Central Administrative Tribunal - Lucknow
Dr. Vishram Singh Yadav vs Union Of India (Uoi) And Ors. on 9 July, 2003
Equivalent citations: 2004(3)SLJ263(CAT)
ORDER A.K. Misra, Member (A)
1. The applicant of this O.A. has prayed for quashing the selection held on 30th and 31st October, 2001 after summoning the records of proceedings of selection to the IAS. A further prayer is for issue of directions to the respondents to hold a review meeting for selection in order to consider the applicant for promotion to the IAS after taking into account the entry awarded only by the Reviewing Officer for the year 98-99. It is also prayed that the respondents be directed to include the applicant in the eligibility list for vacancies of the years 2001 and 2002 although the applicant had crossed the age of 54 years. A further prayer is for quashing the amendment in Rule 5(1) of the IAS (Appointment by Promotion) Regulations, 1955 made in the year 1997. Further it is prayed that the respondents be directed to enhance the age from 54 years as at present to 56 years for consideration for promotion to the IAS specially having regard to the enhancement in the retirement age from 58 years to 60 years.
2. Pleadings on record have been perused and learned Counsel for the parties have been heard.
3. Briefly stated the facts are that the applicant belongs to the 1972 batch of the Provincial Civil Service (E) (hereinafter referred to as PCS). The applicant was considered for promotion to the IAS by the DPC held in June 1998 and in July 1999 for vacancies as on 1st January, 1998 and as on 1st Jan., 1999 but he could not be promoted on account of non-availability of sufficient number of vacancies. In respect of vacancies as on 1st January, 2000 and as on 1st January, 2001, the Selection Committee met on 30th and 31st October, 2001. The applicant was considered for promotion in respect of vacancies as on 1st January, 2000 by this Selection Committee but could not be promoted for want of adequate number of vacancies. In respect of vacancies as on 1st January, 2001, the applicant was not considered for promotion having crossed the age of 54 years. The applicant has challenged in this 0. A. the amendment to Regulation 5(1) of the IAS (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as Regulations of 1955) made in the year 1997 whether the number of vacancies as on 1st January of the year in which the meeting of the Selection Committee is held is to be taken as total vacancies available in that particular year for promotion of officers belonging to the PCS to the IAS. The applicant has also challenged the upper age limit of 54 years beyond which no officer belonging to the PCS can be considered for promotion to the IAS. Further the admitted factual position is that the Government of India by notification dated 31.12.1997 altered the IAS cadre strength of U.P. by making provision for 34 additional promotional posts for the PCS officers and non-state Civil Service Officers. By a subsequent circular of 11.2.92, the Government of India split the enhanced promotion posts into three parts to be filled three phases i.e. in the year 1998, 1999 and 2000. Although the applicant has in his pleadings contested the decision of the Government of India for splitting up 34 additional posts in three years, he has not challenged in the relief clause the notification of 31st December, 1997 and of 11.2.98 whereby 34 additional posts were created for State Civil Service Officers for promotion to the IAS cadre and whereby the additional promotional posts were split in three years i.e. in 1998, 1999 and 2000.
