Central Administrative Tribunal - Chandigarh
Coram: Hon Ble Mr. Justice L.N. Mittal vs Union Of India on 8 September, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(Order reserved on 01.09.2016)
Date of filing: 15.02.2016.
O.A No. 060/00132/2016 Date of decision : 08.09.2016
CORAM: HONBLE MR. JUSTICE L.N. MITTAL, MEMBER (J)
HONBLE MRS. RAJWANT SANDHU, MEMBER (A)
Anil Kumar, IPS, aged 58 years, (Group-A), Deputy Commissioner Police, Panchkula.
APPLICANT
BY ADVOCATE: Sh. K.K. Gupta.
VERSUS
1. Union of India, Ministry of Home Affairs, North Block, Central Secretariat, New Delhi through its Secretary.
2. Union Public Service Commission, Dholpur House, Shahajan Road, New Delhi-110069.
3. State of Haryana, Home Department, Civil Secretariat, Haryana, Chandigarh, through its Chief Secretary.
RESPONDENTS
BY ADVOCATE: Sh. Ram Lal Gupta, counsel for respondent no.1.
Sh. B.B. Sharma, counsel for respondent no.2.
Sh. Samarvir Singh, counsel for respondent no.3.
ORDER
HONBLE MR. JUSTICE L.N. MITTAL, MEMBER (J):-
Applicant Anil Kumar, an Indian Police Service (IPS) Officer of Haryana Cadre, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, claiming the following relief:-
(i) Directions may kindly be issued to the respondents no.1 and 2 to appoint the applicant to the IPS against the vacancy for the year 2009 instead of the year 2010 being the senior most in the merit at Serial no.1 for the Select List Year 2010 consequent upon the accruing of the vacancy in the year 2009 because of the non granting of the Integrity Certificate by the respondent no.3 in respect of one Shri Pat Ram Singh who was earlier provisionally included in the Select List Year 2009;
(ii) The impugned order (Annexure A-1) may kindly be quashed and directions be issued to the respondent no.1 for computing the year of allotment of the applicant in terms of the un-amended Rules (Annexure A-5) as the applicant was appointed to the IPS prior to the notification of the amended Rules (Annexure A-6) and for the grant of all consequential benefits.
2. Facts in the case are not very much in dispute. The applicant was appointed as Assistant Sub Inspector with Haryana Police on 16.03.1979, promoted as Sub Inspector on 26.10.1983, then as Inspector on 30.01.1990 and thereafter as Deputy Superintendent of Police (State Police Service) on 26.05.1993. Selection Committee Meeting for promotion of State Police Service Officers of Haryana to IPS for the years 2006 (1 post), 2009 (2 posts) and 2010 (8 posts) was held on 21.12.2011. In the instant OA, we are concerned with vacancies of the years 2009 and 2010 and not with the vacancy of the year 2006. The applicant was in the zone of consideration for the vacancies of the years 2009 and 2010. The Selection Committee in the Select List for the year 2009 included the names of Pat Ram Singh and Ved Parkash (both seniors to the applicant). However, name of Pat Ram Singh was included only provisionally subject to grant of Integrity Certificate by the State Government. In the Select List of 2010, name of Pat Ram Singh was again included only provisionally at Serial no.0A subject to grant of Integrity Certificate of State Government. Name of applicant Anil Kumar was included at Serial no.1 in Select List of 2010. The aforesaid Select Lists were approved by Union Public Service Commission (UPSC)-respondent no.2 by issuing notification dated 29.03.2012 (Annexure A-2). Integrity Certificate was not granted by State Government to Pat Ram Singh for 2009 as well as for 2010, and accordingly, he was not promoted to IPS for those years. Central Government vide notification dated 29.03.2012 (Annexure A-3) promoted Ved Parkash only to IPS for the year 2009 and promoted Anil Kumar applicant and others for the year 2010, the applicant being at Serial no.1 in the promotion list of 2010.
3. Case of the applicant is that out of two vacancies for 2009, one post remained vacant as Integrity Certificate was not granted to Pat Ram Singh. Consequently, the applicant who is at Serial no.1 in the Select List of 2010, should have been appointed to IPS by promotion against the said vacancy of the year 2009.
