Central Administrative Tribunal - Hyderabad
Shri M. Nago Rao S/O Late Sri Laxman vs Union Of India (Uoi) Represented By The ... on 17 July, 2007
ORDER
M. Jayaraman, Member (Admn.)
1. Heard Dr. (Shri) K. Lakshmi Narasimha, learned Counsel for the applicant; Shri G. Jaya Prakash Babu, learned Senior Standing Counsel for the respondents 1 and 2; Shri B.N. Sarma, learned standing counsel for the respondents No. 3; Shri D.Y. Setti, learned special counsel for the State of Andhra Pradesh (Respondents 4 to 6) and Shri P. Bhaskar, learned Counsel for the Respondents 7, 8, 10, 12 and 17. None appeared for the remaining private respondents.
2. The present OA has been filed with the following prayer:
(a) To declare the Sub-regulation (3) of Regulation No. 5 of the Indian Police Service (Appointment by Promotion) Regulation 1955 as illegal, arbitrary and violative of Articles 14, 16 and 21 of Constitution of India and consequently quash the same as such, and consequently,
(b) declare that the applicant is entitled to be considered for vacancies meant for 2004 and also for future vacancies without reference to his attaining the age of 54 years, and consequently,
(c) direct the respondents to consider the name of the applicant for promotion under the above Regulations for all vacancies meant for 2003, 2004 and further vacancies meant subsequently without reference to his attaining the age of 54 years, and consequently,
(d) direct the respondents to appoint the applicant to the cadre of IPS under the above Regulations, and consequently,
(e) Call for the records pertaining to Government of India, Ministry of Home Affairs, Notification No. 1-14/11/12/2004 IPS.I, dated 11.7.2005 pertaining to Select List of State Police Service Officers for appointment to the IPS by promotion for the years 2003 and 2004 republished in G.O.Rt No. 4403 GAD (SC.C) Department dated 11.7.2005 issued by the State of Andhra Pradesh and quash the same as illegal, arbitrary and contrary to rules.
3. The brief facts of the case are that the applicant, an ST category officer, was appointed to the post of Deputy Superintendent of Police Grade-II on 7.9.1987. Later on, he was promoted as Additional Superintendent of Police in 1997 and further as Superintendent of Police Non-cadre in 2002. At present, he is working as Superintendent of Police, CID since December 2002 onwards. The next promotion of such State Police Officers is by way of conferment of Indian Police Service. For this purpose, Union of India issues notification and then selection process starts. The applicant was eligible to be promoted as IPS officer for the year 2003. The promotion of such state officers to IPS is governed by the Indian Police Service (Appointment by Promotion) Regulations 1955 as amended from time to time. The last DPC held for selection of officers was for the year 2002. There was no DPC held during the years 2003 and 2004. The next DPC had met during 2005 between February and March 2005 for selecting the candidates for the years 2003 and 2004. For this purpose, the official respondents had taken into account four vacancies for 2003 and seven vacancies for 2004. The applicant's seniority is at Sl. No. 14. As per rules, the zone of consideration is three times the number of vacancies. Accordingly, the respondents have taken only 12 candidates (four vacancies x three times) for the year 2003 and so the applicant was not considered and for the second year viz., 2004 though they have taken 21 candidates (seven vacancies x three times), the applicant was not considered because he had attained the age of 54 years in October 2003. [His name was not considered for the next year since the candidates who have attained the age of 54 years as on 1.1.2003 would be debarred.] According to the applicant, the respondents have wrongly taken the vacancies as four and seven for the years 2003 and 2004, whereas they ought to have taken eleven vacancies for the year 2003, in which case, he would have been within the consideration zone. Accordingly, he has filed the present OA with the prayer as above.
4. The applicant has filed this OA mainly on the following grounds:
(a) Calculation of vacancies meant for the year 2003 should be seven and not four. The respondents have wrongly calculated the vacancies as done by them by ignoring the mandatory provisions of law by counting the vacancies meant for 2003 as that of 2004.
(b) The main plea of the applicant is that the Sub-clause (3) of Regulation 5 of Indian Police Service (Appointment by Promotion) Regulations 1955 is wholly arbitrary and unconstitutional. According to this sub-clause, persons who have attained the age of 54 years on the first day of January of the year in which the DPC meets, will not be considered for promotion. The above restriction of 54 years was substituted by the DoP&T Notification dated 5.10.1979 when the retirement age of All India Service personnel was 55 years and so there could be no relevance in restricting the age of 54 years for consideration for promotion to IPS since the present retirement age is 60 years. The restriction of the age of 54 years embarked upon for non consideration at the age of 54 years has no relevance and has no nexus with the objective sought to be achieved. The applicant's plea is that the impugned Regulation is bad in law and should be quashed.
