High Court · 2005

5. Being aggrieved by non-inclusion of their names in the select li st for the year 2004, 2005 and 2006 as well, they approached the CAT, Guwahati B ench, for the following reliefs: (1) To set aside and quash the selection held for preparation of the select list against the vacancies identified in the Assam segment of the IPS Assam Megh alay Joint Cadre for the year 2004 and 2005; To set aside and quash the notification dated 31-05-2007; and (2) (3) for a direction to the respondent authorities to convene a Review Select ion Committee Meeting for consideration the cases of all eligible officers inclu ding the respondent No. 1 ( in both the writ petitions) for preparation of selec t list against vacancies identified in Assam segment of the IPS Assam Meghalaya Joint Cadre for the year 2004 and 2005.

6. Both the applications were resisted by the respondents, official as well as private, by filing reply. UPSC filed its reply contending that both the applicants/respondents were duly considered for the years 2004 and 2005 vac ancies. Since applicant/respondent Dilip Kumar Baruah, crossed 54 years as on 01 -01-2005 he was not considered while applicant respondent Guneswar Duwari was co nsidered for both the years, i.e. 2004 and 2005. Since Duwari was graded (cid:28)good (cid:29) his name was not included in the select list. It was also the case of the UPSC t hat IPS (Appointment by Promotion) Regulations 1995 amended vide notification of Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training dated 31-01-2005 had been followed.

7. Private respondents contended that they being senior in the grad ation list in comparison to applicants/respondents were rightly selected and inc luded in the select list 2004 and 2005 and that apart they had been graded (cid:28)ver y Good (cid:29).

8. plicants/respondents contending their stand stated hereinbefore. The stand taken by the UPSC had been severely attacked by the ap Learned Central Administrative Tribunal (CAT) Guwahati Bench too

9. k much pain to settle issues raised in the application. It held as follows: (1) Select List of 2004 cannot be sustained in law particularly when respon dents have followed IPS (Appointment by Promotion) Regulations, 1955 as amended on 31-01-2005. Said Regulations were in applicable for the select list of 2004. However, said amendment would have it full and complete application for the sele ct list of 2005. (2) Notification dated 31-05-2007 would require necessary amendment, if any, subject to out come of Review Selection Committee to be held in accordance of l aw disregard to aforesaid amendment, which exercise shall be carried out expedit iously as possible not later than a period of three months from the date of rec eipt of this order. The State Government was further directed by the learned Tribunal to place compl ete and actual factual aspects in regard to applicant Guneswar Duwari vis-à-vis ACR before the UPSC for its proper, just and fair consideration. From the pleaded facts, the stand taken by the respondent(s), n 10. ow petitioners in the original applications and the law, the following basic iss ues have cropped up before us: (i) Whether the composition of the selection Committee was in accordance wi th the mandate of Regulation 3 of IPS (Appointment by Promotion) Regulations, 19 55; (ii) Whether selection made by the committee for filling up the vacancies for the year 2004 is valid; and Whether non placement of required actual factual aspects in respect of (iii) applicant/respondent Guneswar Duwari by the State Govt. before UPSC affected the selection for the year 2004 and 2005. At this stage it would be pertinent to state that the selection committee consid ered the case of Dilip Kr. Baruah for the year 2005, Guneswar Duwari for the yea r 2004 and 2005. Selection of Dilip Kr. Baruah was turned down on account of his over age, while Duwari’s selection was turned down for his grading as (cid:28)good (cid:29) in the ACR.

