Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary To ... on 9 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.258-PB-2010 Pronounced on: 09.10.2012 Reserved on :24.09.2012 CORAM : HONBLE MR. JUSTICE S.D. ANAND, MEMBER (J) AND HONBLE MR. RANBIR SINGH, MEMBER (A) R. L. Bhagat son of Late Shri Amar Nath aged 55 years, Deputy Inspector General of Police, Vigilance Bureau, Zone Jalandhar, Punjab. . Applicant By : Mr. V.K. Sharma, Advocate. Versus 1. Union of India through the Secretary to the Government of India, Ministry of Home Affairs, North Block, New Delhi. 2. Secretary, Government of India, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, North Block, New Delhi. 3. Union Public Service Commission through its Secretary, Dholpur House, Shahjahan Road, New Delhi. 4. State of Punjab through the Chief Secretary to the Government of Punjab, Punjab Civil Secretariat, Chandigarh. 5. Shri Jagdish Kumar, IPS S/o Shri Ram Lal, Inspector General of Police, Computer & Telecommunications, Pb. C/o Director General of Police, Punjab, Police Headquarters, Sector 9, Chandigarh. 6. Ishwar Chander S/o Sh. Parkash Chander, IG Panjab Police Stationed at PAP, Jallandhar. 7. Parampal Singh, IPS,S/o Sh.HarpalSingh, DIG (Border Range), Amritsar. 8. Rajinder Parshad Mittal, IPS, S/o Sh. Amar Nath, DIG (Ferozepur Range), Punjab. 9. Nirmal Singh Dhillon, IPS S/o Sh. Dalip Singh, DIG, (Faridkot Range), Punjab, Chandigarh. By : Mr. G.S. Sathi, Advocate for R.No.1. Mr. A.L. Vohra, for Respondent No.1&2. Mr. O.S. Battalvi, Special Sr. Standing counsel with Mr. B.B. Sharma, for R.No.3. Mr. Reeta Kohli, counsel for R.No.4. Mr. Gurminder Singh, counsel for Respondents No.5to9. Respondents O R D E R
JUSTICE S.D. ANAND, JM There has been all along relentless focus, in the law announced from time to time at the level of the Honble Apex Judicial dispensation and other adjudicatory forums constitutionally authorized in the relevant behalf, to stress the immediacy of the need to institutionalize the methodology of early ironing out of the intra-service creases pertaining to the seniority. The stress would be all the more needed, if the subjects are members of a disciplined force. Litigating Members of the Force or the likes of them, unsure of their placement in the seniority or the denial of what they perceive to be their due, would appear to live in a vestibule of un-certainty. The vicissitudes of uncertain hierarchical movements, psychologically and practically tyrannical in character, have their toll on the psyche of the incumbents, we do feel.
2. The applicants, as also the private respondents, were directly recruited as Deputy Superintendents of Police (DSP for short) at the same selection process held in the year 1985. Their consideration for induction into Indian Police Service (IPS for short), at the hands of the selection committee constituted under Regulation 3 of the Indian Police Service (Appointment by Promotion) Regulations, 1995 came about in the year 1995. The minutes of the Committee exercise were circulated on 7.3.1995.Though the inter-se placement of the applicant and the private respondents was at Sr. No. 4,6,5, 8, 9, 10and 12 respectively, all of them were given 1991 as the year of allotment. The determination of that placement and the year of allotment came about in terms of rules 3 and 4 of the Indian Police Service (Regulation of Seniority) Rules, 1988.
3. The applicant was confirmed, as a Member of the IPS, w.e.f. 25.7.1996. The confirmation of the private respondents came about, vide Gazette Notification dated 29.10.1998.
4. The applicant, as also the private respondents, were placed in the selection grade w.e.f. 1.1.2004, on completion of 13 years service in the IPS cadre. The grant of selection grade w.e.f. indicated date was announced vide orders dated 31.10.2005 (A-6). That documentation indicates the placement of the applicant at Sr. No.6; while names of the private respondents are recorded therein from Sr. No. 7 onwards.
