Central Administrative Tribunal - Delhi
S. Puttaswamy vs Government Of India Through on 23 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2758/2010 New Delhi this the 23rd day of December, 2010. Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) S. Puttaswamy, KAS Commissioner Karnataka Slum, Clearance Board No.55, Resildar Street Seshardipuram, Bangalore- 560020. Applicant (By Advocates Shri A. Mariarputtam, Sr. Advocate with Sh. D.K. Garg and Shri Yusaf Khan ) VERSUS 1. Government of India through The Secretary, Department of Personnel & Training, North Block, New Delhi. 2. Union Public Service Commission, Through The Secretary, Dholpur House, Shahjahan Road, New Delhi. 3. Government of Karnataka Through The Chief Secretary, Vidhan Saudha, Bangalore-560001. 4. Sathyamurthy K.S. Deputy Commissioner, Koppal District Koppal, Karnataka State. 5. Prabhakarappa N. Deputy Commissioner, Kolar District-Kolar, Karnataka State. 6. Adoni Syed Saleem, Managing Director, Karnataka Food and Civil Supply Corporation Bangalore, Karnataka. 7. Nandkumar B.G, Joint Secretary to Honble Chief Minister of Karnataka, Vidhan Saudha Bangalore, Karnataka. 8. Chakravarthy Mohan, Deputy Commissioner, Chamaraja Nagar-District, Karnataka State. 9. Srivara H.G. Deputy Commissioner, Haveri District Haveri, Karnataka State. Respondents (By Advocate Mr.R.N.Singh) O R D E R Mr. L.K.Joshi, Vice Chairman (A):
Mr. S Puttaswamy, the Applicant in this OA, who is a member of the Karnataka Administrative Service (KAS), is aggrieved by the fact that he has not been considered for promotion to the IAS for the vacancies, which occurred between 01.01.2006 and 31.12.2006, on the ground that he had attained the age of 54 years on 04.03.2006. The Applicant is also challenging the notification dated 21.11.2007, issued by the Department of Personnel and Training (DOP&T), whereby fourth to the ninth Respondent had been appointed to the IAS and allocated to Karnataka cadre under Rule 5 (1) of the Indian Administrative Service (Cadre) Rules, 1954. The following relief has been sought:
(a) issue an appropriate direction, directing the respondents to include the name of applicant in the eligibility list of suitable officers prepared under Regulation 5 (1) of Indian Administrative Service (Appointment by Promotion) Regulation, 1955 for consideration and promotion in IAS against the six vacancies occurred in the year 2006;
(b) issue an appropriate direction, directing the respondents to hold a review DPC and consider the applicant for promotion in IAS from KAS against the six vacancies occurred in the year 2006;
) issue an appropriate direction or order to set aside the select list prepared by the respondent No.3 under Regulation 5 (1) of Indian Administrative Service (Appointment by Promotion) Regulation, 1955 and the selection and appointment of respondents No. 4 to 9 on the post of IAS from KAS and also the notification No.14015/11/2006-AIS (1)-B dated 21.11.2007 issued by the Government of India, Ministry of Personnel, Pubic Grievances & Pensions, Departments of Personnel & Training, New Delhi, whereby respondent No.4 to 9 were appointed as IAS Officers;
(d) direct the respondents No.1, 2 and 3 to reconsider the name of the applicant and other eligible persons qua the vacancies occurring from 1.1.2006 to 31.12.2006 by including the name of the applicant;
(e) pass any other order or orders as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. The sole question which arises for consideration is whether the age of eligibility for induction of the officers of the state civil service to the IAS is required to be considered with reference to first January of the year for which the select list is prepared or any other date.
