Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary To ... on 23 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO. 348-HR of 2012
Chandigarh, this the day of August , 2012
CORAM:HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J)
HONBLE MR. RANBIR SINGH, MEMBER(A)
Hukum Singh, aged 58 years, s/o Sh. Prehalad Singh, R/o House No. 995, Gali No.12, Jawahar Nagar, Hisar (Haryana)..
APPLICANT
BY ADVOCATE: SHRI R.K. SHARMA
VERSUS
1. Union of India through the Secretary to Government of India, Ministry of Home Affairs, New Delhi.
2. Union Public Service Commission, Dholpur House, Shahjan Road, New Delhi through its Secretary.
3. State of Haryana through the Financial Commissioner and Secretary to Govt. of Haryana, Haryana Civil Secretariat, Chandigarh.
RESPONDENTS
BY ADVOCATE: SH. DEEPAK AGNIHOTRI, FOR RESPONDENT NO.1.
SH. B.B. SHARMA, FOR RESPONDENT NO.2
SH. NARENDER SINGH, FOR RESPODNENT NO.3
ORDER
HONBLE MR. RANBIR SINGH, MEMBER(A):-
It is undisputed that the applicant was an officer of the State Police Service of Haryana cadre, who was, placed at Sl. No. 1 in the Select List of 2006 for promotion to the Indian Police Service (IPS) vide notification no. 1-14011/02/2011-IPS.I(ii) dated 29.03.2012. He was retired from the State Police Service on 30.6.2011. However, orders were not issued for his promotion to the IPS.
2. The relief sought in this O.A. is as follows:-
i) Issue direction to the respondent no.1 to issue notification of appointment of the applicant to IPS against promotion quota of Haryana Cadre against the vacancies of 2006 w.e.f. 01.01.2006 due date with further directions to the respondent no.3 to allow the applicant to join duties as an IPS officer with all the consequential benefit, including arrears of pay and allowances, seniority, etc.
3. The grounds taken for the relief sought with legal provisions taken in the O.A. are as follows:-
I) That the insistence by the respondents that one must be in active service for being offered appointment as IPS is without any logic or reason inasmuch as when the meeting was not held earlier due to fault of the department and was held subsequently qua the vacancies of earlier years, the eligibility, suitability and entitlement for promotion of State Police Service Officer has to be seen on the relevant date/year and not with reference to the date of meeting of DPC or recommendation thereof. Thus, the respondents are mis- interpreting the provisions of the regulations and as such their action stands vitiated.
II) That it is well settled law that provision of statute has to be read harmoniously so as to give proper effect to the same. In Anwar Hasan Khan Vs. Mohd. Shafi (2001) 8 SCC 540, it has been held that:
For interpreting a particular provision of an Act, the important and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The state or rules made there under should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provisions to a ?dead letter? Is not harmonious construction. Thus, the interpretation given by the respondents to the statutes in a most clerical and technical manner without application of mind is not warranted at all and as such action of respondents stands vitiated.
III) That the objection taken by the respondents for denying the benefit of promotion to applicant is not tenable in the eyes of law as it is the respondents who did not conduct the meeting of the Selection Committee in time. Had the meeting been held in time as per rules and law, applicant would have definitely got promotion at that relevant point of time. The respondents cannot taken benefit of their own fault to the prejudice of the applicant. The position has to be seen at the relevant time when applicant was due to promotion and not at the time when he was actually considered and approved for appointment.
IV) That Regulations even otherwise do not mention that members of State Police Service is to be appointed to IPS, who has expressed his willingness to be appointed to the service. There is no provision in such Regulations that if a member of service who is entitled to promotion from a retrospective date, but has retired, is not entitled to induction into IPS. If by fault of department, delay was caused and meanwhile applicant retired, respondents cannot be allowed to turn around and say that in the absence of any willingness, applicant could not be appointed from back date. The rules provide that one can be appointed to OPS out of select list.
V) That in this case, the concept of deeming fiction has to be adopted and once the respondents have recognized the right of the applicant for his consideration and promotion against the vacancies of 2006, he cannot be denied benefit of the same merely because he stands retired from State Police Service on attaining the age of 58 years as had the applicant been given promotion from due date, he was to retire on attaining the age of superannuation of 60 years and not 58 years.
VI) That the issue is no longer res integra and stands settled by this Honble Tribunal as well as by the Honble Punjab & Haryana High court. Honble High Court in Chaman Lal Kalkanpal Vs. Union Public Service Commission & Others. , 1998 (3) SLR, Page 436 has held that an officer, even if he was approached the date of retirement, had a right to be considered with effect from the due date and on being found suitable, he could be fictionally granted the relief which has been denied to him for no fault of his and relief could not be denied to him merely because the Section Committee had not met. The department cannot take advantage of its own wrong. The wrong done to the petitioner can only be remedied by one method viz., directing the respondents to do the needful on the hypothesis that he was in service at the relevant time. Thus, the claim of the applicant, is fully covered by the said decision.
VII) That similar view has been taken by this Honble Tribunal in the case of Maya Ram (Supra) and Saroj Panwar (Supra), as upheld by the Honble High Court in CWP NO. 20093 of 2008, decided on 14.1.2009, O.A. No. 317/JK/2011, decided on 31.5.2011 (Supra) and Lajvir Ssingh (Supra). Thus, the case of the applicant merits acceptance.
