We cannot, however, ignore that the appellant had
to resort to this litigation for no fault of hers.
consideration of her claim was totally unjust.
The non
Hence, even
though for the reasons that we have stated earlier, the
appellant can not get the relief in the nature of a direction to
consider her for the selection which she had sought, she must
get the damages for non-consideration on unjust grounds.
This is because, the Commissioner for Commercial Tax had
acted to reduce the zone of consideration, contrary to the
rules, and inspite of a letter dated 1.7.2010 from the Principal
Secretary Revenue (CT-I) Department, which had clarified that
the Commissioner may send the proposals of the eligible
candidates of the cadre of Assistant Commissioners and
above, who were of outstanding merit. The award of damages
is necessary also because, a message must go down that
those who are responsible for administration of the State
cannot trample upon the rights of others on the grounds
which are unsustainable in law.REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9193
OF 2013
(@ out of SPECIAL LEAVE PETITION (CIVIL) NO. 23761/2011)
B. Amrutha Lakshmi
... Appellant
Versus
State of Andhra Pradesh and Ors.
H.L. Gokhale J.
Citation;AIR 2014 SC 751
2.
We
will
first
deal
with
the
facts
and
legal
submissions of the first SLP (C) 23761 of 2011. This appeal by
Special Leave seeks to challenge the judgment and order
dated 31.12.2010, rendered by a Division Bench of the Andhra
Pradesh
High
Court
dismissing the same.
in
Writ
Petition
No.
32290/2010,
The said Writ Petition sought to
challenge the order passed by the Central Administrative
Tribunal (CAT) Hyderabad, dated 20.12.2010, on the Interim
Application moved by the appellant in her Original Application
No. 1291/2010, wherein, the CAT rejected the said Interim
Application.
Facts leading to this appeal are as follows:-
3.
The appeal is concerning the right of the appellant
for being considered for the selection into the Indian
Administrative Services (IAS) from the Non-civil services in the
state of Andhra Pradesh.
The selection into the IAS is
governed by the All India Services Act 1951, and IAS
(Recruitment) Rules 1954. There are three sources for being
selected into the IAS as per the IAS (Recruitment) Rules 1954.
They are:- (i) by direct recruitment; (ii) by promotion of a
substantive member of a state civil service and (iii) by
selection from amongst those persons who hold gazetted
posts in substantive capacity in connection with the affairs of
the State, and who are not members of a State Civil Service.
4.
The vacancies in the IAS cadre for each particular
State are notified by the Central Government. In the present
case, we are concerned with the three vacancies meant for
category (iii) above viz. the officers of Non State Civil
Services, which were notified for the year 2011. The case of
the appellant is that, though she was eligible for being taken
into the panel for consideration, she lost her opportunity due
to the erroneous interpretation of the relevant rules by the
respondent No. 1, State of Andhra Pradesh. At the relevant
time, she was working as the Assistant Commissioner of the
Sales Tax, and she satisfied all the eligibility criteria, yet the
Principal Secretary, Department of Revenue (Commercial Tax)
Department,
Hyderabad,
Andhra
Pradesh,
and
the
Commissioner of Commercial Taxes, Hyderabad, Andhra
Pradesh, respondent Nos. 2 and 3 respectively, restricted the
zone of consideration only to the higher officers amongst the
eligible
candidates
viz.,
to
the
Joint
and
Additional
Commissioners of the Commercial Tax Department.
5.
The appellant, therefore, filed Original Application
No. 1291 of 2010 before the Central Administrative Tribunal
(CAT) and prayed for the following main reliefs:-
“1.) This Hon’ble court may be pleased to declare
that the action of the 3rd respondent in not considering
the case of the applicant for being proposed for
appointment to I.A.S., in terms of I.A.S. (appointment
by selection) Regulation 1997 is illegal and is contrary
to and violation of Regulation 4 of I.A.S. (appointment
by selection) Regulation 1997 and is also violative of
Article 14, 16 and 21 of the Constitution of India.
2). This Hon’ble Tribunal may be pleased to declare
the action of the 5th respondent in not forwarding the
name of the applicant to 3rd respondent is illegal and
contrary to G.O.Ms NO. 634 dated 24.8.2007 and is also
contrary to Regulation No. 4 (1) of I.A.S. (appointment
by selection) Regulation 1997.
