PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
VIPINCHANDRA HIRALAL SHAH
DATE OF JUDGMENT: 25/10/1996
BENCH:
S.C. AGRAWAL, G.T. NANAVATI
ACT
HEADNOTE
JUDGMENT
THE 25TH DAY OF OCTOBER,1996 Present:
Hon’ble Mr.Justice S.C.Agrawal
Hon’ble Mr.Justice G.T.Nanavati K.N.Shukla, Sr.Adv., Hemant Sharma and S.N.Terdel, Advs. with him for the appellants H.S.Parihar Kuldeep S.Parihar, Advs. for the Respondent
JUDGMENT The following Judgment of the Court was delivered: Union of India & Ors. V. Vipinchandra Hiralal Shah
JUDGMENTS.C. AGRAWAL, J.
The short question that falls for consideration in this appeal is whether it is permissible to club vacancies of a number of years while preparing the select list for promotion to the Indian Administrative Service (for short ’Service’) from the State Civil Service. By the impugned judgment dated November 30, 1993 the Central Administrative Tribunal, Ahmedabad Bench (hereinafter referred to as ’the Tribunal’) has held that such clubbing of vacancies is not permissible and that separate select lists should be prepared by the Selection Committee for each year.
The Indian Administrative Service (Recruitment) Rules, 1954 make provision for appointment to the Service by promotion from amongst the substantive members of a State Civil Service [Rules 4(1) (b) and 8(1)]. Such promotion to the Service from the State Civil Service is governed by the Indian Administrative Service (Appointment by Promotion) Regulation, 1955 (hereinafter referred to as ’the Regulations’) Regulation 3 makes provision for constitution of a Committee to make the selection. Regulation 5 prescribes the procedure for making the selection by the Committee and the preparation of a list. The said list prepared by the Committee in accordance with Regulation 5 is required to be forwarded by the State Government to the Union Public Service Commission [Regulation 6] and the list as approved by the Union Public Service Commission forms the select list for purpose of promotion of the members of the State Civil Service [Regulation 7]. Appointments to the Service are made by the Central Government on the recommendation of the State Government from the said Select List [Regulation 9].
The respondent was a member of the Gujarat Administrative Service Class I, having been recruited to the said service Class I, having been recruited to the said service in the year 1967. The select list for promotion to the Service from the State Civil Service was prepared by the Selection Committee under the Regulations in July 1979. Even though respondent had put in the requisite 8 years’ continuous service in the State Civil Service in July 1979, he was not considered by the Selection Committee because he fell outside the zone of consideration. Thereafter no select list was prepared for promotion of State Civil Service officers in Gujarat till December 1986/January 1987. The respondent was not selected in the said selection. He filed a petition (O.A. NO. 646 OF 1988) before the Tribunal wherein he assailed the select list prepared by the Selection Committee in December 1986/January 1987 on the ground that it was not permissible to club together the vacancies of the years 1980 to 1986 for the purpose of making selection under Regulation 5 of the Regulations and that Selection Committee should have met every year to prepare a select list for the vacancies of each year. The said application submitted by the respondent has been allowed by the Tribunal by the impugned judgment. The Tribunal has held that the action of the appellants in clubbing the vacancies and thereby enlarging the zone of consideration could have prejudiced the respondent and, therefore, it was illegal. The Tribunal has directed the appellant to prepare select list from year to year from 1980 to 1986 and thereafter on the basis of vacancies from year to year without clubbing the vacancies in any particular year and as the part of the exercise to consider the case of the respondent for promotion to the Service and should has name figure in the select list and, should the vacancies permit, to appoint him to the Service and to give him all consequential benefits on the basis of such appointment from the date of the appointment. Feeling aggrieved by the said decision of the Tribunal, the appellant has filed this appeal.
The relevant provisions contained in Regulation 5, as in force in 1980, were as under:-
"Regulation 5.
(1) Each Committee shall ordinarily
meet at intervals not exceeding one
year and prepare a list of such
members of the State Civil Service
as are held by them to be suitable
for promotion to the Service. The
number of members of the State
Civil Service, included in the list
shall not be more than twice the
number of substantial vacancies
anticipated in the course of the
period of twelve months, commencing
from the date of preparation of the
list, in the posts available for
them under Rule 9 of the
Recruitment Rules, or 10 percent of
the Senior posts shown against
items 1 and 2 of the cadre schedule
of each State of group of States,
whichever is greater.
