Central Administrative Tribunal - Bangalore
S Jahnavi vs M/O Home Affairs on 12 December, 2022
1 OA No.450/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0
NO.170/00450/2021
ORDER RESERVED ON : 29
29.11.2022
DATE OF ORDER : 12.12.2022
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
Ms.S.Jahnavi,
D/o M.Srinivas Murthy,
Aged about 39 years,
Working as Superintendent of Police,
Internal Security Division, K.H.Road,
Opp: Shanthinagar, Bus Terminal,
Bengaluru - 560 027. .... Applicant
(ByAdvocate
ByAdvocate Senior Counsel
Counsel Shri P.S.Rajagopal assisted by
Shri B.M.Irishad Ahmed)
Ahmed
Vs.
1. The Union Public Service Commission,
Represented by its Secretary,
Dholpur House, Shahajahan Road,
New Delhi - 110 069.
2. The State of Karnataka,
Represented by its Chief Secretary,
2 OA No.450/2021
Department of Personnel Administration and Re
Reforms,
Vidhana Soudha, Bengaluru-560
Bengaluru 560 001.
3. The State of Karnataka,
Represented by its Additional Chief Secretary,
Home Department, Vidhana Soudha,
Bengaluru - 560 001. ...Respondents
(By Advocate Shri N.Amaresh for Respondent No.1 and
AGA, Shri Sridhar N. Hegde for Respondents No.2 & 33)
ORDER
Per: Justice Jus S.Sujatha ...........Member(J) As 3RD MEMBER The applicant has challenged the endorsement bearing No.C.Aa.Su.E.27 SPS 2021 dated 05.03.2021 (Annexure A20), inter alia seeking for promotion to IPS Cadre from the 2nd respondent and send her name together with her ACR/PAR dossier to the Selection Committee of Respondent No.1 constituted under Rule 3 of the Indian Police Service (Appointment by Promotion) Regulations, 1955, along with other eligible ible officers in accordance with the seniority of the applicant as shown in the list dated 23.03.2021. Further to 3 OA No.450/2021 direct the Respondent No.1 to consider her case ffor promotion to Indian Police Service Cadre along with 2016 officers recommended by the 3rd and 2017 list of eligible officers Respondent and grant appointment by promotion to the applicant in terms of the Indian Police Services (Appointment by Promotion) Regulations, 1955 , taking into consideration her date of entry into service as 21.05.2008 as held by the KSAT, Bengaluru.
2. The matter was heard by the Division Bench of this Tribunal. Since the Hon'ble Members have disagreed with the operative portion of the order, the matter was placed before the Hon'ble Chairman. In exercise of the powers conferred under Section 26 of Administrative Tribunals Act, 1985, ('Act' for short) the Hon'ble Chairman was pleased to nominate Hon'ble Shri A.Mukhopadhaya, Administrative Member,, CAT, Mumbai Bench as 3rd Member to hear the OA No.450/2021. Owing to relinquishment of the charge of 4 OA No.450/2021 the he office of the Administrative Member, Hon'ble Shri A.Mukhopadhaya, on completion of term of appointment, the Registry, CAT, Bangalore Bench requested the Joint Registrar , CAT, Principal Bench to place the matter before nomination of 3rd Member to hear the Hon'ble Chairman for nomination the OA. Accordingly, the Hon'ble Chairman has nominated me as 3rd Member to hear the OA No.450/2021 in terms of Section 26 of the Act.
Act
3. On the memo filed by the learned Counsel appearing for the applicant, the points referred referred to the Hon'ble Chairman under Section 26 of the Act on the basis of which 3rd Member has been nominated for adjudication on the points so referred referred, the Registry was directed to supplyy the same to the learned Counsel for the parties to enable them to aaddress the arguments. On compliance with the same, the matter has been heard accordingly.
5 OA No.450/2021
4. The issue/points referred to the Hon'ble Chairman jointly by the Judicial Member and the Administrative Member reads thus:
"Based on the above brief facts and more details as given in the respective draft judgment, Member (J) has come to the conclusion that the stand of the respondent State Government that the applicant's service from her initial date of appointment from 21.05.2008 cannot be considered to bbe a continuous service and therefore, her name cannot be forwarded to the Union Public Service Commission for induction in the Indian Police Service by wayof promotion can only be termed to be arbitrary and thus being in violation of Articles 14 and 16 of the Indian Constitution, cannot be sustained. Hence according to Member(J), the present OA deserves deserve to be allowed, and the order dated 05.03.2021 vide which the State of Karnataka has declined to include the applicant's name in the eligibility list, is liable to be quashed.
