Central Administrative Tribunal - Bangalore
M.V. Thimmaiah vs Union Of India (Uoi) And Ors. on 4 October, 2004
Equivalent citations: 2005(2)SLJ113(CAT)
ORDER
P. Shanmugam, J. (Vice Chairman) All these applicants belong to Group-A. Officers of the State of Karnataka. They assail the selection of candidates recommended for inclusion in the IAS cadre under the non-State Civil Service quota earmarked for the officers of the State of Karnataka.
Facts :
1. Proceedings were initiated with a communication from the Deputy Secretary to Government, DPAR (Services) Karnataka Government Secretariat dated 30th March, 2002 for considering the eligibility of candidates for selection to the 8 vacancies in the Indian Administrative Service from the non-State Civil Services quota earmarked for the State of Karnataka. 40+1 candidates were short listed in the order of merit from among the 79 candidates by the State Government. The Committee for selection constituted for that purpose thereafter held the interviews between 24-11-2003 and 28-11-2003 and prepared a select list of 8 candidates. They were sent through the' Government of Karnataka to the Union Public Service Commission for approval and for issuance of orders of appointment by the Government of India. At this stage about 18 original applications were filed challenging the selection.
2. The further process of selection was stayed by this Tribunal by order dated 16-01-2004. The Hon'ble High Court of Karnataka on writ petitions filed against the interim order in Writ Petition No. 2124/2004 etc., by order dated 25-03-2004 vacated the interim order and allowed the selection process to go on subject to the ultimate result of the applications before the this Tribunal with a further direction to dispose of the matter within a period of 6 months.
3. The applications were heard on merits finally. There are two groups of applicants viz., (1) Those who have not been short listed by the Screening Committee for selection and (2) Those who appeared for interview but are not in the select list of candidates prepared by the Selection Committee.
4. First group--candidates not selected by the Screening Committee. Contentions of the applicants are that as per the procedure a Screening Committee was constituted by the Government of Karnataka for short listing non-KAS Officers from among the officers who had fulfilled the eligibility criteria. The Committee constituted for that purpose had to satisfy itself about the eligibility of officers more particularly about their outstanding merit and ability based on performance report. According to the applicants, the Screening Committee did not consider the performance report of the officers properly. They have short listed ineligible and less meritorious candidates contrary to the guidelines issued for that purpose under the Rules. The applicants have named the officers, against some of whom allegations of favouritism and arbitrariness were levelled, as respondents.
5. Second group--candidates not selected by the Selection Committee. Contentions of the applicants are that the Selection Committee was not a properly constituted committee and hence the selection is ab initio void having been made by an incompetent committee without jurisdiction. The interview was a farce and an empty formality. Assessment was made in such a way to select favourites actuated by mala fide considerations and deliberateness. The selection of named candidates who are arrayed as respondents and non-selection of the applicants according to then is arbitrary, discriminatory and illegal. They have prayed for the Tribunal to go into the selection records in the light of specific allegations of favouritism, extraneous consideration and mala fides raised against the Chairman and another member of the Committee to see whether there was any fairness in the selection.
6. The respondent/State Government defended the recommendations of the Screening Committee as one made in accordance with the Rules and guidelines. The UPSC defended the selection as a valid one and submitted that the Tribunal cannot sit in judgment over the selection as an Appellate Authority. The contesting respondents inter alia contended that the applications are premature and they must await the final order of appointment. The applicants acquiesced with the selection process having participated in the interview. It is further argued that the committee was fairly constituted with persons of eminence. There was no illegality or arbitrariness in the selection. According to them the plea of mala fides is unsubstantiated in the facts and circumstances of the case.
7. We have heard the learned Counsel in extenso and gone through the records including the files and considered the matter carefully.
8. The relevant provisions that we are concerned with are as follows: Section 3 of the All India Services Act, 1951 enables the Central Government to make Regulations for recruitment to All India Services. The Indian Administrative Service (Recruitment) Rules, 1954 came to be framed in exercise of the power conferred by Sub-section (1) of Section 3 of the All India Services Act, 1951. The Indian Administrative Service (Appointment by Selection) Regulations, 1956 were issued in pursuance of Sub-rule (2) of Rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954. In supersession of 1956 Regulations, the Central Government made the Indian Administrative Service (Appointment by Selection) Regulations, 1997 (hereinafter referred to as 1997 Regulations). Some of the relevant provisions of the 1997 Regulations are extracted for better appreciation.
2. Definitions: In these regulations, unless the context otherwise requires:
(a) "Committee" means the Committee as constituted under Regulation 3 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955;
XXX XXX XXX
3. Determination of vacancies to be filled: The Central Government shall, in consultation with the State Government concerned, determine the number of vacancies for which recruitment may be made under these regulations each year. The number of vacancies shall not exceed the number of substantive vacancies, as on the first day of January of the year, in which the meeting of the Committee to make the selection is held.
4. State Government to send proposals for consideration of the Committee : The State Government shall consider the case of a person not belonging to the State Civil Service but serving in connection with the affairs of the State who,
(i) is of outstanding merit and ability: and
(ii) holds a Gazetted post in a substantive capacity; and
(iii) has completed not less than 8 years of continuous service under the State Government on the first day of January of the year in which his case is being considered in any post, which has been declared equivalent to the post of Deputy Collector in the State Civil Service and propose the person for consideration of the Committee. The number of persons proposed for consideration of the Committee shall not exceed five times the number of vacancies proposed to be filled during the year;
Provided that the State Government shall not consider the case of a person who has attained the age of 54 years on the first day of January of the year in which the decision is taken to propose the names for the consideration of the Committee;
Provided also that the 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 Regulation 9 of these regulations.
