Central Administrative Tribunal - Ernakulam
Haridas T K vs M/O Home Affairs on 26 September, 2017
Author: P. Gopinath
Bench: P. Gopinath
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 733 of 2013
Tuesday, this the 26th day of September, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
Hon'ble Ms. P. Gopinath, Administrative Member
Haridas T.K., S/o. N. Krishnan Nair, aged 56 years,
Retd. Superintendent of Police, residing permanently at
Suprabha, TC 34/1533, Chittatinkara, Vattiyoorkavu PO,
Thiruvananthapuram - 695 013. ..... Applicant
(By Advocates : Mr. M.R. Rajendran Nair, Sr.
Mr. M.R. Hariraj)
Versus
1. Union of India, represented by the Secretary to Government of India,
Ministry of Home Affairs, New Delhi - 110 012.
2. Union Public Service Commission, represented by its Secretary,
UPSC, New Delhi - 110 001.
3. State of Kerala represented by the Chief Secretary, Government of
Kerala, Secretariat, Thiruvananthapuram - 695 001.
4. K.A. Muhammed Faizel, aged 55 years, S/o. Ammer Sahib,
Superintendent of Police, Vigilance and Anti Corruption Bureau,
Central Range, Ernakulam, Kochi - 682 017, residing at No. B2,
Express Garden, Kaloor, Kochi - 682 017.
5. Secretary, Department of Personnel and Training,
New Delhi-110 011. ..... Respondents
{By Advocates : Mr. N. Anilkumar, Sr. PCGC (R) [R1],
Mr. Thomas Mathew Nellimoottil (R2),
Mr. M. Rajeev, GP (R3) &
Mr. T.B. Hood (R4)}
This application having been heard on 04.08.2017, the Tribunal on
26.09.2017 delivered the following:
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ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
Applicant is a retired Superintendent of Police. He is aggrieved by the refusal of the respondents for considering him in the inclusion in the select list for appointment by promotion to Indian Police Service (IPS) unconditionally in terms of the provisions of the Indian Police Service (Appointment by Promotion) Regulations, 1955 [hereinafter referred to as the Regulations]. According to him he having rendered unblemished service for about three decades with 30 good service rewards and ratings in the confidential report as outstanding, excellent and very good was working as Superintendent of Police in the Kerala State Police Service from 12.11.2010 till his retirement on 31.5.2015. He by virtue of his seniority was at serial No. 23 in the zone of consideration of 23 officers for the 13 vacancies for appointment by promotion to the IPS in the year 2010. In 2011 there were 8 vacancies and the applicant was ranked 16 amongst 24 officers included in the zone of consideration - again by virtue of his seniority and merit. The committee set up under the Regulations included the name of the applicant for the vacancies of the year 2011 provisionally. The State Government however had withdrawn his integrity certificate on the ground that he was charge sheeted by Central Bureau of Investigation (CBI) as indicated in Annexure A1 note wherein his name also was included in the zone of consideration. According to the applicant the note in Annexure A1 against his name that a trial was pending is not correct. According to him while he was working as the Assistant Commissioner of Police, Fort, Trivandrum police arrested two individuals of whom one was hospitalised as he was not 3 keeping well. Later he died. A crime was registered and three police Constables and a Circle Inspector were arrayed as accused in the Sessions case wherein the trial continued. However, based on a petition filed by the mother of the deceased person the High Court referred the matter to the CBI in 2008. The CBI filed a final report on 30.8.2010 including the applicant as 11th accused under Sections 120B, 466, 474, 193, 167 and 201 of Indian Penal Code. According to the applicant he was included as an accused in the CBI case on the basis of a statement made by one of the accused who was later made an approver. Applicant states that the CBI Special Court to which the case was committed is yet to frame charges and therefore, it cannot be said that the trial in that case was pending. Knowing that the applicant's integrity certificate was withheld for the purpose of promotion to IPS he filed a representation to the Chief Minister which was deferred for consideration stating that the matter will be reviewed if necessary in the event of the applicant's selection to the IPS. The selection committee under the Regulations met and 18 officers were included in the select list against 11 vacancies for 2010-2011. The applicant and two others were included in the list provisionally. Aggrieved by the refusal of the State Government to give integrity certificate, the applicant approached this Tribunal with OA