WP/32290/2010 of B.Amrutha Lakshmi Vs Union of India, rep. by its Secretary, on 31 December 2010

(1) The State Government shall consider the case of aperson not belonging to the State Civil Service butserving in connection with the affairs of the State who(i)is of outstanding merit and ability; andperson not belonging to the State Civil Service butserving in connection with the affairs of the State who(i)is of outstanding merit and ability; and

(ii) holds a gazetted post in a substantivecapacity; andcapacity; and(iii)has completed not less than 8 years ofcontinuous service under the StateGovernment on the first day of January ofthe year in which his case is beingconsidered in any post which has beendeclared equivalent to the post of DeputyCollector in the State Civil Service andpropose the person for consideration ofthe Committee. The number of personproposed for consideration of theCommittee shall not exceed five timescontinuous service under the StateGovernment on the first day of January ofthe year in which his case is beingconsidered in any post which has beendeclared equivalent to the post of DeputyCollector in the State Civil Service andpropose the person for consideration ofthe Committee. The number of personproposed for consideration of theCommittee shall not exceed five times the number of vacancies prescribed tobe filled during the year.be filled during the year.

Provided that the State Government shall notconsider the case of a person who has attained theage of 54 years on the first day of January of theyear in which the decision is taken to propose thenames for the consideration of the Committee.Provided also that the State Government shall notconsider the case of person who, having beenincluded in an earlier select list, has not beenappointed by the Central Government in accordance with the provisions of regulation 9 ofthese regulations.”

8. The above regulation shows the criteria whichshould be applied by the State Government forsending the candidates from the Non-State CivilService cadre of the officers for IAS posts. Therequirements are that the officer should ofoutstanding merit and ability, hold a Gazetted postin a substantive capacity and must havecompleted not less than 8 years of continuousservice under the State Government on the firstday of January of the year in which his case isbeing considered in any post which has beendeclared equivalent to the post of Deputy Collectorin the State Civil Service. Further, he should havenot attained the age of 54 years by that date.These requirements or criteria are important. Both theofficers relied upon this criteria and their contention isthat since they answered this criteria, theCommissioner ought to have sent their names. It isrelevant to note that pursuant to the representationsfrom some of the aspiring candidates, in the year2007, the State Government issued G.O.Ms.No.634General Administration (Special. A) Department dated24-8-2007, declaring the posts in the non State CivilService cadre which are equivalent to the posts ofDeputy Collector for the purpose of Regulation 4. Thesaid G.O.Ms.No.634 which has been issued insupersession of all the previous G.Os. on the subjectreads as follows :

“:Notification :

In supersession of the orders issued in G.O.Ms.No.259,General Administration(Special. A) Department, dated 8-6-2006, G.O.Ms.No.807, General Administration (Special. A)Department dated 23-12-2006 read with G.O.Ms.No.63General Administration (Special. A) Department, dated8.3.2007 and in exercise of the powers conferred undersub-regulation (iii) of Regulation 4(1) of the IndianAdministrative Service (Appointment by Selection)Regulation, 1997, the Government hereby declare that allthe posts which carry the scale of pay of Rs.10,845-22955and above ( revised scales of 2005) in all the Departmentsunder the Government of Andhra Pradesh, barring threeservices viz (1) State Police Service (2) State ForestService and (3) Judicial Service, are equivalent to the postof Deputy Collector in the State Civil Service, for the limitedpurpose specified in Regulation ibid. Officers who havecompleted 8 years of continuous service in the said scale as on 1[st] January of the year for which Selection is madeand are substantive in the above scale of pay as stipulatedin the IAS (Appointment by Selection ) Regulation, 1997are eligible for consideration.”

9. From the contents of the above G.O.634, it isclear that the State Government, pursuant to therepresentations received in that regard, has takeninto consideration only the pay scales and declaredthat all the posts in the Non-State Civil Service Cadrewhich carry the scale of pay of Rs.10845-22955 andabove (revised scales of 2005) are equivalent to theposts of Deputy Collector in the State Civil Service forthe limited purpose specified in Regulation 4(iii). Thisnotification also says that it shall not apply to 1) StatePolice Service 2) State Forest Service and 3) StateJudicial Service, but this exception is not relevant.

10. The first contention of both the aboveapplicants-officers is that both of them are holding the

posts which are equivalent to the post of DeputyCollector in the State Civil Service and they answerthat criteria prescribed in the above G.O.Ms.No.634and Regulation 4 and therefore their names ought tobe considered for selection under the Regulations.Their second contention is that the Commissioner hasno power to decide or filter which officers should besent to the Government for consideration and onwardtransmission to the Committee as contemplatedunder the Regulations and therefore the action of theCommissioner in not forwarding their names iscontrary to the Regulations and also the terms ofG.O.Ms.No.634.