11. Before answering the aforesaid basic issues, it would be apposit e for us to refer, rather place Regulation 3 of IPS (Appointment by Promotion) R egulations, 1955, which came to be substituted by an amendment in the year 2005, giving effect to from 31-01-2005. Relevant excerpts of the amended Regulation 3 read as follows: Constitution of the Committee to make selection- (1) There shall be cons (cid:28)3. tituted for a State Cadre or a Joint Cadre specified in column 2 of the Schedule , a Committee consisting of the Chairman of the Commission or where the Chairman is unable to attend any other member of the Commission representing it and othe r members specified in the corresponding entry of column 3 of the Schedule: Provided that- (i) Commission shall be a person who is not a member of an All India Service; (ii) the nominees of the Government of India shall not belong to the cadre of no member of the Committee other than the Chairman or the member of the the State for which the meeting of the Committee is to be held; and The Chairman or the member of the Commission shall preside at all meetin the Central Government may after consultation with the State Government (iii) concerned, amend the Schedule. 3(2) gs of the Committee in which he is present. 3(3) The absence of a member, other than the Chairman or member of the Commis sion, shall not invalidate the proceedings of the Committee if more than half th e members of the Committee had attended the meeting. (cid:29) 3. ll be added, namely:- S.No. In the said regulations, after regulation 10, the following Schedule sha Name of the State Cadre/Joint Cadre Other members of the Committee Arunachal Pradesh, Goa, Mizoram and Union Territories.

1. a) Chief Secre tary of the constituent State for which the meeting is held and in respect of Un ion territory segment, the senior-most Chief Secretary amongst the Chief Secreta ries to the Union Territory administrtions; b) the senior-most Chief Secretary o f the remaining constituents of the Cadre; c) DGP of the constituent state for which the meeting is held. In respect of Union territory segment, the Commissio ner of Police, Delhi; d) Head of Home Department of the constituent segment for which the meeting is held, not below the rank of Secretary to Government. In cas e of Union territory segment, the senior-most officer looking after Home Departm ent among all Union Territories; e) Special/Additional Secretary, Government of India, dealing with AGMUT cadre in Ministry of Home Affairs; and f) two nomine es of Government of India not below the rank of Joint Secretary. 2. Assam-Meghalaya and Manipur- Tripura Joint Cadres. a) Chief Secret ary to the Governments of the constituent States; b) Director Generals of Police of the constituent States; and c) two nominees of Government of India not bel ow the rank of Joint Secretary. a) Chief Secretary of the State Government; b) Secreta 3. ry, Home Department or Principal Secretary (Home) of the State Government as the case may be ; c) the Director General of Police of the State Govt.; and d) tw Other Cadres o nominees of Government of India not below the rank of Joint Secretary. (cid:29) (cid:28)Schedule (see regulation 3) For State other than Joint Cadre: Chief Secretary Officer not below the rank of Secretary to the Government in-charge of H The unamended Regulation 3 of the IPS (Appointment by Promotion) Regulations, 19 55 reads as follows : (cid:28)3. Constitution of the Committee to make selection :- (1) There shall be constituted for a State Cadre or a joint cadre a Committee c onstituting of the Chairman of the Commission or, where the Chairman is unable to attend, any other Member of the Commission representing it and the following other member namely.- (a) (i) (ii) ome Department; (iii) Where no Cadre post of Director-General and Inspector General of Police exists, then the Inspector General of Police; (iv) A nominee of the Government of India not below the rank of Joint Secretary . (b) ritories: (i) (ii) es; OR Where no cadre posts of Director-General and Inspector-General or Police exists, Chief Secretary to the Government of the Constituent States; Director-General and Inspector-General of Police of the Constituent Stat For Joint Cadre posts other than Arunachal Pradesh Goa-Mizoram-Union Ter Director-General and Inspector-General of Police; then the Inspector-General of Police of the constituent States; (iii) ry. (cid:29) (emphasis supplied) A nominee of the Government of India not below the rank of Joint Secreta Thus the basic departure as can be noticed from the perusal of the Regulation 3 is in regard to the (cid:28)Nominee (cid:29) of the Govt. of India not below the rank of Joint Secretary. In the un-amended Regulation 3 of the Regulations, 1955, only a (cid:28)nomi nee (cid:29) was suggested while in the amended Regulation 3 of the Regulations 2005 the re were two nominees.

