IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 27.10.2006 Coram:- The Hon'ble Mr. Justice P.SATHASIVAM and The Hon'ble Mr. Justice S.MANIKUMAR W.P. Nos.15791 to 15795 of 2006 and WPMP Nos.15547 to 15551 of 2006 P.Sivanandi, IPS, Deputy Inspector-General of Police (HQrs), Chennai 600 004 ... Petitioner in all WPs. vs. Rajeev Kumar, IPS, Superintendent of Police, Narcotic Intelligence Bureau, CID (NIB-CID), Chennai. ... R-1 in WP.15791/2006 Sandeep Rai Rathore, IPS, Superintendent of Police, Thoothukudi District, Tamil Nadu. ... R-1 in WP.15792/2006 Abhay Kumar Singh, IPS, Superintendent of Police, Crime Branch-I, CID, Chennai-600 002. ... R-1 in WP.15793/2006 K.Vanniya Perumal, IPS, Commandant, Tamil Nadu, Special Police-VII Battalion, Palani, Dindigul District. ... R-1 in WP.15794/2006 Shailesh Kumar Yadav, IPS, Passport Officer, Ghaziabad, Ministry of External Affairs, Govt. of India, Patiala House, New Delhi. ... R-1 in WP.15795/2006 The Union of India rep. by the Secretary, Ministry of Home Affairs, North Block, New Delhi. ... R-2 in all WPs. https://hcservices.ecourts.gov.in/hcservices/ Union Public Service Commission Represented by its Secretary, New Delhi. ... R-3 in all WPs. The State of Tamilnadu rep. by its Principal Secretary, Home Department, Fort St. George, Chennai 600 009. ... R-4 in all WPs. The Director General of Police, Tamil Nadu, Mylapore, Chennai-600 004. ... R-5 in all WPs. S.Avudayappan, IPS., Superintendent of Police, Special Division, SB CID, Chennai 600 004. ... R-6 in all WPs. The Central Administrative Tribunal represented by its Registrar, Madras Bench, Chennai 600 104. .. R-7 in all WPs. Petitions under Article 226 of the Constitution of India for the issuance of a writ of certiorari to call for the records relating to the common order of the Central Administrative Tribunal, Madras Bench, in OA Nos.595 to 598 and 780 of 2005, dated 05.05.2006, and quash the same. For Petitioner in WP.15791/06 : Mr.N.R.Chandran, Senior Counsel for Mr.S.Arivazhagan. For Petitioner in WP.15792/06 : Mr.Vijaynarayan, Senior Counsel for Mr.S.Arivazhagan. For Petr. in WPs.15793 to 15795/06 : Mr.L.Chandrakumar for Mr.S.Arivazhagan For R1 in WP.15791/06 : Mr.Sathyanarayanan For R1 in WPs.15792 to 15795/06 : Mr.I.Subramanian, Senior Counsel for Mr. P.N. Swaminathan For R2 in all WPs : Mr.V.T.Gopalan, Addl. Solicitor General, assisted by Mr.P.Wilson, Asst. Solicitor General and Mr. P. Kumaresan,ACGSC. For R-3 in all WPs : Mr.R.Muthukumarasamy, Senior Counsel for Mr.K.Sridahar, Senior Central Govt. Standing Counsel. For State of Tamil Nadu in all WPs : Mr.R.Viduthalai, Advocate General, assisted by Mr.K.Elango, Special Government Pleader. https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (Judgment of the Court, delivered by P.SATHASIVAM, J.) The petitioner in all these petitions challenges the common order of the Central Administrative Tribunal, Madras Bench, in O.A. Nos.595 to 598 and 780 of 2005, dated 05.05.2006, in and by which, the Select List of 1994-1995 as finalised in 1999 for selection and appointment to Indian Police Service was set aside by the Tribunal insofar as petitioner P.Sivanandi and 6th respondent S.Avudayappan are concerned. 2. The case of the petitioner, as stated in the affidavit, is briefly stated here-under. (a) By G.O.Ms.No.1119 (Home Department) dated 06.05.1985, on the basis of the Group-I Services Examinations conducted by the Tamil Nadu Public Service Commission, the petitioner was directly selected and recruited as Deputy Superintendent of Police along with 12 others as part of the 1982-83 Batch. On 27.05.1985, the entire batch joined the Police Training College, Madras. Recruitment to the post of Deputy Superintendent of Police was from two sources, one by direct recruitment and the other by promotion from the post of Inspector of Police. While the petitioner was undergoing training, 91 Inspectors of Police appointed as Deputy Superintendents of Police temporarily under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules during 1982-1983 were regularized with retrospective effect from the dates of temporary appointment and the same was done as per G.O.Ms. No.860, dated 03.10.1985. In the Seniority List issued on 01.01.1986, those 91 promotees of 1982-83 along with 1984-85 batch of promotees were placed above the direct recruits of the 1982-83 batch, who were appointed by virtue of G.O.Ms.No.1119 dated 06.05.1985. (b) The petitioner and other direct recruits made representations and, by G.O.Ms.No.931 dated 2.5.1990, an order was issued by which the direct recruits were placed above the promotees. Aggrieved by the said Order, the promotees filed applications before the Tamil Nadu Administrative Tribunal in O.A. Nos.1295 and 1332 of 1990. While the said Applications were pending, the Government of Tamil Nadu issued G.O.Ms.No.1717, dated 19.07.1990, cancelling the earlier order issued in G.O.Ms.No.931 dated 21.05.1990. The effect of the order was that the promotee officers again gained seniority over the direct