M.V. THIMMAIAH & ORS. v. UNION PUBLIC SERVICE COMMISSION & ORS

Citation: [2007] 13 S.C.R. 624

Court: Supreme Court of India

Bench: A.K. MATHUR, MARKANDEY KATJU

Case summary

M.V. THIMMAIAH & ORS. v. UNION PUBLIC SERVICE COMMISSION & ORS.pdf

Judgment text

M. V. THIMMAIAH&ORS. V. UNION PUBLIC SERVICE COMMISSION & ORS. DECEMBER 13, 2007 [A. K. MATHUR AND MARKANDEY KATJU, JJ. ) Service Law: Indian Administrative Service (Appointment by Promotion) Regulations, 1955; Regulations 2(l)(a), 3, 5 and 7: Promotion-Selection by promotion ofOfficers ofState Civil Service to Indian Administrative Services-Selection Committee recommending names of candidates to Central Government for consideration-Challenged by unsuccessful candidates alleging t ..

malafide, arbitrariness in selection by a Selection Committee not properly constituted-Reversedby High Court-On appeal, Held: The Court cannot sit as an appellate authority to examine recommendations of a Selection Committee except on ground of malatideslviolation a/Statutory rules-Allegation ofmalafide against Chairman/Member not substantiated-Though Divisional Commissioner, one of the members, nominated in the Selection Committee but not included in the selection process as the said post was abolished by State Government-But in the absence ofa member, " ' .. the Committee cannot be said to be notproperly constituted in terms ofprovisions under regulation 3-Tribunal wrongly set aside the selection oftwo candidates on grounds thatAnnual Confidential Report was written after lapse ofperiod oftwo years-Tribunal lost sight of the fact that the rules in connection thereofwere repealedpermitting consideration ofA. C. R.

written after the due date/prescribed time period-Moreover, a candidate should not sufferfor the lapses on the ,. part ofReporting/Reviewing Officer-Normally, Selection Committee abide by the assessment made by reporting /reviewing officer- t COMMISSION However, itcouldmake its own assessment in terms ofguideline~ issued by the Commission and also taking into consideration variousfactors relating tope1formance ofthe candidates-Thus, review ofassessment in respect of some candidates fully within the competence ofthe Committee-Hence, High Court was right in upholding the recommendations made by the Committee-Performance appraisal- Delay in writing by Reporting/Reviewing Officer-Karnataka Civil ·~ Services (Performance Reports) Rules, 1994; rr. 6, 8 & 11/Karnataka Civil Services (Performance Reports) Rules, 2000; r. 13.

StateGovernmentofKamatakaconstituted aSelection Committee to recommend candidates amongst the Non-State CivilService Officers ofGovernment ofKamataka to the Indian Administrative Service of Kamataka cadre. The Committee recommended the name of eight candidates. Theselectionwas challenged bythe unsuccessful candidates before the Central AdministrativeTribunalon grounds ofma/a. fideand ; 1 arbitrariness. The Tribunal set aside the recommendations of the Selection Committee holding that the Selection Committee without application ofmind had awarded marks to the selected candidates in discriminatory manner; and that the Selection Committee was not properly constituted as per the provisions ofRegulation 3 ofthe Indian Administrative Service(Appointmentby Promotion)Regulations, 1955. Aggrieved by the order ofthe Tribuna~ selected candidates and also Union Public Service Commission filed writ petitions before the High Court. ADivision Bench ofthe High Court held thatthe allegation of .

" ma/afide leveled againstthe Member ofthe Commission and Chairman ofSelection Committee was not well founded; and that the Selection Committeewas properly constituted and the Committee did not act in arbitrary or discriminatory mannerwhile awarding the marks to the selected candidates. Hence, the present appeals and ContemptPetition. Dismissing the appeals and also the Contempt Petition, the Court --. HELD:1. The appointment to the Indian Administrative Service from the State cadre can be made other than the State Civil Servicein case an incumbent is having outstanding merit and ability. [Para 4] [632-F] 2. 1. Th~re is no correlation ofallegation ofmalafide against the Chairman of the Selection Committee with the selection of the candidates for appointment to the Indian AdministrativeService.

