Central Administrative Tribunal - Madras
G. Veeraraghavan, I.P.S. vs State Of Tamil Nadu And Anr. on 15 April, 1999
JUDGMENT
K.S. Uakthavatsalam, Vice-Chairman
1. The applicant has come up before this Tribunal challenging the orders dated 13.8.97 and to set aside the order dated 16.10.98 of the first respondent and also seeks a direction to the first respondent to promote the applicant as Director General of Police with effect from 1.8.97 with all consequential benefits including seniority over the second respondent.
2. The facts of the case which led to the filing of this application are; The applicant belongs to the 1965 batch of I.P.S. Officers in Tamil Nadu and he is the senior most among the 3 senior officers of the 3965 batch. A vacancy in the post of Director General of Police arose consequent on the retirement of Mr. Walter Issac Devaram on 31.7.1997 and on that day itself, the applicant made a representation to the first respondent stating that he should be considered for promotion to the said vacancy. The applicant also refers to the Orders of the Government of India and instructions of the Government of India with regard to the procedure for promotion. The Screening Committee considered the case of the officers for promotion to the post of Director General of Police which met on 13.8.1997. The Screening Committee considered the facts especially according to the applicant a criminal case which was registered against the applicant, recommended his case should be kept in a sealed cover. Consequently, the second respondent was promoted and posted as Director General of Police. Aggrieved by this order, the applicant filed O.A. 1101 of 1997 before this Tribunal and this Tribunal after hearing the parties allowed the O.A. by order dated 17.8.98 in the following terms:
"In view of that, instead of the prayer asked for, we direct the official respondent to open the sealed cover pertaining to promotion of the applicant to the post of Director General of Police in pursuance of the recommendations of the Screening Committee which met on 13.8.1997. Further, in case the recommendation of the Screening Committee is in his favour, we direct the official respondent that the applicant be promoted retrospectively from the date his immediate junior had been promoted and pay the salary and allowances to the applicant. We further direct that the applicant is entitled to consequential benefits, like seniority and fixation of pay. This may be done within a period of two months from the date of receipt of a copy of this order."
Thereupon, the impugned order dated 16.10.1998 has been passed, under which the applicant has been told that according to the directions of this Tribunal, the sealed cover containing the findings of the Screening Committee has assessed the suitability without taking into consideration the criminal cases pending against the applicant and that it had assessed him 'Unfit' for promotion. It further stated that in view of the assessment of the Screening Committee, the Government consider that it is not possible to promote the applicant to the rank of Director General of Police. This is under challenge before us.
3. The applicant avers in the application that the action of the respondent is arbitrary, illegal and violative of Articles 14 and 16 of the Constitution. It is pointed out by the applicant that in the reply filed by the official respondent in O.A. 1101/97 the Government made a statement in the following terms.
"On 13.8.1997, when the Screening Committee met to consider the promotion of the applicant and others, it was brought to the notice of the Committee that a criminal case has been registered against the applicant. However, the decision of the Committee to keep its recommendation in a sealed cover is based on the performance record and the integrity of the Applicant and the Screening Committee procedure is strictly in accordance with the Government of India instructions in force then."
Referring to the statement, it is stated in the application that the recommendation of the Screening Committee was based on the performance record and integrity of the Applicant and therefore, it is clear that the Screening Committee took into account the criminal case registered against the applicant and consequently their action is illegal. It is also pointed out in the application that the in the instant case, inasmuch as the pendency of these proceedings have been taken into account and the integrity of the applicant has been judged on that basis, the procedure adopted by the Screening Committee is illegal and liable to be set aside. According to the applicant, it is well settled by various judgments as well as the instructions of the Government of India issued from time to time that in case of an officer who is facing a charge memo or a criminal case pending is not to be taken into account in any manner and should not influence the recommendations of the Committee. It is also pointed in the application that so far as the applicant is concerned, he was promoted as Additional Director General of Police and was posted as Additional Director General of Police (Headquarters). The applicant claims in his application that for the period from 23.10.93 and 31.3.94 the applicant has received outstanding report for the period. For the period from 1.4.94 to 31.3.95 he has received outstanding report. For the period from 1.4.95 to 30.9.95 the applicant continued as Additional Director General of Police, Headquarters and for the period 30.9.95 to 18.7.96 the applicant was working as Commissioner of Police. The applicant further states that for the period from 1.4.1995 to 18.7.1996, he has received outstanding Report and even when he was working as Chairman of the Pallavan Transport Corporation, the applicant has received outstanding report. Thereafter, it is stated that on 17.6.97 the applicant was transferred as Additional Director General of Police, Uniformed Services Recruitment Board till 22.8.97 the applicant was placed under suspension. It