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TMI Blog2014 (3) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, violating Articles 14 and 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, the decision of the respondents cannot be justified. The appellant is entitled to such a positive declaration – Appeal allowed, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. Rangaramanuj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment 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) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances 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 we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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