Karnataka High Court
Dr. M. Ramegowda vs Union Of India on 6 January, 2023
Bench: G.Narendar, P.N.Desai
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WP No. 19913 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE P.N.DESAI
WRIT PETITION NO. 19913 OF 2022 (S-CAT)
BETWEEN
1. DR. M. RAMEGOWDA,
S/O LATE MUNISHAMAPPA,
AGED ABOUT 54 YEARS,
WORKING AS PRIVATE SECRETARY TO
Digitally signed
by NANDINI D EXCISE MINISTER, VIDHANA SOUDHA,
Location: High BANGALORE-560001.
Court of
Karnataka
2. SRI PRABHAKAR H.G.,
S/O GOPAL GOWDA,
AGED ABOUT 43 YEARS,
WORKING AS PRIVATE SECRETARY TO
SERICULTURE YOUTH EMPOWERMENT
AND SPORTS MINISTER,
VIDHANA SOUDHA, BANGALORE-560001.
3. SRI SHIVAPUTRA,
S/O LATE BABURAO,
AGED ABOUT 43 YEARS,
WORKING AS JOINT SECRETARY,
KARNATAKA BUILDING AND
OTHER CONSTRUCTION WORKERS
WELFARE BOARD, DAIRY CIRCLE,
BANNERGHATTA ROAD,
BANGALORE-560029.
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4. DR. SOMANATH,
S/O GURAPPA,
AGED ABOUT 43 YEARS,
WORKING AS
INTERNAL FINANCIAL ADVISOR (IFA),
PUBLIC WORKS DEPARTMENT SECRETARIAT,
VIKASA SOUDHA,
BANGALORE-560001.
5. DR SABEER AHMED MULLA,
S/O ABDUL WAHAB MULLA,
AGED ABOUT 48 YEARS,
WORKING AS JOINT DIRECTOR,
COMMISSIONER OFFICE,
DEPARTMENT OF SOCIAL WELFARE,
M S BUILDING,
BANGALORE-560001.
6. SMT. URMILA B,
D/O SHIVARAMA V,
AGED ABOUT 49 YEARS,
DIRECTOR, (SCSP)/(TSP) CELL,
DEPARTMENT OF SOCIAL WELFARE,
KALYANA KENDRA, YAVANIKA,
NRUPATHUNGA ROAD,
BANGALORE-560001.
7. DR H NATARAJU,
S/O HANUMANTHAIAH,
AGED ABOUT 45 YEARS,
WORKING AS MANAGING DIRECTOR,
DR. BABU JAGAJEEVAN RAM LEATHER
INDUSTRY DEVELOPMENT CORPORATION,
VASANTH NAGAR,
BANGALORE-560052.
8. PRADEEP B.S
S/O SHARANAPPA A.K
AGED ABOUT 45 YEARS,
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WORKING AS JOINT DIRECTOR,
BACKWARD CLASSES
WELFARE DEPARTMENT,
D.DEVARAJ URS BHAVAN,
VASANTH NAGAR,
BANGALORE-560052.
...PETITIONERS
(BY PROF. RAVIVARMA KUMAR, SR. ADV. FOR
SRI. VIJAYA RAGHAVA SARATHY H M, ADV.)
AND
1. UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF
PERSONNEL AND TRAINING,
MINISTRY OF PERSONNEL,
PUBLIC GRIEVANCES AND PENSIONS,
NORTH BLOCK,
CENTRAL SECRETARIAT,
SARDAR PATEL BHAVAN,
PARLIAMENT STREET,
SANSAD MARG, NEW DELHI-110001.
2. THE STATE OF KARNATAKA,
REPRESENTED BY ITS
CHIEF SECRETARY,
VIDHANA SOUDHA,
BANGALORE-560001.
3. THE STATE OF KARNATAKA,
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS,
VIDHANA SOUDHA,
BANGALORE-560001.
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4. KARNATAKA PUBLIC
SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY,
UDYOG SOUDHA,
BANGALORE-560001.
5. UNION PUBLIC
SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY,
DHOLPUR HOUSE,
SHAHAJAHAN ROAD,
DELHI-110069.
...RESPONDENTS
(BY SRI. B PRAMOD, CGC FOR R1,
SRI. DHYAN CHINNAPPA, AAG A/W
SRI. H.R.SHOWRI, AGA FOR R2 & R3,
SRI. K.M.PRAKASH, ADV. FOR R4,
SRI. VISHNU BHAT, ADV. FOR R5.)
THIS WRIT PETITION IS FILED UNDER SECTION 19 OF
THE ADMINISTRATIVE TRIBUNALS ACT, 1985 PRAYING TO
ISSUE A APPROPRIATE WRIT ORDER OF DIRECTION IN THE
NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER
PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL IN
ORIGINAL APPLICATION No-170/395/2022 DATED 23.09.2022
(ANNEXURE-A) AND CONSEQUENTLY ALLOW THE ORIGINAL
APPLICATION BY SET ASIDING THE IMPUGNED ORDER DATED
10.02.2022 BEARING No. e-DPAR 203 SAS 2021 PASSED BY
THE RESPONDENT No-3 (ANNEXURE-A5 PLACED AT
ANNEXURE-B) AND IMPUGNED NOTIFICATION DATED:
07.09.2022 BEARING No.PSC 647E(1)/2022-23 ISSUED BY THE
RESPONDENT No-4 (ANNEXURE-A6 PLACED AT ANNEXURE-B).
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT
OF ORDER THIS DAY, G.NARENDAR J., MADE THE FOLLOWING:
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ORDER
Heard the learned senior counsel Prof. Ravivarma
Kumar along with the learned counsel Sri. Vijaya Raghava
Sarathy H.M. on behalf of the petitioners and the learned
senior counsel and Additional Advocate General Sri Dhyan
Chinnappa along with the learned Additional Government
Advocate Sri. H.R. Showri on behalf of respondent No.2
and 3 and Sri B. Pramod, learned Central Government
Counsel for respondent No.1 and the learned counsel Sri
K.M. Prakash for respondent No.4 and the learned counsel
Sri Vishnu Bhat on behalf of respondent No.5.
2. The instant writ petition arises out of an order
passed by the Central Administrative Tribunal, Bengaluru
Bench, whereby, the Tribunal was pleased to reject O.A.
No.170/00395/2022 by its order dated 27.09.2022, which
is impugned herein. By the said order, the Tribunal was
pleased to negative the challenge raised by the petitioners
to the proceedings of the 3rd respondent bearing
WP No. 19913 of 2022
No.e-DPAR 203 SAS 2021 dated 10.02.2022 and also the
challenge to the notification bearing No. PSC 647 E
(1)/2022-23 dated 07.09.2022 issued by the 4th
respondent. A further direction was also sought to the 2nd
respondent and the 3rd respondent to continue the
selection process pursuant to Note dated 21.08.2021 and
thereby consider the case of the petitioners for
appointment by selection to the post of Indian
Administrative Service under Indian Administrative Service
(Appointment by Selection) Regulations, 1997.
3. The Tribunal has concised the ground of
challenge in paragraph 31 and has answered the same in
paragraphs 32, 33 and 34. The findings rendered by the
Tribunal to reject the O.A. are as follows:-
"(i) Regulation 4 exclusively entrust the State
Government with the responsibility to initially
shortlist suitable names of Officers of Outstanding
merit and ability.
WP No. 19913 of 2022
(ii) That the Regulations do not prescribe any
particular mechanism that is to be followed by the
State Government, while assessing the relative merit
and ability of the officers to be short listed. Hence,
the State Government is free to adopt any suitable
and reasonable mechanism."
4. In paragraph 33 it is reasoned that the State
Government considers the new mechanism has been more
transparent and objective method for short listing the
names. In paragraph 34, in view of the above reasoning,
it is concluded that it is within the legislative competence
of the State to prescribe a new methodology with the
purpose of selection and consequently rejected the
contention that prescribing a new methodology is beyond
the legislative competence of the State. While doing so,
the Tribunal has failed to analyze and examine whether
the State Public Service Commission is within its
competence to hold a selection exam which is not for a
selection to a post in the State services.
