Gauhati High Court

Arup Kumar Das vs The Union Of India & Ors on 22 July, 2013

Author:
I. A. Ansari

Bench:
I. A. Ansari

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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM AND
ARUNACHAL PRADESH)

WP(C) No. 4548 of 2012

Sri Arup Kumar Das
- Petitioner
- Versus -
Union of India and others
-Respondents

BEFORE
THE HON'BLE MR. JUSTICE I. A. ANSARI
THE HON'BLE DR. (MRS.) JUSTICE INDIRA SHAH

Advocates present:

For the petitioner : Mr. N Nath, Advocate.
For the respondents : Mr. DC Chakraborty,
Central Govt. Counsel,
Mr. I Hussain, SC, CGC,
Mr. PS Deka, Govt. Advocate, Assam,
Mr. S. Sharma, Advocate,
Mr. DK Mishra, Amicus Curiae,
Date of hearing : 20th June, 2013.
Date of Judgment : 22nd July, 2013

Judgment and Order
(Ansari, J)

The material facts, giving rise to the present writ petition, made

under
Article 226
of the Constitution of India, may, in brief, be set out as

under:

(i) The petitioner came to be appointed, on 18-11-1982, as

Assistant Conservator of Forest, Government of Assam, and he was

promoted, on 21-11-1986, as Deputy Conservator of Forests. The State
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Government published, on 25-08-2005, a draft gradation list showing inter

se seniority of Deputy Conservator of Forests as on 01-08-2005.

(ii) The Union Public Service Commission (hereinafter referred

to as 'UPSC') constituted, in the year 2009, a Selection Committee to

recommend suitable officials from State Forest Service for promotion to

the Indian Forest Service for the year 2008, the number of vacancies, for

carrying out promotion to the Indian Forest Service, being three for the

year 2008.

(iii) As the zone of consideration is taken 3 times the number of

vacancies available, 9 names were to be considered for filling up the said

3 vacancies for the year 2008. The names of the writ petitioner as well as

the 4th respondent herein were included amongst the incumbents, whose

candidature was placed before the Selection Committee for consideration.

(iv) The Selection Committee convened its meeting to

recommend the names of the State Forest Service Officials for promotion

to the Indian Forest Service for the year 2008. Promotion from the State

Forest Service to the Indian Forest Service (hereinafter referred to as 'IFS')

is governed by the Indian Forest Service (Appointment by Promotion)

Regulations, 1966 (hereinafter referred to as the 'Promotion Regulations')

and the criterion for such promotion is merit-cum-suitability.

(v) Regulation 5 (3AA) of the Promotion Regulations provide for

the manner of promotion to the State Forest Service Officials to the IFS. In

terms of Regulation 5(3AA), the Selection Committee shall classify the
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eligible officers as 'Outstanding', 'Very Good', 'Good' or 'Unfit', as the

case may be, on the basis of overall relative assessment of their service

records. Thus, the Annual Confidential Reports (hereinafter referred to as

'ACR(s)') of the last 5 years, immediately preceding the year of selection,

amongst other documents, and records, pertaining to the service of the

candidates, formed the foundation for evaluation of relative merit of the

candidates for their ultimate categorization.

(vi) The ACR of the State Government officials, in Assam, is

recorded in accordance with the provisions of the Assam Services

(Confidential Rolls) Rules, 1990 (hereinafter referred to as 'the ACR

Rules') framed under
Article 309
of the Constitution of India, which

ordain the procedure for writing and maintaining confidential report,

review and acceptance thereof as well as consequential grading of the

officer concerned. Rule 2(c) of the ACR Rules defines confidential report

to be one as drawn up in terms with the procedure laid down in Rule 5 of

the ACR Rules, which, in turn, contemplates that a confidential report,

containing the appraisal of the performance, character, conduct and

qualities of every Government employee, shall be written for each

financial year, ordinarily, within, at the latest, two months of the close of

the financial year. Rule 6 of the ACR Rules envisages that the confidential

report shall be reviewed by the reviewing authority within one month of

its being written. Sub-Rule (3) of Rule 6 makes the reviewing authority or

accepting authority, as the case may be, competent to review the
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confidential report if the authority concerned has seen the performance of

the employee for, at least, 90 days during the period for which the report

has been written. The confidential report, upon review, shall, under Rule

7 of the ACR Rules, be accepted with such modification as may be

considered necessary and countersigned by the accepting authority

concerned within one month of its review.

(vii) The meeting of the Selection Committee, constituted by the

UPSC, was convened, on 08-12-2009, to consider the cases of the suitable

eligible officers of the State Forest Service including the cases of the

petitioner as well as 4th respondent and to recommend 3 officials of the

State Forest Service for promotion to the Indian Forest Service. Neither

the petitioner nor the 4th respondent was found suitable for promotion

and their names were accordingly did not figure in the list of

recommendees for promotion to the IFS.

(viii) Acting on the recommendations, so made, Ministry of

Environment and Forest, Government of India, issued a notification, on

25-08-2010, promoting the said three officials to the Indian Forest Service,

these three officials being, Sri Hem Kanta Talukdar, Sri Chitta Ranjan

Borbora and Sri Modhusudhan Singha and these three persons were

accordingly promoted to the Indian Forest Service and allocated the then

Assam-Meghalaya Joint Cadre by notification, dated 31-08-2010, issued,

in this regard, by the Director, Ministry of Environment and Forests,

Government of India. All the three persons, who were so promoted, were
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junior to the petitioner in the gradation list, which had been published, as

already indicated above, on 25-08-2005.

2. In the month of April, 2010, the petitioner came to know from

reliable source that his grading, in the ACR of 2002-03, was given 'Good'

by the reporting authority, but the reviewing authority downgraded it to

'Average' without assigning any reason therefor. The petitioner also

came to learn that in his ACR, pertaining to the period 30-09-2004 to 31-

03-2005, the reviewing officer had assigned him the grading 'Average',

though all the attributes, recorded by the recording officer under various

parameters, indicated that the petitioner could have very well been

graded as 'Good'. This apart, the petitioner also came to learn that his

performance, for the period from 01-04-2004 to 29-04-2004 and also for

the period from 18-08-2005 to 05-01-2006, remained without being

appraised inasmuch as the petitioner's ACRs for the said two periods,

namely, 01-04-2004 to 29-04-2004 and 18.08.2005 to 05.01.2006, had neither

been prepared nor necessary steps were taken, in this regard, by the

reporting officer without any discernible reason.

3. The downgrading of the ACR of the petitioner, for the period 2002-

2003 from 'Good' to 'Average' by the accepting authority without

assigning any reason therefor, was, in effect, an adverse entry,

particularly, in the context of Regulation 5(3AA) of the Promotion

Regulations, which mandates classification of eligible officers as
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'Outstanding', 'Very Good', 'Good' or 'Unfit' on the basis of overall

assessment of the relative merit of their service records.

4. In the face of the classification, which is required to be made by

Regulation 5(3AA), any entry, which is below 'Outstanding', is an

adverse entry and it will render a person 'Unfit' for promotion to the IFS.

The said moderated entry, downgrading the petitioner's ACRs from

'Good' to 'Average', for the year 2002-03, was never communicated to the

petitioner at any point of time, though such an entry was an adverse

entry and ought to have been communicated to the petitioner in terms of

Rule 10 of the Assam Services (Confidential Rolls) Rules, 1990.

5. The petitioner, then, filed, on 19-07-2010, a representation to the

Commissioner and Secretary, Environment and Forests, Government of

Assam, seeking review of his ACRs to ascertain if there was any down

grading of any entry, which was adverse in nature and to rectify if there

was any such adverse entry.

6. By his order, dated 16-09-2010, the Commissioner and Secretary,

Environment and Forests, Government of Assam, upgraded the

downgraded entry of the petitioner, for the period 2002-03 as well as for

the period 30-09-2004 to 31-03-2005, from 'Average' to 'Good' and further

directed the concerned recording officers to record the ACRs of the

petitioner for the period, which was left unrecorded, i.e., for the periods

from 01-04-2004 to 29-04-2004 and from 18-08-2005 to 05-01-2006.

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7. Pursuant to the order, so issued on 16-09-2010, the ACRs, for the

periods from 01-04-2004 to 29-04-2004 and 18-08-2005 to 05-01-2006,

which had not been appraised, was subsequently recorded and the

petitioner was assigned the grading 'Very Good' and 'Outstanding' for

the periods from 01-04-2004 to 29-04-2004 and from 18-08-2005 to 05-01-

2006, respectively.

8. Thereafter, the 4th respondent, too, preferred representation to the

Commissioner and Secretary, Environment and Forests, Government of

Assam, seeking upgradation of his downgraded entries for the period

2002-03, 2003-04, 2004-05, 2005-06 and 2006-07 and the entries, recorded

therein, were, eventually, upgraded to 'Very Good' by an order, issued, in

this regard.

9. Following the upgradation of entries of the petitioner, the Principal

Secretary, Government of Assam, addressed a communication, on 21-05-

2001, to the UPSC requesting the UPSC to hold Review Selection

Committee for reviewing the select list of the year 2008. Earlier thereto,

the petitioner as well as the 4th respondent had moved the Central

Administrative Tribunal, Guwahati Bench, seeking directions to be issued

to the UPSC to hold meeting of the Review Selection Committee for the

purpose of considering the cases of the petitioner and the 4th respondent

for promotion to the IFS. The present petitioner's application gave rise to

Original Application (in short, 'OA') No. 211 of 2011, which was disposed

of by the learned Tribunal, on 26-09-2011, by directing the UPSC to hold
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Review Selection Committee within a period of three months from the

date of receipt of the order so passed by the learned Tribunal.

10. Pursuant to the order, so passed by the learned Tribunal, a Review

Selection Committee was constituted to review the select list of the year

2008. The Review Selection Committee accordingly convened its meeting

on 09-12-2011 and recommended the case of 4th respondent for promotion

to the IFS for the year 2008. This recommendation was put to challenge

by the present petitioner by making an application under
Section 19
of

the Central Administrative Tribunals Act, 1985, at Guwahati, which gave

rise to Original Application (in short, 'OA') No. 64 of 2012. The said

application has, however, been dismissed by order, dated 05-09-2012.

