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CASE NO.:

Appeal (civil) 5883-5891 of 2007

PETITIONER:

M.V.Thimmaiah & Ors

RESPONDENT:

Union Public Service Commission & Ors.

DATE OF JUDGMENT: 13/12/2007

BENCH:

A.K.MATHUR & MARKANDEY KATJU

JUDGMENT:

J U D G M E N T

[Arising out of S.L.P.(c) Nos.23060-23068 of 2005]

With:

Civil Appeal Nos. 5894-5902 of 2007

[Arising out of S.L.P.(c) Nos.23484-23492 of 2005]

Civil Appeal Nos. 5903-5911 of 2007

[Arising out of S.L.P.(c) Nos.23571-23579 of 2005]

Civil Appeal No. 5912 of 2007

[Arising out of S.L.P.(c) No.23852 of 2005]

Civil Appeal Nos. 5913-5921 of 2007

[Arising out of S.L.P.(c) No.25764-25772 of 2005]

Civil Appeal No. 5922 of 2007

[Arising out of S.L.P.(c) No.900 of 2006]

Contempt Petition ) No.131 of 2006 in

S.L.P.(c) Nos.23060-23068 of 2005.

A.K.MATHUR,J.

1. Leave granted in all the Special Leave Petitions.

2. All these appeals arise against the common order dated 6.10.2005

passed by the Division Bench of the High Court of Karnataka while

disposing of a bunch of petitions arising out of the common order dated

4.10.2004 passed by the Central Administrative Tribunal, Bangalore Bench

(hereinafter to be referred to as the Tribunal). The Tribunal by the

aforesaid order set aside the recommendations of the Selection Committee

to fill up 8 vacancies belonging to the non-State Civil Service

Officers of Government of Karnataka to the Indian Administrative Service

(IAS) of Karnataka cadre on the ground of mala fides, arbitrariness and

also on the ground that the Selection Committee without application of

mind had awarded marks to the selected candidates in a discriminatory

manner. It was also held by the Tribunal that the Selection Committee

was not properly constituted as per the provisions of Regulation 3 of

the Indian Administrative Service (Appointment by Promotion)

Regulations, 1955 (hereinafter to be referred to as the Regulations of

1955). Out of the bunch of petitions which were filed before the

Karnataka High Court, two petitions were filed by the Union Public

Service Commission ( hereinafter to be referred to as the Commission),

first is that the Chairman of the Selection Committee, Shri Subir Dutta,

Member, U.P.S.C. against whom the allegation of mala fide was leveled

and it was upheld by the Tribunal, second one challenging the finding of

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the Tribunal that the Selection Committee was not properly constituted

and the Selection Committee acted arbitrarily and in a discriminatory

manner and awarded marks to the selected candidates. Another batch of

petitions (seven in number) was filed by the selected candidates whose

names were recommended for appointment to the I.A.S. and two writ

petitions were filed by the persons who were not short-listed by the

Screening Committee. Hence, all these petitions were clubbed together

and were disposed of by the common order as aforesaid.

3. Learned Division Bench of the Karnataka High Court after

hearing all the parties found that the allegation of mala fide leveled

against Shri Subir Dutta, Member of the Commission was not well founded,

that the Selection Committee was properly constituted and the Committee

did not act in arbitrary or discriminatory manner while awarding the

marks to the selected candidates. Hence the order of the Tribunal was

set aside. Aggrieved against this order passed by the Division Bench of

the Karnataka High Court dated 6.10.2005, the present appeals were filed

by the aggrieved persons. Hence, the appeals have now finally come up

before us for disposal.

4. The appointment to the I.A.S. from the State cadre can be made

other than the State Civil Service in case an incumbent is having

outstanding merit and ability and holds a gazetted post in a

substantive capacity and has completed not less than eight years of

service in 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. The candidates shall not exceed five times the posts proposed

to be filled up during the year. An incumbent should not have attained

the age of 54 years, as per the Regulations of 1997. Regulation 5 says

that a list shall be prepared of the suitable candidates by the

Committee after scrutiny of service records and personal interview. The

Committee has been defined in Regulation 2(i)(a) which means a Committee

as constituted under Regulation 3 of Regulations, 1955. As per the

Regulations, the Committee shall be headed by the Chairman of the

Commission or if the Chairman fails to attend, by any other Member of

the Commission. The Chairman or the Member of the Commission shall

preside over the meetings. Regulation 3(3) further says that the

absence of a member, other than the Chairman or Member of the

Commission, shall not invalidate the proceedings of the Committee if

more than half the members of the Committee had attended the meeting.

