Central Administrative Tribunal - Delhi
Hon Ble Shri Ashok Kumar vs The Secretary on 28 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.3526 OF 2011 New Delhi, this the 28th day of February, 2014 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER . K.C.Aggarwal, s/o late Shri L.N.Agarwal, aged about 57 years, R/o C-118, East of Kailash, 2nd Floor, New Delhi 110065 Applicant (By Advocate: Shri A.K.Behera) Vrs. Union of India, through: 1. The Secretary, Ministry of Home Affairs, North Block, New Delhi 110 001. 2. Union Public Service Commission through its Secretary, Dholpur House, Shahjahan Road, New Delhi 110001. 3. Secretary, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, North Block, New Delhi 110 001 Respondents (By Advocates: Shri Rajeev Kumar for R-1 and Shri D.S.Mahendru for R-2) .. ORDER Raj Vir Sharma, Member(J):
This Original Application was dismissed in limine by the Tribunal, vide order dated 30.9.2011. In W.P. ( C) No.8380 of 2011 filed by the applicant, the Honble High Court of Delhi, vide order dated 24.7.2012, disposing of the writ petition, set aside the Tribunals order dated 30.9.2011 and remitted the matter back requiring the Tribunal to consider the Original Application after hearing the submissions on behalf of all the parties. This is how the Original Application is presently being adjudicated by the Tribunal.
2. In this Original Application, the applicant prayed for the following relief:
(i) Call for the records of this case;
(ii) Quash & set aside the assessment of the applicant as Good in the Selection Committee meeting held on 07/07/2010 as well as in the reconvened meeting held on 28/12/2010;
Direct the respondents to re-assess the applicant in a just and reasonable manner based on his ACRs as aforementioned within a time bound manner.
Direct the respondent to give all consequential benefits of prayer (ii) and (iii) above including payment of arrears of pay and allowances in the Higher Grade to the applicant from the date his junior Shri K.K.Jindal was promoted/appointed in IAS;
Direct the respondent to pay the cost of litigation to the applicant;
Pass any other order or direction which this Honble Tribunal thinks fit and proper in the facts and circumstances of the case.
3. Brief facts of the applicants case run thus: The applicant joined Delhi, Andaman Nicober Island Civil Services (DANICS) in the year 1982 and was serving to the full satisfaction of his superior officers. At no point of time in his career, he was ever communicated with any adverse remark or below benchmark grading in his ACRs. The next promotional/induction avenue available to the applicant was to the Indian Administrative Service (IAS). The applicant was within the zone of consideration for the 4 vacancies of the year 2008 (later referred to as vacancies of the year 2007-A in terms of Praveen Kumar case) of the UT segment. The name of the applicant was at Sl.No.3 in the zone of consideration. The Selection Committee met on 07.07.2010. The ACRs of the applicant and others, who were in the zone of consideration, were placed before the Selection Committee. The applicants ACRs for the years 2001-02 to 2006-07 were placed before the Selection Committee. Except ACRs, no other materials were placed before the Selection Committee. The ACR dossiers of the applicant for the years 2001-02 to 2006-07 contained the overall grading as follows:
2006-07 : Very Good 2005-06 : Very Good 2004-05 : Very Good 2003-04 : Very Good 2002-03 : Very Good 2001-02 : Outstanding In spite of the aforesaid grading, the Selection Committee assessed the applicant as Good. The minutes of the meeting of the Selection Committee (Annexure A-3) did not contain any reason for assessing him as Good. Consequent upon dismissal of SLP filed against the judgment dated 01.02.2010 of the Honble Punjab & Haryana High Court in Praveen Kumars case in CWP No. 15798 of 2009, the name of Mr.Rajesh Somaal was included in the zone of Consideration, and the meeting of the Selection Committee was reconvened on 28.12.2010. The minutes of the said reconvened meeting (Annexure A-4) also disclosed that the Selection Committee assessed the applicant as Good without assigning any reason. Finally, the notification dated 28.4.2011 (Annexure A/1) was issued by respondent no.1 whereby Select List 2007-A containing the names of Shri V.C.Pandey, Shri Rajesh Somaal, Shri K.J.R.Burman and Shri A.S.Dagar, and Select List-2008 containing the names of Shri K.K.Jindal, Shri Rajiv Kale, and Smt.Achla Singh for appointment by way of promotion to IAS were notified. It is stated by the applicant that Shri K.K.Jindal, who was included in Select List-2008, was junior to the applicant. It is also stated by the applicant that Shri A.S.Dagar (Sl.No.4 of Select List-2007-A) and Shri Rajiv Kale and Smt.Achla Singh (Sl.Nos.2 and 3 of Select List-2008) declined promotion and, resultantly, there remained three vacancies, against which he could be promoted without disturbing the person junior to him who was promoted/inducted into IAS, and therefore, it was not necessary to implead the person junior to the applicant.