4. In so far as the challenge to spliting up in three years of the additional 34 posts created by the Government of India is concerned, the issue is squarely covered by the decision in O.A. Nos. 3/2000, 257/2000, 269/2000, 52/2000, 25/2001, 121/2001 and 184/2001 which were decided by a common order dated 25.11.2002 in which a finding was recorded by this Tribunal that spliting up of the additional posts in different years was justified as such action of the Government of India cannot be termed as illegal. While taking this view, this Tribunal referred to the judgment and order passed earlier by this Tribunal on 27.5.99 in the case of Pradeep Chandra and Ors. v. Union of India (O.A. No. 160/98) which was challenged before the Lucknow Bench of the Hon'ble High Court of Allahabad and the said writ petition filed before the Hon'ble High Court was still pending. However, by interim order dated 7.11.2001 passed in W.P. No. 1550 (SB) 2001 by the Hon'ble High Court against the decision of this Tribunal in O.A. No. 160/98 in the case of Pradeep Chandra and Ors. v. VOI, it was directed that the case of the applicants of that O.A, shall be considered only against vacancies of 1998 subject to fulfilment of the required qualifications including the age at the relevant time. Further while upholding the legality of the circulars dated 11.2.98 and 31st December, 1997 in the bunch of O.As. decided on 25th November, 2002 in the case of S.P.S. Chauhan and Ors. v. U.O.I, and Ors. by this Tribunal, reference was also made to the decision of the Allahabad Bench of this Tribunal in O.A. No. 203/99 in re Dr. Rajesh Mohan Srivastava v. U.O.I. which involved the same question of spliting up of vacancies in different years in respect of non-State Civil Services officers. Though this O.A. was decided by the Allahabad Bench of this Tribunal in favour of the applicants, the decision was challenged in the Hon'ble High Court of Allahabad (Lko Bench) and Hon'ble High Court in their judgment dated 7th March, 2002 passed in W.P. No. 732/2000, W.P. No. 780/2000 and W.P. No. 1720- (SB) /2000 held that the view expressed by the Allahabad Bench of this Tribunal was not correct. The Hon'ble High Court clearly held that the bifurcation of the posts in different years by the Government of India can not be termed as illegal or invalid. The judgment of the Allahabad High Court dated 7th March, 2002 was challenged in SLP No. 13229-13231 (Civil) 2002 before the Hon'ble Supreme Court and the said SLPs were dismissed by the Apex Court by order dated 29th July, 2002. Thus the finding of the Allahabad High Court to the effect that bifurcation of the vacancies in different years has validly been made was in effect affirmed by the Apex Court also. Therefore, the contention of the applicant that spliting up of 34 additional posts in three different years i.e. in 1998, 1999 and 2000 was not called for has to be rejected as unsustainable.
5. The relief claimed in respect of enhancement in the outer age limit of 54 years to 56 years for consideration for promotion to the IAS from PCS also formed the subject matter of a bunch of O.As. (O.A. Nos. 3/2000, 257/2000, 52/2000, 25/2001, 121/2001, 184/2001), decided by this Tribunal on 25.11.2002 and it was held that fixation of prescribed age limit of promotion from PCS to I AS is purely a matter of policy which is framed by the Government after due consideration of all the aspects. Accordingly it was held that no interference by this Tribunal was called for in such a policy decision. Following the judgment and order passed by this Tribunal on 25.11.2002 in a bunch of O.As. in the case of S.P.S. Chauhan and Ors. v. UOI and Ors., we hold that there is no justification for interfering with the policy decision of the Government and for issue of directions to raise the outer age limit from 54 to 56 years for considering PCS officers for promotion to IAS. The relief claimed in this regard therefore cannot be granted to the applicant of this O.A.
6. In so far as the amendment made in 1997 to Rule 5(1) of the Regulations of 1955 is concerned, it may be stated that prior to the amendment Rule 5(1) provided that the number of members of the State Civil Service to be included in the list shall be calculated as the number of substantive vacancies anticipated in the course of a period of 12 months commencing from the date of preparation of the list plus 20% of such number or two whichever is greater. By amendment in Rule 5(1) of the Regulations of 1955 made in the year 1997, it was provided that the number of posts of the State Civil Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned and shall not exceed the number of substantive vacancies as on the 1st day on January of the year in which the meeting is held. Thus by the amendment instead of taking into account the anticipated vacancies of 12 months, the vacancies existing as on 1st day of January of the relevant year were to be taken into account for considering the eligible PCS officers for promotion to the IAS. It cannot be disputed that the Regulations of 1955 are statutory in character and unless it is shown that they are ultra vires of the Constitution of India, they cannot be quashed. Since it has not been shown that the amendment to Rule 5(1) of the Regulations of 1955 is ultra virus, we do not find any justification in quashing the amendment made to Rule 5(1) of the Regulations of 1955. Therefore, no relief can be granted to the applicant on this score also,
7. It was further submitted on behalf of the applicant that the constitution of the Selection Committee which met on 30th and 31st October, 2001 and which considered the applicant for promotion from PCS to IAS was not in order in as much as in place of Agriculture Production Commissioner or Commissioner and Secretary Planning or Sr. Most Secretary, one Sri P.C. Sharma Principal Secretary was included in the Selection Committee who was not the senior most Secretary. It was submitted in this regard that since the Agriculture Production Commissioner was very much available and was also senior to Sri P.C. Sharma the said Sri P.C. Sharma could not have been included as the senior most Secretary in the Selection Committee which met on 30th and 31st October, 2001. Regulation 3 of the Regulations of 1955 provides for a Selection Committee consisting of Chairman of the UPSC or any other member of the UPSC if the Chairman is not available and in so far as the State of U.P. is concerned, the following officers:
(a) Chief Secretary to Government of U.P. (b) Chairman, Board of Revenue. (c) Agricultural Production Commissioner or Commissioner and Secretary (Planning) or Senior most Secretary. (d) Sr. Most Divisional Commissioner and (e) Two nominees of the Central Government not below the rank of Joint Secretary.
