Union Public Service Commission v. M. Sathiya Priya and Others
MOHAN M. SHANTANAGOUDAR, J. 1. This appeal is
directed by the Union Public Service Commission (fo r short,
‘UPSC’)against the judgment and order dated 24.06.2013, passed by
the High Court of Judicature at Madras in Writ Petition No. 1536 7 of
2010, whereby the High Court has dismissed the aforesaid writ petition
filed by the UPSC and confirmed the order of the Central Administrative
Tribunal, Chennai Bench, Chennai (for short, ‘CAT’), dated 07.04.2010
directing the official respondents to consider the name of the first
respondent herein for appointment to the IPS by taking into account the
service records for the period from 1.4.2003 to 31.3.2008, and appoint
her to the IPS by notionally treating such appointment with effect from
UNION PUBLIC SERVICE COMMISSION v. M. SATHIYA
PRIYA AND OTHERS
the date of notification, i.e., 5.5.2009, and also by giving a ppropriate
place of seniority to the first respondent amongst the private respondents.
2. Brief facts leading to this appeal are:
The first respondent (contesting respondent) was appointed as
Deputy Superintendent of Police in the State of Tamil Nadu; she joined
for duties on 26.05.1997; she was promoted as Superintendent of Police
on 10.06.2006 and has worked at different places on the said post . In
the seniority list of State Police Service (for short ‘SPS’) Of ficers, the
first respondent, at the given point of time, stood at serial No.11. Since
the fourth person in the seniority list was over-aged, the first respondent
was effectively considered at serial No.10 in the seniority li st for the
purpose of this case. For the year 2008, there were ten vacanc ies for
SPS to the Indian Police Service (for short, ‘IPS’), which is an All India
Service. The appointment by promotion to the IPS is governed by the
IPS (Appointment by Promotion) Regulations, 1955 (hereinafter referred
to as the ‘Regulations’). The zone of consideration is three t imes the
number of vacancies and, therefore, at least thirty names ought to be
considered for appointment to the IPS. The names of the f irst thirty
officers in the SPS including the name of the first res pondent, were
placed before the Selection Committee for consideration for appointment
to the IPS for the year 2008. The name of the first respondent was
considered at serial No. 9 in the zone of consideration. On an o ral
assessment of her service records, the Selection Committee graded the
first respondent as “Good”. On the basis of this grading, she coul d not
be included in the select list of 2008 due to the statutory limit of its size
and the availability of officers with higher grading for inclusion i n the
select list. Though, at an earlier point of time, it was found that disciplinary
proceedings were pending against Srimati V . Jayashree (respondent no.6
herein), subsequently on being cleared by the disciplinary authority, the
Government of India issued a notification appointing Srimati V . Jayashree
also to the IPS. Thus, all the ten vacancies were filled by the Government
of India including that of respondent no.6 herein.
3. Aggrieved by the non-inclusion of her name in the select list of
2008, the first respondent filed Original Application No. 441 of 2009
before the CAT, inter alia contending that on valid assess ment of her
service records, the Selection Committee ought to have grade d her as
“Outstanding” or at least “Very Good”, and in that event she would have
707
been selected for appointment to the IPS. She also contended tha t her
service records are better than those of almost all the private respondents
and that the Selection Committee had acted in an arbitrar y manner in
making the selection by superseding her for appointment to the IPS.
4. The CAT allowed the Original Application No. 441 of 2009
filed by the first respondent herein by its judgment dated 07.04.2010.
The judgment of the CAT is confirmed by the High Court of Judicature
at Madras in Writ Petition No. 15367 of 2010, vide impugned judgment
and order dated 24.06.2013. The judgments of the CAT and the High
Court are called in question in this appeal by the UPSC.
5. There cannot be any dispute that the UPSC discharges the
functions and duties assigned to it under Article 320 of the Constitution.
By virtue of the provisions in the All India Services Act, 1951, separate
recruitment rules have been framed for the IAS/IPS/IFS. In pursuance
of Sub-rule (1) of Rule 9 of the IPS (Recruitment) Rules, 1954, the IPS
(Appointment by Promotion) Regulations, 1955 have been framed. The
method of appointment is provided in Regulation 5, which reads thus:
“5. PREPARATION OF A LIST OF SUITABLE OFFICERS:-
5(1) Each Committee shall ordinarily meet every year and prepare
a list of such members of the State Police Service as are held by
them to be suitable for promotion to the Service. The number of
members of the State Police Service to be included in the list shall
be determined by the Central Government in consultation with
the State government concerned, and shall not exceed the number
of substantive vacancies as on the first day of January of the year
in which the meeting is held, in the posts available for them under
rule 9 of the Recruitment Rules. The date and venue of the meeting
of the Committee to make the selection shall be determine d by
the Commission;
Provided that no meeting of the Committee shall be held, and
no list for the year in question shall be prepared when;
a. there are no substantive vacancies as on the first day of
January of the year in the posts available for the members
of the state Police Service under rule 9 of the recruitment
rules; or
UNION PUBLIC SERVICE COMMISSION v. M. SATHIYA
PRIYA AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]
b. the Central Government in consultation with the State
Government decides that no recruitment shall be made
during the year to the substantive vacancies as on the
first day of January of the year in the posts available for
the members of the State Police Service under rule 9 of
the Recruitment Rules;
Provided further that where no meeting of the Committee could
be held during a year for any reason other than that provided
for in the first proviso as and when the Committee meets again,
the Select List shall be prepared separately for each year during
which the Committee could not meet as on the 31 st December
of each year.
