Central Administrative Tribunal - Delhi
Devi Prasad Srivastava S/O Amarnath Lal ... vs Union Of India Through on 27 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2513 of 2011 This the 27th day of September, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Devi Prasad Srivastava S/o Amarnath Lal Srivastava, R/o H. No. K-1252, Ashiyana Colony, Kanpur Road, Lucknow, presently working as Supdt. of Police, Shahjahan Pur, Uttar Pradesh. Applicant ( By Shri A. R. Masoodi, Advocates ) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Under Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi. 3. Union Public Service Commission through its Chairman, Dholpur House, Shahjahan Road, New Delhi. 4. State of Uttar Pradesh through its Principal Secretary (Home), Civil Secretariat, Lucknow. 5. Chief Secretary, Government of Uttar Pradesh, Civil Secretariat, Lucknow. 6. Director General of Police, U.P., 1, Tilak Marg, Lucknow. Respondents ( By Shri H. K. Gangwani for Respondents 1 & 2 and Shri B. S. Banerjee for Respondents 4, 5 & 6, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Devi Prasad Srivastava, the applicant herein, is a substantive member of U.P. Provincial Police Service, appointed through selection by U.P. Public Service Commission in the year 1981. In the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, he seeks quashing of order dated 21.6.2011 (Annexure-A/1) vide which the respondents have refused to appoint him to the Indian Police Service (IPS) by promotion from the year-wise select list of 2008 and 2009. In consequence of setting aside the order aforesaid, the applicant seeks a direction to be issued to the respondents to act upon the select lists of the years 2008 and 2009 for purposes of his appointment to IPS, UP cadre at par with his juniors who have been appointed by means of notification dated 7.12.2009, with all consequential benefits.
2. The facts on which the reliefs as mentioned above are sought to rest, and on which there may appear to be hardly any dispute, reveal that the applicant after his appointment in 1981, earned promotion in the senior scale and subsequently on the post of Deputy Superintendent of Police (senior scale), and further as Additional Superintendent of Police in the year 1994. The applicant claims to have a clean service record without any blemish. In the year 2005, however, while he was posted at District Sultanpur, process of recruitment of constables in U.P. Police took place, wherein he was nominated as a member of one of the recruitment boards comprising four members and one chairman who was of the rank of Superintendent of Police. Several recruitment boards were formed to undertake the process of recruitment of constables in the State Police. It is the case of the applicant that the recruitment of constables made by various recruitment boards became subject matter of scrutiny by the State Government and an enquiry was ordered. Preliminary enquiry was conducted by a committee known as Shelja Kant Committee, which made recommendations, based upon which disciplinary proceedings were ordered against members of various recruitment boards, including the applicant. Some adverse remarks also came to be recorded in the ACRs of the applicant on the basis of alleged irregularities said to have been committed while making recruitment of constables in the State Police. It is during pendency of the disciplinary proceedings that the candidature of the applicant fell due for consideration for selection to IPS, UP cadre in the select list of the years 2008 and 2009. The selection took place in the year 2009. UPSC while considering eligible officers of the State Police Service finalized the select lists for the said years, which were notified vide notification dated 7.12.2009 (Annexure-A/2). The name of the applicant in the select list of 2008, as notified above, was placed at serial number 4, and at serial number 1A insofar as the select list of 2009 is concerned. All the persons finding place below the name of the applicant are stated to be junior to him. Perusal of the select list would reveal that inclusion of name of the applicant in the select lists was made provisional and subject to clearance of disciplinary proceedings pending against him and expunction of adverse remarks, coupled with grant of integrity certificate by the State Government. The select lists were acted upon by the Central Government with issuance of appointment notification dated 7.12.2009 (Annexure-A/2). It is the case of the applicant that implementation of the select lists of 2008 and 2009 by the Central Government having acted upon the said lists would leave no manner of doubt that the selection of the applicant became final for all purposes subject to clearance of conditions mentioned in the lists, and that his right for consideration for purposes of appointment to IPS, UP cadre got sealed subject to clearance of conditions mentioned therein. Inclusion of the applicant in the select lists of 2008 and 2009 as provisional became subject matter of dispute in OA No.42/2010 in the Lucknow Bench of the Tribunal, wherein an interim order came to be passed on 23.2.2010, which reads as follows:
Having heard the counsel for the parties, we direct both the applicant and the respondents to maintain status quo with respect to the working of the applicant as on date. It is made clear that this order will not prevent the respondent authorities to consider the case of the applicant for regular selection as well as extension of provisional promotion under relevant rules. We further provide that in case the OA in future, the relief claimed by the applicant therein shall not be rendered infructuous by the respondents.
