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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: N.R. BANERJEE & ORS.

DATE OF JUDGMENT:       16/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      These appeals by special leave arise from the orders of the Central Administrative Tribunal, Jabalpur Bench, made on August 14, 1996 in OA Nos.219/95 and 237/96. The controversy involved relates  to promotion to the post of Senior General Manager  in  the  Indian  Ordinance  Factories  under  India Ordinance  Factories   Services  Rules.   The  question  for consideration is;  as to  when the  vacancies in  the  above posts would  arise? The  grade and scale of pay for the said post is  Rs.3700-8000/-. For  the  year  1994-95,  panel  of successful candidates was required to be prepared. According to the appellants, there were no clear vacancies as on April 1994. Four members in the above grade were to retire in that year. Proposal  for filling  up the  ensuing vacancies  from Ordinance Factory Board was sent to the Ministry on December 22, 1993.  The Ministry had communicated to the Union Public Service Commission its approval on February 8, 1994. A.C.Rs. of the  eligible candidates were approved on August 16, 1994 and the  incumbent members joined as members of the Board on August 22,  1994, September  03, 1994,  October 6,  1994 and March 1, 1995. Consequently the D.P.C. met on March 15, 1995 for selection of Officers to fill up the four vacancies.      On  this  factual  matrix,  it  is  contended  for  the appellants that  the crucial date for the D.P.C. meeting for selection should  be April  or May  1995  for  selection  of candidates to fill up the vacancies of the year 1994-95. The A.C.Rs. recorded  of all  the candidates  falling within the zone of  consideration and approved by the Government, as on March 31,  1994, are  required to  be looked into and merits adjudged.  The   Tribunal,  therefore,   was  not  right  in directing the  Government to ignore the A.C.Rs. for the year 1994 and  consideration of  the candidates  eligible by then upto March,  1993. The  D.P.C. was  to be  constituted as on April 1,  1994. Resultantly,  the direction  were  given  in paragraphs 25  and 28  for consequential  action. Shri Altaf Ahmed, learned  Additional Solicitor  General, contends that the view  of the  Tribunal is not correct in law. As per the procedure,  preparation  of  the  panel  of  candidates  for consideration by  the D.P.C.  to fill up the clear vacancies

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as on  April 1994  is necessary. A.C.Rs. are prepared on the basis of  the performance  during financial year which would be October  1 of the  year. In this case, the A.C.Rs. of the incumbents are written on the financial years basis;. It was approved by the Government in March 31, 1995. Therefore, the D.P.C. could not have got approved A.C.Rs. before that date, namely, as  held by  the Tribunal  on March  19,  1993.  The direction, therefore,  that the  D.P.C. in  its  proceedings should take  into consideration  A.C.Rs. of all the eligible candidates as  on April,  1993 is  incorrect. Though,  prima facie, we  are impressed  with the  arguments of  Shri Altaf Ahmed, on  deeper probe  and on  going through the procedure laid by  the Ministry  of Personnel and Training, we find no force in  the contention. Preparation of the action Plan for consideration by  the D.P.C. of the respective claims of the officers within  the Zone  and  thereafter  for  setting  in motion the  preparation of  panel on  year  wise  basis,  is elaborately mentioned.  In case  of their  failure to do so, what further  procedure is  required to  be followed is also indicated in  the rules.  It thereby manifests the intention of  the   rue-maker  that  the  appellant-Government  should estimate the  anticipated vacancies,  regular vacancies  and also   vacancies   arising   thereafter   due   to   various contingencies and  it should  also get  the A.C.Rs. prepared and approved.  it is  also made clear that the D.P.C. should sit on  regular basis  to consider the cases of the eligible candidates within  the zone  of consideration. The object is clear that  the Government  should keep  the panel  ready in advance so that the vacancies arising soon thereafter may be filled up  from amongst  the approved candidates whose names appear in  the panel. In that behalf, it is seen that in the guidelines issued by the Government in Part I of clause (49) dealing  with  Functions  and  Composition  of  Departmental promotion Committee  etc.  necessary  guidelines  have  been enumerated. It  envisages that  a post  is  filled  upon  by promotion where  the Recruitment Rules so provide. In making promotions, it  should be  ensured that  suitability of  the candidates for  promotion is  considered in an objective and impartial manner.  