Central Administrative Tribunal - Ernakulam
C Bastin Sabu vs Union Of India Represented By The ... on 23 May, 2023
1
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00527/2021
Tuesday, this the 23rd day of May, 2023
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
C. Bastin Sabu, aged 55,
S/o.Chellakkan. J,
Superintendent of Police (Non-IPS),
Abcee Home, T.C. 18/1849 (JRA-415), Jai Nagar,
Thirumala, Thiruvananthapuram, Pin Code - 695 006.
Now working at Marine Enforcement, Vikasbhavan,
Thiruvananthapuram - 695 006. ...Applicant
(By Advocate: Mrs. Girija K. Gopal)
VERSUS
1. Union of India, represented by its Secretary,
Department of Personnel and Training,
Ministry of Personnel, Public Grievances and Pension,
New Delhi.
2. The Union Public Service Commission
represented by its Secretary,
Shahjahan Road, New Delhi - 110 069.
3. The Selection Committee for Selection
to the Indian Police Service, Constituted under
Regulation - 3 of the Indian Police Service
(Appointment by Promotion) Regulations 1955
represented by its Chairman,
Union Public Service Commission,
New Delhi - 110 069.
4. The State of Kerala
represented by Chief Secretary,
Government Secretariat, Trivandrum - 695 010.
5. The State Police Chief, Police Headquarters,
Trivandrum - 695 010.
O.A No.180/527/2021
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6. AjithV, aged 57 years,
S/o G.Vijayan,
Kodiyil Veedu, Vennikodu P.O.,
Thiruvananthapuram - 695 318. ...Respondents
(By Advocates: Mr.N.Anilkumar, SPC for R1,
Mr.Thomas Mathew Nellimoottil for R2&3, Mr.Baijuraj G, Sr.GP for R4&5
and Mr.A.Rajasimhan for R6)
This Original Application having been heard on 6th April, 2023, the
Tribunal on 23rd May 2023 delivered the following :-
ORDER
Per: K. V. Eapen, Administrative Member The applicant in this Original Application (OA) is presently working as Superintendent of Police (SP) (Non IPS), Marine Enforcement, in Thiruvananthapuram. As his date of birth is 24.05.1967, he is due to retire from the State Police Service on 31.05.2023, on attaining the age of 56 years. The applicant had entered into service as Sub Inspector of Police on 20.04.1995. He was later promoted as Circle Inspector of Police on 22.10.2002 and was further promoted as Deputy Superintendent of Police (Dy.SP) on 14.08.2008. He was promoted as Superintendent of Police (SP) on 12.12.2017. This O.A was filed on 07.10.2021 by him as he was aggrieved by non-consideration for selection and appointment to Indian Police Service (IPS) in the Batch of 2018. He asked for a direction on the Respondents 1-3 to consider him for selection and appointment to Indian Police Service for the year 2019 onwards. An interim direction was also sought to stay the operation of Annexure A10, a Matrix regarding his record prepared year-wise for the Selection Committee Meeting (SCM) held on 24.06.2021in the Union Public Service Commissison (UPSC), for preparation of the Select List of 2018 for O.A No.180/527/2021 3 promotion to the IPS of Kerala Cadre. He had submitted that in so far as he was concerned he had been declared unfit in the assessment of the SCM for the years 2014, 2015, 2016, 2017 and 2018 in the Matrix. It was also indicated in the Matrix that "Penalty of increment bar of one year without cumulative effect has been imposed on him on 27.02.2006 but was not implemented then. However the amount to be deducted for the above period was calculated as Rs.5016/- which was paid by the officer on 12.03.2021." He asked for interim stay of the operation on Annexure A10 Matrix as well as a stay on the minutes of Selection Committee Meeting held on 24.06.2021 at Annexure A11 for preparation of list of members of the State Police Service of Kerala who are suitable for promotion to the Indian Police Service (IPS) against the vacancies of 2018 to the extent that he had been declared unfit for selection and appointment to the IPS. He also sought a direction that he should be considered for selection and appointment to the Indian Police Service for the year 2019 onwards, pending disposal of the O.A.
2. This Tribunal considered the prayer for interim relief in the OA and issued detailed orders on 10.12.2021. While passing the orders it was noted that, for the purpose of interim relief, in the absence of a reply statement from the UPSC or any other information provided by the respondents, no directions on the issue of whether the assessment was properly arrived at were being issued. It was also recorded that the Tribunal was also not aware whether all the relevant details were in front of the Selection Committee in its Meeting held on 24.06.2021, before it had made its selection. The Tribunal also took into account, the judgments of the Hon'ble Apex Court to the effect that O.A No.180/527/2021 4 Tribunals and Courts cannot sit on judgment over the findings of the Selection Committee, unless a clear element of malafide, error, bias etc. are brought out. In fact, the Tribunal in its interim order also referred to its own order dated 25.11.2021 in O.A's No.180/528/2020 and 180/444/2021 in the matters of Suresh Kumar K. S v. Union of India and others and C.F Robert v. State of Kerala and others by which the Tribunal had not allowed the two OA's for these very reasons. However, it was noted in the interim order that from the details brought out there could have been some elements of error on the part of the State Government in terms of not properly presenting all the required details to the UPSC in a proper manner. The Tribunal brought out the relevant details in this regard specificallty at paragraph 9 of the interim order. Given the details and concerns as shown in these issues, this Tribunal directed the State Government to once again bring out all the relevant details of the case of the applicant in a transparent manner, while sending the next proposal for preparation of Select List 2019 to the UPSC, on the lines indicated earlier. Specifically, the State Government was directed to give its explanation in not following up on the orders at Annexure A-2, the failure of the State Police Chief to report to the State Government about the cancellation of the penalty order imposed by the Inspector General of Police, North Zone and all other relevant matters in light of the observations, as well in light of the Guidelines and Regulations. The UPSC was also directed to consider these aspects while making the assessment of the applicant for promotion/selection, if he was otherwise eligible to be considered for the Select List 2019. It was also indicated in the order that the period of currency of the punishment, which O.A No.180/527/2021 5 was related to the year 2006-2007, but was implemented due to inexplicable reasons only later in 2021 much of which seem to be due to mistakes on the part of the State Government, would have to be considered by the Selection Committee of the UPSC in the light of the details provided. Thus, in effect, the interim order was only to direct the authorities at the State Government level as well as in the UPSC to examine the whole matter of the case of the applicant in the light of all required and relevant details, in any future selection processes to the IPS involving the applicant. In addition the UPSC as well as the State Government were also directed to file their detailed reply statements at an earlier date in the O.A., taking into consideration the observations made by this Tribunal in the Interim Order.
3. The above interim order was passed on 10.12.2021. Learned Counsel for the applicant Smt.Girija K Gopal then filed M.A No.180/675/2022 for a direction submitting that the State Government had not evidently by the nature of the facts in the letter submitted by them at Annexure A13 along with the documents to the applicant, actually furnished the information relating to the applicant to the UPSC in the proper perspective keeping true to the spirit of interim order by this Tribunal dated 10.12.2021. Learned counsel apprehended in the M.A.No.180/675/2022 that based on the Explanatory Note and information furnished by the State Government to the UPSC, the candidature of the applicant may once again not be positively considered by the Selection Committee of the UPSC in its ensuing meeting. It was submitted that it was likely that the candidature of the applicant would be rejected solely on the basis of the presentation of the information in the report O.A No.180/527/2021 6 as well as the explanations as indicated in the document at Annexure A13. This Tribunal then went through the materials provided in the documents at Annexure A13 as well as the representation which had been directly addressed by the applicant to the Selection Committee of the UPSC at Annexure A14. The submissions of the learned counsel for the applicant were found by this Tribunal to have considerable force. When the matter was thus being considered on 02.09.2022, learned Nodal Counsel for the UPSC, Shri.Thomas Mathew Nellimoottil informed the Tribunal that the Selection Committee Meeting for considering the IPS vacancies for Kerala for the years 2019 and 2020 together had already been conducted and that it was only awaiting the final approval of the Commission. He, therefore, vehemently opposed any other orders being passed in addition in the matter at that stage. However, after hearing all sides and after perusing the report and Explanation Note in Annexure A-13, this Tribunal recorded that it was, prima facie, satisfied that its observations in the earlier interim order dated 10.12.2021, especially the observations made at paragraphs 9-11 of the same, had not been properly presented to the Selection Committee by the State Government. In these circumstances, it was directed that the Annexure A-14 representation submitted by the applicant should be properly considered within a period of 30 days by the Selection Committee, before the finalisation of the Select List for the vacancies in IPS for the years 2019 and 2020. It was also directed that, if required, a Review Selection Committee Meeting could also be conducted even online for the purpose. It was further directed that the Selection Committee should consider all the observations and directions made in the O.A No.180/527/2021 7 interim order dated 10.12.2021 of this Tribunal and the explanations of the State Government, before finalising its decision relating to the suitability of the candidature of the applicant. It was also directed that, even after such consideration if the applicant was not to be included in the Select List, one of the vacancies for the year 2019 would be kept unfilled until the final disposal of this O.A. It was also made clear that this order would not stand on the way of filling up remaining vacancies of 2019 and 2020 from among the other eligible persons shortlisted in the Select List for the IPS for Kerala, for the vacancy years 2019 and 2020. It was indicated that these orders were only in the case of the applicant.
4. Copies of the above order dated 02.09.2022, which was the second interim order in the matter, were then issued to the learned counsel appearing for the different sides. The aforementioned M.A was disposed of accordingly. However, shortly after this, the Tribunal had to once again take up the matter for consideration on 21.09.2022 and issue a third interim order. This was because some other State Police Service (SPS) officers who were also being considered in the selection to the IPS along with the applicant, separately approached this Tribunal in O.A Nos.491/2022 and 495/2022. When the matter was taken up on 21.09.2022, learned Nodal Counsel for UPSC submitted that with reference to the second interim order dated 02.09.2022, the UPSC would require some more time to hold the meeting owing to its busy schedule in relation to various Departmental Promotion Committee (DPC) meetings being conducted as well as due to meetings regarding promotion of officers from other States. On the other hand, learned counsel for O.A No.180/527/2021 8 the applicants in the O.A Nos.491/2022 and 495/2022 pressed that the promotion/selection of the applicants therein to the IPS had already been delayed. It was submitted by them that the action on the Selection Committee Meeting proposals/Select List for 2019 and 2020, which had already been finalized earlier by the Selection Committee should be completed immediately. It was submitted that the concerned State Police Service (SPS) Officers had been waiting for selection/promotion to the IPS for some time. In addition to this, the learned Sr. State Government Pleader, Shri. Baijuraj G, also submitted that there were as many as 43 vacancies in the cadre of IPS in Kerala. The State Government was also, therefore, keen that the UPSC should complete the process of selection at the earliest in this regard. After considering these issues, this Tribunal on 21.09.2022 passed another order noting that it had earlier passed interim orders on two previous occasions on 10.12.2021 and 02.09.2022 in this O.A., only after taking into account its prima facie finding that the State Government had not properly presented the facts of the case of the applicant herein, to the Selection Committee of the UPSC. It had also been, prima facie, found that the matter was not presented to the Selection Committee for a proper consideration of the case of the applicant in the right perspective. It was also noted in the order that this Tribunal had made it clear that its second interim order would not stand in the way of filling up the remaining vacancies of 2019 and 2020 from among the other persons shortlisted in the Select List for the IPS Kerala for the vacancy years 2019 and 2020. Hence, there was no question of the orders of this Tribunal being interpreted as stopping the UPSC from finalising the Select O.A No.180/527/2021 9 List for 2019 and 2020 for the other vacancies, after keeping one of the vacancies in 2019 unfilled in case the applicant herein was not found suitable for Select List. This position was reiterated in the third interim order on 21.09.2022 and after giving due consideration of submissions made by the learned Counsel for UPSC, the Tribunal also allowed the extension of the date of consideration of the representation at Annexure A14 along with its other directions to 25.10.2022. It was also indicated that there would be no further extension granted in the matter. It was also recorded that Tribunal had a strong expectation that the Government of India and the UPSC would expedite all the subsequent processes for finalising the Select List for the IPS for the vacancy years of 2019 and 2020 at the earliest possible date without further delays.
