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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: MOHAN LAL CAPOOR & OTHERS

DATE OF JUDGMENT26/09/1973

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH MATHEW, KUTTYIL KURIEN

CITATION:  1974 AIR   87            1974 SCR  (1) 797  1973 SCC  (3) 836  CITATOR INFO :  R          1974 SC1898  (8)  R          1979 SC1596  (42)  R          1979 SC1622  (18)  R          1981 SC1915  (4)  R          1984 SC 160  (2)  F          1984 SC1543  (12)  E&R        1987 SC 593  (2,3,13,16,21)

ACT: I.A.S.II.P.S. (Appointment by Promotion) Regulations  1955-- Regulation  4(1),  5(1), 5(2), 5(4) & 5(5)--Effect  of  non- compliance with the mandatory duty imposed by Reg.  5(5)--If seniority  should  be dominant factor--Competence  of  State Government to pass reversion orders. Natural justice-Notice to superseded officers if necessary.-

HEADNOTE: Regulation 4(l) of the Indian Administrative  Service/Indian Police Service (Appointment by Promotion) Regulations,  1955 provides  for the 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 continuous service in  a post  of Deputy Collector/Deputy Superintendent  of  Police. Under reg. 5(i) the Committee has to prepare a list of  such members as satisfied 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  such  list  shall  be  based  on  merit   and suitability  in all respects with due regard to  seniority." Regulation 5(4) enjoins that the "List so prepared shall  be reviewed  or revised every year." Regulation 5(5) says  that "if  in the process of selection, review or revision  it  is proposed to supersede any member of the State Civil/  Police Service  the  Committee  shall record its  reasons  for  the proposed supersession." 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 I.A.S./I.P.S.  in 1961  and  1962 and since then they officiated  as  District Magistrates/Superintendents of Police for a number of years. The respondents who were eligible for promotion came on  the

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select   list  through  the  procedure  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  respondents 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.,  5(5) imposing a mandatory duty upon it to record  its reasons  for the proposed supersession (ii)  that  seniority should  be  the  dominant factor for  making  selection  for inclusion  in  the list to be prepared under reg.  5(l)  and that   merit   and  suitability  were  only   of   secondary importance; (iii) that the State Government had acted on the wrong  assumption  that it was competent to  pass  reversion orders; (iv) that since the aggrieved officers were punished in  the  sense  that they were dealt with  in  an  arbitrary fashion  each  of them should have been  supplied  with  the reasons for the supersession to enable them to make  written representation to the UPSC. Dismissing the appeal to this Court, HELD  :  per Beg J., Mathew J. concurring  :  The  mandatory provisions  of  reg. 5(5) were not complied  with.   It  was incumbent on the, Selection Committee to have stated reasons in  a  manner which would 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 remaining visible safeguard against possible  injustice and  arbitrariness in making selections.  If that  had  been done. facts on service records 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 was  applied to the subject 798 matter  for a decision whether it was purely  administrative orquasi-judicial.   They  should  reveal  a  rational  nexus between  the facts considered and the  conclusions  reached. Only  in  this way could opinions or decisions  recorded  be shown  to  be  manifestly just and reasonable.  It  was  not enough  to  say that preference should be  given  because  a certain  kind of process was gone through by  the  Selection Committee. [820 C-E] Associated  Electrical  Industries  (India)  Ltd.,  Calcutta v.Its Workmen A.I.R. 1967 S.C. 284 and Collector of  Monghyr JUDGMENT: referred to. Per  Mathew  J : The High Court was wrong  in   saying  that seniority was the determining factor and that 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 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  was  only when merit and suitability were roughly 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

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conclusion, seniority would tilt the scale.  The purpose  of an  annual revision or review was to make an  assessment  of the   merit  and  suitability  of  all  the  then   eligible candidates  and make a 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(l)  shall  be reviewed or revised every  year,  it  really meant  that  there must be an assessment of  the  merit  and 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 members  in  the  concerned service.  If  the  criteria  for selection  were  merit and suitability from  among  all  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 be on the basis of  merit and suitability among all the eligible members of the  State service.   There was no reason to give a go-bye to the  word "all" in reg. 4(1) as the High Court had done.  If merit and suitability  should determine the choice and that  seniority should become relevant only when merit and suitability  were roughly  equal, it was only proper that the fiell of  choice should  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. 5(3)  enjoined  that the names must thereafter  be  arranged according to their seniority in State service was a definite pointer that the selection must primarily be on the basis of merit and suitability.  The whole scheme 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 Rajasthan & anr. [1968] I S.C.R. it  and Mir Ghulam v. Union of India A.I.R. 1973 S.C.  1138, referred to. If  the State Government could make an appointment under  r. 9(2)  of the 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  enabling  power  lodged  in  the   Central Government to direct the termination of the appointment when a  report  had  been received did not mean  that  the  State Government was denuded of that power.  Rule 9(3) only showed that  when  a  report was made under  r.  9(2)  the  Central Government  had  power  to direct the  State  Government  to terminate  the appointment.  This would show that the  power to   terminate  the  appointment  rested  with   the   State Government otherwise, there was no reason for sub_r. (3)  of r.  9  to say that the Central Government might  direct  the State  Government  to terminate the appointment.   The  fact that  the State Government should terminate the  appointment when  the  Central Government made the direction to  do  so, could  be  considered only is vesting a power  to  make  the direction which it would not otherwise have but for the sub- rule.  It did not mean that the State Government 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 power of the  State  Government  as appointing  authority to terminate the appointment. [805  H; 806 A-C] 799 Inclusion of a name in the select list at best, could give a

