WA/2264/2012 of DIRECTOR GENERAL, CISF Vs B.GOPAL on 31 December 2012

1. DIRECTOR GENERAL,

CENTRAL INDUSTRIAL SECURITY FORCE (CISF), HEADQUARTERS, BLOCK NO. 13, CGO COMPLEX, LODHI ROAD

NEW DELHI-110 003.

2. UNION OF INDIA

REPRESENTED BY THE SECRETARY MINISTRY OF HOME AFFAIRS, NORTHBLOCK NEW DLHI-110001.

BY ADV. SRI.TPM.IBRAHIM KHAN,SENIOR PANEL COUNSEL

RESPONDENT(S)/PETITIONER :--------------------------

1. B.GOPAL COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE CISF UNIT FACT LIMITED UDYOGAMANDAL COCHIN-683501.

2. THE UNION PUBLIC SERVICE COMMISSION, SHAJAHAN ROADM DHOLPUR HOUSE, NEW DELHI-110001 RERPESENTED BY ITS SECRETARY.

R1 BY ADV. SRI.G.SHRIKUMAR (SR.) BY ADV. SRI.SREEJITH S.NAIR

R2 BY ADV. SRI.GEORGE JOSEPH,SC,UPSC.

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31-12-2012, THECOURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MANJULA CHELLUR, C.J &

K.VINOD CHANDRAN, J.

---------------------------------------------- W.A.No. 2264 of 2012

---------------------------------------------- Dated this the 31[st] day of December, 2012JUDGMENT

Manjula Chellur, C.J.

This appeal is filed by the appellants aggrieved by thejudgment of the learned Single Judge in allowing the Writ Petitiondirecting the appellants to convene a review DPC to consider andassess the merit of the persons at Sl.Nos. 24 and 25 at Exhibit P5(Tarsem Kumar and the petitioner) respectively to be promoted tothe two left over vacancies of the year 2009-2010 and passconsequential orders forthwith. It is necessary to narrate certainfacts in order to understand the real question of controversybetween the parties.

2. It is not in dispute that paneled persons who are eligibleto be considered for promotion as Senior Commandant during theselect year 2009-2010 came to be prepared consisting of 25persons. The select year is 2009-2010. It is not in dispute that the'select year' means, commencement from 1.4.2009 to 31.3.2010.There were only 15 vacancies during the select year is also undisputed. Exhibit P5 is dated 30.11.2010. Out of 25 persons, Sl.Nos.1, 2, 3, 5, 6, 7 and 19 were declared as unfit for differentreasons. Admittedly, the writ petitioner was Sl.No.25. Exhibit P3is the final list consisting of only 13 persons including thepetitioner and also another person above him by name TarsemKumar of Sl.No.24.

3. According to the petitioner before the learned SingleJudge, as on the date of DPC meeting, there were clear vacanciesof 15 in number, therefore, even Sl.Nos. 24 and 25 ought to beconsidered on par with Sl.No.20 Mr.A.K.Srivastava. AsMr.Shreekant Kishore at Sl.No.23 came to be considered againstthe vacancies created on account of retirement ofMr.A.K.Srivastava Sl.No.20, even Sl.Nos.24 and 25 ought to havebeen considered against the vacancies that arose on account ofsuperannuation of Sl.No.16 Mr.S.Kumberwar and Sl.No.21 Mr.LaljiRam Kaul. To substantiate their stand, the writ petitionercontended before the learned Single Judge that DPC wasconvened very late. Therefore, the entire dichotomy arose and onaccount of delayed DPC meeting, there were three vacancies,hence, when the writ petitioner and other persons were in zone ofconsideration, there was no justification to exclude their names when vacancies were very much available on the date ofconvening of DPC, i.e., 30.11.2010. They also placed reliance onExhibit R1(b) to contend that DPC could have extended panel inthe light of vacancies that arose on account of retirement ofSl.Nos.16 and 21.

