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Dulal Krishna Majumdar v. State Of West Bengal & Ors.
Structured Summary of the Opinion delivered by Banerjee, J. (with B.C. Ray, J. concurring)
Factual and Procedural Background
The petitioner, then Additional S.P., Midnapore and the seniormost D.S.P. in the State Police Service, had been included in earlier select lists for promotion to the Indian Police Service (I.P.S.) (select lists prepared in 1972 and continued in 1973 and 1974). The Government of West Bengal passed an order of reversion dated 20 March 1975 stating that the petitioner's name had not been included in a revised select list of State Police Officers considered for promotion to the I.P.S., as approved by the Union Public Service Commission (U.P.S.C.) on 3 December 1975, and therefore he could not hold an I.P.S. cadre post on an officiating basis under the I.P.S. (Appointment by Promotion) Regulation.
The petitioner annexed to his petition a letter dated 30 January 1976 from the Home Department, G.A. Branch, communicating an adverse remark recorded in his Confidential Character Roll (C.C.R.) for 1973–1974 and 1974–1975. The petitioner obtained a Rule (challenging the reversion and deletion from the select list) and interim status quo orders were granted; as a practical matter he continued to work in the I.P.S. cadre but was being paid D.S.P. salary.
Affidavits were filed by the U.P.S.C. and the State Government. The U.P.S.C. stated that select lists remain in force until reviewed or revised under Regulation 5(7) of the I.P.S. (Appointment by Promotion) Regulations, 1955, and that the selection committee considered service records at its meeting on 6 October 1975 and forwarded recommendations to the U.P.S.C. The State Government's affidavit stated (among other things) that the petitioner's name was not included in the 1975 select list, that the integrity certificate in respect of the petitioner had been withheld, and that the petitioner had attained the age of 52 before 1 January 1976 (raising issues under Regulation 5(3)).
The Single Judge hearing the petition had discharged the Rule (the opinion under appeal comes after that), and the present appeal challenges that outcome. The appellate court ultimately allowed the appeal and made the Rule absolute to the extent indicated in the opinion.
Legal Issues Presented
- Whether deletion of the petitioner's name from the I.P.S. select list (and consequent reversion) was valid when the adverse entries in the petitioner's Confidential Character Roll (C.C.R.) that apparently informed that decision had not been communicated to the petitioner prior to the selection process.
- Whether an integrity certificate (withheld by the State Government) based on uncommunicated adverse entries in the annual confidential roll could validly be relied upon by the selection committee and the U.P.S.C. in preparing/approving the select list.
- Whether the effect of deleting a name from a select list amounts to a penal/punitive consequence (and, if so, whether additional procedural safeguards such as communication of reasons are required).
- Whether the petitioner, having been continued in an officiating I.P.S. post by interim order but paid D.S.P. salary, is entitled to the salary and emoluments of the I.P.S. cadre for the relevant period.
Arguments of the Parties
Appellant's Arguments (Mr. Chakraborty)
- The adverse remarks recorded in the C.C.R. for 1973–1974 and 1974–1975 were communicated to the petitioner only on 30.1.76 — after the selection committee had considered records and after the U.P.S.C. approved recommendations (selection committee met 6.10.75; U.P.S.C. approved 3.12.75). Thus the adverse entries were not communicated before consideration and decision.
- Under the All India Service (Confidential Rolls) Rules, 1970 (Rule 5 and Rules 8 & 9), an adverse confidential report must be communicated to the member, and the member has a right to represent to the Government within three months; the Government must consider that representation in consultation with the reporting officer and pass an order within three months. If an adverse remark was considered without giving the petitioner the opportunity to exercise these procedural rights, any consequent adverse administrative action cannot be sustained.
- Deletion of a name from a select list is a punitive consequence affecting the officer's future promotion prospects and should not be based on uncommunicated adverse entries (citing a Division Bench of the Patna High Court, 1969 SIR 648, and P.L. Dingra v. Union of India, 1958 S.C. 36, for the proposition that deletion from a select list may amount to punishment).
- The reason(s) for deletion (or the integrity certificate) should have been communicated; the withheld integrity certificate was said to be based on C.C.R. entries not communicated to the petitioner and therefore cannot be relied upon.
