Judgment :- Jawahar Lal Gupta, C.J. Is the selection and appointment of Smt. V. Bhavani and Sri. S. Sreenivasan to the Indian Administrative Service out of the non State Civil Service officers legal and valid? The Central Administrative Tribunal has found that the selection was not in accordance with law. Thus, it has accepted the petitions filed by Sri. V. Sisupalan and P.M. Senan. Aggrieved by the order of the Tribunal, the two selected officers and the State Government have filed these four petitions under Article 226 of the Constitution. The sequent of events may be briefly noticed. 2. On August 1, 1997 the Chief Secretary issued a Circular pointing out that appointments had to be made by selection from amongst the non State Civil Service Officers to the Indian Administrative Service. Officers serving in connection with the affairs of the State, who had completed “not less than 8 years of continuous service under the State Government as on 1.4.1997 in a gazetted post involving duties comparable in importance and responsibility to that of the State Civil service and also holding the post in a substantive capacity are eligible to be considered…” Officers were requested to forward their recommendations from amongst the persons working under their administrative control. The details had to be given in the prescribed proforma. The officers were asked to forward the C.R. dossiers with up-to-date reports of the officers. This request was reiterated vide letter dated August 28, 1997. In pursuance to the aforesaid letter, different departmental Secretaries had forwarded the names of different persons. It appears that, in all, the names of 19 persons were received in the office of the Chief Secretary. 3. On June 1, 1998, Mr. Mukundan, Under Secretary, sent a communication to the Department of General Administration (C.R.Cell) pointing out that in respect of 11 officers the Confidential Reports “were missing… for the period noted against each.” Ultimately, the then Chief Secretary selected 10 persons, out of the 19 whose names had been received from different departments. A copy of the note dated August 13, 1998 recorded by the Chief Secretary is at page 27 of the original file shown to us by Mr. Roy Chacko, learned Sr. Government Pleader. 4. On August 31, 1998, the Committee as constituted under Regulation 3 of the I.A.S. (Appointment by Promotion) Regulations, 1955, met and selected Mr. A copy of the note dated August 13, 1998 recorded by the Chief Secretary is at page 27 of the original file shown to us by Mr. Roy Chacko, learned Sr. Government Pleader. 4. On August 31, 1998, the Committee as constituted under Regulation 3 of the I.A.S. (Appointment by Promotion) Regulations, 1955, met and selected Mr. S. Sreenivasan and Smt. V. Bhavani after interviewing the ten candidates. Mr. Roy Chacko has also produced a photocopy of the proceedings of the Selection Committee before us in a sealed cover today in Court. 5. The selection of these two officers was challenged by Mr. V. Sisupalan and Mr. P.M. Senan by filing separate petitions before the Central Administrative Tribunal. Notice of both the petitions was given to the respondents. The matter was considered by the Tribunal. Ultimately, it found that the selection was not in conformity with the rules. The Confidential Reports had not been sent. The claim of Mr. Senan had not been considered. Thus, both the petitions were allowed with the direction that the authority shall consider the claims de novo. Aggrieved by the order, the State and the selected candidates have filed these four petitions. 6. Mr. Roy Chacko, learned counsel for the petitioners in O.P. Nos.539 of 2001 and 1267 of 2001 has pointed out that the claims of all eligible persons had been duly considered. The process of selection was just and fair. The Tribunal has erred in passing the impugned order. 7. Mr. Kelu Nambiar, learned counsel for the petitioner in O.P.No.36391 of 2000 has contended that the service record of Mr. Sisupalan being incomplete a fresh selection shall serve no purpose. Mr. Sudhakara Prasad, learned counsel for the petitioner in writ petition No. 36398 of 2000 has contended that the first respondent has no cause for grievance. His name was not forwarded by the Secretary under whom he was working. Thus, he could not have been considered either at the time of short-listing or thereafter by the Selection Committee. Learned counsel was at pains to pains out that the selected candidates were appointed on November 5, 1998. Vide order dated August 3, 2000, they were confirmed with effect from the date of appointment. Interference at this late stage would cause irreparable loss. Mr. Learned counsel was at pains to pains out that the selected candidates were appointed on November 5, 1998. Vide order dated August 3, 2000, they were confirmed with effect from the date of appointment. Interference at this late stage would cause irreparable loss. Mr. P.K. Suresh Kumar, who also appears for the petitioner in O.P.No. 36391 of 2000, further contended that even if there were some irregularities of procedure the selected officers were not to be blamed. Thus, their career should not be jeopardized. It was emphasized that Mr. Sisupalan had not submitted his self-appraisal report in time. As a result, his Confidential Reports were not complete. Thus, his claim could not be considered. 