Orissa High Court
Dilip Routrai vs Union Of India And .... Opp. Parties on 10 September, 2024
Author: Chittaranjan Dash
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No. 16302 of 2022
Dilip Routrai .... Petitioner
Mr. Sunil J. Mathews, Advocate
-versus-
Union of India and .... Opp. Parties
Others
Mr. P. P. Behera, CGC (for O.P. No.1)
Md. Ziaul Haque, Advocate (for O.P. No.2)
Mr. Rabi Narayan Mishra, AGA (for O.P. No.3)
WP(C) No. 16303 of 2022
Dr. Avaya Kumar .... Petitioner
Nayak
Mr. Sunil J. Mathews, Advocate
-versus-
Union of India and .... Opp. Parties
Others
Mr. P. P. Behera, CGC (for O.P. No.1)
Md. Ziaul Haque, Advocate (for O.P. No.2)
Mr. Rabi Narayan Mishra, AGA (for O.P. No.3)
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 10.09.2024
Chittaranjan Dash, J.
1. The subject matter in issue challenged in both the above referred writ petitions being similar and heard analogously on the consent of the parties are disposed of by this common judgment.
2. Mr. Mathews, represents the Petitioners in both the writ Petitions. For brevity, while the Petitioner in W.P.(C) No. 16302 of 2022 hereinafter is referred to as "Petitioner No. 1", the Petitioner in WP(C) No. 16303 of 2022 is referred to as "Petitioner No. 2". Mr. P. Behera, CGC, representing the Union of India (O.P. No.1), Md. Ziaul Haque representing UPSC (O.P. No.2), and Mr. Rabi Narayan Mishra, AGA representing the State of Odisha (O.P. No.3).
3. Heard the learned counsels for the respective parties.
4. By means of this Writ Petition, Petitioner No. 1 and Petitioner No. 2 sought a direction to hold a Review Selection Committee meeting to consider their cases for inclusion in the Select List of State Civil Service (SCS) officers of Odisha towards filling up promotion quota vacancies in Odisha cadre of IAS under SCS category determined by the Government of India under Regulation 5(1) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, in consultation with the State Government for the Select List of 2019. Consequent upon the inclusion of their names in the Select List, they further sought an order directing the Opposite Parties to promote them to the Indian Administrative Service (IAS) against the vacancy year 2019, with effect from the date of promotion of the other 19 SCS officers, along with all service benefits. However, Page 2 of 37 it is pertinent to note the present status of the Petitioners, wherein, Petitioner No. 1 has already been promoted as IAS and Petitioner No. 2 has retired from the service. Given the current positions of the Petitioners as above, the relief sought by them may require consideration based on their individual circumstances which may include retrospective benefits or any other suitable orders as deemed fit by this Court.
5. The background facts of the case are that both Petitioner Nos. 1 and 2 are distinguished State Civil Service (SCS) officers from the State of Odisha, having consistently demonstrated exemplary service throughout their careers. Both the Petitioners were selected in a regular process of selection and appointed in the cadre of Odisha Administrative Service (State Civil Service) and joined as such. Petitioner No. 1 joined on 30.05.1990, whereas Petitioner No. 2 joined on 12.06.1990. Their respective service records are marked by a series of promotions to higher ranks within the OAS.
Petitioner No. 1 was promoted to O.A.S-I, O.A.S-I(SB), O.A.S (Supertime Scale), O.A.S. (Superior Administrative Grade), and the latest promotion, as on date of filing the O.A. 308/2021 (before CAT, Cuttack), with effect from 18.06.2021, was to the position of O.A.S. (Special Secretary Grade). Petitioner No. 2 on another hand, promoted to O.A.S-I, O.A.S-I(SB), O.A.S (Supertime Scale), O.A.S. (Superior Administrative Grade), and the latest promotion, as on the date of filing the O.A. 309/2021 (before CAT, Cuttack), with effect from 01.06.2021, was to the position of O.A.S. (Special Secretary Grade).
Page 3 of 37By virtue of their outstanding service records, both Petitioners became eligible for promotion to the Indian Administrative Service (IAS) for the recruitment year 2019. In a Selection Committee meeting held on 17.12.2020, both the names of the Petitioners were considered along with other eligible SCS officers. However, despite being assessed as "Very Good" in overall relative assessment as per the Assessment for the Select List of 2018 (annexed in Annexure-2 series) and Petitioner No. 1 placed at Sl. No. 30 and Petitioner No. 2 placed at Sl. No. 29 in the Assessment list, their names were not included in the final Select List for 2019 due to the limitation of vacancies. The names of 22 other officers from the said list were recommended in the Select List for 2019 provisionally including three officers (Sl. No. 1, 5, and 8) against whom disciplinary proceedings were pending. The Petitioners' claim that the inclusion of Sl. No. 1, 5 and 8 was provisional and should have been subjected to the "sealed cover procedure." The failure to apply this procedure deprived Petitioner No. 1 of his rightful promotion. Following the final Select List notification on 26.03.2021, Petitioner No. 1 submitted representations seeking redress, but to no avail.
6. Subsequently, both the Petitioners challenged the actions of the Opposite Parties, particularly the exclusion of their names from the 2019 Select List and the subsequent promotions that followed. They contend that the procedural lapses, particularly the failure to apply the "sealed cover procedure" for officers with pending disciplinary proceedings, unjustly deprived them of their promotions. These grievances were brought before the Central Administrative Tribunal (CAT), Cuttack Bench, in their respective Original Applications (O.A. Page 4 of 37 308/2021 for Petitioner No. 1 and O.A. 309/2021 for Petitioner No. 2). The dismissal of their claims by the Tribunal led them to seek judicial redress, challenging the legality, propriety, and correctness of the Tribunal's orders. Meanwhile, Petitioner No. 1, after an illustrious career in the OAS, was promoted to the IAS cadre on 21.01.2022, based on the subsequent Select List of 2020. Petitioner No. 2, however, has since retired from service, which adds complexity to his claim for retrospective promotion and corresponding service.
