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PETITIONER: RAMANAND PRASAD SINGH & ANR.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       27/03/1996

BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) AHMADI A.M. (CJ)

CITATION:  1996 SCC  (4)  64        JT 1996 (4)    39  1996 SCALE  (3)231

ACT:

HEADNOTE:

JUDGMENT:                             WITH             CIVIL APPEAL NOS. 5126-5128 OF 1996             -----------------------------------   (Arising out of S.L.P. (Civil) Nos. 23418-23420 OF 1995) Union Public Service Commission & Anr. V. Surendra Prasad Sinha & Ors.                       J U D G M E N T Mrs. Sujata V. Manohar J.      Leave granted.      The appellant have challenged the judgment and order of the Central  Administrative  Tribunal,  Patna  Bench,  Patna dated 28th  of July,  1995 as a result of which the Tribunal has set aside the selections made by the Selection Committee on  30th   of  March,   1994  of   officers  of   the  Bihar Administrative  Service   for  promotion   to   the   Indian Administrative Service.      The Tribunal by its impugned order set aside the entire selection made  at the meeting of the Selection Committee on 30th of  March, 1994  on an  interpretation  of  the  Indian Administrative   Service    (Appointment    by    Promotion) Regulations, 1955,  holding that only three times the number of anticipated  vacancies for  the year  plus 20% could have been considered  as within  the zone of consideration before the Selection Committee. The consideration of other officers under Regulation  5(3) was contrary to the said Regulations. It also said that the proceedings of the Selection Committee were vitiated  on account  of the  participation of one Shri S.N. Dubey  as a  member of  the Selection Committee because his brother  was within  the zone  of consideration although the brother  has not  been selected. And lastly the Tribunal has said  that there  was non-application  of  mind  by  the Selection Committee  in considering  264 names  on a  single day.

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    The  Indian   Administrative  Service  (Appointment  by Promotion)  Regulations,  1955,  have  been  framed  by  the Central  Government   in   consultation   with   the   State Governments and the Union Public Service Commission under sub-rule  (1) of  Rule 8  of the Indian Administrative Service (Recruitment)  Rules, 1954.  The relevant Regulation which requires  consideration is  Regulation 5. The material provisions of Regulation 5 are as follows:      "Regulation 5:      Preparation of  a list  of suitable      Officers -      (1) Each Committee shall ordinarily      meet at intervals not exceeding one      year and  prepare a  list  of  such      members of  the State Civil Service      as are  held by them to be suitable      for promotion  to the  service. The      number  of  members  of  the  State      Civil Service to be included in the      list shall  be  calculated  as  the      number  of   substantive  vacancies      anticipated in  the course  of  the      period  of  12  months,  commencing      from the date of preparation of the      list in  the  posts  available  for      them   under    rule   9   of   the      Recruitment   Rules   plus   twenty      percent  of   such  number  or  two      whichever is greater.           Explanation - In case of joint      cadres a separate select list shall      be  prepared  in  respect  of  each      State Civil  Service, the  size  of      each select  list being  determined      in the manner indicated above.      (2) The  Committee  shall  consider      for inclusion in the said list, the      cases of members of the State Civil      Services in  the order of seniority      in that  service of  a number which      is equal  to three times the number      referred to in sub-regulation  (1).      ...................................           Provided   further   that   in      computing the  number for inclusion      in the  field of consideration, the      number of  officers referred  to in      sub-regulation   (3)    shall    be      excluded:      ...................................      (3)   The   Committee   shall   not      consider the  cases of  the members      of the State Civil Service who have      attained the age of 54 years on the      first day  of the  year in which it      meets.           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 list,  to be  prepared by the      Committee even  if he  has  in  the      meanwhile attained  the age  of  54