is the case of the applicant that for the entire period after promotion as Additional Director General of Police, he has received only outstanding reports and there is no possibility of the Screening Committee coming to the conclusion that the applicant was unfit for promotion to the post of Director General of Police unless it has taken into account the pendency of the registration of the criminal case and on that basis doubted the integrity of the applicant. It is stated that the procedure adopted by the Screening Committee is totally illegal and consequently the non-promotion of the applicant is illegal. It is also pointed out in the application that in O.A. 1104/97 when the applicant challenged the promotion of the second respondent, the Home Secretary filed a counter affidavit and (the Home Secretary was a Member of the Screening Committee) which assessed the performance of all the Additional Director General of Police. It is the case of the applicant that had not been found fit for promotion by the Screening Committee in which the Home Secretary was a Member in the counter affidavit filed by the Home Secretary in O.A. 1104/97 though he has to mention that the applicant had been found not fit for the post of Director General of Police. On the other hand it is stated by the Home Secretary that the performance of the applicant was taken into account as well as the fact that he was facing a criminal investigation and on that basis, the Screening Committee assessed and graded the applicant. So it is contended that the entire finding of the Screening Committee is erroneous, arbitrary and perverse and consequently, the impugned order is liable to be set aside. The applicant prays the Tribunal to call for the service records of the applicant to see if there are any remarks to justify the gradation of not fit, especially in comparison with the service records of the second respondent. In such circumstances the applicant states that the gradation of the applicant as unfit is totally perverse, arbitrary and consequently the applicant is liable to be promoted to the post of Director General of Police with effect from 13.8.97.
4. A reply affidavit has been filed by the first respondent. It is stated in the reply that consequent on the retirement Thiru W.I. Davaram, a vacancy in the rank of Director General of Police arose on 31.7.97. The applicant preferred a representation on 31.7.97 through the Director General of Police, requesting to promote him as Director General of Police, with effect from 31.7.97. The Departmental Promotion Committee met on 13.8.97 and considered the names of the following officers for empanelment for promotion.
(i) E. Hariharane, IPS (RR1963) (ii) G. Veeraraghavan, IPS (RR 1965) (iii) A. Ravindranath, IPS (RR 1965) (iv) Dr. R. Rajagopalan, IPC (RR 1965)
In the reply it is stated that it was specifically brought to the notice of the said Committee that there are adverse remarks in the personal file of the applicant, i.e. Annual Confidential Report for the period from 1.4.86 to 31.3.87 that his integrity has not been certified during the period from 1.4.92 to 10.1.93, that the Crime Branch CID had registered criminal cases on 16.9.96 against the applicant and 8 others in Crime No. 34/96 under Section 120-B read with Sections 109 and 409 IPC and under Section 13(2) read with Section 13(1 )(c) and (d) of the Prevention of Corruption Act, 1988 for having shown favouritism to a particular firm in placing orders for supply of certain fire fighting equipments during the applicants tenure as Director of Fire Service, which enabled the firm to obtain a pecuniary advantage to the tune of several lakhs of Rupees and that the Crime Branch CID after due investigation had requested the Government to accord sanction to prosecute the applicant and others. It is further stated that the Departmental Promotion Committee assessed the suitability of the applicant along with other eligible officers, without taking into consideration the criminal case registered against the applicant and after considering the record of performance of this officers ability and merit to hold apex post and also his integrity which has not been certified, assessed him as unfit for promotion to the rank of Director General of Police. This procedure, according to the first respondent is as per the Government of India's instructions dated 8.11.93 as accepted by the State Government in G.O. Ms. No. 968, Home (SC) Department, dated 22.8.94. So it has been categorically denied in the reply that the contention of the applicant that there is violation of existing instructions. It is also stated that in Cr. No. 34/96 the applicant was arrested by the Crime Branch, CID on 27.8.97 at his residence and remanded to judicial custody and released on 22.1.97. It is also pointed out that in G.O. Ms. No. 1274, Home (SC) Department, dated 3.9.97, the Government ordered that the applicant is deemed to have been placed under suspension on and from 27.8.97 in exercise of the powers conferred by Rule 3(2) of the All India Services (Discipline and Appeal) Rules, 1969. It is further pointed out that the investigation in this case is over and the State Government have accorded sanction to prosecute the applicant and others under Section 197(1)(b) of the Criminal Procedure Code and the Government of India have been addressed to accord sanction under Section 19(1)(c) of the Prevention of Corruption Act, 1988. It is stated in the reply that this Tribunal earlier in O.A. 1101/97 directed the official respondent to open the sealed cover and act upon it. Accordingly the sealed cover was opened and the applicant was informed. It is also pointed out that the Departmental Promotion Committee had adopted the procedure prescribed by the Government and the impugned order has not violated any law. The averments made by the applicant regarding his performance ratings during the period from 23.10.93 to 31.3.94, from 1.4.94 to 31.3.95 and from 1.10.95 to 31.3.96 are contrary to the facts.