7. Mr. Matthews, learned counsel appearing for both Petitioner Nos. 1 and No. 2 submits that both having served with distinction in the Odisha Administrative Service (OAS) and having been assessed as "Very Good" in their respective evaluations, were unfairly excluded from the Select List due to flawed procedural handling. The 2019 Select List that was published on dated 26.03.2021 initially included 22 names, among which were those officers with pending disciplinary proceedings, specifically at Sl. Nos. 1, 5, and 8. These inclusions were noted to be provisional, pending the clearance of their disciplinary issues. This provisional listing, without the proper application of the "sealed cover procedure" mandated by Section 5(5) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, indicates a serious deviation from established procedural norms. Such a lapse undermines the integrity of the selection process, resulting in an unjust disadvantage to other deserving candidates, including both Petitioners. Mr. Matthews further contends that the subsequent publication of a revised list on the same day, 26.03.2021, which excluded these officers, only serves to highlight the procedural error inherent in the initial Select List. This revision underscores the Page 5 of 37 fact that the initial provisional inclusions were inappropriate and not in line with the regulations prescribed under Sections 5 and 7, which dictate the proper process for preparing and reviewing the Select List.
Furthermore, Petitioner No. 1, who was ultimately promoted to the IAS in 2022 based on the 2020 Select List, contends that this delay and the procedural error caused significant detriment to his career progression and rightful entitlement. Meanwhile, Petitioner No. 2, who has since retired, faces an additional challenge in seeking retrospective promotion and associated benefits due to the same procedural failings. Both Petitioners assert that the failure to follow due procedure not only compromised the fairness of their selection but also had a lasting impact on their professional trajectories. The learned counsel concludes that the Petitioners seek a judicial remedy to correct these procedural errors, which includes an order for retrospective promotion to the IAS for the 2019 vacancy year for both Petitioners and appropriate service benefits.
8. Mr. Behera representing the Union of India (O.P. No. 1) submits that the Selection Committee, in its meeting held on 17.12.2020, meticulously assessed all eligible officers within the zone of consideration, including the Petitioners, who were listed at Sl. No. 29 and 30 and despite the Petitioners' inclusion in the zone of consideration, the Committee, following a detailed evaluation, determined that the Petitioners could not be recommended for inclusion in the Select List. This decision was based on the size limit of the Select List and the presence of other officers with superior assessments, reflecting the principle of "merit-cum-seniority" that governs such selections. He further states that Regulation 7(4) of the Page 6 of 37 IAS (Appointment by Promotion) Regulations, 1955, stipulates a validity period for the Select List of up to sixty days from the date of its approval, however, since the names of these three provisionally included officers were not declared "unconditional" by the UPSC within this validity period, they could not be appointed to the Indian Administrative Service (IAS). As per the regulations, the unfilled vacancies from the 2019 Select List were carried forward to the next Select List of 2020, where these carried-forward vacancies were combined with the current year's vacancies, making a total of 14 vacancies. The Petitioner No. 1 was duly recommended by the Selection Committee for in the 2020 Select List, leading to his subsequent appointment to the IAS on 21.01.2022.
Regarding the Petitioners' assertion that the "sealed cover"
procedure should have been applied, it is submitted by Mr. Behera that this procedure is applicable in cases of promotion within a single cadre or service, where seniority is the primary criterion, however, in cases of promotion from the SCS to the IAS, the principle of "merit- cum-seniority" applies, and the selection process is based on a relative assessment of merit. The concept of sealed cover is not applicable in this context, where selection involves lateral induction from one service to another. Moreover, the regulations do not provide for a review of a Select List once it has been prepared and acted upon unless specific court directions mandate such a review. Regulation 7(4) clearly outlines the validity period of a Select List, beyond which it ceases to operate. Consequently, after the expiry of this period, any unfilled vacancies for whatever reason, whether due to provisional inclusion, an officer's unwillingness, or other factors are carried Page 7 of 37 forward to the next year's Select List. The provisional inclusion mechanism allows officers the opportunity to have their names unconditionally included during the validity period of the Select List. However, once this period expires, the list is no longer operative, and no further action can be taken on it.
Mr. Behera finally concludes that the Central Government has strictly adhered to the statutory provisions of the IAS (Appointment by Promotion) Regulations, 1955 and the Petitioners' claims do not take into account the specific regulatory framework from the State Civil Service to the IAS.
9. Mr. Haque representing the Union Public Service Commission begins his submission by explaining the process of selection of SCS into IAS. With regard to the contentions made by the Applicant, he submits that the provisional inclusion was in strict accordance with the provisions of the 1st proviso to Regulation 5(5) of the Promotion Regulations, 1955 and the contention of the Petitioner that the inclusion of the aforesaid officers in the Select List was illegal is entirely devoid of merit and likely stems from a misunderstanding of the applicable rules, regulations, and legal processes. It is pertinent to clarify that although this process is technically an appointment by promotion, it effectively serves as a lateral induction of State Service Officers into the All India Services (IAS/IPS/IFS). Furthermore, the Petitioner's insistence on applying the "Sealed Cover Procedure" to this case is misguided. The Sealed Cover Procedure, as outlined in the Departmental Promotion Committee (DPC) guidelines issued by the Department of Personnel & Training (DoPT), does not apply to appointments by promotion from State Civil Service to All India Page 8 of 37 Service (IAS). The Petitioner's argument is, therefore, without merit as it misinterprets the requirements and processes governing such promotions.