- Reliance was made on additional authorities (e.g., a 1973 S.C. report, and High Court decisions reported at 1978 (2) SLR 541 and 1977 SLR 57) to argue that the Government's decision withholding an integrity certificate may be ultra vires Regulation 5 of the I.P.S. (Appointment by Promotion) Regulation, 1955, and that the certificate must be referable to communicated C.C.R. entries.
Respondent's Arguments (Union Public Service Commission and State Government)
- The select list remains in force until it is reviewed or revised under Regulation 5(7) of the I.P.S. (Appointment by Promotion) Regulation, 1955; the selection committee made assessments based on service records available at the time of its meeting (6 October 1975) and forwarded recommendations to the U.P.S.C.
- The selection committee examined service records (including the petitioner's) and considered suitability, including integrity, when preparing the 1975 list; the State Government stated that it had withheld the integrity certificate for the petitioner and that the petitioner had attained 52 years of age before 1 January 1976, which under Regulation 5(3) would ordinarily preclude consideration except for the proviso applying to names already in the list in force before the meeting.
- Reference to an Income Tax Act case (1976 S.C. 437, with reference to S.127) was made by the respondents or discussed — but the court found that principle inapplicable to selection committee procedure under Regulations governing I.P.S. promotions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| P.L. Dingra v. Union of India, 1958 S.C. 36 | Deletion of a name from a select list can amount to punishment (i.e., has punitive consequences for future promotion). | The court relied on the principle that deletion from a select list has penal consequences to support the view that action taken on the basis of uncommunicated adverse entries cannot be sustained. |
| Division Bench of Patna High Court, 1969 SIR 648 | Referenced for the proposition that deletion from a select list may amount to punishment (as relevant to the facts). | The court cited this decision in argument to support the contention that deletion is punitive; it forms part of the reasoning that deletion based on uncommunicated adverse remarks cannot stand. |
| 1976 S.C. 437 (Income Tax Act case; reference to S.127) | Principle that reasons are to be communicated where statute requires (the case concerned transfers under Income Tax Act and communication of reasons). | The court held that the principle from this Income Tax case has no application to the present selection procedure under the I.P.S. promotion regulations. |
| 1973 S.C. 2641 (unnamed case citation in text) | Argued by appellant to support that reasons must be recorded/communicated under Regulation 5(7). | The court considered the point but concluded the statutory regulation (Regulation 5(7)) did not require formal communication of the selection committee's reasons in the manner of judicial orders; nevertheless deletion based on uncommunicated adverse entries could not be sustained. |
| Punjab & Haryana High Court decisions: 1978 (2) SLR 541 and 1977 SLR 57 | Held that government decision regarding integrity certificate may be ultra vires Regulation 5 of the I.P.S. (Appointment by Promotion) Regulation, 1955. | Appellant relied on these decisions to argue that the integrity certificate is invalid if based on uncommunicated adverse C.C.R. entries. The court accepted that an integrity certificate based on uncommunicated adverse entries cannot stand. |
Court's Reasoning and Analysis
The court's analysis proceeds from statutory provisions and the temporal facts about when records were considered versus when the petitioner was informed of adverse entries:
- The All India Service (Confidential Rolls) Rules, 1970, require that adverse confidential reports be communicated and afford an officer an opportunity to represent within three months; the Government must consider such representations. The court emphasized that confidential character rolls form part of service records and are commonly considered at promotion time.
- The selection committee met on 6 October 1975 and recommendations were sent to the U.P.S.C., which approved on 3 December 1975. The adverse remark in the petitioner's C.C.R. for 1973–1974 and 1974–1975 was communicated to the petitioner only on 30 January 1976. Thus, on the face of the record, the selection committee and U.P.S.C. considered material (adverse C.C.R. entries and/or an integrity certificate based on them) that had not been communicated to the petitioner and in respect of which he had therefore not been given the statutory opportunity to represent.
- The court held that taking adverse action (deleting the petitioner's name from the select list and reverting him) on the basis of uncommunicated adverse entries contravenes the statutory procedure in the confidential rolls rules; such reliance is impermissible. Because deletion from a select list has punitive consequences for the officer's future promotion prospects (citing P.L. Dingra and other authorities), the court found that the deletion could not be sustained.
