Dulal Krishna Majumdar v. State of West Bengal — 1979 DIGILAW 237 (CAL)

JUDGMENT Banerjee, J: 1 his appeal at the instance of the petitioner arises out of an order passed by the Hon'ble single Judge hearing the petition at the instance of the petitioner who was at the point of time Additional S.P., Midnapore, against his order of reversion dated the 20th March, 1975 passed by the Government of West Bengal stating therein that as the petitioner's name had not been included in the revised select list of the State Police Officers considered for promotion to I.P.S. as approved by the U.P.S.C. on the 3rd December, 1975, the petitioner Cannot therefore be allowed to hold the I.P.S. cadre post on an officiating basis ill accordance with I.P,S. (Appointment by Promotion) .Regulation. Accordingly, the orders have been passed posting the petitioner in a State Police Service Post. The petitioner also annexed annexure" B" to the petition a letter dated 30.1.76 issued by the Home Department, G.A. Branch to the petitioner communicating to him the adverse remark that has been recorded in his C.C.R. for the 'years 1973-74 and 1974-75. It is to be stated that the petitioner's name was included in the select list prepared in November 1972 and according to the same he was just at the top of the seniority list as the petitioner is the senior most D.S.P. in State Police Service. By the impugned order as hereinbefore stated the petitioner's name from the select list was removed and in consequence thereof the petitioner was sought to be reverted to the State Police Service and, therefore, to the post of D.S.P. which he was holding before his name was entered in the select list for the promotion to the post of I.P.S. cadre under I.P.S. (Appointment by Promotion) Regulation. 2. Being aggrieved by this order the petitioner moved the Court and obtained the present Rule. While issuing the Rule the Hon'ble Judge directed status quo to be maintained until further orders. it appears that pending the hearing of the Rule the interim order was continued but though at the present moment he was working In the I.P.S. cadre but he has not been allowed to draw the salary which he is entitled to. While issuing the Rule the Hon'ble Judge directed status quo to be maintained until further orders. it appears that pending the hearing of the Rule the interim order was continued but though at the present moment he was working In the I.P.S. cadre but he has not been allowed to draw the salary which he is entitled to. He works in the I.P.S. cadre and he is in fact getting the salary of the D.P.S. Be that as it may, at the bearing in the affidavit-in-opposition filed by the respondent the Union Public Service Commission it has been stated. inter alia, that the select last shall be ordinarily in force until it is reviewed' or revised according to Regulation 5(7) of the I.P.S. (Appointment by Promotion) Regulation, 1955. It has been further stated that the selection committee made the assessment regarding the suitability of an officer for promotion of the basis of the service record as obtained at the time of the meeting of the committee. The meeting was hold on October 6, 1975. The recommendation was made to the U.P.S.C. and along with the recommendation the service records of all the persons fit to be in the select list under the regulation 5(1) of the I. P.S. (Appointment by Promotion) Regulation, 1955, were sent. The State Government filed the affidavit stating inter alia -therein that the petitioner's name was for the first time included in the select list for promotion to I.P.S. prepared in 1973 and his name was continued to be borne in the select list prepared in 1974. In March 1973 the petitioner was appointed to officiate in the post of the Superintendent of Police, Government Railway Police Howrah, which is a post included in the I.P.S. cadre. It is stated further that in the select list of 1975 the name of the petitioner was not included and as the petitioner's name was not included; by the order dated 20.3.76 the petitioner was not allowed to hold the I.P.S. cadre post on an officiating basis and as such an order was made reverting the petitioner to the West Bengal Police Service and posting him as Liaison Officer, Forensic Science laboratory, Calcutta. It was stated further that in preparing the select list of 1975 the selection committee examined all the records of eligible officers including the petitioner and considered the question of suitability of the officers concerned for promotion with reference to the integrity. It is stated that the State Government withheld the integrity certificate in respect of the petitioner. It was further stated that the petitioner's name was not included in the list prepared in 1976 on the ground that the petitioner attained the age of fifty two before the 1st January, 1976 and, therefore, the selection committee did not consider him of such exceptional merit and suitability to warrant a departure of the regulation under Regulation 5(3) of the I.P.S. (Amendment by Promotion) Regulation, 1955. In the way, Mr. Chakraborty has argued this case that it is not necessary to refer to the other facts in the present case but the Hon'ble Judge was pleased to discharge the Rule holding, inter alia that in making the order striking out the name of the petitioner from the select list the reasons were recorded as to why it should be done. 3 Mr. Chakraborty on behalf of the appellant, contended firstly that the adverse remark sent to the petitioner on 30.1.76 was regarding the adverse remark in the C.C.R. for the year 1973-74 and 1974-75 which was served on him long after the adverse remark was entered in the C.C.R. of the petitioner and it is the case of the State Government that all the files sent to the selection committee who was considering the names of the persons eligible to be enlisted in the select list were sent to the U.P.S.C. on 31.10.75 and, therefore, on the face of it, it appears that the adverse remarks were in the record of the petitioner which were sent and considered by the selection committee and, therefore, by the U.P.S.C. when it came to the conclusion that the name of the petitioner should be deleted from the select list. In the All India Service (Confidential Rolls) Rules, 1970, it has been specifically provided in Rule 5 that confidential roll assessing the performance, character, conduct and quality of every member of the service shall be for each 'financial year