[2017] 2 S.C.R. 896

P. SIVANANDI

RAJEEV KUMAR & ORS.

(Civil Appeal Nos. 4822-4826 of2007)

FEBRUARY 02, 2017

[MADAN B. LOKUR AND PRAFULLA C. PANT, JJ.]

Service Law - Promotion - Delay in writing of Annual Confidential Report (ACR) by superior officers - Effect of - Select Committee considered appellant for promotion w1ps -ACR of appellant written by his superior officers after some delay - Considering the service record and ACR of appellant, he was promoted to JPS - Tribunal and High Court, however, held the_ selection of appellant to be vitiated, on finding that the ACR Of appellant was written beyond the period prescribed by the State Government, hence, was invalid - Propriety of - Held: The ACR of an officer forms a part of his service record and he cannot be prejudiced merely because his superior officers delayed writing it .

- In the instant case, the ACR of appellant was written and reviewed by his superiors after a considerable delay obviously cannot put him to any disadvantage - Further. writing and review of ACR was beyond his control - Therefore, High Court was in errvr in concluding that ACR for period of three and half 1110111hs could not be considered - Decision of High Court to this extent set aside - Indian Police Service (Appointment by Promotion) Regulations, 1955

- Regn.5.

Allowing the appeals, tile Court

HELD:

WhethertbeAnnual Confidential Report (ACR) of an officer forms a part of bis 'service record' and whether it could be ignored for G the pumoses of his promotion merely ou the ground that it was written after some delay.

1.1 It was held by Supreme Court in G Molumasundaram case• that in terms of the IAS Regulations, the UPSC is obliged to consider the service record of a candidate who is eligible for H 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 tht Select Committee for consideration. For this reason, the ACRs of the appellant for 1992-93 and for the period 01.04.1993 to 15;07.1993 were required to be considered by the Review Select Committee. f Para 15] [901-B-C]

*G Mohanasundaram v. R Nanthagopal & Ors. (2014) 13 SCC 172 : [2014] 9 SCR 920 - referred to.

1.2 Fu~her, one of the prindples so laid down is that the prescription ip.· a period for writing an ACR is not mandatory but directory. TJiat being the position, the ACR of the ap11ellant for the period, , Ql.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. [Para

17] [902-D-E]

2.1 The ACR of an officer forms a part of his service record and he cannot be prejudiced merely because his superior officers delayed writing it. The fact that the ACR of the appellant 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 there is no rational basis on which the appellant c'luld be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities. [Paras 1, 19] [898-F; 903-

B-C]

2.2 Under these circumstances, 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 appellant for the period 01.04.1993 to 15.07.1993 and to this extent the decision of the High Court set aside. [Para

20] [903-D]

3. There is nothing to suggest that the Review Select Committee with the UPSC did not consider the case of appellant for promotion on merit or that the view of the Revie>t' Select Committee was perverse in any manner. That being so it would be fo1proper to interfere with the decision arrived at by the Review

A Select Committee with the UPSC on the basis of the service record of appellant more so when it was the submission of the UPSC that what tilted the-scales in bis favour was bis ACR for the period 1992-93 which was earlier missing and which was uot taken into consideration on an earlier occasion. [P11r3 21] [903-E-F] B P. Sivanandi v. Rajiv Kumar MANU/TN/9878/2006 - referred to.

(20141 9 SCR 920

Case Law Reference

referred to Para 13

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4822- 4826 of2007.

From the Judgment and Order dated 27. l 0.2006 of the High Court of Judicature at Madras in Writ Petition Nos. 15791 to 15795 of2006

WITH C. A. No. 4827 of2007.

P. P. Rao, Sr. Adv.; R. Ayyam Perumal, Ms. Eo:; kshi Mukhopadhyay, Swarnendu Chatterjee, Ms. Ananya sarkar, M. P.

Srivignesh, Ad vs. for the Appel I ant.

Ranjit Kumar, SG, Rana Mukherjee, Sr. Adv., Shadman Ali, Ms.

