Central Administrative Tribunal - Ernakulam
V. Suresh Kumar vs Union Of India on 14 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 744 of 2013
with
O.A Nos. 750/13 and 778/13
Monday, this the 14th day of October, 2013
CORAM:
HON'BLE Dr. K.B.S. RAJAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. O.A. No. 744/2013
1. V. Suresh Kumar, Retired Superintendent of Police,
Residing at Suryamangalam, Nangyarkulangara PO,
Haripad, Alappuzha District, Pin - 690 513.
2. Alex M. Varkey, Retired Superintendent of Police,
Residing at Moolakunnel House, A.O. Joseph Road,
Pala P.O., Kottayam District, Pin 686 575.
3. D. Sali, Retired Superintendent of Police,
Residing at Nisha, 2/88, Karaparambu PO.,
Kozhikode - 673 010. - Applicants
(By Advocates Dr. K.P. Satheesan, Sr. &
Mr. P. Mohandas)
versus
1. Union of India, represented by the Secretary,
Ministry of Home Affairs, New Delhi - 110 012.
2. The Union Public Service Commission, represented
by the Secretary, Shajahan Road, New Delhi - 110 001.
3. The Selection Committee for Selection of Indian Police Service
constituted under Regulation - 3 of the Indian Police Service
(Appointed by Promotion) Regulation 1955, represented by its
Chairman, Union Public Service Commission, New Delhi-110 001.
4. State of Kerala, represented by the Chief Secretary,
Government Secretariat, Thiruvananthapuram - 695 001.
5. Mohammed Iqubal, Superintendent of Police, State Special Branch,
South Zone, Vikas Bhavan P.O., Nalanda Road,
Thiruvananthapuram - 695 033.
6. K.K. Jayamohan, Superintendent of Police, Foreigners Regional
Registration Officer, (Deputation to I.B.), Vazhuthakkad,
Thiruvananthapuram-695 035.
7. M. Mohammed Shabeer, Superintendent of Police, Special Branch
CIR, Police Head Quarters, Thiruvananthapuram - 695 035.
8. C.P. Gopakumar, Superintendent of Police, Vigilance Officer,
Travancore Devaswom Board, Nanthancode, Thiruvananthapuram-
695 003.
9. J. Christopher Charls Raj, Superintendent of Police (Security),
Special Branch CID, Police Head quarters, Thiruvananthapuram-
695 035.
10. G. Somasekhar, A.A.I.G.-II, Police Head Quarters,
Thiruvananthapuram-695 035.
11. V.N. Sasidharan, Superintendent of Police, Special Cell,
Vigilance and Anti Corruption Bureau, Adarsh Nagar, Pattom,
Thiruvananthauram-695 004.
12. K. Vijayan (Senior), Superintendent of Police,
CBCID, Palakkad - 678 001.
13. N. Vijayakumar, Deputy Commissioner of Police (Security),
Padmanabha Swamy Temple, East Fort,
Thiruvananthapuram - 695 023.
14. N. Ramachandran, Superintendent of Police, Chief Vigilance
Officer K.S.E.B., Vydyuthi Bhavan, Pattom,
Thiruvananthapuram - 695 004.
15. P.N. Unnirajan, Superintendent of Police, State Temple Anti
Theft Squad, Crime Branch CID, Eanchakkal,
Thiruvananthapuram - 695 008.
16. K.V. Joseph, Superintendent of Police, Vigilance and
Anti Corruption Bureau, Eastern Range,
Kottayam - 686 001. - Respondents
[By Advocates Mr. Sunil Jacob Jose, SCGSC (R1),
Mr. Thomas Mathew Nellimoottil (R2&3),
Mr. M. Rajeev, GP (R4) &
Mr. K. Nirmalan (R5-16)]
2. O.A. No. 750/2013
K.L. Harikumar, Retired Superintendent of Police,
SB CID, Thiruvanthapuram, (residing at Manimalary
Edagramam, Karumam, Thiruvananthauram-695 002. - Applicant
(By Advocates Dr. K.P. Satheesan, Sr. &
Mr. P. Mohandas)
versus
1. Union of India, represented by the Secretary,
Ministry of Home Affairs, New Delhi - 110 012.
2. The Union Public Service Commission, represented
by the Secretary, Shajahan Road, New Delhi - 110 001.
3. The Selection Committee for Selection of Indian Police Service
constituted under Regulation - 3 of the Indian Police Service
(Appointed by Promotion) Regulation 1955, represented by its
Chairman, Union Public Service Commission, New Delhi-110 001.
4. State of Kerala, represented by the Chief Secretary,
Government Secretariat, Thiruvananthapuram - 695 001.
5. Mohammed Iqubal, Superintendent of Police, State Special Branch,
South Zone, Vikas Bhavan P.O., Nalanda Road,
Thiruvananthapuram - 695 033.
6. K.K. Jayamohan, Superintendent of Police, Foreigners Regional
Registration Officer, (Deputation to I.B.), Vazhuthakkad,
Thiruvananthapuram-695 035.
7. M. Mohammed Shabeer, Superintendent of Police, Special Branch
CIR, Police Head Quarters, Thiruvananthapuram - 695 035.
