UNION PUBLIC SERVICE COMMISSION versus M. SATHIYA PRIYA AND OTHERS

[2018] 6 S.C.R. 701

UNION PUBLIC SERVICE COMMISSION

M. SATHIYA PRIYA AND OTHERS

(Civil Appeal No. 10854 of 2014)

APRIL 13, 2018

[MOHAN M. SHANTANAGOUDAR ANDNAVIN SINHA, JJ.]

Service Law – Appointment by promotion – Respondent wasappointed as Deputy Superintendent of Police in the State – Thenames of the officers which were to be considered for appointmentto the IPS included the name of respondent – On an oralassessment of her service records, the Selection Committee did notinclude her in the select list of 2008 – Aggrieved, respondent filedapplication before CAT, which was allowed – Judgment of CAT wasconfirmed by the High Court – Appellant-UPSC contended that bothCAT and High Court erred in taking into consideration the AnnualConfidential Reports from 01.04.2003 to 31.03.2008 – On appeal,held: The IPS regulations and the guidelines framed therein by theCentral Government are to be applied jointly at the time of makingthe selection list – Selection Committee was to consider theperformance of the officer i.e., the service records including thelast five years, preceding the year for which the selection list is tobe prepared as per the guidelines – As crucial date for determiningthe eligibility of the officers is 1[st] January of the particular yearfor which selections are made, the Annual Confidential Reports uptothe year ending 31[st] March of the year preceding the year ofselection list are to be taken into account as per the Guidelines – Ininstant case, the selection list was to be prepared for the year 2008

– Crucial date for reckoning the eligibility of the officers in thematter on hand was 1[st] January, 2008 – Accordingly, the AnnualConfidential Reports upto the year ending 31[st] March, 2007 i.e.,the year preceding the year of the selection list, were to be takeninto account – Accordingly, only the Annual Confidential Reportsof five years upto the year ending 31[st] March, 2007 are relevanti.e. Annual Confidential Reports from 01.04.2002 to 31.03.2007needed to be taken into account at the time of selection – The same

Awas being rightly done by the Selection Committee in the matter onhand – Both CAT and High Court misdirected themselves andconsidered Annual Confidential Reports from 01.04.2003 to31.03.2008 – Further, the Selection Committee constituted by theUPSC is manned by experts in the field, one have to trust theirassessment unless it is actuated with malice or bristles with malaBfides or arbitrariness – In the instant case, neither the decision northe decision making process was actuated with malice, and no gravemistake was committed by the Selection Committee leading toarbitrariness – The selection was made rationally – IPS(Appointmentby Promotion) Regulations, 1955 – regn. 5.

CAllowing the appeal, the Court

HELD: 1. The error that crept into the findings of theTribunal, as confirmed by the High Court, was on account of thebasic fact that they erred in not properly appreciating the span/scope of selection by Selection Committee. For the purpose ofDconsideration of candidate for selection to the IPS in respect ofthe select list of 2008, the Annual Confidential Reports from1.4.2003 to 31.03.2008 could not have been taken into accountby the Selection Committee. As per para 3.1 of the Guidelines,the assessment of the eligible officers is with special referenceEto the performance of the officer during the last five years,preceding the year for which the select list is prepared. As thecrucial date for determining the eligibility of the officers is taken1[st] January of particular year for which the selections are beingmade, the Annual Confidential Reports upto the year ending31[st] March of the year preceding the year of selection list are toFbe taken into account as per para 3.2 of the Guidelines. In thematter on hand, the selection list was to be prepared for the year2008. Thus, the crucial date for reckoning the eligibility of theofficers in the matter on hand is 1[st] January, 2008. Accordingly,the Annual Confidential Reports upto the year ending 31[st] March,G2007 i.e., the year preceding the year of the selection list, are tobe taken into account. The Selection Committee will considerthe performance of the officer i.e., the service records includingthe last five years, preceding the year for which the selection listis to be prepared as per para 3.1 of the Guidelines. Accordingly,

only the Annual Confidential Reports of five years upto the yearending 31[st] March, 2007 are relevant i.e. Annual ConfidentialReports from 01.04.2002 to 31.03.2007 needed to be taken intoaccount at the time of selection. The same was being done bythe Selection Committee in the matter on hand. Hence, no faultcan be found. It seems that the CAT, as well as the High Court,has misdirected in coming to the wrong conclusion that AnnualConfidential Reports from 1.4.2003 to 31.03.2008 ought to havebeen taken into consideration inasmuch as such conclusion isagainst the IPS (Appointment by Promotion) Regulations, 1955& the Guidelines framed therein by the Central Government.[Para 12] [719-C-H]

2. The CAT and the High Court have mainly relied on thegrading given in the Annual Confidential Reports of the officersat the State level while coming to their conclusion. But, in termsof the Regulations and the Guidelines framed therein, forcategorising the officers, the Selection Committee was requiredto consider the overall relative assessment of the service recordsof each of the eligible officers. The Selection Committee is notguided merely by the grading recorded in the Annual ConfidentialReports but makes its own assessment on the basis of the qualityof the officer as indicated in various columns recorded by theReporting/Reviewing/Accepting Authority thereunder. In otherwords, the Selection Committee is not required to compulsorilyaccept the gradings given in the Annual Confidential Reports asit would amount to merely acting as post office and the wholeprocess would be nothing but farce. The grading recorded inthe Annual Confidential Report of particular year may differfrom the grading arrived at by the Selection Committee in respectof the said Annual Confidential Report depending on all relevantmaterial. [Para 13] [720-A-D]

3. The Selection Committee consists of experts in the field.It is presided over by the Chairman or Member of the UPSCand is duly represented by the officers of the Central Governmentand the State Government who have expertise in the matter. Whena High Level Committee or an expert body has considered themerit of each of the candidates, assessed the grading and