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 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) of 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 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 proviso 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 the Joint Cadres, a separate select list shall be prepared in respect of each constituent having a State Civil Service.
6. Consultation with the Commission:
(1) 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 along with
(i) the confidential records of the officer concerned; and
(ii) the observations, if any, of the State Government and the recommendations of the Committee.
(2) The State Government shall also forward the recommendations of the Committee and its observations, if any, to the Central Government. The Central Government shall forward their observations, if any, on the recommendations of the Committee, to the Commission.
7. Preparation of select list by the Commission :--(1) The Commission shall consider the list prepared by the Committee, the observations, if any, of the Central Government and the State Government concerned on the recommendations of the Committee and approve the list subject to the provisions of sub-regulation (2) which shall be termed as a select list.
(2.) If the Commission considers it necessary to make any amendment in the list, it shall consult the Central Government and the State Government concerned and after taking into account the comments, if any, of the Central Government and the State Government concerned, may approve the list with such amendments, if any, as are in its opinion, just and proper.
9. Power of the Central Government not to appoint in certain cases:
Notwithstanding anything contained in these regulations, the Central Government may not appoint any person whose name appears in the select list, if it is of the opinion that it is necessary or expedient so to do in the public interest.
Provided that no such decision shall be taken by the Central Government without consulting the Union Public Service Commission and without recording the reasons therefor."
The 'Committee' required to be constituted under Regulation 2(a) is as follows:
[As per The Indian Administrative Service (Appointment by Promotion) Regulations, 1955] "3. Constitution of the Committee to make Selection--There shall be constituted for a State Cadre or a Joint Cadre specified in Column 2 of Schedule a Committee consisting of the Chairman of the Commission or where the Chairman is unable to attend, any other member of the Commission representing it and other members specified in the corresponding entry of Column 3 of the said Schedule:
Provided that -
(i) no member of the Committee other than the Chairman or the member of the Commission shall be a person who is not a member of the Service;
(ii) the Central Government may after consultation with the State Government concerned, amend the Schedule.
(2) The Chairman or the member of the Commission shall preside at all meetings of the Committee at which he is present.
(3) The absence of a member, other than the Chairman or member of the Commission, shall not invalidate the proceedings of the Committee if more than half the members of the Committee had attended its meetings."
xxx xxx xxx SCHEDULE
________________________________________________________________________________________ Sl. Name of State Other Members of the Committee No. Cadre/Joint Cadre ________________________________________________________________________________________ Xxx xxx xxx
12. Karnataka (1) Chief Secretary to Government.
(2) Additional Secretary to Government.
(3) Principal Secretary to the Government, Revenue Department.
(4) Senior-most Divisional Commissioner.
(5) Two nominees of the Government of India not below the rank of Joint Secretary.
Xxx xxx xxx ________________________________________________________________________________________
9. The State Government as per Regulation 4 of the 1997 Regulations referred above has to send proposals for consideration of the Committee. As per Regulation 4(1) the eligibility criteria for consideration of candidates is of outstanding merit and ability besides other requisites and as per Regulation 4(iii) 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. The eligibility criteria for the persons proposed as set out in the Government of Karnataka communication dated 30.3.2002 shall be officers of outstanding merit and ability is reiterated. The relevant part dealing with the eligibility criteria and conditions for recommendations are as follows :
"The officer shall be outstanding merit and ability. This aspect should be thoroughly and strictly ensured on the basis of their C.Rs/Performance Reports and the service records."
After the State Government's short listing the candidates as per Regulation 4 the Selection Committee prepares the list of suitable officers as per Regulation 5 as quoted above.
10. The points argued are considered under the following heads:
Jurisdiction of the Tribunal to go into the Selection:
11. The decision of the Karnataka High Court in Writ Petition No. 2124/2004 and connected cases decided on 25th March, 2004 (N. Sriraman v. Union of India and Ors.) was a petition arising out of interim order passed in this very case. Two questions framed for consideration by the High Court :
(1) Whether the Tribunal was in the facts and circumstances of the case acting without jurisdiction in the absence of an order of appointment of the selected Offices? and (2) Whether the Tribunal was in the facts and circumstances of the case justified in staying the selection process thereby preventing the issue of an order by the authority competent to issue the same under the regulations?
The Hon'ble High Court while answering the question whether the applications before the Tribunal were maintainable arising out of the first question held that the Administrative Tribunals Act provides for adjudication of all disputes regarding recruitment and other service matters by the Tribunals constituted under the Act regardless whether such disputes are raised on the basis of orders formally passed or omissions on the part of the authorities who are competent to pass the same. Their Lordships held that each stage of selection made in the wider sense of the term constitute an order within the meaning of Section 19 which would suffice for the purposes of invoking the jurisdiction of the Tribunal. While holding the applications were maintainable, their Lordships held that the Tribunal should be careful in exercising jurisdiction and that grant of stay was a case of improper exercise of jurisdiction vested in it. In the course of answering the second question they have referred to decisions and observations of the Hon'ble Supreme Court which are pressed into service by the Counsel for the respondents. In the course of consideration of the second question, their Lordships also found that the decision of the authority or the Committee is open to challenge only on the grounds of illegality, patent or material irregularity in the constitution of the Committee or its procedure or proved mala fides affecting the selection. Whether a candidate is fit for particular post has to be decided only by the authority charged with the duty of making a selection. The said decision of the High Court was taken up on appeal and it is stated that the S.L.P. has been dismissed. In T. Sham Bhat v. State of Karnataka, O.A. No. 526/1996, dated 27th August, 1996, in which Union Public Service Commission and the Union of India were parties the question arose whether judicial review is permissible as against the non-selection. After referring to number of decisions of the Apex Court in State of U.P. and Ors. v. Maharaja Dharmander Prasad Singh etc., AIR 1989 SC 997, State of Haryana v. Naresh Kumar Bali, Civil Appeal No. 4422 of 1994, and National Institute of Mental Health and Neuro Sciences v. Dr. Kalyana Raman and Ors., AIR 1992 SC 1806, this Tribunal held that the decision of the Selection Committee must be reasonable without being guided by extraneous or irrelevant considerations. Again in another case M.V. Thimmaiah v. State of Karnataka and Ors., O.A. No. 32/1999 and connected cases dated 26th August, 1999, wherein the Union Public Service Commission and Union of India were parties dealing with a case of shortlisting of candidates for selection to non-State Civil Services under I.A.S selection quota again the question was whether the O.As. were premature. In O.A. No. 45/1999 it was inter alia contended that the application was not maintainable and that application can be entertained by the Tribunal only where an order is passed pertaining to any matter within the jurisdiction of the Tribunal. This Tribunal after going into the law on this aspect held that the disputes concerning the matters fall within the meaning of Section 15 of the Act and that they are maintainable. These judgments are being between the parties inter se they are binding. Therefore, in our opinion, it is not open to the respondents to contend that the applications are premature in the absence of final orders by the Government of India and their contentions are untenable. The further plea that the UPSC or the Central Government shall look into the list is begging the question when the selection by the Screening and Selection Committees are under challenge.
