IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 05.03.2010 Coram: The Hon'ble Mr.Justice D.MURUGESAN AND The Hon'ble Mr.Justice M.SATHYANARAYANAN WRIT PETITION No.34087 of 2007 and W.P.M.P.No.1 of 2007 S.M.Kannaji, Son of B.Ram, Working as Transport Commissioner- cum-Additional Secretary to Government, Puducherry. ... Petitioner Versus 1. Union of India rep. by the Secretary to Government, Ministry of Home Affairs, New Delhi. 2. Secretary to Government for Department of Personnel and training, New Delhi. 3. Secretary, Union Public Service Commission, New Delhi. 4. Chief Secretary to Government, Government of Pondicherry, Puducherry. 5. The Central Administrative Tribunal, Madras Bench, rep. by its Registrar. ... Respondents Writ Petition under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari to call for the records of the 5th Respondent in O.A.No.785 of 2006 dated 29.6.2007 and to quash the same. For Petitioner .. Mr.V.Ajayakumar For Respondents .. Mr.K.Sridhar for R3 Mr.Syed Mustafa, AGP for R4 No appearance for R1 and R2. https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the court was made by D.Murugesan, J) This writ petition is filed challenging the order of the Central Administrative Tribunal, made in O.A.No.785 of 2006 dated 29.6.2007, whereby, the prayer of the petitioner seeking for a direction to declare that Rule 5(3) of the Indian Administrative Service (Appointment by promotion) Regulations, 1955 as illegal and for consequential direction to the Respondents to consider and promote the petitioner to Indian Administrative Service cadre with all consequential benefits, was negatived. 2. The grievance of the petitioner has arisen under the following circumstances:- The petitioner was appointed as Pondicherry Civil Services Officer by way of direct recruitment and he joined in the said post on 27.7.1980. Thereafter, he was promoted to the Selection Grade Pondicherry Civil Services Officer in the cadre of Deputy Secretary and then to the post of Joint Secretary and finally, on 4.7.2002 to the post of Additional Secretary(Non Functional). According to the petitioner, he was the senior most in the Pondicherry cadre and stands No.1 in the seniority. 3. In view of his experience as well as other eligibility in respect of qualification to be promoted to the cadre of Indian Administrative Service, his name was included by the DPC in the year 2005 and was placed in Serial No.12 in the Select List. However, he could not be promoted as there was only 8 vacancies available at the relevant year. Thereafter, he was placed in 4th Rank for the next year i.e. 2006. By that time he was considered for appointment by promotion, he has crossed the age of 54 years and therefore, his name was not considered in terms of Rule 5(3) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as "the Regulations"). Hence, he was constrained to approach the Tribunal with the prayer, which we have referred to in the earlier para of this order. The Original Application came to be rejected by the Tribunal giving the present cause of action to file this writ petition. 4. Mr.Ajayakumar, learned counsel appearing for the petitioner would initially placed two submissions on the basis of the Regulation 5(3) of the Regulations. According to the learned counsel the above age limit of 54 years was prescribed in 1983 when the age of retirement was prescribed as 58 years. Now, the age of retirement has been increased from 58 to 60 and hence, the Respondents 1 and 2 ought to have increased the age limit correspondingly considering the effects of rising the age of retirement and to this extent, the Regulation is ultra vires of the Constitution. However, the learned counsel would fairly submit that at present, he is not pressing the https://hcservices.ecourts.gov.in/hcservices/ said submission. 5. The learned counsel would further submit that in terms of the proviso to the Regulations, the petitioner's name should have been considered for inclusion in the fresh list to be prepared by the Committee even in the meanwhile, if he has attained the age of 54 years. According to the learned counsel, the petitioner could not be accommodated by way of appointment by promotion to IAS though his name was placed in the Select List for the year 2005 that could not have been materialised for the simple fact that there were only 8 vacancies and therefore, he was in the waiting list for the year 2005 and in terms of the proviso to the Regulations, his name should have been included for the next year even though he has crossed the age of 54 years. Non inclusion of name of the petitioner is therefore, contrary to the above said proviso to the Regulations. 6. On the other hand, Mr.Sridhar, learned counsel appearing for the Union Public Commission would submit that though the petitioner was considered for appointment by way of promotion to IAS cadre in the year 2005, he was not included in the Select List and in the absence of such inclusion of name of the petitioner in the select List, the benefit of the proviso to the Regulation 5(3) of the Regulation s will not be available to the petitioner. The learned counsel for the third Respondent would further submit that in fact the Minutes and the records containing the Select List were produced before the Tribunal and the same were considered by the Tribunal and thereafter only the above stand taken by the Respondent was accepted. In these circumstances, the learned counsel for the third Respondent would submit that there is no merit in the writ petition as the Tribunal has rightly decided the issue. 7. The learned Government Pleader (Pondicherry), has in fact submitted that the role of the Government is only to forward the names and except the said role, there is no scope for the Government to advance any arguments in this case. 8. We have considered the submissions made by the respective learned counsel. 9. For determining the issue, relevant proviso to the Regulations can be extracted. 5. Presumption of a list of suitable officers:- (1) ..... (2).... (3) The committee shall not consider the cases of the members of the State Civil Service who have attained the age of (54) years on the https://hcservices.ecourts.gov.in/hcservices/ first day of January of the year in which it meets: [Provided that a member of the State Civil Service whose name appears in the select list in force immediately before the date of the meeting of the Committee and who has not been appointed to the Service only because he was included provisionally in the select list shall be considered for inclusion in the fresh list to be prepared by the Committee even if he has in the meanwhile attained the age of fifty four years; [Provided further that a member of the State Civil Service who has attained the age of fifty- four years on the first day of January of the year in which the committee meet shall be considered by the Committee, if he was eligible for consideration on the first day of (January) of the years or of any of the years immediately preceding the year in which such meeting is held but could not be considered as no meeting of the Committee was held during such preceding year or years). (3-A) The Committee shall not consider the case of such member of State Civil Services who had been included in an earlier list and --- (a) had expressed his unwillingness for appointment to the Service under Regulation 9; Provided that he shall be considered for inclusion in the select list, if before the commencement of the year, he applies in writing, to the State Government expressing his willingness to be considered for appointment to the Service; (b) was not appointed to the Service by the Central Government under Regulation 10.] (4) The Selection Committee shall classify the eligible officers as 'outstanding', 'Very Good', 'Good', or 'Unfit' as the case may be, on an overall relative assessment of their Service records.] (5) The list shall be prepared by including the required number of names, first from amongst the officers finally classified as 'Outstanding' then from amongst those similarly classified as 'Very Good', and thereafter from amongst those similarly classified as 'Good', and the order of names inter se within each category shall be in the order of their seniority in the State Civil Services] [Provided that the name of any officer so included in the list, shall be treated as https://hcservices.ecourts.gov.in/hcservices/ provisional if the State Government withholds the integrity certificate in respect of such officer or any proceedings are contemplated or pending against him or anything adverse against him has come to the notice of the State Government]. 10. In so far as the said Regulation 5(3) of the Regulation s, in order to fill up the posts available in the Indian Administrative Service cadre through the Union Public Service Commission, 1/3rd of the posts are earmarked to the service candidates in the Union Territory under the control of the Central Government, leaving the remaining to be filled through direct recruitment. For the said purpose the Regulations viz., The Indian Administrative Service (Appointment by Promotion) Regulations, 1955 were framed in pursuant to sub-rule (1) of Rule 8 of Indian Administrative Service (Recruitment) Rules 1954, in consultation with the State Governments and the Union Public Service Commission. The said Rule is a complete code covering the consideration of the service candidates for appointment by way of promotion to the IAS cadre. For such purpose, a committee was constituted in terms of Rule 3. That committee shall ordinarily meet every year and prepare a list of such members of the State Civil Service to be suitable for promotion to the Service. The number of members of the State Civil Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned; and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held. The posts available for consideration are in terms of Rule 9 of the Recruitment Rules. As we are concerned with sub-rule (3) of Rule 5, we may refer to the same. It terms of sub-rule (3) of Rule 5, the committee shall not consider the cases of the members of the State Civil Services who have attained the age of 54 years on the first day of January of the year in which it meets. 11. As per the said Rule, the petitioner's case his name was considered for the year 2005. However, the controversy is whether the petitioner had been placed in the Select List for entitlement of the benefit of the proviso is a further question to be considered by this Court. For the said purpose, we may also refer to certain other provisions of the said Regulations. A procedure is contemplated for the committee before placing a person in the Select List in terms of sub-rule (4) of Rule 5 the Committee shall classify the eligible officers as "Outstanding" "Very Good" "Good" or "Unfit" as the case may be, on an over all relative assessment of their service records. In terms of sub-rule (5) of Rule 5, a list shall be prepared by including required number of names, first from amongst the officers finally classified as "outstanding" then from amongst those similarly classified as "Very Good" and thereafter from amongst those similarly classified as "Good" and the order of names inter se within each https://hcservices.ecourts.gov.in/hcservices/ category shall be in the order of their seniority in the State Civil Service. In terms of Rule 7, the list is forwarded to the Commission for consideration. The Commission in terms of Rule 7, shall consider the list prepared by the committee along with the documents received from the State Government as well as the observation of the Central Government. In terms of sub-rule (2) of Rule 7, the commission is entitled to make necessary changes in the list and thereafter inform the State and Central Government of the changes proposed and after taking into account the comments, if any, of the State Government and the Central Government may approve the list finally with such modifications. The approved list of the Commission shall form the Select list of the members of the State Civil Service. Thereafter, in terms of Rule 9 the appointment by way of promotion are made to the IAS cadre by the Central Government. 