IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.6.2006 CORAM THE HON'BLE MR.JUSTICE P.K.MISRA and THE HON'BLE MR.JUSTICE R.SUDHAKAR W.P.NOs.4371, 4374 and 4375 of 2001 and W.P.M.P.No.6168 of 2001 W.P.No.4371 of 2001 1. The Union Public Service Commission rep. by its Secretary, New Delhi 2. The Selection Committee Constituted for preparing 1995-1996 Selection List rep. by Mr.Krishna Mohan, Chairman of the Committee, Union Public Service Commission, New Delhi .. Petitioners -vs- 1. R.Sivakumar, IAS C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 2. The State of Tamil Nadu, rep. by its Chief Secretary to Government, Fort St. George, Chennai 9. 3. The Union of India, rep. by the Secretary to Government, M/s Personnel, Public Grievances and Pensions, New Delhi. 4. Dr.J.Radhakrishnan, IAS C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/ 5. Rajendra Kumar, IAS C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 6. Neeraj Mittal, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 7. Rajesh Lakhani, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 8. Mangat Ram Sharma, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 9. Pradeep Yadav, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 10.Kumar Jayant, IAS C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 11.P.Annamalai, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 12.K.Gopal, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 13. V.Thangavelu, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 14. V.Murthy, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/ 15. K.Dhanavel, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 16. The Registrar, Central Administrative Tribunal, Chennai Bench. .. Respondents W.P.No.4374 of 2001 The Union Public Service Commission rep. by its Secretary, Shajahan Road, New Delhi .. Petitioner -vs- 1. K.Karuthiah Pandian, IAS C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 2. The Union of India, rep. by the Secretary to Government, M/s Personnel, Public Grievances and Pensions, New Delhi. 3. The State of Tamil Nadu, rep. by its Chief Secretary to Government, Fort St. George, Chennai 9. 4. V.Thangavelu, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 5. V.Murthy, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 6. K.Dhanavel, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/ 7. Tmt.Kannegi Packianathan, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 8. Basheer Ahmed, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 9. R.Sivakumar, IAS C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 10.M.Malik Feorze Khan, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 11.A.S.Jeevarathinam, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 12.The Registrar, Central Administrative Tribunal, Chennai Bench. .. Respondents W.P.No.4375 of 2001 1. The Union Public Service Commission rep. by its Secretary, New Delhi 2. The Selection Committee Constituted for preparing 1995-1996 Selection List rep. by Mr.Krishna Mohan, Chairman of the Committee, Union Public Service Commission, New Delhi .. Petitioners -vs- 1. R.Sivakumar, IAS C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/ 2. The State of Tamil Nadu, rep by its Chief Secretary to Government, Fort St. George, Chennai 9. 3. The Union of India, rep. by the Secretary to Government, M/s Personnel, Public Grievances and Pensions, New Delhi. 4. V.Thangavelu, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George,Chennai 9. 5. V.Murthy, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 6. K.Dhanavel, IAS, C/o Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai 9. 7. The Registrar, Central Administrative Tribunal, Chennai Bench. .. Respondents Writ petitions filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the records pertaining to O.A.Nos.238, 466 and 781 of 1998 on the file of the Tribunal order dated 13.11.2000 and quash the same. Mr.V.T.Gopalan, Addl. Solicitor General for Mr.R.Santhanam, Sr, CCG in all W.Ps. : For petitioners Mr.G.Masilamani, SC for Mr.R.Sivasubrmanian: For R1 in WP 4371 & 4375/01 Mr.Vijay Narayan, SC for R.Parthiban : For R1 in W.P.No.4374/01 Mr.NGR.Prasad and Mr.Chandrasekaran for Mr.C.M.Krishna Kumar : For R10 and R11 in W.P.4374/01 https://hcservices.ecourts.gov.in/hcservices/ Mr.Bader Sayeed Addl. Advocate General, assisted by Mr.P.P.Shanmugasundaram : For R2 in W.P.4371 & 4375/01 & for R3 in W.P.4374/01 Mr.G.Sankaran : For R7 to R13 & R14 in W.P.No.4371/01 and for R4 & R5 in W.P.4374/01 COMMON JUDGMENT P.K.MISRA, J. These three writ petitions have been directed against a common Judgment passed by the Central Administrative Tribunal arising out of O.A.Nos.238, 466 and 781 of 1998. 