# BADRINATH v. GOVERNMENT OF TAMIL NADU AND ORS

- **Citation:** [2000] Supp. 3 S.C.R. 573
- **Court:** Supreme Court of India
- **Decided:** 2000-09-29
- **Bench:** M. Jagannadha Rao, Umesh C. Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/badrinath-v-government-of-tamil-nadu-and-ors-17604
- **Pages:** 43

## Headnote

Service Law-Promotion-Right to be considered for- 'Fairness' in
matter of consideration for promotion-Concept of-Manner in which adverse
remarks can be taken into consideration-Relative strength of old remarksRelevance of remarks made before an earlier promotion-Powers of Court to
issue a mandamus to promote a candidate to super time scale or to assess
his grading-Scope-Constitution of India-Arts. 16, 226.
Constitution of India-Article 226-Judicial Review-Powers of Court
A
B
c
to interfere with assessment made by Departmental Promotion Committee- D
Scope-Wednesbury Principle-Applicability of
Art. 356-Governor 's order passed during President's rule-It must be
treated as final so far as the State is concerned
The appellant was appointed to the Indian Administrative Service and E
promoted to the selection grade in 1972. His name was considered for
promotion in the super time scale by a Committee but he was not found
suitable as at that time disciplinary cases were pending against the appellant
and in one such case a 'censure' was recommended to the UPSC which was
awarded by the State Government The appellant's juniors were promoted. The F
appellant filed a writ petition challenging the order rejecting his appeal
against non-promotion to super time scale and for the issue of a writ of
mandamus to direct the State Government to promote the writ petitioner w.e.f.
16.1.1977 to the super-time scale, being the date on which his junior was
promoted to the said scale. These petitions were transferred to the Central
Administrative Tribunal and were dismissed. Hence this appeal.
G
The appellant submitted that the State acted in a grossly biased manner,
the proceedings of the Joint Screening Committee dated 30.8.1979 were
vitiated because one disciplinary case though dropped by the Governor during
Governor's rule, was kept alive and an order of censure was passed; that H
573
574
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A certain adverse remarks though prior to his promotion to the selection grade
were highlighted and relied upon by the Joint Screening Committee and undue
importance was given to certain very old remarks which were general
comments in his CRs and due importance was not given to the positive aspects
of his career even though they were incorporated in his CR~.
B
The respondent contended that as there were adverse remarks in his
CRs throughout and also disciplinary cases which ended in 'censure',
therefore, the State Government took a decision not to give him super-time
scales; that the Committee's evaluation could not be questioned under Art.
226 or within the limited scope of the jurisdiction of the Central
C Administrative Tribunal and even the Supreme Court cannot go into merits
of the assessment made by the Joint Screening Committee and that there were
no malafides on the part of the erstwhile Chief Secretaries of the State, the
doctrine of necessity was applied to the facts of the case and the fact that
certain adverse confidential reports were written earlier by these officers,
that does not disqualify them from sitting in the Screening Committees at a
D later point of time.
The points raised for consideration were (1) Whether, the award of
'censure' in a disciplinary case by the State Government was contrary to the
directions of the Governor during the President's Rule? (2) Whether the
assessment of the Confidential Reports of the appellant by the Joint Screening
E Committee was vitiated by relying upon inadmissible or trivial material and
by not giving weight to positive sides of his career? (3) Whether very old
remarks made before the appellant's earlier promotion to selection grade
.could be relied upon strongly? (4) Whether the then Chief Secretary should
have recused himself from participating in the Joint Screening Committee
p meeting held on 30.8.1979 or whether the doctrine of 'necessity' applied?
Allowing the appeal, the Court
1.1 Under Art. 356 of the Constitution, when the President vests the
Governor wit

## Text

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BADRINATH
v.
GOVERNMENT OF TAMIL NADU AND ORS.
SEPTEMBER 29, 2000
[M. JAGANNADHA RAO AND UMESH C. BANERJEE, JJ.]
Service Law-Promotion-Right to be considered for- 'Fairness' in
matter of consideration for promotion-Concept of-Manner in which adverse
remarks can be taken into consideration-Relative strength of old remarksRelevance of remarks made before an earlier promotion-Powers of Court to
issue a mandamus to promote a candidate to super time scale or to assess
his grading-Scope-Constitution of India-Arts. 16, 226.
