B. AMRUTHA LAKSHMIversusSTATE OF ANDHRA PRADESH AND ORS.

                   [2013] 9 S.C.R. 1083


                  B. AMRUTHA LAKSHMI                            A
                              v.
        STATE OF ANDHRA PRADESH AND ORS.
           (Civil Appeal No. 9193 of 2013 etc.)
                    OCTOBER 18, 2013
                                                                B
     [H.L. GOKHALE AND J. CHELAMESWAR, JJ.]

   IND/AN ADMINISTRATIVE SERVICE (APPOINTMENT
BY SELECTION) REGULATIONS, 1997:
                                                                c
      Regulation 4 rlw Regulation 3 - Selection to I.A. S. under
non-State Civil Services category for the year 2011 - State
Government to send proposals for consideration of Committee
- Held: Names of officers from the cadre of Assistant
Commission~r of Commercial Taxes and above, who were of D
outstanding merit and were eligible, were to be forwarded, but
names which were sent for consideration were, only of Joint
Commissioners and Additional Commissioners and not
Assistant Commissioners -- Appellants were very much
eligible for being considered, and there were so many similar E
eligible candidates -- Once a candidate comes into the zone
of consideration, and satisfies all the requirements, including
that of outstanding merit and ability, he cannot be told that
merely because he is junior in the seniority, his name will not
be forwarded for consideration -- When there is a criteria laid
down for selection, Administration has to confine to the same, F
and it cannot impose an additional criterion, as it will mean
treating similarly situated employees dissimilarly, and
denying equal opportunity to some of them in the matter of
public employment on the basis of a criterion which is not laid
down, resulting into violation of Arts. 14 and 16(1) of the G
Constitution -- The decision of respondents not to consider
appellants for selection was violative of Art. 14 and Art. 16(1)
of the Constitution, since it was arrived at on the basis of a
criterion which was not laid down -- Indian Administrative
                              1083                               H
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A Service (Promotion by Appointment) Regulations, 1955 -
  Constitution of India, 1950 - Arts.14 and 16(1).

        JUDGMENT:

         Prospective operation of judgment - Names of
B   appellants not sent by department for selection to /AS -- Held:
    Since the selection for the year 2011 had been over even
    before the interim application in CAT was decided, setting
    aside the selection conducted some two years back, and
    asking the respondents to re-do the exercise after considering
C   the appellants and other similarly situated candidates, would
    create lot of uncertainty, in as much as appellants and such
    other similarly situated candidates, might or might not finally
    succeed in the selection process -- Therefore, it will not be
    proper to set aside the selections made -- Though the
D   declaration is being granted that the appellants and persons
    situated like them were entitled to be considered by the
    Committee, no further relief in that behalf can be granted to
    them - The opinion rendered by the Court will have to operate
    prospectively in the matter of application of the relevant rules,
E   for the future selections.

        ADMINISTRATIVE LAW:

       Public employment - Non-consideration of claim of
  candidates on unjust grounds -- Damages - Held: Even
F though appellants cannot get the relief sought, they must get
  damages for non-consideration on unjust grounds, as
  Commissioner for Commercial Tax had acted to reduce the
  zone of consideration, contrary to the rules, and instructions
  -- The award of damages is necessary also as those who are
G responsible for administration cannot trample upon rights of
  others on the grounds which are unsustainable in law --
  Therefore, State Government is directed to pay to appellants
  the damages and litigation costs, as ordered in the judgment
  and may recover the amounts from erring officer(s) -
H Damages.
    B. AM RUTHA LAKSHMI v. STATE OF ANDHRA             1085
                   PRADESH

     The appellant in C. A. No. 9193 of 2013, an Assistant     A
Commissioner of Sales Tax, filed an O.A. before the
Central Administrative Tribunal challenging the action of
the State Government in not considering her case for
being proposed for appointment to I. A. S. in the non-State
Civil Services category. The appellant prayed for an ad        B
interim order, inter alia "to direct, the 2nd respondent not
to convene the meeting of the Committee and not to
consider the case of any other candidate(s) proposed by
the 3rd respondent for appointment to l.A.S. by selection
(of A.P. State Non-SCS Officers), pending disposal of          c
O.A". The interim relief having been declined both by the
Tribunal as also the High Court, the instant appeals were
filed.

