Central Administrative Tribunal - Delhi
S. Puttaswamy At The Time Of Selection ... vs Union Of India (Uoi) Through The ... on 3 July, 2008
ORDER Chitra Chopra, Member (A)
1. Applicant herein S. Puttaswamy has impugned Notification No. DPAR 61 SAS 2006 dated 01.02.2007 (Annexure A/5) vide which appointments from the Karnataka Administrative Service (KAS) to the Indian Administrative Service (IAS) have been made against the vacancies for the years 2003, 2004, 2005 and 2006 under Sub-rule (1) of Rule 5 of the Indian Administrative Service (Cadre) Rules, 1954. The names of the officers contained in the select lists for these 4 years have been indicated therein and all of them have been impleaded as respondents in the present O.A.
2. Applicant filed two O.As (No. 2465/2006 and No. 1352/2007. By O.A. No. 2465/2006, the applicant challenged the select list prepared by the Selection Committee selecting respondent Nos. 5 to 15 for their promotion to I.A.S. from Karnataka Administrative Service (KAS). By the present O.A. No. 1352/2007, applicant has challenged selection and appointment of respondent Nos. 5 to 15 into IAS.
3. As the cause of action in both the OAs was the same, viz., challenge to the select list, OA-2465/2006 was dismissed vide Tribunal's order dated 08.08.2007 by observing that the cause of action and relief claimed by the applicant would now survive in OA-1352/2007.
4. Facts as set out by the applicant in the O.A. are briefly recapitulated. Applicant is an officer of the KAS having been appointed in 1983, given Senior Scale on 03.10.1989, Selection Grade w.e.f. 10.07.2001 and Supertime Scale w.e.f. 26.02.2004.
Meeting of the Selection Committee for promotion of State Civil Service Officers to the IAS was held on 02.11.2006. Recommendation was made for selection and appointment by promotion of respondents No. 5 to 15 to the IAS from the KAS. A copy of the proceedings obtained by the applicant is annexed as Annexure A-6. In the said meeting, following year-wise vacancies were considered:
Year No. of Vacancies 2 2 6 1 ____ Total 11 ____
Applicant came to know that he did not figure in the select list although out of 5 ACRs from 1999-2000 onwards till the year 2004-2005, he is having 3 'Outstanding' ACRs for 1999-2000, 2000-2001 and 2002-2003 and 'Very Good' for the year 2003-2004. However, he has been awarded 'Average' grading for the year 2001-2002. It is his contention that persons who have been selected have inferior grading than him. For example, one Sh. Vastrad P.S. has been selected, though for the year 1998-1999 he is having 'Good', for 1999-2000 'Very Good', for 2000-2001 'Outstanding' and for remaining years 'Very Good'. In the same manner other officers like Mr. R. Narayanswamy, Mr. R.K. Raju have also been selected though they do not have any 'Outstanding' ACR. Sh. Shivappa has been selected though his gradings are either 'Average', not available or 'Very Good'. Applicant has specifically mentioned selection of Respondent No. 5 (Sh. C. Somashekar) against whom a case for prosecution under Prevention of Corruption Act, 1988 was pending. Despite request made by Additional Director General of Police, Karnataka Lokayukta, Bangalore to State Government for sanction of prosecution Under Section 19 of Prevention of Corruption Act, such sanction was not granted by the State Government.
Applicant has cited Regulation 5(5) of the IAS (Appointment by Promotion) Regulations, 1955 (Regulations) (hereinafter referred to as Regulations), which contains the procedure for promotion. Placing reliance on the decision of Hon'ble Supreme Court in R.S. Dass v. UOI and Ors. it is emphasized that while selecting officers, the Selection Committee shall consider merit as the criteria and not the seniority and that seniority will come to play only when the merit is equal.
It is further submitted that by the UPSC's own averments in the counter-reply, applicant was graded 'Very Good' by Selection Committee. All other candidates who were having lower merit have also been graded as 'Very Good'. Thus, though applicant is more meritorious than other respondents, who have been considered and promoted to the IAS, he has been ignored merely on the ground that he was the junior-most candidate amongst the eligible candidates. Applicant was given 'Average' Grading for the year 2001-2002 without any reason or basis and without any opportunity to him to make a representation. As the said 'Average' Grading has not been communicated to him, the same should have been ignored by the Selection Committee and he should have been considered by ignoring the said ACR of 2001-2002. Applicant believes that he was given 'Average' Grading merely to see that he was not selected. Further, the non-communication is in violation of the law laid down by Hon'ble Supreme Court in U.P. Jal Nigam v. Prabhat Chandra Jain and Ors. .