EXPLANATION:- In case of Joint Cadres, a separate select
list shall be prepared in respect of each State Police Serv ice.
5(2) The Committee shall consider for inclusion to the said list,
the cases of members of the State Police Services in the order of
seniority in that service of a number which is equal to three times
the number referred in sub-regulation (1).
Provided that such restriction shall not apply in respect of a
State where the total number of eligible officers is le ss than
three times the maximum permissible size of the Select List
and in such a case the Committee shall consider all the eligible
officers;
Provided further that in computing the number for inclusion in
the field of consideration, the number of officers referred to in
sub-regulation (3) shall be excluded;
Provided also that the Committee shall not consider the case
of a member of the State Police Service unless on the first day
of January of the year for which the Select List is prepared he
is substantive in the State Police Service and has complet ed
not less than eight years of continuous service (wheth er
officiating or substantive) in the post of Deputy Superintendent
of Police or in any other post or posts declared equivalent
thereto by the State Government.
709
Provided also that in respect of any released Emergen cy
Commissioned or Short Service Commissioned officers
appointed to the State Police Service, eight years of continuous
service as required under the preceding proviso shall be counted
from the deemed date of their appointment to that service,
subject to the condition that such officers shall be eligible for
consideration if they have completed not less than four years
of actual continuous service, on the 1 st day of January of the
year for which the Select List is prepared, in the post of Deputy
Superintendent of Police or in any other post or posts declared
equivalent thereto by the State Government.
EXPLANATION: The powers of the State Government under
the third proviso to the sub-regulation shall be exercise d in
relation to the members of the State Police Service of constituent
State, by the Government of that State.
5(2)(A) Deleted.
5(3) The Committee shall not consider the cases of the members
of the State Police Service who have attained the age of 54 years
on the first day of January of the year for which the Select List is
prepared:
Provided that a member of the State Police Service whose
name appears in the Select List prepared for the earlier year
before the date of the meeting of the Committee and who has
not been appointed to the service only because he was included
provisionally in that Select List shall be considered for inclusion
in the fresh list to be prepared by the Committee, ev en if he
has in the meanwhile, attained the age of fifty four years.
Provided further that a member of the State Police Service
who has attained the age of fifty four years on the first day of
January of the year for which the Select List is prepared shall
be considered by the Committee, if he was eligible for
consideration on the first day of “January of the year or any of
the years immediately preceding the year in which such meeting
is held but could not be considered as no meeting of t he
Committee was held during such preceding year or years under
item (b) of the proviso to sub-regulation(1)”.
UNION PUBLIC SERVICE COMMISSION v. M. SATHIYA
PRIYA AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]
5(3)(A) The Committee shall not consider the case o f such
member of the State Police Service who had been included in an
earlier select list and :
a) had expressed his unwillingness for appointment to the
service under regulation 9;
Provided that he shall be considered for inclusion in the Select
List, if before the commencement of the year, he applies in
writing, to the State Government expressing his unwillingness
to be considered for appointment to the service;
b) was not appointed to the service by the Central
Government under regulation 9 (a).
5(4) The Selection Committee shall classify the eligible officers
as “Outstanding”, “Very Good”, “Good” and “unfit” as the case
may be on an overall relative assessment of their service records.
5(5) The List shall be prepared by including the required number
of names first from amongst the officers finally classif ied as
“Outstanding” then from amongst those similarly classified as “Very
Good” and thereafter from amongst those similarly classified as
“Good” and the order of names inter-se within each category
shall be in the order of their seniority in the State Police Service.
Provided that the name of an officer so included in the list shall
be treated as provisional if the State Government withholds
the integrity certificate in respect of such an officer or any
proceedings, departmental or criminal are pending against him
or anything adverse against him which renders him unsuitable
for appointment to the service has come to the notice of the
State Government.
