Central Administrative Tribunal - Lucknow
Raj Kumar Srivastava vs Union Of India on 1 November, 2017
O.A. 45 of 2014
CENTRAL ADMINSTRATIVE TRIBUNAL
LUCKNOW BENCH, LUCKNOW
Original Application No. 332/00045/2014
Order reserved on : 04.08.2017
Pronounced on : 01.11.2017
Hon'ble Mr. Justice V.C. Gupta, Member (J),
Hon'ble Dr. Nandita Chatterjee, Member (A).
Raj Kumar Srivastava, aged about 55 years, Son of Sri Krishan Mohan
Srivastava, Resident of C-43, Sector-A, Mahanagar, Lucknow,
presently posted as -Additional Commissioner, Kanpur Division,
Kanpur.
....Applicant
By Advocate : Mr. Shireesh Kumar.
Versus
1. Union of India, through the Secretary Ministry of DOPT, Government
of India, New Delhi.
2. State of U.P. through the Principal Secretary, Appointment, Govt. of
U.P., Civil Secretariat, Vidhan Bhawan, Lucknow.
3. The Union Public Service Commission, Dholpur House, New Delhi
through its Secretary.
...Respondents
By Advocate: Mr. S. Lal- 1
Mr. S. Seth-2.
Mr. G.K. Singh - 3.
ORDER
Delivered By: Justice V.C. Gupta, Member (J)-
By means of this original application under Section 19 of the Administrative Tribunals Act, 1985, the applicant Sri Raj Kumar Srivastava, an officer of state cadre of Uttar Pradesh asked for the following relief(s):
"(i) to direct the respondents to allow promotion to the applicant to Indian Administrative Services with effect from 25/10/2013 the date when the officers junior to him were allowed promotion to Indian Administrative Services in the State of U.P. against the vacancies for the year 2012 with all the 1 O.A. 45 of 2014 consequential service benefits of seniority, pay fixation and arrears of salary etc.
(ii) Any other order which is deemed just and proper in the nature and circumstances of the case be also passed in favour of the applicant in the interest of justice alongwith the cost of this original application."
2. The brief facts given rise to this original application are that the applicant has been appointed in Uttar Pradesh Provincial Civil Services (Executive Branch) („State Services‟), in 1986 and allocated the batch of 1985 in service. In the gradation list of U.P. State Services the name of the applicant figured at Sl. No. 355. He being within the eligibility for promotion to IAS given place in panel for filing up 41 posts of IAS cadre for the vacancies of year 2012 from the officers of UP Cadre. The list of thrice in number was prepared wherein applicant was shown at S. No. 15. The candidature of the applicant was considered by selection committee duly constituted under Indian Administrative Service (Appointment and Promotion) Regulations, 1955 (for short Regulation of 1955) and he was declared unfit, as such he could not finds place in the final select list for appointment to the IAS cadre for year 2012 as is evident from the list dated 25.10.2013 of officers selected for appointment to IAS cadre. The State Government the respondent no. 2, has not placed the complete records of his service before the selection committee and as such he was deprived of his due consideration for appointment in the cadre of IAS against 2012 batch.
3. The applicant placed the minutes of meeting of selection committee held on 20.09.2013 and finally on 14.10.2013, which reveals that integrity certificate of the applicant was withheld by the state government. It further reveals that a departmental inquiry was pending against the applicant for a charge sheet issued against him on 12.07.2011. It further reveals that applicant was found unfit on the basis of an adverse annual confidential remark( for short „ACR‟) recorded for the year 2006-07. The same has been used for treating him unfit in the assessment year 2008-09 in which no ACR was recorded in the character roll of the applicant. It further reveals that the integrity certificate of the applicant was withheld on account of an adverse remark recorded in ACR of the applicant in year 2003-04. The procedure adopted by selection committee for assessing the suitability of officers has 2 O.A. 45 of 2014 been mentioned in para 4.3 and 4.4.of minutes of meeting.
4. The relevant portion of the minutes of selection committee is extracted herein below:
"U.P.S.C. File No. 6/20/2013-AIS CONFIDENTIAL Minutes of the meeting of the Selection committee constituted under Regulation 3 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 to prepare Select List of 2012 of such members of the State Civil Service of Uttar Pradesh who are suitable for promotion to the Indian Administrative Service against the vacancies of 2012.
The committee met at New Delhi on 14th October, 2013 at 10.30 AM continuation of meeting held at 10.30 AM on 20 th September, 2013.
2. 3.1 It was brought to the notice of the Committee that, as informed by the State Govt., disciplinary proceedings instituted against the following eligible officers are pending:-
S.No. Name(S/Shri) 1. 2. 3. 4. 5. Raj Kumar Srivastava 6. . . 11. 3.2 .... 3.3 The committee were informed that the State Govt. have withheld
the integrity certificate in respect of the following eligible officers:
S. No. Name (S/Shri) 1. 2. Raj Kumar Srivastava 3. . 6. 3.4 3.5 It was further brought to the notice of the committee that, as informed by the State Govt., (i) (ii) (iii) Representations against adverse entries in respect of the following eligible
officers have been received within the stipulated time but the decision of the State Government is yet to be taken:3
O.A. 45 of 2014 S.No. Name (S/Shri) Period
1. Raj Kumar Srivastava 2006-07 (20.07.2006 to 24.01.2007) 2. 3. 4.1 4.2 4.3 The committee were further informed that as the overall assessment of an officer cannot be withheld because of non-availability of ACRs, the Selection Committee has to make a categorization on the basis of available ACRs. Thus, where one or more ACRs of an officer have not been written for a year or more on account of his being on leave, training or because no officer supervised his work for more than three months or for any other valid reason during the relevant period, the Selection Committee should consider the ACRs of the years preceding the period of five years.
4.4 The Committee were further informed that the Selection Committee has to go through the records of the eligible officers and make their assessment after deliberating on the quality of the officer as indicated in the various columns recorded by the Reporting/Reviewing officer/Accepting Authority in the ACRs for different years and then finally arrive at the classification to be assigned to each officer. For making an overall relative assessment, the Committee is not to depend solely on the grading recorded by the Reporting/Reviewing officer/Accepting Authority but is to make its independent assessment of the service records of the eligible 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."
5. It has been pleaded that entry recorded in year 2003-04 where by the integrity certificate of the applicant was withheld was expunged by the State Government vide an order dated 23.09.2013 (Annexure No. A-6 to the O.A.) before meeting of selection committee on 14.10.2013 but this fact has not been brought to the notice of selection committee nor taken into consideration by State Government. It is not denied that on the basis of adverse remark recorded in ACR of 2003-04 the integrity certificate of the applicant was withheld. As such the selection committee declared the applicant as "unfit".
