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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10854 OF 2014

Union Public Service Commission       ..Appellant

Versus

M. Sathiya Priya and others . .Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

1. This appeal is directed by the Union Public Service

Commission (for short,  ‘UPSC’) against the judgment and order

dated 24.06.2013,  passed by the  High Court  of  Judicature  at

Madras  in Writ Petition No. 15367 of  2010, whereby the High

Court has dismissed the aforesaid writ petition filed by the UPSC

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and confirmed the order of the Central Administrative Tribunal,

Chennai Bench, Chennai (for short, ‘CAT’), dated 07.04.2010

directing the official  respondents to consider the name of  the

first respondent herein for appointment to the IPS by taking into

account the service records for the period from 1.4.2003 to

31.3.2008, and appoint her to the IPS by notionally treating such

appointment with effect from the   date of notification, i.e.,

5.5.2009, and also by giving appropriate place of seniority to the

first respondent amongst the private respondents.

2. Brief facts leading to this appeal are:

The  first respondent (contesting  respondent)  was appointed as

Deputy Superintendent of Police in the State of Tamil Nadu; she

joined for duties on 26.05.1997; she was promoted as

Superintendent of Police on 10.06.2006 and has worked at

different places on the said post.   In the seniority list of State

Police Service (for short  ‘SPS’) Officers, the first respondent, at

the given point of time, stood at serial No.11.   Since the fourth

person in the seniority list was over­aged, the first respondent

was effectively considered at serial No.10 in the seniority list for

the  purpose  of this  case.  For the  year  2008, there  were ten

vacancies for SPS to the Indian Police Service (for short,  ‘IPS’),

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which is an All India Service.  The appointment by promotion to

the IPS is governed by the IPS (Appointment by Promotion)

Regulations,  1955  (hereinafter  referred to as the  ‘Regulations’).

The zone of consideration is three times the number of vacancies

and, therefore, at least thirty names ought to be considered for

appointment to the IPS.  The names of the first thirty officers in

the SPS including the name of the first respondent, were placed

before the Selection Committee for consideration for appointment

to the IPS for the year 2008.   The name of the first respondent

was considered at serial No. 9 in the zone of consideration.   On

an oral assessment of her service records, the Selection

Committee graded the first respondent as “Good”.   On  the basis

of  this grading, she could not be  included  in the select  list of

2008 due to the statutory limit of its size and the availability of

officers with higher grading for inclusion in the select list.

Though, at an earlier point of time, it was found that disciplinary

proceedings were pending against Srimati V. Jayashree

(respondent no.6 herein), subsequently on being cleared by the

disciplinary authority, the Government of India issued a

notification appointing Srimati V. Jayashree also to the IPS.

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Thus, all the ten vacancies were filled by the Government of India

including that of respondent no.6 herein.

3. Aggrieved by the non­inclusion of her name in the select list

of 2008, the first respondent filed Original Application No. 441 of

2009 before the CAT, inter alia contending that on valid

assessment of her service records, the Selection Committee ought

to have graded her as “Outstanding” or at least “Very Good”, and

in that event she would have been selected for appointment to

the IPS. She also contended that her service records are better

than those of  almost  all the private  respondents and that the

Selection Committee had acted in an arbitrary manner in making

the selection by superseding her for appointment to the IPS.

4. The CAT allowed the Original Application No. 441 of 2009

filed by the first respondent herein by its judgment dated

07.04.2010.   The judgment of the CAT is confirmed by the High

Court of Judicature at  Madras in  Writ Petition  No.  15367 of

2010, vide impugned judgment and order dated 24.06.2013.  The

judgments of the CAT and the High Court are called in question

in this appeal by the UPSC.

5. There cannot be any dispute that the UPSC discharges the

functions and  duties assigned to it under Article 320 of the

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Constitution.  By virtue of the provisions in the All India Services

Act, 1951, separate recruitment rules have been framed for the

IAS/IPS/IFS.   In pursuance of Sub­rule (1) of Rule 9 of the IPS

(Recruitment) Rules, 1954, the IPS (Appointment by Promotion)

Regulations, 1955 have been framed.   The method of

appointment is provided in Regulation 5, which reads thus:

“5. PREPARATION OF A LIST OF SUITABLE OFFICERS:­

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

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

a. there are no substantive vacancies as on the first day of January of the year  in the posts  available for the members of the state Police Service under rule 9 of the recruitment rules; or

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b.  the Central Government in consultation with the State Government decides that no recruitment shall be  made  during the year to the substantive vacancies as on the first day of January of the year in the posts available for the  members of the State Police Service under rule 9 of the Recruitment Rules;

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

EXPLANATION:­ In case of Joint Cadres, a separate select list shall be prepared in respect of each State Police Service.