Provided further that while preparing year wise select lists for
more than one year pursuant to the 2 nd proviso to sub regulation
(1), the officer included provisionally in any of the Select List
so prepared shall be considered for inclusion in the Select List
of subsequent year in addition to the normal consideration zone
and in case he is found fit for inclusion in the suitability list for
that year on a provisional basis such inclusion shall be in addition
to the normal size of the select list determined by the Central
Government for such year.
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EXPLANATION I: The proceedings shall be treated as pending
only if a charge-sheet has actually been issued to the o fficer
or filed in a Court as the case may be.
EXPLANATION II: The adverse thing which came to the
notice of the State Government rendering him unsuitable for
appointment to the service shall be treated as having come to
the notice of the State only if the details of the same have been
communicated to the Central Government and the Central
Government is satisfied that the details furnished by the State
Government have a bearing on the suitability of the officer and
investigation thereof is essential.
5 (6) Omitted.
5 (7) Deleted.”
6. Ms. Binu Tamta, learned counsel representing the appellant
herein, while taking us to the material on record, submits that the CAT,
as well as the High Court, has fallen into error by virtually assessing the
performance of the first respondent as an appellate authorit y and that
too wrongly; they have erred in taking into consideration the Annual
Confidential Reports from 1.4.2003 to 31.03.2008; the relevant Annual
Confidential Reports to be considered for the purpose of the selection in
question were from 1.4.2002 to 31.03.2007, the Selection Committee
has rightly taken into consideration the Annual Confidential Reports of
those years only, and therefore the impugned judgments are bad in law;
the selection is to be made by the Selection Committee not only based
on Annual Confidential Reports in respect of the concerned officer but
also based on other relevant factors including the examination of service
records of the officer in comparison to the other officers in the eligibility
list/zone of consideration and on the basis of overall relative assessment.
Contrary to the afore-mentioned procedure prescribed and being
followed throughout, the CAT, as well as the High Court, has dec ided
the matter purely on the basis of the grading found in t he Annual
Confidential Reports of the first respondent, and that too of the year
01.04.2003 to 31.03.2008.
7. Per contra, Shri Venkatramani, learned senior counsel argued
in support of the judgments of the CAT as well as the High C ourt
contending that the service record of the first respondent has been mostly
UNION PUBLIC SERVICE COMMISSION v. M. SATHIYA
PRIYA AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]
“Outstanding” throughout till 31.03.2008, or even till 31.03.2007; the first
respondent ought to have been graded as “Outstanding” or at least “Very
Good”; absolutely no reasons are assigned to superse de the first
respondent by making the appointment of her juniors in prefe rence to
the first respondent; the other private respondents were graded as “Very
Good” but none of the six juniors selected had the “Outstanding” grading
in their service records, and some of them did not even have the “Very
Good” grading; the Selection Committee and the UPSC h ave not
objectively evaluated the first respondent in accor dance with the
regulations, and hence the list prepared which was impugned before the
CAT was rightly modified with a direction to appoint the first respondent
in IPS. Relying upon the judgment in the case of R.S. Dass vs. Union
of India and others 1986 (Supp) SCC 617 , he contended that
Regulation 5 examines the role of seniority in the process of selection,
and importance and primacy was given to merit. The categorisation of
meritorious candidates is done on the basis of service records including
Confidential Character Roll as mentioned by senior officers holding high
positions. He further contended that it cannot be said n ow-a-days, if
one is aware of the facts and currents of life, that simply because
categorization and judgment of the service records of officers are in the
hands of senior officers, it is a sufficient safeguard. There has been
considerable erosion in the intrinsic sense of fairness and justice in some
of the senior officers. From instances of the conduct of many, some of
the senior officers and men in high position, it cannot be said that such
thinking on the subject of erosion is not wholly unjustified. Selection on
merits confers wide discretion on the authority making the selection, and
in the absence of reasons there would be no objectivity, and the members
of the State Civil Service might receive discriminatory treatment by the
Selection Committee. On these, among other things, he prayed f or
dismissal of the appeal.
8. This Court in the case of R. S. Dass vs Union of India (supra)
has observed that in order to rule out any grievance, actual or fancied,
some objective basis for categorisation in the manner indicated should
be laid down. If such objective basis is made know n, and after
categorisation the selection of junior officers in preferenc e to senior
officers is made, the Selection Committee need not state reasons, and
the same would not be violative of the canons of justice. In order to
ward off any suspicion in the minds of the candidates, this Court suggested
713
to the government and the authorities concerned that there should be
some basis for the categorisation of the officers, and such basis should
be objective and not merely subjective evaluation, and furthermore such
basis should be formulated in the form of guidelines. Pursuant to such
observations made by this Court, the Central Govern ment framed
guidelines which have to be followed by the Selection Committee a nd
the UPSC. The relevant parts of the Guidelines, as on 12.03.2008, are
as under:
“2.1 For preparing the Select Lists, the crucial date for reckoning
the eligibility of officers is taken with respect to the fir st day of
the “year” as defined under Regulation 2(1)(l) of t he IAS
(Appointment and Promotion) Regulations, and which is presently
the calendar year. The year in which the Selection Comm ittee
actually meets {i.e. SCM year} is co-terminus with the definition
under Regulation 2(1)(l). Further, in these Guidelines, whil e
reference is made to the provisions of the IAS (Appointment by
Promotion) Regulations, the corresponding provisions of the IPS
& IFS Regulations would be applicable while preparing the I PS
& IFS Select Lists respectively.