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    years.           Provided further that a member      of the  State Civil Service who has      attained  the  age  of  fifty  four      years on  the first day of April of      the year  in  which  the  Committee      meets shall  be considered  by  the      Committee, if  he was  eligible for      consideration on  the first  day of      April of  the year or of any of the      years  immediately   preceding  the      year in  which such meeting is held      but could  not be  as no meeting of      the Committee  was held during such      preceding year or years."      Under Regulation  5 (1)  the number of officers who are to be  included in the list of suitable officers prepared by the Selection  Committee  is  specified  as  the  number  of substantive vacancies  anticipated  in  the  course  of  the period of  12 months  plus 20%.  Under Regulation  5(2), the number of officers required to be considered are three times the number  which is to be finally included in the list. The number  of   officers  required   to  be   considered  under Regulation 5(2) for selection in the list may be referred to as officers within the zone of consideration.      Persons above  the age  of 54 years on the first day of April of the year in which the Selection Committee meets are not eligible  for being  considered. Therefore, they are not within the  zone of  consideration. This  is set  out in the first  part   of  Regulation  5(3).  The  first  proviso  to Regulation 5(3),  however, states that a member of the State Civil  Service   whose  name   appears  in  the  immediately preceding Select  List in  force  shall  be  considered  for inclusion in  the  fresh  list,  even  if  he  has,  in  the meanwhile, attained  the age of 54 years. The second proviso to Regulation  5(3) states  that  if  during  any  immediate preceding   year/years,    a   person   was   eligible   for consideration but could not be considered because no meeting of the Selection Committee was held that year, such a person will also  be considered  by the  Selection  Committee  even though he may have, in the meanwhile, attained the age of 54 years. In other words. candidates who would have been within the zone of consideration if the Selection Committee had met during  the  year  but  who  lost  the  chance  because  the Selection Committee  did not  meet are  given a chance to be considered at  the first  available opportunity  even though they may have in the meanwhile attained the age of 54 years.      The  Tribunal  has  held  that  the  two  provisoes  to Regulation 5(3)  which require  the Selection  Committee  to consider certain  candidates who  may be above the age of 54 years, has  to  be  interpreted  as  applying  only  to  the candidates who  are within  the  zone  of  consideration  as defined under  Regulation 5(2) but who may have attained the age of  54 years.  These candidates, if they fall within the proviso to  Regulation 5(3),  will have  to be considered by the Committee. We have to consider whether this is a correct interpretation of Regulations 5(2) and 5(3).      In  the   present  case,   the  number  of  anticipated vacancies for  which selection  was held,  were 43.  As  per Regulation 5(2)  the zone  of consideration was fixed at 153 (i.e. 43  vacancies plus  20% x  3). In  addition  to  this, officers (a)  whose names were on the earlier Selection List in force  [one such  officer] (first  proviso to  Regulation 5(3) and  (b) officers  who though above the age of 54, were eligible under the second proviso to Regulation 5(3) because