5. The applicant and also the private respondents were promoted as Deputy Inspector Generals of Police, vide orders dated 24.4.2006.
6. It was thereafter that respondent no. 4 issued notice dated 12.3.2008 announcing its intention to consider re-fixation of the inter-se seniority of the applicant and private respondents as Deputy Superintendents of Police. Placement, proposed to be accorded to the applicant herein, was below the private respondents.
7. The applicant responded to the show cause notice by averring that after his induction into the IPS cadre and the allotment of 1991 as year of allotment as also the grant of selection grade and promotion (as DIG) to him on completion of 13 and 14 years respectively, any change/notification in the inter-se placement of his and the private respondents was incompetent.
8. In negation of the resistence offered, the alteration in the State Police Service did come about (vide order dated 22.9.2008 Annexure A-8), to the detriment of the applicant.
9. The applicant, thereafter, filed a Civil Writ Petition (No.17880/2008) to obtain the invalidation of the order dated 22.9.2008 (A-8) vide which the seniority placement aforementioned came to be determined. That Writ Petition was dismissed by the High Court, vide orders dated 29.5.2009. An LPA (No.516/2009) filed by the applicant too was dismissed on 29.5.2009 clarifying, however, that order impugned in the writ petition is confined to the cadre of Deputy Superintendent of Police, which was rightly corrected by the order impugned in the writ petition.. It was further held by the LPA Bench that for the purpose of grant of seniority in the IPS cadre, the Government of India may decide the question of seniority as per the prevalent law.
10. The SLP against the orders granted by the LPA Bench is pending consideration at the hands of the Honble Apex Judicial dispensation. The order granted therein is that Any promotions which may be made in future, shall be subject to the result of the present petition.
11. Though the applicant as also the private respondents have concededly come to be promoted as Inspector Generals of Police, in the meantime. The applicant has a grievance that his placement in that consideration, as junior to the private respondents, is invalid in view of the fact that no change in the seniority placement in the IPS cadre has come about at the hands of the Competent Authority. The essential grievance raised by the applicant herein is vis-`-vis respondent no. 5 who has been promoted to the rank of IGP in the Pay Band of Rs.37,400-67,000, with grade pay of Rs.10,000/-, with immediate effect. The claim applied for is that the applicant too ought to be granted promotion to the IGP rank at-least w.e.f. the date accorded to respondent no. 5, who is junior to him.
12. The impleadment of the private respondents 6 to 9, as party respondents, came about on a plea filed by them. In so far as the O.A. is concerned, the applicant had restricted the relief applied for qua the private-respondent no. 5 only. The learned counsel for the applicant clarified during the course of hearing that the restriction qua the grant of relief was on account of the facet that it was private-respondent no. 5 only who had been promoted as IG till the filing thereof and the promotions of the other private-respondents to that rank came about during the pendency thereof. However, no independent counter came to be filed by the private respondents No,. 6 to 9. During the course of hearing, they reiterated the stance averred by the private respondent no.5.
13. The accuracy of the above fact-based averments was not contested on behalf of the respondents, who, however, asserted the correctness of the impugned orders including the order regarding re-fixture of seniority as between the applicant and the private respondent in the cadre of DSP and also the grant of promotion to respondent no. 5, by treating him as senior to the applicant.
14. Respondent No. 5 also reiterated the stance averred by the State of Punjab. It was further averred that a writ Petition (No. 110/2010), filed by the applicant under Article 32 of the Constitution of India having been dismissed by the Honble Apex Court, the present O.A. is not maintainable.