8. C.P. Gopakumar, Superintendent of Police, Vigilance Officer,
Travancore Devaswom Board, Nanthancode, Thiruvananthapuram-
695 003.
9. J. Christopher Charls Raj, Superintendent of Police (Security),
Special Branch CID, Police Head quarters, Thiruvananthapuram-
695 035.
10. G. Somasekhar, A.A.I.G.-II, Police Head Quarters,
Thiruvananthapuram-695 035.
11. V.N. Sasidharan, Superintendent of Police, Special Cell,
Vigilance and Anti Corruption Bureau, Adarsh Nagar, Pattom,
Thiruvananthauram-695 004.
12. K. Vijayan (Senior), Superintendent of Police,
CBCID, Palakkad - 678 001.
13. N. Vijayakumar, Deputy Commissioner of Police (Security),
Padmanabha Swamy Temple, East Fort,
Thiruvananthapuram - 695 023.
14. N. Ramachandran, Superintendent of Police, Chief Vigilance
Officer K.S.E.B., Vydyuthi Bhavan, Pattom,
Thiruvananthapuram - 695 004.
15. P.N. Unnirajan, Superintendent of Police, State Temple Anti
Theft Squad, Crime Branch CID, Eanchakkal,
Thiruvananthapuram - 695 008.
16. K.V. Joseph, Superintendent of Police, Vigilance and
Anti Corruption Bureau, Eastern Range,
Kottayam - 686 001. - Respondents
[By Advocates Mr. Sunil Jacob Jose, SCGSC (R1),
Mr. Thomas Mathew Nellimoottil (R2&3),
Mr. M. Rajeev, GP (R4) &
Mr. K. Nirmalan (R5-10)]
3. O.A. No. 778/2013
1. Thomas Jolly Cherrian, aged 56,
S/o. P.T. Cherrian (late),
Superintendent of Police (Retired),
CBCID, OCWI Thiruvananthapuram,
Residing at Jolly Dale, TC 32/881, Vettukad,
Post - Beach, Thiruvananthapuram -7.
2. P.A. Valsan, aged 56, S/o. George Abraham,
Superintendent of Police, (Retired),
CBCID, EOW III, Kozhikode, Residing at
Green Field, Arakkilad, Post - Puthur,
Vadakara, Kozhikode. - Applicants
(By Advocate Mr. P.V. Mohanan)
versus
1. Union of India, represented by the Secretary,
Ministry of Home Affairs, New Delhi - 110 012.
2. The Union Public Service Commission, represented
by the Secretary, Shajahan Road, New Delhi - 110 001.
3. The Selection Committee for Selection of Indian Police Service
constituted under Regulation - 3 of the Indian Police Service
(Appointed by Promotion) Regulation 1955, represented by its
Chairman, Union Public Service Commission, New Delhi-110 001.
4. State of Kerala, represented by the Chief Secretary,
Government Secretariat, Thiruvananthapuram - 695 001.
5. Mohammed Iqubal, Superintendent of Police,
State Special Branch, South Zone, Vikas Bhavan P.O.,
Nalanda Road, Thiruvananthapuram - 695 033.
6. K.K. Jayamohan, Superintendent of Police, Foreigners Regional
Registration Officer, (Deputation to I.B.), Vazhuthakkad,
Thiruvananthapuram-695 035.
7. M. Mohammed Shabeer, Superintendent of Police, Special Branch
CID, Police Head Quarters, Thiruvananthapuram - 695 035.
8. C.P. Gopakumar, Superintendent of Police, Vigilance Officer,
Travancore Devaswom Board, Nanthancode, Thiruvananthapuram-
695 003.
9. J. Christopher Charls Raj, Superintendent of Police (Security),
Special Branch CID, Police Head quarters, Thiruvananthapuram-
695 035.
10. G. Somasekhar, A.A.I.G.-II, Police Head Quarters,
Thiruvananthapuram-695 035.
11. V.N. Sasidharan, Superintendent of Police, Special Cell,
Vigilance and Anti Corruption Bureau, Adarsh Nagar, Pattom,
Thiruvananthauram-695 004.
12. K. Vijayan (Senior), Superintendent of Police,
CBCID, Palakkad - 678 001.
13. N. Vijayakumar, Deputy Commissioner of Police (Security),
Padmanabha Swamy Temple, East Fort,
Thiruvananthapuram - 695 023.
14. N. Ramachandran, Superintendent of Police, Chief Vigilance
Officer K.S.E.B., Vydyuthi Bhavan, Pattom,
Thiruvananthapuram - 695 004.
15. P.N. Unnirajan, Superintendent of Police, State Temple Anti
Theft Squad, Crime Branch CID, Eanchakkal,
Thiruvananthapuram - 695 008.
16. K.V. Joseph, Superintendent of Police, Special Branch CID,
Vigilance and Anti Corruption Bureau, Eastern Range,
Kottayam - 686 001. - Respondents
[By Advocates Mr. Sunil Jacob Jose, SCGSC (R1)
Mr. Thomas Mathew Nellimoottil (R2&3),
Mr. M. Rajeev, GP (R4)]
These applications having been heard on 01.10.2013, the Tribunal on
14.10.2013 delivered the following:
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER Having common facts and same legal issue involved in all these O.As, they were heard together and are disposed of by this common order. O.A. No. 750/2013 is taken as the representative O.A.
