Karnataka High Court
N. Sriraman vs Union Of India (Uoi) And Ors. on 25 March, 2004
Equivalent citations: 2004(7)KARLJ152, 2004 LAB IC 1833, 2004 AIR - KANT. H. C. R. 1455 (2004) 4 SCT 301, (2004) 4 SCT 301
Author: Tirath S. Thakur
Bench: Tirath S. Thakur, Huluvadi G. Ramesh
ORDER Tirath S. Thakur, J.
1. Issue Rule. With consent, these petitions which raise common questions of law for consideration have been heard together and shall stand disposed of by this common order. The petitions assail the correctness of two interim orders passed by the Central Administrative Tribunal, Bangalore, whereby the ongoing process of selection for appointment of non-civil service employees of the State Government to Indian Administrative Service has been stayed. In addition the petitions pray for a writ of prohibition restraining the Tribunal from proceeding further with the hearing of the case filed before it. The controversy arises in the following backdrop:
Indian Administrative Service (Appointment and Selection) Regulations, 1997 envisage appointment of persons possessing outstanding merit and ability and holding gazetted posts in a substantive capacity with not less than eight years of continuous service in the State service to the Indian Administrative Service. Regulation 3 of the said Regulations stipulates that the Central Government shall in consultation with the State Government concerned determine the number of vacancies for which recruitment may be made under the said regulations each year. Regulation 4 stipulates the conditions of eligibility for appointment to the Indian Administrative Service. Regulation 5 envisages preparation of a list of suitable officers by the Committee while Regulations 6 and 7 deal with consultation with the Commission and preparation of select list by it. Appointments to service are then made from out of the select list in terms of Regulation 8 of the Regulations with Regulation 9 reserving to the Central Government the power not to appoint any person whose name appears in the select list if it is of the opinion that it is necessary or expedient to do so in public interest.
2. In keeping with the requirement of Regulation 3 of the above regulations, the Central Government appears to have determined a total of eight vacancies for the year 2003 for which the process of recruitment was set in motion by the Government constituting a Screening Committee in terms of Government Order dated 4-3-2002. This Committee was headed by the Chief Secretary to Government of Karnataka with four other Secretaries to Government as its Members. The Committee was required to short list the names of Non-State Civil Service Officers eligible for induction in to the Indian Administrative Service.
3. Instructions were in the above background issued to the Secretaries to the Departments concerned in the form of a circular asking them to recommend the names of suitable Non-State Civil Service Officers of Group A service category for consideration. The circular indicated the requirements which the Officers were supposed to meet before their names could be sent upto the Screening Committee. In response, the Committee appears to have received as many as 93 recommendations from different departments which were then examined by it to short list the names of 40 officers for being placed before the Selection Committee constituted under the Regulations. The Selection Committee interviewed these 40 officers and on the basis of their performance in the interview and the service record recommended the names of eight candidates for appointment in terms of Regulation 5 of the Indian Administrative Service (Appointment and Selection) Regulations, 1997. The name of another officer who happened to be the forty-first officer was also considered in obedience to an order issued by the Central Administrative Tribunal, Bangalore. It was at this stage that O.A. No. 1006 of 2003 was filed by one of the 40 short-listed officers before the Tribunal assailing the process of selection on several grounds. An application for interim relief also appears to have been made for stay of further proceedings pending final disposal of the matter. By an ex parte order dated 23-12-2003, the Tribunal held that the applicant had made out a prima facie case for staving the selection process, which was accordingly stayed pending further orders. The validity of the said order is assailed in Writ Petition Nos. 2124 of 2004 and 2238 of 2004 filed by two of the Officers short-listed for consideration by the Screening Committee.
4. During the pendency of the writ petitions, it was made clear that the pendency of the writ proceedings in this Court would not come in the way of the Tribunal considering any prayer for vacation of the interim order or modification thereof. An application pursuant to the above order appears to have been filed before the Tribunal seeking vacation of the ex parte interim order granted by the Tribunal earlier. That application has been upon consideration dismissed by the Tribunal by Order dated 6-2-2004. Writ Petition Nos. 5880 and 6136 of 2004, filed by Dr. V. Chandrashekar, one of the short-listed Officers assail Tribunal's order dated 12-12-2003 staying the selection process and that dated 6-2-2004 refusing to vacate the same. Writ Petition Nos. 6052 and 6054 of 2004 have been similarly filed by three other officers challenging the validity of the Tribunal's order dated 6-2-2004 besides seeking a writ of prohibition restraining the Tribunal from proceeding further with the hearing of O.A. No. 1006 of 2003.
