DR. M. RAMEGOWDA V. UNION OF INDIA

WP/19913/2022

AI Insights

The case revolves around a writ petition filed by several petitioners challenging the orders and notifications related to the selection process for the Indian Administrative Service (IAS) issued by the State of Karnataka and the Karnataka Public Service Commission (KPSC). The petitioners argued that the State's actions were beyond its legislative competence as the field of IAS selection is governed by central laws and regulations. The respondents defended the new selection process as a means to enhance transparency and objectivity. The High Court of Karnataka examined the legislative framework governing the selection of IAS officers and concluded that the State's attempt to modify the selection process was not permissible under the existing laws.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 734329 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 06-01-2023
• Assessment Year: misc
• Other Referred Cases: B. Amrutha Lakshmi vs. State of Andhra Pradesh and Others, P. Mahendran and others vs. State of Karnataka and others, State of Rajasthan vs. Mohinuddin Jamal Alvi and Others, P.M Bayas vs. Union of India and others, R.S. Dass vs. Union of India and others, Noor Mohammed vs. Khurram Pasha, State of Orissa & Ors vs. Prasanna Kumar Sahoo, Y.V Rangaiah and Others vs. J. Sreenivasa Rao and Others, Guman Singh vs. State of Rajasthan and Others, K.K Parmar & Others vs. H.C of Gujrat Through Registrar and others, Shri Parvez Qadir vs. Union of India
• Laws Referred To: Administrative Tribunals Act, 1985, Indian Administrative Service (Appointment by Selection) Regulations, 1997, All India Services Act, 1951, Indian Administrative Service (Recruitment) Rules, 1954, Indian Administrative Service (Appointment by Promotion) Regulations, 1955, Karnataka Public Service Commission (Conduct of Business and Additional Functions) Act, 1959
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: B PRAMOD; DHYAN CHINNAPPA; H R SHOWRI; K M PRAKASH; VISHNU BHAT
• Assessee Lawyers: RAVIVARMA KUMAR; VIJAYA RAGHAVA
• Keywords: Administrative Tribunal; Certiorari; Certiorari; Legislative Competence; Quashing; Selection process; Writ petition; Executive Order; Service Conditions
• Section: 6; 5; 3; 19; 4; 16; 312; 320

Judgement Text

" - 1 - WP No. 19913 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF JANUARY, 2023 PRESENT THE HON'BLE MR. JUSTICE G.NARENDAR AND THE HON'BLE MR. JUSTICE P.N.DESAI WRIT PETITION NO. 19913 OF 2022 (S-CAT) BETWEEN 1. DR. M. RAMEGOWDA, S/O LATE MUNISHAMAPPA, AGED ABOUT 54 YEARS, WORKING AS PRIVATE SECRETARY TO EXCISE MINISTER, VIDHANA SOUDHA, BANGALORE-560001. 2. SRI PRABHAKAR H.G., S/O GOPAL GOWDA, AGED ABOUT 43 YEARS, WORKING AS PRIVATE SECRETARY TO SERICULTURE YOUTH EMPOWERMENT AND SPORTS MINISTER, VIDHANA SOUDHA, BANGALORE-560001. 3. SRI SHIVAPUTRA, S/O LATE BABURAO, AGED ABOUT 43 YEARS, WORKING AS JOINT SECRETARY, KARNATAKA BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE BOARD, DAIRY CIRCLE, BANNERGHATTA ROAD, BANGALORE-560029. Digitally signed by NANDINI D Location: High Court of Karnataka - 2 - WP No. 19913 of 2022 4. DR. SOMANATH, S/O GURAPPA, AGED ABOUT 43 YEARS, WORKING AS INTERNAL FINANCIAL ADVISOR (IFA), PUBLIC WORKS DEPARTMENT SECRETARIAT, VIKASA SOUDHA, BANGALORE-560001. 5. DR SABEER AHMED MULLA, S/O ABDUL WAHAB MULLA, AGED ABOUT 48 YEARS, WORKING AS JOINT DIRECTOR, COMMISSIONER OFFICE, DEPARTMENT OF SOCIAL WELFARE, M S BUILDING, BANGALORE-560001. 6. SMT. URMILA B, D/O SHIVARAMA V, AGED ABOUT 49 YEARS, DIRECTOR, (SCSP)/(TSP) CELL, DEPARTMENT OF SOCIAL WELFARE, KALYANA KENDRA, YAVANIKA, NRUPATHUNGA ROAD, BANGALORE-560001. 7. DR H NATARAJU, S/O HANUMANTHAIAH, AGED ABOUT 45 YEARS, WORKING AS MANAGING DIRECTOR, DR. BABU JAGAJEEVAN RAM LEATHER INDUSTRY DEVELOPMENT CORPORATION, VASANTH NAGAR, BANGALORE-560052. 8. PRADEEP B.S S/O SHARANAPPA A.K AGED ABOUT 45 YEARS, - 3 - WP No. 19913 of 2022 WORKING AS JOINT DIRECTOR, BACKWARD CLASSES WELFARE DEPARTMENT, D.DEVARAJ URS BHAVAN, VASANTH NAGAR, BANGALORE-560052. ...PETITIONERS (BY PROF. RAVIVARMA KUMAR, SR. ADV. FOR SRI. VIJAYA RAGHAVA SARATHY H M, ADV.) AND 1. UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PERSONNEL AND TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, NORTH BLOCK, CENTRAL SECRETARIAT, SARDAR PATEL BHAVAN, PARLIAMENT STREET, SANSAD MARG, NEW DELHI-110001. 2. THE STATE OF KARNATAKA, REPRESENTED BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, BANGALORE-560001. 3. THE STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, VIDHANA SOUDHA, BANGALORE-560001. - 4 - WP No. 19913 of 2022 4. KARNATAKA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, UDYOG SOUDHA, BANGALORE-560001. 5. UNION PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, DHOLPUR HOUSE, SHAHAJAHAN ROAD, DELHI-110069. …RESPONDENTS (BY SRI. B PRAMOD, CGC FOR R1, SRI. DHYAN CHINNAPPA, AAG A/W SRI. H.R.SHOWRI, AGA FOR R2 & R3, SRI. K.M.PRAKASH, ADV. FOR R4, SRI. VISHNU BHAT, ADV. FOR R5.) THIS WRIT PETITION IS FILED UNDER SECTION 19 OF THE ADMINISTRATIVE TRIBUNALS ACT, 1985 PRAYING TO ISSUE A APPROPRIATE WRIT ORDER OF DIRECTION IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL IN ORIGINAL APPLICATION No-170/395/2022 DATED 23.09.2022 (ANNEXURE-A) AND CONSEQUENTLY ALLOW THE ORIGINAL APPLICATION BY SET ASIDING THE IMPUGNED ORDER DATED 10.02.2022 BEARING No. e-DPAR 203 SAS 2021 PASSED BY THE RESPONDENT No-3 (ANNEXURE-A5 PLACED AT ANNEXURE-B) AND IMPUGNED NOTIFICATION DATED: 07.09.2022 BEARING No.PSC 647E(1)/2022-23 ISSUED BY THE RESPONDENT No-4 (ANNEXURE-A6 PLACED AT ANNEXURE-B). THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, G.NARENDAR J., MADE THE FOLLOWING: - 5 - WP No. 19913 of 2022 ORDER Heard the learned senior counsel Prof. Ravivarma Kumar along with the learned counsel Sri. Vijaya Raghava Sarathy H.M. on behalf of the petitioners and the learned senior counsel and Additional Advocate General Sri Dhyan Chinnappa along with the learned Additional Government Advocate Sri. H.R. Showri on behalf of respondent No.2 and 3 and Sri B. Pramod, learned Central Government Counsel for respondent No.1 and the learned counsel Sri K.M. Prakash for respondent No.4 and the learned counsel Sri Vishnu Bhat on behalf of respondent No.5. 2. The instant writ petition arises out of an order passed by the Central Administrative Tribunal, Bengaluru Bench, whereby, the Tribunal was pleased to reject O.A. No.170/00395/2022 by its order dated 27.09.2022, which is impugned herein. By the said order, the Tribunal was pleased to negative the challenge raised by the petitioners to the proceedings of the 3rd respondent bearing - 6 - WP No. 19913 of 2022 No.e-DPAR 203 SAS 2021 dated 10.02.2022 and also the challenge to the notification bearing No. PSC 647 E (1)/2022-23 dated 07.09.2022 issued by the 4th respondent. A further direction was also sought to the 2nd respondent and the 3rd respondent to continue the selection process pursuant to Note dated 21.08.2021 and thereby consider the case of the petitioners for appointment by selection to the post of Indian Administrative Service under Indian Administrative Service (Appointment by Selection) Regulations, 1997. 3. The Tribunal has concised the ground of challenge in paragraph 31 and has answered the same in paragraphs 32, 33 and 34. The findings rendered by the Tribunal to reject the O.A. are as follows:- “(i) Regulation 4 exclusively entrust the State Government with the responsibility to initially shortlist suitable names of Officers of Outstanding merit and ability. - 7 - WP No. 19913 of 2022 (ii) That the Regulations do not prescribe any particular mechanism that is to be followed by the State Government, while assessing the relative merit and ability of the officers to be short listed. Hence, the State Government is free to adopt any suitable and reasonable mechanism.” 4. In paragraph 33 it is reasoned that the State Government considers the new mechanism has been more transparent and objective method for short listing the names. In paragraph 34, in view of the above reasoning, it is concluded that it is within the legislative competence of the State to prescribe a new methodology with the purpose of selection and consequently rejected the contention that prescribing a new methodology is beyond the legislative competence of the State. While doing so, the Tribunal has failed to analyze and examine whether the State Public Service Commission is within its competence to hold a selection exam which is not for a selection to a post in the State services. - 8 - WP No. 19913 of 2022 5. At the outset, the approach of the CAT itself is a little perplexing. It appears the application has been filed on 19.09.2022 and has been disposed of by the impugned order dated 23.09.2022. In a matter where issue of legislative competence of the State to legislate by way of an Executive Order, has been raised, the Tribunal has proceeded to pass orders even without awaiting objections. A reading of the order also does not disclose, as to whether the respondents were heard or not? Apparently, there are no precedents, laying down guidelines in similar circumstances or settling the law in respect of the issues raised before it. 6. Statement of objections are preferred by the respondent before this Court and is verified by Under Secretary to Government in the Office of the 3rd respondent. No objections have been preferred by either the Union (R.1) or the State Public Service Commission (R.4) or the