Jharkhand High Court
The State Of Jharkhand vs Shiv Kumar Ram on 28 July, 2022
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (S) No. 531 of 2018
1. The State of Jharkhand
2. The Chief Secretary, Govt. of Jharkhand, Ranchi
3. The Secretary, Department of Agriculture, Animal Husbandry and Co-
operation, Govt. of Jharkhand, Ranchi
4. The Secretary, Department of Personnel, Administrative Reforms and
Rajbhasha, Govt. of Jharkhand, Ranchi --- --- Petitioners
Versus
1. Shiv Kumar Ram
2. Union Public Service Commission, New Delhi
3. Union of India, Principal Secretary, Department of Personnel, Govt. of
India, New Delhi --- --- Respondents
---
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan For the Petitioners: Mr. Sachin Kumar, A.A.G-II For the Respondent No. 1: M/s M.M. Pal, Sr. Advocate, Mohini Kumari Gupta, Advocate For the Resp.-UPSC: Mr. Faizur Rahman, Advocate
----
Aparesh Kumar Singh, J:
11/ 28.07.2022 Heard learned counsel for the parties.
2. Name of the applicant / Respondent No. 1 herein was not recommended by the Departmental Screening Committee for the vacancy for the year 2016 (notified on 03.02.2017 by the DOP&T, Government of India) for selection of Non-SCS (Non State Civil Services) Officer for appointment to the IAS, Jharkhand Cadre for the select list of 2016. The Departmental Committee in its meeting held on 18.04.2017 considered the names of nine officers including the name of the applicant but recommended only one name of Dr. Subhash Singh, Joint Director, Agriculture, Hazaribag. Being aggrieved, Applicant approached the learned Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi in OA/051/00165/17 seeking a direction upon the Respondents to consider his case for appointment in the IAS Cadre against Non-SCS vacancy for the year 2016 without any delay and discrimination vis-à-vis other candidates.
3. Applicant was working as a District Agriculture Officer, West Singhbhum at the relevant point of time. Against similar vacancy for Non-SCS category notified by the DOP&T, Government of India for the year 2015, name of the applicant was not recommended which led to filing of W.P (S) No. 3486/2016. Writ petition was disposed of vide order dated 13.09.2017 with liberty to the applicant to approach the learned Central Administrative Tribunal. Petitioner thereafter approached the learned CAT for a direction for consideration of his case to the Non-SCS vacancy for the year 2016 to the IAS 2 Cadre as by that time, the Department of Personnel, Administrative Reforms and Official Languages, Government of Jharkhand vide letter dated 13.02.2017 had asked for the name for two vacancies notified in the year 2016 by the DOP&T, Government of India from the concerned Departments. Earlier, applicant's name was recommended for the vacancy of 2014 to the Non-SCS quota and he was called for interview vide letter no. 9319 dated 27.10.2015, but was not selected. This time the Departmental Level Committee while considering the name of officers for the vacancy of 2016, did not recommend the applicant's name on the ground that the Reviewing Authority was not posted as the Director, Agriculture at the relevant point of time. Applicant had also taken a plea that the same Departmental Level Committee had taken into consideration the ACRs for the relevant years while recommending his name for the vacancies of 2013 and 2014. Therefore, on that ground, Departmental Level Committee should not have excluded his candidature for consideration against the vacancy of 2016
4. Respondents took a plea that his ACRs were not cleared for the period 2012-14 and were not updated till 2015-16 and his available ACRs were not recorded upto three levels (i) Reporting Officer, (ii) Reviewing Officer and (iii) Approving Officer. Details of movable and immovable properties were not updated by the candidate. Since his ACRs for the last ten years were not available or complete in all respects, the Committee did not agree to recommend his name. Respondents took the plea that the applicant had only a right for consideration and not a vested right to claim promotion. Evaluation of the officer's suitability and eligibility is within the domain of the Administrative Authority and the Tribunal should not issue any direction to recommend an officer's name in exercise of powers of judicial review. Tribunal considered the case of the parties and the reasons recorded by the Committee declining to recommend the name of the applicant's name on inter-alia the following grounds i.e. (i) clearance from Vigilance and Lokayukt is not up-to- date, (ii) on the ACR for the year 2010-14, Shri K.K. Sone had recorded his remarks as Reviewing Authority, whereas he was holding that post only for the period 17.07.2012 to 16.01.2014. Tribunal also observed that as regards the clearance from Vigilance / Lokayukta, it was not a case of adverse remarks. Not being up-to-date only meant that these Institutions had not sent their report by the due date. This process is internal to the Administrative Authorities on which applicant has no control. It was the duty of the Administrative Authorities to ensure that well before the meeting, clearance reports of all the 3 officers are obtained from the concerned authorities. Learned Tribunal also commented on the remarks made by the then Director, Agriculture. It observed that it is common knowledge that the authorities are the custodian of ACRs and getting the ACRs completed by all the three levels is their responsibility. Most likely the Agriculture Department would have sent the ACRs to Shri K.K. Sone who in good faith signed it without crosschecking his period of tenure. If any discrepancy happened, it was only because of the authorities for which the applicant cannot be insinuated of having played any fraud. Tribunal then went on to examine the effect of such discrepancy in recording of his ACR. It observed that officer's work is directly seen by his Reporting Authority who has given outstanding remarks in the concerned year. Shri K.K. Sone had not enhanced the remarks. Therefore, this minor discrepancy could be ignored. In the light of the aforesaid reasoning, the Tribunal passed the following direction.
"19. We also take note that against two names which the Agriculture Department could have sent, they have recommended only one name. Thus, one slot is available. Therefore, it would meet the ends of justice if the Agriculture Department's Screening Committee meets again as expeditiously as possible, and well before the deadlines set by the Personnel Department of the Jharkhand Department, to consider the eligible candidates including the applicant for one slot available for the department.
