R.S DASS ETC. ETC. versus UNION OF INDIA & ORS.

:>··

R.S DASS ETC. ETC. v. UNION OF INDIA & ORS.,

DECEMBER 11, 1986

A

[SABYASACHI MUKHARJI AND K.N. SINGH, JL]

B

to

(Executive)-Promotion

Constitution of India, 1950-Arts. 14 and 16-Members of State Indian Admfnistrative Civil Service Service-Selection-Merit sole ,basis-Seniority-Whether confers any legal right on a Government servant for promotion-Whether such right protected by Arts. 14 and 16-Eligible officers considered on merit in C an .objective manner-Non-selection of senior&--Whether amounts to supersession-Whether Selection CommJltee required to record reasons fo; non-selection of seniors-Whether non_recording of reasons under amended Regulation 5(4) and (5) of /AS (Appointment by Promotion) Regulations 1955 violative of Arts. 14 and_l6.

D

Natural Justice-Civil Service-Promotion-Selection on Merit a/one-Eligible officers considered on merit in an objective manner Seniors not selected-Seniority-Whether confers any legal right on a Government Servant-Whether ·opportunity required to be given to the superseded officer for making representation-Rules of natural justice- Application of-Depends upon· the setting and the background of statu- E tory provisions, nature of the right affected and the consequences which may entail.

Civil Service-Indian Administrative Service (Appointment by Promotion) Regulation, 1955 Regulations 3, 5(4), (5) .& (7), 6 and 8. and Indian Administrative Service (Recruitment) Rules, 1954---Rules 4 F and 8(i}-Members of Punjab State Civil Service (Executive) Promotion to Indian Administrative Service-Selection-Merit alone to be considered-Seniority-Whether confers any legal right on a Government Servant for Promotion-Whether such right protected by Arts. 14 and 16-Eligible officers to be considered in an .objective manner-Non-selection of seniors-Whether amounts to superses- G sion-Whether Selection Committee/State Government required to give reasons for non-selectjon of seniors~ Non-recording of reasons for supersession-Select List-Validity of-Whether Promotion Regula tions 3, 5 and 7 ultra vir.es Recruitment Rule 8(1).

Services-Categorisation of eligible officers as

'Outstanding'; H

527

528

SUPREME COURT REPORTS

(1987] 1 S.C.R.

A

'Very Good', 'Good' and 'Unfit' for pwposes of Promotion-Basis of categorisation should be objective and not merely subjective evalua tion-Service record-Character roll entries-Importance of.

AdminiStrative action-Power-Vested in a high authority

Whether sufficient safeguard against arbitrariness and misuse of

B power-Presumption-Whether power would be exercised reasona bly-Judicial.review-Scope- of Delay in forwarding comments to Public Service Commission by State Government-Whether constitutes malafides.

The Central Government under s. 3 of the All India Services Act, C 1951 framed Indian Administrative Serl'ice (Recruitment) Rules, 1954. According to Rule 4 recruitment to the Indian Admioistrative Service is made by: (i) direct recruitment throug!ll competitive examination; (ii) promotion ofsubstantive members of the State Civil Service (Executive) and (iii) selection from amongst persons holding posts in substantive capacity in connection with the affairs of the State, who may not be D members of the. State Civil Service. Under Rule 8(1) the Central Governmen_t framed the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 laying down procedure for selection for appointment to the service by promotion. Regulation 3 provides for the Constitution of' a Selection Committiee. Regulation 5 provides that the Committee shall prepare the list of imch members of the State Civil E Service found suitable for promotion to the service on an over all rela tive assessments of the service. The State Government shall forward this list to the Union Public Service Commission along with the records of the selected members as well as of tl1ose proposed to be superseded together with the Observations Of the S·tate Government. OD tJlle recom mendation of the Committee· for com;ideration !Jf the Union Public F Service Commission and the list so approved shall form the Select List of the members of State Civil Service and shall be io force until a fresh list is prepared and approved for the sul>Sequent year. Regulation 8 lays down that the appointment shall be made by the Central Government on the recommendations of the State Government in the order in which the names of members of the State Ci vii Service appear in the Select G List. In the process of preparing the Select List if the seniors are not found suitable for promotion and their names in the Select List are not included and, if junior officers are found suitable for the inclusion of the names in the Select List, the seniors stand superseded, as the selec tion is made on merit and not on the ba' is of seniority.

·H

Three members of the Punjab Sll1<te Civil Service (Executive) filed

x

R.S. DASS ETC. ETC. v. UNION OF INDIA

529

-separate petitions under Art. 226 challenging the validity of the Select A List of 1978 for promotion to the I.A.S. alleging: (i) that they were eligible for promotion to the Indian Administrative Service, but their names were not included in the Select List while names of officers Junior to them were included, thereby superseding them in an arbi trary manner without recording any reasons; (ii) that the mandatory provisions of Regulation 6 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 were violated as the service records of eligible State Officers including the petitioners bad not been forwarded to the Union Publi_c Service Commission; (iii) that amendment made in Regulation 5 deleting the provision which re quired reasons to be recorded for the supersession of a State Officer, · was arbitrary and violative of Article 14; (iv) that the RegulatiO!lS were C ultra vires being inconsistent with the Indian Administrative Service (Recruitment) Rules, 1954; (v) that .one officer bad earned adverse remarks and yet be was selected; (vi) that important material relating to the petitioners' service including certificate and letters of recommenda tions were not considered by the Selection Committee.

8

D

A Division Bench of the High Court by a Common Judgement in Baldev Kapoor's caSe [(1980) 2 SLR 309] dismissed all the petitions hold ing that the Select List prepared for the year 1978 did not suffer from any legal infirmity. During the pendency of these. petitions Select List for the year 1979 was also prepared and the name ofone oftbe petition ers was not included in that list also. Another writ petition challenging that Select List was also filed on the same grounds and dismissed.

In similar Writ Petitions, the Full Bench of the High Court to whom the matter was referred for . consideration on the question as to whether the Select List of 1978 was vitiated for non-compliance of Regu lation 6(iii) inasmuch as reasons for supei:session al senior officers were not forwarded to the Commission, held that the decmon of the Supreme Court in Chothia's case [1978) 3 SCR 652] did not affect the position and the Division Bench's decision in Baldev Kapoor's case (supra) correctly laid down the law.

Appeals were filed in this Court and during their pendency 15 other officers filed petitions-under Art. 32 challenging the validitY of Select Lists for the years 1979 and 1980. Some other officers filed simi lar petitions challenging the validity of Select Lists prepared for the year 1983. Select Lists for the years 1978, 1979, 1980 and 1983 were challenged almost on similar grounds.

E

F

G

H

(

530

SUPREME COURT REPORTS

[1987] 1 S.C.R.

A

In the present appeals and petitio11s, on behalf of the appellants and petitioners it was contended: (1) thai: the Select Lists of 1978, 1979, 1980 and 1983 were vitiated as tbe Selection Committee did not record any reasons in superseding the appellants/petitioners while excluding their names and including the names of junior officers in the Select Lists; (2) that the amendment of the Regulation 5(7) was violative of B Articles 14 and l 6 as it conferred ungoided power on the Selection Committee to supersede senior officers; (.I) that the Select Ust prepared for the year 1978 was vitiated for non-compliance of Regulation 6(iii) as reasons recorded by the Selection Comm:itee were not forwarded by the State Government to the Commission along with record of officers pro posed to be superseded; (4) that even if under the Regulations no reasons wer.e necessary to be recorded, principles of Natural Justice and fair play required that reasons should have been recorded; (5) that the Select Lists prepared for the years l •ns and 1979 were vitiated on account of unauthorised participation of ,Sbri I.C. Puri as a Member of the Selection Committee; (6) that the Re~:ulation 3 and 5 of the Promo tion Regulations were violative of Rule !I( I) of the Recruitment Rules inasmuch as the Promotion Regulations impinge upon the State Government's power to make recommendations for appointment to the service; (7) that the State Government deliberately delayed its com ments on the Select List prepared for 19110 to the Public Service Com mission with a view to give undue advantage to the officers included in the 1979 list for promotion to the Indian Administrative Service.

D

C

E

F

G

H

Dismissing the Appeals and Writ Pel itions,

HELD: By the Court

(Mukharji & K.N. Singh, JJ.)

Having regard to the legislative history and the purpose and the object which was sought to be achieved by the amendments there could be no mandatory legal obligation on the Committee to record reasons. Regulation 6(iii) merely required the State Govt. to forward reasons if recorded for supersession of the officers lo the Commission, b.;t if no reasons were recorded the State Government was under no legal obllp tion to forward the same to the Commission and its non-compliance did not vitiate the Select List. The entire s•rstem of selection has been changed on account of amendment In the feliutations. [552F-G; D-E]

Gurdayal Singh Fiji v. State of Punjab & Ors., [1981] l SCR 904,

followed.