    Allowing the appeals in part, the Court
                                                               D
      HELD: 1.1 Regulation Nos. 3 and 4 of the Indian
Administrative Services (Promotion by Appointment)
Regulations 1955 make it evident that the Central
Government has to determine the number of vacancies
for which recruitment may be made each year, which is          E
to be done in consultation with the State Government.
Regulation No. 4 lays down, that the State Government
has to send the proposal for consideration of the
committee. It is important to note that while sending the
recommendations from Non Civil Services section, the           F
Government has to see that (i) the person concerned is
a person of outstanding merit and ability, (ii) he holds a
Gazetted post in a substantive capacity, (iii) he has
completed at least 8 years of continuous service on the
first day of January of the year in which his case is being    G
considered, (iv) the person must belong to a post which
has been declared equivalent to the post of Deputy
Collector in the State Civil Service, (v) the number of
persons proposed for consideration of the committee
shall not exceed five times the number of vacancies, and
                                                               H
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A (vi) the persons to be recommended should not have
  attained the age of 54 years on the first day of January
  of that year in which the names are considered by the
  committee. [para 10) [1094-D-E, F-H; 1095-A]

      1.2 It is evident from the letter dated 1.7.2010 from the
8
  Principal Secretary, of the Revenue (CT-I) Department,
  that the names of officers from the cadre of Assistant
  Commissioner of Commercial Taxes and above, who
  were of outstanding merit and were eligible, were to be
  forwarded, but the names which were sent for
C consideration were, however, only of the Joint
  Commissioners and Additional Commissioners and not
  Assistant Commissioners. [para 13) [1096-G-H; 1097-A]

       1.3 It is not disputed that the appellant was very
D much eligible for being considered, and there were so
  many similar eligible candidates. It is to be noted that the
  eligible officers concerned have a limited right of being
  considered, though they do not have a right of promotion.
  What the State Government had to do first was to find out
E as to who fulfilled the criteria. Undoubtedly, a large
  number of persons will fulfill the criteria, being Gazetted
  Officers with more than 8 years of service, and less than
  54 years of age on the relevant date. They would also
  have to be in the required pay scale. However, as stated
F in paragraph 4 of the Principal Secretary's letter, while
  considering the outstanding merit and ability, those with
  adverse remarks and those facing departmental
  enquiries were to be excluded. Therefore, there was no
  difficulty in excluding such persons on those grounds.
G Thereafter, what remained to be seen was as to who were
  the persons with outstanding ability and merit amongst
  them. The State Government maintains their annual
  appraisal reports.It is for the State Government to lay
  down by rules as to how the outstanding merit and ability
H is to be assessed, and over how much period. After all
   B. AM RUTHA LAKSHMI v. STATE OF ANDHRA                1087
                  PRADESH

these tests are applied, the number of persons to be             A
recommended will not be very large. However, once a
candidate comes into the zone of consideration, and
satisfies all the. requirements, including that of
outstanding merit and ability, he cannot be told that
merely because he is junior in the seniority, his name will      B
not be forwarded for consideration. The rule requires that
from amongst the outstanding officers, 15 names are to
be forwarded to the Central Government and, therefore,
if is possible that amongst these 15, a junior officer may
as well figure, depending upon the assessment of his             c
merit He cannot be eliminated merely on the ground that
he is a junior officer. [para 17] [1099-A-C, D-H; 1100-A-C]

    Shankarsan Dash Vs. Union of India 1991 (2) SCR 567
= 1991 (3) sec 47- referred to.
                                                                 D
     1.4 If the rules for selection contain a requirement, the
same has to be applied uniformly and strictly, and none
from the eligible group can be eliminated from being
considered on any criteria, other than those which are
provided in the rules. If there is a criteria laid down for      E
selection, the Administration has to confine to the same,
and it cannot impose an additional criterion over and
above whatever has been laid down, as it will no longer
remain an exercise of discretion, but will result into
discrimination. It will mean treating similarly situated         F
employees dissimilarly, and denying equal opportunity to
some of them in the matter of public employment on the
basis of a criterion which is not laid down, resulting into
violation of Arts. 14 and 16(1) of the Constitution. In the
instant case, the decision of the respondents cannot be          G
justified. [para 18] [1100-D-G]

