IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 2210 of 2005
For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/
HONOURABLE MR.JUSTICE Z.K.SAIYED Sd/
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? 1 & 2: YES; 3 to 5 NO =========================================================
NATVARLAL MOTILAL CHAVDA - Petitioner(s)
Versus
STATE OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR MUKUL SINHA for Petitioner(s) : 1, MR KAMAL TRIVEDI ADVOCATE GENERAL with MS SANGEETA VISHAN ASSTT GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, =========================================================
CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 18/12/2012 CAV JUDGMENT
(Per : MR.JUSTICE D.H.WAGHELA)
1. The petitioner has invoked Articles 226 and 227 of the Constitution to call into question the order dated 04.02.2005 of the Central Administrative Tribunal (“CAT” for short) in O.A.No.331 of 2004 whereby his application for promotion to IAS cadre with effect from 15.06.2004 with all consequential benefits was, in effect, rejected with the direction to complete the enquiry against him within three months and to pass appropriate order regarding issue of integrity certificate and then take appropriate action in accordance with rules.
2. The petitioner was directly recruited as Mamlatdar in 1977 and then promoted as Deputy Collector in 1983 in Class-I cadre of Gujarat Administrative Service (GAS). Thereafter, he was promoted as Additional Collector in 1995 and transferred and posted as Secretary, Slums Clearance Board on 20.02.2003. On 22.09.2003, the State Government sent a proposal to the Union Public Service Commission (UPSC) and the Department of Personnel and Training, Government of India along with the list of prospective candidates for selection and appointment in IAS cadre and that list included at serial No.6 the name of the petitioner. By notification dated 15.06.2004 of the Government of India in its Department of Personnel and Training (“GOI” for short), 10 members of the State Civil Service of Gujarat were appointed in the Indian Administrative Service against the vacancies of the year 2003, on probation with immediate effect, until further orders, under Rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954 read with Sub-Regulation (1) of Regulation 9 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 and Rule 3 of the Indian Administrative Service (Probation) Rules, 1954. And that list omitted the name of the petitioner, even though by notification of the same date, i.e. 15.06.2004, the select list of 11 State Civil Service officers, including the petitioner, was notified. That select list was approved by the UPSC and prepared by the Selection Committee in its meeting held on 18.11.2003. Such exclusion of the petitioner from appointment in the cadre of IAS was the grievance of the petitioner before CAT, even as a corrigendum dated 16/19.07.2004 was issued to notify that name of the petitioner in the select list was included as provisional/deemed provisional.
2.1 The CAT has, in the impugned order, taken note of the fact that while approving the minutes of the Selection Committee, the State Government had informed the UPSC vide its letter dated 18.12.2003 that the State Government had decided to withdraw the integrity certificate in respect of the petitioner and the State Government had also informed the UPSC vide its letter dated 27.05.2004 that a charge-sheet was issued to the petitioner. Thereafter, the UPSC had communicated on 11.06.2004 to the Central Government that it had approved the recommendations of the Selection Committee, with the modification that inclusion of the name of the petitioner in the select list shall be provisional, subject to clearance of the disciplinary proceeding pending against him and grant of integrity certificate by the State Government. In those facts, the CAT took the view that the latter developments could have been taken into consideration for making selection of the petitioner provisional and it was an administrative error, which was subsequently corrected, that name of the petitioner appeared in the notification dated 15.06.2004 notifying the select list of 2003; and in that milieu, the direction as aforesaid to expeditiously bring to an end the enquiry proceeding against the petitioner was issued by the CAT.
3. It was, inter alia, submitted for the petitioner that once the final select list was notified after correspondence and communications between the State Government and the UPSC, his name could not have been omitted from the list of officers to be appointed in the IAS cadre, particularly in view of the fact that no charge-sheet was issued to the petitioner, as on the date of preparation on 18.11.2003 of the list of suitable officers by the Selection Committee. Relying upon the celebrated judgment of UOI v. K.V.Jankiraman [(1991) 4 SCC 109], it was submitted that promotion could not be withheld merely because some disciplinary/criminal proceedings were pending against the employee, if, at the relevant time, charge-sheet had not been issued to the employee. Relying upon UOI v. Sangram Keshari Nayak [(2007) 6 SCC 704], it was submitted that suitability or otherwise of the candidate concerned must be left to the hands of Departmental Promotion Committee and when the DPC recommends the case for promotion, when no enquiry was pending and no decision was taken by the employer to initiate departmental proceeding, the candidate was entitled to promotion. It was also submitted for the petitioner that integrity certificate cannot be withheld or withdrawn merely because a preliminary enquiry was instituted or even if a charge-sheet were issued, because, as held in Vijay Singh v. State of U.P. [2012 (5) SCC 242], even the disciplinary authority cannot legally impose the punishment of withholding integrity certificate unless such punishment is provided for in the relevant rules. It was, on that basis, submitted that the petitioner was entitled to be appointed in the IAS cadre with effect from 15.06.2004 and having by now crossed the age of superannuation even in the IAS cadre, he was required to be extended all the benefits which he would have obtained had he not been illegally deprived of them, although he had not worked on the higher post. Learned counsel for the petitioner relied upon judgments of the Apex Court in Commissioner, Karnataka Housing Board v. C.Muddaiah [(2007) 7 SCC 689] and State of Kerala v. E.K.Bhaskaran Pillai [(2007) 6 SCC 524] to submit that the petitioner ought to have been considered as promoted with retrospective effect and granted benefits accordingly.
