- (1.)THE respondent No. 1 is a Member of the Indian Administrative Service and belongs to the Madhya Pradesh cadre. In the CR of the respondent No. 1 for the period Ist April, 1996 to 30th June, 1996, there were some remarks which the Central Government by an order dated 24-7-2002 directed to be treated as 'nonest'. In his CR for the period of 2001-02, the respondent No. 1 was graded as 'average'. The respondent No. 1 filed W. P. (C) No. 7001/2003 before the Delhi High Court and by an interim order dated 30-1-2004, the Delhi High Court directed that the said grading of 'average' given in his CR for 2001-2002 shall not be taken into consideration for promotion within his own cadre till further orders. On 30-1-2004, a DPC met to consider the case of IAS Officers of the Madhya Pradesh cadre including respondent No. 1 for promotion to the grade of Chief Secretary. Since the case of the respondent No. 1 was Sub-judice before the Delhi High Court, the DPC in the said meeting deferred the case of the respondent No. 1 till the final decision of the Delhi High Court. Being aggrieved, the respondent No. 1 filed O. A. No. 761/2004 before the Central Administrative Tribunal, Jabalpur Bench and the said Tribunal disposed of the aforesaid O. A. by order dated 29-9-2004 with a direction to the DPC to reconsider the case of the respondent No. 1 ignoring his ACR for the year 2001-02 in which he had been given overall grading of 'average' and consider his all other available CRs. Pursuant to said order dated 29-9-2004 of the Tribunal, a review DPC was held on 1-11-2004 and recommended that the respondent No. 1 was not suitable for promotion to the grade of Chief Secretary. The respondent No. 1 was, therefore, not promoted to the grade of Chief Secretary. The respondent No. 1 then filed O. A. No. 6/2005 before the Central Administrative Tribunal, Jabalpur Bench and by order dated 31-3-2005 the Tribunal allowed the said O. A. , set aside the recommendations of the review DPC made in its meeting held on 1-11-2004 and directed the petitioner to convene a review DPC afresh to consider the case of the respondent No. 1 as on 30-1-2004, keeping in view the observations in the said order dated 31-3-2005 of the Tribunal. By the said order dated 31-3-2005, the Tribunal further directed that if the respondent No. 1 was found fit for promotion, he shall be promoted from the date his immediate junior was promoted and granted all consequential benefits including arrears of pay and allowances. Aggrieved by the said order dated 31-3-2005 passed in O. A. No. 6/2005 by the Tribunal, the petitioner has filed this petition under Article 227 of the Constitution of India.
(2.)MR. Vivekanand Awasthy, learned Government Advocate appearing for the petitioner submitted that law is well settled that the Court or the Tribunal can not sit in appeal on the decision of the DPC with regard to suitability of a candidate for promotion. In support of this submission, he cited the decision of the Supreme Court in Dalpat Abasaheb Solunke, etc. v. Dr. B. S. Mahajan, etc. AIR 1980 SC 434, wherein it has been held that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates and whether a candidate is fit for particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. He also cited Anil Katiyar v. Union of India and Ors. 1997 (1) SLR 153, in which the Supreme Court has held that the scope of judicial review of the merits of a selection to a civil post is very limited and the Tribunal is not expected to play the role of an Appellate Authority or an umpire on the acts and proceedings of the DPC and it would not sit on judgment over the selection of the DPC unless the selection is assailed as being vitiated by malafides or arbitrariness. Mr. Awasthy also relied on the decision of the Supreme Court in State of West Bengal and Ors. v. Manas Kumar Chakraborty and Ors. , ,, AIR2003 SC 524 , 2003 (1 )ALT46 (SC ), (2003 )2 SCC604 , [2002 ]supp5 SCR72 , 2003 (1 )UJ373 (SC ), in which the Supreme Court has reiterated that it is not open to the Courts to sit in appeal over the view taken by the Appointing Authority and the case of a selection of an incumbent to a post or to substitute its own view for that of duly constituted Committee. He vehemently submitted that in the present case, a reading of the impugned order dated 31-3-2005 of the Tribunal would show that the Tribunal has itself assessed the merits of the respondent No. 1 and formed the opinion that the respondent No. 1 was entitled to be selected on the basis of his CRs. Mr. Awasthy submitted that the Tribunal has further directed that if the respondent No. 1 is found fit for promotion, he shall be promoted from the date his immediate junior was promoted. He submitted that the opinion of the DPC is at best recommendation and the State Government is not bound to promote the respondent No. 1 even if the review DPC opined that the respondent No. 1 was suitable to the grade of Chief Secretary. In this context, he referred to Para 14 of the guidelines of the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) enclosed with the circular dated 28th March, 2000, in which it has been clarified that the recommendations of the DPC are advisory in nature and the State Government may disagree with the recommendations of the DPC.
(3.)IN reply, Mr. Rajendra Tiwari, learned Senior Advocate, appearing on behalf of the respondent No. 1, submitted that he does not dispute the well settled position of law that the Court or the Tribunal can not sit in appeal over the decision of the DPC in matters regarding suitability of the candidates for promotion. He submitted that in the present case, the Tribunal has found that the entire selection procedure was vitiated by bias and arbitrariness. He referred to the impugned order of the Tribunal to show that one criteria was followed by the DPC which met on 30-1 -2004 for considering promotion of all the eligible officers to the grade of Chief Secretary and another criteria was followed in the review DPC which met on 1-11-2004 for considering only the case of the respondent No. 1 for promotion to the grade of Chief Secretary. He further submitted that the Tribunal has also found that ten years CRs of different officers have been considered by the DPC for finding out the suitability of the officers for promotion to the grade of Chief Secretary and that the CRs of the respondent No. 1 for the two years namely; 1996-97 and 2001-2002 could not be considered by the DPC on account of the orders passed by the Central Government declaring the CR for the year 1996-97 as 'nonest' and the orders passed by the Delhi High Court directing that the CR for the year 2001-2002 shall not be considered for any promotion of the respondent No. 1. He submitted that the Tribunal had accordingly directed that CRs for the two previous years should be considered by the DPC so that 10 years CRs of the respondent No. 1 could be considered as has been done by the DPC for other officers. Mr. Tiwari further submitted that the Tribunal had also found that officers who were junior to the respondent No. 1 and were considered alongwith the respondent No. 1 for promotion by the DPC which met on 30-1-2004 were the members of the review DPC which met on 1-11-2004 to assess the merits/suitability of the respondent No. 1. He vehemently argued that the Supreme Court in the case of A. K. Kralpak and Ors. v. Union of India and Ors. ,, AIR1970 SC 150 , (1969 )2 SCC262 , [1970 ]1 SCR457 , had deprecated the participation of an Officer in the Selection Board who was himself one of the candidates for selection, saying that in such participation, there will be conflict between interest and duty of such an Officer and that such a selection was not likely to be free from bias. He further argued that the aforesaid findings of the Tribunal made it clear that the DPC had acted in an unfair and arbitrary manner and for this reason the Tribunal had set aside the recommendations of the DPC and directed reconsideration of the case of the respondent No. 1 for promotion to the grade of the Chief Secretary in accordance with the observations in the order of the Tribunal.