Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO(s). 27982/2013
STATE OF GUJARAT Petitioner(s)
VERSUS
NATVARLAL MOTILAL CHAVDA Respondent(s)
J U D G M E N T
A.K. SIKRI, J.
The present special leave petition is filed against
the final judgment and order dated 18.12.2012 delivered
by the Division Bench of High Court of Gujarat in Special
Civil Application No. 2210 of 2005. Vide the impugned
judgment, the Court has partly allowed the writ petition
and has granted certain consequential benefits to
respondent no. 1 interpreting the provisions of Indian
Administrative Service (Appointment by Promotion)
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Regulations, 1955. At the same time some strings, in the
nature of certain conditions, are attached as well.
Respondent no. 1 was directly recruited as Mamlatdar
in 1977 and then promoted as Deputy Collector in 1983 in
Class-I cadre of Gujarat Administrative Service(GAS).
Thereafter, he was promoted as Additional Collector in
1995 and transferred and posted as Secretary, Slums
Clearance Board on 20.02.2003. On 22.09.2003, the State
Government sent a proposal to the Union Public Service
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Commission(UPSC) and the Department of Personnel and
Training, Government of India along with the list of
prospective candidates for selection and appointment in
IAS cadre and that list included at serial no. 6 the name
of respondent no. 1. By notification dated 15.06.2004 of
the Government of India, through Department of Personnel
and Training, 10 members of the State Civil Service of
Gujarat were appointed in the Indian Administrative
service against the vacancies of the year 2003, on
probation with immediate effect, until further orders,
under Rule 8 of the Indian Administrate Service
(Recruitment) Rules, 1954 read with Sub-Regulation (1) of
Regulation 9 of the Indian Administrative Service
(Appointment by Promotion) Regulations, 1955 and Rule 3
of the Indian Administrative Service(Probation) Rules,
1954. And that list omitted the name of the respondent
no. 1, even though by notification of the same date, i.e.
15.06.2004, the select list of 11 State Civil Service
Officers, including respondent no. 1, was notified. That
select list was approved by the UPSC and prepared by the
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Selection Committee in its meeting held on 18.11.2003.
The position which emerges from the aforesaid is that
the name of respondent no. 1 herein was duly forwarded by
the State Government for induction in IAS cadre. The
UPSC considered the names and selected 11 persons from
the State Civil Service Officers. In this list, issued
vide notification dated 15.06.2004, name of respondent
no. 1 was included meaning thereby UPSC found him fit for
appointment in IAS cadre. However, in another
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notification of the even date, name of the respondent was
excluded from appointment. The reason given was that the
State Government had informed the UPSC vide its letter
dated 18.12.2003 that it had decided to withdraw the
integrity certificate in respect of the respondent by
another letter dated 27.05.2004, the state Government had
also informed the UPSC that a charge-sheet was issued to
the respondent. On that basis, UPSC had sent letter
dated 11.6.2004 to the Central Government pointing out
that it had approved the recommendations of the Selection
Committee Meeting held on 18.11.2003, with the
modification that inclusion of the name of respondent no.
1 in the select list would be provisional and subject to
clearance of the disciplinary proceedings pending against
him and grant of integrity certificate by the State
Government.
Respondent no. 1 challenged his exclusion by
approaching the Central Administrative Tribunal in the
form of OA filed under Section 19 of the Administrative
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Tribunal Act. Taking note of the aforesaid developments,
the Tribunal did not interfere with the decision of the
Government and the only direction given was to
expeditiously bring to an end two inquiry proceedings
against him.
Feeling dissatisfied with the aforesaid outcome,
respondent no. 1 challenged the order of the Tribunal by
means of writ petitions filed in the High Court of
Gujarat under Articles 226 and 227 of the Constitution of
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India. His primary submission was that on 18.11.2003
when his candidature was considered, there was nothing
against him and no charge-sheet was issued either.
Therefore, his name should not have been withheld merely
because some charge-sheet was issued much after the said
date. He relied upon the judgment of this Court in Union
of India Vs. K.V. Jankiraman 1991(4) SCC 109. His
further submission was that once he was found fit for
promotion by the Departmental Promotion Committee
constituted by the UPSC and the recommendations of the
Selection Committee were accepted by the UPSC and no
inquiry was pending as on that date, he was entitled for
promotion. And for this proposition, he relied on the
judgment of this Court in Union of India Vs.Sangram
Keshari Nayak 2007(6) SCC 704. He also referred to
another judgment of this Court in Vijay Singh vs. State
of UP 2012(5) SCC 242 in support of his submission that
even the disciplinary authority cannot legally impose
punishment of withholding integrity certificate unless
such punishment is provided in the relevant rules.
