Central Administrative Tribunal - Delhi
Uma Kant Choubey vs The Union Of India on 24 August, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA-170/2013 MA-1350/2013 OA-171/2013 OA-172/2013 OA-173/2013 OA-174/2013 MA-1352/2013 OA-175/2013 MA-1344/2013 OA-176/2013 MA-1346/2013 & OA-178/2013 MA-1351/2013 Order Reserved on 10.04.2015 Order Pronounced on: 24.08.2015 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. Raj Vir Sharma, Member (J) OA-170/2013 Uma Kant Choubey, S/o Late Damodar Choubey, R/o House No.175/B, S.K. Puri, P.O. + P.S.- S.K. Puri, Patna-1 Distt.- Patna, Bihar, At present posted as A.D.M. Department Enquiry, Rohtas at Sasaram, Bihar. -Applicant Versus 1. The Union of India, through The Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 2. The Under Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 3. The Union Public Service Commission through Its Secretary, Dhoulpur House, Shahjahan Road, New Delhi. 4. The Chairman, Union Public Service Commission, Dhoulpur House, Shahjahan Road, New Delhi. 5. The State of Bihar through its Principal Secretary, Department of General Administrative Department, Govt. of Bihar, Old Secretariate, Patna, Bihar. 6. The Chief Secretary, Govt. of Bihar, having office at Old Secretariate, Patna. 7. Shri Nagendra Pathak through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 8. Shri Pratap Naryan Singh through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 9. Shri Umesh Kumar Verma through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 10. Shri Ashok Priyadarsi, through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 11. Shamim Ahmed Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 12. Ramesh Mishra Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 13. Mushtaq Hafizur Rahman Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 14. Sita Choudhary Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 15. Uday Kumar Singh Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. -Respondents OA-171/2013 Uma Shankar Prasad S/o Late Kali Prasad, Resident of Village + P.O. Purnahia, P.S.-Ghorasahan, Distt.- East Champaran at present Posted as Deputy Development Commissioner, Vaishali, Distt.-Vaishali, Bihar. -Applicant Versus 1. Union of India, through The Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 2. The Under Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 3. UPSC Through its Secretary, Dholpur House, Shahjahan Road, New Delhi. 4. The Chairman, UPSC Dholpur House, Shahjahan Road, New Delhi. 5. The State of Bihar Through the Principal Secretary, Department of General Administrative Department, Govt. of Bihar, Old Secretariate, Patna, Bihar. 6. The Chief Secretary, Govt. of Bihar, Old Secretariate, Patna, Bihar. 7. Nagendra Pathak Through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 8. Pratap Narayan Singh Through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 9. Umesh Kumar Verma Through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 10. Ashok Priyadarsi Through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 11. Shamim Ahmed Through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 12. Ramesh Mishra Through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 13. Mushtaq Hafizur Rahman Through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 14. Sita Choudhary Through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 15. Uday Kumar Singh Through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. -Respondents OA-172/2013 Anil Kumar, S/o Late Shyam Bihari Singh, Resident of Mohalla-104/A, Sagast Apartment, Magistrate Colony Road, P.O.-B.V. College, Patna-800014, at present posted As Additional Collector, Patna. -Applicant Versus 1. The Union of India, through The Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 2. The Under Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 3. The Union Public Service Commission through its Secretary, Dhoulpur House, Shahjahan Road, New Delhi. 4. The Chairman, Union Public Service Commission, Dhoulpur House, Shahjahan Road, New Delhi. 5. The State of Bihar through its Principal Secretary, Department of General Administration, Govt. of Bihar, Old Secretariate, Patna, Bihar. 6. The Chief Secretary, Govt. of Bihar, having office at Old Secretariate, Patna. 7. Shri Nagendra Pathak through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 8. Shri Pratap Naryan Singh through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 9. Shri Umesh Kumar Verma through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 10. Shri Ashok Priyadarsi, through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 11. Shamim Ahmed Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 12. Ramesh Mishra Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 13. Mushtaq Hafizur Rahman Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 14. Sita Choudhary Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 15. Uday Kumar Singh Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. -Respondents OA-173/2013 Om Prakash Rai, S/o Late R.P. Rai, resident of village + P.O.-Birpur, P.S.- Bhawarkoi, Distt.- Gazipur, (U.P.), At present posted as Deputy Development Commissioner, Madhubani, Distt.-Madhubani, Bihar. -Applicant Versus 1. The Union of India, through The Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 2. The Under Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 3. The Union Public Service Commission through its Secretary, Dhoulpur House, Shahjahan Road, New Delhi. 4. The Chairman, Union Public Service Commission, Dhoulpur House, Shahjahan Road, New Delhi. 5. The State of Bihar through its Principal Secretary, Department of General Administration, Govt. of Bihar, Old Secretariate, Patna, Bihar. 6. The Chief Secretary, Govt. of Bihar, having office at Old Secretariate, Patna. 7. Shri Nagendra Pathak through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 8. Shri Pratap Naryan Singh through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 9. Shri Umesh Kumar Verma through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 10. Shri Ashok Priyadarsi, through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 11. Shamim Ahmed Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 12. Ramesh Mishra Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 13. Mushtaq Hafizur Rahman Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 14. Sita Choudhary Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 15. Uday Kumar Singh Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. -Respondents OA-174/2013 Parsuram Ram, S/o Late Chhotan Das, resident of Village-Manjhaul, P.S. Cheria Bariarpur, Distt.- Begusarai, Bihar, at present posted as Secretary, Bihar State Housing Board, Bihar. -Applicant Versus 1. The Union of India, through The Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 2. The Under Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 3. The Union Public Service Commission through its Secretary, Dhoulpur House, Shahjahan Road, New Delhi. 4. The Chairman, Union Public Service Commission, Dhoulpur House, Shahjahan Road, New Delhi. 5. The State of Bihar through its Principal Secretary, Department of General Administration, Govt. of Bihar, Old Secretariate, Patna, Bihar. 6. The Chief Secretary, Govt. of Bihar, having office at Old Secretariate, Patna. 7. Shri Gopal Prasad Singh, through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 8. Shri Nagendra Pathak through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 9. Shri Pratap Naryan Singh through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 10. Shri Umesh Kumar Verma through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 11. Shri Shailender Kumar Pandey through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 12. Mohd Hasnain Khan through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 13. Shri Ashok Priyadarsi, through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. -Respondents OA-175/2013 Hem Chandra Prasad S/o Sri Ram Krishna Prasad resident of village-P.O.-Meghouna, P.A.-Alauli, Distt.- Khagaria, Bihar, at present posted as Administrator Bihar State Co-Operative Development Corporation Limited, Manyalin Bhavan Budha Colony, Patna-01, Bihar. -Applicant Versus 1. Union of India, through the Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 2. The Under Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 3. Union Public Service Commission through its Secretary, Dhoulpur House, Shahjahan Road, New Delhi. 4. The Chairman, Union Public Service Commission, through its Secretary, Dhoulpur House, Shahjahan Road, New Delhi. 5. The State of Bihar Through the Principal Secretary, Department of General Administration, Old Secretariate, Bihar, having Office at Old Secretariat, Patna. 6. The Chief Secretary, Govt. of Bihar, Department of General Administration, Old Secretariate, Bihar, Patna, Bihar. 7. Shri Gopal Prasad Singh, through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 8. Shri Nagendra Pathak through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 9. Shri Pratap Naryan Singh through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 10. Shri Umesh Kumar Verma through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 11. Shri Shailender Kumar Pandey through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 12. Mohd Hasnain Khan through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 13. Shri Ashok Priyadarsi, through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. -Respondents OA-176/2013 Shashi Bhushan Tiwary, S/o Sri B.P. Tiwary, Resident of Mohalla-Mednimal (Katra), P.O.- Hajipur, P.S.- Hajipur, Distt.- Vaishali, at present posted As Deputy Development Commissioner, East Champaran (Motihari), Distt.-Motihari. -Applicant Versus 1. The Union of India, through the Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 2. The Under Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 3. The Union Public Service Commission through its Secretary, Dhoulpur House, Shahjahan Road, New Delhi. 4. The Chairman, Union Public Service Commission, through its Secretary, Dhoulpur House, Shahjahan Road, New Delhi. 5. The State of Bihar through its Principal Secretary, Department of General Administrative Department, Govt. of Bihar, Old Secretariate, Bihar, Patna, Bihar. 6. The Chief Secretary, Govt. of Bihar, Old Secretariat, Patna, Bihar. 7. Nagendra Pathak Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 8. Pratap Narayan Singh Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 9. Umesh Kumar Verma Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 10. Ashok Priyadarsi Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 11. Shamim Ahmed Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 12. Ramesh Mishra Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 13. Mushtaq Hafizur Rahman Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 14. Sita Chaudhary Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 15. Uday Kumar Singh Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. -Respondents OA-178/2013 Amarnath Mishra, S/o Late Ganesh Datt Mishra, Resident of Nawal Ganj, Mainpur-P.O.-Mangalwas, P.A.- Bhargama, Distt.- Araria, Bihar, at present Posted as Additional Collector Department Enquiry, Muzaffarpur, Distt.- Muzafarpur, Bihar. -Applicant Versus 1. Union of India, through the Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 2. Under Secretary, Govt. of India, Ministry of Personnel, Public Grievance & Pension, Department of Personnel and Training, North Block, New Delhi. 3. Union Public Service Commission through its Secretary, Dhoulpur House, Shahjahan Road, New Delhi. 4. Chairman, Union Public Service Commission, Dhoulpur House, Shahjahan Road, New Delhi. 5. State of Bihar through its Principal Secretary, Department of General Administrative Department, Govt. of Bihar, Old Secretariate, Patna, Bihar. 6. Chief Secretary, Govt. of Bihar, having office at Old Secretariate, Patna. 7. Shri Nagendra Pathak through the Department of General Administration Govt. of Bihar, Old Secretariat, Patna, Bihar. 8. Shri Pratap Naryan Singh through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 9. Shri Umesh Kumar Verma through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 10. Shri Ashok Priyadarsi, through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 11. Shamim Ahmed Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 12. Ramesh Mishra Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 13. Mushtaq Hafizur Rahman Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 14. Sita Choudhary Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. 15. Uday Kumar Singh Through the Department of General Administration, Govt. of Bihar, Old Secretariat, Patna, Bihar. -Respondents (By Advocate: Shri A.K.Mishra, for applicants Shri R.N. Singh, Shri S.K. Shandilya & Shri Rajinder Nischal, for respondents) O R D E R Per Sudhir Kumar Member (A):
These 8 cases were heard together, and reserved for orders together, and are being disposed of through a common order. The arguments on these eight O.As. themselves were divided in portions, and clubbed, based upon the similarity of their cases. The first case was argued in OA No.176/2013, while the second case in OA No.175/2013 was argued in respect of a person, who had retired in the interregnum on 31.01.2014. Since similarity and parallelism of arguments was overlapping in the case of these eight O.As., we would present and try to appreciate the arguments as they had been unfolded before us.
2. All the applicants of these eight OAs were officers of the Bihar State Civil Services (SCS, in short), and were candidates for appointment to the Indian Administrative Service (IAS, in short) under Regulation-3 of the IAS (Appointment by Promotion) Regulations, 1955, or Members of the Non-State Civil Services (Non-SCS, in short) eligible for appointment to the IAS under the IAS (Appointment by Selection) Regulations, 1997. It was submitted that the State Government concerned is competent to propose, within the overall ceiling of 15% of the total promotion quota of the IAS Cadre of that State, determination of vacancies for a particular year under Non-SCS quota also, if there are officers of outstanding merit and ability, having rendered 8 years service in a gazetted post equivalent to a Deputy Collector. For the sake of convenience, the facts may be taken mainly from the aforesaid two lead cases.
