Central Administrative Tribunal - Mumbai
Arvind Harishchandra Chawria vs M/O Home Affairs on 19 February, 2024
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Central Administrative Tribunal,
Mounmbsi Bench,
Minmbai.
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Dated this Moody the ig. day of February, 2024.
Coram: Ms.Parvinder Kaur Oberoi, Member (Judicial)
MrShri Krishna, Wember (Administrative).
Shy} Arvind Narishchandra Chawna,
Presently working as : Deputy Commissioner ae Police,
Head Quarters ~ {], Pune City, having his office
Police Head Ouarters, Shivalinagar, Pune and
presently residing at: Police Officer's Quarters,
Opposite Rahul Cinema, Shivajinagar,
sm £)] O08, . Applicant
y Advacate Shri SR. Atre }
rem
JOrsus
i, Union of India, through
'The Secretary to the Govt, OF India,
Ministey of Home Affairs, North Block,
New Delhi- 110 070,
=. The " C hrady Bes SRT
Uni on y Public Service Commission,
pre our House, Shahajan Road,
oie nei 110 069,
a. The State of Maharashtra,
Through the Additional Chief Secretary (Home),
Mantralaya, Mumbai ~ 400 032.
4. The Director General of Police,
Maharashtra State, Maharashtra State
Police Headquarters, Shahid Bhagat Singh Road,
Colaba, Mumbai ~ 400 001.
tn
.
Shri §.T. Rathod,
Deputy Commissioner of Folios,
> OA BZOL/2016
Principal-2, Police Training School,
Marol, Mumbai ~ 400 058. .. Respondents.
( By Advocates Shri V.B. Joshi and Dr.V.8. Masurkar ).
Order reserved on : 13.02.2024
Order pronounced on 1 \* 02,2024,
ORDER
Per: Shri Krishna, Member (A)
The applicant has Aled this OA. with prayer te quash order dated 11.09.2015, issued by the Union Public Service Commission (for short UPSC) and te seek directions to the respondents to call for a review Selection Committee Meeting held on 24.07.2014, to consider the name of the applicant for appointment by promotion to the Indian Police Service (for short IPS) In the select list of 20613 wrth all consequential benefits and place him above private Respondent No.$ who was junior to him and prayed for following reliefs:
"A. This Hon'ble Tribunal be pleased to eall for the record and proceedings of the present case and in view of the fact that the service record of the Applicant has undergone a material change, direct the Respondents to call for a Review of the Selection Committee Meeting held on 24° of July 2014 and consider the name of the Applicant for appointment by promotion to the Indian Police Service in the Select List of 2015 and accordingly appoint the Applicant by promotion to the Indian Police Service in the Select List of 2013 and accordingly appoint the Applicant by promotion to the Indian Police Service in the Select List of 2013 and place him above the Respondent No.S$ herein with all the consequential reliefs including arrears of pay, seniority ete.
B. This Hon'ble Tdbunal be pleased to direct the Respondents to hold a Review of the Selection Committee tek ~, Meeting held on 24° of July 2014 and accordingly review the Select List of 2013 'and afier doing so, appoint He Applicant by promotion to she Indian Police Service wad place him above the Respondent No.d alongwith all the a8 consequential reliefs like semorty, Arrears of pay ete. i, Bass ¢ Pek = "
Pyihuunal des ~ ofthe present cass.
Bs Hrlef facts of the case are that the applicant is & direct reerust Dy. Superintendent of Police for 1996 batch in Maharashtre.
2. As ger the Notification of Government decision no.SPS-1292/M neds (Part-2y Two (Pol-), dated 19.10.1996, 13 officers were appeinted as Dys.P/A. CUP on the basis of seommumendation of Mahar ashtra Public Service Commission on the basis af competitive examinanon held in 1904, In the said list, the name of the applicant appears st Sr.No 2 and oe that private respondent nod Appears at SeNo.i3 Le. below the applicant.
The applicant successfilly con npleted the basic training of one year at "y wlaharashira Police Academy, Nasik in (997 and eleared all outdoor, indoor and departmental examin ation in first attempt ans) stood 2° in his batch. After successfully commleting bis probation period (district attachment) he was posted as Dy.S PACE In OLGR. 1998.
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3. In due course of time he was promoted as Superintendent of aye Police/Dy. Commissioner of Police in 2006 and since then he has been working on that post. As per Government Order No.SPS-
Beal 1/2002 E.No. 32/POL-TA, Home Deparment, Mantralaya, Murbat AAA SSS SESE 4 OAC 13, he had completed prohation period satishict and became due for inclusion in eo 2 completion of probation period of 27 months, agplicant was absorbed in the Dv S .PYACP cadre and as per rules afler completion of 3 years service he was supposed to be confirmed In the same cadre but he was not confirmed in spite of fulfilling all the necessary criteria'conditions til January, 2015. Even though he was promoted to the post of Supa.
