P. Prabha v. State of Kerala and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 4TH DAY OF NOVEMBER 2016/13TH KARTHIKA, 1938 ## WP(C).No. 28906 of 2009 (S) ---------------------------AGAINST THE ORDER/JUDGMENT IN OA 387/2008 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 30.9.2009 ## PETITIONER/APPELLANT: ----------------------- P.PRABHA, AGED 55 YEARS, S/O. LATE V.PADMANABHAN, SUPERINTENDENT OF POLICE(NON-IPS) (RETIRED), RESIDING AT "SREEPADMAM", SREENIVASAPURAM P.O., VARKALA, THIRUVANANTHAPURAM-695145. BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.K.RAMACHANDRAN (THYKOODAM) ## RESPONDENTS : - -------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. 3. UNION PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, SHAJAHAN ROAD, NEW DELHI. 4. THE SELECTION COMMITTEE FOR SELECTION TO THE INDIAN POLICE SERVICE, CONSTITUTED UNDER REGULATION 3 OF THE IPS, (APPOINTED BY PROMOTION), REGULATIONS,1955, REP. BY ITS CHAIRMAN, UNION PUBLIC SERVICE COMMISSION, SHAJAHAN ROAD, NEW DELHI. WP(C).No. 28906 of 2009 (S) 5. C.RAJAGOPAL, PRESENTLY WORKING AS PRINCIPAL, POLICE TRAINING COLLEGE, VAZHUTHACAUD, THIRUVANANTHAPURAM, RESIDING AT, 'PADMA', TC 9/164-1, 'O' STREET, JAWAHAR NAGAR, KOWDIAR, THIRUVANANTHAPURAM. 6. S.JOGESH, SUPERINTENDENT OF POLICE, VIGILANCE (SOUTHERN RANGE), PLAMMOODU, PATTAM, THIRUVANANTHAPURAM. 7. GEORGE VARGHESE, SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE (RURAL), KOZHIKODE-RURAL, VADAKARA, PERMANANTLY RESIDING AT EDAYILE VEEDU, ELAKOLLUR, KONNI P.O., PATHANAMTHITTA. 8. CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, REP. BY ITS REGISTRAR, ERNAKULAM. - ADDL.R9 S.SASIKUMAR, SUPERINTENDENT OF POLICE, CB CID HEAD QUARTERS, TRIVANDRUM. - ADDL.R10 P.H.ASHRAF, SUPERINTENDENT OF POLICE, CB CID -SIG-II, ERNAKULAM. ADDL.R11 V.C.MOHANAN, SUPERINTENDENT OF POLICE, MARINE ENFORCEMENT AND VIGILANCE, TRIVANDRUM. *ADDL.R9 TO R11 ARE IMPLEADED AS PER ORDER DTD.17.11.2009 IN I.A.No.14099/09. R1 BY GOVERNMENT PLEADER SRI.V.K.RAFEEQUE R7 BY ADV. SRI.P.V.MOHANAN ADDL.R9 TO 11 BY ADV. SRI.S.SREEKUMAR (SR.) R5 BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL BY SRI.THOMAS MATHEW NELLIMOOTTIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.8.2016, THE COURT ON 04.11.2016 DELIVERED THE FOLLOWING: WP(C).No. 28906 of 2009 (S) ## APPENDIX PETITIONER'S EXHIBITS :- EXT.P1 COPY OF THE AMENDED ORIGINAL APPLICATION DTD.10.7.2008 WITH ANNEXURES. EXT.P2 COPY OF THE REPLY STATEMENT DTD.20.2.2009 OF THE 1[st] RESPONDENT. EXT.P3 COPY OF THE REPLY STATEMENT DTD.29.4.2009 OF THE 2[nd] RESPONDENT. EXT.P4 COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS 3 AND 4 DTD.8.4.2009. EXT.P5 COPY OF THE REJOINDER STATEMENT DTD.12.7.2009 OF THE PETITIONER. EXT.P6 COPY OF THE REJOINDER STATEMENT DTD.27.7.2009 OF THE PETITIONER. EXT.P7 COPY OF THE REPLY STATEMENT DTD.22.1.2009 OF THE 5[th] RESPONDENT. EXT.P8 COPY OF THE REPLY STATEMENT DTD.28.12.2008 OF THE 7[th] RESPONDENT. EXT.P9 COPY OF THE REJOINDER STATEMENT TO THE REPLY STATEMENT OF RESPONDENTS 5 & 7 WITH ANNEXURE. EXT.P10 COPY OF THE REPLY STATEMENT DTD.29.3.2009 OF THE 5[th] RESPONDENT. EXT.P11 COPY OF THE ADDITIONAL REJOINDER TO THE ADDITIONAL REPLY STATEMENT OF RESPONDENT 5 DTD.27.7.2009. EXT.P12 COPY OF THE ORDER DTD.30.9.2009 IN O.A.No.387/2008 OF THE 8[th] RESPONDENT TRIBUNAL. RESPONDENTS' EXHIBITS :- NIL. True copy P.A to Judge **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------W.P.(C)No.28906 of 2009 -----------------------------------------------------------------Dated this the 4[th] day of November, 2016** ## **JUDGMENT** ## Anil K.Narendran, J. The petitioner, who is the applicant in O.A.No.387/2008 on the file of the Central Administrative Tribunal, Ernakulam Bench, has filed this Writ Petition challenging Ext.P12 order of the Tribunal in that O.A. dated 30.9.2009. The petitioner, who was a member of the Kerala State Police Service and working as Vigilance Officer (Excise), Office of the Commissioner of Excise, Thiruvananthapuram, has filed that O.A. seeking for an order to set aside Annexure A8 select list of 2007 of the officers in the State Police Service published on 28.8.2008, for filling up three substantive vacancies in the IPS Kerala Cadre; Annexure A9 notification dated 28.8.2008 appointing the 6[th] and 7[th] respondents to the Indian Police Service on probation and allotting them to the Kerala Cadre; and Annexure A10 notification dated 30.9.2008 including the name of the 5[th] respondent as 'unconditional' in Annexure A8 select list and appointing him as a W.P.