Central Administrative Tribunal - Allahabad

(U/S 19 vs Union Of India. The Representation Of ... on 27 February, 2012

Reserved on 10.02.2012

CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD

(THIS THE 27th DAY OF_February_2012)

HONBLE MR. JUSTICE S. C. SHARMA, MEMBER (J)
HONBLE MS. JAYATI CHANDRA, MEMBER (A)

Original Application No. 184 OF 2011
(U/S 19,
Administrative Tribunal Act, 1985
)
Wajih Ahmad, aged about 52 years, son of Shri Hasen Ahmed presently posted as Additional S.P./Deputy Commandant, 43 Bn. P.A.C. Aligarh, District Aligarh.
Applicant
V R S U S
1. Union of India, through Secretary Ministry of Home Affairs, New Delhi.

2. Union Public Service Commission through its Chairman Hholpur House, Shahjahan Road, New Delhi  110069.

3. State of U. P. through Secretary (Home) Government of U.P. at Lucknow.

4. Shri Yogeshwar Singh, I.P.S. C/o Director General of Police, U.P.

..Respondents

Advocates for the applicants:- Sri T. S. Pandey

Advocate for the Respondents: Sri N. P. Shukla, R-1
Sri K. C. Sinha, R-2
Sri K. P. Singh, R-3
Sri Sunil, R-4.

O R D E R

DELIVERED BY; HONBLE MR. JUSTICE S. C. SHARMA, SR. MEMBER-J

Instant O.A. has been instituted for the following reliefs:-

a) Issue a writ, order or direction in the nature of certiorari quashing the order dated 2nd November, 2010 (Annexure No. A-2) with the further order and direction in the nature of Mandamus commanding the respondents to interpolate the name of the applicant in the select list dated 7th December, 2009 for promotion to the post of IPS Cadre of the applicant within the stipulate period of time whatever is prescribed by this Honble Tribunal with all consequential benefits.

b). Award cost to the applicant from the respondents.

c). Issue any other and further writ, order or direction which this Honble Tribunal deems fit and proper in the circumstances of the case but may have not pleaded by the applicant and is found just and appropriate to this Honble Tribunal be also passed in favour of the applicant against the respondents.

2. The pleadings of the parties may be summarized as follows:-

It has been alleged by the applicant that he was initially appointed as Deputy S. P. on 01st July, 1985 later on promoted to the senior scale of Deputy S. P. on 13th February, 1991, to the post of Additional S. P. on 03rd August, 1996 and further promoted on the post of Additional S.P. Grade-I in June, 2008. That presently the applicant posted as Deputy Commandant 43 Bn. P.A.C. Etah. The next promotion of the applicant is due on the post of IPS cadre which may be considered by virtue of Seniority-cum-Suitability by means of Selection Committee (DPC) by UPSC. That applicant being senior most candidate and in the seniority list of 1982 Batch the name of the applicant was recommended by the State Government vide letter dated 15th September, 2009 along-with 38 eligible candidates against existing 13 vacancies of IPS cadre pertaining to the year 2008 and 14 vacancies pertaining to the year 2009 before the respondent No.2 in order to convene a D.P.C. for selection/promotion on the post of IPS Cadre, in the said list the name of the applicant appeared at Sl. No. 17 for the vacancies of the year 2008 and at Sl. No.4 for the vacancies of the year 2009. That, the norms for consideration of a candidate for promotion to the post of IPS is also mentioned in the O.A. That a letter was received by the applicant on 03rd January, 2008 under the
R.T.I. Act
2005 from the office of respondent No.2 which has been written by a dissenting member of the DPC (SCM) namely Dr. Ish Kumar, Deputy Director General, NCB, New Delhi by which he has highlighted the irregularities which are being normally committed by the Commission itself. The entire facts of the letter of Sri Ish Kumar has been narrated and inspite of highlighted by one member of the DPC respondent Nos. 01 and 02 did not initiate any action to rectify the irregularity pointed out by him. That the applicants A.C.R. of last 5 years are of outstanding/Very good category and even no adverse remark or censure has been mentioned in the ACR till the DPC met on 16th October, 2009 meaning thereby he is the most fit candidate for inclusion in the select list of IPS Cadre. It was mentioned by the Home Secretarys letter dated 15th September, 2009 that minor penalty dated 15th November, 2007 awarded to him, has already been quashed by the Tribunal in case No. 1717 of 2007 and there was no other remarks are in existence at the time of holding the DPC, but surprisingly the applicant has not been declared fit to be promoted to the IPS Cadre and the reasons best known to the members of the selection committee. Being aggrieved applicant asked for and was supplied the grading of the DPC by their letter dated 29th June, 2010 in the letter it was mentioned that the applicant was assessed unfit for the year 2008 and 2009 also which is at Sl. No.17 and 4 respectively, but no reason whatsoever has been mentioned, whereas, rules provides otherwise, as per rules if these penalties exist at the time of holding the DPC then the candidate may be declared unfit and if these penalties are not existing in the year of DPC then they must be considered for promotion, but arbitrarily the applicant has been excluded from the select list without having any such penalties in his ACRs inspite of the fact that there was no adverse entry in the ACRs at the time of DPC held on 16th October, 2009 and detailed reasons has also not been given for non-selection. That the ACR of the applicant of last 5 years is Outstanding /Very Good at the time of holding of DPC which can be perused by the Tribunal by summoning the same from the respondents department. After declaration of the panel/select list dated 07th December, 2009 against 27 vacancies, only 21 candidates have been promoted to the post of IPS Cadre and still 6 vacancies are lying vacant. From all the circumstances it can be ascertain and evident that the selection committee/DPC acted arbitrarily and did not consider the case of the applicant for promotion as per rules of promotion. The Honble Apex Court in number of cases held that if there is no adverse remark exists in the ACR of the candidates then he should be considered fit and if the DPC declares him unfit then the candidates should be informed prior to holding the DPC. Besides irregularities/infirmities there is discrimination in the case of the applicant. The respondent No.4 who is most junior to the applicant and having adverse remark although these adverse remarks were challenged by him before the Tribunal and which have been quashed by the Tribunal against which a writ petition was filed by the respondents before the Honble High Court and the Honble High Court stayed the implementation of the order passed by the Tribunal. Respondent No.4 has only one Outstanding ACR and only one Very Good, one Satisfactory and two adverse (2001-02, 2003-04), but he has been selected whereas, the applicant despite of having four Outstanding ACRs and no adverse entries has been made, but his case has been rejected and this shows a clear cut discrimination and arbitrariness on the part of the members of the DPC. A representation was submitted by the applicant highlighting the irregularities and request was also made for considering the candidature of the applicant by means of review DPC. As per judgment of the Honble Supreme Court different yardstick/norms cannot be adopted in the selection of different persons and the present case is squarely covered by this judgment of Honble Apex Court held in the A. K. Narula Vs. Union of India. The representation of the applicant was rejected on technical and flimsy grounds. The respondent No.1 ought to have advised the UPSC to review the case of the applicant, but he did not do so maliciously, arbitrarily and illegally. A case was filed before the Honble High Court, but it was disposed of by the Honble High Court with direction to approach the Tribunal. That as junior to the applicant Sri Jogeshwar Singh respondent No.4 was promoted arbitrarily, whereas applicant was not considered, hence the O.A..

