IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 15798 of 2009 Date of Decision: February 1, 2010 Parveen Kumar …Petitioner Versus Union Public Service Commission and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. A.R. Takkar, Advocate, for the petitioner. Mr. N.S. Virk, Advocate, for respondent No. 1. Mr. Suvir Sehgal, Additional Advocate General, Punjab, for respondent No. 2. Mr. O.S. Batalvi, Advocate, for respondent No. 3. Mr. Gurminder Singh, Advocate, for respondent Nos. 5 to 10. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges combined eligibility list of the State Civil Services Officers, dated 7.8.2008 (P-4), notification dated 13.8.2009, issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, (Department of Personnel & Training), making appointments of the members of the State Civil Service of Punjab to the Indian Administrative Service (IAS) for the Select List years 2007 and 2008(P-14) as also order dated 4.9.2009 (P-13), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’). A C.W.P. No. 15798 of 2009 further prayer has been made for directing the respondent State of Punjab to include the name of the petitioner in the list of eligible candidates for filling up the vacancies in the Indian Administrative Service arising in the year 2006 as also to direct the Union Public Service Commission (for brevity, ‘UPSC’) to consider his name for promotion to IAS. 2. Brief facts of the case are that the date of birth of the petitioner is 17.02.1952. On 23.04.1986, he was inducted in the Punjab Civil Service (Executive Branch). He attained the age of 55 years on 17.02.2007 and his date of superannuation is 28.02.2010. In the Gradation and Distribution list of PCS (Executive Branch) as it stood on January 1, 2008, the name of the petitioner figures at Sr. No. 12 (P-1). 3. It is pertinent to mention that selection promotion from the Punjab Civil Service (Executive Branch) to the IAS is governed and regulated by the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (for brevity, ‘the Regulations’) [P-2]. Regulation 3 provides for constitution of the Committee to make selection; Regulation 5 deals with preparation of a list of suitable officers; Regulation 6 talks about consultation with the Commission, whereas Regulation 7 deals with the Select List. These provisions would be discussed later in detail in the subsequent paras of this order. 4. The petitioner has claimed that the officers upto Sr. No. 7 of the Gradation List (P-1) have already been considered for being appointed to IAS against the vacancies which were available prior to 2006. In the year 2006 i.e. with effect from 1.1.2006 to 31.12.2006, 4 vacancies were available for promotion to the IAS, as is evident from the letter dated 3.3.2008, whereby information has been supplied under the Right to Information Act, 2005 (P-3). Against the aforementioned vacancies the officers of the PCS (Executive Branch) mentioned at Sr. No. 8 onwards, were to be considered. During the year 2007, five vacancies were available. It has been submitted that one consumed vacancy, which has 2 C.W.P. No. 15798 of 2009 been shown for the year 2007, has to be considered/shown for the year 2006, inasmuch as, one Shri Joginder Lal Jain, PCS, who stood retired on 31.3.2001 and had been included in the Select List of 1996-97 by the Review Selection Committee in its meeting held on 25.2.2008 on the basis of his rank in the revised seniority, was not taken into consideration. In this regard, the petitioner has placed on record copy of letter dated 7.8.2008 (P-4). In the aforementioned letter the Government of India has intimated that a retiree is not given appointment to the IAS even if his name figures in the select list and such a vacancy is carried forward to the current year for which determination of vacancies is to take place. It has, thus, been claimed that the aforementioned consumed vacancy is also required to be filled up along with other 4 vacancies of the year 2006. In other words, according to the petitioner during the year 2006, five vacancies were available instead of four. 5. As per the provisions of the Regulations, the Committee has to meet every year and prepare a list of such members of the State Civil Service as are considered by the Government to be suitable for promotion to the IAS. However, in the State of Punjab, in the year 2006 neither the select list was prepared nor the meeting of the Committee was held, when the petitioner became eligible to be considered for promotion to the IAS. On 7.8.2008 a Combined Eligibility List was prepared for filling up 4 posts of the IAS for the year 2006 and 5 posts for the year 2007. It has been asserted that one consumed vacancy has been wrongly shown for the year 2007 instead of 2006. According to the petitioner the aforementioned vacancies are to be filled up by promotion from amongst members of the State Civil Service during the year 2007 and 2008 respectively (P-4). 