Central Administrative Tribunal - Ernakulam
K A Muhammed Faizel vs M/O Home Affairs on 26 September, 2017
Author: P. Gopinath
Bench: P. Gopinath
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 953 of 2013
Original Application No. 861 of 2013
&
Original Application No. 180/00812/2014
Tuesday, this the 26th day of September, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
Hon'ble Ms. P. Gopinath, Administrative Member
1. Original Application No. 953 of 2013 :
K.A. Muhammed Faizel, aged 55 years, S/o. Ammu Sahib,
Superintendent of Police, Vigilance and Anti-Corruption Bureau,
Central Range, Ernakulam, Kochi - 682 017, residing at No. B2,
Express Garden, Kaloor, Kochi - 862 017. ..... Applicant
(By Advocates : Mr. C.P. Sudhakara Prasad, Sr.
Mr. Hood T.B.)
Versus
1. Union of India, represented by its Secretary,
Ministry of Home Affairs, New Delhi - 110 012.
2. Union Public Service Commission, represented by its Secretary,
Shahjahan Road, New Delhi - 110 069.
3. The Selection Committee for Indian Police Service, represented by
Chairman, Union Public Service Commission, Shahjahan Road,
New Delhi - 110 069.
4. State of Kerala, represented by the Chief Secretary,
Government Secretariat, Thiruvananthapuram - 695 001.
5. State Police Chief, Police Head Quarters,
Thiruvananthapuram - 695 001.
6. D. Sali, Superintendent of Police (Non IPS) (Retired),
Nisha, 2/88, Kalaripparambu PO, Kozhikode - 673 010.
7. K. Vijayan (Sr), Superintendent of Police,
C.B.C.I.D., Organized Crime Wing III,
Palakkad - Pin 678 001.
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8. T.K. Haridas, Superintendent of Police (Rtd.),
Suprabha, TC 34/1533, Chittattinkara, Vattiyoorkavu,
Thiruvananthapuram - 695 013.
9. B. Ashokan, Superintendent of Police (Non IPS),
Crime Branch CID, Organized Crime Wing, Kannur - 670 001.
10. V.N. Sasidharan, Superintendent of Police (Non IPS),
Vigilance and Anti Corruption Bureau, Special Cell,
Thiruvananthapuram - 695 001.
11. Mohammed Iqbal, Superintendent of Police (Non IPS),
SBCID (Intelligence Wing), Thiruvananthapuram - 695 001.
12. D. Madhu, Superintendent of Police (Retired),
TC 27/1101(1), Vanchiyoor, Thiruvananthapuram - 695 305.
13. Thomas Jolly Cherian, Superintendent of Police (Rtd),
Jolly Dale, TC 32/881, Vettukadu PO Beach,
Thiruvananthapuram - 695 007.
14. P.A. Valsan, Superintendent of Police (Rtd),
Green Field, Arakkilad, Puthur, Vadakara,
Kozhikode - 673 104.
15. Suresh Kumar V., Superintendent of Police (Rtd),
Suryamangalam, Nangyarkulangara, Harippad,
Alappuzha - 690 813.
16. Alex M. Varkey, Superintendent of Police (Rtd),
Moolakunnel House, A.O. Joseph Road, Pala,
Kottayam - 686 575.
17. Harikumar K.L., Superintendent of Police (Rtd),
Manimalary, Edagramam, Karamana PO,
Thiruvananthapuram - 695 002. ..... Respondents
[By Advocates : Mr. P.R. Sreejith, ACGSC (R1),
Mr. Thomas Mathew Nellimoottil (R2&3),
Mr. M. Rajeev, GP (R4&5),
Dr. K.P. Satheesan, Sr.
Mr. P. Mohandas (R6, 13 & 15 to 17),
Mr. S. Sreekumar, Sr.
Mr. Saju Wahab (R7)
Mr. M.R. Hariraj (R8),
Mr. R. Sreeraj (R9) and
Mr. K. Nirmalan (R10 & 11)]
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2. Original Application No. 861 of 2013 -
T. Gopalakrishna Pillai, aged 56 years,
S/o. Thankappan Pillai, Retired Deputy Commissioner of
Police, Cochin City, residing at Kalathil House,
Arinalloor South PO, Kollam - 690 538. ..... Applicant
(By Advocate : Mr. P. Ramakrishnan)
Versus
1. Union of India, represented by its Secretary,
Ministry of Home Affairs, New Delhi - 110 012.
2. Union Public Service Commission, represented by its Secretary,
Shahjahan Road, New Delhi - 110 011.
3. The Selection Committee for Indian Police Service, represented by
Chairman, Union Public Service Commission,
represented by its Secretary, Shahjahan Road,
New Delhi - 110 011.
4. State of Kerala, represented by the Chief Secretary to
Government of Kerala, Government Secretariat,
Thiruvananthapuram - 695 001.
5. The State Police Chief, Police Head Quarters,
Thiruvananthapuram - 695 001.
6. D. Madhu, Superintendent of Police,
TC 27/1101(1), Vanchiyoor PO,
Thiruvananthapuram - 695 305.
7. Mohammed Iqbal, Superintendent of Police,
SBCID (Intelligence Wing), Thiruvananthapuram - 695 001.
8. K.K. Jayamohan, Superintendent of Police,
Port Registration Officer, Trivandrum Air Port,
Trivandrum - 695.
9. V. Suresh Kumar, Superintendent of Police,
Suryamangalam, Nangyarkulangara PO, Harippad,
Alappuzha - 690 513.
10. M. Mohammad Shabeer, Superintendent of Police,
SBCID, Pattom, Trivandrum - 695 035.
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11. C.P. Gopakumar, Superintendent of Police,
Devaswom Vigilance Officer, Travancore Devaswom Board,
Nandancode, Trivandrum - 695 003.
12. Alex M. Varkey, Superintendent,
Mulakkunnel House, A.O. Joseph Road, Pala PO,
Kottayam - 686 576.
13. J. Christopher Charles Raj,
Superintendent of Police, SBCID,
Pattom, Trivandrum - 695 004.
