UNION OF INDIA versus MOHAN LAL CAPOOR & OTHERS

797

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UNION OF INDIA v. MOHAN LAL CAPOOR & OTHERS September 26, 1973 [K. K. MATHEW AND M. H. BEG, JJ.]

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l.A..S./J.P.S. (Appointment by Pro111otiou) Regulations 1955- Regulation 4(1), 5(1), 5(2), 5t4) & 5(5)-Efject of 11011-co111pliance with the 111andatory duty iniposed by Reg. 5 (5 )-If seniority should b2 do111i11a11t factor-Compe tence of Slate Government to pass rei'ersion orders.

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1955 provides

Natural ;ustice-Notice to superseded officers if necessary. Regulation 4( 1) of th~ Indian Admini!Strative Service/Indian Police the Service (Appointment by Promotion) Regulations, Selection Committee to consider in every year the cases of all substantive members of the respective services who, on the first day of January of that year, had completed not less than 8 years' of continucus service in a post of Deputy Collector/Deputy Superintendent of Police. Under the Com'.mittee has to prepare a list of such members as rsatisfied the condition in reg. 4 and as are held by the Committee to be suitable for promotion to the service. Regulation 5(2) enjoins that '·selection for inclusion in sucn list shall be based on merit and suitability in all respects with due regard to seniority." Regulation 5(4) enjoins that the "List so p~pared shall reviewed or revised every year." Regulation 5(5) says that 1·if in ~he process of seL:ction. review or revision it is proposed to supersede any memb;er of the State Civil/ Police Service the Committee shall record its reasons for the proposed super scssion."

reg. 5( i J

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The respondents have been members of the U.P. Civil (Executive) Service/ U.P. State Police Service. They were brought on the respective select lists of as District I.A.S./l.P.S. in 1961 and 1962 and since Magistrates/Superintendents of Police for a number of years. The respon dents who were eligible for promotion came on the eelect list through the pro- cedure for selection and continued on the select list until the list for 1968 was prepared in 1967 when a number of junior officers in both cases, whose names did not figure in the select list of 1967 were added in the select list for 1968. The rcsppndents were reverted to their substantive posts in the respective State Services. The reason sent to the Union Public Service Commission by the Selection· Committee for the displacement of each of the respondents was that on an "overall assessment, the records of these officers were not such as to justify their appointment to the respective service at this stage in preference to those selected." The High Court quashed the respective select lists and held (i) that the Selection Committee did not comply with the provision of reg. S (S) imposing a mandatory duty upon it to record its reasons for the proposed supersession (ii) that seniority sh0uld be the dominant for making selection for inclusion in the list to be prepared under reg. 5 ( 1) and that merit and suitability were only of ·secondary importance; (iii) that the State Governp meet had acted on the wrong assumption that it was competent to (lass rever sion orde~; (iV) that sinCe the aggrieved officers were punished in the sense that they. were, dealt with in an arbitrary fashion eat.h of them should' have been supplied with the reasons· for the supersession to enable them to make written representation to the UPSC.

factor

Dismissing the appeal to this Court, HEID : per Beg J ., Mathew J. concurring : The mandatory prov1s1ons of reg. 5(5) were not complied with. It was incum9ent on the Selection Com mittee to have stated reasons in a manner which V.'ould disclose how the record of each officer superseded stood in relation to record of others who· were to be preferred particularly as this is practically the only remainin.I!: visible safe guard against possible injustice and arbitrariness in making selections. If that had been. done. facts on service records of officers consiifered bv the Selection committee would have been correlated to the conclusions reached. Reasons arc the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind was applied to the subject

798

, SUPREME COURT REPORTS

[ 1974] 1 s.c.R. matter for a decision wh7ther it was purely administrative or quasi-judicial. They should reveal a rational nexus between the f.1cts considered and the con cl us1ons reached. Only in this way could opinions or decisions recorded be shown to be manifestlY: just ·and reasonable. that preference should be given because a certain kind of process was gone through by the Selection Committe<>. · [820 C-E]

It was not enough to say

Associated Electrical Industries (India) Ltd., Calcutta v. A.I.R. 1967 S.C. 284 and Collector of Monghyr & Ors. v. Goenka & Ors., [1963] 1 S. C.R. 98, roferred to.

Its Workmen Kcshav Prasad

Per Mathew J : The High Court was wrong in saying that seniority was the determining factor and tha~ it was only if the senior was found unfit that the junior could be thought of for inclusion in the list. What reg. 5(2) meant was that fo_r inclusion in the list merit and suitabjlity in all respectS should be the governing consideration and that seniority should play only -a secondary role. It was only when merit and suitability were roughiy equal ·that seniority would be a determining factor, or, if _it was not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to .a firm conclusion, seniority would tilt the scale. The purpose of an annual revision or review was to make an assessment of.. the merit and suitabi~ lity of all the then eligible candidates and make ~ fresh list of the required number of the most suitable candidates from among them. When reg. 5(4) said that the list prepared in accordance with reg. 5 (1) shall be reviewed or revised it really meant that there must be an assessment of the merit and every year, suitability of all the eligible members every year. Though the words used in reg. 5(4) were "review" and "revision", in the process of review or revision, a fresh assessment must be made of the merit and suitability of all the members remaining in the previous list and all other eligible meJD,bers in the concerned If the criteria for selection were merit and suitability from aolong all se.rvice. the eligible members, then the field of selection must comprise of the entire 'category of eligible members of the service. Otherwise the selection would not b' on the basis of merit and suitability among all the eligible members of the Sta~e service. There was no reason to give a go-bye to th,e word ''all" in reg. If merit and suitability should determine 4( 1) as the High Court had done. the choice and that seniority should hecome relevant only when merit and suitability were roughly equal, it was only proper that the fiell of choice Ghould include all the eligible members of the service. When once the selection was made on the basis of merit and suitability with due regard to seniority, the fact that reg. 513) enjoined that the names must thereafter -be arranged according to the·ir seniority in State service was a definite Pointer that the selection must primarity be on the basis of merit and suitability. The whole schemt of· the regulations was to give preferential treatment to merit and suitability. [801 C-D; 802 G; 803 ABD; 804 CD]

Sant Ram Sharma v. State of Raiasth.qn & anr. [1968] 1 S.C.R. 11 and

Mir Ghulam v. Union of India A.J.R. 1973 S.C. 1138, referred to . . - If the State Government could make an appointment under r. 9(2) of tl\e Cadre Rules, there was no reason why it could not terminate it. The normal rule was that a power of appointment carried with it the power to terminate the appointment unless there was an express provision to the contrary. The enabJing power Jodged in the Central Government to direct the termination of the appOint· ment when a report had _been received did not mean that the State Govern· ment was denuded of that power. Rule 9(3) onlv shoW!d that when a report was made under r. 9(2) the Central Government had power to_ dir.,ct the State Government to terminate the appointment. This would show that the ~ower to terminate the appointment_ rested with the State Government otherwise, there was n-:. reason for sub·r. (3) of r. 9 to say that the Central Government might direct the State Government to ter1· nate the apoointment The fact that the State Government should terminate the appointment when the Central Govern ment made the direction to do so. uld be considered only as vesting a pow~r to make the directiOn which it wo'uld not othe,rwise have but for the ) sub.role. It did not me8.n that the State Govemm~nt would lose its power to . terminate the appointment if the Central Government did not make a direction. The vesting of the power in the. Central Government to give a binding direction did not take away the pawer of th'!_ State Government as appointing authority to terminate the appointment. (805 H; 806 A-CJ

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UNION v. M. L. CAPOOR (Mathew, !.)