OA No.176/20133. The applicant in this case had succeeded in the 29th Combined Competition Examination conducted by the Bihar Public Service Commission, and had joined the Bihar Administrative Service as a Deputy Collector. He first came in the consideration zone of candidates for selection to the IAS (Appointment by Selection) Rules, to the IAS Bihar cadre during the year 2010. The Selection Committee Meeting for the year 2010 was held by UPSC on 31.07.2012. He has claimed that even though the Selection Committee Meeting had graded him as Very Good, which was as per the Bench mark for the selection/promotion to IAS, but due to non-availability of sufficient vacancies, his name was not included in the final Notification of appointments to IAS as issued by the DoP&T. He is aggrieved by the computation of availability of vacancies, because of which his name was left out.
4. The applicant has pointed out that a discrepancy in the total number of vacancies as determined by the DoP&T, and the number of persons finally appointed to the IAS, started from the selection year 2008. He has submitted that the vacancies determined by the DoP&T for the year 2008 in Bihar cadre of IAS were 29 (27 for SCS and 02 for Non-SCS Officers), but through Notification dated 02.11.2012 issued thereafter, only 22 names were notified for appointments to the IAS of Bihar cadre, and 07 other selectees had been recommended by the UPSC as provisional, due to the pendency of criminal, and/or departmental proceedings against them as on the date of the meeting on 31.07.2012 of the Selection Committee. Similarly, the applicant has pointed out that for the selection year 2009 also, 14 vacancies (all for SCS Officers, none for Non-SCS Officers) had been determined in the Bihar Cadre of IAS, but against those 14 vacancies also, only 13 candidates could be finally selected and appointed, and one person was only provisionally recommended, due to the pendency of criminal; and/or departmental proceedings against him, and, consequently, withholdment of Integrity Certificate in his case. In the selection year 2010, the DoP&T notified only seven vacancies (five for SCS Officers and two vacancies for Non-SCS Officers), and only three candidates could be finally appointed, and four could be recommended provisionally, due to pendency of criminal and/or departmental proceedings against them, and consequently withholdment of Integrity Certificate. The grievance of the applicant arises from the fact that seven vacancies, which had remained unfilled for the vacancy year 2008, and one vacancy, which had remained unfilled for the year 2009, and four vacancies, which had remained unfilled for the year 2010, would have been much more than sufficient, if the applicants name had just been left to be included in the final promotional list in respect of the year 2010.
5. The applicant has, however, himself pointed out that this Tribunal had, in the case of Hemraj Singh Chauhan & Ors. vs. Union of India & Ors. in the order dated 15.12.2006 in OA No.1097/2006 with OA No.1137/2006, later affirmed by the Honble Delhi High Court in W.P. (C) No.1106/2008, in the pronouncement on 05.02.2009, clearly stipulated and forbidden any carry forward of seats from one assessment/select list year to the next assessment/select list year, or reserving of seats due to withholdment of the Integrity Certificate in respect of a few candidates for the year, or for the reason of retirement or death before the final Notification, and the Tribunal had observed as follows:-
If certain individuals were selected in a particular year but, on account of non-availability of integrity certificate etc. their names had to be carried forwarded in terms of second provision of Regulation 5 (3) of the promotion Regulation, it is the names of the persons so selected that will be so carried forward and not the vacancies against which they were selected.
6. Thus, in Para 4.9 of the OA, the applicant accepted that the aforesaid judgment clearly and unambiguously directs that in no case any vacancy of any assessment/select list year would be carried forward to the next assessment/select list year, or reserved for any candidates in that later year, either in the case of unfilled vacancy of non-SCS Officers for the purpose of IAS (Appointment by Selection) Regulations, or in the case of provisional recommendation of a State Civil Service officer, for want of Integrity Certificate, or withholdment of promotion on any other ground.
7. It was submitted by the applicant that that judgment of this Tribunal in Hemraj Singh Chauhan (supra), as affirmed by the Honble Delhi High Court, has already been implemented by the UPSC and DoP&T in the case of State of Uttar Pradesh, and the respective vacancies which had been kept reserved for want of Integrity Certificate by the State Govt., and also the one vacancy which had remained unfilled due to the death of one candidate, were ordered to be filled by conducting a Review Selection Committee Meeting for the same year by the UPSC. The applicant is aggrieved that both the Bihar State Govt., as well as the DoP&T of the Union Government, did not work out the vacancies correctly for Non-SCS Officers for the year 2008 and 2010, and nor these unfilled vacancies were transferred for promotion through SCS quota for the relevant year 2010, in accordance with the Rules, which provide for such transfer.
8. The applicant has submitted that in this whole process, Non-SCS vacancies for the year 2010 had been carried forward, which is against the pronouncements of the law by the Honble Apex Court in various cases, as well as different Benches of this Tribunal, and in the case of Hemraj Singh Chauhan & Ors (supra), in order dated 15.12.2006, as discussed above. It was submitted that since in the aforesaid judgment of this Tribunal it has been laid down that in no case can, therefore, be carried forward of any vacancies, the respondent-authorities were duty bound to give the promotions in respect of all the vacancies of the relevant assessment/select list years from among the officers within the zone of consideration, even if by convening a review DPC for transferring the vacancies for the relevant years from Non-SCS category to SCS category, as no appointments in the Non-SCS categories were being made.
9. It was pointed out that the DoP&T had, in compliance of the order of this Tribunal in the case of Parsuram Mishra vs. Union of India and Others in 2009, transferred two unfilled Non-SCS category vacancies for the vacancy year 2008, but, in a most unusual manner, declined to transfer the Non-SCS category unfilled vacancies of Bihar 2010 to the quota of SCS category Officers of Bihar, to create the vacancies of 2010 in the latter category.
10. It was, therefore, submitted that a Review Selection Committee Meeting/DPC may be ordered to be held for Bihar for the assessment/select list year 2010, so that the process of promotion to the IAS should go on as per Rules, without any carry forward of vacancies to the following year, which would automatically happen in case the provisionally recommended officers are not granted Integrity Certificate by the State Govt. before the end of the Calendar Year, or in the case of those selectees against whom some criminal or disciplinary proceedings are going on, or those who have retired before the final Notification.
11. The applicant is aggrieved that he has been subjected to assessment by the Selection Committee Meeting in an illegal and arbitrary manner, because of which he has been denied appointment/promotion to the cadre of IAS in a wrongful manner, which has caused him severe agony and mental torture.
13. The applicant has, therefore, sought relief on the ground that denial of appointment to him in respect of the assessment/select list for the year 2010 is illegal and arbitrary, in spite of his having been graded as Very Good, and that the respondents could not have differentiated this case from a case of Hemraj Singh Chauhan & Ors. (supra), this Tribunals order dated 15.12.2006, in which they had been directed to hold Review Selection Committee Meeting for the years 2001, 2002 and 2004, and because of the ground that by denying the benefit to the applicant, the respondents are in-effect carrying forward the vacancies in respect of the 12 seats, for which the candidates had been provisionally recommended, which the respondents cannot do as per the settled preposition of law.
13. In the result, the applicant had prayed for the following reliefs:-
(A) That non inclusion of name of the applicant in the select list of 2010 for promotion to the Indian Administrative Service, by the Selection Committee, may be declared null and void.
(B) Letter No. 14015/4/2011-ais (1)-b Dt. 2nd November, 2012, issued under the signature of the under Secretary to this Govt. of India Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training), New Delhi as contained in annexure A/2 whereby notification of appointment of 3 persons of State Civil Service of Bihar to India Administration Service, has been issued against the vacancies of the year 2010, may be quashed and set aside, so far the same relates to promotion of the applicant.
(C) It is respectfully prayed that a review SCM/DPC may kindly ordered to be held for the year 2010 in view of the aforesaid authoritative pronouncement of the Principal Bench CAT, New Delhi, so that the process of promotion should go on as per rules without any carry forward to the following year, in the cases of provisional recommendations of the officers for whom the State Govt. has not granted integrity certificate or against who some criminal proceedings are going on or, so that the applicant may be selected/promoted to the cadre of Indian Administrative Service w.e.f. his date of eligibility, with all consequential benefits.
(D) Issuance of an appropriate order to the respondent authorities since the formal exercise for selection of non SCS Officer into Indian Administrative Service of the year 2010 have not been done and as such it is bound to be unfilled, the same should be transferred to the share of SCS Officers of the same year of consideration and respective promotion should be made from among the eligible officers who are already in the list of the zone of consideration of the respective year vacancy.
(E) The cost of litigation may be awarded upon the respondents since the applicant has been compelled to file the instant O.A. (F) Any other relief/ reliefs as the applicant may be found entitled as your lordships may deem fit and proper in the ends of justice.
14. In support of his contentions, the applicant had filed copies of the Confidential Minutes of the Meeting of the Selection Committee held on 31.07.2012, for preparation of Select Lists of the years 2008, 2009 and 2010, against the vacancies of those years, as Annexure-I. During arguments, it was pointed out that in the list of 29 names in the Select List for the year 2008 of officers recommended, in Para 5.3 of the said Minutes, though the Sl Nos. 1,2 & 4 had been included provisionally in the Select List, subject to clearance in the criminal case pending against them, and grant of Integrity Certificate which has to be issued by the State Govt., Sl. No.03 had been included provisionally, subject to clearance in the departmental proceedings then pending against him, and thereafter grant of Integrity Certificate by the State Govt., and a decision on the adverse remarks in his ACRs, and Sl. Nos. 05, 21 & 23 had been included provisionally in the Select List subject to clearance in the departmental proceedings pending against them, and thereafter grant of Integrity Certificate by the State Govt. Similarly, from Para 6.3 of the said Minutes it was shown that in respect of Select List of the year 2009, while placing the 14 short-listed persons in the Select List, names of 04 officers had been placed above the 14 selectees, at Serial Nos. 0A, 0B, 0C & 0D, as per the second proviso to Regulation 5(5) of the IAS (Appointment by Promotion) Regulations, 1955, and, apart from that, a candidate at Sl. No. 03 had been included provisionally in the Select List, subject to grant of Integrity Certificate by the State Government. Similarly from Para-7.3 of the said Minutes it was shown that before the 07 names recommended for the Select List Year 2010 from 01 to 07, 05 names had been included from Serial Nos. 0A to 0E, as per the second proviso to Regulation 5(5) of the IAS (Appointment by Promotion) Regulations, 1955. Apart from that, even in that list of 07 recommended candidates, remarks were there against the incumbents at Sl Nos. 0D, 01,02,03 & 05, who had been included in that Select List as provisionally selected, subject to clearance in the disciplinary proceedings pending against them, and grant of Integrity Certificate by the State Government.
