IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 WP(C).No. 2477 of 2009(S) ------------------------- OA.396/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------------- 1. UNION PUBLIC SERVICE COMMISSION (UPSC) REP. BY ITS SECRETARY, DHOLPUR HOUSE, SHAHJAHAN ROAD, NEW DELHI. 2. THE SELECTION COMMITTEE FOR APPOINTMENT BY PROMOTION TO THE INDIAN POLICE SERVICE, KERALA CADRE, REP. BY ITS CHAIRMAN, UNION PUBLIC SERVICE COMMISSION (UPSC) SHAHJAHAN ROAD, NEW DELHI. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SR.PANEL SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE RESPONDENT(S): ------------------------- 1. A. MOHANAN, SUPERINTENDENT OF POLICE (RETD.) THIRUVANANTHAPURAM. 2. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY MINISTRY OF HOME AFFAIRS, NEW DELHI. 3. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, GENERAL ADMINISTRATION, SPECIAL A DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. 4. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM. 5. K.J.DEVASIA, SUPERINTENDENT OF POLICE (RETIRED) KARAMVELIL HOUSE, KURAVILAMGAD, KOTTAYAM – 686 633. ADDL.6. T.P.MOHANDAS, S/O.LATE P.SANKARAN NAIR, AGED 55, “MADURIMA” THIRUVALI P.O. MANJERI VIA MALAPPURAM. W.P.(C) No.2477 of 2009 : 2 : (IMPLEADED AS ADDITIONAL 6TH RESPONDENT AS PER ORDER DT. 16.3.2010 IN I.A.NO.13126 OF 2009) BY ADV. SRI.P.M.GOPINATHA MENON FOR R2 BY ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R1 BY ADV. SRI.P.K.MANOJKUMAR FOR R1 BY ADV. SMT.SUSHYA RAJAN FOR R1 BY ADV. SRI.S.SREEKUMAR FOR R5 BY ADV. SRI.PIRAPPANCODE V..SUDHIR FOR ADDL.R6. BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.2477 of 2009 EXT.P1 TRUE COPY OF ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A.NO.396 OF 2007 EXT.P2 TRUE COPY OF ORIGINAL APPLICATION O.A.NO.296/2007 FILED BY THE FIRST RESPONDENT. EXT.P3 TRUE COPY OF REPLY STATEMENT FILED BY PETITIONER. EXT.P4 TRUE COPY OF LETTER DATED 1.11.2008 TO THE PETITIONER FROM THE STATE GOVERNMENT. EXT.P5 TRUE COPY OF LETTER DATED 30.9.2008 FROM THE PETITIONER TO THE STATE GOVERNMENT. EXT.P6 TRUE COPY OF THE CIRCULAR LETTER NO.14015/14/81-AIS (I) OF THE GOVERNMENT OF INDIA, MIN. OF HOME AFFAIRS, DEPARTMENT OF PERSONNEL & ADMINISTRATIVE REFORMS DATED 7.7.1981. EXT.P7 TRUE COPY OF THE INTERNAL GUIDELINES OF THE UNION PUBLIC SERVICE COMMISSION FOR CATEGORISATION OF STATE CIVIL/POLICE/ FPREST SERVOCE OFFICERS & PREPARATION OF A LIST OF SUITABLE OFFICERS BY THE SELECTION COMMITTEE FOR CLASSIFICATION FOR PROMOTION TO IAS/IPS/IFS EXT.P8 TRUE COPY OF THE IPS (APPOINTMENT BY PROMOTION) REGULATIONS, 1955. EXT.P9 TRUE COPY OF THE CIRCULAR LETTER NO.14015/7/88-AIS (I) OF THE GOVERNMENT OF INDIA, DEPARTMENT OF PERSONNEL & TRAINING, NEW DELHI DATED JULY 1988. EXT.P10 TRUE COPY OF COMMUNICATION DATED 31.10.2008 OF UNDER SECRETARY TO GOVERNMENT OF KERALA ADDRESSED TO GENERAL ADMINISTRATION (SPECIAL A) DEPARTMENT. EXT.P11 TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE MEETING HELD ON 17.5.2007 TO PREPARE THE SELECT LIST OF 2006 FOR PROMOTION TO THE IPS OF KERALA CADRE. EXT.P12 TRUE COPY OF THE RELEVANT PORTION OF THE PROPOSAL REGARDING COMMUNICATION OF ADVERSE REMARKS IN THE ACR OF SRI.A.MOHANAN RECEIVED FROM THE GOVERNMENT OF KERALA. \ EXHIBITS OF ADDL.R6 ANNEXURE I TRUE COPY OF JUDGMENT IN W.A.NO.1537 OF 2005 DT.30.1.2006. ANNEXURE II TRUE COPY OF ORDER NO.GO(RT) NO.3182/05/HOME DATED 19.12.2005. //TRUE COPY// P.A. TO JUDGE. P.R.RAMAN, Ag.C.J. & S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C) No.2477 of 2009 ------------------------------- Dated this the 16th day of March, 2010 J U D G M E N T Raman, Ag.C.J. The petitioners are the respondents 2 and 4 respectively, in the Original Application No.396 of 2007, on the file of Central Administrative Tribunal, Ernakulam Bench, filed by the first respondent herein as the applicant. 2. This writ petition is filed challenging Ext.P1 order, dated 25.8.2008, passed by the Central Administrative Tribunal, which partly allowed the original application quashing the grading of “Good” given by the selection committee to the applicant and also directed the Union Public Service Commission to re-assess the relevant service records of the applicant through a Review DPC. If the Review DPC results has any improvement in his gradings, the 1st and 3rd respondents therein, were directed to extend all consequential benefits to the applicant by creating a W.P.(C) No.2477 of 2009 2 supernumerary post, without unsettling the selection and appointment of the candidates in the select list already notified on 7.11.2007. A time limit of three months was also given for completing the above exercise. 