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Jharkhand High Court · body

2013 DIGILAW 395 (JHR)

Arti Burman v. Union of India

2013-03-20

JAYA ROY, PRAKASH TATIA

body2013
JUDGMENT Heard learned counsel for the parties. 2. The petitioner is aggrieved against the order dated 13.07.2012 passed in O.A. No. 183 of 2011(R) by the Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi by which the C.A.T. has dismissed the petitioner's O.A. No. 183 of 2011(R). 3. The petitioner's contention is that she is State Civil Service Officer of the State of Jharkhand. She joined the State Civil Service on 06.06.1980. Her date of birth is 01.01.1954. She was promoted on the post of Joint Secretary rank with effect from 18.06.2011. According to petitioner, she came to know that a meeting was held on 17.06.2011 for consideration of promotion of State Civil Service Officer in I.A.S. Cadre for filling up the vacancies arisen on 01.01.2008 to 31.12.2008. She also came to know that her name was not included in the selection/consideration list on the ground that she was not found eligible. However, according to petitioner, her name was initially included in the select list by a competent committee of the State Government headed by the Chief Secretary and consisting of members i.e. Development Commissioner and Principal Secretary to the Government, Department Personnel, Administrative Reforms and Rajbhasha. However, vide communication dated 29.12.2010 (Annexure-1) copy of which has been annexed in this writ petition, the Principal Secretary to the Government, Department Personnel, Administrative Reforms and Rajbhasha informed the Under Secretary (AIS), Union Public Service Commission, New Delhi that as per telephonic discussion and in continuation of letter No. 7867 dated 26.12.2010 the name of the petitioner has been excluded in the revised list and, therefore, the revised list may be considered. According to petitioner, once the competent body of the State Government has already taken a decision with respect to recommendation for the petitioner so that her name may be considered by the U.P.S.C., then in that situation, one of the officers of the State Government, may be holding the post of Principal Secretary, could not have deleted the name of the petitioner from the list of recommendee. Learned counsel for the petitioner's further contention is that from communication dated 23.08.2011 (Annexure-2), subsequent to above said letter dated 29.12.2010, also confirms that petitioner's name was deleted subsequently and as per the stand of the U.P.S.C. also, petitioner's name since was not forwarded by the State Government, therefore, the petitioner's candidature was not considered by the U.P.S.C. It is submitted by the learned counsel for the petitioner that U.P.S.C. therefore, had no occasion to apply its mind to the facts of the case of the petitioner at the time of consideration of the candidature of other candidates. Learned counsel for the petitioner further submitted that from the list declared by the U.P.S.C., it is clear that juniors to petitioner have been given promotion in the cadre of the I.A.S. 4. Learned counsel for the petitioner submitted that the learned Tribunal committed grave error of law in interpreting the relevant provisions governing the promotion from the State Civil Services to the Indian Administrative Service and particularly, the Regulations of 1955 which defines various terms and prescribes the procedure for selection of the State Administrative Service Officer to the cadre of the Indian Administrative Service. Learned counsel for the petitioner submitted that as per the definition of the “year” given in Clause (I) of Regulation 2(1) of the Regulations of 1955 it is clear that “Year” means the period commencing on the first day of January and ending on the thirty first day of December of the same year. The Regulation 5(3) provides that the Committee shall not consider the cases of the members of the State Civil Services who have attained the age of 54 years on the first day of January of the year for which the Select List is prepared. It is submitted that “attained” has not been defined in the Regulations. However, learned counsel for the petitioner submitted that from the above it is clear that the vacancy is required to be determined year wise meaning thereby for the year 2008 the vacancy is required to be determined from 1st January, 2008 to 31st December, 2008. The petitioner since born on 01.01.1954, therefore, she attained the age of 54 years on 01.01.2008. The petitioner since born on 01.01.1954, therefore, she attained the age of 54 years on 01.01.2008. In this view, the petitioner was eligible candidate on 01.01.2008 for promotion to the cadre of I.A.S. The vacancy is admittedly of the year 2008 commencing from 01.01.2008, therefore, the petitioner has wrongly been denied the promotion to the cadre of I.A.S. Learned counsel for the petitioner heavily relied upon the judgment of the Punjab & Haryana High Court in the case of Praveen Kumar Vs. Union Public Service Commission and Others delivered in C.W.P. No. 15798 of 2009 decided on 01.02.2010 (copy of which is annexed in the writ petition). According to learned counsel for the petitioner, Punjab & Haryana High Court has considered the issue in detail and rendered the judgment which favours the case of the petitioner. Against the Judgment of Praveen Kumar, the Union of India preferred S.L.P(C) No.14002/2010 which has been dismissed by Hon'ble Supreme Court on 31.05.2010. 