(c) The applicant's plea is that every person has a right to be considered for promotion which is a fundamental right guaranteed under Articles 14 and 16 of the Constitution of India. Exclusion at the age of 54 years for consideration for promotion is hit by these articles and the above rule is violative of the Constitution and deserves to be struck down as such.
5. The Respondents 1 and 2 viz., Union of India and the Secretary, Ministry of Home Affairs, have filed a detailed reply opposing the above contentions of the applicant. It has been stated that the present case relates to the recruitment by promotion from the State Police Service Officers to the Indian Police Service (IPS). The appointment from the State Police Service to IPS is solely governed by and made under the Indian Police Service (Appointment by Promotion) Regulations, 1955 as amended from time to time. It is envisaged that the State Government, UPSC and the Central Government would play distinct roles with the specific mandates in the process of preparation of the select list of State Police Service officers for promotion to the Indian Police Service, right from the stage of drawing the list of eligible officers by the State Government to finally making appointments to the service from the select list by the Central Government. 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 the Selection Committee in terms of seniority of these officers in the State Police Service and UPSC is wholly concerned with reference to the select list prepared and approved under Regulation 7(3) of the said Regulations on the basis of the grading made by the Selection Committee with the aid of the observations of the State and the Central Government. It is the Central Government which is entirely concerned for making appointments from the select list on the recommendations of the State Government in the order in which the names of the Members of the State Police Service appeared in the select list for the time being in force during its validity period.
6. It is further stated that the State Government being the sole custodian of service records of State Police Service officers is required to furnish a proposal for convening the meeting of the selection committee along with the list of eligible State Police Service officers and their service records, integrity certificate etc., direct to the Union Public Service Commission for consideration of the eligible officers for inclusion in the select list for their subsequent appointment by promotion to the IPS. The Commission, scrutinizes the proposal/records and fixes a meeting of the selection committee. The Central Government nominates its representative on the selection committee as and when the Commission fixes the meeting. The list prepared by the selection committee is finally approved by the UPSC and forms the select list. Lastly, in terms of Regulation 9(1) of IPS (Appointment by Promotion) Regulations, 1955, appointment to the IPS of such Members of the State Police Service who are included 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 its validity period.
7. Coming to the specific grievance of the applicant in the subject case, the respondents 1 and 2 have stated that in the case of Andhra Pradesh, the last select list from which appointments by promotion to the IPS were made, was in the year 2002. For initiating the process of recruitment by promotion to IPS of Andhra Pradesh during 2003, it was observed that as per the information furnished by the State of Andhra Pradesh, 55 promotee IPS officers were in position in the State IPS cadre against the promotion quota of 59 as on 1.1.2003. The State Government attributed the availability of four vacancies due to retirement of four promotee IPS officers viz., S/Shri M. Satyanarayana Rao, IPS (SPS : 92 - w.e.f. 31.1.2002), C.V. Seshagiri Rao, IPS (SPS : 80 w.e.f. 30.09.2002), K.S.N. Murthy, IPS (SPS : 80 W.E.F. 31.10.2002) and G. Alfred, IPS (SPS : 80 w.e.f. 30.11.2002). Therefore, four vacancies were determined for preparation of the select list of 2003 in terms of Regulation 5(1) of the IPS (Appointment by Promotion) Regulations, 1955. However, the selection committee meeting for preparing 2003 select list against the four vacancies could not be held in view of the order dated 21.2.2003 passed by this Hon'ble Tribunal in OA Nos.1004/2002 and batch and the order dated 7.8.2003 passed by the Hon'ble Andhra Pradesh High Court in W.P. No. 6457/2003 and batch. In the above cases, this Hon'ble Tribunal had directed to review the select list already prepared for the year 2002. While confirming this Hon'ble Tribunal's order, the Hon'ble High Court had directed the official respondents not to proceed with the preparation of 2003 select list till the entire process of review of 2002 select list was completed. UPSC filed a review petition in the High Court and failed to obtain suitable order from the Hon'ble High Court. Therefore, UPSC had filed an SLP in the Hon'ble Supreme Court against the order of the Hon'ble High Court.
8. In the meanwhile, as the year 2004 commenced, in terms of the proviso to Regulation 5(1)(b) of the IPS (Appointment by Promotion) Regulations, year-wise select lists of 2003 and 2004 were to be prepared as no meeting of selection committee could be convened during 2003. It was observed that the promotion quota of IPS A.P. Cadre as on 1.1.2004 was 63 against which the State Government had reported that 52 promotee IPS officers were in position. Since out of 11 vacancies thus available, four had already been earmarked for preparation of 2003 select list, seven vacancies were determined for preparation of the selection list of 2004. Subsequently, the Hon'ble Supreme Court, vide interim order dated 9.12.2004 passed in the SLPs filed by the Commission, directed the respondents to proceed with the preparation of the select lists after 2002 and to keep the recommendations in a sealed cover to be opened before it. In pursuance of these orders, the meeting of the selection committee to prepare the year-wise select lists of 2003 and 2004 was convened by the UPSC on 4th and 5th February 2005. Thus, in the view of the respondents 1 and 2, there is no merit in the submissions made by the applicant and so the OA should be dismissed. Since the interim order dated 28.1.2005 was passed by this Hon'ble Tribunal not to declare the outcome of the select committee meeting held on 4th and 5th February 2005 for preparation of the year-wise select lists of 2004 and 2005, permission is being sought to go ahead with the above process of declaration of the out come of the meeting.