3). This Hon’ble Tribunal may be pleased to declare
that applicant is entitled to be considered by the
Committee (as constituted under Regulation 3) by 2 nd
respondent for appointment to I.A.S., by selection
based on her outstanding merit and ability and pass
such other order or orders as this Hon’ble Tribunal may
deem fit and proper in the circumstance of the case.”
6.
The appellant prayed for the interim order which
read as follows:-
“In the above circumstances this Hon’ble
Tribunal may be pleased to direct the 2 nd respondent
not to convene the meeting of the Committee and not
to consider the case of any other candidate(s)
proposed by the 3rd respondent for appointment to
I.A.S. by selection (of A.P. State Non-SCS Officers),
pending disposal of O.A., and pass such other order or
orders as this Hon’ble Tribunal may deem fit and
proper in the circumstances of the case.
In the alternative direct the 3rd respondent to
consider and propose the name of the applicant for
consideration by the 2nd respondent for appointment
by
selection to I.A.S. before the cases of other
candidates are considered and pass such other order
or orders as this Hon’ble Tribunal may deem fit and
proper in the circumstances of the case.”
7.
The CAT, however, declined to grant the interim
relief that the appellant had prayed for.
The
appellant therefore, carried the matter to the
Andhra Pradesh High Court, where the High Court
has held the restriction of the zone of consideration
to be valid.
Being aggrieved by this order, the
appellant has filed this appeal by Special Leave.
8.
Mr.
P.S.
appeared
Narshimha,
for
the
learned
appellant,
senior counsel
Mr. A.T.M.
Rangaramanujam, learned senior counsel appeared
for the first respondent State of Andhra Pradesh,
and the Principal Secretary to the Department of
Revenue (Commercial Taxes) Andhra Pradesh, and
the Commissioner of Commercial Tax, Andhra
Pradesh.
Mr. P.P. Malhotra, Additional Solicitor
General has appeared for respondent No. 4 Union of
India
and
Mr.
Radhakrishnan,
learned
senior
counsel for respondent No. 5 Union Public Service
Commission.
9.
It was pointed out by Mr. Narshimha, learned
counsel
for
the
regulations
for
(Appointment
appellant,
our
by
that
purpose
Selection)
the
are
relevant
the I.A.S.
Regulations, 1997.
Clause No. 3, regulation Nos. 3 and 4 thereof, are
relevant for our purpose. Regulation 3 deals with
the
determination
of
vacancies
to
be
filled.
Regulation No. 4 lays down the provisions for the
State
Government
to
send
proposals
for
consideration of the committee referred to in
regulation
No.
3,
which
is
the
committee
constituted under regulation No. 3 of the Indian
Administrative
Appointment)
Services
Regulations
(Promotion
1955.
by
These
two
regulations Nos. 3 and 4 read as follows:-
“3.
be filled:
Determination of vacancies to
The Central Government shall, in
consultation with the State Government concerned,
determine the number of vacancies for which
recruitment may be made under these regulations
each year.
The number of vacancies shall not
exceed the number of substantive vacancies, as on
the first day of January of the year, in which the
meeting of the Committee to make the selection is
held.
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 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 54 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 Govt 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
provisions of regulation 9 of these regulations.”
10.
the
As can be seen from these two regulations, the
Central Government has to determine the number vacancies
for which recruitment may be made each year, which is to be
done in consultation with the State Government. The number
of vacancies to be determined, shall not exceed the number
of substantive vacancies, as on the first day of January of the
year, in which the meeting of the selection committee is held.
Regulation No. 4 lays down, that the State Government has to
send the proposal for consideration of the committee. It is
important to note that while sending the recommendations
from Non Civil Services section, the Government has to see
that (i) the person concerned is a person of outstanding merit
and ability, (ii) he holds a Gazetted post in a substantive
capacity, (iii) he has completed at least 8 years of continuous
service on the first day of January of the year in which his
case is being considered, (iv) the person must belong to a
post which has been declared equivalent to the post of
Deputy Collector in the State Civil Service, (v) the number of
persons proposed for consideration of the committee shall not
exceed five times the number of vacancies, and (vi) the
persons to be recommended should not have attained the age
of 54 years on the first day of January of that year in which
the names are considered by the committee.
11.
