Central Administrative Tribunal - Delhi
Rajiv Ranjan vs Union Public Service Commission on 4 October, 2012
Central Administrative Tribunal
Principal Bench
OA No.2578/2012
Reserved on: 27.09.2012
Pronounced on: 04.10.2012
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
Rajiv Ranjan
S/o Sh. B. N. Sinha
Aged about 50 years,
Deputy Commissinoer of Police, Security (HQ)
R/o E-15, Type-IV,
New Police Lines,
Kingsway Camp,
Delhi 110 009. Applicant
(By Advocate : Shri A. K. Behera)
Versus
1. Union Public Service Commission
Through its Secretary
Dholpur House,
Shahjahan Road,
New Delhi 110 011.
2. Union of India
through its Secretary
Ministry of Home Affairs,
Government of India,
North Block,
New Delhi 110 001. . Respondents.
(By Advocates : Mrs. Jasmine Ahmed for Respondent No.1.
Shri Rajeev Kumar for Respondent No.2)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A):
Shri Rajiv Ranjan, an Officer of 1988 Batch of Delhi, Andaman and Nicobar Islands Police Service (DANIPS), the applicant herein, being a regular Junior Administrative Grade I (JAG-I) of DANIPS and holding the post of Deputy Commissioner of Police, Security (Headquarter, Delhi Police) has been aggrieved by the letter dated 29.06.2012 (Annexure A-1) issued by the Union Public Service Commission (UPSC) wherein it was intimated that IPS (Appointment by Promotion) Regulations, 1955 did not provide for suo motto review of a select list after the same was approved by the Commission and follow up notification issued by the Government of India. It is the case of the applicant that his name came within the zone of consideration for promotion/induction into IPS for the vacancies of 2010, as the Government of India (Ministry of Home Affairs) vide letter dated 30.03.2011 determined 30 vacancies for promotion to the IPS of the Union Territory (UT) Segment of Joint AGMUT Cadre and forwarded a self contained proposal for convening the Selection Committee meeting which was held on 16.11.2011. The applicants name was considered by the Selection Committee at Sl. No.14 of the zone of consideration as per the eligibility list furnished by the Cadre Controlling Authority. After examining the service records of the applicant the Selection Committee assessed him as Good but with the said grading the applicant could not be included in the select list due to (i) statutory limit on the size of the select list and (ii) availability of officers with gradings higher than the applicant. After the approval of the recommendations of the Selection Committee by UPSC, the same was sent to the Ministry of Home Affairs vide letter dated 14.12.2011 and a notification was issued by the Government dated 16.12.2011. It is the case of the applicant that the Selection Committee considered last five years ACRs of the applicant including two ACRs (one year period from 1.04.2007 to 31.03.2008 and four months period from 1.04.2008 to 31.07.2008) in which the applicant had been given overall grading of Good. It is his contention that the said Good grading was never communicated to the applicant by the respondents before the Selection Committee meeting. It is averred that the 2nd respondent communicated below bench mark and adverse gradings in the ACRs seeking representation from 18 eligible selection grade officers of DANIPS for their promotion to JAG-II and JAG-I of the service vide letter dated 21.09.2011 but the applicant did not figure in the said list. It is, therefore, stated that it cannot be said and presumed that the applicant does not have any below bench mark grading ACRs which have been considered for promotion to JAG-II and JAG-I which have been considered by the Selection Committee for his induction to IPS. However, the 2nd respondent sent one more letter dated 3.10.2011 in which the applicants name figured at Sl. No.13 pertaining to the period 17.09.2003 to 31.03.2004 for which the applicant represented against the below benchmark ACRs which were considered and the grading was upgraded to Very Good. It is further the case of the applicant that along side the process of DPC for promotion to JAG-II and JAG-I of DANIPS, the Selection Committee considered the proposal for promotion to IPS of JAGMUT Cadre for the year 2010. The Selection Committee for IPS for the year 2010 met on 16.11.2011 before the DPC for JAG-II and JAG-I took place. The applicant did not have any opportunity although there were many more below benchmark ACRs of the applicant which the 2nd respondent had not communicated to him. This has prejudiced the applicant. The applicant was not selected for the year 2010 IPS because of the said below benchmark grading ACRs on the basis of which the Selection Committee assessed him as Good. It is further stated that the applicants juniors were promoted to IPS whereas his case was though considered but was not promoted to the IPS. The applicant obtained