WP(C) 5735/2010 BEFORE HON’BLE MR JUSTICE I.A. ANSARI HON’BLE MR. JUSTICE H. BARUAH J U D G M E N T AND O R D E R H. Baruah, J : The facts and the law involving the writ petitions above being i dentical, same are being disposed of by this common judgment. 2. The common order dated 20-1-2010 passed in Original Application Nos. 80 and 81 of 2010 by the Central Administrative Tribunal (for short CAT), G uwahati Bench is put under challenge whereby and whereunder the select list of 2 004, 2005 as well as 2006 including the notification dated 31-5-2007 are set asi de and quashed. 3. The Union Public Service Commission (for short UPSC) and the sel ection committee constituted under the Indian Police Service (Appointment by Pro motion) Regulations, 1955 for preparation of select list for the year 2004, 2005 and 2006 in respect of Assam Meghalaya Joint Cadre being aggrieved by the order dated 20-1-2010 filed the above two writ petitions challenging its legality and correctness. 4. Respondent No. 1 (in both the writ petitions) being aggrieved b y and dissatisfied with the constitution of the selection committee and preparat ion of the select list for the year 2004, 2005 and 2006 as well and notification made therefor dated 31-5-2007, as applicants filed two original applications be ing O.A No. 80 of 2010 and O.A No. 81 of 2010 challenging the select lists and t he notification dated 31-5-2007. The pleaded case of the respective respondent i n the original application may be projected as under: Respondents are direct recruitee of Assam Police Service and now members of the service. Respondent Dilip Kumar Baruah was selected in the year 1981 while respondent Guneswar Duwari in the year 1990. The manner and method in which promotions of the State Police Service Officers to the Indian Police Serv ice are to be made is spelt out in the Indian Police Service (Recruitment) Rules , 1954 and Indian Police Service (Appointment by promotion) Regulation, 1955. Un der the Indian Police Service (Recruitment) Rules, 1954 the Central Government i s to determine the number of vacancies and on determination of number of vacanci es for a particular year, the State Government concerned is required to forward to the selection committee the details of State Police Service Officers in order of seniority and three times the number of vacancies so determined for a partic ular year. In the year 2004 and 2005 there had been 05 and 03 vacancies in the A ssam Segment of Assam Meghalaya Joint Cadre and the State Govt. therefore forwa rded a list of Officers with the inclusion of the respondents for filing up the vacancies for the years as indicated. However, respondents were not selected for induction in IPS Cadre. In the original applications it was contended by the re spondent No. 1 ( in both the writ petition) that composition of the selection co mmittee meeting held on 27-12-2006 was not in accordance with the mandate of Reg ulation 3 of the IPS (Appointment by Promotion) Regulations, 1955 and, therefore , selection made for the year 2004 and 2005 would be illegal and not tenable in law. The selection of the officers for the Assam Meghalaya Joint Cadre is always required to be made in consonance with Regulation 5 of the Regulations and whil e doing so, the selection committee, for promotion by appointment for the vacanc ies, is required to be constituted as per provisions of Regulation 3 of the Regu lation, 1955 (unamended) and not by virtue of the amended Regulations, which cam e to be amended in the year 2005 and effective on and from 31st January 2005. Th erefore, constitution of the committee was contrary to Regulations 3 of Regulati ons 1955 and entire proceedings were void and illegal. The second basic contenti on that was raised in O.A No. 81 of 2010 by respondent Guneswar Duwari is that he had been under cloud for the period from 29-07-1999 to 28-9-2001 and while f orwarding his name, the State Government had clearly observed/indicated that h e was facing a disciplinary proceeding which remained inconclusive. Subsequently , he was exonerated and the period of suspension from 29-07-1999 to 28-09-2001 w as regularized as on duty for all purposes vide order dated 10-2-2006. Therefore , recommendation made by the State Government indicating that he was under cloud was not justified and in that case entire proceedings ought to have been review ed and appropriate entry should have been made by the State Govt. for his recomm endation b y the UPSC. Since this procedure had not been followed he could not s ecure appropriate grading for making him eligible for selection in the concerned year. 5. Being aggrieved by non-inclusion of their names in the select li st for the year 2004, 2005 and 2006 as well, they approached the CAT, Guwahati B ench, for the following reliefs: (1) To set aside and quash the selection held for preparation of the select list against the vacancies identified in the Assam segment of the IPS Assam Megh alay Joint Cadre for the year 2004 and 2005; (2) To set aside and quash the notification dated 31-05-2007; and (3) for a direction to the respondent authorities to convene a Review Select ion Committee Meeting for consideration the cases of all eligible officers inclu ding the respondent No. 1 ( in both the writ petitions) for preparation of selec t list against vacancies identified in Assam segment of the IPS Assam Meghalaya Joint Cadre for the year 2004 and 2005. 