CENTRAL
ADMINISTRATIVE TRIBUNAL
BAGALORE
BENCH : BANGALORE
ORIGINAL
APPLICATION No.46 AND 47 of 2011
TODAY,
THIS THE ................. DAY OF ..........., 2012
HON'BLE
SMT. LEENA MEHENDALE ... MEMBER (A)
HON'BLE
SHRI V. AJAY KUMAR .. MEMBER (J)
1. Dr. K.N. Vijayaprakash,
Commissioner,
Mangalore City Corporation,
Lalbagh,
MANGALORE – 575 003.
(Applicant in OA No.46/2011)
2. Richard Vincent D'Souza,
S/o Late
Urban D'Souza,
Aged
about 47 years,
Joint
Commissioner for Transport,
(Bangalore Urban and Rural),
7th
Floor, MSIL Building,
No.36,
Cunningham Road,
Bangalore – 560 052.
(Applicant in OA No.47/2011) ... Applicants
(By
Advocate Shri N.G. Phadke)
Vs.
1. The
Union of India,
Represented by its Secretary,
Ministry of Personnel, Public Grievances
and
Pensions (DOP & T),
NEW
DELHI – 110 001.
2. The
Union Public Service Commission,
Represented by its Secretary,
Dholpur
House, Shahjahan Road,
NEW
DELHI – 110 011.
3. State of
Karnataka,
Represented by its Chief Secretary,
Vidhana
Soudha,
BANGALORE – 560 001.
4. Shri Richard Vincent D'Souza,
S/o
Late Urban D'Souza,
Aged
about 47 years,
Joint
Commissioner for Transport,
(Bangalore Urban and Rural),
7th
Floor, MSIL Building,
No.36,
Cunningham Road,
Bangalore – 560 052.
(Respondent No.4 in OA No.46/2011)
4A.Dr. K.N. Vijayaprakash,
Commissioner,
Mangalore City Corporation,
Lalbagh, MANGALORE – 575 003.
(Respondent No.4 in OA No.47/2011)
5. Sri V.P.
Ikkeri,
Joint
Commissioner (West),
Bruhat
Bangalore Mahanagara Palike,
Malleshwaram,
BANGALORE – 560 003.
6. Sri N. Bhrungeesh,
Press
Secretary to Chief Minister,
Vidhana
Soudha,
BANGALORE – 560 001.
7. Sri R.
Muniveere Gowda,
Joint
Commissioner for Transport,
5th
Floor, M.S. Building,
BANGALORE – 560 001.
8. Sri
Guthi Jambunath,
Chief
Executive Officer,
Zilla
Panchayath,
DAVANAGERE.
9. Sri H.L.
Shivananda,
General
Manager,
Mysore
Minerals Ltd.,
No.39,
M.G. Road,
BANGALORE – 560 001.
10.Sri C. Veerabhadraiah,
Executive Director,
M/s.
Karnataka Beverages Corporation Ltd.,
Seethalakshmi Towers,
No.78,
Mission Road,
BANGALORE – 560 027.
11.Sri N.R. Vishnu Kumar,
Managing Director,
Kanteerava Studio Ltd.,
Kanteerava Nagar, Mahalakshmi Layout,
BANGALORE – 560 096.
12.Dr. G.C. Prakash,
Chief
Executive Officer,
Zilla
Panchayath, Bagalkot District,
BAGALKOT.
13.Sri N.S. Prasanna Kumar,
Director, (MGNREGS),
Rural
Development and Panchayath Raj
Department, M.S. Building,
BANGALORE – 560 001.
14.Sri H.V. Raghuram,
Managing Director,
Visvesvaraya Industrial Trade Centre,
3rd
Floor, VITC Building,
Kasturba Road,
BANGALORE – 560 001.
15.Sri B.E. Govindaraju,
Additional Director,
Agricultural Marketing Department
Near
Income Tax Department,
Bangalore – 560 001.
16.Sri H.D. Arun Kumar,
Joint
Commissioner of Commercial Taxes,
Commercial Tax Complex,
Kalidas
Road, I-Main Road,
Gandhinagar, BANGALORE – 560 009.
17.Sri N. Lakshmana Rao Peshve,
Secretary to Government,
Public
Works Department,
Vikasa
Soudha, BANGALORE – 560 001.
18.Sri M. Ramaiah,
Joint
Director,
Social
welfare Department,
M.S.
Building, BANGALORE – 560 001. ... Respondents
(By
Advocates S/Shri . Vasudeva Rao, Sr. Central Govt.
Standing
Counsel for R-1, Shri P.S. Dinesh Kumar for R-2,
Shri M.
Nagarajan for R-3, Sri Krishna S. Dixit for R-5,
Sri
Sathish M. Doddamani for R-6, Sri P.C.
Reddy for R-7,14 and 15, Sri Gangadhar Sangolli for R-8, Sri J. Prasanth for
R-11,
Sri P.S.
Rajgopal for R-12, Sri S.V. Narasimhan for R-13 and
Sri H.
Kantharaju for R-18)
O R D E R
Hon'ble Smt. Leena Mehendale, Member (A) :
This matter pertains to Appointment
to IAS (Indian Administrative Service) by Selection from amongst the eligible
State Government officers serving in connection with the affairs of the State,
but not belonging to the SCS (State Civil Services). It is agitated that promotion to IAS was
denied to the applicants even after their meritorious service. It is pertinent to note that these selections
are made under the IAS (Appointment by Selection) Regulations, 1997
whereas the case of SCS Officers is governed by the IAS (Appointment by
Promotion) Regulations, 1997 and the two methodologies are different.
2. The two O.As, viz., OA No.46/2011 and
OA No.47/2011, are both filed on 11.01.2011 under Section 19 of the
Administrative Tribunals Act, 1985. For
the sake of convenience, the matrix of OA No.46/2011 is used with due mention
from OA No.47/2011 when so required.
3. Both the O.As arise out of vacancies
for the year 2010, during which year, there existed 3 vacancies and as per
norms, a panel of 15 candidates would be required to be considered by the
Selection Committee of UPSC. Briefly,
the State Govt. calls for recommendations from their various departments, a
Screening Committee goes through all recommended names and their service
records, and prepares a panel for UPSC, who then constitutes a Selection
Committee and selects candidates as per vacancy.
4. The events which led to these O.As are
as follows:
(a) On
23.04.2010, the Chief Secretary of Karnataka sent letters to the Secretaries of
different administrative departments calling for names of non SCS officers from
those departments who were considered by the department as officers possessing
"Outstanding merit and ability". He prescribed certain norms to be followed
by the Secretaries while doing so.
(b) A
Screening Committee under the Chairmanship of the Chief Secretary was formed
which met on 17.08.2010 examined 36 such
nominations received from 13 different departments. Screening Committee short-listed 15 officers
to be kept in the zone of consideration.
[Later one more name got added as per the order of this Tribunal in a
different OA. However, that point is not
relevant in any way for the purpose of this discussion. Hence, we will mention only 15 names under
zone of consideration].
(c) On
20.09.2010, the State Government, after further examining these candidates from
the vigilance point of view and finding them suitable on that count too,
forwarded the list of these 15 officers to the UPSC.
