K.C. GEORGEKUTTY v. UNION OF INDIA & OTHERS (OP (CAT) NO. 77 OF 2018, HIGH COURT OF KERALA)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY, THE 14TH DAY OF JUNE 2018 / 24TH JYAISHTA, 1940 OP (CAT).No. 77 of 2018 AGAINST THE ORDER/JUDGMENT IN OA 745/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 26-09-2017 PETITIONER(S)/APPLICANT IN OA: K.C.GEORGEKUTTY, AGED 60, S/O. K.S CLEETUS, (SUPERINTENDENT OF POLICE(RETIRED) (CBCID), HOMICIDE AND HURT WING TRIVANDRUM), RESIDING AT NEDIYAZHIKOM, PULLICHIRA P.O, KOLLAM - 691 304. BY ADV.SRI.P.V.MOHANAN ## RESPONDENT(S)/RESPONDENTS IN OA: ## 1. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI - 110 001. 2. THE SELECTION COMMITTEE FOR INDIAN POLICE SERVICE, REPRESENTED BY THE CHAIRMAN, UNION PUBLIC SERVICE COMMISSION, SHAJAHAN ROAD, NEW DELHI - 110 069. 3. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. ## 4. THE STATE POLICE CHIEF, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM - 695 001. ## 5. K.V JOSEPH, SUPERINTENDENT OF POLICE, SPECIAL BRANCH CID, VIGILANCE AND ANTI-CORRUPTION BUREAU, EASTERN RANGE, KOTTAYAM - 686 001. R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R BY SRI.THOMAS MATHEW NELLIMOOTTIL R3, R4 BY SRI.A.J.VARGHESE, GOVERNMENT PLEADER THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 14-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG OP (CAT).No. 77 of 2018 () ## APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1: TRUE COPY OF THE ORDER IN OA NO.745/2013 DATED 26.9.2017. EXHIBIT P2: TRUE COPY OF THE OA NO.745/2013. EXHIBIT P3: TRUE COPY OF THE REPLY STATEMENT FILED BY THE SECOND RESPONDENT. EXHIBIT P4: TRUE COPY OF THE REPLY STATEMENT FILED BY THE THIRD RESPONDENT. EXHIBIT P5: TRUE COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE. EXHIBIT P6: TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT. EXHIBIT P7: TRUE COPY OF G.O(P) 344/66/PD DATED 22.8.1966. EXHIBIT P8 TRUE COPY OF THE INDIAN POLICE SERVICE (APPOINTMENT BY PROMOTION) REGULATIONS, 1955. RESPONDENT'S EXHIBITS - NIL TRUE COPY P.A TO JUDGE ## **K.SURENDRA MOHAN & ANNIE JOHN, JJ.** ---------------------------------------------------------------------------O.P.(CAT).No.77 of 2018 ----------------------------------------------------------------------------Dated this the 14[th] day of June, 2018 ## **J U D G M E N T** ## Surendra Mohan, J. The petitioner is before us aggrieved by the order dated 26.09.2017 of the Central Administrative Tribunal, Ernakulam Bench, dismissing O.A.No.745 of 2013 filed by him. He had filed the original application complaining that he had not been selected for being conferred with Indian Police Service (IPS) during the year 2011. He had retired from service on 28.02.2013. Petitioner was included in the zone of consideration for selection and appointment to the Indian Police Service (IPS), Kerala cadre in the promotion quota for the year 2011. His case is that, his service records including ACRs and other details were forwarded by the State of Kerala to the Selection Committee constituted by the 2[nd] respondent, Union Public Service Commission (hereinafter referred to as the Commission, for short). 2. According to the petitioner, his ACRs for the period from 02.01.2007 to 08.06.2008, 04.12.2009 to 11.02.2011 and **W.P.(C) No.23446/16** **2** 24.06.2004 to 09.05.2005 were sent by the State Government to the Committee without communicating to him. It is contended that non communication of the ACRs was a violation of the guidelines. He had submitted a representation to the Government to upgrade the below bench mark entries in the ACRs for the periods mentioned above. The reviewing authorities reviewed their earlier gradings and upgraded the entries as “very good”. Such upgraded ACRs were forwarded to the 3[rd] respondent by the State Police Chief as per Annexure A12(2) proceedings dated 16.03.2001 for necessary action. However, the State Government did not send the said ACRs to the Selection Committee. Instead, by Annexure A13 proceedings dated 25.06.2013, request of the petitioner was rejected. 3. It is contended that, had his reviewed ACRs been placed before the Selection Committee, he would have been selected in preference to the 5[th] respondent, who is junior to him. Therefore, he sought for the issue of appropriate directions from the Central Administrative Tribunal for the purpose of having his name included in the select list and to appoint him to IPS (Kerala) cadre in the promotion quota. 4. The contentions of the petitioner were contested by the 2[nd] respondent by filing counter affidavit. In the counter **W.P.