5. Appearing for the petitioners Mr. Narasimha Murthy, learned Senior Counsel made a two-fold submission in support of the petitions. Firstly, he contended that the Tribunal was not justified in assuming jurisdiction in the matter and in staying the entire process while the same had yet to culminate in the issue of an appointment order by the Competent Authority. He urged that the Central Administrative Tribunal was as a creature of the Administrative Tribunals Act entitled to exercise jurisdiction only in the manner and to the extent prescribed thereunder. Section 19 of the Act according to learned Counsel presupposes the existence of an order passed by one of the authorities referred to therein before the jurisdiction of the Tribunal may be invoked by any person aggrieved of any such order.
6. It was argued that since no order had so far been issued by the authority competent to issue the same, the Tribunal could not intervene to stall the process of selection just because certain irregularities were alleged to have been committed in the same. Relying upon the decisions of the Supreme Court in S. Govinda Menon v. Union of India, ; Smt. Ujjam Bai v. State of Uttar Pradesh and Anr., AIR 1962 SC 1621; Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr., and Calcutta Discount Company Limited v. Income-tax. Officer, Companies District I, Calcutta and Anr., , it was contended that while a quasi-judicial authority that has jurisdiction to decide does not lose that jurisdiction by deciding the matter erroneously, yet where certain essential preliminaries are absent, such absence may deny jurisdiction to the Tribunal or authority. The issue of a proper order by the authority competent to do so was according to the learned Counsel an essential pre-condition for the exercise of jurisdiction by the Tribunal under Section 19 of the Act, the failure of which requirement rendered the entire exercise undertaken by the Tribunal incompetent thereby vitiating the interim orders passed by it.
7. It was alternatively submitted by Mr. Narasimha Murthy that the Tribunal was not in any case entitled to sit in judgment over the opinion of the Selection Committee as regards the merit and the suitability of the officers short-listed for appointment. The Tribunal could even after the process of selection had culminated in an appointment order, interfere with the same only if it found that there was an illegality or a material irregularity which had the effect of vitiating the end result. No such illegality of irregularity in the constitution of the Committees or procedure adopted by them for holding of the selection having been established even prima facie, the Tribunal was not justified in staying the process by issuing an interim order of stay. Reliance in support of that contention was placed by Mr. Narasimha Murthy on the decision of the Supreme Court in Dalpat Abasaheb Solunke etc. v. Dr. B.S. Mahajan etc., .
8. Mr. Vijayashankar, learned Senior Counsel appearing for some of the petitioners in W.P. No. 2238 of 2004 while adopting the submissions made by Mr. Narasimha Murthy, argued that the selection process was still incomplete as all that had happened till now was that a list of officers whom the Selection Committee considered suitable on the basis of their service records and personal interview had been prepared. The list had yet to be processed in terms of Regulations 6 and 7 of the 1997 regulations before the Central Government could issue an appropriate order of appointment of persons included in the select list. The grievance of the petitioners was in the circumstances premature and so was the interim order passed by the Tribunal especially when the recommendations made by the Selection Committee or the Public Service Commission may or may not eventually result in any appointment. Relying upon the decisions of the Supreme Court in R.S. Dass v. Union of India and Ors., ; Union of India and Anr. v. Ashutosh Kumar Srivastava and Anr., , it was argued that the approach adopted by the Tribunal while staying the selection process was defective.
9. On behalf of the respondents, Mr. Subramanyam Jois argued that the selection process was in the instant case vitiated by an illegality inasmuch as candidates who did not possess outstanding merit within the meaning of Regulations 4 and 5 were short listed for consideration even when they were not eligible for any such consideration. The selection process was according to Mr. Jois affected even by procedural irregularities and bias. It was contended that the Annual Confidential Reports considered for holding the selections had not been properly written or maintained nor was the process of assessment of merit fair and objective. Mr. Jois argued that although proper averments had not been made in the Original Application filed before the Tribunal regarding bias of Sri Subir Dutta, the Chairman of the Selection Committee and the mala fides of Sri B.S. Patil, the then Chief Secretary, yet an appropriate application had been made before the Tribunal for impleading the said two officers and for amendment of the original application to incorporate suitable averments which would suggest and make out a case of bias and mala fides against the said two officers. It was submitted that the allotment of a house building site by the BDA in one of its residential layouts was in the facts and circumstances of the case indicative of a game plan according to which the then Chief Secretary of the State had acquired a clout with the Chairman of the Committee only to push through the names of the officers in which he was interested. The allotment of the site was according to the learned Counsel contrary to the rules against which public interest petitions had already been filed. It was also argued that this Court could not in exercise of its writ or supervisory jurisdiction under Articles 226 and 227 of the Constitution interfere with an interim order passed by the Tribunal especially when the order in question could not be said to be without jurisdiction.
