# UNION OF INDIA v. MOHAN LAL CAPOOR & OTHERS

- **Citation:** [1974] 1 S.C.R. 797
- **Court:** Supreme Court of India
- **Decided:** 1973-09-26
- **Bench:** K. K. Mathew, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-mohan-lal-capoor-others-6031
- **Pages:** 25

## Headnote

797
l.A..S./J.P.S. (Appointment by Pro111otiou) Regulations 1955- Regulation
4(1), 5(1), 5(2), 5t4) & 5(5)-Efject of 11011-co111pliance with the 111andatory
duty iniposed by Reg. 5 (5 )-If seniority should b2 do111i11a11t factor-Competence of Slate Government to pass rei'ersion orders.
Natural ;ustice-Notice to superseded officers if necessary.
Regulation 4( 1) of th~
Indian
Admini!Strative
Service/Indian
Police
Service (Appointment by Promotion) Regulations,
1955
provides
for
the
Selection Committee to consider in every year the
cases
of all
substantive
members of the respective services who, on the first day of January of that
year, had completed not less than 8 years' of continucus service in a post of
Deputy Collector/Deputy Superintendent of
Police.
Under
reg.
5( i J
the
Com'.mittee has to prepare a list of such members as rsatisfied the condition in
reg. 4 and as are held by the Committee to be suitable for promotion to the
service.
Regulation 5(2) enjoins that '·selection for inclusion in sucn list shall
be based on merit and suitability in all respects with due regard to seniority."
Regulation 5(4) enjoins that the "List so p~pared shall
b.!
reviewed
or
revised every year." Regulation 5(5) says that
1·if in ~he process of seL:ction.
review or revision it is proposed to supersede any memb;er of the State Civil/
Police Service the Committee shall record its reasons for the proposed superscssion."
The respondents have been members of the U.P. Civil (Executive) Service/
U.P. State Police Service. They were brought on the respective select lists of
I.A.S./l.P.S. in 1961 and 1962 and since then they officiated
as District
Magistrates/Superintendents of Police for a number of years. The respondents who were eligible for promotion came on the eelect list through the pro--
cedure for selection and continued on the select list until the list for 1968 was
prepared in 1967 when a number of junior officers in both cases, whose names
did not figure in the select list of 1967 were added in the select list for 1968.
The rcsppndents were reverted to their substantive posts in the respective State
Services. The reason sent to the Union Public Service Commission by
the
Selection· Committee for the displacement of each of the respondents was that
on an "overall assessment, the records of these officers were not such as to
justify their appointment to the respective service at this stage in preference to
those selected." The High Court quashed the respective select lists
and held
(i) that the Selection Committee did not comply with the provision of reg.
S (S) imposing a mandatory duty upon it to record its reasons for the proposed
supersession (ii) that seniority sh0uld be the dominant factor for
making
selection for inclusion in the list to be prepared under reg. 5 ( 1) and that merit
and suitability were only of ·secondary importance; (iii) that the State Governp
meet had acted on the wrong assumption that it was competent to (lass reversion orde~; (iV) that sinCe the aggrieved officers were punished in the sense
that they. were, dealt with in an arbitrary fashion eat.h of them should' have
been supplied with the reasons· for the supersession to enable them to make
written representation to the UPSC.
Dismissing the appeal to this Court,
HEID : per Beg J ., Mathew J. concurring : The mandatory prov1s1ons of
reg. 5(5) were not complied with. It was incum9ent on the Selection Committee to have stated reasons in a manner which V.'ould disclose how the record
of each officer superseded stood in relation to record of others who· were to
be preferred particularly as this is practically the only remainin.I!: visible safeguard against possible injustice and arbitrariness in making selections.
If that
had been. done. facts on service records of officers consiifered bv the Selection
committee would have been correlated to the
conclusions reached.
Reasons
arc the links between the materials on which certain conclusions are based and
the actual conc

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UNION OF INDIA
v.
MOHAN LAL CAPOOR & OTHERS
September 26, 1973
[K. K. MATHEW AND M. H. BEG, JJ.]
797
l.A..S./J.P.S. (Appointment by Pro111otiou) Regulations 1955- Regulation
4(1), 5(1), 5(2), 5t4) & 5(5)-Efject of 11011-co111pliance with the 111andatory
duty iniposed by Reg. 5 (5 )-If seniority should b2 do111i11a11t factor-Competence of Slate Government to pass rei'ersion orders.
Natural ;ustice-Notice to superseded officers if necessary.
Regulation 4( 1) of th~
Indian
Admini!Strative
Service/Indian
Police
Service (Appointment by Promotion) Regulations,
1955
provides
for
the
Selection Committee to consider in every year the
cases
of all
substantive
members of the respective services who, on the first day of January of that
year, had completed not less than 8 years' of continucus service in a post of
Deputy Collector/Deputy Superintendent of
Police.