5. A rejoinder has been filed by the applicant. In the rejoinder it is stated that when the DPC met it was brought to the notice of the DPC that there were adverse remarks in the personal file of the applicant for the period from 1.4.86 to 31.3.87 and for the period from 1.4.92 to 10.1.93 and that the Crime Branch CID had registered criminal cases on 16.9.96 against the applicant and 8 others. It is further stated in the rejoinder that when the DPC assessed the suitability of the applicant without taking into consideration the criminal cases registered against the applicant and the criminal prosecution contemplated against him and therefore assessed him unfit for promotion to the rank of Director General of Police are all misconceived. So it is stated that the third reason given that a criminal case has been registered and criminal prosecution was contemplated is no longer relevant for the purpose of assessing suitability of the applicant. With regard to the other two reasons, in the rejoinder it is staled that the adverse remark in the annual confidential report for the period from 1.4.86 to 31.3.87 should not have been taken into account by the DPC for the reason that the said adverse remarks was not communicated to the applicant and under Rule 8 of the All India Services (Confidential Rolls) Rules, 1970 which is a statutory in character having been made under All India Services Act, where a confidential report of a Board contains an adverse remark it should have been communicated to the applicant. It is stated in the rejoinder that in the instant case, the adverse remarks was not communicated even till date. The applicant further states that the Supreme Court has taken a view that where adverse remarks are not communicated, they cannot be taken into account for the purpose of denying promotion or assessing the suitability of an officer for promotion. With regard to the adverse remarks for the period from 1.4.86 to 31.3.87 the proceedings of the Committee is illegal and arbitrary because the Committee met in August, 1997 and therefore, should not have taken into account a remark which was over 10 years old and such remarks being stable ought not to have weighed with the Committee for assessing the suitability of the applicant. However, it is stated in the rejoinder in respect of the adverse remarks for the period from 1.4.86 to 31.3.87 when the applicant was a Deputy Inspector General of Police, the applicant was considered and found fit for promotion to the post of Inspector General of Police in 1990 and thereafter found fit and promoted to the post of Additional Director Genera! of Police in October, 1993. Thus when two promotions have already taken place, an adverse remark made before the promotions cannot be taken into account for the purpose of assessing the suitability of the applicant for promotion from the post of Additional Director General of Police to the post of Director General of Police. It is pointed out in the rejoinder with regard to the other reason i.e. the integrity had not been certified during the period from 1.4.92 to 10.1.93, that this fact ought not have been taken into account because in spite of the non-certification of integrity for a prior period from 1.4.1992 to 10.3.93, in May 1994 the applicant was promoted as Additional Director General of Police with effect from 23.10.1993 based on the recommendations of the DPC which met in October 1993 and which found the applicant fit for promotion to the post of Additional Director General of Police. As such it is stated by the applicant that the non-certification of integrity for a prior period when promotion has already been awarded cannot be taken into account. The applicant refers in the rejoinder the detailed instructions on the certification of integrity of an officer and these instructions are incorporated in the rejoinder. It is pointed out that there is decision of the Government of India on Rule 8 which has been issued on 9.8.1997 which clearly states that an adverse remark about the integrity should also be communicated, therefore, the applicant submits that if the integrity had not been certified for the period from 1.4.1992 to 10.1.93, the instruction ought to have been followed and an entry should have been made on integrity in the confidential report and if this entry had been adverse in nature, the same should have been communicated to the applicant. As such the case of the applicant is that since the ad verse remarks on integrity has not been communicated to the applicant till date, the other reason is also misconceived. It is also submitted by the applicant that in the earlier application in O.A. 1101/97, the Home Secretary who has filed the reply affidavit, never took the stand that the applicant had not been found fit by the DPC. In fact, it is vaguely stated that the Committee had strictly followed the procedures prescribed by the Government of India. According to the applicant, the applicant's record of service has been outstanding or very good after the promotion of the Additional Director General of Police on 23.10.1993 and therefore, only these reports should have been taken into account for the purpose of assessing the applicant's suitability for promotion to the post of Director General of Police.