3. All the Respondents filed their Separate Counter Reply and denied from the allegations made in the O.A.

4. Respondent No.1 Union of India in its Counter Reply alleged that the appointment from the State Police Service to the I.P.S. is solely governed by and made under the provisions of the I.P.S. (Appointment by Promotion) Regulations, 1955, as amended from time to time. The promotion regulations envisages distinct roles in respect of the State Government, the UPSC and the Central Government, with specific mandates in the process of preparation of the select list of State Police Service Officers for promotion to IPS cadre, right from the stage of drawing the list of eligible officers by the State Government of finally making appointments to the service from the select list by the Central Government. Whereas, the State Government has the exclusive role in regard to drawing of the consideration zone of the eligible State Police Service Officers to be placed before the Selection Committee in terms of seniority of these officers in the State Police Service, the UPSC is wholly concerned with reference to the select list prepared and approved under regulation 7(3) on the basis of the grading made by the Selection Committee and with the aid of observations of the State and Central Government. The Central Government on the other hand is the authority concerned in making appointment from the select list on the recommendations of the State Government in the order in which the names of the members of the State Police Service appear in the select list being in force during its validity period. The State Government being sole custodian of service record of State Police Officers, is required to furnish a proposal to convene a meeting of the Selection Committee/Review Committee, along-with a list of eligible State Police Service Officers and their service record, integrity certificates etc. and direct to the UPSC for consideration of eligible State Police Service Officer for their inclusion in the select list for their subsequent appointment by promotion to the IPS. The Commission scrutinizes the said proposal/record and fixed the meeting of the Selection Committee/Review Committee. The Central Government nominates its nominees on the Selection Committee as and when the Commission fixes the meeting. The list prepared by the Selection Committee/Review Committee is finally approved by the UPSC and forms the Select List finally and specifically in terms of the regulation 9(1) of the IPS (Appointment by Promotion) Regulation, 1955 as they stand applicable to the present case. The State Police Service who are included unconditionally in the Select List approved by the UPSC is made by the Central Government on the recommendations of the State Government in the order in which their names appears in the select list for the time being in force during the period when the select list remains in force, and from all these procedure it is evident that the part played by the Union of India in the process of preparation and finalization of the select list is very minimal and the subject matter of the present O.A. is primarily concerns the State Government and the UPSC. As such it is for the State Government and the UPSC to make detailed submission. The procedure is provided in regulation meant for IPS (Appointment by Promotion) Regulation 1955 has also been mentioned in detailed it is not necessary to repeat the same thing at this stage. It has further been alleged that the meeting of the selection committee constituted under regulation 3 of the IPS (Appointment by Promotion) Regulations, 1955 for preparation of the year-wise Select List of 2008 and 2009 for appointment to the IPS by promotion from Utter Pradesh Police Service was held on 16th October, 2009. The number of vacancies for the year-wise Select Lists were determined to be 13 and 14 respectively. As such the zone of consideration ought to comprise of 39 and 42 names respectively. The name of the applicant was there in the zones at Sl. No. 17 and 4 respectively, however, his name was not recommended by the Selection Committee due to assignment of a grading to him which rendered him unsuitable for appointment to the IPS by promotion. That after approval of the UPSC to the recommendations of the Selection Committee, the Central Government notified the year-wise select lists of 2008 and 2009 through notification dated 07th December, 2009. All the officers included in those Select Lists unconditionally were appointed. It has also specifically alleged that the Central Government cannot command on the Selection Committee since it is convened by the UPSC and whatsoever has been alleged in the O.A. is false or concerned with respondent No.2.

5. Respondent No.2 also filed separate Counter Reply and it has been alleged that the UPSC discharge their functions and duties assigned to them under
Article 320
of the Constitution and by virtue of the provision in the
All India Services Act, 1951
, separate Recruitment Rules have been framed for the IAS, IPS and IFoS. In pursuance of these Rules, the IPS (Appointment by Promotion) Regulation, 1955 have been framed. In accordance with the provisions of the said regulations, the Selection Committee, presided over by the Chairman/Member of the UPSC, makes selection of State Police Service officers for appointment by promotion to the IPS based on the proposal and record sent by the concerned State Government. The detailed procedure has also been provided in the Counter Affidavit. It is further alleged that the Selection Committee in the present matter held a meeting on 16th October, 2009 to prepare the select list of 2008 and 2009 and in the select list very high ranked and responsible officers are included. That the selection committee constituted in accordance with the Promotion Regulations follows a uniform and consistent practice in the matter of induction to the All India Service, enumerated in para 2.1 and 2.5. It examines the service records of each of the eligible officers, with special reference to the performance of the officers during the last five years preceding the year of select list, deliberating on the quality of the officer as indicated in the various columns recorded by the reporting/reviewing officer/accepting authority in the ACRs for different years and then after a detailed mutual deliberation and equitous discussion finally arrives at a classification assigned to each officer. The selection committee also reviews and determines the overall grading recorded in the CRs to ensure that the overall grading in the CRs in not inconsistent with the grading/remarks under various specific parameters. The commission has framed certain guidelines which are uniformly applicable to all States and Cadres. The selection committee after perusal of the service record of the officers decided that whether a particular officer is Outstanding merit possessing exceptional attributes and abilities and these characteristics are reflected in at least four of the ACRs for the last five years including the ACR of last year. Very Good is also clarified by the Committee that after considering the ACRs that whether officer has done highly meritorious work and possess positive attributes and these characteristics are reflected in at least four of the last five ACRs. In the present case the selection committee undertakes the detailed exercise with a view to ensure fairness and objectivity, in the selections. However, it is solely the domain of the selection committee manned and presided over by the competent and able members to devise norms and yardstick for evolution of the ACRs. The selection committee is, as per regulations, presided over by Chairman or a Member of the UPSC. The overall assessment of the applicant awarded by the selection committee in the meeting held on 16th October, 2009 are as follows:-

SELECT LIST 2008

Period
Overall Assessment
2002-03
2003-04
2004-05
2005-06
2006-07

Average
Average
Good
Very Good
Good
Unfit

SELECT LIST 2009
Period
Overall Assessment
2003-04
2004-05
2005-06
2006-07
2007-08

Average
Good
Very Good
Good
Very Good
Unfit

6. Honble Supreme Court also laid down certain guidelines in this connection and the judgments of the Honble Suprme Courts were also considered. Further alleged that so far as the respondents 4 Sri Yaswant Singh is concerned, the selection committee graded Sri Yashwatn Singh as Very Good based on the record furnished by the State Government. The State Government was not communicated any adverse remark in respect of Sri Yogeshwar Singh and in view of the judicial pronouncements of the Honble Supreme Court it is settled that the Selection Committee is vested with right to arrived at a decision on the basis of the assessment of the ACRs and the Courts do not act as an appellate authority over the assessment made by the Committee, but only look into the decision making process followed by the committee and ensure that whether all legal procedures and safeguards have been followed or not. It is wrong to allege that selection committee illegally promoted the private respondent with a view to downgrade the applicant without looking into the service records. That the O.A. lacks merits and liable to be dismissed.