10. Mr. Shantharaju, learned Senior Counsel appearing for some of the short-listed officers who have also separately filed applications before the Tribunal challenging the selection process argued that the entire process of selection was vitiated as the material on the basis whereof the selection was made was itself defective. He argued that since the maintenance of the Annual Confidential Reports was not in accordance with the rules and regulations governing the same, the entire exercise based on any such inadmissible material was bound to be vitiated. It was also contended that apart from the Annual Confidential Reports, there was no other material which could be said to have been considered by the Screening Committee for short-listing the officers or by the Selection Committee for preparation of a select list. It was submitted that although the aggrieved short-listed officers have not been in a position to establish a direct nexus between the allotment of the site in favour of Mr. Subir Dutta and the selection of Officers for appointment to Indian Administrative Service, yet the circumstances in which the allotment was made was clearly indicative of the fact that the process was not free from suspicion. There was according to the learned Counsel no reason why the process of selection could not be kept unpolluted and free from any allegations of bias or mala fides like the one made in the instant case. The reason for allotment even in the letter received from Sri Subir Dutta was according to the learned Counsel wholly insufficient for a favour to be shown to a bureaucrat who did not otherwise qualify for the same just because he like many others had visited Bangalore and found it a beautiful city or just because his daughter was residing in the city.
11. Mr. Ravi Varma Kumar, learned Senior Counsel appearing for some other short-listed Officers similarly aggrieved by the selection process argued that the Tribunal was competent to entertain an application and examine the correctness of the allegations made by the applicants in the same. He submitted that the passing of an order by the Authority competent was not a condition precedent for the Tribunal to invoke its jurisdiction. He urged that cases involving inaction of the authorities in relation to service matters could also be brought up before the Tribunal for its interference. He contended that the scope of interference by the High Court under Article 226 of the Constitution was limited to finding out whether the subordinate Court or the Tribunal has acted within its jurisdiction and not for correction of errors even if the same were apparent on the face of the record.
12. Mr. Narasimhan, learned Counsel appearing for some of the respondents contended that the Selection Committee referred to in 1997 regulations was one constituted under Regulation 3 of the Indian Administrative Service (Appointment and Selection) Regulations, 1997. One of the members of any such Committee was in the case of Karnataka meant to be the senior most Divisional Commissioner. Since the Committee constituted in the instant case did not have the senior most Divisional Commissioner as a Member, it was not properly constituted. It was alternatively argued that Regulation 4(1)(iii) of the 1997 Regulations did not permit short-listing of more than 40 candidates for eight vacancies proposed to be filled up in the instant case. The State Government had in the instant case drawn up a list of 41 Officers which was an incurable irregularity according to the learned Counsel vitiating the selection process. It was also contended that the number of vacancies available having occurred over a number of years in the past, clubbing of all such vacancies was not permissible as eligibility of the officers for consideration against the same had to be determined by reference to the date of vacancies became available. It was lastly-argued by Mr. Narasimhan that the counter-affidavit by UPSC before the Tribunal showed as though it had played a role in the selection process even before the stage for doing so had come. The selection process was according to the learned Counsel vitiated even on that account.
13. We have given our anxious consideration to the submissions made at the Bar. Two primary questions arise for our consideration. These are.--
(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 officers? 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?
14. Re: Question No. 1.--The Administrative Tribunals Act, 1985 was enacted pursuant to Article 323A of the Constitution to provide for adjudication or trial by Administrative Tribunals of disputes and complaints in regard to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority. Since the question raised in the present writ petitions touches the jurisdiction of the Tribunals established under the said Act, an answer to the same, cannot be found without reference to Section 14 appearing in Chapter 3 of the Act which chapter deals with the jurisdiction, Powers and Authority of the Tribunals. A careful reading of Section 14 shows that the Central Administrative Tribunal established under the Act is, empowered to exercise on and from the appointed day "all the jurisdiction powers and authority exercisable immediately before that date by all Courts" except the Supreme Court in relation to the matters enumerated in Clauses (a), (b) and (c) to Sub-section (1) of Section 14. While Clause (a) to Section 14(1) relates to recruitment and matters concerning recruitment to any All India Service or to any civil service of the Union or a civil post under the Union, Clause (b) is more comprehensive and brings within its fold all service matters concerning a Member of any All India Service or a person appointed to any civil service of the Union or any civil posts under the Union or a civilian not being a member of the All India Service or person referred to in Clause (c) appointed to any defence services of a post connected with defence. Clause (c) brings within the jurisdiction of the Tribunal all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in such Sub-clause (ii) or (iii) of Clause (b) being a person whose services have been placed by a State Government or any local or other authority or any Corporation or other body, at the disposal of the Central Government for such appointment.
