Central Administrative Tribunal - Patna
Devendra Bhushan Singh vs Personnel,Public Grievances And ... on 16 January, 2024
-1- OA/051/00456/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH
CIRCUIT BENCH, RANCHI
OA/051/00456/2019
With
MA/051/00468/2023
Reserved on: 08.11.2023
Pronounced on: 16.01.2024
CORAM
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
HON'BLE MR. AJAY PRATAP SINGH, JUDICIAL MEMBER
Devendra Bhushan Singh, aged about 59.5 Years, S/o: Late Yadunandan
Patna Singh, R/o: NE12, Manushree Apartment, Road No. 1, Basant Vihar,
Bench
PO+PS: Argora, Dist: Ranchi, Jharkhand.
.... Applicant.
By Advocate:- Mr. Rishikesh Giri
-Versus-
1. The Union of India, through the Secretary, Ministry of
Personnel, Public Grievance & Pension, Government of India,
New Delhi-110001.
2. The State of Jharkhand through the Chief Secretary,
Government of Jharkhand, Project Bhavan, PO+PS: Dhurwa,
Ranchi.
3. The Additional Chief Secretary, Department of Personnel,
Public Grievances and Rajbhasha, Government of Jharkhand,
Project Bhavan, P.O.+ P.S: Dhurwa, Ranchi.
4. The Principal Secretary, Department of School and Literacy,
Government of Jharkhand, Project Bhavan, P.O.+ P.S: Dhurwa,
Ranchi.
5. Union Public Service Commission through its Secretary,
Dhaulpur House, Shahjahan Road, New Delhi- 110069.
.... Respondents.
By Advocate(s): - Mr. Rajendra Krishna, Sr. SC for R-1.
Mr. Ashutosh Anand for R-2 to 4.
Mr. Faiz Ur Rahman for R-5.
-2- OA/051/00456/2019
ORDER
Per S.K. Sinha, A.M.:- Instant OA involves the issue of promotion to IAS of applicant, a State Civil Service officer who was found fit for promotion by the Selection Committee but was included in the 'Select List' provisionally because of an ongoing criminal trial and who was honorably acquitted by the court after expiry of the validity period of the 'Select list'.
2. Applicant's case as set out in the OA is that appointed to State Patna Bench Civil Service in 1988, he was holding the post of Deputy Development Commissioner (DDC) , Khunti when an FIR No. 121/2015 u/s 12 POSCO Act and 354A, 354B and 509 of IPC was registered against him at Khunti PS on 15.07.2015. Applicant was placed under suspension vide order dated 13.08.2015 in view of the criminal case registered against him. The suspension order was revoked on 30.01.2019 on the order of Hon'ble Jharkhand High Court in writ petition WP(S) No. 4413 /2016. Police after investigation submitted charge sheet against applicant u/s 354 (A) & (B), 12 POSCO Act and Section 3 (I) (XI) (XII) of the ST & SC Prevention of Atrocities Act on 15.05.2017. Cognizance in the case was taken on 12.07.2017 and the criminal trial was conducted in the Court of District and Additional Sessions Judge, Khunti No. 1 as POCSO case no. 10/17. The trial concluded on 01.03.2019 and applicant was acquitted honorably. After acquittal, applicant obtained information under the RTI that the selection committee of UPSC had found him fit and included in
-3- OA/051/00456/2019 the Select List of 2015 for promotion to IAS. Applicant made a representation for the promotion which was forwarded by the State Government to UPSC for further necessary action. Aggrieved by inaction in granting him the promotion, applicant preferred this OA praying for following reliefs:-
" (A) That this application is being filed for direction upon the appropriate authority to confirm the provisional promotion granted to the applicant from an appropriate date as a member of Indian Administrative Service.
(B) For direction upon the appropriate authority to produce the minutes of the proceedings, whereby due consideration was given to the candidates Patna falling within the zone of consideration for promotion from State Bench Administrative Services to Indian Administrative Services.
(C ) For a further prayer for any other relief or reliefs for which he is legally entitled."