2. Brief facts of the above cases are as under.
3. All the applicants in these O.As were members of the Kerala Police Service and were eligible for consideration for appointment against 13 vacancies as on 01.01.2010 in the Indian Police Service of Kerala cadre. On attaining the age of superannuation of 56 years in Kerala Police Service, the applicant in O.A. No.750/2013 retired on 31.05.2012; the 1st and 2nd applicants in O.A. No.778/2013 retired on 30.04.2013 and 31.05.2013 respectively and the 1st, 2nd and the 3rd applicants in O.A. No. 744/2013 retired on 30.11.2012, 31.03.2011 and 31.07.2012 respectively. They were considered for appointment to the Indian Police Service in the meeting of the Selection Committee held on 21.12.2012. The Union Public Service Commission (UPSC) approved the Select List of 2010 which included all the applicants herein alongwith the Select List of 2011 on 05.07.2013. The same was notified by the Ministry of Home Affairs on 06.08.2013. On the same day, i.e. on 06.08.2013, the Home Ministry notified the appointment of 06 members of the Kerala Police Service from the Select List of 2010 to the Indian Police Service in exercise of the powers conferred by sub-rule (1) of Rule 9 of the Indian Police Service (Recruitment) Rules, 1954, read with sub-regulation (1) of Regulation 9 of the Indian Police Service (Appointment by Promotion) Regulations, 1955, excluding the applicants and another candidate who was provisionally included in the Select List of 2010. Aggrieved by the non appointment of the applicants to the Indian Police Service of Kerala Cadre, these O.As were filed for the following reliefs (in OA 750/13) :
(i) To set aside Annexure A-8 notification No. 1-14011/11/2012-
IPS.I(II) dated 06.08.2013 issued by the 1st respondent as it is legally unsustainable and contrary to the Regulations;
(ii)To issue an order or direction to the first respondent to include all the persons included in Annexure A-3 minutes of the Section Committee other than the persons who are provisionally included;
(iii)To declare that the applicant is entitled to be included in the notification for promotion to the Indian Police Service as he has been duly selected by the Selection Committee and approved by the State Government;
(iv)To issue such other order or direction as this Hon'ble Tribunal may deem fit an proper in the facts and circumstances of the case.
4. The applicants contended that they were included in the final Select List notified by the UPSC after following all formalities on 06.08.2013. Exclusion of the applicants from Annexure A-8 notification (in OA 750/13) is arbitrary and violative of Article 14 of the Constitution of India. The Ministry of Home Affairs, the 1st respondent, has no authority to delete the names of the applicants from the Annexure A-8 notification. Once the list is published by the UPSC, it is final for all purposes. Neither the Central Government nor the State Government has any authority to modify the same. The Central Government cannot pick and choose the candidates included in the final Select List prepared by the UPSC. Annexure A-8 notification is legally unsustainable to the extent it excluded the applicants. The applicants were included in the Select List on the basis of the merit determined by the Selection Committee. Hence the exclusion of the applicants from Annexure A-8 notification is a colourable exercise of power. Rule 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1955, provides that the Selection Committee shall ordinarily meet every year . Due to delay in convening the meeting of the Selection Committee and consequential delay in publication of notification, the applicants were constrained to retire from service on attaining the age of superannuation (56 years) as per the Kerala Police Service Rules. But as per the Indian Police Service Rules, the age of retirement is 60 years. Therefore, the applicants are legally entitled to continue upto the age of 60 years if promoted to the Indian Police Service. This Tribunal had already declared that the retirement of the applicant in O.A. No. 750/2013 from the State Service would not stand in the way of considering him for appointment to the Indian Police Service. This direction was totally ignored by the 1st respondent while issuing Annexure A-8 notification. Under Section 9(a) of the Indian Police Service (Appointment by Promotion) Regulations, 1955, the Central Government has the power not to appoint any person whose name appears in the Select List, if it is of the opinion that it is necessary or expedient so to do in the public interest. In the instant cases, the appointment of the applicants is in conformity with the public interest. That apart, when such power is exercised by the Government, the same should be reflected in the order. Further, any decision not to appoint any person whose name appears in the Select List should be taken by the Central Government only in consultation with the UPSC. Such consultation does not appear to have been made. Hence exclusion of the applicants from Annexure A-8 notification is patently erroneous and contrary to the rules. The respondents have no case that the selection and inclusion of the names of the applicants are vitiated by fraud or misrepresentation. Regulation 5(1) is mandatory as held by the Apex Court in 1993 (Suppl) (3) SCC 575, 1996 (6) SCC 721, 1995 (Suppl) (3) SCC 109, 2005 (5) SCC 78 and 2010 (4) SCC
290. The Selection committee met on 21.12.2012 for selection and appointment to the IPS cadre for the years 2010 and 2011. The applicants in O.A. No. 778/2013 were in service when the select panel was forwarded by the State Government for approval by the UPSC. It is incumbent upon the Central Government to publish the list in the order in which the names of the members of the State Police Service appear in the Select List prepared by the UPSC. If the applicants were inducted to the IPS cadre before their retirement, they would have been eligible for the benefit of pay fixation and other service benefits of the All India Services.