Regulation 3(3) which will have relevant bearing reads as under:

\023 3(3) The absence of a member, other than

the Chairman or Member of the Commission, shall not

invalidate the proceedings of the Committee if more

than half the members of the Committee had attended

the meetings.\024

Apart from the Member of the Commission, as per the schedule referred to

for the State, the following members shall also be the members of the

Committee which includes the Chief Secretary to the Government;

Additional Chief Secretary to the Government; Principal Secretary to

Government, Revenue Department; Senior most Divisional Commissioner and

two nominees of the Central Government. This Selection Committee after

scrutiny of the records and calling for personal interview will prepare

a list and recommend the names of the suitable candidates to the State

Government concerned, which shall forward to the Commission for its

approval along with the records of all members of the State Civil

Service included in the list; the records of all members of the State

Civil Service who are proposed to be superseded by the recommendations

made in the list and the observations, if any, of the State Government

on the recommendations of the Committee to the Central Government and

the Central Government shall also forward their observations, if any, on

the recommendations of the Committee to the Commission. Thereafter, the

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Commission as per Regulation 7 of 1997 shall consider the list prepared

by the Committee; observations, if any, of the Central Government or the

State Government concerned, on the recommendations of the Committee and

approve the list subject to the provisions of Regulation 7(2) of the

Regulations, 1997. As per Regulation 7(2); if the Commission considers

it necessary to make any changes in the list received from the State

Government, the Commission shall inform the State Government and the

Central Government of the changes proposed and after taking into account

these comments, if any, of the State Government and the Central

Government, may approve the list finally with such modification, as may

in its opinion be just and proper. That list shall be forwarded to the

Central Government and the Central Government shall make appointment on

the basis of the list but if the Central Government is of the opinion

that it is necessary or expedient so to do in the public interest may

not appoint any person and it is within the domain of the Central

Government and it need not record its reasons or communicate the same to

the Commission. In this scheme of the Rules, the factual controversy

shall be examined.

5. In the present case eight vacancies were advertised and the

process of recruitment to these vacancies was undertaken. The State

Government constituted a Screening Committee for short-listing of the

Officers not belonging to the State Civil Service. The Committee was

headed by Shri B.S.Patil, Chief Secretary to the Government and four

other Members who were the Secretaries to the Government of Karnataka.

As per Circular dated 30.3.2002 the Government had directed various

Heads of the Department to send a list eligible suitable officers who

fulfil the aforesaid eligibility criteria. In pursuance of this circular

79 names were received from different Departments and their cases were

scrutinized by the Screening Committee with reference to their records

for short-listing the names which could be sent to the Commission for

selection to the I.A.S. cadre. Since the number of persons to be

considered shall not exceed five times the vacancies proposed to be

filled up in that year, therefore, as against eight vacancies 40

candidates were to be short-listed. The Screening Committee short-listed

40 candidates on the basis of the service records out of the 79

candidates whose names were received from different Departments.

Besides, the name of one more person was sent to the Selection

Committee for selection because of the order passed by the Tribunal.

Thus, in total names of 41 persons were sent for consideration against

eight vacancies. The Selection Committee after scrutinizing the cases

and after interviewing 39 candidates selected eight candidates and two

candidates remained absent. Though a petition was filed before the

Tribunal by one person who was not selected and stay order was obtained

that was challenged before the High Court and the High Court allowed the

writ petition and vacated the interim order passed by the Tribunal

staying the selection and permitted the selection to be taken to its

logical conclusion subject to the condition that the order passed by the

Tribunal shall be subject to challenge before this Court. Then one

Special Leave Petition was filed before this Court against the order

passed by the Division Bench vacating the stay order passed by the

Tribunal that Special Leave Petition was dismissed on 23.7.2004.

Thereafter, the matter was finally heard by the Tribunal and the

Tribunal set aside the selection of eight selected candidates of the

Karnataka cadre to the I.A.S. The Tribunal was of the view that the

Selection Committee was not properly constituted as per the provisions

of Regulation 3 of the Regulations, 1955 and the Tribunal further took

the view that the selection of eight candidates stood vitiated as a

result of mala fide on the part of Shri B.S.Patil, Chief Secretary and

Shri Subir Dutta, Member of the Commission who was the Chairman of the

Selection Committee. It was further observed by the Tribunal that the

selection was not fair and selection was being made in an arbitrary

manner. However, the name of two persons who were not short-listed was

rejected by the Tribunal on the ground that there was no arbitrariness

for their non-inclusion. That order was challenged by them before the

High Court by filing writ petition. The Division Bench of the High

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Court after examining the matter found that all the grounds raised by

the writ petitioners were not sustainable.

6. The controversy involving the selection could be divided into

two parts; (i) mala fide and (ii) the constitution of the Selection

Committee and the selection of the candidates. So far as the first

argument with regard to mala fide is concerned, Shri Subir Dutta was not

impleaded as a party, but subsequently, he was impleaded as a party

respondent. The first ground which was alleged is that the select list

is not only arbitrary but also a product of favouritism shown to the

selected candidates notwithstanding the fact that the appellants had

outstanding records but their names were not included solely for the

reason that the Selection Committee was headed by Shri Subir Dutta,

Member of the Commission and Shri B.S.Patil, the Chief Secretary to the

Government being one of the constituents of the Committee being

interested in the candidature of Respondents 5 to 12 before the

Tribunal and as a result of such selection, their candidatures have not

been considered in a proper and objective manner and they did not

receive a fair treatment from the Selection Committee. It is alleged

that the selection was vitiated on the ground that Shri Subir Dutta,

who was the Chairman of the Selection Committee was appeased with the

piece of land in the city of Bangalore i.e. he was allotted a site in

Bangalore irrespective of the fact that whether he was eligible or not.

