Central Administrative Tribunal - Chandigarh
Jarnail Singh, Assistant Excise And ... vs Union Of India (Uoi) And Ors. on 3 February, 2006
Equivalent citations: 2007(1)SLJ101(CAT)
ORDER Jasbir S. Dhaliwal, Member (J)
1. The above three O.As. are being taken up for disposal by this common order as these are based on same cause of action and relate to the same selection and appointment to I.A.S., against two vacancies for the years 1998 and 1999, from amongst non-State Civil Service Officers, belonging to the State of Punjab. After going through the pleadings of all the three cases and hearing the Id. Counsel for the parties, we think it appropriate to extract and mention facts and the background leading to the filing of these cases as litigation for appointment against these two vacancies, including two of the applicants, namely Shri Jarnail Singh and Mrs. H.K. Bahia, has been going on since 1998. Incidentally, one of us Jasbir S. Dhaliwal, Judicial Member) had the occasion of dealing with most of the cases which were filed before Chandigarh Bench of the Central Administrative Tribunal.
2. As per the general directions issued by Government of India from time to time, State of Punjab had started advance action for filling up the vacancies pertaining to non-SCS Officers for induction into I.A.S. Two vacancies, one each for 1998 and 1999, were anticipated on such information received from Govt. of India. For selection against the vacancy for 1998. State of Punjab issued after dated 7.5.1998 inviting nominations from various Heads of Departments Financial Commissioners Principal Secretaries/Administrative Secretaries etc. and the other vacancy, for the year 1999, was circulated vide letter dated 15.6.1999. On the recommendations of Heads of Departments, twenty-two names were received for the 1998 vacancy out of which five were recommended by the State in its proposal; namely (1) Dr. B.M. Mahajan (2) Mrs. H.K. Bahia (applicant) (3) Sh. Jarnail Singh (applicant) (4) Dr. Paramjit Singh (applicant) and (5) Shri Gursharan Singh Wason. For the 1999 vacancy, recommendations of twenty officers were received from various Heads of Departments and five names, that of (1) Shri Sukhdev Singh Sidhu (2) Shri D.S. Grewal (respondent) (3) Dr. Rajesh Sharma (4) Shri D.S. Cheema and (5) Shri G.S. Randhawa, were recommended in view of Regulation 4 of 1997 Regulations. However, the State of Punjab sent a consolidated proposal to U.P.S.C, containing all these ten names, to U.P.S.C. on 7th October, 1999
3. Before the process of selection could be gone through, two O.As., (i) O.A. No. 210-CH of 1999, titled P.C.S. Officers' Association v. Union of India and Ors. and (ii) O.A. No. 1044-CH of 1999, titled Harkesh Sigh Sidhu v. Union of India and Ors., were filed before this Tribunal. A Bench of this Tribunal, by order dated 12.11.1999 and, subsequently, on an application of the present applicant Mrs. H.K. Bahia, on 23.12.1999, ordered stay of process of selection for appointment to I.A.S. from amongst non-S.C.S. cadre officers. Another O.A. No. 1204-CH of 1999 was filed by non-S.C.S. Officers, titled Dr. Sukhcharan Singh Brar v. Union of India and Ors., raising identical questions of law and facts. In this O.A., Shri S.S. Brar had questioned the eligibility of present applicants Shri Jarnail Singh, Shri G.S. Wason, Shri D.S. Cheema and Shri G.S. Randhawa on the grounds that they did not fulfill the requisite experience of 8 years on a Class I post, as required under the Regulations, for such appointment on the cut off date. Since orders dated 12.11.1999 and 23.12.1999 had already been passed, restraining UPSC from going ahead with the process of selection, it was observed in the case of Shri S.S. Brar that the parties of this case will also be bound by orders dated 23.12.1999.
4. The above said two interim orders of this Tribunal were challenged by way of a C.W.P. (No. 945-CAT of 2000) in the Hon'ble High Court of Punjab and Haryana. Initially, on 6.3.2000, the High Court passed an order staying the operation of the above said two interim orders of C.A.T. with directions to UPSC and the Punjab Govt. to go ahead with the process of selection and appointments. A request was, however, made in this order to the Hon'ble Chief Justice to place the legal issues in this C.W.P. before a Full Bench for future reference.
5. U.P.S.C, through its communication, sent to the State of Punjab, declared four officers, namely (1) Shri Jarnail Singh (applicant) (2) Shri G.S. Wason (3) Shri D.S. Cheema and (4) Shri G.S. Randhawa, as ineligible from amongst the consolidated proposal of ten officers on the grounds that they had not completed 8 years of continuous service in the State Govt. as on the cut off date. They required State of Punjab to substitute these ineligible officers by sending more names of eligible officers from amongst the available officers. This letter is dated 19.9.2001. State Govt. had written back to U.P.S.C. that they had sent a consolidated proposal and the Commission could adjudge their eligibility and, thereafter, their suitability from the said list only. The Commission, through another letter dated 26.12.2001 conveyed to the State Govt. that the Indian Administrative Service (Appointment by Selection) Regulations, 1997, applicable in this case, do not envisage consideration of ineligible officers. Consideration of ineligible officers could be contrary to the provisions of the selection Regulations and that they wanted the State Govt. to send full proposal of 10 names by withdrawing the names of four ineligible officers conveyed to them earlier.
6. In the C.W.P. pending before the Hon'ble High Court, above said, bearing. No. 945-CAT of 2000, UPSC filed CM. No. 11791 of 2002 in February 2002, praying that the Commission be allowed to convene the DPC after excluding the ineligible persons. It was stressed in this CM. emphatically that as per the selection regulations applicable, UPSC examines the eligibility of the officers whose names have been sent in the proposal by the State Government and, thereafter, submits the names of only eligible officers for consideration to the Selection Committee. Selection Committee would assess the suitability of such officers who are otherwise found to be eligible and this proposal has to be as per the Regulations and, thus, the proposed persons to be placed before the Selection Committee have to be eligible as on 1.1.1999 as per regulations (and as on 1.1.2001 as per UPSC communication '?)
