Central Administrative Tribunal - Mumbai
Dated This Monday vs Union Of India on 7 May, 2012
1 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. O.A.NO.786/2010 Dated this Monday, the 7th day of May, 2012 CORAM: HON'BLE SHRI JUSTICE A.K. BASHEER, MEMBER (J) HON'BLE SHRI R.C.JOSHI,MEMBER (A) Shri Ashok Shalikram Deshbhratar Deputy Commissioner of Police (Central Railway) Shreeji Villa, Residing at: 601 A Wing, Shreeji Villa, Opp: Nitin Company, Thane (West). ... Applicant (Applicant by Shri R.R.Shetty, Advocate) vs. 1. Union of India, through the Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 100 001. 2. The Chief Secretary, State of Maharashtra, Mantralaya, Mumbai 400 032. 3. The Additional Chief Secretary (Home) Ministry of Home, Mantralaya, Mumbai 400 032. ... Respondents (Respondents No.2 by Shri V.S.Masurkar, Advocate) O R D E R Per: Justice A.K. Basheer, Member(J):
Is non inclusion of the applicant in the Panel of Police Officers (IPS 1997 Batch) for promotion to the Selection Grade illegal, arbitrary and malafide?
2. The above question has come up for consideration in the following facts and circumstances.
Applicant who is now stated to be working as Dy.
Commissioner of Police in Central Railway (Mumbai) was initially recruited as Deputy Superintendent/Assistant 2 Commissioner of Police in the State Cadre in 1983. He was promoted as Superintendent of Police in the State Cadre in 1988. Later in May 2004, the applicant was inducted into the 1997 Batch of Indian Police Service.
3. The grievance of the applicant is that he has been denied promotion to the Selection Grade without any valid or justifiable reasons. According to the applicant he has every reason to believe that the Screening Committee had cleared his name for promotion.
4. A Screening Committee headed by the Chief Secretary in the Government of Maharashtra had drawn up the Panel of promotion. Thereafter Annexure A.I notification was issued on August 11, 2010, promoting six of the Batch mates (1997) of the applicant. The name of the applicant is conspicuously absent in the list.
5. The applicant has therefore filed this Original Application with a prayer to quash and set aside annexure A.I order to the extent it excludes his name. The other prayer is to issue a direction to the Respondents "to give effect to all the findings of the Selection Committee and grant promotion" to him to the Selection Grade with effect from January 2010 with all consequential benefits including posting in a Cadre Post.
6. Respondent No.2 and 3 in their written statement have stoutly denied the contention of the applican that Screening Committee had found him fit and cleared his name for promotion. According to the respondents the Screening Committee had kept the case of the Applicant "open" since a C.I.D. probe was pending against him. It 3 is pointed out by the Respondents that the Screening Committee Meeting was held on April 28, 2010. In fact the Government had ordered C.I.D. probe on April 15, 2010. The State C.I.D. had conducted an enquiry and submitted a preliminary report on April 19, 2010 to the State Government. This information was furnished to the Screening Committee chaired by the Chief Secretary of the State and comprising Additional Chief Secretary and the Director General of Police.
7. It is further stated by respondent Nos.2 and 3 in their Written Statement that after completing its probe; C.I.D. had submitted its final Report to the Government on January 6, 2011 and that the Government had suspended the applicant from service by order dated March 21, 2011. Disciplinary proceedings are also proposed to be held against the applicant. In short it is contended by the respondents that the applicant is not entitled to get any reliefs in this Original Application.
8. In the rejoinder filed by the applicant in response to the above written statement it is seen admitted by the applicant that he has been charge-sheeted on May 2, 2011. But according to the applicant as on the date when the Screening Committee met to finalise the Panel of Officers for promotion. No chargesheet had been issued to him and no disciplinary proceedings were pending. Therefore the respondens could not have excluded the name of the applicant from the panel of promotees. The applicant has placed heavy reliance on Annexure A.2 guidelines issued by the Ministry of Home Affairs under 4 the Government of India, in support of the above contention.