    1.5 The prayers in the O.A. filed by the appellant were
negatively worded viz. to declare that the action of the
respondents not to consider the case of the appellant,
                                                                 H
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A and not to forward her name, was illegal. In a way it was
  a prayer for a positive declaration viz., that the appellant
  and persons situated like her were entitled to be
  considered by the committee, if they are otherwise
  eligible. This Court is of the view that, the appellant is
B entitled to such a positive declaration, which order takes
  care of the prayer as made in the Original Application. In
  the circumstances, the impugned judgment and order of
  the High Court as well as of the Central Administrative
  Tribunal, are set-aside and the relief as prayed in the O.A.
c is modified, and it is held that the decision of the
  respondents not to consider the appellant for the
  selection, amounted to her being treated dissimilarly,
  though she was situated similarly to the recommended
  officers. The decision was violative of Art. 14 and Art.
  16(1) of the Constitution, since it was arrived at on the
D basis of a criterion which was not laid down. [para 19-20]
  [1100-H; 1101-A-D]
       1.6 However, the selection for the year 2011 had been
  over, even before the interim application in the CAT was
E decided. Setting aside the selection conducted some two
  years back, and asking the respondents to re-do the
  exercise after considering the appellant and other
  similarly situated candidates, would create lot of
  uncertainty, in as much as the appellant and such other
F similarly situated candidates, might or might not finally
  succeed in the selection process. Therefore, it will not be
  proper now to set aside the selections made. Therefore,
  though this declaration is being granted, viz. that the
  appellant and persons situated like her were entitled to
G be considered by the Committee, no further relief in that
  behalf can be granted to them. The opinion rendered by
  this Court will have to operate prospectively in the matter
  of application of the rules, for the future selections. [para
  20) [1101-D-G]
H       2.1 The appellants had to resort to this litigation for no
       B. AM RUTHA LAKSHMI v. STATE OF ANDHRA               1089
                      PRADESH
    fault of theirs. The non consideration of their claim was       A
    totally unjust. Therefore, even though the appellants cannot
    get the relief sought, they must get the damages for non-
    consideration on unjust grounds. This is because, the
i   Commissioner for Commercial Tax had acted to reduce
    the zone of consideration, contrary to the rules, and in        B
    spite of a letter dated 1.7.2010 from the Principal Secretary
    Revenue (CT-I) Department, which had clarified that the
    Commissioner may send the proposals of the eligible
    candidates of the cadre of Assistant Commissioners and
    above, who were of outstanding merit. The award of              c
    damages is necessary also, as those who are responsible
    for administration of the State cannot trample upon the
    rights of others on the grounds which are unsustainable
    in law. Therefore, the State Government is directed to pay
    to the appellants the damages with the litigation cost as       D
    ordered in the judgment. It will be open to the State
    Government to recover the said amounts from officer(s)
    who were responsible for the non-consideration of the claim
    of both the appellants. [para 21 and 23] [1101-G-H; 1102-
    A-D, G-H]
                                                                    E
                         Case Law Reference:
        1991 (2) SCR 567            referred to        para 17

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    9193 of 2013.                                                   F

        From the Judgment and Order dated 31.12.2010 of the
    High Court of Andhra Pradesh in W.P. No. 32290 of 2010.

                               WITH
                                                                    G
    C.A. No. 9194 of 2013.

        P.P. Malhotra ASG, P.S. Narashimha, ATM
    Rangaramanujam, K. Radhakrishan, T.V. Ratnam, Munnawwar
    Naseem, Yasir Rauf, B.V. Bairam Das, G.N. Reddy, B. Debojit,    H
    1090    SUPREME COURT REPORTS                 [2013] 9 S.C.R.


A   Bala Shivudu M., Aadithya, Kiran Bhardwaj, S.U.K. Sagar (for
    Lawyer's Knit & Co.) for the appearing parties.

        The Judgment of the Court was delivered by

        H.L. GOKHALE J. 1. Leave Granted.
B
       2. We will first deal with the facts and legal submissions
  of the first SLP (C) 23761 of 2011. This appeal by Special
  Leave seeks to challenge the judgment and order dated
  31.12.2010, rendered by a Division Bench of the Andhra
c Pradesh High Court in Writ Petition No. 32290/2010,
  dismissing the same. The said Writ Petition sought to challenge
  the order passed by the Central Administrative Tribunal (CAT)
  Hyderabad, dated 20.12.2010, on the Interim Application
  moved by the appellant in her Original Application No. 1291/
D 2010, wherein, the CAT rejected the said Interim Application.

