IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.4.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MS.JUSTICE K.SUGUNA Writ Petition No.33696 of 2007 Jawahar Santhakumar ... Petitioner Vs. 1.Union of India, represented by Secretary to Government, Ministry of Home Affairs, New Delhi. 2.Union Public Service Commission, represented by Secretary to the Commission, Dholpur House, Shajahan Road, New Delhi. 3.Government of Tamilnadu, represented by Chief Secretary to the Government, Public Department, Fort St.George, Chennai-600009. 4.N.Mathivanan, Collector, Collectorate, Salem District, Salem. 5.R.Vasuki, Collector, Collectorate, Dindugul District, Dindugul. 6.Central Administrative Tribunal, represented by its Registrar, Chennai Bench, High Court compound, Chennai-600101. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to order in OA.No.749 of 2006, dated 31.8.2007 and RA.No.27 of 2007, dated 3.10.2007 passed by the sixths respondent Tribunal and quash the same by allowing the said OA and directing the respondents 1 to 3 to convene Selection Committee for reviewing promotions made to the IAS for the vacancies of the year 2004 and considering the petitioner for promotion thereto with all consequential benefits. For petitioner : Mr.Vijayanarayan, Senior Counsel for Mr.P.V.S.Giridhar Associates For R.2 : Mr.K.Sridhar For R.3 : Mr.Dhandapani, Spl.G.P. For R.1, R.4 & R5 : No appearance O R D E R ELIPE DHARMA RAO, J. The petitioner was directly recruited as the Deputy Collector by the Tamil Nadu Public Service Commission in the year 1985. It is seen from the materials placed on record that when the juniors of the petitioner, including Mr.N.Mathivanan, the 4th respondent herein, were promoted to the grade of District Revenue Officer (DRO) w.e.f. 25.1.1995, without promoting him, he filed O.A.No.169 of 1995 before the Tribunal, praying to consider his name for inclusion in the panel of District Revenue Officers for the year 1994, without reference to the adverse remarks and censure suffered for him in 1988. 2. The Single Member of the Tribunal, by the order dated 7.2.1995 has allowed the said O.A. and directed the Government to consider the claim of the petitioner for inclusion of his name in the panel of District Revenue Officers for 1994-95, without reference to the belated order of censure passed on the petitioner. Thereupon, the Government filed Review Application No.70 of 1995 before the Tribunal, challenging the competency and jurisdiction of the single Administrative Member in deciding the matter, after the Chairman demitted the office, quoting Section 5(1) of the Administrative Tribunals Act, 1985 and a judgment of this Court in a Writ Petition, holding that such orders passed by a single Member of the Tribunal are illegal since in terms of Section 5(1) of the Administrative Tribunals Act, the Tribunal must consist of a Chairman and other members and that a single member cannot function unless he is authorized by the Chairman. In the said Review Application, the Government also questioned the finding that adverse remarks and punishment of censure need not be a bar for inclusion of the petitioner's name in the panel. It was also contended that the petitioner suffered the punishment of 'censure' and had adverse remarks https://hcservices.ecourts.gov.in/hcservices/ and hence he was 'not found fit' by the Government to be included in the panel of District Revenue Officers for 1994-95. The Tribunal by the order dated 8.12.1995 directed that the orders 'to consider the claim without reference to the order of censure is deleted'. As against the said order of the Tribunal, the petitioner filed S.L.P.No.6059 of 1996 before the Honourable Supreme Court and the Honourable Supreme Court, by the order dated 26.8.1996 in Civil Appeal No.11025 of 1996, has remitted the matter back to the Tribunal for its disposal on merits and in accordance with law. On such remittal, the Tribunal, by the order dated 26.6.2002, in Review Application No.70 of 1995, has observed as follows: "3. Therefore, the fact that the applicant has suffered a punishment by way of censure cannot be ignored and no direction can be given to the respondents to include the name without considering the punishment. Punishment of censure will have an effect and will be in currency only for a period of six months. The Administrative Member also has referred to the currency for the punishment of censure as six months and this is not refuted by the Government. The respondents have not produced any rule or G.O. to show that the currency of punishment of censure will be for more than six months. Therefore, the applicant also has not challenged the punishment of censure imposed on him and the punishment