Gauhati High Court
Arup Kumar Das vs The Union Of India & Ors on 22 July, 2013
Author: I. A. Ansari
Bench: I. A. Ansari
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM AND
ARUNACHAL PRADESH)
WP(C) No. 4548 of 2012
Sri Arup Kumar Das
- Petitioner
- Versus -
Union of India and others
-Respondents
BEFORE THE HON'BLE MR. JUSTICE I. A. ANSARI THE HON'BLE DR. (MRS.) JUSTICE INDIRA SHAH Advocates present:
For the petitioner : Mr. N Nath, Advocate.
For the respondents : Mr. DC Chakraborty,
Central Govt. Counsel,
Mr. I Hussain, SC, CGC,
Mr. PS Deka, Govt. Advocate, Assam,
Mr. S. Sharma, Advocate,
Mr. DK Mishra, Amicus Curiae,
Date of hearing : 20th June, 2013.
Date of Judgment : 22nd July, 2013
Judgment and Order
(Ansari, J)
The material facts, giving rise to the present writ petition, made under Article 226 of the Constitution of India, may, in brief, be set out as under:
(i) The petitioner came to be appointed, on 18-11-1982, as Assistant Conservator of Forest, Government of Assam, and he was promoted, on 21-11-1986, as Deputy Conservator of Forests. The State Page 2 Government published, on 25-08-2005, a draft gradation list showing inter se seniority of Deputy Conservator of Forests as on 01-08-2005.
(ii) The Union Public Service Commission (hereinafter referred to as 'UPSC') constituted, in the year 2009, a Selection Committee to recommend suitable officials from State Forest Service for promotion to the Indian Forest Service for the year 2008, the number of vacancies, for carrying out promotion to the Indian Forest Service, being three for the year 2008.
(iii) As the zone of consideration is taken 3 times the number of vacancies available, 9 names were to be considered for filling up the said 3 vacancies for the year 2008. The names of the writ petitioner as well as the 4th respondent herein were included amongst the incumbents, whose candidature was placed before the Selection Committee for consideration.
(iv) The Selection Committee convened its meeting to recommend the names of the State Forest Service Officials for promotion to the Indian Forest Service for the year 2008. Promotion from the State Forest Service to the Indian Forest Service (hereinafter referred to as 'IFS') is governed by the Indian Forest Service (Appointment by Promotion) Regulations, 1966 (hereinafter referred to as the 'Promotion Regulations') and the criterion for such promotion is merit-cum-suitability.
(v) Regulation 5 (3AA) of the Promotion Regulations provide for the manner of promotion to the State Forest Service Officials to the IFS. In terms of Regulation 5(3AA), the Selection Committee shall classify the Page 3 eligible officers as 'Outstanding', 'Very Good', 'Good' or 'Unfit', as the case may be, on the basis of overall relative assessment of their service records. Thus, the Annual Confidential Reports (hereinafter referred to as 'ACR(s)') of the last 5 years, immediately preceding the year of selection, amongst other documents, and records, pertaining to the service of the candidates, formed the foundation for evaluation of relative merit of the candidates for their ultimate categorization.
(vi) The ACR of the State Government officials, in Assam, is recorded in accordance with the provisions of the Assam Services (Confidential Rolls) Rules, 1990 (hereinafter referred to as 'the ACR Rules') framed under Article 309 of the Constitution of India, which ordain the procedure for writing and maintaining confidential report, review and acceptance thereof as well as consequential grading of the officer concerned. Rule 2(c) of the ACR Rules defines confidential report to be one as drawn up in terms with the procedure laid down in Rule 5 of the ACR Rules, which, in turn, contemplates that a confidential report, containing the appraisal of the performance, character, conduct and qualities of every Government employee, shall be written for each financial year, ordinarily, within, at the latest, two months of the close of the financial year. Rule 6 of the ACR Rules envisages that the confidential report shall be reviewed by the reviewing authority within one month of its being written. Sub-Rule (3) of Rule 6 makes the reviewing authority or accepting authority, as the case may be, competent to review the Page 4 confidential report if the authority concerned has seen the performance of the employee for, at least, 90 days during the period for which the report has been written. The confidential report, upon review, shall, under Rule 7 of the ACR Rules, be accepted with such modification as may be considered necessary and countersigned by the accepting authority concerned within one month of its review.
(vii) The meeting of the Selection Committee, constituted by the UPSC, was convened, on 08-12-2009, to consider the cases of the suitable eligible officers of the State Forest Service including the cases of the petitioner as well as 4th respondent and to recommend 3 officials of the State Forest Service for promotion to the Indian Forest Service. Neither the petitioner nor the 4th respondent was found suitable for promotion and their names were accordingly did not figure in the list of recommendees for promotion to the IFS.
(viii) Acting on the recommendations, so made, Ministry of Environment and Forest, Government of India, issued a notification, on 25-08-2010, promoting the said three officials to the Indian Forest Service, these three officials being, Sri Hem Kanta Talukdar, Sri Chitta Ranjan Borbora and Sri Modhusudhan Singha and these three persons were accordingly promoted to the Indian Forest Service and allocated the then Assam-Meghalaya Joint Cadre by notification, dated 31-08-2010, issued, in this regard, by the Director, Ministry of Environment and Forests, Government of India. All the three persons, who were so promoted, were Page 5 junior to the petitioner in the gradation list, which had been published, as already indicated above, on 25-08-2005.
2. In the month of April, 2010, the petitioner came to know from reliable source that his grading, in the ACR of 2002-03, was given 'Good' by the reporting authority, but the reviewing authority downgraded it to 'Average' without assigning any reason therefor. The petitioner also came to learn that in his ACR, pertaining to the period 30-09-2004 to 31- 03-2005, the reviewing officer had assigned him the grading 'Average', though all the attributes, recorded by the recording officer under various parameters, indicated that the petitioner could have very well been graded as 'Good'. This apart, the petitioner also came to learn that his performance, for the period from 01-04-2004 to 29-04-2004 and also for the period from 18-08-2005 to 05-01-2006, remained without being appraised inasmuch as the petitioner's ACRs for the said two periods, namely, 01-04-2004 to 29-04-2004 and 18.08.2005 to 05.01.2006, had neither been prepared nor necessary steps were taken, in this regard, by the reporting officer without any discernible reason.
3. The downgrading of the ACR of the petitioner, for the period 2002- 2003 from 'Good' to 'Average' by the accepting authority without assigning any reason therefor, was, in effect, an adverse entry, particularly, in the context of Regulation 5(3AA) of the Promotion Regulations, which mandates classification of eligible officers as Page 6 'Outstanding', 'Very Good', 'Good' or 'Unfit' on the basis of overall assessment of the relative merit of their service records.
4. In the face of the classification, which is required to be made by Regulation 5(3AA), any entry, which is below 'Outstanding', is an adverse entry and it will render a person 'Unfit' for promotion to the IFS. The said moderated entry, downgrading the petitioner's ACRs from 'Good' to 'Average', for the year 2002-03, was never communicated to the petitioner at any point of time, though such an entry was an adverse entry and ought to have been communicated to the petitioner in terms of Rule 10 of the Assam Services (Confidential Rolls) Rules, 1990.
5. The petitioner, then, filed, on 19-07-2010, a representation to the Commissioner and Secretary, Environment and Forests, Government of Assam, seeking review of his ACRs to ascertain if there was any down grading of any entry, which was adverse in nature and to rectify if there was any such adverse entry.
6. By his order, dated 16-09-2010, the Commissioner and Secretary, Environment and Forests, Government of Assam, upgraded the downgraded entry of the petitioner, for the period 2002-03 as well as for the period 30-09-2004 to 31-03-2005, from 'Average' to 'Good' and further directed the concerned recording officers to record the ACRs of the petitioner for the period, which was left unrecorded, i.e., for the periods from 01-04-2004 to 29-04-2004 and from 18-08-2005 to 05-01-2006.
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7. Pursuant to the order, so issued on 16-09-2010, the ACRs, for the periods from 01-04-2004 to 29-04-2004 and 18-08-2005 to 05-01-2006, which had not been appraised, was subsequently recorded and the petitioner was assigned the grading 'Very Good' and 'Outstanding' for the periods from 01-04-2004 to 29-04-2004 and from 18-08-2005 to 05-01- 2006, respectively.
8. Thereafter, the 4th respondent, too, preferred representation to the Commissioner and Secretary, Environment and Forests, Government of Assam, seeking upgradation of his downgraded entries for the period 2002-03, 2003-04, 2004-05, 2005-06 and 2006-07 and the entries, recorded therein, were, eventually, upgraded to 'Very Good' by an order, issued, in this regard.
9. Following the upgradation of entries of the petitioner, the Principal Secretary, Government of Assam, addressed a communication, on 21-05- 2001, to the UPSC requesting the UPSC to hold Review Selection Committee for reviewing the select list of the year 2008. Earlier thereto, the petitioner as well as the 4th respondent had moved the Central Administrative Tribunal, Guwahati Bench, seeking directions to be issued to the UPSC to hold meeting of the Review Selection Committee for the purpose of considering the cases of the petitioner and the 4th respondent for promotion to the IFS. The present petitioner's application gave rise to Original Application (in short, 'OA') No. 211 of 2011, which was disposed of by the learned Tribunal, on 26-09-2011, by directing the UPSC to hold Page 8 Review Selection Committee within a period of three months from the date of receipt of the order so passed by the learned Tribunal.
