S. Manickavasagam, Member (A)
1. The applicant in OA Nos. 238 and 781 of 1998 is the same person and has assailed the impugned orders of the official respondents, viz.
(a) F. No. 14015/22/96 AIS (I) of the Ministry of Personnel Public Grievances and Pensions, Govt. of India dated 30.12.1996;
(b) F.No. 14014/10/97-AIS (I) Ministry of Personnel, Public Grievances and Pensions, dated 28.2.1997, as conveyed in letter No. 4030/97-1 dated 15.7.1997.
The applicant in OA No. 466 of 1998 has challenged the following orders of the official respondents, viz. F.No. 14014/17/97-AIS (I) of the Ministry of Personnel, Public Grievances and Pensions, dated 28.2.1997, as conveyed in GO Ms. No. 917 Public (Spl. A) Department dated 29.7.1997.
2. Since the issues involved are interlinked in all these three OAs and the relief prayed for are identical, these three OAs are heard together and these are disposed of by this common order :-
3. Briefly stated the case of the applicant are as follows:-
OA Nos. 238 ofl998 & 781 of 1998
4. The applicant in this OA joined the State Civil Service (SCS for short) in 1979. After joining the SCS, he functioned in different capacities at various places in the State. While so, the Govt. of India by its order dated 25.1.1996 notified additional 8 posts under the promotion quota for the SCS officers for being selected to the IAS. In the meantime, there was another vacancy caused due to the retirement and therefore the total number of vacancies under the promotion quota during that year was computed as 9. Subsequently, a select committee was constituted for preparation of the select list for the year 1996 for the said 9 vacancies. It was chaired by a Member of the Union Public Service Commission, (UPSC for short). It is stated that the select committee had its sittings held during March, 1996. It is averred in the OA that the applicant was placed at Sl. No. 7 of the said list. It is the contention of the applicant that the select list prepared by the Committee is totally unfair and unjustified. It is further averred that the Selection Committee never considered the seniority and merit of the applicant while preparing the select list. It is also averred that the Committee, more particularly the then Chairman of the Committee considered favourably the names of Mr. V. Thangavel, Mr. V. Moorthy, Mr. K. Dhanavel, and Mr. S. Natarajan for inclusion and placement in the select list on some extraneous consideration. The averments in the OA further proceeds to state that the above mentioned officers were categorised as 'outstanding' which were not at all supported by records. It is also the contention of the applicant that the select committee with mala fide intention had downgraded the officers in the select list and treated the officers who had put in only about 10 years of service on par with the officers who had put in more than 16 years of service.
5. It is further averred in the OA that the Tamil Nadu Administrative Service Officers' Association had protested against the said select list and represented to the Tamil Nadu Government, Union Public Service Commission (UPSC for short) and the Government of India. It is stated that the Tamil Nadu Government after a careful consideration of the said representation had recommended to the UPSC and Union Government stating that the said list may be revised by giving due regard to the seniority as has been followed in the previous years. The Union Government on receiving the said recommendation from the Tamil Nadu Government had directed the UPSC to reconsider the entire list and prepare a fresh list in accordance with law. The UPSC had also decided and directed the select committee to hold a fresh meeting and reconsider the select list and prepare a fresh list. It is also averred that the select committee for preparing a new select list for the second time during the month of November 1996 and prepared a list containing 8 names of the Officers. In the fresh list prepared by the select committee the name of Mr. Natarajan was removed. This list was also approved by the UPSC during the month of December 1996. In pursuance of the approval by the UPSC, the Union Government had appointed 8 officers to the Indian Administrative Service (IAS for short) from the said list by an order of the Govt. of India dated 30.12.1996, and the same was also communicated to the applicant by the Tamil Nadu Govt. - vide letter dated 3.1.1997. It is stated in the OA that the applicant was placed at Sl. No. 6, whereas his juniors Mr. V. Thangavel (1979 batch), Mr. V. Moorthi (1981 batch) and Mr. K. Dhanavel (1985 batch) were placed at Sl. Nos. 1 to 3. Smt. Kannagi Packianathan and Mr. Basheer Ahmed who were recruited to the SCS Officers in the year 1979 were placed in the select list of 1996 at Sl. Nos. 4 and 5 respectively. It is the case of the applicant that the select committee had wrongly placed him at Sl. No. 6 and S/Shri V. Thangavel, V. Moorthy and K. Dhanavel had scored a march over him by placing them at Sl. No. 1 to 3 which according to him is not correct. It is also the contention of the applicant that the action of the selection committee placing the above individuals above him is highly arbitrary, contrary to the regulations, illegal and unjust.
6. It is the contention of the applicant that during the course of 10 years of service he has obtained all along outstanding reports and had obtained more than 25 appreciation letters from his superior officers and meritorious awards from the Government of Tamil Nadu. It is also stated that had the Selection Committee strictly followed the Sub-regulation (5) of Regulation (5) of the IAS (Appointment by Promotion) Regulations, 1955, he ought to have been classified as 'outstanding' and should have been placed at the top of the list. The applicant further states that the selection committee did not take into consideration the relevant records of Shri Dhanavel for the years 1994 to 1996 for the purpose of inclusion. It is alleged that if all the records for the period from 1994 to 1996 of Mr. Dhanavel had been taken into consideration then he would not even be categorised as 'good'. It is his contention that the selection committee had omitted to consider the records of Mr. Dhanavel from 1994 to 1996. Under these circumstances the applicant has come before this Tribunal seeking the following reliefs :-
"To call for the records of the select list of 1996 of the respondents 1 to 4 along with the subsequent Notification No. F 14015/22/96-AIS (I) of the M/o Personnel, Public Grievances and Pensions, Govt. of India dated 30.12.1996 and set aside the placement of 5th, 6th, and 7th respondents in the select list at Sl. No. 1, 2, 3 respectively and direct the respondents 1 to 4 to place the applicant as against Sl. No. 1 in the select list of 1996 and accordingly reissue the notification in No. F 14015/22/96 AIS (I) of the M/o Personnel, Public Grievances and Pensions, Govt. of India dated 30.12.1996 by placing the applicant's name as against Sl. No. 1 in the said notification and pass such further or other order as this Hon'ble Tribunal may deem fit and proper and thus render Justice".
OA 781 of 1998
Pursuant to appointment to the applicant to the IAS from the select list of 1996 - vide order dated 30.12.1996, the seniority/year of allotment was published by the official respondents - vide letter dated 28.2.1997. Adducing the same reasons in the OA No. 238/ 98, the applicant is challenging the seniority/year of allotment as appointment to IAS and assignment of seniority, are consequential and interlinked. The reliefs,sought for by the applicant in this OA are as follows :
"To call for the records of the impugned proceedings of the fourth respondent in No.F 14014/10/97-AIS-I Govt. of India Ministry of Personnel, PG and Pensions, Dept. of Personnel and Training dated 28.2.1997, communicated vide letter No. 4030/97-1 Public (Special-A) Department Fort St. George, Chennai-9, and quash the impugned proceedings in No. 14014/10/97-AIS (I) Govt. of India, M/o Personnel, Public Grievances and Pensions, Department of Personnel and Training and further direct the respondents 1 to 4 to allot 1991 as the year of allotment and place the applicant below G. Santhanam and above the respondents 5th to 16th respondent in inter-se seniority list of the IAS Officers of Tamil Nadu cadre and pass such further order/orders or other orders as this Hon'ble Tribunal may deem fit and proper and thus render justice".
O.A. No. 466/98
7. The applicant in this OA had joined the SCS on 12.8.1985 (1985 batch). His case for selection to the IAS came up for consideration on 31.3.1996. It is stated in the OA that he was appointed to the IAS Tamil Nadu cadre as per the select list of 1996 under Rule 9(1) of the IAS (Appointment by Promotion) Regulations 1955 - vide order dated 19.12.1996. It is averred in the OA that he came to know about his seniority position in the select list in the later half of 1997 and he was shocked and surprised to find his name being placed as last in the list of 9 officers. It is his contention that the ranking assigned to him in the select list is arbitrary and has not been done in accordance with the relevant regulation of IAS (Appointment by Promotion) Regulations, 1955.
8. It is further averred in the OA that according to regulations No. 5(4) and 5(5), the select committee is required to categorise the eligible officers as 'outstanding', 'very good', 'good' and 'unfit' based on the assessment of the Annual Confidential Reports (ACRs). It is the contention of the applicant that the categorisation done by the select committee is discriminatory, vis-a-vis the officers who have been placed above him. The applicant states that the classification and the gradation of the officers in the select list made by the select committee is also violative of Articles 14,16 of the Constitution and also void ab-initio. Hence this applicant has come before the Tribunal seeking the following reliefs:-
"To call for the records relating to the select list of 1996 from the respondents 1 to 3 and also other records relating to fixation of seniority ordered in the select list in No. 14014/17/97-AIS (I) of the M/o Personnel, Public Grievances and Pensions, Govt. of India dated 28.2.1997, as conveyed in GO Ms. No. 917, Public (Spl. A) Department dated 29.8.1997 to revise the seniority of the applicant by placing him in the appropriate place and confer all the consequential benefits and pass such further or other orders as the Tribunal may deem fit and proper in the circumstances of the case and thus render justice".
