Central Administrative Tribunal - Kolkata
Anurudhra Das vs Police on 20 December, 2024
1 OA 111/2016/AN & Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
(CIRCUIT SITTING AT PORT BLAIR)
Date of hearing : 16.12.2024
Date of order : 20.12.2024
Coram: Hon'ble Smt. Urmita Datta (Sen), Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
In the matter of :
O.A. 351/00111/2016/AN
Smt. Manjula,
Aged about 42 years, W/o Shri S. Subba Raj, Working as PC/2003, A
& N Police Department, Andaman & Nicobar Islands, Presently
posted at SB (CID), Port Blair.
......Applicant
O.A. 351/00112/2016/AN
Shri Anurudhra Das,
S/o Raj Kumar Das, Working as PC/ 1891, A & N Police
Department, Andaman & Nicobar Islands, Presently posted at
Police Training School, Prothrapur, Port Blair.
.............Applicant
O.A. 351/00113/2016/AN
Shri Prafulla Mondal,
Aged about 28 years, S/o Lalit Mohan Mondal, Working as PC/
738, A & N Police Department, Andaman & Nicobar Islands,
Presently posted at PS. Baratang.
.............Applicant
Vs.
1. The Union of India, Through the Secretary, Ministry of Home
Affairs, Jaisalmer House, 26, Mansingh Road, New Delhi- 111001.
2. The Lt. Governor, Raj Niwas, Kamraj Road, A & N Islands, Port
Blair.
Digitally signed by SONALI LAL
SONALI
DN: C=IN, O=Personal, T=0572, OID.2.5.4.65=
1335963617493834803xeKNGD5eN7bXL, Phone=
d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970cce
81465079777, PostalCode=800009, S=Bihar,
SERIALNUMBER=
b85cadb360af4981732c949bc31df6d98e2c92428456adc533a
LAL
de9e38d5aed96, CN=SONALI LAL
Reason: I am the author of this document
Location:
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2 OA 111/2016/AN & Ors.
3. The Director General Police, Police Head Quarter, A & N Police, A
& N Islands, Atlanta Point, Port Blair.
4. The Inspector General of Police, Police Head Quarter, A & N
Police, A & N Islands, Atlanta Point, Port Blair.
5. The Superintendent of Police (HQ), South Andaman District, Port
Blair.
6. Shri Mohan Yadav, HC/629, Presently posted at PS. Aberdeen,
Port Blair.
7. Shri D. Binoy, HC/1081, Presently posted at PS. Humfreygunj,
South Andaman.
8. Shri Sumit Kumar Nag, HC/ 937, CID Branch, Port Blair.
................Respondents
For the Applicant : Ms. Anjili Nag, Counsel
For the Respondents : Dr. D. Chowdhury, Counsel
ORDER
Per: Suchitto Kumar Das, Administrative Member Due to parity in the nature of grievance and facts pleaded, OA/351/0111/2016/AN, OA/351/0112/2016/AN and OA/351/0113/2016/AN are being heard out analogously, upon due notice, to be disposed of by this common order, with consent of all the sides.
2. The applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following relief:
"a) An order/orders / direction/ directions quashing the order dated 22.06.2016 bearing order no. 1979, 1980 & 1981 and order dated 15.07.2016 bearing order no. 2269 and order no. 2400 dated 04.08.2016.
b) An order/orders/ direction/ directions declaring the order dated 28.11.2014 to be valid for all purpose.
c) An order/ orders/ direction/ directions directing the respondent authorities to either grant seniority to the applicant from the date of her Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970cce 81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc533a LAL de9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
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3 OA 111/2016/AN & Ors.
promotion or promote her to the post of Head Constable from the date when the vacancy arose.
d) An order/ orders/ direction/ directions directing the respondent authorities to act in accordance with law.
e) An order directing the respondents authorities to grant all consequential and monitory benefits to the applicant after promote her to the post of Head Constable.
f) An order to issue directing the respondents to produce the records of the case before this Hon'ble Tribunal so that conscionable justice may be done.
g) Costs and incidentals of the application may be awarded to the applicant.
h) Such other or further order direction or directions, as Your Lordships deem fit and proper in the interest of justice."