Mr. Haque furthers his argument that during the Selection Committee Meeting (SCM) on 17.12.2020, 66 officers were considered for 22 vacancies in the 2019 Select List, and all vacancies were filled. The claim that vacancies were left unfilled is incorrect. The non-appointment of officers due to pending disciplinary proceedings or other reasons does not create vacancies for the same year; such vacancies are carried forward to the next year's Select List as per DoP&T's letter No. 14015/12/2017-AIS (I) dated 15.09.2017. The finalised Select List remains unaltered to preserve its integrity. The three vacancies that arose due to the non-appointment of provisionally included officers were carried forward to the 2020 Select List, from which Petitioner No. 1 was appointed to the IAS.
10. Mr. Mishra, learned Addl. Government Advocate for the State, submits that all procedural norms and regulations were meticulously followed by the State Government during the preparation of the Select List. The Selection Committee, in its meeting, strictly adhered to the Promotion Regulations, and the Select List for the year 2019 was duly prepared by considering 66 officers against 22 vacancies, and all 22 vacancies were filled without leaving any unfilled positions. The merit-based approach ensures that only the most qualified officers are promoted, in line with the regulations and the interests of maintaining high standards within the IAS. He asserts that this case does not involve unfilled vacancies but rather pertains to the deletion of certain candidates' names from the Select List and since the Selection Page 9 of 37 Committee filled all the vacancies for the year 2019, there were no leftover vacancies to be carried forward. However, the concerned merit list was available to the Central Government for consideration in the promotion process. The Central Government's subsequent action to delete three vacancies from the Select List of 2019, despite the availability of this comprehensive merit list, establishes a decision of discretion, which may seem arbitrary, but even though, the 3 vacancies in question were carry forwarded to the next year for consideration, so, there are no grounds for this Court to intervene in this matter, as the Selection Committee's actions were reasonable, and within the scope of its discretion. Mr. Mishra finally submits that the judicial precedents make it clear that the courts should not reappraise the evidence or substitute their judgment for that of the Selection Committee unless there is a clear violation of the principles of natural justice or a demonstrable error in the application of the law and in this case, the actions of the State Government and the Selection Committee were in accordance with the law, and there is no need for the Court to go for the decision to hold the Select List for review, for the aforesaid reasons.
11. The impugned judgment, dated 19.05.2022 passed by the Central Administrative Tribunal in O.A. No. 308 of 2021 and O.A. No. 309 of 2021, primarily revolves around the Government of India's actions concerning the publication of the 2019 Select List for the promotion of officers to the Indian Administrative Service (IAS). As per the facts, initially, a Select List containing the names of 22 officers was published, including three officers against whom disciplinary proceedings (DP) were pending. Subsequently, on the same day, a list Page 10 of 37 with only 19 officers was issued for appointment, excluding the names of these three officers. This action led to questions regarding the status of the remaining vacancies, which were not filled despite the exclusion of the three officers.
12. The Petitioners, being aggrieved by the action of the Opposite Parties moved the learned Central Administrative Tribunal for redressal. The Tribunal dismissed the Original Application (O.A.) filed by the Petitioners, reasoning that the Government's actions were in compliance with the regulations governing the promotion process. The learned Tribunal noted that Regulation 7(4) mandates that the Select List remains in force until 31st day of December of the relevant year in which the selection meeting was held or for 60 days from the date of its approval, whichever is later. However, the judgment did not provide clarity on the Government's failure to explain the fate of the three vacancies left unfilled after the exclusion of the three officers, which directly impacted the Petitioners' chances of promotion.
13. We delved into the procedure for appointment to the Indian Administrative Service (IAS) by promotion from the State Civil Services as has been outlined in the Indian Administrative Service (Appointment by Promotion) Regulations, 1955. The relevant provision reads as follows:
3. Constitution of the Committee to make Selection: - 3(1) There shall be constituted for a State Cadre or a Joint Cadre specified in column 2 of Schedule, a committee consisting of the Chairman of the Commission or where the Chairman is unable to attend, any other member of the Commission representing it and other members specified in the corresponding entry of column 3 of the said Schedule:Page 11 of 37
Provided that -
(i) no member of the Committee other than the Chairman or the member of the Commission shall be a person who is not a member of the Service; (iA) the nominee of the Government of India shall not belong to the cadre of the State for which the meeting of the Committee is to be held;
(ii) the Central Government may after consultation with the State Government concerned amend the Schedule.
....
5. Preparation of a list of suitable officers: - 5(1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the Service. The number of members of the State Civil Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held, in the posts available for them under rule 9 of the recruitment rules. The date and venue of the meeting of the Committee to make the selection shall be determined by the Commission:
Provided that no meeting of the Committee shall be held, and no list for the year in question shall be prepared when,
(a) there are no substantive vacancies as on the first day of January of the year in the posts available for the members of the State Civil Service under rule 9 of the recruitment rules; or
(b) the Central Government in consultation with the State Government decides that no recruitment shall be made during the year to the substantive vacancies as on the first day of January of the year in the posts available for the members of the State Civil Service under rule 9 of the recruitment rules:
Provided further that where no meeting of the Committee could be held during a year for any reason other than that provided for in the first proviso, as and Page 12 of 37 when the Committee meets again, the select list shall be prepared separately for each year during which the Committee could not meet, as on the 31st December of each year;
Explanation- In the case of joint cadres, a separate Select List shall be prepared in respect of each State Civil Service;
5(2) The Committee shall consider for inclusion to the said list, the cases of members of the State Civil Services in the order of a seniority in that service of a number which is equal to three times the number referred in sub-regulation (1):
Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers: Provided further that in computing the number for inclusion in the field of consideration, the number of officers referred to in sub-regulation (3) shall be excluded:
Provided also that the Committee shall not consider the case of a member of the State Civil Service unless, on the first day of January of the year for which the Select List is prepared he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government. Provided also that in respect of any released Emergency Commissioned or Short Service Commissioned Officers appointed to the State Civil Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of the January of the year for which the select list is prepared, in the Page 13 of 37 post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government. Explanation: - The powers of the State Government under the third proviso to this sub-regulation shall be exercised in relation to the members of the State Civil Service of a constituent State, by the Government of that State.