15. Annexures-I, II & III of the UPSC file, as produced along with the O.A., contained the list of 90 officers considered for the Select List year 2008, 48 officers considered for the Select List year 2009, and 26 officers considered for the Select List year 2010. Annexure-2 was the appointment Notification in respect of Select List candidates against vacancies for 22 persons against the Select List of 2008, and 13 persons against the Select List of 2009, and 03 persons against the Select List of 2010. At Annexure-3 the applicant had produced a copy of the order dated 15.12.2006 of this Tribunal in OA No.1097/2006 with OA No.1137/2006 Hemraj Singh Chauhan & Ors. (supra). At Annexure-4, the applicant had produced a copy of the order of the Honble Delhi High Court dated 05.02.2009 in WP (C) No.1106/2008 Union of India through the Secretary Ministry of Personnel, Public Grievances & Pensions, Department of Personal & Training vs. State of U.P. through Chief Secretary Govt. of U.P. & Ors. in which the Tribunals order in the above O.As [(Hemraj Singh Chauhan & Ors (supra)] had been upheld.
16. Annexure-5 was the letter dated 23.07.2009 issued by DoP&T to the Chief Secretary, Govt. of Uttar Pradesh, Lucknow, giving effect to these two judgments, of this Tribunal, and of Honble Delhi High Court (supra), at Annexures A-3 & A-4, and re-calculating the SCS and Non- SCS vacancies for the State of U.P. from 2001 to 2005, with changes being made in the vacancies calculated for the year 2004 and 2005 only, and mentioning that the determination of vacancies was subject to the outcome of the Writ Petition No.31/2004 DoP&T and UPSC vs. Dr. Vishram Singh Yadav and others, which was at that time pending before the Lucknow Bench of the Honble Allahabad High Court. At Annexure A-6 (colly) onwards were the letters written by the applicant to the Chairman, Union Public Service Commission, the Secretary, DoP&T, and the Principal Secretary, General Administrative Department, Govt. of Bihar.
17. Reply on behalf of Respondents No. 5 & 6, the State of Bihar, was filed first on 18.04.2013. Thereafter reply on behalf of Respondents No.3 & 4 representing UPSC was filed on 28.05.2013, and finally the reply on behalf of Respondents No.1 & 2 representing the Union of India was filed on 21.08.2013.
18. Respondents No.5 & 6 representing State of Bihar had taken the preliminary objection that no permission of Honble Chairman, CAT, had been sought to file the present OA before the Principal Bench, instead of it being filed before the Patna Bench of the Tribunal, and, therefore, the OA was not maintainable, and liable to be dismissed on that ground alone.
19. It was further submitted that as per Regulation 7(4) of the IAS (Appointment by Promotion) Regulation, 1955, the select list prepared in a calendar year remains valid till the 31st day of December of that year in which the meeting was held to prepare such lists or up to 60 days from the date of approval of the Select Lists by the UPSC, whichever is later. It was further submitted that the officers whose appointment letter is withheld due to want of Integrity Certificate or otherwise, continue to remain in the Select List, till the exhaustion of the time limit prescribed under the aforesaid Regulation 7 (4), and any order passed in the present OA will directly affect them. It was, therefore, submitted that since none of those persons had been impleaded as opposite party-respondents herein, on that sole ground alone also, for non-joinder of necessary parties, the OA is liable to be rejected.
20. Thereafter the respondents had explained the whole process by which the Appointments by Promotion and Appointments by Selection are made to the IAS from among the SCS and Non-SCS officers of the State, respectively. The entire cadre strength and the number of vacancies and the calculation of vacancies were explained in Paragraphs 1.9 to 1.12 of the reply. It was pointed out that the name of the applicant was in the eligibility list, and was considered for all the three years 2008, 2009 & 2010, but the last selected person remained senior to him in the assessment list of each of these Select List Years. It was also explained that two posts of Non-SCS vacancies against the year 2010 Select Lists could not be filled up because of a Contempt Petition filed by Non-SCS officers before the Honble Patna High Court, because of which the process of selection of Non-SCS Officers to IAS could not have been completed. Explaining in detail the Regulation-7 (4) of the IAS (Appointment by Promotion) Regulation, 1955, it was submitted that the select lists for the three Select List years 2008, 2009 and 2010, prepared on 31.07.2012, were valid till 31.12.2012, and no officer outside the three Select Lists could have been promoted against the vacancies for which the Selection Committee Meeting was convened during the validity period of these Select Lists till 31.12.2012.
21. It was submitted that after 31.12.2012, the previous Select Lists ceased to be in existence. However, the names of the officers provisionally selected in the previous Select Lists had to be carried forward, and considered for inclusion in the fresh list prepared by the Selection Committee for the subsequent year, even if they had crossed the prescribed maximum age limit of 54 years in the meanwhile, after their inclusion in the earlier select list(s).
22. It was further submitted by the Respondents representing Bihar Government that the provisionally selected officers remained in the Select List till 31.12.2012, the last day of the calendar year in which the Select Lists were prepared, and thus the vacancies against which they were selected, but could not be appointed, remained unfilled on the 1st day of January of the next year, and, in that sense automatically the vacancies also got carried forward. Therefore, they had denied the contention of the applicant that only the names of the Select List short listed persons can get carried forward to the next year, but not the unfilled vacancies, as not tenable.
23. It was further submitted that the prayer of the applicant for a Review Selection Committee Meeting to be held for the year 2010 was not in accordance with Regulation 7 (4) of the IAS (Appointment by Promotion) Regulation, 1955, which has not been struck down, or affected, by any of the judgments relied upon by the applicant. It was further submitted that the answering respondent-State of Bihar was not a party to the aforementioned OA No.1137/2006 Hemraj Singh Chauhan & Ors (supra) decided by this Tribunal, and, therefore, a question of non-compliance of the order in that O.A. by the answering respondent-State of Bihar, does not arise.
24. It was further submitted that though the Select Lists validity expired on 31.12.2012, and those Select Lists are not in existence, however, the names of the officers provisionally included in the previous Select Lists were automatically carried forward, and considered for inclusion in the fresh Select List to be prepared by the Selection Committee Meeting held in the subsequent year, even if they had crossed the prescribed maximum age limit of 54 years in the meanwhile.
25. In the particular case relevant to the applicant, it was submitted that in the Select List year 2010, since 07 vacancies were to be filled up, names of the senior most 21 officers were included in the final Assessment List for the Select List year 2010, in which the applicant stood at Sl. No.13. However, in the finalized Select List of 2010, the last person included was the officer who was at Sl. No.12 in the Assessment List, and was above the applicant at the time of the assessment. In view of this, any wrong doing on the part of the answering respondents was denied, and non-inclusion of Non-SCS officers was explained once again due to pendency of Contempt Petition before the Honble Patna High Court. They had thereafter given the details of the assessment lists of the three years 2008, 2009 & 2010, and the finalized Select Lists for those three years, in all of which the name of the applicant was below the last selected person. Therefore, it was submitted that the applicant is not entitled to any relief, and the OA deserves to be dismissed with costs.
26. Thereafter, the applicant filed MA No.1346/2013, praying for impleadment of 09 private respondents whose names were under consideration for promotion to the IAS at the time of preparation of Select List of 2010, but who could not be so promoted because the Integrity Certificate was not granted by the State Government. On 04.07.2013, the learned counsel for the applicant submitted that he would be pressing that MA only after the replies to the same are received from the official respondents, and, in saying so, he relied upon an order passed by the Tribunal on 21.01.2013 in OA No.81/2012 with OA No.84/2012. Later on, on 29.08.2013 that MA was allowed, for impleading the private respondents, subject to the condition that the applicants shall serve dasti notices upon the newly named private respondents, and permission was granted to file an amended Memo of Parties accordingly. It is seen that none of these private respondents filed any reply.
27. Respondents No. 3 & 4 filed their reply on 28.05.2013. These respondents, representing UPSC, explained the procedure for conducting the meeting of the Selection Committee as per the Regulations (supra), leading to the preparation of the Select Lists. Thereafter the process as adopted by the Selection Committee Meeting held on 31.07.2012 for preparation of year-wise Select Lists against the IAS vacancies of Bihar Cadre in respect of the years 2008, 2009 and 2010 was explained. It was further submitted that even though the Selection Committee had, after examination of his service records assessed the applicant as Very Good, but his name could not be included in the Select List, as officers with the same gradings and senior to him in the SCS cadre were available for inclusion, and the applicant got excluded due to the statutory limit on the size of the Select List. Thereafter they had explained the circumstances in which, in view of the specific orders of this Tribunal dated 15.12.2006 in OA No. 1137/2006 (supra), and the orders of Honble Delhi High Court dated 05.02.2009 in WP (C) No.1106/2008, in the case of Hemraj Singh Chauhan & ors. (supra), the Review Selection Committee had met on 30.10.2009 to review the Select Lists of the year 2001, 2002 and 2004 for promotion to IAS of Uttar Pradesh Cadre. But the Respondents No. 3 & 4 had also reiterated that since the name of the present applicant had to be excluded only because officers with the same grading, and senior to him in SCS cadre, were available for inclusion in the Select List, and, therefore, there was no merit in the OA, and the OA deserves to be dismissed.
28. Respondents 1&2 filed their reply on 21.08.2013, again explaining the legal position as per the Regulations already mentioned above. It was submitted that the Select List prepared by the Selection Committee is forwarded by the State Government to the UPSC along with its own observations on the recommendations of the Selection Committee. In parallel, the observations of the Central Government are also forwarded to the UPSC thereon, and after considering the observations of both the State Government and the Central Government, the UPSC conveyed its final approval of the Select List to the Central Government, for consideration of the incumbents concerned for appointment to the IAS. It was submitted that such appointments orders are then issued after the receipt from the officers included in the Select List of their unconditional willingness for appointment to the IAS, accompanied with a declaration of their marital status, and also consent for termination of their legal lien in the State Civil Service in the event of such substantive appointment to the IAS.
29. In respect of the specific reliefs claimed by the applicant, his contention that if the vacancies of Select List remained unfilled because of non-appointment of provisionally included officers in the Select Lists, they should have been filled up in the respective years itself by appointing officers like the applicant, who were down below in the zone of consideration, was denied. It was submitted that if the contention of the applicant is accepted hypothetically also, the vacancies which were reserved for such provisionally included officers in the concerned Select List would get consumed with the appointment of fresh officers below them, and those vacancies would then not be available for consideration in the next years Select List, and, in this position, if in the next year enough number of vacancies are not available, the right of such officers whose names were earlier provisionally recommended, and whose names have to be carried forward to the next years Select List also, would get extinguished, and such officers would keep on getting clustered at the top of the list of State Civil Service Officers of Bihar. It was further submitted that the selections to IAS from the Select List of 2010 could not be quashed, without making such provisionally selected persons as respondents. It may be noted here that the MA concerned, for making the provisionally selected persons as parties was allowed only on 29.08.2013, after filing of this counter reply on behalf of Respondents No.1&2.
30. After explaining the Rule position in this regard, by citing the relevant Rules and Regulations, it was submitted that the present scheme of the Rules and Regulations provides for a harmonious arrangement, so that if the provisionally included officers in a particular Select List are not appointed within the validity period of the same Select List, their names, along with the vacancies earmarked for them in the previous year, are both carried forwarded to the next year, so as to take care of the eventuality of their appointment against the same vacancies, in case, in the meantime, they get exonerated in the disciplinary/criminal proceedings pending against them, and are found suitable for appointment to the IAS by the UPSC. It was submitted that this has been expressly provided by the provisions as contained in the first proviso below Regulation 5 (3) of IAS (Appointment by Promotion) Regulations, 1955, through which the right for consideration of such provisionally selected officers has been protected, even if in the meantime the concerned officers may have crossed the prescribed upper age limit of 54 years, and may have become ineligible for consideration per se in the subsequent years Select List.