9. The 3rd respondent viz., Union Public Service Commission have also filed a detailed reply wherein they have explained the process of selection more or less on the same lines as mentioned above and generally supporting the submissions made by the respondents 1 and 2. Particularly it is stated that though the selection committee meeting for the year 2003 was scheduled to be held on 7.8.2003, in view of the specific orders of the Hon'ble High Court, the Committee decided not to proceed with the selection and accordingly it was postponed. Subsequently, however, writ petitions and review petitions were filed before the Hon'ble High Court which were all dismissed. Accordingly, UPSC filed SLP (C) No. 13467-69 of 2004 before the Hon'ble Supreme Court against the order dated 7.8.2003 of the Hon'ble High Court of Andhra Pradesh whereupon the Hon'ble Supreme Court, on 9.12.2004, passed the interim order directing the selection committee constituted by the UPSC to consider afresh the matter before it viz., dispute of the selection for the year 2002. While passing such an order, the Hon'ble Supreme Court also allowed the selections for IPS for the succeeding years i.e., 2002-2003 and 2003-2004 to go on and the cases of Shri Harikumar and Shri M. Kantha Rao will be considered for the years in which they will come up within the zone of consideration along with the other eligible officers. However, it was directed that the select list for these two years shall not be announced pending further orders of the Hon'ble Supreme Court. Accordingly, the meeting of the selection committee for preparation of the select lists for the years 2003 and 2004 for promotion to IPS of A.P. Cadre was required to be convened. By order dated 6.1.2005, The Government of Andhra Pradesh, forwarded proposals to prepare year-wise select lists of 2003 and 2004 against four and seven vacancies respectively as determined by the Government of India vide Ministry of Home Affairs letter dated 15.1.2003 and 25.3.2004 respectively. Accordingly, as per Regulation 5(2), the zone of consideration for the year 2003 was determined as twelve, and for seven vacancies for the year 2004, the zone of consideration was determined as twenty one. The applicant's name could not be included in the zone of consideration for the year 2003 because as per the inter se seniority of State Police Service officers, as provided by the State Government, other officers senior to the applicant were available for inclusion in the zone of consideration. Similarly, for the year 2004 also, the applicant was not considered eligible as he had already crossed 54 years of age as on 1.1.2004, the crucial date of eligibility for the year 2004. In the mean time, the applicant had filed the present OA in that an interim order dated 28.1.2005 was passed by the Hon'ble Tribunal directing to forward the name of the applicant to the DPC to be considered for the year 2003 and further directing the DPC to consider the case of the applicant if he is otherwise found eligible. However, it was directed that the result of the DPC minutes in relation to the applicant shall not be declared without the permission of this Hon'ble Tribunal. Accordingly, the selection committee had met on 4th and 5th February 2005 to prepare the selections of 2003 and 2004 for promotion of State Police Service officers to the IPS cadre of Andhra Pradesh. The UPSC further stated that in pursuance of the direction of the Hon'ble Tribunal, the case of the present applicant was placed before the selection committee which met on 4th and 5th February 2005. Taking into consideration the factual position, the committee opined that the applicant did not fall in the stipulated zone of consideration for the year 2003 and for the year 2004 the applicant was not eligible for consideration as he had attained the age of 54 years as on 1.1.2004. With the above submissions, the 3rd respondent have opposed the contentions of the applicant and requested for dismissal of the OA.
