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NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO(s). 27982/2013

STATE OF GUJARAT                           Petitioner(s)                                 VERSUS NATVARLAL MOTILAL CHAVDA                   Respondent(s)

J U D G M E N T A.K. SIKRI, J.

The present special leave petition is filed against  the final judgment and order dated 18.12.2012 delivered  by the Division Bench of High Court of Gujarat in Special  Civil Application No. 2210 of 2005.  Vide the impugned  judgment, the Court has partly allowed the writ petition  and  has  granted  certain  consequential  benefits  to  respondent no. 1 interpreting the provisions of Indian  Administrative  Service  (Appointment  by  Promotion)  Regulations, 1955.  At the same time some strings, in the  nature of certain conditions, are attached as well.

Respondent no. 1 was directly recruited as Mamlatdar  in 1977 and then promoted as Deputy Collector in 1983 in  Class-I  cadre  of  Gujarat  Administrative  Service(GAS).  Thereafter, he was promoted as Additional Collector in  1995  and  transferred  and  posted  as  Secretary,  Slums  Clearance Board on 20.02.2003.  On 22.09.2003, the State  Government sent a proposal to the Union Public Service  

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Commission(UPSC)  and  the  Department  of  Personnel  and  Training,  Government  of  India  along  with  the  list  of  prospective candidates for selection and appointment in  IAS cadre and that list included at serial no. 6 the name  of respondent no. 1.  By notification dated 15.06.2004 of  the Government of India, through Department of Personnel  and Training, 10 members of the State Civil Service of  Gujarat  were  appointed  in  the  Indian  Administrative  service  against  the  vacancies  of  the  year  2003,  on  probation with immediate effect, until further orders,  under  Rule  8  of  the  Indian  Administrate  Service  (Recruitment) Rules, 1954 read with Sub-Regulation (1) of  Regulation  9  of  the  Indian  Administrative  Service  (Appointment by Promotion) Regulations, 1955 and Rule 3  of  the  Indian  Administrative  Service(Probation)  Rules,  1954.  And that list omitted the name of the respondent  no. 1, even though by notification of the same date, i.e.  15.06.2004, the select list of 11 State Civil Service  Officers, including respondent no. 1, was notified.  That  select list was approved by the UPSC and prepared by the  Selection Committee in its meeting held on 18.11.2003.

The position which emerges from the aforesaid is that  the name of respondent no. 1 herein was duly forwarded by  the State Government for induction in IAS cadre.  The  UPSC considered the names and selected 11 persons from  the State Civil Service Officers.  In this list, issued  vide notification dated 15.06.2004, name of respondent  no. 1 was included meaning thereby UPSC found him fit for  appointment  in  IAS  cadre.   However,  in  another  

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notification of the even date, name of the respondent was  excluded from appointment.  The reason given was that the  State Government had informed the UPSC vide its letter  dated  18.12.2003  that  it  had  decided  to  withdraw  the  integrity  certificate  in  respect  of  the  respondent  by  another letter dated 27.05.2004, the state Government had  also informed the UPSC that a charge-sheet was issued to  the respondent.  On that basis, UPSC had sent letter  dated 11.6.2004 to the Central Government pointing out  that it had approved the recommendations of the Selection  Committee  Meeting  held  on  18.11.2003,  with  the  modification that inclusion of the name of respondent no.  1 in the select list would be provisional and subject to  clearance of the disciplinary proceedings pending against  him  and  grant  of  integrity  certificate  by  the  State  Government.

Respondent  no.  1  challenged  his  exclusion  by  approaching the Central Administrative Tribunal in the  form of OA filed under Section 19 of the Administrative  Tribunal Act.  Taking note of the aforesaid developments,  the Tribunal did not interfere with the decision of the  Government  and  the  only  direction  given  was  to  expeditiously  bring  to  an  end  two  inquiry  proceedings  against him.