9. The Union of India has filed reply in respect of OA No. 466 of 1998 and the Tamil Nadu Government has filed its reply in respect of OA Nos. 466 and 238 of 1998. The UPSC has separately filed its reply in respect of OA Nos. 466 and 238 of 1998.
10. In the reply filed by the Govt. of Indiait is stated that the State Govt. and the UPSC are primarily concerned with the subject matter and the UOI is impleaded as a necessary party only with reference to the rules and regulations involved in the matter of promotion of SCS officers to the IAS. It is further stated that with regard to zone of consideration, the number of SCS officers to be forwarded to the Selection Committee by the State Government, the procedure to be followed by the Selection Committee for preparation of the select list and the further process thereon, are all contained in Regulations No. 5 to 7 of the IAS (Appointment by Promotion) Regulations, 1955. The reply further proceeds to state that it is only the UPSC which approves the select list solely and they are concerned with regard to the disputes arising with reference to the overall assessment and grading/ categorisation, of the officers considered for inclusion in the select list and subsequent appointment to the IAS, and their seniority etc. That apart the year of allotment/seniority assigned to SCS officers who had been inducted to the IAS cadre by promotion is entirely dependant upon the inter-se seniority of the applicant in the select list prepared by the selection committee. It is the stand of the UOI that the UPSC alone is concerned with the disputes arising out of assessment made by the selection committee (Rule 7 of the Regulations). The reply further proceeds to state that it is the Commission which has to give its final approval as to the proceedings of the selection committee. It is further averred that the select committee had considered of eligible SCS officers on 18.3.1996 and 7/8-11-1996 and have graded the applicant as 'very good' and the committee had placed him at Sl. No. 9 in the select list, whereas respondents 4, 5 and 7 to 11 were senior to the applicant in the SCS grade and the 6th respondent who was junior to the applicant in the SCS grade was graded as 'outstanding', they were given respective placement in the select list. It is also the contention of the Govt. of India that there is no basis for disagreeing with the assessment made by the selection committee. It is further averred that year of allotment/seniority in the IAS was correctly fixed as 1993 as far as the applicant is concerned after taking into his service in the SCS up to that date, in accordance with Regulation No. 3 (3)(ii) of the IAS (Regulation of Seniority) Rules, 1987, as amended.
11. The Tamil Nadu Government has filed a reply in OA No. 238 of 1998. Therein it is stated that the grievance of the applicant is primarily concerned with the UPSC as the applicant had challenged the assessment made by the UPSC and the gradings given by the select committee to the SCS officers who are juniors to the applicant. It is further averred that in accordance with the regulations, the names of eligible SCS officers were forwarded by the State Government vide letter dated 7.3.1996 to the UPSC for its consideration. The select list prepared by the select committee was forwarded by the State Govt. to the UPSC along with its observations on the recommendations of the select committee - vide letter dated 25.3.1996 and 21.11.1996. The observations of the Central Govt. was also forwarded to the UPSC and the final approval of the select list was conveyed by the UPSC on 13.12.1996. Subsequently the Union Government communicated the select list to the State Govt - vide letter dated 13.12,1996. On receipt of the same appointments were made by the Union Govt. on consideration of the proposals made by the State Govt. It is further stated that in the instant case, the select committee had considered the cases of officers of the SCS and graded the applicant as 'very good' and on that basis, the applicant was placed at Sl.No. 6 in the select list, and since party respondents 5, 6 and 7 were graded as Outstanding they were given the respective placement by the select committee in the select list. It is the contention of the State Government (hat they have no scope to disagree with the assessment made by the Committee. It is also the contention of the respondent department that the application lacks merit since the select committee bad assessed him in accordance with Regulation No. 9(1) of the IAS (Appointment by Promotion) Regulations, 1955. This respondent has prayed that the OA is liable to be dismissed as devoid of merit.
12. The UPSC has also filed a reply in OA No. 238 of 1998. It is averred that selection of SCS officers for promotion and appointment to IAS is governed by IAS (Appointment by Promotion) Regulations, 1955. The reply further proceeds to state that the select committee consisted of the following:-
(a) Chairman of the UPSC or any other Member of the Commission as President, with the following as Members
Chief Secretary to Government
Special Commissioner in charge of Revenue Administration
First Member, Board of Revenue
Secretary to Government, Revenue Department
Two nominees of the Govt. of India not below the rank of Joint Secretary
In terms of Regulation 5(4) of the Regulations, the select committee duly classified the eligible SCS officers who came within the zone of consideration as follows :-
"Outstanding", 'Very good', "Good" or "unfit" as the case may be.
Thereafter, in accordance with Regulation 5(5), the select committee prepared the list by including the required number of persons classified as 'outstanding', 'Very good', 'Good' or 'unfit' and the order of names inter-se within each category is maintained in the order of seniority in the SCS. The UPSC have further averred in support of their action in para 3.3 of the reply which reads as follows :-
"Grading given by reporting/reviewing officer in the ACRs reflects the merit of the officers reported upon in isolation whereas the classification made by the selection committee on the basis of logical and deep examination of the service records of all the eligible officers in the zone of consideration reflects the merit of the officer in relation to other officers in the zone of consideration. Every selection committee is independent of the other. It adopts its own norms and yardsticks in order to ensure equity, justice and fairplay in the assessment of ACRS".
In support of their action the UPSC had placed reliance on the decision of the Apex Court UPSC v. H.L Dev, AIR 1988 SC 1069 wherein it was held as follows :-
"How to categorise in the light of the relevant records and of the norms to make assessment are exclusively the functions of the selection committee. The jurisdiction to make the selection is vested in the selection committee".
It is further averred in the reply that the selection committee was chaired by the then Member of the UPSC Mr. Krishna Mohan and attended to by the following members :-
The Chief Secretary to Govt. of Tamil Nadu
Principal Commissioner and Commissioner for Revenue Administration
Secretary to Govt. of Tamil Nadu Revenue Department
Joint Secretary to Govt. of India Dept. of Personnel and Training
The reply further proceeds to state that the selection committee after perusing the relevant records had categorised the applicant as 'very good' and placed him at Sl. No. 7 in the select list. The Tamil Nadu Govt. vide their letter dated 25.3.1996 conveyed their agreement with the recommendation of the selection committee. Subsequently, representations/complaints were received from the Tamil Nadu Administrative Service Officers Association alleging certain irregularities in the preparation of the select list for the year 1995-96. On consideration of the allegations in the representation/complaint, the Union Govt. vide letter dated 30.8.1996 had observed that in the absence of the ACRs for some period in respect of Mr. S. Natarajan and Mr. K. Dhanavel, the assessment made by the selection committee stands vitiated. Therefore the Union Govt. had requested the Commission to have a detailed examination of the entire matter and take such remedial measures as may be deemed fit in terms of Regulation 7(2) of the Regulations.
13. Thereafter the matter was examined by the Commission and on consideration of the various issued involved the Commission decided to reconvene the meeting after obtaining the missing ACRs of the above officers. Subsequently, the select committee met (reconvened) on 7/8-11-1996 under the Chairmanship of late Mr. B. Krishnamohan, the then member of the UPSC. On examination of the records Shri K. Dhanavel was graded as 'Outstanding' by the select committee. In respect of Mr. S. Natarajan, on the basis of assessment of the ACRs, including the one made available by the State Govt. his case was categorised as 'very good'. But, earlier he was categorised as 'outstanding' in the select committee meeting held on 18.3.1996.
14. It is further averred in the reply that the position of the applicant in the select list had improved from Sl. No. 7 to Sl. No. 6, whereas the position of Mr. Natarajan was pushed downwards to No. 10 from No. 4. The revised select list was approved by the Commission on 13.12.1996 and the applicant was appointed to the IAS Tamil Nadu cadre - vide DOPT notification dated 30.12.1996. The reply further proceeds to state that in accordance with IAS (Appointment by Promotion) Regulations, 1955, merit is the prime criteria for selection and did not seniority. It is also the contention of the Commission that the Regulation No. 5(4) and 5(5) has been upheld by the Apex Court in the decision rendered in the case of R.S. Dass v. Mrs. K. Goyaland batch, AIR 1987 SC 593. Thus when selection is made on the basis of merit, a junior officer having a higher grading than a senior officer, the junior officer will score a march over the senior officer and this cannot be helped. It is further contended that the applicant cannot question the assessment made by the select committee and cannot insist upon that the self-assessment as 'outstanding' alone should prevail. In support of their action, the UPSC had relied on a number of decisions stating that it has been uniformly held that the jurisdiction to make selection is vested in the selection committee and Courts cannot sit over the assessment made by the selection committee as an appellate authority.
15. The State Govt. has also filed a reply in OA 466/98 on the same lines as filed in OA No. 238 of 1998. It is further stated that the applicant was considered as 'very good' and on that basis he was placed at Sl. No. 9 in the select list. It is further averred that there is no merit in the OA as the assessment made by the select committee cannot be disagreed to, which has been approved by the UPSC.
