Central Administrative Tribunal - Delhi
Basant Kumar Das vs M/O Personnel,Public Grievances And ... on 3 August, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No-3415/2014
Order Reserved on: 05.02.2016
Order Pronounced on: 03.08.2016
Hon'ble Mr. Sudhir Kumar, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
Basant Kumar Das,
S/o Late Jag Mohan Das, Aged 45 years
Presently Posted as Joint Secretary,
Good, Public Distribution and
Consumer Affairs Department,
IVth Floor, Project Building, HEC,
Dhurwa, Ranchi-8344004,
Jharkhand. -Applicant
(By Advocate: Shri Amit Pawan)
Versus
1. Union of India,
Through the Secretary,
Department of Personnel & Training,
North Block, New Delhi.
2. The Union Public Service Commission
Through its Secretary,
Dholpur House, Shahjahan Road,
New Delhi.
3. The State of Jharkhand
Through its Chief Secretary,
Project Bhawan, Dhurwa,
Ranchi, Jharkhand. -Respondents
(By Advocate: Shri Rajinder Nischal with
Mr. Ashish Nischal for R-1
Mr. Amit Yadav for Mr. Ravinder Aggarwal-UPSC
Mr. Devashish Bharuka R-3)
ORDER
Per Sudhir Kumar, Member (A):
The applicant of this case approached this Tribunal by filing the present OA on 17.09.2014, challenging the recommendations of the 2 OA No-3415/2014 Selection Committee comprised under Regulation 5 of the Indian Administrative Service (IAS, in short) (Appointment by Promotion) Regulations, 1955 for consideration of cases of State Civil Services (SCS, in short) Officers belonging to the State of Jharkhand, for preparation of Select Lists for the years 2010 and 2011, for appointment to the IAS Jharkhand Cadre by promotion, since in its meeting held on 06.11.2013, the Selection Committee had not found him fit for such appointment by promotion, and, according to him, his juniors had been so recommended, though their service records were inferior to his, and, in that process overlooking his unblemished service career.
2. The case came to be listed for admission before a Coordinate Bench on 24.09.2014, when notices were ordered to be issued, and were accepted in the Court itself by the Standing Counsel for R-1 & R-2, and the counsel for the applicant had undertaken to serve the notice upon the Standing Counsel for respondent R-3. On the very next date of hearing on 10.10.2014, this case came to be clubbed for some time with another OA No. 4207/2013 Dharmendra Pandey vs. Union of India & Ors., which case was incidentally disposed of earlier, through an oral order dated 06.02.2015, one year prior to arguments being heard and the order being reserved in this case. From that date 06.02.2015 itself, this OA came to be listed separately from time to time. On 11.05.2015, during the course of hearing of this OA, a Coordinate Bench passed the following order as per daily order sheet:-
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OA No-3415/2014 "When the matter was taken up for further arguments, a preliminary objection is raised by Shri Ravinder Aggarwal, learned counsel for respondent no.2 regarding non-joinder of necessary parties. He submitted that the principal relief sought in the OA is to quash the recommendation of the Screening Committee in its meetings dated 06.11.2013 and 23.05. 2014 for appointment by promotion of States Civil Service officials to the Indian Administrative Service for the year 2010-11 in the State of Jharkhand, with all consequential benefits. It was submitted that the officials have already been notified and appointed as IAS officers in the State of Jharkhand. Shri Aggarwal submitted that the interest of these State Civil Service Officials who have been so appointed stands to be affected in case the relief is to be granted as prayed for by the applicant. Hence, they need to be impleaded as necessary parties and be heard before any decision is taken in this Application.
The learned counsel appearing for the applicant prays for two days' time to move an application seeking impleadment of such affected persons. However, since the applicant is not aware about their present places of postings, the learned counsel appearing for the State undertakes to provide their present addresses.
Let notices be served through the State of Jharkhand, respondent No.3, upon such persons who are to be impleaded in this proceeding.
List on 18.05.2015."
(Emphasis supplied).
3. However, thereafter, somehow the applicant took any action to file an impleadment application, to implead any such persons who had already been notified and appointed as promoted IAS Officers in the State of Jharkhand, and the liberty granted by the Bench on 11.05.2015 for him to implead such promoted persons, and for notices to be served upon them through the State of Jharkhand was wasted by the applicant, to his peril.
