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CASE NO.: Appeal (civil)  5883-5891 of 2007

PETITIONER: M.V.Thimmaiah & Ors

RESPONDENT: Union Public Service Commission & Ors.

DATE OF JUDGMENT: 13/12/2007

BENCH: A.K.MATHUR & MARKANDEY KATJU

JUDGMENT: J U D G M E N T [Arising out of S.L.P.(c) Nos.23060-23068 of 2005] With:

Civil Appeal Nos. 5894-5902 of 2007      [Arising out of S.L.P.(c) Nos.23484-23492 of 2005]

Civil Appeal Nos. 5903-5911 of 2007      [Arising out of S.L.P.(c) Nos.23571-23579 of 2005]

Civil Appeal No. 5912 of 2007    [Arising out of S.L.P.(c) No.23852 of 2005]

Civil Appeal Nos. 5913-5921 of 2007      [Arising out of S.L.P.(c) No.25764-25772 of 2005]

Civil Appeal No. 5922 of 2007    [Arising out of S.L.P.(c) No.900 of 2006]  

Contempt Petition ) No.131 of 2006 in  S.L.P.(c) Nos.23060-23068 of 2005.  

A.K.MATHUR,J.

1.      Leave granted in all the Special Leave Petitions.

2.      All these appeals arise against the common order dated 6.10.2005  passed by the Division Bench of the High Court of Karnataka while  disposing of  a bunch of petitions arising out of the common order dated  4.10.2004 passed by the Central Administrative Tribunal, Bangalore Bench  (hereinafter to be referred to as the Tribunal). The Tribunal by the  aforesaid order set aside the recommendations of the Selection Committee  to fill up 8 vacancies  belonging to the non-State Civil Service  Officers of Government of Karnataka to the Indian Administrative Service  (IAS) of Karnataka cadre on the ground of mala fides, arbitrariness and  also on the ground that the Selection Committee without application of  mind had awarded marks to the selected candidates in a discriminatory  manner.  It was also held by the Tribunal that  the Selection Committee  was not properly constituted as per the provisions of Regulation 3 of  the Indian Administrative Service (Appointment by Promotion)  Regulations, 1955 (hereinafter to be referred to as  the  Regulations of  1955). Out of the bunch of petitions which were filed before the  Karnataka High Court, two petitions were filed by the Union Public  Service Commission ( hereinafter to be referred to as the Commission),  first is that the Chairman of the Selection Committee, Shri Subir Dutta,  Member, U.P.S.C. against whom the allegation of mala fide was leveled  and it was upheld by the Tribunal, second one challenging the finding of

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the Tribunal that the Selection Committee was not properly constituted  and the Selection Committee acted arbitrarily and in a discriminatory  manner and awarded marks to the selected candidates. Another batch of  petitions (seven in number) was filed  by the selected candidates whose  names were recommended for appointment to the I.A.S. and two writ  petitions were filed by the persons who were not short-listed by the  Screening Committee. Hence, all these petitions were clubbed together  and were disposed of by the common order as aforesaid.  

3.              Learned Division Bench of the Karnataka High Court after  hearing all the parties found that the allegation of mala fide leveled  against Shri Subir Dutta, Member of the Commission was not well founded,  that the Selection Committee was properly constituted and the Committee  did not act in arbitrary or discriminatory manner while awarding the  marks to the selected candidates. Hence the order of the Tribunal was  set aside. Aggrieved against this order passed by the Division Bench of  the Karnataka High Court dated 6.10.2005, the present appeals were filed  by the aggrieved persons. Hence, the appeals have now finally come up  before us for disposal.

4.              The appointment to the I.A.S. from the State cadre can be made  other than the State Civil Service  in case an incumbent is having  outstanding merit and ability  and holds a gazetted post in a  substantive capacity and has completed not less than eight years of  service in 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. The candidates shall not exceed five times the posts proposed  to be filled up during the year. An incumbent should not have attained  the age of 54 years, as per the Regulations of 1997. Regulation 5 says  that a list shall be prepared  of the suitable candidates by the  Committee after scrutiny of service records and personal interview. The  Committee has been defined in Regulation 2(i)(a) which means a Committee  as constituted under Regulation 3 of Regulations, 1955. As per the  Regulations, the Committee shall be headed by the Chairman of the  Commission or  if the Chairman fails to attend, by any other Member of  the Commission. The Chairman or the Member of the Commission shall  preside over the meetings. Regulation  3(3) further says that the  absence of a member, other than the Chairman or Member of the  Commission, shall not invalidate the proceedings of the Committee if  more than half the members of the Committee had attended the meeting.  Regulation 3(3) which will have relevant bearing reads as under:

               \023 3(3)       The absence of a member, other than  the Chairman or Member  of the Commission, shall not  invalidate  the proceedings of the Committee if more  than half the members of the Committee had attended  the meetings.\024