799

• Inclusi~n of a _name. in the sele~t list at best, c<;>uld give a per~on only an mchoate _ right -ror appointment dunng the year which the select list would be current. When that period was over he had no right to be included in the select list for th.e neXt year. He had only a right to be considered for inclusion in it. It was not possible to lay down aS a general proposition that whenever a selec tion was made on the basis of merit and suitability with due regard to seniority notice to a senior would be required if he was proposed to be passed over in favour of a junior on the ground of his greater merit and suitability. It would not be expedient to extend the horizon of natural justice involved in the audi alterant. r;arteni rule to the twilight zone _of mere expectations, however, great they might be. [806 FG; 807 EF]

test

inclusion

Per Beg. J : The correct view in conformity with the plain meaning, of words used in the relevant rules was that the 'entrance' or for a place on the select list, was competitive and comparative applied to all eligible candidates and not minimal like pass marks at an examination. The Selection Committee had an unrestricted choice of the .best available tram amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candi dates so that merit and not mere seniority was the governing factor. A simple reading of reg. 5(2) clearly indicated this to be the correct view. The required number had to be selected by a comparison of merits of ~11 the eligible candi dates of each year. But in making this selection seniority 1nust play its due role. Seniority would, however, only be one of the several factors affecting assessment of merit as comparative experience in service should be. There could be a Certain number of marks allotted for purpose of facilitating evaluation, to each year of experience gained in the service. When the required number for the lis.t \Vas thus chosen, the respective roles of seniority and exceptional merit would be governed by reg. 5(3). [817 G-H; 818 AB]

talent,

[His lordship did not consider it necessary to decide

(i) whether the State Government exceeded its powers in reverting the respondents and (ii) ·whether the c6ncepts of justice, fairplay and reason required an oppor tunity being given to the respondents before the proposed supersession.]

the questions

Clv!L APPELLATE JURISDICTION : Civil Appeal No. 695 of 1971. From the judgment and decree dated 27-3-1969 of the Allahabad

High Court in Writ Petition No. 2771 of 1968. CIVIL APPEALS Nos. 614-617 of 1971. From the judgment and Decree dated the 27-3-69 of the Allahabad High Court at Allahabad in W.P. Nos. 1330 and 2771, 766 and 767 o( 1968, respectively.

L. N. Sinha, Solicitor General for India, P. P. Rao and S. P.

Nayar, for the appellant (in C.A. No. 695/71).

0. P. Rana, for the appellant (in C.As. 614-617/71 and for res

oondents Nos. 2, 3, 6 and 7 in C.A. No. 605/71). . M. C. Chagla, R. A. Gupta and J. P. Goyal, for respondent No. l (in C.A. Nos. 695 and 616/71)

R. A. Gupta and J. P~ Goyal for respondent No. 1 (in C.A.

·No. 615/71).

R. K. Garg and S. C. Aggarwal, for respondent No. 1 (in C.A.

No. 617 /71).

The Judgments of the Court were delivered by MATHEW J.

I am in full agreement with the conclusion reached by. my ieam~d brother and th~ reas?'ls for it. !n vi~w o~ the _impor tance of certain questions which anse for cons1derat10n m tlus case, I think it meet that I should express my views upon those questions. 11-L392Sup.Cl/74

800

SUPREME COURT .l\EPORTS

[ 1974] 1 fi.C.R.

The first question for consideration is whether the }ii~ Coutt .w.as right in it& interpretation of Regulation 5 (2 ~ of the lnrtian Adhi!ms trative Service/Indian Police Service (Appomtment by Promot10n) Regulations 1955 (hereinafter called the "Promotion Reguiations") framed und~r sµb-rule ( l) of rule 8 of the Indian Aciministrativ.e ~er­ vice Indian Police Service (Recruitment) Rules, 1954 (heremarter called the "Recruitruent Rules") that se!liority should be the dofnina· nant factor for making selection for inclusion in the list to be prepared under Regulation 5 ( 1) and that merit and suitability are only of se condary importance.

:Regulations 4 and 5 of the Promotion Regulations read :

"4(1) Each Committee shall meet· at intervals not ex ceedi.1g one year and cousider the cases of all substantive members of the State Civil/Police Service who on the first ·day of January of that year, had completed not less than eight years of continuous service (whether officiating or substantive) in a post of Deputy Collector/Deputy Super intendent of Police.

(2) Notwithstanding anything contained in sub-regula tion ( 1), the Col1)ll1irtee shall not ordinarily consider the cases of the members of the State Civil/Police Service who have attained the age of 52 years on.the first day of January of the year in which the meeting of the Committee is held: Provided that a member of the State Civil/Police Service whose name appears in the Select list in force immediately before the date of the meeting of the Committee shall be con, sidered for inclusion in the fresh select list to be prepared by the Committee even if he has in the meanwhile attained the age of 52 years.

5 ( 1). The Committee sha]J prepare a list of such members of the State Civil/Police &"vice a~ satisfy the condition speci fied in regulation 4 and as are held by the Committee to be suitable for promotion to the service. The number of mem list bers of the State Civil/Police Service included in the shall not be more than twice the . number of substantive vacancies anticipated in the course of the period of twelve ~onths commencing from the date of the preparation of the hst.

(2) The selection for inclusion in such list shall be based on .m~rit and suitability in all respetcs with due regard to sen1or1ty.

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(3) The names of the officers included in the list shall be ll!ranged in order of seniority in the State Civil/Police Service:

Provid~d th~t any juni?r officer who in the opinion of the Committee 1s of exceptional merit and suitability may be assig~ed a place in' the list higher than that of officers senior to him. _ every year.

· ( 4) The list so prepared shall be reviewed and revised

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UNION v. M. L. CAPOOR (Mathew, J.)

801

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( 5) If in the process of selection, review or revision it is propos<;d to supersede any member of the State Civil/ Police Service the Committee shall record its reasons for the proposed supersession·" · to Now, ui1der Regulation 4(1) it is the duty of the Committee consider in every . year the cases of all substantive members of the State Civil/Police Service who on the first day of January of that year, had completed .not Jess tlmn eight years' of continuous .service (whether officiating or substantive) in a post of Deputy Collector/Deputy Superintendent of Police.

Regulation 5 (1) makes it obligatory that the Committee shall prepare a list of such members as satisfy the condition in Regulation 4 and as are held by the Committee to be suitable for promotion to the service.

;\nd, when Regulation 5(2) says that the selection for inclusion in the list shall be based on merit and suitability in an respects with due regard to seniority, what it means is that for inclusion in the list, merit and suitability in all respects shsould be the governing conidera tion and that seniority should play only a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining fadtor, or if it is not farily possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale. But, to say, as the High Court has done 'that seniority is the determining factor and that it is only if the senior is found unfit that the junior can be thought cf for inclusion in the list is, with respect, not a correct . reading of Regulation 5(2). I do not know what the High Court would have said. had Regulation 5(2) said: "Selection for inclusion in the select list shall be based on seniority with due regard to merit and suitability". Would it have said that the interpretation to be put upon the hypothe tical Sub-regulation (2) is the same as it put upon the actual Sub· regulation ?

As I said Regulation 5 ( 1) makes it obligatory that the Commit tee shall prepare a list of such members who satisfy the condition laid down in .Regulation 4 and. as are suitable for promotion. Now, who are the members who satisfy the condition laid down in Regulation 4 ? All substantive members of the State Civil/Police Service who had completed not less than eight years' continuous service. And, who are the members who are suitable for promotion? Those members who were selected on the basis of their 'merit and suitability with due regard to seniority under Regulation 5 (2). No doubt, the number of members included in the list shall not be more than twice the number of substal\tive vacancies expected to arise in the course of a period of twelye months from the date ot the preparation of the list. The .list so prepared has to be sent to the Union Public Service Commission the under Regulation 7 (2) by the State Government along with in records of the mem]?ers of the State Civil/Police Service included the list as well as the records of all the members of the State Civil/ Police Service who are proposed to be wperseded by the recommenda tion made in the list and the reasons as recorded by the Committee for

802

SUPREME COURT REPORTS

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· it considers any change necessary, approve

the proposed supersession by any member of the State Civil/Police A Service and the obs,ervat~on of the Sta~e Governn_ient on the re~om­ mendation of the Conuruttee. Regulation 7 provides that the Com mission shall consider the list prepared by the Comptittee along with the other docnmt;llts J\eceiv:ed from the State Governmen.t and unless t!'e the hst

Commission considers it n~cessary to make any changes m received from the State Government, the Commissoin shall inform the" · B into State Government of the .changes proposed and after account the comments, if any, of the State Government, may approve the list finally with such modification, if any, as may in its opinion, be just and proper.

taking

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'•:·' The list as finally approved by the Commission shall form select list of the members of the State Civil/Police Service.

