THE HON'BLE Ms. JUSTICE G. ROHINI AND THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
WRIT PETITION No.26417 of 2010
08.10.2012
S.M. Rajeshwar Rao
1. Union of India, rep. by its Under Secretary,Department of Personal and
Training, Ministry of Personnel, Public Grievances and Pensions, Central
Secretariat, New Delhi,and others.
Counsel for the petitioner: Sri Siva
Counsel for respondent No.1 : Sri J.P. Srikanth for Ponnam Ashok Goud,
Assistant Solicitor General of India
Counsel for respondent No.2: Sri K.G. Krishna Murthy,Additional Advocate General
Counsel for respondent No.3 : Sri B. Narasimha Sarma,Standing Counsel for UPSC
Counsel for respondent No.4 : -
GIST:
HEAD NOTE:
? Cases cited:
1 (2008) 2 SCC 254
2 (2012) 6 SCC 312
3 (1996) 3 SCC 709
4 AIR 1958 SC 731
5 1994 (4) SCC 27
6 (1990) 2 SCC 707
7 (1991) 3 SCC 47
8 (2006) 3 SCC 330
9 2012 (1) ALD 631
10 (2004) 7 SCC 702
11 (2010) 4 SCC 290
12 (1996) 6 SCC 721
13 1993 Supp (3) SCC 575
ORDER: (Per G. Rohini, J)
The writ petitioner is working as Deputy Commissioner of Prohibition &
Excise at Kadapa. His name was empanelled for consideration for appointment to
the Indian Administrative Service of AP cadre from amongst Non-State Civil
Service Officers against the one vacancy determined for the year 2009 and was
recommended by the State Government by proceedings dated 16.12.2009. However
the Selection Committee did not meet and by proceedings dated 12.01.2010 the
Union Public Service Commission declared in exercise of the powers conferred by
proviso (c) to Regulation 5 of Indian Administrative Service (Appointment by
Selection) Regulations, 1997 that it was not practicable to hold the meeting of
the Selection Committee for the year 2009 for selection of Non-State Service
Officers.
Aggrieved by the same, the petitioner filed O.A.No.226 of 2010 in the Central
Administrative Tribunal, Hyderabad Bench with a prayer to declare the proviso
(c) to Regulation 5 of Indian Administrative Service (Appointment by Selection)
Regulations, 1997 as arbitrary, illegal, discriminatory and unconstitutional and
consequently to direct the respondents to prepare the select list of Non-State
Civil Service Officers for appointment to Indian Administrative Service of AP
cadre separately for the vacancy available as on 1.1.2009 in accordance with the
State Government's proposals dated 16.12.2009. The petitioner also prayed to
quash the decision of the Union Public Service Commission, dated 12.01.2010, and
to hold that he is entitled to be considered for appointment to Indian
Administrative Service proposed to be filled up in the year 2010 without
reference to his age. The said O.A. was dismissed by the Tribunal below by
order dated 19.10.2010.
Hence the present writ petition seeking a Certiorari to call for the record
relating to the order of the Tribunal dated 19.10.2010 in O.A.No.226 of 2010 and
to quash the same apart from granting the reliefs sought before the Tribunal in
O.A.No.226 of 2010.
We have heard the learned counsel for both the parties and perused the
material available on record.
At the outset, it is necessary to notice the relevant statutory provisions
relating to recruitment to the Indian Administrative Service.
In exercise of the powers conferred by Section 3 (1) of the All India
Services Act, 1951, the Central Government made the Rules called the Indian
Administrative Service (Recruitment) Rules, 1954 (hereinafter referred to as
'the Recruitment Rules, 1954'). Rule 4 of the above said Rules which provides
for method of recruitment to the Indian Administrative Service reads as under:
"4. Method of recruitment of the service:- (1) Recruitment
to the Service after the commencement of these rules, shall be by the following
methods, namely:-
(a) By a competitive examination
(b) By promotion of a substantive member of a State Civil Service.
(c) by selection, in special cases from among persons, who hold in a substantive
capacity gazetted posts in connection with the affairs of a State and who are
not members of a State Civil Service.
.. ... ... ..."