Apart from the Member of the Commission, as per the schedule referred to  for the State, the following members shall also be the members of the  Committee which includes the Chief Secretary to the Government;  Additional Chief Secretary to the Government; Principal Secretary to  Government, Revenue Department; Senior most Divisional Commissioner and  two nominees of the Central Government. This Selection Committee after  scrutiny of the records and calling for personal interview will prepare  a list and recommend the names of the suitable candidates to the State  Government concerned, which shall forward to the Commission for its  approval along with the records of all members of the State Civil  Service included in the list; the records of all members of the State  Civil Service who are proposed to be superseded by the recommendations  made in the list and the observations, if any, of the State Government  on the recommendations of the Committee to the Central Government and  the Central Government shall also forward their observations, if any, on  the recommendations of the Committee to the Commission. Thereafter, the

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Commission as per Regulation 7 of 1997 shall consider the list prepared  by the Committee; observations, if any, of the Central Government or the  State Government concerned, on the recommendations of the Committee and  approve the list subject to the provisions of Regulation 7(2) of the  Regulations, 1997. As per Regulation 7(2); if the Commission considers  it necessary to make any changes in the list received from the State  Government, the Commission shall inform the State Government and the  Central Government of the changes proposed and after taking into account  these comments, if any, of the State Government and the Central  Government, may approve the list finally with such modification, as may  in its opinion be just and proper. That list shall be forwarded to the  Central Government and the Central Government shall make appointment on  the basis of the list but if the Central Government is of the opinion  that it is necessary or expedient so to do in the public interest may  not appoint any person and it is within the domain of the Central  Government and it need not record its reasons or communicate the same to  the Commission. In this scheme of the Rules, the factual controversy  shall be examined. 5.              In the present case eight vacancies were advertised and the  process of recruitment to these vacancies was undertaken. The State  Government constituted a Screening Committee for short-listing of the  Officers  not belonging to the State Civil Service. The Committee was  headed by Shri B.S.Patil, Chief Secretary to the Government and four  other Members who were the Secretaries to the Government of Karnataka.  As per Circular dated 30.3.2002 the Government had directed various  Heads of the Department to send a list eligible suitable officers who  fulfil the aforesaid eligibility criteria. In pursuance of this circular  79 names were received from different Departments and their cases were  scrutinized by the Screening Committee  with reference to their records  for short-listing the names which could be sent to the Commission for  selection to the I.A.S. cadre.  Since the number of persons to be  considered shall not exceed five times  the vacancies proposed to be  filled up in that year, therefore, as against eight vacancies 40  candidates were to be short-listed. The Screening Committee short-listed  40 candidates on the basis of the service records out of the 79  candidates whose names were received from different Departments.  Besides, the name  of one more person was sent to the Selection  Committee for selection because of the order passed by the Tribunal.   Thus, in total names of 41 persons were sent for consideration against  eight vacancies. The Selection Committee after scrutinizing  the cases  and after interviewing 39 candidates selected eight candidates and two  candidates remained absent. Though a petition was filed before the  Tribunal by one person who was not selected and stay order was obtained  that was challenged before the High Court and the High Court allowed the  writ petition and vacated the interim order passed by the Tribunal  staying the selection and permitted the selection to be taken to its  logical conclusion subject to the condition that the order passed by the  Tribunal shall be subject to challenge before this Court. Then one  Special Leave Petition was filed before this Court against the order  passed by the Division Bench vacating the stay order passed by the  Tribunal that Special Leave Petition was dismissed on 23.7.2004.  Thereafter, the matter was finally heard by the Tribunal and  the  Tribunal set aside the selection of eight selected candidates of the  Karnataka cadre to the I.A.S. The Tribunal was of the view that the  Selection Committee was not properly constituted as per the provisions  of Regulation 3 of the Regulations, 1955 and the Tribunal further took  the view that the selection of eight candidates stood vitiated as a  result of mala fide on the part of Shri B.S.Patil, Chief Secretary and  Shri Subir Dutta, Member of the Commission who was the Chairman of the  Selection Committee. It was further observed by the Tribunal that the  selection was not fair and selection was being made in an arbitrary  manner. However, the name of two persons who were not short-listed was  rejected by the Tribunal on the ground that there was no arbitrariness   for their non-inclusion. That order was challenged by them before the  High Court by filing writ petition.  The Division Bench of the High

