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TMI Blog1973 (9) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... en reg. 5(4) said that the list prepared in accordance with reg. 5(l) shall be reviewed or revised every year, it really meant that there must be an assessment of the merit and suitability of all the eligible members every year. Though the words used in reg. 5(4) were "review" and "revision", in the process of review or revision, a fresh assessment must be made of the merit and suitability of all the members remaining in the previous list and all other eligible members in the concerned service. If the criteria for selection were merit and suitability from among all the eligible members, then the field of selection must comprise of the entire category of eligible members of the service. Otherwise the selection would not be on the basis of merit and suitability among all the eligible members of the State service. There was no reason to give a go-bye to the word "all" in reg. 4(1) as the High Court had done. If merit and suitability should determine the choice and that seniority should become relevant only when merit and suitability were roughly equal, it was only proper that the fiell of choice should include all the eligible members of the service. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to lay down as a general proposition that whenever a selection was made on the basis of merit and suitability with due regard to seniority notice to a senior would be required if he was proposed to be passed over in favour of a junior on the ground of his greater merit and suitability. It would not be expedient to extend the horizon of natural justice involved in the audi alteram, partem rule to the twilight zone of mere expectations, however, great they might be. [806 FG; 807 EF] Per Beg. J : The correct view in conformity with the plain meanings of words used in the relevant rules was that the 'entrance' or inclusion test for a place on the select list, was competitive and comparative applied to all eligible candidates and not minimal like pass marks at an examination. The Selection Committee had an unrestricted choice of the best available talent, from amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority was the governing factor. A simple reading of reg. 5(2) clearly indicated this to be the correct view. The required number ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er called the "Recruitment Rules") that seniority should be the dominanant factor for making selection for inclusion in the list to be prepared under Regulation 5(l) and that merit and suitability are only of secondary importance. Regulations 4 and 5 of the Promotion Regulations read "4(1) Each Committee shall meet at intervals not exceeding one year and consider the cases of all substantive members of the State, Civil/Police Service who on the first day of January of that year, had completed not less than eight years of continuous service (whether officiating or substantive) in a post of Deputy Collector/Deputy Superintendent of Police. (2)Notwithstanding anything contained in subregulation (1), the Committee shall not ordinarily consider the cases of the members of the State Civil/Police Service who have attained the, age of 52 years on the first day of January of the year in which the meeting of the Committee is held: Provided that a member of the State Civil/Police Service whose name appears in the Select list in force immediately before the date of the meeting of the Committee shall be considered for inclusion in the fresh select list to be attained the age of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld tilt the scale. But, to say, as the High Court has done that seniority is the determining factor and that it is only if the senior is found unfit that the junior can be thought of for inclusion in the list is, with respect, not a correct reading of Regulation 5(2). 1 do not know what the High Court would have said had Regulation 5(2) said : "Selection for inclusion in the select list shall be based on seniority with due regard to merit and suitability". Would it have said that the interpretation to be put upon the hypothetical Sub-regulation (2) is the same as it put upon the actual Sub-regulation ? As I said Regulation 5(l) makes it obligatory that the Committee shall prepare a list of such members who satisfy the condition laid down in Regulation 4 and as are suitable for promotion. Now, who are the members who satisfy the condition laid down in Regulation 4 ? all substantive members of the State Civil/Police Service who had completed not less than eight years' continuous service. And, who are the members who are suitable for promotion ? Those members who were selected on the basis of their merit and suitability with due regard to seniority under Regulation 5 (2). N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the merit and suitability of all the then eligible candidates and make a fresh list of the required number of the most suitable candidates from among them. In other words, the purpose of the annual review Or revision of the select list is to prepare a list and to include therein the required number of the most suitable persons from among all the then eligible candidates. Proviso to Regulation 4(2) makes it abundantly clear that there must be a fresh select list every year by making a review or revision of the previously existing select list. By Regulation 4(2), a person who has attained the age of 52 years shall not be considered as an eligible candidate notwithstanding the fact that he is a substantive member of the service. Then the proviso to Regulation 4(2) says that if his name has been entered in the select list for the previous year, he might be considered for inclusion in the fresh select list for the next year, even if he has passed the age of 52 years. When Regulation 5(4) says that the list prepared in accordance