HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION Nos.30691, 30699 and 32290 of 2010 Between: The State of A.P., rep. by Chief Secretary to Govt. and others …PETITIONER (S) vs. Irinki Srinagesh and others …RESPONDENT (S) HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION Nos.30691, 30699 and 32290 of 2010 COMMON ORDER: (Per HON'BLE MR JUSTICE GHULAM MOHAMMED) The point involved in all these three writ petitions is same, therefore they are being disposed of by this common order. The controversy relates to appointments to three posts of Indian Administrative Service (IAS) officers from the Non-State Civil Service officers cadre. 2. The applicant in O.A.No.1154 of 2010 is the first respondent in W.P.Nos.30691 and 30699 of 2010 and he is an Assistant Commissioner of Commercial Taxes. Questioning the order dated 25.10.2010 passed by the Commissioner of Commercial Taxes (Commissioner), rejecting his representation dated 03.07.2010 to forward his name for selection to IAS posts meant for Non-State Civil Service officers, he filed O.A.No.1154 of 2010 in the Central Administrative Tribunal (Tribunal). The said applicant earlier filed O.A.No.1095 of 2010 questioning the refusal of the Commissioner to send his name for consideration for IAS posts and the Tribunal by its order dated 22.10.2010 passed in the said O.A. directed the Commissioner to dispose of his representation dated 03.07.2010. Pursuant to that order, the Commissioner passed the present order on 25.10.2010 rejecting that representation and the applicant filed the present O.A.No.1154 of 2010 questioning that order. In the said order dated 25.10.2010 the Commissioner gave elaborate reasons and we will deal with them at a little later. 3. The said applicant in the above O.A. filed M.A.No.696 of 2010 for an interim direction to the Commissioner for forwarding his name to the Government for consideration for selection to the IAS posts. After hearing the learned counsel on either side, the Tribunal by its interim order dated 01.12.2010 granted an interim direction to the Commissioner to forward the name of the applicant to the Government and further directing the Government to finalize the selection of the officers only after the receipt of the applicant’s application. Questioning that interim order, the Government filed the aforesaid two writ petitions i.e. W.P.Nos.30691 and 30699 of 2010. Respondents 1 to 3 in O.A.No.1154 of 2010 are petitioners in both the aforesaid writ petitions, the only difference being that the Commissioner is the first petitioner in W.P.No.30691 of 2010 whereas he is the 3rd petitioner in W.P.No.30699 of 2010. At the time of hearing the learned Additional Advocate General admitted that the two writ petitions are unnecessary. Thus, the decision in W.P.No.30699 of 2010 is taken up for disposal and that disposes W.P.No.30691 of 2010 also. 4. In so far as W.P.No.32290 of 2010 is concerned, one Smt B. Amrutha Laxmi filed it and she is a Deputy Commissioner of Commercial Taxes. Her grievance is also similar to that of the applicant in O.A.No.1154 of 2010. She filed O.A.No.1291 of 2010 to declare the action of the 5th respondent therein i.e. Commissioner in not forwarding her name to the 3rd respondent therein i.e. the Government of Andhra Pradesh for being considered for the post of IAS officers meant for Non-State Civil Service officers quota. In her case, the Tribunal took up her O.A. itself and declined to grant any relief by its order dated 20.12.2010 by accepting the case of the respondents therein that the Commissioner already short listed the names of the proposed officers to be forwarded on 23.11.2010 and the said list was also forwarded. Both the above orders were passed by the different benches of the Tribunal. Questioning the said order dated 20.12.2010 the said Deputy Commissioner of Commercial Taxes filed W.P.No.32290 of 2010. 5. Before mentioning the respective contentions of the parties, the following rule position should be noted. The Indian Administrative Service (Recruitment) Rules 1954 framed under Section 3(1) of the All India Services Act, 1951 (LXI of 1951) lay down the procedure for recruitment to Indian Administrative Service. The method of recruitment to the I.A.S. post is laid down in Rule 4 of the said Rules. That recruitment can be (a) by a Competitive examination i.e. direct recruitment (b) by promotion of a substantive member of a state civil service and (c) by selection, in special cases from among persons who hold in a substantive capacity Gazetted post in connection with the affairs of a state and who are not members of a State Civil Service. We are now concerned only with the 3rd category mentioned above. 