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The Regulation also states that the list shall ordinarily be in force until its review and revision effected under Regulation 5 ( 4) is approved under Regulation 7(1) or, as the case may be, finally approved under Regulation 7(2). The proviso to Regulation 7(4) states that in the event of a grave lapse in the conduct or performance of duties on the part of any member of the State Civil JPolice Service included In the> Select List, a special review of the selec,t list may be made at any time at the instance of the State Government and the Union Public Service Commission may, if it so thinks fit, remove the name ·of such . members of the State Civil/Police Sezyice from the Select . List.

Now, Regulation 5 ( 4) makes it clear that, as far as possible, there should be a revision or review of the select list every year. The purpose of an annual revision or review is to make an assessment of the merit and suitability of al! the then eligible candidates and make a fresh list of the required number of the most suitable candidates from In other words, the purpose of the annual review or among them. revision of the select list is to prepare a list and to include therein the required number of the most suitable persons from among all the then eligible candidates.

Proviso to Regulation 4(4) makes it abundantly clear that

there must be a fresh select list every year by making a review or revision of the previously. existing select list. By Regulation 4(2), a person who has attained the age of 52 years shall not be considered as an eligible candidate notwithstanding the fact that he is a substantive member of the. service. Then the proviso to Regulation 4(2) says that if his name has been entered in the select list for the previous year, he might be considered for inclusion in the fresh select list for the next yeai', even if he has passed the age of 52 years. When Regulation 5 ( 4) says that the list prCJ!ared in accordance with Regulation 5 ( 1) shall be reviewed or revised every year, it really means that there must be an assessment of the merit and suitability of all the eligible members every year. The paramount duty cast upon the Committee to draw up a liet Wllk.r lteplatioo 5(1) of such members of the State CiviljPolice Service u "tilfy the condition under Regulation 4 and as are held by the Committee to be iuitable for promotii>n to he service would be

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UNION v. M. L· CAPOOR (Mathew, J.) .

803 ·(i

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discharged only if the Committee makes the seleciion from all eligible candidates every year.

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I see no reason to give the go-bye to the word 'all'· in Regulation as the High Court has done. I preceive no reason, ·when Regu lation 4( 1) uses the word 'all' why I should not give effect to it; I am unable to see the anomaly which would result if the word is retained. If merit and suitability should determine the choice and that seniority should become relevant only when merit and suitability are . roughly equal, it is only proper that the field of choice should include all the eligible members of the State _Civil/Police service. It is rather curious that the High Court should have thought the use of the word 'all' in Regulation 4 ( 1) to be "loose or inaccurate" because inapt e,xpres• sions like ."the fresh select list", "the list so prepared" have peen used in the proviso to Regulation.4(2) and in Regulation 5(4) respective ly. Assuming for the momellt that these expressions are inapt in the context, I do not think that a sufficient reason for disregarding the the other ·hand, I effect of the·word 'all' in Regulation 4(1). On think it would have been anomalous if the field of choice had not em· braced the whole category of the eligible members of the State Civil/ Police Service, as the basis of the selection. for inclusion in the list is primarily merit and suitability. Nor does the fact that the number of members to ba selected for inclusion in th.e list is limited by the number of vacancies expected to arise in the succeeding year a suffi cient ground, as the High Court has thought for limiting the field of choice.

If the criteria for selection are merit and suitability ·

Though the words used in Regolation 5 ( 4) are

'review' and 'revision\ in the process of review or revision, a fresh assessment .must be made of the merit and suitability of all the members remaining in the previous list and all other eligible members in the State Civil/ Police Service. from among all the eligible members, then the field of selection must comprise of the entire category of eligibfo members of the service. Otherwise, the selection will not be on the basis of merit and suitability from among all the eligible members of the State service. In other words the inclusion of the name of a member in the select list for a year ~ill not be an entitlement for inclusion in the select list for the suceeding year. A fortiori a member who has been assigned a rank in the select list for a year can have no claim for the same rank in the next year.

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Mr. Chagla, appearing for one of the respondents, contended that there is a distinction between promotion'. and selection. He said that un der rule 9 of the Recruitment Rules, 25 per cent of the posts in the Indian Administrative Service/Indian Police Service are reserved for the members of the State Civil and Police Services to be filled by promotion and that this will have no meaning; unless the promotions are made on the basis of seniority subject to fitness. According to co unsel, though merit and suitability would be the criteria for selection frcm the open market for the remaining 75 per cent, for prom..ition to the 25 per cent quota from the members of the State service, seniority subject to fitness should be the sole criterion. I am unable to under s:2nd the logic of the distinction when considering the meanin:i; to be

804

SUPREME COURT REPORTS

[ 1974 J 1 s.c.a.

put upon Regulat:on 5(2): It is true that 2S per cent of the . P?St& life reserved for being. filled by promotion and the rest by. selection, but what follows? Is it nC<:¢Ssary that promotion should be «?n the basis ·of seniority subject tO fitiiess and not· on the basis of ment ~I!d slliiability wltli dlie regard to seniority. '!'he very id~a of a Sflec~?• froih an the effgible cimdidates on the basis of ment and smtabibty with d.ue regard to semorify under Regulation 5(~) is to find out the members who are suitabfe to be· promoted for filling the 25 per cent the quota reserved to the two State services. The mere word 'promotion' is used in rulti 9 of the Recruitment Rules would not indicate that selection from among the eligible members of the State services for promotion should be on the basis of seniority subject to fitness.

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Regulation 5(5) provides that if in the process of selection, re~i:w or revision it is proposed to supersede any member of the State Cm!/ Police Service, the Committee shall record its reasons for the proposed supersession.

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in Regulation 5(3) says that the name~ of the officers included the list shall be arranged in the order of Seniority in State service. The provision might not have been necessary if the selection :was on the basis of seniority subject tO the condition of fulfilling the criteria of merit and suitability, 1 In other words, when once the selection is made on the basis of merit and suitability with due regard to seniority, the fact that Regulation 5 (3) enjojps that the names must thereafter be arranged according to their seniority in State service is a definite pointer that the selection must .primarily be on the basis of merit and suitability. And even when arranging the names of officers according to the order of seniority in State service, exceptional me1it is given preferential treatment, as the proviso says that a junior officer who is «?f ex_ceptional merit and suitability must be assigned Ii place the !ht hlgher than that of officers senior to Wm. This is an unmistakable to iudicatioa to show that the whole scheme of give preferential treatment to merit and suitability.

the Regulation

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Iu S'!nt Ra"! ~harma v. St"te of Rajasthan and Another.(') this COurt said that 1t 1s a well established rule that promotion to selection gra_de~ or selection posts is to be based primarily on merit and not on semonty and that the principle is that· when the claim of officers to seiection posts is under consideration. seniority sjiould not be reaarded except ":be~e tb_e merit of the '?fficers is judged to be equal and no . oth:r cntenon 1s therefore avat!able. These observations were relied for u~erstandmg the scope of the rule under ¢onsideration in . that case which ran as follows:

, on m N. P: Mathur and Others v. State of .Bi,har and Others(2)

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";\ppointment to the Selection Grade and

to posts carrying pay above the time scale o! pay in the Adminis trative Service shall be made by seld:tion on merit with due regard to seniority."

(Rule 3(2-A) of (Pay) Rules. 1954)

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Indian Administrative Service

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(I) [1968[ I S. \;. R. 111, at 118.

(2) A. I. R. 1972 Patna 93.

UNION V. M. L• CAi'OOR (Mathew,/.)

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rhe Court said:

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"It is agreed on all hands that the post of Chi~f Secre- tary is a selection post from the officers in the super-time scale of pay and it rule . 3 (2-A) is also agreed In th~e circumstance~, of the Pay Rules applies. it is clear that selection to the post of Chief Secretary will depend on merit, irrespective of seniority. In my opi!lit'n, the principle laid d~wn by their Lordships of_ the Supreme Court in Sant Ram Sharmas case (AIR 1961 SC 1910) makes this position clear".

that

In Mir Ghulam v .. Union of India( 1i) this question was incidentally considered that it would appear fyom the observations in the, judgment that 'the prep1ration of the list under Regulation 5 (1 ) must primarily be on the basis of merit and. suitability, seniority being only one of the relevant considerations in making the seler.tion.

