CASE NO.: Appeal (civil) 2082 of 2003 PETITIONER: SATYA NARAIN SHUKLA RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 11/05/2006 BENCH: B.N. SRIKRISHNA & LOKESHWAR SINGH PANTA JUDGMENT:
JUDGMENT
SRIKRISHNA, J. :
These two appeals impugned the same judgment of the Division Bench of the
Allahabad High Court and are in the nature of cross appeals. Hence, they
are being disposed of by this common judgment.
These appeals arise out of an order of the Central Administrative Tribunal,
Lucknow, (hereinafter referred to as `the Tribunal’), which was moved by
Satya Narain Shukla, appellant in Civil Appeal No. 2082/2003 (hereinafter
referred to as `the appellant’). The Tribunal declined any relief to the
appellant and dismissed his original application. The appellant carried a
writ petition to the High Court and the Division Bench granted him partial
relief. There is an appeal by the appellant in respect of the relief denied
to him and there is an appeal by the Union of India in respect of that part
of the relief granted to the appellant by the High Court.
The Facts
The appellant was selected as an officer of the Indian Administrative
Service (IAS) and was allotted UP cadre in the year 1967. He held different
postings and was promoted to the Super Time Scale in the year 1982. In
September 1996, the appellant was considered for empanelment as additional
Secretary to the Government of India, but was not empanelled. Several
representations were made by him to the authorities against his exclusion
from the panel of Additional Secretaries to the Government of India on the
ground that his case had been considered on the basis of wrong appreciation
of the character rolls and ACRs, which had not been recorded in accordance
with the All India Service (Confidential Rolls) Rules, 1970. In December
1977 the appellant’s case was reviewed along with those of several other
officers of the 1967 batch of IAS officer. His representations were not
placed before the Special Committee of Secretaries (SCoS) and the
Appointments Committee of the Cabinet (ACC). He was not, however,
empanelled.
The appellant filed Original Application (OA) NO. 38/1998 before the
Central Administrative Tribunal, Lucknow, on 28.1.1998. He alleged that the
failure of the authorities to include him in the panel for Additional
Secretaries to the Government of India was illegal on several grounds
including mala fides on the part of some of the reporting officers. He also
sought a direction from the Tribunal to the authorities for streamlining
the system of recording annual confidential reports (ACRs) and to make the
procedure for empanelment objective, fair and transparent. The tribunal
made an interim order on 24.2.1998 directing that further empanelment and
postings of 1967 and 1968 batch IAS officers junior to the appellant shall
be subject to the decision of the OA. The appellant also submitted a
memorial to the President for review of his case for empanelment as
Additional Secretary to the Government of India but got no relief.
On 15.09.1998, the appellant sought an amendment for amending the relief
clause in his OA and prayed for a direction to reconsider his case for
empanellment as Additional Secretary to the Government of India and also to
consider him for empanellment as Secretary to the Government of India.
These amendments were allowed on 23.3.1999. On 1.5.1999, he sent another
representation to the Cabinet Secretary to decide his earlier memorial
addressed to the President and to give him justice by empanellment as
Secretary to the Government of India.
On 12.5.1999, the Tribunal made a further interim order directed to
authorities to complete the appellant’s character roll (CR) and to take a
decision on his representations dated 31.8.1998 and 6.3.1999 before
considering him for empanellment to the post of Secretary to the Government
of India. On 29.7.1999, the Tribunal made a further direction that the
appellant’s representation dated 1.5.1999 should be decided before
finalising the empanellment for the post of Secretary to the Government of
India. On 31.8.1999, the Government of India ifnormed the appellant that
his CR had been completed and the ACR for 1993-94, about which he had some
grievance, had been cancelled. The Government of India, however, declined
to deal with and take action on his representations on the ground that the
matter was sub judice before the Tribunal.
In September 1999, the SCoS met for empanellment for the post of Secretary
to the Government of India and after considering his record the appellant
was not included in the panel.