7. Respondents No.3 the state of U.P. in its separate Counter Affidavit alleged that the proposal for promotion in IPS cadre for the year 2008 & 2009 was sent to the UPSC, New Delhi, vide letter dated 25th June, 2009. The name of the applicant appeared at Sl. No.17 in the eligibility list for the year 2008 and the select committee meeting was held at UPSC, New Delhi on 16th October, 2009 and consequent on thorough scrutiny of service records of all eligible officers UPSC finally selected the officers for promotion in IPS Cadre and notification of selected officers was issued by the Govt. of India vide letter dated 07th December, 2009. The applicants name does not find place in the said notification, as such, the applicant was not found fit for promotion to the IPS cadre by the selection committee either in the year 2008 or 2009. There were 13 vacancies in the year 2008 and 14 vacancies in the year 2009 total 27 vacancies of State Police Officers in the promotion quota of IPS cadre had occurred. The relevant proposal/information with regard to preparation of select list of 2008 and select list of 2009 were sent by the State Govt. to the UPSC and Govt. of India for the preparation of select list of the year 2008 and select list of 2009 as per the provisions contained in All India Services (Promotion by Selection) Rule-1955, a meeting of the selection committee was held in UPSC on 16th October, 2009. Consequently, in view of the recommendations of selection committee, a notification of Govt. of India dated 07th December, 2009 was issued regarding promotion of 21 State Police Officers in IPS Cadre. The name of the applicant was included in the eligibility list of select list of 2008 and select list of 2009 and due attention was paid to the service records by the selection committee, but he was not recommended for promotion to the IPS Cadre by the selection committee. Earlier O.A. was also filed by the applicant and the O.A. was decided with direction to the respondents to decide the pending representation of the applicant by a reasoned and speaking order. That the decision regarding selection of the applicant in IPS cadre has been taken by the UPSC as well as by the Govt. of India after following the relevant rules. In view of the ACR of the applicant for the year 2003-04 is Satisfactory whereas, ACR for the year 2006-07 for the period for 09th August, 2006 to 05th November, 2006 is of Good category. In the case of the applicant Honble High Court quashed the order of the Tribunal and directed the State to pass fresh orders and in pursuance of the order of the Honble High Court the State Govt. has passed fresh orders by means of office order dated 11th August, 2011. That the O.A. lacks merits and liable to be dismissed.

8. Separate Counter Affidavit has also been filed on behalf of the Private respondent No.4 and it has been alleged that as per rules after completion of satisfactory service the respondent No.3 has forwarded the candidature of the answering respondents as well as other candidates including the name of the applicant who were found eligible to the UPSC for the purpose of appointment in the IPS cadre. That the candidature of the applicant as well as the answering respondent and several other were assessed by the selection committee constituted by the UPSC which was convened on 16th October, 2009 and recommended the candidature of the answering respondent for IPS cadre for the vacancies of the year 2009, but the name of the applicant was not recommended by the selection committee either against the vacancies for the year 2008-09 and he was found unfit. It appears that applicant being aggrieved for non-inclusion of the name of the applicant in the list of selection committee candidates by the UPSC and as representation was also rejected vide order dated 02nd November, 2010, hence O.A. has been instituted for this reason. This respondent also supported the contention of the respondent Nos. 01 and 03 regarding the manner of selection and it is further alleged that merit is the sole criteria for appointment on the post of IPS cadre and seniority has got no role to play. The promotion to the IPS has been made by the UPSC after assigning merits of each candidate. As regard adverse entries against the respondents as referred in the O.A. it is alleged that the adverse entries were for the period of 24th March, 2001 to 17th October, 2001 and during this period the integrity of the applicant was certified and the adverse comments were advisory in nature. The reviewing authority found the work of the respondent satisfactory for the period of 29th October, 2001 to 12th May, 2002 and the integrity was also certified. That the reviewing authority did not agree with the adverse comments of the reporting authority. Moreover, the adverse material against the respondent was only for a period of four months and that too was advisory in nature. That the endorsement of the accepting authority was for the period 31st July, 2001 to 31st March, 2002. There was no adverse entry/material against the respondent which could come in the way of the appointment of the respondent as IPS officer. The punishment of censure was set aside by the respondent No.3 vide order dated 29th July, 2009. Moreover, it is settled legal position that simple warning cannot adversely affect the selection of the respondents. And all the entries of each candidate were within the knowledge of UPSC and after visualizing each entries the merit of each of candidates was assessed by the UPSC and the answering respondents was graded Very Good and it is settled law that no judicial interference in the proceedings of the selection committee is permissible in the eye of law and the entries of 2003-04 was set aside by the respondent No.3 vide order dated 02nd November, 2010. In pursuance of the order dated 02nd November, 2010 vide order dated 16th November, 2010 the adverse entry for the period 2003-2004 were expunged. The selection committee is not debarred from making its own assessment specifically that the adverse material of the respondent was only for very short span of time. In view of the procedure the selection committee will give its own grading on the basis of overall assessment of the records, taking into the consideration of the substance of the true nature of the adverse remarks and performance. No specific rule has been quoted by the applicant which has been violated by the selection committee. Moreover, the Honble Apex Court has consistently held that unless there is strong case for applying the law of Wednesbury or there is element of mala-fide the Courts or Tribunals will not interfere with the assessment made by the selection committee. That as the applicants was not found fit by the selection committee hence it cannot affect the selection of the respondents. The allegations made against the respondents in the O.A. are uncalled for. That the O.A. lacks merits and liable to be dismissed.

9. In response to the Counter Reply of the respondents on behalf of the applicant Rejoinder Affidavit has also been filed and in the Rejoinder Affidavit applicant reiterated the facts which have been alleged in the O.A. It has further been alleged that the selection committee constituted by the UPSC did not follow the exercise enumerated either in the rules or in the guidelines as well as discrimination has been done with the applicant. That the judgments of the Honble Supreme Court are in favour of the applicant.

