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CASE NO.: Appeal (civil)  3024 of 2005

PETITIONER: U.P.S.C.

RESPONDENT: K. RAJAIAH & ORS.

DATE OF JUDGMENT: 03/05/2005

BENCH: P. VENKATARAMA REDDI & P.P. NAOLEKAR

JUDGMENT: JUDGMENT

ORDER

ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 709 OF 2004

WITH C. A. NO. \005.. OF 2005 @ S.L.P.(C) NO. 728 OF 2004

P. VENKATARAMA REDDI, J.

Leave granted. The 1st respondent herein belonging to A.P. Police  Service of the rank of Superintendent of Police, filed an  application before the Central Administrative Tribunal,  Hyderabad Bench, in the year 2002 questioning the two  notifications dated 21.1.2002 & 15.2.2002 issued by the  Central Government selecting and appointing certain police  officers of Andhra Pradesh State cadre to the Indian Police  Service against the vacancies of 1998 and 1999. It has been  the case of the 1st respondent that despite his outstanding  service he has not been selected whereas officers having  inferior merit were selected. The main contention before the  Tribunal was that there was no proper assessment of merit  by the Selection Committee and the awards and  commendations which he got and the ’outstanding’ grading  given in the ACRs for as many as four years were not duly  taken into account by the selecting body. He claimed to  possess superior merit over the three respondents who were  senior to him and who were selected and appointed by the  Government. The Tribunal did not accept the contention of  the respondent. It dismissed the application while observing  thus: "\005On careful scrutiny of the ACRs of the applicant  and other eligible candidates in the list, we are  satisfied that the official respondents have  considered the merits and demerits of each and  every candidate while notional benefits keeping  open the said two posts for consideration for  Selection from others in the eligibility list.

Though it is pointed out by the learned counsel  for the applicant that the applicant has been  recommended President’s Police Medal for  distinguished service rendered by him and this  fact has not been taken into consideration by the  said Committee, it is found that the said Police

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Medal has been awarded to the applicant on the  Republic Day of 2001 i.e, nearly after one year  from the date on which the Selection Committee  met i.e, 22.12.1999 for preparation of the select  lists for the years 1996-1997, 1998 and 1999. As  already pointed out by us, whatever awards given  to the applicant during various years prior to  22.12.1999 are noted in the ACRs of the  respective years of the applicant and they were  taken into consideration by the Selection  Committee in giving the grading to the applicant.  Thus it is found that the Selection Committee has  taken into consideration all the relevant facts in  making in-depth assessment of the candidates of  the eligibility lists of the relevant years 1998 and  1999."   Aggrieved by the said order, the 1st respondent filed a  writ petition under Article 226 of the Constitution in the High  Court of Andhra Pradesh. Apart from the prayer to quash  the order of the Tribunal and the two notifications issued by  the Central Government in 2002, the first respondent  sought for the direction to set aside the appointments of  respondents 5 to 7 and to convene a fresh Selection  Committee for re-assessment of comparative merit on the  basis of the service records and not confining the  consideration to ACRs only. The High Court proceeded on the premise that the 1st  respondent had four ’outstanding’ gradings from "1996 to  1999" (it must be 1994 to 1996) in the ACRs, whereas the  other officers did not have so many outstanding gradings.  The High Court observed that no reasons were disclosed for  revising the classification to the detriment of the writ  petitioner. The main reason however which weighed with  the High Court was that the Selection Committee omitted to  consider the relevant material which, according to the High  Court, was not merely the ACR, but also the entire service  record / service register of the officers. The High Court  observed thus: "Thus, it is clear that what was considered by the  Selection Committee was the ACRs only and not  the service records. On directions by this Court,  the Government produced the records. The  crucial file in which the Committee categorized  the officers has not been made available. The said  file only clears the mist as to whether the  Committee considered only ACRs or the S.Rs.  also. We have to necessarily draw adverse  inference in this regard\005