10. Pursuant to the order, so passed by the learned Tribunal, a Review Selection Committee was constituted to review the select list of the year 2008. The Review Selection Committee accordingly convened its meeting on 09-12-2011 and recommended the case of 4th respondent for promotion to the IFS for the year 2008. This recommendation was put to challenge by the present petitioner by making an application under Section 19 of the Central Administrative Tribunals Act, 1985, at Guwahati, which gave rise to Original Application (in short, 'OA') No. 64 of 2012. The said application has, however, been dismissed by order, dated 05-09-2012. Aggrieved by this order, dated 05-09-2012, dismissing his OA, the petitioner has made the present writ petition, under Article 226 of the Constitution of India, seeking issuance of appropriate directions.
11. We have heard Mr. N. Nath, learned counsel for the petitioner, and Mr. D. C. Chakraborty, learned Central Government counsel, appearing for respondent No. 2. We have also heard Mr. I. Hussain, learned Central Government counsel, appearing for respondent No. 1, Mr. P. S. Deka, learned Additional Senior Govt. Advocate, appearing for respondent No. 4, and Mr. D. K. Mishra, learned Senior counsel, appearing as amicus curiae.
12. The first contention, raised on behalf of the petitioner, is that there has been violation of Regulation 5(3AA) of the Indian Forest Service Page 9 (Appointment by Promotion) Regulations, 1966 (which is being referred to as the 'Promotion Regulations'), inasmuch as the Review Selection Committee, contends Mr. Nath, has not considered, in accordance with law, the petitioner's 5 years record of service immediately preceding the year of selection, i.e., the year 2008.
13. Resisting the submission, so made, the respondents contend, in tune with each other, that the Review Selection Committee did consider, in accordance with the statutory obligations and the 'guidelines' issued, in this regard, by the UPSC, i.e., respondent No.2, the records of the petitioner's service for the requisite periods.
14. Let us, now, determine the correctness of the rival submissions, which have been made before us.
15. While considering the question as to whether the Review Selection Committee has dealt with the petitioner's case and considered his ACR(s) for the requisite period of 5 years in accordance with the requirements of law, what needs to be noted, at the very outset, is that a Review Selection Committee has, nowhere, been defined under the Promotion Regulations or under the 'guidelines', which have been issued by the UPSC. However, Regulation 2(d) of the Promotion Regulations defines a 'Committee' to mean the Committee set up in accordance with Regulation 3. In order, therefore, to find out as to what a 'Committee' would, in the context of the Promotion Regulations, mean, one is necessarily required to travel to Regulation 3, which deals with the constitution of the Committee for Page 10 making recommendation from the State Forest Service (which is being referred to as, 'SFS'). The relevant provisions of Regulation 3 read as under:
"3. Constitution of the Committee to make selection-
(1) There shall be constituted for each of the Joint Cadres a Committee consisting of the Chairman of the Commission or where the Chairman is unable to attend, any other member of the Commission representing and the following other members namely:-
(a) For States other than Joint Cadres and Union Territories -
i) The Chief Secretary or Additional Chief Secretary;
ii) Secretary to the Government dealing with Forests;
iii) Principal Chief Conservator of Forests;
iv) A senior member of the Service not lower in rank
than a Conservator of Forests; and
v) A nominee of the Government of India not below
the rank of a Joint Secretary.
(aa) For Joint Cadre :-
i) Chief Secretaries to the Governments of the Constituent
States.
ii) Chief Conservator of Forests of the Constituent States.
ii) A nominee of the Government of India not below the rank of a Joint Secretary.
(b) For Union Territories -
(1) Joint Secretary in the Ministry of Home Affairs dealing with Union Territories;
(2) Inspector-General of Forests or Dy. Inspector General of Forests, (3) Chief Secretary of one of the Union Territories, (4) A Senior member of the Service not lower than in rank than a Conservator of Forests:
Provided that the Central Government may, if deemed necessary, after consultation with the State Government concerned alter the composition of the Committee.
(2) The Chairman or the member of the Commission shall preside at all meetings of the committee at which he is present.
Page 11 (3) The absence of a member, other than the Chairman or member of the commission, shall not invalidate the proceedings of the Committee if more than half the members of the Committee had attended its meetings."
16. From a bare reading of Regulation 3, it becomes clear that the Selection Committee, in order to consider cases of promotion from State Forest Service (i.e., 'SFS') to Indian Forest Service (i.e., 'IFS'), has to be constituted in terms of Regulation 3. As far as the procedures for selection and preparation of Select list is concerned, the same have been laid in Regulation 5. Mr. Nath, learned counsel, appearing for the petitioner, is correct in contending that a Review Selection Committee is nothing, but a Committee constituted under Regulation 3 of the Promotion Regulations.
17. What logically follows from the above discussion is that a Review Selection Committee, being a Committee constituted under Regulation 3, has no option but to follow (same as a Committee constituted under Regulation 3) the procedure laid down in Regulation 5 for the purpose of making selection and for preparing select list of officers of the SFS to be promoted to IFS. A Review Selection Committee, otherwise also, must proceed to take a decision as regards selection as if it is considering a given case afresh and for the first time. The support, sought to be received, in this regard, by Mr. Nath, learned counsel, from the case of Gurdial Singh Fiji vs. State of Punjab, reported in (1979) 2 SCC 368, and UPSC vs. Hiranyalal Dev (AIR 1988 SC 1069), is not misplaced inasmuch as the appellant, in Gurdial Singh Fiji's case (supra), was not considered Page 12 for promotion to IAS on the ground of adverse entry in his ACR(s) for the period 1966-67 against which the appellant's representation was pending disposal. The Supreme Court held the non-consideration of the appellant's representation as illegal and directed reconsideration of the appellant's case by taking into consideration the Govt. decision on his representation and his service records up to date. The relevant observations, made by the Supreme Court, in Gurdial Singh Fiji's case (supra), read as under:
19. In matters of this nature, particularly when the Select lists have to be prepared and reviewed from year to year, it becomes difficult to work out the logical consequences of holding that the case of any particular officer ought to be reconsidered. But, inevitably, for reasons mentioned above, the case of the appellant shall have to be considered afresh by the Selection Committee. How best to do it has to be left to its wise discretion in the matter of details, but in order to eliminate, insofar as one may, chances of yet another litigation we ought to indicate the broad frame-work within which the Committee should act and the preliminary steps which the Government must take in order to facilitate the Committee's task.
20. In the first place, the State Government shall consider and dispose of within two months from today the representations made by the appellant on January 23, 1969 and December 19, 1971 in regard to the adverse report in his confidential roll, for the year 1966-67. We are hopeful that the High Court will cooperate with the Government in the disposal of the representations. The Selection Committee will, within three months thereafter, decide whether the appellant should be included in the Select list as of May 11, 1973. That question has to be decided in accordance with Page 13 the relevant regulations by applying the test of merit and suitability cum-seniority. For deciding the question of appellant's merit and suitability, the Selection Committee will take into consideration the Government's decision on his representations and his service record up-to-date. If the Committee decides that he is not suitable for inclusion in the Select list and, should therefore, be superseded, it shall record its reasons for the proposed supersession. If, on the other hand, the Committee decides to include his name in the Select list, he will be entitled to rank in that list in accordance with his seniority as of May 11, 1973 unless, in the opinion of the Committee, there is a junior officer of exceptional merit and suitability who may be assigned a higher place. The Selection Committee will review the list for 1973 in accordance with these directions. The Union Public Service Commission will thereafter be consulted in accordance with the regulations. The Select list as finally approved by the Commission will form the Select list of the members of the State Civil Service.