2.2 As per the provisions of the Promotion Regulations, wher e
year-wise Select Lists are being prepared by the Sel ection
Committee, the crucial date for determining the eligibility of the
officers is taken as on 1 st January of the Select List year and the
notional due date for preparing the Select List of an earlier year is
taken as 31 st December of that Select List year for reckoning the
availability of eligible officers. For the Select List of the current
year, the availability of eligible officer is reckoned on the date of
the Selection Committee Meeting.
2.3 In accordance with Regulation 5(4) of the Promo tion
Regulations, the Selection Committee has to 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 (i.e. ACRs and the documents kept therein b y the
competent authority). For making an overall relative assessment,
the committee will not depend solely on the grading recorded by
the reporting/reviewing/accepting authority but will make its
independent assessment of the service records of the elig ible
officers as per the procedure indicated below.
UNION PUBLIC SERVICE COMMISSION v. M. SATHIYA
PRIYA AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]
3.1 The Selection Committee would go through the service records
of each of the eligible officers, with special referen ce to the
performance of the officer during the last five years, preceding
the year for which the Select List is prepared and after deliberation
will record the assessment of the Committee in the Asses sment
Sheet comprising the Assessment Matrix [Officer x Year- wise
assessment] and the column for Overall Assessment o f the
officers.
3.2 As the crucial date for preparation of the Sele ct List is
1st January of the year of the Select List, 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
calendar year-wise basis) of the year preceding the year of the
Select List are to be taken into consideration by the Se lection
Committee.
4.1 The Selection Committee will 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 c olumns
recorded by the Reporting/Reviewing Officer/ Accepting Authority
in the ACRs for different years and then finally arrive at t he
classification to be assigned to each officer. The Se lection
Committee would take into account orders regarding appreciation
for the meritorious work done by the concerned officers. Similarly
it would also keep in view orders awarding penalties or any adverse
remarks communicated to the officer, which, even afte r due
consideration of his representation, have not been completely
expunged.
4.2 The Selection Committee would not be guided merely by the
overall grading, if any, that may be recorded in the ACRs but
would make its own assessment on the basis of the entries in the
ACRs because sometimes the overall grading in an ACR may be
inconsistent with the grading under various paramet ers or
attributes. Further, if the Reviewing Authority or the Accepting
Authority, as the case may be, has differed from the assess ment
made by the reporting officer or the Reviewing Authority, as the
case may be, the remarks of the latter authority should be taken
as the final remarks for the purpose of assessment provide d it is
715
apparent from the relevant entries that the higher authority has
come to a different assessment consciously after due application
of mind. If the remarks of the Reporting Officer, Revie wing
Authority are complementary to each other and does not have
the effect of overruling the other, then the remarks should be read
together and final assessment made by the Selection Committee
as indicated in para 4.1. This is also in accordance with the DPC
guidelines of DOP&T, as contained in its OM No. 22011/5/86-
Estt.(D) dated 10.04.1989 as amended from time to time.
4.4 While finalising the Overall Assessment of the officers [para
3.1 above refers], an officer shall be graded as:
A. “Outstanding”, if in the opinion of the Selection Committee,
the service records of the officer reflect that he is of outstanding
merit possessing exceptional attributes and abilities and these
characteristics are reflected in at least four of the ACR s for
the last five years including the ACR for the last year (i.e. upto
the preceding year for which the Select List is prepa red)
provided he is graded at least “Good” in the ACR of th e
remaining year. While grading an officer as “Outstanding”,
the following indicative guidelines would be observed.
(i) Whilst the overall grading in the ACRs will have it s
relevance, however, in order to have a final view, it will
be essential to carefully peruse and assess all the
individual attributes/columns in the ACRs like, Work
Performance, Targets Achieved, Supervision, Managerial
capabilities, personality traits etc. before the Committee
decides to grade an officer as ‘Outstanding’.
(ii) Thus, there should be an in-depth analysis of the
performance of the officer before he is rated as
‘Outstanding’. There should also be consistency in the
grading given by different Committees in different years.
