G. MOHANASUNDARAMversusR. NANTHAGOPAL AND ORS.

                       [2014] 9 S.C.R. 920


A                    G. MOHANASUNDARAM
                             v.
                  R. NANTHAGOPAL AND ORS.
                 (Civil Appeal No. 6614 of 2014)
                          JULY 21, 2014
B
          [SUDHANSU JYOTI MUKHOPADHAYA,              AND
                 V. GOPALA GOWDA, JJ.]

          Indian Administrative Service (Appointment by
C   Promotion) Regulations, 1955: Regulation 5 - Promotion -
    State Civil Service - Disciplinary proceedings against first
    respondent - State Government withheld ACRs of few years
    of certain candidates including the first respondent on the
    ground that the ACRs were not valid - First respondent was
o   selected - Appellant was not selected - OA by appellant -
    When the matter was pending, the State Government dropped
    the disciplinary proceedings - By an amendment application
    filed in pending OA, the appellant challenged appointment of
    first respondent - CAT quashed the notifications by which
E   appellant not selected and by which first respondent
    appointed - High Court set aside order of CAT - Held: CAT
    rightly held that Selection Committee did not take into
    account all relevant facts and records to show that first
    respondent was superior to the appellant - CAT noticed that
F   State Government dropped proceedings against first
    respondent without giving detailed reasons for such action -
    Order passed by CAT upheld with direction to reconsider the
    name of appellant vis-a-vis first respondent for promotion.

        Allowing the appeal, the Court
G
       HELD: 1. As per Regulation 5(4) of the Indian ·
    Administrative Service (Appointment by Promotion)
    Regulations, 1955, it is mandatory for the Selection
    Committee to make an overall relative assessment of
H                               920
   G. MOHANASUNDARAM v. R. NANTHAGOPAL                921


'service records' of the eligible candidates. As per first A
proviso to Regulation 5(5) the name of such officer so
included in the Select List against whom departmental
proceedings are pending is provisional. The State
Government did not send the relevant service records of
the first respondent, for the preceding five years prior to B
selection on the ground that they are not valid. The name
of the first respondent was included provisionally
subject to clearance in the disciplinary proceedings
pending against him. Withholding of ACRs of the year
2003-2009 of the first respondent on a wrong c
presumption that they were invalid was illegal and fatal
in the case of first respondent towards his appointment.
The CAT rightly held that the Selection Committee did not
take into account all relevant facts and records to hold
that the first respondent was superior to appellant. In the
                                                             0
departmental proceedings, Enquiry Officer had held that
the charge no.2 was proved against the first respondent.
In spite of the same, the State Government dropped the
charges. The CAT held that the State Government failed
to furnish the valid reasons for dropping charges and for
subsequent issuance of integrity certificate to the first E
respondent. For the said reason the CAT held that the
action on the part of the State is a case of hasty decision.
The High Court exceeded its jurisdiction in discussing the
charges framed against the first respondent and in
justifying the grounds for dropping the ctlarges, though F
it was not disclosed by the State Government. The
impugned judgment passed by the High Court is set
aside and the order passed by the CAT is upheld with
direction to the respondent(s) to reconsider the name· of
the appellant vis-a-vis first respondent for promotion to G
the post of Indian Administrative Service against the
vacancies for the year 2009. [Paras 19 to 23, 27 to 32)
[927-H; 928-A; 929-B-E; 932-E-H; 933-A-H; 934-A]

