2000 Supreme(SC) 1614

2000(7) Supreme 6
Supreme Court of India
(From CAT, Madras)
M. Jagannadha Rao & U.C. Banerjee, JJ.
Badrinath —Appellant
versus
Government of Tamil Nadu & Ors. —Respondents
Civil Appeal No. 2453 of 1987
Decided on 29-9-2000

Important Points
1. Where State Government made reference to UPSC proposing punishment of censure on an IAS Officer but the Governor while President s rule was in force ordered dropping the disciplinary proceedings the case could not have been kept pending and without dropping it forthwith on the plea that the question of punishment had already been referred to the UPSC and the UPSC was not right in refusing Government to withdraw reference. The UPSC could not override the action of the Governor acting as the delegate of the President of India.
2. Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, Courts and Tribunal cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or fitness for promotion.
3. While assessing the merits of officer for promotion by the DPC if certain standards have been applied in the case of other officers, the appellant is entitled to be judged by the same yardsticks.

Headnote:(i) All India Services (Discipline and Appeal) Rules, 1969—Disciplinary proceedings—IAS Officer—Enquiry Officer recommending punishment of censure—State Government referring matter to U.P.S.C. which accepting recommendation—Meanwhile Governor during President s rule ordering dropping of disciplinary proceedings—State Government withdrawing reference made to UPSC—UPSC not allowing withdrawal—State Government imposing punishment of censure—Not sustainable—Order of Governor could not have been ignored by executive or by UPSC—Dropping of proceedings by Governor s order concluded issue—Punishment stands set aside.

       The order of the Governor dropping all the four disciplinary cases including the one which was treated as pending, was passed during President’s rule and that order must have been treated as final so far as the State was concerned. In fact it dropped the three cases but treated the fourth case as pending, even though that was also dropped by the Governor. Inasmuch as the Governor’s orders are final, a serious question as to jurisdiction of the subsequent proceedings in the fourth case resulting in ‘Censure’ arises. Merely because the matter had gone to the UPSC before Governor dealt with the issue, the Governor’s orders dated 28.6.77 could not have been ignored. By the date the State received the letter of the UPSC and passed the final order of censure on 8.4.80, the Governor’s orders dated 28.6.77 were already there and therefore Government should have refrained from passing the order of ‘censure’ (Para 23)

       When an elected Government is not in office, the orders of the Governor under Article 356(1)(a) as an agent of the President of India are equivalent to the orders that might have been passed by an elected Government in office and the Governor’s orders had to be given effect fully and could not have been ignored either by the executive or by the Union Public Service Commission. (Para 24)

       This flows from the general principle of applicable to ‘consequential orders’. Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime-like the recommendation of the State and by the UPSC and the action taken thereon - would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. In other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor in this case) and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order. (Para 26)

       The note file of the State Govt. too notes this aspect (see p. 36, note dated 24.8.79) when it states that ‘when the State was under President’s rule, the present Governor ‘ordered’ on 28.6.77 that the action against the officer be dropped. The UPSC has not agreed to this course of action." The UPSC could not override the action of the Governor acting as the delegate of the President of India. (Para 27)

       (ii) All India Services (Discipline and Appeal) Rules, 1969—Disciplinary action—Application of Wednesbury principles—IAS Officer—Allegation in charge that delinquent incurred expenditure in renovating his office room without prior sanction—Facts revealing higher officers were well aware and appraised of expenditure well in advance—Principles of Wednesbury applicable to facts of case—Punishment of censure bad in law. (Paras 29 to 35)

       (iii) Service Law—Promotion—Assessment of confidential report—Application of Wednesbury doctrine—Court does not enter into correctness of assessment made by Departmental Promotion Committees—In case of serious overtones of legal bias and mala fides Court can apply Wednesbury doctrine—In such cases power of judicial review under Article 226 is not foreclosed—Right to be considered for promotion is a fundamental right.

       Normally, this Court does not enter into question of the correctness of assessment made by Departmental Promotion Committees (or Joint Screening Committees). Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, Courts and Tribunal cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material - and if an attitude of ignoring or not giving weight to the positive aspects of one’s career is strongly displayed, of if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, - then the powers of Judicial review under Article 226 of the Constitution are not foreclosed. While the courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committees, the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to be scrutinised by Courts, within the narrow Wednesbury principles or on the ground of mala fides. The judicial power remains but its use is restricted to rare and exceptional situations. We are making these remarks so that courts or tribunals may not - by quoting this case as an easy precedent - interfere with assessment of merit in every case. Courts and Tribunals cannot sit as appellate authorities nor substitute their own views to the views of Departmental Promotion Committees. Undue interference by the Courts or Tribunals will result in paralysing recommendations of Departmental Committees and promotions. The case on hand can be a precedent only in rare cases. (Paras 36, 38 and 39)

       Every officer has a right to be considered for promotion under Article 16 to a higher post subject to eligibility provided he is within the zone of consideration. But the question is as to the manner in which his case is to be considered. This aspect is a matter of considerable importance in service jurisprudence as it deals with ‘fairness’ in the matter of consideration for promotion under Article 16. (Para 45)

       From various judgments of the Supreme Court the following principles can be summaries.

       (1) Under Article 16 of the Constitution, right to be considered for promotion is a fundamental right. It is not the mere consideration for promotion that is important but the consideration must be ‘fair’ according to established principles governing service jurisprudence.

       (2) Courts will not interfere with assessment made by Departmental Promotion Committees unless the aggrieved officer establishes that the non-promotion was bad according to Wednesbury Principles or was it mala fides.

       (3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory retirement. But the weight which must be attached to the adverse remarks depends upon certain sound principles of fairness.

       (4) If the adverse remarks relate to a distant past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, particularly if there are no such remarks during the period before his promotion. This is the position even in cases of compulsory retirement, compulsory retirement.