(Emphasis is added)
18. The reference made by Mr. Nath, learned counsel for the petitioner, to the case of Hiranyalal Dev (supra) is also not misplaced wherein the appellant was not considered suitable for promotion to IPS due to some adverse entries, which were not communicated to him. Subsequently, the adverse entries were communicated and the same were expunged after considering the representation of the appellant. The relevant observations, appearing at para 5 and 9 of Hiranyalal Dev (supra), read as under:
Page 14 "5. It cannot be gainsaid that the Selection Committee could not have taken into consideration the adverse remarks entered in the records which had not been communicated to Respondent 1, and in any case could not have taken into consideration these remarks which were subsequently set aside by the State Government. The legal effect of the setting aside of the adverse remarks would be that the remarks must be treated as non-existent in the eye of law. The Selection Committee had, therefore, fallen in error in taking into account these adverse remarks which in the eye of law did not exist and which could not have been lawfully taken into consideration. However, the fact that the Selection Committee erred in this behalf does not necessarily mean that Respondent 1 should have been categorised or considered as "very good' vis-
a-vis others who were also in the field of choice. How to categorise in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee. The Tribunal could not make a conjecture as to what the Selection Committee would have done or to resort to conjecture as to the norms to be applied for this purpose. The proper order for the Tribunal to pass under the circumstances was to direct the Selection Committee to reconsider the merits of Respondent 1 vis-a-vis the official who was junior to him and whose name was Shri Sardar Pradeep Kar. Instead of doing so, the Tribunal has held that Respondent 1 should be deemed to have been included in the impugned select list prepared in 1983, at least in the place in the order of his seniority on the basis of the assessment of his C.C. Rolls, and has issued a direction to appoint Respondent 1 with effect from the date on which Shri Kar was appointed. The jurisdiction to make the selection vested in the Selection Committee. The Selection Committee had to make the selection by applying the same yardstick and norm as regards the rating to be given to the officials, who were in the field of choice by categorising the concerned officials as "outstanding", "very good", "good" etc. This function had also to be discharged by the Selection Committee by applying the same norm and tests and the Page 15 selection was also to be made by the Selection Committee as per the relevant rules. The powers to make selection were vested unto the Selection Committee under the relevant rules and the Tribunal could not have played the role which the Selection Committee had to play. The Tribunal could not have substituted itself in place of the Selection Committee and made the selection as if the Tribunal itself was exercising the powers of the Selection Committee, as has been done which is evident from the passage extracted from para 16 of the judgment:
"We have also gone through the C.C. Roll, of the two junior officers, Respondents 11 and 12 for the same period of five years including 1982-
83. We are of the definite view that there is absolutely no reason after expunction of the adverse remarks to hold that the applicant deserved a lower classification than these two respondents, who were junior to him."
The proper course to adopt was the course which was indicated by this Court in Gurdial Singh Fijji v. State of Punjab wherein this Court directed that the case of the appellant be considered afresh by the Selection Committee indicating the broad framework within which the Committee should act and the preliminary steps the Government should take in order to facilitate the Committee's task. In State of Mysore v. Syed Mahmood a dispute about promotion of certain officers had been raised. In writ petitions filed by the aggrieved officers the High Court passed orders directing the State Government to promote them from the respective dates on which respondents junior to them were promoted. The orders passed by the High Court were set aside by this Court and a direction was issued to the State Government to consider whether the said officers should have been promoted on the relevant dates. It was held:
"The promotions were irregularly made and they were, therefore, entitled to ask the State Government to reconsider their case. In the circumstances, the High Court could issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniority and fitness they should have been promoted on the relevant dates when officers Page 16 junior to them were promoted. Instead of issuing such a writ, the High Court wrongly issued writs directing the State Government to promote them with retrospective effect. The High Court ought not to have issued such writs without giving the State Government an opportunity in the first instance to consider their fitness for promotion in 1959."
Xxx xxx xxxx
9. In place of the order quoted hereinabove we substitute an order in the following terms viz.:
"The Selection Committee shall reconsider the impugned select list prepared in 1983 as if it was deciding the matter on the date of the selection on the footing that the adverse remarks made against Respondent 1 which were subsequently set aside did not exist in the records and consider the question as to whether he would have been appointed or Respondent 11 Shri Sardar Pradeep Kar would have been appointed on the basis of the categorization to which each of them was entitled having regard to the C.C. Rolls (ignoring the adverse remarks against Respondent 1 which were subsequently quashed) and pass appropriate orders in the light of the decision taken on this point. If Respondent 1's claim is accepted upon reconsideration in the light of the aforesaid exercise, the order of appointment should provide for his appointment with effect from the date on which he would have been appointed if he was selected when the original selection was made in 1983 and he should be given all the benefits. The Selection Committee shall complete its exercise within two months from the date of this order. There will be no order regarding costs."
(Emphasis added)
19. Situated thus, it becomes clear that the role of a Review Selection Committee is exactly the same as the Selection Committee and the Review Selection Committee shall be treated as Body constituted under Page 17 Regulation 3 for the purpose of carrying out the selection and making recommendations of the officers of the SFS to be promoted to IFS.
20. In the light of what has been discussed above, let us, now, revert to Regulation 5(3AA), which lays down as to how a Select Committee shall proceed with the consideration of a case for promotion from SFS to IFS. Regulation 5(3AA) reads, "The selection Committee shall classify the eligible officers as 'Outstanding', 'very good', 'good' or 'Unfit', as the case may be, on overall relative assessment of their service record."
21. A Selection Committee, be the Committee constituted for the first time to consider the cases of promotion or as a Committee, constituted for the purpose of review of a case, or a number of cases for promotion, is, in the light of Regulation 5(3AA), under statutory obligation to classify eligible officers into four categories, as indicated above, namely, 'Outstanding', 'very good', 'good' or 'Unfit', as the case may be, on overall relative assessment of their service records.
22. The term 'service records', we may hasten to point out, has not been defined in the Promotion Regulations. The UPSC has, therefore, issued 'guidelines', which prescribe what service records would mean and signify. The UPSC 'guidelines', issued in this regard, and contained in paragraph 2.3, read as follows:
"2.3 In accordance with Regulation 5(4) of the Promotion Regulations, the Selection Committee has to 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 Page 18 (i.e., ACRs and the documents kept therein by the competent authority). For making an overall relative assessment, the Committee will not depend solely on the grading recorded by the reporting/reviewing/accepting authority but will make its independent assessment of the service records of the eligible officers as per the procedure indicated below."
(Emphasis supplied)
23. Coupled with the above, paragraph 4.1 of the UPSC 'guidelines' read as under:
"4.1 The Selection Committee will go through the records of the eligible officers and make their assessment after deliberating on the quality of the officer as indicated in the various columns recorded by the Reporting/Reviewing officer/Accepting Authority in the ACRs for different years and then finally arrive at the classification to be assigned to each officer. The Selection Committee would take into account orders regarding appreciation for the meritorious work done by the concerned officers. Similarly it would also keep in view orders awarding penalties or any adverse remarks communicated to the officer, which, even after due consideration of his representation, have not been completely expunged."
(Emphasis supplied)
24. From what is embodied in paragraph 2.3 of the UPSC 'guidelines', it clearly transpires that service records will mean not only the ACR(s) of a candidate, but also the documents kept/maintained in connection therewith by the competent authority and that the Committee, constituted under Regulation 3, will not, in order to make overall relative assessment, depend solely on the grading recorded by the reporting or Page 19 the reviewing authority, but will make an independent assessment of the service records of the eligible officers as per the procedure indicated by the UPSC 'guidelines'.
25. In terms of the UPSC 'guidelines', the Selection Committee, or the Review Selection Committee, as the case may be, shall go through the service records of each of the eligible officer with special reference to the performance of the officers during the last 5 years immediately preceding the year for which the select list is required to be prepared, and, upon deliberations, make its own assessment of the candidate and record, in the assessment sheet, the gradings, which it considers, in the light of Regulation 5(3AA), as appropriate.
26. The UPSC's 'guidelines' will clearly indicate that the service records of each of the officers would have to be considered by the Selection Committee with, of course special reference to the performance of the officer during the last 5 years, immediately preceding the year for which the select list is required to be prepared, and deliberate on the quality of the officers and finally arrive at a classification to be assigned to each officer in order to ensure objectivity for the purpose of evaluation and assign accordingly any of the four gradings mentioned in Regulation 5(3AA), namely, 'Outstanding', 'very good', 'good' or 'Unfit'.
27. 'Deliberation', according to Oxford Advanced Learner's Dictionary, 6th Edition, means, 'the process of carefully considering' or 'discussing'. Chambers Twentieth Century Dictionary, 1979 Edition, defines Page 20 'deliberation' as 'act of deliberating, mature reflection'. According to Webster's Comprehensive Dictionary, Encyclopedic Edition, 'deliberation' means, 'thoughtfulness and care in deciding or acting'.
28. In the light of what the word 'deliberation' means and convey, it clearly follows, as rightly contended by Mr. Nath, learned counsel, that in order to satisfy the test of 'overall assessment', there must be a 'careful consideration' or careful discussion' on the quality of the officers concerned with regard the various attributes recorded in their respective ACR(s) and, as such, deliberation or discussion must precede the assigning of grading by the Selection Committee.
29. It is the admitted case of the UPSC that the petitioner was categorized as 'good' on the basis of overall relative assessment of his performance, as reflected under various columns of his ACR(s), the ACR(s) being for the period from 2002 to 2003 and 30.09.2004 to 31.03.2005 and, on the basis of the assessment of the petitioner's ACR(s) for the said period of barely 1 ½ years, the petitioner was not recommended for promotion.
30. Apart from the fact that the above averments of the UPSC, made in its affidavit, has not been disputed or traversed by any of the other respondents, including respondent No. 4, who is hereinafter referred to as the 'private respondent', the minutes of the meeting of the Review Selection Committee, constituted under Regulation 3, to review the select list of 2008 and consider, amongst others, the cases of the petitioner and Page 21 the private respondent is, in this regard, of great relevance. Para 3.1, which contains the minutes of the meeting of the Review Selection Committee, being extremely important, is reproduced below:
"3.1 The Committee were further informed that the Government of Assam have, in compliance with separate orders of the Hon'ble Tribunal and also based on their representations, forwarded the upgraded ACRs of
(i) Shri Arup Kumar Das for the year 2002-03 from 'Average' to 'good' and for the period from 30.09.2004 to 31.03.2005 from 'Average' to 'good'.