15. Respondent No. 1 Govt. of India, in a way, supported the applicant by averring that any modification in the seniority of officers appointed to Indian Police Service by promotion has to be determined by the Central Govt. Respondent No. 1 asserted that the State of Punjab had modified the impugned seniority list only qua the placement of the applicant and private respondents in the cadre of DSPs. Insofar as the modification ordered by the Govt. of Punjab in IPS is concerned, it was averred, the change was unauthorized because it (change) could have come about only at the hands of the Central Govt. in terms of the provisions of Rule 3(3) (ii) of the Indian Police Service (Regulations of Seniority Rules) 1988. The relevant plea taken by Respondent No. 1 is extracted hereunder:-
In this regard it is humbly submitted that seniority of an officer appointed to Indian Police Service by promotion is fixed by the Central Government under the provisions of the Rule 3(3)(ii) of the Indian Police Service (Regulation of seniority) Rules, 1988 which is reproduced in para 5.3 above, keeping the inter-se position of officers in the Select Lists prepared for the purpose and duly approved by the UPSC intact. Until and unless there happens a change in the recommendations of the Selection Committee through which officers are appointed to IPS after approval of the UPSC for the same, their inter-se seniority cannot change. The State Government, which has allegedly modified the seniority of the applicant in Indian Police Service by modification of his seniority in SPS by a retrospective date and after his appointment to IPS in pursuance of some Court orders, has not acted in conformity with the rules. The implication is that the situation in which someone who was junior to the applicant in SPS before such modification of the Gradation List and who has now become senor to him in SPS, does not lead to respective modification in the seniority within Indian Police Service. (underlining for emphasis in the context of its relevance to the plea raised by the applicant).
16. The stance adopted by the UPSC- Respondent No. 3 would be evident from the contents of para 9.2 of the counter which is extracted hereunder:
Since the subject matter of this OA pertain to promotion within the IPS for which the Commission are not consulted, the Commission had decided not to file a reply in the O.A. The grievance of the applicant raises an issue regarding the authority of the State Government to change/modify the seniority of an IPS officer on the basis of change in his seniority in SPS retrospectively and after his appointment to the IPS. As already submitted by the govt. of India in their written statement dated 15.6.2010 in this case, the seniority of an officer appointed to the IPS by promotion is fixed by the Central Government keeping the inter-se position of the officers in the Select List prepared for the purpose and duly approved by the UPSC intact. Until and unless there is a change in the recommendations of the Selection Committee, their inter-se seniority cannot change. As further stated by the govt. of India, the State Government which has allegedly modified the seniority of the applicant in the IPS by modification of his sonority in the SPS retrospectively and after his appointment to the IPS, has not acted in conformity with the rules. The Govt. of India have also stated that there is no change/alteration of seniority of the applicant in the records of the Ministry of Home Affairs, Govt. of India which is also the cadre controlling authority of the Indian Police Service Officers, on the basis of the alleged act of the State Government modifying the seniority of the SPS officers retrospectively. As reiterated by the Govt. of India, any change in the seniority of promotee officers of the IPS of Punjab cadre will essentially involve a review of the Select List. In the instant case, as o the date of the alleged revision of seniority of IPS officers of Punjab Cadre by the State Government, there was no review of the Select List on 1994-95 and as such, no revision in he seniority of the applicant.
17. At the very outset of the hearing, the learned counsel appearing on behalf of the respondents No. 5 to 9 raised a preliminary objection to the very maintainability of this O.A. on the premise that a Writ Petition filed by the applicant herein under Article 32 of the Constitution of India came to be dismissed by the Honble Apex Court.
18. The plea was resisted by the learned counsel for the applicant who argued that dismissal of the writ petition aforementioned does not debar filing of an O.A.
19. We have not been able to persuade ourselves to find any force in the plea raised on behalf of respondent no.5. Annexure A-18, is a copy of the order granted by the Honble Apex Court in the Writ Petition filed by the applicant under Article 32 of the Constitution of India. The Honble Apex Judicial Dispensation disposed it of by making observations which are extracted hereunder :-
No ground is made out for exercise of our jurisdiction under Article 32 of the Constitution. The writ petition is dismissed accordingly.
