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Nanu Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1986)ILLJ246Ker
AppellantNanu
RespondentState of Kerala and ors.
Cases Referred(Union of India v. M.L. Capoor
Excerpt:
.....of the learned advocate general and the central government pleader the list prepared by the select committee would show that candidates 1 to 15 came within the category 'very good' and the rest within the category 'good'.regulations postulate that seniority has to be respected within the category of outstanding, very good and good. learned advocate general submitted that as all material papers were placed before the committee and as they considered the overall relative assessment of the service particulars of the candidates the selection can be impugned only on strong grounds like malafides and not on the score that the committee did not set out any reason for supersession especially in view of the present position in the regulations that no reasons need be recorded by the..........that they have unblemished service, that they have obtained very many awards and that the select committee obviously ignored their claims and selected their juniors2. petitioner in op 7292/1983 states that he was promoted as assistant commandant, malabar special police on 23rd march, 1968 as per ext.p6 order that the post isequivalent to the post of dy. s.p. and that the select committee superseded him and gave him a low ranking chiefly because correct service particulars were not furnished to them. it is also pointed out that his reversion was probably highlighted before the select committee whereas his reinstatement was suppressed from them another contention is that 6th respondent (in op.7292/1983) who has been declared to be junior to the petitioner was shown as senior.....
Judgment:

Pareed Pillay, J.

1. Petitioners in both the Original petitions are police officers whose grievance is that they were not promoted to the Indian Police Service whilst their juniors were preferred Petitioners in OP 4429/83 challenge the inclusion of respondents 5 to 8 in the I.P.S. cadre ignoring their legitimate claims Petitioner in OP 7292/1983 challenges the inclusion of respondents 6 to 8 in the I.P.S. cadre on the ground that they are juniors to him Seniority of additional 9th respondent is admitted by the petitioner Petitioners in both the Original Petitions contended that they have unblemished service, that they have obtained very many awards and that the select committee obviously ignored their claims and selected their juniors

2. Petitioner in OP 7292/1983 states that he was promoted as Assistant Commandant, Malabar Special Police on 23rd March, 1968 as per Ext.P6 order that the post isequivalent to the post of Dy. S.P. and that the select committee superseded him and gave him a low ranking chiefly because correct service particulars were not furnished to them. It is also pointed out that his reversion was probably highlighted before the Select Committee whereas his reinstatement was suppressed from them Another contention is that 6th respondent (in OP.7292/1983) who has been declared to be junior to the petitioner was shown as senior before the Select Committee and this obviously influenced them against his claims. Learned Counsel for the petitioner submitted that in OP. 4543 of 1977 this court had held that the petitioner is senior to the 6th respondent and as that decision has become final, petitioner's seniority vis-a-vis 6th respondent is beyond any challenge.

3. Contention of the contesting respondents is that the select list has been prepared by the Select Committee considering the entire service records and they have chosen to give ranking to all the candidates and as the petitioners in both the Original petitions did not come within the ranking of one to ten they cannot challenge the select list on the ground that their seniors were preferred against them.

4. The learned Advocate General and the Central Government Pleader contended that when a selection is made from among the candidates and some of them are found to be outstanding or very good than others, no question of seniority arises thereafter.

5. Petitioners have no case that the Select Committee acted malafide or vindictively It is the case of the petitioner in OP.7292/1983 that the Select Committee was not supplied with his entire service records, that certain details were in fact suppressed from them and therefore the very selection is vitiated. It is argued that the respective seniority of the candidates were not placed before the committee and had it been done petitioner would have definitely been ranked higher. Learned counsel for the contesting respondents contended that entire service records of all candidates were placed before the Select Committee and the committee on a relative assessment of the service particulars made the ranking. It is contended that in the absence of any pleading of malafides or allegations of favouritism or nepotism the list cannot be challenged before the court. Another contention is that this court cannot sit in appeal over the selection or the ranking given by the committee,

6. Petitioner Nanu contended that he is really senior to respondents 6 to 8 and the fact that he is senior to the 6th respondent could be seen from the decision in OP. 4543/77. Learned Advocate General and the Central Government Pleader pointed out that once ranking is given and it has been found that the petitioner Nanu does not come within the category 'very good' he cannot advance a case on the basis of his seniority. The aforesaid argument is true in the case of the petitioners in OP. 4429/1983 also. There is considerable force in the contention of the learned Advocate General and the Central Government Pleader The list prepared by the Select Committee would show that candidates 1 to 15 came within the category 'very good' and the rest within the category 'good'. Regulations postulate that seniority has to be respected within the category of outstanding, very good and good. This has been followed in the list.