Constitution of India-Article 226-Judicial Review-Powers of Court
A
B
c
to interfere with assessment made by Departmental Promotion Committee- D
Scope-Wednesbury Principle-Applicability of
Art. 356-Governor 's order passed during President's rule-It must be
treated as final so far as the State is concerned
The appellant was appointed to the Indian Administrative Service and E
promoted to the selection grade in 1972. His name was considered for
promotion in the super time scale by a Committee but he was not found
suitable as at that time disciplinary cases were pending against the appellant
and in one such case a 'censure' was recommended to the UPSC which was
awarded by the State Government The appellant's juniors were promoted. The F
appellant filed a writ petition challenging the order rejecting his appeal
against non-promotion to super time scale and for the issue of a writ of
mandamus to direct the State Government to promote the writ petitioner w.e.f.
16.1.1977 to the super-time scale, being the date on which his junior was
promoted to the said scale. These petitions were transferred to the Central
Administrative Tribunal and were dismissed. Hence this appeal.
G
The appellant submitted that the State acted in a grossly biased manner,
the proceedings of the Joint Screening Committee dated 30.8.1979 were
vitiated because one disciplinary case though dropped by the Governor during
Governor's rule, was kept alive and an order of censure was passed; that H
573
574
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A certain adverse remarks though prior to his promotion to the selection grade
were highlighted and relied upon by the Joint Screening Committee and undue
importance was given to certain very old remarks which were general
comments in his CRs and due importance was not given to the positive aspects
of his career even though they were incorporated in his CR~.
B
The respondent contended that as there were adverse remarks in his
CRs throughout and also disciplinary cases which ended in 'censure',
therefore, the State Government took a decision not to give him super-time
scales; that the Committee's evaluation could not be questioned under Art.
226 or within the limited scope of the jurisdiction of the Central
C Administrative Tribunal and even the Supreme Court cannot go into merits
of the assessment made by the Joint Screening Committee and that there were
no malafides on the part of the erstwhile Chief Secretaries of the State, the
doctrine of necessity was applied to the facts of the case and the fact that
certain adverse confidential reports were written earlier by these officers,
that does not disqualify them from sitting in the Screening Committees at a
D later point of time.
The points raised for consideration were (1) Whether, the award of
'censure' in a disciplinary case by the State Government was contrary to the
directions of the Governor during the President's Rule? (2) Whether the
assessment of the Confidential Reports of the appellant by the Joint Screening
E Committee was vitiated by relying upon inadmissible or trivial material and
by not giving weight to positive sides of his career? (3) Whether very old
remarks made before the appellant's earlier promotion to selection grade
.could be relied upon strongly? (4) Whether the then Chief Secretary should
have recused himself from participating in the Joint Screening Committee
p meeting held on 30.8.1979 or whether the doctrine of 'necessity' applied?
Allowing the appeal, the Court
1.1 Under Art. 356 of the Constitution, when the President vests the
Governor with the powers of the State Government, the Governor can exercise
G all the powers of the State Government, without the advice of his Council of
Ministers. The Governor becomes responsible to the Union Parliament. The
Governor can exercise the statutory power exercisable by the State
Government. In the instant case, the order of the Governor dropping all the
four disciplinary cases including the one which was treated as pending, was
passed during Presidents's rule and that order must have been treated as
H final so far as the State was concerned. Infact the State dropped the three
-
r
BADRINATHv.GOVT.OFTAMILNADU
575
cases but treated the fourth case as pending, even though that was also dropped A
by the Governor. Merely because the matter had gone to the UPSC before
Governor dealt with the issue, the Governor's orders could not have been
ignored. By the date the State received the letter of the UPSC and passed the
final order of censure the Governor's orders were already there and, therefore,
Government should have refrained from passing the order of 'Censure'. Once B
that power was exercised by the Governor, all the consequential proceedings
leading to the 'censure' fall to the ground. This flows from the general
principle applicable 'to consequential orders.' Once the basis of a proceeding
is gone, may be at a later poi11t 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. C
This principle of consequential orders which is applicable to judicial and quasijudicial 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 D
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. Even on merits, the action of the Government
awarding censure was, apart from being without jurisdiction, was also one
made by not taking into account the various facts stated in the appellant's
long explanation. The action was arbitrary. At the most, the officer could have E
been told that, in future, he should be careful. The order of censure was bad
in law and the State and Central Government erred in relying on the same
for rejecting his plea for super-time scale. [588-C-F; 591-C-D)
2.1. Normally, this Court does not enter into the question of correctness F
of assessment made by Departmental Promotion Committees. Unless there is
a strong case for applying the Wednesbury doctrine or there are ma/afides,
courts and Tribunal cannot interfere with assessments made by Departmental
Promotion Committee in regard to merit or fitness for promotion. But in rare
cases, ifthe assessment is either proved to be ma/a fide or is found based on
inadmissible or irrelevant or insignificant and trivial material-and if an G
attitude of ignoring or not giving weight to the positive aspects of one's career
is strongly displayed, or ifthe inferences drawn are such that no reasonable
person can reach such conclusion, or if there is illegality attached to the
decision,-then the powers of judicial review under Article 226 of the
Constitution are not foreclosed. (591-F-H; 592-A)
H
A
576
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
2.2. 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
B ground of malafides. The judicial power remains but its use is restri_cted to
rare and exceptional situations. 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 €ommittees and
promotions. (592-C-D] _
c
3.1. Every officer has right to be considered for promoti~n under Article
16 of the Constitution 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
D consideration for promotion under Article 16. (593-F]
3.2. 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
E established principles governing service jurisprudence. 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 mala fide. 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.