3. Contesting the OA, Respondent No. 2-4 (Jharkhand State officials) and Respondent No.5 (UPSC) filed separate written statements. Respondent No. 1 did not file separate written statement.
4. Respondents No 2-4 maintained in their WS that the selection committee in its meeting held on 27.04.2018 considered the State Government officials for promotion to IAS and included applicant's name in the 'Select List' for 2015 provisionally subject to his acquittal in the criminal case and grant of integrity certificate by the State Government. The State Government had withheld the integrity certificate in view of the ongoing criminal trial. After the acquittal, applicant submitted a representation on 11.03.2019 requesting for grant of promotion to IAS and the State Government forwarded that to the UPSC for further necessary action. UPSC, vide their communication dated 29.05.2019,
-4- OA/051/00456/2019 held that applicant's claim was not tenable as the 'Select List' had expired on 31st December 2018 in terms of Rule 7 (4) of the Indian Administrative Service (Appointment By Promotion), Regulations, 1955. Applicant's suspension was revoked on 31.01.2018 and he was acquitted of the criminal charges on 01.03.2019 after the expiry of the Select List. Applicant was thus not eligible for promotion to IAS and the OA deserved dismissal.
5. Union Public Service Commission (Respondent No.5) in their Patna Bench written statement stated that in accordance with the provisions of the IAS (Appointment By Promotion) Regulations, 1955, a selection committee presided over by the Chairman/Member of the UPSC makes selection of State Civil Service (SCS) officers for promotion to the IAS. As per the Regulations, the number of vacancies for a particular year is determined by the Department of Personnel & Training (DoP&T), Government of India in consultation with the concerned State Government. Thereafter, the State Government forwards proposal for promotion to IAS of the SCS officers along with the list of eligible officers and integrity certificates, ACR dossiers and details of pending disciplinary or criminal proceeding, if any in respect of each of them. These documents are placed before the Selection Committee which classifies the eligible State Civil Service officers included in the zone of consideration for the vacancy Year as 'Outstanding', 'Very Good', 'Good' and 'Unfit'. In terms of Regulation 5(5), the Select List is prepared by
-5- OA/051/00456/2019 placing the officers classified as 'Outstanding' at the top followed by those classified as 'Very Good' and 'Good' in order of seniority within each category. Further, the name of an officer so included is required to be treated as provisional if the State Government withholds the integrity certificate in respect of such an officer if any disciplinary or criminal proceedings are pending against him.
5.1 UPSC maintained that the Selection Committee Meeting (SCM) in the instant case was held on 27.04.2018 for preparation of the Select List Patna Bench of 2014, 2015 and 2016. Applicant was not eligible for consideration for the Select List of 2014 due to attaining the age of 54 years prior to first January 2014. The DoPT revised the upper age limit eligibility for consideration of SCS officers for promotion to IAS vide notification dated 17.03.2015. Applicant became eligible for the Select List of 2015 and was included at Sl. No.2 in the Select List of 2015 'provisionally' subject to clearance in the pending criminal case and grant of integrity certificate by the state Government. Applicant's name was also considered for the Select List of 2016 and was included at Sl 0A provisionally. Recommendation of the SCM were approved by the Commission vide letter dated 24.05.2018 and the DoP&T acted upon the Select List and appointed the officers included in the Select lists unconditionally to the IAS of Jharkhand cadre vide notification dated 24.05.2018. 5.2 UPSC has further mentioned that for promotion to IAS, an officer's name provisionally included in the Select List has to be declared
-6- OA/051/00456/2019 unconditional by the Commission and for that the State Government has to submit a proposal within the validity period of the Select List. In terms of the Regulation 7(4), a Select List remains valid till 31st December of the year in which Select Committee meeting was held or upto 60 days from the date of approval of the Select List by the Commission, whichever is later. If the State Government sends a proposal to declare a provisionally included officer in the Select List as 'unconditional' within the validity period, the Commission is required to decide the matter within a period Patna of forty five days or before the date of meeting of the next Selection Bench Committee Meeting, whichever is earlier. If the Commission declares the inclusion of provisionally included officer in the Select List as unconditional and final, then the appointment of the concerned officer has to be considered by the Central Government. In the instant case, no proposal was submitted by the State Government to declare the applicant's inclusion in the 'Select List' as unconditional before 31st December 2018, the day Select List's validity expired. Therefore, applicant's inclusion in the Select List was not declared as unconditional and hence, he was not appointed to the IAS. The applicant's representation submitted on 11.03.2019 and forwarded by the State Government was not tenable in terms of the Promotion Regulations.
