Ashok Kumar v. Union of India — 1999 DIGILAW 728 (PAT)

JUDGMENT B. P. Singh & I. P. Singh, JJ. - In this batch of writ petitions which are directed against the common judgment and order of the Central Administrative Tribunal, Patna Bench, Patna dated 29th day of January, 1998 in O.A Nos. 326 and 331 of 1997 the sole question which arises for consideration is whether the Tribunal was right in holding that the Committee constituted under the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 ought to have prepared year-wise select list of candidates for appointment by promotion to the Indian Administrative Service rather than a consolidated select list in respect of vacancies which occurred during the period of three years since the Committee could not meet during this period for reasons beyond its control. The Tribunal has held, following the judgment of the Supreme Court in Union of India and others vs. Vipinchandra Hiralal Shah (1996) VI Supreme Court Cases 721) that the Committee should have prepared a separate list for each year, keeping in view the number of vacancies in that year, after considering the State Civil Service Officers who were eligible, and fell within the zone of consideration, for selection in that year. While counsel for the petitioners before this Court contend that the aforesaid judgment of the Supreme Court in Vipin Chandra Hiralal Shah's case, does not apply to the facts of these cases, counsel for the private respondents contend that the principles laid down by the Supreme Court in the aforesaid judgment squarely cover these cases, and the Tribunal has rightly allowed the petitions before it following the aforesaid binding precedent of the Supreme Court. 2. Of the six writ petitions before this Court, four have been preferred by the petitioners whose names were included in the consolidated select list prepared by the Committee. The petitioner in CWJC No. 3293 of 1998 is the Union Public Service Commission. The petitioner in CWJC no. 2567 of 1998 however, is an officer of the State Administrative Service whose name was not included in the select list, and who was also a petitioner before the Tribunal, yet he has preferred this writ petition urging some of the questions urged before the Tribunal, on which the Tribunal has expressed no opinion, since the list prepared by the Committee has been quashed on the ground that it was not prepared in accordance with the Regulations. 3. 3. A few facts, not in dispute, may be stated. The Committee under the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as the Regulations) met on 31st March, 1994 and prepared a list of 51 candidates. Thereafter the Committee did not meet in the following years and it met next on the 26th, 27th and 28th of March, 1997 to prepare the list of selected officers, to be considered for appointment against the vacancies which occurred in the years 1994-95, 1995-96 and 1996-97. The committee prepared a list of 60 officers to fill up the 50 vacancies which occurred, or were anticipated, in the three years in question. The Committee did not prepare separate lists of selected officers in respect of each year, but clubbing together all the vacancies which occurred in the three years in question, and the anticipated vacancies, a common select list of 60 officers was prepared. This list was considered by the State of Bihar, the Govt. of India and ultimately after approval of the Union Public Service Commission, the list was notified in the Gazette on 27.11.1997. 4. The private respondents in four of the writ petitions and the petitioner in CWJC No. 2567 of 1998 filed two applications before the Tribunal challenging the preparation of the select list. It may be noticed that when the two applications were filed before the Tribunal, the select list had not been finally' published, but after its publication, the petitioners before the Tribunal prayed for amendment of the petitions and challenged the said published select list. 5. The preparation of the select list, and the select list as notified, was challenged before the Tribunal on several grounds. It was urged on behalf of the petitioners before the Tribunal that the Committee committed an error of law in clubbing together all the vacancies which occurred in the three years in question, and in preparing a common list to fill up all those vacancies. According to the petitioners before the Tribunal, the Committee ought to have prepared a separate list in respect of vacancies arising in each year, having regard to the persons eligible for appointment in that year against the anticipated vacancies of that year. According to the petitioners before the Tribunal, the Committee ought to have prepared a separate list in respect of vacancies arising in each year, having regard to the persons eligible for appointment in that year against the anticipated vacancies of that year. It was also contended before the Tribunal that the list was defective inasmuch as several officers of the State Administrative Service who had crossed the age of 54, and