Our story today, borne out of a latest judgment of Supreme Court, has shades from the contents of the above paragraph. Read on -

The Prelude :-

The appellant is an IAS officer of the '67 batch. In 1982, he was promoted to the Super Time Scale. In September 1996, the appellant was considered for empanellment as Additional Secretary to the Government of India ( hereinafter referred to as the 'said panel') , but was not empanelled. The appellant made several representations against his exclusion from the above said panel stating that he was not empanelled on the basis of wrong appreciation of the character rolls and ACRs, which had not been recorded in accordance with the All India Service (Confidential Rolls) Rules, 1970. Though his case was reviewed at a later date, his representations were not placed before the Special Committee of Secretaries (SCoS) and the Appointments Committee of the Cabinet (ACC) and he was not empanelled. The appellant also submitted a memorial to the President for review of his case for empanellment but got no relief.

Round One -

The appellant approached CAT, Lucknow alleging that that the failure of the authorities to include him in the said panel was illegal on several grounds including mala fides on the part of some of the reporting officers. He also sought a direction from the Tribunal to the authorities for streamlining the system of recording annual confidential reports (ACRs) and to make the procedure for empanellment objective, fair and transparent .

In its interim Order dated 24.2.1998, CAT directed that further empanellment and postings of 1967 and 1968 batch IAS officers junior to the appellant shall be subject to the decision of the Original Application made by the appellant. On 15.09.1998, the appellant sought an amendment for amending the relief clause in his Original Application before CAT and prayed for a direction to reconsider his case for the above referred empanellment and also to consider him for empanellment as Secretary to the Government of India. These amendments were allowed. The appellant sent another representation-dated 1.5.1999, to the Cabinet Secretary to decide his earlier memorial addressed to the President and to give him justice by empanellment as Secretary to the Government of India.

The Tribunal vide further interim order dated 12.5.1999, directed the authorities to complete the appellant's character roll (CR) and to take a decision on his representations before considering him for empanellment to the post of Secretary to the Government of India. On 29.7.1999, the Tribunal made a further direction that the appellant's representation dated 1.5.1999 should be decided before finalising the empanellment for the post of Secretary to the Government of India. On 31.8.1999, the Government of India informed the appellant that his CR had been completed and the ACR for 1993-94, about which he had some grievance, had been cancelled. The Government of India, however, declined to deal with and take action on his representations on the ground that the matter was sub judice before the Tribunal.

In September 1999, the SCoS met for empanellment for the post of Secretary to the Government of India and after considering his record, the appellant was not included in the panel. On 11.1.2000, the appellant made a statutory memorial to the President alleging that he had been wrongly excluded from the panel for the post of Secretary to the Government of India. However, he got no relief therefrom. Sometime in February 2000, the ACC met and accorded approval to the recommendations made by the SCoS for the panel of 1967 batch for the post of Secretary to the Government of India. Again on 7.3.2000, the appellant sent another memorial to the President against his exclusion from the panel of the post of Secretary to the Government of India while two other officers junior to him, and allegedly of lesser merit, had been empanelled. The stage was now set for the Tribunals Order.

Final Order of CAT.

The Tribunal dismissed the Original Application of the appellant holding that :-

• The post of Additional Secretary to the Government of India or Secretary to the Government of India was not a promotional post for an all-India Services' officer of State Cadre.
  
• Most of the contentions urged, which proceeded on the footing that the empanellment to the post of Additional Secretary to the Government of India or the Secretary to the Government of India was a promotional post, were irrelevant.
• Once the appellant was considered for empanellment for the post of Secretary to the Government of India, as he had become eligible for such consideration, there was no point in directing the respondent authorities to consider his case for empanellment for the post of Additional Secretary to the Government of India.
  
• The posts of Additional Secretary and Secretary to the Government of India were very high and responsible posts for which only officers with outstanding entries in the ACRs and excellent recommendations should be considered.
  
