JUDGMENT
A.S. Sanghvi, Member (J)
1. Heard Mr. B.P. Tanna, Mr. N.S. Kariel with Mr. A.L. Sharma for the applicant and Mr. Paresh Upadhyay for the respondent No. 1 and Mr. M.S. Rao for respondent No. 2
2. This litigation has a chequered history. The applicant who was directly recruited as Dy. SP in the State Police Service and had become eligible for consideration for promotion to IPS was not recommended for consideration for promotion to IPS by the State Government on the ground of contemplation of the inquiry against him. The applicant therefore moved the Hon’ble High Court by filing special CA No. 5340/92. The Hon’ble High Court was pleased to issue rule and granted interim relief but the same had been challenged by the State Government before the Division Bench by way of Letters Patent Appeal and a grievance was raised before the Division Bench that looking to the nature of the relief sought by the present applicant, the Central Administrative Tribunal was the appropriate forum and not the Hon’ble High Court. The Division Bench vide order dated 20.10.1992 held that the High Court cannot entertain the present lis which had to go only before the Tribunal under the Act. The liberty was given to the applicant to pursue the process before the Tribunal under the Act. Consequently the applicant preferred the O.A 580 of 93 but instead of filing the same petition before the High Court he had added a prayer of quashing and setting aside his reversion by the State Government. Since this prayer of quashing and setting aside his reversion pertained only to State Government service, the Tribunal by order dated 12.1.99 dismissed the O.A. holding that the Tribunal had no jurisdiction to entertain the pleas regarding the State Government services. The applicant therefore approached the Hon’ble High Court by way of Special CA No. 6260 of 99 which came to be decided by the Hon’ble High Court vide order dated 14.6.2000. The Hon’ble High Court has been pleased to direct the CAT A’ bad Bench to dispose of the matter on merits in accordance with law holding that the Tribunal was competent to decide the issues involved in this O.A. This order of the Hon’ble High Court was challenged by the applicant before the Supreme Court by way of Special Leave Appeal (Civil) 14221/2000, but the Supreme Court vide its order dated 18.9.2000 held that the order of the High Court was proper and there was no reason for interference.
3. The case of the applicant is that his name figures in the select list prepared in the year 1983 as well as in the year 1984 for promotion to IPS but the State Government had not forwarded his name to the Central Government on the pretext of contemplation of an inquiry against him. The names of the other officers in the select list were forwarded to the Central Govt. in the month of March 1985, while on that day, though no inquiry was pending against him, the name of the applicant was not forwarded. The applicant was suspended on 8.10.1985 and departmental inquiry was started against him. The applicant has contended that the date on which the names of the other officers in the select list were forwarded to the Central Government, he was neither suspended nor any inquiry was pending against him and hence the action of the State Govt. not to forward his name in the year 1985 was arbitrary, illegal and unreasonable. He has also alleged that there was inordinate delay in completion of the inquiry against him and ultimately he was awarded a minor penalty of censure in that inquiry. The applicant was by order dated 19.4.84 promoted as DSP and was posted at A* bad and Gandhinagar. He was however reverted as Dy. SP with effect from 25.12.1985 after he was suspended on dated 8.10.1985, from the service. He has challenged his reversion by the State Govt. on the ground that this amounted to punishment even prior to the issuance of the charge sheet on him. According to him the charge sheet was served on him in the month of December 1985 while the reversion order was passed w.e.f. 25.12.85. The applicant had unsuccessfully challenged his suspension and also the delay in conducting the departmental inquiry before the High Court and had ultimately went to the Supreme Court also. The inquiry was finally concluded by the disciplinary authority by imposing punishment of censure on him on dated 6.4.92. The
applicant has now contended that since the punishment of censure is imposed on him, the State Govt. ought to have recommended his name to the Central Govt. for conferment of the IPS rank w.e.f. 1984 and more particularly w.e.f. the date his junior was conferred with the rank of IPS. He has alleged that he has been victimised because he belongs to SC and even though he has been eligible for promotion his claim has been ignored by the respondents and he has not been considered for conferment of the IPS rank. He has therefore prayed that the respondent No. 1 State Govt. be directed to forward his name to the Union Govt. for conferring IPS upon him in pursuance to his selection in 1984 and has also prayed that his reversion from the post of DSP to Dy. SP be quashed and set aside with all consequential benefits.