3. The brief facts stated are as follows. The applicant in the O.A. was working as a Superintendent of Police, Railways, Trivandrum, who belonged to the Kerala State Police Service. He joined the service as a Circle Inspector, later promoted as Deputy Superintendent of Police in 1996, and again as Superintendent of Police in the year 2003. He is eligible to be considered for appointment by promotion to the Indian Police Service by virtue of the provisions of the IPS (Appointment by promotion) Regulations 1955. He was included in the zone of consideration for the vacancies pertaining to the years 2002 to 2004, but he was not finally selected. He was also in the zone of consideration for the year 2006. But in the selection committee meeting met on 17.5.2007 for selection W.P.(C) No.2477 of 2009 3 for the year 2006, the applicant was not selected by the Selection Committee of the UPSC. The selected names were notified by the Ministry of Home Affairs on 7.11.2007. Hence, the applicant, aggrieved by the denial of selection by the Selection Committee, filed the Original Application, seeking to declare that he is entitled to be included in the list of suitable officers for selection and appointment to the Indian Police Service, Kerala Cadre, for the year 2006, and for appointment to the Indian Police Service, Kerala Cadre; to set aside the selection and inclusion of the 6th respondent in the list of eligible officers for appointment by promotion to the Indian Police Service, Kerala Cadre, for the year 2006; to set aside Annexure-A27 notification dated 7.11.2007 issued by the first respondent, in so far as it relates to the appointment of the 6th respondent in the Indian Police Service, Kerala Cadre; and for other consequential reliefs. W.P.(C) No.2477 of 2009 4 4. It was the contention of the applicant before the Tribunal that the selection committee has not made proper assessment of the service of the applicant. Except for two adverse remarks pertaining to the period 1.1.2002 to 6.9.2002 (Annexure-A5) and the for the period 27.1.05 to 14.7.05 (Annexure-A7), there are no other adverse entries in his record. The first entry relating to the period 1.1.2002 to 6.9.2002 is to the effect that the applicant is an “Average Officer”. This was communicated to him, he made a report against the entry and the same was pending consideration. The second adverse remark that he is an “Average Officer” was however not communicated to him. According to him, he has various good service entries as evidenced by Annexures A8 to A13. He also contended that some Vigilance enquiry was ordered against the 6th respondent which was subsequently dropped by the State Government with a view to favour him. His further contention was that the classification of officers who were considered for appointment is absolutely arbitrary and unsustainable in law. W.P.(C) No.2477 of 2009 5 5. The respondents filed reply statements. In the reply on behalf of the first respondent, various provisions of IPS (Appointment by promotion) Regulations have been reiterated. Pointing out the same, it was also stated that the present O.A. primarily concerns the State Government and the UPSC, and prayed that the submissions made on behalf of them be considered and referred. In the reply filed on behalf of respondents 3 and 5, viz., the State Government and the Director General of Police, they contended that the name of the applicant was included in the zone of consideration for the years 2002 to 2004, but he was not selected by the Selection Committee. It was further stated that for the year 2006 also, he was in the zone of consideration against five vacancies notified. The 6th respondent was also in the zone of consideration. They denied the allegation that vigilance enquiry against the 6th respondent was dropped to benefit him as untrue as no vigilance enquiry was pending against him. W.P.(C) No.2477 of 2009 6 6. UPSC in the reply statement contended that the selection committee meeting to prepare the select list for the year 2006 was held on 17.5.2007, in compliance with the directions of the Tribunal in O.A.No.512 of 2006 and O.A.No.36 of 2007. There were five vacancies for the year 2006. The number of officers in the zone of consideration was 15. It was stated that the applicant's name was at Serial No.5 of the list of officers included in the zone of consideration. 6th respondent was also considered by the Committee on the basis of the DOPT Circular dated 22.11.1999 (Annexure -I). It was on overall assessment of the service records that the Committee graded the applicant as “Good”. His name could not be included in the Select list due to statutory limit on the size of the select list. 6th respondent was included in the select list on the basis of a higher grade awarded to him. It was their specific contention that while assessing the suitability of the officers for promotion as per the uniform and consistent practice followed the Selection Committee examines the service records of officers, with special W.P.