20. It would be apparent from a perusal of extraction in the preceding para, that the Honble Apex Court did not touch the merits of the controversy. It just refused to entertain the petition in exercise of jurisdiction under Article 32 of the Constitution of India. Our attention has not been drawn towards any judicial pronouncement which, in such an eventuality, would forbid entertainment of an O.A. There are Constitutionally announced contours, within which jurisdiction under Article 32 of the Constitution of India, can be exercised. The discretion, though vast in character, vests in the Honble Apex Judicial dispensation. The mere refusal, however, on the part of the Honble Apex Court to entertain a petition under that Article would not, by any stretch of interpretation, impede entertainment of an O.A. The plea raised qua the maintainability of the O.A. shall stand negatived accordingly.
21. The learned counsel for the applicant, then, argued that the grant of promotion to the rank of Inspector General of Police to him and the private respondents notwithstanding, he has a subsisting grievance with regard to his lower placement in the promotion list, particularly when the State of Punjab could not have altered the seniority (of the applicant and private respondents) in IPS cadre.
22. The learned counsel, appearing on behalf of the private respondents and Respondent No.4, argued the contrary by averring that the variation of the seniority in the cadre of Deputy Superintendents of Police, would ipso-facto, have relevant consequential effect on the determination of seniority in the IPS cadre.
23. We find the response offered on behalf of the private respondents and Respondent No.4 to be denuded of merit. The reasons therefor are as under.
24. The facts available on record indicate a fairly unenviable scenario. In the disposal of the LPA, the learned Division Bench of the High Court made it clear that the affirmation of the order (granted by the learned Single Bench) at the hands of Division Bench is confined to the cadre of Deputy Superintendent of police, which was rightly corrected by the order impugned in the writ petition. It minced no words in further announcing that it is the Government of India which may decide the question of seniority (of the applicant and the private respondents) in the IPS cadre.
25. The observations made by the learned LPA Bench are a reiteration of the rule-formulation itself i.e. Indian Police Service (Regulation of Seniority) Rules, 1988, clause 4 whereof is extracted hereunder:-
4. Inter-se Seniority of the Officers. The inter-se Seniority of the officers who are assigned the same year of allotment shall be in the following order and in each category the inter-se seniority shall be determined in the following manner: -
(i) direct recruit officers shall be ranked inter-se in the order of merit as determined in accordance with rule 10 of the Indian Police Service (Probation) Rules, 1954;
(ii) Promotee officers shall be ranked inter-se in the order in which their names are arranged by the Commission for the purpose of appointment to the Service by promotion.
26. It is further apparent from the counter filed by the Union of India that it too had informed the State Government concerned that the determination of the inter-se seniority of the officers under reference (in the IPS Cadre) having come about with the approval of the UPSC, no change there under could come about without the concurrence of the UPSC. The counter further proceeds to state that as per the communication received from the Government of Punjab, it modified the seniority of its SPS officer with order No.1/99/88-1H3/2347-60 dated 26.09.2008 of the State Government revising instructions with regard to fixation of seniority of direct recruitee DSPs. Thereafter the State Government requested to Government of India vide its letter No.1/75/2008-3H(1)/2321 dated 08.07.2009 to make consequent changes in the seniority of IPS officers of Punjab. The Government of India, vide its letter No. 1-14013/40/2009-IPS.I dated 17.08.2009 told the State Government that the Central Government had already determined the inter-se-seniority of the officers appointed from the select list of 1994-95 for Punjab Cadre of IPS as approved by the UPSC and no change in the order of names in that select list had been intimated subsequently by the UPSC..