Aggrieved by this order, dated 05-09-2012, dismissing his OA, the

petitioner has made the present writ petition, under
Article 226
of the

Constitution of India, seeking issuance of appropriate directions.

11. We have heard Mr. N. Nath, learned counsel for the petitioner, and

Mr. D. C. Chakraborty, learned Central Government counsel, appearing

for respondent No. 2. We have also heard Mr. I. Hussain, learned Central

Government counsel, appearing for respondent No. 1, Mr. P. S. Deka,

learned Additional Senior Govt. Advocate, appearing for respondent No.

4, and Mr. D. K. Mishra, learned Senior counsel, appearing as amicus

curiae.

12. The first contention, raised on behalf of the petitioner, is that there

has been violation of
Regulation 5(3AA)
of the Indian Forest Service
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(Appointment by Promotion) Regulations, 1966 (which is being referred

to as the 'Promotion Regulations'), inasmuch as the Review Selection

Committee, contends Mr. Nath, has not considered, in accordance with

law, the petitioner's 5 years record of service immediately preceding the

year of selection, i.e., the year 2008.

13. Resisting the submission, so made, the respondents contend, in

tune with each other, that the Review Selection Committee did consider,

in accordance with the statutory obligations and the 'guidelines' issued, in

this regard, by the UPSC, i.e., respondent No.2, the records of the

petitioner's service for the requisite periods.

14. Let us, now, determine the correctness of the rival submissions,

which have been made before us.

15. While considering the question as to whether the Review Selection

Committee has dealt with the petitioner's case and considered his ACR(s)

for the requisite period of 5 years in accordance with the requirements of

law, what needs to be noted, at the very outset, is that a Review Selection

Committee has, nowhere, been defined under the Promotion Regulations

or under the 'guidelines', which have been issued by the UPSC. However,

Regulation 2(d)
of the Promotion Regulations defines a 'Committee' to

mean the Committee set up in accordance with
Regulation 3
. In order,

therefore, to find out as to what a 'Committee' would, in the context of the

Promotion Regulations, mean, one is necessarily required to travel to

Regulation 3
, which deals with the constitution of the Committee for
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making recommendation from the State Forest Service (which is being

referred to as, 'SFS'). The relevant provisions of
Regulation 3
read as

under:

"3. Constitution of the Committee to make selection-

(1) There shall be constituted for each of the Joint Cadres a Committee
consisting of the Chairman of the Commission or where the Chairman is
unable to attend, any other member of the Commission representing and
the following other members namely:-

(a) For States other than Joint Cadres and Union Territories -

i) The Chief Secretary or Additional Chief Secretary;

ii) Secretary to the Government dealing with Forests;

iii) Principal Chief Conservator of Forests;
iv) A senior member of the Service not lower in rank
than a Conservator of Forests; and
v) A nominee of the Government of India not below
the rank of a Joint Secretary.

(aa) For Joint Cadre :-
i) Chief Secretaries to the Governments of the Constituent
States.

ii) Chief Conservator of Forests of the Constituent States.

ii) A nominee of the Government of India not below the rank of
a Joint Secretary.

(b) For Union Territories -

(1) Joint Secretary in the Ministry of Home Affairs dealing with
Union Territories;

(2) Inspector-General of Forests or Dy. Inspector General of Forests,
(3) Chief Secretary of one of the Union Territories,
(4) A Senior member of the Service not lower than in rank than a
Conservator of Forests:

Provided that the Central Government may, if deemed necessary, after
consultation with the State Government concerned alter the
composition of the Committee.

(2) The Chairman or the member of the Commission shall preside at all
meetings of the committee at which he is present.

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(3) The absence of a member, other than the Chairman or member of the
commission, shall not invalidate the proceedings of the Committee if
more than half the members of the Committee had attended its
meetings."

16. From a bare reading of
Regulation 3
, it becomes clear that the

Selection Committee, in order to consider cases of promotion from State

Forest Service (i.e., 'SFS') to Indian Forest Service (i.e., 'IFS'), has to be

constituted in terms of
Regulation 3
. As far as the procedures for

selection and preparation of Select list is concerned, the same have been

laid in
Regulation 5
. Mr. Nath, learned counsel, appearing for the

petitioner, is correct in contending that a Review Selection Committee is

nothing, but a Committee constituted under
Regulation 3
of the

Promotion Regulations.

17. What logically follows from the above discussion is that a Review

Selection Committee, being a Committee constituted under
Regulation 3
,

has no option but to follow (same as a Committee constituted under

Regulation 3
) the procedure laid down in
Regulation 5
for the purpose of

making selection and for preparing select list of officers of the SFS to be

promoted to IFS. A Review Selection Committee, otherwise also, must

proceed to take a decision as regards selection as if it is considering a

given case afresh and for the first time.
The support, sought to be

received, in this regard, by Mr. Nath, learned counsel, from the case of

Gurdial Singh Fiji vs. State of Punjab
, reported in (1979) 2 SCC 368, and

UPSC vs. Hiranyalal Dev (AIR 1988 SC 1069), is not misplaced inasmuch

as the appellant, in
Gurdial Singh Fiji
's case (supra), was not considered
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for promotion to IAS on the ground of adverse entry in his ACR(s) for the

period 1966-67 against which the appellant's representation was pending

disposal. The Supreme Court held the non-consideration of the

appellant's representation as illegal and directed reconsideration of the

appellant's case by taking into consideration the Govt. decision on his

representation and his service records up to date.

The relevant

observations, made by the Supreme Court, in
Gurdial Singh Fiji
's case

(supra), read as under:

19. In matters of this nature, particularly when the Select lists have

to be prepared and reviewed from year to year, it becomes difficult

to work out the logical consequences of holding that the case of any

particular officer ought to be reconsidered. But, inevitably, for

reasons mentioned above, the case of the appellant shall have

to be considered afresh by the Selection Committee. How best

to do it has to be left to its wise discretion in the matter of details,

but in order to eliminate, insofar as one may, chances of yet another

litigation we ought to indicate the broad frame-work within which

the Committee should act and the preliminary steps which the

Government must take in order to facilitate the Committee's task.

20. In the first place, the State Government shall consider and

dispose of within two months from today the representations made

by the appellant on January 23, 1969 and December 19, 1971 in

regard to the adverse report in his confidential roll, for the year

1966-67. We are hopeful that the High Court will cooperate with

the Government in the disposal of the representations. The

Selection Committee will, within three months thereafter, decide

whether the appellant should be included in the Select list as of

May 11, 1973. That question has to be decided in accordance with
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the relevant regulations by applying the test of merit and

suitability cum-seniority. For deciding the question of appellant's

merit and suitability, the Selection Committee will take into

consideration the Government's decision on his representations

and his service record up-to-date. If the Committee decides that he

is not suitable for inclusion in the Select list and, should therefore,

be superseded, it shall record its reasons for the proposed

supersession. If, on the other hand, the Committee decides to

include his name in the Select list, he will be entitled to rank in

that list in accordance with his seniority as of May 11, 1973

unless, in the opinion of the Committee, there is a junior officer of

exceptional merit and suitability who may be assigned a higher

place. The Selection Committee will review the list for 1973 in

accordance with these directions. The Union Public Service

Commission will thereafter be consulted in accordance with

the regulations. The Select list as finally approved by the

Commission will form the Select list of the members of the

State Civil Service.

(Emphasis is added)

18. The reference made by Mr. Nath, learned counsel for the petitioner,

to the case of Hiranyalal Dev (supra) is also not misplaced wherein the

appellant was not considered suitable for promotion to IPS due to some

adverse entries, which were not communicated to him. Subsequently, the

adverse entries were communicated and the same were expunged after

considering the representation of the appellant. The relevant

observations, appearing at para 5 and 9 of Hiranyalal Dev (supra), read

as under:

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"5. It cannot be gainsaid that the Selection Committee could not have

taken into consideration the adverse remarks entered in the records

which had not been communicated to Respondent 1, and in any case

could not have taken into consideration these remarks which were

subsequently set aside by the State Government. The legal effect of the

setting aside of the adverse remarks would be that the remarks must

be treated as non-existent in the eye of law. The Selection Committee

had, therefore, fallen in error in taking into account these adverse

remarks which in the eye of law did not exist and which could not

have been lawfully taken into consideration. However, the fact that the

Selection Committee erred in this behalf does not necessarily mean that

Respondent 1 should have been categorised or considered as "very good' vis-

a-vis others who were also in the field of choice. How to categorise in the light

of the relevant records and what norms to apply in making the assessment are

exclusively the functions of the Selection Committee. The Tribunal could not

make a conjecture as to what the Selection Committee would have done or to

resort to conjecture as to the norms to be applied for this purpose. The proper

order for the Tribunal to pass under the circumstances was to direct the

Selection Committee to reconsider the merits of Respondent 1 vis-a-vis the

official who was junior to him and whose name was Shri Sardar Pradeep Kar.

Instead of doing so, the Tribunal has held that Respondent 1 should be

deemed to have been included in the impugned select list prepared in 1983, at

least in the place in the order of his seniority on the basis of the assessment of

his C.C. Rolls, and has issued a direction to appoint Respondent 1 with effect

from the date on which Shri Kar was appointed. The jurisdiction to make the

selection vested in the Selection Committee. The Selection Committee had

to make the selection by applying the same yardstick and norm as

regards the rating to be given to the officials, who were in the field of

choice by categorising the concerned officials as "outstanding", "very

good", "good" etc. This function had also to be discharged by the

Selection Committee by applying the same norm and tests and the
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selection was also to be made by the Selection Committee as per the

relevant rules. The powers to make selection were vested unto the Selection

Committee under the relevant rules and the Tribunal could not have played

the role which the Selection Committee had to play. The Tribunal could not

have substituted itself in place of the Selection Committee and made the

selection as if the Tribunal itself was exercising the powers of the Selection

Committee, as has been done which is evident from the passage extracted from

para 16 of the judgment:

"We have also gone through the C.C. Roll, of the two junior officers,

Respondents 11 and 12 for the same period of five years including 1982-

83. We are of the definite view that there is absolutely no reason after

expunction of the adverse remarks to hold that the applicant deserved a

lower classification than these two respondents, who were junior to him."

