Central Administrative Tribunal - Chandigarh
Amarjit Singh Kaleka vs Union Of India (Uoi) And Ors. on 6 April, 2000
JUDGMENT Jasbir S. Dhaliwal, Member (J)
1. Applicant is a non-State Civil Service officer, aspirant for induction into Indian Administrative Service from amongst non-P.C.S. category. The relief claimed by the applicant in Original Application No. 486-PB of 1996 is limited only to the extent of a direction to Respondents 2 & 3 to supply a copy of the order passed on the representation of the applicant in the month of January/February 1986, allegedly not so done inspite of repeated requests/reminders. Facts, in brief, are as under.
2. Applicant was appointed as an E.T.O. in 1974 on qualifying P.C.S. (Class J) (Executive Branch) exam held in 1972. Thereafter, the applicant was promoted as Asstt. Excise & Taxation Commissioner in 1980 from which post he got further promotion as Deputy Excise & Taxation Commissioner in 1990. In 1991, the then Financial Commissioner & Secretary to Govt., Punjab, Excise & Taxation Deptt. recommended the name of the applicant for nomination to IAS on selection basis. A Board, comprising a Member of UPSC as Chairman, the Chief Secretary of the State as the Convenor, inter alia, some other members, was constituted which after due deliberations under the relevant rules and regulations, made recommendations on the basis of interview. The name of the applicant figured at the top, followed by one Sh. A.K. Goyal belonging to the Industries Deptt., Punjab and then two others and there was only one vacancy for non S.C.S. quota for the relevant year. However, as per facts on record, the order of recommendations of the applicant at Sr. No. 1 and that of Sh. Goyal, aforesaid, was reversed a few months later and recommendations made by the State Govt. to notify officers in that order. In this regard, in accordance with provisions of Regulation 3(3) of I.A.S. (Appointment by Selection) Regulations, 1956 the Govt. of Punjab vide their letter dated 12.6.1992 forwarded their observations on the recommendations of the Selection Committee, inter alia, stating that after having carefully gone through the service records of different officers considered by the Selection Committee, while they agreed on ignoring of certain officers correctly, observed that while comparing Sh. A.K. Goyal and Sh. A.S. Kaleka, the Selection Committee did not make full comparison of the overall records of these two officers. The State Govt. further observed that from the perusal of records of these two officers inter se, the overall record of the former was better than that of the latter, whether compared for the last five years or even for the last ten years. Thus, on this basis on a difference of opinion with the Selection Committee the State Govt. recommended Sh. Goyal to be placed at Sr. No. 1 of the Select List and the applicant at Sr. No. 2 while proposing to enhance the number of vacancies. However, consequent upon the aforesaid recommendations, only Sh. A.K. Goyal was appointed to the Indian Administrative Service.
3. On the grievance aforesaid, applicant pleads having attempted departmental remedies but without any avail and consequently proceeded on long leave (Annexure A-1) and submitted representation (Annexure A-2). He pleads that he authorised his counsel for inspection of the record which was not allowed. He sent another letter through counsel (Annexure A-4) which was duly received in the office of Respondents 2 & 3. Applicant was also in receipt of a communication (Annexure A-5) from the State Govt. to the effect that his request had been sent to the Department of Personnel & General Administration for further necessary action. Applicant pleads that the State Govt. had no locus standi to interfere with the recommendations of the Selection Committee and thereby to reverse the order of recommendations. He came to know of rejection of his representation by the Govt. in January/February but pleads that orders passed have not been supplied despite repeated requests and reminders which is illegal, arbitrary and unconstitutional. It is also violative of the principles of natural justice and a hurdle to pursue legal remedy before the Court of law. Hence the present O.A.
4. Three replies, one on behalf of Union of India (Respondent No. 1), second on behalf of State of Punjab (Respondents 2 & 3) and the third on behalf of U.P.S .C. (Respondent No. 4) have been filed by the respondents. The stand taken on behalf of Respondent No. 1 is that the applicant is aggrieved against the action of Respondent No. 2 - the State of Punjab in not forwarding his name included in the 1992 Select List, approved by Respondent No. 4 (UPSC) for appointment to IAS etc. which adversely affected the applicant in the matter of appointment to IAS. The said respondent acts upon the final recommendations, with observations, if any, of the State Govt. on the recommendations of the Selection Committee and final approval by the UPSC, to make appointment. In regard to the other facts relating to the case of the applicant the said respondent have adopted submissions made on behalf of Respondent No. 4 (UPSC) further vindicating their stand for having no objection in the matter of appointment to I.A.S. against the 1992 Select List in accordance with Rules & Regulations.