8. Mr. Chandrasenan has submitted that Mr. P.M. Senan was a substantive member of the service in the Department of Public Relations. Mr. L. Natarajan, respondent No.3 was the officer who had to consider the claim. He had not done so. Even if it is assumed that the case had to be considered by the Secretary, Cultural Affairs under whom, the respondent was posted at that time, the record clearly shows that the officer had not considered the case. The Confidential Reports of the respondents were never sent for from the Department of Public Relations. Thus, there was no consideration of the claim. He has also pointed out that the specific allegations of malafides made against the 3rd respondent viz. Mr. Natarajan having not been denied despite opportunity, the action was vitiated by malafides. The Counsel maintained that the view taken by the Tribunal was just and fair. 9. Mr. Santhos Mathew, learned counsel for Mr. V. Sisupalan has contended that his record, though available, was not considered. Resultantly, there was violation of Articles 14 and 16 of the Constitution. The selection of the petitioner in these writ petitions was, thus, vitiated. The order of the Tribunal is in conformity with the rules and the provisions of Article16. 10. In view of the contentions raised by learned counsel for the parties, the short question that arises for consideration is: “Was the selection fair and in conformity with the provisions of the Rules as also Article 16 of the Constitution?’ 11. The question may be considered separately in respect of the two officers viz. Mr. Senan and Mr. Sisupalan. 12. Firstly, we take up the case of Mr. P.M. Senan. The question may be considered separately in respect of the two officers viz. Mr. Senan and Mr. Sisupalan. 12. Firstly, we take up the case of Mr. P.M. Senan. It is the admitted position that he fulfilled the conditions stipulated in the letter dated August 1, 1997. He was admittedly working on a gazetted post since 1980. He had, thus, a continuous service on a gazetted post for about 16 years on April 1, 1997. It is also not disputed that he had been confirmed on a gazetted post. Still further, the post held by him was equivalent in rank and responsibility to that of an officer in the State Civil Service. Still, his name was not considered for appointment. 13. The claim of Mr. Senan was that Mr. L. Natarajan had failed to consider his claim. This was malafide. Thus, the selection was vitiated. The case of the authorities was that at the relevant time, Mr. Senan was working in the Department of Cultural Affairs. He was under the supervision of the Principal Secretary, Cultural Affaris. Thus, he alone had to consider his claim and not Mr. Natarajan. Since the name of Mr. Senan was not forwarded by the Secretary of Cultural Affiars, it should be presumed that he was duly considered but not found suitable. 14. It is the admitted position that Mr. Senan was initially working as an Additional Director in the Department of Public Relations. His Confidential Reports were maintained in the office of the Department of Public Relations. Even when he was working as Director of Cultural Affairs under the supervision of the Secretary in-charge of that Department, the file relating to the Confidential Reports had remained in the Department of Public Relations. There is not even a suggestion on the file of the Government or the record of the case which may even remotely indicate that the Confidential Reports of Mr. Senan were either examined by Mr. L. Natarajan, who was the Secretary of the Department of Public Relations or by the Secretary of the Department of Cultural Affairs under whose supervision the officer was working in the year 1997-98. 15. Another fact, which deserves mentions, is that the Secretary, Cultural Affairs had recorded the report for the year 1997 regarding the performance of Mr. Senan. He had recorded the following remarks: “Shri Senan is a sincere and well meaning person. 15. Another fact, which deserves mentions, is that the Secretary, Cultural Affairs had recorded the report for the year 1997 regarding the performance of Mr. Senan. He had recorded the following remarks: “Shri Senan is a sincere and well meaning person. Like every genius he also finds to his dismay that the environmental equations are unstable, but he can be trusted. And that is saying a lot these days. Can be considered for promotion to IAS.” This report was endorsed by the Minister on January 16, 1998. It is also not disputed that the Secretary had forwarded this report to the Department of Public Relations for being placed on the officer’s file. This report is symbolic of the officer’s assessment by the Secretary of the Department where he was working at the relevant time. Yet, there is nothing on record to suggest that either of the two secretaries who were looking after the Departments of Public Relations and Cultural Affairs respectively had considered the service record of the officer to find out his suitability for appointment to the IAS. Can we still say that his claim was duly considered? 