http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

PETITIONER:

STATE OF RAJASTHAN

Vs.

RESPONDENT:

SRIRAM VERMA & ANR

DATE OF JUDGMENT: 29/10/1996

BENCH:

B.P. JEEVAN REDDY, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:

Present:

Hon'ble Mr. Justice B.P. Jeevan Reddy

Hon'ble Mr. Justice K.S. Paripoornan

K.S. Bhati M.K. Singh and Ms. Musum, Advs. for the

appellant Sushil Kr. Jain and A.D. Dhamija, Advs. For

Respondents.

J U D G M E N T

The following Judgment of the Court was delivered :

B.P.JEEVAN REDDY,J.

Leave granted. Heard counsel for the parties.

The respondent, Sriram Verma, is an officer belonging

to the Rajasthan Administrative Service. By an order dated

March 24, 1991, thirteen officers were "selected and

appointed in senior pay-scale..... subject to review and

revision for the year 1980-91 as prescribed in the separate

list mentioned in Rule 28(B)(b)" of Rajasthan Administrative

Services Rules, 1954. Thirteen officers selected and

appointed under the said order were mentioned under two

categories separately. Nine of officers were mentioned under

the heading "On the basis of seniority and merit" and four

officers were mentioned under the heading "On the basis of

merit". Among the nine officers promoted on the basis of

seniority and merit, "Sri Ashok Kumar Sanvaria [Scheduled

Caste] was mentioned at Sr. No. 8.

The respondent, Sriram verma, who is also a member of

a Scheduled Castes preferred an appeal against the aforesaid

order before the Rajasthan Civil Services Appellate

Tribunal. He complained that his junior, Ashok Kumar

Sanvaria, has been promoted while he himself has been

overlooked wrongly. The learned advocate appearing for the

State of Rajasthan submitted before the Tribunal that an

enquiry was pending against the respondent under Rule 16 of

the Rajasthan Civil Services [Classifications Control and

Appeal] Rules, 1958 and also because the impugned promotions

were in the nature of urgent/temporary promotions, the

respondent therein was not promoted. The Tribunal allowed

the appeal preferred by the respondent holding that "a

perusal or the written reply filed by the Government does

not very clearly indicate whether the appellant's case for

promotion was considered by the D.P.C. or not"- The Tribunal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

observed that during the arguments, no doubt, the advocate

for the State did mention that an enquiry was pending

against the respondent but that assertion was squarely

denied by the respondent's counsel. The respondent's case

was that "on the date of D.P.C., there was no enquiry

pending against him". The Tribunal observed that it is not

clear whether the respondent's case for promotion was

considered by the D.P.C. or not. If an enquiry was pending

against him, the Tribunal observed his name should have been

kept in sealed cover after considering him and if no enquiry

was pending against him "then clear recommendations should

have been recorded by the D.P.C. in respect of the

appellant". The appeal was allowed accordingly and the

Government was directed to place the respondent's case for

promotion to the selection scale against the vacancies for

the year 1990-91 before the DPC. The DPC was directed to

record its clear recommendations about the respondent.

The order of the tribunal was challenged by the.

Government of Rajasthan before the High Court. The High

Court says that it sent for the record relating. to regular

selection by D.P.C. and then says: "We have got the record

and after going through the same, find that the name of

respondent No.1 was there before the D.P.C. but no reason

has been provided in the proceedings of the D.P.C. as to why

the respondent was not considered fit for promotion". The

High Court then referred to the submission of the counsel

for the State that where was an adverse entry against the

respondent. The High Court saw the entry but without

expressing any opinion whether it is really adverse or not,

observed: "We may say that when his name was considered by

the D.P.C., process of reasoning or application of mind had

to be indicated at the time D.P.C. meeting as to why he is

not being promoted or as his promotion is being withheld.

They did not say that they were withholding promotion on

account of adverse entry. This is the minimum requirment. A

which is being enunciated by courts from time to time and

this law is being observed in breach. The High Court added

further:

"Even before us, the learned

counsel for the State says that

D.P.C. do not give their reasons

when somebody is ignored or

withheld from promotion. This is

not the correct state of law.

