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CASE NO.: Appeal (civil)  782 of 2007

PETITIONER: Union Public Service Commission

RESPONDENT: S. Thiagarajan & Ors

DATE OF JUDGMENT: 15/02/2007

BENCH: S.B. SINHA & Markandey Katju

JUDGMENT: J U D G M E N T [Arising out of Special Leave Petition (Civil) No. 7652 of 2006]

MARKANDEY KATJU, J.

       Leave granted.

       This appeal has been filed against the impugned  judgment of the Madras High Court dated 23.12.2005 in  Writ Petition No.30223 of 2002.          Heard learned counsel for the parties and perused the  record.

       The first respondent was recruited as Forest Ranger  and was promoted as Assistant Conservator of forest on  12.7.1982 and he was further promoted as Deputy  Conservator of Forest on 20.9.1996.  He was eligible for  inclusion in the select list for promotion to the Indian Forest  Service.  Since his name was not included in the select list,  he made a representation and that representation was  rejected.  Against this rejection the first respondent filed an  O.A. before the Central Administrative Tribunal, which  allowed the said application.          The contentions of the first respondent before the said  Tribunal were: (a)     Even though he was fully qualified and  eligible for inclusion of his name in the select  list for the year 1998, his name was not  considered and included in the said year.

(b)     Though there were six vacancies, only  two officers were selected.

(c)     As far as the selection of one Mr. K.S.  Krishnan is concerned, he had already  crossed the age limit of 54 years, yet his  name was included in the select list for the  year 1998 and no valid reasons have been  assigned by the authority concerned for the  same.

(d)     The selection committee selected two  officers of the State Cadre against whom  vigilance enquiry were already pending.

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       The Tribunal, after careful consideration of the  contentions of both the sides, allowed the O.A. in favour of  the first respondent, and passed the following order in  favour of the first respondent: "(a)    The impugned order dated 24.1.2000 is  quashed.

(b)     The official respondents are directed to  consider the case of the applicant by  constituting a review DPC for inclusion in the  select list and appointment of IFS.  This  exercise shall be completed within three  months of receipt of a copy of this order by  the official respondents."

       Against the aforesaid order of the Tribunal dated  17.4.2002, the appellant Union Public Service Commission  filed an appeal before the High Court.  It was contended by  the appellant before the High Court that there were only four  vacancies available for consideration by the Selection  Committee and not six.  Hence it was contended that the  Selection Committee which met on 16.9.1998 included only  four officers in the select list for 1998 as the available  vacancies for Tamil Nadu at that time were only four.

       As far as inclusion of Shri K.S. Krishnan for the post of  IFS officer for the year 1998 was concerned, even though  the said officer had completed 54 years on 3.5.1997, his  case was considered by the selection committee as per the  second proviso to Sub-Regulation (3) of Regulation 5 of the  IFS (Appointment by Promotion) Regulations, 1966.

       With regard to the inclusion of 2 officers in the select  list, who were facing Vigilance Enquiry, the names of such  officers were included in terms of the proviso to Sub- Regulation (4) of Regulation 5 of Indian Forest Service  (Appointment by Promotion) Regulations, 1966.

       The High court, however, agreed with the view taken  by the Tribunal and dismissed the writ petition.  Hence this  appeal.

       In our opinion both the High Court and the Tribunal  overlooked the fact that the selection of State Forest  Services officers for promotion to the IFS are governed by  the IFS (Appointment by Promotion) Regulations, 1966,  which are statutory in nature.  They did not also take into  account the fact that the IFS Promotion Regulations were  amended vide notification dated 31.12.1997 effective from  1.1.1998 bringing about certain changes.  There was a  transition period between April 1997 to December i.e.  between the ceasing of the effect of the old Regulations and  taking effect of the new Regulations for which specific orders  dated 27.2.1998 and 14.9.1998 were issued by the  Government of India to safeguard the interest of those  officers who would otherwise have been adversely affected  because of the said transition.   

We find that the appellant conducted the selections  strictly in accordance with the statutory regulations and  orders issued by the Government of India, and hence there  was neither any infirmity nor arbitrariness involved in the  selection, nor was the procedure adopted by the Selection