(iii) Considering the fact that such ‘Outstanding’ officers are
going to supersede other officers, there is a greater need
to ensure that such an officer has met the stringent norms
of being graded as ‘Outstanding’. For such purposes,
the ACRs of the concerned officer should elaborate his
UNION PUBLIC SERVICE COMMISSION v. M. SATHIYA
PRIYA AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]
significant achievements or exceptional nature of work
in the areas of law and order, disaster management,
implementation of developmental schemes etc.
(iv) Postings are not within the competence of an officer for
which he ought not to be discriminated. However, the
Committee may also like to examine the various positions
that such ‘Outstanding’ officers have occupied and the
nature of duties performed by him over the years in the
process of assessing the officer.
B. “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 la st five
ACRs (i.e. upto the preceding year for which the Select List
is prepared) provided he is graded at least “Good” in the
ACR of the remaining year.
C. “Good”, if in the opinion of the Selection Committee, the
service records reflect that the officer’s performanc e is
generally satisfactory and he is considered fit for promotion
and those characteristics are reflected in each of the ACRs
for the last five years (i.e. up to the preceding year for which
the select list is to be prepared).
D. An officer may be categorised as “Unfit” if his report s
are lacking any positive merit or whose performance is not
generally satisfactory or if there are entries in some of the
latest ACRs which adversely reflect on his suitabilit y for
promotion of if the ACRs contain orders of penalty which in
the opinion of the Selection Committee would render the
officer unsuitable for promotion.”
Paras 2.1 and 2.2 of the Guidelines are relating to the fixi ng of
crucial dates for determining the eligibility of the officers i.e. 1 st January
of the select list year. Para 2.3 declares that th e overall relative
assessment will not solely depend on the grading recor ded by the
Reporting/Reviewing/Accepting Authority, but the Selection Committee
will make its own independent assessment of the service records. Para
3.1 deals with scope of assessment. The Selection Commit tee will
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consider the performance of each of the officers, i.e., servi ce records
during the last five years, preceding the year for which the selection list
is prepared. Para 3.2 states that as the crucial date f or reckoning the
eligibility of the officers is 1 st January of the select list year, the Annual
Confidential Reports up to the year ending 31 st March of the year
preceding the year of selection list are to be taken into account. Para
4.1 prescribes the procedure for assessment. The said guideline mandates
that the Selection Committee shall go through all the relev ant records
and make its assessment after deliberating on the quality of the officer
as indicated in various columns in the Annual Confidential Reports, and
then finally arrive at the conclusion. Para 4.2 specifies that the Selection
Committee would not be guided merely by the overall grading in the
Annual Confidential Report, but would make its own assessment on the
basis of all entries in the Annual Confidential Report, because sometimes
the overall grading in an ACR may be inconsistent with the gra ding
under various parameters or attributes. This virtually mea ns that the
Selection Committee will not act as a post office but will take a decision
on due application of mind. Para 4.4 mentions the overall assessme nt/
categorisation of officers. It states that while fina lising the overall
assessment of the officers as per para 3.1, an officer shall be graded as
“Outstanding”, “Very Good”, “Good” and “Unfit”. The para states in
detail as to how such grading should be assigned, and on what basis.
9. The Regulations as well as the Guidelines are to be app lied
jointly at the time of making the selection list. In our considered opinion,
the Regulations and the Guidelines jointly prescribe adequate procedure
and they form a complete code in themselves. In accordance with the
provisions of the Regulations and Guidelines, the Selection Committee,
presided over by the Chairman/Member of the UPSC, makes a list for
the selection of SPS Officers for promotion to the IPS. As per Regulation
5(1) of the Regulations, the number of members of the SPS to be included
in the Select List of a particular recruitment year for promotion to the
IPS, is determined by the Government of India (Ministry of Home Affairs)
in consultation with the State Government concerned, keeping in mind
the number of substantive vacancies as of 1 st January of the year the
Selection Committee meets. Thereafter, the State Government forwards
a proposal to the UPSC along with the Seniority List, an Eligibility List
(up to a maximum of three times the number of vacancies) of t he SPS
Officers, Integrity Certificates, certificates regarding disciplinary/criminal
UNION PUBLIC SERVICE COMMISSION v. M. SATHIYA
PRIYA AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]
proceedings, certificates regarding communication of adverse remarks,
details of penalties imposed on the eligible officers etc. and complete
ACR dossiers of the eligible officers.
