Full Judgment Text
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PETITIONER:
GURDIAL SINGH FIJJI
Vs.
RESPONDENT:
STATE OF PUNJAB & OTHERS
DATE OF JUDGMENT09/03/1979
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
TULZAPURKAR, V.D.
CITATION:
1979 AIR 1622 1979 SCC (2) 368
CITATOR INFO :
R 1981 SC 594 (6)
F 1984 SC 531 (5,8)
RF 1987 SC 948 (9)
RF 1988 SC1069 (5)
RF 1991 SC1216 (6)
RF 1992 SC1020 (23)
ACT:
Indian Administrative Service (Appointment by
Promotion) Regulation 1955 -Requirement of Integrity
Certificate-Resolutions 1.1 and 1.2 whether ultra vires the
Regulations.
Adverse report in confidential roll-Not communicated to
the person concerned-Whether can be acted upon to deny
promotional opportunities.
HEADNOTE:
The Indian Administrative Service (Appointment by
Promotion) Regulations, 1955 formulates the procedure for
selecting persons from the State Civil Service Cadre for the
purpose of bringing them on the select list of the Indian
Administrative Service. Regulation 5 which deals with the
preparation of the list of suitable officers provides by cl.
(2) that the selection for inclusion in such list shall be
based on merit and suitability in all respects with due
regard to seniority, while cl. (5) provides that if it is
proposed to supersede any member of the State Civil Service,
the Selection Committee shall record its reasons for the
proposed supersession.
The "Government of India’s Decisions" under the
regulations have been published by the Govt. in the All
India Services Manual, Part II.
Resolution 1.1 requires the Chief Secretary to the
State Government who is the sponsoring authority to record a
certificate in respect of every eligible officer whose case
is placed before the Selection Committee, that the State
Government certifies the integrity of the officer with
reference to the entries in his annual confidential reports.
Resolution 1.2 provides that the Selection Committee
should specifically record in its proceedings that it is
satisfied from the remarks in the confidential reports of
the officers selected by it for inclusion in the Select List
that there was nothing against their integrity.
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The appellant and respondents 8 to 15 were members of
the Punjab Civil Service (Executive Branch), the respondents
being junior to the appellant. In 1966-67, an adverse entry
was recorded in the confidential report of the appellant by
the District and Sessions Judge. No decision was taken by
the Government as to whether the adverse entry was justified
and whether the contentions raised by the appellant in his
representation to the same were well founded.
After 1966-67, the appellant worked in various
capacities, earned good reports and was allowed to cross the
first and second efficiency bars. However, respondents 8 to
15 were promoted to the selection grade of the service prior
to the appellant. His representation in this regard was
rejected by the Government.
Respondents 2 to 7 who constituted the committee for
selecting persons from the Punjab Civil Service cadre for
the purpose of bringing them on the select list of the
Indian Administrative Service, selected respondent no. 9.
The
519
Appellent’s name was not put on the select list, since
respondent no. 2, the Chief Secretary to the State Govt. had
refused to give an ’integrity certificate’ to him. His
representation against the non-inclusion having been
rejected, he approached the High Court.
The High Court rejected the appellant’s contention that
resolution 1.1 was ultra vires of regulations 4 and 5; but
quashed the order of the State Government granting seniority
to two junior officers over the appellant in the selection
grade.
In appeal by the appellant, the High Court held that it
is nowhere laid down that integrity certificate is the
requirement for eligibility for promotion. Integrity
certificate is the requirement of resolution 1.1 which is
only an executive instruction. No criteria is mentioned, nor
guidelines provided as to how the integrity certificate is
to be issued. The executive instruction, therefore, went
beyond the scope of the statutory regulation, the provision
requiring the production of the integrity certificate was
unguided and was likely to lead to arbitrariness and
unreasonableness and that therefore resolution 1.1 was ultra
vires of regulations 4 and 5. The High Court held further
that the records of the Selection Committee reveal that the
decision not to include the appellant’s name in the select
list was not based solely on the ground of non-availability
of the integrity certificate and that the Committee had
given another cogent reason, that the appellant was not
suitable otherwise also
Allowing the further appeal to this Court,
^
HELD: 1. (i) The Letters Patent Bench of the High Court
was in error in striking down, resolution 1.1 as being ultra
vires of regulation 5. Both resolutions 1.1 and 1.2 are
within the regulations and are valid. [527 C]
(ii) Under cl. (2) of Regulation 5 selection for
inclusion in the select list has to be based on merit and
suitability in all respects with due regard to seniority.