No. 24 of 2013. This Tribunal vide Annexure A4 order directed the State Government to consider the case of the applicant for grant of integrity certificate as per the guidelines of the Department of Personnel & Training and to communicate a decision by way of a speaking order. Accordingly the State Government issued Annexure A5 integrity certificate. As per the select list approved by the selection committee in the meeting 4 held on 5.7.2013 the applicant was included only provisionally. The select list is valid only for 60 days from the date of issue. The applicant made Annexure A6 representation to respondent No. 3 on 30.7.2013. Though respondent No. 3 in Annexure A5 did not consider the pending case against the applicant as one which dis-entitle him from being included in the select list unconditionally, as respondent No. 2 is not treating Annexure A5 as a proposal to include him unconditionally, the applicant has approached this Tribunal seeking relief as under:
"i. To declare that Explanation I of Regulation 5(4) of the IPS (Appointment by Promotion) Regulation, 1955, is unconstitutional to the extend it treats a criminal proceedings as pending even without framing of charges by the court, and direct the respondents not to implement the said provision against the applicant; and to direct the respondents to treat the inclusion of the name of the applicant in the select list for appointment by promotion to the Indian Police Service as unconditional;
ii. Alternatively to declare that first proviso to Regulation 7(4) of the IPS (Appointment by Promotion) Regulation, 1955, is unconstitutional to the extent do not provide for making unconditional the inclusion of names of officers who are acquitted or cleared from the criminal proceedings, or proposal in case of whom is send by the State Government after the date of effect of the select list, and direct the respondents not to implement the aid provision against the applicant; and to direct the respondents to treat the inclusion of the name of the applicant in the select list for appointment by promotion to the Indian Police Service as unconditional, irrespective of the date on which he is cleared from the Criminal Case, or the date on which the proposal under the proviso is send by the State Government;
iii. Alternatively, to direct the State Government to consider the case of the applicant and to decide whether he is to be included unconditionally in the select list despite the criminal proceedings being treated as pending due to legal fiction under Explanation I of Reg. 5(4) of the IPS (Appointment by Promotion) Regulation, 1955 and to make the proposal regarding the same during the effectiveness of the select list approved by the Commission;
iv. Alternatively, to direct the 2 nd respondent to declare the applicant as included in the select list unconditionally treating Annexure A5 as the proposal of the State Government under Reg. 7(4) of the IPS (Appointment by Promotion) Regulation, 1955, v. to direct the 1st respondent to consider the applicant for appointment by promotion to the Indian Police Service based on his inclusion the final select list for appointment by promotion to IPS for the year 2011 in the Kerala Cadre.
vi. grant such other reliefs as may be prayed for and the court may deem fit
to grant, and
vii. grant the costs of this Original Application. "
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2. Additional respondent No. 4 was impleaded on the basis of his application contending that in the event of allowing this OA he would be put to suffer irreparable injury as he was not included in the select list of the year 2011 and in-eligible officers including the applicant who were not having the integrity certificate issued by the State Government were included. According to him some of the officers in the 2011 select list were considered for the year 2010 also and if selection of any one of the officer in 2010 select list is interfered with, the officers now included in the 2011 select list will move to 2010 select list. Therefore he filed OA No. 953 of 2013 making the applicant and others who were included in the select list as respondents.
3. The applicant himself filed MA No. 180/970/2014 for impleading Secretary, Department of Personnel & Training as 5 th respondent and the same was allowed.
4. Only respondents Nos. 1 & 2 have filed reply statement in this case.
In the reply statement of respondent No. 1 it is stated that the State Government has the exclusive role regarding drawing of the consideration zone of the eligible State Police Service officers placed before the selection committee in terms of seniority of such officers in the State Police Service.