Aconsidered their cases for promotion, it is not open to the CATand the High Court to sit over the assessment made by theSelection Committee as an appellate authority. The question asto how the categories are assessed in light of the relevant recordsand as to what norms apply in making the assessment, isexclusively to be determined by the Selection Committee. SinceBthe jurisdiction to make selection as per law is vested in theSelection Committee and as the Selection Committee membershave got expertise in the matter, it is not open for the Courtsgenerally to interfere in such matters except in cases where theprocess of assessment is vitiated either on the ground of bias,Cmala fides or arbitrariness. It is not the function of the Court tohear the matters before it treating them as appeals over thedecisions of the Selection Committee and to scrutinise the relativemerit of the candidates. The question as to whether candidateis fit for particular post or not has to be decided by the duly

constituted expert body, i.e., the Selection Committee. TheDCourts have very limited scope of judicial review in such matters.[Para 15] [720-G, H; 721-A-C]

4. This Court has repeatedly observed and concluded thatthe recommendations of the Selection Committee cannot bechallenged except on the ground of mala fides or serious violationEof the statutory rules. The courts cannot sit as an appellateauthority or an umpire to examine the recommendations of theSelection Committee like Court of Appeal. This discretion hasbeen given to the Selection Committee only, and the courts rarelysits as Court of Appeal to examine the selection of candidate;Fnor is it the business of the Court to examine each candidate andrecord its opinion. Since the Selection Committee constitutedby the UPSC is manned by experts in the field, one have to trusttheir assessment unless it is actuated with malice or bristles withmala fides or arbitrariness. [Para 16] [722-F, G]

G5. In the matter on hand, neither the decision nor thedecision making process was actuated with malice, and no gravemistake was committed by the Selection Committee leading toarbitrariness. The selection has been made rationally. Theapplicant-respondent no.1 was duly considered by the SelectionCommittee. However, on an overall assessment of her serviceH

records, her name was not included in the select list due to thestatutory limit of its size and as officers with higher grading wereavailable for inclusion in the select list as per the provisions ofRegulation 5(5) of the Regulations. [Para 19] [724-C-D]

R.S. Dass v. Union of India and Others (1986) Suppl.SCC 617 : [1987] SCR 527 ; UPSC v. K. Rajaiah andOthers (2005) 10 SCC 15 ; Union of India v. A.K. Narula(2007) 11 SCC 10 : [2007] 7 SCR 262 ;M. V.Thimmaiah v. UPSC (2008) 2 SCC 119 : [2007] 13 SCR624 – referred to.

Case Law Reference

[1987] SCR 527

(2005) 10 SCC 15

[2007] 7 SCR 262 referred

[2007] 13 SCR 624 referred Para 18

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10854of 2014.

From the Judgment and Order dated 24.06.2013 of the High Courtof Judicature at Madras in Writ Petition No. 15367 of 2010.

Ms. Binu Tamta, Adv. for the Appellant.

R. Venkatramani, Sr. Adv., Nitish Gupta, Chandra Prakash,Dr. Ritu Bhardwaj, Yashraj Bundela, Radhakrishnan, M. Yogesh Kanna,Advs. for the Respondents.

The Judgment of the Court was delivered by

MOHAN M. SHANTANAGOUDAR, J. 1. This appeal isdirected by the Union Public Service Commission (for short,‘UPSC’)against the judgment and order dated 24.06.2013, passed bythe High Court of Judicature at Madras in Writ Petition No. 15367 of2010, whereby the High Court has dismissed the aforesaid writ petitionfiled by the UPSC and confirmed the order of the Central AdministrativeTribunal, Chennai Bench, Chennai (for short, ‘CAT’), dated 07.04.2010directing the official respondents to consider the name of the firstrespondent herein for appointment to the IPS by taking into account theservice records for the period from 1.4.2003 to 31.3.2008, and appointher to the IPS by notionally treating such appointment with effect from

Athe date of notification, i.e., 5.5.2009, and also by giving appropriateplace of seniority to the first respondent amongst the private respondents.

2. Brief facts leading to this appeal are:

The first respondent (contesting respondent) was appointed asDeputy Superintendent of Police in the State of Tamil Nadu; she joinedBfor duties on 26.05.1997; she was promoted as Superintendent of Policeon 10.06.2006 and has worked at different places on the said post. Inthe seniority list of State Police Service (for short ‘SPS’) Officers, thefirst respondent, at the given point of time, stood at serial No.11. Sincethe fourth person in the seniority list was over-aged, the first respondentCwas effectively considered at serial No.10 in the seniority list for thepurpose of this case. For the year 2008, there were ten vacancies forSPS to the Indian Police Service (for short, ‘IPS’), which is an All IndiaService. The appointment by promotion to the IPS is governed by theIPS (Appointment by Promotion) Regulations, 1955 (hereinafter referredto as the ‘Regulations’). The zone of consideration is three times theDnumber of vacancies and, therefore, at least thirty names ought to beconsidered for appointment to the IPS. The names of the first thirtyofficers in the SPS including the name of the first respondent, wereplaced before the Selection Committee for consideration for appointmentto the IPS for the year 2008. The name of the first respondent wasEconsidered at serial No. 9 in the zone of consideration. On an oralassessment of her service records, the Selection Committee graded thefirst respondent as “Good”. On the basis of this grading, she could notbe included in the select list of 2008 due to the statutory limit of its sizeand the availability of officers with higher grading for inclusion in theselect list. Though, at an earlier point of time, it was found that disciplinaryFproceedings were pending against Srimati V. Jayashree (respondent no.6herein), subsequently on being cleared by the disciplinary authority, theGovernment of India issued notification appointing Srimati V. Jayashreealso to the IPS. Thus, all the ten vacancies were filled by the Governmentof India including that of respondent no.6 herein.G3. Aggrieved by the non-inclusion of her name in the select list of2008, the first respondent filed Original Application No. 441 of 2009before the CAT, inter alia contending that on valid assessment of herservice records, the Selection Committee ought to have graded her as“Outstanding” or at least “Very Good”, and in that event she would have

been selected for appointment to the IPS. She also contended that herservice records are better than those of almost all the private respondentsand that the Selection Committee had acted in an arbitrary manner inmaking the selection by superseding her for appointment to the IPS.

