Holding

The Supreme Court held that the Selection Committee was properly constituted, the malafide allegations were unsubstantiated, the consideration of the ACRs was lawful under the amended rules, and courts cannot act as appellate bodies to review the Committee’s assessment, leading to dismissal of the appeals.

Summary

The Karnataka government constituted a Selection Committee to recommend non‑State Civil Service officers for promotion to the IAS. Unsuccessful candidates alleged that the Committee was improperly constituted, acted arbitrarily and with malafide intent, particularly pointing to the Chairman’s allotment of a residential site and the inclusion of a Divisional Commissioner who no longer held the post. The Central Administrative Tribunal set aside the Committee’s recommendations, but the Karnataka High Court reversed that order, finding the Committee properly constituted and the allegations of malafide unsubstantiated. On appeal, the Supreme Court held that the Committee met the requirements of Regulation 3 of the IAS (Appointment by Promotion) Regulations, 1955, that the consideration of Annual Confidential Reports written after the statutory time‑limit was permissible under the 1999 amendment and the 2000 Rules, and that courts cannot act as appellate bodies to review the Committee’s assessment absent proven malafide or statutory breach. Consequently, the Court dismissed the appeals and the accompanying contempt petition, upholding the Committee’s selections.

Issues considered

The validity of the Selection Committee’s constitution under Regulation 3 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955.
Whether allegations of malafide and arbitrariness against the Chairman/Member of the UPSC justify setting aside the Committee’s recommendations.
Whether the use of Annual Confidential Reports prepared after the prescribed two‑year period, in view of the Karnataka Civil Services (Performance Reports) Rules, 1994 and their subsequent amendment, invalidates the selection.
Whether a court or tribunal can sit as an appellate authority to scrutinise the substantive assessment of a duly constituted Selection Committee.
Whether the Central Government may withhold appointment of candidates recommended by the Committee.

Legislation cited

Indian Administrative Service (Appointment by Promotion) Regulations, 1955s. 3, s. 5, s. 7

Subjects

IAS promotionselection committeemalafidearbitrarinessannual confidential reportadministrative lawappointment by promotionKarnataka civil services rulestribunal jurisdictioncentral government appointment

Judgment

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

DECEMBER 13, 2007
B
[A.K. MATHUR AND MARKANDEY KATJU, JJ.)

Service Law:

c Indian Administrative Service (Appointment by Promotion)
Regulations, 1955; Regulations 2(l)(a), 3, 5 and 7:
Promotion-Selection by promotion of Officers of State Civil
Service to Indian Administrative Services-Selection Committee
recommending names of candidates to Central Government for
D consideration-Challenged by unsuccessful candidates alleging
malafide, arbitrariness in selection by a Selection Committee not t ..

properly constituted-Reversed by High Court-On appeal, Held: The
Court cannot sit as an appellate authority to examine
recommendations of a Selection Committee except on ground of
E 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,
F the Committee cannot be said to be not properly constituted in terms " .. '

ofprovisions under regulation 3-Tribunal wrongly set aside the
selection oftwo candidates on grounds that Annual Confidential Report
was written after lapse ofperiod oftwo years-Tribunal lost sight of
the fact that the rules in connection thereofwere repealed permitting
G consideration of A. C.R. written after the due date/prescribed time
period-Moreover, a candidate should not suffer for the lapses on the
part ofReporting/Reviewing Officer-Normally, Selection Committee ,.-
abide by the assessment made by reporting /reviewing officer- t

H 624
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 625
COMMISSION
However, it could make its own assessment in terms ofguideline~ issued A
by the Commission and also taking into consideration various factors
relating to pe1formance ofthe candidates-Thus, review ofassessment
in respect of some candidates fully within the competence of the
Committee-Hence, High Court was right in upholding the
recommendations made by the Committee-Performance appraisal- B
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.