The UPSC is wholly concerned with the select list prepared and approved under Regulation 7(3) on the basis of the grading made by the selection committee and with the aid of the observations of the State and the Central Government. The Central Government is the authority concerned of making 6 appointments from the select list on the recommendations of the State Government in the order in which the names of such State Police Officers appear in the select list during its period of validity. Respondent No. 1 points out that applicant was not finally included unconditionally by the UPSC and since he has ceased to be a member of the State Police Service on 31.7.2013 he could not be appointed to the Kerala cadre of the IPS from the select list of 2011. It was also contended that due to non-joinder of DoP&T the OA is liable to be dismissed as the applicant has challenged the vires of Regulation 5(5) and Regulation 7(4) and as the aforesaid Department is the nodal authority for interpretation and interpolation of Rules and Regulations pertaining to All India Service (the DoP&T was impleaded as 5 th respondent subsequently). According to respondent No. 1 the Central Government does not have the power to appoint an officer who has ceased to be a member of the State Police Service.
5. In the reply statement filed by respondent No. 2 Union Public Service Commission (UPSC) it is stated that the State Government vide letter dated 29.8.2013 has informed that the applicant has been charge sheeted by CBI in case No. 08/2010 and that the said case is pending trial before the Court.
There was no proposal from the State Government under Regulation 7(4) with a positive recommendation to make the applicant's inclusion in the select list as unconditional. The information furnished by the State Government was examined by the UPSC and it was observed by the UPSC that since the status of criminal proceedings pending against the applicant remained unchanged his inclusion in the select list of 2011 remained 7 provisional. Respondent No. 2 therefore prays for dismissing the OA.
6. We have heard Shri M.R. Hariraj learned counsel for the applicant, Shri Thomas Mathew Nellimoottil learned counsel for the UPSC (respondent No. 2), Shri M. Rajeev, Government Pleader for respondent No. 3, Shri N. Anilkumar, Sr. PCGC (R) for respondent No. 1 (Government of India) and Shri Amal Kasha representing Shri T.B. Hood, learned counsel for respondent No. 4. Perused the record.
7. We feel it worthwhile to read the relevant provisions of the 1955 Regulations, extracted below:
"5 Preparation of a list of Suitable officers.- 5(1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Police Service, as are held by them to be suitable for promotion to the Service. The number of members of the State Police Service to be included in the list shall be determined by the Central Government in consultation with the State government concerned and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held, in the posts available for them under rule 9 of the recruitment rules.
The date and venue of the meeting of the Committee to make the selection shall be determined by the Commission:
Provided that no meeting of the Committee shall be held, and no list for the year in question shall be prepared when,
(a) there are no substantive vacancies as on the first day of January of the year in the posts available for the members of the State Police Service under rule 9 of the recruitment rules; or
(b) the Central Government in consultation with the State Government decides that no recruitment shall be made during the year to the substantive vacancies as on the first day of January of the year in the posts available for the members of the State Police Service under rule 9 of the recruitment rules.
Provided further that where no meeting of the Committee could be held during a year for any reason other than that provided for in the first proviso, as and when the Committee meets again, the select list shall be prepared separately for each year during which the Committee could not meet, as on the 31st December of each year.
Explanation- In the case of joint cadres, a separate select list shall be prepared in respect of each State Police Service.
85(2) The Committee shall consider for inclusion to the said list, the cases of members of the State Police Service in the order of a seniority in that service of a number which is equal to three times the number referred in sub- regulation(1):
Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers:
Provided further that in computing the number for inclusion in the filed of consideration, the number of officers referred to in sub-regulation (3) shall be excluded:
Provided also that the Committee shall not consider the case of a member of the State Police Service unless, on the first day of January of the year [for which the select list is prepared] he is substantive in the State Police Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent thereto by the State Government.
