Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 40 (JK)

Gh. Hassan Kinah v. State Of J. &K.

2001-02-15

O.P.SHARMA

body2001
The petitioner who is a member of State Police Service calls in question the selection process initiated by the respondents for induction of the police officers into Indian Police Service mainly on the ground that the consideration accorded to him is in violation of the rules and that he is to be considered only with his equals and not un-equals. He also questioned the denial of consideration for induction for the years 1999 and 2000 on the ground that he is ineligible having already attained the age of 54 on the ground that selection having not taken place after 1994-95, age cannot stand in his way. 2. The stand of the respondents is that he has been considered for induction in accordance with the rules, but because of his lower grading his name does not figure in the select list. His exclusion from the consideration for the year 1999-2000 is justified on the ground that he has been considered for the previous years but since he could not make the grade his further consideration after he had crossed the age bar is not permissible. 3. Mian Qayoom, learned counsel for the petitioner contends that the writ petitioner was wrongly superseded at the time of induction in the "year 1994-95 though he was under suspension yet the sealed cover procedure had to be followed while considering him. In case he was exonerated and had made the grade induction should have followed. Since this course was not followed, the induction of his juniors in the year 1994-95 was bad. That the failure of the respondents to convene meeting of the selection committee from 1995 to the year 2000 when it last met cannot be a ground to justify his consideration with un-equals who were not eligible in 1995-96 or 1996-97. Similarly since the selection committee did not meet argued the learned counsel, he cannot be denied consideration for the year 1999-2000 on the ground that he had crossed the age of eligibility. In support of this contention, he heavily relied on the 2nd proviso to sub-regulation (3) of Regulation-5 of the Indian Police Service (Appointment by Promotion) Regulations 1995 (for short hereinafter Promotion Regulations). Mr. Bhan, Sr. Standing Counsel has, however, argued that the petitioner has been considered for induction in accordance with the Promotion Regulations by the Selection Committee. In support of this contention, he heavily relied on the 2nd proviso to sub-regulation (3) of Regulation-5 of the Indian Police Service (Appointment by Promotion) Regulations 1995 (for short hereinafter Promotion Regulations). Mr. Bhan, Sr. Standing Counsel has, however, argued that the petitioner has been considered for induction in accordance with the Promotion Regulations by the Selection Committee. He however, failed to make the grade and, therefore, could not be included in the select list. Since he has not challenged the decision of the Selection Committee either on the ground of bias or malice, the petition according to Mr. Bhan is not maintainable in the absence of any challenge to the vires of the Promotion Regulations. The contention of Mr. Qadri learned Senior Additional Advocate General on the other hand argued that the petition is pre-mature because induction has not taken place. His contention is that untill the select list is approved by respondents and appointment order issued writ petition would not lie. He further argued that the petitioner has not been able to show how his grading is vitiated without challenging the grading of those who have been graded excellent or very good. 4. It is admitted case of the parties that last induction took place in the year 1995 when some persons junior to the petitioner including Shri Satvir Gupta were inducted into Indian Police Service. However, the petitioner having not challenged the selection of his juniors during all these years, the same cannot be assailed now and that too when neither Shri Satvir Gupta nor any one else is before the court. So far as sealed cover procedure is concerned, the Promotion Regulations do not provide for it in the absence of which selection committee cannot be said to have violated the rules. However, despite this the petitioner was considered by the Selection Committee and his name figure at S.No. 13 in the eligibility list. However, on overall assessment, he could not be included in the select list due to lower grading and statutory limit of the size of the select list. In case he was aggrieved of his lower grading for whatever reasons the only course open to him was to challenge the selection which he did not during all these years. In view of this argument is more of academic interest than of substance. 5. In case he was aggrieved of his lower grading for whatever reasons the only course open to him was to challenge the selection which he did not during all these years. In view of this argument is more of academic interest than of substance. 5. This takes us to the question whether the merit of the petitioner has to be considered vis-a-vis the merit of those who were considered by the selection committee in the year 1995 and inducted thereafter. The case of the petitioner is that he is to be considered only with his equals and not his juniors. Regulation-3 of the Promotion Regulations provides for the constitution of the committee to make selection. The statutory selection committee comprises (1) Chief Secretary, (2) Director General of Police (3) Deputy Inspector General of Police and (4) Joint Secretary of the Government of India. The Regulation-5 prescribes procedure of preparation of select list of suitable officers. Regulation 5 (2) mandate that the committee shall consider for inclusion in the list of the cases of members of the State Police Service in the order of seniority in that service of a number which is equal to three times the