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5. At the outset, the approach of the CAT itself is a
little perplexing. It appears the application has been filed
on 19.09.2022 and has been disposed of by the impugned
order dated 23.09.2022. In a matter where issue of
legislative competence of the State to legislate by way of
an Executive Order, has been raised, the Tribunal has
proceeded to pass orders even without awaiting
objections. A reading of the order also does not disclose,
as to whether the respondents were heard or not?
Apparently, there are no precedents, laying down
guidelines in similar circumstances or settling the law in
respect of the issues raised before it.
6. Statement of objections are preferred by the
respondent before this Court and is verified by Under
Secretary to Government in the Office of the 3rd
respondent. No objections have been preferred by either
the Union (R.1) or the State Public Service Commission
(R.4) or the Union Public Service Commission (R.5).
WP No. 19913 of 2022
7(i) Paragraph 1 of the Statement of Objections
deals with the order impugned in the writ petition.
(ii) Paragraph 2 deals with the relief sought.
(iii) Paragraphs 3, 4, 5, 6 and 7 deal with the basic
premise on which the challenge is premised.
(iv) Paragraphs 9, 10, 11 and 12 deal with the
various provisions of the Central Enactment.
(v) Paragraphs 13, 14, 15 and 16 deal with the
methodology associated with short listing candidates to be
sponsored to the select committee and thereafter, to the
Commission and thereafter, to the first respondent for
selecting and appointing the officers of the State to the
Union Services.
(vi) Paragraphs 17 and 18 again deal with the
provisions Under Central Enactment.
(vii) Paragraph 19 deals with the Notification issued
by the KPSC which is also impugned.
(viii) Paragraph 20 the respondent claims that the
State Government is entrusted with the responsibility of
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short listing suitable names in the ratio of 5 times the
notified vacancies. It further elaborates that the
provisions do not prescribe any mechanism to be followed
by the State Government and hence, it is open to the
State Government to adopt any suitable or reasonable
mechanism. Further reliance is placed on the observations
of the Hon'ble Apex Court rendered in Para 17 in B.
Amrutha Lakshmi vs. State of Andhra Pradesh and
Others1.
(ix) In Paragraph 21, it is asserted that the
methodology adopted as a transparent one. That the said
mechanism enables the State to preliminarily assess the
merit and ability of eligible candidates and the
methodology being one prescribed under the existing
Regulations it is within the competence of the State. The
adoption of the new mechanism does not imply nor
amounts to any amendment to the Central Regulations,
1997.
(2013) 16 SCC 440
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(x) In Paragraph 23, it is submitted that if any
selection process, for any particular year is not completed
by the 31st of December, the vacancies would be carried
forward to the subsequent year.
(xi) In Paragraphs 24, 25 and 26, the number of
vacancies and the year to which they pertain and how they
arose, are detailed.
(xii) In Paragraph 29, it is contended that the reason
for the present impugned legislation is the litigations
initiated in the previous year.
(xiii) In Paragraph 30, it is contended that the
selection list 2021 came to be processed after the process
of selection list 2020 came to an end.
(xiv) In Paragraph 32, it is contended that it is the
exclusive prerogative of the State to short list the names
of suitable and eligible officers.
(xv) In Paragraph 33, it is contended that 1997
regulations is enacted in lieu of powers vested under 8(2)
of the Recruitment Rules, 1954. That the Recruitment
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Rules, 1954 is enacted in lieu of the power vested under
the All India Services Act, 1951. It is further submitted
that as per Regulation 5 of the 1997 Regulations, the
UPSC is the competent authority to select the final
candidates.
(xvi) In Paragraph 34, it is contended that Regulation
4 does not prescribe any specific mechanism for the
purpose of short listing. Hence, the present methodology
is adopted to provide a level playing field to all the eligible
candidates.
(xvii) In Paragraph 35, it is contended that the
impugned order of the State does not in any way interfere
with the further process of selection by the Committee of
the UPSC under Rule 5 of 1997 Regulations which, it is
stated provides for method of selection by a process of
interview and Assessment of Performance Appraisal Report
in short Annual Confidential Report maintained by the
State Government. Annexures R1 to R5 are inter
departmental communications between the State and the
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Government of India, Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel and
Training, UPSC. The communication pertains to vacancy
arising in the relevant years.
Relevant Provisions are extracted below for the sake
of convenience and brevity.
I. Article 312 of the Constitution of India:
"312. All-India Services. - (1) Notwithstanding
anything in [Chapter VI of Part VI or Part XI], if the Council
of States has declared by resolution supported by not less
than two-thirds of the members present and voting that it is
necessary or expedient in the national interest so to do,
Parliament may by law provide for the creation of one or
more all-India services [(including an all-India judicial
service)] common to the Union and the States, and, subject
to the other provisions of this Chapter, regulate the
recruitment, and the conditions of service of persons
appointed, to any such service.
(2) The services known at the commencement of
this Constitution as the Indian Administrative Service and
the Indian Police Service shall be deemed to be services
created by Parliament under this article.
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(3) The all-India judicial service referred to in
clause (1) shall not include any post inferior to that of a
district judge as defined in article 236.]
[(4) The law providing for the creation of the all-
India judicial service aforesaid may contain such provisions
for the amendment of Chapter VI of Part VI as may be
necessary for giving effect to the provisions of that law and
no such law shall be deemed to be an amendment of this
Constitution for the purposes of article 368.]"
II. Clause (1) & (3) of Article 320 of the
Constitution of India & sub-clause (a) (b),
proviso to Clause (3):
"320. Functions of Public Service Commissions.-
(1) It shall be the duty of the Union and the State Public
Service Commissions to conduct examinations for
appointments to the services of the Union and the services
of the State respectively.
(2) xxx
(3) The Union Public Service Commission or the State
Public Service Commission, as the case may be, shall be
consulted-
(a) on all matters relating to methods of
recruitment to civil services and for civil posts;
(b) on the principles to be followed in making
appointments to civil services and posts and in
making promotions and transfers from one
service to another and on the suitability of
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candidates for such appointments, promotions
or transfers;
Provided that the President as respects the all-India
services and also as respects other services and posts in
connection with the affairs of the Union, and the Governor
[***], as respects other services and posts in connection
with the affairs of a State, may make regulations specifying
the matters in which either generally, or in any particular
class of case or in any particular circumstances, it shall not
be necessary for a Public Service Commission to be
consulted."
III. Entry 70 of List I-Union List of Seventh
Schedule of the Constitution:-
"70. Union Public Services; All-India Services; Union
Public Service Commission."
IV. Section 3 and sub-section (1A) of the All India
Services Act, 1951.
"3. Regulation of recruitment and conditions
of service.-(1) The Central Government may, after
consultation with the Governments of the States concerned,
[including the State of Jammu and Kashmir [and by
notification in the Official Gazette]] make rules for the
regulation of recruitment, and the conditions of service of
persons appointed to an All-India Service.
[(1A) The power to make rules conferred by this
section shall include the power to give retrospective effect
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from a date not earlier than the date of commencement of
this Act, to the rules or any of them but no retrospective
effect shall be given to any rule so as to prejudicially affect
the interests of any person to whom such rule may be
applicable.]"
V. The Indian Administrative Service
(Recruitment) Rules, 1954:
Rule - 2(a):
"2. Definitions- In these rules, unless the context
otherwise requires,-
(a) "Commission" means the Union Public
Service Commission;"
Rule 4(1):
"4. Method of recruitment of the Service:- (1)
Recruitment to the Service after the commencement of
these rules, shall be by the following methods, namely:-
(a) By a competitive examination;
(aa) Omitted.
(b) By promotion of a [substantive] member of a State Civil
Service;
[(c) by selection, in special cases from among persons, who
hold in a substantive capacity gazetted posts in connection
with the affairs of a State and who are not members of a State
Civil Service.]"
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Clause (a) of sub-rule (2) of Rule 4:
"4(2) Subject to the provisions of these rules,
(a) the method or methods of recruitment to be
adopted for the purpose of filling up any
particular vacancy or vacancies as may be
required to be filled during any particular
period of recruitment, shall be determined by
the Central Government in consultation with
the Commission and the State Government
concerned;"
Sub-rule (3) of Rule 4,
"4(3) Notwithstanding anything contained in sub-
rule (1), if in the opinion of the Central
Government the exigencies of the service so
require, the Central Government may, after
consultation with the State Government and
the Commission, adopt such methods of
recruitment to the Service other than those
specified in the said sub-rule, as it may by
regulations made in this behalf prescribe."
