Central Administrative Tribunal - Ernakulam
B Asokan vs M/O Home Affairs on 26 September, 2017
Author: P.Gopinath
Bench: P.Gopinath
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.776/2013
Tuesday, this the 26th day of September, 2017
CORAM:
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
B.Asokan,
S/o.A.Bhaskaran,
Superintendent of Police (Non-IPS),
Crime Branch, CID, Organised Crime Wing,
Kannur - 670 001.
Residing at Kunnil House,
Asram South, Kollam - 2. ...Applicant
(By Advocate Mr.R.Sreeraj)
Versus
1. The State of Kerala, represented by Chief Secretary,
Government Secretariat, Trivandrum - 695 001.
2. The Union of India, represented by its Secretary,
Ministry of Home Affairs, New Delhi - 110 012.
3. The Union Public Service Commission
represented by its Secretary,
Shajahan Road, New Delhi - 110 001.
4. Shri.K.A.Muhammed Faizel,
S/o.Ammu Sahib,
Superintendent of Police,
Vigilance and Anti Corruption Bureau,
Central Region, Ernakulam, Kochi.
Residing at No.B-2, Express Garden,
Kaloor, Kochi - 682 017. ...Respondents
(By Advocates Mr.M.Rajeev,GP [R1], Mr.N.Anilkumar,Sr.PCGC [R]
[R2], Mr.Thomas Mathew Nellimoottil, Sr.PCGC [R3]
& Mr.T.B.Hood [R4])
This application having been heard on 4th August 2017, the Tribunal
on 26th September 2017 delivered the following :
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ORDER
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER The applicant was an officer in the Kerala Police Service. He was included provisionally in the Select List for the year 2011 for appointment by promotion to Indian Police Service (IPS). The State Government had withheld his integrity certificate on account of an oral inquiry initiated against him on the allegation that he had written adverse remarks in the ACR of a Sub Inspector who had worked under him. As the State Government was withholding the integrity certificate the Select Committee (for short, Committee) constituted by the Union Public Service Commission (for short, Commission) included him in the Select List provisionally. The applicant states that the decision of the State Government to withhold integrity certificate was not in accordance with the guidelines framed by the Government of India. He had sent a representation to the State Government for releasing his integrity certificate but the same was rejected. The applicant states that unless the integrity certificate in respect of him is issued by the State Government unconditionally and the same is send to the Select Committee within the time prescribed, his chances of getting appointment to the IPS for the vacancy year of 2011 will be lost. Hence he has approached this Tribunal seeking relief as under :
'(i) To direct the 1st respondent to consider the case of the applicant for issuance of the integrity certificate and to issue the same and further consider the case of the applicant and decide whether he is to be included unconditionally in the Select List and to make the proposal regarding the same during the effectiveness of the Select List approved by the 3 rd respondent.
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(ii) Alternatively, declare that the 1st proviso to Regulation 7(4) of the IPS (Appointment by Promotion) Regulation, 1955 is unconstitutional to the extend it does not provide for making unconditional the inclusion of the names of officers in case of whom the proposal is send by the State Government after the date of effect of the Select List and direct the respondents not to implement the said provision against the applicant and to direct the respondents to treat the inclusion of the name of the applicant in the Select List for appointment by promotion to the Indian Police Service as unconditional irrespective of the date on which the proposal under the proviso is send by the State Government and give him consequential benefits treating that the proposal was send in time.
(ii)(a) To quash Annexure A-6.
(iii) Such other relief as may be prayed for and this Tribunal may deem fit to grant.
(iv) Grant the cost of this Original Application.'
2. Respondent No.2, Union of India, filed written statement stating that appointment from State Police Service to IPS is governed by the Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as Regulations) which envisage distinct roles for the State Government, the Commission and the Central Government, with specific mandates in the process of preparation of the Select List of State Police Service Officers for promotion to the IPS, right from the stage of drawing the list of eligible officers by the State Government to finally making appointments to the service from the Select List by the Central Government. The State Government has the exclusive role in drawing of the consideration zone of the eligible State Police Service Officers to be placed before the Committee constituted by the Commission. The Commission is concerned with the Select List prepared and approved by the Committee. With the aid of the observations of State and Central Governments the Commission gives final approval to the Select .4.