State Government ofKamataka constituted a Selection Committee c
to recommend candidates amongst the Non-State Civil Service Officers
of Government ofKamataka to the Indian Administrative Service of
Kamataka cadre. The Committee recommended the name of eight
candidates. The selection was challenged by the unsuccessful candidates
before the Central Administrative Tribunal on grounds of ma/a.fide and D
; 1 arbitrariness. The Tribunal set aside the recommendations of the
Selection Committee holding that the Selection Committee without
application of mind had awarded marks to the selected candidates in a
discriminatory manner; and that the Selection Committee was not
properly constituted as per the provisions of Regulation 3 of the Indian E
Administrative Service (Appointment by Promotion) Regulations, 1955.
Aggrieved by the order of the Tribuna~ selected candidates and also
Union Public Service Commission filed writ petitions before the High
Court. A Division Bench of the High Court held thatthe allegation of
." ma/a fide leveled againstthe Member of the Commission and Chairman F
of Selection Committee was not well founded; and 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 present appeals and Contempt Petition.
G
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 Service in
case an incumbent is having outstanding merit and ability.
[Para 4] [632-F] H
626 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 2.1. Th~re is no correlation of allegation of mala fide against the
Chairman of the Selection Committee with the selection of the
candidates for appointment to the Indian Administrative Service. 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
B rendered to the State, 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 of these persons, now to think that just
because a member was allotted some land so that necessarily he would
c favour these selected candidates only is nothing but figment of
imagination of the appellants. To connect the selection with the previous
allotment ofland to Chairman, Selection Committee has hardly any
connection between the two. In the selection process, he was one of the
Members along with others. All the Officers who were to be selected
D belonged to Kamataka State and it is not specific that any ofthe selected
candidates has in any manner actively associated with the allotment of -; .
land to him. It is too remote to connect the selection of these candidates
with the allotment of the site to him. No connection is found that any of
the selected candidates has in any manner directly or indirectly
E associated himself in the allotment ofthe site in his favour. 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 of candidates and allotment of residential site in his favour.
F As such, the allegations are too far-fetched to render the entire selection )( ..
invalid on the ground of so called malafide.
[Para 6) (636-G, H; 637-A-E]
2.2. The allegation of malafide was also leveled against the other
G Member ofSelection Committee, but he was not imp leaded as a party.
Therefore, the allegation of mala fide could not be entertained by the
Tribunal. As such, the allegation ofmalafide against that Member could r--
not be taken into consideration and rightly so, by the High Court as well
as by the Tribunal. [Para 7] (637-F, G]
H
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 627
COMMISSION
3. Since the post of Divisional Commissioner was not in existence A
and the same having been abolished there was no question of including
the Divisional Commissioner as a Member of Selection Committee
specially when the Government ofKamataka has already informed the
Commission to amend the schedule. When the post of Divisional
Commissioner was not in existence that would not render the selection B
or would not make the Selection Committee non-functional as out of
~-
the seven Members six Members participated in the Selection
Committee and Regulation 3 clearly says that absence of a Member,
other than the Chairman or Member of the Commission, shall not
invalidate the proceedings of the Committee if more than half the c
Members of the Committee had attended its meetings. Therefore, this
contingency has already been taken care by Regulation 3(3). As such
the Selection Committee in 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 of the seven Members, D
six Members of the Selection Committee were there which is more than
50%. As such, nothing turns on this. Thus, the Selection Committee was
properly constituted. [Para8] (638-D-H; 639-A]
4.1. The contention, that the annual confidential report in respect E
of two selected candidates were written after lapse of period of two 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. F
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 not written or reviewed, then the incumbent is not responsible for it
and why should he suffer on account of that The authority who is under G
obligation to complete the formalities having failed to do so till the lapse
-~
of time why the incumbent should be punished. This Court failed to
appreciate the submissions of the parties before the Tribunal and the
view taken by the Tribunal also. [Para 10) [643-B, C, D, E]
H
628 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 4.2. In the case of other candidate, his confidential reports for the
years 2000-2001 and 2001-2002 were not written in time in terms of Rule
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
B the part of the reporting officer or the reviewing authority not writing
the report of the officer for which the officer cannot be made to suffer.
Therefore, in this background, provisions have been made for special
reports and in the administrative jurisprudence special reports can be
sought for in respect of any officer whenever his case comes for
c consideration and ifthe Selection Committee wants to have the up to
date report of that incumbent. It is the established practice to call for
such kind of special reports. 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 the other candidate was obtained and
D 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)
E 4.3. It is the selection process and what prevailed with the
Committee after review of the annual confidential reports of all these
officers cannot be dilated in writing. When the Selection Committee sits
and considers the candidature of both the officers and in case of both
the officers, looking at the 5 years annual confidential reports, one is
F 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. How the
Tribunal can sit as an appellate authority to call for the personal records
and constitute selection committee to undertake this exercise. This
G power is not given to the Tribunal and it should be clearly understood
that the assessment of the Selection Committee is not subject to appeal
either before the Tribunal or by the Courts. One has to give credit to r-·
the Selection Committee for making their assessment and it is not subject
to appeal. Taking the over all view of the ACRs of the candidates, one
H may be held to be very good and another may be held to be good. If this
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 629
COMMISSION
type ofinterlerence is permitted then it would virtually amountthat the A
Tribunals and the High Courts started sitting as Selection Committee
or act as an appellate authority over the selection. It is not their domain,
it should be clearly understood, as has been clearly held by this Court
in a number of decisions. [Para 11] (644-G, H; 645-A, B, C, D]
B
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 and Neuro Sciences v. Dr.KKalyana Raman &
Ors., (1992] Supp. 2 SCC 481; P.M Bayasv. Union ofIndia & Ors., [1993]
3 SCC 319 and Anil Katiyar (Mrs.) v. Union ofIndia & Ors., (1997] 1
c
sec 280, relied on.
4.4. Courts normally do not sit in the court of appeal to assess the
ACRs and much less the Tribunal can be given this power to constitute
an independent Selection Committee over the statutory Selection D
)
i Committee. The guidelines have already been given by the Commission
as to how the ACRs to be assessed and how the marking has to be made.
These guidelines take care of the proper scrutiny and not only by the
Selection Committee but also the views of the State Government are
obtained and ultimately the Commission after scrutiny prepares the final E
list which is sent to the Central Government for appointment. There
also it is not binding on the Central Government to appoint all the
persons as recommended and the Central Government can withhold the
} appointment of some persons so mentioned in the select list for reasons
'
recorded. Therefore, if the assessment of ACRs in respect of two F
candidates should have been made as "outstanding" or ''very good" it
is within the domain of the 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 G
to be "outstanding" and the second one was found to be ''very good".
-._,
This assessment cannot be made subject ofCourts or Tribunal's scrutiny
unless actuated by malafide. [Para 16) [649-B, C, D, E]

