Union Public Service Commission Vs Bibhu Prasad Sarangi & Others (Orissa High Court)
Summary: The Orissa High Court declined to interfere with the order dated 13 March 2019 passed by the Central Administrative Tribunal (CAT), Cuttack Bench, in O.A. No. 517 of 2017, directing reconsideration of Bibhu Prasad Sarangi’s selection for induction into the Indian Administrative Service (IAS). The dispute arose from disciplinary proceedings in which the officer had been awarded a minor penalty of withholding one increment without cumulative effect by an order dated 24 September 2011. Although his Confidential Character Rolls continued to reflect an outstanding service record and the State Government had recommended his candidature for several years, the Selection Committee assessed him as unsuitable for IAS induction because the earlier penalty fell within the relevant assessment period. The Union Public Service Commission challenged the CAT’s direction, arguing that induction into the IAS was distinct from ordinary promotion, that the Department of Personnel and Training (DoPT) guidelines relied upon by the Tribunal were inapplicable, and that an officer possessed only a right to consideration rather than an enforceable right to appointment. The respondent officer contended that a minor penalty could not automatically disqualify him from consideration in subsequent years, particularly after the penalty period had expired.
The High Court examined the CAT’s detailed consideration of the applicable DoPT instructions, UPSC’s internal guidelines and Supreme Court decisions governing the assessment of government servants facing disciplinary penalties. The CAT had noted that the DoPT Office Memorandum dated 28 April 2014 required Departmental Promotion Committees to assess each officer’s suitability individually, considering the circumstances of the penalty and the overall service record rather than mechanically reducing performance gradings or declaring an officer unfit. The Tribunal had also referred to Union of India v. K.V. Jankiraman, A.K. Narula and Union of India v. S.K. Goel regarding the scope of selection committees’ discretion, the relevance of disciplinary penalties and the limits of judicial interference in assessments made by expert bodies. The CAT found that the Selection Committee had relied upon UPSC’s internal guidelines dated 14 February 2014 and had treated the earlier penalty as determinative without independently evaluating the officer’s overall performance for the relevant years. Consequently, it set aside the rejection of his representation dated 5 July 2017 and directed a review selection exercise for 2015, followed by reconsideration for 2016 and 2017 where necessary.
The High Court held that the CAT had examined the competing submissions and relevant materials and had committed no jurisdictional error warranting interference. It accordingly upheld the direction to reconsider the officer’s suitability in accordance with law, without itself declaring him entitled to IAS appointment. The Court also expressed concern that the authorities had not implemented the CAT’s order despite the absence of any stay from the High Court. It observed that merely filing a writ petition did not suspend the obligation to comply with the Tribunal’s directions. Accordingly, the High Court disposed of the writ petition and directed implementation of the CAT’s order expeditiously, within four months from the date of its own order.
Cases Discussed
- Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 (SC) — Relevance of disciplinary penalties and entire service record. Related DoPT memorandum.
- A.K. Narula, AIR 2007 SC 2296 (SC) — Discretion of selection committees and evaluation of service records.
- Union of India & Anr. v. S.K. Goel & Ors., Civil Appeal No. 689/2007 (SC) — Expert committee discretion and judicial review.
FULL TEXT OF THE JUDGMENT/ORDER OF ORISSA HIGH COURT
By way of this writ petition, the petitioner has challenged the order dated 13.03.2019 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 517 of 2017, whereby learned Tribunal has allowed the Original Application in part filed by him.
2. Learned counsel for the petitioner has mainly contended that learned Tribunal has exceeded the jurisdiction vested in him by granting the relief to the applicant, whereby it miserably failed to appreciate that the induction is not a promotion. The guidelines of DOPT are not applicable in the present case. It is applicable in the case of promotion only. He further contended that learned Tribunal has seriously committed an error in remanding the matter back for reconsideration and has not considered the judgment of the Hon’ble Supreme Court in Civil Appeal No. 10854 of 2014 under Annexure-6 in true spirit. He further contended that the petitioner has no right to be promoted to I.A.S. as he has only right to be considered for induction in I.A.S.