5. It is pleaded on behalf of Respondents 2 & 3 that a representation of the applicant, dated 2.11.1995 and another representation through FAX from Madison (USA), dated 11.11.1995, were received, as also two more representations with same facts and prayers, but without any number and date. All these representations were considered on merit and filed with orders of the competent authority. In so far as inspection of official records is concerned, the same is not permissible and open for such inspection. No such decision, allegedly taken by respondents in January/February, 1996 to reject the representation of the applicant was taken by the State Govt. and hence letter of the applicant dated 15.3.96, submitted through his counsel, was also filed by the competent authority.
6. Respondents 2 & 3 have further pleaded that the State Govt. considered the recommendations made by the Selection Committee in accordance with Sub-clause (ii) under sub-Regulation (3) of Regulation 3 of 1956 Regulations relating to "the observations, if any, of the State Government on the recommendations of the Section Committee" and forwarded the matter to UPSC with a copy to the Secretary to Govt. of India, Ministry of Personnel, Public Grievances & Pensions etc. vide letter dated 12th June, 1992 (Annexure R-1) for further action required to be taken by Govt. of India in accordance with Regulation 3(4) of the said Regulations. Respondents 2 & 3 have appended Annexure R-2, a notification dated 31.5.1993 relating to the next meeting of the Selection Committee, held on 30.3.1993 whereby appointment of four non-SCS officers to IAS was notified.
7. Respondents 2 & 3 further plead that the matter relates back to the period 1992-93 and even further appointments have been made under Annexure R-2, aforesaid. The instant application is, therefore, time-barred and liable to be dismissed.
8. Respondent No. 4 in their reply, which also entails the stand of Respondent No. 1 (UOI) it is pleaded that the selection process was properly gone through in accordance with the relevant Rules/Regulations and the minutes were signed by the representatives of the State Govt., the Central Govt. and other members of the Selection Committee, without any reservation. In these circumstances, the State Govt. had no locus standi to express any difference of opinion and doing so is a bad precedent. The SelectList of 25.3.1992 has been allowed to lapse and even further four appointments have been made for the subsequent year 1992-93. It is further pleaded that consideration of representations, disposing them of and supplying copies thereof are matters of concern of the State Govt. It is mainly the actions of the State Govt. which have been called in question by the applicant and the O.A. deserves to be dismissed qua to the said respondent.
9. In the second O.A. (No. 158-PB of 1997) filed by the applicant though facts relating to his claim for induction into I.A.S. are almost the same, but the challenge laid is against action of Respondent No. 2 in changing the order of merit as prepared by the Selection Committee constituted under The Indian Administrative Service (Appointment by Promotion) Regulations, 1956, without authority/jurisdiction and ignoring the claim of the applicant. In this O.A. applicant has, inter alia, sought :-
"(i) xxx xxx xxx
(ii) Quashing the action of the respondents in not appointing the applicant to the IAS.; and
(iii) Directing the respondents to appoint the applicant to the IAS with all constitutional benefits such as seniority, arrears of pay etc. etc."
10. Applicant has pleaded that appointment to the I.A.S. by way of selection is governed under Regulations 3, 4 and 4-A of the 1956 Regulations. Regulation 3(3), crucial for determination of the controversy raised in the instant case is reproduced below:
"3(3). That recommendations of the Selection Committee made under Sub Regulation (2) shall be placed before the State Government concerned and the latter shall forward those recommendations to the Commission for approval alongwith -
(i) the confidential record of the officers concerned; and
(ii) the observations, if any, of the State Government on the recommendation of the Selection Committee."
The case set out by the applicant in this O.A. is that the order of recommendations made by the Selection Committee with his name at Sr. No. 1 and that of Sh. A.K. Goyal at Sr. No. 2 could not be interfered with by the State Govt. and reversed while making final recommendations to UPSC/GOI. Applicant pleads that as contemplated under the rules, the State Government has no authority/jurisdiction to intervene in the recommendations made by the Selection Committee which needed to be forwarded to the UPSC as it is. The authority of the State Govt. to give separate observations is limited so as not to over-ride the recommendations of the Selection Committee. Reversing the order of merit is bad, illegal, arbitrary and unconstitutional.
11. For the pleas taken in this O.A., applicant has attempted to draw support from the written replies filed on behalf of Respondents 1 and 4 in O.A. No, 486-PB of 1996 by verbatim reproduction of excerpts from those replies, abridged/abbreviated version of which is given hereinbefore with reference to the facts of the said O.A.