recruits. Aggrieved by the order dated 19.07.1990, cancelling the earlier order in favour of the direct recruits, one Christopher Nelson filed O.A. No.2073 of 1990 before the Tamil Nadu Administrative Tribunal. One person from the 1984-85 batch of promotees also filed O.A. No.4012 of 1990. On 24.07.1991, a common order was passed by the Tamil Nadu Administrative Tribunal in O.A. Nos.1295 and 1332 of 1990, by which, the Applications filed by the promotee officers were allowed and the application filed by Christopher Nelson, the directly recruited Deputy Superintendent of Police, was dismissed. https://hcservices.ecourts.gov.in/hcservices/ (c) Aggrieved by the said Order, Christopher Nelson filed SLP Nos.17086-89 of 1991 and, by order dated 05.01.1995, the Supreme Court set aside the order of the Tribunal and directed the Tribunal to pass fresh orders in the light of the decision of the Supreme Court in Syed Khalid Rizvi and others vs. Union of India and others (1993 Supp. (3) 575). By the said order, four matters were remanded back to the Tamil Nadu Administrative Tribunal. Thereafter, the matters were taken up for final hearing and, by order dated 26.06.1995, the applications filed by the promotee officers were dismissed and the one filed by the direct recruits was allowed, thereby, G.O.Ms.No.931, Home Department, dated 2.5.1990, was restored and the direct recruits were placed above the promotees. (d) While the above Original Applications were pending after remand and after the interim order was passed by the Tamil Nadu Administrative Tribunal, on 02.02.1995, in violation of the interim order, the Select Committee for making selections to the Indian Police Officers met on 07.03.1995 and prepared a select list consisting of 11 officers of the State Civil Services. The said list was totally illegal since it was admittedly in violation of the interim order passed by the Tamil Nadu Administrative Tribunal. Subsequently, UPSC (Union Public Service Commission) approved the said List on 28.04.1995. On that basis, the persons at Serial No.1 to 8 were recommended for appointment subject to the result of O.A. No.1273 of 1990. In the meanwhile, on 26.06.1995, O.A. No.1273 of 1990 was allowed and O.A. Nos.1295, 1332 and 4012 of 1990 were dismissed and consequently, the Select List itself had to be revised since the seniority in the feeder cadre had been altered. Aggrieved by the same, the State Government filed a Review Application before the Tamil Nadu Administrative Tribunal and the same was dismissed on 19.01.1996. Two promotee officers filed SLPs before the Supreme Court and the same were dismissed on 11.09.1995. (e) In the meanwhile, on 26.09.1995, the petitioner, who was considered for appointment to the Indian Police Service but not included in the select list, approached the Central Administrative Tribunal by filing O.A. No.1154 of 1995. In view of the dismissal of the SLP as well as rejection of the Review Applications, on 19.5.1997, the Government of India issued a Notification, modifying the Select List by re-arranging the officers in accordance with the revised seniority as published by the State Government in accordance with the judgment of the Tamil Nadu Administrative Tribunal. A number of applications had been filed, challenging the original Select List, before the Central Administrative Tribunal including O.A. No.1154 of 1995 filed by the petitioner and those applications came to be allowed by the Central Administrative Tribunal on 22.08.1997. (f) As a result of these proceedings, the entire original selection was vitiated and the respondents had been asked to undertake the entire exercise afresh. Aggrieved by the said Order, Christopher Nelson filed W.P. Nos.14142 to 14148 of 1997 and one S.S.Krishnamoorthy filed W.P. Nos.16712 to 16714 of 1997. Those Petitions came to be disposed of by a Division Bench on 07.11.1997, upholding the judgment of the Central Administrative Tribunal. https://hcservices.ecourts.gov.in/hcservices/ (g) In the meanwhile, Christopher Nelson withdrew W.P. Nos.14142 to 14148 of 1997 with liberty to prefer appeals before the Supreme Court and thereafter, he filed SLP Nos.22795-801 of 1997 against the judgment of the Central Administrative Tribunal dated 22.08.1997. Though the Hon'ble Supreme Court granted interim orders, however, clarified to the effect that the interim order will not prevent the State from holding the DPC (Departmental Promotion Committee). In view of the order of the Central Administrative Tribunal, dated 22.08.1997, and the order of the Hon'ble Supreme Court, a fresh Select Committee Meeting was held on 23.03.1999 to prepare and review the Select List of 1994-95 and the said Select Committee recommended 11 names. The said List prepared by the Select Committee was forwarded to the UPSC and the same was approved by it on 14.07.1999 subject to the final outcome of the batch of cases pending before the Supreme Court. Thereafter, the Supreme Court on 20.02.2002 delivered its final Judgement, declining to interfere with the impugned