D.P.C. is not to write a long

judgment but whatever occurs in

their mind to withhold promotion,

that must be indicated in the

proceedings of the D.P.C., so that

case the matter challenged before a

Court of law, the Court can see

what appealed to the mind of D.P.C.

for not giving promotion.

Copy of this order may be sent to

the Chief Secretary to the

Government of Rajasthan so that he

may be able to advise all

authorities and Departments keep

this in view while sitting in

D.P.C."

The learned counsel for the appellant-State submitted

that it is not obligatory upon the D.P.C. to record reasons

for not selecting an officer and/or for selecting a junior

while not selecting the senior. Counsel submitted that

unless the rules expressly so provide, no such obligation

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

can be deduced from the Rajasthan Administrative Services

Rules, 1954. Counsel submitted that the principles of

natural justice have no application to such selections.

Learned counsel relied upon the decision of this Court in

Sarat Kumar Das v. Vishwajit Patnaik [1995 Suppl.(1)

S.C.C.434] and the several decisions referred to therein.

Counsel for the respondent, however disputed the said

propositions and submitted that when a senior is ignored and

Junior is selected, it is obligatory upon the D.P.C. to

record reasons therefor. This requirement, the learned

counsel submitted, has to be inferred because the selection

is liable to be challenged in a court of law and unless

there is something on record to indicate the reasons for

ignoring a senior or for selecting a junior, the Court will

not be in a position to judge the fairness of selection.

Reliance is placed upon the decisions of this Court in State

Bank of India v. Kashinath Kher [AIR 1996 S.C.1328], Union

of India v. E.G.Nambudiri [1991 (3) SCC 38] and Union of

India v. N.P.Dhamania [1995 Suppl.(1) SCC 1].

Before dealing with the submissions, it is necessary to

record a statement made by the learned counsel for the

appellant-State. He stated that so far as the respondent is

concerned, no grievance survives on his part inasmuch as the

order of the Tribunal [as confirmed by the High Court] has

been implemented and the respondent has been given what was

due to him. The counsel stated that the State is not

interested in disturbing what is already given to the

respondent but that they only want a decision on the

proposition enunciated by the High Court that where a

seniors overlooked and a junior is selected, the selecting

authority must indicate the reason for doing so. The above

statement is recorded.

It must be noticed in the first instance that the

promotion to the selection scale is on a twin basis viz.,

seniority-cum-merit as well as merit. The case of the

respondent and his Junior, Sri Sanvaria, was considered on

the basis of seniority-cum-merit. the selection has been

made by the Departmental Promotion Committee constituted

according to rules. The question is whether the D.P.C. is

under an obligation to record reasons far selecting a junior

while ignoring a senior. The High Court has observed that

even though the selecting authority is not required to write

a long order giving reasons for not selecting a senior and

for selecting his junior, the proceedings of the D.P.C. must

indicate in some manner as to why a senior was ignored and

his junior was selected. The question is whether the High

Court is right in saying so?

With a view to clear the ground, we may mention that we

are not dealing with a case of initial appointment. We are

also not dealing with a case where promotion is exclusively

on the basis of merit. We are concerned with a case where

promotion is on the basis of seniority and merit i.e.,

seniority-cum-merit. It is in such a case that the question

is arising whether the selecting authority is required to

record reasons for not selecting a senior and for selecting

a Junior. In R.S.Dass v.Union of India [1986 Suppl. S.C.C.

617] the Bench comprising Sabyasachi Mukharji and

K.N.Singh, JJ. considered the amended Regulations 54 and 55

of the Indian Administrative Service (Appointment by

Promotion) Regulations, 1955. Prior to its amendment in 1977

the Regulation required that where it is proposed to

supersede any member of the State Service "the committee

shall record its reasons for the proposed supersession".