H
630 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 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
B 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
c review ofthe assessment is fully within the competence of the Selection
Committee.The view taken by the High Court is correctthat it is always
within the power of the Selection Committee to record its own assessment
about the selection which may be at variance with that of the reporting
officer or reviewing officer.
D [Paras 17and18) [649-G, H; 650-A,B; 651-C)
, '.
RamanandPrasadSingh & Anr. v. Union ofIndia & Ors. Etc., [1996)
4 SCC 64 and UPSCv. K. Rajaiah & Ors., [2005) 10SCC15, relied on. ..
4.6. The High Court considered the case of the two candidates who
E were eliminated by the Selection Committee and their cases were not
sent to 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 Chief Secretary and these persons were not found more
,
meritorious to be recommended for appointment. This assessment of ~
F the Screening Committee was found by the High Court to be proper
and there was nothing on record to show that the candidates who were
short-listed were not meritorious. 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)
G
5. No merit is found in the contempt petition. [Para 21] [652-C]
r ,
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5883-
5891 of2007.

H From the final Judgment and Order dated 6.10.2005 of the High
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 631
COMMISSION [A.K. MATHUR, J.]
Court ofKarnataka at Bangalore in W.P. Nos. 2288-89/2005, 44488/ A
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 B
of2006.
t
Altaf Ahmed, 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, c
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. D

The Judgment of the Court was delivered by
A.K. MATHUR, J. 1. Leave granted in all the Special Leave
Petitions.
E
2. All these appeals arise against the common order dated
6.10.2005 passed by the Division Bench of the High Court ofKarnataka
while disposing of a bunch of petitions arising out of the common order
f- dated 4.10.2004 passed by the Central Administrative Tribunal,
Bangalore Bench (hereinafter to be referred to as the Tribunal). The F
Tribunal by the aforesaid order set aside the recommendations of the
Selection Committee to fill up 8 vacancies belonging to the non-State Civil
Service Officers of Government 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 G
application of mind had awarded marks to the selected candidates in a
discriminatory manner. It was also held by the Tribunal that the Selection
Committee was not properly constituted as per the provisions of Regulation
3 of the Indian Administrative Service (Appointment by Promotion)
Regulations, 1955 (hereinafter to be referred to as the Regulations of H
632 SUPREME COURT REPORTS [2007113 (Addl.) S.C.R.

