Central Administrative Tribunal - Allahabad
Unknown vs State Of Uttarakhand & Ors Decided On ... on 23 May, 2012
(RESERVED ON 25.04.2012 )
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH
ALLAHABAD
ALLAHABAD this the 23rd day of May , 2012.
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MR. SHASHI PRAKASH, MEMBER (A)
Original Application Number. 330 OF 2012.
Vinay Shanker Pandey,S/o Shri Ram Prakash Pandey, Resident of 33/2, Stanley Road, Allahabad, presently posted as General Manager, Tourism, Garhwal Mandal Vikas Nigam, Dehradun.
Applicant.
VE R S U S
1. State of Uttarakhand through Principal Secretary, Department of Personnel, Civil Secretariat, 4-Subhash Road, Dehradun.
2. Union of India through Secretary Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi.
3. Union Public Service Commission through its Secretary, Dhaulpur House, Shahjahan Road, New Delhi.
4. Bhupal Singh Manral, Presently posted as Additional Secretary/Estate Officer, Civil Secretariat, 4- Subhash Road, Dehradun
..Respondents
Advocate for the applicant: Shri Sathish Chaturvedi along with Pankaj Srivastava
Advocate for the Respondents: Shri S.K. Om for respondent No. 1
Shri Anil Dwivedi for respondent No. 2
Shri K.C. Sinha for respondent No. 3
Shri Nagendra Kumar Mishra for
respondent No. 4
O R D E R
Delivered by Honble Mr. Sanjeev Kaushik, J.M. By means of the instant Original Application filed under section 19 of Administrative Tribunals Act, 1985, the applicant is aggrieved against the action of the official respondents in not implementing the ratio of Judgment of Honble High Court, Uttarakhand in Writ Petition No. 79/08 (SB) M.C. Joshi & Ors. Vs. State of Uttarakhand & Ors decided on 26.07.2010 rather contrary to they have recommended the name of respondent no.4 to Union Public Service Commission for consideration for induction into Indian Administrative service from state cadre officer. As a consequence the applicant has sought quashing of the order dated 13.3.2008 whereby the respondent No. 4 has been transferred to Uttarakhand Cadre of Provincial Civil Service (Executive) on the basis of mutual transfer on the ground that the action of the respondents in this regard is void abnitio, and direct the respondent no. 1 to remove the name of respondent no.4 from the gradation list of Provincial Civil Service (Executive) of Uttarakhand Cadre.
2. The short and pointed question that arises for our consideration is that whether the action of the respondent No. 1 in including the name of the respondent No. 4 in select list and recommending to respondent No. 3 for consideration for induction into Indian Administrative Service from Provincial Civil Service (Executive) is in violation of judgment of Honble High Court, Uttarakhand in Writ Petition No. 79/08 (SB) M.C. Joshi & Ors. Vs. State of Uttarakhand & Ors decided on 26.07.2010.
3. In order to put the controversy in its proper perspective, few facts are necessary to be noticed. The applicant as well as respondent No. 4 belonged to the State Civil Service i.e. Provincial Civil Service (Executive) [for short P.C.S (Executive)] of the composite State of Uttar Pradesh. The respondent No. 4 is 1994 batch P.C.S officer, whereas the applicant is a 1997 batch P.C.S Officer The composite state of Uttar Pradesh was re-organized w.e.f 09.11.2000 under the U.P. Re-organization Act, 2000 (hereinafter referred to Re-organization Act of 2000). The re-organization led to creation of State of Uttarakhand. The Central Government vide its letter dated 30.09.2000 issued comprehensive guide lines for distribution and allocation of erstwhile employees of composite State of Uttar Pradesh amongst the successor State of Uttarakhand and Uttar Pradesh. Under section 73 of re-organization Act 2000 the Central Government was vested with the final authority to determine final allocation of employees of composite State of Uttar Pradesh between the Successor State of Uttarakhand and Uttar Pradesh. In order to facilitate the allocation of employees between the Successor State of Uttarakhand and Uttar Pradesh, the Central Government had the discretion to constitute Advisory Committee under section 76 of the Re-organization Act 2000. Section 77 of the Re-organization Act 2000 empowers the Central Government to give direction. On re-organization of the composite State of U.P, options on the subject of allocation were sought from the concerned employees. The State Advisory Committee appointed by the Central Government under Section 76 of Re-organization Act 2000, prepared tentative final allocation lists for allocation of erstwhile employees of composite State of U.P, which was circulated on 30.09.2002. The applicant herein being junior Officer was allocated to State of Uttarakhand and respondent No. 4 was allocated to State of U.P. The applicant being aggrieved against his allocation to the Uttarakhand challenged the decision before Honble High Court, Uttarakhand at Nainital by way of Civil Misc. Writ Petition No. 47287/2002. The Honble High Court stayed the transfer, relieving and allocation of the applicant. Finally the Honble High Court vide its judgment dated 11.12.2003 dismissed the writ petition. Aggrieved against the judgment dated 11.12.2003 the applicant filed SLP (Civil) No. 240784/03. By order dated 07.01.2004, the Honble Supreme Court directed to maintain status quo. At this juncture it would be relevant to mention that a large number of representations were being addressed to the Central Government by the employees, who were required to serve a State other than the one to which they were finally allocated. The respondent No. 2 i.e. Central Government addressed a letter dated 15.09.2004 to the Chief Secretary, Government of Uttarakhand (erstwhile Uttaranchal) to consider the request of mutual transfer based on broad consensus arrived between the State Government either by defining the terms and condition for such consideration or by framing suitable rules (Annexure A-3). The respondent No. 2 addressed another letter dated 08.06.2006 to the concerned successor State by reiterating the position expressed by its earlier communication dated 15.09.2004 (Annexure A-4). The Principal Secretary, government of U.P cum Member Secretary, State Advisory Committee issued a communication dated 06.09.2006 wherein the procedure of mutual transfer in the light of Central Government Letter dated 15.09.2004 and 08.06.2006 was laid down (Annexure A-5). A similar communication was issued by respondent No. 1 on 19.07.2007 (Annexure A-6). The respondent No. 4, who was allocated State of U.P, moved an application for mutual transfer in terms of above communication. His request was accepted and order to this effect was passed on 13.03.2008 (Annexure A-1), whereby Shri Divya Prakash Giri, who belonged to Uttarakhand Cadre and respondent No. 4, who belonged to State of U.P. Cadre, were transferred inter-state. The applicant withdrew his S.L.P, which was against the allocation of Uttarakhand on 21.01.2011. Consequent to that he joined the State of Uttarakhand on 15.04.2011. His name was included in the Gradation/Seniority List of P.C.S officers of State vide order dated 20.05.2011 in which he was placed below the respondent No. 4. Copy of Gradation/Seniority List dated 20.05.2001 is appended as Annexure A-2. The respondent No. 2 issued a communication on 09.01.2011 addressed to respondent No. 1 for determination of vacancies in promotion quota of I.A.S Cadre of Uttarakhand for the vacancies arising between 01.01.2010 to 31.12.2010 and requested the State of Uttarakhand to forward the names of eligible officers. The name of respondent No. 4 was placed at Sl. No. 11 whereas, the name of the applicant placed at Sl. No. 12 of the list prepared by the State of Uttarakhand.
