V.R. Reghu Varma v. Union of India & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** **O.P (CAT).No.947 OF 2013(Z)** **AGAINST THE ORDER IN OA 796/2011 DATED 10-10-2012 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** **V.R.REGHU VARMA, AGED 56 YEARS, S/O KRISHNAN, SUPERINTENDENT OF POLICE, (NON- IPS), ASSISTANT DIRECTOR ADMINISTRATION KERALA POLICE ACADEMY (KPA)-(RETIRED) RESIDING AT VAYAILI VEEDU, PRAKKULAM, KANJAVELY P.O, KOLLAM** **BY ADV. SRI.P.V.MOHANAN** ## **RESPONDENT/S:** - **1 THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI-110012.** - **2 THE SELECTION COMMITTEE FOR SELECTION TO INDIAN POLICE SERVICE, REPRESENTED BY CHGAIRMAN, UNION PUBLIC SERVICE COMMISSION, SHAJAHAN ROAD, NEW DELHI-110003.** - **3 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM-695001.** - **4 K.P PHILIP, SUPERINTENDENT OF POLICE, COMMANDANT, KERALA ARMED POLICE (V) BATTALION, MANIYAR, PATHANAMTHITTA DISTRICT.** **- 2 -** **OP(CAT).947 of 2013** **5 K.K. BALACHANDRAN, SUPERINTENDENT OF POLICE & VIGILANCE OFFICER, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM 695001** **R1 BY ADV. SRI.P.K.RAMKUMAR, CGC. R2 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, UPSC. R3 BY SR.GP SRI.ANTONY MUKKATH R4 BY ADV. SRI.S.SREEKUMAR (SR). R4 BY ADV. SRI.P.PRIJITH R4-R5 BY ADV. SRI.P.MARTIN JOSE** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 3 -** **OP(CAT).947 of 2013** **K.Vinod Chandran & V.G.Arun, JJ. -------------------------------O.P (CAT) No.947 of 2013-Z -------------------------------Dated, this the 24[th] day of October, 2019** ## **JUDGMENT** **Vinod Chandran, J.** **The petitioner-applicant, now retired, was an aspirant to the Indian Police Service (Kerala cadre) for the year 2008. The petitioner challenged his non-inclusion in the select list prepared, despite he being the senior-most. The Tribunal rejected his claim, by the impugned order.** **2. Sri.P.V.Mohanan, learned Counsel for the petitioner-applicant, would take us through the Indian Police Service (Appointment by Promotion) Regulations, 1955 [Exhibit P6] and the Guidelines/Procedures for preparation of list of suitable officers by the Selection Committee for promotion to the IAS/IPS/IFS in terms of Regulation 5(4) and 5(5) of the Promotion Regulations and argue that the Tribunal completely misdirected itself. The Tribunal found, since by the Regulation 7 (hereinafter 'Reg.'.) the list itself has** **- 4 -** **OP(CAT).947 of 2013** **expired, there is no question of including the name of the petitioner-applicant. An identical view has been taken by another Division Bench in O.P(CAT) No.207 of 2019 dated 05.09.2019 [** _**A.Anilkumar v**_ **.** _**Union of India & Ors**_ **], which is argued to be palpably wrong, since there is no statutory provision curtailing the powers of the Administrative Tribunal as also the High Court especially going by the binding precedent of the Hon'ble Supreme Court in** _**L.Chandrakumar v. Union of India [(1997) 3 SCC 261]**_ **.** **3. It is also contended that the petitioner was imposed with a penalty of 'censure' in the years 2000 and 2004, the currency of which can only remain for one year from such imposition; which was taken into consideration in the 2008 selection to find him 'unfit'. The illegal and arbitrary action of the Selection Committee in having taken into account a penalty long after the period of its currency had expired, even as per the guidelines of the UPSC, has to be set aside by this Court and a review carried out insofar as the selection for the year 2008 by the** **- 5 -** **OP(CAT).947 of 2013** **Selection Committee. It is also contended that in view of the fact that the comparative merit of officers coming within the zone of consideration is taken into account by the Selection Committee; a 'good' entry, though positive in nature, has to be deemed as an adverse entry, which had to be necessarily communicated to the applicant. The non-communication of the entry made in the ACRs prejudices the petitioner-applicant and, hence, he is entitled to be included in the select list without consideration of the assessments made in the ACR which were never communicated to the applicant.** **4. The learned Central Government Counsel, however, points out that the Selection Committee is not regulated by the grading given by the Reporting or Reviewing Officers in the ACRs. An overall consideration of the service particulars is stipulated to determine the grading of the Selection Committee and there is no prejudice caused by the non-communication of the gradings given in the ACR.