(C)No.28906 of 2009 2 member of Indian Police Service on probation and allotting him to the Kerala Cadre; declare that, Regulation 6 of the Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as 'the Promotion Regulations') as unconstitutional, ultra vires and void; and for other consequential reliefs. 2. The reliefs sought for in the O.A. were opposed by the 1[st] respondent by filing Ext.P2 reply statement; by the 2[nd] respondent by filing Ext.P3 reply statement; by the 3[rd] and 4[th] respondents by filing Ext.P4 reply statement; by the 5[th] respondent by filing Ext.P7 reply statement, which was followed by Ext.P10 additional reply statement and the 7[th] respondent by filing Ext.P8 reply statement. The applicant has filed Exts.P5, P6 and P9 rejoinders and Ext.P11 additional rejoinder. 3. After considering the rival contentions the Tribunal rejected the O.A. by Ext.P12 order dated 30.9.2009, holding that the selection and promotion of respondents 5 to 7 to IPS Kerala Cadre is strictly in accordance with the Promotion Regulations W.P.(C)No.28906 of 2009 3 and as such no interference is warranted. Feeling aggrieved by Ext.P12 order, the petitioner is before this Court in this writ petition. 4. We heard the arguments of the learned counsel for the petitioner/applicant, the learned Government Pleader appearing for the 1[st] respondent State, the learned Assistant Solicitor General of India for the 2[nd] respondent Union of India, the learned Central Government Counsel for the 3[rd] respondent Union Public Service Commission and the 4[th] respondent Selection Committee, the learned counsel for the 5[th] respondent and also the learned counsel for the 7[th] respondent. Despite service of notice, none appeared for the 6[th] respondent. 5. The pleadings and materials on record would show that, the applicant entered State Police Service as Sub Inspector of Police on 15.7.1976. Later he was promoted as Circle Inspector of Police. While so, he was included in the select list for promotion to the cadre of Deputy Superintendent of Police and promoted as such on 31.8.1997. As per Annexure A1 order of the W.P.(C)No.28906 of 2009 4 1[st] respondent dated 24.10.2000, the probation of the applicant was declared as satisfactorily completed in the category of Deputy Superintendent of Police, with effect from 1.2.1999 F.N. Later, by Annexure A2 order dated 18.12.2006, the applicant was confirmed in the cadre of Deputy Superintendent of Police with effect from 1.8.2005. 6. According to the applicant, having completed 8 years of continuous service in the post of Deputy Superintendent of Police, he became eligible and entitled to be appointed by promotion to Indian Police Service on 30.8.2005 against the vacancies of the year 2006 onwards, meant for the members of the Kerala State Police Service. In Annexure A3 final seniority list of Deputy Superintendent of Police in the General Executive Branch as on 4.8.2003, the applicant has been assigned with rank and seniority at Sl.No.233 and respondents 5 to 7 at Sl.Nos.191, 198 and 229 respectively. 7. While continuing as Deputy Superintendent of Police, Narcotic Cell, Thiruvananthapuram City, the applicant was W.P.(C)No.28906 of 2009 5 selected for promotion as Superintendent of Police (Non-IPS) and was posted in the Special Branch CID (Admn.), Thiruvananthapuram, vide Annexure A4 order dated 7.6.2006. His probation in the post of Superintendent of Police (Non-cadre) was declared to have been satisfactorily completed, with effect from 15.6.2007 F.N. vide Government order dated 2.11.2007. According to the applicant, for want of sufficient vacancies, he was not considered for appointment by promotion to IPS Kerala Cadre for the year 2006. The vacancies for the year 2007 were determined as three by the 2[nd] respondent UPSC in consultation with the 1[st] respondent State. Therefore, nine State Police Officers in the substantive cadre of Deputy Superintendent of Police were included in the field of choice and the applicant was included at Sl.No.7 in the proposal list prepared and forwarded to the 3[rd] respondent Selection Committee. Respondents 5 to 7 were included in the said proposal list at Sl.Nos.3, 4 and 6 respectively. W.P.(C)No.28906 of 2009 6 8. Relying on the averments in sub-para.(vii) to (ix) of para.4 of the O.A., the applicant contended that, he has got unblemished meritorious service to his credit and that he has been rated as 'outstanding'/'excellent' for the entire period of 5 years from 2002 to 2006, preceding the selection year of 2007, except for a period of 23 days from 21.5.2006 to 13.6.2006. The applicant has 18 Good Service Entries, 2 Cash Rewards and 2 Appreciations to his credit. As evident from Annexure A5 communication dated 25.1.2008, the applicant has been awarded the President's Medal for Meritorious Service on the Republic Day-2008, taking into account his service upto 2007. On the other hand, as stated in sub-para.