Even if it is conceded that Sri P.C. Sharma was not the senior most Secretary of the Government of U.P. but was inducted in the Selection Committee, that by itself would not in any manner make the constitution of the Selection Committee illegal or invalid as the Selection Committee was presided over by the Chairman of the UPSC or a Member of the UPSC representing the Chairman, and the other members constituting the Selection Committee were also nominated in accordance with Regulation 3 of the Regulations of 1955. Besides no prejudice was caused to the applicant merely by induction of a member of the Selection Committee who did not happen to be the senior most Secretary of the State. Therefore, the recommendations of the Selection Committee which met on 30th and 31st October, 2001 cannot be challenged on the ground that the Selection Committee was not validly constituted.
On behalf of the respondents it was submitted that the O.A. is liable to be dismissed for non-joinder of necessary parties as the officers likely to be affected in case the applicant is considered for promotion from PCS to IAS and is ultimately promoted to the IAS against vacancies for the year 1999 or for the year 2000 have not been made parties. It was submitted in this regard that some of the officers likely to be affected in the event the applicant was promoted to the IAS had necessarily to be impleaded as necessary parties. On behalf of the applicant it was argued that there was no necessity for impleading any officer who was promoted to the IAS against vacancies for 1999 or against vacancies for the year 2000 because the only claim of the applicant is against non-inclusion of his name in the select list and on behalf of the applicant it has no where been stated that he is claiming seniority over his colleagues nor has any averment been made to the effect that juniors have been promoted to the exclusion of the applicant. I have considered the submissions made in this regard on behalf of the parties and I am of the opinion that the O.A. does not suffer from the omission to implead necessary parties. In his pleadings the applicant has not claimed seniority over any officer who has been selected for promotion to the IAS either against vacancies of 1999 or against the vacancies of 2000. Further there is no relief claimed towards seniority and therefore, no officer promoted against vacancies of 1999 or against vacancies of 2000 is likely to be affected in case the applicant is included in the select list prepared in respect of vacancies for the year 1999 or for the year 2000. Accordingly we take the view that the O.A. cannot be rejected for non-joinder of necessary parties.
8. Further the plea has been raised on behalf of the respondent No. 3 i.e. State of U.P. that the O.A. is not cognizable by this Bench of the Tribunal and is cognizable only by the Allahabad Bench of this Tribunal, in view of the fact that the applicant at the relevant time of filing of the O.A. was posted as Vice Chairman of the Aligarh Development Authority. On behalf of the applicant, the averment made in Para 4 of the C.A. filed by respondent No. 3 was denied and it was submitted during the course of arguments, that the O.A. is cognizable by the Lucknow Bench in view of the fact that a part of the cause of action arose in Lucknow because the Selection Committee which considered the applicant for promotion to the IAS against vacancies for the year 1999 and for the year 2000 met in Lucknow. In this regard our attention was drawn to Clause (ii) of Rule 6 of the CAT (Procedure) Rules, 1987 which provides that an application can be filed with the Registrar of the bench where the cause of action wholly or in part has arisen. Since the Selection Committee for promotion of State Civil Service Officers to the IAS met in Lucknow for drawing of a panel against vacancies for the year 1999 and for the year 2000, it was submitted that the cause of action at least in part if not wholly arises in Lucknow. Having heard Counsel for the parties, we are of the opinion that the jurisdiction of the present O.A. vests with the Lucknow Bench of this Tribunal, as cause of action has arisen in Lucknow.
