B. Gopal v. Director General, Central Industrial Security Force (CISF) Head Quarters; Union of India; UPSC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **TUESDAY, THE 27TH DAY OF NOVEMBER 2012/6TH AGRAHAYANA 1934** **WP(C).No. 11975 of 2012 (V) ---------------------------** **PETITIONER(S) : ----------------------** **B.GOPAL, AGED 59 YEARS, COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE, CISF UNIT, FACT LTD., UDYOGAMANDAL COCHIN - 683501.** **BY ADVS.SRI.G.SHRIKUMAR (SR.) SRI.SREEJITH S.NAIR SRI.K.G.JITHU JAGANNATH** **RESPONDENT(S) :** **-------------------------** **1. THE DIRECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE (CISF) HEAD QUARTERS, BLOCK NO. 13, CGO COMPLEX, LODHI ROAD, NEW DELHI - 110 003.** **2. THE UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI -110 001.** **3. THE UNION PUBLIC SERVICE COMMISSION, SHAHJAHAN ROAD, DHOLPUR HOUSE, NEW DELHI, REPRESENTED BY ITS SECRETARY.** **R1 & R2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R3 BY ADV. SRI.GEORGE JOSEPH,SC,UPSC(UNION PUBLIC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.10-2012, THE COURT ON THE 27.11.2012 DELIVERED THE FOLLOWING:** ## **AMV** ## **WP(C).No. 11975 of 2012 (V)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** ## **EXHIBIT P1: COPY OF THE REVISED GUIDELINES DATE 08-02-2002.** - **EXHIBIT P2: COPY OF THE ELIGIBILITY LIST OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.** - **EXHIBIT P3: COPY OF THE ORDER DATED 15-12-2010 OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT.** - **EXHIBIT P4: COPY OF THE OFFICE MEMORANDUM NO. 22011/18/87 DATED 09-04-1996.** - **EXHIBIT P5: COPY OF THE MINUTES OF DPC DATED 30-11-2010.** - **EXHIBIT P6: COPY OF THE REPRESENTATION DATED 04-04-2012 ADDRESSED TO THE 1ST RESPONENT THROUGH PROPER CHANNEL.** - **EXHIBIT P7: COPY OF THE COMMUNICATION DATED 08-05-2012 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT.** ## **RESPONDENTS' EXHIBITS :** - **IA NO.11675/12 - R1 (A) : COPY OF THE OFFICE MEMORANDUM DATED 08.02.2002.** - **R1 (B) : COPY OF THE OFFICE MEMORANDUM DATED 10.04.1989.** - **R1 (C) : COPY OF THE OFFICE MEMORANDUM DATED 09.04.1996.** - **IA NO.12594/12 - R1 (A) : COPY OF THE OFFICE MEMORANDUM DATED 10.04.1989.** - **R1 (B) : COPY OF THE OFFICE MEMORANDUM DATED 12.10.1998.** ## **/TRUE COPY/** ## **P.A.TO JUDGE** ## **AMV** ## **P.R. RAMACHANDRA MENON, J.** ## **---------------------------------------** ## **W.P.(C). 11975 of 2012 ---------------------------------------Dated this the 27[th] day of November, 2012** ## **JUDGMENT** Denial of promotion to the post of 'Senior Commandant' to one of the vacancies which arose during the year 2009-2010 is under challenge. 2. The petitioner joined service of the respondents as a Sub Inspector in the year 1976 and was promoted to the rank of Commandant on 24.5.2006. He is presently working at the CISF Unit, FACT, Udyogamandal and is due for retirement on 31.1.2013. The next promotion available is to the cadre of Senior Commandant and the same is governed by Ext.P1, Revised Guidelines issued by the Ministry of Personnel, Public Grievances and Pension Department of Personnel and Training, dated 8.2.2002. As per the said guidelines, merit has to be assessed by the DPC, and the Officers who are graded 'fit' are to be included in the select panel, on the basis of their inter se seniority, if any. 3. In respect of the year 2009-2010, 15 vacancies of W.P.C. No.No.11975 of 2012 -2- Senior Commandant were reported by the Ministry to the UPSC and the petitioner came to be included in the zone of consideration, having placed at Sl.No.25. Copy of the eligibility list of Commandants for promotion as above has been produced as Ext.P2. By virtue of the relevant norms, persons who are to retire from the service shortly and such others as specified are not liable to be included in the 'select list'. To meet the contingency, by virtue of Ext.P4 Office Memorandum dated 9.4.1996, an ' **extended panel** ' is liable to be prepared for filling up the vacancies concerned. 