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PETITIONER: SARAT KUMAR DASH & ORS.

       Vs.

RESPONDENT: BISWAJIT PATNAIK & ORS.

DATE OF JUDGMENT27/10/1994

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J)

CITATION:  1995 SCC  Supl.  (1) 434 JT 1995 (2)    69  1994 SCALE  (5)81

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.   Delay condoned. 2.   Leave granted. 3.Heard  the  learned  counsel.  While  the  appellants  and respondents-Biswajit  Patnalk  and Jagannath  Prasad  Mishra were  continuing as Drug Inspectors, four vacancies for  the post  of  Asstt.  Drugs Controller,  (junior  Class-I)  have arisen.   Preceding  regular  appointment,  the   Government constituted  a  Departmental Promotion Committee  which  had considered  and recommended the cases of respondents for  ad hoc  promotion to the posts and the Govt. had appointed  the respondents  and referred the matter to the  Public  Service Commission  for  recommendation  for  regular  appointments. Before  recommending  to  the PSC, since  no  rules  or  the criteria  for consideration was prescribed,  the  Government had decided to adopt ’merit-cum’-suitability with due regard to seniority" as principle to consider the case of the  per- sons  for promotion.  The names of 12 candidates,  including ad hoc promoters were sent to the P.S.C. for  consideration. We are informed that since two of them were already promoted to  the  higher posts of Grade-I  Deputy  Drug  Controllers, their cases were not considered.  Two of them were found  to be unfit.  The PSC had thought over the feasibility to apply the  principle of ’merit-cum-suitability with due regard  to seniority; secured the statutory rules applicable to similar selection  posts in other deportments and after  due  delib- eration  adopted the aforesaid principle.   Thereafter,  the PSC  has evolved the procedure, as stated in  the  affidavit filed by the PSC pursuant to our order dated 4.8.1994, thus: "He  (Chaimian the OPSC) explained the system of  evaluation of  C.  C.  R. s. adopted by the  PSC.   The  Commission  is considering the reports of 6 years immediately preceding the time  of  selection.  While evaluating the C.S.R.  they  are graded and awarded marks as follows: (i)  Outstanding: 10 marks

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(ii) Very good: 9 (iii) Good:      8 (iv) Satisfactory: 7 (v) Average:     6 Adverse  remarks are not given any marks and no minus  marks are given.  However, when the assessment contains a critical observation   alongwith   other   favorable   comments   the Commission  takes  an  overall view of  the  assessment  and grades   the  C.R.  as  Average,  Satisfactory,  Good   etc. However, when there is an adverse remark indicating that the  71 integrity  is  doubtful,  the  officer  is  not   considered suitable  for  promotion.  Similarly if  there  are  adverse remarks   for  two  years  the  officer  is  not   generally considered suitable. The  final grading is decided by taking the average  of  the marks awarded for six years.  For final grading categories: A,  B, C, D, E, are adopted.  This is done in the  following manner. 9.8 marks and above Outstanding - Category A 7.8 to 9,79:  Good and very good- Category B 6.8 to 7.79 Satisfactory - Category B 6 to 6.79 Average - Category B Less than 6: unsuitable It  the final placement  those who come within Category  ’A’ are  placed in the top followed by those in category  B.C.D. in  each  category the inter se seniority as  per  gradation list  will  be maintained. Those graded as ’Good’  and  very Good’  are  both  placed in the same  category  ’B’  as  the Commission  follows the principle  that an  officer   graded ’very good’ should not supersede another graded  as ’Good’. In  the case of the highest posts immediately below it  (for example the post of Director an Joint Director, Level-I  and Level-II)  the Commission consider an officer  suitable  for promotion  only  if  he is in category ’B’  i.e.  his  final grading  must  at  least   be  good.  Following  the   above principle the Commission has evaluated  the C.c Rolls of the officers  within the zone of consideration for the  post  of Asstt.  Controller  as in the Statement placed at  Flag  ’X’ Four  officers Sri B.C. Panda, Sri S.K. Das. Sri  R.N.  Sahu and  Sri G.S. Mohapatra come within ’B’ category  and  hence they have been recommended against the four vacancies". 4.  Adhering to the evolved criteria considering  the  cases of  the  candidates, the names of the appellants   and  B.C. Panda  the 5th respondent in these appeals  are  recommended for regular  promotion. The government  had a doubt  whether J.P.   Misra and S.K. Das do not  stand on the same  footing and requested  the PSC  for reconsideration  of the case  of J.p.  Misra.  the  PSC  reaffirmed  its  recommendation   of S.K.Das.  Accordingly   they came  to be  appointed  by  the Government. The respondents challenged their appointments in the Tribunal in its order, dated June 18, 1993 set aside the appointments   on  the  findings  that  there  is  no   rule prohibiting  the  PSC to give reasons in  support  of  their recommendations;  reasons are necessary for   evaluation  of the  relative  merits  of  the  candidates  the   Government independently had not applied its mind of the merits of  the candidates;   no  speaking  order  was  passed   in   making promotions;  and  the  seniority   was  not  given  any  due consideration.   At different places the PSC has  stated  in their   counter   affidavit   of   the   respondents   being unsuitable’  and  ’less  suitable’.  There  is  a  world  of difference  between ’unsuitable’  and ’less suitable’  which would  show  their non application of mind to  the  relevant facts.   Under those circumstances, neither the  PSC  itself