The proper course to adopt was the course which was indicated by

this Court in
Gurdial Singh Fijji v. State of Punjab
wherein this

Court directed that the case of the appellant be considered afresh by

the Selection Committee indicating the broad framework within

which the Committee should act and the preliminary steps the

Government should take in order to facilitate the Committee's task.

In
State of Mysore v. Syed Mahmood
a dispute about promotion of certain

officers had been raised. In writ petitions filed by the aggrieved officers the

High Court passed orders directing the State Government to promote them

from the respective dates on which respondents junior to them were

promoted. The orders passed by the High Court were set aside by this Court

and a direction was issued to the State Government to consider whether the

said officers should have been promoted on the relevant dates. It was held:

"The promotions were irregularly made and they were, therefore, entitled

to ask the State Government to reconsider their case. In the circumstances,

the High Court could issue a writ to the State Government compelling it to

perform its duty and to consider whether having regard to their seniority and

fitness they should have been promoted on the relevant dates when officers
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junior to them were promoted. Instead of issuing such a writ, the High Court

wrongly issued writs directing the State Government to promote them with

retrospective effect. The High Court ought not to have issued such writs

without giving the State Government an opportunity in the first instance to

consider their fitness for promotion in 1959."

Xxx xxx xxxx

9. In place of the order quoted hereinabove we substitute an order in the

following terms viz.:

"The Selection Committee shall reconsider the impugned select list

prepared in 1983 as if it was deciding the matter on the date of the selection

on the footing that the adverse remarks made against Respondent 1 which

were subsequently set aside did not exist in the records and consider the

question as to whether he would have been appointed or Respondent 11 Shri

Sardar Pradeep Kar would have been appointed on the basis of the

categorization to which each of them was entitled having regard to the C.C.

Rolls (ignoring the adverse remarks against Respondent 1 which were

subsequently quashed) and pass appropriate orders in the light of the decision

taken on this point. If Respondent 1's claim is accepted upon reconsideration

in the light of the aforesaid exercise, the order of appointment should provide

for his appointment with effect from the date on which he would have been

appointed if he was selected when the original selection was made in 1983 and

he should be given all the benefits. The Selection Committee shall complete its

exercise within two months from the date of this order. There will be no order

regarding costs."

(Emphasis added)

19. Situated thus, it becomes clear that the role of a Review Selection

Committee is exactly the same as the Selection Committee and the

Review Selection Committee shall be treated as Body constituted under
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Regulation 3
for the purpose of carrying out the selection and making

recommendations of the officers of the SFS to be promoted to IFS.

20. In the light of what has been discussed above, let us, now, revert to

Regulation 5(3AA)
, which lays down as to how a Select Committee shall

proceed with the consideration of a case for promotion from SFS to IFS.

Regulation 5(3AA)
reads, "The selection Committee shall classify the eligible

officers as 'Outstanding', 'very good', 'good' or 'Unfit', as the case may be,

on overall relative assessment of their service record."

21. A Selection Committee, be the Committee constituted for the first

time to consider the cases of promotion or as a Committee, constituted for

the purpose of review of a case, or a number of cases for promotion, is, in

the light of
Regulation 5(3AA)
, under statutory obligation to classify

eligible officers into four categories, as indicated above, namely,

'Outstanding', 'very good', 'good' or 'Unfit', as the case may be, on

overall relative assessment of their service records.

22. The term 'service records', we may hasten to point out, has not been

defined in the Promotion Regulations. The UPSC has, therefore, issued

'guidelines', which prescribe what service records would mean and signify.

The UPSC 'guidelines', issued in this regard, and contained in paragraph

2.3, read as follows:

"2.3 In accordance with
Regulation 5(4)
of the Promotion

Regulations, the Selection Committee has to 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
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(i.e., ACRs and the documents kept therein by the competent

authority). For making an overall relative assessment, the

Committee will not depend solely on the grading recorded by

the reporting/reviewing/accepting authority but will make

its independent assessment of the service records of the

eligible officers as per the procedure indicated below."

(Emphasis supplied)

23. Coupled with the above, paragraph 4.1 of the UPSC 'guidelines'

read as under:

"4.1 The Selection Committee will go through the records of

the eligible officers and make their assessment after

deliberating on the quality of the officer as indicated in the

various columns recorded by the Reporting/Reviewing

officer/Accepting Authority in the ACRs for different years

and then finally arrive at the classification to be assigned to

each officer. The Selection Committee would take into account

orders regarding appreciation for the meritorious work done by the

concerned officers. Similarly it would also keep in view orders

awarding penalties or any adverse remarks communicated to the

officer, which, even after due consideration of his representation,

have not been completely expunged."

(Emphasis supplied)

24. From what is embodied in paragraph 2.3 of the UPSC 'guidelines', it

clearly transpires that service records will mean not only the ACR(s) of a

candidate, but also the documents kept/maintained in connection

therewith by the competent authority and that the Committee,

constituted under
Regulation 3
, will not, in order to make overall relative

assessment, depend solely on the grading recorded by the reporting or
Page 19

the reviewing authority, but will make an independent assessment of the

service records of the eligible officers as per the procedure indicated by the

UPSC 'guidelines'.

25. In terms of the UPSC 'guidelines', the Selection Committee, or the

Review Selection Committee, as the case may be, shall go through the

service records of each of the eligible officer with special reference to the

performance of the officers during the last 5 years immediately preceding

the year for which the select list is required to be prepared, and, upon

deliberations, make its own assessment of the candidate and record, in

the assessment sheet, the gradings, which it considers, in the light of

Regulation 5(3AA)
, as appropriate.

26. The UPSC's 'guidelines' will clearly indicate that the service records

of each of the officers would have to be considered by the Selection

Committee with, of course special reference to the performance of the

officer during the last 5 years, immediately preceding the year for which

the select list is required to be prepared, and deliberate on the quality of

the officers and finally arrive at a classification to be assigned to each

officer in order to ensure objectivity for the purpose of evaluation and

assign accordingly any of the four gradings mentioned in
Regulation

5(3AA)
, namely, 'Outstanding', 'very good', 'good' or 'Unfit'.

27. 'Deliberation', according to Oxford Advanced Learner's Dictionary,

6th Edition, means, 'the process of carefully considering' or 'discussing'.

Chambers Twentieth Century Dictionary, 1979 Edition, defines
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'deliberation' as 'act of deliberating, mature reflection'. According to

Webster's Comprehensive Dictionary, Encyclopedic Edition, 'deliberation'

means, 'thoughtfulness and care in deciding or acting'.

28. In the light of what the word 'deliberation' means and convey, it

clearly follows, as rightly contended by Mr. Nath, learned counsel, that in

order to satisfy the test of 'overall assessment', there must be a 'careful

consideration' or careful discussion' on the quality of the officers concerned

with regard the various attributes recorded in their respective ACR(s)

and, as such, deliberation or discussion must precede the assigning of

grading by the Selection Committee.

29. It is the admitted case of the UPSC that the petitioner was

categorized as 'good' on the basis of overall relative assessment of his

performance, as reflected under various columns of his ACR(s), the

ACR(s) being for the period from 2002 to 2003 and 30.09.2004 to

31.03.2005 and, on the basis of the assessment of the petitioner's ACR(s)

for the said period of barely 1 ½ years, the petitioner was not

recommended for promotion.

30. Apart from the fact that the above averments of the UPSC, made in

its affidavit, has not been disputed or traversed by any of the other

respondents, including respondent No. 4, who is hereinafter referred to

as the 'private respondent', the minutes of the meeting of the Review

Selection Committee, constituted under
Regulation 3
, to review the select

list of 2008 and consider, amongst others, the cases of the petitioner and
Page 21

the private respondent is, in this regard, of great relevance. Para 3.1, which

contains the minutes of the meeting of the Review Selection Committee,

being extremely important, is reproduced below:

"3.1 The Committee were further informed that the Government

of Assam have, in compliance with separate orders of the Hon'ble

Tribunal and also based on their representations, forwarded the

upgraded ACRs of

(i) Shri Arup Kumar Das for the year 2002-03 from 'Average'

to 'good' and for the period from 30.09.2004 to 31.03.2005

from 'Average' to 'good'.

(ii) Shri R C Goswami for the period 2002-03, 2003-04, 2004-

05, 2005-06 and 2006-07 from 'good' to 'very good'.

(iii) Shri Amrit Kumar Das for the period from 14.11.2007 to

12.03.2008 from 'good' to 'very good'."

31. Close on the heels of what paragraph 3.1 of the minutes of the

meeting of the Review Selection Committee, reproduced above, reflects,

paragraph 5.1 and 5.2, which relate to the present petitioner, and

paragraph 6.1 and 6.2, which relate to the private respondent, being

relevant for correct appreciation of the manner in which the Review

Selection Committee has dealt with the matter, are also reproduced

below:

"Shri Arup Kumar Das

5.1 The Review Committee first considered the case of Sh. Arup

Kumar Das. The Review Committee noted that the original Selection

committee has graded Sh. Arup Kumar Das as 'good' on an over-all

relative assessment of his service records.

Page 22

5.2 The Review Committee examined the records of Sh. Arup

Kumar Das upto the year 2006-07 for the Select list of 2008 as the crucial

date for reckoning the eligibility of officers is 01.01.2008. The Review

Committee took into consideration the upgraded ACRs of Sh. Arup

Kumar Das for the period mentioned in para 3.1 (i) above. On an overall

assessment of his performance as reflected under various columns of the

upgraded ACRs, the Review Committee graded Shri Arup Kumar Das as

'good'. On the basis of this assessment, the Review Committee did not

recommend any change in the Select list of 2008 prepared on 08.12.2009

in respect of Sh. Arup Kumar Das.

Shri R. C. Goswami

6.1 The Review Committee next considered the case of Sh. R. C.

Goswami. The Review Committee noted that the original Selection

Committee has graded Sh. R. C. Goswami as "Good" on an over-all

relative assessment of his service records.