5. In O.A. No. 750/2013, written statement has been filed on behalf the respondent No.1. It is adopted in O.A. Nos. 744/13 and 778/13 also. It was submitted that as per Regulation 9(1) of the Indian Police Service (Appointment by Promotion) Regulations, 1955, the Central Government is empowered to appoint only the members of the State Police Service to the Indian Police Service appearing in the Select List during its validity period. On the date of issue of appointment notification, the applicants had attained the age of superannuation of the State Police Service and thus they were not the members of the State Police Service. Therefore, under the aforesaid Regulation, the Central Government is not empowered to include the names of the applicants in the appointment Notification No.1-14011/11/2012-IPS.I(II) dated 06.08.2013.
6. We have heard the learned counsel appearing for the parties and perused the records.
7. Regulation 5(1) of the Indian Police Service (Appointment by Promotion) Regulations, 1955, stipulates that the Selection Committee shall ordinarily meet every year. In (1996) 6 SCC 721, Union of India and Others vs. Vipinchandra Hiralal Shah, the Hon'ble Supreme Court held as under :
"9. Clause (1) of Regulation 5 of the Regulations differs from clause (1) of Regulation 4 which was considered by this Court in Mohan Lal Capoor (supra) in the sense that the word "ordinarily"
found in clause (1) of Regulation 5 was not contained in clause (1) of Regulation 4. The insertion of the word "ordinarily" does not, in our opinion, alter the intendment underlying the provision. It only means that unless there are good reasons for not doing so, the Selection Committee shall meet every year for making the selection. 10 In Syed Khalid Rizvi & Ors. v. Union of India & Ors., 1993 Supp. (3) SCC 575, this Court was constructing the provisions of Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1995 which is in pari material with clause (1) of Regulation 5 and contained the word "ordinarily", It was observed :-
"......since the preparation of the Select List is the foundation for promotion and its omission impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select-list must be construed to be mandatory. The Committee should, therefore, meet every year and prepare the select-list and be reviewed and revised from time to time as exigencies demand.
x x x x Unless the select-list is made annually and reviewed and revised from time to time, the promotee officers would stand to lose their chances of consideration for promotion which would be a legitimate expectation. This Court in Mohan Lal Capoor case held that the Committee shall prepare every year the select-list and the list must be submitted to the UPSC by the State Government for approval and thereafter appointment shall be made in accordance with the rules. We have, therefore, no hesitation to hold that preparation of the select-list every year is mandatory. It would subserve the object of the Act and the rules and afford an higher opportunity to the promotee officers to reach higher echelons of the service."
11. It must, therefore, held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst State Civil Service officers who fulfill the conditions regarding eligibility on the first day of the January of the year in which the Committee meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service officers who were eligible and fall within the zone of consideration for selection in that year. "
(emphasis supplied) In (2010) 4 SCC 290, Union of India and Another vs. Hemraj Singh Chauhan and Others, the Apex Court held as under:
"40. This Court is not very much impressed with the aforesaid contention. The word 'ordinarily' must be given its ordinary meaning. While construing the word the Court must not be oblivious of the context in which it has been used. In the case in hand the word 'ordinarily' has been used in the context of promotional opportunities of the officers concerned. In such a situation the word 'ordinarily' has to be construed in order to fulfil the statutory intent for which it has been used.
41. The word 'ordinarily', of course,means that it does not promote a cast-iron rule, it is flexible (see Jasbhai Motibhai Desai vs. Roshan Kumar, (1976) 1 SCC 671 at page 682, para
35). It excludes something which is extra ordinary or special (Eicher Tractors Ltd. vs. Commnr. Of Customs, (2001) 1 SCC 315, page 319, para 6). The word 'ordinarily' would convey the idea of something which is done "normally" (Krishan Gopal vs. Prakaschandra, (1974) 1 SCC 128, page 134, para 12) and "generally" subject to special provision (Mohan Baitha v. State of Bihar, 2001) 4 SCC 350, page 354).
42. Concurring with the aforesaid interpretative exercise, we hold that the statutory duty which is cast on the State Government and the Central Government to undertake the cadre review exercise every five years is ordinarily mandatory subject to exceptions which may be justified in the facts of a given case. Surely, lethargy, in-action, an absence of a sense of responsibility cannot fall within category of just exceptions.
43. In the facts of this case neither the appellants nor the State of U.P. has justified its action of not undertaking the exercise within the statutory time frame on any acceptable ground. Therefore, the delayed exercise cannot be justified within the meaning of `ordinarily' in the facts of this case. In the facts of the case, therefore, the Court holds that there was failure on the part of the authorities in carrying out the timely exercise of cadre review.