Union Public Service Commission (R.5). - 9 - WP No. 19913 of 2022 7(i) Paragraph 1 of the Statement of Objections deals with the order impugned in the writ petition. (ii) Paragraph 2 deals with the relief sought. (iii) Paragraphs 3, 4, 5, 6 and 7 deal with the basic premise on which the challenge is premised. (iv) Paragraphs 9, 10, 11 and 12 deal with the various provisions of the Central Enactment. (v) Paragraphs 13, 14, 15 and 16 deal with the methodology associated with short listing candidates to be sponsored to the select committee and thereafter, to the Commission and thereafter, to the first respondent for selecting and appointing the officers of the State to the Union Services. (vi) Paragraphs 17 and 18 again deal with the provisions Under Central Enactment. (vii) Paragraph 19 deals with the Notification issued by the KPSC which is also impugned. (viii) Paragraph 20 the respondent claims that the State Government is entrusted with the responsibility of - 10 - WP No. 19913 of 2022 short listing suitable names in the ratio of 5 times the notified vacancies. It further elaborates that the provisions do not prescribe any mechanism to be followed by the State Government and hence, it is open to the State Government to adopt any suitable or reasonable mechanism. Further reliance is placed on the observations of the Hon'ble Apex Court rendered in Para 17 in B. Amrutha Lakshmi vs. State of Andhra Pradesh and Others1. (ix) In Paragraph 21, it is asserted that the methodology adopted as a transparent one. That the said mechanism enables the State to preliminarily assess the merit and ability of eligible candidates and the methodology being one prescribed under the existing Regulations it is within the competence of the State. The adoption of the new mechanism does not imply nor amounts to any amendment to the Central Regulations, 1997. 1 (2013) 16 SCC 440 - 11 - WP No. 19913 of 2022 (x) In Paragraph 23, it is submitted that if any selection process, for any particular year is not completed by the 31st of December, the vacancies would be carried forward to the subsequent year. (xi) In Paragraphs 24, 25 and 26, the number of vacancies and the year to which they pertain and how they arose, are detailed. (xii) In Paragraph 29, it is contended that the reason for the present impugned legislation is the litigations initiated in the previous year. (xiii) In Paragraph 30, it is contended that the selection list 2021 came to be processed after the process of selection list 2020 came to an end. (xiv) In Paragraph 32, it is contended that it is the exclusive prerogative of the State to short list the names of suitable and eligible officers. (xv) In Paragraph 33, it is contended that 1997 regulations is enacted in lieu of powers vested under 8(2) of the Recruitment Rules, 1954. That the Recruitment - 12 - WP No. 19913 of 2022 Rules, 1954 is enacted in lieu of the power vested under the All India Services Act, 1951. It is further submitted that as per Regulation 5 of the 1997 Regulations, the UPSC is the competent authority to select the final candidates. (xvi) In Paragraph 34, it is contended that Regulation 4 does not prescribe any specific mechanism for the purpose of short listing. Hence, the present methodology is adopted to provide a level playing field to all the eligible candidates. (xvii) In Paragraph 35, it is contended that the impugned order of the State does not in any way interfere with the further process of selection by the Committee of the UPSC under Rule 5 of 1997 Regulations which, it is stated provides for method of selection by a process of interview and Assessment of Performance Appraisal Report in short Annual Confidential Report maintained by the State Government. Annexures R1 to R5 are inter departmental communications between the State and the - 13 - WP No. 19913 of 2022 Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, UPSC. The communication pertains to vacancy arising in the relevant years. Relevant Provisions are extracted below for the sake of convenience and brevity. I. Article 312 of the Constitution of India: “312. All-India Services. - (1) Notwithstanding anything in [Chapter VI of Part VI or Part XI], if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more all-India services [(including an all-India judicial service)] common to the Union and the States, and, subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service. (2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article. - 14 - WP No. 19913 of 2022 (3) The all-India judicial service referred to in clause (1) shall not include any post inferior to that of a district judge as defined in article 236.] [(4) The law providing for the creation of the all- India judicial service aforesaid may contain such provisions for the amendment of Chapter VI of Part VI as may be necessary for giving effect to the provisions of that law and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368.]” II. Clause (1) & (3) of Article 320 of the Constitution of India & sub-clause (a) (b), proviso to Clause (3): “320. Functions of Public Service Commissions.- (1) It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively. (2) x x x (3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted- (a) on all matters relating to methods of recruitment to civil services and for civil posts; (b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of - 15 - WP No. 19913 of 2022 candidates for such appointments, promotions or transfers; Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor [***], as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.” III. Entry 70 of List I-Union List of Seventh Schedule of the Constitution:- “70. Union Public Services; All-India Services; Union Public Service Commission.” IV. Section 3 and sub-section (1A) of the All India Services Act, 1951. “3. Regulation of recruitment and conditions of service.-(1) The Central Government may, after consultation with the Governments of the States concerned, [including the State of Jammu and Kashmir [and by notification in the Official Gazette]] make rules for the regulation of recruitment, and the conditions of service of persons appointed to an All-India Service. [(1A) The power to make rules conferred by this section shall include the power to give retrospective effect - 16 - WP No. 19913 of 2022 from a date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable.]” V. The Indian Administrative Service (Recruitment) Rules, 1954: Rule – 2(a): “2. Definitions- In these rules, unless the context otherwise requires,- (a) “Commission” means the Union Public Service Commission;” Rule 4(1): “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) Omitted. (b) By promotion of a [substantive] member of a State Civil Service; [(c) 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 a State Civil Service.]” - 17 - WP No. 19913 of 2022 Clause (a) of sub-rule (2) of Rule 4: “4(2) Subject to the provisions of these rules, (a) the method or methods of recruitment to be adopted for the purpose of filling up any particular vacancy or vacancies as may be required to be filled during any particular period of recruitment, shall be determined by the Central Government in consultation with the Commission and the State Government concerned;” Sub-rule (3) of Rule 4, “4(3) Notwithstanding anything contained in sub- rule (1), if in the opinion of the Central Government the exigencies of the service so require, the Central Government may, after consultation with the State Government and the Commission, adopt such methods of recruitment to the Service other than those specified in the said sub-rule, as it may by regulations made in this behalf prescribe.” Rule 7, 7(1) & 7(2): “7. Recruitment by competitive examination. 7(1) A competitive examination for recruitment to the Service shall be held at such intervals as the Central Government may, in consultation - 18 - WP No. 19913 of 2022 with the Commission, from time to time, determine. 7(2) The examination shall be conducted by the Commission in accordance with such regulations as the Central Government may from time to time make in consultation with the Commission and State Governments.” Sub-rule (2) of Rule 8: “8. Recruitment by promotion or selection for appointment to State and Joint Cadre:- (1) x x x x x 8(2) The Central Government may, in special circumstances and on the recommendation of the 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 Government 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 of that State [but who holds a gazetted post in a substantive capacity].” (emphasis supplied) - 19 - WP No. 19913 of 2022 VI. Sub-rules (4) and (5) of Rule 5 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955. “5(4) The Selection Committee shall classify the eligible officers as ‘Outstanding’, ‘Very Good’, ‘Good’ or ‘Unfit’, as the case may be, on an overall relative assessment of their Service records. 