20. Accordingly, the respondent no. 3 is directed to convene the departmental level Screening Committee for consideration of names of eligible candidates including the applicant for one available slot which the Department is allowed to recommend. It is also directed that they should hold the meeting well in time to send the recommendation before the due date set by the Secretary, Personnel, State of Jharkhand. The OA is thus disposed of. No order as to costs."
5. Thereafter, Departmental Level Committee meeting was held on 29.12.2017 in the light of the direction passed by the learned CAT, but Departmental Level Committee in consultation with the Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand and Law Department, expressed its inability to recommend the name of the applicant and took a decision to prefer an appeal against the order of learned CAT. Writ petition was thereafter filed on 01.02.2018. The applicant has been pursuing contempt petition in the meantime. This court vide interim order dated 17.05.2018 took note of the submission of learned State counsel that the exercise for appointment through selection to one post of Non-State Civil Service category for the year 2016 could not be made within the cut-off date i.e. 31st December 2017 and at that point of time, process for consideration of appointment through selection to the Non-SCS category for the subsequent year 4 was underway. Petitioner State prayed for interim protection since the applicant was pursuing contempt petition before the learned CAT. While allowing time to the applicant / Respondent No. 1 who entered appearance to file vakalatnama and counter affidavit, it was directed that no coercive steps be taken in the meantime against the petitioner in pursuance of the order dated 20.11.2017 passed in OA/051/00165/17.
6. During the course of the proceeding, learned counsel for the State was directed to bring on record the pleadings of the Original Application, in particular the written statement filed by the UPSC and Union of India vide order dated 17.12.2020. Meanwhile, learned counsel for the UPSC also sought time to bring on record the show-cause filed by the UPSC in CCPA No. 28/2017 and written statement, if any, filed in the Original Application No. 165/2017 by the UPSC. Learned counsel for the UPSC was also asked to seek specific instruction as to whether the vacancy for Non-SCS category for the year 2016 which was declared as lapsed by the UPSC, could be revived. Be it noted here that by letter dated 03.01.2018, Commission had declared in exercise of powers under Regulation 5(c) of I.A.S (Appointment by Selection) Regulation, 1997 that it was not practicable to hold the meeting of the Selection Committee for the select list of 2016 for the selection of Non-SCS officers for appointment to the IAS of Jharkhand Cadre since the meeting of Selection Committee could not be held on 31.12.2017. This fact was brought to the Court's notice by the UPSC through its counter affidavit on 25.02.2021. It so transpires from the affidavit that no appointment could be made against the select list of 2016. However, two officers of Non-SCS category were appointed for the vacancy of 2017 pursuant to the recommendation made by the Department in 2017 vide notification dated 30.01.2019 issued by the Ministry of Personnel, Public Grievances and Pensions, (Department of personnel and Training), Government of India. The said recommendation were made subject to the outcome of the O.A. No. 051/00963/2018 filed by the applicant before the learned CAT in respect of his claim for consideration for the vacancy of 2017. Be it also noted here that the two vacancies of the year 2017 were notified vide letter dated 31.01.2018 issued by the Under Secretary to the Government of India, Ministry of Personnel, Public Grievances and Pensions. From the pleadings and letters of Department of Personnel, Public Grievances and Pensions, Government of India, it appears that two vacancies for the year 2016 were declared on 03.02.2017 and two vacancies for the year 2017 were declared on 31.01.2018 for selection to the Non-SCS category of IAS. The 5 pleadings on record also show that vacancy for the year 2015 were notified by the Government of India in the year 2016.
7. Petitioner State have defended their action. According to them, consideration of the applicant's case earlier for the vacancies of 2013-14 and 2014-15 were mistake of fact and error committed on the part of the State as ACR reports prepared and recommended were by the Reviewing Officer i.e. Director, Agriculture for the time duration of 2007-2012, whereas the Final Approving Officer i.e. Secretary, Agriculture, Animal Husbandry and Cooperative did not report any supervision on the ACR of the Respondent. Once it was ascertained that there was irregularity in ACR reports for five years from 2007-2012, it was not proper to recommend the name of the applicant for the IAS Cadre. A Non-SCS candidate is eligible for recommendation for appointment to the IAS Cadre if his ACR report for ten years and more is found suitable and satisfactory by the department concerned. Department did not process appropriate ACR reporting for ten years which was preliminary condition for considering his candidature in the Departmental Screening Committee. In the light of the opinion obtained from the Department of Law, the Department Level Committee presided by the Secretary and two other Members i.e. Director, Agriculture and Director, Primary Education in its meeting held on 13.12.2017 decided to refer the matter to the Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand for seeking valuable opinion. After having the opinion of the Department of Law and Personnel, Administrative Reforms and Rajbhasha, Department Level Screening Committee again in its second meeting held on 26.12.2017 referred the matter to the Personnel Department to seek valuable suggestion on the relevancy of ACR report in the light of circulars issued by the department. Thereafter, the Department Level Screening Committee in its meeting held on 29.12.2017 decided to prefer an appeal before the High Court against the order passed by the learned CAT. Department did not recommend his name for IAS Cadre in view of irregularities in the reporting of the ACR.
