Andhra HC (Pre-Telangana)
Union Public Service Commission, New ... vs T. Yoganand And Ors. on 5 October, 2001
Equivalent citations: 2001(6)ALD555
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. These writ petitions involving common questions of fact and law were taken up for hearing together and are being disposed of by this common judgment.
2. The respondents filed various Original Applications before the Central Administrative Tribunal for the following reliefs:
"To call for records relating to and connected with the select list of 1999 for promotion of State Police Service Officers to Indian Police Service cadre of Andhra Pradesh and quash the same declaring the same as arbitrary, illegal, discriminatory offends Articles 14 and 16 of the Constitution of India, against Statutory Regulations and Regulations and principles of Law and pass such other and necessary orders as the Hon'ble Tribunal may deem fit and proper under the circumstances of the case".
Background facts:
3. The fact of the matter, shorn of unnecessary details, is as follows:
4. The original applicants- unofficial respondents were direct recruit Deputy Superintendents of Police (Dy.S.Ps), a category II post in A.P. Police Service. Seniority list in Dy.S.P. cadre was prepared in the year 1982. Dy.S.Ps questioned the said seniority list in OA Nos. 5841 and 5974 of 1993, 4977 and 6506 and 1994 and the learned Central Administrative Tribunal in its judgment and order dated 7-6-1995 directed the concerned respondents therein to prepare seniority list of direct recruit and promotee Dy.S.Ps. within the time stipulated therefor upon following the guidelines provided therein. Allegedly the said judgment has attained finality.
5. The 1987 batch direct recruit Dy.S.Ps. were appointed under G.O. Ms. No. 363, Home (Police-E) Department dated 20-8-1987. Their probation commenced from 7-9-1987 and the same was completed. They have become full members of service with effect from 7-8-1987. However, few Inspectors of Police, who were said to be juniors to 1987 batch direct recruit Dy.S.Ps., were promoted as Dy.S.Ps. On or about 12-9-1998 the Government of Andhra Pradesh issued G.O. Ms. No. 261, Home (Police-E) Department notifying the inter se seniority list of direct recruit and promotee Dy.S.Ps. Allegedly therein, the promotee Dy.S.Ps. were favoured. The affected parties questioned the said, seniority, list by filing Original Applications and the matter is, however, pending before this Court vide WP Nos. 20078 of 1999 and batch.
6. It is not in dispute that promotion to the IPS cadre Dy.S.Ps is permissible in terms, of Indian Police Service (Appointment by Promotion) Regulations. Promotions to the IPS cadre are governed by the regulations. Regulation 3 of the Regulations provides for constitution of a Select Committee for the said cadre. Regulation 5 provides for preparation of list of suitable officers from the State Police Service as are held by the Select Committee to be suitable for promotion to the next higher service. The said list is to be forwarded by the State Government to the Union Public Service Commission (UPSC), as approved selected list from the eligible members of the State Police Service. On the recommendation of the State Government appointments to the service are made by the Central Government.
7. The applicants-unofficial respondents have raised a grievance that if the regulation are followed, they are only eligible to be considered for such promotion, as they had already completed eight (8) years of service in the State Police Service.
8. In the IPS cadre six vacancies arose in 1996-97 i.e., for the period from 1-4-1996 to 31-3-1997. Four (4) vacancies arose in 1998 i.e., from 1-1-1998 to 31-12-1998 and three (3) vacancies arose in 1999. However, the Committee met only on 22-12-1999 wherein all the thirteen (13) vacancies were considered and the candidature of sixty officers has been taken into consideration.
9. Questioning the said mode of selection, the applicants-unofficial respondents approached the learned Tribunal by filing Original Applications. Before the learned Tribunal, the applicants contend that the authorities have violated Regulation 5 in four ways, namely :--
(i) Under Regulation 5(1) it is the mandatory obligation to fill up the vacant posts as and when they arose in every year but this obligation was breached from 1996-97;
(ii) The prescribed zone of consideration of 1:3 was enlarged in violation of the rules;
(iii) Even in 1999 the DPC should have prepared the year-wise lists depending upon the vacancies that arose in the respective year considering the eligible officers in a particular year out of the zone of consideration of 1:3;
(iv) But all the vacancies arose from 1996-97 were clubbed and they are now filled up from out of the 60 officers, thus violating the regulations; and
(v) The zone of consideration included over-aged officers, again violating Regulation 5(2) of the Regulations".