Provided also that in respect of any released Emergency Commissioned Officers or Short Service Commissioned Officers appointed to the State Police Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of the January of the year [for which the select list is prepared], in the post of Deputy Superintendent of Police or in any other post or posts declared equivalent thereto by the State Government.
Explanation:- The powers of the State Government under the third proviso to this sub-regulation shall be exercised in relation to the members of the State Police Service of a constituent State, by the Government of that State.
5(2A) [ ] Deleted.
5(3) The Committee shall not consider the cases of the members of the State Police Service who have attained the age of 54 years on the first day of January of the year {for which the select list is prepared}:
Provided that a member of the State Police Service whose name appears in the Select List (prepared for the earlier year) before the date of the meeting of the Committee and who has not been appointed to the Service only because he was included (provisionally in that select list) shall be considered for inclusion in the fresh list to be prepared by the Committee, even if he has in the meanwhile, attained the age of 54 years;
Provided further that a member of the State Police Service who has attained the age of fifty-four years on the first day of January of the year {for which the select list is prepared} shall be considered by the Committee, if he was eligible for consideration on the first day of January of the year or of any of the years immediately preceding the year in which such meeting is held but could not be considered as no meeting of the Committee was held during such preceding year or years [under item (b) of the proviso to sub-regulation(1)] 5(3A) The Committee shall not consider the case of such member of the State Police Service who had been included in an earlier select list and -
(a) had expressed his unwillingness for appointment to the Service under regulation 9:9
Provided that he shall be considered for inclusion in the select list, if before the commencement of the year, he applies in writing, to the State Government expressing his willingness to be considered for appointment to the Service;
(b) was not appointed to the Service by the Central Government under regulation 9(a) 5(4) The Selection Committee shall classify the eligible officers as 'Outstanding', 'Very Good', 'Good' or 'Unfit', as the case may be, on an overall relative assessment of their Service records.
5(5) The list shall be prepared by including the required number of names, first from amongst the officers finally classified as 'Outstanding' then from amongst those similarly classified as 'Very Good' and thereafter from amongst those similarly classified as 'Good' and the order of names inter-se within each category shall be in the order of their seniority in the State Police Service:
Provided that the name of an officer so included in the list, shall be treated as provisional, if the State Government, withholds the integrity certificate in respect of such an officer or any proceedings, departmental or criminal, are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government.
Provided further that while preparing year-wise select lists for more than one year pursuant to the second proviso to sub-regulation (1), the officer included provisionally in any of the select list so prepared, shall be considered for inclusion in the select list of subsequent year in addition to the normal consideration zone and in case he is found fit for inclusion in the suitability list for that year on a provisional basis, such inclusion shall be in additional to the normal size of the select list determined by the Central Government for such year.
Explanation I: The proceedings shall be treated as pending only if a charge-sheet has actually been issued to the officer or filed in a Court, as the case may be.
Explanation II: The adverse thing which came to the notice of the State Government rendering him unsuitable for appointment to the Service shall be treated as having come to the notice of the State only if the details of the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential.
5(6) Omitted.
6. Consultation with the Commission.- The list prepared in accordance with regulation 5 shall then be forwarded to the Commission by the State Government along with-
(i) the records of all members of the State Police Service included in the list;
(ii) the records of all members of the State Police Service who are proposed to e superseded by the recommendations made in the list;
(iii) [deleted].
(iv) the observations of the State Government on the recommendations of the Committee.
106A The State Government shall also forward copy of the list referred to in regulation 6 to the Central Government and the Central Government shall send their observations on the recommendations of the Committee to the Commission.
7. Select List.- 7(1) The Commission shall consider the list prepared by the Committee along with-
(a) the documents received from the State Government under regulation 6;
(b) the observations of the Central Government and, unless it considers any change necessary, approve the list.
7(2) If the Commission considers it necessary to make any changes in the list received from the State Government, the Commission shall inform the State Government and the Central Government of the changes proposed and after taking into account the comments, if any, of the State Government and the Central Government, may approve the list finally with such modification, if any, as may, in its opinion, be just and proper.