(2) The Committee shall consider
for inclusion in the said list, the
cases of members of the State Civil
Services in the order of a
seniority in that Service or a
member which is equal to five times
the number referred in sub-
regulation (1).
Provided that such restriction
shall not apply in respect of a
State where the total number of
eligible officers is less than fie
times the maximum permissible size
of the Select List and in such a
case the Committee shall consider
all the eligible officers.
Provided further that in
computing the number of inclusion
in the field of consideration, the
number of officers referred to in
subregulation (3) shall be
excluded.
Provided also that the
Committee shall not consider the
case of a member of a State Civil
Service unless, on the first day of
January, of the year in which it
means he is substantial in the
State Civil Service and has
completed not less than eight years
of continuous service (whether
officiating or substantive) in the
post of Deputy Collector or in any
other post or posts declared
equivalent thereto by the State
Government.
Provided also that in respect
of any released Emergency
Commissioned or short service
Commissioned Officers appointed to
the State Civil Service, eight
years of continuous service as
required under the preceding
proviso shall be counted from the
deemed date of their appointment to
that service, subject to the
condition that such officers shall
be eligible for consideration if
they have completed not less than
four years of actual continuous
service, on the first day of the
January of the year in which the
committee meets, in the post of
Deputy Collector or in any other
post or posts declared equivalent
thereto by the State Government.
Explanation--The powers of the
State Government under the third
proviso to this sub-regulation
shall be exercised in relation to
the members of the State Civil
Service of a constituent State, by
the Government of that State.
(2A) X X X
(3) The Committee shall not
consider the cases of the members
of the State Civil Service, who
have attained the age of 52 years
on the first day of January of the
year in which it meets.
Provided that a member of the
State Civil Service, whose name
appears in the Select List in force
immediately before the date of the
meeting of the Committee, shall be
considered for inclusion in the
fresh list, to be prepared by the
Committee, even if he has in the
meanwhile attained the age of 52
years.
Provided further that a member
of the State Civil Service who has
attained the age of 54 years on the
first day of January of the year in
which the Committee meet shall be
considered by the Committee, if he
was eligible for consideration on
the first day of January of the
year or of any of the years
immediately preceding the year in
which such meeting is held but
could not be considered as no
meeting of the Committee was hold
during such preceding year or
years.
(4) X X X
(5) X X X
(6) The list so prepared shall be
reviewed and revised every year.
(7) X X X
During the period 1980 to 1986 several amendments were made in the Regulations. In clause (1) for the words "10 percent" the words "5 percent" were substituted. In clause (2) instead of the words "five times" the words "three times" were substituted. In clause (3) the words "52 years" were substituted by the words "54 years", and the second proviso was inserted.
A perusal of Regulation 5 shows that clause (1) required that the Selection Committee shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the Service. The said clause also required that the number of the members of the State Civil Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of preparation of the list. Under clause (2) the Selection Committee was required to consider the cases of members of State Civil Service in the order of a seniority in that service of a number which was equal to five times (subsequently reduced to three times) the number referred in clause (1). Under the third proviso to clause (2) it was prescribed that the Selection Committee shall no consider the case of member of the State Civil Service unless on the first day of January of the year in which it meets his is substantive in State Civil Service and has completed not less than eight years of continuous service (whether officiating substantive) in the post of Deputy Collector or in other post or posts declared equivalent thereto by the State Government. In respect of released Emergency Commissioned or short service Commissioned officers appointed to the State Civil Service the period of continuous service was four years under the fourth proviso to clause (2). In view of clause (3) cases of members of the State Civil Service who had attained the age of 52 years (subsequently raised to 54 years ) on the first day of January of the year in which the Selection Committee meets were not to be considered by the Committee. Under clause (6) the list prepared by the Selection Committee was required to be reviewed and revised every year.