8. UPSC on its part has referred to the background of the case of the applicant for the vacancies for the year 2015 and stated that pursuant to the order dated 20.11.2017 passed by the learned Tribunal in the instant O.A, Departmental Level Screening Committee was required to be convened for reconsideration of the name of the applicant along with Non-SCS Officers against one slot. Thereafter, it was to be put before the State Screening Committee which implied that eligibility list submitted by the State 6 Government for preparation of the Select list of 2016 might get changed. In that view of the matter, Selection Committee meeting scheduled for 23.11.2017 for preparation of select list for 2016 against two vacancies for selection of Non- SCS officers for appointment to the IAS of Jharkhand cadre was deferred vide Commission's letter dated 22.11.2017. State Government was further informed by the Commission vide letter dated 18.12.2017 that no action has been taken regarding consideration of the name of the applicant in view of the order of learned CAT. Commission also informed that in absence of any response from the State Government in the matter, it will not be able to take further action. The State Government did not respond to the letter dated 18.12.2017 by the end of the year 2017. Since the State Government did not complete the proposal as per the direction of the learned Tribunal dated 20.11.2017 passed in the instant O.A, Selection Committee meeting for preparation of the select list of the year 2016 could not be convened by the end of the year 2017. Therefore, Commission invoked the Regulation 5(c) of the Selection Regulation vide letter dated 03.01.2018. After the Regulation 5(c) of the Selection Regulation is invoked in respect of preparation of Select List for selection for Non-SCS Officers for appointment to the IAS, Selection Regulation do not provide for convening a selection committee meeting for preparation of select list for the same year. It has been further stated that after invocation of Regulation 5(c) of the Selection Regulation, 1997, vacancies for the said year are carried forward for determination of vacancies for the subsequent year by the Government of India, DOP&T in consultation with the State Government. Commission has no role to play in determining the vacancies for appointment of IAS.
9. Learned senior counsel for the Applicant-Respondent has submitted that the order of learned Tribunal is perfectly justified. On account of non- recommendation of the name of the applicant by the Department Level Screening Committee by the end of the year 2017 pursuant to the order of learned Tribunal dated 20.11.2017, the Commission has declared the vacancies for the year 2016 to have lapsed by letter dated 03.01.2018. The main grounds for challenging the non-recommendation of his name by Agriculture department were as follows:
The applicant was recommended in 2014 on the basis of same set of ACRs which were up to 2014 and he was also called for interview vide letter no. 9319 dated 27.10.2015, though he was not selected Therefore, the authorities are not allowed to raise questions about the ACRs for the period 2010-14 for non-recommendation of his case.7
i) Since sufficient proposals from different departments did not reach the Department of Personnel, respondents were forced to extend the dates a number of times. Lastly, the date was extended up to 21.07.2017, yet the name of the petitioner has not been sent in spite of his making a representation dated 11.05.2017. Even in 2014, applicant's name was not sent initially for the year 2011 for three vacancies of Non- SCS officers, but after he moved the Hon'ble High Court, Jharkhand in W.P (S) no. 277 of 2013, his name was recommended and sent for consideration.
ii) His ACRs are throughout excellent. On the same set of ACRs, his name has been recommended in the year 2013 and 2014. Therefore, his rejection now on the ground that the Reviewing Authority Sri K.K. Sone was not posted as Director, Agriculture during the relevant period, is not sustainable.
iii) Another ground for rejection is that his vigilance clearance from Cabinet Vigilance and Lokayukt is not up to date is also not sustainable because in the case of Dr. Subhash Singh also in the year 2015, his clearance was not up-to- date, but his name was recommended subject to receiving the clearance.
iv) A PIL was filed by some persons including the applicant which led to Cont. Case (Civil) No. 120/2014 in which this Court by order dated 07.06.2017 directed the state to consider the name of the petitioners for recommending their names for the post of IAS from the Non-SCS category against future vacancies, if found eligible.
The Respondent / petitioner herein in his written statement has stated that the Screening Committee in its meeting held on 30.05.2016 under the Chairmanship of the Secretary, Department of Agriculture, Animal Husbandry and Co-operative, Government of Jharkhand found the following lacunae with respect to the applicant:-
i) His ACR was not cleared for the period 2012-14 (17.07.2012 to 16.01.2014).
ii) ii) His ACR was not updated till 2015-16.
iii) iii) His available ACRs were not recorded up to three levels i.e. (a) Reporting Officer (b) Reviewing Officer and (c) Approving Officer.
iv) iv) Details of moveable and immoveable property were not updated by the candidate. Since the applicant's ACRs for the last ten years were not available or complete in all respects, the Committee did not agree to recommend the name of the applicant.
The Respondent further stated in the written statement that for the year 2016 also, though his name was considered by the Screening Committee in its 8 meeting held on 18.04.2017, but the Committee did not find him eligible for recommendation on the ground that the Reviewing Authority Sri Kamal Kishore Son has recorded his remark also for the period when he was not the Director of Agriculture and his vigilance clearance was not received.
10. It is contended by the applicant that the plea for rejection is not tenable in the eye of law as similar set of ACRs in which Mr. K.K. Sone, Director, Agriculture was the Reviewing Authority was taken into account when the applicant's name was recommended for the vacancy of the year 2013 and 2014. Interview letter dated 11.12.2014 & 27.10.2015 is enclosed as Annexure-A to his counter affidavit. It is further submitted that on the basis of the said ACRs in which Mr. K.K. Sone was the Reviewing Authority, such plea was never taken. Case of Sri Jata Shankar Choudhary was also reviewed by Sri K.K. Sone for the period when he was not posted as Director Agriculture. The name of Sri Jata Shankar Choudhary along with the respondent no. 1 was recommended by the Agriculture Department in the year 2014, but no one was selected and inducted into IAS. Objection was never raised, so far as the competency of the Reporting or Reviewing Authority is concerned. Therefore, deviation from past practice in this case is illegal, improper, arbitrary & discriminatory as also violation of Article 14 & 16 of the Constitution of India. It is submitted that name of Dr. Subhash Singh, Joint Director, Agriculture was recommended by the Department Screening Committee in the year 2016, 2017 and 2018 and his ACRs for the period from 13.02.2014 to 31.03.2014 and 01.04.2014 to 31.03.2015 was written by one Sri Fanindra. Nath Tripathi, Joint Director, Agriculture, Ranchi as Reporting officer, who was not posted as Joint Director, Agriculture, Government of Jharkhand at that period and his tenure was only from 21.03.2015 to 17.03.2016.