5(5) The list shall be prepared by including the required number of names, first from amongst the officers finally classified as ‘Outstanding’ then from amongst those similarly classified as ‘Very Good’ and thereafter from amongst those similarly classified as ‘Good’ and the order of names inter-se within each category shall be in the order of their seniority in the State Civil Service.” VII. Indian Administrative Service (Appointment by Selection) Regulations, 1997. Regulations 2(a),(b),(c) & (d), 4, 5 and 6: “2. Definitions :- (i) In these regulations unless the context otherwise requires: a. “Committee” means the Committee as constituted under regulation 3 of the Indian Administrative Service (Appointment by Promotion) Regulations 1955; - 20 - WP No. 19913 of 2022 b. “Promotion Regulations” means the Indian Administrative Service (Appointment by Promotion) Regulations 1955; c. “Recruitment Rules” means the Indian Administrative Service (Recruitment) Rules 1954; and d. Words and expressions used herein and not defined but defined in the Indian Administrative Service (Recruitment) Rules 1954 and Indian Administrative Service (Appointment by Promotion) Regulations 1955 shall have the meanings respectively assigned to them in those Rules and Regulations. 4. State Government to send proposals for consideration of the Committee :- 1. The State Government shall consider the case of a person not belonging to the State Civil Service but serving in connection with the affairs of the State who, i. is of outstanding merit and ability; and ii. holds a Gazetted post in a substantive capacity; and iii. has completed not less than 8 years of continuous service under the State Government on the first day of January of the year in which his case is being considered in any post which has been declared equivalent to the post of Deputy Collector in the - 21 - WP No. 19913 of 2022 State Civil Service and propose the person for consideration of the Committee. The number of persons proposed for consideration of the Committee shall not exceed five times the number of vacancies proposed to be filled during the year: Provided that the State Government shall not consider the case of a person who has attained the age of 56 years on the first day of January of the year in which the decision is taken to propose the names for the consideration of the Committee. Provided also that the State Government shall not consider the case of a person who, having been included in an earlier Select List, has not been appointed by the Central Government in accordance with the provisions of regulation 9 of these regulations. 5. Preparation of a list of suitable officers by the Committee:- The Committee shall meet every year to consider the proposal of the State Government made under regulation 4 and recommend the names of the persons, not exceeding the number of vacancies to be filled under regulation 3, for appointment to the service. The suitability of a person for appointment to the service shall be determined by scrutiny of service records and personal interview:- - 22 - WP No. 19913 of 2022 Provided that no meeting of the Committee shall be held and no list for the year in question shall be prepared, when a. there are no substantive vacancies as on the first day of January of the year in the posts available for recruitment of persons under sub-rule (2) to rule 8 read with proviso to sub-rule (1) to rule 9 of the recruitment rules; or b. the Central Government in consultation with the State Government decides that no recruitment shall be made during the year to the substantive vacancies as on the first day of January of the year in the posts available for recruitment under sub-rule (2) to rule 8 read with proviso to sub-rule (1) to rule 9 of the recruitment rules; or c. the Commission, either on its own or on a proposal made by the Central Government or the State Government, considers that it is not practicable to hold a meeting of the Committee during the year, in the facts and circumstances of each case. Explanation: In case of Joint Cadres, a separate Select List shall be prepared in respect of each constituent having a State Civil Service. 6. Consultation with the Commission :- 1. The recommendations of the Committee made under regulation 5 shall be placed before the State Government concerned which shall forward the same to the Commission for approval along with - 23 - WP No. 19913 of 2022 i. the confidential records of the officer concerned; and ii. the observations, if any, of the State Government and the recommendations of the Committee. 2. The State Government shall also forward the recommendations of the Committee and its observations, if any, to the Central Government. The Central Government shall forward their observations, if any, on the recommendations of the Committee, to the Commission.” VIII. THE [KARNATAKA] PUBLIC SERVICE COMMISSION (CONDUCT OF BUSINESS AND ADDITIONAL FUNCTIONS) ACT, 1959. Sub-section (1) & (2) of Section 16: “CHAPTER III ADDITIONAL FUNCTIONS 16. Conduct of Service Examinations.- [(1)] Such examinations which persons serving in connection with the affairs of the State are required to pass under the conditions of recruitment or service applicable to them and which may be notified by Government under this section, and such other examinations as may be notified by Government from time to time shall, with effect from such date as the Government may appoint, be conducted by the Commission in accordance with such rules as may be prescribed. - 24 - WP No. 19913 of 2022 [(2)] Where persons in the services of any local authority or other body corporate constituted by law, are required to pass under the conditions of recruitment or service applicable to them any of the service examinations notified by the Government under sub-section (1), the Government may, in consultation with the Commission by general order declare that the said persons shall be eligible to appear for the said service examinations and thereupon the said persons may appear for the said service examinations, subject to such conditions as may be prescribed. Explanation.-For purposes of this sub-section, the expression ‘local authority’ shall have the meaning assigned to it in sub-section (3) of section 17.]” IX. The Karnataka Civil Services (Performance Reports) Rules, 2000: Sub-rules (1), (2) & (3) of Rule 3 and Sub-rule (5) of Rule 4. “3. Maintenance and custody of Performance Report file.-(1) A Performance Report file shall be maintained in respect of every Government servant. (2) The Performance Report file shall contain the following documents, namely.- (a) Confidential Reports and Performance Reports of the Government servant written prior to the - 25 - WP No. 19913 of 2022 commencement of these rules and the Performance Reports of the Government Servant [recorded electronically in respect of Group ‘A’ officers and physically [or electronically in respect of such category of Group B and C officials as specified by the Government] under these rules]; (b) Records of letter of appreciation, award, reward or medals, if any, awarded to the Government servant; Explanation.- For the purpose of this clause “Letter of Appreciation, Award, Reward or Medal” means that which is issued.- (i) by the Government or by a Secretary to Government or a Head of Department, as the case may be, to a Government servant; (ii) by a Board or a Corporation or a Company or a Committee or a Local authority or any Non- Governmental Organisation and which in the opinion of the Appointing Authority, deserves to be placed in the Performance Report file; (c) Records of any recommendation or order expressing displeasure against the Government servant; (d) Copy of the order passed under Rule 10; - 26 - WP No. 19913 of 2022 (e) Copy of orders imposing any of the penalties in a disciplinary proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 on the Government servant; (f) Record of any books, articles and other publications brought out by the Government servant or for the publication of which he may be responsible, which has relevance to the civil services, administration or public service. (3) The Appointing Authority or such other authority as may be specified by the Appointing Authority in this behalf shall be the custodian of the Performance Report file.” “4. Initiation and recording of Performance Report.- (1) xxx (2) xxx (3) xxx (4) xxx (5) In respect of Government servants whose performance reports are required to be recorded electronically under sub-rule (1), the process of recording such entries shall be initiated and concluded in accordance with provisions specified in the table.” X. Union Public Service Commission All India Services Branch - 27 - WP No. 19913 of 2022 Selection procedure guidelines issued by the UPSC. CONTENTIONS ON BEHALF OF THE PETITIONERS: 8. The learned senior counsel would contend that the process of selection of candidates from the Non-State Civil Services and appointment to the IAS, is a field that is completely occupied by Parliamentary and Central Legislation and it is not open for the State to exercise its executive power and legislate in any manner whatsoever. That the impugned orders in exercise of the executive power is in the teeth of the Indian Administrative Services Act, legislated under Article 312 & Entry 70 of List I, of the Constitution of India. In that view, he would contend that the State has no authority to subscribe any new criteria for the purpose of assessing the merit and ability of the candidates in contention. That selection and appointment of candidates to the IAS being an occupied field the State is precluded from exercising its executive power in the said field and the State is required to act - 28 - WP No. 19913 of 2022 within the four corners of the statutes under which it has been delegated certain functions. Elaborating further, he would state that Article 312 makes it clear that notwithstanding anything in Chapter VI of Part 6, the Parliament alone is competent to regulate the recruitment to IAS. That the All India Services Act of 1951 and the rules framed there under, completely encompass the appointment to IAS, either by way of competitive examination, promotion or by selection of officers in the Non-SCS. That competitive examinations, as a method of recruitment is prescribed only to fresh recruits and not to those who have already been recruited and discharging duties in the State service, and by the present impugned executive order an attempt is being made to regulate the same and the same is impermissible. 