It is further contended that the 'Average' Grading is due to the vindictive attitude of certain officers as applicant was Private Secretary of Mr. Siddaramaiah, who was earlier Dy. Chief Minister for the State of Karnataka and with the change of Government, he was politically victimized. It is also contended that he will be crossing 54 years of age very soon and in case he is not selected this year, he will be debarred from the zone of consideration for future vacancies.
5. With this factual matrix, applicant has sought the following reliefs:
(i) Direction to Respondents No. 1, 2 and 3 to declare him selected and appointed in IAS from KAS and ignoring the 'Average' grading awarded to him for the year 2001-2002.
(ii) Quashing of Notification dated 01.02.2007 issued by Department of Personnel & Training.
(iii) Direction to the respondents to declare the 'Average' Grading awarded to him for the year 2001-2002 in his ACRs as illegal as it has been awarded without providing him any opportunity.
(iv) Call for the relevant record maintained by State of Karnataka as well as UPSC pertaining to Selection.
6. The above reliefs have been claimed on the following main grounds:
(a) Because respondent No. 5 (Sh. C. Somashekhar) who is an officer of doubtful integrity and against whom criminal case under the Prevention of Corruption Act, 1988 for possession of disproportionate assets is pending, and ought not to have been selected for promotion to IAS.
(b) 'Average' grading for the year 2001-2002 is liable to be expunged as the applicant is having meritorious service record and even if it has been made a basis to consider his merit by the Selection Committee, it should not have been taken into consideration.
(c) Applicant, having better merit than other candidates, ought to have been selected for promotion in the IAS. The selection and appointment of respondents No. 5 to 15 is based on ulterior motive. Respondents No. 1,2 and 3 have ignored his meritorious record. The service record of several candidates selected by respondents No. 2 and 3 was not available.
(d) Selection of respondents No. 5 to 15 is contrary to the provisions of the said Regulations of 1955.
(e) Persons who have been selected are having inferior grading than the applicant. The service records of certain candidates was manufactured/created at the instructions of respondents No. 2 and 3 subsequently at the time of selection only.
7. In the counter-reply filed on behalf of U.P.S.C. (R-2), it has been submitted, at the outset, that selection of State Civil Service officers for promotion to IAS are governed by the IAS (Appointment by Promotion) Regulations, 1955. In accordance with the provisions of these Regulations, the Selection Committee, constituted under Regulation-3, presided over by the Chairman/Member of the U.P.S.C. makes selection of State Civil Service officers for promotion to the IAS. The selections are made after taking into consideration the records received from the State Government under Regulation 6A, and the UPSC accorded their approval to the recommendations of the Selection Committee in accordance with the provisions of Regulation-7.
Further, as per provisions of Regulation-5(4), the aforesaid Committee duly classifies the eligible SCS officers included in the zone of consideration as Outstanding/Very Good/Good or Unfit as the case may be, on an overall relative assessment of their service records. Thereafter, the Select List is prepared as per provisions of Regulation-5(5).
ACRs of eligibile officers are the basic inputs on the basis of which officers are categorised in accordance with provisions of Regulation-5(4). The Selection Committee is guided not merely by the overall grading that may be recorded in the ACRs but in order to ensure justice, equity and fair play makes it own assessment on the basis of in-depth examination of service records of eligible officers, deliberating on the quality of the officer on the basis of performance as reflected under various columns recorded by the various authorities in the ACRs for different years and finally arrives at the classification to be assigned to each eligible officer. While making over all assessment, the Selection Committee takes into account orders regarding appreciation for meritorious work done by the concerned officer as well as orders awarding penalties or any adverse remarks communicated to the officer, etc. Coming to the facts of the instant case, it is brought out that meeting of the Selection Committee was held on 02.11.2006 for preparation of the year-wise select lists of 2003-2006 for promotion to the IAS, Karnataka Cadre. The select list of 2003 was prepared afresh in pursuance of directions dated 10.09.2004 of this Tribunal in OA-2631/2000 and OA-2851/2003 (Sh. M. Krishna v. UOI and Ors.).