The ACRs of Dr. Subhash Singh for the period from 01.04.2013 to 12.02.2014, 13.02.2014 to 31.03.2014 & 01.04.2014 to 31.03.2015 was reviewed by Sri Jata Shankar Chaudhary when he was not the Director of Agriculture. The tenure of Sri Jata Shankar Chaudhary was from 01.04.2015 to 18.04.2017 which will be evident from the list of Director, Agriculture. Apart from that, ACRs of Sri Jata Shankar Chaudhary was also reviewed by Sri K.K. Sone for the period when he was not the Director, Agriculture. Along with the respondent no. 1, name of Sri Jata Shankar Chaudhary was recommended by the Agriculture Department in 2014 and he was selected and inducted into IAS Cadre and objection was never raised in their case. It is his 9 case that the department cannot take the different decisions/ set of pleas for different years that too for the same ACRs of the same and similarly situated persons as has been done in the case of this respondent. So far as the plea that the available ACRs of the respondent is not recorded up to the three level i.e Reporting Officer, Reviewing Officer and Accepting Officer, it was specifically stated that it was their own admission that vide notification dated 06.01.2017 for the year 2016-17, first time they introduced three level systems viz Reporting/Reviewing/Accepting but before that ACRs were in General Form and it is duly recorded against the name of Dr. Subhash Singh whose name was recommended by the Reporting authority i.e. Respondent No. 3 in the Screening Committee meeting held on 18.04.2017. It will be evident that ACRs by three levels were not required before 06.01.2017.
Admittedly, names of two eligible candidates were to be recommended, but purposely only one name viz. Dr. Subhash Singh were recommended in place of two candidates.
Mr. K.K. Sone, Director reviewed the ACRs on 31.12.2012, 18.12.2012 and 16.01.2013 in between the period 20.07.2012 to 16.10.2014 when he was holding the post of Director. As such, it is legal, proper and valid. This respondent had no role in it. If there are any laches on the part of the authority concerned, this respondent cannot be punished or penalized and they cannot take the plea of their own fault if. Reliance has been placed on the case of Kusheshwar Prasad Singh versus State of Bihar and others [(2007) 11 SCC 447].
11. It is submitted that for the Selection against the vacancy of 2017, his application in prescribed proforma with relevant documents were received on 21.03.2018 but this time also, his name was not been recommended on the same plea. He therefore moved before the learned CAT in OA No. 963/2018. By an order dated 30.11.2018 of learned CAT, the concerned respondents have been directed that any selection against the notification dated 13.02.2018 will be subject to the outcome of this O.A. Therefore, in terms of the interim order dated 30.11.2018 passed in OA no. 963 of 2018 vide notification dated 18 th Jan 2019, select list 2017 of Non- State Civil service officers namely Dr. Madhav Sharan Singh and Sri Prabhat Kumar have been recommended subject to outcome of OA 963 of 2018 filed by this Respondent.
12. Based on this submission, it has been contended that the impugned order dated 20.11.2020 is legal, proper and valid and has been passed after 10 considering the proposition of law as also counter affidavit filed by the parties and the rejoinder thereto. As such, it was the statutory duty of the Respondent / petitioner herein to implement that specific order and direction within 31.12.2017. They have purposely not sent the name of this petitioner within the specified period. Consequently, no appointment has been made against the vacancy for the year 2016.
Inspite of the specific direction by Hon'ble CAT and as also the direction dated 27.11.2020 issued by the Under Secretary to the Government of Jharkhand, State was sitting tight over the matter to make the claim of this Respondent infructuous.
It is contended that when after repeated representation, his case was not considered and no selection Committee meeting was held for preparation of selection list of 2016, the petitioner filed a contempt petition bearing C.P. no. 28/2017. By an order dated 16.02.2018, another chance was given to the Respondent no. 3 to comply the order of the Tribunal within a period of four weeks from that day but they have not complied the order till date.
It is further contended that after the impugned order dated 20.11.2017, this petitioner State did not move before this Hon'ble Court immediately. They moved before this Hon'ble Court in W.P (S) no. 531 of 2018 in March 2018.
On 17.05.2018 the writ petition was adjourned for three weeks for filing counter affidavit and it was ordered that no coercive steps should be taken against the petitioner.
Even though the impugned order was never stayed, the petitioner purposely sat over the matter. They did not consider the case of the Respondents even against the subsequent vacancies which has caused serious prejudice to him and he has been put to irreparable injury.
13. Be it noted here that the learned Tribunal had by order dated 13.10.2017 refused to grant any interim relief for keeping one post reserved for the petitioner for selection in the IAS Cadre against the Notification dated 13.02.2017.
14. We have given anxious consideration to the rival contention of the parties. We have also gone through the relevant provisions of law relating to the recruitment to the Indian Administrative Service and in particular to Non- State Civil Service Category.