16. On behalf of the petitioners in these four petitions, it has been contended that the claim had to be considered by the Secretary, Department of Cultural Affairs and not in the Department of Public Relations. Assuming it to be so, there is nothing to suggest that the reports of the officer were event sent for or examined by the Secretary, Department of Cultural Affairs. This is so despite the fact that the officer had represented as early as on March 30, 1998. In this situation, we are driven to the inevitable conclusion that the claim of the officer was not considered by any officer. 17. Learned counsel for the petitioners have contended that the Secretary, Cultural Affairs had recommended the name of Smt. Sathi Devi. On this basis, it is contended by Mr. Sudhakara Prasad that a fair inference regarding the consideration of the claim of Mr. Senan can be raised that the Secretary had found only Smt. Sathi Devi as suitable. He had not recommenced the claim of Mr. Senan. Thus, he was not considered to be fit for appointment to the IAS. 18. It appears difficult to accept this contention. This list of officers whose claims were considered appears at page 367 of the original file. He had not recommenced the claim of Mr. Senan. Thus, he was not considered to be fit for appointment to the IAS. 18. It appears difficult to accept this contention. This list of officers whose claims were considered appears at page 367 of the original file. The name of Smt. Sathi Devi is not there in the list. Thus, the basis on which the contention is raised is non-existent. Still further, the mere fact that the name of some officer was recommended cannot ipso facto lead to the conclusion that the claim of Mr. Senan had been considered Consideration of a particular person’s case is a positive act. His reports have to be examined. The quality of his performance has to be assessed. Thereafter, the assessment has to be recorded. In the present case, there is not even a suggestion that the record of the officer was ever sent for. Thus, the question of consideration of his claim cannot arise. In fact, it deserves mention that he had held a gazetted post for a long period of 17 years. His performance must have been assessed by different officers. Without the examination of the Confidential Reports, no assessment could have been made. There being no evidence of the fact that the reports were ever sent for or examined by either the Secretary, Department of Cultural Affairs or by the Secretary in charge of the Department of Public Relations, it appears clear to us that the claim was not considered. Resultantly, we find no infirmity in the finding recorded by the Tribunal regarding the claim of the officer. 19. This beings us to the consideration of the case of Mr. Sisupalan. He had joined service in the year 1968. It is the admitted position that he had been appointed to a gazetted post in or about the year 1985. He had more than 11 years of gazetted service to his credit. He had been duly confirmed. His name had also been recommended by the Secretary, Department of Rural Development under whom he was working as Additional Development Commissioner at the relevant time. 20. A perusal of the original file produced by Mr. Roy Chacko shows that at page 367, the confidential Reports of the 19 officers were graded. The Reports for the years 1993 to 1997 were considered. In the case of all the officers except Mr. 20. A perusal of the original file produced by Mr. Roy Chacko shows that at page 367, the confidential Reports of the 19 officers were graded. The Reports for the years 1993 to 1997 were considered. In the case of all the officers except Mr. Sisupalan, points were allotted in respect of the reports for the aforesaid 5 years. However, in the case of Mr. Sisupalan, points were allotted only for the reports for the years 1996 and 1997. No grade whatsoever had been given in respect of the reports for the year 1993 to 1995. Why? 21. The claim made on behalf of the petitioner in writ petition No.36391 of 2000 is that there was delay in his submission of his self-appraisal reports. Thus, the reports could not be completed. Resultantly, the credit could not be given. As against this, Mr. Roy Chacko, the Sr. Government Pleader appearing for the State Etc., had referred to the affidavit filed by Mr. P.K. Sivanadan, the Principal Secretary, Recovery, Rural Development Department in O.A.No.1358 of 1998 before the Central Administrative Tribunal. On the basis of this affidavit, it is contended that the Confidential Reports in respect of this officer were not complete, as these had not been reviewed by the competent authority. Resultantly, the grade could not been given for the three years in question. 