14. Thomas Jolly Cherian, Rretd. Superintendent of Police,
Jolly Dale, TC 32/881, Vettukadu PO, Beach,
Thiruvananthapuram - 695 007.
15. P.A. Valsan, Superintendent of Police,
Economic Offence Wing 2, Crime Branch CID,
Kozhikode - 673 010.
16. G. Somasekhar, Superintendent of Police, AIG II,
Police Head Quarters, Thiruvananthapuram - 695 001.
17. D. Sali, Retired Superintendent of Police,
Dakshin Dwaraka D 2012, House No. 3/1162,
Karapparambu PO, Kozhikode - 673 010.
18. K.L. Harikumar, Retired Superintendent of Police,
Manimalary, Edagramam, Karumam,
Thiruvananthapuram - 695 002.
19. B. Ashokan, Superintendent of Police,
Crime Branch CID, Organized Crime Wing, Kannur - 670 001.
20. V.N. Sasidharan, Superintendent of Police,
Vigilance & Anti Corruption Bureau, Special Cell,
Thiruvananthapuram - 695 001.
21. K. Vijayan, Senior Superintendent of Police,
C.B.C.I.D., Palakkad - 678 001.
22. N. Vijayakumar, Superintendent of Police,
Security & Vigilance Officer, DCG, Padmanabha Swamy
Temple, Thiruvananthapuram - 695 023.
23. N. Ramachandran, Superintendent of Police,
Vigilance Officer, KSE Board, Thiruvananthapuram - 695 004.
24. P.N. Unnirajan, Superintendent of Police,
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State Temple Anti Theft Squad, Crime Branch CID,
Eanchakkal PO, Thiruvananthapuram - 695 008.
25. T.K. Haridas, Superintendent of Police, Vigilance Officer,
Excise Head Quarters, Thiruvananthapuram - 695 001.
26. K.V. Joseph, Superintendent of Police, Vigilance & Anti Corruption
Bureau, Kottayam - 686 001. ..... Respondents
[By Advocates : Mr. N. Anil Ravi, ACGSC (R1),
Mr. Thomas Mathew Nellimoottil (R2&3),
Mr. M. Rajeev, GP (R4&5),
Mr. K. Nirmalan (R7, 8, 10, 11, 13, 16, 20, 22, 23, 24,
& 26)
M/s. Elvin Peter P.J & Mr. T.G. Sunil (R15),
Dr. K.P. Satheesan, Sr.
Mr. M.R. Jayaprasad (R17),
Mr. R. Sreeraj (R19),
Mr. S. Sreekumar, Sr.
Mr. Saju Wahab (R21) and
Mr. M.R. Hariraj (R25)]
3. Original Application No. 180/00812/2014 -
K.A. Muhammed Faizel, aged 56 years, S/o. Ammu Sahib,
Retired Superintendent of Police (Non-IPS),
Kerala Police Service, residing at No. B2,
Express Garden, Kaloor, Kochi - 682 017. ..... Applicant
(By Advocates : Mr. T.B. Hood)
Versus
1. Union of India, represented by its Secretary,
Ministry of Home Affairs, New Delhi - 110 012.
2. Union Public Service Commission, represented by its Secretary,
Shahjahan Road, New Delhi - 110 069.
3. The Selection Committee for Indian Police Service, represented by
Chairman, Union Public Service Commission, Shahjahan Road,
New Delhi - 110 069.
4. State of Kerala, represented by the Chief Secretary,
Secretariat, Thiruvananthapuram - 695 001.
5. State Police Chief, Police Head Quarters,
Thiruvananthapuram - 695 001. ..... Respondents
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[By Advocates : Mr. Sinu G. Nath, ACGSC (R1),
Mr. Thomas Mathew Nellimoottil (R2&3) and
Mr. M. Rajeev, GP (R4&5)]
These applications having been heard on 04.08.2017, the Tribunal on
26.09.2017 delivered the following:
O R D E R (Common)
Hon'ble Mr. U. Sarathchandran, Judicial Member -
Since these three cases are relating to 2011 select list of officers of Kerala Police for promotion to the IPS Kerala cadre for the vacancy year 2011 and since the allegations and pleadings are more or less similar in these cases, except for the slight variations in the relief sought, these cases were heard together and are being disposed of by way of a common order.
2. OA-953-2013 - Applicant has approached this Tribunal being aggrieved by selection and appointment of officers to the Indian Police Service (IPS) for the vacancy years 2010-2011 in accordance with the Indian Police Service (Appointment by Promotion) Regulations, 1955 [hereinafter referred to as 'the Regulations']. According to him the 3 rd respondent selection committee which is entrusted with the duty to prepare list of suitable officers for promotion to IPS flawed in making a proper and fair selection ignoring or paying no attention to the crucial documents and vital inputs which ought to have been given by the State Government, resulting in grave injustice to the applicant. He states that inclusion of certain tainted State police officers in the select list is indicative of unfair selection which requires to be intervened by this Tribunal. He seeks the relief as under:
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"i) Declare that inclusion of respondents 6 to 17 in Annexure A1 Select List for appointment by promotion to Indian Police Service for the years 2010 and 2011 is arbitrary and illegal.
ii) Call for the records relating to Annexure A1 Select List for appointment by promotion to Indian Police Service for the years 2010 and 2011 and set aside the same to the extent it includes the respondents 6 to 17.
iii) Call for the records relating to Annexure A2 appointment order issued by the 1st respondent and set aside the same in so far as it relates to the appointment of the respondents 7, 10 and 11 to the Indian Police Service.
iv) Issue appropriate direction or order, directing the respondents 1 to 3 to hold a Review Selection Committee for selection to Indian Police Service (Kerala cadre) against the vacancies of the year 2010 and 2011 and to include the applicant in the select list for the year 2011 within a time frame to be fixed by this Honourable Tribunal.
v) Issue appropriate direction or order, directing the 1 st respondent to appoint the applicant to Indian Police Service, and
vi) such other appropriate direction or order as this Honourable Tribunal may deem fit and proper in the interest of justice. "
3. According to the applicant he was included in the zone of consideration as per Annexure A4 list prepared for the vacancy year 2011. The selection committee while preparing the Annexure A1 select list took into consideration of respondents Nos. 6 to 17 who according to the applicant are tainted or ineligible police officers and thereby losing his chance of being included in that select list. He was at serial No. 24 in Annexure A4 list for the vacancy year of 2011 and for the aforesaid reason he happened to be not included in Annexure A1 select list or in Annexure A2 list appointing the finally selected members of the Kerala Police Service to the IPS.
