OA No:- 8 of 2012 on 25-02-2013
CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI
ORIGINAL APPLICATION NO:- 8 of 2012
Dated this Monday, the 25th day of February, 2013
CORAM:- HON'BLE SMT. LEENA MEHENDALE, MEMBER (A)
HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER (J)
Kiran R.Shelar, IPS
Superintendent of Police,
Protection of Civil Rights,
Nashik Range, Nashik.
Residing at: A/3, Gulmohar,
(Govt. Officers Residence)
Behind Alpa - Bachat Bhawan,
7, Queens Garden, Camp,
Pune-411 001 ... Applicant
(By Advocate Shri Amol A.Gatne)
VERSUS
1. The Union of India
Through the Secretary,
Government of India,
Ministry of Home Affairs,
North Block,
New Delhi-110 001
2. The Chairman,
Union Public Service Commission,
Dholpur House,
Shahjahan Road,
New Delhi-110 001
3. State of Maharashtra,
Through the Chief Secretary,
Government of Maharashtra,
Mantralaya,
Mumbai-400 032
4. The Additional Chief Secretary (Home)
Home Department,
Government of Maharashtra,
Mantralaya,
Mumbai-400 032
5. Shri F.K.Patil, IPS
Presently posted as Supdt. of Police
CID, Crime, Maharashtra State,
Pune
Pashan Road,
Opp Pune University Gate,
Pune-411 008
6. Shri S.E.Shinde, IPS
Presently posted as Supdt. of Police,
(Outdoor Training),
Maharashtra Police Academy,
Satpur Road,
Nashik 422 007
7. Shri R.S.Khaire, IPS
Presently posted as Dy.Commrr.of Police,
Zone II, Pune City,
Pune
10, Koyaji Marg, 1st Floor,
Lashkar Police Station Compound,
Pune-411 001
8. Shri S.D.Bodkhe, IPS
Presently posted as Chief Security Officer,
Maharashtra Vidhan Mandal Sachivalaya,
Nariman Point,
Mumbai-400 021
9. Shri S.D.Trymbake, IPS
Presently posted as Commandant,
S.R.P.F., Group I, Ramtekadi,
Hadapsar, Pune-411 022
10. Shri V.N.Salve, IPS
601, Sharad Co.Op.Housing Society,
Garodia Nagar, Ghatkopar (East)
Mumbai 400 077
11. Shri A.V.Patil, IPS
Presently posted at Dy. Commissioner (Admn.),
S.I.D., Maharashtra State, Mumbai.
Office of the Maharashtra Police Mukhyalaya,
Shahid Bhagat Singh Marg,
Mumbai- 400 001
12. Shri P.P.Mutyal, IPS
Presently posted as Supdt.of Police,
Jalgaon, Office of the Supdt.of Police,
Opp New Bus Stand, Jalgaon-425 001.
13. Shri P.N.Raskar, IPS
Presently posting as Supdt.of Police,
Ratnagiri, Office of the Supdt.of Police,
Ratnagiri, 415 612
14. Shri D.M.Phadatare, IPS
Presently posted as Dy. Commrr.of Police,
Zone I, Pune City,
Pharaskhana Building,
3rd Floor,
Budhawar Peth,
Pune 411 002
15. Shri S.S.Solunke, IPS
Presently posted as Supdt.of Police,
Pune Rural Pune,
Office of the Supdt.of Police,
Pune (Rural)
Chavan Nagar, Pashan Road,
Pune-411 008
16. Shri V.R.Chavan, IPS
Presently posted as Dy. Commissioner,
S.I.D., Maharashtra State,
420/32, Police Officer Quarters,
Near Rahul Theatre,
Shivaji Nagar,
Pune 411 005
17. Shri C.G.Daithankar, IPS
Presently posted as Dy.Commrr.of Police,
Zone II, Bhiwandi,
Opp Government Rest House,
Zakat Naka, Bhiwandi 421 302
18. Shri C.H.Wakade, IPS
Presently posted as Commandant,
S.R.P.F., Group II,
Ramtekadi, Vanawadi,
Pune-411 022
19. Shri S.R.Shelar, IPS
Presently posted as Supdt.of Police,
C.I.D., Pune
C/o Shri T.H.Motta
Flat No.20, Fourth Floor,
Profile Eden,
Lane No.8,
Prabhat Road,
Pune-411 004
20. Shri V.M.Jadhav, IPS
Presently posted as Supdt.of Police,
Kolhapur, Office of the Supdt.of Police,
Kasaba Bawada Road,
Kolhapur 400 416 ... Respondents
(By Advocate S/Shri V.S.Masurkar with S.G.Pillai)
O R D E R (ORAL)
Per : Smt. Leena Mehendale, Member (A)
This OA is filed on 22.12.2011 under Section 19 of the Administrative Tribunals Act, 1985 with the prayer that the impugned order dated 27.01.2006 (Annexure A-1), which is a selection list for induction to IPS (appointed by promotion) for the year 2004 be quashed in so far as it overlooks the inclusion of the present applicant. Applicant prays for his inclusion in the said list, on the ground that his ACRs are either “very good” or “outstanding” for the relevant years except for one penalty of “censure” awarded to him on 03.05.2005, which was also set aside on 19.05.2011 in appeal. He further prays that he be allotted 1998 seniority in IPS and be placed above Shri F.K.Patil along with all consequential benefits, including the benefit of selection grade of IPS w.e.f. 19.04.2011.