F But the weight which must be attached to the adverse remarks depends upon
certain sound principles of fairness. 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
G promotion. This is the position even in cases of compulsory retirement. 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.
Uncommunicated adverse remarks could be relied upon even if no opportunity
H was given to represent against them before an order of compulsory retirement
' -
-
..
BAD RI NATH v. GOVT. OF TAMIL NADU
577
is passed. [598-D-H)
3.3. In the instant case, several of the adverse remarks recorded during
the period 1973-1977 whether they were general in nature or were particular,
were based upon the allegations contained in the fourth charge which were
dropped by the Governor. Once the charges were dropped, it was obligatory on
A
the part of the Government to delete those adverse remarks which were made B
prior to 28.6. 77 covering the aforesaid period. Unfortunately, these adverse
remarks were allowed to continue in the service record and were taken into
account by the Joint Screening Committee. These remarks were deleted long
after the Committee's decision. But by that time the damage was done. [600-C-D)
3.4. The Joint Screening Committee in its decision dated 30.8. 79 relied C
upon very old adverse remarks or comments. Some were made when the
appellant was in IAS Training School and the initial years of his service. Some
were made before 1.11. 72 on which date the appellant was promoted to selection
grade. This was not a fair assessment and is in breach of the principles laid
down in Baikunth Nath Das Case. (602-C-D)
D
Baikunth Nath Das v. Chief District Medical Officer, (1992)2 SCC 299;
State of Punjab v. Dewan Chunilal, (1970)1 SCC 479; Brij Behari Lal
Aggarwal v. High Court of MP., [1981)1SCC490; JD. Sirvastava v. State of
MP., [1984) 2 SCC 8; Brij Mohan Singh Chopra v. State of Punjab, [1987) 2
SCC 188; State of Punjab v. Gurdas Singh, [1998)4 SCC 92; Air Vice Chief E
Marshall S.L. Chhabra v. Union of India, [1993) Suppl 4 SCC 441; Union of
India v. G. Ganayutham, [1997) 7 SCC 463 and Union of India v. V.R. Seth,
AIR (1994) SC 1261, relied on.
3.5. The assessment done by the Joint Screening Committee and its
acceptance by the State and the Central Government were illegal and arbitrary F
and liable to be set aside even within the narrow limits of 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 upon on 30.8.79 and were expunged only in 1980, undue weight was
given to old remarks by deliberately digging them out and even to those before G
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 com~anded
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 H
578
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A principles. (605-B-D]
B
4.1 From the mere fact that the Chief Secretary who had earlier made
. I
.
certain adverse remarks against the appellant, was the Chairman of the
Screening Committee, no bias can be imputed from that fact alone. Where a
statute or a statu'tory 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 makes an exception in the situation and the said person is entitled to take
a decision notwithstanding his disqualification or otherwise no decision can
be taken by anybody on the issue and public interest will suffer. But the
C position in the present case was that there was no statute or statutory rule
compelling the Chief Secretary to be a member of Screening Committee. If
the Committee is constituted under an administrative order and a member is
disqualified in a given situation vis-a-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
D 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. In the instant case, the Chief
Secretary could withdraw, leaving it to the remaining two to decide and in
E case of difference, he could ask the Government to substitute a third member
in the Committee. The doctrine of necessity would not apply even if there was
difference between the other two. (610-B-C; 611-D]
Mahadevan v. D.C. Agarwal, (1993] Suppl. 4 SCC 4; Tilak Chand
Magatram v. Kamala Prasad, [1995) Suppl 1SCC21 and Rattan Lal Sharma
F v. Managing Committe, Dr. Hari Ram, [1993]4 SCC 10, relied on.