Neither the 1954 Rules nor the 1951 Act furnish any
guidelines for assessing merit and suitability. The
Government would therefore, have the power to prescribe the
criteria for determining whether the requirements of merit
and suitability are fulfilled by any particular candidate,
The Executive decision which is contained in resolution 1.1
and 1.2 effectuates the purpose of that prescription. [526
C, F, G]
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(iii) The Government in the exercise of its executive
authority cannot supersede a statutory rule or regulation
but it can certainly effectuate the purpose of a rule or
regulation by supplementing it. These resolutions of the
Government of India do not transgress the requirement of the
Regulations but are in furtherance thereof. It, therefore,
cannot be stated that the Chief Secretary had been conferred
with an unguided or unfettered discretion to assess the
integrity of the officers by granting or refusing the
integrity certificate at his sweet will. [526 H, 527 B]
(iv) Every Executive Authority is charged with the
obligation of organising its services so as to ensure
maximum efficiency. The idea of maximum efficiency cannot be
achieved unless persons who are selected for public offices
possess integrity in as high a measure as ability. Integrity
is, therefore, the sine qua non of merit and suitability. No
person can be considered as possessing merit and suitability
if he lacks in character and integrity. [526 E]
520
2. One of the reasons which evidently weighed with the
Selection Committee in not putting the appellant’s name on
the select list was that the Chief Secretary had not issued
the integrity certificate in his favour. The non-inclusion
of appellant’s name in the select list and the non-issuance
of the integrity certificate are thus closely linked,
whether or not there was another reason also for which the
Selection Committee kept him out from the select list. [527
G-H]
3. An adverse report in a confidential roll cannot be
acted upon to deny promotional opportunities unless it is
communicated to the person concerned so that he has an
opportunity to improve his work and conduct or to explain
the circumstances leading to the report. Such an opportunity
is not an empty formality, its object, partially, being to
enable the supeurior authorities to decide on a
consideration of the explanation offered by the person
concerned, whether the adverse report is justified. [528 H-
529 B]
In the instant case for one reson or another not
arising out of any fault on the part of the appellant though
the adverse report was communicated to him the Government
has not been able to consider his explanation and decide
whether the report was justified. In such circumstances it
is difficult to support the non-issuance of the integrity
certificate to him. The chain of reaction began with the
advese report and the infirmity in the link of causation is
that no one has yet decided whether that report was
justified. [529 C]
4. In the absence of a proper pleading it cannot be
speculated that the appellant was not found suitable for
reasons other than those connected with the non-issuance of
an integrity certificate to him. [529 D]
5. The High Court saw the file and discovered that the
appellant was not brought on the select list because he was
’not found suitable otherwise’. Regulation 5(7) provides
that the Committee shall record its reasons if it is
proposed to supersede any member of the State Civil Service.
That an officer was "not found suitable" is the conclusion
and not a reason in support of the decision to supersede
him. In the absence of any reason, this Court cannot agree
with the High Court that the Selection Committee had another
"reason" for not bringing the appellant on the select list.
[529 E, G, 530 A]
[Directed that the case of the appellant be
considered afresh by the Selection Committee indicating the
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broad frame-work within which the Committee should act and
the preliminary steps the Government should take in order to
facilitate the Committee’s task.]
Union of India v. Mohan Lal Capoor & Ors., [1971] 1 SCR
797; referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 503 of
1978.
Appeal by Special Leave from the Judgment and order
dated )76 of the Punjab and Haryana High Court at
Chandigarh in L.P.A. No. 484/74. S. K. Mehta, J. S. Chawla,
P. N. Puri and P. Balakrishnan for the Appellant B;shamber
Lal (for State) and Hardev Singh for the RR-1-4 and 6.