4. As against the above case of the petitioner, learned Advocate General, appearing for respondent No.1, relied upon affidavit-in-reply of Deputy Secretary, General Administration Department of the State Government, which was filed before the CAT and the affidavit-in-reply of the same officer filed herein as Joint Secretary in the same department. It was pointed out therefrom that considering seniority of the petitioner in the cadre of GAS, he came within the zone of consideration for promotion to the higher cadre in the year 2003 and hence his name was included in the proposal sent to the UPSC for consideration, while there was nothing on record of the General Administration Department to draw any adverse conclusion about his integrity and hence the integrity was also certified. Even on the date of the meeting of the Selection Committee, i.e. 18.11.2003, neither the revenue department nor the panchayat department wherein the petitioner had worked, had given any data which would have necessitated withholding of the integrity certificate for the petitioner. However, when minutes of the meeting of the Selection Committee were received by the State Government from the UPSC, it had come to the notice of the Government that certain preliminary inquiries were going on/pending against the petitioner in the Tribal Development Department and on careful perusal of the files and papers from that department, the Government had taken the conscious decision to withhold the integrity certificate and to initiate detailed enquiry into the allegations. Accordingly, an IAS officer was entrusted the task of conducting detailed enquiry into all the allegations on 18.12.2003 and his report was submitted on 26.03.2004 after following the process of detailed preliminary enquiry. While the matter of approval of the UPSC on the minutes of the meeting was going on, the petitioner was served with a charge-sheet on 25.05.2004 and thereafter a letter was sent to the UPSC on 27.05.2004 mentioning that the petitioner was served with a charge-sheet and hence inclusion of his name in the select list should be treated as provisional/deemed provisional in terms of Regulation 5 (5) read with Regulation 9 (1) of the Indian Administrative Service (Appointment By Promotion) Regulations, 1955. Consequently, the UPSC had, vide their letter dated 11.06.2004, communicated to the GOI as well as the State Government that inclusion of name of the petitioner in the select list would be provisional, subject to clearance of disciplinary proceedings pending against him and grant of integrity certificate by the State Government.
4.1 According to the affidavit dated 30.09.2004 of Deputy Secretary Shri H.V.Brahmbhatt, the petitioner was earlier served with a charge-sheet for imposition of major penalty on 04.06.2002, but he was subsequently exonerated by order dated 30.04.2003. He also stated on oath before the CAT that certain preliminary inquiries were still pending against the petitioner and they related to different posts which he had held in the past.
4.2 As stated in the affidavit-in-reply filed before CAT by the Under Secretary in the Department of Personnel and Training, Government of India, the UPSC had, while forwarding approved list to the Department, informed that name of the petitioner figuring at serial No.6 of the select list may be treated as provisional, subject to vigilance clearance by the State Government.
4.3 In the above facts, it was submitted for the State Government that the charge-sheet dated 25.05.2004 having already been issued prior to the select list dated 11.6.2004 and the disciplinary proceeding having thereafter culminated into order dated 21.5.2005 imposing punishment of reduction of pay of the petitioner by two stages, he was not entitled to any relief. It was also submitted that the promotion claimed by the petitioner as a matter of right being not within the cadre and being governed by specific rules in that behalf, the legal proposition laid down in K.V.Jankiraman (supra) did not apply.
5. During the course of elaborate arguments, learned Advocate General was candid enough to bring to the notice of the Court the actual notings on the file in respect of the case of the petitioner and place on record letter dated 11.06.2004 from UPSC to the Secretary to Government of India, Department of Personnel and Training, which has to be reproduced as under:
“Subject: IAS-SCM for promotion of SCS officers to IAS Cadre of Gujarat during the year 2003.
Sir, I am directed to refer to your letter No.14015/4/2003- AIS(I) dated 20.01.2004 and Government of Gujarat letter No.AIS-16-2003/838-G dated 18.12.2003 on the subject mentioned above and to say that the Central Government, in terms of Rule 4 (2)(b) of the IAS (Recruitment) Rules, 1954 read with Regulation 5 (1) of the IAS (Appointment by Promotion) Regulations, 1955 had determined the number of posts for recruitment by promotion to the IAS Cadre of Gujarat during 2002 as 11 (eleven). Accordingly, the Selection Committee at its meeting held on 18.11.2003 prepared a Select List consisting 11 (eleven) names.