A 1955). Out of the bunch of petitions 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 of the Selection Committee, Shri Subir Dutta, Member,
U.P.S.C. against whom the allegation of malafide was leveled and it was
B upheld by the Tribunal, second one challenging the finding of the Tribunal
that the Selection Committee was not properly constituted and the
Selection Committee acted arbitrarily and in a discriminatory manner and
awarded marks to the selected candidates. Another batch of petitions
(seven in number) was filed by the selected candidates whose names were
C 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.
D 3. Learned Division Bench of the KamatakaHigh Court after hearing
all the parties found that the allegation of mala fide leveled against Shri
Subir Dutta, Member of the Commission was not well founded, that the
Selection Committee was properly constituted and the Committee did not
act in arbitrary or discriminatory manner while awarding the marks to the
E 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.
F 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 of service in the State
Government on the first day of January of the year in which his case is
G being considered in any post which has been declared equivalent to the
post of Deputy Collector in the State Civil Service. The candidates shall
not exceed five times the posts proposed to be filled up during the year.
An incumbent should not have attained the age of 54 years, as per the
Regulations of 1997. Regulation 5 says that a list shall be prepared of
H the suitable candidates by the Committee after scrutiny of service records
M.V. THIMMAIAH v. UNION PUBLIC SERVICE 633
COMMISSION [A.K. MATHUR, L)
and personal interview. The Committee has been defined in Regulation A
2(i)(a) which means a Committee as constituted under Regulation 3 of
Regulations, 1955. As per the Regulations, the Committee shall be headed
by the Chairman of the Commission or if the Chairman fails to attend, by
any other Member of the Commission. The Chairman or the Member of
the Commission shall preside over the meetings. Regulation 3(3) further B
says that the absence of a member, other than the Chairman or Member
of the Commission, shall not invalidate the proceedings of the Committee
if more than half the members of the Committee had attended the meeting.
Regulation 3(3) which will have relevant bearing reads as under:
"3(3) The absence of a member, other than the Chairman or c
Member of the Commission, shall not invalidate the proceedings
of the Committee if more than half the members of the Committee
had attended the meetings."
). i Apart from the Member of the Commission, as per the schedule referred D
to for the State, the follov.ing members shall also be the members of the
Committee which includes the Chief Secretary to the Government;
Additional Chief Secretary to the Government; Principal Secretary to
Government, Revenue Department; Senior most Divisional Commissioner
and two nominees of the Central Government. This Selection Committee E
after scrutiny of the records and calling for personal interview will prepare
a list and recommend the names of the suitable candidates to the State
Government concerned, which shall forward to the Commission for its
~
approval along with the records of all members of the State Civil Service
included in the list; the records of all members of the State Civil Service F
who are proposed to be superseded by the recommendations made in
the list and the observations, if any, of the State Government on the
recommendations of the Committee to the Central Government and the
Central Government shall also forward their observations, if any, on the
recommendations of the Committee to the Commission. Thereafter, the G
., Commission as per Regulation 7 of 1997 shall consider the list prepared
by the Committee; observations, if any, of the Central Government or the
State Government concerned, on the recommendations of the Committee
and approve the list subject to the provisions of Regulation 7(2) of the
Regulations, 1997. As per Regulation 7(2); if the Commission considers H
634 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A it necessary to make any changes in the list received from the State
Government, the Commission shall inform the State Government and the
Central Government of the changes proposed and after taking into account
these comments, if any, of the State Government and the Central
Government, may approve the list finally with such modification, as may
B in its opinion be just and proper. That list shall be fmwarded to the Central
Government and the Central Government shall make appointment on the
basis of the list but if the Central Government is of the opinion that it is
necessary or expedient so to do in the public interest may not appoint
any person and it is within the domain of the Central Government and it
C need not record its reasons or communicate the same to the Commission.
In this scheme of the Rules, the factual controversy shall be examined.
5. In the present case eight vacancies were advertised and the
process of recruitment to these vacancies was undertaken. The State
D Government constituted a Screening Committee for short-listing of the
Officers not belonging to the State Civil Service. The Committee was
headed by Shri B.S.Patil, Chief Secretary to the Government and four
other Members who were the Secretaries to the Government of
Karnataka. As per Circular dated 30.3.2002 the Government had
E directed various Heads of the Department to send a list eligible suitable
officers who fulfil the aforesaid eligibility criteria In pursuance of this circular
79 names were received from different Departments and their cases were
scrutinized by the Screening Committee with reference to their records
for short-listing the names which could be sent to the Commission for
F selection to the I.A.S. cadre. Since the number of persons to be
considered shall not exceed five times the vacancies proposed to be filled
up in that year, therefore, as against eight vacancies 40 candidates were
to be short· listed. The Screening Committee short-listed 40 candidates
on the basis of the service records out of the 79 candidates whose names
G were received from different Departments. Besides, the name of one more
person was sent to the Selection Committee for selection because of the
r -
order passed by the Tribunal. Thus, in total names of 41 persons were
sent for consideration against eight vacancies. The Selection Committee
after scrutinizing the cases and after interviewing 39 candidates selected
H eight candidates and two candidates remained absent. Though a petition
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 635
COMMISSION [A.K. MATHUR, J.]
was filed before the Tribunal by one person who was not selected and A
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. B
Then one Special Leave Petition was filed before this Court against the
order passed by the Division Bench vacating the stay order passed by
the Tribunal that Special Leave Petition was dismissed on 23.7.2004.
Thereafter, the matter was finally heard by the Tribunal and the Tribunal
set aside the selection of eight selected candidates of the Karnataka cadre C
to the I.A.S. The Tribunal was of the view that the Selection Committee
was not properly constituted as per the provisions of Regulation 3 of the
Regulations, 1955 and the Tribunal further took the view that the selection
of eight candidates stood vitiated as a result of mala fide on the part of
Shri B.S.Patil, Chief Secretary and Shri Subir Dutta, Member of the D
Commission who was the Chairman of the Selection Committee. It was
further observed by the Tribunal that the selection was not fair and
selection was being made in an arbitrary manner. However, the name of
two persons who were not short-listed was rejected by the Tribunal on
the ground that there was no arbitrariness for their non-inclusion. That E
order was challenged by them before the High Court by filing writ petition.
The Division Bench of the 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 F
parts; (i) ma/a fide and (ii) the constitution of the Selection Committee
and the selection of the 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 G
also a product of favouritism shown to the selected candidates.
notwithstanding the fact that the appellants had outstanding records but
their names were not included solely for the reason that the Selection
Committee was headed by Shri Subir Dutta, Member of the Commission
and Shri B.S.Patil, the Chief Secretary to the Government being one of H
i

636 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A the constituents of the Committee being interested in the candidature of
Respondents 5 to 12 before the Tribunal and as a result of such selection,
their candidatures have not been considered in a proper and objective
manner and they did not receive a fair treatment from the Selection
Committee. It is alleged that the selection was vitiated on the ground that
B Shri Subir Dutta, who was the Chairman of the Selection Committee was
appeased with the piece ofland in the city of Bangalore i.e. he was allotted
a site in Bangalore irrespective of the fact that whether he was eligible or
not. It was submitted that during the process of selection and on the basis
of interview, a site has been bartered away in favour of Shri Subir Dutta
C and in that the former Chief Secretary to the Government, Shri B.S.Patil
has shown a great interest. Therefore, on account of this favouritism was
shown to respondents 5 to 12 before the Tribunal, the applicants before
the Tribunal have been denied their legitimate selection and therefore, in
sum total, the allegation of mala fide against Shri Subir Dutta is that a
D site was allotted to him to appease him and secure favourable selection
in respect of Respondents 5 to 12. The High Court in order to verify the
element of truth sent for the original file relating to the allotment of
residential site to Shri Subir Dutta from Bangalore Development Authority
wherein it is noted that on 11.4.2003 a note was placed by Shri B.S.Patil,
E the Chief Secretary, to the Chief Minister making a request that a site be
allotted to Shri Subir Dutta as he has attachment to the State ofKamataka
and he has been helpful both for selecting Bangalore for bi-annual Air
Shows and for grant of defence land for the purpose of road network in
Bangalore. For that on 17.4.2003 the Chief Minister approved the
F proposal of the Chief Secretary for allotment of a residential site to Shri
Subir Dutta who was at that time the Defence Secretary. After that
necessary formalities for allotment was undertaken. On 17.4.2003 when
a site was allotted to Shri Subir Dutta, he was the Defence Secretary to
Government oflndia and he was not a Member of the Commission and
G he became a Member of the Commission only on 1. 7.2003 and assumed
charge on 4.7.2003 as Member of the Commission. The selection took
place in November, 2003. Therefore, the Division Bench of the High Court
rejected the allegation of mala fide to be far-fetched. W~ gave our
thoughtful consideration to this allegation. There is no correlation with this
H selection. It is too far fetched to connect with this case that Shri Subir
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 637
COMMISSION [A.K. MATHUR, J.]