10. The State Government, UPSC and the Central Government supported the said selection and inter alia contended that for various reasons the Selection Committee could not meet every year.
11. In the mean time, however, selected list had been prepared and some appointments have been made.
12. The learned Tribunal allowed the said Original Applications holding:
"20. As a result of our foregoing discussion, we hold that the respondents had committed breach of Regulation 5(1) of the IPS (Appointment by Promotion) Regulations, 1955 in not-holding the Select Committee meeting during 1996-97 and for preparing the select list by the Select Committee in its meeting held on 22-12-1999 for the reasons that the posts have been clubbed and filled up all the posts simultaneously without reference to the zone of consideration of 1:3 and without drawing yearly panels for the respective years during which the vacancies arose. Hence, we hold that the select list is vitiated and is accordingly quashed. The respondents are directed to hold the Select Committee meeting afresh expeditiously, not later than three months from today, and prepare the select list in the light of the findings in the preceding paras of our judgment. The Select Committee shall not, however, finalise and confer IPS to the officers who are covered by the G.O. Ms. No. 261, Home Department, dated 12-9-1998 pending further orders in WP No. 18492 of 1999 pending in the High Court".
13. Questioning the same, these writ petitions are filed.
14. The Union Public Service Commission (UPSC) has filed these writ petitions contending that the circumstances under which the Selection Committee could not meet for the years 1996-97 and 1998 were within the scope and ambit of the Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as 'regulations' for the sake of brevity) and the observations of the learned Tribunal that there was no justification for not holding the meeting in the respective years is not sustainable either on facts or in law.
15. WP No. 11612 of 2001 is filed by one of the 1987 direct recruit Dy.S.P. questioning the legality and validity of the order in OA No. 1986 of 1999 dated 8-2-2001. The petitioner inter alia contends that the learned Tribunal has failed to see that there is no ambiguity with regard to selection process and that in the absence of a finalized seniority list of eligible officers falling within the zone of consideration it is not possible to apply the statutory provision in any way; the learned Tribunal has completely misinterpreted Regulation 5 of the regulations and committed patent error in coming to the conclusion that the vacancies of year 1996-97, 1998 and 1999 cannot be clubbed together so as to enlarge the zone of consideration.
Submissions Submissions on Behalf of UPSC
16. According to the writ petitioner-UPSC, the selections could not be held because the seniority was not settled which was finalised only on 12-9-1998.
17. The learned Tribunal, however, has passed some interim orders in the year 1999. Questioning G.O. Ms. No. 261, dated 12-9-1998, OA No. 7065 of 1998 and batch was filed.
18. It was contended that OA No. 558 of 1997 was filed by one V.R.K. Mohan Rao for a direction upon the respondents therein to constitute a Select Committee wherein the explanation offered by the respondents therein had been admitted stating:
"In the present case, it is stated in para 6 of the reply filed on behalf of the 4th respondent that the "next select list for 1996-97 could not be prepared as the valid seniority list of State Police Service Officers in the category of DSP (Cat.2) has not been finalized." The reason given for not preparing the new select list as per Regulation 5 appears to be a satisfactory explanation for the failure to prepare the next select list. Hence we are justified in coming to the conclusion, in view of the observation of the Apex Court referred to above, that the case of the applicant who is wait listed for promotion to IPS cadre can be considered for promotion to IPS cadre against the restructured posts which was notified by the DP & T by the notification dated 25-3-1997."
19. It is further stated that the Indian Police Service (Appointments by Promotion) Regulations, 1955, have been amended by the Government of India in terms of its notification dated 31-12-1997 pursuant whereof the number of members of the State Police Service was to 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 every year in which the meeting is held.
20. Out attention has been drawn to several decisions of the Supreme Court and in particular a decision of the Apex Court in Nepal Singh Tanwar v. Union of India Unreported judgment of the Apex Court in CA No. 16769-71 of 1996 disposed of on 3-12-1996. Strong reliance has also been placed on a recent decision of the Apex Court in J.A. Administrative Service Officers Association v. Union of India, .
Submissions of unofficial respondents-applicants
21. Mr. Nuty Ram Mohan Rao, learned Counsel appearing on behalf of the applicants-respondents on the other hand would submit that these writ petitions are not maintainable, at the instance of UPSC, which is not a party aggrieved.