VIII) That even otherwise, if we go by the understanding of the respondents, which is otherwise against the spirit of the rules and the regulations, the applicant will be nowhere w.e.f. 1.7.2011 till appointment to IPS, which cannot be the intention of the framers of the regulations. It is for this reason that appointment to All India Service has to relate to the date of vacancy. A Similar interpretation arose in the case of an IAS officer namely Sh. Hans Raj Gangar and by intervention of this Honble Tribunal, the respondents have been directed to ante date the date of appointment so as to retain the continuity of service between the State Service and IAS as similar Notification been issued by the govt. of India in his case also.
IX) That thus, the action of the respondents is illegal, arbitrary, discriminatory, violative of articles 14 and 16 of the Constitution of India, void ab initio, harsh, and cannot be sustained in the eyes of law.
4. Respondents No. 1 & 3 have filed separate reply statements. Respondent No. 2 chooses not to defend this case independently.
5. Respondent nol.3 contends that this matter is within domain of respondent no.1. Respondent no.1 has stated that a meeting of the Selection Committee for preparation of year wise select list of the years 2006, 2007, 2008, 2009 and 2010 for appointment to the Indian Police Service by promotion from Haryana Police Service was convened by the UPSC on 21.12.2011. The number of vacancies for the year-wise Select List were determined to be 1, Nil, Nil, 2 and 8 respectively. Since, there were nil vacancies for the year 2007 and 2008, no Select Lists were required to be prepared for these years in terms of Regulation 5(1) of the IPS (Appointment by Promotion) Regulations, 1955. The name of the applicant was included in the zone of consideration for the year 2006 at Sl. No. 2. The Selection Committee, after making over all relative assessment of service records of all the officers in the zone of consideration recommended the inclusion of the applicants name in the Select List of 2006 at Sl. No. 1. The UPSC approved the recommendations of the selection committee on 20.3.2012. Subsequently, Respondent no.1 issued a year wise select list through notification no. 1-14011/2/2011-IPS-I)I) dated 29.3.2011. All the officers included in those year wise select lists, except the applicant, were appointed to the IPS by promotion on the same date through notification no. I-14011/2/2011-IPS-I(II).
6. Respondent nol.1 has further contended that the applicant ceased to be a member of the State Police Service with effect from 30.6.2011. Therefore, he became ineligible for appointment to the Indian Police Service by promotion after that date, even if his name was included in the Select List of 2006. The Central Govt. does not have the powers to appoint the applicant to the IPS by promotion after that date. Respondent no.1 has also pointed out that the select list was valid for appointments only up to 18.5.2012. The Central Govt. ceases to have powers to make appointments from those select lists after that date.
7. We have heard the learned counsel for the parties and perused the pleadings.
8. The learned counsel for the applicant has placed reliance on the Judgment rendered by the Apex Court in the case of State of U.P. Vs. Ram Swarup Saroj reported as ATJ 2000(2) 228.
9. After having heard the learned counsel for the parties and gone through the facts and circumstances of this case, and the case law cited by the respective parties, we find that the facts of the present case are squarely covered by a decision rendered by a Bench of this Tribunal in O.A. NO. 317/JK/2011- Prabhat Singh Vs. Union of India & Ors. decided on 31.5.2011. In the said case reliance was placed by the Bench on the following decisions:-
1. C.L. Lakhanpal Vs. UPSC: 1998 (3) SLR 436;
2. Maya Ram Vs. UOI & Others: O.A. No. 899-HR-2005 decided on 13.12.2005; and
3. Saroj Panwar & ors. Vs. Union of India & Ors (Supra).
10. It was held in the case of Prabhat Singh Vs. UOI & Ors. (Supra) in paras 7,8 & 9 as under:-
7. In that case, it was held that the officer had a right to be considered with effect from the due date and, on being found suitable, he could be validly granted the relief. It was also observed, in the course of that order, that the department could not be allowed to take advantage of its own wrong by raising a plea that the applicant therein could not be considered for promotion as he had retired in the meantime.
8. In the present case, the position that has surfaced is that though the applicant was at Sr. No. 1 in the zone of consideration for the relevant appointment, by promotion, the consideration could not come about as no Selection Committee meeting were held for a number of years. The non-convening of the meeting of the Selection Committee is an act solely attributable to the U.P.S.C. and no blame therefore attaches to the applicant. Since he was eligible for consideration at the relevant point of time, the non-
convening of the Selection Committee meeting cannot visit him with adverse consequences.
9. In the light of the foregoing discussion, we would allow this O.A, by holding that the applicant herein was entitled to be considered for appointment, by promotion, to the Indian Police Service against the vacancies avail able for the year 2007. The deletion of his name from the list, vide letter dated 30.3.2011, shall stand quashed. The respondents are, accordingly, directed to consider the appointment for appointment, by promotion, to the IPS against the vacancies available for the year 2007. The applicant shall also be entitled to the benefits (monetary and service-related as well), flowing therefrom.
11. In the light of the above, the present O.A. is allowed with a direction to respondent no. 1 to notify the appointment of the applicant herein to the IPS against promotion quota for the vacancies of Haryana cadre for the year 2006 as per the Select List of that year, approved by the UPSC, with all consequential benefits from the due date, not later than date from which appointment of his immediate junior to the IPS has been notified. This exercise should be completed within a period of three months from the date of receipt of a copy of this order. No costs.
(RANBIR SINGH) MEMBER(A) (JUSTICE S.D.ANAND) MEMBER(J) Dated: August 23rd , 2012 `SK 2 (OA No.348-HR-2012 )