- i
Dutta who was given the residential site in lieu of his service rendered to A
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 of the State and there was no ma/a
.
~·
fide intention in short-listing of these persons, now to think that just because
Shri Dutta was allotted some land so that necessf!rily he would favour B
these selected candidates only is nothing but figment of imagination of the
·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 of the Members along with
others. All the Officers who were to be selected belonged to Kamataka c
State and it is not specific that any of the 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 of the site to Shri Subir Dutta. We do not find any connection
that any of the selected candidates has in any manner directly or indirectly D
, I
associated himself in the allotment of the site in favour of Shri Subir Dutta.
As it appears from the file which was summoned by the High Court that
the proposal was mooted out by the Chief Secretary and it was approved
by the Chief Minister. Therefore, there appears no direct or indirect
connection with the selection of candidates and allotment of residential E
site in favour of Shri Subir Dutta. As such, the allegations are too far-
fetched to render the entire selection invalid on the ground of so called
ma/a fide. This is purely flight of imagination and we strongly reject the
....... t allegation of mala fide against Shri Subir Dutta, the Chairman of the
Selection Committee. F
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
of mala fide against Shri B.S.Patil could not be taken into consideration
G
and rightly so, by the High Court as well as by the Tribunal. The allegation
~--t of mala fide is very easy to be levelled and it is very difficult to substantiate
it, specially in the matter of selection or whoever is involved in the decision
making process. People are prone to make such allegation but the Courts
owe a duty to 0 ~rutinize the allegation meticulously because the person
H
638 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A who is making the allegation of animous sometimes bona fidely or
sometimes mala fidely due to his non-selection. He has a vested interest.
-
Therefore, unless the allegations are substantiated beyond doubt, till that
time the Court cannot draw its conclusion. Therefore, we reject the
allegation of malafide. ·-
~

B
8. Now, coming to the constitution of the Selection Committee and
the selection undertaken by the Committee, so far as the constitution of
the Selection Committee is concerned, one of the submissions was that
the Divisional Commissioner who was supposed to be the Member of
c the Selection Committee was not there. Therefore, the whole selection
stood vitiated. So far as this argument is concerned, suffice it to say that
the post of Divisional Commissioner was abolished by the State
Government with effect from 1.4.2003 and the said fact was informed to
the Commission about the abolition of the post and it was requested to
suitably amend the schedule as per Regulation 3 of the Regulations of
])
1955. Since the post of Divisional Commissioner was not in existence ,. '
and the same having been abolished there was no question of including
the Divisional Commissioner as a Member of Selection Committee
specially when the Government ofKarnataka has already informed the
Commission to amend the schedule. When the post of Divisional
E
Commissioner was not there that would not render the selection or would
not make the Selection Committee non-functional as out of the seven

-
Members six Members participated in the Selection Committee and
Regulation 3 clearly says that absence of a Member, other than the
Chairman or Member of the Commission, shall not invalidate the ~
F
proceedings of the Committee if more than half the Members of the
Committee had attended its meetings. Therefore, this contingency has
already been taken care by Regulation 3(3) that in case any Member is
unable to participate in the selection process except the Member of the
Commission and more than half of the members have attended the
G
meeting, then the proceedings of the Committee shall not vitiate in the
absence of such Member. As such the Selection Committee in the absence .,_ -
of Divisional Commissioner cannot be said to be not properly constituted.
More so there is no prejudice caused to the appellants as out of the seven
Members, six Members of the Selection Committee were there which is
H
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 639
COMMISSION [AK. MATHUR, J.]
more than 50%. As such, nothing turns on this. We hold that the Selection A
Committee was properly constituted.
9. Now, comes the question with regard to the selection of the
candidates. Nonnally, the recommendations of the Selection Committee
cannot be challenged except on the ground of mala jides or serious
B
violation of the statutory Rules. The Courts cannot sit as an appellate
authority to examine the recommendations of the 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 of the Court to examine
each candidate and record its opinion. In this connection, learned senior
c
counsel for the appellants has taken us through various following decisions
of this Court.
(i) AIR (2003) SC 3044
Surya Dev Rai v. Ram Chander Rai & Ors., D