5.3 UPSC filed a supplementary Written Statement on the issues of not holding the Selection Committee meeting for the vacancies of 2015
-7- OA/051/00456/2019 earlier. The Commission has stated that DoP&T, Government of India determined the vacancies of Jharkhand cadre for promotion to IAS for years 2014 and 2015 on 19.04.2016 and State Government submitted the proposal for promotion on 08.07.2016. There were deficiencies in the proposal which was communicated to the State Government on 26.08.2016 and 27.10.2016. Also, the Principal Bench of Central Administrative Tribunal in two separate OAs (1523/2016 & 3950/2016) passed interim orders to reserve one vacancy for each case from the SCS Patna quota of Jharkhand till further orders. These interim orders were Bench subsequently vacated by the PB vide order dated 04.01.2018. The notice for Selection Committee Meeting for preparation of Select Lists for 2014, 2015 and 2016 was issued on 26.02.2018 and the SCM was finally held on 27.04.2018.
6. After completion of pleadings, we heard the rival counsel and considered their submissions and materials on record.
7. Undisputed facts in this case emerging from the submissions and pleadings are as under.
(i) The UPSC's selection committee meeting for promotion of Jharkhand Civil Service officers into IAS for Select Lists for 2014, 2015 and 2016 was held on 27.04.2018.
(ii) Applicant was assessed by the SCM as 'Very Good' and included in the Select List for 2015 and 2016 provisionally subject to clearance in the
-8- OA/051/00456/2019 criminal case pending against him and issuance of 'Integrity certificate' by the State Government.
(iii) An FIR was registered against the applicant on 15.07.2015 alleging sexual assault on a minor tribal girl. Police filed charge sheet on 15.05.2017 and the court took cognizance in the case on 12.07.2017.
The criminal trial concluded on 01.03.2019 in which the applicant was acquitted honorably.
(iv) Applicant's representation for promotion to IAS in view of his Patna Bench provisional inclusion in the Select List for 2015 and 2016 and acquittal in the criminal case was forwarded by the State Government on 05.04.2019. The representation was rejected by the UPSC on 29.05.2019 on the ground that the Select List had expired in terms of Rule 7 (4) of the IAS (Appointment by Promotion) Regulations, 1955.
(v) Applicant was included in the Select List for 2017 unconditionally by the SCM on 27.10.2020. But he was not granted promotion to IAS as he had already retired on 30.06.2019.
8. Applicant has assailed the denial of promotion to him to IAS on the ground that selection committee meeting was not held by UPSC every year and that after the honorable acquittal from the criminal charges, there was no ground to deny him promotion.
9. Counsel for applicant argued that respondents did not hold the selection committee meetings in 2015, 2016 and 2017. The SCM for
-9- OA/051/00456/2019 Select List 2014, 2015 and 2016 was held in April, 2018. There was no criminal prosecution against the applicant prior to 12.07.2017. L/C submits that it is a settled law that registration of FIR alone cannot be a ground for denial of promotion. If the selection committee meeting were held in 2015 and 2016, applicant would have been included in the Select List unconditionally and granted the promotion. Applicant had thus been denied the promotion for the failure of respondents to hold the selection committee meetings every year. L/C averred that Hon'ble Supreme Patna Court has settled the law that preparation of select-list every year was Bench mandatory. He put reliance on the judgment of Hon'ble Apex Court in the case of Union of India Vs Vipinchandra Hiralal Shah [1996 (6) SCC 721] .