2. As required under Regulation 6 and 6A of the IAS (Appointment by Promotion) Regulations, 1955, the Government of Gujarat and the Central Government have sent their observations on the recommendations of the Selection Committee. The State Government have stated in their letter dated 18.12.2003 that due to certain allegations against Shri N.M.Chavda (SC) included in the Select List at S.No.6, they have decided to withdraw the integrity certificate in his respect.
3. Government of India, Min. of Personnel, Public Grievances & Pensions, Dept. of Personnel & Training vide their letter dated 20.01.2004 have accepted the recommendations of the Selection Committee and have requested the Commission to take further action keeping in view the decision of the State Government to withdraw the integrity certificate in respect of Shri N.M.Chavda.
4. The State Government have subsequently intimated, vide their letter dated 27.05.2004 that a charge sheet dated 25.05.2004 has been issued to Shri N M Chavda and a Departmental Inquiry has been initiated against the officer. The State Government have, therefore, requested the Commission to treat the inclusion of Shri N M Chavda (SC) in the Select List as provisional/deemed provisional.
5. The recommendations of the Selection Committee, the view of the State Government received under Regulation 6 and observations of the Central Government received under Regulation 6A were placed before the Commission for their consideration..
6. The Union Public Service Commission have approved the recommendations of the Selection Committee, which met on 18.11.2003 to prepare the Select List for promotion to the IAS cadre of Gujarat, with the modifications that the inclusion of the name of Shri N.M.Chavda (SC) at Sl.No.6 in the Select List shall be provisional subject to clearance of disciplinary proceedings pending against him and grant of integrity certificate by the State Government. “
5.1 It is also revealed from perusal of the record that it was in terms admitted on oath in paragraph 13 in the reply affidavit filed before CAT on behalf of respondent No.2 that the State Government had informed the UPSC that charge-sheet in a disciplinary case was issued to the petitioner and as such his inclusion in the select list may be made provisional; and accordingly the UPSC, while forwarding the approved select list to the department, informed that the name of the applicant figuring at serial No.6 in the select list may be treated as provisional subject to vigilance clearance by the State Government. The genesis of issuance of charge-sheet to the petitioner admittedly laid in an undated note on the file of the General Administration Department (GAD) by the Hon’ble Chief Minister; and that short note only mentioned that the enquiry against the petitioner, which is pending for decision in the Tribal Development Department, was required to be placed within a fortnight before the Government by GAD and, as for the petitioner, at that stage, consent/approval of the State Government may not be conveyed to the UPSC. The Principal Secretary and some other officers appeared to have put their signatures below the above note with the date of 02.11.2003 and 02.12.2003. On the basis of that note, the Deputy Secretary(Services), GAD, had prepared a submission and signed it on 06.12.2003 seeking directions in the following terms:
“(3) Having regard to the number of complaints and nature of allegations, the integrity certificate in respect of Shri N.M.Chavda may be withheld under Regulation 5(5) of the IAS(Appointment by Promotion) Regulations, 1955. The UPSC and the Government of India may be informed accordingly. Because of withholding of the integrity certificate, Shri N.M.Chavda’s inclusion in the select list will become provisional and as a consequence, he will not be promoted to the IAS till the State Government certifies his integrity. As regards the other recommendations of the Selection Committee, the State Government has already accepted the same.
(4) Since the integrity certificate in respect of Shri N.M.Chavda is proposed to be withheld, it may be necessary to expedite and co-ordinate the several preliminary enquiries going on against Shri N.M.Chavda. As mentioned above, these preliminary matters have been entrusted by the Tribal Development Department to different officers. If approved, these preliminary enquiries may be given to Shri R.P.Gupta, IAS, Mananging Director, Gujarat Agro Industries Ltd., Ahmedabad. He may be asked to give his report within a month.
(5) “A” and “B” above are submitted for approval of the Government. “ It is not clear whether the above submission was approved for suitable action, but the same officer putting up the submission wrote to the UPSC, in the letter dated 18.12.2003, that “it has been brought to the notice of the Government that there are quite a few serious allegations against Shri N.M.Chavda regarding malpractices, corruption, abuse of power, rude behaviour, misuse of official vehicle etc. Preliminary enquiries are going on against Shri N.M.Chavda on the points of allegations mentioned above. Having regard to the number of complaints and nature of allegations, the State Government has decided to withdraw the integrity certificate in respect of Shri N.M.Chavda under Regulation 5(5) of the IAS (Appointment by Promotion) Regulations, 1955. As such, inclusion of Shri N.M.Chavda in the proposed select list should be treated as “deemed provisional” and he should not be recommended for promotion to the IAS till his integrity is certified by the State Government ”
The same officer also wrote on the same day a letter to Shri R.P.Singh, IAS that: “I am directed to refer to the subject mentioned above and to forward herewith copies of applications/complaints containing allegations against Shri N.M.Chavda, Ex-Project Administrator, Rajpipla. You may kindly look into the allegations and give a factual report on each of the points of allegations at the earliest. “
5.2 It was quite clear from the above note and submissions that the minutes of the Selection Committee were proposed to be not approved by the State Government as far as inclusion of the petitioner in the select list was concerned; it was the Deputy Secretary, General Administration Department who devised the manner and method of making inclusion of the name of the petitioner provisional, using/abusing the provisions of Regulation 5(5), and the preliminary enquiry and the departmental enquiry had to follow to ultimately inform the UPSC that a charge-sheet was also issued to the petitioner. The point required to be noted was that while the Chief Secretary and the Head of General Administration Department had, on behalf of the State Government, certified the integrity of the petitioner on 22.9.2003 and selection on 18.11.2003 of the petitioner was based thereon, the Deputy Secretary, General Administration Department had translated the reservation of the State Government about selection of the petitioner into withholding of the integrity certificate and it being not contemplated or permissible, into withdrawing the integrity certificate with specific reference to Regulation 5(5) in the letter dated 18.12.2003.