10. The respondents 4 to 6 have also filed a detailed reply statement opposing the contentions made by the applicant more or less on the lines stated above. They have specifically given the details as to how the vacancies arose for the relevant years. It is stated accordingly that the select list for the years 2003 and 2004 could not be prepared in the respective years due to the court litigations. However, as per the interim order dated 9.12.2004 passed in SLP(C) Nos. 13467 - 13469 of 2004 filed by the UPSC, the Hon'ble Supreme Court directed inter alia, that the selections to IPS for the years 2003 and 2004 can go on and the select lists for these two years shall not be announced till further orders of the Hon'ble Supreme Court. Accordingly, UPSC convened a meeting of the selection committee scheduled on 4th and 5th February 2004, the respondents have further stated that four vacancies had arisen due to the retirement of the following promotee officers during the year 2002:
S. No. Name of the promotee officer Date of retirement 1. Shri M. Satyanarayana Rao (92) 31.01.2002 2. Shri C.V. Seshagiri Rao (94) 30.09.2002 3. Shri K.S.N. Murthy (80) 31.10.2002 4. Shri G. Alfred (80) 30.11.2002
11. As per Regulation 5(1) of the Promotion Regulations, the select list for the year 2003 has to be prepared for the above four vacancies only which were available as on 1.1.2003. In their order dated 15.1.2002, the Government of India, Ministry of Home Affairs, have determined the vacancies for preparation of the select list for the year 2003 as four. Further, three vacancies have arisen due to the retirement of the following promotee officers during the year 2003:
S. No. Name of the promotee officer Date of retirement 1. Shri P. Kishan Rao IPS (94) 31.3.2003 2. Shri R. Sitarama Rao, IPS (80) 30.8.2003 3. Shri P. Babji, IPS (80) 30.9.2003
12. Four more vacancies have arisen due to the increase in the promotion quota from 59 to 63 consequent on the cadre review as notified vide notification dated 5.11.2003. As per Regulation 5(1) of the Promotion Regulations, the select list for the year 2004 has to be prepared for the above seven vacancies i.e., 4 + 3 vacancies, which are available as on 1.1.2004. In their letter dated 25.3.2004, the Government of India have already determined the vacancies for preparation of the select list for the year 2004 as seven. As per the integrated seniority list of the State Police Service officers published by the Government of Andhra Pradesh, the name of the applicant figures in the list of eligible officers at Sl. No. 14 i.e., below Shri PVS Ramakrishna (Sl. No. 13) and above Shri KVV Gopal Rao (Sl. No. 15). Since only three times the number of the vacancies are to be taken into consideration for the zone of consideration for the year 2003, the select list zone of consideration would be 4 x 3 = 12. Since the applicant is at Sl. No. 14 he has not come within the zone of consideration for the year 2003 select list.
13. Since the date of birth of the applicant is 22.10.1949, he has crossed 54 years of age as on 1.1.2004 i.e., the crucial date for computing the eligibility for preparation of 2004 select list. So, he could not be considered for inclusion in the 2004 select list. Accordingly, the respondent Nos.4 to 6 have opposed the contentions of the applicant that the vacancies for 2003 select list would not be seven but only four and so they have requested for dismissal of the OA.
14. No reply has been filed by the respondents 7 to 9, 11 to 17. However, the Respondent No. 10 has filed reply wherein he has, more or less, adopted the same arguments as the respondents 1 to 2 to say that computation of vacancies for which the select committee met, was done as per Regulation 5(1) of the said Regulations and accordingly the number of substantive vacancies were arrived at as on 1st of January which is the cut off date. Accordingly, as on 1.1.2003, there were only four vacancies which were to be determined by the Government of India in consultation with the State concerned and a decision was taken vide letter dated 15.1.2003 to say that the number of vacancies for 2003 was only four. Similarly, by letter dated 25.3.2004, the cadre strength was enhanced from 54 o 63 only with effect from 1.1.2004 and, therefore, there were only four vacancies as on 1.1.2003 and the contention of the applicant that there were seven vacancies available for the year 2003 was not correct. It is further stated by the respondent No. 10 that as per Regulation 5(3), the upper age limit of 54 years would apply and the applicant was not eligible for consideration for 2004 select list since as on 1.1.2004 the applicant would cross the age of 54 years. He has also submitted that this prescription of upper age limit of 54 years which has been challenged by the applicant the OA has already been the subject matter of an Appeal (Civil) No. 6234/2004 before the Hon'ble Supreme Court in the case of Government of India v. G. Limbadri Rao and Ors. wherein the Hon'ble Supreme Court had upheld the validity of the prescription of the upper age limit in the All India Service Promotion Regulations as 54 years although the upper age limit for superannuation was raised to 60 years.
15. The matter was extensively heard in several sittings. The learned Counsel for the applicant cited the following case laws with regard to interpretation of the provisos of enactment:
i) Union of India v. Sanjay Kumar Jain para 11 o 13
ii) Nandakishore Ganesh Joshi v. Commissioner, Municipal Corporation of Kalyan and Dombivili and Ors. paras 16 and 19
iii) Maulavi Hussein Haji Abraham Umraji v. State of Gujarat paras 10 and 14
iv) MP Cement Manufacturers Assn v. State of MP para 15
v) 2003 11 SCC 704 Sankar Ram & Co v. Kasi Naicker Para 7
vi) Lakshminrayan R Bhattad v. State of Maharashtra Para 56
vii) Union of India v. Popular Construction Para 12
viii) Kush Saigal v. M.C. Mitter Para 32
ix) Molar Mal v. Kay Iron Works Pvt Ltd Para 15
x) CIT v. Indo Mercantile Bank Ltd.
xi) CIT v. P. Krishan Warrier
xii) Durga Dutt Sharma v. Navaratna Pharmaceuticals Laboratories
xiii) Kedarnath Jute Mfg Co. Ltd. v. TO
xiv) Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai
xv) CCT Board of Revenue v. Ramkishan Shrikishan Jhaver xvi) S. Sundaram Pillai v. V.R. Pattabiraman
16. The learned Counsel for the respondents 1, 2 and 3 cited the case law in the case of Vijay Singh Charak v. Union of India and Ors. to press the point that for the select list prepared for more than one year, clubbing is not permissible.
