Holding

The UPSC’s selection was in strict compliance with the amended IFS (Appointment by Promotion) Regulations, and the orders of the High Court and the Tribunal are set aside.

Summary

The Union Public Service Commission (UPSC) selected officers for promotion from the State Forest Service to the Indian Forest Service (IFS) for the year 1998 in accordance with the IFS (Appointment by Promotion) Regulations, 1966 as amended on 31‑12‑1997. The first respondent, a Deputy Conservator of Forest, was not placed on the select list and challenged the decision, obtaining relief from the Central Administrative Tribunal, which was affirmed by the Madras High Court. UPSC appealed, contending that the selection complied with the statutory regulations, including provisions for provisional inclusion of officers with pending disciplinary proceedings and the correct determination of vacancies and age‑limit criteria. The Supreme Court held that the selection was strictly governed by the amended regulations, that provisional inclusion of "tainted" officers was permissible under Regulation 5(4), and that the High Court and Tribunal had erred by overlooking these statutory provisions and by not impleading necessary parties. Consequently, the Court set aside the orders of the High Court and the Tribunal and allowed the appeal.

Issues considered

The selection of State Forest Service officers for promotion to the IFS must be governed by the IFS (Appointment by Promotion) Regulations, 1966 as amended.
Whether officers against whom disciplinary proceedings are pending can be provisionally included in the select list under Regulation 5(4).
The correct determination of the number of vacancies and the size of the select list for the year 1998 in view of the amendment and transitional provisions.
The applicability of the age‑limit provision (54 years) to officers such as K.S. Krishnan during the transition period.
Whether the High Court and Tribunal erred in not impleading necessary parties and in their interpretation of the regulations.

Legislation cited

Indian Forest Service (Appointment by Promotion) Regulations, 1966s. Regulation 5(3), s. Regulation 5(4)

Subjects

promotionIndian Forest Serviceselection liststatutory regulationsdisciplinary proceedingsage limitvacancy determinationCentral Administrative TribunalUnion Public Service Commission

Judgment

A UNlON PUBLIC SERVICE COMMISSION
v. ~
I

S. THIAGARAJAN AND ORS.

FEBRUARY 15, 2007
I
B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Service Law.:

Indian Forest Service (Appointment by Promotion) Regulations, 1966;
C r.5 with amendnu:nt effected vide Notification dated 31.12.1997:

Promotion-~Non-inclusion of Deputy.Conservator of Forest/State Forest
Service Officer in select list for promotion to Jndian Forest Service but
inclusion of tainted officers therein-Correctness of-Held: Both the Courts
D below overlooked relevant provisions under the Regulations and also effect
of amendment made in Regulations-Selection conducted strictly in
accordance with statutory regulations and in terms of clarification issued by
Government ofJndia in connection thereof-Names of tainted officers included
provisionally in select list in terms of r.5(4)-Courts below, thus, erred in
holding that names ofsuch officers should not have been included-Moreover,
E incumbent officer's name was duly considered by the Selection Committee, he
was not included in the select list as Officers having better grading available
and also due to statutory limit on the size of the select list-Hence, orders
of Courts below vitiated-Orders also liable to be set aside on ground of
non-impleadment of necessary parties.

F Selection of IFS from State Forest Service Officers-Selection
procedure-Effect of amendment-Discussed. 'f- -.

Name of the first respondent, Deputy Conservator of Forest, a State
Forest Service Officer was not included in the select list, for promotion to
the Indian Forest Service. He made a representation, which was rejected by
G the authority concerned. Against this rejection the first respondent filed an
0.A. before the Central Administrative Tribunal, which was allowed by the
Tribunal. Against the order of the Tribunal the appellant, Union Public Service
Commission, filed a writ petition before the High Court. Agreeing on the view
taken by the Tribunal, High Court dismissed the writ petition. Hence the
H 724
U.P.S.C. v. S. TH!AGARAJAN 725
present appeal. A
Allowing the appeal, the Court

HELD:l.1. Both the High Court and the Tribunal overlooked the fact
that the selection of State Forest Services Officers for promotion to the Indian
Forest Service are governed by the IFS (Appointment by Promotion) B
Regulations, which are statutory in nature. They did not also take. into account
the fact that the IFS Promotion Regulations were amended vide notification
dated 31.12.1997, effective from 1.1.1998 bringing about certain changes.
(Para - 11 I (728-E, Fl

