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CASE NO.: Appeal (civil)  6234 of 2004

PETITIONER: Government  of India

RESPONDENT: G.Limbadri Rao & Ors.

DATE OF JUDGMENT: 22/09/2004

BENCH: K.G. Balakrishnan & Dr. AR. Lakshmanan

JUDGMENT: J U D G M E N T

(Arising out of S.L.P.(C) No.11708 of 2003)

Dr. AR. Lakshmanan, J.

       Leave granted.         The above appeal is directed against the final judgment dated 13.8.2002 of the  High Court of Andhra Pradesh at Hyderabad in Writ Petition No.9653 of 2002 following  the judgment of the High Court in Writ  Petition No.9182 of 2002 allowing the writ  petition filed by the first respondent herein.           During the year 2001, as an advance action for the year 2002, the State  Government of Andhra Pradesh’s General Administrative Department, vide their D.O.  letter No.1875/Spl.A/2001-02 dated 25.10.2001 decided to send necessary proposals to  the Union Public Service Commission for preparation of select list of Non-State Civil  Service Officers for the year 2002 for appointment to the IAS under provisions of the  IAS (Appointment by Selection) Regulations, 1997 (hereinafter referred to as "the  Regulations").  By this letter,  all  the Secretaries of the State Government Departments  had been requested to furnish the names of eligible Non-SCS officers for appointment  to the post of IAS (Appointment by Selection) for sending proposals to the Union Public  Service Commission for preparation of the select list of 2002 for appointment to the IAS  under the selection Regulations.   In the "subject" heading of the said letter, the State  Government had inadvertently indicated that proposals are being called for preparation  of the select list of Non-SCS officers for the year 2001 instead of 2002.  However, in  paragraph 2 of the said letter, it was correctly stated that the State Government had  decided to send the proposal to the Union Public Service Commission for preparing the  select list of 2002 for appointment to the IAS.  In paragraph 3 of the letter, it was stated   that those candidates who have not crossed  54 years of age as on 1.1.2002 were  eligible.           Aggrieved by the non- inclusion, the first respondent herein (G.Limbadri  Rao ), a Non-SCS officer of Andhra Pradesh,  had filed O.A.No.1711 of 2001 against  the Union of India  before the Central Administrative Tribunal, Hyderabad.  The first  respondent raised three contentions before the Tribunal: a)  As in the subject of the letter, it was mentioned that proposal  for preparation of the select list for appointment of Non-SCS  officers to the IAS for the year 2001 is to be forwarded to the  UPSC.  The applicant contended that the mention of the year  2002 in para 2 and para 3 of the letter was a mistake.  The year  2001 mentioned in the subject only is correct. b) In terms of the proviso to Regulation 4(iii) of the IAS  (Appointment by Selection) Regulations, 1997, the State  Government shall not consider the case of a person who has  attained the age of 54 years on the Ist day of January of the  year in which the decision is taken to propose the names for  the consideration of the Committee.  Thus the applicant  contended that as per the letter of the State Government issued  on 25.10.2001, wherein in the subject it was mentioned that  proposal for preparation of the select list for appointment of

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Non-SCS officers to the IAS for the year 2001 is to be  forwarded to the UPSC, the select list of 2001 is to be prepared  and not the select list of 2002.  Therefore, he is eligible for  consideration as on 1.1.2001 as he has not crossed the age of  54 years. c)      The Government of India amended Rule 16 of the All  India Services death-cum-retirement Benefit Rules,  1958 (sub-Rule (1) enhancing the age of retirement  from 58 to 60 years in respect of AIS officers including  IAS.  It is, therefore, just and proper to proportionately  increase the maximum age limit to 56 years under  Regulation 5(3) of the IAS (Appointment by Selection)  Regulations, 1997.  Failure to do so by the Government  of India is affecting the fundamental right of the  applicant who is eligible and entitled to be considered  for appointment to the post of IAS.

