Central Administrative Tribunal - Ernakulam
Suresh Kumar K S vs M/O Home Affairs on 25 November, 2021
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00528/2020
&
Original Application No.180/00444/2021
Thursday, this the 25th day of November 2021
CO RAM:
HON'BLE Mr.P.MADHAVAN, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Original Application No.180/00528/2020
Suresh Kumar.K.S.,
Aged 59 years,
S/o.late V.Krishnan,
Retd. Superintendent of Police,
CBCID, PHQ, Thiruvananthapuram - 695 003.
Residing at TC 93/462, Sreelasyam,
Kallumoodu, Anayara P.O.,
Thiruvananthapuram - 695 029. ...Applicant
(By Advocate Dr.K.P.Satheesan, Sr. along with Mr.A.Rajasimhan)
versus
1. Union of India represented by its Secretary,
Ministry of Home Affairs, North Block,
New Delhi - 110 012.
2. Union Public Service Commission,
represented by its Secretary,
Shahjahan Road, New Delhi - 110 069.
3. Selection Committee for Indian Police Service
represented by its Chairman,
Union Public Service Commission,
Shahjahan Road, New Delhi - 110 069.
4. Chairman, Selection Committee for Indian Police Service,
Union Public Service Commission,
Shahjahan Road, New Delhi - 110 069.
5. State of Kerala represented by its Additional Chief Secretary,
Department of Home, Government Secretariat,
Thiruvananthapuram - 695 001.
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6. K.B.Ravi, Sree Kailas,
PLRA-20, Pallichal, Nemom P.O.,
Thiruvananthapuram - 695 020.
7. Rajendran.S., Ajantha Bhavan,
Chekkedy, Poovar P.O.,
Thiruvananthapuram -695 525.
8. Rajeev.P.B., Panayath House,
Madakkthara P.O., Thrissur - 680 651.
9. Thambi.S.Durga Dutt,
Nandiyar House, TC 10/196(5),
Swathy Nagar Lane-2, House No.48(C),
Paippinmoodu, Peroorkada P.O.,
Thiruvananthapuram - 695 005.
10. Rathish Krishnan, Madamanasree,
Near Sreekrishna Temple, Thodupuzha P.O.,
Idukki - 685 584.
11. Tomy Sebastian, Chiramattel House,
CN - 145 - A, Church Nagar,
Angamaly, Ernakulam - 683 572.
12. Vijaya Kumar.N., TC4/12870,
Govindam, Kowdiar,
Thiruvananthapuram - 695 003. ...Respondents
(By Advocates Mr.Sinu.G.Nath, ACGSC [R1],
Mr.Thomas Mathew Nellimoottil [R2-4],
Mr.Imam Grigorious Karat, GP [R5]
& Mr.Rajesh Vijayendran & Mrs.Shameena Salahudeen [R6-12])
Original Application No.180/00444/2021
C.F.Robert,
S/o.S.Francis (late),
Aged 59 years,
Retired Superintendent of Police (Non-IPS),
Residing at 'Roshni', Chemmakkadu P.O.,
Perinad, Kollam - 691 603. ...Applicant
(By Advocate Mr.R.Sreeraj)
versus
1. State of Kerala represented by the Chief Secretary
to the Government of Kerala, Secretariat,
Thiruvananthapuram - 695 001.
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2. The Union Public Service Commission
represented by its Chairman,
Shajahan Road, New Delhi - 110 003.
3. Union of India
represented by the Secretary to the Government of India,
Ministry of Home Affairs, New Delhi - 110 001.
4. Selection Committee for Selection and Appointment
by Promotion to the Kerala Cadre of the Indian Police Service
for the year 2018 constituted under Regulation 5(3) of the IPS
(Appointment by Promotion) Regulations 1955 &
represented by its President Shri.Rajiv Nayan Choubey,
Member, UPSC, Shajahan Road, New Delhi - 110 003.
5. A.R.Premkumar,
Retired Superintendent of Police (Non-IPS),
Residing at 73/503 A, Thundiparambil House,
Karshaka Road, Pachalam, Vaduthala, Kochi - 23.
6. Ramachandran.T.,
Retired Superintendent of Police (Non-IPS),
Sangamithra, Venniyore, Nellivila P.O.,
Thiruvananthapuram - 695 523.
7. Jayakumar.K.,
Retired Superintendent of Police (Non-IPS),
Residing at EVRA 404, Opp. Carmel School,
Vazhuthacaud, Thiruvananthapuram - 695 014.
8. Mohanan.D.,
Retired Superintendent of Police (Non-IPS),
Residing at Aswathy, Chunakara South,
Charumoodu P.O., Mavelikkara, Alappuzha - 690 101.
9. Amose Mammen,
Retired Superintendent of Police (Non-IPS),
Residing at CC 48/1482, Rice Research Centre Road,
Ponnurunni East, Vyttila, Ernakulam - 682 019.
10. Shoukathali.A.P.,
Assistant Director,
Kerala Police Academy, Thrissur - 680 631.
11. Santhosh.K.V.,
Superintendent of Police,
Crime Branch, Malappuram - 676 504.
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12. Kuriakose.V.U.,
Superintendent of Police,
Vanitha Cell, Thycaud,
Thiruvananthapuram - 695 033.
13. Sasidharan S.,
Superintendent of Police,
Vigilance, Kozhikode - 673 016.
14. Rameshkumar.P.N.,
Deputy Commissioner of Police,
Administration, Ernakulam - 682 035.
15. Sunil.M.L.,
Superintendent of Police,
State Special Branch, Kozhikode - 673 661. ...Respondents
(By Advocates Mr.Imam Grigorious Karat, GP [R1],
Thomas Mathew Nellimoottil [R2 & 4],
Mr.V.A.Shaji [R3], Mr.M.P.Asok Kumar [R5]
& Mr.S.P.Aravindakshan Pillai & Mr.Anand.S.A [R14])
These applications having been heard on 28 th September 2021(OA
No.180/00528/2020), 2nd November 2021(OA No. 180/00444/2021) and
22.11.2021 the Tribunal on 25th November 2021 delivered the following :
ORDER
Per : Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER We are dealing with the matters agitated in the two O.As together as the issues raised are substantially similar.
2. In O.A.No.180/528/2020, the applicant, who is a retired Superintendent of Police (Non IPS) from the Kerala State Police Service, is aggrieved by the impugned orders passed by the Ministry of Home Affairs at Annexure A-6 and Annexure A-7, by which he has not been selected and appointed into the Indian Police Service (IPS) against the Select List of 2017 after the meeting of the Selection Committee of the Union Public Service Commission (UPSC) had been conducted. The applicant has -5- submitted that the reason for his non selection in the Select List of 2017 is due to a mistake in the Assessment Matrix for the Select Lists for both 2016 and 2017. He claims that the overall relative assessment after the assessment by the Selection Committee of his Annual Confidential Reports (ACRs) should have resulted in a classification of 'Outstanding' or 'Very Good' whereas he has been classified as only 'Good'. He, therefore, does not appear in the said Select Lists as the other candidates for selection in the zone of consideration had a minimum overall assessment of 'Very Good'. His main contention is that the Selection Committee, while considering the assessment of his ACRs for the relevant period 2012 to 2017, had arrived at a wrong conclusion on the overall assessment. He submits that in the 11 ACRs in this period, he had received the final grading of 'Outstanding' in as many as 8 ACRs and 'Very Good' in the remaining 3 ACRs. Thus, he should have been classified as 'Outstanding' in the overall assessment for preparing the Select List of 2016. The mistake committed in the overall assessment for the Select List of 2016 has been repeated in the Select List for 2017 even though it is mandated that each year's assessment should be separate and independent.