4. Another grievance of the applicant is that IPS (Regulation of Seniority) Rules, 1988, (in short, the Seniority Rules) (Annexure A-5) govern the determination of seniority of IPS Officers. The said Rules were amended vide Amendment Rules dated 18.04.2012 (Annexure A-6). The applicant had been promoted to IPS before enforcement of the Amendment Rules (Annexure A-6). Consequently, unamended Seniority Rules (Annexure A-5) are applicable for determination of allotment year of the applicant and his consequent seniority in IPS. The respondents have, however, applied the Seniority Rules as amended by Amendment Rules (Annexure A-6), and have allotted allotment year 2006 to the applicant for his promotion against vacancy of the year 2010, vide order dated 10.12.2012 (Annexure A-1). However, according to unamended Seniority Rules, by giving proper weightage to the applicant for the service rendered by him in State Police Service, the year of allotment would come to 2005. If the applicant is promoted to IPS against vacancy of 2009, then according to unamended Seniority Rules, his year of allotment would come to 2004. The applicant made representation dated 19.07.2013 (Annexure A-7) claiming the aforesaid twin reliefs. Respondent no.1 (Union of India) vide letter dated 29.07.2013 (Annexure A-8) asked for comments of respondent no.3 (State of Haryana) on the representation of the applicant. Director General of Police (DGP), Haryana, vide letter dated 16.10.2014 (Annexure A-9) sent the comments of the Department to the Additional Chief Secretary to Government of Haryana, Home Department, with reference to his memo dated 24.07.2014. However, as per knowledge of the applicant, State Government (Respondent no.3) has not forwarded its comments on representation of the applicant to respondent no.1. Thus, representation of the applicant has not yet been decided by the respondents. Hence this O.A.
5. Respondent no.1 (Union of India) in its reply interalia pleaded that High Court of Punjab and Haryana in Parveen Kumar Vs. UPSC & Others 2010 (4) SLR 434 decided on 01.02.2010 (judgment Annexure A-11),upheld by Honble Supreme Court, directed that the Select Lists be styled coinciding with the year of vacancies. Accordingly, DOPT issued OM dated 25.08.2010 (Annexure A-13). Pursuant to the said judgment, Amendment Rules dated 18.04.2012 (Annexure A-6) were issued. Accordingly, year of allotment of the applicant has been rightly given as 2006 as per amended Seniority Rules.
6. As regards inclusion of name of the applicant against vacancy of the year 2009, reference has been made to Regulation 7 (4) of the IPS (Appointment by Promotion), Regulations, 1955 (Annexure A-4) (in short, the Regulations) to plead that the Select List remained in force upto 19.05.2012 i.e. upto 60 days after the Select List was approved by the Commission on 20.03.2012. After expiry of validity period of the Select List, if the post remains unfilled, the vacancy has to be carried forward for the next year. Accordingly, the vacancy against which Pat Ram Singh was selected, was, therefore, carried forward to the year 2011. Pat Ram Singh was senior to Anil Kumar applicant. The applicant cannot claim his appointment against vacancy of Pat Ram Singh in the Select List of 2009, in view of Regulation 7 (4) of the Regulations.
7. The applicant filed replication to the reply of respondent no.1 wherein he reiterated his version and repudiated the stand of respondent no.1. It was added that the vacancy of 2009 could not be carried forward even as per OM dated 25.08.2010 (Annexure A-13). It had to be filled up for the same Select List year for which the vacancy accrued.
8. Respondent no.1 also filed reply to the rejoinder of the applicant and reiterated that there is no provision to include the name of someone else in a particular Select List in case of non-appointment of officer who is provisionally included in the Select List.
9. Respondent no.2 (UPSC) in its reply statement also broadly took the same stand as that of respondent no.1. It was also pleaded that there is no provision in the Regulations to replace the name of Pat Ram Singh with the name of the applicant in the Select List of 2009. It was also pleaded that fixation of seniority and year of allotment is within the purview of respondent no.1. Matter regarding decision on representation of the applicant is pending with respondents no.1 & 3. There is no role of respondent no.2.
10. Respondent no.3 in its reply also took the same stand as that of respondent no.1. It was reiterated that after expiry of validity period of Select List, if the post remained vacant, the vacancy has to be carried forward for the next year. The vacancy against which Pat Ram Singh was selected was, therefore, carried forward for the year 2011.