It is too far fetched to connect with this case that the Member of the Committee who was given the residential site in lieu of his service rendered to the State, would necessarily favour the candidates. The short-listingwas done by the ScreeningCommittee headed by the Chief Secretaryalongwith four Secretaries ofthe Stateand therewas no ma/a fide intention in short-listing of these persons, now to think that just because a memberwas allotted some land so that necessarily hewould favour these selected candidates only is nothing but figment of imagination oftheappellants. To connecttheselection with the previous allotment ofland to Chairman, Selection Committee has hardly any connection between the two. In the selection process, hewas one ofthe Members along with others. All the Officers who were to be selected belonged to Kamataka Stateand itis notspecific thatany oftheselected -; . candidates has in any manner actively associated with the allotment of land to him.

Itis too remote to connectthe selection ofthese candidates with the allotment ofthe site to him. No connection is found that any of the selected candidates has in any manner directly or indirectly associated himselfin the allotment ofthesite in his favour. As it appears from the file which was summoned by theHigh Court that the proposal was mooted outbythe ChiefSecretaryand itwas approved by the Chief Minister. Therefore, there appears no direct or indirectconnection with theselectionofcandidates and allotmentofresidential sitein his favour. )( .. As such, the allegations are too far-fetched to renderthe entireselection invalid on the ground ofso called malafide. [Para 6) (636-G, H; 637-A-E] 2. 2. The allegation ofmalafide was also leveled against the other Member ofSelection Committee, but hewas not impleaded as a party. Therefore, the allegation ofmalafide could not be entertained by the Tribunal.

As such, the allegation ofmalafide againstthatMembercould r-not be taken into consideration and rightly so, by the High Courtas well as by the Tribunal. [Para 7] (637-F, G] COMMISSION 3. Since the post ofDivisional Commissionerwas not in existence and the same having been abolished there was no question ofincluding the Divisional Commissioner as a Member of Selection Committee speciallywhen the Government ofKamataka has already informed the Commission to amend the schedule. When the post of Divisional Commissionerwas not in existence 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 ofa Member, other than the Chairman or Member of the Commission, shall not invalidate the proceedings of the Committee if more than half the Members ofthe Committee had attended its meetings.

Therefore, this contingency has already been taken care by Regulation 3(3). As such the Selection Committeein the absence ofDivisional Commissioner, a Member, cannot be said to be not properly constituted. More so there is no prejudice caused to the appellants as out ofthe seven Members, six Members ofthe Selection Committee were therewhich is more than 50%. As such, nothing turns on this. Thus, the Selection Committeewas properly constituted. [Para8] (638-D-H; 639-A] 4. 1. The contention, that the annual confidential report in respect oftwo selected candidates werewritten after lapse ofperiod oftwo years should not have been taken into consideration by the Selection Committee, does not survive because the Kamataka Civil Services (Performance Reports) Rules, 2000 repealed the Rules of 1994 and '/- consequential amendment of Rules of 1999 was done away with.

Therefore, the reports for the years 1998-99and1999-2000 cannot be taken away and these two ACRs cannot be ignored and it has been rightly not ignored by the Selection Committee. More so, ifthe ACRS are notwritten or reviewed, then the incumbent is not responsible for it and why should he sufferon account ofthat The authoritywho is under obligation to complete the formalities havingfailed to do so till the lapse of time why the incumbent should be punished. This Court failed to -~ appreciate the submissions ofthe parties before the Tribunal and the view taken by the Tribunal also. [Para 10) [643-B, C, D, E] 4. 2. In the case ofother candidate, his confidential reports for the years 2000-2001 and 2001-2002 were notwritten in time interms ofRule 8 of the Rules of1994. Therefore, special reports were obtained, that too is also covered by the Karnataka Civil Services (Performance Reports) (Amendment) Rules.

There again the question is failure on the part ofthe reporting officer or the reviewing authority not writing the report ofthe officerfor 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 ifthe Selection Committee wants to have the up to date report ofthat incumbent. It is the established practice to call for such kind ofspecial reports. Such practice cannot be said to be unusual practice in administrative jurisprudence. In the present case, it appears that aspecial report in respect ofthe other candidatewas 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.

[Para 10) [643-G, H; 644-A-F) 4. 3. It is the selection process and what prevailed with the Committee after review ofthe annual confidential reports ofall these officers cannot be dilated in writing. When the Selection Committee sits and considers the candidature ofboth 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 ofthe Selection Committeecannot be interfered with in extraordinary jurisdiction or even by the Tribunal. How the Tribunal cansit 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 ofthe Selection Committee is not subject to appeal either before the Tribunal or by the Courts.