7. On such repeated communications, received from UPSC the State Govt., vide letter dated 22.7.2002, withdrew the names of the above-mentioned four ineligible officers and apprised the UPSC about it. They sent the names of four officers namely:
1. Shri V.N. Mathur,
2. Shri Harbhajan Singh,
3. Shri V.K. Sharma (respondent) and
4. Shri K.S. Palne.
The Punjab Government also filed an affidavit in the High Court in C.W.P. No. 945-CAT of 2000 on 16.8.2002 mentioning about withdrawal of the names of those ineligible officers. The C.W.P. was allowed ultimately on 21.4.2003 by quashing the impugned orders dated 12.11.1999 and 23.12.1999 in the following terms:
In the result, the writ petitions are allowed. The impugned orders are quashed. The Tribunal is directed to decide the original applications within a period of 4 months from the date of receipt of copy of this order.
Before parting with the case, we deem it proper to observe that even though this Court had stayed operation of the impugned orders as early as on 6.3.2000, the State Government and the Commission has not finalized the selection for recruitment to Indian Administrative Service from amongst non-State Civil Service Officers. In response to the directive given by us, Shri Salil Sagar, Additional Advocate General, after seeking instruction from the Competent Authority, gave out that within 3 weeks the State Government will send all the relevant papers, data alongwith appropriate proposal to the Commission for selection of non-State Civil Service Officers for recruitment to Indian Administrative Service. Shri Ajay Lamba stated that the Commission will finalise the process of selection and make its recommendations within next 6 weeks.
It is, however, made clear that the appointments, if any, made hereinafter on the basis of selection impugned before the Tribunal shall remain stayed subject to the final decision of the original applications and this fact shall be incorporated in the order of appointment.
Sd/- G.S. SINGHVI, JUDGE Sd/- J.S. NARANG, JUDGE Sd/- KIRAN ANAND LALL, JUDGE 21.4.2003 Since now the respondents were required to go ahead with the process of selection in view of directions of the Hon'ble High Court, Punjab Government filed CM. No. 27173 of 2003 in the High Court seeking extension of time for calling fresh recommendations for consideration of the Selection Committee meeting to be held in 2004. High Court asked for details of the steps already taken by the State and the Commission, up to 24.11.2003, as before that an undertaking had been given to the Court for completing the process. On 23.1.2004, the Hon'ble High Court issued the following directions:
that the officers who were eligible and entitled to be considered for promotion as early as in 1999, have not got their dues as per the rules.
The State Govt. and UPSC were directed to take corrective measures by 30th January, 2004.
8. The State Government sent its revised proposal of only eligible officers by dropping the four persons, above-mentioned, who had been found to be ineligible by the UPSC and substituting their names by the four names, namely: Shri V.N. Mathur, Shri Harbhajan Singh, Shri V.K. Sharma (respondent) and Shri K.S. Palne. The revised proposal of the State Govt., as per Regulation 4, is dated 12.2.2002. Against this proposal, O.As. No. 25, 27, 105 and 106-PB of 2004 were filed on which short notices were issued for a particular date. However, on 13.2.2004, Counsel for UPSC produced a copy of letter dated 12.2.2004 received by him that UPSC intended to interview the 10 officers, including the applicants in these four O.As. (including those four ineligible officers), as recommended by the State Govt. on 7.10.1999. These O.As. were disposed of as infructuous with the expectation that respondents shall be bound by what had been stated in letter dated 12.2.2004. These were disposed of on 13.2.2004/14.2.2004, even though the date fixed for presence, after serving of notice, was 10.3.2004. The State Govt. had not yet put in appearance. It was mentioned in these four O.As. that the meeting of the Selection Committee was fixed for 16.2.2004 for which they were not being called.
9. Since we were shown record produced by UPSC and it is clear from the pleadings of these O.As. as well, we record that for 16.2.2004, candidates were called to appear before the Selection Committee, including the four ineligible officers who had been so declared by the UPSC earlier and also the four substituted eligible candidates whose names had been sent by the State Govt. by substituting the names of ineligible officers. We record that the State representatives in the meeting of the UPSC had taken a stand that only persons who were eligible as per the amended proposal of the State Govt. could be interviewed whereas the UPSC had taken a stand that they would interview the originally sponsored 10 names, including four ineligible candidates. The meeting was postponed due to difference of opinion with the proposal to get legal advice on this aspect. The State Govt., through its letter dated 23.2.2004, had conveyed all these facts of their insistence on interview of only eligible 10 officers as per the amended proposal of the State Government. They also requested for fixing a fresh date of interview for implementing the directions of the High Court. Through their letter dated 26.2.2004, addressed to the Commission, they requested for incorporating the view point of the representatives of the State in the proceedings of the Selection Committee for the record, including the proceedings held on 16.2.2004.
10. Meanwhile, Hon'ble Full Bench of the High Court, which had decided the CWP, directed the State Govt. to explain reasons for not sending the proceedings of the Selection Committee by the State Chief Secretary and also to explain the circumstances of substituting new names in the proposal. The State Govt. filed CM. No. 4003/2004 explaining the position as per the facts mentioned above and also the circumstances leading to substitution of the names of ineligible officers with those of eligible officers and the UPSC, thereafter, fixed meeting of the Selection Committee for 24.4.2004 in which they sent letters of interview only to those 10 candidates whose names had been sent by the State Govt. with letter dated 7.10.1999, including those four ineligible persons and letters were not sent to the persons whose names had been sent through the amended proposal as substituting the ineligible persons. Out of those four substituted officers, three persons, namely Shri V.N. Mathur, Shri Harbhajan Singh and Shri V.K. Sharma filed two O.As., No. 374 and 373-CH of 2004. Present applicant, Shri K.S. Palne, who was called for interview for 16.2.2004, and not called for 24.4.2004, chose not to file any O.A. After considering the prayer made by the applicants in these two O.As., a Division Bench of this Tribunal directed UPSC to allow the applicants of these two O.As. to participate in the selection process /interview to be held on 24.4.2004 on provisional basis. The following part of order dated 23.4.2004, passed in these two O.As. by way of interim relief, is being reproduced as reference has been made . again and again to this interlocutory order by both sides:
3. The present applicants plead that they were earlier called for attending the selection through letters dated 13.2.2004 to be held by the UPSC on 16.2.2004. However, now through a letter dated 24.4.04, issued about two days back, they have come to know that the meeting has been fixed on 24.4.2004 by the UPSC and those ineligible persons have been called to participate in the selection whereas the present applicants have not been called. They plead that names of these applicants are on the State List submitted to UPSC after finding that private respondents in these cases were ineligible. In case selection for the two posts is considered from the list of persons which includes ineligible persons and ultimately the UPSC also so concludes, it will not be a fair selection and will, in fact, be a selection for two posts against the rules as the requisite number of valid candidates will not be before the UPSC. Secondly, it is argued that these applicants will suffer irreparable damage in their career if they are not considered at all even though their names have been recommended by the State Government by substitution with the names of ineligible persons.