\005It is one thing to say that the S.Rs. and ACRs of  the officers have been placed before the  Committee and on the basis of these documents  the categorization was made. But, it is another  thing to say that the Committee can categorise  on the basis of ACRs. The latter procedure  conflicts with sub-regulation (4) of Regulation 5.  The learned tribunal failed to analyse and  examine this issue and thereby committed an  error apparent on the face of the record\005"

The High Court accordingly allowed the writ petition and  directed the official respondents to constitute a fresh  Selection Committee and to prepare the panel of officers to  be promoted to IPS for the year 1999 by assessing "overall

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relative assessment by considering the relevant ACRs and  Service Records as directed supra". Assailing this judgment  of the High Court, the SLPs were preferred by the Union  Public Service Commission (UPSC) and the Union of India.  Before proceeding further, we may note the relevant  provisions contained in Regulation 5(4) & 5(5) of Indian  Police Service (Appointment by Promotion) Regulations,  1955 in regard to preparation of select list. 5(4)            The Selection Committee shall classify  the eligible officers as ’outstanding’, ’very good’,  ’good’ or ’unfit’ as the case may be, on an overall  relative assessment of their service records.

5(5)            The list shall be prepared by including  the required number of names, first from among  the officers finally classified as ’outstanding’ them  from among those similarly classified as ’very  good’ and thereafter from amongst those similarly  classified as ’good’ and the order of names inter  se within each category shall be in the order of  their seniority in the State Police Service.

After hearing the arguments on 18.1.2005, the following  order was passed by us: "Having considered the arguments, we are of the  prima facie view that the reason which weighed  with the High Court in quashing the select list of  IPS for the year 1999 relating to Andhra Pradesh  State is not correct. It seems to us that the  Annual Confidential Reports Parts I & II placed  before the Selection Committee are  comprehensive enough to furnish requisite  material to judge the comparative merit and that  the non-perusal of service register/record by itself  has not vitiated the selection. Still the question  that remains is whether the consideration was  based on the relevant criteria as laid down in the  Regulations, namely, Indian Police (Appointment  by Promotion) Regulations, 1955 remains to be  considered, especially in view of certain  observations made by the High Court in support  of the respondent’s plea on merits. Instead of  remitting the matter to the High Court for fresh  consideration, we deem it just and proper to  settle the issue once and for all, especially, for  the reason that the respondent-writ petitioner has  retired from the State Police service at the age of  58 years and if his claim is accepted, he would  perhaps serve as an Officer of IPS for a short  time.

       Though the broad stand taken by the UPSC  in the counter-affidavit filed before the Tribunal /  High Court and also in the memorandum of SLP  does not spell out the precise reason as to why  the respondent who was graded outstanding for  three years preceding the year under  consideration was not selected, certain facts  including the actual procedure that is being  followed by UPSC to evaluate the candidates were  projected in the course of arguments. Certain  documents were placed before us for our perusal  though the copies were not served to the  respondent’s counsel.

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       It is only fair and proper that the UPSC files  an additional affidavit clarifying the relevant  aspects bearing on the non-selection of the  respondent as per the extant procedure so that  the respondent will be able to make out his case  with reference to those aspects."

Pursuant to this Order, an additional affidavit was filed on  behalf of UPSC and reply thereto was filed by the 1st  respondent. Thereafter, the matter has been listed for  further hearing.         In regard to the service records and ACRs, we reiterate  the prima facie view expressed by us in our Order dated  18.1.2005.  The assumption underlying the Writ petitioner’s  contention that the ACRs do not reflect the details of awards  and commendations and the penalties is not correct.  Therefore, the substratum of the reasoning of the High  Court that relevant material in the form of service registers  were not made available to the Selection Committee for  scrutiny collapses. We cannot also endorse the view taken by the High  Court that consistent with the principle of fair play, the  Selection Committee ought to have recorded reasons while  giving a lesser grading to the 1st respondent. The High Court  relied on the decision of this Court in National Institute of  Mental Health & Neuro Sciences Vs. Dr. K. Kalyana  Raman & Ors. [AIR 1992 SC 1806]. Far from supporting  the view taken by the High Court, the said decision laid  down the proposition that the function of the Selection  Committee being administrative in nature, it is under no  obligation to record the reasons for its decision when there  is no rule or regulation obligating the Selection Committee  to record the reasons. This Court then observed "even the  principles of natural justice do not require an administrative  authority or a Selection Committee or an Examiner to record  reasons for the selection or non selection of the person in  the absence of statutory requirement. This principle has  been stated by this Court in R.S. Das Vs. Union of India  [1986 (Suppl.) SCC 617] at Page 633." In the next  paragraph, the learned Judges indicated as to what is  expected of the Selection Committee, in the following  words: "\005we may state at the outset that giving of  reasons for decision is different from, and in  principle distinct from the requirements of  procedural fairness. The procedural fairness is the  main requirement in the administrative action.  The ’fairness’ or ’fair procedure’ in the  administration action ought to be observed. The  Selection Committee cannot be an exception to  this principle. It must take a decision reasonably  without being guided by extraneous or irrelevant  consideration. But there is nothing on record to  suggest that the Selection Committee did  anything to the contrary\005"

That being the legal position, the Court should not have  faulted the so called down gradation of the 1st respondent  for one of the years. Legally speaking, the term ’down  gradation’ is an inappropriate expression. The power to  classify as ’outstanding’, ’very good’, ’good’ and ’unfit’ is  vested with the Selection Committee. That is a function  incidental to the selection process. The classification given  by the State Government authorities in the ACRs is not  binding on the Committee. No doubt, the Committee is by

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and large guided by the classification adopted by the State  Government but, for good reasons, the Selection Committee  can evolve its own classification which may be at variance  with the gradation given in the ACRs. That is what has been  done in the instant case in respect of the year 1993-94.  Such classification is within the prerogative of the Selection  Committee and no reasons need be recorded, though it is  desirable that in a case of gradation at variance with that of  the State Government, it would be desirable to record  reasons. But having regard to the nature of the function and  the power confided to the Selection Committee under  Regulation 5(4), it is not a legal requirement that reasons  should be recorded for classifying an officer at variance with  the State Government’s decision. What remains is whether the case of the 1st respondent  was duly considered vis-a-vis the other eligible officers  including Respondents 5 to 7. The question is whether the  non-selection of the 1st respondent to IPS against the  vacancies pertaining to A.P. State for the year 1999 is on  account of non-adherence to relevant rules or arbitrariness  in the process of selection.         The actual procedure adopted and the factors taken  into account by the UPSC / Selection Committee has been  narrated in the additional affidavit dated 15.2.2005 filed on  behalf of UPSC sworn to by the Deputy Director (AIS),  UPSC. The relevant extracts are given hereunder: "It is also submitted that the Regulations do not  provide for the detailed method to be followed in  the matter of assessment of officers. The  Commission has, therefore, evolved certain  guidelines to be followed by the Selection  Committee in the matter of the procedure for  assessing the records. It is submitted that the  confidential procedure of the Union Public Service  Commission has been circulated to this Hon’ble  Court. The procedure contained therein is  followed by the Selection Committee in respect of  all the States/Cadres for induction to the All India  Services under the Promotion Regulations.

It is submitted that the Selection Committee is  required to go through the service records of each  of the eligible officers, with special reference to  the performance of the officer during the last five  years (preceding the years for which the Select  List is being prepared), deliberating on the quality  of the officer as indicated in the various columns  recorded by the Reporting/Reviewing Officer/  Accepting Authority in the ACRs for different  years and then finally arrive at the classification  to be assigned to each officer. The Selection  Committee also takes into account orders  regarding appreciation for the meritorious work  done by the concerned officers. Similarly, it is  also required to keep in view orders awarding  penalties or any adverse remarks communicated  to the officer, which even after due consideration  of his representation, have not been completely  expunged.