On receipt of the afore-mentioned records from the State
Government, the UPSC places such records before the Selection
Committee when the Selection Committee meets for sele ction for the
recruitment year. In accordance with the provisions of Regulation 5(4)
of the Regulations, the Selection Committee classifies the eligible SPS
Officers included in the zone of consideration as “Outstanding”, “Very
Good”, “Good” or “Unfit”, as the case may be, on an overall relative
assessment of their service records. Thereafter, the Selection Committee
prepares a list as per the provisions of Regulation 5(5) of the Regulations
by including the required number of names first from the officers finally
classified as “Outstanding”, then from amongst those similarly classified
as “Very Good” and thereafter from amongst those similarly classified
as “Good”. As per the provisions of Regulations 6 and 6A, t he State
Government and 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 the requisite records received from t he
State Government or the Central Government, the Commission will take
a final decision on the recommendations of the Selection C ommittee
with or without modifications in terms of the provisions of Regulation 7.
Appointments to the IPS are made from the select list by the Government
of India (Ministry of Home Affairs). From the afore-m entioned, it is
clear that complete procedure is prescribed for selection and appointment
to the IPS cadre from the SPS.
10. As mentioned supra , it is the contention of the first respondent
that the Selection Committee ought to have graded her as “Outstanding”
or at least “Very Good”, on an overall relative assessment of her service
records, and consequently she would have been selected for the yea r
2008. It is her further contention that on a comparative assessment of
her service records with those of the private respondents , who were
junior to her, she could not have been excluded from the selection list as
her service records are better than those of almost al l of them. Thus,
according to her, the Selection Committee has acted expre ssly in an
arbitrary manner in the said process of selection by superseding the first
respondent.
719
11. The CAT and the High Court have virtually assessed the
performance of the first respondent afresh, mainly taking into account
the service records for the period from 1.4.2003 to 31.03.2008, and have
directed the official respondents to appoint her to the IPS by notionally
treating such appointment with effect from the date of notification, i.e.,
with effect from 5.5.2009 by giving her appropriate place of se niority
amongst the private respondents.
12. In our considered opinion, the error that crept into the findings
of the Tribunal, as confirmed by the High Court, was on account of the
basic fact that they erred in not properly appreciating the span/scope of
selection by a Selection Committee. For the purpose of consideration of
a candidate for selection to the IPS in respect of the select list of 2008,
the Annual Confidential Reports from 1.4.2003 to 31.03.2008 could not
have been taken into account by the Selection Committee, as observed
by the CAT and the High Court. As per para 3.1 of the Guidelines, the
assessment of the eligible officers is with special reference to the
performance of the officer during the last five years, preceding the year
for which the select list is prepared. As the crucial date for determining
the eligibility of the officers is taken 1 st January of a particular year for
which the selections are being made, the Annual Confidential Re ports
upto the year ending 31 st March of the year preceding the year of selection
list are to be taken into account as per para3.2 of the Guidelines. In the
matter on hand, the selection list was to be prepared for the year 2008.
Thus, the crucial datefor reckoning the eligibility of the off icers in the
matter on hand is 1 st January, 2008. Accordingly, the Annual Confidential
Reports upto the year ending 31 st March, 2007 i.e., the year preceding
the year of the selection list, are to be taken into account. As mentioned
supra , the Selection Committee will consider the performance of the
officer i.e., the service records including the last five year s, preceding
the year for which the selection list is to be prepared as per para 3.1 of
the Guidelines. Accordingly, only the Annual Confidential Reports of
five years upto the year ending 31 st March, 2007 are relevant i.e. Annual
Confidential Reports from 01.04.2002 to 31.03.2007 needed to be taken
into account at the time of selection. The same was being done by the
Selection Committee in the matter on hand. Hence, no fault can be
found. It seems that the CAT, as well as the High Court, has misdirected
in coming to the wrong conclusion that Annual Confidential Reports from
1.4.2003 to 31.03.2008 ought to have been taken into consideration
inasmuch as such conclusion is against the Regulations &the Guidelines.
UNION PUBLIC SERVICE COMMISSION v. M. SATHIYA
PRIYA AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]
13. The CAT and the High Court have mainly relied on the grading
given in the Annual Confidential Reports of the officers at t he State
level while coming to their conclusion. But, in terms of the Regulations
and the Guidelines framed therein, for categorising the office rs, the
Selection Committee was required to consider the ove rall relative
assessment of the service records of each of the eligible offi cers. The
Selection Committee is not guided merely by the grading recorded in the
Annual Confidential Reports but makes its own assessment on the basis
of the quality of the officer as indicated in various columns recorded by
the Reporting/Reviewing/Accepting Authority thereunder. In other words,
the Selection Committee is not required to compulsorily ac cept the
gradings given in the Annual Confidential Reports as it would amount to
merely acting as a post office and the whole process would be nothing
but a farce. The grading recorded in the Annual Confidential Report of
a particular year may differ from the grading arrived at by the Selection
Committee in respect of the said Annual Confidential Report depending
on all relevant material.