11. Sri Surender Rao, the learned counselappearing for the Deputy Commissioner of Commercial Taxes in support of his above contentionrelied upon three documents namely D.O. letterNo.21-Special-A-3-2010 dated 17.5.2010 sent by thePrincipal Secretary to the Government (Political)addressed to the Heads of Department instructingthem to forward the names for sending proposals, aletter dated 18.6.2010 sent by the Commissioner tothe Principal Secretary to Government seeking aclarification as to upto what level the names ofofficers can be forwarded and a clarification memoNo.483/Spl.A/2010-1 dated 21.6.2010 received by theCommissioner from the Chief Secretary toGovernment and contended that the said documentsshow that his client’s name has to be forwarded bythe Commissioner and that he has no other option asshe answers the criteria mentioned in G.O.Ms.No.634

and also the aforesaid first letter dated 17.5.2010. Insupport of his contentions, Sri Surender Rao relied onthe judgments of the Supreme Court reported in AJITSINGH AND OTHERS vs. THE STATE OF PUNJABAND OTHERS[[1]], HUKAM CHAND SHYAM LAL vs.UNION OF INDIA AND OTHERS[[2]],BABUVERGHESE AND OTHERS v. BAR COUNCIL OFKERALA AND OTHERS[[3]], GUJARAT URJA VIKASHNIGAM LTD. vs. ESSAR POWER LTD.[[4]], A.MANOHARAN AND OTHERS vs. UNION OF INDIAAND OTHERS[[5]], SMT. S. R. VENKATARAMAN vs.UNION OF INDIA AND ANOTHER[[6]], SOMESHTIWARI vs. UNION OF INDIA AND OTHERS[[7]],R.S.GARG vs. STATE OF U.P.[[8]]and YERNENI RAJARAMCHANDER vs. STATE OF A.P.[[9]]There is nodispute with regard to the propositions of law laiddown in these judgments and the said propositionscan be broadly stated as follows.

a) The right to be considered for promotion is a fundamental right.

b) If a statue prescribes that a particularpower given by it should be exercised in a particularmanner, then such power should be exercised in thatmanner, otherwise the exercise of that power wouldbe invalid.

c) If a statutory authority or other authorityexercises a power which is not given to it or exercisesit transgressing its limits either deliberately orinnocently then it would amount to acting in maliceand would be illegal.

d) If promotions to posts are ordered inaccordance with executive instructions which arecontrary to the rules then such promotions would bebad unless rules are amended so as to make suchinstructions as part of the rules.

12. Elaborating the above contention of SriSurender Rao, he and Sri J. Sudheer who supportedhim argued that the initial screening of the officerscan be done only by the State Government underRegulation 4 whereunder it has to forward candidatesin the ratio of 1:5 and thereafter the second screeninghas to be done by the Committee which has toforward the names ultimately to the CentralGovernment/ Union Public Service Commission andconsequently the Commissioner cannot refuse toforward their names. Both the learned counsel furthercontended that the records of the both the officers areclean and they have also been rated as outstandingand this is also a circumstance which shows that theCommissioner ought to have forwarded their namesto the Government. Sri Surender Rao also relied uponthe propositions of law laid down in the abovedecisions of the Supreme Court and contended thatthe action of the Commissioner in not sending thenames of the present two officers would also amountto malice in law and therefore sought for allowing ofW.P.No.32290 of 2010 filed by the DeputyCommissioner of Commercial Taxes. Sri J. Sudheer,learned counsel also argued on the above lines andcontended that his client’s name ought to have beenforwarded. It is the contention of both the counsel that the Commissioner has no power to withhold theirnames at his level and it is only for the Governmentand the Committee under the Regulations to decidewhether or not their names should ultimately beforwarded to the Central Government/Union PublicService Commission and consequently this Courtshould dismiss the writ petitions filed by theGovernment and allow the writ petition filed by theother officer i.e. Deputy Commissioner of CommercialTaxes.

