Central Administrative Tribunal - Ahmedabad

B.R. Pandya And Ors. vs Union Of India (Uoi) And Ors. on 2 November, 2004

Equivalent citations: 2005(3)SLJ265(CAT)

JUDGMENT

Shankar Prasad, Member (A)

1. A common order is being passed in O.As. 25/2002 and O.A. 26/2002 as identical question of law have been raised therein. The only relief, which is now and specifically prayed in O.A. 25/2002 is being sought for, is the declaration that Regulation 5(3)(A)(A) and 5(4) of the Indian Forest Service (Appointment by Promotion) Regulation, 1966, is in violation of
Articles 14
and
of the Constitution of India.

Other issues which had been raised in these O.As. have already been decided by our common judgment dated 05.12.2002 in O.As. 171/91, 172/99, 173/2000 and 141/2002. The same were accordingly not pressed.

2. We have heard Mr. Rawal learned Counsel for the applicant and have also gone through his written arguments. We have also heard Mr. Rao on behalf of UPSC and Mr. Doctor on behalf of Union of India. We have also gone through the written statement filed on behalf of private respondent Nos. 4 and 5.

3. Mr. Rawal in his submission has drawn our attention to the following:

(a) There is no method of communicating 'good' remarks to the applicants, which in effect amount to adverse, if 'outstanding'/'very good' officers are available.

(b) Para 3 of GAD circular dated 1.12.1975 provides for limiting number of outstanding candidates to only 20% of successful candidates.

(c) If these rules are not so interpreted then they will deny the right to consideration of applicants who have only 'good' remarks and take away their right of consideration.

4. The Union of India and the UPSC have stated that identical provision exist in the case of I.A.S. Appointment Regulation and the said provisions have been held to be valid in the decision of Apex Court in
R.S. Dass v. Union of India
, 1987(2) SLJ 56 (SC).

The private respondents in their written reply have stated that prescription of minimum Bench mark either in service rules or by way of executive instructions is neither new nor impermissible. The same cannot be challenged as being ultra vires of the provision of the Constitution of India.

5. The Apex Court in
I.A.S. Association U.P. v. Union of India
, 1993(1) SLR 69 (SC) had held that rules framed under
Section 3(1)
of the All India Services Act are statutory in character.

6. The Indian Forest Service (Recruitment) Rules contains provision relating to recruitment. Rule 4(2) provides that recruitment to the services shall be by a competitive examination and by promotion of substantive members of the State Forest Service. Rule 8 contains provision relating to recruitment by promotion of officers of State Forest Service.

Sub-rule (1) reads as follows:

"The Central Government may, on the recommendations of the State Government concerned and in consultation with the Commission and in accordance with such regulation as the Central Government may, after the consultation with the State Governments and the Commission, from time to time, make, recruit to the Service persons by promotion from amongst the substantive members State Forest Service."

7.(1) IFS (Appointment by Promotion) Regulation has been framed in exercise of this power. Regulation 5 contains provisions relating to preparation of a list of suitable officers. Sub-clause (1) provides for meeting of Selection Committee each year with a view to preparing a list of persons suitable for promotion to the Service. Sub-clause (2) provides that Committee shall consider, for inclusion in the said list, the cases of members of the State Forest Service in the order of seniority in that service of a number which is equal to three times the number referred to Sub-regulation (1) for the purpose of making recommendation. The proviso also provide for different situation mentioned therein and the conditions which the State Forest Officer must fulfill. Sub-clause (3) provides that persons who have attained the age of 54 years on due date shall not be included. Sub-clause 3(A) provides it shall not consider the names of such State Forest Service Officers, who had been included in the earlier selection list but had either expressed their unwillingness to join the service or were not appointed by the Central Government.

(2) Sub-rule 3(AA) and 4 of Rule 5 of IFS (Appointment by Promotion) Regulation which have been challenged reads as follows :

"(3-AA) The Selection Committee shall classify the eligible officer as Outstanding 'Very Good', '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" than from amongst those similarly classified as 'Very Good' and thereafter from amongst those similarly classified as 'Good' and the order of names inter se within each category shall be in the order of their seniority in the State Forest Service."

(3) Sub-clause 5 provides that the list so prepared shall be reviewed and revised each year.

(4) These rules are pari materia rules contained in IAS (Appointment by Promotion) Regulation and IPS (Appointment by Promotion) Regulation.

