Dr. Badri Narayan Tiwari vs Union Of India Through ...
2017 Latest Caselaw 2298 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 3
 

 
Case :- SERVICE BENCH No. - 15332 of 2017
 

 
Petitioner :- Dr. Badri Narayan Tiwari
 
Respondent :- Union of India and others 
 
Counsel for Petitioner :- Dinesh Kumar Singh, Diwakar Singh Kaushik
 
Counsel for Respondent :- C.S.C., A.S.G., Alok Kumar Tripathi, Rajnish Kumar
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Ravindra Nath Mishra-II, J.

1. Heard Sri H.J.S. Parihar, learned Senior Advocate, assisted by Sri D.K. Singh, learned counsel for petitioner; Sri S.B. Pandey, Assistant Solicitor General of India, for respondents-1 and 2, Sri Rajnish Kumar, Advocate, for respondent-7 and learned Standing Counsel for respondents-4, 5 and 6.

2. Petitioner, Dr. Badri Narain Tiwari, was a member of U.P. Provincial Police Services (hereinafter referred to as "UPPPS") having been selected through U.P. Public Service Commission (hereinafter referred to as "UPPSC") and appointed as Deputy Superintendent on 10.10.1989. He was confirmed on the said post on 01.07.1993 and promoted as Additional Superintendent on 10.01.2001. His date of birth is 02.09.1956. He was considered for appointment by promotion in Indian Police Service (hereinafter referred to as "IPS") under the provisions of Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as "IPS (Appointment by Promotion) Regulations, 1955") in 2012. In the list forwarded by U.P. Government to Union Public Service Commission (hereinafter referred to as "UPSC"), name of petitioner was at Sl.No. 40. On 22.08.2012, petitioner made representation to Secretary, Home, U.P. Government for correction of his grading in Annual Confidential Report (hereinafter referred to as "ACR") of 2005-06 and 2007-08 as "outstanding" and "very good" respectively in view of the fact that Reporting and Reviewing Authority so graded the petitioner but it was denied by Accepting Authority without assigning any reason, in violation of Government Order dated 28.03.1984. While the aforesaid representation was pending, Selection Committee held its meeting on 12.12.2012 and considered 68 officers of UPPPS for appointment by promotion in U.P Cadre of IPS against the vacancies of 2009, 2010 and 2011. Selection was finalized and select-list was notified in the Gazette dated 21.12.2012 in which petitioner's name did not find figure though persons junior to him were included therein. Subsequently, by order dated 14.02.2013, State Government allowed petitioner's representation dated 22.08.2012 upgrading his ACR of 2005-06 as "outstanding" and 2007-08 as "very good". Petitioner then moved a representation dated 14.02.2013 requesting for Review DPC in view of upgradation of his ACR for the years, 2005-06 and 2007-08. When no action was taken by respondents, petitioner filed an application under Section 19 of Administrative Tribunal Act, 1985 (hereinafter referred to as "Act, 1985') registered as Original Application (hereinafter referred to as "OA") no. 105 of 2013 wherein an interim order was passed on 23.08.2013 to the following effect:

"Having heard both sides and after perusal of the relevant records, we deem it just and proper to direct the respondents to keep one vacancy for the year 2010, if vacant and is carried forward for selection by DPC, which is going to be held on 29.08.2013 till disposal of the O.A. Accordingly, the prayer for interim relief is allowed."

3. OA no. 105 of 2013 was finally disposed of vide order dated 25.03.2014 and operative part thereof reads as under:

"In view of discussion made hereinabove, we direct the respondents to consider the name of the applicant for inclusion in the IPS cadre of U.P. on the basis of his upgraded ACRs, if not already considered in the DPC meeting held on 29.08.2013, against the Select List of 2010 for which the vacancy has been kept reserved by means of an interim order dated 23.08.2013."

4. Thereafter, Review Selection Committee was constituted under Regulation 3 of IPS (Appointment by Promotion) Regulations, 1955 for reconsideration of petitioner for inclusion in the select-list of 2010. Review Selection Committee held its meeting on 16.07.2014 and did not find petitioner fit to be included in the list of selected candidates and consequently petitioner's name was not included. Challenging the aforesaid decision of Review Selection Committee, petitioner filed Original Application no. 153 of 2015 seeking following reliefs:

"a. An order or direction, for quashing the decision of Meeting of Review Selection Committee dated 16/7/2014, headed by the Respondent No. 3, Union Public Service Commission, and consequential order dated 29/9/2014, passed by the Respondent No. 1.

b. An order or direction, directing the Respondents, to consider the petitioner's promotion from the post of Provincial Police Service (PPS) Officer to the post of Indian Police Service (IPS) Cadre for year 2010.

c. An order or direction, directing the Respondents, to promote the petitioner on the post of Indian Police Service (IPS) Cadre, with all consequential benefits.

d. Issue any other, order or direction which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, if any may also be granted."