(C) No.23446/16** **3** affidavit it was contended that the role of the Commission was to convene the Selection Committee in consultation with the State Government and Government of India. The responsibility of sending the reports and connected documents for consideration of the Committee was on the State Government. Therefore, all documents like ACR dossiers, seniority list, eligibility list based on the seniority list, integrity certificate, certificates regarding communication of adverse remarks and certificates regarding pending disciplinary/criminal proceedings, penalties etc. had to be forwarded by the State Government. Accordingly, the matter was considered on the basis of documents produced. The consideration was done properly and in accordance with law. According to the State Government, the service records of the petitioner were forwarded to the Selection Committee along with a list of persons included in the zone of consideration. No representation had been made by the petitioner in relation to the ACRs mentioned in the original application. The representation seeking up-gradation of the entries in his ACRs was made only subsequently. The Selection Committee had met on 21.12.2012 and prepared a select list. It was only long thereafter that the representation of the petitioner was received. 5. The 5[th] respondent also filed a separate reply **W.P.(C) No.23446/16** **4** statement contending that all the relevant documents had been forwarded by the State Government to the Selection Committee and the selection had been conducted in accordance with rules and guidelines applicable. 6. The Central Administrative Tribunal considered the respective contentions and found that the representation of the petitioner had been made after he had retired from service and that the manner in which the entries in his ACRs were altered and substituted as “very good” was obviously with the object of salvaging the damage caused to his career by the entries. The Selection Committee has to consider the suitability of the persons not only based on the records produced before it but also on the basis of an overall assessment of the merit and suitability condition of the eligible candidates. The Central Administrative Tribunal found that there were no grounds to grant any of the reliefs sought by the petitioner. Accordingly, original application has been dismissed. The aggrieved petitioner is before us. 7. According to Sri.P.V.Mohanan, learned counsel for the petitioner, considering the fact that the entries in the ACRs of the petitioner had been altered to “very good” by a reconsideration, the suitability for being conferred with IPS **W.P.(C) No.23446/16** **5** ought to have been done. The learned counsel has taken us through the various provisions available in the guidelines as well as regulations and explained to us the nature of the consideration that the Selection Committee is required to undertake while examining the suitability of persons for being conferred with IPS. In the light of the guidelines, therefore, it is contended that the revised entries in the ACRs of the petitioner ought to have been communicated to the Selection Committee. It is also contended that though the Selection Committee had met on 21.12.2012 the select list was finalised only on 05.07.2013. Therefore, there was sufficient time for the State Government to forward the revised entries in the ACRs also for consideration of the Selection Committee. Instead, by Annexure A13 proceedings the State Government rejected the request of the petitioner to have the revised ACRs forwarded. Consequently, it is contended that substantial prejudice has been caused to the petitioner. It is contended that, in the circumstances, therefore, it is necessary that this Court directs the Selection Committee to conduct a review of the selection that was made and to re-cast the select list. The counsel also contends that two of the persons whose names find places in the select list had not been promoted for the reason that they had **W.P.