On the same facts, Member(A) has come to the conclusion that the applicant does not have continuous service of 8 years since she had actually joined as Dy.SP on 26.09.2013. She cannot count the period between the date of joining of her immediate junior Smt.Sarah Fathima (21.05.2008) and her own actual date 6 OA No.450/2021 of joining (26.09.2013) for the purpose of eligibility since she has not performed actual service as Dy.SP in this period. She was not in service for this period and has also not been paid any pay for this period. This period can be counted for the purpose of notional fixation of her seniority and pay fixation in the State Police Service in pursuance of KAT orders. It cannot, however, be counted as continuous service, for the purpose of eligibility for appointment appointment to the Indian Police Service, Member(A) is, therefore, of the opinion that the OA being devoid of any merit is liable to be dismissed.
In exercise of the powers conferred by Section 26 of the Administrative Tribunals Act, 1985, we refer the above issue of difference to the Hon'ble Chairman to hear the said issue either by herself or refer the same to such other Member/Members as may be decided by her under the provisions of the Administrative Tribunals Act."
Act.
5. Learned Senior Counsel, Shri P.S.Rajagopal representing the applicant argued that the applicant was first selected by the KPSC vide select list dated 10.01.2008. Despite the validity certificate dated 06.12.2005, the State Government did not appoint her while while appointing all selected candidates 7 OA No.450/2021 including those below the applicant by order dated 21.05.2008. No order of appointment appointment was issued even after receiving second validity certificate dated 29.07.2009. Hence the applicant approached the Hon'ble KSAT, which by order dated 21.11.2012 ordered that the applicant be appointed within one month effective from the date her juniors in the select list were appointed and be granted all consequential benefits benefit and seniority. Despite the said order passed by the the Hon'ble KSAT, the orders were not implemented. In the contempt proceedings initiated by the applicant before the KSAT,, personal presence of Secretary, Home Department was ordered. Pursuant to the said order order, Government issued order of appointment oon 20.09.2013. The said order of appointment having found to be short of compliance of KSAT's order, bailable warrant was issued to the Home Secretary in the said contempt proceedings, then the Corrigendum order dated 05.10.2013 was issued. 8 OA No.450/2021 Ultimately Government Government has given retrospective effect with effect from 21.05.2008 to the said order and granted seniority to the applicant. That being the position position, DG and IGP in terms of Annexure A16 wrote to the State Government for including her name for selection to IPS for panel year 2016 which has been rejected by the State and the names have been forwarded in terms of Annexure A17. The ground for rejection of the applicant's candidature is that she has not completed 8 years of continuous service, her joining in service being 20.09.2013.
6. Learned Senior Counsel argued that the appointment of the applicant was delayed solely due to the wrongs of the State Government for which the applicant cannot be victimised. Inviting the attention to Regulation 5(2) of the Inviting IPS (Appointment by Promotion) Regulations, 1955 ('Regulations' for short) and 3rd proviso therein, argued that the same commands consideration of the case as per 9 OA No.450/2021 seniority, as the language emplolyed is "not less than 8 years of continuous service" and not "experience experience". Under identical State Police Rules, Rules her service is counted with effect from 21.05.2008 and she has been given seniority and promotion.
7. Learned Senior Counsel has referred to the following judgments in support of his contentions:
1. Union of India v. K.B.Rajoria - (2000) 3 SCC 562
2. Union of India v. Sadhana Khanna - (2008) 1 SCC 720
3. C.Jayachandran v. State of Kerala - (2020) 5 SCC 230
4. Pilla Sitaram Patrudu v. Union of India -
(1996) 8 SCC 637
5. Surendra Narain Singh v. State of Bihar -
(1998) 5 SCC 246
6. Bimlesh Tanwar v. State of Haryana - (2003) 5 SCC 604
7. G.Hanumantha Reddy v. Union of Inda -
1985 SCC Online AP 228.
8. Narendra Singh v. State of Haryana - (2022) 3 SCC 286 10 OA No.450/2021
8. Per contra, contra learned Counsel Shri Sridhar N.Hegde representing the State Government submitted that in compliance with the order of the Hon'ble KSAT, the respondent State Government has appointed the applicant to respondent, the post of Deputy Superintendent of Police in the Principal Police Force of the State vide G.O. dated 20.09.2013 and accorded consequential seniority on par with the junior officers and granted pay equal to the junior officers. However, the Hon'ble KSAT has spe specifically held that the applicant was not entitled to any arrears of pay prior to the actual appointment. The order of the Tribunal was on sound footing of judicially established principle of 'no work no pay'. The applicant has not performed the duties of Dy.SP on par with her juniors who were appointed to the cadre in terms of the select list of KPSC.