The U.P.S.C. approved the Select Lists of 2003-2006 in terms of Regulation-7 of IAS Promotion Regulations and conveyed approval to DoP&T vide letter dated 01.02.2007. Government of India made appointments to the IAS from the Select Lists of 2003 to 2006 vide the impugned Notification dated 01.02.2007.
While rebutting the contentions of the applicant that persons who have been selected are having inferior grading than the applicant and that service records of certain candidates were manufactured/created at the instructions of respondents No. 2 and 3 at the time of selection only, it is submitted that the statutorily constituted Selection Committee, which met on 02.11.2006 prepared the Select List in accordance with the Regulations. The overall assessment of the officers in the respective zone of consideration for the years 2003, 2004, 2005 and 2006 were made on the basis of the assessment of the ACRs of the officers and other service record as made available by the State Government.
Applicant, who was in the zone of consideration in the year 2005 for the first time could not be included in the Select List of 2005 as he was lower in the seniority position and the officers senior to him with 'Very Good' grading could only be included due to statutory limit on size of the list. In 2006, for one vacancy the zone of consideration was 03, hence applicant was not in the zone of consideration. In regard to availability of service record, it is submitted that the State Government when sends the proposal for convening meeting of the Selection Committee to the U.P.S.C., along with requisite record of eligible officers, viz. integrity certificate, status of disciplinary/criminal proceedings, statement of adverse remarks in the ACRs, communication thereof etc, Court directions, complete ACR etc., the proposal is scrutinized in the office and if some deficiencies are observed, U.P.S.C. seeks requisite clarification/document from the State Government being the Cadre Controlling Authority of the State Civil Service Officers.
In regard to the contention of the applicant that he was given 'Average' Grading by the Selection Committee for the year 2001-2002, it is submitted that the Selection Committee, as per the uniform and consistent practice followed in the matter of induction to the All India Services examines in detail, the service records of each eligible officer with special reference to performance during the 5 years preceding the year for which the Select List is prepared. The assessment is made after careful review of the ACRs, the specific grading/remarks under various parameters and attributes, and all other relevant records. The officers considered by the Selection Committee have been categorized as 'Unfit', 'Good' and 'Very Good' on the basis of assessment of their service record and none of the officers included in the zone of consideration could be assessed as 'Outstanding'. Thus, all officers graded as 'Very Good' were included in the Select List for the years 2003-2006. Few officers, namely, Sh. M. Krishna graded as 'Unfit' for the years 2003-2004 and Sh. B.N. Suresh graded as 'Good' for the year 2006 have not been included in the Select Lists whereas their juniors have been included. It is emphasized that applicant, who was in the zone of consideration for 2005, has been duly assessed by the Committee as 'Very Good' but not included as he was junior. It is further submitted that the Selection Committee is not obliged to indicate reasons of Selection/Non-Selection of officers and no where in the Regulations it is provided that such reasons are to be recorded by the Selection Committee for the assessments/selections made.
In this connection, respondents have drawn support from the judgment of Hon'ble Supreme Court in R.S. Dass v. UOI and Ors. in which it has been held:
We find no merit in the submission. 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 Provisions, administrative authority is under no legal obligation to record reasons in support of its decision.
In Nutan Arvind v. U.O.I. and Ors. , Hon'ble Supreme Court has held as follows:
When a high level Committee had considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, this Court cannot sit over the assessment made by the DPC as an appellate authority.
Respondents have also cited the decision of Hon'ble Supreme Court in Durga Devi and Anr. v. State of Himachal Pradesh and Ors. 1997 SCC(L & S) 982 wherein it has been held that jurisdiction to make selection is vested in the Selection Committee.
Hon'ble Supreme Court in UPSC v. H.L. Dev and Ors. has held as under:
How to categorise in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee. The jurisdiction to make the selection is vested in the Selection Committee.
Respondents have also placed reliance in more cases, namely, Madhya Pradesh v. Shri Shrikant Chapekhar JT 1992 (5) SC 633; Dalpat Abasaheb Solanke v. B.S. Mahajan and Smt. Anil Katiyar v. U.O.I. and Ors. 1997 (1) SLR 153).
Regarding applicant's contention that the 'Average' grading has not been communicated to him, it is submitted that maintenance of the ACR is within the domain of the State Government and the Selection Committee makes its assessment on the basis of ACRs made available to them by the State Government. It is further submitted that in the case of U.O.I. and Anr. v. Major Bahadur Singh Appeal (Civil) 4482/2003, Hon'ble Supreme Court has held that the U.P. Jal Nigam's case has no universal application and that judgment was intended to be meant only for the employees of the U.P. Jal Nigam.