with Regulation 5(1) shall be reviewed or revised every year, it really means that there must be an assessment of the merit and suitability of all the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligible members of the service. Otherwise, the selection will not be on the basis of merit and suitability from among all the eligible members of the State service. In other words, the inclusion of the name of a member in the select list for a year will not be an entitlement for inclusion in the select list for the suceeding year. A fortiori a member who has been assigned a rank in the select list for a year can have no claim for the same rank in the next year. Mr. Chagla, appearing for one of the respondents, contended that there is a distinction between promotion and selection. He said that under rule 9 of the- Recruitment Rules, 25 per cent of the posts in the Indian Administrative Service/Indian Police Service are reserved for the members of the State Civil and Police Services to be filled by promotion and that this will have no meaning unless the promotions are made on the basis of seniority subject to fitness. According to counsel, though merit and suitability would be, the criteria for selection from, the open market for the remaining 75 per cent, for promotion to the 25 per cent quota from the members of the State service, seniority subject to fitness should be the sole cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blished rule that promotion to selection grades or selection posts is to be based primarily on merit and not On seniority and that the principle is that when the claim of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is therefore available. These observations were relied on in N. P. Mathur and Others v. State of Bihar and Others(A. I. R. 1972 Patna 93) for understanding the scope of the rule under consideration in that case which ran as follows: "Appointment to the Selection Grade and to posts carrying pay above the time scale of pay in the Administrative Service shall be made by selection on merit wit due regard to seniority." (Rule 3(2-A) of the Indian Administrative Service (Pay) Rules. 1954) The Court said: "It is agreed on all hands that the post of Chief Secretary is a selection post from the officers in the super-time scale of pay and it is also agreed that rule 3 (2-A) of the Pay Rules applies. In those circumstances, it is clear that selection to the post of Chief Secretary will depend on merit, irrespective of seniority. In my opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a report is made under rule 9(2), the Central Government has power to direct the State Government to terminate the appointment. This would show that the power to terminate the appointment rests with the State Government; otherwise, there is no reason for sub-rule (3) of rule 9 of the Cadre Rules to say that the Central Government may direct the State Government to terminate the appointment. The sub-rule could very well have said that the Central Government may terminate the appointment. The fact that the State Government should terminate the appointment when the Central Government makes the, direction to do so, can be considered only as vesting a power to make the direction which it would not otherwise have but for the sub-rule. It -does not mean that the State Government would lose its power to terminate the appointment if the Central- Government does not make a direction. In other words, the vesting of the power in the Central Government to give a binding direction does not take away the power of the State Government as appointing authority to terminate the appointment. In the light of our conclusion, I do not think it necessary to express any opinion on the question whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itability when a fresh list has to be drawn up, and that, as far as possible, has to be done every year, the word "supersession" can only mean overlooking the seniority in the State service for inclusion in the list. I should have thought the expression "supersession" in the context is quite inapt, as it has overtones that seniority per se has some claim for preferential treatment. When you talk of supersession, it normally means that the person superseded has a preferential claim. But, ex hypothesi the selection is primarily on the basis of merit and suitability. Therefore, though strictly speaking, there can be no question of supersession when a senior is passed over, as the selection is based primarily on merit and suitability, the expression was used probably to indicate that seniority is a factor of great weight to be taken into consideration for inclusion in the select list Whatever that be, I do not think that in making selection or in reviewing or revising the select list, as a fresh list has to be prepared on the basis of merit and suitability of all eligible candidates including those whose names remain in the previous list, with due regard to seniorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared in December, 1967, when they were suddenly dropped from this list. Consequently, they filed petitions under Art. 226 of the Constitution in the Allahabad High Court for quashing orders of alleged reversion. These Writ. Petitions were referred to a Division Bench which decided them with the special appeals of Ganesh Singh Seth and Basant Kumar Joshi involving the same questions of law on similar facts. Ganesh Singh Seth and Basant Kumar Joshi have been members of the U.P. Civil (Executive Service). They were brought on the select list of the Indian Administrative Service in 1961 and 1962, under Regulations 4 to 7 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955. These two officers, who had officiated as District Magistrates for a number of years, had also been dropped from the select list for 1968 prepared in December 1967, after having continued in that list since 1961 and 1962. They had filed