9. As has been noticed already the case of the applicant is that his name was excluded from the Panel of promotees even though the Screening Committee had found him fit for promotion. It is on record that six officers of the 1997 Batch have been promoted to the Senior Grade as could be seen from Annexure A.I. We have perused the proceedings of the Screening Committee which has been made available in a sealed cover. It is revealed from the proceedings that 8 officers including the applicant in the 1997 Batch and another officer of 1991 batch were considered by the Screening Committee. After considering the Annual Confidential Reports and other relevant materials, the Screening Committee cleared the names of six officers of 1997 batch as they were found fit for promotion to the Selection Grade. Those Officers have been subsequently promoted by Annexure A.I order. In the case of two officers of the 997 batch, the Secreening Committee adopted sealed cover procedure, since departmental enquiry was pending against them. A similar procedure was adopted in the case of the Officer of 1991 batch also for the very same reason. But in the case of the applicant the Committee decided that his case should be kept "open" because of the pendency of C.I.D. enquiry.
10. It may be noticed that the Screening Committee was held on April 28, 2010 and the State Government had ordered the c.I.D. enquiry on April 15, 2010. We have 5 referred to the above aspect only to observe that the contention of the applicant that he had been reportedly found fit by the Screening Committee is not factually correct as borne out by the records.
11. In the above factual scenario the question that may fall for consideration is whether there is any illegality or infirmity in Annexure A.I order of promotion. It may at once be noticed that the applicant has not alleged any bias, prejudice, ill motive or malafides against members of the Screening Committee. The decision of the Screening Committee to keep the case of the applicant "open", has not been challenged by the applicant even though in the written statement the respondents had revealed the above fact. The Committee in our view, had rightly decided to keep the case "open" in the facts and circumstances of the case, since obviously the "sealed cover procedure" could not have been adopted in the case of the applicant going by the relevant clause in the guidelines contained in Annexure A.2. any how, in the absence of any challenge to the above procedure adopted by the Screening Committee, we do not propose to deal with that issue any further. Suffice it to say that the Screening Committee had, in the peculiar facts and circumstances of the case, adopted a fair and equitable method while dealing with the case of the applicant.
12. But as it turned out later, investigation conducted b the C.I.D. has admittedly culminated in a chargesheet, both departmental and criminal. It is seen admitted by 6 the applicant that he has been issued a chargesheet in May 2011. It is also revealed from the Written Statement of the Respondents that a Criminal case has been registered against the applicant for offences punishable under Sec.500 and 504 of the Indian Penal Code and also under Sec. 3 of the Incitement to Disaffection Act 1922.
13. In this context it may be pertinent to refer to the alleged misconduct of the applicant which led to the C.I.D. enquiry. It appears that one Hassan Ali was arrested by the applicant on December, 15, 2008 on a charge of possession of forged passport, while he was working as Deputy Commissioner of Police,Zone III in Mumbai City. The said accused remained in Police Custody till December 23, 2008 from the date of his arrest. The Articles of Charge in Annexure A.9 Memorandum of Charge issued by the Department against the applicant would reveal that he had allegedly put certain unrelated questions to the accused, like his links with one Yusuf Lakdawala about his meetings with politicians and senior police officers at Hotel Juhu Centaur in which the issue of transfers and postings of top level Police Officers had come up for discussion and several such other questions which were not related to case of forged passport at all. It is further alleged in the Articles of Charge that the applicant had categorically denied that he had recorded the interrogation of the accused on a pen-camera. But in I.A.No.05/2011 in W.P. (Civil) No.176/2009 filed by the applicant in the Supreme Court, he had admitted on oath that the recording was done by 7 him using a pen-camera. Yet another Article of charge is that the applicant had gone to the media and made certain statements criti+cising the action of the Government. We have referred to only some of the Charges levelled against the applicant in Annexure A.9 Memorandum of Charges.
14. In the additional written statement respondent Nos.2 and 3 have stated that in the enquiry conducted by the C.I.D. has revealed that:
(i)The applicant was not the Inquiry Officer in the case in which the applicant has recorded the conversation on pen camera.