7. In pursuance of Sub-rule (1) of Rule 9 of the Indian Police Service (Recruitment) Rules, 1954, the Central Government, in consultation with the State Governments and the Union Public Service Commission, made the Indian Police Service (Appointment and Promotion) Regulation, 1955. Regulation 3 provides for the constitution of a committee for the selection of the candidates to the IPS cadre Regulation 5(2) envisages that the committee shall consider for inclusion in the list the cases of members in the State Police Service in the order of seniority in that service. It is provided that the committee shall not consider the case of a member in the State Police Service unless, on the 1st day of January of the year in which it meets he is substantive in the State Police Service, whether officiating or substantive in the post of Dy. Superintendent of Police or in any other post or posts declared equivalent thereto by the Slate Government. It is conceded that all the candidates considered by the Select Committee had the necessary qualifications. Regulation 6(iii) has been deleted vide notification No. 11639/3/78 A/S(1) dated 2nd June, 1979 It is conceded by the counsel for the petitioners that as per the present Promotion Regulations there is no need to record reasons for superseding any officer Before deletion, it was incumbent upon the committee to record reasons for the proposed supersession of any member of the State Police Service.

8. Learned counsel for the petitioners contended that though reasons for supersession need not be stated by the committee in all fairness and propriety, it is really necessary to state the reasons It is argued that if such an unbridled power is given to the Select Committee, there is every chance of misuse or acting in high-handed and arbitrary manner. Learned Counsel relying on 1981-II L.L.J. 303 (Umacharan v. State of M.P.) contended that it the select committee is to make the selection of the candidates without assigning reasons for supersession of any officer it would result in injustice and arbitrariness in making the selections. In the above decision Supreme Court had occasion to consider Regulation 5(5) which reads thus:

If in the process of selection, review or revision it is proposed to supersede any member of the State Police Service, the committee shall record its reasons for the proposed supersession.

It is conceded by the petitioners that as it stands now the select committee need not spell out any reasons for supersession of any officer. But, counsel for the petitioners contended that even though the Select Committee is not bound to record reasons for supersession of any officer it does not mean that they can pick and choose' in an arbitrary manner. Counsel contended that arbitrariness on the part of the Select Committee cannot be justified on the ground that the Committee is not expected to record reasons for supersession. Such a stand cannot be countenanced before a court of law. Learned Advocate General submitted that as all material papers were placed before the committee and as they considered the overall relative assessment of the service particulars of the candidates the selection can be impugned only on strong grounds like malafides and not on the score that the committee did not set out any reason for supersession especially in view of the present position in the Regulations that no reasons need be recorded by the committee The argument of the petitioners that the basic fact to be considered is the seniority and all other considerations should be outweighed by it does not appear to be correct as Regulation 5(4) clearly stipulates that on an overall relative assessment of the service records the Select Committee has to make the classification from the eligible officers.

9. The confidential rolls of the officers were produced before this court. We have gone through them. There is no basis for the allegation of K. Nanu that all his service details were not placed before the Committee. His main contention that the fact that he got honourable reinstatement after dismissal from service was not placed before the Committee does not appear to be correct. On going through the service records we find that none of the officers could be characterised as persons without any unblemished service with no occasion of reprimand or censure. Service records would show that there were reprimands and censures in the early stages of the career of the officers including that of the petitioners. It would also show that there was marked improvement in their performance when they gained experience. In the absence of allegations of nepotism or favouritism or malafides, it is only reasonable to hold that the Committee considered overall service particulars and came to the decision. As the Committee assessed overall service records of the candidates and gave ranking to them and as there is no material to show that there was any suppression of material data of any of them, it is futile to contend that the selection is bad.