9. The learned senior counsel taking the Court through the provisions of IAS (Appointment by Selection) 1997, would contend, that the provisions cast a limited - 29 - WP No. 19913 of 2022 function on the State Government that is of sending proposals for consideration by the State Selection Committee (SSC). He would take the Court through Regulation 4 and would contend that the State is required to propose such of those candidates who possess outstanding merit and ability, holds a gazetted post in a substantive capacity, has completed not less than 8 years of continuous service and in a post which has been declared equivalent to the post of Deputy Collector in the SCS and the proposal should be forwarded to the Committee and that the number of persons proposed shall not exceed 5 times the number of vacancies proposed to be filled during the year. That State Government shall not consider the case of a person who has attained 56 years. That the State Government shall not consider the case of a person who has been included in the select list but has not been appointed by the Central Government. - 30 - WP No. 19913 of 2022 10. The learned senior counsel would take the Court through Regulation 5 of the 1997 regulations pertaining to preparation of list of suitable officers by the Committee and Regulation 6, which pertains to consultation with the Commission. 11. The learned senior counsel would contend that the Regulation 5 and 6 are a complete answer to the theory propounded by the State and clearly demonstrates the role envisaged by the regulations for the State. In that view, he would contend that no power or discretion is vested in the State to prescribe any new qualification, eligibility or a criteria that which is not already provided under the Rules. 12. He would take the Court through the definition of Committee under the 1997 regulations and would point out that the Committee is none other than the Committee constituted under Regulation 3 of the IAS (Appointment by Promotion) Regulation, 1955. - 31 - WP No. 19913 of 2022 13. The learned senior counsel would contend that the two other methods of recruitment are exclusively designed for in-service candidates and is on the basis of proven outstanding merit and ability and not a newly created phenomenon of competitive or qualifying examination. Elaborating further, he would contend that on the day the selection process commences the candidates must already have acquired the credentials as an outstanding officer and neither the recruitment rules nor the regulations envisage anything to the contrary and hence, he would submit that the prescribed method under the impugned Government orders is a fraud on the power of the process as it has no reference with the past service of the officer and the officers cannot be treated as fresh recruits. The Petitioners have placed reliance on the following rulings:- - 32 - WP No. 19913 of 2022 SL NO. PARTICULARS PAGE NO 1. B.Amrutha Lakshmi vs. the of Andhra Pradesh and others, Reported in (2013) 16 SCC 440 (Para 19 & 20) 1-11 2. P. Mahendran and others vs. State of Karnataka and others in (1990) 1 SCC 411 (Para 5) 12-22 3. State of Rajasthan vs. Mohinuddin Jamal Alvi and Others, Reported in (2016) 12 SCC 608 (Para 4 & 5) 23-27 4. P.M Bayas vs. Union of India and others, Reported in (1993) 3 SCC 319 (Para 9 & 11) 28-35 5. R.S. Dass vs. Union of India and others, Reported in 1986 (Supp) SCC 617 (Para 29 & 30) 36-65 6. Noor Mohammed vs. Khurram Pasha, Reported in (2022) 9 SCC 32 (Para 14, 15 & 16) 66-73 7. State of Orissa & Ors vs. Prasanna Kumar Sahoo, Reported in (2007) 15 SCC 129 (Para 12) 74-80 8. Y.V Rangaiah and Others vs. J. Sreenivasa Rao and Others, Reported in (1983) 3 SCC 284 (Para 19) 81-86 9. Guman Singh vs. State of Rajasthan and Others, reported in 1971 (2) SCC 452 (Para 35) 87-113 10. K.K Parmar & Others vs. H.C of Gujrat Through Registrar and others, Reported in (2006) 5 SCC 789 (Para 27 & 28) 114-127 11. Shri Parvez Qadir vs. Union of India, Reported in (1975) 4 SCC 318 (Para 17-20) 128-141 - 33 - WP No. 19913 of 2022 14. The learned Senior counsel would contend that it is not open for the State Government to stipulate any new criterion, that too, after determination of the vacancies. That the credentials required for selections as per the Act and Regulations are the pre-existing credentials and not the credentials that are to be acquired afresh. That the words 'outstanding merit' is a clear pointer in this regard. That the outstanding merit and ability is over a fixed period and not at the discretion of the sponsoring authority i.e., the State Government. That the Act and Regulations are a self contained Code and do not leave any scope for the State to exercise any option. The eligibility criterion, the manner in which it is to be assessed, the disqualification etc., are all provided by the Act, Regulations and the Recruitment Rules. 15. It is further contended that the respondent State, itself being a delegate, it has no authority to sub- delegate to the KPSC. - 34 - WP No. 19913 of 2022 16. It is contended that the proposed exercise assigned to the KPSC is also in the teeth of Article 320 of the Constitution of India. That the KPSC is entitled to conduct examination to the posts in the services of the State. That the IAS service not being a service under the State, the KPSC has no authority in law to hold the exam. That the role and responsibilities of the State Public Service Commissions are clearly demarcated in the Article 320. 17. The learned Senior counsel would brush aside the contentions of the learned AAG that the Karnataka Public Service Commission (Conduct of Business and Additional Functions) Act, 1959, saves and invests authority in the KPSC to conduct the role assigned by the State under the executive orders. He would invite the attention of the Court to Article 321 and would submit that the same is a complete answer. He would also take the Court through Section 16 of Chapter III of the KPSC Act, - 35 - WP No. 19913 of 2022 1959 relating to additional functions invested in the commission. Elaborating further, he would contend that any such extension of function can only be by an Act of the State legislature and not by an executive order. Secondly, Article 321 does not empower the State to encroach upon the field occupied by the Act, Rules and Regulations framed by the Parliament and the Centre and that the power to extend functions can only be in respect of the services of the State, Local Authority or other Body Corporate and the IAS post is neither a service under the State or Local Authority or a Body Corporate and is only governed by UPSC. 18. With regard to merit, the learned Senior counsel would contend that the concept of merit has been gone into and defined by various judgments. He would contend that marks alone do not determine the merit of a person and that merit is an enumeration of a person's various qualities and it reflects the attributes of a person. - 36 - WP No. 19913 of 2022 19. It is contended that the KPSC cannot be consulted in any manner in the matter of recruitment for IAS. It is the UPSC which has been given a major role in appointment of candidates to IAS by selection. That Article 320 which lays down the function of a State Public Service Commission has conferred the State Public Service Commission to conduct examination for appointment to services of the State. Since IAS is not a service under the State, such an examination cannot be directed to be conducted by the KPSC. Article 321 which provides power to extend powers to Public Service Commission also does not empower to issue the impugned Government Order because; That any such extension of a function can only be made by a Legislature of the State and not by an executive order; That Article 321 does not empower the State to encroach upon the field occupied by the Act, the Rules and the Regulations; and that, the power to extend functions can only be in respect of services under the State, local authority or other body corporate and not IAS. - 37 - WP No. 19913 of 2022 20. In support the learned Senior Counsel would also place reliance on the case of Taylor vs. Taylor, to contend that; when the Statute provides for a thing to be done in a particular manner, then it must be done in that manner alone. All other modes of doing that thing must be deemed to have been prohibited. a. State of Rejasthan V. Mohinuddin Jald Alvi reported in (2016) 12 SCC 608 at paras 4 and 5. b. Noor Mohammed v. Khurram Pasha, reported in (2022) 9 SCC 23 at paras 14-17. c. Amrutha Lakshmi V. State of Andhra Pradesh reported in (2013) 16 SCC 440 at para 20. 