11 OA No.450/2021
9. Learned Counsel argued that in terms of provisions of Regulations only such persons who have put in continuous Regulations, and regular service of 8 years in th the cadre of Dy.SP or equivalent rank of Principal Police olice Force and actually discharged the functions of the post can be considered for promotion to the cadre of the IPS.
IPS Since ince the applicant has not actually and substantially worked in the post of Dy.SP for 8 years, the he State Government has decided not to include her name in the select list. The question of seniority seniority, promotion and pay cannot be stretched to mean the length of service which is purely dependent on actual service but not service on notional basis.
10. The controversy herein rests on the interpretation of 3rd proviso to Regulation 5(2) of the Regulations which reads thus:
"5(2) The Committee shall consider for inclusion to the said list, the cases of members of the State Police Service in tthe order 12 OA No.450/2021 of a seniority in that service of a number which is equal to three times the number referred in sub-regulation(1):
sub regulation(1):
Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers:
Provided further that in computing the nnumber for inclusion in the file of consideration, the number of officers referred to in sub-regulation regulation (3) shall be excluded: Provided also that the Committee shall not consider the case of a member of the State Police Service unless, on the fir first day of January of the year for which the select list is prepared he is substantive in the State State Police Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent thereto by the State Government .13 OA No.450/2021
11. Rule-77 of Karnataka State Police Including Ministerial Services (Recruitment) Rules, 2004 reads as under:
"I. I. Karnataka State Police Service
7. Superintendent of 31 30 By promotion from 1.Must have put Police (Civil)(Non the Cadre of in a service of Indian Police Ser-
Ser Deputy Superinten
Superinten- not less than
Vice) dent of Police eight years in
(r.9580--14200) (Civil) in the cadre of
Deputy Super-
intendent of
Police (Civil):
Provided that
if Officers who
have put in a
service of not
less than five
years may be
considered for
promotion.
2. Must have put in a
service of not less than
two years in any post
other than the post in
the Sub-Divisions and
the City Police Sub-
Division as Deputy
Superintendent of
Police:
Provided that a person
shall be deputed to
work in the post other
than the posts of Police
Sub-Divisions and
other than the City Po-
lice Sub-Division on
the basis of seniority."
14 OA No.450/2021
Considering the said rule, the applicant has been given promotion retrospectively with effect from 09.05.2018
12. After a long legal battle as narrated above above, the State Government issued order dated 09.05.2018 (Annexure A10) giving the seniority retrospectively retrospectively with effect from 21.05.2008.
008. Inn terms of the order dated 15.02.2022 15.02.2022, (Annexure A27) issued by the State Government, the applicant has been promoted as Superintendent of Police (Civil) (Non IPS) (Non-IPS) retrospectively with effect from 17.11.2014, the date on which her junior Ms.Sara Fathima was promoted.
13. In the case of K.B.Rajoria (supra) , the Hon'ble Apex Court has considered the effect of the word "service" qua "qualifying service" and held that the word "service" means qualifying service. In case of supersession supersession, actual service for the prescribed period is not required required. Notional date of 15 OA No.450/2021 promotion was taken into consideration for the eligibility to be considered to the post of of Director General in 1999, having aving regard to notes 1 and 2 to the Schedule Schedule, the relevant para reads thus:
thus "18. The distinction drawn by the High Court between the word "service" used in the eligibility criterion in this case and the words "qualifying service" in para 18.4.3 is specious. The notes to the eligibility criteria as set out in the said Schedule fortify this view. Notes 1 and 2 to the said Schedule clarify the position with regard to the calculation of "two years" regular service in the grade":
"(1) The eligibility list for promotion shall be prepared with reference to the date of completion by the off officers of the prescribed qualifying service in the respective grades/posts.
(2) If a junior with the requisite years of service is considered, the senior will also be considered notwithstanding the fact that he does not possess the requisite years of service."
Further, it has been clearly held in paragraph paragraph-20 as under:
"20. In the context of the case, the High Court erred in equating the words "regular service" with "actual experience" relying on the decision in Union of India v. M.Bhaskar. In that case the 16 OA No.450/2021 eligibility criterion expressly was of "completion of 2 years' experience in Grade II". The case is therefore entirely distinguishable.