13. The stand of the Government is that there areonly three vacancies/posts in the year 2010 to befilled up by the officers from Non-State Civil Servicecadre and if the heads of departments are not givenany discretion to limit the number of officers to beforwarded by them about more than 300 officersnames have to be considered and therefore theCommissioner and the other heads of departmentsare well within their power to restrict the zone ofconsideration of the officers upto a particular levelfrom whom the names have to be forwarded. Thereasons recorded by the Commissioner in his orderdated 25.10.2010 (CCT’s Ref.No.D2/1741/2009)would become relevant here and they will be referredto infra. The learned Additional Advocate Generalalso pointed out that going by the criteria prescribedin G.O.Ms.No.634 even Commercial Tax Officerswould become eligible for being considered and sinceAssistant Commissioners and Deputy Commissionerswill be their reporting officers or writing their AnnualConfidential Reports an unhealthy competition would develop in the department and therefore theCommissioner thought it fit to send the outstandingofficers from the level of or category of AdditionalCommissioners and Joint Commissioners in hisdepartment.

14. The learned Additional Advocate General furthersubmitted that the Commissioner or any other head ofthe department are well within their power to restrictthe level of officers upto a particular category fromwhom names can be sent in the department andtherefore there is nothing wrong in refusing to sendthe names of the present Deputy Commissioner ofCommercial Taxes and the officers below their level. He relied upon the decisions reported in UNION OF

INDIA v. MOHAN LAL CAPOOR AND OTHERS[[10]],GURUDIAL SINGH FIJJI vs. STATE OF PUNJAB ANDOTHERS[[11]], P.M. BAYAS vs. UNION OF INDIA[[12]],STATE OF NCT OF DELHI vs. SANJEEV aliasBITTOO[[13]].

15. The point that now arises for determination iswhether in the circumstances the Commissioner hasgot the power to restrict the names of officers to besent from upto a particular level or category for beingconsidered for IAS officers posts by way of selectionfrom Non-State Civil Service officers.

16. The respective cases of the parties and theircontentions relevant to the point have already beenset out supra. It is true that a perusal of the languageof Regulation 4, G.O.Ms.No.634, the letter dated 17.05.2010 of the Principal Secretary (Political) to theGovernment addressed to the Heads of Departments,the Government Memo dated 21.06.2010 given inreply to the clarificatory letter dated 18.06.2010 of theCommissioner do not show that the Commissionercan restrict the zone of consideration of the officersupto a particular level or category in the service in hisdepartment from whom names have to be forwardedto the Government. On the other hand, theGovernment Memo No.24407/CT.1(1)/2010-2 dated01.07.2010 would show that the Commissioner hasbeen informed that he may send the proposals of theeligible Non-State Civil Service officers of the cadre ofAssistant Commissioner of Commercial Taxes andabove who are of outstanding merit. The abovedocuments do not show that the Commissioner waspermitted to send only the names of officers from uptothe level of Additional Commissioners and JointCommissioners. There is no dispute about thisaspect.

17. The question however is whether the names ofthese two officers should be mechanically forwardedby the Commissioner just because they answer theabove requirements or the Commissioner has got anydiscretion to send the names of those officers upto aparticular level or category.

18. Sri Surender Rao and Sri J. Sudheer relyingthe of 4 andupon language Regulation G.O.Ms.No.634 argued that since Rule 4(c) of theIndian Administrative Service Rules 1954 speaks of

only selection in special cases and this rule does notcontemplate seniority and therefore seniority factorshould be ignored and the names of all the eligibleofficers as per G.O.Ms.No.634 and Regulation 4 ofthe Regulations should be sent. They also pointed outthat while Regulation 5(ii) of the Indian AdministrativeService (Appointment by Promotion) Regulations1955 which deals with promotion of Deputy Collectorsto IAS speaks of seniority factor to be taken intoaccount for preparation of the list of the officers, suchrequirement of seniority being taken into accountunder the Regulations is not there and therefore theCommissioner cannot be said to be right in going byseniority and restricting the names of the officers tobe sent upto the level of Additional Commissionersand Joint Commissioners as that would amount togoing by seniority only. Sri Surender Rao relying onthe decision reported in S.R. VENKATARAMAN case(6 supra) contended that the act of the Commissionerin not sending the names of both these officers to theGovernment by restricting the level of officers uptoAdditional Commissioner and Joint Commissionerwould amount to malice in law inasmuch as theRegulations and above documents do not give himany such discretion. This contention does not meritacceptance for the reason that the question of anymalice either in law or fact does not arise here as theCommissioner did not single out the two officers hereand refused to send their names, but he also refusedthe names of all the officers below the rank ofAdditional Commissioners and Joint Commissioners,who constitute a classby themselves.