10. We have heard Sri T. S. Pandey, Advocate for the applicant and Sri N. P. Shukla, Advocate for respondent No.1, Sri K. P. Singh, Advocate for respondent No.3, Sri Sunil, Advocate for respondents 2 holding brief of Sri K. C. Sinha, Advocate for respondent No.4. We have also perused the entire facts of the case as well as the material available on record.

11. It has been alleged by the applicant that the he was the senior most candidates in the seniority list of the year 1982 batch. And the name of the applicant was recommended by the Sate Govt. vide letter dated 15th September, 2009 along-with 38 eligible candidates against the existing 13 vacancies of IPS cadre pertaining to the year 2008 and 14 vacancies pertaining to the year 2009 before the respondent/UPSC for conducting the selection committee meeting for promotion to the post of IPS cadre. In the list the name of the applicant appeared at Sl. No. 17 for the vacancies of the year 2008 and at Sl. No.4 for the vacancies of the year 2009. That as per rules an officer attaining at least four benchmark out of 5 ACRs is to be promoted in view of the O.M. issued by the Ministry of DOP&T dated 08th September, 1998 and 16th June, 2000 such an officer is to be assessed fit for promotion. It has further been alleged by the applicant that the ACRs of last five years were outstanding/Very good and there was no adverse remarks or censure recorded in the ACR of the applicant till the DPC met on 16th October, 2009 and applicants name ought to have been included in the select list being most fit candidate to the IPS Cadre. That one minor penalty was awarded as was communicated by the Secretary, Home Affairs and for quashing that adverse entry he filed an O.A. No.1717 of 2007 and the O.A. was allowed and the adverse entry was expunged, but the applicant was declared unfit for promotion to the post of IPS Cadre for the reasons best known to the selection committee. That the applicant enquired from the respondents for furnishing the grading of the DPC and the applicant was informed that the DPC assessed him unfit for the year 2008-09, but the candidates are to be considered unfit by the DPC if the penalties are existing at the time of holding the DPC, but the entries were of minor nature and were expunged, hence applicants name ought to have been considered, but the applicants name was not considered impartially and there had been discrimination with the applicant. Respondent No.4 has only one outstanding ACR and only one Very Good, one Satisfactory and two adverse (2001-02, 2003-04), but he has been selected, whereas, the applicant despite of having Outstanding ACRs and no adverse remarks, but his case has been rejected on this ground and there had been favoritism shown by the respondents in giving promotion to the respondent No.4. It has been alleged by the respondents that considering the entries of the applicant he was not found fit by the DPC.

12. From perusal of the pleadings of the respondents it is evident that the main functionary in the matter of promotion of State Cadre Police Officer to the rank of IPS is the UPSC and Union of India/respondent No.1 and State of U.P./respondent No.3 dont have the main role to play. Respondent No.2also alleged that UPSC discharged their duties and functions assigned to them under
Article 320
of the Constitution of India. Further, by virtue of the provisions in the
All India Services Act, 1951
, separate Recruitment rules have been framed for IAS/IPS/IFoS. And in pursuance of these rules, the IPS (Appointment by Promotion) Regulation 1955 have been framed and in accordance with the provisions of regulation 1955 selection committee is to be presided over by the Chairman/Member of the UPSC and the selection is being made of the State Police Service Officers for appointment by promotion to the IPS Post on the proposal sent by the concerned State Govt.. The Govt. of India determines the numbers of vacancies against which the selection is to be made for a particular recruitment year and thereafter, State Govt. forward a proposal to the Commission along-with seniority list and after received from the State Govt. the lists are to be scrutinized by the commission for completeness and after the deficiencies have been resolved and reconciled, a meeting of the selection committee is convened for preparing the select list for promotion to the post of IPS. That as per provisions of Regulation 5(4) of the Promotion Regulation, the aforesaid Committee duly classifies the eligible State Police Service officers included in the zone of consideration as Outstanding, Very Good Good or Unfit as the case may be, on an overall relative assessment of their service records and, thereafter, in view of provisions of regulation 5(5) of the said regulation the Selection Committee prepares a list by including the required number of name first from the officer 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 within each category is maintained in the order of their respective inter-se-seniority in the State Police Service. That merit is the main criteria for making promotion to the IPS cadre and seniority is the secondary criteria and it is only to be considered when two officers are of the same grading and it is to be decided on the basis of seniority and independent assessment is to be made of the eligible officers as per guidelines/procedures for inclusion in the State Police Service Officers. It will be relevant to peruse relevant provisions regarding promotion of the State Police Officer to the cadre of IPS as per regulation 1955 under regulation 3 a committee is to be formed for making selection of the eligible officers of the State Cadre for promotion to the IPS and who will be Members of the DPC have been stated in regulation 3 the constitution of the DPC has not been challenged on behalf of applicant. In view of regulation 5 a list is to be prepared of the suitable officers and it will be appropriate to reproduce regulation 5(4) and 5(5) in order to ascertain the procedure to be adopted by the selection committee while considering the names of the suitable candidates for promotion to the post of IPS cadre it is as follows:-

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.

5(5). The list shall be prepared by including the required number of names, first from the officers finally classified as Outstanding, then from among those similarly classified as Very Good and thereafter, from amongst those classified as Good and the order of names inter-se within each category shall be in the order of their seniority in the State Police Service.

Provided that the name of any officer so included in the list shall be treated as provisional of the State Government, withholds the integrity certificate in respect of such officer of any proceedings are contemplated or pending against him or anything adverse against him has come to the notice of the State Government.

13. We have perused the Counter Affidavit filed on behalf of respondent No.2 in order to infer that in view of regulation 5(4) the selection committee shall classify the eligible State Police Officer, although it has been argued by the learned counsel for the applicant and alleged by the applicant in the O.A. that the applicants ACR for the last five years were of Outstanding/Very Good category and even no adverse remarks or censure has been mentioned in the ACR till the DPC met on 16th October, 2009, but it has been alleged by the respondents that the Selection Committee in its meeting on 16th October, 2009 considered the list of the officers submitted by the State Govt. along-with ACRs in order to classify the officers. Undisputedly, 13-14 vacancies were notified by the Govt. of India for promotion of the State Police Officers to the rank of IPS in the year 2008-09 respectively. Undisputedly, the name of the applicant appeared at Sl. No. 17 and 4 in the eligibility list of 2008-09 respectively and overall assessment of the service record of the applicant was made and the selection committee assessed the applicant as Unfit for both the years and as such his name could not be included in the select list. It has also been alleged by the respondent No.2 that the selection committee constituted in accordance with the Promotion Regulations follows a uniform and consistent practice in the matter of induction to the All India Service. The service records of different officers of last 5 years was considered and the officers were as per regulation classified as Outstanding/Very Good/Good/Unfit on considering the ACRs of different years, however, it has also been alleged by the respondents that it is an admission of the selection committee presided over by the competent and able members to devise norms and yardstick for evolution of the ACRs. The selection committee is, as per regulations, presided over by Chairman or a Member of the UPSC. The overall assessment of the applicant according to A.C.R. awarded by the selection committee in the meeting held on 16th October, 2009 are as follows:-