4. The learned Single Judge, after referring to Exhibit R1(b)and placing reliance on Exhibit P4, opined that on account ofdelayed DPC meeting, the petitioner and others were not to beexcluded from the selection as it is not on account of their faultwhy DPC was delayed. According to the learned Single Judge, thecontingencies that arose on account of retirement of persons, whowere in the zone of consideration, have to be understood inaccordance with the guidelines at Exhibit P4 dated 9.4.1996 andthe same year referred to at Exhibit P4 has to be understood asthe date of convening the DPC meeting. Opining as stated above,the leaned Single Judge directed to convene a review DPC toassess the fitness of the persons at Sl.Nos.24 and 25. Aggrievedby the same, the present appeal is filed.

5. According to the appellant department, the vacancy wasfilled up by considering the case of Mr.Shreekant Kishore asMr.A.K.Srivastava, who retired in the select year 2009-2010 and it was purely done in accordance with the guidelines at Exhibits R1(b) and P4. Vacancies created on account of retirement ofMr.S.Kumberwar and Mr.Lalji Ram Kaul could not be considered asthey retired beyond the select year of 2009-2010, i.e.,Mr.S.Kumberwar retired on 1.8.2010 and Mr.Lalji Ram Kaul retiredon 31.7.2010.

6. The entire controversy revolves round the guidelinesissued by the Department of Personnel and Training (DoPT) fromtime to time. Exhibits R1(b) and P4 are the relevant documents sofar as the present controversy is concerned. Exhibit R1(b) is anoffice memorandum clarifying the procedure to be followed byDPC with regard to retired employees. Paragraph 3 of Exhibit R1(b) is relevant for the present case, which reads as under:

“3. The matter has been examined in

consultation with the ministry of Law(Department of Legal Affairs). It may be pointedout in this regard that there is no specific bar inthe aforesaid Office Memorandum dated April10, 1989 or any other related instructions of theDepartment of Personnel and Training forconsideration of retired employees, whilepreparing year-wise panel(s), who were withinthe zone of consideration in the relevant year(s).according to legal opinion also it would not be in order if eligible employees, who were within thezone of consideration for the relevant year(s)but are not actually in service when the DPC isbeing held, are not considered while preparingyear-wise zone of consideration/panel and,consequently, their juniors are considered (intheir laces) who would not have been in thezone of consideration if the DPC(s) had beenheld in time. This is considered imperative toidentify the correct zone of consideration forrelevant years(s). Names of the retired officialsmay also be included in the panel(s). Suchretired officials would, however, have no rightfor actual promotion. The DPC(s), may, if needbe, prepare extended panel(s) following theprinciples prescribed in the Department ofPersonnel and Training Office MemorandumNo.22011/8/87-Estt.(d) dated April, 9, 1996.”

7. As we understand from the above quoted paragraph, itsays, while preparing year-wise panel, who were within the zoneof consideration in the relevant year, there is no bar to excludepersons, who are going to be retired in that year as long as theywere in the zone of consideration. It further says, the juniors couldbe considered to those vacancies, as the retired persons factuallycannot be considered for promotion as long as the juniors were in

the zone of consideration. It further says, to prepare extendedpanel, DPC has to follow the principles prescribed in the DoPTletter dated 9.4.1996, which is at Exhibit P4. In accordance withparagraph 3 quoted above, as we note from Exhibit P5, the list ofpersons, who were within the zone of consideration, came to beprepared, which consists of 25 persons. So far as Sl.Nos.24 and25, no assessment came to be made in accordance with theguidelines as there was no need to consider their names at therelevant point of time when DPC convened its meeting. The list of15 persons was also prepared. Panel of 15 general vacancies forthe year 2009-2010 also came to be prepared consisting of 15names including the names of Mr.S.Kumberwar at Sl.No.10,Mr.A.K.Srivastava at Sl.No.13 and Mr.Lalji Ram Kaul at Sl.No.14.As per the extended panel, Mr.Shreekant Kishore was consideredin the place of Mr.A.K.Srivastava, who retired on 31.12.2009. Thisis what Exhibit P5 says. The argument of learned counsel for therespondent-writ petitioner is that the principle applied to the caseof vacancy of Mr.A.K.Srivastava equally has to be applied to thecase of vacancies of Mr.S.Kumberwar and Mr.Lalji Ram Kaul inaccordance with Exhibit R1(b) at paragraph 3, by which DPC wasempowered to prepare extended panel.