10. Counsel for the petitioners relied on 1973-II L.L.J. 504 (Union of India v. M.L. Capoor) wherein it has been held as follows at para 28 on page 520:

It is incumbent on the select committee to state reasons in a manner which would disclose how the record of each superseded officer stood in relation to records of others who were to be preferred. This is in the context of the effect upon the rights of aggrieved persons who are entitled to protection of Articles 14 and 16 of the Constitution and particularly this is the only remaining visible safeguard against the possible injustice and arbitrariness in making selections.

In the above decision, Supreme Court held that Regulation 5(5) is mandatory and that the Committee should state reasons for superseding any officer As pointed out in the preceding paragraph, the Select Committee need not record any reasons for superseding any officer in view of the present Promotion Regulations. Counsel for the petitioners submitted that the deletion of the Regulation requiring the Select Committee to state reasons for supersession cannot cloth them with absolute discretion to do anything they chose' in utter disregard of elementary rules of fairplay and justice. On going through the service records of the officers we do not find that the selection by the Committee is in any way unfair to the petitioners or that it is outrageous to be interfered by this court in these proceedings. The very fact that the concerned regulation which made it mandatory to the select committee to record reasons for supersession has been deleted would show that the regulation making authority did not want it and reposed full confidence in the Select Committee.

11. It would be useful to refer the following passage in Administrative Law (Wade) 5th edition at page 34:

System of judicial review is radically different from the system of appeals. When hearing an appeal the court is concerned with the merits on the decision under appeal. When subjecting some administrative act or order to judicial review, the court is concerned with its legality. On an appeal the question is 'right or wrong'? On review the question is 'lawful or unlawful'?

The question in the case is as to whether the Select Committee has done anything per-se illegal or whether its decision is in any way perverse or without any legal authority. It is true that the Select Committee has superseded the petitioners when the ranking was given. The Select Committee has to make a decision on the basis of materials placed before it. Seniority is one of the deciding factors. But, mere seniority is not the governing factor. Seniority can only be one of the several factors which could be counted when assessment of the comparative experience and performance in the service are reckoned. Regulation 5(4) makes it amply clear that overall relative assessment of the service has to be considered and then only the officers can be classified as 'outstanding', 'very good', 'good' or 'unfit'.

12. It is next contended that the unbridled power given to the Select Committee offends Articles 14 and 16 of the Constitution. In OP.7292/1983 petitioner has ought writ of mandamus or other appropriate writ, direction or order declaring that Regulation 5(4) and (5) of the Indian Police Service (Appointment and Promotion) Regulations, 1955 in so far as it gives unguided and uncanalised power to the Select Committee to include or not to include the name of eligible officers in the different categories mentioned in Sub-clause 4 of Regulation No. 5 are illegal, unjust and discriminatory and violative of Articles 14 and 16 of the Constitution of India. The stand of the petitioner is that under Regulation 5(4) Government has not prescribed guidelines to the Select Committee in respect of the preparation of the select list and inclusion of eligible officers as 'outstanding', 'very good', good' or 'unfit' and in the absence of such guidelines the power granted to the Select Committee for inclusion and for rejection in the select list of eligible officers is highly arbitrary, discriminatory and hence violative of Articles 14 and 16 of the Constitution of India.

13. It is argued that such uncanalised and unguided power vested in the Select Committee would lead to discrimination, favouritism and rejection of legitimate claims of the eligible officers. Learned Advocate General and Central Government Pleader contended that there cannot be any arbitrary, fanciful or capricious selection possible in view of the amended sub regulations 4 and 5 of the Promotion Regulations. The Select Committee is composed of high ranking officers including a representative of the Union Public Service Commission, In fact, the rule making authority has curtailed the discretion of the Select Committee by directing it to classify the eligible officers as 'outstanding', 'very good', 'good', or 'unfit' after considering the overall relative assessment of the service records of the candidates. As the Select Committee consists of very senior officers of the State Government and as Chairman or a member of the Union Public Service Commission presides over the meetings and as these officers cannot be imputed with any malafides unless it has been established and as they are experts in the art of administration and governance, there is no force in the contention that very wide and arbitrary powers are vested in them.

