Kerala High Court
Director General vs B.Gopal on 27 November, 2012
Author: Manjula Chellur
Bench: Manjula Chellur, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934
WA.No. 2264 of 2012 () IN WPC.11975/2012
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AGAINST THE ORDER/JUDGMENT IN WPC.11975/2012 DATED 27-11-2012
APPELLANT(S)/APPELLANTS:
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1. DIRECTOR GENERAL,
CENTRAL INDUSTRIAL SECURITY FORCE (CISF),
HEADQUARTERS,
BLOCK NO. 13, CGO COMPLEX, LODHI ROAD
NEW DELHI-110 003.
2. UNION OF INDIA
REPRESENTED BY THE SECRETARY
MINISTRY OF HOME AFFAIRS, NORTHBLOCK
NEW DLHI-110001.
BY ADV. SRI.TPM.IBRAHIM KHAN,SENIOR PANEL COUNSEL
RESPONDENT(S)/PETITIONER :
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1. B.GOPAL
COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE
CISF UNIT FACT LIMITED UDYOGAMANDAL
COCHIN-683501.
2. THE UNION PUBLIC SERVICE COMMISSION,
SHAJAHAN ROADM DHOLPUR HOUSE, NEW DELHI-110001
RERPESENTED BY ITS SECRETARY.
R1 BY ADV. SRI.G.SHRIKUMAR (SR.)
BY ADV. SRI.SREEJITH S.NAIR
R2 BY ADV. SRI.GEORGE JOSEPH,SC,UPSC.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31-12-2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MANJULA CHELLUR, C.J
&
K.VINOD CHANDRAN, J.
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W.A.No. 2264 of 2012
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Dated this the 31st day of December, 2012
JUDGMENT
Manjula Chellur, C.J.
This appeal is filed by the appellants aggrieved by the judgment of the learned Single Judge in allowing the Writ Petition directing the appellants to convene a review DPC to consider and assess the merit of the persons at Sl.Nos. 24 and 25 at Exhibit P5 (Tarsem Kumar and the petitioner) respectively to be promoted to the two left over vacancies of the year 2009-2010 and pass consequential orders forthwith. It is necessary to narrate certain facts in order to understand the real question of controversy between the parties.
2. It is not in dispute that paneled persons who are eligible to be considered for promotion as Senior Commandant during the select year 2009-2010 came to be prepared consisting of 25 persons. The select year is 2009-2010. It is not in dispute that the 'select year' means, commencement from 1.4.2009 to 31.3.2010. There were only 15 vacancies during the select year is also WA.2264/12 2 undisputed. Exhibit P5 is dated 30.11.2010. Out of 25 persons, Sl. Nos.1, 2, 3, 5, 6, 7 and 19 were declared as unfit for different reasons. Admittedly, the writ petitioner was Sl.No.25. Exhibit P3 is the final list consisting of only 13 persons including the petitioner and also another person above him by name Tarsem Kumar of Sl.No.24.
3. According to the petitioner before the learned Single Judge, as on the date of DPC meeting, there were clear vacancies of 15 in number, therefore, even Sl.Nos. 24 and 25 ought to be considered on par with Sl.No.20 Mr.A.K.Srivastava. As Mr.Shreekant Kishore at Sl.No.23 came to be considered against the vacancies created on account of retirement of Mr.A.K.Srivastava Sl.No.20, even Sl.Nos.24 and 25 ought to have been considered against the vacancies that arose on account of superannuation of Sl.No.16 Mr.S.Kumberwar and Sl.No.21 Mr.Lalji Ram Kaul. To substantiate their stand, the writ petitioner contended before the learned Single Judge that DPC was convened very late. Therefore, the entire dichotomy arose and on account of delayed DPC meeting, there were three vacancies, hence, when the writ petitioner and other persons were in zone of consideration, there was no justification to exclude their names WA.2264/12 3 when vacancies were very much available on the date of convening of DPC, i.e., 30.11.2010. They also placed reliance on Exhibit R1(b) to contend that DPC could have extended panel in the light of vacancies that arose on account of retirement of Sl.Nos.16 and 21.