6. The official respondent has filed an additional reply. It is stated in the additional reply that the three factors stated in paragraph 2 of the rejoinder had been brought to the notice of the Committee which assessed the suitability after considering the overall record of performance, applicant's ability and merit to hold the apex post and also his integrity. It is stated that the post of Director General of Police is an apex post in the Police Department and hence the Committee has to consider the applicant's ability to hold the apex post with reference to his overall performance, merit and integrity. It is pointed out that the points mentioned by the applicant in the rejoinder in paragraphs A, B and C in paragraph 2 are the facts brought to the notice of the Departmental Promotion Committee and the point B is the fact taken into consideration in the overall performance of the applicant. It further stated that the Committee has taken into consideration the remarks relating to his integrity which has been recorded by the competent authority in view of the ongoing vigilance enquiry against the applicant. It is also stated in the additional reply that it is only the subjective satisfaction of the authority concerned to make note about the integrity of the applicant concerned which has been recorded in the annual confidential report and the said remark has not assumed the character of adverse remarks so as to communicate it to the applicant. With regard to the contention that the applicant was promoted as Inspector General of Police and Additional Director General of Police it is stated in the additional reply that the applicant was promoted as Inspector General of Police on 11.12.1988. Since the adverse remarks have not been taken into account even at that time, he was promoted as Additional Director General of Police on 23.10.93. It is pointed out that the post of additional Director General of Police was not a cadre post under the IPS (Cadre) Rules, 1954 and the post of Additional Director General of Police were considered ex-cadre posts and were created by the State Government and were shown against the quota allotted for the State Deputation Reserve. As such the posts of Additional Director General of Police do not come under the IPS (Cadre) Rules, 1954 and there were no guidelines of the Government of India for promoting an IGP level officer to the post of Additional Director General of Police. In the absence of any specific guidelines of the Government of India for promotion to the rank of Additional Director General of Police, the State Government felt that officers who had put in 27 years of service in the IPS and 3 years of service as IGP may be considered for promotion to the rank of Additional Director General of Police. As there was no guidelines of the Government of India requiring the Constitution of a Committee for considering officers for the post of Additional Director General of Police, no Screening Committee Meeting was convened for promotion of IGP level officers to the Additional Director General of Police post. Only recently, the Government of India have issued separate guidelines for promotion of IGP level officers to the ADGP level. So it is stated that the applicant has no case and basis to contend that during the currency of the adverse remarks he has earned two promotions. It is further stated in the additional reply that the DPC while considering the applicant for promotion to the apex post has to assess his suitability not only with reference to his overall record of performance, ability to hold the apex post, merit, but also taken into account his integrity. It is admitted that the integrity of the applicant for the period from 1.4.92 to 10.1.93 has not been certified. It is stated that in view of the ongoing detailed enquiry against the applicant by the Directorate of Vigilance and Anti-Corruption the doubtfulness about his integrity could not be cleared in view of the gravity and magnitude of the charges levelled against the applicant. It is also pointed out that the Directorate of Vigilance and Anti-corruption conducted a detailed enquiry against the applicant on certain allegations relating to certain irregularities committed by him during the course of purchase of fire fighting equipments to the Fire Service Department. The Directorate of Vigilance and Anti Corruption submitted its detailed enquiry report to tbe Government on 31.1.1995 and the Government after examining the detailed enquiry report, entrusted the case to the CB CID for initiating criminal proceedings under the Prevention of Corruption Act, 1988 on 12.9.96. The CB CID registered a criminal case in Cr. No. 34/96 under Section 120-B read with Sections 109 and 409 IPC and Section 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. It is also pointed out that the applicant was arrested by the Crime Branch, CID on 27.8.97 at his residence and was released on bail by the High Court on 22.10.97. It is also pointed out that the Government of India has accorded sanction to prosecute the applicant on 28.1.99 and the State Government accorded sanction to prosecute the applicant on 30.6.98. In view of the facts narrated above the integrity of the applicant cannot be certified, even on date. The non-certification of the integrity of the applicant continues to operate. It is further pointed out that the applicant's integrity has not been cleared so far in view of the sanction accorded for prosecution by the State and Central Governments in criminal cases registered against him. It is clearly stated that the doubtfulness or suspicion of integrity recorded in 1993 is being followed. With regard to the communication of adverse remarks about the integrity of the applicant it wilt arise only after the doubts about