1.2. Appellant conducted the selections strictly in accordance with the C
statutory regulations and orders issued by the Government of India, and hence
there was neither any· infirmity nor arbitrariness involved in the selection,
nor was the procedure adopted by the Selection Authority dubious and
questionable as held by the High Court. (Para -12) (n8-G, H)

2.1. Since the definition of the word 'year' underwent a change after D
the amendment of the Regulations, there was a transition period between the
ceasing of the effect of the old Regulations and the coming into effect of the
amended Regulations. Under the pre-amended Regulations, select lists were
to be prepared on a financial year basis whereas after the amendment, select
lists were to be prepared on a calendar year basis. In view of this, after E
preparation of the selection list of 1996-97, the next selection list would be
for the year 1998. As such, there would not be any select list prepared for
the period April, 1997 to December, 1997. In order to safeguard the interest
oftliose officers who would thus be adversely affected by the transition period
from April, 1997 to December, 1997 during which no select list would be
prepared, the Government oflndia issued special instructions. (Para -16) F
(730-C, D, E)

2.2. As regards the inclusion of tainted officers in the select list of
1998, the High Court and Tribunal did not notice that provisional inclusion
of these officers in the select list was done as per the express provision of the
Promotion Regulations i.e. Regulation 5(4). (Para - 18) (731-G) G
2.3. If an officer against whom disciplinary proceedings are pending is
considered by the Selection Committee, his name is included in the select
list provisionally, if he is otherwise found suitable for inclusion. He cannot
be appointed to the IFS till his inclusion is declared as unconditional and final
by the UPSC. In the instant case two officers were included provisionally in H
I I

726 SUPREME COURT REPORTS [2007] 2 S.C.R.

A the select list of I998 subject to their clearance in the pending disciplinary
cases as such inclusion was in consonance with the Promotion Regulations.
Further, the courts below did not appreciate that under the Promotion
Regulations, an officer who is included in the zone of consideration has to be
considered by the Selection Committee even if disciplinary proceedings are
pending against him. The name of such an officer is included provisionally in
B the select list, if he is otherwise found suitable for inclusion. The courts below
therefore erred in holding that the names of such. officers should not be
considered at all. Thus the findings of the High Court and Tribunal are without
noticing the express provisions of the statutory Regulations, in accordance ._.
with which the Selection Committee prepared the select list. Hence, there
C orders are vitiated. [Paras I9 and 20) [732-E, F, G, H; 733-A)

3.1. The Courts below erred in holding that merely because the
respondent no. I was qualified and there was no case pending against him, his
name should have been included in the select list. The fact that he was eligible
and qualified only entitles him to be considered for selection under the
D Promotion Regulations, but does not give him any preference over others who
have earned better grading than him. Respondent no.I was duly considered
by the Selection Committee at Sl.No.11 and was addressed as 'Good'. However,
he was not included in the select list as officers having better grading were
available and also due to the statutory limit on the size of the select list.
E [Para 2I) [733-B, C]

3.2. Orders of the High Court and the Tribunal are also liable to be set ·•
aside on the ground that the necessary parties have not been impleaded. Hence
the Original Application before the Tribunal was liable to be dismissed on
this ground alone. [Para 22) (733-D)
F Prabodh Verma and Ors, etc., etc. v. State of Uttar Pradesh and Ors,
etc., AIR (1985) SC I67, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 782 of2007.

G From the Judgment/final Order dated 23.12.2005 of the High Court of
Judicature at Madras in WP No. 30223/2002.

L. Nageshwar Rao, B. Datta, ASG, Binu Tamta for the Appellant.

KailashVasdev, P.N. Ramalingam and V. Balaji for the Respondents.

H
U.P.S.C. v. S. TH!AGARAJAN [MARKANDEY KAT JU, J.] 727

- -"
The Judgment of the Court was delivered by

MARKANDEY KATJU, J. 1. Leave granted.
A

2. This appeal has been filed against the impugned judgment of the
Madras High Court dated 23.12.2005 in Writ Petition No.30223 of2002.
B
3. Heard learned counsel for the parties and perused the record.

4. The first respondent was recruited as Forest Ranger and was promoted
as Assistant Conservator of forest on 12. 7.1982 and he was further promoted
as Deputy Conservator of Forest on 20.9.1996. He was eligible for inclusion
in the select list for promotion to the Indian Forest Service. Since his name c
was not included in the select list, he made a representation and that
representation was rejected. Against this rejection the first respondent filed
an 0.A. before the Central Administrative Tribunal, which allowed the said
application.

