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K.P. Bhowmick Vs. Union of India (Uoi) Through the Secretary, Ministry of Home Affairs and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Civil
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 378 of 1981
Judge
Reported in1986(I)OLR80
ActsAdministrative Law; Service Law; Constitution of India - Articles 14 and 16; Indian Police Service (Appointment by Promotion) Regulation, 1955 - Regulation 5(5)
AppellantK.P. Bhowmick
RespondentUnion of India (Uoi) Through the Secretary, Ministry of Home Affairs and ors.
Appellant AdvocateParty-in-person
Respondent AdvocateR.K. Patra, Addl. Govt. Adv. and ;Standing Counsel (Central)
DispositionApplication allowed
Cases ReferredUnion of India v. M. L. Kapoor
Excerpt:
.....18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - patnaik and prejudicial attitude towards him affected the selection process in the year 1967 as well as in 1968. not until mr. he was shown senior to the petitioner in the list submitted by the authorities to the selection committee and the commission in the year 1967. he had also bad service records. despite his brilliant service record disclosed by his confidential character roll and bad record of service of sri das, the latter was selected but not the petitioner. the petitioner has asserted that sri das had a bad record and had been punished in a..........have run he being senior to mr. patnaik by two years.he has alleged that the very officers of the state government who did the wrong in placing mr. patnaik above him were also members of the committee which selected officers for promotion to the indian police service. their partisan attitude towards mr. patnaik and prejudicial attitude towards him affected the selection process in the year 1967 as well as in 1968. not until mr. patnaik was eligible for promotion was he considered suitable. mr. patnaik was not eligible for selection either in 1967 or 1968, that is, on the appropriate dates of the relevant years. mr. patnaik and he were promoted to officiate in the senior scale of the indian police service with effect from 30.11.1968 barely 42 days after the selection committee sat in the.....
Judgment:

R.C. Patnaik, J.

1. In this writ application under Articles 226 and 227 of the Constitution of India, the petitioner, a member of the Indian Police Service seeks the quashing of the decision of the Government as communicated by memo No. 28026/Gen.dated 3.12.1980 (Amexure-14) rejecting his representation and for a direction for inclusion of this name in the select list either of the year 1967 or 1968 for his promotion to the I. P. S. Cadre with effect from 30. 6.1967 and for assigning 1963 as his year of allotment and for other consequential benefits.

2. The petitioner was appointed as a Deputy Superintendent of Police in the Orissa Police Service Cadre on 26.6.1958. He was confirmed with effect from 26.6.1961. The petitioner has alleged that one Mr. N. R. Patnaik who was recruited as Deputy Superintendent of Police on 1.5.1960 and confirmed in the rank with effect from 1.5.1963 was declared senior by the Government by order dated 27.6.1964, Annexure-2. His representation to Government protesting against the fixation of seniority of Mr. Patnaik above him having bean of no avail, he moved this Court in a writ petition bearing number O. J. C. 60 of 1965. By judgment dated 24.10.1968, this Court nullified the decision of the Government placing Mr. Patnaik above the petitioner in the seniority list. This Court observed that such placement of Mr. Patnaik was likely to effect adversely the petitioner's prospect of promotion to the Indian Police Service. The judgment was delivered on 24.10.1968, but wrong was not undone till 28.4.1969 when the Government cancelled its earlier order as per Annexure-2 (vide Annexure-5). Despite the restoration of status-quonate, his future was tagged to that of Mr. Patnaik, as the events would show, and the course of his service career ran only parallel to Mr. Patnaik but not ahead of him as it ought to have run he being senior to Mr. Patnaik by two years.

He has alleged that the very officers of the State Government who did the wrong in placing Mr. Patnaik above him were also members of the committee which selected officers for promotion to the Indian Police Service. Their partisan attitude towards Mr. Patnaik and prejudicial attitude towards him affected the selection process in the year 1967 as well as in 1968. Not until Mr. Patnaik was eligible for promotion was he considered suitable. Mr. Patnaik was not eligible for selection either in 1967 or 1968, that is, on the appropriate dates of the relevant years. Mr. Patnaik and he were promoted to officiate in the senior scale of the Indian Police Service with effect from 30.11.1968 barely 42 days after the Selection Committee sat in the year 1968 for selection of suitable officers for promotion to the Indian Police Service.

He has made a grievance that one J.K. Das who was appointed as D. S. P. with effect from 12.1.1960 by Government notification dated 16.12.1959 published in the Orissa Gazette on 1.1.1960 and confirmed as D. S. P. on 15.3.1962 by notification dated 12.8.1964 published in the Orissa Gazette dated 28.8.1964 was not eligible in 1957 not having completed 8 years of continuous service in the post of D. S. P.

