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2016 DIGILAW 1492 (ALL)

Jagnayak Singh Gautam v. Union of India

2016-04-21

SATYENDRA SINGH CHAUHAN, VIJAY LAXMI

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JUDGMENT Heard learned counsel for the petitioner, learned counsel for Union Public Service Commission as well as learned counsel for Union of India. 2. The present petition has been filed with a prayer that the review DPC may be held in case of the petitioner. The orders passed by the Central Administrative Tribunal, Lucknow dated 15.1.2015 and 19.3.2015 respectively have been put to challenge. The claim of the petitioner for review DPC by means of which the Tribunal without commenting on the merit of the application for holding review DPC directed the Union Public Service Commission to consider the application and dispose of the same within a period of four months. After passing of the aforesaid order, the opposite party considered the said application and rejected the same on 30.3.2015, (which is also under challenge) by stating therein that there is no provision for any review DPC and as such review DPC cannot be held. 3. Learned counsel for the petitioner has placed reliance upon the Regulation 5(5) of IPS (Appointment by Promotion) Regulations 1955 (for short the 'Regulations'). Further ground has been taken that the review of the select list which has been approved by the Commission has been ignored by the Government of India. The submission of learned counsel for the petitioner is that in pursuance of Regulations, the guidelines/instructions in respect of DPC's (Promotion) have been framed by the DOPT in pursuance to the Regulations of 1955 and therein a provision has been made under Clause 15 for review of DPC and therefore, the opposite parties are supposed to take into consideration of the aforesaid instructions/guidelines but they failed and refused to consider the case of the petitioner for the year 2009-10 as it is stated by learned counsel for the petitioner that the petitioner was having censure entry in respect of the year 2004 but so far as the entry of 2005 that has been quashed by the Tribunal by means of judgment and order dated 2.1.2013. 4. Learned counsel also submits that the Principal Bench of Delhi has also passed an order in Original Application No.830 of 2015 (Abha Singh vs. Union Public Service Commission & ors) wherein a direction was issued in the case of Abha Singh (Supra) for considering her case in the review DPC. 4. Learned counsel also submits that the Principal Bench of Delhi has also passed an order in Original Application No.830 of 2015 (Abha Singh vs. Union Public Service Commission & ors) wherein a direction was issued in the case of Abha Singh (Supra) for considering her case in the review DPC. The said judgment has been accepted by the Union of India and candidate therein Abha Singh has been considered and promoted to IPS cadre. The submission is that the case of the petitioner is on identical lines and reliance which has been placed upon Clause 15 of the instructions/guidelines, it was incumbent upon the opposite parties to have considered the case of the petitioner for review DPC, instead of rejecting the claim by means of order dated 30.3.2015. Further submission is that last five years entries are to be taken into consideration in view of the guidelines/instructions dated 23.12.2005 wherein in Clause 4 under the Heading "Span/scope of Assessment" the said provision has been made. The instructions/guidelines have been framed with a view to implement the rules in a fair and just manner and also with a view to mark promotion process workable by implementing the rules. The guidelines/instruction consisted of several situations and they are supporting and having been issued in pursuance to the rules and as such they are liable to be adhered by the opposite parties. 5. The learned counsel for opposite parties on the other hand has submitted that there is no provision for review as contemplated under the Regulations and therefore, the review DPC cannot be held. 6. We have learned counsel for the parties and perused the record. 7. For considering the aforesaid question as to whether review DPC is permissible under the instructions/guidelines or not and whether the instructions are being followed by the opposite parties, it is to be noted that opposite parties are continuously following and adhering to the process laid down in the guidelines/instructions, in pursuance to Clause 15 of the said guidelines/instructions which provides as under: - Clause 15 of Review DPC reads as under : - "15. Review DPC: - The proceedings of a DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPCs. The illustrative (and not exhaustive) situations in which review DPC can be held are as under : - (a) Non-reporting of vacancies due to error or omission (i.e. though the vacancies were available at the time of holding of DPC meeting, these were not reported to the DPC). This leads to injustice to the officers concerned by artificially restricting the zone of consideration, or (b) Where eligible persons were omitted to be considered; or (c) Where ineligible persons were considered by mistake; or (d) Where the seniority of a person was revised with retrospective effect resulting in a variance of seniority list placed before the DPC' or (e) Where some procedural irregularities was omitted by a DPC; or (f) Where adverse remarks in the CRs were toned down or expunged after the DPC had considered the case of the officer. In case of over-reporting of vacancies to the DPC, a review DPC is to be held only if the change in the number of vacancies would result in exclusion of any person(s) empanelled by the original DPC on account of over-reporting of vacancies which led to inflated zone of consideration." 