Full Judgment Text
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PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
N.R. BANERJEE & ORS.
DATE OF JUDGMENT: 16/12/1996
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
These appeals by special leave arise from the orders of
the Central Administrative Tribunal, Jabalpur Bench, made on
August 14, 1996 in OA Nos.219/95 and 237/96. The controversy
involved relates to promotion to the post of Senior General
Manager in the Indian Ordinance Factories under India
Ordinance Factories Services Rules. The question for
consideration is; as to when the vacancies in the above
posts would arise? The grade and scale of pay for the said
post is Rs.3700-8000/-. For the year 1994-95, panel of
successful candidates was required to be prepared. According
to the appellants, there were no clear vacancies as on April
1994. Four members in the above grade were to retire in that
year. Proposal for filling up the ensuing vacancies from
Ordinance Factory Board was sent to the Ministry on December
22, 1993. The Ministry had communicated to the Union Public
Service Commission its approval on February 8, 1994. A.C.Rs.
of the eligible candidates were approved on August 16, 1994
and the incumbent members joined as members of the Board on
August 22, 1994, September 03, 1994, October 6, 1994 and
March 1, 1995. Consequently the D.P.C. met on March 15, 1995
for selection of Officers to fill up the four vacancies.
On this factual matrix, it is contended for the
appellants that the crucial date for the D.P.C. meeting for
selection should be April or May 1995 for selection of
candidates to fill up the vacancies of the year 1994-95. The
A.C.Rs. recorded of all the candidates falling within the
zone of consideration and approved by the Government, as on
March 31, 1994, are required to be looked into and merits
adjudged. The Tribunal, therefore, was not right in
directing the Government to ignore the A.C.Rs. for the year
1994 and consideration of the candidates eligible by then
upto March, 1993. The D.P.C. was to be constituted as on
April 1, 1994. Resultantly, the direction were given in
paragraphs 25 and 28 for consequential action. Shri Altaf
Ahmed, learned Additional Solicitor General, contends that
the view of the Tribunal is not correct in law. As per the
procedure, preparation of the panel of candidates for
consideration by the D.P.C. to fill up the clear vacancies
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as on April 1994 is necessary. A.C.Rs. are prepared on the
basis of the performance during financial year which would
be October 1 of the year. In this case, the A.C.Rs. of the
incumbents are written on the financial years basis;. It was
approved by the Government in March 31, 1995. Therefore, the
D.P.C. could not have got approved A.C.Rs. before that date,
namely, as held by the Tribunal on March 19, 1993. The
direction, therefore, that the D.P.C. in its proceedings
should take into consideration A.C.Rs. of all the eligible
candidates as on April, 1993 is incorrect. Though, prima
facie, we are impressed with the arguments of Shri Altaf
Ahmed, on deeper probe and on going through the procedure
laid by the Ministry of Personnel and Training, we find no
force in the contention. Preparation of the action Plan for
consideration by the D.P.C. of the respective claims of the
officers within the Zone and thereafter for setting in
motion the preparation of panel on year wise basis, is
elaborately mentioned. In case of their failure to do so,
what further procedure is required to be followed is also
indicated in the rules. It thereby manifests the intention
of the rue-maker that the appellant-Government should
estimate the anticipated vacancies, regular vacancies and
also vacancies arising thereafter due to various
contingencies and it should also get the A.C.Rs. prepared
and approved. it is also made clear that the D.P.C. should
sit on regular basis to consider the cases of the eligible
candidates within the zone of consideration. The object is
clear that the Government should keep the panel ready in
advance so that the vacancies arising soon thereafter may be
filled up from amongst the approved candidates whose names
appear in the panel. In that behalf, it is seen that in the
guidelines issued by the Government in Part I of clause (49)
dealing with Functions and Composition of Departmental
promotion Committee etc. necessary guidelines have been
enumerated. It envisages that a post is filled upon by
promotion where the Recruitment Rules so provide. In making
promotions, it should be ensured that suitability of the
candidates for promotion is considered in an objective and
impartial manner. In other words, the consideration of the
candidate is not clouded by any other extraneous
considerations like caste, creed, colour, sect, religion or
region. In consideration of claims, merit alone should enter
into objective and impartial assessments. The object appears
to be that the A.C.Rs. be written by competent officer and
approved by superior officer objectively and impartially
without being influenced by any extraneous and irrelevant
consideration, to augment efficiency in public service and
to improve competence. For the purpose of selection,
Department Promotion Committee should be formed in each
Ministry/Department/Office, whenever an occasion arises, for
promotions/confirmations etc. The D.P.Cs. so constituted
shall judge the suitability of officers for:
(a) promotions to selection as well as non-selection posts;
(b) confirmation in their respective grades/posts;
(c) assessment of the work and conduct of probationers for
the purpose of determining their suitability for retention
in service of their discharge from it or extending their
probation; and
(d) consideration of cases of Government servants for
crossing the Efficiency Bar.
Rule 2.1 relates to composition of the D.P.C. for Group
A and Group B Officers. Members included in DPCs should be
officers who are at least one step above the posts in which
promotion/confirmation is be made as indicated thereunder.