                                                            H
    922      SUPREME COURT REPORTS                  (2014] 9 S.C.R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No,
    6614 of 2014.
        From the Judgment & Order dated 8.07.2013 in WP No.
    5508 of 2013 of the High Court of Madras.
B       P.P. Rao, G. Balaji, Akshat Kulshreshta, Mahalakshmi
    Pavani for the Appellant.
         Basava Prabu Patil, G. Shankaran, llango, T. Harish
    Kumar, B. Balaji, R. Rakesh Sharma, S. Anand, Binu Tamta for
    the Respondents.
c         The Judgment of the Court was delivered by
        SUDHANSU JYOTI MUKHOPAOHAYA, J. 1. Leave
    granted.
          2. This appeal is directed against the judgment and order
D   dated 8th July, 2013 passed by the Division Bench of the High
    Court of Judicature at Madras in Writ Petition No.5508 of 2013.
    Initially, the appellant herein challenged the Government
    notifications dated 10th February, 2012 and 13th April, 2012
    whereby 1st respondent was promoted and appointed to the
E   Indian Administrative Service, before the Central Administrative
    Tribunal, Madras Bench by filing OA No.249 of 2012 and the
    same was allowed by order dated 18th February, 2013. By the
    impugned judgment the High Court set aside the said order
    dated 18th February, 2013 passed by the Central
F   Administrative Tribunal.
          3. The factual matrix of the case is as follows:
         The appellant and the 1st respondent are officers of Tamil
    Nadu State Civil Services. They were considered for promotion
G   to the Indian Administrative Service (hereinafter referred to as
    the "IAS") against certain percentage of posts available for
    members of the State Civil Service.
        4. On 1st September, 2009, the State of Tamil Nadu
    prepared a list of 27 eligible candidates for consideration for
H   appointment against 19 vacancies of IAS for the year _2009.
    G. MOHANASUNDARAM v. R. NANTHAGOPAL                       923
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]
The list was sent to the Secretary, Union Public Service              A
Commission (hereinafter referred to as the "UPSC"). The name
of the appellant was included at serial No.26 and the name of
the 1st respondent was placed at serial No.16 of the said list
prepared on the basis of seniority list of the State Civil Service.
In the seniority list of State Civil Service the appellant was        B
placed at serial No.59 and 1st respondent at serial No.34.
      5. On 4th November, 2009, the State Government issued
a charge-sheet against the 1st respondent under Rule 17(b)
of the Tamil Nadu Civil Service (Discipline and Appeal) Rules
for certain irregularities committed by him while working as          C
Senior Regional Manager, Tamil Nadu State Marketing
Corporation Ltd. On 3rd February, 2011, the State Government
prepared a list of 10 eligible candidates for appointment to the
IAS cadre against the 2009 vacancies. The appellant was
shown at serial No.9 and 1st respondent at serial No.4. The           D
list was forwarded to the UPSC.

     6. On 10th March, 2011, the UPSC sought for clarifications
and some more information from the State Government. By its
letter dated 12th April, 2011, the State Government enclosed          E
the Annual Character Rolls (ACRs) of all the eligible candidates,
which according to the State Government were valid. The State
Government withheld some of the AC Rs of certain candidates
including the 1st respondent on the ground that the ACRs were
not valid. The ACRs of the 1st respondent pertaining to the           F
period 27th July, 1998 to 10th June, 2002 i.e., for 5 years
alone, were forwarded to the UPSC and the ACRs of the 1st
respondent for the period from 10th June, 2002 to 31st March,
2009 were withheld by the State.

     7. On 7th December, 2011, the State Government                   G
forwarded a list of 13 candidates for promotion to the IAS cadre
against 2 vacancies for the year 2010. The appellant was
shown at serial No.8 and the 1st respondent at serial No.4. The
AC Rs of all the candidates including the 1st respondent for the
period 26th May, 2006 to 7th January, 2008 were forwarded.            H
     924      SUPREME COURT REPORTS                  [2014] 9 S.C.R.


A        8. The Selection Committee prepared a Select List of
     2009 and 2010 on 27th December, 2011 against the respective
     vacancies of those years. The appellant was not selected.
     According to the appellant, though his ACRs were far better
     than the AC Rs of other candidates including 1st respo_ndent,
B    he was not selected.

         9. A notification dated 10th February, 2012 was issued by
     the Government of India and the selected candidates were
     appointed to the IAS cadre for the vacancies of 2009 and
     2010.
c
           10. The appellant having not selected/promoted filed
     Original Application No.249 of 2012 before the Central
     Administrative Tribunal, Madras Bench challenging the
     notification 10th February, 2012 passed by the Government of
D    India. When the matter was pending, on 15th March, 2012 the
     State Government dropped the disciplinary proceedings
     against the 1st respondent taking into consideration the enquiry
     report and reply filed by the 1st respondent By an amendment
     application filed in pending OA, the appellant challenged the
E    notification of 13th April, 2012, by which 1st respondent was
     appointed to the Indian Administrative Service. The UPSC,
     State Government and 1st respondent filed their respective
     replies to which the appellant filed a rejoinder. According to the
     UPSC, the selection was made in accordance with the rules
F    and the valid ACRs which were forwarded by the State
     Government. The State Government in its reply justified its
     action in sending only the valid AC Rs and the 1st respondent
     disputed the allegation made against him.

