Central Administrative Tribunal - Cuttack
Baikuntha Bihari Mishra vs Forest And Environment Deptt on 17 January, 2023
1 O.A.No. 260/00092 of 2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/092 of 2021
Reserved on : 06.01.2023 Pronounced on: 17.01.2023
CORAM:
HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A)
Sri Baikuntha Bihari Mishra, aged about 64 years, son of late
Nityananda Mishra, presently residing at Plot No.S/30, Indira
Housing Complex, Lingipur, Sisupalgarh, Bhubaneswar-2, and
retired from Government service as Dy. Conservator of Forests.
..... Applicant
For the Applicant : Mr. S.K.Ojha, Counsel
-Versus-
1.Union of India represented through the Secretary to the Government
of India, Ministry of Environment, Forests and Climate Change, Indira
Paryavaran Bhawan, 6th Floor, Prithvi Block, Jor Bagh Road, Aliganj,
New Delhi-110003.
2. Secretary to Government of India, Ministry of Personnel, Public
Grievance and Pension, Department of Personnel & Training, North
Block, New Delhi-110001.
3. Principal Secretary to the Government of Odisha, Forest and
Environment Department, Odisha Secretariat Building, Bhubaneswar,
Dist. Khurda. Pin-751001.
4. Principal Secretary to the Government of Odisha, General
Administration and Public Grievances Department, Odisha Secretariat
Building, Bhubaneswar, Dist. Khurda. 751001.
2 O.A.No. 260/00092 of 2021
5. Union Public Service Commission represented through its Secretary,
Dholpur House, Sahajahan Road, New Delhi-110069.
.....Respondent
For the Respondents: Mr. G.R.Verma, Counsel for UOI
Mr. J.Pal, Counsel for State of Orissa
ORDER
Swarup Kumar Mishra, Member (J):
In nutshell, the case of the applicant, a retired Dy. Conservator of Forests, is that on 05.02.2018, DPC was held for promotion to the Indian Forest Service where his name was also recommended and, after the panel was approved by the UPSC, respondent no.1 issued notification on 06.04.2018 requesting the State Govt. to send declaration of selected candidates. The applicant submitted his declaration/willingness on 10.04.2018. On 17.05.2018 respondent No.1 issued order extending promotion to in-service 13 persons. While the matter stood thus, five retired persons approached this Tribunal in a batch of matters, i.e. OA Nos. 329 to 332 of 2018, which was disposed of by this Tribunal on 04.12.2019 with the following directions:
"(i) Whether the Presidential Approval had been accorded in respect of the Select List 2008-A to 2014 for promotion to I.F.S. in so far as applicant is concerned and if it turns to be affirmative, whether Respondent No.1 had acted within his authority to eliminate the name of the applicant from the purview of Notification dated 17.5.2018.3 O.A.No. 260/00092 of 2021
(ii) Whether promotion of the applicant to IFS stands repugnance to any of the provisions of Indian Forest Service (Appointment by Promotion) Regulation, 1966, on the ground that by the time the Notification dated 17.05.2018 came to be issued, he was no longer a Member of SFS having already retired from service and if the outcome stands to the contrary, whether Respondent No.1 has acted within the frame work of rules in not promoting the applicant to IFS.
(iii) If the consideration of the above two directives brings forth that the applicant ought to have been promoted to IFS in pursuance of Notification dated 17.05.2018, immediate steps shall be taken to give effect to the promotion of the applicant to IFS from the date his immediate junior was so promoted and in such eventuality, the applicant's pay shall only be fixed notionally in the cadre of IFS and he shall only be granted the pensionary benefits, as due and admissible, with effect from the date he would have retired from IFS had he been promoted in pursuance of Notification dated 17.05.2018.
iv) The above consideration shall also be made in respect of applicants in O.A.Nos.260/330/18, 260/331/18 & 260/332/18, being similarly situated persons."
Pursuant to the above direction, the Govt. of India issued notification dated 05.02.2020 (Annexure-A/8) promoting five retired persons (including the applicants in OA Nos. 329 to 332 of 2018) of State Forest Service of Odisha to Indian Forest Service notionally on the basis of inclusion of their names in the Select list 2008-A and 2009. It is the specific case of the applicant that out of five persons promoted to IFS, four are junior to him. Their names were further recommended by 4 O.A.No. 260/00092 of 2021 the Pr. Chief Conservator of Forests & HoFF, Odisha for subsequent notional promotion to various grades as per their year of allotment vide letter dated 20.11.2020 (Annexure-A/9). Being aggrieved by his non-selection, the applicant submitted representation on 21.01.2021 (A/18) and having received no response, he has filed this OA with the following prayers:
"(i) To admit the OA.
(ii) To modify the Notification dated 17.05.2018 (A/16) & Notification dated 24.05.2018 (A/17) issued by respondent No. 1 & respondent No.4 respectively.
(iii) To direct the respondent No. 1 & 4 to issue necessary renotification incorporating the name of the applicant placing him in the promotion list for the year 2008 extending the benefit of decision dated 04.12.2019, passed in OA No. 329/2018 of this Hon'ble Tribunal.
(iv) To direct the respondents to extend all the consequential and financial benefits retrospectively as has been extended to other similarly situated persons.
(v) To direct the respondents to calculate the arrear and pay the same with prevailing bank interest till it is actually paid.