5(2) The Committee shall consider for inclusion to the said list, the cases of members of the State Police Services  in the order of seniority  in that service of a number which is equal to three times the number referred in sub­regulation (1).

Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers;

Provided further that in computing the number for inclusion in the field of consideration, the number of officers

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referred to in sub­regulation (3) shall  be excluded;

Provided also that the Committee shall not consider the case of a member of the State Police  Service  unless on the first day of January of the  year for  which the Select List is  prepared he is  substantive in the State Police Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent thereto by the State Government.

Provided also that in respect of any released Emergency Commissioned or Short Service Commissioned officers appointed to the State Police Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the 1st day of January of the  year for  which the Select List is prepared, in the post of Deputy Superintendent  of  Police  or in  any  other post  or  posts  declared  equivalent thereto by the State Government.

EXPLANATION: The powers of the State Government under the third proviso to the sub­regulation shall be exercised in relation to the members of the State Police Service of constituent State, by the Government of that State.

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5(2)(A) Deleted.

5(3) The Committee shall not consider the cases of the members of the State Police Service who have attained the age of 54 years on the first day of January of the year for which the Select List is prepared:

Provided that a member of the State Police Service whose name appears in the Select List prepared for the earlier year before the date of the meeting of the Committee and who has not been appointed to the service only because he was included provisionally in that Select List shall be considered for inclusion in the fresh list to be prepared by the Committee, even if he has in the meanwhile, attained the  age of fifty four years.

Provided further that a member of the State Police Service who has attained the age of fifty four years on the  first  day of January of the  year for  which the Select List is prepared shall be considered by the Committee, if he was eligible for consideration on the first day of "January of the year or any of the years immediately preceding the year in which such meeting is held but could not be considered as no meeting of the Committee was held during such preceding year  or  years under  item (b) of the proviso to sub­regulation(1)".  

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

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

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Provided that he shall be considered for inclusion in the Select List, if before the commencement  of the  year,  he  applies in writing, to the State Government expressing his unwillingness to be considered for appointment to the service;

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

5(4) The Selection Committee shall 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.

5(5) The List shall be prepared by including the required  number  of  names first from amongst the officers  finally  classified as "Outstanding" then from amongst those similarly classified as "Very Good" and thereafter from amongst those similarly classified as "Good" and the order of names inter­se within each category shall be in the order of their seniority in the State Police Service.

Provided that the name of an officer so included in the list shall be treated as provisional if the State Government withholds the  integrity  certificate in respect  of  such an officer or any proceedings, departmental or criminal are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government.

Provided further that while preparing yearwise select lists for more than one year pursuant to the 2nd proviso to sub regulation (1), the officer included provisionally in any of the Select List so prepared shall be considered for inclusion in the Select List of subsequent year in addition to the normal consideration zone and in case

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he is  found fit for inclusion in the suitability list  for that year on a provisional basis such inclusion shall be in addition to the  normal size of the select list determined by the Central Government for such year.

EXPLANATION I: The proceedings shall be treated as pending only if a charge­sheet has actually been issued to the officer or filed in a Court as the case may be.

EXPLANATION II: The adverse thing which came to the  notice of the  State  Government rendering  him unsuitable for  appointment to the service shall be treated as having come to the notice of the State 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.

5 (6)  Omitted.

5 (7)  Deleted.”

6. Ms. Binu Tamta, learned counsel representing the appellant

herein, while taking us to the material on record, submits that

the  CAT, as  well as the  High  Court,  has fallen into error  by

virtually assessing the performance of the first respondent as an

appellate authority and that too  wrongly; they have erred in

taking into consideration the Annual Confidential Reports from

1.4.2003 to 31.03.2008; the relevant Annual Confidential Reports

to be considered for the purpose of the selection in question were

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from 1.4.2002 to 31.03.2007, the Selection Committee has rightly

taken into consideration the Annual Confidential Reports of those

years only,  and therefore the  impugned  judgments  are bad  in

law; the selection is to be made by the Selection Committee not

only based on Annual Confidential Reports in respect of the

concerned officer but also based on other relevant factors

including the examination of service records of the officer in

comparison to the other officers in the eligibility list/zone of

consideration and on the basis of overall relative assessment.

Contrary to the afore­mentioned procedure prescribed and

being followed throughout, the CAT, as well as the High Court,

has decided the matter purely on the basis of the grading found

in the Annual Confidential Reports of the first respondent, and

that too of the year 01.04.2003 to 31.03.2008.