4. The applicant is aggrieved against the order of State of Uttarkhand in including the name of respondent No. 4 firstly in selection and secondly in forwarding it to U.P.S.C for consideration / induction into IAS for State of Uttarakhand. The applicant stated that he had submitted a representation on 15.11.2011 against the inclusion of name of respondent No. 4 in contravention of the judgment passed by the Honble High Court, Uttarakhand in the case of M.C. Joshi & Ors (Supra) (Annexure A-10). Considering the representation of the applicant dated 15.11.2011 the D.O.P & T issued a letter on 05.12.2011 to respondent No. 1 seeking clarification regarding wrong inclusion of name of respondent No. 4 (Annexure A-11). The same was replied by the State of Uttarakhand vide communication dated 23.12.2011 (Annexure A-12) wherein it has been informed that no decision has been taken by the State Government in this regard and his name has been included as per seniority and no decision to the contrary can be taken in the matter. Hence the O.A.
5. Notice of motion was issued. Shri R.K. Pandey accepted notice on behalf of respondent No. 1. Shri Sunil, holding brief of Shri K.C. Sinha accepted notice on behalf of U.P.S.C and Shri Anil Dwivedi accepted notice on behalf of respondent No. 2. Dasti notice was issued for respondent No. 4.
6. The reply has been filed only on behalf of State of Uttarakhand/respondent No. 1. Neither respondent No. 2 and 3 nor respondent No. 4 have filed any reply. On the date of hearing Shri N.K. Mishra appearing on behalf of respondent No. 4, filed Misc. application, which is taken on record. The applicant has already filed R.A to reply of respondent No. 1. With the consent of parties, the matter was taken up for final disposal today at the admission stage itself.
7. The respondent No. 1 by filing Counter Affidavit resisted the claim of the applicant by taking preliminary objections firstly that this Tribunal has no jurisdiction; secondly, the applicant has not exhausted alternative remedy and thirdly, the O.A is barred by limitation as the applicant is impugning the order dated 13.03.2008.
8. In the R.A, the applicant has reiterated what has been stated in the O.A with the further submission that the respondents are adopting a pick and choose method in implementing the judgment in regard to this case inasmuch as they apply it where they want to help the officer and not in the case where they do not want. It is further submitted that this Tribunal has jurisdiction as the applicant has not challenged the order dated 13.03.2008 but the applicant has only sought implementation of judgment dated 26.07.2010 and to recommend the name of only eligible persons of cadre of Uttarakhand and not to include the name of respondent No. 4, whose mutual transfer to Uttarakhand pursuant to the Government of India Communication has been held to be illegal. The allegation of discrimination has also been highlighted.
9. We have heard Shri Satish Chaturvedi alongwith Shri Pankaj Srivastava for the applicant, Shri S.K. Om, counsel for respondent No. 1 and Shri N.K. Singh, counsel for respondent No. 4.
10. Learned counsel for the applicant vehemently argued that the preliminary objection raised by the respondents are only to frustrate the legal right of the applicant, which are crystallized in judgment dated 26.07.2010 passed in the case of M.C. Joshi and Ors (Supra). He contended that before approaching this Tribunal the applicant submitted representation for redressal of his grievance and for implementation of judgment in the case of M.C. Joshi & Ors (Supra), which was acted upon by the respondent No. 2 but the State of Uttarakhand in an arbitrary manner has rejected to implement the said judgment in the case of the applicant. Therefore, left with no remedy, he approached this Tribunal by way of instant Original Application for a direction to respondent No. 1 to delete the name of respondent No. 4 from the cadre of P.C.S Officers maintained by the Government of Uttarakhand. He further argued that the instant original application is maintainable because it relates to the induction of P.C.S Officers of Uttarakhand to I.A.S Cadre and in terms of Section 14 of Administrative Tribunals Act, 1985 (in short 1985 Act) this Tribunal has jurisdiction to entertain the O.A. He also argued that the respondents have acted in very irresponsible and arbitrary manner by not applying the ratio of the judgment in the case of M.C. Joshi (Supra) in relation to the applicant whereas, in the case of other officers, they have implemented the said judgment. Thus the applicant has clearly been discriminated upon. Lastly, he prayed that the respondent No. 1 be directed to withdraw the respondent No. 4 from the panel forwarded to U.P.S.C for consideration of the cases of P.C.S Officers against 9 vacancies for induction to I.A.S of Uttarakhand Cadre. He argued that the judgment in the case of M.C. Joshi (Supra) is the judgment in rem and cannot be said to be judgment in personem, as Honble High Court has struck down the communication dated 15.09.2004, 08.06.2006, 06.09.2006 and 19.07.2007 and being violative of provisions of the Re-organization Act 2000.
11. On the other hand Shri Om, learned counsel for the respondents strongly argued that the present original application deserves to be dismissed for want of jurisdiction in terms of Section 14 of 1985 Act. To elaborate his argument he submitted that the applicant being State Cadre Officer cannot maintain the present original application in terms of Section 14 of 1985 Act, therefore, the O.A be dismissed on this ground alone. Secondly, he argued that the O.A also deserves to be dismissed as the applicant has not exhausted alternate remedy of appeal or representation for redressal of his grievance as per Section 20 of 1985 Act. Thirdly, he argued that the O.A needs to be dismissed on the ground of delay and latches. He submitted that by way of the instant original application the applicant is impugning the order dated 13.03.2008 by which the respondent No. 4 has been transferred on his mutual request in the year 2012. Therefore, in terms of Section 21 of 1985 Act the O.A is liable to be dismissed. Lastly he argued that no benefit of the judgment passed in the case of M.C. Joshi and others (Supra) can be extended to the applicant as he was not party to the writ petition. He further argued that the said judgment is in personem and cannot be said to be in rem, therefore, also the O.A deserves to be dismissed.
12. Shri N.K. Mishra, counsel for respondent No. 4 endorsed and reiterated the arguments advanced by the learned counsel representing the respondent No. 1. In addition to that his sole submission was that the applicant has already preferred Review Application against the judgment, in which notice has been issued. He contended that the respondent No. 4 was not party to the judgment of which the applicant is seeking implementation, therefore, the same cannot be used against the respondent No. 4. Lastly he prayed for dismissal of O.A.
