Central Administrative Tribunal - Delhi
K.P. Jain, Ips vs Union Of India (Uoi) on 11 December, 2006
Equivalent citations: 2007(2)SLJ328(CAT)
ORDER Meera Chhibber, Member (J)
1. By this O.A., applicant has sought the following relief:
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(ii) expunge the adverse entries/downgrading in the relevant ACR's of applicant;
(iii) direct the respondent to review the case of the applicant under Clause 5.7 of the IPS deputation policy dated 06.04.2000, and thereupon consider the applicant for empanelment as ADGP/DGP, Government of India;
(iv) pass any other order(s), which this Hon'ble Tribunal may deem just and equitable in the facts and circumstances of the case.
2. At the outset we would like to clarify that we had reserved this case on 31.10.2006 when we were informed that a batch of writ petitions are pending before the Hon'ble High Court of Delhi, on the question whether downgrading of ACRs needs to be communicated or not. Therefore, we were awaiting the outcome of those writ petitions. However, till date neither hearing is complete in those cases nor any final decision has been taken in those cases. On the contrary, Counsel for the respondents has produced the judgment dated November 16, 2006 given in Writ Petition (C) No. 7044/2002 in the case of S.K. Soni v. Union of India and Ors. by another bench of Hon'ble High Court wherein it is observed that if remarks are recorded by the Reporting Officers whereby certain aspects of working of the petitioner are appreciated while pointing out his draw backs, the said remarks cannot be said to be adverse in nature. In this case, it was also held that there was no occasion for communicating any adverse remarks to the petitioner as they were not adverse in nature. In view of above, we do not think any purpose would be served by keeping this matter pending any longer, therefore, we have applied our mind to the various aspects of the matter and are deciding it on merit.
3. It is submitted by the applicant that he is an IPS Officer of 1971 Batch (Tamil Nadu Cadre). He was posted in Intelligence Bureau ('IB') on deputation as Assistant Director in May, 1983 and worked there for a long period of 22 years till 2005 in various capacities. All his ACRs are 'Outstanding' and 'Very Good', which is also apparent from the fact that he was even awarded Indian Police Medal for meritorious service in the year 1990. He was also found fit by the Ministry of Home Affairs (MHA) for being inducted into hardcore of the IB as per the O.M. dated 06.4.2000 whereby MHA had introduced a new deputation policy for induction of officers into the hardcore of the IB through a High Level Committee with the approval of the Cabinet Committee on Appointments.
4. His grievance is that from the year 1996, his ACRs were downgraded, as a result of which when the Selection Committee met for considering the IPS Officers of 1971 batch for empanelment as ADGP in the Centre in August, 2003, applicant was not empanelled. Being aggrieved, he gave a number of representations at different levels, including the Cabinet Secretary and even the Deputy Prime Minister but no review was carried out as ought to have been done in terms of Para 5.7 of the deputation policy, as laid down in O.M. dated 6.4.2000 (page 13 at 16).
5. Selection Committee met again in February, 2006 to consider the next batch i.e. 1972 batch of IPS Officers for empanelment as DGP in the Centre but the claim of applicant was over looked even at this stage because of his downgrading in ACRs, therefore, he had no other option but to file the present O.A.
6. Counsel for the applicant submitted that this case if fully covered by the judgment of Hon'ble Supreme Court in the case of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. , wherein it was held that if there is extreme variation in gradation from one year to the next year, it may reflect an adverse element, which needs to be communicated and reasons for change are also required to be recorded on personal file of the officer and he needs to be informed about it in the form of an advice. Not having done so, the recommendations of the Selection Committee get vitiated. In fact, those ACRs ought to have been ignored for considering the applicant for empanelment as ADGP and DGP in the Centre.
7. Counsel for the applicant also relied on O.M. dated 19.4.2005, Para 2 (iv) of which reads as under:
Where the authority has upgraded/downgraded the overall grading without giving sufficient reasons, the Government shall treat such an exercise as non-est invalid. General terms, such as "I agree or disagree with the Reporting officer/ Reviewing Officer" used by the Reviewing/Accepting Authority shall not be construed as sufficient reason for upgrading/downgrading the overall grading given by the Reporting Authority/Reviewing Authority.
Counsel for the applicant heavily relied on this O.M. to state that since in case of applicant, his ACRs were downgraded without giving any reasons, those ACRs were to be treated as non-est/invalid and his case needs to be reconsidered by holding a review DPC. He has also relied on certain observations made in the case of State of U.P. v. Yamuna Shanker Mishra and Anr. , to state that the Reporting/Reviewing Officer should confront the officer reported upon before forming an opinion on the adverse remark whereas in the instant case no draw backs were brought to the notice of applicant nor any memo was given to him to point out he requires improvement in a particular sphere, therefore, there is no justification to either downgrade his CRs or not to select him for empanelment as ADGP or DGP for the Central deputation.