3. In O.A.No.180/444/2021 the applicant is a retired Superintendent of Police (Non IPS) who has a similar grievance regarding the overall assessment of his ACRs by the Selection Committee. In his case the grievance pertains to the Select List of 2018. He submits that it has been clearly revealed from the matrix of the Selection Committee Meeting held -6- on 24.06.2021 for preparation of the 2018 Select List for promotion to the IPS of Kerala Cadre, that the Selection Committee, while assessing his ACR for the year 2014, had ignored the upgradation of his ACR for the period from 01.07.2014 to 31.12.2014 from 'Good' to 'Very Good', even though this had been communicated by the Government of Kerala to the UPSC vide letter dated 20.10.2020. It is submitted by him that the Selection Committee blindly followed the overall assessment of 'Good' given by the previous Selection Committee (Selection Committee for the year 2017) which had met on 07.08.2020, ie., prior to the upgradation and intimation to the UPSC of the upgraded ACR of the applicant. This mistake of the 2018 Selection Committee has resulted in his overall assessment being retained as 'Good' as done in the Select List 2017. This has resulted in his non inclusion in the list of officers eligible for appointment by promotion to the IPS as per the Select List 2018. His submission is that he was having a grading of 'Very Good' for four years, i.e., for 2014, 2015, 2016 & 2017 and a grading of 'Good' for the remaining year 2013, out of the 5 years ACRs considered by the Selection Committee for the overall assessment for the Select List of 2018. Going by these gradings, he was thus entitled to have an overall assessment of 'Very Good'. He has produced a copy of the matrix of the Selection Committee Meeting held on 24.06.2021 for preparation of the Select List of 2018 at Annexure A-1 in the O.A to substantiate his point.
4. The second O.A, No.180/444/2021, will be the lead case as we examine the matter further as there have been detailed submissions by both sides in the same. It is submitted in this O.A that the applicant had retired -7- from the State Police Service on 31.01.2018, on attaining the age of 56 years, while working as Superintendent of Police (Non IPS). It is submitted that the applicant is the recipient of two UN Medals for missions in Kosovo and Congo, thirteen Good Service Entries, one cash award and three appreciation letters in his career. He did not make it to the Select List for 2016 and 2017 though he was in the zone of consideration, as he had been given an overall assessment of 'Good' for the Select List of 2016 as well as the Select List of 2017. He submits that his ACRs for the year 2014, when the Selection Committee for 2017 met on 07.08.2020, reflected a final grading of 'Very Good' for the period from 02.01.2014 to 30.06.2014 and 'Good' for the period from 01.07.2014 to 31.12.2014. Hence, he submits that the 2017 Selection Committee had assessed him 'Good' for the year 2014. He submits the matrix for the Select List for 2017 as proof in this regard at Annexure A-2. The applicant submits that after the meeting of the 2017 Selection Committee was held, the Government of Kerala upgraded the grading of his ACR for the period from 01.07.2014 to 31.12.2014 for the year 2014 from 'Good' to 'Very Good' as per a G.O issued by the Kerala Government dated 08.09.2020, produced at Annexure A-5. This was communicated by the Government of Kerala to UPSC on 20.10.2020. However, the Selection Committee which met much later on 24.06.2021 to finalize the Select List of 2018 apparently has not taken the upgradation into consideration and has simply retained his earlier overall assessment as 'Good'.
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5. The applicant has also referred to Regulations 5(4) and 5(5) of the IPS (Appointment by Promotion) Regulations 1955 which mandates that the Selection Committee should 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 and then prepare a list by including the required number of names, first from amongst the officers finally classified as 'Outstanding', then from amongst those similarly classified as 'Very Good' and thereafter from amongst those similarly classified as 'Good'. The order of names interse within each category shall be in the order of their seniority in the State Police Service. The applicant, being the senior most in the zone of consideration for appointment by promotion to the IPS for the year 2018, would have made it to the list of eligible officers for appointment by promotion to the IPS for the year 2018 and to the Select List 2018, had he been given an overall assessment of 'Very Good' and placed in the Select List of 2018. He submits that there were 11 vacancies in the Kerala Cadre of IPS for the year 2018 for promotion from the State Police Service. The applicant has also brought to notice the relevant guidelines of the UPSC, produced in the O.A at Annexure A-6, which clarify the procedures for categorization of State Civil/Police/Forest Service officers and preparation of a list of suitable officers by the Selection Committee for promotion to the Indian Administrative Service/Indian Police Service/Indian Forest Service in terms of Regulations 5(4) and 5(5) of the Regulations. He draws attention to Section B of the guidelines - Procedure for Assessment - where under B.3 (Overall Assessment/Categorization of officers) at Paragraph 4.4 (B) it has been mentioned that while finalizing the overall assessment of the -9- officers, an officer shall be graded as 'Very Good' if in the opinion of the Selection Committee, his ACRs reflect that the officer has done highly meritorious work and possesses positive attributes and these characteristics are reflected in at least four of the last five ACRs as indicated in paras 3.1 and 3.2 of the guidelines, provided that he is graded at least 'Good' in the ACR of the remaining year. The referred paras 3.1 and 3.2 of the same guidelines appear under Section A, which relate to the Span/Scope of Assessment. These paragraphs make it clear that the Selection Committee would go through the service records of each of the eligible officers, with special reference to the performance of the officer during the last five years including the vacancy year, and after deliberation will record the assessment of the Committee in the Assessment Sheet comprising the Assessment Matrix (Officer x Year wise assessment) and the column for Overall Assessment of the officers. Further, in para 3.2 it is stated that as the Selection Committee actually meets in the year following the vacancy year, the ACRs upto the year ending 31 st March (where ACRs are written on a financial year-wise basis) or 31 st December (where ACRs are written on calender year-wise basis) of the vacancy year are to be taken into consideration by the Selection Committee.
6. The applicant submits that these guidelines, especially, what has been mentioned at para 4.4 (B) of Section B.3 relating to assessment as 'Very Good' underline his claim that had the Selection Committee taken into account the G.O issued by the Government of Kerala at Annexure A-5 and the fact that the ACR produced at Annexure A-4 had undergone an -10- upgradation, he would have been assessed 'Very Good' for the year 2014 by the Selection Committee and as a consequence would have been awarded an overall assessment of 'Very Good' in his assessment matrix, as he would have had four 'Very Good' and one 'Good' for the relevant years of assessment. This, in turn, would have resulted in his placement in the Select List 2018 and appointment into the IPS. Further, the ACRs reflect that he had done highly meritorious work and possessed the required positive attributes. These characteristics were reflected in four of the last five ACRs ie., 2014, 2015, 2016 and 2017 and he was graded 'Good' in the remaining year 2013 as well. He only came to know about his non selection when his juniors in the zone of consideration, who are Respondents 5 to 15 in the O.A., were asked to submit the filled up proforma and declaration, while he was not asked to do so. He then submitted a representation vide Annexure A-7 to the 2nd respondent seeking immediate redress as he would be completing 60 years of age in January, 2022. In this representation he again brought to notice that he had been given an upgradation in the ACR for the period from 01.07.2014 to 31.12.2014 to 'Very Good'. Later, he also came into possession of his actual assessment matrix through an RTI application, produced in the O.A at Annexure A-1, where it is clearly indicated that his assessment of the last five years had resulted in an overall assessment of 'Good'. This was taken into account while preparing the Select List of 2018 by the Selection Committee in its meeting held on 24.06.2021. It is submitted that it is clear from the assessment matrix that his upgradation in 2014 was not taken into account as his assessment for 2014 is being retained as 'Good'. The assessment for 2015, 2016 and 2017 are shown as -11- 'Very Good' and for 2013 as 'Good'. An RTI query to the effect as to whether the Government of Kerala's upgradation of his ACR for part of 2014 vide Annexure A-5 was shown to the Selection Committee resulted in an evasive reply which seemed to avoid giving the information (Annexure A-7A). Thus, it is submitted that the Committee took into account that he had three 'Very Good' and two 'Good' and gave him an overall assessment of 'Good' only. The minutes of the Selection Committee Meeting which met on 24.06.2021, produced at Annexure A-8, also reveal that although he was at No.1 in the zone of consideration, his overall relative assessment was retained as 'Good' and thus he was "superceded" on this basis by his juniors.