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Authority dubious and questionable as held by the High  Court.            As regards the question whether there were six  vacancies or four, the High Court and the Tribunal did not  take into account the fact that the IFS Promotion  Regulations and IFS (Fixation of Cadre Strength) Regulations  were amended by the notification dated 31.12.1997 which  came into effect from 1.1.1998.  The Government of India  vide letter dated 27.2.1998 laid down the follow up action to  be taken in view of the amendment dated 31.12.1997, the  relevant part of which is as follows: "It has been decided that the increase in  promotion posts sanctioned under notification  No.11033/15/95-AIS(II)-C, dated the 31st  December, 1997, in respect of the Indian  Forest Service Cadres are to be given effect  in a phased manner.  The recruitment to the  promotion posts when made in each cadre  during the year may be limited to the  promotion posts as on 31.12.1997 plus one  third of the net increase in the promotion  posts as on 1.1.1998, ignoring the fractions,  if any.  Similarly, the recruitment in 1999 will  be enhanced by half of the balance increase,  ignoring the fractions, if any and the  remaining increase will be added to the  recruitment in the year 2000.  The immediate  charge on the increase in the promotion  posts in the respective State Cadres will be  the persons who stand included in the  waitlisted part of Select Lists prepared in  1997 and in force.  The waitlisted officers  could accordingly be considered for  promotion to the IFS against the vacancies  made available from 1.1.1998 in the first  instance."

       The Select List prepared in 1997 was for the year  1996-97 and it was in force till the meeting of the Selection  Committee held on 16.9.1998.  S/Sh.B. Venkataraman and  M. Samuel Moses were the waitlisted officers in the said  Select List.  These two officers were appointed to the IFS by  the Government of India vide notification dated 10.9.1998 in  pursuance to the aforesaid letter dated 27.2.1998.  Thus two  of the six vacancies indicated by the State Government in  their letter dated 6.7.1998 were utilized before the meeting  of the Selection Committee on 16.9.1998.          The Tribunal, while reaching to the conclusion that the  proposal to select six officers had been reduced to four in an  arbitrary manner without assigning any reason, placed  reliance on the State Government’s notes for the Selection  Committee indicating that there were six vacancies to be  filled up.  The State Government’s letter dated 2.9.1998  indicating that two of the said six vacancies are to be filled  up in terms of Government of India, Ministry of Environment  & Forests letter dated 27.2.1998 and only four vacancies  would remain vacant thereafter for the year 1998 was not at  all taken into account by the Tribunal.  This has been  confirmed by the Government of India in paras 5 to 8 of the  reply filed by them in the writ petition filed before the High  Court.  As per the amendment dated 31.12.1997 to the IFS  (Appointment by Promotion) Regulations, 1966, the size of

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the select list is equal to the number of vacancies available.   In the instant case, the Selection Committee was informed  that there were four vacancies in the promotion quota of  Tamil Nadu cadre for the select list of 1998.  Therefore, the  committee took into account four vacancies and prepared a  select list of four officers.

       As regards the inclusion of Sh.K.S. Krishnan in the  select list of 1998, since the definition of the word ’year’  underwent a change after the amendment of the  Regulations, there was a transition period between the  ceasing of the effect of the old Regulations and the coming  into effect of the amended Regulations.  Under the pre- amended Regulations, select lists were to be prepared on a  financial year basis whereas after the amendment, select  lists were to be prepared on a calendar year basis.  In view  of this, after preparation of the selection list of 1996-97, the  next selection list would be for the year 1998.  As such,  there would not be any select list prepared for the period  April, 1997 to December, 1997.  In order to safeguard the  interest of those officers who would thus be adversely  affected by the transition period from April, 1997 to  December, 1997 during which no select list would be  prepared, the Government of India issued special  instructions vide letter dated 14.9.1998.        

       The said letter of the Government of India dated  14.9.1998 was issued by way of clarification regarding the  applicability of Regulation 5(3) of the Promotion Regulations  in the context of the amendments dated 31.12.1997 to the  IAS/IPS/IFS Promotion Regulations.  The relevant part of the  said letter is reproduced here: "It is observed that in terms of the amended  Regulations, 1st January, 1998 is the crucial  date by which the eligibility criteria for  consideration of the State Service Officers for  consideration by the Selection Committee are  required to be satisfied.  In terms of  Regulation 5(3), as amended, a State Civil  Service Officer who has crossed 54 years  between 1st April, 1997 and 31st December,  1997 and hence above 54 years as on the 1st  January of the 1998 is not eligible to be  considered by the 1998 selection committee,  though he would have been eligible to be  considered by the 1997-98 selection  committee scheduled to meet by March,  1998, had the Regulations not been  amended.

The matter has been carefully considered.  It  is observed that in terms of the second  proviso to Regulation 5(3) of the IAS  (Appointment by Promotion) Regulations,  1955, those officers who had crossed 54  years of age on the crucial date and who  were not considered in the year immediately  preceding the year in which the meeting of  the Committee is held are entitled to be  considered by the committee in addition to  the normal zone of consideration placed  before the committee.  The 1997-98 select  list in terms of the Promotion Regulations  existed as a legal fiction upto the 31st  December, 1997 and it ceased to exist with

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the coming into force of the IAS  (Appointment by Promotion) Second  Amendment Regulations, 1997, w.e.f.  1.1.1998.  In all the cases, where the  Selection Committee for 1997-98 did not  meet during the period from 1.4.1997 to  31.12.1997, it has to be construed that the  Selection Committee for immediately  preceding year did not meet and those  officers crossing the age of 54 years during  this year allowed the benefit of consideration  by the 1998 Selection Committee as and  when it meets in terms of the second proviso  to sub-Regulation 3 of Regulation 5 of the  amended Regulations."