            11. The Central Administrative Tribunal, Madras Bench by
G     its judgment and order dated 18th February, 2013 allowed the
    ··Original Application filed by the appellant, quashed the
      notification dated 10th February, 2012 in so far as not including
      the name of the appellant herein and quashed the notification
      dated 13th April, 2012 by which 1st respondent was appointed.
H
   G. MOHANASUNDARAM v. R. NANTHAGOPAL                    925
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     12. The High Court at the instance of the 1st respondent     A
allowed the writ petition and set aside the order passed by the
Central Administrative Tribunal, Madras Bench in OA No.249
of 2012.

     13. Learned counsel for the appellant submitted that the B
High Court by the impugned judgment and order dated 8th July,
2013 reversed the well reasoned judgment and order dated
18th February, 2013 of Central Administrative Tribunal, Madras
Bench, ignoring the fact that the 1st respondent was facing
major charges and had adverse entry in the ACRs at the time C
of selection. It was contended that though ACRs for the period
from 1st October, 2002 to 31st March, 2009of1st respondent
were available they were not forwarded by the State
Government to the UPSC. According to him in the matter of
promotion and compulsory retirement from service, entire
service record of the officer concerned should have been D
considered.

     14. Learned senior counsel for the appellant further
contended that respondents acted arbitrarily in not taking into
consideration the relevant AC Rs of the 1st respondent on the     E
ground that they were written beyond the time prescribed by
the State Government.

     15. Learned counsel for the UPSC contended that at time
of holding Selection Committee meeting for the Select List of F
2009, the State Government forwarded the ACRs stated to be
valid and duly certified. The meeting was then convened for 4th
December 2009, however, when the Committee met on 4th
December, 2009, it was observed that certain issues relating
to the validity of the ACRs of officers in the zone of
consideration were required to be resolved by the State· <
Government, and the meeting was, therefore deferred.
Subsequently, when the Select List for 2009 was to be drawn
up, the State Government forwarded the ACRs vide its letter
dated 10th March, 2010 along with the validity certificate. The
    926     SURREME COURT REPORTS                  [2014] 9 S.C.R.


A   meeting was convened on 26th May, 2010 a,pdthtl'Select List
    of 2009 for 19 vacancies was draw~ .. up. 'The 1st respondent
    was considered at serial No.17 ·and his ACRs for the certain
    period were consider~d. But since his ACRs for the period
    2003-2004 to 2005-2006 were not available, the Committee
B   in accordance with the guidelines considered the ACRs for the
    period 1999 to 2002.