4. Applicant alleges infirmities in respect of respondents Nos. 6 to 12 and state that respondents Nos. 6, 8 and 12 to 17 have retired from service much before the publication of Annexure A1 select list and that most of 8 them had retired even before the meeting of the selection committee on 21.12.2012. He states that respondent No. 6 who is included in Annexure A1 select list did not have the minimum 8 years service as Deputy Superintendent of Police and respondent No. 7 who had attained the age of 54 in 2010 was permitted to be included in the zone of consideration after permitting his date of birth to be corrected. Correction of date of birth of a Government employee after publication of final seniority in the cadre without notice to others who are likely to be affected by such correction is illegal, arbitrary and is in violation of the principles of natural justice. Similarly the 6th respondent's position in the seniority list was re-assigned pursuant to the judgment of the High Court of Kerala in OP No. 35398/2002 and WP© No. 7801/2005 filed by him in which applicant was not a party. Applicant had filed Writ Appeal Nos. 953/2013 and 1019/2013 which are pending before the High Court. Respondent No. 8, according to the applicant, is an accused in a criminal case charge sheeted by the Central Bureau of Investigation (CBI) and the Government of Kerala accorded sanction under Section 197 of Criminal Procedure Code to prosecute him for the offences punishable under various provisions of the Indian Penal Code. As per Annexure A8 information obtained by invoking Right to Information Act, respondent No. 8 was graded only 'satisfactory' by the State Police Chief. Applicant contends that the inclusion of respondent No. 8 in the select list by the selection committee classifying him as "very good"
is illegal and arbitrary.9
5. According to the applicant though respondent No. 9 was considered for promotion to IPS for the vacancy year 2008-2009 he was not promoted for want of integrity certificate. He was facing disciplinary action ordered by the State Government pursuant to the recommendation by the Director, Vigilance & Anti Corruption Bureau vide Annexure A9 Government order.
6. The applicant alleges that respondent No. 10 also was facing proceedings for grave dereliction of duty and misconduct and was awarded with punishment of bar of increments for two years with cumulative effect though he was exonerated from the charges on 2012 on filing a petition.
Therefore, he also ought not to have been considered in the select list either for 2010 or 2011 based on the orders issued in 2012. Applicant points out that respondent No. 11 was arrested by the police from a brothel and he had escaped from the police custody. Respondent No. 12 was suspended from service for illegal transport of river sand. Yet the selection committee granted them 'very good' grades to them who have brought ignominy to the entire police force in the State.
7. Applicant continues to state that the general reputation of respondents Nos. 8, 10 and 12 was graded by the Home Department of the State either 'bad' or 'satisfactory' vide Annexure A10 'UO Note' sent by the Home Department to the General Administration Department. Respondents Nos. 7,
9 and 10 were in the zone of consideration for both 2010 and 2011 vacancies. They were graded only 'good' by the selection committee for the vacancy year 2010 but the same committee which met on the same day 10 notified them as 'very good' for the vacancy year 2011 which defies logic and reasoning.
8. Respondent No. 1 Union of India filed reply statement contending that it is for the Government of Kerala and UPSC to state as to why the alleged tainted officers have been included in the select list. According to respondent No. 1 it only appoints the officers included unconditionally in the select list prepared by the selection committee constituted by the UPSC.
9. Respondent No. 4 State Government states that it had included all eligible officers in the zone of consideration for the years 2010 and 2011 as per seniority list and forwarded the proposal to the UPSC in terms of the Regulations intimating the details of disciplinary proceedings and criminal proceedings pending against them. Preparation and finalisation of the select list is a matter entirely under the domain of the UPSC and appointment of such officers to IPS is done by the Ministry of Home Affairs, Government of India. After the UPSC convened the selection committee meeting on 21.12.2012 the State Government offered its comments on the minutes of the selection committee meeting. The UPSC has approved the select list on 5.7.2013 and subsequently the Ministry of Home Affairs notified the select list of 2010 and 2011 appointing 12 officers from the select list of 2010 and 2011 vide Annexure R4(a) and R4(b). Those officers who have been omitted for promotion to IPS in the notification filed OAs Nos. 744/2013, 750/2013 and 778/2013 before this Tribunal and this Tribunal had allowed the OA vide order dated 14.10.2013. In compliance with the aforesaid order of this 11 Tribunal in the above OAs the Ministry of Home Affairs, Government of India had issued notification appointing all officers included in the select list other than those who were included as 'provisional' vide Annexure R4(c) notification dated 30.10.2013. There was no change in the criminal/disciplinary status of Shri T.K. Haridas, Shri B. Asokan and Shri D. Madhu who were provisionally included in the select list and therefore their inclusion in the select list continued to remain as 'provisional'. The State Government state that they have no specific role regarding the relief sought by the applicant and hence pray for dismissing the OA.
10. Respondents Nos. 2 & 3 UPSC and Selection committee filed reply statement describing the procedure followed in the selection committee for appointment to IPS by promotion. The procedure as stated in the reply statement is extracted below:
"4.1 At the outset, it is submitted that the Union Public Service Commission, being a Constitutional body, under Articles 315 to 323 Part XIV (Services under the Union and the States) Chapter-II of the Constitution, discharge their functions, duties and obligations assigned to them under Article 320 of the Constitution. Further, by virtue of the provisions made in the All India Services Act, 1951, separate Recruitment Rules have been framed for the IAS/IPS/IFS. In pursuance of these Rules, the IPS (Appointment by Promotion) Regulations, 1955 ("Promotion Regulations" for short) have been made. In accordance with the provisions of the said Regulations, the Selection Committee, presided over by the Chairman/Member of the Union Public Service Commission, makes selection of State Police Service ["SPS" for short] officers for promotion to the Indian Police Service ["IPS" for short]. Further, regulations envisage distinct roles in respect of the State Government, the Union Public Service Commission and the Central Government with specific mandates in the process of preparation of the select list right from the stage of determination of vacancies, drawing list of eligible officers, submission of complete proposal to the Commission and finally appointment.