As far as the equivalence with the post of Deputy
Collector is concerned, the Andhra Pradesh Government came
out with a G.O.Ms No. 634 of the General Administration
(Special Department) dated 24.8.2007, which provided as
follows:-
“NOTIFICATION
In supersession of the order issued in
G.O.Ms,
General
Administration
(Special.A)
Department, Dated: 08.06.2006, G.O.Ms. No. 807,
General Administration (Special A) Department, Dated:
23.12.2006, read with G.O.Ms No. 63 General
Administration
(Special
A)
Department,
Dated:
08.02.2007, and in the exercise of powers conferred
under sub-regulation (iii) of regulation 4(1) of the Indian
Administrative Service (Appointment by Selection)
Regulations, 1997, the Government hereby declare
that, all the post carry the scale of pay of Rs. 10,845-
22,995 and above (revised scales of 2005) in all the
departments under the Govt. of Andhra Pradesh,
barring the services viz. (i) State Police Service, (ii)
State Forest Services, and (iii) Judicial Service, are
equivalent to the post of Deputy Collector in the State
Civil Service for the limited purpose in regulation ibid.
Officers who have completed 8 years of continuous
service in the said scale as on 1 st January of the year
for which selection is made and are substantive in the
above scale of pay as stipulated in IAS (Appointment by
Selection)
Regulations
1997,
are
eligible
for
consideration.
(BY ORDER AND IN THE NAME OF THE
GOVERNOR OF ANDHRA PRADESH)
J.HARI NARYAN
CHIEF SECRETARY TO GOVERNMENT
12.
Thus, as can be seen, sub-regulation
regulation 4 (1), referred to above,
(iii) of
includes all the posts
which carry the scale of pay of Rs. 10,845-22,995 and above,
and
(ii)
persons
from
all
the
departments
under
the
Government of Andhra Pradesh except State Police Service,
State Forest Service and Judicial Service are eligible to be
considered.
The notification declared such posts to be
equivalent to the post of Deputy Collector in the State Civil
Service, for the limited purpose specified in the Regulations.
The Principal Secretary to the Government accordingly, wrote
to
the
different
departmental
heads
to
send
the
full
particulars of eligible Non Civil Services officers who fulfill the
criteria.
In para 4 of this letter he specifically stated as
follows:-
“4. The Regulations stipulate that the
Non-SCS Officers to be considered for selection should
be of outstanding merit and ability. This aspect should
be thoroughly ensured before sending the proposals.
An Officer who is facing disciplinary enquiries and
against whom adverse remarks are recorded in the ACR
or whose integrity is not certified, cannot unequivocally
be said to be of outstanding merit and ability.”
13.
The Commissioner of Commercial Tax, Andhra
Pradesh by his letter dated 18.6.2010 sought a clarification
whether all the eligible officers in the cadre of Assistant
Commissioner and above would be considered as eligible, if
they were of substantive ability, had completed the minimum
years of service, and had not crossed the age of 54 years as
on 1.1.2010. The Commissioner got a reply that the necessary
instructions may be adhered to scrupulously. He subsequently
got
another
letter
dated
1.7.2010
from
the
Principal
Secretary, of the Revenue (CT-I) Department, that the names
of officers from the cadre of Assistant Commissioner of
Commercial Taxes and above, who are of outstanding merit
and are eligible, may be forwarded. It so happened, that the
names which were sent for consideration were, however, only
of the Joint Commissioners and Additional Commissioners and
not Assistant Commissioners.
It is, therefore, that the
appellant filed the above Original Application and applied for
interim relief which came to be declined, and the order of the
CAT was left undisturbed by the High Court. This has led to
the present Civil appeal.
14.
According to Mr. Narshimha, the relevant rules were
very clear, and the appellant satisfied all those requirements.
The appellant was a Gazetted Officer in a substantive
capacity, and she had completed more than 8 years of
continuous service as an Assistant Commissioner of Sales Tax
which was a post declared to be equivalent to the post of
Deputy Collector. She had not completed the age of 54 years,
and there was no dispute about her outstanding merit and
ability.