6.2 The Review Committee examined the records of Sh. R. C.

Goswami upto the year 2006-07 for the Select list of 2008 as the crucial

date for reckoning the eligibility of officers is 01.01.2008. The Review

Committee took into consideration the upgraded ACRs of Sh. R. C.

Goswami for the period mentioned in para 3.1 (ii) above. On an overall

assessment of his performance reflected under various columns of the

upgraded ACRs, the Review Committee graded Shri R. C. Goswami as

"Very Good". On the basis of this assessment, the Review Committee

recommended his name for inclusion in the Select list of 2008 for

promotion to the IFS of Assam Meghalaya Joint Cadre (Assam segment)

and placed his name at Sl. No. 1A of the List prepared on 08.12.2009."

32. If the contents of paragraphs 5.1 and 5.2, which relate to the service

records of the present petitioner, vis-à-vis paragraph 6.1 and 6.2, which

relate to the service records of the private respondent, are considered
Page 23

together in the light of what stands recorded in paragraph 3.1 (which we

have already quoted above), it leaves no room for doubt that that, so far

as the petitioner was concerned, what the Review Selection Committee

had considered was merely his upgraded ACR(s) for the period 2002-

2003 and for the period from 30.09.2004 to 31.03.2005, i.e., for the period

of 1 ½ years, whereby the downgrading of the petitioner's ACR from

'good' to 'Average' was upgraded and restored to 'good' from 'Average'.

As against this, the ACR(s) of the private respondent was considered for

the whole period of 5 years, namely, for the period from 2002 to 2003,

2003 to 2004, 2004 to 2005, 2005 to 2006 and 2006 to 2007 and, on the basis

of all these five years of ACRs, he (private respondent) was graded 'very

good' from 'good'.

33. While, thus, the private respondent's ACRs of all the 5 years,

immediately preceding the year of selection, had been considered, the

petitioner's ACR of only for the period of 1 ½ years, as indicated above,

had been considered by the Review Selection Committee.

34. Situated thus, it is clear that the Review Selection Committee

committed two errors, namely, (i) it omitted to notice the fact that it was

under legal obligation to consider the ACRs of the petitioner as well as of

the private respondent for the entire period of 5 years, including that part

or portion of 5 years, where any change/changes, in the grading,

was/were recorded in the ACRs and (ii) the Review Selection Committee

completely ignored the fact that apart from upgradation of the ACRs of
Page 24

the petitioner, for the said period of 1 ½ years (i.e., for the period from

2002 to 2003 and for the period from 30.09.2004 to 31.03.2005), the

petitioner's ACRs, for the period from 01.04.2004 to 29.04.2004 and

18.08.2005 to 05.01.2006, had been subsequently upgraded, as already

indicated above, by order, dated 16.09.2010, inasmuch as the performance

of the petitioner, for the period from 01.04.2004 to 29.09.2004 and also for

the period from 18.08.2005 to 05.01.2006 (which had gone unappraised),

came to be recorded, pursuant to the order, dated 16.09.2010, passed by

the Commissioner and Secretary, Environment and Forest, Government

of Assam, and the petitioner was, pursuant to the order, dated 16.09.2010,

assigned the grading 'very good' for the period from 01.04.2004 to

29.09.2004 and he (petitioner) was graded 'Outstanding' for the period

from 18.08.2005 to 05.01.2006.

35. To put it a little differently, the Review Selection Committee

considered, unlike the case of the private respondent, the petitioner's

upgraded ACRs for the brief period of 1 ½ years (i.e., from 2002 to 2003

and 30.09.2004 to 31.03.2005), and did not consider the period, which had,

initially, been left unappraised and was, subsequently, assigned the

grading of 'very good' and 'Outstanding' pursuant to the order, dated

16.09.2010, aforementioned.

36. In short, the consideration of the petitioner's case by the Review

Selection Committee suffers from infraction of
Regulation 5(3AA)
of the

Promotion Regulations inasmuch as the Review Selection Committee has
Page 25

not considered the entire service records of the petitioner anew for the

requisite period of 5 years immediately preceding the year of selection;

more so, when the Review Selection Committee has, it is obvious, not

taken into account at all the entries in the ACR(s) of the petitioner for the

earlier unappraised period from 01.04.2004 to 29.09.2004 and 18.08.2005

to 05.01.2006, and, thus, the consideration of the petitioner's case by the

Review Selection Committee must be held to be in violation of the

mandates of the
Regulation 5(3AA)
and cannot, therefore, be sustained.

37. To put it a little differently, the Review Selection Committee's

appraisal of the case of the petitioner suffers from omission to consider

the petitioner's service records for the requisite period of 5 years in its

entirety inasmuch as the Review Selection Committee has considered

only the petitioner's upgraded ACRs for the year 2002-2003 and for the

period from 30.09.2004 to 31.03.2005, but the Review Selection Committee

has omitted to consider the petitioner's subsequently appraised service

records for the period from 01.04.2004 to 29.09.2004 and for the period

from 18.08.2005 to 05.01.2006.

38. The learned Tribunal, therefore, fell in serious error, in the case at

hand, in taking the view that the assessment of the petitioner's service

record was properly done by the Review Selection Committee; whereas,

it is glaringly noticeable that the Review Selection Committee did not do

what it was assigned to do or obliged to do in terms of the Promotion
Page 26

Regulations and in the light of the 'guidelines', issued, in this regard, by

the UPSC.

39. Yet another ground on which the petitioner has impugned the

recommendations of the private respondent by the Review Selection

Committee and non-recommendation of his case for promotion by the

said Committee, in the light of the decision reached by the learned

Tribunal, is that during the period of 5 years immediately preceding the

year of selection, the appropriate authority had not recorded the various

entries in the ACRs of the petitioner. A chart, showing the authorities,

who had acted in the capacity of the Reporting, Reviewing and the

Accepting authorities, in the ACRs of the petitioner from the year 2002 to

2007, as embodied in the writ petition, is reproduced below:

YEAR REPORTING REVIEWING ACCEPTING
AUTHORITY AUTHORITY AUTHORITY

2002-03 CCF PCCF PRINCIPAL
SECRETARY
1.4.03 to --- COMMISSIONER
30.7.03 & SECRETARY
23.9.03 to CF CCF ---
31.3.04
1.4.04 to CF CCF ---
30.9.04
30.9.04 to CF CCF PCCF
31.3.05
1.4.05 to CCF PCCF COMMISSIONER
17.8.05 & SECRETARY
18.8.05 to CF CCF ---
31.3.06
2006-07 CF CCF PCCF
Page 27

40. A cautious reading of what have been reproduced above would

show that the ACRs of the petitioner for the period 2002-2003 was written

by the Chief Conservator of Forests, reviewed by the Principal Chief

Conservator of Forests and accepted by the Principal Secretary,

Department of Environment and Forests; whereas, the ACR, pertaining to

the period 23.09.2003 to 31.03.2004, was written by Conservator of

Forests, reviewed by Chief Conservator of Forests and accepted by the

Commissioner & Secretary, and with regard to the petitioner's ACR for

the period from 01.04.2005 to 17.08.2005, it was again the Chief

Conservator of Forests, who had acted as the Reporting authority, the

Reviewing and the Accepting authorities being Principal Chief

Conservator of Forests and the Commissioner and Secretary, Department

of Environment and Forests. However, for the period from 30.09.2004 to

31.03.2005, the Reporting authority was, once again, the Conservator of

Forests, the Reviewing authority was the Chief Conservator of Forests

and the Accepting authority was the Principal Chief Conservator of

Forests.

41. The question, therefore, which falls for consideration, is: Whether,

in the petitioner's case, the Conservator of Forests could have acted as the

Reporting authority, or it was the Chief Conservator of Forest, who ought

to have been the Reporting authority?

42. While considering the question, posed above, we may refer to Rule

2(f) of the Assam Services (Confidential Rolls) Rules, 1990 (hereinafter
Page 28

referred to as the '1990 Rules'), which defines 'Reporting authority' as the

authority, who was, during the period for which the confidential report is

written, immediate superior to the employee and such other authority as

may be specifically empowered, in this behalf, by the Government.

Similarly, 'Reviewing authority' is defined by Rule 2(g) of the 1990 Rules to

mean the authority, who was, during the period for which the

confidential report is written, immediate superior to the Reporting

authority and such other authority as may be specifically empowered, in

this behalf, by the Government. Rule 2(a) of the 1990 Rules defines

'Accepting authority' as the authority, who was, during the period for

which the confidential report is written, immediate superior to the

Reviewing authority and such other authority as may be specifically

empowered, in this behalf, by the Government.

43. The petitioner, as has been pointed out, is presently serving as

Divisional Forest Officer (in short, 'DFO') and he, therefore, belongs to

the cadre of Deputy Conservator of Forest (in short, 'DCF'). The

immediate superior of a DCF is the Conservator of Forests (in short, 'CF')

and, as such, only CF can initiate confidential reports of a DCF. Similarly,

the immediate superior of CF is the Chief Conservator of Forest (in short,

'CCF') and the immediate superior of CCF is the Principal Chief

Conservator of Forest (in short, 'PCCF'). Accordingly, only CCF and

PCCF can act as the Reviewing and Accepting authority, respectively, in

respect of a DCF.

Page 29

44. However, in the case at hand, the ACR(s) of the petitioner were

reported/reviewed and accepted by authorities other than the authorities,

who were empowered and authorized by the Rules to do so.

Consequently, the ACR(s), prepared by such authorities, as indicated

hereinbefore, can not, rightly contends Mr. Nath, learned counsel for the

petitioner, form basis for making assessment of the merit of the

petitioner.

45. In support of his contention that the ACR(s), in respect of a DFO can

only be written by the CF, reviewed and accepted by CCF and PCCF,

respectively, Mr. Nath has also placed reliance on the case of T N

Godavarman vs. Union of India, reported in (2007) 15 SCC 273. The

relevant observations, made by the Supreme Court, in T N Godavarman

(supra), read as follows:

"22. For writing of the confidential reports, the Central

Government has, under
Section 3
of the All India Services Act,

1951, framed All India Services (Confidential Rolls) Rules, 1970.