4.2 It is submitted that as per the Regulation 5(1) of the Promotion Regulations, the number of vacancies against which selection is made for a particular Select List year for promotion to the IPS of a State Cadre is determined by the Govt. of India, (Ministry of Home Affairs) in consultation with the State Government concerned. Thereafter, the State Government forwards a proposal to the Commission along with the seniority list, eligibility list (up to a maximum of three times the number of vacancies) of the State Service Officers, Integrity Certificates, certificates regarding disciplinary/criminal proceedings, certificate regarding communication of adverse remarks, details of penalties imposed on the 12 eligible officers etc. and complete ACR dossiers of the eligible officers.
4.3 The above documents received from the State Govt., after they are examined by the Commission for completeness and deficiencies resolved, are placed before the Selection Committee when they meet for selection for the recruitment year. In accordance with the provisions of Regulation 5(4) of the Promotion Regulations, the aforesaid Committee duly classifies the eligible State Civil Service officers included in the zone of consideration as 'Outstanding', 'Very Good', 'Good' or 'Unfit', as the case may be, on an overall relative assessment of their service records. Thereafter, as per the provisions of Regulation 5(5) of the said Regulations, the Selection Committee prepares a list by including the required number of names first from the officers finally classified as 'Outstanding', then from amongst those similarly classified as 'Very Good' and thereafter from amongst those similarly classified as 'Good' and the order of names within each category is maintained in the order of their respective inter-se seniority in the State Police Service..................
4.4 As per the provisions of Regulation 6 and 6-A of the Promotion Regulations, the State Govt. and the Central Govt. are required to furnish their observations on the recommendations of the Selection Committee. After taking into consideration the observations of the State Govt. and the of the Central Govt. and the requisite records received from the State Government, the Commission take a final decision on the recommendations of the Selection Committee with or without modifications in terms of the provisions of Regulation 7. The appointments to the IPS are made from the Select List by the Govt. of India, Ministry of Home Affairs during the validity period of the Select List.
4.5 The above procedure is being uniformly followed for all the States/Cadres in the matter of induction to the All India Services. "
11. Regarding the allegations against Shri T.K. Haridas, the respondent UPSC states that he was included in the select list of 2011 provisionally subject to clearance in the criminal case pending against him and grant of integrity certificate by the State Government. Though integrity certificate was issued by the Government subsequently the criminal proceedings continued to be pending against him. Respondent No. 9 was also included provisionally in the select list of 2011. Respondent No. 12 who was included provisionally in the select list of 2010 was subject to the clearance of criminal proceedings pending against him and grant of integrity certificate by the State Government. The UPSC further contends that there is no provision in the regulations for exclusion of the names of the officers 13 either from the zone of consideration or from the select list if they are otherwise eligible and are recommended for inclusion in the select list on the basis of assessment of their service records. Respondents Nos. 10 & 11 were included in the select list of 2011 and 2012 respectively. On the basis of the service records and information provided by the State Government they were assessed 'very good'. The preparation and forwarding of details of penalties, disciplinary/criminal proceedings falls within the domain of the State Government. As per the guidelines of the UPSC the notional dates for reckoning the date of eligible officers in the State Service for consideration for promotion to All India Service is to be taken as 31 st December of the vacancy year. Records of respondents Nos. 6, 8, 12 to 17 were available as on 31st December of the respective vacancy years and the selection committee considered their names in the meeting held on 21.12.2012 for select list of 2010-2011. The grading 'good' of respondents Nos. 7, 9 and 10 for the year 2010 by the selection committee was based on assessment of their ACRs of the preceding five years i.e. for the period 2006-2010. They were graded 'very good' for the year 2011 based on the assessment of their ACRs for the preceding years i.e. 2007-2011 which is different from the assessment period for the select list of 2010. Therefore, the assessment for the select list of 2010-2011 was based on exactly the same set of service records for the officers who are eligible for both the select list. As such, the overall assessment for one select list may not be the same for the next select list also. There is no provision in the regulations whereby vacancies can be reserved for provisionally recommended officers to be utilized for promotion of the officers due in the zone of consideration. Regulation 7(4) 14 only speaks about the validity of the period of 60 days of the select list so prepared. After the said period the unfilled vacancies shall be carried forward for the next year of the select list. It is for the Ministry of Home Affairs, Government of India to grant final appointment notifications.
12. Respondent No. 7 submitted that he has filed a reply statement in OA No. 1024/2013 and that he is adopting the same. In the pleadings in the aforesaid reply statement he states that his correct date of birth was 29.10.1957 but at the time of admission in the school his date of birth was mistakenly furnished as 25.3.1956 which remained unnoticed. When the Government issued a notification on 30.12.1991 vide Annexure R7(a) for applying for correction of date of birth the 7 th respondent who commenced training as Sub Inspector of Police on 1.6.1981 applied for correction of date of birth. He applied for such correction on 29.4.1992 well within the time so prescribed. He had also applied for correction of SSLC book and the same was corrected on 23.8.1995 which he had forwarded to the Government. The Government by order dated 17.4.1997 rejected his request vide Annexure R7(b). He made Annexure R7(c) representation dated 24.7.2006 to review/correct the order rejecting his application. As there was no reply he sent a reminder and thereafter he filed Writ Petition No. 2454/2006 before the Hon'ble High Court of Kerala. By Annexure R7(d) judgment dated 24.9.2009 the High Court directed the Government to consider his representation. Accordingly the Government reviewed Annexure R7(b) order rejecting his application for correction of date of birth vide Annexure R7(e) order. Annexure R7(e) order of the Government 15 correcting his date of birth in the service book as 29.10.1957 was challenged by applicant and others before the Kerala Administrative Tribunal. The Kerala Administrative Tribunal allowed the said application so filed against which the seniority of Dy. SPs as 1.9.2008 was approved by the Government vide Annexure R7(f) communication wherein the corrected date of birth of the respondent was shown. As early as in 2010 the applicant was aware of his date of birth. The State Police prepared a list of 46 officers for inclusion in the zone of consideration for appointment to IPS by Promotion in the year 2010 vide Annexure R7(g). Thereafter respondent No. 2 prepared a list of officers for consideration for inclusion in the zone of consideration for appointment to IPS by promotion for the year 2010 vide Annexure R7(b). The respondent No. 7 was at serial No. 10 in Annexure R7(h) list wherein the corrected date of birth was mentioned. Thereafter Annexure R7(i) list of 24 eligible officers for inclusion in the zone of consideration was prepared. From Annexures R7(f) and R7(i) the applicant was aware that the date of birth of respondent No. 7 was corrected in his service records. Respondent No. 7 herein challenged the order of Administrative Tribunal before the High Court of Kerala in OP (KAT) No. 173/2014 and OP (KAT) No. 174/2014. The OP (KAT)s are pending before the High Court of Kerala and stay also was granted by the High Court vide Annexures R7(j) and R7(k) orders. According to respondent No. 7 his selection is valid and there is no irregularity in his selection.