22. The learned Counsel would contend that in terms of Regulation 5 of the Regulations, exceptions to the regulation viz., meeting of the Select Committee for every year, as also non-preparation of the list for the said year is possible if one of the three contingencies mentioned therein arises. The learned Counsel would contend that insofar as exceptions viz., Clauses (a) and (b) of Regulation 5(1) is concerned, no reason has been recorded nor any pleading has been raised in this regard. The learned Counsel would contend that an obligation has been cast upon UPSC to convene meeting every year, in terms whereof the zone of consideration must be confined, but twice the number of actual vacancies for that year. Strong reliance in this connection has been placed on a decision of the Apex Court in Union of India v. Vipinchandra Hiralal Shah, .
23. The learned Counsel would also contend that the age of the persons, particularly those who have crossed 54 years in 1996-97, also is vital, which had also not been taken into consideration. It was contended that as the meeting was held on 22-12-1999, in terms of the regulations, the UPSC was to consider the vacancies only up to January, 1999.
Findings:
24. Insofar as the same is relevant, Regulation 5 of the Regulations read thus:
"5. Preparation of a list of suitable officers :--(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 Regulation 9 of the recruitment regulations. 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; or
(c) the Commission, on its own or on a proposal made by either the Central Government or the State Government, after considering the facts and circumstances of each case, decides that it is not practicable to hold a meeting of the Committee to make the selection to prepare a select list.
Explanation :--In case of Joint Cadres a separate select list shall be prepared in respect of each State Police Service, the size of each Select List being determined in the manner indicated above.
(2) The Committee shall consider for inclusion in the said list, the cases of members of the State Police Service in the order of seniority in that service of a number which is equal to three times the number referred to 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 of 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 Police Service unless on the (first day of January) of the year in which it meets 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:
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 the State.
(3) The Committees 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 in which it meets:
25. A bare perusal of the aforementioned provisions, in our opinion, shows that the Committee should ordinarily meet every year and prepare a list for promotion. The consequences of not meeting every year have to be considered in the facts and circumstances of each case. The date of meeting is required to be determined by the UPSC. The proviso appended to Sub-regulation (1) of Regulation 5 provides the clue inasmuch as in the first part thereof the expression 'shall' has been used and the second part thereof and the sentences thereafter starts in negative term.
26. The circumstances when the meeting may not be held had been stated in Clauses (a), (b) and (c). Clause (a) refers to a situation when there does not exist any substantive vacancy. Clause (b) refers to the prerogative of the Central Government. Clause (c) provides for a decision by the UPSC either on its own or on a proposal made by either the State Government or the Central Government wherefor the facts and circumstances of each case has to be taken into consideration for the purpose of arriving at a finding that it is not practicable to hold a meeting of the Committee to make the selection by preparing a Selection List.
Supreme Court Decisions:
27. This Court, in these writ petition, is not concerned with the actual selection of the candidates by the Selection Committee, but is concerned only with the infraction of the regulations, if any while preparing a Selection List.
28. In Syed Khalid Rizvi v. Union of India, , the Apex Court held that preparation of Select List every year was mandatory as it subserves the object of the Act and the regulations and afford an equal opportunity to the promotee officers. The Apex Court observed that the State Government concerned must satisfactorily account for the derogation of the statutory duty and the Court takes serious note of wanton infraction.
29. In Kasturi Rangan v. Union of India, 1981 Scale Supp. 11, Regulation 5(1) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, which is in pan materia on Regulations of the said Regulations, came up for consideration. In the said case, the Apex Court observed that the dicta in Syed Khalid Rizvi (supra) that the preparation of list every year was mandatory must be held in the light of the subsequent observation made therein to the effect that if the statutory duty of preparing the Select List was accounted, it, however, would be on valid ground for failure to prepare a Select List on the subsequent year.
30. Syed Khalid Rizvi (supra) and Kasturi Rangan (supra) again came up for consideration in N.S. Tanwar (supra) and the Apex Court held that in a case where the satisfactory reasons to account for its failure to hold its meeting have been given, having regard to the expression "ordinarily", the same must be held to be permissible. The Apex Court further held:
"The Tribunal did not have the benefit of the clarification contained in the order of 28-7-1993 in the case of Kasturirangan (supra). That is the reason why it proceeded on the premise that the preparation of the Select List under Regulation 5 was mandatory and on the expiry of one year the previous Select List lapsed. It did not consider the impact of Regulation 7(4) because of this Court's decision in Rizvi's case which was construed to mean that Regulation 5 was mandatory and had to be complied with at all costs. "It has rightly explained in Kasturirangan's case that the word 'ordinarily' in Regulation 5 means that the State Government must prepare the Select List every year and ordinarily that should be the practice but if there are good reasons for not doing so and the Court is satisfied that there were valid reasons for not preparing the Select List for the subsequent years, Regulation 1(4) would come into operation and the previous list would continue to remain in force. We, therefore, think that the Tribunal was wrong because it interpreted Rizvi's case to mean that Regulation 5 was absolute and mandatory in terms and failure to prepare the list was fatal. That is not the purport of Regulation 5 nor is it the purport of the decision of this Court in Rizvi's case as explained in Kasturirangan's case". That being so, the Tribunal was in error in quashing the appointment of the appellant'.
