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PETITIONER: P.M. BAYAS

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT23/03/1993

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) KASLIWAL, N.M. (J)

CITATION:  1994 AIR 1281            1993 SCR  (2) 567  1993 SCC  (3) 319        JT 1993 (2)   496  1993 SCALE  (2)228

ACT: Indian Administrative Service (Recruitment) Rules, 1954: Rules  4(1)(c) and 8(2)-Special selection-In  Special  cases from   among  persons-Meaning  of-’Special   circumstances’- Existence  of-Satisfaction of State Government in the  first instance-Central  Government’s  role-Only  at  the  time  of appointment. Words & Phrases: "In  special  cases  from among  persons"  and  "In  Special circumstances"-Meaning  in the context of LAS  (Recruitment) Rules, 1954.

HEADNOTE: The  Respondents  substantive members of  the  Maharashtra Civil Service- challenged before the Central  Administrative Tribunal  the selection of the appellants to IAS by  way  of selection  under  the IAS (Recruitment) Rules,  1954.   They claimed that their names were placed on the select list  for promotion  to IAS, but they could not be  appointed  because the  vacancies occurring in the State were being  filled  by resorting  to special selection and appointing persons  like the appellants from the non-State Civil Service.  They  also sought quashing of the appointment of five other persons who had  already  been  appointed  to  IAS  by  way  of  special selection.   The  Tribunal  quashed  the  selection  of  the appellants to LAS, and dismissed the application in  respect of the other persons.  Aggrieved by the said judgment of the Tribunal quashing their selections, the appellants preferred the present appeals. These  appeals called for interpretation of  the  expression ’in special cases from among persons’ in Rule 4(1) (c)  and the  expression ’in special circumstances’ in Rule  8(2)  of the.  LAS (Recruitment) Rules, 1954. Allowing the appeals, this Court, HELD- 11.The expression "In special cases from among persons in 568 S.4(1)(c)  of  the LAS (Recruitment) Rules, 1954  means  the selection   as  special  cases  of  the  persons  who   have established  their  outstanding  merit  and  ability   while serving  the State.  Members of the State Civil Service  who

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are  not ’outstanding’ but are only ’good’ and  ’very  good’ are  also eligible to be considered for appointment  to  [AS but   under  Rule  8(2)  of  the  Rules,  it  is   only   an ’outstanding’   officer   who  is  eligible.   It   is   the outstanding  merit  and ability which makes him  a  ’special case’ in terms of Rule 8(2) of the Rules.  Rule 8(2) of  the Rules  read with Regulation 3 of the Regulations  lays  down the  procedure  for making the  special  selection  provided under  Rule 4(1)(c) of the Rules.  The  Central  Government, being the appointing authority to the IAS, has to be finally satisfied   about   the   existence   of   the   "   special circumstances’  as a condition precedent for making  special recruitment.  The "special circumstances’ are to be spelled- out  from Rule 8(2) of the Rules read with Regulation  3  of the  Regulations.   Rule 8(2) which  talks  of  "outstanding ability and merit" when read with Regulation 3(1) and  3(4A) of  the  Regulations makes it clear that the  ’special  cir- cumstances’  required  to be seen are (i) the  existence  of officers  with 12 years of continuous service in a  gazetted post  under  the State Government  other than  State  Civil Service  Officers who are of outstanding merit  and  ability and  (ii) the satisfaction of the State Government that,  in public  interest, it is necessary to consider such  officers for promotion to the IAS. [573 D-G] 1.2. Reading  Rule 8(2) and the Regulations together  it  is clear  that the process of selection has to be initiated  by the  State  Government  and  as such it  is  for  the  State Government  in the first instance to be satisfied  regarding the  existence of the ’special circumstances".  The  Central Government  being  the appointing authority has  to  finally approve  the  State Government’s proposals which  reach  the Central Government through the process of selection. [573 H; 574 A, E] 1.3. In    the   Instance   case,   there   were    "special circumstances"   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 was no material on the record to show the existence  of  " special circumstances".  The  Tribunal  was wholly unjustified in asking the Central Government to  show the  existence of "special circumstances" in terms  of  Rule 8(2) of the Rules.  The scheme of the Rules and the  Regula- tions clearly show that it is the State Government which has to he satisfied 569 regarding  the  existence of "special  circumstances’.   The Central Government comes into the picture at the last  stage when  it  makes the appointment under  Regulation  3(4)  and 3(4A) of the Regulations. [575 H, 576 A-B] 1.4. It cannot be said that in terms of Rule 9(1) read  with Rule  9(3)(a)(ii)  of  the Rules,  no  vacancies  were  made available  for special recruits.  In fact the stand  of  the State  Government  before the Tribunal  clearly  shows  that vacancies  were  available for appointment  of  the  special recruits. [576 C-D]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No.1414 of 1993. From  the Judgment and Order dated 19.7.1991 of the  Central Administrative Tribunal, Bombay in O.A. No.556 of 1990.                          WITH                Civil Appeal No. 1415 of 1993.                             AND