One has to give credit to r-· the Selection Committeefor makingtheirassessment and it is not subject to appeal. Taking the over all view ofthe ACRs ofthe candidates, one may be held to bevery good and another may be held to be good. Ifthis COMMISSION type ofinterlerenceis permitted then itwould virtually amountthat the Tribunals and the High Courts started sitting as Selection Committee or act as an appellate authority overthe selection. It is not theirdomain, it should be clearly understood, as has been clearly held by this Court in a number ofdecisions. [Para 11] (644-G, H; 645-A, B, C, D] R. S. Dass v. Union ofIndia, (1986] Supp. SCC 617; Union Public Service Commission v. Hiranyalal Dev & Ors etc. , (1988] 2 SCC 242; i· Dalpat Abasaheb Solunke & Ors. v. Dr. B. S. Mahajan & Ors. , (1990] l SCC 305; Mental Health andNeuro Sciences v. Dr. KKalyana Raman & Ors. , (1992] Supp. 2SCC 481; P. M Bayasv. Union ofIndia & Ors. , [1993] 3 SCC 319 and Anil Katiyar (Mrs. ) v.

Union ofIndia & Ors. , (1997] 1 sec 280, relied on. 4. 4. Courts normally do not sit in the court ofappeal to assess the ACRs and much less the Tribunal can be given this powerto constitute an independent Selection Committee over the statutory Selection ) i Committee. The guidelines have already been given bythe Commission as to how the ACRs to be assessed and how the markinghas to be made. These guidelines take care ofthe proper scrutiny and not only by the Selection Committee but also the views of the State Government are obtained and ultimatelythe Commissionafter scrutiny prepares thefinal 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 Governmentcanwithhold the appointment ofsome persons so mentioned in the select listfor reasons ' } recorded.

Therefore, if the assessment of ACRs in respect of two candidates should have been made as "outstanding" or ''very good" it is within the domain ofthe Selection Committee and we cannot sit in the court of appeal to assess whether one of the candidates has been rightly assessed or the other has been wrongly assessed. The overall assessment of ACRs of both the Officers were taken; one was found to be "outstanding" and the second onewas found to be ''very good". -. _, This assessmentcannotbe made subjectofCourts orTribunal's scrutiny unless actuated by malafide. [Para 16) [649-B, C, D, E] 4. 5. 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' 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 ofthe assessment is fully within the competence ofthe Selection Committee. Theview taken by the High Courtis correctthatit is always within thepowerofthe SelectionCommittee to record itsown assessment about the selection which may be at variancewith that ofthe reporting officer or reviewing officer. [Paras 17and18) [649-G, H; 650-A,B; 651-C) , '. RamanandPrasadSingh & Anr. v. Union ofIndia & Ors. Etc. , [1996) .. 4SCC 64 and UPSCv. K. Rajaiah & Ors. , [2005) 10SCC15, relied on. 4. 6.

The High Courtconsidered the case ofthe two candidateswho were eliminated by the Selection Committee and their cases were not sentto the Commission for selection to the l. A. S. cadre. The High Court found that this was the selection process by the Screening Committee headed by the ChiefSecretary 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 therewas nothing on record to show that the candidates who were short-listedwere not meritorious. The selection by expert bodies unless actuated with malice or there is apparent error should not be interfered with. [Para 19) [651-F, G,H; 652-A) 5. No merit is found in the contempt petition. [Para 21] [652-C] r , CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5883- 5891 of2007. From the final Judgment and Order dated 6. 10. 2005 ofthe High Court ofKarnataka at Bangalore in W. P. Nos.

2288-89/2005, 44488/ 2004 (S-CAT), 45687/2004 (S-CAT), 45722/2004 (S-CAT), 45754/ 2004 (S-CAT), 45805/2004 (S-CAT), 6065/2005 & 46354/2004. WITH C. A. Nos, 5894-5922 of2007 & Contempt Petition (C) No. 131 of2006. t AltafAhmed, H. S. Jois, Ravi Varma Kumar, S. B. Sanyal, P. P. Rao, V. R. Reddy, N. Nanjund Reddy, Ranjit Kumar, L. N. Rao, Rajesh Mahale, Vikas Rajipura, E. C. Vidya Sagar, R. S. Hegde, Chandra Prakash, Rahul Tyagi, J. K. Nayyar, P. P. Singh, Kiran Suri, S. N. Bhat, D. P. Chaturvedi, N. P. S. Panwan, D. K. Gupta, Dinesh Kumar Garg, V. N. Raghupathy, Binu Tamta, Sanjay R. Hegde, S. M. Chandra Sekhar, D. S. Chadha, Abhisek Gupta, Purushottam S. T. S. Sukumaran, A. Deb Kumar, K. Rajeev, Amit Kr. Chawla, Basava Prabhu S. Patil B. Subrahmanya Prasad, Narayan ) ··~ P. Kengasur, B. B. Patil for the Appearing parties. The Judgment ofthe Court was delivered by 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 ofthe High Court ofKarnataka while disposing ofa bunch ofpetitions arising out ofthe common order f- 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 ofthe Selection Committee to fill up 8vacancies belonging to the non-State Civil Service Officers ofGovernment ofKarnataka to the Indian Administrative Service (IAS) of Karnataka cadre on the ground of ma/a fides, arbitrariness and also on the ground that the Selection Committee without application ofmind had awarded marks to the selected candidates in discriminatory manner.