(d) On
09.12.2010 (Annexure-A/6), the Chief Secretary informed all the 16 short listed
officers that the State Government proposed their names for Selection to IAS
under IAS (Appointment by Selection) Regulation, 1997 and in that connection
they were rquired to attend the interview in the UPSC before the Selection
Committee on 28.12.2010. This
communication shows that the names of the applicants here in OA No.47/2011 and
46/2011 appeared at Sl. No.1 and 2 respectively. However, it does not indicate to have been
prepared either on the basis of the seniority of the officers or on their
merit.
(e) On
28.12.2010, the interview was held.
(f) Thereafter
the State Government completed all the other formalities such as:-
(i)
Obtaining from UPSC the list of candidates found
fit for selection;
(ii) Offering
remarks of the State Government in respect of such candidates;
(iii) Forwarding those remarks to the UPSC
(iv) UPSC sending the said list to the DoPT with
recommendations;
(v) DoPT
offering their remarks and sending back to the State Government;
(vi) State
Government preparing the promotion orders and sending back to DoPT and DoPT
issuing the selection orders;
(g) Finally three officers got the
order of selection into IAS on 8.9.2011 (Annexure-A/14). Both the applicants were not selected despite
they being at Sl. No.1 and 2 in the Screening Committee panel as seen from the
minutes of Screening Committee ranking is given at Annexure-A/5.
These three selected officers are
Shri V.P. Ikkeri, (Respondent No.5), Dr. G.C. Prakash (Respondent No.12) and
Shri N.S. Prasanna Kumar (Respondent No.13), Annexure-A/14.
5. Aggrieved, the applicant in OA
No.47/2011 Shri Richard Vincent D' Souza, whose name was placed at Sl. No.1 and
the applicant in OA No.46/2011, Dr. K.N. Vijayaprakash, whose name was placed
at Sl. No.2 by the Screening Committee in the total list of 15 short-listed
officers and have filed these two O.As.
6. The main issues thar arise for consideration
and were agitated by the learned counsel from both sides fall under 4
categories. From the applicants' side,
the issues relate to:
(A) events before the
interview at UPSC;
(B) marks and weightage for interview and
(C) the manner of conducting
the interview.
From the
respondents' side, they have mainly raised -
(D) the
issue of estoppel.
7. The issues are:
7.A-I Whether the letter dated 23.4.2010 by the Chief Secretary to the
administrative departments conforms to the IAS (Appointment by Selection)
Regulation, 1997 and whether the answer to this question would nullify or
otherwise the final outcome, namely appointment of three officers to IAS by
order dated 8.9.2011.
7.A-II. The abovesaid letter of the Chief Secretary
was not followed to the extent of 100% either by the departments or by the
Screening Committee under the Chief Secretary himself. Hence, whether such imperfection is
sufficient to nullify the final outcome, namely, appointment order dated
8.9.2011.
7.(A-III and A-IV). Will be discussed at paras 17-24 below.
7. B. It
is claimed by UPSC that the norms of alloting 50 marks for ACR and 50 marks for
interview has been in vogue since long.
Para 5(g) of the amended OA describes UPSC guidelines. We quote:
"5(g). The following procedure in the guidelines
clrculated by the II-Respondent, UPSC amongst the Hon'ble Chairman and members
of the UPSC at Annexure-A-10, which has been followed by the Selection
Committee is un-constitutional and the facts stated in para (supra) reveal that
the same has been abused in selecting the V,XII & XIII-Respondents.
"B.
Guidelines for dstribution of marks.
B.1
The Selection Committee for selection of non-SCS officers for appointment to
the IAS shall distribute the marks the assessment of service records and
personal interview as follows:
I.
Out of maximum 100 marks, the weightage for each
of the two components be given as follows:
(i)
|
Service
records with
particular
reerence to
ACRs for
the five preceding years.
|
50%
weightage
or
50 marks
|
(ii)
|
Personal
Interview
|
50%
weightage
or
50 marks
|
Total
|
100
marks
|
B.4 (2) In
case two or more officers receive the same
Total Marks and one or more is to be included
in the listed suitable officers, the tie is to
be resolved as follows:-
(a) The officer with the higher marks in the
interview component would be placed
senior to the officer (with the same (Total Marks) with lower marks."
During the
course of hearing, it was pointed out by Shri P.S. Dinesh Kumar, the learned
counsel appearing for UPSC, that the fact that 50 marks ARE allocated to
interview as compared to 50 marks for service records has been in vogue since
1997 and the same information is also available on homepage of the website of
UPSC, where an icon indicates appointment to IAS by selection and on opening
that icon, the new page appears giving information about allocation of
marks.
7.B-I. Since, all the 15 short listed
candidates were informed to appear before the UPSC for interview on 28.12.2011,
was it necessary for the State Government to inform each and every officer
about the methodology of assessment and interview to be held by UPSC?
7.B-II. Is such a high weightage for
interview justified and how the answer to this question affect the final
outcome, namely, appointment order dated 8.9.2011?
7.C. Another question raised by
applicant is whether interview methodology was proper and whether the answer to
this will affect the final outcome namely appointment order dated 8.9.2011?
7.D The question raised and argued by the
learned counsel for Respondent No.3 (State Govt.) and private Respondent No.12,
5 and 3 is this:- Since the two applicants were included in the zone of
consideration and were informed by letter dated 9.12.2010 that they were short
listed and were to appear for interview before UPSC and since they have so
appeared, therefore, would the principle of estoppel apply on them to stop them
from questioning the result of interview.
8. In support of his argument, Shri N.G.
Phadke, learned counsel for the applicant has relied on the following
authorities/decisions:
1.
(1993) 3 SCC 319 – P.M. Bayas Vs. Union of India
& Ors.
2.
2005 SCC (L&S) 738 – UPSC Vs. K Rajaiah &
Ors.
3.
2006 (3) ATJ – Prabhakar Singh & Anr. Vs. UOI
& Ors.
4.
(1992) 2 SCC 410 – R. Tamilmani Vs. UOI & Anr.
5.
(1985 4 SCC 417 – Ashok Kumar Yadav & Ors,
State of Haryana & Ors.
6.
(1991) 1 SCC 622 para 33 – Mohinder Sain Garg
Vs. State
of Punjab & Ors.
7.
(1992) 1 SCC 28 – Ashok Alias Somanna Gowda &
Anr. Vs.
State of Karnataka by its Chief Secretary & Anr.
8.
1998 Supp (1) SCC 206 – Satpal & Ors. Vs.
State of Haryana & Ors.
9.
(2007) 9 SCC 497 – P. Mohanan Pillai Vs. State of
Kerala &
Ors.
10.
(2011) 6 SCC 605 – Director General, Indian Council
for Agricultural
Research & Ors. Vs. D. Sundara Raju
11.
(2011) 10 SCC 86 Paras 12 & 14 – Asha Sharma
Vs. Chandigarh Administration
& Ors.
12.
(2012) AIR SCW 3017 – A. Shanmugam Vs. Ariya Rajakula Vamsathu
Madalaya Nandhavana Paripalanai Sangam
Represented by its President.
9. Shri P.S. Rajgopal, learned Senior
Counsel appearing for Respondent No.12, in addition has relied on the following authorities/
decisions.
1.
AIR 1997 SC 2083 – University of Cochin Vs.
N.S. Kanjunanjamma -para 4.
2.
(2008) 4 SCC 171 – Dhananjaya Malik Vs. State
of Uttaranchal
– paras 7 to 11
3.