31. In T.N. Administrative Service Officers Association (supra) the Apex Court was considering a case where the applicants therein sought for directions upon the respondents to encadre the State Deputation reserved posts, ex-cadre posts and temporary posts, hitherto meant for members of Indian Administrative Service (IAS) for a tenure period exceeding three years in the IAS cadre.
32. The questions, which arose for consideration in the said decision, are:
"1. Should the temporary and ex-cadre posts that are in existence in the State Government service concerned be directed to be encadred in the IAS cadre strength of the States concerned?
2. Are the petitioners entitled in law to demand that the encadrement of posts should be effective from the original date of creation of the posts or atleast from the date of filing of the respective petitions?
3. Are the amendments brought about to Regulation 5(1) of the IAS (Appointment by Promotion) Regulations, 1955 ultra vires and liable to be struck down?"
33. Therein, the Apex Court held that it is for the Central Government for one reason or the other not to fill up the post. Having held so, the Apex Court considered the contention that a statutory obligation arises on the part of the Central Government to make a periodical review. Noticing its earlier decision in Syed Khalid. Rizvi (supra), which has been explained in Kasturi Rangan (supra), the Supreme Court observed:
.... From the judgment of Kasturi Rangan it is clear that mere delay in preparing the Select List as also the cadre review is not fatal if the respondent concerned had given sufficient reasons for the same. In the instant case, we find from the counter-affidavit of the Union of India that they have been given sufficient explanation for the delay in preparing the Select List as also the cadre review.
Therefore, the petitioners cannot claim any relief based solely on the ground of delay in cadre review or preparation of Select List.
34. The ratio which clearly, emerges from the decisions of the Supreme Court is that it is incumbent upon the UPSC to hold meeting every year and prepare a list for the year, but inability to meet every year may not be fatal, if there exists sufficient reasons therefor, as enumerated in Clauses (a) to (c) of Regulation 5. The Apex Court in Vipinchandra Hiralal Shah (supra) clearly held that the requirement to hold a meeting at intervals not exceeding one year is mandatory unless mere is a good reason for not doing so. It was, furthermore, held that (1) the failure on the part of the Selection Committee to meet during a particular year may not be fatal, (2) if the Selection Committee is unable to meet during a particular year, it means the Committee should, while making the selection, prepare a separate Select List for each year keeping in view the number of vacancies in that year after considering the State Civil Service Officers, who were eligible and fall within the zone of consideration for selection in that year.
35. The Tribunal has not accepted the explanation offered by the writ petitioner-UPSC and the Union Government for not holding the meeting every year. We may notice that when Selection Committee met in February 1996, the Select List was prepared for 1995-96 on the basis of the seniority list available as on the relevant date. In that year also the finalised seniority list was not prepared. Such a list was also not available for the year 1996-97. But, despite the same, no proposal had been sent to UPSC. The same was not a sufficient reason, which satisfies the proviso to Regulation 5(1) particularly when there existed clear vacancies in all the years.
36. The Tribunal has further come to the conclusion that no decision was taken by UPSC for not holding a meeting, which was a sine qua non. Insofar as the vacancies which arose in the year 1998 is concerned, there appears to be a satisfactory explanation for not holding the meeting during that year viz., in view of the High Court's interim order. Admittedly, insofar as the selected list prepared by the Committee on 2-12-1999 is concerned, the vacancies of all the three years have been clubbed and filled up simultaneously. While doing so, the zone of consideration of 1:3 as against the vacancies which arise in each year had not been adhered to. 56 officers had been considered, being three times the size of the Select List. Such a procedure adopted by the official respondent clearly contravenes Regulation 5(1) of the Regulations, which contemplates preparation of a list of such members of the State Police Service, who were held to be suitable for promotion.