5. The matter came up again before the Tribunal on 26.10.2022. At that time. Learned Nodal Counsel for UPSC submitted that a Review Selection Committee Meeting had been held and that a report had been forwarded to the State Government on 21.10.2022. When the matter came up again on 28.11.2022, orders were passed in the M.A.No.180/698/2022 filed by some other SPS Officers for impleading themselves in the O.A. When the matter was heard learned counsel for these Miscellaneous Applicants submitted that he would be satisfied if at least the first applicant in the MA was impleaded as after the UPSC had kept aside one vacancy in the 2019 Select List on the directions of this Tribunal, only the first MA applicant had been affected and also because he was senior to the applicant in the O.A. After hearing all sides, this Tribunal allowed the protection of the interests of the impleading first Miscellaneous Applicant taking him into the respondent array. Accordingly, O.A No.180/527/2021 10 the first applicant in the MA Shri.Ajith V, was impleaded as the 6th respondent in the O.A. Later, some other M.A applicants filed another MA for impleading themselves vide M.A.No.180/1029/2022, which was not allowed. Meanwhile, M.A No.964/2022 for direction and M.A.No.1027/2022 for amendment to the O.A filed by the applicant in the O.A were allowed. The applicant in the OA was directed to carry out the approved amendment and to file an amended O.A within a week's time when the matter was considered on 14.12.2022. It was also ordered that reply statements to the amended O.A should be filed before the next date of posting. An amended O.A was then filed by the applicant on 14.12.2022.
6. The issues brought out in the amended O.A by the applicant are to be taken up thus for our final orders. The basic details in relation to the applicant's service career were brought out earlier. The applicant submits that while he was working in the post of Circle Inspector of Police at Payyoli, Kozhikode Rural, a non-oral inquiry had been ordered against him. Vide an order dated 27.02.2006 issued by the Inspector General of Police (North Zone) of the Kerala Police, he was awarded with a punishment of bar of increment for one year without cumulative effect. A copy of the said order dated 27.02.2006 of the Inspector General of Police, North Zone has been produced at Annexure A1. The applicant submits that he accepted this punishment and did not challenge the same. However, thereafter, the Home Department of the State Government of Kerala vide an order dated 07.07.2006, a copy of which has been produced at Annexure A2, ordered an oral inquiry against the applicant (Sri. C Bastin Sabu, the then Circle Inspector of Police, Payyoli) O.A No.180/527/2021 11 under Rule 6 of the KPDIP&A Rules 1958 in place of the non-oral inquiry ordered against him by the Inspector General of Police, North Zone. The Home Department also directed the State Director General of Police to suggest a competent officer to conduct the said oral inquiry against the applicant under Rule 8(i)(iii) of the above Rules. Further, a copy of the order was also issued to the Inspector General of Police (North Zone) to cancel the earlier disposal of the PR minutes drawn up against the applicant, Sri. C Bastin Sabu, the then CI of Police on the same issue as per order dated 27.02.2006 and to issue proceedings immediately under intimation to the office. It was also directed to the Inspector General of Police (North Zone) to suggest a competent officer for conduct of the oral inquiry against the delinquent by return. It is thus clear from this order that the State Government had been aware of the order dated 27.02.2006, produced at Annexure A1, and that the applicant had already been awarded the punishment of increment bar for one year without cumulative effect. The subsequent order at Annexure A2 dated 07.07.2006 however directed the cancellation of the disposal of the PR minutes drawn up against the applicant Sri. C Bastin Sabu.
7. The applicant then challenged the above Annexure A2 order dated 07.07.2006 before the Hon'ble High Court of Kerala in WP(C) No.33254 of 2006. His main ground was that he had already been issued a penalty on the same issue. The matter was however disposed of by the Hon'ble High Court by the Annexure A-3 judgment only on 21.06.2016. It was recorded in the Judgment that the petitioner had challenged the Exhibit P6 order passed by the Government by which an oral inquiry against him was ordered under Rule 6 O.A No.180/527/2021 12 of the KPDIP&A Rules, 1968 in the place of a non-oral inquiry already ordered against him and where punishment had been already awarded to him as per Ext.P5 order. It was noted in the judgment that, the Inspector General of Police after causing an inquiry through Inquiry Officer had passed Exhibit P5 order on the basis of the PR Minutes in which it was found that the petitioner had behaved in indecent manner and was awarded a punishment of increment bar for one year without cumulative effect. The Judgment noted that it was submitted by the petitioner that the Inquiry Officer had already found him guilty of the charge that, while working as C.I of Police, Payyoli, he had behaved in an indecent manner with an individual and he had been awarded punishment only of one increment bar without cumulative effect. It was only after that that the impugned Exhibit P6 proceedings were issued by the Government ordering an oral inquiry, instead of non-oral inquiry ordered against him by the Inspector General of Police. The Judgment noted that the petitioner had therefore filed the writ petition challenging the Ext.P6 order alleging that since he had already suffered punishment for the same incident, he could not be subjected to further inquiry and proceedings for yet another punishment. It was noted in the Judgment that the High Court had by its order dated 14.12.2006 had already stayed the operation of Ext.P6 order. It was also noted that the respondents including the State of Kerala and the Director General of Police Thiruvananthapuram and Inspector General of Police, North Zone had not filed any counter affidavit and the interim order was continued. The Hon'ble High Court recorded that it was also pointed out by the learned counsel for the petitioner that the petitioner had subsequently been granted O.A No.180/527/2021 13 promotions and was presently working as Dy.SP. It was noted from Ext.P6 that the Government had ordered an oral inquiry on the basis of a petition received from the leaders of political parties. It was further noted that there was no reference to the punishment awarded in finalization of the non-oral inquiry in Ext.P6 order passed by the Government.
8. Drawing inference from the above, the Hon'ble High Court found that the direction to conduct an oral inquiry in the case of the petitioner had been issued without noticing the fact that the disciplinary authority had already awarded the punishment after completing the non-oral inquiry ordered earlier. Under these circumstances, the Hon'ble High Court found, in its judgment at Annexure A-3, that the petitioner could not be subjected to another inquiry after the punishment was awarded after finalisation of the non-oral inquiry in respect of the very same incident. It was also found that there was no provision in KPDIP&A Rules which provides for an inquiry once proceedings are completed culminating in a punishment by resorting to a non-oral inquiry.
9. The above order dated 21.06.2016 at Annexure A-3 has become final as there was no application for review etc. As noted in the interim order of this Tribunal, it was significant that the State Government did not seek to either go for a review of this order or for an appeal against it. It was equally significant that the State Government did not even care to file any counter affidavit after the interim stay of the oral proceedings, as noted by the Hon'ble High Court. In any case after the receipt of this judgment the Government of Kerala, vide Annexure A4 dated 27.02.2017 passed an order stating that the matter had been examined in detail and since the applicant, Sri. Bastin Sabu, CI, had been O.A No.180/527/2021 14 given a punishment of increment bar of one year without cumulative effect, the further disciplinary action initiated in this regard vide Government order is dropped and the judgment of the Hon'ble High Court of Kerala is accordingly complied with. However, as the Annexure A4 order had certain typographical errors as it referred to the date of the Annexure A1 order as 27.02.2016 instead of 27.02.2006 and the date of Annexure A2 order as 17.07.2016 instead of 07.07.2006, the applicant submitted a representation on 17.04.2017 to the Respondents 4 & 5 (the Chief Secretary, Kerala and State Police Chief) to correct the mistakes. It is also relevant to bring to notice that by another order dated 24.10.2006, the Inspector General of Police, North Zone, Kerala Police had after receipt of the Government order dated 07.07.2006 at Annexure A-2 and endorsement from Police Headquarters in this regard, cancelled the entire disciplinary proceedings initiated against Sri Bastin Sabu, CI of Police as wel as the punishment awarded vide order dated 27.02.2006 (Annexure A1). This order of the Inspector General of Police had been produced by the applicant at Annexure A5. Thus, in effect from the above developments, it so happened that both the penalty order at Annexure A1 as well as the oral inquiry ordered vide Annexure A2 were cancelled. The combined effect of these developments was that the applicant did not actually suffer the punishment of increment bar for one year without cumulative effect ordered at Annexure A1. Nor was an oral inquiry conducted against him in consonance with the directions in the judgment of the Hon'ble High Court vide Annexure A3, which had set aside the Annexure A2 order of the Government of Kerala dated 07.07.2006.
O.A No.180/527/2021 15
10. The above facts regarding the position of the imposition of penalty on the applicant, apparently came to the notice of the State Government only when the applicant made the aforementioned representation on 17.04.2017 to correct the mistakes in the said Annexure A4 order. The Home Department of the State Government taking into consideration this position, then passed another order produced in translation at Annexure A6 by the applicant. The judgment by the Hon'ble High Court as well as the orders passed previously by the Inspector General of Police (North Zone) and the Home Department were referred to in this order dated 14.12.2017 produced at Annexure A6. It was noted in this order that the applicant, Sri. Bastin Sabu, had approached the Government with an application in relation to correction of dates mentioned in the Annexure A4 order. It was also recorded that in the same application it had also been requested by Sri Bastin Sabu that as the punishment imposed on him as per Annexure A1 order was cancelled as per Annexure A5, the reference to the matter in Annexure A4 that the order to bar annual increment with cumulative effect for one year existed was to be deleted. It was recorded in the Annexure A6 order that the Government had examined this representation of Shri.C.Bastin Sabu in detail. It was noted that an oral inquiry had been ordered as per Annexure A2 by the Government and the Inspector General of Police had then cancelled the punishment awarded by issuing the order dated 24.10.2006 vide Annexure A5. However the Government was not aware about this fact. Not only that, the applicant did not include the fact of cancellation in his writ petition in the Hon'ble High Court also. Hence, if a change was to be made in the order at Annexure A4 and the punishment O.A No.180/527/2021 16 awarded to him as per Annexure A1 was cancelled, the result would be the presumption that there was no departmental inquiry or punishment against the applicant. Not only that, it was also to be considered that the punishment awarded to him was cancelled as per Annexure A5 only because of the decision of the Government to order an oral inquiry as per Annexure A2. In view of this position it was indicated in the Annexure A6 order that Government had decided to cancel the order passed by the Inspector General of Police vide Annexure A5 dated 24.10.2006 suspending the punishment imposed on the applicant and also to reinstate the order which bars the increment due to him with cumulative effect for one year. Further, the references in Annexure A4 order were also modified to indicate the right dates.
11. Thus from the above order at Annexure A6 dated 14.12.2017, it is clear that the Government cancelled the order of the Inspector General of Police (North Zone), produced at Annexure A5, which had, in turn, cancelled the earlier penalty order imposed on the applicant and also reinstated the original penalty order. This order was passed as noted only on 14.12.2017. However, thereafter, there was yet another unexplained and significant gap in the proceedings. A letter of the Accountant General (AG) of Kerala dated 11.03.2021 (about 3 ½ years subsequent to the order at Annexure A6) has been produced in the O.A at Annexure A7. In this letter of the Accountant General it is only indicated that the punishment of increment bar for one year without cumulative effect awarded to Shri.Bastin Sabu vide the order dated 14.12.2017 (Annexure A6) by O.A No.180/527/2021 17 barring the increment due on 01.07.2006 and excess pay and allowances drawn for the period from 01.07.2006 to 30.06.2007 amounting to Rs.5016/- may be got refunded and the other details thereof forwarded to the office for verification and further action. This letter had been issued from the Office of the Accountant General (A&E), Kerala and is addressed to the State Police Chief, Police Headquarters, Thiruvananthapuram. As is obvious, this letter produced at Annexure A7, only indicates the amount of money to be refunded due to the penalty imposed on the applicant. However, no reason is given for the gap of around 3 ½ years between the order at Annexure A6 dated 14.12.2017 and the direction of the Accountant General, Kerala at Annexure A7 dated 11.03.2021. This is not been explained either by the applicant or the respondent State Government and also has been considered significant, though it could play its own part in this O.A in terms of assessment of the concerned period by the Selection Committee for the applicant being declared 'unfit'. In any case, on the very next day subsequent to the letter at Annexure A7 from the Accountant General addressed to the State Police Chief with a copy to the applicant, the 'excess' payment of Rs.5016/- was refunded by the applicant by Treasury Chalan on 12.03.2021. A copy is produced at Annexure A8. The date of 12.03.2021 then assumes significance as it has been taken by the UPSC that the penalty imposed on the applicant vide Annexure A1 was only thus finally implemented only on 12.03.2021. Practically, therefore, the UPSC procedurally then found him unfit for selection for the IPS from the Select Year 2018 onwards O.A No.180/527/2021 18 due to the so called pending penalty in the Assessment Years from 2014 onwards relevant for consideration for selection to the IPS for 2018 onwards.
