Andhra HC (Pre-Telangana)
K. Rajaiah vs Union Of India (Uoi) And Ors. on 6 August, 2003
Equivalent citations: 2003(6)ALD106, 2003(5)ALT486
JUDGMENT G. Bikshapathy, J.
1. The writ petition is directed against the orders passed by the learned Central Administrative Tribunal in O.A. No. 443 of 2002, dated 24-2-2003.
2. The writ petitioner is the applicant before the Tribunal. The petitioner was initially appointed as Sub-Inspector (Reserve) in 1968 and subsequently he was transferred as Sub-Inspector (Civil) in 1976. He was promoted as Inspector in 1983 and on 18-10-1986 he was promoted as Deputy Superintendent of Police on out of turn basis. With effect from 1-1-1995, the petitioner was further promoted as Additional Superintendent of Police. He was further promoted as Superintendent of Police (Non-Cadre) with effect from 17-10-2000. Petitioner submits that as per the Indian Police (Appointment by Promotion) Regulations, 1955 (for short 'Regulations'), he became eligible to be included in the select list for confirmation of I.P.S. However, for various reasons, the Selection Committee did not meet. Finally, Selection Committee met for preparation of select list for the years 1996-97, 1998 and 1999 on 25-12-1999 and prepared the same. However, the said select list was cancelled by virtue of the orders passed by the Tribunal and the authorities were directed to prepare fresh select list. Accordingly, Selection Committee met on 20-8-2001 and prepared select list for the aforesaid three years. But, however, we are concerned with the select list for the year 1999 and in fact the petitioner has challenged the same to the extent of the said list in this writ petition. It is the case of the petitioner that he was graded "Outstanding" for four years out of five years period and for one year he was graded "very good". Yet, the Selection Committee graded the petitioner as "very good" and the same was approved by the U.P.S.C. and ultimately, notification was issued by the Government of India dated: 21-1-2002 and 15-2-2002. The said notification was challenged by the petitioner before the Central Administrative Tribunal in O.A. No. 443 of 2002. The learned Tribunal by an order dated 24-2-2003 dismissed the O.A. filed by the petitioner, against which the present writ petition has been filed by the petitioner.
3. The learned Senior Counsel Mr. E. Manohar appearing for the petitioner submits that the action of the official respondents in preparing the select list is illegal and contrary to the provisions and regulations, more especially Regulation No. 5 and that Selection Committee has not properly applied its mind to the case of the petitioner and thus his case was meted out with unfair treatment. It is the further case of the petitioner that the officer had maintained the excellent and outstanding track record throughout his service and not placing such an outstanding officer in the select list and placing in less meritorious candidates is wholly illegal and arbitrary offending Articles 14 and 16 of the Constitution of India. Therefore, he submits that the order of the Tribunal is liable to be set aside.
4. On the other hand, the learned Counsel for the official respondents and also the unofficial respondents submit that the preparation of the panel is in accordance with the Rules and Regulations and any interference with the select panel prepared by the Selection Committee as approved by the U.P.S.C. and accepted by the Central Government would amount to exercising the jurisdiction in excess of the powers of judicial review. The Tribunal has considered the respective merits also and held that the petitioner was not entitled for any relief and therefore, the impugned order is legal and valid and no interference is warranted. Hence, the writ petition is liable to be dismissed.
5. The issue that arises for consideration is whether the order of learned Central Administrative Tribunal is valid ?
6. The facts are not much in dispute. Moreover, we are only concerned with the selection process undertaken by the Selection Committee as affirmed and approved by the U.P.S.C. and Central Government -respectively in respect of select list 1999 only. The principal grievance of the petitioner is that his A.C.R. for the previous years were outstanding/very good while that of the respondents viz. Respondent Nos. 5, 6 and 7 have no comparison and thus he stakes superiority in ranking in A.C.Rs. It is also his contention that his track record in service was equally excellent. The following are the details of the awards/rewards:
Nos.
(a) Cash Rewards 87
(b) Commendations 21
(c) Appreciations 13
(d) Good Service Entries 111
(e) Meritorious Service Entries 2 Total 234 (1) Chief Minister's Shield together with Cash Reward of Rs. 1,000/- as the best Law and Order Sub-Inspector of Andhra Pradesh for the year 1981;
(2) As Circle Inspector of Police I got accelerated promotion as Deputy Superintendent of Police for my outstanding performance in seizing ten 303 Rifles from the possession of dreaded extremist Kondaveeti Ram Reddy, Pativala Village, Nalgonda District, kingpin to supply five arms to P.W.G. vide G.O. Ms. No. 633, dated 18-10-1986.
(3) Seva Pathakam as Deputy Superintendent of Police, Adilabad, for meritorious service vide G.O. Ms. No. 600, dated 31-10-1999 (4) Uttama Seva Pathakam as Additional Superintendent of Police in recognition of dedication of duty and meritorious service vide G.O. Ms. No. 446, dated 1-11-1998.
(5) Government of Andhra Pradesh granted an advance increment to me in recognition of my exceptional meritorious service vide G.O. Ms. No. 446, dated: 1-11-1998 for my outstanding tasks.