4. We find a prima facie case in favour of the applicants at this stage. Firstly, the balance of convenience would also indicate that no harm would be done to any one if UPSC finally comes to the conclusion that some of the persons whose names were sent in the proposal in 1999 are, in fact, ineligible and if by consideration of names of the applicants the number of persons to be considered is in accordance with the rules. Secondly, if applicants are not given a chance to participate in the selection, there is a chance of their suffering irreparable damage.
5. Mr. H.C. Arora, Counsel for respondents has been asked to get instructions from the UOI and UPSC while the State of Punjab may file their reply/ short reply within 10 days. Meanwhile we direct the UPSC, respondent in this case, to allow these applicants to participate in the selection from the non-SCS officers for the two posts for which meeting is to be held on 24.4.2004 on provisional basis. Respondents may go ahead with the process of selection but may not actually appoint the persons on the basis of such selection, till further orders.
Applicants in the above said two O.As. were, thus, allowed to appear in the selection process along with ineligible candidates and name of one Shri V.K. Sharma was placed on the select panel. Since the O.As. were still pending, the present applicants, namely Mrs. H.K. Bahia, Shri Jarnail Singh and Shri K.S. Palne had become parties to the same. Since selection had already been done by UPSC and as per the interim orders appointment orders were not being issued, the contesting parties wanted the matter to be disposed of and result to be declared but hearing in the case could not be done for one reason or the other. The present applicant Shri K.S. Palne filed O.A. No. 410-CH of 2004 on 4.5.2004 seeking similar relief as claimed by applicants in O.A. Nos. 373 and 374 of 2004 but interim relief was not granted to him as a selection had already taken place.
11. Present respondents, namely Shri D.S. Grewal and V.K. Sharma had been selected in the selection held on 24.4.2004 against the said two vacancies and State Govt. issued letter dated 16.8.2004 asking for their willingness to be appointed to I.A.S. and for termination of their lien from the State service in case of their such appointment. When O.A. No. 373-CH of 2004 came up for hearing on 20.9.2004, applicant V.K. Sharma, appeared in person with the Counsel and submitted that he, along with Shri D.S. Grewal, had been placed on the panel of selected candidates and they had received letter dated 16.8.2004. He sought permission to withdraw the O.A. as not pressed. His O.A. was, thus, dismissed as not pressed in view of the statement made by him in person in presence of his Counsel while the other O.A. by Shri V.N. Mathur and Shri Harbhajan Singh was dismissed as infructuous as they had already participated in the selection process and had not been placed on the select panel. O.A. No. 410-CH of 2004 filed by the present applicant Shri K.S. Palne was dismissed as withdrawn on 20.9.2004 with permission to file a fresh O.A. A notification was issued on 20.9.2004 appointing both the private respondents Shri V.K. Sharma and Shri D.S. Grewal to I.A.S. making it subject to final outcome of various O.As. C.W.Ps., including O.A. No. 373-CH of 2004.
12. It is in this background that the present O.As. have been filed challenging the appointment of Mr. V.K. Sharma and Shri D.S. Grewal with the submission that entire procedure has been carried out with a view to favour these two selected candidates. It has been pleaded that their names were included in consideration zone by replacing four persons at the eleventh hour. Both of them have been appointed against two vacancies said to be for the year 1999 whereas there was only one vacancy in 1999 and the other was for 1998. It is alleged that respondents have clubbed the vacancies of 1998 and 1999. Shri V.K. Sharma did not figure in the original list sent by the State of Punjab (even though Shri D.S. Grewal was included in that). It is alleged in these O.As. that the Selection Committee has acted in a mechanical manner. Once name of Shri V.K. Sharma was not mentioned, there was no question of considering his service record while service record of Shri D.S. Grewal is not of outstanding character as compared to the record of the applicants. Selection has been done by following pick and choose policy. As per Regulations applicable, only 10 persons could have been considered by the Selection Committee, whereas, 13 persons have been considered who participated in the selection process. This selection being against the Regulations, the same should be treated as vitiated. It is claimed that Mrs. H.K. Bahia being senior, had at one point of time written ACR of respondent Shri D.S. Grewal. She has better educational and administrative background, her work and conduct being appreciated by the superiors from time to time as compared to Shri Grewal. It is further pleaded that in view of interim orders of the Tribunal dated 23.2.2004, as given in the two O.As. Nos. 373 and 374 of 2004, persons who were allowed to participate on provisional basis, were not to be appointed till further orders from the Tribunal. Thus, it is pleaded that Shri V.K. Sharma could not have been appointed by the respondents. O.A. No. 373 filed by Shri V.K. Sharma was withdrawn by him with ulterior intention to circumvent the order dated 23.4.2004. Since he was allowed to participate in the selection process on provisional basis, the O.A. having been withdrawn, the process qua him should be treated to have become non-est. Clubbing of vacancies is illegal as the respondents should have conducted the selection year-wise i.e., separately for 1998 and for 1999. Eligibility of the selected candidates was still open as it was yet to be adjudicated upon. In the case of Shri K.S. Palne it is pleaded that he was similarly placed like Shri V.K. Sharma, Shri Harbhajan Singh and Shri V.N. Mathur and non-consideration of his case by UPSC vitiates the selection.