R.S. DASS ETC. ETC. v, UNION OF INDIA

531

~x

Union of India v. Chothia (H.P.) & Ors. etc. etc.,[1978] 3 SCR A

652 and Union of India v. Mohan Lal Capoor & Ors., [1974] l SCR 797, distinguished •

•

P. C. Pradhan v. Union of India & Ors., [1981] ! SLR and J.S.

Chopra's case [1980] 2 ILR Punj. 477, approved. Per K.N. Singh, J.

I. I Regulation 5(5) of the Indian Administ~ative Service (Appointment by Promotio11) Regulations, 1955 provided that if in the process of selection, review or revision it is proposed to supersede any member of the State Civil/Police Service the Selection committee shall record its reasons for the proposed supersession. Regulation 5 was, however, amended by Notification dated 3.1.1977. [S45G]

B

C

1.2 The amended provisions of Regulation 5 have curtailed and restricted the role of seniority in the process of selection as it bas given primacy to merit. Now. the Committee is required to categorise the eligible officers in four different categories, namely' "Outstanding" "Very good", "Good" and "Unfit" on overall relative assessment of D their service records. After categorisation is made the Committee has to arrange the names of off"wers in the'Select List in acC'ordance with the procedure laid down in Regulation 5(5). In arranging the names in the Select List the Committee has to follow> the inter·se seniority of officers within each category. In this . process a junior officer if categorised "Outstanding" or "Very good" would supersede his seniors. [547A·El

E

I.3 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 Fight to promotion and if juniors to him are selected for promotion on merit the senior officer is not legally superseded. [547E-F]

F

2.1 Article 16 ensures equality in matters relating to appointment and promotion to an office or post under the State. It enjoins State mil to practise discrimination in matters relating to appointment and pro motion. A member of the State Civil Servite eligible for selection for promotion to the I.A,.S. has right to be considered alongwith others for G selection for promotion. If eligible officers are considered on merit in an objective manner, no Government servant has any legal right to insist for promotion nor any such right is protected by Article 14 or 16 of the Constitution. Article 16 does not insist that reasons should be recorded for the non-selection of-a member of a State Servic~. [548A-CJ ·

H

532

SUPREME COURT REPORTS

[1987) .l S.C.R.

A

2.2 In the absence of a statutory provision an Administrative Authority is under no legal obligation to rncord reasons in support of its decision. There is no scope for applying ;~rinciples of natural justice in matters relating to selection of suitable members of State Service for promotion to a higher service. [548D·El

-..,.. .

B

C

2.3 Rules of natural justice are 0011 rigid rules. They are flexible and their application depends upon the setting and the back-ground of statutory provisions, nature of the right which may be affected and the consequences which niay entail, in the f•icls and circumstances of each case. These principles do not apply to all cases and situations. Applica· lion of these uncodified rules is exclude«il in the interest of administra- tive efficiency and expedition. Sometimes legislation itself excludes the application of the rules by express provisfon or by implication. [550B·D I

0

E

F

G

2.4 In the instant case, statutory Regulations do not expressly or by implication apply the rule of audi alteram partem ip making the selection. On the other hand the scheme contained . under the Regula- lions exclude the applicability of the aforesaid rule by implication. Select List is prepared each year which ordinarily continues to be effec tive for a year or till the fresh Select List ,j.o;. prepared. If during the process of selection a senior officer is proposed to be superseded by virtue of not being included in the Select List, and if opportunity is afforded to him to make representation and only thereafter the List is finalised, the process would be cumbersome and time consuming. In this process it will be difficult for the Committee to prepare and finalise the Select List within a reasonable period of time and the very purpose of preparing the Select List would be ddeated. Scheme of the Regula tions, therefore, clearly warrants exclusion of principles of audi alter am pariem. No vested legal right of a memh<>r 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 Government. Therefore, no opportunity is •ecessary to be afforded to him for making representation agaimt the~ supersession. [550G-H; 551A-C)

A.K. Kraipak & Ors., etc. etc., v. Union of_India & Ors., [1970) I SCR 457, Union of India v. Col. J.N. Sinha & Anr., [1971) I SCR 791, Chairman Board of Mining Examination & Anr., v. Ramjee, [1977) 2 SCR 904 and Union of India & Anr., v. Tulsiram Patel etc., [1985) 3 sec 398, relied npon.

H

3.1 The scheme contained in promotion Regulations and the

R.S. DASS ETC. ETC. v. UNION OF INDIA

533

criteria prescribed therein for preparing the Select List do not justify the apprehension that in the absence of reas0ns there would ·be no objectivity and the selection would be made in an arbitrary manner over-looking the claim on a senior officer eligible for promotion to the Indian Administrative Service. 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 odministralion 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 promo tion exists for all qualified members of the State Civil Service and only those who are found efficient and suitable in all respect are promoted. This object is sought.to be achieved by the Regulations in prescribing merit as the sole test for promotion. [553B-D]

A

B

c

D

3.2 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 consist- ing of high ranking officers of the St_ate Government and the Central Government. 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 Government and the Union Public Service Commission and only thereafter final shape is given to the Select List. There are, therefore, adequate checks and safeguards at different stages by different authorities. The machinery designed for preparation of Select List under the Regulations for promo tion to All India Service, ensures objective and impartial selection. Where power is vested in high authority, there is a presumption that the s.une would be exercised reasonably. However, if the selection is made F on extraneous considerations, in arbitrary manner, the Courts have ample power to strike oown the same and that is an adequate safeguard .against the arbitrary exercise of power. Therefore, it cannot he held that in the absence of reasons the selection would be made arbitrariiy. [S53D-H; 554A-C]

E

4. There are various methods of selection viz. by competitive examination, written test-cU01-viva-voce, or by assessment of servke records. For the purpose of recruitment to the Indian Administrative Service from amongst the officers of the State Civil Service, latter method, namely, selection on the basis of scrutiny of service records has been accepted. [554E-F]

·

G

H

A

B

c

D

534

SUPREME COURT REPORTS

[1987] l S.C.R.

Parvez Qadirv. Union of India & Ors., [1975] 2 SCR 432, relied

upon.

5.1 There is hardly any scope for a1>plying different standards or criteria at different times as the service r<ocords, namely, the character roll entries would indicate the category of the officers as adjudged by the authority recording annual confidential remarks. In Punjab jhe authority competent to record annual remarks in the character rolls of members of the State Civil Service, has been directed to indicate the category or the officer' e.g. whether t'ile officer is "Outstanding"' "Very Good" or "Good". Under inst:ructions issued by the Union Government all the State Governments are following similar pattern in categorising members of the State Civil :Service in the annual remarks made in their confidential records. This has brought uniformity in the character role entries. [SSSG·H; 556A-C]

5.2 Since category of members of State Civil Service is available in their service records, the Committee has no discretion to disregard the same. Therefore, there is no merit in the submission that Regula tions 3 and S are discriminatory and th"y violate Articles 14 and 16 of the Constitution. [SS6C-D]

,

6.1 The material placed on record leaves no doubt that Shri J.C. Puri designated as Financial Commissioner (Development) was also dis- E charging the duties and functions of the Development Commissioner. He was, therefore, holding the dual d1arge as no separate post of Development Commissioner had been sanctioned by the Government. These facts clearly show that for all purposes Shri Puri was working as Development Commissioner. As Fina:ocial Commissioner (Develop ment) he was exercising same powers •md discharging same functions

411

F which could be performed by a Develo11ment Commissioner, therefore ~

he was competent lo participate in th" deliberations of the Selection Committee. Moreover, at no stage any objection was raised against functioning' of Shri Puri as a member of the Selection Committee or his participation in the deliberations. Th1>re is further no allegations or mala fide or bias against Shri Puri. There is evidence on ...,.;ord to show that recommendations of the Selection Committee coiistituted under Regulation 3 were unanimous, which were scrutinised by the State Government and the Union Public Service Commission before the same were approved. [SS7H; 55&\-C]

.

G

6.2 In the instant case, the validi1ty or the recommendations made for the preparation of Select List of 1''79 are not vitiated as Shri J.C.