A reading of the above Rule shows that three sources are available for
recruitment of a person to the Indian Administrative Service namely (1) By a
competitive examination (2) By promotion of a substantive member of a State
Civil Service and (3) By selection from among persons holding Gazetted posts in
a substantive capacity in connection with the affairs of a State and who are not
members of a State Civil Service.
Rule 8 & Rule 9 of the Recruitment Rules, 1954 which are also relevant for
the purpose of the case on hand read as under:
"8. Recruitment by promotion or selection for appointment to State and Joint
Cadre:- (1) The Central Government may, on the recommendations of the State
Government concerned and in consultation with the Commission and in accordance
with such regulations, as the Central Government may, after consultation with
the State Governments and the Commission, from time to time, make recruit to the
service persons by promotion from amongst the substantive members of a State
Civil Service.
8 (2). The Central Government may, in special circumstances and on the
recommendation of the State Government concerned in consultation with the
Commission and in accordance with such regulations as the Central Government
may, after consultation with the State Government and the Commission from time
to time, make, recruit to the Service any person of outstanding ability and
merit serving in connection with the affairs of the State who is not a member of
the State Civil Service of that State but who holds a gazetted post in a
substantive capacity.
8 (3) (a). Where a vacancy occurs in a State Cadre which is to be filled under
the provision of this rule, the vacancy shall be filled by promotion of a member
of the State Civil Service or, as the case may be, by selection of any other
officer serving in connection with the affairs of that State.
(b) Where a vacancy occurs in a Joint Cadre which is to be filled under the
provision of this rule, the vacancy shall, subject to any agreement in this
behalf, be filled by promotion of a member of the State Civil Service of any of
the States constituting the group or as the case may be, by selection of any
other officer serving in connection with the affairs of any such State (s).
9. Number of persons to be recruited under rule-8
9 (1). The number of persons recruited under rule 8 in any
State or group of States shall not, at any time, exceed 33 1/3 per cent of the
number of senior posts under the State Government, Central Deputation Reserve,
State Deputation Reserve and Training Reserve in relation to that State or to
the group of States, in the Schedule to the Indian Administrative Service
(Fixation of Cadre Strength) Regulations, 1955.
Provided that the number of persons recruited under sub-rule (2) of the rule 8
shall not at any time exceed fifteen per cent of the number of persons recruited
under rule 8.
9 (2). Notwithstanding anything contained in this rule, in relation
to the State of Jammy and Kashmir, the number of persons recruited under sub-
rule (1) shall not upto 30th April, 2002, exceed at any time, fifty per cent of
the number of senior posts under the State Government, Central deputation
reserve, state deputation reserve and the training reserve in relation to that
State in the Schedule to the Indian Administrative Service (Fixation of Cadre
Strength) Regulations, 1955."
In pursuance of Rule 8 (1) of the Recruitment Rules, 1954 the Central
Government in consultation with the State Governments and the Union Public
Service Commission made Indian Administrative Service (Appointment by Promotion)
Regulations, 1955 (for short, 'Appointment by Promotion Regulations, 1955').
These Regulations govern the recruitment by promotion from the members of the
State Civil Service (the second source of recruitment provided under Rule 4 of
the Recruitment Rules, 1954).
Similarly in pursuance of Rule 8 (2) of the Recruitment Rules, 1954 the Central
Government in consultation with the State Governments and the Union Public
Service Commission made the Indian Administrative Service (Appointment by
Selection) Regulations, 1997 (for short, 'Appointment by Selection Regulations,
1997'). These Regulations apparently govern the third source of recruitment
i.e., recruitment to the Indian Administrative Service by selection from the
members of Non-State Civil Service.
Since the writ petitioner is holding a Non-State Civil Service post he is
governed by Appointment by Selection Regulations, 1997. Regulations 3, 4 & 5 of
the said Regulations which are relevant for the purpose of the present case read
as under:
"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 person 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 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 shall 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) to
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 provision 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 of Joint Cadres, a separate select list shall be prepared
in respect of each constituent having a State Civil Service."