    Facts leading to this appeal are as follows:-

       3. The appeal is concerning the right of the appellant for
  being considered for the selection into the Indian Administrative
E Services (IAS) from the Non-civil services in the state of Andhra
  Pradesh. The selection into the IAS is governed by the All India
  Services Act 1951, and IAS (Recruitment) Rules 1954. There
  are three sources for being selected into the IAS as per the
  IAS (Recruitment) Rules 1954. They are:- (i) by direct
F recruitment; (ii) by promotion of a substantive member of a
  state civil service and (iii) by selection from amongst those
  persons who hold gazetted posts in. substantive capacity in
  connection with the affairs of the State, and who are not
  members of a State Civil Service.
G       4. The vacancies in the IAS cadre for each particular State
  are notified by the Central Government. In the present case, we
  are concerned with the three vacancies meant for category (iii)
  above viz. the officers of Non State Civil Services, which were
  notified for the year 2011. The case of the appellant is that,
H though she was eligible for being taken into the panel for
    B. AM RUTHA LAKSHMI v. STATE OF ANDHRA                    1091
           PRADESH [H.L. GOKHALE, J.]

consideration, she lost her opportunity due to the erroneous           A
interpretation of the relevant rules by the respondent No. 1,
State of Andhra Pradesh. At the relevant time, she was working
as the Assistant Commissioner of the Sales Tax, and she
satisfied all the eligibility criteria, yet the Principal Secretary,
Department of Revenue (Commercial Tax) Department,                     B
Hyderabad, Andhra Pradesh, and the Commissioner of
Commercial Taxes, Hyderabad, Andhra Pradesh, respondent
Nos. 2 and 3 respectively, restricted the zone of consideration
only to the higher officers amongst the eligible candidates viz.,
to the Joint and Additional Commissioners of the Commercial            c
Tax Department.
    5. The appellant, therefore, filed Original Application No.
1291 of 2010 before the Central Administrative Tribunal (CAT)
and prayed for the following main reliefs:-
                                                                       D
     "1.) This Hon'ble court may be pleased to declare that the
     action of the 3rd respondent in not considering the case
     of the applicant for being proposed for appointment to
     l.A.S., in terms of l.A.S. (appointment by selection)
     Regulation 1997 is illegal and is contrary to and violation
                                                                       E
     of Regulation 4 of l.A.S. (appointment by selection)
     Regulation 1997 and is also violative of Article 14, 16 and
     21 of the Constitution of India.
    2). This Hon'ble Tribunal may be pleased to declare the
    action of the 5th respondent in not forwarding the name of         F
    the applicant to 3rd respondent is illegal and contrary to
    G.O.Ms NO. 634 dated 24.8.2007 and is also contrary to
    Regulation No. 4 (1) of l.A.S. (appointment by selection)
    Regulation 1997.
     3). This Hon'ble Tribunal may be pleased to declare that          G
     applicant is entitled to be considered by the Committee
     (as constituted under Regulation 3) by 2nd respondent for
     appointment to l.A.S., by selection based on her
     outstanding merit and ability and pass such other order or
     orders as this Hon'ble Tribunal may deem fit and proper           H
    1092    SUPREME COURT REPORTS                 [2013] 9 S.C.R.


A       in the circumstance of the case."

         6. The appellant prayed for the interim order which read
    as follows:-
              "ln the above circumstances this Hon'ble Tribunal
B       may be pleased to direct the 2nd respondent not to
        convene the meeting of the Committee and not to consider
        the case of any other candidate(s) proposed by the 3rd
        respondent for appointment to l.A.S. by selection (of A.P.
        State Non-SCS Officers), pending disposal of O.A., and
c       pass such other order or orders as this Hon'ble Tribunal
        may deem fit and proper in the circumstances of the case.
              In the alternative direct the 3rd respondent to
        consider and propose the name of the applicant for
        consideration by the 2nd respondent for appointment by
D       selection to l.A.S. before the cases of other candidates are
        considered and pass such other order or orders as this
        Hon'ble Tribunal may deem fit and proper in the
        circumstances of the case."
E        7. The CAT, however, declined to grant the interim relief
    that the appellant had prayed for. The appellant therefore,
    carried the matter to the Andhra Pradesh High Court, where
    the High Court has held the restriction of the zone of
    consideration to be valid. Being aggrieved by this order, the
F   appellant has filed this appeal by Special Leave.
        8. Mr. P.S. Narshimha, learned senior counsel appeared
  for the appellant, Mr. A.T.M. Rangaramanujam, learned senior
  counsel appeared for the first respondent State of Andhra
  Pradesh, and the Principal Secretary to the Department of
G Revenue (Commercial Taxes) Andhra Pradesh, and the
  Commissioner of Commercial Tax, Andhra Pradesh. Mr. P.P.
  Malhotra, Additional Solicitor General has appeared for
  respondent No. 4 Union of India and Mr. Radhakrishnan,
  learned senior counsel for respondent No. 5 Union Public
H Service Commission.
   B. AMRUTHA LAKSHMI v. STATE OF ANDHRA                   1093
         PRADESH [H.L. GOKHALE, J.]
      9. It was pointed out by Mr. Narshimha, learned counsel       A
for the appellant, that the relevant regulations for our purpose
are the l.A.S. (Appointment by Selection) Regulations, 1997.
Clause No. 3, regulation Nos. 3 and 4 thereof, are relevant for
our purpose. Regulation 3 deals with the determination of
vacancies to be filled. Regulation No. 4 lays down the provisions   B
for the State Government to send proposals for consideration
of the committee referred to in regulation No. 3, which is the
committee constituted under regulation No. 3 of the Indian
Administrative Services (Promotion by Appointment)
Regulations 1955. These two regulations Nos. 3 and 4 read           c
as follows:-