order and dismissed all the Appeals. In view of the final order, the recommendations of the Select Committee approved by the UPSC on 14.07.1999 had to be notified and accordingly, on 30.01.2004, a fresh notification was issued appointing 10 officers to the Indian Police Service. The petitioner was at Serial No.3 in the said list and therefore, was appointed to the Indian Police Service from 03.11.1995. The petitioner was therefore deemed to be in the original Select List which was prepared on 07.03.1995. (h) Aggrieved by the fresh selection process, the first respondent and others filed O.A. Nos.1106 to 1109 of 2004 and the same were disposed of by order dated 11.4.2005, directing the Government of India to consider the representation made by the first respondent and others and pass appropriate orders. On the basis of those representations, orders were passed by the Government of India on 09.06.2005 and it is to challenge the said order as well as the orders dated 30.1.2004 and 26.3.2004, fresh applications were filed. The petitioner filed a counter bringing all the facts and circumstances of the case to the notice of the Tribunal and also took a stand that the 1st respondent and others, who have filed the applications, did not have locus standi since they were direct recruits and were appointed to the service from a different stream. They do not have the right to challenge the selection of State Police Officers. (i) By Order dated 05.05.2006, the applications were allowed only on the ground that the ACR (Annual Confidential Report), which was written after 31.03.1994, would not be valid in the eye of law as it was written later though it related to the said period and therefore, consideration of such ACR for the relevant period, since it was written later, would be illegal and the selection was vitiated. The Tribunal found from the File that for the period from 01.04.1993 to 15.07.1993, the report was written on 14.11.1994 and the same was reviewed on 19.01.1996 and accepted on 27.01.1996. Hence, the report was not written in accordance with the instructions, which laid down a time frame for writing of the ACRs and therefore such a report ought not to have been taken into consideration and consequently, the selection was vitiated. It also took the view that https://hcservices.ecourts.gov.in/hcservices/ this additional ACR had the effect of changing the over-all grading of the petitioner and hence, the said report ought not to have been taken into consideration. In the said Order, the Tribunal, after quashing the Select List of 1994-95 as finalised in 1999, directed respondents-1, 2 & 3 therein to re-do the Select List for 1994-95 strictly by considering only the records that ought to have been considered instead of any record that might have been written far later than the relevant cut off date, viz., 31.03.1994. Aggrieved by the said order, having no other efficacious alternative remedy, the petitioner has filed the above Writ Petitions for the issuance of a writ of certiorari. 3. Heard Mr.N.R.Chandran, Mr.Vijaynarayan, learned Senior Counsels and Mr.L.Chandrakumar, learned counsel for the petitioner; Mr.I.Subramanian, learned Senior Counsel for R-1 in WPs.15792 to 15795 of 2006; Mr.V.T.Gopalan, learned Additional Solicitor General for Government of India; Mr.R.Muthukumaraswamy, learned Senior Counsel for the Union Public Service Commission; Mr.R.Viduthalai, learned Advocate General for State of Tamil Nadu; and Mr.Sathyanarayanan, learned counsel for R-1 in WP.15791 of 2006. 4. Mr.N.R.Chandran and Mr.Vijaynarayan, learned Senior Counsels appearing for the petitioner, assailing the Order of the Tribunal, contended that the finding of the Tribunal, viz., assessment beyond 3 to 6 months' period should not be countenanced, is not supported by any legal principle or statutory Rule or Order. According to them, ACR being vital document for advancement in the service career of a Government Servant and the same being written by the superior officers, viz., reporting officer, reviewing officer and accepting officer; and in view of the fact that the Government servant has no role in the matter of writing of the ACR; to hold that belated ACR should not be taken into account to consider the claim of the Government servant would violate his fundamental right guaranteed under Article 16 of the Constitution of India. In other words, according to them, because of the delay on the part of the higher officials, the service career of a Government servant should not be let affected. Both the counsels further contended that, having supported their own orders before the Tribunal, the present stand of the Government of India and the State Government that the Tribunal's order was right and a belated ACR ought not to have been taken into account is not tenable. According to them, inasmuch as the Tribunal directed the authorities to go through the entire process of preparation of panel for the year 1994-1995 afresh, which was confirmed by the Supreme Court, it necessarily follows that the Supreme