5. After exchange of pleadings, Tribunal vide judgment, impugned in this writ petition, has found no merit in the challenge made by petitioner and accordingly dismissed OA. Hence, this writ petition.

6. Sri Parihar, learned Senior Advocate, contended that petitioner was found within the zone of consideration and field of eligibility for select-list of 2010. Five years' ACR ought to have been considered for Grading as per IPS (Appointment by Promotion) Regulations, 1955 and earlier average grading which was "good" would have changed to "outstanding", after upgradation and demonstrated the same as under:

Year

Earlier Grading

Revised Grading

2005-06

Good

Outstanding

2006-07

Outstanding

Outstanding

2007-08

Good

Very Good

2008-09

Good

Good

2009-10

Outstanding

Outstanding

7. He submitted that petitioner's average comes to "outstanding" inasmuch out of five ACRs, three are "outstanding", one is "very good" and one is "good", hence by no stretch of imagination, petitioner could have been categorized as "good", and thus his categorization as 'good' by Review Selection Committee was patently arbitrary and illegal and, therefore, non selection of petitioner is liable to be set aside.

8. From the stand taken by respondents, we find that in the earlier selection made by Selection Committee constituted under IPS (Appointment by Promotion) Regulations, 1955, petitioner was categorized "unfit". In the list of eligible candidates prepared in 2010 for 39 vacancies, he was at Sl.No. 40. Subsequently, after upgradation of entries, Review Selection Committee categorized him as "good" and did not find him entitled to be included in the select-list since persons of higher categorization or senior to him to the extent included in the list of eligible candidates were available. It is specifically stated that persons junior to petitioner were having better grading, and, therefore, petitioner could not find place in the select-list.

9. Learned counsel for respondents- 1 and 2 drew our attention to the reply filed on behalf of UPSC before Tribunal and in particular the reply contained in para 2.4, 2.5, 2.6. 4.1, 4.2, 4.6, 4.7. The stand taken by UPSC is that Selection Committee has to classify eligible Officers as "outstanding", "very good", "good" and "unfit" on an overall relative assessment of service record of eligible Officers as contemplated in Regulation 5(4) of IPS (Appointment by Promotion) Regulations, 1955. Thereafter Officers classified as "outstanding" shall first be placed in the select list and if still some vacancies are available, then Officers classified as "very good" and then "good". It is also said that ACRs of eligible officers are basic input but that is not the only material which is to be taken into consideration by Selection Committee and grading therein is not to be adopted mechanically but Selection Committee makes its own in-depth examination of service record of eligible officers, deliberate on the quality of officers on the basis of performance as reflected under various columns recorded by Reporting/Reviewing Officer/Accepting Authority in ACRs of different years, and, then, finally arrives at the classification to be assigned to each eligible officer in accordance with IPS (Appointment by Promotion) Regulations, 1955. While making an overall assessment, Selection Committee takes into account orders regarding appreciation for meritorious work done by concerned officers, penalties awarded to delinquent Officer, if any, or any adverse remarks communicated to them which even after due consideration of his representation have not been completely expunged. It is further said that as per Regulation 6 and 6A, State Government and Central Government also furnish their observations on the recommendations of Selection Committee and thereafter taking into consideration observations of State Government and Central Government and also requisite records received from State Government, UPSC takes a final decision on the recommendations of Selection Committee with or without modification in terms of Regulation 7 of IPS (Appointment by Promotion) Regulations, 1955.

10. With regard to process of selection followed in the case of petitioner, it is pointed out that for review of select-list of 2001-09 and to prepare yearwise select-list of 2009A, 2010 and 2011 meeting of Selection Committee was held on 26 and 27.12.2012. Petitioner found place in eligibility list prepared for the select list of 2010 where number of vacancies was 39, and eligibility list had a total number of 117 Officers. Name of petitioner was at Sl.No. 40. Selection Committee on an over all relative assessment of service record upto the period of 2009-10, assessed petitioner as "unfit" on the basis of his performance, hence he was not included in the select-list. Only six Officers junior to him were included in select-list of 2010. For the subsequent select-list, petitioner was not eligible being overage. The recommendation made by Selection Committee for the select-list of 2010 was approved by UPSC on 20.12.2012 and notified by Government of India Ministry of Home Affairs' Notification dated 21.12.2012. Subsequently, when ACR of petitioner for the year 2005-06 was upgraded from "good" to "outstanding" and for the year 2007-08 from "good" to "very good" vide Government Order dated 14.02.2013, meeting of Review Selection Committee was held on 16.07.2014 to reconsider petitioner for select-list of 2010. The service record of petitioner upto the period 2009-10 was examined by Review Selection Committee and on overall assessment, grading by Review Selection Committee was given as "good". Since Officers included in select-list were in higher grading than petitioner, he could not be included in the select-list of 2010 even after Review Selection Committee. This recommendation by Review Selection Committee was approved by UPSC on 22.09.2014 and Government of India vide letter dated 29.09.2014 intimated State Government that there is no change in the select-list of 2010.