If clause (1) is read with the other provisions in Regulation 5 referred to above the inference is inevitable that the requirement in clause (1) of Regulation 5 that the Selection Committee shall meet at intervals not exceeding one year and prepare a list of members of the State Civil Service who are suitable for promotion in the Service was intended to be mandatory in nature because the eligibility of the persons to be considered both in the matter of length of service and are under clauses (2) and (3) is with reference to the first date of January of the year in which the Selection Committee meets and the number of members of the State Civil Service to be considered for selection is also linked with the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of preparation of the list. We are, therefore of the view that the requirement prescribed in sub-regulation (1) of Regulation 5 regarding the Committees writing at intervals not exceeding one year and preparing a list of such members of the State Civil Service who are suitable for promotion to the Services was a mandatory requirement which had to be followed. The earlier decisions of this Court also lend support to this view.
In Union of India v. Mohan Lal Capoor & Ors.,1974 (1) SCR 797, this Court was construing Regulations 4 and 5 of the Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations, 1955, as they stood at that time. The provisions in those regulations were similar to those contained in Regulation 5 referred to above. In Regulation 4 (1) there was a requirement that the Committee shall meet at intervals not exceeding one year and consider the cases of all substantive members of the State Civil/Police Service who on the first day of January of the year had completed not less than eight years of continuous service. Under Regulation 4(2) it was prescribed that the Committee shall not consider the case of members of the State Civil/Police Service who had attained the age of 52 years on the first day of the January of the year in which the meeting of the Committee is held. Regulation 5(4) prescribed that the list so prepared shall be reviewed and revised every year. Mathew in his concurring judgment, has said :-
"The purpose of an annual revision
or revision or review is to make an
assessment of the merit and
suitability of all the then
eligible candidates and make a
fresh list of the required number
of the most suitable candidates
from among them. In other words,
the purpose of the annual review or
revision of the select list is to
prepare a list and to include
therein the required number of the
most suitable persons from among
all the then eligible candidates-
[P. 802]
"When Regulation 5(4) says that the
list prepared in accordance with
Regulation 5(1) shall be reviewed
or revised every year, it really
means that there must be an
assessment of the merit and
suitability of all the eligible
members every year. The paramount
duty cast upon the Committee to
draw up a list under Regulation
5(1) of such members of the State
Civil/Police Service as satisfy the
condition under Regulation 4 and as
are held by the Committee to be
suitable for promotion to the
service would be discharged only if
the Committee makes the selection
from all the eligible candidates
every year."
[p. 802] Beg. J., as the learned Chief Justice then was, he said:-
"The required number has thus to be
selected by a comparison of merits
of all the eligible candidates of
each year."
[p.818]
Clause (1) of Regulation 5 of the Regulations differs from clause (1) of Regulation 4 which was considered by this Court in Mohan Lal Capoor (supra) in the sense that the word "ordinarily" found in clause (1) of Regulation 5 was not contained in clause (1) of Regulation 5 was not contained in clause (1) of Regulation 4. The insertion of the word "ordinarily" does not, in our opinion, alter the intendment underlying the provision. It only means that unless there are good reasons for not doing so, the Selection Committee shall meet every year for making the selection.
In Syed Khalid Rizvi & Ors. v. Union of India & Ors., 1993 Supp. (3) SCC 575, this Court was constructing the provisions of Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1995 which is in pari material with clause (1) of Regulation 5 and contained the word "ordinarily", It was observed :-
"......since the preparation of the
select list is the foundation for
promotion and its omission impinges
upon the legitimate expectation of
promotee officers for consideration
of their claim for promotion as IPS
officers, the preparation of the
select-list must be constructed to
be mandatory. The Committee should,
therefore, meet every year and
prepare the select-list and be
reviewed and revised from time to
time as exigencies demand."
[p. 586]
"Unless the select-list is made
annually and reviewed and revised
from time to time, the promotee
officers would stand to lose their
chances of consideration for
promotion which would be a
legitimate expectation. This Court
in Mohan Lal Capoor case held that
the Committee shall prepare every
year the select-list and the list
must be submitted to the UPSC by
the State Government for approval
and thereafter appointment shall be
made in accordance with the rules.