OF Police/Dy. Commissioner of Police post in the vear 2006 without being confirmed on the lower sost Le. DyS.P / ACP It is submitted that because of his non-confirmation in Dy.S.P. / A.CLP cadre, that his 3 names was not included im the list of consideration fer nomination / promotion inte [PS and, therefore, he gat superceded. He submitted the it Was purely an act of negligence/red-tapism at the hands of responsible officers in the State Government. [tis submitted that as per order dated 2LGL2O1S, which was received after 18 vears his date of confirmation "
that his junior private respondent no.5 got promoted / inducted Into IBS.
ost * Itus submitted that the DOP Office of Maharashtra, Mumba vide their letter dated 20.12.2014 (Annexure A-/) addressed to Additional Chief Secretary, Government of Mahar ashira, i has beer submitted to the State Government thet for the purposes o1 P appointyen . 5 a * Los eo us AEA PLES VEY ¥ ' Bhs & » TRA ¥ wasn ery Thyae arb st Peek oy te LOb bes 4 yropmotian to tis iP. For J ests in Ete SSHRC LT LESh OY kris: BN = ae ES Ge oy a ce wie thes GS Fae Claverspeent is of 33 State b Police Serv ice oes apa was submitted to Wie CyOVEMe. mM SER Pal the said Uist of 23 officers the name of the applica a (Shei Arvind H. Chawriay Dy Commissioner ef Pollee, Zone-Z, Aurangabad was 3 mneluded at snno.id. However, as per Central Government Natification dated 18.10.2014, 6 State Police Service Officers have been nominaicd ta the IPS. In the said list the name of the apy solicant is not included. The applicant has preferred a represents ation dated 27.11.2014. Thereafter, the applicant made represe vation to the Chairman, UPSC, Chief Secretary, Government of Mahar ashtra, Addl. Chief Secretary (Home), Government of Maharashtra ead Directar General of Police vide his letter dated 22.06.2015 (Annexure A-8) sh ating that when be pursued with the D.G. Office ( Home Department he came to know that D.C, OSes has recommended his name in the seleet Hst of 2G13 at srno. is, He farther submits that his service re ecord throughout Als. career is outstanding. All his ACRs are AWA, He was awarded Director General's Insignia (Medal) for meritorious service in 2015, which is sufficient to prove that dhere was nothing adverse against him as this medal is awarded tp officers for maimaining meriiorious service record & CIA BOE2OLS * oh Fon ~ tur the last TA consecutive years or more. a cong . wm tee S house dheiaes: 2teee why odersetraterrPad of "
t. He submitted that there was no departmental procee } ' a Se Sy pM Raw 2 a3 d ia a ret Loapb saaryas ordered or pending ansinst him, nor he has even heen four SUEbY ACAN) respondents ta nominate him into iPS and | respondent no.3 in the select list of 2013.
oN 7, Te has heen submitted that under Th {Appointment by Promotion} Regulations, Se proviso to Regulation 5(2) of the Regulations, a State Police Service ae Officer, substantive in the State Police Service who has campleted not So:
less than & years of cantinucus serviee, whether officiating or substantive, in the post of Deputy Superiniende being considered for appointment by promotion to the IPS. Nis further us bmited under Reeulation 7 of the IPS (Appointment by Promotion) Regulations, 1955, the select list then prepared remains in force tH) 31° December of the vear in which the meeting of the Selection Committee is held. However, whenever there is a change in the service record of an incumbent for beme carsidered for induction in the IPS, a revigw Selection Canmmittze is required ti be held and an incumbent cannot be deprived af his rightful claim of being considered for appointment by promotion to the IPS any such delay in the change in service record is rot attributable to the official concerned. it has been submitted that a -- QA.301/2016 private respondent no.§ was all along junior to the applicant and thus he sould not have been appointed by promotion to the IPS by superceding the applicant.
8. It has been submitted that the applicant preferred a representation dated 22.06.2015 in which he brought to the notice of the respondents that the injustice meted to the applicant deserves to be ¢ rectified and the applicant deserves to be appointed by promotian to the IPS in the select list of 2013 and applicant's seniority deserves to be fixed above the private respondent no.3 who was all along junior to him.
The applicant preferred another representation dated 10.07.2019, in which the applicant again requested the respondents to induct the applicant by promotion to the IPS in the select list of 2015 and fix the seniority of the applicant above the private respondent no.3. He further submitted that respondent no4 vide their letter dated 23.07.2015 pointed out that the name of the applicant had been placed at stno.14 in the. eligibility list of 23 State Police Services Officers for consideration in the | select Hist of 20143 and the respondent No.4 also recommended that the applicant deserves id be Included in the select list of 2013 (Ammexure A- 10}.