3. The date of birth of the Applicant is 05.03.1952 and he attained the age of 54 years on 04.03.2006. The Applicant entered the KAS in the year 1983 and by progressive promotions he got the Super Time Scale with effect from 26.02.2004. It is not disputed by the Respondents that there were 11 vacancies available in the promotion quota for induction of officers belonging to KAS to the IAS and the Applicant was eligible for consideration for promotion. The selection committee met on 02.11.2006 and prepared the select list, which after the due approval of the UPSC was issued by the notification dated 21.11.2007. The Applicant approached this Tribunal in OAs numbers 2465/2006 and 1352/2007. In OA number 2465/2006 the Applicant had challenged the select list by which 11 persons had been promoted to the IAS from KAS. By OA number 1352/2007 the selection and appointment of the 11 persons had been challenged. Both the OAs were disposed of by order dated 03.07.2008 with the following directions:
In the light of the ruling of the Honble Supreme Court and the Larger Bench of this Tribunal, we think that it would meet the ends of justice if the respondent No.3 (State of Karnataka) communicate the said report to the applicant and take an appropriate decision thereon, after giving applicant an opportunity to represent against the same in accordance with the Rules. In the event of any change in his record, procedure for review would follow in accordance with law. OA is disposed of with the directions as above. Following the direction of this Tribunal the Annual Confidential Reports of the Applicant were reconsidered and upgraded to 'Very Good' by the Government of Karnataka. Pursuant to the upgrading of the below benchmark grade of the Applicant, the matter was referred to the UPSC for holding review DPC. In addition to the OAs referred to above, the Applicant and some others had filed OAs number 262/2007, 416/2007, 447/2007 and 88/2008 challenging the restriction of age to 54 years for consideration for promotion to the IAS prescribed in clause (3) of the Indian Administrative Service (Appointment by Promotion) Regulation, 1955 enacted in pursuance of Sub-Rule 8 of the Indian Administrative Services (Recruitment Rules), 1954, before the Bangalore Bench of this Tribunal. The learned Bench allowed the above mentioned OAs by judgement dated 13.11.2009 and quashed the said clause 5 (3) ibid. The matter was carried to the Honourable Bangalore High Court in Writ Petition number 39137/2009 and other connected Writ Petitions. The order dated 13.11.2009 of this Tribunal was stayed till the disposal of the Writ Petitions. In SLP number 7856-7859 of 2010, the Honourable Supreme Court passed the following order:
Issue notice.
Heard learned Senior Counsel for the parties.
Interim direction to Union Public Service Commission that while considering the list of eligible candidates forwarded by the State Government, the names of petitioners shall also be considered. But in so far as the petitioners are concerned, the sealed cover procedure shall be adopted. It is made clear adoption of sealed cover procedure in the case of petitioners shall not come in the way of any person from the list sent by the State Government being selected or appointed.
As the High Court in its impugned order has stated that the writ petition will be listed in the second week of March, we request the High Court to expedite the hearing. The matter is still under consideration of the High Court.
4. The selection of the officers of the State Civil Service to the IAS is governed by the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter the Regulations). Regulation 2 (1) (I) has been extracted below:
2 (1) In these regulation, unless the context otherwise requires:
(a) to (k) xxx xxx (1) `Year means the period commencing on the first day of January and ending on 31st day December of the same year. Regulation 5 of the Regulations has also been reproduced below:
5. PREPARATION OF A LIST OF SUITABLE OFFICERS:-
5 (1): Each committee shall ordinarily meet every year and prepare a list of such members of the State 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.
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 post available for the members of the State Civil Service under Rule 9 of the Recruitment Rule; 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 post 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 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 case of Joint Caders, 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 seniority in that service of a member 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 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 year 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 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 the sub-regulation shall be exercised in relation to the members of the State Service of constituent State, by the Government of that State.
5 (2A) Deleted.
5 (3): The Committee shall not consider the cases of the members of the State 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 names appear 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 eligible for consideration on the first day of January of the year or 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 and Unfit as the case may be on an overall relative assessment of their service records.
5 (5): The list shall be prepared by including the required number of names first from amongst the officers finally classified as Outstanding then from amongst those similarly classified as Very Good and thereafter from amongst those similarly classified as Good and the order of names inter-se within each category shall be in the order of their seniority in the State Civil Service.
Provided that the name of an officer so included in the list shall be treated as provisional if the State Government withholds the integrity certificate in respect of such an officer or any proceedings, departmental or criminal are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government.
Provided further that while preparing year-wise select lists for more than one year pursuant to the 2nd proviso to Sub-Regulation (1), the officer included provisionally in any of the Select list so prepared, shall be considered for inclusion in the Select list of subsequent year in addition to the normal consideration zone and in case he is found fit for inclusion in the suitability list for that year on a provisional basis, such inclusion shall be in 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 Government only if the details of the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential.
5 (6) Omitted.
5 (7): Deleted. It would be instructive to read the un-amended Regulation 5 (3) of the Regulations, as it was before its amendment in the year 2000:
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 April of the year in which it meets.