7(3) The list as finally approved by the Commission shall form the Select List of the members of the State Police Service.
Provided that if an officer whose name is included in the Select List is, after such inclusion, issued with a charge-sheet or a charge- sheet is filed against him in a Court of Law, his name in the Select List shall be deemed to be provisional.
7(4) The Select List shall remain in force till 31st day of December of the year in which the meeting of the selection committee was held with a view to prepare the list under sub-regulation (1) of regulation 5 or upto sixty days from the date of approval of the select list by the Commission under sub-regulation (1) or, as the case may be, finally approved under sub-regulation (2), whichever is later:
Provided that where the State Government has forwarded the proposal to declare a provisionally included officer in the Select List as "unconditional", to the Commission during the period when the select list was in force, (the Commission shall decide the matter within a period of forty five days)41A or before the date of meeting of the next selection committee, whichever is earlier and if the Commission declares the inclusion of the provisionally included officer in the Select List as unconditional and final, the appointment of the Concerned officer shall be considered by the Central Government under regulation 9 and such appointment shall not be invalid merely for the reason that it was made after the Select List ceased to be in force:
Provided further that in the event of any new Service or Services being formed by enlarging the existing State Police Service or otherwise being approved by the State Government as the State Police Service under Clause (j) of sub-regulation (1) of regulation 2, the Select List in force at the time of such approval shall continue to be in force until a new Select List prepared under regulation 5 in respect of the members of the new State Police Service, is approved under sub-regulation (1) or, as the case may be, finally approved under sub-regulation (2).
Provided also that where the select list is prepared for more than one year pursuant to the second proviso to sub-regulation (1) of regulation 5, the select lists shall remain in force till the 31st day of December of the year in which the meeting was held to prepare such lists or upto sixty days from the date of approval of the select lists by the Commission under this regulation, whichever is 11 later.
(5) [Omitted]
8 [Omitted]
9. Appointments to the Service from the Select List.- 9(1) Appointment of a member of the State Police Service, who has expressed his willingness to be appointed to the Service, shall be made by the Central Government in the order in which the names of the members of the State Police Service appear in the Select List for the time being in force during the period when the Select List remains in force:
Provided that in a Joint Cadre, the appointment of members of the State Police Service shall, subject to any agreement regarding filling up of the vacancies in the Joint Cadre by promotion of a member of the State Police Service serving in connection with the affairs of any such State, be made in the order in which the names of the members of the State Police Service occur in the relevant parts of the Select List for the time being in force:
Provided further that the appointment of an officer, whose name has been included or deemed to be included in the Select List provisionally under the proviso to sub-regulation (5) of regulation 5 or under the proviso to sub- regulation (3) of Regulation 7, as the case may be, shall be made within sixty days after the name is made unconditional by the Commission in terms of the first proviso to sub-regulation (4) of regulation 7:
Provided also that in case a select list officer has expressed his unwillingness for appointment to the service, he shall have no claim for appointment to the service from that select list unless he informs the Central Government through the State Government before the expiry of the validity period of the Select List, revoking his earlier expression of unwillingness for appointment to the service.
9(2) [Omitted].
9(a) Powers of the Central Government not to appoint in certain cases:-
Notwithstanding anything contained in these regulations [deleted] the Central Government may not appoint any person whose name appears in the Select List, if it is of the opinion that it is necessary or expedient so to do in the public interest:
Provided that no such decision shall be taken by the Central Government without consulting the Union Public Service Commission.
10 Saving.- Omitted."
8. The contention of the applicant is that the explanation in Regulation 5(5) that the proceedings shall be treated as pending only if a charge sheet actually has been issued to the officer or "filed in a court" is incorrect in law because there is no procedure for filing charge sheet in the court in a criminal case. According to the applicant what is filed by the investigating 12 agency is a charge report and it is for the Court to frame the charge against the persons accused and therefore the explanation (I) to Regulation 5(5) practically treats a person against whom the charges are framed by a competent court and a person against whom charge has not been framed by the court identically which tantamounts to treatment of un-equals as equal and hence violation of Articles 14 and 16 of the Constitution.
