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2008 DIGILAW 69 (KER)

Sumana N Menon v. State of Kerala

2008-01-24

K.BALAKRISHNAN NAIR, P.N.RAVINDRAN

body2008
JUDGMENT P.N. Ravindran, J. 1. The petitioner is the applicant in OA No. 256 of 2005 on the file of the Central Administrative Tribunal, Ernakulam Bench. 2. The petitioner was directly recruited under the Special Recruitment Scheme for Scheduled Castes and Scheduled Tribes and appointed as Deputy Collector on training in the Land Revenue Department, as per notification dated 25/10/1982 issued by the Special Secretary to Government (Revenue), Government of Kerala. After (training and successful completion of probation, the petitioner was confirmed in the post of Deputy Collector with effect from 03/01/1987. 3. The petitioner was considered for appointment by promotion to the Indian Administrative Service by the Selection Committee constituted as per Regulation 3 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as 'the Regulations'), for the vacancies relating to the year 1992-1993. The Selection Committee that met on 28/03/1993 empanelled five officers of the State Civil Service including the petitioner for appointment to the Indian Administrative Service and in the select list prepared by the Selection Committee, the petitioner's name was included as SI. No. 2, unconditionally. 4. The pleadings in the case disclose that during the relevant time disciplinary action against the petitioner was in contemplation and ultimately a memo of charges dated 26/10/1993 alleging misconduct in the discharge of her official duties was issued to the petitioner. In view of the disciplinary proceedings contemplated against the petitioner, the State Government withheld the integrity certificate and did not recommend her name to the Union Public Service Commission as required under Regulation 6 of the Regulations. The petitioner thereupon filed OA No. 1338 of 1993 in the Central Administrative Tribunal, Ernakulam Bench alleging that the integrity certificate was withheld improperly, resulting in denial of appointment to the Indian Administrative Service. OA No. 1338 of 1993 was rested on the contention that refusal of the integrity certificate should be based on the factual situation obtaining at the time of selection. By order passed on 10/11/1995 in OA No. 1338 of 1993 (copy of which is produced as Annexure A4 along with Ext. P1), the Central Administrative Tribunal held that: "Integrity certificate was withheld for valid reasons and respondents are free to take into account subsequent events, as integrity is not confined to the single moment, when the selection committee meets. By order passed on 10/11/1995 in OA No. 1338 of 1993 (copy of which is produced as Annexure A4 along with Ext. P1), the Central Administrative Tribunal held that: "Integrity certificate was withheld for valid reasons and respondents are free to take into account subsequent events, as integrity is not confined to the single moment, when the selection committee meets. Purity of public administration is of vital concern, for any society that sets its faith in the rule of law." The Central Administrative Tribunal further held thus: "In the case on hand, there are very serious allegations against applicant. There are adverse remarks which go back in point of time earlier to the meeting of the select committee. A criminal trial is now pending against applicant before the Court of Special Judge, Tiruchur. The Government have the power to review the question of integrity and the Regulations enables such a course and the decision to withhold the integrity certificate is not arbitrary. Moreover, if applicant is cleared of the charges all the benefits she may have lost, can be restored to her. But in the event of the charges being found, the damage that public administration may suffer in the terms indicated by the Supreme Court in Ajaib Singh's Case cannot be repaired and the lost faith cannot be redeemed." The decision of the Tribunal in OA No. 1338 of 1993 has become final. 5. In the disciplinary action initiated against the petitioner, the Vigilance Tribunal had recommended imposition of the penalty of withholding of increments for a period of three years in terms of R.11(1)(iii) of Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. The Vigilance Tribunal observed that though the misconduct alleged against the petitioner has been proved, the State Government has not suffered any monetary loss and therefore, it is not just or proper to award any severe punishment to the petitioner. The State Government examined the report of the Vigilance Tribunal and took a lenient view and imposed on the petitioner, the punishment of censure. This was as per Annexure A8 proceedings dated 03/02/2001 which forms part of Ext. P1. The operative portion of Annexure A8 dated 03/02/2001 is as follows: "Government have examined the report of the Vigilance Tribunal in detail with reference to the connected records of the case and accepted the findings of the Vigilance Tribunal. This was as per Annexure A8 proceedings dated 03/02/2001 which forms part of Ext. P1. The operative portion of Annexure A8 dated 03/02/2001 is as follows: "Government have examined the report of the Vigilance Tribunal in detail with reference to the connected records of the case and accepted the findings of the Vigilance Tribunal. However considering the fact that no financial loss has been caused to Government in this case, Government have taken a lenient view in the matter of punishment and order that the punishment of 'censure' be imposed on Smt. K. B. Sumana Bai (Sumana N. Menon) formerely Revenue Divisional Officer, Palakkad." 