Central Administrative Tribunal - Bangalore
I M Nagaraj vs Environment And Forest on 16 April, 2024
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OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NOS.170/00443/2022,
170/00482/2022 & 170/00099/2023
ORDER RESERVED ON: 05.03.2024
DATE OF ORDER: 16.04.2024
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
1. OA No. 443/2022
Shri Sudarshan N.D.,
S/o V. N. Doreswamy Iyengar,
Aged about 63 years,
Retired as Deputy Conservator of Forest,
Department of Environment, Forest & Ecology
and residing at No.7,
"Sujay", 1st 'C' Main Road,
Muthyala Nagar,
Bengaluru 560054. ...Applicant
(By Advocate Shri A. Vishwanath Bhat)
Vs.
1. The Union of India,
Represented by its Secretary,
Department of Personnel Public Grievance
and Pensions,
North Block,
New Delhi-110 001.
2. The Union of India,
Represented by its Secretary,
Ministry of Environment, Forest
And Climate Change,
Indira Paryavaran Bhavan,
6th Floor, Pruthvi Block,
Jorbagh Road,
Aliganj,
New Delhi- 110 003.
3. Union Public Service Commission,
Represented by the Secretary,
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OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
Dolpur House
Shahajahan Road,
New Delhi-110 001.
4. The State of Karnataka,
Represented by the Chief Secretary,
Department of Personnel & Administrative Reforms,
Vidhana Soudha,
Bengaluru-560 001.
5. The State of Karnataka,
Represented by Addl. Chief Secretary,
Department of Forest, Environment & Ecology,
M.S. Buildings,
Dr. Ambedkar Veedhi,
Bengaluru-560 001. ...Respondents
(By Shri S. Prakash Shetty, Sr. Panel Counsel for Respondent Nos. 1 and 2, Shri
N. Amaresh, Sr. Panel Counsel for Respondent No. 3 & Shri M. Rajakumar,
Advocate for Respondents No. 4 and 5.)
2. OA No. 482/2022
Shri Devaraja,
S/o Krishnayya Balegar,
Aged about 62 years,
Retired as Deputy Conservator of Forest,
Department of Environment, Forest & Ecology
and residing at Radhakrishna Nilaya,
Someshwara Temple Road,
Byndoor- 576 214,
Udupi District. ...Applicant
(By Advocate Shri A. Vishwanath Bhat)
Vs.
1. The Union of India,
Represented by its Secretary,
Department of Personnel Public Grievance
and Pensions,
North Block,
New Delhi-110 001.
2. The Union of India,
Represented by its Secretary,
Ministry of Environment, Forest
And Climate Change, -
Indira Paryavaran Bhavan,
6th Floor, Pruthvi Block,
Jorbagh Road,
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OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
Aliganj,
New Delhi- 110 003.
3. Union Public Service Commission,
Represented by the Secretary,
Dolpur House
Shahajahan Road, New Delhi-110 001.
4. The State of Karnataka,
Represented by the Chief Secretary,
Department of Personnel & Administrative Reforms,
Vidhana Soudha, Bengaluru-560 001.
5. The State of Karnataka,
Represented by Addl. Chief Secretary,
Department of Forest, Environment & Ecology,
M.S. Buildings,
Dr. Ambedkar Veedhi,
Bengaluru-560 001. ...Respondents
(By Shri S. Prakash Shetty, Sr. Panel Counsel for Respondent Nos. 1 and 2, Shri
N. Amaresh, Sr. Panel Counsel for Respondent No. 3 & Shri M. Rajakumar,
Advocate for Respondents No. 4 and 5.)
3. OA No. 99/2023
Shri I.M. Nagaraj
S/o Manja Naik,
aged about 61 years,
retired as Deputy Conservator of Forests,
Office of the Deputy Conservator of Forests,
Department of Forests, Ecology and Environment,
Shivamogga- 577 201.
Residing at Vismaya Complex,
Lagan Mandira Road,
Swamy Vivekananda Layout,
Shivamogga- 577 205. ...Applicant
(By Advocate Shri Prithveesh M.K.)
Vs.
1. The Union of India,
Represented by its Secretary,
Department of Personnel & Training,
Ministry of Personnel Public Grievance
and Pensions,
North Block,
New Delhi-110 001.
2. The Union of India,
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OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
Represented by its Secretary,
Ministry of Environment, Forest
And Climate Change,
Indira Paryavaran Bhavan,
6th Floor, Prithvi Block,
Jor Bagh Road,
Ali Ganj,
New Delhi- 110 003.