On 11.1.2000, the appellant made a statutory memorial to the President
alleging that he had been wrongly excluded from the panel for the post of
Secretary to the Government of India. However, he got no relief therefrom.
Sometime in February 2000, the ACC met and accorded approval to the
recommendations made by the SCoS for the panel of 1967 batch for the post
of secretary to the Government of India. Again on 7.3.2000, the appellant
sent another memorial to the President against his exclusion from the panel
of the post of Secretary to the Government of India while two other
officers junior to him, and allegedly of lesser merit, had been empanelled.
On 28.4.2000, the Tribunal Dismissed the OA holding that the post of
Additional Secretary to the Government of India or Secretary to the
Government of India was not a promotional post for an all-India Services’
officer of State cadre, and therefore, most of the contentions urged, which
proceeded on the footing that the empanellment to the post of Additional
Secretary to the Government of India or the Secretary to the Government of
India was a promotional post, were irrelevant. The Tribunal also held that
once the appellant was considered for empanellment for the post of
Secretary to the Government of India, as he had become eligible for such
consideration, there was no point in directing the respondent authorities
to consider his case for empanellment for the post of Additional Secretary
to the government of India. The Tribunal took the view that the posts of
Additional Secretary and Secretary to the Government of India were very
high and responsible posts for which only officers with outstanding entries
in ACRs and excellent recommendations should be considered. It was also
held that the ACRs were not the only consideration for empanellment. The
Tribunal was satisfied that the SCoS had taken into consideration the
change made in the ACR consequent to the direction of the Tribunal and it
had considered the empanellment of the appellant for the post of Secretary
to the Government of India after the representation dated 1.5.1999 had been
decided. The challenge made by the appellant to the constitution and
validity of the Central Staffing Scheme was declined by the Tribunal. The
Tribunal also dismissed the allegations of mala fides and arbitrariness in
not considering the appellant for empanelemnt and dismissed his petition.
The High Court party allowed the petition and the appellant. It held that
all relevant papers including the representations made by the appellant,
appreciation letters written in his favour and the memorials made by him
against downgraded entries and outstanding entries should have been placed
by the authorities before the SCoS which should have applied its free and
independent mind to arrive at the best possible conclusion for
empanellment. The High Court declined to entertain and enter into the
contention that the Central Staffing Scheme was violative of the provisions
of the Constitution of India. But, taking the view that empanellment to the
post of the level of Secretary to the Government of India was a promotional
post, directed consideration of the appellant’s case afresh for
empanellment as Additional Secretary/Secretary to the Government of India
by taking into consideration all relevant records as such his confidential
report dossiers, letters of appreciation including memories etc.
We have heard the appellant in person as well as counsel for the Union of
India. Despite the somewhat lengthy written arguments filed by the
appellant, the points which need consideration are only the following :
I. Whether the Central Staffing Scheme is unconstitutional;
II. Whether para 14 of the Central Staffing Scheme is ultra virus
Articles 309 and 312 of the Constitution of India;
III. Whether the post of Additional Secretary to the Government of India
and above are promotional posts for IAS officers;
IV. Whether the appellant’s non-empanellment to the above post is
arbitrary and vitiated on account of mala fides, arbitrariness or violative
of applicable rules.
I. Constitutional validity of the Central Staffing Scheme
The appellant strongly urged that his case falls under the procedure
prescribed in the Central Staffing Scheme, which is wholly unconstitutional
and illegal. According to the appellant, the service conditions of IAS
officers are governed by the provisions of the All India Services Act, 1951
(AIS Act) and the Rules framed thereunder. The appellant contended that it
was not permissible for the Government of India to prescribe any procedure
therefor other than by way of rules framed strictly in accordance with the
AIS Act. In his submission, no executive order made in respect of a matter
under Article 309 or 312 could be inconsistent with the statutory rules
framed under the AIS Act. The Central Staffing Scheme was neither the
provisions of any legislative enactment nor a supporting legislation framed
under the AIS Act, and, therefore, to the extent of inconsistency with the
said Act or the Rules framed thereunder, it was illegal. For this
contention, the appellant relied on the judgment of this Court in G.K. Rao
and Others v. S. Bhattacharya1 and A.B. Krishna v. State of Karnataka2.
