N.P. Nawani, Member (A)
1. In this application filed under Section 19 of the Administrative Tribunals Act, the applicant seeks following reliefs:
"(i) downgradation of the remarks in the A.P.A.Rs of the applicant for the year 1996-97 (inclusive of both periods) may be declared as illegal and directions may be issued to the respondents to completely ignore the downgradation of such remarks and to treat the applicant as "Outstanding" or "Very Good" in the A.P.A.Rs for the year 1996-97; (ii) the official respondents may be directed to give future promotion to the applicant considering him in the category of "Outstanding" or "Very Good". (iii) the action of the respondent No. 4 in interfering in the A.P.A.Rs of the applicant may be declared illegal. (iv) the respondents may be directed to reconvene the meeting of the Screening Committee for appointment to Indian Forest Service and while reconvening such Screening Committee, the vacancies of each year may kindly be directed to be redetermined separately and after redetermination of the year wise vacancies a further direction may be issued to convene meeting of the Screening Committee for each year separately."
2. The applicant was earlier a member of the Rajasthan Subordinate Forest Service, then promoted to Rajasthan Forest Service (for short RFS) and became eligible for promotion to the Indian Forest Service (for short IFS) in the year 1988 under Regulation 5 of the Indian Forest Service (Appointment by Promotion) Regulations, 1966 (for short Promotion Regulations). As detailed in Scheduled ‘A’ an eligibility list of 51 officers was prepared wherein the applicant was at Sl. No. 23. The selection was to be made for 11 vacancies, as per details given in para 4 (iv) of the O.A. for the years 1995-98. It is stated by the applicant that as per his.knowledge, the Selection Committee considered service record for 5 years, 1992-93 to 1996-97 and during this period, his work and performance was excellent and thus he was rated ‘ Very Good’ in the APRs for 1992-93, 1993-94, 1994 -95 and 1995-96. However, as per his knowledge in the APR for 1996-97, written for two different periods, his ‘Very Good’ grading was maintained upto the level of Accepting Authority but respondent No. 4, Secretary, Forests and Environment downgraded the remarks to Average. The Selection Committee recommended names of 11 candidates for promotion to IFS but in the Notification (Ann. A1) issued under Regulation 9, only 10 candidates were appointed to IFS. It is the connection of the applicant that in the said Notification, while those between Srls. 1 to 5 are senior to him, promotion has been given to those at Srls. 6 to 10 who are junior to him. The basic grievance of the applicant appears to be downgradation of his APR for the year 1996-97 which was the cause of his having not been promoted and neither any counselling nor any communication was done before such downgradation. No reasons have also been given by respondent No. 4 while changing the remarks of the Reporting, Reviewing and Accepting authorities. The applicant made a representation (Ann. 2) but it was of no avail. On being aggrieved by his non-promotion in IFS and his supersession, the applicant has filed this O.A., seeking reliefs already mentioned in the preceding paragraph.
3. The applicant has challenged the downgradation in his APRs for the year 1996 -97 on a number of grounds. However, we have to make it clear at this stage itself that the matter relating to the Annual Performance Reports (for short APRs) of a member of the Rajasthan Forest Service, which the applicant was at the relevant time and continues to be such as of now, does not fall within the jurisdiction of this Tribunal. It is a matter within the purview of the State Government to whom the applicant has made a representation on 25.10.1998 (Ann. A2). If the applicant desires to agitate the matter regarding the said APR before a judicial forum, he has to approach the appropriate forum, which is the Rajasthan Civil Services Appellate Tribunal. If this be so, we are not required to examine the ruling cited by the learned Counsel for the applicant, U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors., 1996 SCC (L&S) 519. In view of this position, reliefs sought at (i) and (iii) of para 8 of the O.A. are hereby rejected by us as being not within our jurisdiction. We would, however, adjudicate on the question of assessment made by the Selection Committee of the UPSC which considered his case for promotion from RFS to IFS under the Promotion Regulations and did not perhaps include his name in the Select List, as a consequence of which, his name did not figure in the Notification dated 12.10.1998 (Ann. A1), by which ten officers of the RFS were promoted to IFS. Of Course, we also examine whether any discrimination was caused to the applicant because of the alleged downgradation of the ‘Very Good’ grading given by the Reporting, Reviewing and Accepting Authorities in the APRs of 1996-97 and for this purpose, at the request of the applicant, we will also examine the said APRs of the applicant.