5. Learned counsel for the petitioner then submitted that even the Government of India followed the decision of Praveen Kumar and issued Office Memorandum on 25.8.2010 and explained the situation that how the year will be counted, how the vacancies will be counted and who is eligible for a particular year. That Office Memorandum also supports the case of the petitioner. 6. Learned counsel for all the parties including the U.P.S.C., Department of Personnel and Training, Government of India, the State Government as well as the private respondents, vehemently submitted that in view of the undisputed fact of the birth of the petitioner on 01.01.1954, she completed her age of 54 years on mid- night of 31.12.2007. On 01.01.2008, she was of the age of 55 years exceeding the cut of age limit of 54 years. Therefore, the petitioner was not eligible candidate for consideration for the vacancies of the year 2008 which vacancy may have occurred from 01.01.2008 to 31.12.2008. Once the petitioner was ineligible for vacancy for the year 2008 on the ground of age bar. She could not have been eligible candidate for any subsequent year. It is further submitted that the petitioner, being ineligible candidate, has no right to challenge the decision of the U.P.S.C. on the ground that juniors to her have been given promotion in the cadre of I.A.S. 7. She could not have been eligible candidate for any subsequent year. It is further submitted that the petitioner, being ineligible candidate, has no right to challenge the decision of the U.P.S.C. on the ground that juniors to her have been given promotion in the cadre of I.A.S. 7. We considered the submission of learned counsel for the parties and perused the facts of the case. From Annexure-1, dated 29.12.2010 and Annexure-1/1, dated 23.08.2011, undisputedly, the petitioner's name was initially recommended for promotion to the cadre of I.A.S. by the State Government. However, it appears that subsequently, after discussion with the officers of the Union Public Service Commission, it was found by the State Government that petitioner is not eligible candidate and, therefore, a revised list with some more informations with respect to other officers were sent to U.P.S.C. Since petitioner's name was deleted by the State Government, therefore, admittedly, the U.P.S.C. had no occasion to consider the candidature of the petitioner on merit. However, the core question for our consideration is that whether the petitioner was eligible candidate for the vacancies for the year 2008 even when she born on 01.01.1954. Learned counsel for the petitioner since relied upon the Judgment of Punjab and Haryana High Court and particularly, para-23 of the said Judgment, it will be appropriate to quote para-23 of the said Judgment of Punjab and Haryana High Court delivered in the case of Praveen Kumar, which is as under: 23. To better understand, another hypothetical situation could be considered. Let us assume that the date of birth of an officer is December 31, 1952. As on 01.01.2006, he would be less than 54 years of age but on 01.01.2007 he would certainly cross the age of 54 years. Therefore, if the reasoning adopted by the Tribunal and the respondents is applied then such an officer would never enter the zone of consideration for the vacancies of year 2006. 8. It appears from the said hypothetical situation considered by the Punjab and Haryana High Court in the case of Praveen Kumar that when an officer born on 31.12.1952, he was declared to be eligible candidate as on 01.01.2006 as he would be less than 54 years of age on 01.01.2006. The fact situation in this case is that the petitioner did not born on 31.12.1953 but she born on 01.01.1954. The fact situation in this case is that the petitioner did not born on 31.12.1953 but she born on 01.01.1954. One year stands completed with the last date of the calender year i.e., on 31.12.1954 and on 01.01.1955, the petitioner was of the age of two years. By applying the same calculation, the petitioner's age would be 54 years on 31.12.2007 and on 01.01.2008 she entered into the age of 55 years as she enter into 55th years of age in the midnight at 12 P.M. By this, petitioner missed the opportunity of consideration of her name for promotion to the cadre of I.A.S. by such a narrow margin which may be unfortunate but so far as the proviso to the Clause 5.3. is concerned, it is very clear and it very specifically says and provides that member of State Civil Service, who attained the age of 54 years on 1st day of January of the year for which the select list is prepared, shall be considered by the Committee, if he was eligible for consideration on the first day of January of the year or 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). In this Case, it is not the plea of the petitioner that the petitioner was eligible for consideration for promotion to I.A.S. cadre in any earlier years and in that years, no meeting was held or her case is covered under the above provisions. 9. In view of the above reasons, we are of the considered opinion that the learned Tribunal has not committed any error of fact or law and the Judgment of Punjab and Haryana High Court is not helping the petitioner in any manner. Therefore, the writ petition of the petitioner is dismissed.