(6) Hon'ble Chief Minister awarded "Vishishta Seva Pathakam" to me on 1-11-1998 for my outstanding tasks.
(7) His Excellency the President of India awarded Indian Police Medal for meritorious service vide Memo. No. 1365/3C-B/A 12000-12, dated 12-2-2001 of General Administration (SC.B) Department of Deputy Secretary to Government of India, New Delhi, Cr.No.11019/ 19/2000-PMA, dated 24-4-2001."
We do not have the achievements of respondents No. 5 to 7. Moreover, the Government also did not specify in the counter filed before the Central Administrative Tribunal furnishing the details of such achievements of the above officers.
7. The learned Central Administrative Tribunal after referring to various judgments of the Apex Court came to the conclusion that the Tribunal while exercising the judicial review cannot convert itself into an appellate authority nor can it decide the matter, as an original authority. We need not burden this judgment with catena of decisions in this regard. Suffice it to say that the undermentioned cases cover the point in issue.
Kuldip Chand v. State of H.P. , National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman, , Anil Katiyar v. Union of India, 1997 (1) SLR 153) Nutan Arvind v. Union of India, , U.P.S.C. v. H.L Dev, , Abasaheb Solunke v. B.S. Mahajan, and Smt. Anil Katiyar v. Union of India, (1997) 1 SLR 153.
8. In fact, the learned Counsel for the respondent fairly stated before the Tribunal that the Tribunal can interfere with the selection made by the Selection Committee where:
(i) there is material irregularity in the constitution of Selection Committee,
(ii) it is established that the procedure followed vitiated selection, and
(iii) on the ground of proved mala fides and arbitrary exercise of power.
9. The learned Senior Counsel submits that the selection process ought to conform to the statutory rules framed under the Regulations. No challenge is made to the constitution of the Selection Committee. The eligibility of the petitioner as well as respondents 5 to 7 for inclusion in the list and for consequential consideration is not in dispute. However, the learned Senior Counsel submits that official respondents have violated Regulation 5. He contends that under Sub-regulation (4) of Regulation 5, the State Government is required to place before the Selection Committee service record of all the officers to assess the grading of the officers. In the instant case only A.C.Rs. of the officers were placed before the Selection Committee and the service record of the officers were withheld and thus it constituted incurable infraction of said rule, which resulted great prejudice to the case of the petitioner. He submits that consequent on the Order of the Central Administrative Tribunal in O.A. No. 1971 of 1999 and Batch, dated: 8-2-2001 which became final, the Selection Committee was required to prepare select list for the years 1996-97, 1998 and 1999. In that regard, the State Government by Memo No. 284/SC.C/ 1999, dated: 23-7-2001 informed the Director General and Inspector General of Police to forward the P.Fs. of the officers concerned including the petitioner and unofficial respondents. He submits that what was furnished was only A.C.Rs. and not service record. Even in the Memo it is clearly stated that A.C.Rs. of the officers were sought for. He proceeds further by submitting that even before the Tribunal when the records perused by the Selection Committee were directed to be produced by the Stare Government, only A.C.Rs. of the officers were produced before the Tribunal. He refers to the observation of the Tribunal in its" order. Thus, he submits that A.C.Rs. of the officers are annual features where grading is given by the higher officers. But, the achievements of the officers, such as awards, rewards, commendations and medals etc., right from entry of the officer would be available in the Service Register of the officers. Therefore, grading the officer on the sole basis of A.C.Rs. is illegal and contrary to Rules. Such a grading will not reflect the assessment of overall performance of the officer. He also submits that the petitioner secured "outstanding" grading from 1996 to 1999 and in 1995 he secured "Very good" grading. He submits that in fact in one of the outstanding grading, the petitioner was identified as 'distinctly outstanding', and in 1995 A.C.Rs. he was rated as 'excellent' officer. Whereas the unofficial respondent lag far behind the gradings obtained by the petitioner. In such a situation, the learned I Senior Counsel submits that even allotting "very good" grading is arbitrary and mala fide. Hence, the learned Counsel submits that the process of selection is vitiated and the learned Tribunal failed to note this crucial aspect. Hence, the order of the learned Tribunal is liable to be set aside.
10. The learned Government Pleader and the learned Standing Counsel for the Central Government submits that there is no illegality or irregularity in the process. The Select Committee properly graded the officers on the basis of the service records. It would be outside the purview of this Court to examine whether grading was properly assigned or not, more especially when the Select Committee was constituted with officers of high status and responsibility. Thus, they submit that there are no grounds to interfere with the order of the learned Central Administrative Tribunal.
11. Mr. P.V. Krishnaiah, appears for Respondent No. 6. None appeared for Respondent No. 5 and notice to respondent No. 7 was refused. In fact these respondents, who were Respondent Nos. 16, 17 and 18 in O.A. did not file counters also, obviously so, as much turns out on the basis of the counters filed by the State Government and U.P.S.C. and Central Government.
