CENTRAL
ADMINISTRATIVE TRIBUNAL
BANGALORE
BENCH
M.A.
NOS.67 TO 69/2011 IN OA 46/2011 AND
M.A.
Nos. 70 to 72/2011 IN OA No.47/2011
TODAY,
THIS THE 1st DAY OF MARCH, 2011
HON'BLE
SMT. LEENA MEHENDALE … MEMBER (A)
HON'BLE
SHRI V. AJAY KUMAR … MEMBER (J)
1. Dr. K.N. Vijaya Prakash,
(Applicant in OA 46/2011)
2. Richard Vincent D.Souza,
(Applicant in OA 47/2011) … Applicants
(By
Advocate Shri N.G. Phadke)
Vs.
1. Union of India by Secretary,
DoPT,
New Delhi & 17 Ors. … Respondents
(By
Advocates Shri M.V. Rao, Sr. Central Govt. Standing Counsel for R-1,
Shri
Ashok Harnahalli, Advocate General, Govt. of Karnataka, assisted by
Shri M.
Nagarajan, State Govt. Pleader for R-3, Shri Krishna S. Dixit for R-5,
Shri
Sateesh M. Doddamani for R-6, Shri Gangadhar for R-8,
Shri
P.S. Rajagopal, Senior Counsel for R-12, Shri S.V. Narasimhan for R-13
and Shri
H. Kantharaja for R-18)
O R D
E R
Hon'ble Smt. Leena Mehendale, Member (A):
The two O.A. Nos. 46/2011 and
47/2011 have been filed by two different applicants, but with exactly the same
factual situation. In both the O.As,
after hearing the learned counsel for the applicants, an interim order of stay
was granted on 1.2.2011. The respondents
have now filed the above M.A.Nos.67 to 69/2011 in O.A. No.46/2011 and M.A.
Nos.70 to 72/2011 in O.A. No.47/2011 respectively praying for vacating the
stay. All the M.As are taken up together
for hearing. For the sake of
convenience, the matrix of O.A. No.46/2011 will be referred to in the following
paragraphs:
2. The applicant is working with the Govt.
of Karnataka and is eligible for
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appointment
under Rule 4 of the Indian Administrative Service (Appointment on Selection)
Regulation, 1997. This Rule applies to
the senior officers not belonging to the State Civil Services, but serving in
connection with the affairs of the State and are referred to as Non-State Civil
Service officers. (Non-SCS officers for
short). Rule 4 supra states that Non-SCS
officers who are of outstanding merit and ability are eligible for being
appointed to the IAS.
3. The procedure for such appointment in
brief is divided into two stages. The
State Screening Committee makes a list of the non-SCS officers recommended from
various departments under the Government.
The Screening Committee does the grading and send the recommendation to
the UPSC. The second stage is that the
Selection Committee of the UPSC will select out of this list, those names which
appear to be most suitable after a process of selection. After such a select list is issued by the
UPSC and received by the State Government, the appointments are made to the
IAS.
4. Apparently, the applicants were considered
by the Screening Committee and placed at Sl. No.1 and 2 of the list recommended
by the State Government along with 14 other names. The selection procedure by the UPSC also
involves an interview which was held on 28.12.2010 for all the recommended candidates
and now the UPSC and the State Government are in the process of issuing final
orders for appointment by selection in the IAS.
The O.As were filed on 27.01.2011 with an interim relief of “pending
disposal of this O.A., this Tribunal to grant stay of all further proceedings
in pursuance to the proposal sent by the III-Respondent in its letter dated
20.09.2010 at Annexure-A/4 and also interview held on 28.12.2010 in pursuance
to the interview letter dated 09.12.2010 at Annexure-A/6.”
5. The claim of the applicants is that in
addition to the first 4 names who were
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candidates
possessing Outstanding ACRs for all the years, more names were included by the
Screening Committee for being sent to UPSC and these are the names which are
included at Sl.No.5 to 16 have some of their ACRs graded as Very Good or
Good. Thus, they are not fit to be
considered by the Screening Committee nor fit to be recommended to the UPSC. By
including their names in the list forwarded to UPSC, the applicants have
unnecessarily been made to compete with officers of lesser merit and the
chances of their selection has been reduced.