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Court after examining the matter found that all the grounds raised by  the writ petitioners were not sustainable.  6.              The controversy involving  the selection could be divided into  two parts; (i) mala fide  and (ii) the constitution of the Selection  Committee and the selection of the candidates. So far as  the first  argument with regard to mala fide is concerned, Shri Subir Dutta was not  impleaded  as a party, but subsequently, he was impleaded as a party  respondent. The first ground which was alleged is that the select list  is not only arbitrary but also a product of favouritism shown to the  selected candidates notwithstanding the fact that the appellants had  outstanding records but their names were not included solely for the  reason that the Selection Committee was headed by Shri Subir Dutta,  Member of the Commission  and Shri B.S.Patil, the Chief Secretary to the  Government being one of the constituents  of the Committee being  interested  in the candidature of Respondents 5 to 12  before the  Tribunal and as a result of such selection,  their candidatures have not  been considered in a proper and objective manner and they did not  receive a fair treatment from the Selection Committee.  It is alleged  that the selection was vitiated on the ground that  Shri Subir Dutta,  who was the Chairman of the Selection Committee was appeased  with the  piece of land in  the city of Bangalore i.e. he was allotted a site in  Bangalore irrespective of the fact that  whether he was eligible or not.  It was submitted that during the process of selection and on the basis  of interview, a site has been bartered away in favour of Shri Subir  Dutta and   in that  the former Chief Secretary to the Government, Shri  B.S.Patil has shown a great interest. Therefore, on account of this  favouritism was shown to respondents 5 to 12 before the Tribunal, the  applicants before the Tribunal have been denied their legitimate  selection and therefore, in sum total, the allegation of mala fide  against Shri Subir Dutta is that a site was allotted to him to appease  him and secure favourable selection in respect of Respondents 5 to 12.  The High Court in order to verify the element of truth sent for the  original file relating to the allotment of residential site to Shri  Subir Dutta from Bangalore Development Authority wherein it is noted  that on 11.4.2003 a note was placed by Shri B.S.Patil, the Chief  Secretary, to the Chief Minister making a request that a site be  allotted to Shri Subir Dutta as he has attachment to the State of  Karnataka and he has been helpful both for selecting Bangalore for bi- annual Air Shows and for grant of defence land for the purpose of road  network in Bangalore. For that on 17.4.2003  the Chief Minister approved  the proposal of the Chief Secretary for allotment of a residential site  to Shri Subir Dutta  who was at that time  the Defence Secretary. After  that necessary formalities for allotment was undertaken. On 17.4.2003   when a site was allotted to Shri Subir Dutta, he was the Defence  Secretary to Government of India and he was not a Member of the  Commission and he became a Member of the Commission only on 1.7.2003 and  assumed charge on 4.7.2003 as Member of the Commission. The selection  took place in November, 2003. Therefore, the  Division Bench of the High  Court rejected the allegation of mala fide to be far-fetched. We gave  our thoughtful consideration to this allegation. There is no correlation  with this selection.  It is too far fetched to connect with this case  that Shri Subir Dutta who was given the residential site in lieu of his  service rendered to the State of Karnataka, would necessarily favour the  candicates.  The short-listing was done by the Screening Committee   headed by the Chief Secretary along with four Secretaries of the State  and there was no mala fide intention in short-listing of these persons,  now to think that just because Shri Dutta was allotted some land so that  necessarily  he would favour these selected candidates only is nothing  but figment of imagination of the appellants. To connect  the selection  with the previous allotment of land to Shri Subir Dutta has hardly any  connection between the two.  In the selection process Shri Subir Dutta  was one of the Members along with others. All the Officers who were to  be selected belonged to Karnataka State and it is not specific that any  of the selected candidates has in any manner actively associated with  the  allotment of land to Shri Subir Dutta. It is too remote to connect  

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the selection of these candidates with the allotment of the site to Shri  Subir Dutta.  We do not find any connection that any of the selected  candidates has in any manner directly or indirectly associated himself  in the allotment of the site in favour of Shri Subir Dutta. As it  appears from the file which was summoned by the High Court  that the  proposal was mooted out by the Chief Secretary and it was approved by  the Chief Minister. Therefore, there appears no direct or indirect  connection with the selection of candidates and allotment of residential  site  in favour of Shri Subir Dutta. As such, the allegations are too  far-fetched to render the entire selection invalid on the ground of so  called mala fide. This is purely flight of imagination and we strongly  reject the allegation of mala fide against Shri Subir Dutta, the  Chairman of the Selection Committee. 7.              So far as the allegation of mala fide against  Shri B.S.Patil  is concerned,  he was not impleaded as a party. Therefore, the  allegation of mala fide could not be entertained by the Tribunal. As  such, the allegation of mala fide against Shri B.S.Patil could not be  taken into consideration and rightly so, by the High Court as well as by  the Tribunal. The allegation of mala fide is very easy to be levelled  and it is very difficult to substantiate it, specially in the matter of  selection or whoever is involved in the decision making process. People  are prone to make such allegation but the Courts owe a duty to  scrutinize the allegation meticulously because the person who is making  the allegation of animous sometimes bona fidely or sometimes mala fidely  due to his non-selection. He has a vested interest. Therefore, unless  the allegations are substantiated beyond doubt, till that time the Court  cannot draw its conclusion. Therefore, we reject  the allegation of mala  fide.  8.              Now, coming to the constitution of the Selection Committee and  the selection undertaken by the Committee, so far as the constitution of  the Selection Committee is concerned,  one of the submissions was that   the Divisional Commissioner who was supposed to be the Member of the  Selection Committee was not there. Therefore, the whole selection stood  vitiated.  So far as this argument is concerned, suffice it to say that   the post of Divisional Commissioner  was  abolished by the State  Government with effect from 1.4.2003 and the said fact was informed to  the Commission about the abolition of the post and it was requested to  suitably amend the schedule as per Regulation 3 of the Regulations of  1955. Since the post of Divisional Commissioner was not in existence and  the same having been abolished  there was no question of including the  Divisional Commissioner as a Member of Selection Committee specially  when the Government of Karnataka has already informed the Commission to  amend the schedule. When the post of Divisional Commissioner was not  there that would not render the selection or would not make the   Selection Committee non-functional as out of the seven Members six  Members participated  in the Selection Committee and Regulation 3  clearly says that  absence of a Member, other than the Chairman or  Member of the Commission, shall not invalidate  the proceedings of the  Committee if more than half the Members of the Committee had attended  its meetings. Therefore, this contingency has already been taken care by  Regulation 3(3) that in case any Member is unable to participate in the  selection process except the Member of the Commission and  more than  half of the members have attended the meeting, then the proceedings of  the Committee shall not vitiate in the absence of such Member. As such  the Selection Committee in the absence of Divisional Commissioner cannot  be said to be not properly constituted. More so there is no prejudice  caused to the appellants as out of the seven Members, six Members  of  the Selection Committee were there which is more than 50%. As such,  nothing turns on this. We hold that the Selection Committee was properly  constituted.  9.              Now, comes the question with regard to the selection of the  candidates. Normally, the recommendations of the Selection Committee  cannot be challenged except on the ground of mala fides or serious  violation of the statutory Rules.  The Courts cannot sit as an appellate  authority to examine the recommendations of the Selection Committee like