4. In the counter reply filed by respondent no.1, it is stated that the Selection Committee is not bound by the grading done by the Department. In every case of assessment of suitability of an officer for promotion by the method of selection, the primary inputs are always the ACRs. The Selection Committee, while deliberating on the attributes mentioned in the ACRs, is free to make its own independent assessment. According to respondent no.1, it is incorrect to contend that the Selection Committee was obliged to assess the applicant on the basis of the grading awarded by the Department. It is also stated by respondent no.1 that the assessment made by the Selection Committee was neither perverse nor arbitrary. It is the contention of respondent no.1 that reasons are not required to be recorded by the Selection Committee while assessing and grading the officers in the zone of consideration. In support of its contentions, respondent no.1 has relied on the decisions of the Honble Supreme Court in R.S.Dass v. Union of India, 1986 Suppl.SCC 617:1987) 2 ATC 628; and National Institute of Mental Health & Neuro Sciences v. Dr.K.Kalyana Raman and others, 1992 Suppl.(2) SCC 481.
5. Respondent no.2 has filed a separate counter reply resisting the claim made by the applicant. It is stated by respondent no.2 that for the purpose of making selection for promotion of State Civil Service officers to IAS, the service records of the officers in the zone of consideration are considered by the Selection Committee. These service records comprise of (i) ACR dossiers of the concerned officers, which are maintained in accordance with the relevant rules of the State Government; (ii) Seniority List of State Civil Service Officers; (iii) Eligibility List of State Civil Service officers; (iv) Integrity Certificate of the eligible officers, either granting or withholding the same; (v) Certificates regarding communication of Adverse Remarks; and (vi)Certificates regarding pending disciplinary/ criminal proceedings/ penalties, etc.. The ACRs are the basic inputs in assessing the suitability of the eligible officers. The Selection Committee does not merely go by the overall grading recorded in the ACRs. The members of the Committee deliberate 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, after a detailed mutual deliberation and discussion, finally arrive at a classification assigned to each officer. While doing so, the Selection Committee also reviews and determines the overall grading recorded in the ACRs to ensure that the overall grading in the ACRs is not inconsistent with the grading/remarks under various specific parameters or attributes. The Selection Committee also takes into account orders regarding appreciation for the meritorious work done by the concerned officers and also keeps in view the orders awarding penalties or any adverse remarks duly communicated to the officer, which, even after due consideration of his representation by suitable forum, are not expunged. In view of this, the contention of the applicant that the Selection Committee considers only the ACR dossiers is denied by respondent no.2, as being baseless. Regulation 5(4) of the IAS (Appointment by Promotion) Regulations, only requires the Selection Committee to classify the eligible officers as Outstanding, Very Good, Good and Unfit, as the case may be, on an overall relative assessment of their service records. It is submitted by respondent no.2 that the Selection Committee is not required under the IAS (Appointment by Promotion) Regulations, 1955 to indicate reasons for selection/non-selection of officers. It is also submitted that the recommendation of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules, and that Court/Tribunal cannot sit as an appellate authority to examine the recommendation of the Selection Committee, like court of appeal. In support of its contentions, the respondent no.2 has relied on the decisions of the Honble Supreme Court in R.S.Dass v. Union of India & others, 1986 Suppl.SCC 617: (1987) 2 ATC 628; Union Public Service Commission v. K.Rajaiah and others, 2005 (10) SCC 15, and Sh.M.V.Thimmaiah & ors v. Union of India & others, Civil Appeal Nos.5883-5891 of 2007, decided on 13.12.2007.
6. In the rejoinder replies, the applicant has refuted the stand taken by the respondents in their counters. Referring to DoP&Ts O.M. dated 8.2.2002, the applicant has, inter alia, stated that the Selection Committee did not adhere to the provisions contained therein. The Selection Committee evaluated the candidates as Very Good, Good and Unfit, instead of Fit and Unfit only. In terms of the said O.M. dated 08.02.2002, the benchmark is Good for promotion to grades below the revised pay scale of Rs.12000-16500/- and therefore, the Selection Committee had to grade officers as Fit or Unfit only with reference to benchmark Good. Even if the Selection Committee graded him as Good, the applicant satisfied the benchmark required for promotion to IAS.