(emphasis supplied)
In the present case, the petitioner is admittedly holding a Non-State
Civil Service post. For the year 2009, one vacancy was determined by the
Government of India for recruitment to the Indian Administrative Service from
the Non-State Civil Service Officers. In terms of Regulation 4 (1) of the
Appointment by Selection Regulations, 1997, the State Government recommended the
names of five officers (in the ratio of 1:5) holding gazetted posts in the Non-
State Civil Service for consideration by the Committee. The writ petitioner's
name was also included in the said list and the same was forwarded to the Union
Public Service Commission (UPSC) by the State Government by letter dated
16.12.2009 for consideration by the Selection Committee. However by letter
dated 12.1.2010 the UPSC informed the Government of India that it was not
practicable to hold the meeting of the Selection Committee during the year 2009
for selection among the Non-State Civil Service Officers for appointment to
Indian Administrative Service of AP cadre stating that the
clarifications/information sought by them was not received from the State
Government on or before 31.12.2009. The said decision was apparently taken by
the UPSC in exercise of the powers conferred by the proviso (c) to
Regulation 5 of Appointment by Selection Regulations, 1997.
As per the first proviso to Regulation 4 (1) of the Appointment by Selection
Regulations, 1997, a person who has attained the age of 54 years on the first
day of January of the year in which the decision is taken to propose the names
for consideration of the Selection Committee is not eligible for appointment.
The writ petitioner crossed the upper age limit of 54 years as on 1.1.2010 and
therefore he is not eligible for consideration against the vacancies for the
year 2010. Hence he filed O.A.No.226 of 2010 in the Tribunal contending that
notwithstanding the age limit prescribed in Regulation 4 (1), his candidature
should be considered in the year 2010 against the one vacancy determined for the
year 2009 since it was not filled up only on account of the delay on the part of
the State Government & UPSC in finalizing the selection process on or before
31.12.2009. It was also contended that the proviso (c) to Regulation 5 of the
Appointment by Selection Regulations, 1997, which enables the UPSC to hold that
it is not practicable to hold a meeting of the Committee during the year, is
liable to be declared arbitrary, discriminatory and unconstitutional since it
vests the authority with unbridled power. The Tribunal did not accept the said
contentions and accordingly dismissed O.A.No.226 of 2010 by order dated
19.10.2010. Hence the present writ petition.
It is contended by Sri Siva, the learned counsel for the writ petitioner that it
is mandatory to hold selections every year for the vacancies which are in
existence for that particular year and failure to hold selections on account of
administrative delay cannot take away the right crystallized in favour of the
petitioner for selection. The learned counsel submits that the petitioner
acquired a right for selection on inclusion of his name in the panel of
qualified candidates recommended by the State Government.
Pointing out that there is a specific provision in the Appointment by Promotion
Regulations, 1955, which govern the recruitment from the members of the State
Civil Service, for preparation of year-wise panels for the vacancies that are
available in a panel year, it is contended by the learned counsel for the
petitioner that there is no justifiable reason for not making a similar
provision in the Regulations relating to recruitment from the Non-State Civil
Service Officers and therefore it is necessary to direct to consider the name of
the petitioner for appointment to the vacancies proposed to be filled up in the
year 2010 apart from declaring the proviso (c) to Regulation 5 of the
Appointment by Selection Regulations, 1997 as arbitrary, discriminatory and
unconstitutional.
We have also heard Sri K.G. Krishna Murthy, the learned Additional Advocate
General appearing for the State, Sri B. Narasimha Sarma,
the learned counsel appearing for the UPSC, Sri J.P. Srikanth, the learned
Assistant Solicitor General of India appearing for the respondent No.1 and
perused the counter-affidavits filed on their behalf.
In the light of the rival submissions made by the learned counsel on either
side, the following points arise for consideration:
(1) Whether the proviso (c) to Regulation 5 of the Appointment by Selection
Regulations, 1997 is liable to be struck down on the ground that it is
discriminatory and unconstitutional?
(2) Whether the petitioner is entitled to be considered for empanelment in
respect of the vacancies proposed to be filled up in
the year 2010 under Appointment by Selection Regulations, 1997
from Non-State Civil Service Officers?
POINT No.1:-
We have already noticed that Indian Administrative Service (Appointment by
Selection) Regulations, 1997 are made by the Central Government in consultation
with the State Governments and the Union Public Service Commission in terms of
Rule 8 (1) of the Indian Administrative Service Recruitment Rules, 1954 made in
exercise of the powers conferred by Section 3 (1) of All India Services Act,
1951. Hence indisputably the Regulations in question are statutory regulations.
The law is well-settled that there is always a presumption in favour of
Constitutionality of a Statute and the burden is upon him who attacks the
Statute to show that there has been a clear violation of the Constitutional
principles.