H

R.S. DASS ETC. ETC. v. UNION OF INDIA

535

Puri was neither biased against any of the appellants/petitioners, nor A there was any conflict between his personal interest and duty. Sbri Puri had no interest in the inclusion or exclusion of any member of the State Civil Service nor he bad any personal interest in preparing the· List. There is no 8'1egation of bias or malice against Sbri Puri. His participa tion in the meeting of the Selection Committee did not '"fnder the Select List of 1979 illegal. (5588; 559A]

B

·

')r·

7. The Central Government has framed promotio!I Regulations which provide method and manner of Selection. Regulation 3 provides for constitution of Selection Committee to prepare List of suitable offi cers in accordance with Regulation 5. The list so prepared is forwarded > by the State Government to the Union Public Service Commission along C with the records and the observations of the State Government in -... accordance with Regulation 6. Thereafter, the Commission considers the List under Regulation 7. The Commission shall finally approve the List received from the State Government with such modification as in its opinion it may he just and proper and this List forms the Select List of members of State Civil Service which ordinarily remains in force D until its review and revision. Regulation 9 lays down that the appoiet ment of members of State Civil Service shall be made by the .Central Government on the recommendations of the State Government in the order in which their names appear in the Select List. These Regulations do not in any manner impinge upon the powe"I' of the State Government to make recommendations to the Central Government as c~ntemplateil E by Rule 8 of the IAS (Recruitment) Rules, 1954. Therefore, Regulations 3,. 5 and 7 of the IAS (Appointment by Promotion) Regulations, 1955 are not ultra vires. [559F-H; B]

.8. In the instant case, the Select List of 1979 continued to be effective till Select List for the year 1980 was finally approved. The F officers included in the Select List of 1979 were promoted and appointed to IAS before the final approval of the Select List for the year 1980. Therefore, no exception can be taken to the validity of their appointment. The delay made by the State'Government in forwarding its comments to the Union Public Service Commission with regard to the 11)80 Li~t did not cause any prejudice to the petitioners as none of G them was selected for inclusion in 1980 List. Merely because the State Government forwarded its recommendations with delay is not sufficient to justify inference that the delay was purposive with a view to grant undue favour to some of the officers. Since the process of selection, preparation of Select List and its final approval is time consuming, sometimes delay may be inevitable. State Government should take H

536

SUPREME COURT REPORTS

[1987] l S.C.R.

A action· well in advance to avoid any delay. If undue delay is caused in preparation of Select List, it provides occasions for suspicion against the authorities and it is likely to generate frustration and heart burning among the members of the State Civil s,ervice which would obviously be detrimental to public administration. [SliOF; 561A-B]

B

Per Mukharji, J.

I. It cannot be said now-a-days if one is aware of the facts and currents of Hie that simply because categorisation and judgment of the service records of officers are in the hands of senior officers is a suffi cient safegnanl. There has been considerable erosioo in the intrinsic C sense of fairness and justice in the "''nior officers by all concerned. From the instances of cooduct of many., some of senior officers and men in high position, it cannot be said that such erosion is not only unjustified. [53'.IA-B]

2. In order to rule out any grievance actual or fancied, some objective basis for the categorisation should be laid down. If such objec tive basis are made known, the fact that after <:alegorisation, the selec tioo of junior officers in preference to senior officers need not state reasoos and woold not be violative of tt1e canoos of justice but otherwise there will be room for suspicion anfil that too would not be wholly unjustified. [S39C]

3. It is suggested to the Government and the authorities con cerned that there should be some bads for the cate:iorisation of the officers and such basis should be objfrlive and not merely subjective evaluation and furthermore such ba••s •hoold be formulated in the form of guidelines. [539D I

0

E

F

4. Objectivity in subjective eval 113tion of the worth of the diffe rent officers would go a long way to generate a feeling that justice has been done and unless members of th<: administration feel that justice has been done to them, the administration cannot become an effective ·weapon for social change ushering soci:ol justice. [539D-E]

G

CIVIL APPELLATE JURISDICTIIN: Civil Appeal No:-4370 of

1983 etc.

From the Judgment and Order dated 26. 1 I. 1979 of the Pun jab

H and Haryana High Court in Civil Writ No. 3821of1979.

R.S. DASS ETC. ETC. v. UNION OF INDIA [MUKHARJI, J.I __,

537

R.K. Garg, R.S. Dass-in-person, B.S. Khoji, Arun Madar A

& T .S. Arora for the Appellant's/Petitioners.

G.A. Shah, V.C. Mahajan, Anil Dev Singh, L.K. Gupta, C.V. Subba Rao, R .. S. Sodhi, G.D. (}upta, A.C. Sharma-in-person, Arvind Minneha, Inderjit Malhotra, M.S. Dhillon for the Respondents.

B

The Judgment of the Court was delivered. by

SABY ASACHI MUKHARJI, J. I· have had the advantage of reading the judgment in draft to be delivered by my learned brother K.N. Singh, J. I agree with him that the appeals and the writ petitions herein should be dismissed without any order as to costs. I also res- pectfully agree with him on the conclusions he· has reached on the different contentions urged before us in these cases. It is not necessary to refer to the facts and the issues which have been exhaustively discus- sep by my learned brother. There is, however, one aspect of the matter on which I have certain reservations and I would like to express my views on this aspect so that the Government and the authorities con- D cemed may try to evolve a little more objective basis on that aspect.

C

E

As mentioned, the validity of the Select Lists of 1978, 1979, 1980 and 1983 for promotion to the Indian Administrative Service was impugned in these matters on the ground that the Committee had not retarded any reasons for superseding the appellants and/or petition- ers. The question of recording of reasons had been· discussed in the decision of this Court where Select List was quashed on the ground that the Committee had failed to record reasons in superseding senior officers. In view of Regulation.5(1) to 5(5) as prevailing at the relevant time which came up for interpretation in Union of India v. Mohan Lal Capoor & Others, (1974] 1 SCR 797, this Court quashed the Select List on the ground that the Committee had failed to record reasons in superseding senior officers. It was held that it was incumbent on the Selection Committee to have stated reasons in view of the said Regula- tion in a manner which would disclose as to how the record of superseded officers was judi;,ed in relation to -the record of those offi- cers who were preferred for selection. This Court reiterated in the G context of the said Regulation that there was a mandatory obligation to record reasons in superseding senior officers, and therefore ·in. the absence of such reasons the Select List had been vitiated.

F

Regulation 5 was, however, as noted by my learned brother, amended by Notification dated 3rd January, 1977 and after the amend- H

538

SUPREME COUltT REPORTS

,'

[ 1987] l-S.C.R.

A

B

c

ment, Regulation 5(4) and 5(5) wai; altered. It was provided that the Selection Committee should classify eligible officers as 'Outstanding", "Very Good", "Good" or 'Unfit" as the case might be on overall relative assessment of their service record. The Committee was re quired to categorise officers in four categories on the basis of an over all relative assessment of service record of the officers. After categori sation the Committee was required to place the names of those officers first on the list who might be categorised as "Outstanding" and there after those officers as mentioned aforesajd. Under the amended Regu lation if a senior officer is supersed~ed, the amended Regulation 5(5) does not require the Committee to record reasons for such superses siori. The new amended Regulation emphasise_d that the merit and suitability was the governing consideration and seniority played only a subsidiary role. It was only when merits were roughly equal, seniority was the relevant determining factor. Regulation 5(5) as it stood prior to Capoor's case laid emphasis on the role of seniority. This has been done away with.

( ·-j..'

.... ' .

D

E

It is stated on behalf of the respondents that it was felt difficult to record reasons in the prescribed manner as laid down by this Court in the said decision and the question was considered by a Conference of Chief Secretaries in May, 1976 and was further considered. The Committee recommended that the "ystem of categorisation of officers for promotion to the higher post »hould be followed in case of All India Service also and thereafter the categorisation as noted above was introduced in consultation with the State Governments. Indeed the amended provision Regulation 5 minimised the role of seniority in the process of seiection and importance and primacy was given to merit. This indeed is a laudable object and helps in having the best for the country. It is also true that if selection is made on merit alone for F promotion to higher service, selecti,Jn of such an officer though junior in service in preference to his . senior does not really amount to supersession. If promotion is made on merit alone, the senior officer per se has no legal right to promotion and if promotion is made on merit,. it cannot be said that a senior officer has been superseded. It has been emphasised that the cat(:gorisation is done on the service record. This has also been emphasifed that such categorisation is done on the service record including confidential character rolls as main tained by senior officers holding high positions. It is, therefore, according to my learned brother, sufficient safeguard against arbitrary categorisation and misuse of power. I have my reservations on this aspect though I accede the position that in the absence of any other H practicable solution, this is perhaps a sufficient safeguard and perhaps

G

-

R.S.' DASS ETC. ETC. v. UNION OF INDIA [SINGH, J.J

539

a practical way of facing a rather delicate task. 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 con siderable erosion in the intrinsic sense of fairness and.justicthn 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 not only unjustified.

In order to rule out any grievance ~qtua[ or fancied, some objec tive basis for the categorisation in the n\anner indicated should be laid down. If .such objective basis are made known, the fact that after categorisation, the selection of junior officers in preference to senior officers need not state reasons and would not be ·violative of the canons of justice but otherwise there will be room for suspicion and that. too would not be wholly unjustified.