It was also held by the Tribunal that the Selection Committee was not properly constituted as per the provisions ofRegulation 3 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter to be referred to as the Regulations of 1955). Out ofthe bunch ofpetitions which were filed before the Kamataka 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 ofthe Selection Committee, Shri Subir Dutta, Member, U. P. S. C. against whom the allegation ofmalafide was leveled and it was upheld by the Tribunal, second one challenging the finding ofthe 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. AS. 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 ofthe KamatakaHigh Court after hearing all the parties found that the allegation ofmalafide leveled against Shri Subir Dutta, Member ofthe 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 Kamataka 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 l. 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 ofservice in the State Government on the first day ofJanuary of the year in which his case is being considered in any post which has been declared equivalent to the post ofDeputy 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 ofservice records COMMISSION [A. K. MATHUR, L) 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 ofthe Commission or ifthe Chairman fails to attend, by any other Member ofthe Commission. The Chairman or the Member of the Commission shall preside over the meetings. Regulation 3(3) further says that the absence ofa member, other than the Chairman or Member ofthe Commission, shall not invalidate the proceedings ofthe Committee ifmore than halfthe members ofthe Committee had attended the meeting. Regulation 3(3) which will have relevant bearing reads as under: "3(3) The absence of a member, other than the Chairman or Member ofthe Commission, shall not invalidate the proceedings ofthe Committee ifmore than halfthe members ofthe Committee had attended the meetings. " ). i Apart from the Member ofthe Commission, as per the schedule referred to for the State, the follov.

ing members shall also be the members ofthe Committee which includes the Chief Secretary to the Government; Additional ChiefSecretary to the Government; Principal Secretary to Government, Revenue Department; Senior most Divisional Commissioner and two nominees ofthe Central Government. This Selection Committee after scrutiny ofthe records and calling for personal interview will prepare a list and recommend the names ofthe suitable candidates to the State Government concerned, which shall forward to the Commission for its ~ approval along with the records ofall members ofthe State Civil Service included in the list; the records ofall members ofthe 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 ofthe Committee to the Central Government and the Central Government shall also forward their observations, ifany, on the recommendations ofthe Committee to the Commission.

Thereafter, the . , Commission as per Regulation 7 of 1997 shall consider the list prepared by the Committee; observations, ifany, ofthe Central Government or the State Government concerned, on the recommendations ofthe Committee and approve the list subject to the provisions of Regulation 7(2) ofthe Regulations, 1997. As per Regulation 7(2); ifthe 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 ofthe 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 bejust and proper.

That list shall be fmwarded to the Central Government and the Central Government shall make appointment on the basis ofthe list but ifthe Central Government is ofthe 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 ofthe Central Government and it need not record its reasons or communicate the same to the Commission. In this scheme ofthe Rules, the factual controversy shall be examined. 5. In the present case eight vacancies were advertised and the process ofrecruitment to these vacancies was undertaken. The State Government constituted a Screening Committee for short-listing ofthe Officers not belonging to the State Civil Service. The Committee was headed by Shri B. S. Patil, ChiefSecretary 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 ofthe Department to send a list eligible suitable officers who fulfil the aforesaid eligibility criteria In pursuance ofthis 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 ofthe service records out ofthe 79 candidates whose names were received from different Departments. Besides, the name ofone more person was sent to the Selection Committee for selection because ofthe r order passed by the Tribunal.