7. We have perused the records and heard the learned counsel appearing for the parties.
8. At the outset, it is pertinent to mention here that the applicant has stated in paragraph 6 of the Original Application that he had made a representation dated 31.5.2011 for redressal of his grievances. He has not stated as to whom he had made the said representation. He has not also filed the copy of the said representation along with the Original Application or the rejoinder replies. In this case, the main grievance of the applicant is with regard to his being assessed as Good by the Selection Committee, vide minutes dated 7.7.2010 and 28.12.2010. The minutes of the Selection Committee and/or the recommendations contained therein do not take the nature and character of any decision taken by the respondents. The notification dated 28.4.2011 (Annexure A-1) issued by the respondent No.1 is based on the said recommendations of the Selection Committee. But the applicant has not impugned the said notification in this Original Application. Thus, the applicant cannot be said to be a person aggrieved by any order within the meaning of Section 19 of the Administrative Tribunals Act, 1985 so as to maintain an Original Application before this Tribunal. If at all the applicant has any grievance against the assessment made by the Selection Committee and the consequential notification, it is the respondents who are vested with the powers under the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 and the Indian Administrative Service (Recruitment) Rules, 1954 to remedy the wrong, if any, committed by the Selection Committee in assessing and grading the applicant as Good. The applicant cannot be allowed to bypass the statutory authorities and approach this Tribunal in a cut and dry manner. The bland assertion of the applicant that he had exhausted the remedy available to him is untenable, and it has to be inferred that the applicant had not exhausted the remedy before approaching this Tribunal. Therefore, in our considered view, the Original Application as laid by the applicant is hit by Section 20(1) of the Administrative Tribunals Act, 1985. Even assuming for a moment that the applicant had made representation on 31.5.2011, yet, in terms of Section 20(2)(b) of the Administrative Tribunals Act, 1985, he could not be deemed to have exhausted the remedy available to him on 26.9.2011 when the Original Application was filed by him before this Tribunal. In the above view of the matter, we hold that the Original Application is not maintainable. However, considering the fact that the Original Application had, in the first instance, been dismissed in limine and that the Honble High Court of Delhi, setting aside the Tribunals order, had remitted the matter back to the Tribunal for fresh consideration after hearing the submissions on behalf of all the parties, we are not inclined to reject the Original Application at this stage, and we propose to consider the rival contentions raised by the parties.
9. It is the contention of the learned counsel for the applicant that when the inputs before the Selection Committee are the ACRs of the officers under consideration and when he has been assessed/graded as Outstanding and Very Good in the ACRs during the relevant periods by the reporting and reviewing officers, the Selection Committee cannot grade him as Good and that too, without assigning any reason therefor and, therefore, the assessment made by the Selection Committee is perverse, arbitrary and unsustainable in the eyes of law. In support of his contention, the learned counsel has relied on Badrinath v. Government of Tamil Nadu & others, (2000) 8 SCC 395.
10. The learned counsel appearing for the respondents, on the other hand, contend that the Selection Committee is not bound by the grading done by the Department and that in every case of assessment of suitability of an officer for promotion by the method of selection, the primary inputs are always the ACRs and the Selection Committee, after deliberating on the attributes mentioned in the ACRs of officers in the zone of consideration, is free to make its own independent assessment, for which no reasons are required to be recorded. To fortify their contention, the learned counsel have placed reliance on the decisions referred to in the counters, as noted earlier.