       Shri Krishnan who was confirmed on 19.1.1998 with  retrospective effect from 1.6.1996 was entitled to be  considered by the Selection Committee in addition to the  normal zone of consideration in terms of the second proviso  to Regulation 5(3) of the IFS (Appointment by Promotion)  Regulations, 1966 as clarified by the Government of India,  Department of Personnel & Training vide their letter dated  14.9.1998.  This letter was issued by the Government of  India especially in the context of the amendment dated  31.12.1997 to the IAS/IPS/IFS (Appointment by Promotion)  Regulations in order to safeguard the interests of those  officers who would be adversely affected by the transition  period from April, 1997 to December, 1997 for which period  no select list was to be prepared.

       As regards the inclusion of tainted officers in the select  list of 1998, in our opinion the High Court and Tribunal did  not notice that provisional inclusion of these officers in the  select list was done as per the express provision of the  Promotion Regulations i.e. Regulation 5(4) which is as  follows: "The list shall be prepared by including the  required number of names first from  amongst the officers finally classified as  ’outstanding’ then from amongst those  similarly classified as ’Very Good’ and  thereafter from amongst those similarly  classified as ’Good’ and the order of names  inter-se within each category shall be in the  order of their seniority in the State Forest  Service.

Provided that the name of an officer so  included in the list shall be treated as  provisional if the State Government withholds  the integrity certificate in respect of such an  officer or any proceedings, departmental or  criminal are pending against him or anything  adverse against him which renders him  unsuitable for appointment to the service has  come to the notice of the State Government.

Explanation I:  The proceedings shall be  treated as pending only if a charge-sheet has  actually been issued to the officer or filed in a  court as the case may be.

Explanation II: The adverse thing which came

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to the notice of the State Government  rendering his unsuitable for appointment to  the service shall be treated as having come  to the notice of the State only if the details of  the same have been communicated to the  Central Government is satisfied that the  details furnished by the State Government  have a bearing on the suitability of the  officers and investigation thereof is  essential."

       Thus, if an officer against whom disciplinary  proceedings are pending is considered by the Selection  Committee, his name is included in the select list  provisionally, if he is otherwise found suitable for inclusion.   He cannot be appointed to the IFS till his inclusion is  declared as unconditional and final by the UPSC.  In the  instant case Shri Shenabagamurthy and T. Srinivasan were  included provisionally in the select list of 1998 subject to  their clearance in the pending disciplinary cases as such  inclusion was in consonance with the Promotion Regulations.   Further, the courts below did not appreciate that under the  Promotion Regulations, an officer who is included in the zone  of consideration has to be considered by the Selection  Committee even if disciplinary proceedings are pending  against him.  The name of such an officer is included  provisionally in the select list, if he is otherwise found  suitable for inclusion.  The courts below therefore erred in  hold that the names of such officers should not be  considered at all.

       Thus the findings of the High Court and Tribunal are  without noticing the expression provisions of the statutory  Regulations, in accordance with which the Selection  Committee prepared the select list.  Hence in our opinion  there orders are vitiated.

       The Selection Committee acted strictly in accordance  with the provisions of the Promotion Regulations, which are  statutory in nature.  The courts below erred in holding that  merely because the respondent no.1 was qualified and there  was no case pending against him, his name should have  been included in the select list.  The fact that he was eligible  and qualified only entitles him to be considered for selection  under the Promotion Regulations, but does not give him any  preference over others who have earned better grading than  him.  Respondent no.1 was duly considered by the Selection  Committee at Sl.No.11 and was addressed as ’Good’.   However, he was not included in the select list as officers  having better grading were available and also due to the  statutory limit on the size of the select list.

       Apart from the above we are also of the opinion that  orders of the High Court and the Tribunal are liable to be set  aside on the ground that the necessary parties have not  been impleaded.  Hence the Original Application before the  Tribunal was liable to be dismissed on this ground alone vide  Prabodh Verma and others, etc., etc. vs. State of Uttar  Pradesh and others, etc. [AIR 1985 SC 167].

       For the reasons given above, this appeal is allowed and  the impugned order of the High Court as well as of the  Tribunal are set aside.

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       There shall be no order as to costs.