13. At this stage, we would consider it necessary to give, in brief, the facts of these cases individually, (i) Shri Jarnail Singh, applicant in O.A. No. 856-PB of 2004 is an Assistant Excise and Taxation Commissioner in the State of Punjab who, through his O.A., has challenged selection and appointment of respondents 4 and 5 to the Indian Administrative Service from the panel sent for the vacancies for the year 1999, allegedly in a totally illegal and arbitrary manner, ignoring the claim of the applicant and some other officers whose names were recommended for the vacancy of 1998. Pleads that he was appointed as an Excise and Taxation Officer, which post was later on declared as a Class I post vide Annexure A-3 dated 13.12.1994: was sent on deputation to U.T., Chandigarh in 1988 where he was appointed as an Executive Magistrate in 1989; was promoted as Assistant Excise and Taxation Commissioner by parent State, which post, as a consequence of the lower of Excise and Taxation Officer being declared Class I, was also declared as a Class I post vide Annexure A-4. The State of Punjab, respondent No. 2, issued an order on 17.8.2001 (Annexure A-5) declaring all Group 'A' posts, which were previously known as Class I posts, to be equivalent to the post of Deputy Collector/Assistant Commissioner of Revenue for the purpose of induction into I.A.S. under I.A.S. (Appointment by Promotion) Regulations, 1977. Interestingly, Shri Jarnail Singh was never declared as holder of a Class I post which would make him eligible for I.A.S. and this declaration in his favour has come only on 17.8.2001, through Annexure A-5. (ii) In O.A. No. 857-CH of 2004, applicant - Smt. H.K. Bahia is presently working as Additional Registrar, Co-operative Societies, Punjab and is on the verge of retirement. Applicants 2 and 3 therein are working as Senior Medical Officers and claim to be holding Class I posts of PCMS-I w.e.f. 1.1.1986. Plead that, being eligible, their names were also recommended for consideration for appointment to I.A.S. against the two vacancies for the years 1998 and 1999. They have come to this Tribunal impleading Shri Dharamjit Singh Grewal, working in the office of Registrar, Co-operative Societies, Punjab and Shri V.K. Sharma, working as Addl. Director-cum-Controller, Department of Finance, Punjab, Chandigarh, as respondents 4 and 5 with the grievance that vide recommendations dated 24.4.2004 (Annexure A-l) the said respondents have been recommended by the Commission for appointment to I.A.S. (iii) Sh. K.S. Palne claims that, like Sh. V.K. Sharma, he was one amongst the four substituted names in the amended proposal sent by the State Government as per objections of U.P.S.C. Shri K.S. Palne, applicant in O.A. No. 855-CH of 2004, Additional Director, Co-operative Societies, Punjab now on deputation as Managing Director, Housfed, Punjab has impleaded Shri G.S. Randhawa, Shri D.S. Cheema and Shri V.K. Sharma as respondents 4, 5 and 6, respectively. He was appointed as Assistant Registrar, Co-operative Societies, Punjab on selection by PPSC in 1979, was promoted as Deputy Registrar, Co-operative Societies on 30.9.1988 which is a Class I post. He was further promoted as Joint Registrar, Co-operative Societies in July 1993 and as Additional Registrar in March 2001. He, thus, claims having rendered more than 10 years of service as a Class I Officer as on 1.1.1999. Claims that he is entitled to be considered by the respondents for appointment.
14. It is noticed that in contradiction to pleadings of Shri Jarnail Singh in his O.A., three persons in the case of Shri H.K. Bahia, after reproducing the relevant rules i.e., I.A.S. (Recruitment Rules), 1954 and Regulations of 1997, have taken pleas that for the category of non-SCS officers for their appointment to I.A.S. by selection, yearly panels are not required to be prepared. They plead that Govt. of India determines the vacancies from this category and through a letter dated 17.6.1999, ultimately, Govt. of India had determined two vacancies for the year 1999 (meaning thereby that initial proposal for one vacancy for 1998 and one for 1999 was, thus, dropped) (see Page 49 of the Paperbook in the case of Shri H.K. Bahia). State of Punjab, in their written statement, have also recognized this fact (at Page 90 of the said Paperbook). Shri K.S. Palne has taken very clear pleas that the State Govt., initially, wanted to favour some of its own men and had, thus, recommended four names, which were ineligible for the reason that they did not have requisite experience/ service of eight years in Class I service as on 1.1.1999 which was a statutory condition and, thus, the initial proposal was violative of the rules/regulations, and was arbitrary. He has given the details of those four persons by specifying that the post of Assistant Excise and Taxation Commission was Class-II till 15.6.1995 and was declared as Class I only by notification dated 15.6.1995 (copy of which is also on the file of Shri Jarnail Singh). Thus, it would indicate that those persons, including Shri Jarnail Singh, were not having the requisite length of service as on 1.1.1999 and rightly objected to by UPSC.
15. Respondents have filed their detail replies. Reference to the reply of UPSC will be made during the discussion part. The other respondents have taken a plea that Shri K.S. Palne, even after replacing the ineligible persons, as per the new proposal of the State Govt., had not presented himself for interview of his own before the Selection Committee even though he was called for 16.2.2004 by the UPSC and knew about the next date fixed for the interview. He has, thus, no cause of action to challenge the notification dated 20.9.2004. They deny that recommendation of name of Shri V.K. Sharma was motivated. They further plead that the issue relating to ineligibility of those four officers, initially recommended by the State Govt. was brought to the notice of the Hon'ble High Court through CM. No. 11791 of 2002, filed by the U.P.S.C. in C.W.P. No. 945-CAT/2002 in the case of Shri S.S. Siddu. Similarly, the inclusion of four additional officers, subsequently recommended by the State Govt., was in compliance to the directions of the High Court and this Tribunal. Shri V.K. Sharma pleads that his name was recommended for both the years i.e. 1998, as well as 1999, by the sponsoring authority. Name of Shri D.S.Grewal forms part of both the lists, the one initially sent and also the second, after dropping the names of ineligible officers. I.A.S. (Appointment by Selection) Regulations, 1997, apply to the case of the parties before this Court and, as per Regulation 3, the number of vacancies to be filled by selection of non-SCS officers of the State for appointment to I.A.S. is determined by the Central Government/ DOPT. Under proviso to Regulation 5, no meeting of the Committee shall be held and no list for the year in question shall be prepared in the circumstances mentioned therein, especially under Clause (c), where the Commission considers that it is not practicable to hold the meeting of the Selection Committee in the facts and circumstances of the case. They plead that if a Selection Committee meeting could not be held for a particular year, the Central Govt. re-determines the number of vacancies for the subsequent year. Unlike the provisions of I.A.S. (Appointment by Promotion) Regulations, 1955, there is no provision in the 1997 Regulations for preparing year-wise select lists if the Selection Committee meeting could not be held in a particular year for some valid reasons. They have mentioned judgments of Hon'ble Supreme Court to stress that applicants are substituting their own judgment to that of the High Powered Selection Committee (UPSC) with State Representatives, constituted under the statute while comparing the service record with that of Shri D.S. Grewal. Applicants are also ignoring the fact that overall selection was based on assessment of the service record as well as marks obtained in the interview. They plead that this Tribunal cannot sit in judgment or in appeal over the selection made by a High Powered Committee unless such selection is shown to be vitiated by malafides or arbitrariness. Applicants chose not to file any rejoinder.