6. In exercise of the power conferred by Section 3 of the All India Services Act, 1951 read with Rule 8(2) of the above mentioned Indian Administrative Service Recruitment Rules, 1954, the Government of India framed the Indian Administrative Service (appointment by selection) Regulations 1997, (hereafterwards referred to as “the Regulations”). These Regulations are now relevant to decide the controversy in these writ petitions and they govern the selection to the 3rd category mentioned in the Indian Administrative Service Rules, 1954. 7. Regulation 4 of the Regulations which prescribes as to how the proposal should be sent by the State Government to the Committee which ultimately selects the candidates for I.A.S. posts meant for non-state Civil Service Officers reads as follows : “ 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 person proposed for consideration of the Committee shall not exceed five times the number of vacancies prescribed 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 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.” 8. The above regulation shows the criteria which should be applied by the State Government for sending the candidates from the Non-State Civil Service cadre of the officers for IAS posts. The requirements are that the officer should of outstanding merit and ability, hold a Gazetted post in a substantive capacity and must have 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. Further, he should have not attained the age of 54 years by that date. These requirements or criteria are important. Both the officers relied upon this criteria and their contention is that since they answered this criteria, the Commissioner ought to have sent their names. It is relevant to note that pursuant to the representations from some of the aspiring candidates, in the year 2007, the State Government issued G.O.Ms.No.634 General Administration (Special. A) Department dated 24-8-2007, declaring the posts in the non State Civil Service cadre which are equivalent to the posts of Deputy Collector for the purpose of Regulation 4. The said G.O.Ms.No.634 which has been issued in supersession of all the previous G.Os. on the subject reads as follows : “:Notification : In supersession of the orders issued in G.O.Ms.No.259, General Administration(Special. A) Department, dated 8-6- 2006, G.O.Ms.No.807, General Administration (Special. A) Department dated 23-12-2006 read with G.O.Ms.No.63 General Administration (Special. A) Department, dated 8.3.2007 and in exercise of the powers conferred under sub-regulation (iii) of Regulation 4(1) of the Indian Administrative Service (Appointment by Selection) Regulation, 1997, the Government hereby declare that all the posts which carry the scale of pay of Rs.10,845-22955 and above ( revised scales of 2005) in all the Departments under the Government of Andhra Pradesh, barring three services viz (1) State Police Service (2) State Forest Service and (3) Judicial Service, are equivalent to the post of Deputy Collector in the State Civil Service, for the limited purpose specified in Regulation ibid. Officers who have completed 8 years of continuous service in the said scale as on 1st January of the year for which Selection is made and are substantive in the above scale of pay as stipulated in the IAS (Appointment by Selection ) Regulation, 1997 are eligible for consideration.” 9. From the contents of the above G.O.634, it is clear that the State Government, pursuant to the representations received in that regard, has taken into consideration only the pay scales and declared that all the posts in the Non-State Civil Service Cadre which carry the scale of pay of Rs.10845-22955 and above (revised scales of 2005) are equivalent to the posts of Deputy Collector in the State Civil Service for the limited purpose specified in Regulation 4(iii). This notification also says that it shall not apply to 1) State Police Service 2) State Forest Service and 3) State Judicial Service, but this exception is not relevant. 10. The first contention of both the above applicants-officers is that both of them are holding the posts which are equivalent to the post of Deputy Collector in the State Civil Service and they answer that criteria prescribed in the above G.O.Ms.No.634 and Regulation 4 and therefore their names ought to be considered for selection under the Regulations. Their second contention is that the Commissioner has no power to decide or filter which officers should be sent to the Government for consideration and onward transmission to the Committee as contemplated under the Regulations and therefore the action of the Commissioner in not forwarding their names is contrary to the Regulations and also the terms of G.O.Ms.No.634. 