12. For proper appreciation of the matter, it is necessary to extract Regulations 5 and 7, which reads thus:
"5. Preparation of a list of suitable officers :--(1) Each Committee shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of the State Police Service, as held by them to be suitable for promotion to the Service. The number of members of the State Police Service to be included in the list shall be calculated as the number of substantive vacancies anticipated in the course of the period of 12 months, commencing from the date of preparation of the list, in the posts available for them under Rule 9 of the Recruitment Rules plus twenty per cent of such number or two whichever is greater.
Explanation .---In case of Joint Cadres a separate select list shall be prepared in respect of each State Police Service, the size of each select list being determined in the manner indicated above.
(2) The Committee shall consider for inclusion in the said list, the cases of members of the State Police Service in the order of seniority in that service of a number which is equal to three times the number referred to in Sub-regulation (1):
Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the select list and in such a case the Committee shall consider all the eligible officers;
Provided further that in computing the number for inclusion in the field of consideration, the number of officers referred to in Sub-regulation (3) shall be executed;
Provided also that the Committee shall not consider the case of a member of the State Police Service unless on the first day of April of the year in which it meets he is substantive in the State Police Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent thereto by the State Government.
Explanation .---The powers of the State Government under the third proviso to this sub-regulation shall be exercised in relation to the members of the State Civil Service of a constituent State, by the Government of the State.
(3) The Committees shall not consider the cases of the members of the State Police Service who have attained the age of 54 years on the first day of April of the year in which it meets;
Provided that a member of the State Police Service whose name appears in the select list in force immediately before the date of the meeting of the Committee shall be considered for inclusion in the fresh list, to be prepared by the Committee, even if he has in the meanwhile attained the age of 52 years:
Provided further that a member of the State Police Service who has attained the age of fifty-four years on the first day of January of the year in which the Committee meets shall be considered by the Committee if he was eligible for consideration on the first day of April of the year or of any of the years immediately preceding the year in which such meeting is held but could not be considered as no meeting of the Committee was held during such preceding year or years.
(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) The list shall be prepared by including the required number of names, first from among the officers finally classified as 'outstanding' then from among 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 Police Service:
Provided that the name of any officer so included in the list shall be treated as provisional of the State Government, withholds the integrity certificate in respect of such officer of any proceedings are contemplated or pending against him or anything adverse against him has come to the notice of the State Government.
(6) The list so prepared shall be reviewed and revised every year."
7. Select List :--(1) The Commission shall consider the list prepared by the Committee along with--
(a) the documents received from the State Government under Regulation 6;
(b) the observations of the Central Government and unless it considers any change necessary, approve the list.
(2) If the Commission consider it necessary to make any changes in the list received from the State Government the Commission shall inform the State Government of the changes proposed and after taking into account the comments, if any, of the State Government may approve the list finally with such modification, if any, as may, in its opinion, be just and proper.
(3) The list as finally approved by the Commission shall from the select list of the members of the State Police Service.
(4) The select list shall ordinarily be in force until its review and revision, effected under Sub-regulation (4) of Regulation 5 is approved under Sub-regulation (1), or, as the case may be, finally approved under Sub-regulation (2):
Provided that no appointment to the service under Regulation 9 shall be made after the meeting of the fresh Committee to draw up a fresh list under Regulation 5 is held;
Provided further that, in the event of any new service or services being formed by enlarging the existing State Police Service or otherwise being approved by the Central Government as the State Police Service under Clause (j) of Sub-regulation (1) of Regulation (2), Select List in force at the time of such approval shall continue to be in force until a new list prepared under Regulation 5 in respect of the members of the notice State Police Service, is approved under Sub-regulation (1) or, as the case may be, finally approved under sub-regulation;
Provided further that in the event of a grave lapse in the conduct or performance of duties on the part of any member of the State Police Service included in the select list, a special review of the select list may be made at any time at the instance of the State Government and the Commission may, if it so thinks fit, remove the name of such member of the State Police Service from the select list.
(5) Every person included in the list who has not attained the age of 32 years on the date on which the Select List is finally approved by the Commission shall undergo such training in the Sardar Vallabhai Patel National Police Academy, Hyderabad, the State Training Institutions and other established Training Institutions in the country for such period as the Central Government may consider necessary."
13. A reading of the above provisions, it makes clear that the Selection Committee duly constituted under Regulation 3 is required to appropriately grade the officers into "outstanding", 'Very good", "good" and "unfit" keeping in view the overall assessment of the service record of the officers. The State Government, for this purpose, has to place the service record of all the officers to enable the Selection Committee to assess the overall performance including merit and ability. The list prepared by the Selection Committee is forwarded to the U.P.S.C., who prepare the select list basing on the records furnished to them by the State Government in accordance with the Regulation 7. Therefore, the list is again scrutinised at the U.P.S.C. level. The select list finally prepared by the U.P.S.C. is final list basing on which the Central Government issues notification in accordance with the Regulation 9.
14. The Selection Committee had perused the A.C.Rs. of officers concerned and the comparative final gradings are as follows:
COMPARATIVE FINAL GRADINGS Sl. No. Name of the officer 1995 1996 1997 1998 1999
1.