16. In OA 466 of 1998 the UPSC had also filed a reply. The reply proceeds on the lines as in the case of OA No. 238 of 1998.
17. The learned Counsel Mr. R. Sivasubramanian, appearing for the applicant in OA 238 of 1998 urged that the applicant had all along obtained 'outstanding' grading in his ACRs and possess an unblemished record of service. The learned Counsel briefly summarised the protest made by the Tamil Nadu Administrative Service Officers' Association through their letters addressed to the Chairman, UPSC, the Prime Minister, the Chief Minister of Tamil Nadu and the Chief Secretary to Government of Tamil Nadu. The learned Counsel placed reliance on the Regulation Nos. 3, 5, 6, 7 and 9 of the IAS (Appointment by Promotion) Regulations, 1995 and also IAS (Regulation of Seniority) Rules, 1954 and 1987, with special reference to Rule 3 of the Rules. The learned Counsel would say that the official respondents have not exercised the power vested on them in a proper perspective and in view of this, the applicant has been put to loss of seniority when he was inducted to the IAS. In support of his contention the learned Counsel placed reliance on the decision of the Apex Court rendered in Express Newspapers (P) Ltd. v. UOI, AIR 1986 SC 872. Therein the Apex Court had observed that fraud on power voids the order if it is not exercised bonafide for end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The learned Counsel further placed reliance on the decision rendered in His Highness Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. UOI, AIR 1971 SC 530, wherein the Apex Court had held that the charge of malafide action in this connection can only mean want of good faith. Good faith according to the definition in the General Clauses Act means a thing which is in fact done honestly, whether it is done negligently or not. In other words, an act done honestly must be deemed to be done in good faith. The learned Counsel also placed reliance on the decision rendered by the Apex Court in the case of G. Sadanandan v. State of Kerala, AIR 1966 SC 1925, wherein the Apex Court had held that where specific allegations in the petition are made against an authority, denial of such allegation by an authority other than the one against whom allegations are made and that too in a vague manner, is a ground sufficient to arrive at the conclusion of mala fides.
18. The learned Counsel for the applicant further placed reliance on the decision C.S. Rowjee and batch v. The State of Andhra Pradesh, AIR 1964 SC 962, wherein the Supreme Court had observed that "allegations of mala fides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times. It is also somewhat unfortunate that allegations of this nature which have no foundation in fact are made in several of the cases which has come up before this and other Courts and it is found that they have been made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not some of it at least might stick. Consequently it has become the duty of the Court to scrutinise these allegations with care as to avoid being in any manner influenced by them, in cases where they have no foundation in fact. In this task which is thus cast on the Courts it would conduce to a more satisfactory disposal and consideration of them, if those against whom allegations are made came forward to place before the Court either their denials or their version of the matter, so that the Court may be in a position to judge as to whether the onus that lies upon those who make allegations of mala fides on the part of authorities of the status of those with which this appeal is concerned have discharged their burden of proving it. In the absence of such affidavits or materials placed before the Court by these authorities, the Court is left to judge of the veracity of the allegations merely on tests of probability with nothing more substantial by way of answer". It is the contention of the learned Counsel appearing for the applicant that the selection committee had acted with mala fide intention and brought down the grading of the applicant from outstanding to 'very good' thereby causing him enormous loss by way of seniority and the consequential promotion.
19. The learned Counsel Shri Vijay Narayan appearing for the applicant in OA No. 466/98 submitted that the applicant ought to have been placed at Sl. No. 3, viz. below V. Moorthi and above Mr. K. Dhanavel. The learned Counsel would say that the applicant is senior to Mr. Dhanavel in the SCS. Narrating the position obtaining in the Rules and Regulations the learned Counsel would say that it is the job of the selection committee to classify the eligible officers in accordance with Regulations No. 5 (4), 5 (5) into different grades and place them according to their grading from 'outstanding' to 'good' in that order. The further contention of the learned Counsel is that the applicant has all along been graded as 'outstanding' in all the ACRs considered by the select committee. The learned Counsel would say that in respect of S/Shri V. Thangavel, V. Moorthi and K. Dhanavel, all of them had 'outstanding' gradings and this was accepted by the selection committee. However, the selection committee had not accepted the position obtaining in the case of the applicant and for reasons best known to them they had downgraded the applicant as 'very good', even though the applicant had earned 'outstanding' grade for the five years preceding the date on which the selection committee met. The learned Counsel also placed reliance on the decision of the Supreme Court rendered in the case of R.S. Das v. UOI, AIR 1987 SC 593=1987(2) SLJ 56 (SC), wherein amendment to Regulation 5 has been challenged. Therein, the Supreme Court had dismissed writ petition on the ground that categorisation of members of the SCS officers is to be done purely based on the basis of entries available in the character rolls and therefore there is hardly any discretion for the selection committee to disregard the entries contained in the Character Rolls of the officers considered by the Committee. The learned Counsel would say that applying the above ratio, the applicant is entitled to succeed as the applicant has been categorised as 'outstanding' in all his ACRs for the relevant period. That apart the principle of check as per Regulation No. 5 is to secure the best possible incumbents to the IAS is based on merit only. He ever the checks and balances have been provided, viz, that the services record of all eligible officials whose names are included in the proposed select list and the records of even those who are not selected are again scrutinised by the State and the Union Government apart from the UPSC and only thereafter a final shape is given to the select list. It is the contention of the learned Counsel that if the selection is made in an arbitrary manner, the Courts have the power to strike down and that is an adequate safeguard against the arbitrary exercise of power. The learned Counsel emphasised the point that the applicant possessed an unblemished record of service and the select committee had erred in grading the applicant as 'very good' which is arbitrary and is not in accordance with the guidelines laid down by the Apex Court in para 30 of the judgment cited supra (AIR 1987 SC 593). The learned Counsel prayed that the relief sought for by the applicant be granted.
20. We have heard Shri K. Kulandaivelu, the learned Counsel appearing for the UPSC, Mr. Vaidyalingam, the learned senior standing Counsel for the Central Govt. and Mr. N.S. Nandakumar, the learned senior standing Counsel for the State Government. The learned Counsel appearing.for the official respondents have reiterated the averments in the reply.
21. We have asked the learned Senior Standing Counser for the State Government to produce the records for our perusal, including the ACRs of the applicants. We have perused these records.
22. Though private respondents have been impleaded as party respondents and have also been served they have not chosen to file any reply for reasons best known to them. However, we have heard the learned Counsel appearing for the respective private respondents in these OAs who made their oral submissions at the time of argument.
23. Having heard the learned Counsel for the applicants as also the learned Counsel for the official respondents and having perused the relevant records, we are of the view that it is necessary to traverse the entire details of the case, right from the initial stage when action was initiated to induct the SCS officers into IAS cadre based on the number of vacancies, in the year 1996.
24. At the outset, it may be noted that the Tamil Nadu Government - vide letter dated 7.3.1996 had informed the UPSC that the total number of existing and anticipated vacancies to be filled up during 1996-97 as eight (existing: 3, anticipated: 5). Further, in order to have an extra number of officers in the panel, it was decided to have two more officers in addition to the 8 vacancies. Thus a total number of 10 officers was proposed to be included in the select list of the year 1995-96. Consequently, as per the zone of consideration, 30 officers, along with their record of service, integrity certificate and a statement showing the period for which the ACRs are available in respect of each officers were sent to the UPSC. On receipt of the letter, the UPSC confirmed that the scheduled meeting of the selection committee will be held on 18.3.1996 at Madras. The Committee was chaired by Mr. B. Krishna Mohan, Member, UPSC and after its meeting on 18.3.1996 it recommended the following 10 officers in that order for appointment to the IAS, viz. S/Shri
Tmt. Kannegi Packianathan
P.M. Basheer Ahmed
M. Malik Feroze Khan
S. Karuthiah Pandian
25. The Tamil Nadu Government - vide their letter dated 25.3.1996 had informed the UPSC that they agree with the recommendations of the selection committee to include the names of 10 officers recommended by the selection committee for inclusion in the select list of the year 1996.
26. When the matter stood thus, a spate of complaints/representations followed, resulting in a letter from Tamil Nadu Government dated 3.7.1996 with the following observations :-
"3. From the above table it is clear that Tmt. Kannegi Packianathan, Thiru P.M. Basheer Ahmed and Thiru R. Sivakumar who have completed 15 years of service have been placed in the select list below Thiru V. Murthy, who has completed 13 years of service and below Thiru K. Dhanavel and Thiru S. Natarajan who have completed just 9 years of service. As a result, they lose in two ways. They will be appointed to IAS after Thiruvalargal K. Dhanavel and S. Natarajan who are far juniors in the State Civil Service and they will be getting only 4 (four) year weightage on par with their service juniors, but now seniors, by placement in the select list.
4. In view of the above, the State Government have decided to request the UPSC and the Government of India that necessary further action may be pursued to rectify the defects in select list and the senior State Civil Service Officers who had put in more number of years of service be given due consideration;"
The Union Government in their letter to the UPSC observed the following :-
"In the instant case the selection committee had looked to the ACRs of 1989-90 and 1994-95 in particular in respect of all officers to decide their relative grading. In the absence of ACRs for such long periods in respect of several years which were required to be reckoned with in particular, in respect of S/Shri K. Dhanavel and S. Natarajan the basis and validity of the grading given to them as 'outstanding' by the select committee appears to vitiate the entire selection process".