7. Per contra, Shri Venkatramani, learned senior counsel

argued in support of  the  judgments of the CAT as well  as the

High Court contending that the service record of the first

respondent   has been mostly “Outstanding” throughout till

31.03.2008, or even till 31.03.2007; the first respondent ought to

have been graded as “Outstanding” or at least “Very  Good”;

absolutely no reasons are assigned to supersede the first

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respondent by making the appointment of her juniors in

preference to the first respondent; the other private respondents

were graded as “Very Good” but none of the six juniors selected

had the “Outstanding” grading in their service records, and some

of them did not even have the “Very Good” grading; the Selection

Committee and the UPSC have not objectively evaluated the first

respondent in accordance with the regulations, and hence the list

prepared which was impugned before the CAT was rightly

modified with a direction to appoint the first respondent in IPS.

Relying upon the judgment in the case of R.S. Dass vs. Union of

India and  others  1986 (Supp)  SCC 617, he contended that

Regulation  5 examines the role of seniority in the  process  of

selection, and importance and primacy was given to merit.   The

categorisation of meritorious candidates is done on the basis of

service records including Confidential Character Roll as

mentioned by senior officers holding high positions.   He further

contended that it cannot be said now­a­days, if one is aware of

the facts and currents of life, that simply because categorization

and judgment of the service records of officers are in the hands of

senior officers, it is a sufficient safeguard.   There has been

considerable erosion in the intrinsic sense of fairness and justice

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in some of the senior officers.  From instances of the conduct of

many, some of the senior officers and men in high position, it

cannot be said that such thinking on the subject of erosion is not

wholly unjustified.  Selection on merits confers wide discretion on

the authority making the selection, and in the absence of reasons

there would be no objectivity, and the members of the State Civil

Service might receive discriminatory treatment by the Selection

Committee.   On these, among other things, he prayed for

dismissal of the appeal.

8. This  Court in the  case  of  R. S.  Dass vs  Union of India

(supra)  has observed that in order to rule out any grievance,

actual or fancied, some objective basis for categorisation in the

manner indicated should be laid down.  If such objective basis is

made known, and after categorisation the selection of junior

officers in preference to senior officers is  made, the  Selection

Committee need not state reasons, and the same would not be

violative of the canons of justice.   In order to  ward off any

suspicion in the minds of the candidates, this Court suggested to

the government and the authorities concerned that there should

be  some basis for the  categorisation  of the  officers, and such

basis should be objective and not merely subjective evaluation,

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and furthermore such basis should be formulated in the form of

guidelines.   Pursuant to such observations made by this Court,

the Central Government framed guidelines which have to be

followed by the Selection Committee and the UPSC.  The relevant

parts of the Guidelines, as on 12.03.2008, are as under:

“2.1 For preparing the Select Lists, the crucial date for reckoning the eligibility of officers is taken with respect to the first day of the “year” as defined under Regulation 2(1)(l) of the IAS (Appointment and Promotion) Regulations, and which is presently the calendar year.   The year in which the Selection Committee actually meets {i.e. SCM year} is co­ terminus with the definition under Regulation 2(1)(l). Further, in these Guidelines, while reference is made to the provisions of the IAS (Appointment by Promotion) Regulations, the corresponding provisions of the IPS  & IFS  Regulations  would be  applicable while preparing the IPS & IFS Select Lists respectively.  

2.2 As per the provisions of the Promotion Regulations,  where year­wise Select Lists are being prepared by the Selection Committee, the crucial date for determining the eligibility of the officers  is taken as on 1st  January of the Select List year and the notional due date for preparing the Select List of an earlier year is taken  as 31st  December of that Select List year for reckoning the availability of eligible  officers.  For the Select  List  of the current year, the availability of eligible officer is reckoned on the date of the Selection Committee Meeting.  

2.3 In accordance with Regulation 5(4) of the Promotion Regulations, the Selection Committee has to classify the eligible officers as ‘Outstanding’, ‘Very Good’, ‘Good’  or ‘Unfit’ as the  case  may  be  on an

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overall relative assessment of their service records (i.e.  ACRs and the  documents  kept therein  by the competent authority).  For making an overall relative assessment, the committee will not depend solely on the grading recorded by the reporting/reviewing/accepting authority but will make its independent assessment of the service records of the eligible officers as per the procedure indicated below.  

3.1 The Selection Committee would go through the service records of  each of the eligible officers,  with special reference to the performance of the officer during the last five years, preceding the year for which the Select List is prepared and after deliberation will record the assessment of the Committee in the Assessment Sheet comprising the Assessment Matrix [Officer x Year­wise assessment] and the column for Overall Assessment of the officers.  

3.2 As the crucial date for preparation of the Select List is 1st January of the year of the Select List, the ACRs upto the year ending 31st March (where ACRs are  written on a financial year­wise basis) or 31st

December (where ACRs are written on calendar year­ wise basis) of the year preceding the year of the Select List are to be taken into consideration by the Selection Committee.  