8. Respondents, on the other hand, have opposed this O.A. They have submitted that applicant belongs to Tamil Nadu Cadre, therefore, his promotional avenues are available in the State. As far as his empanelment in the Centre is concerned, it cannot be sought as a matter of right, as it is dependent on selection, based on various factors and not on the basis of ACRs alone. In any case, a person only has a right of consideration and applicant was duly considered for empanelement as ADGP in the Centre along with his batch-mates in the year 2003 but he was not fund fit by the Selection Committee. His case was reviewed on receipt o two more ACRs under Clause 5.5. of the deputation policy, as mentioned above but in spite of it, he was again found 'unfit' by the Selection Committee. The Court cannot sit in appeal over the recommendations made by the High Powered Selection Committee, especially when no mala fides are alleged against the Selection Committee.
9. They have also submitted that applicant's case was not covered under Clause 5.5 of the deputation policy because such special reviews are made only in cases of officers whose ACRs undergo material change as a result of acceptance of a representation made against adverse remarks. In the instant case, neither adverse remarks were made nor communicated nor expunged on representation made by the applicant, therefore, the said request is absolutely misconceived. In fact, applicant's grievance is non-selection to the central deputation and he is making out a case as if it is a normal promotion in the State, which is absolutely based on wrong notion. The central deputation posts are ex-cadre deputation posts, which cannot be equated with the normal promotion posts. In fact, the career prospects of IPS Officers are mainly available in their own cadre whereas empanelment for the officers to be brought on central deputation is done by way of selection only of such officers, who are considered to be suitable for appointment in the Central Government by the Selection Committee. Failure to be empanelled as such, in the Central Government, cannot be taken as a stigma.
10. As far as the O.M. dated 19.4.2005 is concerned, they have explained that by the O.M. dated 30.11.2005, it was clarified that O.M. dated 19.4.2005 shall have prospective effect. In the instant case, since applicant's case was considered for empanelment in the year 2003, therefore, he cannot claim benefit of O.M. dated 19.4.2005. Counsel for the respondents also submitted that adverse remarks are already explained in the case of Govt. of Andhra Pradesh v. Madan Lal, IPS and Anr. 2003(1) ATJ 645 to mean a remark, which indicates the defects or deficiencies in the quality of work or performance or conduct of an officer but does not include any word or words in the nature of Counsel or advise to the officer. As per counseling of the Reviewing Authority, gradation given by him as 'average' cannot be treated as an adverse remark. Therefore, there was no need to communicate the same to the officer concerned. He also heavily relied on the judgment of U.P.S.C. v. K. Rajaiah and Ors. . He also submitted that the judgment of U.P. Jal Nigam (supra) does not hold the field any longer as in the subsequent judgment given by the Hon'ble Supreme Court in the case of Union of India v. Major Bahadur Singh 2006 SCC (1) 368, it has been held not to be having universal application in all the cases. He also relied on Swamy' s Compilation on Establishment and Administration (page 787) under the Chapter "Confidential Reports" (para 20), to show that it is only the adverse entries in the Confidential Reports of Government Service based on performance as well as basic qualities and potential, which need to be communicated to the officer concerned and grading is not required to be communicated unless, of course, it is below average. He also relied on Office Memorandum dated 28.3.2006 issued by Ministry of Personnel, PG & Pensions, Department of Personnel and Training, wherein it has been clarified that overall grading given in the ACR should not be communicated even when the grading given is below the benchmark prescribed for promotion to the next higher grade and the overall grading recorded in the ACR is also not to be changed in any way even after the expunction of the adverse remarks either fully or partially by the Competent Authority. He thus emphasized that grading is never required to be communicated. He also produced the relevant records for Court's perusal, as directed by the Court and judgments relied upon by him.
11. We have heard both the Counsel and perused the pleadings as well as original records. Counsel for the applicant submitted that applicant's case ought to have been reviewed under Clause 5.7 of the IPS Deputation Policy dated 6.4.2000 for empanelment as ADGP/DGP, Govt. of India. However, perusal of the above said Deputation Policy annexed at page 13 of the O.A shows that para 5.7 is not event attracted in case of applicant as it reads as follows:
A special review may be made in the case of any officer whose CR undergoes a material change as a result of representation being accepted, against recording of adverse comments in his ACR.
In the instant case, neither any adverse remarks were communicated to the applicant nor on any representation, made by the applicant, any adverse remarks were expunged, therefore, this para does not get attracted. We are, therefore, satisfied that the request made by the applicant is absolutely without any merit. The same is accordingly rejected.