3. For the sake of clarity, facts in the case, as narrated by the applicants in their OAs, are as under :
The applicants are Police Constables in A & N Police Department.
On 31.10.2013, a Circular was issued by the Deputy Superintendent of Police asking all the Police Constables who have put in 5 years of regular service to submit their willingness in the prescribed format if they were interested in participating in the promotion test for the post of Head Constable. The applicants submitted their willingness.
Vide Order no. 9070 dated 28.11.2024, the applicants were promoted to the post of Head Constable and they were asked to undergo a training of lower school course at Police Training School. Vide memo dated 20.04.2016, respondent authorities informed the applicant that some police constables have submitted representations for not awarding marks for professional courses in accordance with the standing order and recruitment rule. It was further mentioned in the said memo that a review DPC was constituted which scrutinized the certificates of the candidates who had done professional course and it was found that the applicants do not come within Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970cce 81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc533a LAL de9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
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4 OA 111/2016/AN & Ors.
the zone of consideration. The applicants were asked to appear before the Inspector General of Police for personal hearing. The applicants submitted representations stating that there are vacancies in the department and as such even if they do not come within the zone of consideration, they can be retained in the promotional post. The applicants requested the authorities to retain them in the promotional post against vacancies which arose after the initial selection as a panel list is valid for a period of one year.
Vide Order no. 1979 dated 22.06.2016, the respondents authorities, on the basis of the recommendation of the review DPC, prepared the merit list again and inserted the name of the private respondents above the applicants. On 22.06.2016, the respondents authorities vide Order No. 1980 issued a revised promotional order which did not contain the names of the applicants. This resulted in reversion of the applicants from the posts of Head Constables to that of the Constable. Hence, these OAs.
4. Learned Counsel for the applicants submits that as per the procedure of selection, the candidates were required to submit an application to participate in the selection process. The format of the application in column no. 11 specifically deals with name of professional course attended, with duration. The private respondents did not submit the documents relating to their professional courses while submitting the applications. This Tribunal specifically directed the authorities vide order dated 22.11.2023 to produce the original applications of the candidates. However the same has not been produced. In a signal issued by the authorities, all the police personnels were asked to submit professional course certificates who participated in the departmental promotion test for the post of Head Constable held during October & November, 2014. This goes to show that the private respondents Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970cce 81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc533a LAL de9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
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5 OA 111/2016/AN & Ors.
did not submit the alleged professional course documents at the time of application/selection. This fact is admitted by the authorities in their reply. Neither service records of the private respondents were produced before this Tribunal to find out whether the private respondents submitted their certificates of professional courses nor their applications were produced.
Learned Counsel for the applicants submits that the authorities decided not to calculate the marks of candidates who have done professional courses through private institutions. However, such condition is not mentioned either in the standing order or in the circular issued by the authorities.
4.1 Learned Counsel for the applicants submits that once the selection process is over and candidates have been appointed, the authorities are barred from reopening the selection process in order to benefit some other candidates. Learned Counsel for the applicants further submits that so far as the applicant Anurudhra Das is concerned, even if the authorities reduced his marks assigning the reasons of incorrect calculation, his marks would be above the marks of private respondents calculated originally. 4.2 Learned Counsel for the applicants also submits that vacancies were available in the cadre of Head Constables at the time when the applicants were reverted. The applicants could have been accommodated against these vacancies as the selection panel containing the names of the applicants was still live when they were reverted.
5. Per contra, Learned Counsel for the respondents submits that after completion of selection process for promotion to the post of Head Constable, one candidate submitted a representation on 05.01.2015 stating that she was Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970cce 81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc533a LAL de9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
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6 OA 111/2016/AN & Ors.
awarded only 04 marks for qualifying in the 10 feet long jump instead of 06 marks. Her claim was found to be genuine and she came under zone of selection. She was promoted to the rank of Head Constable vide Order dated 21.04.2015. Thereafter, several candidates submitted their representations stating that they had not been awarded the marks for Commando Course, clearing physical endurance race, completion of computer course, etc. In response to their representations, a review DPC was constituted vide Order dated 17.09.2015 to verify the service particulars of all 293 candidates who appeared in the promotion test for scrutiny of inadvertent mistakes committed by the original DPC held on 27.11.2014. The review DPC noticed some discrepancies in awarding marks as per the Standing Order no. 637 dates 31.01.2013. In order to scrutinise the inadvertent mistakes, if any, which may have occurred during the original DPC which was held on 27.11.2014, it was decided to afford an opportunity to all the candidates who had appeared in the promotion test to submit copies of their certificates of professional courses, if any.