12. The applicant argument is, however, that the disciplinary proceedings and the retained original order at Annexure A1is dated 27.02.2006. Hence, the amount to be recovered from him on account of the bar of increment was only for the period from 01.07.2006 to 30.06.2007 and thus, the currency period of this punishment should be taken only from 01.07.2006 to 30.06.2007. This is, as we will see, the crux of the issue to be adjudicated in this O.A. The applicant submits that he was eligible to be considered for selection and appointment by promotion to Indian Police Service from the year 2018 onwards. He had been included at serial number 20 for the year 2019 in the zone of consideration produced at Annexure A9 prepared by the State Police Chief and sent to the State Government. (It may be noted that the respondent No.6 Shri. Ajith V is at one place above him at SI.No.19 in the said Zone of Consideration). His contention is that even though the effective date of the punishment imposed on him was 2006-2007; this fact was not properly declared or clarified in the various reports submitted by the respondents 4 and 5 to the 2nd respondent, UPSC in his case. As such, since the effective currency period of the punishment was not mentioned or clarified, it has been erroneously reckoned to be in effect till 12.03.2021 by the 3rd respondent, Selection Committee of the UPSC. Accordingly, this was reflected in the Assessment Matrix, produced at Annexure A10, prepared by the 3rd respondent Selection Committee in its meeting held on 24.06.2021 for O.A No.180/527/2021 19 the preparation of the Select List for the year 2018. This assessment indicated, as brought out earlier, that he had been assessed for each of the previous 5 years before 2018, i.e., for 2014, 2015, 2016, 2017 and 2018 and deemed 'unfit due to penalty' for each year. Therefore, his overall assessment was declared unfit.
13. A relief earlier sought in the initial O.A by the applicant was for a declaration that orders at Annexure A6 are illegal and without jurisdiction and the same too should be declared void. The applicant submits that it is imperative to note that the punishment had been imposed only for the period 01.07.2006 to 31.06.2007 but the 4th respondent, without rectifying the mistakes in Annexure A4, simply reinstated the punishment on the applicant by the Annexure A6 order. However, the date of punishment was not mentioned, though it was obviously for the period 2006-2007. It is submitted that the respondents 2 and 3 have thus committed an error by assessing the ACR of the applicant on the basis of the Annexure A6 order and have graded him 'unfit' for promotion to the Indian Police Service. The minutes of the meeting held on 24.06.2021 reveal that the Selection Committee had graded him 'unfit' for preparation of Select List of 2018 only because the penalty of barring one increment as per Annexure A1 dated 27.02.2006 had been imposed and because the amount of Rs.5016/- towards excess pay and allowances drawn by the applicant for the period from 01.07.2006 to 30.06.2007 was debited only on 12.03.2021. This mistake is indicated at internal page 9 of the Annexure A11 Minutes of the Selection Committee Meeting held for preparation of the Select List of 2018. It is significant that O.A No.180/527/2021 20 the effective period of punishment had not been mentioned in his case in the Minutes. The only remark (which has been repeated time and time again) is that "Penalty was imposed on 27.02.2006 but was not implemented then. However, the amount to be deducted for the above period was calculated as Rs.5016/- which was paid by the officer on 12.03.2021". However, in contrast to this, the currency and effective period of punishment imposed on the persons appearing at Serial Nos. 2 and 3 at internal page 9 of the Annexure A11 clearly define the currency period of the penalty in their cases. There is no indication of this in his case however.
14. The applicant has brought out in detail his argument as to why the above position of the respondents has no factual or legal basis in his averments contained at paragraph 4(i) to 4(s) and 5(i) to 5(q) of the amended O.A. He submits that, despite the directions of this Tribunal in its interim orders, this problem of misinterpretation continued even during the Selection Committee Meetings held even subsequently for preparation of the Select Lists of 2019 and 2020. The first meeting of the Selection Committee was held on 27.06.2022 to consider the vacancies of the year 2019. He had at that time sought a copy of the proposal forwarded by the State Government to the Selection Committee of the UPSC for the purpose of considering him for conferment of IPS for the years 2019 and 2020. A copy of the proposal forwarded by the Government of Kerala was received by him in reply to a RTI Application. This has been produced at Annexure A13 in the amended O.A. The applicant points out that he was again shown in the table relating to details of penalties imposed on the candidates with the remark that penalty O.A No.180/527/2021 21 was dated 27.02.2006 and the penalty was increment bar for one year without cumulative effect. However, in the column for period of currency of the penalty and when the currency of penalty would be over, entries were made indicating that though the penalty awarded was to be imposed for the period from 01.07.2006 to 31.06.2007, it was implemented only on 12.03.2021, since the amount of Rs.5016/- to be deducted from his salary was refunded by him on 12.03.2021. Further, the Explanatory Note prepared by the State Government and appended to the penalty statement submitted to the UPSC, which is also a part of the proposal for conduct of Selection Committee Meeting, indicates that a copy of the proceedings dated 24.10.2006 which was the cancellation of the penalty by the Inspector General of Police (North Zone) had been marked to the applicant. The Hon'ble High Court's order cancelling the proceedings initiated by the State Government was however delivered only on 21.06.2016 (almost ten years after the cancellation of punishment by the IGP, North Zone). Thus, the Note states that it can be assumed that the applicant was aware of the cancellation of the punishment but he had never appraised the Hon'ble High Court of this development in interregnum 10 years. The Government of Kerala had found only much later in 2017 that the applicant had technically received no punishment, as both the orders of IGP, North Zone and that of the Government were cancelled, though the inquiry had revealed misconduct on the part of the officer. The Note then states that vide order dated 14.12.2017 (produced at Annexure A6) Government then ordered restoration of punishment originally awarded to the officer by the IGP, North Zone of increment bar for one year without cumulative effect vide O.A No.180/527/2021 22 proceedings dated 27.02.2006 (Annexure A1). The next step after restoration of the punishment was to effect the increment bar with effect from the date of the officer's next increment with effect from 01.07.2006. However, this was not done. The Note then states that this lapse was not noticed for almost three years till the time of submission of proposal to the UPSC for 2018 selection. The Note then states that only when the details were sought from the State Police Chief for preparing the Annexure 4.2 Penalty Statement, it was realised that the penalty had not been imposed till date. The Accountant General then computed the monetary value of the increment bar to be effected from 01.07.2006 to 31.06.2007 (the actual currency period of the penalty) at Rs.5016/- (the excess pay and allowances drawn by him during the currency period) and directed the applicant to refund the amount which was refunded only on 12.03.2021.
15. After the copy of the Annexure A13 report of the Government of Kerala and the Explanatory Note was received by him through RTI Application, the applicant submits that he correctly apprehended going by the tenor of the same that he would once again be excluded from the Select List of officers for promotion to IPS for the year 2019 and 2020, for the reason that he would be again found 'unfit', due to the comments of the State Government in the report and Explanatory Note. He then gave a representation dated 14.08.2022 directly to the UPSC, which is produced at Annexure A14. His position throughout was that the currency of his penalty cannot be extended or taken up to 12.03.2021. He also approached this Tribunal and the first and second interim orders, referred to earlier, were passed by the Tribunal in this O.A No.180/527/2021 23 connection. However, even after these interim orders were passed (details of which are not being repeated here once again) the final Annexure A15 notification dated 16.11.2022 was issued by the Ministry of Home Affairs, Government of India. The name of the applicant has not appeared in the Notification, either in the Select List for 2019 consisting of 8 officers or in the Select List of 2020 consisting of 14 officers. The applicant submits that this is so, in spite of the fact that separately, an 'integrity certificate' dated 14.10.2022 had been given by the Government of Kerala even before the Review Meeting of the Selection Committee held on 17.10.2022. A copy of the said Integrity Certificate is produced at Annexure A16. He points out that the Government of Kerala has indicated in the said Integrity Certificate that there was no penalty being undergone by him and that no disciplinary proceedings/criminal cases are pending against him. Further, he submits that his Annual Performance Appraisal Reports (APARs) for the five years preceding the Selection Committee Meeting would show that from 2015 to 2020 his grading has always been 'Very Good' and above.
16. However, in spite of all these positive aspects, including the interim orders of this Tribunal directing the respondents to properly assess the matter, the applicant submits that the Selection Committee Meetings held for the selection of officers for the Select Lists of 2019 and 2020 on 27.06.2022 and 17.10.2022 in its Matrix once again graded him 'unfit', as can be seen at Annexure A17. The same reason as the one earlier given in the Matrix for 2018, has been repeated. The minutes of the first Selection Committee Meeting held on 27.06.2022 have been produced at Annexure A18. Further, O.A No.180/527/2021 24 the minutes of Review Meeting held on 17.10.2022 after the interim order of this Tribunal was passed has also been produced at Annexure A19. The Minutes of these two Selection Committees reveal that he has not been considered to be placed in the Select List on the very same ground as mentioned earlier for the 2018 Select List that though his currency period of punishment was from 01.07.2006 to 30.06.2007, the amount had been refunded on 12.03.2021 only. In the Minutes of the Review Selection Committee Meeting at Annexure A19, the reasoning in his case has been clarified to some extent at point 10 as follows : -
"10.1 This Selection Committee again considered the order dated 10.12.2021 of the Hon'ble Tribunal and aforesaid Explanatory Note furnished by the State Government in pursuance of above interim order dated 02.09.2022 of the Hon'ble Tribunal. This Committee also considered the representation dated 14.08.2022 of Shri.Bastin Sabu C. The Committee noted that the penalty of "Increment bar for one year without cumulative effect" was imposed vide order dated 27.02.2006 which was cancelled on 24.10.2006 but again restored on 14.12.2017. The penalty was implemented only on 12.03.2021 when the monetary value of the penalty was paid by the officer. The Commission has prepared detailed Guidelines for assessing the suitability of State Service officers for induction into the All India Services which provides that "the currency of the Penalty is taken from the date from which it is imposed/effective to the date it ceases to be in force." The fact of the matter remains that Shri.Bastin Sabu C. was under
penalty till 12.03.2021. Accordingly, Shri.Bastin Sabu C. was again assessed overall as 'Unfit' for the Select List of 2019 due to above penalty.
10.2 In view of the above, and in compliance with the interim order dated 02.09.2022 of the Hon'ble Tribunal in OA No.527/2021, the Committee decided to keep one vacancy from the year 2019 unfilled until final disposal of O.A. No.527 /2021 filed by Shri.Bastin Sabu C. and to proceed with filling up the remaining vacancies of 2019 and 2020 i.e., 08 (eight) and 14 (fourteen) respectively."
(Emphasis added) O.A No.180/527/2021 25
17. The applicant, therefore, has sought the following reliefs in the O.A : -
"(i) Declare that the applicant is eligible for consideration for selection and appointment to the Indian Police Service from 2018 notwithstanding the imposition of the punishment for the period 2006-2007 as per Annexure A1.
