JUDGMENT Jagdish Bhalla, J.
1. Aggrieved by non-inclusion of the name of the petitioner, who is a Member of Indian Administrative Services, in the panel for the Post of Additional Secretary and Secretary in the Government of India, petitioner filed Original Application No. 39 of 1998, before the Central Administrative Tribunal. Petitioner inter-alia also prayed therein; that the opposite parties may be directed to ignore the A.C. Rs. awarded to him for the years 1994-95, 1995-96 and 1996- 97, while considering him for empanelment as Secretary to the Government of India and the Union of India, and the Cabinet Secretary to the Government of India may also be directed to streamline the system of recording A.C. Rs of the Members of Indian Administrative Services.
2. Central Administrative Tribunal by the judgment and order dated 28.4.2000, rejected the O.A. No. 39 of 1998 on the grounds that it is not at all necessary to examine the shortcomings in the format of A.C.R. in Public Interest. Secondly, the relief claimed by the applicant can be well considered and examined in the light of Para 14 of the Scheme which provides that while due regard would be given to seniority, filling up of any specific post would be based on merit, competence and specific suitability of the Officer for a particular vacancy. Further, it is not at all necessary for the Committee to give details for inclusion and reasons for non-inclusion of names.
3. Petitioner has now approached this Court, questioning the correctness of the judgment and order dated 28.4.2000, inter-alia on the grounds that the Tribunal had not considered all the points and legal issues mentioned in the pleadings and, therefore, erred in law in holding that the post of Additional Secretary or Secretary to the Government of India, is not a promotional post; the Tribunal has also erred in holding that the prayer for empanelment to the post of Additional Secretary has been rendered infructous as the petitioner's case had been considered for the post of Secretary to the Government of India.
4. It appears that after appointment, of IAS Officers of 1966 Batch, the Government of India, considered the candidature for empanelment of IAS Officers of 1967 Batch for appointment to the posts of Additional Secretary and equivalent posts at the Centre. Thereafter, the Special Committee of Secretaries met on 13.9.1996 to consider the suitability of the IAS Officers of 1967 Batch for empanelment to hold the posts of Additional Secretary or equivalent posts at the Centre. After scrutinizing the ACRS upto 1993-94 of all the candidates including the petitioner and after screening the dossiers of the Officers included in the list and keeping in view the record and experience coupled with leadership ability, their achievements and their potential for general management positions, the Committee made its recommendations.
5. Special Committee of Secretaries comprising of the Cabinet Secretary, Principal Secretary to the Prime Minister, Home Secretary and Secretary (Personnel) did not find the petitioner suitable to hold a post at the level of Additional Secretary or any other equivalent post in the Government of India even after a review carried out on '12.12.1997 in respect of Officers, who were not empanelled in the year 1996. Appointments Committee of the Cabinet approved the recommendations made by the Special Committee of Secretaries. It may be added that only 52 Officers out of 118 eligible Officers of the 1967 Batch were found suitable for empanelment.
6. Before coming to the merits and de-merits of the case, it would be apt to mention, in short, the procedure for appointment of Officer for filling the posts at various levels in the Central Government which was/is being adopted by the Government, the procedure for writing confidential report and various Office Memorandum issued with regard to writing of confidential reports etc.
7. Sources of filling posts at various levels in the Central Government are; (1) Officers drawn from All India Services (2) Officers drawn from Organised Central Services Group "A" and (3) Central Secretariat Services. Officers belonging to All India Services are governed by the All India Services Act, 1951 (enacted under Article 312 of the Constitution) and the Rules and Regulations framed thereunder. Officers belonging to Organised Services are governed by a separate set of Recruitment Rules and Regulations framed for each of the services under Article 309 of the Constitution. Similarly, the Central Secretariat Services has also a separate set of Rules and Regulations framed under Article 309 of the Constitution.
8. Special Committee of Secretaries comprising the Cabinet Secretary, Principal Secretary to the Prime Minister, Home Secretary and Secretary (Personnel) considers the candidature of Officers for appointment to the post of the Additional Secretary or Special Secretary/Secretary to the Government of India and posts equivalent thereto. The recommendations of the Special Committee of Secretaries are put up for consideration and approval of the Appointments Committee of the Cabinet (ACC). Panels of suitable Officers are drawn up on an annual basis considering all Officers of a particular year of allotment from one service together as a group. Evaluation, of qualities such as merit, competence, leadership and a flair for participating in the policy making process is considered by the Committee.