a. it is submitted that the applicant's representation came to be rejected by the respondent No.2 Le. UPSC vide their impugned communication dated [17.09.2015 wherein it has been stated that as the Note 8 OASOL2016 select Hist of 2013 was considered in the meativig dated 24.07.2014 and Was approved by the UPSC on 08.10.2014 and acted upon vide notification dated 19.10.2014 and as there is no provision in the IPS (Appointment by Promotion) Regulations, 1955 to review the select list, the request of the applicant cannot be considered. The applicant submits that the respondent No.4 have included his name in the select [st of 2014 and the applicant has been appointed by promotion to the IPS vide notification dated 05.01.2016 issued by respondent No.) ie. Ministry of Home Affairs, Government of India, It is further submitted that non- consideration of the applicant by the respondents for inclusion of his name in the select list of 2013 for appointment by promotion to the IPS and not placing his name above the respondent nod is legal and bad.in law in so much so that service record of an incumbent officer undergoes a change without there being any fault of the officer, the selection procecdings deserves to be reviewed and an incumbent cannot be deprived of his rightful claim and, therefore, the O.A. deserves to be allowed,
10. On notice the respondent na.] has filed their reply stating that the recruliment against promotion quota is a lengthy process wherein three stake holders viz. State Government, UPSC and the Central Government have their roles to complete the process. Tp has been submitted that the Central Government had determined 7 vacancies
-- OAB012016 for the select Hist of 2013. The Selection Comunittee Meeting was convened by the UPSC on 24.07.2014. As per the provisions of Regulation 5(2) of the Promotion Regulations, the zone of consideration waa determined as 21. The Selection Committee selected 7 officers for inclusion in the select Hst of 2013 for promotion to the IPS Cadre of Maharashtra. The State Government had not included the name of the applicant in the eligibility list for preparation of the select list of 2013, indicating in the proposal that he was not yet confirmed in the State Police Service. The applicant was confirmed in the State Police Service with effect from 09.12.1999 vide Government of Maharashtra Order dated 21.01.2015 after the issue of notification on 15.10.2014 by respondent nol. The private respor yndent nod was considered a StNo.14 in the zone of consideration for the select Hist of 2013 and based on his overall service record, he was assesse ed as "Very Good' by the Selection Committee and was placed at Sr No.6 in the notification dated 19.10.2014, i. It has been submitted that as per the seniority of State Police Service Officers pro dvided by the Government of Maharashira, the name of the applicant was not included in the zone of consideration for the select list of 2013, indicating in the proposal that he was not yet confirmed in the State Police Service. Lt was further submitted that the IPS (Appointment by Promotion) Regulations, 1955 do not provide for 1G THA SOT/2016 review of a select fist which has already been approved by the Commission and acted woon by the Government of findia. Therefore, the contention of the applicant is not in consonance with the existing provisions of the statutory promotion Regulations.
12. In the reply filed by Respondents No.3 and 4, it has been stated that the applicant came to be regularly appointed as a direct recruit in the rank of Dy. Superintendent of Police on 19.10.1996 and later on inducted into IPS on 05.01.2016. {t has been submitted that a proposal was received from the Director General of Police, Maharashtra State, Mumbai vide letter dated 10.08.2011 for confirmation of the applicant in the State Police Service. It is submitted that as per the guidelines of the State Government regarding confirmation of service following conditions are laid down as eligibility for confirmation of employees in State Ser PVices-
"1. Appointment of the employee should be in accordance with recruitment mies and through proper channel.
2. Employees must submit certificate regarding he is medically ft for the service and should have cleared Post Reerultment Trai ning Examination.
3 His Service Record should be good. (g.
CR, Attendance, Conduct ete)"
13. It has been submitted that the select list of 2013 for promotion to IPS was held on 24.07.2014. The name of the applicant was not included in the eligibility Het as he was not confirmed in State qe CA.3OL/2016 Service as on O1.01.2013. However, as the officers junior to the applicant were confirmed tn the State Service their names were included in the eligibility list. It has been submitted that a departmental inquiry initiated against the applicant on 06.07.2007 which was closed on 09.04.2012, id. The UPSC, Respondent No.2 in their re eply have stated that by virtue of the provisions of the All india Services Act, 1951, separate Recruiiment Rules have beer famed for the IASHPS/FoS. in pursuunce of these Rules, the Indian Police Service (Appointment by Promotion} Regulations, 1955 have been framed, In accordance with the provisions of the said Regulations, the Selection Commities, presided aver by the € sirman/Member of the UPSC, makes selection of State Police Service based on the proposal and records sent by the State Government concerned.
iS. ft has been further submitted that the Selection Committes Meeting to prepare the se elect list of 2013 for promotion 16 IPS of Maharashtra cadre against 7 vacancies was held on 24.07 2014 on the basis of proposal submitted by. the State Government. In the said proposal, the name of the applicant was not included in the eligibility list by the State Government as he was not confirmed in the service a8 of 1.012013. The names of the officers junior to him were included in the eligibility list In accordance with the Prarmotion Regulations. Out af 12 OA SOL2016 officers junior to him, the name of private respondent no.5 was included at SrNo.7 in the select list, which was approved by the UPSC on 08.10.2014 and acted upon by the Government of India, MHA vide their Notification dated 1S.10.2014.
15.1. Tt has been submitted that the Government of India, \ INA, vide their letters dated 10.07.2015 and 22.07.2015 forvarded the representations dated 22.06.2019 and 10.07.2015 respects ely to the UPSC. wherein the applicant requested to consider his name for the select list of 2013 for promotion to the IPS of Maharashtra Cadre by way of convening Review Selection Committee Meeting as he got confirmed in State Police Service with effect from 03.12.1999, vide State Government Order dated 21.01.2015. Further, as there is no enabling revision in the IPS (Appointment by Promotion) Regulations, 1955 for reviewing a Select List which has already besn approved by the Commission and acted upon by the Government of India, it was decided by the IPSC that no action was required to be taken on the part of the UIPSC on the request made in the representations. The said decision of the UPSC was conimunicaied vide letter dated 11.09.2015 addressed to the Government of India, MHA and endorsed to the applicant.