521
P. N. Lekhi and Girish Chandra for Respondent No. 17.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J.-The appellant, Gurdial Singh Fijji,
was selected for the Punjab Civil Service (Executive Branch)
in 1953 and was appointed as an Executive Magistrate on June
8, 1954. Respondents 8 to 15 are also members of the same
Service, namely, the P.C.S., but they were selected and
appointed to that Service after the appellant. They are all
governed, in the matter of conditions of their service, by
the Punjab Civil Service (Executive Branch) Rules 1930, as
amended from time to time by the competent authority. The
appellant was confirmed in the cadre on May 8, 1958 while
respondents 8 to 15 were confirmed on diverse dates
thereafter. In the gradation list circulated by the
Government from time to time, respondents 8 to 15 were shown
as junior to the appellant.
In the year 1966, as a result of the reorganisation of
the erst-while State of Punjab, the appellant and
respondents 8 to 16 were allocated to the State of Punjab.
In 1966-67 an adverse entry was made in the confidential
record of the appellant while he was working under one Shri
Sewa Singh, District and Sessions Judge, Amritsar. That
entry was communicated to the appellant whereupon, he made a
representation against it but that has still not been
disposed of, for one reason or another. The State Government
forwarded the representation to Shri Sewa Singh, who
declined to express his views upon it unless asked by the
High Court to do so. Nothing further has been done in the
matter and no decision has yet been taken on the question
whether the adverse entry was justified and whether the
various contentions raised by the appellant in his
representation are well-founded.
The appellant worked in various capacities after 1966-
67, earning good reports all along. He was permitted to
cross the first efficiency bar under an order of the State
Government dated June 14, 1966 and the second efficiency bar
on July 20, 1971.
By an order dated July 3, 1971 published in the Punjab
Government Gazette on July 23, the Government promoted
respondents 8 to 12 to the selection grade of the Punjab
Civil Service cadre. Respondent 15 was similarly promoted on
December 19, 1970, respondent 16 on January 1, 1971 and
respondents 13 and 14 on July 27, 1971. On March 14, 1972,
the appellant was also promoted to the selection grade with
effect from January 15, 1972. He made a representation to
the Government against the orders promoting res-
522
pondents to the selection grade prior to him but it was
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rejected by an order dated June 20, 1973.
A Committee consisting of respondents 2 to 7 was
constituted under Regulation 3 of the Indian Administrative
Service (Appointment by Promotion) Regulations 1955, for
selecting persons from the Punjab Civil Service cadre for
the purpose of bringing them on the select list of the
Indian Administrative Service. The Committee held its
meeting at Chandigarh on May 11, 1973 after which it
prepared a list under Regulation 5 selecting respondent 9
for being brought on the select list for the purpose of
promotion to the Indian Administrative Service. It would
appear that the appellant’s name was not put on the select
list since respondent 2, the Chief Secretary to the
Government of Punjab, had refused to give an ’integrity
certificate’ to him. Appellant made a representation against
his non-inclusion in the select list and that representation
having been rejected, he filed a Writ Petition (No. 3315 of
1973) in the High Court of Punjab and Haryana, challenging
the promotion of respondent to the selection grade, the
refusal of the Chief Secretary to issue an ’integrity
certificate’ to him and his non-inclusion in the Select List
of the Indian Administrative Service.
The appellant’s Writ Petition was allowed partly by a
learned single Judge of the High Court by his judgment dated
August 19, 1974 whereby the order dated July 27, 1971 of the
State Government granting seniority to two junior officers
over the appellant in the selection grade was quashed. The
learned Judge directed the State Government to reconsider
the case of the appellant along with that of three other
officers regarding the grant of selection grade with effect
from June 25, 1971.
The appellant filed a Letters Patent Appeal (No. 484 of
1974) against the decision of the learned Single Judge which
was disposed of by the High Court on November 19, 1976. It
was held in appeal that the requirement of Resolution No.
1.1 as regards the production of the ’integrity certificate’
was in the nature of a mere executive instruction, that it
went beyond the scope of the statutory regulations, that the
provision requiring the production of the ’integrity
certificate’ was unguided and was likely to lead to
arbitrariness and unreasonableness and that therefore,
Resolution No. 1.1 was ultra vires of Regulations 4 and 5.
