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MAHIPAL SINGH MANN, DEPUTY SUPERINTENDENT OF POLICE (RETD.), PUNJAB POLICE SERVICE, HOUSE NO. 3009, SECTOR 39-D, CHANDIGARH V/S UNION OF INDIA THROUGH SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF PERSONNEL (INDIAN POLICE SERVICE) BRANCH, MINISTRY OF HOME, NORTH BLOCK, NEW DELHI & OTHERS, decided on Monday, October 17, 2016.
[ In the Central Administrative Tribunal Chandigarh Bench, Original Application No. 1120/Ch of 2013. ] 17/10/2016
Judge(s) : L.N. MITTAL, MEMBER (J) & RAJWANT SANDHU, MEMBER (A)
Advocate(s) : Applicant Arjun partap atma ram. R1, Ramlal gupta, R2, B.B. Sharma, R3, Rakesh verma.
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    L.N. Mittal Member (J).1. This Original Application under Section 19 of the Administrative Tribunals Act 1985 has been filed by Manipal Singh Mann applicant claiming the following relief:-“(i)  quashing the impugned order dated 6.6.2013 (Annexure A-24);(ii)  directing the respondents to consider the claims of the applicant for promotion to Indian Police Service in terms of Indian Police Service (Recruitment) Rules 1954 for the select list 1993-94;(iii)  directing the respondents to consider the claims of the applicant for promotion to Indian Police Service in terms of Indian Police Service (Recruitment) Rules 1954;(iv)directing the respondent Union Public Service Commission to appoint the applicant to the Indian Police Service by according to him the same year of allotment as     his batch mates i.e. 1991 if necessary by directing compliance in terms of the order of the Hon’ble High Court on record as Annexure A-22 and A-23.(iv)directing the respondent UPSC to hold review selection committee meeting for the years following 1994-95 during which promotion to the Indian Police Service has been made from the State cadre”.2.   This is 2nd round of litigation by the applicant. Earlier the applicant filed O.A. No. 1331/CH/2012 bearing the same title claiming the following relief:“(i)  directing the respondents to consider the claims of the applicant for promotion to Indian Police Service in terms of Indian Police Service (Recruitment) Rules 1954 and if necessary Directing the respondent State to forward the case of the applicant to the respondent Union Public service Commission by holding a review meeting of the select committee for the purpose of promotion ;(ii)  directing the respondent Union Public service Commission to appoint the applicant to the Indian Police Service by according to him the same year of allotment as his batch mates i.e. 1991 if necessary by directing compliance in terms of the order of the Hon’ble High Court on record as Annexure A-22 and A-23.”The instant O.A. is almost reproduction of O.A. NO. 1331/CH/2012 by cut copy and paste method with some changes. Previous O.A. filed by the applicant was disposed of by this Tribunal vide order dated 26.7.2013 (Annexure A-25) which is reproduced hereunder:-“1.  Learned proxy counsel for the applicant states that there is no grievance remaining in the Original Application. He seeks to withdraw it.2.   No objection on behalf of the respondents.3.   If the applicant is still aggrieved he would be at liberty to approach the appropriate legal forum if so advised.4.   In view of aforesaid this case is dismissed as withdrawn.”3.   During the pendency of previous O.A. filed by the applicant Meeting of the Review Selection Committee (RSC) of Union Public Service Commission (UPSC) ‘respondent no. 2 was held on 6.6.2013 pursuant to interim order dated 22.03.2013 passed in that O.A. Case of the applicant for promotion from State Police Service (SPS) to Indian Police Service (IPS) of Punjab Cadre under Regulation 3 of the Indian Police Service (Appointment by Promotion) Regulations 1955 (in short the Regulations) was considered. As per minutes of the said meeting (Annexure A-24) the applicant was assessed as ‘Unfit’ and accordingly the RSC did not recommend his name for inclusion in the Select List (SL) of 1994-95 for promotion to IPS of Punjab Cadre. By way of instant O.A. the applicant has challenged the said order and has also sought his promotion to IPS in terms of Indian Police Service (Recruitment) Rules 1954 (in short the Recruitment Rules) for the SL of 1993-94 and for the years following 1994-95.4.   