15. The expression "recruitment" appearing in Clause (a) has not been defined in the Act but the expression "Service matters" appearing in Clause (b) has been so defined in Section 3(q) of the Act. A plain reading of the said definition leaves no manner of doubt that the expression 'service matters' includes all matters relating to conditions of service in connection with the affairs of the Union or of any State or of any local authority or other authority within the territory of India as respects remuneration, pension, retirement benefits, tenure including confirmation, seniority, promotion, reversion, premature retirement, superannuation, leave of any kind, disciplinary matters or any other matter whatsoever. There is therefore no gain said that the jurisdiction powers and authority vested in the Tribunals established under the Act is wide enough to include all possible matters relating to recruitment and service conditions of persons serving the union or the State Government or the local authority as the case may be. That a dispute regarding the method of selection or the basis on which such selection is made or the norms applied for holding the selection for purposes of appointment under the Union Government would constitute a matter concerning recruitment within the meaning of Clause (a) to Section 14(1) of the Act was not seriously questioned before us. What was argued was that even when the nature of the dispute raised, may involve recruitment or matters concerning recruitment which fall within the jurisdiction of the Central Administrative Tribunal under Section 14(1)(a) of the Act, the jurisdiction of the Tribunal could not be invoked in the absence of an order passed by the Competent Authority having regard to the provisions of Section 19 of the Act. Section 19 appearing in Chapter 4 of the Act which deals with the procedure to be followed in the matters of adjudication of disputes by the Tribunals, and upon which reliance was placed by learned Counsel for the petitioners may at this stage be extracted:
"19. Applications to Tribunals.--(1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance.
Explanation.--For the purposes of this sub-section, "order" means an order made--
(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any Corporation (or society) owned or controlled by the Government; or
(b) by an officer, committee or other body or agency of the Government or a local or other authority or Corporation (or Society) referred to in Clause (a)".
16. A bare reading of the above would show that a person aggrieved by any other pertaining to any matter within the jurisdiction of the Tribunal has to make an application to the Tribunal for redressal of his grievance. In other words, the jurisdiction vested in the Tribunal cannot be invoked except by way of an application to be filed by the person aggrieved. The term 'order' appearing in Sub-section (1) to Section 19 supra in terms of the explanation appearing under the same means an order made by any one of the authorities enumerated in Clauses (a) and (b) to the explanation. What is evident from the explanation is that far from giving any specific meaning to what would in terms of its content or form constitute an order, the explanation lays emphasis on the maker of the order. An order in terms of Section 19 and the explanation to the same is an order only if it is made by the Government or a local or other authority under the control of Government of India or by any Corporation or Society owned or controlled by the Government or is made by an officer, Committee or other body or agency of the Government or local or other authority or Corporation or society referred to in Clause (a). It is not therefore as though the expression 'Order' is defined with a view to limiting or describing the nature or the content of the orders which can give rise to a grievance or which can be made a basis for invoking the jurisdiction of the Tribunal. As to what would constitute an order in terms of its content or the form may therefore have to be examined independent of the explanation. In the absence of any indication in the Act that an order must necessarily be in a particular form or should conform to any requirement of content, effect or consequence, it cannot be said that the Tribunal's jurisdiction cannot be invoked except where there is an order in writing. The term 'order' appearing in Section 19 of the Act shall therefore have to be understood in its widest amplitude.
17. The process of selection is in the present case conducted at different stages and passes through the scrutiny of different constitutional authorities. Each stage dealt with by such authority may in the wider sense of the term constitute an order within the meaning of Section 19 which would suffice for purposes of invoking the jurisdiction of the Tribunal.
18. There is yet another angle from which the question can be examined. The jurisdiction of the Tribunal being wide and all embracing, the provisions of Section 19 which are meant to regulate the procedure for invoking the said jurisdiction cannot possibly curtail leave alone prevent the exercise of the same only on account of the absence of any procedural formality or deficiency. Procedure whether the same is prescribed for trial of cases by Civil Courts or for adjudication of disputes by Tribunals is primarily aimed at facilitating an adjudication and ensuring that the same is arrived at in a manner that is fair and just so that it inspires the confidence of all concerned. It is only when the language employed in the statute in so couched as to make a particular provision, no matter procedural in nature, mandatory that the same may be treated to be so. In order that any such procedural requirement may be mandatory, the legislation ought to prescribe the consequence flowing from the failure of the requirement or the language employed should be so unmistakably clear that no other conclusion may be possible except that the provision is mandatory. The Legislature in this regard often employs use of negative words which are an indication of the provision being mandatory in nature.