16. The counsel for the applicant in his rejoinder to the reply filed by the respondents has stated that the applicant completed the probation period of two years as on 19.10.1999 and should have been oe peoe! Lipa CHA BOURO16 confirmed in the State Police Service especially in view of the facts that his appointment was in accordance with the Recruitment Rules and through proper channel, as he was directly recruited as a Dy, Superintendent of Police. He had already been medically examined and had also cleared post-recruitment training examination and further his service record was also outstanding and as at no Stage, he had been in any manner, adversely reported Upon, but in fact had been duly conferred the Police Service Medal for menitorious service throughout the service since inception. He was further promoted to the post of Superintendent of Police in 2006,
17. it ig submitted that even if a departmental enquiry was said to be pending against him since 06.07.2007 as per the statement of respondents themselves, the same had been closed vide order dated 69.04.2012 and in that case the departmental authorities should have confirmed him in State Service with effect from 03.12.1999 as had been done in the case of his juniors in the State Police Service. [tis submitted shat as soon as the departmental enquiry had been closed with effect fom 09.04.2012, hé could have been confirmed in Siate Police Service with effect from 03.12.1999 and while forwarding his name in the select list for promotion by appointment to the TPS, a mention could have been made of his name for due confirmation, It is also submitted that it was only because of lethargy on the part of respondents no.3 and 4 and id OA B20 further with some malafide intention, the confirmation was delayed inordinately for nearly 12 years and delay in confirming in State Government Service by the Government camnot in any manner deprive him of his rightful claim for being anpointed by promotion to the LS in the select list of 2013 and ahead of respondent no. with all consequential benefits including arrears of pay, seniority etc in the IPS, is. In rejoinder to reply of respondent no.2 Le, UPSC, the counsel for the applicant has submitted that once the service record of a State Police Officer undergoes a change, a Review Committee is necessarily to be convened and is required to be considered by the Review Selection Committee for appointment by promotion to the IPS, a fact which is no more res-integra as it is covered by number of judgments of this Tribunal as well as the Apex Court. It has been uncertainty' as observed by the Apex Court on a number of occasions and further having duly completed his probation within stipulated period and further being prornoted to the post of Superintendent of Police in 2006, the applicant was deemed to have been confirmed and any subsequent delay on the part of the Government of Maharashtra cannot be said to deprive the applicant of his rightful claims. It has been submitted that the delay on the part of the respondents No.3 and 4 in not confirming the applicant and especially when the delay cannot be in any rR eeg ee:
Pd eo Raft OA AOU EGS manner attributable to the applicant, the respondents deserve to hold a Review Selection Committee Mecting and accordingly appoint the applicant to the IPS with effect from the date when his junior Le. Respondent No.5 came to be appointed along with all consequential benefits.
18, During the course of final arguments, Mr. Atre, counsel for the applicant has submitted a copy of this Tribunal's order in the case of MLM. Rathod Vs. Union af ladia and Others decided on 12.12.2005, reported in 20071) SLI 212 CAT and argued that the matter is squarely covered by this decision as held in Para 47 & Tas under: -
"4 Separate replies have been filed on behalf of Union of India {respondent No.1), ULB S.C, {respondent No.2) and State of Maharashtra (respondent No.3}. About RR, Sonkusare and Bu. Kangale, who were junior to the applicant in the same batch, it has been stated that they were considered for the select Hst prepared for the year 1987 as they were confinned in the State Police Service whereas the applicant was confirmed only later vide order dated 23.08.2000 wef 31.12.1983. For 8.8. Sawarkar and RON. Wagh it has been stated that they were duc for consideration to the IPS on 01.01.1987 and therefore different from the case of the applicant.
g waeee 7 Qn the second point which has been raised, namely, no provision for convening a review selection ineeting, we are afraid such a conterttion cannot mow be entertained because we have in OLA ZS 92, Rajendra A. Sonawane ¥, inion of India and Ors. decided on 04.08.1994 held that the applicant therein who was similarly placed, was entitled to reconsideration of his entitlement when. he should have been considered when his junior came to be aN 16 OASOL:
considered. In Amr Rant Chon ane State of Bihar and Ors. 1984 8C Cases (L&S) 173, 'the Supreme Court observed as follews:
"After giving our anxious consideration to the uncontroverted material placed before us we have reached the conclusion that the case of the applicant for promotion to the Indian Police Service Cadre has not been considered by the Committee in a just and fair way and his case has been disposed of contrary to the principles laid down in Gurdial Singh Fiji case. The decisions of the Selection Committees recorded at its meetings in which the case of the appellant was considered are vitiated by reason of reliance being placed on the adverse remarks which were later on expr unged. The High Court committed an error in dismissing the petition of the appellant and its order is, therefore, lable to be set aside. We accordingly set aside the order of the High Court. We hold that the appellant has made out a case for reconsideration of the question of his promotion to the Indian Police Service Cadre of the State of Bihar as on December 22, 1976 and if he is not selected & on that date for being considered again as on March 12, 1O81°
8. The learned counsel fer the applicant pointed out to us that Rule 4(5) of the Indian Police Service (Appointment by Promotion} Regulations, 1965 also provides that the list so prepared shall be reviewed and revised every year and this therefore would show thet the ground put forward by the respondent No.l for not reviewing or revising the select list is. not substantial.