11. In Badrinath v. Government of Tamil Nadu & others, (2000) 8 SCC 395, the facts of the case were that the appellant was appointed to the IAS in the junior scale on 7.5.1957. He was promoted to the selection grade w.e.f. 1.11.1972, although some of his juniors were promoted to the selection grade w.e.f. 15.5.1971. His name was considered initially for promotion to the super time scale on 30.8.1976 and again on 9.6.1977 and 28.6.1977. On those occasions, he was found to be not suitable on account of alleged pendency of certain disciplinary proceedings. On his supersession in June 1977, he filed an appeal to the Central Government, which remanded the matter for reconsideration by a Joint Screening Committee. In the meantime, on 28.6.1977 the Governor of Tamil Nadu, during the Presidents Rule dropped all the four disciplinary cases. The state Government constituted a Joint Screening Committee to be presided over by the Chief Secretary. However, by the time the Committee met, three of the four disciplinary cases had been dropped. But because of the pendency of the fourth disciplinary case regarding expenditure of Rs.20,807/- on furnishing an office without prior sanction, the Joint Screening Committee placed its assessments of CRs up to 31.3.1977 as well as for the period 1.4.1977 to 30.8.1979 in two different sealed covers. Later, in the fourth case the State Government, as advised by the PSC, imposed the punishment of censure by order dated 8.4.1980 which was signed by the Commissioner, Administrative Reforms. Thereafter, both the sealed covers were opened and it was found that the appellant had not been found fit for promotion to super time scale. The State Government accepted the said recommendations, and on its report, the Central Government rejected the appellants appeal. The appellant approached the High Court by two writ petitions challenging the said order of the Central Government and seeking promotion from the date of his juniors promotion. The said writ petitions were transferred to, and were later dismissed by the Central Administrative Tribunal. In the appeal before the Honble Supreme Court, the following questions arose:
(1) Whether the award of censure in the fourth disciplinary case by the State Government was contrary to the directions of the Governor during the Presidents Rule emergency and whether the State Government thereafter wanted to withdraw the reference to the UPSC and the UPSC refused to permit such withdrawal? Whether the appellant was treated fairly in respect of the said proceedings?
(2) Whether the assessment of confidential reports of the appellant by the Joint Screening Committee at its meeting dated 30.8.1979 was vitiated by reliance upon inadmissible or trivial material and by not giving weight to the positive sides of his career and also by wrongly relying upon adverse remarks whose basis was knocked down by the dropping of various charges? Whether the appellant was dealt with fairly?
(3) Whether very old remarks made before the appellants earlier promotion to selection grade could be relied upon strongly even though the sting in them had faded?
(4) Whether Chief Secretary, Shri V.Karthikeyan should have recused himself from participating in the Joint Screening Committee meeting on 30.8.1979? Or whether the doctrine of necessity applied?
(5) Whether the action of the 3rd and 4th respondents was mala fide?
(6) To what relief? The Honble Apex Court, after taking into consideration the relevant factors, held that the order of censure was bad in law and that the State and Central Governments erred in relying on the same for rejecting his plea for super time scale and, accordingly, decided the Point No.1 in favour of the appellant. Thereafter, the Honble Supreme Court, while considering Point Nos.2 and 3, observed in paragraphs 37, 38, 39, 40 and 41 of the judgment, observed thus:
37. These points raise certain important issues relating to fairness in the matter of consideration of an officer for promotion under Article 16 and as to the manner in which adverse remarks can be taken into consideration.
38. Normally, this Court does not enter into question of the correctness of assessment made by Departmental Promotion Committees (or Joint Screening Committees).
39. But the case before us appears to be a very exceptional one as it has serious overtones of legal bias (to which we shall refer in detail when we come to Points 4 and 5).
40. Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, courts and Tribunals cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspect of ones career is strongly displayed, or if the interferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of judicial review under Article 226 of the Constitution are not foreclosed.
41. While the courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committees, the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to be scrutinized by courts, within the narrow Wednesbury principles or on the ground of mala fides. The judicial power remains but its use is restricted to rare and exceptional situations. We are making these remarks so that courts or Tribunals may not by quoting this case as an easy precedent interfere with assessment of merit in every case. Courts and Tribunals can neither sit as appellate authorities nor substitute their own views to the views of Departmental Promotion Committees. Undue interference by the courts or tribunals will result in paralyzing recommendations of Departmental Committees and promotions. The case on hand can be a precedent only in rare cases.
12. In R.S.Dass, etc. v. Union of India,etc, 1986 Supp.SCC 617: (1987) 2 ATC 628, Honble Supreme Court, in paragraph 21 of the judgment, held thus:
..Principles of natural justice do not require an administrative authority or a selection committee or an examiner to record reasons for the selection or non-selection of a person. In the absence of a statutory provision an administrative authority is under no legal obligation to record reasons in support of its decision. There is no scope for applying principles of natural justice in matters relating to selection of suitable members of State Service for promotion to a higher service..