13. We have given our thoughtful consideration to the submissions made by the learned for the respective parties.
14. Before adverting to the merits of the case we deem it appropriate to firstly decide the preliminary objections raised by the respondents regarding Jurisdiction, alternate remedy and limitation. Firstly we shall deal with the objection on the point of Jurisdiction.
JURISDICTION:
Section 14 of Chapter 3 of Administrative Tribunal Act, 1985 Act (hereinafter referred to as the 1985 Act)deals with the jurisdiction, power and authority of Central Administrative Tribunal, which reads as under: -
14. Jurisdiction, powers and authority of the Central Administrative Tribunal.-
(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court in relation to-
(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence service, being, in either case, a post filled by a civilian;
(b) all service matters concerning-
(i) a member of any All-India Service; or
(ii) a person [not being a member of an All-India Service or a person referred to in clause (c) ] appointed to any civil service of the Union or any civil post under the Union; or
(iii) a civilian [not being a member of an All-India Service or a person referred in clause (c) ] appointed to any defence services or a post connected with defence,and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owned or controlled by the Government;
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment.
[Explanation - for the removal of doubts, it is hereby declared that references to Union in this sub-section shall be construed as including references also to a Union territory.] (2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations [or societies] owned or controlled by Government, not being a local or other authority or corporation [or society] controlled or owned by a State Government:
Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different date may be so specified under this sub-section in respect of different classes of or different categories under any class of, local or other authorities or corporations [or societies].
(3) Save as otherwise expressly provided in this Act, the Central Administrative tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court [***] in relation to-
a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation [or society]; and
(b) all service matters concerning a person [other than a person referred to in clause (a) of sub-section (1) ] appointed to any service or post in connection with the affairs of such local or other authority or corporation [or society] and pertaining to the service of such person in connection with such affairs.
15. From perusal of Clause (a), it is clear that the matter relating to the recruitment and matters concerning recruitment to any All India Service or to any civil service of the Union or a civil post under the Union, this Tribunal have jurisdiction.
16. The promotion of Members of State Civil Service to I.A.S is governed by the provisions of Indian Administrative (Appointment by Promotion) Regulation, 1955 (for short 1955 Regulation). As per Regulation 3, the State Government is to constitute a Selection Committee to consider and recommend the names of State Cadre Officer for their induction into I.A.S. The manner in which the list of eligible officers is to be prepared has been laid down in Regulation 5. Regulation 6 mandates that select list prepared as provided in Regulation 5 by the Selection Committee, is required to be forwarded for consultation with the U.P.S.C. The list is to be reviewed every year. Regulation 7 deals with select list. Regulation 9 deals with appointment in service from the select list. The above Regulations read as under: -
3. CONSTITUTION OF THE COMMITTEE TO MAKE SELECTION: -
3 (1) There shall be constituted for a State Cadre or a Joint Cadre specified in column 2 of Schedule, a Committee consisting of the Chairman of the Commission or where the Chairman is unable to attend, any other Member of the Commission representing it and other members specified in the corresponding entry of column 3 of the said schedule;
Provided that
(i) no member of the Committee other than the Chairman or the Member of the Commission shall be a person who is not a member of the Service.
(iA) the nominees of the Government of India shall not belong to the cadre of the State for which the meeting of the Committee is to be held?.
(ii) that the Central Government may after consultation with the State Government concerned amend the Schedule.
3(2) The Chairman or the member of the Commission shall preside at all meetings of the Committee at which he is present.
3(3) The absence of a member, other than the Chairman or Member of the Commission, shall not invalidate the proceedings of the Committee if more than half the members of the Committee had attended its meetings.
3(4) Deleted.
4. Deleted.
5. PREPARATION OF A LIST OF SUITABLE OFFICERS:-
5 (1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the Service. The number of members of the State Civil Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned, and shall not exceed the number of substantive vacancies as on the 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;
Provided that no meeting of the Committee shall be held, and no list for the year in question shall be prepared when ;
(a) there are no substantive vacancies as on the first day of January of the year in the posts available for the members of the State Civil Service under Rule 9 of the Recruitment Rules; or(a)
(b) the Central Government in consultation with the State Government decides that no recruitment shall be made during the year to the substantive vacancies as on the first day of January of the year in the posts available for the members of the State Civil Service under Rule 9 of the Recruitment Rules;
Provided further that where no meeting of the Committee could be held during a year for any reason other than that provided for in the first proviso as and when the Committee meets again, the Select List shall be prepared separately for each year during which the Committee could not meet as on the 31st December of each year.
EXPLANATION:- In case of Joint Cadres, a separate select list shall be prepared in respect of each State Civil Service.
5(2) The Committee shall consider for inclusion to the said list, the cases of members of the State Civil Services in the order of seniority in that service of a number which is equal to three times the number referred in sub-regulation (1).
Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers;
Provided further that in computing the number for inclusion in the field of consideration, the number of officers referred to in sub-regulation (3) shall be excluded;
Provided also that the Committee shall not consider the case of a member of the State Civil Service unless on the first day of January of the year for which the Select List is prepared, he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government.
Provided also that in respect of any released Emergency Commissioned or Short Service Commissioned officers appointed to the State Civil Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of January of the year for which the Select List is prepared, in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government.
EXPLANATION: The powers of the State Government under the third proviso to the sub-regulation shall be exercised in relation to the members of the State Civil Service of constituent State, by the Government of that State.
5(2A): Deleted.
5(3): The Committee shall not consider the cases of the members of the State Civil 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:
Provided that a member of the State Civil Service whose name appears in the Select List prepared for the earlier year before the date of the meeting of the Committee and who has not been appointed to the service only because he was included provisionally in that Select List shall be considered for inclusion in the fresh list to be prepared by the Committee, even if he has in the meanwhile, attained the age of fifty four years.
Provided further that a member of the State Civil Service who has attained the age of fifty four years on the first day of January of the year for which the Select List is prepared, shall be considered by the Committee, if he was eligible for consideration on the first day of January of the year or any of the years immediately preceding the year in which such meeting is held but could not be considered as no meeting of the Committee was held during such preceding year or years under item (b) of the proviso to sub-regulation (1).
5(3A) The Committee shall not consider the case of such member of the State Civil Service who had been included in an earlier select list and ?
(a) had expressed his unwillingness for appointment to the service under regulation 9;
Provided that he shall be considered for inclusion in the Select List, if before the commencement of the year, he applies in writing, to the State Government expressing his willingness to be considered for appointment to the service;
(b) was not appointed to the service by the Central Government under regulation 10.
5(4) The Selection Committee shall classify the eligible officers as ?Outstanding?, ?Very Good?, ?Good? and ?Unfit? as the case may be on an overall relative assessment of their service records.
5 (5) The List shall be prepared by including the required number of names first from amongst the officers finally classified as ?Outstanding? then from amongst those similarly classified as ?Very Good? and thereafter from amongst those similarly classified as ?Good? and the order of names inter-se within each category shall be in the order of their seniority in the State Civil Service.