9. Definition of Confidential Report, procedure to be adopted by Reviewing and Accepting Authority has been laid down in All India Services (Confidential Rolls) Rules, 1970. Rule 5, lays down that ordinarily confidential report regarding character, performance and qualities of an Officer shall be written within two months after closing of the year. Rules 5, runs as under :
"(1) A confidential report assessing the performances, character, conduct and qualities of every members of the Service shall be written for each financial year, or calendar year, as may be specified by the Government, [ordinarily within two months] of the close of the said year : [Provided that where a member of the Service is on deputation to an International Organisation, Confidential Reports in respect of such member may be written-
(i) for the entire period of his tenure with the said organisation even in case where the period of such tenure exceeds one year; or
(ii) for such shorter period as may be considered convenient or necessary by the reporting authority having regard to the circumstances of each, ordinarily within three months of the close of the said period.] [Provided further that Confidential Report may not be written in such cases as may be specified by the Central Government by General or Special Order.] (2) A Confidential Report shall also be written when either the Reporting Authority, or the member of the Service reported upon relinquishes charge of the post, and, in such a case, it shall be written at the time of the relinquishment of his charge of the post of immediately thereafter.
(3) Where more than one Confidential Reports are written on a member of the Service during the course of a financial year or a calendar year, as the case may be, each such report shall indicate the period to which it pertains.
(4) Where the Reporting Authority has not seen, and the Reviewing Authority has seen, the performance of a member of the Service for at least three months during the period for which the Confidential Report is to be written, the Confidential Report of any such member for any such period shall be written by the Reviewing Authority, and where, both the Reporting Authority and the Reviewing Authority have not seen, and the Accepting Authority has seen, the performance as aforesaid of any such member during any such period, the Confidential Report shall be written by the Accepting Authority.
(5) Where the Reporting Authority, the Reviewing Authority and the Accepting Authority have not seen the performance of a member of the Service for at least three months during the period for which the report is to be written, an entry to that effect shall be made in the Confidential Report for any such period by the Government.
(6) Notwithstanding anything contained in the Rules (1),(2), (4) and (5) it shall not be competent for the Reporting Authority, the Reviewing Authority or the Accepting Authority, as the case may be, to write a Confidential Report-
(a) where the authority writing the Confidential Report is a Government Servant, after he retires from service, and
(b) in other cases, after he demits office."
10. Rules 6 of the Rules, 1970 provides that the Reviewing Authority shall Review the Confidential Report generally in a month after it being recorded and also provides that the Reviewing Authority, or the Accepting Authority must have seen the performance of a Member at least for a period of three months before reviewing the Confidential Report. This rules also prohibits the Reviewing Authority or the Accepting Authority not to Review any Confidential Report in certain circumstances mentioned in sub-rule (4)(a) and (b). Rule 6-A, provides the function of the Accepting Authority and also lays down the certain conditions under which Accepting Authority shall not accept and countersign the Confidential Report. Rule 6 and 6-A, runs as follows :-
Review of the Confidential Report.-(1) The Confidential Report shall be reviewed by the Reviewing Authority ordinarily within one month of its being written.
Provided that this requirement may be dispensed with in such cases as may be specified by the Government, by General or Special Order.
(2) Where the Report is written by the Reviewing Authority under sub-rule (4) of Rule 5, or where the Reviewing Authority has not seen, and the Accepting Authority has seen, the performance of a member of the Service for at least three months during the period for which the Confidential Report is written, the Confidential Report of any such member for any such period shall be reviewed by the Accepting Authority, ordinarily within one month of its being written.
(3) It shall not be competent for the Reviewing Authority, or the Accepting Authority, as the case may be, to review any such Confidential Report unless it has seen the performance of the member of the Service for at least three months during the period for which the report has been written and in every such case an entry to that effect shall be made in the Confidential Report.
(4) Notwithstanding anything contained in sub-rules (1) and (2), it shall not be competent for the Reviewing Authority or the accepting authority, as the case may be, to review any such Confidential Report-
(a) where the Authority Reviewing the Confidential Report is a Government Servant, after he retires from service, and
(b) in other cases, after he demits office.
6-A. Acceptance of the Confidential Report.-(1) The Confidential Report after review, shall be accepted with such modifications as may- be considered necessary and countersigned, by the Accepting Authority, ordinarily within one month of its review.
Provided that this requirement may be dispensed with in such cases as may be specified by the Government by General or Special Order.