           "3. Determination of vacancies to be filled:

          The Central Government shall, in consultation with
    the State Government concerned, determine the number            D
    of vacancies for which recruitment may be made under
    these regulations each year. The number of vacancies
    shall not exceed the number of substantive vacancies, as
    on the first day of January of the year, in which the meeting
    of the Committee to make the selection is held.                 E

         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           F
    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;
                                                                    F
    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      H
    1094    SUPREME COURT REPORTS                 (2013] 9 S.C.R.


A       of Deputy Collector in the 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.
B
              Provided that the State Government shall not
        consider the case of a person who has attained the age
        of 54 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.
c
              Provided also that the State Govt 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
D       9 of these regulations."
         10. As can be seen from these two regulations, the Central
  Govern.ment has to determine the number vacancies for which
  recruitment may be made each year, which is to be done in
  consultation with the State Government. The number of
E vacancies to be determined, shall not exceed the number of
  substantive vacancies, as on the first day of January of the year,
  in which the meeting of the selection committee is held.
  Regulation No. 4 lays down, that the State Government has to
  send the proposal for consideration of the committee. It is
F important to note that while sending the recommendations from
  Non Civil Services section, the Government has to see that (i)
  the person concerned is a person of outstanding merit and
  ability, (ii) he holds a Gazetted post in a substantive capacity,
  (iii) he has completed at least 8 years of continuous service
G on the first day of January of the year in which his case is being
  considered, (iv) the person must belong to a post which has
  been declared equivalent to the post of Deputy Collector in the
  State Civil Service, (v) the number of persons proposed for
  consideration of the committee shall not exceed five times the
H number of vacancies, and (vi) the persons to be recommended
   B. AMRUTHA LAKSHMI v. STATE OF ANDHRA                     1095
         PRADESH [H.L. GOKHALE, J.]

should not have attained the age of 54 years on the first day of      A
January of that year in which the names are considered by the
committee.
     11. As far as the equivalence with the post of Deputy
Collector is concerned, the Andhra Pradesh Government came
out with a G.O.Ms No. 634 of the General Administration               B
(Special Department) dated 24.8.2007, which provided as
follows:-
                           "NOTIFICATION

            In supersession of the order issued in G.O.Ms,            C
      General Administration (Special.A) Department, Dated:
      08.06.2006, G.O.Ms. No. 807, General Administration
      (Special A) Department, Dated: 23.12.2006, read with
      G.O.Ms No. 63 General Administration (Special A)
      Department, Dated: 08.02.2007, and in the exercise of           D
      powers conferred under sub-regulation (iii) of regulation
     4(1) of the Indian Administrative Service (Appointment by
      Selection) Regulations, 1997, the Government hereby
     declare that, all the post carry the scale of pay of Rs.
      10,845-22,995 and above (revised scales of 2005) in all         E
     the departments under the Govt. of Andhra Pradesh,
     barring the services viz. (i) State Police Service, (ii) State
    . Forest Services, and (iii) Judicial Service, are equivalent
     to the post of Deputy Collector in the State Civil Service
     for the limited purpose in regulation ibid. Officers who have    F
      completed 8 years of continuous service in the said scale
      as on 1st January of the year for which selection is made
     and are substantive in the above scale of pay as stipulated
     in IAS (Appointment by Selection) Regulations 1997, are
     eligible for consideration.                                      G

            (BY ORDER AND IN THE NAME OF THE
             .GOVERNOR OF ANDHRA PRADESH)

                                      · J.HARI NARYAN
                     CHIEF SECRETARY TO GOVERNMENT                    H
    1096     SUPREME COURT REPORTS                 [2013] 9 S.C.R.