6. In her application dated 22/02/2001, the petitioner sought a review of Annexure A8 order dated 03/02/2001. By Annexure A9 order dated 10/08/2001, the State Government considered the application for review and held that the petitioner has committed misconduct and that the orders passed by her in the discharge of her official duties were "so arbitrary and irrational that no reasonable man would pass such orders and ulterior motive could readily be inferred on the review petitioner who passed the orders." The operative portion of Annexure 9 reads as follows: "However considering the fact that "censure" even though a minor punishment, will adversely affect the future prospects of the officer who has a longer period of service under the Government and whose service prior to and after this case do not carry adverse remarks, Government have decided to revoke the punishment of "censure" already awarded and to exonerate her from the charges against her and they order accordingly." A reading of the operative portion of Annexure A9 order dated 10/08/2001 discloses that the Government revoked the punishment of censure and exonerated the petitioner of the charges levelled against her solely for the reason that "censure" though a minor punishment, would affect her future prospects. In other words, it was solely on sympathetic considerations that the State Government revoked the punishment awarded to the petitioner and exonerated her of the charges. 7. Consequent on Annexure A9, the State Government issued Annexure A10 dated 03/10/2003 expunging the adverse remarks against the petitioner in her confidential report for the period from 19/09/1991 to 30/04/1992. After Annexure A9 order was issued, the petitioner was appointed to the Indian Administrative Service as per notification dated 28/02/2003 evidenced by Annexure A11, which forms part of Ext. P1. Consequent on Annexure A9, the State Government issued Annexure A10 dated 03/10/2003 expunging the adverse remarks against the petitioner in her confidential report for the period from 19/09/1991 to 30/04/1992. After Annexure A9 order was issued, the petitioner was appointed to the Indian Administrative Service as per notification dated 28/02/2003 evidenced by Annexure A11, which forms part of Ext. P1. After her appointment to the Indian Administrative Service, the petitioner submitted a representation to the Chief Secretary to Government of Kerala, Thiruvananthapuram staking her claim for appointment to the Indian Administrative Service based on the inclusion of her name in the select list for the year 1992-1993 and requested the Chief Secretary to move the Government of India to appoint her to the Indian Administrative Service with retrospective effect from 1993. Thereafter, the petitioner filed OA No. 256 of 2005 in the Central Administrative Tribunal, Ernakulam Bench seeking the following reliefs: "i. to declare that the legal consequence of termination of departmental proceeding initiated against the applicant in her favour as per Annexure A9 and expunging of the adverse remarks relating to the period from 19/09/1991 to 30/04/1992 as per Annexure A10 the applicant is entitled to be promoted to IAS based on her selection and inclusion in the Select List of the year 1993 and to all consequential full service benefits Including arrears of pay and allowances; ii. to issue appropriate direction or order, directing the respondents to give effect to the appointment of the applicant to IAS with effect from Annexure A3 GO dated 06/07/1993, the date on which her juniors were promoted to IAS against cadre posts under R.9 of the IAS (Cadre) Rules, 1954 with all consequential service including monetary benefits within a time frame that may be fixed by this Hon'ble Tribunal; iii. to issue appropriate direction or order, directing the respondent to review and refix the year of allotment of the applicant based on her appointment to IAS from the Select List of the year 1993 and to grant further consequential service benefits including seniority and further promotions expeditiously;" 8. By Ext. P11 order passed on 19/07/2007, the Central Administrative Tribunal, Ernakulam Bench dismissed OA No. 256 of 2005 and the petitioner has in this Writ Petition challenged the said order and sought the following reliefs: "i. to call for the records leading to Ext. By Ext. P11 order passed on 19/07/2007, the