the case of Ashif Hammed and Ors. v. State of Jammu and Kashmir and Ors., , it has been held that while exercising power of judicial review of administrative action, the Court is not an appellate authority. The Constitution does not permit the Court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory power.
22. In the case of Union of India and Anr. v. Samar Singh and Ors. the apex Court relied on the decision in the case of Jai Naraian Mishra (Dr) v. State of Bihar wherein it was said as under:
So far as the question of suitability is concerned, the decision entirely rested with the Government. In other words the Government is the sole Judge to decide as to who is the most suitable candidate for being appointed as Director of Agriculture. For discharging that responsibility it was open to the Government to seek the assistance of the Public Service Commission. In our judgment the High Court was not justified in calling for records of the Public Service Commission and going through the nothings made by various officers in the Commission as well as the correspondence that passed between the Commission and the Government. The High Court overlooked the fact that the Government sought the assistance of the Commission and not that of the High Court for finding out the most suitable candidate. In this case there was no complaint of mala fides either on the part of the Government or the Commission. That being so the interference of the High Court in the matter of selection made by the Government was not called for.
23. In the case of Badrinath v. Government of Tamil Nadu the Hon'ble Court held in paragraphs 40 and 41 thereof in respect of the judicial review with regard to the assessment made by the D.P.C. as under:
40. Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, Courts and Tribunals cannot interfere with assessments made by Departmental Promotion committees in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspects of one's career is strongly displayed, or if the Interferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of judicial review under Article 226 of the constitution are not foreclosed.
4.1. While the Courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committees, the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to be scrutinized by Courts, within the narrow Wednesbury principles or on the ground of mala fides. The judicial power remains but its use restricted to rare and exceptional situations. We are making these remarks so that Courts or Tribunal may not- by quoting this case as an easy precedent-interfere with assessment of merit in every case. Courts and Tribunals can neither sit as appellate authorities nor substitute their own views to the views of Departmental Promotion committees. Undue interference by the Courts or Tribunals will result in paralysing recommendations of Departmental committees and promotions. The case on hand can be a precedent only in rare cases.
24. In the case of Union of India and Anr. v. S.B. Vohra and Ors. reported in AIR 2004 Supreme Court 1402, the Hon'ble Apex Court has relied upon the decision made by it earlier on the question of "Judicial Review" and observed as follows :-
However, we may notice that in the Comptroller and Auditor General of India and Anr. v. K.S. Jagannathan and Anr. this Court upon considering a large number of decisions including Dwarkanath v. Income-tax Officer, Special Circle, Kanpur , Hochtief Gammon v. State of Orissa , Mayor of Rochester v. Regina 1958 EB & E 1024. The King v. Revising Barrister for the Borough of Hanley (1912) 2 KB 518, Pad field v. Minister of Agriculture, Fisheries and Food 1968 AC 997 and Halsbury's Laws of England, Fourth Edition, Volume I, paragraph 89 observed:
There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to 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 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. 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 of mandamus or a writ in the nature of mandamus 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 concerned parties the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercise its discretion.
25. In a recent decision of the Hon'ble apex Court in the base of Union of India and Ors. v. Flight Cadet Ashish Rai reported in 2006 (1) Supreme 271 the apex Court held that there should be judicial restraint while making judicial review in administrative matters. The principles laid down therein in respect of judicial review are as under:
The duty of the Court is (a) to confine itself to the question of legality; (b) to decide whether the decision making authority has exceeded its power (c) committed an error of law (d) committed break of the rules of natural justice and (e) reached a decision which no reasonable Tribunal would have reached or (f) abused its powers.
26. The Tribunal has not perused the records of all the Officers, but perused the CCRs of only those officers who were placed by the Selection Board before their seniors in its recommendations. Therefore, it cannot be said that the Government while accepting the recommendation of O.P.S.C. has wrongly exercised its jurisdiction conferred upon it by a statute or has exercised its discretion with mala fide or by ignoring the relevant points for consideration.
27. Neither recommendation of the Selection Board nor of the Public Service Commission was binding upon the State Government. The Selection Board should not have sent its recommendation directly to the State Government without concurrence of the Public Service Commission. It was mandatory for the Selection Board in view of Rule 6 of the 1995 Rules to give reasons for proposal of supersession of senior officers by their juniors but the same were not given. The Commission did not agree with such recommendations and sent its own recommendations in accordance with their inter seseniority giving its own reasons, it is well settled that the Government is the ultimate decision making authority and the recommendation of the Public Service Commission was not binding upon the Government. It could very well turn down the recommendation of the Commission and could accept the recommendation of the Selection Board giving their reasonable in accordance with the Rules of Business. However, the State Government accepted recommendation of the Commission for which, to our mind, no reason was necessary to be given by the Government. It is to be noticed here that the Commission though received the recommendation of the Selection Board with a proposal to supersede senior officers by some junior officers without any reason, the Commission could only assess the reason which it did and had taken a dissenting view with its reason.
28. We may notice here that the Selection Board was comprising of the Senior Officers of the State Government headed by the Chief Secretary, as provided in Rule 4(2) of the Rules 1995 quoted in the body of this judgment and the recommendation of the Selection Board was very well available on the record of the State Government along with the recommendation of the O.P.S.C. But the State Government has chosen to accept the recommendation of the O.P.S.C. Therefore, we are of the considered opinion that the Tribunal could not have substituted its own decision in place of the decision taken by the decision making authority i.e. State Government and it committed manifest error of law in directing the State Government to issue reminders antedating the applicants' (before it) promotion to OAS supertime scale to the date when respondents Nos. 3 to 10 (before it) were promoted and to maintain their inter se seniority according to the placement assigned to them in the select list prepared by the Selection Board.
29. In view of the above discussions, the impugned judgment and order is not sustainable in the eye of law.
In the result, the writ petitions are allowed, the impugned judgment and order passed by the Tribunal in the above mentioned O.As. is quashed.
There would be no order as to costs.
N. Prusty, J.
30. I agree.