6. Both the applications were resisted by the respondents, official as well as private, by filing reply. UPSC filed its reply contending that both the applicants/respondents were duly considered for the years 2004 and 2005 vac ancies. Since applicant/respondent Dilip Kumar Baruah, crossed 54 years as on 01 -01-2005 he was not considered while applicant respondent Guneswar Duwari was co nsidered for both the years, i.e. 2004 and 2005. Since Duwari was graded good his name was not included in the select list. It was also the case of the UPSC t hat IPS (Appointment by Promotion) Regulations 1995 amended vide notification of Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training dated 31-01-2005 had been followed. 7. Private respondents contended that they being senior in the grad ation list in comparison to applicants/respondents were rightly selected and inc luded in the select list 2004 and 2005 and that apart they had been graded ver y Good . 8. The stand taken by the UPSC had been severely attacked by the ap plicants/respondents contending their stand stated hereinbefore. 9. Learned Central Administrative Tribunal (CAT) Guwahati Bench too k much pain to settle issues raised in the application. It held as follows: (1) Select List of 2004 cannot be sustained in law particularly when respon dents have followed IPS (Appointment by Promotion) Regulations, 1955 as amended on 31-01-2005. Said Regulations were in applicable for the select list of 2004. However, said amendment would have it full and complete application for the sele ct list of 2005. (2) Notification dated 31-05-2007 would require necessary amendment, if any, subject to out come of Review Selection Committee to be held in accordance of l aw disregard to aforesaid amendment, which exercise shall be carried out expedit iously as possible not later than a period of three months from the date of rec eipt of this order. The State Government was further directed by the learned Tribunal to place compl ete and actual factual aspects in regard to applicant Guneswar Duwari vis-à-vis ACR before the UPSC for its proper, just and fair consideration. 10. From the pleaded facts, the stand taken by the respondent(s), n ow petitioners in the original applications and the law, the following basic iss ues have cropped up before us: (i) Whether the composition of the selection Committee was in accordance wi th the mandate of Regulation 3 of IPS (Appointment by Promotion) Regulations, 19 55; (ii) Whether selection made by the committee for filling up the vacancies for the year 2004 is valid; and (iii) Whether non placement of required actual factual aspects in respect of applicant/respondent Guneswar Duwari by the State Govt. before UPSC affected the selection for the year 2004 and 2005. At this stage it would be pertinent to state that the selection committee consid ered the case of Dilip Kr. Baruah for the year 2005, Guneswar Duwari for the yea r 2004 and 2005. Selection of Dilip Kr. Baruah was turned down on account of his over age, while Duwari’s selection was turned down for his grading as good in the ACR. 11. Before answering the aforesaid basic issues, it would be apposit e for us to refer, rather place Regulation 3 of IPS (Appointment by Promotion) R egulations, 1955, which came to be substituted by an amendment in the year 2005, giving effect to from 31-01-2005. Relevant excerpts of the amended Regulation 3 read as follows: 3. Constitution of the Committee to make selection- (1) There shall be cons tituted for a State Cadre or a Joint Cadre specified in column 2 of the 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 othe r members specified in the corresponding entry of column 3 of the Schedule: Provided that- (i) no member of the Committee other than the Chairman or the member of the Commission shall be a person who is not a member of an All India Service; (ii) the nominees of the Government of India shall not belong to the cadre of the State for which the meeting of the Committee is to be held; and (iii) the Central Government may after consultation with the State Government concerned, amend the Schedule. 3(2) The Chairman or the member of the Commission shall preside at all meetin gs of the Committee in which he is present. 3(3) The absence of a member, other than the Chairman or member of the Commis sion, shall not invalidate the proceedings of the Committee if more than half th e members of the Committee had attended the meeting. 3. In the said regulations, after regulation 10, the following Schedule sha ll be added, namely:- S.No. Name of the State Cadre/Joint Cadre Other members of the Committee 1. Arunachal Pradesh, Goa, Mizoram and Union Territories. a) Chief Secre tary of the constituent State for which the meeting is held and in respect of Un ion territory segment, the senior-most Chief Secretary amongst the Chief Secreta ries to the Union Territory administrtions; b) the senior-most Chief Secretary o f the remaining constituents of the Cadre; c) DGP of the constituent state for which the meeting is held. In respect of Union territory segment, the Commissio ner of Police, Delhi; d) Head of Home Department of the constituent segment for which the meeting is held, not below the rank of Secretary to Government. In cas e of Union territory segment, the senior-most officer looking after Home Departm ent among all Union Territories; e) Special/Additional Secretary, Government of India, dealing with AGMUT cadre in Ministry of Home Affairs; and f) two nomine es of Government of India not below the rank of Joint Secretary. 