(ii) Shri R C Goswami for the period 2002-03, 2003-04, 2004-
05, 2005-06 and 2006-07 from 'good' to 'very good'.
(iii) Shri Amrit Kumar Das for the period from 14.11.2007 to 12.03.2008 from 'good' to 'very good'."
31. Close on the heels of what paragraph 3.1 of the minutes of the meeting of the Review Selection Committee, reproduced above, reflects, paragraph 5.1 and 5.2, which relate to the present petitioner, and paragraph 6.1 and 6.2, which relate to the private respondent, being relevant for correct appreciation of the manner in which the Review Selection Committee has dealt with the matter, are also reproduced below:
"Shri Arup Kumar Das 5.1 The Review Committee first considered the case of Sh. Arup Kumar Das. The Review Committee noted that the original Selection committee has graded Sh. Arup Kumar Das as 'good' on an over-all relative assessment of his service records.
Page 22 5.2 The Review Committee examined the records of Sh. Arup Kumar Das upto the year 2006-07 for the Select list of 2008 as the crucial date for reckoning the eligibility of officers is 01.01.2008. The Review Committee took into consideration the upgraded ACRs of Sh. Arup Kumar Das for the period mentioned in para 3.1 (i) above. On an overall assessment of his performance as reflected under various columns of the upgraded ACRs, the Review Committee graded Shri Arup Kumar Das as 'good'. On the basis of this assessment, the Review Committee did not recommend any change in the Select list of 2008 prepared on 08.12.2009 in respect of Sh. Arup Kumar Das.
Shri R. C. Goswami 6.1 The Review Committee next considered the case of Sh. R. C. Goswami. The Review Committee noted that the original Selection Committee has graded Sh. R. C. Goswami as "Good" on an over-all relative assessment of his service records.
6.2 The Review Committee examined the records of Sh. R. C. Goswami upto the year 2006-07 for the Select list of 2008 as the crucial date for reckoning the eligibility of officers is 01.01.2008. The Review Committee took into consideration the upgraded ACRs of Sh. R. C. Goswami for the period mentioned in para 3.1 (ii) above. On an overall assessment of his performance reflected under various columns of the upgraded ACRs, the Review Committee graded Shri R. C. Goswami as "Very Good". On the basis of this assessment, the Review Committee recommended his name for inclusion in the Select list of 2008 for promotion to the IFS of Assam Meghalaya Joint Cadre (Assam segment) and placed his name at Sl. No. 1A of the List prepared on 08.12.2009."
32. If the contents of paragraphs 5.1 and 5.2, which relate to the service records of the present petitioner, vis-à-vis paragraph 6.1 and 6.2, which relate to the service records of the private respondent, are considered Page 23 together in the light of what stands recorded in paragraph 3.1 (which we have already quoted above), it leaves no room for doubt that that, so far as the petitioner was concerned, what the Review Selection Committee had considered was merely his upgraded ACR(s) for the period 2002- 2003 and for the period from 30.09.2004 to 31.03.2005, i.e., for the period of 1 ½ years, whereby the downgrading of the petitioner's ACR from 'good' to 'Average' was upgraded and restored to 'good' from 'Average'. As against this, the ACR(s) of the private respondent was considered for the whole period of 5 years, namely, for the period from 2002 to 2003, 2003 to 2004, 2004 to 2005, 2005 to 2006 and 2006 to 2007 and, on the basis of all these five years of ACRs, he (private respondent) was graded 'very good' from 'good'.
33. While, thus, the private respondent's ACRs of all the 5 years, immediately preceding the year of selection, had been considered, the petitioner's ACR of only for the period of 1 ½ years, as indicated above, had been considered by the Review Selection Committee.
34. Situated thus, it is clear that the Review Selection Committee committed two errors, namely, (i) it omitted to notice the fact that it was under legal obligation to consider the ACRs of the petitioner as well as of the private respondent for the entire period of 5 years, including that part or portion of 5 years, where any change/changes, in the grading, was/were recorded in the ACRs and (ii) the Review Selection Committee completely ignored the fact that apart from upgradation of the ACRs of Page 24 the petitioner, for the said period of 1 ½ years (i.e., for the period from 2002 to 2003 and for the period from 30.09.2004 to 31.03.2005), the petitioner's ACRs, for the period from 01.04.2004 to 29.04.2004 and 18.08.2005 to 05.01.2006, had been subsequently upgraded, as already indicated above, by order, dated 16.09.2010, inasmuch as the performance of the petitioner, for the period from 01.04.2004 to 29.09.2004 and also for the period from 18.08.2005 to 05.01.2006 (which had gone unappraised), came to be recorded, pursuant to the order, dated 16.09.2010, passed by the Commissioner and Secretary, Environment and Forest, Government of Assam, and the petitioner was, pursuant to the order, dated 16.09.2010, assigned the grading 'very good' for the period from 01.04.2004 to 29.09.2004 and he (petitioner) was graded 'Outstanding' for the period from 18.08.2005 to 05.01.2006.
35. To put it a little differently, the Review Selection Committee considered, unlike the case of the private respondent, the petitioner's upgraded ACRs for the brief period of 1 ½ years (i.e., from 2002 to 2003 and 30.09.2004 to 31.03.2005), and did not consider the period, which had, initially, been left unappraised and was, subsequently, assigned the grading of 'very good' and 'Outstanding' pursuant to the order, dated 16.09.2010, aforementioned.
36. In short, the consideration of the petitioner's case by the Review Selection Committee suffers from infraction of Regulation 5(3AA) of the Promotion Regulations inasmuch as the Review Selection Committee has Page 25 not considered the entire service records of the petitioner anew for the requisite period of 5 years immediately preceding the year of selection; more so, when the Review Selection Committee has, it is obvious, not taken into account at all the entries in the ACR(s) of the petitioner for the earlier unappraised period from 01.04.2004 to 29.09.2004 and 18.08.2005 to 05.01.2006, and, thus, the consideration of the petitioner's case by the Review Selection Committee must be held to be in violation of the mandates of the Regulation 5(3AA) and cannot, therefore, be sustained.
37. To put it a little differently, the Review Selection Committee's appraisal of the case of the petitioner suffers from omission to consider the petitioner's service records for the requisite period of 5 years in its entirety inasmuch as the Review Selection Committee has considered only the petitioner's upgraded ACRs for the year 2002-2003 and for the period from 30.09.2004 to 31.03.2005, but the Review Selection Committee has omitted to consider the petitioner's subsequently appraised service records for the period from 01.04.2004 to 29.09.2004 and for the period from 18.08.2005 to 05.01.2006.
38. The learned Tribunal, therefore, fell in serious error, in the case at hand, in taking the view that the assessment of the petitioner's service record was properly done by the Review Selection Committee; whereas, it is glaringly noticeable that the Review Selection Committee did not do what it was assigned to do or obliged to do in terms of the Promotion Page 26 Regulations and in the light of the 'guidelines', issued, in this regard, by the UPSC.
39. Yet another ground on which the petitioner has impugned the recommendations of the private respondent by the Review Selection Committee and non-recommendation of his case for promotion by the said Committee, in the light of the decision reached by the learned Tribunal, is that during the period of 5 years immediately preceding the year of selection, the appropriate authority had not recorded the various entries in the ACRs of the petitioner. A chart, showing the authorities, who had acted in the capacity of the Reporting, Reviewing and the Accepting authorities, in the ACRs of the petitioner from the year 2002 to 2007, as embodied in the writ petition, is reproduced below:
YEAR REPORTING REVIEWING ACCEPTING
AUTHORITY AUTHORITY AUTHORITY
2002-03 CCF PCCF PRINCIPAL
SECRETARY
1.4.03 to --- COMMISSIONER
30.7.03 & SECRETARY
23.9.03 to CF CCF ---
31.3.04
1.4.04 to CF CCF ---
30.9.04
30.9.04 to CF CCF PCCF
31.3.05
1.4.05 to CCF PCCF COMMISSIONER
17.8.05 & SECRETARY
18.8.05 to CF CCF ---
31.3.06
2006-07 CF CCF PCCF
Page 27
40. A cautious reading of what have been reproduced above would show that the ACRs of the petitioner for the period 2002-2003 was written by the Chief Conservator of Forests, reviewed by the Principal Chief Conservator of Forests and accepted by the Principal Secretary, Department of Environment and Forests; whereas, the ACR, pertaining to the period 23.09.2003 to 31.03.2004, was written by Conservator of Forests, reviewed by Chief Conservator of Forests and accepted by the Commissioner & Secretary, and with regard to the petitioner's ACR for the period from 01.04.2005 to 17.08.2005, it was again the Chief Conservator of Forests, who had acted as the Reporting authority, the Reviewing and the Accepting authorities being Principal Chief Conservator of Forests and the Commissioner and Secretary, Department of Environment and Forests. However, for the period from 30.09.2004 to 31.03.2005, the Reporting authority was, once again, the Conservator of Forests, the Reviewing authority was the Chief Conservator of Forests and the Accepting authority was the Principal Chief Conservator of Forests.