Feeling  dissatisfied  with  the  aforesaid  outcome,  respondent no. 1 challenged the order of the Tribunal by  means  of  writ  petitions  filed  in  the  High  Court  of  Gujarat under Articles 226 and 227 of the Constitution of  

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India.  His primary submission was that on 18.11.2003  when his candidature was considered, there was nothing  against  him  and  no  charge-sheet  was  issued  either.  Therefore, his name should not have been withheld merely  because some charge-sheet was issued much after the said  date.  He relied upon the judgment of this Court in Union  of  India Vs.  K.V.  Jankiraman 1991(4)  SCC  109.   His  further submission was that once he was found fit for  promotion  by  the  Departmental  Promotion  Committee  constituted by the UPSC and the recommendations of the  Selection  Committee  were  accepted  by  the  UPSC  and  no  inquiry was pending as on that date, he was entitled for  promotion.  And for this proposition, he relied on the  judgment  of  this  Court  in  Union  of  India Vs.Sangram  Keshari  Nayak 2007(6)  SCC  704.   He  also  referred  to  another judgment of this Court in Vijay Singh vs. State  of UP 2012(5) SCC 242 in support of his submission that  even  the  disciplinary  authority  cannot  legally  impose  punishment  of  withholding  integrity  certificate  unless  such punishment is provided in the relevant rules.

The case of the petitioner herein, before the High  Court, was that since respondent no. 1 had come under the  zone of consideration for promotion to higher grade in  the year 2003, his name was included in the proposal and  sent to the UPSC.  However, after the meeting of the  Selection  Committee  which  was  held  on  18.11.2003,  its  recommendation was received by the State Government from  the  UPSC.   It  had  come  to  the  notice  of  the  State  Government that certain preliminary inquiries were going  

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on/pending  against  respondent  no.  1  in  the  Tribal  Development  Department  and  on  careful  perusal  of  the  files and papers from that Department, the Government had  taken  a  conscious  decision  to  withhold  the  integrity  certificate  and  initiated  detailed  inquiry  into  the  allegations.  An IAS officer was entrusted with the task  and on the basis of preliminary inquiry conducted by him,  the  State  Government  had  decided  to  hold  the  regular  departmental  inquiry  for  which  charge-sheet  dated  25.5.2004 was served upon the respondent.  It was thus  pleaded that the respondent was not entitled to promotion  at that stage in view of the pendency of the inquiry.

After considering the aforesaid arguments and dealing  with them exhaustively, the High Court has allowed the  petition  of  respondent  no.  1  in  part  directing  his  promotion.  The High Court has taken into consideration  the  relevant  Rules  &  Regulations,  namely,  Indian  Administrative  Service(Recruitment)  Rules,  1954  into  consideration  and  Indian  Administrative  Service(Appointment by Promotion) Regulations, 1955 into  consideration and in particular, Regulations (3), (5),  (6), (7), (9) & (10) of Regulations, 1955.  After careful  analysis  thereof,  in  juxtaposition  with  some  of  the  Government of India’s decisions on these regulations, it  is pointed out that appointment by promotion from State  Civil  Service  to  Indian  Administrative  Service  is  by  selection by a Committee consisting of the Chairman of  the UPSC, the Chief Secretary of the State Government,  the senior-most officer of the IAS cadre other than the  

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Chief  Secretary,  the  Head  of  the  General  Administration/Personnel/Revenue Department of the State  Government not below the rank of Secretary to the State  Government and two nominees of GOI not below the rank of  Joint Secretary.  The date and venue of the meeting of  the Committee to make the selection is to be determined  by the UPSC.  According to Government of India's decision  under  Regulation  3,  the  Chief  Secretary  to  the  State  Government, who is the sponsoring authority in respect of  all eligible officers whose cases are placed before the  Selection  Committee  for  consideration,  is  required  to  record an integrity certificate, with reference to the  entries  in  annual  confidential  reports  of  the  officer  concerned.  Even after such certificate being recorded,  the  Selection  Committee  is  required  to  consider  the  question  of  suitability  of  the  officers  for  selection  with reference to their integrity and specifically record  in their proceedings that they were satisfied from the  remarks  in  the  confidential  reports  of  the  officers,  selected by them for inclusion in the select list, that  there was nothing against their integrity.  Thereafter, a  list of such members of the State Civil Service as are  held  by  the  Selection  Committee  to  be  suitable  for  promotion has to be prepared.  The Selection Committee  has to classify the eligible officers as “outstanding”,  “very good”, “good” and “unfit”, as the case may be, on  an overall relative assessment of their service records,  maintaining  inter se seniority of the officers in each  class.  The name of any officer included in such list has  to be treated as provisional, if the State Government  