Sunita Sharma, T. N. Razdan, B. Krishna Prasad; Ms. Sushma Suri, B.

Balaji, Muthuvel Palani, Ms. Binu Tamta, Advs. forthe Respondents.

The Judgment of the Court was delivered by

MADAN B. LOKUR, J. 1. These appeals raise a narrow ciuestion for consideration, namely, whetr the Annual Confidential Report (ACR) of an. officer fornis a part of his 'service record' and . whether it could be ignored for the purposes of his promotion merely on the ground that it was written after some delay. In our opinion, theACR ofan officer forms a part of his service.record and he cannot be prejudiced merely because-his superior officers delayed writing it The judgment and order to the contrary passed by the" Madras High Coort on 27'h October, 2006 in W.P.Nos.15791-15795of2006doesnotlaydown the correct law. 1 •

2. As mentioned above, the issue involved in this case is rather narrow and it is not necessary to detail all the facts of the case. Suffi'ce

H ' P. Shanandi v. Rjiv Kumar, MANUfTN/9878/2006

P. SIVANANDI v. RAJEEV.KUMAR & ORS.

it to say that the appellant Sivanandi was directly recruited on or about 6'h May, 1985 as a Deputy Superintendent of Police with the Tamil Na du Police.

3. A Select Committee constituted under the Indian Police Service (Appointment by Promotion) Regulations, J 955 considered Sivanandi, amongst others, for promotion in 1994-95 to the Indian Police Service.

The Annual Confidential Reports (AC Rs) required to be considered for his promotion related to the period from 01.04.1989 to 31.03.1994.

4. The Select Committee graded Sivanandi as 'Good' when it met . on 7•h March, 1995. This grading was apparently arrived at on the basis

_of his service records minus his ACR for 1992-93 which was missing Fand minus his ACR for a part of the period of 1993-94 that is from

01.04.1993 to 15.07 .1993 which had not been written. He was however, considered in the subsequent year 1995-96 and promoted to the JPS with the year of allotment being 1993.

5. On a challenge having been raised to the selection tci the Indian Police Service by some aggrieved officers, an original application was filed before the Central Administrative Tribunal (Tribunal), which set aside the selection for 1994-95. The Tribunal then directed a fresh selection process. The opinion expressed by the Tribunal was accepted by this Court by an order dated 20"' February, 2002 in Civil Appeal Nos.

1299-1305 of 1999 etc. (Christopher Nelson v. U.P.S.C. & Ors.) .

. 6. In view of the above facts, a Review Select Committee constituted under the said Regulations met on 24•h March, J 999 and considered the eligible officers including Sivanandi for promotion to the -· JPS as on the year 1994-95. By this time, the missingACR ofSivanandi .

for the year 1992-93 had been located. Additionally, the ACR for the above period 01.04.1993 to 15.07.1993 which could not be place-0 before the Select Committee in its meeting held on 7•h March, 1995 was also available. In fact, it transpires that th.e ACR for that period of about three and a half months was wri, tten by the Reporting Officer on

14.11.1994; it was reviewed by the Reviewing Officer on 19.0f.1996; it was accepted by the Accepting Authority on 27.01.1996. These dates explain whytheACR forthe period 01.04.1993 to 15.07.1993 could not be plac.ed before the Select Committee when it met on 7•h March, 1995.

7. Be that as it may, in view of the consideration of Sivanadi's ACRs including the ACR for l 99b-93 and for the period from 01.04.1993

A to 15.07.1993 he was graded 'Very Good' and promoted to the JPS with the yearofallotment being 1991.

8. Feeling aggrieved by Sivanandi's selection, the private respondents before us approached the Tribunal through a batch of -applications being O.A. No. 595-598 of2005 and O.A. No. 780 of2005.

9. By a common order dated 5'" May, 2006 the Tribunal allowed the original applications filed by the private respondents on the finding that the ACR for the period 01.04.1993 to 15.07.1993 was invalid and could not have been considered by the Review Select Committee. since it was written beyond the period prescribed by the State Government and therefore S ivanandi 's selection was vitiated. Significantly, the Tribunal held in Sivanandi's favour that the earlier missingACR for 1992-93 which was now made available was rightly considered by the Review Select Committee.