12. Selection Committee was convened on 27-12-2006 for filing up the vacancies, by promotion, for the year 2004, 2005, and 2006 as well. Regulation 3 of IPS (Appointment by Promotion) Rgulation, 1955 was amended in the year 2005 giving effect to on and from 31-01-2005. Selection committee, so constituted as per amended Regulation, cannot legally consider the eligibility of the candidat es for the vacancies of 2004 and even for the vacancies arising on the 1st day o f 2005. Vacancies for the year 2004 and 2005 mean vacancies arising on the 1st d ay of January 2004 and 2005 and not thereafter. Admittedly, selection committee was constituted under amended Regulation.

13. Un-amended Regulation provided two kinds of committees namely, f or State other than Joint Cadre and for State where Joint Cadre is in existence. Since we are concerned with Assam Meghalaya, which is a joint cadre, it is sub- rule 3(1)(b) of the un-amended regulation which would be relevant for our consi deration. Un-amended regulation would reveal that it did not authorize nominatio n of more than one officer of the rank of Joint Secretary of the Govt. of India, while under amended regulation, it provided two nominees of Govt. of India not below the rank of Joint Secretary in case of Assam-Meghalaya Joint cadre. We hav e already indicated herein before that vacancies are for 2004, 2005 and 2006 as well. Regulation 3 of the IPS (Appointment by Promotion) Regulation 1955 being amended in the year 2005, giving effect to on and from 31-1-2005, the selectio n committee constituted under amended regulation, therefore, cannot legally sele ct the candidates for filling up the vacancies for the year 2004 and vacancies a rising on the 1st day of January, 2005. Regulation 5 of the Regulations provides provision for preparati

14. on of a list of suitable officers. It reads as follows: (cid:28)5. PREPARATION OF A LIST OF SUITABLE OFFICERS:- 5(1) Each Committee shall ordinarily meet every year and prepare a list of su ch members of the State Police Service as are held by them to be suitable for pr omotion 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 consultati on with the State government concerned, and shall not exceed the number of subst antive 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 yea r 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 member s of the State Police Service under rule 9 of the Recruitment Rules; Provided further that where no meeting of the Committee could be held during a y ear for any reason other than that provided for in the first proviso as and when the Committee meets again , the Select List shall be prepared separately for ea ch year during which the Committee could not meet as on the 31st December of eac h year. EXPLANATION:- In case of Joint Cadres, a separate select list shall be prepared in respect of each State Police Service. 5(2) The Committee shall consider for inclusion to the said list, the cases o f members of the State Police Services in the order of seniority in that service of a number which is equal to three times the number referred in sub-regulatio n(1). Provided that such restriction shall not apply in respect of a State where the t otal number of eligible officers is less than three times the maximum permissibl e size of the Select List and in such a case the Committee shall consider all th e eligible officers; Provided further that in computing the number for inclusion in the field of cons ideration, the number of officers referred to in sub-regulation(3) shall be excl ude; 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 for which th e Select List is prepared he is substantive in the State Police Serivice and has completed not less than eight year of continuous service( Whether officiating o r substantive) in the post of Deputy Superintendent of Police or in any other po st or posts declared equivalent thereto by the State Government. Provided also that in respect of any released Emergency Commissioned or Short Se rvice Commissioned officers appointed to the State Police Service, eight years o f continuous service as required under the preceding proviso shall be counted fr om the deemed date of their appointment to that service, subject to the conditio n that such officers shall be eligible for consideration if they have completed not less that four yeas of actual continuous service, on the 1st day of January of the year for which the Select List is prepared, in the post of Deputy Superin tendent of Police or in any other post or posts declared equivalent thereto by t he 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 Police Service of the constituent State, by the Government of that State. 5(2)(A): Deleted. 5(3): The Committee shall not consider the cases of the member of the State Po lice Service who have attained the age of 54 years on the first day of January o f the year for which the Select List is prepared: Provided that a member of the State Police Service whose name appears in the Sel ect List in force immediately before the date of the meeting of the Committee a nd who has not been appointed to the service only because he was included provis ionally in the Select List shall be considered for inclusion in the fresh list t o be prepared by the Committee, even if he has in the meanwhile, attained the ag e of fifty four years. Provided further that a member of the State Police Service who has attained the age of fifty four years on the first day of January of the year for which the Se lect List is prepared shall be considered by the Committee, if he was eligible f or consideration on the first day of (cid:28)January of the year or any of the years im mediately preceding the year in which such meeting is held but could not conside red as no meeting of the Committee was held during such preceding year or years under item (b) of the proviso to sub-regulation(1) (cid:29).