6. The name of the petitioner was not included in the aforementioned Combined Eligibility List, therefore, he approached the Tribunal by filing Original Application No. 118-PB of 2009. Another officer, namely, Shri Harmesh Singh Pabla also filed OA No. 134-PB of 2009. The 3 C.W.P. No. 15798 of 2009 Tribunal has dismissed the aforementioned OAs, vide impugned order dated 4.9.2009 (P-13), by holding as under:- “18. As per provisions of Regulation 5(3) of the Promotion Regulation, the Selection Committee shall not consider the cases of members of the State Civil Service Officers who have attained the age of 54 years on the first day of January of the year for which the Select List is prepared. Respondents are right in doing so as the Select List has to be prepared after taking into consideration all the vacancies falling vacant upto 31 December of the previous year. So, the first day of January of the year has rightly been taken as a cut-off date. 19. In the instant case, the Select Lists upto the year 2006 have been prepared and acted upon the an officer should not have attained the age of 54 years as on 1.1.2007 and 1.1.2008 respectively for becoming eligible for consideration by the Selection Committee for the years 2007 and 2008. Since the date of birth of the applicant Shri Parveen Kumar is 17.2.1952, he had attained the age of more than 54 years on 1st January, 2007. As such, the contention of the applicant that for the Select List of the year 2007 the Selection Committee has to consider the cases of all the eligible members of the State Civil Service, including this applicant, is wrong, thus, not sustainable……… 20. Further, the contention of the applicants that there should have been 5 vacancies calculated for the Select List for the year 2006 is admitted by the respondents and we find that action has been taken to prepare the Select List for the year 2007 on this premise. This objection raised by the applicants, therefore, no longer subsists. Insofar as the contention of the applicants regarding preparation of Combined Eligibility List for 4 C.W.P. No. 15798 of 2009 the 10 vacancies i.e. 5 each for the years 2007 and 2008 is concerned, as pleased and argued, we find the Select Lists have been prepared yearwise by the Selection Committee and only those officers have been considered who were found eligible & qualified to be appointed to the IAS in the relevant years, therefore, no fault can be found with the recommendations made by it with regard to the Select Lists for the said years. Such a plea appears to be the result of some misconstrued thinking and misunderstanding in the minds of the applicants and is not accepted. 21. This Court further finds that due observance of the rules, orders of the Courts and law has been made by the Selection Committee in making recommendations as per the Select List of 2007 and 2008 and no procedural or legal flaw is found by this Court in the same. Consequently, both these cases are found to be bereft of any merit.” 7. It is also relevant to mention here that during the pendency of the OAs, the respondents finalized the selection process and on 13.8.2009 a notification was issued making appointments to the IAS. A perusal of the notification shows that five officers have been appointed against the Select List for the year 2007 and four appointments have been made against the Select List for the year 2008. However, these appointments have been made subject to the outcome of O.A. No. 118/PB/2009, which was filed by the petitioner (P-14). 8. Mr. A.R. Takkar, learned counsel for the petitioner has vehemently argued that the petitioner cannot be kept out of the consideration zone on the ground that he had attained the age of 54 years on 01.01.2007, having been born on 17.02.1952. According to the learned counsel, the age of 54 years is required to be determined as per Regulation 2(1)(l) of the Regulations read with the amended Regulation 5 5 C.W.P. No. 15798 of 2009 (3) of the Regulations (P-2). The expression ‘year’ has been defined to mean ‘the period commencing on the first day of January and ending on 31st day of December of the same year’. In other words, the eligibility with regard to the age of the petitioner for inclusion in the select list has to be seen from 1st of January, 2006 because the vacancies have arisen in the year 2006. Learned counsel has emphasised that the Committee has been debarred from considering the cases of the Members of the State Civil Service who have attained the age of 54 years on the 1st day of January of the year for which the select list is prepared. According to the learned counsel it is conceded as a fact that 4 vacancies for the select list had arisen in the year 2006 and, therefore, on the language of Regulation 2(1) (l) read with Regulation 5(3), the age of 54 years is required to be determined on the 1st day of January of the year for which the select list is prepared. Mr. Takkar has referred to the un-amended Regulation as it stood before 25.7.2000, which envisaged the determination of age of 54 years on the 1st April of the year in which the Committee meets. The amendment has been brought about to avoid unfair treatment to those eligible like the petitioner in the years of occurrence of vacancy, especially when the Committee fails to meet ordinarily in that year. Therefore, the pre-amended Regulation 5(3) has made eligibility dependent on the meeting of the Committee whereas by the amendment, the eligibility of a candidate is sought to be protected. 