The scope of judicial review while considering the Constitutional validity
of the Statute has been explained in KARNATAKA BANK LIMITED v. STATE OF A.P.1 as
under:
"19. The rules that guide the constitutional courts in discharging their
solemn duty to declare laws passed by a legislature unconstitutional are well
known. There is always a presumption in favour of constitutionality, and a law
will not be declared unconstitutional unless the case is so clear as to be free
from doubt; 'to doubt the constitutionality of a law is to resolve it in favour
of its validity'. Where the validity of a statute is questioned and there are
two interpretations, one of which would make the law valid and the other void,
the former must be preferred and the validity of law upheld. In pronouncing on
the constitutional validity of a statute, the court is not concerned with the
wisdom or unwisdom, the justice or injustice of the law. If that which is passed
into law is within the scope of the power conferred on a legislature and
violates no restrictions on that power, the law must be upheld whatever a court
may think of it."
Reiterating the well-settled principles of law, it is observed in a recent
decision in STATE OF M.P. v. RAKESH KOHLI2:
"16. The statute enacted by Parliament or a State Legislature cannot be
declared unconstitutional lightly. The court must be able to hold beyond any
iota of doubt that the violation of the constitutional provisions was so glaring
that the legislative provision under challenge cannot stand. Sans flagrant
violation of the constitutional provisions, the law made by
Parliament or a State Legislature is not declared bad."
So far as the challenge to an enactment based on Article 14 of the
Constitution of India is concerned, in STATE OF A.P. v. McDOWELL AND CO.3 it is
held:
"43 .. ... A law made by Parliament or the legislature can be struck down
by courts on two grounds and two grounds alone viz., (1) lack of legislative
competence, and (2) violation of any of the fundamental rights guaranteed in
Part III of the Constitution or of any other constitutional provision. There
is no third ground ..... if an enactment is challenged as violative of Article
14, it can be struck down only if it is found that it is violative of the
equality clause/equal protection clause enshrined therein. Similarly, if an
enactment is challenged as violative of any of the fundamental rights guaranteed
by sub-clauses (a) to (g) of Article 19 (1), it can be struck down only if it is
found not saved by any of the clauses (2) to (6) of Article 19 and so on. No
enactment can be struck down by just saying that it is arbitrary or
unreasonable. Some or the other constitutional infirmity has to be found before
invalidating an Act. An enactment cannot be struck down on the ground that court
thinks it unjustified. Parliament and the legislatures, composed as they are of
the representatives of the people, are supposed to know and be aware of the
needs of the people and what is good and bad for them. The court cannot sit in
judgment over their wisdom."
From the settled legal position noticed above, it is clear that before
declaring a statute to be unconstitutional, the Court must be absolutely sure
that there can be no manner of doubt that it violates a provision of the
Constitution. It has been consistently held by the Apex Court that the
Legislative enactment can be struck down by the Court only on two grounds;
namely (i) that the appropriate Legislature does not have competence to make the
law (ii) that it does take away or abridge any of the fundamental rights
enumerated in part-III of the Constitution or any other Constitutional
provisions. Even with regard to the allegation that a statutory provision is
violative of Article 14 of the Constitution of India, the law is well-settled
that no provision can be struck down on the mere ground that it was arbitrary or
irrational but the satisfaction of the Court that the classification is not
permissible under law is essential.
As held by a Constitution Bench of the Supreme Court in MOHD. HANIF QUARESHI v.
STATE OF BIHAR4, to pass the test of permissible classification, two
conditions must be fulfilled; namely (i) the classification must be founded on
an intelligible differentia which distinguishes persons or things that are
grouped together from others left out of the group, and (ii) such differentia
must have rational relation to the object sought to be achieved by the statute
in question. Such classification might be founded on different basis, namely,
geographical, or according to objects or occupations or the like and what is
necessary is that there must be a nexus between the basis of classification and
the object of the Act under consideration.