The entire record of the Selection Committee was placed by
the State Government before the High Court in the Letters
Patent Appeal, from a perusal of which the High Court came
to the conclusion that the decision of the
523
Commttee not to include the appellant’s name in the Select
List was not based solely on the ground that he was unable
to produce the integrity certificate and that the Committee
had given another cogent reason for its decision viz., that
the appellant was not suitable for being placed on the
Select List otherwise also. Since inclusion in the select
list for the purposes of promotion to the Indian
Administrative Service was to be made on the basis of merit-
cum-seniority, the Committee, according to the High Court,
was justified in not including the name of the appellant in
that list if, in its opinion, he was not otherwise suitable.
The Letters Patent Appeal was accordingly dismissed by the
High Court, against which the appellant has filed this
appeal by special leave.
We will first deal with the question whether resolution
No. 1.1. is ultra vires regulations 4 and 5 of the Indian
Administrative Service (Appointment by Promotion)
Regulations, 1955. These regulations aree framed by the
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Central Government in pursuance of sub-rule 1 of rule 8 of
the Indian Administrative Service (Recruitment) Rules, 1954
in consultation with the State Governments and the Union
Public Service Commission. Regulations 3 to 7 provide for
bringing members of the State Civil Service on the select
list for promotion to the Indian Administrative Service.
Regulation 3 deals with the constitution of the committee
for making selections. Regulation 4 which deals with
conditions of eligibility for promotion provides that each
committee shall meet at intervals, ordinarily not exceeding
one year, and consider the cases of all substantive members
of State Civil Service who on the first day of January of
that year had completed not less than eight years of
continuous service, whether officiating or substantive, in a
post of Deputy Collector or any other post or posts declared
equivalent thereto by the Government. By Clause (2) of
regulation 4, the committee shall not ordinarily consider
the cases of members of the State Civil Service who have
attained the age of 52 years on the first day of January of
the year in which the meeting of the committee is held,
provided that a member of the State Civil Service whose name
appears in the select list in force immediately before the
date of the meeting of the committee shall be considered for
inclusion in the fresh list to be prepared by the committee,
even if in the meanwhile he has attained the age of 52
years.
Regulation 5 reads thus:
"5. Preparation of a list of suitable officers-
(1) The committee shall prepare a list of such
members of the State Civil Service as satisfy
the condition
524
specified in regulation 4 and as are held by
the committee to be suitable for promotion to
the service. The number of members of the
State Civil Service included in the list
shall not be more than twice the number of
substantive vacancies anticipated in the
course of the period of twelve months
commenceing from the date of the preparation
of the list, in the posts available for them
under rule 9 of the recruitment rules or 10
per cent of the senior duty posts borne on
the cadre of the State or group of States
whichever is greater:
Provided that in the year ending on the
31st December, 1969, the maxmimum limit,
imposed by this sub-regulation, may be
exceeded to such extent as may be determined
by the Central Government in consultation
with the State Government concerned.
(2) The selection for inclusion in such list
shall be based on merit and suitablity in all
respects with due regard to seniority.
(3) The names of the officers included in the
list shall be arranged in order of seniority
in the State Civil Service:
Provided that any junior officer who in
the opinion of the committee is of
exceptional merit and suitability may be
assigned a place in the list higher than that
of officers senior to him.
(4) The list so prepared shall be reviewed and
revised every year.
(5) If in the process of selection, review or
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revision it is proposed to supersede any
member of the State Civil Service, the
Committee shall record its reasons for the
proposed supersession."
The All India Services Manual, Part II, which is issued
under the authority of the Government of India, Cabinet
Secretariat, (Department of Personnel and Administrative
Reforms), sets out under appropriate regulations the
"Government of India’s Decisions" which are, for
convenience, referred to by the High Court as "resolutions".
525
Resolution 1.1 which incorporates a decision taken by the
Government of India reads thus:
"1.1. On the basis of the recommendations of the
Committee on the Prevention of Corruption, it has been
decided that the following certificate should be
recorded by 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:
"The State Government certify the integrity of
Shri-------------with reference to the entries in his
annual confidential reports".