(2006) 6 SCC 395 – K.H. Siraj Vs. High Court of
Kerala – paras 73,74
4.
(2009) 5 SCC 515 – Kanagamani Vs. Indian Airlines
– Para 54
5.
(1997) 1 SCC 60 – Radhey Shyam Singh Vs. UOI – paras 7,8,9
6.
(2001) 8 SCC 378 – Laxman Dundappa Dhamanekar Vs. Management of Vishwa Bharat Seva
Samiti–Paras 7 to 11
7.
Dr. Rajinder Singh Vs. State of Punjab – (2001) 5
SCC 482 - para 7
8.
(1997) 2 SCC 28 – Union of India Vs. Lt. Col. P.S.
Bhargava –
para 20
9.
(1994) 1 SCC 754 – T.V. Usman Vs. Food Inspector, Tellicherry
Municipality, Tellicherry
10.
1992 Supp(1) SCC 323 – Union of India Vs. Deoki Nandan Aggarwal –
para 14
11.
(2001) 8 SCC 470 – Union of India Vs. Popular Construction Company
– para 12
12.
WP No.17858/2002 (Ka. Jeevanandam Vs. UOI &
Ors.) decided by a
Division Bench of Madras High Court on 11.12.2002.
13.
B. Amrutalakshmi Vs. UOI – OA No.34/2008 decided
by Hyderabad Bench of
CAT on 20.02.2009
14.
(2009) 1 SCC 515 - K.A. Nagamani Vs. Indian
Airlines paras
46,50,54 (same as 4)
15.
(2000) 7 SCC 719 – Kiran Gupta Vs. State of Uttar Pradesh – paras
22,23,24,25
16.
(1994) 1 SCC 150 – Anzar Ahmed Vs. State of Bihar
– paras 13,14,19,20
17.
(2006)12 SCC 317 – UPSC Vs. L.P. Tiwari – paras
11,12
18.
(1998) 2 SCC 566 – Siyaram Vs. UOI – paras
4,6,8,10
19.
(2007) 14 SCC 641 – UOI Vs. S.K. Goel – paras
27,29,30
20.
(2008) 9 SCC 242 – UOI Vs. Pushpa Rani – para 37
21.
(1995) 3 SCC 486 – Madan Lal Vs. State of Jammu
& Kashmir –
paras 6,9,10,17,18
22.
(2008) 2 SCC 119 – M.V. Thimmaiah Vs. UPSC – paras
19,21,23,30,33,34,36
to 39
23.
(2008) 7 SCC 53 – Girias Investments Pvt. Ltd. Vs.
State of Karnataka –
paras 14 to 23
24.
(1997) 9 SCC 151 – All India State Bank Officers Federation Vs.
UOI – paras 21,22,23,30
25.
AIR 1992 SC 1806 – NIMHANS Vs. K. Kalyana Raman – para 7
26.
(2008) 14 SCC 306 – B.C. Mylarappa Vs. Dr. R. Venkatasubbaiah
– paras 24,25,26,27,28
Shri Krishna S. Dixit, learned
counsel for Respondent No.5 has in addition relied on the following judgments.
1.
1986 (Supp) SCC 617 – R.S. Dass Vs. UOI & Ors.
2.
(2002) 1 SCC 145 – Parmeshwar Prasad Vs. UOI &
Ors.
10. Coming to Issues A-I and A-II
The IAS (Appointment by Selection)
Regulation, 1997, reads below:
4. State Government to send proposals for consideration of the
Committee:- (1) 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 propose
the person for consideration of the
Committee. The number of person proposed for consideration of the Comittee shall not exceed five times
the number of vacancies proposed to be filled during the year:
Provided
that .... (not relevant for our purpose).
11. As a preparation to the
above, the Chief Secretary sent a letter
dated 23.4.2010, Annexure-A/3 having the following components.
(a) It asked the Secretaries of administrative
departments to recommend names of suitable non-SCS officers of outstanding
merit and ability to be forwarded to him before 31.05.2010.
(b) He requested them to recommend only names
of such officers who had consistently clear and outstanding service record
without any blemish or complaint or DE or judicial proceedings pending or
contemplated against them and further that their last 10 APR should have
Outstanding or Very Good remarks consistently.
(c) He requested the departmental secretaries to keep their
recommendations to the barest minimum viz., one or two names or at the most
three for larger departments having field officers. He also requested them to have the
recommendation endorsed by the Minister in-charge of the department.
(d) He mentioned that proposals received
after 31.05.2010 would not be considered.
In the backdrop of these instructions and accepting some late coming
names for consideration, as is mentioned in the minutes of the Screening
Committee, 36 names in all were screened as per the list at Annexure-A/5. It
shows more than 3 names from certain departments. Some names have been received after
31.5.2010, but before 17.8.2010 which is the date of the Screening Committee
meeting,
12. The learned counsel for
the applicants questions the propriety of entertaining more than 3 names from
any department and also entertaining some names that came after due date given
in the Chief Secretary's letter.
13.
The applicants' counsel has relied on (1993) 3 SCC – 319 – P.M. Bayas Vs. Union of India
& Ors, wherein the Hon'ble Supreme Court in para 2 has interpreted
the expression "in special cases from among persons" in Rule 4(1)(c)
and the expression "in special circumstances" in Rule 8(2) of the
Indian Administrative Service (Recruitment) Rules, 1954 (the Rules).
We quote
para 9 as under:
..."In
special cases from among persons" means the selection as special cases of
the persons who has established their outstanding merit and ability while
serving the State. ....It is the
outstanding merit and ability which makes him a 'special case' in termsof Rule
8(2) of the Rules.read with Regulation 3 of the regulations lays down the
procedure for making the special selection provided under Rule 4(1)(c) of the
Rules. ... Rule 8(2) which talks of "outstanding
ability and merit" when read with Regulation 3(1) and 3(4-A) of the
Regulations makes it clear that the "special circumstances" requires
to be seen are (i) the existence of officers with 12 years of continuous
service in a gazetted post under the State Government – other than State Civil
Officers – who are of outstanding merit and ability and (ii) the satisfaction
of the State Government that, in public interest, it is necessary to consider
such officers for promotion to the IAS."
Relying on this, the learned counsel argues that several names that
got included in the short list of 16
officers did not satisfy this criterion and therefore should not have been sent
to the UPSC Selection Committee.
14.
Shri P.S. Rajagopal, learned senior counsel
appearing for Respondent No.12 submitted that if an officer is eligible as per
his length of service and as per his outstanding service record, then, he
cannot be denied a chance to be recommended to the UPSC on the ground that a
certain procedure has been prescribed by the Chief Secretary before and during
the Screening Committee meeting or whether it was carried out or not. The officer has hardly any control over
it. In this connection, he has relied on
the following:
•
[2001] 8 SCC 378 - Laxman
Dundappa Dhamanekar Vs. Management of Vishwa Bharat Seva Simiti –
"breach of no-statutory Rule 16 would not render the appointments
of the appellants invalid".
•
Dr. Rajinder Singh Vs. State of
Punja –(2001) 5 SC 482 - para 7
"7. The settled position of law is that no
government order, notification or circular can be a substitute of the statutory
rules framed with the authority of law".
(1994) 1 SCC 754 – T.V.