17. The learned Counsel for the 3rd respondent cited a decision of the Hon'ble Supreme Court in the case of T.N. Administrative Service Officers Association and Anr. v. Union of India and Ors. to press the point that the vacancies to be filled by promotees should be only the basis of substantive vacancies available on the first day of January of the year in which the meeting was held and not on the basis of the anticipated vacancies as per Regulation 5(1) as amended in 1977.
18. We have given our careful consideration to all the pleadings made in this OA. The points that arise for consideration in this OA are as follows:
(a) Whether the calculation of vacancies for the year 2003 as four was in accordance with the Indian Police Service (Appointment by Promotion) Regulations, 1955; and
(b) Whether Sub-regulation 3 of the aforesaid Regulation 5 which imposes the age limit of 54 years for consideration for promotion is illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India.
19. In order to appreciate the issue on hand, it is useful to refer to Regulation 5(1), 5(2) and 5(3) of the Indian Police Service (Appointment by Promotion) Regulations 1955 which are reproduced below:
5(1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Police Service as are held by them to be suitable for promotion to the Service. The number of members of the State Police Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held, in the posts available for them under Rule 9 of the Recruitment Rules. The date and venue of the meeting of the Committee to make the selection shall be determined by the Commission;
Provided 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 posts 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 the year to the substantive vacancies as on the first day of January of the year in the posts available for the members of the State Police Service under Rule 9 of the Recruitment rules;
Provided further that where no meeting of the committee could be held during a year for any reason other than that provided for in the first proviso as and when the Committee meets again, the Select List shall be prepared separately for each year during which the committee could not meet as on the 31st December of each year.
Explanation : In case of joint Cadres, a separate select list shall be prepared in respect of each State Police Service.
5(2) The Committee shall consider for inclusion to the said list, the case of members of the State Police Services in the order of seniority in that service of a number which is equal to three times the number referred in Sub-regulation (1).
Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers;
Provided further that in computing the number for inclusion in the field of consideration, the number of officers referred to in Sub-regulation (3) shall be excluded;
Provided also that the Committee shall not consider the case of a member of the State Police Service unless on the first day of January of the year for which the select list is prepared he is substantive in the State Police Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent thereto by the State Government.
Provided also that in respect of any released Emergency Commissioned or Short Service Commissioned officers appointed to the State Police Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers hall be eligible for consideration if they have completed not less than four year of actual continuous service, on the 1st day of January of the year for which the Select List is prepared, in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent thereto by the State Government.
Explanation : The powers of the State Government under the third proviso to the sub-regulation shall be exercised in relation to the members of the sTte Police Service of constituent State, by the government of that State.
5(3) The Committee shall not consider the cases of the members of the State Police Service who have attained the age of 54 years on the first day of January of the year for which the select list is prepared:
Provided that a member of the State Police Service whose name appears in the Select List in force immediately before the date of the meeting of the Committee and who has not been appointed to the service only because he was included provisionally in the Select List shall be considered for inclusion in the fresh list to be prepared by the Committee, even if he has in the meanwhile, attained the age of fifty four years.
Provided further that a member of the State Police Service who has attained the age of fifty four years on the first day of January of the year for which the Select List is prepared shall be considered by the Committee, if he was eligible for consideration on the first day of January of the year or any of the years immediately preceding the year in which such meeting is held but could not be considered as no meeting of the Committee was held during such preceding year or years under item (b) of the proviso to Sub-regulation (1).
20. A plain reading of Regulation 5(1) above clearly shows the following:
(a) The select committee should ordinarily meet every year;
(b) This committee will prepare a list of members of the State Police Service officers suitable for promotion to the IPS;
(c) The number of members of State Police Service to be included shall be determined by the Central Government in consultation with the State Government;
(d) The number of members of State Police to be promoted shall not exceed the number of substantive vacancies as on 1st January of the year in which the select committee meeting is held;
(e) The date and the venue of the meeting of the committee shall be determined by the UPSC.