This is consistent with the law laid by this Court in State
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Bank of India & Ors. vs. Kashinath Kher & Ors. [(1996) 8 Sec
762] wherein it was held that the object of writing the
confidential report is two-fold, i.e., to give an
opportunity to the officer to remove deficiencies and to
inculcate discipline. Secondly, it seeks to serve
improvement of quality and excellence and efficiency of
public service. The officer should show objectivity,
impartiality and fair assessment without any prejudices
whatsoever with the highest sense of responsibility alone to
inculcate devotion to duty, honesty and integrity to improve
excellence of the individual officer. Lest the officers get
demoralised which would be deleterious to his efficacy and
efficiency of public service, the confidential reports
should be written by a superior officer of high rank. There
should be another higher officer in rank above the officer
who has written confidential report to review such report.
Part II of the guidelines relating to the frequency of
meeting of the D.P.C. Para 3.1 indicates that the D.P.Cs
should be convened at regular annual intervals to draw
panels which could be utilised for making promotions against
the vacancies occurring during the course of a year. In
other words, the life of the penal is one year. For this
purpose, it is essential for the concerned appointing
authorities to initiate action to fill up the existing as
well as anticipated vacancies well in advance of the expiry
of the previous panel, by collecting relevant documents like
A.C.Rs., integrity certificates, seniority list etc. for
placing before the D.P.C.
D.P.Cs. should be convened every year, if necessary, on
fixed date, i.e. 1st of April or May. In the middle of the
para, by way of amendment brought on May 13, 1995, it
postulates that very often action for holding D.P.C meeting
is initiated after the vacancy has arisen. This results in
undue delay in filling up of vacancies and causes
dissatisfaction among those who are eligible for promotion.
It may be indicated that regular meeting of D.P.C. should be
held every year for each category of posts so that approved
select panel is available in advance for making promotions
against vacancies arising every year. Under para 3.2, the
requirement of convening annual meetings of the D.P.C.
should be dispensed with only after a certificate has been
issued by the appointing authority that there are no
vacancies to be filled by promotion or no officers are due
for confirmation during the year in question. It would,
thus, be seen that D.P.Cs. are required to sit every year,
regularly on or before 1st April or 1st May of the year to
fill up the vacancies likely to arise in the year for being
filled up. The required material should be collected in
advance and merit list finalised by the appointing
authorities and placed before the D.P.Cs for consideration.
This requirement can be dispensed with only after a
certificate is issued by the appointing authority that there
are no vacancies to be filed by promotion, or that no
officers are due for confirmation, during the year in
question.
Part III deals with preparatory action plan for
consideration for promotion. Para 4.1 reads as under;
"It is essential that the number of
vacancies in respect of which a
panel is to be prepared by a DPC
should be estimated as accurately
as possible. For this purpose, the
vacancies to be taken into account
should be the clear vacancies
arising in a post/grade/service due
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to death, retirement, resignation,
regular long term promotion and
deputation or from creation of
additional posts on a long term. As
regards vacancies arising out of
deputation, only those cases of
deputation for periods exceeding
one year should be taken into
account, due note, however, being
kept also of the number of the
deputationists likely to return to
the cadre and who have to be
provided for. Purely short term
vacancies created as a result of
officers proceeding on leave, or on
deputation for a shorter period,
training etc., should not be taken
into account for the purpose of
preparation of a panel. In cases
where there has been delay in
holding DPCs for a year or more,
vacancies should be indicated year-
wise separately."
Crucial date for determining eligibility has been dealt
with thereunder. By an amendment brought w.e.f. July 19,
1989, it is stated that relevant dates for determining
eligibility of the officers for promotion would be, where
A.C.Rs. are written calendar yearwise, 1st July of the year
and where the A.C.Rs. are written financial yearwise, 1st
October of that year. The other details prescribed in
Chapter IV are not material for the purpose of this case.
Part 6.4.1 deals with preparation of yearwise panels by
D.P.C. which reads as under;
"Where for reasons beyond control,
the DPC could not be held in
year(s), even though the vacancies
arose during that year (or years),
the first DPC that meets thereafter
should follow the following
procedures :
(i) Determine the actual number of
regular vacancies that arose
in each of the previous
year(s) immediately preceding
and the actual number of
regular vacancies proposed to
be filled in the current year
separately.
(ii) Consider in respect of each of
the years those officers only
who would be within the field
of choice with reference to
the vacancies of each year
starting with the earliest
year onwards.
(iii) Prepare a ‘Select list’ by
placing the select list of the
earlier year above the one for
the next year and so on;
It would, thus, be seen that the authorities are
required to anticipate in advance the vacancies for
promotion on regular basis including long term deputation
posts and additional posts created and then to take the
action plan in finalising the A.C.Rs. preparation of the
select list and place necessary material before the D.P.C.
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for consideration of the candidates within the zone of
consideration, as are found eligible for the relevant
year/years.
D.P.C. in the present case was directed to consider the
cases of all the eligible candidates within the zone of
consideration so that there will not be any heart burning
among the eligible persons whose claims have been withheld
for consideration for promotion to the higher post. In S.K.