• The SCoS had taken into consideration the change made in the ACR
  
• consequent to the direction to the Tribunal and it had considered the empanellment of the appellant for the post of Secretary to the Government of India after the representation dated 1.5.1999 had been decided.

Summing up, The Tribunal declined the challenge made by the appellant to the Constitution and validity of the Central Staffing Scheme and also dismissed the allegations of mala fides and arbitrations in not considering the appellant for empanellment.

The next forum :-

Aggrieved, the appellant approached the High Court. Deciding the matter, the High Court declined to entertain and enter into the contention that the Central Staffing Scheme was violative of the provisions of the Constitution of India. Going through the facts and circumstances of the case, High Court held that: -

• All relevant papers including the representations made by the appellant, appreciation letters written in his favour and the memorials made by him against downgraded entries and outstanding entries should have been placed by the authorities before the SCoS which should have applied its free and independent mind to arrive at the best possible conclusion for empanellment.
  
• The appellant's case may be considered afresh for empanellment as Additional Secretary/ Secretary to the Government of India by taking into consideration all relevant records as such his confidential report dossiers, letters of appreciation including memorials etc.

The High Court had thus partially allowed the petition of the appellant. The appellant, however, did not see 'justice' in the above Order or probably he could foresee the fate of the so called reconsideration of his representations. Hence the journey to Supreme Court.

Hon'ble Apex Court held that the points, which need consideration, are only the following :

I. Whether the Central Staffing Scheme is unconstitutional;

II. Whether para 14 of the Central Staffing Scheme is ultra virus Articles 309 and 312 of the Constitution of India;

III. Whether the post of Additional Secretary to the Government of India and above are promotional posts for IAS officers;

IV. Whether the appellant's non-empanellment to the above post is arbitrary and vitiated on account of mala fides, arbitrariness or violative of applicable rules.

THE SHOW DOWN :-

I. Constitutional validity of the Central Staffing Scheme

The appellant strongly urged that

• His case falls under the procedure prescribed in the Central Staffing Scheme, which is wholly unconstitutional and illegal.
  
• The service conditions of IAS officers are governed by the provisions of the All India Services Act, 1951 (AIS Act) and the Rules framed thereunder. It was not permissible for the Government of India to prescribe any procedure therefor other than by way of rules framed strictly in accordance with the AIS Act.
  
• No executive order made in respect of a matter under Article 309 or 312 could be inconsistent with the statutory rules framed under the AIS Act. The Central Staffing Scheme was neither the provision of any legislative enactment nor a supporting legislation framed under the AIS Act, and, therefore, to the extent of inconsistency with the said Act or the Rules framed thereunder, it was illegal.
  
• The judgment of Apex Court in G.K. Rao and others vs. S. Bhattacharya (1998) 4 SCC 189) and A.B. Krishna vs. State of Karnataka (1998) 3 SCC 495) was relied upon in favour.
  
• When the Central Staffing Scheme was formulated on 17.10.1957 it was clearly mentioned therein that it had been done "in consultation with the State Government and other authorities concerned.".This staffing scheme has been amended from time to time by resolutions of subsequent dates and the last one relevant and challenged was dated 5.1.1996.
  
• Section 3 of the AIS Act also requires consultation with the States for making of rules.
  
• The impugned Central Staffing Scheme contained in the OM dated 5.1.1996 does not, in terms, say that it has been issued after consultation with the State Governments. Hence, the contention is that it is ultra Virus Section 3 of the AIS Act.