6. So far as adverse remark recorded in ACR for the year 2006-07 is concerned , the applicant pleaded that the same was also expunged by competent authority i.e. Agriculture Production Commissioner (APC) and 4 O.A. 45 of 2014 the same was expunged from the ACR of the applicant in pursuance of the order dated 01.08.2013 (Annexure No. A-7 to O.A.) but the same has not been brought to the notice of the selection committee by State Government despite the fact that meeting of the selection committee was held on 14.10.2013 i.e. after the orders expunging the remarks and as such the selection committee was not properly informed by State Government and relevant records relating to applicant has not been placed before the selection committee.
7. It was further pleaded by the applicant that as per U.P. Government Servants (Disposal of the Representation Against Adverse Annual Confidential Reports And Allied Matters) Rules, 1995 (in short UP Rules, 1995), the competent authority had disposed of the representation against the entry of 2006-07 as contained Rule 4 of UP Rules of 1995. The relevant rule 4 of the aforesaid rules provide the procedure in respect of adverse remarks recorded in ACRs of employees of State Government and the effect of non adhering the procedure prescribed in rule 5. Rule 4 and 5 are extracted herein below:
„4. Communication of adverse report and procedure for disposal of representation. - (1) Where a report in respect of a Government Servant is adverse or critical, wholly or in part, hereinafter referred to as adverse report, the whole of the report shall be communicated in writing to the Government Servant concerned by the accepting authority or by an officer not below the rank of reporting authority nominated in this behalf by the accepting authority, within a period of 45 days from the date of recording the report and a certificate to this effect shall be recorded in the report.
(2) A Government Servant may, within a period of 45 days from the date of communication of adverse report under sub-rule (1), represent in writing directly and also through proper channel to the authority one rank above the accepting authority, hereinafter referred to as the competent authority, and if there is no competent authority, to the accepting authority itself, against the adverse report so communicated:
Provided that if the competent authority or the accepting authority, as the case may be, is satisfied that the Government Servant concerned had sufficient cause for not submitting the representation within the said period, he may allow a further period of 45 days for submission of such representation.
(3) The competent authority or accepting authority as the case may be, shall, within a period not exceeding one week from the date of receipt of the representation under sub-rule (2), transmit the representation to the appropriate authority, who has recorded the adverse report, for his comments, who shall, within a period not exceeding 45 days from the date of receipt of the representation, furnish his comments to the competent authority or the accepting 5 O.A. 45 of 2014 authority as the case may be :
Provided that no such comments shall be required if the appropriate authority has ceased to be in, or has retired from, the service or is under suspension before sending his comments.
(4) The competent authority or the accepting authority, as the case may be, shall, within a period of 120 days from the date of expiry of 45 days specified in sub-rule (3), consider the representation along with the comments of the appropriate authority, and if no comments have been received without waiting for the comments, and pass speaking orders-
(a) rejecting the representation; or
(b) expunging the adverse report wholly or partly as he considers proper.
(5) Where the competent authority due to any administrative reasons, is unable to dispose of the representation within the period specified in sub-rule (4), he shall report in this regard to his higher authority, who shall pass such orders as he considers proper for ensuring disposal of the representation within the specified period.
(6) An order passed under sub-rule (4) shall be communicated in writing to the Government Servant concerned.
(7) Where an order expunging the adverse report is passed under sub-rule (4), the competent authority or the accepting authority as the case may be shall omit the report so expunged.
(8) The order passed under sub-rule (4) shall be final. (9) Where any matter for-
(i) communication of an adverse report;
(ii) representation against an adverse report;
(iii) transmission of representation to the appropriate authority for his comments;
(iv) comments of the appropriate authority; or
(v) disposal of representation against an adverse report; is pending on the date of the commencement of these rules, such matters shall be dealt with and disposed of within the period prescribed therefore under this rule.
Explanation. - In computing the period prescribed under this rule for any matters specified in this sub-rule the period already expired on the date of the commencement of these rules shall not be taken into account.
5. Report not to be treated adverse. - Except as provided in Rule 56 of the Uttar Pradesh Fundamental Rules contained in Financial Handbook Volume II, Parts II to IV. Where an adverse report is not communicated or a representation against an adverse report has not been disposed of in accordance with Rule 4, such report shall not be treated adverse for the purposes of promotion, crossing of Efficiency Bar and other service matters of the Government Servant concerned.‟
8. So far as the question of departmental inquiry is concern it has been pleaded by the applicant that the same was purposely kept pending 6 O.A. 45 of 2014 though the inquiry officer has already submitted his report in 2011 itself but final order awarding punishment of „Censure‟ against the applicant on 08.11.2013 was passed only when the Hon‟ble High Court directed to decide inquiry expeditiously on 13.01.2014 i.e. after taking decision in the matter of the applicant on 14.10.2013. However, the „Censure‟ entry was also set-aside on 15.07.2014 by UP Public Services Tribunal.
9. It was further pleaded by the applicant that several person against whom inquiry was pending on the date of consideration of their name, they have finally selected for appointment of IAS Cadre subject to clearance of pending inquiry as is evident from the note appended in the final selection list. The note appended reveals that officers against whom the departmental inquires were pending have been appointed subject to clearance of departmental proceedings but the case of the applicant was not considered.
10. On these grounds it has been pleaded by the applicant that decision taken by the selection committee with regard to the present applicant is not sustainable and applicant is liable to be appointed in the IAS cadre from the date when his junior officers were promoted to the IAS Cadre.
11. Counter reply has been filed by Respondent no. 3, The Union Public Service Commission (herein after referred to as "Commission") alleging, inter-alia, that the process of selection of officer of U.P. state cadre against 41 vacancies for the year 2012 was initiated in the light of IAS (Appointment by Promotion) Regulations, 1955. It was further contended that candidature of the applicant has been rightly rejected by declaring him "unfit" on the basis of complete dossier of the applicant supplied by State Government including integrity certificate, certificate regarding disciplinary proceedings/Criminal proceedings / certificate of communication of adverse remarks and penalties imposed. It was further contended that the selection committee in view of Regulation 4 of 1955 Regulations graded the officer after considering the material made available by the State Government. The subjective satisfaction recorded 7 O.A. 45 of 2014 by the selection committee for overall assessment of the officer cannot be interfered by Court/Tribunal on the basis of its own assessment. The selection committee after deliberating on the qualities of the applicant recorded in the various column of his ACRs by reporting / reviewing / accepting authorities of different years finally arrived at the classification assigned to the applicant. It was further pleaded by UPSC that for making the overall assessment the selection committee is not solely guided on the gradings recorded by reporting / reviewing / accepting authority but make its own assessment of the service records for overall assessment of officer. The selection committee has also taken into consideration the appreciation of the meritorious work done by the concerned officer. Similarly the selection committee also taken into consideration their service record without being influenced with entries recorded, penalty awarded or adverse remarks communicated to the officer even after consideration of his representation if the same has not been completely expunged. It was further contended that in view of several judgments of the Hon‟ble Supreme Court, the Courts and Tribunals are not supposed to act as an appellate authority and to substitute it own satisfaction in respect of subjective satisfaction recorded by the selection committee while deciding the overall assessment of an officer.
