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PETITIONER:

P.M. BAYAS

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT23/03/1993

BENCH:

KULDIP SINGH (J)

BENCH:

KULDIP SINGH (J)

KASLIWAL, N.M. (J)

CITATION:

1994 AIR 1281 1993 SCR (2) 567

1993 SCC (3) 319 JT 1993 (2) 496

1993 SCALE (2)228

ACT:

Indian Administrative Service (Recruitment) Rules, 1954:

Rules 4(1)(c) and 8(2)-Special selection-In Special cases

from among persons-Meaning of-'Special circumstances'-

Existence of-Satisfaction of State Government in the first

instance-Central Government's role-Only at the time of

appointment.

Words & Phrases:

"In special cases from among persons" and "In Special

circumstances"-Meaning in the context of LAS (Recruitment)

Rules, 1954.

HEADNOTE:

The Respondents substantive members of the Maharashtra

Civil Service- challenged before the Central Administrative

Tribunal the selection of the appellants to IAS by way of

selection under the IAS (Recruitment) Rules, 1954. They

claimed that their names were placed on the select list for

promotion to IAS, but they could not be appointed because

the vacancies occurring in the State were being filled by

resorting to special selection and appointing persons like

the appellants from the non-State Civil Service. They also

sought quashing of the appointment of five other persons who

had already been appointed to IAS by way of special

selection. The Tribunal quashed the selection of the

appellants to LAS, and dismissed the application in respect

of the other persons. Aggrieved by the said judgment of the

Tribunal quashing their selections, the appellants preferred

the present appeals.

These appeals called for interpretation of the expression

'in special cases from among persons' in Rule 4(1) (c) and

the expression 'in special circumstances' in Rule 8(2) of

the. LAS (Recruitment) Rules, 1954.

Allowing the appeals, this Court,

HELD- 11.The expression "In special cases from among persons

in

568

S.4(1)(c) of the LAS (Recruitment) Rules, 1954 means the

selection as special cases of the persons who have

established their outstanding merit and ability while

serving the State. Members of the State Civil Service who

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are not 'outstanding' but are only 'good' and 'very good'

are also eligible to be considered for appointment to [AS

but under Rule 8(2) of the Rules, it is only an

'outstanding' officer who is eligible. It is the

outstanding merit and ability which makes him a 'special

case' in terms of Rule 8(2) of the Rules. Rule 8(2) of the

Rules read with Regulation 3 of the Regulations lays down

the procedure for making the special selection provided

under Rule 4(1)(c) of the Rules. The Central Government,

being the appointing authority to the IAS, has to be finally

satisfied about the existence of the " special

circumstances' as a condition precedent for making special

recruitment. The "special circumstances' are to be spelled-

out from Rule 8(2) of the Rules read with Regulation 3 of

the Regulations. Rule 8(2) which talks of "outstanding

ability and merit" when read with Regulation 3(1) and 3(4A)

of the Regulations makes it clear that the 'special cir-

cumstances' required to be seen are (i) the existence of

officers with 12 years of continuous service in a gazetted

post under the State Government other than State Civil

Service Officers who are of outstanding merit and ability

and (ii) the satisfaction of the State Government that, in

public interest, it is necessary to consider such officers

for promotion to the IAS. [573 D-G]

1.2. Reading Rule 8(2) and the Regulations together it is

clear that the process of selection has to be initiated by

the State Government and as such it is for the State

Government in the first instance to be satisfied regarding

the existence of the 'special circumstances". The Central

Government being the appointing authority has to finally

approve the State Government's proposals which reach the

Central Government through the process of selection. [573 H;

574 A, E]

1.3. In the Instance case, there were "special

circumstances" 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 was no material on the record to show the

existence of " special circumstances". The Tribunal was

wholly unjustified in asking the Central Government to show

the existence of "special circumstances" in terms of Rule

8(2) of the Rules. The scheme of the Rules and the Regula-

tions clearly show that it is the State Government which has

to he satisfied

569

regarding the existence of "special circumstances'. The

Central Government comes into the picture at the last stage

when it makes the appointment under Regulation 3(4) and

3(4A) of the Regulations. [575 H, 576 A-B]

1.4. It cannot be said that in terms of Rule 9(1) read with

Rule 9(3)(a)(ii) of the Rules, no vacancies were made

available for special recruits. In fact the stand of the

State Government before the Tribunal clearly shows that

vacancies were available for appointment of the special

recruits. [576 C-D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No.1414 of 1993.

From the Judgment and Order dated 19.7.1991 of the Central

Administrative Tribunal, Bombay in O.A. No.556 of 1990.

WITH

Civil Appeal No. 1415 of 1993.

AND

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Civil Appeal No. 1416 of 1993.

V.R. Reddy, Addl. Solicitor General, Ashok H. Desai, Harish

N. Salve, N.B. Shetye, V.R. Manohar, P.H. Parekh, Sunil

Dogra, Ms. Bina, A.S. Bhasme, C.V. Subha Rao, Chander Uday

Singh and Mukul Mudgal for the appearing parties.

The Judgment of the Court was delivered by

KULDIP SINGH,J. Leave granted in both the Special Leave

Petitions.

We are called upon to interpret the expression "in special

cases from among persons" in Rule 4(1)(c) and the expression

"in special circumstances" in Rule 8(2) of the Indian

Administrative Service (Recruitment) Rules, 1954 (the

Rules).

S.H. School and three others (Civil Service Officers) who

are substantive members of the Maharashtra Civil Service

challenged before the Central Administrative Tribunal, New

Bombay Bench the selection of W.G. Gurde and P.M. Bayas to

the Indians Administrative Service by way

570

of special selection under the Rules. They also sought

quashing of the appointment of five other persons

(respondents 4 to 8 before the Tribunal) who had already

been appointed to the Indian Administrative Service (IAS) by

way of special selection. The Tribunal dismissed the

application of School and others so far as the five persons

already appointed to the LAS, respondents 4 to 8, on the

ground that the application was belated and barred by

limitation. The Tribunal, however, allowed the application

so far as Gurde and Bayas were concerned and quashed their

selection to the IAS. These two appeals by way of special

leave are by Bayas and the State of Maharashtra against the

judgment of the Tribunal dated July 19, 1991.

The case of the Civil Service Officers before the Tribunal

was that they were substantive members of Maharashtra Civil

Service for about 22/25 years and their names were placed on

the select list for promotion to IAS since the years

1986/1988 but they could not be appointed to the LAS because

the vacancies occurring in the State of Maharashtra were

being filled by resorting to special selection and

appointing persons like the appellant Bayas and others.

We may at this stage notice the relevant Rules. Rules 4(1)

and 8(2) of the Rules are reproduced hereunder:

"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;

(aa) by selection of persons from among the

Emergency commissioned Officers and Short

Service Commissioned Officers of the Armed

Forces of the Union "who were commissioned on

or after the 1st November, 1962 but before the

10th January, 1968, or who had joined any pre-

commission training before the later date, but

who were commissioned on or after that date'.

(b) by promotion of substantive member of a

State Civil Service;

(c) by selection, in special cases from

among persons, who

571

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.

8(2) The Central Government may, in special

circumstances and on the recommendation of the

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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 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 or

that State but who holds a gazetted post in a

substantive capacity."

In exercise of the power under Rule 8(2) of the Rules the

Central Government has framed the Regulations called "Indian

Administrative Service (Appointment by Selection)

Regulations, 1956 (the Regulations).

Regulations 3(1), 3(2), 3(2A), 3(3), 3(4) and 3(4A) of the

Regulations which are relevant are reproduced hereunder:

"3(1) In accordance with the provision

contained in subrule (2) of rule 8 of the

Recruitment Rules, the State Government may,

from time to time, consider the cases of

persons not belonging to the State Civil

Service but serving in connection with the

affairs of the State or States in the case of

Joint Cadres, who

(i) are of outstanding merit and ability;

and

(ii) have completed not less than 12 years of

continuous service in a gazetted post under

the State Government or in the case of Joint

Cadre, under any one of the State Governments

constituting the Joint Cadre, holding that

post in a substantive capacity and propose

the-names of officers suitable for appointment

to the service.

3(2) the Selection Committee set up in

accordance with

572

regulation 3 of the Indian Administrative

Service (Appointment by Promotion)

Regulations, 1955, shall consider the

proposals of the State Government made in sub-

regulation (1) and recommend the names of such

of these officers, if any but not exceeding

the number of vacancies sought to be filled up

by the State Government concerned under these

regulations, during the next 12 months, as are

in their opinion, suitable for appointment to

the Service.

3(2A) the suitability of a person for

appointment to the Service shall be determined

by a scrutiny of his confidential roll. and by

interviewing him.

3(3) The recommendations of the Selection

Committee made under Sub-regulation (2) shall

be placed before the State Government

concerned and the latter shall forward those

recommendations to the Commission for

approval along with

(i) the confidential record of the officers

concerned; and

(ii) the observations, if any, of the State

Government on the recommendations of the

Selection Committee.

3(4) On their being finally approved by the

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Commission, appointments of such officers to

the Service shall be made by the Central

Government.

3(4A) Notwithstanding anything contained in

sub-regulation (4), the Central Government may

not appoint any person to the service under

these regulations if it is of the opinion

that, during the period intervening between

the final approval by the Commission and the

date of proposed appointment there occurs any

deterioration in the work of such officer or

there is any other ground which renders him

unsuitable for appointment to the service or,

it is necessary and expedient so to do in

public interest:

Provided that no such decision shall be taken

by the

573

Central Government without consulting the Commission.'

Special selection was held in the year 1990 under the

Regulations and Bayas and Gurde, on the criteria of

outstanding merit and ability, were selected to the IAS and

their names were brought on the select list. The Civil

Service Officers challenged their selection primarily on the

ground that there was no material on the record to show

that,-there were special circumstances" to the satisfaction

of the Central Government. The Tribunal accepted the

contention and set aside the selection of Gurde and Bayas.

We may examine the scheme of the Rules and Regulations.

Rule 4(1) of the Rules provides four sources of recruitment

to the IAS. The competitive examination and by promotion of

substantive members of the State Civil Service are the two

main sources of recruitment. Rule 4(1)(c) provides

recruitment to IAS '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 the State Civil Service'. "In special cases

from among persons' means the selection as special cases of

the persons who have established their outstanding merit and

ability while serving the State. Members of the State Civil

Service who are not 'outstanding' but are only 'good' and

'very good' are also eligible to be considered for

appointment to IAS but under Rule 8(2) of the Rules, it is

only an 'outstanding officer who is eligible. It is the

outstanding merit and ability which makes him a 'special

case' in terms of Rule 8(2) of the Rules. Rule 8(2) of the

Rules read with Regulation 3 of the Regulations lays down

the procedure for making the special selection provided

under Rule 4(1)(c) of the Rules. The Central Government,

being the appointing authority to the IAS, has to be finally

satisfied about the existence of the "special circumstances"

as a condition precedent for making special recruitment.

The "special circumstances" are to be spelled-out from Rule

8(2) of the Rules read with Regulation 3 of the Regulations.

Rule 8(2) which talks of "outstanding ability and merit'

when read with Regulation 3(1) and 3(4A) of the Regulations

makes it clear that the "special circumstances' required to

be seen are (i) the existence of officers with 12 years of

continuous service in a gazetted post under the State

Government other than State Civil Service Officers who

are of outstanding merit and ability and (ii) the

satisfaction of the State Government that, in public

interest, it is necessary to consider such officers for

promotion to the IAS.

574

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Reading Rule 8(2) and the Regulations together it is further

clear that the process of selection has to be initiated by

the State Government and as such it is for the State

Government in the first instance to be satisfied regarding

the existence of the "special circumstances' as culled-out

by us in the para above.

It is the State Government which proposes the names of

suitable officers under the Regulations for appointment by

selection to the IAS. The proposals of the State Government

are considered by the Selection Committee and its

recommendations are place before the State Government.

Thereafter the State Government sends the recommendations

alongwith its observations, if any, to. the Union Public

Service Commission for approval. When finally approved by

the Commission the appointments are made by the Central

Government. Regulation 3(4A) further provides that the

Central Government may not appoint any person if it is of

the opinion that, during the period intervening between the

final approval by the Commission and the date of proposed

appointment, there occurs any deterioration in the work of

such officer or there is any other ground which renders him

unsuitable for appointment or it is necessary and expedient

so to do in public interest. It is, thus, obvious that the

"special circumstances" as required under the Rules and the

Regulations have to be seen by the State Government. The

Central Government being the appointing authority has to

finally approve the State Government's proposals which reach

the Central Government through the process of selection.

