Madras High Court
K. Gopalakrishnan, Ips vs The Union Of India (Uoi) Represented By ... on 7 September, 2007
Author: S. Palanivelu
Bench: S. Palanivelu
ORDER Elipe Dharmarao, J.
1. The petitioner was directly recruited as Deputy Superintendent of Police (Category-I) for the notified vacancy of the year 1980 through the Tamil Nadu Public Service Commission and he joined the service on 5.2.1982. Later, he was inducted into the IPS with effect from 12.12.1994 with the year of allotment as 1990 for purposes of seniority. It is the case of the petitioner that his juniors Mr. P. Tagore Paul and Mr. J. Ramamoorthy were included in the Select List for 1989-90 with the year of allotment as 1987. The Select Committee which met for considering the names for inclusion in the Select List for 1989-90 did not consider the name of the petitioner on the ground that he has not completed the requisite continuous service of eight years in the State Police Service whereas his juniors Mr. P. Tagore Paul and J. Ramamoorthy, who have also not completed eight years of service as on the crucial dale, have been included, considered and appointed to IPS. The representation submitted by the petitioner was rejected by the Union Public Service Commission, communicated by the Director General of Police, by his proceedings dated 5.12.2000, on the ground that he completed the requisite qualifying service of eight years only on 4.2.1990 and therefore, he will not be eligible for consideration for promotion from the Select List of 1989-90 and as he was not confirmed on the day of the Selection Committee met for preparation of the Select List of 1990-91, he was not considered by the Committee and that Select Lists once approved and implemented are not reviewed by the Commission suo-motu. Aggrieved by the same, the petitioner filed O.A. No. 8 of 2001 before the Central Administrative Tribunal, Chennai and the Tribunal, by its order dated 14.9.2001, finding that the petitioner has made out a case in support of his claim seeking to fix his year of allotment as 1987, has quashed the above said order communication of the Director General of Police, dated 5.10.2000 and directed the respondents to consider the case of the petitioner for refixing his seniority in the IPS cadre with effect from 1987 on par with his juniors P. Tagore Paul and J. Ramamoorthy and grant him all consequential monetary and service benefits within three months.
2. As against the said order of the Tribunal, the respondents have filed W.P. No. 269 of 2002 and this Court by the order dated 25.9.2002, has dismissed the said writ petition, upholding the order of the Tribunal, and further directing the respondents herein to implement the order of the Tribunal, within three months. As against the said order of this Court, SLP. No. 6797 of 2003 was preferred by the respondents before the Honourable Supreme Court and the same was dismissed as withdrawn on 14.8.2003. In the meanwhile, on 5.3.2003, in compliance with the directions of the Tribunal and this Court, the Review Selection Committee met at Chennai and rejected the claim of the petitioner as 'unfit' and thus did not recommend any change in the recommendations of the Selection Committee that met in December, 1989 for preparation of the Select List of 1989. The Union Public Service Commission, New Delhi had approved the above recommendations of the Review Selection Committee in their letter dated 8.4.2003. This was informed by the third respondent to the petitioner by the communication dated 12.4.2003. At this stage, complaining noncompliance of this Court's order in W.P. No.269 of 2002, the petitioner has filed Contempt Petition No. 293 of 2003. In the said contempt petition, the respondents have contended that in adherence to the orders of the Tribunal and the Court, the name of the petitioner was included in the 'select list' for the year 1989-90, but the petitioner was found to be unfit in the further exercise which was taken up by the Union Public Service Commission under the relevant rules. The said contempt petition was dismissed by this Court by the order dated 4.9.2003, on the ground that once the petitioner's name as included in the select-list, then, it could only be left to the Union Public Service Commission to consider him as to whether he was fit enough and the Union Public Service Commission in doing that exercising and finding the petitioner unfit has not committed any illegality.