his ACRs for the last ten years under the Right to Information Act, 2005 only on 21.12.2011 which revealed that he had below benchmark ACRs for four specific periods namely (i) 01.04.2000 to 31.03.2001; (ii) 01.04.2003 to 16.09.2003; (iii) 01.04.2007 to 31.03.2008 and (iv) 21.04.2008 to 31.07.2008. Therefore, he submitted his representation dated 4.01.2012. The Competent Authority vide its letter dated 2.03.2012 upgraded his ACRs from Good to Very Good. On getting such an information, the applicant submitted a representation dated 12.03.2012 for reviewing the select list for the year 2010 by taking into consideration the upgraded ACRs of the applicant. The 2nd respondent after considering the representation found that injustice had been done to the applicant and due to the respondents mistake the applicant had not been included in the select list for the year 2010. Accordingly, the 2nd respondent requested the 1st respondent in his letter dated 14.06.2012 to review the IPS select list for the year 2010. However, the 1st respondent rejected the said proposal vide letter dated 29.06.2012 (Annexure-A1). Feeling aggrieved by the said action of the 1st respondent, the applicant is before the Tribunal in the instant OA.
2. Shri A. K. Behera, learned counsel appearing on behalf of the applicant would anchor his contentions on many aspects. The main plank of his contention was that the applicant should not suffer because of the mistake of the respondents as in the present case in the recommendation dated 14.06.2012 the 2nd respondent had admitted its mistake and has stated that there was clear justification for reviewing the case of the applicant for the IPS Select Panel for the year 2010. His contention is that as the applicants ACRs of 4 different spell have been upgraded from Good to Very Good after the main Selection Committee was held, a review Selection Committee is necessary to re-examine the applicants case for promotion to IPS for the select list of 2010. To buttress his arguments Shri Behera relied on the judgment of Honble Supreme Court in the matter of Amar Kant Choudhary versus State of Bihar and Others reported in (1984) 1 SCC 694 and highlighted that in the said case the Honble Supreme Court quashed and set aside the judgment of the Honble High Court holding that the Selection Committee should reconsider the applicants case after taking into consideration the orders passed by the State Government subsequently on any adverse entry which had been made earlier and any other order of similar nature pertaining to the services of the applicant. He would further place his reliance on the judgment of Honble Supreme Court in the matter of Union Public Service Commission versus Shri Hiranyalal Dev & Ors reported in JT 1988 (1) SC 609 which was also a similar type of case in which review of the case of the respondents was directed to be done by the Selection Committee, as if, there was no adverse remarks against him. He, therefore, urges that intervention of this Tribunal to direct the respondents to convene a review Selection Committee in order to reconsider the applicants case for his promotion to the UT segment of JAGMUT Cadre of IPS.
3. On receipt of the notice from the Tribunal, the 1st respondent (UPSC) has entered appearance and filed its reply affidavit on 3.09.2012 but the 2nd respondent did not file any counter reply despite service of notice but Shri Rajiv Kumar, learned counsel for respondent No.2 supported the stand taken by the UPSC in their counter affidavit on behalf of the Respondent No.1.
4. Mrs. Jasmine Ahmed, learned counsel appearing on behalf of the UPSC would refer to the reply affidavit to submit that the Selection Committee meeting was held on 16.11.2011 where the service records of the applicant including his ACR dossiers, made available by the Cadre Controlling Authority for the DANIPS officer, were considered and the applicant was assessed as Good. As other Very Good graded officers were available the applicant could not make it to the Select List having been graded as Good. She contends that as per the Regulation 5 (4) of the IPS Promotion Regulations the Select Committee has to classify the eligible State Police Service Officers coming within the zone of consideration as Outstanding, Very Good, Good and Unfit. In the instant case, the applicant was only assessed as Good on the basis of overall assessment and since there were large number of officers who have been assessed as Very Good by the Selection Committee, the applicant could not be put into the select panel. She further submits that there is no provision for suo motto review of a Select List once the same is approved by the UPSC and notified by the Government of India. On the basis of the said averments, she contends that the applicants case could not be taken up for review by the Selection Committee.