14. In the case of Sadhana Kahanna (supra), after completion of 8 years of regular service service, the respondent therein, was granted a short-term short term promotion to the grade of Section Officer on 24.07.1991. The respondent continued to work in that post till the date of the order i.e., 14.12.2007. In that context it has been observed that the respondent therein was offered appointment vide letter dated 05.07.1983 which is after 01.07.1983 from which the eligibility was to be counted. It is the department which is to be blamed for sending the letter offering offering appointment after 01.07.198 01.07.1983. In fact, some of the candidates who were junior to the respondent were issued letters offerin offering appointment prior to 01.07.1983.
3. Hence it was the department which is to be blamed for this. In view of the office memorandums of the 17 OA No.450/2021 Department of Personnel and Training dated 18 18.03.1988 and 19.07.1989, the respondent was also to be considered, otherwise a very incongruous situation would arise, namely, that the junior will be considered for promotion but the senior will not.
15. In the case of C.Jayachandran (supra), the appellant therein though was entitled for appointment along with the three candidates, but because of the action of the Hon'ble High Court in adopting moderation of marks, he was excluded from appointment. The argument of respondent that the appellant was not appointed by the same appoint appointment order, therefore the appellant cannot claim seniority was held to be untenable.
16. In the case of Surendra Narain Singh and others (supra) the arguments of the th State that only such of the candidates who were selected under 15th Examination and 18 OA No.450/2021 whosee appointments were delayed on account of medical examination and police verification of antecedents alone would be entitled to claim seniority on the basis of their rank in the merit list of the 15th Examination and any appointment made subsequent to 23.05.1975 23.05.1975 must rank in the seniority according to the length of service from the date of actual appointment was considered and held thus:
"20. ........... As far as the first part of the order is concerned, there does not seem to be any difficulty in following the same. On the second part, namely, anyone appointed subsequent to 23 23- 5-1975 1975 on account of their being no vacancy will rank in the seniority according to the length of service from the date of actual appointment. What is the meaning of this sec second part of the order ? We have already held that the responden respondent Nos.3 to 34 belonging to the batch batch of 15th Examination held under 1955 19 OA No.450/2021 Rules and if the supplementary list nominating their names would have been sent along with the main list prepared in terms of Rule 19, then obviously there would have been no difficulty. These respondent Nos.3 to 34 would have been appointed along with the other 158 candidates between 18 18-3-1975 and 22-5-1975.
The difficulty arose because the supplementary list nominating the respondent Nos.3 to 34 came to be forwarded after 23 23-7- 1975. Should they suffer for no fault of theirs ? The answer is obviously in the th negative".
17. In Bimlesh Tanwar (supra), the Respondents 8 to 11 therein had suffered for no fault oon their part and on approaching ing the High Court for ventilating their grievances, a direction was issued for their appointment. In such circumstances whether they should lose their seniority was circumstances, the question considered and the same has been answered in the negative. The case of Pilla Sitaram Patrudu v. Union of India - (1996) 8 SCC 637 has been followed. 20 OA No.450/2021
18. In the case of G.Hanumantha Reddy (supr (supra), the similar controversy being arisen i.e., the question whether the petitioner therein who has been granted notional seniority in the cadre of Deputy Collector from 16.09.1949 and who was confirmed in that cadre with effect from 01.11.1956 was entitled ed to have been considered for being appointed to the cadre of I.A.S. in 1958, or in 1969 only in terms of the directions given by the learned single Judge Judge, or was not entitled to be considered even in 1969 as contended for by the Union of India and the Union Union Public Service Commission in their appeal on the ground that the petitioner retired from service on attaining the age of superannuation on 28.02.1981 and no review of the seniority or preparation of a new list for 1969 was possible. There was no disp dispute that the petitioner therein was confirmed from 01.11.1956, the petitioner satisfied the requirements for eligibility mentioned mentioned. The controversy was whether the petitioner therein satisfied 21 OA No.450/2021 the second condition in regard to the continuous service in the post of Deputy Collector or equivalent to the period of 8 years and if so, what is the point of time at which that satisfaction has been reached. Interpreting the language employed in Rule-4(1) of Indian dian Administrative Service rules, it has been held thus:
"6. It is true that the rule is silent in regard to the effect of notional seniority granted to an officer in the post of Deputy Collector. The rule in terms refers only to continuous service (whether ether officiative or substantive). The learned single Judge thought, "A reading of the Rule suggests that what is contemplated is continuous service in the post of Deputy Collector whether officiating or substantive.