31. It was further explained that even if an exercise in terms of the orders of this Tribunal in the case of Hemraj Singh Chauhan & Ors. (supra), since upheld by the Honble Delhi High Court, was to be undertaken/held, the exercise of a review of the Select List of 2010 would still not result in the exclusion of the names of any of the officers who had been included in the concerned Select List provisionally. The respondents No. 1&2 had cited the interpretation of the aforesaid Promotion & Selection Regulations by the Honble Punjab and Haryana High Court, and the Honble Apex Court, in the matter of Shri Parveen Kumar in this context, in support of their contention (citation not supplied). It was submitted that according to the law as laid down in Parveen Kumars case, even today if a review Selection Committee Meeting is convened, the officers who had been included in the respective Select List provisionally will have to be again considered as per their service records, as they existed on the earlier date, and by virtue of those service records, they would again be selected provisionally in the Select List, subject to those very conditions as have already been mentioned in the Minutes of the Selection Committee Meeting. It was, therefore, submitted that the contention of the applicant that he would then have a chance to be included in the Select List, and consequently get appointment to IAS, was misplaced, and, therefore, it was prayed that the OA is devoid of merit, and deserves to be dismissed.
OA-175/2013
32. This case was also argued as a lead case. In this case also the applicant had filed MA No.1344/2013 for impleading the private respondents R-7 to R-13, which MA been allowed through a common order on 29.08.2013. The applicant of this OA also belongs to the Bihar Administrative Service, and in the same Selection Committee Meeting held on 31.07.2012 for the year 2008, he had been graded as Very Good, which was the benchmark for selection. His grievance had arisen when out of the 29 candidates included in the Select List, the final Notification was issued in respect of 22 persons, for their appointment to IAS cadre, while 07 incumbents had been recommended as provisionally selected, due to pendency of criminal as well as departmental proceedings against them. This OA was drafted almost similar to the earlier OA No.176/2013, but the difference in this case was that by the time the case was argued, and reserved for orders, the applicant of this OA had retired from service. Annexures in this OA were also similar, as has already been discussed above while discussing OA No.176/2013, and he had also represented to the Secretary, DoP&T, the Principal Secretary, General Administrative Department, Govt. of Bihar, and to the Chairman, UPSC, regarding his having been left out from selection for promotion in the Select List of the year 2008.
33. The reply in this OA was filed by the respondents 5&6 representing the State of Bihar on 18.04.2013, in which the similar submissions as already discussed above in the case of the earlier OA had been made, which need not be reproduced again, and it was prayed that his OA is not maintainable and deserves to be dismissed. Respondents No.3&4 filed their reply on 24.05.2013, representing the UPSC, in which also the submissions made by the respondents were the same/on similar lines, and need not be reproduced again. The reply affidavit on behalf of Union of India R-1 & R-2 was filed on 24.07.2013, in which also once again similar averments had been made, as in the above OA No176/2013, already discussed above. In this case also it was submitted that even if a Review Selection Committee Meeting is now directed to be held, the position in respect of the applicant would not change and his name would still not be included in the Select List, and OA is, therefore, devoid of merit and deserves to be dismissed.
34. In this case the applicant filed rejoinders separately to the replies filed by the official respondents-R-3, R-4, by R-5 & R-6, and R-1&R-2 on 16.08.2013, 24.10.2013 and 31.10.2013.
35. In the rejoinder to the reply filed by Respondents No. 3 & 4, the applicant reiterated his contention that out of 29 vacancies, only 22 vacancies were filled up, and 07 vacancies remained vacant because the provisionally selected persons in the Select List of 2008 did not get requisite clearances, his name should have been included in the final promotion list, going beyond the appointment order issued on 02.11.2012 in respect of 22 persons. He reiterated that the Honble Delhi High Court had held that the vacancy of any particular year cannot be carried forward from the relevant assessment year to the next year, because of that reason the vacancies cannot also be reserved for the candidates whose Integrity Certificates are withheld, and that these vacancies should be made available to the next eligible officers in the zone of consideration before the year ends. He also submitted that if an incumbent was so placed in the order of merit so as to have been entitled to be appointed against a vacancy of that particular year, he should be appointed to the service against the vacancy of that year only, with all consequential benefits. It was submitted that since the last candidate, who was promoted to IAS from selection list of 2008, was ranked 34 in the merit list, and the applicants own rank was 38, and since 07 vacancies had remained unfilled at the end of the year, the applicant having been deprived of the benefit of the unfilled vacancies is absolutely illegal and unjustified. He had, therefore, prayed for directions upon the respondents to appoint him on the vacant posts of the Select List year 2008, with all consequential benefits.
36. In his rejoinder to the reply filed on behalf of Respondents 5&6 representing the State of Bihar, it was submitted that since the offices of all the first four respondents are in New Delhi, and the meeting of the Selection Committee was also held in New Delhi, this Principal Bench of this Tribunal has the jurisdiction to hear this OA, and that he need not have approached the Patna Bench of the Tribunal. Further, in support of his contentions, he had once again taken shelter behind the following judgments once again:-
i) Union of India & Others vs. Vipin Chandra Hira Lal Shah (1996) 6 SCC 721;
ii) Hemaraj Singh Chauhan & Ors. vs. Union of India & Others (2009) Vol. 7 AS (Delhi) 127;
iii) Hemaraj Singh Chauhan & Ors. vs. Union of India & Others (OA No.1097/2006 with OA No.1137/2006);
iv) Chandigarh Bench of the Tribunal in OA No.462/2005
37. Relying upon the judgment of the Honble Apex Court in Vipin Chandra Hira Lal Shah (supra), the applicant submitted that every year a fresh list should be prepared, and if vacancy/vacancies of a particular year are not filled up, notional Select List may be prepared after reviewing the short-listed candidates coming within the zone of consideration for consideration for appointment to the IAS. He pointed out that Regulations provide for the names of the candidates provisionally included in the previous Select Lists should be carried forward, and will be considered for inclusion in the fresh list to be prepared by the Selection Committee for the subsequent year, even if they have crossed the age limit of 54 years in the meanwhile. He, however, emphasized again that vacancies of a particular year cannot be carried forward, and have to be exhausted in that particular year itself, and while the vacancies cannot be carried forward, the names of the provisionally selected candidates can be carried forward. He had repeated his prayer that in accordance with the judgment in Vipin Chandra Hira Lal Shah (supra), if the vacancy/vacancies are not filled up in the particular year, notional Select List may be prepared, reviewing the Select List, and including more candidates, who had come within the zone of consideration, and had been short-listed. He had, therefore, again prayed for directions upon the respondents for appointment to the IAS against the Select List year of 2008.
38. In his rejoinder to the reply filed on behalf of Respondents No. 1& 2 representing Union of India, once again the applicant had reiterated his very same contentions, and had submitted that while the names of the officers treated as provisionally selected in a Select List may be carried forward to the next years fresh list, but the vacancies of any particular year must be exhausted in that very year itself, and, thereafter, prayed for the OA to be allowed.
DISCUSSION OF THE LAW AND THE ARGUMENTS
39. Heard. Counsels for all the sides very vehemently argued their contentions at quite length of time. We may also point out here that the Rule position, which is applicable, has already been noticed by this Tribunal in other cases also, and by the Honble Delhi High Court and Lucknow Bench of the Honble Allahabad High Court, and also by the Honble Apex Court. Therefore, we need not reproduce those Rules and Regulations here once again.
40. The genesis of these 8 cases is very much related to the OA No.80/2002 Dr. Vishram Singh Yadav vs. Union of India filed before the Lucknow Bench of this Tribunal, in which orders had been pronounced by the Bench on 09.07.2003. With advantage, we may borrow the following paragraphs from the judgment as pronounced in that OA, the ratio of which we are bound to follow, even though it may be 12 years after the order was pronounced. The prayers as made by the applicant in that OA had been summarized in Para-1, and the case was thereafter discussed in the following Paragraphs:-
2. Pleadings on record have been perused and learned counsel for the parties have been heard.
3. Briefly stated the facts are that the applicant belongs to the 1972 batch of the Provincial Civil Service (E) (hereinafter referred to as PCS). The applicant was considered for promotion to the IAS by the DPC held in June 1998 and in July 1999 for vacancies as on 1st January, 1998 and as on the 1st January, 1999 but he could not be promoted on account of non availability of sufficient number of vacancies. In respect of vacancies as on 1st January, 2000 and as on 1st January, 2000, the selection committee met on 30th and 31st October, 2001. The applicant was considered for promotion in respect of vacancies as on 1st January, 2000 by this selection committee but could not be promoted for want of adequate number of vacancies. In respect of vacancies as on 1st January, 2001, the applicant was not considered for promotion having crossed the age of 54 years. The applicant has challenged in this O.A. the amendment to regulation 5(1) of the IAS (Appointment by Promotion) regulations 1955 (hereinafter referred to as Regulations of 1955) made in the year 1997 whereby the number of vacancies as on 1st January of the year in which the meeting of the selection committee is held is to be taken as total vacancies available in that particular year for promotion of officers belonging to the PCS to the IAS. The applicant has also challenged the upper age limit of 54 years beyond which no officer belonging to the PCS can be considered for promotion to the IAS. Further the admitted factual position is that the Govt. of India by notification dated 31.12.1997 altered the IAS cadre strength of U.P. by making provision for 34 additional promotional posts for the PCS officers and non state Civil Service Officers. By a subsequent circular of 11.2.92, the Govt. of India split the enhanced promotional posts into three parts to be filled in three phases i.e. in the year 1998, 1999 and 2000. Although the applicant has in his pleadings contested the decision of the Govt. of India for splitting up 34 additional posts in three years, he has not challenged in the relief clause the notification of 31st December, 1997 and of 11.2.98 whereby 34 additional posts were created for State Civil Service Officers for promotion to the IAS cadre and whereby the additional promotional posts were split in three years i.e. in 1999 and 2000.
4. In so far as the challenge to splitting up in three years of the additional 34 posts created by the Govt. of India is concerned, the issue is squarely covered by the decision in O.A. Nos. 3/2000, 257/2000, 269/2000, 52/2000, 25/2001, 121/2001 and 184/2001 which were decided by a common order dated 25.11.2002 in which a finding was recorded by this Tribunal that splitting up of the additional posts in different years was justified as such action of the Govt. of India cannot be termed as illegal. While taking this view, this Tribunal referred to the judgment and order passed earlier by this Tribunal on 27.5.99 in the case of Pradeep Chandra and others vs. Union of India (OA No.160/98) which was challenged before the Lucknow Bench of the Honble High Court of Allahabad and the said writ petition filed before the Honble High Court was still pending. However, by interim order dated 7.11.2001 passed in W.P. No. 1550 (SB) 2001 by the Honble High Court against the decision of this Tribunal in OA No.160/98 in the case of Pradeep Chandra and others vs. Union of India, it was directed that the case of the applicants of that O.A. shall be considered only against vacancies of 1998 subject to fulfillment of the requisite qualifications including the age at the relevant time. Further while upholding the legality of the circulars dated 11.2.98 and 31st December, 1997 in the bunch of OAs decided on 25th November, 2002 in the case of S.P.S. Chauhan and others vs. UOI and others by this Tribunal, reference was also made to the decision of the Allahabad Bench of this Tribunal in OA No.203/99 in re Dr. Rajesh Mohan Srivastava v. U.O.I. which involved the same question of spliting up of vacancies in different years in respect of non-State Civil Services officers. Though this O.A. was decided by the Allahabad Bench of this Tribunal in favour of the applicants, the decision was challenged in the Hon'ble High Court of Allahabad (Lko Bench) and Hon'ble High Court in their judgment dated 7th March, 2002 passed in W.P. No. 732/2000, W.P. No. 780/2000 and W.P. No. 1720- (SB) /2000 held that the view expressed by the Allahabad Bench of this Tribunal was not correct. The Hon'ble High Court clearly held that the bifurcation of the posts in different years by the Government of India can not be termed as illegal or invalid. The judgment of the Allahabad High Court dated 7th March, 2002 was challenged in SLP No. 13229-13231 (Civil) 2002 before the Hon'ble Supreme Court and the said SLPs were dismissed by the Apex Court by order dated 29th July, 2002. Thus the finding of the Allahabad High Court to the effect that bifurcation of the vacancies in different years has validly been made was in effect affirmed by the Apex Court also. Therefore, the contention of the applicant that spliting up of 34 additional posts in three different years i.e. in 1998, 1999 and 2000 was not called for has to be rejected as unsustainable.