The Tribunal in its judgment dated 1.5.2002 upheld the decision of the State   Government not to include his name in the eligibility list for consideration by the  Selection Committee for preparation of  the select list of 2002.  The Tribunal observed  as follows: "The issue for our consideration is whether the D.O. letter issued by  the Secretary to Government in GAD to the other Secretaries calling  for proposals amounts to the decision of the State to propose names  for consideration of the Committee.  We are of the opinion that the  argument put forward by the learned counsel for the applicants not  well founded.  The subject matter of the D.O. letter contains a  typographical mistake as is clear from a plain reading for the letter.   Even after receipt of the proposal from all the departments, substantial  amount of time is taken to scrutinise each one of these proposals to be  received from various Secretaries to Government.  Thereafter the  Secretary to the Government in the GAD submits the consolidated  proposals for consideration of the Government to shortlist the names.   Mere calling of the proposals from the various departments does not  confer on the applicants a right for consideration of their cases as  laid  down under the Regulations.  The argument relating to enhancing of  age from the existing limit of 54 years to 56 years as prayed for by the  applicants is a matter impinging on the policy of the Central  Government.  We are of the view that it does not constitute an issue  applicable to the applicants alone.  We refrain from passing any orders  on the subject as the applicants had been permitted to withdraw MA  122/02 in OA 1711/2001 during the admission hearing on 8.4.2002".

Aggrieved by the dismissal of his O.A., the first respondent herein filed Writ  Petition No.9653 of 2002 in the High Court challenging these orders.  Respondent  No.1 herein  prayed to quash the order of the Tribunal and to direct  the respondent-  authorities therein  that the first respondent herein is eligible for consideration for  appointment by selection to the IAS as per Regulation  4 of the Regulations and also  to declare that the action of the Government of India in not revising the date of  eligibility from 54 years to 56 years as done in the case of IAS (appointment by  Competitive Examinations) Regulations, 1955 i.e., 28 years to 30 years under  Regulation  4(b)(ii) is discriminative which affect his fundamental rights guaranteed  under Articles 14 and 16 of the Constitution of India. The High Court allowed the writ petition for the same reasons as recorded in  the judgment/order dated 13.8.2002 in Writ Petition No. 9182 of 2002  and set aside  the impugned judgment dated 2.1.2001.  The writ petition was, accordingly, allowed  and consequent directions were also issued.  The High Court, however, rejected the  contention of the first respondent herein to consider his case for increasing the age  on  the ground that  such a relief cannot be granted by the Court and that any such  direction from the High Court would amount to compel the respondent-authorities to  act contrary to law.   The judgment passed in Writ Petition No.9182 of 2002 which was passed on  the same date, has also been filed as annexure in this appeal.  In that, the High Court  observed as under:

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"\005..In the instant case, the petitioner has not crossed the age  of 54 years as on the first day of January, 2001.  There is no option left  to the State Government except to consider the case of the petitioner  for such inclusion since he has not attained the age of 54 years as on  1.1.2001.  The attainment of age of 54 years is with reference to the  first day of January of the year in which the decision is taken to  propose the names for consideration of the Committee and not with  reference to the vacancies as such.  What is crucial is the year in  which the decision is taken to propose the names.  Admittedly, the  decision to submit the proposals has been taken and accordingly,  proposals have been called for during October, 2001 for the  preparation of select list for the year 2002.   

For the aforesaid reasons, the view taken by the respondents  not to include the name of the petitioner on the ground that he has  attained the age of 54 years as on 1.1.2002 is absolutely  unsustainable.  The respondents have committed an error in referring  to the age of the petitioner as crossing 54 years as on 1.1.2002 i.e., to  say with reference to the year in which the vacancies have arisen.   The crucial requirement is that one should not cross the age of  54  years as on the day of first day of January of the year in which the  State Government has taken decision to propose the names for  consideration of the Committee.  The year of 2001 alone is relevant.   The crucial date is Ist January, 2001.  Admittedly, as on that date, the  petitioner has not crossed the age of 54 years."

Aggrieved by the impugned judgment, the above appeal by way of special leave  has been filed before this Court.  Though the service of notice on all the respondents is  complete, none appears for the respondents.   We heard Mr. B. Datta, learned Additional Solicitor General, appearing for the  appellant.  Learned ASG contended that the construction placed by the High Court on  Regulation 4 is wholly wrong and that the State Government has to consider the case  of the first respondent herein for inclusion since he has not attained the age of 54 years  as on 1.1.2001.  The High Court erred in holding that the vacancy has to be filled with  reference to the year in which the vacancy has arisen.  Concluding his arguments,  learned ASG submitted that the view of the High Court is unsustainable and is liable to  be set aside by this Court.  In the background facts of this case, the following question of law arises for  consideration by this Court: "Whether the High Court is justified in holding that the first  respondent is entitled to be included for consideration for appointment  by selection to the IAS even though he had attained the age of 54  years on 1.1.2002 .:"

In other words, the short question that falls for consideration in the instant  appeal is as to whether the respondent have committed any illegality in considering the  case of the first respondent for non-inclusion in the proposals to be sent to the Union  Public Service Commission for preparation of the select list of Non-State Civil Services  Officers for the year 2002 for appointment to the IAS on the ground that the first  respondent has attained the age of 54 years as on 1.1.2002. To appreciate the contention of the appellant herein, Regulation 4 of the  Regulations is extracted below: "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

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(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 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."    