4. The CAT allowed the Original Application No. 441 of 2009filed by the first respondent herein by its judgment dated 07.04.2010.The judgment of the CAT is confirmed by the High Court of Judicatureat Madras in Writ Petition No. 15367 of 2010, vide impugned judgmentand order dated 24.06.2013. The judgments of the CAT and the HighCourt are called in question in this appeal by the UPSC.

5. There cannot be any dispute that the UPSC discharges thefunctions and duties assigned to it under Article 320 of the Constitution.By virtue of the provisions in the All India Services Act, 1951, separaterecruitment rules have been framed for the IAS/IPS/IFS. In pursuanceof Sub-rule (1) of Rule 9 of the IPS (Recruitment) Rules, 1954, the IPS(Appointment by Promotion) Regulations, 1955 have been framed. Themethod of appointment is provided in Regulation 5, which reads thus:

“5. PREPARATION OF LIST OF SUITABLE OFFICERS:-

5(1) Each Committee shall ordinarily meet every year and preparea list of such members of the State Police Service as are held bythem to be suitable for promotion to the Service. The number ofmembers of the State Police Service to be included in the list shallbe determined by the Central Government in consultation withthe State government concerned, and shall not exceed the numberof substantive vacancies as on the first day of January of the yearin which the meeting is held, in the posts available for them underrule 9 of the Recruitment Rules. The date and venue of the meetingof the Committee to make the selection shall be determined bythe Commission;

Provided that no meeting of the Committee shall be held, andno list for the year in question shall be prepared when;

a. there are no substantive vacancies as on the first day ofJanuary of the year in the posts available for the membersof the state Police Service under rule 9 of the recruitmentrules; or

b. the Central Government in consultation with the StateGovernment decides that no recruitment shall be madeduring the year to the substantive vacancies as on thefirst day of January of the year in the posts available forthe members of the State Police Service under rule 9 ofthe Recruitment Rules;

Provided further that where no meeting of the Committee couldbe held during year for any reason other than that providedfor in the first proviso as and when the Committee meets again,the Select List shall be prepared separately for each year duringwhich the Committee could not meet as on the 31[st] Decemberof each year.

EXPLANATION:- In case of Joint Cadres, separate selectlist shall be prepared in respect of each State Police Service.

5(2) The Committee shall consider for inclusion to the said list,the cases of members of the State Police Services in the order ofseniority in that service of number which is equal to three timesthe number referred in sub-regulation (1).

Provided that such restriction shall not apply in respect of aState where the total number of eligible officers is less thanthree times the maximum permissible size of the Select Listand in such case the Committee shall consider all the eligibleofficers;

Provided further that in computing the number for inclusion inthe field of consideration, the number of officers referred to insub-regulation (3) shall be excluded;

Provided also that the Committee shall not consider the caseof member of the State Police Service unless on the first dayof January of the year for which the Select List is prepared heis substantive in the State Police Service and has completednot less than eight years of continuous service (whetherofficiating or substantive) in the post of Deputy Superintendentof Police or in any other post or posts declared equivalentthereto by the State Government.

Provided also that in respect of any released EmergencyCommissioned or Short Service Commissioned officersappointed to the State Police Service, eight years of continuousservice as required under the preceding proviso shall be countedfrom the deemed date of their appointment to that service,subject to the condition that such officers shall be eligible forconsideration if they have completed not less than four yearsof actual continuous service, on the 1[st] day of January of theyear for which the Select List is prepared, in the post of DeputySuperintendent of Police or in any other post or posts declaredequivalent thereto by the State Government.

EXPLANATION: The powers of the State Government underthe third proviso to the sub-regulation shall be exercised inrelation to the members of the State Police Service of constituentState, by the Government of that State.

5(2)(A)Deleted.

5(3) The Committee shall not consider the cases of the membersof the State Police Service who have attained the age of 54 yearson the first day of January of the year for which the Select List isprepared:

Provided that member of the State Police Service whosename appears in the Select List prepared for the earlier yearbefore the date of the meeting of the Committee and who hasnot been appointed to the service only because he was includedprovisionally in that Select List shall be considered for inclusionin the fresh list to be prepared by the Committee, even if hehas in the meanwhile, attained the age of fifty four years.

Provided further that member of the State Police Servicewho has attained the age of fifty four years on the first day ofJanuary of the year for which the Select List is prepared shallbe considered by the Committee, if he was eligible forconsideration on the first day of “January of the year or any ofthe years immediately preceding the year in which such meetingis held but could not be considered as no meeting of theCommittee was held during such preceding year or years underitem (b) of the proviso to sub-regulation(1)”.

5(3)(A) The Committee shall not consider the case of suchmember of the State Police Service who had been included in anearlier select list and :

a) had expressed his unwillingness for appointment to theservice under regulation 9;

Provided that he shall be considered for inclusion in the SelectList, if before the commencement of the year, he applies inwriting, to the State Government expressing his unwillingnessto be considered for appointment to the service;

b) was not appointed to the service by the CentralGovernment under regulation 9 (a).

5(4) The Selection Committee shall classify the eligible officersas “Outstanding”, “Very Good”, “Good” and “unfit” as the casemay be on an overall relative assessment of their service records.

5(5) The List shall be prepared by including the required numberof names first from amongst the officers finally classified as“Outstanding” then from amongst those similarly classified as “VeryGood” and thereafter from amongst those similarly classified as“Good” and the order of names inter-se within each categoryshall be in the order of their seniority in the State Police Service.

Provided that the name of an officer so included in the list shallbe treated as provisional if the State Government withholdsthe integrity certificate in respect of such an officer or anyproceedings, departmental or criminal are pending against himor anything adverse against him which renders him unsuitablefor appointment to the service has come to the notice of theState Government.

Provided further that while preparing year wise select lists formore than one year pursuant to the 2[nd] proviso to sub regulation(1), the officer included provisionally in any of the Select Listso prepared shall be considered for inclusion in the Select Listof subsequent year in addition to the normal consideration zoneand in case he is found fit for inclusion in the suitability list forthat year on provisional basis such inclusion shall be in additionto the normal size of the select list determined by the CentralGovernment for such year.

EXPLANATION I: The proceedings shall be treated as pendingonly if charge-sheet has actually been issued to the officeror filed in Court as the case may be.