Central Administrative Tribunal, Ernakulam Bench dismissed OA No. 256 of 2005 and the petitioner has in this Writ Petition challenged the said order and sought the following reliefs: "i. to call for the records leading to Ext. P11 order dated 19/07/2007 in OA No. 256 of 2005 on the file of the 5th respondent Central Administrative Tribunal, Ernakulam Bench and to quash the same by the issuance of a writ of certiorari or other appropriate writ, direction or order; ii. to declare that the petitioner is legally entitled to be promoted to IAS on the basis of her inclusion in the Select list of the year 1993 assigning rank No. 2 consequent on the revoking the order of penalty of censure and exonerating her from all charges as per Annexures A9 and A10 with full service benefits; iii. to issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to give effect to the appointment of the petitioner to IAS from the date of junior selected officer was promoted to IAS as per Annexure A3 GO dated 06/07/1993 with all consequential service and monetary benefits within a time frame that may be fixed by this Hon'ble Court; iv. to issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to review and refix the year of allotment of the petitioner in the Indian Administrative Service on the basis of her appointment to IAS from the select list of the year 1993 and to grant her Junior Administrative Grade and Selection Grade and further promotions reckoning her services in the IAS for the purpose of seniority from 06/07/1993, the date on which junior selected officer was promoted to IAS;" 9. We heard Shri. O. V. Radhakrishnan, the learned Senior Counsel appearing for the petitioner. We heard Shri. O. V. Radhakrishnan, the learned Senior Counsel appearing for the petitioner. The learned Senior Counsel submitted that no disciplinary proceedings were contemplated or pending against the petitioner at the time of inclusion of her name in the select list for the year 1992-93, that her name was not included "provisionally" in the said select list, that the inclusion of the petitioner's name in the select list for the year 1992-93 was subsequently "treated as provisional" solely for the reason that the State Government had withheld the integrity certificate and hence, the inclusion of the petitioner's name in the select list for the year 1992-93 cannot be said to be provisional. 10. As per Regulation 9(1) of the Regulations, the appointment of members of the State Civil Service to the Indian Administrative Service has to be made by the Central Government on the recommendation of the State Government in the order in which the names of members of State Civil Service appear in the select list for the time being in force. The learned Senior Counsel appearing for the petitioner further contended that the case of the petitioner is not governed by the second proviso to Regulation 9 of the Regulations for the reason that her name was not included in the select list "provisionally", but was only treated as provisional by virtue of the proviso to Regulation 5(5) of the Regulations and therefore, the period of validity of the select list and the year to which it relates cannot be held out against her. In other words, the contention of the learned Senior Counsel appearing for the petitioner is that it was only due to the denial of the integrity certificate by the State Government that the Inclusion of the petitioner's name in the select list for the year 1992-1993 was "treated as provisional", that the inclusion of her name in the select list was not provisional, but only "treated as provisional" by reason of denial of the integrity certificate and as she has since been exonerated of the charges, in the light of the observations of the Central Administrative Tribunal in the order dated 10/11/1995 in OA No. 1338 of 1993 (Annexure A4) she is entitled to restoration of all the benefits she has lost. Reliance was also placed on the decision of the Apex Court in Badrinath v. Government of Tamil Nadu and Others, 2000 KHC 1736 : AIR 2000 SC 3243 : 2000 (8) SCC 395 . The learned Senior Counsel further contended that since the select list was published prior to 18/08/1993, the date on which the Regulations were amended, the petitioner's case is governed by the unamended Regulations. 11. The learned Senior Counsel appearing for the petitioner attempted to draw a distinction between the term "treated as provisional" occurring in Regulation 5(5) of the Regulations prior to and after it was amended on 18/08/1993 and the term "deemed to be provisional" occurring in the proviso to Regulation 7(3) of the Regulations introduced with effect from 18/08/1993 and the term "included or deemed to be included" occurring in the second proviso to Regulation 9 of the Regulations as amended. 