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         Civil Appeal No. 1416 of 1993. V.R. Reddy, Addl.  Solicitor General, Ashok H. Desai, Harish N.  Salve,  N.B. Shetye, V.R. Manohar,  P.H.  Parekh,  Sunil Dogra,  Ms. Bina, A.S. Bhasme, C.V. Subha Rao, Chander  Uday Singh and Mukul Mudgal for the appearing parties. The Judgment of the Court was delivered by KULDIP  SINGH,J.   Leave granted in both the  Special  Leave Petitions. We  are called upon to interpret the expression "in  special cases from among persons" in Rule 4(1)(c) and the expression "in  special  circumstances"  in Rule  8(2)  of  the  Indian Administrative   Service  (Recruitment)  Rules,  1954   (the Rules). S.H.  School and three others (Civil Service  Officers)  who are  substantive  members of the Maharashtra  Civil  Service challenged  before the Central Administrative Tribunal,  New Bombay  Bench the selection of W.G. Gurde and P.M. Bayas  to the Indians Administrative Service by way 570 of  special  selection under the Rules.   They  also  sought quashing   of   the  appointment  of  five   other   persons (respondents  4  to 8 before the Tribunal) who  had  already been appointed to the Indian Administrative Service (IAS) by way  of  special  selection.   The  Tribunal  dismissed  the application of School and others so far as the five  persons already  appointed  to the LAS, respondents 4 to 8,  on  the ground  that  the  application was  belated  and  barred  by limitation.  The Tribunal, however, allowed the  application so  far as Gurde and Bayas were concerned and quashed  their selection  to the IAS.  These two appeals by way of  special leave are by Bayas and the State of Maharashtra against  the judgment of the Tribunal dated July 19, 1991. The  case of the Civil Service Officers before the  Tribunal was that they were substantive members of Maharashtra  Civil Service for about 22/25 years and their names were placed on the  select  list  for  promotion to  IAS  since  the  years 1986/1988 but they could not be appointed to the LAS because the  vacancies  occurring in the State of  Maharashtra  were being   filled  by  resorting  to  special   selection   and appointing persons like the appellant Bayas and others. We may at this stage notice the relevant Rules.  Rules  4(1) and 8(2) of the Rules are reproduced hereunder:               "4.  Method of recruitment of the  Service.               (1)  Recruitment  to  the  Service  after  the               commencement  of these rules, shall be by  the               following methods, namely:               (a) by a competitive examination;               (aa)  by selection of persons from  among  the               Emergency  commissioned  Officers  and   Short               Service  Commissioned  Officers of  the  Armed               Forces of the Union "who were commissioned  on               or after the 1st November, 1962 but before the               10th January, 1968, or who had joined any pre-               commission training before the later date, but               who were commissioned on or after that date’.               (b)   by promotion of substantive member of  a               State Civil Service;               (c)   by  selection,  in  special  cases  from               among persons, who               571               hold in a substantive capacity gazetted  posts               in connection with the affairs of a State  and               who are not members of a State Civil Service.               8(2)  The Central Government may,  in  special               circumstances and on the recommendation of the

