G. Mohanasundaram v. R. Nanthagopal

2. This appeal is directed against the judgment and order dated 8th July, 2013 passed by the Division Bench of the High Court of Judicature at Madras in Writ Petition No.5508 of

2013. Initially, the appellant herein challenged the Government notifications dated 10th February, 2012 and 13th April, 2012 whereby 1st respondent was promoted and appointed to the Indian Administrative Service, before the Central Administrative Tribunal, Madras Bench by filing OA No.249 of 2012 and the same was allowed by order dated 18th February,

2013. By the impugned judgment the High Court set aside the said order dated 18th February, 2013 passed by the Central Administrative Tribunal.

3. The factual matrix of the case is as follows: Page 2 The appellant and the 1st respondent are officers of Tamil Nadu State Civil Services. They were considered for promotion to the Indian Administrative Service (hereinafter referred to as the “IAS”) against certain percentage of posts available for members of the State Civil Service.

4. On 1st September, 2009, the State of Tamil Nadu prepared a list of 27 eligible candidates for consideration for appointment against 19 vacancies of IAS for the year 2009. The list was sent to the Secretary, Union Public Service Commission (hereinafter referred to as the “UPSC”). The name of the appellant was included at

┌──────────────────────────────────────────────────────────────────────────────────────┐
│           order:-                                                                    │
│             Sl.             Name of the Officer            Date of                   │
│            No.                   (Smt./Shri)                Birth                    │
├──────────────────────────────────────────────────────────────────────────────────────┤
│            1.             P. Senthilkumar (SC)           18.12.1957                  │
│            2.             V. Kalaiarasi                  29.03.1969                  │
│            3.             G. Govindaraj (SC)             26.04.1960                  │
│            4.             V. Mohanraj (SC)               22.01.1957                  │
│            5.*            R. Nanthagopal                 23.05.1964                  │
│            6.             N. Vankatachalam               29.04.1965                  │
│            7.             C. Manoharan (SC)              15.12.1955                  │
│              *The names at S.No.5 has been included in the list provisionally        │
│              subject to clearance in the disciplinary proceedings pending            │
│              against him and grant of integrity certificate by the State             │
│              Government.”                                                            │
│                                                                            Page 11   │
│       The name of the 1st respondent was included provisionally                      │
└──────────────────────────────────────────────────────────────────────────────────────┘

24. The appellant had challenged the action of State Government declaring an ACR invalid in absence of any valid reason. According to the learned counsel for the appellant, merely because an ACR has been written beyond the period of 9 months, it cannot be held to be invalid in absence of limitation prescribed under any rule or guideline.

25. On behalf of the State Government reliance has been placed on Government Order dated 4th April, 2007 issued by Personnel and Administrative Reforms (K) Department of State of Tamil Nadu. The Government issued guidelines with respect to writing of the Annual Confidential Report by the said Government Order. The relevant portion of the said order reads as follows: “6.The Government have examined the above issue afresh and in supersession of all the existing instructions the following fresh instructions are issued in respect of writing of confidential reports by the Reporting Officers whenever they are demitting office either on transfer or for other reasons in the middle of the year. The following instructions are to be followed scrupulously. “Whenever the Reporting Officers are to relinquish charge on transfer or for other reasons, they should write the confidential reports in respect of all his subordinate officers and the handling over charge report should accompany a certificate to his higher officer that he had completely written the confidential reports on all his subordinate officers. However, it it is not possible to adhere to the above procedure, due to administrative reasons, he may take a reasonable time to write Page 13 confidential reports but this time limit should not ordinarily exceed 90 days from the date of his demitting office.”

26. In the guidelines issued by the State Government, there is nothing to declare any Annual Confidential Report invalid. The period of 90 days prescribed therein is not mandatory but directory. The 90 days period is also to be counted from the date of demitting office by the officer who writes the A.C.R.

27. In view of the discussion above, we hold that in terms of Regulation 5(4) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 it was incumbent upon State Government to forward complete service records of all the eligible candidates including the 1st respondent to the UPSC for considering them for promotion to IAS cadre. Withholding of ACRs of the year 2003-2009 of the 1st respondent on a wrong presumption that they were invalid, is illegal and fatal in the case of 1st respondent towards his appointment to the post of Indian Administrative Service. The aforesaid fact though came to the notice of the UPSC which sought clarification from the Government of Tamil Nadu, the State Government misled the UPSC which resulted in wrong assessment of service records of 1st respondent in violation of Regulation 5(4) read with Regulation 6 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955. Page 14

28. The Central Administrative Tribunal by its judgment dated 18th February, 2013 rightly held that the Selection Committee has not taken into account all relevant facts and records to come to a conclusion that the 1st respondent is superior to appellant.

29. The Central Administrative Tribunal also considered the issue of departmental proceedings pending against the 1st respondent under Rule 17(b) of the Tamil Nadu Service (Discipline and Appeal) Rules, was noticed by the Selection Committee as apparent from recommendation of the name of 1st respondent with a star mark shown against the same with a note that in view of the pendency of the departmental proceedings inclusion of the name of 1st respondent was provisional. In the said departmental proceedings Enquiry Officer after going through the evidence and reply submitted by the 1st respondent held that the charge No.2 is proved against the 1st respondent. In spite of the same, the State Government dropped the charges.

30. The Tribunal noticed that the State Government dropped the charges against the 1st respondent without giving detailed reasons for such action. Considering the same the Tribunal held that the State Government failed to furnish the valid reasons for dropping charges and for subsequent issuance of integrity certificate to the 1st respondent. For the said reason the Tribunal held that the action on the part of the State is a case of hasty decision. Page 15

31. The High Court failed to appreciate the guidelines dated 4th April, 2007 issued by the State Government with regard to the ACR and wrongly accepted the stand of the respondents that invalid ACRs were not to be considered. The High Court also exceeded its jurisdiction in discussing the charges framed against the 1st respondent and in justifying the grounds for dropping the charges, though it was not disclosed by the State Government.

32. For the reasons aforesaid, we set aside the impugned judgment and order dated 8th July, 2013 passed by the High Court in Writ Petition No.5508 of 2013, upheld the order passed by the Central Administrative Tribunal dated 18th February, 2013 with direction to the respondent(s) to reconsider the name of the appellant viz-a-viz 1st respondent for promotion to the post of Indian Administrative Service against the vacancies for the year 2009A. If necessary, a fresh Selection Committee or a Review Committee shall be constituted and reconvened. The process of selection be completed within three months. The order passed by the Tribunal stands modified to the extent above.