G
J Mahapatra and Co. v. State of Orissa, [1984]4 SCC 103; Institute of
Chartered Accountants v. L.K. Ratna, [1986] 4 SCC 537 and Election
Commissioner of India v. Dr. Subrahmanyam Swamy, [1996)4 SCC 104, relied on.
4.2. This is a pre-eminently fit case requiring the issue of a mandamus.
The Court may in some rare cases itself pass an order or give directions
which the government or the public authority should have passed or given,
had it properly and lawfully exercised its discretion. The consideration of the
appellant's case for the said promotion has been hanging fire and going up
H and down for the last twenty five years. Disgusted with the delays, the appellant
-
-,•
BADRINATHv.GOVT.OFTAMILNADU[M.JAGANNADHARAO,J.] 579
has also taken voluntary retirement. In the special and peculiar circumstances A
· of the case, the respondents are directed to grant the appellant the benefit of
the super time scale from the date on which the appellant'sjunior was granted
super time scale, and consequential retiral benefits. [614-F-H; 615-A-BJ
B.C. Chaturvedi v. Union of India, [1995) 6 SCC 749; Union of India
& Ors. v. Lt. Gen. Rajinder Singh Katyan, [2000)5 Scale 327; Comptroller & B
Auditor General of India v. K.S. Jagannathan, [1986)2 SCC 679; Dwarkanath
v. ITO, [1965)3 SCR 536; Relied on; Mayor of Rochester v. Regina, (1858)
EB & E 1024; King v. Revising Barrister, (1912) 3 KB 518; Padfieldv. Minister
of Agriculture, Fisheries & Food, (1968)AC 997; R. v. Manchester JJ, (1899)1
QB 571 and R. v. Flintshire CC, 1957 (1) QB 350 R. v. Lord (city of) Licencing C
JJ, (1954) 1 WLR 1325, referred to.
D. Ramaswamy v. State of Tamil Nadu, [1982)1 SCC 510 and Baidyanath
Mohapatra v. State of Orissa, [1989] 4 SCC 664, distir.guished.
CIVIL APPEL LA TE JURISDICTION : Civil Appeal No. 2453 of 1987.
From the Judgment and Order dated 10.6.86 of the Central Administrative
Tribunal, Madras in T.A. No. 45 and 137 of 1985.
Appellant-in-person and Sanjay Parikh for the Appellant.
D
C.S. Vaidyanathan, Y.P. Mahajan, A. Mariarputham, P.P. Malhotra, E
Ms. Sushma Suri, Ms. Arona Mathur, Ms. Anurag and D. Mathur for the
Respondents.
The Judgment of the Court was delivered by
M. JAGANNADHA RAO, J. This appeal has been preferred against the
judgment of the Central Administrative Tribunal dated I 0.6.1986 in TA Nos. F
45 and 137 of 1985. By the said judgment, the said TAs were dismissed.
Initially, the appellant had filed Writ Petitions 1343 and 1344 of 1981 in the
High Court of Madras and the said petitions were transferred to the Tribunal.
The appellant prayed in the Writ petition, the quashing of the order G
dated 7 .8.1980, passed by the Department of Personnel and Administrative
Reforms, Government of India (2nd respondent) rejecting his appeal against
non-promotion to super-time scale and for the issue of a writ of mandamus
to direct the Government of Tamil Nadu (1st respondent) and the Government
ofindia, to promote the writ petitioner w.e.f. 16.1.77 to the super-time scale,
being the date on which his junior was promoted to the said scale. Respondent H
580
SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.
A No. 3 in the petition was Mr. V. Karthikeyan, IAS and respondent No. 4, Mr.
C.V.R. Panikar, both fonner Chief Secretaries 0fTamil Nadu. Mala tides were
imputed to both of them. The impugned order of the Central Govt. dated 7.8.80
was an order rejecting the appellant's appeal dated 10.2.78 under Rule 16 of
the All India Services (Discipline and Appeal) Rules, 1963. ·
B
The following are the facts:
The appellant was appointed in the Indian Administrative Service on
7.5.1957 and was fixed in the Junior scale on 7.5.57. He was promoted to the
Senior scale w.e.f. 29.1.62. He was promoted to the Selection grade w.e.f.