I would therefore like to suggest to the Government and the authorities concerned that there should be some basis for the categori sation of the officers and such basis should be objective and not merely subjective evaluation and furthermore such basis should be formulated in the form of guidelines. Objectivity in subjecti".e evaluation of the worth of the different officers would go a long way to generate a feeling that justice has been done and unless members of the administration ·feel that justice has been done to them, the administration cannot become an effective weapon for social change ushering social justice . . ,

A

B

c

D

E

I, however, hasten to add that in these cases I agree with my learned brother that justice has been done in accordance with the rules to the officers concerned and therefore concur with him in the order as proposed.

F

SINGH, J: These three Civil Appeals are directed against the judgment of Division Bench of Punjab & Haryana High Court dismis sing the writ petitions filed by R.S. Das, Mrs. K. Goyal challenging the validity of the Select List prepared for the year 1978, 1979 for promo tion of members of Punjab State Civil Service (Executive) to the G Indian Administrative Service. During the pendency <if these appeals 17 writ petitions were filed before this Court under Article 32 of the Constitution by Pritam Singh, Ajit Singh Nagpal and other members of the Punjab' State Civil Service (Executive) challenging the validity of Select List prepared for the year 1979, 1980 and 1983, As all the cases rest upon similar facts and involve common questions of law, H

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. ..,._, '

540

SUPREME CO\JllT REPORTS

[1987] l S.C.R.

A

these were heard together and we consider it necessary .to dispose them of by common judgment.

R.S. Das, Mrs. K. G_oyal and Baldev Kapoor members of the Punjab State Civil Service (Executhe) had completed more than eight years of service and they were eli~:ible for promotion to the Indian B Administrative Service but their names were not included in the Select List for the year 1978, while the names of officers junior to them were included in the Select List. R.S. Das, Mrs. K. Goyal and Baldev Kapoor filed three separate petitiof!f• before Punjab and Haryana High Court under Article 226 of the Constitution challenging the validity of Select List of 1978. Their grievance was that though they were senior, C having good service record yet they were superseded by officers junior to them in an arbitrary manner without recording any reasons for the same. A Division Bench of the High Court dismissed all the three petitions by a common order dated November 20, 1979 rendered in Baldev Kapoor's [ 1980] 2 SLR 309 ease holding that the Select List prepared for the year 1978 did not suffer from any legal infirmity. D During the pendency of the aforesaid petitions, another Select List was prepared for the year 1979 and in that List also the name of R.S. Oas was not included. He filed another writ petition challenging the validity of that Select List also almost on the same grounds, that writ petition was also dismissed by the Division Bench on November 26, 1979. R.S. Das and Mrs. K. Goyal have preferred appeal before this E Court by special le.ave. During the pendency of these Appels Pritam Singh and 15 other officers of the State Civil Service challenged the validity of Select List prepared for the year 1979 and 1980 before this Court by means of petition~ under Article 32 of the Constitution. Ajit Singh Nagpal and other officers filed a similar petitions challenging the validity of Select List prepa~ed for the year 1983. The challenge to the F validity of the Select List for the Y''ar 1978, 1979, 1980 and 1983 are

almost on similar grounds.

G

Before the High Court S/Shri R.S. Das, Baldev Kapoor and Smt. K. Goel challenged the validity of the Select List of 1978 on the ground that mandatory provisions of Regulation 6 of the Indian Administra- tive Service (Appointment by Promotion) Regulations, 1955 (herein after referred to as the Regulations> were violated in making the selec tion as the service records of eligibk"state officers including that of the petitioners .had not been forwarded to the Union Public Service Commission and its approval was given without considering the recom mendations made by the Selection Committee. Amendment made in H Regulation 5 deleting the provisions which required reasons to be

R.S. DASS ETC. ETC. v. UNION OF INDIA [SINGH, J .]

54 !

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recorded for the supersession of a state officer, was arbitrary and A violative of Article 14 of the Constitution. The petitioners further challenged the vires of the Regulations on the ground of their being inconsistent with the Indian Administrative Service (Recruitment) Rules 1954 (hereinafter referred to as the Rules) and inclusion of name of K.S. Raju was assailed on the ground that he had earned adverse remarks and yet he was selected. The petitioners further raised grievance that important material relating to the petitioners' service including certificate and fetters of recommendations as contained in their service records were not considered by the selection commit- tee. The High Court by a well considered judgment rendered in Beldev Singh's case (supra) dismissed all the three writ petitions on the findings that the select list prepared for the year 1978 was in accord ance with the regulations and it did not suffer from any legal infirmity. It appears that validity of the Select List of 1978 was challenged by J..S. Chopra and other officers of the state civil service before the High Court under Article 226 of. the Constitution on the same ground which had already been rejected by the Division Bench in Baldev Kapoor's case (supra). However having regard to the decision of this Court in Union of India v. Chothia (H.P) & Ors., etc. etc., [1978) 3 SCR 6S2. Division Bench referred the matter for consideration to a larger bench on the question as to whether the Select List was vitiated for the · non-compliance of Regulation 6(iii) inasmuch as 'reasons for the supersession of senior officers were not forwarded to the Commission. The Full Bench of the High Court held that the decision of this Court in Chothia's case did not affect the positiori and the Division Bench decision in Baldev Singh's case correctly laid down the law.

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In the present appeals and petitions learned counsel for the ap pellants and the petitioners as well as Shri R.S. Dass, appellant who appeared in person argued the case and have made the following submissions:

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(1) The select list of 1978-79, 1980 and 1983 are vitiated on the ground that select committee did not record any reasons in superseding the appellants/petitioners in exclu- G ding their names and including the names of junior officers in the·select list.·

(2) Amendment of the Regulation 5(7) is violative of Arti cles 14 and 16 as it confers unguided power on the Selection Committee to supersede senior officers.

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SUPREME COURT REPORTS

[1987] 1 S.C.R.

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(3) The select list prepared for the year 1978 was vitiated for the non-compliance of Regulation 6(iii) as no reasons were forwarded by the State Committee to the Commission along with record of offkers proposed to be superseded.

(4) Even if under the Regulations no reasons were neces sary to be recorded, principles of Natural Justice and fair play required that reaso:J should have been recorded.

(5) The select list prepared for the year 1978, 1979 was vitiated on account of the unauthorised participation of Shri J.C. Puri as a memher of the Selection Committee.

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( 6) Regulations 3 and i of the Promotion Regulation are violative of rule 8( I) of the recruitment rules inasmuch as the Promotion Regulations the State Government's power to make recommendations for appointment to the service.

imping" upon

(7) The State Government deliberately delayed its com ments on the select [i,.t prepared for 1980 to the Public Service Commission wi1h a view to give undue advantage to the officers included in the 1979 list for promotion to the Indian Administrative ~:.ervice.

Before we consider the submissions made on behalf of the appel lants/petitioners we think it necess.ary to refer to therelevant statutory provisions regulating promotion of members of the State Civil Service to the Indian Administrative Service. The Central Government in exercise of its powers under section 3 of the All India Services Act, F 1951 framed Indian Administrative Service (Recruitment) Rules, 1954 (hereinafter referred to as the Rut,,.). Rule 4 provides for recruitment to the service, according to this rule recruitment to the Indian Administrative Service is made by: (i) direct recruitment through com petitive examination; (ii) promotion of substantive members of the G State Civil Service (Executive) and (iii) Selection from amongst persons holding posts in substantial capacity in connection with the affairs of the State, who may not be members of the State Civil Service. Rule 6 provides that no appointment shall be made to the Indian Administrative Service (hereinafter referred to as the Service) except in accordance with the recruitment by one ·of the methods specified in rule 4. Rule 7 provides for direct recruitment through competitive examination. Rule f.(1) confers power on the Central

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R.S. DASS ETC. ETC. v. UNION OF INDIA [SINGH, J.l