8. As a matter of fact, Mr.S.Kumberwar and Mr.Lalji RamKaul could not be promoted, as the DPC met only on 31.11.2010after their retirement. But, as per the instructions of DoPT atExhibit R1(b), their names were included as they were in the zone of consideration. However, the extended panel had to beprepared in accordance with Exhibit P4. Paragraph 2 of Exhibit P4is very relevant for the present controversy, which reads asunder:

“2. The matter has been examined inconsultation with the UPSC and it has been decidedthat DPCs shall prepare an extended panel only inthe following contingencies:

i) When persons included in the panel arealready on deputation or whose orders ofdeputation have been issued and will beproceeding on deputation shortly for morethan a year oralready on deputation or whose orders ofdeputation have been issued and will beproceeding on deputation shortly for morethan a year or

ii) When persons included in the panel haverefused promotion on earlier occasionsand are under debarment for promotions;refused promotion on earlier occasionsand are under debarment for promotions; or

iii) When officers included in the panel areretiring within the same year provided thereis no change in the zone of consideration bythe expected date oftheir retirement;”retiring within the same year provided thereis no change in the zone of consideration bythe expected date oftheir retirement;”

9. We are concerned with paragraph 2(iii) of Exhibit P4. Theabove paragraph clearly indicates, DPC can prepare extendedpanel only when the officers included in the panel are retiringwithin the same year provided there is no change in the zone ofconsideration by the expected date of their retirement. Thedepartment is relying on paragraph 3 quoted above to explaintheir stand why Sl.Nos.24 and 25 are excluded from considerationin the DPC held on 30.11.2010.

10. If we take into consideration the contingency on accountof delayed DPC, one has to look into the guidelines for preparingthe extended panel. The logical argument of learned counsel forthe respondent-writ petitioner that paragraph 2(i) of Exhibit P4 inthe case of an officer, who is on deputation for more than oneyear may not be available in the case of paragraph 2(iii) and 2(i).When the writ petitioner claims his right on account of retirementof two persons as on the date of DPC meeting, the guidelineapplicable is paragraph 2(iii) and nothing else. We are notexpected to read in between the lines and then conclude that allthe guidelines would extend to the benefit of the writ petitionerapart from paragraph 2(iii) of Exhibit P4. There is no scope forsuch extended or expanded meaning so far as extended panel. The extended panel, which the DPC could prepare has to be strictly inaccordance with the guidelines at Exhibit P4.

11. Then coming to the question what exactly the retirementwithin the same year would mean. If we read Exhibit R1(b) andthe guidelines at Exhibit P4, it shall not take us to any othermeaning than the select year. In other words, the 'same year'here is with regard to select year. At Exhibit P5 it is clearlymentioned as general vacancies of 2009-2010 (from 1.4.2009 to31.3.2010). Reading of paragraph 2(iii) of Exhibit P4 withreference to the vacancy position as Mr.Kumberwar and Mr.LaljiRam Kaul retired much later than the select year which ended on31.3.2010 the extended panel could not include these vacanciesso far as general vacancies of 2009-2010. The names ofMr.A.K.Srivastava, Mr.Kumberwar and Mr.Lalji Ram Kaul had to beincluded in the list as they were within the zone of considerationas per the guidelines at Exhibit R1(b) and the extended panel hasto be prepared as per the guidelines at Exhibit P4, as Exhibit R1(b) refers to Exhibit P4 letter dated 9.4.1996.

12. In that view of the matter, the DPC could not haveconsidered Sl.Nos.24 and 25 against the vacancies created by theretirement of Mr.Kumberwar and Mr.Lalji Ram Kaul. As per the very same guidelines at Exhibits R1(b) and P4, these twovacancies have to be shifted to the next select year, i.e., 2010and 2011. The vacancies of Mr.Kumberwar and Mr.Lalji Ram Kaulhave to be considered for the select year 2010-2011 which was infact considered. But, unfortunately, the writ petitioner was foundbelow the benchmark. Therefore, his case was not considered.

In that view of the above reasoning, we are of the opinion,the Writ Appeal deserves to be allowed by setting aside thejudgment of the learned Single Judge. Accordingly, the WritAppeal is allowed.

MANJULA CHELLUR,

CHIEF JUSTICE

vgs1.1.13

K.VINOD CHANDRAN JUDGE