5. Having Heard the contentions of the parties, with the assistance of their counsel, we have perused the pleadings and relied on judgments. The short question is whether the impugned letter of UPSC is legally sustainable, if not, whether convening of the review Selection Committee can be directed?
6. The promotion of the State Police Service Officers to IPS is governed by the IPS (Appointment by Promotion) Regulation. The relevant regulations governing the present case being Regulation 5 (4) and 5 (5), we reproduce below the said Regulations, which are as under:-
Regulation 5 (4) The Selection Committee shall classify the eligible officers as `Outstanding, `Very Good, `Good and `unfit as the case may be on an overall relative assessment of their service records.
5 (5) The List shall be prepared by including the required number of names first from amongst 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 inter-se within each category shall be in the order of their seniority in the State Police Service.
Provided that the name of an officer so included in the list shall be treated as provisional if the State Government withholds the integrity certificate in respect of such an officer or any proceedings, departmental or criminal are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government.
Provided further that while preparing yearwise select lists for more than one year pursuant to the 2nd proviso to sub regulation (1), the officer included provisionally in any of the Select List so prepared shall be considered for inclusion in the Select List of subsequent year in addition to the normal consideration zone and in case he is found fit for inclusion in the suitability list for that year on a provisional basis such inclusion shall be in addition to the normal size of the select list determined by the Central Government for such year.
EXPLANATION I: The proceedings shall be treated as pending only if a charge-sheet has actually been issued to the officer or filed in a Court as the case may be.
EXPLANATION II: The adverse thing which came to the notice of the State Government rendering him unsuitable for appointment to the service shall be treated as having come to the notice of the State only if the details of the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential.
7. The above Regulations clearly stipulate that the Selection Committee of the UPSC will make relative assessment of the Officers in the zone of consideration on the basis of their respective service records. Admittedly, the ACRs of the officers for a period of five years was the main basis, though ACR dossiers of the officers would provide the performance of officers throughout their career. ACRs form very important role in adjudging the grades of the contesting officers coming within the zone of consideration.
8. Regulation 5 (1) dealing with the subject of preparation of a list of suitable officers envisages that each Selection Committee shall ordinarily meet every year and prepare a list of such members of the State Police Services as are held by them suitable for promotion to the service. The provision further indicates that ordinarily the Selection Committee should meet once every year. The said Regulations provide few grounds prohibiting the convening of the Selection Committee Meeting. The Proviso to the Regulation 5(1) provides that no meeting of the committee shall be held and no list for the year in question shall be prepared when (a) there are no substantive vacancies as on the first day of January of the year in the post available for the Members of the State Police Service under Rule 9 of the Recruitment Rules or (b) the Central Government in consultation with the State Government decides that no recruitment shall be made during a year or (c) the Commission on its own or on a proposal made either by the Central Government or the State Government decides that it is not practicable to hold a meeting of the Committee to make the selection to prepare a Select List. These prohibiting provisions would not be applicable in the present case. The Regulation is silent with regard to the typical issue that has been raised in the OA. In the present case the applicant has been assessed as Good by the Selection Committee when his gradings in 4 different spells has existed as Good but those have been upgraded by the competent authority from Good to Very Good. Such upgraded ACRs were not available before the Selection Committee for which he has been prejudiced as his juniors in the DANIPS have already been considered and selected in the Select List for promotion to IPS.
9. A similar analogy can be drawn from the DOP&T OM No.22013/1/97-Estt. (D) dated 13.04.1998 which indicates that a review DPC needs to be convened to rectify certain unintentional mistakes. Once, one of such mistakes which has been outlines in the said OM is fulfilled a review DPC is to be convened. One of the mistakes stipulates that where adverse remarks in the CRs were toned down or expunged after the DPC had considered the case of the officer. As per the law laid by Honble Apex Court in Dev Dutt versus Union of India (AIR 2008 SC 2513) any remark on the basis of which an employee is not promoted/selected to a higher post, would have the effect of adverse remarks. Once such effect is removed either by upgradation or expunction, case of such employee has to be reconsidered in a review Selection Committee or DPC as the case may be. If we apply this logic it would be necessary to conduct a review Selection Committee for the applicant in view of the fact that some of the ACRs where he was graded as Good have been upgraded as Very Good. When he having received Good but could not be selected because Very Good graded officials were available, such non selection become prejudicial against the applicant. Such upgradation of ACRs having been done after the meeting of the Selection Committee, the procedural propriety demands that we should direct the competent authorities to conduct a review Selection Committee for the applicant where the upgraded ACRs need to be considered along with other ACRs to take overall assessment to find out whether he is fit to be promoted to IPS.