5.3 The above course of action initiated by the Deputy Secretary, General Administration Department Shri Harsh V.Brahmbhatt substantiated several specific allegations made by the petitioner insofar as the same officer had filed an affidavit-in-reply dated 08.11.2000 in an earlier petition (SCA No.11289 of 2000) filed by the petitioner against his transfer; and in that affidavit-in-reply, the same officer had made a number of allegations and disparaging remarks against the petitioner. A copy of that affidavit-in-reply was also officially submitted before CAT in O.A.No.331 of 2004 alongwith the affidavit-in-reply on behalf of the State Government in the O.A. itself. The same officer had gone to the extent of submitting incorrect and incomplete version of the Regulations before CAT and in that copy of the Regulations, the pages containing Explanations to Regulation 5 were excluded. The same officer also filed his affidavit-in-reply in the present proceedings and it was the same officer who also passed, as the disciplinary officer, the final order dated 21.5.2005 imposing punishment of stoppage of two increments against the petitioner after disagreement with some of the conclusions drawn by the Enquiry Officer in his report. Thus, in short, prima facie, one officer in the General Administration Department was bent upon ensuring that the petitioner did not enter the Cadre of IAS, although all the annual confidential reports from the year 1995 to 2005 in respect of the petitioner were recording overall assessment of the petitioner as “outstanding” or “very good”, except in the year 1999-2000 wherein his overall assessment was shown to be “a good officer”. The merits and legality or otherwise of the punishment imposed upon the petitioner by the same officer after the departmental enquiry is not the subject-matter in the present petition and it being the subject- matter in another petition, it has to be clarified that this Court refrains from touching on merits of the order of punishment imposed upon the petitioner. The fact, however, remains that the petitioner had been effectively and successfully prevented from being promoted even after being selected.
6. After an initial controversy about the position of rules and regulations applicable in the facts of the present case, there was a consensus about application of the following relevant regulations. In pursuance of sub-rule (1) of Rule 8 of the Indian Administrative Service (Recruitment) Rules, 1954, the Central Government, in consultation with the State Governments and the UPSC, made the Indian Administrative Service (Appointment By Promotion) Regulations, 1955 (“Regulations” for short), of which the relevant regulations read as under:
“3. CONSTITUTION OF THE COMMITTEE TO MAKE SELECTION: -
3 (1) There shall be constituted for a State Cadre or a Joint Cadre specified in column 2 of 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 other members specified in the corresponding entry of column 3 of the said schedule;
Provided that ... ... ...
3(2) ... ... ...
3(3) ... ... ...
5. PREPARATION OF A LIST OF SUITABLE OFFICERS :-
5 (1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the Service. The number of members of the State Civil Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned, 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, 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 ... ... ...
5(2) 5(2A) 5(3) 5(3A)
5(4) The Selection Committee shall classify the eligible officers as 'Outstanding', 'Very Good', 'Good' and 'Unfit' as the case may be on an overall relative assessment of their service records.
5 (5) The List shall be prepared by including the required number of names first from amongst the officers finally classified as 'Outstanding' then from amongst those similarly classified as 'Very Good' and thereafter from amongst those similarly classified as 'Good' and the order of names inter-se within each category shall be in the order of their seniority in the State Civil 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 respect of such an officer or any proceedings, departmental or criminal are pending against him or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government.
Provided further that while preparing year-wise select lists for more than one year pursuant to the 2nd proviso to sub-regulation (1), the officer included provisionally in any of the Select List so prepared, shall be considered for inclusion 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 size 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-sheet has actually been issued to the officer or filed in a Court as the case may be.
EXPLANATION II: The adverse thing which came to the notice of the State Government rendering him unsuitable for appointment to the service shall be treated as having come to the notice of the State Government only if the details of the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential.