In the present case, the submission on behalf of the writ petitioner is that
though the procedure prescribed for preparation of list of suitable officers
both under the Appointment by Promotion Regulations, 1955 and Appointment by
Selection Regulations, 1997 was in pari materia till the year 2000, by
notification dated 25.7.2000 a proviso was inserted to Regulation 5 (1) of the
Appointment by Promotion Regulations, 1955 for preparation of select lists
separately for each year during which the Committee could not meet as on 31st
December of each year. It is also pointed out that proviso (c) which empowered
the UPSC to declare that it is not practicable to hold a meeting of the
Selection Committee during the year was deleted. The grievance of the
petitioner is that similar amendments were not effected to the Appointment by
Selection Regulations, 1997 which govern the appointment to Indian
Administrative Service from the Non-State Civil Service Officers and that this
has resulted in adopting a different procedure for recruitment to the Indian
Administrative Service from among the members of the State Civil Service and
Non-State Civil Service. It is vehemently contended by the learned counsel for
the petitioner that the classification sought to be drawn among the personnel
from State Civil Service and Non-State Civil Service by adopting different
procedure is unjust, illegal and arbitrary, and therefore the proviso (c) to
Regulation 5 of the Appointment by Selection Regulations, 1997 being
discriminatory and unconstitutional is liable to be struck down.
We do not find substance in any of the contentions advanced by the learned
counsel for the writ petitioner. It is evident from Rule 4 of the Recruitment
Rules, 1954 that the recruitment to Indian Administrative Service is from three
different sources. Whereas the first source is by way of direct recruitment,
the sources two and three are by recruitment from among the officers of State
Civil Service and Non-State Civil Service. Indisputably, we are not concerned
in the present case with the first source. Coming to the sources two and three,
though the method of appointment appears to be somewhat similar, on a careful
analysis of the Regulations governing the recruitment from the personnel of
State Civil Service and Non-State Civil Service, it is clear that the procedure
to be followed for recruitment from the said two sources is entirely different.
The distinction is apparent from Rule 8 of the Indian Administrative Service
Recruitment Rules, 1954 itself. Whereas sub-rule (1) of Rule 8 which provides
for recruitment from amongst the members of a State Civil Service merely states
that the recruitment may be made by the Central Government on the
recommendations of the concerned State Government and in consultation with the
UPSC, sub-rule (2) which provides for the recruitment from Non-State Civil
Service Officers states that the recruitment may be made in special
circumstances on the recommendation of the concerned State Government and in
consultation with the UPSC. It is further added that the person to be recruited
from the Non-State Civil Service shall be of outstanding ability and merit
serving in connection with the affairs of State and that he must be holding a
gazetted post in a substantive capacity. There is also a difference in the
title of the Regulations made in terms of sub-rules (1) & (2) of Rule 8
governing the recruitment from the members of the State Civil Service and Non-
State Civil Service respectively. Whereas the Regulations governing the
recruitment from State Civil Service Officers are titled as 'Appointment by
Promotion Regulations', the Regulations governing the recruitment from Non-State
Civil Service Officers are titled as 'Appointment by Selection Regulations'
which itself indicates that the former is by way of promotion, whereas the
latter is by way of selection. A further distinction is drawn under Rule 9(1)
of the Recruitment Rules, 1954 by providing a fixed quota of 33 1/3 % for the
purpose of consideration by promotion from the members of the State Civil
Service. No such specific quota is prescribed and on the other hand the
consideration by selection from the members of the Non-State Civil Service is
restricted to 15%. That apart as noticed above, the selection from the
members of the Non-State Civil Service is subject to the satisfaction of the
State Government and where special circumstances exist. Moreover, the person
for being selected should possess outstanding ability and merit which makes it
evident that not only the availability of the substantive vacancies but also the
availability of suitable persons is one of the essential criteria for
appointment from the Non-State Civil Service Officers. The same distinction can
be made out on comparison of Regulation 5 of the Appointment by Promotion
Regulations, 1955 vis-a-vis Regulation 5 of Appointment by Selection
Regulations, 1997.
Therefore, we find force in the submission of the learned counsel for the
respondents that the appointment from the members of the Non-State Civil Service
is by way of selection basing on the outstanding merit and ability of the
candidates and thus, they cannot claim indefeasible right for consideration for
appointment. It is only a person of outstanding ability and merit serving in
connection with the affairs of the State will be considered for appointment.