       (5) If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether.

       (6) Uncommunicated adverse remarks could be relied upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed. (Para 56)

       (iv) IAS (Pay) Rules, 1954—Rule 3(2)(a)—Promotion—Supertime scale—Eligibility—Determination of—Appellant s case considered but rejected on ground of adverse remark in C.R.—Adverse remark related to period earlier to his promotion for selection grade—Consideration of punishment of censure in departmental disciplinary proceedings which stood dropped by order of Governor—Non-consideration and non giving of credit to good works done by him—Screening Committee chaired by an officer against whom appellant filed defamation suit which was pending at relevant time—Assessment done by joint Screening Committee and its acceptance by State Government and Central Government illegal and arbitrary—Pre-eminently fit case to issue mandamus — Appellant entitled to promotion to super-time scale —Order refusing to grant supertime scale quashed—Government ordered to grant benefit of Supertime scale from date of on which appellant s junior was granted Supertime scale.

       Held : The assessment done by the Joint Screening Committee on 30.8.79 and its acceptance by the State and the Central Government were illegal and arbitrary and liable to be set aside even within the narrow limits Wednesbury principles. Inadmissible material was relied upon, a censure which was issued on a charge dropped was relied upon , adverse remarks which were liable to be expunged soon after the Governor’s orders on 28.6.77 were continued and relied on 30.8.79 and were expunged only in 1980, undue weight was given to old remarks by deliberately digging them up and even to those before his selection grade promotion even though they had lost their sting, due weight was not given to some very good work done by him which was even commended by the Supreme Court and which resulted in beneficial administrative action. The assessment does not answer the test of ‘fair’ consideration under Article 16 for promotion. It must accordingly be quashed applying Wednesbury principles. We direct accordingly. (Para 61)

       After giving our anxious consideration to the facts of the case, we are of the view that having regard to our findings on Points 1 to 5 and to the continuous unfair treatment meted out to the appellant by the State of Tamil Nadu - even as accepted by the Central Government in its comments – this is a pre-eminently fit case requiring the issue of a mandamus. We are, therefore, constrained to exercise all the powers of this Court for rendering justice and to cut short further proceedings. The consideration of the appellant’s case for the said promotion has been hanging fire and going up and down for the last twenty five years. Disgusted with the delays, the appellant has also taken voluntary retirement. In the light of our decision on Points 1 to 5, we declare the censure on the fourth case as void and without jurisdiction and in the alternative also as liable to be quashed under Wednesbury principles. The adverse remarks of by-gone years prior to 1972 have lost all their sting. The positive factors in the appellant’s favour both recorded (at the compulsion of the Central Government) and others to which we have referred to earlier as meriting consideration are, in our opinion, sufficient to entitle him for promotion to the supertime scale. The appellant’s case is, in our view, no less inferior to the cases of the other officers who were conferred the similar benefit of supertime scale by the State of Tamil Nadu, details of which have been profusely given in the writ petition. For the aforesaid reasons, we quash the punishment of censure, the assessment made by the Joint Screening Committee, the orders passed by the State and Central Government refusing to grant him supertime scale and in rejecting the appeal of the appellant and we further direct as follows. In the special and peculiar circumstances of the case, we direct the respondents to grant the appellant the benefit of the supertime scale from the date on which the appellant’s junior Sri P. Kandaswamy was granted supertime scale. The respondents are accordingly directed to pass an order in this behalf within eight weeks of the receipt of this order and to give him all consequential benefits attendant thereto. The said benefits shall also be reflected in his pension and other retiral benefits. They shall be worked out and paid to him within the time aforementioned. (Paras 86 and 87)

       (v) Service Law—Promotion—Screening Committee—Bias—Doctrine of necessity—Application of— Appellant officer filed defamation case against officer (Chief Secretary) who was nominated as Chairman of Screening Committee which was pending on date of Constitution of Screening Committee—Screening Committee giving finding that appellant officer not fit to be promoted for supertime scale—Chairman (Chief Secretary) should have rescued himself from Committee—Real likelihood of bias—His participation precipated decision making process—Entire recommendation vitiated—Defect not curable because of remedy of appeal —Recommendation of Screening Committee quashed.

       Held : Where a statute or a statutory rule constitutes a designated authority to take administrative or quasi-judicial decisions and where the person concerned is disqualified to take a decision on the principle of likelihood of bias, then the law (in certain circumstances explained below) make an exception in the situation and the said person is entitled to take a decision notwithstanding his disqualification for otherwise no decision can be taken by anybody on the issue and public interest will suffer. But the position in the present case is that there is no statute or statutory rule compelling the Chief Secretary to be a member of the Screening Committee. If the Committee is constituted under an administrative order and a member is disqualified in a given situation vis-à-vis a particular candidate whose promotion is in question, there can be no difficulty in his ‘recusing’ himself and requesting another senior officer to be substituted in his place in the Committee. Alternatively, when there are three members in the Committee, the disqualified member could leave it to the other two – to take a decision. In case, however, they differ, then the authority which constituted the Committee, could be requested to nominate a third member. These principles are well settled and we shall refer to them. (Para 76)

       The very presence of Sri V. Karthikeyan in the Joint Screening Committee has vitiated the entire recommendations and this defect is not also cured because of the remedy of an appeal. The recommendation of the Committee dated 30.8.79, the decision of the State Government dated 22.5.80 accepting and sending the same to the Central Government, and the decision of the Central Government date 7.8.80 on appeal are all liable to be quashed in view of the legal position referred to above. (Para 80)

       (vi) Service Law—Promotion—Standard/yardsticks for—If certain standards have been applied in case of some officers, an aggrieved officers would be entitled to by judged by same yardsticks. (Para 82)