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The case of the petitioner herein, before the High
Court, was that since respondent no. 1 had come under the
zone of consideration for promotion to higher grade in
the year 2003, his name was included in the proposal and
sent to the UPSC. However, after the meeting of the
Selection Committee which was held on 18.11.2003, its
recommendation was received by the State Government from
the UPSC. It had come to the notice of the State
Government that certain preliminary inquiries were going
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on/pending against respondent no. 1 in the Tribal
Development Department and on careful perusal of the
files and papers from that Department, the Government had
taken a conscious decision to withhold the integrity
certificate and initiated detailed inquiry into the
allegations. An IAS officer was entrusted with the task
and on the basis of preliminary inquiry conducted by him,
the State Government had decided to hold the regular
departmental inquiry for which charge-sheet dated
25.5.2004 was served upon the respondent. It was thus
pleaded that the respondent was not entitled to promotion
at that stage in view of the pendency of the inquiry.
After considering the aforesaid arguments and dealing
with them exhaustively, the High Court has allowed the
petition of respondent no. 1 in part directing his
promotion. The High Court has taken into consideration
the relevant Rules & Regulations, namely, Indian
Administrative Service(Recruitment) Rules, 1954 into
consideration and Indian Administrative
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Service(Appointment by Promotion) Regulations, 1955 into
consideration and in particular, Regulations (3), (5),
(6), (7), (9) & (10) of Regulations, 1955. After careful
analysis thereof, in juxtaposition with some of the
Government of India’s decisions on these regulations, it
is pointed out that appointment by promotion from State
Civil Service to Indian Administrative Service is by
selection by a Committee consisting of the Chairman of
the UPSC, the Chief Secretary of the State Government,
the senior-most officer of the IAS cadre other than the
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Chief Secretary, the Head of the General
Administration/Personnel/Revenue Department of the State
Government not below the rank of Secretary to the State
Government and two nominees of GOI not below the rank of
Joint Secretary. The date and venue of the meeting of
the Committee to make the selection is to be determined
by the UPSC. According to Government of India's decision
under Regulation 3, the Chief Secretary to the State
Government, who is the sponsoring authority in respect of
all eligible officers whose cases are placed before the
Selection Committee for consideration, is required to
record an integrity certificate, with reference to the
entries in annual confidential reports of the officer
concerned. Even after such certificate being recorded,
the Selection Committee is required to consider the
question of suitability of the officers for selection
with reference to their integrity and specifically record
in their proceedings that they were satisfied from the
remarks in the confidential reports of the officers,
selected by them for inclusion in the select list, that
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there was nothing against their integrity. Thereafter, a
list of such members of the State Civil Service as are
held by the Selection Committee to be suitable for
promotion has to be prepared. The Selection Committee
has to classify the eligible officers as “outstanding”,
“very good”, “good” and “unfit”, as the case may be, on
an overall relative assessment of their service records,
maintaining inter se seniority of the officers in each
class. The name of any officer included in such list has
to be treated as provisional, if the State Government
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withholds the integrity certificate in respect of such
officer, or any proceedings, departmental or criminal,
are pending against him, or anything adverse, which
renders him unsuitable for appointment to the service,
has come to the notice of the State Government. That
provision for making or treating any name as provisional
is subject to Explanations-I and II of Regulation 5(5),
according to which the proceedings can be treated as
pending only if a charge-sheet has actually been issued
to the officer or filed in a court; and the adverse thing
which came to the notice of the State Government
rendering him unsuitable can be treated to have come to
the notice of the State Government only if the details of
the same have been communicated to the Central Government
and the Central Government is satisfied that the details
furnished by the State Government have a bearing on the
suitability of the officer and investigation thereof is
essential. After the list is so prepared, it has to be
forwarded to the UPSC by the State Government alongwith
the records of all members of the State Civil Service
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included in the list, the records of all members of the
State Civil Service who are proposed to be superseded by
virtue of the list and the observations of the State
Government on the recommendations of the Committee. A
copy of the select list is also required to be forwarded
to the Central Government and the Central Government is
required to send their observations on the
recommendations of the Committee to the UPSC.