3. Thereafter, the petitioner filed O.A. No. 626 of 2004 before the Tribunal, challenging the above said proceedings of the third respondent, dated 12.4.2003. Since the Tribunal has dismissed the said O.A, the petitioner has filed this writ petition.
4. The first respondent/Union of India, has filed a counter, stating that after rejection firm the Select List of 1989-90, in accordance with provisions contained in the IPS (Appointment by Promotion) Regulation, it is for the State Government and UPSC to ascertain that only such Officers figure in the zone of consideration, who fulfill all the eligibility criterion.
5. The third respondent/Government of Tamil Nadu has filed a detailed counter, thereby submitting that the selection of State Police Service Officers for promotion to the Indian Police Service is governed by the Indian Police Service (Appointment by Promotion) Regulations, 1955 and tile pre-requisite qualifications specified in the said Regulations are that (i) he should have completed not less than eight years of continuous service in the State Police Service (whether officiating or substantive); (ii) should be substantive member of the State Police Service on the crucial date and (iii) should not have attained 54 years of age on the crucial date.
6. It is further submitted that he was a directly recruited Deputy Superintendent of Police (Category-I) in the State Police Service on 5.2.1982. As he was facing disciplinary proceedings in P.R. No. 2/90 (old No. 45/88), he was not confirmed till 4.9.1991 in the post of Deputy Superintendent of Police and after the disposal of the said disciplinary proceedings, he was confirmed in the said post in Police Note No. 26, Home (Services-B) Department, dated 4.9.1991 and therefore, he will complete the stipulated eight years of continuous service in the post of Deputy Superintendent of Police only on 4.2.1990 and thus, he was not eligible for being considered for the IPS Select List, 1989 for which the crucial date is 1.1.1989. Likewise, the crucial date for the Select List for the year 1990-91 was 1.4.1990 and since the petitioner was not confirmed in the post of considered for inclusion in the IPS Select List for the year 1990-91
7. Regarding the inclusion of P. Tagore Paul and J. Ramamoorthy in the IPS Select List for 1989-90, this respondent submitted that these two State Police Service Officers were inadvertently included in the Select List for 1989, due to an error in computing their eight years of continuous service as Deputy Superintendent of Police in the State Police Service and this erroneous inclusion took place in the year 1989 and the petitioner came up with a representation dated 30.12.1998 claiming his seniority on par with them, who were his juniors, very belatedly after a lapse of nine years, by which time both the junior officers had retired from the Service. However, the representation of the petitioner was forwarded to the Ministry of Home Affairs and as advised by them, it was also referred to the Union Public Service Commission, New Delhi and the decision taken by the Union Public Service Commission on the said representation was communicated to the petitioner by the Director General of Police, Chennai on 5.10.2004. It has also been submitted that the erroneous inclusion of the said two persons cannot be the basis for extending similar benefits to the petitioner, who was actually not eligible for being considered for the IPS Select List for the year 1989, as he had neither completed eight years of continuous service as Deputy Superintendent of Police (Category-I) in the State Police Service nor was confirmed in the post of Deputy Superintendent of Police (Category-I) on the crucial date 1.1.1989. In State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. , the Apex Court has held that 'wrong judgment passed in favour of one individual does not entitle others to claim similar benefits'.
8. It is further submitted that according to Rule 9(1) of the Indian Police Service (Appointment by Promotion) Regulations, 1955 appointment to the Service shall be made by the Central Government in the order in which the names of the Members of the State Police Service appear in the Select List. Thereafter, in accordance with Rule 3(3)(ii) of the Indian Police Service (Regulation of Seniority) Rules, 1988, his year of allotment is fixed. The question of seniority comes only upon appointment to the IPS from the particular Select List. Regulation 3 of the IPS (Appointment by Promotion) Regulations, 1955 provides for a Selection Committee which prepares the Select List in accordance with the various rules contained therein and therefore, the contention of the petitioner that a Review Selection Committee Meeting ought not to have been convened is not tenable. Further, according the said Regulations, the State Government has the exclusive role in regard to drawing of the consideration zone of the eligible State Police Service Officers to be placed before tile Selection Committee. The Union Public Service Commission is concerned with the convening of the Selection Committee, placing the details about the eligible officers before the Selection Committee for the preparation of the Select List and the Central Government is entirely the authority concerned with the making of appointments from the Select List and thereafter fixing the year of allotment for the purpose of seniority.