were therefore ineligible, for being considered, had been included in the aforesaid common select list. Thirdly, it was contended that even in the absence of integrity certificate, the names of some of the officers had been included in the select list, which is illegal. Lastly, it was submitted that the committee did not follow the norms as laid down in the regulations and in a mechanical manner graded senior officers whose names appeared upto serial No. 81 by giving them the remark "outstanding" and thereafter mechanically ignoring the cases of junior officers who were more meritorious, by not giving the remark "outstanding" to any one of the officers, whose names appeared from serial No. 82 to 260. In short, the allegation is that the grades have been awarded by the Committee not on the basis of merit, but on the basis of seniority, which was contrary to the norms laid down in the regulations. 6. The Tribunal has not considered the other submissions urged before it, but has rested its decision on its finding on the first question, namely, that the Tribunal was not justified in clubbing together the vacancies which occurred, or which were anticipated, during the three years in question, and that it should have prepared separate lists in respect of each year in question, having regard to eligibility of the candidates concerned and the vacancies of each year. 7. Counsel for the Union Public Service Commission as well as the other petitioners in the writ petitions, except CWJC No. 2567 of 1998, have contended that the Committee did not commit any error in preparing a common select list after clubbing together the vacancies which occurred, or which were anticipated, in the three years in question, since the Committee could not meet for reasons beyond its control. On the other hand, counsel for the private respondents, as well as the petitioner in CWJC No.2567 of 1998, have contended that on a true and correct appreciation of the provisions of the regulations, the Tribunal has rightly held that the method adopted by the Committee was not in accordance with the regulations. It is not necessary for us to analyse the provisions of the Regulations and to consider the submissions urged on behalf of the parties as to the true and correct meaning and import of the various regulations contained therein. The petitioners as well as the respondents have made submissions before us in support of the1r rival contentions and have read the provisions of the Regulations in a manner which favour their submissions. We are, however, of the opinion that since the question is not res integra, it is futile for us to analyse the various provisions of the Regulation since the matter stands concluded by a binding precedent of the Supreme Court in Union of India Vs. Vipinchandra Hiralal Shah (supra). This is also the view taken by the Tribunal. 8. In Vipinchandra Hiralal Shah, the short question which fell for consideration before the Supreme Court was whether it was permissible to club vacancies of a number of years while preparing the select list for promotion to the Indian Administrative Service from the State Civil Service. In considering that question, the Supreme Court noticed the various provisions of the regulations and thereafter held as follows. "It must, therefore, be held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst the State Civil Service Officers who fulfil the conditions regarding eligibility on the first day of January of the year in which the Committee meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year considering the State Civil Service Officers who were eligible and fell within the zone of consideration for selection in that year." 9. The Court thereafter gave the following directions. "(1) The number of vacancies failing in the quota prescribed for promotion of State Civil Officers to the Service shall be determined separately for each year in respect of the period from 1980 to 1986. (2) The State Civil Service Officers who have been appointed to the Service on the basis of the impugned Select List of December 1986/January 1987 and were senior to the respondent in the State Civil Service shall be adjusted against the vacancies so determined on yearwise basis. (3) After such adjustment if all the vacancies in a particular year or years are filled by the officers referred to in para (2), no further action need be taken in respect of those vacancies for the said year/years. (4) But, if after such adjustment vacancy/vacancies remain in a particular year/years during the period from 1980 to 1986, notional Select List/Lists shall be prepared separately for that year/years on a consideration of all eligible officers falling within the zone of consideration determined on the basis of the vacancies 'of the particular year. (5) If the name of the respondent is included in the notional Select List Lists prepared for any particular year/years during the period 1980 to 1986 and if he is so placed in the order of merit so as to have been entitled to be appointed against a vacancy of that particular year, he be appointed to the Service against that vacancy of that year with all consequential benefits. (6) The vacancy against which the respondent is so appointed would be adjusted against the subsequent vacancies falling in the promotion quota prescribed for the State Civil Service Officers. (6) The vacancy against which the respondent is so appointed would be adjusted against the subsequent vacancies falling in the promotion quota prescribed for the State Civil Service Officers. (7) Such appointment of the respondent would not affect the appointments that have already been made on the basis of the impugned Select List of December 1986/January 1987." 