3. Union Public Service Commission,
Represented by its Secretary,
Dholpur House
Shahajahan Road,
New Delhi-110 001.
4. The State of Karnataka,
Represented by the Chief Secretary,
Department of Personnel & Administrative Reforms,
Vidhana Soudha,
Bengaluru-560 001.
5. The State of Karnataka,
Represented by Additional Chief Secretary,
Department of Forests, Ecology & Environment,
M.S. Buildings,
Dr. Ambedkar Veedhi,
Bengaluru-560 001. ...Respondents
(By Shri S. Prakash Shetty, Sr. Panel Counsel for Respondent Nos. 1 and 2, Shri
N. Amaresh, Sr. Panel Counsel for Respondent No. 3 & Shri M. Rajakumar,
Advocate for Respondents No. 4 and 5.)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. All the three Original Applications mentioned above are taken up together for disposal, as a common question of law with similar facts are involved in all these three cases. With the consent of learned counsels for the parties, the facts are being extracted from "OA No: 170/00443/2022 titled Shri Sudarshan N.D versus UOI and others" and the said case has been treated as the lead case.
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OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
2. The applicant Sri Sudarshan N.D has filed the present Original Application No: 443/2022 under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) To quash the impugned order bearing F. No. 17013/02/2021-IFS-II dated 29.09.2022 (Annexure-A16) vide which the request of the applicant for induction into IFS in Select List 2015 has been rejected.
b) To direct the respondents to grant the applicant pro-forma promotion to India Forest Service for the vacancy year of 2015 in pursuance to the Select List dated 31.03.2022 and grant the applicant all the consequential benefits like pay fixation, seniority, arrears of salary and other benefits and accordingly re-fix his pay and pension which he is legally entitled as if he was promoted to the cadre of Indian Forest Service for the vacancy year of 2015.
c) Grant such other relief or reliefs as this Tribunal deems fit including the costs of these proceedings, in the interest of justice and equity.
3. The facts of the case as averred by the applicant in his pleadings, are as follows:
a) The applicant was appointed as Range Forest Officer in the month of March, 1981. Subsequently, the applicant was promoted to the post of Assistant Conservator of Forest in the year 1997. He was further promoted to the post of Deputy Conservator of Forest (non-IFS) in the year 2011. The applicant retired from service on attaining the age of superannuation in the month of March, 2019.6
OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
b) The applicant is entitled for promotion to the Indian Forest Service for the vacancy years 2013, 2014 and 2015. The seniority list of Assistant Conservator of Forest was under litigation, since the granting of seniority for the SC & ST was the subject matter before the Hon'ble Supreme Court in the matter of B.K. Pavithra Vs. State of Karnataka. The list of eligible officers for promotion to the post of Indian Forest Service was not prepared in time for the vacancy years 2013, 2014 and 2015.
c) Ultimately, in pursuance to the decision of the Hon'ble Supreme Court in the case of B.K. Pavithra Vs. Union of India in Appeal No.2368/2011 dated 10.05.2019, a final seniority list of Assistant Conservator of Forest was prepared and published by the Respondent No.5.
d) It was intimated to the applicant by the Respondent No.4 that in pursuance of the decision of the Hon'ble Supreme Court in the case of B.K .Pavithra Vs. State of Karnataka, reported in 2019 SC 2723, the 4th respondent has not received complete information for preparation of the Select List of the years 2013 to 2017 from the Respondent No.5. On receipt of the full information from the Respondent No.5, the proposal will be submitted to the UPSC.
e) Since the case of the applicant for promotion to the cadre of Indian Forest Service was not considered, he filed an application before this Tribunal for a writ of mandamus directing the respondents to consider the claim of the applicant for empanelment to Indian Forest Service cadre for the Select List of 2013. The said application was disposed of 7 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench by this Tribunal on 06.06.2019 based on the submissions made by the State Government that there will not be any difficulty in considering the applicant's case for empanelment and consequential benefits.
f) In spite of the consent given by the Advocate for the State Government, the Select List of eligible officers was not prepared and published by the State Government.
g) The 2nd respondent once again wrote a letter dated 27th July 2020 to the Respondent No.5 for determining the vacancy in promotional quota to Karnataka cadre of for the Select List 2013 (as on 01.01.2014) to Select List 2019 (as on 01.01.2020).
h) As per the said letter the total number of vacancies for various Select Lists in the State of Karnataka were determined as follows:
Select List of 2013 - Three
Select List of 2014 - One
Select List of 2015 - Five
Select List of 2016 - Three
Select List of 2017 - Four
Select List of 2018 - Twelve
Select List of 2019 - Seven
i) As can be seen from above, for the last seven years, Select List was not prepared for the vacancy years 2013 to 2019. Thereby the eligible officers have been deprived of their promotions.