(C) No.2477 of 2009 7 reference to their performance during the years preceding the years for which the select list was prepared, and it was after detailed deliberation and discussion that they arrived at a grading. While doing so, the selection committee also reviews the overall grading recorded in the CRs to ensure that it is not inconsistent with the grading/remarks under various specific attributes. The merit alone was the core of the selection process. It was contended that the selection being for promotion and being based on merit, no officer has the legal right to be selected for promotion, except that he has the right to be considered along with others. Reliance was also placed on the decision of the Apex Court reported in AIR 1987 SC 593. At the time of furnishing the information by the State Government, while submitting the proposal, no disciplinary proceedings has been shown as pending against the 6th respondent. The selection committee takes into account only pending disciplinary/criminal cases where a charge sheet has already been issued or a case has been filed in Court of law. It was W.P.(C) No.2477 of 2009 8 further stated that the selection was made strictly in accordance with the provisions of Regulation 5(4) and 5(5) of the IPS Promotion Regulations. These regulations inter alia provides for classification of officers as outstanding, very good, good and unfit as the case may be, on an overall relative assessment of their service records. The list was prepared by placing outstanding officers on top followed by those who are classified as Very Good and then Good. 7. The six respondent in his reply filed before the Tribunal has contended that no vigilance enquiry was ordered or conducted against him. He never received any memo in regard to any vigilance enquiry. He had earlier expressed his unwillingness to join the IPS. But subsequently on 31.5.2007, he revoked his unwillingness. It was also stated that the third proviso to Regulation 9 provides that an officer can revoke the unwillingness earlier expressed. There were no adverse entries against him. W.P.(C) No.2477 of 2009 9 8. The Tribunal took up for consideration the issue as to whether the non-selection of the applicant for appointment to the IPS for the year 2006 is vitiated by any illegality or arbitrariness. In that regard, it referred to Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1955. The contention of the applicant mainly was on two grounds that except for two adverse entries in 2002 and 2005, he had an excellent record and even though adverse remark is only that he is an “average officer”, representation made against the first adverse entry is pending and the second entry is not communicated to him. The selection of the sixth respondent though was held to be arbitrary and illegal, the Tribunal eventually found that his inclusion in the select list is not arbitrary and illegal, and the said finding has become final. The Tribunal went on to consider the minutes of the meeting, where the applicant was given an overall grading of “Good”. Out of 10 officers who received the overall grading of “Very Good”, only five was included in the Select List as the there were only five W.P.(C) No.2477 of 2009 10 vacancies. It was also mentioned in the minutes that the Committee considered the Annual Confidential Reports of the officers in the zone of consideration. The entries in the general remarks column were extracted in paragraph 10 of the order of the Tribunal, from which it can be seen that the during the five years upto 2005, the final grading given by the senior most officer who has assessed the work of the applicant ranges from 'Average to Outstanding'. The applicant secured 'average grade' during the period 27.1.05 to 14.7.05 and it was not communicated and the selection committee has ignored the said entry. In place of the Annual Confidential Report for 11.4.2005 to 14.7.2005, the Tribunal presumed that the committee would have considered ACR of 2000, i.e., prior to the five year period. The applicant was graded 'very good' for major part of the year 2000 and 'outstanding' for the years 2003 and 2004. The Tribunal observed that for the year 2002, since the representation against adverse remarks of 'Average' given by the DIG for the period 1.1.2002 to 6.9.2002 has not been taken, it W.P.(C) No.2477 of 2009 11 should be treated as not communicated and has to be ignored, and in its place, another previous years Annual Confidential Report will have to be considered. This observation of the Tribunal is however seriously challenged in this writ petition. For the year 1999, the applicant was marked 'very good'. For the year 2001 also, he received good grade and according to the Tribunal, this would show that during the five years period, he has received two 'outstanding' grades, two 'very good' grades, and one 'Good' grade, for the years 2003-04, 1999-2000 and 2001 respectively. According to the Tribunal, there is no inconsistency between these remarks and the overall grading in the Annual Confidential Reports. Therefore, the Tribunal felt that gradation of the applicant as 'good' by the committee was not correctly done. It even observed that remarks as “an average officer” during the period 1.1.2002 to 6.9.2002 was not ignored by the Committee since it has been communicated. In the absence of any decision taken on the representation, these adverse remarks should have been ignored by the committee. W.P.