8. A three Judges Bench of the Apex Court in Pervez Quadir v. UOI, AIR 1975 SC 446 was considering amongst others the challenge to Regulation 5 of the IFS (Initial Recruitment) Regulation. The said Regulation 5 is as follows :

"Preparation of list of suitable officers:

(1) The Board shall prepare in the order of preference, a list of such officers of State Forest Service who satisfy the conditions specified in
Regulation 4
and who are adjudged by the Board suitable for appointment to posts in the senior and junior scales of the service.

(2) The list prepared in accordance with Sub-regulation (1) shall then be referred to the commission for advice, by the Central Government alongwith:

(a) the records of all officers of State Forest Service included in the list;

(b) the records of all other eligible officers of the State Forest Service who are not adjudged suitable for inclusion in the list, together with the reasons as recorded by the Board for their non-inclusion in the list; and

(c) the observations, if any, of the Ministry of Home Affairs on the recommendations of the Board.

(3) On receipt of the list, along with the other document received from the Central Government, the Commission shall forward its recommendations to that Government."

The Apex Court held as follows:

'The adjudgment of suitability on the basis of the confidential entries and other records cannot be said to be arbitrary, and consequently Regulation 5 is not invalid. It is the duty of the Special Selection Board to prepare a list from amongst the State Forest Officers and such a list can only be prepared in order of seniority if the respective records of each of such officers is considered and the comparative merit assessed. The past performance of an officer being one of the criteria for making selection, the only way to adjudge their suitability is by perusal of confidential records performance as disclosed by the confidential records can be considered as the proper method for adjudging suitability of the officer concerned. (1971) 2 SCR 55, Rel. on.

It cannot also be contended that Regulation 5 of the Initial Recruitment Regulations regarding adjudging of the suitability is not valid. The word 'suitability' itself is correlated with the object of recruitment, namely, that a person has to be considered suitable for appointment to a superior service which itself furnishes the norm that he is considered suitable having regard to his service in the State Forest Service."

9. Regulation 5 of IAS & IPS (Appointment by Promotion) Regulations prior to its amendment in 1977 was as follows:

5(1) The Committee shall prepare a list of such members of the Stare Civil/Police 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/Police 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.

(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 Sate Civil/Police Service:

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.

(4) The list so prepared shall be reviewed and revised every year.

(5) If in the process of selection, review on revision it is proposed to supersede any member of the State Civil/Police Service the Committee shall record its reasons for the proposed supersession".

10. The Apex Court in
UOI v. Mohanlal Kapoor
, 1973(2) SLR 824 (SC) was considering appeals filed by UOI, Government of U.P. and 3 Pvt. respondents against the common decision given by Allahabad High Court in the writ petition filed by Mr. M.L. Kapoor and Mr. K.N. Mishra. Both these persons of the U.P. Police Service had continued in the select list until their names were dropped in the list for 1968. They had filed writ petition in the Allahabad High Court for quashing their alleged orders of reversion. The Division Bench of the Allahabad High Court had upheld their appeals against the judgment of learned Single Judge dismissing their writ petition.

Justice Beg of the Apex Court in his separate judgment held as follows:

22. "Thus, we think that the correct view, in confirmity with the plain meanings of words used in the relevant rules, is that the "entrance" or "inclusion" test, for a place on the select list, is competitive and comparative applied to all eligible candidates and not minimum like pass marks at an examination. The Selection Committee has an unrestricted choice of the best available talent, from amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor. A simple reading of the Regulation 5(2) clearly indicates this to be the correct view. The required number had thus to be selected by a comparison of merit of all the eligible candidates of each year. But, in making this selection, seniority must play its due role. Seniority would, however, only be one of the several factors affecting assessment of merit as comparative experience in service should be. There could be a certain number of marks allotted, for purposes of facilitating evaluation, each year of experience gained in the service. When the required number for the list is thus chosen the respective roles of seniority and exceptional merit would be governed by Regulation 5(3). This seems to be the correct interpretation of rules as they stand."

Justice Mathew in his judgment held as follows:

36. "And, when 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?