11. We have heard counsel for the parties and perused the case file.
12. Counsel for the applicant reiterated that the applicant being at serial No. 1 in the Select List of 2010 is entitled to be included in the Select List of 2009 against the vacancy which remained unfilled due to non appointment of Pat Ram Singh in that year due to non grant of Integrity Certificate to him by the State Govt. It was pointed out that the applicant was in the zone of consideration even for the year 2009 as is evident from letter dated 1.4.2011 (Annexure A-10) containing the names of officers within zone of consideration for the vacancies of different years. Counsel for the applicant also submitted that since the applicant is at serial No. 1 in the Select List of 2010 having been found fit for promotion to IPS, he was also, therefore, fit for promotion to IPS for the vacancy of 2009.
13. On the other hand, counsel for respondents reiterated that vacancy of the year 2009 due to non appointment of Pat Ram Singh for want of Integrity Certificate was carried forward to the year 2010 and then to the year 2011 when Pat Ram Singh was appointed to IPS by promotion. It was submitted that there is no provision in the Regulations to replace the name of Pat Ram Singh with the name of the applicant in the Select List of 2009. Reference was made to Regulation 7(4) of the Regulations regarding validity period of Select List as pleaded in the written statement. It was also submitted that if the post remained unfilled, the vacancy has to be carried forward to the next year. There is no provision for changing the Select List.
14. We have carefully considered the aforesaid aspect of the matter. Counsel for the respondents conceded that there is no provision in the Regulations to carry forward the unfilled vacancy of any year to next year. Consequently, stand of the respondents that unfilled vacancy of Pat Ram Singh, who could not be appointed due to non-grant of Integrity Certificate by State Govt., was carried forward, cannot be accepted. In the absence of any specific provision, general rules of service jurisprudence shall prevail and principles of justice, equity and good conscience have to be followed. The action has to be just, fair and reasonable. It is well established principle of service jurisprudence that if a post remains unfilled for any reason, the same has to be offered to the next candidate in order of merit. For instance, if 10 vacancies are advertised and appointment is offered to the top 10 candidates in the merit list, but one of candidates does not accept the appointment, then the said one post remaining unfilled has to be offered to the next candidate in merit i.e. 11th candidate. In the same manner, in the instant case, when the one vacancy of the year 2009 remained unfilled due to non-appointment of Pat Ram Singh for want of Integrity Certificate, the applicant being next in zone of consideration should have been considered against the said unfilled vacancy. Admittedly, he was in the zone of consideration for the year 2009 as well and was immediately below Ved Parkash who only was appointed against one out of two vacancies of 2009. The applicant is, therefore, entitled to succeed to this extent.
15. However, plea of the applicant that since he was found fit and was at serial No. 1 in the Select List for 2010, he should be straightaway included in the Select List of 2009 against the unfilled vacancy, cannot be accepted. ACRs/APARs of the applicant considered for Select List of 2010 shall not be same as his ACRs/APARs to be considered for the Select List of 2009. Consequently, Review Selection Committee meeting for Select List of 2009 has to be held to consider the case of the applicant and others in consideration zone for that year and on the basis of recommendation of the Selection Committee only, further action can be taken.
16. As regards applicability of Seniority Rules to determine the Allotment Year and seniority of the applicant, counsel for the applicant contended that unamended Seniority Rules (Annexure A-5) are applicable because the applicant was appointed to IPS by promotion vide order dated 29.3.2012 (Annexure A-3) whereas the Seniority Rules were amended thereafter vide Amended Rules dated 18.4.2012 (Annexure A-6). It was thus submitted that unamended Seniority Rules, which were in existence at the time of appointment of the applicant to IPS, are applicable to determine his Seniority and Allotment Year, and Seniority Rules as amended by Amendment Rules (Annexure A-6) are not applicable. Reliance in support of this contention has been placed on following judgments:
1. 2007(4) SCT 620- Arjun Singh Rathore & Ors. Vs. B.N. Chaturvedi & Ors.
2. 2016 (3) JT 320- District Collector, Vellore District Vs. K.Govindaraj
3. 2015 (8) SCC 410- M. Surender Reddy Vs. Govt. of Andhra Pradesh and Others
4. 2009 (9) SC 454- Anil Chandra &Ors. Vs. Radha Krishna Gaur &Ors.
5. 2009 (2) SCC (Cri) 1122- Jawahar Singh @ BhagatJi Vs. State of GNCT of Delhi
6. 2006 (8) SCC 702- MRF Ltd., Kottayam Vs. Asstt. Commissioner (Assessment) Sales Tax &Ors.
7. 2016 (2) SCC 36- Prakash & Ors. Vs Phulavati & Ors.