** **5. The learned Standing Counsel for the UPSC also submits that the Selection Committee grades the** **- 6 -** **OP(CAT).947 of 2013** **officers within the zone of consideration as per an independent assessment made and it is dependent on this assessment that the officers are selected. Reliance is also placed on an unreported decision of this Court in** _**R.Rajendran v**_ **.** _**Union of India & Ors**_ **. [W.P(C) No.20313 of 2009 dated 20.07.2009].** **6. The Regulations, as pointed out by the petitioner's Counsel, is available at Exhibit P6. Reg.5 provides for the preparation of a list of suitable officers, which has to be done by a Selection Committee which ordinarily meets every year. The number of members of the State Police Service to be included in the list shall be determined by the Central Government in consultation with the State Government 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. The zone of consideration is determined on the basis of seniority of the members of the State Police Services; including three times the vacancies as referred to in Reg.5(1). Reg.5(4) talks of classification of the eligible officers as** **- 7 -** **OP(CAT).947 of 2013** **'Outstanding', 'Very Good', 'Good' and 'Unfit' on the basis of an over all relative assessment of their service records by the Selection Committee. The select list is prepared by including those officers classified as 'Outstanding' and then as 'Very Good' and thereafter as 'Good' in the order of their seniority within each category of such assessment. The first proviso to Reg.5(5) permits inclusion of officers provisionally, if the State Government withholds an integrity certificate or any proceedings, departmental or criminal, are pending against him or even when anything adverse against the officer which renders him unsuitable has come to the notice of the State Government. Such officers included provisionally shall be regularly included in the select list if the State Government, within the period when the select list is in force, forwards a proposal to declare such provisionally included officer as 'unconditional'. Reg.7(4) and the proviso therein has resulted in the Tribunal and another Division Bench of this Court finding the powers conferred on them to be denuded,** **- 8 -** **OP(CAT).947 of 2013** **which, it was argued by the learned Counsel for the petitioner, is against the dictum in** _**L.Chandrakumar**_ **.** **7. We would first deal with the contention that the finding of the Division Bench and the Tribunal on the aspect of review. We extract Reg.7(4) hereunder:** **“7(4) The Select List shall remain in force till the 31[st] day of December of the year in which the meeting of the Selection Committee was held with a view to prepare the list under sub-regulation (1) of regulation 5 or up to 60 years from the date of approval of the Select List by the Commission under sub-regulation (1) or as the case may be finally approved under sub-regulation (2) whichever is later.** **xxx xxx xxx** **Provided that where the State Government has forwarded the proposal to declare a provisionally included officer in the Select List as 'Unconditional' to the Commission during the period when the Select List was in force, the Commission shall decide the matter within a period of forty five days or before the date of meeting of the next Selection Committee, whichever is earlier and if the Commission declares the inclusion of the provisionally included officer in the Select List as unconditional and final, the appointment of the concerned officer shall be considered by the** **- 9 -** **OP(CAT).947 of 2013** **Central Government under regulation 9 and such appointment shall not be invalid merely for the reason that it was made after the Select List ceased to be in force.** **xxx xxx xxx”.** ## **8. In fact, the Division Bench in** _**A.Anilkumar**_ **made the extract herein above and held so:** **“The necessary corollary therefore is that the appointment made after the select list has ceased to be in force shall be invalid unless there is a declaration that the inclusion of the officer therein is 'unconditional'. The assessment for the select list cannot survive the select list which has ceased to be in force beyond 31.12.2018 since the meeting of the selection committee was held on 4.7.2018. The petitioner can stake a claim for appointment notwithstanding that the select list has ceased to be in force only if his inclusion in the select list is unconditional”.