IO. Feeling aggrieved by the limited adverse finding against him by the Tribunal, Sivanandi preferred W.P. Nos. 15791-15795 of2006 in the Madras High Court challenging the common order of the Tribunal vitiating his selection by excluding from consideration the ACR for the period 01.04.1993 to 15.07.1993.

11. One of the submissions made by the Union Public Service Commission (for short 'UPSC') to justify the selection by the Review Select Commission before the High Court was that the ACR for the period 01.04.1993 to 15.07.1993 could validly have been considered by the Review Select Committee. Alternatively, it was submitted that even if it were excluded from consideration, it would make no differel'ce to the overall gradingofSivanandi and that it was the earlier missingACR ofl 992-93 that resulted 'in Sivanandi being graded 'Very_Good' as against the earlier grading of 'Good'. As such, the promotion of Sivanandi to the JPS was fully justified in law and also on merit, even after excluding the ACR for the period 01.04.1993 to 15.07.1993.

12. Unfortunately, the High Court did not accept Sivanandi's contention or that of the UPSC and upheld the view expressed by the Tribunal. It is under these circumstances that Sivanandi is now before us.

13. lt is been brought to our notice by learned counsel for Siva!landi that the issue raised in these appeals is no longer res integra in view of

the decision of this Court in G Molumasumlaram v. R. Ntmtlw!(opal & Ors.'

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.

IS. It was held by this Court that in terms of the !AS Regulations, the UPSC is obliged to consider the service record ofa 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 he sent to the Select Committee for consideratfon. For this reason, the ACRs ofSivanandi for 1992-93 and for the period 01.04.1993 to I 5.07~ 1993 were required to be considered by the Review Select Committee. Regulation S of the Indian Police Service (Appointment by Promotion) Regulations, 1955 reads as follows:-

"S. Preparation of list of suitable officers - - - - (I) Each Committee shall ordinarily meefevery year and prepare a list of such members of the State Police Service, as held by thern to the suitable for promotion to the Service. The number of members of tlie 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

'(2014) n sec 172

A 'outstanding' 'very good' 'Good' or 'Unfit' as the case may be, on an overall relative assessment of their service records.

(5) ......... .

(6) ........ :."

• I 6. In the above-cited decision, one of the submissions made by Mohanasundaram in this Co11rt 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 thatthe ACR could not b" 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 A~R written beyond the period of nine months. Although the GO dated4t April, 2007 was issued after the decision in the impugned judglnent 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 I 5 .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.

I 8. 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 of90 days prescribed thereinjs .ru>t _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 ter.ns of Regulation 5(4) of the Indian Administrative Service (Appointment by Promotion) Regul11tions,. I 955 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 !AS 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 ofUPSC 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) reac\ wit!) Regulation 6 of the Indian Administrative Se..Vice (Appointment by Promotion) Regulations,

1~5~ . -

1·9. That apart, the fact that the ACR ofSivanandi was written and reviewed _by his superior authoities 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 nt see any rational basis on which Sivanandi could be disadvantaged merely because his superior officers were lax in the di, scharge of their responsibilities.

20. Under these circumstances, we are of the view that the High Court while upholding the view expressed by tlw 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 !PS.with the year of all.otmentas 1991. There is nothing to suggest that the Review Select Committee with the U~SC did not consider the case of Sivamindi for promotion on merit or that th'e view of the Review Select Committee was perverse in any manner. That being so we do not think it proper to interfere "'.ith the decision arrived at by the Review Select Committee with the UPSC on the basis of the service record of Sivanandi more so when i.t 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 no.t taken into consideration on an earlier occasion.

. 22. Under these circumstances we uphold the decision taken by the Review Select Committee and allow these appeals by setting aside the order of the High Court. Sivanandi will be entitled to all consequential benefits.

Ankit Gyan Appels allowed.

903 .