Article 312 of the Constitution provides that the Parliament may by law
provide for the creation of one or more all-India Service common to the
Union and the State, and, subject to the other provisions of that Chapter,
regulate the recruitment and the conditions of service of persons
appointed, to any such service. Further, the IAS and the IPS are deemed to
be services created by the Parliament in order to enable the Parliament to
deal with the service conditions of the members of the said services.
Section 3 of the AIS Act provides as under:
“Section 3. Regulation of recruitment and conditions of service –
(1) the Central Government may, after consultation with the Governments
of the States concerned including the State of Jammu and Kashmir and by
notification in the Official Gazette make rules for the regulation of
recruitment, and the condition of service of persons appointed to an All-
India Service.”
On 17.10.1957, the Central Staffing Scheme was formulated by a resolution
of the Government of India and was intended to make “adequate arrangements
for staffing senior administrative posts of and above the rank of Depute
Secretary to the Government of India.” This staffing scheme has been
amended from time to time by resolutions of subsequent dates and the last
one relevant to us, which was challenged by the appellant, was dated
5.1.1996. The contention of the appellant is that when the Central Staffing
Scheme was formulated on 17.10.1957 it was clearly mentioned therein that
it had been done “in consultation with the State Government and other
authorities concerned”. The appellant contended that section 3 of the AIS
Act also requires consultation with the States for making of rules. The
impugned Central Staffing Scheme contained in the OM dated 5.1.1996 does
not, in terms, say that it has been issued after consultation with the
State Governments. Hence, the contention is that it is ultra virus Section
3 of the AIS Act.
In our view, the contention raised by the appellant has no merit. Section 3
is an enabling power of the Central Government to make Rules for the
regulation of recruitment and the conditions of service for persons
appointed to the all-India services. This enabling power is hedged in with
the requirement that before doing so there has to be consultation with the
State Governments concerned and every rule made in such fashion is to be
placed before both the Houses of the Parliament as required by sub-section
(2) thereof. It is not possible to accept the contention of the appellant
that the Central Staffing Scheme is either a rule or a Regulation within
the meaning of Section 3 of the AIS Act, nor is it possible to accept that
there is no other power available to the executive to deal with the
recruitment and conditions of service otherwise than by a validly made rule
under Section 3 of the AIS Act.
It is not well established that the Central Government’s executive power
extends to the same subjects and to the same extent as that of the
Parliament, as long as it does not infringe any provision of any law made
by the Parliament or of the Constitution. In Rai Sahib Ram Jawaya Kapur and
Others v. The State of Punjab3, this Court has observed (vide para 12):
“It may not be possible to frame an exhaustive definition of what executive
function means and implies. Ordinarily the executive power connotes residue
of governmental functions that remain after legislative and judicial
function are taken away.
The Indian Constitution has not indeed recognised the doctrine of
separation of powers in its absolute rigidity but the functions of the
different parts or branches of the Government have been sufficiently
differentiated and consequently it can very well be said that our
Constitution does not contemplate assumption, by one organs or part of the
State, to functions that essentially belong to another. The executive
indeed can exercise the powers of departmental or subordinate legislation
when such powers are delegated to it by the legislature.
It can also, when so empowered, exercise judicial functions in a limited
way. The executive Government, however, can never go against the provisions
of the Constitution or of any law. This is clear from the provisions of
Article 154 of the Constitution but, as we have already stated, it does not
follow from this that in order to enable the executive to function there
must be a law already in existence and that the powers of the executive are
limited merely to the carrying out of these laws.”
Hence, we are unable to accept the contention that the Central Staffing
Scheme is unconstitutional.
