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Tuesday, October 22, 2013

Though the appellant is eligible for consideration of the selection in to IAS - she was denied as she was a junior officer - not correct approach and against the rules and guidelines - B. Amrutha Lakshmi … Appellant Versus State of Andhra Pradesh and Ors. … Respondents= judis.nic.in/supremecourt/filename=40890

Though the appellant is eligible for consideration of the selection in to IAS - she was  denied as she was a junior officer - not correct approach and against the rules and guidelines = Apex court held wrong but due to lapse of time the apex court granted damages instead of disturbing processes already taken over long back=

the right of the  appellant  for  being
considered for the selection into the Indian Administrative  Services  (IAS)
from the Non-civil services in the state of Andhra Pradesh.  =
In  the  present  case,  the  Commissioner  did  not
      strictly go by rule of seniority among the eligible  officers  in  the
      Commercial Taxes Department.  The course adopted by him is that  since
      a large number of officers have to be forwarded going by the  criteria
      of eligibility as per Regulation  4  (iii)  and  G.O.Ms  No.  634,  he
      restricted the zone or level of officers for  consideration  upto  the
      level of Additional Commissioners and Joint Commissioners.  Thus  this
      is a case where the seniority rule has not been followed but the  zone
      of consideration has been restricted upto a particular level…….” 
 whether   such   a
restriction  of  the  candidates  to  be  considered,  who  were   otherwise
eligible, was permissible under the rules.  =

At the relevant time, she  was  working  as  the  Assistant
Commissioner of the  Sales  Tax,  and  she  satisfied  all  the  eligibility
criteria, yet the Principal Secretary,  Department  of  Revenue  (Commercial
Tax)  Department,  Hyderabad,  Andhra  Pradesh,  and  the  Commissioner   of
Commercial Taxes, Hyderabad,  Andhra  Pradesh,  respondent  Nos.   2  and  3
respectively, restricted the  zone  of  consideration  only  to  the  higher
officers amongst the eligible candidates viz., to the Joint  and  Additional
Commissioners of the Commercial Tax Department.
The
case of the appellant is that, though she was eligible for being taken  into
the panel for consideration, she lost her opportunity due to  the  erroneous
interpretation of the relevant rules by  the  respondent  No.  1,  State  of
Andhra Pradesh. 

However, once a candidate comes into  the  zone  of
consideration,  and  satisfies  all  the  requirements,  including  that  of
outstanding merit and ability, he cannot be told that merely because  he  is
junior in the seniority, his name will not be forwarded  for  consideration.
The rule requires that from amongst the outstanding officers, 15  names  are
to be forwarded to the Central Government, and hence  it  is  possible  that
amongst these 15, a junior officer may as well figure,  depending  upon  the
assessment of his merit.  He cannot be eliminated merely on the ground  that
he is a junior officer, and that if selected he will write the ACRs  of  his
superiors.

 In  the  circumstances  we  allow  this  appeal,  set-aside  the
impugned judgment and order of the High Court as  well  as  of  the  Central
Administrative Tribunal, modify the relief as prayed in the O.A.,  and  hold
that the decision of the Respondents not to consider the appellant  for  the
selection, amounted to  her  being  treated  dissimilarly,  though  she  was
situated similarly to the recommended officers.  The decision was  violative
of Article 14 and Article 16(1) of the Constitution, since  it  was  arrived
at on the basis of a criterion  which  was  not  laid  down.   However,  the
selection for the year 2011 was over, even before  the  interim  application
in the CAT was decided.  Setting aside  the  selection  conducted  some  two
years  back,  and  asking  the  respondents  to  re-do  the  exercise  after
considering the appellant and other  similarly  situated  candidates,  would
create lot of uncertainty, in as  much  as  the  appellant  and  such  other
similarly situated candidates, might or might not  finally  succeed  in  the
selection process. Hence, it will  not  be  proper  now  to  set  aside  the
selection of the selected candidates.  Therefore,  though  this  declaration
is being granted, viz. that the appellant  and  persons  situated  like  her
were entitled to be considered by the committee, no further relief  in  that
behalf can be granted to them.  The opinion rendered  by  us  will  have  to
operate prospectively in the matter of application of the  concerned  rules,
for the future selections.  Hence, this appeal is being allowed in part.
21.         We cannot, however, ignore that the appellant had to  resort  to
this litigation for no fault of hers.  
The non consideration  of  her  claim
was totally unjust.  
Hence, even though for the reasons that we have  stated
earlier, the appellant can not get the relief in the nature of  a  direction
to consider her for the selection which she had sought,  she  must  get  the
damages for non-consideration on  unjust  grounds.   
This  is  because,  the
Commissioner  for  Commercial  Tax  had  acted  to  reduce   the   zone   of
consideration, contrary  to  the  rules,  and  inspite  of  a  letter  dated
1.7.2010 from the Principal Secretary Revenue (CT-I) Department,  which  had
clarified that the Commissioner may  send  the  proposals  of  the  eligible
candidates of the cadre of Assistant Commissioners and above,  who  were  of
outstanding merit. 
The  award  of  damages  is  necessary  also  because,  a
message must go down that those who are responsible  for  administration  of
the State cannot trample upon the rights of others on the grounds which  are
unsustainable in law.   
We, therefore, direct the State  of  Andhra  Pradesh
to pay the damages of rupees fifty thousand to the appellant. 
 This will  be
over and above the litigation cost of rupees twenty five thousand, which  we
hereby award.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO. 9193   OF 2013
          (@ out of SPECIAL LEAVE PETITION (CIVIL) NO. 23761/2011)