9, In R.K. Singh v. State of UP and Ors. (2991) 17 ATC 341, it was observed that "once the adverse entries awarded to the appellant were expunged the applicant is entitled to Selection Grade with effect from January [, 1986, the date on which he was eligible for grant of Selection Grade." An identical situation arises in the present case as we see no merit a "3 OAIGUANTS in the objection raised by the respondent No.1, Union of India to reviewing the case of the applicant in the fight of the expunction of the adverse confidential remarks, We note that the respondent No.2, State of Maharashtra, in their reply has pointed out that since the applicant has became eligible for being considered for promotion to the IPS in the year 1978 in view of the changed circumstances in the State Service record, his representations were forwarded to the Government of India, Ministry of Home Affairs by letter dated 30.11.1991 with the recommendation that the applicant's case may again be placed before the Selection Committee with a view to assess whether he was fit to be included in the select list of SPS Officers for appointment to the IPS for the year 1978. But this recommendation was not accepted by the first respondent by the letter dated 22.04.1992. It is diffioult for us to accept the submission on behalf of respondent No.1 that the applicant is not entitled to relief, We see no merit in the plea of limitation which has been taised and the other points raised are covered by the decision of the Supreme Court to which he had adverted above.
16. In the result, we hold that (a) the apelicant is entitled to be considered for appointment by promotion to the Indian Police Service in the year 1978, (b) the respondents are directed to consider the case of the applicant for appointment by promotion to the Indian Police Service in the year 1978 and in subsequent years and order retrospective pramoetior with all consequential benefits including payment of difference in salary. We direct that these directions shall be implemented within four months from the date of receipt of a copy of this order. There shall be no order as to costs. MLP. is disposed of."
20. WMrAtre has further placed rellance on the decision of this Pabunal in CLA,.700/1992 in. the case of Shri AK. Banerjee ¥'s. Union of India & Ors. decided on 06.10.1994, wherein this Tribunal has held in para 7 to 10 as under:-
13 OASBZCUL016 i On the second point which has been raised, namely, no provision for convening a review selection meeting, we are afraid such a contention cannot now be entertained bette we have in OA28/02, Rajendra A. Sonawane vs "Union + of India & Ors, decided on 4.8.1904 held that the applicant therein who was similarly placed was entitled to reconsideration of his entitlement when he should have been considered when his junior came to be considered, In Amar Kant Choudhary Vs. State of Bihar & Ors. 1984 SC Cases (L&S) 173, the Supreme Court abserved as follows:
"After giving our anxious consideration to the uneonirove stad material placed hefore us we have reached the conclusion that the case of the appetla ant for promotion to the Indian Police Service Cadre has not been considered by the Committee in a just and fir way and his case has been disposed of contrary to the principles laid down in Gurdial Singh FUN Case. The decision of the Selection Committee recorded at its mestings in which the case of the appellant was considered was vitlated by reason of reliance being placed on the adverse remarks which were later on expunged. The High Court committed an error in dismissing the petition of the appellant and its order, therefore, Hable to be set askle. We accordingly set aside the order of the High Court. We hold that the appellant has made out a case for reconsideration of the question of his promotion to the Indian Police Service Cadre _of the State of Bihar as on December 22, 1976 and if he is not selected as on that date for being considered again as on March 12, 1981."
&. The learned counsel for the applicant pointed out to us ths t Rule 4(6) of the Indian Police Service {Appointment by Promotion) Regulations, 1955 also provides that the list so prepared shall be reviewed and revised every year and this therefore would show that the ground put forward by the Respondent No.l for not reviewing or reviewing or revising the select 48 OA BOLIG1G list Js not substantial.
6 In BK. Singh vs. State of UP. and Ors. (1991) LT ATC 341, ib was observed that "ones the adverse entries awarded to the appellant were expunged the appellant is entiticd to Selection Grade with effect from January 1, 1986 the date on which he was eligible for grant of Selection Grade." An identical situation arises in the present case and we see no merit in the objection raised by the Respondent Na... Union of India to reviewing the case of the applicant in the Hght of the expunction of the adverse confidential remarks. We note that the Respondent No.2, State of Maharashtra an their reply has pointed out that since the applicant has become eligible for being considered for promotion to the [PS in the year 1976 in view of the changed circumstances in the State Service record, his representations were forwarded to the Government of India, Ministry of Home Affairs by letter dated 30.11.1991 with the recommendation that the applicant's case may AGED be placed before the Selection Committee with a view to assess whether he was ht to be included in the Select List of SPS officers for appointment to the IPS for the year 1978. But this recommendation was not accepted by the first Respondent by the letter dated 77.4.1992. Tt is difficult for us fo acoept the submission on behalf of Respondent No} that the gpplicant is not entitled to relief. We see no merit in the plea of limitation which has been raised and the other points raised are covered by the decisions of the Supreme Court to which we had adverted.