8. 1996 (2)SCC 168- Union of India Vs. S.S. Uppal
9. O.A. No. 214/HR/2013- Vinay Singh Vs. UOI &Ors. decided by CAT, Chandigarh Bench vide order dated 19.12.2014.
17. Counsel for respondents contended that Seniority Rules have been amended vide Amendment Rules dated 18.4.2012 (Annexure A-6) in view of judgment dated 01.02.2010 (Annexure A-11) of Honble High Court in the case of Parveen Kumar (Supra). Therefore, the amended Rules apply w.e.f. 1.2.2010.
18. We have carefully considered the matter. Contention of counsel for respondents that Amendment Rules (Annexure A-6) are applicable w.e.f. 01.02.2010 being based on judgment dated 1.2.2010 in the case of Parveen Kumar (Supra) is completely misconceived and unacceptable. By Amendment Rules (Annexure A-6), two amendments were carried out. One amendment relating to omission of the words immediately before the year in Rule 3(3)(ii) of the Seniority Rules was based on judgment in the case of Parveen Kumar (supra). However, the said amendment has nothing to do with the controversy in the instant O.A. The second amendment related to clauses (a) and (b) of Rule 3(3)(ii) of the Seniority Rules. The said sub-clauses (a) and (b) were substituted by the Amendment Rules. The same have effect on the Seniority and Allotment year of the applicant. Respondents have determined the Allotment Year 2006 of the applicant for his inclusion in the Select List of 2010 on the basis of Amendment Rules (Annexure A-6). However, Amendment Rules dated 18.4.2012 (Annexure A-6) specifically provide in Rule 1(2) that they shall came into force on the date of their publication in the Official Gazette i.e. 18.4.2012. Consequently, the said Amendment Rules are not applicable to determine Seniority and Allotment Year of the applicant who was appointed to IPS vide order dated 29.3.2012 i.e. before coming into force of the Amendment Rules. In view of the judgments cited by counsel for the applicant also as noticed herein above, unamended Seniority Rules are applicable to the applicant because the same were in force when the applicant was appointed to IPS. Subsequent Amendment Rules (Annexure A-6) do not apply to determine the Seniority and Allotment Year of the applicant.
19. According to unamended Seniority Rules (Annexure A-5), for service rendered in State Police Service up to 21 years, weightage of one year for every completed 3 years of service subject to minimum of 4 years has to be given and also weightage of one year for every completed 2 years of service beyond 21 years has to be given subject to a maximum of 3 years. According to Amendment Rules (Annexure A-6), for service rendered in the State Police Service upto 12 years, weightage of one year for every completed 4 years of service has to be given subject to a minimum of 3 years and also weightage of one year for every completed 3 years of service has to be given for service beyond 12 years upto 21 years. Thus weightage for State Police Service has been reduced by Amendment Rules. However, under unamended Seniority Rules, the applicant, having put in more than 15 years of service in State Police Service, is entitled to weightage of 5 years and, therefore, his Allotment Year against vacancy of 2010 comes to the year 2005 as against the Allotment Year 2006 allotted to him vide order dated 10.12.2012 (Annexure A-1). The said Allotment Year has been given under the Amendment Rules which are, however, not applicable to the applicant. If the applicant gets appointment against vacancy of 2009, then his Allotment Year would come to 2004.
20. Counsel for respondents contended that Ved Parkash who was senior to the applicant and was appointed against vacancy of 2009 has been given Allotment Year 2005 and, therefore, the applicant being junior to him cannot be given Allotment Year 2004. It was also submitted that Ved Parkash who shall be adversely affected if the applicant is given Allotment Year 2004 has not been impleaded as party to the O.A.
21. The aforesaid contentions are untenable and misconceived. Ved Parkash has admittedly since retired on attaining the age of superannuation. In view thereof, it appears that Ved Parkash did not take any step to get correct Allotment Year. Unamended Seniority Rules were also applicable to him as he was also appointed to the IPS by the same notification dated 29.3.2012 (Annexure A-3). Consequently, he was entitled to weightage of 5 years and his Allotment Year would come to 2004 as he was appointed against the vacancy of 2009. It appears that he has also been allotted Allotment Year of 2005 by applying Amendment Rules (Annexure A-6) although the same were not applicable to him as well. If appointment of the applicant remains against vacancy of 2010, he shall get Allotment Year 2005 and, therefore, it shall not affect Ved Parkash. However, if the applicant is appointed against vacancy of 2009, then he should get Allotment Year 2004. However, in that event, the respondents may also correct the Allotment Year of Ved Prakash as 2004, failing which the applicant shall also get Allotment Year 2005 at par with Ved Parkash because according to Seniority Rules (amended as well unamended ), a junior cannot be assigned a Year of Allotment earlier than the Year of Allotment assigned to an officer senior to him in that Select List or in earlier Select List. Thus the applicant is entitled to relief regarding Allotment of Year as claimed by him.