2. Briefly stated, the applicant was recruited as direct Dy. SP under Maharashtra Police Service and he is a topper of 1984 batch of MPSC ('Maharashtra Public Service Commission'). He claims to have unblemished career with high degree of performance and has undergone some specialized trainings. In the year 1992, on completion of eight years of service in the rank of Dy. SP, under the extant rules, he would come in the zone of consideration for induction to IPS by promotion.
3. In the year 2005, a punishment of censure was imposed upon him by the DGP. ('Director General of Police') Maharashtra vide order dated 03.05.2005 (Annexure A-3). Since, this punishment has a bearing on his prospect of promotion into IPS, we will discuss it elaborately in subsequent paragraphs. He filed his appeal against the punishment on 16.01.2006 (Annexure A-4) and the same was allowed and the penalty of censure was set aside by order dated 19.05.2011 (Annexure A-5).
4. In the interregnum, however, a Selection Committee Meeting was held by UPSC, Delhi on 11.12.2003 for the purpose of promoting the State Police Service Officers into IPS against 3 vacancies, which were available for the year 2002 and 3 more vacancies available for the year 2003. The minutes of the UPSC as Annexure A-6 show that they have scrutinized the performance records of nine officers including the present applicant for the year 2002. It is the normal practice of UPSC to look at all the service records of all the candidates under the zone of consideration and give them overall ranking. It is seem from the record of their file No.7/11/20063- AIS, which is submitted as a part of Annexure A-6 of the OA that first three candidates earned an Overall Relative Assessment of “unfit”, “good”, “unfit” respectively. The remaining six candidates including the applicant earned Overall Relative Assessment of “very good”. The candidates at Serial No.4, 5 and 6 where provisionally selected for the year 2002 subject to the grant of integrity certificate by the State Government. The applicant was the fourth, who was given an Overall Assessment of “very good” and hence was not empaneled for the vacancies of the year 2002.
5. It is further seen from the minutes of the UPSC that they considered 10 officers for the year 2003. Out of them, two were given Overall Relative Assessment of “Outstanding”, six were given “very good”, one was given “unfit”. Hence, the selection for the year 2003 for three vacancies was completed with the inclusion of two candidates who received outstanding and one senior most candidates from those, who have earned “very good”. The present applicant could not be included as he stood at third position from amongst those, who have earned “very good”. Thus, he could not be empaneled even for the year 2003.
6. Thereafter, the UPSC Selection Committee met on 2/3 September, 2005 for filling up 18 vacancies for the year 2004 and three vacancies for the year 2005. By this time the penalty of censure was already imposed on the applicant. It is seem from the UPSC file No.7/11/2005- AIS, which is the minutes of the said Selection Committee Meeting dated 2/3 September, 2005 and which is the part of the Annexure A-10 of the OA that they considered 54 candidates for the year 2004. Here, the applicant stood at seniority position No.3, but was given the Overall Relative Assessment of “unfit”. Since, nobody had obtained outstanding, candidates, who ranked “very good” were considered. The list of 18 candidates, thus, selected for the year 2004, starts with F.K.Patil, who was on seniority position No.4 upto V.M.Jadhav, who is at seniority position No.24. On the same day, the UPSC also considered 12 candidates for the year 2005 against three vacancies. In this list, the present applicant was once again given Overall Relative Assessment of “very good” and he was also high in seniority position, being at serial No.3. Thus, he was finally included in the empanelment for list of promotions to IPS for the selection year of 2005.