EXPLANATION II: The adverse thing which came to thenotice of the State Government rendering him unsuitable forappointment to the service shall be treated as having come tothe notice of the State only if the details of the same have beencommunicated to the Central Government and the CentralGovernment is satisfied that the details furnished by the StateGovernment have bearing on the suitability of the officer andinvestigation thereof is essential.

5 (6)Omitted.

5 (7)Deleted.”

6. Ms. Binu Tamta, learned counsel representing the appellantherein, while taking us to the material on record, submits that the CAT,as well as the High Court, has fallen into error by virtually assessing theperformance of the first respondent as an appellate authority and thattoo wrongly; they have erred in taking into consideration the AnnualConfidential Reports from 1.4.2003 to 31.03.2008; the relevant AnnualConfidential Reports to be considered for the purpose of the selection inquestion were from 1.4.2002 to 31.03.2007, the Selection Committeehas rightly taken into consideration the Annual Confidential Reports ofthose years only, and therefore the impugned judgments are bad in law;the selection is to be made by the Selection Committee not only basedon Annual Confidential Reports in respect of the concerned officer butalso based on other relevant factors including the examination of servicerecords of the officer in comparison to the other officers in the eligibilitylist/zone of consideration and on the basis of overall relative assessment.

Contrary to the afore-mentioned procedure prescribed and beingfollowed throughout, the CAT, as well as the High Court, has decidedthe matter purely on the basis of the grading found in the AnnualConfidential Reports of the first respondent, and that too of the year01.04.2003 to 31.03.2008.

7. Per contra, Shri Venkatramani, learned senior counsel arguedin support of the judgments of the CAT as well as the High Courtcontending that the service record of the first respondent has been mostly

A“Outstanding” throughout till 31.03.2008, or even till 31.03.2007; the firstrespondent ought to have been graded as “Outstanding” or at least “VeryGood”; absolutely no reasons are assigned to supersede the firstrespondent by making the appointment of her juniors in preference tothe first respondent; the other private respondents were graded as “VeryGood” but none of the six juniors selected had the “Outstanding” gradingBin their service records, and some of them did not even have the “VeryGood” grading; the Selection Committee and the UPSC have notobjectively evaluated the first respondent in accordance with theregulations, and hence the list prepared which was impugned before theCAT was rightly modified with direction to appoint the first respondentCin IPS. Relying upon the judgment in the case of R.S. Dass vs. Unionof India and others 1986 (Supp) SCC 617, he contended thatRegulation 5 examines the role of seniority in the process of selection,and importance and primacy was given to merit. The categorisation ofmeritorious candidates is done on the basis of service records includingConfidential Character Roll as mentioned by senior officers holding highDpositions. He further contended that it cannot be said now-a-days, ifone is aware of the facts and currents of life, that simply becausecategorization and judgment of the service records of officers are in thehands of senior officers, it is sufficient safeguard. There has beenconsiderable erosion in the intrinsic sense of fairness and justice in someEof the senior officers. From instances of the conduct of many, some ofthe senior officers and men in high position, it cannot be said that suchthinking on the subject of erosion is not wholly unjustified. Selection onmerits confers wide discretion on the authority making the selection, andin the absence of reasons there would be no objectivity, and the membersof the State Civil Service might receive discriminatory treatment by theFSelection Committee. On these, among other things, he prayed fordismissal of the appeal.

8. This Court in the case of R. S. Dass vs Union of India(supra)has observed that in order to rule out any grievance, actual or fancied,some objective basis for categorisation in the manner indicated shouldGbe laid down. If such objective basis is made known, and aftercategorisation the selection of junior officers in preference to seniorofficers is made, the Selection Committee need not state reasons, andthe same would not be violative of the canons of justice. In order toward off any suspicion in the minds of the candidates, this Court suggested

to the government and the authorities concerned that there should besome basis for the categorisation of the officers, and such basis shouldbe objective and not merely subjective evaluation, and furthermore suchbasis should be formulated in the form of guidelines. Pursuant to suchobservations made by this Court, the Central Government framedguidelines which have to be followed by the Selection Committee andthe UPSC. The relevant parts of the Guidelines, as on 12.03.2008, areas under:

“2.1 For preparing the Select Lists, the crucial date for reckoningthe eligibility of officers is taken with respect to the first day ofthe “year” as defined under Regulation 2(1)(l) of the IAS(Appointment and Promotion) Regulations, and which is presentlythe calendar year. The year in which the Selection Committeeactually meets {i.e. SCM year} is co-terminus with the definitionunder Regulation 2(1)(l). Further, in these Guidelines, whilereference is made to the provisions of the IAS (Appointment byPromotion) Regulations, the corresponding provisions of the IPS& IFS Regulations would be applicable while preparing the IPS& IFS Select Lists respectively.2.2 As per the provisions of the Promotion Regulations, whereyear-wise Select Lists are being prepared by the SelectionCommittee, the crucial date for determining the eligibility of theofficers is taken as on 1[st] January of the Select List year and thenotional due date for preparing the Select List of an earlier year istaken as 31[st] December of that Select List year for reckoning theavailability of eligible officers. For the Select List of the currentyear, the availability of eligible officer is reckoned on the date ofthe Selection Committee Meeting.

2.3 In accordance with Regulation 5(4) of the PromotionRegulations, the Selection Committee has to classify the eligibleofficers as ‘Outstanding’, ‘Very Good’, ‘Good’ or ‘Unfit’ as thecase may be on an overall relative assessment of their servicerecords (i.e. ACRs and the documents kept therein by thecompetent authority). For making an overall relative assessment,the committee will not depend solely on the grading recorded bythe reporting/reviewing/accepting authority but will make itsindependent assessment of the service records of the eligibleofficers as per the procedure indicated below.

3.1 The Selection Committee would go through the service recordsof each of the eligible officers, with special reference to theperformance of the officer during the last five years, precedingthe year for which the Select List is prepared and after deliberationwill record the assessment of the Committee in the AssessmentSheet comprising the Assessment Matrix [Officer x Year-wiseassessment] and the column for Overall Assessment of theofficers.