5.(3)(A) State Police Service who had been included in an earlier select list and - The Committee shall not consider the case of such member of the had expressed his unwillingness for appointment to the service under reg a) ulation 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 ex pressing his unwillingness to be considered for appointment to the service; b) ion 9(a). was not appointed to the service by the Central Government under regulat 5(4) The Selection Committee shall classify the eligible officers as ’Outstan ding’, ’Very good’, ’Good’, and ’unfit’ as the case may be on an overall relativ e assessment of their service records. 5(5) The List shall be prepared by including the required number of names fir st from amongst the officers finally classified as ’outstanding’ then from among st those similarly classified as ’Very Good’ and thereafter from amongst those s imilarly classified as ’Good’ and the order of names inter-se within each catego ry shall be in the order of their seniority in the State Police 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 resp ect of such an officer or any proceedings, departmental or criminal are pending against him or anything adverse against him which renders him unsuitable for a ppointment to the service has come to the notice of the State Government. Provided further that while preparing yearwise select lists for m ore than one y ear pursuant to the 2nd proviso to sub regulation (1), the officer included prov isionally in any of the Select List so prepared shall be considered for inclusio n 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 si ze of the select list determined by the Central Government for such year. EXPLANATION I: The proceedings shall be treated as pending only if a charge-shee t has actually been issued to the officer or filed in a Court as case may be. EXPLANATION II: The adverse thing which came to the notice of the State Governme nt rendering him unsuitable for appointment to the service shall be treated as h aving come to the notice of the State only if the details of the same have been communicated to the Central Government and the Central Government is satisfied t hat the details furnished by the State Government have a bearing on the suitabil ity of the officer and investigation thereof is essential. (cid:29)

15. It therefore, postulates that substantive vacancy(s) should exis t/occur on the 1st day of January. Thus, for filling up the vacancy(s) for the year 2004, the selection committee, so constituted, cannot be said to be constit uted per mandate of Regulation 3 of the IPS (Appointment by Promotion) Regulatio n, 1955.

16. In the case of Y.V.Rangaiah and others Vs. J. Sreenivasa Rao an d Others [(1983) SCC ( L & S) 382] it was held that vacancies in the post occur ring prior to the amendment have to be filled up in accordance with the un-amand ed rules. The learned tribunal taking the above ratio held that the procedure ad opted by the UPSC in adopting IPS (Appointment by Promotion) Regulation, 2005 no tified on 31-1-2005 certainly would not be applicable to the select list of 2004 . The Tribunal on consideration of the materials on record came to the con (cid:28)6. clusion that the vacancies that arose between the preparation of the panels in D ecember, 1975 and April, 1977 were eight, and that there was no reason why panel for that period should not have been, drawn up at all. It is true that after Oc tober 18, 1975 the zones came into existence and, therefore, promotions to the g rade of Sub-Registrar were required to be made on zonal basis, but after the per sonnel had been allocated to various zones, the task of preparing the annual pan el with reference to the vacancies arising during the period 1976-77 should have been taken up on the basis of the seniority list for Zone IV. Had such a list b een prepared according to the Andhra Pradesh Registration and Subordinate Servic e Rules, the eligibility of the candidates would naturally have been considered without reference to the amendment issued in March, 1977. On these findings the Tribunal held that the action taken by the Inspector-General of Registration and stamps to make appointments against vacancies arising during the period 1976-77 from amongst the ’left-overs’ of the panels drawn up in April, 1975 and to disp ense with the preparation of panel for 1976-77 was in violation of the rules and thus liable to be set aside, and it directed the State of Andhra Pradesh and th e Inspector-General of Registration and Stamps to draw up a fresh panel for the year 1976-77 with reference to the vacancies that arose during that period. Stri ctly in accordance with the rules as they existed at the time and the vacancies pertaining to that period should be filled on the basis of such panel. Since the amendment to the rules was made in March, 1977, it follows that for vacancies r elating to the panel year 1977-78 and subsequent years the panels will have to b e prepared in accordance with the rules as they were amended by G.O. Ms. No. 265 -Revenue (UI) dated March 22, 1977. (cid:29)