16. We have heard the learned Counsel for the parties at length, spreading over a number of days, and have examined the material on these three files, alongwith the record produced by the respondents.
17. The applicants had prayed for interim relief against appointment/posting of the private respondents but the same was declined by a detailed order, dated 27.9.2004. Present applicants had challenged that interim order through C.W.P. No. 16216 of 2004, which was dismissed on 2.11.2004.
18. After considering the rival contentions raised on behalf of the parties, we formulate the following points/ issues for consideration:
(i) Whether there were two vacancies for non-SCS officers for induction into I.A.S. for the year 1999 or one vacancy each for the years 1998 and 1999?
(ii) Whether the four persons, declared to be ineligible by the UPSC, namely Shri Jarnail Singh (applicant), Shri G.S. Wason, Shri D.S. Cheema and Shri G.S. Randhawa, were eligible in terms of Recruitment Rules and appointment Regulations and whether any Court of Law ever declared them as eligible?
(iii) Whether the State Govt. was bound to substitute the ineligible officers by eligible officers, whose names had already been sent in the other list, sent by the respective departments, who could not fall within the short listed names in October 1999?
(iv) What is the legal effect of withdrawal of O.A. filed by the present respondent Shri V.K. Sharma?
(v) Whether withdrawal of O.A. by Shri V.K. Sharma can have the effect of conceding to the eligibility of the four persons, mentioned above, and whether it can operate as res judicata for the present proceedings?
(vi) Whether non-consideration of the name of Shri K.S. Palne vitiates the entire selection?
(vii) Whether the selection was based on some criteria consistent with the provisions of law?
(viii) Whether appointment of private respondents, Shri V.K. Sharma and Shri D.S. Grewal is legal and valid?
19. The above issues are considered as under:
Point No. (i) It is true that the State Government had, initially, started advance action for filling of one vacancy each for the years 1998 and 1999 from non-SCS category, as per instructions of the DOPT. However, the year of vacancy is the one in which proposal is sent to the UPSC for selection. Since Regulation 4 of the 1997 Regulations is relevant, we are reproducing the same below:
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 consideration of the Committee;
Provided also that the State 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 Regulations 9 of these regulations.
(Emphasis supplied) Besides this, it will not be out of place to make reference to the relevant rules which are I. A.S. (Recruitment Rules), 1954. Rule 4(c) gives power to the authority to make selection in a special case from amongst the persons who hold substantive gazetted post in connection with the affairs of the State, who were not members of the State Civil Service. Rule 4(2) gives the Method of Recruitment for the purpose of filling up any particular vacancy/ vacancies required to be filled up during any particular period of recruitment which "shall be determined by the Central Government in consultation with the Commission and the State Government." However, Clause 4(2)(b) is relevant and important for the present case, which is to be following effect:
4(2)(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.
Similarly, Regulation 8 is common for appointment by promotion and appointment by selection. Clause (2) refers that Central Government may, in special circumstances, on the recommendations of the State Government from time to time, make recruitment to the Service of any person of outstanding ability and merit who is not a member of the State Civil Service but is serving with the affairs of the State. Rule 9 clarifies that the quota of appointment by promotion is not to exceed 33 1/3% of the number of civil posts under the State Govt. under the Fixation of Cadre Strength Regulations, 1955 of I.A.S. and from the non-SCS category, their number shall not exceed 15% of the number of persons recruited under Rule 8. To us it is clear that by promotion, panels are to be prepared yearwise for the vacancies available in a particular year, whereas the persons from the non-SCS category are to be appointed in "special cases" or "in special circumstances" by determining the vacancies by the Central Government which is not to exceed 15%, as above mentioned. Reading of these provisions together and with harmonious construction to be given, the year of vacancy shall be relevant in reference to the year in which a proposal is sent by the State Government to the Central Government or when Central Government takes a decision by determining vacancy for a particular year from non-SCS category. This can, in no way, be referred to the year in which advance action may have been initiated by State Government by inviting names in any particular years or by considering there-requisites as per the rules. We are reminded of such opinion expressed by the Hon'ble Supreme Court in the case of Government of India v. G. Limbadri Rao AIR 2004 SC 4843. In this case, the question posed was as to whether the department had committed any illegality in not considering the case of officer for inclusion in the proposal sent to the UPSC for preparation of Select List for the year 2002 for appointment to I.A.S. on the grounds that he had attained the age of 54 years as on 1.1.2002. It was argued that age should have been considered as on 1.1.2001 when the proposal was initiated for preparation of Selection List for the year 2002. The Apex Court held that the interpretation put was not correct as eligibility of the officers is reckoned from 1st of January of the year in which Selection Committee meets and not the time when the proposal is initiated. In our opinion, the vacancies in the present case were determined by Union of India and conveyed through letter dated 17.6.1999 for two vacancies being earmarked for the year 1999. We find that this is the stand taken by UPSC also. Thus, the plea taken by Shri Jarnail Singh that there were vacancies for 1998 and 1999, is hereby rejected. His plea that respondents have adopted a policy of clubbing vacancies, is also found to be legally not tenable. Point No. 1 is, accordingly, answered.
