Karnataka High Court
Smt K S Latha Kumari vs Union Of India on 8 February, 2018
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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WPs No.1252-1256/2018
& WPs No.1332-1334/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY 2018
PRESENT
THE HON'BLE MR.H.G.RAMESH
R
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
WRIT PETITIONS NO.1252-1256/2018 &
WRIT PETITIONS NO.1332-1334/2018 (S-CAT)
BETWEEN:
1. SMT K.S.LATHA KUMARI
W/O SRI T.RUDRAPPA
AGED ABOUT 42 YEARS
WORKING AS SECRETARY
STATE ELECTION COMMISSION
CUNNINGHAM ROAD
BANGALORE-52
2. SRI GOPALAKRISHNA H.N.
S/O LATE NARAYANA GOWDA
AGED ABOUT 43 YEARS
PRIVATE SECRETARY TO URBAN
DEVELOPMENT MINISTER
VIKAS SOUDHA
BENGALURU-01
3. P.VASANTHA KUMAR
S/O LATE SRI PUTTAMADAIAH
AGED ABOUT 43 YEARS
CAO, MEDICAL EDUCATION DEPARTMENT
ANANDRAO CIRCLE, BANGALORE-01
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WPs No.1252-1256/2018
& WPs No.1332-1334/2018
4. MEENA NAGARAJ C.N.
W/O SRI ARJUN
AGED ABOUT 44 YEARS
DIRECTOR, DIRECTORATE OF STATE
TREASURY, VIDHANA SOUDHA
BANGALORE-01
5. AKRAM PASHA
S/O NANNE JAN
AGED ABOUT 48 YEARS
DIRECTOR, DIRECTORATE OF MINORITIES
V.V.TOWER, 20TH FLOOR
AMBEDKAR VEEDHI
BANGALORE-01
6. KAVITHA S. MANNAKERI
W/O SRI MALLIKARJUN PATIL
AGED ABOUT 42 YEARS
SECRETARY, KARNATAKA STATE WOMEN
COMMISSION, NO.107, CAUVERY BHAVAN
KHB BUILDING, BANGALORE-09
7. SHIVASHANKARA N
S/O SRI NINGE GOWDA
AGED ABOUT 43 YEARS
PRIVATE SECRETARY TO BENGALURU
DEVELOPMENT MINISTER, III FLOOR
VIDHANA SOUDHA
BANGALORE-01
8. K.LEELAVATHY
W/O V.RAMACHANDRA
AGED ABOUT 50 YEARS
JOINT DIRECTOR (ADMIN)
OFFICE OF THE COMMISSIONER OF
ANIMAL HUSBANDRY AND VETERINARY
SCIENCE, V.V.TOWER, AMBEDKAR VEEDHI
BANGALORE-01 ...PETITIONERS
(BY SRI JAYAKUMAR S. PATIL, SENIOR ADVOCATE FOR
SRI RAMESH K.L, ADVOCATE)
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WPs No.1252-1256/2018
& WPs No.1332-1334/2018
AND:
1. UNION OF INDIA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF PERSONNEL &
TRAINING, MINISTRY OF PERSONNEL,
PUBLIC GREIVANCES AND PENSIONS
NORTH BLOCK, CENTRAL SECRETARIAT
SARDAR PATEL BHAVAN, PARLIAMENT STREET
SANSAD MARG, NEW DELHI-01
2. UNION PUBLIC SERVICE COMMISSION
REPRESENTED BY ITS SECRETARY
DHOLPUR HOUSE, SHAHAJAHAN ROAD
NEW DELHI-110 069
3. STATE OF KARNATAKA
REPRESENTED BY IT'S THE CHIEF SECRETARY
VIDHANA SOUDHA
BENGALURU-560 001
4. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS
VIDHANA SOUDHA
BENGALURU-560 001
5. M.V.CHANDRAKANTH
S/O LATE VENKATASHAMI
AGED ABOUT 49 YEARS
WAITING FOR POSTING
DEPARTMENT OF PERSONNEL AND
ADMINISTRATIVE REFORMS
VIDHANA SOUDHA
BENGALURU-560 001 ...RESPONDENTS
(BY SRI H.R.SHOWRI, ADVOCATE FOR R1;
SRI A.S.PONNANNA, AGA A/W SMT PRATHIMA HONNAPURA,
AGA FOR R3 AND R4;
SRI YOGESH NAIK FOR SRI S.G.PANDIT, ADVOCATES FOR R2;
SRI M.S.BHAGWAT, ADVOCATE FOR C/R5)
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WPs No.1252-1256/2018
& WPs No.1332-1334/2018
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 15.12.2017 SO FAR AS IT RELATES TO
O.A.NO.170/00237/2017 PASSED BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL AT ANNEXURE-H AND ETC.
