Central Administrative Tribunal - Cuttack
Dilip Routrai vs Department Of Personnel And Training on 19 May, 2022
1 O.A.No. 260/00308 of 2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00308 of 2021
Heard on: 7.4.2022 Pronounced on: 19.05.2022
CORAM:
THE HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A)
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
Dilip Routrai, aged 55 years, son of Sri Harihar
Routrai, At- Sangaon, P.O.- Jadupur, P.S.- Patkura,
District Kendrapara- 754213 and at present working
as OSD to Chief Secretary & Ex-Officio Special
Secretary to Government GA & PG Department,
Bhubaneswar-751001, Odisha.
......Applicant
VERSUS
1. Union of India, represented through the Secretary
to Govt. of India, Ministry of Personnel, Public
Grievance and Pension, Deptt. of Personnel &
Training, North Block, New Delhi-110001.
2. Union Public Service Commission represented
through its Secretary Dholpur House, Sahajahan
Road, New Delhi-110069.
3. State of Odisha represented through Chief
Secretary to Govt. of Odisha, Odisha Secretariat,
Bhubaneswar 751001, Dist. Khurda, Odisha.
......Respondents
For the Applicant : Mr. S.J.Mathews, Counsel
2 O.A.No. 260/00308 of 2021
For the Respondents: Mr. G.R.Verma, Counsel for UOI
Mr. S.B.Jena, Counsel for UPSC
Mr. J.Pal, Counsel for the State
Govt.
ORDER
Swarup Kumar Mishra, Member (J):
The case of the applicant falls in a short compass and is briefly stated that for filling up of 22 vacancies of IAS of the year 2019 by way of promotion from amongst the State Civil Service officers (SCS in short) of the State of Odisha in terms of IAS (Appointment by Promotion) Regulation, 1955, the name of the applicant along with other SCS officers was recommended by the Govt. of Odisha to UPSC. The selection committee meeting was held on 17.12.2020 for preparation of select list of 2019 for promotion to IAS of Odisha cadre against 22 vacancies. The recommendation of the meeting was approved by the commission on 16.03.2021 and thereafter on approval of the competent authority, the recommendation was given effect to by issuance of notification dated 26.03.2021 by the DoP&T. Out of the 22 SCS officers recommended, 2 persons could not be promoted due to currency of the penalty imposed at the end of the disciplinary proceedings initiated against them and pendency of proceedings against Shri Surath Chandra Mallick. It is the 3 O.A.No. 260/00308 of 2021 case of the applicant that since departmental proceedings were pending against three persons, their names could not have been considered and recommended for inclusion to IAS and that the provision embodied in clause 5(1) of Regulation 1955 restricts enlargement of the select list beyond substantive vacancies of the select year the list is limited to the number of vacancies; as a result of which the remaining three posts, which could not be filled up due to the aforesaid reasons, ought to have been filled up by the applicant, who is the second best SCS officer. In terms of the rules, the department ought to have convened review selection committee for filling up of the unfilled vacancies as he is the second best officer to the last selected and promoted SCS officer and, therefore, the unfilled vacancies are deemed to have been carried forward to the next year and accordingly the applicant ought to have been considered against the vacancies of 2019 as an eligible SCS officer. Hence, by filing the present O.A., the applicant inter alia seeks the following reliefs:
"(i) This Hon'ble Tribunal may be pleased to admit this application and;
(ii) This Hon'ble Tribunal may be pleased to direct the Respondent Nos. 1 and 2 to convene a review Selection Committee meeting for 4 O.A.No. 260/00308 of 2021 inclusion of name of the applicant in the select list for the year, 2019 for promotion to IAS as requested by the Respondent No.3 under ANNEXURE-A/10 and A/11 taking into account the ratio decided by the Hon'ble Central Administrative Tribunal, Principal Bench and Madras Bench shown at ANNEXURE-A/12 and A/13 within a stipulated period of time and;
(iii) Consequent upon inclusion of his name in the select list of the year 2019, further be pleased to direct the respondents to promote the applicant to I.A.S. against the vacancy year, 2019 with effect from the date of promotion of other 19 SCS officers i.e. under ANNEXURE-A/3 with all service benefits.
And pass any other order as this Hon'ble Tribunal deems fit and proper in the interest of justice."