22. A perusal of the original file produced by Mr. Chacko shows that on June 1, 1998 a communication had been sent regarding 11 officers. It was pointed out that the reports of these officers were not complete. In case of Mr. D. Gopalan, whose name appeared at SI.No.8, the reports for the period January 1 to December 1990 and July 16, 1996 to December 31, 1997 were not available. Similarly, in respect of various other officers he periods for which the reports were missing were also indicated. So far as Mr. Sisupalan is concerned, his name did not even find mention in the list of 11 officers. Does it not indicate that his reports were considered to be complete? In the absence of any other material on record it appears clear to us that in case the reports had been missing, the name of the officer would have found mention in the letter of June 1, 1998. Does it not indicate that his reports were considered to be complete? In the absence of any other material on record it appears clear to us that in case the reports had been missing, the name of the officer would have found mention in the letter of June 1, 1998. The fact that it did not appear in the list can reasonably lead to the conclusion that the record was complete. 23. Another fact, which deserves mention is that the name of Mr. S. Sreenivasan, a selected candidate, also appeared in this list at SI No.6. His report for the period from April 1, 1996 to December 31, 1997 was not available. Still further, the personal file of Mr. Sreenivasan produced by Mr. Roy Chacko shows that the officer’s report for the period from May 22, 1996 to June 8, 1998 was actually recorded on June 8, 1998. It is on the file. Even a note regarding self-assessment made by the officer is on the file. However, it does not bear any date. So far as the report is concerned, it appears to have been recorded on June 8, 1988 by the Minister for Food, Tourism and Law. Why was this report recorded on the eve of selection? The remarks as recorded by the Minister give an inkling. It was observed, “he is an outstanding officer in all respects suitable for being selected to the Indian Administrative Service.” Thus, it is clear that in case of the officer the Confidential Reports were got completed and taken into account. There may be nothing wrong in the action of the authority in getting the report completed. However, it raises the question that in case the reports of Mr. Sisupalan were incomplete, why a similar action was not taken. Assuming that his reports though recorded by the reporting officer had not been reviewed by the competent authority, the needful could have been got done. It was not so done. No reasons has been given. 24. Thus, it is clear that the officer was given no credit for the reports for three years. As a result, he was virtually excluded from consideration. This was not fair. 25. Mr. Roy. Chacko has submitted that vide letter dated March 7, 1998 the Under Secretary had written to the Rural Development Department to forward the C.R. dossiers of Mr. Sisupalan. It is undoubtedly so. As a result, he was virtually excluded from consideration. This was not fair. 25. Mr. Roy. Chacko has submitted that vide letter dated March 7, 1998 the Under Secretary had written to the Rural Development Department to forward the C.R. dossiers of Mr. Sisupalan. It is undoubtedly so. This letter appears at page 253 of the original file. However, it also deserves mention that such letters were written in respect of various officers and not Mr. Sisupalan alone. What deserves notice is that in case of incomplete reports, the letter was sent only on June 1, 1998. It has not been shown that by that date the dossiers of Mr.Sisupalan had not been received or that the reports were not complete. The fact that his name was not mentioned in the letter shows that his reports were complete. Still, these were not considered. 26. Another fact, which deserves mention, is that we had sent for the Confidential Reports of the four officers who are parties in these cases. When complete records were not shown to us, a direction was given on November 13, 2003 that the Chief Secretary or the Additional Chief Secretary shall personally enquire into the reasons for the missing reports and file an affidavit indicating the factual position. An affidavit dated November 24, 2003 was filed. This affidavit indicates the casual manner in which the officers are functioning. In paragraph 3 of the affidavit it has been averred that there is delay in writing the Confidential Reports by the “Reporting officers in the case of Smt. Bhavani and Sri. Sreenivasan. It is respectfully submitted that such delay is not unusual in Government.” Still further, in paragraph 4, it has been averred that officers were provisionally promoted without convening the Departmental promotion Committees. The “CRs were not required for such promotions.” It has been found that the “DPC meetings were not held for several years, for some cases as long as 15 to 20 years. There has been considerable difficulty in getting CRs written after the lapse of so many years as most of the Reporting officers retired.” The affidavit discloses a deep-rooted malaise. It shows the style of functioning. The promotions are made without consideration of the claims of eligible persons. The Departmental Promotion Committees are not convened. The Confidential Reports are not recorded. The affidavit discloses a pathetic state of administrative lawlessness. It shows the style of functioning. The promotions are made without consideration of the claims of eligible persons. The Departmental Promotion Committees are not convened. The Confidential Reports are not recorded. The affidavit discloses a pathetic state of administrative lawlessness. We can only lament the inaction and indifference on the part of the authorities concerned. We hope, some day even the bureaucracy would try to perform its duties. 