6. CONSULTATION WITH THE COMMISSION: The list
prepared in accordance with regulation 5 shall then be forwarded to the Commission by the State Government along with:
(i) the records of all members of the State Civil Service included in the list;
(ii) the records of all members of the State Civil Service who are proposed to be superseded by the recommendations made in the list;
(iii) Deleted;
(iv) The observations of the State Government on the recommendations of the Committee.
6 A The State Government shall also forward a copy of the list referred to in regulation to the Central Government and the Central Government shall send their observations on the recommendations of the Committee to the Commission.
7. SELECT LIST.
7(1) The Commission shall consider the list prepared by the
Committee alongwith:-
(a) the documents received from the State Government under regulation 6;
(b) the observations of the Central Government and unless it considers any change necessary, approve the list.
7(2) If the Commission considers it necessary to make any changes in the list received from the State Government, the Commission shall inform the State Government and the Central Government of the changes proposed and after taking into account the comments, if any, of the State Government and the Central Government, may approve the list finally with such modifications, if any, as may, in its opinion, be just and proper.
7(3) The list as finally approved by the Commission shall form the Select List of the members of the State Civil Service.
Provided that if an officer whose name is included in the Select List is, after such inclusion, issued with a charge sheet or a charge sheet is filed against him in a Court of Law, his name in the Select List shall be deemed to be provisional.
7(4) The Select List shall remain in force till the 31st 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 days 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:
Provided also that where the select list is prepared for more than one year pursuant to the second proviso to sub-regulation (1) of regulation 5, the select lists shall remain in force till the 31st day of December of the year in which the meeting was held to prepare such lists or upto sixty days from the date of approval of the select lists by the Commission under this regulation, whichever is later.
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 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.
Provided further that in the event of any new service or services being formed by enlarging the existing State Civil Service or otherwise being approved by the Central Government as the State Civil Service under clause (j) of sub-regulation (1) of regulation 2, the Select List in force at the time of such approval shall continue to be in force until a new list prepared under regulation 5 in respect of the members of the new State Civil Service, is approved under sub-regulation (1) or as the case may be, finally approved under sub-regulation (2).
9. APPOINTMENTS TO THE SERVICE FROM THE SELECT LIST:
9(1) Appointment of a member of the State Civil Service, who has expressed his willingness to be appointed to the service, shall be made by the Central Government in the order in which the names of the members of the State Civil Service appear in the Select List for the time being in force during the period when the Select List remains in force:
Provided that the appointment of members of the State Civil Service shall be made in accordance with the agreement arrived at under clause (b) of sub-rule (3) of rule 8 of the Recruitment Rules in the order in which the names of the members of the State Civil Service occur in the relevant parts of the Select List for the time being in force.
Provided further that the appointment of an officer, whose name has been included or deemed to be included in the Select List provisionally, under proviso to sub-regulation (5) of regulation 5 or under the proviso to sub-regulation (3) of regulation 7, as the case may be, shall be made within sixty days after the name is made unconditional by the Commission in terms of the first proviso to sub-regulation (4) of regulation 7:
10. POWER OF THE CENTRAL GOVERNMENT NOT TO APPOINT IN CERTAIN CASES:
Notwithstanding anything contained in these Regulations, the Central Government may not appoint any person whose name appears in the Select List, if it is of the opinion that it is necessary or expedient so to do in the public interest.
Provided that no such decision shall be taken by the Central Government without consulting the Union Public Service Commission.
Schedule (See Regulation 3)
a) Chief Secretary of the State Government;
b) The Senior-most officer of the Cadre serving in the State, other than the Chief Secretary;
GOVERNMENT OF INDIA'S DECISIONS Government of India's Decisions under Regulation 3:
1.1 On the basis of the recommendations of the Committee on the Prevention of Corruption, it has been decided that the following certificate should be recorded by the Chief Secretary to the State Government who is the sponsoring authority in respect of all eligible officers whose cases are placed before the Selection Committee for consideration.
“The State Government certify the integrity of Shri....... with reference to the entries in his annual confidential reports”.
1.2 The Selection Committee should also consider the question of suitability of the officers for selection with reference to their integrity and should specifically record in their proceedings that they were satisfied from the remarks in the confidential reports of the officers, selected by them for inclusion in the Select List, that there was nothing against their integrity.
[G.I. M.H.A. Letter No.14/23/65-AIS(III) dated 8/6/1965, readwith MHA letter No. 14/23/65-AIS(III) dated 28th July, 1965.
4. According to the existing practice, members of the State Civil/Police/Forest Service whose suitability for promotion to the IAS/IPS/IFS is considered by the Selection Committee and against whom disciplinary proceedings are pending are included in the Select List subject to clearance of enquiries pending against them. The State Governments have been requested that a list of officers against whom disciplinary proceedings are pending and a list of those in respect of whom it has been finally decided to institute disciplinary proceedings, may invariably be given to the Chairman of the Selection committee as in the proforma enclosed at the time of the meeting of the Committee.