(ii) [1993] 3 sec 319
P.MBayas v. Union ofIndia & Ors.,
(ill) [ 1985] 4 sec 417
E
Ashok Kumar Yadav & Ors. v. State of Haryana & Ors.
Etc.,
(iv) [1981] 1 sec 722
Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors. F
(v) (2007) 3 SCALE 219
Union Public Service Commission v. S. Thiagarajan & Ors.
Mr.P.P.Rao, learned senior counsel appearing for the private respondents
invited our attention to the following decisions of this Court. G
--+ (i) [1976] 3 sec 583
Dr. G.Sarana v. University of Lucknow & Ors.
(ii) [1980] @ sec 355
H
640 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 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.
B Learned Senior Counsel for the Commission invited our attention to the
following decisions of this Court.
(1) [1973] 2 sec 836
Union of India v. Mohan Lal Capoor & Ors.
c (ii) [1981] 4 sec 159
Lila Dhar v. State of Rajasthan & Ors.
(iii) [1985] 4 sec 417
Ashok Kumar Yadav & Ors. v. State of Haryana & Ors.
-
D 'f ,.
Etc.
(iv) 1986 (Supp) sec 617
R.S.Dass v. Union of India & Ors.etc.
E (v) [1987] Supp SCC 401
State of UP. v. Rafiquddin & Ors. Etc.
(vi) [1988] 2 sec 242
Union Public Service Commission v. Hiranyalal Dev & -+ -
F Ors. Etc.
(vii) [1983] 3 sec 241
Mehmood Alam Tariq & Ors. v. State ofRajasthan & Ors.
(viii)[l 990J 1 sec 305
G
Dalpat Abasaheb Solunke & Ors. v. Dr.B.S.Mahajan & Ors.
t--
(ix) [1992] Supp. 2 sec 481
National Institute of Mental Health And Neuro Sciences
H v. Dr.K.Kalyana Raman & Ors.
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 641
COMMISSION [A.K. MATHUR, J.]
(x) [1993] 1sec17 A
Indian Airlines Corporation v. Capt. KC.Shukla & Ors.
(xi) [1993] 3 sec 319
P. M Bayas v. Union of India & Ors. Etc.
B
(xii) [1994] Supp. 1 sec 454
C.P.Kalra v. Air India through its Managing Director,
Bombay & Ors.
(xiii.) [1997] 1 sec 280
c
Anil Katiyar (Mrs.) v. Union of India & Ors.
(xiv)[l997] 9 sec 151
All India State Bank Officers 'Federation & Ors. v. Union
of India & Ors. Etc. D
• '(
(xv) [1998] 3 sec 694
Union of India & Anr. v. N.Chandrasekharan & Ors.
(xvi)[2004] 6 sec 786
Inder Parkash Gupta v. State ofJ & K & Ors. E