13. In National Institute of Mental Health & Neuro Sciences v. Dr.K.Kalyana Raman and others, 1992 Suppl.(2) SCC 481, the Honble Supreme Court, in paragraph 7 held thus:
..Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R.S.Dass v. Union of India in which Capoor Case was also distinguished.
14. In UPSC v. K.Rajaiah others, (2005) 10 SCC 15, the facts of the case were that the first respondent belonging to A.P.Police Service of the rank of Superintendent of Police filed an application before the Central Administrative Tribunal, Hyderabad Bench, in the year 2002, questioning the two notifications dated 21.1.2002 and 15.2.2002 issued by the Central Government selecting and appointing certain police officers of the Andhra Pradesh State cadre to Indian Police Service against vacancies of 1998 and 1999. It was his case that despite his outstanding service, he was not selected whereas officers having inferior merit were selected. His main contention was that there was no proper assessment of merit by the Selection Committee and the awards and commendations which he got and Outstanding grading given in the ACRs for as many as four years were not duly taken into account by the selecting body. He claimed to have possessed superior merit over the three respondents who were senior to him and who were selected and appointed by the Government. The Tribunal did not accept his contention and dismissed the application. In the writ petition filed by the 1st respondent, the Honble High Court observed that no reasons were disclosed for revising the classification to the detriment of the 1st respondent and that the Selection Committee omitted to consider the relevant material. Accordingly, the Honble High Court allowed the writ petition and directed the official respondents to constitute a fresh Selection Committee and to prepare the panel of officers to be promoted to Indian Police Service for the year 1999. The UPSC and Union of India assailed the judgment of the Honble High Court by filing SLP before the Honble Supreme Court of India. Referring to Regulation 5(4) and (5) of the Indian Police Service (Appointment by Promotion) Regulations, 1955 in regard to preparation of Select List and following the decisions in R.S.Dasss case and National Institute of Mental Health & Neuro Sciences(supra), Their Lordships, in paragraph 9 of the judgment, held thus:
That being the legal position, the Court should not have faulted the so-called downgradation of the first respondent for one of the years. Legally speaking, the term downgradation is an inappropriate expression. The power to classify as Outstanding, Very Good, Good and Unfit is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State Government authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large guided by the classification adopted by the State Government but, for good reasons, the Selection Committee can evolve its own classification which may be at variance with the gradation given in the ACRs. That is what has been done in the instant case in respect of the year 1993-94. Such classification is within the prerogative of the Selection Committee and no reasons need be recorded, though it is desirable that in a case of gradation at variance with that of the State Government, it would be desirable to record reasons. But having regard to the nature of the function and power confided to the Selection Committee under Regulation 5(4), it is not a legal requirement that reasons should be recorded for classifying an officer at variance with the State Governments decision.
15. In Sh.M.V.Thimmaiah & others v. Union of India, Civil Appeal Nos. 5883-5891 of 2007, decided on 13.12.2007, the Honble Supreme Court, in paragraph 9 of the judgment, observed thus:
.Normally, the recommendation of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an appellate authority to examine the recommendations of the Selection Committee like the court of Appeal. This discretion has been given to the Selection Committee only and courts rarely sit in court of appeal to examine the selection of the candidate nor is the business of the court to examine each candidate and record its opinion.
16. From the above decisions of the Honble Supreme Court, the law is crystal clear that unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, Courts and Tribunals cannot interfere with assessment made by Selection Committee/Departmental Promotion Committee in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible, or irrelevant, or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspect of ones career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusion, or if there is illegality attached to the decision, then the powers of judicial review are not foreclosed. The judicial power remains, but its use is restricted to rare and exceptional situations. Courts and Tribunals can neither sit as appellate authorities nor substitute their own views for that of the Selection Committee/Departmental Promotion Committee. In the absence of a statutory provision, an administrative authority is under no legal obligation to record reasons in support of its decision. There is no scope for applying principles of natural justice in matters relating to selection of suitable members of State Service for promotion to a higher service. In the absence of any requirement in the Rules or Regulation obliging the Selection Committee to record reasons, no such requirement can be inferred. The principles of natural justice are not attracted to such situation and that recording the reasons was not necessary requirement. Absence of adverse remarks is not the criteria of the quality of an officer.
17. In order to consider the rival contentions of the parties, it would be necessary to refer to Regulation 5(4) & (5) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, which read thus:
5(4) The Selection Committee shall classify the eligible officers as Outstanding, Very Good, Good or Unfit, as the case may be, on an overall relative assessment of their service records.