(x) to (xiii) of para.4 of the O.A., respondents 5 to 7, though are seniors of the applicant in the cadre of Deputy Superintendent of Police, have no equal or better merit than him. The 5[th] respondent was placed under suspension for the period from 21.11.2003 to 8.1.2004. Similarly, the 6[th] respondent was placed under suspension for the period from 10.7.2002 to 17.1.2003 and thereafter, from W.P.(C)No.28906 of 2009 7 11.12.2003 to 13.2.2004. The grading of respondents 5 to 7 in their Annual Confidential Reports, as stated in sub-para.(x) of para.4 of the O.A., are much lower than that of the applicant. However, the Selection Committee, which met on 26.3.2008 pursuant to Annexure A6, for preparation of select list for 2007 recommended the name of respondents 5 to 7 for appointment by promotion to IPS Kerala Cadre and accordingly, they were selected and appointed as such, by Annexures A8 to A10 notifications. 9. Feeling aggrieved by Annexures A8 to A10 the applicant approached the Tribunal in O.A.No.387/2008 contending that, sub-regulation (5) of Regulation 5 of the Promotion Regulations gives primacy to the process of selection. Therefore an 'outstanding' junior should be placed higher in the select list in preference to a 'good' or 'very good' senior officer. If that be so, respondents 5 to 7 who were only eligible to be graded as 'very good' or 'good' cannot be preferred to the applicant who has all along been graded as 'outstanding' for the W.P.(C)No.28906 of 2009 8 preceding five years of selection. As such, the inclusion of respondents 5 to 7 in Annexure A8 select list in preference to the applicant is illegal. The applicant contended further that, in view of Annexure A11 guidelines/procedures for categorisation of State Civil/Police/Forest service officers and preparation of list of suitable officers for promotion to IAS/IPS/IFS in terms of subregulations (4) and (5) of Regulation 5 of the Promotion Regulations, the Selection Committee has to go through the service records of each of the eligible officers with special reference to their performance during the last 5 years. According to the applicant, the grading of the 5[th] and 7[th] respondents is not in conformity with the criteria prescribed in Annexure A11 revised guidelines. 10. Before the Tribunal, the 1[st] respondent State contended that, though the name of the applicant was included in the zone of consideration, his name did not figure in the select list prepared by the Selection Committee as per Annexure A8 notification and State have no say in the matter of selection, W.P.(C)No.28906 of 2009 9 which is exclusively within the domain of the Central Government and the Selection Committee of the UPSC. 11. The 2[nd] respondent Union of India contended that, the matter of inclusion of the name of the applicant in the select list for 2007 by ousting the 5[th] respondent is beyond any comprehensions. The 5[th] respondent was senior to the applicant and he was finally appointed to IPS Cadre after his acquittal of the charges and the UPSC declaring his inclusion in the select list 'unconditional'. 12. The 3[rd] respondent UPSC and the 4[th] respondent Selection Committee contended that, the applicant was considered for promotion and thus his right for consideration for promotion has not been hampered. Further, appointment by promotion to IPS Cadre cannot be claimed as a matter of right. In terms of sub-regulation (4) of Regulation 5 of the Promotion Regulations, the Selection Committee is authorised to grade the eligible officers on the basis of overall assessment of their service records/ACRs and the power of the Selection Committee to make W.P.(C)No.28906 of 2009 10 independent assessment of ACR's has been upheld by the Apex Court in a number of cases. The selection in the instant case was carried out by the Selection Committee strictly in accordance with sub-regulations (4) and (5) of Regulation 5 of the Promotion Regulations. All the officers in the zone of consideration for the three vacancies available for the year 2007 were considered and assessed by the Selection Committee in accordance with subregulation (4) of Regulation 5 and a list of officers found suitable for promotion to IPS Kerala Cadre was prepared by the Selection Committee on the basis of the merit assessed from the service records of the officers in the zone of consideration. Thereafter, they were placed in the select list in the order of their seniority in the State Police Service. Therefore, the 3[rd] and 4[th] respondents contended that, there is absolutely no legal infirmity in the preparation of select list by the Selection Committee. 