or current year as may be specified by the Government, ordinarily within two months of the close of the year. In the All India Service (Confidential Rolls) Rules, 1970, it has been specifically provided in Rule 5 that confidential roll assessing the performance, character, conduct and quality of every member of the service shall be for each 'financial year or current year as may be specified by the Government, ordinarily within two months of the close of the year. We are not concerned with the other portion of the Rule 5. But it is also provided that even if adverse confidential report is made it must be communicated to the member of the service and under Rules 8 and 9 of the said Rules of 1970 a member of the service may represent to the Government against the same under Rule 8 within three months from the date of receipt by him. The Government shall on such representation being made in consultation with the Reporting Officer consider the representation made and pass order thereon as soon as practicable within three months rejecting the representation, toning down the same or expunging the same and the order so passed on the representation shall be final while confidential character roll is a part of the service record of the member of the service and more often than not these are considered, in the time of promotion to higher posts by the authorities concerned. In the present case, admittedly. the confidential adverse remark made for the year 1973-74 and 1974-75 was considered, as affidavit filed by the Union Public Service Commission. the petitioner as well as others which was sent to them 'for making the select list for officers fit to be promoted to the I.P.S. cadre. If such orders are made on consideration of adverse remark even when the petitioner had any (no?) chance to make any representation against the same, such orders cannot be allowed to stand. the petitioner as well as others which was sent to them 'for making the select list for officers fit to be promoted to the I.P.S. cadre. If such orders are made on consideration of adverse remark even when the petitioner had any (no?) chance to make any representation against the same, such orders cannot be allowed to stand. Admittedly the selection committee on 6.10.75 made the recommendation to the U.P.S.C. and on 3.12.75 on the basis of the record containing the recommendation by the members as well as the adverse remark already appearing on the confidential roll of the petitioner, the U.P.S C. approved the same; and as the order passed deleting his name from the select list the petitioner was reverted from the officiating post Such order must be held to be by way of punishment as it appears apart from his reversion: his chance of future promotion has already been jeopardized by the said order. This question was con5idered by the Division Bench of Patna High Court in 1969 SIR 648 at paragraph 5. Mr. Chakraborty argued that the adverse remark which was made by the authorities, concerned that was communicated to him long after the adverse remark was considered by the select committee and thereafter approved by the U. P.S. C. On the face of it, in our opinion the adverse remark not having been communicated in violation of the statutory regulation cannot be considered by the selection committee. That is a violation of the statutory regulation and therefore no order which is passed on uncommunicated adverse remark can be considered by the' selection committee in order to lee whether a particular officer is if to officiate in I.P.S. cadre and for confirmation of his name in select list. Furthermore; the removal of the name of the petitioner from the select list will entail punishment inasmuch as the future chance of promotion to the I.P.S. cadre of the present officer will be in jeopady. Reference may be made to 1958 SC 36 (P. L. Dingra v. Union of India) where it has been held that the deletion of the name from the select list will amount to punishment. 4. Mr. Chakrabarty next argued that the reason for deleting the name from the select list must also be communicated to the petitioner. Reference may be made to 1958 SC 36 (P. L. Dingra v. Union of India) where it has been held that the deletion of the name from the select list will amount to punishment. 4. Mr. Chakrabarty next argued that the reason for deleting the name from the select list must also be communicated to the petitioner. It does not appear from the regulation in particular Regulation 5 (7) that the petitioner is entitled to a communication of the reasons recorded by the select committee in preparation of the list of suitable officers while a particular officer has been superseded. It appears to me that Regulation 5(7) will he followed even if it is found the committee bas recorded his reasons for the proposed supersession. It is not expected that the selection committee should record the reasons in the order as made by the Judicial Officer. It is according to us be can possibly give reasons which will "how why a particular officer has superseded the person already in the list and more so when it appears in coming to a conclusion in preparation of the list of suitable officers the committee will consider member of the State Police Service in order of seniority up to the number not less than five times of the number referred to sub-regulation (1) and it wil1 not consider a case of a member unless on the first day of that year he has been in his substantive appointment in the State Police Service and has completed eight years of continuous service whether officiating or substantive in the post of D.S.P. or any other post included in the State Police Service which are equivalent in status and responsibility of the D.S.P. Mr. Chakrabarty, however, referred to a decision reported in 1973 SC 2641 and contended that reasons must be recorded under Regulation 5(7) and further contended that this should be communicated' because this entails penal consequence. In our opinion, the statutory Rules do not show such communication is to be made but suffice it is for us to say that in the present case as the petitioner's name has been removed from the select list that itself has a penal consequence by which chance of future promotion of the petitioner bas been jeopardized and therefore cannot be sustained. 