4. The applicant has also alleged clubbing of the vacancies for the years 1995-96, 1996-97 and 1997-98, which is not permissible under the Promotion Regulations. In this connection, the applicant has contended that the issue is no ionger res-integra because the Apex Court in the case of Syed Khalid Rizvi and Ors. v. Union of India and Ors., 1993 Supp. (3) SCC 575 and Union of India and Ors. v. Vipinchandra Hiralal Shah, 1996(6) SCC 721 = 1997(1) SLJ 69 (SC), has held that “The list of selected officers for each year of vacancies should be prepared separately and it is a mandatory requirement.” Relevant provisions of the Promotion Regulations have been reproduced by the applicant but these appear to be unamended regulations as these existed prior to 1.1.1998.
5. Replies to the O.A. have been filed by the respondent No. 2 as also a combined reply by respondent Nos. 3 and 4. A rejoinder to the reply filed by respondent No. 2 has also been filed by the applicant which has been taken on record. Respondent No. 1, the Union of India, has not filed any reply but their Counsel was present during the arguments.
6. The reply of the respondent Nos. 2 and 3 makes a preliminary objection about lack of jurisdiction on the part of the Tribunal as far as the issues raised about the APRs of the year 1996-97. We have already disposed of this matter in para 3 of this order. It has also been contended by these respondents that 11 vacancies have been determined for preparing the Select List in accordance with the Regulation 5(1) of the Promotion Regulations as amended, according to which, the substantive vacancies as on the first day of January of the year in which the meeting of Selection Committee is held are taken into consideration. The said meeting was held in 1998 (on 25.7.1998) and accordingly vacancies which existed on 1.1.1998 had been determined, which come to 11. Further, since the Regulation 5(1) speaks of vacancies as on the first day of January of the year in which meeting of the Committee is held, it clearly postulates that all the vacancies as on the first day of January will be taken into consideration without splitting the said vacancies year-wise and, therefore, any question of clubbing or not clubbing of vacancies does not arise. It has also been contended that Regulation 5(1) uses the expression ‘ordinarily’ which shows that the meeting of the Committee every year is not mandatory. As regards the issue raised by the applicant with regard to discrimination in assessment of his service record by the Selection Committee, it has been contended that as per provisions of the Regulation 5(4) of the Promotion Regulations, the Selection Committee is required to classify the eligible officers on an overall relative assessment of their service records and it is the overall service record that comes into the consideration, not merely the gradings given by the reviewing officers and accepting officers. In view of this, the alleged downgrading does not come in the way of the applicant from being assessed by the Selection Committee in a proper and objective manner.
7. Respondent No. 2, the UPSC, has also filed a reply. We do not propose to repeat what is common between the reply filed on behalf of respondent Nos. 3 and 4 and that filed by respondent No. 2. With regard to the contention of the applicant that the APRs of the officer whose names are included in the Notification dated 12.10.1998 are no better than the applicant and despite this the applicant has been superceded by his juniors and also that APRs of officers selected for appointment to IFS have been considered as recorded by the Reporting Officer, reviewed by the Reviewing Officer and accepted to by the Accepting Officer whereas in his case, ignoring the APRs as recorded, remarks given by respondent No. 4 have been taken into consideration resulting in discrimination, the UPSC has submitted as recorded hereinafter:-
“that the Selection Committee as per practice followed in UPSC examine the service records of each of the eligible officers, with special reference to the performance of officers during the last 5 years (preceding the year in which the Selection Committee meets), deliberating on the quality of the officer as indicated in the various columns recorded by the reporting/reviewing officer/ accepting authority in the ACRs for different years and then after a detailed mutual deliberation and equitous discussion finally arrives at a clarification assigned to each officer. While doing so, the Selection Committee also reviews and determines the overall grading recorded in the ACRs to ensure that the overall grading in the ACRs is not inconsistent with the grading/ remarks under various parameters or attributes. The grading given by reporting/reviewing officers in ACRs reflects the merit of the officer reported upon in isolation whereas the classification made by the Selection Committee is on the basis of logical and deep examination of service records of all the eligible officers in the zone. The Selection Committee have assessed all the officers by applying uniforms standard/yardstick in a just, fair and equitous manner. As already submitted in para 4.3, the Selection Committee keeps in view orders awarding penalties or any adverse remarks communicated to the officer which even after due consideration of his representation have not been completely expunged”.