44. In a somewhat similar situation, this Court in Union of India and Ors. vs. Vipinchandra Hiralal Shah - (1996) 6 SCC 721, while construing Regulation 5 of the I.A.S. (Appointment by Promotion) Regulations, 1955 held that the insertion of the word `ordinarily' does not alter the intendment underlying the provision. This Court in that case was considering the provision of Clause (1) of Regulation 5 of the IPS (Appointment by Promotion) Regulations along with other provisions of Regulation 5. The interpretation which this Court gave to the aforesaid two Regulations was that the Selection Committee shall meet at an interval not exceeding one year and prepare a list of members who are eligible for promotion under the list. The Court held that this was mandatory in nature."
(emphasis supplied) Meeting of the Selection Committee every year is mandatory as per the above judgements of the Apex Court cited by the applicants. The meeting of the Selection Committee to consider the applicants for selection and appointment to the IPS cadre against 13 vacancies of the year 2010 should have been held on or before 31.12.2010. Had the meeting been held in time as stipulated under the Regulation 5(1) of the Rules, the applicants would already have been inducted into the IPS cadre. The Selection Committee met only on 21.12.2012; by that time some of the applicants had retired from the State Police Service on attaining the age of superannuation. By the time the appointment of the members of the Kerala State Police Service to the IPS cadre against the vacancies of the year 2010 was notified on 06.08.2013, the remaining applicants had retired from the State Police Service. The respondents have not cited any reason for the failure on their part to hold the Selection Committee meeting within the stipulated time. The delay was not due to any reason attributable to the applicants. The responsibility for holding the meeting in time lies with the respondents only. The applicants should not be made to suffer on account of the failure on the part of the respondents to hold the meeting in time. In Nirmal Chandra Bhattacharjee and Ors. vs. Union of India and Ors., 1991 Supp. (2) SCC 363, the Apex Court held that the mistake or delay on the part of the department should not be permitted to recoil on the appellants.
8. In O.A. No. 240/2012, this Tribunal had ordered that the retirement of the applicants therein will not stand in the way of considering them for appointment to the IPS cadre, if otherwise they are eligible. The respondent No. 1 herein was the respondent No.1 in the said O.A also. Hence the Ministry of Home Affairs cannot pretend that they are unaware about the existence of the said order. In excluding the applicants from the notification dated 06.08.2013 appointing members of the Kerala Police Service to the Indian Police Service against vacancies of the year 2010, the respondent No.1 has disregarded the order of this Tribunal blatantly.
9. As per Regulation 9(1) of the Indian Police Service (Appointment by Promotion) Regulations, 1955, the Central Government is empowered to appoint the members of the State Police Service to the Indian Police Service in the order in which their names appear in the Select List prepared by the UPSC. As per Regulation 9(a) of the above Rules, the Central Government can choose not to appoint any person whose name appears in the Select List in the public interest and that too, in consultation with the UPSC. In the instant cases, the Ministry of Home Affairs, the 1st respondent, had notified the names of the applicants approved by the UPSC on 05.07.2013 in the Select List of 2010 as per Notification No.1-14011/11/2012-IPS-I(I) dated 06.08.2013 (Annexure A-7 in OA 750/13). The very same Ministry on the very same day issued the appointment order excluding the names of the applicants. Exclusion of the names of the applicants from the appointment notification dated 06.08.2013 is done without the mandatory consultation with UPSC, as required by the proviso to Regulation 9(a) of the above Rules. There is no evidence to the contrary available in the records produced before us. There is no mention of the reason, if any, in the impugned order at Annexure A-8 (in OA No. 750/13)for not following the notification, in the order in which the names of the members of the State Police Service appear in the Select List approved by the UPSC in appointing them to the Indian Police Service, which resulted in the exclusion of the applicants. The non observance of the mandatory provision of consultation with the UPSC and non mentioning of the reason to exclude the applicants make the exclusion of their names from the appointment notification arbitrary and illegal. An examination of the concerned file of the Home Ministry shows that the decisions to notify the Select Lists of 2010 and 2011 and to appoint only those who are members of the State Police Service as on date were taken on 05.08.2013. Relevant facts like consultation with UPSC on omitting certain names which were included unconditionally in the Select List, the order of this Tribunal in O.A. No. 240/2012 and other O.As and the deleterious effect of delay in holding the Selection Committee meeting in time on the persons who were included in the Select List approved by the UPSC and are not included in the appointment notification etc. are not considered at all. Respondent No.1 was a party to the preparation of the Select List of 2010 and he himself had notified it and then had chosen not to appoint the applicants to the Indian Police Service on the ground of their retirement from the Kerala Police Service on attaining the age of superannuation of 56 years. In the order in O.A. No. 217/2012 and connected cases (Annexure A-8 in OA No. 778/13), this Tribunal dealt with the issue of appointment to the India Police Service of members of the State Police Service who retired, in detail. The relevant part of the said order is reproduced as under:
13. As per the averment of the respondent No.1, the UPSC is only concerned with reference to the Select List prepared and approved under Regulation 7(3) on the basis of a grading by the Selection Committee and with the aid of observations of the State and Central Government. The Central Government is the authority concerned in making the appointments from the Select Lists on the recommendations of the State Government in the order in which the names of the members of the State Police Service appear in the Select Lists, being in force during its validity period. The Regulation 9 of the IPS (Appointment by Promotion) Regulations, 1955, which is mandatory, requires appointment to the Service to be made in the order in which the names appear in the Select Lists for the time being in force.