SELECT LIST 2008

Period
Overall Assessment
2002-03
2003-04
2004-05
2005-06
2006-07

Average
Average
Good
Very Good
Good
Unfit

SELECT LIST 2009
Period
Overall Assessment
2003-04
2004-05
2005-06
2006-07
2007-08

Average
Good
Very Good
Good
Very Good
Unfit

14. From perusal of the above select committee list relating to the applicant it is evident that by selection committee list was prepared for the year 2008-09 and the ACRs of five preceding years were considered and it commenced from the year 2002-03 upto 2006-07. In the year 2002-03 and 2003-04 applicant was assessed in the ACR as Average in the year 2004-05 applicant was assessed as Good, in the year 2005-06 applicant was assessed Very Good and in the year 2006-07 applicant was assessed as Good and the applicant was assessed overall as Unfit officer for promotion to the post of IPS Cadre. The applicant himself alleged in para 4.5 of the O.A. that the procedure to be conducted by selection committee in assessing the eligibility of the officers and the norms for consideration of the candidates for promotion has been stated as below:-

The Commission, in exercise of their constitutional functions as envisaged in
Article 320
of the Constitution took a conscious decision that an officer attaining at least four benchmark grading out of five ACRs. As prescribed by the Govt. of India in Department of Personnel and Training OM No.22011/9/98-Estt. (D) dated 08.09.1998, read with subsequent OM of even number dated 16.06.2000, should be assessed as fit for promotion and this decision is applicable to all DPCs pertaining to the vacancy year 2003-04 and subsequent years.

15. Hence in view of the above mentioned norms for promotion of the State Police Officer to the rank of IPS it is essential that there must be at least four benchmarks out of five ACRs and from perusal of the ACR of the applicant it is evident that there were two Good entries and one Very Good entry whereas, there were two Average entries for the year 2002-03 and 2003-04. Under these circumstances it can be said that the applicant failed to achieve four benchmarks which requires according to the applicant himself. We have also perused Character Role entries of the applicant as produced by the respondents and also the record regarding selection of the applicant by the respondents and from perusal of the record it is evident that for the selection in the year 2008-09 there were three Good and one Very Good and at the same time two Average entries were recorded in the Character Role of the applicant. We have also perused the entries considered by the DPC for preparing select list for the year 2009 and according to these entries there was one Average two Very Good and Two Good entries were recorded, but even then applicant was assessed as Unfit while preparing the list for selection against the vacancy of the year 2008 and it can be said that in the year 2008 the applicant was not found fit for promotion to the cadre of IPS, but learned counsel for the applicant argued that during the year 2009 there was only one Average entry in the ACR of the applicant and there was no reason to categorize the applicant as Unfit and it may be said that there were two Good and two Very Good and under these circumstances applicant ought to have been categorized and classified as Fit as per regulation 5(4) on the basis of perusal of ACR of the concerned officer. The officers are to be categorized and classifies in four categories first category is Outstanding and it has been stated by the respondents in the Counter Affidavit that the service records of the officer reflect that he is of outstanding merit possessing exceptional attributes and abilities and these characteristic are reflected in at least four ACRs out of five including the ACR of last year (i.e. upto the preceding year for which the Select List is prepared) provided is graded at least Good in the ACR of remaining year/s. It cannot be said that the applicant ought to have been ranked and classified as outstanding officer.

16. It has been argued by the learned counsel for the applicant that the respondents while preparing the list of the eligible candidates assessed officers according to the norms and practice and while considering and classifying officers as Very Good the ACR of the officer must reflect that the officer has done highly meritorious work and possess positive attributes and these characteristics are reflected in at least four of the last five ACRs (i.e. upto the preceding year for which the select list is prepared) provided is graded at least Good in the ACR of the remaining year and rest of the entries cannot be said as Very Good and he cannot be classified as Very Good officers. We have also perused the ACRs of the applicant and it cannot be said that the applicant ought to have been categorized as outstanding/very good officer. There is also third category in order to assess the officer and in this category officer must be Good and it must be reflected that the officers performance is generally Good and he is considered fit for promotion, but applicant has not been categorized in any of the above categorize then he was categorized as Unfit.

17. It has also been argued by the learned counsel for the applicant that a letter was received from Home Secretary on dated 15th September, 2009 that one minor penalty dated 15th November, 2007 was awarded to the applicant, but it has been argued by the learned counsel for the applicant that this minor penalty entry was expunged by this Tribunal in O.A. No. 1717 of 2007 and there was no adverse remark existing in the ACR of the applicant at the time of holding the DPC. We have perused the ACRs of the applicant considered in the for the year 2008 and we can say that during that year applicant was ranked as Unfit and it cannot be said that this assessment of DPC was against the norms and in the selection for the year 2009 although, selection committee found the officer as Unfit whereas, there were two Good an two Very Good entries were recorded in the ACR and there was one Average, but in accordance with overall assessment of the applicant the officer was found Unfit, because there was one Average, but there was nothing extraordinary in the ACR of the applicant.

18. It has been argued by the learned counsel for the respondents that the assessment made by the selection committee cannot be interfered by the Tribunal and in support of his argument learned counsel for respondent sited judgment of the Honble Supreme Court reported in (
1996) 2 SCC 488 Smt. Nutan Arvind Vs. Union of India and another
it has been held that where high level committee had considered the eligibility of the respective candidates and considered their case for promotion then the Court cannot sit over the assessment made by the appellate authority.

Learned counsel for the respondents also placed reliance on the judgment of the Honble Supreme Court reported in
AIR 1990 SC 434 Dalpat Abasaheb Solunke and Ors. Vs. Dr. B.S.
mahajan and ors. It has been held by the Honble Supreme Court that it is needless to emphasize that it is not the function of Court to hear appears over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates.
Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. Learned counsel for the respondents also cited a judgment of the Honble Supreme Court reported in (2008) 2 SCC 119 M. V. Thimaiah and Ors. Vs. Union Public Service Commission and Ors. Civl Appeal Nos. 5883-91 of 2007. it has been held by that the recommendation of the selection committee cannot be challenged except on the ground of mala-fide or serious violation of statutory rules, the courts cannot sit as an appellate authority to examine the recommendation of the selection committee like court of appeal. The discretion has been given to the selection committee only and the courts rarely sits in the Court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidates and record its opinion. Hence on the basis of this judgment it has been argued by the learned counsel for the respondents that this Tribunal cannot sit as appellate court on the judgment of the selection committee unless there is violation of statutory rules.