5. The contentions of the first respondent before the said Tribunal were: D
{a) Even though he was fully qualified and eligible for inclusion of his
name in the select list for the year 1998, his name was not considered
y and included in the said year.

(b) Though there were six vacancies, only two officers were selected. E

(c) As far as the selection of one Mr. K.S. Krishnan is concerned, he
had already crossed the age limit of 54 years, yet his name was
included in the select list for the year 1998 and no valid reasons have
been assigned by the authority concerned for the same.
F
(d) The selection committee selected two officers of the State Cadre
... ~
against whom vigilance enquiry were already pending.

6. The Tribunal, after careful consideration of the contentions of both
the sides, allowed the O.A. in favour of the first respondent, and passed the
following order in favour of the first respondent:
G
"(a) The impugned order dated 24.1.2000 is q4ashed.
~
(b) The official respondents are directed to consider the case of the
applicant by constituting a review DPC for inclusion in the select list
and appointment ofIFS. This exercise shall be completed within three
H
..

728 SUPREME COURT REPORTS [2007] 2 S.C.R.

A months of receipt of a copy of this order by the official respondents."

7. Against the aforesaid order of the Tribunal dated 17.4.2002, the
f-
-
appellant Union Public Service Commission filed an appeal before the High
Court. It was contended by the appellant before the High Court that there
were only four vacancies available for consideration by the Selection Committee
B and not six. Hence it was contended that the Selection Committee which met
on 16.9.1998 included only four officers in the select list for 1998 as the
available vacancies for Tamil Nadu at that time were only four.
'
8. As far as inclusion of Shri K.S. Krishnan for the post of IFS officer ~

for the year 1998 was concerned, even though the said officer had completed
c 54 years on 3.5.1997, his case was considered by the selection committee as
per the second proviso to Sub-Regulation (3) of Regulation 5 of the IFS
(Appointment by Promotion) Regulations, 1966.
.,
9. With regard to the inclusion of2 officers in the select list, who were
facing Vigilance Enquiry, the names of such officers were included in terms
D of the proviso to Sub-Regulation (4) of Regulation 5 oflndian Forest Service
(Appointment by Promotion) Regulations, 1966.

10. The High court, however, agreed with the view taken by the Tribunal
--..:
and dismissed the writ petition. Hence this appeal.
E l l. In our opinion both the High Court and the Tribunal overlooked the
fact that the selection of State Forest Services officers for promotion to the
IFS are governed by the IFS (Appointment by Promotion) Regulations, 1966,
which are statutory in nature. They did not also take into account the fact
that the IFS Promotion Regulations were amended vide notification dated
F 31.12.1997 effective from 1.1.1998 bringing about certain changes. There was
a transition period between April 1997 to December i.e. between the ceasing y ...
of the effect of the old Regulations and taking effect of the new Regulations
for which specific orders dated 27 .2.1998 and 14.9 .1998 were issued by the
Government of India to safeguard the interest of those officers who would
otherwise have been adversely affected because of the said transition.
G
1.2. We find that the appellant conducted the selections strictly in
accordance with the statutory regulations and orders issued by the Government ...
of India, and hence there was neither any infirn1ity nor arbitrariness involved
in the selection, nor was the procedure adopted by the Selection Authority
dubious and questionable as held by the High Court.
H
U.P.S.C. v. S. THIAGARAJAN [MARKANDEY KATJU, J.] 729
--\ 13. As regards the question whether there were six vacancies or four, A
the High Court and the Tribunal did not take into account the fact that the
IFS Promotion Regulations and IFS (Fixation of Cadre Strength) Regulations
were amended by the notification dated 31.12.1997 which came into effect
from 1.1.1998. The Government of India vide letter dated 27.2.1998 laid down
the follow up action to be taken in view of the amendment dated 31.12.1997,
the relevant part of which is as follows: B
"It has been decided that the increase in promotion posts sanctioned
under notification No. I I 033/15/95-AIS(IJ)-C, dated the 31st December,
1997, in respect of the Indian Forest Service Cadres are to be given
effect in a phased manner. The recruitment to the promotion posts C
when made in each cadre during the year may be limited to the
promotion posts as on 31.12.1997 plus one third of the net increase
in the promotion posts as on L 1.1998, ignoring the fractions, if any.
Similarly, the recruitment in 1999 will be enhanced by half of the
balance increase, ignoring the fractions, if any and the remaining
increase will be added to the recruitment in the year 2000. The D
immediate charge on the increase in the promotion posts in the
respective State Cadres will be the persons who stand included in the
waitlisted part of Select Lists prepared in 1997 and in force. The
waitlisted officers could accordingly be considered for promotion to
the IFS against the vacancies made available from I. LI 998 in the first E
instance."