45. "Regulation 5(3) says that the names of the officers included in the list shall be arranged in the order of seniority in State Service. The provision might not have been necessary if the selection was on the basis of seniority subject to the condition of fulfilling the criteria of merit and suitability. In other words, when once the selection is made on the basis of merit and suitability with due regard to seniority, the fact that Regulation 5(3) enjoins that the names must thereafter be arranged according to their seniority in State Service is a definite pointer that the selection must primarily be on the basis of merit and suitability. And even when arranging the names of officers according to the order of seniority in State Service, exceptional merit is given preferential treatment, as the proviso says that a junior officer who is of exceptional merit and suitability must be assigned a place in the list higher than that of officers senior to him. This is an unmistakable indication to show that the whole scheme of the Regulation is to give preferential treatment to merit and suitability."

11. It appears that subsequent to this decision in the case of
M.L. Kapoor
(supra) the Selection Committee created for this purpose faced some difficulties in assigning reasons for persons, who were being by passed.

The position summed up by the Apex Court in
R.S. Das v. UOI
, is as follows :

16. "It appears that the Committee making selection constituted for the purpose of preparing the select list felt difficulty in recording reasons, in the precise manner as
laid down by
this Court. The question was considered by a conference of Chief Secretaries held in May, 1976 and it appointed a Committee to consider the question. The Committee noted that consequent to the judgment of this Court Selection Committee has to go by seniority subject to the rejection of the unfit, even though regulations prescribed merit as the criterion for selection. The Committee reported that the system of categorisation of officers for promotion to the Higher Post should be followed in case of All India Services also. After considering the report of the Committee, the Conference of Chief Secretaries made recommendations to the Union Government that necessary amendment should be made in the Regulations providing for grading of eligible officers as "Outstanding", "Very Good", "Good" for the purpose of being placed in the select list to ensure that select list is drawn upon the basis of merit and suitability and to obviate the necessity of giving reasons for the supersession of any officer."

It is thereafter that amendments were notified vide notification dated 3.6.77 and that's how the rules part of which are under challenge came into existence. Sub-clause (1) had subsequently been amended in 2000.

12. The applicants in
R.S. Das v. UOI
had challenged the vires of the amended regulation on various ground. The Apex Court held as follows:

28. "The principle object of the promotion system as contained in the regulations is to secure the best possible incumbents for promotion to the Indian Administrative Service which is the backbone of the administrative machinery of the country. The efficiency of the administration in the Union as well as in the State largely depends upon the efficiency of the members of the Indian Administrative Service. Efficient public service is in public interest and the public interest is best secured if reasonable opportunity for promotion exist for all qualified members of the State Civil Service and only those who are found efficient and suitable in all respects are promoted. This object is sought to be achieved by the regulations in prescribing merit as the sole test for promotion."

In this view we find no good reasons to hold that in the absence of reasons the selection would be made arbitrarily, where power is vested in high authority there is a presumption that the same would be exercised in a reason able manner and if the selection is made on extraneous considerations, in arbitrary manner the Courts have ample power to strike down the same and that is an adequate safe guard against the arbitrary exercise of power."

30. "An ancillary argument was raised to demonstrate discrimination. It was urged that the regulations do not lay down any guidelines for categorisation of officers of the State Service into various categories with the result the Committee even if action bona fide may apply different standards at different times. The argument was further developed that the Committee members change and, therefore, the same Committee or different Committee is likely to apply its won standard in judging the suitability of officers in different manner in different years which would result into discrimination. This submission is founded on the assumption that the Committee is free to categorise officers at its sweet will but that assumption is misconceived. Under Regn. 5 the Committee has to categorise officers on the basis of their service records into four categories as discussed earlier. The categorisation is objectively made on the material available in the service records of the officers. There is hardly any scope for applying different standards or criteria at different times as the service records namely the character roll entries would indicate the category of the officers as adjudged by the authority recording annual confidential remarks.

The Committee has to categorise the members of the State Service on the basis of entries available in their character roll and thereafter to arrange their names in the proposed list in accordance with the principles
laid down in
Regn. 5. There is no scope for applying different standard or test in preparing the list, or to practice discrimination. We, therefore, find no merit in the submission that Regns. 3 and 5 are discriminatory and they violate
Articles 14
and
of the Constitution."