He was shown senior to the petitioner in the list submitted by the authorities to the Selection Committee and the Commission in the year 1967. He had also bad service records. The Selection Committee and the Union Public Service Commission were therefore, misled by the particulars supplied. That vitiated the decision of the Selection Committee and the Union Public Service Commission. Despite his brilliant service record disclosed by his Confidential Character Roll and bad record of service of Sri Das, the latter was selected but not the petitioner. As the petitioner was senior, it was obligatory under the law to record reasons for his supersession. Reasons were not recorded as the Selection Committee was moved by the statement that Sri Das was senior to the petitioner. In 1968, though there were four vacancies in the promotion quota and double the number, i. e., 8 names should have been included, only two were selected by the Selection Committee which met on 18.10.1968. The petitioner has contended that had the correct particulars been furnished in l967, he was likely to have been selected then and if his name had been included in 1967, his case would have been considered in 1968, but ineligible Sri Das substituted him in the year 1967. Though the petitioner raised many other contentions, finally be concentrated his attack on the ground of bias and arbitrariness of the members of the Selection Committee and ineligibility of Sri Das.

He has further submitted that his assertion that he had a brilliant record of service has not been controverted by the authorities. He has also wanted that his service records should be perused by us.

In 1969, Mr. Patnaik and he were selected and appointed to the Indian Police Service with effect from 12.2.1970. Mr. Patnaik and he were assigned the same year of allotment, i. e., 1965.

The petitioner has made a grievance that though the wrong done to him by the State Government in declaring Mr. Patnaik senior to him was set right by this Court, the shadow did not leave him but prosecuted him thereafter and the relief granted to him by this Court was meaningless. On the aforesaid assertions, he sought the reliefs prayed for.

4. Being aggrieved by the decision of the Government, the Select Committee and the U. P. S. C., the petitioner moved the Union Government by representation dated 10.5.1977. When for. two years the Government did not take decision, he moved this Court in O. J. C. No. 87 of 1979. On 23.6.1980, this Court directed the Union Government to dispose of the representation with the following order:

'We think it appropriate to call upon the Union Government to dispose of the petitioner's representation within four months from the date of service of the order. With this direction, the present writ application is disposed of. In case the petitioner has any grievance to make after the representation is disposed of should be at liberty to take appropriate legal steps to vindicate his grievance.'

The petitioner made a further representation to the Union of India on 23.7.1980 as per Annexure-13. By Annexure-14 dated 3.12.1980, he was informed that the Government of India had rejected his earlier representation dated 10.5.1977. The representation as per Annexure-13 had not been disposed of by 27.2.1981 when the petitioner filed this writ application.

5. In the return submitted by the Union of India and the Union Public Service Commission (opposite parties 1 and 2), it has been averred that the Selection Committee considered the cases of eligible candidates including the petitioner in the years 1967 and 1988. But the petitioner's name was not included in the select list. In the year 1967, the existing and anticipated vacancy was only 2 and as the number of senior duty posts in the Indian Police Service was 60, only 6 names were selected. In the year 1958, as the State Government reported the existing/ anticipated vacancies as four, the size of the select list should have been eight. But the Selection Committee considered only two officers suitable for inclusion. On both the occasions, the Union Public Service Commission accepted the recommendation of the Selection Committee. Opposite parties 1 and 2 have not traversed the allegations regarding Mr. J. K. Das but the buck has been passed on the State Government. The State Government, opposite party No. 3, in its return has controverted the assertions of the petitioner that he was not considered suitable during the years 1967 and 1968 because Mr. N. R. Patnaik was not eligible by then. As regards the crucial contention advanced by the petitioner, it is argued that Mr. Das fulfilled all the conditions of eligibility on or before 1.1.1967 and his case was, therefore, rightly considered the allegation that Sri Das completed 52 years of age and was, therefore, ineligible, has been answered by the plea that Sub-regulatcion(2) of Regulation 4 of the Regulations came into force with effect from 31.3.1967. Hence there was no bar operating on the inclusion of the name of Sri Das on 25.2.1967 when the Selection Committee sat for consideration.