2. Assam-Meghalaya and Manipur- Tripura Joint Cadres. a) Chief Secret ary to the Governments of the constituent States; b) Director Generals of Police of the constituent States; and c) two nominees of Government of India not bel ow the rank of Joint Secretary. 3. Other Cadres a) Chief Secretary of the State Government; b) Secreta ry, Home Department or Principal Secretary (Home) of the State Government as the case may be ; c) the Director General of Police of the State Govt.; and d) tw o nominees of Government of India not below the rank of Joint Secretary. Schedule (see regulation 3) The unamended Regulation 3 of the IPS (Appointment by Promotion) Regulations, 19 55 reads as follows : 3. Constitution of the Committee to make selection :- (1) There shall be constituted for a State Cadre or a joint cadre a Committee c onstituting of the Chairman of the Commission or, where the Chairman is unable to attend, any other Member of the Commission representing it and the following other member namely.- (a) For State other than Joint Cadre: (i) Chief Secretary (ii) Officer not below the rank of Secretary to the Government in-charge of H ome Department; (iii) Director-General and Inspector-General of Police; Where no Cadre post of Director-General and Inspector General of Police exists, then the Inspector General of Police; (iv) A nominee of the Government of India not below the rank of Joint Secretary . (b) For Joint Cadre posts other than Arunachal Pradesh Goa-Mizoram-Union Ter ritories: (i) Chief Secretary to the Government of the Constituent States; (ii) Director-General and Inspector-General of Police of the Constituent Stat es; OR Where no cadre posts of Director-General and Inspector-General or Police exists, then the Inspector-General of Police of the constituent States; (iii) A nominee of the Government of India not below the rank of Joint Secreta ry. (emphasis supplied) Thus the basic departure as can be noticed from the perusal of the Regulation 3 is in regard to the Nominee of the Govt. of India not below the rank of Joint Secretary. In the un-amended Regulation 3 of the Regulations, 1955, only a nomi nee was suggested while in the amended Regulation 3 of the Regulations 2005 the re were two nominees. 12. Selection Committee was convened on 27-12-2006 for filing up the vacancies, by promotion, for the year 2004, 2005, and 2006 as well. Regulation 3 of IPS (Appointment by Promotion) Rgulation, 1955 was amended in the year 2005 giving effect to on and from 31-01-2005. Selection committee, so constituted as per amended Regulation, cannot legally consider the eligibility of the candidat es for the vacancies of 2004 and even for the vacancies arising on the 1st day o f 2005. Vacancies for the year 2004 and 2005 mean vacancies arising on the 1st d ay of January 2004 and 2005 and not thereafter. Admittedly, selection committee was constituted under amended Regulation. 13. Un-amended Regulation provided two kinds of committees namely, f or State other than Joint Cadre and for State where Joint Cadre is in existence. Since we are concerned with Assam Meghalaya, which is a joint cadre, it is sub- rule 3(1)(b) of the un-amended regulation which would be relevant for our consi deration. Un-amended regulation would reveal that it did not authorize nominatio n of more than one officer of the rank of Joint Secretary of the Govt. of India, while under amended regulation, it provided two nominees of Govt. of India not below the rank of Joint Secretary in case of Assam-Meghalaya Joint cadre. We hav e already indicated herein before that vacancies are for 2004, 2005 and 2006 as well. Regulation 3 of the IPS (Appointment by Promotion) Regulation 1955 being amended in the year 2005, giving effect to on and from 31-1-2005, the selectio n committee constituted under amended regulation, therefore, cannot legally sele ct the candidates for filling up the vacancies for the year 2004 and vacancies a rising on the 1st day of January, 2005. 14. Regulation 5 of the Regulations provides provision for preparati on of a list of suitable officers. It reads as follows: 5. PREPARATION OF A LIST OF SUITABLE OFFICERS:- 5(1) Each Committee shall ordinarily meet every year and prepare a list of su ch members of the State Police Service as are held by them to be suitable for pr omotion to the Service. The number of members of the State Police Service to be included in the list shall be determined by the Central Government in consultati on with the State government concerned, and shall not exceed the number of subst antive 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 yea r 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 Police 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 member s of the State Police Service under rule 9 of the Recruitment Rules; Provided further that where no meeting of the Committee could be held during a y ear 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 ea ch year during which the Committee could not meet as on the 31st December of eac h year. EXPLANATION:- In case of Joint Cadres, a separate select list shall be prepared in respect of each State Police Service. 