According to Rule 2(e), the "reporting authority" is defined as

follows:

2. (e) 'reporting authority' means the authority who was, during

the period for which the confidential report is written, immediately

superior to the member of the service and such other authority as

may be specifically empowered in this behalf by the Government;"

23. The "reviewing authority" is defined in Rule 2(f) as follows:

2. (f) 'reviewing authority' means the authority who was, during

the period for which the confidential report is written, immediately
Page 30

superior to the reporting authority and such other authority as may

be specifically empowered in this behalf by the Government;"

24. It seems that Rule 2(e) had been interpreted by the State

to mean that the confidential report of an officer could be written

by a person who is superior to him and also by such other officer

who may be specified in this behalf. In view of the latter portion of

the said Rule 2(e), the State Government has authorised officers of

service other than of the Forest Department to write the

confidential reports. In this manner, in effect, the administrative

control of officers belonging to the Forest Department is not within

the Department itself.

25. The aforesaid Rule 2(e) came up for consideration before this

Court in
State of Haryana v. P.C. Wadhwa
. While interpreting the

said Rule 2(e), this Court at p. 1035 observed as follows: (SCC pp.

606-07, para 5)

5. In this connection, it may be pointed out that it is not disputed

that the conjunction 'and' occurring in clauses (e), (f) and (a)

should be read as 'or'. Under clause (e), the 'reporting authority'

may be either immediately superior to the member of the service or

such other authority as may be specifically empowered in this

behalf by the Government. The expression 'immediately superior'

obviously indicates that the reporting authority should be the

immediate superior officer in the same service to which the member

of the service belongs. The position is the same as in the cases of

'reviewing authority' and 'accepting authority'. So, under the first

part of clause (e), the reporting authority of the respondent could be

a person who is immediately superior to him in the police service."

26. It appears to us, and which is logical, that up to the officer of

the rank of Additional Principal Chief Conservator of

Forests the reporting authority has to be the immediately

superior officer within the Forest Department. For example,
Page 31

for the Assistant Conservator of Forests, the reporting authority

can only be the Divisional Forest Officer and for him the reporting

authority would be the Conservator of Forests for whom the

reporting authority has to be the Chief Conservator of Forests and

his reporting authority would be Additional Principal Chief

Conservator of Forests and lastly his reporting authority would be

the Principal Chief Conservator of Forests. Likewise the reviewing

authority would also be the person within the same Department. It

is only in case of the Principal Chief Conservator of Forests

that the reporting authority will be a person other than the

one belonging to the service because there is no one superior

to the Principal Chief Conservator of Forests within the

service. As far as he is concerned, the reporting authority would be

a person who is familiar with the work of Principal Chief

Conservator of Forests and that will be the person to whom he

reports and who is superior to him in rank and hierarchy."

(Emphasis is added)

46. Mr. S. Sharma, learned counsel for the private respondent, has

contended that the petitioner's ACR(s) for the period 2003-2004 was

reviewed by PCCF and accepted by the Principal Secretary, because

during the relevant period, the petitioner was in the Wild Life Wing of

the Department; whereas the ACR, pertaining to the period from

30.09.2004 to 31.03.2005, was reviewed by CCF and accepted by PCCF,

because during the period, in question, the petitioner had been working

in the Research and Education Wing of the Department.

47. Controverting the above submissions, made on behalf of the private

respondent, it has been submitted, on behalf of the petitioner, that the
Page 32

various wings, such as, Wild Life, Territorial, Social Forestry, Research

and Education, etc., are only wings of the Forest Department and the

immediate superior of a DCF shall always be CF irrespective of any wing

of the Department. A superior officer, in the context of a DCF, does not

differ from wing to wing and, hence, the whole contention of the private

respondent, raised, in this regard, has no foundation, erroneous and is

liable to be rejected.

48. It has been further contended, on behalf of the petitioner, that the

fact, that the contention of the private respondent has no foundation, falls

flat in view of the fact that the ACR of the petitioner, for the period

01.04.2005 to 17.08.2005 (i.e., the period immediately succeeding

30.09.2004 - 31.03.2005), was reviewed by the PCCF and accepted by the

Commissioner and Secretary in spite of the fact that during the said

period, the petitioner had been still working in Research and Education

wing of the Department concerned.

49. In the light of the 1990 Rules, the petitioner's ACR(s) were clearly

not written by the appropriate authorities acting as Reporting authority,

Reviewing authority and Accepting authority. When the petitioner's

ACR(s) have been written by the authorities other than competent

authorities, the assessment of the merit of the petitioner, the entries and

the gradings, which had been given by the authorities not competent to

act as the Reporting, Reviewing and Accepting authorities, were bad in

law and ought not to have been considered, while considering the
Page 33

petitioner's case for promotion. These aspects of the case appear to have

escaped not only the notice of the Review Selection Committee, but also

of the learned Tribunal. On the basis of the ACR(s) written by the

authorities, who were not competent to writ the petitioner's ACR(s),

question of consideration of a valid selection, for the purpose of

promotion, from SFS to IFS would not arise.

50. It is further contended, on behalf of the petitioner, that the ACR(s)

of the petitioner were not communicated to him, at any point of time by

the Committee, which was contrary to the law
laid down by
the Supreme

Court in
Dev Dutt vs. Union of India
, reported in (2008) 8 SCC 725.

Relying upon the case of
Dev Dutt
(supra), Mr. Nath, learned counsel for

the petitioner, correctly submits that, in terms of the decision, rendered in

Dev Dutt
's case (supra), all ACR(s) of the employees need to be

communicated to the employee concerned, within a reasonable period of

time, whether there is benchmark or not and non-communication of the

same is arbitrary and violative of
Article 14
of the Constitution of India.

The relevant paragraphs of the decision of the Supreme Court, in
Dev

Dutt
's case (supra), read as under:

"12. It has been held in
Maneka Gandhi v. Union of India
that

arbitrariness violates
Article 14
of the Constitution. In our opinion, the

non-communication of an entry in the ACR of a public servant is

arbitrary because it deprives the employee concerned from making a

representation against it and praying for its upgradation. In our opinion,

every entry in the annual confidential report of every employee under the

State, whether he is in civil, judicial, police or other service (except the
Page 34

military) must be communicated to him, so as to enable him to make a

representation against it, because non-communication deprives the

employee of the opportunity of making a representation against it which

may affect his chances of being promoted (or get some other benefits).

Moreover, the object of writing the confidential report and making entries

in them is to give an opportunity to a public servant to improve his

performance, vide
State of U.P. v. Yamuna Shanker Misra
. Hence such

non-communication is, in our opinion, arbitrary and hence violative of

Article 14
of the Constitution.

13. In our opinion, every entry (and not merely a poor or adverse entry)

relating to an employee under the State or an instrumentality of the State,

whether in civil, judicial, police or other service (except the military) must

be communicated to him, within a reasonable period, and it makes no

difference whether there is a benchmark or not. Even if there is no

benchmark, non-communication of an entry may adversely affect the

employee's chances of promotion (or getting some other benefit), because

when comparative merit is being considered for promotion (or some other

benefit) a person having a "good" or "average" or "fair" entry certainly

has less chances of being selected than a person having a "very good" or

"outstanding" entry.

17. In our opinion, every entry in the ACR of a public servant must be

communicated to him within a reasonable period, whether it is a poor, fair,

average, good or very good entry. This is because non-communication of

such an entry may adversely affect the employee in two ways: (1) had the

entry been communicated to him he would know about the assessment of

his work and conduct by his superiors, which would enable him to

improve his work in future; (2) he would have an opportunity of making a

representation against the entry if he feels it is unjustified, and pray for its

upgradation. Hence, non-communication of an entry is arbitrary, and it

has been held by the Constitution Bench decision of this Court in
Maneka
Page 35

Gandhi v. Union of India
that arbitrariness violates
Article 14
of the

Constitution.

18. Thus, it is not only when there is a benchmark but in all cases that an

entry (whether it is poor, fair, average, good or very good) must be

communicated to a public servant, otherwise there is violation of the

principle of fairness, which is the soul of natural justice. Even an

outstanding entry should be communicated since that would boost the

morale of the employee and make him work harder.

36. In the present case, we are developing the principles of natural justice

by holding that fairness and transparency in public administration

requires that all entries (whether poor, fair, average, good or very good) in

the annual confidential report of a public servant, whether in civil,

judicial, police or any other State service (except the military), must be

communicated to him within a reasonable period so that he can make a

representation for its upgradation. This in our opinion is the correct legal

position even though there may be no rule/G.O. requiring communication

of the entry, or even if there is a rule/G.O. prohibiting it, because the

principle of non-arbitrariness in State action as envisaged by
Article 14
of

the Constitution in our opinion requires such communication.
Article 14

will override all rules or government orders.

37. We further hold that when the entry is communicated to him the

public servant should have a right to make a representation against the

entry to the authority concerned, and the authority concerned must decide

the representation in a fair manner and within a reasonable period. We

also hold that the representation must be decided by an authority higher

than the one who gave the entry, otherwise the likelihood is that the

representation will be summarily rejected without adequate consideration

as it would be an appeal from Caesar to Caesar. All this would be

conducive to fairness and transparency in public administration, and

would result in fairness to public servants. The State must be a model
Page 36

employer, and must act fairly towards its employees. Only then would

good governance be possible.

41. In our opinion, non-communication of entries in the annual

confidential report of a public servant, whether he is in civil,

judicial, police or any other service (other than the military),

certainly has civil consequences because it may affect his chances for

promotion or get other benefits (as already discussed above). Hence, such

non-communication would be arbitrary, and as such violative of

Article 14
of the Constitution.

(Emphasis is added)

51. A bare reading of the observations, made by the Supreme Court in

the above quoted paragraphs, in
Dev Dutt
's case (supra), makes it clear

that the ACR(s), which have not been communicated to a person

concerned, can not be taken into consideration by any Selection

Committee, while examining his/her case for promotion.