13. The 5[th] respondent contended that, he is both senior and sufficiently meritorious, as required by the relevant rules. Accordingly his name figures at Sl.No.1 in Annexure A8 select W.P.(C)No.28906 of 2009 11 list. Though, initially, he was kept under suspension from 25.2.2001 to 20.11.2003 pending Vigilance Case No.1/2001, he was acquitted in the criminal case by the Special Judge, Thiruvananthapuram. In respect of another case, namely, C.C.No.523/2000, he was acquitted by the judgment dated 27.8.2008. It was after such acquittal that, the 1[st] respondent State forwarded the proposal to declare inclusion of the name of the 5[th] respondent in the select list as 'unconditional', as per the second proviso to sub-regulation (4) of Regulation 7 of the Promotion Regulations. Accordingly, the Commission declared the provisional inclusion of the name of the 5[th] respondent as unconditional and final. 14. The 7[th] respondent contended that, there were no adverse entries in his ACRs, no departmental proceedings were contemplated/pending against him and no vigilance case was registered against him. There were about 40 Good Service Entries in his credit and as per seniority his name stood included in the field of choice for consideration at Sl.No.8. The inclusion of his W.P.(C)No.28906 of 2009 12 name in the select list at Sl.No.3 by the Selection Committee is perfectly legal. 15. The Tribunal after considering the rival contentions arrived at a conclusion that, the selection and promotion of respondents 5 to 7 to IPS Kerala Cadre is made strictly in accordance with the Promotion Regulations and as such no interference is warranted. The Tribunal has also found that, though the applicant alleged malafides in the selection process, he could not substantiate the said allegation. On a finding that the applicant's right to be considered for selection has been fully protected in the selection procedure adopted by the Selection Committee, the Tribunal dismissed the O.A. by Ext.P12 order. 16. The petitioner/applicant mainly contended that, the action of the Selection Committee in not grading him as 'outstanding' on the basis of the grading in his ACRs for 5 years preceding the year 2007 is per se arbitrary, illegal and even contrary to the provisions under the Promotion Regulations and also the guidelines governing the field. According to the W.P.(C)No.28906 of 2009 13 applicant, the Selection Committee selected respondents 5 to 7, who are less meritorious candidates going by the grading in their ACRs, overlooking his better claim. 17. Regulation 5 of the Promotion Regulations deals with preparation of a list of suitable officers. As per sub-regulation (4) of Regulation 5, the Selection Committee shall classify the eligible officers as 'outstanding', 'very good', 'good' and 'unfit' as the case may be on an overall relative assessment of their service records. Going by sub-regulation (5) of Regulation 5, the Selection Committee shall prepare the list of suitable officers by including the required number of names first from amongst the officers finally classified as 'outstanding' and 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 Police Service. The first proviso to sub-regulation (5) of Regulation 5 provides that, the name of an officer so included in the list shall be treated as provisional if the State Government W.P.(C)No.28906 of 2009 14 withholds the integrity certificate in respect of such an officer or any proceedings, departmental or criminal are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government. 18. Regulation 6 of the Promotion Regulations deals with consultation with the UPSC. As per Regulation 6, the list prepared in accordance with Regulation 5 shall be forwarded to the UPSC by the State Government along with the records of all members of the State Police Service included in the list; the records of all members of the State Police Service who are proposed to be superceded by the recommendations made in the list; and the observations of the State Government on the recommendations of the Selection Committee. Going by Regulation 6(A), the State Government shall also forward a copy of the list referred to above to the Central Government and the Central Government shall send their observations on the recommendations of the Selection Committee to the UPSC. W.P.