number of vacancies for which selection is to be made. This list has then to be prepared in accordance with sub-regulations (4) and (5) of Regulation 5 which are reproduced below : (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) The list shall be prepared by including the required number of names, first from amongst the officers finally classified as Outstanding then from amongst thos3e similarly classified as very Good and thereafter from amongst those similarly classified as Good and the order of names interse within each category shall be in the order of their seniority in the State Police Service;� This reference will be incomplete without Sub-Regulation-2 of R-5 which reads as under: (2) The committee shall consider for inclusion in the said list, the cases of members of the State Police Service, in the order of seniority in that service of a number which is equal to three times the number referred to in sub-Regulation(1).� 6. It is thus clear that list of those eligible for inclusion is prepared on the basis of seniority of the officers. It is thus clear that list of those eligible for inclusion is prepared on the basis of seniority of the officers. But the list of those found suitable has to be equal to three times, the number of substantive vacancies for which selection is to be made. Thus seniority is relevant only for preparing list of suitable officers who are to be considered for induction. Once the list of suitable officers is prepared the rest is for the selection committee who has to classify the eligible officers as outstanding, very good and good in terms of Regulation (4) of the Promotion Regulations, After the classification is made, those classified as Outstanding exclude the officers classified as Very good and likewise those classified as Very Good exclude those classified as Good. So, those classified as Outstanding are inducted first and in case the vacancies are more than the number of officers classified as outstanding those classified as very good would come next and so on. The petitioner has not challenged the vires of Regulation-5 of the Promotion Regulations and rightly so because the Supreme Court in R.S. Das v. Union of India AIR 1987 SC 593 has laid down that when selection is made on merit alone for promotion to a higher service, selection of an officer though junior in service in preference to senior does not amount to supersession by observing as under: 18. The amended provisions of Regn.5 have curtailed and restricted the role of seniority in the process of selection as it has given primacy to merit. Now the committee is required to categorise the eligible officers in four different categories, namely "Outstanding", "Very Good" "Good" and "unfit" on overall assessment of their service records. After categorisation is made the Committee has to arrange the names of officers in the select list in accordance with the procedure laid down in Regn.5(5). In arranging the names in the select list the Committee has to follow the interse seniority of officers within each category. If there are five officers fall within the "Outstanding" category their names shall be arranged in the order having regard to their interse seniority in the State Civil Service. The same principle is followed in arranging the list from amongst the officers falling in the category of "Very Good" and "Good". If there are five officers fall within the "Outstanding" category their names shall be arranged in the order having regard to their interse seniority in the State Civil Service. The same principle is followed in arranging the list from amongst the officers falling in the category of "Very Good" and "Good". Similarly, if a junior officers name finds place in the category "Outstanding", he would be placed higher in the list in preference to a senior officer included in the "Very Good" or "Good" category. In this process a Junior Officer if categorised "outstanding" or "Very Good" would supersede his seniors. This cannot be helped. Where selection is made on merit alone for promotion to a higher service, selection of an officer though junior in service in preference to his senior does not strictly amount to supersession. Where promotion is made on the basis of seniority, the senior has preferential right to promotion against his juniors but where promotion is made on merit alone, senior officer has no legal right to promotion and if juniors to him are selected for promotion on merit the senior officer is not legally superseded. When merit is the criterion for the selection amongst the members of the service, no officer has legal right to be selected for promotion, except that he has only right to be considered along with others. In Gurdayal Singh Fiji V. State of Punjab (1982)1 SCR 904: (AIR 1981 SC 2015) this court held that a member of State Civil Service has no legal right to promotion, instead he has only right to be considered along-with others. But assuming that appellants / petitioners stood superseded by the reason that junior officers to them were included in the select list, no reasons were necessary to be recorded in view of the amended statutory provisions." 7. So in view of rule-position as also law laid down by the Summit Court, the argument that petitioner should be considered with those who were considered in 1995 and promoted subsequently is without any merit because question of considering equals with un-equals in not even distantly attracted in View of specific procedure prescribed for making selection as noticed above. 8. So in view of rule-position as also law laid down by the Summit Court, the argument that petitioner should be considered with those who were considered in 1995 and promoted subsequently is without any merit because question of considering equals with un-equals in not even distantly attracted in View of specific procedure prescribed for making selection as noticed above. 