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person  only  an inchoate right for appointment  during  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  the  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 selection  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 alteram, partem rule to  the  twilight zone  of  mere expectations, however, great they  might  be. [806 FG; 807 EF] Per Beg.  J : The correct view in conformity with the  plain meanings  of words used in the relevant rules was  that  the ’entrance’ or inclusion test 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 talent, from amongst  eligible candidates,  determined by reference to reasonable  criteria applied  in assessing the facts revealed by service  records of  all  eligible  candidates 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 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 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 list was thus chosen, the respective roles of seniority  and exceptional merit would be governed  by  reg. 5(3). [817 G-H; 818 AB] [His  Lordship did not consider it necessary to  decide  the questions  (i)  whether the State  Government  exceeded  its powers  in  reverting the respondents and (ii)  whether  the concepts of justice, fairplay and reason required an  oppor- tunity  being given to the respondents before  the  proposed supersession.]

& CIVIL 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 of 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 respondents Nos. 2, 3, 6 and 7 in C.A. No. 605/71). M.  C, Chagha, R. A. Gupta and J. P. Goyal,  for  respondent No. I (in C.A. Nos. 695 and 616/71) R.  A. Gupta and J. P. Goyal for respondent No. I  (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

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MATHEW,  J.  I  am in full  agreement  with  the  conclusion reached  by my learned brother and the reasons for  it.   In view of the importance of certain questions which arise  for consideration  in this case, I think it meet that  I  should express my views upon those questions. 800 The  first  question for consideration is whether  the  High Court was right in its interpretation of Regulation 5 (2) of the  Indian  Administrative, Service/lndian  Police  Service (Appointment  by Promotion) Regulations,  1955  (hereinafter called  the "Promotion Regulations") framed  under  sub-rule (1)  of rule 8 of the Indian Administrative  Service  Indian Police Service (Recruitment) Rules, 1954 (hereinafter called the  "Recruitment  Rules")  that  seniority  should  be  the dominanant factor for making selection for inclusion in  the list to be prepared under Regulation 5(l) and that merit and suitability are only of secondary importance.               Regulations   4   and  5  of   the   Promotion               Regulations read               "4(1)  Each Committee shall meet at  intervals               not exceeding one year and consider 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 Superintendent  of               Police.               (2)Notwithstanding anything contained in  sub-               regulation   (1),  the  Committee  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               considered  for inclusion in the fresh  select               list to be attained the age of 52 years.               5 (1). The Committee, shall prepare a list  of               such members of the State Civil/Police Service               a%   satisfy   the  condition   specified   in               regulation 4 and as are held by the  Committee               to  be suitable for promotion to the  service.               The   number   of   members   of   the   State               Civil/Police  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.               (2)  The selection for inclusion in such  list               shall be based on merit and suitability in all               respetcs 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/Police Service:               Provided  that any junior officer who  in  the               opinion  of  the Committee is  Of  exceptional               merit and suitability may be assigned a  place               in  the  list  higher than  that  of  officers                             senior to him.               (4) The list so prepared shall be reviewed and

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             revised every year. 801               (5) If in the process of selection, review  or               revision  it  is  proposed  to  supersede  any               member  of the State Civil Police Service  the               Committee  shall  record its reasons  for  the               proposed supersession-" Now,  under Regulation 4(l) it is the duty of the  Committee to  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  less  than eight  years’ of continuous service (whether officiating  or substantive)   in   a  post   of   Deputy   Collector/Deputy Superintendent of Police. Regulation 5(l) 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. And,  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  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 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  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  the  actual Sub-regulation ? As  I  said  Regulation 5(l) makes it  obligatory  that  the Committee  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  substantive vacancies  expected  to arise in the course of a  period  of twelve months from the date of the preparation of the  list. The  list  to prepared has to be sent to  the  Union  Public Service  Commission  under  Regulation  7(2)  by  the  State Government  along  with the records of the  members  of  the State  Civil/Police Service included in the list as well  as the  records of all the members of the State  Civil/  police Service   who   are  proposed  to  be  superseded   by   the recommendatation  made  in  the  list  and  the  reasons  as recorded by the Committee for 802 the  proposed  supersession  -by any  member  of  the  State Civil/Police  Service  and  the  observation  of  the  State