Usman Vs. Food Inspector, Tellicherry Municipality, Tellicherry
"8. ... "..... an
absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if
a directory enactment be obeyed or fulfilled substantially.
•
In Dattatreya Moreshwar Vs.
State of Bombay – AIR 1952 SCC 181-
"... When the provisions of statute relate to the
performance of a public duty and the case is such that to hold null and void
acts done in neglect of his duty would work serious general inconvenience or
injustice to persons who have no control over those entrusted with the duty and
at the same time would not promote the main object of the legislature, it had
been the practice of the Courts to hold such provisions to be directory only,
the neglect of them not affecting the validity of the acts done."
•
1992 Supp (1) SCC 323 – Union of
India & Anr. Vs. Deoki Nandan Aggarwal:
"14. ...
It is not the duty of the court either to enlarge the scope of the legislation
when the language of the provision is plain and unambiguous. The court cannot rewrite, recast or reframe
the legislation for the very good reason and that it has no power to legislate. ...
Courts shall decide what the law is and not what it should be. ..."
15. On this point, after
hearing both the sides, we have come to the conclusion that we cannot find
fault with the letter dated 23.10.2010 issued by the Chief Secretary at
Annexure-A/3. The State would have a
large number of officers from non-SCS category and for the sake of
administrative convenience, it is the correct administrative step to call for
the recommendations from the Secretary of the concerned department. It is also correct to ask them to keep the
number of recommendations to a bare minimum in view of the fact that the
selection to IAS from non-SCS officers is different from the promotion to IAS
from SCS officers and very few promotions are available under this
category. This selection is open only
for those having outstanding merit and ability and it is obvious that every
officer would not fall under the category of outstanding merit and
ability. It is also correct for the sake
of administrative convenience to suggest some cut off date by which all
recommendations should be received. This
allows the office of the Chief Secretary to make proper preparation for the
Screening Committee to be held which Committee would in turn, prepare a list of
officers in the zone of consideration to be sent to UPSC. It cannot however be forgotten that such a
cut-off date is only a prescription for administrative convenience and the
Screening Committee is not so completely binded by the cut-off date so as to
totally ignore another recommendation of a genuinely outstanding officer that
may have been delayed by the department but reached before the Screening
Committee had its meeting.
16. Since the purpose of the
Screening Committee is to short list the best possible officers from amongst
the available recommended officers, such a deviation is occassionally
permissible. When to allow such a
deviation should be left completely to the Screening Committee, which consists
of very senior officers of the State, who themselves have a duty to see that
the State gets the benefit of its best officers and in whose respect there is a
reasonable presumption of integrity and sincerety to their duty. There is no need to presume that they do not
understand this requirement. Moreover,
after the entire exercise of the Screening Committee of short-listing of officers
in the zone of consideration was over, both the
applicants herein were short listed.
Furthermore, they were kept at Sl. No.2 and 1 respectively amongst all
the short-listed candidates.
17. Hence, we come to the
conclusion that the action of the Chief Secretary in issuing Annexure-A/3,
dated 23.4.2010 and thereafter holding the Screening Committee on 17.8.2010 and
short-listing officers for being recommended to UPSC and all incidential
actions taken towards that objective are as per good administrative
practices. There is no need to entertain
a challenge to these actions. Thus, we
would clearly conclude that these initial tasks as performed by the Chief
Secretary as a prelude to the Selection Committee meeting at the UPSC level
cannot be challenged in the absence any definite claim or evidence of
malafide. Therefore, we see no merit in
the argument that the short list of 15 officers prepared by the Screening
Committee is liable for ab-initio quashing.
This answers issues at A-I and A-II in para-7.A-I and 7.A-II
(supra) that the instructions of the
Chief Secretary and part deviation from those would not render the final
outcome a nullity.
18. As the present two
applicants' names have been short-listed for selection, we do not agree with
the learned counsel for the applicants that the final outcome, viz.,
appointment order dated 8.9.2011 (Annexure-A/14) should be quashed on the
ground of ab-initio irregularities in preparing the short-list.
19. Now, we deal with Issue
in para 7.A-III and 7.A-IV (supra). The
learned counsel for the applicant has also taken us into the requirement of
selecting officers of "Outstanding merit and ability" in para 5-(b)
of the OA. He submits that the average
marks given by Screening Committee which are found at Annexure-A/5 shows that
on a 9 year consideration basis, while the Sl. No.1 to 4 had 24 marks each, Sl.
No. 5 to 9 had 23, Sl. No.10 to 14 had 22 and Sl. No.15 had 21 marks out of
25. Hence, he claims that it was wrong
for the Screening Committee to have included the candidates at Sl No.5 to 15 in
short-list. They cannot be termed as having Outstanding merit and ability. It is to be noted that the 3 finally selected
candidates are G.C. Prakash at Sl. No.10, N.S. Prasanna Kumar at Sl. No.11 and
V.P. Ikkeri at Sl. No.3 and their score given by Screening Committee is 22, 22
and 24 respectively. Hence, the very
action of the State Government in forwarding 15 names to UPSC was wrong and
they should have forwarded only 4 names.
20. In this connection, he
has relied on the following two judgments of the Hon'ble Supreme Court of
India.
1. 2006 (3)
ATJ 364 – Prabhakar Singh & Anr. Vs. Union of India
"B. .... DPC downgraded junior officers from
'Outstanding' to 'Very Good' and upgraded the senior from 'Average' and 'Good'
to 'Very Good' without giving any reason or showing material to do so – Action
of DPC to keep the principle of seniority alive and giving a go-bye to merit as
envisaged by the rules not sustainable and quashed – Matter remitted back for
fresh consideration in accordance with law.
32.
... To our mind this is not intent, purpose and
scope of the guideline which has been relied upon by the respondent. Para 6.2.1.(e) as reproduced above takes into
consideration that the DPC so constituted by the UPSC should not be guided
merely by the gradings in the Crs. But
should make its own assessment on the basis of the entries in the CRs as
sometimes the overall grading in a CR may be inconsistent with the grading under
various parameters or attributes. .."
31. ....the Court while
exercising its power of judicial review must strike down arbitrariness which
has crept in the decision making process.
2. (2007) 9 SCC 497 – P. Mohanan Pillai Vs. State of Kerala &
Others-
A. Service Law – Recruitment
process – Selection – Written test and interview – Enlargement of zone of
consideration of candidates who qualified in written test for calling them for
interview – Arbitrariness – Good and sufficient reasons must be assigned –
Twelve vacancies were to be filled – Policy decision taken to call only those
who fell within the zone of three times of the number of posts (in 3:1 ratio) –
Thus initially only 36 candidates including appellant who got highest marks in
written test called for interview – But subsequently it was decided to enlarge
zone of consideration to the ratio of 4:1 – Accordingly eleven more candidates
called for interview by lowering the qualifying marks for written test to 46% -
But no reason assigned for such decision – Held, the decision prejudiced the
appellant and was arbitrary – Constitution of India, Art.1.
21. We have considered this
argument, but, do not agree with it. On
a perusal of ACRs of all the 15 short-listed candidates, we find that they have
been graded Outstanding on more than 50% occassions and occassionally, they
have received Very Good. This position
is seen over a period of 9 years (Annexure-A/5). We therefore, have no doubt that all of them
qualify as Outstanding even though in one or two occassional years, they may
have been graded as Very Good. Hence, we
find no merit in the argument that only 4 names should have been sent to
UPSC.