17. In our considered view, the above ratio squarely prevails upon t he present cases at our hands. We are unable to evolve a different view than tha t of the view taken by the learned tribunal in regard to the vacancy(s) occurrin g for the year 2004. Regulation 5 only deals with preparation of list of suitabl e officers. It prescribes the number of substantive vacancies in existence as on the 1st day of January of the year. Therefore, selection committee is required to be held as per regulation (5) prevalent at that time. The select list for 200 4, therefore, could not have been prepared by a committee constituted as per man date of the amended Regulation, 2005, notified on 31-1-2005.

18. As it appears to u, the case of respondent Dilip Kr. Baruah was considered for the vacancies of the year 2005. But his case was turned down due to his over age as on 1st day of January, 2005. He was found to have crossed 54 years as on 1-1-2005. It would appear to us that the selection committee was co nstituted for the vacancy(s) 2004, 2005 and 2006 as well. Therefore, for the vac ancy(s), for the year 2004, respondent Dilip kr. Baruah would have been eligible since he would not certainly have crossed 54 years as on 1-1-2004.

19. Regulation 5(3) of the Regulations provides the upper age limit. It says that the committee shall not consider the cases of members of the State Police Service who have attained the age of 54 years on the 1st day of January of the year for which the select list is prepared. Respondent Dilip Kr. Baruah w as eliminated for attaining 54 years as on 1st day of January, 2005. But he coul d not have been eliminated for the vacancy(s) for the year 2004, had the selecti on committee been constituted as per mandate of Regulation 3 of the unamended Regulation, 1955. By constituting a selection com mittee as per mandate of the amended Regulation 2005, elimination of Dilip Kr. Baruah of the vacancy(s) for the year 2004 would be apparently illegal. Learned tribunal after meticulous consideration of the facts and the law rightly, rather validly, held that elimination of Dilip Kr. Baruah is illegal and therefore, se lect list for the year 2004 cannot be sustained in law when the petitioners foll owed IPS (Appointment by Promotion) Regulation, 2005 as amended on 31-1-2005. It was therefore, rightly observed that the notification dated 31-05-2007 would re quire necessary amendment, if any, subject to out come of Review Selection Commi ttee to be held in accordance with law. It was brought to our notice at the time of argument by the lear 20. ned counsel for the respondent that elimination of Guneswar Duwari( respondent i n W.P(c) No. 5847 of 2010) would also be illegal since no complete and actual an d factual aspects vis-à-vis ACRs were placed for consideration while considering his case for the year 2004 and 2005. Though Sri Duwari (respondent No. 1 in WP( C) No. 5847 of 2010) had been under cloud for period from 29-7-1999 to 28-9-2001 and was facing disciplinary proceedings, he was ultimately exonerated and peri od of suspension from 29-7-1999 to 28-9-2001 was regularized as on duty for all purposes vide order dated 10-2-2006, the factum of exoneration and regularizatio n of the period of suspension from duty for all purposes had not been communicat ed rather placed before the committee for consideration. Non-placement of all ma terial aspects vis-à-vis ACR in respect of sri Duwari caused prejudice to him. H ad all those matters been placed, the committee could have considered his case. His elimination on account of default on the part of the State Govt., therefore, in our considered opinion render the select list for the year 2004 and 2005 inv alid. The findings of the learned tribunal in this respect and direction issued also do not, in our considered view, warrant any interference. Arguments advanced by the learned CGC failed to impress us and w 21. e, therefore, reject his submissions. On the other hand arguments advanced by Sr i. M. K. Choudhury, learned sr. counsel appear acceptable in the facts and circu mstances of the cases and the law. We, therefore, are unable to record our disag reement to the impugned common judgment rendered by the learned CAT. The impugne d judgment is, therefore, affirmed.

22. Writ petitions stand dismissed. No costs.