41. The question, therefore, which falls for consideration, is: Whether, in the petitioner's case, the Conservator of Forests could have acted as the Reporting authority, or it was the Chief Conservator of Forest, who ought to have been the Reporting authority?
42. While considering the question, posed above, we may refer to Rule 2(f) of the Assam Services (Confidential Rolls) Rules, 1990 (hereinafter Page 28 referred to as the '1990 Rules'), which defines 'Reporting authority' as the authority, who was, during the period for which the confidential report is written, immediate superior to the employee and such other authority as may be specifically empowered, in this behalf, by the Government. Similarly, 'Reviewing authority' is defined by Rule 2(g) of the 1990 Rules to mean the authority, who was, during the period for which the confidential report is written, immediate superior to the Reporting authority and such other authority as may be specifically empowered, in this behalf, by the Government. Rule 2(a) of the 1990 Rules defines 'Accepting authority' as the authority, who was, during the period for which the confidential report is written, immediate superior to the Reviewing authority and such other authority as may be specifically empowered, in this behalf, by the Government.
43. The petitioner, as has been pointed out, is presently serving as Divisional Forest Officer (in short, 'DFO') and he, therefore, belongs to the cadre of Deputy Conservator of Forest (in short, 'DCF'). The immediate superior of a DCF is the Conservator of Forests (in short, 'CF') and, as such, only CF can initiate confidential reports of a DCF. Similarly, the immediate superior of CF is the Chief Conservator of Forest (in short, 'CCF') and the immediate superior of CCF is the Principal Chief Conservator of Forest (in short, 'PCCF'). Accordingly, only CCF and PCCF can act as the Reviewing and Accepting authority, respectively, in respect of a DCF.
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44. However, in the case at hand, the ACR(s) of the petitioner were reported/reviewed and accepted by authorities other than the authorities, who were empowered and authorized by the Rules to do so. Consequently, the ACR(s), prepared by such authorities, as indicated hereinbefore, can not, rightly contends Mr. Nath, learned counsel for the petitioner, form basis for making assessment of the merit of the petitioner.
45. In support of his contention that the ACR(s), in respect of a DFO can only be written by the CF, reviewed and accepted by CCF and PCCF, respectively, Mr. Nath has also placed reliance on the case of T N Godavarman vs. Union of India, reported in (2007) 15 SCC 273. The relevant observations, made by the Supreme Court, in T N Godavarman (supra), read as follows:
"22. For writing of the confidential reports, the Central Government has, under Section 3 of the All India Services Act, 1951, framed All India Services (Confidential Rolls) Rules, 1970. According to Rule 2(e), the "reporting authority" is defined as follows:
2. (e) 'reporting authority' means the authority who was, during the period for which the confidential report is written, immediately superior to the member of the service and such other authority as may be specifically empowered in this behalf by the Government;"
23. The "reviewing authority" is defined in Rule 2(f) as follows:
2. (f) 'reviewing authority' means the authority who was, during the period for which the confidential report is written, immediately Page 30 superior to the reporting authority and such other authority as may be specifically empowered in this behalf by the Government;"
24. It seems that Rule 2(e) had been interpreted by the State to mean that the confidential report of an officer could be written by a person who is superior to him and also by such other officer who may be specified in this behalf. In view of the latter portion of the said Rule 2(e), the State Government has authorised officers of service other than of the Forest Department to write the confidential reports. In this manner, in effect, the administrative control of officers belonging to the Forest Department is not within the Department itself.
25. The aforesaid Rule 2(e) came up for consideration before this Court in State of Haryana v. P.C. Wadhwa. While interpreting the said Rule 2(e), this Court at p. 1035 observed as follows: (SCC pp. 606-07, para 5)
5. In this connection, it may be pointed out that it is not disputed that the conjunction 'and' occurring in clauses (e), (f) and (a) should be read as 'or'. Under clause (e), the 'reporting authority' may be either immediately superior to the member of the service or such other authority as may be specifically empowered in this behalf by the Government. The expression 'immediately superior' obviously indicates that the reporting authority should be the immediate superior officer in the same service to which the member of the service belongs. The position is the same as in the cases of 'reviewing authority' and 'accepting authority'. So, under the first part of clause (e), the reporting authority of the respondent could be a person who is immediately superior to him in the police service."
26. It appears to us, and which is logical, that up to the officer of the rank of Additional Principal Chief Conservator of Forests the reporting authority has to be the immediately superior officer within the Forest Department. For example, Page 31 for the Assistant Conservator of Forests, the reporting authority can only be the Divisional Forest Officer and for him the reporting authority would be the Conservator of Forests for whom the reporting authority has to be the Chief Conservator of Forests and his reporting authority would be Additional Principal Chief Conservator of Forests and lastly his reporting authority would be the Principal Chief Conservator of Forests. Likewise the reviewing authority would also be the person within the same Department. It is only in case of the Principal Chief Conservator of Forests that the reporting authority will be a person other than the one belonging to the service because there is no one superior to the Principal Chief Conservator of Forests within the service. As far as he is concerned, the reporting authority would be a person who is familiar with the work of Principal Chief Conservator of Forests and that will be the person to whom he reports and who is superior to him in rank and hierarchy."
(Emphasis is added)
46. Mr. S. Sharma, learned counsel for the private respondent, has contended that the petitioner's ACR(s) for the period 2003-2004 was reviewed by PCCF and accepted by the Principal Secretary, because during the relevant period, the petitioner was in the Wild Life Wing of the Department; whereas the ACR, pertaining to the period from 30.09.2004 to 31.03.2005, was reviewed by CCF and accepted by PCCF, because during the period, in question, the petitioner had been working in the Research and Education Wing of the Department.
47. Controverting the above submissions, made on behalf of the private respondent, it has been submitted, on behalf of the petitioner, that the Page 32 various wings, such as, Wild Life, Territorial, Social Forestry, Research and Education, etc., are only wings of the Forest Department and the immediate superior of a DCF shall always be CF irrespective of any wing of the Department. A superior officer, in the context of a DCF, does not differ from wing to wing and, hence, the whole contention of the private respondent, raised, in this regard, has no foundation, erroneous and is liable to be rejected.
48. It has been further contended, on behalf of the petitioner, that the fact, that the contention of the private respondent has no foundation, falls flat in view of the fact that the ACR of the petitioner, for the period 01.04.2005 to 17.08.2005 (i.e., the period immediately succeeding 30.09.2004 - 31.03.2005), was reviewed by the PCCF and accepted by the Commissioner and Secretary in spite of the fact that during the said period, the petitioner had been still working in Research and Education wing of the Department concerned.
49. In the light of the 1990 Rules, the petitioner's ACR(s) were clearly not written by the appropriate authorities acting as Reporting authority, Reviewing authority and Accepting authority. When the petitioner's ACR(s) have been written by the authorities other than competent authorities, the assessment of the merit of the petitioner, the entries and the gradings, which had been given by the authorities not competent to act as the Reporting, Reviewing and Accepting authorities, were bad in law and ought not to have been considered, while considering the Page 33 petitioner's case for promotion. These aspects of the case appear to have escaped not only the notice of the Review Selection Committee, but also of the learned Tribunal. On the basis of the ACR(s) written by the authorities, who were not competent to writ the petitioner's ACR(s), question of consideration of a valid selection, for the purpose of promotion, from SFS to IFS would not arise.
50. It is further contended, on behalf of the petitioner, that the ACR(s) of the petitioner were not communicated to him, at any point of time by the Committee, which was contrary to the law laid down by the Supreme Court in Dev Dutt vs. Union of India, reported in (2008) 8 SCC 725. Relying upon the case of Dev Dutt (supra), Mr. Nath, learned counsel for the petitioner, correctly submits that, in terms of the decision, rendered in Dev Dutt's case (supra), all ACR(s) of the employees need to be communicated to the employee concerned, within a reasonable period of time, whether there is benchmark or not and non-communication of the same is arbitrary and violative of Article 14 of the Constitution of India. The relevant paragraphs of the decision of the Supreme Court, in Dev Dutt's case (supra), read as under:
"12. It has been held in Maneka Gandhi v. Union of India that arbitrariness violates Article 14 of the Constitution. In our opinion, the non-communication of an entry in the ACR of a public servant is arbitrary because it deprives the employee concerned from making a representation against it and praying for its upgradation. In our opinion, every entry in the annual confidential report of every employee under the State, whether he is in civil, judicial, police or other service (except the Page 34 military) must be communicated to him, so as to enable him to make a representation against it, because non-communication deprives the employee of the opportunity of making a representation against it which may affect his chances of being promoted (or get some other benefits). Moreover, the object of writing the confidential report and making entries in them is to give an opportunity to a public servant to improve his performance, vide State of U.P. v. Yamuna Shanker Misra. Hence such non-communication is, in our opinion, arbitrary and hence violative of Article 14 of the Constitution.
13. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a "good" or "average" or "fair" entry certainly has less chances of being selected than a person having a "very good" or "outstanding" entry.
17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways: (1) had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence, non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Page 35 Gandhi v. Union of India that arbitrariness violates Article 14 of the Constitution.
18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.
36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no rule/G.O. requiring communication of the entry, or even if there is a rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.
37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model Page 36 employer, and must act fairly towards its employees. Only then would good governance be possible.
41. In our opinion, non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.
(Emphasis is added)
51. A bare reading of the observations, made by the Supreme Court in the above quoted paragraphs, in Dev Dutt's case (supra), makes it clear that the ACR(s), which have not been communicated to a person concerned, can not be taken into consideration by any Selection Committee, while examining his/her case for promotion. However, the Supreme Court has laid down, in Dev Dutt's case (supra), that in the event of non-communication of the ACR(s) to the employee concerned for any reason, such ACR(s) are to be communicated to the employee concerned at the stage of consideration of his/her case for promotion enabling the employee concerned to make representation against the entry, which needs to be fairly considered following which his/her case needs to be reconsidered by the Review Selection Committee. The ratio, laid down by the Supreme Court, in Dev Dutt's case (supra), squarely applies to the case at hand inasmuch as the adverse entries, in the ACR(s) of the petitioner, were not communicated to the petitioner before Page 37 consideration of his case, for promotion, by the Review Selection Committee.
52. From the decision, in Dev Dutt's case (supra), it becomes abundantly clear that making of any effective representation by an employee requires communication of the entries, made in his/her ACR(s), which would include not only the gradings, assigned to the employee, but also the remarks made on various components of performance of the employee concerned and consideration of the grading, assigned to him, must precede submission of any representation, if made, by the employee concerned so as to enable the employee concerned make effective representation.
53. Though the learned Tribunal has proceeded on the premises that the petitioner had been communicated the entries of his ACR(s), the learned Tribunal, we find, has failed to notice that the entries, in some of the ACR(s), had been obtained by the petitioner on the basis of the application, made by the petitioner under the Right to Information Act, 2005, and the same had not been communicated to the petitioner by the authorities concerned. The petitioner's case, therefore, suffers from, in fact, infraction of the law laid down, and the directions given, in Dev Dutt's case (supra).
54. Clearly, therefore, when the petitioner made his representation, on 19.07.2010, seeking review of his ACR(s), he had no idea as to what had been made in his ACR(s) and this fact is clearly discernible if one cares to Page 38 read the petitioner's representation. The relevant portion of the petitioner's representation, dated 19.07.2010, read as follows:
"To, The Commissioner and Secretary to the Govt. of Assam, Environment and Forest Department, Dispur, Guwahati-6. Sub Thorough Review of my ACR's for the Financial years 2000-2001, 2001-2002, 2002-2003, 2003-2004 and 2005-2006. Ref. My earlier letter No. AKD/1/Confidential/7 dtd. 15/07/2010. Respected Sir, In continuation to my earlier letter No. referred above with reference to the above subject I have honour to request you kindly to review my ACR's for the period (2000-2001, 2001-2002, 2002-2003, 2003-2004 and 2005-2006) as I suspect that during the years the ACR's written by respective Recording/Reviewing officers sent to UPSC and MOEF was initiated in such a way that I should not be inducted into Indian Forest Service as the grades given was more or less as an adverse ACR. Because these years were crucial for the select list prepared by UPSC for the years 2005, 2006, 2007 and got myself deprived in every selection.
As referred above, since I did not have any access to the confidential Rolls prepared by the authorities I had presumed that everything recorded was with higher grades the good assessment, as I have neither been informed verbally or nor intimated in writing regarding any poor performance in any form for the years stated above also substantial evidence if there was any to improve my skills for getting better grades which was a systematic way of spoiling my career. But now I have realized that the ACRs prepared during the years referred above were written in casual and superficial and without proper weightage in upgraded form which led to debar me from selection to the Indian Forest Service.
Page 39 Therefore, I request you humbly to get my ACRs properly Reviewed and Rectified so that I may be considered to be included to the IFS selection and get natural justice from your end as I have still faith and confidence in your abilities so that I may continue with a better zeal in the remaining part of my service career.
Yours faithfully, s/d--
(A. K. Das), D.F.O, Govt. T.T.S. Plant Division Makum, Tinsukia"
(Emphasis is added)
55. As the communication of the entries in the ACR(s) is, in the light of the decision, in Dev Dutt's case (supra), sine qua non in order to enable the employee concerned make effective representation, it is clear that the petitioner did not have any idea, on the date of making of the representation, i.e., 19.07.2010, about the fact that the entries, made in his ACR(s), including the gradings awarded to him, were not adverse in nature inasmuch as any grading, assigned to an officer, in the light of Regulation 5(3AA), would be treated, in the light of the decision, in Dev Dutt's case (supra), as an adverse entry. In fact, suspecting that his ACR(s) had not been properly recorded, the petitioner had asked for the review thereof. As the entries had not been communicated to the petitioner before the petitioner had made the representation, the learned Tribunal ought to have held that the petitioner was denied the right to make effective representation against the various entries, made in his ACR(s), during the past 5 years, in question, and the petitioner was, therefore, seriously prejudiced.
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56. We consider it incumbent upon us to point out, with regard to the above, that the personal hearing, which had been afforded to the petitioner on his representation, dated 19.07.2010, aforementioned, did not cure the incurable defect of non-communication of the entries in the ACR(s) to the petitioner in terms of the decision in Dev Dutt's case (supra). It would be idle for the authority concerned to hear an employee if he is not communicated the entries made in his ACR(s).
57. In support of his submission that the decision, in Dev Dutt's case (supra), covers the case of the petitioner, Mr. N. Nath, learned counsel for the petitioner, contends that a judicial pronouncement, on an issue of law, is always retrospective in operation unless the decision itself makes the operation of the law, so pronounced, prospective. In fact, prospective laying down of a law is a device innovated by the Supreme Court to avoid reopening of settled issues and multiplicity of proceedings. In Dev Dutt's case (supra), the Supreme Court, in its own wisdom and discretion, did not make its operation prospective and, accordingly, the ratio, laid down in Dev Dutt's case (supra), could only be applied retrospectively. Mr. Nath, learned counsel, further contends, and rightly so, that even assuming that the law, laid down in Dev Dutt's case (supra), is prospective, the same would still apply to the present case inasmuch as Dev Dutt's case (supra) was decided on 12th May, 2008, and the Selection Committee, in the case at hand, met on 08.12.2009 and the Review Selection Committee met on 09.12.2011.
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58. Controverting the finding of the learned Tribunal, that the ACR(s) had been duly communicated to the petitioner and that on the basis of such communicated ACR(s), the petitioner had filed representation, dated 19.07.2010, Mr. Nath, learned counsel for the petitioner, has also pointed out, with great justification, that this finding of the learned Tribunal is wholly erroneous inasmuch as the petitioner's representation itself shows that he was not privy to his ACR(s) at the time of filing of his representation and that the finding of the learned Tribunal seems to have been influenced by the fact that the petitioner had annexed a few ACR(s) to his representation in order to substantiate his claims, but the learned Tribunal ought to have taken note of the fact that the petitioner had obtained the copies of his ACR(s) under the Right To Information Act, 2005. Further-more, the fact that the petitioner came to know about the downgrading of the entry, in his ACR(s), from 'good' to 'Average' for the period 2002-2003 in April, 2010, only is, in itself, a testimony of the fact that the ACR(s) of the petitioner had never been communicated to him.
59. While considering the rival submissions with regard to the non- communication of the entries in the ACR(s) to the petitioner, it is noteworthy that the respondents/authorities concerned did neither file any written statement before the learned Tribunal nor have they filed any affidavit, before this Court, controverting the contentions of the petitioner regarding non-communication of the entries in his ACR(s) to him.
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60. We deem it apposite to point out, at this juncture, that the scope of judicial review is limited in matters of selection. However, it is incumbent and obligatory, on the Courts and the Tribunals, to interfere, when the process of assessment and recommendation is vitiated by mala fide, or bias, or violation of the statutory rules and regulations, or when the process of assessment suffers from arbitrariness or from error apparent on the face of the record. Reference may be made, in this regard, to the case of M V Thimmaiah vs. UPSC & Ors, reported in (2008) 2 SCC 119, wherein the Supreme Court held as under:
"21. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion."