iO. In the result, we held that (a) the applicant 15 entitled t6 be considered for appointment by promotion to the Indian Police Service in the year 1978, (b) the respondents are direcied to consider the case of the applicant for appointment by promotion to the Indian Police Service in the year 1978 and in subsequent years and order retrospective promotion with all consequential benefits mehuding payment of difference in salary. We direct that these directions shall be implemented within four months from the date of receipt of a copy of this order. There will be 20 OA MRO no order as to costs. M.P. is disposed of"
21. The private Respondent No.5 has neither Aled any reply nor attended any hearing in spite of the notice having been issued to him.
22. We have heard the counsels for the parties al length and perused the pleadings and documents fled on record,
23. The short issue involved is whether the respondents can be directed to hold a review DPC for considering the name of the applicant in the select list of 2013. It is not in dispute that the applicant had completed probation period satisfactorily on 28.02.1999 and was inducted in the cadre of Dy. Superintendent of Police ( A.C.P. On (11.03.1999, one day before the private respondent No.5 who was junior to him. It is also notin dispute that the applicant was promoted to the post of Superintendent of Police'/Dy. Commissioner of Police in 2006 and has been working at that post since then. It is also not in dispute that the ACRs of the applicant are A¢/A and he has been awarded Director General's Insignia (Medal) for meritorious service in 2015, [tis also not in dispute that no departmental procesdings were pending against the applicant on the date the DPC was held for considering the select panel. for the year 2013. It is also not in dispute that the applicant has been inducted in the IPS in the seleet Hist on 05.01.2016. The reason given by the respondents that he was not confirmed in the State Government service by the State Government at the relevant time when select list for sf OABOL2016 20 aes 4 was considered on 01012013 is n ot legally tenable as the respondents have themselves later on confirmed him in the service with | effect from 03. 12,1999. The delay in issuing confirmation order in spite of the applicant having been promoted to the post of S.P/D.C.P. in 2006 is on the part of respondent Nos.3 and 4 and in no way attributable to the
24. The contention of the respondents that there is no provision | in the IPS (Appointment by Promotion) Regulations, 1955 to deny him induction in 2013 is not justified as the mistake of non-confirmation was committed by the State Government of Maharashtra and the applicant was in no way responsible for the same. Therefore, the 4 applicant cannot be prejudiced for a mistake which has not been committed by him but which bas been committed by the State Government.
25. We find that a similar issue regarding convening of review DPC for induction in the IPS by promotion was considered by the Principal Bench of this Tribunal in O.A.2578/2012 m the ease of Raji Ranjan Vs. Union Public Service Commission & Another decided on 04.10.2012, which involved the similar issue of not convening the review DPC. In that case also the UPSC had rajected the representation of the applicant on the ground that there is no prov ision for review DPC. The Principal Bench of this Tribunal vide order dated 04. {O.2012 after considering the legal position on the issue have held in Pare 11, 12, 55, 29 GASOUZOLG tee 15, 16 and 17 as under:
"11, We are aware of the well settled proposition of law that it is not a legal requirement that reasons should be recorded for classifying 41 officer by the Selection Committee and the independence of the Selection Committee need not be meddlec with by the 'Tribunal in exercising the power of judicial review as held by Hon'ble Apes Court in UPSC versus K. Rajaiah, ((2005) 10 SCC 15], UPSC versus LP. Tiwari (006) 12 SCC 3! 7) and MN.
Thimmaiah versus UPSC (2008) 2 SCC 119). Itis forther noted that the power to classify as outstanding, very goad, good and unfit is vested with the Selection Committee. That js a flametion incidental to the selection process. The classification given by the State Government authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by and large guided by the classification adopted by the State Government but having regard to the nature of the up gradation of the applicant ¢ grading in four spells of his ACRs which were tot available before the Selection Committee, it is a basic requirement that the State Governmenis decision in upgrading of the said ACR is placed sefore the Selection Commitiee for further assessment.