j) Some of the eligible officers filed OAs before this Tribunal for a writ of mandamus directing the State Government to prepare and publish 8 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench the list of eligible officers for promotion to the IFS cadre for the Select List of 2013 till 2020. The said application was allowed by this Tribunal and a direction was issued to the State Government to prepare and send the list of eligible officers from SFS cadre for promotion to the IFS cadre and send the same to the UPSC for further necessary action.
k) Pursuant to the directions issued by this Tribunal, a proposal was sent by the State Government for promotion to the post of IFS as per the Indian Forest Service (Appointment by Promotion) Regulations, 1966. Thereafter, on 31.03.2022, the UPSC approved the Select List for promotion from SFS (Karnataka) cadre to the IFS for the Select List years from 2013 to 2020. In the said List, the name of the applicant finds place at Sl. No. 1 for the Select List of 2015.
l) The applicant was selected in the Select List of 2015. However, he has not been issued with the appointment order on the grounds that the applicant has retired from service as on the date of issuing of the appointment order. There are a total of five posts for the vacancy year of 2015. Out of five notified vacancies, only two persons have been appointed to Indian Forest Service from Karnataka cadre. The other three posts have not been filled up on the ground that the persons included in the Select List for the vacancy year 2015 have retired from service including the applicant.
m) When the applicant's case was not proposed for pro-forma promotion, he made a representation on 22.06.2022 with a request to consider his case for pro-forma promotion from the date on which he was eligible 9 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench and grant him all consequential benefits. The said request was rejected by issuing an endorsement on 29.09.2022 (Annexure-A16). The applicant is aggrieved by this rejection and hence this OA.
n) As per the Rules, the Selection Committee is required to meet every year based on the vacancy notified by the UPSC. Admittedly, in the instant case for the vacancy year 2013 to 2020, the Selection Committee did not hold its meeting. If the Selection Committee had met every year for the vacancy years 2013, 2014, 2015 for promotion to the post of IFS, the applicant would have got the benefit of promotion. For the lapse on the part of the respondents, the Applicant has been deprived of right to have his case considered for promotion to IFS. The Selection Committee met only in the year 2022 for the vacancy years of 2013 to 2020. For the delay on the part of the respondents, the applicant cannot be penalized.
o) The Rules do not prohibit giving a pro-forma promotion from the date on which they become eligible to hold the said post. If the selection committee had met every year based on the vacancy, the applicant would have got promotion for the vacancy year of 2015. Further, the serving employees to whom promotions have been issued are getting the promotion from the vacancy year in which they were promoted. Therefore, the denial of the said benefit to the applicant is nothing but denial of right as guaranteed under Articles 14, 16 and 21 of the Constitution of India.
p) The Indian Forest Service (Appointment by Promotion) Regulations, 1966 nowhere mention that the names of officers selected and 10 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench approved are to be eliminated while issuing the appointment order if such Government servant have retired from service. The elimination of the name of the applicant from the Notification dated 30.05.2022 for appointment to IFS cadre is illegal, arbitrary, unjust and it violates the rights guaranteed under Articles 14, 16 and 21 of the Constitution of India apart from Indian Forest Service (Appointment by Promotion) Regulations, 1966.
q) In the case of Union of India and another Vs. Hemaraj Singh Chouhan and others in Civil Appeal Nos. 2651-52/2010 decided on 23.03.2010 by interpreting word "ordinary" as contained in Rule 5. The Hon'ble Supreme Court in paragraph 47 held as follows:-
"47. It was urged before this court that the insertion of the word "ordinary" will make difference. Replying the said contention the Court held that the word "ordinary" does not alter the underlying intentment of the provision. This Court made it clear that unless there is very good reason for not doing so, the Selection Committee shall meet every year for making the selection."
r) Promotion has to be accorded to a person from the date of vacancy accrued and in such an event, the ratio laid down by the Hon'ble Supreme Court in the case of P. N. Premachandran Vs. State of Kerala and others in Civil Appeal No.4100/1998 decided on 06.11.2003 is fully applicable to the facts of the present case.
s) The applicant has placed reliance on the orders passed by this Tribunal in OA No: 390/2016 dated 9th January 2017 titled Sri S.P. Raju and Sri KL Raghavendra versus UOI and others vide which it was held that 11 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench the applicants were entitled to proforma promotion with effect from the year 2009. It was further held that they will not get arrears of pay in respect of the period from 2009 until they retired from service. However, they would be entitled to retirement benefits after refixation of their pension.
t) The applicant has also relied on another case decided by the Ernakulum Bench of this Tribunal in OA 723/2019 dated 3rd October 2029 in the case of CT Joju versus UOI, where a relief had been granted to the applicant that his retirement on 31.7.2019 will not stand in the way of his promotion to the IFS.