(C) No.2477 of 2009 12 After referring to some of the decisions of the Apex Court, it concluded by saying that certain entries in the Annual Confidential Reports relating to the period 1.1.2002 to 6.9.2002 could not have been considered by the Committee, hence a fit case to issue direction to assess the service record of the applicant through a review DPC, and to that extent, the application was allowed. 9. Aggrieved by the order thus passed by the Tribunal, this writ petition has been filed seeking to quash the findings thereof and the directions issued by the Tribunal. 10. We have heard the learned Senior counsel, Sri.O.V.Radhakrishnan, appearing for the petitioners, and the Senior Counsel, Sri.N.Nandakumara Menon, appearing for the first respondent-applicant, and learned Government Pleader appearing on behalf of the State. W.P.(C) No.2477 of 2009 13 11. The point that arise for consideration is as to whether there is any justification for the Tribunal to suppose or presume that the Annual Confidential Reports for the period 1.1.2002 to 6.9.2002 was also considered by the Committee while evaluating the merit of the application warranting to issue the direction for a reassessment by a review DPC. 12. The learned Senior Counsel, Sri.O.V.Radhakrishnan, appearing for the petitioners forcefully contended that selection is done by a duly constituted selection committee in a fair and objective manner, on the basis of the relevant records and following the relevant provisions of the Indian Police Service (Appointment by Promotion) Regulation, 1955 (hereinafter referred to as 'Regulation' for short). According to him, as per Regulation 5(4), the selection committee shall classify the eligible officers as 'outstanding' 'very good' 'Good' or 'Unfit' as the case may be, on an overall relative assessment of their service records. In the instant case, W.P.(C) No.2477 of 2009 14 according to him, the Tribunal in paragraph 10 of its order has tabulated the general remarks in the Annual Confidential Reports of the applicant for the years 1998-2005 and also made certain observations in paragraph 11 of the order, and according to him, it shows that the Tribunal has assumed the role of the selection committee and questioned the overall assessment of 'Good' with reference to the remarks of the reporting and reviewing officers in the Annual Confidential Reports from 1998 to 2005. In this regard, placing reliance on a decision of the Apex Court reported in Nutan Arvind v. Union of India, he contends that “when a high level committee had considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, Court cannot sit over the assessment made by the DPC as the appellate authority”. Since the order of the Tribunal conveys the implicit direction that for the years 2002 and 2005, the selection committee should have ignored the Annual Confidential Reports for 1.1.2002 to 6.9.2002 and 11.4.2005 to 14.7.2005, and instead considered the Annual W.P.(C) No.2477 of 2009 15 Confidential Report for the year 1999 and 2000. According to him, in terms of the guidelines in matters of consideration of adverse remarks, if the adverse remarks have been communicated to the officer and he has also represented within the stipulated time and the representation of the officer is under consideration by the State Government at the time of the meeting of the selection committee, the Selection Committee may include the name of the officer in the list provisionally subject to the expunction of adverse remarks from the confidential report concerned, if on the basis of the totality of his performance as reflected in his service records, he is considered suitable for promotion. As the adverse remarks were not communicated, the same need not be taken into consideration. Thus, in the event of uncommunicated/undecided adverse remarks, it is the adverse remarks that have to be ignored and not the Annual Confidential Reports for those years. According to him, it cannot be concluded that the grading of 'Good' assigned by the Selection Committee was solely because the W.P.(C) No.2477 of 2009 16 undecided adverse in Annual Confidential Report for the period 1.1.2002 to 6.9.2002 was not ignored by the selection committee. To presume so in the absence of anything more is unwarranted. He also submitted that the assessment of the selection committee is immune to judicial scrutiny except on the limited grounds of malafides or arbitrariness. He also placed reliance on certain decisions of the Apex Court to support his contentions. 