K. Rajaiah (Petitioner) Very Good Outstanding Outstanding Outstanding Outstanding
2. B.L. Sujatha Rao (Respondent No.5) Very Good Very Good Very Good Outstanding Outstanding
3. Sri Ch. Ramkoti (Respondent No.6) Very Good Very Good Outstanding Average Outstanding
4. Sri J.G.J. Murali (Respondent No.7) Very Good Outstanding Very Good Good Very Good
15. However, in respect of Mr. Ramkoti (Respondent No. 6) the grading in the A.C.R. "average" was expunged by the Government. But, no substitute grading was given. In such a situation, it is not understood as to what grading was assigned to the officer in 1998. No rules are also forthcoming in this regard.
16. As regards the grading assigned to the officers, there is .no controversy about it and it was also not disputed by the State Government. Admittedly, the petitioner has four outstanding consecutive gradings from 1996 to 1999, the other officers did not have the same. As submitted by the learned Senior Counsel Mr. E. Manohar, the petitioner was graded "distinctly outstanding" for 1998 and "excellent" for 1995. The superior grading acquired by the petitioner is writ large. At the same time, this Court would not trench into the realm of the Selection Committee as to how it graded the officer as "very good" etc., when the petitioner consistently secured outstanding or near outstanding grading. But, at the same time, the Selection Committee is expected to act fairly and reasonably. It should not only act fairly and reasonably, but it should also appear to have acted fairly and reasonably. Fairness in action and reasonability in consideration ought to conform to the settled principles. When the officer is sought to be given a lesser grading by the Selection Committee than what he secured, recording reasons would be in consonance with the principles of fair play in action as observed by the Apex Court in National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman, .
17. The expression "duty to act judicially" is now interpreted as "duty to act judicially and fairly". This requirement is now essential while exercising the administrative power as well as quasi-judicial power. Even prior to Ridge v. Baldwin, 1964 AC 40 = (1963) 2 All.ER 66, Subba Rao, J. as he then was, dissenting with majority in Province of Bombay v. Khushaldas S. Advani, AIR 1959 SC 222, anticipated the development of law on the point and observed:
"The concept of a 'judicial act' has been conceived and developed by the English Judges with a view to keep the Administrative Tribunals and authorities within bounds. Unless the said concept is broadly and liberally interpreted, the object will be defeated, that is, the power of judicial review will become innocuous and ineffective. The comprehensive phraseology of Article 226 of the Constitution supports rather than negatives the liberal interpretation of that concept. The argument that the Court shall not obstruct the smooth working of the administrative machinery does not appeal to me, for the simple reason that the exercise of the power of judicial review or, to be more precise, the existence of such power in Court - for hardly one act in thousands comes before Court- eliminates arbitrary action and enables the administrative machinery to function without bias or discrimination. With this background, the principles, as I apprehended then, may be concisely stated thus: Every act of an administrative authority is not an administrative or ministerial act. The provisions of a statute may enjoin on an administrative authority to act administratively or to act judicially or to act in part administratively and in part judicially. If policy and expediency are the guiding factors in part or in whole throughout the entire process culminating in the final decision, it is an obvious case of administrative act. On the other hand, if the statute expressly imposes a duty on the administrative body to act judicially, it is again a clear case of a judicial act. Between the two there are many acts, the determination of whose character creates difficult problems for the Court. There may be cases where at one stage of the process the said body may have to act judicially and at another stage ministerially. The rule can be broadly stated thus: The duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority or other indicia afforded by the statute."
18. In A.K. Kraipak v. Union of India, , the Supreme Court observed thus:
"The dividing line between an administrative power and a quasi-judicial power is quite thin and being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a Welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously."
19. In H.K. (An infant), 1967 (1) All.ER 226, an Immigration Officer refused to admit a boy from Pakistan on the ground that he appeared to be over sixteen years of age and hence, was not entitled to entry. No hearing was afforded before arriving at the decision. Parker, C.J. held that even if an Immigration Officer was acting administratively and not in a judicial or quasi-judicial capacity, "he must nevertheless act fairly".
20. In Pearlberg v. Varty, 1972 (2) All.ER 6, it was held thus:
"A Tribunal to whom judicial or quasi-judicial functions are entrusted is held to be required to apply those principles (i.e., the rules of natural justice) in performing those functions unless there is a provision to the contrary. But, where some person or body is entrusted by Parliament with administrative or executive functions there is no presumption that compliance with the principles of natural justice is required although, as 'Parliament is not to be presumed to act unfairly', the Courts may be able in suitable cases (perhaps always) to imply an obligation to act with fairness."
21. In Keshav Mills Company Limited v. Union of India, , the Supreme Court held thus:
"The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yardstick in this manner. The concept of natural justice cannot be put into a straightjacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where Administrative Officers are concerned, the duty is not so much to act judicially as to act fairly."