B. Amrutha Lakshmi                                 …   Appellant

                                    Versus

State of Andhra Pradesh and Ors.                   …   Respondents

                                    WITH

                       CIVIL APPEAL NO. 9194   OF 2013
          (@ out of SPECIAL LEAVE PETITION (CIVIL) NO. 16042/2012)

Irrinki Srinagesh                                        …   Appellant

                                    Versus

State of Andhra Pradesh and Ors.                   …   Respondents


                             J U D G  E M E N T


H.L. Gokhale J.

            Leave Granted.

2.          We will first deal with the facts and legal submissions  of  the
first SLP (C)  23761  of  2011.  This  appeal  by  Special  Leave  seeks  to
challenge the judgment and order dated 31.12.2010, rendered  by  a  Division
Bench of the Andhra Pradesh High Court  in  Writ  Petition  No.  32290/2010,
dismissing the same.  The said Writ Petition sought to challenge  the  order
passed  by  the  Central  Administrative  Tribunal  (CAT)  Hyderabad,  dated
20.12.2010, on the  Interim  Application  moved  by  the  appellant  in  her
Original Application No. 1291/2010,  wherein,  the  CAT  rejected  the  said
Interim Application.
      Facts leading to this appeal are as follows:-
3.          The appeal is concerning
the right of the  appellant  for  being
considered for the selection into the Indian Administrative  Services  (IAS)
from the Non-civil services in the state of Andhra Pradesh.  
The  selection
into the IAS is governed by  the  All  India  Services  Act  1951,  and  IAS
(Recruitment) Rules 1954.
There are three sources for being  selected  into
the IAS as per the IAS (Recruitment) Rules 1954.  
They are:- 
(i)  by  direct recruitment; 
(ii) by promotion of a substantive  member  of  a  state  civil service and 
(iii) by selection from amongst those persons who hold  gazetted
posts in substantive capacity in connection with the affairs of  the  State,
and who are not members of a State Civil Service.
4.          The vacancies in the IAS cadre for  each  particular  State  are
notified by the Central Government.  In the present case, we  are  concerned
with the three vacancies meant for category (iii) above  viz.  the  officers
of Non State Civil Services, which were notified for  the  year  2011.   The
case of the appellant is that, though she was eligible for being taken  into
the panel for consideration, she lost her opportunity due to  the  erroneous
interpretation of the relevant rules by  the  respondent  No.  1,  State  of
Andhra Pradesh.  At the relevant time, she  was  working  as  the  Assistant
Commissioner of the  Sales  Tax,  and  she  satisfied  all  the  eligibility
criteria, yet the Principal Secretary,  Department  of  Revenue  (Commercial
Tax)  Department,  Hyderabad,  Andhra  Pradesh,  and  the  Commissioner   of
Commercial Taxes, Hyderabad,  Andhra  Pradesh,  respondent  Nos.   2  and  3
respectively, restricted the  zone  of  consideration  only  to  the  higher
officers amongst the eligible candidates viz., to the Joint  and  Additional
Commissioners of the Commercial Tax Department.
5.          The appellant, therefore, filed Original  Application  No.  1291
of 2010 before the Central Administrative Tribunal (CAT) and prayed for  the
following main reliefs:-
            “1.) This Hon’ble court may  be  pleased  to  declare  that  the
   action of the 3rd respondent in not considering the case of the applicant
   for being  proposed  for  appointment  to  I.A.S.,  in  terms  of  I.A.S.
   (appointment by selection) Regulation 1997 is illegal and is contrary  to
   and violation of  Regulation  4  of  I.A.S.  (appointment  by  selection)
   Regulation 1997 and is also violative of Article 14, 16  and  21  of  the
   Constitution of India.
            2).  This Hon’ble Tribunal may be pleased to declare the  action
   of the 5th respondent in not forwarding the name of the applicant to  3rd
   respondent is illegal and contrary to G.O.Ms NO. 634 dated 24.8.2007  and
   is also contrary to Regulation  No.  4  (1)  of  I.A.S.  (appointment  by
   selection) Regulation 1997.
            3).  This Hon’ble  Tribunal  may  be  pleased  to  declare  that
   applicant is entitled to be considered by the Committee  (as  constituted
   under Regulation 3) by 2nd  respondent  for  appointment  to  I.A.S.,  by
   selection based on her outstanding merit and ability and pass such  other
   order or orders as this Hon’ble Tribunal may deem fit and proper  in  the
   circumstance of the case.”