13. Respondent No. 8 filed reply statement contending that he was graded 'outstanding' by the State Police Department ten times and was also 16 graded as 'excellent' officer and 'very good' officer. His name was included in the select list provisionally because the integrity certificate to be issued by the State Government was withheld. When he moved this Tribunal with OA No. 24/2014 a direction was issued to the State Government to consider his case and grant integrity certificate as per the guidelines of DoP&T and accordingly he was granted integrity certificate. Despite granting integrity certificate he was included provisionally in the select list on the ground that a final report was filed by CBI in the case against him. The respondent No. 8 therefore filed OA No. 733/2013 before this Tribunal. According to respondent No. 8 superannuation from the State Police Service will not stand in the way of persons being considered in IPS by promotion. As respondent No. 1 in Annexure A2 has refused appointment to all individuals who were superannuated from Police Service, respondent No. 8 here had filed OA No. 840 of 2013 before this Tribunal wherein this Tribunal issued an interim order on 29.8.2013 that the expiry of the select list shall not stand in the way of the respondents appointment and the said OA is still pending consideration before this Tribunal.
14. OA-861-2013 - This is the 3rd round of litigation for the applicant. He was Superintendent of Police (Non-IPS cadre). He was included in the zone of consideration for the vacancies of IPS Kerala cadre for the years 2010- 2011. However, he was not included in the select list drawn up by the selection committee. His grievance is that respondents Nos. 6, 7, 15, 17, 19, 20, 21 and 25 are not eligible to be included in the select list on account of the various cases pending against them including criminal cases and 17 therefore on account of their inclusion in the select list and also in the zone of consideration his chances to be considered and included in the select list of 2011 was lost. According to him he had impeccable and exemplary service record with 'outstanding' and 'excellent' ratings in his confidential records; he is a recipient of Chief Minister's Police Medal in 1992 and President's Gold Medal in 2009. He has never been subjected to any disciplinary action or vigilance proceedings and not even a memo has been issued to him. He was rated as 'very good' by the selection committee. He would have been included in the final select list of 2011 and appointed to IPS but for the consideration and inclusion in the select list and appointment of the respondents Nos. 6, 7, 15, 17 in 2010 and inclusion of respondents Nos. 19, 20, 21 and 25 in the select list of 2011 and the subsequent appointment of respondents Nos. 7, 20 and 21 to the IPS. He states that the aforesaid officials are inferior in merit when compared to the applicant's impeccable record. Hence, he prays for setting aside the select list and directing the respondents 1 to 3 to carry out a selection afresh by excluding the tainted officers and to hold that applicant is entitled to be included in the select list for IPS against the vacancies of 2011.
15. This OA was resisted by the respondents. Union of India (respondent No. 1) filed a reply statement with the following contentions:
"5.2 ............the State Government being the sole custodian of service records of State Police Officers is required to furnish a proposal to convene a meeting of the Selection Committee/Review Committee, along with a list of eligible State Police Service Officers and their service records, integrity certificates etc. direct to the Union Public Service Commission for consideration of eligible State Police Service Officers for their inclusion in the select list for their subsequent appointment by promotion to the Indian Police Service. The commission scrutinizes the said proposal/records and fixes the meeting of the Selection Committee/Review Committee. The Central Government nominates its nominees 18 on the Selection Committee as and when the Commission fixes the meeting. The list prepared by the Selection Committee / Review Committee is finally approved by the Union Public Service Commission and forms the Select List. Finally and specifically in terms of the Regulation 9(1) of IPS (Appointment by Promotion) Regulations, 1955 as they stand applicable to present case, appointment to the IPS of such members of the State Police Service who are inlcuded unconditionally in the Select List approved by the UPSC is made by the Central Government on the recommendations of the State Government in the order in which their names appear in the Select List for the time being in force during the period when the select list remains in force. It may thus be observed that the part played by the Union of India in the process of preparation and finalization of the select list is very minimal."
16. Respondent No. 4 filed a reply statement contending that its role is limited to the forwarding of the list zone of consideration of the eligible officers for considering them in the selection committee meeting in accordance with the Regulations. According to the respondent No. 4 preparation of the final list is entirely with the Union Public Service Commission.
17. Respondents Nos. 2 & 3 the UPSC filed reply statement contending that the applicant was considered by the selection committee for inclusion in the select list of 2011 and he was assessed by the selection committee as 'very good' for the year 2011. The State Government vide letter dated 31.5.2013 conveyed their approval for the select list of 2010 and 2011. Ministry of Home Affairs vide letter dated 12.6.2013 clarified that the unfilled vacancies shall be carried forward for the next year of select list.