10. A bare perusal of the aforesaid judgment of the Supreme Court leaves us in the doubt, that the Regulations require the Committee to meet at intervals not exceeding one year. If for any good reason, the Committee is not able to meet within the period prescribed by the Regulations, it may meet later and prepare the list in accordance with the regulations. As and when the Committee meet next, it has to prepare a separate list for each year, keeping in view the number of vacancies of that year after considering the State Civil Service Officers who were eligible and fell within the zone of consideration for selection in that year. We are of the opinion that the ratio of the Supreme Court's decision in Vipinchandra Hiralal Shah's case apply squarely to the facts of these writ petitions and justify the conclusion reached by the Tribunal. 11. Counsel for the petitioners, however, contended that in Vipinchandra Hiralal Shah's case the Court had considered the judgments of the Supreme Court in Union of India vs. Mohan Lal Capoor, (1973) 2 SCC 836 and Syed Khalid Rizvi vs. Union of India, (1993) Supp(3) SCC 575 and had recorded a conclusion that Clause (1) of Regulation 5 regarding Committee meeting at intervals not exceeding one year and preparing a list of such members of the State Civil Service who are suitable for promotion to the Service, was a mandatory requirement which had to be followed. According to the petitioners those two decisions were later considered by the Supreme Court in H. R. Kasturi Rangan vs. Union of India and ors., reported in 1998(1) Scale (SP) 11. It was submitted, relying upon the judgment of the Supreme Court in Kasturi Rangan that, as explained by the Supreme Court, in the aforesaid Regulations the requirement that the Select Committee must meet every year, is not mandatory. It was submitted, relying upon the judgment of the Supreme Court in Kasturi Rangan that, as explained by the Supreme Court, in the aforesaid Regulations the requirement that the Select Committee must meet every year, is not mandatory. It is true that the Court considered its earlier judgments in Mohan Lal Capoor and Syed Khalid Rizvi and observed that the word "ordinarily" occurring in Regulation 5(1) supported the contention of the petitioners therein that the requirement was not mandatory. Their Lordships however went on to hold that in Syed Khalid Rizvi as well, the Court did not hold that the requirement was mandatory so that as a result of the breach of the mandatory requirement, the action became illegal. In Syed Khalid Rizvi's case also, the Court noticed the use of word "ordinarily" and held that failure to prepare the select list every year did not amount to a break down of the relevant Rules and Regulations. The Court observed; "The learned counsel for the respondent, who had made that submission before a two Judge Bench, then referred to the observations in para 34 of the decision in Rizvi wherein Regulation 5 has been described as mandatory while saying that "preparation of the select list every year is mandatory". In our opinion these observations in the decision in Rizvi have to be read in the context and together with what follows that observation. It has been stated thereafter that the dereliction of the statutory duty must satisfactorily be accounted for by the State Government concerned and this Court takes serious note of want on infraction. It is clear from the observations which follow that the importance of performing this exercise annually was emphasised and it was pointed out that in the event of any failure, the lapse must be satisfactorily explained by the State Government concerned. This is itself an indication of the purpose for which the peformance of that exercise annually was described as mandatory, without saying that its breach invalidates the subsequent action." 12. In Vipinchandra Hiralal Shah's case also, the Supreme Court did not strike down the list on the ground that it was not prepared each year as mandatorily required. This is itself an indication of the purpose for which the peformance of that exercise annually was described as mandatory, without saying that its breach invalidates the subsequent action." 