10. Both, Counsel for State Government and counsel for UPSC argued that as per Rule 5(1) of the IAS (Appointment by Promotion) Regulations, 1955 the selection committee meeting was 'ordinarily' required to be held every year. However, not holding the SCM in some year because of unforeseen reasons cannot become a ground to claim for promotion. Both counsel also held that there was no irregularity in including the name of applicant provisionally in the select - list for 2015 and 2016, as a criminal trial was pending against him. Applicant was acquitted of the criminal charges only on 1.3.2019 but the Select Panel for 2015 and 2016 expired on 31st December 2018. As his acquittal was after the expiry of the Select-List, he could not have been granted the promotion.
-10- OA/051/00456/2019
11. UPSC has also provided in WS the facts and circumstances which led to delay in holing the SCM for Select lists for 2014, 2015 and 2016.
12. It transpires from the facts noted above that the Selection Committee meeting for Select List for 2014, 2015 and 2016 was held on 27.04.2018 and the SCM for Select List for 2017 and 2018 was held on 27.10.2010. Delay in holding the Selection Committee meetings seems to be a regular feature. It is in conflict with the provisions at para 5(1) of the IAS (Appointment by Promotion) Regulations, 1955 which reads as Patna Bench under:-
"5. Preparation of a list of suitable Officers:- 5(1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the Service..."
The above provision requires that the Selection Committee meeting should be held every year unless there is a good reason for not doing so.
13. In this regard, Counsel for applicant put reliance upon the judgment Hon'ble Apex Court in Union of India Vs Vipinchandra Hiralal Shah [supra]. The Court in this case relied on the Apex Court's earlier judgment in Syed Khalid Rizvi & Ors .vs. Union of India & Ors [1993 Supp (3) SCC 575] examining Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1995 which is in pari materia with the Regulation 5(1) of the IAS (Appointment by Promotion) Regulations, 1955 and contained the word "ordinarily". Hon'ble Apex Court observed that preparation of the select list every year was
-11- OA/051/00456/2019 mandatory. Observation of the Hon'ble Apex Court is reproduced hereunder.
"......since the preparation of the select list is the foundation for promotion and its omission impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select-list must be constructed to be mandatory. The Committee should, therefore, meet every year and prepare the select-list and be reviewed and revised from time to time as exigencies demand." [p. 586] "Unless the select-list is made annually and reviewed and revised from time to time, the promotee officers would stand to lose their chances of consideration for promotion which would be a legitimate expectation. This Court in Mohan Lal Capoor case held that the Committee shall prepare every year the select-list and the list must be submitted to the UPSC by the State Government for approval and thereafter appointment shall be made in accordance with the rules. We have, therefore, no hesitation to hold that preparation of the select-list every year is mandatory. It would subserve the Patna Bench object of the Act and the rules and afford an higher opportunity to the promotee officers to reach higher echelons of the service. "
14. Counsel for applicant, Mr. Rishikesh Giri has further argued that there was no criminal case or departmental proceeding pending against applicant in 2015 and 2016 and that a departmental proceedings/criminal prosecution can be said to have initiated only when a charge-memo in a disciplinary proceedings or a charge sheet in a criminal prosecution is issued to the employee. Hence, there was no reason to include applicant in the Select List for 2015 and 2016 provisionally. Ld. Counsel put reliance on the judgment of Hon'ble Supreme Court in the case of Union of India Vs K V Jankiraman[1991 SCC (4) 109] holding as under.
"6. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a chargesheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary
-12- OA/051/00456/2019 investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge- sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us.
xxx There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blame worthy in the least, he should not be deprived of any benefits including the salary of the promotional post.
XXXX We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not 'found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings."
