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2012 DIGILAW 565 (ORI)

Pradeep Kumar Biswal v. Union of India

2012-12-21

B.K.MISRA, PRADIP MOHANTY

body2012
JUDGMENT B.K. MISRA, J.-These two writ applications have been filed under Articles 226 and 227 of the Constitution of India challenging the Order Dated 22.6.2011 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.33 of 2011 under Annexure - 5. By the impugned order, the Tribunal has set aside the selection held on 9.11.2010 for filling up of two posts of Indian Administrative Service ("IAS" in short) out of the officers of Non-State Civil Service ("NSCS" in short) and has further directed to conduct the selection afresh confining the same to all the officers including Opp. Party No.6 and thereafter' publish the select panel. The Petitioners in both the writ applications, who were impleaded as parties to the Original Application by way of intervention, have filed these writ applications challenging the aforesaid order passed by the Tribunal. Since in both the writ applications the selfsame order under Annexure - 5 has been challenged, they were heard together and are disposed of by this common Judgment. 2. The undisputed facts which have been unfurled are as follows : For filling up of two vacancies in the cadre of IAS, pertaining to the year 2010, from among the NSCS Officers, in consonance with Indian Administrative Service (Appointment by Selection) Regulation; 1997, the Special Secretary to Government in General Administration Department (O.P.4) in his letter dated 17.7.2010 sought for nomination of names of suitable and eligible NSCS Officers, who fulfill the prescribed criteria. In response to the aforesaid letter of Opp. Party no A, names of 14 officers were received by the General Administration Department from different departments of the State Government which includes the name of Sri Niranjan Sethi (O.P.6) and one Sri Sasanka Sekhar Panda. Before sending the names of the aforementioned two officers belonging to NSCS, vigilance clearance was sought for. Against Sri Sasanka Sekhar Panda adverse report was received from the General Administration (Vigilance) Department vide their letter No. 7730/VCo(B) dated 19.8.2010 and with regard to Sri Niranjan Sethi (O.P.6) it was reported that no vigilance enquiry was pending. Accordingly, Opp. Party No.5 sent the names of Sri Niranjan Sethi and Sri Sasanka Sekhar Panda to Opp. Party No.1 for further action in the matter. The Preliminary Scrutiny Committee of the Government in their meeting dated 26.8.2010 decided to recommend only ten eligible persons to be considered for appointment to IAS by selection. Accordingly, Opp. Party No.5 sent the names of Sri Niranjan Sethi and Sri Sasanka Sekhar Panda to Opp. Party No.1 for further action in the matter. The Preliminary Scrutiny Committee of the Government in their meeting dated 26.8.2010 decided to recommend only ten eligible persons to be considered for appointment to IAS by selection. It is seen that on 4.9.2010 the General Administration (Vigilance) Department intimated the Government that an issue based enquiry discloses the involvement of Opp. Party No.6 on the allegation of awarding contract of Rs.3.00 crores to a private production house by manipulating the records. After receipt of such report also the Opp. Party No.4 sent ten eligible NSCS Officers to the Union Public Service Commission ('Commission' in short) Opp. Party No.2 including the names of Sri Niranjan Sethi as well as Sri Sasanka Sekhar Panda. The names of the recommended officers are as follows: 1. Ajay Kumar Bhuyan 2. Basant Kumar Dash 3. Bijaya Mishra 4. Gopabandhu Sathpathy 5. Manoj Ranjan Nanda 6. Niranjan Sethi 7. Pradeep Kumar Biswal 8. Prasanta Kumar Patra 9. Sasanka Sekhar Panda 10. Sunil Kumar Panda While recommending the names to the Commission, as aforesaid, there was a noting against Opp. Party No.6 about an issue based enquiry. On receipt of recommendation, as aforesaid, Opp. Party No.2 sought for a clarification from Opp. Party No.4. On receipt of such communication from Opp. Party No.2, Opp. Party No.4 forwarded a revised list of nine officers to Opp. Party No.2 by excluding the name of Opp. Party No.6, who was involved in the awarding of a contract to a private production house by manipulating the records, and the matter was under investigation by the Vigilance. Accordingly, Opp. Party No.2 called upon all the nine officers whose names appeared in the revised list to appear before the selection committee. Opp. Party No.6 aggrieved by such action submitted representation to Opp. Party No.2 and approached the Tribunal by filing O.A.No.718 of 2010. The Tribunal disposed of the