Rule 7, 7(1) & 7(2):
"7. Recruitment by competitive examination.
7(1) A competitive examination for recruitment to
the Service shall be held at such intervals as
the Central Government may, in consultation
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with the Commission, from time to time,
determine.
7(2) The examination shall be conducted by the
Commission in accordance with such
regulations as the Central Government may
from time to time make in consultation with
the Commission and State Governments."
Sub-rule (2) of Rule 8:
"8. Recruitment by promotion or selection for
appointment to State and Joint Cadre:-
(1) xxxxx
8(2) The Central Government may, in special
circumstances and on the recommendation of
the State Government concerned and in
consultation with the Commission and in
accordance with such regulations as the
Central Government may, after consultation
with the State Government and the
Commission, from time to time, make, recruit
to the Service any person of outstanding
ability and merit serving in connection with the
affairs of the State who is not a member of the
State Civil Service of that State [but who holds
a gazetted post in a substantive capacity]."
(emphasis supplied)
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VI. Sub-rules (4) and (5) of Rule 5 of the Indian
Administrative Service (Appointment by
Promotion) Regulations, 1955.
"5(4) The Selection Committee shall classify the
eligible officers as 'Outstanding', 'Very Good', 'Good' or
'Unfit', as the case may be, on an overall relative
assessment of their Service records.
5(5) The list shall be prepared by including the
required number of names, first from amongst the officers
finally classified as 'Outstanding' then from amongst those
similarly classified as 'Very Good' and thereafter from
amongst those similarly classified as 'Good' and the order
of names inter-se within each category shall be in the order
of their seniority in the State Civil Service."
VII. Indian Administrative Service (Appointment by
Selection) Regulations, 1997.
Regulations 2(a),(b),(c) & (d), 4, 5 and 6:
"2. Definitions :-
(i) In these regulations unless the context otherwise
requires:
a. "Committee" means the Committee as constituted
under regulation 3 of the Indian Administrative Service
(Appointment by Promotion) Regulations 1955;
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b. "Promotion Regulations" means the Indian
Administrative Service (Appointment by Promotion)
Regulations 1955;
c. "Recruitment Rules" means the Indian Administrative
Service (Recruitment) Rules 1954; and
d. Words and expressions used herein and not defined but
defined in the Indian Administrative Service (Recruitment)
Rules 1954 and Indian Administrative Service (Appointment
by Promotion) Regulations 1955 shall have the meanings
respectively assigned to them in those Rules and
Regulations.
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
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State Civil Service and propose the person for
consideration of the Committee. The number of
persons proposed for consideration of the Committee
shall not exceed five times the number of vacancies
proposed to be filled during the year:
Provided that the State Government shall not
consider the case of a person who has attained the age of
56 years on the first day of January of the year in which the
decision is taken to propose the names for the
consideration of the Committee.
Provided also that the State Government shall not
consider the case of a person who, having been included in
an earlier Select List, has not been appointed by the Central
Government in accordance with the provisions of regulation
9 of these regulations.
5. Preparation of a list of suitable officers by the
Committee:-
The Committee shall meet every year to consider the
proposal of the State Government made under regulation 4
and recommend the names of the persons, not exceeding
the number of vacancies to be filled under regulation 3, for
appointment to the service. The suitability of a person for
appointment to the service shall be determined by scrutiny
of service records and personal interview:-
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Provided that no meeting of the Committee shall be held
and no list for the year in question shall be prepared, when
a. there are no substantive vacancies as on the first day of
January of the year in the posts available for recruitment of
persons under sub-rule (2) to rule 8 read with proviso to
sub-rule (1) to rule 9 of the recruitment rules; or
b. the Central Government in consultation with the State
Government decides that no recruitment shall be made
during the year to the substantive vacancies as on the first
day of January of the year in the posts available for
recruitment under sub-rule (2) to rule 8 read with proviso
to sub-rule (1) to rule 9 of the recruitment rules; or
c. the Commission, either on its own or on a proposal made
by the Central Government or the State Government,
considers that it is not practicable to hold a meeting of the
Committee during the year, in the facts and circumstances
of each case.
Explanation: In case of Joint Cadres, a separate Select List
shall be prepared in respect of each constituent having a
State Civil Service.
6. Consultation with the Commission :-
1. The recommendations of the Committee made under
regulation 5 shall be placed before the State Government
concerned which shall forward the same to the Commission
for approval along with
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i. the confidential records of the officer concerned; and
ii. the observations, if any, of the State Government and
the recommendations of the Committee.
2. The State Government shall also forward the
recommendations of the Committee and its observations, if
any, to the Central Government. The Central Government
shall forward their observations, if any, on the
recommendations of the Committee, to the Commission."
VIII. THE [KARNATAKA] PUBLIC SERVICE
COMMISSION (CONDUCT OF BUSINESS AND
ADDITIONAL FUNCTIONS) ACT, 1959.
Sub-section (1) & (2) of Section 16:
"CHAPTER III
ADDITIONAL FUNCTIONS
16. Conduct of Service Examinations.- [(1)] Such
examinations which persons serving in connection with the
affairs of the State are required to pass under the
conditions of recruitment or service applicable to them and
which may be notified by Government under this section,
and such other examinations as may be notified by
Government from time to time shall, with effect from such
date as the Government may appoint, be conducted by the
Commission in accordance with such rules as may be
prescribed.
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[(2)] Where persons in the services of any local
authority or other body corporate constituted by law, are
required to pass under the conditions of recruitment or
service applicable to them any of the service examinations
notified by the Government under sub-section (1), the
Government may, in consultation with the Commission by
general order declare that the said persons shall be eligible
to appear for the said service examinations and thereupon
the said persons may appear for the said service
examinations, subject to such conditions as may be
prescribed.
Explanation.-For purposes of this sub-section, the
expression 'local authority' shall have the meaning assigned
to it in sub-section (3) of section 17.]"
IX. The Karnataka Civil Services (Performance
Reports) Rules, 2000:
Sub-rules (1), (2) & (3) of Rule 3 and Sub-rule (5) of Rule
4.
"3. Maintenance and custody of Performance
Report file.-(1) A Performance Report file shall be
maintained in respect of every Government servant.
(2) The Performance Report file shall contain the
following documents, namely.-
(a) Confidential Reports and Performance Reports of
the Government servant written prior to the
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commencement of these rules and the Performance
Reports of the Government Servant [recorded
electronically in respect of Group 'A' officers and
physically [or electronically in respect of such
category of Group B and C officials as specified by the
Government] under these rules];
(b) Records of letter of appreciation, award, reward
or medals, if any, awarded to the Government
servant;
Explanation.- For the purpose of this clause "Letter of
Appreciation, Award, Reward or Medal" means that which is
issued.-
(i) by the Government or by a Secretary to
Government or a Head of Department, as the
case may be, to a Government servant;
(ii) by a Board or a Corporation or a Company or a
Committee or a Local authority or any Non-
Governmental Organisation and which in the
opinion of the Appointing Authority, deserves
to be placed in the Performance Report file;
(c) Records of any recommendation or order
expressing displeasure against the Government
servant;
(d) Copy of the order passed under Rule 10;
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(e) Copy of orders imposing any of the penalties in
a disciplinary proceedings under the Karnataka
Civil Services (Classification, Control and
Appeal) Rules, 1957 on the Government
servant;
(f) Record of any books, articles and other
publications brought out by the Government
servant or for the publication of which he may
be responsible, which has relevance to the civil
services, administration or public service.
(3) The Appointing Authority or such other authority
as may be specified by the Appointing Authority in this
behalf shall be the custodian of the Performance Report
file."
"4. Initiation and recording of Performance
Report.- (1) xxx
(2) xxx
(3) xxx
(4) xxx
(5) In respect of Government servants whose
performance reports are required to be recorded
electronically under sub-rule (1), the process of
recording such entries shall be initiated and concluded
in accordance with provisions specified in the table."