(ii) Set aside the assessment of the Applicant
grading as Unfit for the period 2014 to 2018 in Annexure
A10 and Annexure A11.
(iii) Direct the respondents 1 to 3 to consider the
applicant for selection and appointment to Indian Police Service (Appointment by Promotion) for the year 2019, onwards.
(iv) Issue such other appropriate direction or order
this Tribunal may deem fit and order in the interest of
justice.
(v) To call for the records leading to Annexures
A15 select list and quash the same to the extent it
excludes the applicant,
(vi) To quash Annexures A17, A18 and A19 to the
extent of assessment made therein in respect of the
applicant as being "unfit" for appointment by promotion to Indian Police Service as against vacancies of 2019 and 2020 for the reason that "penalty of increment bar for one vear without cumulative effect was imposed on 27.2.2006 but was not implemented then. However, the amount to be deducted for the above period was calculated as Rs.5016/- which was paid by the officer on 12.3.2021".
(vii) To declare that applicant is eligible and Fit for inclusion in Annexure A15 select list of members of the State Police Service selected for promotion to Indian Police Service of Kerala Cadre against the vacancies of 2019 and 2020, and further to direct the respondents 1 to 3 to issue orders appointing the applicant to the Indian Police Service in preference to others ranking below him in Annexure A15.
O.A No.180/527/2021 26
(viii) To direct respondents 4 and 5 to issue orders posting the applicant ahead of his juniors at Annexure A15 with all consequential benefits including arrears of pay and allowances with interest at 12% per annum;
(ix) To grant the costs of this Original Application."
18. From the description of developments in this matter before this Tribunal it is clear that the crux of the matter as had been indicated earlier is whether the respondents position that the currency of the penalty has to be taken to be in effect beyond 30.06.2007 right up to 12.03.2021 thereby, affecting the Selections being conducted in 2021-22 for the Select List of IPS for the years 2018, 2019 and 2020 can be justified or not? The applicant's position is that the currency of punishment in his case is being taken into being in effect much beyond the period that it should have been taken and it has affected his fitness for selection to IPS by Promotion. His submission is that the effective/currency period of the penalty should be undisputedly declared to be between 01.07.2006 to 30.06.2007. Further, any the failure to withhold payment of increment or deduct the said amount by the Government should only reflect on them. The actual period of penalty being between 01.07.2006 to 30.06.2007 only, any payment deducted or refunded from the applicant's salary towards excess pay and allowance, drawn during the period of penalty can only be, at best, termed as a "liability" being met by him later. This cannot be taken as the continuation of the penalty. Nor does it debar the applicant from selection to the IPS by promotion. This is buttressed by the fact that even after the period of penalty of increment bar from 01.07.2006 to 30.06.2007 had been not imposed or deducted, the applicant was still promoted right up to O.A No.180/527/2021 27 the level of Dy. SP on 14.08.2008 by the State Government. The attempt to project the currency of penalty of increment bar for one year without cumulative effect as per order dated 27.02.2006 spilling over upto 12.03.2021 can thus only be termed as 'bad for the vice of malice, both factual and legal'. Any failure in this regard stops at the door of the State Government.
19. Soon after filing the amended OA, the applicant filed a series of M.As containing supplementary notes, and additional documents to substantiate his position. Before we consider the submissions of the respondents, it will be in the fitness of things to bring out the contentions in these M.As in broad terms. Annexure A20 is a copy of a Memorandum issued by the State Government of Kerala dated 13.10.1961 furnished by the applicant. He drew attention to the position that this Memorandum provides that, in case of a person whose increments have been barred according to the Kerala Civil Services (Classification, Control and Appeal) Rules, 1957 and who is promoted during the period of penalty, the punishment of bar on increment becomes ineffective after such promotion. It is submitted that by virtue of this Memorandum at Annexure A20 as also by the Rule 11(3) of Kerala Civil Services (Classification, Control & Appeal) Rules, the effect of non-implementation of withholding of increments at the appropriate time, would amount to nothing more than 'recovery' of the monetary value equivalent by withholding of deduction from the pay of the officer and nothing more. In short, as was indicated earlier, not withholding or deducting or remitting the due increment at the appropriate time cannot run as a 'penalty', but can be taken only as a 'liability' to be met. It is also pointed out in this connection that in the O.A No.180/527/2021 28 Annexure A13 documents, the actual currency of the period had been shown by the State Government in its report submitted to the UPSC as obtaining from 01.07.2006 to 30.06.2007 only. In addition, the applicant has produced, at Annexures A21 to A33, in a rejoinder to the reply affidavit filed by the UPSC, copies of his ACRs for the period from 01.01.2015 to 31.12.2020. These ACRs he contends would reveal that he has been graded at 'Very Good' and above in all the 5 relevant years, i.e., from 2015 to 2020. In effect therefore the applicant submits that the Selection Committee has taken into consideration irrelevant issues while assessing his performance for the relevant period for selection. This has resulted in gross arbitrariness in grading him as 'unfit' for selection to IPS for 2018, 2019 and 2020. Thus, he submits that this establishes a clear case of legal malafide and bias, that there has been a total lack of exercise of proper and lawful discretion resulting in an arbitrary exercise of power based on extraneous considerations, requiring judicial review.
20. Besides the above considerations, it is also submitted by the applicant that there has been a violation of the Guidelines framed by the UPSC which are crucial for selection in such cases. It is submitted that Clause 3.1 of the Guidelines issued by the UPSC for categorisation of State Civil/Police/Forest Service officers and regarding preparation of a list of suitable officers by the Selection Committee for promotion to the Indian Administrative Service/Indian Police Service/Indian Forest Service in terms of Regulation 5(4) and 5(5) of the IPS Promotion Regulation, 1955 provides that regarding the span/scope of assessment, the Selection Committee need only to go O.A No.180/527/2021 29 through service records of each eligible officer with special reference to the performance of the Officer during the last five years including the vacancy year, and that after deliberation, it will record the assessment of the Committee in the Assessment Sheet comprising the Assessment Matrix. It is contended that the procedure for Assessment and classification requires that the Committee go through the records of eligible officers and make its assessment after deliberating on the quality of officer as indicated in the various columns by the Reporting/Reviewing Officer/Accepting Authority in ACRs for different years. Hence, what is important to be looked into by the Selection Committee are the service records of the officers concerned, with special reference to their performance during the last five years including the vacancy year. However, in his case something which occurred 12 years before the Selection Committee Meeting for the particular Select Year of 2018 has been considered though it should have no relevance for overall relative assessment and grading. Further, it is submitted that Clause 4.7 of the Guidelines has been misinterpreted by the Selection Committee to his disadvantage. Clause 4.7 of the UPSC Guidelines states that, in the case of other penalties other than censure, the currency of penalty is taken from the date from which it is imposed till the date it ceases to be in force. It is submitted by the applicant that, going by this Guidelines, the date from which the minor penalty of one increment bar that was imposed/effective as per Annexure A1 dated 27.02.2006 was 01.07.2006 and that it had ceased to be in force on 30.06.2007. Increments every year being reckoned in the month of July, there is no room for doubt that the effectiveness of the punishment O.A No.180/527/2021 30 imposed as per Annexure A1 was for barring the increment due on 01.07.2006 and thus its currency period can only be from 01.07.2006 to 30.06.2007 and not beyond. In terms of the language used in Clause 4.7.1 of UPSC's Guidelines, an officer can be graded "unfit" only if currency of the penalty 'flows' into the Selection Committee Meeting year and only then can the Officer be graded 'unfit' for the Select Lists being prepared.
21. The applicant submits that Clause 4.7.1(a) as well as 4.7.2(a) as well as clause 4.7.1(b) of the Guidelines issued by the UPSC state that though the currency/effect of the penalty may have lapsed before the SCM year, if it still has 'implications' on any of the years in the Assessment Matrix, the Committee should categorise the Officer as 'Unfit' for the relevant years in the Assessment Matrix, when the penalty was current. Thereafter, the Overall Assessment of the officer may be made as per the procedure given in Section B.3 of the Guidelines. It is contended that this particular portion of the Guidelines at Clause 4.7.1(b) and 4.7.2(b) or whichever is applicable to the applicant cannot be taken up by the respondents as to be against him. If it is done, the same is a totally unfounded as an interpretation of the said Clause in the Commission's guidelines meant to cover such cases. In this connection, the applicant also brings to notice paragraph 51 of the Manual for Disciplinary Proceedings for Kerala Government servants, as he was under the State Government service at the relevant time. This stipulates that a punishment should take effect from the date of receipt of the order by the individual affected. Besides this, he has also produced at Annexures A34 to A39 various copies of extracts of Kerala Civil Services (Classification, Control and O.A No.180/527/2021 31 Appeal) Rules, 1960, Manual for Disciplinary Proceedings in respect of Government Servants under the Kerala State Service, Circular No.71 dated 27.08.1990 issued by the Accountant General, Kerala, as well as DoPT OM's dated 18.06.2019 and 19.12.2022 to make the point that the respondents cannot take a penalty imposed much earlier as having implications on the assessment done in the Assessment Matrix, under Clause 4.7.1(b) and 4.7.2(b) of the Guidelines for Selection to the IPS. It is contended that Rule 11(1)(iii) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 read with paragraphs 47 and 50 the Manual for Disciplinary Proceedings would throw light on the effectiveness of punishment of increment bar in respect of Government Servants under the Government of Kerala. The Rule 11(1)(iii) of KCS(CCA) Rules provides that the penalty of withholding of increments or promotion is temporarily for a specified period and is not to operate indefinitely. Further, Rule 11 (3) KCS (CCA) Rules provides for the consequences of order of withholding of increments not being able to be given effect is only to recover the monetary value equivalent to the amount of increments withheld and nothing more. Thus, even if an order of withholding of increments for a specified period is not able to be given effect to, the same will not have the consequence of being treated as a penalty later. Instead, it will only be treated as a liability to be recovered. It does not say anything more about the penalty being current and alive till the date of recovery. Thus, in effect, if an order of withholding of increment is passed for a specified period and is not given effect to, the same will not have any other future consequences of being treated as a penalty but is only as a liability to recover.
O.A No.180/527/2021 32
22. It is reiterated that the Memorandum dated 13.10.1961 issued by the Government of Kerala, produced at Annexure A20 referred to earlier only provides that in the case of a person whose increments have been barred according to Kerala Civil Services (Classification, Control & Appeal) Rules and who has been promoted during the period of penalty, the punishment of a bar on increment becomes ineffective after such promotion. It is reiterated that as the applicant was promoted right upto the level of Dy.SP after the currency/effective period of minor penalty of one increment bar without cumulative effect, he cannot, thus, be deprived further for appointment by promotion to Indian Police Service against the vacancies of 2019 and 2020. In addition, the applicant has produced at Annexure A35 the Manual of Disciplinary Proceedings in respect of Government servants in Kerala, wherein, at Paragraph 47(1), it is clearly indicated that, withholding of increment is a penalty distinct from that of withholding of promotion and one is not affected by the other. Further at Paragraph 7, it is indicated that neither temporary withholding of increments nor temporary withholding of promotion can be awarded for more than three years. In Paragraph 51 it has been indicated that a punishment shall take effect from the date of receipt of the order by the individual affected unless another date is specified in the order. The applicant submits that all these provisions read together indicate that the currency of penalty in his case cannot thus be taken to be effective, right up till the payment of his dues on 12.03.2021. In addition to all these documents, he has produced, at Annexure A36, a circular No. 71 dated 27.08.1990 issued by the Accountant General (A&E), Kerala. This circular in fact clarifies the O.A No.180/527/2021 33 position regarding imposition of a punishment bar of increment after a promotion is granted. Clause 2(5) of the said circular produced at Annexure A36 clarifies that an order inflicting the punishment of increment bar is applicable only in respect of the time-scale of the post held by the officer on the date of issue of the orders. The order has no effect on the higher or lower post to which he may be promoted or reverted. Therefore, the increments due in the higher or lower post can be authorised if otherwise admissible.
