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2012 DIGILAW 264 (MAD)

Union of India v. R. Vijaykumar, Ph. D. , IAS.

2012-01-12

ELIPE DHARMA RAO, M.VENUGOPAL

body2012
Elipe Dharma Rao, J.:-The first respondent, a 1978 batch IAS officer of Tamil Nadu cadre, has filed O.A.No.1320 of 2010 before the second respondent/ Tribunal praying to direct the respondent therein/the petitioner herein to consider his case for immediate posting including empanelment as Additional Secretary to Government of India on par with his batch mates and further direct the respondent therein/the petitioner herein to consider him for empanelment as Secretary without being held responsible for the delay in being posted as Additional Secretary. Since the second respondent/Tribunal has allowed the said Original Application, the respondent therein/ Government of India, has come forward to file this writ petition. 2. In terms of the provisions of Article 312 of the Constitution, the Indian Administrative Service, the Indian Police Service and the Indian Forest Service are all India Services, common to the Union and the States. Every State cadre of each of these services provides for a central deputation quota which in turn requires additional recruitment to be made to these services to provide for trained and experienced members of these services to serve on posts in the Central Government. This deputation will be done based on empanelment of the Officers, based on their merit and ability, further taking into consideration various aspects by a high level committee called Special Committee of Secretaries and the process is regulated by the provisions of the Central Staffing Scheme (CSS). 3. The case of the applicant/first respondent is that in spite of his meritorious services, his name was not empanelled as Additional Secretary to Government of India, whereas some of his batch mates were empanelled and since his representations, sent to the officials did not yield any fruitful result, much less a reply, he had to knock the doors of the Tribunal with the prayer, mentioned supra. 4. The claim of the applicant/first respondent was opposed by the Government of India/the petitioner herein on the ground that he was not empanelled as Joint Secretary earlier, so as to get himself eligible for empanelment as Additional Secretary and that his name was found below the bench mark and thus, since he did not satisfy the required qualifications, his name was not recommended for empanelment. It was also their case that the name of the applicant/first respondent was considered along with others during 2009 and 2010 and even on those occasions, his name was not recommended for empanelment as he did not satisfy the required qualification. 5. Mr.M.Ravindran, learned Additional Solicitor General of India, has argued that the first respondent's name could not be empanelled as his ACRs are found to be below the bench mark and that he was not empanelled as Joint Secretary to the Government of India. He further argued that no bias or malafides could be attributed to the Special Committee of Secretaries, a high level committee appointed for this purpose by the Government under the CSS. The learned Additional Solicitor General further argued that inclusion in the panel of suitable officers serving in various State cadres as Joint Secretary or Additional Secretary to Government of India is through the process of strict selection and after evaluation of such qualities as merit, competency, leadership, flair for participating in the policy formulation process and in its implementation and that posts in these level at the Central Government are filled according to Para 14 of the Central Staffing Scheme, and not be considered as promotional posts. He further argued that judicial review in cases of non-empanelment is limited and that the Court can only examine if the procedure for selection as adopted by the Government is unconstitutional or otherwise illegal or vitiated by arbitrariness and mala fides. 6. In support of his arguments, the learned Additional Solicitor General would rely on the following judgments of the Honourable Apex Court: 1. Union Of India vs. Samar Singh [ (1996) 10 SCC 555 = 1996 SCC (L&S) 1443] and 2. Satya Narain Shukla vs. Union Of India And Others [ (2006) 9 SCC 69 ]. 7. The first case relied on by the learned Additional Solicitor General, in Samar Singh's case, was a case of empanelment of an IAS officer under para 14 of the Central Staffing Scheme. In that case, the officer contended that the Committee constituted under the provisions of the Central Staffing Scheme had wrongly and unjustifiably not chosen his name for empanelment as Secretary to the Government of India. In that case, the officer contended that the Committee constituted under the provisions of the Central Staffing Scheme had wrongly and unjustifiably not chosen his name for empanelment as Secretary to the Government of India. In those circumstances, the Honourable Apex Court has held in para No.11 of the judgment as follows: "11.This would show that the Committee, keeping in view the record and experience including the conceptual and leadership abilities, achievements and potential for general management positions, had recommended 19 IAS officers for holding the post of Secretaries and 7 IAS officers for holding a non-secretarial post. Merely because the minutes of the Committee do not contain the reason for non-selection of the respondent does not mean that there has been no proper consideration of the merits and suitability of the respondent and as a result the selection is vitiated. From the minutes of the Special committee it is evident that in the matter of empanelment of officers the Special Committee has taken into account the criteria that are laid down for holding such selection in para 14 of the Central Staffing Scheme and, therefore, it cannot be said that the said selection is vitiated on account of non-inclusion of the name of the respondent in the panel." 