5(3) The Committee shall not consider the cases of the members of the State Civil Service who have attained the age of 54 years on the first day of January of the year for which the Select List is prepared: Provided that a member of the State Civil Service whose name appears in the Select List [prepared for the earlier year] before the date of the meeting of the Committee and who has not been appointed to the Service only because he was included [provisionally in that Select List] shall be considered for inclusion in the fresh list to be prepared by the Committee, even if he has in the meanwhile attained the age of fifty-four years:
Provided further that a member of the State Civil Service who has attained the age of fifty-four years on the first day of January of the year for which the select list is prepared shall be considered by the Committee, if he was eligible for consideration on the first day of January of the year or of any of the years immediately preceding the year in which such meeting is held but could not be considered as no meeting of the Committee was held during such preceding year or years under item (b) of the proviso to sub-regulation (1).
5(4) The Selection Committee shall classify the eligible officers as 'Outstanding', 'Very Good', 'Good' or 'Unfit', as the case may be, on an overall relative assessment of their Service records. 5(5) The list shall be prepared by including the required number of names, first from amongst the officers finally classified as 'Outstanding' then from amongst those similarly classified as 'Very Good' and thereafter from amongst those similarly classified as 'Good' and the order of names inter-se within each Page 14 of 37 category shall be in the order of their seniority in the State Civil Service.
Provided that the name of any officer so included in the list, shall be treated as provisional, if the State Government, withholds the integrity certificate in respect of such an officer or any proceedings, departmental or criminal, are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government.
Provided further that while preparing year-wise select lists for more than one year pursuant to the second proviso to sub-regulation (1), the officer included provisionally in any of the select list so prepared, shall be considered for inclusion in the select list of subsequent year in addition to the normal consideration zone and in case he is found fit for inclusion in the suitability list for that year on a provisional basis, such inclusion shall be in addition to the normal size of the select list determined by the Central Government for such year.
Explanation I: The proceedings shall be treated as pending only if a charge-sheet has actually been issued to the officer or filed in a Court, as the case may be.
Explanation II: The adverse thing which came to the notice of the State Government rendering him unsuitable for appointment to the Service shall be treated as having come to the notice of the State only if the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential.
14. The process begins with the constitution of a committee as per Regulation 3(1). This Committee, formed by the Central Government in consultation with the State Government, typically consists of the Chairman or a member of the Union Public Service Commission Page 15 of 37 (UPSC) as the head, alongside the State's Chief Secretary and one or more senior IAS officers. The composition of this Committee ensures a balanced and fair selection process, incorporating inputs from both Central and State levels. The proviso to Regulation 3(1) provides a mechanism to resolve any deadlock within the Committee, allowing the Central Government to make the final decision if the votes are evenly split. Following the constitution of the Committee, the selection process moves to the preparation of the list of eligible officers under Regulation 5(1). The Committee is mandated to meet annually to compile a list of State Civil Service officers deemed fit for promotion to the IAS, based on the evaluation of their service records over at least the past five years. The proviso to Regulation 5(1) offers flexibility by allowing the Committee to prepare the list for more than one year if it had been unable to meet in previous years. This ensures that officers who might have been eligible for promotion in an earlier year are not unfairly overlooked.
15. Regulation 5(2) provides guidelines for the "zone of consideration," which determines the pool of State Civil Service officers eligible for inclusion in the Select List for promotion to the Indian Administrative Service (IAS). The Committee is required to consider officers in the order of their seniority, specifically a number equal to three times the vacancies that exist, as referred to in sub-
regulation (1). However, this restriction does not apply in States where the total number of eligible officers is less than three times the number of vacancies; in such cases, all eligible officers are considered. Additionally, certain officers are excluded from this count, and only those who meet specific eligibility criteria, such as a minimum of Page 16 of 37 eight years of continuous service as a Deputy Collector or equivalent, are included. Special provisions are made for released Emergency Commissioned or Short Service Commissioned Officers, whose service is counted from a deemed date of appointment, provided they meet the requisite service requirements by the first day of January of the relevant year.
Regulation 5(3) sets an upper age limit of 54 years for officers to be considered for the Select List. It also includes exceptions for those whose names were provisionally included in a Select List for a previous year or those who were eligible in preceding years but could not be considered due to non-convening of a committee meeting in that particular year. This ensures that deserving candidates are not disadvantaged due to procedural delays, even if they have crossed the age limit in the interim.
Regulation 5(4) requires the Selection Committee to classify eligible officers into categories based on their service records:
'Outstanding', 'Very Good', 'Good', or 'Unfit'. This classification is crucial as it directly influences the preparation of the Select List, ensuring that only the most meritorious officers are considered for promotion. The classification is based on an overall relative assessment of each officer's service records, emphasising the importance of performance over mere seniority.
Regulation 5(5) describes the process for preparing the Select List, which is done by including names first from the 'Outstanding' category, then from 'Very Good', and finally from 'Good', in that order. Within each category, names are arranged according to seniority in the State Civil Service. However, any officer whose Page 17 of 37 integrity certificate is withheld, or against whom departmental or criminal proceedings are pending, is included in the list provisionally. The regulation also allows for year-wise Select Lists to be prepared for multiple years at once, with provisional inclusions from previous lists considered in subsequent years. This ensures continuity and fairness in the selection process, even when dealing with complex cases involving pending investigations or charges.
16. The "zone of consideration" as prescribed in Regulation 5(2) is a crucial concept in the process of promoting State Civil Service officers to the Indian Administrative Service (IAS). Although the term may not be explicitly mentioned as such, it refers to the pool of eligible officers whose records are reviewed by the Selection Committee while preparing the Select List for promotion. The importance of this zone lies in its function as a filter ensuring that only the most qualified and eligible officers are considered for promotion.