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withholds the integrity certificate in respect of such  officer, or any proceedings, departmental or criminal,  are  pending  against  him,  or  anything  adverse,  which  renders him unsuitable for appointment to the service,  has come to the notice of the State Government.  That  provision for making or treating any name as provisional  is subject to Explanations-I and II of Regulation 5(5),  according  to  which  the  proceedings  can  be  treated  as  pending only if a charge-sheet has actually been issued  to the officer or filed in a court; and the adverse thing  which  came  to  the  notice  of  the  State  Government  rendering him unsuitable can be treated to have come to  the notice of the State Government only if the details of  the same have been communicated to the Central Government  and the Central Government is satisfied that the details  furnished by the State Government have a bearing on the  suitability of the officer and investigation thereof is  essential.  After the list is so prepared, it has to be  forwarded to the UPSC by the State Government alongwith  the records of all members of the State Civil Service  included in the list, the records of all members of the  State Civil Service who are proposed to be superseded by  virtue of the list and the observations of the State  Government on the recommendations of the Committee.  A  copy of the select list is also required to be forwarded  to the Central Government and the Central Government is  required  to  send  their  observations  on  the  recommendations  of  the  Committee  to  the  UPSC.  Thereafter, under Regulation 7, the UPSC has to consider  the select list alongwith the documents received from the  

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State  Government  and  the  observations  of  the  Central  Government  and,  unless  it  considers  any  changes  necessary, approve the list.  If the Commission considers  it necessary to make any changes in the list, it has to  inform the State Government of the changes proposed and  after taking into account the comments, if any, of the  State Government and the Central Government, the UPSC may  approve the list finally with such modifications, if any,  as may, in its opinion, be just and proper.  The list so  finally approved by the Commission would be the “Select  List” of the members of the State Civil Service.  If an  officer whose name is included in the select list is,  after such inclusion, issued a charge-sheet or a charge- sheet is filed against him in a court of law, his name in  the  select  list  shall  be  deemed  to  be  provisional.  Thereafter,  under  Regulation  9(1),  appointment  of  a  member of the State Civil Service has to be made by the  Central Government in the order in which the names of the  members of the State Civil Service appeared in the select  list.  In case of an officer whose name has been included  or  deemed  to  be  included  in  the  select  list  provisionally, under the proviso to sub-regulation (5) of  Regulation 5 or under the proviso to sub-regulation (3)  of Regulation 7, as the case may be, his appointment has  to  be  made  within  60  days  after  the  name  is  made  forwarded by the Commission in terms of the first proviso  to sub-regulation (4) of Regulation 7.  Thus, there are  two stages at which inclusion of name in the list of the  recommended officers could be made provisional; the first  stage is before the list is forwarded to the UPSC by the  

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State  Government,  subject  to  fulfillment  of  the  conditions contained in the Explanations to Regulation  5(5).  And the second stage for making a name provisional  under  Regulation  7(3)  is  when  the  Commission  finally  approves  the  list  after  consideration  of  the  list  prepared  by  the  Selection  Committee,  the  documents  received from the State Government and the observations  of  the  Central  Government.   Such  latter  provisionalisation  of  the  name  included  in  the  Select  List  is  subject  to  the  condition  that  the  officer  concerned is issued with the charge-sheet or a charge- sheet is filed against him in a court after his name  being included in the Select List finally approved by the  UPSC.