Thus, in total names of41 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 apetition 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 ofeight selected candidates ofthe Karnataka cadre to the I. A. S. The Tribunal was ofthe view that the Selection Committee was not properly constituted as per the provisions ofRegulation 3 ofthe Regulations, 1955 and the Tribunal further took the view that the selection ofeight candidates stood vitiated as a result of malafide on the part of Shri B. S. Patil, Chief Secretary and Shri Subir Dutta, Member of the Commission who was the Chairman ofthe 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 ofthe High Court after examining the matter found that all the grounds raised by the writ petitioners were not sustainable. - t 6. The controversy involving the selection could be divided into two parts; (i) ma/afide and (ii) the constitution ofthe Selection Committee and the selection ofthe candidates. So far as the first argument with regard to malafide is concerned, Shri Subir Dutta was not irnpleaded 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 ofthe Commission and Shri B. S.

Patil, the ChiefSecretary to the Government being one of ii the constituents ofthe Committee being interested in the candidature of Respondents 5to 12 before the Tribunal and as a result ofsuch 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 ofthe Selection Committee was appeased with the piece ofland in the city ofBangalore i. e. he was allotted site in Bangalore irrespective ofthe fact that whether he was eligible or not. It was submitted that during the process of selection and on the basis ofinterview, a site has been bartered away in favour ofShri Subir Dutta and in that the former ChiefSecretary to the Government, Shri B. S. Patil has shown a great interest.

Therefore, on account ofthis favouritism was shown to respondents 5to 12 before the Tribunal, the applicants before the Tribunal have been denied their legitimate selection and therefore, in sum total, the allegation of malafide against Shri Subir Dutta is that a site was allotted to him to appease him and secure favourable selection in respect ofRespondents 5to 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 ChiefSecretary, to the ChiefMinister making a request that a site be allotted to Shri Subir Dutta as he has attachment to the State ofKamataka and he has been helpful both for selecting Bangalore for bi-annual Air Shows and for grant ofdefence land for the purpose ofroad network in Bangalore. For that on 17. 4.

2003 the Chief Minister approved the proposal ofthe ChiefSecretary for allotment ofa 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 site was allotted to Shri Subir Dutta, he was the Defence Secretary to Government oflndia and he was not a Member ofthe Commission and he became a Member ofthe Commission only on 1. 7. 2003 and assumed charge on 4. 7. 2003 as Member ofthe Commission. The selection took place in November, 2003. Therefore, the Division Bench ofthe High Court rejected the allegation of mala fide to be far-fetched. W~ 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 M. V. THIMMAIAH v. UNION PUBLIC SERVICE Dutta who was given the residential site in lieu ofhis service rendered to i - the State of Kamataka, would necessarily favour the candidates.

The short-listing was done by the Screening Committee headed by the Chief Secretary along with four Secretaries ofthe State and there was no ma/a .. fide intention in short-listing ofthese persons, nowto think thatjustbecause ~· Shri Dutta was allotted some land so that necessf! rily he would favour these selected candidates only is nothing but figment ofimagination ofthe ·i 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 ofthe Members along with others. All the Officers who were to be selected belonged to Kamataka State and it is not specific that any ofthe selected candidates has in any manner actively associated with the allotment ofland to Shri Subir Dutta. It is too remote to connect the selection of these candidates with the allotment ofthe site to Shri Subir Dutta.

We do not find any connection that any ofthe selected candidates has in any manner directly or indirectly , I associated himselfin the allotment ofthe site in favour ofShri Subir Dutta. As it appears from the file which was summoned by the High Court that the proposal was mooted out by the ChiefSecretary and it was approved by the Chief Minister. Therefore, there appears no direct or indirect connection with the selection ofcandidates and allotment ofresidential site in favour of Shri Subir Dutta. As such, the allegations are too farfetched to render the entire selection invalid on the ground ofso called ma/afide. This is purely flight ofimagination and we strongly reject the allegation of malafide against Shri Subir Dutta, the Chairman of the ...... t Selection Committee. 7. So far as the allegation of ma/a fide against Shri B. S. Patil is concerned, he was not irnpleaded as a party. Therefore, the allegation of malafide could not be entertained by the Tribunal.

As such, the allegation ofmalafide 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 ~--t ofmalafide is very easy to be levelled and it is very difficult to substantiate it, specially in the matter ofselection or whoever is involved in the decision making process. People are prone to make such allegation but the Courts owe a duty to ~rutinize the allegation meticulously because the person who is making the allegation of animous sometimes bona fidely or sometimes malafidely 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 ofmalafide. ~·- 8.