19. There is no indication in Section 19 or anywhere else in Chapter 4 to show that the requirement of a formal order is a condition precedent for the Tribunal to invoke its jurisdiction under the Act. The provisions of Section 14 on the other hand prescribe that the Tribunal shall have all the jurisdiction, powers and authority that was exercisable by any Court before the appointed date. This would imply that jurisdiction exercisable by the High Court under Article 226 of the Constitution is also exercisable from the appointed date by the Tribunal. The requirement of a formal order has never been a condition precedent for the exercise of a writ jurisdiction by the High Courts under Article 226 of the Constitution. If the Tribunals are exercising jurisdiction similar to the one that the High Courts exercise under the constitutional provision, there is no reason why any such exercise by the Tribunal should be subjected to the requirement of a formal order.
20. Even independent of what we have indicated above, the scheme of the Act and in particular the provisions of Sections 20 and 22 in our opinion make it clear that the Tribunal can entertain a petition and pass appropriate orders on the same even if no formal order has been passed by the authority competent to do so. Section 20 of the Act inter alia provides that the Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of his grievance. Sub-section (2) makes it clear that in cases where a final order has been made by the Government or other authority competent to pass such order rejecting any appeal preferred or representation made by the aggrieved person or where no final order has been made by the Government or other authority or person competent to pass such order despite the lapse of period of six months from the date on which such appeal was preferred or representation made, the person concerned shall be deemed to have availed of the remedies available to him under the relevant service rules. It is evident from Clause (h) of Section 20(2) that the Tribunal can entertain an application and pass appropriate orders even when the authority competent has not passed a formal order on the subject. This is evident even from a reading of Section 21 of the Act which prescribes limitation for exercise of jurisdiction by the Tribunal. Clause (b) to Section 21(1) envisages cases where the authority competent has not disposed of or passed any order within a period of six months from the date the appeal or representation was made. Super added to all this are the provisions of Section 22 which gives to the Tribunal the liberty of regulating its own procedure subject only to the condition that the said procedure is guided by principles of natural justice.
21. Last but not the least is the fact that the interpretation suggested by the petitioners if accepted would frustrate rather than advance the object underlying the Act by taking a large number of cases out of the jurisdiction of the Tribunal which could otherwise be entertained and decided by them only because the authority competent to pass the same has not passed a proper or formal order on the subject. There is no gain saying that the grievance of a person serving the Union Government or other authorities referred to in Sections 14 and 19 of the Act may often be against sheer inaction of the authorities rather than any affirmative action taken by them. Cases like non-consideration of claims for promotion, non-fixation of seniority, omission to grant pensionary benefits, omission to deal with other claims relating to service matters may go out of the jurisdiction of the Tribunals only because no formal orders on such claims are passed by the Competent Authorities. According to Mr. Narasimha Murthy, inaction of such kind could not be said to be without a remedy for the aggrieved civil servant. The jurisdiction of the High Court under Article 226 could argued the learned Counsel always be invoked to highlight such grievance and to seek appropriate redress. It was submitted that cases in which no formal orders were made and yet a grievance was sought to be projected could be filed only in the High Court in exercise of writ jurisdiction whereas others in which formal orders had been passed could be taken to the Tribunal concerned. We regret our inability to accept that line of argument. In our view, the scheme of the Act and the history of the legislation does not admit of any such dichotomy. The legislative intent evident from the provisions of the Act is clear and unambiguous. It envisages 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. We have therefore no hesitation in answering Question No. 1 in the negative.
22. Re: Question No. 2.--The challenge to the validity of the selection process before the Tribunal is three-fold. Even before us, the interim orders passed by the Tribunal were sought to be supported on the very same grounds, no matter the respondents have in the course of these proceedings added certain additional factual averments which were not available before the Tribunal at the time the impugned orders were passed. The sum and substance of the arguments advanced by learned Counsel for the aggrieved Officers is that the selection process is vitiated on account of an illegality committed by the authorities concerned in that names of officers who did not qualify for consideration were short-listed and placed before the Selection Committee. The contention precisely is that some of those who were short listed by the Screening Committee did not possess outstanding merit and ability which was a condition precedent for their being recommended for consideration. This according to the respondents resulted in treating unequals as equals and therefore amounted to an illegality sufficient to vitiate the entire process.