18. The respondents Nos. 7, 15, 20, 21 and 25 filed reply statement refuting the allegations made against them. According to respondent No. 7 one of the criminal cases against him was quashed by the High Court and in the other criminal case he was acquitted by the Trial Court. He has produced 19 copies of the judgments in those criminal cases. Respondent No. 15 in his reply statement submitted that the criminal case against him ended up in acquittal and he was not facing any criminal case thereafter. Respondent No. 20 states that the disciplinary proceedings against him was set aside on appeal. In the reply statement filed by respondent No. 21 it is stated that he is adopting the pleadings in OA No. 1024 of 2013 filed by him before this Tribunal as his comments in this case also in relation to the disputes regarding his date of birth (supra). Respondent No. 25 states that there was no charge framed by any court against him though a charge report has been filed by CBI against him in the court in a criminal case. Explaining the details of the criminal case so charge sheeted against him he states that the Special Court, CBI, Trivandrum is yet to frame charges in that case.
19. OA No. 812/2014 - Applicant in OA No. 953/2013 is the applicant in this OA also. His grievance in this OA is that despite the pendency of several OAs challenging the 2011 select list of Kerala cadre of Indian Police Service the respondents have carried forward the vacancies of 2010 and 2011 for appointment for the year 2012. According to him as per Annexure A3 notification [Annexure R4(a) in OA No. 953/2013] there were 13 candidates in the select list prepared by the selection committee for the vacancy year 2010 and 8 candidates for the vacancy year 2011 but vide Annexure A4 final select list only 6 officers of Kerala Police Service each have been included in the select lists of 2010 and 2011. Thereafter the Government of Kerala vide Annexure A5 notification dated 30.10.2013 appointed 12 officers of Kerala Police Service in the select list of 2010 and 20 of the 6 from the select list of 2011 except one officer from Annexure A3 select list of 2010 and two officers from Annexure A3 select list of 2011. The applicant states that the resultant three vacancies wherein the Government of India has not given appointment to the officers of Kerala Police Service from the list of 2010 and 2011 ought to have been filled up with the remaining candidates included in Annexure A2 select list for the year 2011 wherein the applicant had been graded as 'very good' by the select committee. He further states that vide Annexure A6 order the aforesaid 3 posts were carried forward to the vacancies of 2012 during the pendency of the different OAs including like 1193/2013, 733/2013, 745/2013, 776/2013, 861/2013, 953/2013, 1023/2013 and 1024/2013. The applicant prays for relief as under:
"i) Call for the records relating to Annexure A1 letter and set aside the same to the extent it carry forward the vacancies of 2010 and 2011 in the Kerala Cadre of the Indian Police Service for appointment from the Select List of the year 2012.
ii) Declare that the decision of the 1 st respondent in Annexure A1 letter to carry forward the vacancies of 2010 and 2011 in the Kerala Cadre of the Indian Police Service for appointment from the Select List of the year 2012 is arbitrary, illegal and unsustainable in law.
iii) Issue an order directing the respondents to consider the applicant for appointment to the Kerala Cadre of the Indian Police Service in any one the unfilled vacancies of the year 2011.
iv) Such other appropriate direction or order as this Honourable Tribunal may deem fit and proper in the interest of justice. "
20. Respondent No. 1 filed reply statement on the same lines as pleaded in OA No. 953/2013. It is further contended by respondent No. 1 thatas per Regulation 7(4) the time period of the year wise select list of the years 2010-2011 had expired after 60 days from 5.7.2013 i.e. the date of approval, and as there was no stay from the court. 10 vacancies were 21 determined for the select list of 2012 including the three carried forward vacancies i.e. one from 2010 and two from 2011. The vacancies were later reduced to 9 after appointment of Shri D. Madhu on 30.11.2012 in pursuance of the order dated 3.7.2013 in OA No. 342 of 2013. It is further contended by respondent No. 1 that applicant was quite below in the list of zone of consideration and the addition of one or two even three vacancies would not have rendered him appointment in the select list of 2011.
21. Respondent No. 4 filed reply statement contending that the respondent No. 1 carried forward the unfilled vacancies of 2010-2011 to 2012 vide Annexure A1 letter on the basis of the existing rules and Regulations and not on the basis of the proposal from the State Government. The State Government has no role in carrying forward of the unfilled vacancies.
22. No pleadings came forth from other respondents.
23. We have heard the following counsel appearing for the parites and perused the record.
i) Mr. Amal Kasha representing Mr. C.P. Sudhakara Prasad, Sr. and Mr. Hood T.B. appearing for the applicants in OAs Nos. 953 of 2013 & OA No. 812 of 2014.
ii) Mr. P. Ramakrishnan appearing for the applicant in OA No. 861 of 2013.22
iii) Mr. P.R. Sreejith, ACGSC appearing for R1 in OA No. 953 of 2013, Mr. Thomas Mathew Nellimoottil [(appearing for R2&3 in OA No. 953 of 2013, 861 of 2013 and 180/812/2014), Mr. M. Rajeev, GP (appearing for R4&5 in OA No. 953 of 2013, 861 of 2013 and 180/812/2014), Dr. K.P. Satheesan, Sr. Mr. P. Mohandas & Mr. M.R. Jayaprasad (appearing for R6, 13 & 15 to 17 in OA No. 953 of 2013 and R17 in 861 of 2013), Mr. S. Sreekumar, Sr. Mr. Saju Wahab (R7 in OA No. 953 of 2013 and R21 in 861 of 2013), Mr. M.R. Hariraj (R8 in OA No. 953 of 2013 and R25 in 861 of 2013), Mr. R. Sreeraj (R9 in OA No. 953 of 2013 and R19 in 861 of 2013) and Mr. K. Nirmalan (R10 & 11 in OA No. 953 of 2013 and R7, 8, 10, 11, 13, 16, 20, 22, 23, 24, & 26 in 861 of 2013), Mr. N. Anil Ravi, ACGSC (R1 in OA No. 861 of 2013), M/s. Elvin Peter P.J & Mr. T.G. Sunil (R15 in OA No. 861 of 2013) and Mr. Sinu G. Nath, ACGSC (R1 in OA No. 180/812/2014).
24. Inclusion of tainted officers in the select list and thereby deprival of the chances of the applicant to be considered for selection by the selection committee is the quintessence of the pleadings in all the OAs. Alleging that certain officers who have been included in the zone of consideration and also in the select list are unqualified and are unbefitting even for their consideration for selection to the IPS by promotion is the gravamen of the the applicants' case. Even though the State Government and the party respondents who responded disputed this aspect, the short point to be considered by this Tribunal is whether this Tribunal is justified in undertaking judicial review of the decision taken by the selection committee 23 constituted under the Regulations or not.