9. For the aforesaid submission, Mr. Takkar has also drawn support from the proviso of Regulation 5(1). According to the learned counsel, the proviso mandates the State Government to prepare a separate select list for each year as on December 31 of that year during which the meeting of the Committee could not be held. The very purpose of preparing separate lists for each year is to avoid any ambiguity and anomaly and to provide fair opportunity to all Members of the State Civil Service (Executive Branch) for promotion to IAS based on their eligibility in 6 C.W.P. No. 15798 of 2009 the relevant year in which the vacancy has fallen vacant. He has highlighted that the Committee could not meet for filling up the vacancies of the IAS for the year 2006 and according to proviso to Regulation 5(1), the State Government was required to prepare a separate select list for each year, as on December 31 of that year for which the Committee could not meet. Learned counsel has condemned apathy of the Tribunal to expressly interpret Regulation 5(3) by taking into account the amendment carried in the year 2000 and comparing the same with the un-amended Regulation 5(3). Had it been so done then it would have interpreted the Regulation as per the prayer made by the petitioner. 10. Mr. Gurminder Singh, learned counsel for respondent Nos. 5 to 10 has submitted that only 4 vacancies of IAS for promotion quota of the State Civil Service, under Rule 9 of the Indian Administrative Service (Recruitment) Rules, 1954 (for brevity, ‘the Rules’) had arisen. The 5th vacancy had occurred due to non-appointment of one Shri Joginder Lal Jain, PCS, in the year 1996-97. The Review Select Committee meeting for the years 1992-93 to 2006 was held on 17.04.2008, however, the petitioner did not fall within the zone of consideration in respect of two vacancies which became available for the year 2006. The meeting for the select lists for the years 2007 and 2008 was held in 2009, which were notified on 13.8.2009 by the Central Government and the petitioner, in fact, is claiming consideration against the select list of 2007. On the legal issues, learned counsel has made the following submissions:- 11. The scheme of the Regulations only contemplate the process starting from the determination of vacancies by the Central Government in consultation with the State Government which, inter alia, determines number of officers to be included in the select list for that year. The number of these vacancies is not to exceed the substantive vacancies that are available on 1st of January of the year in which the meeting is held/ordinarily required to be held. Thus, the number of officers to be 7 C.W.P. No. 15798 of 2009 included could only be known once the number of substantive vacancies is available. This would certainly be on or after 1st of January of a given year. The date and venue of the meeting is to be decided by the UPSC, not by the State Government, and the same has to be ordinarily before 31st December of that year. 12. Regulations 5(2) to 5(3A) provide for the eligibility of the officers for inclusion in the list as per the parameters provided therein. Regulation 5(3) creates a bar on consideration of members of the State Civil Service who have attained the age of 54 years on the 1st of January of the year for which the select list is prepared. This takes care of the situation where the Committee could not meet in the preceding years but as and when it meets, it considers the eligibility for each year separately and no prejudice is caused to an officer, who though would have been eligible had the meeting been ordinarily held in the same year as to which’s relevance the vacancies are determined but has crossed the age of 54 years in the meanwhile before the actual holding of the meeting. This means that the date/year of availability of vacancies for which select list is to be prepared is the same as on which the age of 54 is to be determined, which in this case is 01.01.2007. The un-amended Regulation 5(3) led to discretion in the hands of the authorities to delay the meeting and non-suit the officers who were otherwise eligible in a given year but had attained the age of 54 years on the 1st of January of the year in which the Committee actually met. The word ‘in’, appearing in the Regulation was, thus, amended to ‘for’. The amendment in Regulation 5(3) cured the aforementioned defect. According to the learned counsel, the word ‘for’, thus, only refers to the ‘year’ for which the select list was required to be prepared particularly when select lists for more than one year are being prepared year wise in a common meeting. 13. For a harmonious reading of the Regulations it has to be seen that the process from determination of the number of officers to be included 8 C.W.P. No. 15798 of 2009 in the list, through consideration of the officers in the zone of consideration, classification and finalisation of the names has to be done by the Select Committee in the year following 1st of January on which the substantive vacancies were determined. The list as finally approved by the UPSC under Regulation 7(3) forms the select list for that year. Any select list, though prepared in a subsequent year, shall relate back to the year in which it should have been prepared but could not be prepared due to the Committee not being able to meet. It would, thus, be a select list of that year. 14. In support of the aforementioned submission, learned counsel has placed reliance on the judgments of Hon’ble the Supreme Court rendered in the case of Ramanand Prasad Singh v. Union of India, (1996) 4 SCC 64.. Learned counsel has submitted that the eligibility has to be determined with reference to the year for which the select list is prepared, which in the present case is 01.01.2007. Reliance has also been placed on another judgment of Hon’ble the Supreme Court rendered in the case of Government of India v. G. Limbadri Rao, (2004) 7 SCC 702, where their Lordships’ has interpreted the Indian Administrative Service (Appointment by Selection) Regulations, 1997. It has been submitted that the aforesaid judgment fully support the case of the respondents. 