7. Another point made by the applicant is that the 2018 Selection Committee contains the names of two other oficers of the SPS, Shri.D.Mohanan and Shri.T.Ramachandran, both of whom got their ACRs upgraded like he did. However, while they got the benefit of upgradation of their ACRs in the assessment of the Selection Committee and an overall assessment of 'Very Good', he has been denied similar treatment and his overall assessment has been kept at 'Good' only as in the 2017 Select List which is a case of discrimination and denial of equal justice. The applicant specifically draws attention to the case of Shri.T.Ramachandran. Shri.T.Ramachandran was given an overall assessment of 'Good' by the Selection Committee 2017 as can be seen at Annexure A-9 Minutes of the Selection Committee for the Select List 2017 held on 07.08.2020. Subsequently, however, after the grading of Shri.T.Ramachandran for his 2014 ACR from 01.01.2014 to 31.12.2014 was upgraded to 'Very Good' by -12- the Government of Kerala, it appears that the Selection Committee for 2018 Select List awarded an overall assessment of 'Very Good' by modifying the earlier assessment of 'Good' by the previous Selection Committee as shown in the Minutes of the Selection Committee held on 24.06.2021, at Annexure A-8. As regards specific dates it is submitted that the change in the grading of Shri.T.Ramachandran to "Very Good" for the 2014 ACR was done by the Government of Kerala on 13.10.2020, whereas in the case of the applicant the 2014 part ACR was upgraded to 'Very Good' on 08.09.2020. The Government Order in respect of the applicant was forwarded to the UPSC as early as on 20.10.2020. However, when the 2018 Selection Committee met on 24.06.2021 they appear to have only taken into account the upgraded assessment of Shri.T.Ramachandran and not the upgraded assessment of the applicant, whereas both upgradations related to the very same year, 2014.
8. Thus, in essense, the grounds which have been submitted by the applicant are that :
(a) The 2018 Selection Committee should have taken into consideration the Government Order issued by the Government of Kerala vide Annexure A-5 and upgraded the assessment as 'Very Good' since his whole 2014 ACR in both parts had become 'Very Good'. Instead, the Committee they mechanically followed the grading given by the previous Selection Committee and retained his 2014 ACR grading as "Good" while meeting for preparation of the 2018 Select List. This has, therefore, affected his selection and appointment to the IPS.-13-
(b) There is a clear discrimination vis-a-vis his junior Shri.T.Ramachandran, who had a similar issue with 2014 ACR. The respondent, State Government issued an order upgrading Shri Ramachandra's ACR for the year 2014 to 'Very Good', as in the case of the applicant, where the State Government issued an order upgrading the ACR for the part of the year 2014 to 'Very Good', thus making the entire year's grading "Very Good". However, the 2018 Selection Committee took into account only the upgradation of ACR in the case of Shri.T.Ramachandran and granted him the overall assessment of 'Very Good'. In the case of the applicant they have adopted a different yardstick for no apparent reason.
Hence, it is submitted that taking into account the upgradation of the 2014 ACR only in respect of Shri.T.Ramachandran and not in the case of the applicant, is illegal, arbitrary, unjust, unreasonable and discriminatory.
(c) The IPS (Appointment by Promotion) Regulations do not provide for a suo motu review of the Select List already prepared, once it has been approved by the 2nd respondent, UPSC and acted upon by the 3 rd respondent, Ministry of Home Affairs. However, the Annexure A-6 guidelines of the UPSC acknowledge that sometimes, on specific directions of competent courts, the Select Lists are required to be reviewed and thus the interference of this Tribunal is very much called for.
(d) The Regulations 6 & 7 of the IPS (Appointment by Promotion) Regulations, 1955 mandate the UPSC to apply its mind to the relevant facts before approving the list prepared in accordance with Regulation 5 of -14- eligible officers. It is prescribed that the State Government will forward, with observations on recommendations of the Committee along with the list, the records of not only those included in the list, but also of those proposed to be superceded. The purpose, it is submitted, is to give the UPSC an effective opportunity to correct the mistakes, if any, of the Selection Committee before final approval of the Select List. Hence, it is submitted that the UPSC is bound to explain whether they had examined the noticeable omission on the part of the Selection Committee to take into account the upgradation of ACR of the applicant which has been to the advantage of his junior, Shri.T.Ramachandran and why they did not do so.
9. In the case of the applicant in O.A.No.180/528/2020 the main plea, as brought out earlier, is that the ACR gradings from 2012-2017 for the selection process had a total of 8 'Outstanding' and 3 'Very Good' as the final grading and hence he should have been overall assessed as 'Outstanding'. Though the applicant does not press the point, this was not done even in the earlier assessment for the 2016 Select List where he was given an overall assessment as 'Good'. For the 2016 Select List for appointment to the IPS from Kerala Quota there were 13 vacancies and the applicant was one among 29 eligible officers found fit for consideration. However there were many seniors above him and there would not have been sufficient vacancies even if he had been assessed 'Very Good' since no one had been assessed 'Outstanding'. He states that his assessment of 'Good' for the Select List 2016 was wrong but he did not press the point very much at that stage, as there was no prospect for him to get a promotion for want of vacancies. -15- However, he did send review petitions to the Selection Committee and to the Additional Chief Secretary in charge of Home Department of the State soon after the meeting of the Selection Committee for the Select List 2016 was held on 04.07.2018. These petitions dated 08.11.2018 have been produced at Annexure A-2 in the O.A. He received a response, at Annexure A-3, from the State Government that they are not the authority to review the assessment. The Selection Committee however did not respond to the review petition. He did not approach this Tribunal at that time as there was no prospect for him to get allotted in the 2016 Select List for lack of vacancies. When he later learned that the Selection Committee was going ahead with the same assessment of 2016 for the preparing the Select List 2017 for promotion to the IPS vacancies of 2017, he sent another e-mail request to the 3rd respondent, Selection Committee, on 27.08.2020, along with a request in hardcopy on the same date, produced at Annexure A-5. He then approached this Tribunal in O.A.No.409/2020 seeking a direction to consider the representation before finalization of the Select List 2017. However, the O.A was opposed by the respondents who kept seeking time to file reply. Meanwhile, the Selection Committee Meeting was held and the Select List 2017 was notified on 30.09.2020, produced at Annexure A-6. He then withdrew the O.A No: 409/2020 on 21.10.2020 with liberty to challenge the notification. He claims that the Annexure A-6, Annexure A-7 (Select List for 2017 and Notification for appointment into the IPS from the Select List 2017) are illegal as they have arbitrarily omitted his name. He, thus, also claims that the scrutiny of his ACRs was not done properly by the Selection Committee and they have arrived at a wrong overall assessment. -16-
10. In addition, the same applicant also stakes a claim for promotion on the fact that he has an outstanding service in Kerala Police and is a recipient of the meritorious service medal from the Hon'ble President of India in the year 2016. The guidelines for the award of President's medal stipulate a performance of the grade 'Very Good' for the past 10 years as eligibility for consideration. In fact, he claims that his performance all along has been either 'Outstanding' or 'Very Good' and it was never 'Good'.