6. An ex-parte interim order of stay was
granted on 1.2.2011 with emergent notices to the respondents returnable by 14
days by mentioning the following:
"….. The main ground of the applicant seems to be
violation of proceedings. Learned
counsel for the applicant intends that as per the selection regulations 1997,
only candidates who are of outstanding merit and ability have to be considered,
whereas Annexure-A/5 indicates that candidates having other than outstanding
ACRs were also considered and are interviewed on 19.12.2010.”
7. Some of the respondents have filed M.A.
Nos.67 to 69/2011 in O.A. No.46/2011 and M.A. Nos.70 to 72/2011 in O.A. No.47/2011
along with a short reply for vacating the stay which were all taken up together
for hearing and disposal on 18.02.2011
8. The grounds for vacating the stay as
stated by the learned Advocate General of the State of Karnataka on behalf of
Respondent No.3 and adopting the same by the learned counsel appearing for the
other respondents arise out of two main documents, viz.,
I.
Rule 4 and 5 of the IAS (Appointment by Selection) Regulation, 1977
(Annexure-A/1) and
II.
Letter dated 9.12.2010 issued by the Chief Secretary, Govt. of Karnataka
to the 16 officers informing them of their schedule for an interview at the
UPSC on 28.12.2010 (Annexure-A/6) and the other grounds for vacating the stay
are :
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(i)
The OA is premature, the names
of the applicants have been recommended to the UPSC and the list of finally
selected candidates by UPSC is yet to be finalised. Hence, the cause of action for the applicants
arise only after the notification of the list.
(ii)
The principle of estoppel applies because the applicants were aware of
the inclusion of other candidates in the list forwarded to the UPSC as early as
9.12.2010. Thereafter, they have also
participated in the interview. Having so
participated in the interview, they cannot object to the outcome of the
selection process. The learned counsel
have relied on the following judgments:
1.
AIR (1997)SC 2083 – page 2084
2.
AIR(1995) SC 1088 para 9.
3.
2006(6) SCC 395 paras 72 and 74 at page 426.
(iii)
No malafide has been alleged.
Hence, there is no reason for staying the publication of the list.
(iv)
The wording quoted in the Rules, viz., “Officers of Outstanding merit
and ability” must not be construed as officers possessing the grading “Outstanding”
in their ACRs.
(v)
After going through all the ACRs, the Screening Committee is competent
to decide who should be graded as “Officers of Outstanding merit and ability. Moreover, Annexure-II to Annexure A/5 (page
49 of the OA) certifyingthat the 15 officers mentioned therein are of
outstanding merit and ability. This
certificate dated September, 2010 is as
per the requisites of UPSC. It is thus,
claimed by the learned counsel for respondents that the Screening Committee has
applied its mind in declaring these officers as officers of outstanding merit
and ability with due deliberations even though all of their 10 ACRs may at
times have possessed more Very Good or Good.
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(vi)
After the selection list is notified, opportunity is available to the
applicants to challenge the list by way of O.A. to make their claim for
selection to IAS. Hence, the applicants
do not stand to lose now if the stay is vacated. On the other hand, if the stay is continued,
then all the three vacancies for which selection process was undertaken cannot
be filled., Thus, depriving three officers from their promotion.
9. On the other hand, the learned
counsel for the applicants in the OA mainly relies in Rule 4 and 5 of the IAS
(Appointment by Selection) Regulation 1977 (Annexure-A/1) and the letter dated
23.04.2010 written by the Chief Secretary to the Govt. of Karnataka to the
Secretaries of various departments to the Govt. of Karnataka (Annexure-A/3).
10. The learned counsel for the applicants
in the OA unnderlies the difference between the procedure to be followed and
the Rules to be applied by the Screening Committee of the State vis-a-vis the
same to be applied by the Selection Committee of the UPSC. He distinguishes the two and claims that
under Rule 4(i) the State Govt. shall recommend to UPSC only those cases of
persons who are of outstanding merit and ability. Thereafter the Selection Committee of UPSC
has to meet every year to consider the proposal received from the State Government
and recommend the names of the persons not exceeding the number of vacancies to
be filled for appointment to the IAS. The suitability of persons for
appointment to the service shall be determined by the scrutiny of service
records, and personal interview. On the
other hand, the functions of the Screening Committee of the State are carried
out as per Annexure-II to Annexure-A/2 (Pages 26 to 39 of the OA).