23. In addition to the above circulars/memos/instructions, the applicant submits that in case the respondents take a stand that these, being State Government orders or instructions, are not applicable in a case where the issue is for being considered for promotion to an All India Services, two Office Memorandums (O.Ms) issued by the Department of Personnel & Training (DoP&T) at Annexure A37 and A38 can also be taken into account. The O.M at Annexure A37 dated 18.06.2019 relates to the regulation of pay on imposition of a penalty under CCS (CCA) Rules, 1965. It mentions at paragraph 4(b) under the heading "Withholding of increment {Rule 11(iv)} of the Minor Penalty under the CCS(CCA) Rules 1965" that, on imposition of penalty of withholding of increment, the next increment due after the date of imposition of the penalty would be withheld. In case where penalty of withholding of multiple increments is imposed, increments due on 1st January or 1st July, as the case may be, in the subsequent years would similarly be withheld. The increment would then be restored at the end of the period for which the penalty is imposed. The increments will be given on notional basis without arrears and without affecting date of next increment on restoration of O.A No.180/527/2021 34 increment. In addition, under the case histories which are indicated under the DoP&T OM at Annexure A37 in relation to withholding of increment, the Case No.3 & No.4 (internal page 8 and 9 of the O.M) makes it clear from the examples provided in relation to withholding of increment of Government Servants that the currency period only extends to the specific period mentioned in the penalty order and not beyond that. For example in case No.3, it is clear that the currency period would only be between 13.08.2017 to 31.12.2019. Similarly, in case No.4 the currency period is only from 13.08.2017 to 30.06.2018. Similarly, in the OM of the DoP&T dated 19.12.2022, produced at Annexure A38, on the subject of clarification/interpretation of penalties under CCS(CCA) Rules, 1965, it is given in the case histories produced under the Circular at Case History No.3 and No.4 that the currency period is limited to the period of penalty and not beyond that. In other words, the applicant contends that what can drawn from these O.M's is that, even without specifically indicating it, the examples quoted in the O.Ms and Circulars as well as in the interpretation of the penalties clarify how the currency period of the penalty of withholding of increment is to be reckoned. It has been clarified that the relevant period during which the said penalty will have implications, depending on the date of increment on 1st January or 1st July, will only be the period of the penalty and not beyond that.
24. In addition to the above O.M's/documents produced at Annexure A34 to A38 along with the M.A.No.180/285/2023, the applicant has also brought to our notice a copy of the well known Guidelines of the UPSC which had O.A No.180/527/2021 35 been referred to earlier. These are the Guidelines/procedures for categorisation of State Civil/Police/Forest Service officers and preparation of a list of suitable officers by the Selection Committee of the UPSC for promotion to the Indian Administrative Services/Indian Police Service/Indian Forest Service from the State Services in terms of Regulation 5(4) and 5(5) of the Promotion Regulations of 1955. As per Clause 3.1 of these Guidelines, the Selection Committee need only to go through service records of each eligible officer with special reference to the performance of the Officer during the last five years including the vacancy year, and after deliberation will record the assessment of the Committee in the Assessment Sheet comprising the Assessment Matrix and the column of overall assessment of the officers. Thus, it is reiterated by the learned counsel for the applicant that the Selection Committee should only go through the records of each eligible officer of the last five years, including the vacancy year, and then record the assessment in the Assessment Matrix. Hence, this underlies the point that what is important to be looked at by the Selection Committee are mainly the service records of the officers concerned, with special reference to their performance during the previous five years including the vacancy year. As such, a minor penalty imposed much beyond the 5 years period from the relevant vacancy year ie., 12 years before the Select Year being considered in the Selection Committee Meeting should not have been given relevance in the overall relative assessment and grading. Even otherwise, as has been brought out earlier, it is further contended that the Clause 4.7 of the Guidelines has been misinterpreted to the disadvantage of the applicant. These Guidelines O.A No.180/527/2021 36 only provide that the currency of penalty is to be taken from the date from which it is imposed till the date it ceases to be in force. Going by the provisions in all the State as well as in the Central Government (DoP&T) Circulars and O.M's, it is again contended that the date on which the minor penalty of one increment bar that was imposed as per Annexure A1 dated 27.02.2006 would be effective is 01.07.2006 and that it ceases to be in force on 30.06.2007. The increments being reckoned every year in the month of July, there is no room for doubt that effectiveness of the punishment imposed as per Annexure A1 lies in barring the increment due on 01.07.2006 and thus the currency period is from 01.07.2006 to 30.06.2007. It is also contended, therefore, that the currency of penalty, as provided in Clause 4.7.1(a) of the Guidelines, should not be taken as flowing into the Selection Committee Meeting year in the present case. Clause 4.7.1(b) or 4.7.2(b) of the Guidelines cannot be used by the respondents to contend that, even though the currency or the effect of the penalty has lapsed much before the Selection Committee Meeting year, since the amount overdrawn during the period of penalty was remitted back only on 12.03.2021 implies that the penalty was still having its impact on assessment years in between as well. This is unfounded and incorrect interpretation of the Guidelines to the detriment of the applicant herein since the said clause in the Guidelines is provided only to cover such cases in which though the actual currency of penalty may be over, the implications of the same may remain depending on the date of increment drawn by the person concerned.
O.A No.180/527/2021 37
25. Further to the above and also as pointed out earlier, it is submitted that it is pertinent to note that Paragraph 51 of the Manual for Disciplinary Proceedings for Kerala employees clearly stipulates that a punishment shall take effect from the date of receipt of the order by the individual affected. In addition, the instructions contained in the OM's dated 18.06.2019 issued by the DoP&T on regulation of pay on imposition of various penalties including that of increment bar stipulate that the actual currency of barring one increment imposed as per Annexure A1 order dated 27.02.2006 can only be counted from the date of increment due on 01.07.2006 to the end of the one year period on 30.06.2007. It cannot extend to any date thereafter, much less right upto the assessment years in question. Further, even under Clause 4.4 (d) of the Guidelines for the Selection Committee it is stated that an officer can be categorised as 'unfit' only if his reports are lacking any positive merit or if his performance is not generally satisfactory or if there are entries in some of the latest ACRs which adversely reflect on his suitability for promotion or if the ACRs contain orders of penalty which in the opinion of the Selection Committee would render the officer unsuitable for promotion. It is contended by learned counsel for the applicant that none of these elements are present in the case of the applicant. Hence the non-consideration of the cases of the applicant by the Selection Committee and giving him a grading as 'unfit' can only be said to be due to improper consideration. In effect, therefore, it is contended that any of the documents or circulars provided in Annexures A34 to A39 produced along with MAs' establish clearly that there has not been proper consideration of the O.A No.180/527/2021 38 applicant's candidature in the right perspective, taking into account the relevant Rules as well as the directions issued by this Tribunal in its interim orders.
26. The learned counsel for the applicant further contends that in addition to the support provided by the Circulars, Acts and the Rules of the Government of Kerala as well as that of the DoP&T, there are more fundamental legal issues. She relies on the 'Washed off theory' which provides that there cannot be a further bar for promotion to an employee, who is promoted once after imposition of a penalty. She contends that it is to be taken into account that the applicant had been given two further promotions after the imposition of penalty. Hence, there cannot be denial for his induction into the IPS after the penalty of barring one increment without cumulative effect was passed and he was promoted as Dy.SP and SP (Non IPS). She brings to our notice the judgments in Rajasthan S.R.T.C and others v Babu Lal Jangir [AIR 2014 SC 142], Pyare Mohan Lal v State of Jharkhand and Ors.[AIR 2010 SC 3753], Arun Kumar Gupta v State of Jharkhand and Ors [AIR 2020 SC 1175] and State of Punjab v Dewan Chuni Lal [(1970) 1 SCC 479] in this connection. Further, she also submits that a combined look at the Annexure A16 Integrity Certificate, which was forwarded by the respondent State Government even before the Review Meeting was held on 17.10.2022 and the Annexures A21 to A33, Annual Confidential Reports of the applicant, would lead to the inescapable conclusion that there can be no valid reason for assessing the applicant as 'unfit'. It is contended that the findings of the Selection Committee are thus vitiated on account of O.A No.180/527/2021 39 non-application of mind, despite the clear directions issued by the Tribunal and the forwarding of Annexure A16 clean Integrity Certificate by the Government of Kerala.
27. Thus, it is submitted that by no stretch of imagination can it be taken that the applicant was under a cloud of penalty right upto 12.03.2021, in light of the detailed considerations brought out above. It is clear from the points raised that the currency of any penalty for a particular period cannot keep spilling over to a period beyond for which it is imposed. It is submitted that it is also relevant that the applicant continued to get his annual increments immediately after the expiry of one year, from 27.02.2006 apart from grant of further promotions. Thus, the penalty had no effect on his career at any point of time. It is contended that it is only to defeat his claim that such reasons are being projected years later when he was due for consideration of conferment of IPS. Thus, no factual or legal justification exists for grading the applicant as 'unfit' for inclusion in the Select Lists of 2019 and 2020.
28. In addition, reverting to other legal precedents, learned counsel for the applicant submits that an averment to the effect that an employee has only the right to be considered for promotion and that he cannot claim promotion by right is not relevant in these facts and circumstances, in as much, it is also trite that every exercise of power by an authority has to be fair and reasonable. Fairness in working procedure has been emphasised by the Hon'ble Supreme Court time and again. It has been emphasised particularly that state functionaries have to act fairly and reasonably. When the Indian Police Service (Appointment by Promotion) Regulations, 1955 as also the Guidelines O.A No.180/527/2021 40 framed by the Union Public Service Commission clearly delineate the procedure to be followed, which includes an assessment of ACRs for the relevant period as well as the Integrity Certificate furnished by the State Government, the Selection Committee should have properly assessed the applicant's case on the documents provided at Annexure A16 and Annexures A21 to A33.
29. Learned counsel for the applicant contends in response to the argument made by the 6th respondent, who is inter-se one position above the applicant in the Zone of Consideration, that if the Selection Committee had done its job properly it is not beyond the realm of possibility that the applicant may have still been graded above the 6th respondent and thus, seniority has no role to play in the same. On the other hand she contends that the Selection Committee failed to assess all relevant aspects of the case in the proper perspective. This is further evidenced from the fact that while the applicant was graded 'unfit' for totally unfounded reasons, one Sri. Abdul Rasheed N earlier assessed as 'unfit' for the year 2019 had been given a sudden improvement in the classification/overall rating to 'Very Good' for the Select List of 2020. Thus, it cannot be ruled out that there are errors in the very exercise of power by the Selection Committee. It is submitted that the recording of minutes of the Selection Committee Meeting by the Committee in a 'matter of fact' manner also reflects very little regard for the directions issued by this Tribunal, apart from the fact that it shows no evidence of any objective consideration of relevant materials to assess the applicant's grading. Thus, there is a clear case of 'legal malice' which is fit warranting judicial review as provided by R.S O.A No.180/527/2021 41 Dass v Union of India [AIR 1987 SC 593], when the power exercised by the Selection Committee is unreasonable, arbitrary, vitiated by legal malice and bias, thus resulting in infraction of Articles 14 and 16 of the Constitution of India. As per R.S Dass (supra) when power is vested in a high authority, there is also a presumption that the same would be exercised in a reasonable manner and if the selection is made on extraneous considerations in an arbitrary manner the Courts have ample power to strike down the same and that is an adequate safeguard against the arbitrary exercise of power. Hence, it is not correct that the selections made by the Selection Committee cannot be looked into by Courts. Besides relying on R.S Dass (supra), learned counsel also drew attention to Mohd. Mustafa v Union of India [(2022) 1 SCC 294], Harshit Agarwal and Ors v Union of India and Ors.[AIR 2021 SC 2506] and Union of India and Ors v Sangram Keshari Nayak [(2007) 6 SCC 704]. In relation to the point of 'malice in law' Ramjit Singh Kardam and Ors v Sanjeev Kumar and Ors[AIR 2020 SC 2060], Smt. S. R. Venkataraman v Union of India and Anr. [AIR 1979 SC 49] are relevant. Further, on the presumption that persons occupying higher post, would only take valid decisions, Brigadier Nalin Kumar Bhatia v Union of India and Ors. [(2020) 4 SCC 78] has directions and observations.