of censure has to be taken into consideration for the purpose of deciding as to whether the name of the applicant could be included in the list for 1993-94. The order of punishment of censure is dated 24.6.1993. This punishment will be in currency for six months so that the applicant cannot be considered for promotion or inclusion till 24.12.1993." "5.... No doubt, the performance of the applicant during the check period of five years should be considered as a whole and the only adverse remark found during this period is the following: "Satisfactory with short-comings" The Reporting Officer is the then District Collector, Chengalpattu, under whom the applicant was serving as R.D.O., Saidapet. The period under review for this adverse remark is only from 1.1.1989 to 15.2.1989. But, at the same time, the respondents cannot dispute the very good remarks passed by the succeeding reporting officers for the same check period. Uniformly, all the subsequent reporting officers have commended on the performance of the applicant as very good for two periods and outstanding for six periods. Moreover, the adverse remark relied upon by the State now is only to the following effect, "Satisfactory with short-comings". We are at a loss to understand as to how this can be taken as an adverse remark, because the Officer has stated that his performance is satisfactory with short-comings. Anyhow, in view of the subsequent assessments made by more than six reporting officers, the first remark, if we can call it as an adverse https://hcservices.ecourts.gov.in/hcservices/ remark, cannot stand in the way of including the applicant's name for the panel 1993-94. We are also now informed that even though the name of the applicant was included in the panel 1994-95, which was actually prepared in October, 1995, whereas persons whose names were included in the panel for 1994-95 were all promoted early and they are juniors to applicant...." 3. With such categorical observations and findings, the Tribunal, has ultimately ordered that 'the applicant is deemed to have been included in the panel for 1994-95 and he is further deemed to have been promoted according to his due seniority from the date on which his immediate junior was promoted.' There is no dispute to the fact that this order of the Tribunal has become final. 4. The case of the petitioner is that even though the Tribunal has passed the order as early as on 26.6.2002 and the same has also become final, and in spite of his repeated representations and appeals, the Government has not implemented the orders of the Tribunal and after a delay of 3¼ years, the Government has issued G.O.Ms.No.924 Public (Special-A) Department, dated 5.9.2005 wherein it has been directed as follows: "4. The Government therefore, direct that the name of Thiru Jawahar Santhakumar, District Revenue Officer be included in the panel of District Revenue Officer for the year 1994 published in the G.O. first read above as S.No.10A below Thiru R.Venkatesan (Sl.No.10) and above Thiru N.Mathivanan (Sl.No.11) and temporarily promoted as District Revenue Officer under General Rule 39(a)(i) of the Tamil Nadu State and Subordinate Services notionally with effect from 25.1.1995 i.e. the date of appointment of his junior viz., Thiru N.Mathivanan promoted to the grade of District Revenue Officer." 5. Now, the grievance of the petitioner is that in the meanwhile, several of his juniors were considered for promotion to the Indian Administrative Service (IAS) and two of them i.e. the fourth and fifth respondents herein were promoted by the order dated 20.5.2005, to the I.A.S. for the three vacancies which arose for the year 2004 by a Selection held on 18.12.2004, but, no review DPC was conducted for considering his promotion to the IAS afresh, following alteration of his original seniority. Therefore, he filed O.A.No.749 of 2006, challenging the order dated 20.5.2005 promoting the respondents 4 and 5 to the IAS and seeking to direct the respondents 1 to 3 to convene Selection Committee for reviewing the promotions made to the IAS for the vacancies of the year 2004 and consider him for promotion thereto, with all consequential benefits. The Tribunal, holding that there is no irregularity committed by the Committee in making the relative assessment or any violation of rules or non-application of mind or discriminatory approach, has dismissed the said O.A. filed by the https://hcservices.ecourts.gov.in/hcservices/ petitioner. Aggrieved, this writ petition has been filed by the petitioner. 