Central Administrative Tribunal - Chandigarh
Praneet Son Of Late Shri Devinder Sahai vs Union Of India Through The Secretary To ... on 26 August, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION No. 060/00856/2014
Date of filing: 24.09.2014
Order reserved on: 20.08.2016
Chandigarh, this the 26th day of August, 2016
CORAM: HONBLE MR. JUSTICE L.N. MITTAL, MEMBER (J) &
HONBLE SMT. RAJWANT SANDHU, MEMBER (A)
Praneet son of late Shri Devinder Sahai, Deputy Director, Local Government, Punjab, Jalandhar and resident of House NO. 17-B, Old Baradari, Jalandhar City.
.APPLICANT
BY ADVOCATE: SHRI D.V. SHARMA, SR. ADVOCATE ALONGWITH MS. SHIVANI
VERSUS
1. Union of India through the Secretary to Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel, North Block, New Delhi.
2. The Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi through its Secretary.
3. The State of Punjab through the Chief Secretary to Government, Department of Personnel, Civil Secretariat, Sector 1, Chandigarh.
4. Dilraj Singh, IAS, Managing Director, the Punjab State Federation Cooperative Milk Producers Societies Ltd. (Milkfed), Sector 34-A, Chandigarh. (ex-parte vide order dated 6.2.2015)
5. Bhupinder Singh, IAS, Director, State Transport, Punjab, Jeevan Deep Building, Sector 17-B, Chandigarh. (ex-parte vide order dated 6.2.2015)
.RESPONDENTS
BY ADVOCATE: SHRI RAM LAL GUPTA FOR RESPONDENT NO. 1
SHRI B.B. SHARMA FOR RESPONDENT NO. 2
SHRI RAKESH VERMA FOR RESPONDENT NO. 3.
ORDER
HONBLE MR. JUSTICE L.N. MITTAL, MEMBER(J):-
Instant Original Application under Section 19 of the Administrative Tribunals Act, 1985 has been filed by applicant Praneet who is an officer of Punjab Civil Services (PCS) Executive Branch/State Civil Service (SCS) of Punjab. He has not been included in select list for appointment to Indian Administrative Service (IAS) for the vacancies of years 2011 and 2012. There were 7 vacancies of the year 2011 and 5 vacancies for the year 2012. Private respondent no.4 Dilraj Singh is the last person selected for promotion to IAS for the vacancy year 2011 whereas private respondent no. 5 Bhupinder Singh is the last person selected for promotion to IAS for the vacancy year 2012.
2. Vide order dated 3.9.2013 (Annexure A-7), respondent no. 3 State of Punjab imposed punishment of stoppage of one annual increment with cumulative effect on the applicant. The applicant has filed separate Writ Petition in Honble High Court to challenge the said punishment order.
3. The applicant was at serial no. 1 in the zone of consideration. Select Committee meeting (SCM) was fixed for 6.6.2013 for consideration of SCS officers of Punjab for promotion to IAS for the vacancies of the years 2011 and 2012, but was deferred and was ultimately held on 5.9.2013. Vide minutes of the said meeting (Annexure A-4), the applicant was not included in the select list of either year 2011 or 2012. The applicant is aggrieved by his said non- selection.
4. Case of the applicant is that he is having Very Good/Outstanding record of service as per Annual Confidential Reports (ACRs) and, therefore, there was no reason for ignoring the applicant from selection. He has been illegally and arbitrarily ignored from selection on the ground of penalty of stoppage of one increment imposed on him vide order dated 3.9.2013, just two days before the SCM held on 5.9.2013. However, the said penalty could not affect his selection for the vacancy years 2011 and 2012 because there was no penalty in currency during those years. The said penalty could not, therefore, be considered for vacancies of years 2011 and 2012. The said penalty was to be in currency from 1.1.2014 (when increment due on 1.1.2014 was to be stopped) and was to remain in operation for the calendar year 2014 only and could be used against the applicant for the vacancies of the year 2014. Besides it, if SCM had taken place in the year 2011 for the vacancies of 2011 and in the year 2012 for the vacancies of 2012 as per regulations, the penalty order would not have been in existence. Clauses 4.7.1 and 4.7.2 of the Guidelines (Annexure A-6) of Union Public Service Commission (UPSC) respondent no. 2 are arbitrary inasmuch as the currency of penalty flowing in to SCM year is also to be considered to grade the officer as unfit, although the penalty was not in currency in the relevant vacancy year. Imposition of penalty vide order dated 3.9.2013 (Annexure A-7) is also alleged to be malafide exercise of power by respondent no. 3 State of Punjab to deny promotion to the applicant to IAS. Criminal proceedings were not pending against the applicant, although respondent no. 3 wrongly alleged the pendency thereof. On these grounds, the applicant has sought holding of review meeting of selection committee and for including the name of the applicant in the select list for the years 2011 and 2012 by ignoring the penalty imposed on him vide order dated 3.9.2013 (Annexure A-7). The applicant has also challenged clauses no. 4.7.1 and 4.7.2 of the Guidelines (Annexure A-6) issued by UPSC. The applicant has also sought setting aside of appointment of respondents 4 and 5 to IAS.