List on 17.05.2010 along with the office report regarding status of service/pleading to enable the Bench to fix a date of final hearing. The OA aforesaid came to be transferred to the Principal Bench and was re-numbered as OA No.3729/2010. During pendency of the OA aforesaid, the State Government passed an order on 21.1.2011 whereby the disciplinary proceedings were dropped against the applicant. As such, an application for interim directions was filed for grant of benefit of selection inter alia on the ground of the aforementioned order. The Tribunal while disposing of the OA aforesaid vide order dated 9.2.2011, took note of the order dated 21.1.2011. The short oral order recorded in the OA reads as follows:
The applicant was selected for appointment to IPS. However, as by that time disciplinary proceedings were pending against the applicant, as such selection of the applicant was made as provisional. The procedure adopted is stated to be equivalent to putting case of an employee in a sealed cover. As of now, it is not in dispute that the disciplinary proceedings initiated against the applicant have been dropped by order dated 21.01.2011 and copy in that regard has been placed on record with the rejoinder as Annexure RA-1. In view of the position mentioned above, the case of the applicant for appointment by promotion to IPS has to be considered. Let this exercise be done by Respondent No.1 as expeditiously as possible and definitely within a period of three weeks from the date of receipt of a certified copy of this order. The State Government issued yet another order dated 16.3.2011 whereby the adverse remarks recorded against the applicant on the basis of allegations leading to disciplinary proceedings were also expunged and his integrity for the year 2007-08 was also certified. The applicant filed a misc. application in OA No.3729/2010 for modification of the prayer made by him in the OA. The modified prayer reads as follows:
Wherefore, the Honble Tribunal may be pleased to modify the order dated 09/02/2011 to the extent that the Respondent No.1 may be directed to consider the Applicants candidature for appointment by promotion to IPS, U.P. Cadre as per his selection in the Select Lists of 2008 and 2009 from the due date i.e. 7.12.2009 when junior persons to him were so appointed by promotion keeping in view the orders passed by the State Government on 21.01.2011 and 16.03.2011 in the interest of justice. Order on the application aforesaid came to be passed on 19.4.2011, which reads as follows:
There is no opposition to the Misc. Application for correction in the judgment. Allowed in terms of the prayer made therein. MAs stand disposed of. The order foresaid was not challenged and has thus attained finality. On representation being made by the applicant in the light of the order passed by the Tribunal, the matter was considered by respondents 1 and 2, and it is the case of the applicant that the matter was also forwarded to DOP&T and Ministry of Law for necessary instructions, and that DOP&T and Ministry of Law instructed the Union Government to carry out the mandate of law by extending the benefit of appointment to the applicant on parity basis, inasmuch as the conditions mentioned in the select lists acted upon by the 1st and 2nd respondents had lost their relevance completely, and, therefore, the appointment of the applicant to IPS, U.P. cadre was directed to be given effect to. However, for the reasons best known to the respondents, it is the case of the applicant, interpretation of rules was made in such a way that his legitimate claim has been denied. It is his case that the respondents have referred to regulation 9 of the Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter to be referred as the Regulations of 1955), whereunder appointment by promotion to IPS is to be made as per order of names of the members of State Police Service in the select list which remains in force, and that the select lists for 2008 and 2009 were immediately acted upon and junior persons to the applicant were appointed by means of notification dated 7.12.2009. This, according to the applicant, would clearly show that the right of the applicant for appointment to IPS, UP cadre became final subject to clearance of conditions mentioned therein. In the circumstances as mentioned above, it is further the case of the applicant, it would be unreasonable and irrational to say that the select lists of the years 2008 and 2009 went inoperative with passage of time as embodied under regulation 7(4) of the Regulations aforesaid. It is further the case of the applicant that the Tribunal in its order dated 9.2.2011 observed that consideration of the applicant during pendency of disciplinary proceedings being recommended as provisional would be akin to sealed cover procedure, which would leave no manner of doubt that as and when the disciplinary proceedings and other conditions leading to inclusion of the applicant as provisional in the select list are wiped off, a procedure like sealed cover was liable to be observed so as to give effect to the selection of the applicant. It is in wake of the facts and circumstances as fully detailed above that the applicant has made the prayers in the OA already indicated hereinbefore.