Thereafter, under Regulation 7, the UPSC has to consider
the select list alongwith the documents received from the
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State Government and the observations of the Central
Government and, unless it considers any changes
necessary, approve the list. If the Commission considers
it necessary to make any changes in the list, it has to
inform the State Government of the changes proposed and
after taking into account the comments, if any, of the
State Government and the Central Government, the UPSC may
approve the list finally with such modifications, if any,
as may, in its opinion, be just and proper. The list so
finally approved by the Commission would be the “Select
List” of the members of the State Civil Service. If an
officer whose name is included in the select list is,
after such inclusion, issued a charge-sheet or a charge-
sheet is filed against him in a court of law, his name in
the select list shall be deemed to be provisional.
Thereafter, under Regulation 9(1), appointment of a
member of the State Civil Service has to be made by the
Central Government in the order in which the names of the
members of the State Civil Service appeared in the select
list. In case of an officer whose name has been included
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or deemed to be included in the select list
provisionally, under the proviso to sub-regulation (5) of
Regulation 5 or under the proviso to sub-regulation (3)
of Regulation 7, as the case may be, his appointment has
to be made within 60 days after the name is made
forwarded by the Commission in terms of the first proviso
to sub-regulation (4) of Regulation 7. Thus, there are
two stages at which inclusion of name in the list of the
recommended officers could be made provisional; the first
stage is before the list is forwarded to the UPSC by the
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State Government, subject to fulfillment of the
conditions contained in the Explanations to Regulation
5(5). And the second stage for making a name provisional
under Regulation 7(3) is when the Commission finally
approves the list after consideration of the list
prepared by the Selection Committee, the documents
received from the State Government and the observations
of the Central Government. Such latter
provisionalisation of the name included in the Select
List is subject to the condition that the officer
concerned is issued with the charge-sheet or a charge-
sheet is filed against him in a court after his name
being included in the Select List finally approved by the
UPSC.
Even after inclusion of an officer in the final
Select List, the Central Government may not appoint an
officer if it is of the opinion that it is necessary or
expedient so to do in the public interest. However, such
plenary powers conferred upon the Central Government by
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Regulation 10, with an opening non-obstante clause, are
subject to the proviso that no such decision shall be
taken by the Central Government without consulting the
UPSC. It is clear from the language in which Regulation
10 is couched that the special power of the Central
Government to deny appointment to any person, whose name
appears in the select list is conditional and could be
exercised only if an opinion is formed that it is
necessary or expedient so to do in public interest and
even after forming such opinion, the final decision could
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be taken only after consulting the UPSC.
Having regard to the aforesaid legal position
emerging from the reading of the relevant Regulations,
the High Court was of the opinion that promotion of
respondent no. 1 should not be withheld merely because of
the reason that much after the meeting of the Selection
Committee, a charge-sheet was served upon him. Position
in this respect is summed up by the Court in the
following manner:-
“As seen above, admittedly, the
integrity certificate in respect of the
petitioner was not “withheld”, but it was
sought to be withdrawn after one month of
the meeting of the Selection Committee on
18.11.2003, and the charge-sheet having
been issued to the petitioner as late as
on 25.5.2004, inclusion of the petitioner
in the list prepared by the Committee
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could not legally be treated as
provisional under the proviso to
Regulation 5(5). Thus, the intimation by
the State Government for withdrawing the
integrity certificate could not legally
result, at the first stage, into treatment
or inclusion of the petitioner’s name in
the list as provisional. The second stage
for deeming inclusion of the petitioner’s
name to be provisional came under
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Regulation 7(3) only after 11.6.2004 when
the UPSC approved recommendation of the
Selection Committee with the modification
that inclusion of the petitioner in the
select list shall be provisional.