9. Yet another argument of the learned counsel for the applicant is that Regulation 7(4) stipulates the validity period for select list till 31 st day of December of that year by which time the State Government has to send the integrity certificate unconditionally in respect of the candidate. He points out that in this case respondent No. 2 has provided the list on 5.7.2013 and the whims of the State Government to make the proposal or not which is beyond the control of the applicant is arbitrary, unfair and amounts to hostile discrimination. It practically treats the persons acquitted by the criminal court subsequent to the approval of the select list differently based on the existence or other wise of a proposal of the State Government within a time frame, the counsel argued. It is further argued that the applicant's merit is beyond doubt, but his inclusion in the select list has been made provisional only due to a hovering cloud/eclipse of the pending criminal proceedings. According to the applicant, fettering of his consideration based on an event or exercise of power and the time within which the event or exercise of power occur -on which the officer has no control - is illegal and arbitrary. The delay in finalisation of the criminal proceedings is no way attributable to him and the trial of the case is yet to commence even after the delay of 13 nearly a decade. He points out that the Regulation does not prohibit the inclusion of a candidate by the State Government unconditionally even if there is a criminal case and the delay in taking a decision by the State Government to make such recommendation unconditionally is arbitrary, unreasonable and amounts to abdication of the discretionary power. Referring to Annexure A5 he further contends that as per Annexure A5 the State Government did not consider him as unsuitable for appointment as IPS and therefore seeking a further unconditional report by the State Government to the UPSC is only a mere formality and respondent No. 2 ought to have treated Annexure A5 as a proposal under Regulation 7(4).
10. We have carefully considered the polemics involved in the above arguments of the learned counsel for the applicant as well as the arguments challenging the vires of Regulations 5(4) and 7(4) of the 1955 Regulation. According to respondent No. 2 UPSC the State Government had subsequently informed to the Commission that the charge sheet against the applicant in the CBI case was served on the applicant ; under criminal law as framing of charge sets in motion the trial of a criminal case, it can be said by all means that the criminal case against the applicant is under trial.
11. Along with his rejoinder applicant has produced Annexure A7 copy of the judgment of the High Court of Kerala whereby a direction was given to the Court of Special Judge, SPE/CBI, Trivandrum to dispose of SC No. 916/2012 as expeditiously as possible, at any rate on or before 31.10.2014. 14
12. Shri Thomas Mathew Nellimoottil, Standing Counsel for the UPSC brought to our attention the decision in Gurpreet Singh Bhullar & Anr. v. Union of India & Ors. - (2006) 3 SCC 758 wherein it was held by the apex court as under:
".........A conjoint reading of Explanation 1 to Regulation 5(5) and the proviso to Regulation 7(3) speaks about the charge sheet being filed against an officer in a court of law. There is no concept of charges being framed under the regulation. The interpretation of the statute assigned by the High Court in the present case, if accepted, would negate the intendment of the legislature and frustrate the statute itself..........."
13. Shri Thomas Mathew Nellimoottil has also referred to UPSC v. K. Rajaiah & Ors. - (2005) 10 SCC 15 to enunciate the actual procedure adopted and taken into account by the UPSC. In Paragraph 11 of Rajaiah judgment the apex court said:
"It is also submitted that the Regulations do not provide for the detailed method to be followed in the matter of assessment of officers. The Commission has, therefore, evolved certain guidelines to be followed by the Selection Committee in the matter of the procedure for assessing the records. It is submitted that the confidential procedure of the Union Public Service Commission has been circulated to this Hon'ble Court. The procedure contained therein is followed by the Selection Committee in respect of all the States/Cadres for induction to the All India Services under the Promotion Regulations.