3. Pursuant to notice issued by this Tribunal, two sets of counter replies, one on behalf of respondents 1 and 2 and the other on behalf of respondents 4 to 6, have been filed. Union Public Service Commission has been arrayed as the 3rd respondent, and despite service, neither has anyone chosen to appear on its behalf nor naturally has any reply been filed. Insofar as, respondents 4 to 6 are concerned, during the course of arguments no objection has been raised on their behalf for giving to the applicant the relief as asked for by him. The opposition is forthcoming only from respondents 1 and 2. As mentioned above, on facts there is no dispute. Respondents 1 and 2 would oppose the cause of the applicant only on the basis of Regulations of 1955. During the course of arguments, learned counsel representing the said respondents was unable to explain as to how any of the regulations mentioned in the reply, like regulations 5(5), 7(4) and 9, would come in the way of the applicant in getting the desired relief. It is stated in the reply filed on behalf of respondents 1 and 2, as also during the course of arguments, that the subject matter of the present OA primarily concerns the State Government and UPSC, and as such it is for the State Government and UPSC to make submissions in the OA, and, therefore, the submissions made by them may be referred to. Insofar as, the State Government is concerned, we have already mentioned that there is no opposition to the prayer made by the applicant, and insofar as UPSC is concerned, it has not even chosen to appear despite service.
4. Before we may examine the regulations relied upon in the counter reply filed on behalf of the 1st and 2nd respondents, we may mention that the select list dated 7.12.2009, which includes the name of the applicant at serial number 4, came into being in exercise of the provisions contained in regulation 7(3) of the Regulations of 1955, having been approved, so specifically mentioned, by UPSC on 1.12.2009. Underneath the names of 13 persons who were brought on the select list for the year 2008, it is mentioned, The names at Sl. No.1, 2 and 4 have been included in the list provisionally subject to clearance of disciplinary proceedings pending against them, expunction of Adverse Remarks, and grant of integrity certificate by the State Govt.. A note to the same effect underneath the select list of the year 2009, wherein the name of the applicant figures at serial number 1A, has also been appended. It is not in dispute that the applicant has since already been cleared in the disciplinary proceedings having been completely exonerated. The adverse remarks which were because of the allegations subject matter of disciplinary proceedings have been expunged and integrity certificate has also been issued by the State Government. In these circumstances, it is absolutely un-understandable as to how the applicant is not to be promoted to IPS from the date persons junior to him have been so promoted. That apart, in an inter partes judgment which has since attained finality, it has already been observed that the case of the applicant, when order dated 7.12.2009 was passed under sub-regulation (3) of regulation 7 of the Regulations of 1955, would be at par with the sealed cover procedure, and, therefore, the moment a person may be cleared from the conditions for which his case could be put under sealed cover, he shall have to be considered for appointment from the date others may have been appointed in the same selection process. In view of the orders passed by the court/tribunal of competent jurisdiction, which would include the order passed in a clarificatory application of the applicant as reproduced above, we find that the respondents were duty bound to appoint or induct the applicant to IPS in the select lists of 2008 and 2009, with all continuity in service and other consequential benefits. Insofar as the regulations are concerned, we find no embargo that may come in the way of the applicant in getting the desired relief. Regulation 7 of the Regulations of 1955, deals with select lists. The Commission, as per the regulation aforesaid, shall consider the list prepared by the committee along with the documents received from the State Government, and the observations of the Central Government, and unless it considers any change necessary, approve the list. This step was taken when order dated 7.12.2009 was passed. Sub-regulations (2), (3) and (4) of regulation 7 read as follows:
(2) If the Commission considers it necessary to make any changes in list received from the State Government, the Commission shall inform the State Government and the Central Government of the changes proposed and after taking into account the comment, if any, of the State Government and the Central Government, may approve the list finally with such modification, if any, as may, in its opinion, be just and proper.
(3) The list as finally approved by the Commission shall from the Select List of the members of the State Police Service.
Provided that if an officer whose name is included in the Select List is, after such inclusion, issued with a charge-sheet or a charge-sheet is filed against him in a Court of Law, his name in the Select List shall be deemed to be provisional.