4. However, without any regard to the above procedure, Ext.P3 'select list' came to be published on 15.12.2010, promoting only '13' persons, leaving out 2 vacancies without being filled up. As a matter of fact, three persons by name S. Kumberwar, A.K. Srivastawa and Lalji Ram Kaul, placed at Sl.No.16, 20 and 21 of Ext.P2 eligibility list had already retired from the service, as on the date of meeting of the DPC held on 30.11.2010 and as such, 'extended panel' had to be prepared and given effect to. But, in respect of above three instances, W.P.C. No.No.11975 of 2012 -3- 'extended panel' was prepared only in respect of one person Sri. A.K. Srivastawa and the Officer placed at Sl.No.23 in Ext.P2 alone came to be included in Ext.P3 'select list' as Sl.No.13; whereas the persons at Sl.No.24 and 25 (one Tarsem Kumar and the petitioner) were not at all assessed by the DPC, in spite of availability of vacancies. As discernible from Ext.P5 minutes of the meeting and the panel prepared by the DPC (which in turn is stated as per se wrong and illegal in all respects and under challenge), the petitioner contends that, though the mistake was sought to be rectified by filing Ext.P6 representation, the same did not yield any positive result, which made the petitioner to approach this Court for immediate intervention. 5. Respondents 1 and 2 have filed counter affidavit (dated 18.8.2012) stating that the DPC had drawn up a panel as 15+1 (extended panel) for the promotion to the rank of Senior Commandant. Mr. A.K. Srivastawa, Senior Commandant retired with effect from 31.12.2009, i.e., within the 'vacancy year', which led to preparation of extended panel, including the name of Mr. Sreekant Kishore (Sl.No.23 of Ext.P2 extended panel), who in W.P.C. No.No.11975 of 2012 -4- turn was included in Ext.P3 select list. In the case of the other two officers, their retirement was on 1.8.2010 and 31.10.2010 respectively and hence it was not within the 'vacancy year' 20092010. It was accordingly that, they were also shown in the panel of 15 officers forming part of Ext.P5 minutes and it is contended that, this is strictly in tune with the relevant norms specified by Ext.P1 and such other orders issued, which govern the field. It is also stated in paragraph '4' of the counter affidavit that, since all the 15 vacancies were filled up, the merit and candidature of the Officers placed at Sl.No.24 and 25 of Ext.P2 (Mr. Tarsem Kumar and the petitioner) were not assessed by the DPC. This is reiterated in paragraph '6' as well. It is stated that no promotion order was issued in respect of the 2 commandants namely S. Kumberwar and Lalji Ram Kaul, who retired from service with effect from 1.8.2010 and 31.10.2010 respectively, i.e., during the 'vacancy year' 2010-2011, in view of the clear instruction contained in paragraph 6.4.4 of Ext.R1(b) Office Memorandum dated 10.4.1989, which stipulates that, promotion will have only prospective effect, even in cases where vacancy is related to W.P.C. No.No.11975 of 2012 -5- earlier year/s. 6. With reference to the contents of Ext.P4 Office Memorandum (same as R1(c) dated 9.4.1996), it is contended by the respondents that the extended panel shall be only in respect of the Officers who retire within the same year. The retirement of A.K. Srivastawa alone happened in the same year, while, retirement of S. Kumberwar and Lalji Ram kaul was only in the subsequent 'vacancy year' of 2010 – 2011 and hence not liable to be considered for preparation of the extended panel. In response to the contention of the petitioner, that retired persons have been wrongly included in the panel prepared by the DPC held on 30.11.2010 and as to the non consideration of the petitioner, the respondents contend in paragraph '3' that, since Officers senior to the petitioner with prescribed bench mark were available in the 'zone of consideration', the petitioner was not assessed in view of Ext.P1/R1(a) order and further that, the DPC has rightly recommended the Officers who have retired from the service in accordance with the orders issued by the Government. 