11. Very similar replies have been filed by the respondent State Government of Kerala in both the O.As. Essentially, in the replies filed by them, they have taken the position that the assessment of the service records of the candidates, giving the grading and preparation and notification of the Select List are the prerogatives of the Selection Committee and they have no specific role in the matter. It is submitted that it is the function of the Selection Committee to decide as to how to categorize the officers in the light of the relevant records and what norms are to be applied in making the assessment. It is submitted that the authority for selection of candidates is exclusively vested with the Selection Committee.
12. The party respondents in the O.A.No.180/444/2021 have not filed any reply statement. The party respondents (at serial nos. 6 to 12) in O.A.No.180/528/2020 have filed a reply statement stating that while they are not in a position to comment about the entitlement for promotion of the applicant, it is evident to them that the entire selection process has been -17- done after complying with all procedural and statutory requirements and is devoid of any laches whatsoever. Further, they submit that they themselves, who have been selected for promotion vide Annexure A-6 and Annexure A- 7 Orders, are fully competent and eligible to be included in the said list, considering their past meritorious service as evident from their service records. It is submitted that the statement made by the applicant in the O.A that the Selection Committee mechanically went by the earlier assessment of 2016 in preparing the Select List of eligible officers for the vacancies of 2017 due to the Covid-19 situation is totally incorrect and baseless. It is submitted that the Selection Committee had convened a separate meeting on 07.08.2020 as is evident from Annexure A-6 and Annexure A-7 and had independently assessed the performance of all aspirants before finalizing the list of selected candidates for the year 2017. The Respondents at serial no: 6 to 12 were selected based on their past overall meritorious performances. Hence, they submit that the Select List has been prepared by the Respondents 1 to 4 as per the guidelines laid down and there is no illegality or arbitrariness in it.
13. The main respondents are the UPSC/Selection Committee. They have filed a very similar replies through their nodal counsel in both the O.As. It is submitted by them that in accordance with the provisions of the IPS (Appointment by Promotion) Regulations, 1955, the Selection Committee in the UPSC, presided over by the Chairman/Member of the UPSC, makes selection of State Police Service officers for promotion to the Indian Police Service. The number of vacancies against which selection is to be made for -18- a particular Select List for promotion to the IPS of a State Cadre is determined as per the Regulation 5(1) of these Regulations by the Government of India (Ministry of Home Affairs) in consultation with the State Government concerned, after which, the State Government forwards a proposal to the Commission along with the seniority list, eligibility list (upto a maximum of three times the number of vacancies) of the State Police Service Officers, Integrity Certificates and other certificates which are required, along with complete ACR dossiers of the eligible officers. After all the documents are received and after an examination by the Commission for completeness and resolving of deficiencies, the same are placed before the Selection Committee, when they meet for preparation of the Select List for promotion of SPS Officers to the IPS. The provisions Regulations 5(4) and 5(5) relating to classification of the eligible State Police Service officers included in the zone of consideration as 'Outstanding', 'Very Good', 'Good' or 'Unfit', as the case may be, on an overall relative assessment of their service records is scruplously followed by the Selection Committee. Thereafter the Selection Committee prepares a list by including the required number of names as indicated. It is submitted that the ACRs of the eligible officers are the basic inputs as per the extant guidelines of the Commission, 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). It is submitted that the Selection Committee is not guided merely by the overall grading that may be recorded in the ACRs. In order to ensure justice, equity and fair play the Committee makes its own assessment on the basis of indepth examination of service -19- records of eligible officers, deliberating on the quality of the officer on the basis of performance as reflected under various columns recorded by the Reporting Officer/Reviewing Officer/Accepting Authority in the ACRs for different years. It then finally arrives at the classification to be assigned to each eligible officer in accordance with provisions of Promotion Regulations. Further, while making the overall assessment, the Selection Committee takes into account orders regarding appreciation for meritorious work done by the concerned officer. It 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. The guidelines relating to finalizing the overall assessment of the officer at 'Outstanding', 'Very Good' etc. are very clear and how, say, an assessment of 'Very Good' has been arrived at, has been indicated earlier while summarising the submission of the applicant in O.A.No.180/444/2021. Most importantly, it is submitted that over and above these requirements, as per the provisions of Regulations 6 and 6-A, the State Government concerned as well as the Central Government are required to furnish their observations on the recommendations of the Selection Committee. After taking into consideration the observations of the State Government and the Central Government and all the requisite records received from the State Government, a final decision is taken by the UPSC on the recommendations of the Selection Committee, with or without modifications in terms of the provisions of Regulation 7. Thereafter, the appointments to the IPS are made from the Select List by the Government of India, Ministry of Home Affairs. Further, Regulation 7(4) also provides that -20- the Select List would remain in force till the 31 st day of December of the year in which the meeting of the Selection Committee has been held with a view to prepare the list under sub-regulation (1) of regulation 5, or, upto 60 days from the date of approval of the Select List by the Commission under sub-regulation (1), or, as the case may be finally approved under sub- regulation (2), whichever is later. The same procedure is uniformly followed for all the States/Cadres in the matter of induction to the All India Services.