30. The response of the main respondents ie., Respondents No.2 & 3, the Union Public Service Commission to the above detailed considerations including legal precedents has been by way of two reply statements. The first one was filed on 13.12.2021 before the amended O.A was filed, just after our interim order on 10.12.2021 was passed and thus it is likely that the reply O.A No.180/527/2021 42 statement was filed without considering the import of our interim order and our detailed considerations therein. In this reply statement dated 13.12.2021, which as stated was filed in response to the original O.A filed and not in response to the amended O.A., the respondent, Union Public Service Commission, only brought to notice the basic facts only governing selections/promotions etc., to the All India Services. The reply detailed the rules governing the process of promotion to the IPS ie., the IPS (Appointment by Promotion) Regulations 1955 and drew attention only to the fact that these Regulations provide making the Chairman/Member of the UPSC to preside over the Selection Committee for Promotion to the IPS. It was brought out that under Rule 5(1) of the Regulations, the number of vacancies against which selection is to be made for a particular Select List year for promotion to the IPS of a State Cadre is to be determined by the Government of India, Ministry of Home Affairs in consultation with the State Government concerned. Thereafter, it is only by the provisions of Regulation 5(4) and 5(5) that the Committee classifies eligible State Police Service Officers included in the Zone of Consideration as 'Outstanding', 'Very Good', 'Good' or 'Unfit' and prepares the list of officers. Further, the reply statement referred to the Guidelines of the Commission at paragraph 4.7.1. The only response to the detailed contentions made by the applicant was that, as per the Guidelines of the Commission as mentioned at paragraph 4.1, the currency of the penalty was to be taken as over only on 12.03.2021. The currency of the penalty has been taken from the date from which it is imposed and is to be taken as effective till the date it ceased to be in force. Accordingly, the applicant had O.A No.180/527/2021 43 been assessed overall as 'unfit' on the basis of the Assessment Matrix for the years from 2014 to 2018. He was thus not included in the Select List of 2018 for promotion to IPS of Kerala Cadre. His assessment for the previous 5 years was declared as 'unfit' for each of the years from 2014 to 2018 and his overall relative assessment was also, therefore, 'unfit' because of the pendency of his penalty during those years. The Committee had considered all relevant aspects including consideration and appreciation for the meritorious work done by the officer but it cannot ignore an order awarding penalty on the officer as per the Guidelines. It is submitted by the Respondent 2 & 3, UPSC, that this procedure is being adopted by the Selection Committee in all cases and is uniformly applied across all the States/UTs of the country. Further, it is also brought to notice that in the matter of Union of India etc v K.V.Janakiraman Etc., [(1991) 4 SCC 109] the Hon'ble Supreme Court had held that an employee found guilty of misconduct cannot be placed on par with other employees and his case has to be treated differently.
31. In addition to the above statement, the Respondents No.2 & 3, UPSC, later filed an affidavit on 26.12.2022 soon after this Tribunal on 14.12.2022 had passed an order to furnish the Minutes of the Selection Committee Meetings held on 17.10.2022 and 27.06.2022 through an affidavit. In this affidavit it was again brought to the notice of this Tribunal that the provisions of para 4.7 and 4.7.1 of the Guidelines, which have been discussed in detail earlier, are relevant in the matter. In this context, it was submitted in the affidavit that in pursuance of the order of this Tribunal in the interim order dated 10.12.2021 the Selection Committee had considered the Explanatory O.A No.180/527/2021 44 Note sent with the proposal dated 16.12.2021, explaining the chronological order of events which had led to implementation of the penalty of increment bar for one year without cumulative effect by refund of Rs.5016/- on 12.03.2021. After going through the explanation and other relevant details, the reasoning of the Commission in rejecting the case of the applicant is clarified at paragraph 6.1 of the affidavit as follows : -
"6.1. It is humbly submitted that the name of the Applicant, Shri.Bastin Sabu figured at SI.No. 1 in the eligibility lists of 2019 and 2020 respectively. A Penalty of increment bar of one year without cumulative effect was intimated to be imposed upon the Applicant on 27.02.2006 but was not implemented then. The amount to be deducted for the above period was calculated as Rs.5016/- and was paid by the officer on 12.03.2021 only. As such, the currency of penalty was over on 12.03.2021. The Guidelines of the Commission mentioned at paras 3.1, 3.2 and 3.3 above, provides that "the currency of the Penalty is taken from the date from which it is imposed/effective to the date it ceases to be in force." While assessing the suitability of the Applicant for promotion to the IPS, the earlier Committee that met on 27.06.2022 considered the above interim order dated 10.12.2021 of this Hon'ble Tribunal in OA No.527/2021 and the Explanatory Note furnished by the State Government and in terms of the said Guidelines, the said Committee assessed the Applicant as 'Unfit for the Select Lists of 2019 and 2020 due to above penalty, A copy of Minutes of the Selection Committee held on 27.06.2022 is annexed herewith and marked as Annexure R2 (a)."
(emphasis added)
32. Later after the second interim order dated 02.09.2022 was passed by this Tribunal, the Selection Committee once again met on 17.10.2022 to consider the case of the applicant. It again took into consideration the Explanatory Note furnished by the State Government pursuant to interim order O.A No.180/527/2021 45 dated 10.12.2021. One vacancy had already been kept unfilled in the meeting held earlier and the Selection Committee had prepared the Select List of 2019 against 8 vacancies instead of 9. Again it is recorded as under paragraph 7.2 that the Committee noted that the currency of penalty of "Increment bar for one year without cumulative effect" imposed vide order dated 27.02.2006, which was cancelled on 24.10.2006 and again restored on 14.12.2017 was over only on 12.03.2021, when the monetary value of the penalty was paid by the officer. For assessing the suitability of such officers, who have been found guilty in the departmental proceedings and penalty has been imposed upon him thereafter, the Commission has prepared detailed Guidelines which provides that "the currency of the Penalty is taken from the date from which it is imposed/effective to the date it ceases to be in force,". The fact of the matter remains that Shri.Bastin Sabu C. was under penalty till 12.03.2021. Accordingly, after considering the above facts, the Selection Committee which met on 17.10.2022 assessed the Applicant, Shri.Bastin Sabu C. overall as 'Unfit' for the Select Lists of 2019 and 2020 due to above penalty.
33. The respondents also furnished a copy of the Minutes of the Selection Committee held on 17.10.2022 at Annexure R2 (b) along with the affidavit. It was submitted that the Select Lists prepared by the Selection Committee on 17.10.2022 were then approved by the Commission on 11.11.2022. It was then acted upon by the Ministry of Home Affairs, Government of India who issued the Notification dated 16.11.2022, a copy of which is produced as Annexure R2 (c). In addition, the affidavit filed by the Respondent No.2 & 3, UPSC also once again brought out that in the case of Union of India etc v K. O.A No.180/527/2021 46 V. JanakiramanEtc (supra) the Hon'ble Supreme Court had held that an employee found guilty of misconduct cannot be placed on par with other employees and his case has to be treated differently. It drew attention to the relevant portions of the judgment as under: -
"5. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is therefore, no discrimination when in the matter of promotion, he is treated differently.
6. The least that is expected of any administration is that it does not reward an employee' with promotion retrospectively from a date when for his conduct before that date he is penalised in presenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct.
7. While considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it' is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion."
O.A No.180/527/2021 47
34. The affidavit filed by Respondents 2 & 3, UPSC then ended with the statement that the Selection Committee which had met on 27.06.2022 and 17.10.2022 had duly considered the Explanatory Note of the State Government furnished in pursuant to the interim order dated 10.12.2021. The Selection Committee which met on 17.10.2022 had also considered the representation dated 14.08.2022 of the applicant as directed by this Tribunal vide interim order dated 02.09.2022. As such, it is submitted that the Respondents 2 & 3, the UPSC had fully complied with the directions in the interim order of this Tribunal dated 02.09.2022.
35. We have carefully gone through the above reply and affidavit filed by the Commission. It is quite obvious that the main respondents in this matter i.e., UPSC, felt it unnecessary to specifically controvert any of the detailed points which were brought out by the applicant after the amended O.A was filed or in the Misc. Applications which were submitted by him later. No other applications or affidavits were filed by the main respondents to counter the same. The case was heard on a number of occasions, even after the last M.A No.180/285/2023 was submitted on 20.03.2023 by the applicant where the crucial Annexures A34-A39 were attached. As noted earlier, these documents carried provisions of Kerala State Rules and DoP&T O.M's used by the applicant to contradict the contentions of the respondents in relation to the actual period of operation of the penalty and whether it could be taken as to continue beyond 30.06.2007. There were other contentions made that the Guidelines of the Commission have not been followed by the Selection Committee. As stated these points were put forth by the applicant in the O.A No.180/527/2021 48 Miscellaneous Applications filed by him as also in the amended O.A and other affidavits. However, we note that these points have not been specifically countered. We, therefore, will go by whatever contentions have been made by the respondents in their reply statement and the affidavit filed by them.
36. In regard to the position taken by the 4th and 5th respondents, the State Government, we note that learned Sr. GP representing the State Government had filed two statements. The State Government also has not sought to controvert the contentions made by the applicant. In the first reply statement filed on 23.11.2021 by the State Government, before the impugned order was passed, it was stated that the factual aspects clarified at Annexures A1 to A7 show how the punishment was implemented. Further, it was indicated that the currency of the penalty was over only on 12.03.2021. In addition, the preparation of a Select List is done by the Selection Committee constituted by the UPSC as their responsibility. Later, in another additional reply statement, which was filed after some insistence by this Tribunal on 06.02.2023, no justification regarding the time gaps in the action taken by the State Government vis-a-vis the applicant in terms of 'reimposing' the penalty at Annexure A1 or the delay after the Annexure A6 order was issued in 2017 were substantially explained. A few details about the State Government's position had to be gleaned by us from the Explanatory Note furnished to the UPSC in relation to these delays at Annexure A13. The Note stated that the Annexure A6 order dated 14.12.2017 had ordered restoration of punishment originally awarded. The next step after this was to give effect to the increment bar with effect from the date of next increment, i.e., 01.07.2006. However, the O.A No.180/527/2021 49 Explanatory Note goes on to say blandly without reasons that "however, this was not done". Hence no reasons are provided for what can be termed as the 'second' delay in terms of imposing the apparent penalty on the applicant! It is only indicated in the Note that the 'lapse' was not noticed for almost three years till the time of submission of proposal to the UPSC for 2018 selection. Only when details were sought from the State Police Chief for preparing the Annexure 4.2 Penalty Statement, was it realised that the penalty was not implemented till date. The only other additional information that has been produced in the additional reply statement filed by the State Government is that the validity of the Select Lists for the year 2019 and 2020, which had been notified on 16.11.2022, has since lapsed in terms of the Clause 7(4) of the Indian Police Service (Appointment by Promotion) Regulations, 1955. This Clause stipulates that the Select List shall remain in force till the 31st day of December of the year in which the meeting of the Selection Committee is 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. It is submitted that since the 2nd respondent, UPSC had approved the Select Lists on 11.11.2022, hence, the validity of the Select Lists for the years 2019 and 2020 had expired on 09.01.2023 as per Clause 7(4). It was further submitted in the additional reply statement of the State Government that since the validity of the Select Lists for the years 2019 and 2020 now stand expired, one vacancy in 2019 that was set aside by the orders of this Tribunal dated 02.09.2022 was, therefore, required to be carried O.A No.180/527/2021 50 forward to promotion quota vacancies of the Year 2021, which is at present
14. It was submitted that the State Government can only initiate steps for the submission of the proposal for the conduct of the Selection Committee Meeting for finalizing the vacancies for Select List Year 2021 to the 2nd respondent UPSC only after the re-determination of the promotion quota vacancy for 2021 by the Ministry of Home Affairs, Government of India.