9. This respondent, after narrating Rules 3(2), 5(4), 5(5) and 9 of the Indian Police Service (Appointment by Promotion) Regulations, 1955, would submit that year of allotment cannot be fixed straight away and the Tribunal, in the earlier proceedings which was affirmed by this Court, has also not ordered to refix the year of allotment, but has only directed to 'consider' refixing the seniority, which was scrupulously complied with. The Confidential Reports on the eligible officers are the basic inputs based on which the Selection Committee assess the officers and in the case of the petitioner, he was on medical leave for most of the period and that is considered for assessing him. Subsequent to the appointment to the Indian Police Service from the Select List of a particular year, the year of a promotee officer is assigned by the first respondent in accordance with IPS (Regulation of Seniority) Rules, 1988. The IPS officers whose year of allotment was fixed as 1986 and 1987 were already promoted as Inspector General of Police in the years 2005 and 2006 respectively and the officers of 1988 batch were considered for empanelment for promotion as Inspector General of Police on 12.3.2007 and necessary Government Orders empaneling them has already been issued on 26.3.2007. The petitioner's year of allotment was fixed as 1990 by the first respondent and since he has not completed the stipulated 18 years of service in the IPS, he did not come into zone of consideration for being considered for empanelment along with 1988 batch IPS Officers. On such grounds, it is prayed to dismiss the writ petition.
10. The learned senior Counsel appearing for the petitioner would submit that when once the cases of the juniors of the petitioner were considered and were accorded promotion, the respondents ought to have considered the case of the petitioner also for promotion. But, instead, the petitioner was unnecessarily made to run from pillar to post to get his due and without assigning any reason whatsoever, the respondents have simply rejected the claim of the petitioner for refixing his seniority in the IPS cadre with effect from 1987 on par with his juniors P. Tagore Paul and J. Ramamoorthy and grant him all consequential monetary and service benefits and the Tribunal also, without considering the case of the petitions properly has simply dismissed the same and therefore, it needs intervention by this Court.
11. On the other hand, the learned Additional Solicitor General appearing for the Government of India has submitted that earlier the Tribunal had directed the respondents to 'consider' the case of the petitioner for refixing his seniority in the IPS cadre with effect from 1987 on par with his juniors P. Tagore Paul and J. Ramamoorthy and grant him all consequential monetary and service benefits, which was upheld by this Court and in due compliance of the said direction of the Tribunal and this Court, the respondents have considered the case of the petitioner and the Review Selection Committee which met at Chennai rejected the claim of the petitioner as 'unfit' and thus did not recommend any change in the recommendations of the Selection Committee that met in December, 1989 for preparation of the Select List of 1989. The learned Additional Solicitor General would further submit that the names of the juniors of the petitioners were inadvertently included in the Select List for 1989, due to an error in computing their eight years of continuous service as Deputy Superintendent of Police in the State Police Service and this erroneous inclusion took place in the year 1989 and the petitioner cannot take advantage of such an inadvertent mistake committed by the respondents.