After the amendment, the Regulation requires the Selection

Committee to classify eligible officers as 'outstanding',

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

'very gaud', 'good' or 'unfit', as the case may be, on an

over-all consideration and assessment of their service

record. After such categorisation, the Committee has to

arrange the names of officers in the select list in

accordance with the procedure laid down in Regulation 55.

The Bench opined that the amended Regulation gave primacy

and that in such a case it may happen that a junior officer,

if categorised as outstanding' or 'very good' may supersede

his seniors. The Bench rejected the argument that in such a

situation, it is necessary to record reasons for superseding

a senior. The following observations of the Bench are

relevant.

"Learned counsel urged that reasons

if recorded ensure objectively and

impartiality. In the absence of

reasons the Committee may act in

arbitrary manner to supersede

senior officers which would

violative of Arts. 14 and 16 of the

Constitution. We find no merit in

the submission. Article 16 ensures

equality in matters relating to

appointment and promotion to an

office or post under the State. It

enjoins State not to practise

discrimination in matters relating

to appointment and promotion. A

member of the State Civil Service

eligible for selection for

promotion to the I.A.S. has right

to be considered along with others

for selection for promotion. If

eligible officers are considered on

merit, in an objective manner no

Government servant has any legal

right to insist for promotion nor

any such right is protected by the

Arts. 14 or 16 or the Constitution.

Article 16 does not insist that

reasons should be recorded for the

non-selection of member of a State

Service.

The Bench also rejected the argument that since the

Regulations do not lay down any guidelines for

categorisation of the officers as aforesaid, the

categorisation is bound to be arbitrary. It held that since

the categorisation is made objectively on the basis of the

service record of the officers, there is no room for any

arbitrariness. This decision was followed by another Bench

(M.P. Thakkar and N.D. Ojha, JJ.) in Union Public Service

Commission v. Hiranyalal Dev and others [1988 (2) S.C.C. 242

while considering identical provisions in I.P.S promotion

regulations. The Bench reiterated that it is not necessary

to record the reasons for not selecting a person who is

within the field of eligibility.

National institute of Mental Health and Neuro Sciences

v. Dr. K.Kalyana Raman and Others [1992 Suppl. (2) S.C.C.

481] was case concerning appointment to the post of

professor in the institute. It was held that in the absence

of any requirement in the Rules or Regulation obliging the

selection Committee to record reasons, no such requirement

can be inferred. It was held, following R.S. Dass, that

principles of natural justice are not attracted to such

situation and that recording the reasons was not necessary

requirement. In Major General I.P.S Dewan v. Union of India

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

and Others [1995 (3) S.C.C. 383], this Bench took the view

that unless the Rules so require, the Selection

Committee/Selection Board is not obliged to record reasons

why they are not selecting a particular person, as the case

may be. In Sarat Kumar Dash and Others v. Biswajit Patnaik

and Others [1995 Suppl. (1) S.C.C. 434] a Bench of this

Court (K. Ramaswamy and N.Venkatachala, JJ.) considered a

case where the promotion was on the basis of merit-cum-

suitability. The Public Service Commission adopted the

method of grading or categorisation, as it may be called,

and then made the selection. It was cantended that since the

reasons were not recorded by the P.S.C. for the

recommendations made by it, the selection was bad. This

contention was rejected following the decisions

aforementioned.

Now coming to the Rules applicable herein, the position

is this: Clauses (a) and (b) af sub-rule (11) of Rule 28-B

of the Rajasthan Administrative Service Rules, 1954 read

thus:

"(11)(a) The Committee shall

consider the cases of all

seniormost persons who are eligible

and qualified for promotion to the

class of posts concerned under

these rules and shall prepare a

list containing names of the

persons found suitable on the basis

of seniority-cum-merit and/or on

the basis of merit, as the case may

be, as per the criteria for

promotion laid down in these rules,

equal to the number of vacancies

determined under rule relating to

"Determination of vacancies" of

these rules. The list so prepared

on the basis of seniority-cum-merit

and/or on the basis of merit, as

the case may be, shall be arranged

in the order of seniority on the

category of pasts from which

selection is made.