14. The Select List prepared in 1997 was for the year 1996-97 and it was
in force till the meeting of the Selection Committee held on 16.9.1998. S/Sh.B .
.Venkataraman and M. Samuel Moses were the waitlisted officers in the said.
Select List. These two officers were appointed to the IFS by the Government F
of India vide notification dated 10.9.1998 in pursuance to the aforesaid letter
dated 27.2.1998. Thus two of the six vacancies indicated by the State
Government in their letter dated 6.7.1998 were utilized before the meeting of
. the Selection Committee on 16.9.1998.

15. The Tribunal, while reaching to the conclusion that the proposal to G
select six officers had been reduced to four in an arbitrary manner without
assigning any reason, placed reliance on the State Government's notes for the
Selection Committee indicating that there were six vacancies to be filled up.
The State Government's letter dated 2.9.1998 indicating that two of the said
six vacancies are to be filled up in terms of Government of India, Ministry of
H
730 SUPREME COURT REPORTS [2007) 2 S.C.R.

A Environment & Forests letter dated 27.2.1998 and only four vacancies would
remain vacant thereafter for the year 1998 was not at all taken into account·
by the Tribunal. This has been confinned by the Government of India in paras
5 to 8 of the reply filed by them in the writ petition filed before the High Court.
As per the amendment dated 31.12.1997 to the IFS (Appointment by Promotion)
Regulations, 1966, the size of the select list is equal to the number of vacancies
B available. In the instant case, the Selection Committee was infonned that there
were four vacancies in the promotion quota of Tamil Nadu cadre for the select
list of 1998. Therefore, the committee took into account four vacancies and
prepared a select list of four officers. 'I

C 16. As regards the inclusion of Sh. K.S. Krishnan in the select list of
1998, since the definition of the word 'year' underwent a change after the
amendment of the Regulations, there was a transition period between the
ceasing of the effect of the old Regulations and the coming into effect of the
amended "Regulations. Under the pre-amended Regulations, select lists were
to be prepared ·Jn a financial year basis whereas after the amendment, select
D lists were to be prepared on a calendar year basis. In view of this, after
preparation of the selection list of 1996-97, the next selection list would be
for the year 1998. As such, there would not be any select list prepared for
the period April, 1997 to December, 1997. In order to safeguard the interest
of those officers who would thus be adversely affected by the transition
E period from April, 1997 to December, 1997 during which no select list would
be prepared, the Government of India issued special instructions vidc letter
dated 14.9.1998.

17. The said letter of the Government of India dated 14.9.1998 was
issued by way of clarification regarding the applicability of Regulation 5(3)
F of the Promotion Regulations in the context of the amendments dated 31.12.1997
to the IAS/IPS/IFS Promotion Regulations. The relevant part of the said letter -r...,
is reproduced here:

"It is observed that in tenns of the amended Regulations, l st January,
1998 is the crucial date by which the eligibility criteria for consideration
G of the State Service Officers for consideration by the Selection
Committee are required to be satisfied. Jn tenns of Regulation 5(3), as
amended, a State Civil Service Officer who has crossed 54 years
between Ist April, 1997 and 31st December, 1997 and hence above 54
years as on the !st January of the 1998 is not eligible to be considered .
by the 1998 selection committee, though he would have been eligible
H
U.P.S.C. v. S. THIAGARAJAN [MARKANDEY KATJU, J.] 731

to be considered by the 1997-98 selection committee scheduled to A
meet by March, 1998, had the Regulations not been amended.