4. Counter reply of Respondent No.2-UPSC had in the meanwhile been filed in this case already, on 10.10.2014, and counter affidavit of Respondent No.3 State of Jharkhand had also been filed on 11.12.2014. 4
OA No-3415/2014 Thereafter, on 21.01.2015, an Additional Affidavit had been filed on behalf of the applicant of the then linked OA No. 4207/2013, making some averments, and producing some records obtained under the RTI etc., which OA itself had been disposed of later on 06.02.2015. Another Supplementary Affidavit had been filed by the applicant on 14.08.2015, submitting that his case was not only linked to the case in OA No.4207/2013 Dharmendra Pandey (supra), in which oral orders had already been passed on 06.02.2015, but that it was also connected to another case, in OA No. 1957/2015 Bhawani Prasad Lal Das vs. Union of India & Ors., which also had been disposed of by then by another Coordinate Bench of this Tribunal through an oral order on 29.07.2015, copies of which filed along with the Additional Affidavit. But, he still did not provide any explanation as to why he had failed to avail of the liberty to implead as private respondents those officers who had already been notified and appointed as promoted IAS Officers in the State of Jharkhand, which liberty had been granted to him on 11.05.2015, three months' earlier, before the Supplementary Affidavit was filed on 14.08.2015.
5. In the conspectus of the above circumstances, though when the case was heard by us, the arguments of both sides had been advanced quite in detail before us when the orders were reserved in this case, the lis before us for being decided is quite limited. Since the preliminary objection raised by the counsel for R-2 UPSC had already been upheld by a Coordinate Bench on 11.05.2015, the observations made by the Bench 5 OA No-3415/2014 that day for non-joinder of necessary parties would also operate against the applicant.
6. The facts of the case can be stated briefly here. The applicant is aggrieved that the Selection Committee for SCS Officers belonging to the State of Jharkhand held for recommending their cases for Appointment by Promotion to the IAS had at its meeting held on 06.11.2013 considered the cases of a total 77 persons in respect of two select years, and the name of the applicant appeared at Sl. No.15 in the list of 90 Officers prepared for the Select List Year 2010, and at Sl. No.7 in the list of 09 Officers prepared for the Select List Year 2011, which was put up before that Committee. The Integrity Certificate had been issued by the State Government through Annexure A-7 dated 22.07.2013, through which the integrity had been certified by the State Government only in respect of 77 Officers out of 90 Officers under consideration for the Select List Years 2010 & 2011.
7. The applicant has alleged that when the names of the 30 candidates finally recommended for appointment to the IAS by promotion from amongst SCS Officers to IAS Jharkhand cadre were reported in Newspapers of 23/24.11.2013, he was shocked not to find his name in the Select List Year 2010, while at least six officers, who had been found fit for appointment by the Committee were such against whom criminal cases/enquiries/proceedings were pending. The applicant had alleged that the Selection Committee has erred in considering the ACRs of only the previous five years, and for saying so he had sought shelter behind 6 OA No-3415/2014 the order dated 03.11.2004 of the Cuttack Bench of this Tribunal in the case- Aswini Kumar Das vs. Union of India & Ors. reported in 2005(2) SLJ 219 CAT, reproduced by him at Annexure A-11. He had named these six officers in Paragraphs 4(t) and 4 (v) in his OA, though he later did not avail of an opportunity granted to him by this Tribunal on 11.05.2015 to implead them as necessary parties in this OA. The applicant had represented to Secretary, UPSC, Secretary DoP&T, New Delhi and Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Jharkhand, Ranchi through Annexure A-12 dated 26.11.2013 against the alleged discrimination meted out to him but received no response.
8. The applicant is aggrieved that when his Junior Officers had been considered, and out of total 32 names included in the Select List, 20 Officers were junior to him, therefore, his right for his to be considered properly had been denied to him. Even though the applicant's own representation did not elicit any response, but a meeting of the Selection Committee held on 23.05.2014 to review its recommendations with regard to two candidates was convened, as per Annexure A-16, but since he again missed being selected, he again represented in this regard on 07.08.2014 before filing this OA on 17.09.2014. By that time, orders dated 21.08.2014 had been passed by this Tribunal in the aforesaid OA No.4207/2013, through Daily Order Sheet produced at Annexure A-18, through which UPSC had been directed to furnish the particulars of some officers from among the selected candidates. 7
OA No-3415/2014
9. In filing the present OA, the applicant has taken the ground that the Selection Committee had acted illegally by considering the ACRs of the SCS Officers concerned only in respect of last five years, while the concerned IAS (Appointment by Promotion) Regulations required that their entire service records have to be considered, as had been held by the Cuttack Bench also in Aswini Kumar Das (supra). He has further alleged that the Selection Committee had wrongly given the gradings, alleging that a person who was having "Outstanding/Excellent or Good"
gradings over a number of years cannot merely be declared as "Good"
while assessing his overall performance in his service career. He has further taken the ground that gross injustice had been meted out to him in this case, and he has not been considered, though he was eligible for the vacancies of both the Select Years 2010 and 2011, while 21 persons junior to him have been appointed.