Under
reg.
5( i J
the
Com'.mittee has to prepare a list of such members as rsatisfied the condition in
reg. 4 and as are held by the Committee to be suitable for promotion to the
service.
Regulation 5(2) enjoins that '·selection for inclusion in sucn list shall
be based on merit and suitability in all respects with due regard to seniority."
Regulation 5(4) enjoins that the "List so p~pared shall
b.!
reviewed
or
revised every year." Regulation 5(5) says that
1·if in ~he process of seL:ction.
review or revision it is proposed to supersede any memb;er of the State Civil/
Police Service the Committee shall record its reasons for the proposed superscssion."
The respondents have been members of the U.P. Civil (Executive) Service/
U.P. State Police Service. They were brought on the respective select lists of
I.A.S./l.P.S. in 1961 and 1962 and since then they officiated
as District
Magistrates/Superintendents of Police for a number of years. The respondents who were eligible for promotion came on the eelect list through the pro--
cedure for selection and continued on the select list until the list for 1968 was
prepared in 1967 when a number of junior officers in both cases, whose names
did not figure in the select list of 1967 were added in the select list for 1968.
The rcsppndents were reverted to their substantive posts in the respective State
Services. The reason sent to the Union Public Service Commission by
the
Selection· Committee for the displacement of each of the respondents was that
on an "overall assessment, the records of these officers were not such as to
justify their appointment to the respective service at this stage in preference to
those selected." The High Court quashed the respective select lists
and held
(i) that the Selection Committee did not comply with the provision of reg.
S (S) imposing a mandatory duty upon it to record its reasons for the proposed
supersession (ii) that seniority sh0uld be the dominant factor for
making
selection for inclusion in the list to be prepared under reg. 5 ( 1) and that merit
and suitability were only of ·secondary importance; (iii) that the State Governp
meet had acted on the wrong assumption that it was competent to (lass reversion orde~; (iV) that sinCe the aggrieved officers were punished in the sense
that they. were, dealt with in an arbitrary fashion eat.h of them should' have
been supplied with the reasons· for the supersession to enable them to make
written representation to the UPSC.
Dismissing the appeal to this Court,
HEID : per Beg J ., Mathew J. concurring : The mandatory prov1s1ons of
reg. 5(5) were not complied with. It was incum9ent on the Selection Committee to have stated reasons in a manner which V.'ould disclose how the record
of each officer superseded stood in relation to record of others who· were to
be preferred particularly as this is practically the only remainin.I!: visible safeguard against possible injustice and arbitrariness in making selections.
If that
had been. done. facts on service records of officers consiifered bv the Selection
committee would have been correlated to the
conclusions reached.
Reasons
arc the links between the materials on which certain conclusions are based and
the actual conclusions. They disclose how the mind was applied to the subject
798
SUPREME COURT REPORTS
,
[ 1974] 1 s.c.R.
matter for a decision wh7ther it was purely administrative or quasi-judicial.
They should reveal a rational nexus between the f.1cts considered and the concl us1ons reached. Only in this way could opinions or decisions recorded be
shown to be manifestlY: just ·and reasonable. It was not enough to say that
preference should be given because a certain kind of process was gone through
by the Selection Committe<>. · [820 C-E]
Associated Electrical Industries (India) Ltd., Calcutta v.
A.I.R. 1967 S.C. 284 and Collector of Monghyr & Ors. v.
Goenka & Ors., [1963] 1 S. C.R. 98, roferred to.
Its
Workmen
Kcshav Prasad
Per Mathew J : The High Court was wrong in saying that seniority was
the determining factor and tha~ it was only if the senior was found unfit that
the junior could be thought of for inclusion in the list. What reg. 5(2) meant
was that fo_r inclusion in the list merit and suitabjlity in all respectS should be
the governing consideration and that seniority should play only -a secondary
role. It was only when merit and suitability were roughiy equal ·that seniority
would be a determining factor, or, if _it was not fairly possible to make
an
assessment inter se of the merit and suitability of two eligible candidates and
come to .a firm conclusion, seniority would tilt the scale.
The purpose of an
annual revision or review was to make an assessment of.. the merit and
suitabi~
lity of all the then eligible candidates and make ~ fresh list of the
required
number of the most suitable candidates from among them.
When reg. 5(4) said
that the list prepared in accordance with reg. 5 (1) shall be reviewed or revised
every year, it really meant that there must be an assessment of the merit and
suitability of all the eligible members every year. Though the words used in
reg. 5(4) were "review" and "revision", in the process of review or revision, a
fresh assessment must be made of the merit and suitability of all the members
remaining in the previous list and all other eligible meJD,bers in the concerned
se.rvice. If the criteria for selection were merit and suitability from aolong all
the eligible members, then the field of selection must comprise of the entire
'category of eligible members of the service. Otherwise the selection would not
b' on the basis of merit and suitability among all the eligible members of the
Sta~e service. There was no reason to give a go-bye to th,e word ''all" in reg.