THESE WRIT PETITIONS, HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.01.2018, COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY,
P.S.DINESH KUMAR J., PRONOUNCED THE FOLLOWING:-
ORDER
1. Petitioners in these writ petitions have challenged common order dated 15.12.2017 passed by the Central Administrative Tribunal, Bangalore Bench, Bangalore ('Tribunal' for short) in Original Application No.170/01007/2016 and connected applications, so far as it relates to O.A.No.170/00237/2017.
2. Heard Shri Jayakumar S.Patil, learned Senior Counsel for the petitioners and Shri H.R.Showri, learned Counsel for respondent No.1; Shri Yogesh Naik, learned Counsel for respondent No.2; Shri A.S.Ponnanna, Additional Advocate General for respondents No.3 and 4 and Shri M.S.Bhagwat, learned Counsel for caveator/respondent No.5. 5
WPs No.1252-1256/2018 & WPs No.1332-1334/2018
3. Briefly stated the facts of the case are, vide select list dated 29.11.2005 issued by the Karnataka Public Service Commission, Bengaluru ('KPSC' for short), 5th respondent was provisionally selected to the post of Deputy Superintendent of Police. In the same list, one Sangappa was selected as an Assistant Commissioner under 2A category. Respondent No.5 challenged Sangappa's Caste Certificate before the Commissioner, Backward Classes Department & Appellate Authority for Verification of Caste and Income Certificate. By an order dated 23.01.2006, the appellate authority set-aside Sangappa's Caste Certificate. Sangappa, unsuccessfully challenged the said order in Writ Petition No.1449/2006 before the Dharwad Bench of this Court. On appeal, an order of status quo has been passed by a Division Bench of this Court in Writ Appeal No.100388/2017.
4. After Sangappa's Caste Certificate was set aside by Appellate Authority, respondent No.5 submitted a representation to the Government to consider his case for 6 WPs No.1252-1256/2018 & WPs No.1332-1334/2018 appointment as an Assistant Commissioner under 2A category. However, he was appointed as a Deputy Superintendent of Police on 31.01.2006 and subsequently promoted as Superintendent of Police (Non-IPS) on 04.07.2013. Nonetheless, respondent No.5 was pursuing the matter with the Government for his appointment in the Karnataka Administrative Service ('KAS' for short). By an order dated 24.03.2017, he was appointed in the KAS Group-A (Junior Scale) against a supernumerary post with effect from 01.02.2006, subject to outcome of final orders in Writ Petition No.1449/2006.
5. On 19.12.2016, State Government submitted a proposal containing names of 56 eligible State Civil Service ('SCS' for short) Officers to the Union Public Service Commission ('UPSC' for short) to convene a meeting of Selection Committee for preparation of select list for promotion of SCS Officers to Indian Administrative Service, in respect of vacancies for the year 2015. The said proposal did not contain 5th respondent's name. Accordingly, he filed 7 WPs No.1252-1256/2018 & WPs No.1332-1334/2018 the instant application before the Tribunal. It was considered along with two other applications and disposed of by the common impugned order. In the case of 5th respondent, the Tribunal has held as follows:-
"OA No.170/00237/2017
26. The applicant claims promotion to IAS in terms of Serial Number 14 and 15 under the post of Assistant Commissioner adjacent to that of Shri.G.Jagadeesha.