10. The applicant has further taken the ground that the names sent by the State Government were in the order of seniority, in which his name was placed at Sl. No.13 out of the list of 77 Officers in respect of whom Integrity Certificate had been issued, and since there were 33 IAS vacancies over those two years, his case for promotion to IAS could not have been overlooked, without any legal or valid basis, and that the respondents have refused to address his grievances, despite his repeated representations. In the result, he had prayed for the following Reliefs and Interim Relief: -
RELIEFS:-8
OA No-3415/2014 "(a) ISSUE NOTICE the Respondents calling upon them to produce all the relevant rules, regulations, etc. as also the entire record with respect to the matter of appointment by promotion to the IAS for the vacancies of the years 2010 and 2011 in the State of Jharkhand;
(b) QUASH the recommendations of the Committee constituted under the Regulations made in its meeting held on 06.11.2013 and 23.05.2014 with regard to the matter of appointment by promotion to the IAS for the vacancies of the years 2010 and 2011 in the State of Jharkhand and all consequential steps taken by the respondents;
(c) DIRECT the respondents to take steps leading to preparation of a fresh list in the matter of appointment by promotion to the IAS for the vacancies of the years 2010 and 2011 in the State of Jharkhand;
(d) PASS such other order or orders as may be deemed fit and proper in the facts and circumstances of the case."
INTERIM RELIEF:-
"(a) RESTRAIN the respondents from proceeding further with the process of making appointment to the IAS for the vacancies of the years 2010 and 2011 in the State of Jharkhand, pending final adjudication of this Original Application."
11. This Interim Relief as prayed for by the applicant had never been granted to him during the course of hearings of his case.
12. In the written statement dated 10.10.2014 filed by Respondent No.2-UPSC, the entire procedure regarding the process adopted under IAS (Appointment by Promotion) Regulations, 1955 had been explained, which is being uniformally followed for all States/Cadres in the matter of induction of SCS Officers to the All India Services of the States concerned.
13. In regard to the facts of the instant case, it was submitted that the Selection Committee had considered the case of the applicant for both the Select List Years 2010 and 2011, and had assessed him to be 'Good' 9 OA No-3415/2014 for both the Select Year Lists, and on the basis of this assessment, his name could not be included in the Select Lists of 2010 or 2011 due to availability of officers with better grading, and the statutory limit on the size of the Select List for the two years. It was further submitted that the Government of Jharkhand had intimated the name of a particular officer against whom Charge Sheet had been filed, and the State Government had withheld his Integrity Certificate subsequent to the Selection Committee Meeting held on 06.11.2013. In respect of another Officer, the Hon'ble High Court of Jharkhand at Ranchi had in its order dated 16/10/01/2014 in WP(S) No. 2863/2012 quashed the State Government's order dated 17.04.2012 regarding imposition of penalty, and had remitted the matter back for a fresh decision by the State Government. The State Government had, however, started the departmental proceedings against the said officer once again. The Selection Committee had, therefore, to be reconvened on 23.05.2014, to re-consider the cases of these two officers, as there were changes in their service records, which had been placed before the Selection Committee Meeting earlier held on 06.11.2013.