It has further been stated by the UPSC that the applicant is trying to substitute his own judgment to that of a duly constituted Selection Committee chaired by the Chairman UPSC or a Member of the UPSC, Chief Secretary Rajasthan, Secretary to the State Government dealing with the Department of Forest and a nominee of the Central Government not below the rank of Joint Secretary to the Govt. of India. Thus the Committee is composed of very high ranking responsible officers and the allegations made by the applicant are without any substance and based on mere presumption in the absence of applicant’s access to the concerned confidential documents of ACRs and records of eligible officers uniformly to all officers in the zone of consideration and the applicant was in no way discriminated against. As regards the question of clubbing of vacancies for the years 1995-96, 1996-97 and 1997-98, the reply of UPSC has further expanded the contentions made in the reply of the respondent State Government. It has been submitted that on reading the Promotion Regulations in totality, it will transpire that there is no provision therein for preparation of yearwise Select Lists when meeting of the Selection Committee is not held during the last one or more years. It has also stressed on the use of the word ‘ordinarily’ in the Regulations and contended that if the intention of the framers of the Regulations had been that it is mandatory to convene the meeting every year, then such word would not have been used. It has further been contended that provision contained in Regulation 5(3) will create practical difficulty with respect to cut off date and 2nd proviso to Regulation 5(3) would indicate that the framers of the Promotion Regulations had contemplated that there may be some circumstances where meeting of the Selection Committee may not be held annually. It has also been contended that Regulation 5(1) as amended on 31.12.1997 has now indicated three situations (given in page 10 of the reply) when no meeting of the Committee shall be held and no list for the year in question shall be prepared. Respondent No. 2 has sought to seek support from the judgments from the cases of Nepal Singh Tanwar v. Union of India and Ors., 1998(1) SCALE SP 7 and H.R. Kasturirangan v. Union of India and Ors., 1998(1) SCALE SP 11 in support of their contentions described hereinbefore.
8. The applicant has also filed a rejoinder to the reply filed by the respondent No. 2, which reiterates and expands his contentions and the same has been perused by us.
9. Taking into consideration the rival contentions, we feel that there are really two issues on which we are required to adjudicate in this O.A.
10. The first issue is regarding discrimination which the applicant alleges to have suffered due to the Selection Committee taking into consideration the remarks given by the respondent No. 4 in his APRs for 1996-97 whereas in the case of officers appointed to IFS by the Notification dated 12.10.1998, the APRs have been considered as recorded by the Reporting Officer, reviewed by the Review Authority and accepted by the Accepting Authority. Respondent No. 2, the UPSC, have emphatically denied this and given their detailed reasons in support of such denial as have been mentioned in para 7 of this order. We take note of the fact that UPSC is a Constitutional Body and the Selection Committee, constituted by it and chaired by its Chairman or a Member is composed of very high ranking and responsible officers, classifies the eligible officers included in the eligibility list or zone of consideration (as was the applicant so included) as Outstanding, Very Good, Good or Unfit on an overall relative assessment of their service record strictly in terms of provisions of Promotion Regulations of 1997. At this juncture, it may be useful to extract the relevant provisions of Promotion Regulations:
“5(3-A) The Selection Committee shall classify the eligible officer at Outstanding ‘Very Good’ ‘Good’ or ‘Unfit’ as the case may be on all (sic a) relative assessment of their service records.
5(4) The list shall be prepared by including the required number of names, first from amongst the 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 Forest Service”.
Source : All India Service Manual, Ed. R.N. Mishra, 5th Edition, Hind Publishing House, Allahabad.