It is submitted that the Selection Committee is required to go through the service records of each of the eligible officers, with special reference to the performance of the officer during the last five years (preceding the years for which the Select List is being prepared), deliberating on the quality of the officer as indicated in the various columns recorded by the Reporting/Reviewing Officer/ Accepting Authority in the ACRs for different years and then finally arrive at the classification to be assigned to each officer. The Selection Committee also takes into account orders regarding appreciation for the meritorious work done by the concerned officers. Similarly, it is also required to keep in view orders awarding penalties or any adverse remarks communicated to the officer, which even after due consideration of his representation, have not been completely expunged............."
14. In Rajaiah's case the apex court has observed that the classification of the candidates by the selection committee of the UPSC by assigning gradings like outstanding, very good, good or unfit is a matter which vests 15 with the selection committee and the same is not justiciable unless the same is contrary to the statutory regulations or is in violation of Articles 14 & 16.
15. In Anil Kariyar (Mrs.) v. Union of India & Ors. - (1997) 1 SCC 280 also the apex court had considered the justifiability of the different gradings given by the DPC set up by the UPSC and held that judicial review in such cases is not permissible.
16. In Union Public Service Commission & Anr. v. A. Mohanan & Ors. - 2010 (3) KHC 241, the High Court of Kerala also referring to the aforesaid decision of the apex court held that the selection committee includes the name of the official provisionally subject to the expunction of adverse remarks and the selection committee has to evaluate the totality of his performance as reflected in the service record for the relevant period.
17. Thus, the judicial decisions lay down that the proceedings of the selection committee is not merely based on the ACRs or on the integrity certificate alone but are based on the totality of the service records presented before it by the State Government and that the selection committee arrives at its own decision whether to include the applicant in the select list or to include the applicant without any conditions or to include him in the select list provisionally.
18. Including a candidate as provisional again calls for a further report from the State Government within the period of validity of the select list 16 (which normally expires on 31 st December of the year during which the committee met/60 days) and he can be included in the select list unconditionally. Only if such unconditional report comes from the State Government within the period of validity of the select list it can be said that the applicant could be considered for appointment under Regulation (9).
19. Shri Thomas Mathew Nellimoottil relied on R. Rajendran v. Union of India & Ors - a judgment rendered by the Hon'ble High Court of Kerala on 20.07.2009 in WP(C) No. 20313 of 2009 also. In that case Hon'ble High Court of Kerala held:
"4. ........The point which remains to be considered is whether on acquittal, the petitioner can claim integrity certificate with retrospective effect for the year 1994-95 or for subsequent years. The relevant rules do not provide for such a procedure. The integrity certificate has to be issued during the relevant year when he is included in the list. If the same is not issued at the relevant time, there is no provision for extension of time......."
20. Shri Hariraj, learned counsel for the applicant relied on the decision of the apex court in Union of India v. Mohan Singh Rathore & Anr. - (1996) 10 SCC 469. In that case respondent a member of the State Police Service included in the select list as approved by the UPSC was denied appointment due to the sheer lapse on the part of the State Government to send the "no deterioration certificate". In that case despite the respondent's retirement on superannuation it was directed that his name be included in the appointment notification issued in respect of other co-selectees and all consequential retiral benefits be given to him.
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21. Shri Hariraj submitted that the applicant was not granted the integrity certificate despite having been included in the select list by the select committee he was forced to file OA No. 24/2013 wherein this Tribunal directed the State Government to give integrity certificate as per the guidelines issued by the DoP&T. Annexure A5 is the letter sent by the State Government in compliance of this Tribunal's order, along with the integrity certificate. In Annexure A5 it is stated:
"...........The case is now pending trial in pre-charge stage. No other disciplinary/vigilance case is pending against the officer and ACRs of the officer are very good/outstanding. Hence, Government is of the opinion that the pendency of the case before the CBI Court alone will not preclude the Government from issuing Integrity Certificate to Shri T.K. Haridas and it is decided to certify the Integrity of the officer.