[ DP&AR letter No.14015/28/81-AIS(I) dated 6/2/82]
5. After the amendments dated 31.12.1997, the State Governments are to forward signed declaration of marital status and consent for termination of lien in the State Service on eventual substantive appointment in the IAS from the State Civil Service officers included in the consideration zone to the Central Government separately, even while sending proposals for convening the Selection Committee to the Commission. Any adverse development in respect of the officers included in the consideration zone which is likely to render him unsuitable for appointment to the Service for the time-being (e.g.) withdrawal of integrity certificate by the State Government/ issue of charge sheet/ filing of criminal case against the officer etc. should be immediately brought to the notice of the Central Government and Commission by the State Government concerned by FAX/ Speed Post and acknowledgment secured from the addressee.
[ DOP&T Lr. No.F.14015/1/98-AIS(I) dated 6.7.1998]
7. The intricate and exhaustive scheme of the relevant regulations reproduced hereinabove will help in properly applying the statutory provisions in the facts of the present case. It is clear from perusal of the regulations that appointment by promotion from State Civil Service to Indian Administrative Service is by selection by a Committee consisting of the Chairman of the UPSC, the Chief Secretary of the State Government, the senior-most officer of the IAS cadre other than the Chief Secretary, the Head of the General Administration/Personnel/Revenue Department of the State Government not below the rank of Secretary to the State Government and two nominees of GOI not below the rank of Joint Secretary. The date and venue of the meeting of the Committee to make the selection is to be determined by the UPSC. According to GOI's decision under Regulation 3, the Chief Secretary to the State Government, who is the sponsoring authority in respect of all eligible officers whose cases are placed before the Selection Committee for consideration, is required to record an integrity certificate, with reference to the entries in annual confidential reports of the officer concerned. Even after such certificate being recorded, the Selection Committee is required to consider the question of suitability of the officers for selection with reference to their integrity and specifically record in their proceedings that they were satisfied from the remarks in the confidential reports of the officers, selected by them for inclusion in the select list, that there was nothing against their integrity. Thereafter, a list of such members of the State Civil Service as are held by the Selection Committee to be suitable for promotion has to be prepared. The Selection Committee has to classify the eligible officers as “outstanding”, “very good”, “good” and “unfit”, as the case may be, on an overall relative assessment of their service records, maintaining inter se seniority of the officers in each class. The name of any officer included in such list has to be treated as provisional, if the State Government withholds the integrity certificate in respect of such officer, or any proceedings, departmental or criminal, are pending against him, or anything adverse, which renders him unsuitable for appointment to the service, has come to the notice of the State Government. That provision for making or treating any name as provisional is subject to Explanations-I and II of Regulation 5 (5), according to which the proceedings can be treated as pending only if a charge-sheet has actually been issued to the officer or filed in a court; and the adverse thing which came to the notice of the State Government rendering him unsuitable can be treated to have come to the notice of the State Government only if the details of the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential. After the list is so prepared, it has to be forwarded to the UPSC by the State Government alongwith the records of all members of the State Civil Service included in the list, the records of all members of the State Civil Service who are proposed to be superseded by virtue of the list and the observations of the State Government on the recommendations of the Committee. A copy of the select list is also required to be forwarded to the Central Government and the Central Government is required to send their observations on the recommendations of the Committee to the UPSC. Thereafter, under Regulation 7, the UPSC has to consider the select list alongwith the documents received from the State Government and the observations of the Central Government and unless it considers any changes necessary, approve the list. If the Commission considers it necessary to make any changes in the list, it has to inform the State Government of the changes proposed and after taking into account the comments, if any, of the State Government and the Central Government, the UPSC may approve the list finally with such modifications, if any, as may, in its opinion, be just and proper. The list so finally approved by the Commission would be the “Select List” of the members of the State Civil Service. If an officer whose name is included in the select list is, after such inclusion, issued a charge-sheet or a charge- sheet is filed against him in a court of law, his name in the select list shall be deemed to be provisional. Thereafter, under Regulation 9 (1), appointment of a member of the State Civil Service has to be made by the Central Government in the order in which the names of the members of the State Civil Service appeared in the select list. In case of an officer whose name has been included or deemed to be included in the select list provisionally, under the proviso to sub-regulation (5) of Regulation 5 or under the proviso to sub-regulation (3) of Regulation 7, as the case may be, his appointment has to be made within 60 days after the name is made unconditional by the Commission in terms of the first proviso to sub-regulation (4) of Regulation 7. Thus, there are two stages at which inclusion of name in the list of the recommended officers could be made provisional; the first stage is before the list is forwarded to the UPSC by the State Government, subject to fulfillment of the conditions contained in the Explanations to Regulation 5 (5). And the second stage for making a name provisional under Regulation 7 (3) is when the Commission finally approves the list after consideration of the list prepared by the Selection Committee, the documents received from the State Government and the observations of the Central Government. Such latter provisionalisation of the name included in the select list is subject to the condition that the officer concerned is issued with the charge-sheet or a charge- sheet is filed against him in a court after his name being included in the select list finally approved by the UPSC.