13. We also note that a Constitution Bench of the Apex Court in
Sant Ram Sharma v. State of Rajasthan
, AIR 1967 SC 1910 was considering the provision of
IPC
(Pay) rules for promotion to selection grade posts. The applicant was aggrieved by the promotion of his juniors to the DIG rank. Amongst others the challenge was on the ground that introduction of the concept of merit in the procedure of promotion is in violation of the constitutional guarantee under
Articles 14

& 16
of the Constitution of India. The Apex Court held as follows:

"Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favoritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level, it is a dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade; the very opposite may be true."

(Introduction to the Study of Public Administration, 4th Edn., pp. 380, 383).

As a matter of long administrative practice promotion to selection grade posts in the Indian Police Service has been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr. N.C. Chatterjee that this procedure violates, in any way, the guarantee under
Articles 14
and
of the Constitution."

14. The three Judges Bench of the Apex Court recently in the case of
UOI and Ors. v. Lt. Gen. R.S. Kadyan and Anr.
, 2000 SCC (L&S) 797 : 2001(1) SLJ 354 (SC) was amongst considering the question as to how it is to be determined as to whether the promotion post is a selection post. It also explained the criteria for selection. The Apex Court held:

26. "In deciding whether a post is a selection post or not, one of the criteria to be considered is if it involves a comparative assessment of officers, necessarily the element of selection is involved and, therefore, the post with which we are concerned is indeed a selection post although not totally ignoring a senior."

11. "Selection implies the right of rejection depending upon the criteria prescribed. Selection for promotion is based on different criteria depending upon the nature of the post and requirements of the service. Such criteria fall into three categories, namely,

1. seniority-cum-fitness,

2. seniority-cum-merit

3. merit-cum-suitability with due regard to seniority.

12. "Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "Seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying as benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion of All-India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them."

15. We first note that the applicant has challenged only some part of recruitment regulation and not the entire scheme. Sub-clause 2 provides for the zone of consideration, which is 3 times the No. of vacancies. This aspect has not been challenged. It is clearly
laid down in

Tamil Nadu Administrative Service Officers v. UOI
,
AIR 2000 SC 1898 and R.S. Dass
's case that the most meritorious candidate should be selected.

Even in the case of promotion within All India Service the Constitution Bench in
Santram Sharma
case has held that merit as opposed seniority has to play the important role.

In
Kadyan
's case also the Apex Court has held that where selection is on the basis of All India competition or on comparative assessment the criteria has to be on merit.

16. The Apex Court in
R.S. Dass
's case (supra) while considering the challenge on the grounds mentioned therein has already held that the amended regulation is intra vires of the constitution.

17. One of the points urged by learned Counsel is that non-communication of Bench mark leads to situation where the concerned officers cannot improve themselves. He has also drawn attention to the Apex Court decision in
U.P. Jal Nigam
's case and said that as per said decision below Bench mark remarks have to be communicated. What will be the bench mark for a particular year is difficult to say. If in a particular year the Selection Committee finds that all officers are assessed as "good" only the officer categorised as "good" will be appointed in All India Service. It may however so happen in another year that the number of officers adjudged outstanding exhaust the number of vacancies of that year and therefore even officers assessed very good may not be selected. These are fortuitous circumstances.

The Punjab & Haryana High Court in CWP 13024 CAT 2002 UOI v. M.S. Preeti, CWP 18833 CAT of 2002 UOI v. Col.
Tilak Raj and Delhi High Court in
Rajender Kumar v. UOI and Ors.
, 91(2001) DLT 170 and CWP 1386/2002
UOI v. R.K. Anand
have held that U.P. Jal Nigam is not an authority for the proposition that below Bench remarks have to be communicated.

A full bench of the Tribunal in
Dr. A. Dawar v. UOI, O.A.
555/2001 before Principal Bench has relying on these judgments held that below bench mark entries are not to be communicated. As the communication of below bench mark ACRs is a matter between State Govt. and its employees whether the Tribunal would have jurisdiction to consider this aspect is another question.

18. Another contention, which has been raised by the learned Counsel for the applicant was regarding the circular of Gujarat Government restricting the number of persons who can be promoted on merit. As we have noted above the regulations framed under All India Service Act have statutory force. Such circulars which regulate promotions within Gujarat Govt. cannot override the provision of regulations framed under All India Service Act from time to time and are not applicable to such promotion.

19. In view of what has been discussed above there is no merit in these O. As. and the same deserves to be dismissed. They are dismissed. M.A. also stands disposed of. No order as to costs. One copy of the order may be kept in O.A. 26/2002.