       There is no dispute whatsoever before us that the first respondent’s date of birth  is  20.1.1947 and he has attained the age  of 54 years as on 20.1.2001.  It is the case  of the first respondent that the other respondents have set in motion, the selection  process on 25.10.2001 calling for the proposals of the eligible Non-State Civil Services  Officers for consideration of their cases for inclusion in the select list.  It was further  contended that the name of the first respondent ought to have been included in the said  list as he satisfies all the requirements.  As is evident from the impugned order dated  2.1.2002, the respondents-authorities  refused to include the name of the first  respondent herein solely on the ground that the proposals are required to be sent in  respect of the vacancies that have arisen during 2001 and that are available as on  1.1.2002 and by which date the first  respondent herein attained 54 years of age  as on  1.1.2002.           We have already extracted Regulation 4 of the Regulations which would make it  clear that the State Government while considering the proposals is required to consider  the case of the person not belonging to the State Civil Services but serving in  connection with the affairs of the State who is of outstanding merit and ability and  holding a Gazetted post in a substantive capacity and 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 he has been declared equivalent to the post of Deputy Collector in the  State Civil Services.  The State Government is required to propose the names of such  persons who possess such qualifications for consideration of the Committee. However, the proviso mandates that the State Government shall not consider  the case of the  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 consideration of the  Committee. The first respondent  herein contended   that as is evident from the D.O. letter  dated 25.10.2001, the State Government has taken a decision to send necessary  proposals to the Union Public Service Commission for preparation of the select list of  Non-State Civil Services Officers for the year 2002 for appointment to the IAS under the  provisions of the Regulations.   In our opinion, the High Court is not correct in allowing the writ petition of the  first respondent by misquoting Regulation 4.  It is seen from the records that for the   recruitment year 2002, the proposals were received in that year and the eligibility of  officers were reckoned from the Ist  of January, 2002 as per the provisions of the  selection Regulations.  The High Court’s observation that the eligibility of the officers  were to be reckoned from 1.1.2001 is a misinterpretation of the Rules and Regulations  and this interpretation would bring to naught the entire selection process undertaken by  the Union Public Service Commission not only for the Government of Andhra Pradesh  but for all the State/Cadres where selections have been made under the selection  Regulations.  The interpretation  of the Rules by the High Court is not a harmonious  construction of interpretation of the Rules and Regulations and if not set aside would

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have wide scale implications on the selection of officers for appointment to the IAS  under the selection Regulations since the Selection Committee would then be required  to consider the eligibility of the officers of a previous and not the current year.   Moreover, the High Court has given relief to the first respondent herein under an  inadvertent typographical error in a letter of the State Government dated 25.10.2001  and this essentially circumvents the letter and spirit of the statutory Rules and  Regulations.  The typographical error in the D.O. letter dated 25.10.2001  in the  "subject" as specified:- IAS \026 Select List of Non-S.C.S. Officers for appointment to the  IAS under IAS (Appointment by Selection) Regulations, 1997 for the year 2001 \026  Proposals \026 Called for.  However, in the remaining paras, the position has been made  clear.  The eligibility was as on 1.1.2002 as indicated in paragraphs 2 & 3, that the  proposals had been called for from the various departments.   It is amply clear from the Regulation that eligibility of officers is reckoned from  the Ist of January in the year in which the SCM meets which would be 1.1.2002 in the  instant case.   The proviso to Regulation 4 clearly states 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  consideration of the Committee.   In the instant case, as already noticed, the proposal was sent by the State  Government in January, 2002.  Therefore, on 1.1.2002, the first respondent has  completed the age of  54 years.   In our opinion, the first respondent  is not eligible and entitled for considering his  name for appointment to the post of IAS by selection.   For the foregoing reasons, we are of the opinion that the impugned judgement  passed by the High Court of Andhra Pradesh is unsustainable and is liable to be set  aside.  Accordingly, we allow the appeal.  However, we order no costs.