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TMI Blog2018 (4) TMI 1973X X X X Extracts X X X X X X X X Extracts X X X X ..... appointment with effect from the date of notification, i.e., 5.5.2009, and also by giving appropriate place of seniority to the first Respondent amongst the private Respondents. 2. Brief facts leading to this appeal are: The first Respondent (contesting Respondent) was appointed as Deputy Superintendent of Police in the State of Tamil Nadu; she joined for duties on 26.05.1997; she was promoted as Superintendent of Police on 10.06.2006 and has worked at different places on the said post. In the seniority list of State Police Service (for short 'SPS') Officers, the first Respondent, at the given point of time, stood at serial No. 11. Since the fourth person in the seniority list was over-aged, the first Respondent was effectively considered at serial No. 10 in the seniority list for the purpose of this case. For the year 2008, there were ten vacancies for SPS to the Indian Police Service (for short, 'IPS'), which is an All India Service. The appointment by promotion to the IPS is governed by the IPS (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as the 'Regulations'). The zone of consideration is three times the number of vacancies an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S/IFS. In pursuance of Sub-Rule (1) of Rule 9 of the IPS (Recruitment) Rules, 1954, the IPS (Appointment by Promotion) Regulations, 1955 have been framed. The method of appointment is provided in Regulation 5, which reads thus: 5. PREPARATION OF A LIST OF SUITABLE OFFICERS: 5(1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Police Service as are held by them to be suitable for promotion to the Service. The number of members of the State Police Service to be included in the list shall be determined by the Central Government in consultation with the State government concerned, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held, in the posts available for them under Rule 9 of the Recruitment Rules. The date and venue of the meeting of the Committee to make the selection shall be determined by the Commission; Provided that no meeting of the Committee shall be held, and no list for the year in question shall be prepared when; a. there are no substantive vacancies as on the first day of January of the year in the posts available for the members of the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinuous service, on the 1st day of January of the year for which the Select List is prepared, in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent thereto by the State Government. EXPLANATION: The powers of the State Government under the third proviso to the Sub-Regulation shall be exercised in relation to the members of the State Police Service of constituent State, by the Government of that State. 5(2)(A) Deleted. 5(3) The Committee shall not consider the cases of the members of the State Police Service who have attained the age of 54 years on the first day of January of the year for which the Select List is prepared: Provided that a member of the State Police Service whose name appears in the Select List prepared for the earlier year before the date of the meeting of the Committee and who has not been appointed to the service only because he was included provisionally in that Select List shall be considered for inclusion in the fresh list to be prepared by the Committee, even if he has in the meanwhile, attained the age of fifty four years. Provided further that a member of the State Police Service who has attained the age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on a provisional basis such inclusion shall be in addition to the normal size of the select list determined by the Central Government for such year. EXPLANATION I: The proceedings shall be treated as pending only if a charge-sheet has actually been issued to the officer or filed in a Court as the case may be. EXPLANATION II: The adverse thing which came to the notice of the State Government rendering him unsuitable for appointment to the service shall be treated as having come to the notice of the State only if the details of the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential. 5 (6) Omitted. 5 (7) Deleted. 6. Ms. Binu Tamta, learned Counsel representing the Appellant herein, while taking us to the material on record, submits that the CAT, as well as the High Court, has fallen into error by virtually assessing the performance of the first Respondent as an appellate authority and that too wrongly; they have erred in taking into consideration the Annual Confidential Reports from 1.4.2003 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that it cannot be said now-a-days, if one is aware of the facts and currents of life, that simply because categorization and judgment of the service records of officers are in the hands of senior officers, it is a sufficient safeguard. There has been considerable erosion in the intrinsic sense of fairness and justice in some of the senior officers. From instances of the conduct of many, some of the senior officers and men in high position, it cannot be said that such thinking on the subject of erosion is not wholly unjustified. Selection on merits confers wide discretion on the authority making the selection, and in the absence of reasons there would be no objectivity, and the members of the State Civil Service might receive discriminatory treatment by the Selection Committee. On these, among other things, he prayed for dismissal of the appeal. 