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             State Government concerned and in consultation               with  the  Commission and in  accordance  with               such  regulations  as the  Central  Government               may,   after  consultation  with   the   State               Governments  and the Commission, from time  to               time, make, recruit to the Service any  person               of  outstanding ability and merit  serving  in               connection  with the affairs of the State  who               is not a member of the State Civil Service  or               that State but who holds a gazetted post in  a               substantive capacity." In  exercise of the power under Rule 8(2) of the  Rules  the Central Government has framed the Regulations called "Indian Administrative    Service   (Appointment    by    Selection) Regulations, 1956 (the Regulations). Regulations  3(1), 3(2), 3(2A), 3(3), 3(4) and 3(4A) of  the Regulations which are relevant are reproduced hereunder:               "3(1)   In  accordance  with   the   provision               contained  in  subrule (2) of rule  8  of  the               Recruitment  Rules, the State Government  may,               from  time  to  time, consider  the  cases  of               persons  not  belonging  to  the  State  Civil               Service  but  serving in connection  with  the               affairs of the State or States in the case  of               Joint Cadres, who               (i)   are  of outstanding merit  and  ability;               and               (ii)  have completed not less than 12 years of               continuous  service in a gazetted  post  under               the  State Government or in the case of  Joint               Cadre, under any one of the State  Governments               constituting  the  Joint Cadre,  holding  that               post  in  a substantive capacity  and  propose               the-names of officers suitable for appointment               to the service.               3(2)   the  Selection  Committee  set  up   in               accordance with               572               regulation  3  of  the  Indian  Administrative               Service     (Appointment     by     Promotion)               Regulations,   1955,   shall   consider    the               proposals of the State Government made in sub-               regulation (1) and recommend the names of such               of  these officers, if any but  not  exceeding               the number of vacancies sought to be filled up               by the State Government concerned under  these               regulations, during the next 12 months, as are               in their opinion, suitable for appointment  to               the Service.               3(2A)   the  suitability  of  a   person   for               appointment to the Service shall be determined               by a scrutiny of his confidential roll. and by               interviewing him.               3(3)  The  recommendations  of  the  Selection               Committee made under Sub-regulation (2)  shall               be   placed   before  the   State   Government               concerned  and the latter shall forward  those               recommendations to the Commission for               approval along with               (i)   the confidential record of the  officers               concerned; and               (ii)  the observations, if any, of the  State               Government  on  the  recommendations  of   the               Selection Committee.               3(4)  On their being finally approved  by  the