4.1 The Selection Committee will go through the records of the eligible officers and make their assessment  after  deliberating  on  the  quality  of the officer as indicated in the various columns recorded by the Reporting/Reviewing Officer/ Accepting Authority in  the ACRs for different years and then finally arrive at  the classification to be assigned to each  officer.  The  Selection  Committee  would take into account orders regarding appreciation for the meritorious work done by the concerned officers. Similarly it would also keep in view orders awarding

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penalties or any adverse remarks communicated to the officer, which, even after due consideration of his representation, have not been completely expunged.  

4.2 The  Selection  Committee  would  not  be guided merely  by  the  overall  grading, if  any, that  may be recorded in the ACRs but would make its own assessment on the basis of the entries in the ACRs because sometimes the overall grading in an  ACR may be inconsistent with the grading under various parameters or attributes.   Further, if the Reviewing Authority or the Accepting Authority, as the case may be,  has  differed  from the  assessment  made by the reporting officer or  the Reviewing Authority,  as the case  may be, the remarks of the latter authority should be taken as the final remarks for the purpose of assessment provided it is apparent from the relevant entries that the higher authority has come to a different assessment consciously after due application of mind.  If the remarks of the Reporting Officer, Reviewing Authority are complementary to each other and does not have the effect of overruling the other, then the remarks should be read together and final assessment made by the Selection Committee as indicated in para 4.1.   This is also in accordance with the  DPC guidelines  of  DOP&T,  as contained in its OM No. 22011/5/86­Estt.(D) dated 10.04.1989 as amended from time to time.  

4.4 While finalising the  Overall  Assessment of the officers [para  3.1  above refers], an  officer shall  be graded as:

A. “Outstanding”, if in the opinion of the Selection Committee, the service records of the officer reflect that he is of outstanding  merit possessing exceptional attributes and abilities and these characteristics are reflected in at least four of the ACRs for the last five years including the ACR for the last year (i.e. upto the preceding year for which the Select List is prepared) provided he is graded at least “Good” in the ACR

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of the remaining year.   While grading an officer as “Outstanding”, the following indicative guidelines would be observed.  

(i) Whilst the overall grading in the ACRs will have its relevance, however, in order to have a final view, it will be essential to carefully peruse and assess all the individual attributes/columns in the ACRs like,  Work Performance,  Targets  Achieved, Supervision, Managerial capabilities, personality traits etc. before the Committee decides to grade an officer as ‘Outstanding’.

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

(iii) Considering the fact that such ‘Outstanding’ officers are going to supersede other officers, there is a greater need to ensure that such an officer has met the stringent norms of being graded as ‘Outstanding’.   For such purposes, the ACRs of the concerned officer should elaborate his significant achievements or exceptional nature of work in the areas of law and order, disaster management, implementation of developmental schemes etc.  

(iv) Postings are not within the competence of an officer for which he ought not to be discriminated.   However, the Committee may also like to examine the various positions that such ‘Outstanding’ officers have occupied and the nature of duties

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performed by him over the years in the process of assessing the officer.  

B. “Very Good”, if in the opinion of the Selection Committee,  his  ACRs  reflect that the officer has done highly  meritorious work and possesses positive attributes and these characteristics are reflected in at least four of the last five  ACRs  (i.e.  upto  the preceding year for which the Select List is prepared) provided he is graded at least “Good” in the ACR of the remaining year.  

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

D. An officer may be categorised as “Unfit”  if his reports are lacking any positive merit or whose performance is not generally satisfactory or if there are entries in some of the latest ACRs which adversely reflect on his suitability for promotion of if the ACRs contain orders of penalty which in the opinion of the Selection Committee  would render the officer  unsuitable for promotion.”

Paras 2.1 and 2.2 of the Guidelines are relating to the fixing

of crucial dates for determining the eligibility of the officers i.e. 1st

January of the select list year.  Para 2.3 declares that the overall

relative assessment will not solely depend on the grading

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recorded by the  Reporting/Reviewing/Accepting  Authority, but

the Selection Committee will make its own independent

assessment of the service records.   Para 3.1 deals with scope of

assessment.   The Selection Committee will consider the

performance of each of the officers, i.e., service records during the

last five years, preceding the year for which the selection list is

prepared.   Para 3.2 states that as the crucial date for reckoning

the eligibility of the officers is 1st January of the select list year,

the Annual Confidential Reports up to the year ending 31st March

of the year preceding the year of selection list are to be taken into

account.  Para 4.1 prescribes the procedure for assessment. The

said guideline mandates  that  the Selection Committee shall  go

through all the relevant records and make its assessment after

deliberating on the quality of the officer as indicated in various

columns in the  Annual  Confidential  Reports, and then finally

arrive  at the conclusion.  Para 4.2 specifies  that the Selection

Committee would not be guided merely by the overall grading in

the Annual Confidential Report, but would make its own

assessment on the basis of all entries in the Annual Confidential

Report, because sometimes the overall grading in an ACR may be

inconsistent with the grading under various parameters or

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attributes.  This virtually means that the Selection Committee will

not act as a post office but will take a decision on due application

of mind.   Para 4.4 mentions the overall

assessment/categorisation of officers.   It states that while

finalising the overall assessment of the officers as per para 3.1,

an officer shall be graded as “Outstanding”, “Very Good”, “Good”

and “Unfit”.   The para states in detail  as to how such grading

should be assigned, and on what basis.   