6. The consistent stand of the respondents 2 and 3 herein is that the name of the petitioner was also considered by the Selection Committee, which met on 18.12.2004, along with other DROs for promotion to IAS as per the relevant rules and regulations in the matter and while his name was considered, he was junior to respondents 4 and 5. It is also contended that the Selection Committee for the year 2004 considered his case and assessed him only as 'good', whereas his juniors the respondents 4 and 5, were assessed as 'very good' and included in the select list of 2004 and it cannot be said that due to non-inclusion of his name in the 1994 DRO panel, he was not appointed to IAS, since even if he has been included in the 1994 year panel of DROs, based on the orders of the Tribunal and his seniority revised, the assessment of the Committee will not change and thus the change of seniority in DRO grade will not alter the assessment of the Committee and would pray to dismiss the writ petition. 7. We have heard Mr.Vijaynarayanan, learned senior counsel appearing for the petitioner, Mr.K.Sridhar, appearing for the Union Public Service Commission and Mr.Dhandapani, Special Government Pleader, appearing for the Government of Tamil Nadu and perused the materials placed on record. 8. There is no dispute regarding the fact that the Tribunal, by the order dated 26.6.2002 has held that 'the applicant is deemed to have been included in the panel for 1994-95 and he is further deemed to have been promoted according to his due seniority from the date on which his immediate junior was promoted.' There is also no dispute regarding the fact that this order of the Tribunal has become final. 9. When the Tribunal, by the judgment dated 26.6.2002, rendered in the R.A.No.70 of 1995 filed by the Government as against the order of the Tribunal in O.A.No.169 of 1995 has ultimately ordered that the petitioner is deemed to have been included in the panel of DRO for 1994- 95 and further he is deemed to have been promoted as DRO according to his due seniority from the date on which his immediate junior was promoted, and when the said judgment of the Tribunal has become final, the Government, in spite of repeated representations by the petitioner from the year 2003 onwards, has not bothered to implement the same in a reasonable time. But, at last, has issued G.O.Ms.No.924 Public (Special-A) Department, dated 5.9.2005, with a long delay of 39 months, by which time, the juniors of the petitioner were promoted to the next cadre i.e. IAS. Though no time limit was fixed by the Tribunal in its order dated 26.6.2002 in R.A.No.70 of 1995, to comply with its directions, when the said order of the Tribunal has become final, in all fairness, the Government should have implemented the order of the Tribunal, within a reasonable time. Instead, it has slept over the https://hcservices.ecourts.gov.in/hcservices/ matter for more than 3 years, in spite of repeated appeals and requests made by the petitioner, as could be seen from the materials placed on record. No reason of any sort, has been offered on the part of the respondents for such a long delay in considering the representations of the petitioner, that too a direction of the judicial forum, which has reached finality, well to the knowledge of the Government. This dilatory tactic exhibited on the part of the Government, taking advantage of the fact that no time limit has been fixed by the Tribunal should be condemned, since the said direction has become final and such delay in action of the Government has prejudicially affected the interest of the petitioner, for no fault of him. This slackness or dilatory tactic exhibited on the part of the Government has costed the petitioner, depriving him of his due consideration for the promotion, when his juniors were considered and even promoted to the IAS. Such slackness exhibited on the part of the Government, in complying with the directions of a judicial forum, merely taking advantage of the fact that no time limit was fixed by the Tribunal, could not be pitted against him, so as to deprive him of his due and to pave way for his juniors to become his superiors. Such tendency should not be appreciated, at the cost of the rights of a genuine candidate. 10. In MOHINDER SINGH GILL vs. CHIEF ELECTION COMMISSIONER [(1978) 1 SCC 405], Krishna Iyer, J., as His Lordship then was, commented that "Natural justice, though varying, is the soul of the rule as fair play in action. It extends to both the fields of judicial and administrative. The administrative power in a democratic set up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Good administration demands fair play in action and this simple desideratum is the fount of natural justice. Fairness is flexible and it is intended for improving the quality of government by injecting fair play into its wheels." 