Resolution 1.2 which is on the same subject says:
"1.2. The Selection Committee should also consider
the question of suitability of the officers for
selection with reference to their integrity and should
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."
The learned Single Judge of the High Court rejected the
appellant’s contention that resolution 1.1 is ultra vires of
regulations 4 and 5. The Letters Patent Bench of the High
Court different from him and quashed the resolution,
observing:
"Regulations 3 to 7 are self-contained regulations
prescribing the whole procedure for the constitution of
the selection committee, qualifications for the
eligibility, preparation of list of suitable candidates
etc. It is evident from the plain reading of these
regulations that integrity certificate is not the
requirement for eligibility for promotion. Integrity
certificate is the requirement of resolution 1.1 which
is only an executive instruction. The regulations are
quite detailed and the whole mode of selection is given
and merit-cum-seniority is the main basis for bringing
the persons on the select list. It is nowhere laid down
in the regulations that integrity certificate is also
required for eligibility for promotion. Hence this
requirement under the executive instruction goes
counter to the statutory regulations. It has put
restrictions and limitations on the committee in its
discretion. Moreover, it is nowhere laid down as to how
the integrity certificate is to be issued. No
526
criteria is mentioned in resolution 1.1. No guideline
is provided. Hence it can lead to arbitrariness and
unreasonableness in certain cases........ I have,
therefore, no hesitation in holding that resolution 1.1
contravenes the regulations, which cannot legally be
sustained and is struck down as ultra vires of
regulations 4 and 5."
We find it impossible to sustain this conclusion and
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are of the opinion that the learned Single Judge of the High
Court was right in upholding the validity of resolution 1.1
on the ground that it is not inconsistent with any of the
regulations. Clause (2) of Regulation 5 provides that
selection for inclusion in the Select List shall be based on
merit and suitability in all respects, with due regard to
seniority. In other words, the test for inclusion in the
Select List is merit-cum-seniority. Neither the Indian
Administrative Service (Recruitment) Rules, 1954 under which
the Regulations are framed nor indeed the provisions of the
All India Services Act, 61 of 1951, under which the Rules
are made, furnish any guidelines for assessing merit or
suitability of a candidate for inclusion in the Select List
or provide for the consideration of any particular data
before a candidate can be brought on the Select List. Every
executive authority is charged with the obligation of
organising its services so as to ensure maximum efficiency.
The ideal of maximum efficiency cannot be achieved unless
persons who are selected for public offices possess
integrity in as high a measure as ability. Integrity is
indeed the sine qua non of merit and suitability: no person
can be considered as possessing merit and suitability if he
lacks in character and integrity. If, as provided by
Regulation 5, selection for inclusion in the Select List has
to be based on merit and suitability in all respects, and
the Rules and Regulations do not furnish guidelines for a
proper assessment of these requirements, the government
would have the power to prescribe the criteria for
determining whether the requirements are fulfilled by any
particular candidate. The prescription of the Regulation for
inclusion in the Select List is merit-cum-seniority. The
executive decision which is contained in resolutions 1.1 and
1.2 effectuates the purpose of that prescription.
Undoubtedly the government in the exercise of its executive
authority cannot supersede a statutory rule or regulation
but it can certainly effectuate the purpose of a rule or
regualtion by supplementing it. Resolution 1.2 provides that
the Selection Committee should consider the question of
suitability of officers with reference to their integrity
and should specifically record in its proceedings, that it
is satisfied from the remarks in the confidential reports of
the officers selected by it for inclusion in the Select
List,
527
that there was nothing against their integrity. Resolution
1.1 requires the Chief Secretary of the concerned State
Government, who is the sponsoring authority, to record a
certificate in respect of all eligible officers, whose cases
are placed before the Selection Committee for consideration,
that the State Government certifies the integrity of the
officers with reference to the entries in their annual
confidential reports. These resolutions of the Government of
India do not transgress the requirement of the Regulations
but are in furtherance thereof. The circumstance that the
Chief Secretary has to record a certificate does not confer
upon him unguided or unfettered discretion to assess the
integrity of the officers by granting or refusing the
integrity certificate at his sweet will. The State
Government has to certify the integrity of the eligible
candidate "with reference to the entries in his annual
confidential reports". We are, therefore, quite clear that
the Letters Patent Bench of the High Court was in error in
striking down resolution 1.1 as being ultra vires of
Regulation 5. Both the resolutions 1.1 and 1.2, are in our
opinion within the scope of the Regulations and are valid.