We further find that the Tamil Nadu Government had considered it necessary, in public interest to request the UPSC to have a detailed examination of the whole matter and take such remedial measures as per Regulation No. 7(2) of the IAS (Appointment by Promotion) Regulations, 1955. In pursuance of these communications received from different authorities, the UPSC had decided to reconvene the selection committee. Accordingly, the selection committee met again on 7/8-11-1996 at Madras under the Chairmanship of the same UPSC Member, i.e. Mr. B. Krishna Mohan. The selection committee after due deliberations had recommended the following officers in the order as stated therein for inclusion in the select list and for appointment to IAS. Here, it is pertinent to mention that the grading of Mr. Natarajan underwent a change from 'outstanding' to 'very good'. However, the grading of Mr. K. Dhanavel did not undergo any change. He retained the 'outstanding' grading.
27. The Tamil Nadu Government - vide their letter dated 21.11.1996 had forwarded the selection committee's recommendations to the UPSC and stated that they agreed with the said recommendations. Subsequently, the Union Government had also agreed with the final recommendations of the selection committee with the result the UPSC had approved the select list and the Union Govt. had informed the Tamil Nadu Government - vide letter dated 13.12.1996 stating that the UPSC had approved the select list for appointment to IAS - Tamil Nadu cadre by promotion as prepared by the reconvened selection committee in its meeting held on 7/8-11-1996. Therefore, they requested the State Government immediately to take necessary action and to forward suitable proposals for appointment to the service by Govt. of India. This was followed by subsequent notifications dated 30.12.1996 and 3.1.1997.
28. Having culled out the genesis of the entire matter in the preceding paragraphs, in respect of the OAs filed by the applicants, we find that, it is necessary to quote the relevant statutory provisions as has been obtaining in the IAS (Appointment by Promotion) Regulations 1955. Regulation 3 provides for constitution of a committee to make selection. Regulation 5 envisages the procedure as to how the list is to be drawn up. Regulation 5(4) is very relevant since it stipulates that the selection committee shall classify the eligible officers as 'outstanding', 'very good', 'good' or 'unfit' as the case may be , on an overall assessment of the relevant service records. Regulation 6 envisages about consultation with the UPSC, both by the State Government and the Union Government. Regulation 7 envisages about the role of the UPSC in finalising the select list.
29. We find that the Tamil Nadu Government had worked out the vacancy position and arrived at the number of 8 vacancies and added 20% (rounded to two) and informed the UPSC about the need to prepare a panel containing 10 officers for appointment to the IAS from among eligible SCS officers. While forwarding the proposal, vide letter dated 7.3.1996 the Tamil Nadu Govt. had also forwarded the service particulars of the SCS officers who came within the zone of consideration, viz. 30 and also a statement showing the period of the ACRs, as are available in the dossiers, A perusal of the annexure to the said letter had revealed that, whereas in respect of all officers who are on top of the consideration list, the ACR dossiers were kept up to March 1995; in the case of Kannegi Packianathan, (R-7 in OA 466/98) the ACR was kept only up to 13.7.1994, V. Thangavelu (R-4 in OA No. 466/98) up to 16.11.1994, K. Dhanavel (R-6 in OA No. 466/98) up to 27.4.1994 and in respect of S. Natarajan up to 29.9.1993. That apart, a perusal of the same in respect of officers below top 10 of the list would show that their ACR dossier were not even complete up to March, 1995. In this connection we hold that the ACR dossier forms the crucial document in respect of the top 10 officers who are mostly considered for appointment to IAS and therefore this aspect should have been gone into by the scrutinising authorities and therefore assumes greater relevance and importance. But, this has not been done at the appropriate level in a proper manner and this has led to a series of prized complications and would go to show that the claim made by the UPSC that they are an expert body and their action cannot be question, suffers badly.
30. Though the UPSC prized itself as an Apex Body as an expert body, it may be true that their judgment cannot usually be questioned. But, it is strange to note that the basic aspect of the matter that the ACR dossiers of the officers who are under active consideration for appointment to the IAS are complete in all respects has been lost sight of by the UPSC and we have no hesitation to hold that the UPSC had unquestionably failed in its exercise to check the records and this formed the basis for representation and complaints by the Tamil Nadu Administrative Service Officers Association on a later date. This only goes to show, beyond doubt, that their claim that they cannot do any wrong is proved as completely incorrect.
31. Thus, we have no hesitation to hold that the selection committee did not apply its mind ab-initio in a proper perspective on all aspects relating to the matter and they had erred in the first instance. This view of ours is also fortified by the fact that the Tamil Nadu Administrative Service Officers Association had sent a representation/complaint to the Union Government and after carefully examining the entire matter the Union Government had commented "in the absence of any ACR for such long periods in respect of several years which were to be reckoned with, in particular, in respect of S/Shri K. Dhanavel and S. Natarajan, the basis and validity of the grading given to them as 'outstanding' by the selection committee would vitiate the entire selection process" (emphasis supplied). It is also seen that Mr. K. Dhanavel and S. Natarajan occupied positions at Nos. 13 and 14 of the eligibility list. Since they were graded as 'outstanding' they were placed at Sl. Nos. 3 and 4 of the select list. This would show the extent of damage done to others by wrongly grading the person without even the availability of the relevant ACRs. This attitude of the selection committee appears to be whimsical and we have no hesitation to hold that the selection committee has not discharged its duties and responsibilities and also failed to exercise the Constitutional obligations as to how to form the opinion about the grading, specially keeping in view the service records of the applicants, in a manner befitting the status assigned to it.
32. Coming to the aspect of the Regulations, we find that Regulation 5(4) of the Regulations is clear in as much as it envisages that the selection committee shall classify all the eligible officers based on the overall assessment made in the service records. When Regulation 5 (4) was challenged before the Supreme Court in R.S. Dass v. VO1 and Ors., (supra), the Apex Court had occasion to examine the issue in great detail and had held that the system of assessing the officers based on service records is reasonable and the selection committee is not free to categorise the officers of the SCS at its free will. The Supreme Court had further observed that there is no scope of applying different standards or test in preparing the list or to practice discrimination. Thus, it is evident that the selection committee is solely and wholly governed by the service records to categorise the officers as provided under Regulation 5 (4) and any missing link in the service records would make the entire process arbitrary and vitiated.
33. It is also very necessary to go into the reply filed by the Tamil Nadu Government. As soon as the selection committee completed its formality of preparing the select list, it is incumbent upon the State Govt., to forward a copy of the list along with its recommendations to the UPSC, with a copy as also to the Union Government. Thereafter, the Union Government is required to communicate their views to the UPSC about the select list prepared by the Selection Committee. Based on the said recommendations, the UPSC gives its approval to the select list as required under Regulation 7 (2) of the Regulations. In this connection it is of interest to note that the Tamil Nadu Government - vide letter dated 25.3.1996 had informed the UPSC about the select list prepared by the Committee in its sitting held on 18.3.1996 and had agreed with the said recommendations. But, subsequently when there were series of complaints and representations, there has been a sudden shift in the stand of the State Government and the same was conveyed to the UPSC - vide their letter dated 3.7.1996. (para 26 supra)
34. Thus the fact remains that the ACR dossiers of some of the officers who were under active consideration were not furnished to the selection committee which had a great bearing on the gradings assigned to them. Thereafter, the Tamil Nadu Government had merely agreed with the findings of the selection committee - vide their letter dated 25.3.1996, when they had opportunity to air their views as they did - vide letter dated 3.7.1996. This would clearly show that the Tamil Nadu Government had not acted in a bonafide manner, either at the time of sending the ACR dossiers of the concerned officers in the eligibility list or at the time of forwarding their recommendation after the select list was prepared by the selection committee.
35. In this connection we hold that, had there not been any complaint from Tamil Nadu Administrative Service Officers' Association, the Tamil Nadu Government would have even crowned some of the SCS officers who do not have the relevant ACR dossiers for the relevant period with 'outstanding' grading and would have allowed such SCS officers to score a march over persons who are genuinely meritorious. Thus, within a period of four months the recommendations had changed from total agreement into one of disagreement, requesting for a review of the entire selection to the UPSC and the Union Government to rectify the defects in the select list - vide paras 3 and 4 contained in para 26 supra.
36. With regard to the selection committee meeting held in November, 1996 for finalising the list, we find that the Tamil Nadu Government had agreed with the select list - vide their letter dated 21.11.1996. In this connection it is pertinent to note an important point in that, the select list prepared in March, 1996 and again in November, 1996 contained the same irregularities as observed in the letter of 3.7.1996. But the Tamil Nadu Government did not pursue the same line of argument in the letter of November, 1996. It is true that Mr. Natarajan who was placed at Sl. No. 4 in the select list prepared in March 1996, was placed at Sl. No. 10 in the select list prepared in November, 1996. But this change did not alter the situation in so far as others are concerned as observed by the Tamil Nadu Government in their letter of 3.7.1996. These aspects will only fortify our stand that there is absolute negation and non-application of mind on the part of the Tamil Nadu Government when it forwarded the select list along with the recommendation which formed the crucial phase in the process of consultation, as envisaged in Regulation No. 7 of the Regulations. This action of the Tamil Nadu Government would go to establish that their entire action suffered from the vice of non-application of mind, apart from being arbitrary.