II. Constitutional validity of Para 14of the Central Staffing
The selection of Additional Secretary/Secretary to the Government of India
has been carried out in accordance with para 14 of the Central Staffing
Scheme. Para 14 reads as under :
“Additional Secretary/Special Secretary/Secretary
14. Selection for inclusion on the panel of officers adjudged suitable for
the appointment to the posts of Additional Secretary or Special
Secretary/Secretary to the Government of India and posts equivalent
thereto, will be approved by the ACC on the basis of proposals submitted by
the Cabinet Secretary. In this task, the Cabinet Secretary may be assisted
by a Special Committee of Secretaries for drawing up proposals for the
consideration of ACC. As far as possible panels of suitable officers will
be drawn up on an annual basis considering all officers of a particular
year of allotment from one service together as a group. Inclusion in such
panels will be through the process of strict selection and evaluation of
such qualities as merit, competence, leadership and a flair for
participating in the policy-making process. Posts at these levels at the
Centre filled according to the Central Staffing Scheme are not to be
considered as posts for the betterment of promotion prospects of any
service. The need of the Central Government would be paramount
consideration. While due regard would be given to seniority, filling up of
any specific post would be based on merit, competence and the specific
suitability of the officer for a particular vacancy in the Central
Government.”
Para 14 of the Central Staffing Scheme makes it clear that empanelment will
be through the process of strict selection and evaluation of “merit,
competence, leadership and a flair for participating in the policy-making
process”. It is also made clear therein that posts at these levels in the
Centre filled according to the Central Staffing Scheme are not to be
considered as posts for the betterment of promotion prospects of any
service and that the need of the Central Government would be the paramount
consideration. While due regard would be given to seniority, filling of any
specific post would be based on merit, competence and specific suitability
of the officer for a particular vacancy in the Central Government.
The appellant contended that this provision of the Central staffing Scheme
is ultra virus Articles 309 and 312 of the Constitution. Amplifying this it
is urged by the appellant that several Rules have been framed by the
Central Government in exercise of its statutory powers under AIS Act, 1951,
i.e. Indian Administrative Service (Cadre) Rules, 1951; Indian
Administrative Service (Fixation of Cadre Strength) Regulations, 1955;
Indian Administrative Service (Pay) Rules, 1954; Indian Administrative
Service (Regulation of Seniority) Rules, 1987; Indian Administrative
Service (Probation) Rules, 1954; and that these Rules occupy the whole
field of executive discretion, and, therefore, by the doctrine of occupied
field there is no scope left for exercise of executive action outside the
purview of these Rules. It is difficult to accept this contention. Each one
of these Rules is intended to take care of a specific facet of the IAS. No
set of these Rules is exhaustive by itself of all the service conditions
applicable to the IAS. It is, therefore incorrect to contended that the
field of possible executive action is completely occupied by the statute or
the statutory rules framed thereunder, deriving force from Article 309 read
with Article 312 of the Constitution of India. We have not been shown any
provisions in these Rules which deal specifically with the subject of the
procedure for selection of officers from the said cadre for the post of
Additional Secretary/Secretary to the Government of India. This is a
subject in respect of which the field does not appear to be occupied.
Consequently, it was very much open to the executive of resort to executive
instructions by way of an office memo for dealing with this subject. The
contention, therefore, must fail.
The further contention that para 14 of the Central Staffing Scheme leaves
room for arbitrary executive action for want of clear cut guidelines has no
merit. The guidelines indicated therein are sufficiently clear enough to
steer clear of the charge of possible arbitrary use.