1.11. 72, although 'some of his juniors were promoted to the selection grade
C w.e.f. 15.5.1971. His name was considered initially for promotion in the supertime scale on 30.8.1976 along with his batchmates by a Committee consisting
of Mr. V. Karthikeyan, Chief Secretary to Government (3rd respondent), Mr ..
S. Viswanathan, the then First Member, Board of Revenue and Mr. C.V.R.
Panikar, the Second Secretary to Government. The Committee recommended
D his supersessiori on the ground that there were disciplinary cases pending.
But the Advisor to the Government directed that the promotions may stop
with 1957 list~ At that time therefore, the appellant was not superseded.
Later on, the Committee consisting of Sri C.V.R. Panikar (Chief Secretary)
(4th respondent), Mr. S. Viswanathan and Mr. K.V. Ramanathan met on 9.6.77
E and 28.6.1977 and found the appellant not suitable for promotion to super-time
scale. It was again the case of the State that at that time disciplinary cases were
pending against the appellant. The Committee observed that out of four cases,
one was disposed of with a decision not to proceed with further action. Of the
remaining three, it was said that in one a 'censure' was recommended to the
UPSC. The other two cases were pending. In one of these two, the Inquiry Officer
F
had recommended reduction to maximum of the senior time scale for 2 years. On
these grounds, appellant was not recommended on 28.6. 77 but it was stated that
as soon as two disciplinary cases were over, the matter could be reconsidered.
The appellant's juniors were promoted. It was against the said order that the
appellant filed appeal on I 0.2. 78 to the Central Govt.
G
In the appeal dated I 0.2. 78 filed against supersession by the Screening
Committee on 9.6.77 and 28.6.77, the Central Government passed an order on
5.6.79 (Letter No. 11018/5/78-AIS III) (P. 156 of the file). It observed that the
Committee which met on 9.6.77 and 28.6.77 did not consider his fitness on the
basis of C.R. record as a whole and general assessment of work. The Committee
H was in error inasmuch as it decided the ca!>.- of the appellant only on the basis
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_,
BAD RI NATH v. GOVT. OF TAMIL NADU [M. JAGANNADHA RAO, J.]
581
of pendency of his disciplinary cases and that the above action of the A
Committee was not in accordance with the instructions of the Government
of India dated 27.12.75. The Committee should have assessed his suitability
on the basis of CRs, and placed the findings in a 'sealed cover', to be opened
after the disciplinary proceedings were over. On this basis, an order of remand
was passed. The Central Government also subsequently directed a Joint B
Screening Committee to be constituted.
After the remand order dated 5.6.79, the matter went back to the State
Government. In its letter dated 27.7.79, the State Government gave its
concurrence for constituting a Joint Screening Committee of representatives
of the State Govt. and Government of India. The State Govt. then constituted C
a Committee on 20.8.79 consisting of Sri V. Karthikeyan, Chief Secretary, Tamil
Nadu (3rd respondent), Sri K.S. Sivasubrahmanyam, First Member, Board of
Revenue, and Sri S.P. Srinivasan, Second Secretary to Government of Tamil
Nadu. The Government oflndia's repres~ntatives were Sri Maheswari Prasad,
IAS (Secretary, Department of Personnel and Administrative Reforms, New
Delhi), and Sri P.R. Dubash, IAS (Establishment Officer, Department of D
Personnel and Administrative Reforms, Ministry of Home Affairs, New Delhi).
This Committee met on 30.8.79. Because the fourth disciplinary case regarding
expenditure of Rs. 20,807 on furnishing office without prior sanction was
pending, (the other three having been dropped) the Committee placed its
assessment of the CRs upto 31.3.77 in a sealed cover. It also considered the E
CRs from 1.4. 77 till 30.8. 79 for promoting him to super-time scale in 1979 and
placed its recommendations in another sealed cover. These two sealed covers
were to be opened after conclusion of the fourth disciplinary case.
Ultimately, in the said fourth disciplinary case, the State Govt. issued
G.O. No. 859 Public (Special A) Department on 8.4.80 imposing a punishment F
of 'censure'. It related to the disciplinary inquiry relating to expenditure of Rs.
20,807 in painting and furnishing the appellant's office room without prior
sanction. The order stated that earlier the State Govt. had provisionally
opined that 'censure' ought to be awarded to the appellant and sought the
approval of the UPSC, that the UPSC had finally "advised' imposition of
penalty of censure and that the State Govt. was therefore imposing the said G
penalty. This order dated 8.4.80 was signed by Sri C.V.R. Panikar, Commissioner
of Administrative Reforms (4th respondent).