And what Apex Court had to say :

• Section 3 is an enabling power of the Central Government to make Rules for the regulation of recruitment and the conditions of service for persons appointed to the all-India Services.
• This enabling power is hedged in with the requirement that before doing so there has to be consultation with the State Government concerned and every rule made in such fashion is to be placed before both the Houses of the Parliament as required by sub-section (2) thereof.
• It is not possible to accept the contention of the contention of the appellant that the Central Staffing Scheme is either a Rule or a Regulation within the meaning of Section 3 of the AIS Act, nor is it possible to accept that there is no other power available to the executive to deal with the recruitment and conditions of service otherwise than by a validly made rule under Section 3 of the AIS Act.
• It is now well established that the Central Government's executive power extends to the same subjects and to the same extent as that of the Parliament as long as it does not infringe any provision of any law made by the Parliament or of the Constitution.
• The judgment of Rai Sahib Ram Jawaya Kapur and others vs. The State of Punjab [AIR 1955 SC 549] was relied upon and it was held that the contention that the Central Staffing Scheme is unconstitutional cannot be accepted.

II. Constitutional validity of Para 14 of the Central Staffing

The appellant contended that

• Para 14 of the Central Staffing Scheme is ultra virus Articles 309 and 312 of the Constitution.
• Several Rules have been framed by the Central Government in exercise of its statutory powers under the AIS Act, 1951, i.e. Indian Administrative Service (Cadre) Rules, 1951; Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955: Indian Administrative Service (Pay) Rules, 1954; Indian Administrative Service (Regulation of Seniority) Rules, 1987; Indian Administrative Service (Probation) Rules, 1954 and that these Rules occupy the whole field of executive discretion, and, therefore, by the doctrine of occupied field there is no scope left for exercise of executive action outside the purview of these Rules.
• Para 14 of the Central Staffing Scheme leaves room for arbitrary executive action for want of clear cut guidelines.

And what Apex Court had to say :

• Each one of the above Rules referred to are intended to take care of a specific facet of the IAS.
• No set of these Rules is exhaustive by itself of all the service conditions applicable to the IAS.
• It is, therefore, incorrect to contend that the field of possible executive action is completely occupied by the statute or the statutory rules framed thereunder, deriving force from Article 309 read with article 312 of the Constitution of India.
• No specific provisions in these Rules have been shown which deal specifically with the subject to the procedure for selection of officers from the said cadre for the post of Additional Secretary / Secretary to the Government of India. This is a subject in respect of which the field does not appear to be occupied.
• Consequently, it was very much open to the executive to resort to executive instructions by way of an office memo for dealing with this subject. The contention, therefore, must fail.
• The contention that the para 14 of the Central Staffing Scheme leaves room for arbitrary executive action for want of clear cut guidelines has no merit. The guidelines indicated therein are sufficiently clear enough to steer clear of the charge of possible arbitrary use.

III. Whether the post of Additional Secretary to the Government of India and above are promotional posts for IAS officers;

The appellant contended that

• The post of Additional Secretary/ Secretary to the Government of India is a promotional post for IAS officers.
• Reliance was placed on the Apex Court judgments in Debesh Chandra Das vs. Union of India [AIR 1970 SC 77] and State of Mysore vs. Krishna Murthy (AIR 1973 SC 1146).

Apex Court considered the above case laws .

Revisiting the judgment of this Court in Debesh Chandra Das vs. Union of India ( supra), The Apex Court opined that

"This was a case of an IAS officer of the Assam cadre, who was appointed as Special Secretary to the Government of India, but later on reverted to Assam services, which resulted in reduction of his pay, and the other option given to him was to continue in Central Government service in a lower pay scale. This was considered to be a lower ranked post because as a Special Secretary at the Central Government services he was enjoying higher pay, emoluments and status. Being reverted to the State cadre, according to this Court, amounted to reversion to a lower post accompanied by a stigma, in the peculiar facts of the case, particularly when the appointment of the appellant as Special Secretary was for a tenure of 5 years and was terminated before expiry thereof. In these circumstances, this Court took the view that reverting the appellant-officer to the State cadre amounted to reversion with stigma, which required action in accordance with Article 311(2) of the Constitution and that not having been done, the action of reversion was held to be illegal. We notice that the Central Staffing Scheme was not even referred to or considered by the judgment. We are, therefore, unable to accept the contention that this judgment supports the proposition canvassed."