We have, therefore, no hesitation
to hold that preparation of the
select-list every year is
mandatory. It would subserve the
object of the Act and the rules and
afford an higher opportunity to the
promotee officers to reach higher
echelons of the service."
[p. 605]
It must, therefore, held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst State Civil Service officers who fulfill the conditions regarding eligibility on the first day of the January of the year in which the Committee meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service officers who were eligible and fall within the zone of consideration for selection in that year.
In the present case, the Selection Committee did not meet during the years 1980 to 1985 and it met in December 1986/January 1987 and a Consolidated Select List was prepared for the vacancies of the years 1980 to 1986. There was thus a failure to comply with the mandatory requirement of Regulation 5 of the Regulations. In Syed Khalid Rizvi (supra) select lists had not been prepared for the years 1971, 1975, 1976, 1979 and 1980. During the pendency of the appeal in this Court the State Government was directed to prepare the select list on national basis for the said years and select lists were then prepared. In the instant case, State Civil Service officers who were selected in the select list prepared in December 1986/January 1987 have not been impleaded as parties and, therefore, their appointment to the Service cannot be upset. In his application before the Tribunal the respondent sought a direction for consideration of his case afresh for the purpose of inclusion in the select list. The respondent can seek such consideration only in a way that it does not disturb the appointment of other State Civil Service officers who have been appointed to the Service on the basis of the Select List of December 1986/January 1987. For that purpose out of the said officers whose appointment is not to be disturbed those who were senior to the respondent in the State Civil Service will have to be adjusted against the vacancies for the years 1980-1986. If, as a result of such adjustment the vacancies of a particular year/years are completely filled, then no further action is to be taken in respect of the vacancies for that/those year/years. If after such adjustment the vacancies of a particular year/years are not completely filled, steps will have to be taken to prepare notional Select List/Lists for the vacancies of that/these year//years separately from amongst State Civil Service officers who are eligible and fall within the zone of consideration for selection in respect of the vacancies of the particular year. If the name of the respondent is included in the notional Select List/Lists so prepared or any particular year/years during the period 1980 to 1986 and is places in the order of merit so as to have been entitled to be appointed against a vacancy of that particular year, he can justifiably claim to be appointed to the Service against that vacancy of that year. But that appointment of other State Civil Service officers, through junior to the respondent, made on the basis of the Select List of December 1986/January 1987 and the vacancy against which the appointment of the respondent would be made will have to be adjusted the subsequent vacancies falling within the promotion quota prescribed for State Civil Service officers.
Therefore, while upholding the judgement of the Tribunal that the respondent is entitled to seek fresh consideration on the basis that the selection should be made for vacancies occurring in each year separately, but in substitution of the directions given by the Tribunal in the regard, the following directions are given :-
(1) The number of vacancies falling in the quota
prescribed for promotion of State Civil Service
officers to the Service shall be determined separately
for each year in respect of the period from 1980 to
1986.
(2) The State Civil Service officers who have been
appointed to the Service on the basis of the impugned
Select List of December 1986/January 1987 and were
senior to the respondent in the State Civil Service
shall be adjusted against the vacancies so determined
on year wise basis.
(3) After such adjustment if all the vacancies in a
particular year or years are filled by the officers
referred to in paragraph (2), no further action need be
taken in respect of those vacancies for the said
year/years.
(4) But, if after such adjustment vacancy/vacancies
remain in a particular year/years during the period
from 1980 to 1986, notional Select List/Lists shall be
prepared separately for that year/years on a
consideration of all eligible officers falling within
the zone of consideration determined on the basis of
the vacancies of the particular year.
(5) If the name of the respondent is included in the
notional Select List/Lists prepared for any particular
year/years during the period 1980 to 1986 and if he is
so placed in the order of merit so as to have been
entitled to be appointed against a vacancy of that
particular year, he be appointed to the Service against
that vacancy of that year with all consequential
benefits.
(6) The vacancy against which the respondent is so
appointed would be adjusted against the subsequent
vacancies falling in the promotion quota prescribed for
the State Civil Service officers.
(7) Such appointment of the respondent would not
affect the appointments that have already been made on
the basis of the impugned Select List of December
1986/January 1987. The appeal is disposed of accordingly. No order as to costs.