37. In OA No. 238 of 1998 the applicant had alleged mala fides on the part of the Chairman of the selection committee and the relevant portion is extracted below :-
"I further understand and submit that the Chairman of the Committee has obtained some favour from the State Govt. by getting his son in-law Mr. Ramachandran, IAS, transferred and posted to very important sensitive post of Additional Collector (Development) at Coimbatore in violation of Election Code for placing the respondent officer at the top of the list. The UPSC after having found that Mr. Krishnamohan having committed some irregularities, they should not have sent him once again as Chairman of the Committee for preparing fresh list. Besides this even if that Mr. Krishnamohan was having minimum ethics and decency for preparing the list. Hence I respectfully submit that sending Mr. Krishnamohan as Chairman of the Committee is itself illegal and unjustified" (Page 36/37 of the 238/98)".
In the reply filed by the UPSC, there is not even a whisper controverting the above averment made by the applicant. It may be true that Mr. B. Krishnamohan, the then Member of the UPSC is no longer alive to defend himself. But, it is expected that the UPSC is duty bound to have touched upon this point which has a direct bearing on the functioning of the selection committee. It is not an allegation which has been made in a huff by an irresponsible person, but has been made by a responsible SCS officer (now in IAS) who had put in more than 15 years of service and has even quoted the incident with details about the persons. Neither the Tamil Nadu Government nor the UPSC have chosen to controvert the above said allegation with regard to mala fide attitude on the part of the then Chairman, who headed the selection committee meeting. Had the mist of mala fides or malice in action been cleared, the selection committee's proceeding cannot be termed as biased. But that has not been done. We therefore hold that, in the absence of rebuttal, the attitude of mala fides attributedio the selection committee, UPSC and the State Government cannot be brushed aside.
38. Coming to the aspect of factual details about the gradings/categorisation awarded to the applicants in these OAs, it has been urged by the respective Counsels appearing for the official respondents that the decision of the selection committee and that of the UPSC is final and the Courts cannot interfere with the gradings/categorisation awarded to the SCS officers. It was strongly urged that the Tribunal is not expected to play the role of an appellate authority or as an umpire. In support of their contention the respective Counsel for the official respondents have placed reliance on various judicial pronouncements. We have perused the said decisions referred to and relied on by the respective Counsel for the official respondents. We fully agree that, it is the job of the selection committee to consider the service records and arrive at the grading of the officers whose names are considered for inclusion in the select list. We further find that, the committee consisted of experienced officers drawn from different departments of the Government and also headed by a Member of the UPSC. It is also true that, their capability cannot be questioned. We also want to make doubly sure that, we do not arrogate ourselves that we are more competent so as to sit in judgment about the gradings given to the officers who are placed in the select list. But, at the same time Courts/Tribunals are empowered to examine and find out whether proper procedure in accordance with Regulations/Rules has been followed; if not, what are the infirmities which had crept in to vitiate the entire process, without actually commenting on the work done by the selection committee. But, in the instant case we find that in the very first instance the UPSC had failed to scrutinise the documents properly, as to what are the missing ACR dossier in respect of certain officers, particularly Mr. K. Dhanavel and Mr. Natarajan. This had certainly resulted in not only complaints/representations, but also on subsequent analysis after consideration of the missing ACRs, thegrading of one officer had totally changed from 'outstanding' to that of 'very good'. Under these circumstances, without commenting on the grading given earlier and later, we would like to observe that the absence to locate the missing ACRs in the first instance had vitiated the entire selection process and we hold that it cannot be said that all has been done in accordance with law/ rules/regulations. In this connection we would like to invite a reference to the decision of this Tribunal in OA 1068 of 1998 wherein the ACRs of the applicant therein were not properly scrutinised by the scrutinising authorities even though the ACR file was with the scrutinising authorities. The failure of proper scrutiny had resulted in the applicant therein being categorised as 'above average' even though in effect he was eligible to be graded as 'very good'. The DPC therein which met for preparing a panel for promotion to the next higher post was also swayed by the papers submitted by the scrutinising authorities wherein the applicant was graded as 'above average' and the DPC thought it fit not to include his name in the panel. In the above said OA, we had perused the ACRs of the applicant therein and we found that with regard to the overall assessment for the relevant period, the applicant ought to have been graded as 'very good' and, in that case we had set aside the entire DPC proceedings and ordered constitution of a fresh committee for considering the case of the applicant for promotion. Applying the above ratio to the case on hand, since the action of the Tamil Nadu Government, the selection committee and the UPSC bristled with lot of irregularities, we hold that this Tribunal has got every right to interfere with the proceedings of the selection committee when glaring injustice has been done to meritorious SCS officers.
39. We further find that, the UPSC and the Union Government had noticed the flaw in regard to the work done by the selection committee in its sitting held in March, 1996. Subsequently remedial measures were thought of. In this connection it is pertinent to mention that if one looks at the relevant regulations as they exist now, it is clear that there is no scope for reconvening the meeting of the selection committee. The relevant regulation only envisages preparation of a select list in accordance with the procedure laid down in Regulation No. 5 and approval as per Regulation No. 7. Admittedly, on receipt of the letter dated 3.7.1996 from the Tamil Nadu Government, the UPSC as also the Union Government were aware of the shortcomings in the then prepared select list. We further find that the UPSC had received a communication from the Union Government to the effect that it is necessary in public interest that the UPSC should exercise a detailed examination of the entire matter and take such remedial measures as deemed fit and proper in terms of Regulation 7 (2). Regulation No. 7 (2) plays a crucial role in the matter of preparation of the select list and the same is extracted below :-
"7 (2) If the Commission considers it necessary to take any changes in the list received from the State Government, the Commission shall inform the State Government of the changes proposed and after taking into account the comments, if any, of the State Government, may approve the list finally with such modification, if any, as may, in its opinion, be just and proper".
A careful reading of the above regulation would go to show that the Commission after satisfying itself of the need to make any change in the list received from the State Government may do so, after taking into account of the comments, if any, of the State Government as also the Union Government. It does not envisage any reconvening of the selection committee to draw up a fresh select list. It only speaks about giving approval to the list with such modification, if any, as may, in its opinion, be just and proper. There is no provision to reconvene a Selection Committee in the Regulations. Therefore, we have no hesitation to hold that the action on the part of the UPSC in reconvening the selection committee meeting for drawing up a fresh select list has not the approval of the above said Regulations. On this ground also the select list deserves to be set aside.
40. The applicants in OA Nos. 238 and 466 of 1998 have claimed that all along they have been uniformly graded as 'outstanding' during their entire career as SCS officers and in particular during the preceding five years of the selection committee meeting and therefore the grading/categorisation given to them by the selection committee as 'very good' is not correct and cannot be sustained. In order to examine this aspect of the case were inclined to peruse the ACR dossiers of the applicants and their gradings, as prepared by the State Government to facilitate the selection committee and we want to record our views on this aspect. In this connection, we would like to observe that our action on the fact of it may look as if we are sitting over the assessment of the selection committee as an appellate body. But, based on the other details of the case with regard to the controversy relating to missing ACRs, the decision to reconvene the meeting which ultimately had resulted in downgrading the assessment of at least one officer, we hold that it would not be totally incorrect to give some credibility to the claim of the applicants that there is not only bias but there is arbitrariness in the action of the selection committee. We reiterate that there is some truth in the assertion made by the applicants in these OAs. Therefore, in order to find out as to whether the action of the selection committee would come within the ambit of arbitrary action and consequently there is violation of Article 14 and 16 of the Constitution, needs examination. We have therefore no hesitation to observe that our action cannot be termed as if the Tribunal is acting as an appellate body, but is entitled to examine whether the methodology adopted is according to the rules or there is non-following of the rules/ regulations and whether is based on actual recorded facts or not.
41. Coming to the facts and circumstances of this case, we hold that we have to deviate from the oftrepeated axiom that the selection committee/DPC findings cannot be questioned by the Courts/Tribunals and that each committee has got a right to have its own norms etc. In this connection we would like to observe that, the interest of justice cannot be sacrificed at the altar of such empty axiom where prima facie it is established that the entire exercise of reconvening the selection committee meeting which proceedings have not only been questioned but had also resulted in the preparation of a new list. We, therefore hold that we are fully justified in looking into the gradings given to the applicants as decided by the selection committee and give our opinion on this aspect.
42. We further would like to observe that a perusal of the ACRs of the two applicants alone would not suffice. In fact 10 officers were included in the select list for appointment to the IAS and therefore any change in the gradings given to the applicants would adversely affect the interest of the other officers considered and included in the select list. Though we are compelled to go into the details of the gradings given to the applicants, we refrain from passing any specific remark, except holding that the whole exercise is required to be done afresh in accordance with the rules/regulations on the subject. We, therefore once again reiterate that this Tribunal has got the right to interfere with the proceedings of the selection committee when it is apparent that injustice has been done to the officers considered by it and which fact has also been proved beyond doubt as incorrect procedure has been followed.