11. Sri Surender Rao, the learned counsel appearing for the Deputy Commissioner of Commercial Taxes in support of his above contention relied upon three documents namely D.O. letter No.21-Special-A-3-2010 dated 17.5.2010 sent by the Principal Secretary to the Government (Political) addressed to the Heads of Department instructing them to forward the names for sending proposals, a letter dated 18.6.2010 sent by the Commissioner to the Principal Secretary to Government seeking a clarification as to upto what level the names of officers can be forwarded and a clarification memo No.483/Spl.A/2010-1 dated 21.6.2010 received by the Commissioner from the Chief Secretary to Government and contended that the said documents show that his client’s name has to be forwarded by the Commissioner and that he has no other option as she answers the criteria mentioned in G.O.Ms.No.634 and also the aforesaid first letter dated 17.5.2010. In support of his contentions, Sri Surender Rao relied on the judgments of the Supreme Court reported in AJIT SINGH AND OTHERS vs. THE STATE OF PUNJAB AND OTHERS[1], HUKAM CHAND SHYAM LAL vs. UNION OF INDIA AND OTHERS[2], BABU VERGHESE AND OTHERS v. BAR COUNCIL OF KERALA AND OTHERS[3], GUJARAT URJA VIKASH NIGAM LTD. vs. ESSAR POWER LTD.[4], A. MANOHARAN AND OTHERS vs. UNION OF INDIA AND OTHERS[5], SMT. S. R. VENKATARAMAN vs. UNION OF INDIA AND ANOTHER[6], SOMESH TIWARI vs. UNION OF INDIA AND OTHERS[7], R.S.GARG vs. STATE OF U.P.[8] and YERNENI RAJA RAMCHANDER vs. STATE OF A.P.[9] There is no dispute with regard to the propositions of law laid down in these judgments and the said propositions can be broadly stated as follows. a) The right to be considered for promotion is a fundamental right. b) If a statue prescribes that a particular power given by it should be exercised in a particular manner, then such power should be exercised in that manner, otherwise the exercise of that power would be invalid. c) If a statutory authority or other authority exercises a power which is not given to it or exercises it transgressing its limits either deliberately or innocently then it would amount to acting in malice and would be illegal. d) If promotions to posts are ordered in accordance with executive instructions which are contrary to the rules then such promotions would be bad unless rules are amended so as to make such instructions as part of the rules. 12. Elaborating the above contention of Sri Surender Rao, he and Sri J. Sudheer who supported him argued that the initial screening of the officers can be done only by the State Government under Regulation 4 whereunder it has to forward candidates in the ratio of 1:5 and thereafter the second screening has to be done by the Committee which has to forward the names ultimately to the Central Government/ Union Public Service Commission and consequently the Commissioner cannot refuse to forward their names. Both the learned counsel further contended that the records of the both the officers are clean and they have also been rated as outstanding and this is also a circumstance which shows that the Commissioner ought to have forwarded their names to the Government. Sri Surender Rao also relied upon the propositions of law laid down in the above decisions of the Supreme Court and contended that the action of the Commissioner in not sending the names of the present two officers would also amount to malice in law and therefore sought for allowing of W.P.No.32290 of 2010 filed by the Deputy Commissioner of Commercial Taxes. Sri J. Sudheer, learned counsel also argued on the above lines and contended that his client’s name ought to have been forwarded. It is the contention of both the counsel that the Commissioner has no power to withhold their names at his level and it is only for the Government and the Committee under the Regulations to decide whether or not their names should ultimately be forwarded to the Central Government/Union Public Service Commission and consequently this Court should dismiss the writ petitions filed by the Government and allow the writ petition filed by the other officer i.e. Deputy Commissioner of Commercial Taxes. 