Keeping in view the provisions of Promotion Regulations as mentioned above and averments made by the respondent No. 2, the UPSC, we are satisfied that the Selection Committee strictly followed the provisions contained in Regulation (3-A). It is also quite clear from the reply that the Committee based its assessment on the overall APRs and not by just one grading given by any one of the assessing authority, be it Reporting, Reviewing or the Accepting or any other authority. Finally, it has been stated by respondent No. 2, the UPSC, that the Selection Committee applied the criteria adopted by them for assessment of ACRs (or APRs) and records of eligible officers uniformly to all officers in the zone of consideration. We have no reasons to disbelieve a Constitutional Authority like UPSC, which has been able to maintain its extremely high standards of functioning all these decades. Weighed against such assertions of UPSC, unsubstantiated allegations made by the applicant based on presumptions at best and normally non-accessible information at worst, have absolutely no legs to stand. We have also, on the insistence of the applicant gone through the APRs of the applicant especially for the year 1996-97. In view of the submissions of respondent No. 2, the UPSC that the assessment is based on the overall service record, we are satisfied that the additional remarks recorded on the APRs of the applicant for the year 1996-97 would have made adverse impact in the assessment made by the Selection Committee of the UPSC. We, therefore, hold that the applicant was in no way discriminated by the Selection Committee of the UPSC in the assessment of his APRs for 1996-97 and in any comparative assessment based on merit, there just could not be any legitimate expectations that the senior will invariably get a place in the Select List prepared by the Selection Committee. The case law cited by the learned Counsel for respondent No. 2 in their detailed reply also lends complete support to the finding we have arrived at.
11. The second issue to the considered by us relates to the averment of the applicant that vacancies for the years 1995-96, 1996-97 and 1997-98 have been clubbed, which is not permissible as held by Hon’ble the Supreme Court in the case of Syed Khalid Rizvi and Vipin Chand Hiralal Shah (supra). The controversy regarding permissibility of clubbing of vacancies or otherwise has been examined in depth by a Division Bench of this Tribunal and one of us was also in that Bench. In our decision dated 23.5.2000 in O.A. No. 35 of 1994, Ranjeet Singh Gathala v. Union of India and Ors., 2000(2) ATJ 395, even though the case was relating to promotion from Rajasthan Administrative Service (RAS) to Indian Administrative Service, the finding will apply with equal force in the case in hand as the Promotion Regulations, governing the three All India Services, viz. IAS, IPS and Indian Forest Service, are analogous. The Bench, primarily basing its decision on the judgment rendered by Hon’ble the Supreme Court in the case of Vipinchandra Hiralal Shah (supra) held that combining the vacancies for a number of year and holding one selection for all the combined vacancies was not sustainable in law and against the principles laid down by the directly applicable judgment in the case of Vipin Chandra Hiralal Shah and the respondents were, therefore, directed to hold Review Selection Committee meetings for preparation of separate Select Lists for the three years in question. As far as the present O.A. is concerned, after considering the submissions made in the replies of respondent Nos. 2, 3 and 4, we find no justification to change the finding arrived at by the said Bench of this Tribunal in the case of Ranjeet Singh Gathala (supra).
12. In view of the fact that the applicant has also sought a direction to the effect that the meeting of the Selection Committee should be reconvened for appointment to the IFS with redetermination of vacancies separately for each of the years 1995-96, 1996-97 and 1997-98 and preparation of separate Select List for each of these years and also the fact that the Indian Forest Service (Appointment by Promotion) Regulations, 1997 (for short Regulations of 1997) have come into force w.e.f. 1.1.1998, it has become necessary for us to examine whether the aforementioned Regulations of 1997 have necessiated any change in our decision with regard to clubbing of vacancies as rendered in the case of Ranjeet Singh Gathala (supra).