4. The respondents have resisted this O.A. The respondent No. 1 State Govt. has filed its reply through the Under Secretary while the respondent No. 2 Central Govt. has not filed any reply. The respondent No. 1 in his reply has contended inter alia that the applicant was considered for IPS select list prepared by the selection Committee for the year 1983 and was promoted to the ex-cadre post of DSP from 1984. He was suspended from the ex-cadre post of DSP on 9.10.85 because of contemplated inquiry against him. The charges leveled against the applicant were of moral turpitude and vile character and considering these charges his name was dropped from the select list of IPS by the Selection Committee on 26.12.85. He was therefore subsequently reverted to the post of Dy. SP from 26.12.85 while he was under suspension. It is also contended that though his name was included in the select list prepared by the Selection Committee which had met on 10.12.84 his name was not recommended for the appointment to the post of IPS on account of his suspension and on account of the pending inquiry. It is further contended that the applicant was visited upon the punishment of censure in the inquiry held against him and the applicant has accepted this punishment without any dispute. The State Govt. has maintained that since the applicant is not exonerated in the inquiry and the punishment of censure is inflicted upon him, he is not eligible to be considered for promotion to IPS. They have denied that the Govt. wants to harass and or to victimise or discriminate against the applicant and have contended that the applicant is not entitled to any of the reliefs prayed.
5. At the out set Mr. M.S. Rao, learned Advocate appearing for the respondent No. 2 Union Govt. has pointed out that since the relief prayed for by the applicant pertains to his promotion to IPS cadre, the non-joinder of UPSC as a party in this O.A. is fatal to this O.A. According to Mr. Rao, UPSC has a major role to play in selecting the officers for nominations to IPS and under the Regulation 7 of the IPS (Appointment by Promotion) Regulations, 1955 the Commissioner has been given powers to make changes in the list or to approve or disapprove any candidate. This regulation also envisages that the select list will become final only when it is finally approved by the Commissioner. According to Mr. Rao, the function of the State Govt. is only to prepare a select list of the eligible officers and to forward the same to the UPSC. The State Govt. cannot confer the promotion of IPS on any of the officers unless and until the list is approved by the UPSC. Since the UPSC is not a party in this O.A the relief prayed for, by the applicant regarding his promotion cannot be granted. He has also raised the question of limitation contending that the cause of action for filing such a O.A had arisen in the year 1984-85 when the name of the applicant was not included in the select list sent to the UPSC by the State Govt. and since this O.A is filed in the year 1993, the same is obviously barred by limitation.
6. Mr. Kariel, learned Advocate appearing for the applicant has however submitted that the applicant is seeking directions against the State Govt. to send his name to the UPSC
on the basis of the 1984 select list, as now the inquiry proceedings against the applicant have finally come to an end the applicant has been awarded punishment of censure which cannot be considered to be an impediment in his being promoted to IPS. He has further submitted that the applicant was found suitable to be included in the select list in the year 1983 as well as 1984 but for the reasons best known to the State Govt. the select list was not forwarded to the Central Government in the year 1984 and when the same was forwarded in March 1984 the name of the applicant was dropped from the select list. According to him on the day his name was dropped from the select list, these was no inquiry pending against the applicant nor the applicant was suspended from the service and hence the action of the State Govt. to drop his name from the select list was clearly illegal and untenable. Now that he has been practically exonerated of all the charges against him by imposition of minor punishment of censure, the respondent No. 1 may be directed to send the name of the applicant to the Union Govt. for approving, as if there was no inquiry against him and as if he was never suspended and as if he has continued in the select list of 1984. According to him it is a settled position of law that every employee has a fundamental right to be considered for promotion and since the applicant has not been considered for promotion without any substantial reason, the State Govt. is required to be directed to consider him for promotion to the IPS. Contending that dropping the name of the applicant from the select list was an act of victimisation and harassment to the applicant, Mr. Kariel has submitted that if his name had been even included in the select list of 1985 the same would have been continued uptill now on provisional basis as the regulation provides for such a contingency. According to him this is a clear case of victimisation and hence the applicant should be given the relief as prayed for.
7. Mr. Paresh Upadhyay, learned Advocate for the State Govt. on the other hand has submitted that the State Govt. is not the authority to appoint any officer to IPS cadre. It is only a recommending authority. According to him when the State Govt. found’that the charges of moral turpitude and vile character were leveled against him and the inquiry was contemplated by the State Govt. in this charges, the name of the applicant was dropped from the select list. According to him the charges were not found to be baseless and the applicant has not been completely exonerated. He has been found guilty of the charges against him but the quantum of punishment may not be the reflection of the gravity of the charges as the same depends upon several other factors. The inquiry report according to Mr. Upadhyay has justified the action of the State Govt. in not recommending the name of the applicant for inclusion to the select list of IPS. According to him the applicant has nowhere challenged the validity of the select list uptill now and hence now the State Govt. cannot be directed to recommend the name of the applicant for the year 1984-85.