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the Court of appeal. This discretion has been given to the Selection  Committee only and Courts rarely sit in court of appeal to examine the  selection of the candidates nor is the business of the Court to examine  each candidate and record its opinion. In this connection, learned  senior counsel for the appellants has taken us through various following  decisions of this Court.  

(i)     AIR 2003 SC 3044 Surya Dev Rai v. Ram Chander Rai & Ors.

(ii)    (1993) 3 SCC 319 P.M.Bayas V. Union of India  & Ors.

(iii)   (1985) 4 SCC 417 Ashok Kumar Yadav & Ors. V. State of  Haryana & Ors. Etc.

(iv)    (1981) 1 SCC 722 Ajay Hasia & Ors. V.  Khalid Mujib Sehravardi & Ors.

(v)     2007 (3) SCALE 219 Union Public Service Commission v. S.Thiagarajan & Ors.

Mr.P.P.Rao, learned senior counsel appearing for the private respondents  invited our attention to the following decisions of this Court.

(i)     (1976) 3 SCC 583 Dr.G.Sarana V. University of Lucknow & Ors.

(ii)    (1980) @ SCC 355 Mrs. Kunda S.Kadam v. Dr.K.K.Soman & Ors.  

(iii)   (2002) 1 SCC 749 Ashok Nagar Welfare Association & Anr. V R.K.Sharma & Ors.

Learned Senior Counsel for the  Commission invited our attention to the  following decisions of this Court.

(i)     (1973) 2 SCC 836 Union of India v. Mohan Lal Capoor & Ors.

(ii)    (1981) 4 SCC 159 Lila Dhar V. State of Rajasthan & Ors.

     (iii)  (1985) 4 SCC 417 Ashok Kumar Yadav & Ors. V. State of  Haryana & Ors. Etc.                  (iv)    1986 (Supp) SCC 617 R.S.Dass V. Union of India & Ors.etc.

               (v)       1987 (Supp) SCC 401                           State of U.P. V. Rafiquddin & Ors. Etc.

(vi)    (1988) 2 SCC 242 Union Public Service Commission V. Hiranyalal Dev & Ors. Etc.

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     (vii)  (1983) 3 SCC 241         Mehmood Alam Tariq & Ors. V.         State of Rajasthan & Ors.

     (viii) (1990) 1 SCC 305              Dalpat Abasaheb Solunke & Ors. V.              Dr.B.S.Mahajan & Ors.

     (ix)  1992 Supp. (2) SCC 481        National Institute of Mental Health              And Neuro Sciences v. Dr.K.Kalyana Raman & Ors.

     (x)  (1993) 1 SCC 17        Indian Airlines Corporation v.        Capt. K.C.Shukla & Ors.

     (xi)  1993) 3 SCC 319             P.M.Bayas v. Union of India & Ors. Etc.

     (xii)   1994 Supp. (1) SCC 454               C.P.Kalra v. Air India through its                   Managing Director, Bombay & Ors.

(xiii)  (1997) 1 SCC 280                    Anil Katiyar (Mrs.) v. Union of India & Ors.

               (xiv)   (1997) 9 SCC 151                      All India State Bank Officers\022Federation & Ors. V.                   Union of India & Ors. Etc.                     (xv)   (1998) 3 SCC 694                    Union of India & Anr. V.                    N.Chandrasekharan & Ors.

       (xvi)   (2004) 6 SCC 786                 Inder Parkash Gupta v.                    State of J & K & Ors.

       (xvii)  (2006) 6 SCC 395                    K.H.Siraj v, High Court of Kerala & Ors.  