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Government   on   the  recommendation  of   the   Committee. Regulation 7 provides that the Commission shall consider the list  prepared  by  the,  Committee  along  with  the  other documents  received from the State Government and unless  it considers  any change necessary, approve the list.  And,  if the Commission considers it necessary to make any changes in the list received from the State Government, the  Commission shall  inform the State Government of the  changes  proposed and  after taking into 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. The  list as finally approved by the Commission  shall  form the  select  list of the members of the  State  Civil/Police Service. 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(l)  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/Police  Service included in the Select List, a special review of the  select 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 Service 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 all the then eligible candidates and make a fresh list of the  required  number of the most suitable  candidates  from among  them.   In  other words, the purpose  of  the  annual review  Or 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(2) 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 year, even if he has  passed the  age  of 52 years.  When Regulation 5(4) says  that  the list  prepared 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 list under Regulation  5(l) of such members of the State Civil/Police Service as satisfy the  condition  under Regulation 4 and as are  held  by  the Committee to be. suitable for promotion to he service  would be 803 discharged  only if the Committee makes the  selection  from all the eligible candidates every year. 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  Regulation 4(l). uses the word  ’all’  why  I should  not  give  effect to it.  I am  unable  to  see  the

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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(l) to be "loose or inaccurate" because inapt expressions  like  "the  fresh select list",  "the  list  so prepared"  have been used in the proviso to Regulation  4(2) and in regulation 5(4) respectively. Assuming for the moment that  these expressions are inapt in the context, I  do  not think  that a sufficient reason for disregarding the  effect of the word ’all’ in Regulation 4(l).  On the other hand,  I think  it would have been anomalous if the field  of  choice had not embraced 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  be selected for inclusion in the list is limited by  the number of vacancies expected to arise in the succeeding year a  sufficient  ground,  as the High Court  has  thought  for limiting the field of choice. Though  the words used in Regulation 5(4) are  ’review’  and ’revisions  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.  If the criteria for selection are merit and suitability from  among all  the eligible members, then the field of selection  must comprise  of the entire category of eligible 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 will 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. Mr. Chagla, appearing for one of the respondents,  contended that there is a distinction between promotion and selection. He said that under 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 counsel, though merit and suitability would  be, the criteria for selection from, the open  market for  the remaining 75 per cent, for promotion 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  understand  the logic of  the  distinction  when considering the meaning to be 804 put  upon Regulation 5 (2). it is true that 25 per  cent  of the Posts are reserved for being filled by promotion and the rest by selection, but, what follows?  Is it necessary  that promotion  should  be on the basis of seniority  subject  to fitness  and not on the basis of merit and suitability  with due regard to seniority.  The very idiea of a selection from all  the  eligible  candidates on the  basis  of  merit  and suitability  with due regard to seniority  under  Regulation 5(2)  is  to find out the members who are  suitable  to  be. promoted  for filling the 25 per cent quota reserved to  the

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two  State services.  The mere fact that the word  promotion is  used  in  rule, 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. Regulation   5(5)  provides  that  if  in  the  process   of selection,  review or revision it is proposed to  supersede, any member of the state Civil/ Police Service, the Committee shall record its reasons for the proposed supersession. Regulation 5(3) says that the names of the officers included in  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.   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) enjoins 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  merit is given preferential treatment,  as  the proviso  says  that a junior officer who is  of  exceptional merit  and suitability must be assigned a place in the  list higher  than  that of officers senior to him.   This  is  an unmistakable indication to show that the whole scheme of the Regulation  is to give. preferential treatment to merit  and suitability. In Sant Ram Sharma v. State of Rajasthan and Another(1) this Court said that it is a well established rule that promotion to  selection  grades  or selection posts  is  to  be  based primarily  on  merit  and  not On  seniority  and  that  the principle  is that when the claim of officers  to  selection posts  is  under  consideration,  seniority  should  not  be regarded except where the merit of the officers is judged to be  equal  and no other criterion  is  therefore  available. These observations were relied on in N. P. Mathur and Others v. State of Bihar and Others(2) for understanding the  scope of  the rule under consideration in that case which  ran  as follows:               "Appointment  to  the Selection Grade  and  to               posts carrying pay above the time scale of pay                             in the Administrative Service shall be  made  by               selection   on   merit  wit  due   regard   to               seniority." (Rule  3(2-A)  of the Indian  Administrative  Service  (Pay) Rules. 1954) (1) [1968 [1 S, C. R. 111, at 118. (2) A. I. R. 1972 Patna 93. 805 The Court said:               "It  is agreed on all hands that the  post  of               Chief  Secretary is a selection post from  the               officers in the super-time scale of pay and it               is  also agreed that rule 3 (2-A) of  the  Pay               Rules applies.  In those circumstances, it  is               clear  that  selection to the  post  of  Chief               Secretary  will depend on merit,  irrespective               of  seniority.  In my opinion,  the  principle               laid  down by their Lordships of  the  Supreme               Court  in Sant Ram Sharma’s case (AIR 1967  SC               1910) makes this position clear". In  Mir  Ghulam  v. Union of India(IJI)  this  question  was