27. Apparently he secured 1151 marks and Shri Sangappa secured 1152 marks in 2A category. But it was found out later that Shri Sangappa may belong to Lingayath Community and have obtained a position falsely representing that he is a Kuruba.
28. Since a writ appeal is also said to be filed, we had examined the judgment of the Hon'ble High Court of Karnataka with anxious eyes. We are impressed by the clarity of its findings. We also find that even though Shri Sangappa is still in service, the committee has chosen to exclude him from consideration and he does not seem to have challenged it.
29. The State Government, on the other hand, had given back all that he had lost to Shri M.V.Chandrakanth. But the only objection put forth by the State Government is that in the position of Assistant Commissioner he has not secured effective placement. But then, that is not his fault and he cannot be prejudiced for fault of another coupled with the inability of the Government to detect the lacunae in this.
30. Therefore we hold that the applicant Shri M.V.Chandrakanth is eligible to be put adjacent to Shri G.Jagadeesha who appears to be Serial No.30. Necessarily there must be a review committee meeting after holding that the last in the list Serial No.34 to be kept out of consideration for the time being. If the vacancy position is reconsidered, she may also be put in the zone of consideration. Needless to say that the 8 WPs No.1252-1256/2018 & WPs No.1332-1334/2018 applicant will have the benefit of retrospective consideration."
(emphasis supplied)
6. Based on the above findings, the Tribunal passed following order:-
"(2) OA No.170/00237/2017 stands allowed. A review committee meeting will be held as expeditiously as possible to consider him adjacent to Shri G. Jagadeesha in Serial No.30, if necessary, by keeping out Serial No.34 or 33 as the case may be as even now her selection is only provisional. Her case will be dealt with separately."
7. Petitioners, feeling aggrieved by the impugned order passed by the Tribunal have presented these writ petitions.
8. The principal contention urged by Shri Jayakumar S. Patil, learned Senior Counsel appearing for the petitioners is that, the Tribunal has exceeded in it's jurisdiction in directing the respondents to hold a Review Committee Meeting. Amplifying this contention, he submitted, that unless 5th respondent's name is proposed by the State Government, Tribunal could not have issued any directions for consideration of 5th respondent's case. He urged that, at any rate, Tribunal could not have substituted it's opinion 9 WPs No.1252-1256/2018 & WPs No.1332-1334/2018 with regard to 5th respondent's eligibility for appointment in the Indian Administrative Service.
9. Shri Bhagwat, learned Counsel appearing for contesting 5th respondent, opposing the writ petitions, urged following contentions:
• petitioners No.2 to 8 were not parties in the application filed by the 5th respondent before the Tribunal. Therefore, they cannot maintain these writ petitions;
• the State Government having appointed 5th respondent in the KAS cadre, chose not to include his name in the proposal submitted to the UPSC; and • the Tribunal having taken note of the injustice caused to the 5th respondent, has rightly directed for consideration of his case.
10. In the light of rival contentions of the parties, the point that falls for consideration of this Court is:
"Whether the Tribunal could have directed consideration of 5th respondent's case by a Review Committee?"10
WPs No.1252-1256/2018 & WPs No.1332-1334/2018
11. Incontrovertible facts of this case are, 5th respondent was appointed as Deputy Superintendent of Police on 31.01.2006. He has been appointed in the KAS Group-A (Junior Scale) against a supernumerary post on 24.03.2017. Defending their action, the State Government have averred;
• that declaration of 5th respondent's probationary period is still under examination; and • that in the absence of fixation of inter se seniority and declaration of probationary period, it is too premature to consider 5th respondent's case for promotion to Indian Administrative Service.