19. In the present case, the Commissioner did notstrictly go by rule of seniority among the eligibleofficers in the Commercial Taxes Department. Thecourse adopted by him is that since a large number ofofficers have to be forwarded going by the criteria ofeligibility as per Regulation 4(iii) and G.O.Ms.No.634,he restricted the zone or level of officers forconsideration upto the level of AdditionalCommissioners and Joint Commissioners. Thus thisis a case where the seniority rule has not beenfollowed but the zone of consideration has beenrestricted upto a particular level. In this connection itmay be noted that the Commissioner in his orderdated 25.10.2010 questioned by the AssistantCommissioner before the Tribunal, has stated thatthere are nearly 300 CTOs and above cadres fulfillingthe minimum eligibility criteria and that if the name ofthe present Assistant Commissioner has to beforwarded only on the ground of eligibility criteriaabout nearly 90 other officers in the cadre of AssistantCommissioners who are senior to him and are alsoeligible have to be forwarded and therefore as thevacancies are only three he limited the zone ofconsideration to the level of AdditionalCommissioners and Joint Commissioners.20. The learned Additional Advocate General in thisconnection further pointed out that for the threeadmitted vacancies the Government have to considerthe names of officers not only from the CommercialTaxes Department but also from the other

departments and if the argument of the applicantofficers that all eligible officers should be consideredis accepted the Government will be faced with asituation where it has to consider hundreds of officerswhereas it has to send only 15 names for the threevacancies for the ratio of 1:5. It may be noted that ifhundreds of officers have to be considered by theGovernment for only three vacancies the wholeselection process may become unworkable and alsounmanageable having regard to the fact that only 15names have to be forwarded. It should also be notedthat each officer may have his own method of stallingthe proceedings with the result that the selectionprocess cannot go on smoothly.

21. It is true that Regulation 4 and G.O.Ms.No.634do not contemplate restriction of the officers upto aparticular level or category from which the names ofthe officers have to be forwarded but at the same timethe said Regulation or G.O.Ms.No.634 do not prohibitthe head of the department in a given situation likethis to restrict the zone of consideration in hisdepartment upto a particular level or category foradministrative convenience. We find force in thiscontention of the learned Additional AdvocateGeneral. It may be noted that as pointed out by thelearned counsel for the applicant officers Regulation5(ii) of the IAS (Appointment by promotion)Regulations, 1955 speaks of seniority but not the IAS(Appointment by Selection) Regulations, 1997.

22. In UNION OF INDIA v. MOHAN LAL CAPOOR

AND OTHERS reported in (1973) 2 SCC 836 the ApexCourt dealt with IAS (Appointment by Promotion)Regulations, 1955 and Regulation 5(ii) of the saidRegulations spoke of seniority factor to be consideredunlike the present Regulation 4 of IAS (Appointmentby Selection) Regulations, 1997 which does notspeak of seniority. In GURUDIAL SINGH FIJJI vs.STATE OF PUNJAB AND OTHERS reported in (1979)2 SCC 368 the Apex Court was considering certainresolutions of the Government of India which providedfor the requirement of issuance of an integritycertificate by the competent authority for an officer forhis inclusion in the select list under the IAS(Appointment by Promotion) Regulations, 1955 and itwas held that the said Regulations were valid. InP.M. BAYAS vs. UNION OF INDIA reported in (1993)3 SCC 319 the fight was between Maharashtra StateCivil Service officers and officers belonging to otherservices for appointment to the posts of IAS officersunder the Selection Regulations as they stood then. The above decisions cited by the learned AdditionalAdvocate General may not support his contention thatseniority factor should be looked into even under theRegulations as they do not provide for any seniorityfactor.

23. It is not in dispute that it is the StateGovernment which proposes the names of suitableofficers under the Regulations for appointment byselection to the IAS posts. It is the contention of theapplicant officers that just because they satisfy thecriteria and are eligible officers their names should be forwarded. The learned Additional Advocate Generalhowever submitted that that having regard to thenumber of vacancies which are only three and as thenumber of candidates in the Commercial TaxesDepartment itself goes upto 300 the Commissionerrestricted the zone of consideration to the level ofAdditional Commissioners and Joint Commissionersas only 15 names have to be sent for three vacanciesfrom all the departments. We find force in hisargument having regard to the administrativeconvenience pleaded by him.