5. The relief claimed in respect of enhancement in the outer age limit of 54 years to 56 years for consideration for promotion to the IAS from PCS also formed the subject matter of a bunch of O.As. (O.A. Nos. 3/2000, 257/2000, 52/2000, 25/2001, 121/2001, 184/2001), decided by this Tribunal on 25.11.2002 and it was held that fixation of prescribed age limit of promotion from PCS to I AS is purely a matter of policy which is framed by the Government after due consideration of all the aspects. Accordingly it was held that no interference by this Tribunal was called for in such a policy decision. Following the judgment and order passed by this Tribunal on 25.11.2002 in a bunch of O.As. in the case of S.P.S. Chauhan and Ors. v. UOI and Ors., we hold that there is no justification for interfering with the policy decision of the Government and for issue of directions to raise the outer age limit from 54 to 56 years for considering PCS officers for promotion to IAS. The relief claimed in this regard therefore cannot be granted to the applicant of this O.A.
6. In so far as the amendment made in 1997 to Rule 5(1) of the Regulations of 1955 is concerned, it may be stated that prior to the amendment Rule 5(1) provided that the number of members of the State Civil Service to be included in the list shall be calculated as the number of substantive vacancies anticipated in the course of a period of 12 months commencing from the date of preparation of the list plus 20% of such number or two whichever is greater. By amendment in Rule 5(1) of the Regulations of 1955 made in the year 1997, it was provided that the number of posts of the State Civil 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 1st day on January of the year in which the meeting is held. Thus by the amendment instead of taking into account the anticipated vacancies of 12 months, the vacancies existing as on 1st day of January of the relevant year were to be taken into account for considering the eligible PCS officers for promotion to the IAS. It cannot be disputed that the Regulations of 1955 are statutory in character and unless it is shown that they are ultra vires of the Constitution of India, they cannot be quashed. Since it has not been shown that the amendment to Rule 5(1) of the Regulations of 1955 is ultra virus, we do not find any justification in quashing the amendment made to Rule 5(1) of the Regulations of 1955. Therefore, no relief can be granted to the applicant on this score also,
7. It was further submitted on behalf of the applicant that the constitution of the Selection Committee which met on 30th and 31st October, 2001 and which considered the applicant for promotion from PCS to IAS was not in order in as much as in place of Agriculture Production Commissioner or Commissioner and Secretary Planning or Sr. Most Secretary, one Sri P.C. Sharma Principal Secretary was included in the Selection Committee who was not the senior most Secretary. It was submitted in this regard that since the Agriculture Production Commissioner was very much available and was also senior to Sri P.C. Sharma the said Sri P.C. Sharma could not have been included as the senior most Secretary in the Selection Committee which met on 30th and 31st October, 2001. Regulation 3 of the Regulations of 1955 provides for a Selection Committee consisting of Chairman of the UPSC or any other member of the UPSC if the Chairman is not available and in so far as the State of U.P. is concerned, the following officers:
(a) Chief Secretary to Government of U.P.
(b) Chairman, Board of Revenue.
(c) Agricultural Production Commissioner or Commissioner and Secretary (Planning) or Senior most Secretary.
(d) Sr. Most Divisional Commissioner and
(e) Two nominees of the Central Government not
below the rank of Joint Secretary.
7A. On behalf of the respondents it was submitted that the O.A. is liable to be dismissed for non-joinder of necessary parties as the officers likely to be affected in case the applicant is considered for promotion from PCS to IAS and is ultimately promoted to the IAS against vacancies for the year 1999 or for the year 2000 have not been made parties. It was submitted in this regard that some of the officers likely to be affected in the event the applicant was promoted to the IAS had necessarily to be impleaded as necessary parties. On behalf of the applicant it was argued that there was no necessity for impleading any officer who was promoted to the IAS against vacancies for 1999 or against vacancies for the year 2000 because the only claim of the applicant is against non-inclusion of his name in the select list and on behalf of the applicant it has no where been stated that he is claiming seniority over his colleagues nor has any averment been made to the effect that juniors have been promoted to the exclusion of the applicant. I have considered the submissions made in this regard on behalf of the parties and I am of the opinion that the O.A. does not suffer from the omission to implead necessary parties. In his pleadings the applicant has not claimed seniority over any officer who has been selected for promotion to the IAS either against vacancies of 1999 or against the vacancies of 2000. Further there is no relief claimed towards seniority and therefore, no officer promoted against vacancies of 1999 or against vacancies of 2000 is likely to be affected in case the applicant is included in the select list prepared in respect of vacancies for the year 1999 or for the year 2000. Accordingly we take the view that the O.A. cannot be rejected for non-joinder of necessary parties.
8. xxxxxxxxxx (Not reproduced here).
9. On facts it was submitted that the applicant was considered for promotion from PCS to IAS by the Selection Committee which met in June 1998 for considering promotion of the PCS officers to the IAS in respect of vacancies as on 1,1.98, and further he was considered for promotion in July 1999 in respect of vacancies as on 1.1.99. In respect of vacancies for the year 2000 and for the year 2001, the applicant was considered by the Selection Committee which met on 3Qth October, 2001 and 31st October, 2001. For the year 1998, six PCS officers were included in the select list against six vacancies in the promotion quota in the State cadre as determined by the Central Government. The applicant was not considered by this Selection Committee as his name did not fall within the zone of consideration of the select list of 1998. Further for the year 1998, no officer junior to the applicant was considered for promotion to the IAS. For the year 1999, there were 18 vacancies and accordingly 18 PCS officers were included in the select list in the promotion quota of the State cadre. The name of the applicant was, considered by the Select Committee which met in July 1999. Since the applicant was at S. No. 34 in the zone of consideration, he could not be promoted against 18 vacancies although he was assessed by the Selection Committee as Very Good. In respect of vacancies for the 2000, a total number of 13 vacancies were determined by the Central Government for promotion to the IAS which included one vacancy reserved for Sri O.S. Deshwal who was appointed to the IAS on 28.12.2001. Thus in effect for the year 2000, there were only 12 vacancies and the applicant was at S. No. 16 in the zone of consideration. Since the total number of vacancies for the year 2000 was only 12 and the applicant for this year was graded only as 'Good' by the Selection Committee, he could not be included in the select list drawn up in respect of vacancies for the year 2000 also. In respect of vacancies for the year 2001, the applicant was not considered by the Selection Committee as he had crossed the age of 54 years as on 1.1.2001.
10&11.xxxxxxxxxxx(Not reproduced here).
12. It is further averred by the applicant in Para 8 of the Supplementary Affidavit filed along with application for summoning the original records (M.P. No. 2668/2002) that for the year 2000, there were 13 vacancies but only six persons have joined leaving 7 unfilled posts which included 3 posts against which Sri Hardev Singh, Sri Shankar Lal Jaiswal and Sri Sohan Lal were wrongly promoted to the IAS cadre. Thus according to the applicant since he was at S. No. 16, he would definitely stand a clear chance of promotion if the 7 unfilled posts for the year 2000 are filled up by giving promotion to the 7 PCS officers in the IAS cadre after excluding Sri Hardev Singh, Sri Shankar Lal Jaiswal and Sri Sohan Lal. In his representation dated 6.7.2002 annexed as Annexure No. SA-3 to the Supplementary Affidavit it has been stated that Sri Girdhari Lal was the last candidate promoted to the IAS cadre to the basis of gradation list of PCS officers and the applicant's name is at S. No. 3 after Sri Girdhari Lal. Sri Bansi Lal had crossed the age of 54 years as on 1.1.2000 and Sri Surendra Veer Singh Saxena was the second in the eligibility list and the applicant's name was just next to the name of Sri Saxena. Thus it is submitted that the applicant stands a very fair chance of getting promoted to the IAS cadre if the officers who opted for the higher scale of Rs. 22,400-24,500 are excluded and the remaining vacancies are also filled up.
13. On behalf of the respondents, the submissions made by the applicant as stated in the immediately preceding paragraph have not been specifically controverted. In the counter reply filed on behalf of the respondent No. 2, it has been stated in Para 7.4 that the cases of the PCS officers for promotion to the IAS cadre have to be considered in order of seniority in the State Civil Service in accordance with Regulation 5(2) of the Regulations of 1955. It is stated that the names of Sri Hardev Singh and Sri Shanker Lal Jaiswal figured at S. Nos. 7 and 10 in the eligibility list of 2000 and hence they were considered for promotion to the IAS cadre by the Selection Committee which met on 30th and 31st October, 2001. Reference was also made in this regard on behalf of the respondents to the decision in the case of UOI v. M.L. Capoor and Ors., 1973(2) SLR 824 in which the Hon'ble Supreme Court held that the inclusion of the name of a member of service in the select list for a particular year will not entitle him for being (sic) in the select list for the succeeding year also as a matter of course. It is submitted that in accordance with the provisions of Regulation 5 (5) of the Regulations of 1955, the Selection Committee prepares a list by including the names of eligible officers first from those classified as 'outstanding' and thereafter from amongst those classified as 'Very Good' and the officers included in the category of 'outstanding' and those included in the category of 'Very Good' retain their inter-se seniority in their category in the State Civil Service. According to the respondents this procedure has also been upheld by the Hon'ble Supreme Court in the case of R.S. Dash v. UOI and Ors., AIR 1987 SC 593= 1987(2) SLJ 56 (SC). It was thus submitted that as per this procedure duly approved by the Hon'ble Supreme Court, if the name of a junior officer finds place in the 'outstanding' category, he would be placed higher in the select list as compared to a Sr. Officer who has been categorised only as 'Very Good'. Thus a junior officer having a higher grading would supersede a senior officer. It was held by the Apex Court in the case of R.S. Dash v. UOI (supra) that where selection is made on merit for promotion to a higher service, the selection of a junior officer in preference to his senior does not strictly amount to supersession. It was also held in this case that for such supersession the Selection Committee is also not required to record any reasons. However, in the case of applicant, there is no denial on behalf of the respondents of the averment made on behalf of the applicant that Sri Hardev Singh and Sri Shanker Lal Jaiswal having opted for the higher scale had been wrongly promoted and Sri Sohan Lal having declined promotion was also wrongly promoted. On behalf of the respondents it has been averred in Para 7.3.3 of the main counter reply that while assessing the applicant's suitability for promotion to the IAS, the Selection Committee had taken due cognisance of the order dated 18th October, 2001 passed by the Hon'ble High Court (Lucknow Bench) in W.P. No. 636/2001 (SB).Thus the Selection Committee in effect according to the respondents did not read the confidential remarks given by the accepting officer for the year 98-99 while considering the applicant's case for promotion.