In response to applicant's contention regarding institution of criminal proceedings/disciplinary proceedings against Shri C. Somashekhar, it is submitted that this action is within the domain of the State Government and as per records furnished by the State Government, no criminal/disciplinary proceedings were pending against the officer and integrity certificate was furnished. It was on this basis and on over all relative assessment of service record that Selection Committee assessed him as 'Very Good' and consequently he was included in the Select List of 2003. Lastly, it is submitted that as per records furnished to the Commission, applicant has crossed the age of 54 years as on 05.03.2006, as such, he was not eligible for consideration for inclusion in the Select List of 2007.
8. In the reply filed on behalf of Respondent No. 3 (State of Karnataka), it is submitted that the prayers of the applicant cannot be granted as it is well settled that no Court or Tribunal can issue a mandamus for appointment or selection of a particular candidate. Further, applicant has sought to quash the grading in his ACR for the year 2001-2002 after a lapse of nearly five years. Also, the question relating to the validity of the ACR of the applicant is a matter which falls within the jurisdiction of the State Government.
Facts relating to the convening of Selection Committee meeting etc. being a matter of record, it is reiterated that applicant was included at Serial No. 14 of the zone of consideration for the year 2005. The overall records assessment of the applicant is the same as that of officers placed at Serial Nos. 1 to 6 and 8 i.e. 'Very Good'. However, since only 6 vacancies were available during 2005 and applicant was junior in the inter-se-seniority list, he was placed in the select list for 2005 and candidates appearing at Serial Nos. 1 to 6 who were senior and had similar grading were selected. Thus, no undue favour has been shown to anybody in the matter of selection to IAS as alleged by the applicant.
In regard to the investigation and prosecution of Sh. C. Somasekhara (R-5), it is submitted that the Police Wing of Lokayukta after conducting investigation sought sanction of the State Government for prosecution. However, after examining the investigation report of the Police Wing of Lokayukta and considering all relevant aspects of the matter, the State Government rejected sanction for prosecution. Further, the Hon'ble High Court of Karnataka, Bangalore vide its order dated 17.01.2007 in Writ Petition No. 837/2007 filed by Sh. C. Somasekhara has granted stay of all further proceedings in Crime No. 26/99 registered by the Karnataka Lokayukta under the Prevention of Corruption Act. Since there was no criminal/departmental/judicial case pending against Sh. C. Somasekhara (R-5), the action taken by the UPSC and the Central Government to approve the Select List and appoint Shri C. Somashekar to the IAS is in order and there is nothing irregular or illegal.
It is also stated that the Selection Committee has assessed the merit of each official including the applicant and selections are made on the basis of over all relative assessment by the Committee and in accordance with Regulations. While denying the averment of applicant that he has been made a victim of the vindictive attitude of certain officials, it is stated that applicant has made allegations of malafides against Sh. H.D. Kumaraswamy, but has not made him a party to the present application. It is well settled that where an allegation of malafide is made, such person against whom is malafide attributed must be made a party, failing which the allegation would not be possible to be sustained.
Finally, it is submitted that respondents No. 5 to 15 have been selected to the IAS and have already been appointed w.e.f. 01.02.2007 and are discharging their duties in their respective posts from the said date.
9. Reply has also been filed on behalf of private respondents No. 5 to 8 and 10 to 15. Main submissions made on behalf of these respondents are:
(a) Applicant is not entitled to challenge the selection of all the 11 respondents. The selection was for different periods commencing from 2003. In terms of Regulation 5(2), the number of officers to be selected shall be three times the vacancies available for each year in order of seniority and only those officers will be under zone of consideration.
(b) For the years 2003 and 2004 there were only two vacancies in each year and, therefore, only 12 officers in order of seniority (as shown in the seniority list as Annexure A-12) were in the zone of consideration for these two years.
(c) Applicant is at Serial No. 20 of the seniority list and came in the zone of consideration only from the year 2005. The selection for the vacancies for the years 2003 and 2004 cannot, therefore, be challenged or questioned by the applicant because he was not even in the zone of consideration for those vacancies. Thus, the present application as against the persons selected for the vacancies for these two years is not maintainable and is liable to the rejected.