14. With regard to the specific contentions of the applicants in the two cases, in the O.A.No.180/444/2021 it is submitted by the UPSC that the names of the applicant and Shri.T.Ramachandran,who is the 6 th respondent, were considered in by the Selection Committee Meeting held on 24.06.2021 to prepare the Select List of 2018 as they appeared at serial No. 1 and 3 in the eligibility list. On the basis of service records the applicant was assessed overall as 'Good', whereas, Shri.T.Ramachandran was assessed overall as 'Very Good'. On the basis of this assessment, the applicant was not included in the Select List of 2018 due to the availability of officers with better grading ('Very Good') and the statutory limit on the size of the Select List. Shri.T.Ramachandran (the 6th respondent) was included at Sl.No.2 in the Select List of 2018 for promotion to IPS of Kerala Cadre, as were Respondent Nos.5 and 7 to 15, who were at SI.Nos.2, 4, 6, 7, 8, 10, 11, 12, 13 and 14 of the eligibility list respectively. On the assessment of their service records, all the respondents were individually assessed overall as 'Very Good' and on the basis of this assessment, the Respondents No.5 and 7 -21- to 15 were included in the Select List of 2018 at Sl.No.1 & 3 to 11 respectively. The recommendations of the Selection Committee were later approved by the Commission on 03.08.2021 and then acted upon by the Government of India, Ministry of Home Affairs by notification dated 30.09.2021. It is submitted that there is a lack of understanding of the Indian Police Service (Appointment by Promotion) Regulations, 1955 and the relevant Guidelines and also the relevant facts by the applicant in these O.As. First, as mentioned earlier, the Selection Committee is not guided merely by the overall grading in the ACRs but makes its own assessment on the basis of an indepth examination of service records of eligible officers, deliberating on the quality of the officer on the basis of performance as reflected under various columns recorded by the Reporting Officer/Reviewing Officer/Accepting Authority in the ACRs for different years. It then finally arrives at the classification to be assigned to each eligible officer in accordance with the provisions of the IPS (Appointment by Promotion) Regulations. For preparation of the Select List of 2017, the Selection Committee went through the Service Records of the eligible candidates for the period from 2013 to 2017 (total 5 years). The applicant in O.A 444/2021 was assessed overall as 'Good' because the Selection Committee had assessed his two ACRs as 'Good' for the years 2013 and 2014 and the remaining three ACRs as 'Very Good' for the years 2015, 2016 and 2017. The Selection Committee that met on 24.06.2021 for preparation of the Select List of 2018 went through his service records for the period from 2014 to 2018, including his upgraded ACR for the period from 01.07.2014 to 31.12.2014. The Committee assessed him overall as 'Good'. -22- On the basis of this assessment he was not included in the Select List of 2018 for promotion to IPS of Kerala Cadre due to availability of officers with better grading ('Very Good') and statutory limit on the size of the Select List. It is further submitted that the Selection Committee did not mechanically arrive at the assessment of 'Good' by not taking into account the upgraded ACR of 2014 as has been alleged. It had gone through all the parameters of the upgraded ACR of 2014 and made its own assessment for 2014. It is submitted that how to categorize in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee. Such jurisdiction to make the selection is vested in the Selection Committee, as has been held by the Hon'ble Supreme Court in UPSC vs. H.L.Dev & Ors. (AIR 1988 SC 1069).
15. Further, in the specific case of the applicant in O.A. 444/2021 it is submitted that the ACR for the year 2018 was not available and a 'No Report Certificate' was placed in the CR Dossier, as it may be noted that the applicant had retired from the State Government service on attaining the age of 56, on 31.01.2018. Hence, as per the given Guidelines, the Committee had gone back and assessed the ACR of 2013, in place of 2018. His assessment for 2013 was assessed as 'Good'. In view of this,out of five ACRs assessed, his two ACRs of 2013 and 2014 were assessed as 'Good', whereas his three ACRs of 2015, 2016 and 2017 were assessed as 'Very Good', because of which he was assessed overall as 'Good'. In the case of Shri.T.Ramachandran, who was assessed for the Select List of 2017, the -23- Committee took into account his ACR for the period from 2013 to 2017. It can be seen from the Assessment Report, that his assessments for 2013 and 2014 were 'Good' and 2015, 2016 and 2017 were 'Very Good', resulting in an overall relative assessment of just 'Good' for Select List of 2017. However, when he was being considered in the Eligibility List for preparation of the Select List of 2018, the Committee, which met on 24.06.2021, went through the service records for the period from 2014 to 2018, including the upgraded ACR of the period from 09.01.2014 to 31.12.2014, and assessed him overall as 'Very Good'. On the basis of this assessment, he was included at Sl.No.2 in the Select List of 2018. Contrary to the contentions of the applicant, the Selection Committee had assessed the 'upgraded' ACR of 2014 of Shri.T.Ramachandran as 'Good' and not as 'Very Good'. He was assessed overall as 'Very Good' only because the Selection Committee had assessed four of his ACRs as 'Very Good', for the years, 2015, 2016, 2017, 2018 and one ACR as 'Good' for the year 2014. As per the guidelines, an officer is assessed overall as 'Very Good', if out of five years, the Selection Committee assessed four ACRs as 'Very Good' and the remaining ACR as 'Good'. Thus, it is clear from the above that the assessment for Shri.T.Ramachandran for the Select List 2017 took into account his ACRs for the period from 2013 to 2017 whereas in the assessment for the Select List of 2018, took into account his ACRs for the period from 2014 to 2018, including also the upgraded grading for 2014. In his case the upgraded grading did not result, even after the assessment of the Selection Committee, in any change in the assessment for 2014, as it was again assessed 'Good', even after the upgraded ACR was received. From the -24- information provided from in tables of the assessment made for the two Select Lists of 2017 and 2018, it is therefore clear that the Selection Committee had considered the upgraded ACRs of 2014, in respect of the applicant and Shri.T.Ramachandran, and had then assessed both the ACRs as 'Good'. It was only that, in the case of Shri T.Ramachandran for Select List of 2018, a different set of ACRs were considered in comparison to the previous Select List of 2017. The applicant in O.A.444/2021 having retired in January 2018, the Committee had to consider the same ACRs in his case for the Select List of 2018 as was done for the Select List of 2017, i.e., from 2013 to 2017 for both the Select Lists. In the case of Shri.T.Ramachandran, however, one new ACR of 2018 was available, which was assessed 'Very Good. Further, it is submitted that each Selection Committee is an independent Committee and makes its own norms for assessing the suitability of the State Service Officers for promotion to the All India Service. During the meeting, the Selection Committee is informed of the upgraded ACR, if any, communicated by the State Government along with grading assigned by the previous Selection Committee as well as the status of disciplinary/criminal proceedings, penalty etc. of each eligible officer in terms of the provisions of Regulation 5(4) of the Promotion Regulations. These procedures are uniformly applied across all the States/UTs. Thus it is submitted that clearly no discrimination against the applicant vis-a-vis Shri T. Ramachandran in the assessment of ACRs or any error or malafide by the Selection Committee is evident.
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16. It is further submitted by the learned counsel for the UPSC that the Hon'ble Supreme Court has reiterated in several judgments that the Selection Committee is empowered to make its own assessment. It is submitted that this function solely belongs to the Selection Committee and cannot be reviewed in Courts, unless there is a case of malafide or arbitrariness involved. The counsel for UPSC has submitted that in Union Public Service Commission v. M.Sathiya Priya & Ors. (Civil Appeal No.10854/2014), the Hon'ble Apex Court directed that the Regulations as well as the Guidelines are to be applied jointly at the time of making the selection list. The Hon'ble Apex Court held that the Regulations and the Guidelines jointly prescribe adequate procedure and they form a complete code in themselves. Further, it was held in Paragraph 15 of this judgement that the Selection Committee consists of experts in the field. It is presided over by the Chairman or a Member of the UPSC and is duly represented by the officers of the Central Government and the State Government, who have expertise in the matter. The Hon'ble Apex Court held that when a High Level Committee or an expert body has considered the merit of each of the candidates, assessed the grading and considered their cases for promotion, it is not open to the CAT and the High Court to sit over the assessment made by the Selection Committee as an appellate authority.
17. The Hon'ble Apex Court held (in paragraph 15) of M.Sathiya Priya & Ors., (supra) as follows : "The question as to how the categories are assessed in light of the relevant records and as to what norms apply in making the assessment, is exclusively to be determined by the Selection -26- Committee. Since the jurisdiction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the Courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. It is not the function of the Court to hear the matters before it treating them as appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body, i.e., the Selection Committee. The Courts have very limited scope of judicial review in such matters.