Writ Petitions against their alleged reversions which were dismissed by a learned Judge of the Allahabad High Court on 23-5-1968. Their special appeals were heard by a Division Bench with Writ Petitions of M. L. Capoor and K. N. Misra, because, as already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll prepare a list of such members of the State Civil Service as satisfy the condition specified in regulation 4 and as are held by the Committee to be suitable for promotion to the service. The number of members of the State Civil Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of the preparation of the list in the posts available for them under rule 9 of the Recruitment Rules or 10 per cent of the senior duty pos ts borne on the cadre of the State or group of States whichever is greater : Provided that, in the year ending on the 31st December, 1969, the, maximum limit, imposed by this sub-regulation, may be exceeded to such extent as may be determined by the Central Government in consultation with the State Government concerned. (2) The selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority. (3) The names of the officers included in the list shall be arranged in order of seniority in the State Civil Service : Provided that any junior officer who in the on of the Committee is of excepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service from the Select List to posts borne on the State Cadre or the joint Cadre of a group of States, as the case may be, shall be made in accordance with the provisions of rule 9 of the Cadre Rules. In making such appointments the State Government shall follow the order in which the names of such officers appear in the Select List : Provided that where administrative exigencies so require, a member of the State Civil Service whose name is not included in the Select List or who is not next in order in that Select List may, subject to the aforesaid provisions of the Cadre Rules, be appointed to a Cadre post if , the State Government is satisfied.......... (i) that the vacancy is not likely to last for more than three months; (ii) that there is no suitable cadre officer available for filling the vacancy. 9. Appointments to the Service from the Select List-(1) Appointment of members of the State Civil Service to the Service shall be made by the Central Government on the recommendation of the State Government in the order in which the names of members of the State Civil Service appear in the Select List for the time being in force. (2) It shall not ordinarily be necessary to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the promotion was to be made), except the Chairman who was to be either the Chairman or a Member of the Union Public Service Commission. It was urged that the entire process consisted of selection on the, basis of service records assessed by experts. It is difficult to conceive of any "list" between each candidate and all the others. Indeed the process of selection could hardly be spoken of as akin to the process of litigation, where two or more parties, who prefer claims to the same subject matter, have to be informed of each other's cases and issues on points in dispute are framed and then decided. Even if such a process of selection by assessment of merits could, conceivably be viewed as a whole series of disputes as to comparative claims it is quite impracticable to hear each candidate as against all the others after giving each the results of assessments of merits of all the others with access to the materials on which these are based. Candidates are not expected to sit in judgment over evaluations of their own merits and of others. The "Cult of the Ouasi", as it has been derisively called by those who are skeptical of its extensions beyond certain reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iewed or revised in such a way as to supersede some eligible candidate. The learned Judge held that the words "review" and "revision" were used in Regulation 5(4) and (5) in a nontechnical broad sense of annual fresh preparations of the lists. According to the learned Judge, the second test mentioned above, that of a "lis", was lacking here. The Division Bench had also held that the function of the Selection Committee was not quasi-judicial because it was simply recommendatory or advisory. This meant that the process failed to satisfy the first test mentioned above of judicial or quasijudicial action. Both these grounds for distinguishing the process undergone from quasi-judicial action are sound. It was urged that the Division Bench had over-looked the effect of Regulation 7, sub-Regs.(3) and (4) which made the list final when approved by the Commission and that it was to remain in force until it was reviewed and then revised by another finally approved list. Hence, it was contended, on behalf of the, Respondents, that the function acquired attributes of a quasi-judicial action at least when the matter was sent to the Public Service Commission in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Union of India and the State of U.P., it was urged that a person whose name is brought on the select list for a particular year does not acquire arty right except to remain on the list until it is reviewed and revised. It was submitted that this was not an absolute or unconditional or indefeasible right to remain on the list and that no quasi-judicial proceeding could be demanded to defend a right which did not exist or was so fluid or transitory in character. It was urged that. as the criteria for being placed on the selection list were entirely subjective, no candidate could claim a right to have his merits assessed every year by applying the same uniform, invariable, objective tests. The Solicitor-General relied on cases where it had been held that appointment to selection posts was not a matter of right. These were : Sant Ram Sharma Vs. State of Rajasthan & Anr.( [1968] (1)SCR 111,1578. 