(d) Applicant became eligible for consideration only from the year 2005 onwards. Respondents No. 9 to 14 are selected for vacancies for this year. Out of them Sh. B. Shivappa (R-12) belongs to ST category and Sh. Baldev Krishna (R-13) belongs to SC category. It may be seen from the seniority list that all other respondents starting from No. 5 are far senior to the applicant. The persons selected being senior to him and also meritorious, there is no reasonable ground to question the selection of other respondents at all.
(e) 'Average' grading awarded to the applicant for the year 2001-2002 falls within the jurisdiction of the State Administrative Tribunal. Any how the applicant was aware all along of the 'Average' grading in the ACR and had never questioned it so far and had obviously accepted it. Now, after a lapse of 5 years, applicant's prayer is also barred by time and hence liable to be rejected.
(f) Applicant has annexed unauthenticated copy of the proceedings of the Selection Committee dated 02.11.2006 as Annexure A-6 which appears to be incomplete and truncated and should not be given any credence. Respondents have denied the claim of the applicant that his grades are better than those accorded to the respondents. It is submitted that applicant was working as Private Secretary to Deputy Chief Minister from the year 1999-2000 to 2000-2001, hence got 'Outstanding' grade. In the year 2001-2002 when he was no more Private Secretary to the Deputy Chief Minister then he was given 'Average'. Be that as it may, Selection Committee makes the assessment of the officers based upon ACRs, the service records etc. as provided under Regulation 5(4) of the said Regulations. In UPSC v. K. Rajaiah and Ors. Hon'ble Supreme Court has held that the powers to classify the officers as 'Outstanding', 'Very Good', 'Good' and 'Unfit' is vested with the Selection Committee which is a function incidental to the selection process and the classification given by the State Government authorities in the ACRs is not binding on the Committee although may be guided by the classification adopted by the State. It is also observed that reasons are not required to be recorded for classifying an officer at variance with the assessment of the State Government. Same view has been recorded in R.S. Das v. U.O.I. 1986 Supp.(1) SCC 617. Answering respondents have also submitted that Sh. H.D. Kumaraswamy has not been made a party in the present proceedings and hence the ground of malafide cannot have any basis. It is finally submitted that the selection process was entirely in accordance with the rules and prayers of the applicant are not maintainable.
10. We have heard the extensive submissions of learned Counsel for both the parties and perused the material placed on record.
11. Learned Senior Counsel for applicant Ms. June Chaudhary very vehemently argued that applicant has challenged the selection of respondents No. 9 to 15 essentially on the ground that his ACRs were substantially superior and better than the ACRs of the said respondents. As per her contention during the years 1999-2000 to 2004-2005 applicant's ACRs are 'Outstanding' except 'Average' ACR for the year 2001-2002 and 'Very Good' for 2003-2004. It is submitted that the 'Average' grading in fact tantamounts to an adverse ACR as it has had adverse impact on his promotion. It has been taken into account for assessment and has resulted in lowering his overall assessment. Had it been conveyed to him, he could have represented and his grading would, in all likelihood, have under gone a change. Thus, the non-communication of the 'Average' (adverse) ACR for 2001-2002 had made a definite difference in the selection process. It t has also been urged that the 'Average' ACR was on the ground of mala fide as applicant was made a victim of political vendetta.
Learned Counsel further pressed the point that applicant's record for the 5 years from 1999 to 2004 shows that he had three 'Outstanding' ACRs and it is untenable that only one ACR for the year 2001-2002 suddenly becomes 'Average'. It is only due to this down grading that he has not been included in the select list. She contended that as the 'Average' ACR has worked to his disadvantage, it acquires the nature of an adverse ACR and was thus required to have been conveyed to enable the applicant to represent there against.
12. The second ground urged by the applicant's counsel is that the 'Average' ACR was actuated by mala fide as applicant became victim of political vendetta. Thus, all the more reason that the remarks in the said ACR should have been communicated to the applicant to give him an opportunity to clarify his position.