4. The learned Single Judge, after referring to Exhibit R1(b) and placing reliance on Exhibit P4, opined that on account of delayed DPC meeting, the petitioner and others were not to be excluded from the selection as it is not on account of their fault why DPC was delayed. According to the learned Single Judge, the contingencies that arose on account of retirement of persons, who were in the zone of consideration, have to be understood in accordance with the guidelines at Exhibit P4 dated 9.4.1996 and the same year referred to at Exhibit P4 has to be understood as the date of convening the DPC meeting. Opining as stated above, the leaned Single Judge directed to convene a review DPC to assess the fitness of the persons at Sl.Nos.24 and 25. Aggrieved by the same, the present appeal is filed.
5. According to the appellant department, the vacancy was filled up by considering the case of Mr.Shreekant Kishore as Mr.A.K.Srivastava, who retired in the select year 2009-2010 and it WA.2264/12 4 was purely done in accordance with the guidelines at Exhibits R1
(b) and P4. Vacancies created on account of retirement of Mr.S.Kumberwar and Mr.Lalji Ram Kaul could not be considered as they retired beyond the select year of 2009-2010, i.e., Mr.S.Kumberwar retired on 1.8.2010 and Mr.Lalji Ram Kaul retired on 31.7.2010.
6. The entire controversy revolves round the guidelines issued by the Department of Personnel and Training (DoPT) from time to time. Exhibits R1(b) and P4 are the relevant documents so far as the present controversy is concerned. Exhibit R1(b) is an office memorandum clarifying the procedure to be followed by DPC with regard to retired employees. Paragraph 3 of Exhibit R1
(b) is relevant for the present case, which reads as under:
"3. The matter has been examined in consultation with the ministry of Law (Department of Legal Affairs). It may be pointed out in this regard that there is no specific bar in the aforesaid Office Memorandum dated April 10, 1989 or any other related instructions of the Department of Personnel and Training for consideration of retired employees, while preparing year-wise panel(s), who were within the zone of consideration in the relevant year(s). according to legal opinion also it would not be in WA.2264/12 5 order if eligible employees, who were within the zone of consideration for the relevant year(s) but are not actually in service when the DPC is being held, are not considered while preparing year-wise zone of consideration/panel and, consequently, their juniors are considered (in their laces) who would not have been in the zone of consideration if the DPC(s) had been held in time. This is considered imperative to identify the correct zone of consideration for relevant years(s). Names of the retired officials may also be included in the panel(s). Such retired officials would, however, have no right for actual promotion. The DPC(s), may, if need be, prepare extended panel(s) following the principles prescribed in the Department of Personnel and Training Office Memorandum No.22011/8/87-Estt.(d) dated April, 9, 1996."
7. As we understand from the above quoted paragraph, it says, while preparing year-wise panel, who were within the zone of consideration in the relevant year, there is no bar to exclude persons, who are going to be retired in that year as long as they were in the zone of consideration. It further says, the juniors could be considered to those vacancies, as the retired persons factually cannot be considered for promotion as long as the juniors were in WA.2264/12 6 the zone of consideration. It further says, to prepare extended panel, DPC has to follow the principles prescribed in the DoPT letter dated 9.4.1996, which is at Exhibit P4. In accordance with paragraph 3 quoted above, as we note from Exhibit P5, the list of persons, who were within the zone of consideration, came to be prepared, which consists of 25 persons. So far as Sl.Nos.24 and 25, no assessment came to be made in accordance with the guidelines as there was no need to consider their names at the relevant point of time when DPC convened its meeting. The list of 15 persons was also prepared. Panel of 15 general vacancies for the year 2009-2010 also came to be prepared consisting of 15 names including the names of Mr.S.Kumberwar at Sl.No.10, Mr.A.K.Srivastava at Sl.No.13 and Mr.Lalji Ram Kaul at Sl.No.14. As per the extended panel, Mr.Shreekant Kishore was considered in the place of Mr.A.K.Srivastava, who retired on 31.12.2009. This is what Exhibit P5 says. The argument of learned counsel for the respondent-writ petitioner is that the principle applied to the case of vacancy of Mr.A.K.Srivastava equally has to be applied to the case of vacancies of Mr.S.Kumberwar and Mr.Lalji Ram Kaul in accordance with Exhibit R1(b) at paragraph 3, by which DPC was empowered to prepare extended panel.