7.1 Even after inclusion of an officer in the final select list, the Central Government may not appoint an officer if it is of the opinion that it is necessary or expedient so to do in the public interest. However, such plenary powers conferred upon the Central Government by Regulation 10, with an opening non-obstante clause, are subject to the proviso that no such decision shall be taken by the Central Government without consulting the UPSC. It is clear from the language in which Regulation 10 is couched that the special power of the Central Government to deny appointment to any person, whose name appears in the select list is conditional and could be exercised only if an opinion is formed that it is necessary or expedient so to do in public interest and even after forming such opinion, the final decision could be taken only after consulting the UPSC.
8. In view of the above scheme of the statutory provisions, the following facts and events in chronological order would have the decisive relevance:
Date Events 18.11.2003 Meeting of the Selection Committee wherein selection list consisting of eleven names, including the name of the petitioner, was prepared.
18.12.2003 The State Government stated that they have decided to “withdraw” the integrity certificate in respect of the petitioner.
20.01.2004 GOI accepted the recommendations of the Selection Committee with the request to the UPSC to take further action, keeping in view the decision of the State Government to withdraw the integrity certificate in respect of the petitioner.
27.05.2004 The State Government informed the UPSC that a charge-sheet dated 25.05.2004 has been issued to the petitioner and a departmental enquiry has been initiated; and requested the UPSC to treat inclusion of his name in the select list as provisional/ deemed provisional.
11.06.2004 The UPSC informed GOI that it has approved the recommendations of the Selection Committee with the modification that inclusion of the petitioner in the select list shall be provisional, subject to clearance of disciplinary proceedings pending against him and grant of integrity certificate by the State Government.
15.06.2004 Notification of GOI in terms of Regulation 7(3) declaring approval by the UPSC of the select list prepared by the Selection Committee, which included the name of the petitioner at serial No.6 – without stating that inclusion of his name was provisional.
15.06.2004 Notification of GOI appointing 10 other officers, excluding the petitioner, in the Administrative Service on probation with immediate effect.
16/19.7.2004 Corrigendum issued by GOI to the above notification dated 15.6.2004 to add the paragraph to the notification dated 15.6.2004 that: “Name of Shri N M Chavda (SC) at serial No.6 in the select list shall be provisional, subject to the disciplinary proceedings pending against him and grant of integrity certificate by the State Government.”
It may be pertinent to note here that both the notifications dated 15.6.2004 and the corrigendum dated 16/19.7.2004 are signed by the same Under Secretary to the Government of India.
9. As seen above, admittedly, the integrated certificate in respect of the petitioner was not “withheld”, but it was sought to be “withdrawn” after one month of the meeting of the Selection Committee on 18.11.2003, and the charge-sheet having been issued to the petitioner as late as on 25.5.2004, inclusion of the petitioner in the list prepared by the Committee could not legally be treated as provisional under the proviso to Regulation 5 (5). Thus, the intimation by the State Government for withdrawing the integrity certificate could not legally result, at the first stage, into treatment of inclusion of the petitioner’s name in the list as provisional. The second stage for deeming inclusion of the petitioner’s name to be provisional came under Regulation 7 (3) only after 11.6.2004 when the UPSC approved recommendation of the Selection Committee with the modification that inclusion of the petitioner in the select list shall be provisional. Assuming that all the formalities and procedure prescribed under Regulations 6, 6-A and 7 (2) were duly complied with by the UPSC, the name of the petitioner in the select list could be deemed to be provisional only if, after inclusion of his name in the select list, a charge-sheet were issued. That being not the case and charge-sheet having already been issued on 25.5.2004 prior to approval and finalisation of the select list on 11.6.2004, the provisions of Regulation 7 (3) could not be pressed into service to deny to the petitioner appointment on the promotional post under the mandatory provisions of Regulation 9(1). It is not the case of the respondent that the Central Government had exercised its powers under Regulation 10 and the mandatory provisions for consulting the UPSC were complied with. In that view of the matter, it would clearly appear that the State Government had made an imperfect and preemptive attempt at provisionalising the name of the petitioner, after his selection by the Selection Committee consisting, inter alia, of three of very senior civil servants, including the Chief Secretary, and examination by the Committee in particular of the aspect of integrity of the petitioner as required by GOI’s decision under Regulation 3. The notifications dated 15.6.2004 notifying the select list and making appointments and the subsequent corrigendum dated 16/19.7.2004 also strengthen the inference that initial withdrawal of the integrity certificate, issuance of charge-sheet dated 25.5.2004 and intimation thereof on 27.5.2004 were aimed at excluding the petitioner from the list of appointees, even as it is not established that the charges levelled against the petitioner had a bearing on the suitability of the petitioner for promotion and the Central Government was satisfied that investigation into the charges was essential. In fact, the State Government has sought to prop up its objections to promotion of the petitioner by confusing “withholding” of the integrity certificate with its “withdrawal”, on the basis of something adverse against him coming to notice of the Government after recommendation of his name by the Selection committee; and compliance with Explanation-II to proviso to Regulation 5 (5) is not even pleaded. In any case, the notification dated 15.6.2004 under Regulation 7 (3) notifying that the petitioner was included in the final select list approved by the UPSC could not have legally been made provisional under Regulation 7(3) as discussed hereabove and the conditions contained in Regulation 7(4) could not legally be imposed as was sought to be done by the corrigendum dated 16/19.7.2004.Therefore, the conclusion arrived at in the impugned order of CAT that “.....the latter developments could have been taken into consideration for making his name provisional and there was an administrative error in including the name of the applicant in the select list without showing the word provisional” was superficial, erroneous and illegal and hence required to be set aside.