** **9. We cannot find the finding of the Division Bench to be diluting the powers under Article 226 and 227 of the Constitution, as declared by the Hon'ble Supreme Court in** _**L.Chandrakumar**_ **. The restriction in carrying out the review is only on the authority who brings forth the select list. Admittedly a Selection** **- 10 -** **OP(CAT).947 of 2013** **Committee is constituted to bring out the select list under the Regulations. The only point at which a review can be made, as is seen from Reg.7(5), is when there is an officer included provisionally in the select list brought out, who later is cleared on declaration of 'unconditional' inclusion by the State Government. We cannot find the Division Bench having held such provision to have curtailed the power of the Tribunal or the High Court. But the said 'unconditional' declaration can be acted upon only if it is in the very same year, communicated before the validity of the list expires.** **10. Looking at the facts of the cited case, the 6[th] respondent, C.K.Ramachandran, was an officer who was involved in a custodial death case; but, however, provisionally included in the select list. He was not selected for appointment to the IPS cadre for reason of pendency of the criminal case. The meeting of the Selection Committee was held on 04.07.2018 and therefore the select list can remain in force only till** **31.12.2018. The petitioner therein, A.Anilkumar, who** **- 11 -** **OP(CAT).947 of 2013** **did not figure in the select list, but however was next in turn after the provisionally included officer, sought for a review of the select list. This was on the ground that the 6[th] respondent if not entitled to be considered, the petitioner ought to have been reckoned for the purpose of conferment of IPS. It was in this context that the Division Bench found that there could be no review of the select list after 31.l2.2018, since the meeting of the Selection Committee was held on 04.07.2018. The power of review, as has been established by a number of precedents, can only be exercised if there is a power conferred and within the constraints of the nature of the power conferred. The Regulations permit a review only with respect to a provisional inclusion when that officer is later declared 'unconditional' by the State Government within the validity period of the list. This does not in any way interfere with the power of the Tribunal or the High Court if the procedure resorted for selection itself is found to be arbitrary or illegal.** **11. Having held so, we have to now look at the** **- 12 -** **OP(CAT).947 of 2013** **guidelines as produced at Annexure A6 to the OA. The learned Counsel for the petitioner-applicant specifically took us through the guidelines to contend that the currency of 'censure' is one year from the date on which it was imposed and only if it flows into the Selection Committee Meeting [SCM] year, could there be a grading of 'unfit'. It is the specific contention of the petitioner that he had been imposed with a 'censure' only in 2000 and 2004; both of which were later expunged by the Government in statutory review.** _**De hors**_ **the order in review even if the 'censure' had sustained, that imposed in the year 2000 and 2004 can only be considered to be current for one year.** **12. We look at the assessments made by the Selection Committee, of the applicant, in the various years, which is evident from the counter affidavit of the 1[st] respondent dated 17.11.2017. The officer was considered from 2002 and from 2003, he was senior-most among the officers in the zone of consideration and then from 2005, the second. For the year 2008, as has been argued, the relative overall assessment is 'unfit'** **- 13 -** **OP(CAT).947 of 2013** **for reason of the earlier censure which was not current in the assessment year. The learned Government Pleader, on instructions, submits that there was no censure imposed on the petitioner in 2008 or in 2007. The contention of the learned Counsel for the petitioner is that since currency of censure is only for one year, an 'unfit' grading could be made only if the currency of censure flows into the SCM year. Admittedly there was no censure on the previous year which could be considered for the purpose of grading the officer as 'unfit' in 2008. Sri.Thomas Mathew Nellimoottil, learned Standing Counsel appearing for the UPSC would, however, take us to the guidelines issued by the UPSC of All India Services Branch as on 12.03.2008, wherein Clause 4.6.1(d) is specifically referred to, which is extracted hereunder:** - **“(d) If the currency/effect of the Censure lapses before the SCM year, but is having implications on any of the years in the Assessment Matrix, the Committee would categorise the office as 'Unfit' for the relevant year, in the Assessment Matrix, when the Censure was current. Thereafter, the Overall Assessment of the officer may be made as per the procedure given in Section B.3 above”.