10. In the back drop of above statutory provisions and our considered analysis in the matter, we may refer to the legal position on the matters of controversy
11. We are aware of the well settled proposition of law that it is not a legal requirement that reasons should be recorded for classifying an officer by the Selection Committee and the independence of the Selection Committee need not be meddled with by the Tribunal in exercising the power of judicial review as held by Honble Apex Court in UPSC versus K. Rajaiah,[(2005) 10 SCC 15], UPSC versus L.P. Tiwari((2006) 12 SCC 317); and M.V. Thimmaiah versus UPSC{(2008) 2 SCC 119 }. It is further noted that the power to classify as outstanding, very good, good and unfit is vested with the Selection Committee. That is a function incidental to the selection process. The classification given by the State Government authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large guided by the classification adopted by the State Government but having regard to the nature of the up gradation of the applicants grading in four spells of his ACRs which were not available before the Selection Committee, it is a basic requirement that the State Governments decision in upgrading of the said ACRs is placed before the Selection Committee for further assessment.
12. The Hon'ble Supreme Court considered a case almost similar to the present OA in Amar Kant Choudhary's case (supra). The appellant was a Deputy Superintendent of Police in the State of Bihar and he was eligible to be considered for appointment as a member of the Indian Police Service for the year 1973 His case was placed before the Committee constituted under Regulation 4 of the Regulations for the purpose of preparation of the list of suitable officers for promotion to the Indian Police Service Cadre of the State of Bihar in 1973, 1974, 1975 and 1976. In the years 1973, 1974 and 1975, he could not be included in the select list as he was junior to those who were included in the select list. In the year 1976 his name was not included in the select list as there was an adverse entry in his confidential roll of 1973-74. The Selection Committee took the decision to supersede the appellant at its meeting held on December 22. 1976. In view of the above entry in the confidential roll of the appellant. It is not disputed that the said adverse entry was communicated to the appellant in the year 1977 after the above meeting was over. It appears that there were also adverse entries in the annual confidential roll of the appellant for the year 1974-75. They were communicated to the appellant in the year 1976. The appellant made representations in respect of both the adverse entries in time. The adverse entry for the year 1973-74 was expunged by the State Government on December 3, 1980 and the adverse entries in the confidential roll for the year 1974-75 were expunged by two orders dated February 21, 1978 and October 7, 1980. There was no meeting of the Selection Committee from 1977 to 1980. It, however, met on March 11/12, 1981. On this occasion the appellant represented to the Committee that the adverse entries in his confidential rolls had been removed by the State Government by various orders and requested them to consider his case for promotion to the Indian Police Service Cadre. On this occasion the Committee did not look into the confidential rolls of the appellant for the years 1979-80 and 1980-81 which contained entries very favourable to the appellant for no fault of the appellant. The Committee however classified him as 'good' but did not include him in the select list while some of his juniors were included. The appellant represented to the Committee and the State Government against the decision taken by the Committee. The Committee again met on October .14, 1981. When nothing came out of the representations made by him, the appellant filed a writ petition questioning the validity of the decisions of the Selection Committee before: the Hon'ble High Court of Bihar which was dismissed at the stage of admission. Against the order of the High Court the appellant file this SLP before Hon'ble Apex Court. After referring to the legal position governing such cases laid down by it in Gurdial Singh Fijji v. State of Punjab, (AIR 1979 SC 1622), which was a case arising under the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 which more or less correspond to the Regulations applicable to the Indian Police Service allowed the case, the Honble Apex Court in Amar Kant Choudhary's case (supra) held as follows:
8. After giving our anxious consideration to the uncontroverted material placed before us we have reached the conclusion that the case of the appellant for promotion to the Indian Police Service Cadre has not been considered by the Committee in a just and fair way and his case has been disposed of contrary to the principles laid down in Gurdial Singh Fijji's case (supra).. We accordingly set aside the order of the High Court. We hold that the appellant has made out a case for reconsideration of the question of his promotion to the Indian Police Service Cadre of the State of Bihar as on December 22, 1976 and if he is not selected as on that date for being considered again as on March 12, 1981. If he is not selected as on March 12, 1981 his case has to be considered as on October 14, 1981. The Selection Committee has now to reconsider the case of the appellant accordingly after taking into consideration the orders passed by the State Government subsequently on any adverse entry that may have been made earlier and any other order of similar nature pertaining to the service of the appellant. If on such reconsideration the appellant is selected he shall be entitled to the seniority and all other consequential benefits flowing therefrom. We issue a direction to the respondents to reconsider the case of the appellant as stated above. We hope that the above direction will be complied with expeditiously but not later than four months from today.