The CAT, however, rejected the prayer for interim
relief, solely on the ground that by the time the matter was
considered by the CAT, the selection had already been
completed, and therefore, the interim prayer as sought could
not be granted. In the High Court, it was however contended
on behalf of the Commissioner for Commercial Tax, that if the
criterion was to be applied as it is, the number of officers to
be considered from the Commercial Tax Department itself
would be more than 300. It was submitted that there are in
all 30 departments in the State Government, and therefore,
the Commissioner and other heads of department were well
within their power to restrict the zone of consideration up to a
particular level, from which the names may be forwarded. It
was also pointed out on behalf of the Government that, if the
criterion as insisted by the appellant was applied, some of the
persons of the rank of Assistant Commissioners or Deputy
Commissioners will get selected, they will become superior to
Joint and Additional Commissioners, and will write the Annual
Confidential Reports of such officers who were presently
holding posts higher to them. The High Court posed the
question, as to whether the names of these junior officers
should be mechanically forwarded. In paragraph 19 of the
judgment the High Court held as follows:-
“19. In
the
present
case,
the
Commissioner did not strictly go by rule of seniority
among the eligible officers in the Commercial Taxes
Department. The course adopted by him is that
since a large number of officers have to be
forwarded going by the criteria of eligibility as per
Regulation 4 (iii) and G.O.Ms No. 634, he restricted
the zone or level of officers for consideration upto
the level of Additional Commissioners and Joint
Commissioners. Thus this is a case where the
seniority rule has not been followed but the zone of
consideration has been restricted upto a particular
level.......”
15.
Again, in paragraph 23, the High Court observed
that just because the appellant officers satisfy the criteria and
are eligible officers, their names could not be forwarded. This
is because the number of vacancies to be filled was 3, and the
number of candidates to be recommended will be 5 times that
number i.e. 15 only. The High Court therefore, held that the
Commissioner of Commercial Taxes had the power to restrict
the zone of consideration in sending the names above the
level of Additional Commissioners and Joint Commissioners.
The Writ Petition filed by the appellant was, therefore,
dismissed.
16.
It is material to note, that a counter affidavit has
been filed on behalf Government of Andhra Pradesh, where in
para 4 it is stated as follows:-
“4. I say and submit that there may be large
number of officers who will meet above eligibility but
number has to be restricted to five times the
vacancies for consideration from all departments put
together. Commercial Taxes Department is one of
departments in the State. There are more than 30
departments in the State.
There were only (3)
vacancies. Hence maximum number that could be
considered by the Committee was (15) for all
departments put together. In order to have healthy
competition and to avoid unhealthy competition, out
of all eligible persons having outstanding merit and
ability, persons having highest seniority were
recommended. ...”
17.
The question for our consideration is whether such
a restriction of the candidates to be considered, who were
otherwise eligible, was permissible under the rules. It is not
disputed that the petitioner was very much eligible for being
considered,
and
there
were
so
many
similar
eligible
candidates. It was being portrayed by the respondents that
from every department 300 persons were eligible, and there
are 30 departments and therefore, the number would go to
some 9,000 and above. Now, what is to be noted is that all
that the eligible officers concerned have, is a limited right of
being considered, though they do not have a right of
promotion, as held in Shankarsan Dash Vs. Union of India
1991 (3) SCC 47. Mr. Narshimha submitted that this limited
right should not be denied to the candidates like the
appellant, on the basis of the ground that in such a case a
large number of names will have to be forwarded. That apart,
he submitted that there was no substance in this justification,
and it was merely a bogie.
This is because what the State
Government had to do first was to find out as to who fulfilled
the criteria. Undoubtedly, a large number of persons will fulfill
the criteria, being Gazetted Officers with more than 8 years of
service, and less than 54 years of age on the relevant date.
They would also have to be in the required pay scale.
However, as stated in paragraph 4 of the Principal Secretary’s
letter, while considering the outstanding merit and ability,
those with adverse remarks and those facing departmental
enquiries were to be excluded.
Therefore, there was no
difficulty in excluding such persons on those grounds.
Thereafter, what remained to be seen was as to who were the
persons with outstanding ability and merit amongst them?
The State Government maintains their annual appraisal
reports, and for such selection it lays down some criteria of
maintaining the outstanding merit and ability over certain
period viz. that in previous five years the officer must have 3
outstanding reports, or that in the previous 3 years the officer
concerned must have all throughout an outstanding rating
etc. 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. After all these tests are applied, the
number of persons to be recommended will not be very large.
However,
once
a
candidate
comes
into
the
zone
of
consideration, and satisfies all the requirements, including
that of outstanding merit and ability, he cannot be told that
merely because he is junior in the seniority, his name will not
be forwarded for consideration. The rule requires that from
amongst the outstanding officers, 15 names are to be
forwarded to the Central Government, and hence it is possible
that amongst these 15, a junior officer may as well figure,
depending upon the assessment of his merit. He cannot be
eliminated merely on the ground that he is a junior officer,
and that if selected he will write the ACRs of his superiors.
18.