13. The stand of the Government is that there are only three vacancies/posts in the year 2010 to be filled up by the officers from Non-State Civil Service cadre and if the heads of departments are not given any discretion to limit the number of officers to be forwarded by them about more than 300 officers names have to be considered and therefore the Commissioner and the other heads of departments are well within their power to restrict the zone of consideration of the officers upto a particular level from whom the names have to be forwarded. The reasons recorded by the Commissioner in his order dated 25.10.2010 (CCT’s Ref.No.D2/1741/2009) would become relevant here and they will be referred to infra. The learned Additional Advocate General also pointed out that going by the criteria prescribed in G.O.Ms.No.634 even Commercial Tax Officers would become eligible for being considered and since Assistant Commissioners and Deputy Commissioners will be their reporting officers or writing their Annual Confidential Reports an unhealthy competition would develop in the department and therefore the Commissioner thought it fit to send the outstanding officers from the level of or category of Additional Commissioners and Joint Commissioners in his department. 14. The learned Additional Advocate General further submitted that the Commissioner or any other head of the department are well within their power to restrict the level of officers upto a particular category from whom names can be sent in the department and therefore there is nothing wrong in refusing to send the names of the present Deputy Commissioner of Commercial Taxes and the officers below their level. He relied upon the decisions reported in UNION OF INDIA v. MOHAN LAL CAPOOR AND OTHERS[10], GURUDIAL SINGH FIJJI vs. STATE OF PUNJAB AND OTHERS[11], P.M. BAYAS vs. UNION OF INDIA[12], STATE OF NCT OF DELHI vs. SANJEEV alias BITTOO[13]. 15. The point that now arises for determination is whether in the circumstances the Commissioner has got the power to restrict the names of officers to be sent from upto a particular level or category for being considered for IAS officers posts by way of selection from Non-State Civil Service officers. 16. The respective cases of the parties and their contentions relevant to the point have already been set out supra. It is true that a perusal of the language of Regulation 4, G.O.Ms.No.634, the letter dated 17.05.2010 of the Principal Secretary (Political) to the Government addressed to the Heads of Departments, the Government Memo dated 21.06.2010 given in reply to the clarificatory letter dated 18.06.2010 of the Commissioner do not show that the Commissioner can restrict the zone of consideration of the officers upto a particular level or category in the service in his department from whom names have to be forwarded to the Government. On the other hand, the Government Memo No.24407/CT.1(1)/2010-2 dated 01.07.2010 would show that the Commissioner has been informed that he may send the proposals of the eligible Non-State Civil Service officers of the cadre of Assistant Commissioner of Commercial Taxes and above who are of outstanding merit. The above documents do not show that the Commissioner was permitted to send only the names of officers from upto the level of Additional Commissioners and Joint Commissioners. There is no dispute about this aspect. 17. The question however is whether the names of these two officers should be mechanically forwarded by the Commissioner just because they answer the above requirements or the Commissioner has got any discretion to send the names of those officers upto a particular level or category. 18. Sri Surender Rao and Sri J. Sudheer relying upon the language of Regulation 4 and G.O.Ms.No.634 argued that since Rule 4(c) of the Indian Administrative Service Rules 1954 speaks of only selection in special cases and this rule does not contemplate seniority and therefore seniority factor should be ignored and the names of all the eligible officers as per G.O.Ms.No.634 and Regulation 4 of the Regulations should be sent. They also pointed out that while Regulation 5(ii) of the Indian Administrative Service (Appointment by Promotion) Regulations 1955 which deals with promotion of Deputy Collectors to IAS speaks of seniority factor to be taken into account for preparation of the list of the officers, such requirement of seniority being taken into account under the Regulations is not there and therefore the Commissioner cannot be said to be right in going by seniority and restricting the names of the officers to be sent upto the level of Additional Commissioners and Joint Commissioners as that would amount to going by seniority only. Sri Surender Rao relying on the decision reported in S.R. VENKATARAMAN case (6 supra) contended that the act of the Commissioner in not sending the names of both these officers to the Government by restricting the level of officers upto Additional Commissioner and Joint Commissioner would amount to malice in law inasmuch as the Regulations and above documents do not give him any such discretion. This contention does not merit acceptance for the reason that the question of any malice either in law or fact does not arise here as the Commissioner did not single out the two officers here and refused to send their names, but he also refused the names of all the officers below the rank of Additional Commissioners and Joint Commissioners, who constitute a class by themselves. 