2. Respondent No.2 (UPSC) filed its counter in which it has been stated that the Govt. of Odisha vide letter dated 03.07.2020 submitted proposal for preparation of selection list of 2019 for appointment of SCS officers by promotion to IAS of Odisha cadre in terms of IAS (Appointment by Promotion) Regulation 1955 (herein after called as Regulation, 1955) against 22 vacancies, in which the name of the applicant Sri Dilip Routrai was placed at Sl. No. 30 of the zone of consideration. The selection committee meeting was held on 17.12.2020 and considered 67 SCS officers for preparation of selection list of 2019 for promotion to IAS Odisha cadre against 22 vacancies in terms of 5 O.A.No. 260/00308 of 2021 clause 5(2) and 5(3) of Regulation, 1955 and prepared the select list wherein the names of Sri Ashok Kumar Nayak, Sri Biswa Mohan Rai and Sri Surath Chandra Mallick also find place. But, due to non-appointment of any SCS officer whose name find place in the select list due to any reason does not mean that the vacancy would occur for the same year. Such unfilled vacancy is carried forward to the select list of next year and is not given to next officer in the zone of consideration as per rules. It has been stated that the select list once prepared approved and acted upon cannot be modified. The officers who have been included provisionally in the select list have a chance to get appointed if other wise entitled to during the validity of the select list but non- appointment of any of the SCS officers included in the select list does not give right to the other eligible SCS eligible officers to get included in the select list for appointment as IAS. As the three officers named above could not be appointed due to the reasons mentioned above during the validity period, the said unfilled vacancies of the year 2019 were taken into consideration in preparing the select list of 2020. It has been submitted that the Govt. of Odisha vide letter dated 02.08.2021 submitted proposal for preparation of select list for the year 2020 for promotion to IAS of Odisha Cadre including the name of the applicant. 6 O.A.No. 260/00308 of 2021 Accordingly, the applicant was considered by the selection committee meeting held on 26.11.2021 for promotion to IAS cadre. To buttress their stand, the respondents have submitted that one Sri Gurmit Singh filed O.A. No. 060/01295/2017 challenging non-consideration of his case for promotion to IAS as per Regulation, 1955 before the Chandigarh Bench of the Tribunal. The said O.A. was disposed of on 01.12.2017 with direction to consider his case for promotion to IAS against the relevant year sought by the applicant. Thereafter, alleging non-compliance of the order, Sri Singh filed C.P. No. 60/15/2018 before the Chandigarh Bench wherein the Department, UPSC, filed counter stating that there is no provision for filling up of the unfilled vacancy by the SCS officers whose names did not find place in the select list of particular year. Accordingly, it has been stated that there being no illegality in the decision making process of the matter, this O.A. is liable to be dismissed.
3. Respondent No.3 (State of Odisha) has filed separate counter in which it has been stated that none of the juniors of the applicant was considered and promoted to IAS against the select panel of 2019. In terms of proviso 5(5) of Regulation, 1955, the name of SCS officers 7 O.A.No. 260/00308 of 2021 included in the select list shall be treated as provisional, if the State Govt. withholds the integrity certificate in respect of such an officer due to pendency of departmental of criminal case against such officer, whose name has been included in the panel list. Due to ongoing order of punishment and disciplinary proceedings, although the names of three persons were included and approved by the authority concerned, finally 19 SCS officers were promoted to IAS Odisha cadre against select list of 2019 vide notification dated 26.03.2021. As per Regulation 7(4), the select list shall remain in force till 31 December of the year in which the meeting of the selection committee was held with a view to prepare the select list under Sub Regulation 1 of Regulation 5 or upto 60 days of 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. In terms of proviso to Regulation 5(3), a member of the State Civil Service whose name appears in the select list (prepared for the earlier year) before the date of meeting of the committee and who had not been appointed in the service only because he was include (provisionally in the 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 56 years. There is no such 8 O.A.No. 260/00308 of 2021 provision in the rule to forward the proposal to the Central Govt. to appoint the applicant to IAS Odisha cadre against this select list of 2019 who has not been selected against the select list on the ground that he may never be eliglble to get promotion to Super Time Scale in IAS cadre unless he is promoted to IAS in the year 2019. Accordingly, Respondent No. 3 submitted that there being no illegality in the decision making process of the matter, this O.A. has no legs to stand and is liable to be dismissed.