11. Sri Parihar, learned Senior Counsel, contended, when five years' ACR was examined, i.e., 2005-06, 2006-07, 2007-08, 2008-09 and 2009-2010, wherein ACR Recording Officers have categorized petitioner as "outstanding" in three years and one year it is "very good" and one year it is "good", there is no scope for grading petitioner as "good" since three out of five being "outstanding", petitioner necessarily had to be graded as "outstanding" and any otherwise grading by Review DPC is patently arbitrary.

12. The argument pre-supposes that grading by ACR Recording Officers as such is binding upon statutory Selection Committee constituted under IPS (Appointment by Promotion) Regulations, 1955 and there is no scope of any assessment of performance by Selection Committee for the purpose of grading. With respect, we find that this argument is misconceived and contrary to law laid down by Supreme Court in Union Public Service Commission Vs. K. Rajaiah and others (2005) 10 SCC 15. Therein Court, after examining provisions of Regulation 5(4), said as under:

"That being the legal position, the Court should not have faulted the so called down gradation of the 1st respondent for one of the years. Legally speaking, the term "down gradation" is an inappropriate expression. The power to classify as 'outstanding', 'very good', 'good' and 'unfit' is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State Government authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large guided by the classification adopted by the State Government but, for good reasons, the Selection Committee can evolve its own classification which may be at variance with the gradation given in the ACRs. That is what has been done in the instant case in respect of the year 1993-94. Such classification is within the prerogative of the Selection Committee and no reasons need be recorded, though it is desirable that in a case of gradation at variance with that of the State Government, it would be desirable to record reasons. But having regard to the nature of the function and the power confided to the Selection Committee under Regulation 5(4), it is not a legal requirement that reasons should be recorded for classifying an officer at variance with the State Government's decision."

(emphasis added)

13. In a subsequent judgment, looking to the aforesaid backdrop of statutory provisions, applicable to appointment by promotion in All India Services, Supreme Court in M.V. Thimmaiah and others Vs. Union of India and others (2008) 2 SCC 119, held as under:

"... the recommendations of the Selection Committee cannot be challenged except on the ground of malafides or serious violation of the statutory Rules. The Courts cannot sit as an appellate authority to examine the recommendations of the Selection Committee like the Court of appeal. This discretion has been given to the Selection Committee only and Courts rarely sit in court of appeal to examine the selection of the candidates nor is the business of the Court to examine each candidate and record its opinion." (emphasis added)

14. We may notice at this stage that initially Regulations needs recording of reasons if a senior person is to be superseded but thereafter Regulations were amended in 1977 and requirement of recording reasons was taken away and a procedure of grading by Selection Committee as "outstanding", "very good", "good" or "unfit" was incorporated. After amendment, when certain senior persons were superseded without recording any reason, amendment of Regulation 5, a pari materia provision contained in Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as "IPS (Appointment by Promotion) Regulations, 1955") was challenged in R.S. Dass and others Vs. Union of India and others AIR 1987 SC 593. Court repelled the challenge and said that under amended Regulation 5, now Selection Committee is required to categorize eligible Officers in four different categories i.e., "outstanding", "very good", "good" and "unfit" on overall relative assessment of their service record. After categorization is made, Committee has to arrange names of Officers in the select list in accordance with procedure laid down in Regulation 5(5). In arranging the names of select list Committee has to rely inter-se seniority of Officers within each category. Court observed that this process of categorization based purely on merit may give a jump to a junior Officer if categorized "outstanding" over his senior categorized as "very good" or "good" or "unfit", but in the case of selection by merit, this cannot be helped. Court then further said:

"Where selection made on merit alone for promotion to a higher service, selection of an officer though junior in service in preference to his senior does not strictly amount to supersession. Where promotion is made on the basis of seniority, the senior has preferential right to promotion against his juniors but where promotion is made on merit alone, senior officer has no legal right to promotion and if juniors to him are selected for promotion on merit the senior officer is not legally superseded."