5(2) The Committee shall consider for inclusion to the said list, the cases o f members of the State Police Services in the order of seniority in that service of a number which is equal to three times the number referred in sub-regulatio n(1). Provided that such restriction shall not apply in respect of a State where the t otal number of eligible officers is less than three times the maximum permissibl e size of the Select List and in such a case the Committee shall consider all th e eligible officers; Provided further that in computing the number for inclusion in the field of cons ideration, the number of officers referred to in sub-regulation(3) shall be excl ude; Provided also that the Committee shall not consider the case of a member of the State Police Service unless on the first day of January of the year for which th e Select List is prepared he is substantive in the State Police Serivice and has completed not less than eight year of continuous service( Whether officiating o r substantive) in the post of Deputy Superintendent of Police or in any other po st or posts declared equivalent thereto by the State Government. Provided also that in respect of any released Emergency Commissioned or Short Se rvice Commissioned officers appointed to the State Police Service, eight years o f continuous service as required under the preceding proviso shall be counted fr om the deemed date of their appointment to that service, subject to the conditio n that such officers shall be eligible for consideration if they have completed not less that four yeas of actual continuous service, on the 1st day of January of the year for which the Select List is prepared, in the post of Deputy Superin tendent of Police or in any other post or posts declared equivalent thereto by t he State Government. 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 Police Service of the constituent State, by the Government of that State. 5(2)(A): Deleted. 5(3): The Committee shall not consider the cases of the member of the State Po lice Service who have attained the age of 54 years on the first day of January o f the year for which the Select List is prepared: Provided that a member of the State Police Service whose name appears in the Sel ect List in force immediately before the date of the meeting of the Committee a nd who has not been appointed to the service only because he was included provis ionally in the Select List shall be considered for inclusion in the fresh list t o be prepared by the Committee, even if he has in the meanwhile, attained the ag e of fifty four years. Provided further that a member of the State Police Service who has attained the age of fifty four years on the first day of January of the year for which the Se lect List is prepared shall be considered by the Committee, if he was eligible f or consideration on the first day of January of the year or any of the years im mediately preceding the year in which such meeting is held but could not conside red as no meeting of the Committee was held during such preceding year or years under item (b) of the proviso to sub-regulation(1) . 5.(3)(A) The Committee shall not consider the case of such member of the State Police Service who had been included in an earlier select list and - a) had expressed his unwillingness for appointment to the service under reg ulation 9; Provided that he shall be considered for inclusion in the Select List, if before the commencement of the year, he applies in writing, to the State Government ex pressing his unwillingness to be considered for appointment to the service; b) was not appointed to the service by the Central Government under regulat ion 9(a). 5(4) The Selection Committee shall classify the eligible officers as ’Outstan ding’, ’Very good’, ’Good’, and ’unfit’ as the case may be on an overall relativ e assessment of their service records. 5(5) The List shall be prepared by including the required number of names fir st from amongst the officers finally classified as ’outstanding’ then from among st those similarly classified as ’Very Good’ and thereafter from amongst those s imilarly classified as ’Good’ and the order of names inter-se within each catego ry shall be in the order of their seniority in the State Police 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 resp ect of such an officer or any proceedings, departmental or criminal are pending against him or anything adverse against him which renders him unsuitable for a ppointment to the service has come to the notice of the State Government. Provided further that while preparing yearwise select lists for m ore than one y ear pursuant to the 2nd proviso to sub regulation (1), the officer included prov isionally in any of the Select List so prepared shall be considered for inclusio n 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 si ze 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-shee t has actually been issued to the officer or filed in a Court as case may be. EXPLANATION II: The adverse thing which came to the notice of the State Governme nt rendering him unsuitable for appointment to the service shall be treated as h aving come to the notice of the State only if the details of the same have been communicated to the Central Government and the Central Government is satisfied t hat the details furnished by the State Government have a bearing on the suitabil ity of the officer and investigation thereof is essential. 15. It therefore, postulates that substantive vacancy(s) should exis t/occur on the 1st day of January. Thus, for filling up the vacancy(s) for the year 2004, the selection committee, so constituted, cannot be said to