37. Admittedly, the list refers to the year in which it meets. The Select Committee having met in the year 1999 ought to have considered the vacancies as existed in January, 1999. It was also necessary for the Select Committee to prepare three different panels for the years 1996-97, 1998-99.
38. We are afraid, the submission of the learned Counsel for the writ petitioner -UPSC, as also the Central Government, to the effect that as the cases of the applicants-unofficial respondents have been considered while preparing the Select List, the unofficial respondents are not prejudiced, cannot be accepted. By enlarging the zone of consideration, the mandatory provisions of the statutes have been violated. No reason whatsoever had been assigned for non-preparation of year-wise selected seniority list, particularly when there existed vacancies and the same is contrary to Clause (a) of Sub-regulation (1) of Regulation 5. The Central Government's proposal for drawing year-wise seniority list has been turned down by UPSC.
39. In Vipinchandra Hiralal Shah (supra) the Apex Court again was considering the provisions of Clause (1) of Regulation 5 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, which, as noticed hereinbefore is in pari materia with the regulation in question. Interpreting Clause (1) of Regulation 5 of the Regulations, it was observed:
If Clause (1) is read with the other provisions in Regulation 5 referred to above the inference is inevitable that the requirement in Clause (1) of Regulation 5 that the Selection Committee shall meet at intervals not exceeding one year and prepare a list of members of the State Civil Service who are suitable for promotion in the service was intended to be mandatory in nature because the eligibility of the persons to be considered both in the matter of length of service and age under Clauses (2) and (3) is with reference to the first of January of the year in which the Selection Committee met and the number of members of the State Civil Service to be considered for selection is also linked with the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of preparation of the list. We are, therefore, of the view that the requirement prescribed in Sub-regulation (1) of Regulation 5 regarding the Committee meeting at intervals not exceeding one year and preparing a list of such members of the State Civil Service who are suitable for promotion to the Service was a mandatory requirement which had to be followed. The earlier decisions of this Court also lend support to this view.
In the aforementioned case, approving its earlier decisions in Syed Khalid Rizvi (supra) and Union of India v. Mohanlal Capoor, , the Apex Court held:
"11. It must, therefore, be held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst the State Civil Service Officers who fulfil the conditions regarding eligibility on the first day of January of the year in which the Committee meets and fall within the zone of consideration as prescribed in Clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement to preparing the Select List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service officers who were eligible and fell within the zone of consideration for selection in that year".
40. Yet again, in Vinod Kumar Sangal v. Union of India, , the Apex Court held:
It is not the case of the respondents that the DPC made separate selection for the vacancies for the years 1980, 1982 and 1983 and the DPC appears to have bunched together all the vacancies for the years 1980 to 1985 and has made one selection for the 6 promotional vacancies and this has resulted in enlargement of the field of choice for the purpose of selection. The grievance of the appellant is that this mode of selection in disregard of the instructions contained in the office memorandum dated 24-12-1980 operated to his prejudice appears to be justified because if separate selection had been made for the vacancies which occurred in the years 1980, 1982 and 1983 the field of choice would have been much more restricted and the appellant would have had better chances of being selected.
41. In the aforementioned decision, the Apex Court clearly held that enlargement of the field of choice prejudicially affects the chances of selection.
42. For the reasons aforementioned, we are of the opinion that the learned Tribunal has not committed any illegality in passing the impugned judgment. The writ petitions are accordingly dismissed with one set of hearing fees.
43. By an order dated 19-6-2001 passed in WPMP No. 14391 of 2001 in WP No. 11612 of 2001 we directed the Selection Committee to hold its meeting as directed by the learned Tribunal and submit its report in a sealed cover before this Court. At the time of hearing of this batch of writ petitions, a letter dated 20-6-2001 of the Under Secretary of the UPSC has been produced before us and from a perusal whereof it appears that only the minutes of the meeting dated 22-12-1999 had been produced. The order of this Court, for reasons best known to the UPSC, had not been implemented. We take serious exception to the aforementioned attitude on the part of the UPSC and we are of the opinion that in view of the wilful disobedience of this Court order a suo motu proceedings under the Contempt of Courts Act, 1971 should be initiated against the Secretary of the UPSC.
44. Let notice issue in Form No. 1 to the contemnor.
45. Registrar (Judicial) is directed to keep in his custody the sealed cover produced before this Court in the above matter.