12. The State of UP (Respondent no. 2) also filed reply to the O.A. It was stated therein that so far as the ACR of year 2003-04 is concerned the adverse remarks recorded therein had already expunged by appointment section of the State of UP.
13. So far as adverse remark recorded in ACR of year 2006-07 is concerned it has been stated that the competent authority to consider the representation against adverse remarks is appointment department of State of UP and not the Agriculture Production Commissioner (APC) of State of UP. The appointment department wrote a letter to APC Branch on 13.09.2013 where by request has been made that the order dated 01.08.2013 be cancelled but till date the order has not been cancelled. Consequently, adverse remark recorded in 2006-07 cannot be treated as expunged and the same is still pending. So far as the pendency of the 8 O.A. 45 of 2014 departmental proceeding is concern the stand taken by applicant that he may be selected provisionally, cannot be accepted because the candidature of any officer of the State Cadre can be made provisional in the light of I proviso of Sub-Rule-5 of Rule-4 of 1955 Regulations. It was further contended that the allegation of malafide against appointment section of the State Government is not sustainable.
14. Two separate rejoinders have been filed against both the counter affidavits wherein it has been stated that the orders by which adverse remarks of 2003-04 and 2006-07 have been expunged were not placed before selection committee though they have been expunged prior to meeting held on 14.10.2013. It was further stated that informing selection committee about withholding of integrity of applicant by state government on the basis of adverse remark in ACR recorded for 2003-04 was not permissible in view of decision taken by state Government itself while expunging the remark and certifying the integrity prior to the meeting of selection committee held on 14.10.2013. The selection committee considered both adverse remark recorded in 2003-04 and 2006-07 and declared the applicant unfit. It was further contended that even if APC is not competent authority to decide the representation of the applicant against the entry recorded in 2006-07 as alleged by respondent no. 2 even then that entry could not be treated as adverse against the applicant in view of Rule-5 of 1995 U.P.Rules. The material aforesaid which ought to be placed before selection committee by the State Government has not been placed before the Selection Committee as is evident from the minutes of the meeting.
15. No reply has been filed by U.O. I., respondent no.1 in this case.
16. We have heard the learned counsel for the applicant and respondent no. 1, 2 & 3 and perused the record of the case. The learned counsel for the respondent no. 1 adopted the arguments and stands taken by UPSC for defending this petition.
17. The learned counsel for the applicant urged that the decision 9 O.A. 45 of 2014 which has been taken by UPSC declaring the applicant unfit is not based on material which ought to have been considered by selection committee. The decision is actually based on material which ought not to be taken into consideration by selection committee. It was further contended that the State Government has fails to supply all the materials in respect of the applicant before selection committee. Consequently the overall assessment made by selection committee declaring the applicant "unfit" is perverse and cannot be allowed to sustain in view of several judgments of the Hon‟ble Apex Court.
18. Learned counsel for the applicant relying upon judgment of Hon‟ble Supreme Court in Gurdial Singh Fijji v. State of Punjab, (1979) 2 SCC 368 wherein it has been held that withholding the integrity certificate without considering the cause shown by the officer against adverse remark would not be sustainable. The relevant part of judgment in para 17 at page 376 reads as under;
"17. The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult to support the non-issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him.
19. The counsel for the applicant also relied upon another judgment of Hon‟ble Supreme Court in Amar Kant Choudhary Vs. State of Bihar and Ors, (1984) 1 SCC 694. The Hon‟ble Supreme Court after relying upon Girdayal Singh Fijji‟s case (Supra) and after considering the material on record remitted the case for reconsideration as contained in para 8 and is 10 O.A. 45 of 2014 extracted below;
"8. After giving our anxious consideration to the uncontroverted material placed before us we have reached the conclusion that the case of the appellant for promotion to the Indian Police Service Cadre has not been considered by the Committee in a just and fair way and his case has been disposed of contrary to the principles laid down in Gurdial Singh Fijji case [(1979) 2 SCC 368 : 1979 SCC (L&S) 197 :
(1979) 3 SCR 518] . The decisions of the Selection Committee recorded at its meetings in which the case of the appellant was considered are vitiated by reason of reliance being placed on the adverse remarks which were later on expunged. The High Court committed an error in dismissing the petition of the appellant and its order is, therefore, liable to be set aside. We accordingly set aside the order of the High Court. We hold that the appellant has made out a case for reconsideration of the question of his promotion to the Indian Police Service Cadre of the State of Bihar as on December 22, 1976 and if he is not selected as on that date for being considered again as on March 12, 1981. If he is not selected as on March 12, 1981 his case has to be considered as on October 14, 1981. The Selection Committee has now to reconsider the case of the appellant accordingly after taking into consideration the orders passed by the State Government subsequently on any adverse entry that may have been made earlier and any other order of similar nature pertaining to the service of the appellant. If on such reconsideration the appellant is selected he shall be entitled to the seniority and all other consequential benefits flowing therefrom. We issue a direction to the respondents to reconsider the case of the appellant as stated above. We hope that the above direction will be complied with expeditiously but not later than four months from today."