5(5) The list shall be prepared by including the required number of names, first from amongst the officers finally classified as Outstanding then from amongst those similarly classified as Very Good and thereafter from amongst those similarly classified as Good and the order of names inter-se within each category shall be in the order of their seniority in the State Civil Service.
Provided that the name of any officer so included in the list, shall be treated as provisional, if the State Government, withholds the integrity certificate in respect of such an officer or any proceedings, departmental or criminal, are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government.
Provided further that while preparing year-wise select lists for more than one year pursuant to the second proviso to sub-regulation (1), the officer included provisionally in any of the select list so prepared, shall be considered for inclusion in the select list of subsequent year in addition to the normal consideration zone and in case he is found fit for inclusion in the suitability list for that year on a provisional basis, such inclusion shall be in addition to the normal size of the select list determined by the Central Government for such year.
Explanation I: The proceedings shall be treated as pending only if a charge-sheet has actually been issued to the officer or filed in a Court, as the case may be.
Explanation II: The adverse thing which came to the notice of the State Government rendering him unsuitable for appointment to the Service shall be treated as having come to the notice of the State only if the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential.
18. In the instant case, the applicant has not challenged his non-selection on the grounds of mala fides, or of violation of any provisions of the statutory rules/regulations. The applicants grievance is that in the absence of any other materials, the Selection Committee ought not to have assessed/graded him as Good on the basis of his ACRs, in which he has been graded as Outstanding or Very Good, and that too, without assigning any reason.
19. Regulation 5(4) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 does not oblige the Selection Committee to assign reasons while assessing the officers in the zone of consideration and classifying them as Outstanding, Very Good, Good or Unfit. Therefore, the applicant cannot be allowed to call in question the assessment made by the Selection Committee grading him as Good, at variance with the grading contained in his ACRs, solely because of non-recording of reasons by the Selection Committee.
20. The other aspect of the matter is: Whether, or not, the case of the applicant was duly considered and his non-selection was on account of arbitrariness in the process of selection? It is not the case of the applicant that any commendation for his meritorious work was available on his service records, or that such commendation available on his service records, though placed before the Selection Committee, was lost sight of. It is also not his case that any extraneous material was placed before the Selection Committee and taken into consideration by the Selection Committee while assessing him. As per the settled position of law, the grading assigned in the ACRs is not binding on the Selection Committee, which has to independently assess the officers on the basis of the attributes indicated therein. The applicant has placed on record his ACR for the year 2002-03. In column 3 under caption General Assessment, the reporting officer has mentioned:
A very intelligent officer with exceptional organizing capacity. He is a go-getter. This time being his third posting in the Department, he was very well conversant with the training programmes and activities. Knew his job thoroughly. He has a knack of dealing with complicated issues successfully. Besides his normal duties, he took keen interest in the training programmes conducted on Right to Information Act and actively participated in the question answer sessions. Faced queries and doubts of the participants with exceptional alertness of mind and clarify. I rate him as an outstanding officer. The reviewing officer, against the column whether he would agree with the assessment of the officer given by the reporting officer, and whether there is anything he wished to modify or add, recorded thus:
I cannot endorse the grading outstanding. Neither the work of the Department nor the contribution of Shri Aggarwal stood out of the ordinary. The grading should be Very Good. If the Selection Committee was to consider this report, was it improbable to come to conclusion that the applicant should be rated only good? The answer would be in the negative. Viewed from this angle, we do not find any arbitrariness in the assessment made by the Selection Committee in respect of the applicant. In the above view of the matter, we are not impressed by the submission made by the learned counsel for the applicant.
21. It is also submitted by the learned counsel for the applicant that in terms of the DoP&Ts O.M. No.35034/7/97-Estt.(D) dated 8.2.2002, the Selection Committee ought to have assessed the applicant and other officers in the zone of consideration as Fit or Unfit, instead of Outstanding, Very Good, Good or Unfit, and since the Selection Committee has assessed the applicant as Good, which is the benchmark for promotion by selection to the grade below Rs.12,000-16,500/-, the applicant ought to have been assessed as Fit and included in the Select List-2007-A or Select List-2008 in order of his inter se seniority in the grade.