12. To this O.A. as well, written replies on behalf of Union of India, the State Govt. and the U.P.S.C. have been filed by the respondents. The stand taken on behalf of Union of India and U.P.S.C. is all the more same and it is pleaded on behalf of the said respondents that they act upon the recommendations of State Govt. In the Written Statement filed on behalf of Respondents 2 & 3, the said respondents have reiterated their stand in the written statement filed in O.A. No. 486-PB of 1996 by the applicant, also pleading that the second O.A. is not competent and time-barred as well. The said respondents have further pleaded that after the fresh selection was made by the Selection Committee on the basis of its meeting held on 30.3.1993 in the next year and approved by the U.P.S.C. in accordance with the provisions of I.A.S. (Recruitment) Rules, 1954 and Regulations framed thereunder, no appointment can be made thereafter from the previous recommendations of the Selection Committee. To the knowledge of the applicant, there was only one post of 1992. On the next meeting held on 30.3.1993, it was taken into consideration alongwith other three available posts and appointments notified on 31.3.1993 (Annexure R-3) by Respondent No. 1. The O.A, is bad for non-joinder of necessary parties as the other non-State Civil Service officer, likely to be affected, have not been impleaded as respondents by the applicant. In an additional affidavit by Sh. Megh Raj, PCS, Joint Secretary to the Govt. of Punjab in regard to the objection of non-joinder of necessary parties it has been affirmed and declared that approximately 60 officers, already appointed to I.A.S. cadre of Punjab, subsequent to the said meeting of 25.3.1992 would also be affected with regard to their seniority and the year, of allotment. The applicant availed of ex-India long leave from 2.8.1993 to 31.7.1998 to serve ailing mother and to attend children studying in USA, belating any agitation to his grievance.
13. Finding that both the O.As are based on almost the same facts and the reliefs sought in them are related to induction of the applicant into I.A.S., thereby being inter-related, both these OAs. are being disposed of by this common order. We have heard the ld. counsel for the parties and have gone through the pleadings and documents on record.
14. The State Govt. have taken objection that the OAs are barred under the law of limitation. The applicant has tried to counter it by saying that the earlier O.A. was for a direction to respondents to take a decision on his claim and to convey the same, whereas the second O.A. is based on his information that his representations came to be rejected somewhere in January/February, 1996. He has sought directions for appointment to the I.A.S. against the vacancy for the year 1991-92 on the basis of the meeting of the Selection Committee held on 25.3.1992 which had recommended his claim at No. 1. In order to consider the point of limitation, reference has to be made to provisions of Sections 20 and 21 of the Administrative Tribunals Act, With reference to the point when cause of action to a particular applicant arises, the law has been settled by the Hon'ble Supreme Court in the case of S.S. Rathore v. State of M.P., AIR 1990 SC 10 that period of limitation as available under A.T. Act is only one year from the date of passing of final order or from the date of arising of cause of action and in case an appeal/representation is moved by the Govt. servant, he can watt for a period of six months and on expiry of six months, he can file acase in this Tribunal within one year i.e. within total 18 months from the date of arising of the cause of action.
15. It is the admitted case of both the parties that only one post from non-SCS category was to be filled up for the year 1991-92 on the basis of recommendations made by the Selection Committee which held its meeting on 25.3.1992. The State of Punjab gave its opinion upon the selection made by the UPSC observing that the other officer Shri A.K. Goyal, placed on the Select List, should be at No. 1 and the Central Govt., which is the Appointing Authority, did not issue orders of appointment to either the present applicant or the next person Sh. A.K. Goyal. The facts are that the vacancy against which the name of the applicant was approved, was carried over and in a meeting of the Committee held on 30.3.1992, persons for total 4 No. of vacancies, including the one of 1991-92, were considered. Four persons, namely Sh. Amarjit Singh Sidhu, Sh. Varinderjit Singh, Sh. Ashok Kumar Goyal and Sh. Som Parkash were approved and also appointed vide orders dated 31.5.1993 (Annexure R-3). It has to be seen whether the applicant had knowledge of this. For this, his own pleadings, as given in paras (V) and (VI) are being reproduced hereunder:-
"(V) That since only one post in the cadre of IAS was available, Shri A.K. Goel was appointed to the Service.
(VI) That in these circumstances the applicant had no option but to proceed on leave. Consequently, the applicant applied for long leave for 5 years w.e.f. 2.8.1993 to 31.07.1998. The leave of the applicant was sanctioned by the Excise and Taxation department vide their order dated 30.06.1993. A copy of the letter sanctioning the leave of the applicant is attached herewith as Annexure A-1."