22. It would appear that
when the entire list of 15 candidates reached the UPSC, a table was prepared on
the basis of their ACRs as well as other relevant documents, e.g., service
record. Finally, on the date of
selection, the committee consisting of 3 members from the Karnataka State who
were also the Members of the Screening Committee and 2 more Members named by
UPSC (one of them being the Member of UPSC and another – representing Govt. of
India) met to assess suitable candidates for Selection. They would look at the
service records and also interview all the candidates. It is seen from the minutes of the Selection
Committee meeting dated 28.12.2010 from the file of the UPSC, [as obtained by
the learned counsel for the applicants under the RTI Act], that the Selection
Committee decided to allot 40 out of 50 marks each to all the 15 short-listed
candidates on account of assessment of their records and proceeded for
interview towards which the remaining 50 marks were kept.
23. Here, the learned
counsel for applicants pleads for ab-initio quashing of the selection procedure
even before interview. The learned
counsel submits that as per the norms adopted by the Screening Committee as
well as the Selection Committee. 10 marks are allotted to each remark of
Outstanding, 8 for Very Good, 6 for Good and so on, By the sheer act of
awarding 40 marks out of 50 to each candidate, the selection committee has
graded them as 80% mark-holders which is the benchmark for Very Good, but not
for Outstanding. Since that is so, the
selection committee had thereafter no business to proceed for interview as the
preliminary criterion for selection is to have officers of Outstanding merit
and ability. Hence the Selection
Committee of UPSC should also have rejected the entire list as unfit at the
very initial stage of the meeting and should not have proceeded with interview
at all. The learned counsel would submit
that giving 40 marks to each and every one out of 15 short-listed and thus
equalising them with each other was also wrong.
24. In support he quotes 2005 SCC (L&S) 738 – UPSC Vs. K. Rajaiah &
Ors.
Head note C:- Held, Court should not interfere
with the evaluation made by Selection Committee/UPSC – However, validity
of the guideliens regarding the procedure of giving overall grading as
"outstanding" only on being classified as such for four out of five
years doubtful – Indian Police Service (Appointment by Promotion) Regulations,
1955, Regns. 5(4) and (5).
Para 9: It
must take a decision reasonably without being guided by extraneous or
irrelevant consideration. But, there is
nothing on record to suggest that the Selection Committee did anything to the
contrary.
.... The classification given by the State
Government authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large
guided by the classification adopted by the State Government but, for good
reasons".
25. However, we also find the
following observation by the Apex Court in the same judgment:-
12. "....Whether this result that
follows from the application of the criterion that is being adopted by the
Commission is contrary to the statutory Regulations or whether such criteria
would be violative of Articles 14 and 16, is a matter which might deserve
serious consideration. But, in the
absence of specific challenge to the rule or the procedural guidelines spelt
out in the additional affidavit filed by UPSC and the arguments not having been
advanced on this aspect, we are not inclined to express a definite opinion on
this aspect."
26. We therefore, do not
agree with this contention. Going from
their 9 years record, as is before us, we find them all to be of almost equal
merit with minor difference. Hence, we find no fault with the Members of the Selection Committee agreeing
to give 40 marks each to all candidates thus, treating them all as equals. Giving them 40 marks cannot be interpreted as
ab-initio conclusion of "Very Good" and therefore, ab-initio
rejecting the entire panel is not warranted.
27. The learned counsel for
the applicants has strongly argued that for the purpose of appointment to IAS
by Selection from amongst the non-SCS Officers is on a different foting than
appointment by Promotion. In case of
appointment by Promotion, the responsibility of the State Govt. and the UPSC is
to select the best amongst the available.
Hence, if an Outstanding candidate is not available, then the next best
candidate who is ranked as Very Good can be appointed. In case of Appointment by Selection, however,
as in the present case, their job is not to find the best among the available,
but, the person with Outstanding merit and ability. Hence, it would be wrong for the Selection
Committee to proceed with interview, once all the Members agreed to give an
overall 40 marks out of 50 against service records to all the short-listed
candidates.
28. We feel that there is a
fallacy in this argument. The list as
available to the Selection Committee from the State Government was of
Outstanding candidates as graded by the Screening Committee. Whether they can
be said to have Outstanding merit and ability would be known only after the
entire process of marking, i.e., only after the result of the interview is also
taken into account. It cannot be said that by assigning them 40 marks out of 50
against their service records, the UPSC has already graded them as Very Good,
but not Outstanding or that it has reached finality. The marking by UPSC, whether at the end of
perusal of service records or at the end of both service records/ perusal plus
interview is only for the purpose of selecting 3 out of 15 candidates. The pre-interview marks assigned by UPSC has
a limited purpose and is in no way equivalent to giving them a gradation of
Outstanding or Very Good or Good as is done for the purpose of ACRs. We feel
that the Screening Committee, while forwarding the short-list of 15 candidates
has not erred in treating all of them as Outstanding and the Selection
Committee of the UPSC has also not erred in accepting all of them as
Outstanding and therefore, proceeding with the interview even though, they may
have assigned 40 marks to each of the candidates equally. In the end, it would hardly matter if all the
Members of the Selection Committee had agreed to assign 50 marks to each of
them instead of 40. We reiterate that
these 40 marks do not amount to treating them as not outstanding and therefore,
there is no merit in the argument that the UPSC should have ab-initio declared
all of them as in-eligible and not proceeded with the interview.
29. We are supported by the
judgment of the Hon'ble Supreme Court in the case of M.V. Thimmaiah Vs. UPSC
(2008) 2 SCC 119 and we quote.:
(2008) 2 SCC 119 – M.V. Thimmaiah Vs. UPSC.
•
31. Our
attention was invited to a decision of this Court in UPSC Vs. Hiranyalal Dev
wherein it was held as follows:
"The mere fact that
the Selection Committee erred in taking into account the non-existent adverse
remarks does not necessarily mean that the respondent should have been
categorised or considered as 'very good' vis-a-vis others who were also in the
field of choice. How to categorise in
the light of the relevant records and what norms to apply in making the
assessment are exclusively the functions of the Selection Committee...".
•
35. Our
attention was invited to a decision of this Court in Anil Katiyar Vs. Union of
India wherein it was observed as follows:
"The
question is whether the action of DPC in grading the appellant as 'very good'
can be held to be arbitrary .... Having
regard to the said confidential procedure which is followed by the Union Public
Service Commission, we are unable to hol that the decision of DPC in grading
the appellant as 'very good' instead of 'outstanding' can be said to be
arbitrary.
•
36. Therefore,
in view of a catena of cases, courts normally do not sit as a court of appeal
to assess ACRs and much less the Tribunal can be given this power to constitute
an independent Selection Committee over the statutory Selection Committee.
Even in the case of K.A. Nagamani Vs.
Indian Airlines (2009) 1 SCC 515, Hon'ble Supreme Court held as under:
"46. .....We cannot sit in appeal over the
assessment made by the Selection Board and substitute our own opinion for that
of the Board. In the result, we find
that the decision to select and appoint respondents 3 and 4 is not vitiated for
any reason whatsoever.