9. On facts it was submitted that the applicant was considered for promotion from PCS to IAS by the Selection Committee which met in June 1998 for considering promotion of the PCS officers to the IAS in respect of vacancies as on 1,1.98, and further he was considered for promotion in July 1999 in respect of vacancies as on 1.1.99. In respect of vacancies for the year 2000 and for the year 2001, the applicant was considered by the Selection Committee which met on 3Qth October, 2001 and 31st October, 2001. For the year 1998, six PCS officers were included in the select list against six vacancies in the promotion quota in the State cadre as determined by the Central Government. The applicant was not considered by this Selection Committee as his name did not fall within the zone of consideration of the select list of 1998. Further for the year 1998, no officer junior to the applicant was considered for promotion to the IAS. For the year 1999, there were 18 vacancies and accordingly 18 PCS officers were included in the select list in the promotion quota of the State cadre. The name of the applicant was, considered by the Select Committee which met in July 1999. Since the applicant was at S. No. 34 in the zone of consideration, he could not be promoted against 18 vacancies although he was assessed by the Selection Committee as Very Good. In respect of vacancies for the 2000, a total number of 13 vacancies were determined by the Central Government for promotion to the IAS which included one vacancy reserved for Sri O.S. Deshwal who was appointed to the IAS on 28.12.2001. Thus in effect for the year 2000, there were only 12 vacancies and the applicant was at S. No. 16 in the zone of consideration. Since the total number of vacancies for the year 2000 was only 12 and the applicant for this year was graded only as 'Good' by the Selection Committee, he could not be included in the select list drawn up in respect of vacancies for the year 2000 also. In respect of vacancies for the year 2001, the applicant was not considered by the Selection Committee as he had crossed the age of 54 years as on 1.1.2001.
10. The main challenge by the applicant in this O.A. is against non-inclusion of his name in the select list in respect of vacancies for the year 2000. In this regard, it was submitted that in respect of vacancies for the year 1999, the applicant was graded as 'Very Good' on the basis of his ACRs upto the year 1997-98. In respect of vacancies for the year 2000, the applicant was graded only as 'good' on the basis of his ACRs upto the year 1998-99. As already stated for the year 2000, there were 12 vacancies and the applicant was at S. No. 16 in the zone of consideration. The contention of the applicant is that ACR for the year 1998-99, contained adverse remarks recorded by reporting officer to which the Reviewing Officer did not agree and substituted the adverse remarks in every column by outstanding remarks. The case of the applicant is that adverse remarks of the Reporting Officer having been substituted as outstanding by the Reviewing Officer, the adverse remarks as recorded by the reporting officer lost all relevance and only the remarks of the Reviewing Officer which were outstanding had to be taken into account by the Selection Committee specially in the light of the interim order in Writ Petition No. 636 of 2001 passed by the Hon'ble High Court of Allahabad (Lucknow Bench) operative portion of which is reproduced below:
"In the mean the annual confidential remarks for the year 1998-99 given by the accepting authority will not be read while considering the case of the petitioner for promotion subject to further orders of this Court."
Thus the case of the applicant is that the adverse remarks of the Reporting Officer having been substituted by outstanding remarks given by the Reviewing Officer and an embargo having been placed by the High Court against reading the remarks given by the accepting authority, the remarks to be considered were only those recorded by the Reviewing Officer which were outstanding and hence if the applicant was graded as 'Very Good' in respect of vacancies for the year 1999, he could not have been graded by any stretch of imagination as only 'good' for the year 2000. In support of the contention that in ACR for the year 1997-98, the applicant was graded as 'Very Good' by the Selection Committee, reference has been made to Para 4 of the counter filed by the respondents No. 4 in W.P. No. 636/2001 (SB) wherein it was stated as under:
"Further in the year 1999 the name of the petitioner was at S. No. 34 and this time also he was rated Very Good but due to non-availability of vacancy, the petitioner could not be promoted."