13. Thus, it is trite law that when an employees ACR gradings get upgraded subsequent to the convening of the DPC or Selection Committee it would be necessary to consider the case of such employee after the upgradation in the ACR gradings have been received. Therefore, in such cases the competent authorities are to convene the review DPC/Selection Committee to re-examine the case of such employees.
14. In view of the above legal position, we may refer to the facts of the present case. In the context that the ACR is an important document, we note that the Selection Committee has considered 43 DANIPS Officers within the zone of consideration and have assessed all except the applicant as Very Good. The applicant has been assessed as Good. On the date of Selection Committee meeting (16.11.2011), the applicant was having four specific spells of ACRs before the Selection Committee which were not Very Good or above gradings assigned to him in those ACRs. Those period are as follows:
01.04.2000 to 31.03.2001 01.04.2003 to 16.09.2003 01.04.2007 to 31.03.2008 21.04.2008 to 31.07.2008
15. Admittedly, the applicant has received the ACRs for those periods and has represented to the concerned competent authority who on consideration have upgraded those gradings from Good to Very Good. It is seen that for the selection year 2010 for IPS these upgraded ACRs form a relevant part of the entire overall assessment. These upgraded ACRs were made available only after the Selection Committee meeting. Of course, at the time the Selection Committee met such upgraded ACRs were not available before it. Therefore, the ACRs then existing as on 16.11.2011 are such that the applicants assessment were accordingly done by the Selection Committee. Now that the ACRs gradings of the applicant for four periods have been upgraded to Very Good, it is but necessary that the Selection Committee should reconsider the applicants case for his promotion to IPS.
16. In the present case, the well set proposition of law would be attracted as the applicants ACR gradings have been sealed up and such sealed up gradings have not been examined by the Selection Committee while considering the applicants case for promotion with all DANIPS Officer of the UT Segment Joint AGMUT Cadre for the year 2010. Therefore, the letter issued by the UPSC on the applicants representation and the request made by the 2nd respondent is not sustainable in the eyes of law. The same needs to be quashed and set aside. We order accordingly.
17. In the conspectus of facts and circumstances of the case and guided by the judgments of Honble Supreme Court stated within, we are of the considered opinion that there are merits in support of the applicants claim. Thus, the OA succeeds. The impugned order dated 29.06.2012 is quashed and set aside. The respondents are directed to convene a review Selection Committee for considering the applicants case for promotion to the UT Segment of Joint AGMUT Cadre of IPS for the year 2010 and while doing so the Selection Committee will also consider the upgraded ACRs of the applicant along with other ACRs for proper assessment. In case, the Selection Committee, find him suitable for promotion he shall be granted promotion from the date his immediate junior was promoted. It goes without saying that consequential benefits, which would be legally admissible to the applicant, would also be extended to him. The respondents are directed to comply with the orders and directions as ordained above as expeditiously as possible and positively within a period of three months from the date of receipt of a certified copy of this order.
18. Accordingly, the OA is allowed in above terms and directions to the respondents. The parties are left to meet their respective costs.
(Dr. Ramesh Chandra Panda) (Syed Rafat Alam)
Member (A) Chairman
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