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             Commission,  appointments of such officers  to               the  Service  shall  be made  by  the  Central               Government.               3(4A)  Notwithstanding anything  contained  in               sub-regulation (4), the Central Government may               not  appoint any person to the  service  under               these  regulations  if it is  of  the  opinion               that,  during the period  intervening  between               the  final approval by the Commission and  the               date of proposed appointment there occurs  any               deterioration  in the work of such officer  or               there  is any other ground which  renders  him               unsuitable for appointment to the service  or,               it  is  necessary and expedient so  to  do  in               public interest:               Provided that no such decision shall be  taken               by the               573               Central Government without consulting the Commission.’ Special  selection  was  held in the  year  1990  under  the Regulations  and  Bayas  and  Gurde,  on  the  criteria   of outstanding merit and ability, were selected to the IAS  and their  names  were brought on the select  list.   The  Civil Service Officers challenged their selection primarily on the ground  that  there was no material on the  record  to  show that,-there were special circumstances" to the  satisfaction of  the  Central  Government.   The  Tribunal  accepted  the contention and set aside the selection of Gurde and Bayas. We  may  examine the scheme of the  Rules  and  Regulations. Rule 4(1) of the Rules provides four sources of  recruitment to the IAS.  The competitive examination and by promotion of substantive  members of the State Civil Service are the  two main   sources  of  recruitment.   Rule   4(1)(c)   provides recruitment  to  IAS ’by selection, in  special  cases  from among  persons, who hold in a substantive capacity  gazetted posts in connection with the affairs of a State and who  are not members of the State Civil Service’.  "In special  cases from among persons’ means the selection as special cases  of the persons who have established their outstanding merit and ability while serving the State.  Members of the State Civil Service  who are not ’outstanding’ but are only  ’good’  and ’very   good’  are  also  eligible  to  be  considered   for appointment  to IAS but under Rule 8(2) of the Rules, it  is only  an  ’outstanding officer who is eligible.  It  is  the outstanding  merit  and ability which makes him  a  ’special case’ in terms of Rule 8(2) of the Rules.  Rule 8(2) of  the Rules  read with Regulation 3 of the Regulations  lays  down the  procedure  for making the  special  selection  provided under  Rule 4(1)(c) of the Rules.  The  Central  Government, being the appointing authority to the IAS, has to be finally satisfied about the existence of the "special circumstances" as  a  condition precedent for making  special  recruitment. The "special circumstances" are to be spelled-out from  Rule 8(2) of the Rules read with Regulation 3 of the Regulations. Rule  8(2)  which talks of "outstanding ability  and  merit’ when read with Regulation 3(1) and 3(4A) of the  Regulations makes it clear that the "special circumstances’ required  to be  seen are (i) the existence of officers with 12 years  of continuous  service  in  a gazetted  post  under  the  State Government  other than State Civil Service Officers   who are   of  outstanding  merit  and  ability  and   (ii)   the satisfaction  of  the  State  Government  that,  in   public interest,  it  is necessary to consider  such  officers  for promotion to the IAS. 574

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Reading Rule 8(2) and the Regulations together it is further clear  that the process of selection has to be initiated  by the  State  Government  and  as such it  is  for  the  State Government  in the first instance to be satisfied  regarding the  existence of the "special circumstances’ as  culled-out by us in the para above. It  is  the  State Government which proposes  the  names  of suitable  officers under the Regulations for appointment  by selection to the IAS.  The proposals of the State Government are   considered   by  the  Selection  Committee   and   its recommendations  are  place  before  the  State  Government. Thereafter  the State Government sends  the  recommendations alongwith  its  observations, if any, to. the  Union  Public Service  Commission for approval.  When finally approved  by the  Commission  the appointments are made  by  the  Central Government.   Regulation  3(4A) further  provides  that  the Central  Government may not appoint any person if it  is  of the opinion that, during the period intervening between  the final  approval by the Commission and the date  of  proposed appointment,  there occurs any deterioration in the work  of such officer or there is any other ground which renders  him unsuitable for appointment or it is necessary and  expedient so to do in public interest.  It is, thus, obvious that  the "special circumstances" as required under the Rules and  the Regulations  have to be seen by the State  Government.   The Central  Government  being the appointing authority  has  to finally approve the State Government’s proposals which reach the Central Government through the process of selection. The  Tribunal allowed the application of the  Civil  Service Officers  on  the short ground that the  Central  Government failed to show the existence of "special circumstances"  for making  the  recruitment under Rule 4(1)(c) read  with  rule 8(2) of the Rules and the Regulations.  The Tribunal held as under:               ",  As  we are of the view  that  no  ’special               circumstances"  existed and that  the  special               circumstances,  if any, have not been  pointed               out  by the central Government which has  kept               mum  apart from taking the plea that  ’special               circumstances’ existed and that there was  not               violation  of rules, this method of  selection               adopted   by  the  respondents  in   selecting               respondent Nos.8 & 10 is violative of rules in               575          the absence of condition precedent for their selection." We have given our thoughtful consideration to the  reasoning and the conclusions reached by the Tribunal.  We are of  the view  that  the Tribunal fell into patent error  in  setting aside the selection of Gurde and Bayas. The  State Government in its written reply filed before  the Tribunal stated as under:               "It  is, therefore, clear that these  are  the               special   cases   where   the   officers    of               outstanding  merit and ability are  only  held               eligible  for consideration by  the  Selection               Committee  unlike in case of  S.C.S.  Officers               who me to be graded outstanding, ’very  good’,               ’good’  and  ’unfit’ and even  an  officer  in               ’good’   category   can   be   appointed    to               I.A.S..........  The respondent Nos. 4  to  10               have   been  found  to  be  the  officers   of               outstanding ability and merit by the Selection               Committee  and, therefore, the averments  made               by the applicants in this paragraph that these               officers  arc  less meritorious is  their  own