13. Reliance was placed on the decision of this Tribunal in Shri Abdul Bar Nawas v. U.O.I. and Ors. OA-1023/1997 decided on 06.02.1998, which was allowed on the ground that relevant material required to be produced before the Selection Committee had not been made available. Learned Counsel also placed reliance on the decision of this Tribunal in OA-2631/2000 (M. Krishna v. U.O.I. and Ors.) decided on 10.09.2004. In this case, the applicant's ACRs had been down graded and integrity certificate was not issued. The O.A. was allowed directing the respondents to either communicate the adverse remarks/downgrading to the applicant for the concerned years with an opportunity to represent or to ignore the same, and by way of holding a review DPC consider the case of the applicant for selection to the IAS by way of appointment on promotion and in the event he is found otherwise fit the same shall be given effect to. In pursuance of this order, the select list of 2003 in the present case was reviewed wherein Sh. M. Krishna was also considered.
14. Ms. Choudhary has further placed reliance on the decision of the Larger Bench of this Tribunal in OA-24/2007 (Ashok Kumar Aneja v. U.O.I. and Ors.) decided on 07.05.2008 wherein it has been held that downgrading from 'Very Good' to 'Good' and similar downgrading does amount to making of an adverse entry and mandatorily these are required to be communicated to the persons who stand to be affected thereby.
15. Shri Naresh Kaushik, counsel defending the respondents (UPSC) reiterated the submissions made in the counter-reply and submitted that the entire selection process has been conducted entirely in accordance with the Rules & Regulations and it is settled law that recruitment of Selection Committee are not to be interfered with unless there is patent error or mala fide. The assessment is based on overall records of the eligible officers. Sh. Kaushik also placed reliance on the decision of Hon'ble Supreme Court in M.V. Thimmaiah and Ors. v. UPSC and Ors. wherein it was held that:
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 recommendations of the Selection Committee like court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine selection of candidates nor is it the business of court to examine each candidate and record its opinion.
16. We would first advert to the Regulations which govern the process of Selection. Regulation-5(1) and (5(2), which read as under:
5(1) Preparation of a list of suitable officer.- (1) Each committee shall ordinarily meet every year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the Service. The number of members of the State Civil Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned; and shall not exceed the number of substantive vacancies on the first day of January of the year in which the meeting is held, in the posts available for them under Rule 9 of the recruitment rules.
5(2) The Committee shall consider for inclusion in the said list, the cases of members of the State Civil Services in the order of seniority in that service of a member which is equal to (three) times the number referred in sub regulation(1):
17. The procedure to be adopted for promotion is contained in Regulations 5(4) and 5(5), which are reproduced as under:
5(4) The Selection Committee shall 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.
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.
18. The above Regulations make it clear that the State Civil Service Officers would be considered as per their seniority and eligibility and would be placed in the select list on the basis of assessment awarded by the Selection Commmittee.
19. The position of the officers mentioned in the O.A. in the Select List is indicated as under:
Year of Select Name (S/Sh.) Position in the Overall relative Position in the List (Size of eligibility list assessment made Select List Select List/Zone by the Selection of consideration Committee 2003(02/06) C. Somashekhar Sl. No. 2 Very Good Included at Sl. No. 1 (Respondent No. 5) 2003(02/06) Narayanaswamy R Sl. No. 5 Very Good Not included* (Respondent No. 8) 2004(02/06) Sl. No. 3 Very Good Included at Sl. No. 2 2004(02/06) Raju R.K. Sl. No. 5 Very Good Not included* (Respondent No. 10) 2005(06/8) -do- Sl. No. 2 Very Good Included at Sl. No. 2 2004(02/06) Vastrad P.S. Sl. No. 6 Very Good Not included* (Res. No. 11) 2005(06/18) Sl. No. 3 Very Good Included at Sl. No. 3 2005(06/18) B. Shivappa Sl. No. 4 Very Good Included at Sl. No. 4 (Res. No. 12) 2005(06/18) Baladevkrishna M Sl. No. 5 Very Good Included at Sl. No .5 K (Res. No. 13) 2005(06/18) Puttaswamy S. Sl. No. 14 Very Good Not included* (Applicant) 2006(01/03) Not in zone for 2006
20. We may now advert to the seniority list produced by the applicant at pages 185-189 in which Applicant's name appears at Serial No. 20. Names of respondents No. 5 to 15 are at Serial Nos. 2 to 13 in the said list. Thus, admittedly all the selected respondents are considerably senior to the applicant.