12. Regulation 5(5) of the Regulations as it stood prior to 18/08/1993 reads as follows: "5(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 those similarly classified as 'Very Good' and thereafter from amongst those similarly classified as 'Good' and the order of names 'Inter se within each category shall be in the order of their seniority in the State Civil Service: Provided that the name of any officer so included in the list, shall be treated as provisional, if the State Government, withholds the integrity certificate in respect of such officer or any proceedings are contemplated or pending against him or anything adverse against him has come to the notice of the State Government." 13. As per the proviso to Regulation 5(5) of the Regulations as it stood prior to its amendment, the inclusion of the name of any officer in the select list "shall be treated as provisional" if the State Government withholds the integrity certificate in respect of such officer or any proceedings are contemplated or pending against him or anything adverse against him has come to the notice of the State Government. The proviso to Regulation 5(5) of the Regulations after its amendment with effect from 18/08/1993 reads as follows: "Provided that the name of an officer so included in the list shall be treated as provisional if the State Government withholds the integrity certificate in respect of such an officer or any proceedings, departmental or criminal, are pending against him, or anything adverse against him which renders him unsuitable for appointment to the service has come to the notice of the State Government. Explanation I.-- The proceedings shall be treated as pending only if a charge sheet has actually be issued to the officer or filed in a Court, as the case may be. Explanation II.-- The adverse thing which came to the notice of the State Government rendering him unsuitable for appointment to the service shall be treated as having come to the notice of the State only if the details of the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential." 14. Prior to the amendment, the inclusion of the name of any officer in the select list shall be "treated as provisional" if the State Government withholds the integrity certificate in respect of such officer or any proceedings are contemplated or pending against him. After the amendment, the inclusion of the name of any officer in the select list shall be "treated as provisional" only if any proceedings, departmental or criminal, are pending against him. By virtue of Explanation I to Regulation 5(5) of the Regulations as amended, the departmental or criminal proceedings shall be treated as pending only, if a charge sheet has actually been issued to the officer or filed in Court, as the case may be. By virtue of Explanation I to Regulation 5(5) of the Regulations as amended, the departmental or criminal proceedings shall be treated as pending only, if a charge sheet has actually been issued to the officer or filed in Court, as the case may be. In the light of the stand taken by the petitioner that the Regulations as it stood prior to 18/08/1993 alone can apply to her case, one can safely come to the conclusion that the inclusion of the petitioner's name in the select list for the year 1992-93 was rightly treated "as provisional", since as per the unamended Regulations, it was enough if disciplinary proceedings were in contemplation or anything adverse against the officer, which rendered him / her unsuitable for appointment to the service, had come to the notice of the State Government. 15. Regulation 5(6) of the Regulations states that the list shall be renewed and revised every year. The second proviso to Regulation 9 of the Regulations as it stood prior to the amendment reads as follows: "Provided further that the appointment of an officer, whose name has been included in the select list provisionally, under proviso to sub regulation (5) of regulation 5 shall be made after his name is made unconditional by the Commission on the recommendations of the State Government during the period the select list remains in force. While making appointment of an officer junior to a select list officer whose name has been included provisionally in the select list, one post will have to be kept vacant for such a provisionally included officer. " The second proviso to Regulation 9 of the Regulations after the amendment reads as follows: "Provided further that the appointment of an officer, whose name has been included or deemed to be included in the Select List provisionally under proviso to sub regulation (5) of Regulation 5 or under proviso to sub regulation 3 of Regulation 7, as the case may be, shall be made after the name is made unconditional by the Commission on the recommendations of the State Government during the period the Select List remains in force. While making appointment of an officer junior to Select List Officer whose name has been included or deemed to be included provisionally in the Select List one post will have to be kept vacant for such a provisionally included officer." 16. While making appointment of an officer junior to Select List Officer whose name has been included or deemed to be included provisionally in the Select List one post will have to be kept vacant for such a provisionally included officer." 