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Though the High Court was of the opinion that
Resolution 1.1 is ultra vires of Regulation 5, it did not
quash the decision of the Selection Committee because,
having perused the record and proceedings of the Selection
Committee (which were made available to it during the
hearing of the Letters Patent Appeal), it found that the
non-selection of the appellant was not based solely on the
ground that the Chief Secretary had not issued an integrity
certificate in his favour. The proceedings of the Selection
Committee, according to the High Court, disclosed that the
appellant was not selected for the reason also that he was
"not found suitable otherwise".
The course adopted by the High Court has cause to the
appellant an amount of injustice which has to be rectified.
It is clear that the Chief Secretary, Punjab, did not grant
integrity certificate in favour of the appellant because of
the adverse report in his confidential roll for the year
1966-67. One of the reasons which evidently weighed with the
Selection Committee in not putting the appellant’s name on
the Select List was that the Chief Secretary had not issued
the integrity certificate in his favour. Thus, the non-
inclusion of appellant’s name in the Select List and the
non-issuance of the integrity certificate are closely
linked, whether or not there was another reason also for
which the Selection Committee kept him out from the Select
List.
528
In so far as the non-issuance of the integrity
certificate is concerned, it is undisputed that its only
justification is the adverse report in the confidential roll
of the appellant for the year 1966-67. The circumstances
surrounding the adverse entry may therefore bear examination
for seeing whether such preponderating importance could, on
the facts to which we will immediately advert, be given to
the particular entry.
The counter affidavit filed on behalf of the Government
of Punjab by Shri Phuman Singh, Under Secretary in the
services department, shows that after the adverse remarks
were communicated to the appellant, he submitted a
representation requesting that the remarks be expunged. That
representation was referred by the Government to Shri Sewa
Singh, retired District and Sessions Judge, who had made the
particular remarks. Shri Sewa Singh desired that the
reference which was made to him by the Government should be
routed through the High Court. The Government then made a
reference to the High Court of Punjab and Haryana requesting
it to obtain the comments of Shri Sewa Singh. The High Court
replied that it was not its practice to call for comments of
District and Sessions Judges on the representation of an
officer against whom adverse remarks were made. The High
Court was once again requested by the Government that the
Chief Justice and the Judges may communicate their views to
the Government on the representation made by the appellant.
As the High Court did not express its view, the Government
asked the appellant to submit a detailed representation
along with documentary evidence in order to show that the
adverse entry was made mala fide as alleged by him. The
appellant submitted his representation again on December 19,
1971, as desired by the Government. After a detailed
examination of that representation, it was decided by the
Government that since the comments of the Reporting Officer
of the High Court on the representation made by the
appellant were not available, which was necessary for the
proper disposal of the representation, a suitable note may
be placed on the appellant’s character roll alongwith the
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confidential report for the year 1966-67. An attested copy
of that note is annexed to Shri Phuman Singh’s affidavit as
annexure 1. After setting out the facts and circumstances
narrated above, that note says that in the absence of
necessary comments of the authority concerned, it was not
possible for the Government to take any decision on the
merits of the representation made by the appellant.
The principle is well-settled that in accordance with
the rules of natural justice, an adverse report in a
confidential roll cannot be
529
acted upon to deny promotional opportunities unless it is
communicated to the person concerned so that he has an
opportunity to improve his work and conduct or to explain
the circumstances leading to the report. Such an opportunity
is not an empty formality, its object, partially, being to
enable the superior authorities to decide on a consideration
of the explanation offered by the person concerned, whether
the adverse report is justified. Unfortunately, for one
reason or another, not arising out of any fault on the part
of the appellant, though the adverse report was communicated
to him, the Government has not been able to consider his
explanation and decide whether the report was justified. In
these circumstances, it is difficult to support the non-
issuance of the integrity certificate to the appellant. The
chain of reaction began with the adverse report and the
infirmity in the link of causation is that no one has yet
decided whether that report was justified. We cannot
speculate, in the absence of a proper pleading, whether the
appellant was not found suitable otherwise, that is to say,
for reasons other than those connected with the non-issuance
of an integrity certificate to him.