30. The original application
was filed on 11.01.2011, that is, Shortly after the Selection Committee meeting
at UPSC on 28.12.2010. a stay was
granted but later vacated on 01.03.2011 subject to the outcome of OA, the UPSC
and the State Govt. proceeded with completing the process and appointment order
was issued on 8.9.2011. Thereafter, on
19.1.2012 the applicant applied for amending the OA for the purpose of bringing
new facts on record and he was allowed by order dated 01.03.2012. We find the
sequence of events as below:
1)
20.9.2010 - the State Govt. forwarded names of
short- listed candidates to
UPSC (Annexure- A/4);
2) 09.12.2010 - letter was sent to the
short-listed candidates asking them
to attend the interview (Annexure-A/6)
3) 28.12.2010 - date of interview by UPSC;
4) 11.1.2011 is the date on which the OA was
filed. Interim relief was
granted but was vacated on 1.3.2011 subject to outcome of OA.
5) 8.9.2011 - date on which the
appointment order was issued
6) 13.7.2011, - the State Govt. fled its
reply;
7) 01.12.2011 - MA 508/2012 for amending
the OA by bringing new facts in the
OA was filed;
8) 19.01.2012 - the MA was allowed and
9) 15.02.2012 - amended OA was filed.
10) 19.7.2012 - reply by UPSC was filed.
31. We find it necessary for
the sake of record to observe that the applicant had originally filed the
application on 11.01.2011 with the following prayers:
i)
to set aside the proposal made in the letter dated
20.09.2010 issued by Respondent No.3 as at Annexure-A/4; and
ii)
to set aside the proceedings of the Screening
Committee dated 17.08.2010 as at Annexure-A/5; and
iii)
to direct the Respondent No.2 to start afresh the
process of proposing the names of the eligible non-SCS officers and
iv)
to grant such other relief (s) as this Tribunal deems
fit in the facts & circumstances of the case and in the interest of
justice.
32. The main two reasons for
this were:-
i) that the Respondent
No.3 committed an error in seeking proposals from its various departments in
respect of Non-SCS officers who have been graded 'Very-Good' instead of such
officers graded ony Outstanding.
ii) that the Screening Committee, while
determining the relative merit of officers who got identical points/marks to
determine their position in the order of merit list, has adopted the procedure
of examination of ACRs/APRs in all parameters of the report and the remarks of
various authorities about their merit and performance. However, this yardstick and method was not
followed while considering the case of all the proposals. (Refer para 5(d) of amended OA).
These
points have already been discussed by us in paragraph Nos.10-17 supra.
33. Thereafter, the
applicants have moved MA No.508/2011 for amending the OA claiming to have come
across new information during the pendency of the OA and praying the following
additional reliefs:
i)
To hold that the specific procedure/guidelines
prescribing 50% of marks for viva voce (interview) at Annexure-A/10 as bad; and
ii)
To set aside the notification dated 8.9.2011 at
Annexure-A/14 issued by Respondent No.1, giving IAS appointment to 3 officers..
34. The grounds adduced for
grant of the above reliefs are as under:
We quote from para 5 (h) of the amended OA.
"Three
out of five members of the Selection Committee had also worked as the Members
of the Screening Committee, who selected and forwarded the list of 15
candidates to UPSC. They had graded all
these officers as Outstanding. Hence,
they should not have agreed to the Selection Committee giving them 40 marks for
service records which is the benchmark of Very Good but not of
Outstanding. Their silence on this point
vitiates the selection procedure.
Secondly, when they had differentiated in the marks of the 15 candidates
ranging from 24 to 21 while preparing the short-list for UPSC, they should not
have agreed to the Selection Committee giving 40 equal marks for their service
records".
35. Another point made in
the amended OA relates to certain discrepancies in the ACRs of the 3 finally
selected candidates with regard to how the Reporting, Reviewing and Accepting
authorities have written them and how Screening Committee interpreted them and
these are culled out as Annexures-A/11, A/12 and A/13 and it is argued that in
view of these discrepancies, the interview by UPSC and the final selection of
Respondents No.5, 12 and 13 should be quashed.
36. We have seen these so
called discrepancies and we do not agree that they are of such grave nature as
to preclude the finally selected candidates from being short-listed or
appointed. Moreover, this aspect must
have been examined by the UPSC and they have not found fault with it.
37. Finally, the applicant
challenges the guidelines adopted by UPSC for distribution of marks and prays
that these guidelines should be set aside as illegal, arbitrary and prone to be
easily abused. He further claims that
they have been abused in the present selection and hence, the selection must be
quashed.
38.
Here, we would reiterate that the short listed candidates were informed by one
common letter dated 9.12.2010 (Annexure-A/6), that they have to appear for
interview before the UPSC on 28.12.2010. This list by itself, does not indicate
to have been prepared either on the basis of the seniority of the officers or
on their merit. This is a simple letter with
the serial number given to each of the officer, thus, making all the officers
as equals with outstanding merit and ability.
No presumption can be made about merit simply by looking at the serial
number of the names in the list. The two
applicants can come to know of their higher marks as viewed from the eyes of
Screening Committee members only when they sought such information for the
purpose of filing this OA or the amended OA.
39.
Now, we come to the question of estoppel raised by
all the respondents (Issue 7-D). It was argued by the learned counsel
appearing for Respondent No.3 State Government, that the short-listed
candidates were all informed by one single communication dated 09.12.2010 that
they all were to appear for interview before the UPSC. This means that they had the chance and time
to update themselves about the percentage of marks allocation, methodology of
interview, etc. Hence, both the counsels
for Respondents No.2 and 3 as well as Shri P.S. Rajagopal, learned Senior
counsel appearing for Respondent No.12 and Shri Krishna S. Dixit, learned
counsel appearing for Respondent No.5, submit that having participated in the
interview, the applicants are estopped from raising any objection to the pre
interview procedure or to the allocation of weightage for interview.
40. It was heavily argued by
the learned counsel for the applicants that they are not aware of the fact that
UPSC would be putting a weightage of 50% marks on the interview. The learned counsel for the private Respondent
No.5 and Respondent No.3, the State Govt., have elaborately argued the question
of estoppel and have cited several judgments.
They would contend that in view of those judgments, once the applicants
choose to remain present in the interview, their presence by itself is
sufficient to debar them from agitating the outcome of interview in any form
whatsoever.
41. We have gone through
the following citations.
1. AIR
1997 SC 2083 – University of Cochin Vs. N.S. Kanjoonjamma -
"The Apex Court has held that
an applicant who participated in the
selection process, but not selected is estopped from challenging the process of
selection. Omission on behalf of
respondent department to mention in the advertisement that it was a special
recruitment was held as having no consequence.
2. (2008)
4 SCC 171 – Dhananjaya Malik Vs. State of Uttaranchal –
"Estoppel – Unsuccessful
candidates posing challenge that recruitment was not done according to
statutory rules – Prescribed educational qualifications were not adhered to
Held, having unsuccessfully
participated in the process of selection without any demur, they are estopped
from challenging the selection criterion – if they had any valid objection,
they should have challenged the advertisement and selection process without
participating in the selection."
3. (2006)
6 SCC 395 – K.H. Siraj Vs. High Court of Kerala –
73. "The appellant – petitioners having
participated in the interview in this background, it is not open to the
appellant that petitioners to turn round thereafter when they failed at the
interview and contend that the provision of a minimum marks for the interview
was not proper.