12. The Hon'ble Supreme Court considered a case almost similar to the present OA in Amar Kant Choudhary''s case (supra). The appellant was a Deputy Superintendent of Police in the State of Bihar and he was eligible to be considered for appointment as a member of the Indian Police Service for the year 1973. His case was placed before the Committee constituted under Regulation 4 of the Regulations for the purpose of preparation of the list of suitable officers for promotion to the Indian Police Service Cadre of the State of Bihar in 1973, 1974, 1O7S and 1976, Inthe years 1973, 1974 and 1975, he could not he included in the select list as he was junior to those who were included in the select list. In the year 1976 nis name was not included in the select list as there was an adverse entry in his confidential roll of 1973- wt tga 34 The Selection Committee took the decision to supersede the appellant at its meeting beld on December 22. 1976. In view of the above entry in the confidential roll of the appellant. NV is not disputed that the said adverse eniry Was sammunicated to the appellant in the year 1077 after the above meelng was over. Tt appears that there were also adverse entries in the annual confidential roll of the appellant for the year 1974-75. They were communicated to the appellant in the year 1076, The appellant made representations in respect of both the adverse entries sa time. The adverse entry for the year 1973-74 was expunged by the State Government on December 3, (980 and the adverse entries in the confidential roll for the year 1974-75 were axpunged by Two orders dated February 21, 1978 and Cloteber 7, 19890. There fas no meeting oF the Selection Committee from 1077 to 1980. Ht, however, met on March LTS, Yost. On this occasion the appellant represented 16 the Committee that the adverse entries in his confidential rolls had been removed by the State Government by various orders and requested them to consider bis case for promotion to the Indian Police Service Cadre, On this secasion the Committee did not look into the confidential rolls of the appellant for the years [979-80 and 1980-81 which contained entries very favourable to the appellant for no fault of the appellant. The Committee however classified him as 'good' but did not mielude him in the select list while some of his juniors were included. The appellant represented to the Committee and the State Government against ihe decision take by the Committce. The Committee again met on Oetober 14, 198i. When nothing came out af the represehtations made by him, the appellant filed a writ petition questioning the validity of the decisions of the Selection Committes before: the Hon'ble High Court of Bihar which was dismissed af the stage of admission, Against the order of the High Court the appellant file this SLP before Hon'ble Apes Court, After referring to the legal position governing such cases laid down by it in Gurdial Singh Fi v. State af BO! GAB Punjab, (AIR yOTO SC 1622) which was a Case» grising under the Indian Administrative Service 24 QA SOLU/IOS (Appointment by Promotion) Regulations, 1955 which more or Jess correspond to the Regulations applicable to the Indian Police Service allowed the ease, the Hon'ble Apex Court in Amar Kant Choudhary's case (supra) held as follows:
8. After giving Our QrXiOUS comideration to the uncontroverted material placed before us we have reached the conclusion that the case of the appellant for promotion to the Indian Police Service Cadre thas not been considered by the Cormmittes in a just and fair way and his case has been disposed of contrary to the principles laid down in Gurdial Singh Fig's case (supra). We accordingly set aside the order of the High Court. We hold that the appellant has made out a case for reconsideration of the question of his promotion to the Indian Police Service Cadre of the State of Bihar as on December 2, 1976 and if he is not selected as on that date for being considered again as on March 12, 1961.
if he is not selected as on March 12, 1OSt his ease has to be considered as on Ostober 14, 1O8t, The Selection Committee has now to _ reconsider the case of the appellant accordingly after taking into consideration the orders passed hy the State Government subsequently on any adverse entry that may have been made oarlier and any other order of similar nature pertaining fo the service of the appellant. H' on such reconsideration the appellant is selected he shall be entitled to the seniority and all other consequential benefits flowing therefrom. We-
-igsue a direction to the respondents to reconsider the case of the appellant as stated above, We hope that the above direction will be complied with expeditiously but not later than four months from today.
13. Thus, it is trite law that when employees ACR gradings get upgraded subsequent to the convening of the DPC or Selection Committee it would be necessary to consider the case of such employee after teat Lea) the upgradation In the ACR gradings have been raceived, Therefore, 15 such cases the competent authorities are to convens the review DPC/Selection Committee to re-examine the case of such employees.
18, Admittedly, the applicant has received the ACRs for those periods anc has represented to the eoncemed competent auihority W sho on consideration have upgraded those gradings from Good to Very Good. TE is seen that for the selection year 2010 for IPS these upgraded ACKs form af alevant part of the entire overall assessment, These upgraded. ACRs were made available only afier the Selection Committee meeting. OF Sourse, at the time the Selection Committee mek St wh upgraded "ACRS were not available before it. Therefore, the ACRs then existing as on 16.14. 3011 are such that the applicant s assessment were accordin ty done by the Selection Committee. Now that the ACRs gradings of the applicant for four periods t have been Hpem ated to Very Good, Ho is bul necessary that the Selection Committee should recons: der 'the applicant 8 case for his promotion to IPS.
as
16. In the present case, the veil set proposition of jaw would be attra cted as the applicant § ACR gradings have been se up arid suck sealed gradings have not been ox mines ed by ue Sele Commitice while consice promation will all DA Segment Joint AGMUT Therefore, the letier issued 6) applicant s represent vtation and ths 3° pegpondent is not susial! 'The sare needs to be quas arder acoordingly.
'On fice x of law.