14. It was submitted that the matter relating to the procedure followed by the Selection Committee had been considered by the Hon'ble Apex Court in a number of cases e.g. (i) Nutan Arvind (Smt.) vs. Union of India & Others= (1996) 2 SCC 488, (ii) UPSC vs. H.L. Dev and Others= AIR 1988 SC 1069, (iii) Dalpat Abasaheb Solanke vs. B.S. Mahajan= AIR 1990 SC 434, (iv) Smt. Anil Katiyar vs. Union of India & Others= 1997 (1) SLR 153, and (v) UPSC vs. K. Rajaiah and others= (2005) 10 10 OA No-3415/2014 SCC 15, wherein the Hon'ble Supreme Court had upheld the procedure adopted by the Selection Committee, and the jurisdiction vested in it to make the selection. It was further pointed out that the orders passed by Cuttack Bench of this Tribunal dated 03.11.2004 in OA No. 1255/2003 had been carried before the Hon'ble High Court of Odisha in Writ Petition No. 4570/2005, and while disposing of the said Writ Petition, along with other Writ Petitions, Hon'ble High Court had, through a common order dated 10.01.2006, modified the order of Cuttack Bench of this Tribunal, which modified order had been duly followed and implemented.
15. It was further submitted that in the case of Nutan Arvind (supra), the Hon'ble Apex Court has held that the Court cannot sit in judgment over the assessments made by such a high level Selection Committee, constituted for considering the respective merits of the candidates, for assessment and for awarding gradings to consider their cases for promotions. It was submitted that the Selection Committee which first met on 06.11.2013, and had then to be reconvened to consider the cases of two officers on 23.05.2014, had strictly considered all the eligible officers, and had included the names of the officers recommended out of them strictly in accordance with the Promotion Regulations. It was further submitted that the Selection Committee has to act according to the Promotion Regulations while preparing the Select List, and that the importance of seniority and merit cannot override each other. Hence it was prayed that the OA is without any merit, and appropriate orders may be passed.
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OA No-3415/2014
16. In the counter reply of R-3 State of Jharkhand also the same details had been repeated. It was further submitted that except two officers whose Integrity Certificate had been withheld, the other four officers mentioned by the applicant in his OA are not covered by the Hon'ble Apex Court judgment in Union of India etc. vs. K.V. Jankiraman, (1991) 4 SCC 109, and the State Government's Resolution No. 6227 dated 20.11.2008, both of which were produced as Annexure R-3/1 and Annexure R-3/2. It was pointed out that the DPC convened by a State, and the Selection Committee of the UPSC under the Promotion Regulations are two different Committees, which have different yardsticks and norms, and, therefore, assessments with regard to routine promotions by DPC, and promotions by selection under the IAS (Appointment by Promotion) Regulations, 1955 are not necessarily the same. It was, therefore, prayed that there is no merit in the OA, and it may be dismissed with costs.
17. Through his Additional Affidavit dated 21.01.2015, the applicant had brought on record a reply dated 24.02.2014 to his RTI application, provided to him by Respondent No.2 UPSC, and also the representation subsequently given by him on 10.03.2014 praying for re-assessment of ACRs of the officers considered for Select List Year 2010. Two days later he had forwarded another representation dated 12.03.2014, a copy of which had also been filed. Another reply to another RTI application furnished by Respondent No.3 UPSC through letter dated 07.11.2014 had also been submitted by the applicant.
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OA No-3415/2014
18. As already mentioned earlier, the Supplementary Affidavit filed by the applicant, three months after his having failed to avail of the opportunity to implead the selected persons as private respondents, had enclosed only copies of the orders passed in two connected OAs, OA No. 4207/2013 dated 06.02.2015, and OA No.1957/2015 dated 29.05.2015, both of which had also been disposed of by Coordinate Benches of this Tribunal without any private respondents having been impleaded in those OAs.