Even  after  inclusion  of  an  officer  in  the  final  Select List, the Central Government may not appoint an  officer if it is of the opinion that it is necessary or  expedient so to do in the public interest.  However, such  plenary powers conferred upon the Central Government by  Regulation 10, with an opening non-obstante clause, are  subject to the proviso that no such decision shall be  taken by the Central Government without consulting the  UPSC.  It is clear from the language in which Regulation  10  is  couched  that  the  special  power  of  the  Central  Government to deny appointment to any person, whose name  appears in the select list is conditional and could be  exercised  only  if  an  opinion  is  formed  that  it  is  necessary or expedient so to do in public interest and  even after forming such opinion, the final decision could  

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be taken only after consulting the UPSC.

Having  regard  to  the  aforesaid  legal  position  emerging from the reading of the relevant Regulations,  the  High  Court  was  of  the  opinion  that  promotion  of  respondent no. 1 should not be withheld merely because of  the reason that much after the meeting of the Selection  Committee, a charge-sheet was served upon him.  Position  in  this  respect  is  summed  up  by  the  Court  in  the  following manner:-

“As  seen  above,  admittedly,  the  integrity  certificate  in  respect  of  the  petitioner was not “withheld”, but it was  sought to be withdrawn after one month of  the meeting of the Selection Committee on  18.11.2003,  and  the  charge-sheet  having  been issued to the petitioner as late as  on 25.5.2004, inclusion of the petitioner  in  the  list  prepared  by  the  Committee  could  not  legally  be  treated  as  provisional  under  the  proviso  to  Regulation 5(5).  Thus, the intimation by  the State Government for withdrawing the  integrity  certificate  could  not  legally  result, at the first stage, into treatment  or inclusion of the petitioner’s name in  the list as provisional.  The second stage  for deeming inclusion of the petitioner’s  name  to  be  provisional  came  under  

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Regulation 7(3) only after 11.6.2004 when  the  UPSC  approved  recommendation  of  the  Selection Committee with the modification  that inclusion of the petitioner in the  select  list  shall  be  provisional.  Assuming  that  all  the  formalities  and  procedure prescribed under Regulations 6,  6-A and 7(2) were duly complied with by  the UPSC, the name of the petitioner in  the  select  list  could  be  deemed  to  be  provisional  only  if,  after  inclusion  of  his name in the select list, a charge- sheet were issued.  That being not the  case and charge-sheet having already been  issued on 25.5.2004 prior to approval and  finalization  of  the  select  list  on  11.6.2004,  the  provisions  of  Regulation  7(3) could not be pressed into service to  deny to the petitioner appointment on the  promotional  post  under  the  mandatory  provisions of Regulation 9(1).  It is not  the  case  of  the  respondent  that  the  Central  Government  had  exercised  its  powers  under  Regulation  10  and  the  mandatory  provisions  for  consulting  the  UPSC were complied with.  In that view of  the matter, it would clearly appear that  the State Government had made an imperfect  and preemptive attempt at provisionalising  the  name  of  the  petitioner,  after  his  

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selection  by  the  Selection  Committee  consisting,  inter alia, of three of very  senior civil servants, including the Chief  Secretary,  and  examination  by  the  Committee in particular of the aspect of  integrity of the petitioner as required by  GOI’s decision under Regulation 3.  The  notifications  dated  15.6.2004  notifying  the  select  list  and  making  appointments  and  the  subsequent  corrigendum  dated  16/19.7.2004 also strengthen the inference  that initial withdrawal of the integrity  certificate,  issuance  of  charge-sheet  dated 25.5.2004 and intimation thereof on  27.5.2004  were  aimed  at  excluding  the  petitioner  from  the  list  of  appointees,  even as it is not established that the  charges leveled against the petitioner had  a  bearing  on  the  suitability  of  the  petitioner for promotion and the Central  Government  was  satisfied  that  investigation  into  the  charges  was  essential.  In fact, the State Government  has sought to prop up its objections to  promotion of the petitioner by confusing  “withholding” of the integrity certificate  with  its  “withdrawal”,  on  the  basis  of  something  adverse  against  him  coming  to  notice  of  the  Government  after  recommendation  of  his  name  by  the  