** **- 14 -** **OP(CAT).947 of 2013** **13. Hence, even if currency of censure is not there in the SCM year, when considering the petitioner for the year 2009, the consideration made in any of the years within the Assessment Matrix; which is five years, has to be reckoned. Hence, if there is a grading of 'unfit' in any of the five prior years, the candidate would be assessed 'unfit' for the** **consideration year also. Here, obviously the consideration was made for the year 2009. The petitioner was considered 'unfit' due to censure in the year 2004, which comes within the Assessment Matrix, in which year his grading by the Selection Committee had been 'unfit'. There can, hence, be no fault found in such assessment of 'unfit' made in the year 2009.** **14. There is one other contention that the censure was set aside on appeal by the Government. But, that admittedly was after one year of selection year and there is no ground for interfering with the assessment as of now especially when the petitioner has challenged the assessment in the year 2009 first in the** **- 15 -** **OP(CAT).947 of 2013** **year 2011. We also in this context notice that the validity of the list expires on 31[st] December of that year and a consideration by the Selection Committee within the said period, by way of review is permissible for only those who were included provisionally and later certified as unconditional. This cannot extend to situations like that in** _**Anilkumar**_ **and this case, where at the time of selection there was in the first case a criminal case pending against the Officer and here a censure had rendered him unfit in one of the years in the Assessment Matrix. The elimination within the period of validity of the list cannot be held arbitrary or illegal. But if at a later point the Officer is acquitted of the criminal case or the censure is removed in a review; there cannot be a fresh consideration made since then there would be mayhem in so far as those Officers validly selected being liable to be reverted. It is precisely to take in such situations that a specific period of validity for the list is prescribed. In** _**Anilkumar's**_ **case he had a real grievance for reason of the inclusion of his senior,** **- 16 -** **OP(CAT).947 of 2013** **who was charged in a criminal case, provisionally and there was no possibility of the case being concluded within the period of validity prescribed for the list. But the Selection Committee cannot assume that and if there is a possibility of the provisionally included candidate being certified as unconditional, he cannot be deprived of that.** **15. We notice that** _**R.Rajendran**_ **was a case in which the petitioner was the senior-most from 1994 onward. However he was not considered for appointment to the Indian Forest Service for reason of the State Government having not issued an integrity certificate. The reason for denial of integrity certificate was also pendency of a criminal case for offences involving corruption. The officer was acquitted of all the charges in 2008 when there was no criminal case pending. After his acquittal in the first case, he approached the Tribunal for directing inclusion in the list for appointment to IFS for the year 1994-95 declaring him as 'unconditional'. It was found that the Rules provided only an inclusion of an officer who has** **- 17 -** **OP(CAT).947 of 2013** **been included in the selection list as “provisional” and later issued with a declaration of “unconditional” by the State Government within the validity period of the selection list. We hasten to observe that this does not in any manner curtail the power of this Court when the selection itself is found to be illegal or arbitrary and cannot be for facilitation of a consideration long after for the disability having ceased later to the expiry period of the Select List.** **16. Now we have to take into account the contention taken by the petitioner that a down grading has to be communicated. We again look at the guidelines which stipulate the nature of the comparative assessment to be made by the Selection Committee. As we noticed, the Selection Committee makes an overall assessment of the officers coming within the zone of consideration. We specifically refer to Clause 2.3, which is extracted from the guidelines:** **“2.3 In accordance with Regulation 5(4) of the Promotion Regulations, the Selection Committee has to classify the eligible officers as 'Outstanding', 'Very Good', 'Good' or 'Unfit' as the case may be on an overall relative assessment** **- 18 -** **OP(CAT).947 of 2013** **of their service records (i.e. ACRs and the documents kept therein by the competent authority). For making an overall relative assessment, the Committee will not depend solely on the grading recorded by the reporting/ reviewing/accepting authority but will make its independent assessment of the service records of the eligible officers as per the procedure indicated below”.