The applicant was appointed to SPS as Deputy Superintendent of Police vide appointment letter dated 28.2.1986 (Annexure A-1) and joined the said post on 11.3.1986. His service was dispensed with during probation period vide order dated 28.9.1987 (Annexure A-3). He challenged the said order by filing CWP NO. 4720 of 1988 in Hon’ble Punjab and Haryana High Court. The said Writ Petition was dismissed vide order dated 15.3.1991 (Annexure A-4). The applicant filed Letter Patents Appeal (LPA) No. 23/1992 against the said order. The applicant also made Mercy Petition to State of Punjab-respondent no. 3. The applicant withdrew the aforesaid LPA No. 23/1992 which was dismissed as withdrawn vide order dated 29.1.1993 (Annexure A-6) pursuant to undertaking asked from the applicant by State of Punjab vide letter dated 27.1.1993 (Annexure A-5). The applicant was accordingly reinstated in service vide letter dated 9.2.1993/endorsement dated 24.2.1993 (Annexure A-7). The intervening period from 28.9.1987 to 25.2.1993 was treated as leave of the kind due vide order dated 30.7.1998 (Annexure A-9). Pursuant to further litigation and representation the applicant was granted confirmation and seniority w.e.f. 11.3.1986 the initial date of his joining the service vide order dated 30.1.2013 (Annexure A-23/A) passed during the pendency of previous O.A. of the applicant. Thereupon respondent no. 3 forwarded the case of the applicant to UPSC for RSC meeting for considering promotion of the applicant to IPS for SL of 1994-95. The applicant was found ‘Unfit’ vide Minutes of meeting dated 6.6.2013 (Annexure A-24). Hence this O.A.5.   Respondents no. 1 & 2 (Union of India and UPSC) in their written statements inter alia pleaded that it is for the State of Punjab to forward the proposal for convening meeting of Selection Committee/Review Selection Committee of UPSC for promotion to IPS and the role of respondents no. 1 & 2 comes thereafter. The applicant was found to ‘Unfit’ for promotion to IPS vide RSC minutes held on 6.6.2013 for SL of 1994-95 and therefore he could not be appointed to IPS of Punjab Cadre. He has since retired on 31.8.2011. Respondent no. 2 defended its decision dated 6.6.2013 (Annexure A-24) pleading that available service record of the applicant was considered and assessed and he was found ‘Unfit’ for promotion to IPS. As regards consideration of applicant for earlier or subsequent years it is for the State of Punjab to forward the proposal to UPSC- respondent no. 2. However he was not eligible for SL of 1993-94 because he had not completed 8 years service in SPS as on 1.4.1993.6.   Respondent no. 3 in its reply pleaded that name of the applicant for SL of 1994-95 was forwarded to UPSC but he was found ‘Unfit’ for promotion to IPS for the said year on the basis of his service record. He could not be considered for subsequent years because he had not earned any regular ACRs for more than 5 months or for a reporting full year. He could not do it up to the year 2007 when he attained the age of 54 years and crossed the upper age limit. Till the year 2007 he did not work anywhere for more than three months with some exceptions of 4 months 6 months and 7 months. During the entire period till 31.8.2007 when he reached the age of 54 years his all the ACRs came to 4 years only.7.   Additional affidavit was also filed on behalf of Punjab State pursuant to order dated 13.7.2015 of the Tribunal. Another additional affidavit pursuant to order dated 21.12.2015 was also filed.8.   We have heard learned counsel for the parties and perused the case file.9.   Assailing impugned Minutes of meeting dated 6.6.2013 (Annexure A-24) of RSC for SL of 1994-95 counsel for the applicant contended that remarks in ACRs of the applicant recorded during the probation period on the basis of which he had been terminated from service were also considered although his termination order was set aside and he was reinstated in service and therefore those adverse remarks could not be considered. The contention is untenable. Perusal of the Minutes of the meeting (Annexure A-24) reveals that the RSC did not take into consideration the adverse remarks in ACRs of the applicant which were not communicated to him. However inspite