11. In M.S.NALLY BHARAT ENGINEERING CO.LTD. vs. STATE OF BIHAR [(1990) 2 SCC 48], the Honourable Apex Court has held: "Fairness, in our opinion, is a fundamental principle of good administration. It is a rule to ensure the vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant considerations. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. To use the time hallowed phrase “that justice should not only be done but be seen to be done” is the essence of fairness equally applicable to administrative authorities. Fairness is thus a prime test for proper and good administration. It has no set form or procedure. It depends upon the facts of each case. As Lord Pearson said in Pearlberg v. Varty [(1972) 2 All https://hcservices.ecourts.gov.in/hcservices/ ELR 6], fairness does not necessarily require a plurality of hearings or representations and counter-representations. Indeed, it cannot have too much elaboration of procedure since wheels of administration must move quickly." 12. In MANEKA GANDHI vs. UNION OF INDIA AND ANOTHER [AIR 1978 SC 597], a seven Judge Bench of the Honourable Apex Court has held that 'reasonableness and non-arbitrariness is part of Article 14 of the Constitution'. It follows that the Government must act in a reasonable and non-arbitrary manner, otherwise Article 14 of the Constitution would be violated. 13. In O.KONAVALOV vs. COMMANDER, COAST GUARD REGION AND OTHERS [(2006) 4 SCC 620], it has been held by the Honourable Apex Court that 'the State action is restrained by the principles of reasonableness, justice and fair play.' 14. Thus, citations could be multiplied since there is fairly abundant case law regarding the fairness to be exhibited by the Government. 15. On direction by us, the files regarding the promotions to the IAS pertaining to the years 2002, 2003 and 2004 were submitted before us by the UPSC. We have gone through the said files and found that in all these proceedings, the petitioner has been considered only as a junior to Mr.N.Mathivanan in the category of District Revenue Officer. 16. It is seen from the records submitted before us that during the years 2002 and 2003, the Central Government in terms of Rule 4(2)(b) of the IAS (Recrusitment Rules, 1954 read with Regulation 5(1) of the IAS (Appointment by Promotion) Regulations 1955 had determined the number of posts for recruitment by promotion as two and four respectively. For the said posts, for the select list of 2002, Mr.S.Murugaia and Mr.D.Vivekanandan were selected and for the year 2003, Mr.D.Uthirakkumaran, Mr.V.M.Xavier Chrisso Nagayam, Mr.P.Ekambaram and Mr.V.Chandrasekaran. 17. As could be seen from the said records, the Chief Secretary of the State, by the letter dated 8.12.2003, addressed to the Secretary, Union Public Service Commission, New Delhi, has stated that: "Similarly, Thiru Jawahar Santhakumar who is senior to Thiru N.Mathivanan, in the category of Deputy Collector was promoted on 20.12.1995 to the category of District Revenue Officer later than Thiru N.Mathivanan, on 25.1.1995 and therefore Thiru S.Jawahar Santhakumar is junior in the category of District Revenue Officer to Thiru N.Mathivanan." https://hcservices.ecourts.gov.in/hcservices/ 18. Likewise, as could be seen from F.No.6/18/2003-AIS, it has been mentioned: ".... Similarly, Sh.Jawahar Santhakumar who is senior to Sh.N.Mathivanan in the category of Dy.Collector is junior in the category of District Revenue Officer to Sh.N.Mathivanan as he was promoted later...." 19. These are just examples of many such communications, emanated from the Government officials, that too after the verdict of the Tribunal, dated 26.6.2002, wherein it has been consistently observed that the petitioner is junior to Mr.N.Mathivanan, though such position has already been clarified by the Tribunal, holding that he is senior to Mr.N.Mathivanan and his seniority should be fixed appropriately. All such things happened only because of the slackness or lethargic attitude exhibited on the part of the Government and in giving a go-bye to the principles of fair play and non-arbitrariness, in giving implementation to a judgment of the legal forum, which has become final, thus causing unnecessary hardship to the petitioner. The non-fixation of the inter- se seniority, as has been directed by the Tribunal, within the reasonable time, besides other things, which we will discuss later, have prejudicially affected the case of the petitioner, in getting his due. 20. As this juncture, it is relevant to quote a Division Bench judgment of this Court delivered in W.P.Nos.16712 to 16714 of 1997, dated 13.11.1997, relied on by the petitioner, wherein it has been observed as follows: "The Tribunal was of the view that their inter se placements as arrayed within the area