It indicates that the applicant proceeded on leave by way of protest against approval of name of Shri A.K. Goyal. He knew that the next meeting of the Selection Committee had not either considered his name or recommended his appointment. The cause of action, thus, arose to the applicant on 30.3.1993 or next on 31.5.1993 when actual appointment of the approved candidates was ordered. Both of his O.As., filed in the year 1996-97 are, thus, much beyond the period of limitation available under the Administrative Tribunals Act, 1985 and are, therefore, not maintainable. Once the objection of limitation is taken, even admission of an O. A. will not automatically have the effect of condoning the delay when the Court is invited to adjudicate the question. In any case, the earlier O.A., even if admitted, related to only a direction to the respondents to supply him some information, whereas the second O.A. is for a specific relief i.e. a direction to appoint him to I.A.S.
16. Applicant is pressing that limitation be counted from January/February 1996 when apparently his representations have been filed which he claims were rejected. An examination of his representations (Annexure A-2 onwards) indicates that the first representation was received only in November, 1995 and the other representations are also of the same month and then of December, 1995. Before such a representation, the applicant had lost his right of remedy through a Court of Law by afflux of time under the law of limitation. A representation itself filed much beyond the period of limitation, even if actually rejected, cannot have the effect of reviving the period of limitation which had fore-closed his remedy through a Court of Law. His contention on this aspect has, thus, to be rejected.
17. Besides the discussion above, we have also considered other contentions raised by the applicant. It is argued by the ld. counsel that the State Govt. had no authority to intervene when the U.P.S.C. had made its final recommendation, after duly considering all the relevant factors and also determining the order of merit. However, examination of the relevant rules for appointment and the Regulations indicates that the contention is not based on law. The I.A.S. (Recruitment) Rules, 1954 entail Rule 8(2) which is relevant for appointment by selection to I.A.S. from non-SCS category. It clearly indicates that it is the Central Govt. which may, in special circumstances and on the recommendation of the State Govt. concerned (emphasis supplied) and in consultation with the Commission and in accordance with such regulations as the Central Govt. may, after consultation with the State Govt. and the Commission from time to time make, recruit to the service any person of outstanding ability and merit. The relevant Regulations are I.A.S. (Appointment by Selection) Regulations, 1956 as produced by both sides. Regulation 3(3) lays down as under:-
"3(3) The recommendations of the Selection Committee made under sub-regulation (2) shall be placed before the State Government concerned and the latter shall forward those recommendations to the Commission for approval along with -
(i) the confidential record of the officers concerned; and
(ii) the observations, if any, of the State Government on the recommendations of the Selection Committee."
The contention has, thus, to be rejected that the State Govt. was powerless to record its recommendations or observations after the meeting of the Selection Committee. UPSC and Respondent No. 1 have taken a plea that the State Govt. has set a bad precedent by recording its dissent on the recommendations of the Selection Committee and that the representatives of the State Govt. were already there in the Selection Committee. A reading of the Regulation, reproduced above, in the opinion of this Court, however, indicates that the State Govt. has been given the power of recording its observations. It is not a mere formality, but a power given by the Regulations and the 1954 Rules in very clear terms that a person's record of work may have deteriorated, that he could not be issued an integrity certificate after being involved in some disciplinary matter or other case, are not exhaustive for recording its observations. The State of Punjab in this case is a separate entitle from the Selection Committee. That some of its officers were constituents of the Selection Committee, will not have the effect of taking away the powers of the State for recording its observations as provided under the rules and the regulations, above mentioned. It is true that such observations should not have the effect of overriding the selection made, but since U.P.S.C. is only a selecting and recommending authority, the Central Govt. can always take into consideration the observations and recommendations of the State Govt. Central Govt. could still go ahead by issuing orders of appointment after taking note of the observations/ recommendations of the State Govt. being the Appointing Authority. In the present case, the Central Govt. has either by omission or consciously not appointed the applicant at all and has included that vacancy for appointment is the next meeting of the Selection Committee of the UPSC which was held on 30.3.1993. Applicant, apparently, accepted that situation for a period of about 4 to 5 years. At this stage, we take support from the pleas taken by Respondent No. 1 in their written reply which clearly indicates that the State Govt. has got a very important role in such selection. We find considerable force in their plea that after approval of the UPSC, appropriate proposals have to come from the State of Punjab.