21. With regard to ‘Merit’ the learned Senior Counsel would elaborate further and contend that the concept of merit is well known. Several decisions have defined merit, to laydown it is not to be judged by marks alone and that depends upon various qualities. In - 38 - WP No. 19913 of 2022 Gurman Singh – vs- State of Rajasthan reported in 1971 (2) SCC 452 the Hon’ble Supreme Court has held as follows: “Merit is a sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction in the university, his character, his integrity, devotion to work and the manner in which he discharges his official duties. Allied to this may be various other matters, or factors, such as punctuality in work, the quality and out-turn of work done by him and the manner of his dealings with his superiors and subordinate officers and the general public, his rank in the service and annual confidential report. All these and other factors may have to be taken into account in assessing the merit”. In K.K. Parmar – vs – High Court of Gujarat reported in (2006) 5 SCC 789, the Hon’ble Supreme Court has held (para 27); - 39 - WP No. 19913 of 2022 “ ‘Merit’ of a candidate is not his academic qualification but it is sum or total of various qualities it reflects the attribute of an employee. It may involve character, integrity and devotion to the duty of the employee and the manner in which an employee discharges his final duties. It would also include suitability and seniority of the candidate. ” In Pradeep Jan – vs – Union of India reported in (1984) 3 SCC 654, the Hon’ble Supre Court has held - “ ‘Merit’ cannot be measured in terms of marks alone. The heart is as such a factor as the head in assessing the social value of a member of the medical profession”. The very aspect which should be taken note of is that written statement is not a substitute for service records. Merit and ability contribute to the efficiency of administration. As early as in 1919 Sri Lestie Miller Committee determined efficiency thus: “…Efficiency, however, is not be measured solely or even mainly by academic qualifications - 40 - WP No. 19913 of 2022 and it will not be denied that there are important branches of the administration in which other qualities such a sympathy, honestly of purpose, energy and common sense go as far to make an efficient officer as literary superiority. We do not wish to suggest that the Brahmin community is deficient in these qualities, but it cannot and does not claim a greater share of them than other communities, while its superiority at present in the capacity to obtain academic distinctions can hardly be questioned.” 22. In the light of the above submissions he would contend that a written examination can never be a substitute for assessing the merit of the service rendered. Contention on behalf of the R-3 and R-4 State: 23. Per contra, the learned AAG would contend that by the impugned proceedings the State has attempted to eliminate elements of subjectivity which otherwise was pervading the selection process in the earlier years. That - 41 - WP No. 19913 of 2022 the impugned proceedings renders the selection process objective and the element of subjectivity is totally eliminated. He would contend that the impugned proceedings are well within the State's competence to legislate Rules to give effect to Regulation 4 (i) of the Regulations, 1997 and that the said legal position is no more res-integra in view of the law laid down by the apex Court in the case of B. Amrutha Lakshmi vs. State of Andhra Pradesh2, and would refer to paragraph No.19 and would contend that the Hon'ble Apex Court has clearly held \"It is for the State Government to lay down by rules as to how the outstanding merit and ability is to be assessed and over how much period\". He would contend that this is a categorical finding rendered by the Hon’ble Apex Court investing the State with the competence to legislate in respect of an occupied field. Though at first blush the contention is convincing, the succeeding contents of the paragraph and the contents preceding the 2 (2013) 16 SCC 440 - 42 - WP No. 19913 of 2022 sentence clearly indicate otherwise which we will be elaborating in the course of this order and which clearly negate the case canvassed by the State and in fact is against the right of elimination claimed by the State. 24. The learned AAG would submit that different States have different methods to make this determination and that is an undeniable fact. That the States of Gujrath and Haryana have an examination to arrive at this conclusion. That the endeavor of the State is to bring in transparency and hence, the State is competent to determine the best possible mechanism to select the most competent candidates and forward the same to the Committee. It is contended that once that the state is held to be competent then, it is a matter of Policy and it is not open for the petitioners to question the same. He would harp on the Policy requirement of the Departments to sponsor names and the express role assigned to the Minister and that this pre-condition led to allegations of - 43 - WP No. 19913 of 2022 favoritism etc. This contention need not hold us. The said pre-condition is clearly not a criterion stipulated either under the Act, Rules or the Regulation. If it was a practice that was followed, the same being without the sanction of law, has no bearing or relevance for the determination of the issue on hand. 25. He would submit that the existing practice of forwarding only four names limited the choice and prevented the best available talent from making the cut. 26. He would submit that the impugned proceedings has received response from 613 candidates. The sheer numbers is an indicator by itself and no eligible candidate would depend on the whims of any third person. 27. At this juncture, the Court queried the learned AAG as to whether all the 613 candidates possessed the eligibility criterion stipulated under the Act and Regulations to which the learned AAG had submitted to the Court that - 44 - WP No. 19913 of 2022 the information would be furnished to the Court and on the next date of hearing, a memo dated 13.12.2022 came to be filed in to the Court enclosing therewith a copy of the letter addressed by an Under Secretary to Government, DPAR addressed to the Government Advocate, which reads as under:- “Sub:- W.P.No. 19913/2022 (S-CAT) Dr. Ramegowda and others V/s. State of Karnataka and others. ***** With reference to the above subject, as discussed with the advocate, the clarification regarding to the information sought by the Hon’ble Court on 12.12.2022 is as follows: The State screening committee headed by Chief Secretary will take into consideration both the score obtained in the KPSC examination as well as the standing of the officer with respect to the Performance Appraisal Reports. On joint consideration of these parameters, the State Government will recommend names of candidates to UPSC as per guidelines.” [emphasis by this Court] 28. We do not find any answer to the query addressed by us. In fact, it clearly exposes an - 45 - WP No. 19913 of 2022 intention/effort, which clearly is prohibited by the Act, Rules and Regulation, more particularly, Regulation 5. It is apparent that the examination is sought to be introduced as a mechanism of selection by the State Selection Committee, which is clearly an intrusion into an occupied field. The manner and method of selection, the eligibility and criterion to be looked into etc. are all clearly mandated under the Regulation and this is clearly an attempt to tweak the selection criterion or in other words, the manner and method of selection to be adopted by the State Selection Committee. It is contended that after the examination is conducted, the State Screening Committee would examine the ACRs along with the CR Dossier and the additional factor would be the marks obtained in the examination. If this position is accepted, it would clearly amount to the State Selection Committee considering a criterion, which is not mandated under the Regulations. - 46 - WP No. 19913 of 2022 29. The learned AAG replying to the contentions of the petitioners would contend Regulation 5 of the Regulations, 1997 deals only with the aspect of preparing a list of suitable officers and does not involve any selection and it does not bar the State from adopting any mechanism to deal with the issue of outstanding merit and ability and the State is free to make this determination. That the examination would enable the State to choose the best amongst the candidates having outstanding merit and ability. That the Regulations only permit an assessment of service records and interview. That Regulation 6 of the Regulations, 1997 provides for a similar mechanism for the Committee to follow and that neither Regulation 5 nor Regulation 6 circumscribe the power of the State to adopt a separate mechanism. 30. That the proposition of law that when law requires particular thing to be done in a particular manner applies only to the stages involved in Regulations 5 and 6 - 47 - WP No. 19913 of 2022 and does not apply to the power of the State to adopt and introduce a new mechanism. In other words, it is contended that Regulation 4 cannot be controlled by Regulations 5 and 6 of the Regulations, 1997. 31. Insofar as the contention regarding competence of the KPSC, it is contended that Article 321 is not a bar and in fact permits the State Government to extend the functions of KPSC. That Section 16 of the KPSC Act, 1959 empowers the Government to require the KPSC to conduct an examination and Section 16 is derived as not limiting the power to the departmental exams but to all exams that the State may notify and hence, the impugned Notification is well within four corners of Article 321 read with Section 16 of the KPSC Act, 1959. That the integrity of the entire process cannot be defeated by contending that the KPSC cannot carryout the examination process. 