6.          The appellant  prayed  for  the  interim  order  which  read  as
follows:-
                 “In the above circumstances this Hon’ble  Tribunal  may  be
    pleased to direct the 2nd respondent not to convene the meeting of  the
    Committee and not to  consider  the  case  of  any  other  candidate(s)
    proposed by the 3rd respondent for appointment to I.A.S.  by  selection
    (of A.P. State Non-SCS Officers), pending disposal of  O.A.,  and  pass
    such other order or orders as this Hon’ble Tribunal may  deem  fit  and
    proper in the circumstances of the case.
                 In the alternative direct the 3rd  respondent  to  consider
    and propose the name of the applicant  for  consideration  by  the  2nd
    respondent for appointment by  selection to I.A.S. before the cases  of
    other candidates are considered and pass such other order or orders  as
    this Hon’ble Tribunal may deem fit and proper in the  circumstances  of
    the case.”
        7. The CAT, however, declined to grant the interim relief that  the
           appellant had prayed for.  The appellant therefore, carried  the
           matter to the Andhra Pradesh High Court, where  the  High  Court
           has held the restriction of the  zone  of  consideration  to  be
           valid.  Being aggrieved by this order, the appellant  has  filed
           this appeal by Special Leave.
        8. Mr. P.S. Narshimha, learned  senior  counsel  appeared  for  the
           appellant, Mr. A.T.M.  Rangaramanujam,  learned  senior  counsel
           appeared for the first respondent State of Andhra  Pradesh,  and
           the Principal Secretary to the Department of Revenue (Commercial
           Taxes) Andhra Pradesh, and the Commissioner of  Commercial  Tax,
           Andhra Pradesh.  Mr. P.P. Malhotra, Additional Solicitor General
           has appeared for  respondent  No.  4  Union  of  India  and  Mr.
           Radhakrishnan, learned senior counsel for respondent No. 5 Union
           Public Service Commission.
        9. It was pointed out by Mr. Narshimha,  learned  counsel  for  the
           appellant, that the relevant regulations for our purpose are the
           I.A.S. (Appointment by Selection) Regulations, 1997.  Clause No.
           3, regulation Nos.  3  and  4  thereof,  are  relevant  for  our
           purpose.  Regulation 3 deals with the determination of vacancies
           to be filled.  Regulation No. 4 lays down the provisions for the
           State Government to send  proposals  for  consideration  of  the
           committee  referred  to  in  regulation  No.  3,  which  is  the
           committee constituted under  regulation  No.  3  of  the  Indian
           Administrative Services (Promotion by  Appointment)  Regulations
           1955.  These two regulations Nos. 3 and 4 read as follows:-
          “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:-
      (1) The State Government shall consider the  case  of  a  person  not
    belonging to the State Civil Service but serving in connection with the
    affairs of the State who,
      i) is of outstanding merit and ability; and
      ii) holds a Gazetted post in a substantive capacity; and
      iii) has completed not less than 8 years of continuous service  under
    the State Government on the first day of January of the year  in  which
    his case is being considered  in  any  post  which  has  been  declared
    equivalent to the post of Deputy Collector in the State  Civil  Service
    and propose the person for consideration of the Committee.  The  number
    of persons proposed for consideration of the Committee shall not exceed
    five times the number of vacancies proposed to  be  filled  during  the
    year.
    Provided that the State Government shall not consider  the  case  of  a
    person who has attained the age of 54 years on the first day of January
    of the year in which the decision is taken to propose the names for the
    consideration of the Committee.
    Provided also that the State Govt 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.”

