Case: P. Sivanandi Vs. Rajeev Kumar

of this Court in G. Mohanasundaram v. R. Nanthagopal & Ors., 2014(3) S.C.T. 623 : (2014) 13 SCC 172. 14. In the aforesaid decision, the provisions of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 were under consideration. The relevant provisions are in pari materia with the provisions of the Indian Police Service (Appointment by Promotion) Regulations, 1955.15. It was held by this Court that in terms of the IAS Regulations, the UPSC is obliged to consider the service record of a candidate who is eligible for promotion and it is on the basis of the overall relative assessment of the service record that an eligible officer may be graded. Consequently, it is quite clear that the entire service record of the eligible candidates is required to be sent to the Select Committee for consideration. For this reason, the ACRs of Sivanandi for 1992-93 and for the period 01.04.1993 to 15.07.1993 were required to be considered by the Review Select Committee. Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1955 reads as follows:-"5. Preparation of list of suitable officers - (1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Police Service, as held by them to the 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 determined by the Commission:Provided that ...........(2)..............(2-A)..........(3)..............(3-A).........(4) The Selection Committee shall 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.(5)..........(6).........."16. In the above-cited decision, one of the submissions made by Mohanasundaram in this Court was that the State Government had declared his ACR invalid merely because it had been written beyond the period of nine months. It was submitted that the ACR could not be held invalid in the absence of any limitation prescribed under any rule or guidelines.17. The State of Tamil Nadu sought to rely upon a Government Order (or GO) dated 4th April, 2007 to deny to the candidate the benefit of the ACR written beyond the period of nine months. Although the GO dated 4th April, 2007 was issued after the decision in the impugned judgment and order, the principle laid down by this Court on the interpretation of that GO would be equally applicable and one of the principles so laid down is that the prescription of a period for writing an ACR is not mandatory but directory. That being the position, the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 could validly have been considered by the Review Select Committee even if it was written after some delay and there was no error in its consideration.18. This is what this Court had to say:"In the guidelines issued by the State Government, there is nothing to declare any annual confidential report invalid. The period of 90 days prescribed therein is not mandatory but directory. The 90 days period is also to be counted from the date of demitting office by the officer who writes the ACR.In view of the discussion above, we hold that in terms of Regulation 5(4) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 it was incumbent upon the State Government to forward complete service records of all the eligible candidates including the first respondent to UPSC for considering them for promotion to the IAS cadre. Withholding of ACRs of the year 2003-2009 of the first respondent on a wrong presumption that they were invalid, is illegal and fatal in the case of the first respondent towards his appointment to the post of Indian Administrative Service. The aforesaid fact though came to the notice of UPSC which sought clarification from the Government of Tamil Nadu, the State Government misled UPSC which resulted in wrong assessment of service records of the first respondent in violation of Regulation 5(4) read with Regulation 6 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955."19. That apart, the fact that the ACR of Sivanandi was written and reviewed by his superior authorities after a considerable delay obviously cannot put him to any disadvantage. The writing and review of his ACR was beyond his control and we do not see any rational basis on which Sivanandi could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities.20. Under these circumstances, we are of the view that the High Court while upholding the view expressed by the Tribunal was in error in concluding that the Review Select Committee could not consider the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 and to this extent the decision of the High Court is set aside.21. The question that now remains is whether on a consideration of the entire service record Sivanandi was entitled to be promoted to the IPS with the year of allotment as 1991. There is nothing to suggest that the Review Select Committee with the UPSC did not consider the case of Sivanandi for promotion on merit or that the view of the Review Select Committee was perverse in any manner. That being so we do not think it proper to interfere with the decision arrived at by the Review Select Committee with the UPSC on the basis of the service record of Sivanandi more so when it was the submission of the UPSC that what tilted the scales in his favour was his ACR for the period 1992-93 which was earlier missing and which was not taken into consideration on an earlier occasion.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. It is been brought to our notice by learned counsel for Sivanandi that the issue raised in these appeals is no longer res integra in view of the decision of this Court in G. Mohanasundaram v. R. Nanthagopal & Ors., 2014(3) S.C.T. 623 : (2014) 13 SCC 172. 14. In the aforesaid decision, the provisions of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 were under consideration. The relevant provisions are in pari materia with the provisions of the Indian Police Service (Appointment by Promotion) Regulations, 1955.15. It was held by this Court that in terms of the IAS Regulations, the UPSC is obliged to consider the service record of a candidate who is eligible for promotion and it is on the basis of the overall relative assessment of the service record that an eligible officer may be graded. Consequently, it is quite clear that the entire service record of the eligible candidates is required to be sent to the Select Committee for consideration. For this reason, the ACRs of Sivanandi for 1992-93 and for the period 01.04.1993 to 15.07.1993 were required to be considered by the Review Select Committee.In the above-cited decision, one of the submissions made by Mohanasundaram in this Court was that the State Government had declared his ACR invalid merely because it had been written beyond the period of nine months. It was submitted that the ACR could not be held invalid in the absence of any limitation prescribed under any rule or guidelines.17. The State of Tamil Nadu sought to rely upon a Government Order (or GO) dated 4th April, 2007 to deny to the candidate the benefit of the ACR written beyond the period of nine months. Although the GO dated 4th April, 2007 was issued after the decision in the impugned judgment and order, the principle laid down by this Court on the interpretation of that GO would be equally applicable and one of the principles so laid down is that the prescription of a period for writing an ACR is not mandatory but directory. That being the position, the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 could validly have been considered by the Review Select Committee even if it was written after some delay and there was no error in its consideration.18. This is what this Court had tothe guidelines issued by the State Government, there is nothing to declare any annual confidential report invalid. The period of 90 days prescribed therein is not mandatory but directory. The 90 days period is also to be counted from the date of demitting office by the officer who writes the ACR.In view of the discussion above, we hold that in terms of Regulation 5(4) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 it was incumbent upon the State Government to forward complete service records of all the eligible candidates including the first respondent to UPSC for considering them for promotion to the IAS cadre. Withholding of ACRs of the year 2003-2009 of the first respondent on a wrong presumption that they were invalid, is illegal and fatal in the case of the first respondent towards his appointment to the post of Indian Administrative Service. The aforesaid fact though came to the notice of UPSC which sought clarification from the Government of Tamil Nadu, the State Government misled UPSC which resulted in wrong assessment of service records of the first respondent in violation of Regulation 5(4) read with Regulation 6 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955.That apart, the fact that the ACR of Sivanandi was written and reviewed by his superior authorities after a considerable delay obviously cannot put him to any disadvantage. The writing and review of his ACR was beyond his control and we do not see any rational basis on which Sivanandi could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities.20. Under these circumstances, we are of the view that the High Court while upholding the view expressed by the Tribunal was in error in concluding that the Review Select Committee could not consider the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 and to this extent the decision of the High Court is set aside.21. The question that now remains is whether on a consideration of the entire service record Sivanandi was entitled to be promoted to the IPS with the year of allotment as 1991. There is nothing to suggest that the Review Select Committee with the UPSC did not consider the case of Sivanandi for promotion on merit or that the view of the Review Select Committee was perverse in any manner. That being so we do not think it proper to interfere with the decision arrived at by the Review Select Committee with the UPSC on the basis of the service record of Sivanandi more so when it was the submission of the UPSC that what tilted the scales in his favour was his ACR for the period 1992-93 which was earlier missing and which was not taken into consideration on an earlier occasion.