32. That under the existing system, a pool of 20 candidates alone can be considered and there being 613 - 48 - WP No. 19913 of 2022 candidates, it would be an herculean task for the respondent - State. That the impugned order is well thought of and will serve the larger interest of the State. Reply by Petitioners: 33. In reply, the learned Senior counsel appearing on behalf of the petitioners would submit that the power to frame Rules has been vested by the Parliament in the Union Government and no power is ceded to the States under the 1951 Act. That the Union Government in exercise of the powers vested in it, has framed the Recruitment Rules of 1954 and in furtherance of the Rules, the Regulations of 1955 have been promulgated and Rule 4 of the 1954 Rules stipulates three exclusive modes of recruitment only. That the authority to exercise all the three modes of recruitment are vested in the Central Government. That the three modes are not inter- changeable and competitive examination is prescribed only for direct recruitment. That Rule 4 specifically excludes the - 49 - WP No. 19913 of 2022 method of written examination from the other two modes of appointment. That being the intent of the Rule, the question of the State attempting to tweak the same by an executive order is clearly beyond its competence and the same militates against the mandate of the 1954 Rules, which prescribes method of Recruitment Rules. That the present exercise is not in exercise of the powers conferred on the State, which is limited to forwarding proposals. That the very argument that they can chose candidates is ground enough to strike down the impugned Government Order. 34. The learned Senior counsel would contend that the observation of the Hon’ble Apex Court in Amrutha Lakshmi’s case is sought to be quoted out of context and would place reliance on the question framed in paragraph No.18 and would rely on the observations in paragraph No.19 itself to contend that the very judgment rules out - 50 - WP No. 19913 of 2022 any mechanism by the State to eliminate the candidates and there is substance in the contention. CONSIDERATION OF THE CONTENTIONS:- 35. The primary contention advanced on behalf of the petitioners is that the impugned Order and Notification is challenged on the ground of want of competence to legislate in respect of an entry in the Union List. It has been elaborately argued that the field relating to appointment of persons to the post of IAS, either by way of competitive exams, promotion or selection is a field occupied by law made by Parliament. We have examined Article 312, more particularly, Clause (2) of Article 312 and the language employed leaves no scope for any ambiguity. It declares, that the services known as the Indian Administrative Service, to be a service, deemed to have been created by the Parliament under Article 312. The declaration contained in Article 312, prohibits any interpretational exercise with the deeming provision, by - 51 - WP No. 19913 of 2022 which the pre-constitutional service is said to be or in other words, deemed to be created by the Parliament. Clause (1) throws more light on the intention of the Parliament. Clause (1) of Article 312 provides for creation of one or more All India Services common to the Union and States and in respect of such a service also, the law making power is vested in the Parliament. 36. The next provision that we proceed to examine is Entry 70 in List I (Union List of the Seventh Schedule), which places the Union Public Services, All India Services, Union Service Commission in List I, which is apparently in the exclusive domain of the Union Government. 37. Nextly, we examine Section 3 of the All India Services Act, 1951, which commences with the heading ‘Regulation of recruitment and conditions of service’. The provision vests the rule making power for regulating recruitment and conditions of services of the All India Services, in the Central Government. It only mandates a - 52 - WP No. 19913 of 2022 consultation with the States and no rule making authority is conferred on the State. This position stands further amplified by Sub-Section (1A) of Section 3 of the Act, 1951. A plain reading of Section 3 leaves no doubt that the power to regulate the recruitment to IAS has been arrogated by the Union Government to itself. 38. We now proceed to traverse the provisions of the Indian Administrative Service (Recruitment) Rules, 1954, in particular, Rule 2(a) which defines ‘Commission’ to mean the Union Public Service Commission. Rule 4(1) provides for method of recruitment i.e., by a competitive examination, by promotion of a substantive member of a State Civil Service and by selection, in special cases, from among persons, who hold in a substantive capacity, a gazetted posts in connection with the affairs of a State and who are not members of a State Civil Service. Clause (a) of Sub-Rule 2 of Rule 4 even further amplifies the position. It mandates that the method or methods of recruitment to - 53 - WP No. 19913 of 2022 be adopted for the filling up any particular vacancy or vacancies shall be determined by the Central Government. The use of the word ‘determined’ is not meaningless. The Parliament in its wisdom has authoritatively legislated the law, with the use of the words ‘shall be determined’. The provision yet again leaves no scope for any ambiguity or interpretation as the Parliament has authoritatively proclaimed the law that it shall be the sole prerogative of the Central Government to determine the method or methods of recruitment. In this connection the letter of the State Government, clarifying to the Court, is a dead give-away. It is apparent that the State intends to regulate the recruitment by imposing upon the State Selection Committee to take into consideration, the marks obtained in the alleged competitive examinations. The consideration by the State Selection Committee is under Regulation 5 and the written examination is not one of the methods stipulated under the Regulation. The State is - 54 - WP No. 19913 of 2022 attempting to achieve, “indirectly” what it cannot achieve “directly”. 39. Nextly, and even more crucial is Sub-Rule 3 of Rule 4. A plain reading of the Rule leaves no doubt in the mind of this Court that any variation to the method or methods of recruitment is yet again within the sole preserve of the Central Government. The authority, to adopt such other method or methods of recruitment, other than those stipulated in Sub-Rule 1 of Rule 4, is yet again conferred on the Central Government only. The Sub-Rule commences with a non obstinate clause and the discretion of varying or adopting another method is again the preserve of the Central Government. The Rule further mandates that such exercise is permissible only by way of Regulations made in this behalf and the method or methods shall be prescribed under the Regulations. 40. Rule 7 also provides for the role of respondent No.5 – UPSC. Sub-Rule 2 of Rule 7 lays down that the - 55 - WP No. 19913 of 2022 examination can be conducted by the Commission only in accordance with the Regulations. Thus, even the conduct of the examination, to be conducted by UPSC, is also regulated and it ought to be only in accordance with and as stipulated by the Regulations. 41. Sub Rule (2) of Rule 8 further amplifies the sphere of influence of the Central Government in ‘re’ matters relating to appointment to the IAS, be it by way of competitive examination or promotion or selection. The provision limits the role of the State to recommending names of any person of outstanding ability and merit and serving in connection with the affairs of the State but holding a gazetted post in a substantive capacity. 42. Nextly we proceed to examine sub rule (4) and sub rule (5) of Rule 5 of the IAS (Appointment by Promotion) Regulations, 1955. The sub rule (4) mandates as to how grouping of candidates is required to be done. It mandates that the selection committee shall classify - 56 - WP No. 19913 of 2022 eligible officers as “outstanding”, “very good”, “good” or “unfit” and such classification is to be based on an overall relative assessment of their service records. Sub rule (5) mandates that the list shall be prepared by including the required number of names. First from amongst the officers classified as “outstanding” then from amongst those similarly classified as “very good” and thereafter from amongst those similarly classified as “good” and it further mandates that all things remaining equal the order of interse seniority shall be the order of their order of seniority in the State Civil Service. 43. From a reading of the above, it is apparent that the selection committee, has to create groupings of officers by classifying them on the basis of the entry in the ACR i.e., outstanding, very good, good and thereafter it also provides for determination of their seniority, on the basis of the seniority enjoyed by them in the State Service. Thus, from the above it is clearly apparent that - 57 - WP No. 19913 of 2022 the manner and method of selection is well defined without there being any loose ends nor left to chance. What is apparent is that the regulations clearly mandates that all things being equal, then the selection committee is required to sponsor the name in the order of seniority that they enjoy in the State Service. This clearly belies the contention advanced by the learned AAG that no mechanism for appreciating the outstanding merit and ability and how it is to be operated is clearly set out in the above provisions. 