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incidentally  considered  that  it  would  appear  from  the observations  in  the judgment that the preparation  of  the list under Regulation 5(l) must primarily be on the basis of merit  and  suitability, seniority, being only  one  of  the relevant considerations in making the selection. 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(l)  A  cadre post may be filled by 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 months; 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  together  with   the               reasons for making the appointment.               (3)  On receipt of a report under  Sub-rule(2)               or   otherwise,  the  Central   Government-may               direct   that  the  State   Government   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 Central Government only. If  the State Government can make an appointment under  rule 9(2)  of the Cadre Rules, there is no reason why  it  cannot terminate   it.   The  normal  rule  is  that  a  power   of appointment  carries  with  it the power  to  terminate  the appointment  unless  there is an express  provision  to  the contrary.  The enabling power lodged in the Central (1) A. I. R. 1973 SC 1138. 806 Government to direct the termination of the appointment when a  report  has been received does not mean  that  the  State Government  is denuded of that power.  Rule 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 terminate  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 Central Government may   direct   the  State  Government   to   terminate   the appointment.   The sub-rule could very well have  said  that the  Central Government may terminate the appointment.   The fact   that  the  State  Government  should  terminate   the appointment when the Central 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 would lose its power to terminate the appointment if the  Central- Government  does not make a direction.  In other words,  the vesting  of  the power in the Central Government to  give  a binding direction does not take away the power of the  State

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Government   as  appointing  authority  to   terminate   the appointment.  In the light of our conclusion, I do not think it necessary to express any opinion on the question  whether the removal of the names of the respondents from the  select list of 1968 was per se sufficient for the State  Government to  terminate their officiating "appointment" to  the  Cadre posts. It  was contended on behalf of respondents that before  they were  superseded, notice should have been given to them  and their  explanation  asked for 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  cause  why his name should not be removed  and  unless that  is  done,  the decision to remove his  name  from  the select list would be bad.  I  am not impressed by the argument that rifles 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  ointment during the year when the select list would be current.  When that  period is over, he has no right to be included in  the select  list for the next year.  He has only a right  to  be considered for in clusion in it.  In other words,  inclusion of  a  person’s name in 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 already stated, a  fresh list will have to, be prepared for  the  succeeding year after considering 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 expression "supersession" can mean only passing over the claim  of  a  senior  according to  the  State  service  for inclusion in the list, for, ex hypothesi, no previous select list exists.  In that context, the word " supersession"  can denote only the selection of a junior in preference 807 to  a senior according to their rank in the  State  service. There  is  no  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 name of a person whose name appeared in  the previous  list from the subsequent list or his  demotion  in 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   mean overlooking the seniority in the State service for inclusion in   the  list.   I  should  have  thought  the   expression "supersession"  in  the context is quite inapt,  as  it  has overtones   that  seniority  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 question 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 Whatever that be, I do not think that in making selection or in  reviewing or revising the select list, as a  fresh  list has to be prepared on the basis of merit and suitability  of