10.     Keeping in view the ratio laid down by this Court in several  decisions, now we shall examine  the argument of learned senior counsel  for the appellants which had been addressed. But we may at the very out  set observe that the Court while considering the proceedings of the  Selection Committee does not sit in a court of appeal. Courts have  limited scope to interfere, either selection is actuated with mala fide  or statutory provisions have not been followed.  In the present case, 39  candidates were examined by the Selection Committee for being  recommended for appointment to the I.A,S.  The selection process took  place between 24.11.2003 and 28.11.2003 whereby the Selection Committee  scrutinized the service records of the individual candidates and  interviewed them and the Selection Committee selected those candidates  who were found to be having outstanding merit and ability. The  Commission has fixed 50 marks  for scrutiny of the service records and  50 marks  were allotted for interview. It was also decided by the  Commission that the candidates would be eligible for selection only if  they secure 50% marks in each of the two components i.e. 25 marks in the  scrutiny of the service records and 25 marks in the interview. The  Commission has further laid down the norms for awarding marks for the  scrutiny of service records. 10 marks are awarded to a candidate if on  an assessment of service record he was found to be outstanding, 8 marks  if the service record was found to be very good and 5 marks if it was

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good. Candidates who have failed to secure 25 marks in the interview  were not held to be qualified. Similarly, the candidates who failed to  secure 25 marks on the basis of the service records were also not held  to be eligible. However, on facts no person was rejected on the ground  that he failed to secure 25 marks either on the basis of the service  records or on the basis of interview.  The Tribunal while scrutinizing  the  records sent by the Selection Committee set aside the selection of  eight candidates namely Sarvashri Anwar Pasha and K.Ramanna Naik, who  according to the Tribunal were wrongly selected.  The block period is  five years for which the confidential records of the candidates were  scrutinized by the Selection Committee i.e. from 1997-98 to 2001-02. It  is alleged that the confidential report of Shri Anwar Pasa for the year  1998-99 was written on 14.6.2002 and for the year 1999-2000 was written  on 15.6.2002. It is further alleged that these confidential reports were  written beyond the time limit prescribed by Rule 8 of the Karnataka  Civil Services (Performance Reports) Rules, 1994 (hereinafter to be  referred to as the \023Rules of 1994\024) and the same could not have been  looked into by the Selection Committee. Therefore, the selection of Shri  Anwar Pasha was invalid. It was found by the Selection Committee that   the Annual Confidential Reports of this Officer  for these two years  were not written within the time limit prescribed as required under Rule  8 of the Rules of 1994. But it was pointed out that Rule 8 of the Rules  of 1994 was amended in 1999 and the time limit prescribed was done away  with retrospective effect. It was provided as per clause (b) of Rule 5  of the amending Rules of 1999  that the reports written or reviewed or  accepted in accordance with the 1994 Rules as amended in the year 1999   shall be deemed to be valid for the purpose of that rule. But in view of  the retrospective amendment of the Rules of 1999, the time limit having  been done away with  the reports could have been taken into  consideration but it was further pointed out that the Rules of 1994 were  repealed in 2000 and the provisions of Karnataka Civil Services  (Performance Reports) Rules, 2000 (hereinafter to be referred to as the  Rules of 2000)  came into force.  Rule 13 of the Rules of 2000 provided  that the repeal shall not affect the previous operation of the 1994  Rules or anything duly done or suffered there under or affect any right,  liability or obligation acquired, accrued or incurred under those Rules.  Therefore, so far as the  annual confidential reports  in respect of  Shri Anwar Pasa which were written after the period of two years should  not have been taken into consideration by the Selection Committee, does  not survive because the Rules of 2000 repealed  the Rules of 1994 and  consequential amendment of Rules of 1999  was done away with. Therefore,  the reports for the years 1998-99 and 1999-2000 cannot be taken away and  these two ACRs cannot be ignored and  it has  been rightly  not ignored  by the Selection Committee. More so,  if the ACRS are not written or  reviewed, then the incumbent is not responsible for it and why should he  suffer on  account of that. The authority who is under obligation to  complete  the formalities having failed to do so till the lapse of time  why the incumbent  should be punished. We fail to appreciate the  submissions of the parties before the Tribunal and the view taken by the  Tribunal also.  It was also pointed that the operation of the Rules of  1999 was stayed by the Tribunal, that may be so. But even thereafter  also when the Rules of 2000 have repealed the Rules of 1994, then what  turns on the stay order granted by the Tribunal and we cannot hold the  incumbent responsible for it and deprive him the due consideration if   there  is failure on the part of the officers to discharge their duties  in writing the ACRs, the incumbent should not be allowed  to suffer.  Therefore, we are of opinion that it is not a case  in which there was  any statutory breach of Rules  committed by the Selection Committee in  taking into consideration the ACRs of Shri Anwar Pasha. In the case of  another candidate i.e. Shri K.Ramanna Naik, his confidential reports for  the years 2000-2001 and 2002-2002 were not written in time in terms of  Rule 8 of the Rules of 1994. Therefore, special reports were obtained,  that too is also covered by the Karnataka Civil Services (Performance  Reports) (Amendment) Rules, 1996. Rule 11-A says that when performance  reports in respect of  officers are not available for one or more years,