X. Union Public Service Commission
All India Services Branch
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Selection procedure guidelines issued by the UPSC.
CONTENTIONS ON BEHALF OF THE PETITIONERS:
8. The learned senior counsel would contend that
the process of selection of candidates from the Non-State
Civil Services and appointment to the IAS, is a field that is
completely occupied by Parliamentary and Central
Legislation and it is not open for the State to exercise its
executive power and legislate in any manner whatsoever.
That the impugned orders in exercise of the executive
power is in the teeth of the Indian Administrative Services
Act, legislated under Article 312 & Entry 70 of List I, of
the Constitution of India. In that view, he would contend
that the State has no authority to subscribe any new
criteria for the purpose of assessing the merit and ability
of the candidates in contention. That selection and
appointment of candidates to the IAS being an occupied
field the State is precluded from exercising its executive
power in the said field and the State is required to act
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within the four corners of the statutes under which it has
been delegated certain functions. Elaborating further, he
would state that Article 312 makes it clear that
notwithstanding anything in Chapter VI of Part 6, the
Parliament alone is competent to regulate the recruitment
to IAS. That the All India Services Act of 1951 and the
rules framed there under, completely encompass the
appointment to IAS, either by way of competitive
examination, promotion or by selection of officers in the
Non-SCS. That competitive examinations, as a method of
recruitment is prescribed only to fresh recruits and not to
those who have already been recruited and discharging
duties in the State service, and by the present impugned
executive order an attempt is being made to regulate the
same and the same is impermissible.
9. The learned senior counsel taking the Court
through the provisions of IAS (Appointment by Selection)
1997, would contend, that the provisions cast a limited
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function on the State Government that is of sending
proposals for consideration by the State Selection
Committee (SSC). He would take the Court through
Regulation 4 and would contend that the State is required
to propose such of those candidates who possess
outstanding merit and ability, holds a gazetted post in a
substantive capacity, has completed not less than 8 years
of continuous service and in a post which has been
declared equivalent to the post of Deputy Collector in the
SCS and the proposal should be forwarded to the
Committee and that the number of persons proposed shall
not exceed 5 times the number of vacancies proposed to
be filled during the year. That State Government shall not
consider the case of a person who has attained 56 years.
That the State Government shall not consider the case of a
person who has been included in the select list but has not
been appointed by the Central Government.
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10. The learned senior counsel would take the
Court through Regulation 5 of the 1997 regulations
pertaining to preparation of list of suitable officers by the
Committee and Regulation 6, which pertains to
consultation with the Commission.
11. The learned senior counsel would contend that
the Regulation 5 and 6 are a complete answer to the
theory propounded by the State and clearly demonstrates
the role envisaged by the regulations for the State. In
that view, he would contend that no power or discretion is
vested in the State to prescribe any new qualification,
eligibility or a criteria that which is not already provided
under the Rules.
12. He would take the Court through the definition
of Committee under the 1997 regulations and would point
out that the Committee is none other than the Committee
constituted under Regulation 3 of the IAS (Appointment by
Promotion) Regulation, 1955.
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13. The learned senior counsel would contend that
the two other methods of recruitment are exclusively
designed for in-service candidates and is on the basis of
proven outstanding merit and ability and not a newly
created phenomenon of competitive or qualifying
examination. Elaborating further, he would contend that
on the day the selection process commences the
candidates must already have acquired the credentials as
an outstanding officer and neither the recruitment rules
nor the regulations envisage anything to the contrary and
hence, he would submit that the prescribed method under
the impugned Government orders is a fraud on the power
of the process as it has no reference with the past service
of the officer and the officers cannot be treated as fresh
recruits.
The Petitioners have placed reliance on the following
rulings:-
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SL PARTICULARS PAGE NO
NO.
1. B.Amrutha Lakshmi vs. the of Andhra Pradesh 1-11
and others, Reported in (2013) 16 SCC 440
(Para 19 & 20)
2. P. Mahendran and others vs. State of Karnataka 12-22
and others in (1990) 1 SCC 411 (Para 5)
3. State of Rajasthan vs. Mohinuddin Jamal Alvi 23-27
and Others, Reported in (2016) 12 SCC 608
(Para 4 & 5)
4. P.M Bayas vs. Union of India and others, 28-35
Reported in (1993) 3 SCC 319 (Para 9 & 11)
5. R.S. Dass vs. Union of India and others, 36-65
Reported in 1986 (Supp) SCC 617 (Para 29 &
30)
6. Noor Mohammed vs. Khurram Pasha, Reported 66-73
in (2022) 9 SCC 32 (Para 14, 15 & 16)
7. State of Orissa & Ors vs. Prasanna Kumar 74-80
Sahoo, Reported in (2007) 15 SCC 129 (Para
12)
8. Y.V Rangaiah and Others vs. J. Sreenivasa Rao 81-86
and Others, Reported in (1983) 3 SCC 284
(Para 19)
9. Guman Singh vs. State of Rajasthan and 87-113
Others, reported in 1971 (2) SCC 452 (Para 35)
10. K.K Parmar & Others vs. H.C of Gujrat Through 114-127
Registrar and others, Reported in (2006) 5 SCC
789 (Para 27 & 28)
11. Shri Parvez Qadir vs. Union of India, Reported 128-141
in (1975) 4 SCC 318 (Para 17-20)
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14. The learned Senior counsel would contend that
it is not open for the State Government to stipulate any
new criterion, that too, after determination of the
vacancies. That the credentials required for selections as
per the Act and Regulations are the pre-existing
credentials and not the credentials that are to be acquired
afresh. That the words 'outstanding merit' is a clear
pointer in this regard. That the outstanding merit and
ability is over a fixed period and not at the discretion of
the sponsoring authority i.e., the State Government. That
the Act and Regulations are a self contained Code and do
not leave any scope for the State to exercise any option.
The eligibility criterion, the manner in which it is to be
assessed, the disqualification etc., are all provided by the
Act, Regulations and the Recruitment Rules.
15. It is further contended that the respondent
State, itself being a delegate, it has no authority to sub-
delegate to the KPSC.
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16. It is contended that the proposed exercise
assigned to the KPSC is also in the teeth of Article 320 of
the Constitution of India. That the KPSC is entitled to
conduct examination to the posts in the services of the
State. That the IAS service not being a service under the
State, the KPSC has no authority in law to hold the exam.
That the role and responsibilities of the State Public
Service Commissions are clearly demarcated in the Article
320.
17. The learned Senior counsel would brush aside
the contentions of the learned AAG that the Karnataka
Public Service Commission (Conduct of Business and
Additional Functions) Act, 1959, saves and invests
authority in the KPSC to conduct the role assigned by the
State under the executive orders. He would invite the
attention of the Court to Article 321 and would submit that
the same is a complete answer. He would also take the
Court through Section 16 of Chapter III of the KPSC Act,
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1959 relating to additional functions invested in the
commission. Elaborating further, he would contend that
any such extension of function can only be by an Act of
the State legislature and not by an executive order.
Secondly, Article 321 does not empower the State to
encroach upon the field occupied by the Act, Rules and
Regulations framed by the Parliament and the Centre and
that the power to extend functions can only be in respect
of the services of the State, Local Authority or other Body
Corporate and the IAS post is neither a service under the
State or Local Authority or a Body Corporate and is only
governed by UPSC.
18. With regard to merit, the learned Senior
counsel would contend that the concept of merit has been
gone into and defined by various judgments. He would
contend that marks alone do not determine the merit of a
person and that merit is an enumeration of a person's
various qualities and it reflects the attributes of a person.
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19. It is contended that the KPSC cannot be
consulted in any manner in the matter of recruitment for
IAS. It is the UPSC which has been given a major role in
appointment of candidates to IAS by selection. That Article
320 which lays down the function of a State Public Service
Commission has conferred the State Public Service
Commission to conduct examination for appointment to
services of the State. Since IAS is not a service under the
State, such an examination cannot be directed to be
conducted by the KPSC. Article 321 which provides power
to extend powers to Public Service Commission also does
not empower to issue the impugned Government Order
because; That any such extension of a function can only
be made by a Legislature of the State and not by an
executive order; That Article 321 does not empower the
State to encroach upon the field occupied by the Act, the
Rules and the Regulations; and that, the power to extend
functions can only be in respect of services under the
State, local authority or other body corporate and not IAS.