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The next question is whether the State Government was compe tent to terminate the officiating appointments of the respondents, on the basis that, although their names were in the select lists from 1962 onwards, they were removed from the select list prepared in 1968,.

Rule 9 of the Indian Administrative Service/Police Service

(Cadre) Rules, 1954 provides:

"9 (1) A cadre post may be filled by a person who is not a cadre

officer if the State Government satisfied :

(a) That the vacancy is not likely to last for more than

three m"nths; or

(b) that there is no suitable cadre officer available for

filling the vacancy.

(2) Where in any State a person other than a cadre officer is appointed to a cadre post for a period exceeding three months, the State Government shall forthwith report the fact to the Central Government the reasons for making the appointment.

together with

(3) On ri;ceipi of ·a report under Sub-rule(2) or other wise, the Central Government ·may dire~t that the State Gove ernment shall terminate the appointment of such person and appoint thereto a cadre officer, and where' any direction is so issued, the State Government shall accordingly give effect thereto."

The High Court was of the view that the Central Government alone was competent to terminate the appointment of the respondents as the power in that behalf was vested in the Co;ntral Government only.

If the State Government can make an appointment umjer. rule 9(2) of the Cadre Rules, there is no ,reason why it cannot termiilllte it. The normal rule is that a power of apPOintment carries with it the ~owcr to terminate the appointment unless there is an express provi the Central s10n to the contrary. The enabling power

lodged

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(I) A. I. R. 1'973 SC 1138.

806

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[ 1974] l s.c.a;

Government to . direct the termiliation of !ne appointment when a report has been received does not mean that the State Government is denuded of ·that power. R;ule 9(3) only shoWs that when a report is ,made· under rule 9 ( 2), the Central Government has power to direct the State Government to teiminate the appointment. This would show that the power to terminate the appointment rests with the State .Gov· ernment; otherwise, there is no reason for sub-rule (3) of rule 9 of the Cadre Rules to say that the Q:ntral Government may direct the State Governmeni to terminate the appointment. The sul>-rul~ could very well have said that the C',entral Government may terminate the appointment. The fact th::it the State Government should terminate the appointment when the. C',entral Government makes the direction to do so, can be considered only as vesting a power. to make the direction which it would not otherwise have but for the sub-rule. It does not mean that the State Government wouid lose its power to ter minate the appointment if the Central Government does not make a In other words, the vesting of the power in the Central direction. Government to give a binding direction does not take away the power of the State Govermn~nt as appointing authority to the In the light of our conclusion, I do not think it neces appointment. sary to express any opinion on the question whether the remov:tl of the names of the respondents from the select list of 1968 was per se sufficient for the State Government their officiating "appointment" to the Cadre posts.

terminate

terminate

to

"'tion asked for.

It was contended on behalf Qf respondents that before they were superseded, notice should have been given to them and their explana- It was argued that rules of natural justice required that before the name of a member is removed from the select list, he should be given notice to show canse why his name should hot be removed and unless that is done, the decision to remove his name from the select list would be bad.

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B

I am not impressed by the argument that rules of natural justice require that when a senior is proposed to be superseded, he should be given notice and his explanation· called. Inclusion of a name in the select list, at best, can give the person only an inchoate right for appointment during the year whea, . .the select list would be current. When that period. is over, .he has no ri&ht to be included in the select list for the next year. He has only a right to be considered for iri· Iri other words, inclusion of· a person's name in clusion in it. the select list in a year does not give that person a vested right to have his name included in the select list for the succeeding year. As al!:eady stated, a fresh list will have to be prepared for the succeeding year after c'onsidering the merit and suitability of all the eligible candidates. Regulation 5 ( 5) of the Promotion Regulations makes it clear that there can be supersession when making the selection. or in reviewing or revising the select list. When making a selection for the first time, the expr.ession "supersession" ca.n mean only passing over the claim of a senior according to the State service for inclusion in the list, for, In that context, the word ex hypothesi, no previous select list exists. "supersession" can denote only the selection of a junior in preference

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UNION v. M. L. CAPOOR (Beg, /,)

807

inclusion the expression "supersession"

to a senior according to their rank in the State service. There is · nc:> reason to give a different meaning to the expression in the .context of , review or revision of the select list The expression "supersession~· does not mean removal of the ll3II!C of a person whose name appeared in the previous list from the subsequent list or his demotion iJ! rank in the subsequent list. As there is to be a fresh assessment of merit and suitability when a fresh list has to be drawn up, and that, as far as possible, has to be done every year, the word "supersession" can only in mean. overlooking the seniority in the State service for in the list. I should have thought the context is quite inapt, as it has overtones that senioirty per se has some claim for preferential treatment. When you talk of supersession, it normally means that. the person superseded has a preferential claim. But, ex hypothesi the selection is primarily on the basis of merit and sUitability. Therefore, though strictly speaking, there can be no ques tion of supersession when a senior is passed over, as the selection is based primarily on merit and suitability, the expression was used probably to indicate that seniority is a factor of great weight to be taken into consideration for inclusion in the select list. Whate.ver that be, I do not think that in making selection or in reviewing or revising the select ,Jist, as a fresh list has to be prepared on the basis of merit and suitability of all eligible candidates including those whose names remain in the previous list, with due regard to seniority, there is no. question of notice being given to a senior when he is proposed to be passed over. No vested ri.,ght is involveq; no interest recognized and protected by law is in jeopardy. I am not prepared to lay down as a general proposition that whenever a selection is made on the basis of merit and suitability with due regard to sertiority, notice to a senior will be required if he is proposed to be passed over in favour of a junior on the ground of his greater merit aad suitability. No precedent has been cited in support of the proposition. On a balance of all . the! relevant factors, I do not think it expedient to exte)ld· the horizon of natural justice involved in the audi alteram partem rule to the twilight zone of mere expectations, however great they. might be.

.

BEG, J.-The five appeals .before us-one by the Union of India ~d four by .the State and the Chief Secretary to the Govt. of Uttar Pradesh -are directed agai~t. a common judgment given by Division Bench of the Allahabad High Court, on two Writ Petitions, one by M. L. Capoor and .the other by K. N. Misra, and two special appeals, one by Ganesh Sm~ Seth an~ !he other by Basant Kumar Joshi. As all t~e cases, resting upon s1m1lar facts, raised common questions of Jaw t e:y were heard together and disposed of by a · common wb•ch has come up before us on grant of certificates of fitness of the

judgment '

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I 1974 l 1 s.c.11.

cases oy the Allahabad High. Court under Article 133(1) (c) of the Ooostitu~on of India for appeal to this 'Court.

A

the select c

M. L: Capoor ad K. N. Misra have been meiaben ol' ~ U.P. Stat.c P'olke Service who were brought on a select lilt .for promotion to<·tWe Indian Police Service in 1961 and 1962 since when they officiatrd on cadre posts of the Indian Poli~e SerVice as Superintendents of Police for a number of, years. 'Ibey were eligible to be considered fer promotion under Regulation 4 of Indian Police Service (Appoint- ment by Promotion) Regulations, 195.5, and cam!' on the select list ~ the procedure for selection by a Select Committee confirmeil by the J]nion Public Service Commission, and, finally approved by the State GOvt. The whole procedure is set out in Regulations 4 to 7 of the Indian Police Service (Appointment by Promotion) Regulations, 1955, under which the select lists are to be revised and reviewed every year. Both M. L. Capoor and K. N. Misra continued on list until tl!.e• list for 1968 was prepared in December, 1967, when they were suddenly dropped from thi& list. Consequently, they filed petitions under Art. 226 of the Constitution in the Allahabad High Coyrt for quashing orders of alleged reversion. These Writ Petitions \Vere refer- r~ to a Division Bench which decided thC!!J with che special appeals of Gamdl Singh Seth and Basant Kumar Joshi involviag the same questions of law on similar-facrs.