11. The learned counsel for applicants in
OA mainly relies on Annexure-A/3 which is the letter dated 23.04.2010 written
by the Chief Secretary to the Secretaries of other
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departments
of the government. In this letter, an
elaborate procedure and criteria to be followed by the departments for
recommending names of officers of their departments to the Screening Committee
are set out. The said letter mentions at
paras 4 and 5 as below:
4. Senior officers of the field
departments at the level of Additional/Joint heads of department or heads of
department in appropriate cases, who are within the specified age limit and are
of exceptional merit and ability, would be considered for the purpose. The officers considered tor the purpose must
have consistently clear and outstanding service records without any blemish,
complaint or departmental enquiry/judicial proceedings pending or contemplated
against them. Their last 10 years Annual Perfoimance Reports must be available
in full and they should have been graded either ‘Outstanding’ or ‘Very good’
consistently throughout. Each proposal
shall contain a detailed note on the overall performance of the officer in the
department, his merit/achievements in the department, his personality as an
officer of the department to merit selection to lAS.
5
The proposal shall he sent with
the approval of the Minister in charge of the portfolio. The fact of having obtained the approval of
the concerned authority shall be specifically mentioned in the proposal. The recommendation may be kept to the barest
miuimum viz.., one or two having regard to the size of the Department. There shall be only one consolidated proposal
in respect of each S.eöretariat Department covering only two officers in
respect of field departments under its administrative control and not.exeeeding
three from the department in case there are more than one field department
under its administrative control,.the proposal shall not be sent in piece meal,
which will not be considered ‘
12. The chart showing the ACRs obtained by
various officers under consideration over the past 10 years is produced at page
54 of the OA. This shows some officers
to be possessing not outstanding or Very Good but Good CRs. For example, candidates mentioned at Sl.No.20
onwards do not have consistently outstanding or Very Good record but also have
occassionally Good. Secondly, out of the
16 names finally sent to UPSC by the Screening Committee, names at
Sl.No.2,3,6,10 and 11 all belong to one single department viz., RD&PR
department which flouts the instructions of the circular of the Chief Secretary
at Annexue-A/3.
13. In support of continuation of the interim
stay, the learned counsel for the
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applicants
in the OA submits that the respondents must file their reply which has not been
done so far. The State Government cannot
plead any extra-ordinary emergency for which the three vacant posts must be
filled without completing the hearing and disposal of the present O.As. Hence, he submits that the interim stay
should be continued till the disposal of the O.A.
14. The prayer in the O.A. is to set aside
the proposal made by the State Government in letter No.DPAR 25 SAS 2010, dated
20.09.2010 issued by the Respondent No.3 at Annexure-A/4 and re-do the process
of recommending the names to the UPSC who thereafter, should once again constitute
the Selection Committee and only thereafter the appointment should be
made. Thus, the main prayer seeks to
quash the proposal dated 20.09.2010 and the selection process completed by the
UPSC through their Selection Committee and interviews held on 28.12.2010 and
setting at null the outcome of the selection committee meeting. The prayer calls for starting afresh the
whole process of screening the names of eligible Non-SCS officers to UPSC for
vacancies to the IAS for the year 2010.
15. At this stage, we are concerned only with
the question of continuing the interim stay or otherwise.
16. We agree with the learned counsel from
both sides that the O.A. also merits speedy disposal. We take note of the fact that respondents in
the O.A. and the M.A. applicants especially Respondent No.3 have not yet filed
their reply to the O.A Therefore, we
direct that all the respondents, more specifically Respondent No.3 should file
their reply before the next date of hearing.
17. In the facts and circumstances, the
interim order granted on 1.2.2011 stands
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vacated. However, with the condition that any
appointments made to IAS pursuant to Annexures-A/4 and A/5 will be subject to
the final outcome of the O.A.
List the case on 09.03.2011.
(V. AJAY KUMAR) (LEENA
MEHENDALE)
MEMBER (J) MEMBER (A)
psp.
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