4( 1) as the High Court had done. If merit and suitability should determine
the choice and that seniority should hecome relevant only when merit and
suitability were roughly equal, it was only proper that the fiell of choice Ghould
include all the eligible members of the service.
When once the selection was
made on the basis of merit and suitability with due regard to seniority, the fact
that reg. 513) enjoined that the names must thereafter -be arranged according
to the·ir seniority in State service was a definite Pointer that the selection must
primarity be on the basis of merit and suitability. The whole schemt of· theregulations was to give preferential treatment to merit and suitability.
[801 C-D; 802 G; 803 ABD; 804 CD]
Sant Ram Sharma v. State of Raiasth.qn & anr. [1968] 1 S.C.R. 11
and
Mir Ghulam v. Union of India A.J.R. 1973 S.C. 1138, referred to .
. -
If the State Government could make an appointment under r. 9(2) of tl\e
Cadre Rules, there was no reason why it could not terminate it. The normal
rule was that a power of appointment carried with it the power to terminate the
appointment unless there was an express provision to the contrary. The enabJing
power Jodged in the Central Government to direct the termination of the appOint·
ment when a report had _been received did not mean that the State Govern·
ment was denuded of that power.
Rule 9(3) onlv shoW!d that when a report
was made under r. 9(2) the Central Government had power to_ dir.,ct the State
Government to terminate the appointment. This would show that the ~ower to
terminate the appointment_ rested with the State Government otherwise, there
was n-:. reason for sub·r. (3) of r. 9 to say that the Central Government might
direct the State Government to ter1· nate the apoointment The fact that the
State Government should terminate the appointment when the Central Government made the direction to do so.
uld be considered only as vesting a pow~r
to make the directiOn which it wo'uld not othe,rwise have but for the ) sub.role.
It did not me8.n that the State Govemm~nt would lose its power to . terminate
the appointment if the Central Government did not make a direction. The
vesting of the power in the. Central Government to give a binding direction did
not take away the pawer of th'!_ State Government as appointing authority toterminate the appointment. (805 H; 806 A-CJ
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UNION v. M. L. CAPOOR (Mathew, !.)
799
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Inclusi~n of a _name. in the sele~t list at best, c<;>uld give a per~on only an
mchoate _ right -ror appointment dunng the year which the select list would be
current. When that period was over he had no right to be included in the select
list for th.e neXt year. He had only a right to be considered for inclusion in it.
It was not possible to lay down aS a general proposition that whenever a selection was made on the basis of merit and suitability with due regard to seniority
notice to a senior would be required if he was proposed to be passed over in
favour of a junior on the ground of his greater merit and suitability. It would
not be expedient to extend the horizon of natural justice involved in the audi
alterant. r;arteni rule to the twilight zone _of mere expectations, however,
great
they might be. [806 FG; 807 EF]
Per Beg. J : The correct view in conformity with the plain meaning, of words
used in the relevant rules was that the 'entrance' or inclusion test for a
place on the select list, was competitive and comparative applied to all eligible
candidates and not minimal like pass marks at an examination. The Selection
Committee had an unrestricted choice of the .best
available
talent,
tram
amongst eligible candidates,
determined by reference to reasonable criteria
applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority was the governing factor. A simple
reading of reg. 5(2) clearly indicated this to be the correct view. The required
number had to be selected by a comparison of merits of ~11 the eligible candidates of each year. But in making this selection seniority 1nust play its
due
role. Seniority would, however, only be one of the several factors affecting
assessment of merit as comparative experience in service should be. There could
be a Certain number of marks allotted for purpose of facilitating evaluation, to
each year of experience gained in the service.
When the required number for
the lis.t \Vas thus chosen, the respective roles of seniority and exceptional merit
would be governed by reg. 5(3). [817 G-H; 818 AB]
[His lordship did not consider it necessary to decide the questions
(i)
whether the State Government exceeded its powers in reverting the respondents
and (ii) ·whether the c6ncepts of justice, fairplay and reason required an opportunity being given to the respondents before the proposed supersession.]
Clv!L APPELLATE JURISDICTION : Civil Appeal No. 695 of 1971.
From the judgment and decree dated 27-3-1969 of the Allahabad
High Court in Writ Petition No. 2771 of 1968.
CIVIL APPEALS Nos. 614-617 of 1971.
From the judgment and Decree dated the 27-3-69 of the Allahabad
High Court at Allahabad in W.P. Nos. 1330 and 2771, 766 and 767
o( 1968, respectively.
L. N. Sinha, Solicitor General for India, P. P. Rao and S. P.
Nayar, for the appellant (in C.A. No. 695/71).