A       12. Thus, as can be seen, sub-regulation (iii) of regulation
  4 (1), referred to above, includes all the posts which carry the
  scale of pay of Rs. 10,845-22,995 and above, and (ii) persons
  from all the departments under the Government of Andhra
  Pradesh except State Police Service, State Forest Service
B and Judicial Service are eligible to be considered. The
  notification declared such posts to be equivalent to the post of
  Deputy Collector in the State Civil Service, for the limited
  purpose specified in the Regulations. The Principal Secretary
  to the Government accordingly, wrote to the different
c departmental heads to send the full particulars of eligible Non
  Civil Services officers who fulfill the criteria. In para 4 of this
  letter he specifically stated as follows:-
              "4. The Regulations stipulate that the Non-SCS
        Officers to be considered for selection should be of
D       outstanding merit and ability. This aspect should be
        thoroughly ensured before sending the proposals. An
        Officer who is facing disciplinary enquiries and against
        whom adverse remarks are recorded in the ACR or whose
        integrity is not certified, cannot unequivocally be said to be
E       of outstanding merit and ability."
       13. The Commissioner of Commercial Tax, Andhra
  Pradesh by his letter dated 18.6.2010 sought a clarification
  whether all the eligible officers in the cadre of Assistant
  Commissioner and above would be considered as eligible, if
F they were of substantive ability, had completed the minimum
  years of service, and had not crossed the age of 54 years as
  on 1.1.2010. The Commissioner got a reply that the necessary
  instructions may be adhered to scrupulously. He subsequently
  got another letter dated 1. 7.2010 from the Principal Secretary,
G of the Revenue (CT-I) Department, that the names of officers
  from the cadre of Assistant Commissioner of Commercial
  Taxes and above, who are of outstanding merit and are eligible,
  may be forwarded. It so happened, that the names which were
  sent for consideration were, however, only of the Joint
H Commissioners and Additional Commissioners and not
    B. AM RUTHA LAKSHMI v. STATE OF ANDHRA                   1097
           PRADESH [H.L. GOKHALE, J.]
Assistant Commissioners. It is, therefore, that the appellant         A
filed the above Original Application and applied for interim relief
which came to be declined, and the order of the CAT was left
undisturbed by the High Court. This has led to the present Civil
appeal.
                                                                      B
      14. According to Mr. Narshimha, the relevant rules were
very clear, and the appellant satisfied all those requirements.
The appellant was a Gazetted Officer in a substantive capacity,
and she had completed more than 8 years of continuous service
as an Assistant Commissioner of Sales Tax which was a post            C
declared to be equivalent to the post of Deputy Collector. She
had not completed the age of 54 years, and there was no
dispute about her outstanding merit and ability. The CAT,
however, rejected the prayer for interim relief, solely on the
ground that by the time the matter was considered by the CAT,
the selection had already been completed, and therefore, the          D
interim prayer as sought could not be granted. In the High Court,
it was however contended on behalf of the Commissioner for
Commercial Tax, that if the criterion was to be applied as it is,
the number of officers to be considered from the Commercial
Tax Department itself would be more than 300. It was submitted        E
that there are in all 30 departments in the State Government,
and therefore, the Commissioner and other heads of
department were well within their power to restrict the zone of
consideration up to a particular level, from which the names may
be forwarded. It was also pointed out on behalf of the                F
Government that, if the criterion as insisted by the appellant was
applied, some of the persons of the rank of Assistant
Commissioners or Deputy Commissioners will get selected,
they will become superior to Joint and Additional
Commissioners, and will write the Annual Confidential Reports         G
of such officers who were presently holding posts higher to
them. The High Court posed the question, as to whether the
names of these junior officers should be mechanically
forwarded. In paragraph 19 of the judgment the High Court held
as follows:-                                                          H
    1098     SUPREME COURT REPORTS                   [2013] 9 S.C.R.