3.2 As the crucial date for preparation of the Select List is1[st] January of the year of the Select List, the ACRs upto the yearending 31[st] March (where ACRs are written on financial year-wise basis) or 31[st] December (where ACRs are written oncalendar year-wise basis) of the year preceding the year of theSelect List are to be taken into consideration by the SelectionCommittee.

4.1 The Selection Committee will go through the records of theeligible officers and make their assessment after deliberating onthe quality of the officer as indicated in the various columnsrecorded by the Reporting/Reviewing Officer/ Accepting Authorityin the ACRs for different years and then finally arrive at theclassification to be assigned to each officer. The SelectionCommittee would take into account orders regarding appreciationfor the meritorious work done by the concerned officers. Similarlyit would also keep in view orders awarding penalties or any adverseremarks communicated to the officer, which, even after dueconsideration of his representation, have not been completelyexpunged.

4.2 The Selection Committee would not be guided merely by theoverall grading, if any, that may be recorded in the ACRs butwould make its own assessment on the basis of the entries in theACRs because sometimes the overall grading in an ACR may beinconsistent with the grading under various parameters orattributes. Further, if the Reviewing Authority or the AcceptingAuthority, as the case may be, has differed from the assessmentmade by the reporting officer or the Reviewing Authority, as thecase may be, the remarks of the latter authority should be takenas the final remarks for the purpose of assessment provided it is

apparent from the relevant entries that the higher authority hascome to different assessment consciously after due applicationof mind. If the remarks of the Reporting Officer, ReviewingAuthority are complementary to each other and does not havethe effect of overruling the other, then the remarks should be readtogether and final assessment made by the Selection Committeeas indicated in para 4.1. This is also in accordance with the DPCguidelines of DOP&T, as contained in its OM No. 22011/5/86-Estt.(D) dated 10.04.1989 as amended from time to time.

4.4 While finalising the Overall Assessment of the officers [para3.1 above refers], an officer shall be graded as:

A. “Outstanding”, if in the opinion of the Selection Committee,the service records of the officer reflect that he is of outstandingmerit possessing exceptional attributes and abilities and thesecharacteristics are reflected in at least four of the ACRs forthe last five years including the ACR for the last year (i.e. uptothe preceding year for which the Select List is prepared)provided he is graded at least “Good” in the ACR of theremaining year. While grading an officer as “Outstanding”,the following indicative guidelines would be observed.

(i) Whilst the overall grading in the ACRs will have itsrelevance, however, in order to have final view, it willbe essential to carefully peruse and assess all theindividual attributes/columns in the ACRs like, WorkPerformance, Targets Achieved, Supervision, Managerialcapabilities, personality traits etc. before the Committeedecides to grade an officer as ‘Outstanding’.

(ii) Thus, there should be an in-depth analysis of theperformance of the officer before he is rated as‘Outstanding’. There should also be consistency in thegrading given by different Committees in different years.

(iii) Considering the fact that such ‘Outstanding’ officers aregoing to supersede other officers, there is greater needto ensure that such an officer has met the stringent normsof being graded as ‘Outstanding’. For such purposes,the ACRs of the concerned officer should elaborate his

significant achievements or exceptional nature of workin the areas of law and order, disaster management,implementation of developmental schemes etc.

(iv) Postings are not within the competence of an officer forwhich he ought not to be discriminated. However, theCommittee may also like to examine the various positionsthat such ‘Outstanding’ officers have occupied and thenature of duties performed by him over the years in theprocess of assessing the officer.

B. “Very Good”, if in the opinion of the SelectionCommittee, his ACRs reflect that the officer has done highlymeritorious work and possesses positive attributes and thesecharacteristics are reflected in at least four of the last fiveACRs (i.e. upto the preceding year for which the Select Listis prepared) provided he is graded at least “Good” in theACR of the remaining year.

C. “Good”, if in the opinion of the Selection Committee, theservice records reflect that the officer’s performance isgenerally satisfactory and he is considered fit for promotionand those characteristics are reflected in each of the ACRsfor the last five years (i.e. up to the preceding year for whichthe select list is to be prepared).

D. An officer may be categorised as “Unfit” if his reportsare lacking any positive merit or whose performance is notgenerally satisfactory or if there are entries in some of thelatest ACRs which adversely reflect on his suitability forpromotion of if the ACRs contain orders of penalty which inthe opinion of the Selection Committee would render theofficer unsuitable for promotion.”

Paras 2.1 and 2.2 of the Guidelines are relating to the fixing ofcrucial dates for determining the eligibility of the officers i.e. 1[st] Januaryof the select list year. Para 2.3 declares that the overall relativeassessment will not solely depend on the grading recorded by theReporting/Reviewing/Accepting Authority, but the Selection Committeewill make its own independent assessment of the service records. Para3.1 deals with scope of assessment. The Selection Committee will

consider the performance of each of the officers, i.e., service recordsduring the last five years, preceding the year for which the selection listis prepared. Para 3.2 states that as the crucial date for reckoning theeligibility of the officers is 1[st] January of the select list year, the AnnualConfidential Reports up to the year ending 31[st] March of the yearpreceding the year of selection list are to be taken into account. Para4.1 prescribes the procedure for assessment. The said guideline mandatesthat the Selection Committee shall go through all the relevant recordsand make its assessment after deliberating on the quality of the officeras indicated in various columns in the Annual Confidential Reports, andthen finally arrive at the conclusion. Para 4.2 specifies that the SelectionCommittee would not be guided merely by the overall grading in theAnnual Confidential Report, but would make its own assessment on thebasis of all entries in the Annual Confidential Report, because sometimesthe overall grading in an ACR may be inconsistent with the gradingunder various parameters or attributes. This virtually means that theSelection Committee will not act as post office but will take decisionon due application of mind. Para 4.4 mentions the overall assessment/categorisation of officers. It states that while finalising the overallassessment of the officers as per para 3.1, an officer shall be graded as“Outstanding”, “Very Good”, “Good” and “Unfit”. The para states indetail as to how such grading should be assigned, and on what basis.