said O.A. directing Opp. Party No.2 to consider the representation of Opp. Party No.6. On receipt of such direction of the Tribunal, Opp. Party No.2 considered and rejected the representation of Opp. Party No.6. Consequently, Opp. Party No.6 approached the Tribunal by filing O.A. No.33 of 2011 praying therein to quash the selection which was held on 9.11.2010 and to direct Opp. Party No.2 to consider the representation of Opp. Party No.6. On receipt of such direction of the Tribunal, Opp. Party No.2 considered and rejected the representation of Opp. Party No.6. Consequently, Opp. Party No.6 approached the Tribunal by filing O.A. No.33 of 2011 praying therein to quash the selection which was held on 9.11.2010 and to direct Opp. Party Nos.1 to 5 to conduct the selection afresh. The Tribuna I upon hearing 'the parties by the impugned order (Annexure-5) quashed the selection list which was finalized on 9.11.2010 for filling up of two posts in the cadre of IAS from amongst the NSCS officers and directed Opp. Party Nos.1 to 5 to hold a fresh selection confining to all the officers including Sri Niranjan Sethi (O.P.6), whose, name was included in the list of ten candidates which was earlier sponsored by Opp. Party No.4. 3. Opp. Party No.1, namely, Union of India represented through its Secretary to Government of India, Department of Personnel and Training filed a counter affidavit contending therein that the Ministry of Personnel, Public Grievance and Pensions, Department of Personnel and Training of Government of India in consultation with the Government of Orissa determined two vacancies for the year, 2010 in the cadre of IAS to be filled up by giving promotion to two officers belonging to NSCS. Accordingly, the State Government requested all the Departments functioning under it to recommend the names of NSCS Officers for consideration to be appointed as IAS under Indian Administrative Service (Appointment by Promotion), Rules, 1997. After scrutiny of the service record, the Screening Committee of the Government of Orissa short listed 10 eligible NSCS officers, out of 14, whose names were forwarded to the Commission by opposite -party No.4. The Commission examined the proposal of Opp. Party No.4 and made certain queries. Thereafter, the State Government decided to exclude the name of Sri Niranjan Sethi, Opp. Party No.6 from the eligibility list as an issue based enquiry was pending. 4. The Opp. Party No.6 in. his counter affidavit contends that before nominating his name and the name Sri Sasanka Sekhar Panda, a report from vigilance angle was sought for by the parent department and in response to that the Government of Orissa in General Administration (Vigilance) Department intimated that no enquiry was pending against him (Opp. 4. The Opp. Party No.6 in. his counter affidavit contends that before nominating his name and the name Sri Sasanka Sekhar Panda, a report from vigilance angle was sought for by the parent department and in response to that the Government of Orissa in General Administration (Vigilance) Department intimated that no enquiry was pending against him (Opp. Party No.6), whereas adverse report from vigilance angle was received against Sri Sasanka Sekhar Panda. But, despite that their names were recommended by Opp. Party No.4 to Opp. Party No.2 along with other eligible NSCS officers. The further case of the Opp. Party. No.6 was that as against his name it was mentioned that "an issue based enquiry of awarding contract is pending". The Commission (Opp. Party No.2) on receipt such communication from Opp. Party No.4 sought for clarification whereafter Opp. Party No.4 excluded his name and sent nine names. This, according to Opp. Party No.6, was without application of mind and discriminatory, as similarly situated persons like Sasanka Sekhar Panda and Pradeep Kumar Biswal against whom vigilance enquiry was pending were recommended. Further, it is the case of Opp. Party No.6 that the Petitioners have no locus to file the writ applications as they are not necessary or proper parties. It is also his case that merely because the Petitioners' names were included in the list of eligible candidates that does not confer any right to be selected as such. It is also stated in the counter affidavit that the Tribunal committed gross illegality in allowing the Petitioners as intervenors in O.A. No.33 of 2011. Thus, according to Opp. Party No.6 the writ applications being devoid of merit should be dismissed and the findings of the Learned Tribunal and the directions contained in the impugned order are neither illegal nor unjustified. 