4. Applicant has filed rejoinder inter alia stating therein that if the stand of the respondents that once the select list is published the same cannot be altered in any circumstances is accepted then the process of holding review selection committee meeting provided under rules is nonest in the eye of law and to establish that such a submission of the respondents is not in accordance with law, the applicant has placed reliance on the decision of the Tribunal in O.A. No. 521/2021 disposed of on 25.11.2021 (Surya Madhaba Panigrahi Vs. UOI & Ors). It has been stated that the respondents follows up its vexatious premise of the select list being set in stone with a juxtaposition. It has been stated that the very fact that inclusion of the three officers in the panel 9 O.A.No. 260/00308 of 2021 provisionally who could not be promoted due to ongoing punishment and disciplinary proceedings gives a right to the applicant to seek promotion in the select list of 2019. The zone of consideration in terms of rules is three times the number of vacancy and 66 names were taken into the zone of consideration to ensure filling up of 22 vacancies and not 19 vacancies. Thus, the unfilled vacancy ought to have been filled up by the SCS officers whose name placed below the 22 SCS officers, whose names appeared in the panel list prepared by the Commission. The selection committee was well aware of the ongoing punishment and disciplinary proceedings against the three SCS officers. Since panel was provisional due to non-appointment of the three candidates, the selection committee ought to have hold review DPC and revised the selection list in such a situation. It has been stated that the decision in the Gurmit Singh (supra) relied on by the respondents in their counter has no application in the present case as the fact of the said case is different to the present case. Hence, the applicant has prayed that since injustice was caused to him in the decision making process, the same needs to be reviewed by way of granting the relief prayed for in this O.A. 10 O.A.No. 260/00308 of 2021
5. Ld. Counsel for the applicant reiterated the stand taken in his pleadings by stating that the name of the applicant was included at Sl. No. 30 among the 67 SCS officers whose names were included in the zone of consideration for preparing the select list of 2019 to IAS of Odisha cadre. Three officers (Sri Ashok Kumar Nayak, Sri Biswa Mohan Rai and Sri Surath Chandra Mallick) were provisionally selected and placed in the select list of 2019 for filling up of 22 vacancies. Final select list consisting of 19 officers was notified by the Union of India on 26.03.2021 thereby leaving three unfilled vacancies of select list of 2019. Applicant submitted representation for inclusion in the select list, which was not given due consideration. It has been argued that the select list once prepared is not cast in stone and is subject to review and revision. Though, rule do not provide for review of select list, jurisprudence developed by the various Benches of the Tribunal and Hon'ble High Court the respondents ought to have respected and held the review DPC for considering the case of the applicant. In this regard, the applicant has placed reliance on the decisions of the Hon'ble Apex Court in Union Public Service Commission Vs. P.Harikumar & Ors., (2005) 11 SCC 589, and Syed Khalid Rizvi Vs. UOI & Ors, 1993 Supp.(3) SCC 575. It has been argued that vacancies arising in one year cannot be 11 O.A.No. 260/00308 of 2021 carried forward and merged with the vacancies of any subsequent year, especially when there is availability of suitably qualified candidates against the unfilled vacancies and, to justify this argument, Ld. Counsel for the applicant has placed reliance on the decision in the cases of G.Sreenivasa Rao & Ors. Vs. UOI, (1989) 3 SLR 648, Azimul Haque Vs. UOI & Ors, OA No. 4589/2017. Further, it was submitted that in the event of excluding the names of the officers wrongly included in the select list, the vacancies ought to have been filled up by the next eligible officer in the zone of consideration and, to strengthen this argument, Ld. Counsel for the applicant has placed reliance on the decision in the case of Dr. Vishram Singh Yadav Vs. UOI, 2004 (3) SLJ 263, CAT, Lucknow Bench. Accordingly, it has been submitted by the Ld. Counsel for the applicant that since the three persons included in the panel list were not promoted due to ongoing punishment and disciplinary proceedings, the applicant being the next eligible SCS officer in the zone of consideration ought to have been promoted to IAS Odisha cadre and, in alternative, it was argued that even if the vacancies were carried forward, the respondents ought to have prepared the select list yearwise instead of clubbing the vacancies and prepare the panel list. Hence, he has prayed for the relief sought in the O.A. 12 O.A.No. 260/00308 of 2021
6. On the other hand, Ld. Counsel appearing for both the respondents have submitted that the decisions relied on by the applicant in support of the relief claimed have no application to the present case as the facts and issues in all those cases are distinct and different to the present case/issue. Insofar as the merit of the matter is concerned, it has been submitted that the process for appointment of State Civil Service Officers to the IAS under IAS (Appointment by Promotion) Regulations, 1955 initiates with determination of year wise vacancies. Once the vacancies are determined, the State Government is required to make available the relevant service records of eligible State Civil Service Officers who fall within the zone of consideration to the Union Public Service Commission. After the Select List is approved by the Union Public Service Commission, only thereafter the appointments of those State Civil Service Officers who are included unconditionally in the Select List are notified by Government of India subject to and in accordance with the provisions contained in Regulation 9 of the Promotion Regulations. They further argued that the Regulation 5(1) prescribes, inter alia, that the promotion would be considered as against substantive