We are conscious of the fact that the expert body's opinion may not deserve acceptance in all circumstances and hence it may not be proper to say that the expert body's opinion is not subject to judicial review in all circumstances. In our constitutional scheme, the decision of the Selection Committee/Board of Appointment cannot be said to be final and absolute. Any other view will have a very dangerous consequence and one must remind oneself of the famous words of Lord Acton "Power tends to corrupt, and absolute power corrupts absolutely". The aforementioned principle has to be kept in mind while deciding such cases. However, in the matter on hand, it is abundantly clear from the affidavit filed by the UPSC that the Selection Committee which is nothing but an expert body had carefully examined and scrutinised the experience, Annual Confidential Reports and other relevant factors which were required to be considered before selecting -27- the eligible candidates for the IPS. The Selection Committee had in fact scrutinised the merits and demerits of each candidate taking into consideration the various factors as required, and its recommendations were sent to the UPSC. It is the settled legal position that the Courts have to show deference and consideration to the recommendations of an Expert Committee consisting of members with expertise in the field, if malice or arbitrariness in the Committee's decision is not forthcoming. The doctrine of fairness, evolved in administrative law, was not supposed to convert tribunals and courts into appellate authorities over the decision of experts. The constraints self-imposed, undoubtedly of writ jurisdiction still remain. Ignoring them would lead to confusion and uncertainty. The jurisdiction may become rudderless."
It was also held in Paragraph 16 of M.Sathiya Priya, supra, that "No doubt, the Selection Committee may be guided by the classification adopted by the State Government but, for good reasons, the Selection Committee may evolve its own classification which may be at variance with the grading given in the Annual Confidential Reports. As has been held by this Court in the case of UPSC vs.. K. Rajaiah and others (2005) 10 SCC 15, the power to classify as "Outstanding", "Very Good", "Good" and "Unfit" is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State authorities in the Annual Confidential Reports is not binding on the Selection Committee. Such classification is within the prerogative of the Selection Committee and no reasons need be recorded, though it is desirable that in a case of -28- grading at variance with that of the State Government, reasons be recorded. But having regard to the nature of the function and the power confined to the Selection Committee under Regulation 5(4), it is not a legal requirement that reasons should be recorded for classifying an officer at variance with the State Government's decision.....".
18. Further, the respondents have relied on Union of India vs. A.K. Narula, (2007) 11 SCC 10, where the Hon'ble Supreme Court has, in similar circumstances, observed that "the guidelines give a certain amount of play in the joints to DPC by providing that it need not be guided by the overall grading recorded in CRS, but may make its own assessment on the basis of the entries in CRs. DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms.....". Further, in M.V.Thimmaiah vs. UPSC, (2008) 2 SCC 119, the Hon'ble Supreme Court observed that "we fail to understand how the Tribunal can sit as an Appellate Authority to call for the personal records and constitute Selection Committee to undertake this exercise. This power is not given to the Tribunal and it should be clearly understood that the assessment of the Selection Committee is not subject to appeal either before the Tribunal or by the courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of ACRS of the candidates, one may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunals and the High Courts have started sitting as Selection Committee -29- or act as an Appellate Authority over the selection. It is not their domain, it should be clearly understood, as has been clearly held by this Court in a number of decisions....."
19. A very similar reply has been filed in O.A.No.180/528/2020 by the respondent - UPSC. It is mentioned therein that for finalising the Select List of 2016 the applicant was considered as he was at Sl.No.21 in the eligibility list. However, after the assessment of his service records, he was assessed overall as 'Good' and was thus not included in the Select List of 2016 for promotion to IPS of Kerala Cadre, due to availability of the officers senior to him with a better grading ('Very Good') and the statutory limit on the size of the Select List. For the Select List of 2017 the name of the applicant figured at Sl.No.6 in the eligibility list. After assessment of his service records, he was assessed overall as 'Good' and was thus not included in the Select List of 2017, for promotion to IPS of Kerala Cadre due to the availability of the officers with a better grading ('Very Good') and the statutory limit on the size of the Select List. The Respondents at 6 to 12 were considered at Sl.Nos.1, 3, 4, 7, 8, 9 and 10 of the list respectively. After assessment of their service records they were assessed overall as 'Very Good'. On the basis of this assessment they were included in the Select List of 2017 at Sl.No.1 to 7 respectively. It is submitted by the UPSC that the applicant on the basis of an attempted narrative is substituting his own judgment to that of the statutorily constituted Selection Committee by contending that the Selection Committee has wrongly classified him 'Good' instead of 'Outstanding'. It is reiterated (as in O.A.No.180/444/2021) that -30- each Selection Committee functions as an independent Committee and takes its own steps for assessing the suitability of the State Service Officers for promotion to the All India Services. In the case of the applicant, the Selection Committee had scrutinized the records from 2012 to 2016 for the Select List of 2016, whereas, for the Select List of 2017, the Committee had scrutinized the service records from 2013 to 2017. In the assessment for the Select List of 2016, it is seen that the applicant was assessed as 'Good' for 2013 and 2014 (two years) and as 'Very Good' for 2012, 2015 and 2016, (three years), which resulted in the overall relative assessment of 'Good'. For the Select List of 2017, it is seen that the applicant had been assessed with two 'Good' for 2013 and 2014 and three 'Very Good' for 2015, 2016 and 2017, which also resulted in the overall relative assessment of 'Good'. These independent assessments have thus resulted in him being assessed as 'Good' in the scrutiny by the Selection Committee for the Select Lists of 2016 and 2017. He could not therefore be considered for promotion as there were not enough vacancies and there were other eligible candidates with better grading of 'Very Good'.
20. We have heard learned counsel for the applicant Mr.R.Sreeraj in O.A.No.180/444/2021, learned counsels for the applicant Dr.K.P.Satheesan, Sr. Counsel and Mr.A.Rajasimhan in O.A.No.180/528/2020. We have also heard Mr.Thomas Mathew Nellimoottil, learned counsel for the UPSC/Selection Committee, Mr.Imam Grigorious Karat, learned GP for the State Government and counsel for the Party Respondents in both the O.As. -31-
21. Mr.R.Sreeraj, learned counsel for the applicant in O.A.No.180/444/2021 filed an argument note contesting the contentions made in the reply statement by the UPSC. During the course of hearing he submitted that the UPSC has ignored a major aspect of the applicant's case in that he is the recipient of the UN Medal, Good Service Entries, appreciation letters etc. Further his ACRs fully reveal that he has done highly meritorious work and possesses all positive attributes. These characteristics and attributes were reflected in four of the last five ACRs, as required by the Selection Committee as per paras 3.1 and 3.2 of Annexure A-6 Guidelines. No specific answer to this contention in the O.A. has been provided in the reply statement. Learned counel has however accepted that after the clarification given by the UPSC in their reply statement, any comparisons with respect to the ACR of Shri.T.Ramachandran for substantiating a plea of discrimination is not fully established and so is no longer being pressed by the applicant. However, there are other contentions which prove that he was denied a proper and fair consideration for appointment by promotion to the Kerala Cadre of the IPS for the year 2018. These contentions are detailed in the following paragraphs.