14. Learned counsel for the UPSC, drawing the attention of the
Court to the contents of the affidavit filed by the UPSC before the CAT,
submits that the Selection Committee also reviews and determin es the
overall grading recorded in the Annual Confidential Reports to ensu re
that the overall grading in the Annual Confidential Reports is not
inconsistent with the grading/remarks under various specific parameters
or attributes. It is brought to the notice of the Court that the Se lection
Committee takes into account orders regarding appre ciation for
meritorious work done by the officers concerned and also keeps in view
orders awarding penalties or any adverse remarks duly communi cated
to the officers, which even after due consideration of their representation
by the suitable forum, are not expunged. The afore-mentioned norm s
are uniformly applied to all the States/Cadres in the matter of induction
into the All IndiaServices.
15. The Selection Committee consists of experts in the field. It is
presided over by the Chairman or a Member of the UPSC an d is duly
represented by the officers of the Central Government and the State
Government who have expertise in the matter. In our considered opinion,
when a High Level Committee or an expert body has considered the
merit of each of the candidates, assessed the grading and consi dered
their cases for promotion, it is not open to the CAT and the High Court to
721
sit over the assessment made by the Selection Committee as an appellate
authority. 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 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 m ay 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 we re
required to be considered before selecting the eligible candidates for the
IPS. The Selection Committee had in fact scrutinised the me rits and
demerits of each candidate taking into consideration the various factors
as required, and its recommendations were sent to the UPSC. It i s the
settled legal position that the Courts have to show def erence 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 ex perts. The
UNION PUBLIC SERVICE COMMISSION v. M. SATHIYA
PRIYA AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]
constraints – self-imposed, undoubtedly – of writ jurisdiction still remain.
Ignoring them would lead to confusion and uncertainty. The jurisdiction
may become rudderless.
16. No doubt, the Selection Committee may be guided by the
classification adopted by the State Government but, for good r easons,
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”,
“V ery 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 withi n the
prerogative of the Selection Committee and no reasons need be recorded,
though it is desirable that in a case of 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 wit h the State
Government’s decision. It is relevant to note that no allegations of malice
or bias are made by the first respondent at any stage of the proceedings
against the Selection Committee or the UPSC.
This Court has repeatedly observed and concluded tha t the
recommendations of the Selection Committee cannot be chal lenged
except on the ground of mala fides or serious violation of the statutory
rules. The courts cannot sit as an appellate authority or an umpire to
examine the recommendations of the Selection Committee like a Court
of Appeal. This discretion has been given to the Selection Committe e
only, and the courts rarely sits as a Court of Appeal to exa mine the
selection of a candidate; nor is it the business of the Court to exami ne
each candidate and record its opinion. Since the Selection Committe e
constituted by the UPSC is manned by experts in the field, we h ave to
trust their assessment unless it is actuated with malice or bristles with
mala fides or arbitrariness.
17. In the case of Union of India vs. A.K. Narula reported in
(2007) 11 SCC 10, this Court in similar circumstances observed thus:
723
“15. 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 o verall
assessment of the performance of each candidate separately, but
by adopting the same standards, yardsticks and norms. It is only
when the process of assessment is vitiated either on the grou nd
of bias, mala fides or arbitrariness, that the selection c alls for
interference. Where DPC has proceeded in a fair, impartial and
reasonable manner, by applying the same yardstick and norms to
all candidates and there is no arbitrariness in the pr ocess of
assessment by DPC, the court will not interfere (vide SBI v. Mohd.
Mynuddin [(1987) 4 SCC 486 : 1987 SCC (L&S) 464 : (1987) 5
ATC 59] , UPSC v. Hiranyalal Dev [(1988) 2 SCC 242 : 1988
SCC (L&S) 484 : (1988) 7 ATC 72] and Badrinath v. Govt. of
T.N. [(2000) 8 SCC 395 : 2001 SCC (L&S) 13] ). The Review
DPC reconsidered the matter and has given detailed reasons a s
to why the case of the respondent was not similar to that of R.S.
Virk. If in those circumstances, the Review DPC decided not to
change the grading of the respondent for the period 1-4-1987 to
31-3-1988 from “good” to “very good”, the overall grading of the
respondent continued to remain as “good”. There was no question
of moving him from the block of officers with the overall rating of
“good” to the block of officers with the overall rating of “v ery
good” and promoting him with reference to DPC dated
13-6-1990. In the absence of any allegation of mala fide or bia s
against DPC and in the absence of any arbitrariness in the manner
in which assessment has been made, the High Court was not
justified in directing that the benefit of upgrading be given to the
respondent, as was done in the case of R.S. Virk .”