Since applicant was serving State of Punjab while he was considered by the Selection Committee, the absence of recommendations/forwarding of proposals by the State Govt. can be made a basis by the Central Govt, in not appointing the applicant, They presumed that there could be change in status of the applicant between the date of consideration of his case and the date of approval finally and consideration by the State of the recommendations of UPSC. There could be a number of factors on the basis of which the State Govt. could withhold sending of its proposals after the recommendations of the U.P.S.C. A Court can, however, always ask the State Govt. to place before it the reasons for not sending the proposals or approving the recommendations of UPSC and similarly, the Central Govt. could also take an independent decision after considering the opinion/observations of the State Govt. The Central Govt. here has taken a clear plea that appointment of a non-SCS person placed on a select list, is considered by Respondent No. l only on receipt of necessary proposals from the State Govt. for notifying the appointment of such person and such proposals are accompanied by requisite declaration from the officer having only one living wife and giving unconditional consent for termination of his lien in the State Service on his substantive appointment to I.A.S. These stages were absent in his case as the State Govt. had differed with the recommendations of the UPSC. These pleadings may provide a basis for letting the list lapse, but on consideration of the point of law, after recommendations of the UPSC if the Central Govt. had decided to proceed further for appointing a person on the select list, possibly one could not have disputed their right and existence of power for such appointment.
18. Ld. Counsel for the applicant has argued that the State Govt. could not have the power of nullifying the constitutional authority of U.P.S.C. by its in-action. In the present case, however, this contention has to be rejected for the simple reason that State Govt. had recorded its observations for which under the law it was empowered to record, but it is the Central Govt. which has allowed the list to lapse. We have already observed that the Central Govt. can still take a decision not to appoint a person for some valid reason even after recommendations of UPSC if such reasons do exist, be that in acceptance of recommendations/observations of the State Govt. as basically the UPSC is the selecting and recommending authority. Two of the reasons as mentioned in the Regulations are that if integrity certificate is withheld for some valid reason by the State or a certificate is issued by the State Govt. about deterioration in the working of that particular officer. Though these two reasons were not mentioned by the State Govt., but it has recorded some observations on the basis of service record of the applicant and Sh. A.K. Goyal. The Central Govt. in such a situation has allowed the list to lapse which is apparent from the act and conduct that the said vacancy of 1991-92 was included in the meeting of 30.3.1993.
19. Ld. Counsel for the applicant has further argued that as per the judgment of the Hon'ble Supreme Court, a vacancy falling in a particular year could not be included in the vacancies of subsequent years for selection. Claims that in the year 1991-92 only one vacancy was being considered and applicant having been placed at No. 1 by the Selection Committee, they could not carry it forward and club it with the subsequent three vacancies. This contention is available only under the I.A.S. (Appointment by Promotion) Regulations where the concerned authorities are required to hold a meeting of the Selection Committee every year and are required to prepare select lists for the vacancies of every year separately. Under Appointment by Selection Regulations, such appointment is under Rule 8(2) of the 1954 Rules, aforementioned. It provides that in special circumstances and on the recommendations of the State Govt. concerned the Central Govt. may recruit to the service any person of outstanding ability and merit from the non-SCS category. Similarly, under Rule 4 of these Rules, when selection from non-SCS category is to be considered, it is in special cases that such selection is made. Thus, a decision can be taken not to take any person at all from non-SCS at all by respondents lor a particular year if cither special case is not available or the special circumstances do not exist requiring taking persons from non-SCS category. The principle of carrying forward of vacancy which is meant for non-SCS people, or for thai matter filling up that vacancy from the category of SCS officers, cannot be said to be illegal. The law against clubbing of vacancies as applicable in the case of appointment to I.A.S. by promotion from SCS category, does not apply to appointment by selection cases.
20. Taking up the contention of respondents that not only the case of the applicant is hit by the law of limitation, but it should be rejected as hit by delay and laches, we observe that the same is found to be not without force. Respondents have drawn our attention to Annexure R-4 vide which a number of persons were appointed to I.A.S. by direct recruitment, Annexure R-5 whereby a number of persons were appointed on promotion from P.C.S. and Annexure R-6 under which 4 persons from non-SCS Category were appointed between the year 1992 and the filing of the present OAs. Thus, about 60 officers have already been appointed. We are not recording any findings on the objection of the respondents that the O. A. should be dismissed for non-joinder of necessary parties as those persons, especially persons from non-SCS category should have been impleaded. We, however, find that this O.A. deserves to be dismissed simply for the reason that by his act and conduct of coming to the Court after a number of years from the point of time of cause of action, the cause itself has lost.
21. At this stage, ld. counsel for the applicant submitted that if the applicant is appointed, he will not claim seniority above all those persons as mentioned in the preceding para and would be happy if he is adjusted by mere appointment. This submission, however, cannot be acceded to as the vacancy against which he was approved, stood filled up about 5 years back.
22. For the detailed reasons, discussed above, both the OAs are dismissed.