5. Opp. Party No.5 filed his counter affidavit' wherein it is averred that the I.G. of Police (Vigilance) in his letter No.5770 dated 25.6.2011 had recommended for initiation of departmental proceeding against Opp. Party No.6 on account of the illegality, committed with regard to drawal of T.A. and D.A. and the pendency of issue based enquiry for awarding of work to M/s. Sankalpa. 6. Opp. Party Nos.3 and 4 in their counter affidavit have taken a stand that a report was received on 4.9.2010 from the General Administration (Vigilance) Department about the issue based enquiry against Opp. 6. Opp. Party Nos.3 and 4 in their counter affidavit have taken a stand that a report was received on 4.9.2010 from the General Administration (Vigilance) Department about the issue based enquiry against Opp. Party No.6 and similarly in their counter they have averred that the General Administration (Vigilance) Department in their report dated 3.9.2010 intimated that a vigilance enquiry was initiated against Sri Sasanka Sekhar Panda and the matter was referred to the Housing and Urban Development Department in the year, 1990 for taking action against Sri Panda. But the administrative department of Sri Sasanka Sekhar Panda, i.e., Information and Public Relation Department reported that no disciplinary or criminal proceeding was pending against him and when no charge sheet was issued against Sri Panda, his name was recommended to the Union Public Service Commission as per the guidelines issued by it. It is also their case that the name of Opp. Party No.6 was recommended to Opp. Party No.2, but, when Opp. Party No.2 sought for clarification, the name of Opp. Party No.6 was deleted from the list of eligible candidates. 7. This Court has heard Sri Sanjit Mohanty and Sri A.K. Parija, Learned Senior Advocates for the Petitioners in both the writ applications. This Court has also heard Sri G. Rath, Learned Senior Advocate, for Opp. Party No.6, Sri A. K. Mishra, Addl. Government Advocate for the State and Mr. S.D. Das, Learned Asst. Solicitor General for the Union of India. This Court has also perused the materials available on records and the file produced by the State which contains the original records of the G.A. Department of the Govt. of Orissa bearing the file No. AIS 1.31/2009 (Promotion of NSCS Officers to I.A.S. during 2010). 8. Mr. Mohanty, Learned Senior Advocate for the Petitioner in W.P.(C) No.24325 of 2011 submits that the Tribunal has committed an error in setting aside the selection that was held on 9.11.2010, which was undertaken by the Union Public Service Commission, inasmuch as the State Government was justified in its action in excluding the name of Opp. Party No.6 from the list, in view of the fact that a candidate in order to be selected for the IAS must be having clear record and absolute integrity, which was lacking with Opp. Party No.6 According to Mr. Party No.6 from the list, in view of the fact that a candidate in order to be selected for the IAS must be having clear record and absolute integrity, which was lacking with Opp. Party No.6 According to Mr. Mohanty, there is a statutory provision in Regulation-4, which provides that if the scrutinizing committee finds that there is some question mark in the integrity of an officer, then outstanding merit should not be mentioned while making the recommendations. In other words, the merit should be totally unblemished. The decision of the State Government in forwarding the revised list of nine eligible officers excluding the name of Opp. Party No.6 is not erroneovs. Therefore, no illegality was committed in excluding the name of the Opp. Party No.6 from the recommendations made earlier. It is further submitted that the decision of the State Government was absolute and unfettered and the Tribunal has committed serious illegality in interfering with the same. 9. W.P.(C) Mr. Parija, Learned Senior Counsel for the Petitioner in No. 24106 of 2011 also supported the aforesaid submissions of Mr. Sanjit Mohanty. 10. Mr. Rath, Learned Senior Counsel appearing for Opp. Party No.6, on the other hand, submitted that even though vigilance enquiry was pending against Sasanka Sekhar Panda, but - nonetheless, his name was recommended and his case was also considered. Therefore, the State Government was completely in error in excluding the name of Opp. Party No.6 from the list of recommendation. According to Mr. Rath, because of such action of the State Government, Opp. Party No.6 was deprived of participating in the selection process. In such view of the matter, the Tribunal was justified in passing the impugned order and as such the same cannot be faulted with. He further submitted that the writ applications are not maintainable and the Petitioners have no locus to challenge the impugned order. 