the integrity have been confirmed. It is pointed out that the remarks about the integrity of the applicant has not resulted in adverse remarks for being communicated but has resulted in criminal proceedings as stated in the additional reply. It is stated that the non-certification of the integrity which arose during the period ended 10.1.93 continues to prevail till date because of the eventual facts stated above. It is further pointed out that unless and until the doubts about the applicant's integrity is cleared, the integrity of the applicant cannot be certified. It is also stated in the additional reply that the statement of factual details in the reply affidavit of the respondent in O.A. No. 1101 of 1997 has been misquoted by the applicant as the findings of the Committee has not been influenced by the above facts. As per the directions of the Tribunal the sealed cover containing the recommendation of the applicant was opened and acted upon. Now it contains the remark of the Committee and therefore, it is stated that the merits and demerits of the applicant for promotion contained in the sealed cover ought not to be mentioned in the earlier case. It is also pointed out after the promotion of the applicant as Additional Director General of Police, he has not earned any outstanding grade but earned only "good" and "very good" and only "very good" rating has been modified as "good" by the Reviewing Anthority for the period from 1.10.95 to 31.3.96. In fact it is stated that the records of personal files and annual confidential reports have been taken into account and the predominant factor of non-certification of the integrity of the applicant which found part of DPC proceedings and the same is recorded as the reasons for the applicant being found unfit for promotion to the post of Director General of Police. It is stated that the applicant cannot be allowed to contend that the integrity component of service ought not to be taken into account while assessing the overall record of performance of the applicant to examine his ability to hold the apex post in the Police Department.
7. We have heard Mr. Vijay Narayan, learned counsel for the applicant and Mr. N.S. Nandakumar, learned counsel for the official respondent. The applicant carne up before this Tribunal earlier in O.A. No. 1101 of 1997 and by an order dated 17.8.98, the application was allowed on the short ground whether the official respondent can not adopt sealed cover procedure on the facts and circumstances of this case and after hearing both sides, a direction was given to the official respondent to open the sealed cover pertaining to the promotion of the applicant in pursuance of the recommendations of the Screening Committee which met on 13.8.97 and to act according to the report of the Screening Committee. We have made it clear that in case the recommendation of the Screening Committee is in his favour, the official respondent is directed to promote the applicant retrospectively, etc. This exercise has been done by the respondent and the order is passed on 16.10.98. The applicant not satisfied with this, thought fit to challenge this order also as we have stated above.
8. We have called for the entire records, the Annual Confidential Report files and we have gone through it, carefully.
9. Mr. Vijay Narayan, learned counsel for the applicant contended that the two objections raised by the applicant are, one is about the adverse remarks for the year 1986-87, i.e. for the period from 1.4.86 to 31.3.87 and the other is the non-certification of integrity for the period from 1.4.92 to 10.1.93. According to the learned counsel for the applicant the annual confidential report which is considered by the Screening Committee cannot be done as the adverse remarks has not been communicated to the applicant as subsequent to that period he was found fit for promotion to the post of Inspector General of Police and thereafter as Additional Director General of Police in October, 1993. As such the adverse remarks has not been communicated to the applicant and hence that cannot be put against the applicant to deny the promotion. According to the learned counsel, when there was process for selection for Additional Director General of Police post and the applicant was promoted in October 1993 and if the integrity has not been certified for the period from 1.4.92 to 10.3.93, the applicant could not have been considered for the promotion of Additional Director General of Police. The learned counsel for the applicant states that the service records of previous 5 years has been looked into, especially when the DPC met on 12.8.97 and if the service records looked into the applicant has got a clear record and the applicant cannot be denied promotion as Director General of Police.
10. Per contra, the learned counsel appearing for the official respondent contends that it is true that the adverse remarks was not communicated to the applicant for the period from 1.4.86 to 31.3.87 but that was not taken into account by the DPC. As the enquiry had started even as early as in 1992, the integrity of the applicant has not been cleared in 1993, the overall performance of the applicant has been considered by the Committee, though the merit and ability are good, the integrity is not cleared as the applicant was not promoted to the post of Additional Director General of Police. The learned counsel for the official respondent relies upon para 8.1 of the additional reply and contends that the procedure has been strickly followed, in this case the applicant's integrity has not been cleared so far in view of the sanction accorded by the State and Central Governments for prosecution of the applicant, the doubtfulness or suspicion of integrity recorded in 1993 is being followed.