We have got to accept that, if the rules for selection
contain a requirement, the same has to be applied uniformly
and strictly, and none from the eligible group can be
eliminated from being considered on any criteria, other than
those which are provided in the rules. If there is a criteria laid
down for selection, the Administration has to confine to the
same, and it cannot impose an additional criterion over and
above whatever has been laid down. If that is done, it will no
longer remain an exercise of discretion, but will result into
discrimination.
It
will
mean
treating
similarly
situated
employees dissimilarly, and denying equal opportunity to
some of them in the matter of public employment on the
basis of a criterion which is not laid down, resulting into
violation of Articles 14 and Article 16(1) of the Constitution of
India. If the rules were to provide that in the event of large
number of persons coming into the zone of consideration, the
names of the senior most alone will be forwarded, then it
would have been a different situation.
In the absence any
such restrictive rule, as in the present case, the decision of
the respondents cannot be justified.
19.
In view of the reasons stated above, we accept the
submissions canvassed on behalf of the appellant.
The
prayers in the O.A. filed by the appellant were negatively
worded viz. to declare that the action of the respondents not
to consider the case of the appellant, and not to forward her
name, was illegal.
In a way it was a prayer for a positive
declaration viz., that the appellant and persons situated like
her were entitled to be considered by the committee, if they
are otherwise eligible. We are of the view that, the appellant
is entitled to such a positive declaration, which order takes
care of the prayer as made in the Original Application.
20.
In the circumstances we allow this appeal, set-aside
the impugned judgment and order of the High Court as well as
of the Central Administrative Tribunal, modify the relief as
prayed in the O.A., and hold that the decision of the
Respondents not to consider the appellant for the selection,
amounted to her being treated dissimilarly, though she was
situated similarly to the recommended officers. The decision
was
violative
of
Article
14
and
Article
16(1)
of
the
Constitution, since it was arrived at on the basis of a criterion
which was not laid down. However, the selection for the year
2011 was over, even before the interim application in the CAT
was decided. Setting aside the selection conducted some two
years back, and asking the respondents to re-do the exercise
after considering the appellant and other similarly situated
candidates, would create lot of uncertainty, in as much as the
appellant and such other similarly situated candidates, might
or might not finally succeed in the selection process. Hence, it
will not be proper now to set aside the selection of the
selected candidates.
Therefore, though this declaration is
being granted, viz. that the appellant and persons situated
like her were entitled to be considered by the committee, no
further relief in that behalf can be granted to them.
The
opinion rendered by us will have to operate prospectively in
the matter of application of the concerned rules, for the future
selections. Hence, this appeal is being allowed in part.
21.
We cannot, however, ignore that the appellant had
to resort to this litigation for no fault of hers.
consideration of her claim was totally unjust.
The non
Hence, even
though for the reasons that we have stated earlier, the
appellant can not get the relief in the nature of a direction to
consider her for the selection which she had sought, she must
get the damages for non-consideration on unjust grounds.
This is because, the Commissioner for Commercial Tax had
acted to reduce the zone of consideration, contrary to the
rules, and inspite of a letter dated 1.7.2010 from the Principal
Secretary Revenue (CT-I) Department, which had clarified that
the Commissioner may send the proposals of the eligible
candidates of the cadre of Assistant Commissioners and
above, who were of outstanding merit. The award of damages
is necessary also because, a message must go down that
those who are responsible for administration of the State
cannot trample upon the rights of others on the grounds
which are unsustainable in law.
We, therefore, direct the
State of Andhra Pradesh to pay the damages of rupees fifty
thousand to the appellant. This will be over and above the
litigation cost of rupees twenty five thousand, which we
hereby award.
22.
The issue involved in the appeal arising from the
second SLP (C) No. 16042/2012 is same as the one in the
earlier matter. We have heard Mr. Jayant Bhushan, learned
senior counsel for the petitioner in the second matter, as well
as, the counsel for the respondents. For the reasons stated in
the first matter, we grant leave in this matter and pass the
same order, as in the first one. This appeal will also stand
allowed, accordingly, with damages quantified at rupees fifty
thousand, and cost of rupees twenty five thousand to be paid
by the first respondent.
23.
We direct that the amounts towards the damages
and the cost be paid to both the appellants within six weeks
from the receipt of a copy of this order.
In both these
appeals, it will be open to the State Government to recover
these amounts from the then Commissioner of Commercial
Tax, and/or whoever were the officers responsible for the non-
consideration of the claim of both the appellants.
........................................
.J.
[ H.L. Gokhale ]
.....................
....................J.
[ J. Chelameswar ]
New Delhi
Dated : October 18, 2013
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