19. In the present case, the Commissioner did not strictly go by rule of seniority among the eligible officers in the Commercial Taxes Department. The course adopted by him is that since a large number of officers have to be forwarded going by the criteria of eligibility as per Regulation 4(iii) and G.O.Ms.No.634, he restricted the zone or level of officers for consideration upto the level of Additional Commissioners and Joint Commissioners. Thus this is a case where the seniority rule has not been followed but the zone of consideration has been restricted upto a particular level. In this connection it may be noted that the Commissioner in his order dated 25.10.2010 questioned by the Assistant Commissioner before the Tribunal, has stated that there are nearly 300 CTOs and above cadres fulfilling the minimum eligibility criteria and that if the name of the present Assistant Commissioner has to be forwarded only on the ground of eligibility criteria about nearly 90 other officers in the cadre of Assistant Commissioners who are senior to him and are also eligible have to be forwarded and therefore as the vacancies are only three he limited the zone of consideration to the level of Additional Commissioners and Joint Commissioners. 20. The learned Additional Advocate General in this connection further pointed out that for the three admitted vacancies the Government have to consider the names of officers not only from the Commercial Taxes Department but also from the other departments and if the argument of the applicant officers that all eligible officers should be considered is accepted the Government will be faced with a situation where it has to consider hundreds of officers whereas it has to send only 15 names for the three vacancies for the ratio of 1:5. It may be noted that if hundreds of officers have to be considered by the Government for only three vacancies the whole selection process may become unworkable and also unmanageable having regard to the fact that only 15 names have to be forwarded. It should also be noted that each officer may have his own method of stalling the proceedings with the result that the selection process cannot go on smoothly. 21. It is true that Regulation 4 and G.O.Ms.No.634 do not contemplate restriction of the officers upto a particular level or category from which the names of the officers have to be forwarded but at the same time the said Regulation or G.O.Ms.No.634 do not prohibit the head of the department in a given situation like this to restrict the zone of consideration in his department upto a particular level or category for administrative convenience. We find force in this contention of the learned Additional Advocate General. It may be noted that as pointed out by the learned counsel for the applicant officers Regulation 5(ii) of the IAS (Appointment by promotion) Regulations, 1955 speaks of seniority but not the IAS (Appointment by Selection) Regulations, 1997. 22. In UNION OF INDIA v. MOHAN LAL CAPOOR AND OTHERS reported in (1973) 2 SCC 836 the Apex Court dealt with IAS (Appointment by Promotion) Regulations, 1955 and Regulation 5(ii) of the said Regulations spoke of seniority factor to be considered unlike the present Regulation 4 of IAS (Appointment by Selection) Regulations, 1997 which does not speak of seniority. In GURUDIAL SINGH FIJJI vs. STATE OF PUNJAB AND OTHERS reported in (1979) 2 SCC 368 the Apex Court was considering certain resolutions of the Government of India which provided for the requirement of issuance of an integrity certificate by the competent authority for an officer for his inclusion in the select list under the IAS (Appointment by Promotion) Regulations, 1955 and it was held that the said Regulations were valid. In P.M. BAYAS vs. UNION OF INDIA reported in (1993) 3 SCC 319 the fight was between Maharashtra State Civil Service officers and officers belonging to other services for appointment to the posts of IAS officers under the Selection Regulations as they stood then. The above decisions cited by the learned Additional