Therefore, the Central Government cannot deviate from the Select List prepared by the UPSC. The Select List in the order dated 06.03.2012 is not the Select List prepared by the UPSC; it is a different Select List culled out from the Select List prepared by the UPSC, without any authority. There is no indication whatsoever in it , to show that the UPSC had approved the elimination of the names of the applicants from the Select Lists shown in the aforesaid order. When the preparation of the Select List is the earmarked function of the UPSC as per Regulations, curtailing the Select List prepared by the UPSC, without its concurrence is improper and illegal. The encroachment of the 1st respondent in the jurisdiction of the UPSC is unconstitutional.
14. The impugned order dated 06.03.2012 is not a speaking order in as much as it does not state any reason to eliminate the names of the applicants from the Select Lists, which visits them with civil consequences. As such, the applicants should have been heard before issuing the said order in accordance with the principles of natural justice. The applicants have been thrown out of the IPS arbitrarily. The 1st respondent submitted that no useful purpose would be served by issuing a show cause notice to the applicant before taking a final decision in the matter as the decision after coming to notice that the applicants have retired from the State Police Service on superannuation, was a foregone conclusion. The stand of the respondents that issuing a show cause notice to the applicants is a mere technicality is totally untenable. Had the applicants been given an opportunity of being heard before the decision was taken, they would have brought to the notice of the 1st respondent a number of Court orders declaring that the retirement of officers from the State Police Service/State Forests Service on attaining the age of 55 years shall not disentitle them for being considered for selection and induction to All India Service on due date. In the case of applicant in O.A. No. 217/2012, there was a direction from this Tribunal in O.A. No. 14/2012 in which Union of India represented by the Secretary, Ministry of Home Affairs, New Delhi, is the 1st respondent, to include him in the field of choice for consideration for selection to the IPS Kerala cadre on promotion quota for the vacancies which arose as on 2009 and to select him to the IPS Kerala cadre depending on his seniority in the cadre of Deputy Superintendent of Police. It was a grave lapse on the part of the 1st respondent not to have consulted all the stakeholders, namely the applicants, the State Government and the UPSC in the matter. A Select List does not create a vested right for the officer whose name is included in it. But an order of appointment crystallizes a vested right for the officer appointed. Once the appointment order is effected and probation of the officer commenced, the process of selection and appointment by promotion is completed. Thereafter, the 1st respondent is not in a position to resurrect the stage before appointment for whatever purpose. Once the officer entered the stage of probation, the IPS (Probation) Rules, 1954 will apply and not the Promotion Rules. The corrigendum is an exercise of power not vested with the 1st respondent by any provision of law. Therefore, the rule in accordance with which the appointment of the applicants to the IPS (Kerala) cadre was nullified, was not cited. The arbitrary exercise of non-existent power to the detriment of duly appointed applicants is untenable, illegal, irresponsible and smacks of perversity.
15. Upon a direction of this Tribunal in O.A. No. 26/1996, the applicant therein who retired on 31.12.1995 joined the IPS on 30.04.1996. The Hon'ble High Court of Kerala in the judgement dated 01.04.2004 in W.P.(C) No. 11425/2004 held that there cannot be any justification for denying appointment to the applicant for the reason that the petitioners failed to consider his name for inclusion in the Select List for the year 2002 before his retirement from service on 31.03.2003. The applicant cannot be made to suffer for the failure of the petitioners to hold the Selection Committee meeting and to prepare the Select List in time and in accordance with the rules.
16. In the order dated 29.04.2004 in O.A. No. 51/2004, it was held as under :
"The unconditional willingness of the applicant for appointment to the Indian Forest Service has been obtained on 07.01.2003. These facts are undisputed. Having considered the applicant for appointment by promotion to IFS under Regulation 5 of IFS (Appointment by Promotion) Regulations, 1966, having placed his name in the Select List and having obtained his unconditional willingness, the respondents cannot say that the applicant cannot be appointed to the IFS for the reason that he retired from the State Forest Service on 31.05.2002 especially in the face of a declaration in the judgement of the Hon'ble High Court of Kerala regarding his entitlement."
17. In the order dated 20.07.2004 in O.A. No. 354/2004, this Tribunal held as under:
"Further, the name of the applicant was forwarded by the State Government for consideration by the Committee after his superannuation. The name of the applicant was placed in the Select List and it was approved by the UPSC as also the government of India. The willingness of the applicant for unconditional appointment to IFS also stand obtained. All these took place after the superannuation of the applicant. In the circumstances, we are of the considered view that the respondents are not justified in denying the applicant appointment to the IFS...."
18. In O.A. No 230/2004 and connected cases, wherein Union of India was represented by the Secretary, Ministry of Home Affairs, New Delhi, the prayer of the applicants therein was allowed, to consider their names for inclusion in the Select List for appointment to the IPS for the years 2001, 2002 and 2003 de hors the superannuation of the applicants from the State Police Service. The following extract from the order of this Tribunal dated 23.12.2005 in the aforesaid O.As is quite relevant here.