5 Mr. 5 Mr. Chakrabarty relied upon 1976 SC 437 that is a case under the Income Tax Act by which the Income Tax authorities had power to transfer a case from one Income Tax Officer to another Officer. It has been held by the Supreme Court with reference to S.127 of the Income Tax Act that in such cases reasons are to be communicated. The case or the principle has no application in the present case and the petitioner need not be given any opportunity to be heard before the selection committee according to the statutory provision. On the other hand, the selection committee will be guided by the record made in consultation with the character roll and the officer's overall performance in the execution of his duties of a Police Officer. 6. It appears further that the selection committee has considered the case of D.K. Majumdar and reasons of supersession. have also been communicated. the integrity certificate bas been withheld by the State Government and of average standard and therefore he is not fit for higher responsibility. We have already stated that this order was made on the adverse remark in the confidential character roll in regard to at least two years before the order of deletion of his name from the select list was considered by the selection committee. 7. Mr. Chakraborty then urged that the integrity certificate itself on which reason was passed under Regulation 5(7) and so far as the Indian Administrative Service Confidential Rolls Rules, 1970, are concerned the integrity certificate is of no consequence. It appears in I.P.S. (Appointment by Promotion) Regulation 5(7) certain decision was made by the Government of India which authorises the State Government to give all eligible officers whose names are to be considered by the selection committee the certificate of integrity in the following form: "The State Government certifies the integrity of Shri.................................... ............................with reference to entries in the annual confidential report.” Assuming for a moment that his decision is not ultra vires still the State Government’s withholding integrity certificate of the petitioner must be with reference to the entries in the annual confidential report which admittedly was not communicated to the petitioner when his name was being considered by the selection committee and on the recommendation of that selection committee and name was deleted form the select list of 1975. Mr. Mr. Chakrabarty further relied upon who decisions reported in 1978 (2) SLR 541 and 1977 SLR 57 paragraph 11. Punjab and Haryana High Court held the Government’s decision regarding the integrity certificate is ultra vires Regulation 5 of the I.P.S. (Appointment by Promotion) Regulation 1955. But in any case, assuming that such certificate is necessary, the certificate on the face of it must be with reference to entries in the annual confidential character roll and if such adverse entries are not communicated in violation of the statutory regulation contained in All India Service Confidential Rolls Rules, 1970, it cannot be relied upon and nay certificate given on the basis thereof cannot, therefore, stand. The selection committee having considered and relied upon such certificate was pleased to delete the petitioner’s name from the select list as the integrity certificate has been withheld on the face of it is bad being violative, as we have said, to the statutory form already mentioned. 8. It has been suggested in the affidavit filed by the parties that the petitioner was more than fifty two at the time when the selection was made and he was not entitled to be considered on the subsequent years because in Regulation 5(3) it has been specifically stated as follows : "The committee shall not ordinarily consider the case of a member of State Police Service who attained the age of fifty two years on the first January of the year in which it is made, provided that a member of the State of the Police Service whose name appears in the list in force before the date of the meeting of the committee shall be considered for inclusion in the fresh list to be prepared by the committee even if he in the mean• while attained the age of fifty two years." 9. In our opinion, this proviso in terms apply in view of our finding that the petitioner's name was illegally deleted from the select list of 1975, We are, therefore, of the opinion that the order of the Union Public Service Commission and the consequent order of reversion made on the basis thereof removing the petitioner's name from the select list and not considering the same in 1975 was bad in law. Consequently the order of reversion by the Stat e Government from the additional post of the I.P.S. cadre to the State Police Service must also be set aside. The petitioner must therefore be reconsidered without reference to the adverse remark which was not communicated to him for his appointment at the selection in the select list for 1975 under Regulation 5 of the I.P.S. (Appointment by Promotion) Regulation, 1955. It is stated before us that though the petitioner is holding the post in view of the interim order passed by this Court in I.P.S. cadre the petitioner is being paid salary in the cadre as if he has been reverted to the post of D.S.P. 10. In view of our order setting aside the order passed by the U.P.S.C. as also by the State Government the petitioner is entitled to all the salaries as if he has not been reverted pending t he selection committee's decision for the period 1975 in accordance with Regulation 5(3). He must be held to be continued in the select list for officers suitable for promotion to I.P.S. cadre. We, therefore, make it clear that it is open for the U.P.S.C. and for that matter the State Government to decide whether the petitioner is suitable to retention of his name in select list under Regulation 5(7) of the I.P.S. (Appointment by Promotion) Regulation, 19.55. We have not considered the suitability of the officers which are before us vis-a-vis the petitioner. 11. The Rule in made absolute only on the ground the adverse remark which was considered by the selection committee without the communication of the adverse remark in the C.C.R. of the present officer which was communicated long after and that cannot be done, and that the integrity certificate withheld by the State Government was also with reference to the entries in the annual confidential report which contained the adverse remark against the petitioner. 12. The appeal is allowed. The Rule in made absolute to the extent indicated above. There will be no order as to costs. B.C. Ray, J. I agree. Appeal allowed.