43. With regard to the applicant in OA No. 238 of 1998 and OA No. 781 of 1998 we have perused the relevant ACRs and we find that he has been graded as 'outstanding' for four years and for one year as 'very good'. In this connection we would like to observe that the reporting officer for the relevant year had graded the applicant as 'outstanding', but the reviewing officer/scrutinsing officer had down graded the applicant as 'very good'. But no reasons have been adduced by the reviewing officer in the ACR for arriving at such grading. In this connection we would like to invite a reference to the decision of the Hon'ble Supreme Court reported in 33 ATC 217, 1999(3) ATJ 580, wherein it has been held that where there is fall in standard from 'outstanding' to 'very good' then the individual officer concerned should be informed of the same and he should be given an opportunity to represent against it. The competent authority on receipt of the representation shall apply its mind and after a careful consideration either may choose to allow it to stand or modify the same concurring with the reporting officer. But, in this case the applicant has not been informed of the fall in standard. The Hon'ble Supreme Court in the above said decisions had held that if the fall in standard is not communicated to the officer concerned that would amount to violation of the principles of natural justice and such report indicating the fall in standard should not be acted upon. In the instant case we find that the applicant has not been given an opportunity to represent against the fall in standard and this has adversely affected him. Therefore applying the above ratio to the case on hand, we have no hesitation to hold that, the selection committee had erred in categorising the applicant as 'very good', especially when the fall in standard has not been communicated to the applicant. This principle has been lost sight of by the selection committee and applying the ratio of the above decision, the proceedings of the selection committee deserves to be set aside. On this score also the applicant is entitled to succeed.
44. With regard to the applicant in OA No. 466 of 1998 we have perused the ACRs of this applicant for the relevant period which were considered by the selection committee. On perusal we find that this applicant has been graded as 'outstanding' for all the five years period considered by the selection committee. But we are shocked to find that this applicant has been graded as 'very good'. We fail to understand as to how and on what basis this applicant has been categorised as 'very good'. In this connection we would like to invite a reference to the observations of the Apex Court rendered in the case of R.S. Doss v. UOl and Ors., (supra) and the relevant portion is extracted below :-
"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 Regulation 5. There is no scope for applying a different standard or test in preparing the list or to practice discrimination". Applying the above ratio to the case on hand, we have no hesitation to hold that, the selection committee had functioned according to its whims and fancies which is deprecated and we therefore hold that the selection committee has not applied its mind to ACRs made available to them in a proper perspective. On this ground also the applicants are entitled to succeed and the impugned orders deserve to be set aside.
45. In the light of the discussion above, to sum up, our conclusions are, as indicated below, infra :-
(a) The applicant in OA Nos. 238 and 781 of 1998 had alleged bias and malafides on the part of the selection committee, which has not been rebutted by the official respondents and under such circumstances it has to be construed as a confession by the official respondents. In this connection we would like to invite a reference to the decision of the Hon'ble Supreme Court in Jayachand v. West Bengal, AIR 1967 SC 483, wherein Their Lordships have observed as follows :-
"An administrative action will be declared to be had on the ground of mala fide it the motive behind the action is not honest, malafides, in the narrow sense, would those cases where motive force behind an administrative action is personal animosity, spite, vengence, personal benefit to the aulliuiity itself or its relations or friends.
Again in Pratap Singh v. State of Punjab, AIR 1964 SC 72 the Supreme Court had observed that administrative action should be taken against an individual for satisfying private or personal grudge of the authority". In the instant case we find that the applicant has alleged bias and mala fides against Late Mr. Krishna Mohan, the Chairman of the Selection Committee for conferring unintended benefit to three officers. The Supreme Court again in a catena of decisions with regard to malafides had observed as follows:-
"Where malafides are alleged, it is necessary that the person against whom such allegations are made should come forward with an answer refuting or denying such allegations. For otherwise such allegations remain unrebutted and the Court would in such a case be constrained to accept the allegations so remaining unrebutted and unanswered on the test of probability". Applying the above ratio to the case on hand we hold that when once malafides are attributed to the member(s) of the selection committee and when it has not been rebutted, the presumption is that malafides alleged stand proved. We would like to observe that when allegations of bias and mala fides are attributed against a person in the selection committee that person ought not to have been associated with the proceedings for ensuring justice and fairplay. But in the instant case we find that the same person against whom malafides and bias has been attributed was constituted as Chairman of the selection committee on both the occasions, viz. during March and November, 1996 which is opposed to all canons of law and justice. We therefore hold that on this ground alone the entire selection committee proceedings are liable to be set aside.
(b) The UPSC had also blatantly erred by reconvening the same selection committee and by doing so they have exceeded the jurisdiction. This action of the UPSC is violative of Regulation No. 7(2) of the regulations and therefore the action of the UPSC in reconvening of the same selection committee is bad in law and opposed to the above regulation. Therefore on this ground also the impugned selection proceedings are liable to be set aside. That apart, when malafides have been attributed against the Chairman of the selection committee, the UPSC ought to have constituted a fresh selection committee for ensuring justice and fairplay. But this has not been done. Therefore on this ground also the selection committee proceedings are liable to be set aside.
(c) With regard to exercise of power as to whether there is arbitrariness in the proceedings, apart from the attitude of bias and whimsical attitude of the selection Committee and whether the Tribunal has jurisdiction to interfere with the proceedings the selection committee we gave our anxious consideration to the above point. In this connection we would like to observe that the selection committee when it met during March, 1996 had even categorised some officers as 'outstanding' even without the records. But, when the matter was taken up by the State Government during July, 1996, the same selection committee had found that they had committed some mistake and in the case of Mr. Natarajan it had brought him down to 'very good' from 'outstanding'. When we perused the relevant file we are astonished to find out as to how and on what basis initially the said Mr. Natarajan was categorised as 'outstanding' and on what basis he was down graded as 'very good' and especially in the absence of records in the first instance. Therefore the contention of the UPSC that their actions are infallible, is belied and their contention that this Tribunal is not competent to sit in judgment over the proceedings of the selection committee has no substance and has no merit. That apart there is not even whisper in the file as to how and on what basis it has prompted to categorise Mr. Natarajan as 'outstanding' in the first instance and within another four months there is a sudden shift in the stand of the selection committee. This would clearly establish that the committee was biased to favour an individual which amounts to arbitrariness and suffers from the vice of non-application of mind, apart from colourable exercise of power. On this ground also the impugned proceedings are liable to be set aside. In this connection we would like to invite a reference to the observations of the Apex Court rendered in the case of R.S. Dass v. UOI (supra) which reads as follows :
"Where power is vested in high authority there is presumption that the same would be exercised in a reasonable manner and if the selection is made on extraneous considerations, in an arbitrary manner, the Courts have ample power to strike down the same and that is an adequate safeguard against the arbitrary exercise of power".
Applying the above ratio to the case on hand we observe that the applicants have established beyond doubt that the selection committee had acted in a mala fide/biased manner and has been swayed by extraneous considerations and hold that this Tribunal has got every right and power to interfere in the proceedings of the selection committee in view of the fact that the entire selection committee proceedings are eroded by arbitrariness, whimsical, colourable, exercise of power, apart from the vice of mala fides/bias. We therefore hold that on this ground also the impugned selection committee proceedings are liable to be set aside,
(d) With regard to assigning of seniority in pursuance of inclusion in the select list for appointment to IAS, we would like to observe that there has been a deviation from the past practice/convention. We, therefore hold that such diametrically opposite views held on the same subject within a span of couple of months and that too for a particular select list, would establish that this deviation has been invented just to favour some junior officers and for which no reason has been offered by the State Government. We therefore hold that this action of the official respondents suffers from the vice of arbitrariness, apart from colourable exercise of power.
(e) When there is fall in standard, the same ought to have been communicated to the officer concerned. But this has not been done in the case of the applicant in OA No. 238 and 781 of 1998. In a catena of decisions the Apex Court had held that if fall in standard is not communicated to the official concerned, then it cannot be acted upon and the same has to be ignored. But this principle has not been followed by the selection committee and on this ground also the entire proceedings of the selection committee stand vitiated.
(f) In respect of the applicant in OA No. 466 of 1998, when the selection committee chose to categorise the applicant as 'very good', instead of 'outstanding', there is no material available on record to categorise the said officer as 'very good', especially when the decision as to categorisation has to be based on the ACRs of the officer concerned. This applicant in his ACRs has been graded as 'outstanding' for the relevant period which were considered by the selection committee. Therefore the action of the selection committee is arbitrary and establishes the act of favouritism in respect of others. This would go to show that there is colourable exercise of power on the part of the selection committee. The attitude of the Tamil Nadu Government and the Union Government in not pointing out this while forwarding their recommendations, as provided under Regulation 6, would only make it worse. On this ground also the entire proceedings stand vitiated.