Provided further that where the Accepting Authority has not seen the performance of any member of the Service for at least three months during the period for which the Confidential Report has been written, it shall not be necessary for the Accepting Authority to accept any such report.
Note.--An entry to this effect shall be made in the Confidential Report.
(2) Notwithstanding anything contained in sub-rule (1), it shall not be competent for the Accepting Authority to accept and countersign any such Confidential Report-
(a) where the Accepting Authority is a Government Servant, after he retires from service, and
(b) in other cases, after he demits office.
11. Government of India on 5th January, 1996, issued a Office Memorandum in supersession of all other relevant orders popularly known as "Central Staffing Scheme" which lays down the procedure for selection and appointment of Officers to Secretarial Posts of and above the rank of Under Secretary to the Government of India and to certain important non-Secretariat Posts. Clause 14 provides that suitability of the Officers for appointment as Additional Secretary or Secretary to Government of India and other equivalent posts will be approved by the ACC on the basis of proposals submitted by the Cabinet Secretary. Clause 14 is reproduced hereinafter:
"Selection for inclusion on the panel of Officers adjudged suitable for appointment to the posts of Additional Secretary or Special Secretary/Secretary to the Government of India and posts equivalent thereto, will be approved by the ACC on the basis of proposals submitted by the Cabinet Secretary. In this task, the Cabinet Secretary may be assisted by a Special Committee of Secretaries for drawing up proposals for the consideration of ACC. As far as possible, panels of suitable Officers will be drawn up on an annual basis considering all officers of a particular year of allotment from one service together as a group. Inclusion in such panels will be through the process of strict selection and evaluation of such qualities as merit, competence, leadership and a flair for participating in the policy making process. Posts at these levels at the Centre filled according to the Central Staffing Scheme are not to be considered as posts for betterment of promotion prospects of any service. The needs of the Central Government would be the paramount consideration. While due regard would be given to seniority, filling up of any specific posts would by based on merit, competence and the specific suitability of the Officer for a particular vacant in the Central Government."
On 23rd September, 1985, a memorandum No. 21011/8/85-ESTT. (A) was issued, relevant portion of which runs as under :--
(3) It has been decided that a strict time schedule should be prescribed for various stages in the matter of writing of CRs and this time schedule should be adhered to by all the authorities concerned. The time schedule to be followed is given in the enclosed statement and it should be strictly complied with. Any failure on the part of the Reporting/Reviewing Officers to comply with the time schedule should be viewed seriously and in the absence of proper justification for such delay, the Officers Superior to the Reporting/Reviewing Officers can issue a written warning for the delay in completing the ACRs and place the warning in the ACR folder of the Reporting/Reviewing Officers concerned, [e.s.].
12. The main contention of the petitioner is that the petitioner has been wrongly assessed on incomplete and irregular character roll as about half a dozen ACRs/ appreciation letters favour to the petitioner were not in the character roll despite representations to this effect prior to process of empanelment. Further, both at the time of empanelment and review for Additional Secretary to Government of India the Committee gave undue weightage to palpably prejudicial and motivated assessment of some Reporting Officers in violation of the All India Services (Confidential Rolls) Rules, 1970 and the instructions issued by the Government of India in this behalf. The allegations made by the petitioner in Paragraph 12 of the writ petition read as under :-
"(i) For the period 1.4.1986 to 14.9.86 the assessment of the Reporting and Accepting Officers for the previous year should have been taken as the same authorities continued but demitted office without recording assessment. Instead, the motivated and unfair grading for September, 1986 to March, 1987, was taken for the entire year.
(ii) The grading given by Shri Shiromani Sharma Secretary M/o Textiles as Reporting Officer for 86-87 (Part), 87-88, 88-89, should have been seen and ignored in the light of the assessment of the other two Textile Secretaries (Sarvashri R.L. Mishra and R.K. Dar) for 89-90 and 90-91.
(iii) Likewise, the belated, prima facie, perfunctory and palpably motivated assessment of the Reporting Officer (Shri V.K, Saxena, who himself was not empanelled as even Joint Secretary in GOI) for 91-92 was given more weightage instead of the assessment of the Reviewing Officer, Minister of the State with independent charge.
(iv) That the ACR for 93-94 was wrongly kept in the CR and taken into consideration is evident from the fact that the GOI have now themselves cancelled it as mentioned in their letter dated 31.8.1999.