7. The applicant pleads that through the above minutes for 2002, 2203, 2004 and 2005 list, he wants to show that his Overall Relative Assessment by UPSC vis-a-vis his other colleagues was “very good” for the year 2002, 2003 and 2005 also. This evidently shows his high caliber. It is only for the year 2004 that his Overall Relative Assessment Grading dropped to “unfit”. This, he claims, is solely because of the show cause notice served upon him on 15.02.2005 and a punishment of censure imposed upon him by DGP vide order dated 03.05.2005. It is pertinent to note that the UPSC Selection Committee Meeting took place on 2nd/3rd September, 2005. Since, the punishment of censure was finally revoked in 2011, he, therefore, prays that his non-inclusion in the list of promotions for the year 2004 should be set aside. He should be given seniority above, all the 16 candidates listed at impugned order Annexure A-1 dated 17.01.2006, who were finally promoted into IPS, as a result of selection of 18 candidates by UPSC against 18 vacancies, of that year (2 candidates were not promoted eventually, in view of cases against them).
8. The applicant states that he has made representations to the Government of Maharashtra on 26.05.2011, 27.06.2011 and 26.09.2011 for being entitled for the selection in the Review Committee Meeting, in the light of setting aside of the penalty dated 19.05.2011, but has not received any Reply so far.
9. The applicant challenges the impugned order dated 27.01.2006 as Annexure A-1, which is the selection list of officers for appointment to IPS by promotion for the year 2004 and pleads for his inclusion in the said list on following grounds:
(i) The said selection was for the year 2004, whereas the charge-sheet on him was served only on 15.02.2005 and punishment of censure was imposed on 03.05.2005. Thus, the UPSC Selection Committee, which met on 02.09.2005 has obviously considered the fact of this punishment in the year 2005 for holding him as “unfit” for the year 2004, which is not justified. As per the Rule 2(I)(1) of the IPS (Appointment by Promotion) Rules 1955, the period to be taken into consideration would be up to 31st December of the last year. Had the Selection Committee met in the year 2004, when there was no charge-sheet against him, he would not have received the relative ranking of “unfit”. Thus, he has suffered because of the delay occurring at the UPSC level in holding the Selection Committee Meeting.
10. The applicant has annexed the statement of Reply by UPSC in another OA No.131/2006, arising out of same selection for 2004, in which another Police Officers M.M.Ranade had challenged his non-inclusion in the empannelment for the year 2004 and 2005. In para 5.1.2 in the said Reply, the UPSC has stated on oath that while assessing the suitability of the eligible officers for promotion to IPS for the year 2004, the Selection Committee took into consideration the ACRs of those officers up to the year 2002-2003. If that be the case, then Annexure A-6 clearly shows that for the selection year of 2003 for which the ACRs upto 2001-2002 were considered, his relative ranking was not “unfit”, but “very good”. Same is the situation for the selection year 2002 and for the selection year 2005. Thus, only reason attributable to giving him the Overall ranking of “unfit” for the year 2004 is the reason the punishment of censure imposed on him.
11. We have also perused the Reply statement filed by the Respondent No.2, UPSC, who have mentioned at Para 5.2 simply that the Selection Committee did not recommend for the inclusion of his name in the select list of 2004. They have not specifically denied the averment made by the applicant in Para 4.8 of the OA, where it is stated that he has been overlooked for promotion in the Selection Committee Meeting on 2nd/3rd September, 2005 as he had been given penalty on 03.05.2005. On the other hand, Respondent No.3, State Government, have mentioned in their Reply at Para 7 that:
“It is submitted that the Applicant was included in Zone of consideration at sr.No.3 and the ACRs upto 2002-03 were considered. It is also submitted that a penalty of “censure” was given to the Applicant by Director General of Police, M.S. vide order dated 3rd May 2005. As the Selection Committee Meeting was held on 02.09.2005, due to the penalty of “censure” the Applicant was assessed as “unfit” and was not included in the Select List of 2004 in accordance with the provision of regulation 5(4) AND 5(5)”.