3. Learned counsel for the petitioner contended that for the mis-conduct of the opposite party no. 1, which has been substantiated at paragraph-3 of the impugned order, he has no right to be considered for induction in I.A.S. The same is quoted below for ready reference:
“3. The applicant had applied to the Collector, Kondhamal for availing casual leave from 23.9.2008 to 30.9.2008 on health ground and had proceeded on leave before receiving the sanction order. It is stated in the OA although the leave was sanctioned, but a departmental proceeding was initiated vide order dated 5.6.2009 (Annexure-A/4) and inquiry was conducted. On receiving the copy of the inquiry report dated 31.3.2011, the applicant submitted his reply. Finally, the order dated 24.9.2011 (Annexure-A/6) was passed by the competent authority imposing the minor penalty of stoppage of one increment without cumulative effect.”
4. Learned counsel for the opposite party no.1, however, contended that he was imposed with minor penalty. But unfortunately he could not challenge that order. Therefore, he has once been deprived of getting promotion. But, that cannot be a ground for consideration of his case for the subsequent years. Learned Tribunal in paragraphs-16 to 21 has elaborately dealt with the said issue and observed as under :
“16. In this case, the only point is required to be decided is whether the minor penalty imposed on the applicant vide order dated 24.9.2011 (Annexure-A/6 to the OA) can be considered more than once for denying promotion of the applicant to IAS, particularly since the CCRs of the applicant continue t be ‘Outstanding’ for which State Government recommended his case for years 2013 to 2017. The applicant relies on the guidelines at Annexure-A/3 of the OA in support of the averment that the minor penalty should not be taken into account more than once and for subsequent meeting of the committee the overall grading for the year pertaining to the penalty be lowered by one level. Per contra, the respondents have averred that the guidelines at Annexure-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 as under :
“3. As regards the other two points mentioned in paragraph 1 above, while it is not possible to lay down any hard and fast rules in this regard, and it is for the competent authority to take a decision in each case having regard to its facts and circumstances, it is considered necessary to reiterate the existing instructions on the subject. Recovery from the pay of a Government servant of the whole or part of any pecuniary loss caused by him to Government by negligence or breach of orders, or withholding of increments of pay, are also minor penalties laid down in rule 11 of the CCS (CCA) Rules. As in the case of promotion of a Government servant, who has been awarded the penalty of censure, the penalty of recovery from his pay of the loss caused by him to Government or of withholding his increment(s) does not stand in the way of his consideration for promotion though in the latter case promotion is not given effect to during the currency of the penalty. While, therefore, the fact of the imposition of such a penalty does not by itself debar the Government servant concerned from being considered for promotion, it is also taken into account by the Departmental Promotion Committee, or the competent authority, as the case may be, in the overall assessment of his service record for judging his suitability or otherwise for promotion or his fitness for admission to a departmental/ promotional examination (where fitness of the candidates is a condition precedent to such admission).
(Cabinet Sectt. (Department of personnel) OM No.21/5/70-Ests. (A) dated the 15th May, 1971.)”
18. It is also noticed that in the DOPT OM dated 28.4.2014, the issue of consideration of officers against whom a penalty has been imposed in disciplinary proceeding in the DPC has been examined in detail. The said circular has specified the following guidelines after examining the judgment of Hon’ble Apex Court in a number of cases.
“5. The role of Departmental Promotion Committee (DPC) in assessment of the officers being considered for promotion, including the officer(s) against whom a chargesheet has been issued or on whom a penalty has been imposed, has been examined by the Supreme Court in several judgments. The observations of Supreme Court in some of the important cases are summarized as under :
a. In A.K. Narula case (AiR 2007 SC 2296), the Hon’ble Supreme Court has observed :
“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. InUnion 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 that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interest. An employee found guilty of misconduct cannot be placed on par with the other employees, and his case has to be treated differently In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified.”