(Emphasis is added)
61. We may also refer to the case of Union of India vs. A K Narula, reported in (2007) 11 SCC 10, wherein the Supreme Court held, in paragraph 15, as under:
"15. The 'guidelines' give a certain amount of play in the joints to DPC by providing that it need not be guided by the overall grading recorded in CRs, but may make its own assessment on the basis of the entries in CRs. DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and Page 43 norms. It is only when the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness, that the selection calls for interference. Where DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by DPC, the court will not interfere (vide SBI v. Mohd. Mynuddin, UPSC v. Hiranyalal Dev and Badrinath v. Govt. of T.N.). The Review DPC reconsidered the matter and has given detailed reasons as to why the case of the respondent was not similar to that of R.S. Virk. If in those circumstances, the Review DPC decided not to change the grading of the respondent for the period 1-4-1987 to 31-3-1988 from "good" to "very good", the overall grading of the respondent continued to remain as "good". There was no question of moving him from the block of officers with the overall rating of "good" to the block of officers with the overall rating of "very good" and promoting him with reference to DPC dated 13-6-1990. In the absence of any allegation of mala fide or bias against DPC and in the absence of any arbitrariness in the manner in which assessment has been made, the High Court was not justified in directing that the benefit of upgrading be given to the respondent, as was done in the case of R.S. Virk."
(Emphasis is added)
62. When considered as a whole, what emerges from the above discussion is that fairness is an essential ingredient of all administrative actions including a selection process. We may refer, in this regard, to the case of National Institute of Mental Health and Neuro Sciences -vs- Dr. K. Kalyana Raman and Others, reported in (1992) Supp (2) SCC 481, wherein it has been held that the function, performed by a Selection Committee, is administrative in nature.
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63. In the present case, therefore, it is imperative that the review selection be fair and fairness demands that the Review Selection Committee follows the procedure in letter and spirit as laid down in Regulation 5(3AA) of the Promotion Regulations. Strangely enough, however, the Review Selection Committee acted, in the present case, mechanically without even realizing that it was not considering, contrary to the requirements of Regulation 5 (3AA), the petitioner's ACRs of 5 years immediately preceding the year of selection. The Selection Committee also failed to note that the petitioner's ACR(s) had been written substantially by persons, who were not competent to act as Reporting, Reviewing and/or Accepting authorities. The Review Selection Committee further did not question and/or try to find out if the adverse entries, in the ACR(s) of the petitioner, (in the light of the decision, in Dev Dutt's case (supra), which, on the date of consideration of the petitioner's case by the Review Selection Committee, held the field), had been communicated to the petitioner or not. Even the learned Tribunal has completely failed to note that the petitioner had not been communicated, contrary to the decision, in Dev Dutt's case (supra), the entries in the ACR(s) of the requisite period of 5 years in order to enable him to make effective representation against the entries, which were injurious to the consideration of the petitioner's case for promotion.
64. Because of what have been discussed and pointed out above, we have no hesitation in holding that the impugned review, which the Page 45 Review Selection Committee had conducted, was contrary to law and all the issues, raised by the petitioner and discussed by us above, need to be addressed by the State respondents, in general, and the UPSC, in particular.
65. Before, however, we close the discussion on the case, which the petitioner has set up, and issue necessary direction(s), we need to point out that in the light of the amendments, which the Indian Forest Service (Appointment by Promotion) Regulations, 1966, (which we have been referring to as the Promotion Regulations), underwent by Notification, dated 20.04.1966, the 'guidelines', which have been issued by the UPSC and which have been the subject of discussion in this writ petition, need a review by the UPSC, particularly, with regard to the system of 'interpolation' of the names in the select list after a review takes place.
66. In order to make explicit what have been indicated above, we must reiterate that the Promotion Regulations provide for appointment of members of the State Forest Service to the Indian Forest Service by promotion. Regulation 5 of the said Regulations provides for preparation of a list of suitable officers. While Regulation 5(2) provides for zone of consideration and eligibility of the members of the State Forest Service, Regulation 5(3-AA) and Regulation 5(4) provide for the relative assessment of merit and preparation of merit wise list respectively. Regulation 5(3AA) and Regulation 5(4) being relevant, are reproduced below:
Page 46 "5. Preparation of a list of suitable officers :-
(1) *** *** ***
*** *** ***
(2) *** *** ***
*** *** ***
3(A) *** *** ***
*** *** ***
3(AA) The Selection Committee shall classify the eligible officers
as 'Outstanding', 'good', 'very good' or 'Unfit' , as the case may be, on all relative assessment of their service records.
(4) 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 the names inter-se within each category shall be in the order of their seniority in the State Forest Service. Provided that the name of an 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 an din 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 details of 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.
Page 47
(5) Omitted."
(Emphasis added)
67. A careful perusal of the Regulations reveals that Regulation 5(2), prior to its amendment by Notification No. 11039/2/76 AIS (I)-G, dated 20.04.1976, provided that merit and suitability in all respect with due regard to seniority shall be the criterion for the selection to the Indian Forest Service. The identical unamended Regulations of the Indian Administrative Services (Appointment by Promotion) Regulations, 1955, as quoted in paragraph 5 of the decision rendered in Union of India versus M. L. Kapoor, reported in (1973) 2 SCC 836, are reproduced below:
"5. *** *** ***
5. Preparation of a list of suitable officers.--(1) The Committee shall prepare a list of such members of the State Civil Service as satisfy the condition specified in Regulation 4 and as are held by the Committee to be suitable for promotion to the service. The number of members of the State Civil Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of the preparation of the list in the posts available for them under Rule 9 of the Recruitment Rules or 10 per cent of the senior duty posts borne on the cadre of the State or group of States whichever is greater:
Provided that, in the year ending on 31st December, 1969, the maximum limit, imposed by this sub-regulation, may be exceeded to such extent as may be determined by the Central Government in consultation with the State Government concerned.
(2) The selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority. (3) The names of the officers included in the list shall be arranged in order of seniority in the State Civil Service:
Page 48 Provided that any junior officer who in the opinion of the Committee is of exceptional merit and suitability may be assigned a place in the list higher than that of officers senior to him.
......................................................"
(Emphasis is added)
68. The decision, in M.L. Kapoor's case (supra), shows that according to the un-amended Regulation 5 of the Indian Administrative Service (Appointment by Promotion) Regulation, 1955, promotion ought to have been, ordinarily, in terms of seniority unless any junior officer, in the opinion of the Selection Committee, constituted by the UPSC, was found to be of exceptional merit and suitability inasmuch as such a junior officer, on the basis of his exceptional merit and suitability, could be placed, rather, ought to have been placed, in the select list, at a position higher than that of an officer, who might have been senior to the junior officer concerned.
69. It is pointed out by Mr. D.K. Mishra, learned Amicus Curiae, that the expression 'merit cum suitability with due regard to seniority', was considered by a learned Single Judge of this Court in Ramen Ch. Kalita Vs. State of Assam, reported in 2003 (3) GLT 369. The learned Single Judge, relying on the decision, rendered in M.L. Kapoor (supra), observed and held, at paragraph 10, as follows:
" ( 10 ) In the light of the above discussions, the parameters applied while making the impugned selection, do not appear to conform to the principle of merit and suitability with due regard to seniority as prescribed by the rules in force. The correct meaning of the expression, "merit and suitability with due regard to the seniority", having regard to the context Page 49 of the Rules in force and keeping in mind the earlier Rules holding the field, would be that though the criteria of merit and suitability with due regard to seniority is essentially a merit based criterion, seniority cannot altogether be ignored and has to be considered parallely along with merit while determining the eligibility of a candidate for his inclusion in the select list. Though it would not be the duty of the court to lay down the exact modalities to cover selection by application of said criteria, it may be apposite to observe that out of the total marks earmarked for assessment, say out of 100 marks, a particular percentage can be assigned to merit and the remaining percentage to seniority. The percentage prescribed for merit must necessarily be higher than the percentage prescribed for seniority, as this court has already held that the expression in question convey primarily a merit based assessment. What marks should be given to seniority can also be worked out by taking into account each year of completed service and on that basis the necessary fusion between merit and seniority can be reached. Having reached the aforesaid conclusion, this court cannot but hold that the parameters applied in the selection on 23.7. 2002 do not conform to what was required to be followed by applying the principle of "merit and suitability with due regard to the seniority". The impugned selection and the consequential promotion order dated 19. 9. 2002 therefore, will have to be set aside, which I hereby do."
(Emphasis is added)
70. It is submitted by the learned Amicus Curiae, with great justification, that Sarat Kumar Dash v. Biswajit Patnaik, reported in 1995 Suppl. (1) SCC 434, was not placed before the learned Single Judge in Ramen Ch. Kalita (supra). In the case of Sarat Kumar Dash (supra), the expression 'merit cum suitability with due regard to seniority' fell for consideration. The argument put forward by the counsel for the appellant Page 50 was accepted by the Supreme Court, in Sarat Kumar Dash (supra), that even in case of merit cum suitability with due regard to seniority, seniority has no role to play, if the junior is more meritorious. The relevant portion of the decision, in Sarat Kumar Dash (supra), runs as under:
"5. It is contended by Shri P.P. Rao, the learned Senior Counsel for the appellants that the Tribunal has committed grievous error in placing reliance on the decision of this Court in Union of India v. Mohan Lal Capoor. Therein, unamended Rule 5(2) of the statutory rules provides that in case of supersession of the officer of the police service of the State, the PSC was required to record reasons. Under those circumstances, this Court has directed that recording of reasons was necessary. He further contends that in the judgment itself, this Court held that in case of "merit-cum-suitability" with due regard to seniority, the principle of seniority has no role to play and the ratio therein was not properly understood by the Tribunal. We find force in the contention.