(vi) To pass any other order........"
2. Respondent Nos. 3 and 4 have filed their counter inter alia stating that they are in no way responsible for non-notifying the name of the applicant for promotion to IFS. The name of 25 offices including the applicant was recommended to the appropriate authority and on 5 O.A.No. 260/00092 of 2021 receipt of approval of the name of 13 offices from Govt. of India their names were notified and, that they have acted upon the advice of respondent nos. 1 and 2 from time to time and, accordingly, the willingness/declaration of the applicant was called for vide letter dated 10.04.2018. Respondent no.1 had issued notification dated 17.05.2018, based on which the GA & PG Department (Resp. No.4) renotified the same on 24.05.2018. Further, the representation of the applicant dated 21.01.2021 is pending with respondent No.1 and till any instruction is received from respondent no.1 no action can be taken by respondent nos. 3 and 4.
3. Reply has also been filed by the Union of India (respondent no.1) inter alia stating that the promotion does not ipso facto confer any right on the member of the State Forest Service to be promoted to IFS. Applicant, although has sought reliefs to modify the notification dated 17.05.2018 and 24.05.2018, has not made the officers to be affected as private respondents. Hence, the OA is hit by non-joinder of parties. It is further submitted that promotion from State Forest Services to Indian Forest Services are governed by provisions of IFS (Appointment by Promotion) Regulation, 1966, which involves various steps. It is further submitted that the holding of Selection Committee Meeting falls within 6 O.A.No. 260/00092 of 2021 the domain of UPSC and State Government and the Ministry has no role in it. It has been however conceded that the name of the applicant was included in the select list for the year 2008-A for promotion to IFS in terms of the minutes of the meeting approved by the UPSC. However, his name was not included in the final notification issued by the ministry letter dated 17.05.2018 as at the time of issue of notification the applicant had retired from service and was no longer a member of the State Forest Service.
4. Applicant has filed rejoinder in which, besides reiterating the grounds taken in the OA, contentions of the respondents has been refuted. It is submitted that the respondent No.1 as well as respondent nos. 3 and 4 in their respective counter have not gone into the factual aspect of the matter and they are only passing buck on each other. It is submitted by the Ld Counsel for the applicant that the applicant is only seeking inclusion of his name against the recruitment year 2008-A and his claim is not going to affect anybody nor his inclusion in anyway will deprive any selected candidate since in the case of his notional promotion he will not get some additional financial benefits. He has relied on the decisions of the Hon'ble Apex Court in the case of Mathew David Vs. State of Kerla, (2021) 2 SCC (L&S) 310, UOI & Ors. Vs. Atul 7 O.A.No. 260/00092 of 2021 Shukla & Ors, (2015) 1 SCC (L&S) 81, to contend that applicant being similarly placed person and also his name being recommended by the same Selection Committee in the same select list, he cannot be denied the same benefit. Rely on the decision of Hon'ble Apex Court in the case of UOI Vs. Hemraj Singh Chouhan, AIR 2010 SC 1682, Ld. Counsel for the applicant submits that right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. It is further submitted that as per the orders of the Ernakulam Bench of this Tribunal in OA 1001/2015, 159/2016, 508/2017 and 559/2017, retirement from service cannot be a ground for non-consideration of case for promotion in IFS cadre. Hence, he has prayed for the relief as claimed in this OA.
5. Heard Ld. Counsel for the parties and perused the records.
6. The moot question for consideration is as to whether after issuance of notification dated 06.04.2018, consequent upon acceptance of the recommendation of the selection committee for promotion to Indian Forest Service, not giving effect to the said notification insofar as the applicant is concerned, is however justified. In this connection, it may be stated that the counters filed by respondent No.1 as well as respondent nos. 3 and 4 are conspicuously silent relating to giving 8 O.A.No. 260/00092 of 2021 effect to the notification promoting his juniors even after retirement. It is not in dispute that similarly situated officers have approached this Tribunal in OA Nos. 329 to 332 of 2018 and in compliance of the order of this Tribunal dated 04.12.2009, the applicants therein were shown to have been promoted to IFS retrospectively. Although respondent No.1 in his counter has accepted that the name of the applicant was included in the select list for the year 2008-A for promotion to IFS in terms of the minutes of the meeting approved by the UPSC but was not included in the final notification issued by the Ministry's letter dated 17.05.2018 as at the time of issue of notification the applicant retired from service. But, the aforesaid ground is no more res integra in view of the order passed by this Tribunal on 04.12.2009 in OA Nos. 329 to 332 of 2018. This Tribunal do not find any substantive grounds to defer from the view taken in OA Nos. 329 to 332 of 2018. Thus, in the aforesaid premises and by applying the doctrine of precedent, it is held that the grounds on which the applicant was denied the promotion, obviously and axiomatically falls flat and, consequently it is directed that, if there is no other impediment, the applicant is entitled to be promoted notionally, to the post of Indian Forest Service with effect from the date when his juniors were promoted to IFS. Accordingly, 9 O.A.No. 260/00092 of 2021 respondents are directed to issue the consequential orders within a period of sixty days from the date of receipt of a copy of this order.
7. With the aforesaid observations, the OA stands allowed. Parties to bear their own costs.
(PRAMOD KUMAR DAS) (SWARUP KUMAR MISHRA) MEMBER(A) MEMBER (J) RK/PS