21. From the above, it follows that the select list for each year should be prepared on the basis of the vacancies as on the first January of the year in which the meeting is held. As per the first proviso, no meeting shall be held and no list for the year in question shall be prepared only when there are no substantive vacancies available on the first January of the year and also where the Central Government, in consultation with the State Government, decides that no recruitment shall be made during the year. According to the second proviso, where no meeting of the Committee could be held during a year for any reason (other than those mentioned in the first proviso) as and when the Committee meets again, the select list shall be prepared separately for each year during which the committee could not meet as on 31st December of each year. (As per Regulation 5(2) the zone of consideration to be determined by the State will be three times the substantive vacancies in the order of seniority. Regulation 5(3) puts a bar for consideration for promotion where any member of the State Police Service has crossed 54 years as on 1st January of the relevant year.)
22. The learned Counsel for the applicant argued mainly on the interpretation of the second proviso to say that a proper reading of the above proviso would show that where a Committee could not meet in any previous years, the select list shall be prepared separately for each year taking into account not only the vacancies as on first January of the year but also the vacancies arising up to 31st December of that year. In other words, the learned Counsel would argue that the words "as on 31st December of each year" occurring towards the end of second proviso, would have to be given its proper meaning and thus, the select list would have to be prepared 'as on 31st December of each year' and not as on 1st January of each year.
23. We are afraid, we cannot subscribe to the above interpretation of the 2nd proviso. The words "as on 31st December of each year" are to be taken to qualify only the expression - "during which the Committee could not meet" and not to "the select list to be prepared separately for each year".
24. As seen from para 20 above and as pointed out by the respondents, the provision for determining the number of substantive vacancies for each year is contained in the main Regulation (1) itself i.e., as on 1st January of each year. Therefore, there would be no need for any other date to be given in the proviso clause. As the main Regulation has already laid down the procedure for determining the vacancies for any year i.e., substantive vacancies as on 1st January of that year, the proviso clause would not touch upon the question of determining the vacancies once again. What all the 2nd proviso says, in our opinion, is only that there shall be no clubbing and that the select list shall be prepared separately each year during which the committee did not meet. It appears to us that to be abundantly clear, the words "as on 31st December of each year", has been placed in the proviso clause. Thus, whenever reference to select list for any year is made vide 2nd proviso to Regulation 5(1), it is always as on 1st January of that year and not 31st December of that year, as argued by the learned Counsel for the applicant. The above view is also supported by the decision of the Hon'ble Supreme Court in the cited case law in the case of T.N. Administrative Service officers Association and Anr. v. Union of India and Ors. cited by the 3rd respondent vide para 17 above.
25. In view of the above and since the Government of India has already determined the vacancies for preparation of the select list for the year 2003 as four vide letter dated 15.1.2003 which they have done in pursuance of the Regulation 5(1), the number of vacancies for 2003 is correctly determined as four only. The applicant's plea that the vacancies that arose during the year 2003 should be added to this and taken together as the vacancies for the year 2003 is not acceptable for the reasons discussed above. Similarly, the Government of India, vide letter dated 5.11.2003 have determined the vacancies for the year 2004 as seven in terms of the Regulation 5(1) above i.e., four vacancies which have arisen due to increase in promotion quota from 59 to 63 and three vacancies due to the retirement of promotee officers during the year 2003.
26. None of the case laws cited by the applicant would come to his rescue. On the other hand, the case law cited by the respondents 1 to 3 in the case of Vijay Singh Charak (supra) would directly apply to the present case. In the cited case, their Lordships have held (vide para 11 of the judgment) that there cannot be clubbing of the vacancies for several years and there cannot be common select list for these years. Their observations in para 12 are reproduced below:
A select list can only be prepared for a particular year and only those who are eligible in that particular year alone can be considered for selection in the select list. Even if the select list is not prepared in that year, it will relate back to that particular year.
27. In the subject case, the selection committee could not meet during the year 2003, for the reason that the Hon'ble Supreme Court had issued an interim injunction directing not to hold any section committee meeting for the years 2003 and 2004. The dispute that came before the Hon'ble Supreme Court relating to the year 2002 was resolved. That is how 2nd proviso is attached in this case. If, on the other hand, the selection committee had met in the year 2003 as per schedule, the number of vacancies would have been only four i.e., as on 1st January 2003 as correctly determined by the respondents. Thus, applying the ratio of the decision of the Hon'ble Supreme Court in the above cited case also, the select list has to relate back to the year in which the Committee ought to have met viz., 2003, in which case the vacancies as on 1st January 2003 alone could be taken and not the vacancies that arose during the year 2003. In the light of the above, the contention of the applicant in this regard has to be rejected. In the light of the above, we answer the point (a) in para 18 above in the affirmative.