22. At the outset, learned counsel submits that UPSC is taking shelter behind the maxim "omnia praesumuntur rite et solemniter esse acta", which means that all things are presumed to have been done correctly and solemnly. Their arguments that, they (the UPSC), have their own ways to determine the merit of the candidates and that the Selection Committee has done independent assessment of the merit of each candidate and further that, -32- the Tribunal has no power to judicially review the correctness of their decision making process, is not acceptable and cannot be presumed. It is submitted that such a presumption - that the Selection Committee does an independent regular assessment - is rebuttable. A presumption that the Selection Committee constituted by the UPSC is making its own independent assessment, that it is not guided by the overall grading in the ACR, that the assessment grading of 'Good' given by the Selection Committee to him for the year 2014 is regular and correct, is thus also rebuttable. It is prayed that this Tribunal should examine whether the 2018 Selection Committeeand the UPSC have actually accorded the applicant a fair and reasonable consideration of his candidature, for appointment by promotion to the Kerala Cadre of the IPS for the year 2018. It is submitted that the Selection Committee for 2018 simply blindly followed the assessment given by the previous Selection Committee in 2017 for considering the same ACRs and that both the Committees gave the very same assessment for each year. In the case of Shri.T.Ramachandran as well, both the Selection Committees gave the very same assessment for the ACRs of the years 2014, 2015, 2016 and 2017. Thus, it is clear that the 2018 Selection Committee had simply followed the assessment of the 2017 Selection Committee for these years. It is for the UPSC and the 2018 Selection Committee to convincingly establish that the similarity in the assessment to the 2017 Selection Committee is only a coincidence and that the 2018 Selection Committee had actually independently assessed each record and arrived at its own assessment. The UPSC has only made very bald statements and assertions on the basis of presumption of regularity of -33- their action in its reply. Nothing is provided to controvert the clear possibility of a blind repetition of the earlier assessment. The learned counsel for the respondent submits on the other hand that these contentions cannot be accepted, as it has been established by the records provided that there were independent assessments by the Selection Committee each year. The minutes of the meetings show that independent assessments were done by the Selection Committees for the Select Lists of 2017 and 2018. The records show that the Committees took into account all relevant issues, which are required as per the Regulations governing the functioning of the Selection Committee as well as in the Guidelines. The learned counsel for respondent submits that it has not been established anywhere that any malafide or discriminatory steps were taken by the Committee or that there has been no proper assessment of the ACRs provided. Moreover, the cases brought on record by the respondents (UPSC), particularly, M.Sathiya Priya (supra), H.L.Dev (supra) and M.V.Thimmaiah (supra) clearly lay down the findings of the Hon'ble Apex Court that no Court can sit in judgement over these assessments, and thus become a super Appellate Authority over the assessment made by the Selection Committee, as long as these assessments are not vitiated by on the ground of bias, malafide or arbitrariness. In fact the Hon'ble Apex Court has gone out so far as to say that the expertise of the Selection Committee cannot be questioned and that the doctrine of fairness, evolved in administrative law, is not supposed to convert Tribunals and Courts into appellate authorities over the decision of experts.
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23. We have carefully considered these rival contentions. Even though it is to be accepted that the decision of the Selection Committee is final and absolute, we are to be guided by the facts of the particular case; like whether, the expert body ie. the Selection Committee did carefully examine and scrutinise the experience, ACRs and other relevant factors which were required to be considered before selecting the eligible candidates for IPS in these two cases. We do not find, not withstanding the arguments by the Learned Counsel for the applicants, any indication this was not done in the finalisation of the Select Lists for 2016, 2017 or 2018, which are being dealt with in these two O.As. Independent assessments seem to have been made and all records scrutinised. We also agree with the position that the grade upgradation given by the State Government authorities for the 2014 ACR for the applicant in O.A.444/2021 is not binding or sufficient for the Selection Committee to change its own assessment for the same year for the applicant. Such classifications/assessments are within the prerogative of the Selection Committee and do not follow a one to one linear approach. Further, no reasons, need to be recorded as per the proceedings or Regulations or by any court decisions in such matters of assessment. The nature of the functions and the powers conferred on the Selection Committees under Regulation 5(4) does not imply that it is a legal requirement for reasons to be recorded for assessing an officer perportedly at variance with a State Government's grading for any year. Given the clear dirctions by the Hon'ble Apex Court, as brought out earlier, our options in these matters are limited, unless, as has been mentioned, there has been explicit bias or arbitrariness established or there is a strong lacunae in the -35- procedure, amounting to a complete questioning of the very basis of the Selection Committee's recommendations. A Tribunal thus cannot question or interfere with the assessment made by the Selection Committee in regular cases. When it is submitted on record that the Committee had taken into account the meritorious work as well as the positive attributes of all the candidates, it cannot be established that such attributes and characteristics were not considered, while arriving at the overall assessment for the period under review in the two cases. As mentioned, a simple upgradation of one ACR, in the case of the applicant in O.A.No.180/444/2021 for 7 months from 'Good' to 'Very Good' for the year 2014, need not automatically result in the Selection Committee itself being bound to change its assessment. The Committee is guided by various factors, including the recording and comments in response to each point of the ACR as recorded by the Recording Officer/Reviewing Officer or the Appellate Authority. Thus, by selectively quoting different comments made by the Reporting Officers and Reviewing Officers in different ACRs and therefore concluding that someone should have been assessed at least as 'Very Good' as is being done in the case of the two applicants cannot be accepted. In any case, we are of the opinion after going through the ACRs concerned that it would not immediately lead to a direct conclusion that a fatal mistake was done in both cases by the UPSC in assessing the 2014 performance as 'Good'.
24. Further we note that the State Government in both cases has submitted that it is within the competence of the Selection Committee to make the final assessment. It is also to be noted that the Selection -36- Committee consists of representatives of the State Government. The Selection Committee for the Select List 2018 had three representatives, namely, the Chief Secretary, Director General of Police and the Principal Secretary, Home and Vigilance of the State Government, while there was only one representative from the Centre, being the Inspector General, CRPF. The meeting was presided over by the Member, UPSC. It is not recorded in the meeting that any objection was made to the overall assessment by any member of the Committee while assessing the cases of all the candidates. Thus, in the absence of anything to the contrary, as mentioned earlier, we have to accept that the Selection Committee has done its job as per the procedures laid down, without any bias or malafide. It cannot thus be accepted that there has been no scrutiny done independently by the Committee and that the conclusion arrived at after the scrutiny does not fulfil the test of reasonableness as per the Wednesbury Principles. All aspects in the relevant ACRs have been examined as per the statement by the UPSC. It has also been submitted that the track records of the applicants in both the cases have also been gone through, including the fact that in O.A.No.180/528/2020 the applicant is the recipient of Presidential award and that in O.A.No.180/444/2021 the applicant has received UN Medals, Good Service Entries, Cash Awards and Appreciation Letters. The minutes of the meeting also indicate that the entire service record has been independently assessed.
25. Also, even if assuming that there was blatant injustice done to the two applicants by the Screening Committee in its meeting, the IPS (Appointment -37- by Promotion) Regulations at Regulations 6 and 6-A require that the list prepared in accordance with Regulation 5 has to be forwarded to the Commission by the State Government along with records of all members of the State Police Service Officers that are included in the list, the records of all members of the State Civil Service who are proposed to be superseded by the recommendations made in the list. There is also a requirement for the observations of the State Government on the recommendations of the Committee to be included. The State Government has also to forward a list along with a copy of the proceedings of the Selection Committee to the Ministry of Home Affairs simultaneously with the details of the vacancies. The Central Government will also send its observations on the recommendations of the Committee to the Commission. The Select List is then prepared by the Commission after considering the list prepared by the Committee along with all the documents received by the State Government, the observations of the Central Government and, unless it considers any change necessary, approve the list under Regulation 7. Thus, it is not that the Commission has to blindly approve the list made by the Selection Committee. The State Government is given another chance to comment on the list made by the Selection Committee under the Regulations 6 and 7. In both these cases it does not appear that the State Government, which is the controlling authority of the applicants, had any other contrary opinion on the findings or list prepared by the Selection Committee for the years 2016, 2017 and 2018 or that they disagreed with the same. The State Government is in the best position to know about the meritorious service done, actual reputation of the officer concerned, as well as to decide whether any -38- injustice was committed by the Selection Committee in scrutinizing their records and coming to a decision about the assessment. Thus, in the absence of contrary views, clearly the State Government has agreed with the decision of the Selection Committee.