** ## **We also extract Clause 4.2 and 4.4 A(i):** **“4.2 The Section Committee would not be guided merely by the overall grading, if any, that may be recorded in the ACRs but would make its own assessment on the basis of the entries in the ACPs because sometimes the overall grading in an ACR may be inconsistent with the grading under various parameters or attributes. Further, if the Reviewing Authority or the Accepting Authority, as the case may be, has differed from the assessment made by the reporting officer of the Reviewing Authority, as the case may be, the remarks of the latter authority should be taken as the final remarks for the purpose of assessment provided it is apparent from the relevant entries that the higher authority has come to a different assessment consciously after due application of mind. If the remarks of the Reporting Officer, Reviewing Authority are complementary to each other and does not have** **- 19 -** **OP(CAT).947 of 2013** **the effect of overruling the other, then the remarks should be read together and final assessment made by the Selection Committee as indicated in para 4.1. This is also in accordance with the DPC guidelines of DOP&T, as contained in its OM NO.22011/5/86-Estt.(D) dated 10.04.1989 as amended from time to time”.** ## **“4.4** ## **A.** **While finalising the Overall Assessment of the officers [para 3.1 above refers], an officer shall be graded as:** **“Outstanding”, if in the opinion of the Selection Committee, the service records of the officer reflect that he is of outstanding merit possessing exceptional attributes and abilities and these characteristics are reflected in at least four of the ACRs for the last five years including the ACR for the last year (i.e. upto the preceding year for which the Select List is prepared). While grading an officer as “Outstanding”, the following indicative guidelines would be observed:** **(i) Whilst the overall grading in the ACRs will have its relevance, however, in order to have a final view, it will be essential to carefully peruse and assess all the individual attributes/columns in the ACRs like, Work Performance, Targets Achieved, Supervision, Managerial capabilities, personality traits etc before the Committee decides to grade an officer as 'Outstanding'.”** **- 20 -** **OP(CAT).947 of 2013** **Hence, the grading as made by the reporting officer or reviewing authority though material does not influence the Selection Committee. The Selection Committee under the Regulations, looks at the comparative merit from the service records as also the individual attributes reflected from the records to make a grading; based upon which alone inclusion in the select list for the purpose of conferment of IPS is carried out. We do not find any reason to interfere with the comparative assessment made by the Selection Committee and uphold the order of the Tribunal, on the more comprehensive reasons as supplied by us in the above judgment.** **The Original Petition (CAT) would stand dismissed, leaving the parties to suffer their** **respective costs.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** **vku/-** **- 21 -** **OP(CAT).947 of 2013** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE LETTER NO.ESTT.II (1) 30224/99/GW DATED 03/12/2009 ALONG WITH PROCEEDINGS NO. GO(RT) NO.3333/2009/HOME DATED 11/11/2009.** - **ANNEXURE A2 TRUE COPY OF THE PROCEEDINGS GO(RT) NO.1801/2010/HOME DATED 25/05/2010.** **ANNEXURE A3 TRUE COPY OF THE SENIORITY LIST OF DEPUTY SUPERINTENDENT OF POLICE IN THE GENERAL EXECUTIVE BRANCH OF THE POLICE DEPARTMENT AS ON 01/01/2000. ANNEXURE A4 TRUE COPY OF THE PROCEEDINGS NO.15312/SPL.A3/2009/GAD DATED 07/08/2009 INCLUDING THE NAME OF THE APPLICANT.** - **ANNEXURE A5 TRUE COPY OF THE NOTIFICATION NO.I14011/7/2009-IPS.I (II) DATED 07/12/2009.** - **ANNEXURE A6 TRUE COPY OF THE GUIDELINES OF UPSC. ANNEXURE A7 TRUE COPY OF THE PROCEEDINGS GO(MS0 NO.134/89/HOME DATED 15/11/1989.** - **ANNEXURE A8 TRUE COPY OF THE OBJECTION FILED BY SRI. PHILIP NO.A-42/CIO/2011 DATED 10/03/2011.** - **ANNEXURE A9 TRUE COPY OF THE REPRESENTATION DATED 30/11/2012.** **ANNEXURE A10 TRUE COPY OF THE ORDER IN OA NO.221/12 DATED 24/02/2012. EXHIBIT P1 TRUE COPY OF THE ORDER IN OA NO.796/2011 DATED 10/10/2012.** - **EXHIBIT P2 TRUE COPY OF THE ORIGINAL APPLICATION NO.796/2011.** **EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT NO.1.** **EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT NO.2.** **- 22 -** **OP(CAT).947 of 2013** **EXHIBIT P5 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT. EXHIBIT P5 A TRUE COPY OF THE STATEMENT FILED BY THE RESPONDENT NO.4 AND 5. EXHIBIT P6 TRUE COPY OF THE INDIAN POLICE SERVICE (APPOINTMENT BY PROMOTION) REGULATION 1955.** **[ true copy ]**