44. We now proceed to examine the provisions of Sections 2 (a)(b)(c) and (d), 4, 5 and 6 of the IAS (Appointment by selection) Regulations, 1997. The provisions has been extracted supra for the sake of reference. Regulation 2(1)(a) defines a committee to mean the committee as constituted under Regulation 3 of the IAS (Appointment by Promotion) Regulations, 1955 and which is none other than the State Selection - 58 - WP No. 19913 of 2022 Committee. Regulation 3 in turn refers to the composition of committee as shown in column 3 of the schedule to the Regulations. It shall consist of the Chief Secretary, the senior most office of the cadre other than the Chief Secretary, head of general administration department/personnel/revenue, not below the rank of Secretary to the Government and lastly two nominees of the Government of India not below the rank of Joint Secretary. In other words the State Selection Committee comprises wholly of officers hailing from the IAS itself. Regulation 2(B) defines promotion regulations to be the IAS (Appointment by Promotion) Regulations, 1955. Regulation 2(C) defines recruitment rules to mean the IAS (Recruitment) Rules, 1954. Regulation 2(D) clarifies that the words and expressions used herein and not defined but defined under the recruitment Rules, 1954 or Regulations of 1955, shall have the meanings respectively assigned to them in those rules and regulations. In other - 59 - WP No. 19913 of 2022 words, the provisions of the 1954 Rules and 1955 Regulations pertaining to appointment by promotion are made applicable to the Selection Regulations of 1997. If that be so, then the Regulations 5 (4) & (5) are clearly attracted the process under the 1997 Regulation. 45. Nextly we proceed to examine Regulation 4, which in a way of sorts, is sought to be projected as the panacea for the alleged ill discovered by the State Government and ailing the selection process. Regulation 4 starts with the heading “State Government to send proposals for consideration of the Committee”. From a reading of the above, the role assigned by the heading to the State Government is one of “sending proposals”. Regulation 4(1) stipulates that the State Government shall consider the case of a person not belonging to the State Civil Services but serving in connection with the affairs of the State. The words employed in the provision clearly cuts at the very root of the case canvassed by the learned - 60 - WP No. 19913 of 2022 AAG, (1) that there is no prohibition to devise a new mechanism by way of a competitive examination, (2) that the statute does not mandate as to how the merit and ability of the candidate is to be assessed. Both these contentions stand nullified by the very provision itself. The provision mandates that the State Government “shall consider the case” of a person. The only inference that can be drawn by the language employed is that the consideration is of a merit that is already acquired by the candidate and not to be acquired. The words are used in the past tense. The word “case” must be understood to mean the merit and ability already demonstrated by the candidate and that apart he is to be of outstanding merit and ability and hold a gazetted post and has completed 8 years of continuous service in the post, which has been declared equivalent to the post of a Deputy Collector in the State Civil Service and propose the person for consideration by the committee. Thus, the provision is self contained. It merely authorises the State to send - 61 - WP No. 19913 of 2022 proposals and nothing more. The word “case” implies the merits and demerits as possessed by a candidate on the relevant date and what are those merits and demerits are detailed in clauses (i), (ii), (iii) and the two provisos to the Regulations. 46. In the light of the above, the contention that the State Government is entitled to do what is not prohibited cuts no ice with us. As Regulation 4, not only mandates what the State Government is required to do but also stipulates how the State Government is required to do the same. It also stipulates the cut off point by the use of the word “case” which in common parlance refers to the situation affecting or relating to a particular person or thing, which in the case on hand is relatable to the merit/merits possessed by the candidate as on the date of consideration of his candidature for sending the proposal. It is also interesting to note the distinction in the use of the word “consideration” both in the heading and - 62 - WP No. 19913 of 2022 Regulation I. In the heading the State is called upon to send proposals for consideration by the Committee. The word “consider” in 4(1) is qualified by the words “not belonging to State Civil Services” and the word has to be understood in that context. The use of the word “consider”, in our opinion does not invest the State with any entitlement to evaluate merits interse parties, but merely evaluate the merit of the candidates as prescribed in clauses (i), (ii), (iii) and 4(1) and forward their names to the committee and the two provisos prohibit the recommendation of names who fall under the two categories under the two provisos. The use of the word “consider” has apparently been misunderstood by the State as empowering it to evaluate afresh the competence of the candidates. What are the points that merit consideration and what are the disqualification are clearly mandated by the very provision and it is not open for the State, to state otherwise, as any variation in the criterion or method and manner of selection is a field that is - 63 - WP No. 19913 of 2022 occupied by Sub rule (3) of Rule 4 of the Recruitment Rules, 1954 and it cannot be gainfully argued that the State is entitled to introduce another element of suitability. The contention that seniority alone cannot be a consideration and a reliance on Amrutha Lakshmi’s case in support of this needs no great unraveling as a simple reference to Regulation 5(5) of the 1955 Regulations would suffice to answer the same. As detailed supra, Regulation 5 (5) follows Regulation 5(4) which sets out as to how the candidates are required to be grouped i.e., “outstanding”, “very good” and “good”. Regulation 5(5) states that all things remaining equal after evaluation under 5(4), then their names shall be placed in the order of seniority assigned to them in the Civil Services of the State. 47. In Amrutha Lakshmi’s case the Hon’ble Apex Court has merely said that a candidate cannot be eliminated merely on the ground of seniority. Probably it - 64 - WP No. 19913 of 2022 could be argued that a person who is junior in the order of seniority but is more meritorious as provided under 5(4) then such a candidate cannot be over looked by pressing into service Regulation 5(5). Regulation 5(5) would come into play only if all things are found to be equal after examination under Regulation 5(4). By the impugned order the State under the guise of carrying out an evaluation in terms of Regulation 4(1) has sought to introduce an additional element of suitability which is not provided under Regulation 4(1) and which definitively cannot be a consideration by the SSC, as attempted by the State (R3 & R4). 48. We are constrained to look down upon the impugned order in view of the insignificance of the role attributed to the State Government under the scheme of the Act, Rules and Regulations. The State is neither a party to the selection process nor can it author the selection process. This view of ours is fortified by - 65 - WP No. 19913 of 2022 Regulations 5 and 6. The role assigned to the State Government under Regulation 4 is very preliminary in nature as demonstrated by Regulation 5. Regulation 5 casts a mandate on the State Selection Committee which mandate is again limited to the aspect of preparing a list of suitable officers. Even the State Selection Committee, in fact does not select the candidate to be appointed to IAS but merely prepares a list of suitable candidates and place it before the State Government in the order of suitability. Regulation 6 mandates that the recommendations of the State Selection Committee made under Regulation 5 shall be placed before the State Government and which State Government “shall forward” the same to the Commission, i.e., the UPSC for approval and the same shall be accompanied by (1) the confidential records of the officers, (2) observations of the State Government and recommendations of the committee. Thus, if the role of the State Government is examined in the backdrop of the entire gamut of selection process, it is - 66 - WP No. 19913 of 2022 apparent that very little or a miniscule role is assigned to the State. This, in our view is on account of the entire field being occupied by parliamentary legislation and the rules and regulations legislated in pursuance of the power delegated by it. 49. On a cumulative appreciation of the various provisions and in the light of our consideration of the same, we have no hesitation in holding that the entire field relating to appointment to IAS by way of selection is an occupied field, occupied by central legislation and thereby we hold that the State is denuded of any competence to legislate in respect of matters arising out of the occupied field, much less to regulate the appointment by way of selection under the 1997 Regulations. 