19. Heard. Learned counsel for Respondent No.2 UPSC had repeated his preliminary objection regarding non-joinder of necessary parties as respondents, and had also advanced his arguments on the lines of their counter reply, as already discussed above, and had justified the procedure as followed by the Selection Committee, and had prayed for the OA to be dismissed both on the ground of non-joinder of necessary parties, as well as on merits also. Subsequent to final hearing, learned counsel for Respondent No.2 also submitted his written arguments, which may be adverted to here. In support of the preliminary objection, it was submitted that it was necessary for the applicant to have impleaded the officers who would be adversely affected if the recommendations were to be quashed, and in saying so, reliance had been placed on the judgments in the cases of (i) Bhagwanti & Ors. vs. Subordinate Services Selection Board, Haryana and Another 1995 Supp (2) SCC 663, and (ii) Ishwar Singh vs. Kuldeep Singh & Ors. 1995 Supp. (1) SCC 179, copies of which judgments had been enclosed. In regard to merits, the contentions already made out in the counter 13 OA No-3415/2014 reply were repeated, and Paragraphs 19 & 34 of the Orissa High Court judgment in the case of Sh. Krishna Chandra Mohapatra & Ors. and Jagdish Prasad Agrawalla vs. Union of India & Ors. with UPSC and Anr. vs. Aswini Kumar Das & Ors. 101 (2006)CLT201, 2006(I)OLR223 (Annexure-C) had been relied upon, in which in Para-34, the Hon'ble High Court had upheld that scrutinizing the service records of the officers for preceding five years to grade them for the purpose of the appointments to be made by selection basis was fair and reasonable. It was submitted that this same process of recruitment of looking into the service records of past five years has also been upheld by the Hon'ble Delhi High Court in its judgment in Baljeet Singh vs. Union of India & Ors. 2007 (98) DRJ 356, and in particular paragraphs-3, 11 to 15 & 17 of that judgment were relied upon. It was further submitted that the competence of the Selection Committee to make relative assessment of merit, and stating that the scope of judicial review in such matters is very limited, had been upheld by the Hon'ble Apex Court in (i) UPSC vs. K. Rajaiah and Others (supra), (ii) UPSC vs. L.P. Tiwari & Others (supra), and (iii) Nutan Arvind (Smt.) vs. Union of India & Another (supra).
20. We have given our anxious consideration to the facts of this case. Respondent No.2 UPSC is right in pointing out that when a preliminary objection was taken regarding the applicant not having named private respondents, and that preliminary objection had been upheld by the Bench on 11.05.2015, by passing the order (supra), and the applicant had thereafter failed to avail of an opportunity to implead any of such 14 OA No-3415/2014 likely to be affected persons as private party respondents, and to serve notice on them through the State of Jharkhand, and to even file any amended Memo of Parties for the purpose of issuance of notices to such to be named persons, as permitted on 11.05.2015, the OA is liable to be rejected on the ground of non-joinder of necessary parties itself as per the law laid down by the Hon'ble Apex Court in (i) Bhagwanti & Ors. vs. Subordinate Services Selection Board, Haryana and another (supra), and (ii) Ishwar Singh vs. Kuldeep Singh & Ors.(supra).
21. It is seen that in the Bhagwanti & Ors. vs. Subordinate Services Selection Board, Haryana & Another (supra), it was held that no order to the detriment of a person can be passed without hearing him, and in Ishwar Singh vs. Kuldeep Singh & Ors.(supra), the Hon'ble Apex Court had held that a Writ Petition impugning selection and appointments, without impleading and serving all the selected candidates, was not maintainable, more so when the appointments had already been made.
22. The connected OA No.4207/2013 Dharmendra Pandey (supra) had already been disposed of through oral order dated 06.02.2015 on the limited issue regarding disposal of representation against below Benchmark ACRs, which had not been communicated to the applicant therein, and all the other issues raised in that OA were not addressed, as they were not argued before the Bench that day. The order dated 29.07.2015 in OA No.1957/2015 Bhawani Prasad Lal Das (supra) had been passed in the context that the representation made by the applicant therein against the adverse remarks in his ACRs had been allowed on 07.09.2012, but that had not been brought to the notice of the Selection 15 OA No-3415/2014 Committee. In view of that, that OA had been disposed of, with directions to the respondents to convene a review Selection Committee meeting, which was complied with by the respondents. The applicant before us cannot derive any benefit from production of the orders passed in these two OAs.
23. On merits of the present case also, the judgments cited by Respondent No.2-UPSC in the cases of Sh. Krishna Chandra Mohapatra & Ors. and Jagdish Prasad Agrawalla vs. Union of India & Ors. with UPSC and Anr. vs. Aswini Kumar Das & Ors. (supra), Baljeet Singh vs. Union of India & Ors. (supra), UPSC vs. K. Rajaiah and Others (supra), UPSC vs. L.P. Tiwari & Others (supra), and Nutan Arvind (Smt.) vs. Union of India & Another (supra) make it clear that the scope of judicial review of recommendations made by such a Selection Committee is very limited, and when the applicant has himself not been fair in naming the likely to be affected private respondents, and getting notices served upon them, obviously he cannot be entitled to any relief in this OA.
24. Therefore, OA is rejected both on the aspect of non-joinder of necessary parties, as well as on merits of the case also, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.