4. The Respondents No. 1 and 2 (Department of Personnel, Public Grievance and Pensions & Ministry of Environment and Forest, New Delhi) have filed their written statement wherein they have averred as follows:-
a) The procedure for induction of SFS officers to IFS is governed by the Indian Forest Service (Appointment by Promotion) regulations, 1966.
The promotion from SFS to IFS involve various steps like determination of vacancies for a particular Select year, preparation and forwarding of proposal by state Government to UPSC, holding of SCM, concurrence of minutes, Notification of Select List, formal proposal from State Government for appointment into IFS, and issue of appointment order.
b) The appointment to IFS is subject to providing the following information by the State Government in respect of the officers recommended by the Selection Committee:-
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OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
i) A declaration of singular marital status.
ii) Written consent for termination of lien in the State Forest Service on confirmation in the Indian Forest Service.
iii) A certificate by the State Government that there is no stay order of any court prohibiting the appointment of State Forest Service officers by promotion to the Indian Forest Service.
iv) A certificate by the State Government, that there is no disciplinary/vigilance case pending/contemplated against the officers recommended for promotion.
c) As per clause 9 (i) of IFS (Appointment by Promotion) Regulations 1966, appointment of a member of the State Forest Service, who has expressed his willingness to be appointed to the Service, shall be made by the Central Government in the order in which the names of members of the State Civil Service appear in the Select List for the time being in force during the period when the select list remains in force. From a reading of this clause, it implies that appointment will be done only in respect of 'a member of the State Forest Service'.
d) The name of the applicant was considered and included in the Select List 2015 (Annexure A-13 to OA) for promotion to IFS. However, the applicant was not a member of State Forest Service at the time of issuance of final notification, as he had already retired from State Forest Service. Hence his name was not included in the appointment notification (Annexure A-14 to OA). The OA is totally bereft of any merits and is liable to be dismissed.13
OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
5. The Respondents No. 3 (Union Public Service Commission) has filed their written statement wherein they have averred as follows:-
a) The proposal for preparation of year-wise Select List of 2013 to 2020 for promotion of SFS officers to the IFS of Karnataka Cadre was submitted to the Commission by the State Government of Karnataka, vide letter dated 05.08.2021. There were some deficiencies in the proposal which were rectified completely by the State Government vide letter dated 07.12.2021 making the proposal complete.
b) After completion of the proposal, the Selection Committee Meeting (SCM) was held on 15.02.2022 for preparation of year-wise Select List of 2013 to 2020 for promotion to the IFS of Karnataka Cadre. The name of the Applicant (whose date of birth is 31.03.1959) was included at Sl. No. 1 in the Select List of 2015 unconditionally. The Select Lists were approved by the Commission on 29.03.2022 and acted upon by the Government of India, Ministry of Environment, Forest & Climate Change, vide Notification dated 31.03.2022.
c) The officers whose name were included unconditionally in the Select Lists and were in service, were appointed on promotion to the IFS of Karnataka Cadre by the Government of India, Ministry of Environment, Forest & Climate Change, vide Notification dated 30.05.2022. The Applicant had already retired from SFS on 31.03.2019. He was not in service on the date of issue of the Notification and was therefore not appointed to the IFS. 14
OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
d) With reference to the representation of the Applicant requesting for his induction into IFS from the Select List of 2015, the Government of India, Ministry of Environment, Forest & Climate Change, vide letter dated 29.09.2022, intimated the Applicant that in absence of any enabling provision in the IFS (Appointment by Promotion) Regulations, 1966 for induction of any retired officer of SFS into IFS, the Ministry is unable to consider the request of the Applicant.
e) After the Select List is approved by the Commission, appointment to the IFS in respect of the officers included unconditionally in the Select List is made by the Government of India, Ministry of Environment, Forest & Climate Change. The Commission has no role to play for appointment to IFS. Therefore, the submission made in this regard by the Government of India, Ministry of Environment, Forest & Climate Change may please be referred to by the Tribunal.