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the appointing authority, for the reasons to be recorded in writing, may  direct the concerned reporting officer or the reviewing authority to  prepare and submit the report within a specified time for the entire  period or for each year for which the report was not written. There  again  the question is failure on the part of the reporting officer or  the reviewing authority not writing  the report of the officer for which  the officer cannot be made to suffer. Therefore, in this background,   provisions have been made for special reports and in the administrative   jurisprudence special reports can be sought for in respect of any  officer whenever his case comes for consideration and if the Selection  Committee  wants to have the up to date report of that incumbent. It is  the established practice to call for such kind of special reports. The  idea is that for not reporting the annual confidential reports of the  incumbent, why the incumbent should be made to suffer. Therefore, the  Selection Committee or the concerned authority can always ask for the  annual confidential reports which were not written for a particular year  by the reporting authority or  by the reviewing authority or in some  cases it can also seek a special report. Such practice cannot be said to  be unusual practice in administrative jurisprudence. In the present  case, it appears that a special report  in respect of Sh. K. Ramanna  Naik was obtained and that was considered by the Selection Committee.  Therefore, this procedure adopted by the Selection Committee cannot be  found to be arbitrary or in any way discriminatory. Consideration of   both these Officers cannot be faulted on that ground. 11.             It is also contended that the marking given by the Selection  Committee was arbitrary.  The grievance was that confidential report of  Shri S.Daya Shankar  for the year 2000-2001 was not available  and in  case of Sri R. Pramapriya, the confidential report for the year 1997=98  was not available. Yet the reports of Shri S.Daya Shankar was assessed  to be outstanding  and Shri R.Ramapriya was assessed to be very good  without there being  any basis for it.  This was found by the Tribunal  to be patently arbitrary.  It is the selection process and what  prevailed with the Committee after review of the annual confidential  reports of all these officers  cannot be dilated in writing. When the  Selection Committee sits and considers the candidature of  both the  officers  and in case of both the officers, looking at the 5 years  annual confidential reports,  one is found to be over all outstanding  and the other is found to be over all very good, this marking of the  Selection Committee cannot be interfered with in extraordinary  jurisdiction or even by the Tribunal. We fail to understand how the  Tribunal can sit as an appellate authority to call for the personal  records  and constitute selection committee to undertake this exercise.   This power is not given to the Tribunal and it should be clearly  understood that the assessment of the Selection Committee is not subject  to appeal either before the Tribunal or by the Courts. One has to give  credit to the Selection Committee for making their assessment and it is  not subject to appeal. Taking the over all view of the ACRs of the  candidates,  one may be held to be very good and another may be held to  be good. If this type of interference is permitted then it would  virtually amount that the Tribunals and the High Courts started sitting  as  Selection Committee or act as an appellate authority over the  selection. It is not their domain,  it should be clearly understood, as  has been clearly held by this Court in a number of decisions.  Our  attention was invited to a decision of this Court in R.S.Dass (supra)[  1986 (Supp.) SCC 617] wherein at paragraph 28 it was held as follows:                 \023  It is true that  where merit is the sole  basis of promotion, the power of selection becomes  wide and liable to be abused with less difficulty. But  that does not justify presumption regarding arbitrary  exercise of power. The machinery designed for  preparation of Select List under the regulations for  promotion to All India Service, ensures object and  impartial selection. The Selection Committee is  constituted  by high ranking responsible officers  presided over by Chairman or a Member of the Union

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Public Service Commission. There is no reason to hold  that they would not act in fair and impartial manner   in making selection. The  recommendations of the  Selection Committee are scrutinized by the State  Government and if it finds any discrimination in the  selection it has power to refer the matter to the  Commission with its recommendations. The Commission is  under a legal obligation to consider the views  expressed by the State Government along with the  records of officers, before approving the Select List.  The Selection Committee and the Commission both  include persons having requisite knowledge, experience  and expertise to assess the  service records and  ability to adjudge the suitability of officers. In  this view we find no good reasons to hold that in the  absence of reasons the selection would be made  arbitrary. Where power is vested  in high authority  there is a presumption that the same would be  exercised in a reasonable manner and if the selection  is made on extraneous considerations, in arbitrary  manner the courts have ample power to strike down the  same and that is an adequate safeguard against the  arbitrary exercise of power. \023 12.             Our attention was invited to a decision of this Court in Union  Public Service Commission v. Hiranyalal Dev & Ors etc.[(1988) 2 SCC 242]  wherein it was held as follows:                 \023 The mere fact that the Selection Committee  erred in taking into account the non-existent adverse  remarks does not necessarily mean that the respondent  should have been categorized or considered as \021very  good\022 vis-‘-vis others who were also in the field of  choice. How to categorize in the light of the relevant  records and what norms to apply in making the  assessment are exclusively the functions of the  Selection Committee. This function had to be  discharged by the Selection Committee by applying the  same norm and tests and the selection was also to be  made by the Selection Committee as per the relevant  rules. The powers to make selection were vested unto  the Selection Committee under  the relevant rules and  the Tribunal could not have played the role which the  Selection Committee had to play by making conjectures  and surmises. The proper order for the Tribunal to  pass under the circumstances was to direct the  Selection Committee to reconsider the merits of the  respondent vis-‘-vis the official who was junior to  him. The jurisdiction of the Supreme Court under  Article 136 in this respect is, however, wider and  cannot be equated with that of the Tribunal.\024 13.             Our attention was invited to a decision of this Court in  Dalpat Abasaheb Solunke & Ors. V. Dr.B.S.Mahajan & Ors. [(1990) 1 SCC  305] wherein it was observed as follows:                 \023 It is not the function of the court to hear  appeals over the decisions of the Selection Committees  and to scrutinize the relative merits of the  candidates. Whether a candidate is fit for a  particular post or not has to be decided by the duly  constituted Selection Committee which has the  expertise on the subject. The court has no such  expertise. In the present case the University had  constituted the Committee in due compliance with the  relevant statutes. The Committee consisted of experts  and it selected the candidates after going through all  the relevant material before it. In sitting in appeal  over the selection so made and in setting it aside on