WA.2264/12 7
8. As a matter of fact, Mr.S.Kumberwar and Mr.Lalji Ram Kaul could not be promoted, as the DPC met only on 31.11.2010 after their retirement. But, as per the instructions of DoPT at Exhibit R1(b), their names were included as they were in the zone of consideration. However, the extended panel had to be prepared in accordance with Exhibit P4. Paragraph 2 of Exhibit P4 is very relevant for the present controversy, which reads as under:
"2. The matter has been examined in consultation with the UPSC and it has been decided that DPCs shall prepare an extended panel only in the following contingencies:
i) When persons included in the panel are already on deputation or whose orders of deputation have been issued and will be proceeding on deputation shortly for more than a year or
ii) When persons included in the panel have refused promotion on earlier occasions and are under debarment for promotions;
or
iii) When officers included in the panel are retiring within the same year provided there is no change in the zone of consideration by the expected date of their retirement;"
WA.2264/12 8
9. We are concerned with paragraph 2(iii) of Exhibit P4. The above paragraph clearly indicates, DPC can prepare extended panel only when the officers included in the panel are retiring within the same year provided there is no change in the zone of consideration by the expected date of their retirement. The department is relying on paragraph 3 quoted above to explain their stand why Sl.Nos.24 and 25 are excluded from consideration in the DPC held on 30.11.2010.
10. If we take into consideration the contingency on account of delayed DPC, one has to look into the guidelines for preparing the extended panel. The logical argument of learned counsel for the respondent-writ petitioner that paragraph 2(i) of Exhibit P4 in the case of an officer, who is on deputation for more than one year may not be available in the case of paragraph 2(iii) and 2(i). When the writ petitioner claims his right on account of retirement of two persons as on the date of DPC meeting, the guideline applicable is paragraph 2(iii) and nothing else. We are not expected to read in between the lines and then conclude that all the guidelines would extend to the benefit of the writ petitioner apart from paragraph 2(iii) of Exhibit P4. There is no scope for such extended or expanded meaning so far as extended panel. The WA.2264/12 9 extended panel, which the DPC could prepare has to be strictly in accordance with the guidelines at Exhibit P4.
11. Then coming to the question what exactly the retirement within the same year would mean. If we read Exhibit R1(b) and the guidelines at Exhibit P4, it shall not take us to any other meaning than the select year. In other words, the 'same year' here is with regard to select year. At Exhibit P5 it is clearly mentioned as general vacancies of 2009-2010 (from 1.4.2009 to 31.3.2010). Reading of paragraph 2(iii) of Exhibit P4 with reference to the vacancy position as Mr.Kumberwar and Mr.Lalji Ram Kaul retired much later than the select year which ended on 31.3.2010 the extended panel could not include these vacancies so far as general vacancies of 2009-2010. The names of Mr.A.K.Srivastava, Mr.Kumberwar and Mr.Lalji Ram Kaul had to be included in the list as they were within the zone of consideration as per the guidelines at Exhibit R1(b) and the extended panel has to be prepared as per the guidelines at Exhibit P4, as Exhibit R1
(b) refers to Exhibit P4 letter dated 9.4.1996.
12. In that view of the matter, the DPC could not have considered Sl.Nos.24 and 25 against the vacancies created by the retirement of Mr.Kumberwar and Mr.Lalji Ram Kaul. As per the WA.2264/12 10 very same guidelines at Exhibits R1(b) and P4, these two vacancies have to be shifted to the next select year, i.e., 2010 and 2011. The vacancies of Mr.Kumberwar and Mr.Lalji Ram Kaul have to be considered for the select year 2010-2011 which was in fact considered. But, unfortunately, the writ petitioner was found below the benchmark. Therefore, his case was not considered.
In that view of the above reasoning, we are of the opinion, the Writ Appeal deserves to be allowed by setting aside the judgment of the learned Single Judge. Accordingly, the Writ Appeal is allowed.
MANJULA CHELLUR, CHIEF JUSTICE K.VINOD CHANDRAN JUDGE vgs1.1.13