9. The Regulations as well as the Guidelines are to be applied

jointly at the time of making the selection list.  In our considered

opinion, the Regulations and the Guidelines jointly prescribe

adequate procedure and they form a complete code in themselves.

In accordance with  the provisions of the  Regulations and

Guidelines, the Selection Committee, presided over by the

Chairman/Member of the UPSC, makes a list for the selection of

SPS Officers for promotion to the IPS.    As per Regulation 5(1) of

the Regulations, the number of members of the SPS to be

included in the Select List   of a particular recruitment year for

promotion to the IPS, is determined by the Government of India

(Ministry of Home Affairs) in consultation with the State

Government concerned, keeping in mind the number of

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substantive vacancies as of 1st January of the year the Selection

Committee meets. Thereafter, the State Government forwards a

proposal to the UPSC along with the Seniority List, an Eligibility

List (up to a maximum of three times the number of vacancies) of

the SPS Officers, Integrity Certificates, certificates regarding

disciplinary/criminal proceedings, certificates regarding

communication of adverse remarks, details of penalties imposed

on the eligible officers etc. and complete  ACR dossiers of the

eligible officers.

On receipt  of the afore­mentioned records  from the State

Government, the UPSC places such records before the Selection

Committee when the Selection Committee meets for selection for

the recruitment year.   In accordance with the provisions of

Regulation 5(4) of the Regulations, the Selection Committee

classifies the eligible SPS Officers included in the zone of

consideration as “Outstanding”, “Very Good”, “Good” or “Unfit”,

as the case may be, on an overall  relative assessment of their

service records. Thereafter, the Selection Committee prepares a

list as per the provisions of Regulation 5(5) of the Regulations by

including the required number of names first  from the officers

finally classified as “Outstanding”, then from amongst those

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similarly classified as “Very Good” and thereafter from amongst

those  similarly  classified  as “Good”.  As  per the  provisions  of

Regulations  6  and 6A, the  State  Government  and  the  Central

Government  are required to furnish their observations  on the

recommendations of the Selection Committee.   After taking into

consideration the observations of the State Government and the

Central Government and the requisite records received from the

State Government or the Central Government, the Commission

will take a final decision on the recommendations of the Selection

Committee with or without modifications in terms of the

provisions of Regulation 7.   Appointments to the IPS are made

from the select list by the Government of India (Ministry of Home

Affairs).   From the afore­mentioned, it is clear that complete

procedure is prescribed for selection and appointment to the IPS

cadre from the SPS.

10. As mentioned  supra, it is the contention of the first

respondent that the Selection Committee ought to have graded

her as “Outstanding” or at least “Very  Good”, on an overall

relative assessment of her service records, and consequently she

would have been selected for the year 2008.  It is her  further

contention that on a comparative assessment of her service

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records with those of the private respondents, who were junior to

her, she could not have been excluded from the selection list as

her service records are better than those of almost all of them.

Thus, according to her, the Selection Committee has acted

expressly in an arbitrary manner in the said process of selection

by superseding the first respondent.

11. The CAT and the  High Court  have virtually  assessed the

performance of the first respondent  afresh,  mainly taking  into

account the service records for the period from 1.4.2003 to

31.03.2008, and have directed the official respondents to appoint

her to the IPS by notionally treating such appointment with effect

from the date of notification,  i.e.,  with effect  from 5.5.2009 by

giving her appropriate place of seniority amongst the private

respondents.

12. In our considered opinion, the error that crept into the

findings of the Tribunal, as confirmed by the High Court, was on

account of the basic fact that they erred in not properly

appreciating the span/scope of selection by a Selection

Committee. For the purpose of consideration of a candidate for

selection to the IPS in respect of the select list of 2008, the

Annual Confidential Reports from 1.4.2003 to 31.03.2008 could

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not have been taken into account by the Selection Committee, as

observed by the CAT and the High Court.  As per para 3.1 of the

Guidelines, the assessment of the eligible officers is with special

reference to the performance of the officer during the  last  five

years, preceding the year for which the select list is prepared. As

the crucial date for determining the eligibility of  the officers  is

taken 1st January of a particular year for which the selections are

being made, the Annual Confidential Reports upto the year

ending 31st March of the year preceding the year of selection list

are to be taken into account as per   para 3.2 of the Guidelines.