21. As far as the select list for 2003 is concerned, there were 2 vacancies and as per the Rule, zone of consideration is 3 times. Thus, 6 persons were in the zone of consideration. Admittedly, applicant was not in the zone of consideration for this year where selection was made as follows:
1. Sh. C. Somashekhar (R-5) Sl. No. 2 in Seniority List
2. Sh. Venkannagowda B. Patil (R- 6) Sl. No. 3 in Seniority List
22. Again for the year 2004, there were 2 vacancies for which zone of consideration was 6. Applicant was at Serial No. 17 but he was still outside the zone of consideration. The senior most 2 persons as under were selected:
1. Sh. Niranjan K.R.(R-7) Sl. No. 4 in Seniority List
2. Sh. Narayanaswamy R (R-8) Sl. No. 5 in Seniority List Thus, the applicant has no ground to challenge the selection of respondents No. 5 to 8. This being the admitted position, was fairly conceded by learned Counsel for the applicant.
23. For the year 2005, there were 6 vacancies for which zone of consideration was 18 excluding the 4 appointments made for the year 2003 and 2004 and excluding the age bar persons, applicant figured at Serial No. 14 of the seniority list of this year and was within the zone of consideration. His case has been duly considered by the UPSC. Since all the candidates were found to be equally meritorious, the following 6 senior most persons were recruited and have been appointed:
(i) Sh. G. Ramachandra (R-9) Sl. No. 6 in Seniority List
(ii) R.K. Raju (R-10) Sl. No. 7 in Seniority List
(iii) P.S. Vastrad (R-11) Sl. No. 8 in Seniority List
(iv) B. Shivappa(ST) (R-12) Sl. No. 9 in Seniority List
(v) M.K. Baladevakrishna(SC) (R-13) Sl. No. 11 in Seniority List
(vi) M.E. Shivalingamurthy) (R-14) Sl. No. 12 in Seniority List
24. In the select list for 2006, against only 1 vacancy the person selected Sh. T.A. Parthasarathy figures at Serial No. 13 in the seniority list.
25. We have carefully seen the minutes of the Selection Committee meeting and find that the procedure followed is entirely in accordance with the Regulations. Para 5.4 of the minutes is reproduced hereunder:
The Committee were also informed that the Selection Committee has to go through the records of 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. For making an overall relative assessment, the Committee is not to depend solely on the grading recorded by the reporting/reviewing/accepting authority but is to make its independent assessment of the service records of the eiligible officers. The Selection Committee is to take into account orders regarding appreciation for the meritorious work done by the concerned officers. Similarly it has also to 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.
26. For the select list of 2005, Paras 8.1 and 8.2 are relevant and read as under:
8.1 The Committee were informed that the maximum number of State Civil Service Officers who may be included in the Select List is 06 (Six) against 06 (Six) existing vacancies in the promotion quota of the State Cadre during 2005 as determined by the Central Government in terms of Rule 4(2)(b) of the IAS (Recruitment) Rules 1954 read with Regulation 5(1) of the IAS (Appointment by Promotion) Regulations, 1955.
8.2 The Committee examined the records of the officers (whose names are included in the Annexure-III), who fulfilled the conditions of eligibility, up to the year 2003-04 as the crucial date for reckoning the eligibility of SCS officers is 01.01.2005. On an overall relative assessment of their service records, the Committee assessed them as indicated against their names in the Annexure-III.
27. Annexure-III contains the assessment of 18 officers who were considered for the 6 vacancies for that year. Except 3 officers (Serial Nos. 7, 12 and 13) all the other officers have been graded 'Very Good'. Applicant, who figures at Serial No. 14 is also graded Very Good. On the basis of this assessment, officers from Serial Nos. 1 to 6 of Annexure-III were placed on the select list of 2005. It is not the applicant's case that he was not considered/or was by passed or superseded. He has been duly considered and has also been graded 'Very Good'. However, he could not be included in the select list for 2005 as he was lower down in seniority and only senior most persons were included. We do not see how applicant can claim to be aggrieved on this account.
28. Learned Counsel for applicant has, during the course of arguments, vehemently submitted that applicant has been prejudiced due to the 'Average' ACR for the year 2001-2002, which was not communicated to him and having been considered by the Selection Committee, has impacted his assessment. He is confident that looking to his 'Outstanding' ACRs before 2001-2002 and thereafter, had his ACRS been 'Outstanding', he may have been graded overall 'Outstanding'. In such a situation, it is possible that he could have been included in the select list of 2005,of course, by superseding all the 17 officers senior to him who were graded 'Very Good'.