Provided that the name of an officer so included in the list shall be treated as provisional if the State Government withholds the integrity certificate in respect of such an officer or any proceedings, departmental or criminal are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government.
Provided further that while preparing year-wise select lists for more than one year pursuant to the 2nd proviso to sub-regulation (1), the officer included provisionally in any of the Select List so prepared, shall be considered for inclusion in the Select List of subsequent year in addition to the normal consideration zone and in case he is found fit for inclusion in the suitability list for that year on a provisional basis, such inclusion shall be in addition to the normal size of the Select List determined by the Central Government for such year.
EXPLANATION I: The proceedings shall be treated as pending only if a charge-sheet has actually been issued to the officer or filed in a Court as the case may be.
EXPLANATION II: The adverse thing which came to the notice of the State Government rendering him unsuitable for appointment to the service shall be treated as having come to the notice of the State Government only if the details of the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential.
5(6) Omitted.
5(7) Deleted.
6. CONSULTATION WITH THE COMMISSION: The list prepared in accordance with regulation 5 shall then be forwarded to the Commission by the State Government along with:
(i) the records of all members of the State Civil Service included in the list;
(ii) the records of all members of the State Civil Service who are proposed to be superseded by the recommendations made in the list;
(iii) Deleted; (iv) The observations of the State Government on the recommendations of the Committee.
6 (A) The State Government shall also forward a copy of the list referred to in regulation to the Central Government and the Central Government shall send their observations on the recommendations of the Committee to the Commission.
7. SELECT LIST.
7 (1) The Commission shall consider the list prepared by the Committee alongwith:-
(a) the documents received from the State Government under regulation 6; (b) the observations of the Central Government and unless it considers any change necessary, approve the list.
7 (2) If the Commission considers it necessary to make any changes in the list received from the State Government, the Commission shall inform the State Government and the Central Government of the changes proposed and after taking into account the comments, if any, of the State Government and the Central Government, may approve the list finally with such modifications, if any, as may, in its opinion, be just and proper.
7 (3) The list as finally approved by the Commission shall form the Select List of the members of the State Civil Service.
Provided that if an officer whose name is included in the Select List is, after such inclusion, issued with a charge sheet or a charge sheet is filed against him in a Court of Law, his name in the Select List shall be deemed to be provisional.
7 (4) The Select List shall remain in force till the 31st day of December of the year in which the meeting of the Selection Committee was held with a view to prepare the list under sub-regulation (1) of regulation 5 or up to 60 days from the date of approval of the Select List by the Commission under sub-regulation (1) or, as the case may be, finally approved under sub-regulation (2), whichever is later:
Provided also that where the select list is prepared for more than one year pursuant to the second proviso to sub-regulation (1) of regulation 5, the select lists shall remain in force till the 31st day of December of the year in which the meeting was held to prepare such lists or upto sixty days from the date of approval of the select lists by the Commission under this regulation, whichever is later.
Provided that where the State Government has forwarded the proposal to declare a provisionally included officer in the Select List as ?Unconditional?, to the Commission during the period when the Select List was in force, the Commission shall decide the matter within a period of forty-five days or before the date of meeting of the next Selection Committee, whichever is earlier and if the Commission declares the inclusion of the provisionally included officer in the Select List as unconditional and final, the appointment of the concerned officer shall be considered by the Central Government under regulation 9 and such appointment shall not be invalid merely for the reason that it was made after the Select List ceased to be in force.
Provided further that in the event of any new service or services being formed by enlarging the existing State Civil Service or otherwise being approved by the Central Government as the State Civil Service under clause (j) of sub-regulation (1) of regulation 2, the Select List in force at the time of such approval shall continue to be in force until a new list prepared under regulation 5 in respect of the members of the new State Civil Service, is approved under sub-regulation (1) or as the case may be, finally approved under sub-regulation (2).
7 (5) Omitted.
8. Omitted.
9. APPOINTMENTS TO THE SERVICE FROM THE SELECT LIST:
9 (1) Appointment of a member of the State Civil 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 Civil Service appear in the Select List for the time being in force during the period when the Select List remains in force:
Provided that the appointment of members of the State Civil Service shall be made in accordance with the agreement arrived at under clause (b) of sub-rule (3) of rule 8 of the Recruitment Rules in the order in which the names of the members of the State Civil Service occur in the relevant parts of the Select List for the time being in force.
Provided further that the appointment of an officer, whose name has been included or deemed to be included in the Select List provisionally, under proviso to sub-regulation (5) of regulation 5 or under the proviso to sub-regulation (3) of regulation 7, as the case may be, shall be made within sixty days after the name is made unconditional by the Commission in terms of the first proviso to sub-regulation (4) of regulation 7:
Provided also that in case a Select List officer has expressed his unwillingness for appointment to the service, he shall have no claim for appointment to the service from that select list unless he informs the Central Government through the State Government before the expiry of the validity period of the Select List, revoking his earlier expression of unwillingness for appointment to the service".
17. From perusal of the above it is clear that in terms of Regulation 3, a Selection Committee is to be constituted by the respective State for considering and recommending the names of State Cadre Officer/Non-State Cadre Officer for their induction to the I.A.S in terms of Regulation 9. The list so prepared by the Selection Committee as per regulation 5 is to be forwarded with their recommendation to the Central Government with their observation on the recommendation of the Committee to the Commission as per Regulation 6(a). Therefore, the consideration of name by the State Committee constituted under Regulation 3 is step towards an appointment to an I.A.S in terms of Regulation 9. Therefore, in terms of Section 14(1)(a), it comes under matter concerning recruitment . Therefore, we are of the view that this Tribunal has jurisdiction to entertain the O.A at the behest of the officers of the State Cadre, whose name has been considered and recommended by the Selection Committee of the State Government. Our view also finds support from the Full Bench decision of Banglore Bench of Central Administrative Tribunal in the case of T. Shyam Bhatt and Anr. Vs. U.O.I 7 Ors reported in 1994-96 AT (Full Bench judgments) 213, where the Full Bench have held as under: -
40. In view of the above the applications are liable to be rejected. Our answer to the questions formulated by the Division Bench are as follows: -
Question Answer
1. The Tribunal has jurisdiction to entertain the applications raising dispute regarding the recommendations made by the State Government under Regulation 3 of the I.A.S (Appointed by Selection) Regulation, 1956 Therefore, the objection raised by the respondents qua jurisdiction is decided against the respondents
18. Alternative Remedy Now we would consider the second objection raised by the respondents with regard to alternative remedy as provided under section 20 of the 1985 Act. For convenience Section 20 of the 1985 Act reads as under: -
20. Application not to be admitted unless other remedies exhausted (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances, -
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial
19. It is no doubt true that Sub-section (1) states "......the Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances." The term "ordinarily" in the context means generally, and not always. The provision does not bar the ultimate jurisdiction of the Administrative Tribunal but it only requires the party to exhaust the other remedies available. The aim of introducing this provision is to provide for an additional forum and certain opportunities for the redressal of grievances and to prevent short-circuiting of normal Departmental procedures specified under the service rules. In Kailash Chandra v. Union of India, while dealing with the interpretation of the words "should ordinarily be retained" in Rule 2046(2)(a) of Railway Establishment Code the Apex Court held that the intention is made clear and beyond by the use of the word "ordinarily" and ordinarily means in the large majority of cases, but not invariably. Moreover in the present case, the applicant has already moved representation on 15.1.2011, which was acted upon by the respondent No. 2 as they sought clarification vide their communication dated 15.12.2011 from the respondent No. 1, which was replied by the respondent No. 1 vide letter dated 23.12.2011, therefore it does not lie in the mouth of the respondents to raise this plea that the applicant has not exhausted the remedy for redressal of his grievance. Therefore, this objection also has no force and hence rejected.