(ii)The face of the interrogator is not seen in the CD but Hasan Ali is clearly visible. Interrogator sat on the revolving chair and used pen camera for recording. The face of the Interrogator is clear in the CD but the face of the accused is not clear.
(iii) The first part of the CD is 5 minutes and 36 seconds and location is Tadipal Room of Worli Police Station and the second part of the C.D. is from Ward No. 7 as J.J. Hospital.
(iv) ........
(v) Hasan Ali was arrested in a forged Passport case, Shri Deshbhratar (applicant) during his interrogation has never asked question about the Passport case. He asked unrelated questions regarding appointment of Commissioner of Police, Mumbai and involvement of political leaders etc. 8
(vi)......
(vii).......
15. It is pointed out by Shri Masurkar, that the Respondents had isued Annexure A.I order of promotion on the basis of the recommendation made by the Screening Committee. It is true that the Government had ordered C.I.D. enquiry into the episode when the issue relating to the Press Conference held by the applicant before the Print and Electronic media was raised before the Legislative Assembly. The issue had created in a big ruckus in the Legislative assembly and therefore, the Government wanted to get an enquiry conducted to find out the truth. Learned Counsel submits that the enquiry revealed very grave omissions and commissions on the part of the applicant who is a senior I.P.S. Officer. The enquiry has brought out several startling revelations which may not be necessary to be divulged at this stage.
16. He further submits that the grievance of the applicant as projected in the Original Application is totally misconceived. Though he has contended that several of his juniors have been promoted, he has not produced any documentary proof to substantiate the above contention. It is true that some of the officers in his Batch who were found fit for promotion have been promoted.
17. Shri R.R.Shetty Learned Counsel for the applicant, has invited our attention to the following judgements rendered by the Apex Court in support of his contention that promotion could not have been denied to the 9 applicant on the ground that a C.I.D. enquiry was pending against him.
18. In Union of India vs. Sangram Keshari Nayak 2007 (2) sCC (L&S) 587 the question that arose for consideration was whether sealed cover procedure could have been adopted when no chargesheet was pending against the employee at the time when his turn for promotion came and the D.P.C. met to finalise the Panel of promotees. Admittedly the name of the respondent employee was included in the panel for promotion by the Departmental Promotion Committee. But he was not promoted on the ground that Vigilance case was pending against him and therefore, the recommendation of the D.P.C. was "deemed to have been placed in a sealed cover." The junior of the respondent employee was however promoted. Their Lordships held that the authorities could not have adopted such a procedure especially since the D.P.C. had included the name of the respondent employee in the Panel after finding him fit for promotion. The above decision in our view, is not relevant in the facts and circumstances of the case at hand.
19. In Coal India Ltd. and Ors. vs. Sarojkumar Mishra 2008 (2) SCC (L&S) 321 the question that came up for consideration was whether the respondent employee was rightly denied vigilance clearance when the time the DPC Meeting held in 1999. After referring to the various clauses in the relevant O.M., their Lordships held that in the facts and circumstances of the case the rules operating in the field must necessarily have been 10 considered in the light of the constitutional scheme of equality. It was further held that Vigilance Clearance could have been withheld only if a chargesheet had been issued and disciplinary proceedings were pending. This decision also in our view, will not come to the aid of the applicant.
20. Shri V.S.Masurkar, has also placed reliance to an order passed by this Tribunal in o.A.No. 523/2010 and also the decision of the Apex Court in UOI vs. Kewal Kumar 1993 (3) SCC 204.
21. We do not propose to deal with the above judgements cited before us by Learned Counsel on both sides elaborately since in our view the issue invovled in this case falls on a totally different footing.
22. Having regard to the entire facts and circumstances of the case, we have no hesitation to hold that there is no merit in any of the contentions raised by the applicant. The question posed for consideration is answered in the negative.
23. The Original Application is dismissed. Parties to bear their costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J) sj*