8. In the second judgment, relied on by the learned Additional Solicitor General of India, the Honourable Apex Court has held the Central Staffing Scheme and in particular para 14 of the said Scheme is not ultra vires the Constitution and that the posts of Additional Secretary to Government of India and above are not promotional posts for IAS officers. Further, with regard to the argument advanced by the appellant therein before the Honourable Apex Court that the remarks made in the ACR were not communicated to him, in para No.29, the Honourable Apex Court has held as follows: "The appellant also argued that the remarks made in the ACR were not communicated to him. It was also urged by the appellant that this Court should direct the authorities to streamline the whole procedure so that even remarks like "good" or "very good" made in ACRs should be made compulsorily communicable to the officers concerned so that an officer may not lose his chance of empanelment at a subsequent point of his service. In our view, it is not our function to issue such directions. In our view, it is not our function to issue such directions. It is for the Government to consider how to streamline the procedure for selection. We can only examine if the procedure for selection as adopted by the Government is unconstitutional or otherwise illegal or vitiated by arbitrariness and mala fides." 9. Placing much reliance on the above judgments of the Honourable Apex Court, the learned Additional Solicitor General, would pray to allow the writ petition, setting aside the order passed by the second respondent/Tribunal. 10. On the contrary, Mr.S.Venkataramani, the learned senior counsel appearing for the first respondent/applicant would argue, at length, taking us through various averments made by the fist respondent/applicant before the Tribunal and also in the counter affidavit filed before us, that the Tribunal has rightly assessed the facts and circumstances of the case and having found that the below bench mark remarks in the ACRs of the applicant were not communicated to him, has observed, by following the dictum laid down by the Honourable Apex Court, that such remarks cannot be taken into consideration and has directed the Government to hold a Review Selection Committee. The learned senior counsel would further argue that both the judgments relied on by the learned Additional Solicitor General cannot be applied to the facts of the present case since both those cases pertain to an era where there were no empanelment guidelines and subsequent to the pronouncement of these judgments by the Honourable Apex Court, the Government of India have published the Empanelment Guidelines. He further argued that the Tribunal has narrated various instances in its order to arrive at the conclusion of directing the Government to conduct Review Selection Committee. On such arguments, he would pray to dismiss the writ petition. 11. On a thorough perusal of the entire materials placed on record and upon hearing both the parties at length, we are able to assess that there is no dispute with regard to the fact that the provisions of the Central Staffing Scheme, including para 14 thereto are held to be intra vires by the Honourable Apex Court in Satya Narain shukla case (cited supra) and that empanelment guidelines were framed in the year 2006 by the Government of India. From the pronouncements of the Honourable Apex Court it is also clear that until and unless there is arbitrariness in the process of empanelment, the Courts cannot interfere into such empanelment procedure followed by the Committee. 12. As has rightly been pointed out by the learned senior counsel appearing for the first respondent/applicant, both the above judgments relied on by the learned Additional Solicitor General of India were delivered when there were no empanelment guidelines and in fact, the empanelment guidelines have come into force in the year 2006, after the above judgment of the Honourable Apex Court in Satya Narain Shukla's case. 13. The objection raised on the part of the writ petitioner/Government of India for empanelment of the first respondent/applicant is that his ACRs are below the benchmark and that he was not empanelled earlier as Joint Secretary to Government of India. 