12. References were made of the following judgments by Counsel on either side :
(a) Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, AIR 1990 SC 434. (b) Union of India and Anr. v. Ashutosh Kumar Srivastava and Anr., (2002) 1 SCC 188=2002(1) SLJ 107 (SC). (c) Kiran Gupta and Ors. v. State of U.P., (2000) 7 SCC 719=2001 (1) SLJ 322.
(d) Madan Lal and Ors. v. State of J & K and Ors., (1995) 3 SCC 486= 1995(2) SLJ 161 (SC).
(e) Durgacharan Misra v. State of Orissa and Ors. 1987(5) SLR 276 (SC).
(f) Kenchaiah and Ors. v. State Level Recruitment, 1965 Mys. L.J. 160.
(g) Badrinath v. Government of Tamilnadu, AIR 2000 SC 3243=2001(2) SLJ 460 (SC).
(h) Durga Devi and Anr. v. State of H.P. and Ors. (1997) 4 SCC 575.
(i) Nutan Arvind (Smt.) v. Union of India and Anr., (1996) 2 SCC 488.
(j) State of U.P. v. Rafiquddin and Ors., AIR 1988 SC 162.
(k) Mehmood Alam Tariq and Ors. v. State of at Rajasthan and Ors., AIR 1988 SC 1451.
(l) Union Public Service Commission v. Hiranyalal Dev and Ors., AIR 1988 SC 1069=1988(3) SLJ 610 (SC).
(m) Ramananda Prasad Singh and Anr. v. Union of India and Ors., (1996) 4 SCC 64.
(n) Dr. G. Sarana v. University of Lucknow and Ors., (1976) 3 SCC 585= 1976 SLJ 562 (SC).
(o) Mrs. Kunda S. Kadam and Ors. v. Dr. K.K. Soman and Ors., AIR 1980 SC 881.
The principles that emerge out of these judgments are (1) the Court cannot sit in appeal over the Selection Committee and substitute itself in place of the Selection Committee, (2) the selection can be interfered with only on limited grounds such as patent illegality or vitiated by mala fides or arbitrary and made on extraneous considerations, (3) percentage of marks for interview/test has to be decided on facts of each case, (4) consideration of selection must be fair and there should not be manifest error of law, (5) the selection need not necessarily adopt the same grading which is given by the Reporting/Reviewing Officer and (6) allegations of mala fides should be specific. We have kept these principles in view in considering the cases on hand.
Constitution of Committee for Selection:
13. As per the Regulations the list of suitable officers shall be prepared by the Committee. The Committee as defined under Section 2(a) is the Committee constituted under Regulation 3 which we have extracted above. As per this, the Committee shall consist of Chairman of the Commission (UPSC) or any other Member of the Committee representing it and in addition 6 other members as stated above. Admittedly, the Selection Committee consisted of 6 members only instead of 7. The seniormost Divisional Commissioner required to be member of the Committee was not there. The post of Divisional Commissioner is said to have been abolished on 1.4.2003 and according to the State Government Counsel of the Government of Karnataka and the letter furnished by him, the Government of Karnataka had written a letter dated 13.7.2003 as to the abolition of the post and also requested for suitable amendment with a reminder letter. However, the Regulations remained unamended and consequently, the question that would arise for consideration is whether the absence of seniormost Divisional Commissioner as required under the Regulations would vitiate the constitution of the Committee and selection made by it. According to the applicants, in the absence of a seniormost Divisional Commissioner, the Committee constituted was not a Committee in the eye of law, and therefore, it was a non est quorum juries. The Committee which had made the selection is incompetent and they had no jurisdiction to make the selection. It is further seen that the constitution of the Committee as it stood without the seniormost Divisional Commissioner was not notified and none of the applicants were informed or made known of the non-inclusion of the seniormost Divisional Commissioner. The respondents have pressed into service Sub-clause (3) of Regulation 3 which says that the absence of the Member other than the Chairman or Member of the Commission shall not invalidate the proceedings of the Committee if more than half the Members of the Committee attended the meeting. We find that the expression 'absence of a Member' is different from 'non-inclusion of a Member'. Absence pre-supposes the existence. 'Absence' has been defined in Chambers 21st Century Dictionary 1999 edition as follows :
(1) absence noun.
(2) State of being away. Ex : from work.