By establishing clear guidelines, such as seniority and a minimum number of eligible candidates (three times the number of vacancies), the regulations aim to create a merit-based selection process that prioritises fairness, performance and seniority. When a list is published as an "Assessment for the Select List," it effectively serves as a merit list, identifying officers within the zone of consideration who meet the eligibility criteria. This assessment process involves classifying officers based on their service records into categories such as 'Outstanding,' 'Very Good,' and 'Good.' The Selection Committee then uses this classification to prepare the Select List, starting with the most highly-rated officers. This method ensures that promotions are Page 18 of 37 awarded not merely based on seniority but on a comprehensive evaluation of an officer's career performance.
Moreover, seniority plays a significant role in the selection process, as outlined in the regulations. Within each category of merit (Outstanding/Very Good/Good), officers are arranged in the order of their seniority in the State Civil Service. The principle of "merit-cum- suitability" with due regard to seniority is well-established when it comes to promotions to higher cadre positions and is a consistent criterion applied by the Government and its organisations for selection for promotion. The regulations also make it clear that seniority is not the primary determining factor; an officer must demonstrate a level of performance that justifies their inclusion in the Select List. This balance between merit and seniority in the principle and in practice ensures that while experience is respected, it is not the sole criterion for advancement.
17. Similarly, if we further delve into the Regulations following the preparation of the list - 6. Consultation with the Commission: -
This list prepared in accordance with regulation 5 shall then be forwarded to the Commission by the State Government along with-
(i) the records of all members of the State Civil Service included in the list;
(ii) the records of all members of the State Civil Service who are proposed to be superseded by the recommendations made in the list;
×××
(iv) the observations of the State Government on the recommendations of the Committee.
6A. The State Government shall also forward a copy of the list referred to in regulation 6 to the Central Government and the Central Government shall send Page 19 of 37 their observations on the recommendations of the Committee to the Commission.
7. Select List: - (1) The Commission shall consider the list prepared by the Committee along with-
(a) the documents received from the State Government under regulation 6;
(b) the observations of the Central Government and, unless it considers any change necessary, approve the list.
7(2) 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 [and the Central Government] of the changes proposed and after taking into account the comments, if any, of the State Government 41[and the Central Government], may approve the list finally with such modification, if any, as may, in its opinion, be just and proper.
7(3) The list as finally approved by the Commission shall form the Select List of the members of the State Civil Service.
Provided that if an officer whose name is included in the Select List is, after such inclusion, issued with a charge-sheet or a charge-sheet is filed against him in a Court of Law, his name in the Select List shall be deemed to be provisional.
7(4) The Select List shall remain in force till the 31st day of December of the year in which the meeting of the selection committee was held with a view to prepare the list under sub-regulation (1) of regulation 5 or upto sixty days from the date of approval of the select list by the Commission under sub-regulation (1) or, as the case may be, finally approved under sub- regulation (2), whichever is later:
Provided that where the State Government has forwarded the proposal to declare a provisionally included officer in the select list as "unconditional", to the Commission during the period when the select list was in force, the Commission shall decide the matter within a period of forty-five days or before the date of meeting of the next selection committee, Page 20 of 37 whichever is earlier and if the Commission declares the inclusion of the provisionally included officer in the select list as unconditional and final, the appointment of the concerned officer shall be considered by the Central Government under regulation 9 and such appointment shall not be invalid merely for the reason that it was made after the select list ceased to be in force.
Provided further that in the event of any new Service or Services being formed by enlarging the existing State Civil Service or otherwise being approved by the Central Government as the State Civil Service under Clause (j) of sub-regulation (1) of regulation 2, the Select List in force at the time of such approval shall continue to be in force until a new select list prepared under regulation 5 in respect of the members of the new State Civil Service, is approved under sub- regulation (1) or, as the case may be, finally approved under sub-regulation (2).
Provided also that where the select list is prepared for more than one year pursuant to the second proviso to sub-regulation (1) of regulation 5, the select lists shall remain in force till the 31st day of December of the year in which the meeting was held to prepare such lists or upto sixty days from the date of approval of the select lists by the Commission under this regulation, whichever is later.
9. Appointments to the Service from the Select List. - 9(1) Appointment of a member of the State Civil Service, who has expressed his willingness to be appointed to the Service, shall be made by the Central Government in the order in which the names of the members of the State Civil Service appear in the Select List for the time being in force during the period when the select list remains in force:
Provided that the appointment of members of the State Civil Service shall be made in accordance with the agreement arrived at under clause (b) of sub-rule (3) of rule 8 of the Recruitment Rules in the order in which the names of the members of the State Civil Page 21 of 37 Service occur in the relevant parts of the Select List for the time being in force.
Provided further that the appointment of an officer, whose name has been included or deemed to be included in the select list provisionally under the proviso to sub-regulation (5) of regulation 5 or under the proviso to sub-regulation (3) of regulation 7, as the case may be, shall be made within sixty days after the name is made unconditional by the Commission in terms of the first proviso to sub-regulation (4) of regulation 7:
Provided also that in case a select list officer has expressed his unwillingness for appointment to the service, he shall have no claim for appointment to the service from that select list unless he informs the Central Government through the State Government before the expiry of the validity period of the select list, revoking his earlier expression of unwillingness for appointment to the service.
10. Power of the Central Government not to appoint in certain cases: -
Notwithstanding anything contained in these Regulations, the Central Government may not appoint any person whose name appears in the Select List, if it is of opinion that it is necessary or expedient so to do in the public interest.
Provided that no such decision shall be taken by the Central Government without consulting the Union Public Service Commission.
18. Regulation 6 outlines the procedure for forwarding the list prepared by the Selection Committee to the Union Public Service Commission (UPSC). It requires the State Government to submit the list along with the records of all members of the State Civil Service included in the list, records of those proposed to be superseded, and the State Government's observations on the recommendations. This process ensures that the UPSC receives a comprehensive view of the selection, including both the merits and any issues related to the Page 22 of 37 officers considered for promotion. Regulation 6A further stipulates that a copy of this list must also be sent to the Central Government, which then provides its observations. This multi-tiered review system is designed to ensure transparency and thoroughness in the evaluation of the list.