11. Thus the undisputed position according to the applicant is that he could not have been graded as 'good' for the year 2000 in the light of the fact that he was admittedly graded as Very Good for the year 1999 and in the subsequent ACR for the year 1998-99 remarks of the Reviewing Officer which were outstanding alone had to be read in view of the stay granted by the Hon'ble High Court against remarks recorded by the accepting authority. There is also no doubt that the ACR for the year 1998-99 has to be taken into account for grading the applicant for promotion to the IAS against vacancies for the year 2000 whereas his ACRs upto the year 97-98 alone will be taken into account for purposes of grading the applicant in respect of vacancies for the year 1999. It is further contended on behalf of the applicant in Paragraphs 6 and 7 of the supplementary Affidavit filed along with the application for summoning the original records (M.P. No. 2688/2002) that in respect of vacancies for the year 2000, three officers Shri Hardev Singh, Sri Shankar Lal Jaiswal and Sri Sohan Lal have been considered without any justification for promotion to the IAS because two of these three officers had opted for the scale of Rs. 22,400-24,500 and those who opt for this pay scale are not entitled for consideration for promotion to the IAS as would be evident from Annexure No. 6 to the O.A. Further Sri Sohan Lal had also declined to join the IAS. Since two officers had opted for the pay scale of Rs. 22,400-24,500 instead of promotion to the IAS, and third officer had declined to join IAS, promotion order in respect of these three officers promoting them to the IAS should not have been issued. Annexure No. 6 of the O.A. dated 28th September, 2000 issued by the Government of U.P., appointments Department, shows that option was called for from the PCS officers eligible for promotion to the IAS requiring them to give their option either for promotion in the scale of Rs. 22,400-24,500 or for promotion to the IAS cadre. This letter of 28th September, 2000 issued by the Appointments Department, Govt. of U.P. provides in the last paragraph that those who opt for the higher scale of Rs. 22,400-24,500 will forfeit their right for promotion to the IAS cadre. According to the applicant since Hardev Singh and Sri Shankar Lal Jaiswal opted for the higher scale, they could not have been promoted to the IAS apart from Sri Sohan Lal who had declined to join the IAS.
12. It is further averred by the applicant in Para 8 of the Supplementary Affidavit filed along with application for summoning the original records (M.P. No. 2668/2002) that for the year 2000, there were 13 vacancies but only six persons have joined leaving 7 unfilled posts which included 3 posts against which Sri Hardev Singh, Sri Shankar Lal Jaiswal and Sri Sohan Lal were wrongly promoted to the IAS cadre. Thus according to the applicant since he was at S. No. 16, he would definitely stand a clear chance of promotion if the 7 unfilled posts for the year 2000 are filled up by giving promotion to the 7 PCS officers in the IAS cadre after excluding Sri Hardev Singh, Sri Shankar Lal Jaiswal and Sri Sohan Lal. In his representation dated 6.7.2002 annexed as Annexure No. SA-3 to the Supplementary Affidavit it has been stated that Sri Girdhari Lal was the last candidate promoted to the IAS cadre to the basis of gradation list of PCS officers and the applicant's name is at S. No. 3 after Sri Girdhari Lal. Sri Bansi Lal had crossed the age of 54 years as on 1.1.2000 and Sri Surendra Veer Singh Saxena was the second in the eligibility list and the applicant's name was just next to the name of Sri Saxena. Thus it is submitted that the applicant stands a very fair chance of getting promoted to the IAS cadre if the officers who opted for the higher scale of Rs. 22,400-24,500 are excluded and the remaining vacancies are also filled up.