(v) When the GOI have themselves cancelled the ACR for 93-94 as invalid, the applicant could not be made to suffer for no fault of his. In all fairness, the assessment of the same Minister for the subsequent year 94-95 should have been taken as the grading for 93-94 also, as his appreciating letter covers both the period and the ACR for 93-94 originally written by him earlier on 7.2.95 as Accepting Authority was wrongly returned by the Appointment department of the respondent No. 4.
(vi) The belated under assessment of the Reporting Officer for 94-95 stood exposed and overruled by the ACR and appreciating letter of the Reviewing Authority and needed to be seen in the light of the cancellation of his assessment for 93-94 by the GOI.
(vii) The belated ACRs given by Shri B. Sahay (who himself could not be AS in GOI and against whom Lokayukta recommended CBI probe) for 94-95 and 96-97 recorded against the AIS (CR) Rules and the GOI instructions thereunder ought to have been ignored at the time of review for AS and empanelment for Secretary for the reasons mentioned in Para 13 of the rejoinder to the counter reply of the State Government and Para 14 to 16 of the SRA.
(viii) Likewise, the prima facie under assessments of the reporting and Accepting Authorities for the year 96-97 against the express provisions of AIS (CR) Rules 5(6) and 6-A(l) need to be viewed in the light of the letter dated 27.1.97 from the Governor (the Accepting Authority) himself to the then P.M.
(ix) Wherein he had lauded the excellent work done by the Food and Civil Supplies Department when the applicant was its Principal Secretary. It further corroborates the appreciation letter issued by the Advisor to the Governor who supervised applicant's work. Clearly, the ACR for 96-97, did not reflect the reality and could not be used to exclude the applicant from the panel."
13. Elaborating further, petitioner contended that undue weightage have been given by the Special Committee of Secretaries to the remarks given by the Reporting Officer which were in violation of the provisions of the All India Service Rules, and the instructions issued thereunder. Further, opposite party No. 2, personally knew the petitioner and therefore, he deliberately avoided to clarify the background of the lukewarm remarks given by the opposite party Nos. 5, 6 and one Shri B. Sahay to other Members of the Committee.
14. According to the petitioner, had the opposite parties given correct weightage to the ACRs', appreciation letters given by the Minister, Advisors to the Governor and the Governor, his career graph would have been different. Persons who are serving in Government of India as Additional Secretary have an edge over those in the State and while empanelment as Additional Secretary is not a precondition for being considered for Secretary's Post, it does prejudice the Special Committee of Secretaries and is viewed as a minus point. Therefore, non- empanelment of the petitioner has adversely affected his empanelment as Secretary. Further, even after upto date completion of Character Roll on the direction of the Tribunal, the respondents should have considered the case of the petitioner as Special Review in view of Para 11 of the Central Staffing Scheme.
15. Placing reliance upon the decisions rendered in U.P. Jal Nigam v. PC. Jain, (1996) 2 SCC (Sic) Nareshwar Lal Joshi v. State of Rajasthan, 1971 (1) SLR 1655, Snkhdeo v. Commissioner, Amravati Division, (1996) 5 SCC 103, the petitioner contended that ACRS which had come in the way of adjudging the suitability of the petitioner as Additional Secretary/Secretary and have the effect of damaging his career were not communicated as such the action of the respondents is violative of the principles of natural justice.
16. In U.P. Jal Nigam's case (supra), the Officer, namely, Sri P.C. Jain approached the Tribunal for correction of his downgraded entry, which was allowed by the Tribunal. Aggrieved by the correction order, the Jal Nigam approached the High Court with the plea that downgrading entries in confidential reports cannot be termed as adverse entries so as to obligate the Nigam to communicate the same to the employee and attract a representation. The High Court turned down this argument and held that the Confidential Reports were assets of an employee since they weight to his advantage at the promotional and extensional stage of service and gave an illustration that if an employee legitimately had earned an 'outstanding report in a particular year, which in a succeeding one and without his knowledge is reduced to the level of satisfactory without any communication to him, it would certain be adverse and affect him at one or the other stage of his career. The Supreme Court, while approving the judgment of the High Court, observed as under :-
"All that is required by the authority recording confidential in the situation is to record reasons for such downgrading on the personal file of the Officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing Annual Confidential Reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one-time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, not be reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true."