13. Before we take up the discussion on implication of the amendments brought about in the Promotion Regulations w.e.f. 1.1.1998 (amended Regulation being referred to hereinafter as Promotion Regulations of 1997), we are constrained to make an observation. As already mentioned, the applicant in his averments has extensively quoted the unamended Promotion Regulation as it existed prior to 1.1.1998 and has not referred to the Promotion Regulation of 1997. Further, the learned Counsel for the applicant did not argue on the question of clubbing of vacancies and, therefore, had no occasion to help us in assessing the implications of the amended Promotion Regulations on the alleged clubbing of vacancies and sustainability of the procedure adopted by the respondents in taking up all the available vacancies as on 1.1.1998, which obviously would have been vacancies for the years 1995 -96, 1996 -97 and 1997 -98 taken together, preparing one list of eligible SFS officers for consideration by the Selection Committee of the UPSC, the said Committee preparing a Select List and finally the Central Government appointing the officers included in the Select List to the IFS. To compound the mattes respondent No. 1, the Union of India, the framer of the Promotion Regulations, have not filed any reply and the replies of respondent No. 2, the UPSC and respondents Nos. 3 and 4, the State of Rajasthan have also not really gone into any detailed deliberations on the controversy and have not really brought out the implications of amendments in any comparative and worthwhile manner. However, notwithstanding such handicap, we would not like to make any attempt to evade the controversy and would attempt an indepth examination of such implications, if it is found necessary to adjudicate on the issue of alleged clubbing of vacancies for the years 1995-96, 1996-97 and 1997-98.
14. It may be useful to briefly discuss the changes especially those having a bearing on the controversy relating to clubbing of vacancies brought about by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification of 31st January, 1997. Firstly, the definition of the year has been changed from “the period commencing on the first day of April ending on 31st day of March of the subsequent year” (popularly known as the financial year) to the period commencing on the first day of January and ending of the thirty first day of December of the same year, meaning thereby that w.e.f. 1.1.1998 will be the calender year and not financial year which will be relevant as far as Promotion Regulations are concerned. (Emphasis above and hereinafter supplied in respect of new provisions incorporated in the Promotion Regulations of 1997). Secondly, the Promotion Regulations of 1997 provide in Regulation 5(1) under the heading ‘Preparation of a list of suitable officers’ that each Committee shall ordinarily meet every year…. The number of members of the State Forest Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held instead of unamended provisions that ‘the number of State Forest Service to be included in the list shall be calculated as the number of substantive vacancies anticipated in the course of the period of 12 months commencing from the date of preparation of the list. Thirdly, a new proviso under Regulation 5(1) has been added as under :
“Provided that no meeting of the Committee shall be held and no list for the year in question shall be prepared when :
(a) there are no substantive vacancies as on the first day of January of the year in the posts available for the members of the State Forest Service under Rule 9 of the recruitment rules; or (b) the Central Government in consultation with the State Government decides that no recruitment shall be made during the year to the substantive vacancies as on the first day of January of the year in the posts available for the member of the State Forest Service under Rule 9 of the recruitment rules; or (c) the Commission, on its own or on a proposal made by either the Central Government or the State Government, after considering the facts and circumstances of each case, decide that it is not practiable to hold a meeting of the Committee to make the selection to prepare a select list. Finally, in the newly substituted sub-regulation (4) of the Regulation 7 it has provided that the select list shall remain in force till the 31st day of December of the year in which the meeting of the selection committee was held with a view to prepare the list under sub-Regulation (I) of Regulation 5 or up to sixty days from the date of approval of the select list by the Commission under sub-regulation (1) or, as the case may be, finally approved under sub-regulation (2), whichever is later. This is in place of the unamended provision that "the Select List shall ordinarily be in force until its review or revision, effected under sub-regulation (4) of Regulations, is approved under sub-regulation (1) or, as the case may be, finally approved under sub-regulation (2)".