14. With regard to the ACRs, now it is a settled principle of law that below the bench mark ACRs, which are not communicated to the employee, should not be taken into consideration. In Dev Dutt vs. Union Of India And Others [ (2008) 8 SCC 725 ], the Honourable Apex Court has held as follows: "36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no rule/G.O. requiring communication of the entry, or even if there is a rule/G.O., prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will over ride all rules or Government orders." "37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. Article 14 will over ride all rules or Government orders." "37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible." 15. In Abhijit Ghosh Dastidar vs. Union Of India And Others [ (2009) 16 SCC 146 ], a Three Judge Bench of the Honourable Apex Court, headed by the then Honourable Chief Justice of India, has held that 'when the bench mark "very good" is required for being considered for promotion, admittedly, the entry of 'good' which was not communicated to the appellant should not have been taken into consideration for being considered for further promotion to the higher post.' It was also held in this decision that non-communication of the entries of the ACRs has civil consequences since it affects the chance of promotion of the officers or to get other benefits. 16. In view of the above mentioned fact that the Empanelment Guidelines came into existence after the pronouncement of the judgment in Satya Narain Shukla's case, relied on by the learned Additional Solicitor General of India, and in view of the subsequent pronouncements by the Honourable Apex Court in Dev Dutt's case and Abhijit Ghosh Dastidar's case, we have no hesitation to hold that the petitioner/Government of India should not have taken into consideration the below bench mark ACRs of the applicant/first respondent, since, admittedly, they were not communicated to him and therefore, the dicta laid down by the Honourable Apex Court in Samar Singh's case and Satya Narain Shukla's case, relied on by the learned Additional Solicitor General of India, cannot come to the rescue of the petitioner. In fact, if we read all the above judgments of the Honourable Apex Court together (including the ones cited by the learned Additional Solicitor General) none could deny the fact that judicial review would lie, if there is arbitrariness in the decision of the authorities concerned. Since in the case on hand, reliance has been placed on the non-communicated below bench marks of the ACRs of the applicant by the Committee, which is illegal, such a decision of the Committee must be held to be arbitrary. Further more, it is also seen from the materials placed on record that many representations given by the applicant, explaining each and every instance of below bench marks recorded in his ACRs, remained unanswered by the authorities concerned. Hence, viewing from any angle, judicial review of such an illegal decision arrived at by the Committee is very well maintainable. 17. With regard to the other contention of the petitioner/Government of India that the applicant was not empanelled for Joint Secretary to the Government of India and hence, he cannot be empanelled for Additional Secretary to the Government of India, we are not able to appreciate this stand of the petitioner/Government of India for the simple reason that such non-empanelment is completely out of the knowledge and reach of the applicant. Furthermore, the applicant has pointed out that an officer, Mr.Arun Kumar Misra, was empanelled as Additional Secretary without empanelment as Joint Secretary. The reasons for such deviated empanelment of this particular officer are not explained before us by the petitioner. However, from the Empanelment Guidelines we are able to see that 'in case the selection process does not lead to adequate representation of categories like SC/ST, women, the North East and particular State cadres in the panel, the criteria for empanelment would be suitably relaxed to give due representation to these categories'. Therefore, even if we presume that the case of Mr.Arun Kumar falls within this relaxation, we do not know as to why the same principle has not been applied to the case of the applicant/first respondent. 18. Therefore, even if we presume that the case of Mr.Arun Kumar falls within this relaxation, we do not know as to why the same principle has not been applied to the case of the applicant/first respondent. 18. Though from the pronouncement of the Honourable Apex Court in Satya Narain Shukla's case, it is clear that the appointment of State cadre IAS officers for the post of Additional Secretary/Secretary to the Government of India does not amount to promotion, it cannot be denied that such positions carry higher professional challenges to the officers and therefore, it implies that getting empanelled for such challenging tasks is a dignity and honour for the officers. Further, empanelment to these posts can be considered as a recognition to the quality of services rendered and the caliber of the officers to meet new challenges. Perhaps, recognising this aspect also, the Empanelment Guidelines have been framed by the Government. 19. Therefore, viewing from any angle, we are not able to find any illegality or irregularity in the order passed by the Tribunal. Accordingly, this writ petition filed by the Administration is dismissed. No costs. Consequently, M.P.No.1 of 2011 is also dismissed. The petitioner is directed to comply with the order of the Tribunal within four weeks from the date of receipt of a copy of this order.