Patna Bench
15. Hon'ble Supreme Court has thus settled the law that the sealed cover procedure is to be resorted to by the DPC only after the charge- memo/charge-sheet is issued. However, unlike promotions or grant of MACP, the induction of State Civil Service officers into IAS has been called 'appointment by promotion' and there is no provision for the sealed cover procedure under the IAS (Appointment by Promotion) Regulations, 1955. As per provisions of the Regulations, an officer who is assessed as suitable for appointment to IAS but has a criminal case or departmental proceeding pending is included in the 'Select List' provisionally. The Select List remains valid till 31st December of the year in which the SCM was held or till the expiry of 60 days from the date the Commission accepts the recommendation of the SCM, whichever is later. If the officer, provisionally included in the Select List is not exonerated/acquitted in the criminal case or the departmental proceeding during the validity period of the Select-List, his selection for
-13- OA/051/00456/2019 promotion to IAS would lapse. His suitability would be assessed afresh in the subsequent Selection committee meeting. If the selection committee meeting is not held before his retirement, then officer would not get promotion to IAS even if he is acquitted/exonerated in the criminal/departmental proceeding subsequently. It is trite to say that this would deprive the officer of promotion to IAS despite there being no ground for disqualification.
16. The IAS (Appointment by Promotion) Regulations, 1955 requires Patna Bench that selection committee meeting should ordinarily be held every year.
However, as observed at para 12 above the Selection Committee meetings are not being held in time. This is despite the observation of Hon'ble Apex Court that preparation of Select List every year is mandatory. Not holding the SCM every year creates a situation in which any officer with facts similar to applicant would be denied promotion to IAS. This situation would not arise only if the selection committee meeting were held every year before expiry of the last 'Select-List'.
17. It transpires from above discussions that no departmental proceeding or criminal prosecution was pending against applicant in 2015 and 2016. But the SCM for Select List for 2015 and 2016 was held in April 2018. Had the SCM been held during the respective years applicant would have been included in the Select List unconditionally and granted the promotion to IAS. Applicant was honorably acquitted in the criminal case on 01.03.2019 but the Select List for 2015 and 2016 had lapsed on
-14- OA/051/00456/2019 31st December 2018. Next SCM was held only in October 2020 which included the Applicant at the top of the list of Select List for 2017 but the applicant was not granted promotion to IAS because he had already retired on 30.06.2019. We are of the view that despite honorable acquittal in the criminal case applicant has been denied promotion to the IAS mainly because of laches on the part of respondents in not holding the SCM every year.
18. L/C for applicant put reliance on decision of this Tribunal in in OA Patna Bench No. 051/00203 /2016, Jayshree Jha Vs Union of India. Applicant in this case was recommended for promotion to the IAS with effect from the date her juniors were given promotion i.e. 12.07.2012 in a review SCM held on 13.05.2014. However, she was not given the promotion as she had already retired on 28.02.2014. The Tribunal disposed of the OA with direction to the Union of India through DoPT to issue the applicant's promotion order to the IAS w.e.f. the date of her junior on notional basis and to revise and fix her pension accordingly within three months. The facts of this case are similar to the instant OA to the extent that applicants in both were denied promotion to IAS on the ground that they had retired though they had been held suitable for promotion in the SCM.
19. Considering the entirety of facts and legal aspects discussed above, we are inclined to hold that interest of justice would be served if the applicant was granted promotion to IAS notionally with effect from
-15- OA/051/00456/2019 the date on which his juniors in the Select List for 2015 were given promotion to IAS and actual benefits being given from the date he was acquitted in the criminal prosecution. Accordingly, Respondents are directed to grant applicant notional promotion to IAS w.e.f. the date his juniors in the Select List for 2015 were appointed to IAS and to give actual benefits from 01.03.2019, the date on which he was acquitted of the criminal charges. In this regard, Respondents will issue order fixing applicant's pay and revising his pension and pay arrears of salary and Patna pension within four months of this order.
Bench
20. The OA stands disposed of with aforesaid observations and directions. Pending MAs, if any, also stand disposed of accordingly. No order as to cost.
Sd/- Sd/-
[AJAY PRATAP SINGH] [SUNIL KUMAR SINHA]
Judicial Member Administrative Member
Srk.