Rizvi & Ors. vs. Union of India & Ors. [1993 Supp. (3) SCC
575] the mandatory duty of the preparation of the select
list of the officers for promotion to the All India Services
has been indicated in para 35 of the judgment at page 605
thus: "We, therefore, hold that preparation of the select
list every year is mandatory. It would subserve the object
of the Act and the rules and afford an equal opportunity to
the promotee officers to reach higher echelons of
the service. The dereliction of the statutory duty must
satisfactorily be accounted for by the State Government
concerned and this Court takes serious note of wanton
infraction".
It would thus be seen that the claims of the candidates
eligible have to be considered for promotion objectively and
dispassionately, with a sense of achieving many-fold purpose
(1) affording an opportunity to an incumbent to improve
excellence, honesty, integrity, devotion to public duty; (2)
inculcating discipline in service; (3) afford opportunity to
every eligible officer within zone of consideration for
promotion to higher post or officer; and (4) ensuing that
the Committee regularly meets and considers their claim
objectively, impartially with high sense of responsibility
in accordance with the procedure and finalisation of the
list in advance so as to fill up vacancies arising in the
year from the approved panel without any undue delay. They
are the salutory principles, purpose and the policy behind
the above rules and the Government should follow them.
Considered from that perspective, the question arises:
whether the view taken by the Tribunal is justified in law?
It is true that filling up of the posts are for clear or
anticipated vacancies arising in the year. It is settled law
that mere inclusion of one’s name in the list does not
confer any right in him/her to appointment. It is not
incumbent that all posts may be filled up. But the authority
must act reasonably, fairly and in public interest and
omission thereof should not be arbitrary. In Shankarasan
Dash v. Union of India [(1991) 2 SCR 567], the Constitution
Bench had held that inclusion of the name of a candidate in
a merit list does not confer any right to be selected unless
the relevant recruitment rules so indicate. The State is
under no legal duty to fill up all or any of the vacancies
even thought he State acts in arbitrary manner. In Babita
Prasad & Ors. v. State of Bihar & Ors. [(1993) Supp. 3 SCC
268] it was held that mere inclusion of one’s name in the
panel does not confer on him/her any indefeasible right to
appointment. It was further held that the purpose of making
panel was to finalise the list of eligible candidates for
appointment. The preparation of the panel should be to the
extent of the notified or anticipated vacancies. Unduly
wrong panel should not be operated. In Union Territory of
Chandigarh v. Dilbagh Singh & Ors. [(1993) 1 SCC 154] it was
held that the mere fact that a candidate’s name finds a
place in the select list as a selected candidate for
appointment to a post, does not confer on him/her an
indefeasible right to be appointed in such post in the
absence of any specific rule entitling him to such
appointment. In State of Bihar & Ors. v. Secretariat
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Assistant Successful Examinees Union 1986 & Ors. [(1994) 1
SCC 126] it was held that a person who is selected and
empanelled does not on account of empanelment alone acquire
any indefeasible right to appointment. Empanelment is, at
the best, a condition of eligibility for the purposes of
appointment and that by itself does not amount to selection
or creation of a vested right to appointment unless relevant
rules state to the contrary. However, in the light of the
above principles and in the light of the clear rules
extracted hereinbefore, it is seen that the exercise of
preparation of the panels is undertaken well in advance to
fill up the clear vacancies of anticipated vacancies. The
preparation and finalisation of the yearly panel, unless
duly certified by the appointing authority that no vacancy
would arise or no suitable candidate was available, is a
mandatory requirement. If the annual panel could not be
prepared for any justifiable reason, yearwise panel of all
the eligible candidates within the zone of consideration for
filling up the vacancies each year should be prepared and
appointment made in accordance therewith. In Nagar
Mahapalika, Kanpur v. Vinod Kumar Srivastava [AIR 1987 SC
847], this Court had pointed out with respect to the
prescription of the limitation of one year of the waiting
list thus.
"The reason underlying the
limitation of the period of list
for one year is obviously to ensure
that other qualified persons are
not deprived of their chances of
applying for the post in the
succeeding year and being selected
for appointment."
It is true that the material furnished before us would
indicate that action was taken on December 22, 1993 by the
Ordinance Factory Board and circulated for action to be
taken by the Government and thereafter the Union Public
Service Commission was consulted. Action taken on this
material should have been taken much earlier to the date on
which it was taken since they knew that four members were
due to retire in August, September, October 1994 and March
1995. There were anticipated vacancies likely to arise on
permanent basis and promotion to them was to be made on
regular basis. In other words, they were all clear
vacancies. So they were to be finalised before April 1994
and the confidential reports should have been approved
before 31st March 1993 and all eligible candidates within
the zone of consideration as on the date of D.P.C. were
entitled to be considered. The direction given be the
Tribunal referred to above is clearly in accordance with the
procedure indicated hereinbefore. Therefore, we do not find
that the orders are vitiated by any error of law warranting
interference.
The appeals are accordingly dismissed. No costs. Since
the Tribunal has given time to constitute the D.P.C. and
finalise the matter within 45 days, time is extended for 45
days from today. It is needless to mention that all those
found eligible are required to be appointed.