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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 right is involved; no interest recognised 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 seniority, 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  and 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 extend 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 and  four by the State and the Chief Secretary to the  Govt. of  Uttar  Pradesh are directed against  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  Singh  Seth and  the  other by Basant Kumar Joshi.  As  all  the  cases, resting  upon similar facts, raised common questions of  law they  were  heard  together  and disposed  of  by  a  common judgment   which  has  come  up  before  us  on   grant   of certificates of fitness of the 808 cases by the Allahabad High Court under Article 133 (1)  (c) of the Constitution of India for appeal to this Court. M.  L. Capoor ad K. N. Misra have been members of  the  U.P. State  Police Service who were brought on a select list  for promotion  to  the Indian Police Service in  1961  and  1962 since  when  they officiated on cadre posts  of  the  Indian Police Service as Superintendents of Police for a number of, years.   They were eligible to be considered  for  promotion under Regulation 4 of Indian Police Service (Appointment  by Promotion)  Regulations, 1955, and came on the  select  list through  the procedure for selection by a  Select  Committee confirmed  by  the  Union 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  the  select list until the list for 1968 was prepared in December, 1967, when   they   were   suddenly  dropped   from   this   list. Consequently,  they  filed petitions under Art. 226  of  the Constitution in the Allahabad High Court for quashing orders of alleged reversion.  These Writ.  Petitions were  referred to  a  Division Bench which decided them  with  the  special appeals  of  Ganesh  Singh  Seth  and  Basant  Kumar   Joshi involving the same questions of law on similar facts. Ganesh  Singh Seth and Basant Kumar Joshi have been  members of the U.P. Civil (Executive Service).  They were brought on the select list of the Indian Administrative Service in 1961 and   1962,  under  Regulations  4  to  7  of   the   Indian Administrative    Service   (Appointment    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  having continued in that list since  1961  and 1962.   They had filed Writ Petitions against their  alleged reversions  which were dismissed by a learned Judge  of  the Allahabad  High Court on 23-5-1968.  Their  special  appeals

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were heard by a Division Bench with Writ Petitions of M.  L. Capoor and K. N. Misra, because, as already observed, common questions of law were involved.  These appeals were  allowed by the common judgment now under appeal before us. The  Division  Bench  had quashed the select  lists  of  the Indian Administrative Service and the Indian Police  Service for the year 1968 and the orders reverting the four officers concerned to their substantive posts in the State  Services. For considering the questions of law raised before us it  is enough  to  set out the relevant regulations of  the  Indian Administrative  Service.   The  only  material   differences between the two otherwise identical sets of regulations  are that different appellations-e.g. ’civil service" and "police service" are used in respective regulations for  recruitment 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 with there.  Our interpretation of one set of the  relevant  parts  of  regulations  will,  therefore,  be equally  applicable to the corresponding provisions  of  the other set. 809 Regulations 4 to 9, to the extent they are relevant for  the arguments advanced before us, read as follows :               "4. Conditions of Eligibility for  promotion.-               (I)  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.               Explanation. xxx         xxx,             xxx               (2)  Notwithstanding  any thing  contained  in               sub-regulation  (1), the Committee  shall  not               ordinarily  consider the cases of the  members               of  the State Civil Service who have  attained               the  age  of  52 years on  the  first  day  of               January  of the year in which meeting  of  the               Committee is held               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.-(I).  The Committee shall prepare  a               list  of  such  members  of  the  State  Civil               Service as satisfy the condition specified  in               regulation 4 and as are held by the  Committee               to  be suitable for promotion to the  service.               The  number  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 pos ts  borne

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             on  the cadre of the State or group of  States               whichever is greater :               Provided that, in the year ending on the  31st               December, 1969, the, maximum limit, imposed by               this  sub-regulation, may be exceeded to  such               extent  as  may be determined by  the  Central               Government  in  consultation  with  the  State               Government concerned.               (2)  The selection for inclusion in such  list               shall be based 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 on               of  the Committee is of exceptional merit  and               suitability  may  be assigned a place  in  the               list  higher than that of officers  senior  to               him. 810               (4) The list so prepared shall be reviewed and               revised every year.               (5) If in the process of selection, review  or               revision  it  is  proposed  to  supersede  any               member   of  the  State  Civil  Service,   the               Committee  shall  record its reasons  for  the               proposed supersession.               6. Consultation with the Commission.-The  list               prepared in accordance with regulation 5 shall               then  be  forwarded to the Commission  by  the               State Government along, with-               (i)  The records of all members of  the  State               Civil Service included in the list;               (ii)  the record of all members of  the  State               Civil   Service   who  are  proposed   to   be               superseded by the recommendations made in  the               list;               (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.-(l)  The  Commission   shall               consider  the list prepared by  the  Committee               along  with the other documents 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 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.               (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 sub-regulation(l), or, as  the               case  may  be,  finally  approved  under  sub-               regulation (2)               Provided that in the event of a grave lapse in

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             the  conduct or performance of duties  on  the               part of any member of the State Civil  Service               included in the Select List, a special  review               of the Select List may be made at any time  at               the  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 811               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               Government shall follow the order in which the               names  of such officers appear in  the  Select               List :               Provided that where administrative  exigencies               so  require,  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  which               the  names  of  members  of  the  State  Civil               Service appear in the Select List for the time               being in force.               (2)  It shall not ordinarily be  necessary  to               consult    the    Commission    before    such               appointments  are  made,  unless  during   the               period  intervening between the  inclusion  of               the  name  of  a member  of  the  State  Civil               Service in the Select List and the date of the               proposed   appointment   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". Before  interpreting  these  Regulations  two  more   common features of the cases before us may be mentioned.   Firstly, in each of the four cases, a number 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 Kumar  Joshi),  who were 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 Commission  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