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nor  the  Govt. are clear in their view, as to  the  correct criteria  to  be applied in recommending the  candidates  or making appointments to the posts of Asstt.  Drug  Controller (Junior Class-1). 5. It is contended  by  Shri P.P. Rao, 72 the  learned  senior  counsel for the  appellants  that  the Tribunal has committed grievous error in placing reliance on the  decision  of  this Court in Union of  India  vs.   M.L. Cooper & Ors. (19741 SCR 797).  Therein, unamended Rule 5(2) of the statutory rules provides that in case of supersession of  the officer of the police service of the State, the  PSC was required to record reasons.  Under those  circumstances, this  Court  has  directed that  recording  of  reasons  was necessary.  He further contends that in the judgment itself, this Court held that in case of ’merit-cum-suitability’ with due  regard to seniority, the principle of seniority has  no role  to  play  and  the  ratio  therein  was  not  properly understood   by  the  Tribunal.   We  find  force   in   the contention. 6.   It  is  seen  that the Government  in  the  absence  of statutory rules, have applied, by administrative order,  the principle  of  ’merit-cum-suitability  with  due  regard  to seniority.   It is settled law that in case of promotion  to the  posts of higher cadre, it has always been  the  settled criteria  applied  by the Govts.  is  ’merit-cum-suitability with due regard to seniority’ or merit and ability’ but  not ’seniority’  or seniority-cum-suitability’.  In  fact,  this question  was considered by PSC, as stated  earlier,  before its  evaluation of the respective merits.  They secured  the rules  in  the comparable services of the  State  where  !he principle  of  ’merit-cum-suitability with  clue  regard  to seniority’  is the statutory rule and thereby, the  PSC  had accepted  the recommendation of the Government to apply  the above rule to adjudge the relative merits of the  candidates and in fact they did so apply. 7.   In  Cooper’s case this Court has stated with regard  to the principle thus:               "When Regulation 5(2) says that the  selection               for  inclusion in the list shall be  based  on               merit and suitability in all respects with due               regard to seniority, what it means is that for               inclusion  in the list, merit and  suitability               in  all  respects  should  be  the   governing               consideration  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 factor, or  if               it   is  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.  But, to say,  as  the  High               Court   has   done  that  seniority   is   the               determining factor and that it is only if  the               senior  is found unfit that the junior can  be               thought of for inclusion in the list is,  with               respect,  not a correct reading of  Regulation               5(2).1  do not know what the High Court  would               have said had Regulation 5(2) said: "Selection               for  inclusion  in the select  list  shall  be               based  on seniority with due regard  to  merit               and suitability".  Would it have said that the               interpretation to be put upon the hypothetical               Sub-regulation (2) is the same as it put  upon