Court approved all the findings and directions of the Tribunal and, therefore, the proceedings for preparation of 1994-95 panel should be done de novo without any limitation. They further submitted that the principles of res judicata and constructive res judicata would not apply to the cases on hand. Inasmuch as the directly recruited DSPs and IPS Officers are recruited under different streams of Rules against different vacancies, both are mutually independent and appointment of one stream cannot prejudice others. According to them, the applicants in the Original Application/R-1 in these Writ Petitions have no locus standi to challenge the notification dated 30.01.2004 as they were not qualified to https://hcservices.ecourts.gov.in/hcservices/ be included in the panel as promotees and they came to be appointed to the service through a different stream. With regard to the ACR for the period between 01.04.1993 and 15.07.1993, as per the information furnished by the UPSC, the same had not changed the grading from 'good' to 'very good' but it is the ACR for the period 1992-1993 that had changed the grading from 'good' to 'very good', and, as a result of the overall assessment, the petitioner has been correctly included in the 1994-95 Select List, hence, the entire order of the Central Administrative Tribunal becomes erroneous and is liable to be set aside. They also contended that a person in compulsory wait is deemed to be on duty and, in this case, the petitioner was assisting his senior officers. Inasmuch as the period of compulsory wait was regularised as duty vide G.O.Rt.No.2994 Home (Police-II) Department, dated 14.10.1973, the Tribunal ought not to have rejected the assessment of ACR for the said period. Finally, it is contended that the re-evaluation of the committees' findings by the Court is not permissible unless they are made contrary to the Rules or where an allegation of mala fides and bias against the committee members is alleged. 5. Mr.R.Muthukumarasamy, learned Senior Counsel for the Union Public Service Commission, by placing the original records, ie., materials placed before the Select Committee and the decision taken by them, contended that the reasoning and conclusion of the Tribunal that the Union Public Service Commission decided on the basis of impermissible documents to improve the grading given to the petitioner are baseless and contrary to the facts on record. He demonstrated that, when the ACR for the said period, viz., 01.04.1993 to 15.07.1993, was made available before the Select Committee held on 24.3.1999, the Committee did not change the grading for the year 1993-94. The finding of the Tribunal to the contra as found recorded in para No.21 cannot be sustained. In such circumstances, according to him, the question as to the validity of the ACR for the period from 01.04.1993 to 15.07.1993 and as to whether it could be lawfully taken into account is wholly irrelevant. From the records, he pointed out that the change in the grading given by the Select Committee to the petitioner for the year 1992-93 as 'very good' as against the grading 'good' given by the Committee in the Meeting held on 07.03.1995 was on account of the fact that the missing ACR for a part of the year 1992-93 had been made available in 1999. In other words, according to him, the change in the overall grading in so far as the petitioner in the Meeting held on 24.3.1999 was on account of the change in the grading for the year 1992-93 and not 1993-94. He finally submitted that the UPSC is entitled to put forth the decision of the Select Committee through their counsel and their action is in accordance with law. Further, it is open to the UPSC, who has been impleaded in the Petition, to submit its views and bring it to the notice of the Court the correct facts on the position of law. 6. Mr.I.Subramanian, learned Senior Counsel appearing for R-1 in the W.Ps., by drawing our attention to various factual details, supported the order passed by the Tribunal. He submitted that, in the case on hand, ACRs were written belatedly, hence, the authenticity of those documents is https://hcservices.ecourts.gov.in/hcservices/ very much doubtful, which has resulted in prejudice to R-1 in the Writ Petitions. Accordingly, he prayed for confirmation of the order of the Tribunal and dismissal of the Writ Petitions. 7. Mr.V.T.Gopalan, learned Additional Solicitor General, contended that materials/reports, which were written far later than the relevant cut off date viz., 31.3.1994, were taken into consideration to make the Select List for the year 1994-1995, hence, the same were rightly directed to be eschewed by the Tribunal. He further contended that the documents, which have come into existence subsequent to the said cut off date, cannot be taken into account as otherwise the cut off date loses its sanctity and persons competing to be promoted could keep on claiming additional qualifications by the passage of time. He further contended that non-availability of the ACR for the limited period from 01.04.1993 to 15.07.1993 was not an issue before the Tribunal at all in the earlier occasion and that, in view of the order passed by the Supreme Court, the principle of constructive res judicata is applicable to the cases on hand. He further contended that during the said period, the Officer was not assigned with any duty and he was to remain in headquarters and not to leave without prior permission. It is not clear as to how he was assessed as 'very good' or 'outstanding' for the said period. According to him, inasmuch as the UPSC has not filed a Writ Petition, challenging the order of the Tribunal, it is not open for them to attack the findings and the ultimate decision of the Tribunal. 