22. In M.S. Natty Bharat Engineering Company Limited v. State of Bihar, , the Supreme Court invoked the doctrine of "acting fairly" and stated thus:
"Fairness, in our opinion, is a fundamental principle of good administration. It is a rule to ensure the vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant considerations. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. To use the time hallowed phrase that 'justice should not only be done but be seen to be done' is the essence of fairness equally applicable to administrative authorities. Fairness is thus a prime test for proper and good administration. It has no set from a procedure. It depends upon the facts of each case...... Indeed, it cannot have too much elaboration of procedure since wheels of administration must move quickly."
Quoting the observations of Paul Jackson, the Court said:
"It may be noted that the terms 'fairness of procedure', 'fair play in action', 'duty to act fairly' are perhaps used as alternatives to 'natural justice' without drawing any distinction. But, Prof. Paul Jackson points out that 'such phrases may sometimes be used to refer not to the obligation to observe the principles of natural justice but, on the contrary, to refer to a standard of behaviour which, increasing, the Courts require to be followed even in circumstances where the duty to observe natural justice is inapplicable."
23. Wade in Administrative Law (7th Edn.) pp.315-16 stated thus:
"The "acting fairly" doctrine proved useful as a device for evading confusion which prevailed in the past. "The Courts now have two strings to their bow." An administrative act may be held to be subject to the requirement and observance of natural justice either because it affects rights or interests and hence would involve a "duty to act judicially" or it may be administrative, pure and simple, and yet, may require basic procedural protection, which would involve "duty to act fairly".
24. So also, De Smith in Judicial Review of Administrative Action (5th Edn.) p.399, stated thus:
"The principal value of the introduction of the duty to act fairly into the Court's vocabulary has been to assist them to extend the benefit of basic procedural protections to situations where it would be both confusing to characterise as judicial or even quasi-judicial, the decision-makers' functions, and inappropriate to insist on a procedure analogous to a trial."
25. Thus, the requirement of 'duty to act fairly', 'fairness in action' and 'fair procedure' are held to be inevitable requirements in quasi-judicial, judicial and administrative actions. The expression 'fairness' implies impartiality and reasonableness. The principles are required to be followed by the body vested with the powers referred to above irrespective of its status and composition. Any deviation of the solemn principles would vitiate the process and the consequential result. Though the Committee consists of officers of high eminence and integrity, yet if an officer of 'outstanding' record is down graded 'very good' without there being any tangible reasons, such grading, can be said to be eclipsed with intransperancy and nullifies the confidence and credibility reposed in the apex bodies while awarding the gradings. At the same time, it cannot be said that the Committee had acted wilfully and deliberately as mala fides and motives cannot be attributed save in the exceptional cases. But, a mere omission to consider relevant material will cause grave prejudice to the service career of officers.
26. Applying the above principle, we hold that assessing the grading of Officers without the requisite material as required by the Regulation 5(4) is a fatal exercise being in direct conflict with the doctrine of "duty to act fairly". Thus, in the instant case, we find that both fairness in action and fair procedure are lacking.
27. Again we are also not in agreement with the contention of the learned Government Pleader for State Government yet on another point. The Selection Committee is enjoined upon to grade the officers on the basis of service records as per sub-regulation 4 referred to supra. The Service Record stands on a different footing than an A.C.R. Both the documents are to be maintained by the Head of the Office as required under F.R. 74. Paras 3 and 6 of F.R. are relevant which are extracted below:
"3. Annual Attestation of Service Books/ Rolls .---It shall be the duty of every Head of the Office to initiate action to show the service books/rolls to Government servants under his administrative control every year and to obtain their signature therein in token of their having inspected the service books/ rolls. A certificate to the effect that he has done so in respect of the preceding financial year should be submitted by him to his next superior officer by the end of every September. All Heads of Offices should issue notices to all the Government servants under their control to get personally their service books/rolls verified and brought up-to-date. The Government servants shall inter alia ensure before affixing their signature that their service have been duly verified and certified as such. In the case of a Government servant on foreign service, his signature shall be obtained in his service books/rolls after the Head of the Department has made therein necessary entries connected with his foreign service.
6. The maintenance of Service Books:-In the service book, every step in a Government servant's official life, including temporary and officiating promotion of all kinds, the date on which the period of probation is satisfactorily completed, increments and transfers and leave of absence taken, should be regularly and concurrently recorded, each entry being duly verified with reference to the departmental orders, pay bills and leave statements and attested by the head of the office. If the head of the office has a gazetted assistant, he may delegate the duty of attesting the entries to such an assistant. If the Government servant is himself the head of an office, the attestation should be made by his immediate superior, Any special test/examination passed by the Government servant should be entered in the service book, together with a reference to the number and date of the notification directing the publication of the names of the successful candidates in that test, and the part and date of the Andhra Pradesh Gazette, in which the notification was published. Officiating and temporary service and leave taken prior to first substantive appointments to a permanent post should also be recorded in the service book and duly attested after verification. The head of the office should also invariably give necessary particulars with reference to Articles 370 and 371 of the Civil Service Regulations with a view to enable the Audit office to decide later on by reference merely to such particulars whether the temporary or officiating service will qualify for pension or not. The date of birth should be verified with reference to the entries in the applications, for appointment as accepted by the Service Commission and transmitted to the appointing authorities. In the case of a Government servant the year of whose birth is known but not date, the 1st July should be treated as the date of birth. When both the year and the month of birth are known but not the exact date, the 16th of the month should be treated as the date of birth. Left hand thumb and fingerprints of the illiterate Government servant should be obtained in the space provided for the purpose in the service book itself. The impressions should not be taken on separate slips of paper and pasted to the service book."
