Central Administrative Tribunal - Mumbai
M.M. Rathod vs Union Of India (Uoi) And Ors. on 12 December, 2005
Equivalent citations: 2007(1)SLJ212(CAT)
ORDER Anand Kumar Bhatt, Member (A)
1. The following relief has been sought by the applicant in the present case:
(a) Call for the record of proceedings from the file of the UPSC regarding the Select Committee meeting record of 04.12.1987; peruse the same;
(b) Issue rule nisi and admit the Original Application for final hearing at the earliest.
(c) Quash and set aside the impugned communication dated 14.7.2005 of UPSC respondent No. 2 referred herein above and marked as Annexure-I and direct the applicant to be considered in select committee meeting on 4.12.1987 and direct him to be selected with appropriate grading;
(d) Direct the respondent No. 3 to issue notification promoting the applicant to IPS under Sub-regulation 3 of Regulation 7 of IPS (Appointment by Promotion) Regulations, 1965 in the select committee meeting held on 4.12.1987 by inclusion of his name in the notification dated 21.9.1988 and grant him year of allotment of 1984 in the interest of justice;
(e) Direct the respondents to grant all consequential benefits pursuant to grant of promotion to IPS, as per the select committee meeting dated 4.12.1987, such as Junior administrative grade/senior administrative grade and super time scale of Indian Police Service upon completion of 7, 12 and 14 years of service respectively;
(f) Direct the respondents to grant all financial benefits on account of fixation of pay at the earliest.
(g) Grant any other relief which this Hon'ble Tribunal deems fit in the facts and circumstances of the case including cost.
2. The applicant was appointed to State Police Service vide notification dated 10.12.1977. On 16.04.1980 he was appointed as Sub-Divisional Police Officer (for short SDPO), Sholapur City. During that period, an offence was registered against the applicant and other staff of Laxmipuri Police Station on allegedly false complaint made by anti social elements involved in illegal gambling activities. Charge sheet in the criminal Court was filed, The applicant was placed under suspension on 23.03.1983. On 09.02.1988 the Sessions Judge honourably acquitted all the staff including the applicant. On 06.05.1988 the suspension order was revoked and he was posted as SDPO, Akola. An appeal was preferred by the State Government against the acquittal order passed by the Additional Sessions Judge, Kolhapur before the High Court of Bombay. The case was pending for final hearing before the High Court for fifteen years. On 05.11.1992 the applicant was promoted as DCP, Nagpur. Government of Maharashtra also expunged all adverse remarks reported by higher authorities because of the pendency of the criminal case against him. The applicant was first considered by the Selection Committee meeting for promotion to IPS on 22.09.2000 for preparing the select list for the year 2000. He was assessed as 'Good' but his name could not reach for promotion. He was again considered for the preparation of select list of 2001. He was selected and later promoted vide Government of India notification dated 28.01.2002. The applicant represented to the State Government for consideration in the Select Committee meeting along with his batch-mate of 1978 Direct Dy. Ss.P. His case was referred to UPSC. The UPSC considered the case and informed the State Government vide their letter dated 14.07.2005 that rules and regulations governing the promotion of State Service Officers to the All India Services under the Promotion Regulations do not provide for suomotu review of select lists after it has been approved and acted upon. Five vacancies were considered for the select list of 2000 and the applicant was rated as 'Good' but he could not be included in the select list due to lower grading given to him. For the year 2001 there was only one vacancy and the names of the three eligible officers were sent by the State Government, the applicant was Sl. No. 1 and he was assessed as 'Very Good'. He was later on approved by the Commission after the State Government belatedly gave integrity certificate for him. The applicant has cited the cases of his batchmates S.B. Sawarkar who was not promoted earlier because of a criminal case pending against him and R.N. Wagh whose adverse ACRs were later on expunged and they were later on given benefit from back date about whom UPSC stated that their case is different from the present case. The reason why the applicant could not be considered for 1987 and subsequent years up to 1999 for promotion to the IPS was that he was not confirmed in the State Police Service.
3. Grounds taken by the applicant are that the applicant was falsely implicated in the criminal case which lingered on for twenty years. The applicant is required to be empanelled in the Select Committee meeting dated 04.12.1987 and appointed w.e.f. 22.09.1988 in the IPS, the date his next junior was promoted. The applicant's suspension period was treated as 'On Duty'. His date of confirmation which was from 31.12.1993 was revised and he was deemed to have been confirmed in the State Police Service w.e.f. 31.12.1986 and, therefore, he was entitled to be considered in the Selection Committee meeting of 1987. About S.B. Sawarkar, batch mate of the applicant, he has stated that on 04.12.1987 a criminal case and departmental enquiry was pending against him. He was considered and kept in the select list provisionally. After he was acquitted of the criminal charge and departmental enquiry was dropped against him, he was restored to his position after he got the relief from the Tribunal. In the case of R.N. Wagh, another batch-mate of the applicant, it has been explained by him that on 04.12.1987 he had adverse remarks in his A.C.R. and therefore he was not selected. After expungtnent of adverse remarks, the Tribunal gave relief to him. The applicant has requested for similar treatment.
4. Separate replies have been filed on behalf of Union of India (respondent No. 1), U.P.S.C. (respondent No. 2) and State of Maharashtra (respondent No. 3). About R.R. Sonkusare and B.J. Kangale, who were junior to the applicant in the same batch, it has been stated that they were considered for the select list prepared for the year 1987 as they were confirmed in the State Police Service whereas the applicant was confirmed only later vide order dated 23.08.2000 w.e.f. 31.12.1993. For S.B. Sawarkar and R.N. Wagh it has been stated that they were due for consideration to the IPS on 01.01.1987 and therefore different from the case of the applicant.
