IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 WP(C).No. 15987 of 2010(S) --------------------------------------- OA.184/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH .................... PETITIONER(S): ------------------------- DR.P.N. PREMACHANDRAN, MANAGING DIRECTOR, SMALL FARMERS AGREE BUSINESS CONSORTIUM (SFAC), GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-1. RESIDING AT 'PRANAVAM', TC 15/285(2), A N R A 38, ALTHARA NAGAR, VELLAYAMBALAM, TRIVANDRUM-10. BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE, ADV. SRI.MILLU DANDAPANI. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. UNION PUBLIC SERVICE COMMISSION, DHOLPUR HOUSE, SHAJAHAN ROAD, NEW DELHI. 3. THE SECRETARY, UNION PUBLIC SERVICE COMMISSION, DHOLPUR HOUSE, SHAJAHAN ROAD, NEW DELHI. 4. UNION OF INDIA, REPRESENTED BY SECRETARY MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING, GOVERNMENT OF INDIA, NEW DELHI. WP(C).No. 15987 of 2010(S) 5. SRI.M. GIREESH KUMAR, ADDITIONAL SECRETARY, GOVERNMENT OF KERALA, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 6. SRI.V. RATHEESAN, DEPUTY DEVELOPMENT COMMISSIONER, NOW WORKING AS PROJECT DIRECTOR, DISTRICT RURAL DEVELOPMENT AGENCY (DRDA), PALAKKAD. 7. SMT.K.K. RAMANI, ADDITIONAL SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADDL.R8: THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, SHASTHA TEMPLE ROAD, KALOOR, KOCHI-682 017. (ADDL. R8 IMPLEADED AND AMENDED AS PER ORDER DATED 25/06/2010 IN I.A.8491/2010). R1 BY GOVT. PLEADER MR.N. MANOJ KUMAR. R2 & R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC UPSC. R4 BY ADV. SRI.T.P.M.IBRAHIM KHAN, ASST.S.G OF INDIA. R5 BY SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE, ADV. SMT.K.RADHAMANI AMMA. R6 BY SRI.KRB.KAIMAL, SENIOR ADVOCATE, ADV. SRI.B.UNNIKRISHNA KAIMAL. R7 BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE, ADV. SMT.RAMEENA.P.K., SRI.SUNIL V.MOHAMMED, SRI.T.U.ZIYAD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2010, ALONG WITH WPC NO. 16966 OF 2010, THE COURT ON 17/08/2010 DELIVERED THE FOLLOWING: WP(C).No. 15987 of 2010(S) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE O.A. NO.184/2010 ALONG WITH ANNEXURES FILED BY THE PETITIONER BEFORE THE C.A.T. EXT.P2: COPY OF THE ORDER DATED 09/03/2010 IN O.A.NO.184/2010 OF THE C.A.T. EXT.P3: COPY OF THE REPLY STATEMENT IN O.A. NO.184/2010 FILED BY THE STATEN ALONG WITH ANNEXURES. EXT.P4: COPY OF THE REJOINDER TO EXHIBIT P3 REPLY STATEMENT FILED BY THE PETITIONER ALONG WITH ANNEXURES. EXT.P5: COPY OF THE REPLY STATEMENT IN O.A. NO.184/2010 FILED BY THE U.P.S.C. ALONG WITH ANNEXURES. EXT.P6: COPY OF THE REJOINDER TO EXHIBIT P5 REPLY STATEMENT FILED BY THE PETITIONER ALONG WITH ANNEXURES. EXT.P7: COPY OF THE REPLY STATEMENT IN O.A. NO.184/2010 FILED BY THE 5TH RESPONDENT ALONG WITH ANNEXURES. EXT.P8: COPY OF THE REJOINDER TO EXHIBIT P7 REPLY STATEMENT FILED BY THE PETITIONER ALONG WITH ANNEXURES. EXT.P9: COPY OF THE REPLY STATEMENT IN O.A. NO.184/2010 FILED BY THE 6TH RESPONDENT ALONG WITH ANNEXURES. EXT.P10: COPY OF THE REJOINDER TO EXHIBIT P9 REPLY STATEMENT FILED BY THE PETITIONER ALONG WITH ANNEXURES. EXT.P11: COPY OF THE ADDITIONAL REJOINDER FILED BY THE PETITIONER TO THE REPLY STATEMENT FILED BY THE 6TH RESPONDENT ALONG WITH ANNEXURES. EXT.P12: COPY OF THE REPLY STATEMENT IN O.A. NO.184/2010 FILED BY THE 7TH RESPONDENT ALONG WITH ANNEXURES. EXT.P13: COPY OF THE ORDER DATED 17/05/2010 IN O.A. NO.184/2010 OF THE CAT. EXT.P14: COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE SECRETARY AND APPELLATE AUTHORITY, GAD (SPL.A&C) DEPARTMENT. EXT.P15: COPY OF THE REPLY DATED 30/03/2010 GIVEN BY THE APPELLATE AUTHORITY VIDE NO.14945/SPL.A1/2010/GAD. WP(C).No. 15987 of 2010(S) RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE G.O.(RT)NO.1658/09/AD TVM. DATED 26/09/2009. EXT.R6(a): COPY OF THE REPORT DATED 02/02/2005 OF THE STATE PERFORMANCE AUDIT OFFICER, LOCAL SELF GOVT. DEPT., GOVT. SECRETARIAT, THIRUVANANTHAPURAM. EXT.R6(b): COPY OF THE REPORT DATED 01/01/2006 OF THE DISTRICT COLLECTOR, KANNUR. EXT.R6(c): COPY OF THE REPORT DATED 01/08/2006 OF THE DISTRICT COLLECTOR, KANNUR. EXT.R6(d): COPY OF THE REPORT DATED 01/01/2007 OF THE DISTRICT COLLECTOR, KANNUR. EXT.R6(e): COPY OF THE G.O.(RT)NO.3063/2007/DMD DATED 21/07/2007. EXT.R6(f): COPY OF THE REPORT OF THE COMMISSIONER, GURUVAYUR DEVASWOM (SMT.SARADA MURALEEDHARAN, IAS). EXT.R6(g): COPY OF THE REPORT OF THE COMMISSIONER, GURUVAYUR DEVASWOM (SMT.SARADA MURALEEDHARAN, IAS). //TRUE COPY// P.S. TO JUDGE rs. K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. -------------------------------------------------- W.P(C). NOS.15987 & 16966 OF 2010 S --------------------------------------------------- Dated this the 17th August, 2010 JUDGMENT K.M. Joseph, J. Common questions having arisen in these Writ Petitions, we are disposing of the same by this common Judgment. 2. The controversy relates to the selection to the Indian Administrative Service in relation to two vacancies arising in respect of non civil service Officers. WP(C).NO.15987/2010 (FACTS): Petitioner was the applicant in OA.No.184/2010 of the Central Administrative Tribunal, Ernakulam Bench. Regulation 4 of the Indian Administrative Service (Appointment by Selection) Regulations, 1997 (hereinafter called the Regulations) reads as follows: WPC.NOS.15987 & 16966/10 2 “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 Government shall not consider the case of a person who, having been included in an earlier Select List, has not been appointed by the Central Government in accordance with the provisions of regulation 9 of these Regulations.” WPC.NOS.15987 & 16966/10 3 It is in terms of this Regulation that the Government of Kerala sent a proposal for consideration of the Committee which is the Committee constituted under the Regulations. This was done vide Annexure R5(6) dated 23.11.2009. Among the recomendees are respondents 5, 6 and 7. Petitioner was not recommended by the State. Petitioner was working as the Additional Director of Soil Survey. Apparently, in the meantime, the petitioner was placed under suspension by order dated 26.9.2009. Petitioner preferred an Appeal against the same. He filed W.P.(C).No.30752/2009. In the same, this Court directed the Appellate Authority to take a decision. The Appellate Authority decided to revoke the suspension of the petitioner by order dated 26.11.2009 and to reinstate him into service pending disciplinary action and without prejudice to the merits of the case and to post him on deputation basis as Managing Director of the Small Farmers Agri-Business Consortium. Petitioner thereupon filed W.P.(C).No.33375/09. Therein, an interim order dated 30.11.2009 came to be passed, WPC.NOS.15987 & 16966/10 4 directing the State of Kerala to include the name of the petitioner at the appropriate place in the list of eligible candidates for selection to IAS (2009 - 2010) and to forward the list to the Government of India. It is made clear in the interim order that it was to be subject to the further orders in the Writ Petition. We notice that it is, inter alia, stated by the learned Single Judge that in view of the order dated 26.11.2009 by which the petitioner's suspension was revoked and so far no memo of charges had been issued to him, the reason for his exclusion cannot survive any more, prima facie. Thereupon, the Selection committee proceeded to consider the claims of the eleven candidates. The deliberations of the Selection Committee culminated in the respondents 5 to 7 being ranked above the petitioner, that is to say, the fifth respondent was placed in the first position, the sixth respondent was placed in the second position, the seventh respondent was placed in the third position and the petitioner was placed in the fourth position. It is apparently being aggrieved by the same that the petitioner filed WPC.NOS.15987 & 16966/10 5 OA.No.184 of 2010 seeking the following reliefs: “i. Call for the records relating to the case and declare that the inclusion of the name of respondents 5 to 7 in the zone of consideration and in the select list is null and void; ii. Issue an order setting aside the select list prepared by the Selection Committee so far as respondents 5 to 7 as 1 to 3 in the selection to the Indian Administrative Service; iii. Issue a direction, directing the respondents 1 to 4 to include the name of the applicant for selection to the Indian Administrative Service as the first person in the select list and finalise the selection on the basis of the same; iv. Issue a direction, directing the respondents 1 to 4 to delete the 10 marks given to respondents 5 to 7 as per the stipulations contained under the head 5(ii) and 5(iii) of A4 Guideline issued by Government; v. Issue a direction, directing the first respondent to submit all the files relating to the selection for the kind perusal of this Honourable Tribunal; vi. Issue a direction, directing the respondents 3 and 4 to consider Annexure A25 and A26 representations submitted by the applicant, forthwith, before finalizing the select list.” WPC.NOS.15987 & 16966/10 6 The parties settled their pleadings and the Tribunal has vide the impugned order, dismissed the Application. 3. W.P.(C).NO.16966 OF 2010 (FACTS) The writ petitioner is the seventh respondent in W.P.