8. The aforesaid provision has been made with the condition that if the DPC has not taken all material facts into consideration or if material facts have not been brought to the knowledge of DPC or if there have been grave errors in the procedure followed in the DPCs, then the proceedings of review DPC could be held. The aforesaid guidelines have been the subject matter of consideration before the Principal Bench of Delhi in Abha Singh's case (Supra) in O.A. No. 830 of 2015 and in the said case ultimately, a direction was issued for review of DPC. Placing reliance upon Clause 15 of the guidelines/instructions and the said judgment was accepted by the opposite parties and review DPC of Abha Singh was held. Placing reliance upon Clause 15 of the guidelines/instructions and the said judgment was accepted by the opposite parties and review DPC of Abha Singh was held. The extract of the said judgment reads as under: - "The salient plea of the UPSC that there is no provision in the regulations for review of DPC cannot be accepted for the simple reason that in the relevant instructions on DPCs (Promotion) issued by DOP&T, it has been specifically provided that where adverse remarks of the ACRs were toned or expunged after the DPC had considered the case of officers, the proceedings of DPC may be reviewed. Para 15 of the guidelines placed on record as Annexure -1 to rejoinder read thus: - "15. Review DPC: - The proceedings of a DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPCs. The illustrative (and not exhaustive) situations in which review DPC can be held are as under : - (a) Non reporting of vacancies due to error or omission (i.e. though the vacancies were available at the time of holding of DPC meeting, there were not reported to the DPC). This leads to injustice to the officers concerned by artificially restricting the zone of consideration; or (b) Where eligible persons were omitted to be considered; or (c.) Where ineligible persons were considered by mistake; or (d) Where the seniority of a person was revised with retrospective effect resulting in a variance of seniority list placed before the DPC' or (e) Where some procedural irregularities was omitted by a DPC; or (f) Where adverse remarks in the ACRs were toned down or expunged after the DPC had considered the case of the officer. In case of over-reporting of vacancies to the DPC, a review DPC is to be held only if the change in the number of vacancies would result in exclusion of any person(s) empanelled by the original DPC on account of over-reporting of vacancies which led to inflated zone of consideration." It is not so that in the Promotion Regulation, it is provided that the select list once prepared cannot be reviewed at any cost. The administrative instructions/guidelines contrary to the statutory rules/regulation have to be ignored, but where the rules and Regulations are silent, the administrative instructions are there to supplement the void. In the absence of there being any provisions in the Regulation prohibiting the review of the SCM, the administrative instructions issued by the DOP &T would hold the field." 9. The rejection of candidature for the consideration of the review DPC therefore, in the light of the aforesaid judgment and the provisions contained in Clause 15 of the guidelines/instructions has not been followed so far in the light of law laid down and rather the opposite parties have failed to take into consideration the judgment which have been accepted by them in Abha Singh's case, in pursuance to the aforesaid judgment the rejection of the prayer of the petitioner for review DPC is wholly unfounded and not supported by any provision of law and rather the same has been denied after taking into consideration the Regulations of 1955 and ignoring the guidelines/instructions meant for the purpose of holding DPC or Review DPC. 10. The petitioner is claiming review of the year 2010, vacancy pertaining to the said year the candidature of the petitioner was rejected on the ground that there was a censure entry existing against him which was awarded in the year 2005 was quashed by the Tribunal by means of judgment and order dated 2.1.2013. The effect of the censure entry of 2005 has come to an end. The entries given after 2004 have not been taken into consideration while considering the Review DPC of the year 2010. The Union Public Service Commission has issued instructions/guidelines on 23.12.2005, wherein it has been provided that the 'Span/scope of Assessment' wherein under the Heading of 'Assessment' it has been provided that the service record of the last five years would be seen. 11. Considering the facts and circumstances of the entire case, the orders dated 15.1.2015 and 19.3.2015 passed by Tribunal (Annexure Nos. 11. Considering the facts and circumstances of the entire case, the orders dated 15.1.2015 and 19.3.2015 passed by Tribunal (Annexure Nos. 1 and 2) as well as order dated 30.3.2015 (Annexure No.3) passed by opposite party no.2 are hereby quashed and looking into the fact that the petitioner is liable for being considered in respect of the vacancy of the year 2010, we direct that the opposite party no.2 Union Public Service Commission to hold Review DPC in respect of the petitioner within a period of eight weeks from the date of production of certified copy of this order. 12. The writ petition is, accordingly, allowed.