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Select Committee as follows:               "On  an  over all assessment, the  records  of               these  officers  are not such  as  to  justify                             their appointment to the Indian  Admin istrative               Service/Indian Police Service at this stage in               preference to those Selected." 812 Each   purported   statement  of   reasons   mentioned   the appropriate  service (i.e. either administrative  or  police service) as the case may be. The  question  we may, first consider,  from  amongst  those argued  before us, is whether the function of the  Selection Committee  in  preparing  the  list,  which  could   involve proposals  for supersession, is purely administrative or  is quasi-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 of 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 Select 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  records  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 process of litigation, where two or more parties, who prefer claims to the same subject  matter, 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 giving  each  the results  of  assessments of merits 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 their own merits and of others.  The "Cult of the  Ouasi", as it has been derisively 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 against 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 records   are  examined.   The  process  of   selection   by evaluation of respective records of service is more akin  to that  of  an examination’ of candidates than to  any  quasi- judicial proceeding. Prof.    S.  A.  de  Smith  in  his  "Judicial   Review   of Administrative  Action"  (2nd Edn-p. 64 to 76) has  given  a number   of   useful  tests   for   distinguishing   between administrative and judical actions.  These may be summarised as follows: firtsly, whether the performance of the function terminates in an order which has a conclusive effect or  the force   of   law  or  is  merely   advisory,   deliberative, investigatory, Or conciliatory in character which has to  be confirmed  by another authority before acquiring  a  binding

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force,;  secondly,  whither there are  prescribe  procedural attributes of the proceeding such as its 813 invitation by, a party opposed to another, so that there  is a  lis  or  dispute  a public  hearing  a  power  to  compel attendance  of witnesses. prescribed rules of  evidence  and modes  of  relief;  thirdly, whether  the  decision  imposes obligations by defining, conferring, varying,  extinguishing or recognising rights and liabilities; and fourthly  whether the  function  involves application  of  objective  criteria defined by law, to impartially ascertained acts or is merely the exercise of a subjective power to act without  reference to  justiciable standards.  Cases where valuable  rights  of individuals  are  affected by  decisions  of  administrative authorities,  even  in the course of carrying out  a  scheme embodying 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 there was no "lis"  between eligible  candidates, in the legally accepted sense  of  the term, there could be no question of a quasijudicial function either  when  a  select list was prepared  or  when  it  was reviewed  or  revised  in such a way as  to  supersede  some eligible  candidate.  The learned Judge held that the  words "review" and "revision" were used in Regulation 5(4) and (5) in  a nontechnical broad sense of annual fresh  preparations of  the lists.  According to the learned Judge,  the  second test  mentioned  above, that of a "lis", was  lacking  here. The  Division Bench had also held that the function  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 quasijudicial action.  Both these  grounds  for distinguishing  the  process undergone  from  quasi-judicial action are sound. It  was  urged that the Division Bench had  over-looked  the effect of Regulation 7, sub-Regs.(3) and (4) which made  the list  final when approved by the Commission and that it  was to remain in force until it was reviewed and then revised by another finally approved list.  Hence, it was contended,  on behalf  of  the,  Respondents, that  the  function  acquired attributes  of  a quasi-judicial action at  least  when  the matter was 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  under Regulation  5.  sub-reg.  (5)  in  support  of  a   proposed supersession.  Reliance was placed, for advancing ’this pro- position, on cases dealing with general principles on  which a  duty  to act quasi-judicially is inferred.  They  were  : State  of  Punjab Vs.  K. R. Erry &  Sobhag  Rai  Methta(3); Madan  Gopal.  Agarwal vs.  District Magistrate Allahabad  & Ors.,(2) P. L. Lakhanpal vs.  The Union of (2) AIR 1972 SC 2656. (1) AIR 1973 SC 834. 814 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 subject was reviewed; Unikant Sankunni Menon Vs.  the  State of Rajasthan(2); State of  Orissa  Vs.   Dr. (Miss)  Binapaani  Dei & Ors.(3); Shri Bhagwan &  Anr.   Vs. Ram  Chand  &  Anr.(4); Board of  High  School  Intermediate

