TaxTMI 
TaxTMI 
2019 (3) TMI 1974
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....hed and the select list for the 2016 vacancy may also be quashed. (b) The respondents No. 1 & 2 may be directed to hold a review DPC as per law following the rules of procedure laid down under Annexure A/3 and declare the applicant as fit for promotion to the IAS for the vacancies of 2015 and 2016 with all consequential benefits of promotion with retrospective effect with seniority and financial benefits." 2. The applicant is aggrieved by his supersession to Indian Administrative Service (in short IAS) from Orissa administrative Service (in short OAS) and challenged the same on the ground that it violates the IAS (Recruitment) Rules, 1954 (in short 'Rules, 1954') read with the IAS (Appointment on Promotion) Regulations, 1955 (in short 'Regulations'). The applicant has also challenged the selection of the Respondent no. 4 and 5 who will be affected if the reliefs sought for by the applicant are allowed. Notice has been issued to the respondents no. 4 and 5, but they did not file any pleadings. Hence, it was decided to proceed on the basis of the counter filed by the Respondents no. 2 and 3 and Rejoinder to the counters. 3. The applicant had applied to the Collector, Kondhamal fo....
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....ering his outstanding CCRs for the years under consideration of the committee. His contention is that for one minor penalty of stoppage of one increment without cumulative effect imposed vide order dated 24.9.2011, he should not have been denied for promotion for the years 2014, 2015, 2016 and 2017. The proceedings of the selection committee for the years 2015 and 2016 have been enclosed with the Rejoinder and the proceedings for the year 2017 have been enclosed with the written submissions of the applicant's counsel. 7. Reply to the OA has been filed by the respondents no.2 i.e. UPSC, stating that as per the Regulations for appointment to IAS by promotion, the selection committee is to assess the candidates and categorize them as 'Outstanding', 'Very Good', 'Good' and 'Unfit' and prepare the select panel by first including the officers assessed as 'Outstanding', then the officers assessed as 'Very Good' etc. It is further mentioned that as per the guidelines of the UPSC for categorization of the candidates. Methods of assessment of the candidates who have been imposed penalty in disciplinary proceedings have been specified in the guidelines of the UPSC, In this regard the para 8 ....
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....Annexure-R/3/1 is applicable. 9. The applicant has filed Rejoinder to the counter by the respondent no. 2 and 3, stating that the copy of the guidelines on DPC enclosed at Annexure-A/3 of the OA, are not applicable for selection of officers for appointment to IAS by promotion as stated by the respondents and that the guidelines at Annexure-R/3/1 dated 14.2.2014 to the counter of the respondent No.3 which are internal guidelines of UPSC, have been relied by both the respondents in their counter. The applicant reiterated the stand that one minor penalty can be used to debar the applicant from promotion only once as per the guidelines at Annexure-A/3 of the OA, which was also framed by UPSC in consultation with the DOPT. There is no provision in the Regulations or in these guidelines that one order for imposing minor penalty can be used to deny promotion to an officer for more than one occasion. It is also stated that as per the guidelines dated 14.2.2014, it is stated that if the penalty flows into the SCM year, the officer would be graded as unfit in overall assessment. It is also submitted in the rejoinder that for the applicant, the minor penalty was imposed on 24.9.2011 for whic....
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....se after reassessing the number of vacancies for the year 2014 and the meeting of the selection committee for the year 2014 and 2015 was held on 15.12.2016 vide copy of the minutes at Annexure-A/19 to the Rejoinder with different composition of the committee. In the meeting of the Selection Committee held on 15.12.2016, the select list for 2014 prepared in meeting held on 2.7.2015 was reviewed as per the direction of the Tribunal and a fresh select list of 17 officers for year 2014 was prepared by the committee in its meeting held on 15.12.2016 in place of the select list prepared in the meeting held on 2.7.2015. 11. As discussed in the para 10 above since the select list prepared by the committee on 2.7.2015 for vacancies relating to 2014 was reviewed and modified by the selection committee on 15.12.2016 and the selection for promotion to IAS for the year 2014 has not been disputed by the applicant in this OA, it was decided, with the consent of the learned counsel for both the parties, to go ahead with the hearing of the case even though one of us was a member of the selection committee in its meeting held on 2.7.2015. 12. Learned counsels for the applicant and respondents reit....
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....ting is held, in the posts available for them under Rule 9 of the Recruitment Rules. The date and venue of the meeting of the Committee to make the selection shall be determined by the Commission; .................................................................................................................. 5(4) The Selection Committee shall classify the eligible officers as "Outstanding", "Very Good", "Good" and "Unfit" as the case may be on an overall relative assessment of their service records. 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 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 rende....