8. According to Mr.R.Viduthalai, learned Advocate General, as per G.O.Ms.No.11 P & AR (PER-R) Department, dated 05.11.1984, and subsequent Government Order in G.O.Ms. No.373 P & AR (PER-R) Department, dated 20.10.1993, prescribing the time limit with regard to writing of ACRs, which are mandatory in nature; the ACR for the period from 01.04.1993 to 15.07.1993, which was written only on 14.11.1994, reviewed on 19.01.1996 and accepted on 27.01.1996, cannot be accepted since it goes contrary to various Government Orders/instructions issued by the Government. He also commented that the petitioner was on 'compulsory wait' during the period between 01.04.1993 and 15.07.1993, for which period he was rated 'outstanding', and this fact raises serious doubt about the authenticity of the ACR. He also placed the original files relating to the petitioner. 9. We have verified all the relevant materials and considered the rival contentions projected on either side. 10. Before proceeding further, it is relevant to deal with the argument of the learned Additional Solicitor General on the finding of the Tribunal that the Select Committee Meeting held on 24.03.1999 was a fresh Select Committee Meeting and not a Review Selection Committee Meeting. He submitted that the doctrine of merger will apply, therefore, inasmuch the orders of the Tribunal and the High Court now merged in the order of the Supreme Court, it is only the finding of the Supreme Court that would apply, consequently, it cannot be said that the Select Committee which met https://hcservices.ecourts.gov.in/hcservices/ on 24.03.1999 was a fresh Select Committee. He argued that the principle of constructive res judicata will apply and inasmuch as the contentions now raised by the petitioner were not taken in the earlier round of cases, he should not be allowed to advance arguments thereon. 11. In the light of the submissions relating to merger and res judicata, we verified the relevant materials, earlier proceedings and the orders passed therein. The doctrine of merger would have no application to the facts and circumstances of the case inasmuch as the Tribunal in the earlier round, the High Court as well as the Supreme Court have all rendered a finding that the earlier proceedings of the Select Committee held on 07.03.1995 were invalid inasmuch as the proceedings were conducted in violation of the interim order of a competent Tribunal. For these reasons, direction was issued for constituting a fresh Select Committee and to redo/undertake the entire process afresh. As rightly pointed out, inasmuch as the Tribunal, the High Court and the Apex Court gave the same reasoning, the doctrine of merger would have no application to the facts and circumstances of the case. Even otherwise, as pointed out, the final conclusions of the Tribunal in the earlier round of litigation were approved by the Supreme Court, hence, the reasoning and conclusions of the Tribunal have full effect. The Tribunal directed the authorities to go through the entire process of preparation of panel for the year 1994-1995 afresh. The Supreme Court confirmed the entire order of the Tribunal and dismissed the Special Leave Petition. The direction that any party aggrieved by the selection is at liberty to approach the appropriate forum makes it clear that the order of the Tribunal was confirmed without any reservation. Even the Union of India had understood the said order in its correct perspective and accepted the recommendation of the Select Committee, and acting thereupon, issued Notification on 30.01.2004 and also rejected the representation of the first respondent by its order dated 09.06.2005. Inasmuch as the Appeals were dismissed, confirming the order of the Tribunal, it necessarily follows that the Supreme Court approved all the findings and the directions of the Tribunal and therefore, the proceedings for preparation of panel of 1994-1995 should be done de novo without any limitation. 12. Learned Additional Solicitor General orally took an objection that the present Writ Petitions are barred by principles of constructive res judicata. In the decision reported in AIR 1976 SC 1569 (Syed Mohd. S.Labbai vs. Mohd. Hanifa), the Hon'ble Supreme Court laid down four ingredients/conditions for maintaining the plea of res judicata before such plea can be given effect to, they are: (i)