18. In the case of M.V. Thimmaiah vs. UPSC reported in (2008)
2 SCC 119 , this Court, after considering various judgments on the subject,
observed thus:
“30. 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
UNION PUBLIC SERVICE COMMISSION v. M. SATHIYA
PRIYA AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]
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 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. In the matter on hand, we find that neither the decision nor the
decision making process was actuated with malice, and no grave mistake
was committed by the Selection Committee leading to arbitrariness. We
find that it is not a case of pick and choose, but the selecti on has been
made rationally. The applicant-respondent no.1 was duly considered by
the Selection Committee. However, on an overall assessm ent of her
service records, her name was not included in the select list due to the
statutory limit of its size and as officers with higher grading were available
for inclusion in the select list as per the provisions of Regulation 5(5) of
the Regulations.
20. So far as the case of respondent no.6 – Srimati V. Jayashr ee
is concerned, initially some disciplinary proceedings were pending against
her. Though the disciplinary proceedings were pending, the nam e of
Srimati V. Jayashree, respondent no.6 herein, on an overall re lative
assessment of her service records, was provisionally includ ed in the
select list, subject to clearance in the disciplinary proceedings. Since the
State Government had certified the integrity of the said officer, in view
of the fact that the disciplinary proceedings ended with a negative report,
her name was finally included in the select list. Such p rocedure was
adopted by the Selection Committee in accordance with the first proviso
to Regulation 5(5) of the Regulations, which reads thus:
“Provided that the name of an officer so included in the list shall
be treated as provisional if the State Government withholds the
integrity certificate in respect of such an officer or any proceedings,
departmental or criminal are pending against him or anything
adverse against him which renders him unsuitable for appointment
to the service has come to the notice of the State Governm ent.”
725
The proviso to Regulation 5(5) specifically provides for inclusion
of officers in the select list against whom departm ental/criminal
proceedings are pending, their inclusion in the selec t list remains
provisional, subject to clearance of departmental/criminal proceedings.
However, their appointments to the IPS can be made only aft er their
names are made unconditional in the select list, in accordance with the
second proviso to Regulation 7(4) of the Regulations, which reads thus:
“7(4) The Select List shall remain in force till the 31st day of
December of the year in which the meeting of the sele ction
committee was held with a view to prepare the list unde r sub-
regulation (1) of regulation 5 or upto sixty 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:
xxx xxx xxx
Provided that where the State Government has forwarded the
proposal to declare a provisionally included officer in the select
list as “Unconditional”, to the Commission during the period
when the select list was in force, the Commission shall decide
the matter within a period of forty five days or before the date
of meeting of the next Selection Committee, whichever is earlier
and if the Commission declares the inclusion of the provisionally
included officer in the Select List as unconditional and final,
the appointment of the concerned officer shall be considered
by the Central Government under regulation 9 and su ch
appointment shall not be invalid merely for the reason that it
was made after the Select List ceased to be in force .”
21. Since the name of Srimati V . Jayashree, respondent no.6 herein,
was provisionally included in the select list and was made unconditional
in the select list after her exoneration in the disciplinary proceedings, she
was appointed in the 2008 batch.
22. Having regard to the entire material on record, we do not find
any ground to agree with the reasons assigned by the CAT and the High
Court while coming to their conclusion. The High Court has strangely
made out a fresh additional point in favour of the first resp ondent by
observing that, on perusal of the records maintained by the Selection
Committee, the High Court was not able to find the grading of the officers
UNION PUBLIC SERVICE COMMISSION v. M. SATHIYA
PRIYA AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]
recorded by the State Government. In other words, the High Court was
of the view that since the records submitted before the Selection
Committee did not include the grading of the officers recorded b y the
State Government, the Selection Committee did not have an opportunity
to take into account the grading recorded by the State Government while
coming to its conclusion. We do not agree with the said observation s.
The CAT while deciding the matter has taken into account all the records
including the grading of the State Government, which means such records
were very much available at the time of consideration before the Selection
Committee, as well as at the time of decision by the CAT. In this context,
it is brought to the notice of the Court by the learned counsel representing
the UPSC that after the selection process is over, the Annual Confidential
Reports maintained by the State Government with the grading given to
the officers by the State Government were sent back to the State
Government, since those records belong to the State Governme nt; the
rest of the records remained with the UPSC. The records whi ch were
available with the UPSC were produced before the High Court. However,
the records pertaining to the grading of the officers recorded by the
State Government could have been secured by the High Court from the
State Government. Instead of securing records from the State
Government, the High Court has strangely observed that such re cords
were not available before the Selection Committee. It is but natural for
the Selection Committee to send back the records to the State Government
after the selection process is ended and appointments are made.
23. In view of the above, the judgments of the CAT dated
07.04.2010, and the High Court of Judicature at Madras dated 24.06.2013,
stand set aside.
24. Accordingly, the instant civil appeal is allowed. There shall be
no order as to costs.
Ankit Gyan Appeal allowed.