It was submitted that during the process of selection and on the basis

of interview, a site has been bartered away in favour of Shri Subir

Dutta and in that the former Chief Secretary to the Government, Shri

B.S.Patil has shown a great interest. Therefore, on account of this

favouritism was shown to respondents 5 to 12 before the Tribunal, the

applicants before the Tribunal have been denied their legitimate

selection and therefore, in sum total, the allegation of mala fide

against Shri Subir Dutta is that a site was allotted to him to appease

him and secure favourable selection in respect of Respondents 5 to 12.

The High Court in order to verify the element of truth sent for the

original file relating to the allotment of residential site to Shri

Subir Dutta from Bangalore Development Authority wherein it is noted

that on 11.4.2003 a note was placed by Shri B.S.Patil, the Chief

Secretary, to the Chief Minister making a request that a site be

allotted to Shri Subir Dutta as he has attachment to the State of

Karnataka and he has been helpful both for selecting Bangalore for bi-

annual Air Shows and for grant of defence land for the purpose of road

network in Bangalore. For that on 17.4.2003 the Chief Minister approved

the proposal of the Chief Secretary for allotment of a residential site

to Shri Subir Dutta who was at that time the Defence Secretary. After

that necessary formalities for allotment was undertaken. On 17.4.2003

when a site was allotted to Shri Subir Dutta, he was the Defence

Secretary to Government of India and he was not a Member of the

Commission and he became a Member of the Commission only on 1.7.2003 and

assumed charge on 4.7.2003 as Member of the Commission. The selection

took place in November, 2003. Therefore, the Division Bench of the High

Court rejected the allegation of mala fide to be far-fetched. We gave

our thoughtful consideration to this allegation. There is no correlation

with this selection. It is too far fetched to connect with this case

that Shri Subir Dutta who was given the residential site in lieu of his

service rendered to the State of Karnataka, would necessarily favour the

candicates. The short-listing was done by the Screening Committee

headed by the Chief Secretary along with four Secretaries of the State

and there was no mala fide intention in short-listing of these persons,

now to think that just because Shri Dutta was allotted some land so that

necessarily he would favour these selected candidates only is nothing

but figment of imagination of the appellants. To connect the selection

with the previous allotment of land to Shri Subir Dutta has hardly any

connection between the two. In the selection process Shri Subir Dutta

was one of the Members along with others. All the Officers who were to

be selected belonged to Karnataka State and it is not specific that any

of the selected candidates has in any manner actively associated with

the allotment of land to Shri Subir Dutta. It is too remote to connect

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the selection of these candidates with the allotment of the site to Shri

Subir Dutta. We do not find any connection that any of the selected

candidates has in any manner directly or indirectly associated himself

in the allotment of the site in favour of Shri Subir Dutta. As it

appears from the file which was summoned by the High Court that the

proposal was mooted out by the Chief Secretary and it was approved by

the Chief Minister. Therefore, there appears no direct or indirect

connection with the selection of candidates and allotment of residential

site in favour of Shri Subir Dutta. As such, the allegations are too

far-fetched to render the entire selection invalid on the ground of so

called mala fide. This is purely flight of imagination and we strongly

reject the allegation of mala fide against Shri Subir Dutta, the

Chairman of the Selection Committee.

7. So far as the allegation of mala fide against Shri B.S.Patil

is concerned, he was not impleaded as a party. Therefore, the

allegation of mala fide could not be entertained by the Tribunal. As

such, the allegation of mala fide against Shri B.S.Patil could not be

taken into consideration and rightly so, by the High Court as well as by

the Tribunal. The allegation of mala fide is very easy to be levelled

and it is very difficult to substantiate it, specially in the matter of

selection or whoever is involved in the decision making process. People

are prone to make such allegation but the Courts owe a duty to

scrutinize the allegation meticulously because the person who is making

the allegation of animous sometimes bona fidely or sometimes mala fidely

due to his non-selection. He has a vested interest. Therefore, unless

the allegations are substantiated beyond doubt, till that time the Court

cannot draw its conclusion. Therefore, we reject the allegation of mala

fide.

8. Now, coming to the constitution of the Selection Committee and

the selection undertaken by the Committee, so far as the constitution of

the Selection Committee is concerned, one of the submissions was that

the Divisional Commissioner who was supposed to be the Member of the

Selection Committee was not there. Therefore, the whole selection stood

vitiated. So far as this argument is concerned, suffice it to say that

the post of Divisional Commissioner was abolished by the State

Government with effect from 1.4.2003 and the said fact was informed to

the Commission about the abolition of the post and it was requested to

suitably amend the schedule as per Regulation 3 of the Regulations of

1955. Since the post of Divisional Commissioner was not in existence and

the same having been abolished there was no question of including the

Divisional Commissioner as a Member of Selection Committee specially

when the Government of Karnataka has already informed the Commission to

amend the schedule. When the post of Divisional Commissioner was not

there that would not render the selection or would not make the

Selection Committee non-functional as out of the seven Members six

Members participated in the Selection Committee and Regulation 3

clearly says that absence of a Member, other than the Chairman or

Member of the Commission, shall not invalidate the proceedings of the

Committee if more than half the Members of the Committee had attended

its meetings. Therefore, this contingency has already been taken care by

Regulation 3(3) that in case any Member is unable to participate in the

selection process except the Member of the Commission and more than

half of the members have attended the meeting, then the proceedings of

the Committee shall not vitiate in the absence of such Member. As such

the Selection Committee in the absence of Divisional Commissioner cannot

be said to be not properly constituted. More so there is no prejudice

caused to the appellants as out of the seven Members, six Members of

the Selection Committee were there which is more than 50%. As such,

nothing turns on this. We hold that the Selection Committee was properly

constituted.

9. Now, comes the question with regard to the selection of the

candidates. Normally, the recommendations of the Selection Committee

cannot be challenged except on the ground of mala fides or serious

violation of the statutory Rules. The Courts cannot sit as an appellate

authority to examine the recommendations of the Selection Committee like

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the Court of appeal. This discretion has been given to the Selection

Committee only and Courts rarely sit in court of appeal to examine the

selection of the candidates nor is the business of the Court to examine

each candidate and record its opinion. In this connection, learned

senior counsel for the appellants has taken us through various following

decisions of this Court.

(i) AIR 2003 SC 3044

Surya Dev Rai v. Ram Chander Rai & Ors.

(ii) (1993) 3 SCC 319

P.M.Bayas V. Union of India & Ors.

(iii) (1985) 4 SCC 417

Ashok Kumar Yadav & Ors. V. State of

Haryana & Ors. Etc.

(iv) (1981) 1 SCC 722

Ajay Hasia & Ors. V.

Khalid Mujib Sehravardi & Ors.

(v) 2007 (3) SCALE 219

Union Public Service Commission v.

S.Thiagarajan & Ors.

Mr.P.P.Rao, learned senior counsel appearing for the private respondents

invited our attention to the following decisions of this Court.

(i) (1976) 3 SCC 583

Dr.G.Sarana V. University of Lucknow & Ors.

(ii) (1980) @ SCC 355

Mrs. Kunda S.Kadam v. Dr.K.K.Soman & Ors.

(iii) (2002) 1 SCC 749

Ashok Nagar Welfare Association & Anr. V

R.K.Sharma & Ors.

Learned Senior Counsel for the Commission invited our attention to the

following decisions of this Court.

(i) (1973) 2 SCC 836

Union of India v. Mohan Lal Capoor & Ors.

(ii) (1981) 4 SCC 159

Lila Dhar V. State of Rajasthan & Ors.

(iii) (1985) 4 SCC 417

Ashok Kumar Yadav & Ors. V. State of

Haryana & Ors. Etc.

(iv) 1986 (Supp) SCC 617

R.S.Dass V. Union of India & Ors.etc.

(v) 1987 (Supp) SCC 401

State of U.P. V. Rafiquddin & Ors. Etc.

(vi) (1988) 2 SCC 242

Union Public Service Commission V.

Hiranyalal Dev & Ors. Etc.

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(vii) (1983) 3 SCC 241

Mehmood Alam Tariq & Ors. V.

State of Rajasthan & Ors.

(viii) (1990) 1 SCC 305

Dalpat Abasaheb Solunke & Ors. V.

Dr.B.S.Mahajan & Ors.

(ix) 1992 Supp. (2) SCC 481

National Institute of Mental Health

And Neuro Sciences v. Dr.K.Kalyana Raman & Ors.

(x) (1993) 1 SCC 17

Indian Airlines Corporation v.

Capt. K.C.Shukla & Ors.

(xi) 1993) 3 SCC 319

P.M.Bayas v. Union of India & Ors. Etc.

(xii) 1994 Supp. (1) SCC 454

C.P.Kalra v. Air India through its

Managing Director, Bombay & Ors.

(xiii) (1997) 1 SCC 280

Anil Katiyar (Mrs.) v. Union of India & Ors.

(xiv) (1997) 9 SCC 151

All India State Bank Officers\022Federation & Ors. V.

Union of India & Ors. Etc.

(xv) (1998) 3 SCC 694

Union of India & Anr. V.

N.Chandrasekharan & Ors.

(xvi) (2004) 6 SCC 786

Inder Parkash Gupta v.

State of J & K & Ors.

(xvii) (2006) 6 SCC 395

K.H.Siraj v, High Court of Kerala & Ors.

10. Keeping in view the ratio laid down by this Court in several

decisions, now we shall examine the argument of learned senior counsel

for the appellants which had been addressed. But we may at the very out

set observe that the Court while considering the proceedings of the

Selection Committee does not sit in a court of appeal. Courts have

limited scope to interfere, either selection is actuated with mala fide

or statutory provisions have not been followed. In the present case, 39

candidates were examined by the Selection Committee for being

recommended for appointment to the I.A,S. The selection process took

place between 24.11.2003 and 28.11.2003 whereby the Selection Committee

scrutinized the service records of the individual candidates and

interviewed them and the Selection Committee selected those candidates

who were found to be having outstanding merit and ability. The

Commission has fixed 50 marks for scrutiny of the service records and

50 marks were allotted for interview. It was also decided by the

Commission that the candidates would be eligible for selection only if

they secure 50% marks in each of the two components i.e. 25 marks in the

scrutiny of the service records and 25 marks in the interview. The

Commission has further laid down the norms for awarding marks for the

scrutiny of service records. 10 marks are awarded to a candidate if on

an assessment of service record he was found to be outstanding, 8 marks

if the service record was found to be very good and 5 marks if it was

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good. Candidates who have failed to secure 25 marks in the interview

were not held to be qualified. Similarly, the candidates who failed to

secure 25 marks on the basis of the service records were also not held

to be eligible. However, on facts no person was rejected on the ground

that he failed to secure 25 marks either on the basis of the service

records or on the basis of interview. The Tribunal while scrutinizing

the records sent by the Selection Committee set aside the selection of

eight candidates namely Sarvashri Anwar Pasha and K.Ramanna Naik, who

according to the Tribunal were wrongly selected. The block period is

five years for which the confidential records of the candidates were

scrutinized by the Selection Committee i.e. from 1997-98 to 2001-02. It

is alleged that the confidential report of Shri Anwar Pasa for the year

1998-99 was written on 14.6.2002 and for the year 1999-2000 was written

on 15.6.2002. It is further alleged that these confidential reports were

written beyond the time limit prescribed by Rule 8 of the Karnataka

Civil Services (Performance Reports) Rules, 1994 (hereinafter to be

referred to as the \023Rules of 1994\024) and the same could not have been

looked into by the Selection Committee. Therefore, the selection of Shri

Anwar Pasha was invalid. It was found by the Selection Committee that

the Annual Confidential Reports of this Officer for these two years

were not written within the time limit prescribed as required under Rule

8 of the Rules of 1994. But it was pointed out that Rule 8 of the Rules

of 1994 was amended in 1999 and the time limit prescribed was done away

with retrospective effect. It was provided as per clause (b) of Rule 5

of the amending Rules of 1999 that the reports written or reviewed or

accepted in accordance with the 1994 Rules as amended in the year 1999

shall be deemed to be valid for the purpose of that rule. But in view of

the retrospective amendment of the Rules of 1999, the time limit having

been done away with the reports could have been taken into

consideration but it was further pointed out that the Rules of 1994 were

repealed in 2000 and the provisions of Karnataka Civil Services

(Performance Reports) Rules, 2000 (hereinafter to be referred to as the

Rules of 2000) came into force. Rule 13 of the Rules of 2000 provided

that the repeal shall not affect the previous operation of the 1994

Rules or anything duly done or suffered there under or affect any right,

liability or obligation acquired, accrued or incurred under those Rules.

Therefore, so far as the annual confidential reports in respect of

Shri Anwar Pasa which were written after the period of two years should

not have been taken into consideration by the Selection Committee, does

not survive because the Rules of 2000 repealed the Rules of 1994 and

consequential amendment of Rules of 1999 was done away with. Therefore,

the reports for the years 1998-99 and 1999-2000 cannot be taken away and

these two ACRs cannot be ignored and it has been rightly not ignored

by the Selection Committee. More so, if the ACRS are not written or

reviewed, then the incumbent is not responsible for it and why should he

suffer on account of that. The authority who is under obligation to

complete the formalities having failed to do so till the lapse of time

why the incumbent should be punished. We fail to appreciate the

submissions of the parties before the Tribunal and the view taken by the

Tribunal also. It was also pointed that the operation of the Rules of

1999 was stayed by the Tribunal, that may be so. But even thereafter

also when the Rules of 2000 have repealed the Rules of 1994, then what

turns on the stay order granted by the Tribunal and we cannot hold the

incumbent responsible for it and deprive him the due consideration if

there is failure on the part of the officers to discharge their duties

in writing the ACRs, the incumbent should not be allowed to suffer.

Therefore, we are of opinion that it is not a case in which there was

any statutory breach of Rules committed by the Selection Committee in

taking into consideration the ACRs of Shri Anwar Pasha. In the case of

another candidate i.e. Shri K.Ramanna Naik, his confidential reports for

the years 2000-2001 and 2002-2002 were not written in time in terms of

Rule 8 of the Rules of 1994. Therefore, special reports were obtained,

that too is also covered by the Karnataka Civil Services (Performance

Reports) (Amendment) Rules, 1996. Rule 11-A says that when performance

reports in respect of officers are not available for one or more years,

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the appointing authority, for the reasons to be recorded in writing, may

direct the concerned reporting officer or the reviewing authority to

prepare and submit the report within a specified time for the entire

period or for each year for which the report was not written. There

again the question is failure on the part of the reporting officer or

the reviewing authority not writing the report of the officer for which

the officer cannot be made to suffer. Therefore, in this background,

provisions have been made for special reports and in the administrative

jurisprudence special reports can be sought for in respect of any

officer whenever his case comes for consideration and if the Selection

Committee wants to have the up to date report of that incumbent. It is

the established practice to call for such kind of special reports. The

idea is that for not reporting the annual confidential reports of the

incumbent, why the incumbent should be made to suffer. Therefore, the

Selection Committee or the concerned authority can always ask for the

annual confidential reports which were not written for a particular year

by the reporting authority or by the reviewing authority or in some

cases it can also seek a special report. Such practice cannot be said to

be unusual practice in administrative jurisprudence. In the present

case, it appears that a special report in respect of Sh. K. Ramanna

Naik was obtained and that was considered by the Selection Committee.

Therefore, this procedure adopted by the Selection Committee cannot be

found to be arbitrary or in any way discriminatory. Consideration of

both these Officers cannot be faulted on that ground.

11. It is also contended that the marking given by the Selection

Committee was arbitrary. The grievance was that confidential report of

Shri S.Daya Shankar for the year 2000-2001 was not available and in

case of Sri R. Pramapriya, the confidential report for the year 1997=98

was not available. Yet the reports of Shri S.Daya Shankar was assessed

to be outstanding and Shri R.Ramapriya was assessed to be very good

without there being any basis for it. This was found by the Tribunal

to be patently arbitrary. It is the selection process and what

prevailed with the Committee after review of the annual confidential

reports of all these officers cannot be dilated in writing. When the

Selection Committee sits and considers the candidature of both the

officers and in case of both the officers, looking at the 5 years

annual confidential reports, one is found to be over all outstanding

and the other is found to be over all very good, this marking of the

Selection Committee cannot be interfered with in extraordinary

jurisdiction or even by the Tribunal. We fail to understand how the

Tribunal can sit as an appellate authority to call for the personal

records and constitute selection committee to undertake this exercise.

This power is not given to the Tribunal and it should be clearly

understood that the assessment of the Selection Committee is not subject

to appeal either before the Tribunal or by the Courts. One has to give

credit to the Selection Committee for making their assessment and it is

not subject to appeal. Taking the over all view of the ACRs of the

candidates, one may be held to be very good and another may be held to

be good. If this type of interference is permitted then it would

virtually amount that the Tribunals and the High Courts started sitting

as Selection Committee or act as an appellate authority over the

selection. It is not their domain, it should be clearly understood, as

has been clearly held by this Court in a number of decisions. Our

attention was invited to a decision of this Court in R.S.Dass (supra)[

1986 (Supp.) SCC 617] wherein at paragraph 28 it was held as follows:

\023 It is true that where merit is the sole

basis of promotion, the power of selection becomes

wide and liable to be abused with less difficulty. But

that does not justify presumption regarding arbitrary

exercise of power. The machinery designed for

preparation of Select List under the regulations for

promotion to All India Service, ensures object and

impartial selection. The Selection Committee is

constituted by high ranking responsible officers

presided over by Chairman or a Member of the Union

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Public Service Commission. There is no reason to hold

that they would not act in fair and impartial manner

in making selection. The recommendations of the

Selection Committee are scrutinized by the State

Government and if it finds any discrimination in the

selection it has power to refer the matter to the

Commission with its recommendations. The Commission is

under a legal obligation to consider the views

expressed by the State Government along with the

records of officers, before approving the Select List.

The Selection Committee and the Commission both

include persons having requisite knowledge, experience

and expertise to assess the service records and

ability to adjudge the suitability of officers. In

this view we find no good reasons to hold that in the

absence of reasons the selection would be made

arbitrary. Where power is vested in high authority

there is a presumption that the same would be

exercised in a reasonable manner and if the selection

is made on extraneous considerations, in arbitrary

manner the courts have ample power to strike down the

same and that is an adequate safeguard against the

arbitrary exercise of power. \023

12. Our attention was invited to a decision of this Court in Union

Public Service Commission v. Hiranyalal Dev & Ors etc.[(1988) 2 SCC 242]

wherein it was held as follows:

\023 The mere fact that the Selection Committee

erred in taking into account the non-existent adverse

remarks does not necessarily mean that the respondent

should have been categorized or considered as \021very

good\022 vis-`-vis others who were also in the field of

choice. How to categorize in the light of the relevant

records and what norms to apply in making the

assessment are exclusively the functions of the

Selection Committee. This function had to be

discharged by the Selection Committee by applying the

same norm and tests and the selection was also to be

made by the Selection Committee as per the relevant

rules. The powers to make selection were vested unto

the Selection Committee under the relevant rules and

the Tribunal could not have played the role which the

Selection Committee had to play by making conjectures

and surmises. The proper order for the Tribunal to

pass under the circumstances was to direct the

Selection Committee to reconsider the merits of the

respondent vis-`-vis the official who was junior to

him. The jurisdiction of the Supreme Court under

Article 136 in this respect is, however, wider and

cannot be equated with that of the Tribunal.\024

13. Our attention was invited to a decision of this Court in

Dalpat Abasaheb Solunke & Ors. V. Dr.B.S.Mahajan & Ors. [(1990) 1 SCC

305] wherein it was observed as follows:

\023 It is not the function of the court to hear

appeals over the decisions of the Selection Committees

and to scrutinize the relative merits of the

candidates. Whether a candidate is fit for a

particular post or not has to be decided by the duly

constituted Selection Committee which has the

expertise on the subject. The court has no such

expertise. In the present case the University had

constituted the Committee in due compliance with the

relevant statutes. The Committee consisted of experts

and it selected the candidates after going through all

the relevant material before it. In sitting in appeal

over the selection so made and in setting it aside on

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the ground of the so called comparative merits of the

candidates as assessed by the court, the High Court

went wrong and exceeded its jurisdiction. \023

14. Similarly in National Institute of Mental Health and Neuro

Sciences v. Dr.K.Kalyana Raman & Ors. [ 1992 Supp. (2) SCC 481], this

Court held that the expert committee finding should not be lightly

inferred. It was held as follows :

\023 The function of the Selection Committee is

neither judicial nor adjudicatory. It is purely

administrative. Where selection has been made by the

assessment of relative merits of rival candidates

determined in the course of the interview of

candidates possessing the required eligibility and

there is no rule or regulation brought to the notice

of the Court requiring the Selection Committee to

record reasons, the Selection Committee is under no

legal obligation to record reasons in support of its

decision of selecting one candidate in preference to

another. Even the principles of natural justice do not

require an administrative authority or a Selection

Committee or an examiner to record reasons for the

selection or non-selection of a person in the absence

of statutory requirement.\024

15. Our attention was invited to a decision of this Court in

P.M.Bayas v. Union of India & Ors. [(1993) 3 SCC 319]. In this case

with regard to the IAS (Recruitment) Rules, 1954 which contemplated that

special cases from among persons and special circumstances occurring in

the rules could justify the selection of the incumbents or not, in that

context, their Lordships held as follows:

\023 We are satisfied that there were \023special

circumstances\024 before the State Government to make

recruitment under the Regulations. In the face of

clear pleadings on the record the Tribunal was not

justified in holding that there as no material on the

record to show the existence of \023special

circumstances\024. The Tribunal was wholly unjustified

in asking the Central Government to show the existence

of \023special circumstances\024 in terms of Rule 8(2) of

the Rules. As interpreted by us the scheme of the

Rules and the Regulations clearly show that it is the

State Government which has to be satisfied regarding

the existence of \023special circumstances\024.\024

16. Our attention was invited to a decision of this Court in Anil

Katiyar (Mrs.) v. Union of India & Ors. [(1997) 1 SCC 280], it was

observed as follows:

\023The question is whether the action of the DPC in

grading appellant as \023very good\024 can be held to be

arbitrary. Shri G.L.Sanghi, the learned Senior Counsel

appearing for the Union Public Service Commission,

has placed before us the confidential procedure

followed by the DPCs in the Union Public Service

Commission for giving overall gradings, including that

of \023outstanding\024, to an officer. Having regard to the

said confidential procedure which is followed by the

Union Public Service Commission, we are unable to hold

that the decision of the DPC in grading the appellant

as \023very good\024 instead of \023outstanding\024 can be said to

be arbitrary. No ground is, therefore, made out for

interference with the selection of Respondent 4 by the

DPC on the basis of which he has been appointed as

Deputy Government Advocate. But, at the same time, it

must be held that the Tribunal was in error in going

into the question whether the appellant had been

rightly graded as \023outstanding\024 in the ACRs for the

years 1990-91 and 1991-92. The observations of the

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Tribunal that out of the two \023outstanding\024 gradings

given to the appellant one \023outstanding\024 grading does

not flow from various parameters given and the reports

entered therein, cannot, therefore, be upheld....\024

Therefore, in view of catena of cases, Courts normally do not sit in

the court of appeal to assess the ARCs and much less the Tribunal can be

given this power to constitute an independent Selection Committee over

the statutory Selection Committee. The guidelines have already been

given by the Commission as to how the ACRs to be assessed and how the

marking has to be made. These guidelines take care of the proper

scrutiny and not only by the Selection Committee but also the views of

the State Government are obtained and ultimately the Commission after

scrutiny prepares the final list which is sent to the Central Government

for appointment. There also it is not binding on the Central Government

to appoint all the persons as recommended and the Central Government can

withhold the appointment of some persons so mentioned in the select

list for reasons recorded. Therefore, if the assessment of ACRs in

respectof Shri S.Dayashankar and Shri R.Ramapriya should have been made

as \023outstanding\024 or \023very good\024 it is within the domain of the Selection

Committee and we cannot sit in the court of appeal to assess whether

Shri R.Ramapriya has been rightly assessed or Shri Dayashankar has been

wrongly assessed. The overall assessment of ACRs of both the Officers

were taken; one was found to be \023outstanding\024 and the second one was

found to be \023very good\024. This assessment cannot be made subject of

Courts or Tribunal\022s scrutiny unless actuated by mala fide.