24. It is true that in the Regulations or inG.O.Ms.No.634 nowhere it is laid down that seniorityrule should be followed or the number of officers to besent should be restricted upto a particular level. Itmay however be noted that equally there is no rule ornothing in the Regulations or G.O.Ms.No.634prohibiting the competent authorities/heads ofdepartments from restricting the number of officers tobe sent upto a particular level. At the risk of repetitionit should be noted that when there are only threevacancies and names of 15 officers have to beforwarded in the ratio of 1:5 the authorities cannot beexpected to send the names of all the eligible officersin all the departments whose names may go uptomore than 300 or much more, having regard to theterms of G.O.Ms.No.634, for selecting 15 candidates taking into account their outstanding ability and merit. Such a course may make the whole selection processunmanageable. In such a case any authority will notbe in a position to take a decision smoothly and itmay result in various complications each officer tryingto stall the proceedings in the methods known tohim/her. Even otherwise the Principal Secretary tothe Government by his letter dated 17.5.2010 at para-4 categorically instructed the heads of departmentsthat the Regulations stipulate that the Non-State CivilService officers to be considered for selection shouldbe of outstanding merit and ability and this aspectshould be thoroughly ensured before sending theproposals. The said G.O.Ms.No.634, Regulations andthe above instructions of the Government forconsideration of the cases are subject to outstandingmerit and ability. It is only pursuant to the instructionsof the Government, the Commissioner has exercisedhis discretionary power in restricting the zone ofofficers in his department for consideration uptoAdditional Commissioners and Joint Commissionersto choose the candidates of outstanding merit andability from those categories. It cannot be said thatthe Commissioner has exercised that discretion for anunauthorized purpose and there was no maliciousintention in that regard.

25. The various propositions laid down in thedecisions relied upon by Sri Surender Rao and whichhave already been stated supra were laid down in theparticular facts and circumstances of those caseswhere an immediate injury was suffered by thepersons who approached the Courts. In the presentcase, apart from the applicant officers all otherDeputy Commissioners and Assistant Commissionersand officers below their rank were not considered bythe Commissioner. Therefore, they cannot complainany stigma also. It is true that a right to beconsidered for promotion may be a fundamental rightbut when the number of vacancies is only three in acase like this the Government cannot be expected toconsider a large number of officers running intoaround 300 as that would lead only to scrambleimpeding the selection exercise. As the applicantofficers cannot be said to have suffered any stigmabecause of the action of the Commissioner andhaving regard to the paltry number of vacancies theaction of the Commissioner in restricting the zone ofconsideration can also be considered to be areasonable restriction on the right to be consideredfor promotion. In our view the test is to see whetherthere is any infirmity in the decision making process and not in the decision itself. On an critical analysisof the matter we do not see any illegality, irrationalityand procedural impropriety in the action of theCommissioner.

26. One aspect which needs to be noted here is thatin the Government memo dated 01.07.2010 theGovernment informed the Commissioner that he maysend the proposals of the eligible Non-State CivilService officers of the cadre of AssistantCommissioner of Commercial Taxes and above whoare of outstanding merit. However, the Commissionerrestricted the zone of consideration only to the levelof Joint Commissioners and AdditionalCommissioners. Going by the reasons given by himin his order dated 25.10.2010 rejecting therepresentation of the Assistant Commissioner hereinon the ground that a large number of officersnumbering upto 300 will have to be sent and alsohaving regard to the fact that there was no positivedirection from the Government to send the names ofAssistant Commissioners also and as discretion wasgiven to the Commissioner either to send or not tosend the names of Assistant Commissioners by usingthe word ‘may’ in the above memo, we are of theopinion that the action of the Commissioner for the aforesaid reasons cannot be faulted.

27. We therefore hold that the Commissioner ofCommercial Taxes has got the power to restrict thezone of consideration in sending the names ofofficers upto the level of Additional Commissionersand Joint Commissioners in the Commercial TaxDepartment. For the above reasons, the WritPetitions filed by the Government are allowed and theWrit Petition filed by the other officer is dismissed. Nocosts.

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GHULAM MOHAMMED, J

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N. RAVI SHANKAR, J

31[st] December 2010KK

(Per HON'BLE MR JUSTICE GHULAM MOHAMMED)

KK

31[st] December 2010

[1]AIR 1999 SC 3471

[2]AIR 1976 SC 789

[3]AIR 1999 SC 1281

[4]AIR 2008 SC 1921

[5](2008) 3 SCC 641[6]AIR 1979 SC 49[7]AIR 2009 SC 1399[8]AIR 2006 SC 2912[9]JT 12 (2009) 198[10](1973) 2 SCC 836[11](1979) 2 SCC 368[12](1993) 3 SCC 319[13](2005) 5 SCC 181[10](1973) 2 SCC 836[11](1979) 2 SCC 368[12](1993) 3 SCC 319[13](2005) 5 SCC 181