·

Ganesh Singh Seth and BasaJilt Kumar Joshi have been members of the U.P. Civil (Executive Servlc¢ }~ They were brought on the select list of the Indian Admini$riUjye Service in 1961 and 1962, under Regulations 4 to 7 of the Indian Administrative Service (Ap pointment by Promotion) Regulations, 1955. These two officers, who had officiated as District Magistrates for a number of years, had also been dropped from the select list for 1968 prepared in December 1967, after ha,ving continued in that list since 1961 and 1962. They had filed Writ Petitions against their alleged reversions which ·were dis missed by a learned Judge of the Allahabad High Court on 23-5-1968. Their special appeais were heard by a Division Bench with Writ Petitions o~ M. L Capoor and K. N. Misra, because, as already observed, common questions of law were involved. These appe!lls were allowed by the common judgment now under appeal beforeus.

8

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it is enough to set out the relevant regulations of the G

The Di\ision Bench had quashed the-5elett lists of the

Indian Administrative Service and the Indian Police Service for ihe year 1968 and the orders reverting the four officers concerned to their substan tive posts in the State Services. For considering the questions of law raised before us Indian Administrative Service. The only material differences between the two otherwise identical sets of regulations are that different appel lations-e.g. 'civil service" and "police service" are used in respective regulations for r~cruitment by promotion to the All India Service concerned and there are certain special provisions in Explanations to Regulation 4 in each of the two sets, which we are not concerned, and they are only applicable to officers of the respective services dealt R with there. Our interpretation of one set of the relevant parts of regu lations will, therefore, be equally applicable to the corresponding pro visions of the either set.

UNION V. M. L. CAPOOR (Beg, /.)

809

A

:R,egulations 4 to 9, to the extent they are relevant for the argu-

. ments advanced before us, read as follows .

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"4. Conditions . of Eligibility for promotion.-(1) Each Committee shall meet at intervals ordinarily not exceeding one year and consider the cases of all substantive members of the State Civil Service who on the first day of January of that year, had completed not less than eight years of continuous service (whether officiating or substantive) .in a post of Deputy Collector or any other post or posts declared equivalent thereto by the Government.

.

xxx

E<planation.

xxx (2) Notwithstanding any thing contained in sub-regu ·1ation (I), the Committee shall not ordinarily consider the cases of the members of the State Civil Service who have attained the age of 52 years oil the first day of January pf the year in w]lich meeting of the Committee is held :

xxx

Provided that a member of the State Civil Service .whose name appears in the Select List in force immediately before the date of the meeting of the Committee shall be considered for inclusion in the fresh Select List to be prepared by the Committee even if he has in the meanwhile attained the age of 52 years.

(5) Preparation of a list of suitable officers.-(ll. The Committee shaU prepare a list of such members of the State Civil Service as satisfy the condition specified in regu lation 4 and as are held by the Committee to be suitable for promotion to the service. The numbar of members of the State Civil Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of the preparation of the list in the posts available for them under rule 9 of the Recruitment Rules or 10 per cent. of the senior duty posts )orne on the cadre of tbe State or group of States whichever is greater :

Provided that, in the year ending o~, the 31st December, 1969, the maximum limit, imposed by this sub-regulation, may be exce0,ded to such extent as may be determined by in consultation with the State the Central Government Government concerned.

( 2 )' The sele'ction for inclusion in such list shalt be bdsed on merit and suitability in all respects with due regard to seniority.

( 3) The names of the officers included in the list shall be arranged in order of seniority in the State Civil Service : Provided that any junior officer who in the optmon of the Committee is of exceptional merit and suitability Illay be assigned a place in the. list higher than that of officers senior to him.

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SUPREME COURT REPORTS

I 1974J1 S.C.ll.

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

· every year.

·

( 5} If in the process of selection, revie"· or revision it is propos~ to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposed supersession.

6. Consultation with

list prepared in accordance with regulation 5 shall then be for w~rded to the Commission by the State Government along with-'-

the Commissk>n.-The

·

(i) The

records of all members of the State Civil

Serviee in.eluded in the list;

(iD the record of all members of the State Civil Service who are proposed to be Sllperseded by the recommendations made in the lii!t;

(iii) the reasons as recorded by the .Committee for the proposed supersession of any member of the State Civil Service; and

(iv) the observations of the State Government on the

recommendations of the Committee.

7· Select List.-(1) The Commission shall c0nsider the list prepared by the Committee along with the other docu ments received from the State Government and, unless it considers any change necessary, approve the list.

(2) If the Commission considers it necessary to make changes in the list received from the State Government, the Commission shall inform the State Government of the changes proposed and after taking into acconnt the com ments, if any, of the State Government, may approve the list finally with such modification, if any, as may, its opinion, be just and proper.

in

(3) The list as finally approved by

the Commission shall form. the Select List of the members of the State Civil ·service.

( 4) The Select List shall ordinarily be in force until its review and revision, effected under sub-regulation ( 4) of regulation 5, is approved under sul>-regulation(l), or, as the case may be, finally approved under sub-regulation (2). : Provided that in the event of a grave lapse in the con duct or performance of duties on \he part of any member of the State Civil Service included ,in the Select List, a special the. review of the Select List may be made at any time at instance of the State Government and the Commission may, if it so thinks fit, "remove the name of such members of the State Civil Service from the Select List :

8. Appointment to _cadre Posts from the Select List. .... Appointments of members of the State Civil Service from the

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UNION V. M. L. CAPOOR (Beg, /.)

Bil

Select List to posts borne on the State Cadre or the joint Cadre of a group of States, as the case may be, shall be made in accordance with the provisions of rule 9 of the Cadre Rules. In making such appointments the State Gov ernment shal! follow the order in which the names of snch cfficers appear in the Select List :

Provided

that where administrative exigencies so re quire, a member of the State Civil Service whose name is not included in the Select List or who is not next in order in that Select List may, subject to the aforesaid provisions of the Cadre Rules, be appointed to a cadre post if the State Government is satisfied ......... .

(i) that the vacancy is not likely to last for more than

three months;

(ii) that there is no suitable cadre officer available for

filling the vacancy.

9. Appointments to the Service from the Select List ( 1) Appointment of members of the State Civil Service to the Service shall be made by the Central Government on the recommendation of the State Government in the order in the State Civil Service which the names of .members of appear in the Seleci List for the time being in force.

(2) It shall not ordiqarily be necessary to consult the Commission before such appointments are made, unless dur the ing the period intervening between the name of ·a member of the State Civil Service in the Select list and the date of the proposed appoirttment there occurs · any deterioration in the work of the member of the State Civil Service which, in the opinion of the State Government, is such as to render him unsuitable for appointment to the service".

inclusion of

Before interpreting these Regulations two more common features· of the cases before us may be mentioned. Firstly, in each of the four· cases, a nur11ber of officers (ten in the case of K. N. Misra, nineteen In the case. of M. L. Capoor, and fourteen in the cases of Ganesh Singh Seth and Basant Kuniar Joshi), who wers junior to the aggrieved· ~officers, were added in 'the select list of 1968, although their names did not figure at all in the Select List of 1967. ·Some of the officers, who· were lower down in the select list of 1967, were actually appointed in 1968. Secondly, the reason sent to the Public Service Comission by the Selection Committee for 1968 for the displacement of each of the Respondents from the lists of 1968 was uniform. The Division Bench· has set out the stock reason given by the Select Committee as follows::

"On an over all assessment, the records of these officers are not 911ch as to justify their appointment to the Indian Administrative Servicejlndian Police Service at this stage iii preference to those Selected·"

812

SUPREME COURT REPORTS

[ 1974] 1 S.C.R.