15. It may not be out of place to mention that this Court had the occasion to examine the provisions relating to recruitment to Non-State Civil Service Category of IAS cadre for the vacancy of 2002 in the case of The State of 11 Jharkhand & others versus the Union of India and others [W.P(C) No. 2464 of 2006]. The applicant Arun had approached the learned Tribunal in O.A. No. 221 of 2001 being aggrieved by the action of the Respondent in not taking proper action for considering his case for appointment to the I.A.S in accordance with I.A.S (Appointment by Selection) Regulations, 1997 (hereinafter referred to as the "Regulation of 1997"). The applicant had, during pendency of the said O.A, filed Misc. Application No. 90/2002 seeking direction upon the Government of India and the State Government to get vacancies of 2002 for Non-State Civil Service Category notified and to complete the exercise for appointment by 31st December, 2002 as per the mandate of 1997 Regulations. Learned Tribunal had, in that instance, vide order dated 13th December, 2002 directed the Government of India, the State Government and UPSC to ensure that vacancies for 2002 for Non-State Civil Service Category be determined immediately and the process for sending the names be completed well within the time by 31st December, 2002. It was further observed by the Tribunal that in case time limit is not adhered to, vacancies for the year 2002 may not be allowed to lapse. Consequently, one vacancy was notified for Non-State Civil Service Category quota of Jharkhand by the Government of India for the year 2002. The applicant's case therein were not recommended by the State relying upon the resolution declaring equivalence issued by the Government of Jharkhand dated 17 th January, 2003 and 5th May, 2003. The matter travelled to this Court in the Writ Petition (Civil) No. 2464 of 2006 as the State of Jharkhand became aggrieved by the order of learned CAT dated 13th January, 2006 passed by learned CAT in O.A. No. 221/2001.
16. In these background facts, learned Coordinate Bench of this Court presided over by Hon'ble Mr. Justice, M.Y. Eqbal (as His Lordship then was) proceeded to examine the statutory position as regards the All India Services Act, 1951, the All India Service (Recruitment) Rules, 1954 and Indian Administrative Service (Appointment by Selection) Regulations, 1997 which provide for appointment to IAS cadre from Non-State Civil Service Category. We may profitably reproduce the opinion of the learned Court on the scheme of All India Services Act, 1951, the Rules, 1954 and Regulation of 1997 as contained at paragraph nos. 9 to 16 of the judgment.
"9. Before deciding the issue involved in this writ petition, I would first like to refer some of the relevant provisions of law relating to recruitment in the Indian Administrative Service. The All India Services Act, 1951 was enacted to regulate the recruitment and the conditions of service of persons appointed to all India Services 12 common to the Union and the State. Section 3 of the aforesaid Act confers power to the Central Government to make rule after consultation with the Governments of the States concerned for the regulation of recruitment and the condition of service of persons appointed, to all India Services. By All India Service (Amendment) Act, 1975, a new sub-section (1-A) was inserted in Section 3 to the Act. For better appreciation Section 3 of the Act reproduced herein below:
"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 condition 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 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.
(2) Every rule made by the Central Government under this section and every regulation made under or in pursuance of any such rule, shall be laid, as soon as may be after such rule or regulation is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in such rule or regulation or both Houses agree that such rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation."
10. In exercise of power conferred by Section 3 of the Act, the Central Government framed rules called the Indian Administrative Service (Recruitment) Rules, 1954. Rule 4 of the said rules lays down the method and procedure for recruitment to all India Service. Rule 4 of the said rules reads as under:
"4. Method of recruitment to the Service.--(l) Recruitment to the Service after the commencement of these rules, shall he by the following methods, namely:
(a) by a competitive examination;
(aa) [* * *1
(b) by promotion of substantive member of a State Civil Service;
(c) by selection, in special cases from amongst 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.
(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 particularly period of recruitment shall be determined by 13 the Central Government in consultation with the Commission and the State Government concerned.
(b) the number of persons to be recruited by each method shall be determined on each occasion by the Central Government in consultation with the State Government concerned..] Provided that where any such vacancy or vacancies relate to a State Cadre or a Joint Cadre the State Government in consultation with the Commission. (3) Notwithstanding anything contained in sub-rule (I), if in the opinion of the Central Government the exigencies of the Service so require, the Central Government may, after consultation with the State Governments 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.
11. Rule 6 of the said rules provides that all appointments to the service after the commencement of these rules shall be made by the Central Government and no such appointment shall be made except after recruitment by one of the methods specified in Rule 4.
12. Rule 8 of the said rules, which is relevant for the instant case, provides, inter alia, the procedure for recruitment by promotion or selection for appointment to the State and Joint Cadre. Rule 8 of the said rules reads as under:
"8. Recruitment by promotion or selection for appointment to State and Joint Cadre.- (1) The Central Government may, on the recommendations 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, to the Service substantive members of a State from time to time, make recruit persons by promotion from amongst the State Civil Service. (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, alter consultation with the State Governments 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 substantive capacity.] (3) (a) Where a vacancy occurs in a State Cadre which is to be filled under the 'provision of this rule, the vacancy shall be filled by promotion of a member of the State Civil Service or, as the case may be, by selection of any other officer serving in connection with the affairs of that State.-
(b) Where a vacancy occurs in a Joint Cadre which is to be filled under the provisions of this rule, the vacancy shall, subject to any agreement in this behalf be filled by promotion of a member of the State Civil Service of any of the States constituting the group or as the case may be, by selection of any other officer serving in connection with the affairs of any such State.
13. Rule 9 of the said rules provides that the number of persons to be recruited under Rule 8 in any State or group of States shall not, at any time, exceed 33 and 1/3 per cent of the number of senior posts under the State Government, Central deputation reserve, State deputation reserve and the training reserve in relation to the State or to the group of States. Proviso to Rule 9 states that the 14 number of persons recruited under sub-rule (2) of Rule 8 shall not at any time exceed 15% of the number of persons recruited under Rule 8.