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20. In support the learned Senior Counsel would
also place reliance on the case of Taylor vs. Taylor, to
contend that; when the Statute provides for a thing to be
done in a particular manner, then it must be done in that
manner alone. All other modes of doing that thing must
be deemed to have been prohibited.
a. State of Rejasthan V. Mohinuddin Jald Alvi
reported in (2016) 12 SCC 608 at paras 4 and
5.
b. Noor Mohammed v. Khurram Pasha, reported in
(2022) 9 SCC 23 at paras 14-17.
c. Amrutha Lakshmi V. State of Andhra Pradesh
reported in (2013) 16 SCC 440 at para 20.
21. With regard to 'Merit' the learned Senior
Counsel would elaborate further and contend that the
concept of merit is well known. Several decisions have
defined merit, to laydown it is not to be judged by marks
alone and that depends upon various qualities. In
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Gurman Singh - vs- State of Rajasthan reported in
1971 (2) SCC 452 the Hon'ble Supreme Court has held
as follows:
"Merit is a sum total of various qualities
and attributes of an employee such as his
academic qualifications, his distinction in the
university, his character, his integrity, devotion
to work and the manner in which he discharges
his official duties. Allied to this may be various
other matters, or factors, such as punctuality in
work, the quality and out-turn of work done by
him and the manner of his dealings with his
superiors and subordinate officers and the
general public, his rank in the service and
annual confidential report. All these and other
factors may have to be taken into account in
assessing the merit".
In K.K. Parmar - vs - High Court of Gujarat
reported in (2006) 5 SCC 789, the Hon'ble Supreme
Court has held (para 27);
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" 'Merit' of a candidate is not his academic
qualification but it is sum or total of various
qualities it reflects the attribute of an
employee. It may involve character, integrity
and devotion to the duty of the employee and
the manner in which an employee discharges
his final duties. It would also include suitability
and seniority of the candidate. "
In Pradeep Jan - vs - Union of India reported in
(1984) 3 SCC 654, the Hon'ble Supre Court has held -
" 'Merit' cannot be measured in terms of
marks alone. The heart is as such a factor as
the head in assessing the social value of a
member of the medical profession".
The very aspect which should be taken note of is that
written statement is not a substitute for service records.
Merit and ability contribute to the efficiency of
administration. As early as in 1919 Sri Lestie Miller
Committee determined efficiency thus:
"...Efficiency, however, is not be measured
solely or even mainly by academic qualifications
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and it will not be denied that there are
important branches of the administration in
which other qualities such a sympathy, honestly
of purpose, energy and common sense go as
far to make an efficient officer as literary
superiority. We do not wish to suggest that the
Brahmin community is deficient in these
qualities, but it cannot and does not claim a
greater share of them than other communities,
while its superiority at present in the capacity
to obtain academic distinctions can hardly be
questioned."
22. In the light of the above submissions he would
contend that a written examination can never be a
substitute for assessing the merit of the service rendered.
Contention on behalf of the R-3 and R-4 State:
23. Per contra, the learned AAG would contend that
by the impugned proceedings the State has attempted to
eliminate elements of subjectivity which otherwise was
pervading the selection process in the earlier years. That
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the impugned proceedings renders the selection process
objective and the element of subjectivity is totally
eliminated. He would contend that the impugned
proceedings are well within the State's competence to
legislate Rules to give effect to Regulation 4 (i) of the
Regulations, 1997 and that the said legal position is no
more res-integra in view of the law laid down by the apex
Court in the case of B. Amrutha Lakshmi vs. State of
Andhra Pradesh2, and would refer to paragraph No.19
and would contend that the Hon'ble Apex Court has clearly
held "It is for the State Government to lay down by rules
as to how the outstanding merit and ability is to be
assessed and over how much period". He would contend
that this is a categorical finding rendered by the Hon'ble
Apex Court investing the State with the competence to
legislate in respect of an occupied field. Though at first
blush the contention is convincing, the succeeding
contents of the paragraph and the contents preceding the
(2013) 16 SCC 440
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sentence clearly indicate otherwise which we will be
elaborating in the course of this order and which clearly
negate the case canvassed by the State and in fact is
against the right of elimination claimed by the State.
24. The learned AAG would submit that different
States have different methods to make this determination
and that is an undeniable fact. That the States of Gujrath
and Haryana have an examination to arrive at this
conclusion. That the endeavor of the State is to bring in
transparency and hence, the State is competent to
determine the best possible mechanism to select the most
competent candidates and forward the same to the
Committee. It is contended that once that the state is held
to be competent then, it is a matter of Policy and it is not
open for the petitioners to question the same. He would
harp on the Policy requirement of the Departments to
sponsor names and the express role assigned to the
Minister and that this pre-condition led to allegations of
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favoritism etc. This contention need not hold us. The said
pre-condition is clearly not a criterion stipulated either
under the Act, Rules or the Regulation. If it was a practice
that was followed, the same being without the sanction of
law, has no bearing or relevance for the determination of
the issue on hand.
25. He would submit that the existing practice of
forwarding only four names limited the choice and
prevented the best available talent from making the cut.
26. He would submit that the impugned
proceedings has received response from 613 candidates.
The sheer numbers is an indicator by itself and no eligible
candidate would depend on the whims of any third person.
27. At this juncture, the Court queried the learned
AAG as to whether all the 613 candidates possessed the
eligibility criterion stipulated under the Act and Regulations
to which the learned AAG had submitted to the Court that
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the information would be furnished to the Court and on
the next date of hearing, a memo dated 13.12.2022 came
to be filed in to the Court enclosing therewith a copy of the
letter addressed by an Under Secretary to Government,
DPAR addressed to the Government Advocate, which reads
as under:-
"Sub:- W.P.No. 19913/2022 (S-CAT) Dr.
Ramegowda and others V/s. State of
Karnataka and others.
*****
With reference to the above subject, as discussed
with the advocate, the clarification regarding to the
information sought by the Hon'ble Court on 12.12.2022
is as follows:
The State screening committee headed by Chief
Secretary will take into consideration both the score
obtained in the KPSC examination as well as the standing
of the officer with respect to the Performance Appraisal
Reports. On joint consideration of these parameters, the
State Government will recommend names of candidates
to UPSC as per guidelines." [emphasis by this Court]
28. We do not find any answer to the query
addressed by us. In fact, it clearly exposes an
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intention/effort, which clearly is prohibited by the Act,
Rules and Regulation, more particularly, Regulation 5. It is
apparent that the examination is sought to be introduced
as a mechanism of selection by the State Selection
Committee, which is clearly an intrusion into an occupied
field. The manner and method of selection, the eligibility
and criterion to be looked into etc. are all clearly
mandated under the Regulation and this is clearly an
attempt to tweak the selection criterion or in other words,
the manner and method of selection to be adopted by the
State Selection Committee. It is contended that after the
examination is conducted, the State Screening Committee
would examine the ACRs along with the CR Dossier and
the additional factor would be the marks obtained in the
examination. If this position is accepted, it would clearly
amount to the State Selection Committee considering a
criterion, which is not mandated under the Regulations.
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29. The learned AAG replying to the contentions of
the petitioners would contend Regulation 5 of the
Regulations, 1997 deals only with the aspect of preparing
a list of suitable officers and does not involve any selection
and it does not bar the State from adopting any
mechanism to deal with the issue of outstanding merit and
ability and the State is free to make this determination.
That the examination would enable the State to choose
the best amongst the candidates having outstanding merit
and ability. That the Regulations only permit an
assessment of service records and interview. That
Regulation 6 of the Regulations, 1997 provides for a
similar mechanism for the Committee to follow and that
neither Regulation 5 nor Regulation 6 circumscribe the
power of the State to adopt a separate mechanism.
30. That the proposition of law that when law
requires particular thing to be done in a particular manner
applies only to the stages involved in Regulations 5 and 6
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and does not apply to the power of the State to adopt and
introduce a new mechanism. In other words, it is
contended that Regulation 4 cannot be controlled by
Regulations 5 and 6 of the Regulations, 1997.