11. We have considered the arguments of the learned counsel for the applicant Mr. Vijay Narayan and Mr. N.S. Nandakumar learned counsel for the official respondent. We have also perused the files produced by the learned counsel for the official respondent.
12. The Revised Guidelines for promotion to Senior Scale, Junior Administrative Grade, etc. in the Indian Police Service are found in G.O.Ms. No. 2760, Home (Pol. I) Department, Government of Tamil Nadu, dated 23.12.1988. The zone of consideration for promotion to the grade of DG and IGP is Inspector General of Police, who have put in at least 3 years of service in that rank and have completed 30 years of service in the Indian Police Service. The method of selection is based on merit with due regard to seniority as provided in sub-rule 2A of Rule (3) of the Indian Police Service (Pay) Rules, 1954. Paragraph C (ii) of G.O.Ms. No. 2760, dated 23.12.1988 reads as follows :
"Suitability of officers to hold supertime scale posts may be judged by evaluating their character roll record as a whole, and general assessment of their work."
So according to the learned counsel, the overall character roll record as a whole was considered and has been evaluated and it was found that the applicant was unfit. We have gone through the findings of the Screening Committee regarding suitability of the applicant for promotion to the post of Director General of Police. The Committee has stated as follows:
"The Committee assessed the suitability of Tr. G. Veeraraghavan, IPS for promotion without taking into consideration the criminal cases pending against him. His spoken reputation is reported to be bad. Considering the record of performance of this officer's ability, and merit and also his integrity which cannot be certified, the Committee assessed him as 'UNFIT' for promotion."
From the records it has been found act that the pendency of the criminal proceedings is not taken into account by the Screening Committee. It is also admitted by the learned counsel for the respondent that the adverse remarks made in 1986-87 cannot be taken into account as it had not been communicated to the applicant and the applicant was also promoted to IGP in 1990. The only point which remains for consideration is the integrity of the officer-applicant. The question that when the sealed cover procedure has been resorted to has been considered by the Supreme Court in Union of India v. K.V. Jankiraman (1993 SCC (L and S) 387). It has been held that the sealed cover procedure can be adopted only after the date of issuance of charge sheet, that being the date from which criminal proceedings can be taken to have been initiated. It is also pointed out that the sealed cover procedure can also be adopted where the employee is placed under suspension. It has been held by the Supreme Court at page 400 as follows:
"An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests."
The Supreme Court in Parvez Quadir v. Union of India (AIR 1975 SC 446) has considered the scope of Regulation 5 of the Indian Forest Service (Initial Recruitment) Regulations, 1966 and while considering adjudgment of suitability held as follows:
"The adjudgment of suitability on the basis of the confidential entries and other records cannot be said to be arbitrary, and consequently regulation 5 is not invalid it is the duty of the Special Selection Board to prepare a list from amongst the State Forest Officers and such a list can only be prepared in order of seniority if the respective records of each of such officers assessed. The past performance of an officer being one of the criteria for making selection, the only way to adjudge their suitability is by perusal of confidential records. The method of selection based on past performance as disclosed by the confidential records can be considered as the proper method for adjudging suitability of the officer concerned. (1971) 2 SCR 55).
It cannot also be contended that Regulation 5 of the Initial Recruitment Regulations regarding adjudging of the suitability is not valid. The word 'suitability' itself is correlated with the object of recruitment, namely, that a person has to be considered suitable for appointment to a superior service which itself furnishes the norm that he is considered suitable having regard to his service in the State Forest Service. This is turn refers only to the past records of the service in the State as an officer of the State Forest Service. The Special Selection Board under Regulation 5(2)(a) has to adjudge the suitability of an officer from his service records which form the basis of the preparation of the list and the list so prepared after consideration of the records would reflect the overall assessment of the officers of the State Forest Service. The criteria laid down in the rules and regulations on this aspect to provide sufficient indication as to the norms applicable for adjudging suitability, namely, the past performance of the officer as can be gleaned from his confidential and other records if they exist in respect of that officer."
The Supreme Court in Gurdial Singh v. State of Punjab (AIR 1979 SC 1622) has held at paras 15, 16 and 17 as follows:
"15. In so far as the non-issuance of the integrity certificate is concerned, it is undisputed that its only justification is the adverse report in the confidential roll of the appellant for the year 1966-67. The circumstance surrounding the adverse entry may therefore bear examination for seeing whether such preponderating importance could, on the facts to which we will immediately advert, be given to the particular entry."
