Page 1 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.

Page 2 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

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Page 3 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

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Page 4 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 3

rd

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 5

th

respondent in not forwarding the

name of the applicant to 3

rd

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 2

nd

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 2

nd

respondent

not to convene the meeting of the Committee and not

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Page 5 to consider the case of any other candidate(s)

proposed by the 3

rd

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 3

rd

respondent to

consider and propose the name of the applicant for

consideration by the 2

nd

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

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Page 6 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:-

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Page 7 “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

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Page 8 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

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Page 9 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 1

st

January of the year

for which selection is made and are substantive in the

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Page 10 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

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Page 11 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

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Page 12 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

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Page 13 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

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Page 14 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)

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Page 15 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,

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Page 16 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

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Page 17 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

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Page 18 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

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Page 19 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

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Page 20 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

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Page 21 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

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Page 22 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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