(3) The time when a person is away. Ex. from work (4) The stale of not existing or of lacking.
In P. Ramanatha Aiyar 'The law Lexicon Reprint Edition 1987' the word 'Absence' is defined as follows :
"Absence in Law means non-appearance: oppose to presence.
The word 'absence' under Section 498. Indian Penal Code, means absence from the place and cannot be expended to include a case where the husband is present but is unable, owing to illness, to institute the prosecution himself (Emperor v. Tikiomal Bulomal, 1 Ind. Cas. 941 (942). " 'Absence' is opposed to appearance at a specified time". (Covert v. Haskins, 39 Kan. 571).
ABSENT. As a verb, it means to be absent : keep away ; as an adjective it means not in a certain place at a given time. (Cent. Diet.) ; away; opposite of present.
Distinction between verb and adjective. In Plaine v. Drew, 44 N.H. 306, 317, the Court said: "The word 'absent' when used as a verb, as in the sentence to absent himself when used as an adjective in common and ordinary use, simply means 'not present' and refers only to the condition or situation of the person or thing spoken of at the time of speaking, without any allusion or reference to any prior situation or condition of the same person or thing."
The appropriate and plain meaning therefore that could be attributed for the absence of Member could only be the state of being away. Example from work. In Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, (supra), the Hon'ble Supreme Court held:
"Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject."
(Emphasis added) The requirement of a person of eminence of the rank of a Divisional Commissioner was found necessary as per the Rules. Therefore, the U.P.S.C. cannot treat the non-constitution of a member as absent. A Division Bench of the High Court of Mysore in Kenchaiah and Ors. v. State Level Recruitment Committee and Ors., 1965 Mys. L. J. 160, was concerned with a similar question as to the constitution of a Committee. The relevant Rule viz., Rule 3 of the Notification dated 27.12.1962 is as follows:
"There shall be a State Level (Non-Ministerial Posts) Recruitment Committee consisting of :
(i) Secretary to the Government......
(ii) Head of the Department.........
(iii) Deputy Secretary to Government........
(iv) such other officer or his nominee as Government may order, nominate for the specific purpose of selecting candidates for particular category of posts.
for recruitment to State-wide non-ministerial posts."
In that case the Government did not nominate any officer under Clause (iv) of Rule 3(2) of the Notification dated 27.12.1962. The submission that the composition of the Committee was not complete unless Government nominates an officer as required was accepted by the Division Bench and held that on a plain reading of the Rules the Government had no discretion in the matter of nominating an officer and it was bound to nominate an officer and its failure to nominate has made the composition of the Committee incomplete. In State of Mizoram v. Biakchhawna, (1995) 1 SCC 156, it is held that when the statute indicated that the action be taken was to be in a particular manner, it must be done in that manner and in other way. Government of India and Union Public Service Commission were fully apprised of the abolition of the post of Divisional Commissioner. They cannot treat lack of a constituent as an absence. The argument that this shall be treated as a mere absence and saved by Clause (3) in our view is unsustainable. As rightly pointed out, the absence of a Member denotes the existence of a Member and his inability to attend the proceedings. The principles laid down for the promotion of members of Indian Administrative Service and composition of Departmental Promotion Committee set out various guidelines. Guideline No. 13 is as follows:
13. Validity of the Committee Proceeding when one member is absent:
In such cases and provided that the Chairman was not absent, the proceedings of the Committee shall be legally followed and can be acted upon. It should, however, be ensured that the member was duly invited but he absented himself for one reason or the other and there was no deliberate attempt to exclude him from the Committee's deliberations and provided further that the majority of the members constituting the Committee are present in the meeting."
The said guideline fortifies our view that the absence member cannot be interpreted to mean and include the non-existence of a member. Therefore, we are of the clear view that the Committee that went into the selection is not a full fledged committee as required to be constituted and set up in accordance with Clause 2(a) of 1997 Regulations. Consequently the selection made by the Selection Committee which was not duly constituted is anon est, illegal and void. The contention on behalf of the respondents that the candidates have acquiesced with the Committee cannot also be sustained. A defect of this nature is not a matter of acquiescence and in any event as pointed out, the said Committee without the seniormost Divisional Commissioner had not been notified nor apprised of to the candidates. This defect goes to the root of the matter and, therefore, the selection made by the Selection Committee is liable to be set aside.
Selection :
14. The Selection Committee interviewed 39 candidates between 24-11-2003 and 28-11-2003 and prepared a select list of 8 candidates. As per the Indian Administrative Service (Appointment by Selection) Regulations, 1997, the suitability of a person for appointment to the service shall be determined by scrutiny of service records and personal interview. In the reply filed on behalf of the 2nd respondent, the Union Public Service Commission, it is stated that they have interviewed 39 candidates and assessed the records of the officers in accordance with the selection Regulations. According to them the Regulations do not specify weightage to be given to the scrutiny of records and personal interview. Therefore, the Commission has adopted certain norms to conduct selections which are impartial, objective and are being uniformly applied. The candidates who obtained the highest marks were selected by the Selection Committee. We thought it fit to call for the records of the selection to satisfy ourselves as to the fairness in the selection. From the records and the statement of the senior standing Counsel for 2nd respondent it is seen that at the Selection Committee 50 pre cent of marks each were allotted to the service records and interview according to the Commission's decision and further 50% of marks for each of the components must be separately obtained by the candidates for being selected for appointment to the IAS. In other words a candidate must secure a minimum of 25 marks in the assessment of service records and 25 marks in the interview. It is further revealed that the candidates were assessed for 5 years from 1997-98 to 2001-2002 and they were awarded 10 marks for assessment of outstanding, 8 marks for the assessment of very good and 5 marks for good. If the candidates fell short of 25 marks in the interview, they were held not qualified. The Committee has thus awarded marks for CR assessments and marks for interview. After finding those who were below 25 marks in the interview as not qualified, the remaining candidates were ranked according to their total marks. It is true that the Selection Committee is empowered to assess the suitability of a person by screening his service record and personal interview. The Selection Committee while scrutinising the service records may not be bound by the grading given by the Reporting Officer. In other words, even if a Reporting Officer has rated the Officer as Outstanding merit and ability, still the Selection Committee by going through the very same records can rate him differently. It is not open to the Tribunal to sit in judgment over such rating. But, however, when the Selection Committee is not consistent in applying its norms and the same has been done arbitrarily. The Tribunal can go into the method of assessment.
