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2015 DIGILAW 288 (KAR)

STATE OF KARNATAKA v. Y. C. SHIVAKUMAR

2015-03-13

K.L.MANJUNATH, R.S.CHAUHAN

body2015
Order The legality and the correctness of the order passed by the Central Administrative Tribunal, Bangalore, dated 14-11-2014 in Original Application No.1115/2014 is called in question in this petition. 2. Heard the learned Advocate General for the State, the learned counsel for respondent No.1, the learned counsel appearing for the U.P.S.C. and the private respondents. 3. The facts leading to this writ petition are here under: Sri Y.C. Shivakumar, respondent No.1 is working as a Joint Commissioner of Commercial Taxes. His claim is for selection from Non-State Civil Service (for short, Non-SCS) to I.A.S. During the year 2014, his request was rejected by endorsement dated 3-9-2014. 4. The claim of respondent No.1 was not considered by the State Government on the ground that as on 1-1-2014, he had crossed the age of 54 years. Therefore, as per the Indian Administrative Service (Appointment by Selection) Regulations, 1997 which has come into force from 1-1-1998 could not be recommended. 5. Challenging the endorsement issued by the State Government, respondent No.1 filed an application before the Tribunal requesting to quash the endorsement dated 3-9-2014 and to declare that while computing the age of the candidates, the number of years during which no selection and appointment to Indian Administrative Service (for short, I.A.S) was accomplished from the Non-SCS category had to be deducted from the age of the candidates and also to issue writ of mandamus directing respondent No.3 to recommend the applicant’s candidature from the Department of Commercial Taxes for consideration by the Selection Committee for selection of I.A.S from Non-SCS category in the ensuing process. 6. It was the specific contention of the applicant before the Tribunal that he was born on 20-5-1958 and as on 19-5-2014, he had attained the age of 56 years. He joined the service as a Stenographer in the Karnataka Government Secretariat in the year 1977 and in March, 1990 he was promoted to the post of Drafting Assistant in the Department of Law and Parliamentary Affairs. 7. In the competitive examination conducted by the Karnataka Public Service Commission, he was appointed as Assistant Commissioner of Commercial Taxes in June 1991 and further promoted as a Deputy Commissioner of Commercial Taxes in June 2003 and later on in May 2012, he was promoted as a Joint Commissioner of Commercial Taxes and he has served 36 years without any block. 8. 8. According to him, he is eligible and qualified for being appointed to I.A.S. by selection under Indian Administrative Service (Selection by appointment) Regulations, 1997 (for short, the Regulations). Though he was eligible for selection and in spite of vacancy available for the years 2010, 2011 and 2012, the selection process was not made for selection on account of the folly of the Government. His case was not considered in spite of vacancy available under Non-SCS for the years 2010, 2011 and 2012 and when the Government wanted to convene meeting for selection in the year 2014, his case was rejected on the ground that as on 1-1-2014, he had crossed the age of 54 years and ineligible. 9. The application was contested by the State Government and the Union Public Service Commission (for short, the U.P.S.C.) on the ground that as per the Regulations, he was ineligible since he had crossed 54 years as on 1-1-2014. It was also the case of the State Government that merely because a meeting was not convened in a particular year cannot be the ground for considering the case of the applicant and the previous years of vacancy can not to be counted and the persons who were eligible for a particular year cannot be considered for the subsequent selection. It was also contended by them that in view of the judgment of Hon'ble Supreme Court in the case of Parmeshwar Prasad v. Union of India and others reported in (2002) 1 SCC 145 , the petition filed by the applicant has to be rejected. 10. The Tribunal after considering the case of all the parties, allowed the application and set aside the endorsement dated 3-9-2014 and directed to consider the candidature of the applicant and also by the screening Committee chaired by the Chief Secretary for selection to the I.A.S. for the year 2014 from the Non-SCS category. 11. Aggrieved by the order of the Tribunal, the present writ petition is filed. 12. Learned Advocate General submits that the Tribunal without considering the judgment of Hon'ble Supreme Court referred to above and relying upon the decision of the Hyderabad Bench of Central Administrative Tribunal in the case of P. Dharmaraj v. State of Andhra Pradesh and others has committed an error and the order of the Tribunal is directly contrary to the judgment of the Hon'ble Supreme Court. 13. 