9. The Regulations as well as the Guidelines are to be appliedjointly at the time of making the selection list. In our considered opinion,the Regulations and the Guidelines jointly prescribe adequate procedureand they form complete code in themselves. In accordance with theprovisions of the Regulations and Guidelines, the Selection Committee,presided over by the Chairman/Member of the UPSC, makes list forthe selection of SPS Officers for promotion to the IPS. As per Regulation5(1) of the Regulations, the number of members of the SPS to be includedin the Select List of particular recruitment year for promotion to theIPS, is determined by the Government of India (Ministry of Home Affairs)in consultation with the State Government concerned, keeping in mindthe number of substantive vacancies as of 1[st] January of the year theSelection Committee meets. Thereafter, the State Government forwardsa proposal to the UPSC along with the Seniority List, an Eligibility List(up to maximum of three times the number of vacancies) of the SPSOfficers, Integrity Certificates, certificates regarding disciplinary/criminal

Aproceedings, certificates regarding communication of adverse remarks,details of penalties imposed on the eligible officers etc. and completeACR dossiers of the eligible officers.

On receipt of the afore-mentioned records from the StateGovernment, the UPSC places such records before the SelectionBCommittee when the Selection Committee meets for selection for therecruitment year. In accordance with the provisions of Regulation 5(4)of the Regulations, the Selection Committee classifies the eligible SPSOfficers included in the zone of consideration as “Outstanding”, “VeryGood”, “Good” or “Unfit”, as the case may be, on an overall relativeassessment of their service records. Thereafter, the Selection CommitteeCprepares list as per the provisions of Regulation 5(5) of the Regulationsby including the required number of names first from the officers finallyclassified as “Outstanding”, then from amongst those similarly classifiedas “Very Good” and thereafter from amongst those similarly classifiedas “Good”. As per the provisions of Regulations 6 and 6A, the StateDGovernment and the Central Government are required to furnish theirobservations on the recommendations of the Selection Committee. Aftertaking into consideration the observations of the State Government andthe Central Government and the requisite records received from theState Government or the Central Government, the Commission will takea final decision on the recommendations of the Selection CommitteeEwith or without modifications in terms of the provisions of Regulation 7.Appointments to the IPS are made from the select list by the Governmentof India (Ministry of Home Affairs). From the afore-mentioned, it isclear that complete procedure is prescribed for selection and appointmentto the IPS cadre from the SPS.F

10. As mentioned supra, it is the contention of the first respondentthat the Selection Committee ought to have graded her as “Outstanding”or at least “Very Good”, on an overall relative assessment of her servicerecords, and consequently she would have been selected for the year2008. It is her further contention that on comparative assessment ofGher service records with those of the private respondents, who werejunior to her, she could not have been excluded from the selection list asher service records are better than those of almost all of them. Thus,according to her, the Selection Committee has acted expressly in anarbitrary manner in the said process of selection by superseding the firstrespondent.H

11. The CAT and the High Court have virtually assessed theperformance of the first respondent afresh, mainly taking into accountthe service records for the period from 1.4.2003 to 31.03.2008, and havedirected the official respondents to appoint her to the IPS by notionallytreating such appointment with effect from the date of notification, i.e.,with effect from 5.5.2009 by giving her appropriate place of seniorityamongst the private respondents.

12. In our considered opinion, the error that crept into the findingsof the Tribunal, as confirmed by the High Court, was on account of thebasic fact that they erred in not properly appreciating the span/scope ofselection by Selection Committee. For the purpose of consideration ofa candidate for selection to the IPS in respect of the select list of 2008,the Annual Confidential Reports from 1.4.2003 to 31.03.2008 could nothave been taken into account by the Selection Committee, as observedby the CAT and the High Court. As per para 3.1 of the Guidelines, theassessment of the eligible officers is with special reference to theperformance of the officer during the last five years, preceding the yearfor which the select list is prepared. As the crucial date for determiningthe eligibility of the officers is taken 1[st] January of particular year forwhich the selections are being made, the Annual Confidential Reportsupto the year ending 31[st] March of the year preceding the year of selectionlist are to be taken into account as per para3.2 of the Guidelines. In thematter on hand, the selection list was to be prepared for the year 2008.Thus, the crucial datefor reckoning the eligibility of the officers in thematter on hand is 1[st] January, 2008. Accordingly, the Annual ConfidentialReports upto the year ending 31[st] March, 2007 i.e., the year precedingthe year of the selection list, are to be taken into account. As mentionedsupra, the Selection Committee will consider the performance of theofficer i.e., the service records including the last five years, precedingthe year for which the selection list is to be prepared as per para 3.1 ofthe Guidelines. Accordingly, only the Annual Confidential Reports offive years upto the year ending 31[st] March, 2007 are relevant i.e. AnnualConfidential Reports from 01.04.2002 to 31.03.2007 needed to be takeninto account at the time of selection. The same was being done by theSelection Committee in the matter on hand. Hence, no fault can befound. It seems that the CAT, as well as the High Court, has misdirectedin coming to the wrong conclusion that Annual Confidential Reports from1.4.2003 to 31.03.2008 ought to have been taken into considerationinasmuch as such conclusion is against the Regulations &the Guidelines.

A13. The CAT and the High Court have mainly relied on the gradinggiven in the Annual Confidential Reports of the officers at the Statelevel while coming to their conclusion. But, in terms of the Regulationsand the Guidelines framed therein, for categorising the officers, theSelection Committee was required to consider the overall relativeassessment of the service records of each of the eligible officers. TheBSelection Committee is not guided merely by the grading recorded in theAnnual Confidential Reports but makes its own assessment on the basisof the quality of the officer as indicated in various columns recorded bythe Reporting/Reviewing/Accepting Authority thereunder. In other words,the Selection Committee is not required to compulsorily accept theCgradings given in the Annual Confidential Reports as it would amount tomerely acting as post office and the whole process would be nothingbut farce. The grading recorded in the Annual Confidential Report ofa particular year may differ from the grading arrived at by the SelectionCommittee in respect of the said Annual Confidential Report dependingon all relevant material.D14. Learned counsel for the UPSC, drawing the attention of theCourt to the contents of the affidavit filed by the UPSC before the CAT,submits that the Selection Committee also reviews and determines theoverall grading recorded in the Annual Confidential Reports to ensurethat the overall grading in the Annual Confidential Reports is notEinconsistent with the grading/remarks under various specific parametersor attributes. It is brought to the notice of the Court that the SelectionCommittee takes into account orders regarding appreciation formeritorious work done by the officers concerned and also keeps in vieworders awarding penalties or any adverse remarks duly communicatedFto the officers, which even after due consideration of their representationby the suitable forum, are not expunged. The afore-mentioned normsare uniformly applied to all the States/Cadres in the matter of inductioninto the All IndiaServices.