vacancies of the year in which the meeting is held. The substantive vacancy includes the vacancies which have earlier been 13 O.A.No. 260/00308 of 2021 determined as anticipated vacancies. However, the substantive vacancy is to be determined only after taking into consideration the vacancy remained unfilled in a particular year on account of officers who have been selected but no appointment order could be issued for one reason or the other. Thus, the meaning thereby that such vacancies which remained unfilled would have to be carried forward and added to already determined vacancies so as to find out the total vacancies as on 1st January of the year for which the selection committee is meeting. They further referred to the provision of Regulation 7(4) in which it has been provided 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 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, 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 or before the date of meeting of the next selection committee, whichever is 14 O.A.No. 260/00308 of 2021 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 consider 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. Since in the instant case, the validity of the panel list prepared and approved by the Commission expired on 31 st December, 2019, the unfilled vacancies obviously and axiomatically carried forward to the next year and considered the eligible SCS officers to IAS. Ld. Counsel for the respondents submitted that rules does not provide for review of the select list and the respondents having acted upon in accordance with the rules and regulations, there is hardly any scope for judicial interference in the matter. Accordingly, Ld. Counsel for the respondents have prayed for dismissal of this O.A.
7. The Indian Administrative Service (Appointment by Promotion) Regulations, 1955 were framed in terms of Sub-Rule 1 of Rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954 (in short, the Rules of 1954). Rule 8 and Rule 9 of the Rules of 1954 read as under:-
8. Recruitment by promotion or selection for appointment to State and Joint Cadre:-
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(1) The Central Government may, on the recommendations of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the Central Government may, after consultation with the State Governments and the Commission, from time to time, make, recruit to the Service persons by promotion from amongst the substantive members of a State Civil Service.
8(2) The Central Government may, in special circumstances and on the recommendation of the State Government concerned and in consultation with the Commission and in accordance with such regulations as the Central Government may, after consultation with the State Government and the Commission, from time to time, make recruit to the Service any person of outstanding ability and merit serving in connection with the affairs of the State who is not a member of the State Civil Service of that State [but who holds a gazetted post in a substantive capacity].
8(3)(a) Where a vacancy occurs in a State Cadre which is to be filled under the provision of this rule, the vacancy shall be filled by promotion of a member of the State Civil Service or, as the case may be, by selection of any other officer serving in connection with the affairs of that State.
(b)Where a vacancy occurs in a Joint Cadre which is to be filed under the provision of this rule, the vacancy shall subject to any agreement in this behalf, be filed by promotion of a member of the State Civil Service of any of the States constituting the group or as the case may be, by selection of any other officer serving in connection with the affairs of any such State(s).
9. Number of persons to be recruited under Rule 8 9(1) The number of persons recruited under Rule 8 in any State or group of States shall not, at any time, exceed 33 1/3 per cent of the number of senior posts under the State Government, Central Deputation Reserve, State Deputation Reserve and Training Reserve in relation to that State or to the group of States, in the Schedule to the Indian Administrative Service (Fixation of Cadre strength) Regulations, 1955.
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Provided that the number of persons recruited under sub-rule (2) of the Rule 8 shall not at any time exceed fifteen per cent of the number of persons recruited under Rule 8.
Explanation: For the purpose of calculation of the posts under this sub-rule, fractions, if any, are to be ignored.
9(2) Notwithstanding anything contained in this rule, in relation to the State of Jammu and Kashmir, the number of persons recruited under sub-rule (1) shall not upto 30 April 2002, exceed at any time, fifty per cent of the number of senior posts under the State Government, central deputation reserve, state deputation reserve and the training reserve in relation to that State in the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955.
The UPSC was required to conduct exercise for making promotions in terms of Regulation 5 second proviso and a selection list was required to be prepared year-wise as per regulation 7 third proviso. Regulations 5 and 7 of Indian Administrative Service (Appointment by Promotion) Regulation, 1955 are quoted as under:
"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 Civil Service as are held by them to be suitable for promotion to the Service. The number of members of the State Civil 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.17 O.A.No. 260/00308 of 2021
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 Civil 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 Civil 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 Civil Service;
5(2) The Committee shall consider for inclusion to the said list, the cases of members of the State Civil Services 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 field 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 Civil Service unless, on the 18 O.A.No. 260/00308 of 2021 first day of January of the year for which the Select List is prepared he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government.