27. The Union of India further averred, in the course of the counter, that the State Government concerned had not acted in conformity with the rules by modifying the seniority of the applicant herein on the basis of the modification of the seniority in the State Police Service w.e.f. a retrospective date but after his appointment to the IPS. The counter further proceeds to state that seniority of an officer appointed to Indian Police Service by promotion is fixed by the Central Government under the provisions of the Rule 3 (3)(ii) of the Indian Police Service (Regulation of Seniority) Rules, 1988 which is reproduced in para 5.3 above, keeping the inter-se position of officers in the Select Lists prepared for the purpose and duly approved by the UPSC intact. Until and unless there happens a change in the recommendations of the Selection Committee through which officers are appointed to IPS after approval of the UPSC for the same, their inter-se seniority cannot change. The State government, which has allegedly modified the seniority of the applicant in Indian Police Service by modification of his seniority in SPS by a retrospective date and after his appointment to IPS in pursuance of some Court orders, has not acted in conformity with the rules. The implication is that the situation in which someone who was junior to the applicant in SPS before such modification of the Gradation List and who has now become senior to him in SPS, does not lead to respective modification in the seniority within Indian Police Service.
28. In reiteration of the stance indicated in the course of the extraction in the preceding para, the Government of India reiterated the rule-based position by making certain averments in the course of para 7.4 of the counter which, too, are extracted hereunder :-
It is further submitted that there is no change / alteration of seniority of the applicant in the records of the Ministry of Home Affairs, Government of India (which is also the Cadre Controlling Authority of the officers of the Indian Police Service) on the basis of the alleged act of the State Government modifying the seniority of its SPS officers by a retrospective date. It is re-iterated that any change in seniority of promotee officers of IPS cadre of Punjab will essentially involve review of the Select List and approval of the UPSC to the same. However, as preparation and finalization of a particular Select List or review of the same is a prime concern of the UPSC and the State government, it is for them to make effective submissions in this case. Therefore, detailed submissions to be made by the Union Public Service Commission and the Government of Punjab may please be referred to.
29. It is further apparent, from a perusal of Annexure R-5/5, that respondent no. 5 herein had filed a COCP No.1861 of 2009 (in CWP No.17880 of 2008). The order granted by the learned Single Bench therein is extracted hereunder :-
Counsel for the Union Public Service Commission, respondent no. 3 states, on instructions that they would review the select list of 1994-95 for promotion to the IPS cadre, subject to the outcome of SLP No.36313-15 of 2009.
In view of the statement made by counsel for the Union Public Service Commission, respondent no.3, counsel for the petitioners does not press the present petition at this stage.
The present petition is disposed of as infructuous. Rule is discharged. It is expected that respondent no. 3 shall pass appropriate orders expeditiously in accordance with their statement
30. A perusal of the extracted order would indicate that the Union Public Service Commission had announced that the select list for 1994-95 would be reviewed subject to outcome of SLP No.36313-15 of 2009. It was In the light of that undertaking that the COCP was not pressed by the petitioners therein.
31. That no such review (by the UPSC) has come to be undertaken till date is beyond the pale of controversy. In this context, it may be noticed that, even during the course of hearing of this O.A., a similar situation had surfaced on 9.5.2011. We had called upon the learned counsel appearing on behalf of the UPSC to indicate the circumstances under which the UPSC has not honoured the undertaking, particularly when the UPSC persuaded the Punjab & Haryana High Court to discharge the notice in the COCP by giving an undertaking to the effect that the review of the Select List shall be undertaken. By noticing that the learned Single Bench had also indicated an expectation that appropriate orders shall come about expeditiously, we required the UPSC to place on record an affidavit filed by the senior most Administrative Functionary of the UPSC in the relevant behalf. In that order, we indicated the facts which had impelled the grant thereof. The observations made by us therein are extracted here under :-
We feel persuaded to do so in view of categorical (and unanimous too) averment made by the learned counsel for the applicant and also the private respondents that they have throughout been crying hoarse for the relevant determination at the hands of the UPSC and also have a feeling that the dust will settle only after that determination comes about because it is then only that the parties would be put in the know of what exactly weighed with the competent authority.