Assuming that all the formalities and
procedure prescribed under Regulations 6,
6-A and 7(2) were duly complied with by
the UPSC, the name of the petitioner in
the select list could be deemed to be
provisional only if, after inclusion of
his name in the select list, a charge-
sheet were issued. That being not the
case and charge-sheet having already been
issued on 25.5.2004 prior to approval and
finalization of the select list on
11.6.2004, the provisions of Regulation
7(3) could not be pressed into service to
deny to the petitioner appointment on the
promotional post under the mandatory
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provisions of Regulation 9(1). It is not
the case of the respondent that the
Central Government had exercised its
powers under Regulation 10 and the
mandatory provisions for consulting the
UPSC were complied with. In that view of
the matter, it would clearly appear that
the State Government had made an imperfect
and preemptive attempt at provisionalising
the name of the petitioner, after his
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selection by the Selection Committee
consisting, inter alia , of three of very
senior civil servants, including the Chief
Secretary, and examination by the
Committee in particular of the aspect of
integrity of the petitioner as required by
GOI’s decision under Regulation 3. The
notifications dated 15.6.2004 notifying
the select list and making appointments
and the subsequent corrigendum dated
16/19.7.2004 also strengthen the inference
that initial withdrawal of the integrity
certificate, issuance of charge-sheet
dated 25.5.2004 and intimation thereof on
27.5.2004 were aimed at excluding the
petitioner from the list of appointees,
even as it is not established that the
charges leveled against the petitioner had
a bearing on the suitability of the
petitioner for promotion and the Central
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Government was satisfied that
investigation into the charges was
essential. In fact, the State Government
has sought to prop up its objections to
promotion of the petitioner by confusing
“withholding” of the integrity certificate
with its “withdrawal”, on the basis of
something adverse against him coming to
notice of the Government after
recommendation of his name by the
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Selection Committee; and compliance with
Explanation-II to proviso to Regulation
5(5) is not even pleaded. In any case,
the notification dated 15.6.2004 under
Regulation 7(3) notifying that the
petitioner was included in the final
select list approved by the UPSC could not
have legally been made provisional under
Regulation 7(3) as discussed hereinabove
and the conditions contained in Regulation
7(4) could not legally be imposed as was
sought to be done by the corrigendum dated
16/19.7.2004. Therefore, the conclusion
arrived at in the impugned order of CAT
that “… the latter developments could have
been taken into consideration for making
his name provisional and there was an
administrative error in including the name
of the applicant in the select list
without showing the word provisional ” was
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superficial, erroneous and illegal and
hence required to be set aside.”
It is in the aforesaid circumstances that the
High Court took the view that the decision of the
petitioner herein withdrawing the integrity
certificate and that of the UPSC which was
accepted by the Union of India in making the
promotion of respondent no. 1 herein provisional
was bad in law and not permissible under the
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extant regulations.
Even while setting aside the decision of the
Central Administrative Tribunal, in the writ
petition which is filed by respondent no. 1
against the penalty imposed pursuant to the
departmental proceedings held against him, the
High Court has clearly stated that respondent no.
1 herein would claim such benefits as
consequential relief only in case he is exonerated
fully in the departmental inquiry.
Thus, the effect of the aforesaid direction
giving him the relief only in case he is
exonerated under the departmental inquiry would be
that respondent no. 1 would be entitled to
promotion, and the consequential benefit in case
the penalty imposed against him stands. In view
of that, it may not be necessary to entertain this
petition in exercise of our jurisdiction under
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Article 136 of the Constitution of India. We may
record at this stage that respondent no. 1 had
filed special leave petition against the aforesaid
judgment apportioning the relief portion.
Respondent no. 1 wanted to get the benefit of
promotion irrespective of the outcome of the writ
petition pursuant to the departmental proceedings
against him. That SLP has been dismissed by this
Court.
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However, learned counsel for the petitioner
has two apprehensions in mind. In the first
instance, it is argued that in the writ petition
which is filed by respondent no. 1 challenging the
imposition of penalty, the observations made by
the High Court in the impugned judgment may not
come in the way of the petitioner. It is further
argued that, according to the petitioner, the High
Court has not dealt with the regulations
appropriately and the interpretation given by the
regulations is incorrect and the impugned judgment
may not be cited in future.
Insofar as first submission is concerned,
Mr. Sanjoy Ghose, learned counsel for respondent
no. 1 fairly submits (there cannot be any
exception thereto even otherwise) that the writ
petition which is filed by respondent no. 1
against the departmental proceedings, has to be
dealt with by the High Court on its own merits
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uninfluenced by the observations made in the
impugned judgment as the subject matter of the
impugned judgment was entirely different.
Insofar as second aspect is concerned,
Mr. Sanjoy Ghose, learned counsel again stated
that he has no objection if the question of law,
that is, the question relating to the
interpretation of the regulations, is kept open.
It is ordered accordingly.
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As respondent no. 1 has already retired from
service, we request the High Court to decide the
writ petition filed by respondent no. 1 as
expeditiously as possible preferably within six
months.
The special leave petition is disposed of
accordingly.
…………………………………………J.
(J. CHELAMESWAR)
………………………………………..J.
(A.K. SIKRI)
NEW DELHI
AUGUST 12, 2014.
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