15. He has then argued that harmonious interpretation to the Regulations should be preferred which has been adopted by the State Government, Government of India and UPSC as against the one propounded by the petitioner. According to the learned counsel, such an interpretation, as desired by the petitioner, would result into chaos and that the amendment in the Regulations made in the year 2000 cannot in any manner be read to mean that the person who has attained the age of 54 years on 1st January of the year for which the select list is prepared, would remain eligible even after becoming over-age because the number of vacancies are to be determined on the 1st of January of that year. 9 C.W.P. No. 15798 of 2009 16. Mr. Suvir Sehgal, learned Additional Advocate General, Punjab, appearing for respondent No. 2, has argued that no exception could be taken to the view expressed by the Tribunal. He has pointed out that if vacancies are to be determined for the list to be prepared on 01.01.2007 then to make a person eligible by reference to 01.01.2006, would be an anomaly. According to the learned counsel, it would result into making eligible a person of more than 54 years of age, which is against the spirit of Regulation 5(3). He has maintained that the Central Government-respondent No. 3 as well as UPSC-respondent No. 1 have adopted the interpretation which has been given by the Tribunal. 17. Mr. O.S. Batalvi, learned counsel for respondent No. 3, has adopted the arguments of Mr. Suvir Sehgal, learned State counsel and Mr. Gurminder Singh, learned counsel for respondent Nos. 5 to 10. 18. In order to appreciate the contour of the controversy, it would first be imperative to read Regulation 2(1)(l) and Regulation 5 of the Regulations, which are as under:- Regulation 2(1)(l): “2(1) In these regulations, unless the context otherwise requires: (a) to (k) xxx xxx xxx (l) ‘Year’ means the period commencing on the first day of January and ending on 31st day of December of the same year.” Regulation 5: “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 10 C.W.P. No. 15798 of 2009 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 no meeting of the Committee shall be held, and no list for the year in question shall be prepared when; (a) there are no substantive vacancies as on the first day of January of the year in the posts available for the members of the State Civil Service under Rule 9 of the Recruitment Rules; or (b) the Central Government in consultation with the State Government decides that no recruitment shall be made during the year to the substantive vacancies as on the first day of January of the year in the posts available for the members of the State Civil Service under Rule 9 of the Recruitment Rules; Provided further that where no meeting of the Committee could be held during a year for any reason other than that provided for in the first proviso as and when the Committee meets again, the Select List shall be prepared separately for each year during which the Committee could not meet as on the 31st December of each year. EXPLANATION:- In case of Joint Cadres, a separate select list shall be prepared in respect of each State Civil Service. 5(2): The Committee shall consider for inclusion to the said 11 C.W.P. No. 15798 of 2009 list, the cases of members of the State Civil Services in the order of seniority in that service of a number which is equal to three times the number referred in sub-regulation (1). Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the Select List and in such a case the Committee shall consider all the eligible officers; Provided further that in computing the number for inclusion in the field of consideration, the number of officers referred to in sub-regulation (3) shall be excluded; Provided also that the Committee shall not consider the case of a member of the State Civil Service unless on the first day of January of the year for which the Select List is prepared, he is substantive in the State Civil Service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government. Provided also that in respect of any released Emergency Commissioned or Short Service Commissioned officers appointed to the State Civil Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of January of the year for which the Select List is prepared, in the post of Deputy Collector or in any other post or posts declared equivalent thereto by the State Government. 12 C.W.P. No. 15798 of 2009 EXPLANATION: The powers of the State Government under the third proviso to the sub-regulation shall be exercised in relation to the members of the State Civil Service of constituent State, by the Government of that State. 5(2A): Deleted. 5(3): The Committee shall not consider the cases of the members of the State Civil Service who have attained the age of 54 years on the first day of January of the year for which the Select List is prepared: Provided that a member of the State Civil Service whose name appears in the Select List prepared for the earlier year before the date of the meeting of the Committee and who has