27. It has been contended on behalf of the petitioners that persons of outstanding ability alone can be appointed. The contention is well founded. However, what deserves notice is that under the provisions of the Indian Administrative Service (Appointment by Selection) Regulations, 1997 it has been specifically provided that “the suitability of a person for appointment to the service shall be determined by scrutiny of service records and personal interview.” Thus, consideration of the service record is essential. The authority has to complete the record and consider it. The Rule can be violated either by not considering the claim or by considering it on the basis of incomplete record. In the present set of cases, the provision has been violated in both in the ways. In the case of Mr. Senan, the claim was not considered at all. In the case of Mr. Sisupalan, the consideration was incomplete, as his complete record was not taken into consideration. This was an infraction of the Rules. 28. In spite of the above, Mr. Sudhakara Prasad has contended that the petitioner, having been appointed in the year 1998, should not now be dislodged from their posts. The contention is misconceived. On consideration of the matter, we find that there was no proper evaluation of the merits of the officers. In such a situation, the aggrieved parties had approached the Tribunal without any loss of time. The matter had been considered and decided by the Tribunal vide its order dated December 22, 2000. If the order of the Tribunal had been implemented, the petitioners would have been bound to vacate their offices immediately. However, the pendency of the proceedings before the Tribunal and in this Court has resulted in delay. The respondents are not to blame. They are not responsible for the delay. Delays of law cannot be used to deny them their due. Their interests cannot be allowed to be prejudiced for the mere fact that the petitioners have continued in office. However, the pendency of the proceedings before the Tribunal and in this Court has resulted in delay. The respondents are not to blame. They are not responsible for the delay. Delays of law cannot be used to deny them their due. Their interests cannot be allowed to be prejudiced for the mere fact that the petitioners have continued in office. The selection being invalid, the delay cannot defeat the rights. If the contention of the counsel were accepted, the decision would prove to be an incentive to delay. 29. Mr. Sudhakara Prasad has referred to the decisions of their Lordships of the Supreme Court in Munindra Kumar V. Rajiv Govil (AIR 1991 SC 1607) and Gujarat State Dy.Executive Engineers’ Association v. State of Gujarat [1994 Supp (2) SCC 591]. We have perused these judgments. In the first case, it was noticed by their Lordship in Paragraph 10 that the persons whose appointments were sought to be challenged had actually resigned from their previous appointments. Thus, interference by the Court would have resulted in their losing the jobs as well as the eligibility for future employment on account of having become over aged. In the second case, the Court had declined to interfere with the appointment of the persons whose names were borne on the waiting list. It may be that persons on the waiting list cannot claim the right to be appointed. However, there was no infirmity in the process of selection. Keeping in view the fact that the names were borne on the waiting list, the Court had refused to interfere with their continuance on the post. Thus, the decisions are clearly distinguishable. 30. Mr. Sudhakara Prasad has also referred to the decision of the Division Bench of this Court in Ajet Kumar V. K.V. Sunil Kumar [ILR 1993 (2) 765]. It is undoubtedly true that relying on the decision of their Lordships in Rajiv Govil’s case, the court had declined to interfere with the appointments made by the University to the posts of Overseer grade II. Even in this case, a direction for interviewing the three writ petitioners had been given. We do not find that the petitioners can derive any advantage from the decision and claim that they have a right to continue in the post of I.A.S. 31. No other point has been raised. 32. Even in this case, a direction for interviewing the three writ petitioners had been given. We do not find that the petitioners can derive any advantage from the decision and claim that they have a right to continue in the post of I.A.S. 31. No other point has been raised. 32. In view of the above, we find that the findings recorded by the Tribunal are in conformity with the material on record. The claims of the officers, who were eligible, were not properly considered. No proper selection can be said to have been made. Thus, we find no infirmity with the order of the Tribunal. Resultantly, all the four writ petitions are dismissed. The authorities shall now proceed in accordance with the Rules and directions given by the Tribunal forthwith. However, in the circumstances, we leave the parties to bear their costs. The original files and the photocopy of the proceedings, which were produced by Mr. Roy Chacko in a sealed envelope, have been returned to him after perusal.