Copy of the Integrity Certificate in respect of the officer is enclosed herewith for your consideration and necessary action. "
22. Annexure A2 is the communication containing the remarks made by the then Additional DGP Intelligence in relation to the officers who were included in Annexure A1 select list. It is interesting to read the opening paragraph of Annexure A2:
"As desired, the specific remarks on the integrity of the officers are furnished below.
'Satisfactory' is awarded when the officer had unsatisfactory performance during the previous years and sometimes disciplinary action or other complaints were inquired to. But at present technically no pending enquiry or disciplinary action is against the officer. However, his performance is at a very low level without any significant personal out in his work. Such persons are graded as 'satisfactory'.
'Bad' criteria is adopted where the overall reputation of the officer is 'bad' and he having pending enquiry or cases against him............. "
A conjoint reading of Annexures A2 and A5 reveals that there was no compunction for the State Government to issue integrity certificate for a candidate in spite of such candidate having been involved in a criminal case.
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23. In our view, integrity certificate contemplates the overall character, conduct, trustworthiness and probity of an officer. It also reflects whether he had any serious conflict with law or not. If the answer is negative it has to be presumed that prima facie such officials are not fit to be considered for the All India Service like Indian Police Service where people look up such officers as a personification of justice, integrity and character. In such cases the selection committee has to ensure that the candidates selected are, like Caesar's wife, with indisputable integrity.
24. In the instant case the applicant has been eager to establish that, despite his having been included in a serious criminal case, he is a person with "integrity". He has been clamouring for integrity certificate ever since he was included by the CBI in the criminal case. The State Government was too obliging to give Annexure A5 integrity certificate finding that the criminal case against him is now pending trial "in pre-charge stage". It has to be remembered that the interpretation of awarding "satisfactory" to officers who had unsatisfactory performance in the previous years, as explained by the Additional DGP (Intelligence) Annexure A2 is yet another sad tale of the laxity with which the unsatisfactory performance of and disciplinary action against police officers are dealt with by the Department and the State Government.
25. We are informed by the respondents that finally the State Government had reported to the UPSC that a charge sheet had been issued against the 19 applicant in the CBI case. On the basis of that report the UPSC decided not to change his status as provisional in the select list.
26. We feel that the grounds stated by the applicant for challenging the vires of Regulations 5(4) and 7(4) are without any merit. It appears to us that such a challenge was made only to circumvent the observations made by the apex court in paragraph 12 of Rajaiah's judgment (supra) wherein it was pointed out by the apex court, in that case, that there was no specific challenge to the rule or procedural guidelines regarding the procedure of assigning overall grading by the UPSC based on the existing guidelines adopted by it. We find no circumstance to impeach the vires of Regulations 5(4) and 7(4) as contended by the applicant.
27. In the result the OA is dismissed. Parties are directed to suffer their own costs.
28. It is made clear that we pass this order subject to the outcome of the SLP (Civil) Nos. 7494 & 7495 of 2014 and 2249 & 2250 of 2015 pending before the Hon'ble Apex Court.
(P. GOPINATH) (U. SARATHCHANDRAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA"
20
Original Application No. 733 of 2013
APPLICANT'S ANNEXURES
Annexure A1 - True copy of the UO note No. 39929/A2/2011/Home dated 2.7.2012 issued for the 3rd respondent.
Annexure A2 - True copy of the letter No. P4/8432/2012/SB dated 16.7.2012 of the ADGP (Intelligence) to the Principal Secretary, Government.
Annexure A3 - True copy of the letter No. A1/7736/2011 dated 28.7.2012 of the State Police Chief to the 3rd respondent. Annexure A4 - True copy of the final order dated 3.4.2013 in OA 24/2013.
Annexure A5 - True copy of the letter No. 6375/Spl.C3/2013/GAD dated 3.6.2013 issued for the 3rd respondent to the 2nd respondent.
Annexure A6 - True copy of the representation dated 30.7.2013. Annexure A7 - True copy of the judgment dated 2.1.2014 in OP (Crl.) 4309/2013 of the Honourable High Court of Kerala.
RESPONDENTS' ANNEXURES Nil
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