19. Learned counsel for the applicant cited an order of the C.A.T., Allahabad Bench, Allahabad delivered in O.A. No.371 of 2004 and other connected O.As. and this O.A. was decided on 05th May, 2009 and it has been held in this judgment:-

47. It can not also be said that the principles of natural justice required the selection committee to record reasons for the super-cession of the officers to enable them to make representation against their super-cession. If during the process of selection a senior officer is proposed to be superseded by virtue of not being included in the select list and if opportunity is afforded to him to make representation and only thereafter the list is finalized, the process could be cumbersome and time consuming. On the other hand it will be difficult for the committee to prepare and finalize the select list within a reasonable period of and the very purpose of preparing the select list would be defeated since the Scheme of I.P.S. (Appointment by Promotion) Regulation 1955 clearly warrants the exclusion of principles of audi-alteram-partem.

From perusal of the order of the Tribunal it is evident that the selection committee to record reasons for the super-cession of the officers to enable them to make representation against their super-cession and learned counsel for the applicant in this connection argued that although, applicant has been superseded, but no reasons has been given by the selection committee in superseding that as to why the applicant has been superseded, but we are of the opinion that it is a fact that detailed reasoning have not been given by the selection committee in superseding the applicant, but it is evident from perusal of regulation framed by the Govt. of India for promotion to the I.P.S. cadre and in regulation 5(4) it has been provided that the selection committee shall classify the eligible Officers as Outstanding, Very Good, Good or Unfit, as the case may be and in the present case following this regulation selection committee classifies the applicant as Unfit officer after perusing the service records of the applicant and in view of the above judgment of the Honble Supreme Court this Tribunal cannot sit as an appellate authority over the decision of the selection committee. Moreover, in this judgment of the C.A.T., Allahabad Bench, Allahabad, reliance has been placed on the judgment of the Honble Supreme Court and the Tribunal arrived at the conclusion that Courts/Tribunals are not expected to play the role of an appellate authority or an umpire in the acts and proceedings of the D.P.C. and certainly sit in judgment over the selection made by the DPC unless the selection is vitiated by the malafide or on the ground of arbitrariness. Similarly the Tribunal cannot assume the power to judge the comparative merits of the condition and consider the fitness or suitability for appointment. Nor it is the function of the courts to hear appeals over the decisions of the selection committee and to scrutinize the relative merits of the candidates. In view of the judgment of the Honble Supreme Court Tribunal has got very limited role to play in the matter of selection and Court will have to examine that whether there is any arbitrariness in the selection.

20. Leaned counsel for the applicant also cited the judgment of the Honble Supreme Court in the case of
Dev Dutta Vs. Union of India
and it is a landmark judgment regarding communication of the entries and it has been held by the Honble Apex Court as under:-

48. We, therefore, direct that the good entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter, If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant get selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment.

But, how at this stage applicant is entitled for the benefits of above mentioned judgment of the Honble Apex Court, because earlier Average entries were recorded in the Character Role of the applicant in year 2002-03 and 2003-04 and the last entries which was considered by the DPC for the selection of the year 2009 and of the year 2007-08, whereas, the judgment of the Honble Supreme Court was delivered on 12th May, 2008 and there was one minor penalty awarded against the applicant and in order to challenge that minor penalty applicant filed O.A. and the O.A. was allowed and the minor penalty was quashed and expunged and there is no mention of this fact in the in the finding of the selection committee that still the minor penalty punishment is existing in the Character Role of the applicant. The ACR of the applicant of the previous years were considered, hence it cannot be said that selection committee has wrongly categorized the applicant as Unfit. The entries of the applicant of the ACR of the applicant were not of Outstanding merit and moreover, the selection is to be made first from the officer finally classified as Outstanding, then from amongst those similarly classified as Very Good and thereafter from amongst those similarly classified as Good. Much has been argued regarding the seniority of the applicant, but in the matter of selection for promotion to the post of IPS cadre the seniority has got the secondary role to play and the first role is of the merits and the officers is to be categorized as per the norms of the regulation, 1995.

21. It has also been argued by the learned counsel for the applicant that in earlier years there had been complaint against the UPSC for irregularities and in this connection learned counsel for the applicant argued that under
R.T.I. Act
a copy of the letter dated 03rd January, 2008 was obtained by the applicant from the office of the respondent No.2 and it was written by a dissenting member of the DPC (SCM) namely Dr. Ish Kumar, Deputy Director General, NCB, New Delhi. And learned counsel for the applicant argued that in the letter Dr. Ish Kumar, Deputy Director General, highlighted the irregularities which are being normally committed in the matter of DPC by the Commission itself. The contents of the letter has been alleged in para 4.6 of the O.A. it has been alleged in the letter that Member concerned objected to the selection of Mr. A. K. Tandon despite the currency of a punishment and secondly he has objected in para 3 of his letter that the officers were rated as Very Good or Good, if they had a minimum of three Very Good or three Good during the last 5 years even if somebody had an adverse or average in the remaining two years then he has to be considered. The Members also highlighted that the Members were asked to scrutinize only one ACR of last year (2004-05) and ACR grading of 4 earlier years were adopted as such for maintaining the consistency. All the Members were divided and the ACRs assessment made by one Member was adopted by all other Members. It may be a fact that one of the Members of the Selection Committee dissented from the decision of the Committee, but it cannot be said that it may accepted that in all the meeting of the selection committee such types of irregularities are to be committed by the commission and it cannot be taken and accepted as gospel truth. Learned counsel for the applicant trying to persuade us that in view of the letter Dr. Ish Kumar, Deputy Director General, NCB, New Delhi highlighted the irregularities which are being normally committed in the matter of DPC by the Commission itself. and it has been alleged in the letter that Member concerned objected to the selection of Mr. A. K. Tandon despite the currency of a punishment and secondly he has objected in para 3 of his letter that the officers were rated as Very Good or Good, if they had a minimum of three Very Good or three Good during the last 5 years even if somebody had an adverse or average then he may be classified as Unfit it is the assessment of the selection committee and in view of the judgment of the Honble Supreme Court we cannot interfere in the discretion of the selection committee and we cannot sit as an appellate authority. But this letter of one of the Member of previous selection committee is relevant that whether different yardsticks were adopted in the selection of candidate viz-viz other candidates by same D.P.C. which considered the case of respondent No.4 viz-a-viz applicant.