Hence, in our considered opinion the members of Non-State Civil Service belong
to a different clan and they cannot be placed on par with the members of the
State Civil Service. The mode of selection provided in the Appointment by
Selection Regulations, 1997 does not confer any vested right of consideration to
the Non-State Civil Service Officers since the said mode can be resorted to only
in special circumstances where it is found that Non-State Civil Service Officers
of outstanding merit and ability are available and where the State Government
desires to fill up the earmarked vacancies with those Officers.
For the aforesaid reasons, there is no justifiable reason to hold that the
classification between the members of the State Civil Service and Non-State
Civil Service is not founded on an intelligible differentia. The Central
Government while making the Regulations was well aware of the distinction
between the officers belonging to two categories and separate set of Regulations
were enacted with different provisions in tune with the object sought to be
achieved by Rule 8 of the Indian Administrative Service (Recruitment) Rules,
1954. As expressed above, the scheme of appointment of Non-State Civil Service
Officers by selection is not akin to the scheme of appointment of the State
Civil Service Officers by way of promotion. Hence we are convicted that the
classification is reasonable and it is not open to challenge.
In the above noticed scenario, it appears to us that insertion of a specific
provision in the Appointment by Promotion Regulations, 1955 by way of amendment
in the year 2000 to the effect that in the event of not convening a meeting of a
committee during a year, as and when the committee meets again a separate select
list shall be prepared for each year is to advance the object underlying the
scheme of appointment from the State Civil Service Officers.
Since no such vested right is created in favour of the members of the Non-State
Civil Service and the appointment by selection is to be resorted to only in
special circumstances, there is no substance in the contentions that the
respondents failed to exercise the statutory duty in sending the proposals for
the vacancy determined for the year 2009 and that the legitimate right of the
petitioner for consideration against the said vacancy was defeated on account of
the alleged inaction on the part of the respondents.
For the same reasons, the respondents cannot be found fault with for not
bringing out amendments in Appointment by Selection Regulations, 1997 for
preparation of the year-wise panels.
In identical circumstances, the High Court of Madras in W.P.No.22665 of 2006
upheld the action of the UPSC in invoking the proviso (c) to Regulation 5 of the
Appoint by Selection Regulations, 1997.
It is also relevant to note that the only ground upon which the proviso (c) to
Regulation 5 of the Appointment by Selection Regulations, 1997 is sought to be
challenged is that it is discriminatory and that there is no justifiable reason
to apply different standards for the purpose of recruitment to the Indian
Administrative Service from the Non-State Civil Service Officers.
As explained above, the Non-State Civil Service Officers stand on an entirely
different footing than the State Civil Service Officers so far as the
recruitment to Indian Administrative Service is concerned. They belong to two
different sources governed by two different sets of recruitment regulations. As
held in MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATION v.
OARTOSH BHUPESHKUMAR SHETH5, this Court cannot sit in judgment over the wisdom
of the policy evolved by the legislature and the sub-ordinate regulation making
body. It is held in the said decision:
"It may be a wise policy which will fully effectuate the purpose of the
enactment or it may be lacking in effectiveness and hence calling for revision
and improvement. But nay drawbacks in the policy incorporated in a rule or
regulation will not render it ultra vires and the Court cannot strike it down on
the ground that, in its opinion, it is not a wise or prudent policy, but is even
a foolish one, and that it will not really serve to effectuate the purposes of
the Act. The Legislature and its delegate are the sole repositories of the
power to decide what policy should be pursued in relation to matters covered by
the Act and there is no scope for interference by the Court unless the
particular provision impugned before it can be said to suffer from any legal
infirmity, in the sense of its being wholly beyond the scope of the regulation-
making power or its being inconsistent with any of the provisions of the parent
enactment or in violation of any of the limitations imposed by the
Constitution."
None of the vitiating factors are shown to exist in the present case and
therefore we do not find any justifiable reason to hold that the proviso (c) to
Regulation 5 is arbitrary or unconstitutional.