25. The procedure followed by the selection committee has been narrated in the pleadings in OA No. 953/2013 (supra). The officers of the Kerala Police Service included in the list of zone of consideration sent by the State Government were considered by the selection committee and were assigned different gradaings like 'outstanding', 'very good', 'good', 'unfit', etc. The UPSC in their reply statement clearly states that such grading and the process of inclusion in the select list were done based on the overall assessment of the service records and not based on any particular blot in the service record of the candidates included in the zone of consideration. The final select list is made after getting further remarks from the State Government and the appointments are issued to the officials by the Central Government when the select list is finally approved by the UPSC.
26. Assigning of different grades to the candidates in the zone of consideration and classifying them as 'outstanding', 'very good', 'good' and 'unfit' was under challenge in UPSC v. K. Rajaiah & Ors. - (2005) 10 SCC
15. The apex court in that case held that taking an overall view and having due regard to the limitations inherent in judicial review of selection process by an expert body, the decision taken by the UPSC need not be nullified. A similar view was taken by the apex court in Anil Kariyar (Mrs.) v. Union of India & Ors. - (1997) 1 SCC 280 wherein the challenge was the grading given by the DPC conducted by the UPSC. The apex court in that case 24 observed:
"5. The question is whether the action of the DPC in grading the appellant as "very good" can be held to be arbitrary. Shri G.L.Sanghi, the learned senior counsel appearing for the Union Public Service Commission, has placed before us the confidential procedure followed by the DPCs in the Union Public Service Commission for giving overall gradings, including that of "outstanding", to an officer. Having regard to the said confidential procedure which is followed by the Union Public Service Commission, we are unable to hold that the decision of the DPC in grading the appellant as "very good" instead of "outstanding" can be said to be arbitrary................"
27. In the light of the above rulings of the apex court we are of the view that awarding different grades and considering whether to include an officer in the select list for promotion to the post of IPS or not are within the exclusive domain of the selection committee of the UPSC. The selection committee need not record its reason for assigning different grading also. The minutes of the selection committee reveal that the Committee consists of high ranking officials like Chairman / Member of the UPSC, State Chief Secretary, Home Secretary, Officials from the Central Home Ministry, high ranking poice officials from other States/departments. The procedure followed by the Committe, as explained in their pleadings (supra),reveal that the committee arrives at their decision to assign different gradings based on the overall service records, not based on any particular departmental/ criminal proceedings during any of the five year period of service under consideration. In the event of the continued pendancy of such proceedings the UPSC include such officials in the select list as 'provisional' and asks the State Government to furnish integrity certificate unconditionally within the validity period of the select list. If the proceedings are still continuing or no unconditional integrity certificate is furnished by the State government, appointmet will not be given to such candidate. The aforementioned 25 procedure involves repeated consultations with State and Central Governments regarding the suitability of the candidate. As per Regulation 9 the Central government is free not to appoint a person in the select list if something adverse comes to its notice. Regulation 9(a) of the Regulations read as follows:
"9(a) Powers of the Central Government not to appoint in certain cases:-
Notwithstanding anything contained in these regulations [deleted] the Central Government may not appoint any person whose name appears in the Select List, if it is of the opinion that it is necessary or expedient so to do in the public interest:
Provided that no such decision shall be taken by the Central Government without consulting the Union Public Service Commission. "
As the selection procedure is based on the Regulations which has statutory status, we find no merit in the contentions of the applicant in OA No. 953 of 2013 and the same is only to be dismissed. We order accordingly.
28. The grievance of the applicant in OA No. 812 of 2014 is that the carrying forward of the unfilled vacancies of 2010 and 2011 to the vacancies of 2012 is unlawful in view of the interim order passed in OA No. 1193 of 2013 by this Tribunal and during the pendency of the several other OAs like OAs Nos. 1193/2013, 733/2013, 745/2013, 776/2013, 861/2013, 953/2013, 1023/2013 and 1024/2013. The impugned order Annexure R1 in OA No. 812 of 2014 was issued by the Ministry of Home Affairs on 14.11.2013. According to the Ministry of Home Affairs, Government of India (respondent No. 1 in OA No. 812 of 2014) the unfilled vacancies were carried forward as there was no order of stay by the court or Tribunal. The applicant has produced a copy of the interim order dated 17.3.2014 issued by this Tribunal in OA No. 1193 of 2013 wherein this Tribunal has passed 26 an interim order making it clear that any promotion made to the IPS against the quota earmarked for 2011 shall be subject to the outcome of the aforesaid OA. It is worth noticing that the aforesaid OA was disposed of as closed as the case of the applicant therein has to be considered on the basis of the detailed pleadings in OA No. 861 of 2013 filed by the same applicant. OA No. 1193 of 2013 was closed on 16.2.2017. Therefore, it can be seen that the aforesaid interim order is no longer in force. According to the State Government, the decision to carry forward the three vacancies of 2010- 2011 was taken by respondent No. 1.
29. After hearing the parties we are of the view that the appointment to the Indian Police Service on promotion is within the power of the Central Government, exercised by the Ministry of Home Affairs. It is within their power to decide as to how many vacancies are to be filled up and as to how to treat the unfilled vacancies of the previous year.
30. Since the appointment of a member of the State Police Service to IPS is within the power of the Central Government, we are of the view that the Central Goverment has every right to carry forward the unfilled vacancies. Hence, we find no merit in these OAs as well i.e. 861/13 and 180/812/2014 and they are dismissed. Parties shall suffer their own costs. 27
31. It is made clear that we pass this common order subject to the outcome of the SLP (Civil) Nos. 7494 & 7495 of 2014 and 2249 & 2250 of 2015 pending before the Hon'ble Apex Court.
(P. GOPINATH) (U. SARATHCHANDRAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA"
28
Original Application No. 953 of 2013
APPLICANT'S ANNEXURES
Annexure A1 - True copy of the notification No. 1-14011/11/2012
IPS.I(I) dated 6.8.2013, issued by the Ministry of Home Affairs, Government of India.