5. Respondent no. 1 Union of India did not file any written statement stating that it is not a contesting party in this case. Private respondents no. 4 and 5 were proceeded against ex-parte.
6. Respondent no. 2 UPSC in its written statement interalia pleaded that state of Punjab in its proposal dated 12.3.2013 intimated that criminal proceedings were pending against the applicant and further intimated that penalty of censure was imposed on him vide order dated 1.9.2008 and penalty of stoppage of annual increment with cumulative effect was imposed on him vide order dated 3.9.2013. The Committee considered 21 eligible officers in the zone of consideration for the year 2011 and 15 eligible officers for the year 2012 against 7 and 5 vacancies respectively. The applicant was at serial no. 1 of the eligibility list. After examination of service record of the applicant, the Committee assessed him as unfit for both the years due to the penalty of stoppage of annual increment imposed on him vide order dated 3.9.2013. His name could not be included in the select lists of 2011 and 2012 due to availability of officers with better grading and statutory limit on the size of the select list. As per the Guidelines of the Commission, currency of the penalty is to be taken from the date of its imposition. Penalty imposed on the applicant vide order dated 3.9.2013 flowed into the SCM year 2013 and, therefore, in view of clause 4.7.2 of the Guidelines, the applicant was held unfit for both the years. Penalty of censure imposed on the applicant vide order dated 1.9.2008 was ignored for vacancies of years 2011 and 2012. However, penalty of stoppage of increment imposed on him vide order dated 3.9.2013 which flowed into SCM year 2013 was considered and the applicant was accordingly graded as unfit for both the years.
7. Pursuant to order dated 16.4.2015 of the Tribunal, respondent no. 2 filed additional written statement wherein it has been specifically asserted that the applicant was assessed as unfit for both the select lists only due to penalty of stoppage of annual increment imposed on him vide order dated 3.9.2013 and there was no other ground for assessing the applicant as unfit. The criminal proceedings did not have any bearing in overall assessment of the applicant because if on the basis of overall assessment, his name had been included in the select list, it would have been provisional subject to clearance in the criminal proceedings pending against him. However, regarding status of criminal proceedings, the information was supplied by State of Punjab.
8. State of Punjab respondent no. 3 in its reply pleaded that penalty of censure was imposed on the applicant vide order dated 1.9.2008 and penalty of stoppage of annual increment with cumulative effect was imposed on the applicant vide order dated 3.9.2013 and criminal proceedings vide FIR 76 dated 11.8.2013 Police Station City Batala were also pending against the applicant ( the then SDM, Batala) and other staff members under Sections 465, 467 and 120B IPC. All these facts were brought to the notice of the Selection Committee. The applicant was found unfit due to penalty of stoppage of annual increment imposed on him vide order dated 3.9.2013. Said penalty order has been defended to be valid.
9. The applicant filed replication to the written statement of respondent no. 3 wherein he reiterated his version and controverted the stand of the respondent no. 3
10. We have heard counsel for the parties and perused the case file.
11. Counsel for the parties reiterated their respective stands and amplified the same with reference to material on record.