A                "19. In the present case, the Commissioner did not
         strictly go by rule of seniority among the eligible officers
         in the Commercial Taxes Department. The course adopted
         by him is that since a large number of officers have to be
         forwarded going by the criteria of eligibility as per
B        Regulation 4 (iii) and G.O.Ms No. 634, he restricted the
         zone or level of officers for consideration upto the level of
         Additional Commissioners and Joint Commissioners. Thus
         this is a case where the seniority rule has not been
         followed but the zone of consideration has been restricted
c        upto a particular level. ...... "
        15. Again, in paragraph 23, the High Court observed that
  just because the appellant officers satisfy the criteria and are
  eligible officers, their names could not be forwarded. This is
  because the number of vacancies to be filled was 3, and the
D number of candidates to be recommended will be 5 times that
  number i.e. 15 only. The High Court therefore, held that the
  Commissioner of Commercial Taxes had the power to restrict
  the zone of consideration in sending the names above the level
  of Additional Commissioners and Joint Commissioners. The
E Writ Petition filed by the appellant was, therefore, dismissed.
          16. It is material to note, that a counter affidavit has been
    filed on behalf Government of Andhra Pradesh, where in para
    4 it is stated as follows:-

F        "4. I say and submit that there may be large number of
         officers who will meet above eligibility but number has to
         be restricted to five times the vacancies for consideration
         from all departments put together. Commercial Taxes
         Department is one of departments in the State. There are
G        more than 30 departments in the State. There were only
         (3) vacancies. Hence maximum number that could be
         considered by the Committee was (15) for all departments
         put together. In order to have healthy competition and to
         avoid unhealthy competition, out of all eligible persons
         having outstanding merit and ability, persons having
H
         highest seniority were recommended .... "
    B. AM RUTHA LAKSHMI v. STATE OF ANDHRA                  1099
           PRADESH [H.L. GOKHALE, J.]

      17. The question for our consideration is whether such a A
restriction of the candidates to be considered, who were
otherwise eligible, was permissible under the rules. It is not
disputed that the petitioner was very much eligible for being
considered, and there were so many similar eligible
candidates. It was being portrayed by the respondents that from B
every department 300 persons were eligible, and there are 30
departments and therefore, the number would go to some 9,000
and above. Now, what is to be noted is that all that the eligible
officers concerned have, is a limited right of being considered,
though they do not have a right of promotion, as held in c
Shankarsan Dash Vs. Union of India 1991 (3) SCC 47. Mr.
Narshimha submitted that this limited right should not be denied
to the candidates like the appellant, on the basis of the ground .
that in such a case a large number of names will have to be
forwarded. That apart, he submitted that there was no
                                                                     0
substance in this justification, and it was merely a bogie. This
is·because what the State Government had to do first was to
find out as to who fulfilled the criteria. Undoubtedly, a large
number of persons will fulfill the criteria, being Gazetted Officers
with more than 8 years of service, and less than 54 years of E
age on the relevant date. They would also have to be in the
required pay scale. However, as stated in paragraph 4 of the
Principal Secretary's letter, while considering the outstanding
merit and ability, those with adverse remarks and those facing
departmental enquiries were to be excluded. Therefore, there
was no difficulty in excluding such persons on those grounds. F
Thereafter, what remained to be seen was as to who were the
persons with outstanding ability and merit amongst them? The
State Government maintains their annual appraisal reports, and.
for such selection it lays down some criteria of maintaining the
outstanding merit and ability over certain period viz. that in G
previous five years the officer must have 3 outstanding. reports,
or that in the previous 3 years the officer concerned must have
all throughout an outstanding rating etc. lt 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. H
    1100     SUPREME COURT REPORTS                    [2013] 9 S.C.R.


A After all these tests are applied, the number of persons to be
  recommended will not be very large. However, once a
  candidate comes into the zone of consideration, and satisfies
  all the requirements, including that of outstanding merit and
  ability, he cannot be told that merely because he is junior in the
B seniority, his name will not be forwarded for consideration. The
  rule requires that from amongst the outstanding officers, 15
  names are to be forwarded to the Central Government, and
  hence it is possible that amongst these 15, a junior officer may
  as well figure, depending upon the assessment of his merit. He
C cannot be eliminated merely on the ground that he is a junior
  officer, and that if selected he will write the ACRs of his
  superiors.