(C)No.28906 of 2009 15 19. Regulation 7 of the Promotion Regulations deals with Select List. As per sub-regulation (1) of Regulation 7, the UPSC shall consider the list prepared by the Selection Committee along with the documents received from the State Government under Regulation 6, and the observations of the Central Government. The UPSC, unless it considers any change necessary, shall approve the list. As per sub-regulation (3) of Regulation 7, the list as finally approved by the UPSC shall form the select list of the members of the State Police Service. Going by the first proviso to sub-regulation (3), if an officer whose name is included in the select list is, after such inclusion, issued with a charge sheet or a charge sheet is filed against him in a Court of Law, his name in the select list shall be deemed to be provisional. As per sub-regulation (4) of Regulation 7, the select list shall remain in force till 31[st] 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 (1) of regulation 5 or upto sixty days from W.P.(C)No.28906 of 2009 16 the date of approval of the select list by the UPSC under subregulation (1) or, as the case may be, finally approved under sub-regulation (2), whichever is later. Going by the second proviso to sub-regulation (4) of Regulation 7, where the State Government has forwarded the proposal to declare a provisionally included officer in the select list as 'unconditional', to the UPSC during the period when the select list was in force, the Commission shall decide the matter within a period of forty five days or before the date of meeting of the next Selection Committee, whichever is earlier and if the Commission declares the inclusion of the provisionally included officer in the select list as unconditional and final, the appointment of the concerned officer shall be considered by the Central Government under Regulation 9 and such appointment shall not be invalid merely for the reason that it was made after the select list ceased to be in force. 20. Annexure A11 guidelines deals with the guidelines/procedures for categorisation of State Civil/Police/ W.P.(C)No.28906 of 2009 17 Forest service officers and preparation of list of suitable officers for promotion to IAS/IPS/IFS in terms of sub-regulations (4) and (5) of Regulations 5 of the Promotion Regulations. Though the term 'service records' has not been defined in the Promotion Regulations, Para.2.3 of Annexure A11 guidelines prescribes what 'service records' would mean and signify in the context of subregulation (4) of Regulation 5 of the Promotion Regulations. As per Para.2.3 of Annexure A11 guidelines, in accordance with subregulation (4) of Regulation 5 of the Promotion Regulations, the Selection Committee has to classify the eligible officers as 'outstanding', 'very good', 'good' or 'unfit' as the case may be on an overall relative assessment of their service records (i.e., ACRs and the documents kept therein by the competent authority). For making an overall relative assessment, the Committee will not depend solely on the grading recorded by the reporting/ reviewing/accepting authority but will make its independent assessment of the service records of the eligible officers as per the procedure indicated in the guidelines. W.P.(C)No.28906 of 2009 18 21. As per para.3.1 of Annexure A11 guidelines, the Selection Committee shall go through the service records of each of eligible officers, with special reference to the performance of the officer during the last five years preceding the year for which the select list is prepared and after deliberation shall record its assessment in the assessment sheet comprising the Assessment Matrix and the column for Overall Assessment of the officers. 22. The general procedure for filling up the Assessment Matrix is provided under para.4.1 and 4.2 of the guidelines. Para.4.1 provides that, the Selection Committee will go through the records of the eligible officers and make their assessment after 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 finally arrive at the classification to be assigned to each officer. The Selection Committee would take into account orders regarding appreciation for the meritorious work done by the W.P.