8. We have carefully considered the rival contentions. It is an un-controverted fact that the name of the applicant was included in the select list for the year 1983-84 but for some reasons that select list could not be sent to the Central Govt. for approval. The selection committee thereafter again met in December 1984 and all the six names including the name of the applicant were considered by the selection committee and at that time also the name of the applicant was included in the select list. However this select list also could not be sent to the Central Govt. till March 1985 and when in March 1985 the select list was sent to the Central Govt. the name of the applicant was dropped from that select list. Since the name of the applicant was not forwarded to the Central Govt., no question of considering his name even on provisional basis by the UPSC or the Central Govt. arises. According to the respondent No. 1, State Govt., his name was not forwarded to the Central Govt. as an inquiry in the charges of moral turpitude and vile character was contemplated against the applicant.
The act of the State Govt. in dropping the name of the applicant from the select list on the ground of contemplated inquiry is not in consonance with the provisions of sub regulation 5 of Regulation 5 of the IPS (Appointment by Promotion) Regulations, 1955. The proviso to this sub regulation 5 enjoins upon the State Govt. to include the name of such officers in the list and to treat the same as provisional if any proceedings are contemplated or pending against him or any thing adverse against him had come to the notice of the State Govt. The State Govt. has instead of treating the name of the applicant as provisional in the list, in view of the contemplated departmental inquiries against him, just dropped the name of the applicant from the list, thereby depriving the applicant from being considered for promotion to the post of IPS subsequently. It is quite obvious that this has been done by the State Govt. in compete disregard to the proviso to sub regulation 5 of Regulation 5. Under the circumstances, there is no other alternative but to hold the action of the State Govt. in not including the name of the applicant in the select list of the officers for IPS cadre as arbitrary, illegal and unreasonable. Once he was selected by the competent Selection Committee, it was not open to the State Govt. to drop his name from the select list on the ground of contemplated inquiry or pending inquiry. It can be seen that in March 1985 when his name was removed from the select list, the applicant was yet not suspended and was not even charge sheeted. He was suspended on dated 9.10.1985 and was charge sheeted in the year 1986. Hence on the date on which his name was removed from the select list prepared by the selection committee he was not facing any inquiry or was not suspended. If anything adverse had come to the notice of the State Govt., then the State Govt. could have included his name in the select list provisionally but his name could not have been removed from the select list. It would have been altogether a different situation if the selection committee had not found the applicant fit to be included in the select list, but once the selection committee had selected him, the applicant could not have been deprived of his right of being considered for promotion to IPS cadre by removal of his name from the select list. The action of the removal of the name of the applicant from the select list on the part of the State Govt., being clearly against the provisions of the statutory regulations was ab inito illegal and void and therefore the applicant is justified in asking for direction against the State Govt. to forward his name as a selected candidate of 1984 select list for consideration of the UPSC as well as Central Govt. for appointment to the IPS cadre.
9. In the case of Union of India v. Dr. (Mrs.) Sudha Sadhan, 1993(5) SLR 473=1998(2) SLJ 265 (SC), the Supreme Court referring to the decision in the case of Union of India and Ors. v. K. V. Janakiraman, 1991 (4) SCC 109, has reiterated that if on the date of the consideration by the committee for promotion, the person is neither under suspension nor any departmental proceedings have been initiated against him, his name has to be brought on the select list if he is otherwise found suitable for promotion. It is further observed by the Supreme Court that the regulation of the departmental promotion committee can be placed in a sealed cover only if on the date of the consideration of the name for the promotion, the departmental proceedings had been initiated or were pending or on its conclusion final orders had not been passed by the appropriate authority.
10. In the instant case the question of sealed cover procedure does not arise as the regulations provide for including the name of an officer provisionally in the list if anything adverse is noted against him or if an inquiry is contemplated or pending against him. The State Govt. has however not adopted this procedure. In the case of Delhi Jal Board v. Mahindra Singh, AIR 2000 SC 2767, the Supreme Court has laid down that, ‘the right to be considered by the departmental promotion committee is a fundamental right guaranteed under Article 16 of the Constitution of India provided a person is eligible and he is in the
zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry but the findings of the disciplinary inquiry exonerating the officer is to be given effect to from the date on which the charges are framed. If the disciplinary inquiry ended in his favour it is as if the officer had not been subjected to any disciplinary authority. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the departmental promotion committee if favour of such an inquiry if he had been found fit for the promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when the DPC made.