22. Counsel for respondents contended that the O.A. is barred by limitation. It was submitted that vide notification dated 29.3.2012 (Annexure A-3), only Ved Parkash was appointed to IPS in Select List of 2009 and Pat Ram Singh was not appointed and the applicant was appointed in Select List of 2010 and, therefore, cause of action to the applicant to claim appointment in Select List of 2009 arose with the issuance of the said notification. Similarly, Allotment Year 2006 to the applicant was given vide order dated 10.12.2012 (Annexure A-1) and cause of action to seek earlier Allotment Year arose at that stage. Limitation period for filing O.A. was one year only. It was also pointed out that the applicant made representation dated 19.7.2013 (Annexure A-7). The applicant could wait for the decision thereof for six months and then could file the O.A. within one year thereafter i.e. upto 19.1.2015. However, the O.A. has been field on 15.2.2016 and the O.A. is thus barred by limitation.
23. On the other hand, counsel for the applicant contended that DGP, Haryana sent comments vide letter dated 16.10.2014 (Annexure A-9) on the representation of the applicant, but the State Govt. did not send its comments to the Union of India as demanded by Union of India vide letter dated 29.7.2013 (Annexure A-8). Representation of the applicant was still under consideration of respondents 1 & 3 and, therefore, the O.A. is not barred by limitation. It was also submitted that there is recurring cause of action because Seniority and Pay fixation of the applicant has been adversely affected and for this reason also, the O.A. is within limitation. Reliance has been placed on the following judgments in support of this contention:
1. 1991 AIR (SC) 424- A. Sagayanathan and Ors. Vs. Divisional Personal Office, S.B.C. Division, Southern Railway, Bangalore
2. 2007 (3) SLR 823- A.K. Jain Vs. Union of India and Ors.
3. 1995(5) SCC 628- M.R. Gupta Vs. Union of India and Ors.
4. 1998 (3) RSJ 350- Saroj Kumari Vs. State of Punjab
24. We have carefully considered the matter. There is recurring cause of action in favour of the applicant. Besides it, the representation of the applicant was still under consideration of the respondents. Moreover, as per judgments cited by counsel for the applicant as noticed above, the instant O.A. is not liable to be dismissed as time barred. In A. Sagayanathan (supra), the Supreme Court held that despite delay, the matter required reconsideration on merit. That case also related to promotion and seniority as in the instant case. The Tribunal dismissed the O.A. on the ground of delay without entering into merits. The case was remanded to the Tribunal to decide the case on merits. In the case of A.K. Jain (Supra) also, the matter related to promotion and seniority. It was held that there is recurring cause of action. In M.R. Gupta (Supra), the matter related to proper fixation of pay. It was held that there is recurring cause of action. Similar was the position in Saroj Kumari (Supra). All these judgments are fully attracted to the case in hand. Consequently, we find that the O.A. is not liable to be dismissed as time barred. However, actual consequential arrears have to be restricted to the limitation period.
25. As an inevitable of the discussion aforesaid, the instant O.A. is allowed. Respondents no. 1 & 2 are directed to hold review Selection Committee meeting to consider the case of the applicant and others in the zone of consideration for appointment to IPS by promotion against the unfilled vacancy of the year 2009 and to take consequential action. Impugned order Annexure A-1 regarding Year of Allotment as 2006 to the applicant in IPS is quashed and respondent no. 1 is directed to compute year of allotment of the applicant as per unamended Seniority Rules (Annexure A-5). The applicant shall be entitled to consequential benefits including Seniority and Pay fixation etc. However, actual arrears shall be confined to the period commencing 18 months preceding the filing of the O.A. which was filed on 15.2.2016. The entire exercise be completed within four months from the receipt of certified copy of this order. No order as to costs.
(JUSTICE L.N. MITTAL) MEMBER (J) (RAJWANT SANDHU) MEMBER (A) Place: Chandigarh.
Dated: 08.09.2016.
`rishi/SK 1 O.A NO. 060/00132/2016 (Anil Kumar Vs. UOI & Ors.)