28. As regards point No. 2, the applicant has argued that the Regulation 5(3) of the Indian Police Service (Appointment by Promotion) Regulations, 1955 has placed an embargo on attaining the age of 54 years as on 1st January thus shutting down the consideration of the applicant for promotion which is a fundamental right. Since this Regulation was introduced by way of an amendment when the age of superannuation of All India Service employees was 58 years and now that it has been increased to 60 years, it has got no nexus and hence it has to be declared illegal. In his view, since the feeder category is the State Government employees, fixing an embargo on the age of 54 years does not explain the nexus it seeks to achieve. Accordingly, the learned Counsel for the applicant has argued that the above provision violates Articles 14, 16 and 21 of the Constitution of India and bad in law and should be set aside.
29. Here also, we are afraid, we cannot endorse the view of the learned Counsel for the applicant. As pointed out by the learned Counsel for the Respondent No. 10, this matter also has already been decided by the Hon'ble Supreme Court, in the case of Government of India v. G. Limbadri Rao and Ors. (supra) in Civil Appeal 6234 of 2004 delivered on 22.9.2004 out of SLP(C) No. 11708 of 2002, observing thus-
In other words, the short question that falls for consideration in the instant appeal is as to whether the respondent have committed any illegality in considering the case of the first respondent for non-inclusion in the proposals to be sent to the Union Public Service Commission for preparation of the select list of Non-State Civil services officers for the year 2002 for appointment to the IAS on the ground that the first respondent has attained the age of 54 years as on 1.1.2002.
Referring to the proviso to Regulation 4, the Hon'ble Court observed-
However, the proviso mandates that the State Government shall not consider the case of the person who has attained the age of 54 years on the first day of January of the year in which the decision is taken to propose the names for consideration of the Committee.
The proviso to Regulation 4 clearly states that the State Government shall not consider the case of a person who has attained the age of 54 years on the first day of January of the year in which the decision is taken to propose the names for consideration of the Committee.
In the instant case, as already noticed, the proposal was sent by the State Government in January, 2002. Therefore, on 1.1.2002, the first respondent has completed the age of 54 years. In our opinion, the first respondent is not eligible and entitled for considering his name for appointment to the post of IAS by selection.
Accordingly, the Hon'ble Supreme Court set aside the order of the Hon'ble High Court of Andhra Pradesh allowing the respondent to be considered for promotion even though he had crossed the age of 54 years. In view of the above, the contention of the applicant in this regard, has to be rejected. We accordingly answer the point (b) in para 18 above in the negative.
30. In the light of the above discussions, the OA fails and has to be dismissed. The OA is accordingly dismissed. There shall be no order as to costs.
31. Now, in the instant case, it is admitted that as on 1st January, 2003 there were only four vacancies. So, according to the respondents 1 to 6, the select list for 2003 was prepared only for four vacancies as on 1.1.2003. There were three vacancies which arose due to the retirement of promotee officers during 2003. But these would have to be taken into account only for the next year as on 1st January. Of course, further four more vacancies arose due to increase of the promotion quota from 59 to 63. Thus, as on 1st January 2004, there were seven vacancies, according to the respondents. This is the point of dispute between the applicant and the respondents. The learned Counsel for the applicant, taking into account the interpretation of the 2nd proviso as above, argued that because there were no meetings held between 2003 and 2004 and when such a meeting was held in 2005, there shall be separate select lists for each year viz., 2003 and 2004 with the difference that for 2003 the vacancies not only standing as on 1.1.2003 shall be taken but also the vacancies that arose during the year 2003 i.e, as on 31st December of that year shall be taken. According to the learned Counsel for the applicant, the actual number of vacancies that should have been reckoned for the year 2003 is 4+3=7 and not only four. According to him, the vacancies for 2004 will be nil. Whereas the respondents have stated that the vacancy position has to be determined in accordance with the proviso to Regulation 5(1) and so they are bound by the number of vacancies as on 1st January of each year. Accordingly, the vacancies for 2003 will be only four and the vacancies that arose during the year 2003 would be reckoned as on 1st January 2004 and will be taken into account only for the year 2004, with the additional vacancies which will be seven for the year 2004 and not as stated by the applicant.