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Education,  U.P.  Allahabad  Vs.   Ghanshyam  Das  Gupta   & Ors.(5); Shivaji Nathubhai Vs. the Union of India & OrS.(6); A.   K, Kraipak & Ors. etc.  Vs.  Union of India & Ors.  (7) ;  Karunakaran (K. K.) Vs.  Director, Bureau of Economics  & Statistics & Ors.(8); Malloch Vs.  Aberdeen Corporation.(9) In  some  of the cases mentioned above, decided  on  general principles.   the  exercise  of  powers  of   "Review"   and "Revision"  has  been  considered  and  held  to  be  quasi- judicial.  It will be noticed that, out of these cases, only Kraipak’s  -case (supra) had dealt with the functions  of  a Selection Board which, though held to be administrative, had 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 suspicion of bias on the part of an examiner has  to be eliminated.  In other words, all such evaluations have to be  so made as to be above suspicion of unfairness  or  bias although they do not require a quasi-judicial proceeding  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  arty  right except  to  remain  on the 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 no quasi-judicial proceeding could be demanded  to defend  a  right  which did not exist or  was  so  fluid  or transitory in character.  It was urged that. as the criteria for  being  placed  on  the  selection  list  were  entirely subjective,  no  candidate could claim a right to  have  his merits  assessed  every year by applying the  same  uniform, invariable, objective tests. The Solicitor-General relied on cases where it had been held that  appointment  to selection posts was not  a  matter  of right.  These were : Sant  Ram Sharma Vs.  State of Rajasthan &  Anr.(1O);  Guman Singh  &  Ors.   Vs.  State of Rajasthan &  Ors.  (11);  Mir Ghulam Hussan & Ors.  Vs.the Union of India & Ors.(12).  The Divisional  Personnel Officer, Southern Railway, Mysore  Vs. S. Raghavendrachar;(13) N. P. Mathur &, Ors.  Vs.  State  of Bihar & Ors.(14) (1)  [1967](3) SCR 114 at 120. (2)   [1967] (3) SCR 430. (3)  [1967] (2) SCR 625. (4)   [1965) (3) SCR 218. (5)   [1965] Suppl (3) SCR 36. (6)   [1960] (2) SCR 775. (7)  [1970] (1) SCR 457. (8)   [1966](2) LLJ 221. (9)   [1971] (1) Weekly Law Reports (10)  [1968] (1)SCR 111,1578. 114 & 118. (11)  [1971] (2) SCC 452. (12)  AIR 1973 SC 1138. (13) [1966] (3) SCR 109. (14)  AIR 1972 Patna (FB) 93, 815 Learned Counsel for the Respondents tried to distinguish 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  cases  of "promotion" to posts which have to take place in  accordance with  certain rules which gave seniority  "due"  importance. It  was contended that in matters of promotion according  to

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rules,  which laid down the criteria for selection so as  to be  promoted to higher -cadre posts, every candidate  had  a right to insist that proper tests were employed.   According to  the Respondents, these criteria were objective  and  the most  important objective fact, in assessing  merits,  could only  be  seniority for which "due regard"  was  imperative. The others were also capable of being 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  Selection 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, and revision of the  final list  that is to say, whether they be purely  administrative 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  exceed  its powers by misapprenhending  their  meaning, their  legal  scope, and their Purpose.  They could  not  be used to defeat the purPose of the powers conferred.  We may, therefore, now examine this crucial question. It  is  true that learned Single Judge in dealing  with  two Writ Petitions 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 exercised 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" mentioned in the proviso to clause (3) of Regulation 5. It is submitted by the appellants that, in doing 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 practically 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 differently from different angles, or, by  applications of varying tests of it by diferent persons, or, by the  same persons, at different times.  It was submitted on behalf  of the  respondents that to make supposed merit 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 816 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

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             higher positions, while maintaining the morale               of the whole Organisation.  The main  interest               to  be served is the public interest, not  the               personal  interest of members of the  official               group concerned.  The public interest is  best               secured  when  reasonable  opportunities   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 recruitment.                 .........               Employees often prefer the rule of  seniority,               by  which the, eligible longest in service  is               automatically  awarded the promotion.   Within               limits, seniority is entitled to consideration               as  one criterion of selection.  It  tends  to                             eliminate favouritism or the suspicion  thereof;               and  experience is certainly a factor  in  the               making  of, 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 seniority is made the  sole               determining  factor,  at any level,  it  is  a               dangerous guide.  It does not follow that  the               employee  longest in service in  a  particular               grade is best suited for promotion 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 operated  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 promotion, the powers  of selection  become wider, and, they can be abused  with  less difficulty.  But, the machinery provided for preparation  of select  lists for promotion to All India Services, so as  to ensure  impartiality, cannot be assumed to so operate as  to produce  unjust results.  The wider the powers entrusted  to an   administrative  authority,  the  more  should  be   the consciousness  of responsibility on its part for  their  due discharge  fairly and impartially.  The presumption is  that the authority concerned will discharge its obligations  with full realization of its implications and honestly.  We have, however, 817 to  determine here whether the, Selection Committee and  the Union Public Service Commission performed their functions 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