In the meeting of the review DPC, it was decided to strictly follow the provisions enunciated under the Standing Order and to award marks only to the candidates, who had completed the prescribed courses as mentioned in the said Standing Order from Government Institutions. It was also decided not to award any marks to the candidates having certificates of professional courses, such as Computer Course, Typing, etc. obtained from private institutions. After implementation of the decisions taken by the Review DPC held on 27.11.2015 and after awarding marks to the concerned eligible candidates for their professional courses a merit list of 293 candidates was re- drawn. The applicants herein went out of the zone of consideration as per the Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970cce 81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc533a LAL de9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
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revised merit list. After giving them an opportunity of personal hearing, the applicants herein were reverted to their substantive rank of Police Constable. 5.1 Learned Counsel for the respondents submits that the appointment letter issued to all the selected candidates including the applicants herein specifically mentioned that their promotion was ad hoc and they could be reverted to their earlier post at any time.
5.2 Learned Counsel for the respondents submits that the applicants herein cannot be adjusted against the vacancies which accrued subsequently. The merit list, which contains the names of all the 293 candidates who appeared in the promotion test in accordance with their merit position, cannot be termed as a panel list as contended by the applicants and therefore cannot be used for filling up future vacancies.
5.3 Learned Counsel for the respondents submits that the Recruitment Rules to the post of Head Constable (Executive) have been amended and notified on 18.03.2016, which have come into force w.e.f. 21.03.2016. In terms of the amended Recruitment Rules, 100% posts of Head Constable (Executive) and Assistant Sub Inspector (Executive) are to be filled up by promotion on non-selection basis (seniority-cum-fitness basis).
6. Heard the parties. Perused material on record. 6.1 The applicants are aggrieved by their reversion from the post of Head Constable to that of Constable. This was occasioned by the formation of a review DPC which went into the candidature of each applicant to the post of Head Constable de novo almost a year after the applicants in these OAs along with others had already been selected and appointed to the promotional post pursuant to the recommendations of an earlier DPC. Applicants have Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970cce 81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc533a LAL de9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
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contended that once the selection process was finalized and appointments made, it was not correct on the part of the respondents to reopen the entire process. Respondents justify their action on the grounds that it was made clear in the appointment letter issued to each candidate that they had been promoted on an ad hoc basis and that the successful candidates could be reverted to their earlier post in future. Respondents submit that after the selection and appointment of the applicants and others, a number of representations were received from some of the unsuccessful candidates alleging that they had not been allotted marks for their professional qualifications. The authorities then decided to give one more chance to all the applicants to submit their certificates which were scrutinized and evaluated afresh by the review DPC. This exercise resulted in recalculation of the total marks obtained by each candidate which in turn resulted in ousting of the applicants from the list of selected candidates. 6.2 It is settled law that any process of selection has to abide by the terms laid down in the vacancy notice. The vacancy notice dated 31.10.2013 included the pro forma to be used for making application for the post and for conveying the willingness of the applicant to be considered for promotion. This pro forma in its Row 11 required the applicant to indicate his/her professional qualifications, the obvious implication being, the candidates were themselves responsible for declaring their professional qualifications which they wished to be considered for selection for promotional post. It is the specific allegation of the applicants herein that the private respondents, who stole a march over the applicants at a later date, had neither mentioned their professional qualification in their application form nor did they submit the supporting documents at the time of application. The original DPC had Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970cce 81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc533a LAL de9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
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therefore rightly not awarded marks for such professional qualification. The respondents in their reply and in the additional reply have merely stated that all candidates were given an opportunity to submit their certificates. The Tribunal, on multiple occasions, directed the respondents to file copies of the application forms of the candidates in order to ascertain if the private respondents had mentioned their professional qualification in the application form or not. Respondents in their additional affidavit have submitted that the application forms are not available and that they are not in a position to produce them. Respondents are the custodians of the application forms. In the absence of the application forms as well as in the absence of a specific averment by the respondents that the private respondents had indeed mentioned their professional qualification in the application forms, we are left with no alternative but to draw an adverse inference against the respondents. In our opinion, it can be reasonably inferred from the material on records that the private respondents did not mention their professional qualifications in the application form as a result of which DPC held on 27.11.2014 did not award marks for such qualifications to them.