8. This Court in the case of R.S. Dass v. Union of India (supra) has observed that in order to Rule out any grievance, actual or fancied, some objective basis for categorisation in the manner indicated should be laid down. If such objective basis is made known, and after categorisation the selection of junior officers in preference to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the grading recorded by the reporting/reviewing/accepting authority but will make its independent assessment of the service records of the eligible officers as per the procedure indicated below. 3.1 The Selection Committee would go through the service records of each of the eligible officers, with special reference to the performance of the officer during the last five years, preceding the year for which the Select List is prepared and after deliberation will record the assessment of the Committee in the Assessment Sheet comprising the Assessment Matrix [Officer x Year-wise assessment] and the column for Overall Assessment of the officers. 3.2 As the crucial date for preparation of the Select List is 1st January of the year of the Select List, the ACRs upto the year ending 31st March (where ACRs are written on a financial year-wise basis) or 31st December (where ACRs are written on calendar year-wise basis) of the year preceding the year of the Select List are to be taken into consideration by the Selection Committee. 4.1 The Selection Committee will go through the records of the eligible officers and make their assessment after deliberating on the quality of the officer as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines would be observed. (i) Whilst the overall grading in the ACRs will have its relevance, however, in order to have a final view, it will be essential to carefully peruse and assess all the individual attributes/columns in the ACRs like, Work Performance, Targets Achieved, Supervision, Managerial capabilities, personality traits etc. before the Committee decides to grade an officer as 'Outstanding'. (ii) Thus, there should be an in-depth analysis of the performance of the officer before he is rated as 'Outstanding'. There should also be consistency in the grading given by different Committees in different years. (iii) Considering the fact that such 'Outstanding' officers are going to supersede other officers, there is a greater need to ensure that such an officer has met the stringent norms of being graded as 'Outstanding'. For such purposes, the ACRs of the concerned officer should elaborate his significant achievements or exceptional nature of work in the areas of law and order, disaster management, implementation of developmental schemes etc. (iv) Postings are not within the competence of an officer for which he ought not to be discrimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant records and make its assessment after deliberating on the quality of the officer as indicated in various columns in the Annual Confidential Reports, and then finally arrive at the conclusion. Para 4.2 specifies that the Selection Committee would not be guided merely by the overall grading in the Annual Confidential Report, but would make its own assessment on the basis of all entries in the Annual Confidential Report, because sometimes the overall grading in an ACR may be inconsistent with the grading under various parameters or attributes. This virtually means that the Selection Committee will not act as a post office but will take a decision on due application of mind. Para 4.4 mentions the overall assessment/categorisation of officers. It states that while finalising the overall assessment of the officers as per para 3.1, an officer shall be graded as "Outstanding", "Very Good", "Good" and "Unfit". The para states in detail as to how such grading should be assigned, and on what basis. 9. The Regulations as well as the Guidelines are to be applied jointly at the time of making the selection list. In our considered opinion, the Regulations and the Guidelines jointly pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the recommendations of the Selection Committee with or without modifications in terms of the provisions of Regulation 7. Appointments to the IPS are made from the select list by the Government of India (Ministry of Home Affairs). From the afore-mentioned, it is clear that complete procedure is prescribed for selection and appointment to the IPS cadre from the SPS. 10. As mentioned supra, it is the contention of the first Respondent that the Selection Committee ought to have graded her as "Outstanding" or at least "Very Good", on an overall relative assessment of her service records, and consequently she would have been selected for the year 2008. It is her further contention that on a comparative assessment of her service records with those of the private Respondents, who were junior to her, she could not have been excluded from the selection list as her service records are better than those of almost all of them. Thus, according to her, the Selection Committee has acted expressly in an arbitrary manner in the said process of selection by superseding the first Respondent. 11. The CAT and the High Court have virtually assessed the performance of the first Respondent afresh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CAT, as well as the High Court, has misdirected in coming to the wrong conclusion that Annual Confidential Reports from 1.4.2003 to 31.03.2008 ought to have been taken into consideration inasmuch as such conclusion is against the Regulations & the Guidelines. 