Regulation 7(1) mandates that the UPSC review the list prepared by the Selection Committee, alongside the documents and observations submitted by both the State and Central Governments. The UPSC's role is to ensure that the list meets the regulatory requirements and reflects an accurate and fair assessment of the candidates. If the Commission finds no need for changes, it approves the list as is. This provision empowers the UPSC with a pertinent role in the approval of the Select List, maintaining oversight and ensuring compliance with established standards.
Under Regulation 7(2), if the UPSC considers any change(s) necessary after reviewing the list, it must inform the State and Central Governments of the proposed modifications. The Commission then takes into account any comments from the State and Central Governments before finalising the list. This regulation allows for adjustments to the list based on further review or new information, ensuring that the final Select List accurately reflects the suitability of candidates for promotion.
Regulation 7(3) stipulates that the list, once approved by the UPSC, becomes the official Select List. This regulation provides for provisional status if an officer included in the list is later issued a charge-sheet or faces legal proceedings. The provisional status ensures that any adverse developments affecting an officer's suitability are Page 23 of 37 considered before final appointments are made, maintaining the integrity of the Select List.
Regulation 7(4) defines the validity period of the Select List, specifying that it remains in force until 31st day of December of the year in which the selection meeting was held or up to sixty days from the date of approval, whichever is later. It also addresses the handling of provisionally included officers, requiring the UPSC to decide on their status within forty-five days if the State Government submits a proposal to make their inclusion unconditional. This regulation ensures that provisional inclusions are resolved in a timely manner and that the Select List remains current, applicable, and free from impediments.
Regulation 9 governs the appointment process from the Select List, specifying that appointments are to be made by the Central Government in the order of the list's ranking during its validity period. It also includes provisions for handling provisional inclusions, ensuring that appointments are made within sixty days after the officer's status is made unconditional. If an officer previously expressed unwillingness for appointment, they must revoke this unwillingness within the list's validity period to be considered. This regulation ensures that the appointment process follows the merit order of the Select List and addresses provisional cases appropriately.
Regulation 10 provides the Central Government with the authority to withhold appointments from the Select List if deemed necessary in the public interest. This discretion is subject to consultation with the UPSC, ensuring that the decision to withhold appointments is made with oversight and in accordance with broader Page 24 of 37 considerations of public interest. This regulation allows for flexibility in the appointment process while maintaining a check on the exercise of this power.
19. Coming to the instant case, as per the Annexure-2 series, the Selection Committee meeting (SCM) for the Odisha State Civil Service (SCS) officers was held on 17.12.2020, with all the officials including the member from the Union Public Service Commission (UPSC), Chief Secretary, Govt of Odisha, Principal Secretary, GA & PG Dept, Govt of Odisha, Joint Secretary-Ministry of Tourism, Govt of India, And Joint Secretary-Dept of Defence Production, Govt of India, present. During this meeting, 22 eligible officers were enlisted from the curated merit list with 66 eligible officers, with three officers (in Sl. No. 1, 5, and 8) being provisionally included due to pending disciplinary proceedings. This provisional inclusion was an indication that these officers' final inclusion was contingent upon the resolution of their disciplinary issues. The list, including these provisional names, was forwarded to the Chief Secretary of the Government of Odisha on 23.12.2020. It was subsequently approved by the UPSC on 16.03.2021, as notified in the notification dated 26.03.2021 of Select List. However, in absence of any material showing the approval of Select List to have been accorded in 16.3.2021, the only conclusion that can be drawn is that the inclusion, approval, and deletion all was done on 26.3.2021. This timeline was in adherence to the 60-day window prescribed by Regulation 7(4), which specifies that the Select List remains valid until 31st day of December of the year in which the selection meeting was held or up to 60 days from the date of approval by the UPSC (which would have been in the month of May 2021), Page 25 of 37 whichever is later. However, the subsequent release of the final appointment list on the same day as the notification of the approved list raises concern regarding the haste. The list containing the appointment of 19 officers, did not incorporate the names of the three provisionally included officers.
20. According to the first proviso to Regulation 7(4), the State Government is further provided with a 45-day window, or until the date of the next Selection Committee meeting, whichever was earlier, to resolve the status of these provisionally included officers and to re- release the list either with or without their names. The critical point here is that the final list was published on the same day as the approved list without addressing the pending disciplinary matters of the officers or re-releasing the list within the 45-day window, with no explanation or proof of correspondence either with the State or the Commission.
Furthermore, if the UPSC declares the inclusion/exclusion as final, as the case may be, the appointment of the officer is to be considered under Regulation 9, even if this decision is made after the Select List's validity period has expired. The 45-day period provided under the first proviso to Regulation 7(4) was intended to ensure a fair process for resolving the status of provisionally included officers. By not utilising this full period, the Central Government's actions suggest an oversight that may have led to unfairness, as in the exclusion of the three provisionally included officers, and even to the Petitioners who may have been next in line for promotion, potentially impacting their rights and promotions.
Page 26 of 3721. Furthermore, the Government's decision to exclude the three provisionally included officers from the final 2019 Select List, while failing to address the status of the remaining vacancies, raises substantial concern regarding the compliance with and the intent of the relevant regulations. Regulation 5(5) emphasises the preparation of the Select List by including names by following the principle of merit- cum-suitability with due regard to seniority. This regulation inherently assumes that if vacancies exist, they should be filled with the next eligible candidates in the zone of consideration based on the merit list, which could include the Petitioner No. 1 and Petitioner No. 2, who could have been next for consideration after the exclusion of the three officers. Regulation 5(2), which mandates that the Committee must consider a number of officers equal to three times the number of vacancies, aims to ensure that enough candidates are evaluated to fill all available positions, including those that may become available if initially provisionally included officers are eventually removed from the list. By excluding the three officers without re-addressing the remaining vacancies, the Government essentially rendered those positions unfilled, which directly impacts the opportunity for the next eligible candidates.