        16. Learned counsel for UPSC further submitted that on
  31st March, 2010, the Government of India determined 7
  vacancies for the year 2010. The Select List of 2010 was
C renamed as 2009A in view of the judgment of the High Court
  of Punjab and Haryana regarding overlapping Select List for a
  particular year. The State Government forwarded the ACRS
  vide letter dated 3rd February, 2011. On the scrutiny of the
  ACRs, it was found that the ACRs of some of the officers
D including 1st respondent which were furnished during the last
  Selection Committee meeting were not furnished before the
  present Selection Committee and the ACRs which were not
  furnished earlier were furnished. The reason for this change was
  asked from the State Government vide letter dated 10th March,
E 2011 to which the State Government replied by letter dated 12th
  April, 2011 that the State Government had considered the
  ACRs written by the Reporting Officer or Scrutinizing Officer
  within a period of 9 months as valid for the Select List 2009
  which were forwarded to UPSC considering the fact the officers
F reported upon need not be penalized for no fault of theirs. It was
  further contended that for the Select List 2009A, the State
  Government considered that the ACRs written by both the
  Reporting Officer and Scrutinising Officer within a period of 6
  months are valid, barring certain cases for which ACRs written
G for the periods slightly exceeding six months. The matter was
  once again taken up by UPSC with the State Government as
  the revision in the time limit for writing of ACRs with reference
  to the earlier selection would lead to anomalous situation. The
  State Government by its letter dated 1st December, 2011
H intimated the UP.SC that with a view to maintain consistency
    G. MOHANASUNDARAM v. R. NANTHAGOPAL                    927
       [SUDHANSU JYOTI MUKHOPADHAYA, J.]
after obtaining orders of the competent authority it was decided A
that the ACRs written within 9 months may be considered valid ·
for preparation of Select List of 2009A and the Officers need
not be penalized for no fault of theirs. The meeting of the
Selection Committee was held on 27th December, 2011. In the
Select List of 2009A, 1st respondent was considered at serial B
No.4 and he was assessed for the period 2004 to 2009.
However, in view of the ACRs 'not available' for the period 2004
to 2006 and for the year 2008-2009, the Committee
considered the ACRs of preceding years 1999 to 2002. In this
regard the UPSC has also referred to the Govemment's c
guidelines issued from time to time.

      17. It was further submitted on behalf of the UPSC that
since the rule of the State Government regarding the period of
writing of AC Rs. remained the same to the Select Lists of 2009
and 2009A, the Selection Committee as per the internal             D
guidelines adopted the assessment of previous Selection
Committee. Therefore, assessment of ACR of 1st respondent
for the period from 26th May, 2006 to 6th March, 2007 certified
as valid by the State Government for select list of 2009 was
adopted by Selection Committee which met to prepare the            E
select list of 2009A. It was also submitted that the State
Government is required to place only valid ACRs in the Dossier
of officers under the zone of consideration for a particular
Select List, as was done in this case.
                                                                   F
     18. We have considered the rival submissions made on
behalf of the parties. After giving our careful consideration to
the facts and circumstances of the case, we are of the view that
the High Court was not justified in interfering with the well
reasoned order passed by the Central Administrative Tribunal.
                                                                   G
    19:- Promotion and appointment of officers of State Civil
Service to Indian Administrative Service are governed by Indian
Administrative Service (Appointment by Promotion)
Regulations, 1955. As per Regulation 5(4) of the Indian
Administrat!ve Service (Appointment by Promotion)                  H
      928       SUPREME COURT REPORTS                   [2014] 9 S.C.R.


 A     Regulations, 1955 it is mandatory for the Selection Committee
     · to make an overall relative assessment of 'service records' of
       the eligible candidates. The said Regulation reads as follows:

            "Regulation 5(4) - The Selection Committee shall classify
            the eligible officers as 'Outstanding', 'Very Good, 'Good'
 B
            or 'Unfit', as the case may be, on an overall relative
            assessment of their Service records."

        20. Under Regulation 5(5), the list shall be prepared first
   ~mongst the officers finally classified as 'Outstanding' and
 C then from amongst those similarly classified as 'Very Good' and
   so on. The said regulation reads as follows:

            "Regulation 5(5) - The list shall be prepared by including
            the required number of names, first from amongst the
 D          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 inter-se within each
            category shall be in the order of their seniority in the State
            Civil Service.
 E
            Provided that the name of any 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
 F          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.                                 ·

 G          Provided further that while preparing year-wise select lists
            for more than one year pursuant to the second proviso
            to sub-regulation (1), the officer included provisionally in
            any of the select list so
                                   I
                                      prepared, shall be considered for
            inclusion in the seleyt list of subsequent year in addition
            to the normal consideration zone and in case he is found
 H
   G. MOHANASUNDARAM v. R. NANTHAGOPAL                      929
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
    fit for inclusion in the suitability list for that year on a    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."

     As per first proviso to Regulation 5(5) the name of such
                                                                    B
officer so included in the Select List against whom
departmental proceedings are pending or anything adverse as
has come to the notice of the State Government which renders
him unsuitable for appointment to the service is provisional.