15. The Selection Committee consists of experts in the field. It isGpresided over by the Chairman or Member of the UPSC and is dulyrepresented by the officers of the Central Government and the StateGovernment who have expertise in the matter. In our considered opinion,when High Level Committee or an expert body has considered themerit of each of the candidates, assessed the grading and consideredtheir cases for promotion, it is not open to the CAT and the High Court toH

sit over the assessment made by the Selection Committee as an appellateauthority. The question as to how the categories are assessed in light ofthe relevant records and as to what norms apply in making theassessment, is exclusively to be determined by the Selection Committee.Since the jurisdiction to make selection as per law is vested in the SelectionCommittee and as the Selection Committee members have got expertisein the matter, it is not open for the Courts generally to interfere in suchmatters except in cases where the process of assessment is vitiatedeither on the ground of bias, mala fides or arbitrariness. It is not thefunction of the Court to hear the matters before it treating them as appealsover the decisions of the Selection Committee and to scrutinise the relativemerit of the candidates. The question as to whether candidate is fit fora particular post or not has to be decided by the duly constituted expertbody, i.e., the Selection Committee. The Courts have very limited scopeof judicial review in such matters.

We are conscious of the fact that the expert body’s opinion maynot deserve acceptance in all circumstances and hence it may not beproper to say that the expert body’s opinion is not subject to judicialreview in all circumstances. In our constitutional scheme, the decisionof the Selection Committee/Board of Appointment cannot be said to befinal and absolute. Any other view will have very dangerousconsequence and one must remind oneself of the famous words of LordActon “Power tends to corrupt, and absolute power corrupts absolutely”.The aforementioned principle has to be kept in mind while deciding suchcases. However, in the matter on hand, it is abundantly clear from theaffidavit filed by the UPSC that the Selection Committee which is nothingbut an expert body had carefully examined and scrutinised the experience,Annual Confidential Reports and other relevant factors which wererequired to be considered before selecting the eligible candidates for theIPS. The Selection Committee had in fact scrutinised the merits anddemerits of each candidate taking into consideration the various factorsas required, and its recommendations were sent to the UPSC. It is thesettled legal position that the Courts have to show deference andconsideration to the recommendations of an Expert Committee consistingof members with expertise in the field, if malice or arbitrariness in theCommittee’s decision is not forthcoming. The doctrine of fairness,evolved in administrative law, was not supposed to convert tribunals andcourts into appellate authorities over the decision of experts. The

Aconstraints – self-imposed, undoubtedly – of writ jurisdiction still remain.Ignoring them would lead to confusion and uncertainty. The jurisdictionmay become rudderless.

16. No doubt, the Selection Committee may be guided by theclassification adopted by the State Government but, for good reasons,Bthe Selection Committee may evolve its own classification which maybe at variance with the grading given in the Annual Confidential Reports.As has been held by this Court in the case of UPSC vs. K. Rajaiahand others (2005) 10 SCC 15, the power to classify as “Outstanding”,“Very Good”, “Good” and “Unfit” is vested with the Selection Committee.That is function incidental to the selection process. The classificationCgiven by the State authorities in the Annual Confidential Reports is notbinding on the Selection Committee. Such classification is within theprerogative of the Selection Committee and no reasons need be recorded,though it is desirable that in case of grading at variance with that of theState Government, reasons be recorded. But having regard to the natureDof the function and the power confined to the Selection Committee underRegulation 5(4), it is not legal requirement that reasons should berecorded for classifying an officer at variance with the StateGovernment’s decision. It is relevant to note that no allegations of maliceor bias are made by the first respondent at any stage of the proceedingsagainst the Selection Committee or the UPSC.E

This Court has repeatedly observed and concluded that therecommendations of the Selection Committee cannot be challengedexcept on the ground of mala fides or serious violation of the statutoryrules. The courts cannot sit as an appellate authority or an umpire toexamine the recommendations of the Selection Committee like CourtFof Appeal. This discretion has been given to the Selection Committeeonly, and the courts rarely sits as Court of Appeal to examine theselection of candidate; nor is it the business of the Court to examineeach candidate and record its opinion. Since the Selection Committeeconstituted by the UPSC is manned by experts in the field, we have toGtrust their assessment unless it is actuated with malice or bristles withmala fides or arbitrariness.

17. In the case of Union of India vs. A.K. Narula reported in(2007) 11 SCC 10, this Court in similar circumstances observed thus:

“15. The guidelines give certain amount of play in the joints toDPC by providing that it need not be guided by the overall gradingrecorded in CRs, but may make its own assessment on the basisof the entries in CRs. DPC is required to make an overallassessment of the performance of each candidate separately, butby adopting the same standards, yardsticks and norms. It is onlywhen the process of assessment is vitiated either on the groundof bias, mala fides or arbitrariness, that the selection calls forinterference. Where DPC has proceeded in fair, impartial andreasonable manner, by applying the same yardstick and norms toall candidates and there is no arbitrariness in the process ofassessment by DPC, the court will not interfere (vide SBI v. Mohd.Mynuddin [(1987) 4 SCC 486 : 1987 SCC (L&S) 464 : (1987) 5ATC 59] , UPSC v. Hiranyalal Dev [(1988) 2 SCC 242 : 1988SCC (L&S) 484 : (1988) 7 ATC 72] and Badrinath v. Govt. ofT.N. [(2000) 8 SCC 395 : 2001 SCC (L&S) 13] ). The ReviewDPC reconsidered the matter and has given detailed reasons asto why the case of the respondent was not similar to that of R.S.Virk. If in those circumstances, the Review DPC decided not tochange the grading of the respondent for the period 1-4-1987 to31-3-1988 from “good” to “very good”, the overall grading of therespondent continued to remain as “good”. There was no questionof moving him from the block of officers with the overall rating of“good” to the block of officers with the overall rating of “verygood” and promoting him with reference to DPC dated13-6-1990. In the absence of any allegation of mala fide or biasagainst DPC and in the absence of any arbitrariness in the mannerin which assessment has been made, the High Court was notjustified in directing that the benefit of upgrading be given to therespondent, as was done in the case of R.S. Virk.”