14. The Central Government made regulations called the Indian Administrative Service (Appointment by Selection ) Regulation, 1956 on the recommendation of the State Government and the Union Public Service Commission for recruitment to All India Services, any person of outstanding ability and merit serving in connection with the affairs of the State, who is not a member of State Civil Service. Regulation 3 laid down the eligibility and mode of selection and appointment to the State Service. The said Regulation, 1956 was substituted by another Regulation called the Indian Administrative Service (Appointment by Selection) Regulation, 1997. Regulation 3 provides that Central Government in consultation with the State Government concerned shall determine the number of vacancies for which recruitment may be made under these Regulations each year. However, the number of vacancies shall not exceed the number of substantive vacancies, as on the first day of January of the year. Regulation 4 of the said Regulation of 1997 provides that State Government shall send proposals for considerations to the committee and Regulation 5 speaks about duty of the committee. Regulation 4 reads as under:
"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 the 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 Government shall not consider the case of a person who, having being 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."
15. Regulation 5, inter alia, provides that 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 for appointment to the service. It further provides that suitability of a person for appointment to the service shall be determined by scrutiny of Service records and personal interview. According to Regulation 6 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. Under Regulation 7 the Commission shall consider the list prepared by the Committee, the observations, if any, of the Central Government and State Government concerned may 15 approve the list with amendments, if any. Regulation 8 provides that appointment of persons who are included in the select list shall be made by the Central Governmental within a period of sixty days.
16. From reading of the relevant provisions of the Act, Rules and the Regulation referred to and quoted herein above, it is manifestly clear that the Act, Rule and Regulation of 1997 provides for recruitment to the I.A.S from Non-SCS. The provision of Regulation 1997 are in pari material with the earlier Regulation of 1956. As per Regulation-4 of 1997 Regulation persons belonging to the Non-SCS is required to fulfill three criteria, i.e. he or she should be of outstanding merit and eligibility, holds a gazette post in a substantive capacity and 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 on any post which has been declared equivalent of the post of Deputy Collector in the State Civil Services."
17. Learned Court after examining the contention of the aggrieved petitioner-State as regards the retrospectivity of the resolution of Government of Jharkhand dated 17.01.2003 and 05.05.2003 and the judicial precedents on this subject, the opinion of learned author F.A.R Bennion on Statutory Interpretation (Fifth Edition) as also the celebrated judgment of the Apex Court in the case of L. Chandra Kumar Versus Union of India & others (1997) 3 SCC 261 upheld the orders of learned CAT.
18. It may not be out of place to mention that the said applicant Arun was finally appointed to the IAS cadre against the Non-State Civil Service vacancy of 2002 in the year 2012. The exposition of law on apportionment to Non-SCS category of IAS Cadre in the case of State of Jharkhand and others (supra), have a bearing on the case of the parties herein as it also relates to selection to IAS from the Non-SCS Category.
19. From the conspectus of facts and narration of events taken note of in the preceding paragraphs, it appears that the Statutory mandate under Regulation, 1997 for notifying the vacancies of a particular year to Non-State Civil Services Category for appointment to the IAS cadre and completing the selection process by the end of that year to which the vacancy relates, has not been consistently followed by the Statutory Authorities including the Government of India, DOP&T, State of Jharkhand as also UPSC, the recommending body. The vacancies of the years 2016, 2017 and 2018 to the Non-SCS category of IAS Cadre for the State of Jharkhand have been notified in the subsequent years respectively. The vacancy for the year 2014 has been notified on 1st April 2015, the vacancies for the year 2016 have been notified on 03.02.2017 and vacancies for the year 2017 have been notified on 31.01.2018. Similarly the 3 vacancies of Non SCS quota for 2018 have been notified on 12th February 2019. It is also 16 evident that the selection process could not be completed by the end of 31st December of the relevant year relating to the said vacancy. The present case relates to the claim of the applicant for being recommended for the vacancy of the year 2016 which got notified on 03.02.2017. The applicant had approached this Court in W.P(S) No. 3486/2017 for consideration of his case for the vacancy of the year 2015`. However, on liberty being granted by the learned writ court vide its judgment dated 13.09.2017, the applicant approached the learned CAT in the instant O.A. No. 051/00165/17 seeking consideration of his case for appointment to the IAS cadre against Non-State Civil Service for vacancy of the year 2016 which by then, had been notified on 03.02.2017 i.e., after 31.12.2016. The State Government undertook the exercise of calling for the names from the concerned department. The Department of Agriculture i.e., Parent Department of the applicant though considered the names of nine such officers but chose to recommend the name of only one Dr. Subhash Singh, Joint Director, Agriculture, whereas the case of the applicant was not recommended. The reason for non-recommendation of the applicant being not up-to-date clearance from the Vigilance and Lokayukta; on the ACR for the year 2010-14 of the applicant, Shri K.K. Sone had recorded his remarks as Reviewing Authority, whereas he held that post only for the period 17.07.2012 to 16.01.2014. It appears that the case of the applicant was earlier recommended with same ACR for the vacancies of 2013 and 2014 by the Department Level Screening Committee. Applicant has taken this point also to question the decision of the Departmental Level Committee meeting held on 18.04.2017. Learned Tribunal did not approve the grounds of rejection as taken note above primarily for the reason that the process of recording of ACR is internal to the Administrative Authority on which the applicant had no control. It observed that it was the duty of the Administrative Authority to ensure that well before the meeting, the clearance report of all the officers are obtained from the concerned authority. It also observed that his Reporting Officer had given outstanding remarks for the concerned year and that Shree K.K. Sone had not enhanced the remark. Therefore, this minor discrepancy could be ignored. Learned Tribunal also dismissed the aspersion cast by the State counsel on the applicant, so far as remarks by the Reviewing Officer is concerned. Taking note of the fact that only one name had been recommended by the Department Level Screening Committee against two names called for by the State Government and that one slot was available, a direction was issued for the ends of justice upon Agriculture Department Screening Committee to convene a meeting well 17 before the dead line set by the Personnel Department to consider the eligible candidates including the applicant for one slot available by the department.