However, the

Supreme Court has
laid down, in

Dev Dutt
's case (supra), that in the

event of non-communication of the ACR(s) to the employee concerned

for any reason, such ACR(s) are to be communicated to the employee

concerned at the stage of consideration of his/her case for promotion

enabling the employee concerned to make representation against the

entry, which needs to be fairly considered following which his/her case

needs to be reconsidered by the Review Selection Committee.

The ratio
,

laid down by
the Supreme Court, in
Dev Dutt
's case (supra), squarely

applies to the case at hand inasmuch as the adverse entries, in the ACR(s)

of the petitioner, were not communicated to the petitioner before
Page 37

consideration of his case, for promotion, by the Review Selection

Committee.

52. From the decision, in
Dev Dutt
's case (supra), it becomes

abundantly clear that making of any effective representation by an

employee requires communication of the entries, made in his/her ACR(s),

which would include not only the gradings, assigned to the employee, but

also the remarks made on various components of performance of the

employee concerned and consideration of the grading, assigned to him,

must precede submission of any representation, if made, by the employee

concerned so as to enable the employee concerned make effective

representation.

53. Though the learned Tribunal has proceeded on the premises that

the petitioner had been communicated the entries of his ACR(s), the

learned Tribunal, we find, has failed to notice that the entries, in some of

the ACR(s), had been obtained by the petitioner on the basis of the

application, made by the petitioner under the
Right to Information Act,
, and the same had not been communicated to the petitioner by the

authorities concerned. The petitioner's case, therefore, suffers from, in

fact, infraction of the law laid down, and the directions given, in
Dev

Dutt
's case (supra).

54. Clearly, therefore, when the petitioner made his representation, on

19.07.2010, seeking review of his ACR(s), he had no idea as to what had

been made in his ACR(s) and this fact is clearly discernible if one cares to
Page 38

read the petitioner's representation. The relevant portion of the

petitioner's representation, dated 19.07.2010, read as follows:

"To,

The Commissioner and Secretary to the Govt. of Assam,
Environment and Forest Department, Dispur, Guwahati-6.

Sub Thorough Review of my ACR's for the Financial years 2000-2001,
2001-2002, 2002-2003, 2003-2004 and 2005-2006.

Ref. My earlier letter No. AKD/1/Confidential/7 dtd. 15/07/2010.

Respected Sir,

In continuation to my earlier letter No.
referred above
with

reference to the above subject I have honour to request you kindly to

review my ACR's for the period (2000-2001, 2001-2002, 2002-2003,

2003-2004 and 2005-2006) as I suspect that during the years the ACR's

written by respective Recording/Reviewing officers sent to UPSC and

MOEF was initiated in such a way that I should not be inducted into

Indian Forest Service as the grades given was more or less as an adverse

ACR. Because these years were crucial for the select list prepared by

UPSC for the years 2005, 2006, 2007 and got myself deprived in every

selection.

As
referred above
, since I did not have any access to the

confidential Rolls prepared by the authorities I had presumed that

everything recorded was with higher grades the good assessment,

as I have neither been informed verbally or nor intimated in

writing regarding any poor performance in any form for the years

stated above also substantial evidence if there was any to improve

my skills for getting better grades which was a systematic way of

spoiling my career. But now I have realized that the ACRs prepared

during the years
referred above
were written in casual and superficial and

without proper weightage in upgraded form which led to debar me from

selection to the Indian Forest Service.

Page 39

Therefore, I request you humbly to get my ACRs properly

Reviewed and Rectified so that I may be considered to be included to the

IFS selection and get natural justice from your end as I have still faith and

confidence in your abilities so that I may continue with a better zeal in the

remaining part of my service career.

Yours faithfully,

s/d--

(A. K. Das), D.F.O,
Govt. T.T.S. Plant Division
Makum, Tinsukia"

(Emphasis is added)

55. As the communication of the entries in the ACR(s) is, in the light of

the decision, in
Dev Dutt
's case (supra), sine qua non in order to enable

the employee concerned make effective representation, it is clear that the

petitioner did not have any idea, on the date of making of the

representation, i.e., 19.07.2010, about the fact that the entries, made in his

ACR(s), including the gradings awarded to him, were not adverse in

nature inasmuch as any grading, assigned to an officer, in the light of

Regulation 5(3AA)
, would be treated, in the light of the decision, in
Dev

Dutt
's case (supra), as an adverse entry. In fact, suspecting that his

ACR(s) had not been properly recorded, the petitioner had asked for the

review thereof. As the entries had not been communicated to the

petitioner before the petitioner had made the representation, the learned

Tribunal ought to have held that the petitioner was denied the right to

make effective representation against the various entries, made in his

ACR(s), during the past 5 years, in question, and the petitioner was,

therefore, seriously prejudiced.

Page 40

56. We consider it incumbent upon us to point out, with regard to the

above, that the personal hearing, which had been afforded to the

petitioner on his representation, dated 19.07.2010, aforementioned, did

not cure the incurable defect of non-communication of the entries in the

ACR(s) to the petitioner in terms of the decision in
Dev Dutt
's case

(supra). It would be idle for the authority concerned to hear an employee

if he is not communicated the entries made in his ACR(s).

57.
In support of his submission that the decision, in
Dev Dutt
's case

(supra), covers the case of the petitioner, Mr. N. Nath, learned counsel for

the petitioner, contends that a judicial pronouncement, on an issue of

law, is always retrospective in operation unless the decision itself makes

the operation of the law, so pronounced, prospective. In fact, prospective

laying down of a law is a device innovated by the Supreme Court to

avoid reopening of settled issues and multiplicity of proceedings.

In
Dev

Dutt
's case (supra), the Supreme Court, in its own wisdom and

discretion, did not make its operation prospective and, accordingly, the

ratio
,
laid down in

Dev Dutt
's case (supra), could only be applied

retrospectively.

Mr. Nath, learned counsel, further contends, and rightly

so, that even assuming that the law
,
laid down in

Dev Dutt
's case

(supra), is prospective, the same would still apply to the present case

inasmuch as
Dev Dutt
's case (supra) was decided on 12th May, 2008, and

the Selection Committee, in the case at hand, met on 08.12.2009 and the

Review Selection Committee met on 09.12.2011.

Page 41

58. Controverting the finding of the learned Tribunal, that the ACR(s)

had been duly communicated to the petitioner and that on the basis of

such communicated ACR(s), the petitioner had filed representation,

dated 19.07.2010, Mr. Nath, learned counsel for the petitioner, has also

pointed out, with great justification, that this finding of the learned

Tribunal is wholly erroneous inasmuch as the petitioner's representation

itself shows that he was not privy to his ACR(s) at the time of filing of his

representation and that the finding of the learned Tribunal seems to have

been influenced by the fact that the petitioner had annexed a few ACR(s)

to his representation in order to substantiate his claims, but the learned

Tribunal ought to have taken note of the fact that the petitioner had

obtained the copies of his ACR(s) under the
Right To Information Act,
. Further-more, the fact that the petitioner came to know about the

downgrading of the entry, in his ACR(s), from 'good' to 'Average' for the

period 2002-2003 in April, 2010, only is, in itself, a testimony of the fact

that the ACR(s) of the petitioner had never been communicated to him.

59. While considering the rival submissions with regard to the non-

communication of the entries in the ACR(s) to the petitioner, it is

noteworthy that the respondents/authorities concerned did neither file

any written statement before the learned Tribunal nor have they filed any

affidavit, before this Court, controverting the contentions of the petitioner

regarding non-communication of the entries in his ACR(s) to him.

Page 42

60. We deem it apposite to point out, at this juncture, that the scope of

judicial review is limited in matters of selection. However, it is

incumbent and obligatory, on the Courts and the Tribunals, to interfere,

when the process of assessment and recommendation is vitiated by mala

fide, or bias, or violation of the statutory rules and regulations, or when

the process of assessment suffers from arbitrariness or from error

apparent on the face of the record. Reference may be made, in this

regard, to the case of M V Thimmaiah vs. UPSC & Ors, reported in

(2008) 2 SCC 119, wherein the Supreme Court held as under:

"21. Now, comes the question with regard to the selection of the

candidates. Normally, the recommendations of the Selection Committee

cannot be challenged except on the ground of mala fides or serious violation of

the statutory rules. The courts cannot sit as an Appellate Authority to

examine the recommendations of the Selection Committee like the

court of appeal. This discretion has been given to the Selection

Committee only and courts rarely sit as a court of appeal to examine

the selection of the candidates nor is the business of the court to examine each

candidate and record its opinion."

(Emphasis is added)

61. We may also refer to the case of
Union of India vs. A K Narula
,

reported in (2007) 11 SCC 10, wherein the Supreme Court held, in

paragraph 15, as under:

"15. The 'guidelines' give a certain amount of play in the joints to DPC

by providing that it need not be guided by the overall grading recorded in

CRs, but may make its own assessment on the basis of the entries in CRs.

DPC is required to make an overall assessment of the performance of each

candidate separately, but by adopting the same standards, yardsticks and
Page 43

norms. It is only when the process of assessment is vitiated either

on the ground of bias, mala fides or arbitrariness, that the

selection calls for interference. Where DPC has proceeded in a fair,

impartial and reasonable manner, by applying the same yardstick and

norms to all candidates and there is no arbitrariness in the process of

assessment by DPC, the court will not interfere (vide SBI v. Mohd.

Mynuddin, UPSC v. Hiranyalal Dev and
Badrinath v. Govt. of T.N.
).

The Review DPC reconsidered the matter and has given detailed reasons

as to why the case of the respondent was not similar to that of R.S. Virk. If

in those circumstances, the Review DPC decided not to change the

grading of the respondent for the period 1-4-1987 to 31-3-1988 from

"good" to "very good", the overall grading of the respondent continued to

remain as "good". There was no question of moving him from the block of

officers with the overall rating of "good" to the block of officers with the

overall rating of "very good" and promoting him with reference to DPC

dated 13-6-1990. In the absence of any allegation of mala fide or bias

against DPC and in the absence of any arbitrariness in the manner in

which assessment has been made, the High Court was not justified in

directing that the benefit of upgrading be given to the respondent, as was

done in the case of R.S. Virk."