Annexure A2 - True copy of the notification No. 1-14011/11/2012 IPS.I(II) dated 6.8.2013, issued by the Ministry of Home Affairs, Government of India.
Annexure A3 - True copy of the list of State Police Service officers eligible for consideration for promotion to IPS for the year 2010 forwarded by the State Government to the UPSC.
Annexure A4 - True copy of the list of State Police Service officers eligible for consideration for promotion to IPS for the year 2011 forwarded by the State Government to the UPSC.
Annexure A5 - True copy of the letter dated 16.1.2013 sent by the Chief Secretary to the Chairman of the Selection Committee communicating the observations of the State Government on the recommendations of the IPS Selection Committee. Annexure A6 - True copy of the final seniority list of Deputy Superintendents of Police in Kerala Police Service published in April, 2010.
Annexure A7 - True copy of the GO (Rt) No. 2672/2010/Home dated 27.8.2010.
Annexure A8 - True copy of the reply dated 1.1.2013 given under the Right to Information Act.
Annexure A9 - True copy of GO (Rt.) No. 2649/2012/Home dated 6.9.2012.
Annexure A10 - True copy of the UO Note dated 2.7.2012 sent by the Home Department, Government of Kerala to the General Administration Department.
RESPONDENTS' ANNEXURES Annexure R4(a)- True copy of the notification No. 1-14011/11/2012- IPS.I(I), dated 6.8.2013 of the MHA.
29Annexure R4(b)- True copy of the notification No. 1-14011/11/2012- IPS.I(II), dated 6.8.2013 of the MHA.
Annexure R4(c)- True copy of the notification No. 1-14013/86/2013-IPS.I, dated 30.10.2013 of the MHA.
Original Application No. 861 of 2013 APPLICANT'S ANNEXURES Annexure A1 - True copy of the letter dated 26.8.2011 of the 5th respondent.
Annexure A2 - True copy of the guidelines/procedure formulated by the 2nd respondent.
Annexure A3 - True copy of the order dated 17.8.2012 in OA No. 240/2012.
Annexure A4 - True copy of the list of officials considered for promotion by the select committee at its meeting held on 21.12.2012.
Annexure A5 - True copy of the notification dated 6.8.2013 notifying the select list for the years 2010 and 2011.
Annexure A6 - True copy of the notification dated 6.8.2013 as per which 6 officers each from the select list of 2010 and 2011 are appointed to the Indian Police Service with immediate effect.
RESPONDENTS' ANNEXURES Annexure R4(a)- True copy of the notification No. 1-14011/11/2012- IPS.I(I), dated 6.8.2013 of the MHA.
Annexure R4(b)- True copy of the notification No. 1-14011/11/2012- IPS.I(II), dated 6.8.2013 of the MHA.
Annexure R4(c)- True copy of the notification No. 1-14013/86/2013-IPS.I, dated 30.10.2013 of the MHA.
Annexure R4(d)- True copy of the letter of State Government dated 7.10.2013.
Annexure R7(a)- True copy of the order in seniority list. 30 Annexure R7(b)- True copy of the seniority list.
Annexure R7(c)- True copy of the order in Crl. M.C. No. 1839/2004. Annexure R7(d)- True copy of the order in C.C. No. 433/2002. Annexure R15(a)-True copy of the judgment dated 28.7.2012 in calendar case No. 606/2004 of the Judicial First Class Magistrate- I, Kasaragod.
Annexure R20(a)-True copy of the order in seniority list. Annexure R20(b)-True copy of the seniroity list.
Annexure R21(a)-True copy of the notification dated 30.12.1991. Annexure R21(b)-True copy of the order dated 17.4.1997. Annexure R21(c)-True copy of the representation for review/correct the order dated 24.7.2006.
Annexure R21(d)-True copy of the judgment in WP(C) No. 25406 of 2009 dated 14.9.2009.
Annexure R21(e)-True copy of the order dated 19.8.2010. Annexure R21(f)-True copy of the covering letter dated 7.10.2010. Annexure R21(g)-True copy of the list of 46 officers in the rank of Superintendent of Police (Non-IPS) for appointment to IPS by promotion for the year 2010.
Annexure R21(h)-True copy of the list of officers for consideration for appointment to IPS by promotion for the year 2010 prepared by 2nd respondent.
Annexure R21(i)-True copy of the list of 24 officers in the rank of Superintendent of Police (Non-IPS) for appointment to IPS by promotion for the year 2011.
Annexure R21(j)-True copy of the stay order dated 9.5.2014 in OP (KAT) 173/2014 (Z).
Annexure R21(k)-True copy of the stay order dated 9.5.2014 in OP (KAT) 174/2014 (Z).
31Original Application No. 180/00812/2014 APPLICANT'S ANNEXURES Annexure A1 - True copy of the letter No. 1-14011/30/2013 IPS.I dated 14.11.2013 issued by the Ministry of Home Affairs, Government of India.
Annexure A2 - True copy of the minutes of the IPS Selection Committee meeting held on 21.12.2012.
Annexure A3 - True copy of the notification dated 6.8.2013 No. 1- 14011/11/11/2012-IPS.I(I) issued by the Government of India publishing the Select List.
Annexure A4 - True copy of the notification dated 6.8.2013 No. 1- 14011/11/2012-IPS.I(II) issued by the Government of India appointing 12 members of the Kerala Police Service to the Indian Police Service.
Annexure A5 - True copy of the notification dated 30.10.2013 issued by the Government of India appointing members of the Kerala Police Service to the Indian Police Service. Annexure A6 - True copy of the order dated 14.10.2013 passed by this Hon'ble Tribunal in OA No. 953/2013.
RESPONDENTS' ANNEXURES Annexure R4(a)- True copy of the zone of consideration of the year 2011 forwarded to UPSC.
Annexure R4(b)- True copy of the notification No. 1-14011/11/2012- IPS.I(II), dated 6.8.2013 of the MHA.
Annexure R4(c)- True copy of the notification No. 1-14013/86/2013-IPS.I, dated 30.10.2013 of the MHA.
Annexure R4(d)- True copy of the GO(Rt) No. 2621/10/Home dated 19.8.2010.
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