The matter has been carefully considered. It is observed that in terms
of the second proviso to Regulation 5(3) of the IAS (Appointment by
Promotion) Regulations, 1955, those officers who had crossed 54
years of age on the crucial date and who were not considered in the B
year immediately preceding the year in which the meeting of the
Committee is held are entitled to be considered by the committee in
addition to the normal zone of consideration placed before the
committee. The 1997-98 select list in terms of the Promotion Regulations.
existed as a legal fiction upto the 31st D~cember, 1997 and it ceased C
to exist with the coming into force of the IAS (Appointment by
Promotion) Second Amendment Regulations, 1997, w.e.f. 1.1.1998. In
all the cases, where the Selection Committee for 1997-98 did not meet
during the period from 1.4.1997 to 31.12.1997, it has to be construed
that the Selection Committee for immediately preceding year did not
meet and those officers crossing the age of 54 years during this year D
allowed the benefit of consideration by the 1998 Selection Committee
as and when it meets in terms of the second proviso to sub-Regulation
3 of Regulation 5 of the amended Regulations."
""
Shri Krishnan who was confirmed on 19.1.1998 with retrospective effect
from 1.6.1996 was entitled to be considered by the Selection Committee in E
addition to the normal zone of consideration in terms of the second proviso
to Regulation 5(3) of the IFS (Appointment by Promotion) Regulations, 1966
as clarified by the Government oflndia, Department of Personnel & Training
vide their letter dated 14.9.1998. This letter was issued by the Government of
India especially in the context of the amendment dated 31.12.1997 to the !AS/ F
!PS/IFS (Appointment by Promotion) Regulations in order to safeguard the
interests of those officers who would be adversely affected by the transition
period from April, 1997 to December, 1997 for which period no select list was
to be prepared.

18. As regards the inclusion of tainted officers in the select list of 1998, G
in our opinion the High Court and Tribunal did not notice that provisional
inclusion of these officers in the select list was done as per the express
provision of the Promotion Regulations i.e. Regulation 5(4) which is as follows:

"The list shall be prepared by including the required number of names
first from amongst the officers finally classified as 'outstanding' then H
732 SUPREME COURT REPORTS (2007) 2 S. C.R.

A 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 Forest Service.

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

C Explanation I: The proceedings shall be treated as pending only if
. a charge-sheet has actually been issued to the officer or filed in a
court as the case may be.

Explanation II: The adverse thing which came to the notice of the
Sta;e Government rendering his unsuitable for appointment to the
D service shall be treated as having come to the notice of the State only
if the details of the same have been communicated to the Central
Government is satisfied that the details furnished by the State
Government have a bearing on the suitability of the officers and
investigation thereof is essential." -

E 19. Thus, if an officer against whom disciplinary proceedings :ire pending
is considered by the Selection Committee, his name is included in the select
list provisionally, if he is otherwise found suitable for inclusion. He cannot
be appointed to the IFS till his inclusion is declared as unconditional and final
by the UPSC. In the instant case Shri Shenabagamurthy and T. Srinivasan
p were included provisionally in the select list of I998 subject to their clearance
in the pending disciplinary cases as such inclusion was in consonance with
the Promotion Regulations. Further, the courts below did not appreciate that
under the Promotion Regulations, an officer who is included in the zone of
consideration has to be considered by the Selection Committee even if
disciplinary proceedings are pending against him. The name of such an officer
G is included provisionally in the select Iist, if he is otherwise found suitable
· for inclusion. The courts below therefore erred in hold that the names of such
officers should not be considered at all.

20. Thus the findings of the High Court and Tribunal are without
H noticing the expression provisions of the statutory Regulations, in accordance
U.P.S.C. v. S. THIAGARAJAN [MARKANDEY KA TJU, J.) 733
with which the Selection Committee prepared the select list. Hence in our A
opinion there orders are vitiated.

21. The Selection Committee acted strictly in accordance with the
provisions of the Promotion Regulations, which are statutory in nature. The
courts below erred in holding that merely because the respondent no. I was
qualified and there was no case pending against him, his name should have B
been included in the select list. The fact that he was eligible and qualified only
entitles him to be considered for selection under the Promotion Regulations,
but does not give him any preference over others who have earned better
grading than him. Respondent no. I was duly considered by the Selection
Committee at SI.No. I I and was addressed as 'Good'. However, he was not C
included in the select list as officers having better grading were available and
also due to the statutory limit on the size of the select list.

22. Apart from the above we are also of the opinion that orders of the
High Court and the Tribunal are liable to be set aside on the ground that the
necessary parties have not been impleaded. Hence the Original Application D
before the Tribunal was liable to be dismissed on this ground alone vide
Prabodh Verma and Ors., etc., etc. v. State of Uttar Pradesh and Ors. etc.,
,r AIR (1985) SC 167.

23. For the reasons given above, this appeal is allowed and the impugned
order of the High Court as well as of the Tribunal are set aside. E
24. There shall be no order as to costs.

S.K.S. Appeal allowed.