28. Thus, while the A.C.R. is the annual appraisal/performance of the officer as assessed by the higher officers, the Service Register contains the minutous track record of the officer as confirmation, increments, promotion, fixation of pay, release of increments, punishments, awards and rewards etc. The procedure to be observed by the D.P.C. as approved by the U.P.S.C. is stipulated in the office Memo No. 22011/77 98-Estt. (D), of Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), dated: 6-10-2000, which reads thus:
"OFFICE MEMORANDUM .
Subject :--Procedure to be observed by the Departmental Promotion Committees (DPCs) - Number of Confidential Reports to be considered by the DPCs.
The undersigned is directed to invite reference to the Department of Personnel and Training Office Memorandum No. 22011/5/86-Estt.(D), dated April 10,1989 on the subject cited above. Para 6.2.1 of the instructions lay down the procedure to be followed by the DPCs with regard to the Confidential Reports (CRs) to be considered for the assessment of the suitability of the officers in the zone of consideration. Sub-para (b) of the aforesaid para provides that "the DPC should assess the suitability of the officers for promotion on the basis of their service record and with particular reference to CRs. for five preceding years. However, in cases, where the required qualifying service is more than five years, the DPC should see the record with particular reference to the C.Rs for the years equal to the required qualifying service. (If more than one C.R. has been written for a particular year, all the C.Rs. for the relevant years shall be considered together as the C.R. for one year)"
The Fifth Central Pay Commission, in Chapter 21 (para 21.18), on 'Performance Appraisal' has, inter alia, recommended as follows:
"Normally, the Confidential Reports of the immediately preceding five years alone should be considered by Departmental Promotion Committees to assess the suitability of the employees for career advancement and other benefits unless reference to reports of earlier years is considered to be absolutely essential."
The Union Public Service Commission has also been of the view that the DPC should assess only last five C.Rs. in all cases of promotion irrespective of the number of years of qualifying service prescribed in the Recruitment/Service Rules so as to maintain uniformity in the promotion procedure, provide realistic and accurate assessment of recent performance, lighten the burden on the DPCs and also to make its working less cumbersome.
3. The aforesaid recommendation of the Fifth Central Pay Commission has been examined by the Government and it has been decided to accept it. Accordingly, the provisions of para 6.2.1(b) as quoted above, may be substituted by the following:
"The DPC should assess the suitability of the employees for promotion on the basis of their service records and with particular reference to the C.Rs. for five preceding years irrespective of the qualifying service prescribed in the Service/Recruitment Rules. The preceding five years for the aforesaid purpose shall be decided as per the guidelines contained in the DOP & T O.M. No. 22011/ 9/ 98-Estt. (D), dated September 8, 1998 which prescribe the Model Calendar for DPC read with O.M. of even number dated June 16, 2000. (If more than one C.R. have been written for a particular year, all the C.Rs. for the relevant years shall be considered together as the C.R. for one year)."
4. These instructions would be required to be followed by the Departmental Promotion Committees convened on or after November 15, 2000.
5. Ministries/Departments are requested to bring these instructions to the notice of all the concerned including their attached/ subordinate offices."
29. Therefore, it is incumbent on the part of DPC to assess the suitability of the officer for promotion on the basis of Service Register with special refrenece to CRs. for five preceding years. In the instant case, what was sought for by the Government from the Director General and Inspector General of Police were the A.C.Rs of the SP Officers. We do not find from the letter dated 23-7-2001 that the Government wanted Service Record of Officers to be placed before the Committee. The letter of Government only refers to A.C.Rs (PFs.) of the officers concerned. No record is also forthcoming to the effect that in response to the requisition of the State Government dated 23-7-2001, the Director General of Police had sent both P.Fs, and SRs of the officers. The Government have not filed any counter controverting the issue. However, adopted the counter filed before the Tribunal, wherein they narrated the rule position. The Tribunal referred to the counter in para 9 of the impugned orders reading thus:
"It is further submitted by the 2nd respondent that the Selection Committee takes into consideration the service records (as provided by the State Government) of the officers included in the eligibility list and on an overall relative assessment of the same makes its assessment on the relative merits of each candidate. The A.C.Rs. of eligible officers are the basic inputs on the basis of which eligible officers are categorised as 'Outstanding', 'Very Good', "Good" and 'Unfit' in accordance with the provisions of Regulation 5(4) of the Promotion Regulations. The Selection Committee is not guided merely by the overall grading that may be recorded in the A.C.Rs. by the Reporting/ Reviewing officer and Accepting Authority, but in order to ensure justice, equity and fair play makes its own assessment of Officers on the basis of an in depth examination of their service records and their performance as reflected under various columns recorded in their A.C.Rs. by the Reporting/Reviewing Officer/Accepting Authority in the A.C.Rs. for different years and then only, it finally arrives at the classification/grading to be assigned to each eligible Officer in accordance with the provisions of the Promotion Regulations. While making an overall assessment, the Selection Committee takes into account Orders regarding appreciation for meritorious work done by officers under consideration. Similarly, the selection Committee also keeps 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 by the State Government. The Selection Committee goes through the service records of each of the eligible officers with special reference to the performance of the Officer during the years preceding the year for which the select list is prepared and makes an overall relative assessment of the officers in the zone of consideration in terms of Regulation 5(4) of the Promotion Regulations. The procedure adopted by the Selection Committee is uniformly and consistently applied to all States/Cadres for promotion of State Service Officers to the All India Services. Under the provisions of the IPS (Appointment by Promotion) Regulations, 1955, only the Selection Committee is competent to assign gradings to the officers. By claiming that he is the most meritorious person, the applicant is trying to substitute his own judgment to that of a statutorily constituted Selection Committee. The selections have been done strictly in accordance with the provisions of the Promotion Regulations. The assessments made by the Selection Committee in a just and equitous manner is not open to challenge by any individual/authority.