11. Before examining the rival contentions of the parties, it would be apt to peruse the notes made in the General Administration Department File, which relates to the process of selection with regard to promotion of the NSCS Officers to Indian Administrative Service during the year 2010. 12. From the note sheet dated 4.9.2010, it would be evident that no vigilance case was pending against Opp. Party No.6 It, however, appears that a vigilance enquiry was initiated against' Sanaka Sekhar Panda. 12. From the note sheet dated 4.9.2010, it would be evident that no vigilance case was pending against Opp. Party No.6 It, however, appears that a vigilance enquiry was initiated against' Sanaka Sekhar Panda. Since no charge sheet was issued against Shri Panda, it was opined that Shri Panda was free from vigilance angle and there was no bar to recommend his name. In the selfsame note sheet, it was decided to recommend the name of Opp. Party No.6, which was duly approved. But from the note sheet dated 9.9.2010 it would be seen that in the issue based inquiry, the involvement of Opp. Party No.6 was noticed on the allegation of awarding contract of Rs.3.00 crores to a private production house by manipulating records. The G.A. Department, notes reveal that there is contradiction of information received from the Vigilance. Department, Therefore, after noticing those contradictions the following order was passed in the note sheet dated 9.9.2010. "Letters received from the Vigilance in favour of Shri Niranjan Sethi, Deputy Director, 1 & PR may be seen at P. 196/C alongwith the report at P.195/C and 193/C. Government orders have been obtained at pre-page to recommend the names of 10 NSCS officers (P.184/C) for their final consideration by the UPSC for selection to IAS for the year 2010 including the name of Shri Sethi. Regarding vigilance clearance in respect of Shri Niranjan Sethi, Vigilance Cell has intimated as follows during an issue based inquiry the involvement of Shri Niranjan Sethi, Deputy Director, 1 & PR Department carne out on the allegation of awarding contract of Rs.3 crores to a private production house by manipulating records etc." In this connection, it may be stated that vigilance report dtd. 19.08.2010 at P. 193/C indicates that no case/enquiry is pending in vigilance against Shri Niranjan Sethi. Further the vigilance report dtd. 03.09.2010 at P.195/C indicates that no case inquiry is pending against Shri Sethi. Hence, there is contradiction of information received from the Vigilance in three occasions. According to explanation under proviso to regulation 5 (5) of the IAS (Appointment by Promotion) Regulation, 1955 the proceedings shall be treated as pending only if a charge - sheet has actually been issued to the officer or filed in a Court, as the case may be. Hence, there is contradiction of information received from the Vigilance in three occasions. According to explanation under proviso to regulation 5 (5) of the IAS (Appointment by Promotion) Regulation, 1955 the proceedings shall be treated as pending only if a charge - sheet has actually been issued to the officer or filed in a Court, as the case may be. Similarly as per the instructions issued by the UPSC (extract at page 197/c) the proceedings are deemed to be pending only if a charge has already been served upon the officer/filed in a Court of law. In the instant case there is only allegation in respect of Shri Sethi No charge-sheet has been issued against Shri Sethi. No charge-sheet has been filed in any Court of law against Shri Sethi. As such, there is no bar for recommending the case of Shri Sethi to the UPSC for selection to IAS by appearing interview before the selection board. In view of above, the name of Shri Sethi may be recommended to the UPSC along with the copy of the vigilance report received against him. This may be brought to the kind notice of the Chief Secretary before recommending the proposal to the UPSC." 13. The State Government had decided to recommend the names of the NSCS officers to the Commission along with the integrity certificate of the officers. The State Government was of the opinion that such officers had .outstanding 'merit and ability. However, the Commission wanted a clarification with regard to the involvement of Opp. Party No.6 in the alleged manipulation of record in respect of a contract of Rs.3.00 crore. It was thus noted in the Government file that the matter was discussed with the Director General (Vigilance) over phone, who informed the involvement of Opp. Party No.6 was under inquiry. Therefore, the State Government decided by Order Dated 20.10.2010 to exclude the name of Opp. Party No.6 from the