(c) In UO1 & Anr. Vs. S.K. Goel & Ors. (Appeal (Civil) 689/2007 –SLP(C)-2410/2007), the Hon’ble Supreme Court has held that:
“DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence interference by High Court is not called for.”
While delivering the above judgment, the Division Bench has observed that:
“…it is now more or less well settled that the evaluation made by an Expert Committee should not be easily interfered with by the Court which do not have the necessary expertise to undertake the exercise that is necessary for such purpose.”
6. It has been brought to the notice of this Department that DPCs have been adopting varying criteria in assessment of officials undergoing penalty that are not Page 2 of 5 consistent with the extant instructions of the DOPT for e.g., down gradation of grading in ACR/APAR, denying promotion for specified number of years, etc.
7. The matter has been examined in consultation with the Department of Legal Affairs. It is a settled position that the DPC, within its power to make its own assessment, has to assess every proposal for promotion, on case to case basis. In assessing the suitability, the DPC is to take into account the circumstances leading to the imposition of the penalty and decide, whether in the light of general service record of the officer and the effect of imposition of penalty, he/she should be considered suitable for promotion and therefore, down gradation of APARs by one level in all such cases may not be legally sustainable. Following broad guidelines are laid down in respect of DPC:
a) DPCs enjoy full discretion to devise their own methods and procedures for objective assessment of the suitability of candidates who are to be 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 are considered for promotion and disciplinary proceedings, if any, against any person coming in the zone of consideration are expedited, is that of the administrative Ministry/ Department.
d. If the official under consideration is covered under any of the three condition mentioned in para 2 of O.M. dated 14.09.1992, the DPC will assess the suitability of Government servant along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including ‘unfit for promotion’ and the grading awarded are kept in a sealed cover. (Para 2.1 of DoPT OM dated 14.9.92).
e. Para 7 of DoPT OM dated 14.09.92 provides that a Government servant, who is recommended for promotion by the DPC, but in whose case, any of the three circumstances on denial of vigilance clearance mentioned in para 2 of ibid O.M. arises after the recommendations of the DPC are received but before he/she is actually promoted, will be considered as if his/her case had been placed in a sealed cover by the DPC. He/she shall not be promoted until he/she is completely exonerated of the charges against him/her.
f. If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he/she is found guilty in the criminal prosecution against him/her, the findings of the sealed cover/covers shall not be acted upon. His/her case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him/her (para 3.1 of DoPT OM dated 14.9.92).
g. In assessing the suitability of the officer on whom a penalty has been imposed, the DPC will take into account the circumstances leading to the imposition of the penalty and decide whether in the light of general service record of the officer and the fact of imposition of penalty, the officer should be considered for promotion. The DPC, after due consideration, has authority to assess the officer as ‘unfit’ for promotion. However, where the DPC considers that despite the penalty the officer is suitable for promotion, the officer will be actually promoted only after the currency of the penalty is over (para 13 of DoPT OM dated 10.4.89).
h. Any proposal for promotion has to be assessed by the DPC, on case to case basis, and the practice of down gradation of APARs (earlier ACRs) by one level in all cases for one 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 date of the meeting of the first DPC which kept its findings in respect of the Government servant in a sealed cover then subject to condition mentioned in Para 5 of this Department’s O.M. dated 14.09.1992, the appointing authority g) Page 4 of 5 may consider desirability of giving him ad-hoc promotion (Para 5 of this Department’s O.M. dated 14.09.1992).
8. All the administrative authorities in the Ministries/Department are advised to place relevant records, including charge-sheet, if any, issued to the officer concerned, penalty imposed, etc., before the DPC/ACC who will decide the suitability of officer for promotion keeping in view the general service records of the officer including the circumstances leading to the imposition of the charge-sheet or penalty imposed. If such an officer is found suitable, promotion will be given effect after the currency of the penalty is over.