22. Further complicating this situation is the non-compliance with Regulation 6 and Regulation 10. Regulation 6 requires the State Government to forward the Select List, along with all relevant records and observations, to both the UPSC and the Central Government. Regulation 10 provides that the Central Government may not appoint anyone from the Select List if it deems necessary for public interest but must do so only after consulting the UPSC. The final list released Page 27 of 37 on 26.03.2021, failed to show any correspondence or consultation with the UPSC or the State Government regarding the exclusion of the three officers. This lack of documented consultation indicates a procedural lapse and undermines the regulatory framework designed to ensure transparency and fairness.
23. The absence of any explanation for the status of the three vacant positions further compounds the issue. The Central Government's failure to clarify how these vacancies were to be addressed or carried forward is inconsistent with the regulatory intent, which aims to provide a clear and fair process for filling vacancies. The State Government's contention that since the merit list (as may be referred to the list of officers in the zone of consideration) was already placed before the Central Government, it could have considered adding additional names to fill the vacancies inherent in it, highlights a procedural oversight on the part of Central Government. The regulations implicitly require that vacancies not be left unfilled and that any remaining candidates in the merit list be given due consideration.
24. Moreover, the Government of India's response in the letter dated 14.09.2021 as per Annexure-14, presents several contradictions to the established regulations and practices governing the promotion of officers to the Indian Administrative Service (IAS). The response in the letter asserts that the Select Committee for the 2019 list prepared it against 22 vacancies, and that no vacancy was left unfilled. However, this contradicts the action taken on the same day when the revised Select List excluded three provisionally included officers without utilising the 45-day window provided by Regulation 7(4) to resolve Page 28 of 37 their status. The response claims that any vacancies arising from exclusion of provisionally selected officer, are carried forward to the next year's Select List.
Yet, if clear vacancies existed due to the exclusion of the three officers whose name were not considered even provisionally in the list of officers appointed, the regulations necessitate that the next eligible candidates from the merit list for 2019 should have been considered before preparing the 2020 list. The argument that vacancies are carried forward to the next year without addressing the 2019 merit list fails to comply with Regulation 5(2), which mandates consideration of a number of candidates equal to three times the number of vacancies to ensure all potential vacancies are filled.
25. Furthermore, the response in the letter emphasises that once the Select List is approved and acted upon, it cannot be modified, citing the finality of the list which overlooks the provision in Regulation 7(4) that allows for adjustments based on the resolution of disciplinary proceedings within a specified period. The Government's further failure to provide any documentation or proof of consultation with the UPSC or the State Government clearly undermines the procedural integrity, as required by Regulation 6.
26. At this juncture, it is imperative upon this Court to address the 2017 DoP&T guideline, cited by the learned counsel for the UPSC, which provides a framework for handling unfilled vacancies during the preparation of year-wise Select Lists as follows:
"4. It has been observed, while preparing year-wise Select Lists, that the number of officers to be included in the Select List of a particular year, in a State, was Page 29 of 37 less than the number of vacancies determined. However, the Selection Committee could not carry forward the unfilled vacancies to the Select List of the next year. It is observed that this would be against the principles of recruitment wherein the immediate charge of any unfilled vacancy(ies) for a particular year would be for the officer(s) considered for immediately next year.
5. In view of above, it is hereby clarified that in case of a situation arising as above, the Selection Committee shall have inherent power to dynamically determine the vacancies for preparing the Select List of the subsequent year by carrying forward the unfilled vacancies from the previous year and adding it to the already determined vacancies for the subsequent year. There would be no need to re-
convene the Selection Committee Meeting and recommendations of the Selection Committee can be suitably modified accordingly."
27. In considering the above 2017 DoP&T guideline within the context of the current case, it is observed that the interpretation presented by the UPSC seems to be at odds with the clear intent of the guideline. The guideline explicitly states about a situation arises where the number of officers included in the Select List for a particular year is less than the number of determined vacancies. Even then, the Selection Committee cannot carry forward the unfilled vacancies to the Select List of the next year. Instead, the guideline emphasises that the immediate responsibility for any unfilled vacancies should fall on the officers being considered for the next year's selection, implying that these vacancies should be addressed within the context of the ongoing selection process. It is crucial to recognize that this situation does not involve unfilled vacancies due to a lack of eligible candidates. The circumstances of the instant case differ significantly.
Page 30 of 37Here, all 22 vacancies were initially filled by the Selection Committee, with eligible candidates, including those whose names were later deleted from the final Select List due to pending disciplinary proceedings. Given this distinction, the argument that the Select List could not be modified after its preparation and that the vacancies had to be carried forward appears contradictory when juxtaposed against the actual actions taken, where vacancies were filled but later intentionally left unoccupied by removing certain candidates. This deletion/removal does not equate to unfilled vacancies as envisaged in the DoP&T guideline but represents an administrative action that effectively altered the composition of the Select List after its preparation.
28. The guideline further clarifies that the Selection Committee possesses the inherent power to dynamically adjust the number of vacancies when preparing the Select List for the subsequent year by incorporating any unfilled vacancies from the previous year. This process does not require reconvening the Selection Committee; instead, the recommendations can be modified to reflect the updated vacancy count.
Contrary to the Central Government's claim that once a Select List for 2019 was prepared, it could not be modified and that unfilled vacancies had to be carried forward, the guideline suggests flexibility in managing vacancies, yet the Central Government made no correspondence to that effect. The provision that recommendations can be modified without reconvening the Selection Committee directly contradicts the argument that a finalised Select List cannot be altered. Furthermore, the State Government has argued that they had Page 31 of 37 already submitted a merit list with 66 officers in the zone of consideration, the Central Government had the option to include additional officers to address any vacancies, aligning with the guideline's intent to ensure that vacancies are promptly filled and not unnecessarily carried forward.