It was so held by this Court in para 9 of Madan
Lal Vs. State of J & K (1995) 3 SCC 486 :- as under:
"9. ....
It is now well settled that if a candidate takes a calculated chance and
appears at the interview, then, only because
the result of the interview is not palatable to him, he cannot turn round and
subsequently contend that the process of interview was unfair...."
•
Om Prakash Shukla Vs. Akhilesh
Kumar Shukla – 1986 Supp. SCC 285
"......when the
petitioner appeared at the examination without protest and when he found that
he would not succeed in examination he filed a petition challenging the said
examination, the High Court should not have granted any relief to such a
petitioner."
42. We do not agree with the
learned counsels for respondents that the very act of appearing in the
interview can be sufficient for applying the principle of estoppel. It will depend on certain situations that
accompany the action of the applicants and respondents. The crux of the applicants' arguments is that
the selection should be quashed on three sets of grounds, the first set of
grounds being alleged ab-initio illegality as has been discussed in paras 11-17
supra. The other set of ground is on the
question of marks and weightage given for interview. The 3rd set of grounds is on the
actual conduct of the interview and certain alleged omissions and commissions
during the interview.
43. We feel that the
principle of estoppel would apply only to the 2nd set of argument,
viz., the weightage of 50% marks for interview, in view of the fact that UPSC
norms of giving 50 marks for interview had been in vogue since 1997. All the short-listed candidates being senior
officers in the State Govt. cannot take the plea that they were unaware of such
a weightage at the time of interview or that, had they been aware, the outcome
of the interview would have been different.
44. We feel, to the first
set of arguments, the principle of estoppel does not apply. The first set deals with some of the alleged
mistakes of the Screening Committee or of the Selection Committee as discussed
at para 11-24 above. The period between
09.12.2010 which is the dates of issuance of intimation to them and 28.12.2010
which is the date of interview is too short to allow the applicants to think of
any other aspect except to focus on their readiness for interview. However, on merits of those arguments, we
have already rejected them.
45. As for the 3rd
set of grounds, the principle of estoppel would also not apply because the
conduct of interview and the manner or propriety in which it was conducted can
be challenged by the applicants only after they have appered in the interview.
46. We therefore, consider
it necessary to examine all the three sets of arguments of the learned counsel
for the applicant, not vis-a-vis the question of estoppel but on the actual
situation.
47. On the question of
weightage for interview, the learned counsel for the applicants has cited the
following judgments.
(1997) 1 SCC 60 – Radhey Shyam Singh Vs. UOI.
"10. The argument advanced by the learned
counsel for the respondents that this process of zonewise selection has been in
vogue since 1975 and has stood the test of time cannot be accepted for the
simple reason that it was never challenged by anybody and was not subjected to
judicial scrutiny at all. If on judicial
scrutiny it cannot stand the test of reasonableness and constitutionality it
cannot be allowed to continue and has to be struck down. But we make it clear that this judgment will
have prospective application...."
(1985) 4 SCC 417 – Ashok Kumar Yadav Vs. State of Haryana –
"26. We may now, in the
background of this discussion, proceed to consider whether the allocation of as
high a percentage of marks as 33.3% in case of ex-service officers and 22.2% i
case of other candidates, for the viva voce test renders the selection process
arbitrary. ....The spread of marks in
the viva voce test being enormously large compared to the spread of marks in
the written examination, the viva voce test tended to become a determining
factor in the selection process, because even if a candidate secured the
highest marks in the written examination, he could be easily knocked out of the
race by awarding him the lowest marks in the viva voce test and
correspondingly, a candidate who obtained the lowest marks in the written
examination could be raised to the top most position in the merit list by an
inordinately high marking in the viva voce test.
29.
..... The percentage of marks allocated for the
viva voce test by the Union Public Service Commission in the case of selection
to the Indian Administative Services and other allied services is 12.2 and that
has been found to be fair and just, as striking a proper balance between the
written examination and the viva voce test.
We would therefore direct that hereafter in case of selections to be
made to Haryana Civil Services (Executive Branch) and other allied services,
where the competitive examination consists of a written examination followed by
a viva voce test, the marks allocated for the viva voce test shall not exceed
12.2% of the total marks taken into account for the purpose of selection.
(1991) 1 SCC 662 – Mohinder Sain Garg V. State of Punjab –
"Service Law – Appointment – Selection – viva voce test –
allocation of marks – subordinate services – in case of composite process of
selection comprising written examination and interview of candidates fresh from
schools/colleges for public employment, held, allocation of more than 15% of
total marks for viva voce test would be unreasonable and excessive –
accordingly allocation of 25% of total marks for viva voce test in selection of
Excise and Taxation Inspectors arbitrary and excessive – Constitution of India
– Art. 14.
(2011) 6
SCC 605 – Director General, ICAR & Ors. vs. D. Sundara Raju
"A. ... Held, said 50% allocation was highly
excessive and totally unjustified, particularly when fact that interview would
also be held to evaluate suitability of candidate for said post was not
disclosed to respondent candidate – Procedure evolved by Selection Committee
was totally arbitrary and contrary to settled legal position – "
48. Per contra, the
respondents have relied on the following judgments.
•
4.(B) 50. R.S.
Parti Vs. Indian Airlines Corporation WP (C) No.3364 of 1990 decided on
31.8.1995 in which the Court took the view that post of Deputy Manager belongs
to upper managerial cadre and allocation of 50% of marks for the interview and
50% marks on the evaluation of the ACRs is not arbitrary. Yet another aspect
remains to be dealt with. The appellant
made an attempt to challenge the selection procedure in which 50% marks were
reserved for interview and balance 50% marks on evaluation of the annual
confidential reports. The High Court in
this regard rightly relied upon
•
WP No.17858/2002 (Ka.
Jeevanandam Vs. UOI & Ors.) decided by a Division Bench of Madras High
Court on 11.12.2002.
"3.....
the onus for deciding the percentage falls on the Commission, which is the
independent and constitutional authority and is the qualified authority in such
matters. Therefore, the Commission have
taken a decision to grant 50% marks for assessment of service records and 50%
marks for personal interview. These
norms are uniformly applied in the matter of appointment by selection to the
IAS of all states/cadres".
6. The petitioner had contended before the
Chennai Bench of the Central Administrative Tribunal that the allocation of 50%
marks was arbitrary and unconstitutional and had relied upon the decision of constitution
bench of the Supreme Court in the case of
Ashok Kumar Yadav Vs. State of Haryana – (1985) 4 SCC 417.
That was
the case where the Haryana Public Service Commission for recruitment to the
Haryana Executive Service has assigned 22.2% of marks for the interview which
followed the competitive examination for the general candidates and 33.3% for
those who were ex-service officers.
Though the Court held that marks so allocated had infected the selection
process with the vice of arbitrariness, the actual selections were not
interfered with.
8.
The fifty percent of the marks has been allocated
for interview conducted by a high level committee. The composition of the committee is such as
to ensure the presence of persons with long years of experience in the field of
administration and persons who have attained high status within the hierarchy,
and whose knowledge of the requirements of administration and whose ability to
assess the officers outside the Indian Administrative Service for being appointed
to the Indian Administrative Service is beyond any dispute or question. The committee had also on it a member of the
Public Service Commission which is the expert body in the matter of recruitment
to the public services, and which has accumulated expertise in the matter of
assessment of the suitability of candidates for recruitment to the various
posts in the public services of the union."
