Saturday, January 5, 2013

******** OA No.46 AND 47 of 2011 ??????? (IAS -- by selection)



TODAY, THIS THE ................. DAY OF ..........., 2012


HON'BLE SHRI V. AJAY KUMAR             ..          MEMBER (J)

1. Dr. K.N. Vijayaprakash,
    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)


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,
     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,
     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,

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,

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)


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:

Service records with
particular reerence to
ACRs for the five preceding years.
50% weightage
50 marks

Personal Interview
50% weightage
50 marks

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 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)     

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