50. We are also not impressed by the bonafides. In fact our query was whether the candidates who have been permitted to take the examination are of equal merit and ability and the answer to it has let the cat out of the bag. - 67 - WP No. 19913 of 2022 The instructions placed before this Court clearly demonstrates that the attempt of the State is to impose an element of suitability or eligibility and that which is not prescribed or stipulated under Regulation 4. In other words, the respondent State has attempted to achieve indirectly what it cannot achieve directly. The settled position in law, that if the law requires an act or thing to be done in a particular manner, then such act or thing shall be performed in that particular manner or not at all, squarely applies in the instant case. If the regulation stipulates evaluation or assessment in a particular manner then such evaluation has to be carried out in that manner alone. 51. Now coming to the role of the State Public Service Commission and the role assigned to it by the State Government amazes and staggers us. The recruitment rules, more particularly Rule 7 of The Indian Administrative Service (Recruitment) Rules, 1954, clearly - 68 - WP No. 19913 of 2022 envisages a role only for the UPSC and such role is not without any rigors. Even the UPSC is permitted to hold examination for candidates to be recruited by way of competitive examinations only. But what is interesting to note is that the Union Public Service Commission is not given a free hand in the matter of holding examinations as Rule 7(2) mandates that the examination shall be conducted only in accordance with the regulations that the Central Government may make from time to time. When the Union Commission itself is permitted only a restricted right, it is inconceivable as to how the KPSC has even ventured to consent to do the same. The reliance on Section 16 of Chapter III of the Karnataka Public Service Commission (Conduct of Business and Additional Functions) Act, 1959 is a vile attempt and is in vain. Reading of Section 16 clearly obviates any detailed discussion. It enables holding of exams for persons serving in connection with the affairs of the State who are required to pass examinations under the conditions of the - 69 - WP No. 19913 of 2022 recruitment or service applicable to them and such other examination as may be notified by the Government and the same to be conducted in accordance with such rules as may be prescribed. Apparently no such rules are framed nor can be framed to enable holding of a competitive examination for selection to the IAS. In our considered opinion the reliance on the above provisions is highly misplaced and misconceived. 52. As regards the contention that time for consideration has lapsed, the said contention should not hold this Court and does not require any brainstorming in view of the position settled by a Co-ordinate Bench of this Court headed by His Lordship Justice A S Bopanna (as he then) and wherein the Co-ordinate Bench in W.P. Nos.11077/2018 & 26123/2018 (S-CAT) has held in paragraphs 18 to 21, which reads as follows:- “18. In addition, as already noticed, though the process had commenced by the State Government much earlier, the same had prolonged to the fag end of the - 70 - WP No. 19913 of 2022 year due to the judicial proceeding and the stay operating in the proceedings. Hence, the maxim “Actus curiae neminem gravabit” i.e., the act of Court shall prejudice none, will come into play. In that regard it is necessary to take note of the decision relied on by the learned Advocate General, rendered by the Hon’ble Supreme Court in the case of Rameshwar and others Vs. Jot Ram and another [(1976) 1 SCC 194] wherein it is held as hereunder: “The philosophy of the approach which commends itself to us is that a litigant who seeks justice in a perfect legal system gets it when he asks for it. But because human institutions of legal justice function slowly, and in quest of perfection, appeals and reviews at higher levels are provided for, the end product comes considerably late. But these higher Courts pronounce upon the rights of parties as the facts stood when the first Court was first approached. The delay of years flows from the infirmity of the judicial institution and this protraction of the Court machinery shall prejudice no one. Actus curiae neminem gravabit(1). Precedential support invoked by the appellant's counsel also lets him down provided we scan the fact situation in each of - 71 - WP No. 19913 of 2022 those cases and the legal propositions therein laid down.” 19. In the decision in the case of Atma Ram Mittal Vs. Ishwarf Singh Punia [(1988)4 SCC 284) relied upon by the learned Advocate General also, the Hon’ble Supreme Court has held as hereunder: “8. It is well-settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim \"actus curiae neminem gravabit\" – an act of Court shall prejudice no, man. Therefore, having regard to the time normally consumed for adjudication, the ten years’ exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within ten years and even then within that time it may not be disposed of. That will make the ten years holidays from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. - 72 - WP No. 19913 of 2022 Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else.” 20. On the above aspect, the learned Senior Counsel for the private respondents has relied on yet another decision of the Hon’ble Supreme Court in the case of Kalabharathi Advertising Vs. Hemant Vimalnath Narichania and others [(2010)9 SCC437] wherein it is held as hereunder: “16. In Ram Krishna Verma & Ors. v. State of U.P. & Ors., [(1992)2 SCC 620], this Court examined the issue while placing reliance upon its earlier judgment in Grindlays Bank Limited v. Income Tax Officer, Calcutta & Ors., AIR 1980 SC 656 and held that no person can suffer from the act of the Court and in case an interim order has been passed and the petitioner takes advantage thereof, and ultimately the petition stands dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized.. A similar view has been reiterated by this Court in Mahadeo Savlaram Shelke & Ors. v. Pune Municipal Corporation & Anr., (1995) 3 SCC 33. - 73 - WP No. 19913 of 2022 17. In South Eastern Coalfields Ltd. v. State of M.P. & Ors.,[(2003)8 SCC 648], this Court examined this issue in detail and held that no one shall suffer by an act of the Court. The factor attracting the applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the court; the test is whether an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party suffering an impoverishment which it would not have suffered but for the order of the Court and the act of such party. There is nothing wrong in the parties demanding to be placed in the same position in which they would have been had the Court not intervened by its interim order, when at the end of the proceedings, the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so. - 74 - WP No. 19913 of 2022 Any opinion to the contrary would lead to unjust if not disastrous consequences.” 21. Therefore, if all the above facts and law are taken into consideration, the petitioner cannot put forth such a casual contention to deny the legitimate expectation of the private respondents and other eligible candidates when there is no fault on their part and the process had also commenced as provided under the Regulations but was interrupted by judicial proceedings, which was also concluded with appropriate direction. Hence, irrespective of the fact whether any other party had derived benefit from the pending proceeding before the CAT in the first round, the fact remains that the interim order and the pendency had prevented the process from being completed. Hence the situation is to be salvaged by the Court itself by enabling the completion of the process. In such situation, the conclusion reached by CAT in the present proceedings through the order dated 09.02.2018 which is impugned herein is also justified and does not call for interference. However since the time framing fixed by the CAT has expired, the process shall now be complied by the petitioner within 30 days from the date of receipt of a copy of this Order.” - 75 - WP No. 19913 of 2022 53. In view of the above discussion, we pass the following:- ORDER (i) The writ petition is allowed. (ii) The order passed by the Central Administrative Tribunal in Original Application No.170/395/2022 dated 23.09.2022 is hereby quashed. (iii) Consequently, the impugned order dated 10.02.2022 bearing No.e-DPAR 203 SAS 2021 passed by respondent No.3 and impugned Notification dated 07.09.2022 bearing No.PSC647E(1)/2022-23 issued under Indian Administrative Service (Appointment by Selection) Regulations, 1997 by respondent No.4 are declared ultravires and are hereby quashed. (iv) Respondent Nos. 2 and 3 shall recommence and continue the process of forwarding the proposal to the State Selection Committee under Indian Administrative Service (Appointment by - 76 - WP No. 19913 of 2022 Selection) Regulations, 1997 and complete the exercise within a period of fifteen days from the date of receipt of certified copy of this order. (v) The Respondent - State Selection Committee is hereby directed to consider and forward the Select List to the respondent No.5 – UPSC. (vi) The respondent No.5 - UPSC is directed to expedite the selection process and forward the selected names to the Union Government. There shall be no order as to costs. Sd/- JUDGE Sd/- JUDGE dn/chs/ykl "