10.   As can be seen from these two regulations, the Central Government  has
to determine the number vacancies for which recruitment  may  be  made  each
year, which is to be done in consultation with the  State  Government.   The
number of vacancies to  be  determined,  shall  not  exceed  the  number  of
substantive vacancies, as on the first day of January of the year, in  which
the meeting of the selection committee  is  held.   Regulation  No.  4  lays
down, that the State Government has to send the proposal  for  consideration
of  the  committee.
 It  is  important  to  note  that  while  sending   the
recommendations from Non Civil Services section, the Government has  to  see
that (i) the person concerned is a person of outstanding merit and  ability,
(ii) he holds a Gazetted post  in  a  substantive  capacity,  (iii)  he  has
completed at least 8 years  of  continuous  service  on  the  first  day  of
January of the year in which his case is being considered, (iv)  the  person
must belong to a post which has been declared  equivalent  to  the  post  of
Deputy Collector in the State Civil  Service,  (v)  the  number  of  persons
proposed for consideration of the committee shall not exceed five times  the
number of vacancies, and (vi) the persons to be recommended should not  have
attained the age of 54 years on the first day of January  of  that  year  in
which the names are considered by the committee.
11.   As far as the  equivalence  with  the  post  of  Deputy  Collector  is
concerned, the Andhra Pradesh Government came out with a G.O.Ms No.  634  of
the General  Administration  (Special  Department)  dated  24.8.2007,  which
provided as follows:-
                       “NOTIFICATION

             In  supersession  of  the  order  issued  in  G.O.Ms,   General
   Administration (Special.A) Department,  Dated:  08.06.2006,  G.O.Ms.  No.
   807, General Administration (Special A)  Department,  Dated:  23.12.2006,
   read with G.O.Ms No. 63 General Administration  (Special  A)  Department,
   Dated: 08.02.2007, and in the exercise of  powers  conferred  under  sub-
   regulation (iii) of regulation 4(1) of the Indian Administrative  Service
   (Appointment by  Selection)  Regulations,  1997,  the  Government  hereby
   declare that, all the post carry the scale of pay  of  Rs.  10,845-22,995
   and above (revised scales of 2005) in all the departments under the Govt.
   of Andhra Pradesh, barring the services viz. (i)  State  Police  Service,
   (ii) State Forest Services, and (iii) Judicial Service, are equivalent to
   the post of Deputy Collector in the State Civil Service for  the  limited
   purpose in regulation ibid.  Officers  who  have  completed  8  years  of
   continuous service in the said scale as on 1st  January of the  year  for
   which selection is made and are substantive in the above scale of pay  as
   stipulated in  IAS  (Appointment  by  Selection)  Regulations  1997,  are
   eligible for consideration.
        (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)

                                                               J.HARI NARYAN
                                               CHIEF SECRETARY TO GOVERNMENT

12.   Thus, as can be seen,  sub-regulation   (iii)  of  regulation  4  (1),
referred to above,  includes all the posts which carry the scale of  pay  of
Rs. 10,845-22,995 and above, and  (ii)  persons  from  all  the  departments
under the Government of Andhra Pradesh except State  Police  Service,  State
Forest Service and Judicial Service are  eligible  to  be  considered.   The
notification declared such posts to be equivalent  to  the  post  of  Deputy
Collector in the State Civil Service, for the limited purpose  specified  in
the Regulations. The Principal  Secretary  to  the  Government  accordingly,
wrote to the different departmental heads to send the  full  particulars  of
eligible Non Civil Services officers who fulfill the criteria.   In  para  4
of this letter he specifically stated as follows:-
            “4.  The Regulations stipulate that the Non-SCS Officers to  be
    considered for selection should be of outstanding  merit  and  ability.
    This aspect should be thoroughly ensured before sending the  proposals.
    An Officer who  is  facing  disciplinary  enquiries  and  against  whom
    adverse remarks are recorded in the  ACR  or  whose  integrity  is  not
    certified, cannot unequivocally be said to be of outstanding merit  and
    ability.”

