Wednesday, November 7, 2012

OA 46 and 47 of 2011 -- 6 MAs in this reg. on question of STAY


M.A. NOS.67 TO 69/2011 IN OA 46/2011 AND
M.A. Nos. 70 to 72/2011 IN OA No.47/2011


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)


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)


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)



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