Each purported statement of reasons mentioned the appropriate A (i.e. either administrative or police service) as the case may

service be.

supersession,

The question we may first consider, from amongst

those argued before us, is whether the function of the Selection Committee in pre· paring the list, which COl~ld involve proposals for is purely administrative or is guasi·judicial- It was pointed out, on behalf of the Union of India and the State of U.P., that each Committee had to consider "the cases ,pf all substantive members of the State service concerned", under Regulation 4, to determine whether they were eligible, and, thereafter, whether they should be brought on the select list for the particular year. Regulation 3 provided that the Committee, which had to prepare the Sele\:! list, will be composed of persons men tioned in a schedule. These were Members of the Service (i.e. service to which the promotion was to be made), except the Chairman who was to be either the Chairman or a Member of the Union Public Service Commission. It was urged that the entire process consisted of selection on the basis of service rectords assessed by experts. It is difficult to conceive of any "list" between each candidate and all the others. Indeed the process of selection could hardly be spoken of as akin to the pro ces·s of litigation, where two or more parties, who prefer claims to the' same subjecwnatter, have to be informed of each other's cases and issues on points in dispute are framed and then decided· Even if such a process of selection by assessment of merits could conceivably be viewed as a whole series of disputes as to comparative claims it is quite impracticable to hear each candidate as against. all the others after gi\fing each the results of assessments of ments of all the others with access to the materials on which these are based. Candidates are not expected to sit in judgment over evaluations of li1~ir own merits and of others. The "Cult <Jf the Quasi'', as it has been derisive-· ly called by those who are skeptical of its extensions beyond certain reasonable and practical limits. cannot be carried to such absurd lengths as to make it necessary for candidates at an examination to put forward their own assessments of their own merits as aainst those of rival candidates. Just as the answers given. by candidates at a written test reveal respective. merits so also the service records. during the preparation of lists by selection, speak for those whose r<:cords are examin~d .. The proce_ss of selection by eval~ation of respective records of service 1s more akin to that of an exammation of candidates than to any quasi-judicial proceeding.

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Prof. S. A. de Smith in his "Judicial Review of Administrative Actio?". (2~d :Edn-p. 64_ to 76) has given a number of useful tes!s fO£ d1strngu1shin,g between administrative and judical actions. These may be s~1s7d as ~ollows; firtsly, ~hether the performance of .the function terinmates m an order which has a oonclusive effect or the ~~rce of_ law or is mere~y advisory, deliberative, investigatory, or conc~tory m character which has to be ooafirmed by another authority _before acquiring a. binding force; secondly, whether there are prescribe procedural attributes of the proceeding its

such as

. 8

UNIO~ v. M. L. CAPOOR (Beg, J,)

813

·\A

.8

invitation by a party opposed to another, so that there is a /is or di>· pule, a ·public hearing, a power to compel att~ndance of .witnesses. prescribed rules of evi<lem:e and ,mode.s of relief; thirdly, ~nether 0e decision imposes ob'..igations by definmg, confernng, varymg, extm . guishing, or recognisin~ ri¥hts and !!abilities; .an~ fourthly ':'hether the function involves applicat10n of obiect1ve cntena_ defined oy l~w,. to imp:utially ascertained facts or is merely the exercise of a subiectJve power to act without reference to justiciable standards. Cases where valuable rights of individuals are affected by decisions of administra tive authorities, even in the course of carrying out a sche1110 embody .ing a policy, may have to be decided quasi-judicially, or, in other words. as though the basic norms of judical action are applicable by implication.

The learned Single Judge who dismissed the two Writ

.Petitions which came up in special appeal before the Division Bench had held that, as ther~ was no "/is" between eligible candidates, in the legally accepted sense of the term, there could be no question of a quasi judicial .fonction either when a select list was prepared or when it was some eligible reviewed or revised in such a way as to supersede . c~ndidate. The learned Judge held that the words "review" and "revision" were used in Regulation 5 ( 4) and ( 5) in a non-kchnical broad sense. of annml fresh preparations of the lists .. · According to the learned Judge, the second test mentioned above, that of a "/is", was lacking here. The Division Bench h1d also held that the func tion of the Selection Committee was not quasi-judicial because it was simply recommendatory or advisory. This meant that the process failed to satisfy the first test mentioned above of judicial or quasi judicial action. Both these grounds for distinguis'iing the process undergone from quasi-judicial action are sound.

list remain

It was urged that the Division Bench hod over-looked the effect of Regulation 7, sub·Regs.(3) anct (4) which made the final when approved by the Commission and that it was ·to in force until it was reviewed and then revised by another finally approv ed list. .Henc_e, it was contended, on behalf of the Respondents, that the function acquired attributes. of a quasi-judicial action at least when the matter w1s sent to the Public Service Commission in the form of a proposal made by the Selection Committee· involving a supersession. The argument was that, at least in a case of supersession, the person whose name was already on the list had a right to be informed of the reasons recorded UJ;tder Re~lation 5. sub-reg. (5) in support of a prop?sect supersess10n .. Reliance was placed, for advancing this pro position, on cases dealmg with general principles on which a duty to act quasi-judicially i.s inferred. They were: State of Punjab Vs. K. R. Erry. & Sobhag Rm Methta('); Madan Gopal. Agarwal vs. District Magistrate Allahabad & Ors.,(') P. L. Lakhanpal vs. The Union of

(1) AIR 1973 SC 834.

(2) AIR 1972 SC 2656.

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SUPREME COURT REPORTS

[ 1974 J 1 s.c.R.

reviewed; Unikant Sankunni MenClll Vs .

India & Anr.,(1) where it was observed that there may be a duty to act quasi-judicially even without a lis and previous case law on the . the State of subject was Raiasthan(•); State of Orissa Vs. Dr. (Miss) Binapani Dei & Ors.( 3 ); Shri Bhagwan & Anr. Vs. Ram Chand & Anr.('); Board of High School & Intermediate Education, U.P. Allahabad Vs. Ghanshyam Das Gupta & Ors.('); Shivaji Nathubhai Vs. the Union of India & Ors.( 6 ); A. K: Kraipak & Ors. etc. Vs. Union of India & Ors.( 1 ); Karunakaran (K. K.) Vs. Director, Bureau of Economics & Statistics & Ors.(8 ); Malloch Vs. Aberdeen Corporation,(')

In some of the cases mentioned above, decided on general princi ples the exercise of powers of "Review" and "Revision" has been con side~ed and held to be quasi-judicial. It will be noticed that, ou.t of these cases, only Kraipak's case (supra) had deal! :with .the func!Ions of a Selection Board which, though held to be adm1mstrabve. bad to be exercised fairly and impartially, and, therefore, the membership of the Board had to be free from persons who could be presumed to be biased. It may be recalled here that examiners, appointed to assess the answers at a written test, are generally called upon to make declarations show- ing that no relation of theirs is an examinee obviously because suspi In other cion of bias on the part of an examiner has to be eliminated. words, all such evaluations have to be so made as to be'above suspi• .::ion of unfairne.ss or bias although they do not require a quasi-judicial proceediµg to ensure such a result.

On behalf of the Union of India and the State of U.P., it was urged that a person whose name is brought on the select list for a particular year does not acquire any right except to remain on lite list until it is reviewed and revised. It was submitted that this was not an absolute or unconditional or indefeasible right to remain on the list and that n~ quasi-j~dicial proceeding could be demanded to defend a right.which did not eXIst <?r ':'as so fi~d or transitory in character. It was urged ~a~, a~ the cntena. for bemg pla~ed on. the selection list were entirely oub1ective, no candidate could claim a nght to have his merits assessed every year by applying the same uniform, invariable. objective· tests.

"Ipe Solicitor Ge~eral relied on cases where it had been held that appomtment to selection posts was not a matter of right. These were : Sarti Ram Sharma Vs. S!ale of Rajasthan & Anr.(I•); (iuman . Singh & Ors. Vs. State of Ra1asthan & Ors. (1'~); Mir Ghulam Bussan & Ors. Vs. 'the Union f?f India & Ors.(li2). The Divisional Personnel Officer, Southern Railway, Mysore Vs. S. Raghavendrachar;(I•) N p · Mathur & Ors. Vs. State of Bihar & Ors.("')

·

·

(I) [1967](3) SCR 114 at 120. (3) [1967] (2) SCR 625. (5) [1965] Suppl (3) SCR 36. (7) [1970] (1) SCR 457. (9) [1971] (1) Weekly Law Reports

1578.