7. The 3[rd] respondent/UPSC has filed a counter affidavit W.P.C. No.No.11975 of 2012 -6- explaining the limited role of the said respondent and also as to the proceedings held by the DPC with regard to the steps for filling up of the vacancies for the year 2010-2011. It is stated in paragraph '6' that, as the DPC had found sufficient No: of Officers for drawing a panel for promotion to the posts of Senior Commandant, CISF, the petitioner being the last Officer in the 'zone of consideration' at Sl.No.25, was not required to be assessed, for want of vacancies in tune with Ext.P1 Office Memorandum dated 8.2.2002. Reference is also made to paragraph 3.5 of Ext.P1 Office Memorandum, which makes a further reference to Ext.P4 Office Memorandum dated 9.4.1996 as to the scope and extent of preparation of the extended panel. From paragraph '5' onwards, the 3[rd] respondent contends with reference to some judicial precedents, that the merit assessed by the Selection Committee is not liable to be scrutinized by the Court and that the assessment by the DPC/Selection Committee is not open to judicial review, except when the same is tainted with malafides. The verdict passed by the Apex Court in **Nutan Arvind v. Union of India & Another** ( **1996(2) SCC 488)** is W.P.C. No.No.11975 of 2012 -7- quoted to the effect that, when a High Level Committee has to consider the relative merits of candidates to assess the gradings for promotion, the Court cannot sit over the assessment made by the DPC, as an appellate authority. 8. Additional counter affidavit has been filed by respondents 1 and 2 on 18.9.2012, producing copies of the Office Memorandum dated 10.4.1989 and 12.10.1998 as R1(a) and R1 (b) respectively. The wrong description of facts and figures as given in the earlier counter affidavit (which was taken serious note of by this Court) is also sought to be explained as an inadvertent mistake, expressing regrets. It is stated that, by virtue of the relevant norms, though Mr. Kumberwar and Lalji Ram Kaul (Sl.No.10 and 14) were also empanelled for promotion, they could not be promoted, as had already retired from the service, when considered by the DPC on 30.11.2010. As the promotion was to be given effect to only prospectively, even in cases where vacancies related to earlier years, as provided in the OM dated 10.4.1989 produced along with the additional counter affidavit dated 18.9.2012 (different from Ext.R1(a) produced W.P.C. No.No.11975 of 2012 -8- along with counter affidavit dated 18.08.2012), by virtue of Ext.R1(b) OM dated 12.10.1998 produced along with the additional counter affidavit dated 18.09.2012 (different from Ext.R1(b) produced along with the counter affidavit dated 18.08.2012), it is pointed out that, the unfilled vacancies were to be carried forward to be filled up in the next 'vacancy year' 2010-2011. 9. It is stated in paragraph '9' that, the DPC proposal for the vacancy year 2009-2010 was forwarded by the UPSC on 16.11.2009 and the DPC was scheduled to be held on 14.5.2010. In view of the subsequent developments as mentioned in paragraph '9' of the said additional counter affidavit, the DPC could actually meet only on 30.11.2010 and there was some delay. It is added in the subsequent paragraphs that the candidature of the petitioner was considered in respect of the vacancy years 2010-2011, 2011-2012 and 2012-2013 and that, he could not be promoted as he was assessed 'unfit' by the DPC. Since filing of affidavit in a casual manner, particularly with reference to the contents of paragraph '4' and '6' of the counter W.P.C. No.No.11975 of 2012 -9- affidavit dated 18.8.2012 was deprecated by this Court, the concerned deponent has filed a separate affidavit on 24.9.2012, conceding the mistake and expressing regrets and rendering unconditional apology, which in turn was accepted by this Court as per order dated 1.10.2012. 10. Mr. G. Shrikumar, learned Senior counsel appearing for the petitioner submits that, the course and conduct pursued by the respondents by including the 'retired hands' in the select panel, is per se wrong and illegal in all respects and that the proceedings have been finalized without properly understanding the scope and mandate of the relevant Office Memoranda and the guidelines in proper manner, which resulted in filling up of just '13' posts, in spite of the availability of '15' vacancies for the year 2009-2010. The learned counsel also submits that, the contingency by way of retirements etc., and the chance for non obtaining suitable Officers, is visualized in the relevant guidelines/Office Memorandum and it is with this intent that Ext.P4 Office Memorandum dated 9.4.1996, has been issued pointing out the necessity to prepare 'extended panel', to be W.P.C. No.No.11975 of 2012 -10- given effect to, as and when necessitated. 