(C)No.28906 of 2009 19 concerned officers. Similarly it would also keep 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. Para 4.2 provides further that, the Selection Committee would not be guided merely by the overall grading, if any, that may be recorded in the ACRs but would make its own assessment on the basis of the entries in the ACRs because some times the overall grading in an ACR may be inconsistent with the grading under various parameters and attributes. Further, if the Reviewing Authority or the Accepting Authority, as the case may be, has differed from the assessment made by the Reporting Officer or the Reviewing Authority, as the case may be, the remarks of the latter authority should be taken as the final remarks for the purpose of assessment provided it is apparent from the relevant entries that the higher authority has come to a different assessment consciously after due application of mind. If the remarks of the Reporting Officer, Reviewing Authority are complementary to each other and does not have W.P.(C)No.28906 of 2009 20 the effect of overruling the other, then the remarks should be read together and final assessment made by the Selection Committee as indicated in para.4.1. 23. From what is embodied in paragraph 2.3 of Annexure A11 guidelines, it transpires that the term 'service records' would include not only the ACRs of the candidates, but also the documents kept in connection therewith by the competent authority. The Selection Committee constituted under Regulation 3 of the Promotion Regulations, in order to make overall relative assessment, will not depend solely on the grading recorded by the reporting/reviewing/accepting authority, but will make an independent assessment of the service records of the eligible officers as per the procedure prescribed in Annexure A11 guidelines with special reference to their performance during the relevant period and, upon deliberations, make its own assessment of the candidate and record, in the assessment sheet, the gradings, which it considers as appropriate, in terms of sub-regulation (4) of Regulation 5 of the Promotion Regulations. W.P.(C)No.28906 of 2009 21 24. The term ‘deliberation’, according to Oxford Advanced Learner’s Dictionary, 8[th] Edition, means, ‘the process of carefully considering’ or ‘discussing’. In the light of what the word ‘deliberation’ means and convey in order to satisfy the test of ‘overall relative assessment’ as contemplated in Annexure A11 guidelines, there should be a careful consideration or weighing in mind on the quality of the officers concerned with regard the various attributes recorded in their respective ACRs. As such, the deliberation should precede the assigning of grade by the Selection Committee. 25. Para.4.4 of Annexure A11 guidelines, which deals with overall assessment/categorisation of officers, reads thus:- 4.4. While finalising the Overall Assessment of the officers [para.3.1 above refers], an officer shall be graded as: A. 'Outstanding', if in the opinion of the Selection Committee, the service records of the officer reflect that he is of outstanding merit possessing exceptional attributes and abilities and these characteristics are reflected in at least four of the ACRs for the last five years including the ACR for the last year (i.e. upto the preceding year for which the Select List is prepared). While grading an officer W.P.(C)No.28906 of 2009 22 as 'Outstanding', the following indicative guidelines would be observed. - (i) Whilst the overall grading in the ACRs will have its relevance, however, in order to have a final view, it will be essential to carefully peruse and assess all the individual attributes/columns in the ACRs like, Work Performance, Targets Achieved, Supervision, Managerial capabilities, personally traits etc. before the Committee decides to grade an officer as 'Outstanding'. - (ii) Thus, there should be an in-depth analysis of the performance of the officer before he is rated as 'Outstanding'. There should also be consistency in the grading given by different Committees in different years. - (iii) Considering the fact that such 'Outstanding' officers are going to supersede other officers, there is a greater need to ensure that such an officer has met the stringent norms of being graded as 'Outstanding'. For such purposes, the ACRs of the concerned officer should elaborate his significant achievements or exceptional nature of work in the areas of law and order, disaster management, implementation of developmental schemes, etc. - (iv) Postings are not within the competence of an W.P.