POINT No.2:
It is explained in the counter affidavit filed on behalf of the State that the
name of the writ petitioners was shortlisted for preparation of select list and
he was among the 10 Officers for filling up two vacancies. The meeting of the
Selection Committee constituted for preparation of select list of 2007 was
convened on 31.12.2007 and two Officers were selected and appointed against the
two vacancies. For the year 2008, no meeting was convened since no vacancies
were available for that year. For the year 2009, though one vacancy was
available and the petitioner was short listed among the five Officers for
consideration by the Selection Committee, in view of the decision taken by the
UPSC under proviso (c) to Regulation 5 the meeting of the Selection Committee
was not held. So far as the year 2010 is concerned, the Government of India
determined three vacancies for preparation of select list of Non-State Civil
Service Officers and proposals were called for from all the Departments for
consideration of the cases of eligible Officers. However, the writ petitioner
who crossed 54 years of age as on 01.01.2010, is not eligible for consideration
as per the first proviso to Regulation 4 (1) of the Appointment by Selection
Regulations 1997. Hence, the respondents were justified in not short-listing
the petitioner and no Mandamus can be issued compelling the respondents to act
contrary to law. Be it noted that the petitioner is not questioning the
correctness of the maximum age prescribed under the first proviso to Regulation
4 (1) of the Appointment by Selection Regulations 1997. In the absence of any
provision for preparation of separate list for the vacancies arose in the year
2009, the respondents cannot be directed to consider the name of the petitioner
against the vacancy of the year 2009 since it would amount to enactment of a new
rule by this Court, which is held to be impermissible in MALLIKARJUNA RAO AND
OTHERS v. STATE OF ANDHRA PRADESH AND OTHERS6.
As held by the Constitution Bench in SHANKARSAN DASH v. UNION OF INDIA7, the
State is under no legal duty to fill up all or any other vacancies and that as
long as the decision not to fill up is bona fide, they cannot be faulted. Even
if there are vacancies, the Government need not immediately notify the vacancies
as soon as they arose. Similar view has been expressed in STATE OF UP AND
OTHERS V. RAJKUMAR SHARMA AND OTHERS8. Relying upon the above said decision of
the Constitution Bench, a Division Bench of this Court in PARIGE P. SUDHIR AND
OTHERS v. ANDHRA PRADESH PUBLIC SERVICE COMMISSION, HYDERABAD AND OTHERS9, held
that the judicial intervention is permissible only when the acts of omissions
and commissions on the part of the State violate a legislation covering one or
other field of public employment.
We may also point out that in, GOVERNMENT Of INDIA v. G.LIMBADRI RAO AND
OTHERS10, the Supreme Court was dealing with the question as to whether the
respondents committed any illegality in considering the case of the 1st
respondent therein for non-inclusion in the proposal to be sent to the UPSC for
preparation of the select list of Non-State Civil Service Officers for the year
2002 for appointment to IAS on the ground that the 1st respondent had attained
the age of 54 years as on 01.01.2002. After considering the proviso to
Regulation 4 of the Appointment by Selection Regulations, 1997, which provides
that the State Government shall not consider the case of a person who has
attained the age of 54 years on the 1st day of January of the year in which the
decision is taken to propose the names for consideration of the Committee, the
Supreme Court held that the 1st respondent was not eligible to be included in
the proposals sent in January, 2002. The facts in the present case are almost
identical and the petitioner herein has also crossed 54 years as on 01.01.2010.
Hence, he is not eligible to be included in the proposals to be sent to UPSC for
the year 2010.
Though there can be no dispute about the ratio laid down in the decisions cited
by the learned counsel for the writ petitioner namely UNION OF INDIA AND ANOTHER
v. HEMRAJ SINGH CHAUHAN AND OTHERS11, UNION OF INDIA AND OTHERS v. VIPINCHANDRA
HIRALALA SHAH12 and SYED KHALID RIZVI AND OTHERS v. UNION OF INDIA AND OTHERS13,
there is no nexus between the issue involved in the said cases and the present
case. Hence the said decisions have no relevance and are clearly
distinguishable on facts.
Therefore, we are of the opinion that the petitioner is not entitled to be
considered for empanelment in respect of the vacancies proposed to be filled up
in the year 2010.
Thus, both the points are decided against the petitioner and therefore the Writ
Petition is hereby dismissed. Consequently, the miscellaneous petitions, if
any, pending shall also stand dismissed. No costs.
_________________
Justice G. Rohini
_________________________
Justice C.Praveen Kumar
Date: 08.10.2012