We may also indicate, since the High Court saw the file
and discovered that the appellant was not brought on the
Select List because he was "not found suitable otherwise",
that regulation 5 which deals with the preparation of a list
of suitable officers provides by clause 7 that "if in the
process of selection, review or revision it is proposed to
supersede any member of the State Civil Service, the
Committee shall record its reasons for the proposed
supersession". While dealing with an identical provision in
clause 5 of regulation 5 of the same Regulations as they
stood then, this Court observed in Union of India v. Mohan
Lal Capoor & Others(1) that "rubberstamp" reasons given for
the supersession of each officer to the effect that the
record of the officer concerned was not such as to justify
his appointment "at this stage in preference to those
selected", do not amount to "reasons for the proposed
supersession" within the meaning of clause 5. "Reasons",
according to Beg J. (with whom Mathew J. concurred) "are the
links between the materials on which certain conclusions are
based and the actual conclusions". The Court accordingly
held that the mandatory provisions of regulation 5(5) were
not complied with by the Selection Committee. That an
officer was "not found suitable" is the conclusion and not a
reason in support of the decision to supersede him. True,
that it is not expected that the Selection Committee should
give anything approaching the judgment of a Court, but it
must at least state, as
530
briefly as it may, why it came to the conclusion that the
officer concerned was found to be not suitable for inclusion
in the Select List. In the absence of any such reason, we
are unable to agree with the High Court that the Selection
Committee had another "reason" for not bringing the
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appellant on the Select List.
In matters of this nature, particularly when the Select
Lists have to be prepared and reviewed from year to year, it
becomes difficult to work out the logical consequences of
holding that the case of any particular officer ought to be
reconsidered. But, inevitably, for reasons mentioned above,
the case of the appellant shall have to be considered afresh
by the Selection Committee. How best to do it has to be left
to its wise discretion in the matter of details, but in
order to eliminate, in so far as one may, chance of yet
another litigation we ought to indicate the broad frame-work
within which the Committee should act and the preliminary
steps which the Government must take in order to facilitate
the Committee’s task.
In the first place, the State Government shall consider
and dispose of within two months from to-day the
representations made by the appellant on January 23, 1969
and December 19, 1971 in regard to the adverse report in his
confidential roll, for the year 1966-67. We are hopeful that
the High Court will co-operate with the Government in the
disposal of the representations. The Selection Committee
will, within three months thereafter, decide whether the
appellant should be included in the Select List as of May
11, 1973. That question has to be decided in accordance with
the relevant regulations by applying the test of merit and
suitability-cum-seniority. For deciding the question of
appellant’s merit and suitability, the Selection Committee
will take into consideration the Government’s decision on
his representations and his service record up-to-date. If
the Committee decides that he is not suitable for inclusion
in the Select List and should therefore be superseded, it
shall record its reasons for the proposed supersession. If,
on the other hand, the Committee decides to include his name
in the Select List, he will be entitled to rank in that list
in accordance with his seniority as of May 11, 1973 unless,
in the opinion of the Committee, there is a junior officer
of exceptional merit and suitability who may be assigned a
higher place. The Selection Committee will review the list
for 1973 in accordance with these directions. The Union
Public Service Commission will thereafter be consulted in
accordance with the regulations. The Select List as finally
approved by the Commission will form the Select List of the
members of the State Civil Service.
531
We may indicate that the Writ Petition filed by the
appellant and his appeal to this Court cannot be considered
to have become infructuous on the ground that the Union
Public Service Commission has already approved of the Select
List. The learned Single Judge of the High Court had stayed
the final publication of the list by his order dated
September 24, 1973 and had directed by his order dated
February 11, 1974 in C.M. 994 of 1974 that the publication
of the Select List will be subject to the result of the Writ
Petition.
With these modification, the appeal is allowed but
there will be no order as to costs.
N.V.K. Appeal allowed.
532