12. The grievance of the petitioner should be considered in the light of the above Rules. First of all it is the grievance of the petitioner that his name has been included in the Select List and he was placed in Serial No.12. But has not been considered for appointment by way of promotion in the year 2005 as only 8 vacancies were filled up and thereafter his name was placed in the rank of 4 for the year 2006. Therefore, in view of the explanation to Rule 5 (3) the name of the petitioner should have been included in the Select List prepared for the subsequent years. This stand of the petitioner is stoutly disputed by the Union Public Service Commission by producing the Minutes of the Selection Committee, apart from the records. In paragraph 9 of the order of the Tribunal, it has been observed that the counsel appearing for the Union Public Service Commission had produced the Minutes of the Selection Committee meeting dated 12.1.2006 and informed that the petitioner was not placed in the Select List in that year. This factor was considered by the Tribunal in paragraph 13 of its order, wherein the Tribunal had observed that it has perused the Selection Committee Minutes and the records produced by the learned counsel for the third Respondent Union Public Service Commission. 13. We are referring to the above only to consider the submissions of Mr.Ajayakumar, learned counsel appearing for the petitioner that the third respondent should be directed to produce the records to find out as to whether the petitioner's name was placed in the Select List for the year 2005 or not. In fact, the very same stand has been taken by the third Respondent in the counter affidavit filed in the writ petition in paragraph 4.3, which is extracted as under:- "On an overall assessment of his service records, the petitioner was assessed by the Selection Committee as 'Very Good'. On the basis of this Assessment, he could not be included in the Select https://hcservices.ecourts.gov.in/hcservices/ List of 2005 due to statutory limit on the size of the Select List which was 8 as per the vacancies determined by the Central Government and the officers senior to him with 'Very Good' gradings could only be included in the Select List. For the Select Lists of 2006 and 2007, the name of the petitioner was not included in the eligibility lists furnished by the Ministry of Home Affairs as he had crossed the age of 54 years on the respective crucial dates i.e. 1st January of the year of Select List." 14. In view of the serious procedure which is to be followed by the Selection Committee, it is to be noted that though the petitioner's name was also considered for the year 2005, the Select List is only on the basis of the corresponding vacancies as could be seen from the sub-rule (4) of Rule 5 and in the counter affidavit it is specifically stated that there were outstanding senior officers who had obtained "Very Good" status for placing their names in the Select List for the year 2005. Therefore, the name of the petitioner was not considered for the Select List of the year 2005 though the petitioner had also obtained "Very Good" status. This procedure is in conformity with sub-rule (5) of Rule (5) where the committee is mandated to prepare the list only in the order of the seniority in the event of the seniors have been classified in the same standard. That is why the name of the petitioner was not included in the Select List of the year 2005. Further the list which is prepared by the Committee shall be placed before the Union Public Service Commission together with the documents received from the State Government as well as the Central Government, for its consideration in terms of sub-rules (1) and (2) of Rule 7. Only after consideration of those documents the final Select List is prepared by the UPSC which is forwarded to the Government for consideration of appointment by way of promotion. In these circumstances, the petitioner's name was not in the Select List as the same has not been forwarded to the UPSC and thereafter to the Government for consideration under Rule 9 for appointment in the Service. 15. A combined reading of the above said Rules it appears to us that the names of the persons are included in the Select List only to the corresponding post available and not more than that. In that view of the matter, the grievance of the petitioner that his name has been included in the Select List for the year 2005 and therefore in view of the proviso to Rule 5(3) the petitioner should have been considered for the inclusion of the name in the Select List for the subsequent years, cannot be accepted as such, the proviso to Rule 5 (3) would be applicable one such of those persons who are actually included in the Select List. But for the various reasons they could not have been given promotion if they automatically not included in https://hcservices.ecourts.gov.in/hcservices/ the next year Select List and not otherwise. 16. In view of the above, the contention of the petitioner that the benefit of the proviso to Rule 5(3) is available to the petitioner cannot be accepted as the petitioner has not pressed the challenge to the Rule 5(3) and apparently now the petitioner seeks the benefit of the proviso to the Rule 5(3). There are no other arguments advanced and accordingly, the only challenge based on the proviso to Rule 5(3) is rejected. The writ petition fails and is dismissed accordingly. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar gr. To 1. The Secretary to Government of India, Ministry of Home Affairs, New Delhi. 2. The Secretary to Government for Department of Personnel and training, New Delhi. 3. The Secretary, Union Public Service Commission, New Delhi. 4. The Chief Secretary to Government, Government of Pondicherry, Puducherry. 5. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai-104. +One CC to M/s. K.Sridhar Advocates Sr.15436 +One CC to Senior Government Pleader Senior Public Prosecutor for Puducherry Sr.15292 W.P.No.34087 of 2007 KGK (CO) https://hcservices.ecourts.gov.in/hcservices/