15. A simple reading of the relevant amended provisions in the Promotion Regulations of 1997 will indicate that the framers of the said Regulations have no where provided for clubbing of vacancies or for totalling of the vacancies if the meeting of the Selection Committee of the UPSC could not be held for certain number of years as has happened in the case before us. All it provides is that the number of the members of the State Forest Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held. Simultaneously, even though the framers have retained the word ‘ordinarily’ in Regulation 5(1) while saying that “Each Committee shall ordinarily meet every year….”, they have in our considered opinion, made it much more clear that the Committees must meet every year by specifically providing for situations when no meeting of the Committee shall be held and no list for the year in question shall be prepared by adding a proviso to the said Regulation 5(1) as extracted in the preceding paragraph. Briefly stated, these three situations are — (a) when there are no substantive vacancies as on the first day of January; (b) the Central Government in consultation with the State Government decides that no recruitment shall be made to the available vacancies and (c) the Commission on its own or on a proposal made by either the Central or the State Government decides that it is not practicable to hold a meeting of the Committee. Thus, there has to be either a fact of no vacancies or any of the two considered decisions, and obviously in writing, when no meeting of the Committee shall be held and no list for the year in question shall be prepared. It follows that in the absence of such fact and such decisions, it has now been specifically made mandatory for holding the meeting of the Selection Committee every year. Further, substitution in Regulation 5(1) of ‘each Committee shall ordinarily meet at intervals not exceeding one year’ by more specific and positive Each Committee shall ordinarily meet every year is also indicative of the resolve of the framers of the Promotion Regulations of 1997 that the Committee must meet every year, subject only to contingencies/situations (a) to (c) incorporated in the proviso to Regulation 5(1).
16. However, no specific provision has been incorporated even in the Promotion Regulation of 1997 as to how the vacancies of earlier year (s) will be accounted for when the meeting of the Selection Committee takes place in the year (s) following the year (s) of no meeting of the Selection Committee. The respondent Nos. 3 and 4 in their reply have contended that since the Promotion Regulations of 1997 clearly postulate that the number of substantive vacancies which are available on the first day of January will be taken into consideration without splitting the said vacancies year wise, the question of clubbing or non-clubbing does not arise. We can only wish that such specific provision was incorporated alongwith the amendments of 1997. That would have at least helped in a clear declaration of the intentions of the framers of the Promotion Regulations. Whether such a provision would have been challenged or not is a different matter altogether, Alas, we find no such words and no such postulations in the relevant portions of the Promotion Regulations of 1997, which have been reproduced in para 14 of this order. We have to therefore, hold that if the intention of the framers was to total up all the vacancies, including those of the year (s) when the meeting of the Selection Committee could not be held, they would have incorporated specific provisions incorporating such intentions. Further, we find that the Regulation 5(1) of the Promotion Regulations of 1997 just speaks of determination of vacancies which shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held instead of the pre-amended provision providing for calculation based on number of substantive vacancies anticipated in the course of the period of 12 months commencing from the date of preparation of the list. It is thus clear that in place of a vague and less empirical calculation based on anticipated vacancies, which could even be prone to misuse, the framers of Promotion Regulations of 1997 have opted for a more specific empirical method of determination of vacancies. However, as already mentioned, there is no provision that the total vacancies, including those of preceding year(s) of no meeting years, can be taken up followed by only one eligibility list for vacancies of all the years and one Select List and, therefore, we have no hesitation in holding that clubbing of vacancies is not permissible even under Promotion Regulations of 1997.
17. It has been submitted by respondent No. 2, the UPSC, that there will be practical difficulty in preparing (separate) year wise Select Lists as to whether the cut off date for determining the eligibility of officers is to be fixed with reference to the year in which the Selection Committee meets or with reference to the year for which the Select List pertains, because Regulation 5(3) of the Promotion Regulation provides that, “the Committee shall not consider the members of SFS who have attained the age of 54 years on the first day of January of the year in which it meets.” We find that no amendment has been made as far as Regulation 5(3) is concerned and, therefore, fail to appreciate as to what new practical difficulty has suddenly cropped up. The unamended Promotion Regulations date back to 1963 and if no difficulty was