6. In course of hearing, we called upon the State Government to file further affidavits with sufficient specificity on the question of eligibility of Sri Das in the year 1967. Some documents in pursuance to the said direction with an affidavit were filed. The substance being that Sri J.-K. Das was appointed as D. S. P. on 7.8.1956 and as such he was eligible in 1967 for promotion to the Indian Police Service-cadre having completed 8 years of service. The petitioner then joined issue stating that the notification issued by the State Government stated that Sri Das had been appointed, as D. S. P. with effect from 12.1.1960 and was confirmed as such with effect from 15.2.1962. The State Government was then called upon to file further affidavits and documents in support of the assertion that Sri Das was appointed as D. S. P. with effect from 7.8.1956. In the further affidavit it is stated that on the representation of Sri Das for fixation of his seniority in the tank of D. S. P. the Government decided that Sri Das should be given a place in the select list of 1955 according to his seniority, vide Annexure-8 dated 9.4.1963. Pursuant to the said direction, the Inspector General of Police fisted his deemed date of officiation in the tank of D. S. P. as 7.8.1956. It is stated that on the aforesaid basis name of Sri Das was sponsored by the Inspector General of Police and forwarded by the State Government so that his case could be considered by the Selection Committee for promotion to the Indian Police Service.

Of the other opposite parties, opposite party No. 9 alone entered appearance and filed a. return He has reiterated the pleas raised by the Union and State Government opposite parties 1, 2 and 3.

6. Two questions, therefore, fall for consideration in this case. First, was the consideration by the Selection Committee in the years 1967 and 1968 vitiated by operation of bias and prejudice; bias in favour of Mr. Patnaik and prejudice against the petitioner Was the consideration arbitrary? The petitioner argued his case him If with remarkable skill and clarity. His suave and persuasive pleading prima facie showed an aggrieved heart. He lamented that the erroneous decision of the Government in the year 1964 adjudging Mr. Patnaik senior to him, though destroyed by the High Court, continued to be labour him. The officers of the State Government who were instrumental or were parties to the said decision were also members of the Selection Committee. He argued that though vanquished they were reluctant to loose ground. By the time the Selection Committee met on 25.2.1967, the Government decision declaring Mr. N. R. Patnaik senior to the petitioner as per Annexure-2 still held the field. He submitted that it could not be absent from the minds of the officers of the State Government who were instrumental in bringing about Annexure-2 and who were members of the Selection Committee that Mr. N. Patnaik was not eligible for consideration for promotion. The petitioner has averred that he had a brilliant record of service. Never had there been adverse entry. His integrity was beyond question. His assertions have not been controverted. To satisfy ourselves, we called upon the State to produce the C. R. dossier of the petitioner. The entries substantiate his assertion. The petitioner has asserted that Sri Das had a bad record and had been punished in a disciplinary proceeding. His non-inclusion in 1967 was solely due to the bias and prejudice of the officers of the State Government who were members of the Selection Committee and formed the majority thereof.

7. Ordinarily the Court does not sit in appeal over the assessment of a Selection Committe of a Departmental Promotion Committee. Interference is in extraordinary circumstances and in rare cases where the assessment is so whimsical, arbitrary or perverse that the assessment is no assessment at all or where the assessment has been vitiated by bias, prejudice or interestedness. The petitioner has not alleged personal interestedness of any of the members. His endeavour has been to marshal the facts and circumstances with a view to investigate into arbitrary or the perverse decision by the Selection Committee. His claim has been how on the service career he had, the Selection Committee could fail to select him while selecting persons with the bad record or average record. In this context, he has urged that though in 1968, the number of existing/anticipated vacancy was four and eight persons should have been selected for inclusion in the list only two who had also been selected in 1967 were included. On the day the Selection Committee met in 1968, Mr. N. R. Patnaik was not eligible nor had the decision of the Government as per Annexure-2 by then upset. The decission of the High Court came on 24-10-1963 and the Selection Committee met on 18-10-1968. He has alleged that the reason for his non-inclusion was the the same as in 1967. On no other hypothesis can his selection to officiate in a senior cadre post in the Indian Police Service within 42 day thereafter, i. e., on 30-11-1968 be justified. Those very officers of the State Government who were members of the Selection Committee decided that he was suitable for promotion. On 30-11-1968 Mr. N. R. Pataik was also promoted. Next year the Selection Committee met on 19-12-69 and Mr. N. R. Patnaik and he were selected for inclusion in the list and the petitioner was appointed along with Mr. N. R. Patnaik with effect from 12-2-1970.