0. P. Rana, for the appellant (in C.As. 614-617/71 and for resoondents Nos. 2, 3, 6 and 7 in C.A. No. 605/71).
.
M. C. Chagla, R. A. Gupta and J. P. Goyal, for respondent No. l
(in C.A. Nos. 695 and 616/71)
R. A. Gupta and J. P~ Goyal for respondent No.
1 (in
C.A.
·No. 615/71).
R. K. Garg and S. C. Aggarwal, for respondent No. 1 (in C.A.
No. 617 /71).
The Judgments of the Court were delivered by
MATHEW J. I am in full agreement with the conclusion reached
by. my ieam~d brother and th~ reas?'ls for it. !n vi~w o~ the _importance of certain questions which anse for cons1derat10n m tlus case,
I think it meet that I should express my views upon those questions.
11-L392Sup.Cl/74
800
SUPREME COURT .l\EPORTS
[ 1974] 1 fi.C.R.
The first question for consideration is whether the }ii~ Coutt .w.as
right in it& interpretation of Regulation 5 (2 ~ of the lnrtian Adhi!mstrative Service/Indian Police Service (Appomtment by
Promot10n)
Regulations 1955 (hereinafter called the "Promotion Reguiations")
framed und~r sμb-rule ( l) of rule 8 of the Indian Aciministrativ.e ~er
vice Indian Police Service (Recruitment) Rules,
1954
(heremarter
called the "Recruitruent Rules") that se!liority should be the dofnina·
nant factor for making selection for inclusion in the list to be prepared
under Regulation 5 ( 1) and that merit and suitability are only of secondary importance.
:Regulations 4 and 5 of the Promotion Regulations read :
"4(1) Each Committee shall meet· at intervals not exceedi.1g one year and cousider the cases of all substantive
members of the State Civil/Police Service who on the first
·day of January of that year, had completed not less than
eight years of continuous service (whether officiating or
substantive) in a post of Deputy Collector/Deputy Superintendent of Police.
(2) Notwithstanding anything contained in sub-regulation ( 1), the Col1)ll1irtee shall not ordinarily consider the
cases of the members of the State Civil/Police Service who
have attained the age of 52 years on.the first day of January
of the year in which the meeting of the Committee is held:
Provided that a member of the State Civil/Police Service
whose name appears in the Select list in force immediately
before the date of the meeting of the Committee shall be con,
sidered for inclusion in the fresh select list to be prepared
by the Committee even if he has in the meanwhile attained
the age of 52 years.
5 ( 1). The Committee sha]J prepare a list of such members
of the State Civil/Police &"vice a~ satisfy the condition specified in regulation 4 and as are held by the Committee to be
suitable for promotion to the service. The number of members of the State Civil/Police Service included in the
list
shall not be more than twice the . number of substantive
vacancies anticipated in the course of the period of twelve
~onths commencing from the date of the preparation of the
hst.
(2) The selection for inclusion in such list shall be based
on .m~rit and suitability in all respetcs with due regard to
sen1or1ty.
·
(3) The names of the officers included in the list shall
be ll!ranged in order of seniority in the State Civil/Police
Service:
Provid~d th~t any juni?r officer who in the opinion of
the Committee 1s of exceptional merit and suitability may be
assig~ed a place in' the list higher than that of officers senior
to him.
·
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( 4) The list so prepared shall be reviewed and revised
every year.
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UNION v. M. L. CAPOOR (Mathew, J.)
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( 5) If in the process of selection, review or revision it
is propos<;d to supersede any member of the State Civil/
Police Service the Committee shall record its reasons for the
proposed supersession·" ·
Now, ui1der Regulation 4(1) it is the duty of the Committee to
consider in every . year the cases of all substantive members of the
State Civil/Police Service who on the first day of January of that year,
had completed .not Jess tlmn eight years' of continuous .service (whether
officiating or substantive) in a post of Deputy Collector/Deputy
Superintendent of Police.
Regulation 5 (1) makes it obligatory that the Committee shall
prepare a list of such members as satisfy the condition in Regulation
4 and as are held by the Committee to be suitable for promotion to
the service.
;\nd, when Regulation 5(2) says that the selection for inclusion
in the list shall be based on merit and suitability in an respects with
due regard to seniority, what it means is that for inclusion in the list,
merit and suitability in all respects shsould be the governing conideration and that seniority should play only a secondary role. It is only
when merit and suitability are roughly equal that seniority will be a
determining fadtor, or if it is not farily possible to make an assessment
inter se of the merit and suitability of two eligible candidates and come
to a firm conclusion, seniority would tilt the scale. But, to say, as the
High Court has done 'that seniority is the determining factor and that
it is only if the senior is found unfit that the junior can be thought cf
for inclusion in the list is, with respect, not a correct . reading of
Regulation 5(2). I do not know what the High Court would have said.
had Regulation 5(2) said: "Selection for inclusion in the select list
shall be based on seniority with due regard to merit and suitability".