22. Per contra, the learned counsel for the respondents contend that the assessment and inclusion in the Select List for the purpose of appointment by promotion to IAS are governed by the IAS (Appointment by Promotion) Regulations, 1955, and that the DoP&Ts O.M. No.35034/7/97-Estt.(D) dated 8.2.2002 is not applicable to the case at hand.
23. The DoP&Ts O.M. No.35034/7/97-Estt.(D) dated 8.2.2002 is quoted in extenso:
F.No.35034/7/97-Estt.(D) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training New Delhi-110001 February 8,2002 OFFICE MEMORANDUM Subject:- Procedure to be observed by Departmental Promotion Committee (DPCs) No supersession in selection promotion Revised Guidelines regarding.
The undersigned is directed to invite reference to the Department of Personnel & Training (DoP&T) Office Memorandum (O.M.) No.22011/5/86-Estt(D) dated March 10, 1989 and O.M. of even number dated April 10, 1989 [as amended by O.M.No.22011/5/91-Estt(D) dated March 27, 1997] which contain the instructions on the Departmental Promotion Committees (DPCs) and related matters. In regard to the selection mode of promotion (selection-cum-seniority and selection by merit), the aforesaid instructions prescribe the guidelines (as briefly discussed in paragraph 2 below) for overall grading to be given by the DPC, bench-mark for assessment of performance and the manner in which the select panel has to be arranged for promotions to various levels of post/grade.
2. Existing Guidelines 2.1 As per the existing (aforementioned) instructions, in promotions up to and exclusively the level in the pay-scale of Rs.12,000-16,500/- (excepting promotions to Group A posts/services from the lower group), if the mode happens to be selection-cum-seniority , then the bench-mark prescribed is good and officers obtaining the said bench-mark are arranged in the select panel in the order of their seniority in the lower (feeder) grade. Thus, there is no supersession among those who meet the said bench-mark. Officers getting a grading lower than the prescribed bench-mark (good) are not empanelled for promotion.
2.2 In the case of promotions from lower Groups to Group A, while the mode of promotion happens to be selection by merit the bench-mark prescribed is good and only those officers who obtain the said bench-mark are promoted in the order of merit as per grading obtained. Thus, officers getting a superior grading supersede those getting lower grading. In other words, an officer graded as outstanding supersedes those graded as very good and an officer graded as very good supersedes officers graded as good. Officers obtaining the same grading are arranged in the select panel in the order of their seniority in the lower grade. Those who get a grading lower than the prescribed bench-mark (good) are not empanelled for promotion.
2.3 In promotion to the level in the pay scale of Rs.12,000-16,500/- and above, while the mode of promotion is selection by merit, the bench-mark prescribed is very good and only those officers who obtain the said bench-mark are promoted in the order of merit as per the grading obtained, officers getting superior grading supersede those getting lower grading as explained in paragraph 2.2 above. Officers obtaining the same grading are arranged in the select panel in the order of their seniority in the lower grade. Those who get a grading lower than the prescribed bench-mark (very good) are not empanelled for promotion.
3. Revised Guidelines The aforementioned guidelines which permit supersession in selection promotion (selection by merit) have been reviewed by the Government and after comprehensive/extensive examination of relevant issues it has been decided that there should be no supersession in matter of selection (merit) promotion at any level. In keeping with the said decision, the following revised promotion norms/guidelines, in partial modification (to the extent relevant for the purpose of these instructions) of all existing instructions on the subject (as referred to in paragraph 1 above) are prescribed in the succeeding paragraphs for providing guidance to the Departmental Promotion Committees (DPCs).
3.1 Mode of Promotion In the case of selection (merit) promotion, the hitherto existing distinction in the nomenclature (selection by merit and selection-cum-seniority) is dispensed with and the mode of promotion in all such cases is rechristened as selection only. The element of selectivity (higher or lower) shall be determined with reference to the relevant bench-mark (Very Good or Good) prescribed for promotion.
3.2 Bench-mark for promotion The DPC shall determine the merit of those being assessed for promotion with reference to the prescribed bench-mark and accordingly grade the officers as fit or unfit only. Only those who are graded fit (i.e. who meet the prescribed bench-mark) by the DPC shall be included and arranged in the select panel in order to their inter-se seniority in the feeder grade. Those officers who are graded unfit (in terms of the prescribed bench-mark) by the DPC shall not be included in the select panel. Thus, there shall be no supersession in promotion among those who are graded fit (in terms of the prescribed bench-mark by the DPC.