14. On behalf of the respondents reference was also made to the following decisions:
1. Nutan Anand v. UOI and Ors., (1996) 2 SCC 488.
2. Durga Devi and Anr. v. State of Himachal Pradesh, 1997 SCC (L&S) 982.
3. UPSC v. H.L. Dev and Anr., AIR 1988 SC 1069=1988(3) SLJ 610 (SC).
4. State of M.P. v. Srikant Chapekar, JT 1992(5) SC 633=1992(3) SLJ 73 (SC).
5. Dalpat Aba Saheb Solunki v. B.S. Mahajan, AIR 1990 SC 434.
6. Smt. Anil Katiyar v. UOI and Anr., 1997(1)SLR 153=1997(1) SU 145 (SC).
In all these decisions cited on behalf of the respondents the Hon'ble Supreme Court held that the Tribunal cannot sit in judgment like an Appellate Authority, over the assessment made by the Selection Committee of the comparative merit of the candidates considered for promotion. It was also held in these case by the Apex Court that the only direction which can be given by the Tribunal/Court is a reconsider the case of an officer in accordance with law. We are in respectful agreement with the ratio of the decisions cited on behalf of the respondents.
15. The submissions made on behalf of the respondents and also on behalf of the applicant have been considered by us. In this case by order dated 29.5.2003, respondents No. 2 and 3 were required to produce the records of the DPC for vacancies of the year 2000 held on 30th and 31st October, 2001 and the relevant ACR folders of the applicant for perusal of the bench. However, even after waiting for about 40 days, the records have not been produced so far by the respondents. An M.P. (1342/03) has been filed on behalf of respondent No. 2 by his learned Counsel Mr. A.K. Chaturvedi on 30.6.2003 i.e. after expiry of one month from the date on which the order dated 29.5.2003 was passed. In this M.P. it is stated that since the Counsel was ill from 3rd June, 2003 to 6th June, 2003, the copy of the order of this Tribunal dated 29.5,2003 could be sent to UPSC only or 8th June, 2003. Subsequently on 27th June, 2003, a reminder was sent to the UPSC by the learned Counsel for respondent No. 2; In the M.P. filed on 30.6.2003, it is also stated that since the record has to come from New Delhi, it is taking time. By this M.P. a request has been made that time for production of records from the UPSC be extended upto 15th July, 2003.
15A. The first letter to the UPSC was sent by learned Counsel for the respondent No. 2 on 8th June, 2003 which could have gone on 30th May, 2003 or at least on 2nd June, 2003 as the order for producing records was dictated in open Court on 29.5.2003. The period of two weeks for producing records expired on 13th June, 2003. The reminder after the original letter of 8th June, 2003 was sent to UPSC by the learned Counsel for the respondent No. 2 only on 27th June, 2003 i.e. 2 weeks after the expiry of the time allowed. Thus the reminder letter was also very much delayed. In the reminder letter dated 27th June, 2003 sent to the UPSC in Para 2, it is stated as under:
"I am sending this reminder to you so that the records may be produced positively before the Hon'ble Tribunal by 15th July, 2003."
It is not understood why and how the learned Counsel for the respondent No. 2 in his reminder letter of 27th June, 2003 requested the UPSC, on his own, to sent the records by 15th July, 2003. In fact the UPSC could have been requested to send the records at an early date say, within a week to facilitate pronouncement of the judgment by this bench which had reserved the judgment on 29th May, 2003. In that case the records could have been received latest by 4th July, 2003. However, after going through the pleadings on record and bearing in mind the submissions made during oral hearing on behalf of the parties, we are of the opinion that this O.A. can be decided even in the absence of the records. Accordingly we are deciding the O.A. in the absence of records. In the circumstances, M.P. No. 1342/2003 is rejected.
16. The factual position as stated on behalf of the applicant in Paras 6 and 7 of the Affidavit accompanying the M.P. for summoning of records that in response to the option letter of 28.9.2000, two officers of the State Civil Service who were senior to the applicant namely Sri Hardev Singh and Shankar Lal Jaiswal had given their option for the higher pay scale of Rs. 22,400-24,500 and hence they could not have been considered for promotion to the IAS cadre is not specifically denied. There is also no specific denial of the applicant's contention that Sri Sohan Lal had declined promotion to the IAS. The Selection Committee which met on 30th and 31st October, 2001 much after the option had been exercised by these officers wrongly included their names in the select panel. Since these officers were senior to the applicant in the State Civil Service and since the applicant was at Sr. No. 16, he would automatically move up by three places if these three officers had not been considered and included in the select list. Besides as observed above in Para 12 of this order, Sri Girdhari Lal was the last candidate promoted from PCS to IAS against vacancies for the year 2000. According to the applicant, he would stand a fair and clear chance of promotion to the IAS as his name was third after Sri Girdhari Lal and the officer immediately below Sri Girdhari Lal was Bansi Lal who had attained the age of 54 years as on 1.1.2000, and hence could not have been considered.
41. That OA was finally decided by issuing following directions:-
1) A review DPC in respect of vacancies for the year 2000 shall be convened by the respondents and the suitability of the applicant for promotion to the IAS against the vacancies for the year 2000 shall be reconsidered by the review DPC by not including the names of Sri Hardev Singh and Shanker Lal Jaiswal in case it is found that they had opted for higher scale of Rs.22,400-24,500. Similarly the review DPC shall also not consider Sri Sohan Lal for promotion to IAS in case it is found that he had declined promotion to the IAS.
2) The review DPC shall also not read adverse remarks given by the accepting authority in the ACR for the year 98-99 as directed by the Honble High Court by order dated 18.10.2001 passed in W.P. No.636/2001(SB).
42. From the above reproduced judgment, we can see that the Lucknow Bench had very clearly brought out the distinction between the original un-amended Regulation 5(1) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, and the Regulation, as it stood amended in the year 1997. While the original Regulation had provided for preparation of the list of suitable officers and bringing them under the zone of consideration in respect of the vacancies anticipated during the 12 months period commencing from the date of preparation of the list +20% of such number or two, whichever is greater, this Regulation stood amended. The new Regulation provided that the number of Members of the State Civil Service to be included in the list for consideration was not to exceed the number of substantive vacancies as on the 1st day of January of the year in which the meeting has to be held for filling up the posts available under Rule 9 of the Recruitment Rules.
43. Thereby, instead of linking the date of determination of anticipated vacancies to the date of preparation of the list, and providing for an excess of 20%, or two, whichever is greater, the amended Rule now restricted such consideration to the number of substantive vacancies as were already available as on the 1st day of January of the year in which the meeting was to be held, even though any extra substantive vacancies may have thereafter occurred before the actual date of the meeting. The applicant had laid a challenge to this, because this also meant that if a review Selection Committee Meeting was somehow required to be held later on in respect of a particular year, that review Selection Committee Meeting also would relate to the position of the number of substantive vacancies as existing on the 1st day of January of the relevant year, and the position of the eligible candidates as on that date, irrespective of the initiation or completion of any disciplinary proceedings against them subsequent to that date of 1st day of January of that relevant year. One more aspect was that the age of 54 years having been completed also had to be viewed with respect to the very same 1st day of January of the relevant year, for which the selection was held, whether it was an original selection, or a review selection.
44. The learned counsel for the State of Bihar had submitted that in the Select List year 2010, there were four carried forward vacancies of the previous years, and three regular vacancies, because of which only there were a total of seven vacancies, and, therefore, 21 names had been considered, and seven among them, who were Very Good, had been picked up above one of the applicants before us Shri Shashi Bhushan Tiwari, whose name appeared only at Sl No.30. He had explained in detail the Table submitted by the respondents in their reply at page-130 of OA No.170/2013 regarding the vacancy position.
45. Shri Nischal appearing for the respondents representing UPSC had submitted that strictly as per the prescribed procedure, those who had been assessed Very Good, and had been placed above the applicants before us, had been selected, and that the procedure in regard to selection as prescribed in the relevant Rules had been followed scrupulously. He had further pointed out that the applicants of two of the O.As before us, OA No.170/2013 and OA No.173/2013, were not even under the zone of consideration.
46. Shri R.N. Singh, appearing for the respondents representing the Union of India had referred to his counter reply, and had also adopted all the arguments and submissions put forward by the UPSC in their reply.
47. Learned counsel for the applicants had pointed out that even though the Selection Committee Meeting had been held on 31.07.2012, if the provisionally selected candidates could not have obtained clearance certificates in time before the issuance of the Appointment Orders dated 02.11.2012, and even till 31.12.2012, and when there was a delay on the part of the provisionally selected candidates obtaining and bringing their clearance certificates in time, and the applicants before us had filed their representations soon after the Appointment Order dated 02.11.2012 had been issued, i.e., on 30.11.2012, before the year had lapsed, the cases of the applicants before us ought to have been considered for issuance of Appointment Orders to the IAS to them.
48. We have gone through the case law as cited by both the sides in this case.
49. In the case of Nutan Arvind (supra), the Honble Apex Court had held that while the position of law was that when a high level committee had considered the respective merits of the candidates, assessed their gradings, and considered their cases for promotion, even the Honble Apex Court cannot sit in judgment over the assessment made by the DPC as an Appellate Authority. Therefore, it is not possible for this Tribunal also to sit in judgment over any such assessment made by the Selection Committee under the IAS (Appointment by Promotion) Regulations, or the IAS (Appointment by Selection) Regulations.
50. In the case of Durgadevi and another (supra) also the Honble Apex Court had reiterated the very same ratio that the Tribunal had fell in error in abrogating to itself the power to judge the comparative merits of the candidates, and consider their fitness and suitability for appointment, which was the function solely of the Selection Committee only, thus reiterating its earlier observations in the case of Dalpat Abasaheb Solunke (supra).
51. In the case of UPSC vs. H.L. Dev and Others (supra), once again the Honble Apex Court had laid down the law that the jurisdiction to categorize candidates in the light of relevant service records, and to decide as to what norms should apply in making the relative assessment of the candidates, are exclusively the functions of the Selection Committee, and fall within its jurisdiction alone.
52. In the case of State of Madhya Pradesh vs. Shrikant Chapekar (supra) also, the Honble Apex Court had held that the Tribunal had overstepped its jurisdiction in reaching the conclusion that the adverse remarks were not sufficient to deny promotion, and that it is not the function of this Tribunal to assess the service record of a Government servant, and to order promotion being granted on that basis, and it is only for the Departmental Promotion Committee to evaluate the same and make recommendations based on such evaluation. It was also held that it is not within the competence of the Tribunal to have thereafter ordered deemed promotion of the respondent before the Honble Apex Court.
53. In the case of Dalpat Abasaheb Solunke vs. B.S. Mahajan (supra), the Honble Apex Court had held that it is not the function of the Court to hear appeals over the decisions of the Selection Committees, and to scrutinize the relative merits of the candidates. It was categorically laid down by the Honble Apex Court that the fact as to whether a candidate is fit for a particular post, or not, has to be decided only by the duly constituted Selection Committee, which alone has the expertise on this subject.