List. The responsibility for making appointments from the Select List, on the recommendations of the State Government in the order in which the names of the candidates appear in the Select List during its validity period, is for the Central Government. The Select List remains in force till 31st day of December of the year in which the meeting of the Committee was held or up to 60 days from the date of approval of the list by the Commission, whichever is later. The Central Government will not be in a position to appoint him to the IPS if the integrity certificate of the applicant has been granted after the expiry of the validity period of the Select List.
3. In the reply statement filed by the Respondent No.1 State Government it is contended that in terms of the interim order passed by this Tribunal directing the State Government to consider Annexure A-3 representation keeping in view Annexure A-5 order dated 3rd April 2013 which refers to the guidelines dated 26.5.1970, the respondent State Government had considered the representation and rejected the same by Annexure R-1 (a) [Annexure A-6] Government Order.
4. In the light of Annexure A-6/Annexure R-1 (a) order the applicant amended the O.A challenging the aforesaid Government Order also. Later he has impleaded Respondent No.4 as party respondent in the amended O.A. .5.
5. In the additional reply statement filed by the State Government to the amended O.A it is contended that the applicant's career in the Police Department was not at all unblemished. He was awarded a punishment of withholding of one increment without cumulative effect on charges of having made derogatory and uncharacteristic remarks against the Inquiry Officer; though the aforesaid punishment was withdrawn by the Government later by way of benevolence. He was involved in a case of ill- treatment of woman whose husband was away from home for which the Government decided to remove him from service but again on a benign consideration of he being a member of Scheduled Caste altered the decision but reduced his rank to that of Circle Inspector of Police for a period of three years. On appeal, the Government further showed leniency and exonerated him of the charges giving benefit of doubt. In yet another incident he had committed grave misconduct involving moral turpitude and fraud towards a woman. However as the woman withdrew the complaint the applicant managed to escape the punishment. In another occasion he was found guilty of serious misconduct towards a high official of Mangalore City Corporation which has brought disrespect to the total police force in the State. Again, the Government took a lenient view and he was awarded a punishment of barring of two annual increments without cumulative effect. The State Government further states that on the date when the Committee met for preparing the Select List for IPS for the year 2011, no charge sheet was issued to him in respect of the aforementioned disciplinary misconduct relating to the ACR of a subordinate officer, written .6.
by the applicant. The oral inquiry ordered on 6.9.2012 was based on a prima facie commission of offence by the applicant. The oral inquiry was ordered only to afford him an opportunity of argument. He was exonerated of the charges levelled against him because of the leniency shown by the Government considering that he is a member of the Scheduled Caste. The integrity certificate was withheld on account of the charges and evidences available in the aforesaid disciplinary proceeding. The State Government prays for rejecting the O.A.
6. We have heard Smt.Tanuja representing Shri.N.Anilkumar, Sr.PCGC (R) for Respondent No.1, Shri.M.Rajeev, State Government Pleader for Respondent No.2, Shri.Thomas Mathew Nellimoottil, Sr.PCGC for Respondent No.3 and Shri.Amal Kasha representing Shri.T.B.Hood for additional Respondent No.4. Perused the record.
7. Referring to the conduct of the State Government in withholding the integrity certificate Shri.R.Sreeraj, learned counsel for the applicant submitted that the same is arbitrary, unjust, unreasonable and illegal. According to him, the respondent State Government did not consider the yardsticks mentioned in the administrative instructions issued by the Ministry of Home Affairs, Government of India in the matter of furnishing integrity certificate for the State Officers considered for promotion to All India Services. Instructions in the aforesaid communication relied on by the applicant read as follows :
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"No.17/3/70-AIS(III) Government of India, Ministry of Home Affairs.
New Delhi - 1, 26th May, 1970.
To The Chief Secretaries of All State Governments.
Sub : IAS/IPS - Integrity certificates in respect of officers who are considered for promotion to the ..........