114 & 118); Guman Singh & Ors. Vs. State of Rajasthan & Ors. ([1971] (2) SCC 452); Mir Ghulam Hussan & Ors. Vs.the Union of India & Ors.( AIR 1973 SC 1138.). The Divisional Personnel Officer, Southern Railway, Mysore Vs. S. Raghavendrachar;( [1966] (3) SCR 109) N. P. Mathur &, Ors. Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to clause (3) of Regulation 5. It is submitted by the appellants that, in doing so, it unduly enlarged the claims of seniority and made it a barrier in the path Of Promotion of meritorious individuals in service. Seniority can certainly not be over-looked, as the basis of a claim, in view of Regulation 5, clauses (2) & (3). But, to hold that seniority is practically the, governing or decisive factor in all cases of promotion under these regulations, subject only to the claims of exceptional merit and suitability, would, it was urged on behalf of appellants, minimise the importance of merit. Merit is certainly an elusive factor capable of being judged very differently from different angles, or, by applications of varying tests of it by diferent persons, or, by the same persons, at different times. It was submitted on behalf of the respondents that to make supposed merit the sole test for selection would be to leave the door wide open for nepotism to creep into selections for higher rungs of public service by promotion and that this would undermine the morale of members of the State services and weaken incentives for honest work and achivement of better standards of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, they can be abused with less difficulty. But, the machinery provided for preparation of select lists for promotion to All India Services, so as to ensure impartiality, cannot be assumed to so operate as to produce unjust results. The wider the powers entrusted to an administrative authority, the more should be the consciousness of responsibility on its part for their due discharge fairly and impartially. The presumption is that the authority concerned will discharge its obligations with full realization of its implications and honestly. We have, however, to determine here whether the, Selection Committee and the Union Public Service Commission performed their functions on a correct interpretation of the relevant regulations and not whether they acted honestly about which we entertain no doubt whatsoever. The Division Bench had held "merit and suitability" to be a sort of an admission test for a place on the select list just as the, conditions for eligibility laid down in Regulation 4 operated as test operating at the out-set for inclusion in the list of eligible persons. Furthermore, it held that, even in judging "merit", seniority was the most important con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competitive and comparative applied to all eligible candidates and not minimal like pass marks at an examination. The Selection Committee has an unrestricted choice of the best available talent, from amongst eligible candidates. determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing_ factor. A simple reading of. the Regulation 5 (2) clearly indicates this to be the correct view. The required number has thus to be selected by a comparison of merits of all the eligible candidates of each year. But, in making this selection, seniority must play its due role. Seniority would, however, only be one of the several factors affecting assessment of merit as comparative experience in service, should be. There could be a certain number of in marks allotted, for purposes of facilitating evaluation, to each year of experience, gained in the, service. When the required number for the list is thus chosen, the respective roles of seniority and exceptional merit would be governed by Regulation 5(3). This seems to be the correct interpretation of rules as they stand. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e approval of the Union Public Service Commission, which, according to Regulation 7 (3), makes the list final. Logically, if the view taken by the Division Bench is correct, that the aggrieved officers were, apparently, punished in the sense that they were dealt with in an arbitrary fashion, each should have been atleast supplied with the reasons for the assessment involving his supersession, after the Selection Committee had decided to recommend the supersession, so that he could make written representations to the Union Public Service Commission before the select list was approved. Such a rule of fairness need not make the process of approval unduly cumbersome and dilatory. On the other hand, it could prove helpful. I am doubtful whether such an extension of rules of natural justice to a case of "selection" is warranted by authorities as they stand. A place on the approved select list certainly confers a right to be appointed, according to Rules 8 and 9, to cadre posts. Although, the process of assessment by the Selection Committee, and, thereafter, approval by the Union Public Service Commission does not involve observance of the "audi alteram patrem" rule in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; reason given mechanically for the supersession of each officer does not amount to "reasons for the proposed supersession". The most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. This apology for reasons to be recorded does not go beyond indicating a conclusion in each case that the record of the officer concerned is not such as to justify his appointment "at this stage in preference to those selected". In the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections conferred upon them by Articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining -visible safeguard against possible injustice and arbitrariness in making selections. If that had been done, facts on service records o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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