543

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Government to appoint members of the State Civil Service by promo- A tion to the Service on the recommendation of the State Government and in consultation with the Union Public Service Commission in accordance with Regulations ·which may be framed by the Central Government. .fa exercise of its powers under Rule 8(1) the Central Government has framed the Indian Administrative Service (Appoint- ment by Promotion) Regulations, 1955 (hereinafter referred to as the Regulations) laying down procedure of selection for appointment to the service by promotion. Regulation 3. provides for constitution of a Committee consisting of the Chairman of the Union Public Service Commission or a member of the Commission and other members as specified in column 2 to the schedule to the Regulations. Regulation 5 provides that the Committee shall ordinarily meet at intervals not c exceeding one year to prepare the list of such members of the State Civil Service found suitable for promotion to the service on an overall relative assessment of the service. This list prepared by the' Committee is forwarded to the Commission by the State, Government ·along with the records of membe·rs of those selected as well as of those proposed to be superseded together with the observation of the State Govern- ment on the recommendation' of the Committee_ Regulation 7 pro- vides that the Union Public Service Commission shall consider the list along with the documents received from the State Government and on its approval the list so approved shall form the Select List of the members of the State Civil Service. The Select List shall ordinarily be in force until a fresh list is prepared and approved for the subsequent year. Regulation 8 lays down that appointment of members of the ·State Civil Service shall be made by the Central Government on the recommoindations of the State Government in the order, in which the names of members of the State Civil Service appear in the Select List. These Regulations clearly provide for the selection of officers of the State Civil Service on merit on the overall relative assessment of their service record. In the process of preparing the select list if the seniors are not found suitable for promotion and their names in the select list is l)Ot included and, if junior officers are found suitable for the inclu- sion of their names in the Select List, the seniors stand.superseded, as the selection is made on merit and not on the overall relative assess- ment of their service record. In the process of preparing the select list if the seniors are not found suitable for promotion and their names in the select list is not included and, if junior officers are found suitable for the inclusion of their names in the Select List, the seniors stand superseded, as the selection is made on merit and not on the basis of seniority

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544

SUPREME COURT REPORTS

[1987] l S.C.R.

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Learned counsel for the appellants/petitioners assailed the valid- ity of the Select List of 1978, 1979, 1980 and 1983 on the ground that the Committee did not record any reasons in superseding the appel lants and petitioners. Support was drawn from the decision of this Court in Union of India v. Mohan Lal Capoor & Ors., [1974] I SCR 8 797 where Select List was quashed on the ground that the Committee had failed to record reasons in superseding senior officers. The Court held that it was incumbent on the Sdection Committee to have stated reasons in a manner which. would disclose as to how the record of superseded officers st.ood in. relation to the record of those officers who were preferred for selection. The Court further held that the Selection Committee was under a mandatory obligatiJn to record reasons in superseding senior officers, in the absence of any such reasons the Select List was vitiated. Regulation 5(1) to 5(5) which came up for interpretation before this Court in Capoor's case were as under:

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5(1) The Committee shall prepare a list of such members of the State Civil/Police Service as satisfy the condition specified in regulation 4 and as are held by the Committee to be suitable for promo! .on to the service. The number of members of the State Civil/Police Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period twelve · months commencing fron the date of the preparation of

the list.

(2) The Selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to .seniority.

(3) The names of the offrcers included in the list shall be arranged in order of seniority in the State Civil/Police Service.

Provided that any ju11ior officer who in the opinion of the Committee is of exceptional merit and suitability may be assigned a place in the list higher than that of offi- cers senior to him.

1

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

R.S. DASS ETC. ETC. v. UNION OF INDIA [SINGH, J.]

545

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

A

On construction of the aforesaid Regulation 5(5) this court held that it was a mandatory obligation on the Committee to record reasons if it B proposed supersession of a senior member of the State Civii Service. The court further held that since no reasons were recorded the Com mittee had failed to discharge a mandatory obligation, as a result of which the list prepared by it was rendered illegal. Regulation 5 was, however, amended by notification dated 3.6.197'7, and after the amendment Regulation 5( 4) and (5) read as under:

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5(4) "The Selection Committee shall classify eligible offi- cers as "Outstanding", '"Very Good:' "Good" or "Unfit" as the case may be on an overall relative assessment of their service record.

5(5) The list shall be prepared by including the required number of names, first from amongst officers finally_ clas sified as "Outstanding", then from amongst those similarly classified as "Very Good" thereafter from amongst those similarly classified as "Good" and the order of the names inter se within each category shall be, in the order of their seniority in the State Civil Service."

Under the amended Regulations the Committee is required to categorise officers in four categories on the basis of overall assessment of service record of officers. After categorisation the committee is required to place the name of those officers first on the list who may be categorised as "Outstanding" and thereafter names of those officers shall be included who are found to be "Very Good". And only thereaf ter the names of those officers shall be included who may be cate , gorised "Good". If in this process any seniur officer is superseded the .amended Regulation 5(5) rioes not require the Committee to record reasons for the supersession. The amended·Regulations have brought in significant change and now the process of Selection as contemplated by Amended Regulations do not require the Selection Committee to record reasons for the supersession of officers of the State Civil Service.

In Capoor's case the Regulation 5(2) as it then existed laid

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546

SUPREME COURT REPORTS

[1987] 1 S.C.R.

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A down that selection for inclusion in the list shall be based "~n merit and suitability with due regard to ,.eniority" which meant that merit and suitability in all respects was the governing consideration and seniority was to play a secondary rol.e, but if merit and suitability were roughly equal, seniority was the determining factor or if it was not reasonably possible to assess inter-se merit and suitability of two eligi- ble officers and come to a firm conclusion, seniority tilted the scale. Regulation 5(5) as it then existed laid emphasis on the role of seniority as it laid down that in the process of selection, review or revision of the select list if it was proposed to sup·~rsede any member of State Civil Service, the Committee shall recrnd its reasons for the proposed supersession. The necessity to record reasons clearly implied that c senfority of an officer in the State Service could not be ignored. altogether. This Court in Capoor's .:ase held that if senior officer was superseded by including the name of a Junior Officer in the select list in preference to a senior officer, the Committee was under a manda- tory legal obligation to record reasons in a manner which would disclose how the record of each offic·!r superseded, stood in relation to record of others who were to be preferred. The court further emphasi- ~ed that recording of reasons was necessary as it provided a visi- ble safeguard against possible in justice and arbitrariness in making the selection. It appears that the Committee making selection constituted for the purpose of preparing the select list felt difficulty in recording reasons, in the precise manner as laid down by this Court. The ques- ti on was considered by a conference of Chief Secr~taries held in May, 1976 and it appointed a Committee to consider the question. The Committee noted that consequent ·to the judgment of this Court in Capoor' s case, there was tendency for the Selection Committee to go by seniority subject to the rejection of the unfit, even though Regula- tions prescribed merit as the criteria for selection. The Committee reported that the system of categori,.ation of officers for promotion to the Higher Post should be followed in case of All India Services also. After considering the report of the Committee, the Conference of Chief Secretaries made recommendations to the Union Government that necessary amendment should be made in the Regulations provid- ing for grading of eligible officers a.s "Outstanding", "Very Good", "Good" for the purpose of being placed in the select list to ensure that select list is drawn upon the basis of merit and suitability and to ob- viate the necessity of giving reasons for the supersession of any officer.

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In pursuance to the recommendations of the Chief Secretaries Conference the Central Government in consultation with the State Governments and the Union Public: Service Commission, amended

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R.S. DASS ETC. ETC. v. UNION OF INDIA (SINGH, J .)

547

Regulation 5 by its notification No. 11089/6/76-AIS(l)-A dated A 3.6.1977.

" p

The amended provmons of Regulation 5 have curtailed and restricted the role of seniority in the process of selection as it has given primacy to merit. Now the Committee is required to categorise the eligible officers in four different categories, namely "Outstanding" B "Very Good", "Good" and "Unfit" on overall relative assessment of their service records. After categorisation is made the Committee has to arrange the names of officers in the select list in accordance with the procedure laid down in regulation 5(5). In arranging the names in. the select list the Committee has to follow the inter-se seniority of officers ~ithin each category. If there are five officers fall within the "Out- C standing" category their names shall be arranged in the order having regard to their inter-se seniority in the State Civil Service. The same principle is followed in arranging the list from amongst the officers falling in the category of "Very Good" and "Good". Similarly if a junior officer's name finds place in the category of "Outstanding", he would be placed higher in the list in preference to a senior officer D included in the "Very Good" or "Good" category. In this process a junior officer if categorised "Outstanding" or "Very Good" would supersede his seniors. This cannot be helped. 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 E 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. When merit is the criteria for the selection amongst the members of the service, no officer has legal right to be selected for promot_ion, except F that he has only right to be considered along with others. In Gurdayal Singh Fiji v. State of Punjab & Ors., [1982] 1 SCR 904. This court held that a member of State Civil Service has no legal right to promotion, instead he has only right to be considered along with others. But assuming that appellants/petitioners stood superseded by the reason that junior officers to them were included in the select list, no reasons G were necessary to be recorded in view of the amended statutory provisions.

Learned counsel urged that reasons if recorded ensure objec tivity and impartialiiy. In !he absence of reasons the Committee may act in arbitrary manner to supersede senior officers which would' be H

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SUPREME COJRT REPORTS

(1987] 1 S.C.R.