13. The CAT and the High Court have mainly relied on the grading given in the Annual Confidential Reports of the officers at the State level while coming to their conclusion. But, in terms of the Regulations and the Guidelines framed therein, for categorising the officers, the Selection Committee was required to consider the overall relative assessment of the service records of each of the eligible officers. The Selection Committee is not guided merely by the grading recorded in the Annual Confidential Reports but makes its own assessment on the basis of the quality of the officer as indicated in various columns recorded by the Reporting/Reviewing/Accepting Authority thereunder. In other words, the Selection Committee is not required to compulsorily accept the gradings given in the Annual Confidential Reports as it would amount to merely acting as a post office and the whole process would be nothing but a farce. The gradi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmittee and to scrutinise the relative merit of the candidates. The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body, i.e., the Selection Committee. The Courts have very limited scope of judicial review in such matters. We are conscious of the fact that the expert body's opinion may not deserve acceptance in all circumstances and hence it may not be proper to say that the expert body's opinion is not subject to judicial review in all circumstances. In our constitutional scheme, the decision of the Selection Committee/Board of Appointment cannot be said to be final and absolute. Any other view will have a very dangerous consequence and one must remind oneself of the famous words of Lord Acton "Power tends to corrupt, and absolute power corrupts absolutely". The aforementioned principle has to be kept in mind while deciding such cases. However, in the matter on hand, it is abundantly clear from the affidavit filed by the UPSC that the Selection Committee which is nothing but an expert body had carefully examined and scrutinised the experience, Annual Confidential Reports and other relevant factors wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory rules. The courts cannot sit as an appellate authority or an umpire to examine the recommendations of the Selection Committee like a Court of Appeal. This discretion has been given to the Selection Committee only, and the courts rarely sits as a Court of Appeal to examine the selection of a candidate; nor is it the business of the Court to examine each candidate and record its opinion. Since the Selection Committee constituted by the UPSC is manned by experts in the field, we have to trust their assessment unless it is actuated with malice or bristles with mala fides or arbitrariness. 17. In the case of Union of India v. A.K. Narula reported in (2007) 11 SCC 10, this Court in similar circumstances observed thus: 15. The guidelines give a certain amount of play in the joints to DPC by providing that it need not be guided by the overall grading recorded in CRs, but may make its own assessment on the basis of the entries in CRs. DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, mala fides or ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be clearly understood, as has been clearly held by this Court in a number of decisions....... 19. In the matter on hand, we find that neither the decision nor the decision making process was actuated with malice, and no grave mistake was committed by the Selection Committee leading to arbitrariness. We find that it is not a case of pick and choose, but the selection has been made rationally. The applicant-Respondent No. 1 was duly considered by the Selection Committee. However, on an overall assessment of her service records, her name was not included in the select list due to the statutory limit of its size and as officers with higher grading were available for inclusion in the select list as per the provisions of Regulation 5(5) of the Regulations. 20. So far as the case of Respondent No. 6 - Srimati V. Jayashree is concerned, initially some disciplinary proceedings were pending against her. Though the disciplinary proceedings were pending, the name of Srimati V. Jayashree, Respondent No. 6 herein, on an overall relative assessment of her service records, was provisionally included in the select list, subject to clearance in the disciplinary proceedings. Since the State Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of Srimati V. Jayashree, Respondent No. 6 herein, was provisionally included in the select list and was made unconditional in the select list after her exoneration in the disciplinary proceedings, she was appointed in the 2008 batch. 22. Having regard to the entire material on record, we do not find any ground to agree with the reasons assigned by the CAT and the High Court while coming to their conclusion. The High Court has strangely made out a fresh additional point in favour of the first Respondent by observing that, on perusal of the records maintained by the Selection Committee, the High Court was not able to find the grading of the officers recorded by the State Government. In other words, the High Court was of the view that since the records submitted before the Selection Committee did not include the grading of the officers recorded by the State Government, the Selection Committee did not have an opportunity to take into account the grading recorded by the State Government while coming to its conclusion. We do not agree with the said observations. The CAT while deciding the matter has taken into account all the records including the grading of the State Government, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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