10. However, even as the impugned decision of CAT was delivered on 04.02.2005 and the departmental enquiry against the petitioner was concluded, admittedly, some of the charges against the petitioner were held to have been proved and he is already visited with punishment of stoppage of two increments, he has also crossed by now the age of superannuation on 10.6.2010 and has not served on the promotional post for a single day. Therefore, what relief could be granted to the petitioner became the main issue. It was contended that, had the CAT decided the legal issues in favour of the petitioner and ordered his appointment on the promotional post, he could have served on the higher post on higher emoluments and his date of superannuation would have been postponed by two years. As against that, it was also submitted that some of the charges against the petitioner having been proved, he could not be ordered to be granted deemed promotion and consequential benefits. There is no dispute about the fact that the petitioner has also challenged findings of the departmental enquiry held against him and the order of punishment based thereon by approaching this Court in a separate proceeding and SCA No.14975 of 2005 in that regard is pending and awaiting hearing and disposal in due course.
10.1 Even as the petitioner has invoked both Articles 226 and 227 of the Constitution for the reliefs claimed by him and exhausted the remedy of approaching the CAT, while considering the facts discussed hereinabove and the subsequent developments about which there is no controversy, it would be necessary to keep in view the pertinent observations, as under, of the three-Judge bench of the Apex Court in Union of India v. K.V.Jankiraman and Others (supra); although the judgment may not be directly applicable due to the distinct and definite statutory provisions applicable in the facts of the present case:
“29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion..”
11. In view of the above dicta, it is clear that the petitioner could not straightaway be rewarded with a deemed date of promotion with retrospective effect and granted all the benefits accordingly, while he does not stand wholly exonerated of the charges but, instead, stands punished for the misconduct at the enquiry pending at the time of promotion, otherwise due. At the same time, as held in Commissioner, Karnataka Housing Board (supra) and State of Kerala v. E.K.Bhaskaran Pillai (supra), a court of law must take into account all the facts in their entirety and it cannot be contended as an absolute proposition of law that no direction for payment of consequential benefits could be granted by the court. When the administration has wrongly denied his due to an employee, he should be given full benefits subject to any supervening factors. In the facts of the present case, it is yet to be examined and determined in the petitioner’s petition pending as SCA No.14975 of 2005, whether the disciplinary proceeding held against the petitioner were bona fide, the punishment imposed upon him was justified and whether the misconduct, if any, standing proved against the petitioner which may be upheld by the court were serious enough to deny him promotion, otherwise due. Therefore, the moulding of relief would heavily depend upon the outcome of the other petition pending as aforesaid and its outcome cannot be and should not be influenced by the relevant facts taken into consideration for deciding the different issues involved herein. The fact, however, also remains that as on the date the promotion was due for the petitioner, the objection raised by the State Government by withdrawing the integrity certificate and provisionalising the name of the petitioner in the select list was illegal and unsustainable in law, and thereupon the denial of promotion as on the relevant date was unfair, arbitrary and illegal.
12. In the above peculiar facts, the petition is partly allowed and the impugned decision of CAT is set aside to the extent it held that the inclusion of petitioner’s name in the select list was provisional in view of later developments. Accordingly, the respondent State of Gujarat is directed to pay to the petitioner compensatory cost of Rs.1,00,000/- with liberty to the petitioner to claim such further benefits and reliefs as may be found to be just on the basis of result of his petition pending as SCA No.14975 of 2005. The petitioner may claim such benefits as consequential relief by moving an amendment in the aforesaid pending petition or file a fresh petition for the purpose, as may be advised. Rule is made absolute accordingly. Interim relief granted earlier is vacated.
(KMG Thilake) Sd/-
( D.H.Waghela, J.) Sd/ ( Z.K.Saiyed, J.) Upon pronouncement of the judgment today, learned counsel Ms.Sangeeta Vishen, appearing for the respondent State, prayed for staying operation of the judgment for a period of six weeks. As we do not find any justification for granting such relief, that request is rejected.
(KMG Thilake) Sd/-
( D.H.Waghela, J.) Sd/ ( Z.K.Saiyed, J.)