12. The crucial point to be determined is whether the penalty order dated 3.9.2013 (Annexure A-7) could be considered to declare the applicant unfit for promotion to IAS for the vacancies of years 2011 and 2012. Clause no. 4.7(sub-para) of Guidelines (Annexure A-6) issued by UPSC is reproduced hereunder:
The currency of the Penalty is taken from the date from which it is imposed/effective to the date it ceases to be in force. Relevant part of clause 4.7.2 of the Guidelines (Annexure A-6) is also reproduced hereunder:
The Selection Committee meets to prepare year-wise Select Lists of earlier years including/excluding the current Select List:
(a) If the currency of the penalty flows into the SCM year, the officer would be graded as Unfit in the Overall Assessment for all the Select Lists being prepared. Interpretation of the aforesaid clauses in the Guidelines would determine the fate of the instant O.A. The applicant could be declared unfit if the currency of the penalty flowed into the SCM year 2013. To determine whether the currency of the penalty imposed vide order dated 3.9.2013 flowed into the SCM year 2013 or not, sub-para of clause 4.7 of the Guidelines reproduced hereinbefore has to be looked into. The expression therein the date from which it is imposed/effective to the date it ceases to be in force is significant. Use of the word from in the aforesaid expression reveals that currency of the penalty is to be taken from the date from which it is effective and not from the date on which it is imposed. If word on had been used in the aforesaid expression instead of the word from and also if the word effective had not been there in the aforesaid expression, then the currency of the penalty would have been from the date of penalty order i.e. 3.9.2013. However, the expression as it stands would mean that currency of the penalty is to be taken from the date from which it is imposed/effective to the date it ceases to be in force.
13. It is undisputed, as also mentioned in affidavit dated 18.12.2014 (Annexure A-11) (filed on behalf of State of Punjab in another O.A. between the parties), that date of next increment of the applicant was 1.1.2014 and the said increment was not to be given to him under the penalty order dated 3.9.2013. Consequently, the said penalty was imposed from or became effective from 1.1.2014 only and was to remain effective till 31.12.2014. In other words, currency of the said penalty was for the calendar year 2014 and it did not flow in the SCM year 2013. This view finds support from the minutes of SCM dated 5.9.2013 (Annexure A-4). In para 4.4. thereof, penalties imposed on the eligible officers including the applicant were brought to the notice of the Committee. Penalty of stoppage of 4 increments with cumulative effect was imposed on Kiran Rozy vide order dated 11.8.2008 and its currency was mentioned to be from 1.11.2008 to 1.11.2012. Penalty of stoppage of 2 increments with cumulative effect was also imposed on Kiran Rozy on 15.12.2010 and its currency was from 1.11.2012 to 1.11.2014. Similarly, penalty of stoppage of one increment with cumulative effect was imposed on Jai Pal Singh on 27.8.2012 and its currency was mentioned to be from 01.01.2013 to 1.1.2014. Similarly, stoppage of one increment with cumulative effect on Sanjay Popli was imposed on 18.6.2004 and its currency was from 1.1.2005 to 31.12.2005. From all these instances, intimated by State of Punjab itself to the Selection Committee, it is clear that currency of the penalty of stoppage of increment(s) was taken to be from the date of next increment and not from the date of order imposing the penalty. Consequently, in the case of the applicant also, currency of stoppage of one increment with cumulative effect imposed on the applicant vide order dated 3.9.2013 has to be taken from 1.1.2014 ( the date of his next annual increment) till 31.12.2014 i.e. for the calendar year 2014 only and not for the SCM year 2013. It is thus apparent that the applicant could not have been declared unfit for the vacancies of years 2011 and 2012 on account of penalty order dated 3.9.2013 because currency of penalty imposed by the said order was for calendar year 2014 only and did not flow in the SCM year 2013. According to written statement of respondent no. 2 including its additional written statement dated 20.5.2015 filed pursuant to Tribunals order dated 16.4.2015, the applicant was assessed unfit for both the select lists only due to the penalty of stoppage of annual increment imposed on him vide order dated 3.9.2013 and there was no other ground for overall assessing the applicant as unfit. However, the penalty imposed on the applicant vide order dated 3.9.2013 could not be taken into consideration to declare him unfit for the vacancy years 2011 and 2012 as the said penalty was neither in currency in the vacancy years nor in the SCM year. Consequently, action of the official respondents in not promoting the applicant to IAS for the vacancy years 2011 and 2012 on the basis of penalty order dated 3.9.2013 is completely illegal and untenable and is, therefore, liable to be set aside.