(C). No.15987/2010. As already noted, she is placed in the third position by the Selection Committee of the UPSC. Petitioner challenges the select list by which the second rank is accorded to the seventh respondent herein. The further prayer is to delete the ten marks given to the seventh respondent for his good service entry. Petitioner filed O.A.No.118 f 2010 wherein the prayers were as follows: “a) Set aside the the select list prepared by the Selection Committee by giving Rank No.2 to the 7th respondent for the selection to the Indian Administrative Service; b) Direct the respondents to delete 10 marks given to the 7th respondent for good service entry given to him regularly for recommending his candidature for inclusion in the zone of consideration for selection to the Indian Administrative Service and declare the inclusion of the 7th respondent in the zone of consideration, null and void; WPC.NOS.15987 & 16966/10 7 c) Direct the respondents to include the name of the applicant in the select list for appointment to the Indian Administrative Service.” The Tribunal has dismissed the Application filed by the petitioner. 4. The Government of Kerala has issued Guidelines (hereinafter called the Guidelines) for assessment of the performance of eligible candidates for inclusion in the zone of consideration for selection to the Indian Administrative Service from non civil service Officers vide Order dated 1.4.2009. The earlier order is dated 24.1.2003. It is not in dispute that this Court in certain Writ Petitions expressed dissatisfaction about the absence of criteria for the Government to make a proper assessment of the eligible candidates. Consequently, by order dated 4.4.2008, a Committee was constituted for drawing up new guidelines which were to be consistent with the Regulations. Since the guidelines are crucial for resolving the lis between the parties, we advert to the same by extracting the same as under: WPC.NOS.15987 & 16966/10 8 “1. Nomination of Officers fulfilling the conditions for selection is to be obtained from concerned Secretaries/Principal Secretaries under whom they are working at present. 2. The performance of the Officers nominated is to be assessed based on their completed Confidential Report for the last 5 years. 3. If Confidential Reports are not complete, a certificate stating reasons for the same is to be furnished by the recommending Officer. 4. In cases where two Officers are of more or less equal performance, the Confidential Reports for the past periods may also be examined. 5. A total of 100 marks is fixed for the various performances and the marks are distributed covering the following aspects: (i) Maximum of 70 marks will be set apart for the performance appraisals. Each of the performance appraisals should be examined as to whether the reporting/reviewing Officers have carefully considered the performance of the Officer and whether the number of “A” Grades have been properly substantiated. For the purpose of computation of marks, “A” Grade will be awarded five marks and “B” Grade will be awarded four marks. In the instances where the reporting Officer has not substantiated the reasons for the number “A” Grades, there is no justification to consider such “A” Grade as superior to the WPC.NOS.15987 & 16966/10 9 “B” Grade and hence in such a performance appraisal report, both the “A” and “B” Grades may be given four marks each. This exercise is to be done for each of the performance appraisal reports for the total period under consideration and the average of the marks in respect of performance appraisals of the nominated Officer should be taken for the final reckoning. (ii) Maximum of 10 marks will be awarded for any specific contribution made by the Officer in formulating implementing new initiatives and programmes of the department. For making an assessment on this aspect, one has to rely on the objectivity with which the self assessment has been made by the Officer under consideration read together with the specific additional comments recorded by the reporting/reviewing Officers in their assessment. In the instances where claims made by the nominated Officer in the self appraisal has not been substantiated through the comments of the reporting/reviewing Officer the same need not be considered for the purpose of awarding these marks. (iii) Maximum of 10 marks will be awarded for any good service entry awarded by the Government. For this purpose, only good service entry awarded by the Government through specific Government Order explicitly stating the reasons for the award of good service entry should be considered. Any other commendations given WPC.NOS.15987 & 16966/10 10 by the Heads of Departments for the Officers should not be considered for the purpose of awarding these marks under this category. (iv) Maximum of 10 marks will be awarded for the awards and other special distinctions earned by the nominated Officer at the State Level or at the National Level for excellence in public administration. 6. Punishments, if any awarded in the entire career of the Officer will be counted as disqualification. 7. The moderation envisaged in the Government Order for the maintenance of the Confidential Report is dispensed with in the case of consideration for IAS. 8. The reporting Officers should strictly adhere to the guidelines while evaluating the performance appraisal reports so as to ensure maximum objectivity in the process. 9. Chief Secretary will select suitable Officers based on the above Guidelines for inclusion in the zone of consideration for selection to IAS from among the nominations received from the Secretaries/Principal Secretaries.” It was purporting to follow the said guidelines that the recommendations were made by the State Government which we have already adverted to. Since there were two vacancies and WPC.NOS.15987 & 16966/10 11 the Regulations provide that there should not be more than five times the number of vacancies, the names of ten persons including respondents 5 to 7 in W.P.(C).No.15987/2010 were recommended as already noted. Apart from them, the name of the petitioner in W.P.(C).No.15987/2010 was also sent up. 5. Contentions in W.P.(C).No.15987/2010: Smt. Sumathy Dandapani, learned senior counsel appearing for the petitioner would contend that the fifth respondent secured 79.2 marks out of 100 on an evaluation purported to be done in terms of the guidelines. The sixth respondent is shown entitled to 79 marks. The 7th respondent is shown as entitled to 78.2 marks. We have already referred to Clause 5(ii) of the Guidelines. It is the case of the petitioner that the party respondents are not entitled to get ten marks which is awarded to them under Clause 5(ii). If they were not awarded the ten marks as aforesaid, the resultant position would be that the State Government could not recommend their names and the Selection Committee and the UPSC could not, therefore, have WPC.NOS.15987 & 16966/10 12 legally considered their names. Petitioner has a case that the petitioner was wrongfully denied the benefit of ten marks under Clause 5(ii). It is more over contended that even without securing the ten marks, though the petitioner was entitled to the same, the petitioner still secured the highest marks. Thus, it is her case that if respondents 5 to 7 are excluded, then the petitioner would be at rank No.1. Even if respondents 5 and 6 alone were excluded, even then the petitioner would be at the second position entitling him to be appointed to the Indian Administrative Service, as there are two vacancies. It is her case that the party respondents are not entitled to get the benefit of the ten marks under Clause 5(ii) for the reason that they have not earned the marks provided therein by making any special contribution as provided therein. In this connection, she took us through the following findings of the Tribunal: “39. However, the challenge against the guidelines is that they are not followed strictly. The applicant in OA No.184/10 challenges the non- consideration of the data to substantiate his specific contribution and non-awarding of marks under 5(ii) of the guidelines. The Official WPC.NOS.15987 & 16966/10 13 respondents have not specifically contested the submission of the applicant. It was pointed out during hearing that he was given marks under 5(iii) and 5(iv). But giving marks under 5(iii) and 5(iv) does not justify not giving marks under 5(ii) if he is eligible for the same. If the Chief Secretary decided not to give marks under 5(ii) to the applicant, as he had already secured highest marks of 84.2 then, it is not according to the guidelines and it does not appear fair and just. 40. The contention of the applicants that Shri Ratheesan was wrongly awarded 10 marks for 'good service entry' is admitted as a typographical error. The mark meant for his special contribution was wrongly entered in the column for 'good service entry', which was rectified later. During hearing, it was submitted that the rectification was carried out on getting a complaint. This could be after the selection committee meeting on 31.12.2009. But, no correction is made in column 8 of the document in which the marks are awarded. As per records, 10 marks were awarded to Shri Ratheesan under column 9 for 'good service entry' and not for 'specific contribution'. But the correction of typographical error said to have been made, is a mental exercise only. Taking into account the admitted typographical error, the contention of the applicant is that the respondents 5 to 7 were wrongly awarded 10 marks for 'specific contribution'. Because, they have not made any self assessment regarding their specific contribution and there was no substantiation of their claims by reporting/reviewing Officers, thereby the procedure stipulated in 5(ii) of the guidelines was not followed. This point also has WPC.NOS.15987 & 16966/10 14 not been directly answered by the 1st respondent. It was claimed by the 1st respondent that the 1st respondent had the prerogative of interpreting and awarding of marks to the various items as specified in the guidelines. This stand of the 1st respondent is not supported by the guidelines which require her to select suitable Officers based on the guidelines. The prerogative of the State Government to propose suitable Officers for inclusion in the zone of consideration is to be exercised in accordance with the guidelines. When guidelines are issued by the State Government, the prerogative of the State Government is subject to the guidelines. If the State Government had the intention of exercising its prerogative unfettered by the guidelines, it should not have issued the guidelines in the first place. 41. It is stated by the 1st respondent that the respondents No.5 and 7 are awarded 10 marks for specific contribution on the basis of the letters of appreciation by the Ministers under whom they are working. The letter of appreciation by the Finance Minister is dated 17.05.2009 and the one by the Minister for Home, Vigilance & Tourism is dated 23.03.2009. It would have been appropriate if the cut of date of 01.01.2009 was applied to the documents for the purpose of awarding marks. Indulgent superiors may be willing to oblige Officers chasing good service entries and letters of appreciation to score marks for shortlisting. Further, awarding of 10 marks for the letters of appreciation from the concerned Ministers as above is not in accordance with para 5(ii) of the guidelines as there was no self assessment substantiated by the reporting/reviewing Officers. WPC.NOS.15987 & 16966/10 15 42. Awarding of 10 marks for 'specific contribution' to respondent No.6 is based on 5 documents of which 2 are good service entries. 5 (iii) of the guidelines is specifically meant for good service entries. The 'good service entries' to the credit of respondent No.6 do not qualify for awarding marks as they are not awarded through specific Government Order explicitly stating the reasons for awarding ' good service entry'. It does not seem proper to consider those good service entries which are unqualified under 5(iii), towards 'specific contribution' under 5(ii) of the guidelines. 44. It is also not open to the respondent to contend that the applicant ought to have moved the appropriate forum prior to the interview conducted by the Selection Committee. If he had any dispute as to the inclusion of the respondents No.5 to 7 in the zone of consideration, after denying the applicant necessary information under RTI Act thus effectively preventing him from moving the appropriate forum in time. In the facts and circumstances of the case before us, the law of estoppel does not come in the way of the applicant. 45. In the light of the above, we conclude that there is some merit in the contentions that the data for specific contribution submitted by the applicant in OA 184/10 was not considered for awarding marks and that guidelines were not strictly followed in awarding marks for specific contribution to R5 to R7. However, no malafide is established because the applicant in OA 184/10 has been given marks under good service entry and awards. As such without awarding any marks under specific contribution, the applicant is having WPC.NOS.15987 & 16966/10 16 the top score of 84.2 marks. The applicant was not included in the short list for zone of consideration only because he was under suspension. The applicant in OA 118/10 is given marks under specific contribution. The view of the applicants that if the marks are awarded to them, it is fair but if the marks are awarded to the party respondents, it is malafide, is not sustainable. In our view, there is lack of transparency and want of due diligence in following the guidelines. The inherent defects of 5 (ii), (iii) & (iv) of the guidelines in not having a time frame, cut off date, repeated assessment of some attributes etc. get magnified when the guidelines are implemented with a cavalier attitude. Guidelines for short listing should not be more complex and elaborate than the regulations for selection. No servant is greater than his master. In the instant case, the guidelines are more complex and elaborate than the regulations. They suffer from lack of conceptual clarity and practical time frame leaving the field wide open for the subjectivity of a single person imbued with a sense of prerogative. Persons in authority should conduct themselves in such a way that their actions are above suspicion and beyond reproach. The records do not bear out adherence to the procedures in the guidelines in awarding marks under specific contribution and good service entry. There is no authenticated statement