13.         The Commissioner  of  Commercial  Tax,  Andhra  Pradesh  by  his
letter dated 18.6.2010 sought  a  clarification  whether  all  the  eligible
officers  in  the  cadre  of  Assistant  Commissioner  and  above  would  be
considered as eligible, if they were of substantive ability,  had  completed
the minimum years of service, and had not crossed the age of 54 years as  on
1.1.2010. The Commissioner got a reply that the necessary  instructions  may
be adhered  to  scrupulously.  He  subsequently  got  another  letter  dated
1.7.2010 from the Principal Secretary, of  the  Revenue  (CT-I)  Department,
that the names of officers from  the  cadre  of  Assistant  Commissioner  of
Commercial Taxes and above, who are of outstanding merit and  are  eligible,
may be forwarded.  It so happened,  that  the  names  which  were  sent  for
consideration were, however, only of the Joint Commissioners and  Additional
Commissioners and not Assistant Commissioners.  It is, therefore,  that  the
appellant filed the above  Original  Application  and  applied  for  interim
relief which came to be  declined,  and  the  order  of  the  CAT  was  left
undisturbed by the High Court. This has led to the present Civil appeal.
14.         According to Mr. Narshimha, the relevant rules were very  clear,
and the appellant satisfied all those requirements.   The  appellant  was  a
Gazetted Officer in a substantive capacity, and she had completed more  than
8 years of continuous service as an  Assistant  Commissioner  of  Sales  Tax
which was a post declared to be equivalent to the post of Deputy  Collector.
 She had not completed the age of 54 years, and there was no  dispute  about
her outstanding merit and ability.  The CAT, however,  rejected  the  prayer
for interim relief, solely on the ground that by the  time  the  matter  was
considered by the  CAT,  the  selection  had  already  been  completed,  and
therefore, the interim prayer as sought could not be granted.  In  the  High
Court,  it  was  however  contended  on  behalf  of  the  Commissioner   for
Commercial Tax, that if the criterion was  to  be  applied  as  it  is,  the
number of officers to be  considered  from  the  Commercial  Tax  Department
itself would be more than 300.  It was submitted that there are  in  all  30
departments in the State Government, and  therefore,  the  Commissioner  and
other heads of department were well within their power to restrict the  zone
of consideration up to a particular level,  from  which  the  names  may  be
forwarded.  It was also pointed out on behalf of  the  Government  that,  if
the criterion as insisted by the appellant was applied, some of the  persons
of the rank of Assistant Commissioners  or  Deputy  Commissioners  will  get
selected, they will become superior to Joint and  Additional  Commissioners,
and will write the Annual Confidential Reports of  such  officers  who  were
presently holding posts higher to them. The High Court posed  the  question,
as to whether the names of these  junior  officers  should  be  mechanically
forwarded. In paragraph 19 of the judgment the High Court held as follows:-
                 “19.   In  the  present  case,  the  Commissioner  did  not
      strictly go by rule of seniority among the eligible  officers  in  the
      Commercial Taxes Department.  The course adopted by him is that  since
      a large number of officers have to be forwarded going by the  criteria
      of eligibility as per Regulation  4  (iii)  and  G.O.Ms  No.  634,  he
      restricted the zone or level of officers for  consideration  upto  the
      level of Additional Commissioners and Joint Commissioners.  Thus  this
      is a case where the seniority rule has not been followed but the  zone
      of consideration has been restricted upto a particular level…….”

15.         Again, in paragraph  23,  the  High  Court  observed  that  just
because the  appellant  officers  satisfy  the  criteria  and  are  eligible
officers, their names could not be forwarded. This is because the number  of
vacancies  to  be  filled  was  3,  and  the  number  of  candidates  to  be
recommended will be 5 times that  number  i.e.  15  only.   The  High  Court
therefore, held that the Commissioner of Commercial Taxes had the  power  to
restrict the zone of consideration in sending the names above the  level  of
Additional Commissioners and Joint Commissioners. The  Writ  Petition  filed
by the appellant was, therefore, dismissed.