encountered with respect to cut off date for determining the eligibility of SFS officers all these 34 years, how a new practical difficulty has now arisen especially when the amended Promotion Regulations of 1997 has in no way altered Regulation 5(3). In any case, if respondent No, 2 finds any practical difficulty, it is for it to resolve it in consultation with the Central Government. There is, however, an amendment in the first proviso to sub-regulation (3) but it is only to say that a number of the SFS whose name appears in the Select List in force immediately before the date of meeting of the Committee and who has not been appointed to the service only because he was included provisionally in the Select List shall be considered in the fresh list… We, therefore, feel that this contention of respondent No. 2 has no bearing on the controversy relating to clubbing or non-clubbing of the vacancies of previous year(s), when meeting of the Committee could not be held. Much emphasis has also been placed by the respondent No. 2 on the use of the word ‘ordinarily’ in Regulation 5(1). However, inclusion of this word in the Promotion Regulations of 1997 is not a new development; it was very much there earlier also. The learned Counsel for the respondent No. 2 sought support from the cases of Nepal Singh Tanwar (supra) and H.R. Kasturirangan (supra) but the controversy with regard to the word ‘ordinarily’ has been examined at length by the Apex Court and it has been held that it is not mandatory that the meeting of the Selection Committee has to be held every year (emphasis supplied), but when it is not held in a particular year, the reasons cited have to satisfy the Tribunal/Court. We, therefore, do not feel it necessary to stay at this point any longer. We, however, note that the framers of the Promotion Regulations of 1997 have incorporated in the proviso to the Regulation 5(1) which incidently is extracted in para. 14 of this order, the exigencies/situations when no list for the year in question shall be prepared. Three such exigencies/situations have been enumerated under the said proviso. We can examine what impact, if any, these can have on the controversy relating to the permissibility or otherwise of clubbing the vacancies of the year (s) when no meeting of the Committee was held. As far as (a) under the said proviso is concerned, there will be no impact at all since there are no vacancies available on the first day of January. With regard to (b) under the said proviso, there could be some impact as possibilities cannot be ruled out that decision under (b) may be taken for one, two or even more years consequtively and if this is done for, say three years and if in the fourth year it is decided to fill all these vacancies, the question would re-emerge, whether to determine vacancies for each of these three years separately and proceed to make separate Select Lists or club all the vacancies and prepare one Select List. The example may appear far-fetched at first but in these days when a new party coming into power may embark on a ‘mission’ of undoing a large number of things done by the previous political executive, the possibilities for such a situation cannot be ruled out with any degree of certainty. And as far as (c) is concerned, it speaks of impracticability of holding the meeting. Such impracticabilities can even stretch to many years, as has been the experience, especially if there be stay order(s) from Tribunal/Courts. In such cases the, problem of clubbing or non-clubbing is bound to arise. We are, therefore, of the considered opinion that even though the Central Government has taken a welcome step by providing for specific three situations when meeting shall not be held but it has lost the available opportunity of specifically making provisions regarding determination of vacancies separately for each year(s) when meeting could not be held, which provision would have been in consonance with the law laid down by the Apex Court in the case of Vipin Chandra Hiralal Shah and also in tune with the basic principles of equity and justice.
18. During the hearing of the case of Ranjit Singh Gathala (supra), a difficulty was pointed out on behalf of the official respondents that the Selection Committee cannot prepare separate Select Lists for various years in the same sitting since the previous Select List will automatically expire immediately on preparation of the next Select List in terms of provisions in the Regulation 7(4). Although this was not considered as an insurmountable problem even by the Apex Court in Vipin Chandra Hiralal Shah case and there was also the use of the word ‘ordinarily’ in this sub-regulation, the position has now undergone a change with the substitution of a new Regulation 7(4), reproduced in para 14. The old Regulation 7(4)’ s provision that “The Select List shall ordinarily be in force till its review and revision…” does no longer exist in the Promotion Regulations of 1997 and it is perhaps to remove any such difficulty that the framers of Promotion Regulations of 1997 have substituted the old provision with the new one which enables the Select List to remain in force till the 31st day of December….(whole provision in extracted in para 14). If that be so, it indicates the intention of the framers of the Promotion Regulations of 1997 that separate Select List are to be prepared with determination of vacancies separately for the year (s) in which the meeting of the Selection Committee could not be held.