In the matter on hand, the selection list was to be prepared for

the year 2008.  Thus, the crucial date for reckoning the eligibility

of the officers in the  matter on hand is 1st  January, 2008.

Accordingly, the Annual Confidential Reports upto the year

ending 31st March, 2007 i.e., the year preceding the year of the

selection list, are to be taken into account.  As mentioned supra,

the  Selection  Committee  will consider the  performance of the

officer i.e., the service records including the last five years,

preceding the year for which the selection list is to be prepared as

per  para 3.1  of the  Guidelines.  Accordingly,  only the  Annual

Confidential Reports of five years upto the year ending 31st

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March, 2007 are relevant i.e. Annual Confidential Reports from

01.04.2002 to 31.03.2007 needed to be taken into account at the

time of  selection.  The same was being done by  the Selection

Committee in the matter on hand.  Hence, no fault can be found.

It seems that the CAT, as well as the High Court, has misdirected

in coming to the  wrong conclusion that Annual Confidential

Reports from 1.4.2003 to 31.03.2008 ought to have been taken

into consideration inasmuch as such conclusion is against the

Regulations & the Guidelines.  

13. The  CAT  and the  High  Court  have  mainly relied on the

grading given in the Annual Confidential Reports of the officers at

the State level while coming to their conclusion. But, in terms of

the Regulations and the Guidelines framed therein, for

categorising the officers, the Selection Committee was required to

consider the overall relative assessment of the service records of

each  of the eligible officers.   The  Selection  Committee is not

guided merely by the grading recorded in the Annual Confidential

Reports but makes its own assessment on the basis of the quality

of  the officer as  indicated  in various columns recorded by the

Reporting/Reviewing/Accepting Authority thereunder.   In other

words, the Selection Committee is not required to compulsorily

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accept the gradings given in the Annual Confidential Reports as it

would amount to merely acting as a post office and the whole

process would be nothing but a farce.   The grading recorded in

the Annual Confidential  Report of  a particular year may differ

from the grading arrived at by the Selection Committee in respect

of the said  Annual Confidential Report depending on all relevant

material.

14. Learned counsel for the UPSC, drawing the attention of the

Court to the contents of the affidavit filed by the UPSC before the

CAT, submits that the Selection  Committee also reviews and

determines the overall grading recorded in the Annual

Confidential  Reports to  ensure that the  overall grading in the

Annual Confidential Reports is not inconsistent with the

grading/remarks under various specific parameters or attributes.

It is brought to the notice of the Court that the Selection

Committee takes into account orders regarding appreciation for

meritorious work done by the officers concerned and also keeps

in view orders awarding penalties or any adverse remarks duly

communicated to the officers, which even after due consideration

of their representation by the suitable forum, are not expunged.

The afore­mentioned norms are uniformly applied to all the

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States/Cadres in the matter of induction into the All India

Services.  

15. The Selection Committee consists of experts in the field.  It

is presided over by the Chairman or a Member of the UPSC and

is duly represented by the officers of the Central Government and

the State Government who have expertise in the matter.   In our

considered opinion, when a High Level Committee or an expert

body has considered the merit of each of the candidates,

assessed the grading and considered their cases for promotion, it

is not open to the  CAT and the  High  Court to sit over the

assessment  made  by the  Selection Committee  as  an appellate

authority.  The question as to how the categories are assessed in

light of the relevant records and as to  what norms apply in

making the assessment, is exclusively to be determined by the

Selection Committee.  Since the jurisdiction to make selection as

per law is vested in the Selection Committee and as the Selection

Committee members have got expertise in the matter, it is not

open for the Courts generally to interfere in such matters except

in cases where the process of assessment is vitiated either on the

ground of bias, mala fides or arbitrariness.  It is not the function

of the Court to hear the  matters before it treating them as

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appeals  over the  decisions  of the  Selection  Committee  and  to

scrutinise the relative merit of the candidates.  The question as to

whether a candidate is fit for a particular post or not has to be

decided by the duly constituted expert body, i.e.,  the Selection

Committee.  The Courts have very limited scope of judicial review

in such matters.