thereof on overall relative assessment of the service record of the applicant the RSC assessed the applicant as ‘Unfit’ and therefore did not recommend his name for inclusion in the SL of 1994-95 for promotion to IPS of Punjab Cadre. Consequently the contention that adverse remarks in ACRs recorded during his probation period were considered cannot be accepted. Consequently there is no infirmity in the decision of the RSC. This Tribunal cannot substitute the opinion of the RSC with its own opinion regarding assessment of the applicant for promotion to IPS. The opinion of the RSC regarding assessment of the service record of the applicant has to be accepted because there is no flaw in considering the case of the applicant by the RSC.10.  In view of the aforesaid challenge to minutes/order dated 6.6.2013 (Annexure A-24) cannot be accepted.11.  As regards consideration of the applicant for SL of 1993-94 for promotion to IPS the applicant was not eligible for the same as he had not completed 8 years service in SPS as on 1.4.1993. Even counsel for applicant did not advance any argument in this regard. Moreover claim of the applicant for SL of 1993-94 is also barred by res judicata as would be discussed hereinafter.12.  Counsel for applicant contended that RSC meeting had to be held for considering the case of the applicant for promotion to IPS for subsequent years after 1994-95 but he was not so considered. However the instant O.A. for the same is barred by res judicata. The applicant in his previous O.A. No. 1331/CH/2012 had sought direction for his promotion to IPS in terms of the Recruitment Rules of 1954. According to the said Rules the applicant should have been considered for all the years for which he was eligible i.e. since 1994-1995 till 2006-2007. During the pendency of the previous O.A. of the applicant he was considered for SL 1994-95 only and was found ‘Unfit’. Thereupon the applicant without insisting on his claim for consideration for subsequent years withdrew the said O.A. vide order dated 26.7.2013 (Annexure A-25). Thus in the previous O.A. the applicant did not press or pursue his claim for consideration for subsequent years. Consequently the instant O.A. for the same relief is barred by res judicata. Counsel for the applicant contended that in the previous O.A. the applicant had not staked his claim for subsequent years. The contention is untenable. The applicant in the previous O.A. had also staked his claim for promotion to IPS in terms of the Recruitment Rules which provided for consideration of the applicant for all the years during which he was eligible. Thus his claim in the previous O.A. was also for all the years during which he was eligible. Consequently his claim for subsequent years in the instant O.A. is barred by res judicata. In the previous O.A. the applicant had not made his claim for 1994-95 or for any specific year. It is thus evident that his claim in the previous O.A. was also for all the years during which he was eligible. However even assuming for the sake of argument only that his claim in the previous O.A. was not for all the years even then the instant O.A. regarding his claim for subsequent years is barred by constructive res judicata because he could and should have made this claim also in his previous O.A. Thus examined from any angle claim of the applicant for all the years except 1994-95 is barred by res judicata.13.  Counsel for applicant contended that retirement of the applicant on 31.8.2011 is no bar for his consideration for the years while he was in service. Reliance has been placed on judgment of Hon’ble Punjab and Haryana High Court in 1999 (1) SCT 175- ‘ Chaman Lal Lakhanpal Vs. Union Public Service Commission’. There is no quarrel with this legal proposition. However it does not help the applicant in any manner. Claim of the applaint for all the years except 1994-95 is barred by res judicata whereas for 1994-95 he was duly considered and found ‘Unfit’. His claim has not been rejected on the ground that he had already retired from service. In fact even for SL of 1994-95 he was considered on 06.06.2013 long after he had already retired on 31.08.2011.14.  For the reasons aforesaid we find no merit in the instant O.A. which is accordingly dismissed. No order as to costs.