12. In Vipinchandra Hiralal Shah's case also, the Supreme Court did not strike down the list on the ground that it was not prepared each year as mandatorily required. Having noticed Regulation 5 which provided that the Committee shall ordinarily meet at intervals not exceeding one year, the Court only emphasised the need for the preparation of such list each year, but went on to hold that even if the Committee failed to meet during a particular year, that would not dispense with the requirement of preparing the select list for that year. In clear words, the Court held that if for any reason, the Committee is not able to meet during a particular year, the Committee when it meets next, should prepare a separate list for each year in accordance with the Regulations. 13. The view taken in Kasturi Rangan's case was reiterated by the Supreme Court in Nepal Singh Tanwar Vs. Union of India & ors. etc., 1998 (1) Scale (SP) 7. 14. Counsel for the petitioners relying upon these decisions submitted that this Court should hold that the judgment of the Supreme Court in Vipinchandra Hiralal Shah's case is per incurium. It was, further, contended that this Court should hold that in the light of the judgments of the Supreme Court in Kasturi Rangan and Nepal Singh Tanwar, the principles enunciated in Vipinchandra Hiralal' case are no longer good law. 15. So far as the first submission is concerned, we are of the considered view that the per incurium rule is not applicable in relation to a judgment of a superior court. The per incurium rule which denudes a precedent of its binding character, may be applicable in relation to a judgment of the same Court or of a Subordinate Court, but it is certainly not applicable in relation to a judgment of a superior court. Even if it appears to a Court that there is apparently a conflict of opinion between the decisions of superior court, the Court is still bound by those decisions. Even if it appears to a Court that there is apparently a conflict of opinion between the decisions of superior court, the Court is still bound by those decisions. In accordance with the principles laid down in various decisions of the Supreme Court, it may decide which of the decisions is applicable to the facts and circumstances of the case with which the Court• is concerned. It is in these situations that a Court may prefer a judgment pronounced by a larger bench even if a judgment subsequently rendered by a smaller bench takes the contrary view without noticing the earlier binding precedent. The principles which apply to such situations are well known, and all that we wish to emphasise at this stage is that the per incurium rule cannot be applied in relation to a judgment of a superior court as that would result in a judicial anarchy. The second submission that Vipinchandra Hiralal Shah's case does not any longer lay down the correct law is equally devoid of force. The observations of the Supreme Court in Mohan Lal Capoor, Syed Khalid Rizvi, Kasturi Rangan and Nepal Singh Tanwar were in relation to the manadatory nature of the provisions of Regulation 5(1). What was under consideration in those decisions was the question as to whether the requirement of Regulation 5(1) which provided that the Committee shall ordinarily meet at intervals not exceeding one year and prepare a list ...., was mandatory. That question was considered in the light of the submissions urged before the Court that if a mandatory requirement of law is not followed, the action taken would be vitiated. In Kasturi Rangan, the Supreme Court considering its earlier decisions held that it was not mandatory that the Committee must meet each year in the sense that if it did not meet, its subsequent action would become illegal. It was observed that the observation in Syed Khalid Rizvi must be understood in the context and in the light of what followed the observation. In the instant case, there is no dispute with regard to the mandatory or directory nature of Regulation 5(1). It was observed that the observation in Syed Khalid Rizvi must be understood in the context and in the light of what followed the observation. In the instant case, there is no dispute with regard to the mandatory or directory nature of Regulation 5(1). In Vipinchandra Hiralal Shah, the Court in fact, was not oblivious of the fact that the Committee may not meet each year, and yet went on to observe that as and when it met next it was not absolved of its responsibility to prepare a list for each year separately. Vipinchandra's case does not hold that the action of the Committee was vitiated because it did not meet each year, and that it met once after three years. There is, therefore, nothing in any of the decisions of the Supreme Court on which reliance has been placed, to justify that what has been held in Vipinchandra's case is not correct. None of the cases on which reliance has been placed by counsel for the petitioners dealt with the question which arose for consideration in Vipinchandra's case. In those decisions, the question which arose for consideration was whether the requirement of Regulation 5(1) requiring the Committee to ordinarily meet at intervals not exceeding one year and