23. The alternative ground urged by the respondents alleges materials irregularity in the maintenance of the service record on the basis of which the competing claims of the candidates are being considered by the authorities. The Annual Confidential Reports constituting the very basis of selection were not recorded in accordance with the rules on the subject and were therefore inadmissible. In the absence of anything to show that apart from the ACRs, any other material was also considered by the Screening or Selection Committee, any assessment based entirely on the ACRs was bound to be erroneous and unsustainable. The constitution of the Committee in particular the absence of the senior most Divisional Commissioner from the same and the short-listing of 41 officers instead of only 40 permissible under the Regulations is also according to the respondents an irregularity which would vitiate the entire selection process.
24. The third and the only other ground of attack urged before us was that the entire selection process was vitiated on account of bias evident from the fact that a house site in Bangalore was allotted in favour of the Chairman of the Selection Committee at the instance of Sri B.S. Patil, the then Chief Secretary of the State.
25. The interim orders passed by the Tribunal do not deal with any one of the above grounds even on a prima facie basis. In its Order dated 12-12-2003, after noticing the submissions made on behalf of the applicant Mr. M.V. Thimmaiah-respondent in these writ petitions, that four of the short listed officers for consideration were mediocres whereas the ACRs of the applicant showed that he was an outstanding officer for the past five years, the Tribunal held that a prima facie case for staying the selection had been made out and accordingly stayed the same in the interest of what the Tribunal described as "justice, avoidability and multiplicity of proceedings". From the reading of the said order, all that appears to have impressed the Tribunal was that four of the officers who were short-listed along with the applicant before it did not possess outstanding merit and ability. This order was as seen earlier followed by an order dated 6-2-2004 by which Miscellaneous Application Nos. 28 and 29 of 2004 seeking vacation of the ex parte interim order were dismissed.
26. After noticing the respective submissions made by Counsels for the parties, the Tribunal observed:
"We do not intend to go into the merit of this case at this stage. The limited question which arises for consideration, at this stage, is whether there is any valid ground or justification for vacating the interim order dated 12-12-2003 passed by this Tribunal. The contention of Shri Vijay Shankar, learned Senior Advocate for respondent 6 that the condition for passing the interim order as laid down under Section 24 of the Administrative Tribunals Act, 1985, was overlooked as there was no exceptional circumstance -warranting passing of the interim order is untenable and misplaced. The averment of the applicant about his performance during his service career remains undisputed, which is one of the criteria for the selection to the post in question. The passing of the interim order was justified in view of exceptional circumstances, as the finalisation of the selection process would render the applicant's case infructuous and academic. This is more so as the validity of selection process itself is under challenge. This apart, reasons were recorded in writing while passing the interim order as required under Section 24 of the Administrative Tribunals Act, 1985.
As mentioned above, the plea of the applicant of an outstanding record vis-a-vis respondents 5 to 8 remained uncontroverted. The applicant made out a prima facie case for staying the selection.
The vacation of the interim order is not justified because, in spite of sufficient time and opportunity, respondents 2, 3 and 4 did not produce a shred of record demonstrating that the averment of the applicant about his merit vis-a-vis respondents 5 to 8 was without any substance or factually incorrect.
One of the grounds for passing the interim order was the need for avoidance of multiplicity of proceedings. The validity of this stand in passing the interim order is vindicated by that the fact that already 10 cases are pending before this Tribunal concerning the selection from non-State Civil Service Officers of Government of Karnataka to I.A.S. The balance of convenience and avoidance of irreparable damage would lie in continuing the interim order.
XXX XXX XXX XXX XXX XXX In the light of this discussion, it will not be in the interest of justice to vacate, modify or recall the said interim order dated 12-12-2003 at this stage.
Accordingly, M.A. Nos. 28 and 29 of 2004 are rejected".
(emphasis supplied) It is manifest from the reading of the above that the Tribunal has maintained the ex parte order granted earlier on three precise grounds viz., (i) That the averments made by the applicant regarding his merit and ability vis-a-vis that of respondents 5 to 8 remain uncontroverted by any record to the contrary, (ii) That the refusal of an interim order would render the case of the applicant infructuous. (iii) That an interim stay of the ongoing process was necessary to prevent multiplicity of proceedings.
27. Insofar as latter of the two grounds stated by the Tribunal are concerned, we do not see any real basis for the view taken by "the Tribunal inasmuch as the applications filed before the Tribunal could not have been rendered infructuous merely because the selection process was allowed to go through and an order of appointment allowed to be made. We say so because any order based on the selection process and validity and regularity whereof was under challenge before the Tribunal would have remained subject to the ultimate outcome of the said proceedings. The question whether the selection process was affected by any illegality or any irregularity could be examined and the appointment made set aside if the Tribunal were to come to the conclusion that the selection was illegal and therefore unsustainable.