12. Counsel for the applicant next contended that this case is fully covered by the judgment given by the Hon'ble Supreme Court in the case of U.P. Jal Nigam (supra). However, by the subsequent judgment in the case of Major Bahadur Singh (supra), Hon'ble Supreme Court, after referring to the judgment in the case of U.P. Jal Nigam as well as in the case of Yamuna Shanker Mishra (supra) observed as follows:
...As has been rightly submitted by Counsel for the appellants, U.P. Jal Nigam's case has no universal application. The judgment itself shows that it was intended to be meant only for the employees of the U.P. Jal Nigam only.
It is thus clear that the judgment given in the case of U.P. Jal Nigam was only for the employees of U.P. Jal Nigam and is not to be taken as the judgment applicable in each and every case. It was also held in the above case that the 'word' advisory is not necessarily adverse. Therefore, reliance placed on U.P. Jal Nigam's case does not hold the field as on date.
13. The grievance of applicant in this case is non-empanelment as ADGP/DGP in the Central Government as if it is a normal promotion whereas the fact remains that the normal promotion for IPS Officers are available in their own respective States. Only such of the officers are empanelled for being brought on deputation to the Centre at the level of ADGP/ DGP, who are found to be having some extra skills as suited for the requirement of the post in the Central Government. At this juncture, it would be relevant to refer to the judgment of Hon'ble Supreme Court in the case of Union of India and Anr. v. Samar Singh and Ors. .
14. In this case, respondent was not empanelled as Secretary to the Government of India by a Special Committee consisting of the Cabinet Secretary, the Principal Secretary to the Prime Minister and the Home Secretary in the year 1993 even though he was empanelled as Additional Secretary to the Government of India in the year 1990. It was against his non-inclusion in the said panel that he had filed initially O.A. before the Tribunal which was allowed, on 14.5.1996 by giving direction to the respondent therein to consider his suitability for empanelment and appointment on the post of Secretary to the Government of India or equivalent post afresh as on the date on which respondents 2 to 10 were considered. The matter was carried to the Hon'ble Supreme Court. In the said case, Tribunal had observed on the perusal of the ACRs that after promotion to the post of Additional Secretary in the year 1990, the respondent therein had earned outstanding entries in the ACRs and excellent recommendation from the Ministers concerned throughout but there was no indication by the Selection Committee as to why the respondent was not even found fit for being empanelled as Secretary. The Tribunal was of the view that though the reason for not inclusion in the panel need not be intimated to the officer concerned but the selection proceedings should have indicated as to how a senior member of the service did not deserve to be included in the panel. It was thus observed that there was no application of mind. However, when this matter was carried to Hon'ble Supreme Court, reference was made to the earlier judgment of the Hon'ble Supreme Court given in the case of Dalpat Abasaheb Solunke v. B.S. Mahajan wherein it was observed as follows:
It is needless to emphasize that it is not the function of the Court to hear appeals over the decisions of the Selection Committee 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 Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. Hon'ble Supreme Court had also referred to Para 14 of the Central Staffing Scheme, as contained in the Office Memorandum dated 15.7.1992, which was for the posts of Addl. Secretary/Special Secretary and Secretary. For ready reference, it reads as under:
14. Selection for inclusion on the panel of officers adjudged suitable for appointment to the posts of Additional Secretary or Special Secretary/ Secretary to the Government of India and posts equivalent thereto, will be approved by the ACC on the basis of proposals submitted by the Cabinet Secretary. In this task, the Cabinet Secretary may be assisted by a Special Committee of Secretaries for drawing up proposals for the consideration of ACC. As far as possible, panels of suitable officers will be drawn up on an annual basis considering all officers of a particular year of allotment from one service together as a group. Inclusion in such panels will be through the process of strict selection and evaluation of such qualities as merits, competence, leadership and a flair for participating in the policy making process. Posts at these levels at the Centre filed according to the Central Staffing Scheme are not to be considered as posts for the betterment of promotion prospects of any service. The needs of the Central Government would be the paramount consideration. While due regard would be given to seniority, filling up of any specific post would be based on merit, competence and the specific suitability of the officer for a particular vacancy in the Central Government.
Similarly, reference was also made to the judgment in the case of Major General I.P.S. Dewan v. Union of India wherein it was held:
that the principle that administrative orders affecting rights of the citizens should contain reasons therefor cannot be extended to matters of selection and unless the rules so require, the Selection Committee/Selection Board is not obliged to record reasons why they are not selecting a particular person and/or why they are selecting a particular person, as the case may be.