III. Whether the post of Additional secretary to the Government of India
and above are promotional posts for IAS Officers;
It is next contended by the appellant that the post of additional
Secretary/Secretary to the Government of India is a promotional post of IAS
officers. Strong reliance is placed on the judgment of this Court Debesh
Chandra Das v. Union of India4. This was a case of an IAS officer of the
Assam cadre, who was appointed as Special Secretary to the Government of
India, but later on reverted to Assam services, which resulted in reduction
of his pay, and the other option given to him was to continue in Central
Government service in a lower pay scale. This was considered to be a lower
ranked post because as a Special Secretary at the Central Government
services he was enjoying higher pay, emoluments and status. Being reverted
to the State cadre, according to this Court, amounted to reversion to a
lower post accompanied by a stigma, in the peculiar facts of the case,
particularly when the appointment of the appellant as Special Secretary was
for a tenure of 5 years and was terminated before expiry thereof. In these
circumstances, this Court took the view that reverting the appellant-
officer to the State cadre amounted to reversion with stigma, which
required action in accordance with Article 311(2) of the Constitution, and,
that not having been done, the action of reversion was held to be illegal.
We notice that the Central Staffing Scheme was not even referred to or
considered by the judgment. We are, therefore, unable to accept the
contention that this judgment supports the proposition canvassed.
Reliance was placed on the judgment of this Court in State of Mysore v.
Krishna Murthy5. This was case where members of the same service belonging
to the same cadre were treated differently for promotional purposes merely
on the ground that they came from different streams. Hence, his judgment is
of no relevance to us.
Para 14 of the Central Staffing Scheme read in the light of the judgment of
this Court in Union of India v. Samar Singh6 also suggests that appointment
to the post of Additional Secretary/Secretary to the Government of India is
not a promotion for an IAS officer.
We are, therefore, unable to accept that empanellment of a State cadre
officer for the post of Additional Secretary/Secretary to the Government of
India is a promotion as contended. If the argument of the appellant is
accepted, then an officer of the State cadre who is appointed to the
Government of India can never be sent back to his State cadre, for the
benefit of promotion once given cannot be withdrawn unless for
extraordinary reasons. For all these reasons, we are unable to agree with
the appellant’s contention that the post of Additional Secretary/Secretary
to the Government of India is a promotional post for an IAS officer.
IV. Whether the appellant’s non-empanellment is vitiated
The last contention urged by the appellant is that his non-empanellment to
the post of Additional Secretary/Secretary to the Government of India was
arbitrary, vitiated by mala fides and violative of applicable rules. The
first argument in respect of his contention is that no reasons have been
given for his non-empanellment or for empanellment of officers junior to
him. Union of India v. Samar Singh (supra) was a case of empanellment of an
IAS officer under para 14 of the Central Staffing Scheme. In that case the
respondent contended that the committee constituted under the provisions of
the Central Staffing Scheme had wrongly and unjustifiably not chosen the
respondent for empanellment as Secretary to the Government of India. After
referring to para 14 of the Central Staffing Scheme and the observations as
to the limited nature of review for selection for appointment indicated in
Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan7; Jai Narain Misra (Dr) v.
State of Bihar8 and Major General I.P.S. Dewan v. Union of India9, this
Court observed in para 11 as under:
“This would show that the Committee, keeping in view the record and
experience including the conceptual and leadership abilities, achievements
and potential for general management positions, had recommended 19 IAS
officers for holding the post of Secretaries and 7 IAS officers for holding
non-secretarial post. Merely because the minutes of the Committee do not
contain the reason for non-selection of the respondent does not mean that
there has been no proper consideration of the merits and suitability of the
respondent and as a result the selection is vitiated. From the minutes of
the Special Committee it is evident that in the matter of empanellment of
oficers the Special Committee has taken into account the criteria that are
laid down for holding such selection in para 14 of the Central Staffing
Scheme and, therefore, it cannot be said that the said selection is
vitiated on account of non-inclusion of the name of the respondent in the
panel.”
Another contention urged by the appellant is that the appellant has an
outstanding service record, and therefore, his non-empanellment is
arbitrary. This Court has reiterated in Samar Singh (supra) that merely
because an officer has an outstanding service record there is no automatic
empanellment. After referring to para 14 of the Central Staffing Scheme,
this Court observed (vide para 12) as follows :
“Apart from the record there are other matters that have to be considered,
namely, merit, competence, leadership and flair for participating in the
policy-making process and the need of the Central Government which is the
paramount consideration. We are unable to hold that since the performance
of the respondent after his promotion as Additional Secretary had been
found to be excellent and outstanding, the non-inclusion of his name from
the panel by the Special Committee must lead to the inference that there
was no proper consideration of the merit and suitability of the respondent
for empanellment by the Special Committee.”