(b) The Committee shall also

prepare a separate list on the

basis of seniority-cum-merit and/or

on the basis of merit, as the case

may be, as per the criteria far

promotion laid down in the rules,

containing names of persons equal

to the number of persons selected

in the list prepared under (a)

above to fill temporary or

permanent vacancies which may occur

subsequently. The list so prepared

on the basis of seniority-cum-merit

and/or on the basis of merit shall

be arranged in the order of

seniority in, the cotegory of posts

from which selection shall be made

Such a list shall be reviewed and

revised by the Departmental

promotion Committee that meets in

the subsequent year and that such

list shall remain in force till the

end of the last day or the next

year or till the Departmental

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

Promotion Committee meets?

whichever is earlier."

The clauses aforesaid neither provide for grading nor

do they require the recording of reasons for superseding a

senior. So far as the promotion on the basis of seniority-

cum-merit is concerned, lt only says that the Committee

shall consider the names of all senior and qualified persons

"and shall prepare a list containing names of the persons

found suitable on the basis Of seniority-cum-merit." After

preparation, such list, the officers included therein shall

be arranged in the order of inter se seniority obtaining in

the feeder post. In such a situation and when the promotion

is made by the Departmental Promotion Committees we find it

difficult to say either that ordinarily the D.F.C. should

record reasons for not selecting a senior (and selecting his

junior) or that at least the record should indicate some

reason therefor. It is one thing to say that such a course

is fair and desirable but lt is altogether a different thing

to say that such a course is obligatory or necessary in all

cases for in the latter event the Selections made are liable

to be set aside for not complying with the said requirement.

The High Court has pointed out that such selections are

likely to the challenged in Court of law and if no reason,

are recorded - or at least the record indicates the reason

for superseding a senior and selecting his junior, the Court

would not be in a position to consider the grievance

effectively and satisfactorily. This argument brings to our

mind the decision in Bhagat Raja v. Union of India Other

[A.I.R 1967 S.C. 1606 (C.B] but that was case where the

order questioned before the Court was a quasi-judicial

order. It is equally true that even in administrative

matters this Court has been, insisting upon the duty to Act

fairly which may sometimes require an apportunity of hearing

But having regard to the nature of function of selection

and taking into consideration the fact that the only right

of the government servant is a right to be considered and

not a right to promotion we do not think it possible to

infer the requirement of recording reasons in all

situations. At the same time, we think that it is always

desirable that procedure adopted selecting body should be

fair and such as to lend credence to the process; it should

be such as to inspire confidence in all concerned within the

practicable limits. From this point of view, it would be a

wholesome step for the Government of Rajasthan for that

matter, all governments to provide either by amendment of

Rules or by general instructions that in the Promotion on

the basis of merit or merit-cum-seniority/merit-cum-

suitablity, the selecting authority should follow the method

of grading all the candidates appearing before them. This

requirement we are suggesting in cases where the Rules do

not provide for grading or for awarding marks or for

recording of reason for over-looking a senior; where,

however, the Rules already provide for awarding of marks or

any other appropriate method, our suggestion may not be

applicable. It must also be understood clearly that ours is

a suggestion to avoid complaints of arbitrariness and

primarily with a view to make the process credible. The

governments shall keep this underlying object in mind and

cause appropriate amendments or issue appropriate

instructions. It is obvious that any such

amendments/instructions shall have only prospective

operation.

For the above reasons, the appeal is allowed. The

order of the High Court that of the Rajasthan Civil Service

Appellate Tribunal impugned herein are set aside. But as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7

recorded hereinabove, this order shall in no manner affect

the first respondent, or for that matter, the second

respondent. There shall be no order to costs.

Copies of this order shall be sent to all the Chief

Secretaries of Stato Governments and Union Territories as

well as to the Secretary, Ministry of Home Affairs,

Government of India.