(C)No.28906 of 2009 23 officer for which he ought not to be discriminated. However, the Committee may also like to examine the various positions that such 'Outstanding' officers have occupied and the nature of duties performed by him over the years in the process of assessing the officer. B. “Very Good”, if in the opinion of the Selection Committee, his ACRs reflect that the officer has done highly meritorious work and possesses positive attributes and these characteristics are reflected in at least three of the last five ACRs (i.e. upto the preceding year for which the Select List is prepared). C. “Good” if in the opinion of the Selection Committee, the service records reflect that the officer's performance is generally satisfactory and he is considered fit for promotion and those characteristics are reflected in at least three of the last five ACRs (i.e. upto the preceding year for which the Select List is prepared). D. An officer may be categorized as “Unfit” if his reports are lacking any positive merit or whose performance is not generally satisfactory or if there are entries in some of the latest ACRs which adversely reflect on his suitability for promotion or if the ACRs contain orders of penalty which in the opinion of the Selection Committee would render the officer unsuitable for promotion.” W.P.(C)No.28906 of 2009 24 26. As evident from para.4.4, while finalising the overall assessment of the officers, an officer shall be graded as 'Outstanding', if in the opinion of the Selection Committee, the service records of the officer reflect that he is of outstanding merit possessing exceptional attributes and abilities and these characteristics are reflected in atleast 4 of the ACRs for the last 5 years including the ACR for the last year, (i.e., upto the preceding year for which the select list is prepared). While grading an officer as 'Outstanding' the indicative guidelines under clauses (i) to (iv) of sub-para.A of para.4.4 should be observed. The said indicative guidelines mandate an indepth analysis by the Selection Committee of the performance of the officer, based on his service records, before he is rated as 'Outstanding', since such an outstanding officer is going to supersede other officers. 27. The provisions under the Promotion Regulations, namely, sub-regulation (4) of Regulation 5 and that under para.4.2 and 4.4 of Annexure A11 guidelines make it explicitly clear that, the Selection Committee has to classify the eligible W.P.(C)No.28906 of 2009 25 officers as Outstanding, Very Good, etc. on an overall relative assessment of their service records and not merely on their overall grading recorded in the ACRs. Therefore, the contentions raised by the applicant, merely relying on the grading in the ACRs were rightly rejected by the Tribunal. Further, the applicant could not point out any illegality or irregularity in the inclusion of the name of the 5[th] respondent in the select list as 'unconditional' in terms of the second proviso to sub-regulation (4) of Regulation 7 of the Promotion Regulations. Though in the O.A. the applicant sought for a declaration that, Regulation 6 of the Promotion Regulations is unconstitutional, ultra vires and void, a reading of Ext.P12 order would show that such a contention was never raised before the Tribunal. In such circumstances, the applicant cannot be permitted to raise that contention in this Writ Petition filed under Article 227 of the Constitution of India invoking supervisory jurisdiction of this Court. 28. In **Union Public Service Commission v. K.Rajaiah (2005 (10) SCC 15)** the Apex Court held that, the power to W.P.(C)No.28906 of 2009 26 classify an officer as 'Outstanding', 'Very Good', 'Good' and 'Unfit' is vested with the Selection Committee, which is a function incidental to the selection process. The classification given by the State Government Authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large guided by the classification adopted by the State Government, but for good reasons, the Selection Committee can evolve its own classification which may be variance with the gradation given in the ACRs. In **M.V.Thimmaiah v. Union Public Service Commission (2008 (2)SCC 119)** the Apex Court held that, it is always within the power of the Selection Committee to record its own assessment about the selection, which may be at variance with that of the reporting officers or the reviewing officers. 29. In **Nutan Aravind v. Union of India (1996 (2) SCC 488)** the Apex Court held that, when a high level committee had considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, the court cannot sit over the assessment made by the Departmental W.P.