5. Meanwhile, an identical case of the induction of the officers of the Punjab Civil Service to the IAS for the vacancies which arose between January 2006 and December 2006, on identical issue regarding the age of eligibility was considered by the Honourable Punjab and Haryana High Court in CWP number 15798 of 2009, decided on first of February 2010. The challenge in this Writ Petition was to the combined eligibility list dated 07.08.2008 of the State Civil Service officers and notification dated 13.08.2009 issued by the DOP&T, making appointments of the members of the State Civil Service of Punjab to the Indian Administrative Service for the Select List Year 2007 in 2008. The issue for consideration before the Honourable Punjab and Haryana High Court was identically the same as in the instant OA. The High Court observed thus in paragraph 21 of the judgement:
21.We find substantive support to the aforesaid submission in unnumbered proviso to Regulation 5 (1). According to the aforesaid proviso if no meeting of the Committee could be held during a year then whenever the Committee meets again, the select list has to be prepared separately for each year during which the Committee could not meet as on December 31st of each year. The aforesaid proviso is consistent with the definition of expression year in Regulation 2 (1) (1). Therefore, the vacancies for the year 2006 i.e. from 1.1.2006 to 31.12.2006 have to be determined as on December 31 of that year. The Select list, which has been erroneously styled as Select List of 2007 in fact, is the select list for the year 2006. Therefore, the age of the petitioner has to be determined as on 1.1.2006. Accordingly, he would be eligible. Further it was observed in paragraph 24 of the judgement that:
24. The intention of the framers of the Regulations further become discernible from the reading of un-amended Regulations, which have linked the age of 54 years to the 1st April of the year of meeting. The framers of the Regulations must have found that the year of meeting has no relationship for determination of the age of eligibility as it was wholly fortuitous. Therefore, to keep the eligibility intact in respect of the year for which the select list is prepared, amendment has been incorporated in the year 2000 and an effort has been made to link the age of eligibility to the occurrence of vacancies and to de-link the same from the year of meeting. If we construe the Regulation 5 (3) to mean that age has to be determined by reference to the year of meeting then the mischief which is sought to remedied would loose its object. The aspirations of a brilliant and meritorious officer working in the State cannot be defeated by any arbitrary method of fixing the age of eligibility, which has got nothing to do with the basic principle of service jurisprudence, namely, occurrence of vacancy. Therefore, we find that the Tribunal has committed a grave error by presuming that the age of eligibility has to be determined in respect of the year when the Committee is supposed to meet, which is wholly unsustainable. After considering all the aspects of the case and the arguments of the learned counsel representing the parties, the High Court gave the following directions:
For the reason aforementioned, this petition succeeds. The order of the Tribunal, dated 4.9.2009 (P-13) is hereby quashed. As a consequence, the combined eligibility list of State Civil Service Officers dated 7.8.2008 (P-4) and the notification dated 13.8.2009 (P-14) in respect of so called select list for the year 2007 is also quashed. However, it is made clear that respondent No. 5 to 10 would continue to work on their present posting till the fresh decision is taken by the Committee to make selection as per Regulation 3. Accordingly, respondent Nos.1 to 3 are directed to re-consider the names of all the eligible candidates by determining the age of 54 years as on 1.1.2006 qua the vacancies occurring from 1.1.2006 to 31.12.2006 by inclusion of the name of the petitioner. The needful shall be done within a period of one month from today and the petitioner shall not be debarred from entering Indian Administrative Service merely because he would retire in February 2010, because all the proceedings of the Select Committee up to the issuance of impugned notification, has always remained subject to the result of the O.A., which was filed by the petitioner well in time. The SLP filed against the above judgement of the High Court was dismissed by the Honourable Supreme Court by order dated 31.05.2010.
6. It may be mentioned here that although notices had been served on all the Respondents, yet only the first Respondent, Department of Personnel and Training, has filed its counter affidavit in the OA. The other respondents have not filed their replies and they have been proceeded against ex parte.
7. The DOP&T has acknowledged in paragraph 5.2 that the Applicant was eligible for inclusion in the Select List prepared against the vacancies of the year 2006 because his eligibility had to be reckoned as on 01.01.2006 and on that date he had not crossed the age of 54 years. In the light of the above judgement of the Honourable Punjab and Haryana High Court confirmed by the Honourable Supreme Court, the Respondent, DOP&T, took the following decisions, as enumerated in paragraph 5.5 of the counter affidavit:
(i) The said order would be implemented w.e.f. Ist February 2010, i.e. date of the High Court order.
(ii) Wherever meetings of the Selection Committee in respect of any All India Service have not been held or meetings have been held but minutes of the meeting have not been approved by the Commission, the same will be held in accordance with the interpretation of Regulations given by Honble High Court and confirmed by Honble Supreme Court.
(iii) Where meetings have already been held and minutes have been approved the same will not be opened unless and until there is specific direction from a Court of Law.
(iv) The eligibility of State Service officers in cases of Review Selection Committee meeting would be reckoned on the basis of Regulations interpretation prevailing in that year unless otherwise directed by a Court of Law.
(v) Select List will henceforth by styled coinciding with the year of vacancies. In case there are two overlapping Select Lists for a particular year the same will be distinguished by styling the Select List of that year (correspondent to the year in which vacancies have arisen) and the other select list will be named by adding A to that year.