13. Per contra, the learned Senior Counsel, Sri.Nandakumara Menon, appearing on behalf of the first respondent supported the impugned order. According to him, if the assessment made by the selection committee is arbitrary and selection based on such assessment is vitiated, then the Tribunal is fully competent to mould the relief and to direct re- assessment by a review DPC. It is contended that in the reply statement filed by the UPSC, in paragraph 8.2, it is stated that the entries in the confidential records are a sound and objective W.P.(C) No.2477 of 2009 17 basis for making a comparative assessment of all the eligible officers. The Annual Confidential reports as available in the character roll of an officer, therefore, indicate the category to which a particular officer may belong. On an overall assessment of the performance as reflected under various coloumns of his Annual Confidential Reports of preceding five years, the selection committee assessed the applicant as 'good', and denied the contention of applicant. Though he contended that in case there is any uncommunicated adverse remark or the adverse remarks against which representation is pending consideration, the annual confidential reports for that period should be ignored and the equal number of period prior thereto is liable to be considered. 14. During the course of argument, it was specifically pointed out by the learned counsel appearing for the petitioner that apart from the contention as raised by him, subsequently the representation made by the applicant and W.P.(C) No.2477 of 2009 18 pending consideration before the Government was rejected as such, it will be an unnecessary exercise for the Departmental Promotion Committee to review the assessment by constituting the review DPC, since one of the adverse remarks having been not communicated was rightly ignored by the selection committee and presumption made by the Tribunal that the second adverse remark against which representation was pending would have gone into consideration by the selection committee as a reason to vitiate the selection, based on which the directions is issued no longer exists, since if the review DPC is to meet, necessarily, this order passed by the Government rejecting his application only confirms the adverse remark. Therefore, it is an exercise in futility. Consideration by Court:- 15. It is not in dispute that there were five vacancies notified against which a list of 15 officers were considered by the selection committee including the applicant. W.P.(C) No.2477 of 2009 19 He has been given overall grading of 'good'. Out of the 10 officers who received the overall grading of 'very good', only five were included in the select list as there were only five vacancies. Referring to the minutes of the meeting that the committee considered the annual confidential reports of the officers in the zone of consideration upto 2005 and on the basis of overall relative assessment of their service records, assessed them, and in doing so, the committee has also taken into consideration the provisions contained in 5(4) and 5(5) of the Regulations. The Tribunal also observed that it was mentioned in the minutes that the committee did not take into consideration any adverse remark in the Annual Confidential Report of the Officers which were not communicated to them. The Tribunal hence entered a specific finding to the effect that the aforesaid mention in the minutes removes the apprehension in the mind of the applicant that an uncommunicated remark in his Annual Confidential Report of 2005 may have gone against him. So much so, regarding the uncommunicated adverse entry W.P.(C) No.2477 of 2009 20 as an average officer which is not communicated to him, having been not taken into consideration, even the Tribunal did not find it as a ground available to unsettle the selection. Hence the Tribunal itself held that the only point that is now left for our consideration is whether the adverse remark of 'average officer' in the ACR for the period 1.1.2002 to 6.9.2002 communicated to the applicant has been responsible for the non-selection of the applicant. In that regard, it noticed the fact that the applicant had made a representation against the said adverse remarks. However, the third respondent, State of Kerala, had not taken a decision on the representation. While sending the proposal to the UPSC, the Government of Kerala also mentioned that no decision has been taken by them on the representation made by the applicant against the adverse remarks for the aforesaid period. It is in the said background that the Tribunal proceeded to examine the Annual Confidential report of the applicant. W.P.(C) No.2477 of 2009 21 16. As per the impugned order, the grading of the applicant as 'average' during the period 27.1.2005 to 14.7.2005 having