The two sealed covers containing the recommendation of the Screening
Committee dated 30.8.79 were then opened after the conclusion of the fourth
disciplinary case. It was found that the Committee had not found the appellant H
582
SUP.REME COURT REPORTS [2000] SUPP. 3 S.C.R.
A fit upto 30.8.79 for the super-time scale.
B
On the basis of the contents inside the covers and· in the light of the
'censure' awarded in the disciplinary case, a decision had to be taken in
regard to the appellant's promotion to super-time scale.
The recommendations contained in the sealed covers were then put up
before the Chief Secretary, Sri V. Karthikeyan on 19.4.80. He felt that he should
not handle these files any more obviously because of a Court case filed by
the appellant against him. He endorsed on the file :
"S.S. may please handle this and all other papers relating to this
C
officer, in view of the special (circumstances) well known to all ofus."
On this, Sri Srinivasan endorsed on 25.4.80:
"The Committee's recommendations may be accepted."
D
The Committee's recommendations in the two sealed covers were thus
E
accepted by the Government. The appellant was not found fit for promotion
to super-time scale. The Government of Tamil Nadu then intimated the said
decision to the Central Government on 22.5.80, so that the appellant's appeal
dated 10.2. 78 against supersession in 1977 could be finally disposed of.
The Government of India, on receipt of the State Government's letter
noted that 'censure' was awarded in the fourth disciplinary case. It noted the
recommendations of the Joint Screening Committee dated 30.8.79 as accepted
by the State Govt. It then rejected the appellant's appeal as per office note
dated 11.6.80. The same was signed by the Minister on 17.7.80. The State
F Government was intimated on 7 .8.80. The factum of the said order was intimated
to the appellant by the State Govt. on 4.9.80. These orders were questioned
in the present proceedings.
In the meantime, on 28.6.77 the Governor of Tamil Nadu, during the
President's rule had d!opped all the four disciplinary cases. In spite of that,
G according to the appellant, the fourth case was however, kept pending illegally.
Further the adverse remarks of 1973-77 which were based only on the
allegations in these four disciplinary cases were bound to be deleted as soon
as the Governor dropped the four cases, but the deletion was delayed and
meanwhile the case of the appellant was considered by the Screening Committee
H on 30.8.79 as above stated and he was not found fit. The attack is on the
..
'
BADRINATHv.GOVT.OFTAMILNADU[M.JAGANNADHARAO,J.] 583
selection dated 30.8.79 and the various illegalities committed in that selection. A
Attack is also on Sri Karthikeyan who presided over that Committee.
The appellant had another grievance. There were also certain items of
good work relating to the appellant and these were not placed earlier in his
CRs. He, therefore, filed an appeal to the Government of India. Ultimately, the
Government of India directed on 29.6.78 (P. 50 of file of Central Govt.) the B
State Govt. to incorporate the above positive aspects in his CRs. The State
Govt. in its letter dated 17.3. 79 (page l 089 of the file) accepted to incorporate
the one other item in the CRs. This letter is signed by Sri C.V.R. Panikar.
Regarding the item which was not accepted by the State to be recorded, there
is some further correspondence but that is not very much important now. We C
shall be referring during the course of this judgment to certain other Reports
of an academic nature published by the appellant which was useful to the
State Government and which was commanded by the Supreme Court and
which the State Government refused to place in his record.
The appellant, therefore, filed the two writ petitions in 1981 in the High D
Court questioning the order of the Central Government dated 7.8.80 and
seeking promotion from the date of his junior's promotion. The said writ
petitions were transferred to the Central Administrative Tribunal as T As. 45
and 137/85 and were dismissed on 10.6.87 rejecting all his contentions. This
Civil appeal has been filed against the said common judgment.
In this appeal, we have heard the arguments of the appellant (party in
person) (who was permitted to be assisted by Sri Sanjay Parekh, Advocate)
and of learned senior counsel, Sri C.S. Vaidyanathan for the State of Tamil
Nadu and also for Sri V. Karthikeyan and for Sri Panikar. We also heard Sri
P.P. Malhotra, learned senior counsel for the Government of India.