15. In the selection process the grading in the CRs has got a significance. Regulation 4 of the 1997 Regulations says that candidates of outstanding merit and ability shall be short listed. So also Regulation No. 5 says that suitability of a person shall be determined by scrutiny of service records and personal interview. The communication in the Government of Karnataka dated 30th March, 2002 laying down eligibility criteria and the conditions for recommendation says that the officers shall be of outstanding merit and ability. This aspect should be thoroughly and strictly ensured on the basis of their C.Rs/Performance Reports and Service Records. The said communication also says in Clause (ii) the validity or otherwise of the ACRs/APRs of different periods in accordance with the relevant rules. Only the CRs written in accordance with the rules/time limit and concerned authorities are considered as valid CRs/Performance Reports. From the above Rules it is clear that the CRs which are not in accordance with the Rules shall not be valid and the candidates who possess such CRs shall not be considered for selection. One of the main grounds raised by the Counsel for the applicants is that invalid CRs were taken into account and some of the contesting respondent especially Sri Anwar Pasha and Sri K. Ramanna Naik which were not in accordance with the Rules and valid were taken into account. The reply in this context is that everything has been validated as per the Karnataka Civil Services (Performance Reports) and the Karnataka Civil Services (Confidential Reports) (Amendment) Rules, 1999. It is seen that the Karnataka Civil Services (Performance Reports) Rules, 2000 came into force on 1.04.2000. Rule 13(1) of the said Rules reads as under :
13. Repeal and savings--(1) The Karnataka Civil Services (Performance Reports) Rules, 1994 are hereby repealed:
"Provided that the said repeal shall not affect the previous operation of the said rules or anything duly done or suffered thereunder or affect any right, liability or obligation acquired, accrued or incurred under the said rules."
The proviso to this saving clause says that the repeal of 1994 Rules shall not affect the previous operation of the said Rules or anything duly done or suffered thereunder or affect any right, liability or obligation acquired, accrued or incurred under the said Rules. Therefore, if a CR which is required to be done in a particular manner has not been done and consequently a candidate suffers or incurs consequences cannot be saved. The Karnataka Civil Services (Performance Reports) Rules, 1994 defines 'Performance Report' as a report written in accordance with the provisions of Rules 5 to 7 of those Rules. Rule 5 provides for time limit for writing the report. The said rule also provides for a special report. There is also a time limit provided under Rule 8 though it is omitted with effect from 1-06-1999. Therefore, if a report is not made in accordance with the 1994 Rules and in the absence of a special report, the same cannot be taken into account. Of course the deficiency if any with reference to the time limit was sought to be remedied by the 1999 amendment. But, it is submitted that the said amendment was challenged in O.A. No. 5319/2001 and an interim or stay of the said Rule was granted by the Tribunal on 12-06-2001 and by order dated 13-09-2001 the said order continued until further orders. Submission made was that the said O.A. has become infructuous by virtue of 2000 Rules. The 2000 Rules are only prospective. But, however, the respondents including the Selection Committee cannot take into account the CRs which were not written in accordance with the 1994 Rules.
16. In the light of the discussion we find that Sri Anwar Pasha's C.Rs. for the year 1998-99 was written on 14-06-2002 and for 1999-2000 it was written on 15-06-2002. The reports written for the period 1998-99 and 1999-2000 are contrary to the 1994 Rules and the C.Rs. assessment for those years by the Selection Committee is clearly wrong. In the case of Sri. K. Ramanna Naik, Special Reports for 2000-2001 and 2001-2002 could not be taken into account since 2000 Rules do not provide for a special report. 1994 Rules which provide for special report had been repealed. Therefore, as on 1-04-2000 no Special Reports for 2000-2001 and 2001-2002 made by the Selection Committee is contrary to 2000 Rules as there is no provision for Special Report under the 2000 Rules.