12. Admittedly, the petitioner was a directly recruited Deputy Superintendent of Police (Category-I) in the State Police Service on 5.2.1982 and the selection of State Police Service Officers for promotion to the Indian Police Service is governed by the Indian Police Service (Appointment by Promotion) Regulations, 1955 and Regulation 3 of the said Regulations provides for constitution of a Selection Committee, which prepares the Select List. The qualifying service for consideration for promotion to the cadre of IPS is eight years, which was not denied by the petitioner. Since the petitioner was appointed on 5.2.1982, it is the case of the respondents that he completed the requisite qualifying service of eight years only on 4.2.1990 and therefore, he was not eligible for consideration for promotion from the Select List of 1989-90. However, the petitioner would contend that two of his juniors viz P. Tagore Paul and J. Ramamoorthy were included in the Select List and they were also given promotion. This was explained by the respondents as an inadvertent mistake committed by them in computing the qualifying service of those two officers. In Vice-Chancellor, M.D. University, Rohtak v. Jahan Singh . It has been held:
Merely because benefit has been conferred to one person illegally, another person similarly situated cannot claim the same benefit on ground of equality.
Since, admittedly, the inclusion of the juniors of the petitioners in the Select list was done inadvertently, following the above judgment of the Apex Court, the petitioner cannot claim any benefit from the said illegality.
13. From the materials placed on record, it is clear that this erroneous inclusion took place in the year 1989 and the petitioner came up with a representation dated 30.12.1998 claiming benefits on par with them, who were his juniors, very belatedly after a lapse of nine years, by which time both the junior officers had retired from the Service. However, the representation of the petitioner was forwarded to the Ministry of Home Affairs and as advised by them, it was also referred to the Union Public Service Commission, New Delhi and the decision taken by the Union Public Service Commission on the said representation was communicated to the petitioner by the Director General of Police, Chennai on 5.10.2004 As has already been observed supra, except claiming benefits on par with his juniors who were given promotions due to a mistake committed in computing their service, the petitioner has not offered any reason as to how he is eligible for promotion. In spite of that, his representation was duly considered and since he was found to be 'unfit' for promotion, the respondents have rejected the claim of the petitioner.
14. At this juncture, the learned senior Counsel for the petitioner would submit that from the orders of the Tribunal and the Division Bench, it is clear that the petitioner has made out a case in support of his claim seeking to fix year of allotment as 1987, but, unfortunately, the Select Committee has taken a different view interpreting the word 'consideration'.
15. According to Regulation 5(4) of the IPS (Appointment by Promotion) Regulations, 1955, the Selection Committee shall classify eligible officers as "outstanding", "very good", "good" or "unfit" as the case may be on an overall relative assessment of their service records and according to Regulation 5(5) of the said Regulations, 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 the names inter se within each category-shall be in the order of their seniority in the State Civil Police Service Therefore, it is clear that the entry into the IPS cadre is not automatic on the inclusion of the officers named in the select-list. Considering all these aspects, the Division Bench of this Court, in Contempt Petition No. 293 of 2003, dated 4.9.2003, having once again gone into the merits and demerits of the claim of the petitioner and having found that though the petitioner had claimed a direction, the Tribunal had directed only consideration of the claim of the petitioner and in due compliance of the directions of the Court, the respondents have 'considered' the claim of the petitioner and since he was found to be 'unfit', his claim was rejected. The Division Bench ha further observed that once the petitioner's name was included in the select-list then, it could only be left to the Union Public Service Commission to consider him as to whether he was fit enough and the Union Public Service Commission in doing that exercise and finding him 'unfit' has not committed any illegality. It is to be mentioned that the said order of the Division Bench has become final. In the light of such observations by the Division Bench, we are unable to accept the contention of the learned senior Counsel for the petitioner that in spite of direction from the Tribunal and the Division Bench, the respondents have not refixed the year of allotment, since as has been held by the Division Bench of this Court, the direction was only for 'consideration', which was duly complied with by the respondents.