20. Learned counsel for the applicant relying upon a recent judgment rendered by Hon‟ble Supreme Court in H.S. Sidhu Vs. Devendra Bapna and ors, (2016) 1 SCC 495 has argued that though the Tribunal or Courts are not expected to act as a court of appeal to re-assess the assessment of DPC and substitute its own assessment but at the same time if the assessment made by DPC is perverse or not based on record or proper record has not been considered by DPC, it is open to the Tribunal or High Court under Article 226 of the Constitution to remit the matter back to DPC for recommendation. Para 13 and 14 were relied upon by the counsel for the applicant. The same are extracted herein below;
"13. Be it clarified that neither the appellant nor was the first respondent confirmed and, therefore, the rules relating to seniority as far as the confirmed employees are concerned, do not apply. The Rule that really applies is Rule 12(c) which deals with seniority of government servant. The proviso to Rule 12(c) makes it quite vivid that if an officer has been selected for officiation from a list in which he is considered suitable for 11 O.A. 45 of 2014 trial in a promotion and the said list has been arranged in order of merit, their inter se seniority shall be determined in accordance with the order of merit. In such a situation, there can be no scintilla of doubt that when DPC had drawn the list on the basis of inter se merit, the fixation of seniority could not be found fault with. It needs no special emphasis to state that while exercising the power under Article 226 of the Constitution, the High Court cannot sit in appeal over the assessment made by DPC. In Union of India v. S.P. Nayyar [(2014) 14 SCC 370 : (2015) 3 SCC (L&S) 458] , it has been stated that if the assessment made by DPC is perverse or not based on record or proper record has not been considered by DPC, it is open to the High Court under Article 226 of the Constitution to remit the matter back to DPC for recommendation, but it cannot assess the merit on its own on perusal of the service record of one or the other employee. Thus, analysed the view expressed by the High Court in the impugned order is wholly unsustainable.
14. The controversy does not rest there. We have been apprised that the first respondent has retired holding the post of Director after a review DPC was directed to be held by the Division Bench. Regard being had to the fact that he has already retired on 31-10-2010, he shall be treated to have retired from the post of Director and shall get the pensionary benefits. As far as the appellant is concerned, by virtue of the order passed by the Division Bench, he continued in the post of Director till 5-2-2010 and thereafter he was reverted to the post of Joint Director. As he was already selected as a Director because of his seniority which has been erroneously set aside by the High Court, we direct the State Government to pay the arrears of salary commencing 5-2-2010 to 31-8-2010. That apart, he shall also reap the benefits of the post of Director. We will be failing in our duty if we do not state that there was serious opposition by Mr Mayee, learned counsel for the State but the said resistance is absolutely inconsequential in view of the findings recorded by us.
21. It has been argued by the counsel for the applicant that the plea taken by the respondents that subjective satisfaction recorded by selection committee with regard to assessment of an officer cannot be interfered by any court/Tribunal is not an absolute rule. This rule has several exceptions as stated by the Apex Court. The present case falls within the exception carved out by Hon‟ble Apex Court. While exercising the power of judicial review in the present case this Tribunal can interfere in decision taken by the departmental promotion committee/Selection Committee in the circumstances narrated herein above and as such this petition deserves to be allowed.
22. It was further contended that this is a clear case of malice in law so far as actions of the State Government are concerned. The officers of the appointment section of State Government by not sending the record of 12 O.A. 45 of 2014 expunging the adverse remarks of 2003-04 and 2006-07 and certifying the integrity of applicant to selection committee, virtually acted in such a way that their favorite officers could be allowed to be promoted. It was further contended that one Sri Pramod Kumar whose date of birth was of 1956 and was not found fit in earlier selection was inducted in the list of 2012 by amending his date of birth from 1956 to 1959 and he was selected against the vacancy for year 2012 to cadre of IAS though he was junior to the applicant. The action of the appointment section was not forwarding the relevant and complete records expunging the remark to the selection committee is not only pre-judicial and detrimental to the interest of the applicant but also constitute malice in law as held by Hon‟ble Supreme Court in Somesh Thakur Vs. U.O.I. and other (2009) 2 SCC
592. The learned Counsel for the applicant also contended that this was the last chance of promotion to the applicant as per rules which shall be lost if this matter is not disposed of expeditiously.
23. The learned counsel Sri Sudeep Seth for the State of UP vehemently argued that all materials were properly placed before the selection committee. It was further argued that the entries of ACRs of 2003-04 and 2006-07 has not been considered either by State Government or by the Selection Committee, as is evident from the minutes of meeting of selection committee. It was further contended that only entries commencing from year 2007-08 to 2011-12 i.e. of 5 years including the year in which the selection committee meeting was held, taken into consideration. It was further contended that the grading recorded by the reporting / reviewing / accepting authority are not conclusive and the selection committee may grade the officer differently on the basis of material available before the committee and the satisfaction recorded on the basis of material available being subjective satisfaction of expert body cannot be interfere by court/Tribunals as held by Apex Court in UPSC Vs. L.P. Tiwari and others (2006) 12 SCC 317. The Hon‟ble Supreme Court held that evaluation made by the expert committee cannot be lightly interfered. The proposition of relevant law is mentioned in para 12, 13 and 14 at page 320 and are extracted herein below;
13O.A. 45 of 2014 "12. It is now more or less well settled that the evaluation made by an expert committee should not be easily interfered with by the courts which do not have the necessary expertise to undertake the exercise that is necessary for such purpose. Such view was reiterated as late as in 2005 in UPSC v. K. Rajaiah [(2005) 10 SCC 15 : 2005 SCC (L&S) 738] wherein the aforesaid Regulations for the purpose of promotion to the IPS cadre were under consideration. Apart from the above, at no stage of the proceedings, either before the Tribunal or the High Court or even before this Court, has any allegation of mala fides been raised against the Selection Committee and the only grievance is that the Selection Committee erred while making assessment of the comparative merits of the respective candidates. While concluding his submissions, Mr Rao had pointed out that the direction given by the High Court to the appellant to hold a Review Departmental Promotion Committee was also erroneous since the Regulations provided for selection to be made not by a Departmental Promotion Committee but by a Selection Committee constituted as per the Regulations.
13. Although, on behalf of the respondents it has been urged that there was no bar which precluded the Tribunal from looking into the original ACRs of the respective candidates, what we are required to consider is whether it was at all prudent on the part of the Tribunal to have adopted such a procedure which would amount to questioning the subjective satisfaction of the Selection Committee in preparing the select list.
14. From the submissions made and the materials on record, we are satisfied that the methodology which has been evolved and included in the Regulations for grading the eligible officers has been religiously followed by the Selection Committee which did not call for any interference by the Tribunal. The High Court has merely followed the decision of the Tribunal without independently applying its mind to the facts involved."
24. Learned counsel for the respondent(UPSC) relying upon another judgment of Hon‟ble Supreme Court in S.L. Soni v. State of M.P., 1995 Supp (3) SCC 156 argued that courts cannot revaluate the assessment made by the expert committee. For that he relied upon para 4 of the judgement "4. Pursuant thereto, excluding the adverse comments made for the year ending with March 1978, the Committee reconsidered the matter and found the appellant not eligible for promotion. Though Shri Pandey sought to canvass the claim on merits, we cannot evaluate ourselves the relative merits. A High Level Committee objectively considered the claim and found the appellant was not fit for promotion on merits. We are satisfied about this on perusal of the proceedings of the Committee."