8. It was next argued that although the petitioner has attained the age of 54 years, meeting of the selection committee was not convened after 1995 till the year 2000, therefore, he is entitled to be considered in terms of the 2nd proviso to sub-regulation (3) of Regulation-5. Sub-regulation (3) and its second proviso read as under: ˜(3) The committee shall not consider the case of Members of the State Police Service who have attained the age of 54 years on the first day of January of the year in which it meets. Provided further that a member of the State Police Service who has attained the age of 54 years on the first day of January of the year in which the committee meets shall be considered by the committee, if he was eligible for consideration on the first day of January of the year or of any of the years immediately preceding the year in which such meeting is held, but could not be considered as no meeting of the committee was held during such preceding year or years under item (b) of the proviso to sub-regulation (1). The proviso is an exception to sub-regulation (3). It is based on equitable induction to higher grade for the failure of the employer to enforce regulations. The question, therefore, is whether failure of the selection committee to meet for the preparation of the select list for the years 1995-96 to 1998-99 has caused prejudice to the petitioner. It is an admitted fact that the Central Government in exercise of powers conferred u/s 3 of the All India Services Act 1951 amended Regulations-5 vide notification dated 25.7.2000 vide GSR(34) (E). It is an admitted fact that the Central Government in exercise of powers conferred u/s 3 of the All India Services Act 1951 amended Regulations-5 vide notification dated 25.7.2000 vide GSR(34) (E). By this notification following amendments were made in sub-regulation(l) of Regulation-5 : (i) In sub-regulation (1), for the proviso, the following provisos shall be substituted, namely: Provided that no meeting of the committee shall be held, and no list for the year in question shall be prepared when, (a) there are no substantive vacancies as on the first day of January of the year in the posts available for the members of the State Police Service under Rule-9 of the recruitment rules; or (b) the central Government in consultation with the State Government decides that no recruitment shall be made during the year to the substantive vacancies as on the first day of January of the year in the posts available for the members of the State Police Service under rule-9 of the recruitment rules; Provided further that where no meeting of the committee could be held during a year for any reason other than that provided for in the first proviso, as and when the committee meets again, the select list shall be prepared separately for each year during which the committee could not meet, as on the 31st December of each year." 9. So in terms of the second proviso to sub-regulation (1) even if an officer has crossed the age of 54, by the time selection committee meets, he has to be considered for the years he is eligible. The selection committee has accordingly considered the petitioner for all those years he was eligible. This is the specific case pleaded by the respondents. He has been considered for the years 1995-96, 1996-97 and 1997-98, but could not be inducted because of his lower grading. So the failure of the selection committee to meet during the time petitioner was eligible has no adverse effect on his service career. Since he was duly considered for all the years before he attained the age of 54 years, the 2nd proviso to sub-regulation (3) is not attracted and the argument to the contrary is misplaced. So this ground of challenge also fails and is rejected. Lastly the writ petition is pre-mature in view of the Bench Decision of this court in Dr. So this ground of challenge also fails and is rejected. Lastly the writ petition is pre-mature in view of the Bench Decision of this court in Dr. Shaus-Ud-Din v. State of J&K & Ow.1990 KLJ 56 holding that : 9. Learned counsel for the respondents in support of their contentions placed reliance on AIR 1980 SC; 881 (Mrs. Kunda S. Kadam & Ors. Vs. Dr. K.K. Sonam & Ors. respondents). In this case their lordships while considering the case of the selection on recommendation of the public service commission where the petitioner challenged the recommendation before passing of the order of appointment held the petition as pre-mature. In the instant case also, it has been pointed out categorically that the process of selection is yet to be completed and moreover the Apical Selection Committee is required to place its recommendations to the Governing body which is the appointing authority, unless the appointing authority finalise the selection, it cannot be put into operation nor any appointments can be made unless the governing body approves of the selection. The process of approval by the governing body was not complete till the petition was filed and no appointment order has been issued so far on the recommendation of the Apical Selection Committee. The present petition was filed on December 2,1998. We, therefore find that unless the governing body approves of the selection it cannot mature into the order of appointment and further an appeal is provided against the order of governing body to the State Cabinet giving a complete procedure for the redressal of the grievance of an aggrieved party against the decision of the governing body. The petitioner will only be entitled to get the relief in the writ petition after exhausting the remedy provided. We, therefore, hold the present petition as pre-mature which deserves dismissal on this point alone.� The facts of this case being identical the ratio applies. No other point was urged on behalf of the writ petitioner. This petition is accordingly dismissed without any order as to costs. Interim directions shall stand vacated.