15. Relying on Gurdayal Singh Fiji Vs. State of Punjab and others AIR 1981 SC 2015, Court observed that a member of State Civil Service has no legal right of promotion. Instead, he has only right to be considered along with others. Even if a senior person is superseded for the reason that his junior Officer has been included in the select-list due to better categorization, for that purpose Selection Committee is not required to record any reason in view of amended statutory provision dispensing with the requirement of recording reasons. Court upheld dispensation of requirement of recording reasons and observed that if eligible officers are considered on merit in an objective manner, no Government Servant can claim to have a legal right to insist for promotion nor any such right is protected by Article 14 or 16 of Constitution. Article 16 does not insist that reasons should be recorded for non selection of a member of State Service. Court also said that principles of natural justice does not require an administrative authority or a Selection Committee or an Examiner to record reasons for the selection or non selection of a person in absence of a statutory provision and administrative authority is under no legal obligation to record reasons in support of its decision. There is no scope of applying principles of natural justice in the matter relating to selection of suitable members in State service for promotion to a higher service. Court said that Scheme of Regulation warrants exclusion of principle of audi alteram partem. In para 25 and 27 of the judgment, it further said:

"25. ... No vested legal right of a member of the State Civil Service who after being considered, is not included in the select list, is adversely affected, Non-inclusion in the select list does not take away any right of a member of the State Civil Service that may have accrued to him as a Govt. servant, therefore no opportunity is necessary to be afforded to him for making representation against the proposed supersession."

"27. ... But in view of the amendments made in Regulations under consideration providing for selection on the basis of categorisation of members of the State Civil Service into different categories on the assessment of their service records, principles laid down in Chothia's case are not applicable. After the amendment of Regulation 5 the Committee was under no legal obligation to record reasons for supersession of a senior officer and for that reason it did not record any reasons, therefore, the question of forwarding any reasons by the State Government to the Commission did not arise."

(emphasis added)

16. Apprehension of arbitrariness on the part of petitioner was repelled by Court, observing in para 28 of judgment, as under:

"28. The Appellants/Petitioners entertain an apprehension that in the absence of reasons the selection would be made in an arbitrary manner over-looking the claim of a senior officer eligible for promotion to the Indian Administrative Service. In this regard it was urged that selection on merit confers wide discretion on the authority making selection and in the absence of reasons there would be no objectivity and the members of the State Civil Service would receive discriminatory treatment by the committee. The scheme contained in promotion regulations and the criteria prescribed therein for preparing the select list do not justify any such apprehension. The principal object of the promotion system as contained in the regulations is to secure the best possible incumbents for promotion to the Indian Administrative Service which is the back-bone of the administrative machinery of the country. The efficiency of the administration in the Union as well as in the State largely depends upon the efficiency of the members of the Indian Administrative Service. Efficient public service is in public interest and the public interest is best secured if reasonable opportunity for promotion exist for all qualified members of the State Civil Service and only those who are found efficient and suitable in all respects are promoted. This object is sought to be achieved by the Regulations in prescribing merit as the sole test for promotion. In order to judge the merit the regulations provide for categorisation of eligible members of the State Civil Service on the basis of their service records which are scrutinised by the Committee consisting of high ranking officers of the State Govt. and the Central Govt. The service records of all eligible officers whose names are included in the proposed select list and the records of even those who are not selected is again scrutinised by the State Govt. and the Union Public Service Commission and only thereafter final shape is given to the selection list. There are, therefore, adequate checks and safeguards at different stages by different authorities. But if any dispute arise 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 Union Public Service Commission. There is no reason to hold that they would not act in fair and impartial manner in making selection. The recommendations of the selection committee are scrutinised by the State Govt. and if it finds any discrimination in the selection it has 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 Govt. 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."

(emphasis added)

17. In the present case, categorization of petitioner has neither been challenged on the ground of mala fide or that there is no objective assessment of suitability and merit by Review Selection Committee headed by a member of UPSC nor substantiated by placing any material on record. The challenge is confined on the own assumption on the part of petitioner that categorization of ACR Recording Officer in different years would be binding on the statutory selection committee constituted under IPS (Appointment by Promotion) Regulations, 1955 and it has to only mechanically draw an average of categorization made by ACR Recording Officers and thereafter to prepare select-list. This assumption is misconceived and has already been negated by Supreme Court in Union Public Service Commission Vs. K. Rajaiah and others (Supra), as noticed above. In that view of matter, we are in agreement with the view taken by Tribunal that judicial review in the matter of evaluation of performance by a statutory committee is not to be interfered by Court.

18. In the result, we find no merit in the writ petition. Dismissed.

Dt. 13.07.2017

PS