16. Regulation 9 of the Regulations as it stood prior to the amendment states that the appointment of an officer whose name has been included in the list provisionally under the proviso to Regulation 5(5) shall be made after the inclusion of his name is made unconditional by the Commission on the recommendations of the State Government during the period the select list remains in force. Under the proviso to Regulation 5(5) of the Regulations, the name of any officer included in the select list shall be treated as provisional if the State Government withholds the integrity certificate or any proceedings, departmental or criminal, are contemplated or pending against him. The second proviso to Regulation 9 of the Regulations as it stood prior to the amendment was to the effect that the appointment of an officer whose name has been included in the select list provisionally under the proviso to Regulation 5(5) of the Regulations shall be made after the inclusion of her name is made unconditional. The State Government did not admittedly recommend the name of the petitioner for appointment during the year 1992-93. The petitioner cannot also take shelter under the proviso to Regulation 5(5) of the Regulations as amended to contend that the disciplinary proceedings against her was not pending when the select list was prepared on 28/03/1993 for the reason that no charge sheet has been issued to her till then, since even according to the petitioner, the unamended Regulations alone would govern the selection made in 1993. This is clear from Annexure A4 order dated 10/12/1995 whereby the Central Administrative Tribunal upheld the action of the State Government in withholding the integrity certificate. As regards the contention that the petitioner's name was not included "provisionally", but only treated as "included provisionally", in the light of the finding in Annexure A4 judgment, the petitioner cannot reopen her claim for appointment to the Indian Administrative Service during 1993. As regards the contention that the petitioner's name was not included "provisionally", but only treated as "included provisionally", in the light of the finding in Annexure A4 judgment, the petitioner cannot reopen her claim for appointment to the Indian Administrative Service during 1993. The proviso to Regulation 5(5) of the Regulations as it stood prior to the amendment was to the effect that the inclusion of the name of any officer in the select list shall be treated as provisional, if the State Government withholds the integrity certificate or any proceedings, departmental or criminal are contemplated or pending against him. It was only by the amendment of the Regulations with effect from 18/08/1993 that the proviso to Regulation 5(5) of the Regulations was amended omitting the word 'contemplated'. Hence, there is no merit in the contention that Regulations 7(3) and 9 of the Regulations as amended do not apply to the petitioner and therefore, she is entitled to be appointed to the Indian Administrative Service on the basis of the inclusion of her name in the select list for the year 1993. 17. We are of the opinion that the petitioner is not entitled to any relief for yet another reason as well. The second proviso to Regulation 9 of the Regulations as it stood prior to the amendment enabled the appointment of any officer whose name was included in the select list provisionally, after the inclusion of his name is made unconditional by the Commission on the recommendations of the State Government during the period the select list remains in force. The select list remained in force only for the year 1993 and in the subsequent years, fresh select lists were prepared wherein also, the petitioner's name was provisionally included. Since the select list did not remain in force after 1993, the petitioner cannot claim appointment. The currency of the select list had expired by the time the petitioner was exonerated of the charges and as the inclusion of the petitioner's name in the select list for 1992-93 was not made unconditional during the period it remained in force, the claim of the petitioner for promotion in the year in which the select list was prepared (1993) is not tenable. The observations of the Central Administrative Tribunal in Annexure A4 order that "If applicant is cleared of the charges all the benefits she may have lost, can be restored to her" can only mean such of those benefits which could lawfully be restored to her under the Regulations. When the Regulations are clear to the effect that it is only when clearance is given during the currency of the select list that a candidate, whose name has been Included in the select list provisionally, would be considered for promotion, the decision of the Tribunal cannot be stretched to mean that the petitioner should be considered for promotion with retrospective effect. The petitioner cannot lawfully claim or be given any such benefit. 