Would it have said that the interpretation to be put upon the hypothetical Sub-regulation (2) is the same as it put upon the actual Sub·
regulation ?
As I said Regulation 5 ( 1) makes it obligatory that the Committee shall prepare a list of such members who satisfy the condition laid
down in .Regulation 4 and. as are suitable for promotion. Now, who
are the members who satisfy the condition laid down in Regulation 4 ?
All substantive members of the State Civil/Police Service who had
completed not less than eight years' continuous service.
And, who
are the members who are suitable for promotion? Those members
who were selected on the basis of their 'merit and suitability with due
regard to seniority under Regulation 5 (2). No doubt, the number of
members included in the list shall not be more than twice the number
of substal\tive vacancies expected to arise in the course of a period of
twelye months from the date ot the preparation of the list. The .list
so prepared has to be sent to the Union Public Service Commission
under Regulation 7 (2) by the State Government along with the
records of the mem]?ers of the State Civil/Police Service included in
the list as well as the records of all the members of the State Civil/
Police Service who are proposed to be wperseded by the recommendation made in the list and the reasons as recorded by the Committee for
802
SUPREME COURT REPORTS
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[ 19]4 J 1 s.c.R.
, I
the proposed supersession by any member of the State Civil/Police
A
Service and the obs,ervat~on of the Sta~e Governn_ient on the re~om
mendation of the Conuruttee. Regulation 7 provides that the Commission shall consider the list prepared by the Comptittee along with
the other docnmt;llts J\eceiv:ed from the State Governmen.t and unless
· it considers any change necessary, approve the list.
1~tuj,1 if t!'e
Commission considers it n~cessary to make any changes m the hst
received from the State Government, the Commissoin shall inform the" · B
State Government of the .changes proposed and after taking into
account the comments, if any, of the State Government, may approve
the list finally with such modification, if any, as may in its opinion, be
just and proper.
'•:·' The list as finally approved by the Commission shall form the
select list of the members of the State Civil/Police Service.
The Regulation also states that the list shall ordinarily be in force
until its review and revision effected under Regulation 5 ( 4) is approved
under Regulation 7(1) or, as the case may be, finally approved under
Regulation 7(2). The proviso to Regulation 7(4) states that in the
event of a grave lapse in the conduct or performance of duties on
the part of any member of the State Civil JPolice Service included In
the> Select List, a special review of the selec,t list may be made at any
time at the instance of the State Government and the Union Public
Service Commission may, if it so thinks fit, remove the name ·of such
. members of the State Civil/Police Sezyice from the Select . List.
Now, Regulation 5 ( 4) makes it clear that, as far as possible, there
should be a revision or review of the select list every year. The
purpose of an annual revision or review is to make an assessment of
the merit and suitability of al! the then eligible candidates and make a
fresh list of the required number of the most suitable candidates from
among them.
In other words, the purpose of the annual review or
revision of the select list is to prepare a list and to include therein the
required number of the most suitable persons from among all the then
eligible candidates.
Proviso to Regulation 4(4) makes it abundantly clear that there
must be a fresh select list every year by making a review or revision
of the previously. existing select list.
By Regulation 4(2), a person
who has attained the age of 52 years shall not be considered as an
eligible candidate notwithstanding the fact that he is a substantive
member of the. service. Then the proviso to Regulation 4(2) says that
if his name has been entered in the select list for the previous year,
he might be considered for inclusion in the fresh select list for the next
yeai', even if he has passed the age of 52 years. When Regulation
5 ( 4) says that the list prCJ!ared in accordance with Regulation 5 ( 1)
shall be reviewed or revised every year, it really means that there must
be an assessment of the merit and suitability of all the eligible members
every year. The paramount duty cast upon the Committee to draw up
a liet Wllk.r lteplatioo 5(1) of such members of the State CiviljPolice
Service u "tilfy the condition under Regulation 4 and as are held by
the Committee to be iuitable for promotii>n to he service would be
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UNION v. M. L· CAPOOR (Mathew, J.) .
803 ·(i
discharged only if the Committee makes the seleciion from all the
eligible candidates every year.
I see no reason to give the go-bye to the word 'all'· in Regulation
as the High Court has done. I preceive no reason, ·when Regulation 4( 1) uses the word 'all' why I should not give effect to it; I am
unable to see the anomaly which would result if the word is retained. If
merit and suitability should determine the choice and that seniority
should become relevant only when merit and suitability are . roughly
equal, it is only proper that the field of choice should include all the
eligible members of the State _Civil/Police service. It is rather curious
that the High Court should have thought the use of the word 'all' in
Regulation 4 ( 1) to be "loose or inaccurate" because inapt e,xpres•
sions like ."the fresh select list", "the list so prepared" have peen used
in the proviso to Regulation.4(2) and in Regulation 5(4) respectively.
Assuming for the momellt that these expressions are inapt in the
context, I do not think that a sufficient reason for disregarding the
effect of the·word 'all' in Regulation 4(1). On the other ·hand, I
think it would have been anomalous if the field of choice had not em·
braced the whole category of the eligible members of the State Civil/
Police Service, as the basis of the selection. for inclusion in the list
is primarily merit and suitability. Nor does the fact that the number
of members to ba selected for inclusion in th.e list is limited by the
number of vacancies expected to arise in the succeeding year a sufficient ground, as the High Court has thought for limiting the field of
choice.
Though the words used in Regolation 5 ( 4)
are 'review' and
'revision\ in the process of review or revision, a fresh assessment .must
be made of the merit and suitability of all the members remaining in
the previous list and all other eligible members in the State Civil/
Police Service. If the criteria for selection are merit and suitability ·
from among all the eligible members, then the field of selection must
comprise of the entire category of eligibfo members of the service.
Otherwise, the selection will not be on the basis of merit and suitability
from among all the eligible members of the State service. In other
words the inclusion of the name of a member in the select list for a
year ~ill not be an entitlement for inclusion in the select list for the
suceeding year. A fortiori a member who has been assigned a rank
in the select list for a year can have no claim for the same rank in
the next year.
..
Mr. Chagla, appearing for one of the respondents, contended that
there is a distinction between promotion'. and selection. He said that under rule 9 of the Recruitment Rules, 25 per cent of the posts in the
Indian Administrative Service/Indian Police Service are reserved for
the members of the State Civil and Police Services to be filled
by
promotion and that this will have no meaning; unless the promotions
are made on the basis of seniority subject to fitness. According to counsel, though merit and suitability would be the criteria for selection
frcm the open market for the remaining 75 per cent, for prom..ition to
the 25 per cent quota from the members of the State service, seniority
subject to fitness should be the sole criterion. I am unable to unders:2nd the logic of the distinction when considering the meanin:i; to be
804
SUPREME COURT REPORTS
[ 1974 J 1 s.c.a.
put upon Regulat:on 5(2): It is true that 2S per cent of the . P?St&
life reserved for being. filled by promotion and the rest by. selection,
but what follows?
Is it nC<:¢Ssary that promotion should be «?n the
basis ·of seniority subject tO fitiiess and not· on the basis of ment ~I!d
slliiability wltli dlie regard to seniority. '!'he very id~a of a Sflec~?•
froih an the effgible cimdidates on the basis of ment and smtabibty
with d.ue regard to semorify under Regulation 5(~) is to find out the
members who are suitabfe to be· promoted for filling the 25 per cent
quota reserved to the two State services. The mere fact that the
word 'promotion' is used in rulti 9 of the Recruitment Rules would not
indicate that selection from among the eligible members of the State
services for promotion should be on the basis of seniority subject
to fitness.
Regulation 5(5) provides that if in the process of selection, re~i:w
or revision it is proposed to supersede any member of the State Cm!/
Police Service, the Committee shall record its reasons for the proposed
supersession.
Regulation 5(3) says that the name~ of the officers included
in
'
the list shall be arranged in the order of Seniority in State service. The
provision might not have been necessary if the selection :was on the
basis of seniority subject tO the condition of fulfilling the criteria of
merit and suitability, 1 In other words, when once the selection is made
on the basis of merit and suitability with due regard to seniority, the
fact that Regulation 5 (3) enjojps that the names must thereafter be
arranged according to their seniority in State service is
a definite
pointer that the selection must .primarily be on the basis of merit and
suitability. And even when arranging the names of officers according
to the order of seniority in State service, exceptional me1it is given
preferential treatment, as the proviso says that a junior officer who is
«?f ex_ceptional merit and suitability must be assigned Ii place in the
!ht hlgher than that of officers senior to Wm. This is an unmistakable
iudicatioa to show that the whole scheme of the Regulation is to
give preferential treatment to merit and suitability.
Iu S'!nt Ra"! ~harma v. St"te of Rajasthan and Another.(') this
COurt said that 1t 1s a well established rule that promotion to selection
gra_de~ or selection posts is to be based primarily on merit and not on
semonty and that the principle is that· when the claim of officers to
seiection posts is under consideration. seniority sjiould not be reaarded
except ":be~e tb_e merit of the '?fficers is judged to be equal and no .
oth:r cntenon 1s therefore avat!able. These observations were relied
, on m N. P: Mathur and Others v. State of .Bi,har and Others(2) for
u~erstandmg the scope of the rule under ¢onsideration in . that case
which ran as follows:
";\ppointment to the Selection Grade and to posts
carrying pay above the time scale o! pay in the Administrative Service shall be made by seld:tion on merit with
due regard to seniority."
(Rule 3(2-A) of the Indian Administrative Service
(Pay) Rules. 1954)
(I) [1968[ I S. \;. R. 111, at 118.
(2) A. I. R. 1972 Patna 93.
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UNION V. M. L• CAi'OOR (Mathew,/.)
805
rhe Court said:
'
"It is agreed on all hands that the post of Chi~f Secretary is a selection post from the officers in the super-time
scale of pay and it is also
agreed that rule . 3 (2-A)
of the
Pay
Rules
applies.
In
th~e
circumstance~,
it is clear that selection to the post of Chief Secretary will
depend on merit, irrespective of seniority. In my opi!lit'n,
the principle laid d~wn by their Lordships of_ the Supreme
Court in Sant Ram Sharmas case (AIR 1961 SC 1910)
makes this position clear".
In Mir Ghulam v .. Union of India(1i) this question was incidentally
considered that it would appear fyom the observations in the, judgment
that 'the prep1ration of the list under Regulation 5 (1 ) must primarily
be on the basis of merit and. suitability, seniority being only one of the
relevant considerations in making the seler.tion.
•.!
The next question is whether the State Government was competent to terminate the officiating appointments of the respondents, on
the basis that, although their names were in the select lists from 1962
onwards, they were removed from the select list prepared in 1968,.
Rule 9 of the Indian
Administrative
Service/Police
Service
(Cadre) Rules, 1954 provides:
"9 (1) A cadre post may be filled by a person who is not a cadre
officer if the State Government satisfied :
(a) That the vacancy is not likely to last for more than
three m"nths; or
(b) that there is no suitable cadre officer available for
filling the vacancy.
(2) Where in any State a person other than a cadre
officer is appointed to a cadre post for a period exceeding
three months, the State Government shall forthwith report
the fact to the Central Government together with
the
reasons for making the appointment.
(3) On ri;ceipi of ·a report under Sub-rule(2) or otherwise, the Central Government ·may dire~t that the State Gove
ernment shall terminate the appointment of such person and
appoint thereto a cadre officer, and where' any direction is so
issued, the State Government shall accordingly give effect
thereto."
The High Court was of the view that the Central Government alone
was competent to terminate the appointment of the respondents as
the power in that behalf was vested in the Co;ntral Government only.
If the State Government can make an appointment umjer. rule
9(2) of the Cadre Rules, there is no ,reason why it cannot termiilllte it.
The normal rule is that a power of apPOintment carries with it the
~owcr to terminate the appointment unless there is an express provis10n to the contrary. The enabling power lodged in the Central
(I) A. I. R. 1'973 SC 1138.
806
SUPRllME· COUllT llEPOllT5
[ 1974] l s.c.a;
Government to . direct the termiliation of !ne appointment when a
report has been received does not mean that the State Government is
denuded of ·that power. R;ule 9(3) only shoWs that when a report is
,made· under rule 9 ( 2), the Central Government has power to direct
the State Government to teiminate the appointment. This would show
that the power to terminate the appointment rests with the State .Gov·
ernment; otherwise, there is no reason for sub-rule (3) of rule 9 of
the Cadre Rules to say that the Q:ntral Government may direct the
State Governmeni to terminate the appointment. The sul>-rul~ could
very well have said that the C',entral Government may terminate the
appointment.
The fact th::it the State Government should terminate
the appointment when the. C',entral Government makes the direction
to do so, can be considered only as vesting a power. to make the
direction which it would not otherwise have but for the sub-rule. It
does not mean that the State Government wouid lose its power to terminate the appointment if the Central Government does not make a
direction. In other words, the vesting of the power in the Central
Government to give a binding direction does not take away the power
of the State Govermn~nt as appointing authority to terminate
the
appointment. In the light of our conclusion, I do not think it necessary to express any opinion on the question whether the remov:tl of
the names of the respondents from the select list of 1968 was per se
sufficient for the State Government to terminate their officiating
"appointment" to the Cadre posts.
It was contended on behalf Qf respondents that before they were
superseded, notice should have been given to them and their explana-
"'tion asked for. It was argued that rules of natural justice required
that before the name of a member is removed from the select list, he
should be given notice to show canse why his name should hot be
removed and unless that is done, the decision to remove his name
from the select list would be bad.
I am not impressed by the argument that rules of natural justice
require that when a senior is proposed to be superseded, he should
be given notice and his explanation· called. Inclusion of a name in
the select list, at best, can give the person only an inchoate right for
appointment during the year whea, . .the select list would be current.
When that period. is over, .he has no ri&ht to be included in the select
list for the next year. He has only a right to be considered for iri·
clusion in it. Iri other words, inclusion of· a person's name in the
select list in a year does not give that person a vested right to have his
name included in the select list for the succeeding year. As al!:eady
stated, a fresh list will have to be prepared for the succeeding year
after c'onsidering the merit and suitability of all the eligible candidates.