6. The Respondents No. 4 (State Government of Karnataka) has filed their written statement wherein they have averred as follows: -
a) The State Government had recommended the name of the applicant to Union Public Service Commission vide letter DAR 58 SFP 2021 dated 28.08.2021 for consideration for promotion to IFS for the select list year 2015.
b) In the selection committee meeting held on 15.02.2022, the UPSC has selected the applicant for the select list year 2015 for promotion to IFS. Since the applicant had already retired from the service on 15 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench superannuation on 31.03.2019, hence he was not included in the Notification for appointment to IFS issued by the GOI on 30.05.2022.
c) The applicant has made a representation to UPSC and requested for induction into IFS in select list year 2015. The Government of India vide its letter dated 29.09.2022 addressed to the applicant has stated that "in absence of any enabling provision in IFS (Appointment by Promotion) Regulation, 1966 for induction of any retired officer of SES to IFS and also that only a member of the service can only be inducted into IFS". The Respondent respectfully prays this Tribunal to dismiss the Original Application filed by the applicant in the interest of equity and justice.
7. Heard learned counsel for the parties and perused the pleadings made by them.
8. The applicant had been considered for appointment under the relevant provisions prescribed under the Indian Forest Service (Appointment by Promotion) Regulations, 1966 ("IFS Regulations"). This consideration was based upon the proposal sent by the State Government to the UPSC vide their letters dated 05.08.2021 and 07.12.2021. The proposals sent by the State Government were for the Select List years from 2013 to the year 2020. The UPSC after holding the Selection Committee meeting on 15.02.2022 prepared the year wise Select List of years from 2013 to year 2020 for promotion to the IFS Cadre of Karnataka Cadre.
9. There is no doubt that as per the existing provisions of the Rules, the meeting to prepare the select list for each year are required to be held in that year as 16 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench far as possible. In the present case, the facts as revealed in the pleadings indicate that due to disputes and pending court cases in finalizing the seniority lists in the cadre of State Forest Service officers in the State of Karnataka, the State Government was not able to send any proposal to the UPSC for preparation of the select list. It is only after disposal of the case titled B.K. Pavithra vs. Union of India in Appeal No. 2368/2011 dated 10.05.2019 by the Honourable Apex Court that the final seniority list of State Forest Service officers could be finalized and published by the State Government. The reason for this delay may not be attributable to the applicant. However, the State Government was unable to send any proposal for consideration by the UPSC in this period due to the fact that the seniority list of SFS Officers could not be finalized due to legal disputes. This is certainly a valid reason due to which the Select Committee meetings for the year 2013 to 2020 could not be held in these years as per rules.
10. The name of the applicant had been included at SL No. 1 in the Select List Year of 2015. However, he has not been appointed by the Government of India since he had already retired from the State Forest Service after attaining the age of superannuation (60 years) on 31.03.2019.
11. The Indian Forest Service (Appointment by Promotion) Regulations, 1966 contain the following provisions pertaining to appointment to the service from the Select List approved by the UPSC:
"Appointments of member of the State Forest Service, who has expressed his willingness to be appointed to the Service, shall be made by the Central Government in the order in which the names of the 17 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench members of the State Forest Service appear in the Select List for the time being in force during the period when the Select List remains in Force:
Provided that the appointment of members of the State Forest Service shall be made in accordance with the agreement arrived at under sub- rule (3) of Rule 8 of the recruitment rules in the order in which the names of the members of the State Forest Service occur in the relevant parts of the Select List for the being in force:
Provided further that the appointment of an officer, whose name has been included or deemed to be included in the Select List provisionally, under proviso to sub-regulation (4) of Regulation 5 of under the proviso to sub-regulation (3) of Regulation 7, as the case may be, shall be made within sixty days after the name is made unconditional by the Commission, in terms of the first proviso to sub-regulation (4) of Regulation 7:
Provided also that in case a Select List officer has expressed his unwillingness for appointment to the service, he shall have no claim for appointment to the Service from that Select List unless the informs the Central Government through the State Government before the expiry of the validity period of the Select List, revoking his earlier expression of unwillingness for appointment to the Service."
12. The Indian Forest Service (Recruitment) Rules, 1966 specify the following methods of Recruitment to the Indian Forest Service:
4. Method of recruitment to the Service:--
4 (2) Recruitment to the service shall be by the following methods, namely 18 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
(a) by a competitive examination
(b) by promotion of substantive members of the State Forest Service, 4(3) Subject to the provisions of these rules,
a) the method or methods of recruitment to be adopted for the purpose of filling up any particular vacancy or vacancies as may be required, to be filled during any particular period of recruitment, shall be determined by the Central Government in consultation with the Commission and the State Government concerned;
b) the number of persons to be recruited by each method shall be determined on each occasion by the Central Government in consultation with the State Government concerned; 4(4) Notwithstanding anything contained in sub-rule (2), if in the opinion of the Central Government the exigencies of the service so require the Central Government may, after consultation with the State Government' and the Commission, adopt such methods of recruitment to the service other than those specified in the said sub-rule, as it may, by regulations made in the behalf prescribe.