(C)No.28906 of 2009 27 Promotion Committee as an appellate authority. In **Union Public Service Commission v. L.P.Tiwari (2006 (12) SCC** **317)** the Apex Court held that, the evaluation made by an expert committee should not be easily interfered with by the court, which do not have necessary expertise to undertake the exercise that is necessary for such purpose. In the said judgment, the Apex Court has also relied on the view expressed in its earlier decision in **Union Public Service Commission v. K.Rajaiah (2005 (10) SCC 15)** , in the context of the Regulations for appointment by promotion to the IPS Cadre. Later, in **Union of India v. S.K.Goel (2007 (14) SCC 641)** the Apex Court reiterated that, the Departmental Promotion Committee enjoys full discretion to device its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence the interference by the High Court is not called for. 30. In **Union of India v. A.K.Narula (2007 (11) SCC 10)** the Apex Court held that, the guidelines give a certain W.P.(C)No.28906 of 2009 28 amount of play in the joints to DPC by providing that it need not be guided by the overall grading recorded in Confidential Reports, but may make its own assessment on the basis of the entries in Confidential Reports. DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness, that the selection calls for interference. Where DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by DPC, the court will not interfere. 31. In **R.S.Dass v. Union of India (1986 (Supp) SCC 617)** the Apex Court, in the context of the provisions under Indian Administrative Service (Appointment by Promotion) Regulations, 1955 held that the said Regulations clearly provide for the selection of officers of the State Civil Service on merit, on the overall relative assessment of their service records. In the W.P.(C)No.28906 of 2009 29 process of preparing the select list if the seniors are not found suitable for promotion and their names are not included in the select list, and if juniors are found suitable for inclusion of their names in the Select List, the seniors stand superseded, as the selection is made on merit and not on the basis of seniority. 32. In **R.S.Dass case** (supra) the Apex Court held that, where Selection Committee is constituted by high ranking responsible officers presided over by Chairman or a Member of the Union Public Service Commission, there is no reason to hold that they would not act in fair and impartial manner in making selection. There are adequate checks and safeguards at different stages by different authorities. But, if any dispute arises with regard to the arbitrary exclusion of a senior member of the State Service the matter can always be investigated by perusing his service records and comparing the same with the service records of officers who may have been preferred and that would certainly disclose the reasons for the supersession of the senior officer. W.P.(C)No.28906 of 2009 30 33. In the instant case the applicant was admittedly junior to respondents 5 to 7. In the proposal list consisting of nine State Police Officers in the substantive cadre of Deputy Superintendent of Police forwarded to the 3[rd] respondent Selection Committee, the applicant was Sl.No.7, whereas, respondents 5 to 7 were included in the said list at Sl.Nos.3, 4 and 6 respectively. As borne out from Ext.P12 order, the Tribunal has called for and perused the assessment sheets, with a view to ascertain the actual grading of the officers concerned. The Tribunal found that, the 3[rd] respondent Selection Committee, following the guidelines, graded the applicant as well as respondents 5 to 7 uniformly as 'very good' and recommended the first three, i.e., respondents 5 to 7, for appointment, and in respect of the 5[th] respondent such a recommendation was made unconditionally only after the receipt of integrity certificate from the State Government. 34. A reading of Ext.P12 order passed by the Tribunal would show that, the contentions raised by the applicant were W.P.(C)No.28906 of 2009 31 mainly relying on the grading given to him and respondents 5 to 7 in their ACRs by the reporting/reviewing officers. After considering the said contentions, in the light of the law laid down by the Apex Court in various decisions, the Tribunal declined interference, in the absence of any arbitrariness or malafides pointed out in the selection process, which culminated in Annexure A8 the select list including the names of respondents 5 to 7. The reasoning of the Tribunal in this regard is neither perverse nor patently illegal, warranting an interference of this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. In the result, the Writ Petition fails and the same is accordingly dismissed. No order as to costs. ## Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- ## **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge