THE HON'BLE MR JUSTICE GHULAM MOHAMMED AND THE HON'BLE SRI JUSTICE K.S.APPA RAO
W.P.No.32882 of 2011
28.03.2012
Irrinki Srinagesh.
State of A.P., rep. by its Chief secretary to Government, General
Administration Department, Secretariat, Hyderabad and others.
Counsel for the petitioner: Sri N. Ashwani Kumar
Counsel for respondent Nos.1 to 3: Advocate General Counsel for respondent
Nos.4 to 6:Standing Counsel for Central Government.
Counsel for respondent Nos.7 to 10: Sri B. Adinarayana Rao
Counsel for respondent Nos.11 to 13 Sri M.S.Ramachandra Rao
Counsel for respondent No.14: Sri P. Venugopal.
Counsel for respondent Nos.15 & 16: Sri Balanaga Srinivas
< Gist:
> Head Note:
? Cases referred:
1 2002(3) ALD 648 (DB)
2 2002(1) ALT 523 (DB)
3 2002(6) ALD 264 (DB)
4 (1999) 6 SCC 34
5 (2008) 1 SCC 362
6 AIR 1988 SC 2073
7 (1997) 3 SCC 261
ORDER (Per the Hon'ble Sri Justice Ghulam Mohammed)
This writ petition is filed assailing the legality and validity of the interim
order dated 07.12.2011 passed in O.A.No.1183 of 2011 by the Central
Administrative Tribunal, Hyderabad Bench, Hyderabad (for short 'the Tribunal').
2. The brief facts are that the petitioner, who secured 26th rank in Group-I
Services, 1993, was appointed as Municipal Commissioner Grade-II through Andhra
Pradesh Public Service Commission Group-II, and he joined in service on
10.04.1996 and worked as such till 10.12.1997. Later, he secured 2nd rank in the
State in Group-I Services, 1995 and was appointed as Commercial Tax Officer and
thereafter, he was promoted as Assistant Commissioner, Commercial Taxes in
December, 2005 and is working as such. He states that his basic pay as
Commercial Tax Officer is on par with the basic pay of Deputy Collector i.e.,
Rs.10845-25600 as per PRC 2005 and he is now in the pay scale of Rs.14600-29250
which is payable to the Gazetted Officers at the 3rd level of hierarchy. He
states that he is below 54 years of age and is working in the post above the
cadre of Deputy Collector and he completed continuous service of 14 years and is
eligible for appointment to the Indian Administrative Service (IAS) by
selection. He states that he has been graded as 'outstanding' throughout his
service by the Commissioner of Commercial Taxes and also received
awards/commendation certificates and he was recently recommended for grant of
incentive award for 2010-2011 for his outstanding work and he identified and re-
wrote in entirety the tax liability of M/s.Nuclear Fuel complex (NFC) ,
Hyderabad, unearthing huge undisclosed turnovers and bringing them to tax net
and collecting Rs.188.15 crores till date.
The petitioner further states that the Central Government in exercise of power
under Section 3(1) of All India Services Act, 1951 framed Indian Administrative
Service (Recruitment) Rules, 1954, in consultation with the State Government.
Rule 4 mentions about the method of recruitment to the service. Service is
defined under Rule 2(e) as 'Indian Administrative Service'. Under Rule 4,
recruitment to IAS is by 3 methods i.e., (a) by a competitive examination
(direct recruitment) (b) by promotion of a member of State Civil Service and (c)
by selection from the persons, who are holding a post in substantive capacity, a
Gazetted post other than "State Civil Service'. Rule 7 deals with the procedure
of Direct Recruitment. Rule 8(1) deals with promotion of persons holding 'State
Civil Services' in accordance with the Regulation to be issued by the Central
Government. Rule 8(2) deals with selection of persons of 'outstanding ability
and merit' serving in connection with the affairs of State and who is not a
member of 'State Civil Services, but holding a Gazetted post in a substantive
capacity' in accordance with the Regulation to be issued by the central
Government. The percentage of posts earmarked for each source as provided under
Rules 4, 8 and 9 of Indian Administrative Service (Recruitment) Rules, 1954 is
as under:
i. By direct recruitment;
ii. By promotion of a substantive member of a state civil service with a
limitation that it shall not at any time, exceed 33 1/3 per cent of the number
of senior posts under the State Government, Central Deputation Reserve, State
Deputation Reserve and Training Reserve in relation to that State or to the
group of States, in the Schedule to the Indian Administrative Service (Fixation
of Cadre Strength) Regulations, 1955;
iii. By selection, in special cases from among persons who hold in a substantive
capacity gazetted post in connection with the affairs of the State and who are
not members of a State Civil Service. The number of posts earmarked for
appointment in this category shall not exceed at any time fifteen per cent of
the number of persons recruited under (b) above.
The petitioner further states that the Central Government in exercise of power
under Rule 8(2) of Recruitment Rules, 1954 issued IAS Service (Appointment by
Selection) Regulation, 1997 in
super cession of 1956 Regulation and these Regulations are meant for
consideration of Non State Civil Service Officers to IAS cadre by selection.
Under Regulation 4, the State Government has to sent proposals to the committee
the names of persons, who do not belong to the 'State Civil Services' but
serving with the affairs of the State with the following conditions.
i. Those who have been of outstanding merit and ability;
ii. Holds a Gazetted post in a substantive capacity;
iii. Who has completed 8 years of service under the State Government by 1st day
of January of the year of consideration, however such of those who are holding
the post which has been declared equivalent to the post of Deputy Collector in
the State Civil Service.
By virtue of the power conferred under Regulation 4(1)(iii), the State
Government issued G.O.Ms.No.634 dated 24.08.2007 declaring that the posts under
the State Government in all the departments with the pay scale of Rs.10,845-
22,955 and above (revised scale of pay 2005) are equivalent to the post of
Deputy Collector. As per PRC 2010, the corresponding pay scale is Rs,27,000-
51,760. The petitioner being a direct recruitee started with the pay scale
attached to the post of Deputy Collector and as of the year 2010 his pay scale
was Rs.27,000-51,760. The first respondent vide proceedings dated 17.05.2010,
requested all the departments to send the list of eligible candidates, who have
fulfilled the eligibility criteria as mentioned in G.O.Ms.No.634 dated
24.08.2007, to enable the State Government for consideration of eligible Non-
State Civil Services Officers for selection to IAS for sending the same to the
Committee for final selection as contemplated under IAS (Appointment by
Selection) Regulations, 1997. For not sponsoring his name to the Committee in
spite of his representation dated 03.07.2010, the petitioner filed O.A.No.1095
of 2010 before the Tribunal, which in turn, disposed of the same on 22.10.2010
directing the third respondent herein to consider the said representation in
accordance with the rules and existing instructions. In pursuance of the said
orders, the third respondent has considered the said representation and rejected
the same vide proceedings dated 25.10.2010, indicating that having regard to the
number of officers who would qualify under the eligibility norm prescribed under
Regulation 4, it was decided that only the names of those eligible officers in
the cadre of Additional Commissioner and Joint Commissioner of Commercial Taxes,
who are the senior most among the eligible candidates with the service of more
than 20 years, were considered for nomination. It was further stated that if
the nomination of the petitioner is considered being an Assistant Commissioner
(Commercial Taxes), 90 other officers are also required to be considered and in
view of the policy adopted, of merit cum seniority and ability, it was decided
that the case of the petitioner would not be considered for nomination from the
Commercial Taxes Department for inclusion in the select list of the candidates
for appointment to IAS by selection for the year 2010. Aggrieved by the same,
the petitioner filed O.A.No.1154 of 2010 before the Tribunal, which in turn,
gave an interim direction on 22.11.2010 to the third respondent to send the name
of the petitioner to the second respondent through him to the first respondent
for consideration, provided he is otherwise eligible for consideration as per
the selection regulations. Aggrieved by the same, the official respondents filed
W.P.Nos.30691 and 30699 of 2010 and unofficial respondent, who has got similar
grievance, filed W.P.No.32290 of 2011 against the order dated 20.12.2010 passed
in O.A.No.1291 of 2010 filed by her. By common order dated 31.12.2010, this
Court allowed W.P.Nos.30691 and 30699 of 2010 and dismissed W.P.No.32290 of
2011. Later, I.A.No.1154 of 2010 was closed on 28.09.2011 on the ground that the
cause of action does not survive since the selection pertains to the year 2010.
The petitioner further states that in 2011, as there are four vacancies of IAS
meant to be filled up by Non State Civil Service Officers, the Government issued
G.O.Ms.No.524 dated 27.08.2011 enlarging the scope to bring in its ambit all
officers in Group-I posts, who have completed 8 years in the Basic Pay of the
Deputy Collector in addition to the Officers of other departments, who are in
the scale of pay of Deputy Collector, and the petitioner is fully eligible and
qualified to be considered for appointment to IAS as per the said G.O. In
pursuance of said G.O., the first respondent vide proceedings dated 30.08.2011
requested all the departments to send the names of eligible candidates for
consideration of the claim of Non State Civil Service Officers at State/GAD
level for sending the final list to Union Public Service Commission (UPSC) for
final selection of four candidates. Though initially Head of the Department
sent only four names of candidates vide proceedings dated 23.09.2011, later, it
has sent a list of 25 other Officers, who includes the petitioner, but the
petitioner was denied for selection due to procedural lacunae. Feeling aggrieved
by the action of respondent Nos. 1 to 3 in not selecting him as IAS from Non
State Civil services Officers, the petitioner filed O.A.No.1183 of 2011 before
the Tribunal, which in turn, by the order impugned declined to grant interim
direction to consider the case of the petitioner for promotion as IAS, but made
it clear that the final selection would be subject to the outcome of the O.A.
Aggrieved by the same, the petitioner filed the present writ petition, in which,
he filed W.P.M.P.No.40865 of 2011 seeking to direct the 5th respondent not to
finalise the selections for IAS from Non State Civil Service Officers for the
year 2011. This Court vide order dated 14.12.2011 gave interim directions as
prayed for in W.P.M.P.No.40865 of 2011.
3. During pendency of this writ petition, W.P.M.P.Nos.41812, 42228 and 42549
of 2011 and 1629 of 2012 are filed seeking to implead the petitioners therein as
party respondent Nos.7 to 10, 11 to 13, 14 and 15 & 16respectively. This Court
ordered all these petitions on various dates. Some of the impleaded respondents
allege that the State Government recommended their names and the selection
process has to be completed by the end of December, 2011, filed vacate petitions
seeking to vacate the aforesaid interim order passed by this Court.
4. The first respondent filed counter stating that as per Regulation 4 of the
IAS (Appointment by Selection) Regulations, 1997, the State Government shall
consider the case of a person not belonging to the State Civil Service but
serving in connection with the affairs of the State who,
(i) is of outstanding merit and ability; and
(ii) holds a Gazetted post in a substantive capacity; and
(iii) has completed not less than 8 years of continuous service under the State
Government on the first day of January of the year in which his case is being
considered in any post which has been declared equivalent to the post of Deputy
Collector in the State Civil Service and purpose the person for consideration of
the Committee shall not exceed five times the number of vacancies proposed to be
filled during the year.
Provided that the State Government shall not consider the case of a person who
has attained the age of 54 years on the first day of January of the year in
which the decision is taken to propose the names for the consideration of the
Committee.
It is stated that the object behind this rule is to create an opportunity for
the officers who are in Non State Civil Officers for entry into IAS. It is
stated that the first respondent vide D.O.Letter dated 31.08.2011, called for
nominations from various departments in respect of outstanding and meritorious
candidates and those who held Gazetted posts in substantive capacity and have
completed not less than eight years of service as stipulated. In response to the
same, the Commissioner, Commercial Taxes sent initially the names of four
candidates vide letters dated 23.09.2011 and 26.09.2011 and subsequently, sent
the names of 25 candidates vide letter dated 30.09.2011, but as the said
proposals were not according to the guidelines issued by the Government vide
U.O.Note
dated 14.10.2011, the Commissioner, Commercial Taxes informed that the said
names should be sent as per the prescribed proforma along with their Annual
Confidential Report dossiers on or before 15.10.2011 and in reply to the same,
the third respondent vide letter dated 01.11.2011 informed as under:
"Generally, there will be 3 to 4 posts for non-SCS officers for promotion to
IAS. As per Government of India norms, the officers have to be called for
interview in the ratio 1:5. It means 15-20 officers have to be short listed
from all the departments for interview for IAS selection. Even if only those
officers who are having outstanding merit and ability are sent by all the
departments, there may be very large number of officers coming under zone of
consideration for short-listing 15 to 20 officers for interview. Such large
number of officers with limited number of vacancies for IAS and only single
criteria of outstanding merit and ability for short-listing may lead to
unhealthy competition among the officers. It is not desirable to create
environment for unhealthy competition.
1. Keeping this in view, this office decided to consider restricted number of
officer out of all officers with outstanding merit and ability based on
seniority and rank.
2. to consider officers in the rank of Additional Commissioners and Joint
Commissioners from top.
Based on these guidelines proposals were sent during 2010. Even during 2009,
the candidatures of the Officers in the rank of Additional Commissioners and
Joint Commissioners were only considered.
It is further stated in the counter that by issuance of G.O.Ms.No.524 dated
27.08.2011, the eligibility of the petitioner has not been changed and it does
not affect the petitioner in any way. It is further stated that the number of
names to be forwarded is within the powers of the Heads of Departments to
restrict the zone of consideration of the Officers up to a particular level as
upheld by this Court vide order dated 31.12.2010 in W.P.Nos.30691 of 2010 and
batch. It is further stated that the said order of this Court has been
questioned before the Supreme Court and no stay was granted therein. It is
further stated that because of the interim direction of this Court on 14.12.2011
in W.P.M.P.No.40865 in W.P.No.32882 of 2011, the Committee is not conducting the
meeting. It is also stated that the panel prepared by the State Government in
pursuance of the guidelines issued by the Union of India would expire by
31.12.2011 and if the interviews are not conducted before that date, none of the
candidates would get selected and the vacancies would remain unfilled.
5. Heard Sri D.V.Seetharama Murthy, learned senior counsel appearing on
behalf of the learned counsel for the petitioner, learned Advocate General
appearing on behalf of respondent Nos.1 to 3, learned Standing Counsel for the
Central Government appearing on behalf of Respondent Nos.4 to 6, Sri B.
Adinarayana Rao, learned counsel appearing for respondent Nos.7 to 10,
Sri M.S.Ramachandra Rao, learned counsel appearing on behalf of respondent
Nos.11 to 13 and Sri P. Venugopal, learned counsel appearing on behalf of
respondent No.14 and Sri V. Vedula Venkataramana, learned senior counsel
appearing on behalf of
Sri M. Balanaga Srinivas, learned counsel appearing for respondent Nos.15 and
16.
6. Sri D.V.Seetharama Murthy, learned senior counsel appearing on behalf of
the learned counsel for the petitioner contended that the Tribunal failed to
consider the aspect that subsequent to the judgment rendered by this Court in
W.P.Nos.30691 of 2010 and batch, the Government issued G.O.Ms.No.524 dated
27.08.2011 enlarging the scope of eligibility criterion that all the Officers in
Group-I post, who have completed 8 years in the pay scale of the Deputy
Collector in addition to Officers of other Departments, who are in the scale of
pay of Deputy Collector become eligible for promotion to the post of IAS. He
further contended that contrary to Regulations, G.O.Ms.No.524 and also the
letter dated 30.08.2011 issued by the first respondent requesting all the
concerned departments to send the list of all eligible candidates, the third
respondent had sent full particulars of only four candidates holding the rank of
Additional/Joint Commissioners in the prescribed proforma stating that they are
only suitable for promotion to the post of IAS among 29 candidates sent by him.
He further contended that the petitioner has got outstanding merit and is fully
eligible for promotion to the said post, but the Tribunal ought to have issued a
direction to the official respondents to consider his candidature. He further
argued that the Tribunal erred in not considering the import of the amendment to
the norms of equivalence brought in G.O.Ms.No.524 dated 27.08.2011 in contra
distinction with G.O.Ms.No.634 dated 24.08.2007 and the policy of the Government
under the amended G.O. being make available the opportunities for more number of
officers, the policy adopted by the third respondent by virtue of G.O.Ms.No.634
dated 24.08.2007 was no longer relevant and therefore, by virtue of the revised
policy contained in G.O.Ms.No.524 dated 27.08.2011, officers at Sl.Nos.16,18, 20
in the list of 20 officers forwarded to UPSC, would not have been
short listed but for the changed guidelines, implemented by
Co-operation Department, Backward Classes, Welfare Department and Stamps and
Registration Department while the same is not followed by Commercial Taxes
Department and the inconsistent stand of the various Governmental departments in
this regard clearly renders the State action as arbitrary and illegal. He
further contended that name of the petitioner is eligible to be forwarded for
consideration to the Government on the touchstone of Regulation 4 of Selection
Regulations read with the norms prescribed for selection by the Government
contained in its memo dated 30.08.2011 which referred to the revised norm
prescribed under G.O.Ms.No.524 dated 27.08.2011 and therefore, urged that non
passing of the interim order in the fact situation resulted in manifest
injustice to the petitioner and an irreversible situation qua the vacancies for
appointment by selection to IAS for the year 2011 and in the fact situation this
writ petition is maintainable in terms of the law laid down by this Court in a
decision reported in
R. MANJULA v. SECRETARY TO GOVERNMENT, REVENUE (SERVICES.I) DEPARTMENT,
HYDERABAD1 wherein it was held as under:
"We have adverted to the provisions of the Constitution and made a
reference to the Act with a view to highlight that the Tribunals created under
Article 323-A of the Constitution of India cannot be equated and placed along
with other inferior Tribunals whose origin is not traceable to any of the
provisions of the Constitution of India. No doubt, all the decisions of
Tribunals created pursuant to Article 323-A of the Constitution are subject to
High Court's jurisdiction under Articles 226/227 of the Constitution of India
as held by the Supreme Court in L. Chandra Kumar v. Union of India (1997) 3 SCC
261. The power of the High Court under Article 226 and 227 of the Constitution
of India is not wholly excluded. The Tribunals so constituted are even entitled
to handle the matters involving the constitutional issues. The Tribunals are
competent to hear matters where the vires of statutory provisions are
questioned. However, in discharging this duty, they cannot act as substitutes
for the High Courts and the Supreme Court, which have under this constitutional
set-up, been specifically entrusted with such an obligation. Their function in
this respect is only supplementary and all such decisions of the tribunals will
be subject to scrutiny before a Division Bench of the respective High Courts".
It is very well settled that the High Court in exercise of its jurisdiction
under Article 226 of the Constitution of India will not interfere with the
exercise of discretionary power by the inferior Courts/Tribunals, unless such
exercise has resulted in grave and irreparable injury to the concerned and
particularly in cases where such discretion is exercised by a Tribunal whose
origin is traceable to the constitution provisions. The decisions of the
Tribunal are subject to a scrutiny before a Division Bench of this Court.
7. Learned Advocate General appearing on behalf of respondent Nos.1 to 3
vehemently argued that the writ petition is devoid of merit and not maintainable
as it is filed against the interim orders and normally, this Court would not
entertain any interlocutory order passed by the Tribunal. In support of his
contention, he relied upon the decision of this Court in R. MANJULA v.
PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (SERVICES . I)
DEPARTMENT2, wherein it was held as under:
" Refusal to grant an ex parte interim order in every case by the Tribunal
cannot be characterised as a 'decision'. Such acts cannot be subjected to
scrutiny by this Court in exercise of its jurisdiction under Article 226 of the
Constitution of India. It is equally well settled that this Court would not
entertain a judicial review proceeding only for the purpose of passing an
interlocutory order, inasmuch as the interim relief can be granted only in the
aid of an ancillary to the main relief to the party and final determination of
his rights in the proceedings.
The High Court in exercise of its jurisdiction under Article 226 of the
constitution of India would not normally interfere with the discretionary orders
passed by the Tribunal. Grant of an interlocutory order or refusal thereof is
within the discretion of the Tribunal. This Court would not interfere with such
discretion exercised by the Tribunal with regard to the interlocutory orders
unless it is established that passing of such interlocutory order or refusal
thereof had resulted in an irreversible situation resulting in manifest
injustice. It would not be appropriate for this Court to entertain any writ
petition only for the purpose of granting an interim order during the pendency
of the main proceedings before the Tribunal. However, it would be entirely a
different matter if the discretion exercised by the Tribunal in the matter of
granting interim relief results incalculable repercussions and public mischief.
In such cases where denial of interim orders may lead to public mischief, grave
irreparable injury or shake a citizen's faith in the judicial process, it is not
only the power but the duty of the Court to interfere and grant appropriate
relief accordingly. Suffice it to observe interference of this Court with the
exercise of discretion by the Tribunal at interlocutory stage is not a matter of
course".
Learned Advocate General further relied upon the decision of this Court in
G.S.VENKATA RAMANA v. GENERAL MANAGER, SOUTH CENTRAL RAILWAY, SECUNDERABAD3
wherein it was held as under:
"The Tribunal has only postponed its decision on the interim application. It has
neither allowed the application nor rejected it. If one reads in between the
lines of the order passed by the Tribunal one comes to only one conclusion that
the Hon'ble members of the Tribunal wanted to decide the fate of the application
after getting a counter from the respondents. The learned counsel for the
respondents has also referred to a Division Bench judgment of this Court
reported in R. Manjula v. Principal secretary to Government Revenue (Services.I)
Department 2002(1) ALT 523 (DB) in which parameters have been laid within which
the High Court should interfere when writs are filed against granting or refusal
of interim orders".
He also relied upon the decision of the Supreme Court in STATE OF UP v SUNANDA
PRASAD4 wherein it was held as under;
"the High Court exceeded its jurisdiction in entertaining a writ
application when the legality of the order of transfer is a subject matter of a
pending proceeding before the Central Administrative Tribunal and the Tribunal
has passed an order of status quo. If the appellate authority has violated any
interim direction of the Tribunal, the appropriate remedy is to file an
application for contempt and that such an application has been filed, which is
pending before the Tribunal".
Learned Advocate General while reiterating the averments made in the counter
affidavit argued that as per Regulation 4 of Indian Administrative Service
(Appointment by Selection) Regulations, 1997, the State Government shall
consider the case of a person not belonging to the State Civil Service but
serving in connection with the affairs of the State, who has got outstanding
merit and ability, holds a Gazetted post in a substantive capacity and who has
completed not less than 8 years of continuous service under the State Government
and the object behind this issue is to create an opportunity for the officers
who are in Non State Civil Officers for entry into IAS. He further contended
that the first respondent called for the nominations as per the said regulations
vide D.O.letter dated 31.08.2011 and in response to the same, various
departments have sent proposals including the Commissioner of Commercial Taxes
where the petitioner is working as Assistant Commissioner and in response to the
said letter, the Commissioner, Commercial Taxes had initially sent the names of
four candidates and subsequently furnished the names of 25 candidates stating
that they were also eligible as per the guidelines and since these proposals are
not according to the guidelines issued by the Government, the first respondent
vide letter dated 14.10.2011 requested the Commissioner, Commercial Taxes to
send the names as per the prescribed proforma along with Annual Confidential
Report dossiers on or before 15.10.2011 and in reply, the Commissioner,
Commercial Taxes informed vide letter dated 01.11.2011 as stated supra. While
placing reliance on the said letter, learned Advocate General argued that
certain guidelines were framed to bring the objectivity, transparency and
fairness in preparing proposals in spite of recommending the officers within the
zone of consideration and that this Court has rightly held in W.P.Nos.30691 of
2010 and batch that there is no infirmity in the decision making process and
there was no illegality, irrationality and procedural impropriety in the action
of the Commissioner, Commercial Taxes and therefore, issuance of G.O.Ms.No.524
dated 27.08.2011 does not affect the petitioner in any way. He further contended
that since there are only four posts for Non State Civil Services, the third
respondent had adopted the method of shortlisting by sending the Officers having
outstanding merit and ability based on seniority and rank instead of sending
large number of Officers even though eligible. In support of his contention, he
relied upon the decision of the Supreme Court in
B. RAMAKICHENIN @ BALAGANDHI v. UNION OF INDIA5 wherein it was held as under:
" It is well settled that the method of shortlisting can be validly adopted by
the selection body vide M.P.Public Service Commission v. Navnit Kumar Potdar and
Government of A.P. v
P. Dilip Kumar.
Even if there is no rule providing for shortlisting nor any mention of it in the
advertisement calling for applications for the post, the selection body can
resort to a shortlisting procedure if there are a large number of eligible
candidates who apply and it is not possible for the authority to interview all
of them. For example, if for one or two posts there are more than 1000
applications received from eligible candidates, it may not be possible to
interview all of them. In this situation, the procedure of shortlisting can be
resorted to by the selection body, even though there is no mention of
shortlisting in the rules or in the advertisement.
Hence, if the method of shortlisting had not been prescribed by UPSC or in a
statutory rule, it is possible that the argument of learned counsel for the
respondents may have been accepted and we may not have interfered with the
method of shortlisting adopted by UPSC since it appears to be based on a
rational and objective criteria.
8. Sri B.Adinarayana Rao, learned counsel appearing on behalf of respondent
Nos.7 to 10, submitted that as against four vacancies, the third respondent
forwarded the list of 20 candidates including the names of respondent Nos.7 to
10 and pursuant to the same, the Union Public Service Commission had fixed the
dates of interview on 21st and 22nd December, 2011, and as the selection process
has to be completed by the end of December, 2011 and if the selection process is
stalled, some of the nominated persons in the list may lose the chance of
promotion and it would adversely affect their interests.
9. Sri M.S.Ramachandra Rao, learned counsel appearing on behalf of respondent
Nos.11 to 13, contended that since the order impugned is interim in nature, it
cannot be interfered with by this Court by way of writ petition because the
scope of interference in the writ petition is limited. He relied upon the
decision of the Supreme Court in R. MANJULA's case (2 supra). He further urged
this Court to vacate the interim orders passed by this Court on 14.12.2011
because the selection process has to be completed by 31.12.2011. He also relied
upon the decision of the Supreme Court in S.B.MATHUR v. HON'BLE THE CHIEF
JUSTICE OF DELHI HIGH COURT6 wherein it was held as under;
"The next submission of learned counsel MR. Thakur, which he stated was his main
submission, is that under the relevant Rules an appointment to the post of
Assistant Registrar has to be made by selection from Superintendents, Private
Secretaries and Readers or Court Masters and hence all employees holding these
posts in a permanent capacity must be considered to be eligible and within the
zone of consideration for selection to these posts. It was not open to the
learned Chief Judge, respondent No.1 herein, to limit that zone of consideration
in any manner. He drew our attention to the Establishment (Appointment and
Conditions of Service) Rules of 1972 and in particular Item No.3 of Schedule II
thereof framed under Rule 7 of the said Rules. He pointed out that under the
said item, the appointment to the post of Assistant Registrar, which is a
selection post is to be made by selection on merit from categories of officers
of categories 5,6 and 7 of Class II mentioned in schedule I, namely,
Superintendents, Court Masters(Readers) and Private Secretaries. It was
submitted by him that this Rule excluded any reference to seniority and even if
it was open to the appointing authority to limit or restrict the zone of
consideration it could not be limited with reference to seniority".
The Bench, however, went on to hold that in its view, merely because the Haryana
Public Service Commission had called all the 1300 candidates who obtained 45
per cent or more marks in the written examination to appear in the interview
that did not invalidate the selection made. This decision points out that the
minimum eligibility qualification has to be kept distinct from the zone of
consideration and even if there are a large number of candidates who satisfy the
minimum eligibility requirement it is not always required that they should be
included in the zone of consideration, it being open to the authority concerned
to restrict the zone of consideration amongst the eligible candidates in any
reasonable manner".
10. Sri P. Venugopal, learned counsel appearing on behalf of respondent No.14,
submitted that as per the Regulations, the third respondent has to sent the
names only up to the level of Additional Commissioner/Joint Commissioner and he
has got power to restrict the number of candidates. He further contended that if
the interviews were not held by the Committee for the year 2011, this
respondent, whose name is at Sl.No.1 in the list, would lose the chance of being
considered for appointment as IAS.
11. Sri V. Vedula Venkata Ramana, learned senior counsel appearing on behalf
of Sri M. Balanaga Srinivas, learned counsel appearing on behalf of respondent
Nos.15 and 16, submitted that respondent Nos.15 and 16, who were empanelled for
appointment to IAS, were issued call letters in respect of the vacancies
pertaining to the year, 2011 and because of the interim orders of this Court,
interviews were not conducted. He relied upon the decision of the Supreme
Court in L. CHANDRAKUMAR v. UNION OF INDIA7 wherein it was held as under:
"In respect of the power of judicial review, the jurisdiction of the High
Courts under Articles 226/227 cannot wholly be excluded. It has been contended
before us that the Tribunals should not be allowed to adjudicate upon matters
where the vires of legislations is questioned, and that they should restrict
themselves to handling matters where constitutional issues are not raised. We
cannot bring ourselves to agree to this proposition as that may result in
splitting up proceedings and may cause avoidable delay. If such a view were to
be adopted, it would be open for litigants to raise constitutional issues, many
of which may be quite frivolous, to directly approach the High Courts and thus
subvert the jurisdiction of the Tribunals. Moreover, even in these special
branches of law, some areas do involve the consideration of constitutional
questions on a regular basis; for instance, in service law matters, a large
majority of cases involve an interpretation of Articles 14,15 and 16 of the
Constitution. To hold that the Tribunals have no power to handle matters
involving constitutional issues would not serve the purpose for which they were
constituted. On the other hand, to hold that all such decisions will be subject
to the jurisdiction of the High Courts under Articles 226/227 of the
Constitution before a Division Bench of the High Court within whose territorial
jurisdiction the Tribunal concerned falls will serve two purposes. While saving
the power of judicial review of legislative action vested in the High Courts
under Articles 226/227 of the Constitution, it will ensure that frivolous claims
are filtered out through the process of adjudication in the Tribunal. The High
Court will also have the benefit of a reasoned decision on merits which will be
of use to it in finally deciding the matter".
12. Now, the point for consideration is whether the Tribunal has committed
error in not granting interim direction as prayed for, by the petitioner.
13. It is the main contention of the petitioner that he has got outstanding
merit and ability and he is fully eligible for promotion pursuant to
G.O.Ms.No.524 dated 27.08.2011, whereunder the Government has given opportunity
for more number of officers and therefore, the earlier G.O.Ms.No.634 dated
24.08.2007 was no longer relevant by virtue of the revised policy in
G.O.Ms.No.524.
For considering the above plea of the petitioner, it is just and
relevant to refer the decision rendered by this Court in W.P.Nos.30691, 30699
and 32290 of 2010 dated 31.12.2010, wherein it was held as under:
"It is true that in the Regulations or in G.O.Ms.No.634 nowhere it is laid down
that seniority rule should be followed or the number of officers to be sent
should be restricted up to a particular level. It may however be noted that
equally there is no rule or nothing in the Regulations or G.O.Ms.No.634
prohibiting the competent authorities/heads of departments from restricting the
number of officers to be sent up to a particular level. At the risk of
repetition it should be noted that when there are only three vacancies and names
of 15 officers have to be forwarded in the ratio of 1:5, the authorities cannot
be expected to send the names of all the eligible officers in all the
departments whose names may go up to more than 300 or much more, having regard
to the terms of G.O.Ms.634, for selecting 15 candidates taking into account
their outstanding ability and merit. Such a course may make the whole selection
process unmanageable. In such a case any authority will not be in a position to
take a decision smoothly and it may result in various complications each officer
trying to stall the proceedings in the methods known to him/her. Even otherwise
the Principal Secretary to the Government by his letter dated 17.05.2010 at para
4 categorically instructed the heads of departments that the Regulations
stipulate that the Non State Civil Service Officers to be considered for
selection should be of outstanding merit and ability and this aspect should be
thoroughly ensured before sending the proposals. The said G.O.Ms.No.634,
Regulations and the above instructions of the Government for consideration of
the cases are subject to outstanding merit and ability. It is only pursuant to
the instructions of the Government, the Commissioner has exercised his
discretionary power in restricting the zone of officers in his department for
consideration up to Additional Commissioners and Joint Commissioners to choose
the candidates of outstanding merit and ability from those categories. It cannot
be said that the Commissioner has exercised that discretion for an unauthorized
purpose and there was no malicious intention in that regard.