     21. Regulation 6 relates to consultation with UPSC. As per     C
the said Regulation the list prepared in accordance with
Regulation 5 is required to be forwarded to the UPSC by the
State Government along with records of all members of the
State Civil Service included in the list.
                                                                    D
     22. From the stand taken by the respondents, it is clear
that the State Government did not send all the service records
of eligible candidates to UPSC for consideration. Particularly,
the relevant service records of 1st respondent, for the preceding
five years prior to selection were not forwarded on the ground
                                                                    E
that they are not valid.

     23. The minutes of the meeting_ of the Selection Committee
dated 27th December, 2011 as recorded at paragraph 5.3 and
5.4 of the proceedings suggests that the service records of all
the officers upto the year 2008-2009 were considered and on         F
th~t basis the 1st respondent was recommended for pro'tnotion.
But this is far from truth as apparent from paragraph 5.3, 5.4
and 5.5 of the proceedings as quoted hereunder:

     "5.3. The Committee examined the service records of the        G
     officers whose names are included in the Annexure and
     who fulfilled the conditions of eligibility for promotion to
     the /AS. The Committee took into consideration the
     ACRs of the officers (certified as valid by the State
     Government vide letter dated 07.12.2011) upto the year         H
    930       SUPREME COURT REPOR.TS                  [2014] 9 S.C.R.

A          2008-09. On an overall relative assessment of their
           service records, the Committee assessed them as
           indicated against their names in the Annexure. While
           assessing their suitability, the Committee did not take
           into consideration any adverse remarks in the ACRs of
B          the officers which were not communicated to them.

           5.4 The Committee examined the records of the officers
           whose names are included in Annexure-1 and who
           fulfilled the conditions of eligibility, up to the year 2008-
           09. On an overall relative assessment of their service
c          records, the Committee assessed them as indicated
           against their names in Annexure-1. while assessing their
           suitability, the Committee did not take into consideration
           any adverse remarks in the ACRs of the officers which
           were not communicated to them.
D
           5. 5 On the basis of the above assessment, the
           Committee selected the officers whose names are
           mentioned below as suitable for promotion to the Indian
           Administrative Service and placed them in the following
E          order:-

      SI. No.              Name of the                Date of
                           Officer (Smt./Shri)        Birth

      1.                   P. Senthilkumar (SC)       18.12.1957
F
      2.                   V. Kalaiarasi              29.03.1969
      3.                   G. Govindaraj (SC)         26.04.1960
      4.                   V. Mohanraj (SC)           22.01.1957
G
      5.*                  R. Nanthagopal             23.05.1964
      6.                   N. Vankatachalam           29.04.1965
      7.                   C. Manoharan (SC)          15.12.1955
H
   G. MOHANASUNDARAM v. R. NANTHAGOPAL                    931
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
    *The names at S.No.5 has been included in the list            A
    provisionally subject to clearance in the disciplinary
    proceedings pending against him and grant of integrity
    certificate by the State Government."

    The name of the 1st respondent was included provisionally     8
subject to clearance in the disciplinary proceedings pending
against him and grant of integrity certificate by the State
Government.

     24. The appellant had challenged the action of State
Government declaring an ACR invalid in absence of any valid       C
reason. According to the learned counsel for the appellant,
merely because an ACR has been written beyond the period
of 9 months, it cannot be held to be invalid in absence of
limitation prescribed under any rule or guideline.
                                                                  D
     25. On behalf of the State Government reliance has been
placed on Government Order dated 4th April, 2007 issued by
Personnel and Administrative Reforms (K) Department of State
of Tamil Nadu. The Government issued guidelines with respect
to writing of the Annual Confidential Report by the said          E
Government Order. Th~ relevant portion of the said order reads
as follows:

    "6. The Government have examined the above issue
    afresh and in supersession of all the existing instructions
    the following fresh instructions are issued in respect of     F
    writing of confidential reports by the Reporting Officers
    whenever they are demitting office either on transfer or
    for other reasons in the middle of the year. The following
    instructions are to be followed scrupulously.
                                                                  G
          "Whenever the Reporting Officers are to relinquish
    charge on transfer or for other reasons, they should write
    the confidential reports in respect of all his subordinate
    officers and the handling over charge report should
    accompany a certificate to his higher officer that he had     H
        932      SUPREME COURT REPORTS                 [2014] 9 S.C.R.