17. In Nareshwar Lal Joshi v. State of Rajasthan (supra), the High Court observed that lack of communication of adverse entries will necessarily result in the case of a Government Servant being not fairly considered by the Department Promotion Committee, one can certainly conceive of cases where lack of communication of such adverse entries may result in the case of a particular civil servant being not considered fairly.
18. Therefore, Lordships of the Supreme Court in Sukhdeo v. Commissioner, Amravati Division (supra), the Supreme Court observed as under :
"When an Officer makes the remarks he must eschew making vague remarks causing jeopardy to the service of the Subordinate Officer. He must bestow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the Subordinate Officer whose career prospect and service were in jeopardy."
19. Building his case further, the petitioner added that in view of the decision of Supreme Court in State Bank of India v. Kashinath Kher, 1992 (2) SCC 569, the Appointments Committee of Cabinet should have made independent assessment instead of accepting the recommendations of the Special Committee of Secretaries on face view without any cross verification. Their Lordships in Paragraph 16, held as under :-
"It would also appear from the record that the Confidential Reports submitted were adopting in toto by the Committee considering promotion without any cross verification from the character rolls or the record and independent assessment of merit and ability. That would also be clearly illegal. Being a Competent Authority to consider the claim of the candidates, the Committee for promotion has to independently, assess the merit and ability of each candidate from the reports and the records etc. consistent with the weightage prescribed in the rules and then to determine the relative merit and ability of officers and then to arrange order or merit of the officers for promotion. Being, Selection posts, the Selection Record also must indicates reasons, however, brief they may be, so that when tested by judicial review, the Court would be better assisted by the record to reach correct decision in law."
20. Apart from the cases indicated above, petitioner also cited several cases such as Dalpat Abasahed Sulunke and Ors. v. Dr. B.S. Mahaj and Ors.; S.A.H. Naqri v. State of A.P.; Ajit Singh and Ors. v. State of Punjab, 1999 (7) SCC 209; J.C. Jetli v. Union of India and Ors., 1988 (1) AIRLJ 667; Debesh Chandra Das v. Union of India, AIR 1970 SC 77; G. Biswal v. K.C. Mohanty, (1998) 4 SCC 447; Dhurva Lal Yadav v. Stale of U.P. and Ors., (1998) 1 UPLBEC ]381.
21. In the case of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors., it has been held by Hon'ble the Supreme Court :-
"As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. All that is required by the authority recording confidential in the situation is to record reasons for such downgrading on the personal file of the Officer concerned, and inform him of the change in the form of an advice, [e.s.]. If the variation warranted be not permissible, then the very purpose of writing Annual Confidential Reports would be frustrated.
Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one-time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, not be reflected in such variations, as otherwise they shall be communicated as such. It may be emphasized that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case, we have seen the Service Record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court."
22. In the case of Dalpat Abasahed Sulunke and Ors. (supra), it has been held as under :-
"The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved malafides affecting the selection."
23. In the case of Sukhdev v. Commr., Amravati Division, (supra), it has been held as under:
"In view of the above remarks made by the Officer, the conclusion reached is obviously incorrect and it is not in public interest. A man does not become poor in public image when his relationship with the public and subordinates is good and he is a man of integrity and honesty and he has got the satisfactory intelligence for discharging his duties and is fit for the promotion. How can in such circumstances his performance would be held unsatisfactory when he is capable for coordinating with subordinates and get the work done. How his technical ability is not satisfactory. The remarks are mutually inconsistent and reasons are self-evident of lack of bona fides in making these remarks. Under these circumstances, it could be characterized that the remarks were not bona fide made in public interest but, as a self-serving statement to weed him out from service.
It is settled law that when the Government resorts to compulsorily retire a Government Servant, the entire record of service, particularly, in the last period of service is required to be closely scrutinized and the power would be reasonably exercised. In State Bank of India v. Kashinath Kher, (JT at p. 578, Para 15), this Court has held that the Controlling Officer while writing Confidential and Character Roll Report, should be a Superior Officer higher above the cadre of the Officer whose Confidential Reports are written. Such Officer should show objectively, impartiality and fair assessment without any prejudice whatsoever with highest sense of responsibility to inculcate in the Officer's devotion to duty, honesty and integrity so as to improve excellence of the Individual Officer lest the Officers get demoralized which would be deleterious to the efficiency of public service. [e.s.]. In that case it was pointed out that Confidential Reports written and submitted by the Officer of the same cadre and adopted without any independent scrutiny and assessment by the committee was held to be illegal. In this case, the power exercised is legal and is not expected of from that High Responsible Officer who made the remarks. When an Officer makes the remarks he must eschew making vague remarks causing jeopardy to the service of the Subordinate Officer. He must, bestow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the Subordinate Officer whose career prospect and service were in jeopardy."