The various propositions laid down in the decisions relied upon by
Sri Surender Rao and which have already been stated supra were laid down in the
particular facts and circumstances of those cases where an immediate injury was
suffered by the persons who approached the Courts. In the present case, apart
from the applicant officers all other Deputy Commissioners and Assistant
Commissioners and officers below their rank were not considered by the
Commissioner. Therefore, they cannot complain any stigma also. It is true that
a right to be considered for promotion may be a fundamental right but when the
number of vacancies is only three in a case like this the Government cannot be
expected to consider a large number of officers running into around 300 as that
would lead only to scramble impeding the selection exercise. As the applicant
officers cannot be said to have suffered any stigma because of the action of the
Commissioner and having regard to the paltry number of vacancies the action of
the Commissioner in restricting the zone of consideration can also be considered
to be a reasonable restriction on the right to be considered for promotion. In
our view the test is to see whether there is any infirmity in the decision
making process and not in the decision itself. On an critical analysis of the
matter we do not see any illegality, irrationality and procedural impropriety in
the action of the Commissioner".
From the said extracted portion, it can be construed that since G.O.Ms.No.634,
Regulations and the instructions of the Government are meant for consideration
of the cases subject to outstanding merit and ability and since there are less
number of vacancies and the names of Officers have to be forwarded in the ratio
of 1:5, the Commissioner, Commercial Taxes restricted the zone of consideration
only to the level of Additional/Joint Commissioners and held that there is no
illegality, irrationality and procedural impropriety in the action of the
Commissioner.
14. In the instant case, for the year 2011, for four vacancies of IAS meant to
be filled up by Non State Civil Service Officers, the Government issued
G.O.Ms.No.524 dated 27.08.2011 in
super cession of G.O.Ms.No.634. The arguments advanced by the learned counsel
for the petitioner that as per G.O.Ms.No.524, the Government enlarged the scope
of eligibility criterion that all Group-I Officers, who have completed 8 years
of continuous service after reaching basic pay of Deputy Collector and above and
the other Officers not covered under Group-I service, who are in the scale of
pay of Deputy Collector and who have completed 8 years continuous service in
that scale of pay are considered for the purpose of equivalence and the
petitioner is fully eligible for promotion to the post of IAS, needs no
consideration in view of the earlier decision of this Court in W.P.Nos.30691,
30699 and 32290 of 2010 stated supra. Even if there are large number of
candidates who satisfy the minimum eligibility requirement, it is not always
required that they should be included in the zone of consideration and it is
being open to the authority concerned to restrict the zone of consideration
amongst the eligible candidates, as held by the Apex Court in S.B.MATHUR's case
(6 supra) and therefore, we are of the view that the procedure of short listing
the candidates based on the outstanding merit and ability adopted by the third
respondent cannot be said to be unsustainable and if the case of the petitioner
is considered, it is nothing but opening of flood gates for similarly situated
persons.
15. Further, as against the orders passed in W.P.Nos.30691 of 2010 and batch,
the petitioner preferred an appeal before the Supreme Court and no stay has been
granted therein. In view of the same, following the decision rendered by this
Court in the said writ petitions, we are not inclined to give any positive
direction to the respondents as prayed for by the petitioner in this writ
petition.
16. Be that as it may, as held by the Apex Court in
R. MANJULA's case (2 supra) and L.CHANDRAKUMAR'S case
(7 supra), this Court, under Article 226 of the Constitution of India, normally
would not interfere with the interlocutory orders passed by the Tribunals during
pendency of main proceedings.
17. In view of the aforesaid reasons, the Writ Petition is dismissed. No order
as to costs.
_____________________
GHULAM MOHAMMED, J
_______________
K.S.APPA RAO, J
Date: 28.03.2012
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.