Now, coming to the constitution ofthe Selection Committee and the selection undertaken by the Committee, so far as the constitution of the Selection Committee is concerned, one ofthe 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 ofthe post and it was requested to suitably amend the schedule as per Regulation 3 ofthe Regulations of ]) ,. 1955. Since the post ofDivisional Commissioner was not in existence ' and the same having been abolished there was no question ofincluding the Divisional Commissioner as a Member of Selection Committee specially when the Government ofKarnataka 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 ofthe 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 ofthe Commission and more than half of the members have attended the meeting, then the proceedings ofthe Committee shall not vitiate in the absence ofsuch Member. As such the Selection Committee in the absence . ,_ ofDivisional Commissioner cannot be said to be not properly constituted.

More so there is no prejudice caused to the appellants as out ofthe seven Members, six Members ofthe Selection Committee were there which is COMMISSION [AK. MATHUR, J. ] 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. Nonnally, the recommendations ofthe Selection Committee cannot be challenged except on the ground of mala jides or serious violation of the statutory Rules. The Courts cannot sit as an appellate authority to examine the recommendations ofthe Selection Committee like 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 ofthe 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 ofthis Court.

(i) AIR (2003) SC 3044 Surya Dev Rai v. Ram Chander Rai & Ors. , (ii) [1993] 3 sec 319 P. MBayas v. Union ofIndia & Ors. , (ill) [1985] 4 sec 417 Ashok Kumar Yadav & Ors. v. State ofHaryana & Ors. Etc. , (iv) [1981] 1 sec 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 ofthis Court. --+ (i) [1976] 3 sec 583 Dr. G. Sarana v. University ofLucknow & Ors. (ii) [1980] @ sec 355 Mrs. Kunda S. Kadam v. Dr. K. K. Soman & Ors. ~ t (Iii) [20021 1 sec 749 Ashok Nagar Welfare Association & Anr. v. R. K. Sharma &Ors. Learned Senior Counsel for the Commission invited our attention to the following decisions ofthis Court. (1) [1973] 2 sec 836 Union ofIndia v. Mohan Lal Capoor & Ors. (ii) [1981] 4 sec 159 Lila Dhar v. State ofRajasthan & Ors. (iii) [1985] 4 sec 417 - Ashok Kumar Yadav & Ors.

v. State ofHaryana & Ors. 'f ,. Etc. (iv) 1986 (Supp) sec 617 R. S. Dass v. Union ofIndia & Ors. etc. (v) [1987] Supp SCC 401 State ofUP. v. Rafiquddin & Ors. Etc. (vi) [1988] 2 sec 242 -+ - Union Public Service Commission v. Hiranyalal Dev & Ors. Etc. (vii) [1983] 3 sec 241 Mehmood Alam Tariq & Ors. v. State ofRajasthan & Ors. (viii)[l 990J 1 sec 305 Dalpat Abasaheb Solunke & Ors. v. Dr. B. S. Mahajan & Ors. t-- (ix) [1992] Supp. 2 sec 481 National Institute ofMental Health And Neuro Sciences v. Dr. K. Kalyana Raman & Ors. (x) [1993] 1sec17 Indian Airlines Corporation v. Capt. KC. Shukla & Ors. (xi) [1993] 3 sec 319 P. M Bayas v. Union ofIndia & Ors. Etc. (xii) [1994] Supp. 1 sec 454 C. P. Kalra v. Air India through its Managing Director, Bombay & Ors. (xiii. ) [1997] 1 sec 280 Anil Katiyar (Mrs. ) v. Union ofIndia & Ors. (xiv)[l997] 9 sec 151 All India State Bank Officers 'Federation & Ors. v. Union ofIndia & Ors. Etc. • '( (xv) [1998] 3 sec 694 Union ofIndia & Anr. v. N.