11. The learned counsel further submits that, there is a duty cast upon the respondents to have convened the DPC well on time (which is to be in March or April) and by the time the DPC was convened on 31.11.2010, three Officers had already left the service, whose names could not have been shown in Ext.P5 list. There is no basis for harping upon the words 'same year' as given in Ext.P4 Office Memorandum, as sought to be interpreted by the respondents; which pre-supposes a duty to convene the DPC on time. It is also pointed out that, the 2 Officers by name S.Kuberwar and Lalji Ram Kaul who retired on 1.8.2010 and 31.10.2010 respectively, were also not promoted, referring to the Office memorandum dated 10.4.1989 and admittedly, the 'extended panel' was prepared only in respect of one person i.e., A.K. Srivastawa, whereby the person at Sl.No.21 came to be included as the 13[th] man in Ext.P3 select list. As borne by Ext.P2, the petitioner and the person standing just above the petitioner (Sl.No.24 and 25) were never assessed by the DPC, which is not correct or sustainable, either on facts or in law; submits the W.P.C. No.No.11975 of 2012 -11- learned counsel. 12. Mr. Sanjay, the learned Central Government Counsel representing the respondents submits that the proceedings have been finalized in tune with the revised norms, as explained in the counter affidavit and the additional counter affidavits and that the non consideration of the petitioner at Sl.No.25 is well justified. Similar submission is sought to be made by Mr. George Joseph, learned Standing Counsel for UPSC as well; adding that, no judicial scrutiny is possible with regard to the merits assessed by the Selection Committee, in view of the binding judicial precedents. 13. After hearing both the sides, this Court finds that, the existence of '15' vacancies for the year 2009-2010 is conceded and the promotional exercise could fill up only in '13' vacancies, leaving out 2 vacancies unfilled, in spite of the availability of fit candidates as enlisted in the 'zone of consideration', vide Ext.P2. There is no dispute for the respondents, that the petitioner very much came within the 'zone of consideration' and was placed at Sl.No.25. It is also conceded that the petitioner's merit was not W.P.C. No.No.11975 of 2012 -12- assessed, which is sought to be explained in the counter affidavit stating that the non assessment of petitioner was because of the availability of sufficient candidates who were found fit. If sufficient 'fit' candidates were available to fill up the vacancies, how 'two' vacancies came to be unfilled, is a matter of mystery or it forms a paradox. 14. The respondents seek to justify their action with reference to the Office Memorandum dated 12.10.1998 (Ext.R1 (b) produced along with the additional counter affidavit dated 18.09.2012); the operative portion of which (paragraph 3) reads as follows: “The matter has been examined in consultation with the ministry of Law (Department of Legal Affairs). It may be pointed out in this regard that there is no specific bar in the aforesaid Office Memorandum dated April 10,1989 or any other related instructions of the Department of Personnel and Training for consideration of retired employees, while preparing yearwise panel(s), who were within the W.P.C. No.No.11975 of 2012 -13- zone of consideration in the relevant year(s). According to legal opinion also it would not be in order if eligible employees, who were within the zone of consideration for the relevant year(s) but are not actually in service when the DPC is being held, are not considered while preparing year-wise zone of consideration /panel and, consequently, their juniors are considered (in their places) who would not have been in the zone of consideration if the DPC(s) had been held in time. This is considered imperative to identify the correct zone of consideration for relevant year(s). Names of the retired officials may also be included in the panel(s). such retired officials would, however, have no right for actual promotion. The DPC(s), may, if need be, prepare extended panel(s) following the principles prescribed in the Department of Personnel and Training Office Memorandum No.22011/8/87-Esst.