<7, In the conspectus of facts and cireumstances of the case and guided by the judgments af Hon'ble Supreme Court gtated within, we are of the considered opinion that there are merits in support of the applicant s claim. Thus, the OA succeeds, The on OASZOUZOIG 2 QA.301/2016 pripugne ed order dated 29.06.2012 is quashed and set aside, The respondents are directed to convene a review Selection Committee for considering the applicant s case for promot jon to the UT Segment of joint AGMUT Cadre of IPS for the year 2010 and while doing so the Selection Committee v will also consider the upgraded ACRs of the applicant along with other ACRs for proper assessment. In case, the Selection Committee, find him suitable for promotion he shall be granted promotion from the date his immediate junior was promoted, It goes without saying that consequential benefits, which would be legally admissible to the applicant, would also be extended to him. The respondents are directed to comply with the orders and directions as ordained above as expeditiously as possible and positively within a period of three months from the dats of receipt of a certified copy of this order"
26, We further find that Hon'ble Supreme Court in thei judgment dated 02.02.2017 had occasion to consider a similar issue in the case of PB Sivanandi Vs. Rajeev Kumar & Ors. in C.ANo.4822- A8262007, reported in AIR 2017 SC Vid. In that case the issue involved was whether a review DPC ean be convened to consider the Annual Confidential Reports of an officer which were not available at the time of Selection Committee after the list has been finalised and the same has been acted upon by the Government. The Hon'ble Supreme Court after considering the law on the subject has held in Para 11, 14, 18, 19, 21 and 22 as under:
"11, One of the subroissions made by the Union Public Service Commission (for short "UPSC) to justify the selection by the Review Select Commission before the High Court was that the ACR for the period 01.04.1993 te 15.07.1993 sould validly _ a GABON2016 nave been considered by the Review Select Commities. Alternatively, it was subntitted that oven ft were exciuded from consideration, would make no difference to the overall grading of Sivanandi and. that if was the earlier missing ACR of 1992-95 thal resuited in Sivanandi being graded "Very Good' as against the earlier grading of 'Good', AS such, the promotion of Sivanandi to the IPS was fully justified "na law and also on merit, even after excluding the ACR for the period 01 64.1994 to 15.07.1993.
Ae eS
14. Inthe aforesaid decision, the provisions of the Indian Administrative Service (Appointment by Promotion) Regulations, 1985 were under consideration. 'The relevant provisions are in pari materia with the provisions nf the Indian Police Service (Appointment by Promotion) Regulations, 1955,
18. This is what this Court had to say:
"In the guidelines issued by the State Government, there is nothing to declare any annual confidential report invalid. The period of 90 days prescribed therein is not mandatory pat directory. The 90 days period is alse ta be counted from the date of demitting office by the officer who writes the ACR.
Tn view of the discussion above, we hold that in terms of Regulation g(a) of the Indian Administrative Service (Appointment by Promotion} Regulations, 1955 was meumbent upon the State Government to forward cormplete service records of all the gligible candidates including the -- first respondent to UPSC for considering them for prometion to the TAS cadre. Withholding of ACRs of the year 4903-2009 of the first 28 OA SOL2016 respondent an a Wrong presumption that they awere invalid, is illegal and fatal in the case af the first respondent towards his appointment to the post of Indian Administrative Service. The aforesaid fact though came to the notice of UPSC which sought clarification from the Government of Tamil Nad, the State Goverment misled UPSC which resulted in wrong agsessment of service records of the first respondent in violation of Regulation (4) read with Regulation 6 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955."
19. That apart, the fact that the ACR of Sivanandi was written and reviewed by his superior authorities after a considerable delay obviously cannot put him to any disadvantage. The writing and review of his ACR was beyond his control and we do not see any rational basis on which Sivanand) could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities.
21, The question that now remains is whether on a consideration of the entire service record Sivanandi was entitled to be promoted to the IPS with the year of allotment as 1991, There is nothing to suggest that the Review Select Committee with the UPSC did not consider the case of Sivanandi for promotion on merit ot that the view of the Review Select Commiliee was perverse in any manner That being, so we do not think if proper to interfere with the decision arrived at by the Review Select Committee with the LPSC an the basis of the service record of Sivanandi more so when it was the submission of the UPSC that what Stled the scales in his fayour was his ACR for the period 1992-93 which was earlier missing and which was not taken into consideration on an earlier occasion.
22, Under these circumstances we uphold the wy Godt a OA BOL ZOLG decision taken by the Raview Se lect Committee and allow these appeals t by setting aside the order of the High Court. Sivanandi will be entitled to all sonsequential benefits."
(emphasis supplied)
27. We find that the case of the applicant is squarely COV reared by the above judgments 85 the delay in confirming him in the State Police Service was on the part of respondent Nos and 4 and in no Way attributable to the app! Heant. In view of the above factual conspectus, We are of the considered of sinion that there are merits in support of the applicant's claim to hold a review DEC, The impugred letter issued by uUPSC on the applicant's representation is not sustainable in the eyes of law, The same needs to be quashed and set aside. We order accordingly.
28. The OA. is allowed. The rest nondents are directed to convene a review Sstection Committee for considering applicant's case for promotion to the eadre of IPS for the select list of 2013 and promote him to the IPS with effect from when his immediate junior Le. Respondent Nos was promoted with ali consequential benefits. The respondents are directed to comply with the above order and directions within a period of three months from the date of reoeipt of a certified copy of this order,
28. There shall be ne order as to costs, (Shh } Krishnayeo™ (Hs rvinder Kaur Oberoi) Member (A) Member ().
Hh.