Chandrasekharan & Ors. (xvi)[2004] 6 sec 786 Inder Parkash Gupta v. State ofJ & K & Ors. (xvii) [2006] 6 sec 395 K. HSiraj v. High Court ofKera/a & Ors. • • 10. Keeping in view the ratio laid down by this Court in several decisions, now we shall examine the argument oflearned 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 ofthe Selection Committee does not sit in a court ofappeal. Courts have limited scope to interfere, either selection is actuated with ma/a. 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 ofthe 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 ofthe 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 ifthey secure 50% marks in each of the two components i. e. 25 marks in the scrutiny ofthe service records and 25 marks in the interview. The Commission has further laid down the norms for awarding marks for the scrutiny ofservice records. l0marks are awarded to a candidate ifon an assessment ofservice record he was found to be outstanding, 8 marks ifthe service record was found to be very good and 5 marks if it was 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 ofthe 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 ofthe service records or on the basis ofinterview. 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 ofthe 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 ofthe Kamataka Civil Services (Performance Reports) Rules, 1994 (hereinafter to be referred to as the "Rules of 1994") and the same could not have been looked into by the Selection Committee. Therefore, the selection ofShri Anwar Pasha was invalid. It was found by the Selection Committee that the Annual Confidential Reports ofthis Officer for these two years were not written within the time limit prescribed as required under Rule 8ofthe 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) ofRule 5 ofthe 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 ofthe 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 ofKarnataka Civil Services (Perfonnance Reports) Rules, 2000 (hereinafter to be referred to as the Rules of2000) came into force. Rule 13 ofthe Rules of2000 provided that the repeal shall not affect the previous operation ofthe 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 oftwo years should not have been taken into consideration by the Selection Committee, does not survive because the Rules of2000 repealed the Rules of 1994 and consequential amendment ofRules 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, ifthe ACRS are not written or reviewed, then the incumbent is not responsible for it and why should he suffer on account ofthat. The authority who is under obligation to complete the fonnalities having failed to do so till the lapse oftime why the incumbent should be punished. We fail to appreciate the submissions ofthe parties before the Tribunal and the view taken by the Tribunal also. It was also pointed thatthe operation ofthe Rules of 1999 was stayed by the Tribunal, -+ that may be so.

But even thereafter also when the Rules of2000 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 ifthere is failure on the part ofthe officers to discharge their duties in writing the ACRs, the incumbent should not be allowed to suffer. Therefore, we are ofopinion 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 ofShri 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 tenns ofRule 8 ofthe Rules of1994. Therefore, special reports were obtained, that too is also covered by the Kamataka Civil Services (Performance Reports) (Amendment) Rules, 1996.

Rule 11-A says that when performance reports in respect ofofficers are not available for one or more years, 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 ofthe reporting officer or the reviewing authority not writing the report ofthe 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 ifthe Selection Committee wants to have the up to date report ofthat 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 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 ofboth 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 gocid 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 ofall these officers cannot be dilated in writing. When the Selection Committee sits and considers the candidature ofboth the officers and in case ofboth the officers, looking at the 5years 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 ofthe 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 ofthe ACRs ofthe candidates, one may be held to be very good and another may be held to be good. Ifthis type ofinterference 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 number ofdecisions. Our attention was invited to a decision ofthis Court in R. S.

Dass (supra) [1986] Supp. SCC 617 wherein at paragraph 28 it was held as follows: "It is true that where merit is the sole basis ofpromotion, the power ofselection becomes wide and liable to be abused with less difficulty. But that does not justify presumption regarding arbitrary exercise ofpower. 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 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 ifit 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 ofofficers. 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 ifthe 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 ofpower. " 12. Our attention was invited to a decision ofthis Court in Union Public Service Commission v. Hiranyalal Dev & Ors etc.

, [1988] 2 SCC 242 wherein it was held as follows: '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 'very good' vis-a-vis others who were also in the field ofchoice. How to categorize in the light ofthe relevant records and what norms to apply in making the assessment are exclusively the functions ofthe 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 ~d 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 ofthe respondent vis-a-vis the official who was junior to him. The jurisdiction ofthe Supreme Court under Article 136 in this respect is, however, wider and cannot be equated with that ofthe Tribunal. " 13. Our attention was invited to a decision ofthis Court in Dalpat Abasaheb Solunke & Ors. v. Dr. B. S. Mahajan & Ors. , [1990] 1 SCC 305, wherein it was observed as follows: "It is not the function of the court to hear appeals over the decisions ofthe Selection Committees and to scrutinize the relative merits ofthe 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 ofexperts 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 the ground of the so called comparative merits ofthe candidates as assessed by the court, the High Court went wrong and exceeded itsjurisdiction. " 14. Similarly in National Institute ofMental 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 : "The function ofthe Selection Committee is neitherjudicial nor adjudicatory. It is purely administrative.