There is no merit in the contention that the non-empanellment of the
appellant is arbitrary, as urged.
Finally, the appellant also urged that his non-empanellment was the result
of mala fides. In support of this contention he has contended that his ACRs
were not written fairly and in fact his excellent record had been spoiled
by his superior officer on account of mala fides against him. When we
repeatedly queried him as to what were the mala fides alleged before the
Tribunal and the High Court, he contended that his ACRs had been left
incomplete and his empanellment as Additional Secretary/Secretary to the
Government of India was considered on the basis of incomplete ACRs. The
appellant had made an application to the Tribunal that his empanellment
should be considered only after the authorities are directed to complete
his CR dossiers. As a matter of fact, the prayer made by the appellant was
granted by the Tribunal and the authorities concerned were directed to
complete the CR dossiers of the appellant and only thereafter to take a
decision on empanellment. Thus, it is clear that the decision for
empanellment for the post of Secretary was not based on incomplete ACRs.
The appellant then contended that some officer were biased against him and
their assessment was vitiated by mala fides. When we asked him as to who
the said officers were, he named a former Cabinet Secretary, T.S.R.
Subramanian, and certain other officers who had written his CR dossiers.
The reasons for mala fides alleged by him are that he had seriously
disagreed with some of the policy decision taken by some of these officers,
and therefore, they bore an animus against him. He also contended that the
very officers who had written his downgraded entries, later on were
involved in some scandals. In our view, neither of these grounds hold any
water. From the records we do not see any strong motive for any of the
officers to bear animus against the appellant to ensure that he was not
empanelled. Dissent is the essence of democracy and merely because one
disagrees with another, one cannot jump to the conclusion that the other
harbors a grudge against the former.
The appellant also argued that the remarks made in the ACR were not
communicated to him. It was also urged by the appellant that this Court
should direct the authorities to streamline the whole procedure so that
even remarks like `good’ or `very good’ made in ACRs should be made
compulsorily communicable to the officers concerned so that an officer may
not lose his chance of empanellment at a subsequent point of his service.
In our view, it is not our function to issue such directions. It is for the
Government to consider how to streamline the procedure for selection. We
can only examine if the procedure for selection as adopted by the
Government is unconstitutional or otherwise illegal or vitiated by
arbitrariness and mala fides.
After, careful application of mind to all the contentions urged before us,
we are not satisfied that there are any vitiating factors affecting the
decision of the Central Government in not empanelling the appellant for the
post of Additional Secretary/Secretary to the Government of India.
The appellant in his enthusiasm cited a large number of other judgments
both in his oral and written submissions. Having carefully perused them, we
are of the view that they are hardly of any assistance to us a resolution
of the dispute before us in the present appeals.
In the result, we hold as under :
1. The provisions of the Central Staffing Scheme including para 14
thereto are not unconstitutional;
2. In view of the express provisions of para 14 of the Central
Staffing Scheme, read in the light of the judgment of his Court in Samar
Singh (supra), the appointment of State cadre IAS officers for the post of
Additional Secretary/Secretary to the Government of India does not amount
to promotion.
3. The non-empanellment of the appellant for the post of Additional
Secretary/Secretary to the Government of India was neither arbitrary nor
contrary to the Rules nor vitiated by mala fides as alleged.
In the result, we allow Civil Appeal No. 2081 of 2003 and set aside that
part of the impugned judgment of the High Court holding that the
empanellment to the post of Additional Secretary/Secretary to the
Government of India amounts to promotion and directing consideration of the
appellant’s case afresh for empanellment. The rest of the judgment is
maintained. Civil Appeal No. 2082/2003 is hereby dismissed. There shall be
no order as to costs.