DELAY AND LATCHES: -
20. The third objection raised by the respondents is with regard to delay and latches. It is contended by the learned counsel for respondents that the O.A deserves to be dismissed in terms of Section 21 of 1985 Act as by way of the instant original application the applicant has impugned the order dated 13.03.2008 by filing the O.A in the year 2012. Therefore, the O.A be dismissed being time barred. We have given our thought full consideration. By way of present O.A the applicant seeks implementation of ratio of the judgment passed in the case of M.C. Joshi (Supra) and consequently seeks direction that the respondents be directed not to include the name of the respondent No. 4 in the list of P.C.S Officer and to forward the same to the U.P.S.C as their action is against the ratio of judgment in the case of M.C. Joshi (Supra). Once the competent court of law has set aside the communication acting upon which the respondents have passed the order in favour of respondent No. 4, therefore, it is incumbent upon the respondents to faithfully apply the ratio of the judgment and not to act contrary to the said judgment whereas, in the present case, despite the above judgment the official respondents have recommended the name of respondent No. 4. Therefore, the objection raised by the respondents does not sustain as the applicant is only seeking implementation of the judgment in the case of M.C. Joshi and consequential relief arising out thereof.
Judgment in Personem or rem : -
21. Lastly counsel for the respondents raised objection that the judgment in the case of M.C. Joshi & Ors (Supra) is in personem and cannot be said to be in rem . To better appreciate that what is the meaning of rem we deem it appropriate to reproduce the meaning described in Blacks Law Dictionary 5th Edition, which reads as under: -
In Blacks Law Dictionary 5th Edition, it is stated that judgment in rem is: -
An adjudication pronounced upon the status of some particular thing or subject matter, by a tribunal having competent authority.
In Halsburrys Law of England, 4th Edition, Vol. 16 the meaning of Judgment in Rem is given at para 1522, as below: -
1522. Meaning of judgment in rem. A judgment in rem may be defined as the judgment of a Court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing, as distinct from the particular interest in it of a party to the litigation. Apart from the application of the term to persons it must affect the res in the way of condemnation, forfeiture, declaration of status or title, or order for sale or transfer. (Emphasis supplied)
22. We have perused the judgment dated 26.07.2010 passed in the case of M.C. Joshi & Ors. (Supra). The Division Bench of Honble High Court, Uttarakhand after considering the provisions of Re-organization Act, subsequent letters issued by the Union of India dated 23.09.2004, 08.06.2006 and communications of State government dated 06.09.2006 and 19.07.2007 have struck down the provision of mutual transfer being violative of provisions of Re-organization Act. Not only this , the Honble High Court has held that, firstly, the Central government has acceded its jurisdiction in issuing the communication to the State Government to frame rules for mutual transfer and Secondly the orders passed by the State Government acting upon them. Therefore, it cannot be said that the judgment is in personem and not in rem. At this juncture it is relevant to reproduce para 23 and 24 of the said judgment: -
23. It is also imperative for us to deal with the submissions advanced by the learned counsel for the respondents, on the basis of Sections 76 and 77 of the Reorganization Act, 2000 (see para 21 above). Sections 76 and 77 of the 20 Reorganization Act, 2000 were in the nature of supporting measures, provided to afford assistance to the Central Government to discharge its principal responsibility of finally allocating employees (vested in the Central Government under Part VIII of the Reorganization Act, 2000). The facility of appointing Advisory Committees, under Section 76 of the Reorganization Act, 2000, was for the purpose of assisting it i.e., the Central Government to discharge of any of the functions under this Part. We have already concluded in the foregoing paragraph, that the principal responsibility vested in the Central Government was to finally allocate the employees of the composite State of Uttar Pradesh, to one or the other of the successor States, and having discharged the aforesaid responsibility the Central Government had been rendered functus officio. The assistance at the hands of an Advisory Committee(s) being limited to the responsibility vested in the Central Government, under Part VIII of the Reorganization Act, 2000, we are of the considered view, that after the Central Government had issued Final Allocation Lists on 22.04.2003, and had thereby completely discharged the responsibility vested in it under Part VIII of the Reorganization Act, 2000, the role of the Advisory Committee(s) appointed by the Central Government under Section 76 of the Reorganization Act, 2000, would also be deemed to have come to an end. Reference to Section 76 of the Reorganization Act, for an activity after the Central Government had issued the Final Allocation Lists on 22.04.2003, is therefore, wholly misconceived. We shall now advert to Section 77 of the Reorganization Act, 2000, on which reliance was placed by the learned counsel for the respondents to demonstrate the source of the authority of the Central Government in issuing the directions contained in the letters / orders dated 15.09.2004 / 08.06.2006. For a determination of the instant issue, reference must be made to the words necessary for giving effect to the foregoing provisions of this Part, contained in Section 77 of the Reorganization Act, 2000. The aforesaid words clearly make out, that the directions issuable at the hands of the Central Government (to the concerned State Governments) were for the pointed purpose of its assistance in the discharge of responsibilities vested under Part VIII of the Reorganization Act, 2000. This provision is also in the nature of supporting measures provided to afford assistance to the Central Government in the discharge of its principal responsibility (under 21 Section 73 of the Reorganization Act, 2000) of finally allocating employees of the composite State of Uttar Pradesh to one or the other of the successor States. The Central Government, in our considered view, having finally discharged the aforesaid responsibility of finally allocating employees of the composite State of Uttar Pradesh on 22.04.2003, no further directions could be issued by the Central Government to the State Governments under Section 77 of the Reorganization Act, 2000 (i.e., after 22.04.2003), on the said subject. Detailed reasons in this behalf have been recorded by us in the preceding paragraph as also in the instant paragraph hereinabove. And if the Central Government had issued the orders under reference (dated 15.09.2004 / 08.06.2006) by invoking the authority vested in it under Section 77 of the Reorganization Act, 2000, as is the case of the respondents before this Court, then the same must be deemed to be beyond the scope of the authority vested in it. On the aforesaid consideration of the matter, the inevitable conclusion has to be, that the letters / orders dated 15.09.2004 / 08.06.2006, had been issued by the Central Government, without any legal authority. Based on the aforesaid conclusion, it is necessary to further hold, that any orders based on the aforesaid letters / orders of the Central Government, would also have no validity or legal sanctity.