54. Further, in the case of Smt. Anil Katiyar vs. Union of India & Ors. (supra) also, the Honble Apex Court had appreciated the Tribunal having proceeded on the basis that it is not expected to play the role of an Appellate Authority or an umpire in connection with the acts and proceedings of the DPC, and that it could not sit in judgment over the selections made by the DPC, unless the process of selection itself is assailed as having been vitiated by malafides, or on the ground of it being arbitrary.
55. One of the very relevant submissions made by the respondents in the supplementary reply to the rejoinder, on behalf of Respondent No.2, UPSC, before the Lucknow Bench, was that proceedings of each Selection Committee are independent of the other. No manner of continuity can, therefore, be imputed or implied with respect to the proceedings of successive Selection Committees. Since every year a fresh ACR is added to the service record of eligible officers for assessment by the Selection Committee, therefore, the basis of overall relative assessment of the service records, and the grading assigned to a particular officer by a subsequent Selection Committee, may also improve or go down, as compared to the grading accorded to him by a previous Selection Committee. It was, therefore, submitted that the assessment made by the Selection Committee for the year 1999 does not entitle him to be included in the Select List of the year 2000, for which the consideration by the Selection Committee is independent of the previous Selection Committees proceedings. We accept this contention.
56. In the case of M.L. Capoor (supra), it was held by the Honble Apex Court that though the words used in Regulation 5(4) of the IAS (Appointment by Selection) Regulations are Review and Revision, in the process of such reviews and revision, a fresh assessment must be made of the merit and suitability of all the remaining Members in the previous list of other eligible Members. It was further held by the Honble Apex Court that if the criteria for selection are only merit and suitability from among all eligible Members, then, the field of selection must comprise of the entire category of eligible members of service, as otherwise a selection will not be on the basis of merit and suitability from among all the eligible members of the State Service. At the same time, the Honble Apex Court had observed that the inclusion of the name of a member in the select list for a year will not be an entitlement for his inclusion in the select list for the succeeding year, and a member, who has been assigned a rank in the selection list for a previous year, can have no claim for the same rank in the next year. This supports our acceptance of the respondent UPSCs contention in the preceding paragraph.
57. In the case of R.S. Dash (supra), the Honble Apex Court held that the Selection Committee is required to categorize the eligible officers in four different categories vis-`-vis Outstanding, Very Good, Good, or Unfit, on the basis of the overall relative assessment of their service records. If there are five members who fall in the same grading category, then their names shall have to be arranged in the order of their original inter-se seniority in the State Civil Service, with the same principle being followed in arranging the list from among the officers falling under the category of Very Good and Good. It was further clarified by the Honble Apex Court that if a junior officers name finds place in the category of Outstanding, he will be placed higher in the Select List, in preference to a senior officer finding place in the Very Good and Good categories. The Honble Apex Court had clarified that in this process, though a junior officer would supersede his seniors because of his higher grading, but this cannot be held that where selection is made on merit alone for promotion to a higher service, such selection of an officer, though junior in service, in preference to a senior, on the basis of his personal merit, does not strictly amount to super-session. It was also clarified by the Honble Apex Court that the Regulations do not require the Selection Committee to record its reasons for such inter-se supersession of officers, after it has accorded them gradings and categorized them as Outstanding or Very Good.
58. The applicants of these eight cases have very heavily relied in their submissions on the Honble Apex Courts judgment in Hemraj Singh Chauhan & Ors. (supra) also. On carefully going through that judgment, it is seen that the present case of the applicants is not at all on all fours with that case. That case had arisen from an order of this Tribunal in a different O.A., though with the same cause title. Confusion has been created because the same applicant Shri Hemraj Singh Chauhan had filed many OAs, and his cases had travelled up to Honble Delhi High Court also many times, on different aspects, in respect of the different prayers of the same applicant. In the two OAs decided by this Tribunal on 15.12.2006, the judgment of the Honble Delhi High Court in WP (C) No.1106/2009 dated 05.02.2009 had become final. That matter had not been carried before the Honble Apex Court. These two judgments, therefore, have no connection whatsoever with the Honble Apex Courts judgment in Union of India & Anr. vs. Hemraj Singh Chauhan & Ors. (supra), in which the issue and controversy was totally different, as that judgment of the Honble Apex Court had been pronounced in the SLPs filed against the judgment and order dated 14.11.2008 delivered by the Honble Delhi High Court on the Writ Petition filed by Hemraj Singh Chauhan and Ramnawal Singh, and not in the Writ Petition filed by the Union of India against the orders of this Tribunal, as was the case in Honble Delhi High Courts judgment in W.P. (C) No.1106/2008 dated 05.02.2009. Since the composition and strength of the cadres are not an issue at stake in the present OAs, the Honble Apex Court judgment in Union of India & Anr. vs. Hemraj Singh Chauhan & Ors. dated 23.03.2010 (supra) has no relevance whatsoever to the instant cases.
59. In this Tribunals common order dated 15.12.2006 (supra) in two O.As, however, many issues had been examined, the law relating to them had been discussed, and the ratio was then arrived at accordingly. In Para-16 of that order, this Tribunal had taken note of the Honble Apex Courts judgment in Union of India & Others vs. Vipin Chandra Hira Lal Shah (supra), in which the Honble Apex Court had held that if for any reason the Selection Committee is not able to meet during a particular year, the Committee, whenever it meets next, should, while making the selections, prepare a separate list for each Select List year, keeping in view the number of vacancies in that year, after considering the State Civil Service officers who were eligible for consideration for that year, and fell within the zone of consideration for selection in that year. That judgment and order had met with approval in the Honble Delhi High Courts judgment, and has been fully followed in the instant cases, as when the Selection Committee Meeting took place on 31.07.2012, it had separately drawn up the Select Lists for the years 2008, 2009 and 2010, as per the law laid down in this regard. The second aspect covered in the order of this Tribunal dated 15.12.2006 was regarding Cadre Review, which does not concern the instant cases, and, therefore, that portion of the judgment and order has got no connection with, or relevance in the instant cases before us.
60. The Honble Apex Court had, in the case of Parmeshwar Prasad vs. Union of India and Others (2002) 1 SCC 145, cited by the Tribunals Bench in its common order in two O.As. dated 15.12.2006 (supra), dealt with a case relating to the selection of Non-State Civil Service Officers, under the (Appointment by Selection) Regulations. In that judgment, the Honble Apex Court had clearly brought out the distinction between the Regulations concerning Appointment by Promotion of State Civil Service Officers, and Appointment by Selection of the Non-State Civil Service Officers. That portion of the judgment also does not enure any benefit to the eight applicants before us, all of whom are claimants in respect of Appointments by Promotion of the State Civil Service Officers category, and are not Non- State Civil Service Officers, claiming for Appointment by Selection category. Thereafter, the Bench on 15.12.2006 had relied upon the order of the Lucknow Bench of this Tribunal in Dr. Vishram Singh Yadav and others (supra), which we have extensively reproduced above, and had noted that the Chandigarh Bench of this Tribunal also had in OA No. 460-PB of 2005, decided on 18.08.2005, held similarly to the effect that unfilled vacancies cannot be carried forward. But, that discussion was in the context of Cadre Review, and the resultant re-determination of vacancies in the light of the Cadre Review, after bifurcation of the erstwhile State of U.P. into two States, i.e., Uttar Pradesh and Uttranchal, and the bifurcation of the IAS Cadre as a result thereof, and it was noted that re-examination of cadre strength is an exercise exclusively inter-se the State and the Central Government.
61. It was further noted in that order that in the case of T.N. Administrative Service Officers Association & Anr. v. Union of India & Ors., (2000) 5 SCC 728, the amendment brought in 1997 to the Regulation 5(1) of the IAS (Appointment by Promotion) Regulations had been considered, and the ratio of the ruling of the Honble Apex Court was clarified, as pertaining to only the carry forward of the vacancies arising between 2nd day of January and 31st day of December in the year, for the purpose of determining the vacancies of 1st day of January of the next year. It was noted that the Honble Apex Court had given a verdict that only those vacancies will automatically get carried forward to the next year which are not actual vacancies as on the 1st day of January of a particular year, but arise during the course of the year. It was also observed by the Honble Apex Court that only in certain situations, unfilled vacancies of a particular year can be tried to be filled up through a review Selection Committee meeting held for that year.
62. In Para-58 of the judgment, the Bench had on 15.12.2006 come to the conclusion that if after an exercise is undertaken to fill up the vacancies determined for every year by promotion of SCS officers, and for one reason or another, certain vacancies remain unfilled, it is incumbent upon the authorities to fill them up through a review Selection Committee meeting, by treating them as vacancies for the respective years only. In the result, it was held as follows:-
.If certain individuals were selected in a particular year but, on account of non-availability of integrity certificate etc., their names had to be carried forward in terms of second proviso to Regulation 5 (2) read with first proviso to Regulation 5 (3) of the Promotion Regulations ibid, it is the names of the persons so selected that will be so carried forward and not the vacancies against which they were selected.
63. In the case of Non-SCS vacancies remaining unfilled, the Bench had observed that if the Government was not in a position to fill up those vacancies through Non-SCS Officers, they should have released them for SCS Officers. The Tribunal had finally come to the following conclusions:-
60. In view of the facts and circumstances mentioned above, we are of the opinion that the respondents are duty bound to convene meeting of review DPC/Selection Committee to fill up vacancies, which ultimately remained unfilled in the years 2001, 2002 and 2004.
61. In the result, OA No.1097/2006 is without merit and is accordingly dismissed. OA No.1137/2006 is partly allowed and the respondents are directed to convene the meetings of review DPC/Selection Committee to fill up the posts, which ultimately remained unfilled in the years 2001, 2002 and 2004 to consider all eligible SCS Officers in the zone of consideration in the respective years, including the officers who were put on the Select List of those years, but could not be appointed due to want of the integrity certificate, etc. This exercise shall be completed within a period of four months from the date of receipt of a copy of this order. There will be no order as to costs.
(Emphasis supplied).
64. These aspects, when examined by the Honble Delhi High Court in its judgment dated 05.02.2009 in WP (C) No.1106/2008 (supra) did not meet with Honble High Courts approval in full for the conclusions arrived at by the judgment and order of this Tribunal dated 15.12.2006.
65. Rather, on the point of filling up of IAS vacancies from amongst Non-SCS Officers, the Honble High Court had on 05.02.2009 taken notice of Rule-8(2) of 1954 (Appointment by Selection) Rules, and noted that Non-SCS Officers are to be promoted only when such Officers are of outstanding ability and merit, and further noted that the Tribunal had considered the aspect that Non-SCS Officers of outstanding merit and ability were available in respect of the year 2004. Thereafter, the Honble High Court had gone ahead to hold as follows:-
In so far as, vacancies of 2001 and 2002 are concerned, these were not filled up only because of non-availability of integrity certificate or non-expunging of adverse remarks. Taking into all these facts, the Tribunal has directed that if certain individuals were selected in a particular year but, on account of non-availability of integrity certificate, etc., their names had to be carried forward in terms section proviso (2) read with first proviso (3) of the Regulations 1955. We do not find any infirmity in these directions in the facts of this case.