2. O.A.No.238 of 1998 is filed by Mr.R.Sivakumar to call for the records of the Select List of 1996 of the respondents 1 to 4 along with the subsequent notification in No.F.14015/22/96—AIS(I) of the Ministry of Personnel, Public Grievances and Pensions, Government of India, dated 30.12.1996 and set aside the placement of 5th, 6th and 7th respondents in the Select List at S.No.1,2 and 3 respectively and direct the respondents 1 to 4 to place the applicant as against S.No.1 in the Select List of 1996 and accordingly reissue the notification in No.F.14015/22/96—AIS(I) of the Ministry of Personnel, Public Grievances and Pensions, Government of India, dated 30.12.96. 3. The very same applicant R. Sivakumar also filed O.A.No.781 of 1998 calling for the records of the impugned proceedings of the 4th Respondent dated 23.6.1997 in F.No.14014/10/96-AIS(I), Government of India, Ministry of Personnel, Public Grievance & Pensions, Department of Personnel & Training, communicated vide Letter No.4030/97-1, Public (Special-A) Department, Fort St. George, Chennai 600 009, and quash the impugned proceedings in F.No.14014/10/96-AIS(I), Government of India, Ministry of Personnel, Public Grievance & Pensions, Department of Personnel & Training, dated 23.6.1997 and further direct the Respondents 1 to 4 to allot 1991 as a year of allotment and place the applicant below Mr.V. Murthy and above the 5th Respondent in interse seniority list of the IAS Officers of Tamil Nadu Cadre. 4. O.A.No.466 of 1998 had been filed by one S.Karuthiah Pandian for quashing the Select List of 1996 and other records relating to fixation of seniority ordered in Select List No.14014/17/97-AIS(I) dated 28.2.1997 as conveyed in G.O.Ms.No.917, Public (Spl.A) https://hcservices.ecourts.gov.in/hcservices/ Department, dated 29.07.1997 and to revise the seniority of the applicant by placing him in the appropriate place and confer all the consequential benefits. 5. In all the original applications, Union of India, Union Public Service Commission and the State of Tamil Nadu had been arrayed as respondents 1 to 3 and the persons included in the select list had also been arrayed as respondents. For convenience, the parties shall be referred to by their name. 6. The background and facts giving rise to the present writ petitions can be narrated briefly as follows. The question relates to the preparation of select list for promotion of officers in the State Civil Service to the Indian Administrative Service. During the year 1996, 8 vacancies were expected to be filled up and therefore, as per the regulation, a select list of 10 persons was required to be prepared. Accordingly, a Selection Committee headed by a member of the Public Service Commission Mr.Krishnamohan was constituted and it included 4 other members. The names of 30 senior most officers in the State Civil Service were taken up for consideration by the Selection Committee. The Selection Committee, by its proceedings dated 18.03.1996 prepared a select list of 10 persons. In such list, the name of the Applicant in O.A.No.238 of 1998, Mr.Sivakumar, was included at Sl.No.7 and that of K.Karuthiah Pandian, Applicant in O.A.No.466 of 1998 was included at Sl.No.10. Initially, the State Government forwarded such select list without any comment. Certain representations were made on behalf of State Civil Service Officials Association alleging that many of the senior officers had been unjustifiably ignored and some of the senior officers included in the list had been pushed down with a view to accommodate some junior officers. In response to Government of India DOP & T letter dated 19.7.1996, by letter dated 26.07.1996, which emanated from the Government of Tamil Nadu, it was intimated that the entire service records of two persons namely S.Natarajan and Mr.Dhanavel were not available with the Selection Committee at the time of meeting on 18.03.1996. On 13.08.1996, the Government of India, wrote a letter to the Union Public Service Commission indicating the absence of ACR's of two officers and to examine the matter in detail and take remedial measures. On 30.08.1996, the Union Public Service Commission decided to reconvene the meeting of Selection Committee after obtaining the missing ACR's and requested the State Government to make available the service records of Mr.S.Natarajan and Mr.Dhanavel. The fresh Selection Committee was headed by the very same member Mr.Krishnamohan, but of the new six members committee, four members, were new and were not members earlier. The new Selection Committee reconsidered the records of Mr.Dhanavel and Mr.S.Natarajan and prepared a fresh list which was communicated to the Union Public Service Commission by letter dated 21.11.1996. While Mr.Dhanavel was retained at the original position at Sl.No.3, Mr.S.Natarajan, who had been placed at Sl.No.4 in https://hcservices.ecourts.gov.in/hcservices/ earlier list of 18.3.1996 was placed at Sl.No.10 in the new list dated of November, 1996 and because Mr.Natarajan was pushed down at Sl.No.10 and the persons occupying the earlier select list dated 18.03.1996 at Sl.Nos.5 to 10 gained one place and accordingly R.Sivakumar, who was at Sl.No.7 became