Sri C.V. Seshagiri Rao (Respondent No. 11) and P. Kishan Rao (Respondent No. 12), who had retired from service on the date of the meeting of the Review Selection Committee on 28-8-2001, were in service on the crucial dates for the select lists of 1996-97 and 1998 respectively and were also eligible for consideration by the Committee in terms of the provisions of the IPS Promotion Regulations. The Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, who are the nodal authority for interpretation of the provisions of the Promotion Regulations, vide their letter No. 14015/20/97-AIS (I), dated 23-2-2000, had also given a clarification stating that "every SCS Officer who was eligible and available for consideration and would have been considered on the due dates for the respective years, had the Selection Committee met well in time on such dates would be entitled to be considered by the Committee irrespective of his present status, for the reason that the right of consideration for promotion cannot be forfeited in retrospect due to turn of events occurring subsequently in the case of such officers". Therefore, the Selection Committee rightly considered the aforementioned retired officers when they met on 28-8-2001 to review the select list of 1999 and to prepare the year-wise select lists of 1996-97,1998-1999, in pursuance to the orders of the High Court in Writ Petition No. 11322 of 2001 (U.P.S.C. v. E. Purnaprakash and Ors.), as they were eligible and in service on the respective crucial date of eligibility in accordance with the provisions of the Promotion Regulations. The aforesaid two SPS Officers were appointed to the IPS by the Government of India, Ministry of Home Affairs notification dated 26-3-2002 in pursuance of the judgment dated 11-3-2002 of this Tribunal in O.A. Nos. 229 and 230 of 2002. The 2nd respondent therefore, prayed for the dismissal of this O.A."
30. Therefore, it is noticed from the contents of the counter that nowhere it was stated that the A.C.Rs. and S.Rs. of the officers were taken into consideration while grading the officers. It was also accepted that for categorising the officers, the A.C.Ps. were treated as basic inputs.
31. The Tribunal while observing that it was not permissible for it to compare the respective merits, yet, it was inclined to satisfy whether the assessment made by the Review Select Committee was proper. In that process also, the tribunal could only peruse the A.C.R. of the officers and not the service record. The following is the extract from the order:
"Though it is not permissible for this Tribunal to judge the comparative merit of the candidates on the basis of the A.C.Rs. pertaining to them, we have only looked into the A.C.Rs. to prima facie find out whether there are justifiable reasons for the Review Selection Committee to assess officers in the manner done by them and we are satisfied that there are justifiable reasons in the said assessment made by them in respect of the candidates included in the eligibility list. Further, one significant aspect noticed in this case is that only the seniors to the applicant were promoted to the IPS cadre in the selections made to fill up the vacancies of the years 1998 and 1999 by the Selection Committee on finding that they were either found to be more meritorious or of a equal merit of the applicant on thorough scrutiny of the A.C.Rs. pertaining to them for the relevant years and on making comparative assessment.......... On careful scrutiny of the A.C.Rs. of the applicant and other eligible candidates in the list, we are satisfied that the Official respondents have considered the merits and demerits of each and every candidate while making promotion to the IPS and the procedure adopted in preparing the list of candidates for IPS is in accordance with the law and well established procedure prescribed under law."