20. The process of selection to Non-State Civil Service Category was running in delay every year as we have already taken note of in the foregoing paragraphs. As per the statutory mandate under the Regulations of 1997 delineated by this Court in the case of State of Jharkhand and others versus The Union of India and others in W.P(C) No. 2464 of 2006, the relevant date for reckoning the eligibility of Non-I.A.S Officer is the first day of January of a particular year in which vacancy arises. As per the Regulation-3, determination of vacancies is to be made by the Central Government in consultation with the State Government concerned for which recruitment may be made under the Regulations of 1997 each year. The number of vacancies shall not exceed the number of substantive vacancies as on the first day of the January of the year in which the meeting to make the selection is held. Regulation-4 prescribes eligibility criteria for the Officers not belonging to the State Civil Service but serving in connection with the affairs of the State whose names could be recommended by the State Government for consideration of the Committee. Committee under definition clause 2(a) of the Regulations means the Committee as constituted under Regulation 3 of the Indian Administrative Service (Appointment by Promotion) Regulation, 1955. Regulation 5 prescribes that 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. The proviso to the Regulation 5 inter-alia stipulates three conditions when no list for the year in question shall be prepared. Regulation-5 is quoted hereunder:
"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:
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 18 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) of Rule 8 read with provision 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."
As per sub clause (c) of proviso to the Regulation 5, 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 in a year, in the facts and circumstances of each case, no list for the year in question shall be prepared. Regulation 6, 7 and 8 provide for further procedure leading up to the appointment of the candidates recommended from the select list. Regulation 9 contains the power of the Central Government not to appoint. In the present case, the learned Tribunal directed the Department Level Committee to consider the names of the eligible candidates including the applicant well before the deadline i.e. 31.12.2017 for the vacancies of the year 2016, which were notified on 03.02.2017. The fact remains that the Department Level Screening committee after obtaining the opinion of the Personnel Department and the Law Department chose to challenge the order of the learned Tribunal and expressed its inability to recommend the name of the applicant in its meeting held on 29.12.2017. The petitioner State has sought to justify the reasons for non-recommendation of the case of the applicant on the basis of his ACR and non-clearance from Vigilance / Lokayukta. Petitioner State have taken a plea of mistake of fact in making recommendation of the applicant by the Departmental Level Screening Committee for the vacancy of earlier year 2013 and 2015 on an erroneous understanding of the recording of the ACR. In the entire gamut of facts, legal provisions and the stand of the parties, the question required to be answered is, whether the findings of the learned Tribunal were proper in the eye of law or not?
21. It is trite to say that recording of ACRs is in the domain of the administrative authorities over which an employee has no control. The Department Level Committee or the State Level Screening Committee are high level committees ordained with the task of assessing the merits of the respective candidates for the purposes of their promotion. The Apex Court in the case of Nutan Arvind (Smt.) versus. Union of India and Another [1996 (2) SCC 488] had the occasion to observe on this aspect of the matter in a case 19 concerning promotion of employees on the basis of consideration of confidential reports by the Departmental Promotion Committee on their merits. A plea was taken by the applicant that one K and not M who had reviewed the performance of the applicant, was the officer competent to do so and write the applicant's confidentials. The Apex Court however, observed that it cannot go into that question. It was for the D.P.C. to consider at the time when the assessment of the respective candidates is made. When a high level committee had considered the respective merits of the candidates, assessing the grading and considered their cases for promotion, the Court cannot sit over the assessment made by the D.P.C. as an Appellate Authority. The D.P.C would come to its own conclusion on the basis of review by an officer and whether he is competent or not to write the confidential is for them to decide and call for the report from the proper officer. If it had done that exercise and found the applicant not fit for promotion, the Court did not find any manifest error calling for interference. The opinion of the Apex Court at para 6 of the judgment is quoted hereunder:
"6. The DPC which is a high-level committee, considered the merits of the respective candidates and the appellant, though considered, was not promoted. It is contended by learned counsel for the appellant that one K.S. Rao was the officer at the relevant time to review the performance of the appellant whereas in fact one Menon had reviewed it. The latter was not competent to review the performance of the appellant and to write the confidentials. We are afraid we cannot go into that question. It is for the DPC to consider at the time when the assessments of the respective candidates is made. When a high-level committee had considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, this Court cannot sit over the assessment made by the DPC as an appellate authority. The DPC would come to its own conclusion on the basis of review by an officer and whether he is or is not competent to write the confidentials is for them to decide and call for report from the proper officer. It had done that exercise and found the appellant not fit for promotion. Thus we do not find any manifest error of law for interference."