Sir, I am directed to refer to this Ministry's letter No.14/23/65- AIS(III), dated the 28th July, 1966 according to which the State Government are required to furnish an integrity certificate in respect of each officer whose suitability for promotion to the IAS/IPS is considered by the Selection Committee. The integrity certificates are normally furnished at the time of the selection committee meeting. I am to request that, in future, a list of the officers in respect of whom the integrity is certified by the State Government and a list of those in respect of whom the integrity certificate is withheld may be sent to the Government of India/Union Public Service Commission in advance of the Selection Committee meeting.
As regards the officers against whom inquiries are pending, the integrity certificate should not ipso facto be withheld. The State Government should examine each case with reference to the nature/gravity of the charges, the evidence available on the basis of the investigation made upto that time, the known arguments of defence, if any, the views of the Head of Department, the general reputation of the officer etc. and then decide whether they would like to include him in the list of officers whose integrity is certified or in the list of those in respect of whom the integrity certificate is withheld.
Yours faithfully, Sd/-
B.Narasimmhan, Under Secretary to the Govt. of India"
(Italics supplied)
8. Shri.R.Sreeraj, learned counsel for the applicant, submitted that the above administrative instruction was taken note of by this Tribunal in the Annexure A-5 final order dated 3.4.2013 in O.A.No.24/2013. In that decision this Tribunal said :
"7. As per the Regulation 5.5 of the IPS (Appointment by Promotion) Regulation, 1955, "the name of any officer so included in the list shall be treated as provisional if the State Government withholds the integrity certificate in respect of such officer or any departmental/criminal proceedings are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to .8.
the notice of the State Government". Explanation 1 to the above rule states that "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". Even when integrity certificate is withheld, the UPSC includes an officer in the Select List though, provisionally; that is to say consideration is not denied by the UPSC. If a charge sheet is filed in a Court, the case can be treated as pending. Pendency of a case in a Court by itself may not ipso facto deny him the right to be issued the integrity certificate unless a conscious decision is taken by the 3 rd respondent to do so on considering all relevant aspects of the case as per Annexure A-7. Hence the O.A is allowed as under.
8. The Respondent No.3 is directed to consider the case of the applicant for grant of integrity certificate as per the guidelines of the Department of Personnel and Training, Government of India and to communicate his decision to the applicant by a speaking order within a period of 30 days from the date of receipt of a copy of this order. No costs."
(Italics supplied) (Although the order refers to the guidelines of the DoPT, Government of India, what has been reproduced in the order is the afore-quoted administrative instructions of Ministry of Home Affairs dated 26.5.1970).
9. Shri.Thomas Mathew Nellimoottil, learned Sr.PCGC submitted that 1955 Regulations prescribe validity period for the Select List prepared by the Committee and finally approved by the Commission. The first proviso to Regulations 5.5 of the 1955 Regulation mandates to treat the State Police Officers included in the list as provisional if the State Government withholds integrity certificate. The aforesaid proviso reads as follows :
"5(5) xxxxxxxxx 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.
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xxxxxxxxx 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 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."
10. Regulation 7 (3) deals with Select List finally approved by the Commission and its validity. It reads :
" xxxxxxxxxxxxxx 7(3) The list as finally approved by the Commission shall form the Select List of the members of the State Police 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 31 st 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 upto sixty 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 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:
xxxxxxxxxxx"
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11. The appointment of a member of State Police Service to IPS is made by the Central Government as per Regulation 9. With regard to the appointment of an officer whose name has been included in the Select List provisionally is dealt with by second proviso to Regulation 9 which reads :
"9. xxxxxxxx Provided further that the appointment of an officer, whose name has been included or deemed to be included in the Select List provisionally under the 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 :
xxxxxxxx"
12. A conjoint reading of the above extracted Regulations clearly shows that the Select List has a prescribed period of validity and that the integrity certificate in respect of the official included in the Select List as provisional has to be furnished by the State Government as "unconditional" within the time limit and within the validity period of that list as mentioned in the Regulation. Shri.Thomas Mathew Nellimoottil, Sr.PCGC brought to our attention a decision of the Hon'ble High Court of Kerala in W.P(C) No.20313/2009 dated 20.7.2009. In that case the Hon'ble High Court held :
4. ............The point which remains to be considered is whether on acquittal, the petitioner can claim integrity certificate with retrospective effect for the year 1994-95 or for subsequent years. The relevant rules do not provide for such a procedure. The integrity certificate has to be issued during the relevant year when he is included in the list. If the same is not issued at the relevant time, there is no provision for extension of time......."