18. In the case of M.V. Thimmaiah vs. UPSC reported in (2008)2 SCC 119, this Court, after considering various judgments on the subject,observed thus:

“30. We fail to understand how the Tribunal can sit as an AppellateAuthority to call for the personal records and constitute SelectionCommittee to undertake this exercise. This power is not given to

ABC

Athe Tribunal and it should be clearly understood that the assessmentof the Selection Committee is not subject to appeal either beforethe Tribunal or by the courts. One has to give credit to the SelectionCommittee for making their assessment and it is not subject toappeal. Taking the overall view of ACRs of the candidates, onemay be held to be very good and another may be held to be good.BIf this type of interference is permitted then it would virtuallyamount that the Tribunals and the High Courts have started sittingas Selection Committee or act as an Appellate Authority over theselection. It is not their domain, it should be clearly understood, ashas been clearly held by this Court in number of decisions. ......”

19. In the matter on hand, we find that neither the decision nor thedecision making process was actuated with malice, and no grave mistakewas committed by the Selection Committee leading to arbitrariness. Wefind that it is not case of pick and choose, but the selection has beenmade rationally. The applicant-respondent no.1 was duly considered byDthe Selection Committee. However, on an overall assessment of herservice records, her name was not included in the select list due to thestatutory limit of its size and as officers with higher grading were availablefor inclusion in the select list as per the provisions of Regulation 5(5) ofthe Regulations.E20. So far as the case of respondent no.6 – Srimati V. Jayashreeis concerned, initially some disciplinary proceedings were pending againsther. Though the disciplinary proceedings were pending, the name ofSrimati V. Jayashree, respondent no.6 herein, on an overall relativeassessment of her service records, was provisionally included in theselect list, subject to clearance in the disciplinary proceedings. Since theFState Government had certified the integrity of the said officer, in viewof the fact that the disciplinary proceedings ended with negative report,her name was finally included in the select list. Such procedure wasadopted by the Selection Committee in accordance with the first provisoto Regulation 5(5) of the Regulations, which reads thus:G“Provided that the name of an officer so included in the list shall

“Provided that the name of an officer so included in the list shallbe treated as provisional if the State Government withholds theintegrity certificate in respect of such an officer or any proceedings,departmental or criminal are pending against him or anythingadverse against him which renders him unsuitable for appointmentto the service has come to the notice of the State Government.”

The proviso to Regulation 5(5) specifically provides for inclusionof officers in the select list against whom departmental/criminalproceedings are pending, their inclusion in the select list remainsprovisional, subject to clearance of departmental/criminal proceedings.However, their appointments to the IPS can be made only after theirnames are made unconditional in the select list, in accordance with thesecond proviso to Regulation 7(4) of the Regulations, which reads thus:

“7(4) The Select List shall remain in force till the 31st day ofDecember of the year in which the meeting of the selectioncommittee was held with view to prepare the list under sub-regulation (1) of regulation 5 or upto sixty days from the date ofapproval of the Select List by the Commission under sub-regulation(1) or, as the case may be, finally approved under sub-regulation(2), whichever is later:

xxx

Provided that where the State Government has forwarded theproposal to declare provisionally included officer in the selectlist as “Unconditional”, to the Commission during the periodwhen the select list was in force, the Commission shall decidethe matter within period of forty five days or before the dateof meeting of the next Selection Committee, whichever is earlierand if the Commission declares the inclusion of the provisionallyincluded officer in the Select List as unconditional and final,the appointment of the concerned officer shall be consideredby the Central Government under regulation 9 and suchappointment shall not be invalid merely for the reason that itwas made after the Select List ceased to be in force.”

21. Since the name of Srimati V. Jayashree, respondent no.6 herein,was provisionally included in the select list and was made unconditionalin the select list after her exoneration in the disciplinary proceedings, shewas appointed in the 2008 batch.

22. Having regard to the entire material on record, we do not findany ground to agree with the reasons assigned by the CAT and the HighCourt while coming to their conclusion. The High Court has strangelymade out fresh additional point in favour of the first respondent byobserving that, on perusal of the records maintained by the SelectionCommittee, the High Court was not able to find the grading of the officers

Arecorded by the State Government. In other words, the High Court wasof the view that since the records submitted before the SelectionCommittee did not include the grading of the officers recorded by theState Government, the Selection Committee did not have an opportunityto take into account the grading recorded by the State Government whilecoming to its conclusion. We do not agree with the said observations.BThe CAT while deciding the matter has taken into account all the recordsincluding the grading of the State Government, which means such recordswere very much available at the time of consideration before the SelectionCommittee, as well as at the time of decision by the CAT. In this context,it is brought to the notice of the Court by the learned counsel representingCthe UPSC that after the selection process is over, the Annual ConfidentialReports maintained by the State Government with the grading given tothe officers by the State Government were sent back to the StateGovernment, since those records belong to the State Government; therest of the records remained with the UPSC. The records which were

available with the UPSC were produced before the High Court. However,Dthe records pertaining to the grading of the officers recorded by theState Government could have been secured by the High Court from theState Government. Instead of securing records from the StateGovernment, the High Court has strangely observed that such recordswere not available before the Selection Committee. It is but natural forEthe Selection Committee to send back the records to the State Governmentafter the selection process is ended and appointments are made.

23. In view of the above, the judgments of the CAT dated07.04.2010, and the High Court of Judicature at Madras dated 24.06.2013,stand set aside.F24. Accordingly, the instant civil appeal is allowed. There shall beno order as to costs.

Ankit Gyan

Appeal allowed.