The post could be said to have been filled, had the names of the three candidates as placed in the finally approved list would have been considered for appointment provisionally subject to the result of their departmental proceeding, but they having not considered at all and those having deleted in absolute there remained three clear vacancy for the year 2019 which ought to have been filled up from the list of officers placed in the zone of consideration as supplied by the State Government without further reference to it.
29. In light of the 2014 UPSC internal guideline vide F. No. 4/3/2005-AIS, it is provided as below -
"G. 9. GUIDELINES RELATING TO RETENTION OF EARLIER YEAR GRADING BY THE REVIEW SCM: The Promotion Regulations do not provide for suo-motu review of the Select List already prepared, approved by the Commission and acted upon by the Central Govt. However, sometimes, on specific directions of the competent courts, the Select Lists are required to be reviewed. While convening Review SCMs in compliance with the directions of courts on account of revision of seniority or to rectify some procedural irregularity that crept in the proceedings of the original Selection Committee, if the officer has already been considered by an earlier Selection Committee, in the first instance the State Government may be requested to indicate whether there is any material change in the relevant record of the concerned officer after consideration of his case by Page 32 of 37 the initial Committee for promotion to the Indian Administrative Service/Indian Police Service/Indian Forest Service. In the event the State Government certifies that there is no material change in the service records of the officer in the relevant years, the Review Committee may not change the grading of the officer already assigned by the earlier Committee. In exceptional circumstances, in case the Selection Committee recommends any change in the grading, specific reasons for the change should be appropriately recorded by the Review Committee in the minutes."
30. When directed by competent courts to review Select Lists due to reasons such as revisions of seniority or rectifications of procedural irregularities, the procedure mandates that the State Government first certify whether there have been any material changes in the relevant service records of the officers since the original consideration. This guideline acknowledges the possibility of altering an officer's grading only under exceptional circumstances and with appropriate documentation of the reasons for any changes. Since the instant case involves the clear deletion of candidates from the Select List, leading to 3 vacancies, it raises concerns about the fairness in actions of the Central Government. The fact that the Select List was already prepared and acted upon, and that there is no provision for suo-motu review, reinforces the position that the deletions may have contravened established procedures and is subject to judicial review. Thus, the guideline's emphasis on the careful and justified alteration of grading in exceptional circumstances supports a closer examination of whether the deletions were executed within the permissible boundaries of procedural fairness and correctness.
Page 33 of 3731. Coming to the question of judicial review vis-à-vis the adjudication made by the Tribunal, we can consider pertinent judgments as in the matter of Union of India vs. P. Gunasekaran, reported in AIR 2015 SC 545, the Hon'ble Supreme Court of India propounded the following guidelines:
The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.Page 34 of 37
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience.
These above laid guidelines emphasise that the High Court may not re-appreciate evidence or interfere with conclusions reached by the competent authorities in disciplinary proceedings unless certain specific criteria are met, such as procedural irregularities, violations of natural justice, or reliance on extraneous considerations.
In the instant case, this precedent underscores the need to focus the judicial review on whether the Selection Committee acted within its authority, followed the prescribed procedure, and avoided any procedural or substantive errors that could have led to an unjust outcome. Given the clear deletion of candidature from the Select List, it is crucial to argue that this action could have been influenced by considerations extraneous to the merits of the case, thus falling within the permissible grounds for High Court intervention as outlined in Gunasekaran (supra). The deletion reflects an arbitrary and capricious decision-making process, which would allow the High Court to scrutinise whether the Selection Committee's actions were so unreasonable that no fair-minded authority could have arrived at such a conclusion. Therefore, while the High Court should avoid re- assessing the evidence, it is within its purview to examine whether the deletion of the candidature violated principles of natural justice or was based on irrelevant factors, thereby justifying a review or correction of the process.
32. The lack of transparency and proper consultation, therefore, by all the Opposite Parties combined with the unaddressed vacancies, Page 35 of 37 reflect a departure from the letter and spirit of the IAS (Appointment by Promotion) Regulations, 1955. The exclusion of provisionally included officers, and non-consideration of the Petitioners who could have been next in line for promotion, potentially impacting their rights and promotions, without properly addressing the vacancies, coupled with the lack of proper correspondence and consultation, suggests a procedural lapse and a failure to uphold the fair and transparent process mandated by the IAS (Appointment by Promotion) Regulations, 1955.
33. In the backdrop of the discussions above, the Opposite Parties are directed to comply the following:-
i. The O.P. No. 2 shall convene a Review Selection Committee, ensuring that it is constituted in accordance with the letter and spirit of the IAS (Appointment by Promotion) Regulations, 1955 and to conduct a thorough review of the procedural compliance, including the documentation and consultations amongst all the Opposite Parties, as mandated by Regulations 6 and 10.
ii. The Review Selection Committee shall ensure that the vacancies identified are accurately represented in the review process and that the next eligible candidates from the merit list are considered for those positions, as originally required. iii. The O.P. No. 3 shall ensure all necessary compliance enabling the Review Selection Committee to grant benefit retrospectively, may it be notional or otherwise to the Petitioners, as would be befitting to the respective cases, and, do not adversely impact officers who were already promoted Page 36 of 37 in previous selections unless such a change is warranted due to legal directives or the rectification of errors in the selection process.
iv. Upon the conclusion of the review, the O.P. No. 1 shall promptly issue appropriate orders, as the case may be, in accordance with the recommendations made by the Review Selection Committee.
The entire exercise shall be completed within three months hence.
34. As a corollary, the impugned orders in both cases in O.A. 308/2021 and O.A. 309/2021 passed by the learned Central Administrative Tribunal, Cuttack Bench, are set aside. Both the writ Petitions are accordingly allowed.
(Chittaranjan Dash) Judge (S.K. Sahoo) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 12-Sep-2024 10:11:38 A.K.Pradhan/Bijay Page 37 of 37