On the judgment of this Court in State of Mysore vs. Krishna Murthy (supra), the Hon'ble Apex Court viewed that

"This was a case where members of the same service belonging to the same cadre were treated differently for promotional purposes merely on the ground that they came from different streams. Hence, this judgment is of no relevance to us."

On the subject contention, Apex Court further held that

• Para 14 of the Central Staffing Scheme read in the light of the judgment of this Court in Union of India vs. Samar Singh (1996) 10 SCC 555), also suggests that appointment to the post of Additional Secretary/Secretary to the Government of India is not a promotion for a IAS officer.
• We are, therefore, unable to accept that empanellment of a State cadre officer for the post of Additional Secretary/Secretary to the Government of India is a promotion as contended.
• If the argument of the appellant is accepted, then an officer of the State cadre who is appointed to the Government of India can never be sent back to his State cadre, for the benefit of promotion once given cannot be withdrawn unless for extraordinary reasons.

IV. Whether the appellant's non-empanellment is vitiated

The appellant contended that

• No reasons have been given for his non-empanellment or for empanellment of officers junior to him.
• He has an outstanding service record, and therefore, his non-empanellment is arbitrary.
• His non-empanellment was the result of a mala fides.
• The remarks made in the ACR were not communicated to him.
• The Apex Court should direct the authorities to streamline the whole procedure so that even remarks like 'good' or 'very good' made in ACRs should be made compulsorily communicable to the officers concerned so that an officer may not lose his, chance of empanellment at a subsequent point of his service.

Supreme Courts words of wisdom on the above contentions of the appellant were :-

• Regarding non furnishing of reason for non empanellment

Relying upon the judgment of Union of India vs. Samar Singh (supra), which was a case of empanellment of an IAS officer under para 14 of the Central Staffing Scheme, it was held that no reason need to be given for non-empanellment of the said officer.

In the said case of Samar Singh (supra ) , the respondent contended that the committee constituted under the provisions of the Central Staffing Scheme had wrongly and unjustifiably not chosen the respondent for empanellment as Secretary to the Government of India. After referring to para 14 of the Central Staffing Scheme and the observations as to the limited nature of review for selection for appointment indicated in Dalpat Abasaheb Solunke vs. Dr. B.S. Mahajan (1990) 1 SCC 305), Jai Narain Misra (Dr) vs. State of Bihar (1971) 1 SCC 30) and Major General I.P.S. Dewan vs. Union of India (1995) 3 SCC 383), this Court observed in para 11 as under:-

"This would show that the Committee, keeping in view the record and experience including the conceptual and leadership abilities, achievements and potential for general management positions, had recommended 19 IAS officers for holding the post of Secretaries and 7 IAS officers for holding a non-secretarial post. Merely because the minutes of the Committee do not contain the reason for non-selection of the respondent does not mean that there has been no proper consideration of the merits and suitability of the respondent and as a result the selection is vitiated. From the minutes of the Special Committee it is evident that in the matter of empanellment of officers the Special Committee has taken into account the criteria that are laid down for holding such selection in para 14 of the Central Staffing Scheme and, therefore, it cannot be said that the said selection is vitiated on account of non-inclusion of the name of the respondent in the panel."

• Regarding outstanding service record and non - empanellment thereof :-

Apex Court opined that it has been reiterated in Samar Singh (supra) that merely because an officer has an outstanding service record there is no automatic empanellment and held that there in no merit in the contention that the non-empanellment is arbitrary.

After referring to para 14 of the Central Staffing Scheme, The Apex Court observed (vide para 12) as follows:

"Apart from the record there are other matters that have to be considered, namely, merit, competence, leadership and flair for participating in the policy-making process and the need of the Central Government which is the paramount consideration. We are unable to hold that since the performance of the respondent after his promotion as Additional Secretary had been found to be excellent and outstanding the non-inclusion of his name from the panel by the Special Committee must lead to the interference that there was no proper consideration of the merit and suitability of the respondent for empanellment by the Special Committee."