In other  words, the consideration of the candidate  is   not  clouded   by   any   other   extraneous considerations like  caste, creed, colour, sect, religion or region. In consideration of claims, merit alone should enter into objective and impartial assessments. The object appears to be  that the  A.C.Rs. be written by competent officer and approved by  superior officer  objectively  and  impartially without being  influenced by  any extraneous  and irrelevant consideration, to  augment efficiency  in public service and to  improve   competence.  For  the  purpose  of  selection, Department Promotion  Committee should  be  formed  in  each Ministry/Department/Office, whenever an occasion arises, for promotions/confirmations etc.  The  D.P.Cs.  so  constituted shall judge the suitability of officers for: (a)  promotions to selection as well as non-selection posts; (b)  confirmation in their respective grades/posts; (c)  assessment of  the work and conduct of probationers for the purpose  of determining  their suitability for retention in service  of their  discharge from  it or  extending their probation; and (d)  consideration  of  cases  of  Government  servants  for crossing the Efficiency Bar.      Rule 2.1 relates to composition of the D.P.C. for Group A and  Group B  Officers. Members included in DPCs should be officers who  are at least one step above the posts in which promotion/confirmation is  be made  as indicated thereunder. This is  consistent with the law laid by this Court in State

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Bank of India & Ors. vs. Kashinath Kher & Ors. [(1996) 8 Sec 762] wherein  it was  held that  the object  of writing  the confidential  report   is  two-fold,   i.e.,  to   give   an opportunity to  the officer  to remove  deficiencies and  to inculcate  discipline.   Secondly,   it   seeks   to   serve improvement of  quality and  excellence  and  efficiency  of public  service.   The  officer   should  show  objectivity, impartiality and  fair  assessment  without  any  prejudices whatsoever with the highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of  the individual officer. Lest the officers get demoralised which  would be  deleterious to his efficacy and efficiency  of  public  service,  the  confidential  reports should be  written by a superior officer of high rank. There should be  another higher  officer in rank above the officer who has written confidential report to review such report.      Part II  of the guidelines relating to the frequency of meeting of  the D.P.C.  Para 3.1  indicates that  the D.P.Cs should be  convened at  regular  annual  intervals  to  draw panels which could be utilised for making promotions against the vacancies  occurring during  the course  of a  year.  In other words,  the life  of the  penal is  one year. For this purpose,  it  is  essential  for  the  concerned  appointing authorities to  initiate action  to fill  up the existing as well as  anticipated vacancies well in advance of the expiry of the previous panel, by collecting relevant documents like A.C.Rs., integrity  certificates, seniority  list  etc.  for placing before the D.P.C.      D.P.Cs. should be convened every year, if necessary, on fixed date,  i.e. 1st  of April or May. In the middle of the para, by  way of  amendment brought  on  May  13,  1995,  it postulates that  very often action for holding D.P.C meeting is initiated  after the  vacancy has arisen. This results in undue  delay   in  filling   up  of   vacancies  and  causes dissatisfaction among  those who are eligible for promotion. It may be indicated that regular meeting of D.P.C. should be held every  year for each category of posts so that approved select panel  is available  in advance for making promotions against vacancies  arising every  year. Under  para 3.2, the requirement of  convening  annual  meetings  of  the  D.P.C. should be  dispensed with  only after a certificate has been issued  by  the  appointing  authority  that  there  are  no vacancies to  be filled  by promotion or no officers are due for confirmation  during the  year in  question.  It  would, thus, be  seen that  D.P.Cs. are required to sit every year, regularly on  or before  1st April or 1st May of the year to fill up  the vacancies likely to arise in the year for being filled up.  The required  material should  be  collected  in advance  and   merit  list   finalised  by   the  appointing authorities and  placed before the D.P.Cs for consideration. This  requirement   can  be  dispensed  with  only  after  a certificate is issued by the appointing authority that there are no  vacancies to  be filed  by  promotion,  or  that  no officers are  due  for  confirmation,  during  the  year  in question.      Part  III   deals  with  preparatory  action  plan  for consideration for promotion. Para 4.1 reads as under;      "It is essential that the number of      vacancies in  respect  of  which  a      panel is  to be  prepared by  a DPC      should be  estimated as  accurately      as possible.  For this purpose, the      vacancies to  be taken into account      should  be   the  clear   vacancies      arising in a post/grade/service due

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    to death,  retirement, resignation,      regular  long  term  promotion  and      deputation  or   from  creation  of      additional posts on a long term. As      regards vacancies  arising  out  of      deputation,  only  those  cases  of      deputation  for  periods  exceeding      one  year   should  be  taken  into      account, due  note, however,  being      kept also  of  the  number  of  the      deputationists likely  to return to      the  cadre   and  who  have  to  be      provided  for.  Purely  short  term      vacancies created  as a  result  of      officers proceeding on leave, or on      deputation for  a  shorter  period,      training etc.,  should not be taken      into account  for  the  purpose  of      preparation of  a panel.  In  cases      where  there   has  been  delay  in      holding DPCs  for a  year or  more,      vacancies should be indicated year-      wise separately."      Crucial date for determining eligibility has been dealt with thereunder.  By an  amendment brought  w.e.f. July  19, 1989, it  is stated  that  relevant  dates  for  determining eligibility of  the officers  for promotion  would be, where A.C.Rs. are  written calendar yearwise, 1st July of the year and where  the A.C.Rs.  are written  financial yearwise, 1st October of  that  year.  The  other  details  prescribed  in Chapter IV  are not  material for  the purpose of this case. Part 6.4.1  deals with  preparation of  yearwise  panels  by D.P.C. which reads as under;      "Where for  reasons beyond control,      the  DPC   could  not  be  held  in      year(s), even  though the vacancies      arose during  that year (or years),      the first DPC that meets thereafter      should   follow    the    following      procedures :      (i)  Determine the actual number of           regular vacancies  that  arose           in  each   of   the   previous           year(s) immediately  preceding           and  the   actual  number   of           regular vacancies  proposed to           be filled  in the current year           separately.      (ii) Consider in respect of each of           the years  those officers only           who would  be within the field           of choice  with  reference  to           the  vacancies  of  each  year           starting  with   the  earliest           year onwards.      (iii) Prepare  a ‘Select  list’  by           placing the select list of the           earlier year above the one for           the next year and so on;      It would,  thus,  be  seen  that  the  authorities  are required  to   anticipate  in   advance  the  vacancies  for promotion on  regular basis  including long  term deputation posts and  additional posts  created and  then to  take  the action plan  in finalising  the A.C.Rs.  preparation of  the select list  and place  necessary material before the D.P.C.

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for consideration  of the  candidates  within  the  zone  of consideration,  as  are  found  eligible  for  the  relevant year/years.      D.P.C. in the present case was directed to consider the cases of  all the  eligible candidates  within the  zone  of consideration so  that there  will not  be any heart burning among the  eligible persons  whose claims have been withheld for consideration  for promotion to the higher post. In S.K. Rizvi &  Ors. vs.  Union of India & Ors. [1993 Supp. (3) SCC 575] the  mandatory duty  of the  preparation of  the select list of the officers for promotion to the All India Services has been  indicated in  para 35  of the judgment at page 605 thus: "We,  therefore, hold  that preparation  of the select list every  year is  mandatory. It would subserve the object of the  Act and the rules and afford an equal opportunity to the  promotee   officers  to   reach  higher   echelons   of the service. The  dereliction of  the  statutory  duty  must satisfactorily be  accounted for  by  the  State  Government concerned and  this  Court  takes  serious  note  of  wanton infraction".      It would thus be seen that the claims of the candidates eligible have to be considered for promotion objectively and dispassionately, with a sense of achieving many-fold purpose (1) affording  an opportunity  to an  incumbent  to  improve excellence, honesty, integrity, devotion to public duty; (2) inculcating discipline in service; (3) afford opportunity to every eligible  officer within  zone  of  consideration  for promotion to  higher post  or officer;  and (4) ensuing that the Committee  regularly meets  and  considers  their  claim objectively, impartially  with high  sense of responsibility in accordance  with the  procedure and  finalisation of  the list in  advance so  as to  fill up vacancies arising in the year from  the approved  panel without any undue delay. They are the  salutory principles,  purpose and the policy behind the above rules and the Government should follow them.      Considered from  that perspective, the question arises: whether the  view taken by the Tribunal is justified in law? It is  true that  filling up  of the  posts are for clear or anticipated vacancies arising in the year. It is settled law that mere  inclusion of  one’s name  in the  list  does  not confer any  right in  him/her  to  appointment.  It  is  not incumbent that all posts may be filled up. But the authority must act  reasonably, fairly  and  in  public  interest  and omission thereof  should not  be arbitrary.  In  Shankarasan Dash v.  Union of India [(1991) 2 SCR 567], the Constitution Bench had  held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant  recruitment rules  so indicate.  The State  is under no  legal duty  to fill up all or any of the vacancies even thought  he State  acts in  arbitrary manner. In Babita Prasad &  Ors. v.  State of Bihar & Ors. [(1993) Supp. 3 SCC 268] it  was held  that mere  inclusion of one’s name in the panel does  not confer  on him/her any indefeasible right to appointment. It  was further held that the purpose of making panel was  to finalise  the list  of eligible candidates for appointment. The  preparation of  the panel should be to the extent of  the notified  or  anticipated  vacancies.  Unduly wrong panel  should not  be operated.  In Union Territory of Chandigarh v. Dilbagh Singh & Ors. [(1993) 1 SCC 154] it was held that  the mere  fact that  a candidate’s  name finds  a place in  the  select  list  as  a  selected  candidate  for appointment to  a  post,  does  not  confer  on  him/her  an indefeasible right  to be  appointed in  such  post  in  the absence  of   any  specific   rule  entitling  him  to  such appointment.  In  State  of  Bihar  &  Ors.  v.  Secretariat

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Assistant Successful  Examinees Union  1986 & Ors. [(1994) 1 SCC 126]  it was  held that  a person  who is  selected  and empanelled does  not on account of empanelment alone acquire any indefeasible  right to  appointment. Empanelment  is, at the best,  a condition  of eligibility  for the  purposes of appointment and  that by itself does not amount to selection or creation of a vested right to appointment unless relevant rules state  to the  contrary. However,  in the light of the above principles  and  in  the  light  of  the  clear  rules extracted hereinbefore,  it is  seen that  the  exercise  of preparation of  the panels  is undertaken well in advance to fill up  the clear  vacancies of  anticipated vacancies. The preparation and  finalisation of  the yearly  panel,  unless duly certified  by the  appointing authority that no vacancy would arise  or no  suitable candidate  was available,  is a mandatory requirement.  If the  annual panel  could  not  be prepared for  any justifiable  reason, yearwise panel of all the eligible candidates within the zone of consideration for filling up  the vacancies  each year  should be prepared and appointment  made   in  accordance   therewith.   In   Nagar Mahapalika, Kanpur  v. Vinod  Kumar Srivastava  [AIR 1987 SC 847], this  Court  had  pointed  out  with  respect  to  the prescription of  the limitation  of one  year of the waiting list thus.      "The    reason    underlying    the      limitation of  the period  of  list      for one year is obviously to ensure      that other  qualified  persons  are      not deprived  of their  chances  of      applying  for   the  post   in  the      succeeding year  and being selected      for appointment."      It is  true that the material furnished before us would indicate that  action was  taken on December 22, 1993 by the Ordinance Factory  Board and  circulated for  action  to  be taken by  the Government  and thereafter  the  Union  Public Service Commission  was  consulted.  Action  taken  on  this material should  have been taken much earlier to the date on which it  was taken  since they  knew that four members were due to  retire in  August, September, October 1994 and March 1995. There  were anticipated  vacancies likely  to arise on permanent basis  and promotion  to them  was to  be made  on regular  basis.   In  other   words,  they  were  all  clear vacancies. So  they were  to be  finalised before April 1994 and the  confidential  reports  should  have  been  approved before 31st  March 1993  and all  eligible candidates within the zone  of consideration  as on  the date  of D.P.C.  were entitled to  be  considered.  The  direction  given  be  the Tribunal referred to above is clearly in accordance with the procedure indicated  hereinbefore. Therefore, we do not find that the  orders are vitiated by any error of law warranting interference.      The appeals  are accordingly dismissed. No costs. Since the Tribunal  has given  time to  constitute the  D.P.C. and finalise the  matter within 45 days, time is extended for 45 days from  today. It  is needless  to mention that all those found eligible are required to be appointed.