Provided also that in respect of any released Emergency Commissioned or Short Service Commissioned Officers appointed to the State Civil 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 Collector 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 Civil Service of a constituent State, by the Government of that State.
5(2A) [Omitted] 5(3) The Committee shall not consider the cases of the members of the State Civil 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 Civil 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 fifty four years:
Provided further that a member of the State Civil 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 19 O.A.No. 260/00308 of 2021 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 Civil Service who had been included in an earlier Select List and
(a) had expressed his unwillingness for appointment to the Service under regulation 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 10.
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 Goodand the order of names inter-se within each category shall be in the order of their seniority in the State Civil Service.
Provided that the name of any 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 20 O.A.No. 260/00308 of 2021 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 addition to the normal size of the select list determined by the Central Government for such year.
Explanation 1: 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 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.
5(7) Deleted. 7. Select List: (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 Civil Service.
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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 the 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, 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 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 Civil Service or otherwise being approved by the Central Government as the State Civil 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 Civil 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 22 O.A.No. 260/00308 of 2021 the date of approval of the select lists by the Commission under this regulation, whichever is later.
7(5) Omitted."
In view of the position of the Regulation and the facts that there is no violation of any of the provision of Regulation, it goes without saying that the steps taken by the respondents are in accordance with rules/regulations, 1955. Now, it is to be examined as to whether the steps taken by the respondents are in violation of the law laid down and relied on by the applicant.
In the case of Union Public Service Commission Vs. P.Harikumar & Ors., (2005) 11 SCC 589, - relates to promotion of State Police Service to IPS wherein the applicant Sri P.Harikumar and Others could not be promoted as gradings in their APR were downgraded by the selection committee which was found illegal and accordingly direction was issued for reconsider the case of the applicants therein, which is not the case in hand. Hence, the above decision is of no help of the applicant.
In the case of Syed Khalid Rizvi Vs. UOI & Ors, 1993 Supp.(3) SCC 575,- the case relates to a dispute of inter-se seniority between the India 23 O.A.No. 260/00308 of 2021 Police Service Direct Recruits and U.P. State Police Service, the facts and circumstances of both the cases are distinguishable.
In the case of Virender Kumar Verma Vs. UOI & Ors. in OA 1316/HR/2001, the Chandigarh Bench of this Tribunal dismissed the O.A. holding that select list prepared by the Selection Committee and finally approved by the Commission holds good and remains operative till the meeting of the next Selection Committee to draw up a new selection panel is held meaning thereby the earlier select list shall remain alive and operative only till the date on which meeting of the next Selection Committee takes place. The earlier select list becomes inoperative on the date of the meeting of the subsequent Selection Committee. Hence, this case is of no help to the applicant.
The Judgment passed by the CAT, Principal Bench and Madras Bench under Annexure-A/11 and A/12 respectively of this O.A. are also of no help as the applicants in those cases had filed the O.A. seeking inclusion of their names in the select panel.
In the case of N.R.Yadav Vs. UOI & Ors., OA 509/1996, the Jaipur Bench of the Tribunal, the facts and issue is found to be totally different 24 O.A.No. 260/00308 of 2021 and distinct and therefore the said decision is not at all applicable in the present facts and circumstances of the case.
8. We also find that none of the decisions cited by the applicant have dealt with the issue involved in the present case and, therefore, the same have no application at all to the case in hand. It is also seen that the applicant has produced a copy of the letter of the UPSC dated 14.09.2021 communicating the result of the representation submitted by him and others but the applicant did not challenge the said order of rejection in the present O.A. No provision exists in the Regulation for keeping the names in wait list. It is not out of place to mention that in terms of Regulation 7(4) the Select List remains in force till the 31st day of December of the relevant 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, finally approved under sub-regulation (2), whichever is later. This is because within such time any of the eligible candidate can be appointed/promoted to IAS and the vacancies which remained unfilled would have to be carried forward and added to already determined 25 O.A.No. 260/00308 of 2021 vacancies so as to find out the total vacancies as on 1st January of the year for which the selection committee is meeting. The applicant did not challenge the aforesaid provision to be ultra vires if it is contrary to law.
Therefore, we do not find any infirmity in the decision making process of the matter by the respondents department also in law.
9. Viewed the matter from any angle, we see no justifiable reason warranting judicial intervention in the O.A. Thus, the O.A. is accordingly, dismissed. There shall be no order as to costs.
(SWARUP KUMAR MISHRA) (DEVENDRA CHAUDHRY) Member (Judicial) Member (Admn.) RK/PS