25. Learned counsel for the respondent (UPSC) relying upon judgment of Hon‟ble Supreme Court in High Court of Judicature of Patna v.
14O.A. 45 of 2014 Madan Mohan Prasad, (2011) 9 SCC 65 would submit that promotion is not a matter of right and nobody can claim violation of fundamental right in case his promotion is denied. He relied upon para 43 and 44 of the judgment, which are extracted below;
"43. It is well settled that promotion is not a matter of right much less a fundamental right, more particularly when promotion in the subordinate judiciary is to be dealt with by the High Court which has complete control over the subordinate judiciary in view of Article 235 of the Constitution. All rights and claims of Respondent 1 got crystallised when this Court passed the order dated 25-11-1986 in SLP (C) No. 8621 of 1985 read with the order dated 30-8-1983 passed by this Court in SLP (C) No. 8923 of 1983. If Respondent 1 had any other claim he ought to have made the same before this Court when the above-numbered special leave petitions were disposed of. In fact both the special leave petitions were dismissed and therefore all his claims stood finally rejected, except the direction given to pay him the pension, etc. mentioned in the order dated 25-11-1986 passed in SLP (C) No. 8621 of 1985.
44. No grievance was made by Respondent 1 in CWJC No. 6538 of 1990 that the direction given by this Court on 25-11-1986 in SLP (C) No. 8621 of 1985 were not complied with by the appellant. Neither at the time of disposal of SLP (C) No. 8923 of 1983 nor at the time of disposal of SLP (C) No. 8621 of 1985 Respondent 1 had claimed any other relief and had not obtained permission to claim relief of promotion in future. Therefore, the relief claimed in Madan Mohan Prasad v. State [ CWJC No. 6538 of 1990 decided on 27-6-2008 (Pat)] could not have been granted by the Court."
26. Learned counsel for the respondent (UPSC) relying upon another judgment of Hon‟ble Supreme Court stated that almost similar view has been taken by Apex Court in Union of India v. S.K. Goel, (2007) 14 SCC 641 as is evident from conjoint reading of para 27,28 and 31. These para are extracted herein below;
27. In our opinion, the judgment of the Tribunal does not call for any interference inasmuch as it followed the well-settled dictum of service jurisprudence that there will ordinarily be no interference by the courts of law in the proceedings and recommendations of DPC unless such DPC meetings are held illegally or in gross violation of the rules or there is misgrading of confidential reports. In the present case, DPC had made an overall assessment of all the relevant confidential reports of the eligible officers who were being considered. DPC considered the remarks of the reviewing officers. There was clear application of mind. Respondent 1 did fulfil the benchmark. Hence, the impugned direction of the High Court ought not to have been issued as the same will have the impact of causing utter confusion and chaos in the cadre of the Indian Revenue Service and the Customs and Central Excise Service.
15O.A. 45 of 2014
28. It was also argued by the learned Senior Counsel appearing for Respondent 1 that the entries for the period had an element of adverse reflection and for that purpose the seniority of Respondent 1 was downgraded and, therefore, ACR ought to have been communicated to Respondent 1. In our opinion, the observations of the High Court are wholly unjustified inasmuch as the post of the Commissioner of Customs and Central Excise is a post required to be filled up on selection made strictly on the basis of merit. No judicial review of the DPC proceedings, which are ordinarily conducted in accordance with the standing government instructions and rules is warranted. The norms and procedure for DPC are prescribed in OM dated 10-4-1989. It is thus seen that the decision taken by the appellants has been as per the instructions issued on the subject that only adverse entries and remarks are to be communicated and there is no provision to communicate the downgrading of ACR to a government employee. The decision of the Central Government is in strict accordance with the prevailing rules and government instructions. In the absence of any violation, the impugned order of the High Court while undertaking a judicial review under Article 226 of the Constitution of India, is wholly unjustified. Since the matter of seniority has been well settled and this Court in a plethora of cases has held that the seniority/promotion granted on the strength of DPC selection should not be unsettled after a lapse of time. Therefore, in the facts and circumstances of the present case, where there are no adverse remarks whatsoever against Respondent 1, the High Court ought not to have interfered with and passed the impugned direction. This apart, as per the instructions contained in Para 6.21 of DOP&T Order No. 22011/5/86/Estt. D dated 19-4-1981, as amended, DPC is not required to be guided merely by the overall grading, if any, that may be recorded in CRs but to make its own assessment on the basis of the entries in CRs. DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence, the impugned order of the High Court, in our opinion, is liable to be set aside."
Para 31 "31. For the foregoing reasons, we hold that DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence, the interference by the High Court is not called for."
27. Counsel for the respondent on the strength of the above noted references submitted that this O.A. is liable to be dismissed with costs.
FINDINGS
28. After hearing the arguments of the learned counsel for the parties and going through the record this tribunal finds that following are the issues required to be answered before deciding the OA.
16O.A. 45 of 2014 Issues for Determination
1. Whether any interference is permissible by this Tribunal in the assessment made by the selection committee with regard to merit and suitability of an officer for promotion? If So, the extent thereof.
2. Whether adverse remarks recorded in ACR for year 2003-04 and 2006-07 were taken into consideration by selection committee for evaluating the merit of the applicant for promotion to IAS cadre?
3. Whether ACR for year 2003-04 after removal of adverse remarks were taken into consideration? If not, whether they were required to be taken into consideration?
4. Whether ACR for year 2006-07 after removal of adverse remarks were taken into consideration? If not, whether they were required to be taken into consideration?
5. What would be the effect of pending disciplinary proceeding against the applicant while assessing him for promotion by selection committee?
Findings on Issue No.1
29. This issue relates to the scope of interference by Courts/Tribunals in the decision taken and assessment made by Selection committee for purpose of promotion. The judgment referred by the parties herein above makes it crystal clear that evaluation made by an expert committee should not be lightly interfered by courts / Tribunals as Departmental Promotion Committee (DPC)/Selection Committee has necessary expertise to undertake the exercise. However this general rule is not absolute and has some exceptions. The exceptions carved out on the basis of different judgments may be;
(i) where evaluation made by Selection committee is based on mala fides of the members of selection committee.