We are conscious of the fact that the expert body’s opinion

may not deserve acceptance in all  circumstances and hence it

may not be proper to say that the expert body’s opinion is not

subject to judicial review in all circumstances.   In our

constitutional scheme, the decision of the Selection

Committee/Board of Appointment cannot be said to be final and

absolute.  Any other view will have a very dangerous consequence

and one must remind oneself of the famous words of Lord Acton

“Power tends to corrupt, and absolute power corrupts

absolutely”.  The aforementioned principle has to be kept in mind

while deciding such cases.  However, in the matter on hand, it is

abundantly clear  from the affidavit  filed by the UPSC that the

Selection Committee which  is nothing but an expert body had

carefully examined and scrutinised the experience, Annual

Confidential Reports and other relevant factors which were

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required to be considered before selecting the eligible candidates

for the IPS.  The Selection Committee had in fact scrutinised the

merits and demerits of each candidate taking into consideration

the various factors as required, and its recommendations were

sent to the UPSC.  It is the settled legal position that the Courts

have to show deference and consideration to the

recommendations of an Expert Committee consisting of members

with expertise in the field, if malice or arbitrariness in the

Committee’s decision is not forthcoming.   The doctrine of

fairness, evolved in administrative law, was not supposed to

convert tribunals and courts into appellate authorities over the

decision of experts.  The constraints – self­imposed, undoubtedly

– of writ jurisdiction still remain.   Ignoring them would lead to

confusion and uncertainty.   The jurisdiction may become

rudderless.      

16. No doubt, the Selection Committee may be guided by the

classification adopted by the  State  Government but, for good

reasons, the Selection Committee may evolve its own

classification which may be at variance with the grading given in

the Annual Confidential Reports.  As has been held by this Court

in the case of  UPSC vs. K. Rajaiah and others (2005) 10 SCC

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15, the power to classify as “Outstanding”, “Very Good”, “Good”

and “Unfit”  is vested with the Selection Committee.   That is a

function incidental to the selection  process. The  classification

given by the State authorities in the Annual Confidential Reports

is not binding on the Selection Committee.  Such classification is

within the prerogative of the Selection Committee and no reasons

need be recorded, though it is desirable that in a case of grading

at variance with that of the State Government, reasons be

recorded.   But having regard to the nature of the function and

the power confined to the Selection Committee under Regulation

5(4), it is not a legal requirement that reasons should be recorded

for classifying an officer at variance with the State Government’s

decision.   It is relevant to note that no allegations of malice or

bias are made by the first respondent at any stage of the

proceedings against the Selection Committee or the UPSC.

This Court has repeatedly  observed and concluded that the

recommendations of the Selection Committee cannot be

challenged except on the ground of mala fides or serious violation

of the  statutory  rules.  The courts  cannot  sit  as  an appellate

authority or an umpire to examine the recommendations of the

Selection Committee like a Court of Appeal.  This discretion has

31

been given to the Selection Committee only, and the courts rarely

sits as a Court of Appeal to examine the selection of a candidate;

nor is it the business of the Court to examine each candidate and

record its opinion.  Since the Selection Committee constituted by

the UPSC is manned by experts in the field, we have to trust their

assessment  unless it is actuated  with  malice or  bristles  with

mala fides or arbitrariness.

17. In the case of  Union of India vs. A.K. Narula  reported in

(2007) 11 SCC 10, this Court in similar circumstances observed

thus:

“15. The guidelines give a certain amount of play in the  joints to DPC by providing that it  need not be guided by the overall grading recorded in CRs, but may make  its own assessment on the basis of the entries in CRs. DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness, that the selection calls for interference.  Where  DPC has proceeded in a fair, impartial and reasonable  manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by DPC, the court will not interfere (vide SBI v. Mohd. Mynuddin [(1987) 4 SCC 486 : 1987 SCC (L&S) 464 : (1987) 5 ATC 59] , UPSC v. Hiranyalal Dev [(1988) 2 SCC 242 : 1988 SCC (L&S) 484 : (1988) 7 ATC 72] and Badrinath v. Govt. of T.N. [(2000) 8 SCC  395 : 2001 SCC (L&S) 13] ). The Review DPC reconsidered

32

the matter and has given detailed reasons as to why the case of the respondent was not similar to that of R.S. Virk. If in those circumstances, the Review DPC decided not to change the grading of the respondent for the period 1­4­1987 to 31­3­1988 from “good” to “very good”, the overall grading of the respondent continued to remain as “good”. There was no question of moving him from the block of officers with the  overall rating of “good” to the  block of  officers with the overall rating of “very good” and promoting him with reference to DPC dated 13­6­1990. In the absence of any allegation of mala fide or bias against DPC and in the absence of any arbitrariness in the manner in  which  assessment  has  been  made, the High  Court  was  not justified in  directing that the benefit of upgrading be given to the respondent, as was done in the case of R.S. Virk.”