17. Some of the patently arbitrary award of marks which impelled the Tribunal to hold so are as follows: (1) In the case of Sri. S. Dayashankar the file discloses at page 563 Vol. 2 a certificate dated 12-11-2003 to the effect that the C.R. for the period 2000-01 is not available. We have ourselves perused the C.R. of Sri S. Dayashankar and there is no C.R. for the period 2000-01. There is no special report either. In the absence of a C.R., the assessment for the year as outstanding and award of marks on that basis is patently illegal. Wherever the Selection Committee has gone backwards it has taken special report and has made an entry to that effect in the relevant column for others. (2) Sri R. Ramapriya, a candidate who had not been selected, but one of the applicants had no C.R. for the year 1997-98. However, he has been assessed as very good by the Selection Committee and awarded marks on that basis. (3) Sri K. Ramanna Naik had no C.R. for the years 2000-01 and 2001-02. It is noted by the Selection Committee in file No. 6/8(1)/03-AIS at page 32 for C.R. of 2001-02: "In this case, Special Reports for the years 1996-97 and 1997-98 are only valid according to the State Government Rules." Therefore, the special report taken for 2000-2001 is invalid and the marks awarded for the C.R. assessment is therefore patently illegal. (4) In the case of Sri Anwar Pasha 1998-99 C.R. was written on 14-06-2002, 1999-2000 and 2000-2001 C.Rs. were written on 15-06-2002 and 2001-02 C.R. was written on 4-07-2002 by the Reporting Officers respectively. There is no report by the Reviewing or Accepting Authority. (5) In the case of Sri S.B. Kolhar his C.R. was assessed for the year 1999-2000 as very good though all the attributes by the Reporting, Reviewing and Accepting Authorities were noted as 'outstanding'. We find the downgrading of 'outstanding' grade to that of 'very good' is unsustainable. (6) Sri R.S. Phonde had all the attributes of 'outstanding' for the years 1998-99, 2000-01 and 2001-02 but he has been downgraded as 'very good'. (7) Sri Putte Gowda has all the attributes of 'outstanding' for the year 1998-99 but is down graded as 'very good'. From the marks assigned by the Screening Committee there is marked differentiation from the marks assigned by the Selection Committee. Shri Anwar Pasha who had ranked 8th by the Selection Committee is ranked 31st by the Screening Committee. Shri N.S. Channappa Gowda who had been ranked as 5th by the Selection Committee had been ranked 26th by the Screening Committee. So also Sri R. Ramapriya is ranked No. 4 by the Screening Committee was not qualified before the Selection Committee. Shri S.B. Kolhar who is ranked 9th by the Screening Committee was given less marks by the Selection Committee. We are only giving instances as to how the two committees have assessed the C.Rs. of candidates differently. (8) Assessment by Members of the Selection Committee are not made available.
18. Above all we find a pattern in award of marks. Some candidates who had secured high marks for C.R. assessment were given less than 25 marks in interview and were found not qualified. For instance Sri Thimmaiah. Sri R. Ramapriya. Sri M. Ramaiah and Sri Putte Gowda. Similarly Sri S.B. Kolhar and Sri R.S. Phonde though found qualified, were given less marks in the interview and C.R. assessment.
19. We have taken considerable time and given our anxious consideration to go through the C.Rs. of all the Officers. We find that assessment by the Selection Committee is not fair and consistent but done in an arbitrary manner.
20. The selection to the cream of officers for the administrative cadre would be the backbone of the country's development. The selection by the Union Public Service Commission consisting of eminent persons of highest calibre should be beyond controversy. Lack of confidence entertained by outstanding officers would be a sad day.
Malafide:
21. The allegations of mala fides against Sri B.S. Patil the former Chief Secretary of the Government of Karnataka and Sri Subir Dutta, Member of UPSC and Chairman of the Selection Committee are made in O.A. Nos. 244/2004 and 1006/2003. The allegations as stated in the Application No. 244/2004 are as follows:
9. Annexure-A1 filed herewith would demonstrate that the grading of the applicant for 6 reporting years from 1995-96 to 2000-01 has been outstanding. Annexures-A2 to A9 concerning respondents 5 to 12 respectively demonstrate that, excepting the 11th and 12th respondents no other candidates has outstanding merit and therefore, the inclusion of the names of the said candidates in the select list is not only arbitrary but also is a product of favoritism shown to them, shorn of all relevant consideration germane to the issue. In so including the said candidates in the select list, the applicant has been disfavoured notwithstanding outstanding merit, solely for the reason that the Selection Committee headed by Sri Dutta and Sri B.S. Patil, former Chief Secretary to the Government being one of the constituents of the Committee were interested in the candidature of respondents 5 to 12. As the consequence thereof the applicant has been denied selection and a fair ' treatment. The entire selection is thus vitiated and tainted by extraneous considerations, including the appeasement of Sri. Dutta, the Chairman of the Selection Committee with a huge site in the City of Bangalore. Irrespective of whether he was eligible or ineligible for such an allotment of site, it has a direct bearing on the selection in question, in that, the selection process having been set in motion in March 2002 itself, it is on the eve of the interviews, after the short-listing of the candidates that the site mentioned earlier has been bartered away in favour of Sri Dutta, in which regard the former Chief Secretary to the Government has taken keen interest for reasons not far to seek. Thus, on account personal patronage having been extended to respondents 5 to 12, the applicant has been denied his legitimate selection. He is thus aggrieved by his non-selection and also the selection of respondents 5 to 12.
xxx xxx xxx B. The participation of Sri Subir Dutta in the selection process, and his heading the 4th respondent-Committee having vitiated the entire selection, the recommendations made pursuant to the proceedings of the said Committee are liable to be rejected by the 2nd respondent. In O.A. No. 1006/2003 in Paragraph 8 it is stated as follows: .... As already preluded, there was a considerable amount of deliberateness on the part of the Government in denying selection to the application who belongs to a Scheduled Caste and who, notwithstanding his outstanding merit, a clean track record of service, transparent confidential reports and performance reports and in not recommending his candidature for selection on account of his not carrying any extraneous weight and influence on the higher ups in the Government. Thus, not only on account of deliberateness to deny his selection despite his outstanding track record of service, and also on account of vindictiveness towards him for his having approached this Hon'ble Tribunal, exposing the injustice that had been perpetrated to him by the Government, it did not include his name in the select list prepared even in pursuance of the directions contained in Annexure-A2 ante. xxx xxx xxx
This is a gross discrimination repeatedly practised against the applicant, with considerable amount of deliberateness and vindictiveness as also in a firm bid of the Government to extend an undue favoritism and patronage to their favoured candidates, including respondents 5 to 8."