"21. The main question arising for consideration in these OAs is whether retired State Police Officers are eligible and entitled to be considered for promotion to IPS after their retirement. According to the State Government the provisions of Regulation 5(1) and the proviso thereof, stipulate that the Committee shall consider the case of a member of the State Police Service on the first day of January each who is a substantive member of the State Police Service who has completed not less than 8 years of continuous service and the wording makes it clear that only those in service at the time of consideration and on the date of preparation of the list and at the time of appointment can be considered. There is no doubt that in the normal course when the Selection Committee meets every year this position holds good and therefore these have to be read along with the proviso in the Regulation for convening the meetings. The circumstances under which the Select Lists have been prepared for the three years at a stretch are different and the very genesis of the problem has arisen on account of the Regulations not being followed in convening the Selection committee meetings on regular basis as provided for under sub regulation (1) of Regulation 5. The proviso to the above Regulation envisages only three situations when the Committee Meeting cannot be held (i) when there is no substantive vacancy (ii) when the Central Government decides in consultation with the State Government that recruitment shall not be made during a particular year or
(iii) when the Commission on its own or on a proposal from the Government decide that it is not practicable to hold a meeting. It is therefore, mandatory for the Govt to convene a meeting of the Selection Committee every year unless a decision has been taken on account of the reasons mentioned above. None of these reasons were applicable in the instant cases which fact has not been considered by the respondents. In fact, from the pleadings of both sides it is clear that the Selection Committee meeting could not be held on account of cases pending before the Hon'ble High Court on the question of equation of the Assistant Commandant of the Armed Police with that of the Deputy Superintendent Police (General Executive) Wing of Kerala Police. Thus no responsibility could be attributed to the applicants for this delay caused.
The Apex Court in Syed Rizvi's case interpreted identical Regulations relating to IAS and held that the preparation of Select List is mandatory and would sub serve the object of the Act and afford equal opportunity to promotee officers to reach higher echelons of the service. In the Vipin Chandra Heera Shah's case relied upon by the applicants Apex Court unequivocally held relying again on the earlier judgment in Syed Rizvi's case that failure on the part Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year and while making selection, separate list shall be prepared for each year keeping in view the vacancies in that year after considering the State Civil Service Officers who were eligible and fell within the zone of consideration in that year. This position of law has been thus settled i.e. the Selection Committee can meet for preparing a list for previous years for which it did not meet and consider the eligibility of the officers in the zone of consideration as it stands in that year. The contention of the State Government therefore does not seem to have much force. This becomes particularly relevant because there is a difference in the age of retirement between the State Government and Central Government Services which in the case of Kerala State is 55 years, the age of retirement in the Central Government is 60 years-the gap is of 5 years and under these circumstances such a situation can naturally be envisaged. When the Selection Committee meets after a gap of one to three years as in this case, and matters are pending before the Courts, such selections have to be essentially considered on a different footing as extra-ordinary in nature, as the probability of the contesting claimants retiring during the interregnum cannot be ruled out. It is pertinent to note that all the applicants except the applicant in OA 1022/2003 had retired from State Service before the Selection Committee met on 24.12.2003. No doubt the Regulations do not envisage such a situation and therefore we have to be necessarily guided by the judicial pronouncements. In our opinion, it is high time that the Government of India took note of the judicial pronouncements and made suitable provisions in the Rules/Regulations providing for such contingencies. In the instant cases it is to be borne in mind that all the applicants had approached this Tribunal before they retired from service and at the time of obtaining the interim direction they were in service.
(emphasis supplied)
19. In view of the above and similar judgements, the 1st respondent cannot contend that the applicants are not eligible for appointment to the IPS Kerala cadre on promotion quota for the years 2008-A and 2009.
20. The 1st respondent contended that the IPS, being an All India Service, the issue of appointment to the IPS by promotion from the State Police Service cannot be viewed in an isolated manner. But the 1st respondent did exactly the opposite in issuing the impugned order. For the officers belonging to the Central Government, the superannuation age is 60 whereas it was 55 and now 56 in the State of Kerala; in other States also the age of superannuation is much above 55. There is no provision in the IPS (Appointment by Promotion) Regulations, 1955, to deal with such a situation. A holistic view of the provisions in the Regulations in the light of Court rulings should have been taken by the 1st respondent to meet the unenvisaged situation and ensure that the officers of Kerala State who retire much before their counter parts from other States, are not denied justice and fair play in the matter of promotion to the IPS. Keeping a holistic view of the rules in the light of the Court rulings and taking a pro- active approach, a fair and equitable interpretation of Regulation 9(1) of the IPS (Appointment by Promotion) Regulations, 1955, in the facts and circumstances of these cases, would have been to deem the applicants (till they join the IPS) to be in the State Service but for their superannuation, which was rather premature, in comparison with the age of superannuation in the Central Government and in other States, in the context of the failure of the respondents in holding the meeting of the Selection Committee every year as per rules and completing the process of promotion in time.