Sl.No.6 and Mr.Karuthiah Pandian, who was at Sl.No.10 became Sl.No.9. Such revised select list was approved by the Union Public Service Commission on 13.12.1996 and was acted upon by the Government of India, by passing order dated 30.12.1996, promoting Sl.Nos1 to 8 of the select list to the cadre of I.A.S. Subsequently, Mr.Karuthiah Pandian was appointed as I.A.S. on 03.01.1997. Thereafter, Mr.R.Sivakumar filed O.A.No.238 of 1998 mainly challenging the wrong placement of Mr.V.Thangavelu, Mr.V.Moorthy and Mr.K.Dhanavel at Sl.Nos.1 to 3 of the select list and praying for setting aside the placement of those persons and claiming that he should be placed at Sl.No.1 of the list. In such original application, those three persons had been arrayed as respondents 5, 6 and 7 respectively. However, the other persons in the select list including Tmt.Kannagi Bhagyanathan and Mr.Basheer Ahmed who were placed above Mr.Sivakumar were not impleaded as respondents. Subsequently, Mr.Sivakumar also filed O.A.No.781 of 1998 claiming seniority over the direct recruits and also Mr.V.Thangavelu, Mr.Murthy and Mr.Dhanavel and that year of allotment should be changed based on such seniority. The other Original Application was filed by Mr.Karuthiah Pandian. In such original application, all the 10 persons included in the select list had been impleaded as respondents. 7. The main contention raised in the original applications challenging the select list were two fold. It was first contended that Mr.Krishnamohan who was the Chairman of the Selection Committee which prepared a selection list on 18.03.1996, should not have functioned as Chairman of the reconvened Selection Committee held on 7/8th November, 1996. Allegation of mala fide were made against Mr.Krishnamohan that he had obtained certain concessions from the Government and Mr.S.Natarajan being the Private Secretary of the then Chief Chief Minister had helped him in such matter and therefore the select list was vitiated on the ground of personal bias and vested interest. It was also indicated by Mr.Sivakumar that since he was an office bearer of the State Civil Service Officers Association and since such association had made representation against the Selection Committee, the Committee bore a grudge against him. It was also contended that the select list was prepared without application of mind and based on incomplete record and therefore it was not properly drawn. The second contention relates to arbitrariness in preparing the select list. It was contended that the administrative record of both the applicants were outstanding throughout and those two applicants should have been categorised as 'Outstanding' and not as 'Very good' and because of such arbitrary and mala fide categorisation, the two applicants had been pushed down in the select list. The Selection https://hcservices.ecourts.gov.in/hcservices/ Committee represented through the Chairman of the Committee Mr.Krishnamohan had been arrayed as respondents in the original application filed by Mr.Sivakumar. 8. Before the Tribunal, separate counter affidavits were filed by the Union Public Service Commission in O.A.No.238 of 1998 and O.A.No.466 of 1998. Apart from the procedure contemplated in the Rules and Regulations, it was stated that on comparative statement of the service records of all the officers coming within the zone of consideration, the Selection Committee had categorised Mr.Thangavelu, Mr.Murthy and Mr.Dhanavel as 'Outstanding' and had categorised the other persons in the select list as 'Very good' and thereafter, on the basis of such categorisation, the list had been prepared, keeping in view the relative seniority. It was also indicated that the Selection Committee consisting of one member of the Union Public Service Commission and several senior officers of the State Government had decided the matter keeping in view the relative merits of the candidates and in such circumstances the assessment was not open for challenge or to be reassessed by the Tribunal. The Union of India and State Government also had filed counters taking almost similar stands. 9. Before the Tribunal, the relevant records including the service records of all the persons in the select list was made available. The Tribunal, on consideration of the materials and records, came to the conclusion that even though Mr.Krishnamohan had died in the meantime and while he is not in a position to file any counter rebutting the allegations relating to mala fides, the Union Public Service Commission had not specifically rebutted the allegations relating to mala fides and therefore, it was contended that the allegations un-rebutted should be taken to be true. In other words, the Tribunal came to the conclusion that preparation of the select list was vitiated by mala fides of the Selection Committee, which was headed by Mr.Krishnamohan. The Tribunal, held as follows:- "In the reply filed by the UPSC, there is not