Regulation 5 ( 5) of the Promotion Regulations makes it clear that
there can be supersession when making the selection. or in reviewing
or revising the select list. When making a selection for the first time,
the expr.ession "supersession" ca.n mean only passing over the claim
of a senior according to the State service for inclusion in the list, for,
ex hypothesi, no previous select list exists. In that context, the word
"supersession" can denote only the selection of a junior in preference
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UNION v. M. L. CAPOOR (Beg, /,)
807
to a senior according to their rank in the State service. There is · nc:>
reason to give a different meaning to the expression in the .context of ,
review or revision of the select list The expression
"supersession~·
does not mean removal of the ll3II!C of a person whose name appeared
in the previous list from the subsequent list or his demotion iJ! rank in
the subsequent list. As there is to be a fresh assessment of merit and
suitability when a fresh list has to be drawn up, and that, as far as
possible, has to be done every year, the word "supersession" can only
mean. overlooking the seniority in the State service for inclusion in
the list. I should have thought the expression "supersession" in
the context is quite inapt, as it has overtones that senioirty per se has
some claim for preferential treatment. When you talk of supersession,
it normally means that. the person superseded has a preferential claim.
But, ex hypothesi the selection is primarily on the basis of merit and
sUitability. Therefore, though strictly speaking, there can be no question of supersession when a senior is passed over, as the selection is
based primarily on merit and suitability, the expression was used
probably to indicate that seniority is a factor of great weight to be
taken into consideration for inclusion in the select list. Whate.ver that
be, I do not think that in making selection or in reviewing or revising
the select ,Jist, as a fresh list has to be prepared on the basis of merit
and suitability of all eligible candidates including those whose names
remain in the previous list, with due regard to seniority, there is no.
question of notice being given to a senior when he is proposed to be
passed over. No vested ri.,ght is involveq; no interest recognized and
protected by law is in jeopardy. I am not prepared to lay down as a
general proposition that whenever a selection is made on the basis of
merit and suitability with due regard to sertiority, notice to a senior
will be required if he is proposed to be passed over in favour of a junior
on the ground of his greater merit aad suitability. No precedent has
been cited in support of the proposition. On a balance of all . the!
relevant factors, I do not think it expedient to exte)ld· the horizon of
natural justice involved in the audi alteram partem rule to the twilight
zone of mere expectations, however great they. might be.
.
BEG, J.-The five appeals .before us-one by the Union of India ~d
four by .the State and the Chief Secretary to the Govt. of Uttar Pradesh
-are directed agai~t. a common judgment given by Division Bench
of the Allahabad High Court, on two Writ Petitions, one by M. L.
Capoor and .the other by K. N. Misra, and two special appeals, one
by Ganesh Sm~ Seth an~ !he other by Basant Kumar Joshi. As all
t~e cases, resting upon s1m1lar facts, raised common questions of Jaw
t e:y were heard together and disposed of by a · common judgment '
wb•ch has come up before us on grant of certificates of fitness of the
808
Sl!PRF.ME COURT Rl!POltT$
I 1974 l 1 s.c.11.
cases oy the Allahabad High. Court under Article 133(1) (c) of the
Ooostitu~on of India for appeal to this 'Court.
A
M. L: Capoor ad K. N. Misra have been meiaben ol' ~ U.P.
Stat.c P'olke Service who were brought on a select lilt .for promotion
to<·tWe Indian Police Service in 1961 and 1962 since when they
officiatrd on cadre posts of the Indian Poli~e SerVice as Superintendents
of Police for a number of, years. 'Ibey were eligible to be considered
fer promotion under Regulation 4 of Indian Police Service (Appoint8
ment by Promotion) Regulations, 195.5, and cam!' on the select list
~
the procedure for selection by a Select Committee confirmeil
by the J]nion Public Service Commission, and, finally approved by the
State GOvt. The whole procedure is set out in Regulations 4 to 7 of
the Indian Police Service (Appointment by Promotion) Regulations,
1955, under which the select lists are to be revised and reviewed every
year. Both M. L. Capoor and K. N. Misra continued on the select c
list until tl!.e• list for 1968 was prepared in December, 1967, when they
were suddenly dropped from thi& list. Consequently, they filed petitions
under Art. 226 of the Constitution in the Allahabad High Coyrt for
quashing orders of alleged reversion. These Writ Petitions \Vere referr~ to a Division Bench which decided thC!!J with che special appeals
of Gamdl Singh Seth and Basant Kumar Joshi involviag the same
questions of law on similar-facrs.
·
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Ganesh Singh Seth and BasaJilt Kumar Joshi have been members
of the U.P. Civil (Executive Servlc¢ }~ They were brought on the
select list of the Indian Admini$riUjye Service in 1961 and
1962,
under Regulations 4 to 7 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955.