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there were  no selections  in the  years 1991-92 and 1999-93 [110 such  officers] were  included.  The  total  number  of officer, therefore,  considered by  the Selection  Committee were 153+1+110, that is to say, 264 officers.      According to  the Tribunal,  the zone  of consideration should  have  been  confined  to  only  153  officers.  This interpretation is  in the teeth of the express provisions of Regulation 5(2).  While Regulation  5(2) provides  that  the number of officers required to be considered are three times the number of anticipated vacancies plus 20%. the proviso to Regulation 5(2)  lays down  that in  computing the number of officers who  should be  in the field of consideration under Regulation 5(2),  the number of officers referred to in sub- regulation (3)  shall be  excluded. In  other words,  in the present case,  153 officers  who are  to be  included in the zone of  consideration will  be after excluding officers who qualify under  Regulation 5(3).  Therefore, 153 officers who are to be considered are other than those falling under sub- regulation (3).      Sub-regulation (3)  of Regulation  5  which  confers  a right to  be considered  on certain State Civil Servants who may have  attained the  age of 54 also does not qualify this right to be considered by adding that such a person shall be considered only  if he  is within  the zone of consideration under Regulation 5(2).      Clearly, therefore.  the persons who are required to be considered  for  selection  under  Regulation  5(3)  are  in addition to  the persons  who are  required to be considered under  Regulation   5(2).  In   fact,  this   is  how  these recruitment regulations  have been interpreted over a number of years.  The Union  Public Service Commission which issues instructions regarding  the manner in which list of officers is  to  be  prepared  for  consideration  by  the  Selection Committee  and  the  documents  and  information  which  are required  to  be  submitted  to  the  Union  Public  Service Commission for  selection of such officers clearly sets this out in clause 3(d) of the Instructions:      Clause 3(d):      "Officers who  are over 54 years as      on  1.4.1993   are  ordinarily  not      considered. However,  (i) if  their      names appear in the previous Select      List  or   (ii)  if   no  Selection      Committee Meeting  was held  in the      previous  year(s)   when   he   was      eligible, then  his  case  will  be      considered by the current selection      committee Meeting. For this purpose      his  name   should  figure  in  the      proper  place  in  the  Eligibility      List   and   his   case   will   he      considered only  if his  name falls      within   the   required   zone   of      consideration calculated  according      to vacancies. However, the names of      such officers  will not  be counted      in the normal zone and they will be      taken as  extra,  to  the  required      number of  3 times  the size of the      Select List." The zone  of  selection  therefore.  under  the  Regulations consists of  three  parts;  (1)  officers  who  fall  within Regulation 5(2) after excluding all officers falling   under (2)and (3):  (2) officers  above  the  age  of  54  who  are "carried forward"  from the  earlier Selection List in force

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and: (3) officers above the age of 54 who have been deprived of their  chance of  being considered  due to non-holding of meetings of  the Selection  Committee. All  these are  to be considered by  the Selection  Committee. The  Tribunal  was, therefore. not right in holding that only persons covered by Regulation 5(2) without any exclusion are eligible for being considered by the. Selection Committee.      The second ground of challenge to the selection is that one S.N.Dubey should not have been a member of the Selection Committee because  his brother was one of the 264 candidates being considered  for selection.  The brother  has. in fact, not been selected by the Selection Committee. We fail to see how the selection of all other candidates is vitiated in any manner by this factor.      The last  contention relates to non-application of mind by the  Selection Committee to the task before it because it is contended that the Committee considered 264 candidates in one day  in order  to prepare  a list  of 51 candidates. The State of  Bihar and  the Union  Public Service Commission in their affidavits/written  statements have  clearly  set  out that the  confidential service records of all the candidates in the  zone of  consideration are scrutinized long prior to the  holding  of  the  selection  Committee’s  meeting.  The Committee applies  its mind to the service records and makes its own  assessment of the service records of the candidates marking them  as outstanding, very good. good and so on. The Selection Committee  does not  necessarily  adopt  the  same grading which is given by the Reporting/Reviewing Officer in respect of  each of  the candidates.  In fact  the Selection Committee  makes  an  overall  relative  assessment  of  the confidential report  dossiers of the officers in the zone of consideration. It  thus does  not evaluate  the confidential report dossier  of an  individual in  isolation. It is after this comparative assessment that the best candidates are put in the Select List. In view of the affidavit so filed, there is no  merit in  the contention that the Selection Committee did not  apply its  mind while  preparing  the  list  of  51 officers. The  Tribunal, therefore, was not right in setting aside the  selection made  by the Selection Committee at its meeting of 30th of March, 1994.      The appeals  are, therefore,  allowed. The judgment and order of  the Tribunal  is set  aside and  the  Select  list prepared by  the Selection  Committee at its meeting held On 30th of  March. 1994  is  upheld  as  a  valid  Select  list prepared  in   accordance  with  the  Indian  Administrative Service (Appointment  by Promotion) Regulations. 1955 and in accordance with law. There will be no order as to costs.