It was contended by Sri Badrinath, party in person, that the State of
Tamil Nadu and in particular its Chief Secretaries, Sri V. Karthikeyan and Sri
C.V.R. Panikar (respondents 3 and 4) had acted in a grossly biased manner)
E
F
and that grave injustice was done to him as a consequence thereof. The
proceedings of the Joint Screening Committee dated 30.8.79 were vitiated G
because the fourth disciplinary case though dropped by the Governor during
Governor's rule, was kept alive and an order of censpre was passed. Certain
adverse remarks which were relied upon were consequent to order of Central
Government expunged on 29.5.80 by the State Government. Though adverse
remarks prior to his promotion to the selection grade had lost their 'sting'
they were highlighted and relied upon by the Joint Screening Committee. This H
584
SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
A undue importance was given to certain very old remarks which were mere
general comments in his CRs and due importance was not given to the
positive aspects of his career even though they were incorporated on 17 .3. 79
in his CRs and in fact till the Central Govt. wrote to the State Government on
29.6.78 and directed that the positive aspects of his career were to be
incorporated in the CRs, they were not even incorporated in the CRs. This
B was done only on 17.3. 79. The adverse remarks which were proximate and on
which reliance was placed by the Joint Screening Committee, were remarks
whose basis was knocked down once Governor directed on 28.6.77 the
dropping of all four disciplinary cases. All the four disciplinary cases were
dropped by the Governor on 28.6.77 and the said remarks ought to have been
C expunged but they were allowed to remain in the CRs and on the basis of the
said CRs, he was found not fit by the Committee on 30.8.79. They were
expunged and in some respects only partially much later on 29.5.80 long after
the Committee meeting on 30.8.79. The Committee's adverse recommendations
contained in two sealed covers - one upto 31.3.77 and the other upto 30.8.79
- were both based on trivial or "inadmissible" material and by not giving
D adequate weight to the positive aspects of his career which were incorporated
in his CRs. on 17.3.79. The censure order issued by the State Government on
17.3.79 under the fourth disciplinary inquiry relating to furniture expenditure
of Rs. 20,807 could not have been taken into account by the State Government
or the Central Government since the case itself was dropped on 28.6.77. Even
E on merits the allegation was not that the expenditure was wasteful or unwanted
but that prior sanction was not obtained. The fact that the appellant had
informed senior officers earlier and they allowed him to incur the expenditure
was not considered. The senior officers who were working against the appellant
could not find anything else except to use this as a useful weapon. The UPSC
could not have given a recommendation for censure even though the charge
F was dropped by the Governor subsequent to the reference made to it. In fact,
at one time the State Government was inclined to withdraw the above reference
to UPSC after the Governor's Order but the UPSC was not willing. Therefore,
if these errors were not committed, the Committee would have recommended
grant of super-time scale. Other officers with bad record were allowed to be
G promoted to the super-time . scale and not the appellant.
The appellant furtper strongly relied upon the allegation of ma/a fides
made by him in the Writ Petitions against the two Chief Secretaries, Sri
Karthikeyan and Sri Panikar (respondents 3 and 4), details whereof were
elaborately set out in the Writ Petition. He contended that these allegations
H ought to have been accepted by the Central Administrative Tribunal. The
BADRINATHv.GOVT.OFTAMILNADU[M.JAGANNADHARAO,J.] 585
assessment of the CRs, should not have been made on 30.8.79 by a Committee A
chaired by Sri V. Karthikeyan because long before 30.8.79 the appellant had
filed a Writ Petition No. 979178 seeking prosecution of Sri Karthikeyan. The
Writ Petition was no doubt dismissed on 23.1.79 but the writ appeal was
allowed by the Division Bench on 20.12.84 and that judgment was confinned
by the Supreme Court on 15. l 0.87 in The Govt. of Tamil Nadu v. Badrinath, B
AIR (1987) SC 2381. The writ appeal was pending when the Committee chaired
by Sri V. Karthikeyan made the impugned assessment on 30.8.79 Sri Karthikeyan
had been, over a long period of years even before 1978 treating the appellant
in a vindictive fashion and was making adverse remarks or comments in his
CRs. The position of Sri C.V. Panikar was not different. He had awarded
'Censure' in regard to the fourth disciplinary case inspite of the fact that the C
Governor of Tamil Nadu had earlier directed dropping of the case. Both the
officers treated the appellant badly and at one point of time, the Advisor to
the Governor Mr. Dave made adverse comment on this aspect. After the
Advisor left Madras, his remarks which were in favour of the appellant were
not given effect to.