32. According to the first proviso, where no meeting is held during a particular year for the reasons other than those mentioned in the above proviso, that means, there being no vacancy or the Central Government decides that no recruitment shall be made, in such case, when the committee meets again, the select list shall be prepared separately for each year during which the Committee could not meet as on 31st December of each year. It is this portion of the Regulation which requires interpretation. A clear reading of the same shows that the second proviso does not lay down the procedure for determining the vacancies that are covered by the main proviso to Regulation 5(1). What is provided in the 2nd proviso is only that when the Committee meets after a gap of a period, then the select list will be prepared for each year. The words during which the committee could not meet as on 31st December of each year, will have to be read together. The learned Counsel for the applicant has argued that the words as on 31st December of each year would clarify that the select list shall be prepared separately for each year. We are afraid, such an interpretation is not correct, since the main Regulation has already laid down the procedure for determining the vacancies for any year i.e., substantive vacancies as on 1st January of that year. The proviso clause would not again touch upon the question of determining the vacancies once again. What all the 2nd proviso says is only that there shall be no clubbing and the select list shall be prepared separately each year during which the committee did not meet. To be abundantly clear, perhaps, the words as of 31st December of each year, has been placed in the proviso to make it beyond any doubt, in our opinion. In view of the above, since the Government of India has already determined the vacancies for preparation of the select list for the year 2003 as four vide letter dated 15.1.2003 which they have done in pursuance of the Regulation 5(1), the number of vacancies for 2003 is only four. The applicant's plea that the vacancies that arose during the year 2003 should be added to this and taken together as the vacancies for the year 2003 is not acceptable for the reasons mentioned above. Similarly, the Government of India, vide letter dated 5.11.2003 have determined the vacancies for the year 2004 as seven in terms of the Regulation 5(1) above i.e., four vacancies which have arisen due to increase in promotion quota from 59 to 63 and three vacancies due to the retirement of promotee officers during the year 2003. In the light of the above, we answer the point (a) in para 18 above in affirmative. None of the case laws cited by the applicant would come to his rescue. On the other hand, the case law cited by the respondents in the case of Vijay Singh Charak (supra) would apply to the present case. In the said case, their Lordships have held vide para 11 that there cannot be clubbing of the vacancies several years and there cannot be common select list for these years. Their observations in para 12 also are relevant wherein it has been observed as follows:
A select list can only be prepared for a particular year and only those who are eligible in that particular year alone can be considered for selection in the select list. Even if the select list is not prepared in that year, it will relate back to that particular year.
33. Following the observations of the Supreme Court as above, we find that had the select committee met in the year 2003 and 2004 as per schedule, the number of vacancies would have been four and even the seven vacancies as now determined by the respondents, in which case also, the applicant would not have been within the zone of consideration. As pointed out by the 3rd respondent, the Hon'ble Supreme Court had issued an interim injunction in this case directing not to hold any select committee for the years 2003 and 2004.
The only dispute that came before the Hon'ble Supreme Court was resolved with reference to the year 2002 and ultimately with the leave of the Court, the Committee eventually met in 2005. Thus, applying the ratio of the decision in the above said case also, the select list has to relate back to the year in which the Committee ought to have met viz., 2004, in which case the vacancies as on 1st January 2003 alone could be taken and not the vacancies that arose during the year 2003. In the light of the above, the contention of he applicant in this regard has to be rejected.
34. As regards the point No. 2, the applicant has argued that the Regulation 5(3) of the Indian Police Service (Appointment by Promotion) Regulations, 1955 has placed an embargo on attaining the age of 54 years as on 1st January thus shutting down the consideration of the applicant for promotion which is a fundamental right since this Regulation was introduced by way of an amendment when the age of superannuation of All India Service employees was 58 years and now that it has been increased to 60 years, it has got no nexus and hence it has to be declared illegal. Since the feeder category is the State Government employees, fixing an embargo on the age of 54 years does not explain the nexus it seeks to achieve. Accordingly, the learned Counsel for the applicant has argued that the above provision violates Articles 14, 16 and 21 of the Constitution of India and bad in law and should be set aside.
35. Here also, we are afraid, we cannot endorse the view of the learned Counsel for the applicant. As pointed out by the learned Counsel for the Respondent No. 10, this matter is no longer res integra as the matter has been decided by the Hon'ble Supreme Court in the case of Government of India v. G. Limbadri Rao and Ors. (supra) in Civil Appeal 6234 of 2004 delivered on 22.9.2004. The matter had arisen out of SLP(C) No. 11708 of 2002. The Hon'ble Court observed that the short question that fell for consideration was as to whether the respondents have committed any illegality in considering the case of the first respondent for non-inclusion in the proposals to be sent to the Union Public Service Commission for preparation of the select list of Non-State Civil Services officers for the year 2002 for appointment to the IAS on the ground that the 1st respondent had attained the age of 54 years as on 1.1.2002. Referring to the proviso to Regulation 4 which states that the State Government would not consider the case of a person who has attained the age of 54 years on the 1st January of the year in which a decision is taken to propose the names for the consideration of the committee, the Hon'ble Supreme Court set aside the order of the Hon'ble High Court allowing the respondent to consider even though he had crossed the age of 54 years and set-aside the impugned judgment passed by the Hon'ble High Court of Andhra Pradesh. In view of the above, we do not find any thing wrong in the Regulation 5(3) of the said Regulations which stipulates that the committee shall not consider the case of a Member of the State Police Service who has attained the age of 54 years as on 1st January of the year for which the select list is prepared. The contention of the applicant in this regard, is therefore, rejected. We accordingly answer the point (b) in para 18 above in negative.
36. In the light of the above discussions, the OA fails and has to be dismissed. The OA is accordingly dismissed. There shall be no order as to costs.