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Regulation  4 operated as test operating at the out-set  for inclusion in the list of eligible persons.  Furthermore,  it 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  minimum standard  of individual merit and suitability for  inclusion in the list, comparable to pass marks at an examination,  in which  seniority  played the dominant role,  seniority  also determined  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  Regulation  5  (2), considered by itself, does not lead to this conclusion,  Re- gulation  5(3)  would, perhaps to some extent,  support  the reasoning  of the Division Bench. if a comparative  test  of merit  is  to be applied throughout to  all  candidates,  by comparing  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 Regulation 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 minimum  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. Thus, we think that the correct view, in conformity with 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  unrestricted choice  of the best available talent, from amongst  eligible candidates.  determined by reference to reasonable  criteria applied  in assessing the facts revealed by service  records of  all  eligible  candidates so that  merit  and  not  mere seniority is the governing_ factor.  A simple 818 reading  of. the Regulation 5 (2) clearly indicates this  to be  the  correct view.  The required number 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,  should  be. There  could be a certain number of in marks  allotted,  for purposes  of  facilitating  evaluation,  to  each  year   of experience,  gained  in  the, service.   When  the  required number for the list is thus chosen, the respective roles  of seniority  and  exceptional  merit  would  be  governed   by

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Regulation   5(3).    This   seems   to   be   the   correct interpretation of rules as they stand. 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  review  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 fall in the assessment 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 process itself was really administrative.   On the  view taken by the Division 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".  ’Me  rule indicates that "supersession" here only means the preference given  to juniors over the "superseded" officer for a  place on  the select list.  The superseded 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 supersession  would appear to be penal, and, therefore, involve compliance  with minimal  requirements of natural justice, atleast so far  as communication of reasons for a proposed supersession to  the officer  proposed to be superseded is concerned, before  the approval  of  the Union Public  Service  Commission,  which, according  to  Regulation  7  (3),  makes  the  list  final. Logically,  if  the  view taken by  the  Division  Bench  is correct,  that  the  aggrieved  officers  were,  apparently, punished  in  the  sense that they were  dealt  with  in  an arbitrary fashion, each should 819 have  been  atleast  supplied  with  the  reasons  for   the assessment  involving his supersession, after the  Selection Committee had decided to recommend the supersession, so that he  could make written representations 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  natural  justice  to  a  case   of "selection" is warranted by authorities as 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  Public Service Commission does not involve observance of the  "audi

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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, without 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 functioning  administratively  may have to  observe  certain minimal  rules  of reason, justice, and fair play.   It  has been repeatedly pointed out that the extent of hearing 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 of 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 by 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 of  concepts of justice, fairplay, and reason, in the  realm of  administrative law, particularly as the cases before  us can  be  decided  on the next question on  which  our  views coincide. We next turn to the provisions of Regulation 5(5) imposing a mandatory  duty upon the Selection Committee 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 820 that  could  be said for the stock reason is that  it  is  a general description 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 context of the effect upon the rights  of  aggrieved persons, as members of a public service who are entitled  to just  and  reasonable treatment, by  reason  of  protections conferred   upon  them  by  Articles  14  and  16   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  each  officer superseded stood  in  relation  to records of others who were to be preferred, particularly  as this  is practically the only remaining  -visible  safeguard against  possible  injustice  and  arbitrariness  in  making selections.  If that had been done, facts on service records

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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-judicial.  They  should reveal a rational nexus between the facts considered and the conclusions  reached.  -Only  in this way  can  opinions  or decisions  recorded  be  shown to  be  manifestly  just  and reasonable.   We  think 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  all 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  reliance  was rightly placed by respondents on two decisions of this Court relating to the effect of noncompliance 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 Goenka &  Ors. (2) 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 had itself not considered the question of  the fitness  of the aggrieved officers, had acted on  the  wrong assumption that it was bound to pass reversion orders simply because  the names of the officers concerned bad  ceased  to find a place on the select list. The powers of the State Govt. to act under Regulations 8 and 9 are limited.  It has to report under Regulation 9(2),  set out  above, which corresponds with Rule 9(2), of the  Indian Administrative  Service (Cadre) Rules, 1954, to the  Central Govt. with reasons for making (1) AIR 1967 SC 284. (2) [1963] (I) SCR 98. 821 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 to the Indian Administrative Service, (Fixation  of Cadre  Strength) Regulations, 1955.  It is true that  it  is the, Central Govt. alone which can direct the termination of service  under  Regulation 9, as the Central  Government  is ordinarily  the appointing authority.  The State  Govt.  has powers, conferred by Rule 8, of making appointments only  in certain contingencies.  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.

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                            Appeals dismissed. 822