even a whisper controverting the above averment made by the applicant. It may be true that Mr.B.Krishnamohan, the then member of the UPSC is no longer alive to defend himself. But, it is expected that the UPSC is duty bound to have touched upon this point which has a direct bearing on the functioning of the selection committee. It is not an allegation which has been made in a huff by an irresponsible person; but, has been made by a responsible SCS officer (new in IAS) who had put in more than 15 years of service and has even quoted the incident with details about the persons. Neither the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Government nor the UPSC have chosen to controvert the above said allegation with regard to mala fide attitude on the part of the then Chairman, who headed the selection committee meeting. Had the mist of mala fides or malice in action been cleared, the selection committee's proceeding cannot be termed as biased. But that has not been done. We therefore hold that, in the absence of rebuttal, the attitude of mala fides attributed to the selection committee, UPSC and the State Government cannot be brushed aside." 10. The Tribunal further observed that though ordinarily it was not within the jurisdiction of the Tribunal to re-assess the selection process. Since the action of the Tamil Nadu Government, the Selection Committee and the UPSC bristled with lot of irregularities, the Tribunal has jurisdiction to interfere with the proceedings of the Selection Committee when glaring injustice had been done to meritorious State Civil Service Officers. In this connection, while considering the issues, the Tribunal had further observed that, in the subsequent selection meeting the grading of one officer was changed from 'Outstanding' to 'Very good' (apparently S.Natarajan who was considered 'Outstanding' in the first selection list and placed at Sl.No.4 was considered 'Very good' in the second selection and was pushed down to Sl.No.10). 11. In this connection, the Tribunal observed as follows: "The applicants in O.A.Nos.238 and 466 of 1998 have claimed that all along they have been uniformly graded as 'outstanding' during their entire career as SCS officers and in particular during the preceding five years of the selection committee meeting and therefore the grading/categorisation given to them by the selection committee as 'very good' is not correct and cannot be sustained. In order to examine this aspect of the case we were inclined to peruse the ACR dossiers of the applicant and their gradings, as prepared by the State Government to facilitate the selection committee and we want to record our views on this aspect. In this connection, we would like to observe that our action on the face of it may look as if we are sitting over the assessment of the selection committee as an appellate body. But, based on the other details of the case with regard to the controversy relating to missing ACRs, the decision to reconvene the meeting which https://hcservices.ecourts.gov.in/hcservices/ ultimately had resulted in downgrading the assessment of atleast one officer, we hold that it would not be totally incorrect to give some credibility to the claim of the applicants that there is not only bias but there is arbitrariness in the action of the selection committee. We reiterate that there is some truth in the assertion made by the applicants in these OAs. Therefore, in order to find out as to whether the action of the selection committee would come within the ambit of arbitrary action and consequently there is violation of Art.14 and 16 of the Constitution, needs examination. We have therefore no hesitation to observe that our action cannot be termed as if the Tribunal is acting as an appellate body, but is entitled to examine whether the methodology adopted is according to the rules or there is non-following of the rules/regulations and whether is based on actual recorded facts or not." 12. The Tribunal further observed as follows:- "We further would like to observe that a perusal of the ACRs of the two applicants alone would not suffice. In fact, 10 officers were included in the select list for appointment to the IAS and therefore any change in the gradings given to the applicants would adversely affect the interest of the other officers considered and included in the select list. Though we are compelled to go into the details of the gradings given to the applicants, we refrain from passing any specific remark, except holding that the whole exercise is required to be done afresh in accordance with the rules/regulations on the subject. We therefore once again reiterate that this Tribunal has got the right to interfere with the proceedings of the selection committee when it is apparent that injustice has been done to the officers considered by it and which fact has also been proved beyond doubt as incorrect procedure has been followed." 