37. We presume that the intention behind filing these additional details beyond the contentions made in this O.A and other M.As in the additional reply statement is only to bring on record that the State Government will not be responsible for any further delays in finalizing the promotions to the IPS for the vacancies of 2021! However, as noted, none of the contentions of the applicant are controverted even though it is stated that the respondents had filed a detailed reply statement on 15.03.2022 controverting the allegations made in the Original Application. No such reply is available to our notice in spite of these issues being brought out in the amended O.A as well as in the documents produced after the M.A.No.180/285/2023 was filed on 20.03.2023 by the applicant. Indeed, after this M.A was filed, this Tribunal had conducted as many as 5 hearings in quick succession; on 27.03.2023, 29.03.2023, 03.04.2023, 05.04.2023 and 06.04.2023. It may be noted, as was brought out earlier, that this M.A had made specific points in relation to the applicable Disciplinary and Appeal Rules of the State Government and its Manual of Disciplinary Proceedings. The sole contention taken is that the currency of penalty would last till the date it is imposed and the date it was imposed was 12.03.2021. Learned Sr. GP, Shri.Antony Mukkath only made O.A No.180/527/2021 51 the point in oral submissions that the Selection Committee for the IPS Appointment in the UPSC may go by different yardsticks in relation to its assessment before it does the selection and does not have to follow provisions given in the State Government rules when it does the selection.
38. Learned Nodal Counsel for UPSC Shri.Thomas Mathew Nellimoottil strongly objected during oral submissions to the consideration of the pleas of the applicant. He mentioned that the applicant should be questioned for not having brought to notice of the Hon'ble High Court the fact that his penalty at Annexure A1 had been cancelled by the Annexure A5 order of the Inspector General of Police, North Zone and that, therefore, there had been no penalty actually imposed on him. Learned Nodal Counsel brought to notice various judgments of the Hon'ble Supreme Court in relation to the powers of scrutiny of Courts and Tribunals over the selections made by the Selection Committee of the UPSC. He specifically brought to notice the judgment of Hon'ble Supreme Court in Union Public Service Commission v M. SathiyaPriya and Ors. [AIR 2018 SC 2790], wherein, it has been indicated that the relevant Regulations as well as the Guidelines of the UPSC have to be applied jointly at the time of making the Selection List. It was declared that these Regulations and Guidelines jointly prescribe adequate procedure and they form a complete code in themselves. Further, it was indicated therein at paragraph 15 of the judgment that the Selection Committee of the UPSC consists of experts in the field. It is presided over by the Chairman or a Member of the UPSC and is duly represented by the officers of the Central Government and the State Government, who have expertise in the matter. The O.A No.180/527/2021 52 Hon'ble Apex Court expressed its considered opinion that when a High- Level Committee or an expert body had considered the merit of each of the candidates, assessed the grading and considered their cases for promotion, it was not open to the CAT and the High Court to sit over the assessment made by the Selection Committee as an appellate authority. The question as to how the categories are assessed in light of the relevant records and as to what norms apply in making the assessment, is exclusively to be determined by the Selection Committee. Since the jurisdiction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the Courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. (Note : the emphasis is added by us here). The Apex Court had held that it is not the function of the Court to hear such matters before it, treating them as appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body, i.e., the Selection Committee and the Courts have very limited scope of judicial review in such matters.
39. The 6th respondent, Shri.Ajith V, through learned counsel Shri.A.Rajasimhan filed a reply statement on 06.02.2023. He submitted that he is senior to the applicant in this O.A and was eligible for promotion to the Indian Police Service in one of the 9 vacancies of 2019, in fact at SI.No.9 in the Annexure A15 notification of the Select List. However, he has been O.A No.180/527/2021 53 included in the Select List for 2020 and not in 2019 only due to the interim order of the Tribunal dated 02.09.2022, as per which one vacancy of 2019 was directed to be kept unfilled. He submits that he is aggrieved that the applicant had not bring to the notice of this Tribunal that, as per Ministry of Home Affairs letter dated 10.05.2022, the vacancies for the year 2019 were reduced from 10 to 9. What he submits in essence is that in any case even if the applicant had been selected, he would not have appeared in the Select List of 2019, as he (Respondent No.6) is at one place senior to the applicant. Thus, he should have been selected for that year as the Committee had assessed him 'Very Good' for the Selection for Promotion to the IPS in one of the 9 vacancies of 2019 and had found the applicant 'unfit' which is evident from the minutes of the Selection Committee dated 17.10.2022. Respondent No.6 submits that his exclusion from the 2019 list was only due to the misrepresentation made by the applicant in this O.A. Further, he submits that no person can be subjected to suffer on account of acts of Court; actus curiae neminem gravabit. Hence, it is just and reasonable that he should be placed in the Select List of 2019 and he prays for a vacation of the interim order and placing him in the unfilled vacancy of 2019.
40. We have outlined and considered all the contentions made by the counsel appearing for different sides, as is quite obvious in the above details. We have also indicated at different points in the narrative some of our own thoughts on different aspects of the matter. Our own three interim orders in the O.A passed on three different dates while hearing the O.A taken together also provide insights into our understanding of the issues at hand along with the O.A No.180/527/2021 54 relevant considerations. After a careful consideration and perusal of all the documents provided, we are of the opinion that though the matter relating to the appointment of the applicant to the IPS had been considered by the Selection Committee of the UPSC on three different occasions for the Select Lists of 2018, 2019 and 2020, it still in our view has unfortunately never been properly placed before the Committee or even if it was done, not appreciated by the Committee in the proper perspective. No indication to the contrary is available. We have to come to the conclusion that some legal malice is established by the acts of casualness with no proper attention being paid to the orders of this Tribunal. For example, it is not very clear to us after going through the extremely sketchy reply statement of the main respondents, UPSC, as to how they can still be of a firm conclusion that a penalty which was imposed in the year 2006 valid from July 1st 2006 up to 30th June 2007, can still be considered current upto 12.03.2021, on the ground that the applicant had not 'paid' the amount and it was only remitted on this date after it was reimposed on 2017. We note that this puts the entire onus of the imposition and collection of penalty on the applicant, without taking into consideration the singular lack of steps and delays on part of the State Government or the State Police Chief in this regard. Is it correct for a statutory body like the UPSC and its Selection Committee to take a purely technical position on the issue on the basis of the Guidelines (para 4 of the same) which does not contemplate the kind of situation which had occurred in the case of the applicant? Would it be right for the UPSC to take a position that they are not concerned at all by these aspects and take shelter under Guidelines, which O.A No.180/527/2021 55 only indicates that the currency of penalty is to be taken from the date it is imposed/effective to the date it ceases to be in force? Further, what is the meaning of the phrase 'ceases to be in force'? Our view is that a reasonable interpretation can only be that it can be effective till the date indicated in the penalty order. Whatever be the circumstances, it cannot be taken to be effective for years on end, especially as there was a clear lack of effort and mistakes on part of the State Government and State Police Chief in regard to the imposition of the penalty and even bringing the actual details to the knowledge of the Kerala High Court.
41. We note that the applicant had only made an application for correcting of the order dated 27.02.2017 at Annexure A4. In response, he got the Annexure A6 order. Further, even after Annexure A6 was passed in 2017, the actual follow up was done only later in 2021, when the proposal in his case was being prepared to be sent to UPSC. It was at that time the State Government suddenly found that the penalty amount was not recovered. No statement in explanation for this is made in the Explanatory Note, except a bare sentence that "however this was not done"!. We are disappointed that the UPSC failed to take note of this crucial fact in spite of our clear directions in our interim orders dated 10.12.2021, 02.09.2022 and 21.09.2022. These orders had directed the UPSC to go behind the apparent technical situation before deciding the matter. No details have been provided to this date either by the State Government or UPSC as to how they had taken follow up steps to take our orders in the right spirit. All that has been provided by way of explanation by the Commission is an exposition of the relevant Guidelines and O.A No.180/527/2021 56 Regulations about which we are all aware. This casualness surely cannot be accepted when an officer's selection/promotion is at stake. We are, therefore, constrained to strike down the finding of the applicant as 'unfit' for promotion into the IPS, as evidenced in the Selection Committee Meetings of 2018, 2019 and 2020 held on 24.06.2021, 27.06.2022 etc. as unacceptable. This finding is not in consonance with the mandate given to the Selection Committee in this regard. Even if it is not tainted by bias, it is definitely tainted by arbitrariness and casualness which is neither expected on part of the UPSC nor by a responsible authority like a State Government.
42. On the other hand, we are also convinced by the fact that the applicant has provided more than enough material to the contrary regarding treatment of his penalty in terms of the Rules, Provisions and Acts of the State Government, including the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, the Manual for Disciplinary Proceedings in respect of Government Servants under the Kerala State Service, as well as other Circulars of the Accountant General, Kerala. We are also strongly guided by the principles elucidated in the O.M's of the DoP&T, full details of which have been brought out earlier. From these and the discussions made above, we are of the firm view that the correct legal position that emerges is that the currency of penalty cannot keep stretching beyond the penalty period, in this case from 01.07.2006 to 30.06.2007 and if the penalty was not recovered, it remained only as a monetary liability recoverable from the applicant by due process of law by the Government. In other words, we fully accept the argument made by the applicant that what remained in his case as late as 2017 O.A No.180/527/2021 57 was not the currency of the penalty imposed on him, but only a 'monetary liability'. That monetary liability was voluntarily met by him by remitting the amount of Rs.5016/- on 12.03.2021. This correct legal position ought to have been placed by the Government of Kerala before the UPSC. However, it was not placed before the UPSC. Since the correct facts and the legal implications arising there from were not placed before the UPSC, it kept on insisting that the implication of the penalty keeps flowing right up to 2021, because it was not actually imposed in 2006/2007. We have already noted that this non implementation has to be largely blamed on the inaction by the respondents State Government/State Police Chief. Further, other relevant aspects in relation to the applicant's ACR's etc., also does not indicate that he was otherwise 'unfit'.
43. We also note that all things considered, even otherwise, the penalty was imposed for alleged 'misbehaviour' by the officer with a political party's agent. The incident does not appear in any way as something very major and it only involved imposition of a minor penalty that too by a Non Oral Enquiry when the officer was in the post of Circle Inspector. Granting that there was such a minor misdemeanour in 2006, can that be allowed to influence and infect a process of promotion into the IPS after more than 12-14 years? Was the misdemeanour so serious or major in order for such a drastic step to be taken? We do not find the Guidelines covering such aspects as to how the effect of a non implemented penalty flows right upto the Meeting Year of the Selection Committee. As we have repeatedly noted there are arguments to the contrary that have been brought forth by the applicant in terms of the Rules, O.A No.180/527/2021 58 not only of the State Government but the O.M's of DoP&T. Most importantly nothing has been controverted by the UPSC or the State Government. Hence, we do not agree with the interpretation made by the Selection Committee and it is liable to be interfered since, in spite of directions issued to the Government of Kerala to place facts before the UPSC, the Government failed to place the correct legal positions, referred by us supra. We feel that no purpose will be served by issuing any further directions. Hence the legal obligation on us is grant the relief of declaration in prayer (1) of O.A. Consequently, we, therefore, direct the Selection Committee of UPSC to reconsider the case of the applicant once more as if there is no penalty in force against him in all the Assessment Years relevant in the case, without being influenced by whatever Assessment Matrix was earlier prepared.