32. The relevant affidavit came to be filed on 4.7.2011. In the course thereof, the UPSC did not dispute the factual scenario indicated in the course of the preceding para of this order. While conceding the factum of the undertaking given by its learned counsel on 8.3.2010 (Annexure R-5/5), it avers that it refrained from undertaking the review exercise for want of a specific direction in the course of order dated 29.5.2009 (in CWP No.17880 of 2008 filed by the applicant herein) and also because of pendency of a CWP (No.12206/2005) filed by Shri G.S. Bhullar, an officer of State Police Service wherein the High Court had directed the finalization of the inter-se seniority of the State Police Service officers of the State of Punjab. The UPSC felt that in case a Review Selection Committee Meeting was required after finalization of the seniority list in compliance with the order dated 10.4.2008, a complete review of the Select List prepared till date might not be necessary and only case specific reviews might be required in cases where senior officers (who were still in service) were overlooked.
33. The affidavit further announces certain developments which had taken place thereafter. It refers to the grant of orders dated 17.12.2009 by the Honble Apex Court in SLP No.3613-15 of 2009 wherein status quo had been ordered to be maintained. The Honble Apex Court lifted the stay on the promotions pursuant to the revised seniority list, vide orders dated 5.4.2010 in SLP No.3613-15-15/2009. The deponent, on behalf of the UPSC, on point of fact, furthers avers that State Government which has allegedly modified the seniority of the applicant in the IPS by modification of his seniority in the SPS retrospectively and after his appointment to the IPS, has not acted in conformity with the rules.
34. The following factual scenario surfaces from a perusal of the pleadings of the parties / documentation-based stances raised by the parties.
35. Though the challenge raised by the applicant to the validity of the modification of the seniority list in the DSPs cadre, as between him and the private respondents, was negatived by the learned Single Judge and that finding was affirmed by the learned LPA Bench, the latter did categorically announce that the finding upholding the notification ordered in the seniority list of DSPs was confined to the seniority in the State Police Service and that the change, if any, in the Indian Police Service cadre to which the applicant as also the private respondents had been appointed by way of promotion had to come about at the hands of the Government of India.
36. A COCP (No.1861 of 2009), filed by the private respondent herein came to be disposed of as infructuous on an instructed undertaking on behalf of the U.P.S.C. that they would review the select list of 1994-95 for promotion to the IPS cadre, subject to the outcome of SLP No.36313-15 of 2009). It was in view of that undertaking that the learned counsel for the applicant therein did not press the present petition at this stage. While disposing it of, the learned Single Judge expected that respondent No. 3 shall pass appropriate orders expeditiously in accordance with their statement.
37. It is further apparent from a perusal of the relevant rule-formulation, any change in the seniority of the members of the I.P.S. cadre can validly come about at the hands of the Government of India, which (change) has to be compulsively preceded by a consideration in the relevant behalf by the U.P.S.C. which has a Selection Committee in place therefor. The undertaking given in (COCP No.1861/2009 in CWP No.17880/2008), on behalf of the U.P.S.C. and the so conceded non-honouring thereof till date not withstanding, the impenerable rule-based inference is that no change in the determination of senio1rity, as between the applicant as also the private respondents herein, has validly come about in so far as the IPS cadre, of which they are members, is concerned.
38. In that view of things, the determination of seniority in the State Police Service cadre to the detriment of the applicant (though upheld in CWP No.17880/2008 and LPA No. 516/2009) does not validate the dilution of his seniority in the IPS cadre.
39. We would, accordingly, allow the O.A. and invalidate Annexure A-1 and the consequential outcome thereof to the extent it places the applicant at a junior pedestal vis-`-vis the private respondents.
40. In view, however, of the consensual announcement during the course of hearing that the applicant and the private respondents are holding the placement as Inspector General of Police, the quashment of Annexure A-1 would not affect their practical positioning rank-wise. The placement of the applicant therein would, however, be higher in the hierarchical status as against the private respondents.
41. The parties shall bear their own costs of the cause in the facts and circumstances of the case.
42. Disposed of accordingly.
(JUSTICE S.D. ANAND) MEMBER (J) (RANBIR SINGH) MEMBER(A) PLACE: CHANDIGARH DATED: 09.10.2012 HC* 1 O.A.NO.258-PB-2010