16. On the directions of this Court, the Union Public Service Commission has submitted the Selection Committee Meeting Files relating to promotion to the IPS of Tamil Nadu cadre held on 12.12.1989 and Review Selection Committee Meeting held on 5.3.2003. As could be seen from the said file, since he was appointed to the State Police Service on 5.2.1982, there is no ACR prior to the said period and the report for the year 1982 relates to his probationary period and thereafter, he was either on leave or on training for various spells upto 31.12.1982. Even the ACR for the year 1987 is for 3.5 months and he was on medical leave during the period of Report and therefore, the Committee was having ACRs for only three years. It is further seen that earlier he was dealt with under Rule 17(b) of the Tamil Nadu Civil Services (CCA) Rules and in G.O. Ms. No. 454, Home (Services-A) Department, dated i3.3.1991, the Government have awarded him the punishment of 'censure' and the ACR for the period ending 31.8.1987 shows that he used to report sick often and even though this adverse remark was communicated to the petitioner on 30.9.1988, he has not submitted any representation. Though from the service records of. the petitioner, it was clear that he has not completed eight years of continuous service in the State Police Service on 1.1.1989, the crucial date for drawing the Select List for 1989, and as such he is not eligible for being considered for the IPS Select List for 1989, in the light of the directions from this Court, the respondents have considered it appropriate to place the matter before the Review Selection Commission.
17. The Review Selection Committee on an overall assessment of the service records of the petitioner, did not recommend any change in the recommendations of the Selection Committee that met in December, 1989 for preparation of the Select List of 1989. While assessing the suitability of the petitioner, the said Committee did not take into consideration any adverse remarks in the Annual Confidential Reports which were not communicated to the petitioner and it was also recorded that the Committee was satisfied from the remarks in the confidential reports of the Officer that there was nothing against his integrity. The Review Selection Committee is headed by the Member, Union Public Service Commission and the five Members are the senior bureaucrats of the State, including the Chief Secretary. It is not the case of the petitioner that the said Committee is biased towards him and their assessment is hit by malice. When the respondents have duly considered the claim of the petitioner, pursuant to the directions of this Court and have arrived at their own assessment and did not recommend any change in the recommendations of the Selection Committee that met in December, 1989 for preparation of the Select List of 1989, in a legally sustainable manner, it cannot be interfered with.
18. In catena of cases, the Honourable Supreme Court has held that 'when a high level committee had considered the respective merits of the candidates, assessed and considered their cases for promotion, the Court cannot sit over the assessment made by the Committee as an appellate authority', vide Nutan Arvind v. Union of India , Durga Devi and Anr. v. State of Himachal Pradesh and Ors. , State of Madhya Pradesh v. Shrikant Chapekar JT 1992 (5) SC 633 and Dalpat Abasaheb Solunke v. B.S. Mahajan .
19. In Badrinath v. Government of T.N. , the Apex Court has held that:
Every officer has a right to be considered for promotion under Article 16 to a higher post subject to eligibility, provided he is within the zone of consideration. But the manner in which his case is to be considered is a matter of considerable importance in service jurisprudence as it deals with "fairness" in the matter of consideration for promotion under Article 16.
20. In the case on hand, as has already been discussed supra, the Tribunal, in the earlier proceedings which was affirmed by this Court, has also not ordered to refix the year of allotment, but has only directed to 'consider' refixing the seniority, which was scrupulously complied with by the respondents and the case of the petitioner was considered fairly by the concerned Committee and since the decision taken by the said Committee on administrative exigencies is neither mala fide, arbitrary nor without discernible principle, the same cannot be interfered with as has been held by the Honourable Apex Court in Director, Lift Irrigation Corporation Ltd. and Ors. v. Pravat Kiran Mohanty and Ors. and when merit is the criteria for the selection amongst the members of the service, no officer has legal right to be selected for promotion, except that he has only right to be considered along with as has been held by the Honourable Apex Court in R.S. Dass v. Union of India and Ors. 1986 (SUPP) SCC 617.
The Tribunal, considering all the facts and circumstances of the case in the light of the above pronouncement of the Honourable Apex Court has arrived at an unerring conclusion to dismiss the claim of the petitioner. On re-appreciation of the entire materials placed on record and in the light of the above discussion and the judgments of the Honourable Apex Court, we are not able to take any different view than that of the Tribunal. Accordingly, this writ petition tails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petitions are also dismissed.