24. In the case of Dhurva Lal Yadav (supra), it has held as under :-
"When dispute is raised and attack is made on ground of arbitrariness unquestionably that decision was arrived objectively by the Selection Committee and not to harp on discretion and its exercise by the Committee. Unfortunately it was after filling of as many as 5 or 6 affidavits on directions issued by this Court from time to time to opposite parties that proper facts could be brought on record. When counter-affidavit in the main petition was filed it was stated that petitioner earned bad entry in 1975 and he was not found fit for promotion by the Selection Committee. Allegations that persons with worst record had been selected whereas he had been ignored was denied by giving evasive replies. In rejoinder-affidavit the petitioner successfully demolished explanation given by opposite parties. In the supplementary counter-affidavit filed in pursuance of direction by this Court the State came up with a plea that besides an adverse entry there was one complaint against petitioner sent by D.I.G. Police on 6th August, 1986. In absence of clear averment whether it was taken into account or not the opposite parties filed yet another supplementary- affidavit stating that radiogram sent by D.I.G. was placed before the Selection Committee was taken into account by it. This shifting stand is not very healthy and unnecessarily provides scopes for comment and criticism and creates a suspicion if procedure provided in law was adhered to or not" [e.s.].
25. In addition to above, several other cases on the above subject and have also been relied by the petitioner, which we do not think necessary to refer.
26. Confidential Reports are the assets of an employee since they weight to his advantage at the promotional and extensional stage of service. On account of fear of departmental action or damage in their character roll, they avoid to take bold decisions or decisions which are against the wishes of their Ministers or Senior Officers. Every Government Servant wants some sort of encouragement. Nobody wants to put in work when every day he is criticized and ridicules in public. In the present system the efficiency and incorruptibility of public administration of such importance that it is essential to afford to civil servants adequate protection against capricious action from their Superior Authority.
27. Considering the aforesaid facts and circumstances, we are of the view that all the relevant papers including the representations made by the petitioner, appreciation letters written in favour of the petitioner, memorials made by the petitioner against the downgraded entries, Outstanding entries recorded by the Reviewing Authority should have been placed by the authorities concerned before the Committee and the Committee, in turn, should have applied its free and independent mind to arrive at the best possible conclusion before recommending the case of the petitioner. It is not necessary to record reasons in all situation but at the same time, we think that it is always desirable that procedure adopted by the selecting body should be fair and such as to lend credence to the process and inspire confidence in all concerned within the practicable limits. Reliance is placed upon the decisions given in State of Rajasthan v. Sriram Verma and Anr., JT 1996 (9) SC 558 and S. Tripathi v. State of Gujarat, 1985 LAB IC 893.
28. We may add that a time has now come when the Members of Indian Services have to make effort to regain the confidence of the public and the past glory, which they are loosing day by day. They should make endeavour to preserve its stature, respect and regards, which they were enjoying decades ago. For the fault of a few, who have aligned themselves with political parties and making decision to please their bosses keeping law in a locked cupboard has resulted in exploitation of all. In running the administration of the country they should not be cowed down and have full confidence in its own existences so that its decision making process is not, any way affected. They must feel independent and keep themselves in excellent frame of mind and should not be hesitant even in taking bold decision which they have to take in the interest of administration. We are reminded of the words said by Sardar Vallabhbhai J. Patel :-
".....Today, my Secretary can write a note opposed to my views. I have given them freedom, to all my Secretaries. I, have told them, if you do not give your honest opinion for fear that it will displease your Minister, please then you had better go. I will bring another Secretary." I will never be displeased over a frank expression of opinion. That is what the Britishers were doing with the Britishers."
Sardar Vallabhbhai J. Patel further said :-
"If you want an efficient all India Service, I advise you to allow the services to open their mouth freely. If you are a Premier it would be your duty to allow Your Secretary, or Chief Secretary, or other services working under you, to express their opinion without fear or favour."