A violative of Article 14 and 16 of the Constitution. We find no merit in the submission. Article 16 ensures equality in matters relating to appointment and promotio'! to an officer or post under the State. It t!njoins State not to practise descrimination in matters relating to appointment and promotion. A member of the State Civil Service eligible for selection for promotion to th~ l.A.S. has right to be considered B alongwith others for selection for· promotion. If eligible officers are considered on merit, in an objective manner no Govt. servant has any legal right to insist for promotion nor any such right is protected by the Article 14 or 16 of the Constitution. Article 16 does not insist that reasons should be recorded for the non-selection of a member of a State Serviec.

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Learned counsel urged that in the absence of statutory provision, principles of natural justice require the selectica committee to record reasons for the supersession of officers to enable them to make re- presentation against their superseo:sion.

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We find no merit in the submissioin. Principles of natural justice do not require an administrative i-uthority or a selection committee or an examiner to record reasons for the selection or non-selection of a person. In the absence ot' a statutory provision an administrative authority is under no legal obligat,on to record reasons in support of its decision. There is no scope for applying principles of natural justice in E matters rel~ting to selection of suitable members of State Service for promotion to a higher service. In Mohan/al Capoor's case similar sub- mission was htade that principles of natural justice require communi· cation of reasons t© the officer proposed to be superseded to enable

him to make representation. Both the learned Judges who constituted -

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the Bench repelled the contention. Mathew, J. held that no notice was required to be given t@ a senior officer if he was proposed to be superseded in favour of a junior en the ground of his greater merit and suitability, the learned judge further observed that it was not ex· pedient to extend the horizon of natural justice. Beg, J. also rejected the submission that minimal reqdrement of just and fair treatment in such a situation would be to inform the officer to be superseded, the reasons recorded for his proposed supersession to enable him to make representation. On such a ground expansion of scope of natural justice was.not justified.

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The principle of audi alteram partem is a basic concept of princi· pies of natural justice. No one should be condemned without hearing is the essence of justice. Courts of :aw apply this principle to ensure fair

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\ R.S. DASS ETC.ETC. v. UNIONOFINDIA[SINGH,J.]

549

,.. " . play and justice in judicial and quasi-judicial matters. Of late these A

principles llave been extended even to administrative actions also. However, the application of the audi alteram partem rule is not appli cable to all eventualities or to cure all ills. Its application is excluded in the interest of administrative efficiency and expedition. Sometimes legislation itself excludes the application of the rule. It is difficult to

, -~- conceive exhaus.tively all eventualities and circumstances for appli~- B

tion or exclusion of the rule. In A.K. Kraipak & Ors., etc. etc., v. Union of India & Ors., (1970] 1 SCR 457 a Constitution Bench of this Court held these rules operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to .._. sectlre justice or to prevent miscarriage of justice. If that is their C purpose, there is no reason why they should not be made applkable to -.. administrative proceedings also, expecially when it is not easy to draw the line that demarcates, administrative enquiries from quasi-judicial ones, and an unjust decision in an administrative enquiry may have a more far reaching effect than a decision in a quasi-judicial enquiry. The Bench, however, further observed that the concept of natural. D justice have under gone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts al)d circumstances of that case, the frame-work of the law under which the enquiry is held and the ~ Constitution of the Tribunal or the body of persons appointed for that 1 purpose. '

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In Union of India v. Col, J.N. Sinha & Anr., (1971] '1 SCR 791 this Court held that if a statutory provision either specifically or by necessary implication excludes the application of any or all the princi ples of natural justice then the court cannot ignore the mandate of the , l~gislature or the statutory authority and r~ad into the concerned pro- ~· 7 visions the principles of natural justice. Whether the exercise of a p<>wer conferred should be made.in accordance with any of the princi ples of natural justice or not depends upon the express words of the provision conferring power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.

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In Chairman, Board of Mining Examination & Anr., v. Ramjee,

[1977) i SCR 904 Krishna Iyer, J. speaking for the Court observed:

"Natural Justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision H

550

SUPREME COURT REPORTS

[1987] 1 S.C.R.

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maker to the man proceeded _against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumsti:nces of such situation, no breach of natural justice can be comp:.tlned of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical in this nor fanatical but should -be flexible yet firm jurisdiction."

It is well established· that rules of natural justice are not rigid . rules~ they are flexible and their appliciiion depends upon the setting and the back-ground of statutory provision, nature of the right which C may be effected and the. consequences which may entail, its applica tion depends upon the facts and circumstances of each case. These . principles do not apply to all cases and situations. "Applications of these uncodified rules are often excluded by express provision· or by implication. In Union of India & Anr., v. Tulsiram Patel etc., [1985] 3 D SCC 398 a Constitution Bench of this Court considered the scope and exteni of applicability of principles of natural justice to administrative actions. Madon, J summarised the position of law on this point and observed as follows:

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"So far as the audi alteram partem rule is concerned, both in England and in India, it is well established that where a , righi to _a prior notice and an opportunity to be heard before ·an order is passed would obstruct the taking of prompt action such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the re levant statutory provisions warrant its exclusion; nor can . the audi a/teram partem rule be invoked if importing it · would have the effect· of paralysing the . administrative process or where the, need for promptitude or the urgency of taking action so demands, as pointed out in Meneka Gandhi's [1978] 2 SCR 62<1 cases."

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In the instant cases-statutory Regulations do not expressly or by impli- cation apply the rule of audi alteram partem in making the selection. On the other hand the scheme contained under the regulations exclude the applicability of the aforesaid rule by implication. Select list is ' prepared each year which ordinarily continues to be effective for a H year or till the fresh select list is prepared. If during the process of

R.S. DASS ETC. ETC. v. UNION OF INDIA [SINGH,J.l

551

selection a senior officer is proposed to be superseded by virtue of not being included in the select list, and ifopportunity is afforded to him to make representation and only thereafter the lisf is finalised, the pro cess would be cumbersome and time consuming. In this process it will be difficult for the committee to prepare and finalise the select list within a reasonable perio9 of time and the very purpose of preparing the select list would be defeated. Scheme of the Regulations therefore clearly warrants exclusion of principle of audi alteram partem. 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 neeessary to be afforded to him for making representation against the proposed supersession.

The next submission was that the select list prepared for 1978 was vitiated for the non-compliance of Regulation 6(iii) inasmuch .as the State Govt: failed to forward to the Commission reasons recorded by the Committee for supersession of seniors as required by that Regu lation. It' was urged that even after deletion of Regulation 5(5) which required Committee to record reasons for super~ession of an officer by the Notification dated June 3, 1977, Regulation 6(iii) remained un amended, therefore, the Committee was under a mandatory duty to record reasons, and the State Govt. was required to forward the same to the Commission. Since the Committee failed to comply with the mandatory obligation, the select list prepared for the year 1978 stood vitiated. To support this submission reliance was placed on the deci sion of this Court in Chothia's case. In that case interpretation of Regulation 5 of the Indian Forests Service (Initial Recruitment) Regu lation of 1966 came up for consideration. Regulation 5 laid down method for preparation of list of suitable officers of State Forest Service adjudged by the Selection· Board for appointment to posts in the senior and junior scales of Indian Forest Service. Regulation 5(2) was as under:

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"5(2): The list prepared in accordance with sub-regulation (I) shall then be referred to the Commission for advice, by G the Central Govt. alongwith-

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

(b) the records of all other eligible officers of the Slate H

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Forest Service who are not adjudged suitable for inclusion in the list, together with the reasons as recorded by the Board for their non-i11clusion in the list."

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Construing the aforesaid regulation this Court held that both the B clauses (a) and (b) of Regulation 5 must be complied with before the recomendations are sent to the Commission. Clause (b) of the Regula tion 5 laid down that where eligible officers of the State Forest Service were not found suitable, reasons must be given by the Board for their non-inclusion in the select list. The Court held that Regulation 5(b) which provided for recording reasons was mandatory and it must be complied with. But in view of the amendments made in Regulations C under consideration providing for selection on the basis of categorisa tion of members of the State Ci vii Service into different categories on the assessment of their servi•:e records, principles laid down in Chothia's case are not applicabk After the amendment of Regulation 5 the Committee was under no legal obligation to record reasons for D supersession of a senior officer and for that reason it did not record any reasons, therefore, the que;tion of forwarding any reasons by the . State Government to the Commission did not arise. Regulation 6(iii) which required the State Government to forward to the Commission along with reasons as recorded by the Committee for the proposed supersession of any member of the State Civil Service was consistent E with the unamended R~gulation 5(5) which required the Committee to record reasons for supersession of a member of the State Civil Service. · By Notification No. 11039/3/78-AIS(l) dated June 2, 1979 Clause (iii) of Regulation 6 was deleted as a result of which the State Govt. ceased to the under any obligation to forward to the Commission reasons recorded by the Committee for supersession of officers. Having regard F to .the legislative history and the purpose and the object which 1 as sought to be achieved by the •mendments there could be no mam.a tory legal obligation on the Committee to record reasons. Regulation 6(iii) merely required the State Govt. to forward reasons if recorded for supersession of the officern to the Commission, but if no reasons were recorded the State Govt. was under no legal obligation to for- G ward the same to the Comm:1ssion and its non-compliance did not vitiate the select list. Since the entire system of selection has been changed on account of amendment in the regulations, the principles laid down in Chothia's case do not apply to the instant cases. The Madhya Pradesh High Court in P. C. Pradhan v. Union of India & Ors., [1981] 1 SLR 1 and the Punjab and Haryana High Court in J.S.