16.         It is material to note, that a counter affidavit has been  filed
on behalf Government of Andhra Pradesh, where in para  4  it  is  stated  as
follows:-
                 “4.   I say and submit that there may be  large  number  of
    officers  who  will  meet  above  eligibility  but  number  has  to  be
    restricted to five times  the  vacancies  for  consideration  from  all
    departments put  together.   Commercial  Taxes  Department  is  one  of
    departments in the State.  There are more than 30  departments  in  the
    State.  There were only (3) vacancies.  Hence maximum number that could
    be considered by  the  Committee  was  (15)  for  all  departments  put
    together.  In order to have healthy competition and to avoid  unhealthy
    competition, out of all eligible persons having outstanding  merit  and
    ability, persons having highest seniority were recommended. …”

17.          The  question  for  our  consideration  is
  whether   such   a
restriction  of  the  candidates  to  be  considered,  who  were   otherwise
eligible, was permissible under the rules. 
 It  is  not  disputed  that  the
petitioner was very much eligible for being considered, and  there  were  so
many  similar  eligible  candidates.   It  was  being   portrayed   by   the
respondents that from every department 300 persons were eligible, and  there
are 30 departments and therefore, the number would  go  to  some  9,000  and
above.  Now, what is to be noted is that  all  that  the  eligible  officers
concerned have, is a limited right of being considered, though they  do  not
have a right of promotion, as held in Shankarsan Dash  Vs.  Union  of  India
1991 (3) SCC 47.  Mr. Narshimha submitted that  this  limited  right  should
not be denied to the candidates like the appellant,  on  the  basis  of  the
ground that in such a  case  a  large  number  of  names  will  have  to  be
forwarded.  That apart, he submitted that there was  no  substance  in  this
justification, and it was merely a bogie.  This is because  what  the  State
Government had to do  first  was  to  find  out  as  to  who  fulfilled  the
criteria.   Undoubtedly,  a  large  number  of  persons  will  fulfill   the
criteria, being Gazetted Officers with more than 8  years  of  service,  and
less than 54 years of age on the relevant date.  They would also have to  be
in the required pay scale.  
However,  as  stated  in  paragraph  4  of  the
Principal Secretary’s letter, while considering the  outstanding  merit  and
ability, those with adverse remarks and those facing departmental  enquiries
were to be excluded.
Therefore, there was no difficulty in  excluding  such
persons on those grounds.  
Thereafter, what remained to be seen  was  as  to
who were the persons with outstanding ability and merit  amongst  them?
The
State Government maintains their annual  appraisal  reports,  and  for  such
selection it lays down some criteria of maintaining  the  outstanding  merit
and ability over certain  period  viz.  that  in  previous  five  years  the
officer must have 3 outstanding reports, or that in  the  previous  3  years
the officer concerned must have all throughout an  outstanding  rating  etc.
It is for the  State  Government  to  lay  down  by  rules  as  to  how  the
outstanding merit and ability is to be assessed, and over how  much  period.
After all these tests are applied, the number of persons to  be  recommended
will not be very large.  However, once a candidate comes into  the  zone  of
consideration,  and  satisfies  all  the  requirements,  including  that  of
outstanding merit and ability, he cannot be told that merely because  he  is
junior in the seniority, his name will not be forwarded  for  consideration.
The rule requires that from amongst the outstanding officers, 15  names  are
to be forwarded to the Central Government, and hence  it  is  possible  that
amongst these 15, a junior officer may as well figure,  depending  upon  the
assessment of his merit.  He cannot be eliminated merely on the ground  that
he is a junior officer, and that if selected he will write the ACRs  of  his
superiors.
18.         We have got to accept that, if the rules for  selection  contain
a requirement, the same has to be applied uniformly and strictly,  and  none
from the eligible group can be  eliminated  from  being  considered  on  any
criteria, other than those which are provided in the rules.  If there  is  a
criteria laid down for selection, the Administration has to confine  to  the
same, and it cannot impose an additional criterion over and  above  whatever
has been laid down.  If that is done, it will no longer remain  an  exercise
of discretion, but will result into discrimination. It  will  mean  treating
similarly situated employees dissimilarly, and denying equal opportunity  to
some of them in the matter of public employment on the basis of a  criterion
which is not laid down, resulting into violation of Articles 14 and  Article
16(1) of the Constitution of India. If the rules were  to  provide  that  in
the event of large number of persons coming into the zone of  consideration,