16. The counter-affidavit filed on behalf of the Government of Punjab by Shri Phuman Singh, Under Secretary in the service department, shows that after the adverse remarks were communicated to the appellant, he submitted a representation requesting that the remarks be expunged. That representation was referred by the Government to Shri Sewa Singh, retired District and Sessions Judge, who had made the particular remarks. Shri Sewa Singh desired that the reference which was made to him by the Government should be routed through the High Court. The Government then made a reference to the High Court of Punjab and Haryana requesting it to obtain the comments of Shri Sewa Singh. The High Court replied that it was not its practice to call for comments of Distt. and Sessions Judges on the representation of an officer against whom adverse remarks were made. The High Court was once again requested by the Government that the Chief Justice and the Judges may communicate their views to the Government on the representation made by the appellant. As the High Court did not express its view, the Government asked the appellant to submit a detailed representation along with documentary evidence in order to show that the adverse entry was made mala fide as alleged by him. The appellant submitted his representation again on December 19, 1971, as desired by the Government. After a detailed examination of that representation, it was decided by the Government that since the comments of the Reporting Officer of the High Court on the representation made by the appellant were not available, which was necessary for the proper disposal of the representation, a suitable note may be placed on the appellant's character roll along with the confidential report for the year 1966-67. An attested copy of that note is annexed to Shri Phuman Singh's affidavit as annexure 1. After setting out the facts and circumstances narrated above, that note says that in the absence of necessary comments of the authority concerned, it was not possible for the Government to take any decision on the merits of the representation made by the appellant.
17. The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotion al opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on aconsideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult to support the non-issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of the integrity certificate to him."
It has been held by the Supreme Court in M.S. Bindra v. Union of India and Ors. (1998 (7) SCC 310) at para 1 page 317 as follows:
"While viewing this case from the next angle for judicial scrutiny, i.e., want of evidence of material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such aconclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "nemo firut repente turpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity," it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity."
In exercise of the powers conferred by Sub-section (4) of Section 3 of the All India Services Act, 1951, the Indian Police Service (Recruitment) Rules, 1954 are made by the Government of India. Rule 9 of the Indian Police Service (Recruitment) Rules provides for recruitment by promotion. In pursuance of Rule 7 of the Indian Police Service (Recruitment) Rules, 1954, the Central Government in consultation with the State Governments and the Union Public Service Commission make the Indian Police Service (Appointment by Competitive Examinations) Regulations, 1955. Rule 2 (b) of the Indian Police Service (Cadre) Rules, 1954 reas as follows :
"(b) Cadre Post' means any of the posts specified under item 1 of each Cadre in the schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955."
The strength of the cadre is found in the Indian Police Service (Cadre) Rules, 1954 under Sub-Rule (1) of Rule 4 and the strength and composition of each of the cadres constituted under Rule 3 is determined Sub Rule (2) of Rule 4 of the Indian Police Service (Cadre) Rules, 1954 reads as follows:
"The Central Government shall, at intervals of every three years, re-examine the strength and composition of each such cadre in consultation with the State Government or the State Government concerned and may make such alterations therein as it deems fit".
Under the Indian Police Service (Appointment by Promotion) Regulations, 1955, a Committee is constituted to make a selection. The Committee is to prepare a list of suitable officers. It is seen that the Government of India has issued instruction dated 5.1.1965. Paragraph 1.2 of the said instruction speaks of integrity.
"The Selection Committee should also consider the question of suitability of the officers for selection with reference to their integrity and should specifically record in their proceedings that they were satisfied from the remarks in the confidential reports of the officers selected by them for inclusion in the Select List that there was nothing against their integrity."
So unless there is anything against the integrity the officers cannot be excluded in the select list. At this stage, it is necessary for us to extract the assessment we found in the Annual Confidential Reports of the applicant.