13. Ultimately, after perusing the relevant ACRs of Mr.Sivakumar, the Tribunal concluded that he had been graded 'outstanding' for four years and for one year 'very good' and as a matter of fact, even in the year, where he had been considered as 'very good', the reporting officer had considered him to be 'outstanding'. Ultimately, the Tribunal, summarised its conclusion https://hcservices.ecourts.gov.in/hcservices/ in paragraph 45. The summary of such conclusion is to the effect that the allegation of bias had not been rebutted by the official respondents. The UPSC had also erred by reconvening the same selection committee and by doing so, they had exceeded the jurisdiction and there was arbitrariness in the proceedings of the selection committee which had categorised one officer as 'outstanding' in the first meeting without complete records, whereas the very same officer was down graded as 'very good', which only indicate that there was non application of mind on the part of the Selection Committee. There has been deviation from the past practice/convention with regard to assigning of seniority in pursuance of inclusion in the select list and the action of the official respondents suffers from the vice of arbitrariness. If there was any fall in standard of any particular person, that should have been communicated which has not been done in the present case. There was no basis for the grading given to the applicant in O.A.No.466 of 1998 Mr.Karuthiah Pandian, especially that during the relevant period, his ACR has been graded as 'outstanding' and therefore, the action of the Selection Committee was arbitrary. The Official respondents have failed to follow Regulation 3(b) of IAS (Regulation of Seniority) Rules 1988. The other member of the Tribunal by agreeing with the findings in the main judgement had also furnished additional legal discussions, but it is not necessary to repeat those aspects. Ultimately, the Tribunal quashed the impugned orders and directed the official respondents to consider the case of the applicants vis-a-vis the private respondents in the original applications by constituting a fresh selection committee, for drawing up a fresh select list. 14. After pronouncing the judgment in the above matter, the Tribunal also clarified to the following effect: "The promotion of the applicants and private respondents to the IAS cadre is not affected by this order. It stands as it is. The grading, seniority and the year of allotment to be given would form the subject matter to be considered by convening a selection committee". 15. Such Judgment and direction of the Tribunal has been challenged in these writ petitions by the Union Public Service Commission. 16. The main contention raised by the Additional Solicitor General appearing for the UPSC are to the following effect:- The Tribunal has committed grave irregularity in concluding mala fides merely because the UPSC had not specifically rebutted the allegations relating to mala fides and particularly when the Tribunal had come to the conclusion, that Mr.Krishnamohan against https://hcservices.ecourts.gov.in/hcservices/ whom allegations of mala fides had been made, had died in the mean time when the matter was taken up by the Tribunal, therefore was not in a position to rebutt the allegations of mala fides. It is further submitted that the allegations relating to mala fides are very vague and even though unrebutted could not have been accepted. The other contention of the petitioner is to the effect that the selection committee consisting of highly responsible and senior officers including the member of the Union Public Service Commission cannot be reviewed by the Tribunal and at any rate, the opinion of the Tribunal is based mainly on the so called mala fides and there was no justification to sit in appeal over the assessment made by the Selection Committee and the Union Public Service Commission. 17. The counsel appearing for the Union of India and the State Government who had been arrayed as respondents in the present writ petitions have more or less supported the stand taken by the Public Service Commission. 18. The counsels appearing for Mr.Sivakumar and Mr.Karuthiah Pandian have supported the decision of the Tribunal. They have also contended that the ACRs of those two applicants being 'outstanding' throughout, their gradation by the selection committee as 'very good' was most arbitrary and based on non application of mind and therefore the direction of the Tribunal for reconsideration is justified. 19. Mr.N.G.R. Prasad, appearing for other private respondents has submitted that in the original applications, all the necessary parties had not been impleaded and therefore the Tribunal should have dismissed the original applications. 20. Before considering the contentions raised by the counsels appearing for different parties, certain basic aspects may be noticed. On the basis of the select list, 8 officers were promoted to