13. The Indian Forest Service (Appointment by Promotion) Regulations, 1966 prescribe the procedure to be followed for appointment of Indian Forest Service Officers by promotion from the available pool of State Forest Officers, by the Government of India. As per the prescribed procedure, the State Government forwards names of suitable and eligible forest service officers in the order of their seniority in the State Forest Service, for consideration to a committee set up by the UPSC. This Committee is entrusted with the task of considering and preparing the final select list of suitable officers belonging to the State Forest Service for appointment to the Indian Forest Service. The officers from this final select list, so prepared by the UPSC, are then considered for appointment to the Indian Forest Service 19 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench by the Government of India which is the appointing authority for appointment to the IFS.
14. This entire process of appointment is akin to that of a fresh appointment to the Indian Forest Service. It is completely distinct from the process followed for grant of promotion to an employee within his existing service/cadre. The Indian Forest Service (Appointment by Promotion) Regulations, 1966 clearly state that this is a process of appointment to a new service/cadre namely Indian Forest Service. It involves termination of lien from the State Forest Service. This appointment, therefore, is appointment to a new service and cannot be considered as a promotion in the usual sense of a term, where a person gets a promotion to a higher post within his service/cadre.
15. The Indian Forest Service (Appointment by Promotion) Regulations, 1966 clearly specify that only those persons, who are members of the State Forest Service, can be appointed under this mode of appointment, to the Indian Forest Service, subject to their names being available for appointment in the Select List prepared by the UPSC. This implies that at the time of appointment to the IFS, the name of the person should figure in the select list in force, the person should be a member of the State Forest Service and he should also be otherwise eligible for appointment to the Indian Forest Service.
16. In the present case, the applicant had already retired from the State Forest Service after attaining the age of superannuation of 60 years in March 2019. Hence, he was ineligible for appointment to the Indian Forest Service since he was no more a member of the State Forest Service. He had also crossed the prescribed age of superannuation even for the IFS, the service to which 20 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench he was to be considered for appointment, on 31.3.2019, around three years prior to his name being included in the Select List finalised by the UPSC on 31.3.2022.
17. The applicant has prayed for grant of pro-forma promotion to the Indian Forest Service for the vacancy year 2015. However, there is no provision under the Indian Forest Service (Appointment by Promotion) Regulations, 1966, for appointment to the service with effect from any date prior to the date on which the select list has been finalised by the UPSC.
18. As per the provisions under the Indian Forest Service (Appointment by Promotion) Regulations, 1966, the process to be followed by the Appointing Authority (GOI) for appointment to the IFS is as follows:
9. Appointments to the Service from the Select List:-
9(1) Appointment of a member of the State Forest Service, who has expressed his willingness to be appointed to the service shall be made by the Central Government in the order in which the names of the members of the State Forest Service appear in the Select List for the time being in force during the period when the Select List remains in force.(emphasis added) ....
Provided also that in case a Select List officer has expressed his unwillingness for appointment to the service, he shall have no claim for appointment to the service from that select list unless he informs the Central Government through the State Government before the expiry of the 21 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench validity of the Select List revoking his earlier expression of unwillingness for appointment to the service.
19. A perusal of these rules clearly indicates that the appointment to the IFS has to be made from the select list in force, from persons who are members of the state forest service and have expressed their willingness to join the IFS. There is no provision for any retrospective appointment on notional basis with effect from the date of the select list year. All appointments are made from the date when the select list is in force. This date cannot be earlier than the date on which the select list has been finalised by the UPSC. All appointments to the IFS of any state forest officer, therefore, can only be from a date subsequent to the date of finalisation of the select list by the UPSC, while it is in force.
20. The inter-se seniority as well as the year of allotment for IFS Officers appointed on promotion from the State Forest Service is also determined on the basis of the year in which the select committee meeting has been held and not the select year for which the vacancies had been filled. This is clearly specified in the IFS (Regulation of Seniority) Rules, 1997 as follows:
"Rule 3(3)(ii): The year of allotment of a promotee officer shall be determined with reference to the year for which the meeting of the Committee to make selection, to prepare the select list on the basis of which he was appointed to the Service, was held and with regard to the continuous service rendered by him in the State Forest Service, not below the rank of Assistant Conservator of Forests or equivalent up to the 31st day of December of the year immediately before the year for which meeting of the Committee to make selection was held to prepare the select list on the basis of which he was appointed to the Service, in the following manner:- (emphasis added) 22 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
(a) for the service rendered by him upto twenty one years, he shall be given a weightage of one year for every completed three years of service, subject to a minimum of four years;
(b) he shall also be given a weightage of one year for every completed two years of service beyond the period of twenty one years, referred to in sub-clause (a), subject to a maximum of three years.