13. On behalf of the respondents, the submissions made by the applicant as stated in the immediately preceding paragraph have not been specifically controverted. In the counter reply filed on behalf of the respondent No. 2, it has been stated in Para 7.4 that the cases of the PCS officers for promotion to the IAS cadre have to be considered in order of seniority in the State Civil Service in accordance with Regulation 5(2) of the Regulations of 1955. It is stated that the names of Sri Hardev Singh and Sri Shanker Lal Jaiswal figured at S. Nos. 7 and 10 in the eligibility list of 2000 and hence they were considered for promotion to the IAS cadre by the Selection Committee which met on 30th and 31st October, 2001. Reference was also made in this regard on behalf of the respondents to the decision in the case of UOI v. M.L. Capoor and Ors., 1973(2) SLR 824 in which the Hon'ble Supreme Court held that the inclusion of the name of a member of service in the select list for a particular year will not entitle him for being (sic) in the select list for the succeeding year also as a matter of course. It is submitted that in accordance with the provisions of Regulation 5 (5) of the Regulations of 1955, the Selection Committee prepares a list by including the names of eligible officers first from those classified as 'outstanding' and thereafter from amongst those classified as 'Very Good' and the officers included in the category of 'outstanding' and those included in the category of 'Very Good' retain their inter-se seniority in their category in the State Civil Service. According to the respondents this procedure has also been upheld by the Hon'ble Supreme Court in the case of R.S. Dash v. UOI and Ors., AIR 1987 SC 593= 1987(2) SLJ 56 (SC). It was thus submitted that as per this procedure duly approved by the Hon'ble Supreme Court, if the name of a junior officer finds place in the 'outstanding' category, he would be placed higher in the select list as compared to a Sr. Officer who has been categorised only as 'Very Good'. Thus a junior officer having a higher grading would supersede a senior officer. It was held by the Apex Court in the case of R.S. Dash v. UOI (supra) that where selection is made on merit for promotion to a higher service, the selection of a junior officer in preference to his senior does not strictly amount to supersession. It was also held in this case that for such supersession the Selection Committee is also not required to record any reasons. However, in the case of applicant, there is no denial on behalf of the respondents of the averment made on behalf of the applicant that Sri Hardev Singh and Sri Shanker Lal Jaiswal having opted for the higher scale had been wrongly promoted and Sri Sohan Lal having declined promotion was also wrongly promoted. On behalf of the respondents it has been averred in Para 7.3.3 of the main counter reply that while assessing the applicant's suitability for promotion to the IAS, the Selection Committee had taken due cognisance of the order dated 18th October, 2001 passed by the Hon'ble High Court (Lucknow Bench) in W.P. No. 636/2001 (SB).Thus the Selection Committee in effect according to the respondents did not read the confidential remarks given by the accepting officer for the year 98-99 while considering the applicant's case for promotion.
14. On behalf of the respondents reference was also made to the following decisions:
1. Nutan Anand v. UOI and Ors., (1996) 2 SCC 488.
2. Durga Devi and Anr. v. State of Himachal Pradesh, 1997 SCC (L&S) 982.
3. UPSC v. H.L. Dev and Anr., AIR 1988 SC 1069=1988(3) SLJ 610 (SC).
4. State of M.P. v. Srikant Chapekar, JT 1992(5) SC 633=1992(3) SLJ 73 (SC).
5. Dalpat Aba Saheb Solunki v. B.S. Mahajan, AIR 1990 SC 434.
6. Smt. Anil Katiyar v. UOI and Anr., 1997(1)SLR 153=1997(1) SU 145 (SC).
In all these decisions cited on behalf of the respondents the Hon'ble Supreme Court held that the Tribunal cannot sit in judgment like an Appellate Authority, over the assessment made by the Selection Committee of the comparative merit of the candidates considered for promotion. It was also held in these case by the Apex Court that the only direction which can be given by the Tribunal/Court is a reconsider the case of an officer in accordance with law. We are in respectfully agreement with the ratio of the decisions cited on behalf of the respondents.
15. The submissions made on behalf of the respondents and also on behalf of the applicant have been considered by us. In this case by order dated 29.5.2003, respondents No. 2 and 3 were required to produce the records of the DPC for vacancies of the year 2000 held on 30th and 31st October, 2001 and the relevant ACR folders of the applicant for perusal of the bench. However, even after waiting for about 40 days, the records have not been produced so far by the respondents. An M.P. has been filed on behalf of respondent No. 2 by his learned Counsel Mr. A.K. Chaturvedi on 30.6.2003 i.e. after expiry of one month from the date on which the order dated 29.5.2003 was passed. In this M.P. it is stated that since the Counsel was ill from 3rd June, 2003 to 6th June, 2003, the copy of the order of this Tribunal dated 29.5,2003 could be sent to UPSC only or 8th June, 2003. Subsequently on 27th June, 2003, a reminder was sent to the UPSC by the learned Counsel for respondent No. 2; In the M.P. filed on 30.6.2003, it is also stated that since the record has to come from New Delhi, it is taking time. By this M.P. a request has been made that time for production of records from the UPSC be extended upto 15th July, 2003.