(Emphasis is added)

62. When considered as a whole, what emerges from the above

discussion is that fairness is an essential ingredient of all administrative

actions including a selection process. We may refer, in this regard, to the

case of National Institute of Mental Health and Neuro Sciences -vs- Dr.

K. Kalyana Raman and Others, reported in (1992) Supp (2) SCC 481,

wherein it has been held that the function, performed by a Selection

Committee, is administrative in nature.

Page 44

63. In the present case, therefore, it is imperative that the review

selection be fair and fairness demands that the Review Selection

Committee follows the procedure in letter and spirit as
laid down in

Regulation 5(3AA)
of the Promotion Regulations. Strangely enough,

however, the Review Selection Committee acted, in the present case,

mechanically without even realizing that it was not considering, contrary

to the requirements of
Regulation 5 (3AA)
, the petitioner's ACRs of 5

years immediately preceding the year of selection. The Selection

Committee also failed to note that the petitioner's ACR(s) had been

written substantially by persons, who were not competent to act as

Reporting, Reviewing and/or Accepting authorities.
The Review

Selection Committee further did not question and/or try to find out if the

adverse entries, in the ACR(s) of the petitioner, (in the light of the

decision, in
Dev Dutt
's case (supra), which, on the date of consideration

of the petitioner's case by the Review Selection Committee, held the

field), had been communicated to the petitioner or not.

Even the learned

Tribunal has completely failed to note that the petitioner had not been

communicated, contrary to the decision, in
Dev Dutt
's case (supra), the

entries in the ACR(s) of the requisite period of 5 years in order to enable

him to make effective representation against the entries, which were

injurious to the consideration of the petitioner's case for promotion.

64. Because of what have been discussed and pointed out above, we

have no hesitation in holding that the impugned review, which the
Page 45

Review Selection Committee had conducted, was contrary to law and all

the issues, raised by the petitioner and discussed by us above, need to be

addressed by the State respondents, in general, and the UPSC, in

particular.

65. Before, however, we close the discussion on the case, which the

petitioner has set up, and issue necessary direction(s), we need to point

out that in the light of the amendments, which the Indian Forest Service

(Appointment by Promotion) Regulations, 1966, (which we have been

referring to as the Promotion Regulations), underwent by Notification,

dated 20.04.1966, the 'guidelines', which have been issued by the UPSC

and which have been the subject of discussion in this writ petition, need a

review by the UPSC, particularly, with regard to the system of

'interpolation' of the names in the select list after a review takes place.

66. In order to make explicit what have been indicated above, we must

reiterate that the Promotion Regulations provide for appointment of

members of the State Forest Service to the Indian Forest Service by

promotion.
Regulation 5
of the said Regulations provides for preparation

of a list of suitable officers. While
Regulation 5(2)
provides for zone of

consideration and eligibility of the members of the State Forest Service,

Regulation 5
(3-AA) and
Regulation 5(4)
provide for the relative

assessment of merit and preparation of merit wise list respectively.

Regulation 5(3AA)
and
Regulation 5(4)
being relevant, are reproduced

below:

Page 46

"5. Preparation of a list of suitable officers :-

(1) *** *** ***
*** *** ***
(2) *** *** ***
*** *** ***
3(A) *** *** ***
*** *** ***
3(AA) The Selection Committee shall classify the eligible officers

as 'Outstanding', 'good', 'very good' or 'Unfit' , as the case may be, on all
relative assessment of their service records.

(4) The list shall be prepared by including the required number of
names, first from amongst the officers finally classified as
'Outstanding' then from amongst those similarly classified as
'very good' and thereafter from amongst those similarly classified
as 'good' and the order the names inter-se within each category
shall be in the order of their seniority in the State Forest Service.

Provided that the name of an officer so included in the list shall be treated as
provisional if the State Government withholds the integrity certificate in respect
of such an officer or any proceedings, departmental or criminal, are pending
against him or anything adverse against him which renders him unsuitable for
appointment to the service has come to the notice of the State Government.
Provided further that while preparing year-wise select lists for more than one
year pursuant to the second proviso to sub-regulation (1), the officer included
provisionally in any of the select list so prepared, shall be considered for
inclusion in the select list of subsequent year in addition to the normal
consideration zone an din case he is found fit for inclusion in the suitability list
for that year on a provisional basis, such inclusion shall be in addition to the
normal size of the select list determined by the Central Government for such
year.

Explanation I : The proceedings shall be treated as pending only if a
charge-sheet has actually been issued to the officer or filed in a
Court, as the case may be
Explanation II : The adverse thing which came to the notice of the State
Government rendering him unsuitable for appointment to the service shall be
treated as having come to the notice of the State only if the details of the same
have been communicated to the Central Government and the Central
Government is satisfied that the details furnished by the State Government have
a bearing on the suitability of the officer and investigation thereof is essential.

Page 47

(5) Omitted."
(Emphasis added)

67. A careful perusal of the Regulations reveals that
Regulation 5(2)
,

prior to its amendment by Notification No. 11039/2/76 AIS (I)-G, dated

20.04.1976, provided that merit and suitability in all respect with due

regard to seniority shall be the criterion for the selection to the Indian

Forest Service. The identical unamended Regulations of the Indian

Administrative Services (Appointment by Promotion) Regulations, 1955,

as quoted in paragraph 5 of the decision rendered in
Union of India

versus M. L. Kapoor
, reported in (1973) 2 SCC 836, are reproduced

below:

"5. *** *** ***

5. Preparation of a list of suitable officers.--(1) The Committee shall
prepare a list of such members of the State Civil Service as satisfy the
condition specified in
Regulation 4
and as are held by the Committee to be
suitable for promotion to the service. The number of members of the
State Civil Service included in the list shall not be more than twice
the number of substantive vacancies anticipated in the course of
the period of twelve months commencing from the date of the
preparation of the list in the posts available for them under Rule 9 of the
Recruitment Rules or 10 per cent of the senior duty posts borne on the
cadre of the State or group of States whichever is greater:

Provided that, in the year ending on 31st December, 1969, the maximum
limit, imposed by this sub-regulation, may be exceeded to such extent as
may be determined by the Central Government in consultation with the
State Government concerned.

(2) The selection for inclusion in such list shall be based on merit and
suitability in all respects with due regard to seniority.
(3) The names of the officers included in the list shall be arranged in order
of seniority in the State Civil Service:

Page 48

Provided that any junior officer who in the opinion of the
Committee is of exceptional merit and suitability may be assigned
a place in the list higher than that of officers senior to him.

......................................................"

(Emphasis is added)

68. The decision, in
M.L. Kapoor
's case (supra), shows that according

to the un-amended
Regulation 5
of the Indian Administrative Service

(Appointment by Promotion) Regulation, 1955, promotion ought to have

been, ordinarily, in terms of seniority unless any junior officer, in the

opinion of the Selection Committee, constituted by the UPSC, was found

to be of exceptional merit and suitability inasmuch as such a junior

officer, on the basis of his exceptional merit and suitability, could be

placed, rather, ought to have been placed, in the select list, at a position

higher than that of an officer, who might have been senior to the junior

officer concerned.

69. It is pointed out by Mr. D.K. Mishra, learned Amicus Curiae, that

the expression 'merit cum suitability with due regard to seniority', was

considered by a learned Single Judge of this Court in
Ramen Ch. Kalita

Vs. State of Assam
, reported in 2003 (3) GLT 369.

The learned Single

Judge, relying on the decision, rendered in
M.L. Kapoor
(supra),

observed and held, at paragraph 10, as follows:

" ( 10 ) In the light of the above discussions, the parameters applied while

making the impugned selection, do not appear to conform to the principle

of merit and suitability with due regard to seniority as prescribed by the

rules in force. The correct meaning of the expression, "merit and

suitability with due regard to the seniority", having regard to the context
Page 49

of the Rules in force and keeping in mind the earlier Rules holding the

field, would be that though the criteria of merit and suitability with due

regard to seniority is essentially a merit based criterion, seniority cannot

altogether be ignored and has to be considered parallely along

with merit while determining the eligibility of a candidate for his

inclusion in the select list. Though it would not be the duty of the court

to lay down the exact modalities to cover selection by application of said

criteria, it may be apposite to observe that out of the total marks

earmarked for assessment, say out of 100 marks, a particular percentage

can be assigned to merit and the remaining percentage to seniority. The

percentage prescribed for merit must necessarily be higher than the

percentage prescribed for seniority, as this court has already held that the

expression in question convey primarily a merit based assessment. What

marks should be given to seniority can also be worked out by taking into

account each year of completed service and on that basis the necessary

fusion between merit and seniority can be reached. Having reached the

aforesaid conclusion, this court cannot but hold that the parameters

applied in the selection on 23.7. 2002 do not conform to what was

required to be followed by applying the principle of "merit and suitability

with due regard to the seniority". The impugned selection and the

consequential promotion order dated 19. 9. 2002 therefore, will have to be

set aside, which I hereby do."

(Emphasis is added)

70. It is submitted by the learned Amicus Curiae, with great

justification, that
Sarat Kumar Dash v. Biswajit Patnaik
, reported in 1995

Suppl.

(1) SCC 434, was not placed before the learned Single Judge in

Ramen Ch. Kalita
(supra).

In the case of
Sarat Kumar Dash
(supra), the

expression 'merit cum suitability with due regard to seniority' fell for

consideration.

The argument put forward by the counsel for the appellant
Page 50

was accepted by the Supreme Court, in
Sarat Kumar Dash
(supra), that

even in case of merit cum suitability with due regard to seniority, seniority has

no role to play, if the junior is more meritorious.

The relevant portion of

the decision, in
Sarat Kumar Dash
(supra), runs as under:

"5. It is contended by Shri P.P. Rao, the learned Senior Counsel for the

appellants that the Tribunal has committed grievous error in placing

reliance on the decision of this Court in
Union of India v. Mohan Lal

Capoor
. Therein, unamended Rule 5(2) of the statutory rules provides that

in case of supersession of the officer of the police service of the State, the

PSC was required to record reasons. Under those circumstances, this

Court has directed that recording of reasons was necessary. He further

contends that in the judgment itself, this Court held that in case of

"merit-cum-suitability" with due regard to seniority, the principle

of seniority has no role to play and the ratio therein was not

properly understood by the Tribunal. We find force in the contention.