3.2.1 Although among those who meet the prescribed bench-mark, inter-se seniority of the feeder grade shall remain intact, eligibility for promotion will no doubt be subject to fulfillment of all the conditions laid down in the relevant Recruitment/Service Rules, including the conditions that one should be the holder of the relevant feeder post on regular basis and that he should have rendered the prescribed eligibility service in the feeder post.
3.3 Promotion to the revised pay scale (grade) of Rs.12,000-16,500/- and above The mode of promotion, as indicated in paragraph 3.1 above, shall be selection.
The bench-mark for promotion, as it is now, shall continue to be very good. This will ensure element of higher selectivity in comparison to selection promotions to the grades lower than the aforesaid level where the bench-mark, as indicated in the following paragraphs, shall be good only.
The DPC shall for promotions to said pay-scale (grade) and above, grade officers as fit or unfit only with reference to the bench-mark of very good. Only those who are graded as fit shall be included in the select panel prepared by the DPC in order of their inter-se seniority in the feeder grade. Thus, as already explained in paragraph 3.2 above, there shall be no supersession in promotion among those who are found fit by the DPC in terms of the aforesaid prescribed bench-mark of very good.
3.4 Promotion to grades below the revised pay-scale (grade) of Rs.12,000-16,500 (including promotions from lower Groups to Group A posts/grades/services) The mode of promotion, as indicated in paragraph 3.1 above, shall be selection.
The bench-mark for promotion, as it is now, shall continue to be good.
The DPC shall for promotion to posts/grades/services in the aforesaid categories, grade officers as fit or unfit only with reference to the bench-mark of good. Only those who are graded as fit shall be included in the select panel prepared by the DPC in order of their inter-se seniority in the feeder grade. Thus, as already explained in paragraph 3.2 above, there shall be no supersession in promotion among those who are found fit by the DPC in terms of the aforesaid prescribed bench-mark of good.
6. Ministries/Departments are requested to give wide circulation to these revised instructions for general guidance in the matter so that immediate steps are taken to amend the Service Rules/Recruitment Rules of various services/posts/grades so as to appropriately incorporate the mode of promotion as selection (in accordance with these instructions) in place of selection by merit and selection-cum-seniority (as was hitherto prescribed by the aforementioned O.M. dated March 27, 1997) as the case may be. The powers to amend Service Rules/Recruitment Rules in this regard are delegated to the Ministries/Department. DoP&T need not be consulted to carry out the required amendments.
Sd/ (ALOK SAXENA) Deputy Secretary to the Government of India
24. In the case at hand, the selection of State Civil Service officers for appointment by promotion to the Indian Administrative Service has been made in accordance with the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 and the Indian Administrative Service (Recruitment) Rules, 1954, as they stood at the relevant point of time. In pursuance of Rule 8(1) of the Indian Administrative Service (Recruitment) Rules, 1954, the Central Government, in consultation with the State Governments and the Union Public Service Commission, has made the Indian Administrative Service (Appointment by Promotion) Regulations, 1955. In Paragraph 6 of the O.M. dated 8.2.2002(ibid), it has been stipulated that the Ministries/Departments are requested to give wide circulation to the revised instructions contained therein for general guidance in the matter so that immediate steps are taken to amend the Service Rules/Recruitment Rules of various services/posts/grades. After issuance of the O.M. dated 8.2.2002 (ibid), Regulation 5 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, does not appear to have been amended. The provisions contained in the above O.M., which are in the nature of executive instructions issued by the Government of India, cannot override the provisions contained in the statutory rules and regulations. Besides, it is not the case of the applicant that the respondents have ever followed the instructions contained in the O.M. dated 8.2.2002 (ibid) in the matter of selection of State Civil Service officers for appointment by promotion to the Indian Administrative Service in accordance with the Indian Administrative Service (Recruitment) Rules, 1954 and Indian Administrative Service (Appointment by Promotion) Regulations, 1955. Therefore, in the instant case, we do not find any fault with the Selection Committee, or, for that matter, the Respondents for not taking into account the provisions of the DoP&Ts O.M. dated 8.2.2002(ibid).
25. Taking an overall view and having due regard to the limitations inherent in judicial review of selection process by an expert body, we are not inclined to interfere with the assessment made by the Selection Committee qua the applicant.
26. In the light of the foregoing discussion, we hold that the Original Application is devoid of merit and is liable to be dismissed. Accordingly, the Original Application is dismissed. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN