THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.27069 of 2007 Dated : 30.01.2008 Between : N. Dasaratharami Reddy … Petitioner/s And Union of India, rep.by the Secretary to Government, Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training and 4 others. …Respondent/s THE HON’BLE SRI JUSTICE D.S.R. VARMA AND THE HON’BLE SRI JUSTICE K.C. BHANU WRIT PETITION No.27069 of 2007 ORAL ORDER: (per the Hon’ble Sri Justice D.S.R.Varma) Heard learned counsel for the petitioner as well as the learned Assistant Solicitor General, appearing for respondent Nos.1 and 2, and the learned Government Pleader for Services-II, appearing for respondent Nos.3 to 5. 2. This Writ of Certiorari is filed seeking to quash the order, dated 14.12.2007, in O.A.No.772 of 2007, passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for brevity ‘the Tribunal’), dismissing the O.A., filed seeking to quash Memo No.12117/SW/Ser.I/1/2000-5, dated 16-02-2001 and also direct the respondents to consider the case of the petitioner for being appointed by selection to the Indian Administrative Service (for brevity “IAS”) with effect from the date on which his juniors were considered. 3. The case of the petitioner has a little long history, which, in brief, is as follows:- The petitioner was appointed as District Social Welfare Officer and got promoted from time to time, and presently working as Additional Director in Social Welfare Department. He became eligible for conferment of IAS, as provided under Regulation 5 of the Indian Administrative Service (Appointment by Selection) Regulations, 1997 (for brevity ‘the Regulations’), about eight years ago. Since his case was not sponsored by the Department for the preliminary selection process by the Selection Committee constituted under the Regulations, he filed original application O.A.No.943 of 2000 before the Tribunal and the said O.A., was disposed of by the Tribunal, by order, dated 13-07-2000, advising the petitioner to file a representation to the appropriate authority within a period of one month from the date of the said order and on receipt of such representation, the said authority was directed to dispose of the said representation in accordance with law. 4. Aggrieved by the same, the petitioner filed W.P.No.13763 of 2000 before this Court and the same was dismissed, at the stage of admission, by order, dated 28-07-2000, thereby confirming the order of the Tribunal while directing the petitioner to submit a representation. Pursuant to the said direction of this Court, the petitioner submitted a representation on 01-08-2000 for consideration of his case for the interview to be conducted on 17-10-2000. In the meanwhile, the petitioner filed another application in O.A.No.1633 of 2000 seeking a declaration that the action of the respondents in not conferring IAS to him though he was eligible for consideration under the Regulations. The Tribunal, by order, dated 16-11-2000, disposed of the said O.A., observing that it was not known whether the applicant (petitioner herein) has been superseded or any of his junior has been conferred IAS. 5. At this juncture, it is pertinent to mention here that, it appears, a specific contention was raised by the petitioner before the Tribunal stating that his juniors were considered for selection for conferment of IAS under the Regulations. In view of the said specific averment made by the petitioner, without going into the merits, the Tribunal disposed of the said O.A., directing the respondents therein to dispose of the representation within a period of two months from the date of receipt of a copy of the said order. Consequently, through Memo No.12117/SW/Ser.I/1/2000-5, dated 16-02-2001, issued by respondent No.5, the petitioner was informed that no officer of Social Welfare Department had been conferred to IAS till that date and, therefore, the question of sponsoring the name of the petitioner to the Selection Committee for IAS does not arise. 