This shows that the penalty of “censure” has played a role in rejecting the applicant for 2004.
12. The applicant also refers to Annexure A-11, which is the statement of Respondent No.2, UPSC filed in OA No.131/2006. In that OA, Ranade has commented on non-inclusion of the present applicant for the year 2004, but his inclusion for the year 2005. In that Reply there it was stated on oath by UPSC that
“S/Shri K.R.Shelar (present applicant) and V.N.Jadhav were assessed as “Unfit” for the year 2004 because of currency of penalty and as such their names could not be included in the Select List of 2004 in accordance with the provisions of Regulation 5(4) and 5(5) of the Promotion Regulations”.
It is, thus, clear that the penalty of censure even though given in 2005, remained before the UPSC Selection Committee when they considered for year 2004 and they gave Overall Relative Ranking of “unfit” to the present applicant. It is obvious that for the purpose of promotion of 2005 those UPSC Selection Committee has to see the record up to December, 2004. Therefore, if they ignored the penalty of censure imposed on him during the year 2005, they were justified. However, by the same logic, they could not have taken the penalty of censure into consideration for the year 2004 and could not have given him overall ranking of “unfit”.
13. The learned counsel has also briefly discussed the whole issue of punishment to the applicant. It is stated that a Show Cause notice was issued to the applicant on 16.02.2005 as Annexure A-2 and a penalty of censure was imposed on 30.04.2005 (Annexure A-3) by the DGP, the said date being the last working date of DGP. The order of punishment was actually communicated to the applicant on 03.05.2005. Thereafter, he preferred an appeal against the order of penalty on 16.01.2006 (Annexure A-4). The Appellate Authority by their order dated 19.05.2011 (Annexure A-5) has set aside the said penalty. Hence, at least now, the applicant is entitled to a benefit of promotion for the year 2004.
14. We have gone through the documents submitted by the applicant as well as the respondents and considered their arguments carefully. We agree with the contention of the applicant that the service record of the applicant, which UPSC examined for the selection year of 2002 would be for the year 1997-2001 and had earned him an overall ranking of “very good”. The service record seen by the UPSC for the selection of 2003 would be for the period 1998-2002 and this also earned him a relative ranking of “very good”. The service record to be seen by UPSC for the selection years of 2004 and 2005 would be for the period 1999-2003 and 2000-2004 respectively. Out of this the record for the year ending 2004 has also earned him a relative ranking of “very good”. There does not seem to be any plausible reason why UPSC Selection Committee would rank him as “unfit” for the year 2004 except for the fact of his “censure” issued in May, 2005. In fact, the Reply given by the respondent No.3, Government of Maharashtra clearly mentions that the applicant was ranked unfit because of the punishment of censure imposed on him in May, 2005. Since that is a statement on oath, we have to go by it. In such a situation, giving a relative ranking of “unfit” to the applicant for the year 2004 does not appear to be justified. Looking at ranking of “very good” earned by him for the year 2002, 2003 and 2005, it can be presumed that he would have given an overall ranking of “very good” for the year 2004 also, but for the fact that the UPSC Selection Committee Meeting took into consideration the penalty of censure passed against him in 2005. It is further noteworthy that even the said punishment has been set aside in appeal by Government of Maharashtra vide their order dated 19.05.2011.
15. In view of the above discussion, the OA is allowed to the extent that the applicant should be given a notional promotion into IPS w.e.f. the select list of 2004 i.e. the Allotment year of 1998. He should be placed above all the 16 officers mentioned in Annexure A-1 (select list of 2004) who are also impleaded in the present OA as private respondents Nos.5 to 20. Consequential benefits namely giving selection grade of IPS w.e.f. 29.04.2011 is also allowed notionally. The actual benefit would accrue to the applicant from the date of passing this order. No order as to costs.
(Smt. Chameli Majumdar) (Smt. Leena Mehendale)
Member (J) Member (A)
km*
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