26. Given the facts as brought out above along with the Hon'ble Apex Court's decisions circumscribing/limiting the powers of the Courts in entering into or sitting on judgment over the findings of the Selection Committee, except in specific cases of malafide/bias or wrongdoing, we cannot arrive at any conclusion contrary to the respondents' position. The procedures have been clearly followed in the Selection Committee Meetings for the concerned years and there has been no apparent bias or irregularity established. Further it is not for this Tribunal to go through all the individual service records of each of the respondents and find whether in comparison, the applicant in each of the O.As is better or more brilliant. In any case this cannot be done as per the directions of the Hon'ble Apex Court.
27. In addition to the Cases referred to earlier, learned counsel for the respondent, UPSC, has also brought to our notice the findings of the Hon'ble Apex Court in R.S.Dass vs. Union of India & Ors. etc, 1986 (Supp.) SCC 617, where in Para 28, it has been recorded that, "the machinery designed for preparation of Select List under the regulations for promotion to All India Service, ensures objective and impartial selection. The Selection Commitee is constituted by high ranking responsible officers presided over by Chairman or a Member of the Union Public Service -39- Commission. There is no reason to hold that they would not act in fair and impartial manner in making selection. The recommendations of the Selection Committee are scrutinised by the State Govt. and if it finds any discrimination in the selection it has power to refer the matter to the Commission with its recommendations. The Commission is under a legal obligation to consider the views expressed by the State Govt. along with the records of officers, before approving the Select List. The Selection Committee and the Commission both include persons having requisite knowledge, experience and expertise to assess the service records and ability to adjudge the suitability of officers. In this view we find no good reasons to hold that in the absence of reasons the selection would be made arbitrarily. Where power is vested in high authority there is a presumption that the same would be exercised in a reasonable manner and if the selection is made on extraneous considerations, in arbitrary manner the courts have ample power to strike down the same and that is an adequate safeguard against the arbitrary exercise of power." (Emphasis Supplied)
28. It is clear, from the above, that no reasons have to be specified by the Selection Committee for arriving at their conclusions, unlike what is being pressed by the applicant in O.A.No.180/528/2020. Further, in Union Public Service Commission vs. L.P.Tiwari & Ors. (2006) 12 SCC 317 it has been held in Paras 12 and 13 as follows :
"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. -40- Such view was reiterated as late as in 2005 in the case of U.P.S.C. vs. K. Rajaiah & Ors., reported in (2005) 10 SCC 15, wherein the aforesaid Rules for the purpose of promotion to the I.P.S. Cadre was 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..........
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."
29. The above decision reiterates the position that the Tribunals have almost no leeway in over-ruling or cross examining the findings of the Selection Committee or that because of lack of reasons being given, the selections are made arbitrarily. It is to be presumed that the Selection Committee has acted in a fair and impartial manner particularly in the absence of any contrary views from the State Government indicating that it has disagreed with the recommendations of the Selection Committee. -41-
30. Thus, for all the above reasons, we are unable to agree with the applicants in both the O.As and interfere with the Select List 2017 as well as Select List 2018 finalised by the Union Public Service Commission and the subsequent appointment by promotion to the IPS from the State Police Service issued by the Government of India for the vacancies in the Kerala Cadre for the years 2017 and 2018. The O.As are accordingly dismissed. No order as to costs.
(Dated this the 25th day of November 2021)
K.V. EAPEN P. MADHAVAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00528/2020
1. Annexure A1 - Copy of the minutes of the meeting of the Selection Committee dated 04.07.2018.
2. Annexure A2 - Copy of the review petition dated 08.11.2018.
3. Annexure A3 - Copy of the reply dated 07.12.2018 issued by the 5 th respondent.
4. Annexure A4 - Printout of the applicant's request sent by email to the rd 3 respondent on 27.08.2020.
5. Annexure A5 - Copy of the request dated 27.08.2020 sent by the applicant to the 3rd respondent by registered post.
6. Annexure A6 - Copy of the notification dated 30.09.2020 issued by st the 1 respondent.
7. Annexure A7 - Copy of the notification dated 30.09.2020 issued by st the 1 respondent.
List of Annexures in O.A.No.180/00444/2021
1. Annexure A1 - Copy of the "Matrix of the Selection Committee Meeting held on 24.06.2021 for preparation of the Select List of 2018 for promotion to IPS of Kerala Cadre" received from the 2 nd respondent as per Letter F.No.12/9/2021-AIS dated 27.08.2021.
2. Annexure A2 - Copy of the "Matrix of the Selection Committee Meeting held on 07.08.2020 for preparation of the Select List of 2017 for promotion to IPS of Kerala Cadre" received from the 2 nd respondent as per Letter F.No.12/9/2020-AIS dated 06.10.2020.
3. Annexure A3 - Copy of the ACR of the applicant for the period from 02.01.2014 to 30.06.2014.
4. Annexure A4 - Copy of the ACR of the applicant for the period from 01.07.2014 to 31.12.2014.
5. Annexure A5 - Copy of the G.O.(Rt.) No.1944/2020/HOME dated 08.09.2020.
6. Annexure A5A - True copy of Letter No.AIS-C3/283/2020-GAD dated 20.10.2020 from the 1st respondent to the 2nd respondent.
7. Annexure A6 - True copy of UPSC Guidelines for preparation of a list of suitable officeers by the Selection Committee for promotion to the Indian Administrative Service/Indian Police Service etc., (F.No.4/3/2005- AIS) -43-
8. Annexure A7 - True copy of the representation dated 03.08.2021 submitted by the applicant to the 2nd respondent.
9. Annexure A7A - True copy of the Letter F.No.12/9/2021-AIS dated 27.08.2021 issued by the 2nd respondent and addressed to the applicant.
10. Annexure A8 - True copy of the Minutes of the meeting of the Selection Committee that met on 24.06.2021 to select the officers eligible for appointment by promotion to the Kerala Cadre of the Indian Police Service for the vacancies of the year 2018.
11. Annexure A9 - True copy of the Minutes of the meeting of the Selection Committee that met on 07.08.2020 to select the officers eligible for appointment by promotion to the Kerala Cadre of the Indian Police Servie for the vacancies of the year 2017 received as per AIS-C3/194/2021- GAD dated 23.07.2021 of the 1st respondent.
12. Annexure A10 - True copy of the G.O.(Rt) No.2328/2020/HOME dated 13.10.2020.
13. Annexure A11 - True copy of the IPS (Appointment by Promotion) Regulations, 1955.
14. Annexure R2(a) - True copy of the Order dated 08.09.2020 of upgradation of his ACR.
15. Annexure R2(b) - True copy of the Order dated 13.10.2020 of upgradation of his ACR.
16. Annexure R1(a) - True copy of the Select List 2018 (Notification No.I-14011/20/2021-IPS.I(E)(II) dated 30.09.2021)
17. Annexure R1(b) - True copy of the Appointment Notification No.I- 14011/20/2021-IPS.I(E)(II) dated 30.09.2021.
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