22. In this connection learned counsel for the applicant cited the case of the respondent No.4 and it has been demonstrated before us that the Members of the selection committee has shown favouritism to one of the candidate being relation with political high-ups of the State and with the former D.G.P. of the State and different yardsticks have been adopted in the promotion of respondent No.4. It has been alleged by the applicant that respondent No.4 has adverse remarks in his Character Role and the adverse remark was challenged before the Tribunal and the Tribunal quashed the adverse remark and the order passed by the Tribunal was challenged by the respondent in writ petition No. 1218 of 2009 before the Honble High Court of Lucknow, Bench and the Honble High Court stayed the order of the Tribunal passed in the O.A. filed by the respondent No.4, but even then the respondent No.4 was classified as Fit, and the adverse remarks stand recorded in the Character Role of the respondent No.4 were overlooked and he was selected for the post of I.P.S.. It has further been alleged that the Respondent No.4 has only one Outstanding ACR and only one Very Good, one Satisfactory and two adverse (2001-02, 2003-04), but he has been selected whereas, the applicant despite having four Good and Very Good ACRs and no adverse, but his case has been rejected and it is the glairing discrimination and arbitrariness of the selection committee and no reason whatsoever has been disclosed by the respondents for selection of respondent No.4 and rejection of the applicant. In view of the judgment of the Honble Supreme Court the selection can be said nullity only on the ground of mala-fide or arbitrariness. It has been alleged by the respondent No.2 in his Counter Affidavit that respondent No.4 Sri Yogeshwar Singh has been graded as Very Good based on the record furnished by the State Government and the State Govt. has not communicated any adverse remarks in respect of Sri Yogeshwar Singh and the selection committee in view of the judgment of Honble Apex Court arrived at the decision on the basis of assessment of the ACRs and the Courts cannot sit over the decision of the selection committee as an Appellate Authority. The respondent No.2 only tried to appreciate the case of respondent No.4 Sri Yogeshwar Singh on the ground that the respondent No.4 was assessed as Very Good based on the Character Role furnished by the State Govt. and no adverse remarks were communicated. In this connection the Character Role of the respondent No.4 is also most material to be considered.

23. It has been alleged by the respondent No.4 in the Counter Affidavit that the selection committee constituted by the UPSC was convened on 16th October, 2009 and recommended the candidature of the respondent No.4 for the I.P.S. Cadre for the vacancies of the year 2009, and the name of the respondent No.4 along-with other candidates have been reflected in the order dated 07th December, 2009 and in the year 2009 applicant being aggrieved that his candidature has not been recommended by the UPSC, challenged the candidature of the respondent No.4. It has also been alleged that merit is the sole criteria for promotion to the I.P.S. cadre and seniority has got no role to play, hence this contention of the applicant is unjustified that he was senior to the respondent No.4, it has also alleged by respondent No.4 that the adverse entry recorded in the Character Role of the respondent No.4 for a period from 24th March, 2001 to 17th October, 2001 and in that ACR the integrity of the respondent No.4 was certified and rest part of the adverse entry was advisory in nature, Moreover, the Reviewing Authority found the work of the respondent No.4 satisfactory for the period from 29th October, 2001 to 12th May, 2002 and the Reviewing Authority did not agree with the adverse remarks recorded by the reporting authority and the adverse remarks were only for a period of four months and that was advisory in the nature and there was no other adverse entry against the respondent. The punishment of censure was set asided by respondent No.3 vide order dated 29th July, 2009 and simple warning cannot adversely affect the selection of the respondent. And the entries of each candidate were within the knowledge of the UPSC. Moreover, in view of the judgments of the Honble Supreme Court the judicial interference in the process of the selection committee is not permissible in the eye of law. Further alleged that in pursuance of the order dated 02nd November, 2010 vide order dated 16th November, 2010 the adverse entry for the period 2003-2004 were expunged, but even then the selection committee is not debarred from making its own assessment specifically that adverse material of the deponent was only for a short span of time. Under these circumstances it is evident that the adverse entry incorporated in the Character Role for the year 2003-04 were expunged by respondent No.3 vide order dated 16th November, 2010, but the meeting of the selection committee was convened on 16th October, 2009 whereas the entries for the year 2003-04 were expunged vide order dated 16th November, 2010 as alleged in para No.20 of the Counter Affidavit of the respondent No.4. It means that adverse entry was existing in the year 2003-04 and at the time when the matter of selection of the respondent No.4 was considered on 16th October, 2009. It has specifically been alleged by respondent No.2 that no adverse material was available in the ACR of Sri Yogeshwar Singh and hence the selection committee assessed Sri Yogeshwar Singh as Very Good based on the records furnished by the State Govt. We have perused the Original Records produced by respondent No.2 regarding the selection of the applicant and respondent No.4 and in the selection list of the year 2009 the name of respondent No.4 appeared at Sl. No.14 and from perusal of the entries it is evident that since 2003-04 upto 2007-08 entries have been shown as Very Good whereas, respondent No.4 himself admitted that during the year 2003-04 there was adverse entry against the respondent No.4, but the same was expunged, under these circumstances it is not clear that as to how the entries in the Character Role of the Respondent No.4 of the year 2003-04 has been substituted as Very Good. It has not been clarified by the respondents that which entry was challenged by him before the Tribunal, Lucknow Bench and against which writ petition No.1218 of 2009 is pending before the Honble High Court, Lucknow Bench. It is a fact that implementation of the order passed by Tribunal has been stayed by Honble High Court, Lucknow Bench and till the matter remained subjudice before the Honble High Court it cannot be said that the entry of the year 2003-04 stand expunged.

24. We have perused the ACR of respondent No.4 produced by respondent No.3 and from perusal of the record it is evident that vide order dated 16th November, 2010 the adverse entry recorded in the Character Role for the year 2003-04 was expunged, but it is a fact that the on 16th October, 2009 the adverse entry in the Character Role of respondent No.4 was existing. We are not able to reconcile ourselves that how respondent No.3 has not sent the complete records relating to respondent No.4 to the respondentNo.2 for considering the ACR of each individuals while considering them for promotion to the IPS cadre on 16th October, 2009, adverse entry for the year 2003-04 was existing in the Character Role of the respondent No.4 and it was expunged on 16th November, 2010. Respondent No.3 is clearly responsible for suppressing the material facts relating to the respondent No.4, but we failed to understand that as to how the ACR of Respondent no.4 was communicated as Very Good whereas the adverse entry was existing. Moreover, there is one letter dated 18th June, 2004 on the Character Role of the respondent No.4 although, this order is relating to the entry of the year 2001 while he was posted in 26 Bn. P.A.C., Gorakhpur, but the order was passed on 18th June, 2004 and it was recorded in the Character Role for year 2001-02 and the integrity of the applicant was withheld and respondent No.4 was censured. There is a letter of Sri Atul Kumar, Special Secretary to the Govt. of U.P. of dated 01st September, 2004 in this letter it has also been mentioned that not only for the year 2001-02 the integrity of the respondent No.4 was withheld but the entry was also withheld for the year 2000-01. Hence from perusal of record of the respondent No.4 it can very well be said that the selection committee had not adopted the yardstick which they adopted in relation to the applicant and the grading of the applicant was not so bad in comparison to the respondent No.4 so as to disentitle him from promotion to the cadre of IPS. The respondent No.3 for the reasons best known to them suppressed the material facts from the selection committee and it can also be very well said that two different yardsticks have been adopted in the case of respondent No.4 and the applicant. If the applicant was classified as Unfit for promotion to the IPS Cadre then the case of respondent No.4 was not better in comparison to the applicant and hence he should have also not been selected. Moreover, regarding the working of DPC convened by the UPSC for promotion of State level officer to All India Services the letter written by one of the Member of earlier D.P.C. regarding irregularities and favourtisim and adopting different yardsticks for candidate to candidate as
referred above
is relevant regarding the contention of this letter no inquiry was conducted. Present case is also a glaring example of committing irregularities, having partial attitude towards candidate to candidate and suppressing the material matter by the State Govt. in the case of particular candidate. We cannot brush aside this glairing favourtism to the respondent No.4