6. In the meanwhile, challenging the orders, dated 16-11-2000, passed by the Tribunal in O.A.No.1633 of 2000, the petitioner filed W.P.No.24322 of 2000, seeking a direction to the respondents to sponsor his name to the Selection Committee for IAS. 7. A counter affidavit has been filed by the respondents in W.P.No.24322 of 2000 stating that the names of two other incumbents in the cadre of Additional Director/Joint Director, respectively, in Social Welfare Department, were proposed for appointment to the cadre of IAS and the petitioner was junior to them, therefore, the case of the petitioner was not recommended for appointment to IAS. 8. Therefore, when it was brought to the notice of this Court about the factum of disposal of the representation of the petitioner, pursuant to the directions of the Tribunal in O.A.No.943 of 2000, dated 13-07-2000, as well as this Court in W.P.No.13763 of 2000, dated 28-07-2000, a Division Bench of this Court, by order, dated 12-11-2007, disposed of W.P.No.24322 of 2000, observing that nothing remains for adjudication, however, granting liberty to the petitioner to avail the remedies that are open to him under law. 9. Taking cue from the observations of this Court, made in W.P.No.24322 of 2000, dated 12-11-2007, the petitioner filed O.A.No.772 of 2007, challenging the Memo, dated 16-02-2001, issued by respondent No.5. The Tribunal, by order, dated 14-12-2007, dismissed the said O.A. Aggrieved by the same, the petitioner filed the present writ petition. 10. It is to be remembered that, admittedly, W.P.No.24322 of 2000 was filed, while the representation, dated 01-08-2000, of the petitioner, made pursuant to the directions of the Tribunal as well as the High Court, was pending for consideration, and even without waiting for the outcome of the said representation. 11. At the outset, this Court puts on record its displeasure about the conduct of the petitioner in filing W.P.No.24322 of 2000 challenging the order, dated 16-11-2000, passed in O.A.No.1633 of 2000, while his representation was pending for consideration. In other words, having conceded to the order of the Tribunal as well as the directions of this Court by way of making a representation to the Government, the petitioner filed W.P.No.24322 of 2000. 12. Tribunal disposed of O.A.No.1633 of 2000, directing the respondents therein to dispose of the representation within a period of two months from the date of receipt of a copy of the said order. Consequently, respondent No.5 issued Memo No.12117/SW/Ser.I/1/2000-5, dated 16-02-2001, informing the petitioner that no officer of Social Welfare Department had been conferred to IAS till that date and, therefore, the question of sponsoring the name of the petitioner to the Selection Committee for IAS does not arise. 13. For the sake of convenience and ready reference, the relevant portion of Memo No.12117/SW/Ser.I/1/2000-5, dated 16- 02-2001, is extracted hereunder: “After careful examination of the representation reference cited, Sri N.Dasaradharami Reddy, JD (SR), O/o.Commissioner of Social Welfare, Andhra Pradesh, Hyderabad, is informed that no officer of Social Welfare Department had been conferred to IAS till to date, either senior or junior to him. Hence, sponsoring his name to Selection Committee for IAS does not arise.” 14. From the above, it is obvious that as on the date of passing of the above said Memo, dated 16-02-2001, no officer of the Social Welfare Department, either senior or junior to the petitioner, had been conferred to IAS. Obviously, since it was brought to the notice of this Court that there were two other senior officers to the petitioner, the question of consideration, if any, would be in favour of those two senior officers only. Of course, nothing is clearly spelt out in the Memo, dated 16-02-2001. But, this can be gathered from different proceedings issued by the Government from time to time, owing to the filing of O.As., by the petitioner before the Tribunal. 15. It is to be seen that basically there is no indefeasible right conferred upon an incumbent, like the petitioner, to have the right for conferment of IAS. Much depends upon various contingencies, as postulated under Regulation 5 of the Regulations. 16. Regulation 5 of the Regulations envisages that the suitability of a person for appointment to the service shall be determined by scrutiny of service records and personal interview. 17. Therefore, as per Regulation 5 of the Regulations, obviously, it is not mere seniority or length of service that is to be taken into account as the criteria for eligibility to confer IAS. On the contrary, the suitability of the person shall be assessed basing on his service record. In other words, it is only subject to satisfaction of the Government to nominate or recommend an incumbent for conferment of IAS, basing on the service record of a particular incumbent. 18. It is to be noticed that the litigation initiated by the petitioner right from 2000 to till date can be bifurcated into two parts. The former ends with the order of the Tribunal passed in O.A.No.943 of 2000, dated 13-07-2000, as confirmed by this Court in W.P.No.13763 of 2000, dated 28-07-2000, and also after the disposal of another application in O.A.No.1633 of 2000, dated 16-11-2000. Subsequently, during the pendency of W.P.No.24322 of 2000, the competent authority had informed the petitioner that the names of other two seniors, who are more meritorious than the petitioner, were not considered and, therefore, the question of recommending the name of the petitioner to the Selection Committee for IAS does not arise. 19. As already pointed out, the petitioner made representation to the Government, as advised by the Tribunal in O.A.No.943 of 2000 and also as directed by this Court in W.P.No.13763 of 2000. During the pendency of the said representation before the Government, the petitioner filed another application in O.A.No.1633 of 2000 before the Tribunal. Even without waiting for the outcome of the said representation, he filed W.P.No.24322 of 2000 before this Court. 20. Furthermore, O.A.No.772 of 2007 came to be filed only from the incidental observation made by a Division Bench of this Court in W.P.No.24322 of 2000, dated 12-11-2007, wherein it was observed that it is open for the petitioner to avail the remedies that are available under law. 21. The above observations, obviously, were made in the light of the Memo, dated 16-02-2001, issued by respondent No.5, informing the petitioner that no officer of Social Welfare Department, either senior or junior to him, had been conferred to IAS, therefore, the case of the petitioner cannot be considered for nomination to the Selection Committee for IAS. 22. It is to be further seen that it has already been pointed out that there is no indefeasible right for selection or even for nomination for IAS, in the facts and circumstances of the present case, conferred upon any incumbent. It is only subject to the satisfaction of the competent authority and basing on the service record of an incumbent. 23. Now, coming to the latter part of the litigation i.e., with effect from 2001 onwards, it is on record and not in dispute that the petitioner was involved in certain irregularities and a Memorandum of Charge has been issued, vide G.O.Rt.No.631, dated 22-12-2001. Notwithstanding the gravity of the charges levelled against the petitioner, we are of the considered view that the petitioner has been under the cloud of the said Memorandum of Charge and even as on today he is not out of that cloud. 24. In view of the said fact, it is rather undecideable as to how the case of the petitioner could be considered since 2001. 25. We reiterate that the petitioner has no right to challenge the proceedings issued prior to January, 2002, for the simple reason that having conceded to the directions and advice given by the Tribunal as well as this Court in two rounds of litigation by way of making representations to the Government, which were rejected. Taking cue from the incidental observations made by the Tribunal or this Court, the petitioner has been resorting to elongate the litigation. 26. The litigation, actually, has its origin in 2000 and has virtually been resolved even by the end of 2001. Now, again taking cue from the observation made by this Court in W.P.No.24322 of 2000, dated 12-11-2007, to the effect that it is open for the petitioner to avail the remedies that are available under law, O.A.No.772 of 2007 came to be filed and aggrieved by the order of dismissal of the said O.A., he filed the present writ petition. 27. The conduct of the petitioner, all through, cannot be appreciated and we are of the firm opinion that the case of the petitioner cannot be considered for two reasons – firstly, there is no indefeasible right accrued to him under any rule or regulation for conferment of IAS; and secondly, he is under the cloud of the Memorandum of Charge, for the irregularities allegedly committed him. 28. For the foregoing, we do not find any valid reason to interfere with the impugned order, passed by the Tribunal, and the writ petition is liable to be dismissed. 29. In the result, the writ petition is dismissed, at the stage of admission. However, there shall be no order as to costs. _______________________ JUSTICE D.S.R.VARMA _______________________ JUSTICE K.C.BHANU 30-01-2008 Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C. BHANU WRIT PETITION No.27069 of 2007 30-01-2008 (Msr)