(C) No.23446/16** **6** not cleared the deficiencies noticed in their cases. Therefore, though eight vacancies were available for the year 2011, only six persons were promoted. For the above reason, it is pointed out that there is no harm in including the petitioner also. 8. Sri.Thomas Mathew Nellimoottil, who appears for the respondents submits that the Selection Committee had considered the case of each of the persons who had entered the zone of consideration for promotion. The consideration was done not merely on the basis of records furnished by the State Government but also independently, on the basis of their service records. The ACRs constitute only one of the inputs that goes into the consideration of the suitability of each candidate. Even according to the petitioner, the entries in his ACRs were revised only subsequent to the selection that was conducted and after his retirement. It is therefore, contended that there are absolutely no grounds for a reconsideration of the selection. The Central Administrative Tribunal has therefore, rightly declined interference. The counsel places reliance on an unreported decision of a Division Bench of this Court dated 20.07.2009 in W.P.(C).No.20313 of 2009 in support of the contention that no review is permissible. The said case involved appointment to the Indian Forest Service (IFS), where an integrity certificate had **W.P.(C) No.23446/16** **7** not been issued by the State Government, as required, within the stipulated time. It has been held that, subsequent issue of an integrity certificate would not justify a review of the matter and that there is no provision for extension of time. The counsel places reliance on another Division Bench decision of this court, **Union Public Service Commission and Another v. A.Mohanan and others [2010(3) KHC** 241]. The learned Government Pleader also supports the above contentions. 9. Heard. We have considered the contentions advanced before us carefully. It is not in dispute that, the petitioner was in the zone of consideration for promotion to the cadre of IPS during the year 2011. He was also therefore, considered for selection. However, at the time of his consideration, his relevant ACRs showed an overall remark of “satisfactory”. Copies of his ACRs are produced as Annexures A3, A4 and A5. He is described in general as “mediocre”. Subsequent ACRs also described his performance as “satisfactory”. It was on the basis of the above entries that he was considered by the Selection Committee that met on 21.12.2012. He was not found suitable. 10. It is to be noted that he had retired from service on 28.02.2013. It appears that after his retirement he had sought for a review of the remarks made by the reviewing authority. **W.P.(C) No.23446/16** **8** Accordingly, as per Annexure A12(3) dated 09.03.2013 the State Police Chief appears to have been revised the remarks of the petitioner as “very good”. As per Annexure A12(a) dated 13.03.2013 the District Police Chief, Kozhikode has also upgraded the remarks of the petitioner from “satisfactory” to “good”. Annexure A12(4) dated 07.03.2012 shows that another officer who was also the State Police Chief had upgraded her opinion of the performance of the petitioner to “very good”. It is clear from the dates recorded above that all the above proceedings had come after the retirement of the petitioner as well as after the date of his consideration by the Selection Committee on 21.12.2012. It was only subsequently that a request to the State Government for forwarding the revised ACRs of the petitioner to the Selection Committee was made as per Annexure A13. The State Government declined to accede to the said request. Though it is stated that the selection list was finalised only on 05.07.2013, we are not satisfied that any prejudice has been caused to the petitioner by the refusal to forward the revised ACRs to the Selection Committee as requested by him. This is for the reason that the Selection Committee had considered his suitability and had not found him suitable in the year 2012 itself. **W.P.(C) No.23446/16** **9** 11. The Central Administrative Tribunal has expressed some doubts regarding the manner in which the assessment of the performance of the petitioner was altered from “satisfactory” to “very good” after his retirement. We also have our own doubts about the said action. The assessment made by the reviewing officers subsequently, upgrading their assessments after the retirement of the petitioner has to be viewed with skepticism. We further notice that though the superior officers have revised their opinions, the assessment made by the reporting officers in each of the ACRs remain the same and unaltered, as “satisfactory”. For the forgoing reasons, we find no grounds to entertain this original petition and the same is accordingly dismissed. Sd/- ## **K.SURENDRA MOHAN, JUDGE** Sd/- **ANNIE JOHN, JUDGE** TRUE COPY P.A TO JUDGE DG **W.P.(C) No.23446/16** **10**