(ii) where the selection committee has fails to consider material which ought to have considered by the Selection Committee
(iii) where the selection committee considers the material which 17 O.A. 45 of 2014 ought not to be considered by the selection committee
(iv) Where selection committee misread the confidential reports,
(v) Where meeting of selection committee/DPC held for consideration of merit and suitability of officers/ employees would be illegal,
(vi) Where the opinion of the selection committee is in gross violation of relevant Rules/Statute.
30. In view of the above if court/Tribunal finds that the case falls under any of the exceptions stated herein above, the Courts or Tribunal cannot substitute their own opinion and assessment in place of assessment made by selection committee / Departmental Promotion Committee. At the most the matter may be remitted back by the Courts/ Tribunals to the selection committee for re-consideration/ re-assessment/re-evaluation.
31. Hence it can safely be said that assessment made by DPC/Selection Committee for promotion on merit cum suitability cannot be interfered, is not an absolute Rule of service jurisprudence and there are certain exceptions of the aforesaid General Rule. Even if Courts/Tribunals finds that the particular matter/case falls within the exceptions, the Courts or Tribunal cannot substitute their own assessment in place of assessment made by selection committee / DPC. At the most the matter may be remitted back by the courts/Tribunals to the selection committee/ DPC for re-consideration /re-assessment of candidature of the aggrieved person(s).
32. The issue is accordingly decided Findings on issue No. 2, 3 & 4
33. All the three issues are co-related and are related to the effect of annual confidential remarks for the year 2003-04 and 2006-07. Hence, all are taken together.
ACR of 2003-04
34. So far as adverse remarks given to the applicant in ACR of 2003-04 are concerned the same were admittedly expunged by State Government 18 O.A. 45 of 2014 vide an order dated 23.09.2013 as evident from annexure A-6 to the O.A. It is also evident that on the basis of adverse remarks given in 2003-04 the integrity certificate of the applicant was also withheld but perusal of the order dated 23.09.2013 reveals that not only adverse remarks were expunged but integrity of the applicant was also certified. The order dated 23.09.2013 is extracted herein below;
** mRrj izn"s k "kklu fu;qfDr vuqHkkx&2 la[;k% 3820@nks&2&2013&22¼24½@87 Vh-lh-
y[kuÅ% fnukad % 23 flRkEcj] 2013
dk;kZy; vkns"k
v/kksgLrk{kjh dks ;g dgus dk funs"k gqvk gS] fd vij ftykf/kdkjh ¼fo@jk½ cqyUn"kgj ds dk;Zdky esa Jh jktdqekj JhokLro] ih0lh0,l0 dh okf'kZd xksiuh; izfof'V o'kZ 2003&04 ¼fn0&16-11-2003 lss 31-3-2004 rd½ ds fy, izfrosnd vf/kdkjh ds #i esa rRdkyhu ftykf/kdkjh] cqyUn"kgj }kjk fuEufyf[kr fVIi.kh vafdr dh xbZ Fkh%& ^^Jh jktdqekj JhokLro] rRdkyhu vij ftykf/kdkjh ¼fo@jk½] cqyUn"kgj dk o'kZ 2003&2004 esa fnu0& 16-11-2003 ls 31-3-2004 rd dk;Z rRdkyhu ftykf/kdkjh] cqyUn"kgj dh gSfl;r ls ns[kk x;k gSA Jh JhokLro ds laca/k esa dksbZ LoewY;kadu vk[;k izLrqr ugha dh x;h gSA tgkW rd esjh ;knnk"r ds vk/kkj ij Jh JhokLro ,d v;ksX;] v{ke ,oa Hkz'V fdLe ds vf/kdkjh jgs gSa] ftudh vke [;kfr o "kkSgjr vR;Ur gh [kjkc jgh gSA vr% budh lR;fu'Bk izekf.kr ugha dh tk ldrhA dk;Z dh Js.kh & [kjkc g0@& ftykf/kdkjh] cqyUn"kgjA 2&mDr izfrdwy izfof'V dks "kklu ds i= fn0&20-10-2010 }kjk Jh jktdqekj JhokLro dks lalwfpr fd;k x;k] ftlds fo#} Jh JhokLro us viuk fnukad jfgr izR;kosnu izLrqr fd;kA fu;ekuqlkj Jh JhokLro ds izR;kosnu ij izfrosnd vf/kdkjh] rRdkyhu ftykf/kdkjh] cqyUn"kgj Jh vuqjkx JhokLro dk vfHker i= fn0& 26-10-2012 }kjk ekaxk x;k] tks izkIr ugha gqvk gSA 3&Jh jktdqekj JhokLro }kjk vius izR;kosnu esa mfYy[kr fd;k x;k gS fd Jh vuqjkx JhokLro] rRdkyhu ftykf/kdkjh] cqyUn"kgj fn0&10-09-2003 ls 12-2-2004 rd dh vof/k esa rSukr jgs tcfd iz"uxr izfof'V fn0&16-11-2003 ls 31-3-2004 rd dh vof/k ds fy, nh xbZ gS] tks fu;ekuqdwy ugha gSA Jh JhokLro us ;g Hkh mfYyf[kr fd;k gS fd izfrosnd vf/kdkjh }kjk mDr vof/k esa mudk dk;Z 03 ekg rd ugha ns[ks tkus ds dkj.k muds }kjk LoewY;kadu vk[;k izsf'kr ughas dh xbZ rFkk iz"uxr izfof'V 07 o'kZ ds mijkUr izfrosnd vf/kdkjh }kjk dkYifud #i ls vafdr dh xbZ gS] tks fd foyqIr fd;s tkus ;ksX; gSA 4& Jh jktdqekj JhokLro ds izR;kosnu esa mfYyf[kr rF;ksa ds vuqlkj izfof'VdrkZ vf/kdkjh rRdkyhu ftykf/kdkjh] cqyUn"kgj fn0& 10]9]2003 ls 12-2-2004 rd gh dk;Zjr jgs tcfd fn0& 16-11-2003 ls 31-3-3004 ds fy, izfof'V yxHkx 07 o'kZ mijkUr fcuk LoewY;kadu vk[;k ds vafdr dh xbZ gSA okf'kZd izfof'V vafdr djus gsrq fu/kkZfjr uhfr ds vuqlkj izfof'V fy[kus] mldk iqujh{k.k vFkok Lohdj.k djus ds fy, vko";d gS fd mDr izkf/kdkjh us lacaf/kr vf/kdkjh dk dk;Z de ls de 3 ekg rd ns[kk gksA iz"uxr izdj.k esa izfof'VdrkZ vf/kdkjh }kjk 03 ekg rd Jh JhokLro dk dk;Z ugha ns[kk x;k gSA vr% mDr ds n`f'Vxr Jh jktdqekj JhokLro] ih0lh0,l0 dks o'kZ 2003&04 esa ¼fn0&16-11-2003 lss 31-3-2004 rd½ dh vof/k ds fy, 19 O.A. 45 of 2014 izfrosnd vf/kdkjh }kjk iznRr izfof'V dks foyksfir fd;s tkus dk fu.kZ; fy;k x;k gSA 5& vr% Jh jkT;iky] Jh jktdqekj JhokLro] ih0lh0,l0 rRdkyhu vij ftykf/kdkjh ¼fo@jk½ cqyUn"kgj dks o'kZ 003&04 ¼fn0&16-11-2003 lss 31-3-2004 rd½ esa rRdkyhu ftykf/kdkjh] cqyUn"kgj }kjk iznRr izfrdwy izfof'V dks foyksfir fd;s tkus dh ,rn~}kjk lg'kZ Lohd`fr iznku djrs gSaA ;ksxs"oj jke feJ] fo"ks'k lfpo] la[;k ,oa rn~fnukadA izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko";d dk;Zokgh gsrq izsf'kr%& 1- Jh jktdqekj JhokLro] rRdkyhu vij ftykf/kdkjh ¼fo@jk½] cqyUn"kgj lEizfr eq[; fodkl vf/kdkjh] nsofj;kA 2- fu;qfDr vuq0&7 @ vuqHkkxh; vkns"k iqfLrdkA vkKk ls] ¼j?kqukFk flag ifjgkj½ mi lfpoA^^
35. This decision of 23.09.2013 was not communicated to the selection committee before its meeting held on 14.10.2013 at 10.00 a.m. Therefore, the facts that order of the withholding integrity certificate was not in existence on the date of consideration of candidature of the applicant could not be taken into consideration by selection committee and selection committee observed in the minutes of meeting dated 14.10.2013 that the applicant‟s integrity was withheld and consequently the applicant was placed in the category of those officer whose integrity certificate was withheld.