8. There is some plausibility in the submission of the petitioner and cogency too. We would entertain this view having gone through the petitioners C. R. dossier and his performance as recorded therein. Influence operating against one might be overt or might be covert. It is easy to strike out the overt ones. The covert operation is difficult to trace and still more difficult to establish. But objective appraisal is sometimes helpful. To us it appears that the petitioners case is an extraordinary one not comparable to ordinary run of cases of selection and non-selection. The petitioner entered service in June, 1958. His travail commenced from 1964. It is difficult not to accede to the contention of the petitioner for on what logic can we answer to selection of the petitioner for officiation in a senior cadre post in the Indian Police Service barely 42 days after his rejection as unsuitable. We have perused and considered the entries in the C. C. R. of the petitioner. The Selection Committee in 1968 met on 18.10.1968. There was no change in the performance of the petitioner during the period from 18.10.1958 to 30.11.1968, nor were the entries during the period from October, 1968 to December 1969 indicate any qualitative change. The petitioner was consistent in his performance. Therefore, though ordinarily we would not have sat in judgment over the assesment of the Selection Committee, we are of the view that non-inclusion of the name of the petitioner in 1968 cannot be supported. We now go back to the stage of 1967 to consider if Sri J. K. Das was ineligible. The existing and anticipated vacancies in the year 1967 were two and the Committee had to select 6 officers for inclusion in the list Names of 14 Deputy Superintendents of Police ware furnished by the State Government for consideration of the Committee. The first three had been superseded earlier for bad records. The Committee selected the next six. The petitioner was the last officer in the list. He was not included. The petitioner has alleged that Sri J. K Das was appointed on 12.1.1960 whereas he was appointed with effect from 26.6.1958. In answer to the aforesaid, the State Government filed an affidavit stating that on the representation of Sri Das, the Government decided that he would occupy a place in 1955 list according to seniority. The petitioner has submitted that the notification appointing Sri Das as a Deputy Superintendent of Police with effect from 12.1.1960 has not been superseded. The decision regarding his placement in the 1955 select list did not ipso facto appoint him to the service-with effect from an earlier date. The note of the Inspector General of Police as in Annaxure-8 to the further affidavit dated 1.11.1988 was not a decision of the Government. He emphatically asserted that there was no decision of the Government. To settle this controversy we called upon the State Government to produce the file, order or notification in support of the appointment of Sri Das with effect from 7.8.1956 or any decision of the Government giving Sri Das seniority with effect from the said date. Though several adjournments were granted, no such decision of the Government was made available to us, nor was it shown to us how the seniority of Sri Das was fixed from 7.8.1956. In the absence at any material, if cannot be held that Sri Das was senior to the petitioner. The reverse was the case, he was junior to the petitioner. If this conclusion is correct, the selection exercise of the Committee in in 1967 was vitiated. It was obligatory on the Selection Committee under Regulation 5(5) of the I. P. S.( Appointment by Promotion) Regulation, 1955 to record reasons for non-inclusion of the name of the petitioner, i, e., for his supersession.

Admittedly, no reason has been assigned. The petitioner has alleged that had his name been included in 1967, it would have continued in 1963 and he would have a fair chance for appointment to the I. P. S. oadre. The State Government have admitted that it implemented the decision of the High Court quashing its decision adjudging Mr. Patnaik senior to the petitioner in April, 1969. Could it not be said that until the notification was issued by the State Government, the vice of Annexure-2 influenced the decision. Taking an overall view of the matter, we are of the view that the selection process both in the years 1967 and in 1963 so far as the petitioner was concerned, was vitiated and the petitioner is entitled to reconsideration. In our view the principles, which ought to have guided the members' of the Selection Committee as enunciated in the case of Union of India v. M. L. Kapoor, AIR 1974 S. C. 87 were not followed by the Selection Committee. On the material it is difficult to comprehend the non-inclusion of the petitioner.

9. It was argued on behalf of the opposite parties that the petitioner has approached this Court at a belated stage and was therefore, not entitled to an exercise of the extraordinary jurisdiction.

The cause of action arose in 1967 and 1968. The writ application was filed in 1981. This however does not obstruct the passage of justice, The petitioner filed O. J. C. No. 60 of 1965 to get rid of the first hurdle which was the ranking given to Sri Patnaik by the Government. Though the decision of the High Court came on 24. 10.1958, the Govt. issued notification undoing the wrong on 28.4.1969. Thereafter the petitioner made representation to the Government of Orissa on 23.12.1970 as per Annexure-II. He made representation to the Central Government on 10.5.1977. When there was delay in the disposal thereof, be moved this Court in O. J. C. No. 87 of 1979. This Court while directing the Union Government to dispose at the representation observed that if aggrieved the petitioner could move this Court for relief. He was informed in November, 1980 that his representation had been rejected by the Government of India. He filed the writ application in February, 1981.

The fact narrated above go to indicate the sinicerety and deligence with which the petitioner has been pursuing the remedies one after another to secure justice. The facts and circumstances, therefore, do not impel us to refuse our discretionary jurisdiction on the ground of delay. By our decision, we are uprooting none from service. We are merely giving a direction for reconsideration.

10. In the result, we allow the writ application and call upon the opposite parties to constitute a Selection Committee to reconsider the case of the petitioner for inclusion in the 1967 or 1968 list. There would be no order as to costs.

B.K. Behera, J.

11. I agree.


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