M. A. 38/2004 in O.A. 1006/2003, application to implead Sri Subir Dutta and Sri B.S. Patil after notice was ordered they were included as respondents. In the affidavit in support of the said application it is stated as follows:
"4. After the filing of the original application, I have come to know and have ascertained from unimpeachable documents of probative value, and also from dependable sources which I sincerely believe that the entire process of selection is vitiated by extraneous considerations and the bias animating the tainted minds of the proposed respondents who had been satiated by the candidates who have been selected, with extraneous considerations including monetary considerations.
5. While the process of selection was on in early part of April 2003 itself, the Chief Secretary to the Government put up a note to the Hon'ble Chief Minister on 13-04-2003 reading thus:
"Sri Subir Dutta, Defence Secretary, GOI has requested for a site in Bangalore as he wants to settle in Bangalore after retirement. He was instrumental in selecting Bangalore for Annual Air shows and for grant of defence land.
The Commissioner, BDA, has identified a site measuring 50x80 feet at No. 20/A HSR Lay-out Sector VI, Hon'ble C.M. may please consider allotment of the above site under 'G' category.
Hon'ble C.M."
6. Without even any application of mind and also throwing into winds the norms prescribed in the rules of allotment of corner sites, and quite mechanically approving the note so put up the Hon'ble Chief Minister approved the note and ordered thus :
"A site may be given to Sri Subir Dutta.
C.M."
7. Following it up, the Chief Secretary made an order on the same note thus:
"Directions to be issued to BDA.
Chief Secretary, 17-04-2003"
8. Thereafter followed a letter from the Principal Secretary to the Government of Karnataka, Urban Development Department a letter bearing No. Naae. 343. Booswa, 2003 dated 5-05-2003 addressed to the Commissioner of the BDA, and couched in Kannada language the substance and purport thereof being the following:
"Regarding allotment of a stray site to Sri Subir Dutta, Defence Secretary, Government of India."
9. I have been directed to intimate you that the Government has approved allotment of the site bearing No. 20/A measuring 50x80 feet situate in HSR, 6th Sector to Sri Subir Dutta, Defence Secretary, Government of India, in relaxation of the condition under Rule 10(3) (iii) of the BDA (Allotment of sites) Rules, 1984, under the revised guidelines governing 'B' category as contained in the Government guidelines dated 6-08-1997 that the allottee should be a resident of the State of Karnataka.
Yours truly, Sd/ K.N. Krishnamurthy, Deputy Secretary to the Government, Housing Department."
10. A letter of allotment dated 17-05-2003 was issued by the Bangalore Development Authority pursuant to which the sale consideration was paid on behalf of Sri Subir Dutta through 3 separate demand drafts all dated 12-06-2003, and the same was credited under a challan bearing No. 58904 dated 17-06-2003 at the Canara Bank, Extension Counter, BDA Complex, K.P.West, Bangalore. The sital value reflected in the sale deed executed in favour of Sri Subir Dutta being Rs. 18,92,104/-. An additional favour of allotment of a marginal land measuring 123.93sq. mtrs. Was also made as per an order of the Chairman of the BDA, said to have been passed on 4-06-2003, pursuant to which a sale deed dated 27-06-2003, filed herewith as Annexure-A11 has been executed and registered on 27-06-2003 in favour of the said Sri Subir Dutta.
11. Annexure-A11 dated 27-06-2003 and the events that have been mentioned above which have all taken place when the purpose of selection to the Indian Administrative Service from the Non-State Civil Service was on would demonstrate that the said Sri Dutta has been appeased and lured with the said favour, and illegal gratification for favouring the candidates whose names have now been included in the select list. As if the said favour was insufficient a "marginal land" as it has been styled as also been bartered away in his favour for no monetary consideration, as if was the personal property of the Chairman of the BDA or the higher ups in the Government. In the entire clandestine and surreptitious transaction of appeasing Sri Dutta with the site and the marginal land, that too for a paltry consideration as against the market value of Rs. 80,00,000/- which is the present market value of the site in question, the Chief Secretary Sri B.S. Patil has been hand in glouse with not only Sri Dutta but also with all the officers and the higher ups in the Government and with the selected candidates for favouring whom he rushed to New Delhi with all the concerned files, immediately after the Hon'ble High Court passed an ex- parte interim direction in the writ petitions of two candidates namely Sri N. Sriraman and Sri Channappa Shirol, for bearing on the Union Public Service Commission for a hurried approval of the tainted list of favoured candidates, and also to get orders of appointment issued in pursuant of the approval of the Commission. His interestedness in the selected candidates who have been favoured with selection an extraneous consideration has also tainted and vitiated the entire process of selection. Even his Excellency the Governor of Karnataka has publicly resented the selection and the vitiating action attendant thereon, as seen from the paper clippings from the Hindu dated 1-01-2004 filed herewith and marked as Annexure-A12."
22. We find that the detailed allegations of mala fide on the part of Sri Subir Dutta and Sri B.S. Patil can at no stretch of imagination be held to be vague or unspecific. On the contrary the allegations are clear, specific and pointed at Sri. B.S. Patil, a Member of the Committee and Sri Subir Dutta, its Chairman. Though Sri Subir Dutta and Sri B.S. Patil were impleaded in O.A. No. 1006/2003 and Sri Subir Dutta was impleaded in O.A. No. 244/2004 as set out above, they have not chosen to file any reply. When this was pointed out at the stage of reply, an attempt was made to file an affidavit by Sri Subir Dutta which was returned by the office to make a proper application and the same remains not re-presented. We have given our anxious consideration to these allegations which have not been rebutted by Sri Subir Dutta and Sri B.S. Patil. It is countered by the contesting respondents by saying that allegations are unspecific and that Sri Subir Dutta was appointed as Member of UPSC only on 4-07-2003 while the sale deed for a site was executed on 27-06-2003 and that the Selection Committee was constituted only in November 2003. We are of the opinion that the applicants have made out a case of mala fide selection. Extraneous considerations had weighed with the Selection Committee to select candidates not on the basis of merit alone. The Screening Committee headed by the Chief Secretary (Sri B.S. Patil) as Chairman with four other Members was constituted by order No. DPAR 78 SAS 94 Bangalore dated 4-03-2002. Names of eligible candidates were called for as per proceedings dated 30-03-2002. Screening Committee short listed the candidates on 8-07-2003. Based on the note by the Chief Secretary dated 13-04-2003 a site was ordered to be allotted. The irregularities alleged in allotment of site to Sri Subir Dutta are as follows:
(a) Sri Subir Dutta is not resident of Karnataka and hence inelligible for the allotment.