prepare a list, was mandatory. In Vipinchandra's case, the question which arose for consideration was whether it was permissible for the Committee meeting after an interval of few years to club vacancies of a number of years while preparing the select list for promotion to the Indian Administrative Service from the State Civil Service in accordance with the Regulations. This question did not arise for consideration in any other decision of the Supreme Court cited before us. There is, therefore, no warrant for the submission that the judgment in Vipinchandra's case is no longer good law in view of the decisions of the Supreme Court in the cases referred to by the petitioners. The question as to whether Regulation 5(1) is mandatory, is a question quite distinct from the question as to whether a Committee meeting after several years is required to make a separate list in respect of each year, or is justified in clubbing together the vacancies of several years and preparing a common list. The question as to whether Regulation 5(1) is mandatory, is a question quite distinct from the question as to whether a Committee meeting after several years is required to make a separate list in respect of each year, or is justified in clubbing together the vacancies of several years and preparing a common list. In Vipinchandra's case, the Court noticed the fact that for good reasons, the Committee may not meet each year, but as and when the Committee met it was bound to prepare a separate select list for each year. We have, therefore, no doubt, in our mind that the principles laid down in Vipinchandra's case squarely apply to the facts of these cases. The judgment of the Supreme Court in Vipinchandra's case is binding upon us, and that is why we have not noticed the submissions urged on behalf of the Union Public Service Commission and some of the other petitioners who characterised the judgment in Vipinchandra's case as erroneous. Since the judgment of the Supreme Court is binding upon us and continues to operate as a binding precedent, insofar as it has not been overruled by any other decision of the Supreme Court, this Court is bound to follow the decision without scrutinising the correctness thereof. 16. It was submitted before us that the judgment in Vipinchandra's case is also rendered inapplicable to the facts of this case, because Regulation 7(4) of the Regulations was amended in the year 1989, whereas the judgment in Vipinchandra's case was rendered much earlier. According to the amended Regulation 7(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(1) or, as the case may be, finally approved under sub-regulation (2) provided that no appointment to the service under regulation 9 shall be made after the meeting of a fresh Committee to draw up a fresh list under regulation 5 is held. It was, therefore, submitted that the moment the Committee prepares a list for the first year and proceeds to prepare the list for the second year, the list prepared for the first year cannot be acted upon in view of the proviso. Therefore in view of the first proviso to Regulation 7(4), three separate lists for the three different years cannot be prepared. Therefore in view of the first proviso to Regulation 7(4), three separate lists for the three different years cannot be prepared. This submission was urged before the Tribunal as well, and the Tribunal has, in our opinion, adequately answered this question. We cannot lose sight of the fact that holding of Committee meeting each year is intimately connected with and is an integral part of the scheme envisaged by the Regulations. If for any reason, the Select Committee is not able to meet each year, it will certainly give rise to complications. That however, does not mean that the regulations cannot be worked. The amendment to Regulation 7(4) does not, in any manner, affect the provisions which provide for the preparation of a select list yearwise. Since the year wise list is sought to be prepared after a. lapse of several years, some minor deviations have to be permitted as of necessity, so that the regulations are substantially complied with. The amendment to Regulation 7(4) does not touch the core question regarding preparation of the select list for each year, and therefore in our view Vipinchandra' case still holds the field, notwithstanding amendment to Regulation 7(4) of the Regulations. 17. It was also urged before us that in Ramanand Prasad Singh & anr. vs. Union of India and others, reported in (1996) 4 Supreme Court Cases 64, a question arose about extending the zone of consideration by inclusion of more names, which was consequential upon the preparation of a common list after clubbing together vacancies which occurred in three years. The Court held that since number of vacancies were more, the zone of consideration was also enlarged. However, it was fairly conceded on behalf of the petitioners that the question as to whether it is permissible to prepare a common list after clubbing together vacancies occurring in different years, and the Committee is not required to prepare a select list for each year separately, was not a question which was urged before the Court, and therefore not considered by the Court. In our opinion, since this question did not arise for consideration of the Court in Ramanand Prasad Singh's case, no decision was rendered by the Supreme Court on this question. However, in Vipinchandra's case, precisely this very question was raised and answered, and therefore the decision in Vipinchandra's case is a binding precedent. 