(4) The Select List shall remain in force till the 31st day of December of the year in which the meeting of the selection committee was held with a view to prepare the list under sub-regulation (1) of Regulation 5 or upto sixty days from the date of approval of the Select List by the Commission under sub-regulation (1) or, as the case may be, finally approved under sub-regulation (2), whichever is later:
Provided that where the State Government has forwarded the proposal to declare a provisionally included officer in the Select List as 'unconditional to the Commission during the period when the select list was in force, the Commission shall decided the matter within a period of ninety days or before the date of meeting of the next Selection Committee, whichever is earlier and if the commission declares the inclusion of the provisionally included officer in the Select List as unconditional and final, the appointment of the concerned officer shall be considered by the Central Government under Regulation 9 and such appointment shall not bee invalid merely for the reason that it was made after the select list ceased to be in force:
Provided further that in the event of any new service or services being formed by enlarging the existing State Police Service or otherwise being approved by the Central Government as the State Police Service under clause (1) of sub-regulation (1) of Regulation 2, Select List in force at the time of such approval shall continue to be in force until a new list prepared under Regulation 5 in respect of the members of the new State Police Service, is approved under sub-regulation (1), or as the case may be, finally approved under sub-regulation (2).
Provided also that where the select list is prepared for more than one year pursuant to the second proviso to sub-regulation (1) of regulation 5, the select lists shall remain in force till the 31st day of December of the year in which the meeting was held to prepare such lists or upto sixty days from the date of approval of the select lists by the Commission under this regulation, whichever is later. Perusal of regulation 7(3) would manifest that the list as finally approved by the Commission shall form the select list of the members of the State Police Service. The applicant came into the select list as finally approved by the Commission under regulation 7(3), so specifically mentioned in the order dated 7.12.2009 itself. In our view, provisions of regulation 7(4) would not be applicable to the facts of the present case, only because the applicant could not be appointed at that point of time because of the three conditions that were imposed. However, the moment such conditions were to go, the appointment of the applicant would relate back to the date when others were appointed pursuant to order dated 7.12.2009. Regulation 9 reads as follows:
9. Appointments to the Service from the Select List. - (1) Appointment of a member of the State Police Service, who has expressed his willingness to be appointed to the Service, shall be made by the Central Government in the order in which the names of the members of the State Police Service appear in the Select List for the time being in force during the period when the Select List remains in force:
Provided that in a Joint Cadre, the appointment of member of the State Police Service shall, subject to any agreement regarding filling up of the vacancies in the Joint Cadre by promotion of a member of the State Police Service serving in connection with the affairs of any such State, be made in the order in which the names of the members of the State Police Service occur in the relevant parts of the Select List for the time being in force:
Provided further that the appointment of an officer, whose name has been included or deemed to be included in the Select List provisionally, under proviso to sub-regulation (5) of Regulation 5 or under the proviso to sub-regulation (3) of Regulation 7, as the case may be, shall be made within sixty days after the name is made unconditional by the Commission in terms of the first proviso to sub-regulation (4) of Regulation 7:
Provided also that in case where a Select List officer has expressed his unwillingness for appointment to the service, he shall have no claim for appointment to the service from that Select List unless he informs the Central Government through the State Government before the expiry of the validity period of the Select List, revoking his earlier expression of unwillingness for appointment to the service. We do not find anything in regulation 9 which may come in the way of the applicant in getting the desired relief, nor has any embargo been shown emanating from the said regulation by the counsel representing the 1st and 2nd respondents.
5. For the reasons as mentioned above, this Original Application is allowed. Order dated 21.6.2011 (Annexure A-1) is quashed and set aside, and direction is issued to the respondents to act upon the select lists of the years 2008 and 2009 for the purpose of appointment of the applicant to IPS, U.P. cadre at par with his juniors who have been appointed by means of notification dated 7.12.2009, with all consequential benefits. The applicant will get the seniority in IPS, UP cadre from due date, but his pay would be notional till such time he was completely cleared of all the conditions mentioned above. It is from that date only that he would be entitled to actual pay. The applicant shall also be entitled to other consequential benefits that may accrue to him in consequence of setting aside of the order dated 21.6.2011 and the directions that have been given by us. The Application would be allowed with costs quantified at Rupees five thousand, as we are of the view that a rightful claim of the applicant has been thwarted on wholly untenable grounds, particularly when the relief flows to the applicant from an inter partes judgment and when the regulations pressed into service would not come in the way of the applicant in getting the desired relief.
( Dr. Veena Chhotray ) ( V. K. Bali )
Member (A) Chairman
/as/