or zone of consideration would necessarily have had an impact also on the method, nature and extent of consideration for assessment of merits and to what extent the same had influenced the mind of the select committee in so assessing the merits also could not be ascertained or postulated by the CAT and therefore, in the view of the Tribunal and in the light of the principles laid down by the Apex Court noticed in the order, the only justifiable course that was permissible and rightly adopted by CAT was to set aside the list with a direction to re-consider the same in accordance with law afresh, in the light of the revised inter se seniority position. This view of the Central Tribunal below could not be said to be either unreasonable or vitiated by any infirmity in law to call for our interference." 21. Even though, it has been vehemently argued on the part of the respondents, that under the rules, the seniority has no role to play, under the facts and circumstances of the case and in view of the above judgment of the Division Bench of this Court, we are able to see that seniority would also influence the process of selection. https://hcservices.ecourts.gov.in/hcservices/ 22. When the petitioner's seniority was ordered to be re-fixed, and when such conclusion has reached its finality, for no reason offered, the authorities have 'slowed down' the process of including his name in the appropriate place of seniority, and have taken 39 long months to implement the orders of the Tribunal, thus paving the way for the juniors of the petitioner to climb over him. For all the above discussions, we have no hesitation to hold that the Government has committed an illegality on the petitioner, by not implementing the orders of the Tribunal, within a reasonable time, which is expected of by it. Thus, had the petitioner been considered as a senior to Mr.Mathivanan, as has been held by the legal forum as early as on 26.6.2002, which has become final, and had the Government has revised the seniority list, as has been directed by the CAT, within a reasonable time, definitely, the petitioner's name would have been within the zone of consideration much earlier to the period when his junior's cases were under consideration for promotion to the IAS and would have had its own advantage in the process of consideration. 23. When the seniority of the petitioner was upheld by the legal forum, and when the authorities were directed to fix his seniority in the cadre of DRO, a manifest illegality was committed to the petitioner by the Government, in ignoring his name from being selected. On the contrary,, unfortunately, the Select Committee, have preferred Mr.T.K.Ponnusamy to select him provisionally to the IAS. It is seen that against the said Mr.T.K.Ponnusamy, criminal cases in Special C.C.Nos.3, 4 and 5 of 2003 are pending trial before the Chief Judicial Magistrate, Villupuram relating to demand and acceptance of illegal gratification, while he was functioning as Special Officer, Kallakurichi Cooperative Sugar Mills Limited, besides a Vigilance and Anti- corruption proceedings for acquisition and possession of disproportionate assets to known sources of income, are pending. On the other hand, insofar as the petitioner is concerned, no such criminal cases were reported against him. When a person's seniority was ordered to be re-fixed, and when such conclusion has reached its finality, for no reason offered, the authorities have 'slowed down' the process of including his name in the appropriate place of seniority, thus paving the way for the juniors of the petitioner to climb over him. From the perusal of the files, it is also seen that pursuant to the re-fixation of the seniority, as ordered by G.O.Ms.No.924, dated 5.9.2005, no DPC was conducted, to consider the case of the petitioner. 24. Now, let us deal with the other part of the argument of the learned counsel for the respondents that since the Selection Committee has assessed the petitioner only as 'good', even if his seniority is revised, it will not alter the situation. 25. The Indian Administrative Service (Appointment by Promotion) Regulations, 1955, framed by the Government of India, in pursuance of sub-rule (1) of Rule 8 of the Indian Administrative Service https://hcservices.ecourts.gov.in/hcservices/ (Recruitment) Rules, 1954 govern the issue. Regulation 5 the said Regulations, reads as follows: "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 Civil Service as are held by them to be suitable for promotion to the Service. The number of members of the State Civil 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 determined by the Commission: Provided that no meeting of the Committee shall be held, and no list for