- On the narrower question whether reasons recorded by the selection committee must be communicated, the court observed that Regulation 5(7) does not expressly require communication of the committee's reasons in the manner of judicial orders. The court noted that selection committees are not expected to record reasons in the same manner as a judicial officer. However, notwithstanding this, the court concluded that deletion based on uncommunicated adverse C.C.R. entries (and on an integrity certificate derived from such entries) could not be upheld.
- The court also considered Regulation 5(3) (age restriction) and its proviso: ordinarily members who attained age 52 by 1 January of the year are not considered, but a member whose name appears in the list in force before the meeting shall be considered for inclusion even if he has in the meantime attained 52. The court applied this proviso in the petitioner's favour because it found the deletion from the 1975 list to have been illegal.
- As a consequence of its findings, the court set aside the U.P.S.C.'s order deleting the petitioner's name and the State Government's reversion order made on that basis. It directed that the petitioner must be reconsidered for inclusion in the select list for 1975 without reference to the adverse remark that had not been communicated to him. The court left open for the U.P.S.C. and State Government to decide suitability (i.e., the substantive merits) under Regulation 5(7) upon reconsideration, but it did not itself adjudicate suitability.
- Regarding salary, because the petitioner had been continued in the I.P.S. cadre by interim order but was being paid D.S.P. salary, the court held that the petitioner was entitled to be paid all salaries as if he had not been reverted, pending the selection committee's decision for 1975 in accordance with Regulation 5(3).
Holding and Implications
Holding: The appellate court allowed the appeal. The Rule was made absolute to the extent indicated in the opinion. In the specific terms used by the court: the order of the U.P.S.C. deleting the petitioner's name from the select list and the consequent order of reversion by the State Government were set aside, and the petitioner must be reconsidered for the 1975 select list without reference to the adverse C.C.R. remark which had not been communicated to him.
Immediate consequences for the parties:
- The petitioner's deletion from the 1975 select list and his reversion to the State Police Service were quashed.
- The petitioner is to be reconsidered by the selection authorities for inclusion in the select list for promotion to the I.P.S. without reliance on the uncommunicated adverse C.C.R. entries or an integrity certificate derived from them.
- The petitioner is entitled to payment of the salary and emoluments appropriate to the I.P.S. cadre for the relevant period (i.e., he must be paid as if he had not been reverted) pending the selection committee's reconsideration under Regulation 5(3).
- The U.P.S.C. and the State Government remain free to decide the petitioner's suitability on reconsideration under Regulation 5(7); the court did not itself rule on the merits of suitability or compare other officers to the petitioner.
Broader precedent: The court's order rests on statutory procedural requirements governing confidential rolls and the principle that adverse entries not communicated cannot be acted upon in a manner that produces punitive consequences. The opinion does not announce a broader novel principle beyond applying these statutory and precedent-based propositions to the facts; the decision's immediate legal effect is to set aside the challenged administrative acts and to mandate reconsideration consistent with the statutory procedures described.
Disposition and Costs
The appeal was allowed. The Rule was made absolute in the manner indicated in the opinion. There was no order as to costs. B.C. Ray, J. agreed. The formal concluding line in the opinion reads: "Appeal allowed."
Banerjee, J.:—This appeal at the instance of the petitioner arises out of an order passed by the Hon'ble single Judge hearing the petition at the instance of the petitioner who was at the point of time Additional S.P, Midnapore, against his order of reversion dated the 20th March, 1975 passed by the Government of West Bengal stating therein that as the petitioner's name had not been included in the revised select list of the State Police Officers considered for promotion to I.P.S as approved by the U.P.S.C on the 3rd December, 1975, the petitioner cannot therefore be allowed to hold the I.P.S cadre post on an officiating basis in accordance with I.P.S (Appointment by Promotion) Regulation. Accordingly, the orders have been passed posting the petitioner in a State Police Service Post. The petitioner also annexed annexure “B” to the petition a letter dated 30.1.76 issued by the Home Department, G.A Branch to the petitioner communicating to him the adverse remark that has been recorded in his C.C.R for the years 1973-1974 and 1974-1975. It is to be stated that the petitioner's name was included in the select list prepared in November 1972 and according to the same he was just at the top of the seniority list as the petitioner is the senior most D.S.P in State Police Service. By the impugned order as hereinbefore stated the petitioner's name from the select list was removed and in consequence thereof the petitioner was sought to be reverted to the Stato Police Service and, therefore, to the post of D.S.P which he was holding before his name was entered in the select list for the promotion to the post of I.P.S cadre under I.P.S (Appointment by Promotion) Regulation.