Where selection has been made by the assessment of relative merits of rival candidates determined in the course ofthe interview ofcandidates possessing the required eligibility and there is no rule or regulation brought to the notice ofthe Court requiring the Selection Committee to record reasons, the Selection Committee is under no legal obligation to record reasons in support ofits decision ofselecting one candidate in preference to another. Even the principles ofnatural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection ofa person in the absence ofstatutory requirement. " 15. Our attention was invited to a decision of this Court in P. MBayas v. Union ofIndia & 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 ofthe incumbents or not, in that context, their Lordships held as follows: "We are satisfied that 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 as 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 ofRule 8(2) ofthe Rules. As interpreted by us the scheme ofthe Rules and the Regulations clearly show that it is the State Government which has to be satisfied regarding the existence of "special circumstances". " I . 16. Our attention was invited to a decision of this Court in Anil Katiyar (Mrs.

) v. Union ofIndia & Ors. , [1997] 1 SCC 280, it was observed as follows: 'The question is whether the action ofthe DPC in grading appellant as "very good" 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"outstanding", 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 "very good" instead of"outstanding" 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 "outstanding" in the ACRs for the years 1990-91 and 1991-92. The observations ofthe Tribunal that out ofthe two "outstanding" gradings given to the appellant one "outstanding" grading does not flow from various parameters given and the reports entered therein, '· cannot, therefore, be upheld.... " Therefore, in view ofcatena of cases, Courts normally do not sit in the court of appeal to a5sess 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 ofthe proper scrutiny and not only by the Selection Committee but also the views ofthe State Government are obtained and ultimately the Commission after scrntiny prepares the final list which is sent to the Central Government for appointment. There also it is not binding on the Central Govenunent to appoint all t. 1ie persons as recommended and the Central Government can withhold the appointment of some persons so mentioned in the select list for reasons recorded. Therefore, ifthe assessment of ACRs in respect of Shri S. Dayashankar and Shri R. Ramapriya should have been made as "outstanding" or "very good" it is \\~thin the domain ofthe Selection Committee and we cannot sit in the court of appeal to assess whether Shri R. Rarnapriya has been rightly assessed or Shri Dayashankar has been wrongly assessed. The overall assessment of ACRs ofboth the Officers were taken; one was found to be "outstanding" and the second one was found to be "very good".

This assessment cannot be made subject of Courts or Tribunal's scrutiny unless actuated by malafide. 17. In the case of Shri S. B. Kolhar, Shri R. S. Phonde and Shri Puttegowda, the assessment ofthe reporting officers and the reviewing officers in the State have been found to be "outstanding". But the Selection Committee downgraded the assessment to "very good" and this has provided grounds to the Tribunal to interfere with the selection ofothers. 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' 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 ofthe assessment is fully within the competence of the Selection Committee and in this connection the observations ofthis Court may be relevant in Ramanand Prasad Singh j & Anr. v. Union ofIndia & Ors. Etc. , [1996] 4 SCC 64, which reads as under: "The Committee applies its mind to the service records and makes its own assessment ofthe service records ofthe 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 ofthe candidates.

In fact the Selection Committee makes m1 ~ overall relative assessment ofthe confidential report dossiers ofthe officers in the zone ofconsideration. Thus, it does not evaluate the confidential report dossier ofan individual in isolation. It is after this comparative assessment that the best candidates are put in the Select List.... " 18. Our attention was invited to a decision ofthis Court in UPSC v. K. Rajaiah & Ors. , [2005] 10 SCC 15 wherein it has been held as follows: ! ' "That being the legal position, the Court should not have faulted the so-called down gradation ofthe first respondent for one ofthe years. Legally speaking, the term" downgradation" is an inappropriate expression. The power to classify as "outstanding", "very good" , "good" and "unfit" 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 ofthe year 1993-94. Such classification is within the prerogative ofthe Selection Committee and no reasons need be recorded, though it is desirable that in a case ofgradation at variance with that ofthe State Government, it would be desirable to record reasons. But having regard to the nature ofthe 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's decision.

" Therefore, the view taken by the High Court is correct that it is always within the power ofthe Selection Committee to record its own assessment about the selection which may be at variance with that ofthe reporting officer or reviewing officer. '19. ltwas also pointed out that in the case ofShri N. Sriraman and Shri K. Rarnana Naik, the Selection Committee downgraded their reports from "outstanding" to "very good" 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 "very good" to "outstanding" 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 ofthe 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 ofpick 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 ofthe 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 ofthe 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 aresult ofour 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 of2006: 21.

In view ofthe order passed in the civil appeals, we find no merit in the contempt petition and the same is dismissed. S. K. S. Appeals and Contempt Petition dismissed. ~. .. ~ ' ! " I··