18. In the case of  M.V. Thimmaiah vs. UPSC  reported in

(2008) 2 SCC 119, this Court, after considering various

judgments on the  

subject, observed thus:

“30. We fail to understand how the Tribunal can sit as an Appellate Authority to call for the personal records and constitute Selection Committee to undertake this exercise. This power  is not given to the Tribunal and it should be clearly understood that the assessment of the Selection  Committee is not subject to appeal either before the Tribunal or by the courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of ACRs of the candidates, one may be held to be very good and another  may be held to be good. If this type of interference is permitted then it would virtually

33

amount that the Tribunals and the High Courts have started sitting as Selection Committee or act as an Appellate Authority over the selection. It is not their domain, it should be clearly understood, as has been clearly held by this Court in a number of decisions. ......”

19. In the matter on hand, we find that neither the decision nor

the decision making process was actuated with malice, and no

grave mistake was committed by the Selection Committee leading

to arbitrariness. We find that it is not a case of pick and choose,

but the selection has been  made rationally.   The applicant­

respondent no.1 was duly considered by the Selection

Committee.  However,  on an overall  assessment of  her service

records, her name was not included in the select list due to the

statutory limit of its size and as officers with higher grading were

available for inclusion in the select list as per the provisions of

Regulation 5(5) of the Regulations.

20. So far as the case of respondent no.6 – Srimati V. Jayashree

is concerned, initially some disciplinary proceedings were

pending against her.   Though the disciplinary proceedings were

pending, the name of Srimati V. Jayashree, respondent no.6

herein, on an overall relative assessment of her service records,

was provisionally included in the select list, subject to clearance

34

in the disciplinary proceedings. Since the State Government had

certified the integrity of the said officer, in view of the fact that

the  disciplinary  proceedings  ended with a  negative report,  her

name was finally included in the select list. Such procedure was

adopted by the Selection Committee in accordance with the first

proviso to Regulation 5(5) of the Regulations, which reads thus:

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

The proviso to Regulation 5(5) specifically provides for

inclusion of officers in the select list against whom

departmental/criminal proceedings are pending, their inclusion

in the select list remains provisional, subject to clearance of

departmental/criminal proceedings.   However, their

appointments to the IPS can be made only after their names are

made  unconditional in the select list, in  accordance  with the

second proviso to Regulation 7(4) of the Regulations, which reads

thus:

35

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

xxx xxx xxx

Provided that where the State Government has forwarded the proposal to declare a provisionally included officer in the select list as “Unconditional”, to the Commission during the period when the select list was in force, the Commission shall decide the matter within a period of forty five days or before the date of meeting of the next Selection  Committee,  whichever is earlier and if the Commission declares the inclusion of the provisionally included officer  in the Select List as unconditional and final, the appointment of the concerned officer shall be considered by the Central  Government under regulation 9 and such appointment shall not be invalid  merely for the  reason  that it  was made after the Select List ceased to be in force.”

21. Since  the name of  Srimati  V.  Jayashree,  respondent no.6

herein, was provisionally included in the select list and was made

36

unconditional in the select list after her exoneration in the

disciplinary proceedings, she was appointed in the 2008 batch.

22. Having regard to the entire material on record, we do not

find any ground to agree with the reasons assigned by the CAT

and the High Court while coming to their conclusion.   The High

Court has strangely made out a fresh additional point in favour of

the first respondent by observing that, on perusal of the records

maintained by the Selection Committee, the High Court was not

able to find the grading of the officers recorded  by the  State

Government.  In other words, the High Court was of the view that

since the records submitted before the Selection Committee did

not include the grading of the officers recorded by the State

Government, the Selection Committee did not have an

opportunity to take into account the grading recorded  by the

State  Government  while  coming  to its  conclusion.  We do not

agree with  the said observations.  The CAT while  deciding the

matter has taken into account all the records including the

grading of the State Government, which means such records were

very  much available at the time of consideration before the

Selection Committee, as well  as at  the time of  decision by the

CAT.   In this context, it is brought to the notice of the Court by

37

the learned counsel representing the UPSC that after the

selection process is over, the Annual Confidential Reports

maintained by the State Government with the grading given to the

officers  by the  State  Government  were sent  back to the  State

Government, since those records belong to the State Government;

the rest of the records remained with  the UPSC.   The records

which were available  with  the UPSC were produced before the

High Court.  However, the records pertaining to the grading of the

officers recorded by the State Government could have been

secured by the High Court from the State Government.  Instead of

securing records from the State Government, the High Court has

strangely observed that such records were not available before the

Selection Committee.   It is but natural for the Selection

Committee to  send back  the records to the  State  Government

after the selection process is ended and appointments are made.

23. In view of the above, the judgments of the CAT dated

07.04.2010, and the High Court of Judicature at Madras dated

24.06.2013, stand set aside.

24. Accordingly, the instant civil appeal is allowed.  There shall

be no order as to costs.

38

…………………………………….….J. [MOHAN M. SHANTANAGOUDAR

New Delhi; ………………………………………..J. April 13, 2018. [NAVIN SINHA]