H Chopra's [1980] 2 ILR Punj. 477 case have taken similar views.

R.S. DASS ETC. ETC. v. UNION OF INDIA [SINGH, J.)

553

The Appellants/Petitioners entertain an apprehension that in the A

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 selec tion on merit confe~s 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 treat ment by the committee. The scheme contained in promotion regula tions and the criteria prescribed therein for preparing the. select list do not justify any such apprehension. The principal object of the promo tion system as contained in the regulations is to secure the best possi- ble 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 Uniol\ 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 there after final shape is given to the selection list. There are, therefore, adequate checks and safeguards at different stages by different ,au thorities. 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 promo tion, the power of selection becomes wide and liabfo 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 Commitee is constituted by high ·ranking responsible officers presided over by Chairman or a Member of the Union Public Service Commission.

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There is no reas0n to hold that they would not act in fair and impartial A manner. in making selection. The recommendations of the selection C:ommittee are scrutinised by the State Govt. and if it finds any dis .. · crimination ·in the selection it has power to refer the· matter to the Commission with its recommendations. The Commission is under a legal. obligation to .,;,nsider the views expressed by the State Govt. B along with the records of officers, before approving the select list. The selection committee and the Commission both include persons having requisite knowledge, experienre 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 selec . tion would be made arbitrarily. Where power is vested in high author- ity there is a. presumption that the same would be exercised in a reasonable manner and if the selection is made on extraneous consi derations, in arbitrary manner the courts have ample power to strik~ down the same and that is an adequate safeguard against the arbitrary exercise of power.

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It was urged that the selection merely based on the appraisal of service record is arbitrary and it is bound to cause injustice as entries in the character roll of members of the State Service depend upon the whiJ!is of the recording officer: It is true that the service records con tain remarks which sometimes may not be fully justifie<!, but for that · reason the scheme contained in the rules and regulations for promo E · tion cannot be characterised 1D1reasonable. There are various methods of selection viz.· by competitive examination written test-cum-viva . voce, or by assessment of service records. For the purpose of recruit ment to the Indian Administrative Service from amongst the officers · . of the State Civil Service, latter method namely, selection on the basis of scrutiny of service records has been accepted. This is a well recog F nised system for making selection. In Parvez Qadirv: Union of India& Ors., (1975) 2 SCR 432 while considering similar submission the Court observed:

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- .''The pasi- performance of an officer' being one of the criteria for making selection, the only way to adjudge their suitability is by perusal of ccinfidential records. It is true that confidential records do not sometimes give a true picture due to the vagaries of the recording officer. The human fallibility and want of objectivity in the superior officer are factors which cannot be eliminated altogether. For that matter one can ask what method is perfect. For this reason, certain safeguards have been provided in order

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555

to make them as objective as possible. If there is an adverse A entry against any officer that officer is given an opportunity to explain. After the· explanation is given, the superior officer as well as the Govt. ultimately decide whether that remarks by the recording officer was justified or not, and if it is not justified the Govt. can always order its deletion. Sometimes vagary may enter into the service confidenfials, B and if cannot be postulated that all superior officers who have been empowered to finalise such entries will suffer from any of those traits l;lecause the actions of the officer concerned may not ,have any immediate impact upon him and consequently his sense of objectivity will not be dimmed or strained. In our view, often enough, the entries C in confidential records are themselves an insignia of the capacity and capability of the maker as a superior officer as •. well as a commentary on the quality of the officer against wJ:iom that confidential remark is· being noted. But those who are charged with the duty to over see that these entries are fair, just and objective quiie often do intervene and D ractify any entry on representation being made against it at the proper time. In these circumstances, we do not think that the method of selection based on past performance as disclosed by the confidential records is not the proper method for adjudging suitability of the officer concerned." .

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An ancillary argument was raised to demonstrate discrimination. It was urged that the regulations do not lay down any guidelines for categorisation of officers of the State Service into various categories with the result the Committee even if acting bonafide may apply diffe rent standards at different times. The argument was further developed that the Committee members change and, therefore, the same Com mittee or differen't Committee is likely to apply its own standard in judging the suitability of officers in different manner in different years which would result into discrimination. This submission is founded on the assumption that the Committee is free to categorise officers at its sweet .will but that as,sumption is misconceived. Under Regulation 5 the Committee has to categorise officers on the basis of their service records into four categories as discussed earlier. The categorisation is objectively made on the material available in the service tecords of the officers. There is hardly any scope for applying different standards or criteria at different times as the service records namely the character roll entries would indicate the category of the officers as adjudged by the authority recording annual confidential remarks. There is no dis-

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SUPREME COURT REPORTS

(1987] 1 S.C.R.

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pute that in Punjab, under the State Govt's instruction the authority competent to record annual remarks in the character roll of members of the State Civil Service, has been directed to indicate the category of the officer, e.g. whether the officer is "outstanding". "very good" or "good''. The annual confidenLal remarks as available in the character roll of officers of the State Civil Service therefore indicate the category to which a particular officer may belong. We were informed by ?"" Counsel for the Union Govt. during the hearing of the cases that under instructions issued by the Union Govt. all the State Govts. are follow- ing similar pattern in categorising members of the State Civil Service in the annual remarks made in their confidential records. This has brought uniformity in the ct,aracter roll entries. Since category of members of State Civil Service is available in their service record, the c Committee has no discretion to disregard the same. The Committee has to categorise the members of the State Service on the basis of +- entries available in their charncter 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 different standard or test in preparing the list,"or to practise discrimination. We, therefore, find no merit in the submission that Regulation 3 and 5 are discrimi- natory and they violate Artick 14 and 16 of the Constitution.

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Learned counsel urged that recommendations of the Selection Committee which prepared t'1e select list for the year 1979 was illegal ~

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E on account of the participation of Shri I.C. Puri, as he was not entitled to be a member of the Selection Committee, his participation in the deliberation of the committe'e was unauthorised. Regulation 3( 1) pro- vides that a committee shall be constituted, consisting of the Chairman of the Commission or any other member of the Commission represent- ing it and other members as specified in corresponding column 3 of the schedule. The proviso to the Regulation lays down that except the Chairman or the member of the Commission, no other person who is not a member of the service shall be member of the Committee. It further provides that the Central Govt. may after consultation with the State Government amend the schedule. Other members of the Com- mittee as specified in Column 3 of the schedule to the regulation as G applicable to the State of Pm jab specified the (I) Chief Secretary to the Govt.; (2) Development Commissioner (3) Senior most Financial

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Commissioner, (4) A nominee of the Govt. of India, not below the :r

rank of Joint Secretary as members of the Committee.

Senior posts in the Indian Administrative Service not below the rank of Commissioner are determined in accordance with the schedule

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to the Indian Administrative Service. (Fixation of Cadres Strength) Regulations 1954. The cadre regulation did not provide for any post of Development Commissioner for the State of Punjab as a result of which there was no separate post of Development Commissioner. Instead, the Financial Commissioner was made Incharge. of the Development Department and he was designated as Financial Commissioner. (Development). Shri I.C. Puri who was posted as the Financial Commissioner (Development) was the Incharge of Develop ment Department at the relevant time and as such he was appointed a member of the Selection Committee and admittedly.he participated in the deliberations of the Selection Committee which held its delibera tion on November 39, 1979 for preparing the select list of 1979. In the affidavit filed on behalf of the State of Punjab it has been asserted that the Development Department was under the charge of the Finan cial Commissioner who was designated as Financial Commissioner (Development) and Shri Puri who was holding the rank of the Commissioner was the Secretary Incharge of the Development Department.