(2000) 7 SCC 719 – Kiran Gupta Vs. State of Uttar
Pradesh:
"D.
Service Law – Recruitment process – Selection – Interview – Selection solely
based on interview, held, not per se illegal – Further held, there can be no
rule of universal application with regard to allotment of percentage of marks
for interview, which depends on several factors and the permissible percentage
has to be decided on facts of each case – Recruitment process – Selection –
Interview – Allotment of marks for."
(2006)12 SCC 317 – UPSC Vs. L.P. Tiwari – Head
note:M
•
"Service
Law – Promotion – Selection Committee – Select List prepared by – in absence of
any allegation of mala fides, held, subjective satisfaction of the Committee,
an expert body, is not open to interference by Tribunal/Court on ground of
assessment of comparative merits of the candidates undertaken by the Committee
on the basis of their service records as being erroneous – Tribunal/Court
cannot itself undertake the exercise of assessing merits of the candidates for
arriving at such finding against the Committee – Direction of Tribunal/Court to
hold a Review DPC for the purpose of assessment was erroneous when under the
relevant Regulations selection was to be made by the Selection Committee only –
Indian Forest Service (Appointment by Promotion) Regulations, 1966, Regns.3 and
(4)."
49.
The crux of many of the judgments is that allocation
of 50 marks for interview is rather on a higher side. The learned counsel vehemently argued that
allocation of 50 marks for interview leaves a wide scope for arbitrariness and
favouritism in the hands of the Members of the Selection Committee. About 10 years of hard work of an officer
which has earned him the grading of Outstanding gets compared with a interview
on equal footing. Hence, such weightage
is bad in law. We find some merit in the
argument of the learned counsel for the applicants and we are also of the
opinion that the weightage of 50 marks given for interview as against the
weightage of 50 marks given to service
record of 10 years (as was done by Selection Committee) needs re-examination.
It would perhaps be better to allocate same weightage to interview as the
weightage given in the main IAS appointments where the marks in the written
examination can be treated as equivalent to the marks allocated for the service
record of the officers to be promoted,
50. However, since such a practice
has been in vogue with UPSC since 1997, and has been consolidated as per the guidelines at Annexure-A/10, we
would leave it for UPSC's re-consideration with prospective effect. The applicants cannot be allowed at this
stage to plead ignorance of these guidelines for distribution of marks even
though, it may be factually correct and Therefore, applicant cannot now
challenge this so-called high weightage to interview.
51. The prayer at para 8(3)
of the OA requesting to hold that a specific procedure and guidelines
prescribing 50% marks for viva-voce as bad, is rejected except for directing
Respondents No.1 and 2 to apply their mind to the issue with prospective
effect.
52. In the amended OA at
para 4 (j) and at para 5 (g) and (h), it is averred that the interview period
ranged from a few minutes to a maximum of 15 minutes and the Selection
Committee has concluded the entire process of interviewing 15 candidates in one
working day. The applicant has relied on
1995 Supp (1) SCC 206 – Satpal & Ors. Vs. State
of Haryana & Ors.
"A. Service Law –
Appointment – Selection – Interview – Length of time to be devoted per
candidate and number of candidates to be interviewed in a day – Interviewing
400-600 candidates on a single day, held, rightly found by the High Court to be
a mere farce or mockery as in such a case not more than two minutes' time could
be devoted to each candidate and effectively interviewing such a large number
of candidates on a single day would be humanly impossible – Haryana Revenue
Patwaris (Group 'C') Service Rules, 1981.
53. This averment has not
been denied by Respondent No.2, UPSC.
Hence, we would like to comment upon it.
It was urged by all the respondents that the case of M.V. Thimmaiah Vs. UPSC – (2008) 2 SCC 119 –
is very much relevant in this case as it arises from the question of
Appointment to IAS by Selection from non SCS officers in Karnataka. The applicant averred that allocation of high
marks for interview has a potential of making the selection arbitrary. To this, para 19 of the above judgment says:
"19. ...
The allegation of mala fide is very easy to be levelled and it is very
difficult to substantiate it, specially in the matter of selection or whoever
is involved in the decision-making process.
People are prone to make such allegations but the courts owe a duty to
scrutinise the allegation meticulously.
Similarly, on the point of interfering with the selection made by the
UPSC committee:
21.
... The
courts cannot sit cannot sit as an Appellate Authority to examine the
recommendations of the Selection Committeelike the court of appeal. This
discretion has been given to the Selection Committee only and courts rarely sit
as a court of appeal to examine the selection ....
39. ....
the Selection Committee is constituted by the Commission and headed by
the member of the Commission, we have to trust their assessment unless it is
actuated with malife or apparent mistake committed by them. It is not the case of pick and choose, while
selection has been made rationally. The
selection by expert bodies unless actuated with malice or there is apparent
error should not be interfered with."
54. The Appointment to IAS
by Selection from amongst the non SCS officers is a very rare chance that can
come in the life of a non SCS officer working in the State. Out of a few hundred officers who may have
the requisite length of service for being eligible for such appointment, not
more than 10 are given the actual Appointment to IAS by Selection in any given
year in any State. Such an appointment
therefore, is extremely precious. The
non SCS officers have to not only possess outstanding merit and ability, but
also, demonstrate it continuously over a long period of time before they can
even be recommended to the Screening Committee of the State. Thereafter, some of them get a chance to be
recommended to the Selection Committee and interview and only one out of 5 of
such short-listed officers get the actual appointment into IAS. Such being the case, a great responsibility
is cast upon the Selection Committee in their conduct of interviews. No candidate can be thrown out just with 3 or
4 initial questions or within a few minutes.
Every officer must be given a fair and reasonable opportunity during the
interview to demonstrate his or her knowledge, attitude and merit. A high weightage of 50% marks for interview
can be justified only if the candidates also find the whole process of
interview to have been judiciously conducted and not perfunctory. The candidate must feel that he or she was
given reasonably sufficient time to put forth his or her merit. We therefore, find it necessary to direct
Respondent No.2 to also frame certain preliminary guidelines on the methodology
of interview keeping in mind the fact that any candidate appearing before them
is of a proven merit and ability for the period of more than 5 continuous
years.
55. In the instant case,
however, the averments cannot come to the rescue of the present applicants
because not a word has been said whether the applicants themselves were given
or not given sufficient time for their assessment in the interview. It is to be noted that atleast 4 members
of the Selection Committee are very
senior officers of the same Karnataka Cadre, who possess required general knowledge
about the conditions in the State and would therefore, be more quick in
assessing the offices who are also from their own State. Further, there have been no allegation of any
bias or favouritism shown by any of these members of the Selection Committee. Only an undesirability of such a high
weightage to the interview or to the possibility of not allowing sufficient
time has been argued again and again.
56. We therefore, conclude
that the OA fails and is dismissed.
Respondent No.2, UPSC is, however, directed to reconsider the question
of allocating 50 marks for interview thus giving equal weightage for interview
and service records. They are also
directed to frame certain guidelines as to how the interview shall be
conducted, especially, with regard to sufficiency of time given per candidate.
57. With the above
observations, the OA is dismissed with no order as to costs.
(V. AJAY KUMAR) (LEENA
MEHENDALE)
MEMBER (J) MEMBER (A)
psp.
No comments:
Post a Comment