18. The learned Senior Counsel for the petitioner, relying on the decision of the Apex Court in Badrinath v. Govt. of Tamil Nadu and Others, 2000 KHC 1736 : AIR 2000 SC 3243 : 2000 (8) SCC 395 contended that in view of the subsequent proceedings exonerating her of the charges, the disciplinary action against her is wiped out and effaced and hence any intermediate action taken in the meanwhile will fall to the ground and that the petitioner is entitled to restoration of what was denied to her, by appointing her against a vacancy of the year 1992-93. We are afraid, on the factual situation, the principle laid down by the Apex Court in the said decision cannot apply at all. The appellant in Badrinath v. Government of Tamil Nadu (supra), a member of the Indian Administrative Service, was considered for promotion to the super time scale by the Committee constituted for the said purpose and found to be not suitable for the reason that there were four disciplinary cases pending against him. The Committee noticed that one disciplinary case had been dropped, in another the punishment of censure had been recommended and two other cases were pending. The Committee, which did not recommend the appellant for promotion to the super time scale had however recorded that as soon as the two disciplinary cases are over, the matter could be reconsidered. The appellant appealed to the Central Government against the decision of the Committee. The Central Government remanded the matter to the State Government. The Committee, which did not recommend the appellant for promotion to the super time scale had however recorded that as soon as the two disciplinary cases are over, the matter could be reconsidered. The appellant appealed to the Central Government against the decision of the Committee. The Central Government remanded the matter to the State Government. After remand, the State Government constituted a Committee and the said Committee considered the case of the appellant and placed its recommendations in sealed covers with the recommendation that (by then three of the disciplinary cases had been dropped) the sealed covers are to be opened after the conclusion of the fourth disciplinary case. In the fourth disciplinary case, the State Government imposed on the appellant the punishment of censure as per order dated 08/04/1980. The sealed covers were thereafter opened and it was noticed that the Committee had not found the appellant fit upto 30/08/1979 for promotion to the super time scale. The State Government accepted the recommendation of the Committee and forwarded its decision to the Central Government on 22/05/1980. The Central Government, on receipt of the State Government's recommendation, rejected the appellant's appeal on 11/06/1980. In the interregnum, on 28/06/1977, during President's rule, the Governor of Tamil Nadu dropped all the four disciplinary cases against the appellant. Noticing that by the time the punishment of censure was imposed on the appellant on 08/04/1980, all the disciplinary proceedings against him had been dropped by the Governor of the State, the Apex Court held that the punishment of censure could not have been awarded in the fourth case and that when the Governor of the State had dropped all the disciplinary cases against the appellant on 28/06/1977, all the consequential proceedings leading to the punishment of censure awarded on 08/04/1980 fall to the ground. It was in that factual situation that the Apex Court held in the aforesaid decision that where the validity of an order is being considered by a superior authority and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground, the moment the superior authority has set aside the primary order. 19. 19. The case on hand stands on a different footing and we are of the opinion that in the factual situation obtaining in the case on hand, the principle laid down in the said decision cannot be applied at all. It was long after the select list for the year 1992-1993 had ceased to be in force that the State Government exonerated the petitioner of the charges by Annexure A9 order dated 10/08/2001. We therefore, hold that the petitioner is not entitled to be considered for promotion with retrospective effect from 1993. As rightly noticed by the Central Administrative Tribunal in Ext. P11 order, the proviso to Regulation 5(5) of the Regulations as it stood prior to the amendment justified the non promotion of the petitioner for the reason that the inclusion of her name was treated as provisional, since disciplinary proceedings were in contemplation and the State Government did not issue the integrity certificate. The Tribunal was therefore right in holding that even under the unamended Regulations, the petitioner had no right to seek appointment to the Indian Administrative Service based on the inclusion of her name in the select list for the year 1992-93. We are therefore of the considered opinion that there is no merit in the Writ Petition and that it is liable to dismissed in limine. Accordingly, the Writ Petition is dismissed inlimine.