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the ground of the so called comparative merits of the  candidates as assessed by the court, the High Court  went wrong and exceeded its jurisdiction. \023 14.             Similarly in National Institute of Mental Health and Neuro  Sciences v. Dr.K.Kalyana Raman & Ors. [ 1992 Supp. (2) SCC 481], this  Court held that the expert committee finding should not be lightly  inferred.  It was held as follows :                 \023 The function of the Selection Committee is  neither judicial nor adjudicatory. It is purely  administrative. Where selection has been made by the  assessment of relative merits of rival candidates  determined in the course of the interview of  candidates possessing the required eligibility and  there is no rule or regulation brought to the notice  of the Court requiring the Selection Committee  to  record reasons, the Selection Committee is under no  legal obligation to record reasons in support of its  decision of selecting one candidate in preference to  another. Even the principles of natural justice do not  require an administrative authority or a Selection  Committee or an examiner to record reasons for the  selection or non-selection of a person in the absence  of statutory requirement.\024 15.             Our attention was invited to a decision of this Court in  P.M.Bayas v. Union of India & Ors. [(1993) 3 SCC 319]. In this case   with regard to the IAS (Recruitment) Rules, 1954 which contemplated that  special cases from among persons and special circumstances  occurring in   the rules could justify the selection of the incumbents or not, in that  context, their Lordships held as follows:                 \023 We are satisfied that there were \023special  circumstances\024 before the State Government to make  recruitment under the Regulations. In the face of  clear pleadings on the record the Tribunal was not  justified in holding that there as no material on the  record to show the existence of \023special  circumstances\024. The Tribunal was wholly unjustified   in asking the Central Government to show the existence  of \023special circumstances\024 in terms of Rule 8(2) of  the Rules. As interpreted by us the scheme of the  Rules and the Regulations clearly show that it is the  State Government which has to be satisfied regarding  the existence of \023special circumstances\024.\024 16. Our attention was invited to a decision of this Court in Anil  Katiyar (Mrs.) v. Union of India & Ors. [(1997) 1 SCC 280], it was  observed as follows:  \023The question is whether the action of the DPC in  grading appellant as \023very good\024 can be held to be  arbitrary. Shri G.L.Sanghi, the learned Senior Counsel  appearing for the Union  Public Service Commission,  has placed before us the confidential procedure  followed by the DPCs in the Union Public Service  Commission for giving overall gradings, including that  of \023outstanding\024, to an officer. Having regard to the  said confidential procedure which is followed by the  Union Public Service Commission, we are unable to hold  that the decision of the DPC in grading the appellant  as \023very good\024 instead of \023outstanding\024 can be said to  be arbitrary. No ground is, therefore, made out for  interference with the selection of Respondent 4 by the  DPC on the basis of which he has been appointed as  Deputy Government Advocate. But, at the same time, it  must be held that the Tribunal  was in error in going  into the question whether the appellant had been  rightly graded as \023outstanding\024 in the ACRs for the  years 1990-91 and 1991-92. The observations of the