Explanation: For the purpose of calculation of the weightage under this clause, the fractions, if any, are to be ignored.
Provided that he shall not be assigned a year of allotment earlier than the year of allotment assigned to an officer senior to him in that select list or appointed to the service on the basis of an earlier select list.
21. In the present case, the select lists of the year 2013 to 2020 were finalised by the Committee in UPSC on 31.3.2022. All these select lists were in force only prospectively from 31.3.2022. The applicant had already attained the age of 60 on 31.3.2019 i.e. three years prior to the date when these select lists came in force after finalisation of the select list. The appointment orders dated 30th May 2022, of those persons figuring in these select lists, who were still members of the State Forest Service, and had not superannuated on the date of their appointment (i.e. 30th May 2022), were issued, by the Respondents strictly as per the IFS Regulations.
22. The applicant had already attained the age of superannuation more than three years prior to the date when the select list of 2015 came in force on 31.3.2022. He cannot therefore, be appointed from a retrospective effect from 2015 on the basis of his select year, as prayed for by him. There is no provision to appoint any person with effect from the date of the select list year. All the officers in the select list are appointed from the date when the select list is in force subsequent to the date when the select list is notified. 23
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23. The applicant retired in March 2019, whereas the select list was finalised on 31.3.2022 and came in force from that date. He was neither a member of the State Forest Service on 31.3.2022, nor was he eligible to be appointed in the Indian Forest Service having already attained the age of superannuation even for the IFS at that time. Hence his prayer for appointment to the Indian Forest Service on notional basis from the select year of 2015, being contrary to the IFS Regulations, cannot be accepted and deserves to be dismissed.
24. The applicant has quoted the case of P. N. Premachandran Vs. State of Kerala and others in Civil Appeal No.4100/1998 decided on 06.11.2003 by the Apex Court. However, a perusal of the facts in that case reveal that it pertained to the issue relating to promotion to the post of Assistant Director (Soil Survey), from the post Soil Survey Assistant under the Government of Kerala. The issue in that case was concerning a regular promotion of a person to a higher post within the same cadre/service. Hence the facts in that case are completely distinct, and are not at all relevant to the case in hand, which pertains to appointment to the IFS by promoting State forest service officers, under the IFS Regulations.
25. The applicant has also quoted the case of Shri C.T. Joju, a State Forest Service Officer from Kerala wherein the Ernakulum Bench of this Tribunal had ordered in OA No. 723/2019 dated 03.10.2019 that his retirement will not stand in the way of promotion to the Indian Forest Service if otherwise found fit. Shri Joju, a State Forest Officer from Kerala, had retired after attaining the age of superannuation on 31.07.2019. In the State of Kerala, the age of superannuation of State Forest Officer was 56 years, at that time. Hence, at the time of his consideration for appointment to the Indian Forest 24 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench Service, he had not crossed the age of superannuation of 60 years prescribed for officers belonging to the Indian Forest Service. There are many similar cases of officers from the State of Kerala who had retired from the State Forest Service on superannuation at the age of 56 years, but were still eligible to be considered for appointment to the IFS, since they had not crossed the age of superannuation of 60 years prescribed for the Indian Forest Service. In the peculiar circumstances of such cases, based on specific orders from the courts, their cases could have been considered for appointment to the IFS, although they may have retired from the State Forest service. However, the same cannot be applied in the facts of the present case.
26. In the case of Shri SP Raju and Shri KL Raghavendra, in OA 390-391 of 206, quoted by the applicant, a perusal of the orders passed by this Tribunal in OA 390-391 of 2016 dated 9th January 2017, reveal that the applicants in that case had retired on 30.9.2015 and 31.7.2015 respectively. The Select Committee Meeting (SCM) in their case was held on 25.11.2014. However, the matter of their appointment to the IFS was delayed due to further litigation in KAT. Meanwhile one officer whose name was included in the select list held on 25.11.2014 was subjected to a punishment. All these matters were sorted out and the final notification of appointment was issued on 26.11.2015 by which time both these applicants had retired. The facts in that case are quite different from the present case since in that case the SCM was held on 25.11.2014 and the applicants at that point of time were very much in service as members of the State Forest Service and had not yet superannuated. The final orders of appointment were however delayed due to litigation and some other unforeseen issues in that case. Be that as it may, 25 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench the applicants have failed to provide any copy of the order of their appointment to the IFS by the GOI, indicating that the order passed in OA 390-391 of 2016 had attained finality.