17. In the case of Shri S.B.Kolhar, Shri R.S.Phonde and Shri

Puttegowda, the assessment of the reporting officers and the reviewing

officers in the State have been found to be \023outstanding\024. But the

Selection Committee downgraded the assessment to \023very good\024 and this

has provided grounds to the Tribunal to interfere with the selection of

others. The Selection Committee normally abides by the assessment made

by the reporting officer and the reviewing authority. But the Selection

Committee is not powerless. After reviewing the candidates\022 performance,

the Selection Committee can certainly make its own assessment. The

guidelines which have been issued by the Commission also enables the

Selection Committee to assess the remarks made by the reporting officer

or the reviewing officer and after taking into consideration various

factors like the meritorious work done or any punishment or adverse

remarks made or subsequently expunged on representation can review the

assessment about the candidates. Such review of the assessment is fully

within the competence of the Selection Committee and in this connection

the observations of this Court may be relevant in Ramanand Prasad Singh

& Anr. V. Union of India & Ors. Etc. [(1996) 4 SCC 64], which reads as

under :

\023 The Committee applies its mind to the service

records and makes its own assessment of the service

records of the candidates marking them as outstanding,

very good, good and so on. The selection Committee

does not necessarily adopt the same grading which is

given by the Reporting/ Reviewing Officer in respect

of each of the candidates. In fact the Selection

Committee makes an overall relative assessment of the

confidential report dossiers of the officers in the

zone of consideration. Thus, it does not evaluate the

confidential report dossier of an individual in

isolation. It is after this comparative assessment

that the best candidates are put in the Select List.\005\024

18. Our attention was invited to a decision of this Court in UPSC

v. K.Rajaiah & Ors. [ (2005) 10 SCC 15]wherein it has been held as

follows:

\023 That being the legal position, the Court

should not have faulted the so-called down gradation

of the first respondent for one of the years. Legally

speaking, the term\024 downgradation\024 is an inappropriate

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expression. The power to classify as \023outstanding\024,

\023very good\024 , \023good\024 and \023unfit\024 is vested with the

Selection Committee. That is a function incidental to

the selection process. The classification given by the

State Government authorities in the ACRs is not

binding on the Committee. No doubt, the Committee is

by and large guided by the classification adopted by

the State Government but, for good reasons, the

Selection Committee can evolve its own classification

which may be at variance with the gradation given in

the ACRs. That is what has been done in the instant

case in respect of the year 1993-94. Such

classification is within the prerogative of the

Selection Committee and no reasons need be recorded,

though it is desirable that in a case of gradation at

variance with that of the State Government, it would

be desirable to record reasons. But having regard to

the nature of the function and the power confided to

the Selection Committee under Regulation 5(4), it is

not a legal requirement that reasons should be

recorded for classifying an officer at variance with

the State Government\022s decision.\024

Therefore, the view taken by the High Court is correct that it is always

within the power of the Selection Committee to record its own assessment

about the selection which may be at variance with that of the reporting

officer or reviewing officer.

19. It was also pointed out that in the case of Shri N. Sriraman

and Shri K.Ramana Naik, the Selection Committee downgraded their

reports from \023outstanding\024 to \023very good\024 yet they were selected.

Similar is the case with Sri K.L.Lokanatha who has not been selected.

Like wise the Selection Committee upgraded the assessment for the year

2001-02 from \023very good\024 to \023outstanding\024 yet he could not be selected.

Therefore, this is also the process of selection and the Selection

Committee constituted by the Commission and headed by the Member of the

Commission, we have to trust their assessment unless it is actuated

with malice or apparent mistake committed by them. It is not in the case

of pick and choose, while selection has been made rationally. The

selection by expert bodies unless actuated with malice or there is

apparent error should not be interfered with. Lastly, the High Court

considered the case of the two candidates who were eliminated by the

Selection Committee and their cases were not sent to the Commission for

selection to the I.A.S.cadre. The High Court found that this was the

selection process by the Screening Committee headed by the Chief

Secretary and these persons were not found more meritorious to be

recommended for appointment. This assessment of the Screening Committee

was found by the High Court to be proper and there was nothing on

record to show that the candidates who were short-listed were not

meritorious.

20. As a result of our above discussion, we find that there is no

merit in these appeals and consequently, the appeals are dismissed.

There would be no order as to costs.

Contempt Petition ) No.131 of 2006:

21. In view of the order passed in the civil appeals, we find no

merit in the contempt petition and the same is dismissed.