Similar view has been expressed by the Apex Court in the case of Union Public Service Commission Versus Arun Kumar Sharma and others [2015 (12) SCC 600] after referring to the precedents on the subject. The opinion of the Apex Court at Para-14 & 15 of the report wherein the Hon'ble Supreme Court refused to review the recommendations made by the Selection Committee relying upon the earlier judgments rendered, is profitably quoted hereunder:
20"14. This Court referred to the additional affidavit dated 15-2-2005 filed on behalf of the appellant and observed: (K. Rajaiah case, SCC pp. 20-21, para 9) "9. We cannot also endorse the view taken by the High Court that consistent with the principle of fair play, the Selection Committee ought to have recorded reasons while giving a lesser grading to the first respondent. The High Court relied on the decision of this Court in National Institute of Mental Health & Neuro Sciences v. K. Kalyana Raman. Far from supporting the view taken by the High Court, the said decision laid down the proposition that the function of the Selection Committee being administrative in nature, it is under no obligation to record the reasons for its decision when there is no rule or regulation obligating the Selection Committee to record the reasons. This Court then observed: (SCC p. 485, para 7) '[E]ven the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R.S. Dass v. Union of India.....' In the next paragraph, the learned Judges indicated as to what is expected of the Selection Committee, in the following words:
(SCC p. 485, para 8) '[W]e may state at the outset that giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The "fairness" or "fair procedure" in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on record to suggest that the Selection Committee did anything to the contrary.' That being the legal position, the Court should not have faulted the so-called down gradation of the first respondent for one of the years. Legally speaking, the term 'downgradation' is an inappropriate expression. The power to classify as 'outstanding', 'very good', 'good' and 'unfit' is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State Government authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large guided by the classification adopted by the State Government but, for good reasons, the Selection Committee can evolve its own classification which may be at variance with the gradation given in the ACRs. That is what has been done in the instant case in respect of the year 1993-1994. Such classification is within the prerogative of the Selection Committee and no reasons need be recorded, though it is desirable that in a case of gradation at variance with that of the State Government, it would be desirable to record reasons. But having regard to the nature of the function and the power confided to the Selection Committee under Regulation 5(4), it is not a legal requirement that reasons should be recorded for classifying an officer at variance with the State Government's decision. (emphasis supplied)
15. The same issue was considered in M.V. Thimmaiah v. UPSC in the context of promotion to the All India Administrative Services.
While refusing to review the recommendations made by the 21 Selection Committee, this Court referred to a number of precedents including the judgments in R.S. Dass v. Union of India, Anil Katiyar v. Union of India and observed: (M.V. Thimmaiah case, SCC pp. 138-39, para 36) "36. Therefore, in view of a catena of cases, courts normally do not sit as a court of appeal to assess ACRs and much less the Tribunal can be given this power to constitute an independent Selection Committee over the statutory Selection Committee. The guidelines have already been given by the Commission as to how ACRs to be assessed and how the marking has to be made. These guidelines take care of the proper scrutiny and not only by the Selection Committee but also the views of the State Government are obtained and ultimately the Commission after scrutiny prepares the final list which is sent to the Central Government for appointment. There also it is not binding on the Central Government to appoint all the persons as recommended and the Central Government can withhold the appointment of some persons so mentioned in the select list for reasons recorded. Therefore, if the assessment of ACRs in respect of Shri S. Daya Shankar and Shri R. Ramapriya should have been made as 'outstanding' or 'very good' it is within the domain of the Selection Committee and we cannot sit as a court of appeal to assess whether Shri R. Ramapriya has been rightly assessed or Shri Daya Shankar has been wrongly assessed. The overall assessment of ACRs of both the officers were taken; one was found to be 'outstanding' and the second one was found to be 'very good'. This assessment cannot be made subject of court's or Tribunal's scrutiny unless actuated by mala fide."
The Apex Court has also taken note of the opinion rendered in the case of UPSC versus K. Rajaiah and others [2005 (10) SCC 15] which held that the Selection Committee being administrative in nature, is under no obligation to record the reasons for its decision when there is no rule or regulation obligating the selection committee to record the reasons. Even the principles of natural justice do not require an administrative authority or a selection committee or examiner to record reasons for selection / non-selection of a person in the absence of statutory requirement. The Court further took note of the observations made in the case of K. Rajaiah (Supra) that giving of reasons for decision is different from, and the principle distinct from the requirement of procedural fairness. The procedural fairness is the main requirement in an administrative action. The fairness of fair procedure in the administrative action ought to be observed. The selection committee cannot be in exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration.
22. In the present case, the Department Level Committee cannot be said to have been guided by extraneous or irrelevant consideration. Procedural fairness as is seen was observed since candidature of nine candidates including the 22 applicant were considered, though the Departmental Level Committee had reasons for not recommending the name of the applicant. If the case of the applicant was earlier recommended for the year 2013 and 2014 by the Department Level Committee, that alone would not justify the stand of the applicant that even if the Department Level Committee had duly observed the requirement of procedural fairness, its decision on that score could be faulted and subjected to scrutiny under judicial review. The learned Tribunal therefore, appears to have exceeded in its jurisdiction while commenting on the reasons for non-recommendation made by the Department Level Screening Committee. As it appears, the recruitment exercise could not be completed by the end of the year 2017 against the vacancies of 2016 notified by the Government of India- DOP&T on 03.02.2017. The learned Tribunal had itself rejected the interim prayer of the petitioner to keep one post of Non-SCS category of I.A.S cadre for the year 2016 reserved. By virtue of the power conferred under sub clause
(c) to proviso of regulation 5, the UPSC has vide its letter dated 03.01.2018 declared that it is not practicable to hold the meeting of the Selection Committee for the select list of 2016 for selection of Non-SCS Officers for appointment to the IAS Cadre of Jharkhand. No challenge has been made to the said order which was brought on record during pendency of this writ petition.
23. Having held as above, we do not find any merit in the contention of the applicant / Respondent no.1 that since the officer appointed against the vacancies of 2017 has retired and that lapsed vacancy of 2016 has been carried forward to the year 2017, case of the applicant can be considered against the vacancy of 2016. The vacancy does not exist and neither has been revived by operation of any law or order of the Court.. We, therefore, do not approve of the reasons recorded by the learned Tribunal. The impugned order dated 20.11.2017 passed by the learned Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi in OA/051/00165/17 is set aside. Writ petition is accordingly allowed.
(Aparesh Kumar Singh, J) (Deepak Roshan, J) Ranjeet/