29. Sh. Kaushik, however, strongly opposed the arguments of learned Counsel for applicant by stating that no officer has been assessed 'Outstanding' in the select list for 2005. Thus, applicant's contention that had he been graded 'Outstanding', he may have by-passed the persons who were senior to him, is far fetched and highly speculative. Sh. Kaushik placed reliance on the decision of Hon'ble Supreme Court in UPSC v. K. Rajaiah and Ors. wherein the matter was regarding promotion from State Police Service to the IPS. In that case an officer belonging to the A.P. Police Service challenged his non-selection to the IPS. The main contention before the Tribunal was that there was no proper assessment of merit by the Selection Committee. He claimed to possess superior merit over the 3 respondents who were senior to him and were selected and appointed by the Government. The Tribunal did not accept the contention of the respondents and dismissed the application by holding that the Selection Committee has taken into consideration all relevant facts in making in depth assessment of the candidate. Tribunal's order was quashed by the Hon'ble High Court of Andhra and the respondents (UPSC) went in SLP before the Hon'ble Supreme Court. Setting aside the High Court's order, Hon'ble Supreme Court upheld the order of the Tribunal by holding that the Selection Committee is well within its power to classify candidates and is not legally required to record reasons thereof. It was also held that Courts should not interfere with the evaluation done by the Commission on a consideration of relevant material.
30. Coming now to the grounds taken by applicant, the first ground on which applicant has sought quashing of the impugned order is regarding selection of respondent No. 5 (Sh. C. Somashekhar) particularly on the ground that criminal case under the Prevention of Corruption Act was pending against him. However, as clearly emerges from the records, no prosecution sanction was given by the State Government as is clear from letter dated 05.08.2006 (Annexure R-6) of the State Government. Thus the contentions of the applicant in respect of Sh. Somashekhar are baseless. In any case, Sh. Somashekhar who stood at Serial No. 2 of the Seniority List was selected in the select list for 2003 for which applicant was not even in the zone of consideration.
The next ground of applicant is of mala fide. It is settled position that allegation of mala fide must be specific and the burden of proving mala fide lies solely on the person making the allegation. Also the person against whom mala fide is alleged, must have been made a party. As these basic parameters have not been fulfilled, we have to reject the contention of the applicant in this regard as well.
It was very strongly urged by learned Counsel Sh. Naresh Kaushil appearing for UPSC as well as the counsel appearing for State of Karnataka and counsel for private respondents that applicant's contention has no legs to stand on when the person concerned (Deputy Chief Minister) has not been made a party. We find considerable force in the submissions on this account.
Another ground taken by applicant is that the service record of certain candidates were manufactured/created at the instructions of respondents Nos. 2 and 3 subsequently at the time of selection only. We have seen the minutes of the Selection Committee meeting held on 02.11.2006. However, we do not find anything either from the records produced by the applicant or otherwise to substantiate the allegation or from the minutes of the Selection Committee meeting which can give rise to any basis for such an allegation. This ground being without any basis or substance is rejected.
31. This leaves the main ground of the applicant, namely down grading of his ACR to 'Average' and non-communication of the same. In this connection Shri Kaushik, learned Counsel for UPSC cited the decision of Hon'ble Supreme Court in Dev Dutt v. U.O.I. and Ors. Civil Appeal No. 7631 of 2002 decided on 12.05.2008 wherein the grievance of the applicant was that he was not communicated 'Good' entry for the year 1993-1994 and which adversely affected his promotion to the rank of Superintending Engineer. The Benchmark required was 'Very Good'. Had he been communicated that entry he would have an opportunity of making a representation and if that representation was allowed he would become eligible for promotion. In Para-39 and Para-48, the following has been held:
Para-39 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.
Para-48 We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment.
32. Having regard to the facts and circumstances of the case, we are of the considered view that the only argument on which the applicant can claim any relief is that the 'Average' ACR was not communicated to him and was taken into consideration by the Selection Committee even while grading him overall 'Very Good' along with all the other officers. In the light of the ruling of the Hon'ble Supreme Court and the Larger Bench of this Tribunal, we think that it would meet the ends of justice if the Respondent No. 3 (State of Karnataka) communicate the said report to the applicant and take an appropriate decision thereon, after giving applicant an opportunity to represent against the same in accordance with the Rules. In the event of any change in his record, procedure for review would follow in accordance with law. O.A. is disposed of with the directions as above. No order as to costs.