The Tribunal allowed the application of the Civil Service

Officers on the short ground that the Central Government

failed to show the existence of "special circumstances" for

making the recruitment under Rule 4(1)(c) read with rule

8(2) of the Rules and the Regulations. The Tribunal held as

under:

", As we are of the view that no 'special

circumstances" existed and that the special

circumstances, if any, have not been pointed

out by the central Government which has kept

mum apart from taking the plea that 'special

circumstances' existed and that there was not

violation of rules, this method of selection

adopted by the respondents in selecting

respondent Nos.8 & 10 is violative of rules in

575

the absence of condition precedent for their selection."

We have given our thoughtful consideration to the reasoning

and the conclusions reached by the Tribunal. We are of the

view that the Tribunal fell into patent error in setting

aside the selection of Gurde and Bayas.

The State Government in its written reply filed before the

Tribunal stated as under:

"It is, therefore, clear that these are the

special cases where the officers of

outstanding merit and ability are only held

eligible for consideration by the Selection

Committee unlike in case of S.C.S. Officers

who me to be graded outstanding, 'very good',

'good' and 'unfit' and even an officer in

'good' category can be appointed to

I.A.S.......... The respondent Nos. 4 to 10

have been found to be the officers of

outstanding ability and merit by the Selection

Committee and, therefore, the averments made

by the applicants in this paragraph that these

officers arc less meritorious is their own

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presumption........ it is only in these special

circumstances when such officers become

available, that recruitment to the IA.S. is

made by the method of selection. Appointments

have been made to the I.A.S. under the I.A.S.

(Appointment by Selection) Regulations, 1956

only. when outstanding Officers could become

available.'

The State Government in its written reply before the

Tribunal justified the recruitment under the Regulations by

stating as under:

"It is submitted that the need of the officers

having experience in the fields other than the

field of Revenue Administration is ever

increasing with the multiplicity of welfare

scheme of Government and Government, there-

fore, feels the need to utilise the services

of experienced and outstanding officers from

the fields other than the S.C.S. Officers"

We are satisfied that there were "special circumstances"

before the State Government to make recruitment under the

Regulations. In the face

576

of clear pleadings on the record the Tribunal was not

justified in holding that there was no material on the

record to show the existence of 'special circumstances'.

The Tribunal was wholly unjustified in asking the Central

Government to show the existence of "special circumstances'

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 "special circumstances'. The

Central Government comes into the picture at the last stage

when it makes the appointment under Regulation 3(4) and

3(4A) of the Regulations.

Learned counsel for the respondents-Civil Service Officers

invited our attention to the proviso to Rule 9(1) read with

Rule9(3)(a)(ii) of the Rules and argued that in terms of

these Rules no vacancies are made available for the special

recruits and as such appellant Bayas and Gurde cannot be

offered appointments to the IAS. The point as such was not

raised before the Tribunal. We have no material on the

record to support the contention of the learned counsel. On

the other hand, the stand of the State Government before the

Tribunal clearly shows that he vacancies were available for

the appointment of Bayas and Gurde in terms of Rule 9 of the

Rules. The relevant extract is reproduced hereunder:

"In fact, rules clearly provide that upto 15%

of the promotion posts can be filled up by

appointment of the non-SCS Officers by

selection. This limit has not been exceeded

by the appointment of the Respondents Nos.4 to

8 and also if the Respondent Nos.9 and 10 are

also appointed. Respondent Nos. 9 and 10 have

been selected by the Selection Committee

against the vacancies which are within the

limit prescribed under Rule 9 of the Recruit-

ment Rules."

We, therefore, allow the appeals set aside the impugned

judgment of the Tribunal dated July 19, 1991 and dismiss the

application of the Civil Service Officers before the Central

Administration Tribunal. No costs.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1416 of

1993.

Special leave granted.

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577

In view of the our judgment in Civil Appeal No.1414 of 1993

arising out of Special Leave Petition (civil) No.17028 of

1991 dated March 23,1993 this appeal is allowed and the

interim order dated September 9, 1991 in O.A. No.530 of 1991

pending before the Central Administrative Tribunal, Bombay

is quashed. No costs.

G.N. Appeals allowed.

578