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13. In the light of the above decision of the Hon'ble High Court, we feel that even if the applicant is exonerated in the disciplinary proceedings, the integrity certificate furnished as "unconditional" by the State Government will have no effect in respect of the Select List for the year 2011 prepared in August, 2013.
14. Shri.R.Sreeraj, learned counsel for the applicant, submitted that Annexure A-6 decision taken by the State Government not acceding to his representation for releasing of the integrity certificate and for forwarding the same to the UPSC was issued without adverting to the yardsticks of the afore-quoted administrative instructions contained in the letter dated 26.5.1970 issued by the Ministry of Home Affairs, Government of India (supra). According to him, Annexure A-4 memo of charges based on which disciplinary proceedings were initiated against him on the eve of his selection to IPS for the year 2011 was issued for trivial reasons for which integrity certificate should not have been withheld by the State Government.
15. Shri. Sreeraj submitted that the dictionary meaning including the meaning given in the Black's Law Dictionary for the term 'integrity' is synonymous with 'probity', 'honesty', and 'uprightness'. He further argued that going by the literal meaning of integrity there is nothing against the applicant to suggest even remotely that he has no integrity and there is no reason for the State Government to withhold the same. According to him, the allegations in Annexure A-6 that his career in the Department was not at .12.
all unblemished are incorrect. He argued that the respondents have gone into irrelevant considerations for deciding the feasibility or otherwise of releasing the withheld integrity certificate as the issues relied on by the respondents are no longer alive.
16. We note that in the additional reply statement filed by the State Government a good number of instances reflecting blemishes on the career of the applicant while he was in the State Police Department have been mentioned. However, at the same time, it is stated in the additional reply statement that the State Government has exonerated him from those transgressions by way of benevolence on account of the fact that he is a member of the Scheduled Caste. We are astonished as to how a State Government could be so generous to the applicant who has been alleged with very serious misdemeanours which are totally uncalled for from a Police Officer. We wonder how such instances were not reflected in his Annual Confidential Records (ACR) sent to the Select Committee. If the instances mentioned in the additional reply statement filed by the State government are true, the applicant is obviously not a fit person to be granted with integrity certificate. We feel that his superior officers who wrote the ACRs for the relevant period when such alleged incidents had occurred should be proceeded agaist departmentally, if the State government has the requisite will and resolve. Nevertheless, the State Government has decided to withhold the integrity certificate of the applicant on account of Annexure A-4 disciplinary proceedings.
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17. As the State Government has decided not to release integrity certificate of the applicant and as the validity period of the Select List has expired, in the light of the afore-cited decision of the Hon'ble High Court of Kerala, there is no scope for issuing any direction to the State Government to forward the integrity certificate of the applicant.
18. In the light of the above discussion, we hold that the applicant is not entitled to any relief sought for in this O.A. The O.A is dismissed. Parties shall suffer their own costs. Registry is directed to send a copy of this Order to Respondent No.1 for a careful consideration of the remarks made in paragraph 17 of this order and for appropriate action.
(Dated this the 26th day of September 2017)
(P.GOPINATH) (U.SARATHCHANDRAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.776/2013
1. Annexure A-1 - True copy of the G.O.(Rt) No.2649/2012/Home dated 6.9.2012.
2. Annexure A-2 - True copy of the G.O.(Rt) No.3371/2012/Home dated 16.11.2012.
3. Annexure A-3 - True copy of the representation dated 16.1.2013 submitted by the applicant.
4. Annexure A-4 - True copy of the Memo of Charges dated 16.3.2013 issued to the applicant.
5. Annexure A-5 - True copy of the final order dated 3.4.2013 in O.A.No.24/2013 on the file of this Hon'ble Tribunal.
6. Annexure A-6 - True copy of the G.O.(Rt) No.2418/2013/Home dated 31.8.2013 issued by the 1st respondent.
7. Annexure A-6 - True copy of the G.O.(Rt) No.2418/2013/Home dated 31.8.2013.
8. Annexure R-1(a) - Copy of G.O.(Rt) No.2418/2013/Home dated 31.8.2013.
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