12. The State Government have precisely averred thus in their statement of objections filed before the Tribunal:
"7. xxxxxxxx. The contention of the Applicant is that his seniority has to be fixed in the cadre of KAS (Junior Scale) with effect from 01.02.2006 and that he has to be promoted to the post of Senior Scale with retrospective effect from 17.09.2011 with reference to his batchmates. In this connection, it is submitted that as per the cabinet decision, the Applicant has been appointed to KAS vide order dated: 24.03.2017 against the supernumerary post created in KAS Cadre with effect from 01.02.2006 with all consequential benefits 11 WPs No.1252-1256/2018 & WPs No.1332-1334/2018 and subject to certain conditions stipulated therein. The matter regarding declaration of probation period is still under examination of these respondents. Therefore, in the absence of fixation of inter-se seniority and declaration of probation period, it is too premature for the Applicant to contend that he has to be considered for promotion to IAS along with other eligible candidates. So much so, the contention of the Applicant that he has to be promoted to KAS Senior Scale with retrospective date itself is far-fetched at this stage and therefore, the same is liable to be rejected."
(emphasis supplied)
13. Appointment of State Civil Service Officers into the Indian Administrative Service is governed by the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 ('Regulations' for short). In terms thereof, a Selection Committee shall be constituted under Regulation No.3, which shall prepare the list of suitable officers for promotion under Regulation No.5. A careful perusal of the said Regulation indicates that, an SCS Officer is required to be substantive in State Civil Service and completed not less than eight years of continuous service. Relevant portion of Regulation No.5, reads as follows:- 12
WPs No.1252-1256/2018 & WPs No.1332-1334/2018 "5.PREPARATION OF A LIST OF SUITABLE OFFICERS :-
5(1) Each Committee shall ordinarily meet every 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. The number of members of the State Civil Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held, in the posts available for them under Rule 9 of the Recruitment Rules. The date and venue of the meeting of the Committee to make the selection shall be determined by the Commission;
xxxx Provided also that the Committee shall not consider the case of a member of the State Civil Service unless on the first day of January of the year for which the Select List is prepared, he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government."
(emphasis supplied) xxxx"
14. The State Government have taken a categorical stand that, the 5th respondent was appointed against a supernumerary post in the KAS on 24.03.2017 and declaration of his probationary period is still under examination. Thus, conspectus of facts on record, prima facie indicate that the 5th respondent does not fulfill the 13 WPs No.1252-1256/2018 & WPs No.1332-1334/2018 qualification of holding a substantive post in State Civil Service continuously for eight years.
15. Regulations further indicate that, the list prepared by the Selection Committee formed under Regulation No.5 shall be forwarded to the UPSC by the State Government with the relevant service records of SCS Officers included in the list along with observations of the State Government. Under Regulation No.7, the UPSC, after considering the list prepared by the Committee shall accord their approval after making necessary changes, if any, required. Thereafter, under Regulation No.9, the Central Government shall appoint such selected candidates in the order in which names of SCS Officers appear in the select list.
16. In the instant case, the Committee has selected the following 34 candidates:
Sl. Name of the Officer (Shri/Ms.) Date of Birth No.