So also the stay of the selection process could not have possibly prevented multiplicity of proceedings especially when all such short-listed candidates as had any grievance against the process had already filed applications before the Tribunal, the grievances made wherein could be looked into and suitably redressed by the Tribunal after hearing the parties.
28. In coming to the conclusion that the applicant before it had made out a prima facie case for the grant of interim order of stay, the solitary reason which weighed with the Tribunal was that the applicant's claim regarding his being a person of outstanding merit and ability vis-a-vis respondents 5 to 8 had not been disputed. That observation of the Tribunal unwittingly placed it in the role of an Appellate Authority sitting in judgment over the assessment made by the Selection Committee. The Committee had on the basis of the available service record of the officers sent up for consideration and on the basis of the performance of the candidates in the interview assessed their merit to choose eight of the officers who are in its opinion best out of the lot. So long as the applicant's claim had been considered objectively and fairly and so long as no mala fides were alleged against the members of the Committee, the assessment of merit by them had to be respected. The legal position in regard to the role of a Court or Tribunal examining the validity of a selection is fairly well-settled by the decisions of the Supreme Court. Whether or not a candidate is fit for a particular post has to be decided only by the authority charged with the duty of making a selection. The decision of the authority or the Committee is open to challenge only on the grounds or illegality, patent or material irregularity in the constitution of the Committee or its procedure or proved mala fides affecting the selection. In Dalpat Abasaheb Solunke's case, their Lordships explained the role and the function of the Court in the following words:
"It is not the function of the Court to hear appeals over the decisions of the Selection Committee and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duty constituted Selection Committee which has the expertise on the subject. The Court has not such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the instant case of the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant materials before it. Therefore setting aside the selection on the ground of the so-called comparative merits of the candidates, as assessed by the Court while sitting in appeal over selection so made would not be permissible".
29. To the same effect is the decision of the Supreme Court in Ashutosh Kumar Srivastava's case. The Tribunals had in that case proceeded to make its own assessment of the experience of one of the candidates as a trainee for a commissioned post in the defence services and awarded marks in his favour different from the ones awarded by the Selection Committee. It also sat in judgment over the assessment of the academic and technical qualifications and issued directions after substituting its own assessment for that of the Committee. The Supreme Court disapproved that approach in the following words:
"So long as the bias of the Selection Committee could not be proved, the only aspect that the Tribunal ought to have considered was whether there was compliance with the relevant rules in the conduct of interview. The Tribunal ought to have considered the matter in the right perspective by considering the various contentions raised in the matter and not sit in judgment over the interview and allotted marks on its own and given the directions in the manner it did".
It would therefore appear that the Tribunal misdirected itself in the present case by arrogating to itself a role which did not belong to it. Comparison of the merit of candidates inter se did not legitimately fall within the jurisdiction of the Tribunal so long as the process of assessment was free from any malice or other irregularity. No such irregularity was indeed pointed out by the Tribunal even prima facie which could possibly lead one to the conclusion that the Selection Committee had failed to maintain the standard of objectivity expected of it. The Selection Committee comprised persons who possessed the requisite knowledge, experience and expertise to assess the service records and to adjudge the suitability of those short-listed by the State Government. Besides where power is vested in a high authority like the one in the instant case a presumption arises that the same would be exercised in a reasonable manner. That presumption is however rebuttable for if proved that the selection was arbitrary or vitiated by extraneous considerations, the Courts can always strike down the same. See R.S. Dass case.
30. There is yet another angle from which the matter can be examined. The selection process in the instant case was regulated by statutory regulations which provide for various checks and balances to ensure objectivity in the entire process. The selection goes through scrutiny at different levels and till such time the select list is approved by the Central Government, the assessment and the opinions expressed by the statutory authorities that have a say in the matter are no more than recommendations. Courts have discouraged if not deprecated interference with such recommendations while they have yet to culminate in proper appointments. In Dr. G. Sarana v. University of Lucknow and Ors., , the challenge was to the recommendations made by the Selection Committee appointed by the Lucknow University for appointment of a Professor in the faculty of Arts in the said University. The High Court had dismissed the writ petition against which order the matter was brought upto the Supreme Court in appeal. Dismissing the appeal, their Lordships observed:
"It is also difficult to understand how the writ petition or for that matter the present appeal before us is maintenance when the recommendation of the Selection Committee has still to be scrutinized by the mendation of the Selection Committee has still to be scrutinized by the Executive Council of the University and either accepted or rejected by it and other remedies by way of representation to the Executive Council and an application for reference of the matter under Section 68 of the Uttar Pradesh Universities (Re-enactment and Amendment) Act, 1974, to the Chancellor are still open to the appellant and have not been exhausted".