2. Being aggrieved by this order the petitioner moved the Court and obtained the present Rule. While issuing the Rule the Hon'ble Judge directed status quo to be maintained until further orders. It appears that pending the hearing of the Rule the interim order was continued but though at the present moment he was working in the I.P.S cadre but he has not been allowed to draw the salary which he is entitled to. He works in the I.P.S cadre and he is in fact getting the salary of the D.P.S Be that as it may, at the hearing in the affidavit-in-opposition filed by the respondent the Union Public Service Commission it has been stated, inter alia, that the select list shall be ordinarily in force until it is reviewed or revised according to Regulation 5(7) of the I.P.S (Appointment by Promotion) Regulation, 1955. It has been further stated that the selection committee made the assessment regarding the suitability of an officer for promotion of the basis of the service record as obtained at the time of the meeting of the committee. The meeting was held on October 6, 1975. The recommendation was made to the U.P.S.C and along with the recommendation the service records of all the persons fit to be in the select list under the regulation 5(7) of the I.P.S (Appointment by Promotion) Regulation, 1955, were sent. The State Government filed the affidavit stating inter alia therein that the petitioner's name was for the first time included in the select list for promotion to I.P.S prepared in 1973 and his name was continued to be borne in the select list prepared in 1974. In March 1973 the petitioner was appointed to officiate in the post of the Superintendent of Police, Government Railway Police, Howrah, which is a post included in the I.P.S cadre. It is stated further that in the select list of 1975 the name of the petitioner was not included and as the petitioner's name was not included; by the order dated 20.3.76 the petitioner was not allowed to hold the I.P.S cadre post on an officiating basis and as such an order was made reverting the petitioner to the West Bengal Police Service and posting him as Liaison Officer, Forensic Science Laboratory, Calcutta. It was stated further that in preparing the select list of 1975 the selection committee examined all the records of eligible officers including the petitioner and considered the question of sutability of the officers concerned for promotion with reference to the integrity. It is stated that the State Government withheld the integrity certificate in respect of the petitioner. It was further stated that the petitioner's name was not included in the list prepared in 1976 on the ground that the petitioner attained the age of fifty two before the 1st January, 1976 and, therefore, the selection committee did not consider him of such exceptional merit and suitability to warrant a departure of the regulation under Regulation 5(3) of the I.P.S (Amendment by Promotion) Regulation, 1955. In the way, Mr. Chakraborty has argued this case that it is not necessary to refer to the other facts in the present case but the Hon'ble Judge was pleased to discharge the Rule holding, inter alia that in making the order striking out the name of the petitioner from the Select list the reasons were recorded as to why it should be done.