31. Insofar as the contention regarding competence
of the KPSC, it is contended that Article 321 is not a bar
and in fact permits the State Government to extend the
functions of KPSC. That Section 16 of the KPSC Act, 1959
empowers the Government to require the KPSC to conduct
an examination and Section 16 is derived as not limiting
the power to the departmental exams but to all exams
that the State may notify and hence, the impugned
Notification is well within four corners of Article 321 read
with Section 16 of the KPSC Act, 1959. That the integrity
of the entire process cannot be defeated by contending
that the KPSC cannot carryout the examination process.
32. That under the existing system, a pool of 20
candidates alone can be considered and there being 613
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candidates, it would be an herculean task for the
respondent - State. That the impugned order is well
thought of and will serve the larger interest of the State.
Reply by Petitioners:
33. In reply, the learned Senior counsel appearing
on behalf of the petitioners would submit that the power to
frame Rules has been vested by the Parliament in the
Union Government and no power is ceded to the States
under the 1951 Act. That the Union Government in
exercise of the powers vested in it, has framed the
Recruitment Rules of 1954 and in furtherance of the Rules,
the Regulations of 1955 have been promulgated and Rule
4 of the 1954 Rules stipulates three exclusive modes of
recruitment only. That the authority to exercise all the
three modes of recruitment are vested in the Central
Government. That the three modes are not inter-
changeable and competitive examination is prescribed only
for direct recruitment. That Rule 4 specifically excludes the
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method of written examination from the other two modes
of appointment. That being the intent of the Rule, the
question of the State attempting to tweak the same by an
executive order is clearly beyond its competence and the
same militates against the mandate of the 1954 Rules,
which prescribes method of Recruitment Rules. That the
present exercise is not in exercise of the powers conferred
on the State, which is limited to forwarding proposals.
That the very argument that they can chose candidates is
ground enough to strike down the impugned Government
Order.
34. The learned Senior counsel would contend that
the observation of the Hon'ble Apex Court in Amrutha
Lakshmi's case is sought to be quoted out of context and
would place reliance on the question framed in paragraph
No.18 and would rely on the observations in paragraph
No.19 itself to contend that the very judgment rules out
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any mechanism by the State to eliminate the candidates
and there is substance in the contention.
CONSIDERATION OF THE CONTENTIONS:-
35. The primary contention advanced on behalf of
the petitioners is that the impugned Order and Notification
is challenged on the ground of want of competence to
legislate in respect of an entry in the Union List. It has
been elaborately argued that the field relating to
appointment of persons to the post of IAS, either by way
of competitive exams, promotion or selection is a field
occupied by law made by Parliament. We have examined
Article 312, more particularly, Clause (2) of Article 312
and the language employed leaves no scope for any
ambiguity. It declares, that the services known as the
Indian Administrative Service, to be a service, deemed to
have been created by the Parliament under Article 312.
The declaration contained in Article 312, prohibits any
interpretational exercise with the deeming provision, by
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which the pre-constitutional service is said to be or in
other words, deemed to be created by the Parliament.
Clause (1) throws more light on the intention of the
Parliament. Clause (1) of Article 312 provides for creation
of one or more All India Services common to the Union
and States and in respect of such a service also, the law
making power is vested in the Parliament.
36. The next provision that we proceed to examine
is Entry 70 in List I (Union List of the Seventh Schedule),
which places the Union Public Services, All India Services,
Union Service Commission in List I, which is apparently in
the exclusive domain of the Union Government.
37. Nextly, we examine Section 3 of the All India
Services Act, 1951, which commences with the heading
'Regulation of recruitment and conditions of service'. The
provision vests the rule making power for regulating
recruitment and conditions of services of the All India
Services, in the Central Government. It only mandates a
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consultation with the States and no rule making authority
is conferred on the State. This position stands further
amplified by Sub-Section (1A) of Section 3 of the Act,
1951. A plain reading of Section 3 leaves no doubt that
the power to regulate the recruitment to IAS has been
arrogated by the Union Government to itself.
38. We now proceed to traverse the provisions of
the Indian Administrative Service (Recruitment) Rules,
1954, in particular, Rule 2(a) which defines 'Commission'
to mean the Union Public Service Commission. Rule 4(1)
provides for method of recruitment i.e., by a competitive
examination, by promotion of a substantive member of a
State Civil Service and by selection, in special cases, from
among persons, who hold in a substantive capacity, a
gazetted posts in connection with the affairs of a State and
who are not members of a State Civil Service. Clause (a)
of Sub-Rule 2 of Rule 4 even further amplifies the position.
It mandates that the method or methods of recruitment to
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be adopted for the filling up any particular vacancy or
vacancies shall be determined by the Central Government.
The use of the word 'determined' is not meaningless. The
Parliament in its wisdom has authoritatively legislated the
law, with the use of the words 'shall be determined'. The
provision yet again leaves no scope for any ambiguity or
interpretation as the Parliament has authoritatively
proclaimed the law that it shall be the sole prerogative of
the Central Government to determine the method or
methods of recruitment. In this connection the letter of
the State Government, clarifying to the Court, is a dead
give-away. It is apparent that the State intends to
regulate the recruitment by imposing upon the State
Selection Committee to take into consideration, the marks
obtained in the alleged competitive examinations. The
consideration by the State Selection Committee is under
Regulation 5 and the written examination is not one of the
methods stipulated under the Regulation. The State is
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attempting to achieve, "indirectly" what it cannot achieve
"directly".
39. Nextly, and even more crucial is Sub-Rule 3 of
Rule 4. A plain reading of the Rule leaves no doubt in the
mind of this Court that any variation to the method or
methods of recruitment is yet again within the sole
preserve of the Central Government. The authority, to
adopt such other method or methods of recruitment, other
than those stipulated in Sub-Rule 1 of Rule 4, is yet again
conferred on the Central Government only. The Sub-Rule
commences with a non obstinate clause and the discretion
of varying or adopting another method is again the
preserve of the Central Government. The Rule further
mandates that such exercise is permissible only by way of
Regulations made in this behalf and the method or
methods shall be prescribed under the Regulations.
40. Rule 7 also provides for the role of respondent
No.5 - UPSC. Sub-Rule 2 of Rule 7 lays down that the
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examination can be conducted by the Commission only in
accordance with the Regulations. Thus, even the conduct
of the examination, to be conducted by UPSC, is also
regulated and it ought to be only in accordance with and
as stipulated by the Regulations.
41. Sub Rule (2) of Rule 8 further amplifies the
sphere of influence of the Central Government in 're'
matters relating to appointment to the IAS, be it by way of
competitive examination or promotion or selection. The
provision limits the role of the State to recommending
names of any person of outstanding ability and merit and
serving in connection with the affairs of the State but
holding a gazetted post in a substantive capacity.
42. Nextly we proceed to examine sub rule (4) and
sub rule (5) of Rule 5 of the IAS (Appointment by
Promotion) Regulations, 1955. The sub rule (4) mandates
as to how grouping of candidates is required to be done.
It mandates that the selection committee shall classify
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eligible officers as "outstanding", "very good", "good" or
"unfit" and such classification is to be based on an overall
relative assessment of their service records. Sub rule (5)
mandates that the list shall be prepared by including the
required number of names. First from amongst the
officers classified as "outstanding" then from amongst
those similarly classified as "very good" and thereafter
from amongst those similarly classified as "good" and it
further mandates that all things remaining equal the order
of interse seniority shall be the order of their order of
seniority in the State Civil Service.
43. From a reading of the above, it is apparent that
the selection committee, has to create groupings of
officers by classifying them on the basis of the entry in the
ACR i.e., outstanding, very good, good and thereafter it
also provides for determination of their seniority, on the
basis of the seniority enjoyed by them in the State
Service. Thus, from the above it is clearly apparent that
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the manner and method of selection is well defined
without there being any loose ends nor left to chance.
What is apparent is that the regulations clearly mandates
that all things being equal, then the selection committee is
required to sponsor the name in the order of seniority that
they enjoy in the State Service. This clearly belies the
contention advanced by the learned AAG that no
mechanism for appreciating the outstanding merit and
ability and how it is to be operated is clearly set out in the
above provisions.