31. To the same effect is the decision of the Supreme Court in Mrs. Kunda S. Kadam and Ors. v. Dr. K.K. Soman and Ors.,, where too the challenge in the writ petition was to recommendations on the ground that the candidate recommended did not have the necessary qualification. Reversing the decision of the Bombay High Court, their Lordships held that since the normal procedure of the recommendation being considered by the Corporation had not been completed, any writ petition challenging the recommendations made to the Corporation on the ground of eligibility of the recommended candidate was premature. The following passage is in this regard apposite:
"We consider that the time has not arrived for the Court to adjudicate upon the merits and that the writ petition itself was premature. The normal procedure should have been for the recommendation of the Public Service Commission to be considered by the Corporation. It was open to the Municipal Corporation to accept the recommendation or not to accept the recommendation. The learned Attorney General, appearing for the Corporation, says that it was open to the Corporation to ask for other names and make its own choice. We are not called upon to state what the powers of the Corporation in such a situation are. It was also open to the State Government even if the Corporation had made an appointment to confirm or not to confirm it, depending on its own view of the matter. We mention all this only to emphasise that it was too early for a writ petition to be entertained and decided on the merits".
32. Suffice it to say that although the applications filed before the Tribunal against the selection process were maintainable even before the issue of any formal orders of appointment by the Competent Authority, yet the Tribunal had to be careful in exercising its jurisdiction in the matter. It may not indeed have been a case of quorum non judis as contended by the petitioners but the order of stay passed by the Tribunal was certainly a case of improper exercise of jurisdiction vested in it to the extent the Tribunal sat in judgment over the assessment made by the Selection Committee and stopped the ongoing process just because in its opinion the applicant before it was more meritorious than respondents 5 to 8. That approach was not in our opinion legally sound in the light of the well-settled legal position referred to earlier.
33. Considerable time was taken by the learned Counsels for the parties in debating whether or not the selection process was fair and objective, apart from pointing out that the constitution of the Committee itself was not in accordance with the regulations. All this was intended to support the impugned orders on a basis other than the one that prevailed with the Tribunal. We do not wish at this stage to deal with the various facets of the challenge urged before us for doing so may amount to prejudging the issues that have to be examined by the Tribunal at the appropriate stage. All that we need say is that having given serious thought to the points urged and having regard to the compulsions of public interest, fairness and equity, we do not think that stalling of the selection process was the only option that could meet and ends of justice and yet be legally sound and permissible. We need hardly mention that while the points urged by the short-listed candidates in support of their challenge may be arguable, the same on a prima facie examination of the matter fall short of creating an impression that the selection process will be an exercise in futility because of any patent illegality, bias or irregularity as alleged. Even the allegations made by the applicants regarding the bias of the Chairman of the Selection Committee and Sri B.S. Patil, the then Chief Secretary are fragmented and are neither effectively pleaded in the application nor prima facie proved to have affected the selection process. Although applications seeking amendment of the petitions before the Tribunal to incorporate particulars of the allegations of bias and mala fides appear to have been made, the fact remains that bias was not on the date the impugned orders were passed, an issue that was seriously canvassed before the Tribunal or taken note of by it. We do not therefore consider it necessary at this stage to express any opinion about the propriety of the Chairman of the Committee making a request for allotment of a site in Bangalore or the legitimacy of the process by which the allotment was made to look so easy. We need say that even in that area, the applicants before the Tribunal will have to plead and prove the requisite facts that would show that the allotment was motivated to win the favours of the Chairman and to give to Sri B.S. Patil an additional leverage to have the men of his choice pushed through for inclusion in the Indian Administrative Service. We are told that the allotment of the land in favour of the Chairman of the Selection Committee is the subject-matter of a separate public interest litigation. That is an additional reason why we do not wish to make any further observations in the matter.
34. In the totality of the above circumstances, therefore, these writ petitions are allowed but only to the limited extent that the interim orders dated 12-12-2003 and 6-2-2004 made by the Tribunal shall stand vacated. The prayer for writ of prohibition against the Tribunal shall however stand rejected and writ petition to that extent dismissed. The selection process can consequently be taken to its logical conclusion subject to the condition that the final orders if any issued by the Competent Authority shall remain subject to the ultimate result of the petitions before the Tribunal. To allay the apprehensions expressed by some of the parties that the matter may drag on indefinitely, the Tribunal shall be free to take such measures as are necessary to ensure that the applications before it are finally disposed of at an early date and as far as possible within a period of six months from today. Needless to say that the parties shall extend all co-operation to the Tribunal in this regard. No costs.