the names of the senior most alone will be forwarded,  then  it  would  have
been a different situation.  In the absence any such  restrictive  rule,  as
in the present case, the decision of the respondents cannot be justified.
19.         In view of the reasons stated above, we accept  the  submissions
canvassed on behalf of the appellant.  The prayers in the O.A. filed by  the
appellant were negatively worded viz. to declare  that  the  action  of  the
respondents not to consider the case of the appellant, and  not  to  forward
her name, was illegal.  In a way it was a prayer for a positive  declaration
viz., that the appellant and persons situated like her were entitled  to  be
considered by the committee, if they are otherwise eligible. We are  of  the
view that, the appellant is entitled to such a positive  declaration,  which
order takes care of the prayer as made in the Original Application.
20.         In  the  circumstances  we  allow  this  appeal,  set-aside  the
impugned judgment and order of the High Court as  well  as  of  the  Central
Administrative Tribunal, modify the relief as prayed in the O.A.,  and  hold
that the decision of the Respondents not to consider the appellant  for  the
selection, amounted to  her  being  treated  dissimilarly,  though  she  was
situated similarly to the recommended officers.  The decision was  violative
of Article 14 and Article 16(1) of the Constitution, since  it  was  arrived
at on the basis of a criterion  which  was  not  laid  down.   However,  the
selection for the year 2011 was over, even before  the  interim  application
in the CAT was decided.  Setting aside  the  selection  conducted  some  two
years  back,  and  asking  the  respondents  to  re-do  the  exercise  after
considering the appellant and other  similarly  situated  candidates,  would
create lot of uncertainty, in as  much  as  the  appellant  and  such  other
similarly situated candidates, might or might not  finally  succeed  in  the
selection process. Hence, it will  not  be  proper  now  to  set  aside  the
selection of the selected candidates.  Therefore,  though  this  declaration
is being granted, viz. that the appellant  and  persons  situated  like  her
were entitled to be considered by the committee, no further relief  in  that
behalf can be granted to them.  The opinion rendered  by  us  will  have  to
operate prospectively in the matter of application of the  concerned  rules,
for the future selections.  Hence, this appeal is being allowed in part.
21.         We cannot, however, ignore that the appellant had to  resort  to
this litigation for no fault of hers.  
The non consideration  of  her  claim
was totally unjust.
Hence, even though for the reasons that we have  stated
earlier, the appellant can not get the relief in the nature of  a  direction
to consider her for the selection which she had sought,  she  must  get  the
damages for non-consideration on  unjust  grounds.   
This  is  because,  the
Commissioner  for  Commercial  Tax  had  acted  to  reduce   the   zone   of
consideration, contrary  to  the  rules,  and  inspite  of  a  letter  dated
1.7.2010 from the Principal Secretary Revenue (CT-I) Department,  which  had
clarified that the Commissioner may  send  the  proposals  of  the  eligible
candidates of the cadre of Assistant Commissioners and above,  who  were  of
outstanding merit. 
The  award  of  damages  is  necessary  also  because,  a
message must go down that those who are responsible  for  administration  of
the State cannot trample upon the rights of others on the grounds which  are
unsustainable in law.   
We, therefore, direct the State  of  Andhra  Pradesh
to pay the damages of rupees fifty thousand to the appellant. 
 This will  be
over and above the litigation cost of rupees twenty five thousand, which  we
hereby award.
22.         The issue involved in the appeal arising  from  the  second  SLP
(C) No. 16042/2012 is same as the one in the earlier matter.
We  have  heard
Mr. Jayant Bhushan, learned senior counsel for the petitioner in the  second
matter, as well as, the counsel for the respondents. For the reasons  stated
in the first matter, we grant leave in this matter and pass the same  order,
as in the first one. This appeal will also stand allowed, accordingly,  with
damages quantified at rupees fifty thousand, and cost of rupees twenty  five
thousand to be paid by the first respondent.
23.         We direct that the amounts towards the damages and the  cost  be
paid to both the appellants within six weeks from the receipt of a  copy  of
this order.  In both these appeals, it will be open to the State  Government
to recover these amounts from  the  then  Commissioner  of  Commercial  Tax,
and/or whoever were the officers responsible for  the  non-consideration  of
the claim of both the appellants.


                                                  …………………………………..J.
                                       [ H.L. Gokhale ]

                                                         …………………………………..J.
                                       [ J. Chelameswar  ]



New Delhi
Dated : October 18, 2013
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