29. With regard to the contention of the petitioner that the Tribunal wrongly held that since the petitioner's case has been considered for the post of Secretary to the Government of India, his prayer for empanelment to the Post of Additional Secretary has become infructous, it is stated by the learned Counsel for the respondent that non-empanelment at the level of Additional Secretary did not come in the way empanelment of the petitioner for holding post at the level of Secretary to the Government of India. In this behalf the averments made in the affidavit of Shri V.K. Cherian, Deputy Secretary dated 13.9.2000 in reply to Paras 9(a) to (d) of the petitioner's affidavit are being reproduced herein below :
"Paras 9(a) to (d) The contents of Paras 9(a) to (d) as stated are not admitted to be true. The case of the petitioner for empanelment at the level of the Addl. Secretary to the Government of India was considered at the appropriate time and he was not found suitable and accordingly he was not empanelled. At present there is no case for considering him for empanelment at the level of Addl. Secretary to the Government of India because he has been considered for empanelment alongwith his batch mates for appointment to the post of Secretary, Government of India and some of his batch-mates who have been empanelled have already been appointed at the level of Secretary to the Government of India. Even if he is considered for empanelment, at the level of Addl. Secretary to the Government of India and is empanelled, it is not necessary that he should be appointed as Addl Secretary to the Government of India. It depends upon his suitability for specific post and the willingness of his parent cadre to spare his services for central deputation. In any case his memorials against non-empanelment at the level of Addl. Secretary and Secretary to the Government of India stand rejected with the issue of Order No. 38/0/2000-EO (SM-I), dated 9.8.2000. It is denied that non-empanelment at the level of Addl. Secretary to the Government of India prejudices empanelment at the level of Secretary to the Government of India. As regards to the case of Shri G. Ganesh a batch mate of the petitioner referred to by him, the factual position is that Sri Ganesh was not appointed as Joint Secretary to the Government of India; he was appointed as Member Secretary of Disinvestment Commission set up by the Government of India. It is thus, not comparable. In the counter-affidavit this aspect has also been dealt with."
30. Now, adverting to provisions of Para 14 of the Central Staffing Scheme, it has been stated by the learned Counsel for the Union of India that the Hon'ble Supreme Court has upheld the provisions of the Scheme in Union of India v. Samar Singh, (1996) 10 SCC 555, as such the contention of the petitioner that the provisions are unconstitutional and against the principle of natural justice has no force. Moreover, this plea was not raised by the petitioner before the learned Tribunal as such the Tribunal observed that there is no relief in the O.A. that Para 14 of the Scheme is violative of the provisions of Constitution of India. Hence we are not entering into this question.
31. With regard to the malafide alleged by the petitioner against the respondents, the learned Counsel for Union of India contended that the Central Administrative Tribunal has considered the submissions made by the petitioner and rejected the same giving reasons for not accepting the same as such arguments advanced by the petitioner here in this behalf are also liable to be rejected. The Tribunal has recorded a clear finding that the ground of malafide alleged against respondent No. 2 Sri S.R. Subramanian is of no help to the petitioner as Sri Prabhat Kumar was Cabinet Secretary when the panel for the post of Secretary was considered. So far as respondent Nos. 5 and 6 are concerned, it has been held by the Tribunal that the petitioner has claimed relief against empanelment to the post of Additional Secretary and Secretary, Government of India and no relief for exjunction of any remarks given in the ACRs by the two ex-officers has been claimed.
32. So far as respondent No. 7 to 11 are concerned, the learned Counsel appearing for Union of India argued that before the Tribunal they were not the parties and in fact even the prayer made for impleadment of respondent No. 7 as one of the respondents was rejected by the Tribunal. As such the petitioner has wrongly impleaded respondents Nos. 7 to 11 as the respondents in writ petition, which is not permissible under law. However, since respondent No. 2 and 8 to 11 have been impleaded as respondents in their official capacity, therefore, they have been covered by the reply filed on behalf of Union of India. Since Power Authorizing the Central Government Counsel to appear on their behalf has been filed, we are not entering into this question. Further, we find that there is no infirmity in the finding recorded by the Tribunal rejecting the allegations of mala fide alleged by the petitioner.
33. Learned Counsel for Union of India with vehemence argued that the posts above the rank of Under Secretary to the Government of India and to certain important non-Secretariat posts are not to be considered as posts for the betterment of promotion prospects of any service. The prospects of promotion of an Officer lies within his State Cadre. By Empanelling Officers, the Government of India is only adjudging the suitability of Officers of various services to hold posts under it and it is not denial of promotion to an Officer not empanelled, in his own State Cadre. While due regards is given to seniority, filling up of any specific post is based on merit of the officer for a particular vacancy in the Central Government It does not amount to a denial of promotion to an Officer not empanelled. According to learned Counsel the Tribunal had rightly held that a post carrying a better status and perks within the same cadre cannot be termed as promotion post. Status is a comparative word, so a post may carry a better status in comparison to other but may not carry perks. Similarly, some other posts in the same cadre may carry better perks but may not be of the same status. Further empanelment for the post of Additional Secretary or Secretary to Govt. of India is not a promotion post. The growth, development and career prospects of an All India Service Officer is mainly in their own service of parent cadre.