9. All Ministries/Departments are, therefore, requested to keep in view the above guidelines while convening DPC for promotion of the Government servants on whom either penalty has been imposed or where there are adverse remarks in the reckonable ACRs/APARs.
(emphasis supplied)
19. From the above guidelines of DOPT, it is stipulated that in the case of promotion of an officer on whom a penalty has been imposed in disciplinary proceedings, the DPC in assessing the suitability of an officer, will have to take into account circumstances leading to the imposition of the penalty and then decide whether in the light of general service record of the officer, he/she should be assessed to be fit or unfit for promotion. Further, denial of promotion to such an officer after the penalty period is over will be violation of the Article 20 of the Constitution of India provided in sub para (i) of para 7 of the guidelines extracted above. Hence, after the period of penalty is over, it was necessary for the selection committee to have assessed the suitability of the applicant with regard to his overall service record to assess his suitability taking into account the imposition of the penalty. However, during currency of the penalty, the officer would be unfit for promotion.
20. Comparing the guidelines of the DOPT as discussed above with the internal guidelines of the UPSC dated 14.2.2014 (Annexure-R/3/1) for promotion to IAS, it is noticed that the internal guidelines of UPSC, applied by the respondent no.2 to the 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 it 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 along with 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 the applicant deserves to be reconsidered in the interest of justice, since as stated in the counter filed by the respondent no.2, the applicant’s case was decided only on the basis of the fact that a penalty was imposed even though the currency of that penalty was over by the time the applicant was considered for promotion, without assessing his overall performance for the years in question as required under the DOPT guidelines referred to in the preceding paragraphs. We, therefore, set aside the order dated 5.7.2017 (Annexure-A/15) rejecting the representation of the applicant and direct the respondents No.1, 2 and 3 to reconsider the case of the applicant for promotion to IAS as per law for the vacancies of the year 2015 as discussed above by convening the review meeting of the selection committee for the year 2015 and to reconsider similarly for the year 2016 and 2017 if the applicant is found unsuitable for promotion for the year 2015. If the applicant will be found suitable for promotion to IAS by the Review Selection Committee as per the directions above, then he will be entitled for consequential benefits as per law. The respondents No.1, 2 and 3 are directed to implement this order within four months from the date of receipt of a copy of this order.”
5. Learned Tribunal has elaborately discussed the law while making the aforesaid observation in paragraphs-16 to 21 of the impugned order in which it is categorically held that the judgment of the Hon’ble Supreme Court referred to above will not apply in present case in view of paragraph-11 of the judgment of Hon’ble Supreme Court in Civil Appeal No. 10854 of 2014, which reads as under:
“11. The CAT and the High Court have virtually assessed the performance of the first respondent afresh, mainly taking into account the service records for the period from 1.4.2003 to 31.3.2008, and have directed the official respondents to appoint her to the IPS by notionally treating such appointment with effect from the date of notification, i.e., with effect from 5.5.2009 by giving her appropriate place of seniority amongst the private respondents.”
6. We have heard learned counsel for the parties and perused the materials including the impugned order. Learned Tribunal has elaborately dealt with the contentions of learned counsel for the parties with reference to the materials available on record.
7. In our considered opinion, the Tribunal has not committed any jurisdictional error. No interference is called for. The impugned order passed by learned Tribunal on 13.03.2019 was required to be implemented within four months. But, certified copy of the same was applied on 14.03.2019 and this writ petition was filed on 26.07.2019. Within four months from the date of receipt of the impugned order, the petitioner ought to have implemented the same, i.e. before 14th September, 2019. But, without any stay order from this Court and merely filling of the writ petition the authorities sat over the matter without implementing the impugned order. In that view of the matter, we are of the considered opinion that now it will be strictly adhered to and to be implemented expeditiously not later than four months from today.
8. The writ petition is disposed of accordingly. Urgent certified copy of this order be granted on proper application.