24. The issue in hand can be examined from another angle. The object contained in Part VIII of the Reorganisation Act, 2000 was to finally allocate the employees of the composite State of Uttar Pradesh to the successor States. This authority was vested in the Central Government under Section 73 of the Reorganisation Act, 2000. In the discharge of the aforesaid responsibility, the Central Government could constitute Advisory Committee(s) under Section 76 of the Reorganisation Act, 2000 for its assistance. The Central Government could also issue directions to the concerned State Governments, for giving effect to the provisions contained in Part VIII of the Reorganisation Act, 2000, naturally, to fulfill the responsibility vested in it (the Central Government) under Section 73 of the Reorganisation Act, 2000. The question however is, whether the Central Government could have fully and finally delegated its responsibility, to finally allocate employees of the composite State of Uttar Pradesh, to its successor States. The instant issue has arisen because of the stance adopted by the Central Government through the learned counsel appearing on behalf of the Union of India, that the letters / orders dated 15.09.2004 / 08.06.2006 had been issued by the Central Government under Section 77 of the Reorganisation Act, 2000 in order to discharge the responsibility vested in it under Section 73 of the Reorganisation Act, 2000. The orders dated 15.09.2004 / 08.06.2006 had been issued by the Central Government, requiring the successor State Governments, to frame by consensus, terms and conditions for accepting requests for transfer, submitted by employees who had already been finally allocated to one or the other successor State, by the Central Government. In other words, just like the Central Government had framed guidelines for final allocation of the employees of the composite State of Uttar Pradesh on 30.09.2000, the Central Government required the successor States to frame guidelines / policy for transferring employees who had been finally allocated by the Central Government. And then, by mutual consent to transfer, an employee finally allocated to a State, to the other State. Stated simply, the Central Government through the letters/orders dated 15.09.2004/ 08.06.2006, permitted the successor States to transfer, an employee finally allocated to the successor State of Uttar Pradesh by the Central Government, to the State of Uttarakhand, and vice versa
23. Once the Honble High Court has struck down the communication dated 23.09.2004, 08.06.2006 issued by the Central Government and, communication of State government dated 06.09.2006 and 19.07.2007 extending the benefit of mutual transfer as being violative of provisions of Regulation Act 2000, any order passed in this regard is void abnitio. More so, when the Honble Court held that any order based on the aforesaid letter/orders of the Central government would have no validity in legal sanctity. In concluding para the Honble High Court held as under: -
49. In view of the conclusion recorded by us herein above, the instant writ petition is liable to be allowed and the same is accordingly allowed. The impugned letters/orders issued by the Central Government dated 15.09.2004/08.06.2006 are hereby set aside, as the same have been issued in violation of the provisions of the Constitution of India. The aforesaid orders are hereby also set aside because they had been issued beyond the power vested in the Central Government under the provisions of the Re-organization Act, 2000. The policy decision dated 06.09.2006/19.07.2007 of the Successor States of Uttarakhand and Uttar Pradesh, are set aside, as the same were in excess of the power vested in the State Executive / administration under the Constitution of India, as also under the Re-organization Act, 2000, and also, because they have been issued without the active consensus of the successor State of Uttarakhand and Uttar Pradesh. The impugned orders of transfer dated 18.05.2007 are also hereby set aside, as the same were unsustainable under the provisions of the Constitution of India, as also under the provision of the Re-organization Act, 2000. The said transfer orders are also set aside because they had been issued in violation of the guidelines issued by the State Government, without application of mind, on extraneous consideration and because they were actuated legal mala fides. Therefore, it cannot be said from any angle that the ratio of the judgment is applicable only interse parties and judgment is in personem and not in rem. Our view finds support from the judgment of Apex Court in the case of Amrit Lal Berry Vs. Collector of Central Excise, New Delhi and Others 1975 (4) Supreme Court Cases 714, Honble Supreme Court in para 24 has held as under: -
24. .We may, however, observe that when a citizen aggrieved by the action of a government department has approached the Court and obtained a declaration of law in his favour, others, in like circumstances, should be able to reply on the sense of responsibility of the department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to court. Even in the case of Union of India and another Vs. Raghubir Singh and Ors. AIR 1989 (SC) 1933, Lordship has held as under
Where a statute is declared invalid in India it cannot be reinstated unless constitutional sanction is obtained therefore, by a constitutional amendment or an appropriately modified version of the statute is enacted which accords with constitutional prescription. 8. Taking note of the hierarchical character of the judicial system in India, it is paramount important that the law declared by this court should be certain, clear and consistent. It is commonly known that most decisions of the Courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law.
9. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.
24. In the case of SAMTEL India Limited Vs. Commissioner of Central Excise, Jaipur 2003(11) Supreme Court Cases 324, the Apex Court has held that once the validity of provisions is challenged and validity is upheld by reading down the provision then it is not necessary that in all subsequent proceedings the validity must again be challenged. It is sufficient if a party claims that the provision has to be read in the manner laid down by the Supreme Court.
25. In the case of G.C. Ghose and others Vs. U.O.I & Ors 1991 Supp (2) Supreme Court Cases 497, it is held that benefit of a judgment is to be given to similarly situated persons where they are party to the proceeding or not. Honble High Court, Allahabad in the case of Oriental Insurance Company Ltd. Vs. Pushpa Devi and others reported in 2008 (2) ADJ 505 (DB) in para 5 has held as under: -
5. Moreover, in Common Cause V. Union of India and others 2004 (5) SCC 222 , it was held by the Supreme Court itself that without laying down the law cannot be read as a ratio of the judgment and certainly not as a precedent. Therefore, when in Smt. Shanti Pathak and others (Supra) no reference has been made about the well considered judgment of the Bench of similar strength in Nicolletta Rohtagi and others (Supra), the same cannot be said to be ratio decidendi. In 2007 AIR SCW 2362 (Oriental Insurance Co. Ltd Vs. Meena Variyal and others) it was held by the Supreme Court that an obiter dictum of this Court (read as Supreme Court) may be binding only on the High Courts in the absence of a direct pronouncement on that question elsewhere by this Court (read as Supreme Court). Here we are bound by the expressed pronouncement. Unless a pronouncement forms a ratio decidendi, it cannot bind in rem. Judgment in rem is one which declares, defines, or otherwise determines the status of a person or of a thing, that is to say, the jural relation of the person or thing to the word generally following ratio of three judges Bench judgment reported in (2006) 1 SCC 212, Satrucharla Vijaya Rama Raju Vs. Nimmaka Jaya Raju and others. That apart a statute is an edict of the legislature and in constructing a statute, it is necessary to see the intention of its maker. If a statutory provision is open to more than one interpretation, the Court has to choose that interpretation which represents the true intention of the legislature. AIR 2007 SC 1563, National Insurance Co. Ltd. Vs. Laxmi Narain Dhut supports the same.