3. Mr. Chakraborty, on behalf of the appellant, contended firstly that the adverse remark sent to the petitioner on 30.1.76 was regarding the abverse remark in the C.C.R for the year 1973-1974 and 1974-1975 which was served on him long after the adverse remark was entered in the C.C.R of the petitioner and it is the case of the State Government that all the files sent to the selection committee who was considering the names of the persons eligible to be enlisted in the select list were sent to the U.P.S.C on 31.10.75 and, therefore, on the face of it, it appears that the adverse remarks were in the record of the petitioner which were sent and considered by the selection committee and, therefore, by the U.P.S.C when it came to the conclusion that the name of the petitioner should be deleted from the select list. In the All India Service (Confidential Rolls) Rules, 1970, it has been specifically provided in Rule 5 that confidential roll assessing the performance, character, conduct and quality of every member of the service shall be for each financial year or current year as may be specified by the Government, ordinarily within two months of the close of the year. We are not concerned with the other portion of the Rule 5. But it is also provided that even if adverse confidential report is made it must be communicated to the member of the service and under Rules 8 and 9 of the said Rules of 1970 a member of the service may represent to the Government against the same under Rule 8 within three months from the date of receipt by him. The Government shall on such representation being made in consultation with the Reporting Officer consider the representation made and pass order thereon as soon as practicable within three months rejecting the representation, toning down the same or expunging the same and the order so passed on the representation shall be final while confidential charactor roll is a part of the service record of the member of the service and more often than not these are considered at the time of promotion to higher posts by the authorities concerned. In the present case, admittedly, the confidential adverse remark made for the year 1973-1974 and 1974-1975 was considered, as affidavit filed by the Union Public Service Commission, the petitioner as well as others which was sent to them for making the select list for officers fit to be promoted to the I.P.S cadre. If such orders are made on consideration of adverse remark even when the petitioner had any (no?) chance to make any representation against the same, such orders cannot be allowed to stand. Admittedly the selection committee on 6.10.75 made the recommendation to the U.P.S.C and on 3.12.75 on the basis of the record containing the recommendation by the members as well as the adverse remark already appearing on the confidential roll of the petitioner, the U.P.S.C approved the same; and as the order passed deleting his name from the select list, the petitioner was reverted from the officiating post. Such order must be held to be by way of punishment as it appears apart from his reversion his chance of future promotion has already been jeopardized by the said order. This question was considered by the Division Bench of Patna High Court in 1969 SIR 648 at paragraph 5. Mr. Chakraborty argued that the adverse remark which was made by the authorities concerned that was communicated to him long after the adverse remark was considered by the select committee and thereafter approved by the U.P.S.C On the face of it, in our opinion, the adverse remark not having been communicated in violation of the statutory regulation cannot be considered by the selection committee. That is a violation of the statutory regulation and therefore no order which is passed on uncommunicated adverse remark can be considered by the selection committee in order to see whether a particular officer is if to officiate in I.P.S cadre and for confirmation of his name in select list. Furthermore, the removal of the name of the petitioner from the select list will entail punishment inasmuch as the future chance of promotion to the I.P.S cadre of the present officer will be in jeopady. Reference may be made to 1958 SC 36 (P.L Dingra v. Union of India) where it has been held that the deletion of the name from the select list will amount to punishment.
4. Mr. Chakrabarty next argued that the reason for deleting the name from the select list must also be communicated to the petitioner. It does not appear from the regulation in particular Regulation 5(7) that the petitioner is entitled to a communication of the reasons recorded by the select committee in preparation of the list of suitable officers while a particular officer has been superseded. It appears to me that Regulation 5(7) will be followed even if it is found the committee has recorded his reasons for the proposed supersession. It is not expected that the selection committee should record the reasons in the order as made by the Judicial Officer. It is according to us he can possibly give reasons which will show why a particular officer has superseded the person already in the list and more so when it appears in coming to a conclusion in preparation of the list of suitable officers the committee will consider member of the State Police Service in order of seniority up to the number not less than five times of the number referred to sub-regulation (1) and it will not consider a case of a member unless on the first day of that year he has been in his substantive appointment in the State Police Service and has completed eight years of continuous service whether officiating or substantive in the post of D.S.P or any other post included in the State Police Service which are equivalent in status and responsibility of the D.S.P Mr. Chakrabarty, however, referred to a decision reported in 1973 SC 2641 and contended that reasons must be recorded under Regulation 5(7) and further contended that this should be communicated because this entails penal consequence. In our opinion, the statutory Rules do not show such communication is to be made but suffice it is for us to say that in the present case as the petitioner's name has been removed from the select list that itself has a penal consequence by which chance of future promotion of the petitioner has been jeopardized and therefore cannot be sustained.
5. Mr. Chakrabarty relied upon 1976 SC 437 that is a case under the Income Tax Act by which the Income Tax authorities had power to transfer a case from one Income Tax Officer to another Officer. It has been held by the Supreme Court with reference to S. 127 of the Income Tax Act that in such cases reasons are to be communicated. The case or the principle has no application in the present case and the petitioner need not be given any opportunity to be heard before the selection committee according to the statutory provision. On the other hand, the selection committee will be guided by the record made in consultation with the character roll and the officer's overall performance in the execution of his duties of a Police Officer.
6. It appears further that the selection committee has considered the case of D.K Majumdar and reasons of supersession have also been communicated. The integrity certificate has been withheld by the State Government and of average standard and therefore he is not fit for higher responsibility. We have already stated that this order was made on the adverse remark in the confidential character roll in regard to at least two years before the order of deletion of his name from the select list was considered by the selection committee.