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....ure-A/3 are not applicable for selection of officers for promotion to IAS for which the guidelines dated 14.2.2014 (Annexure-R/3/1 to the counter of the respondent No.3) will be applicable. But the reason why the guidelines at Annexure-A/3 are not applicable and the guidelines at Annexure-R/3/1 will be applicable for the appointment to IAS by promotion has not been explained by the respondents. It is also noticed that the guidelines at Annexure-R/3/1 are internal guidelines of UPSC which appear to have not been circulated. Similarly, the guidelines at Annexure A/3 are also not circulated. As per the Regulations, the selection committee has the authority to decide the suitability of the officers recommended by the State Government for promotion to IAS and it will not be in order to restrict their authority through internal guidelines of the UPSC which have not been circulated. 17. How imposition of a penalty on an officer is treated at the time of consideration of his case for promotion, has been provided under the para 3 of the Government of India guidelines listed after the Rule 11 of the CCS (CCA) Rules, 1965 vide serial No. 7 of the Government of India's Decisions, which states....
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....erved: "the guidelines give a certain amount of play in the joints to the DPC by providing that it need not be guided by the overall grading recorded in the CRs, but may make its own assessment on the basis of the entries in the CRs. The DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, malafide or arbitrariness, the selection calls for interference. Where the DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by the DPC, the court will not interfere". (b) In Union of India vs. K.V. Jankiraman case (AIR 1991 SC 2010), the Supreme Court has taken cognizance of role of DPC the case of an officer on whom a penalty has been imposed and has held that: "An employee has no right to promotion. He has only right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least tha....
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....considered by them, including those officers on whom penalty has been imposed as provided in DoPT O.M. dated 10.4.89 and O.M. dated 15.12.2004. b) The DPC should not be guided merely by the overall grading, if any, that may be recorded in the ACRs/APARs but should make its own assessment on the basis of the entries in the ACRs/APARs as it has been noticed that sometimes the overall grading in a ACR/APAR may be inconsistent with the grading under various parameters or attributes. Before making the overall recommendation after considering the APARs (earlier ACRs) for the relevant years, the DPC should take into account whether the officer has been awarded any major or minor penalty. (Refer para 6.2.1(e) and para 6.2.3 of DoPT OM dated 10.04.89) c) In case, the disciplinary/criminal prosecution is in the preliminary stage and the officer is not yet covered under any of the three conditions mentioned in para 2 of DoPT O.M. dated 14.09.1992, the DPC will assess the suitability of the officer and if found fit, the officer will be promoted along with other officers. As provided in this Department's O.M. dated 02.11.2012, the onus to ensure that only person with unblemished records a....
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....time, where a penalty has been imposed in a year included in the assessment matrix or till the date of DPC should be discontinued immediately, being legally non-sustainable. i) While there is no illegality in denying promotion during the currency of the penalty, denying promotion in such cases after the period of penalty is over would be in violation of the provisions of Article 20 of the Constitution. j) The appointing authorities concerned should review comprehensively the cases of Government servants, whose suitability for promotion to a higher grade has been kept in a sealed cover on the expiry of 6 months from the date of convening the first Departmental Promotion Committee which had adjudged his suitability and kept its findings in the sealed cover. Such a review should be done subsequently also every six months. The review should, inter alia, cover the progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite the completion. (Para 4 of O.M. dated 14.09.1992) k) In cases where the disciplinary case/criminal prosecution against the Government servant is not concluded even after the expiry of two years from the dat....
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....he case of the applicant (vide the paragraph 5.1 and 6.2 of the Reply filed by the respondent No.2) provide for classifying an officer as unfit if in any of the years in the assessment matrix, the penalty imposed has some implication, even when the date of consideration is after the expiry of the period of penalty. In the case of the applicant, the selection committee has assessed the applicant to be 'unfit' because the penalty imposed on 24.9.2011 came within the assessment matrix of the applicant as stated in para 5.1 of the Reply filed by the respondent No.2 and it is as per the internal guidelines of UPSC. It is also noticed from the Minutes of the selection committee for the year 2015, 2016 and 2017 as Annexed to the Rejoinder and the written submissions of the applicant's counsel, that the DPC has not assessed the overall performance of the applicant alongwith the penalty imposed while deciding his suitability for selection to IAS by promotion, as stated by the applicant in the OA and rejoinder and as required by the guidelines of the DOPT vide paragraphs 17 and 18 of this order. 21. In the context of the discussions above, we are of the considered opinion that the case of t....