D
On the other hand, Sri C.S. Vaidyanathan, learned senior counsel for the
respondents contended that under Sub-rule 2(a) of Rule 3 ofIAS (Pay) Rules,
1954, selection to the super-time scale is to be based by merit considering the
entire record from the beginning of the career though with due regard to
seniority. The adverse remarks before promotion in 1972 to the Selection E
grade could be relied upon. Suitability of officers is to be judged by evaluating
their character Roll-record as a whole and general assessment of work
throughout their career. In this case there were adverse remarks in his CRs
throughout. There were also disciplinary cases earlier and later also. On the
basis of CRs, an assessment was made by the Joint Screening Committee on
30.8.79 that appellant was not fit for promotion and that the matter be kept F
in sealed cover since the fourth-disciplinary case was pending. The disciplinary
case which was pending later ended in 'Censure' and therefore the State
Government took a decision not to give him super-time scale and the Central
Government too concerned by dismissing the appellant's appeal. This was
absolutely justifiable. The Committee's eval.uation could not be questioned G
under Article 226 or within the limited scope of the jurisdiction of the Central
Administrative Tribunal. Even the Supreme Court cannot go into merits of the
assessment made by the Joint Screening Committee. The 'Censure'
recommended by the State Government in regard to the fourth disciplinary
case was in fact accepted by the UPSC and the final order was passed by
the State imposing the punishment of censure. The order together with the H
586
SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.
A assessment of CRs, were intimated to the Central Government. The Central
Government then rightly rejected the appeal against non-promotion. There
were no ma/a fides on the part of Mr. Karthikeyan or Mr. Panikar. These
officers and the State Government have, in their detailed counters, denied all
the allegations of ma/a fides. Sri Karthikeyan was Chairman of the Committee
on 30.8.79 because, under the notification of Government of Madras in GOMs
B 1750 Public (Special-A) dated 20.8.79, the Chief Secretary, the First Member
and Second Member, Board of Revenue were to be members. He could not
have 'recused' himself from the proceedings. The doctrine of 'necessity'
applied to the facts of the case. It may be that certain adverse confidential
reports were written earlier by these officers when they were reviewing officers
C or as Chief Secretaries. That they had to do in the cases of all officers whose
confidential reports came before them. That does not disqualify them from
sitting in the Screening Committees at a later point of time. If they have to
recuse themselves, in most cases, they would not be able to perform their
normal duties when they sit in Departmental Promotion Committees or Screening
Committees. This Civil appeal is, therefore, liable to be dismissed.
D
E
Sri P.P. Malhotra, learned senior counsel for Central Government
supported the orders of Central Government rejecting the appellant's appeal.
At the conclusion of the case, the files of the Central and State
Governments were handed over to the Court.
On the basis of the above contentions, the following points arise for
consideration:
(1) Whether, the award of 'censure' in the fourth disciplinary case
F
(relating to furnishing his office without previous sanction) by the State
Government was contrary to the directions' of the Governor during the
President's Rule emergency and whether di'e State Government thereafter
wanted to withdraw the reference to the UPSC and the UPSC refused to permit
such withdrawal? Whether the appellant was treated fairly in respect of the
said proceedings?
G
(2) Whether the assessment of the Confidential Reports of the appellant
by the Joint Screening Committee at its meeting dated 30.8.79 was vitiated by
relying upon inadmissible or trivial material and by not giving weight to
positive sides of his career and also by wrongly relying upon adverse remarks
whose basis was knocked down by the dropping of various charges? Whether
H the appellant was dealt with fairly?
BADRINATHv.GOVT.OFTAMILNADU[M.JAGANNADHARAO,J.] 587
(3) Whether very old remarks made before the appellant's earlier A
promotion to selection grade could be relied upon strongly even though the
sting in them had faded?
(4) Whether the Chief Secretary, Sri V. Karthikeyan should have recused
himself from participating in the Joint Screening Committee meeting on 30.8.79?
Or whether the doctrine of 'necessity' applied?
B
(5) Whether the action of the 3rd and 4th respondents was mala tides?
(5) To what relief?
Point 1
This point deals with the validity of the 'censure' order passed by the
State Government on 8.4.80 in the fourth disciplinary case. This censure was
taken into consideration by the State Government for denying promotion to
c
the appellant and by the Central Government while rejecting his appeal. We
have already stated that the fourth disciplinary case was dropped by the D
Governor, during President's Rule on 28.6.77 itself. Question is as to whether,
the case could have been kept pending and without dropping it forthwith on
the plea that the question of punishment had already been referred to the
UPSC.
In our opinion, the order of the Governor dropping all the four disciplinary E
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' F
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 G
the order of 'censure'.
When an elected Government is not in office, the orders of the Governor
under Article 356(l)(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 H
588
SUPREME COURT REPORTS [2000] SUPP.