6. It is seen that the Government, in the absence of statutory rules, have applied, by administrative order, the principle of "merit-cum-suitability with due regard to seniority". It is settled law that in case of promotion to the posts of higher cadre, it has always been the settled criteria applied by the Governments is "merit-cum- suitability with due regard to seniority" or "merit and ability" but not 'seniority' or "seniority-cum-suitability". In fact, this question was considered by PSC, as stated earlier, before its evaluation of the respective merits. They secured the rules in the comparable services of the State where the principle of "merit-cum-suitability with due regard to seniority" is the statutory rule and thereby, the PSC had accepted the recommendation of the Government to apply the above rule to adjudge the relative merits of the candidates and in fact they did so apply.
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7. In Kapoor case, this Court has stated with regard to the principle thus:
(SCC p. 856, para 37) "[W]hen Regulation 5(2) says that the selection for inclusion in the list shall be based on merit and suitability in all respects with due regard to seniority, what it means is that for inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play only a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale. But, to say, as the High Court has done, that seniority is the determining factor and that it is only if the senior is found unfit that the junior can be thought of for inclusion in the list is, with respect, not a correct reading of Regulation 5(2). I do not know what the High Court would have said had Regulation 5(2) said: "Selection for inclusion in the select list shall be based on seniority with due regard to merit and suitability". Would it have said that the interpretation to be put upon the hypothetical sub- regulation (2) is the same as it put upon the actual sub-regulation?
8. In case of merit-cum-suitability, the seniority should have no role to play when the candidates were found to be meritorious and suitable for higher posts. Even a junior most man may steal a march over his seniors and jump the queue for accelerated promotion. This principle inculcates dedicated service, and accelerates ability and encourages merit to improve excellence. The seniority would have its due place only where the merit and ability are approximately equal or where it is not possible to assess inter se merit and the suitability of two equally eligible competing candidates who come very close in the order of merit and ability. Under those circumstances, the seniority will play its due role and calls it in aid for consideration. But in case where the Page 52 relative merit and suitability or ability have been considered and evaluated, and found to be superior, then the seniority has no role to play.
In our view the PSC has evolved correct procedure in grading the officers and the marks have been awarded according to the grading. It is seen that the four officers have come in the grading of 'B'. In consequence, the PSC had adopted the seniority of the appellants and Panda in the lower cadre in recommending their cases for appointment in the order of merit."
(Emphasis is added)
71. What further follows from the above discussion is that contrary to what has been decided in Ramen Ch. Kalita (supra), when determination of relative assessment of merit of the aspiring candidates is sine qua non for selection, the seniority shall have a role only when the merit is equal or else, seniority will not permit promotion of a senior, who is less meritorious than his junior.
72. When we revert to the Promotion Regulations, particularly, Regulations 5(3AA) and 5(4), what clearly surfaces is that having classified eligible officers of the State Forest Service as 'Outstanding, 'Very Good' or Good', in terms of the provisions of Promotion Regulation 3(AA), the Selection Committee, since after the amendments of 1976, is duty bound to prepare a select list in terms of Regulation 5(4), which lays down to the effect that keeping in view the requirement of number of names, the Selection Committee shall, first, include, in the select list, the names of those officers, who had been finally classified as 'Outstanding' and, then, select list shall contain the name of those, who may have been classified as 'Very Good' and, thereafter, from amongst Page 53 those similarly classified as Good have to be included in terms of their inter se seniority in the State Forest Service.
73. Thus, Regulation 5(4) makes it abundantly clear that when a junior officer of a State Forest Service is classified as 'Outstanding', he will, while receiving promotion to the Indian Forest Service, supersede his senior if his senior happens to be classified as 'Very Good' or 'Good'. To put it crisply and in precise terms, Regulation 5 makes it the duty of the UPSC to ensure that promotion from the State Forest Service to the Indian Forest Service is based on merit alone unless merit of the senior and junior stand on the same footing, for, the senior, in such a case, would retain his seniority in the Indian Forest Service; but, in a given case, when a junior is found to be more meritorious than his senior, then, the junior shall steal march over his senior.
74. What is, now, necessary to note is that Regulation 5 (1) of the Promotion Regulations provides for preparation of a list of suitable officers requiring the Central Government to decide, in consultation with the State Government concerned, the number of members of the State Forest Service to be included in the select list with a rider that such numbers shall not exceed the number of substantive vacancies as on the 1st day of January of the year on which the meeting is held.
75. Regulation 5(2) of the Promotion Regulations provides for zone of consideration. According to Regulation 5(2), the number of the members of the State Forest Service to be considered for promotion shall be three Page 54 times the number of vacancies determined under Regulation 5 (1). Normally, the zone of consideration is meant for the purpose of giving a choice of better officers for promotion and it is for this reason that the selection is based on merit by classifying the officers into the categories of 'Outstanding", 'Very Good' and 'Good' on the basis of comparative assessment of their inter se merit. When a Review Selection Committee is held, for the reason that an adverse remark has been set aside by the Court in respect of the concerned officer or the downgrading of an officer's ACRs has been found to be illegal and other similar circumstances, the Review Selection Committee must consider afresh the case of such officer alongwith the cases of all other already promoted officers, with reference to the date on which the cases of other officers were considered, because there may be a case, wherein as a result of setting aside the adverse entry or the downgrading of the ACR, an officer may displace or push down another officer to occupy the latter's place in the merit list and if such a situation arises, the last person, in the final select list, shall have to make way for the more meritorious officer inasmuch as the list of suitable officers, as contemplated by Regulation 5 (1), cannot exceed the number of substantive vacancies of a given calendar year.
76. Logically speaking, therefore, on review, promoting an officer to the Indian Forest Service (who, upon review, is found fit to be promoted to the Indian Forest Service from State Forest Service) cannot be allowed Page 55 to usurp or fill up the future vacancies of the next year. The 'guidelines', issued by the UPSC, if found contrary to the scheme of promotion so envisaged by the Promotion Regulations, cannot bear scrutiny of law.
77. The UPSC has issued 'guidelines' for preparation of the list of suitable officers by Selection Committee for promotion to the Indian Forest Service. Though the said 'guidelines' are not under challenge, it is clear that the 'guidelines', for review, are not in conformity with the Promotion Regulations. For example, it has been provided, in the said 'guidelines', at paragraph 9, as follows:
"9...... 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."
78. The above 'guidelines' place the State Government in the shoes of the Selection Committee to decide whether material changes have, or have not, occurred in the ACR following its review by removing the illegalities, though it is essentially for the Review Selection Committee to examine the reviewed ACR of the officer concerned and, then, grade such an officer as 'Outstanding', 'Very Good' or 'Good' or 'Unfit' as has been provided by Regulation 5(4) of the Promotion Regulations.
79. The UPSC's 'guidelines' further provide, in paragraph H.10, for "Interpolation of names in the select list after review". We have Page 56 already pointed out that appointment by promotion, in terms of the Promotion Regulations, is based on merit inasmuch as the Selection Committee is required, under the Promotion Regulations, to categorize the officers as 'Outstanding', 'Very Good' and 'Good' and, thereafter, to prepare merit list in the manner prescribed under Regulation 5(4), which we have already discussed above.
80. If an occasion, therefore, arises for holding a Review Selection Committee and, upon review, the officer is classified as 'Outstanding' or 'Very Good' and if he is required to be accommodated in the list of promotion, which may have been prepared for a given calendar year, the officer shall have to be placed at an appropriate place according to his merit in the select list, which already existed. The effect of placement of such an officer, at an appropriate place, in the select list, will have cascading effect of pushing down the candidates in the select list and, obviously, the candidate, having the least merit, at the end of the list, will have to make way for better candidate.
81. Hence, there is no question of exceeding, by way of interpolation, statutory limit of the size of the select list prepared under the Regulation 5(1) of the Promotion Regulations and, consequently, there is no room for doubt that there can be any interpolation of the names in the select list after review, for, the select list would, otherwise, exceed the number of substantive vacancies, which might have occurred in a given year. However, as the UPSC guidelines, with regard to interpolation of names in Page 57 the select list after review, are not under challenge, in the present writ petition, we refrain from interfering with the said guidelines making it clear that it is, nonetheless, duty of the UPSC to ensure that their guidelines are in tune with the amended provisions of the Promotion Regulations.
82. In the result and for the reasons discussed above, this writ petition succeeds. The impugned order, dated 05.09.2012, passed by the learned Tribunal, the recommendations made by the Review Selection Committee, in its meeting, dated 09.12.2011, as well as the promotion of respondent No. 4 to the Indian Forest Service are hereby set aside. Respondent No. 2 is hereby directed to hold a meeting of the Review Selection Committee to consider the petitioner's case for promotion to the Indian Forest Service on the basis of all the relevant ACRs of the petitioner vis-à-vis all the relevant ACRs of the respondent No. 4.
83. With the above observations and directions, this writ petition stands disposed of.
84. No order as to costs.
JUDGE JUDGE Dutt/rk Page 58 Page 59