32. Thus, it is clear that what was considered by the Selection Committee was the A.C.Rs. only and not the Service Records. On directions by this Court, the Government produced the records. The crucial file in which the Committee categorised the officers has not been made available. The said file only clears the mist as to whether the Committee considered only A.C.Rs. or the S.Rs. also. We have to necessarily draw adverse inference in this regard. The U.P.S.C. produced extract in file U.P.S.C. File No. 7/ 1(2)72001-AIS to contend that service records were also perused by the Committee, we are not convinced that the Committee constituted under Regulation 3 had the opportunity of perusing A.C.Rs./S.Rs. while making overall assessment. Hence, considering the sequence of events it cannot be said that there was objective consideration of relevant material for assessing the overall performance of the officer, which is sine qua non for allotting respective gradings. It is one thing to say that the S.Rs. and A.C.Rs. of the officers have been placed before the Committee on the basis of these documents the categorisation was made. But, it is another thing to say that the Committee can categorise on the basis of A.C.Rs. The later procedure conflicts with Sub-regulation (4) of Regulation 5. The learned Tribunal failed to analyse and examine this issue and thereby committed an error apparent on the face of the record. It is also not the case of the U.P.S.C, that they have detected this omission and called upon the State Government to forward the S.Rs. of the officers and conducted de novo exercise at their level under Regulation 7.
33. The promotion of an officer is an incidence of service. It is the natural aspiration of every Government servant subject to certain limitations. His right to be considered for promotion is preserved under Article 16 of the Constitution of India. Denying the promotion to the officer without observing the rules would amount to negation of his statutory and constitutional right. While no injustice can be said to cause to any ineligible officer but at the same time eligible officer cannot be overlooked causing serious prejudice to his service career. The Supreme Court in A.N. Sehgal v. Raje Ram Sheoran, , held:
"With a view to have efficient and dedicated services accountable for proper implementation of Government policies, it is open and is constitutionally permissible for the State, to infuse into the services, both talented fresh blood imbued with constitutional commitments, enthusiasm, drive and initiative by direct recruitment, blended with matured wealth of experience from the subordinate services. It is permissible to constitute an integrated service of persons recruited from two or more sources, namely, direct recruitment, promotion from subordinate service or transfer from other services. Promotee from subordinate service generally would get few chances of promotion to higher echelons of services. Avenues and facilities for promotion to the higher services to the less privileged members of the subordinate service would inculcate in them dedication to excel their latent capabilities to man the cadre posts. Talent is not the privilege of few but equal avenues made available would explore common man's capabilities overcoming environmental adversity and open up full opportunities to develop one's capabilities to shoulder higher responsibilities without succumbing to despondency. Equally talented young men/ women of great promise would enter into service by direct recruitment when chances of promotions are attractive. The aspiration to reach higher echelons of service would thus enthuse a member to dedicate honestly and diligently to exhibit competence, straightforwardness with missionary zeal exercising effective control and supervision in the implementation of the programmes. The chances of promotion would also enable a promotee to imbue involvement in the performance of the duties; obviate frustration and eliminate proclivity to corrupt practices, lest one would tend to become corrupt, sloven and mediocre and a deadwood. In other words, equal opportunity would harness the human resources to augment the efficiency of the service and undue emphasis on either would upset the scales of equality germinating the seeds of degeneration."
34. The Supreme Court again in Syed Khalid Rizvi v. Union of India, , while dealing with the preparation of select list under the Regulation every year observed as follows:
"The question then is whether the failure to prepare the select list could give rise to an inference mat rules have been collapsed and the State Government's local arrangement shall be given legitimacy as regular appointments? After giving our anxious consideration to the end resultants, we find it hard to accept the contention. The reasons are manifold. The appointment by promotion to the Indian Police Service and as a fact to any All India Service and determination of inter se seniority bear vital effect at the higher echelons of super time-scale of pay and the above. The State Government and the Central Government should strictly comply with the provisions in making recruitment by promotion from the State Service to the All India Services. If laxity has been given legitimacy and deemed relaxation is extended it would not only upset smooth working of the rules but also undo the prescribed ratio between promotee officers and direct recruits. It would also produce adverse effect at the All India level. Moreover, the concept of All India Services introduced to effectuate national integration by drawing persons from different regions by direct recruitment into concerned States cadres would be defeated by manipulation. National integration would be disturbed and frustrated. Smooth implementation of the rules would be deflected and distortions in service would gain legitimacy and acceptability. While the Central Government remains the statutory appointing authority the State Government gets into the saddle and would become de facto appointing authority. The junior most and unqualified or unfit would be pushed in from back door and pumped up into higher echelons, eroding efficiency and honesty.
35. Thus, viewed from any angle, we find that the list prepared by the Review Select Committee dated 20-8-2001 as approved by the U.P.S.C. is illegal and arbitrary. Consequently the notification issued by the Government of India No. 1-14013/6/2000, dated 21-1-2002 and Notification No. 1-14013/6/2000-IPS.1, dated 15-2-2002 insofar as the promotion of Respondents Nos. 5, 6 and 7 to I.P.S. cadre for the year 1999 are set aside. The writ petition is accordingly allowed setting aside the order of the Tribunal in OA No. 443 of 2002, dated 24-2-2003. Consequently the official respondents are directed to constitute Review Selection Committee and prepare the panel of officers eligible for promotion to IPS cadre for 1999 including the petitioner and Respondent Nos. 5 to 7 by assessing the overall relative assessment by considering the relevant. A.C.Rs. and service records as directed supra. The UPSC and Central Government shall accordingly take further action in accordance with Regulations. The entire exercise shall be done within a period of three months from the date of receipt of the copy of this order.
36. No costs.