15A. The first letter to the UPSC was sent by learned Counsel for the respondent No. 2 on 8th June, 2003 which could have gone on 30th May, 2003 or at least on 2nd June, 2003 as the order for producing records was dictated in open Court on 29.5.2003. The period of two weeks for producing records expired on 13th June, 2003. The reminder after the original letter of 8th June, 2003 was sent to UPSC by the learned Counsel for the respondent No. 2 only on 27th June, 2003 i.e. 2 weeks after the expiry of the time allowed. Thus the reminder letter was also very much delayed. In the reminder letter dated 27th June, 2003 sent to the UPSC in Para 2, it is stated as under:
"I am sending this reminder to you so that the records may be produced positively before the Hon'ble Tribunal by 15th July, 2003."
It is not understood why and how the learned Counsel for the respondent No. 2 in his reminder letter of 27th June, 2003 requested the UPSC, on his own, to sent the records by 15th July, 2003. In fact the UPSC could have been requested to send the records at an early date say, within a week to facilitate pronouncement of the judgment by this bench which had reserved the judgment on 29th May, 2003. In that case the records could have been received latest by 4th July, 2003. However, after going through the pleadings on record and bearing in mind the submissions made during oral hearing on behalf of the parties, we are of the opinion that this O.A. can be decided even in the absence of the records. Accordingly we are deciding the O.A. in the absence of records. In the circumstances, M.P. No. 1342/2003 is rejected.
16. The factual position as stated on behalf of the applicant in Paras 6 and 7 of the Affidavit accompanying the M.P. for summoning of records that in response to the option letter of 28.9.2000, two officers of the State Civil Service who were senior to the applicant namely Sri Hardev Singh and Shankar Lal Jaiswal had given their option for the higher pay scale of Rs. 22,400-24,500 and hence they could not have been considered for promotion to the IAS cadre is not specifically denied. There is also no specific denial of the applicant's contention that Sri Sohan Lal had declined promotion to the IAS. The Selection Committee which met on 30th and 31st October, 2001 much after the option had been exercised by these officers wrongly included their names in the select panel. Since these officers were senior to the applicant in the State Civil Service and since the applicant was at Sr. No. 16, he would automatically move up by three places if these three officers had not been considered and included in the select list. Besides as observed above in Para 12 of this order, Sri Girdhari Lal was the last candidate promoted from PCS to IAS against vacancies for the year 2000. According to the applicant, he would stand a fair and clear chance of promotion to the IAS as his name was third after Sri Girdhari Lal and the officer immediately below Sri Girdhari Lal was Bansi Lal who had attained the age of 54 years as on 1.1.2000, and hence could not have been considered.
17. In the light of the discussion made in Paragraph Nos. 9 to 17, we dispose of this O.A. with the following directions;
(1) A review DPC in respect of vacancies for the year 2000 shall be convened by the respondents and the suitability of the applicant for promotion to the IAS against the vacancies for the year 2000 shall be reconsidered by the review DPC by not including the names of Sri Hardev Singh and Shanker Lal Jaiswal in case it is found that they had opted for higher scale of 22,400-24,500. Similarly the review DPC shall also not consider Sri Sohan Lal for promotion to IAS in case it is found that he had declined promotion to the IAS.
(2) The review DPC shall also not read adverse remarks given by the accepting authority in the ACR for the year 98-99 as directed by the Hon'ble High Court by order dated 18.10.2001 passed in W.P. No. 636/ 2001 (SB).
18. The above directions shall be complied with within a period of two months from the date of receipt of this order.
19. The O.A. is disposed of in terms of the directions given above in Paragraph No. 18 without any order as to costs.