    A         completely written the confidential reports on all his
              subordinate officers. However, it it is not possible to
              adhere to the above procedure, due to administrative
              reasons, he may take a reasonable time to write
              confidential reports but this time limit should not
    s         ordinarily exceed 90 days from the date af his demitting
              office."

           26. In the guidelines issued by the State Government,
      there is nothing to declare any Annual Confidential Report
    C invalid. The period of 90 days prescribed therein is not
      mandatory but directory. The 90 days period is also to be
      counted from the date of demitting office by the officer who
      writes the A.C.R.

              27. In view of the discussion above, we hold that in terms
    D   of Regulation 5(4) of the Indian Administrative Service
        (Appointment by Promotion) Regulations, 1955 it was
        incumbent upon State Government to forward complete service
•       records of all the eligible candidates including the 1st
        respondent to the UPSC for considering them for promotion to
    E   IAS cadre. Withholding of ACRs of the year 2003-2009 of the
        1st respondent on a wrong presumption that they were invalid,
        is illegal and fatal in the case of 1st respondent towards his
        appointment to the post of Indian Administrative Service. The
        aforesaid fact though came to the notice of the UPSC which
    F   sought clarification from the Government of Tamil Nadu, the
        State Government misled the UPSC which resulted in wrong
        assessment of service records of 1st respondent in violation
        of Regulation 5(4) read with Regulation 6 of the Indian
        Administrative Service (Appointment by Promotion)
    G   Regulations, 1955.
          28. The Central Administrative Tribunal by its judgment
      dated 18th February, 2013 rightly held that the Selection
      Committee has not taken into account all relevant facts and
      records to come to a conclusion that the 1st respondent is
    H superior to appellant.
   G. MOHANASUNDARAM v. R. NANTHAGOPAL                        933
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     29. The Central Administrative Tribunal also considered          A
the issue of departmental proceedings pending against the 1st
respondent under Rule 17(b) of the Tamil Nadu Service
(Discipline and Appeal) Rules, was noticed by the Selection
Committee as apparent from recommendation of the name of
1st respondent with a star mark shown against the same with           B
a note that in view of the pendency of the departmental
proceedings inclusion of the name of 1st respondent was
provisional. In the said departmental proceedings Enquiry
Officer after going through the evidence and reply submitted by
the 1st respondent held that the charge No.2 is proved against        c
the 1st respondent. In spite of the same, the State Government
dropped the charges.

     30. The Tribunal noticed that the State Government
dropped the charges against the 1st respondent without giving
detailed reasons for such action. Considering the same the            D
Tribunal held that the State Government failed to furnish the valid
reasons for dropping charges and for subsequent issuance of
integrity certificate to the 1st respondent. For the said reason
the Tribunal held that the action on the part of the State is a
case of hasty decision.                                               E

     31. The High Court failed to appreciate the guidelines
dated 4th April, 2007 issued by the State Government with
regard to the ACR and wrongly accepted the stand of the
respondents that invalid ACRs were not to be considered. The          F
High Court also exceeded its jurisdiction in discussing the
charges framed against the 1st respondent and in justifying the
grounds for dropping the charges, though it was not disclosed
by the State Government.

     32. For the reasons aforesaid, we set aside the impugned         G
judgment and order dated 8th July, 2013 passed by the High
Court in Writ Petition No.5508 of 2013, upheld the order passed
by the Central Administrative Tribunal dat_ed 18th February,
2013 with direction to the respondent(s) to reconsider the name
of the appellant viz-a-viz 1st respondent for promotion to the        H
    934       SUPREME COURT REPORTS              [2014] 9 S.C.R.


A post of Indian Administrative Service against the vacancies for
  the year 2009A. If necessary, a fresh Selection Committee or
  a Review Committee shall be constituted and reconvened. The
  process of selection be completed within three months. The
  order passed by the Tribunal stands modified to the extent
B above.

        33. The appeal is allowed with the aforesaid observations
    and directions. No costs.

    Devika Gujral                                   Appeal allowed.
c