The words "completed not less than 8 years of continuous service in the post of a Deputy Collector occurring in the proviso to Regulation 5(2) (Sic)" means completion of actual service. Continuity of service which is contemplated in this Rule (sic) actual service.
A deemed promotion a notional tional date of seniority in the State Forest Service from a date earlier than that from which he actually officiated in the post cannot be considered to have officiated in the post during the period from the 22 OA No.450/2021 notional date to the date of commencement oof officiating the service in that post. The seniority given by virtue of such a notional date is not relevant for purpose of determining the eligibility for inclusion in the list of I.A.S. officers to be prepared under the second proviso to sub regulation (2) of Regulation 5(sic)".
7. With due respect we are unable to agree with the reasoning adopted by the learned Judge. It is admitted on all hands that the petitioner was entitled to have his seniority in the post of Deputy Collector reckoned from 16.09.1949.
16.09.1949. If the orders were passed in time, as the Government ought to have normally done, the petitioner, who had been confirmed in the rank of Deputy Collector with effect from 1.11.1956 by G.O.Ms.No.1125 dt. 10.9.1979 , would have been, in terms of clause (1) of Rule eligible for being considered for inclusion in panel for the year 1958, on his completing 8 years as on 15.9.1957 . The belated recognition of and giving effect to the legitimate rights of the petitioner, that too as a result of the relentless fight he had to carry on, should not operate to his prejudice in the matter of consideration for promotion, as the petitioner was in no way responsible for the delay. Justice has bee been delayed to him but let it not be denied to him completely. Rules and Regulations, in our view, are intended to advance, not to frustrate the cause of justice. Merely on the ground that there is no positive direction in the rule to the selection committee to reckon notional seniority, in the absence of any prohibition in the rules against 23 OA No.450/2021 notional seniority being taken into account for the purpose of eligibility for being considered for inclusion in the panel, if the committee refuses to include the period covered by the notional seniority, restricting it to actual service in the post of Deputy Collector or its equivalent post, it would amount to perpetuation of injustice. It is to be also noticed that the rule also does not speak about the factual service, it speaks only about continuous service which could normally normally mean actual service, but in peculiar circumstances it could include notional service also. We must remember that the conferment of notional seniority on the Writ Petitioner was not a gratuitous act, but something done in recognition of his legal right.
right. Undisputedly the petitioner would have been considered for inclusion in the 1958 list had this recognition come in time. Because of the delay in according this recognition, to which petitioner made no contribution, the Writ Petitioner had suffered suffered enough throughout the time he was in service:
ervice: and it would be only a token of what he deserved if now he is treated to have been eligible for being considered for inclusion in the 1958 list on the basis of his notional seniority, which might result in his his entitlement for some arrears of salary and pensionary benefit on notional promotions and refixation of scales of pay. Why should the Court lend its support to deny even that to the Writ Petitioner?"
Petitioner?
19. Similarly, in the case of Narendra Singh supra, 24 OA No.450/2021 the Hon'ble Apex Court has held that the applicant cannot be punished, once it is found that there was no delay on his part.
20. A reading of these judgments would establish that when there was no lapse/delay on the part of the candidate, she cannot be punished for no fault of her, though she was found to be more meritorious candidate than the last candidate appointed. Third proviso iso to Regulations 5(2) of the Regulations has ha to be interpreted in the light of these judgments. It is not in dispute that pursuant to the order passed by KSAT and during the pendency of contempt proceedings, appointment order was issued to the applican applicant herein. Merely for the reason that the applicant was not entitled to arrears of salary prior to the date of actual appointment albeit she is entitled for seniority and fixation of pay on par with that of her juniors in the select list, in terms of the order of KSAT, it cannot be held that the applicant's service cannot be considered to be a continu continuous service from 25 OA No.450/2021 her initial date of appointment i.e., 21.05.2008. Th The stance of the State Government that the applicant is not qualified for induction into into the Indian Police Service by way of promotion is unjustifiable, being in violation of Articles 14 and 16 of Constitution of India. Hence in my considered view the OA deserves to be allowed. Accordingly, I concur with the decision of the Hon'ble Member(J) er(J) and respectfully disagree with the order of Hon'ble Member(A). Ordered accordingly.
No order as to costs.
(JUSTICE S.SUJATHA) MEMBER(J) sd.26 OA No.450/2021