6.3 Hon'ble Supreme Court in a number of pronouncements has depreceated the practice of allowing the applicants in a selection to claim advantage on the basis of documents submitted later particularly in cases where such claim was not made in the original application of a candidate.
Hon'ble Apex Court in its judgment in Bedanga Talukdar vs. Saifudaullah Khan and others in Civil Appeal Nos. 8343-8344 of 2011 has observed :-
"28. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970cce 81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc533a LAL de9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
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to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India"
Neither the notice dated 31.10.2013 containing the proforma for the application nor the standing Order no. 37 dated 31.01.2013, which lays down the detailed procedure for promotion to the post of Head Constable, mentions the existence of any power of relaxation except to mention in the standing order that "For matters not specified in this Standing Order, the decision of the Director General of Police, A & N Islands shall be final." Even this clause did not find a place in the notice dated 31.10.2013 calling for willingness from the Constables for promotion to the post of Head Constable.
In any case, even the stipulation that DGP's decision will be final for matters not specified in the Standing Order, cannot be stretched to include the power to relax the rules to the extent that a selection process which has attained finality can be reopened or additional documents can be accepted from the candidates after the selection process is over and appointments made.
It is clear from the ratio enunciated above that the act of the respondents in granting advantage in terms of marks for professional qualifications, which were not declared by the candidates in the first instance in their application form as required by the vacancy notice and for which submission of documents were entertained much after the selection process Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970cce 81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc533a LAL de9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
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came to an end and appointments made, cannot be sustained in the eyes of law.
6.4 We also do not find merit in the submission of the respondents that the appointment letter issued to all selected candidates contained the stipulation that their promotions were ad hoc and they were liable to be reverted to the original post. Such stipulation does not give a right to the respondents to arbitrarily reopen the selection process after the selection process was completed and appointments made. Therefore, impugned order nos. 6712 dated 17.09.2015 setting up the DPC, signal no. DGP/ Estt./ PC to HC/ PROM/ 2013/ P-1/ 5473 dated 02.11.2015 inviting certificates of professional courses from the candidates, proceedings of the review DPC dated 27.11.2015 and the order of reversion of the applicants vide order book no. 1981 dated 22.06.2016 are quashed and set aside. 6.5 Respondents are directed to grant promotion to the applicants with effect from 28.11.2014 on the basis of the recommendations of the DPC held on 27.11.2014. The applicants will be entitled to consequential benefits such as notional pay fixation on the basis of their promotion on 28.11.2014, annual increments thereafter, seniority and pensionary benefits. It is, however, made clear that no backwages for the period, the applicants did not occupy the promotional post, will be payable to them.
It is also made clear that the appointment and promotion of the existing incumbents including the private respondents who are already in position in the post of Head Constable for almost 10 years will not be disturbed. Promotion of the applicants will be effected by creation of supernumerary posts of Head Constables, if necessary, for a fixed tenure till Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970cce 81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc533a LAL de9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
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such time as the applicants are adjusted against regular vacancies. This exercise shall be completed by the respondents within a period of 120 days from the date of receipt of this order in their office.
7. OAs stand disposed of. No order as to costs.
(Suchitto Kumar Das) (UrmitaDatta (Sen))
Administrative Member Judicial Member
sl
Digitally signed by SONALI LAL
SONALI
DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f9970cce 81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc533a LAL de9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
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