(xvii) [2006] 6 sec 395
K.HSiraj v. High Court of Kera/a & Ors.
• • 10. Keeping in view the ratio laid down by this Court in several F
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 of the
Selection Committee does not sit in a court of appeal. Courts have limited
scope to interfere, either selection is actuated with ma/a.fide or statutory G
provisions have not been followed. In the present case, 39 candidates
-_. were examined by the Selection Committee for being recommended for
appointment to the I.A.S. The selection process took place between
24.11.2003 and 28.11.2003 whereby the Selection Committee scrutinized
the service records of the individual candidates and interviewed them and H
642 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A the Selection Committee selected those candidates who were found to
be having outstanding merit and ability. The Commission has fixed 50
marks for scrutiny of the service records and 50 marks were allotted for
interview. It was also decided by the Commission that the candidates
would be eligible for selection only if they secure 50% marks in each of
B the two components i.e. 25 marks in the scrutiny of the service records
and 25 marks in the interview. The Commission has further laid down
the norms for awarding marks for the scrutiny of service records. l 0 marks
are awarded to a candidate if on an assessment of service record he was
found to be outstanding, 8 marks if the service record was found to be
C 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 of the service
records were also not held to be eligible. However, on facts no person
was rejected on the ground that he failed to secure 25 marks either on
D the basis of the service records or on the basis of interview. The Tribunal
while scrutinizing the records sent by the Selection Committee set aside
the selection of eight candidates namely Sarvashri Anwar Pasha and
K.Ramanna Naik, who according to the Tribunal were wrongly selected.
The block period is five years for which the confidential records of the
E 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
F 8 of the 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 of Shri Anwar Pasha was invalid. It was found by the Selection
Committee that the Annual Confidential Reports of this Officer for these
G two years were not written within the time limit prescribed as required
under Rule 8 of the Rules of 1994. But it was pointed out that Rule 8 of
the Rules of 1994 was amended in 1999 and the time limit prescribed
was done away with retrospective effect. It was provided as per clause
(b) of Rule 5 of the amending Rules of 1999 that the reports written or
H reviewed or accepted in accordance with the 1994 Rules as amended in
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 643
COMMISSION [A.K. MATHUR, J.]
the year 1999 shall be deemed to be valid for the purpose of that rule. A
But in view of the retrospective amendment of the Rules of 1999,°the
time limit having been done away with the reports could have been taken
into consideration but it was further pointed out that the Rules of 1994
were repealed in 2000 and the provisions ofKarnataka Civil Services
(Perfonnance Reports) Rules, 2000 (hereinafter to be referred to as the B
Rules of2000) came into force. Rule 13 of the Rules of2000 provided
that the repeal shall not affect the previous operation of the 1994 Rules
or anything duly done or suffered there under or affect any right, liability
or obligation acquired, accrued or incurred under those Rules. Therefore,
so far as the annual confidential reports in respect of Shri Anwar Pasa C
which were written after the period of two years should not have been
taken into consideration by the Selection Committee, does not survive
because the Rules of2000 repealed the Rules of 1994 and consequential
amendment of Rules of 1999 was done away with. Therefore, the reports
for the years 1998-99 and 1999-2000 cannot be taken away and these D
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 of that. The authority who is under obligation to complete the
fonnalities having failed to do so till the lapse of time why the incumbent E
should be punished. We fail to appreciate the submissions of the parties
before the Tribunal and the view taken by the Tribunal also. It was also
pointed thatthe operation of the 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 F
the Tribunal and we cannot hold the incumbent responsible for it and
deprive him the due consideration if there is failure on the part of the
officers to discharge their duties in writing the ACRs, the incumbent should
not be allowed to suffer. Therefore, we are of opinion that it is not-a case
in which there was any statutory breach of Rules committed by the G
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 of Rule 8 of the Rules of1994. Therefore, special
reports were obtained, that too is also covered by the Kamataka Civil H
644 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A Services (Performance Reports) (Amendment) Rules, 1996. Rule 11-A
says that when performance reports in respect of officers are not available
for one or more years, 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
B time for the entire period or for each year for which the report was not
written. There again the question is failure on the part of the reporting
officer or the reviewing authority not writing the report of the officer for
which the officer cannot be made to suffer. Therefore, in this background,
provisions have been made for special reports and in the administrative
C jurisprudence special reports can be sought for in respect of any officer
whenever his case comes for consideration and if the Selection Committee
wants to have the up to date report of that incumbent. It is the established
practice to call for such kind of special reports. The idea is that for not
reporting the annual confidential reports of the incumbent, why the
D incumbent should be made to suffer. Therefore, the Selection Committee
or the concerned authority can always ask for the annual confidential
reports which were not written for a particular year by the reporting
authority or by the reviewing authority or in some cases it can also seek
a special report. Such practice cannot be said to be unusual practice in
E administrative jurisprudence. In the present case, it appears that a special
report in respect of Sh. K. Ramanna Naik was obtained and that was
considered by the Selection Committee. Therefore, this procedure
adopted by the Selection Committee cannot be found to be arbitrary or
in any way discriminatory. Consideration of both these Officers cannot
F 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
G
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 of all these
H
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 645
COMMISSION [A.K. MATHUR, J.]
officers cannot be dilated in writing. When the Selection Committee sits A
and considers the candidature of both the officers and in case of both the
officers, looking at the 5 years annual confidential reports, one is found
• to be over all outstanding and the other is found to be over all very good,
this marking of the Selection Committee cannot be interfered with in
extraordinary jurisdiction or even by the Tribunal. We fail to understand B
how the Tribunal can sit as an appellate authority to call for the personal
records and constitute selection committee to undertake this exercise. This
power is not given to the Tribunal and it should be clearly understood
that the assessment of the Selection Committee is not subject to appeal
either before the Tribunal or by the Courts. One has to give credit to the C
Selection Committee for making their assessment and it is not subject to
appeal. Taking the over all view of the ACRs of the candidates, one may
be held to be very good and another may be held to be good. If this
type of interference is permitted then it would virtually amount that the
Tribunals and the High Courts started sitting as Selection Committee or D
act as an appellate authority over the selection. It is not their domain, it
should be clearly understood, as has been clearly held by this Court in a
number of decisions. Our attention was invited to a decision of this Court
in R.S.Dass (supra) [1986] Supp. SCC 617 wherein at paragraph 28 it
was held as follows: E
"It is true that where merit is the sole basis of promotion, the
power of selection becomes wide and liable to be abused with less
difficulty. But that does not justify presumption regarding arbitrary
exercise of power. The machinery designed for preparation of
Select List under the regulations for promotion to All India Service, F
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 G
of the Selection Committee are scrutinized by the State
Government and if it finds any discrimination in the selection it has
power to refer the matter to the Commission with its
recommendations. The Commission is under a legal obligation to
H
646 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A consider the views expressed by the State Government along with
the records of officers, before approving the Select List. The
Selection Committee and the Commission both include persons
having requisite knowledge, experience and expertise to assess the
service records and ability to adjudge the suitability of officers. In
B 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
C ample power to strike down the same and that is an adequate
safeguard against the arbitrary exercise of power."
12. Our attention was invited to a decision of this Court in Union
Public Service Commission v. Hiranyalal Dev & Ors etc., [1988] 2
D 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
E field of choice. How to categorize in the light of the relevant records
and what norms to apply in making the assessment are exclusively
the functions of the Selection Committee. This function had to be
discharged by the Selection Committee by applying the same norm
and tests and the selection was also to be made by the Selection
F 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
G to direct the Selection Committee to reconsider the merits of the
respondent vis-a-vis the official who was junior to him. The
jurisdiction of the Supreme Court under Article 136 in this respect
is, however, wider and cannot be equated with that of the Tribunal."
13. Our attention was invited to a decision of this Court in Dalpat
H
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 647
COMMISSION [A.K. MATHUR, J.]
Abasaheb Solunke & Ors. v. Dr.B.S.Mahajan & Ors., [1990] 1 SCC A
305, wherein it was observed as follows:
"It is not the function of the court to hear appeals over the
decisions of the Selection Committees and to scrutinize the relative
merits of the candidates. Whether a candidate is fit for a particular
post or not has to be decided by the duly constituted Selection B
Committee which has the expertise on the subject. The court has
no such expertise. In the present case the University had constituted
the Committee in due compliance with the relevant statutes. The
Committee consisted of experts and it selected the candidates after
going through all the relevant material before it. In sitting in appeal C
over the selection so made and in setting it aside on the ground of
the so called comparative merits of the candidates as assessed by
the court, the High Court went wrong and exceeded its jurisdiction."