26. It is not disputed that Letter dated 15.09.2004/08.06.2006 and the policy decision dated 06.09.2006 and 19.07.2007 have been set aside being issued in violation of provisions of Constitution of India and in excess of the power vested in the State Executive / administration under the Constitution of India, as also under the Re-organization Act, 2000 in excess of the power vested in the State Executive / administration under the Constitution of India, as also under the Re-organization Act, 2000. It has not been shown by the respondents that the judgment in the case of M.C.Joshi have been unsettled by the higher court and as on date it holds field and as such the said decision is binding upon the State. Therefore, we have no hesitation in our mind to hold that the ratio of the judgment in the case of M.C. Joshi & others (Supra) is in rem. The ratio of the said judgment is to be applied to all persons, who are effected by the above two communications, which have been set aside. In view of the observations made above, the objection raised by the respondents is rejected.
Prospective Application:
27. Now considering the objection raised by the respondents with regard to applicability of the judgment that the judgment is to be applied prospectively and cannot be applied retrospectively. It is settled law that unless it is stated in the judgment that it will apply prospectively it is presumed that the same is having retrospective effect. Reliance in this regard is placed upon the decision of Honble Apex Court rendered in the case of P.V. George & Ors. Vs. State of Kerla & Ors AIR 2007 (Supreme Court) 1034. In para 18 and 19 of the said judgment Honble Apex Court has held as under: -
18. If the said Rules ultimately were held to be unconstitutional, it was required to be given effect to. The law declared by a court is ordinarily affects the rights of the parties. A court of law having regard to the nature of adversarial system of our justice delivery system exercises adjudicatory role. Legal consequences are determined in respect of the maters which had taken place in the past.
19. It may be true that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. The doctrine of prospective overruling although is applied to overcome such a situation, but then it must be stated expressly. The power must be exercised in the clearest possible term. The decisions of this Court are clear pointer thereto.
28. In the case of M.A Murthy vs. State of Karnataka and Ors reported as 2003 (7) Supreme Court Cases 517, it is held in para 8 of the judgment that it is for this court to indicate as to whether decision in question will apply prospectively. In other words there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling.. In the case of Om Prakash Awasthi Vs. State of U.P and others 2009 (7) ADJ 1 (DB) page 1, Honble High Court, Allahabad in para 18 to 23 has held as under: -
18. Even if we assume that such a course is open for this Court, the Division Bench in the case of Satish Kumar (Supra) has nowhere observed that the enunciation of law made shall apply prospectively. Recourse to the principle of prospective overruling is not ordinarily resorted to and the Court resorts to this as a device innovated to avoid reopening of settled issue, to prevent multiplicity of proceeding and to avoid uncertainty and avoidable litigation. The learned Single judge in the case of Jagdish Prasad Tewari (Supra) more as a dictum, than as a principle held the decision to operate prospectively. No principles of law or precedents were considered to come to the aforesaid conclusion.
19. True it is that the decision of the case of Jagdish Prasad Tewari (Supra), has been affirmed in Special Appeal No. 1076 of 2007 (Lalji Patel Vs. District Inspector of Schools, Jaunpur) but the Division Bench while dismissing the above Special Appeal has not gone into this question at all. We have reproduced the judgment of the Division Bench in Special Appeal and from its reading it is evident that no such submission was advanced or a question of prospective application of the judgment was adjudicated. It is trite that a decision is an authority for what it actually and explicitly decides and not for what logically flows from it. The enunciation of reason or principle alone is binding as precedent. It has been said long time ago that a case is only an authority for what it actually decides and not what logically flows from it. Mere dismissal of the special appeal would in our opinion not mean that the view taken by the learned Single judge in the case of Jagdish Prasad Tewari (Supra) that the judgment of the Division Bench in the case of Satish Kumar (Supra) shall govern the law prospectively has been approved.
20. In our opinion the decision of the Court on a principle of law is applicable to all cases and the doctrine of prospective overruling is an exception to the normal principle of law. Interpretation of law is presumed to be law at all times, right from inception. When the Court decides that the interpretation of a particular provision as given earlier was not legal, it in effect declares that the law as enunciated stood from the beginning and that it was never the law otherwise. The doctrine of prospective overruling when resorted to has to be stated expressively and this power must be exercised in the clearest possible terms. The authorities of the Supreme Court in Dr. Suresh Chandra Verms (Supra) and M.A Murthy (Supra) relied on by Mr. Shashi Nandan have been quoted in the preceding paragraph of the judgment. Further the judgment of the Supreme Court in the case of P.V George and others Vs. State of Kerla and others, AIR 2007 SC 1034, do also lend support to the aforesaid view. In this case it has been held as follows: -
18. If the said Rules ultimately were held to be unconstitutional, it was required to be given effect to. The law declared by a court is ordinarily affects the rights of the parties. A court of law having regard to the nature of adversarial system of our justice delivery system exercises adjudicatory role. Legal consequences are determined in respect of the maters which had taken place in the past.
19. It may be true that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. The doctrine of prospective overruling although is applied to overcome such a situation, but then it must be stated expressly. The power must be exercised in the clearest possible term. The decisions of this Court are clear pointer thereto.
21. It is useful to refer to the following passage from the book Principles of Statutory Interpretation (11th Edition 2008) written by Justice G.P. Singh in this connection:
The law declares by a Court has retrospective effect, if not otherwise stated to be so. The Supreme Court may in rare cases resort to prospective overruling to avoid injustice in cases, where the earlier view had been acted upon. The High Court have no power to prospective overruling but they may without applying this doctrine grant limited relief in exercise of equity jurisdiction.
22. We respectfully accept it as the correct statement of law but refrain ourselves from expressing any opinion in regard to the power of the High Court of prospective overruling.
23. From the principle and precedents as discussed above leave no manner of doubt that the enunciation of law by this Court shall govern the field retrospectively if not otherwise stated to be so. The Division Bench in Satish Kumars case (Supra) had nowhere observed that the enunciation of law made by it shall apply prospectively. The Division bench having not said so, in our opinion, the learned Single Judge in the case of Jagdish Prasad Tewari (Supra) erred in holding that the judgment of the Division will govern the law prospectively and hence the same is overrules.