Coming to the vacancies of the year 2004, we may first indicate the second factual circumstance which is highlighted by the respondents before us, before going into the legal aspects of this issue. It was pointed out by Mr. Arora, learned Additional Advocate General appearing for the State of UP that in the year 2000, in a similar circumstance three vacancies remained unfilled which were carried forward to the next year. This action of the Government was challenged by one Dr. Vishram Singh Yadav who filed OA No. 80/2002 before the CAT Lucknow Bench, Lucknow. The said bench decided that OA vide judgment dated 09.07.2003 directing that the vacancies of the year 2000 should be filled by conducting review DPC for that year. This judgment of the Tribunal was initially challenged by filing writ petition in the High Court of Judicature at Allahabad, sitting at Lucknow. However, when the Government could not succeed in getting the stay of the aforesaid judgments, the directions contained in that judgment were implemented by holding review DPC. Accordingly, a proposal was submitted vide letter dated 26.12.2004 determining the vacancies of the year 2000 and 2001. This proposal was submitted by the State of UP to the General Government which was accepted by the Central Government and vacancies of the year 2000 were reverted back to that year and communication in this behalf dated 27.04.2004 was sent by the Central Government to the State of UP. Accordingly the notification dated 15.02.2005 was issued by the Government of India, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions and the vacancies were filled by holding review DPC for that year. Even this act of the petitioners would, according to us, estopped the petitioner from raising the contention that they cannot now hold review the DPC. Legally also, such a direction is perfectly valid as it is in tune with the principle of law laid down by the Supreme Court in the case of Union of India & others v. Vipinchandra Hiralal Singh reported in (1996) 6 SCC 721 where the Court held that the Selection List for promotion of IAS should be prepared year wise and if there are unfilled vacancies in a particular year, Notional Select List is to be prepared separately for that year and all the eligible officers falling within the zone of consideration in that particular year are to be considered for promotion to the post. This issue, therefore, is no longer res-integra and stands authoritatively answered by the aforesaid judgment.
Thus, we do not find any merit in any of the contentions raised by the petitioner in this petition. The petition is accordingly dismissed.
At this stage, Mr. Arora, appearing for the State of UP informs us that because of the pendency of this writ petition not only the vacancies of the years 2001, 2002 and 2004 but even of subsequent years have not been filled up. He further informs us that as of today there are 106 vacancies which are to be filled under this promotion quota and this is seriously affecting the functioning of the administration. In view thereof, we direct the petitioner as well as the State Government to carry out exercise of filling up of the vacancies by convening review DPC within a period of two months from today.
66. We have also gone through carefully the orders of this Tribunal in the case of Hemraj Singh Chauhan & Ors. (supra), the orders of the Honble Delhi High Court in the case of Union of India through Secretary, Ministry of Personnel Public Grievances & Pensions Department of Personal & Training vs. State of U.P. through Chief Secretary Govt. of U.P. & Ors. (supra) and the orders of the Honble Apex Court in Union of India & Ors. vs. Hemraj Singh Chauhan & Ors. in Civil Appeal No.2651-52/2010 arising out of SLP (C) No. 6758-6759/2009 dated 23.03.2010. It is seen that the directions for holding Review Selection Committee Meeting were given in the case of Hemraj Singh Chauhan & Ors. (supra) by the Honble Apex Court in exercise of its extra ordinary powers under Article 142 of the Constitution of India, as a one time measure, but the Honble Apex Court itself had put a rider that in the normal cases, the provisions of Rule-4(2) of the IAS Cadre Rules cannot be construed to operate retrospectively. The said Rule 4(2) of the IAS Cadre Rules had been reproduced by the Honble Apex Court in Para-25 of its judgment and analyzed thereafter.
67. The controversy in that case itself was different, as was summarized by the Honble Apex Court in Para-26 of its orders as follows:-
26. The main controversy in this case is, whether re-examination on the strength and composition of cadre in the State of Uttar Pradesh had taken place in accordance with the mandate of Rule 4 sub-rule (2).
68. The present cases before us do not concern with this rule. The applicants before us cannot, therefore, seek directions upon the respondents, which are similar or parallel in nature, or in the nature of the extra-ordinary powers of the Honble Apex Court under Article-142 of the Constitution of India, which type of relief this Tribunal cannot certainly provide in its limited powers.
69. The role of this Tribunal is very limited. This Tribunal can only interpret the Rules/Regulations and lay down its interpretation and understanding, and strike down any Act, Rules and Regulations, if they are abhorrent in any manner, except the provisions of the AT Act, 1985, itself, as had been clarified by the Honble Apex Court in S.P. Sampath Kumar vs. Union of India & Ors. (1987) SCC Suppl. 734, and in L. Chandra Kumar vs. Union of India AIR 1997 SC 1125.
70. The rule position which has given rise to the instant cases is clear, but produces a slightly illogical result. The applicants have not challenged the Regulations themselves, and, therefore, we can only analyze and bring forth the dichotomy which arises because of the existing Rules, when read in terms of the judicial pronouncements on those Rules thereafter.
71. In accordance with the judgment of the Honble Apex Court in Union of India v. K.V. Jankiraman, AIR 1991 SC 2010, and numerous other cases, the Selection Committee Meeting is required to consider the cases of those incumbents among the State Civil Service, as well as the Non-State Civil Services, for either appointment by promotion to the IAS, or appointment by selection to the IAS, respectively, who come within the zone of consideration otherwise, but for the disciplinary or criminal proceedings of any kind pending against them on the date of the Selection Committee Meeting. This gives rise to a number of provisionally selected candidates, whose cases cannot be overlooked at all even otherwise.
72. It is well neigh possible that after the Selection Committee Meeting in the instant case had been held on 31.07.2012, and the appointment orders dated 02.11.2012 had been issued, within 60 days of the same, i.e., before 5.00 p.m. or 5.30 p.m. on 31.12.2012 of that year, one or a few of the 07 provisionally selected candidates could have walked in with a representation intimating about his (their) having been absolved in the disciplinary enquiry proceedings, or in the criminal case, or having been granted the requisite Integrity Certificate by the State Government, and as per the Rules he (they) would then have been entitled for being substantively appointed to the IAS of Bihar State immediately thereafter, on that date of 31.12.2012 itself. Since the stigma of his (or their) provisional selection had got removed before the end of the year in which the meeting of the Selection Committee took place, only on the 1st day of January of the next year, these persons would have been subjected to the Regulation that the vacancies have been carried forward, but their provisional selection in the previous Select List would have made him (them) eligible for being considered in the next years Select List also.
73. The limit of 60 days also is applicable, and the Rule position is such that the provisional selection is valid till the end of the Calendar year, or 60 days after the selection has been accepted by the Central Government on the recommendation of UPSC, whichever is later. Thus, if the window of opportunity for substantive appointment of any of the 07 provisionally selected candidates in the Select List year of 2008 was open till the closing time of the office hours on 31.12.2012, this leaves no opportunity for the applicants of these 8 cases before us to be able to plead that since the provisionally selected candidates had not been granted the necessary clearances, and the selection of those 07 candidates had remained provisional till the end of the year on 31.12.2012, the orders for the applicants substantive appointment could not at all have been issued, since they stood only next below, in the order of merit prepared by the Selection Committee Meeting, below those provisionally selected incumbents.
74. If the Rule position was otherwise, and it was such that the Select List was to be valid only till 30.12.2012 of the calendar year, i.e., one day less than 31.12.2012, rather than the Rules which provide for the Select List to be valid till the last day of the year on 31.12.2012, the claim of the applicants before us would then have been tenable on that last one day of the Calendar Year available on 31.12.2012, and the next 07 persons below the last person in the Select List, to whom orders for substantive appointments had been issued on 02.11.2012, could then have been issued appointment letters on that last day on 31.12.2012, before the Select List itself gets exhausted at the end of the year, and a new chapter begins on the 1st day of January of the next year. But, unfortunately for the applicants before us, the Rules do not provide for even such a window of one last day of the calendar year being available to them, and the Select List itself had remained valid till 5.30 p.m., or the office closing hours, on 31.12.2012, leaving no window of opportunity of even a minute for the claim of the applicants before us to get activated.
75. Therefore, when the Regulations provide that the provisionally selected candidates would remain provisionally selected till the very fag end of the calendar year, i.e., till the office closing hours on 31.12.2012 of the year in which meeting was held, we do not find any scope for the respondent-authorities to even think of issuing orders of substantive appointment to those below the last person who had been issued substantive appointment, which is what the applicants before us have mistakenly pleaded that it should have been done by the respondents.
76. Further, not only do the Regulations and judicial pronouncements prescribe that candidature of the provisionally selected candidates of a select year will remain valid till the very last working day of the calendar year, it has been further prescribed that they shall also get included in the next years Select List also, even if they have, in the meanwhile, crossed the prescribed maximum age limit of 54 years of age. Such being the level of protection offered to the provisionally selected candidates, who have higher positions in the Select List, by the Regulations, as well as by the judicial pronouncements, the applicants before us cannot seek a direction from this Tribunal, which is contrary to the settled law in this regard.
77. Also, we find merit in the submissions made in the counter affidavit of the State of Bihar (in Para-17) that if such a provision was to be made, or was ordered, it would create a bunching of, and clubbing of senior State Civil Service officers, who were provisionally selected in the Select Lists of earlier years for appointment to the IAS, having been left out, because of the departmental enquiries or criminal cases pending earlier against them not having been included, and their not having been provided with the Integrity Certificate by the State Govt., as is required to be provided, while their juniors would keep on getting substantive promotions and appointments to the IAS, if such a system of appointing the required number of candidates junior to the last person substantively appointed is adopted or ordered to be adopted, overlooking the claims of the provisionally selected officers. In fact, it is quite possible that if such a proposition is accepted, some of the 08 applicants in these 08 cases before us may themselves turn out to be the villains of the piece against some of their seniors among the other from among the 08 applicants, as they might have then managed to walk away with substantive appointment to the IAS, leaving others among the eight applicants before us behind them.
78. In the instant case, one more peculiar thing had happened. Even though the Selection Committee meeting for preparing the Select Lists for the years 2008, 2009 and 2010 had taken place on 31.07.2012, the appointment orders to IAS of the all clear incumbents had been issued only on 02.11.2012. Thereafter, because of the whichever is later clause contained in Regulation 7(4) of the IAS (Appointment by Promotion) Regulations, 1955, the rights of the provisionally included candidates of those Select Lists to walk in with their necessary clearance, and then request for appointment orders to IAS for being issued in their names, had actually survived for at least one day after 31.12.2012 onwards also, till 1st January of the Calendar Year 2013. But the rights, if any, of the applicants before us, who were below those provisionally selected candidates in the Select Lists prepared on 31.07.2012, had actually expired/got extinguished at the office closing hours on 31.12.2012. Therefore, this is all the more reason that the prayers of the applicants before us, as have been made out in the present O.As, cannot at all be granted, overlooking the still subsisting rights of the provisionally selected candidates who had been placed above them on 31.07.2012 by the Selection Committee.
79. Therefore, while we find no merit in the contention of the respondents 5 & 6 representing the State of Bihar that the Principal Bench of this Tribunal does not have jurisdiction, but at the same time, we find no merit in the contentions raised and the prayers made by all the eight applicants also, in their respective OAs, and all the eight OAs are, therefore, rejected. But there shall be no order as to costs.
80. Let a copy of this order be placed in each of the eight case files.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.