Point No. (ii):
From the facts discussed above, it is abundantly clear that the four persons declared to be ineligible by the UPSC in their repeated communications, were found to have not completed 8 years of requisite service when considered with reference to the date of declaration of their posts to be equivalent to that of Deputy Collectors as per the Regulations. We notice that UPSC, starting with their first communication dated 19.9.1999, had been repeatedly informing the State Government that these four persons are ineligible on the grounds of not having requisite eight years of service on a Class I post with reference to the declaration of equivalence. As per the UPSC, they were not having such length of service as on 1.1.2001, which, in our opinion, should have been counted as on 1.1.1999. Yet, even on 1.1.2001 since they were not having requisite length of service, we fail to understand as to how could they be either considered eligible or as to how could they be considered by the UPSC for the said selection at all. We have already reproduced Regulation 4 of 1997 Regulations above and would like to add that the valid proposal is the proposal which is finally sent by the State Government which was minus those four ineligible persons with addition of the four persons including that of Shri V.K. Sharma. In fact, strictly reading Regulation 4 (supra), the Commission could not have considered a proposal which no longer existed or which was no longer valid after the names of those four persons had been duly dropped and substituted by the four eligible persons. In our humble opinion, the proposal is the one which is sent by the State Government and the Commission has neither the powers, nor jurisdiction to consider a proposal of their own by making a statement before the Tribunal or sending a letter dated 13.2.2004 in the O. As. filed by those ineligible persons claiming that they were eligible. The Commission has all the powers to consider eligibility/ ineligibility of the candidates sent, which part of the job they had already performed by informing the State Government that those four persons cannot be considered as they are not eligible as per the Rules and Regulations. Thereafter, they had no jurisdiction to say that they shall consider by allowing the ineligible person to participate in the selection as that did not form part of the State proposal. From the record produced, we find that the State Government duly asserted this point on 16.2.2004 when the selection was to be held and the meeting was postponed to 24.4.2004. Finding that UPSC was not recording their view point, they, through communication sent to the UPSC- stand shown to us, had reiterated these aspects that Commission can consider only the names of those persons who form part of the amended proposal. In our opinion, this also meets the objection of applicants that State Government could send five-times names of candidates of the vacancies i.e., as per proposal more than 10 names could not have been sent and Commission could not have examined more than 10 persons in the selection. Proposal, in fact, consisted of six names from the earlier list after dropping the names of four ineligible persons plus four names which substituted the earlier ineligible names. Allowing participation to those ineligible persons by the Commission is to be treated as non-est by holding that only 9 persons as per the State proposal, in terms of Regulation 4 (supra) were considered by the Commission. Participation of those four persons has to be legally ignored. The plea of applicants that Court cannot go into that question, to say the least, is ridiculous. Under the Rules, estoppel by act and conduct or by Court record can bar the parties from raising a particular plea if it has already been adjudicated upon. That cannot make persons who were otherwise legally ineligible, nor can that be a bar for a Court of Law for expressing its opinion that they were, in fact, not eligible once it is noticed that such declaration has not come in any of the cases which were filed before this Tribunal or before the Hon'ble High Court.
Point Nos. (iii) to (viii):
20. Now, the remaining points/issues i.e.(iii) to (viii), are being dealt with simultaneously, particularly because the points of discussion on the aspects relevant under those issues, are common and overlapping. It is the pleaded case of Jarnail Singh that notification in his case is dated 17.8.2001, Annexure A-5, which declared his Class I post equivalent to the post of Deputy Collector in the State Civil Service for the purpose of his eligibility for consideration for appointment to the I.A.S. This notification, besides being prospective, has come into existence much after the relevant cut-off date, which in this case was 1.1.1999. It can in no way make him eligible and UPSC were right in informing the State Government that he was ineligible. We also take note of the fact that after repeated letters sent by the Commission, the State Government deleted the names of those four officers through a decision conveyed through letter dated 22.7.2002, which stand has been taken by the State Government in their written reply and was never rebutted or challenged with success by Shri Jarnail Singh or other similarly placed persons like him. As mentioned above, after deletion of these four names, new four names had been substituted and, thus, their names did not form part of a proposal sent to the Commission. The O.A. filed by Shri Jarnail Singh, or persons similarly placed, never concluded, with any declaration by a competent Court of Law, that they were eligible and, thus, the letter produced by Counsel for UPSC cannot be treated as adjudication.
21. As to what is the effect of withdrawal of a case filed by Shri V.K. Sharma, which is one of the most contentious points in these O.As., we find that on 20.9.2004 he had withdrawn the O.A. in view of the changed circumstances as he had been informed that he stood selected to the IAS and had been asked to give his option through letter dated 16.8.2004 regarding termination of his lien from the State Service. It was an interim order in his own case which, possibly, was a hindrance in his actual appointment. Notification, appointing the private respondents, came not existence on 20.9.2004 and we fail to understand as to how it would fall to the ground automatically. Shri V.K. Sharma, alongwith others, was ordered to be considered by this Tribunal on provisional basis, with interim stay that his actual appointment may not be done till further orders. If UOI, on its own, issues a notification giving him appointment, that may only render them liable for action for commission of contempt of orders of a Court of Law but that in itself will not mean that the order passed by issuing of the notification, is either without jurisdiction or per se illegal. It shall be open to a Court of Law to consider its validity, as we are doing it now, and till such an order is declared to be illegal, it carries with it all the legal force of appointment.
22. At this point, we may mention that in the appointment notification, appointments of private respondents have been made subject to a number of C.W.Ps. and the O.As., including O.A. No. 373 and 373-CH of 2004. On the date of notification, most of these cases had either been concluded or had been finally decided, with judgments which have absolutely no adverse effect upon the appointments of the private respondents. No judgment has declared the selection of private respondents as illegal or has declared those four ineligible persons, including Shri Jarnail Singh, as eligible at any point of time. While deciding Writ Petition No. 945-CAT of 2000 on 21.4.2003, the Hon'ble High Court had, towards the end of the judgment, directed that appointments, if any, made on the basis of selections impugned before the Tribunal, shall remain stayed subject to the final decision of the original applications and this fact shall be incorporated in the orders of appointment. This order was amended by the Hon'ble High Court at the instance of one of the parties in C. W.P. No. 413-CAT/2000 through C.Ms. No. 9260 and 9261, moved by their Counsel, Mr. Puneet Bali, Advocate, who also happens to be a Counsel for the three applicants in the case of Smt. H.K. Bahia. The Hon'ble High Court had ordered deletion of the word 'stayed' from their orders dated 21.4.2003 by order dated 3.7.2004. Union of India considered the effect of this order of the Hon'ble High Court over the interim orders dated 23.4.2004, passed by this Tribunal in O.As. 373 -374-CH of 2004. The following noting was given by the Director (AIS) on 10.9.2004, which is considered to be not only relevant, but also valid:
4. The High Court order was further amended by the High Court, on an application filed before them on 03.07.2004, and the word "stayed" appearing in the above order was deleted. As will be seen, if the word "stayed" were to be deleted from the above order, a situation arises where in the High Court order can be interpreted as having allowed promotions. The only doubt that lingers is that the CAT, by a later order, passed on 23.4.2004 ordered that while selections can proceed, promotions cannot be made. The question whether the High Court were aware of the CAT order, and in such circumstances whether such an order could have been issued by them, and if issued whether such an order is judicially valid, naturally arises.