13. Learned Advocate General further submits that as per Regulation No.3, the Central Government in consultation with the State Government is required to determine the vacancies available for Non-SCS category as on 1st January of the year and after considering the vacancies, it is also required to consider the eligibility criteria of the candidates as per Regulation No.4. As per first provision of Regulation No.4, the State Government has no power to consider the case of a 1st person who has crossed the age of 54 years as on January of the year in which decision is taken to propose the names for consideration of the Committee. 14. Relying upon Regulations No.3 and 4, learned Advocate General submits that even if the meeting was not held in the previous years cannot be the ground to consider the case of the petitioner on the ground that he was eligible for selection for the post of Non-SCS category for the years 2011-2014. Therefore, he requested the Court to set aside the order of the Tribunal by allowing the writ petition. 15. Learned counsel for the contesting respondents submits that even though Regulations stipulates that the candidate who has crossed 54 years as on the 1st January of a particular year is not eligible for consideration for obvious reasons the respondents have failed to convene the meeting for the previous years only to avoid meritorious candidates with an intention to avoid meritorious candidates and to cause injustice to them and the interest of such candidates are to be protected. Therefore, he contends that the Tribunal is justified in granting the relief. In the circumstances, he requested the Court to dismiss the writ petition. 16. Having heard the learned counsel for the parties, the only point that arises for our consideration in this petition is Whether the Tribunal has committed an error in quashing the endorsement issued by the Government and further directing the Government to consider the case of the applicant to fill up the post of I.A.S. under Non-SCS category? 17. In order to appreciate the rival contentions, Regulations No.3 and 4 are referred: Regulation No.3 – Determination of vacancies to be filled: The Central Government shall, in consultation with the State Government concerned, determine the number of vacancies for which recruitment may be made under the said regulations each year. 17. In order to appreciate the rival contentions, Regulations No.3 and 4 are referred: Regulation No.3 – Determination of vacancies to be filled: The Central Government shall, in consultation with the State Government concerned, determine the number of vacancies for which recruitment may be made under the said 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.” Regulation No.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 Statement 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. 18. The parties are bound by the Regulations. In terms of Regulation No.3 and 4, admittedly, respondent No.1 had crossed 54 years as on 1-1-2014. It is no doubt true, if a meeting had convened for selection for the years 2010, 2011 and 2012, has rightly pointed out by the learned counsel for respondent No.1 that respondent No.1 had every chance to get selected as an I.A.S. officer. Unfortunately, such a meeting has not been convened for three-consecutive years. It is no doubt true, if a meeting had convened for selection for the years 2010, 2011 and 2012, has rightly pointed out by the learned counsel for respondent No.1 that respondent No.1 had every chance to get selected as an I.A.S. officer. Unfortunately, such a meeting has not been convened for three-consecutive years. When the meeting is not convened in a particular year, the Regulation of 1997 does not provide that the persons who were eligible for selection for any particular year in which year meeting is not convened can also be considered in the subsequent selection. We have also seen the reasons for not convening the meetings for the years 2010, 2011 and 2012. The same has been stated in the Statement of objection filed by the State Government. We do not want to dwell upon the reasons for not conducting the meeting for the years 2010-2012, but we surely appreciate the injustice caused to the merit candidate for not being selected on account of not convening the meeting by the Government. Merely because meeting is not convened, we cannot help out to the petitioner that too when the Hon'ble Supreme Court has laid down the law in Parmeshwar Prasad v. Union of India and others reported in (2002) 1 SCC 145 . Paragraph No.4 of the judgment reads as under: “4. We have carefully considered the submissions made by the learned counsel on either side. In our view, the reasons assigned by the Tribunal below accord with the relevant Rules and Regulations governing the selection for appointment of Non-State Civil Service Officers by selection method. The reliance placed on the decision reported in Sant-Ram-Sharmais inappropriate for the reasons that the Circulars issued by the Government of Bihar cannot be considered as those which could fill up even the assumed gaps, though, in our view, there is none such, for the simple reason that it is only the authority which had the competency to make the Rules or Regulations that could be said to have even such powers. The communication of the Union Public Service Commission, noticed above, also does not lend any support to the claim of the appellant. The communication of the Union Public Service Commission, noticed above, also does not lend any support