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             presumption........ it is only in these special               circumstances   when  such   officers   become               available,  that recruitment to the  IA.S.  is               made by the method of selection.  Appointments               have been made to the I.A.S. under the  I.A.S.               (Appointment  by Selection) Regulations,  1956               only.  when outstanding Officers could  become               available.’ The  State  Government  in  its  written  reply  before  the Tribunal justified the recruitment under the Regulations  by stating as under:               "It is submitted that the need of the officers               having experience in the fields other than the               field   of  Revenue  Administration  is   ever               increasing  with the multiplicity  of  welfare               scheme  of Government and  Government,  there-               fore,  feels the need to utilise the  services               of  experienced and outstanding officers  from               the fields other than the S.C.S. Officers" We  are  satisfied that there were  "special  circumstances" before  the State Government to make recruitment  under  the Regulations.  In the face 576 of  clear  pleadings  on the record  the  Tribunal  was  not justified  in  holding  that there was no  material  on  the record  to  show the existence of  ’special  circumstances’. The  Tribunal was wholly unjustified in asking  the  Central Government to show the existence of "special  circumstances’ 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 "special  circumstances’.   The Central Government comes into the picture at the last  stage when  it  makes the appointment under  Regulation  3(4)  and 3(4A) of the Regulations. Learned  counsel for the respondents-Civil Service  Officers invited our attention to the proviso to Rule 9(1) read  with Rule9(3)(a)(ii)  of  the Rules and argued that in  terms  of these Rules no vacancies are made available for the  special recruits  and  as such appellant Bayas and Gurde  cannot  be offered appointments to the IAS.  The point as such was  not raised  before  the Tribunal.  We have no  material  on  the record to support the contention of the learned counsel.  On the other hand, the stand of the State Government before the Tribunal clearly shows that he vacancies were available  for the appointment of Bayas and Gurde in terms of Rule 9 of the Rules.  The relevant extract is reproduced hereunder:               "In fact, rules clearly provide that upto  15%               of  the  promotion posts can be filled  up  by               appointment   of  the  non-SCS   Officers   by               selection.   This limit has not been  exceeded               by the appointment of the Respondents Nos.4 to               8 and also if the Respondent Nos.9 and 10  are               also appointed.  Respondent Nos. 9 and 10 have               been  selected  by  the  Selection   Committee               against  the  vacancies which are  within  the               limit prescribed under Rule 9 of the  Recruit-               ment Rules." We,  therefore,  allow the appeals set  aside  the  impugned judgment of the Tribunal dated July 19, 1991 and dismiss the application of the Civil Service Officers before the Central Administration Tribunal.  No costs. CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1416  of 1993. Special leave granted.

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577 In view of the our judgment in Civil Appeal No.1414 of  1993 arising  out of Special Leave Petition (civil)  No.17028  of 1991  dated  March 23,1993 this appeal is  allowed  and  the interim order dated September 9, 1991 in O.A. No.530 of 1991 pending  before the Central Administrative Tribunal,  Bombay is quashed.  No costs. G.N.                   Appeals allowed. 578