44. Besides the above, we have also taken into consideration in this case some other broad issues relevant for consideration under Administrative Law. It is a well-known doctrine of Administrative Law that what the law demands is not just that wide discretionary power on part of an authority is eliminated, but also that the law itself should control the actual exercise of the power. The Selection Committee of the UPSC has been given certain discretionary powers. However, even within the exercise of such discretionary powers, it has to be recognised that all such powers in relations to a Selection possesses legal limits. A Court or Tribunal, it is said, has to clarify or draw those limits in such a way which strikes the most suitable balance between executive efficiency as well as legal protection of the citizen. In other words, the principle of reasonableness is one of the most active and conspicuous O.A No.180/527/2021 59 among the doctrines, existing in Administrative Law. It is widely accepted that the notion of absolute or unfettered discretion on part of an Authority has no place in a constitutional democracy. This is not just on the ground of potential malafide or bias which we do not think comes through the decision taken by the Selection Committee in this case. However, the test of reasonableness is definitely attracted. There is a way of exercising of discretionary power, which can be done only in the right and proper way. Any power given to any authority has to be used to promote the avowed policy, which in this case, is to get the best possible set of officers into the IPS from the pool of officers which is available. If an officer is being ignored in a casual way or on a hyper technical ground, we would say that the exercise of discretion has not been free from being unreasonable and such discretion cannot be left unfettered.
45. Thus, in sum, drawing from all our earlier observations, considerations and findings we make the following orders in the O.A :-
(i) It is declared that the penalty imposed on the applicant by Annexure A-1 dated 27.02.2006 has ceased to be operative from 30.06.2007 and he is eligible for consideration for selection and appointment to Indian Police Service.
(ii) The respondents UPSC will conduct a meeting of the Selection Committee once more in which the case of the
applicant, Shri.C.Bastin Sabu will be taken up for consideration O.A No.180/527/2021 60 for promotion, as if there is no penalty pending against him. The currency of the penalty should be taken as having been completed on 30.06.2007 and its effect does not flow into a period further than that.
Hence the Assessment Matrix prepared for the Meeting will be on the basis of no penalty existing after 2007. In addition, the impending retirement of the applicant, Shri.C.Bastin Sabu, from the State Government service on 31.05.2023 will not be a bar for his consideration for promotion to the Indian Police Service, if he is otherwise found suitable.
(iii) While conducting the aforesaid meeting the Selection Committee will consider the relevant aspects in relation to the candidacy of the applicant, Shri.C.Bastin Sabu, for the IPS such as per the records evidenced by his Annual Confidential Reports as well as all other relevant materials. If in case after such due consideration the applicant, Shri.C.Bastin Sabu, is found fit for promotion to the IPS, he shall be placed in the relevant year as per his grading and seniority that he is eligible for.
(iv) The Interim Order in relation to keeping one post vacant for the Select Year 2019 is hereby vacated. The case of the 6th respondent Shri.Ajith V should be taken up for reconsideration in the same meeting aforesaid, as he appears to be senior to the applicant, Shri.C.Bastin Sabu. Shri.Ajith.V may then be adjusted against the one vacancy for 2019 which had been ordered by this Tribunal to be kept aside if he is slotted higher after the consideration as compared to Shri.C.Bastin Sabu. The O.A No.180/527/2021 61 Select List for 2019 should, therefore, accordingly consist of 9 names including Shri.Ajith.V, if he is so eligible in order of seniority after the said evaluation by the Selection Committee.
(v) The applicant, Shri.C.Bastin Sabu, if he clears the scrutiny by the Selection Committee will be placed in the IPS Select List for the relevant year that he would be eligible for in terms of his seniority/eligibility. As it appears this will be most likely for the year 2020, he may be placed in the slot of Shri.Ajith.V, who would likely be elevated to the Select List of 2019.
(vi) The above exercise may be conducted by the Selection Committee when it meets for the identification and selection of candidates for the year 2021 for filling up of vacancies for the year 2021 and preparation of Select List of 2021 of the IPS Kerala Cadre. It has been indicated by the respondent State Government that there are as many as 14 vacancies for the year 2021. Thus, the State Government is also directed to complete all the necessary steps in terms of identifying the candidates and sending the required proposal with documents for a meeting of the Selection Committee for promotion to the IPS against vacancies of 2021, within a period of one month from the date of receipt of a copy of this order.
(vii) The UPSC may then conduct the meeting of the Selection Committee within a period of 45 days from the date of receipt of proposal from the State Government for filling up vacancies of 2021. At the time of O.A No.180/527/2021 62 the meeting, the matter of the applicant Shri.C.Bastin Sabu as well as that of Respondent No.6, Shri.Ajith.V., as indicated above in these orders, will also be taken up along with the matter of finalising the Select List for 2021 vacancies.
(viii) In case after the above action is completed there has to be some adjustment/changes in the final Select List, as brought out at Annexure A15 and revised Select List has to be published, it may be done so by the 1st respondent, Government of India, Ministry of Home Affairs within the required period after finalisation by the Selection Committee/UPSC.
46. The O.A is allowed as indicated above. We make no separate order as to costs.
(Dated this the 23rd day of May, 2023)
(K. V. Eapen) (Justice Sunil Thomas)
Administrative Member Judicial Member
bp
O.A No.180/527/2021
63
List of Annexures
Annexure A1- True copy of the Order No.A2/PR-20/05/NZ dated 27.02.2006 of
Inspector General North Zone.
Annexure A2- True copy of GO (Rt) No.1621/2006 Home dated 07.07.2009 (Typed
legible copy of Annexure A2)
Annexure A3- True copy of Judgment dated 21.06.2016 in WP(C) 33254 of 2006
by the Hon'ble High Court of Kerala.
Annexure A4- True copy of GO(Rt) No.478/2017/Home dated 27.02.2017.
Annexure A5- True copy of Order No.A2/28366/2006/NZ dated 24.10.2006 issued
by Inspector General, North Zone, Kozhikode.
Annexure A6- True copy of GO(Rt) No.3338/2017/Home dated 14.12.2017.
Annexure A7- True copy of proceedings dated 11.03.2021 of the Accountant
General, Kerala.
Annexure A8- True copy Chalan dated 12.03.2021 of Rs.5016/-.
Annexure A9- True copy of zone of consideration for IPS 2019 dated 25.09.2020.
Annexure A10- Assessment Matrix by the 3rd respondent in the meeting held on
24.06.2021 for the preparation of the Select List for the year 2018 (F.No.12/9/2021-AIS) Annexure A11- Minutes of the Selection Committee Meeting dated 24.06.2021 (UPSC F.No.7/9(1)/2020-AIS) Annexure A12- True copy of communication No.F.No.12/9/2022-AIS dated 08.07.2022 addressed to the applicant from the office of the 2nd respondent. Annexure A13- True copy of the letter No.AIS-C3/220/2022-GAD dated 30.07.2022 addressed to the applicant from the General Administration (AIS-C) Department Government of Kerala along with the proposal forwarded from the Government of Kerala to the Selection Committee for the purpose of considering the applicant for conferment of IPS for the years 2019 and 2020.
Annexure A14- A true copy of the representation dated 14.08.2022 submitted by the applicant before the 3rd respondent.
Annexure A15- A true copy of the Select List dated 16.11.2022 issued as per notification No.F.No.1-14011/05/2021-IPS-I(E) dated 16.11.2022, issued by the Ministry of Home Affairs, Government of India.
Annexure A16- A true copy of the integrity certificate and extract of personal details of the applicant forwarded by the Government of Kerala on 14.10.2022 to the UPSC, as received by the applicant along with the reply dated 07.11.2022 for his query under the Right to Information Act.
Annexure A17- A true copy of the reply (F.No.12/9/2022-AIS) dated 23.11.2022 issued by the Chief Public Information Officer of the Union Public Service Commission to the applicant furnishing him the matrix of the Selection Committee Meeting held on 27.06.2022 and 17.10.2022 for preparation of Select List for promotion to IPS Kerala Cadre for the years 2019 and 2020.
Annexure A18- A true copy of the minutes of the Selection Committee (F.No.7/9/2022-AIS) held on 27.06.2022 for preparation of year wise list of members of the State Police Service for promotion to Indian Police Service of Kerala Cadre against the vacancies of 2019 and 2020.
Annexure A19- A true copy of the minutes of the Selection Committee held on 17.10.2022 for preparation of year wise list of members of the State Police Service for promotion to Indian Police Service of Kerala Cadre against the vacancies of 2019 and 2020.
O.A No.180/527/2021 64 Annexure A20- A true copy of Memorandum No.80776/SB4/PD dated 13.10.1961 issued by Public (Services-B) Department, Government of Kerala. Annexure A21- A true copy of the applicant's Annual Confidential Report for the period 01.01.2015 to 31.12.2015 (along with typed legible copy). Annexure A22- A true copy of the applicant's Annual Confidential Report for the period 01.01.2016 to 08.06.2016 (along with typed legible copy) Annexure A23- A true copy of the applicant's Annual Confidential Report for the period 09.06.2016 to 31.12.2016 (along with typed legible copy) Annexure A24- A true copy of the applicant's Annual Confidential Report for the period 01.01.2017 to 06.06.2017 (along with typed legible copy) Annexure A25- A true copy of the applicant's Annual Confidential Report for the period 12.06.2017 to 31.12.2017 (along with typed legible copy) Annexure A26- A true copy of the applicant's Annual Confidential Report for the period 01.01.2018 to 05.06.2018 (along with typed legible copy) Annexure A27- A true copy of the applicant's Annual Confidential Report for the period 12.06.2018 to 31.10.2018 (along with typed legible copy) Annexure A28- A true copy of the applicant's Annual Confidential Report for the period 01.11.2018 to 31.12.2018 (along with typed legible copy) Annexure A29- A true copy of the applicant's Annual Confidential Report for the period 01.01.2019 to 09.04.2019 (along with typed legible copy) Annexure A30- A true copy of the applicant's Annual Confidential Report for the period 10.04.2019 to 31.12.2019 (along with typed legible copy) Annexure A31- A true copy of the applicant's Annual Confidential Report for the period 01.01.2020 to 08.06.2020 (along with typed legible copy) Annexure A32- A true copy of the applicant's Annual Confidential Report for the period 11.06.2020 to 09.09.2020 (along with typed legible copy) Annexure A33- A true copy of the applicant's Annual Confidential Report for the period 09.09.2020 to 31.12.2020 (along with typed legible copy) Annexure A34- True copy of the extract of Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 containing Rule 11 of KCS (CCA) Rules. Annexure A35- True copy of the relevant extract containing paras 47 to 52 of the Manual for Disciplinary Proceedings in respect of Government Servants under the Kerala State Service.
Annexure A36- True copy of Circular No.71 issued as per File No.GE-1/A/15-18/92- 93/91 dated 27.08.1990 issued from the Office of the Accountant General, Kerala. Annexure A37- True copy of the Officer Memorandum No.11012/15/2016-Estt A-III dated 18.06.2019 issued by the Ministry of Personnel, Public Grievances and Pensions, Government of India.
Annexure A38- True copy of the Officer Memorandum No.DOPT - 1672644835095 dated 19.12.2022 issued by the Ministry of Personnel, Public Grievances and Pensions, Government of India regarding clarification/interpretation of various penalties prescribed in Rule 11 of CCS(CCA) Rules 1965.
Annexure A39- True copy of the Guidelines/Procedures issued by the UPSC for categorization of State Civil/Police/Forest Service Officers and preparation of list of suitable officers by the Selection Committee for Promotion to the Indian Administrative Serivice/Indian Police Service/Indian Forest Service in terms of Regulation 5(4) and 5(5) of Promotion Regulations.
O.A No.180/527/2021 65 Annexure R2(a)- A true copy of the Minutes of the Selection Committee held on 27.06.2022.
Annexure R4(b)- A true copy of the Minutes of the Selection Committee held on 17.10.2022.
Annexure R4(c)- A true copy of the Minutes of the Selection Committee held on 16.11.2022.
Annexure R6(a)- F.No.I-14011/05/2021-IPS.I(E) dated 10.05.2022 issued by the Government of India, Ministry of Home Affairs.
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