5. Mr. M.M. Sudame, Counsel for the applicant, contended that the spirit of the U.P.S.C. letter dated 14.07.2005 and the replies of the three official respondents is that although suo motu review of select list is not possible, it can always be done on the basis of Court directive. The Counsel cited the case of Shri A.K. Banerjee [O.A. No. 709/02, Bombay Bench] wherein similar relief has been given. In the said case Amar Kant Choudhary v. State of Bihar and Ors. 1984(1) SLJ 356 (SC) : 1984 SCC (L&S) 173, has been cited where the second issue - namely no provision for convening a review Selection Committee meeting has been discussed and decided in favour of the employee.
6. Mr. V.S. Masurkar, Counsel for the respondents, stated that State Police Officers becomes eligible for being considered for IPS only after confirmation. As the applicant was not confirmed, he was not considered in the Selection Committee meeting from 1987 to 1999. Under the rules, there is no provision for review on the basis of subsequent acquittal in the criminal case.
7. We have considered the case. In the reply of the respondent No. 1 (Ministry of Home Affairs), it has been mentioned in Para 7 that "the IPS Promotion Regulation do not envisage the provision of review of a select list already prepared and acted upon. In the instant case the select list of 1987 has been succeeded by several select lists. As such its validity period has also expired. Review of such select list are done only in pursuance of specific Court directions. This respondent can consider his appointment only when the officer is recommended by such a review Selection Committee." In the case of two of his batch mates, after they were acquitted from the criminal case and adverse remarks were expunged respectively, they were restored to their original position in the select list and seniority and granted all financial benefits. This has not been rebutted by the official respondents. There is no reply from the private respondent, R.R. Sonkusare, who is next junior to the applicant. The matter relating to convening of review Selection Committee meeting was discussed by the Tribunal (Bombay Bench) in O.A. 709/92 [A.K. Banerjee v. Union of India]. It would be appropriate to quote the relevant portion of the said order:
7. On the second point which has been raised, namely, no provision for convening a review selection meeting, we are afraid such a contention cannot now be entertained because we have in O.A. 28/92, Rajendra A. Sonawane v. Union of India and Ors. decided on 04.08.1994 held that the applicant therein who was similarly placed, was entitled to reconsideration of his entitlement when he should have been considered when his junior came to be considered. In Amr Kant Choudhary v. State of Bihar and Ors. 1984 SC Cases (L&S) 173, the Supreme Court observed as follows:
After giving our anxious consideration to the uncontroverted material placed before us we have reached the conclusion that the case of the appellant for promotion to the Indian Police Service Cadre has not been considered by the Committee in a just and fair way and his case has been disposed of contrary to the principles laid down in Gurdial Singh Fijji case. The decisions of the Selection Committee recorded at its meetings in which the case of the appellant was considered are vitiated by reason of reliance being placed on the adverse remarks which were later on expunged. The High Court committed an error in dismissing the petition of the appellant and its order is, therefore, liable to be set aside. We accordingly set aside the order of the High Court. We hold that the appellant has made out a case for reconsideration of the question of his promotion to the Indian Police Service Cadre of the State of Bihar as on December 22, 1976 and if he is not selected as on that date for being considered again as on March 12, 1981.
8. The learned Counsel for the applicant pointed out to us that Rule 5(6) of the Indian Police Service (Appointment by Promotion) Regulations, 1965 also provides that the list so prepared shall be reviewed and revised every year and this therefore would show that the ground put forward by the respondent No. 1 for not reviewing or revising the select list is not substantial.
9. In R.K. Singh v. State of U.P. and Ors. (1991) 17 ATC 341, it was observed that "once the adverse entries awarded to the appellant were expunged the applicant is entitled to Selection Grade with effect from January 1,1986, the date on which he was eligible for grant of Selection Grade." An identical situation arises in the present case as we see no merit in the objection raised by the respondent No. 1, Union of India to reviewing the case of the applicant in the light of the expunction o the adverse confidential remarks. We note that the respondent No. 2, State of Maharashtra, in their reply has pointed out that since the applicant has become eligible for being considered - for promotion to the IPS in the year 1978 in view of the changed circumstances in the State Service record, his representations were forwarded to the Government of India, Ministry of Home Affairs by letter dated 30.11.1991 with the recommendation that the applicant's case may again be placed before the Selection Committee with a view to assess whether he was fit to be included in the select list of SPS Officers for appointment to the IPS for the year 1978. But this recommendation was not accepted by the first respondent by the letter dated 22.04.1992. It is difficult for us to accept the submission on behalf of respondent No. 1 that the applicant is not entitled to relief. We see no merit in the pela of limitation which has been raised and the other points raised are covered by the decision of the Supreme Court to which he had adverted above.
10. In the result, we hold that (a) the applicant is entitled to be considered for appointment by promotion to the Indian Police Service in the year 1978, (b) the respondents are directed to consider the case of the applicant for appointment by promotion to the Indian Police Service in the year 1978 and in subsequent years and order retrospective promotion with all consequential benefits including payment of difference in salary. We direct that these directions shall be implemented within four months from the date of receipt of a copy of this order. There will be no order as to costs. M.P. is disposed of.
8. The present case is identical to the case of A. K. Banerjee. The applicant's consideration by review D.P.C. for appointment by promotion to IPS in 1987 and subsequent years should not be adversely affected in any way by the fact that his low rank of 'Good' in the year 2000 was responsible for his non-inclusion in the select list of 2000. The applicant be considered for appointment by promotion to IPS in 1987 and subsequent years and in case he is not found unfit he be given retrospective promotion on a notional basis from the date his next junior was promoted with all consequential benefits. However, the actual payment of difference of salary will be available to him from the date of his actual promotion to IPS i.e. 28.01.2002.
9. O.A. is allowed as above. No order as to costs.