• On the malafide angle, Apex Court had the following to say :-

"When we repeatedly queried him as to what were the mala fides alleged before the Tribunal and the High Court, he contended that his ACRs had been left incomplete and his empanellment as Additional Secretary / Secretary to the Government of India was considered on the basis of incomplete ACRs. The appellant had made an application to the Tribunal that his empanellment should be considered only after the authorities are directed to complete his CR dossiers. As a matter of fact, the prayer made by the appellant was granted by the Tribunal and the authorities concerned were directed to complete the CR dossiers of the appellant and only thereafter to take a decision on empanellment. Thus, it is clear that the decision for empanellment for the post of Secretary was not based on incomplete ACRs.

The appellant then contended that some officers were biased against him and their assessment was vitiated by mala fides. When we asked him as to who the said officers, were, he named a former Cabinet Secretary, T.S.R. Subramanian, and certain other officers who had written his CR dossiers. The reasons for mala fides alleged by him are that he had seriously disagreed with some of the policy decisions taken by some of these officers, and therefore, they bore an animus against him. He also contended that the very officers who had written his downgraded entries. Later on were involved in some scandals. In our view, neither of these grounds hold any water. From the records we do not see any strong motive for any of the officers to bear animus against the appellant to ensure that he was not empanelled. Dissent is the essence of democracy and merely because one disagrees with another, one cannot jump to the conclusion that the other harbors a grudge against the former ."

• Regarding compulsory communication of remarks in the ACR to the concerned officers , Apex Court had the following words of advice :-

" In our view, it is not our function to issue such directions. It is for the Government to consider how to streamline the procedure for selection. We can only examine if the procedure for selection as adopted by the Government is unconstitutional or otherwise illegal or vitiated by arbitrariness and mala fides"

And so the final word of the Apex Court on the four contentious issues were as follows :_

"1. The provisions of the Central Staffing Scheme including para 14 thereto are not unconstitutional;

2. In view of the express provisions of para 14 of the Central Staffing Scheme, read in the light of the judgment of this Court in Samar Singh (supra), the appointment of State cadre IAS officers for the post of Additional Secretary/Secretary to the Government of India does not amount to promotion.

3. The non-empanellment of the appellant for the post of Additional Secretary / Secretary to the Government of India was neither arbitrary nor contrary to the Rules nor vitiated by mala fides as alleged."

And so finally, the Apex Court set aside that part of the impugned judgment of the High Court holding that the empanellment to the post of Additional Secretary/Secretary to the Government of India amounts to promotion and directing consideration of the appellant's case afresh for empanellment. The rest of the judgment of the High Court was maintained. The Appeal of the appellant was dismissed without order as to costs.

Before parting :-

On the question whether averse entries in confidential reports should be communicated to the employee, one view is that the 'unpleasantness' likely to be caused by the communication of adverse entries would tend to discourage the reporting officers from expressing their opinion freely and frankly; the opposite view is that failure to communicate adverse entries may enable unscrupulous reporting officers seriously to injure the prospects of an employee whom they dislike and that it is unfair to the employee to deny his promotion on account of defects of which he may well be unaware, and which he could have removed had he been informed of them.

Can you guess where the above has been extracted from ? A communiqué from the Ministry of Railways No. (E)55 CR 3/3 dated 09/08/55 .No typographical error this !! Yes , 51 years , later the above dilemma continues. By the way, what about the Governments decision to replace the present writing of Annual Confidential Reports (ACRs) of civil servants by Performance Appraisal Reports (PARs) for more objective evaluation of their work as decided after the recommendations of Hota Committee on Civil Service Reforms and other Committees. And just a reminder to what Minister of State for Personnel, Public Grievances and Pensions Hon'ble Shri Suresh Pachouri had to say about the same , "Performance Appraisal will also be utilised as a mechanism for career development and form a basis for promotions, empanellment and postings," Wishful thinking or early days yet !!!!

(See 2006-HRIOL-13-SC-SERVICE in ' LAWS 4 U')