ACR 2006-07
36. So far as the adverse remark recorded in ACR of applicant for the year 2006-07 is concerned the same was also expunged by Agriculture Production Commissioner (APC) of State of U.P. vide its order dated 01.08.2013 annexed as Annexure A-7 to the O.A. but this fact was also not communicated to the selection committee.
37. The State Government taken a view that APC of State of U.P. is not competent authority to expunge the adverse remarks recorded against applicant and the competent authority in this regard is the appointment department of State Government. Hence, the order of expunging of 20 O.A. 45 of 2014 adverse remarks by APC is not of any use. The appointment department of State Government wrote a letter to APC Branch on 13.09.2013 requesting to cancel the order dated 01.08.2013, the copy of which is reproduced herein below for ready reference;
^^ izs'kd] ;ksxs"oj jke feJ] fo"ks'k lfpo] mRrj izns"k "kkluA lsok esa] izeq[k lfpo leUo; foHkkx] mRrj izns"k "kkluA fu;qfDr vuqHkkx&2 y[kuÅ fnukad% 13 flRkEcj] 2013 fo'k;% Jh jktdqekj JhokLro] ih0lh0,l0] rRdkyhu eq[; fodkl vf/kdkjh] fl}kFkZuxj dks iznRr izfrdwy izfof'V dks foyksfir fd;s tkus ds lEcU/k esAa egksn;] mi;qZDr fo'k;d dk;Zky; vkns"k la-& 1450@le&73&2013] fn0&1-8-2013 dk d`i;k lUnHkZ xzg.k djs]a ftlds }kjk Jh jktdqekj JhokLro] ih0lh0,l0] rRdkyhu eq[; fodkl vf/kdkjh] fl}kFkZuxj dks o'kZ 2006&07 ¼fn0&21-07-2006 ls 24-1-2007½ esa iznRr izfrdwy izfof'V dks Jh JhokLro ds izR;kosnu fn0&30-5-2012 ,oa 27-6-2013 esa mfYyf[kr rF;ksa ds n`f'Vxr foyksfir dh xbZ gSA 2& mYys[kuh; gS fd mDr izfrdwy izfof'V ds fo#} Jh jktdqekj JhokLro }kjk izLrqr fnukad jfgr izR;kosnu ij izfrdwy izfof'VdrkZ vf/kdkjh ds lsokfuo`Rr gks tkus ds n`f'Vxr ftykf/kdkjh] fl}kFkZuxj dk vfHker i= fn0&26-10-2012 }kjk ekaxk x;k] tks vHkh rd vizkIr gksus ds dkj.k vfuLrkfjr gSA blh e/; leUo; vuqHkkx ds dk;kZy; vkns"k fn0&1-8-2013 }kjk Jh jktdqekj JhokLro dks iznRr izfrdwy izfof'V dks foyksfir fd;k x;k gS] tks fd fu;ekuqlkj ugha gS] D;ksfa d okf'kZd izfrdwy izfof'V ds fo#} izR;kosnu dk fuLrkj.k iz"kkldh; foHkkx ds #i esa fu;qfDr foHkkx }kjk gh fd;k tk ldrk gSA bl izdkj Jh JhokLro ds izR;kosnu ij fu;qfDr foHkkx ds Lrj ls gh vfUre fu.kZ; fy;k tkuk gSA 3& bl lEcU/k esa eq>s ;g dgus dk funs"k gqvk gS fd d`i;k dk;kZy; vkns"k la0&1450@le&73&2013] fn0&1-8-2013 dks fujLr djkrs gq, fujLrhdj.k vkns"k fu;qfDr foHkkx dks miyC/k djkus dk d'V djs]a rkfd Jh jktdqekj JhokLro ds izR;kosnu ij vfUre fu.kZ; fy;k tk ldsA Hkonh;
¼;ksxs"oj jke feJ½ fo"ks'k lfpo^^]
38. The fact is that till date neither the order has withdrawn by APC nor did appointment section cancel the order of APC being without jurisdiction.
21O.A. 45 of 2014
39. So far as the factual matrix of the case is concerned there is no dispute that adverse remarks has been expunged of 2006-07 by APC on representation given by the applicant. It is also not in dispute that no decision on representation of the applicant against adverse remarks of 2006-07 has been taken by appointment department. For the sake of the arguments, if it is taken to be correct that the APC is not competent authority to expunge the adverse remarks from ACR of applicant then there was no reason as to why final decision has not been taken by appointment section regarding representation of the applicant against adverse remark recorded in the year 2006-07.