44. We now proceed to examine the provisions of
Sections 2 (a)(b)(c) and (d), 4, 5 and 6 of the IAS
(Appointment by selection) Regulations, 1997. The
provisions has been extracted supra for the sake of
reference. Regulation 2(1)(a) defines a committee to
mean the committee as constituted under Regulation 3 of
the IAS (Appointment by Promotion) Regulations, 1955
and which is none other than the State Selection
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Committee. Regulation 3 in turn refers to the composition
of committee as shown in column 3 of the schedule to the
Regulations. It shall consist of the Chief Secretary, the
senior most office of the cadre other than the Chief
Secretary, head of general administration
department/personnel/revenue, not below the rank of
Secretary to the Government and lastly two nominees of
the Government of India not below the rank of Joint
Secretary. In other words the State Selection Committee
comprises wholly of officers hailing from the IAS itself.
Regulation 2(B) defines promotion regulations to be
the IAS (Appointment by Promotion) Regulations, 1955.
Regulation 2(C) defines recruitment rules to mean the IAS
(Recruitment) Rules, 1954. Regulation 2(D) clarifies that
the words and expressions used herein and not defined
but defined under the recruitment Rules, 1954 or
Regulations of 1955, shall have the meanings respectively
assigned to them in those rules and regulations. In other
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words, the provisions of the 1954 Rules and 1955
Regulations pertaining to appointment by promotion are
made applicable to the Selection Regulations of 1997. If
that be so, then the Regulations 5 (4) & (5) are clearly
attracted the process under the 1997 Regulation.
45. Nextly we proceed to examine Regulation 4,
which in a way of sorts, is sought to be projected as the
panacea for the alleged ill discovered by the State
Government and ailing the selection process. Regulation 4
starts with the heading "State Government to send
proposals for consideration of the Committee". From a
reading of the above, the role assigned by the heading to
the State Government is one of "sending proposals".
Regulation 4(1) stipulates that the State Government shall
consider the case of a person not belonging to the State
Civil Services but serving in connection with the affairs of
the State. The words employed in the provision clearly
cuts at the very root of the case canvassed by the learned
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AAG, (1) that there is no prohibition to devise a new
mechanism by way of a competitive examination, (2) that
the statute does not mandate as to how the merit and
ability of the candidate is to be assessed. Both these
contentions stand nullified by the very provision itself.
The provision mandates that the State Government "shall
consider the case" of a person. The only inference that
can be drawn by the language employed is that the
consideration is of a merit that is already acquired by the
candidate and not to be acquired. The words are used in
the past tense. The word "case" must be understood to
mean the merit and ability already demonstrated by the
candidate and that apart he is to be of outstanding merit
and ability and hold a gazetted post and has completed 8
years of continuous service in the post, which has been
declared equivalent to the post of a Deputy Collector in the
State Civil Service and propose the person for
consideration by the committee. Thus, the provision is
self contained. It merely authorises the State to send
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proposals and nothing more. The word "case" implies the
merits and demerits as possessed by a candidate on the
relevant date and what are those merits and demerits are
detailed in clauses (i), (ii), (iii) and the two provisos to the
Regulations.
46. In the light of the above, the contention that
the State Government is entitled to do what is not
prohibited cuts no ice with us. As Regulation 4, not only
mandates what the State Government is required to do
but also stipulates how the State Government is required
to do the same. It also stipulates the cut off point by the
use of the word "case" which in common parlance refers to
the situation affecting or relating to a particular person or
thing, which in the case on hand is relatable to the
merit/merits possessed by the candidate as on the date of
consideration of his candidature for sending the proposal.
It is also interesting to note the distinction in the use of
the word "consideration" both in the heading and
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Regulation I. In the heading the State is called upon to
send proposals for consideration by the Committee. The
word "consider" in 4(1) is qualified by the words "not
belonging to State Civil Services" and the word has to be
understood in that context. The use of the word
"consider", in our opinion does not invest the State with
any entitlement to evaluate merits interse parties, but
merely evaluate the merit of the candidates as prescribed
in clauses (i), (ii), (iii) and 4(1) and forward their names
to the committee and the two provisos prohibit the
recommendation of names who fall under the two
categories under the two provisos. The use of the word
"consider" has apparently been misunderstood by the
State as empowering it to evaluate afresh the competence
of the candidates. What are the points that merit
consideration and what are the disqualification are clearly
mandated by the very provision and it is not open for the
State, to state otherwise, as any variation in the criterion
or method and manner of selection is a field that is
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occupied by Sub rule (3) of Rule 4 of the Recruitment
Rules, 1954 and it cannot be gainfully argued that the
State is entitled to introduce another element of
suitability. The contention that seniority alone cannot be a
consideration and a reliance on Amrutha Lakshmi's case
in support of this needs no great unraveling as a simple
reference to Regulation 5(5) of the 1955 Regulations
would suffice to answer the same. As detailed supra,
Regulation 5 (5) follows Regulation 5(4) which sets out as
to how the candidates are required to be grouped i.e.,
"outstanding", "very good" and "good". Regulation 5(5)
states that all things remaining equal after evaluation
under 5(4), then their names shall be placed in the order
of seniority assigned to them in the Civil Services of the
State.
47. In Amrutha Lakshmi's case the Hon'ble Apex
Court has merely said that a candidate cannot be
eliminated merely on the ground of seniority. Probably it
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could be argued that a person who is junior in the order of
seniority but is more meritorious as provided under 5(4)
then such a candidate cannot be over looked by pressing
into service Regulation 5(5). Regulation 5(5) would come
into play only if all things are found to be equal after
examination under Regulation 5(4). By the impugned
order the State under the guise of carrying out an
evaluation in terms of Regulation 4(1) has sought to
introduce an additional element of suitability which is not
provided under Regulation 4(1) and which definitively
cannot be a consideration by the SSC, as attempted by the
State (R3 & R4).
48. We are constrained to look down upon the
impugned order in view of the insignificance of the role
attributed to the State Government under the scheme of
the Act, Rules and Regulations. The State is neither a
party to the selection process nor can it author the
selection process. This view of ours is fortified by
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Regulations 5 and 6. The role assigned to the State
Government under Regulation 4 is very preliminary in
nature as demonstrated by Regulation 5. Regulation 5
casts a mandate on the State Selection Committee which
mandate is again limited to the aspect of preparing a list
of suitable officers. Even the State Selection Committee,
in fact does not select the candidate to be appointed to
IAS but merely prepares a list of suitable candidates and
place it before the State Government in the order of
suitability. Regulation 6 mandates that the
recommendations of the State Selection Committee made
under Regulation 5 shall be placed before the State
Government and which State Government "shall forward"
the same to the Commission, i.e., the UPSC for approval
and the same shall be accompanied by (1) the confidential
records of the officers, (2) observations of the State
Government and recommendations of the committee.
Thus, if the role of the State Government is examined in
the backdrop of the entire gamut of selection process, it is
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apparent that very little or a miniscule role is assigned to
the State. This, in our view is on account of the entire
field being occupied by parliamentary legislation and the
rules and regulations legislated in pursuance of the power
delegated by it.
49. On a cumulative appreciation of the various
provisions and in the light of our consideration of the
same, we have no hesitation in holding that the entire field
relating to appointment to IAS by way of selection is an
occupied field, occupied by central legislation and thereby
we hold that the State is denuded of any competence to
legislate in respect of matters arising out of the occupied
field, much less to regulate the appointment by way of
selection under the 1997 Regulations.
50. We are also not impressed by the bonafides. In
fact our query was whether the candidates who have been
permitted to take the examination are of equal merit and
ability and the answer to it has let the cat out of the bag.
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The instructions placed before this Court clearly
demonstrates that the attempt of the State is to impose
an element of suitability or eligibility and that which is not
prescribed or stipulated under Regulation 4. In other
words, the respondent State has attempted to achieve
indirectly what it cannot achieve directly. The settled
position in law, that if the law requires an act or thing to
be done in a particular manner, then such act or thing
shall be performed in that particular manner or not at all,
squarely applies in the instant case. If the regulation
stipulates evaluation or assessment in a particular manner
then such evaluation has to be carried out in that manner
alone.