6. It is seen that the Government, in the absence of statutory rules, have

applied, by administrative order, the principle of "merit-cum-suitability

with due regard to seniority". It is settled law that in case of

promotion to the posts of higher cadre, it has always been the

settled criteria applied by the Governments is "merit-cum-

suitability with due regard to seniority" or "merit and ability" but

not 'seniority' or "seniority-cum-suitability". In fact, this question

was considered by PSC, as stated earlier, before its evaluation of

the respective merits. They secured the rules in the comparable

services of the State where the principle of "merit-cum-suitability

with due regard to seniority" is the statutory rule and thereby, the

PSC had accepted the recommendation of the Government to apply the

above rule to adjudge the relative merits of the candidates and in fact they

did so apply.

Page 51

7.
In
Kapoor
case, this Court has stated with regard to the principle thus:

(SCC p. 856, para 37)

"[W]hen
Regulation 5(2)
says that the selection for inclusion in the

list shall be based on merit and suitability in all respects with due

regard to seniority, what it means is that for inclusion in the list,

merit and suitability in all respects should be the governing

consideration and that seniority should play only a secondary role.

It is only when merit and suitability are roughly equal that

seniority will be a determining factor, or if it is not fairly possible

to make an assessment inter se of the merit and suitability of two

eligible candidates and come to a firm conclusion, seniority would

tilt the scale. But, to say, as the High Court has done, that seniority

is the determining factor and that it is only if the senior is found

unfit that the junior can be thought of for inclusion in the list is,

with respect, not a correct reading of
Regulation 5(2)
. I do not

know what the High Court would have said had
Regulation 5(2)

said: "Selection for inclusion in the select list shall be based on

seniority with due regard to merit and suitability". Would it have

said that the interpretation to be put upon the hypothetical sub-

regulation (2) is the same as it put upon the actual sub-regulation?

8. In case of merit-cum-suitability, the seniority should have no

role to play when the candidates were found to be meritorious and

suitable for higher posts. Even a junior most man may steal a

march over his seniors and jump the queue for accelerated

promotion. This principle inculcates dedicated service, and accelerates

ability and encourages merit to improve excellence. The seniority would

have its due place only where the merit and ability are approximately

equal or where it is not possible to assess inter se merit and the suitability

of two equally eligible competing candidates who come very close in the

order of merit and ability. Under those circumstances, the seniority will

play its due role and calls it in aid for consideration. But in case where the
Page 52

relative merit and suitability or ability have been considered and

evaluated, and found to be superior, then the seniority has no role to play.

In our view the PSC has evolved correct procedure in grading the officers

and the marks have been awarded according to the grading. It is seen that

the four officers have come in the grading of 'B'. In consequence, the PSC

had adopted the seniority of the appellants and Panda in the lower cadre

in recommending their cases for appointment in the order of merit."

(Emphasis is added)

71. What further follows from the above discussion is that contrary to

what has been decided in
Ramen Ch. Kalita
(supra), when determination

of relative assessment of merit of the aspiring candidates is sine qua non

for selection, the seniority shall have a role only when the merit is equal

or else, seniority will not permit promotion of a senior, who is less

meritorious than his junior.

72. When we revert to the Promotion Regulations, particularly,

Regulations 5(3AA) and 5(4), what clearly surfaces is that having

classified eligible officers of the State Forest Service as 'Outstanding,

'Very Good' or Good', in terms of the provisions of Promotion

Regulation 3(AA)
, the Selection Committee, since after the amendments

of 1976, is duty bound to prepare a select list in terms of
Regulation 5(4)
,

which lays down to the effect that keeping in view the requirement of

number of names, the Selection Committee shall, first, include, in the

select list, the names of those officers, who had been finally classified as

'Outstanding' and, then, select list shall contain the name of those, who

may have been classified as 'Very Good' and, thereafter, from amongst
Page 53

those similarly classified as Good have to be included in terms of their

inter se seniority in the State Forest Service.

73. Thus,
Regulation 5(4)
makes it abundantly clear that when a junior

officer of a State Forest Service is classified as 'Outstanding', he will,

while receiving promotion to the Indian Forest Service, supersede his

senior if his senior happens to be classified as 'Very Good' or 'Good'. To

put it crisply and in precise terms,
Regulation 5
makes it the duty of the

UPSC to ensure that promotion from the State Forest Service to the Indian

Forest Service is based on merit alone unless merit of the senior and

junior stand on the same footing, for, the senior, in such a case, would

retain his seniority in the Indian Forest Service; but, in a given case,

when a junior is found to be more meritorious than his senior, then, the

junior shall steal march over his senior.

74. What is, now, necessary to note is that
Regulation 5 (1)
of the

Promotion Regulations provides for preparation of a list of suitable

officers requiring the Central Government to decide, in consultation with

the State Government concerned, the number of members of the State

Forest Service to be included in the select list with a rider that such

numbers shall not exceed the number of substantive vacancies as on the 1st

day of January of the year on which the meeting is held.

75.
Regulation 5(2)
of the Promotion Regulations provides for zone of

consideration. According to
Regulation 5(2)
, the number of the members

of the State Forest Service to be considered for promotion shall be three
Page 54

times the number of vacancies determined under
Regulation 5 (1)
.

Normally, the zone of consideration is meant for the purpose of giving a

choice of better officers for promotion and it is for this reason that the

selection is based on merit by classifying the officers into the categories of

'Outstanding", 'Very Good' and 'Good' on the basis of comparative

assessment of their inter se merit. When a Review Selection Committee is

held, for the reason that an adverse remark has been set aside by the

Court in respect of the concerned officer or the downgrading of an

officer's ACRs has been found to be illegal and other similar

circumstances, the Review Selection Committee must consider afresh the

case of such officer alongwith the cases of all other already promoted

officers, with reference to the date on which the cases of other officers

were considered, because there may be a case, wherein as a result of

setting aside the adverse entry or the downgrading of the ACR, an officer

may displace or push down another officer to occupy the latter's place in

the merit list and if such a situation arises, the last person, in the final

select list, shall have to make way for the more meritorious officer

inasmuch as the list of suitable officers, as contemplated by
Regulation 5

(1)
, cannot exceed the number of substantive vacancies of a given calendar

year.

76. Logically speaking, therefore, on review, promoting an officer to

the Indian Forest Service (who, upon review, is found fit to be promoted

to the Indian Forest Service from State Forest Service) cannot be allowed
Page 55

to usurp or fill up the future vacancies of the next year. The 'guidelines',

issued by the UPSC, if found contrary to the scheme of promotion so

envisaged by the Promotion Regulations, cannot bear scrutiny of law.

77. The UPSC has issued 'guidelines' for preparation of the list of

suitable officers by Selection Committee for promotion to the Indian

Forest Service. Though the said 'guidelines' are not under challenge, it is

clear that the 'guidelines', for review, are not in conformity with the

Promotion Regulations. For example, it has been provided, in the said

'guidelines', at paragraph 9, as follows:

"9...... In the event, the State Government certifies that there is no

material change in the service records of the officer in the relevant

years, the Review Committee may not change the grading of the

officer already assigned by the earlier Committee. In exceptional

circumstances, in case the Selection Committee recommends any

change in the grading, specific reasons for the change should be

appropriately recorded by the Review Committee in the minutes."

78. The above 'guidelines' place the State Government in the shoes of

the Selection Committee to decide whether material changes have, or

have not, occurred in the ACR following its review by removing the

illegalities, though it is essentially for the Review Selection Committee to

examine the reviewed ACR of the officer concerned and, then, grade such

an officer as 'Outstanding', 'Very Good' or 'Good' or 'Unfit' as has been

provided by
Regulation 5(4)
of the Promotion Regulations.

79. The UPSC's 'guidelines' further provide, in paragraph H.10, for

"Interpolation of names in the select list after review". We have
Page 56

already pointed out that appointment by promotion, in terms of the

Promotion Regulations, is based on merit inasmuch as the Selection

Committee is required, under the Promotion Regulations, to categorize

the officers as 'Outstanding', 'Very Good' and 'Good' and, thereafter, to

prepare merit list in the manner prescribed under
Regulation 5(4)
, which

we have already discussed above.

80. If an occasion, therefore, arises for holding a Review Selection

Committee and, upon review, the officer is classified as 'Outstanding' or

'Very Good' and if he is required to be accommodated in the list of

promotion, which may have been prepared for a given calendar year, the

officer shall have to be placed at an appropriate place according to his

merit in the select list, which already existed. The effect of placement of

such an officer, at an appropriate place, in the select list, will have

cascading effect of pushing down the candidates in the select list and,

obviously, the candidate, having the least merit, at the end of the list, will

have to make way for better candidate.

81. Hence, there is no question of exceeding, by way of interpolation,

statutory limit of the size of the select list prepared under the
Regulation

5(1)
of the Promotion Regulations and, consequently, there is no room for

doubt that there can be any interpolation of the names in the select list after

review, for, the select list would, otherwise, exceed the number of

substantive vacancies, which might have occurred in a given year.

However, as the UPSC guidelines, with regard to interpolation of names in
Page 57

the select list after review, are not under challenge, in the present writ

petition, we refrain from interfering with the said guidelines making it

clear that it is, nonetheless, duty of the UPSC to ensure that their

guidelines are in tune with the amended provisions of the Promotion

Regulations.

82. In the result and for the reasons discussed above, this writ petition

succeeds. The impugned order, dated 05.09.2012, passed by the learned

Tribunal, the recommendations made by the Review Selection

Committee, in its meeting, dated 09.12.2011, as well as the promotion of

respondent No. 4 to the Indian Forest Service are hereby set aside.

Respondent No. 2 is hereby directed to hold a meeting of the Review

Selection Committee to consider the petitioner's case for promotion to the

Indian Forest Service on the basis of all the relevant ACRs of the

petitioner vis-à-vis all the relevant ACRs of the respondent No. 4.

83. With the above observations and directions, this writ petition

stands disposed of.

84. No order as to costs.

JUDGE JUDGE

Dutt/rk
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