19. Determination of vacancies for each year separately, even for the year when the meeting of the Selection Committee could not be held, also appears to us to be in tune with the time-honoured principles of service jurisprudence of holding the selections separately for the vacancies of different years. By combining the vacancies for two or more years, and there have been instances where meeting of the Selection Committee of the UPSC could not be held for as long as six-seven years, the senior and eligible State Service officers who have a right to be considered for the vacancies of a particular year, do not only get deprived of such timely promotion to the elite All India Services but they are put to severe disadvantage vis-a-vis some of their juniors, who may be having comparatively better service record and such juniors might steal a march over them and get promoted and even become their bosses. In fact, whereas the seniors will, for no fault of their, be forced to face a much wider competition within a much longer zone of consideration, the juniors will become entitled to the vacancies of certain years for which they would not have even been entitled. One can easily imagine the distortions and heart-burning the combining or clubbing of vacancies can create, if meeting of Selection Committee takes place, even for justifiable reasons, after a long gap and longer the gap, the more will be such distortion and heart-burning. One more aspect of this controversy is that the Promotion Regulations, be it for IAS, IPS or IFS, enable the State Service officers to get promoted to an All India Service, with opportunities to serve not only within their own State cadres but on deputation on the Central Government as also on foregin deputation to Public Sector Undertaking etc., wherein the all India seniority of promotee officers matters very significantly. Combining or clubbing of vacancies distorts the all India seniority of promotee officers. For example if the Selection Committee meets after a gap of even 3 years, all those senior officers who lost out to their juniors because of the increased competition not only become junior to their erstwhile juniors, but when such State Service Officer do get appointed to the concerned All India Service next time, he becomes junior to those State Service Officers of other States who might have joined the concerned State Service in the same year but meeting of the Selection Committee having been held timely, such officers will become senior at all India level. This can happen because under Rule 3 of the Regulations of Seniority Rules applicable to all the three All India Services only certain prescribed weightage can be given for the State Service Officers. Yet another fall out of clubbing of vacancies is its serious negative impact on the morale and comradiere amongst the members of the Service. In fact, there is a danger of the State Services even getting divided into groups, one wishing yearly meeting of the Selection Committee and the other, perhaps having an inkling of their excellent service records, hoping or even, if possible, working for delay till they became eligible i.e., completes eight years of continuous service in the prescribed feeder post in the state level service. Since the Annual Performance Report do have a major role in the overall assessment of an officer by the Selection Committee, the adoption of the procedure of clubbing of vacancies can also have the potentital of development of sycophany in order to secure outstanding reports, which could be highly detrimental to the efficiency, impartiality and uprightness of the Services as a whole. What has been discussed in this paragraph does not mean that merit does not have primacy in promotions to the All India Services; the very system of appointment to these Services by promotion is based on merit-cum-seniority but the most meritorious among eligible officers within an eligibility list, prepared with respect to the vacancies in a year, gets selected first. The system is based on the golden mean between merit and seniority and has withstood the test of the time all these years.
20. In view of the discussions from paragraph 11 onwards, we answer issue number two in the manner that the amended Promotion Regulations of 1997 also do not envisage any change as far as the requirement of holding the meeting of the Selection Committee every year and if the meeting cannot be held for justifiable reasons in one or more year (s), the vacancies need to be determined for each of the concerned year separately when the meeting of the Selection Committee takes place in the subsequent year, with list of eligible officers to be prepared separately for such years followed by preparation of the Select List also separately for each of such years.
21. Before we part with the case, it is necessary to advert back to the case and take note of the fact that the meeting of the Selection Committee was admittedly held on 28.7.1998 and the Promotion Regulations of 1997 had already come into operation w.e.f. 1.1.1998. However, it does not mean that for the vacancies for all the three years viz. 1995-96, 1996-97 and 1997-98 will all be determined in terms of Promotion Regulations of 1997. It is well settled law that for filling up vacancies, the Regulations/Recruitment Rules which are applicable on that day need to be applied. The respondents have to, therefore, re-determine the vacancies as per the Promotion Regulations which were applicable at the relevant time.
22. In the result, we dispose of this Original Application with a direction to the respondents to redetermine the vacancies for each of the years 1995-96, 1996-97 and 1997-98 separately and hold Review Selection Committee meeting for preparation of separate Select Lists for the said years, keeping in view the Promotion Regulations as are applicable and the judgment of Hon’ble the Supreme Court in the case of Vipinchandra Hiralal Shah case (supra). This direction may be carried out as expeditiously as possible but within 4 months of the completion of the process of revision in the seniority lists of the SFS, a process which, we understand, is under process.
In the circumstances there will be no order as to costs.