8. The learned senior counsel for the Applicant would contend that the right to consideration for promotion is a fundamental right, as held by the Honourable Supreme Court in Ajit Singh and others (II) V. State of Punjab and others, (1999) 7 SCC 209 and Union of India and Another V. Hemraj Singh Chauhan and others, (2010) 4 SCC 290. He would contend that it would be great injustice if the Applicant was to be denied his fundamental right in spite of being eligible as held by the judgement of the Honourable Punjab and Haryana High Court in the CWP number 15798 of 2009, Praveen Kumar V. Union Public Service Commission and others, already adverted to above. The learned senior counsel would further contend that an extremely anomalous situation would be created by the decisions of the Respondent, DOP&T, as quoted in the previous paragraph of this order, in as much as a candidate would be deprived of his opportunity for consideration for promotion to the IAS if he is not considered for promotion because of wrong interpretation of rules, but another candidate would be eligible for consideration if, in his case, the selection committee has not met because of administrative lethargy and delay. He would contend that the rights of the parties have still not crystallised and the Bangalore Bench of the Tribunal has quashed the Regulation 5 (3) of the regulations, by which the age of consideration is restricted to 54 years. The only argument that the learned counsel for the Respondents has advanced is that the above judgement of the Bangalore Bench of the Tribunal has been stayed by the Honourable Bangalore High Court.
9. We have carefully perused the judgement of learned Bangalore Bench of this Tribunal, by which the restriction of the age for consideration to be 54 years has been quashed and the order of the Honourable Bangalore High Court staying the operation of the aforesaid judgement of the Tribunal. In our considered opinion these judgements are not germane to the issue under consideration before us. The aforesaid judgement of the Bangalore Bench of the Tribunal deals with the question whether there should be any restriction in age for consideration of officers of State Civil Service to IAS. However, the issue before us is whether the crucial date for determining the age of 54 years should be first January of the year in which the vacancies arise or first January of the following year. To make it clear the question is whether the age as on 01.01.2006 or on 01.01.2007 would be considered for vacancies arising between 01.01.2006 and 31.12.2006. The Honourable Punjab and Haryana High Court has held that the crucial date would be 01.01.2006. The judgement of the High Court has been upheld by the Honourable Supreme Court and it has now attained finality. The case of the Applicant also pertains to the Select List Year 2007, for the vacancies which arose in the year 2006. The Respondent, DOP&T, has accepted that by operation of the aforementioned judgement of the Punjab and Haryana High Court, the Applicant would be eligible for consideration on 01.01.2006. However, the Respondent-DoP&T has decided to implement the judgement from 1st February 2010, the date of the judgement. We are, however, are of the considered view that the judgement should be implemented in the case of the Applicant for the Select List Year 2007, in which selection for the vacancies of the year 2006 was made. It is because the judgement of the Punjab and Haryana High Court also pertains to the same year of vacancies, that is, the year 2006 and the appellant Praveen Kumar would get the benefit of the judgement of the Honourable High Court if found suitable by the review-selection committee. In such view of the matter it would only be appropriate if the Applicant, who is similarly situated as Praveen Kumar, albeit from a different cadre, should also not be deprived of the benefit of the judgement of the Honourable High Court, as upheld by the Honourable Supreme Court. Moreover, as pointed out by the learned senior counsel for the Applicant, an anomalous situation would arise where the candidates would be considered for the vacancies of the year 2006 for promotion to the IAS, if for some reason attributable to administrative delays the selection committees have not met, whereas other similarly situated candidates would be deprived of the fundamental right for consideration merely because the selection committee has met on time. The Respondent, DOP&T, has stated in paragraph 6 of the counter affidavit that:
6. In the light of reasons and grounds explained above it is submitted that Honble Tribunal may like to pass any order as deemed appropriate and necessary in the interest of justice. It is prayed accordingly.
10. In the result the OA succeeds. The Select List dated 21.11.2007 is quashed and set aside. We direct the Respondents to conduct a review selection committee meeting for considering the Applicant for promotion to the IAS for the vacancies which arose between 1st January 2006 to 31st of December 2006 and if he is found suitable, he should be promoted with effect from the date other candidates of the same Select List Year had been promoted to the IAS. However, the persons in the Select List issued on 21.11.2007 (Annex A/1) shall not be disturbed till fresh consideration is completed by the review selection committee in regard to selection for the vacancies arising in the year 2006. This exercise would be completed within three months of the receipt of a certified copy of this order. There will be no orders as to costs.
( L.K.Joshi) ( V.K.Bali) Vice Chairman (A) Chairman sk