.

(11) [19711 (2) sec 452. (13) [1966] (3) SCR 109.

(2) [19671 (3) SCR 430. (4) [1965](3)SCR2!8 (6) (19601 (2) SCR 775. (8) [1966](2) LU 221. (10) [1968](1)SCR Ill, 114 & 118.

(12) AIR 1973 SC 1ds. : (14) AIR 1972 Patna (FB) 93.

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UNION v. M. L. CAPOOR (Beg, J.)

815

to distinguish

Learned Counsel for the Respondents tried

the rulings cited on behalf of the Union of India and the State of U.P. on the ground that they did not apply to ca~es of "~romotion" .to posts which have to take place in accordance with certam. rules which gave seniority "due" importance. It was contended that .m matters of p~o­ motion according to rules, which laid down the cnten~ for select10n so as to be promoted to higher cadre posts, every cand1~ate had a right to insist that proper tests were. employed. Accordmg. to the Respondents, these criteria were obiecllve and the .most 1mport~nt objective fact, in assessing merits, could only be semonty for v1h!ch "due regard" was imperative. The others were also capable . of bemg formulated and applied to material on service records. This aspect of the cases before us brings us to the question whether Regulation 5 ( 4) had been properly understood and applied by the Se~ection Committee and the Union Public Service Commission. A decision of this, question would determine the validity of the impugned lists irrespective of the nature of the .processes of preparation, review, ~nd revision of the final list that is to say, whether they be purely adminis trative in every situation which may arise or involve any elements of the quasi-judicial atleast where a proposal for supersession is sent to the Union Public Service Commission. Even an authority acting in a purely administrative capacity could be controlled so that it may not legal exceed its powers by misapprenhending their meaning, scope, and their purpose. They could not be used to defeat the pur pose of the powers conferred. We may, therefore, now examine this .crucial qnestion.

their

It is true that learned Single Judge in dealing with two Writ Peti tions before him had rather brusquely brushed aside the contention that Regulation· 5 implied some limitations on the powers of selection. The Division Bench, while holding that these powers were to be exer cised in an administrative and not quasi-judicial capacity erected the imperative need for "due regard to seniority", laid down in Regulation 5 clause (2), into a sheet anchor of an over-riding claim of seniority which, in its opinion, was to prevail subject only to the claims of "exceptional merit and suitability" menti.oned in the proviso to clause It is submitted by the appellants that, in doing (3) of Regulation 5. so, it unduly enlarged the claims of seniority and made it a barrier in the path of promotion of meritorious individuals in service. Seniority can certainly not be over-looked, as the basis of a claim, in view of Regulation 5, clauses (2) & (3). But, to hold that seniority is practi cally the governing or decisive factor in all cases of promotion under these regulations, subject only to the claims of exceptional merit and suitability, would, it was urged on behalf of appellants, minimise the importance of merit.

. Merit is certainly an elusive factor capable of being judged very ?1fferenHy from different angles, or, by applications of varying tests of 1t by d1ferent persons, or, by the same persons, at different times. lt "'.as submitted on behalf ?f the respondents that to make supposed ment the sole test for selection would be to leave the door wide open for nepotism to creep into selections for higher rungs of public service

L392S,pCJ!74

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816

SUPREME COURT REPORTS

I 1974 J 1 s.c.R..

by promotion and that this would undermine the morale. of members of the State services and weaken incentives for honest work and achivement of better standards of proficiency by them.

The following passage, from Leonard D. White's "Introduction to Public Administration" (4th edn. pages 380, 383), cited with approval by this Court in Sant Ram Sharma's case (Supra), was quoted by the Division Bench (at page 122):

"The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole organisation. The mai1;1. interest to be served is the public interest, not the per sonal interest of members of the official group concerned. The public interest is best secured when reasonable opportu nities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacan cies occur, and when selection for promotion is made on the sole basis of merit, for the merit system ought to apply as specifically in making promotions as in original recuitment..

:i;<:mployees often prefer the rule of seniority, by which tho eligible longest in service is automatically awarded the pro motion. Within limits, seniority is entitled to consideration It tends to eliminate favouri as one criterion of selection. tism or the suspicion thereof; and experience is certainly a factor in the makijig 0£ a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When sen" iority is made the sole determining factor, at any level, it It does not follow that the employee is a dangerous guide. longest in service in a particular grade is best suited for pro motion to a higher grade; the very opposite may be true". We fail to see why administrative machinery which secures for the most meritorious chances of superseding their seniors, in promotions to higher posts, should have an adverse and not beneficial effects upon the moral of members of State services or upon incentives for better work and efficiency. No doubt, care has to be taken that it is so ope rated as to really secure the choice of the most meritorious by honest and rigorous applications of correct and proper tests.

It is true that, where merit, which is difficult to judge, is laid down as the sole test for promtion, the powers of selection become wider, and, they can be a!Jused with less difficulty. But, the machinery pro vided for preparation of select lists for promotion to All India Services, to so ;is to ensure impartiality, cannot be assumed to so operate as · produce uniust resqlts. The wider the powers entrusted to an adminis trative authority, the more should be the consciousness of responsibility 9n its part for their due discharge fairly and impartially, The presump tion is that the authority concerned will discharge its obligations with full realization of its implications and honestly. We have, however,

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UNION V. M. L. CAPOOR (Beg, /.)

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to determine here whether the Selection Committee and the Union Public Service Commission performed their tunctions on a correct interpretation of the relevant regulations and not whether they acted honestly about which we entertain no doubt whatsoever.

The Division Bench had held "merit and suitability" to be a sort of an admission test for a place on the select list just as the conditions for eligibility laid down in Regulation 4 operated as test operating at the it out-set for inclusion in the list of eligible persons. Furthermore, held that, even in judging "merit", seniority was the most important consideration in cases of promotion and that this followed from the requirement of Regulation 5(2) that it be given due regard. It held that, after satisfying a mininrum standard of individual merit and suita bility for inclusion in the list, comparable to pass marks at an examina tion, in which seniority played the dominant role, seniority also deter mined the order on the list according to which the officers selected were to be promoted to the All India Services. It referred to Regulation 5(3), which requires the arrangement of selected officers "in order of seniority in the State Civil Service" to justify its interpretation. Thus, it came. to the conclusion that seniority was really the dominant or governing factor in determining who should be placed on the select list as well as the order in which they were to be appointed. Although Regula tion 5(2), considered by itself, does not lead to this conclusion, Re gulation 5 ( 3) would, perhaps to some extent, support tne reasoning of the Division Bench. If a omparative to be applied throughout to all candidates, by compJring each with all the others, at every stage, it should, logically, determine not only selections but also positions of officers on the list, just as the position of each· examinee on, a written test is determined by the total number of marks secured by him as compared with marks secured by other candidates. If that was to be the logically applied test throughout, Regulation 5 ( 3) laying down that names on the list must be arranged in the order of seniority in their State Service, could not have been there. This Regu lation suggests that merit ordinarily operates only at the stage of applying an "inclusion" test. But, Regulation 5 (3) does not support the further conclusion reached by the Division Bench that a mininmum standard of merit is sufficient as a test for inclusion on the list and the rest is regulated by seniority. There is no doubt that, after applying the properly applicable inclusion test for a place on the list, the exact place in the select list is determined by seniority, as laid down by Regulation 5 ( 3), subject to claims of exceptional merit.

test of merit

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Thus, we think that the correct view, in conformity \\ith the plain meaning of words used in the relevant rules,· is that the "entrance" or "inclusion" test, for a place on the select list, is competitive and comparative applied to all eligible candidates and not minimal like pass marks at an examination. The Selection Committee has an unres tricted choice of the best available talent, from amongst eligible candi- · dates. determined bv r~ference to reasonable criteria applied in assess ing the facts revealed bv service records of all eligible candidates so thot merit and not mere seniority is the governing factor. A simple