25. It has been alleged by the applicant in the O.A. that due to extraneous superiority of the applicants junior batch-mate Sri Yogeshwar Singh who is the real bother of the State Political Leader/Legislature and the brother-in-law of influential DGP who now stands retired made the authorities to put his name in the select list dated 07th December, 2009 which clearly established the discrimination and arbitrariness of the respondents violating the fundamental rights of the applicant guaranteed under
Article 14
, 16(1)
and
of the Constitution of India. We will not be able to comment specifically that for what reasons the favourtism has been shown with respondent No.4 in his selection, but it is a fact that there is favoutism with Sri Yogeshwar Singh and it shows the arbitrariness. So far as the rejection of the candidature of the applicant is concerned the respondent No.3 is equally responsible for suppressing the material facts. We failed to understand that how the Character Role of the year 2003-04 of Sri Yogeshwar Singh has been substituted as Very Good whereas, adverse entries were existing on the date of conducting the selection meeting in the Character Role of the respondent No.4. While making the overall assessment of the candidature of Sri Yogeshwar Singh the Character Role of respondent No.4 should have been scrutinized.

26. In the Rejoinder Affidavit applicant further alleged that the adverse entry/minor penalties were awarded to the applicant but this minor penalty was considered in the D.P.C. held on 28th December, 2007 for the vacancies of the year 2006-07 meaning thereby that the adverse entry stands exhausted and the same cannot be taken into account while considering promotion in the subsequent years. It has also been alleged that on the strength of the outstanding ACRs of the Respondent No.4 the respondent No.4 has been declared to be fit candidate for the promotion by the selection committee whereas, two entries of the applicant were Good and two were Very Good in the select list of 2009 and hence the applicant should have been considered for promotion. We have decided above that at the time of conducting the meeting of the selection committee on 16th October, 2009 there was no adverse entry in the Character Role of the applicant whereas, there was adverse entry in the Character Role of the applicant and the same had already been expunged by the Tribunal and order was not challenged before the Honble High Court whereas, respondent No.4 also challenged the adverse entry before the Tribunal and the Tribunal expunged the adverse entry of the respondent No.4, but the implementation of the order has been stayed by the Honble High Court and moreover, the respondents himself admitted that when the selection committees meeting was conducted at that time also the adverse entry was existing in the Character Role of the respondent and it is evident from perusal of Character Role entry.

27. In view of the judgments of the Honble Supreme Court the Tribunal has got very limited jurisdiction to intervene in the matter of selection by DPC and we are also conscious of the fact that the Tribunal is not expected to sit as an Appellate Authority over the assessment made by the Selection Committee, but if different yardsticks have been adopted in the case of different persons then certainly Court can interfere in the same, and we are of the opinion that two yardsticks have been adopted in the case of two different persons and it is discrimination and favourtism. The candidature of the applicant was rejected for the selection year 2009 on the ground that there was one Average entry in the Character Role of the applicant whereas, the Character Role of the respondent No.4 was classified as Fit inspite of the fact that there was one adverse entry in the Character Role of the applicant, but for the reasons best known to the respondent Nos. 02 & 03 the respondent No.4 was found fit and the respondent No.3 is certainly responsible for suppressing the material facts from the selection committee relating the respondent No.4 and the adverse entry was existing in the Character Role of the respondent No.4 on the date when the meeting was convened of the selection committee, but even then the respondent No.4 was classified as Fit for promotion and he was given promotion. We are of the opinion that as there had been discrimination and it is violation of fundamental rights guaranteed by Constitution of India and respondent No.3/State is unjustified in adopting two different yardsticks.

28. For the reasons mentioned above we are of the opinion that being fully agree from the judgments of the Honble Supreme Court, the Tribunal has got the jurisdiction to interfere in the selection proceedings convened for selection to the post of I.P.S. Cadre. We are also of the opinion that for the year 2008 the candidature of the applicant was not found fit as there were two average entries in the Character Role of the applicant at the time of consideration for that year, but while the candidature of the applicant was considered for the select list of the year 2009 there were two Good and two Very Good entries existing in the Character Role of the applicant and incase there are Good entries then the candidate must be classified as Fit. Although, it is the discretion of the selection committee, but even then different yardsticks must have not been adopted by the respondent No.2 in making selection for the year 2009. In the selection year 2009 applicant was found Unfit for selection, whereas, one Sri Yogeshwar Singh, respondent No.4 was found fit for the promotion to the post of I.P.S., whereas, adverse entries were existing in the Character Role of the respondent No.4, the adverse entry was expunged after the DPC conducted the selection for year 2009 on 16th November, 2010 and this fact has been established from the ACR of the respondent. Moreover, during the previous year the integrity of the respondent No.4 was also withheld and the overall assessment of the applicant and the respondent No.4 was not outstanding. As respondent No.2 adopted different yardsticks and it shows arbitrariness, discrimination and favourtism in the case of the applicant and different yardsticks have been adopted in the case of the applicant. Under these circumstances it will be just and appropriate to quash the selection of Respondent No.4 as it is discriminatory and direct the respondents to consider the candidature of the applicant viz-viz respondent No.4 on the same parameter and yardstick and the order dated 02nd November, 2010 passed on the representation of the applicant is also liable to be quashed and the O.A. deserves to be allowed to this effect.

29. O.A. is allowed and the order dated 02nd November, 2010 (Annexure-A-2) is quashed and respondent No.2 is directed to convene a Review D.P.C. in order to reconsider the case of the applicant viz-viz respondent No.4 on the same yardstick and parameter and the respondent No.3 is directed to furnish all the incriminating material relating to the applicant and respondent No.4 to the respondent No.2 for consideration in the Review D.P.C. if in the Review D.P.C. it is found that different parameters had been adopted in the case of respondent No.4 then they may pass appropriate order in the case of respondent No.4 also. The order passed this Tribunal shall be complied with within a period of three months from the date when the copy of this order is produced before respondent No.2 and 03. Applicant shall produce copy of this order before the respondent Nos. 02 and 03 at the earliest. No order as to costs.

[Jayati Chandra] [Justice S. C. Sharma]
Member-A Sr. Member-J
/Dev/
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