After referring to above judgments, it was held that since the Selection Committee had taken into consideration the record and experience, including the conceptual and leadership abilities, achievements and potential for general management positions and had recommended 19 IAS Officers for holding the post of Secretaries and 7 IAS Officers for holding a non-secretariat post, therefore, it shows that it is not only the CRs which are relevant for those positions but apart from the record, there are certain other matters that have to be considered, namely, merit, competence, leadership and flair for participating in the policy making process and the need of the Central Government which is the paramount consideration. Merely because the Minutes of the Committee do not contain reason for non-selection of the respondent, it does not mean that there has been no proper consideration of the merits and suitability of the respondent nor can it vitiate the selection. In this view of the matter, even though the respondent therein was given excellent and outstanding CRs, Hon'ble Supreme Court did not find any merit in the contentions raised by the respondent therein and the directions given by the Tribunal to hold review DPC were set aside. The same view was reiterated by Hon'ble Supreme Court in the case of Satya Narain Shukla v. Union of India and Ors. . In this case, Central Staffing Scheme itself was challenged apart from non-empanelment as Addl. Secretary to the Government of India. It was held that the Central Staffing Scheme is not arbitrary.
E. Para 14 of the Central Staffing Scheme makes it clear that empanelment will be through the process of strict selection and evaluation of "merit, competence, leadership and a flair for participating in the policy-making process". It is also made clear therein that posts at these levels in the Centre filled according to the Central Staffing Scheme are not to be considered as posts for the betterment of promotion prospects of any service and that the need of the Central Government would be the paramount consideration. While due regard would be given to seniority, filling of any specific post would be based on merit, competence and specific suitability of the officer for a particular vacancy in the Central Government.
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1. We are, therefore, unable to accept that empanelment of a State cadre officer for the post of Additional Secretary/Secretary to the Government of India is a promotion as contended. If the argument of the appellant is accepted, then an officer of the State cadre who is appointed to the Government of India can never be sent back to his State cadre, for the benefit of promotion once given cannot be withdrawn unless for extraordinary reasons. For all these reasons, we are unable to agree with the appellant's contention that the post of Additional Secretary/ Secretary to the Government of India is a promotional post for an IAS Officer. (Para 24).
15. From the above judgment, two things are absolutely clear. Firstly, that empanelment at the highest level for central deputation is not dependent merely on the ACRs but there are other aspects as mentioned above which need to be taken into consideration while making the selection and secondly, merely because there are no reasons given for non-selection of an officer, it does not vitiate the selection. In this background, if we see that facts of the present case, we find that applicant's case was duly considered by the Selection Committee headed by the Cabinet Secretary. It goes without saying that it was a High Powered Selection Committee which had taken into consideration all the aspects of the matter before preparing the final panel for central deputation. No mala fides have been alleged against the members of the Selection Committee. Therefore, we have no reason to doubt the correctness of the recommendations made by the High Powered Selection Committee. Even otherwise, looking at the ACRs of the applicant, we do not find any stark deviation nor can it be said that there was a steep fall in the grading of the applicant. Wherever grading is toned down, they have given reasons as to why the grading given by the Reporting Officer is not accepted by the Reviewing Authority. In any case, his over all profile cannot be said to be such, on the basis of which alone applicant should have been empanelled for central deputation. In any case, it is not for the Tribunal to sit in appeal over the recommendations made by the High Powered Selection Committee so long his case has been considered by the duly constituted Selection Committee which did not find him fit for the central empanelment.
16. As we have just observed above, central deputation is not a normal promotion nor can it be taken as a career advancement because applicant's normal promotions are to be looked forward in his own cadre in the State. The central deputation is an ex-cadre post, which is based purely on selection and merit is the only criteria. It is not dependent on the CRs only but there are other parameters which have to be looked into, therefore, even if a person had all outstanding reports, yet he would not be selected, if he was not good enough in other parameters as mentioned above. For example, in the case of Samar Singh all his CRs were outstanding and he was even commended by the Minister yet Hon'ble Supreme Court observed that since he was not found fit by the Selection Committee, Court cannot sit in appeal over those recommendations. The same principle would apply in the present case. We cannot sit in appeal over the recommendations made by the High Powered Selection Committee.
17. As far as the O.M. dated 19.4.2005 is concerned, that was issued on the basis of judgment given by Hon'ble Supreme Court in the case of U.P. Jal Nigam (supra). By O.M. dated 30.11.2005, it was held to be prospective in nature and now after the judgment given by the Hon'ble Supreme Court in the case of Major Bahadur Singh (supra), DOP&T has issued another Office Memorandum wherein it is clarified that even where the grading is given below the benchmark prescribed for promotion to the next higher grade, it need not be communicated to the officer concerned. These instructions keep changing from time to time depending on the judgments given by the Hon'ble Supreme Court but in view of the detailed discussion as made above, since CRs are not the only criteria for considering the officers for central deputation empanelment, nothing turns out on these instructions.
18. In view of above discussion, we find no good ground to interfere in this case. The same is accordingly dismissed with no order as to costs.