(b) In addition to site measuring 50'x80' a marginal land of 123.93 sq. mts. at no extra cost allotted.
(c) There is huge difference of costing between the allotted price and market value.
(d) Rules were relaxed for such allotment. (e) There was serious allegation of interest and influence of Shri B.S. Patil in the selected candidates and that he had virtually a defacto Chairman has not been denied by either of them by filing counter.
A Constitution Bench of the Hon'ble Supreme Court in R.P. Kapur and Ors. v. Sardar Pratap Singh Kairon and Ors., AIR 1961 SC 1117, has taken the view that if serious allegations are made against a person, he owes a duty to the Court to file an affidavit stating the correct position regarding the allegations and not to leave the refutation of the allegations to Secretaries and other officers who only speak from the records. Their Lordship in this context dealing with an allegation against Chief Minister of State have observed as follows:
".......These are all matters on which the Chief Minister alone was in a position to enlighten us. In view of the allegations made against him, we consider that the Chief Minister owed a duty to this Court to file an affidavit stating what the correct position was so far as he remembered it. We recognise that it may not be possible for a Chief Minister to remember the circumstances in which a document passes through his hands; there must be many papers which a Chief Minister has to deal with in the day to day business of administration. If the Chief Minister did not remember the circumstances, it would have been easy for him to say so. If he remembered the circumstances he could have refuted the allegations with equal ease. This is not a case where the refutation should have been left to Secretaries and other officers, who could only speak from the records and were not in a position to say why the Chief Minister passed certain orders. The petitioners are obviously suffering from a sense of grievance that they have not had a fair deal. We have held that there is no legal justification for that grievance; but in executive as well as judicial administration, justice must not only be done but it must appear that justice is being done. An affidavit from the Chief Minister would have cleared much of the doubt which in the absence of such an affidavit arose in this case."
(Emphasis added) In Jagdish Prasad v. State of Bihar, AIR 1974 SC 911, the Hon'ble Supreme Court as an obiter dicta observed that mechanical affidavits miniaturising the files into a few paragraphs, by some one handy in the Secretarial cannot be regarded as satisfactory. This is not a mere punctilio of procedure but a probative requirement of substance. In Mohammad Ibrahim v. R. Rama Rao, AIR 1976 SC 1822, the Hon'ble Supreme Court while dealing with the procedure affidavit in opposition by the State Government agreeing with the grave concern expressed by the High Court that counter affidavits were prepared without any regard to accuracy hoped that Government will display greater competence and attention in drafting affidavits. As we noticed in this case specific averments are made in the original applications. But, we find that copies in a mechanical and stereotyped manner of same counter affidavit in all individual cases are filed by official respondents without reference to the points raised in each of the original applications including specific allegations of mala fides, arbitrariness etc.
23. We do not take the non-filing of reply alone as the sole factor in accepting the case of mala fides. We have taken into consideration all factual matrix starting from the preparation by the Screening Committee and the inconsistent and confusing manner of consideration of C.Rs. and special reports and arbitrary manner in which marks were given by the Selection Committee as pointed out above. Coupled with the non-application of mind in the assessment of C.Rs. and discriminatory award of marks by the Selection Committee, we find that the applicants have made out a case of extraneous considerations in the matter of selection.
Screening Committee:
24. The main submission of those applicants who have not been included in the 41 screened candidates for the selection is that meritorious candidates like that of the applicants were being left out and less meritorious were selected and screened. According to them the only criterion being outstanding merit and ability as reflected in the C.Rs. was not taken into account and the less meritorious with less entries in the service records and in some cases ACRs which cannot be taken into account were considered for selection.
25. The State Government has repelled this contention and submitted that the Screening Committee has been formed as per the proceedings of the Government of Karnataka dated 4-03-2002 which consisted of the Chief Secretary to Government as Chairman and four other members. They have set out the eligibility criteria and scrutinised the 79 officers in reference to their C.Rs. and graded them separately and ranked them by awarding marks for the grading. The learned State Government Advocate has submitted that 20 marks are awarded for outstanding, 15 marks for very good and 10 marks for good and on that basis all the 89 candidates were ranked and rank list was prepared and 41 candidates from among all the candidates were short listed for selection. The applicants who have been kept out of the 40 short listed candidates have not made out a case that their non-inclusion is arbitrary. Hence, we are unable to sustain the case of those applicants and these O.As. are liable to be dismissed.
26. For the reasons given above, the selection of 8 non-State Civil Service Officers of Government of Karnataka during 2003 for appointment to the I.A.S. of Karnataka cadre is hereby set aside. The official respondents are directed to constitute a proper Selection Committee in accordance with the Rules as observed above and select suitable officers for appointment to the I.A.S. cadre of the State of Karnataka for 2003 under the non-State Civil Service quota on merits and in accordance with law, keeping in view the conclusions arrived at in this order.
27. The applications of such of the applicants as were not interviewed for selection are dismissed. The remaining O.As. are allowed accordingly. No costs.