5. More recently, i.e., on 03rd July, 2004 this High Court have had occasion to dwell into the matter in C.M. Nos. 9260 and 9261 of 2004 in C.W.P. No. 413-CAT of 2000 filed by Shri Gursharan Singh Wasan. The common interim order dated 23.4.2004 passed by the Chandigarh Bench in O. A. No. 373/CH/2004 and O.A. No. 374/CH/2004 was also placed on record before them. By their order the High Court have, after taking note of the CAT orders, allowed the application before them. This in effect would mean that the CAT order restraining the Central Government from proceeding with appointments is no longer valid, and promotions can be effected.
6. In view of the position explained above, we may appoint two (2) non-SCS officers against vacancies for the year 1999 in the Punjab Cadre of IAS, subject to the final outcome of various petitions before the Tribunal and the writ petitions before the High Court impinging on the issue. Submitted for approval please.
In our opinion, Union of India committed no illegality or even contempt of Court in concluding that the order dated 3.7.2004 has been passed by the Hon'ble High Court after considering the interim orders of the Tribunal, passed in the case of Shri V.K. Sharma, respondent, and others. One could, thus, conclude that respondents were, in fact, allowed to make appointments as per the selection. At this juncture, it will not be out of place to mention that we have been shown the minutes of the meeting of the Selection Committee held on 24.4.2004 which are quite detailed and give all the background, as discussed above. In these also, they have taken note of ineligibility of those four officers, including Shri Jarnail Singh in Para 7.1 of the minutes, clearly mentioning that State Government had withdrawn their recommendations vide letter dated 22.7.2002 and vide letter dated 12.2.2004 by replacing those names with four eligible officers, including Shri V.K. Sharma. In Para 7.2 it has been recorded that due to difference of opinion on the list of officers to be considered, the Selection Committee could not transact any business on 16.2.2004.
23. With regard to as to what can be the effect of withdrawal of a case filed by Shri V.K. Sharma, in which he had obtained interim orders for his consideration after he was placed on the select panel, we observe that besides what has been discussed above, in his O.A. No findings were recorded either in favour or against any of the parties. Even though provisions of CPC are not strictly applicable to proceedings before this Tribunal, yet, some of the principles are sometimes applied, some of which are also enumerated under Section 22 of the Administrative Tribunals Act, 1985. One can be debarred from filing a second case on the same cause of action if one has abandoned a Civil Suit filed by him earlier without getting permission from the Court to file a fresh one. Similarly, a suit can abate or can be dismissed in default. Extending the principles of estoppel, some provisions have been enacted under the CPC barring such litigant from filing a second case i.e., seeking a remedy through a Court of Law but barring a remedy does not mean that a person has lost his all rights which were otherwise his, but were in dispute or were threatened by defendents in that case. Respondents have placed reliance on a judgment in the case of Jafarullah v. Kota Open University (Rajasthan) 1999(2) SCT 255, decided by Single Bench of Rajasthan High Court. In this case a person had obtained an interim order in a writ petition to fix a particular pay scale which was given to him in compliance to the interim orders of the Court. The writ petition was withdrawn. The University put him back to the original pay scale withdrawing the scale given to him under the interim orders. He filed a subsequent writ petition with the same relief which was rejected on the grounds that the writ petition is not maintainable as it amounts to abuse of process of Court. In this judgment the Court has nowhere held that he could not defend a particular litigation if it is subsequently filed for claiming his rights. In fact, respondents have not brought to our notice any relevant judgment which may hold that one would lose his rights to certain things merely because he files a suit and later on withdraws the same. For example, if a person 'A' is an owner of a house which is being threatened by some persons 'C and 'D' and protecting his rights in the house he files a suit and gets interim orders which give him right to carry on construction also. If he withdraws the suit, possibly, he cannot file a second suit against the same persons, but it will be preposterous to say that such withdrawal would have the effect of taking away the rights of ownership and the construction carried out by him automatically and that such withdrawal would make the persons 'C' and 'D' owners of the house belonging to the person 'A'. In case C and D file a case claiming certain rights, they shall have to succeed on their own merits by showing that they are, in fact, owners of the house or a part of it and that will not be a bar for the person 'A' to take defence about his own rights. High Court of Allahabad in Bejai Ragho Niwasji v. Tej Narain Lal AIR 1943 Allahabad 99, clearly took a view that a party whose suit had abated, had all the rights to defend his position in a subsequent suit filed against him. In the case of Shivashankar Prasad Sah v. Baikunth Nath Singh , where on an application by a judgment debtor, resisting the cause of action or the execution of the decree, was dismissed for default, was held to be not a final decision of the Court with regard to their respective rights. It was held that the same did not operate as res judicata and the judgment debtor could raise all the same objections regarding his own rights in a subsequent application filed by him. In the case of Santosh Kumar v. Nandalal Chakrapani , Full Bench had held that abatement of a suit did not either operate as res judicata or preclude the defence or extinguish the title of the legal representative of the deceased plaintiff to the subject matter of the suit. This Full Bench placed reliance on a number of earlier judgments. A Full Bench of the Hon'ble High Court of Punjab and Haryana also had the occasion to deal with such a plea in the case of Gajpat Singh v. Sudhan . While considering the provisions of CPC under Order 22 Rule 9, Order 9 Rule 9 and Order 23 Rule 1, the Court held that while legislating on the subject relating to dismissal of suits in default of hearing or on abatement or on the withdrawal of suits without the permission of the Court, the legislature did not think it proper to lay down in express terms that the unsuccessful plaintiff in the earlier suit shall be debarred to raise the same pleas as a defendant in any subsequent suit relating to the same subject matter. The Full Bench held that abatement (or withdrawal) of the suit does not deprive an unsuccessful plaintiff his rights. It merely debars him from suing again through a fresh suit on the same cause of action as the law of estoppel leaves the rights untouched, but bars the remedy. In view of such exposition of law, we are of the opinion that withdrawal of the O.A. by Shri V.K. Sharma can neither be taken to be estoppel or res judicata in defending the present O.A. In fact, such withdrawal did not have any effect on his appointment done by the Competent Authority which had the powers and the jurisdiction to issue the notification. Similarly, withdrawal of O.A. by him cannot be treated that Shri Jarnail Singh or persons similarly placed like him become automatically eligible. It can also not be taken to be admission of eligibility of Shri Jarnail Singh etc.