to the claim of the appellant. The decision of this Court in T. Sham Bhathas no relevance whatsoever to the issue raised before us; nor could the reasons, which weighed with this Court in arriving at the decision therein, be stretched to the extent of obliterating all differences and distinctions specifically envisaged in the respective Regulations providing for different manner or procedure of consideration in respect of appointment by promotion of State Civil Service Officers and appointment by selection of Non-State Civil Service Officers. The decision in Syed Khalid Rizvias well as the one reported in Vipinchandra Hiralal Shahrelated to appointment by promotion of State Civil Service Officers and they cannot be of any assistance for considering the claims and rights of the appellant under the I.A.S. (Appointment by Selection) Regulations. This Court in explaining the meaning of the word ordinarily in Regulation 5 of I.A.S. (Appointment by Promotion) Regulations had come to the particular conclusion having regard to the mandate contained in clause (1) of Regulation 5 that the Selection Committee shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of the State Civil Service, as are held by them to be suitable for promotion to the Service. So far as I.A.S. (Appointment by Selection) Regulations, 1956 is concerned, clause (1) of Regulation 3 only envisages that the State Government may, from time to time, consider by way of selection the cases of persons not belonging to the State Civil Service but serving in connection with the affairs of the State. The provisions contained therein also interdict the State Government from considering cases of persons, who have attained the age of 54 years on the first day of April of the year in which the cases of the persons are considered and consequently, no claims can be asserted in derogation of such stipulation. The provisions contained therein also interdict the State Government from considering cases of persons, who have attained the age of 54 years on the first day of April of the year in which the cases of the persons are considered and consequently, no claims can be asserted in derogation of such stipulation. So far as the case on hand is concerned, the factual details disclosed show and that there is no controversy over the same, that the vacancies being only two, the number of officers proposed for the consideration of the Selection Committee by the State Government shall not exceed five times the number of vacancies and that as a matter of fact, ten eligible persons under the said category have been proposed by the State Government. The omission or lapse, if any, on the part of the State Scrutiny Committee, which is meant to shortlist the candidates proposed by the Heads of various Departments of the Government, is purely an internal working arrangement and such a selection cannot be equated to consideration and selection by the Select Committee envisaged under the Regulations. Consequently, we see no infirmity whatsoever in the findings of the Tribunal in non-suiting the appellant, so as to call for our interference.” 19. In the circumstances, we are of the view that the Tribunal has allowed the application of respondent No.1 in contravention of the law laid down by the Hon’ble Supreme Court in Parmeshwar Prasad v. Union of India and others (stated supra) and contrary to the Regulations, 1997 and the order passed by the Central Administrative Tribunal has to be quashed. Accordingly, we set aside the same. 20. While we allow this petition, we are constrained to observe that when the Regulations, 1997 stipulates that the Government has to convene the meeting every year taking into account the vacancy that would arise as on the first date of the year in order to finalize the selection. If meeting is not convened as rightly pointed out by the learned counsel for respondent No.1, it would be heartburning for the meritorious candidates and their chances of becoming I.A.S cannot be defeated on account of the folly of the Government. The Government shall make all its endeavor to convene the meeting every year and complete the selection process as per the regulations. 21. The Government shall make all its endeavor to convene the meeting every year and complete the selection process as per the regulations. 21. In the circumstance, we issue a direction to the Central and State Governments to finalize the selection list every year depending upon the vacancy that would arise in each year and convene a meeting for such purpose and complete the selection process, so that no injustice would be caused to meritorious candidates and by taking shelter under the guise of Regulations, no injustice shall be caused to any meritorious candidate, which would result in the country loosing honest and meritorious IAS officers, whose services would be an asset to the respective State. 22. With the above observations, the petition is allowed by setting aside the order of the Central Administrative Tribunal dated 14-11-2014 in Original Application No.1115/2014 and we direct the central government to finalise the selection list in accordance with law. Registry is directed to send copies of this order to the respondents concerned.