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Selection Committee; and compliance with  Explanation-II  to  proviso  to  Regulation  5(5) is not even pleaded.  In any case,  the  notification  dated  15.6.2004  under  Regulation  7(3)  notifying  that  the  petitioner  was  included  in  the  final  select list approved by the UPSC could not  have legally been made provisional under  Regulation 7(3) as discussed hereinabove  and the conditions contained in Regulation  7(4) could not legally be imposed as was  sought to be done by the corrigendum dated  16/19.7.2004.  Therefore, the conclusion  arrived at in the impugned order of CAT  that “…the latter developments could have  been taken into consideration for making  his  name  provisional  and  there  was  an  administrative error in including the name  of  the  applicant  in  the  select  list  without showing the word provisional” was  superficial,  erroneous  and  illegal  and  hence required to be set aside.”   

It is in the aforesaid circumstances that the  High Court took the view that the decision of the  petitioner  herein  withdrawing  the  integrity  certificate  and  that  of  the  UPSC  which  was  accepted  by  the  Union  of  India  in  making  the  promotion of respondent no. 1 herein provisional  was  bad  in  law  and  not  permissible  under  the  

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extant regulations.

Even while setting aside the decision of the  Central  Administrative  Tribunal,  in  the  writ  petition  which  is filed  by  respondent  no.  1  against  the  penalty  imposed  pursuant  to  the  departmental  proceedings  held  against  him,  the  High Court has clearly stated that respondent no.  1  herein  would  claim  such  benefits  as  consequential relief only in case he is exonerated  fully in the departmental inquiry.

Thus, the effect of the aforesaid direction  giving  him  the  relief  only  in  case  he  is  exonerated under the departmental inquiry would be  that  respondent  no.  1  would  be  entitled  to  promotion, and the consequential benefit in case  the penalty imposed against him stands.  In view  of that, it may not be necessary to entertain this  petition  in  exercise  of  our  jurisdiction  under  Article 136 of the Constitution of India.  We may  record at this stage that respondent no. 1 had  filed special leave petition against the aforesaid  judgment  apportioning  the  relief  portion.  Respondent  no.  1  wanted  to  get  the  benefit  of  promotion irrespective of the outcome of the writ  petition pursuant to the departmental proceedings  against him.  That SLP has been dismissed by this  Court.   

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However, learned counsel for the petitioner  has  two  apprehensions  in  mind.   In  the  first  instance, it is argued that in the writ petition  which is filed by respondent no. 1 challenging the  imposition of penalty, the observations made by  the High Court in the impugned judgment may not  come in the way of the petitioner.  It is further  argued that, according to the petitioner, the High  Court  has  not  dealt  with  the  regulations  appropriately and the interpretation given by the  regulations is incorrect and the impugned judgment  may not be cited in future.   

Insofar  as  first  submission  is  concerned,  Mr. Sanjoy Ghose, learned counsel for respondent  no.  1  fairly  submits  (there  cannot  be  any  exception thereto even otherwise) that the writ  petition  which  is  filed  by  respondent  no.  1  against the departmental proceedings, has to be  dealt with by the High Court on its own merits  uninfluenced  by  the  observations  made  in  the  impugned judgment as the subject matter of the  impugned judgment was entirely different.

Insofar  as  second  aspect  is  concerned,  Mr.  Sanjoy  Ghose,  learned  counsel  again  stated  that he has no objection if the question of law,  that  is,  the  question  relating  to  the  interpretation of the regulations, is kept open.  It is ordered accordingly.

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As respondent no. 1 has already retired from  service, we request the High Court to decide the  writ  petition  filed  by  respondent  no.  1  as  expeditiously  as  possible  preferably  within  six  months.

The  special  leave  petition  is  disposed  of  accordingly.   

…………………………………………J. (J. CHELAMESWAR)

………………………………………..J. (A.K. SIKRI)

NEW DELHI AUGUST 12, 2014.

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