That as per the uniform procedure followed by  the Selection Committee for preparing the IPS  Select List for 1999, the ACRs for the years 1993- 94, 1994-95, 1995-96, 1996-97 and 1997-98  were taken into consideration by the Selection

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Committee for categorizing all the eligible SPS  officers as ’outstanding’, ’very good’, ’good’, or  ’unfit’ as the case may be.

That, for the year 1999 against 03 (three)  vacancies, 09 (nine) officers were considered by  the Selection Committee. The respondent No.1  was considered at S.No.08 in the eligibility list of  1999. For preparation of the Select List of 1999,  the ACRs for the years 1993-94, 1994-95, 1995- 96, 1996-97 & 1997-98 were taken into  consideration because the crucial date for  reckoning the eligibility is 01.01.1999. The  Selection Committee on an overall relative  assessment of his service record assessed  Respondent No.1 as ’Very Good’ as he secured  ’Outstanding’ only in respect of three years. On  the basis of overall grading as ’Very Good’, the  name of Respondent No.1 could not be included  in the Select List of 1999 due to the statutory  limit on the size of the Select List. That, sufficient  number of officers senior to the respondent No.1  with overall grading as ’Very Good’ were available  and in accordance with the provisions of  Regulation 5(5) of the Promotion Regulations,  their names were included in the Select List of  1999. Two officers senior to the Respondent No.1  who were graded as ’Very Good’ also could not  find a place in the Select List of 1999 due to the  statutory limit on the size of the Select List."

       We have also gone through the records of assessment  placed before us by the learned counsel for the UPSC. The  arguments in the additional affidavit coupled with the  contents of the record make it clear that the 1st respondent  could not be selected for the reason that he did not get the  gradation of ’outstanding’ for four years in a block of five  years that was taken into account for the purpose of  evaluating the merits of the candidates. The learned counsel  for the 1st respondent points out that for the year 1993-94  which falls within the five year range, the first respondent  ought to have been graded as ’outstanding’ in conformity  with the grading in the ACR. However, the selection  Committee graded him as ’very good’ in view of the  difference of opinion expressed by the reporting officer and  the reviewing officer. We do not find any unfairness or  arbitrariness in grading the 1st respondent as ’very good’ for  the year 1993-94. If so, as he gets ’outstanding’ grading  only for three years, his overall grading cannot be  ’outstanding’ in view of the existing guidelines adopted by  the Commission. Normally, the Court will not interfere with  the evaluation done by the Commission on a consideration  of relevant material. However, we have some doubts on the  validity of guidelines evolved in this behalf. The procedure of  assigning the overall grading as ’outstanding’, only if an  officer was classified as such in the ACRs of four out of five  years, seems to dilute the procedure of selection by merit  and give primacy to seniority to some extent. For instance,  if a junior officer gets three ’outstanding’ grades and two  ’very good’ gradings, the officers senior to him, though they  might not have got ’outstanding’ even for one year, will be  selected by virtue of their seniority. Whether this result that  follows from the application of the criterion that is being  adopted by the Commission is contrary to the statutory  Regulations or whether such criteria would be violative of

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Articles 14 & 16, is a matter which might deserve serious  consideration.  But, in the absence of specific challenge to  the rule or the procedural guidelines spelt out in the  additional affidavit filed by the UPSC and the arguments not  having been advanced on this aspect, we are not inclined to  express a definite opinion on this aspect.         Taking an overall view and having due regard to the  limitations inherent in judicial review of selection process by  an expert body, we are not inclined to nullify the decision  taken by the UPSC.         In the light of the foregoing discussion, we set aside  the judgment of the High Court and hold that the Tribunal  has rightly dismissed the application filed by the 1st  respondent. The appeals are thus allowed.