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reading of the Regulation 5 (2) clearly indicates this to be the correct view. The required nnmber has thus to be selected by a comparison of merits of all the eligible candidates of each year. But, in making this selection, seniority must play its due role. Seniority would, however, only be one of the several factors affecting assessment of merit as comparative experience in service shonld be. There could be a certain number ot m.arks allotted, for purposes of facilitating evaluation, to required each year of experience gained in the service. When number for the list is thus chosen, the respective roles of seniority and exceptional merit would be governed by Regulation 5 (3). This seems to be the correct interpretation of rules as they stand.

the

The Division Bench also held that, after arranging names in the order of seniority in the State service, as required by Regulation 5 ( 3), the place of an officer on the list could not be disturbed suddenly by placing him ·below new entrants or new candidates of a succeeding year or throwing him out of the list altogether unless the process of re view and revision of the list for a subsequent year revealed that he deserved such treatment either due to deterioration of his work or the sudden influx of a number of officers of exceptional merit who may have become eligible for the year in which he is expelled from the list. In other words, a sudden tall in the assessmer.t of an officer's merit, without any reasonable and probable, and, therefore, acceptable ex planation for such an assessment, so that new candidates, who were not even selected in previous years, supersede him in a new list and become his seniors, is not contemplated by the rules. The view of the Division Bench seemed to be that a candidate so treated would be virtually punished. If this was correct, he would deserve to be given an opportunity to defend himself against whatever was operating against him. But, ·as already observed, the Division Bench held that the pro cess itself was really administrative. On the view taken by the Divi sion Bench fresh selection would be confined annually to the needs of new vacancies created. Otherwise, the list prepared in a particular· year would hold good until reviewed or revised.

A glance at Regulation 5 clause (5) would show that even the process of selection may involve "supersession". The rule· indicates that "supersession" here only means the ·preference given to juniors over the "superseded" officer for a place on the select list. The super seded officer may be given a position lower on the select list than his juniors in the State service or. he may be excluded altogether from the list by his juniors. According to learned Counsel for the respondents, such supersession would always imply punishment. If the reasoning of the Division Bench is followed to its logical conclusion, such super session would appear to be penal, and, therefore, involve compliance with minimal requirements of natural justice, atleast so far as com munication of reasons for a proposed supersession to the officer pro posed to be superseded is concerned, before the approval of the Union Public Service Commission. which, according to Regulation 7 (3), makes the list final. 1.-0cica!ly, if the view taken by the Divis;on Bench is cocrect, that the aggrieved officers were, apparently, ,punished in the sense that they were dealt with in an arbitrary fashion, each should

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have been atleast supplied with the reasons for the assessment involv ing his supersession, after the Selection Committee had decided te> reoommend the supersession, so that he could make written repre· seatations to the Union Public Service Commission before the select list was approved. Such a. rule of fairness need not make the process of approval unduly cumbersome and dilatory. On the other hand, it could. prove helpful. I am doubtful whether such an extension of rules of riatural justice to a case of "selection" is warranted by authorities $ they stand.

A place on the approved select list certainly confers a right to be appointed, according to Rules 8 and 9, to cadre posts. Although, the process of assessment by the Selection Committee, ·and, thereafter, approval by the Union Publ!c Service Commission does not involve observance of the "audi alteram patrem" rule in all its rigour and with all its implications, yet, it seems unfair to deprive a person suddenly of either an expectation to be placed, and, even more, of a place on a finalised select list, which confers certain valuable rights on him, with out informing him of even the reasons for his proposed supersession before its approval. At any rate, Article 16 of our Constitution gives rights to Govt. servants to be treated fairly and squarely, reasonably and impartially in matters relating to service.

It was held in Kraipak's case (supra} that even bodies function ing administratively may have to observe certain minimal rules of reason, justice, and fair play. It has been repeatedly pointed out that the extent of heari.ng to be given must vary with the situation on the facts and circumstances of each case. Therefore, speaking entirely for myself on this question, I was inclined to hold that, although the process of approval by the Union Public Service Commission is not such as to be characterised as quasi-judicial and that supersessions in the course of preparations and finalisations of select lists could not be strictly and legally held to· be penal, so as to attract an application of Article 311 0£ the Constitution, a minimal requirement of just and fair treatment in such a situation would be to inform the officer to be superseded of reasons recorded for his proposed supersession so as to enable him to make such representations against the proposal, before its approval bv the Union Public Service Commission, as he may desire to make. But, as I have observed above, I am doubtful whether, on authorities as they stand today, such an expansion of the scope of natural justice is justified. After having had the benefit of the views expressed by my learned Brother Mathew, for which I have the greatest respect, I do not think that I could embark singly, in the cases before us. upon what may appear to be a new extension o( concepts of justice, fairplay, and reason, in the realm of administrative law, particularly as the cases before us can be ciecided on the next question on which our views coincide.

We next turn to the provisions o~ Regulation 5(5) imposing a mandatory duty upon the Selection Com;nittee to record "its reasons for the proposed supersession". We find considerable force in the submission made on behalf ,of the respondents that the "rubber-stamp" reason given mechanically for the supersession of each officer does not amount to "reasons for the proposed supersession". The most

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that could be said for the stock reason is that it is a general descrip tion of the process adopted in arriving at a conclusion. This apology for reasons to be recorded does not go beyond indicating a conclusion in each case that the record of the officer concerned is not such as to justify his appointment "at this stage in preference to those selected"

In the i;_~ntexi of the effect upon the rights of aggrieved persons, as members of a pul>lic service who are entitled to just and reasonable treatment, by reason of protections conferred upon them by Articles i 4 and 1 §. of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of ea.ch officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only re maining visible safeguard against possible injustice and arbitrariness If that had been done, facts on service records in making selections. of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judi cial. They should reveal a rational nexus between the facts consider ed and the conclusions reached. Only in this way can opinions or decisions recorded be shown to bel manifestly just and reasonable. We thiiik that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is al) that the supposed statement of reasons amounts to. We, therefore, think that the mandatory provisions of Regulation 5(5) were not complied with. We think that rightly placed by respondents on. two decisions of this Court relating to the effect of !Mln-compliance with such mandatory provisions. These were : Associated Electrical Industries (India) Pvt. Ltd. Calcutta vs .. Its Workmen;(!) and the Collector of Monghyr & Ors vs. Keshav Prasad G~nka & Ors. (2)

reliance was

Lastly, I may refer to another question mooted before us. It was whether the orders of the State Govt. reverting the officers concerned to their State service posts simply because their names had not been included in the select list of 1968 were illegal for contravening the provisions of Regulation 9 set out above. The Division Bench had not only held that no directions were given by the Central Government under Rule 9(3) of the Cadre Rules, but, that the -State Govt., which bad itself not considered the question of the fitness of the aggrieved officers, bad .acted on the wrong assumption that it was bound to pass reversion orders ~imply because the names of the officers concerned bad ceased to find a place on the select list.

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. The powers of the State Govt. to act under Regulations 8 and 9 are limited. It bas to report under Regulation 9(2), set out above, which oorresponos with Rule 9(2), of the Indian Administrative Ser vice (Cadre) Rl!les, 1954, to the Central Govt. with reasons for making

1) AIR 1967 SC 284.

(2) [1963] (I) SCR 98.

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an appointment to a cadre post of an All India Service in a State. The cadre post is defined as a post specified in a schedule the Indian Administrative Service (Fixation of Cadre Strength) Regula tions, 1955. It is true that it is the Central Govt. alorie which can direct the termination of service under Regulation 9, as the Central Govern ment is ordinarily the appointing authority. The State Govt. has powers, conferred by Rule 8, of making appointments only in certain 9ontingen cies. If it exceeds these powers of making appointment, the appointments may be vitiated. I am, however, not satisfied, on the materials placed before us, that the State Govt. either exceeded its powers or that an order of the Central Govt. to terminate a service was needed. However, as we agree with the conclusion of the Division Bench, for other reasons already· given, that the impugned select lists of 1968 and reversion orders passed by the State Government should be quashed, I prefer not to decide this question in these cases.

The result is that, for the reasons given above, these appeals are dismissed. But, in circumstances of the cases before us, the parties will bear their own costs in this Court.

P.B.R.

Appeals dismissed.