21. The Regulation 9, Regulation 5(1) and Regulation 5(3) of the IPS (Appointment by Promotion) Regulations, 1955 read as under:
"9. APPOINTMENTS TO THE SERVICE FROM THE Select List: (1) Appointment of a member of the State Police Service, who has expressed his willingness to be appointed to the service shall be made by the Central Government in the order in which the names of the members of the State Police Service appear in the Select List for the time being in force during the period when the Select List remains in force:"
"5. PREPARATION OF A LIST OF SUITABLE OFFICERS :- (1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Police Service as are held by them to be suitable for promotion to the Service. The number of members of the State Police Service to be included in the list shall be determined by the Central Government in consultation with the State government concerned, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held, in the posts available for them under rule 9 of the Recruitment Rules. The date and venue of the meeting of the Committee to make the selection shall be determined by the Commission."
"5(3) The Committee shall not consider the cases of the members of the State Police Service who have attained the age of 54 years on the first day of January of the year for which the Select List is prepared."
Both the above Regulations should be read together. The Committee is to meet every year. The officers should not have attained the age of 54 years on the first day of January of the year of the vacancy and the officer concerned should have expressed his willingness to be appointed to the IPS. In the light of various court decisions, the invariable conclusion will be that the appointment of a member of State Police Service, if he has not attained the age of 54 years on the first day of the January of the year of vacancy and who was given his willingness to be appointed to the Service can be appointed from the Select List to the IPS even if he had retired from the State Police Service. The officers should not not be made to suffer on account of the delay in holding the meeting of the Selection Committee in time.
22. Regulation 9-A of the IPS (Appointment by Promotion) Regulations, 1955, has some relevance, which reads as under:
"9-A POWER OF THE CENTRAL GOVERNMENT NOT TO APPOINT IN CERTAIN CASES: Notwithstanding anything contained in these Regulations or the recommendations made by the State Government concerned under Regulation 9(1). The Central Government may not appoint any person whose name appears in the Select List if it is of the opinion that it is necessary or expedient so to do in the public interest.:
Provided that no such decision shall be taken by the Central Government without consulting the Union Public Service Commission."
The Central Government may not appoint any person whose name appears in the Select List if it is of the opinion that it is necessary or expedient so to do in public interest. Even then, such a decision can be taken by the Central Government in consultation with the UPSC only. The 1st respondent has no case that public interest is involved in eliminating the names of the applicants from the Select List and that it was done in consultation with the UPSC."
The settled law is that the retired State Police officers, if they have not attained the age of superannuation in the Central Government, are entitled to be considered for promotion to the Indian Police Service, if they are otherwise eligible.
10. The Selection Committee considered the eligibility as on 01.01.2010 of all those who are in the zone of consideration for appointment to the Indian Police service on 21.12.2012 and prepared the Select List of 2010 on the basis of merit which was approved by the UPSC on 05.07.2013 and was notified on 06.08.2013. The delay in holding the meeting of the Selection Committee and in notifying the Select List and appointment to the Indian Police service cannot nullify the eligibility of the applicants to the Indian Police Service on the ground of retirement on account of lower age of superannuation in the State Police Service, if they have not attained the age of superannuation in the Central Government. In the circumstances of the instant cases, the right course of action for the respondents was to deem the applicants to be members of the State Police Service to meet the requirement of Regulation 9(1) of Regulations, 1955. In a situation, where age of superannuation is relevant, the age of superannuation in the Central Government should prevail in the interest of uniformity at national level.
11. The first respondent, as per records, failed to consider whether the exclusion from the notification of appointment to the Indian Police Service dated 06.08.2013, of the names of the applicants who had not attained the age of superannuation in the IPS and who were selected on the basis of merit and were in the Select List notified on 06.08.2013 is in the public interest or not under 9(a) of the Regulations, 1955 in consultation with the UPSC.
12. In the result, we hold that the exclusion of the names of the applicants from Notification No.1-14011/11/2012-IPS-I(II) dated 06.08.2013 issued by the first respondent is legally unsustainable and contrary to the Regulations.
13. The respondents knew or should have known the dates of retirement of the applicants from the State Police Service. The applicants were selected on merit by the respondents themselves for appointment to the Indian Police Service. They were willing and ready to work as IPS officers on notifying their appointment to the Indian Police Service. They were illegally denied promotion to the IPS and they suffered loss of work and income on account of the failure of the respondents to hold the meeting of the Selection Committee in time. Here the principle of 'no work no pay' will not apply. In the interest of justice, they should be compensated.
14. Accordingly, the O.As are allowed as under :
Notification No.1-14011/11/2012-IPS-I(II) dated 06.08.2013 issued by the 1st respondent is set aside to the extent it excludes the names of the applicants in the Select List of 2010 shown therein. The first respondent is directed to make a fresh notification for appointment to the Indian Police Service including all the names in the Select List of 2010 other than the name of the person provisionally included, in the Notification No. 1-14011/11/2012-IPS-I(I) dated 06.08.2013, with effect from 06.08.2013. The applicants shall be entitled to all service benefits with effect from 07.08.2013 including pay and allowances. Appropriate orders shall be issued by the concerned authorities within a period of 30 days from the date of receipt of a copy of this order. No order as to costs.
(Dated, the 14th October, 2013) (K. GEORGE JOSEPH) (Dr. K B S RAJAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER cvr.