51. Now coming to the role of the State Public
Service Commission and the role assigned to it by the
State Government amazes and staggers us. The
recruitment rules, more particularly Rule 7 of The Indian
Administrative Service (Recruitment) Rules, 1954, clearly
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envisages a role only for the UPSC and such role is not
without any rigors. Even the UPSC is permitted to hold
examination for candidates to be recruited by way of
competitive examinations only. But what is interesting to
note is that the Union Public Service Commission is not
given a free hand in the matter of holding examinations
as Rule 7(2) mandates that the examination shall be
conducted only in accordance with the regulations that the
Central Government may make from time to time. When
the Union Commission itself is permitted only a restricted
right, it is inconceivable as to how the KPSC has even
ventured to consent to do the same. The reliance on
Section 16 of Chapter III of the Karnataka Public Service
Commission (Conduct of Business and Additional
Functions) Act, 1959 is a vile attempt and is in vain.
Reading of Section 16 clearly obviates any detailed
discussion. It enables holding of exams for persons
serving in connection with the affairs of the State who are
required to pass examinations under the conditions of the
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recruitment or service applicable to them and such other
examination as may be notified by the Government and
the same to be conducted in accordance with such rules as
may be prescribed. Apparently no such rules are framed
nor can be framed to enable holding of a competitive
examination for selection to the IAS. In our considered
opinion the reliance on the above provisions is highly
misplaced and misconceived.
52. As regards the contention that time for
consideration has lapsed, the said contention should not
hold this Court and does not require any brainstorming in
view of the position settled by a Co-ordinate Bench of this
Court headed by His Lordship Justice A S Bopanna (as he
then) and wherein the Co-ordinate Bench in W.P.
Nos.11077/2018 & 26123/2018 (S-CAT) has held in
paragraphs 18 to 21, which reads as follows:-
"18. In addition, as already noticed, though the
process had commenced by the State Government much
earlier, the same had prolonged to the fag end of the
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year due to the judicial proceeding and the stay operating
in the proceedings. Hence, the maxim "Actus curiae
neminem gravabit" i.e., the act of Court shall prejudice
none, will come into play. In that regard it is necessary to
take note of the decision relied on by the learned
Advocate General, rendered by the Hon'ble Supreme
Court in the case of Rameshwar and others Vs. Jot
Ram and another [(1976) 1 SCC 194] wherein it is
held as hereunder:
"The philosophy of the approach which
commends itself to us is that a litigant who
seeks justice in a perfect legal system gets it
when he asks for it. But because human
institutions of legal justice function slowly, and
in quest of perfection, appeals and reviews at
higher levels are provided for, the end product
comes considerably late. But these higher
Courts pronounce upon the rights of parties as
the facts stood when the first Court was first
approached. The delay of years flows from the
infirmity of the judicial institution and this
protraction of the Court machinery shall
prejudice no one. Actus curiae neminem
gravabit(1). Precedential support invoked by
the appellant's counsel also lets him down
provided we scan the fact situation in each of
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those cases and the legal propositions therein
laid down."
19. In the decision in the case of Atma Ram
Mittal Vs. Ishwarf Singh Punia [(1988)4 SCC
284) relied upon by the learned Advocate General
also, the Hon'ble Supreme Court has held as
hereunder:
"8. It is well-settled that no man should suffer
because of the fault of the Court or delay in the
procedure. Broom has stated the maxim "actus
curiae neminem gravabit" - an act of Court
shall prejudice no, man. Therefore, having
regard to the time normally consumed for
adjudication, the ten years' exemption or
holiday from the application of the Rent Act
would become illusory, if the suit has to be
filed within that time and be disposed of finally.
It is common knowledge that unless a suit is
instituted soon after the date of letting it would
never be disposed of within ten years and even
then within that time it may not be disposed
of. That will make the ten years holidays from
the Rent Act illusory and provide no incentive
to the landlords to build new houses to solve
problem of shortages of houses. The purpose
of legislation would thus be defeated.
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Purposive interpretation in a social amelioration
legislation is an imperative irrespective of
anything else."
20. On the above aspect, the learned Senior
Counsel for the private respondents has relied on yet
another decision of the Hon'ble Supreme Court in the
case of Kalabharathi Advertising Vs. Hemant
Vimalnath Narichania and others [(2010)9
SCC437] wherein it is held as hereunder:
"16. In Ram Krishna Verma & Ors. v. State of
U.P. & Ors., [(1992)2 SCC 620], this Court
examined the issue while placing reliance upon
its earlier judgment in Grindlays Bank Limited
v. Income Tax Officer, Calcutta & Ors., AIR
1980 SC 656 and held that no person can
suffer from the act of the Court and in case an
interim order has been passed and the
petitioner takes advantage thereof, and
ultimately the petition stands dismissed, the
interest of justice requires that any undeserved
or unfair advantage gained by a party invoking
the jurisdiction of the Court must be
neutralized.. A similar view has been reiterated
by this Court in Mahadeo Savlaram Shelke &
Ors. v. Pune Municipal Corporation & Anr.,
(1995) 3 SCC 33.
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17. In South Eastern Coalfields Ltd. v. State of
M.P. & Ors.,[(2003)8 SCC 648], this Court
examined this issue in detail and held that no
one shall suffer by an act of the Court. The
factor attracting the applicability of restitution
is not the act of the Court being wrongful or a
mistake or error committed by the court; the
test is whether an act of the party persuading
the Court to pass an order held at the end as
not sustainable, has resulted in one party
gaining an advantage it would not have
otherwise earned, or the other party suffering
an impoverishment which it would not have
suffered but for the order of the Court and the
act of such party. There is nothing wrong in the
parties demanding to be placed in the same
position in which they would have been had the
Court not intervened by its interim order, when
at the end of the proceedings, the Court
pronounces its judicial verdict which does not
match with and countenance its own interim
verdict. The injury, if any, caused by the act of
the Court shall be undone and the gain which
the party would have earned unless it was
interdicted by the order of the Court would be
restored to or conferred on the party by
suitably commanding the party liable to do so.
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Any opinion to the contrary would lead to
unjust if not disastrous consequences."
21. Therefore, if all the above facts and law
are taken into consideration, the petitioner cannot
put forth such a casual contention to deny the
legitimate expectation of the private respondents
and other eligible candidates when there is no fault
on their part and the process had also commenced
as provided under the Regulations but was
interrupted by judicial proceedings, which was also
concluded with appropriate direction. Hence,
irrespective of the fact whether any other party had
derived benefit from the pending proceeding before
the CAT in the first round, the fact remains that the
interim order and the pendency had prevented the
process from being completed. Hence the situation is
to be salvaged by the Court itself by enabling the
completion of the process. In such situation, the
conclusion reached by CAT in the present
proceedings through the order dated 09.02.2018
which is impugned herein is also justified and does
not call for interference. However since the time
framing fixed by the CAT has expired, the process
shall now be complied by the petitioner within 30
days from the date of receipt of a copy of this
Order."
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53. In view of the above discussion, we pass the
following:-
ORDER
(i) The writ petition is allowed.
(ii) The order passed by the Central
Administrative Tribunal in Original
Application No.170/395/2022 dated
23.09.2022 is hereby quashed.
(iii) Consequently, the impugned order dated
10.02.2022 bearing No.e-DPAR 203 SAS
2021 passed by respondent No.3 and
impugned Notification dated 07.09.2022
bearing No.PSC647E(1)/2022-23 issued
under Indian Administrative Service
(Appointment by Selection) Regulations,
1997 by respondent No.4 are declared
ultravires and are hereby quashed.
(iv) Respondent Nos. 2 and 3 shall
recommence and continue the process of
forwarding the proposal to the State
Selection Committee under Indian
Administrative Service (Appointment by
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Selection) Regulations, 1997 and complete
the exercise within a period of fifteen days
from the date of receipt of certified copy of
this order.
(v) The Respondent - State Selection
Committee is hereby directed to consider
and forward the Select List to the
respondent No.5 - UPSC.
(vi) The respondent No.5 - UPSC is directed to
expedite the selection process and forward
the selected names to the Union
Government.
There shall be no order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
dn/chs/ykl