14. In the aforesaid context, it is significant to notice that according to clause 2.1 of the Guidelines (Annexure A-6), the Selection Committee normally meets in the year following the vacancy year (SCM year). Even according to Regulation 5(1) of the IAS (Appointment by Promotion) Regulations, 1955 (Annexure A-2), each Committee shall ordinarily meet every year and prepare a list of such members of the SCS as are held by them to be suitable for promotion to the Service (IAS). Honble Supreme Court in 2010 (4) SCC 290 Union of India and Another Vs. Hem Raj Singh Chauhan and Others held that the word ordinarily in the context of right of an employee to be considered for promotion cannot be interpreted in such a way that consideration for promotion is postponed indefinitely thereby defeating the employees right. This judgment also pertains to promotion of SCS officers to IAS and it relates to interpretation of 1955 Regulations (Annexure A-2) and IAS (Cadre) Rules, 1954. So this judgment is also applicable to the instant case. Consequently meeting of Selection Committee should have been held in the year 2012 for the vacancies of 2011. If it had been so held, penalty order dated 3.9.2013 passed much later would not have come in the way of the applicant for his promotion to IAS. Besides it, meeting of the Selection Committee was fixed for 6.6.2013 for vacancies of the years 2011 and 2012, but was deferred and was then held on 5.9.2013. However, if the meeting had been held on 6.6.2013, even then the penalty order dated 3.9.2013 passed subsequently would not have come in the way of the applicant for his promotion to IAS. Penalty order dated 3.9.2013 was passed just two days before the meeting of the Selection Committee which was to be held on 5.9.2013, in an attempt to debar the applicant from his promotion to IAS. In this context, counsel for the applicant submitted that Punjab Public Service Commission twice rejected the proposal of State of Punjab for imposition of the aforesaid penalty on the applicant vide letter dated 4.6.2013 and letter dated 18.7.2013 (Annexure A-5), as also mentioned in penalty order (Annexure A-7). The matter was then taken to the Council of Ministers and then penalty order dated 3.9.2013 was passed just two days before SCM meeting to be held on 5.9.2013.
15. As regards the pendency of criminal proceedings against the applicant, as intimated by the State of Punjab, the said criminal proceedings had no effect on the overall assessment of the applicant as asserted by respondent no. 2 in its additional written statement. If the applicant had otherwise been included in the select list after assessment, his inclusion in the select list would have been provisional subject to clearance in the criminal proceedings. Thus the applaint was not found unfit because of the alleged pendency of the criminal proceedings.
16. However, it has to be noticed that no criminal proceedings were in fact pending against the applicant when meeting of the Selection Committee was held on 5.9.2013. The committee was wrongly informed by State of Punjab that criminal proceedings were pending against the applicant. In this regard, counsel for the applicant referred to status report dated 22.11.2011 (Annexure A-8) for FIR no. 76 dated 11.8.2003 submitted by Assistant District Attorney (Assistant Public Prosecutor) to District Attorney who forwarded the same vide his endorsement dated 23.11.2011 to Additional District Commissioner, Jalandhar with reference to his letter dated 18.11.2011. According to the said status report, the applicant ( the then SDM, Batala) and Naib Tehsildar and other staff members of SDM, Batala were found innocent after an enquiry conducted by a D.S.P. Challan i.e. report under Section 173 of the Code of Criminal Procedure was presented on 23.12.2004 against Dhir Singh accused only. Charge was also framed on 23.5.2005 against Dhir Singh only. Thus since after submission of challan on 23.12.2004 in aforesaid FIR against Dhir Singh accused only, it cannot be said that any criminal proceedings were pending against the applicant in the said FIR. However, inspite thereof, respondent no. 3 State of Punjab informed the Selection Committee in the year 2013 that criminal proceedings were pending against the applicant. Even in its written statement, respondent no. 3 has asserted that criminal proceedings were pending against the applicant and it was also so argued during the course of hearing. This stand of respondent no. 3 has to be strongly disapproved inasmuch as no criminal proceedings were pending in the aforesaid FIR against the applicant after challan was submitted on 23.12.2004 against Dhir Singh accused only.
17. Counsel for the applicant referred to the service record of the applicant as pleaded in paragraph 4.15 of the O.A. to contend that it was Very Good and Outstanding. Even the respondents have found the applicant to be unfit not on the basis of his ACRs but solely on the basis of penalty order dated 3.9.2013 which, however, had to be ignored.
18. For the reasons aforesaid, we allow this O.A. Respondents are directed to hold review meeting of the Selection Committee and to consider the applicant alongwith others in the zone of consideration for promotion to IAS for the vacancies of the years 2011 and 2012 by ignoring the penalty imposed on the applicant vide order dated 3.9.2013 (Annexure A-7) and to take consequential action accordingly. The applicant shall be entitled to al consequential benefits. Appointment of respondents no. 4 and 5 to IAS by promotion for the vacancies of years 2011 and 2012 respectively shall be subject to the outcome of the aforesaid review meeting and be modified accordingly. Needful be done within 3 months from the receipt of certified copy of this order. There shall be no order as to costs.
(JUSTICE L.N. MITTAL) MEMBER (J) (RAJWANT SANDHU) MEMBER (A) Dated: 26.08.2016 `SK 1 (O.A. No. 060/00856/2014)