(g) The official respondents have failed to follow Regulation 3(b) of IAS (Regulation of Seniority) Rules, 1988. We have no hesitation to hold that the official respondents have deliberately omitted to follow the above regulation to favour some officers, which action also suffers from the vice of arbitrariness, discrimination and amounts to colourable exercise of power.
Additional legal discussion by : The Hon'ble Shri D.V.R.S.G. Dattatreyulu, Member (J.)
46. I fully read the judgment written by my learned Administrative Member, in consultation with me. I have no hesitation to state that my Learned Brother has taken utmost pains in analysing the various stages which culminated in questioning the select list in these OAs. The chronoligical approach and the individual discussion thereon, on each factual matrix, is completely done after a careful analysis and a thorough consideration both on facts as well as on law. I am in total agreement with the reasonings and findings/conclusions arrived at by my Learned Brother.
47. I am of the opinion that after hearing of the arguments of the learned Counsels appearing on both sides in these OAs and on the facts that gave rise to the filing of these batch of OAs, seeking interference by this Tribunal, I consider it my bounden duty to put on record some of legal propositions that occurred to my mind that requires to be considered.
48. After the advent of Republic of India, the Constitution of India is the cornerstone and guiding principle behind every legal, executive and judicial action. There are three stages in the administration, viz.
(a) Law has to be considered and to be passed by the Legislature
(b) Law has to be implemented by making the necessary rules and putting them in practice by the Executive;
(c) The said Law, whether it is according to the mandate of the Constitution and whether the executive had properly implemented the law within the parameters of the Constitutional provision, is the purview of the judicial review by the Judiciary.
The above would go to show that each act must be a bona fide act cementing all the three together so that it is only the Constitutional mandate which alone prevails/percolates in its execution in the Administration.
49. The basic feature of the Constitution of India is the Rule of Law, i.e. every action done by the State is to be scrutinised, with all the microscopic analysis, to see as to whether the action was done in consonance with the law of the land. In this behalf the matter that is referred to is, whether the act done by the UPSC in this particular case is in accordance with law or not. The factual aspects of the first finding by the selection committee of the UPSC, then convening of the selection committee by the UPSC again at the behest of intervention by the Union Government on the recommendations made by the State Government are to be scrutinised under the legal aspect and its implications thereon, as to whether that action is done in accordance with law or not. The main stand of the official respondents in these batch of OAs is that the Courts/Tribunals cannot sit as an appellate authority over the findings arrived at by the selection committee of the UPSC. The law envisages in the judicial perspective the following :-
(c) extraordinary judicial remedies as provided under Article 226 and Article 32 of the Constitution
The scope of appeal is, scrutinising the evidence on record and to find out whether the conclusions arrived at by the authorities from which the appeal is preferred would stand satisfied with reference to the material that was produced in that particular case, and either to confirm the findings arrived at, modify the findings arrived or set aside the findings that has been arrived at. Review contemplates that if an order is sought to be reviewed basing on the question that there is an error apparent on record or there is some mistake in the production of necessary materials before the Court, then the order is sought to be reviewed by the reviewing authority. One more aspect is the revision. Revision envisages, if the order is not according to law or beyond the scope of law, then revision arises. That much with regard to appeal, review and revision.
50. As regards the averment of the Constitutional remedies under Article 226 and Article 32 of the Constitution, the judicial review is to be done of the executive action. In this process the Constitutional mandate of discharging the duties by the Executive have to be investigated either by Courts/Tribunals, considering the ambit and scope, as to whether the methodology adopted by a particular Constitutional Functionary (in this case the UPSC) is according to the Fundamental Rights guaranteed to the employees or not. Therefore the entire analysis in these batch of OAs done by my Learned Brother has to be clarified, as the said analysis is made under Articles 226 and 32 of the Constitution of India, in order to find out whether the findings have been arrived at keeping in mind the parameters and the guidelines, the standard approach to be followed in coming to the decision with regard to the gradings given to the officers considered by the Selection Committee. ThisTribunal is not expressing any opinion as to what gradation/categorization each officer is entitled to. This is also not within the purview of the Tribunal. What all the Tribunal has done in this particular case is to find out whether the
grading/categorisation given is based on the material to be considered in order to arrive at the particular gradation or not; in other words, to see whether there is any violation of the guidelines that formed the basis with regard to categorisation/grading of the officers considered by the Selection Committee.
51. In order to appreciate the above aspect my learned Brother had already referred to the decision of the Apex Court rendered in the case of R.S. Dass v. UOI (supra). Para 27 of the said judgment reads as follows :-
"There are, therefore, adequate checks and safeguards at different stages by different authorities. But if any dispute arises with regard to the arbitrary exclusion of a senior member of the State Service, the matter can always be investigated by perusing his service records and comparing the same with the service record of officers who may have been preferred and that would certainly disclose the reasons for the supersession of the senior officer. It is true that where merit is the sole basis for promotion, the power of selection becomes wide and liable to be abused with less difficulty. But that does not justify presumption regarding arbitrary exercise of power. The machinery designed for preparation of select list under the regulations for promotion to All India Service, ensures objective and impartial selection. The Selection Committee is constituted by high ranking responsible officers presided over by Chairman or a Member of the UPSC. There is no reason to hold that they would not act in a fair and impartial manner in making selection. The recommendations of the selection committee are scrutinised by the State Government and if it finds any discrimination in the selection it has the power to refer the matter to the Commission with its recommendations. The Commission is under a legal obligation to consider the views expressed by the State Government along with the records of officers, before approving the select list. The selection Committee and the Commission both include persons having requisite knowledge, experience and expertise to assess the service records and ability to adjudge the suitability of officers. 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 reasonable 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 safeguard against the arbitrary exercise of power".
52. I would therefore like to add in addition to what has already been stated by my Learned Brother that it is the mandatory obligation on the part of the Tribunal to find out whether there is arbitrariness or extraneous consideration that have formed the basis/ foundation in coming to the conclusion as to the fixation of gradation/categorisation of the officers considered by the Selection Committee. In this connection I would like to observe that my Learned Brother has also recorded the reasons for the arbitrariness/extraneous consideration by the Selection Committee. Therefore the stand of the UPSC that this Tribunal cannot interfere has no foundation or substance and it has been rightly held by my Learned Brother that this Tribunal has got every right to set right the injustice done when there has been arbitrariness/extraneous consideration by the selection committee which has been established beyond doubt in these batch of OAs.
53. Coming to the question of checks and balances it is to be seen with reference to the judgment cited supra, wherein it is stated that the recommendations of the selection committee are to be viewed in the following angle, viz.
(a) the recommendations of the selection committee are scrutinised by the State Government;
(b) if the State Government finds any discrimination in the selection, it has the power to refer the matter to the UPSC, with its recommendations;
(c) the UPSC is under legal obligation to consider the views expressed by the State Government along with the records of the officers considered for selection (emphasis supplied), before approving the select list.
Therefore here, in the process of analysis made by my Learned Brother, it is to be seen that the first meeting of the selection committee took place on 25.3.1996. In this connection it is pertinent to mention that some records of some of the SCS officers were not made available by the State Government to the Selection Committee for reasons best known to them. This is one of the infraction done by the State Government and another infraction committed by the Selection Committee in arriving at the grading/categorisation that were given in the original select list. What a fallacy is this ? Did the UPSC in its reply explain this point, if so why it has acted like that ? This infraction of the Constitutional mandate depicts the entire episode as to the manner in which the UPSC has acted, requiring this Tribunal to interfere with the proceedings of the Selection Committee.
54. The second stage is that the State Government woke up and made its recommendations by their letter in July, 1996 by which it has been brought to the notice of the selection committee that the gradings/categorisation arrived at by the UPSC does not conform to the standards of the records or length of service of the SCS officers considered by the selection committee. Therefore, these later recommendations had prompted the Union Government to make a request to the UPSC stating that the entire selection committee proceedings would stand vitiated in view of the irregularities alleged against the selection committee by the Tamil Nadu Administrative Service Officers' Association in the matter of selection of SCS officers for inclusion in the select list for appointment to JAS. The finding that the first selection committee has not acted according to the rule is the seal that has already been put on it by the Union Government. I am in total agreement with the conclusion arrived at by my Learned Brother on the above aspect.
55. The next stage is that the committee is to be reconstituted. The State Government had sent the same list. But the UPSC has not constituted a fresh committee and the same committee was reconvened to consider the same officers on 7/8-11-1996. Here I would like to observe that neither the State Government nor the UPSC had acted impartially, with genuineness on its part. In this connection I have no hesitation to hold, that the same recommendations will be made by the Committee which met in March, 1996 will play a larger part, for the simple reason that the same committee was reconvened against whom mala fides were attributed. In this connection I would like to observe that my above conclusion is fortified by the decision of Their Lordships of the Apex Court rendered in the case of State ofBihar and Anr. v. Bat Mukund Sah and Ors., 2000 SCC (L & S) 489. In the above said case the recommendations that have to be made by the High Court with regard to selection of District Judges to Government were considered and the relevant portion is extracted below :-
"24. Appointment of persons to be and the posting and promotion of District Judges in any State shall be made by the Governor of the State under Article 233 (1) in consultation with the High Court exercising jurisdiction in relation to such State. Sub-article (2) thereof provides that a person not already in the service of the Union or of the State shall only be eligible to be appointed as a District Judge if he has been for not less than 7 years an advocate or a pleader and is recommended by the High Court for appointment. It is therefore obvious that eligibility of appointment of persons to be District Judges by direct recruitment from amongst the Members of the Bar depends entirely on the recommendation of the High Court. The State Government has no power to appoint any person as a District Judge, except from the panel of names forwarded by the High Court. As stated, the decisions starting from Chandra Mohan v. State of UP have established the principle as a rule of law, that consultation between the Governor and the High Court in the matter of appointment of District Judges under Article 233(1) must not be empty formality but real, full and effective.