14. Similarly in National Institute of Mental Health and Neuro D
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 of the Selection Committee is neither judicial nor E
adjudicatory. It is purely administrative. Where selection has been
made by the assessment of relative merits of rival candidates
determined in the course of the interview of candidates possessing
the required eligibility and there is no rule or regulation brought to
the notice of the Court requiring the Selection Committee to record F
reasons, the Selection Committee is under no legal obligation to
record reasons in support of its decision of selecting one candidate
in preference to another. Even the principles of natural justice do
not require an administrative authority or a Selection Committee
or an examiner to record reasons for the selection or non-selection
G
of a person in the absence of statutory 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

H
648 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A with regard to the IAS (Recruitment) Rules, 1954 which contemplated
that special cases from among persons and special circumstances occurring
in the rules could justify the selection of the incumbents or not, in that
context, their Lordships held as follows:
"We are satisfied that there were "special circumstances"
B
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
c to show the existence of "special circumstances" in terms of Rule
8(2) of the Rules. As interpreted by us the scheme of the Rules
and the Regulations clearly show that it is the State Government
which has to be satisfied regarding the existence of "special
circumstances"."
D
I .
16. Our attention was invited to a decision of this Court in Anil
Katiyar (Mrs.) v. Union of India & Ors., [1997] 1 SCC 280, it was
observed as follows:
'The question is whether the action of the DPC in grading appellant
E
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
F
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
G
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.
H
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 649
COMMISSION [A.K. MATHUR, J.]
The observations of the Tribunal that out of the two "outstanding" A
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 of catena of cases, Courts normally do not sit in the B
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 of the proper scrutiny C
and not only by the Selection Committee but also the views of the 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 D
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 of the Selection
Committee and we cannot sit in the court of appeal to assess whether E
Shri R.Rarnapriya has been rightly assessed or Shri Dayashankar has been
wrongly assessed. The overall assessment of ACRs of both the Officers
were taken; one was found to be "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 mala fide.
F
17. In the case of Shri S.B.Kolhar, Shri R.S.Phonde and Shri
Puttegowda, the assessment of the reporting officers and the reviewing
officers in the State have been found to be "outstanding". But the Selection
Committee downgraded the assessment to "very good" and this has
provided grounds to the Tribunal to interfere with the selection of others. G
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
H
650 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 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
B about the candidates. Such review of the 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 of India & Ors. Etc., [1996] 4 SCC 64, which reads
as under:
c "The Committee applies its mind to the service records and
makes its own assessment of the service records of the candidates
marking them as outstanding, very good, good and so on. The
selection Committee does not necessarily adopt the same grading
which is given by the Reporting/ Reviewing Officer in respect of
D each of the candidates. In fact the Selection Committee makes m1 ~
overall relative assessment of the confidential report dossiers of the
officers in the zone of consideration. Thus, it does not evaluate the
confidential report dossier of an individual in isolation. It is after
this comparative assessment that the best candidates are put in the
E Select List. ... "
18. Our attention was invited to a decision of this Court in UPSC
v. K.Rajaiah & Ors., [2005] 10 SCC 15 wherein it has been held as
follows: !'

F
"That being the legal position, the Court should not have faulted
the so-called down gradation of the first respondent for one of the
years. Legally speaking, the term" downgradation" is an
inappropriate expression. The power to classify as "outstanding",
"very good" , "good" and "unfit" is vested with the Selection
G
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
H
M.V. THIMMAIAH v.UNION PUBLIC SERVICE 651
COMMISSION [A.K. MATHUR, J.]
evolve its own classification which may be at variance with the A
gradation given in the ACRs. That is what has been done in the
instant case in respect of the year 1993-94. Such classification is
within the prerogative of the Selection Committee and no reasons
need be recorded, though it is desirable that in a case of gradation
at variance with that of the State Government, it would be desirable B
to record reasons. But having regard to the nature of the function
and the power confided to the Selection Committee under
Regulation 5(4), it is not a legal requirement that reasons should
be recorded for classifying an officer at variance with the State
Government's decision." c
Therefore, the view taken by the High Court is correct that it is always
within the power of the Selection Committee to record its own assessment
about the selection which may be at variance with that of the reporting
officer or reviewing officer.
D
'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 E
"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 of the Commission, we
have to trust their assessment unless it is actuated with malice or apparent
mistake committed by them. It is not in the case of pick and choose, while F
selection has been made rationally. The selection by expert bodies unless
actuated with malice or there is apparent error should not be interfered
with. Lastly, the High Court considered the case of the two candidates
who were eliminated by the Selection Committee and their cases were
not sent to the Commission for selection to the I.A.S.cadre. The High G
Court found that this was the selection process by the Screening
Committee headed by the Chief Secretary and these persons were not
found more meritorious to be recommended for appointment. This
assessment of the Screening Committee was found by the High Court to
H
652 SUPREME COURT REPORTS (2007] 13 (Addi.) S.C.R.

A be proper and there was nothing on record to show that the candidates
who were short-listed were not meritorious.
20. As a result of our above discussion, we find that there is no merit
in these appeals and consequently, the appeals are dismissed. There would
be no order as to costs.
B
Contempt Petition © No.131 of 2006:
21. In view of the order passed in the civil appeals, we find no merit
in the contempt petition and the same is dismissed.
C S.K.S. Appeals and Contempt Petition dismissed.

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