18. In our opinion, since this question did not arise for consideration of the Court in Ramanand Prasad Singh's case, no decision was rendered by the Supreme Court on this question. However, in Vipinchandra's case, precisely this very question was raised and answered, and therefore the decision in Vipinchandra's case is a binding precedent. 18. For the foregoing reasons, we are of the opinion that the Tribunal has correctly held that the Committee was required to prepare a separate list in respect of each year in accordance with the Regulations, and the preparation of a common list after clubbing together vacancies of several years is illegal. 19. Apart from the parties, we have also heard the intervenors in I.A. nos. 393 of 1998, 9715 of 1999 and 9826 of 1999. These intervenors, in fact, have supported the judgment of the Tribunal. 20. We, therefore, hold that the principles laid down by the Supreme Court in Vipinchandra's case squarely apply to the facts of these cases and the Tribunal has therefore, rightly allowed the applications before it following the judgment of the Supreme Court in Vipinchandra's case. There is no merit in these writ petitions and the same are accordingly dismissed. So far as CWJC No. 2567 of 1998 is concerned, the same has been preferred by the petitioner who was also a petitioner before the Tribunal. The questions which he wished to urge before us are questions on which the Tribunal has not expressed its opinion, neither do those questions fall for consideration before us. No relief, therefore, can be granted to the petitioner in CWJC No.2567 of 1998 which is, accordingly, dismissed. 21. Some other questions were urged before us which arise on account of the fact that during the pendency of the applications before the Tribunal, there was no order of stay, and therefore, several officers whose names were included in the select list have since been promoted to the Indian Administrative Service. Some of the officers however, whose names are included in the select list, have not been promoted to the Indian Administrative Service and they have made a grievance that they have been erroneously excluded on the ground that they had crossed the age of 54. We do not wish to express any opinion on this question. The Tribunal while allowing the applications before it has directed the respondents to prepare a separate yearwise select list. We do not wish to express any opinion on this question. The Tribunal while allowing the applications before it has directed the respondents to prepare a separate yearwise select list. Taking notice of the fact that certain promotions might have already been ordered from the select list, the Tribunal has directed that the officers who have already been promoted from the impugned select list need not be reverted, but their continuance as regular members of the Indian Administrative Service cadre, and also their seniority position, will depend on their inclusion and their respective positions in the select list to be prepared as directed by the Tribunal. In our view, the direction given by the Tribunal is reasonable and must be acted upon. As it is, there has been considerable delay, and in the year 1999, the select lists of the years 1994-95, 1995-96, 1996-97 and of the subsequent years, have yet to be prepared. We, therefore, direct the Union Public Service Commission, the State Government and the Union of India to take immediate steps to cenvene the meeting of the Select Committee so that the Committee may prepare the select lists in the manner directed by the Tribunal within a period of three months from today, so that the promotion of large number of State Administrative Service Officers be finalised as soon as possible. Some of the persons whose names find place in the select list, but who have not been appointed, have urged their grievance before us against their not being promoted to the Indian Administrative Service in the same manner as others whose names find place in the select list. We express no opinion on the merit of their claim and if so advised, they may move the Union of India, State Government or the Union Public Service Commission for appropriate orders. Counsel has relied upon the decision of the Supreme Court reported in 1996(10) Supreme Court Cases 469 (Union of India Vs. Mohan Rathore and another), particularly the direction contained in the last paragraph of the judgment. The petitioners may rely upon this decision before the competent authority which may take a decision in accordance with law.