25. In Chandra Mohan v. State of UP, Subba Rao, C.J. speaking for a unanimous Court observed :
"The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say he can only appoint a person to the post of District Judge in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to suitability or otherwise of a person belonging either to the 'Judicial Service' or to the Bar to be appointed as a District Judge. Therefore a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him.....These provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein".
56. The reason for referring to and relying on the above said judgment is, that the recommendations of the State Government are to be weighed properly and should play a vital role in order to decide the grading/categorisation of the SCS officers considered by the selection committee. It is the State Government which is the appropriate authority and their service records prepared by the State Government, competent to report about the SCS officers should be the only guideline to the selection committee because the selection committee has no personal knowledge or direct assessment of the work of the SCS officers regarding whom grading/categorisation is made. If these recommendations are not considered or treated only as an empty formality, then there cannot be any other basis on which the selection committee can form its opinion regarding the grading/categorisation given to the SCS officers considered by it. In the instant case, as already observed, the selection committee even in the absence of relevant records in respect of some of the SCS officers had graded 'outstanding'. Therefore in all fairness the selection committee when it met for the second time ought to have considered the mistake committed by them in the first instance and ought not to have given room for mala fides or extraneous consideration or arbitrariness in the matter of selection. But the same irregularities persisted and the State Government had agreed to the select list. This would go to show that both the State Government and the selection Committee had committed another Constitutional infraction here. Therefore the checks and balances as envisaged in the decisions cited supra have not at all been followed by the selection committee in this particular selection resulting in injustice to the applicant and amounted to violation of Articles 14 and 16 of Constitution, calling for interference by this Tribunal. That much with regard to checks and balances in this case.
57. Coming to the aspect of propriety of having the same person as Chairman in the second meeting which met during November 1996, my Learned Brother had already expressed his opinion with regard to the grading/categorisation given by the selection committee even without the records of some of the SCS officers considered by the selection committee. Under such circumstances the question that arises for my consideration is whether such a person against whom mala fides and irregularities have been attributed, can he be associated with as Chairman of the same selection committee. The answer is 'no'. Under such circumstances I of the firm opinion that such a person has no moral authority or legally also has no right to head as Chairman of the same selection committee once again. In this connection I would like to observe that propriety and fairplay are the embedded Constitutional safeguards in the service career of officers in order to consider their promotion to the IAS. In this behalf the decision of Their Lordships of the Supreme Court rendered in State of WB and Ors. v. Sivananda Pathak and Ors., 1998 SCC (L & S) 1402 requires to be referred to. The said decision dealt with the case of bias. Therein in the first instance a single Member had pronounced the judgment. Subsequently the Division Bench chose to set aside the single Judge's order. Subsequently the single Judge gave another ancillary relief to the petitioner therein. The Apex Court in the said decision had observed as follows :-
"22. An appeal against this judgment was disposed by a Division Bench which included Mr. Justice Ajit Kumar Sengupta. The question which therefore arises is whether Mr. Justice Ajit Kumar Sengupta could sit in the Division Bench to decide the appeal against the judgment.
23. All judicial functionaries have necessarily to have an unflinching character to decide a case with an unbiased mind. Judicial proceedings are held in open Court to ensure transparency. Access to judicial record by way of inspection by the litigant or his lawyer and the facility of providing certified copies of that record are factors which not only ensure transparency but also instil and inspire confidence in the impartiality of the Court proceedings.
24. Unlike suits, proceedings under Article 226 of the Constitution are not conducted strictly following the provisions contained in the Code of Civil Procedure but are held in accordance with the procedure devised by the High Court itself under which a fair hearing is provided to the parties concerned before a decision is rendered. In other words, principles of natural Justice are observed strictly in letter and spirit. One of the requirements of natural justice is that the hearing should be done by a Judge with an unbiased mind.
25. Bias may be defined as a preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction. It is in fact a condition of mind, which sways judgments and renders the judge unable to exercise impartiality in a particular case.
26. Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject matter in dispute, or policy bias etc. In the instant case we are not concerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinacy.
27. Judges, unfortunately, are not infallible. As human beings they can commit mistakes even in the best of their judgments reflective of their hard labour, impartial things and objective assessment of the problem put before them. In the matter of interpretation of statutory provisions or while assessing the evidence in a particular case or deciding questions of law or facts, mistakes may be committed bonafide which are corrected at the appellate stage. This explains the philosophy behind the hierarchy of Courts. Such a mistake can be committed even by a Judge of the High Court which are corrected in the letters patent appeal, if available.
28. If a judgment is overruled by the higher Court, the judicial discipline requires that the Judge whose judgment is overruled must submit to that judgment. He cannot in the same proceedings or in collateral proceedings between the same parties, rewrite the overruled judgment. Even if it was a decision on a pure question of law which came to be overruled, it cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that the judgment of the higher Court which has overruled the judgment not only binds the parties to the proceedings but also the Judge who had earlier rendered that decision (emphasis supplied). That Judge may have his occasion to reiterate his dogmatic views on a particular question of common law or Constitutional Law in some other case but not in the same case. If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy"
58. Applying the above analogy to the case on hand, I find that the Chairman who prescribed over the second meeting is the same Chairman who had presided over the selection committee proceedings in the first instance. That apart even according to the Union Government the list prepared under his Chairmanship was also found to be vitiated in the first instance. But, astonishingly the same Chairman again presides over the selection committee proceedings. Under such circumstances, the question posed by me are as follows:-
(a) Can a different findings be expected?
(b) Can be impartial assessment be made?
(c) Is the selection safe in such circumstances?
(d) Whether the said officer who had given different findings with regard to categorisation of the officers earlier is correct?
The answer for the above said questions can only be in the negative. I have no hesitation to hold that the act done by the selection committee is not a judicial act, strictly, but it is a quasi-judicial act, which is prone for judicial review and if the canons of standards arc violated, the findings stand vitiated. I therefore hold that the same Chairman presiding over the selection committee proceedings for the second time when it met during November, 1996 would vitiate the entire selection proceedings, agreeing with my Learned Brother's opinion and findings.
59. I would like to conclude my reasoning in this judgment by referring to the prophetic sentiments expressed by His Lordship Hon'ble Mr. Justice Sabayasachi Mukharji in R.S. Dass v. UOI and Ors. (supra), found echoed in these applications. The relevant portion is extracted below :-
"It cannot be said now-a-days if one is aware of the facts and currents of life that simply because categorisation and judgment of the service record of officers are in the hands of senior officers is a sufficient safeguard. There has been considerable erosion in the intrinsic sense of fairness and justice in the senior officers by all concerned. From the instances of conduct of many, some of senior officers and men in high position, it cannot be said that such erosion is only unjustified".
60. In the light of the discussion above, I am in full agreement with the judgment of my Learned Brother.
61. In the result, the applicants succeed and the following orders are passed :-
OA Nos. 238 and 781 of 1998
1. The impugned orders (i) F.No. 14015/22/96 AIS (I) dated 30.12.1996, (ii) F.No. 14014/10/97 AIS (I) dated 28.2.1997, as conveyed by the Tamil Nadu Government in letter No. 4030/97-1 dated 15.7.1997, are quashed.
OA No. 466 of 1998
2. The impugned Order No. 14014/17/97-AIS(I)dated 28.2.1997, asconveyed in GO Ms. No. 917 Public (Spl. A) Department dated 29.8.1997 is quashed.
3. The official respondents are directed to consider the case of the applicants, vis-a-vis the private respondents in these OAs, by constituting a fresh selection committee, for drawing up a fresh select list. The selection committee while drawing up the fresh select list shall bear in mind our conclusions/ findings, as also our observations contained in this order. The entire exercise shall be completed within three months of receipt of a copy of this order by the official respondents.
62. The OAs are allowed to the extent indicated above with no order as to costs.
63. Before parting with the case, we would like to record our appreciation for the painstaking efforts taken by the respective Counsels in presenting their case in a very lucid manner so as to enable us to appreciate the various aspects of the case in a proper perspective.
64. It is brought to our notice after the pronouncement of the judgment in the open Court that since the officers are already promoted to the IAS cadre and they are working as IAS Officers, the respective Counsels sought for clarification with regard to the final direction in these OAs. It is clarified as follows :-
"The promotion of the applicants and private respondents to the IAS cadre is not affected by this order. It stands as it is. The grading, seniority and the year of allotment to be given would form the subject matter to be considered by convening a selection committee."