         18. We have got to accept that, if the rules for selection
    contain a requirement, the same has to be applied uniformly
D   and strictly, and none from the eligible group can be eliminated
    from being considered on any criteria, other than those which
    are provided in the rules. ff there is a criteria laid down for
    selection, the Administration has to confine to the same, and it
    cannot impose an additional criterion over and above whatever
E   has been laid down. If that is done, it will no longer remain an
    exercise of discretion, but will result into discrimination. It will
    mean treating similarly situated employees dissimilarly, and
    denying equal opportunity to some of them in the matter of public
    employment on the basis of a criterion which is not laid down,
F   resulting into violation of Articles 14 and Article 16(1) of the
    Constitution of India. If the rules were to provide that in the event
    of large number of persons coming into the zone of
    consideration, the names of the senior most alone will be
    forwarded, then it would have been a different situation. In the
G   absence any such restrictive rule, as in the present case, the
    decision of the respondents cannot be justified.
       19. In view of the reasons stated above, we accept the
  submissions canvassed on behalf of the appellant. The prayers
  in the O.A. filed by the appellant were negatively worded viz.
H to declare that the action of the respondents not to consider
    B. AMRUTHA LAKSHMI v. STATE OF ANDHRA                      1101
          PRADESH [H.L. GOKHALE, J.]
the case of the appellant, and not to forward her name, was             A
illegal. In a way it was a prayer for a positive declaration viz.,
that the appellant and persons situated like her were entitled
to be considered by the committee, if they are otherwise
eligible. We are of the view that, the appellant is entitled to such
a positive declaration, which order takes care of the prayer as         B
made in the Original Application.
      20. In the circumstances we allow this appeal, set-aside
the impugned judgment and order of the High Court as well as
of the Central Administrative Tribunal, modify the relief as
prayed in the O.A., and hold that the decision of the                   C
Respondents not to consider the appellant for the selection,
amounted to her being treated dissimilarly, though she was
situated similarly to the recommended officers. The decision
was violative of Article 14 and Article 16(1) of the Constitution,
since it was arrived at on the basis of a criterion which was           D
not laid down. However, the selection for the year 2011 was
over, even before the interim application in the CAT was
decided. Setting aside the selection conducted some two years
back, and asking the respondents to re-do the exercise after
considering the appellant and other similarly situated                  E
candidates, would create lot of uncertainty, in as much as the
appellant and such other similarly situated candidates, might
or might not finally succeed in the selection process. Hence, it
will not be proper now to set aside the selection of the selected
candidates. Therefore, though this declaration is being granted,        F
viz. that the appellant and persons situated like her were entitled
to be considered by the committee, no further relief in that
behalf can be granted to them. The opinion rendered by us will
have to operate prospectively in the matter of application of the
concerned rules, for the future selections. Hence, this appeal          G
is being allowed in part.
     21. We cannot, however, ignore that the appellant had to
resort to this litigation for no fault of hers. The non consideration
of her claim was totally unjust. Hence, even though for the
reasons that we have stated earlier, the appellant can not get          H
    1102    SUPREME COURT REPORTS                 [2013] 9 S.C.R.


A the relief in the nature of a direction to consider her for the
  selection which she had sought, she must get the damages for
  non-consideration on unjust grounds. This is because, the
  Commissioner for Commercial Tax had acted to reduce the
  zone of consideration, contrary to the rules, and inspite of a
B letter dated 1. 7.2010 from the Principal Secretary Revenue
  (CT-I) Department, which had clarified that the Commissioner
  may send the proposals of the eligible candidates of the cadre
  of Assistant Commissioners and above, who were of
  outstanding merit. The award of damages is necessary also
c because, a message must go down that those who are
  responsible for administration of the State cannot trample upon
  the rights of others on the grounds which are unsustainable in
  law. We, therefore, direct the State of Andhra Pradesh to pay
  the damages of rupees fifty thousand to the appellant. This will
  be over and above the litigation cost of rupees twenty five
0
  thousand, which we hereby award.

        22. The issue involved in the appeal arising from the
  second SLP (C) No. 16042/2012 is same as the one in the
  earlier matter. We have heard Mr. Jayant Bhushan, learned
E senior counsel for the petitioner in the second matter, as well
  as, the counsel for the respondents. For the reasons stated in
  the first matter, we grant leave in this matter and pass the same
  order, as in the first one. This appeal will also stand allowed,
  accordingly, with damages quantified at rupees fifty thousand,
F and cost of rupees twenty five thousand to be paid by the first
  respondent.

       23. We direct that the amounts towards the damages and _
  the cost be paid to both the appellants within six weeks from
G the receipt of a copy of this order. In. both these appeals, it will
  be open to the State Government to recover these amounts
  from the then Commissioner of Commercial Tax, and/or
  whoever were the officers responsible for the non~consideration
  of the claim of both the appellants.

H R.P.                                     Appeals partly allowed.