40. It is not a case of State Government that rule of U.P. Servants (Disposal of representations against Annual Confidential Report and Alleged Matters) Rules, 1995 are not applicable to the present applicant. Admittedly the time schedule given in the aforesaid Rules under Rule-4 has not been adhered to. The consequences of not deciding applicant‟s representation within the stipulated period has been given in Rule-5 which provides that where against adverse remarks, the representation has been given and has not been disposed of in accordance with Rule-4 the adverse remarks in ACR shall not be treated to be adverse for the purpose of the promotions.
41. The APC has expunged the adverse remark pertaining to ACR for year 2006-07 and appointment section has not taken decision with regard to expunging the adverse remark on the representation made by the applicant within stipulated period as mentioned in Rule 4 of 1995 Rules are not in dispute. The aforesaid factual matrix has not been communicated by the State Government to selection committee prior to its meeting held on 14.10.2013.
42. Therefore in the aforesaid facts and circumstances we are of the firm view that adverse remarks recorded against applicant in year 2006-07 would not have been taken into consideration for making evaluation of the applicant for the purpose of promotion to IAS Cadre.
22O.A. 45 of 2014
43. The perusal of minutes of selection committee as well as the information supplied under Right to Information Act to the applicant it is crystal clear that adverse remarks noted in both ACRs of 2003-04 and 2006-07 were considered by the selection committee and the effect of consideration of the same played a vital role for the assessing the merit/suitability of the applicant for promotion to the IAS Cadre. This Tribunal is also of the firm view that selection committee has considered the material which ought not to have been considered by the selection committee and also failed to consider the material which ought to have been taken into consideration. As such the present case falls within the exceptions as noted herein above.
44. The stand taken by state government that entries of the year 2003-04 and 2006-07 were not taken into consideration does not appeal to us as the same is contrary to the records of the case. Non action on the part of Government of U.P. is also clear from the records. It is crystal clear that whatever had happen with regard to adverse remark of ACR for year 2003-04 and 2006-07 prior to meeting of selection committee were not communicated to the selection committee for the reasons best known to the State Government. Resultantly, the selection committee observed that the integrity of the applicant was withheld by the state government on account of adverse remarks recorded in ACR of 2003-04 and adverse remark recorded in 2006-07 was used to assess the applicant for the year in which no entry was recorded, which is evident from information supplied by the respondents to the applicant under RTI Act. The same is extracted herein below for ready reference:
"Your Year-wise Assessment made by the SCM is given below:-
Position of 2007-08 2008-09 2009-10 2010-11 2011-12 Overall Remarks IC/DE/Cr.P Relative Adverse Assessment Remarks DE/ICW/Adv. VG 06-07 AV VG VG Unfit Remarks Unfit 2006-07) 23 O.A. 45 of 2014
45. As such the issued no. 2 decided in affirmative because the adverse remarks recorded in ACRs of 2003-04 and 2006-07 were taken into consideration by selection committee.
46. Issue No. 3 & 4 are decided in negative because those ACRs after removal of adverse remark for year 2003-04 & 2006-07 were not taken into consideration by selection committee which ought to have been taken into consideration by selection committee for making assessment of applicant for promotion to IAS cadre.
Issue No. 547. This issue relates to effect of pendency of disciplinary proceedings against the applicant. It appears from the final select list that pendency of disciplinary proceedings against any officer has not been treated as an impediment for assessing the merit of officer. Such officers against whom disciplinary proceedings were pending and found otherwise suitable were placed in final select list by the selection committee. The perusal of records further reveals that officers who were placed in the final select list for appointment in IAS Cadre and against whom the departmental inquiry was pending, a note has been appended in the final select list that there appointment of IAS cadre would be subject to clearance of pending inquiry. Therefore, if the applicant would have been otherwise found fit he may be treated similarly. However, the applicant was not found fit. Hence, he has not been granted the benefit, which was granted to the others on account of pendency of the disciplinary proceedings.
48. Therefore, we are of the view that effect of pendency of the departmental proceedings as on date of consideration will not create any impediment in assessing the merit for promotion to IAS Cadre of the applicant if he is otherwise found fit to be place in the final select list.
49. After considering all the facts and circumstance of the case and legal proposition of law we are of the firm view that the decision taken by the selection committee relating to applicant was based on such material which ought not to have taken into consideration by selection committee.
24O.A. 45 of 2014 The state government has also not placed the correct and complete records relating to ACR of the applicant for the year 2003-04 and 2006-07. The State Government has also not placed the relevant rules of 1995 before selection committee. The non-consideration of material which ought to have been taken into consideration by selection committee materially and substantially effected the decision and assessment made by the selection committee with regard to the applicant. The integrity treated to be withheld was based on ACR recorded in 2003-04 but actually the decision of State Government to withhold the integrity was cancelled on the basis of representation given by the applicant. The State Government itself as stated herein above, taken a decision to expunge the adverse remark of 2003-04 before 14.10.2013, the date on which meeting of selection committee was held in which the decision to declare the applicant unfit was taken.
50. The stand taken by State Government with regard to ACRs of 2003-04 and 2006-07 that the same were not taken into consideration has no legs to stand as is evident from minutes of selection committee reference of which has been given in paragraph No. 4 of this judgment.
51. In view of the above, we are the firm view that this petition deserves to be allowed.
52. Consequently the O.A. is allowed. The impugned decision of selection committee taken on 14.10.2013 for assessment of applicant for promotion/appointment to IAS cadre is set-aside with following directions to the respondents:
(a) The Government of Uttar Pradesh is directed to submitted entire record of ACRs for the year 2003-04 and 2006-07 of the applicant within two weeks from the date of communication of this order to the selection committee for consideration of candidature of the applicant along with the decisions taken in respect of ACRs of aforesaid two years by the State Government prior to 14.10.2013 and U.P. Servants (Disposal of representations against Annual Confidential Report and Alleged 25 O.A. 45 of 2014 Matters) Rules, 1995 for re-evaluation by selection committee.
After receipt of aforesaid material the selection committee shall reconsider the merit/suitability of applicant for promotion/appointment in IAC Cade against the vacancies of year 2012.
(b) Whole exercise should be completed within a period of two months from the date of communication of this order by concerned respondents.
(c) In case the applicant is found fit the recommendation be transmitted to all concerned including the competent Government/ UPSC for consideration of the claim of promotion to IAS against the vacancies of year 2012 within 2 weeks thereafter. The Competent Government shall take appropriate decision within 4 weeks thereafter with regard to applicant in accordance with law.
53. However, there shall be no order as to costs.
(Dr. Nandita Chatterjee) (Justice V.C. Gupta)
Member (A) Member (J)
JNS/-
26