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             the actual Sub-regulation?" 8.  In case of merit-cum-suitability, the  seniority  should have  no role to play when the candidates were found  to  be meritorious  and suitable for higher posts.  Even  a  junior most  man  may steal a march over his seniors and  jump  the queue for accelerated promotion.  This principle  inculcates dedicated  service,  and accelerates ability  and  encourage merit  to  excel merit.  The seniority would  have  its  due place  only  where the merit and ability  are  approximately equal  or where it is not possible to assess inter-se  merit and  the  suitability  of  two  equally  eligible  competing candidates who come very close in the order of merit 73 and ability.  Under those circumstances, the seniority  will play  its  due role and calls it in aid  for  consideration. But  in  case where the relative merit  and  suitability  or ability  has been considered and evaluated, and found to  be superior,  then the seniority has no role to play.   In  our view  the PSC has evolved correct procedure in  grading  the officers  and the marks have been awarded according  to  the grading.  It is seen that the four officers have come in the grading  of  ’B’.  In consequence, the PSC had  adopted  the seniority of the appellants and Panda in the lower cadre  in recommending  their  cases for appointment in the  order  of merit. 9.   Mr. Mehta, the learned counsel for the respondent- J.P. Mishra contended that the PSC itself has evolved grading  of outstanding,  very  good, good, satisfactory,  average  etc. from  C.Rs. which is not open to the PSC to evolve  grading. We  cannot accept that contention to be  correct.   Firstly, this contention was not raised in the Tribunal and secondly, from  the  file produced before us by the PSC, it  is  clear that they have seen the grading was given by the  Government and  they evolved the criteria of giving marks on the  basis of the grading given by the Government.  With regard to  the merit and ability this Court has consistently been following the  view  as extracted herein from Cooper’s case  in  other decisions  vide R.S. Das v. U.O.I & Ors. (1986  Suppl.   SCC 617),  National Institute of Mental Health & Neuro  Sciences v. Dr K. Kalyana Raman & Ors. (AIR 1992 SC 1906, para 7) and Syed Khalid Rizvi & Ors. v. UO.L & Ors. (1993 suppl. (3) SCC 575, paras 8 & 9 at pages 584 to 586). 10.  Accordingly, we hold that the principle of  ’merit-cum- suitability with due regard to seniority’ has been correctly applied  on the facts in this case.  We have also seen  that the PSC has objectively evolved the criteria and  determined the  merit and suitability of the candidates.  In S.R.  Dass case,  the  amended  Rule  5(2) of  the  Regulation  of  IAS (Appointment  by  Promotion) Regulations,  1955,  Rule  5(4) evolved  the  principle  to classify  eligible  officer  as, outstanding,  very good, good or unfit, as the case may  be, on  an overall relative assessment of their service  record, Rule   5(5)  directed  to  prepare  list  and  include   the candidates  for  appointment  to  the  required  number   of vacancies.   Considering  the Rule at p.631 in para  16  and following  the ratio in Cooper’s case, this Court held  that the  grading  was  for the purpose of being  placed  in  the select  list to ensure that select list is drawn up  on  the basis of merit and suitability and to obviate the  necessity of giving reasons for the super-session of any officer.   In para  18  at p.632, it was further held that  there  was  no necessity  to  record  any reason, in view  of  the  amended statutory  provisions.   Therefore,  the  criticism  of  the Tribunal  that due regard to the seniority was not given  is not correct.

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11.  The next question is whether omission   to       record reasons amounts to violation  of  the principles of  natural justice.  The  principle of audi alterim partem is  a  basic concept   of   the  principle  of  natural   justice.    The omnipotency  inherent in the doctrine is that no one  should be condemned without being heard or given an opportunity  to the  person effected to present his case before  taking  the decision or action.  In the field of administrative  action, this  principle  has been applied to ensure  fair  play  and justice to the effected 74 person.   However,  the doctrine is not’ a cure to  all  the ills  in  the  process.  Its application  depends  upon  the factual  matrix  to improve  administrative  efficiency  and expediency  and to meet out justice.  The procedure  adopted would  be just and fair The reasons are links between  maker of  ’ the order or the author of the decision and the  order itself The record is called to consider whether he has given due  consideration to the facts placed before him before  he arrives  at  the decision.  Therefore, the  reasons  in  the order or found from the record bridges the link between  the maker  of  the  order  and the  order  itself  or  decision. Therefore  the  natural  justice  is  not  a  rigid  nor  an inflexible  rule.   It  should be applied to  a  given  fact situation,  depending upon the background of  the  statutory provisions,  nature of the right which may be  effected  and the  consequences that           may entail.  It is  already seen  that  the tribunal evolved the objective  criteria  in awarding marks to the given grading of the candidates and on its  basis recommended their cases for promotion.   In  R.S. Dass  case,  this Court held that the grading  itself  is  a reason  and no separate reasons in that behalf in  arranging the order of merit need be given.  The grading is to obviate the  need  to record reasons.  The finding of  the  Tribunal that the selection by PSC without recording reasons or  need to  record separately the reasons for evolving the  criteria for selection is also clearly illegal. 12.It  is  incumbent  upon  the  appointing  authority   the Government  to have the opinion of the PSC and  to  consider the   same.    Since  the  Government   had   accepted   the recommendations made by the PSC as found from the note file, there is no need for the Government again to record  reasons in  accepting  the  recommendations made by  the  PSC.   The finding of the Tribunal that the bald and vague order of ap- pointment is arbitrary, therefore, is illegal.  Thus we  are of  the considered opinion that the Tribunal has  grievously erred  in directing the Government to reconsider the  matter afresh. 13. The appeals are accordingly allowed.  The orders of  the Tribunal  are set aside and the O.As. filed in the  Tribunal stand dismissed.  No costs. 76