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Tribunal that out of the two \023outstanding\024 gradings  given to the appellant one \023outstanding\024 grading does  not flow from various parameters given and the reports  entered therein, cannot, therefore, be upheld....\024 Therefore, in view of catena of cases, Courts  normally do not sit in  the court of appeal to assess the ARCs and much less the Tribunal can be  given this power to constitute an independent Selection Committee over  the statutory Selection Committee. The guidelines have already been  given by the Commission as to how the ACRs to be assessed and how the  marking has to be made. These guidelines take care of the proper  scrutiny and not only by the Selection Committee  but also the views of  the State Government are obtained and ultimately the Commission after  scrutiny prepares the final list which is sent to the Central Government  for appointment. There also it is not binding on the Central Government  to appoint all the persons as recommended and the Central Government can  withhold  the appointment of some persons  so mentioned in the select  list for reasons recorded. Therefore, if the assessment of ACRs in  respectof Shri S.Dayashankar  and Shri R.Ramapriya should have been made  as \023outstanding\024 or \023very good\024 it is within the domain of the Selection  Committee and we cannot sit in the court of appeal to assess whether  Shri R.Ramapriya  has been rightly assessed or Shri Dayashankar has been  wrongly assessed. The overall assessment of ACRs of both the Officers  were taken; one was found to be \023outstanding\024 and the second one was  found to be \023very good\024. This assessment cannot be made subject of  Courts or Tribunal\022s scrutiny unless actuated by mala fide.  17.             In the case of Shri S.B.Kolhar, Shri R.S.Phonde and Shri  Puttegowda, the assessment of the reporting officers and the reviewing  officers in the State have been found to be \023outstanding\024. But the  Selection Committee downgraded the assessment to \023very good\024  and this  has provided grounds to the Tribunal to interfere with  the selection of  others. The Selection Committee  normally abides by the assessment made  by the reporting officer and the reviewing authority. But the Selection  Committee is not powerless. After reviewing the candidates\022 performance,  the Selection Committee can certainly make its own assessment. The  guidelines which have been issued by the Commission also enables the  Selection Committee to assess the remarks  made by the reporting officer  or the reviewing officer and after taking into consideration various  factors like the meritorious work done or any punishment or adverse  remarks made or subsequently expunged on representation can review  the  assessment about  the candidates. Such review of the assessment is fully  within the competence of the Selection Committee  and in this connection  the observations of this Court may be relevant in Ramanand Prasad Singh  & Anr. V. Union of India & Ors. Etc. [(1996) 4 SCC 64], which reads as  under :                 \023  The Committee applies its mind to the service  records and makes its own assessment of the service  records of the candidates marking them as outstanding,  very good, good and so on. The selection Committee  does not necessarily adopt the same grading which is  given by the Reporting/ Reviewing Officer in respect  of each of the candidates. In fact the Selection  Committee makes an overall relative assessment of the  confidential report dossiers of the officers in the  zone of consideration. Thus, it does not evaluate the  confidential report dossier of an individual in  isolation. It is after this comparative assessment  that the best candidates are put in the Select List.\005\024

18.             Our attention was invited to a decision of this Court in UPSC  v. K.Rajaiah & Ors. [ (2005) 10 SCC 15]wherein it has been held as  follows:                 \023 That being the legal position, the Court  should not have faulted the so-called down gradation  of the first respondent for one of the years. Legally  speaking, the term\024 downgradation\024 is an inappropriate

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expression. The power to classify as \023outstanding\024,  \023very good\024 , \023good\024 and \023unfit\024 is vested with the  Selection Committee. That is a function incidental to  the selection process. The classification given by the  State Government authorities in the ACRs is not  binding on the Committee. No doubt, the Committee is  by and large guided by the classification adopted by  the State Government but, for good reasons, the  Selection Committee can evolve its own classification  which may be at variance with the gradation given in  the ACRs. That is what has been done in the instant  case in respect of the year 1993-94. Such  classification  is within the prerogative of the  Selection Committee and no reasons need be recorded,  though it is desirable that in a case of gradation at  variance with that of the State  Government, it would  be desirable to record reasons. But having regard to  the nature of the function and the power confided to  the Selection Committee under Regulation 5(4), it is  not a legal requirement that reasons should be  recorded for classifying an officer at variance with  the State Government\022s decision.\024 Therefore, the view taken by the High Court is correct that it is always  within the power of the Selection Committee to record its own assessment  about the selection which may be at variance with that of the reporting  officer or reviewing officer. 19.             It was also pointed out that in the case of Shri N. Sriraman  and Shri K.Ramana Naik, the Selection Committee downgraded  their  reports from \023outstanding\024 to \023very good\024 yet  they were selected.  Similar is the case with Sri K.L.Lokanatha who has not been selected.  Like wise the Selection Committee upgraded the assessment for the year  2001-02 from \023very good\024 to \023outstanding\024  yet he could not be selected.  Therefore, this is also the process of selection and the Selection  Committee constituted by  the Commission and headed by the Member of the  Commission, we have to trust their assessment  unless it is actuated  with malice or apparent mistake committed by them. It is not in the case  of pick and choose, while selection has been made rationally. The  selection by expert bodies unless actuated with malice or there is  apparent error should not be interfered with.  Lastly, the High Court  considered the case of the two candidates who were eliminated by the  Selection Committee  and their cases were not sent to the Commission for  selection to the I.A.S.cadre. The High Court found that this was  the  selection process  by the Screening Committee headed by the Chief  Secretary and these persons were not found more meritorious to be  recommended for appointment. This assessment of the Screening Committee   was found by the High Court  to be proper and there was nothing on  record to show that the candidates who were short-listed were not  meritorious.  20.             As a result of our above discussion, we find that there is no  merit in these appeals and consequently, the appeals are dismissed.   There would be no order as to costs.

Contempt Petition ) No.131 of 2006: 21.             In view of the order passed in the civil appeals, we find no  merit in the contempt petition and the same is dismissed.