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On behalf of the Appellants/Petitioners it was strenuously urged that Shri Puri was not the Secretary Incharge of the Development Department ot\ 30. ! 1.79. Instead Hardayal Singh was Incharge of the Development Department as Special Secretary in the Department of Rural Development, Panchyats, Agriculture and Forests. In the counter affidavit filed on behalf of the State Govt. it is asserted that Hardayal Singh was merely posted Special Secretary to the Govt. He was neither holding the rank of Commissioner nor he was the Secre tary Incharge of the Development Department. However, Hardayal Singh was given the rank of Secretary simply to protect his special pay in the time scale of selection grade in the Indian Administrative Service. He was not Incharge of the Department as Secretary, instead he was working under over all control of Financial Commissioner (Development) namely, Shri I.C. Puri. This finds support from the note recorded by Hardayal Singh on 5.12.79 requesting the Chief Sec retary for allocation of work between the Financial Commissioner (Development) and Special Secretary. The relevant note is available on record. It is thus evident that Hardayal Singh was working under G the over all control of Shri I.C. Puri who was the Financial Commis sioner (Development) and Secretary Incharge of Development Department. The material placed on record leaves no room for any doubt that Shri J.C. Puri designated as Financial Commissioner (Development) was also discharging the duties and functions of the Development c.ommissioner. He was, therefore, holding the dual

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[1987] l S.C.R.

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charge as no separate post of Development Commissioner had been sanctioned by the Govt. These facts clearly show that for all purposes Shri Puri was working as Development Commissioner. As Financial Commissioner (Developinent) he was exercising same powers and dis- charging same functions which could be performed by a Development Commissioner, therefore he was competent to participate in the delibe- rations of the selection committee. While considering this question we cannot be oblivious of the faci that at no stage any objection was raised against functioning of Shri Puri as a ·member of the Seleckm Committee or his participation in the deliberations. There is further no allegations of ma/a fide or bias against Shri Puri. There is evidence on record to show that recommend 3tions of the Selection Committee c constituted under Regulation 3 were unanimous, which were scruti- nised by the State Govt. and the Union Public Service Commissions before the same were approved.

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Learned Counsel placed str3ng reliance on the decision of this Court in A. K. Kraipak's case. In that case initial recruitment to the lodian Forest Service was challenged. In pursuance of the Indian Forest Service (Initial RecTUitmer.t) Regulations, 1966 a special Sdec- lion Board was constituted for Selecting officers for appointment to the Indian Forest Service, from officers of the forest department of the State of Jammu and Kashmir. The Acting Chief Conservator of Forests of the State was a member of the Selection Committee which E made recommendations for the recruitment, he participated in the selection board's deliberations in preparing the list of selected candi- dates in order of preference, although he himself was a candidate for selection: The Court held that the participation of the Acting Chief Conservator vitiated the recom::nendations made by the Selection Board as there was conflict between the· Acting Chief Conservator's personal interest and his duty and further he was a Judge in his own cause. The Court further held th3t taking into consideration probabi- lily and ordinary course o( human conduct, there was reasonable ground for believing that the Acting Chief Conservator was likely to have been biased. In these circumstances the Court held that the selec- tion made by the Board could not be considered to have been made fairly and justly as. it was influenced by a member who was biased. Principles laid down in Kraipak's case do not effect the validity of the recommendations made for the preparation of select list of 1979 as Shri J.C. Puri wa~ neither biased against any of the appellants/petition- ers, nor there was, conflict between his personal interest and duty. Shri Puri had no interest in the inclmion or exclusion of a member of the H State Civil Service nor he had any personal interest in preparing the

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list. There is no allegation of bias or malice against Shri Puri, his A participation in the meeting of the Selection Committee did not render the select list of 1979 illegal.

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Shri B.S. Khoji, learned counsel for Pritam Singh and other petitioners in the writ petitions urged that Promotion Regulations 3, 5 and 7 are ultra vires rule 8 and the entire selection made in pursuance of the impugned Regulations are illegal. Rule 8( I) provides that the Central Govt. may on the recommendations of the State Government and in consultation with the Commission and in accordance with such Regulations as the Central Govt. may frame after consultation with the State Governments and the Commission, recruit to the Indian Administrative Service persons by promotion from amongst the sub- stantive members of State Civil Service. According to the leamed. counsel, Rule 8(1) confers power on the Central Govt. to make recruitment to the Indian Administrative Service by promotion from amongst the members of the State Civil Service on the recommenda tions of the State Govt., in consultation with the Commission. How ever, Regulations 3, 5 and 7 rob the State Govt. of its power of making recommendation for recruitment to the service. The plea of ultra vires can be sustained if Regulations 3, 5 and 7 arc inconsistent with Rule 8(1). In our opinion Rule 8(1) confers power on the Central Govt. to make recruitment to the Indian Administrative Service by promotion from amongst the members of the State Civil Service on the recom mendations of the State Govt. .in consultation with the Commission. It further contemplates that the recommendations of the State Govt. and consultation with the Commission which is constitutional obligation as envisaged by Art. 320 of the Constitution, would be in accordance with regulations whicl) the Central Govt. may frame after consultation with ihe State Govt. and Commission. Rule 8(1), therefore, contemplates the State Govt's. recommendation and the consultation of the Commission in accordance with the regulations framed by the Central Govt. The Central Govt. has framed promotion regulations which. provide method and manner of selection. Regulation 3 provides for constitution of selection committee to prepare list of suitable officers in accordance with Regulation 5. The Jist so prepared is forwarded by the State Govt. to the Union Public Service Commission along with records and the observations of the State Govt. in accordance with Regulation 6. Thereafter the Commission considers the list under Regulation 7. The Commission may make any change in the list received from the .State Govt. and thereafter it may approve finally with such modification as in its opinion it may be just and proper. The list as finally approved by the Commission forms the select list of

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SUPREME COURT REPORTS

(1987] 1 S.C.R.

A members of State Civil Service which ordinarily remains in force until its review and revision. Regula! ion 9 lays down that the appointment of members of State Civil Servic~ shall be made by the Centri'l Govt. on the recommendations of the :itate Govt. in the order in which their names appear in the select list. Io our opinion these regulations do not in any manner impinge upon the powers of the State Govt. to make B recommendations to the Central Govt. as contemplated by Rule 8.

There is, therefore, no merit in the petitioners' submission.

On behalf of Pritam Singh, Petitioner, it wasurged that the State Government acted ma/a fide in deliberately delaying its comments to the Commission on the list of 1930 and thereby it manipulated appoint- C ment of Tejinder Singh, M.P. Mitra and Gurdev Singh. In'.order to appreciate this submission it is necessary to refer to the facts which are not disputed. The names of Tejinder Singh, M.P. Mitra and Gurdev Singh were included in the select list approved for the ye~~ 1979, and as such they were entitled to promotion during the period of currency of that list. On December 31, 1980' Selection Committee constituted D under Regulation 3 met to prepare fresh select list for the year 1980. The list so prepared did not include the names of ~foresaid officers. But before the 1980 list could be finally approved by the Commission, the aforesaid officers were promote<! and _appointed to J.A.S. In the background of these facts it was urged that the State Government deliberately did not forward its comments-to the Union Public Service E Commission on the proposed ~:elect Lisi of 1980 as a result of which, delay was caused in the approval of the 1980 list. In the counter affidavit filed on behalf of the ~>late Government allegations regarding •ma/a fide have been denied. NJ material has been placed before us to substantiate the plea of mala fide. Merely, because the State Govern ment forwarded its recommendations with delay is not sufficient to justify inference that the delay was purposive with a view to grant undue favour to the officers r.amed above. Regulations contemplate preparation of select list each year. The process of Selection, prepara tion and its final approval in, 1olves participation uf three authoritie~ namely the Selection Commitlee constituted under Regulation 3, the State Government and the lnion Public Service Commission. The records of all the eligible officers are scrutinized by the Committee, State Government and the Commission before the Select List is finally approved and if there is any difference between the authorities, con sultation between the State Govt. and the Commission is bound to take place. These steps which are necessary for the approval of select list are time consuming. In actual practice sometimes delay may be inevitable. As the select list is to be prepared each year the State

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Government should take action well in advance to avoid any delay. If A undue delay is. caused in preparation of select list, it provides occasion for suspicion against the authorities and it is likely to generate frustrn tion and heart burning among the members of the State Civil Service which would obviously be detrimental to public administration. The select list of 1979 which included the names of Tejinder Singh, M.P. B Mitra and Gurdev Singh continued to be effective under Regulation 7(4) till another select list for the subsequent year was finally approved. There is no dispute that the aforesaid officers were pro moted and appointed to I.A.S. before the approval of the select list for the year 1980. Therefore no exception can be taken to the validity of their appointment. We are, further of the opinion that delay made by the State Government in forwarding its comments to the Union Public . C Service Commission with regard to the 1980 list did not cause any prejudice to Pritam Singh and other petitioners as none of them was selected for inclusion in the 1980 list.

We, therefore, find no merit in the appeals and the writ peti tions. They are accordingly dismissed but there will be no order as to costs.

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A.P.J.

Appeals and Petitions dismissed.

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