29. Applying the above ratio we are of the view that the ratio in the judgment of M.C. Joshi & Ors (Supra) cannot be said to be applied prospectively. Firstly it is not held by the Division Bench that it will apply prospectively. Secondly, once it has been categorically held that all consequential action pursuance to the Notification dated 15.09.2004 is held to be illegal and contrary to the provision of re-organization Act 2000 then it means that all actions taken by the respective State Government is held to be illegal and nullity in the eyes of law. Moreover, in the present case, the objection even cannot be raised because the selection is in process. Despite having the above judicial pronouncements the State Government is not applying its ratio. Since the State Government has not challenged the orders of Division Bench of Honble High Court in the higher forum then it is presumed that the same has been accepted. Once it has been accepted then it is to be applied. Non-application of the ratio resulted in forwarding the name of the respondent No. 4 for considering in selection list dated 20.05.2011. Therefore, also this objection is not sustainable hence it is also decided against the respondents.
Discrimination:
30. The concept of Fundamental Rights has been accepted in all modern democratic constitutions. Fundamental rights are aspects natural law. These are bundle of rights which every human being, every where, at all times ought to possess, fundamental rights are also considered as inalienable. They are natural and basic rights guaranteed by the Constitution. The prohibition contained in the Article 14 is in absolute terms. Every citizen is equal before the law and he is entitled to equal protection of the laws to persons and .situations of the like nature. The guarantee of equal protection of law is available against every State action. Article 14 assures equality to all persons before law. According to the said Article the State shall not deny to any person 'Equality before the law' or equal protection of laws within the territory of India. The law as has been interpreted and declared by the Supreme Court in series of cases is consistent from the very beginning and it has been clearly laid down that it is the mandate of Article 14 that same law must be made applicable to similarly placed persons. It has been held by the Lordships of The Honble Supreme Court in Kishan Singh v. State of Rajasthan (AIR 1955 SC 795) that equal protection means the right of equal treatment in similar circumstances. Thus it is clear that equal treatment must be in the privileges conferred and in the liabilities imposed.
26. In the case of Charanjit Lal Chowdhury vs. The Union of India and others, , it has been laid down that Article 14 lays down an important fundamental right which should be closely and vigilantly guarded.
27. The Constitution Bench of the Supreme Court in Jagan Nath Parasad Vs State of U.P. Air 1961 Sc Page 45 had clearly enunciated that the concept of equal protection of laws postulates in the application of the same laws alike and without discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances. It implies that among equals, the law should be equal and equally administered and the like should be treated alike without any discrimination.
28. In Western M.P. Electric Power and Supply Company Ltd. vs. State of Up and another, the Court while interpreting Article 14 has mentioned that Article 14 of the Constitution ensures equality among equals: which is to protect persons similarly placed against discriminatory treatment.
29. In the celebrated case of Smt. Maneka Gandhi vs. Union of India and another, 1978 AIR 597, Article 14 has been interpreted in the following manner.
"NOW, the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic. approach.' No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterated here what was pointed out by the majority in E.P. Royappa v. State of Tamil .Nadu that "from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore, violative of Article 14". Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied."
31. In another celebrated case, Ramana Dayaram Shetty v. The International Airport Authority of India and others, 1979 AIR 1628, , the Court interpreted Article 14 in the following manner:
"ARTICLE 14 strike at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be rational and relevant principle which is non- discriminatory; it must not be guided by any extraneous or irrelevant consideration because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically art essential element of equality or non- arbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and nondiscriminatory.
32. Now applying the underlying principle of the above authoritative law of the land to the facts of the present case, it is the categorical case of the applicant that the state is adopting pick and choose method in implementing the judgment of M.C. Joshi & Ors (Supra). Averment to this effect has been made in Para 4.26 of the original application that in case of Shri Baleshwar Singh I.F.S the respondents by appling the ratio of M.C. Joshi & Ors (Supra) has extended the benefit, where as in his case the respondents has denied to grant similar benefit. In reply to this Para respondents in Para 22 of the counter affidavit has stated that the case of Shri Baleshwar Singh has no bearing. The averment made in Para 4.26 of original application and reply thereof in Para 22 of the counter affidavit reads as under.
4.26. That the stand taken by the government of Uttarakhand vide letter dated 23.12.2011 in respect of the respondent No. 4 is contrary to the stand taken by it in respect of two other officers namely Smt. Maya Devi, Accountant, who was repatriated in compliance of the judgment dated 26.07.2010 vide order dated 10.02.2011. The State of Uttarakhand vide order dated 05.04.2011 has taken a decision in respect of one Shri Baleshwar Singh, IFS , who was also not a party that writ petition no. 79 (S/B) of 2008 in which the judgment dated 26.07.2010 was rendered and it was directed that he was liable to be repatriated in light of the fact that the entire policy had been quashed.. 22. .in reply to contents of para 4.26 of the Original Application, it is stated that the case of Maya Devi and Baleshwar Singh has no bearing to the facts of the present case in as much as the said decision may have been taken by the respective department/authority in isolation and the same cannot be considered as the view of answering respondent i.e. the State Government.
However, it is clarified that there exists a separate department namely Reorganisation Department in the State which deals with the matters pertaining to cadre division/allocation/interstate transfers and the said mutual transfer policy was also framed and issued by the same department. Hence, the issue whether judgment and order dated 26.07.2010 should be applied in all cases running into hundreds in number, across the departments, was got carefully examined by re-organization department and after consultation with the law department in the State it reached to the conclusion that the said judgment and order is prospective in nature and it cannot be applied retrospectively in the all cases. This conclusion has been approved by the Honble Chief Minister on the file of reorganization department and since then no new case of mutual transfer has been allowed Expected to be a model State the respondents State is to apply the ratio of the judgment in uniformity. They cannot be expected to adopt pick and choose method by applying the ratio of the judgment in one case and denying in others. Thus, it can safely be held that in the instant case the action of the respondent state is in violation of article 14 of the constitution of India and thus cannot sustain.
33. With regard to directions to the State Government to apply the judgment, we are convinced that once the Honble High Court has set aside the communication issued by the Central Government dated 15.09.2004 and 08.06.2006 and subsequent letters of the State Government , therefore, by applying the above ratio the respondents are duty bound to apply the above ratio in the present case also and accordingly withdraw the name of respondent No. 4 from the panel of P.C.S (Executive), which was forwarded to the U.P.S.C for induction into I.A.S.
34. Therefore, we hold that the action of the respondent no. 1 in recommending the name of respondent no. 4 to UPSC for consideration for induction to IAS from state cadre officer is illegal and against the ratio of judgment in case of M.C. Joshi & Ors (Supra). Consequentially it is directed to withdraw name of respondent no. 4 from the panel of eligible officers to be considered for I.A.S against the notified vacancies.
(SHASHI PRAKASH) (SANJEEV KAUSHIK)
MEMBER- A MEMBER- J
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O.A No. 330 of 2012