eligibility list and accordingly the name of Opp. Party No.6 was excluded. Therefore, the Commission had only considered the names of nine NSCS officers for promotion to IAS. 14. On perusal of the various orders passed by the G.A. Department, which have been referred to by us in the previous paragraphs, would show that the Government while recommending the names of 10 officers including the name of Opp. Party No.6 was excluded. Therefore, the Commission had only considered the names of nine NSCS officers for promotion to IAS. 14. On perusal of the various orders passed by the G.A. Department, which have been referred to by us in the previous paragraphs, would show that the Government while recommending the names of 10 officers including the name of Opp. Party No.6 indicated that the said officers had outstanding merit and ability and their integrity was beyond doubt. The State Government while recommending the names of 10 officers also specifically considered the pendency of issue based inquiry against Opp. Party No.6. Having considered the same, the State Government was of the view that a proceeding was to be pending only if a charge sheet is served or filed in a Court of law and since no charge sheet was issued against Opp. Party No.6 and basing upon the instruction issued by the Commission, there was no bar to recommend the name of Opp. Party No.6 to the U.P.S.C.. This conclusion of the State Government was absolute, just and proper and in consonance will law as has been laid down by the Apex Court in the case of Union of India and others v. K.V. Jankiraman, AIR 1991 SC 2010 as well as in the case of Coal India Ltd. V. Saroj Kumar Mishra, 2007 AIR sew 2662. But while the State Government excluded the name of Opp. Party No.6 from the eligibility list, it had not given any reason for such exclusion of Opp. Party No.6 from the eligibility list and inclusion of Shri Panda in the said list. From the note sheet it reveals that the said exclusion is only basing on the telephonic discussion with the Director General (Vigilance), who had informed that the involvement of Opp. Party No.6 was under inquiry. 15. In view of the conclusion reached by this Court hereinabove which is based upon the various orders passed in the file of the G.A. Department dealing with the promotion of NSCS officers to IAS during 2010, it is not necessary to examine various contentions raised by the Learned Counsel for the respective parties. However, this Court would like to deal with a preliminary objection raised by Shri Rath, Learned Counsel for Opp. Party No.6 to the effect that the present writ applications are not maintainable at the instance of interveners. However, this Court would like to deal with a preliminary objection raised by Shri Rath, Learned Counsel for Opp. Party No.6 to the effect that the present writ applications are not maintainable at the instance of interveners. Such submission of Shri Rath is devoid of merit for more than one reason. The order by which the application of the Petitioners for intervention was allowed by the Tribunal has not been challenged by Opp. Party No.6 The names of the Petitioners were also recommended for consideration to the Commission and they had participated in the selection process and the selection held on 9.11.2010 has been set aside by the Tribunal and as such they are affected by the decision of the Tribunal. Therefore, the Petitioners are aggrieved persons and as such the wait applications filed by them are maintainable. 16. Therefore, this Court is of the considered view that the findings reached by the Tribunal, that Opp. Party No.6 h-as been deprived of his right to be considered by the selection committee are absolutely just and proper. But, then the Tribunal proceeded to set aside the selection held on 09.11.2010, which is absolutely unjust and improper. Without setting aside the selection held on 09.11.2010, the interest of Opp. Party No.6 can well be protected by directing the UPSC to consider the case of Opp. Party No.6 alone. The result of the selection held on 9.11.2010 has not been published. Therefore, the selection committee shall do well to take the result of the selection that was held on 9.11.2010 and the result of selection of Opp. Party No.6 together and shall publish the results and make necessary recommendations which the Court directs within a period of two months from today. This recourse adopted by this Court would not cause any prejudice and harassment to the parties. 17. In the net result therefore this Court sets aside the order of the Tribunal to the extent it has set aside the selection held on 09.11.2010. Both the writ applications are accordingly disposed of. No costs.