24. After having examined all the above mentioned aspects, we do not find any illegality committed in the notification appointing Shri V.K. Sharma and Shri D.S. Grewal. The repeated arguments that there was an interim stay and that O.A. stood withdrawn as filed by Shri V.K. Sharma, cannot make the notification illegal.
25. Ld. Counsel for the applicants also argues that there was no criteria adopted by the respondents in selection of the private respondents. UPSC has filed a detailed reply and also an additional affidavit of an officer of the UPSC wherein they have, in detail, given that under the rules, the criteria has already been fixed. Under Regulation 5 of 1979 Regulations, a list is prepared by officers of the Committee and suitability of persons for appointment is determined by scrutiny of the service record and personal interview. The Commission has adopted the criteria of distribution of marks for selection of non-SCS officers for appointment to the IAS. They have divided the total 100 marks into two parts i.e. 50% weightage or 50 marks are to be given on the basis of service record with particular reference to the ACRs for the five preceding years, and 50% or 50 marks are allocated to personal interview in. which they assess the overall personality of the candidate. The broad procedure applicable appointment by promotion Regulations is adopted here also by assessing the officers as 'Outstanding', 'Very Good', 'Good' or 'Unfit', on the basis of their service record which assessment is made independently by the Commission. The Committee could assign 10 marks for 'Outstanding', 8 marks for 'Very Good', 6 for 'Good' grading etc. In the interview the suitability is adjudged with reference to their knowledge and awareness of various topics, of which the officers to be recruited to IAS should be conversant with for performance of their duties. Their knowledge of the fields in which they have been working, knowledge of Regional/National/International issues and related matters, is also assessed. The Committee also keeps in mind the experience they have gained while working in various posts with the State Government and assesses their grasp on administrative techniques and their ability to deal with problems and challenges faced by a good administrator. They have mentioned that such criteria has been upheld by the High Court of Madras in a writ petition filed by one Shri K. Jeevannandan. They have mentioned that all the candidates were put through this process of selection in which the private respondents were adjudged as most suitable. Considering such pleas taken by the UPSC, the plea taken by applicants that there was no criteria at all, has to be rejected. There are no allegations of mala fides against any one due to which they would have rejected the applicants and selected the respondents by going out of the way. In any case, in repeated pronouncements by the Hon'ble Supreme Court, some of which are in the case of Dalpat Abba Sahib Solunke v. B.S. Mahajan , UPSC v. H.L. Dev and Ors. , Smt. Anil Katiar v. UOI and Ors. 1997(1) SLJ 145 (SC) : 1997(1) SLR 153, it has been held that Courts shall not interfere with the selections conducted by such high powered Committees, which in the present case happens to be UPSC, as the Tribunals cannot sit in judgment or in appeal for the selections made by such Selection Committees unless it is alleged and proved that selection is vitiated by malafides or arbitrariness. These elements are found missing in the present case.
26. We could hold that applicants in the case of Jarnail Singh and H.K. Bahia have in fact no case at all as they were duly considered alongwith others and were not empanelled. They only had a right of consideration at the most. They have not been able to make any legal grounds for challenging the selection and appointment of Shri V.K. Sharma and Shri D.S. Grewal, nor they have been able to show that there were either mala fides or arbitrariness in the said selection.
27. It is true that Shri K.S. Palne was similarly placed like Shri V.K. Sharma. He was called for interview for 16.2.2004. He knew that the next date of interview is 24.4.2004 and also knew that his colleagues from the same department are competing against him, including Shri H.K. Bahia and others, officers from the Co-operative Department. He did not come to the Court within time for getting interim relief based on his rights. The Court is not ready to accept the plea that he was not aware of the proceedings fixed for 24.4.2004 by the Selection Committee as a person aspiring appointment to I.A.S., who had already been called for interview on 16.2.2004, was to be definitely vigilant about the next date of the meeting. Smt. H.K. Bahia and Shri D.S. Grewal belong to the same department. He has come through the present case when the entire selection process is complete which process, in fact, started in the year 1998. If he has himself chosen not to come to the Court in time, non-consideration of his case cannot make the entire process of selection vitiated. We find a little touch of an enigma in the case of this applicant where on the one hand he is questioning the orders passed in the case of Shri V.K. Sharma regarding his selection and appointment while, at the same time, is seeking the benefit of the same order. Under service jurisprudence, benefit is extended to a party who comes to the Court of Law being vigilant about his rights. Exception is made only when the Court lays down a principle of law applicable to all where one can take benefit of those orders/judgment. In the present case, therefore, we would choose not to annul the selection of private respondents as applicant Shri Palne had chosen not to come to the Court in time for similar relief as given to three of the four persons whose names have been substituted by the State Government.
28. We have carefully considered the contention of the applicants regarding yearwise preparation of the panel from the non-SCS category. We can take judicial notice of the fact that State of Himachal Pradesh, Union of India or the State Government has not considered any proposal for appointment of an officer to IAS from non-SCS category during the last more than 50 years. There, recommendations are made in special cases or when special circumstances come to the notice of the State and they do not have a fixed quota as they have been only providing a limit within the quota of promotees. If Union of India, for some valid reasons, or for lack of a proper proposal from the State Government decides that no appointment from non-SCS category is to be made for any particular years, they commit no illegality as in view of Regulations 3 and 4, it is Union of India which takes a decision as to whether any vacancy is to be allocated to the category of non-SCS officers of the State for their appointment to IAS or not.
29. For the reasons, discussed above, these O.As. are dismissed.