(d) dated April, 9, 1996 ” W.P.C. No.No.11975 of 2012 -14- In Ext.P4 Office Memorandum dated 9.4.1996, it contemplates preparation of panel to meet the contingencies involving retirement of persons coming within the 'zone of consideration' and found fit, who however cannot be promoted to the posts in question, in view of the relevant norms. True, retirement is in respect of the 'same year'. But then, it is to be noted that the DPC has to be convened on time. When the DPC got convened only belatedly, there is no logic in preparing a panel including the names of persons who have already retired from service and by not giving even notional promotion to them, referring to the Office Memorandum dated 10.4.1989, so as to make the promotion only prospective even in respect of earlier years thus consciously creating vacancies to be left out, which cannot be the intention of law makers. The position becomes more clear from the Office Memorandum dated 12.10.1998 (Ext.R1(b)) which has already been extracted above. Though the said O.M. has been sought to be relied on from the part of respondents, to justify the non consideration/non assessment of the petitioner, it is more with reference to the wrong inclusion of W.P.C. No.No.11975 of 2012 -15- junior persons in the **zone of consideration** , who would not have been normally be there in the 'zone of consideration', if the DPC was held on time. The very same O.M. also asserts that, the retired officials, however have no right to get actual promotion and that the DPC **may, if need be, prepare 'extended panel', following the principles prescribed in O.M. dated 9.4.1996.** This virtually means, to meet the contingencies of the retired persons being considered by the belated DPC, preparation of an 'extended panel' in similar tunes with Ext.P4 O.M. dated 9.4.1996 is contemplated and is clearly provided. Retirement of the concerned persons in the 'same year' necessitating preparation of 'extended panel' by the DPC as provided in Ext.P4 is a particular situation; whereas retirement of persons because of belated DPC and the necessity to prepare an 'extended panel' in similar lines as provided in Ext.P4 O.M. dated 9.4.1996 as accepted and recognized vide the O.M. dated 12.10.1998, is a different circumstance. The latter circumstance is the one which is applicable to the case in hand. As such, while O.M. dated 12.10.1998 contemplates carrying forward of juniors who do not W.P.C. No.No.11975 of 2012 -16- come normally within the 'zone of consideration' to the next year, it is not contemplated in respect of persons who have already ' ' come in zone of consideration like the petitioner herein. The O.M. Dated 12.10.1998 clearly enables the respondents to have prepared an 'extended panel' in respect of retired persons because of the 'belated DPC' and to have the said vacancies filled up accordingly. 15. From the above, this Court finds that the course and procedure pursued by the respondents with regard to the filling up of '15' vacancies for the year 2009-2010, by appointing only '13' persons, leaving out 2 vacancies without assessing the merit of the persons enlisted at Sl.No.24 and 25 (Tarsem Kumar and the petitioner respectively) is wrong and unjustified. The impugned proceedings are set aside accordingly. 16. In the above circumstances, the respondents are directed to convene a 'review DPC' to consider and assess the merit of the persons at Sl.No.24 and 25 of Ext.P2 (Tarsem Kumar and the petitioner) respectively, to be promoted to the two 'left over' vacancies of the year 2009-2010 and pass consequential W.P.C. No.No.11975 of 2012 -17- orders forthwith. The proceedings as above shall be finalized in accordance with law, at the earliest, at any rate within one month from the date of receipt of a copy of this judgment. Writ petition is allowed. No cost. **P.R. RAMACHANDRA MENON, JUDGE.** Kp/-