1. B.C.Sateesha 21.05.1974
2. H.Basavarajendra 26.06.1967
3. H.N.Gopal Krishna 16.05.1973
4. Dr.N.Shiva Shankara 20.03.1971
5. Dr.Arundathi Chandrashekar 09.07.1969
6. Dr.M.R.Ravi (SC) 04.07.1966
7. P.N.Ravindra 31.12.1971 14 WPs No.1252-1256/2018 & WPs No.1332-1334/2018
8. K.Jyothi 20.07.1970
9. C.N.Meena Nagaraj 07.01.1973
10. Akram Pasha 01.06.1969
11. K.Leelavathy 18.05.1966
12. P.Vasantha Kumar (SC) 04.02.1973
13. Karee Gowda 21.07.1970
14. Shivananda Kapashi 20.10.1967
15. Gangu Bai Ramesh Mankar (SC) 01.07.1972
16. Kavitha S.Mannikeri 20.07.1974
17. R.S.Peedapaiah (ST) 23.03.1962
18. G.C.Vrushabendra Murthy 18.04.1960
19. Dr.K.Harish Kumar 07.05.1973
20. M.R.Ravi Kumar 07.05.1972
21. M.B.Rajesh Gowda 25.11.1970
22. Mahantesh Bilagi 27.03.1974
23. K.N.Ramesh 15.05.1970
24. Patil Yalagouda Shivanagouda 22.07.1972
25. S.Honnamba 22.09.1972
26. R.Latha 16.06.1974
27. K.Srinivas (SC) 31.12.1972
28. M.S.Archana 19.02.1972
29. K.Dayananda 26.03.1976
30. G.Jagadeesha 04.06.1974
31. K.M.Janaki (SC) 03.07.1971
32. C.Sathyabhama 01.06.1976
33. Rajamma A.Chowda Reddy 02.08.1965
34. K.S.Latha Kumari (ST) 22.10.1975
17. The Tribunal has recorded that the State Government had given back to 5th respondent, what he had apparently lost, by appointing him in the supernumerary post. It has further recorded that the 5th respondent cannot be prejudiced for 'no fault of his'. In furtherance of these findings, the Tribunal, has issued a direction to consider the 15 WPs No.1252-1256/2018 & WPs No.1332-1334/2018 case of 5th respondent 'adjacent' to the case of G.Jagadeesha at Sl.No.30.
18. It is indubitable that, appointment of SCS Officers to Indian Administrative Service is governed by the 'Regulations'. Unless, the name of an SCS Officer is found in the list prepared as per Regulation No.5 by the Selection Committee, his case cannot be considered by the UPSC, while preparing the 'select list' under Regulation No.7. Therefore, unquestionably, it shall be the prerogative of the Committee constituted under Regulation No.3 to prepare a list of eligible State Civil Service Officers for appointment in the Indian Administrative Service.
19. It is settled that, Courts do not sit as an appellate authority to assess the suitability of SCS Officers. It may be relevant to extract following passage from the judgment of the Supreme Court of India in the case of M.V. Thimmaiah and others v. Union Public Service Commission and others reported in (2008) 2 SCC 119:
16
WPs No.1252-1256/2018 & WPs No.1332-1334/2018 "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."
20. In the circumstances, we are of the considered view that, Tribunal's direction to consider 5th respondent's case 'adjacent' to that of G.Jagadeesha amounts to substitution of it's opinion with regard to his suitability for appointment by promotion into the Indian Administrative Service, resulting in transgression into Executive's arena. This is impermissible.
21. So far as objections raised by Shri Bhagwat, with regard to maintainability of these writ petitions by petitioners No.2 to 8 are concerned, we may record that, even according to him, Writ Petition filed on behalf of the 1st petitioner, namely, Smt. K.S.Latha Kumari, is maintainable. Although, the names of other petitioners are found in 17 WPs No.1252-1256/2018 & WPs No.1332-1334/2018 connected cases before the Tribunal, which have been disposed of by the common order impugned in these writ petitions, we deem it un-necessary to deal with the said question as writ petition filed by Smt.K.S.Latha Kumari is indisputably maintainable.
22. In the light of above discussion, writ petition filed by Smt.K.S.Latha Kumari merits consideration and eminently deserves to be allowed. Hence, the following order:
(i) Writ Petition No.1252/2018 filed by Smt.K.S.Latha Kumari, is allowed;
(ii) common Order dated 15.12.2017, so far as it relates to the directions issued in Original Application No.170/00237/2017, is set aside; and
(iii) in the light of order at (ii) above, Writ Petitions No.1253-1256/2018 & Writ Petitions No.1332-1334/2018 do not survive for consideration and are accordingly disposed of.18
WPs No.1252-1256/2018 & WPs No.1332-1334/2018
23. In view of disposal of the writ petitions, the pending interlocutory application does not survive for consideration and it is accordingly disposed of.
Writ Petition No.1252/2018 stands allowed. Writ Petitions No.1253-1256/2018 and Writ Petitions No.1332-1334/2018 stand disposed of.
We make no order as to costs.
Sd/-
ACTING CHIEF JUSTICE Sd/-
JUDGE cp*