11. In the case of the State Police Officers to be considered for appointment by promotion to IPS the sealed cover procedure is replaced by treating the name of the officer as provisional if any proceedings are contemplated or pending against him or anything adverse against him has come to the notice of the State Govt. Dropping the name of the selected State Police Officer from the select list will effectively deprive the benefit of the proviso to sub regulation 4 of Regulation 7 to the concerned officer and thereby cause great prejudice to him. Interestingly in the affidavit of P.C. Gupta, Dy. Secretary to the Govt. of Gujarat, filed before the Hon’ ble High Court in the special CA No. 5709/85 in October 1985 following statement was made in para 3 :
“The Indian Police Service (Appointment by Promotion) Regulations, 1955 which are made in pursuance of Sub-rule (1) of Rule 9 of the Indian Police Service (Recruitment) Rules, 1954 provide for appointment of officers in the State Police Service to a cadre post i.e. a post in the Indian Police service cadre. The said regulations provide for preparation of a select list for the aforesaid purpose. Name of the petitioner is on such select list. However, he is yet not nominated to the Indian Police Service. Further in view of the facts and circumstances, narrated herein above, the State Govt. has also informed the Central Govt. that it has decided not to propose the petitioner for appointment on Indian Police Service but one post will be kept reserved for him. I say that such reservation will continue so long as the name of the petitioner is on the select list”.
12. Obviously the statement made in this affidavit by the then Dy. Secretary does not reflect the correct position. It is an uncontroverted position so far this O. A is concerned that the name of the applicant was dropped from the select list when it was sent to the Central Govt., though it was included in the select list when select list was prepared. It is also not in dispute that for subsequent years the name of the applicant did not figure in the select list at all and therefore the question of keeping one post reserved for the applicant did not arise. His name would have been continued to be shown on the select list for subsequent years if, it had been shown in the select list of 1984 even provisionally. However since the name was dropped and not forwarded in the select list of 1984 the applicant Jid not stand any chance for consideration for promotion to IPS cadre.
13. This has regrettably caused an injustice to the applicant. Now that the inquiry against the applicant is over and though he has not been completely exonerated from the charges leveled against him, he has however been imposed a minor penalty of censure. The State Govt’s own GR dated 23.9.81 provides that a minor penalty of censure awarded or proposed to be awarded to the Govt. Servant need not to be taken into account while considering his case for promotion. Hence the punishment imposed of censure is not an impediment in considering the applicant for promotion to IPS. The State Govt. is therefore
under an obligation to forward the name of the applicant to the Central Govt. along with necessary certificate etc., as required under the regulations, treating the same as part of the select list of 1984. It will be for the UPSC and the Central Govt. to consider whether the applicant is suitable for promotion to IPS cadre.
14. So far the question of reversion is concerned the same should not detain us any more. The applicant was promoted on temporary basis to the ex cadre post of the DSP by the State Govt. and on the suspension of the applicant he was reverted back to the State cadre post i.e. that of Dy. S.P. There is not illegality or irregularity involved in such reversion. The applicant was temporarily promoted and appointed by the State Govt. as Additional DSP as his name was included in the select fist. However once it was found that he could not have been appointed to the said ex cadre post of IPS, the State Govt. was justified in reverting him back to the post he was holding as the State Govt. had no powers to appoint him to IPS cadre substantively. The applicant had not acquired any right to hold such a post and he cannot be continued in preference to a select list officer who may be placed above him by subsequent selection committee. Hence there is nothing irregular or illegal in reverting the applicant to the post of Dy. S.P.
15. Though it was tried to be submitted that the O.A is barred by limitation, delay and latches none of the contentions are found to be raised in the pleadings. In any case, the record discloses that the applicant has been litigating since 1985 challenging his non-promotion, suspension, inquiry etc. and these litigations having nexus with the cause of action of the present O.A. also , it cannot be said that the present O.A is barred by limitation or delay and latches. Furthermore, in the case of Abdul Culta Manji v. State of Gujarat, (2000) 1 GLH 621, the Gujarat High Court has laid down that in view of the fact that the discrimination meted out to the teachers in private affiliated Law Colleges have been found to be unjustified by the apex Court as well as by this Court and therefore the petitioners have a good case on merits. This Court would not be inclined to dismiss the petition on the ground of delay alone more particularly when that aspect is taken care of while moulding the relief by not awarding any interest on the arrears of pension till the date of the filing of the petition.
16. The ratio of this decision is very much applicable to the facts of the instant case and therefore we are not inclined to reject this O.A on the jejune ground of delay, latches and limitation.
17. In view of the foregoing discussion we find that the O.A deserves to be partly allowed and the respondent No. 1 State Govt. will have to be directed to forward the name of the applicant to the Union Govt. for consideration of conferment of IPS upon him in pursuance to his selection in 1984 and inclusion of his name in the select list of 1984. Rest of the reliefs prayed for by the applicant cannot be granted and they stand rejected. We accordingly allow the O.A partly, and direct the respondent No. 1, State Govt. to forward the name of the applicant to Union of India for considering him for conferment of IPS upon him in pursuance of his selection and inclusion of his name in 1984 select list of IPS. This exercise be carried out within one month of the receipt of copy of this order by the State Govt. The O.A stands disposed of with the above direction with no order as to costs.