"Extract of Assessment Report of Thiru G. Veeraraghavan, IPS. For the period from 23.10.1993 to 31.3.1997 Period from To Reporting Authority Reviewing Authority Accepting Authority 23.10.93 to 31.03.94 Very Good Very Good 01.04.94 to 31.03.95 Outstanding Very Good Very Good 01.04.95 to 26.04.95 Certificate 27.04.95 to 30.09.95 Certificate 01.10.95 to 31.03.96 Very Good Good Good 01.04.96 to 16.05.96 Certificate 17.05.96 to 21.07.96 Certificate 18.07.96 to 31.03.97 Very Good Very Good So we are not able to accept the contention of the learned counsel for the applicant that the ACRs are very good and outstanding for all the years which fall within the zone of consideration. We are not concerned with the submission of the learned counsel for the official respondent with regard to the proposed revised guidelines for promotion to Senior Grade and Selection Grade etc. as we are not concerned with the DPC met in 1997. We waded through the ACRs of the applicant for 1996-97 integrity is shown as beyond doubt, for 1995-96 integrity is shown as condition borne, for 1994-95 the integrity is seems to be no complaints and for 1993-94, it is shown as nothing adverse. For the period from 1.4.92 to 10.1.93.
The remarks is that the integrity of the applicant cannot be certified for the present. So, as the integrity of the applicant has not been certified in the year 1993, and as stated by the respondent's counsel, the character roll record as a whole has been considered and a general assessment of work is made, we are of the view that the impugned order cannot be assailed on any ground. The pre-dominant factor of non-certification of the integrity of the applicant is very much in relevant consideration, of course it is now ended up in a prosecution. So, we do not think that the applicant's counsel has been made out any case which calls for our interference. With regard to the contention that the applicant has been promoted to Additional Director General of Police in 1993, we think it is not an answer at all. So far as his integrity has not been clear and no Screening Committee was convened for promotion from IGP to ADGP post, it cannot be held that he has been promoted as ADGP. As rightly pointed out in the Additional reply at page 4, the post of ADGP is an ex-cadre post and was created by the State Government and was shown against the quota allotted for the State's Deputation Reserve. As such the posts of ADGPs do not come under the IPS (Cadre) Rules, 1954. With regard to the argument that ADGP post is an ex-cadre post, the Supreme Court in Chakradhar Paswan v. State of Bihar (1988(2) SCC 214=AIR 1988 SC 959) the Supreme Court has held as follows:
"8. In service jurisprudence, the term 'cadre' has a definite legal connotation. In the legal sense, the word 'cadre' is not synonymous with 'service.' Fundamental Rule 9(4) defines the word 'cadre' to mean the strength of a service or part of a service sanctioned as a separate unit,...."
In C.R. Luthra v. U. Governor, AIR 1974 SC 1908 the Supreme Court has held as follows:
"26. In Fundamental Rule 9(22) Permanent post' means a post carrying a definite rate of pay sanctioned without limit of time. Fundamental Rule 9(30) defines 'temporary post' as a post carrying a definite rate of pay sanctioned for a limited time. Temporary posts may be posts created to perform the ordinary work for which permanent post already exist. Temporary posts may also be temporary addition to the cadre of a Service. Cadre in Fundamental Rule 9(4) means the strength of a service or part of a Service sanctioned as a separate unit. In the case of a temporary addition to the cadre of a Service the power of the authorities to create such a post will depend on the provisions of the Rules.
Isolated posts may be created for the performance of special tasks unconnected with the ordinary work which a service is called upon to perform. Such temporary posts are treated as unclassified and isolated ex-cadre posts. Here again the power to create the post depends on the provisions contained in the Rules. Where however temporary posts are considered as temporary addition to the cadre of a Service the incumbents of those posts will draw their time scale pay." (Emphasis given)"
Again in O.P. Singla v. Union of India (AIR 1984 SC 1595) the Supreme Court observed as follows:
"19 since it is permissible under that Rule to create temporary posts in the Service, such posts are also regarded as Cadre Posts. It would have been anomalous to treat a post in the Service as an ex-cadre post merely for the reason that the post is temporary. Normally, an ex-cadre post means a post outside the cadre of posts comprised in a Service...."
The Supreme Court further held as follows :
"So we are of the view that simply by saying that the posts held by the applicant is an ex-cadre posts without anything more the respondents cannot succeed in their stand that the posts are ex-cadre posts. They ought to show that the authorities had powers to create the alleged ex-cadre posts and were so created or that those posts were created for the performance of special tasks unconnected with the ordinary work which a Service is called upon to perform. The respondents at least show that the posts were created for the time being and were treated as unclassified or isolated ex-cadre posts."
On the facts of this case, it has been contended and it has been stated in the reply that it is an ex-cadre post and it is not a promotion.
The integrity of the applicant was not cleared it was not communicated to the applicant as stated in the reply. As such in our view, there is nothing wrong in evaluating the character roll record as a whole and general assessment of work to promote an officer to hold super time scale posts.
In the result, we see no merit in this application. The application shall stand dismissed. No costs.