7. Mr. Chakraborty then urgued that the integrity certificate itself on which reason was passed under Regulation 5(7) and so far as the Indian Administrative Service Confidential Rolls Rules, 1970, are concerned the integrity certificate is of no consequence. It appears in I.P.S (Appointment by Promotion) Regulation (7) certain decision was made by the Government of India which authorises the State Government to give all eligible officers whose names are to be considered by the selection committee the certificate of integrity in the following form:
“The State Government certifies the integrity of Shri……………………………………………………….with reference to entries in the annual confidential report.” Assuming for a moment that this decision is not ultra vires still the State Government's withholding integrity certificate of the petitioner must be with reference to the entries in the annual confidential report which admittedly was not communicated to the petitioner when his name was being considered by the selection committee and on the recommendation of that selection committee the name was deleted from the select list of 1975. Mr. Chakrabarty further relied upon two decisions reporied in 1978 (2) SLR 541 and 1977 SLR 57 paragraph 11. Punjab and Haryana High Court held the Government's decision regarding the integrity certificate is ultra vires Regulation 5 of the I.P.S (Appointment by Promotion) Regulation 1955. But in any case, assuming that such certificate is necessary, the certificate on the face of it must be with reference to entries in the annual confidential character roll and if such adverse entries are not communicated in violation of the statutory regulation contained in All India Service Confidential Rolls Rules 1970, it cannot be relied upon and any certificate given on the basis thereof cannot, therefore, stand. The selection committee having considered and relied upon such certificate was pleased to delete the petitioner's name from the select list as the integrity certificate has been withheld on the face of it is bad being violative, as we have said, of the statutory form already mentioned.
8. It has been suggested in the affidavit filed by the parties that the petitioner was more than fifty two at the time when the selection was made and he was not entitled to be considered on the subsequent years because in Regulation 5(3) it has been specifically stated as follows:
“The committee shall not ordinarily consider the case of a member of State Police Service who attained the age of fifty two years on the first January of the year in which it is made, provided that a member of the State of the Police Service whose name appears in the list in force before the date of the meeting of the committee shall be considered for inclusion in the fresh list to be prepared by the committee even if he in the meanwhile attained the age of fifty two years.”
9. In our opinion, this proviso in terms apply in view of our finding that the petitioner's name was illegally deleted from the select list of 1975. We are, therefore, of the opinion that the order of the Union Public Service Commission and the consequent order of reversion made on the basis thereof removing the petitioner's name from the select list and not considering the same in 1975 was bad in law. Consequently the order of reversion by the State Government from the additional post of the I.P.S cadre to the State Police Service must also be set aside. The petitioner must therefore be reconsidered without reference to the adverse remark which was not communicated to him for his appoinment at the selection in the select list for 1975 under Regulation 5 of the I.P.S (Appointment by Promotion) Regulation, 1955. It is stated before us that though the petitioner is holding the post in view of the interim order passed by this Court in I.P.S cadre the petitioner is being paid salary in the cadre as if he has been reverted to the post of D.S.P
10. In view of our order setting aside the order passed by the U.P.S.C as also by the State Government the petitioner is entitled to all the salaries as if he has not been reverted pending the selection committee's decision for the period 1975 in accordance with Regulation 5(3). He must be held to be continued in the select list for officers suitable for promotion to I.P.S cadre. We, therefore, make it clear that it is open for the U.P.S.C and for that matter the State Government to decide whether the petitioner is suitable to retention of his name in select list under Regulation 5(7) of the I.P.S (Appointment by Promotion) Regulation, 1955. We have not considered the suitability of the officers which are before us vis-a-vis the petitioner.
11. The Rule in made absolute only on the ground the adverse remark which was considered by the selection committee without the communication of the adverse remark in the C.C.R of the present officer which was communicated long after and that cannot be done, and that the integrity certificate withheld by the State Government was also with reference to the entries in the annual confidential report which contained the adverse remark against the petitioner.
12. The appeal is allowed. The Rule is made absolute to the extent indicated above.
There will be no order as to costs.
B.C Ray, J.:—I agree.
Appeal allowed.
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