34. Appointments at the levels of Joint Secretary and Addl. Secretary is made for a prescribed tenure. If an officer holding the post of Addl. Secretary is not appointed as Secretary he will have to return to his parent cadre on the expiry of the prescribed tenure. He could also seek premature repatriation to his parent cadre if he wants to, if he finds that an Officer Junior to him has been appointed to a post at higher level. It may so happen that even if an officer empanelled for appointment at the level of Addl. Secretary, if he does not get an appointment as Secretary he may have to go back to his parent cadre on the expiry of his tenure as Additional Secretary. This, would show that empanelment at the level of Secretary in the case of an Officer already holding the post of Addl. Secretary would not ensure his continued stay on deputation under the Central Government.
35. The question whether the post of Additional Secretary/Secretary can be said to be promotional post was considered by the Supreme Court in Debesh Chandra v. Union of India, AIR 1970 SC 77, in an appeal preferred by Debesh Chandra Das and the Court observed that appointments to the Centre are not in any sense a deputation but mean promotion to a higher post and has given reasons for this in Paragraphs 9 and 10 of the report. Paragraphs 9 and 10 of the report reads as under:
"Under Article 312, these services must be considered common to the Union and the State. Under Section 4 of the All India Services Act, 1951, all rules in force immediately before the commencement of the Act, and applicable to an All India Service were continued, thus, the Indian Civil Administrative (Cadre) Rules, 1950 continued to remain in force.
The position that emerges is that the cadres for the Indian Administrative Services are to be found in the States only. There is no cadre in the Government of India. A few of these persons are, however, intended to serve at the Centre. When they do so they enjoy better emoluments and status. The rank higher in the service and even in the Warrant of Precedence of the President. In the States they cannot get the same salary in any post as Secretaries are entitled to in the Centre. The appointments to the Centre are not in any sense a deputation. They mean promotion to a higher post."
On the other hand, the respondents relying upon the decision in Civil Appeal No. 935/88, Union of India v. J.C. Jetli and Anr., decided on February 27, 1990 that appointment of an IAS Officer to the level of Secretary to the Government of India does not amount to promotion.
36. Having carefully examined the aforesaid judgments, we are of the opinion that the decision given in Jetli's case is not applicable to the facts and circumstances of the present case. With due regard to their Lordships, we would like to say that in Jetli's case (supra), the question as to whether the post of Additional Secretary/Secretary is a promotional post or not has not been dealt with and no specific finding in this regard has been recorded whereas in the case of Debesh Chandra (supra), a specific finding in this regard holding the post of Additional Secretary/Secretary has been recorded. Further the above finding recorded in Debesh Chandra's case has neither been altered nor upset in Jetli's case.
37. Members of Indian Administrative Services are considered batchwise for empanelment as Joint Secretary/Additional Secretary/Secretary. If an Officer is not empanelled for Secretary to the Government of India then he will continue in the State in the scale available for Additional Secretary whereas his junior, who, if is empanelled of Secretary will get the scale of the Secretary to Government of India prior to his Senior. Meaning thereby the person junior will enjoy better status than his senior on account of his non-empanelment as Secretary. All these facts leads to a conclusion that the posts are promotional posts otherwise officers would not have been considered batchwise for appointment on the above posts.
38. Having considered the relevant rules, All India Services (Confidential Rolls) Rules, 1970 and in view of the discussions made hereinabove, we direct the opposite party No. 1 to consider the case of the petitioner afresh for empanelment as Additional Secretary/Secretary in the light of the observations made hereinabove within six weeks' and while considering his case, the fact that the petitioner was earlier not found fit or he has not been empanelled as Additional Secretary will not come in the way of the petitioner. The Committee will take its independent decision on the basis of relevant record such as CR Dossiers, grading done by the Reviewing Authority, letter of appreciations including the memorials submitted by the petitioner against the downgraded entries.
39. Writ petition stands decided accordingly.