As the regulations postulate that the Select Committee should classify the officers as 'outstanding', 'very good', 'good' or unfit' after considering the overall relative assessment of the service records of the candidates. As the Select Committee consists of very senior officers of the State Government and as Chairman or a member of the Union Public Service Commission presides over the meetings and as these officers cannot be imputed with any malafides unless it has been established and as they are experts in the art of administration and governace, there is no force in the contention that very wide and arbitrary powers are vested in them.

14. As the regulations postulate that the Select Committee should classify the officers as 'outstanding', 'very good', 'good' or 'unfit' on a consideration of overall relative assessments of their service records and as the entire service records are placed before them, it cannot be said that they are given unbridled and arbitrary powers. To assess the overall relative assessment of their service, records necessarily the Committee will have to consider the confidential records of the officers. Under normal circumstances and in the ordinary course, we cannot expect that such a Committee would act in a prejudicial manner or adopt a partisan attitude. Moreover, the function of selection is not given to a single individual. If it was so, there might have been atleast some chance of erratic or biased decisions favouring one officer to the prejudice of another. As the Promotion Regulations have given proper guidelines as to how the assessment has to be made of the officers, it cannot be said that the Select Committee is given unbridled and uncanalised power over the matter. As the Select Committee has to peruse service records and classify the officers on the basis of the overall relative assessment of their service, it is difficult to accept the contention that Regulations 5(4) and (5) of the Indian Police Service (Appointment and Promotion) Regulations, 1955 is illegal, unjust, discriminatory and violative of Articles 14 and 16 of the Constitution of India.

15. In para 6 of the Counter Affidavit filed by the 5th respondent in OP. 7292/1983, it is specifically asserted that character rolls dossiers of the officers and such other information or records relating to integrity of officers produced by the State Government were considered by the Selection Committee while assessing the merit and suitability of the officers. It is the case of the contesting respondents that the Committee has considered the service records and assessed the merits and suitability of the officers. As senior officers of the State as well as the member of the Union Public Service Commission were associated in the selection process and as unanimous decision was arrived at by them, it is preposterous to contend that the selection made by the Select Committee is liable to be guashed. In the absence of any assertion or allegation that the Selection Committee adopted a partisan and partial attitude in giving high ranking to those who are not really worthy of it the reliefs sought in the Original Petitions have only to be rejected.

16. Relying on AIR 1974 SC 87, Advocate, Mr. K.J. Joseph for the petitioner Nanu argued that seniority has a pivotal role to play and as his seniority was not taken into account and as the real facts relating to his seniority was not placed before the Select Committee he was adversely affected. In the above decision is held as follows:

The Selection Committee has unrestricted choice of the best available talent, from amongst eligible candidates, determined by a reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor. The required number has thus to be selected by a comparison of merits of all the eligible candidates of each year. But, in making the selection seniority must play its due role. Seniority would however, only be one of several factors affecting assessment of merit as comparative experience in service should be.

In the present case, petitioners were ranked in the lower order This has been done on the assessment of their entire service records. Therefore, contention of the petitioners that their seniority was not taken into account or reckoned is not tenable.

17. In a case where there is flagrant violation of the procedure adopted by the Selection Committee or when allegation of malafides, favouritism and nepotism has been established, this court undoubtedly has power to interfere with the selection list prepared by the Select Committee and grant appropriate reliefs to the petitioners So far as the present Original petitions are concerned, we do not find any reason to interfere with the select list prepared by the Committee as it has not been established that there was any violation of the Promotion Regulations or wanton disregard of material facts or service data of the officers. As already pointed out, there are no allegations of malafides or favouritism on the part of the Select Committee.

We do not find sufficient grounds to allow the Original Petitions. In the result, the Original Petitions are dismissed with no order as to costs.


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