27. In the present case, the applicant had already crossed the age of 60 years which is also the age of superannuation for Indian Forest Service on 31.03.2019. He has been included in the Select List of 2015, based on the SCM held in the year 2022 three years after his retirement. Consequently, he is ineligible to be appointed to the Indian Forest Service since he is no longer a member of the State Forest Service in 2022. He has also crossed the age of superannuation of 60 years prescribed for the Indian Forest Service.
28. Keeping the above facts in view, the OA 443 of 2022 filed by Sri Sudarshan ND lacks merit and deserves to be dismissed.
29. In OA No. 482/2022 filed by Shri Devaraja, the facts of the case, as revealed from the pleadings, indicate that the applicant was serving as Deputy Conservator of Forests, Non-IFS in the State Government of Karnataka. He retired from the state forest service on attaining the age of superannuation on 31.10.2020. The State Government recommended his name to the UPSC vide letter dated 28.08.2021 for consideration for promotion to the Indian Forest Service for the Select List year of 2016.
30. In the Selection Committee Meeting held by UPSC on 15.02.2022, the UPSC placed the name of the applicant in the Select List year of 2016 for consideration for appointment to the IFS. However, since the applicant had already superannuated on 31.10.2020, hence his name was not included in 26 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench the Notification dated 30.05.2022 vide which the officers from the Select List were appointed to the Indian Forest Service of Karnataka Cadre.
31. The facts in this case indicate that at the time of finalizing the Select List for the year 2016, on 31.3.2022, the applicant Sri Devaraja was neither a member of State Forest Service, nor was he eligible to be appointed in the Indian Forest Service having already attained the age of superannuation for the Indian Forest Service. Hence his prayer for appointment to Indian Forest Service on notional basis, being contrary to Indian Forest Service (Appointment by Promotion) Regulations, cannot be accepted. The OA 482/2022, therefore lacks merit, and deserves to be dismissed.
32. In OA No 99/2023 filed by Shri I.M. Nagaraj, the facts of the case as revealed from the pleadings submitted by the parties are as follows:-
a) The applicant was serving as a Deputy Conservator of Forests in the State Forest Service of Karnataka. He attained superannuation on 31.12.2022. In his case, the State Government had forwarded his name to the Union Public Service Commission vide letter dated 28.09.2021 for consideration for promotion to the Indian Forest Service for the Select List year of 2018.
b) In the Selection Committee meeting held by UPSC on 15.02.2022, the names of two SFS Officers, Shri Chandranna A. and Shri Nagaraj I.M. (applicant herein) were included against the vacancy year of Select List of 2015 and 2018 respectively. However, their inclusion was 'provisional' due to ongoing disciplinary proceedings against them. 27
OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
c) The State Government vide letter dated 16.11.2022 intimated to the UPSC that the disciplinary proceedings initiated on 03.07.2021 and 25.02.2020 against Shri Chandranna A. have been closed, vide Order dated 10.06.2022 and 19.09.2022 respectively. The State Government vide another letter dated 19.09.2022 intimated that in the disciplinary proceedings initiated on 05.02.2018 and 26.04.2019 against Shri Nagaraja I.M., he has been exonerated by the State Government vide Order dated 14.10.2022 and 02.11.2022 respectively. The integrity of both the officers was also been certified by the State Government. The State Government also intimated, vide letter dated 07.12.2022 that there is no other Departmental/Criminal Proceedings pending against them.
d) Consequently, the matter was examined by the UPSC and it decided to declare the provisional inclusion of the name of Shri Chandranna A at SL No.3 in the Select List of 2015 and Shri Nagaraja I.M. at SL No. 11 in the Select of 2018, for promotion of Indian Forest Service of Karnataka Cadre, prepared by the Selection Committee in its Meeting held on 15.02.2022, as "Unconditional and final". This decision was conveyed to the Central Government (Respondent No: 2) vide letter dated 28.12.2022.
e) This letter dated 28.12.2022 was received by the Government of India (Respondent No: 2) on 29.12.2022 and the file was processed on the same date as reported by Respondent No. 2. However, since the applicant superannuated from service on 31.12.2022, in absence of enabling provision in IFS (Appointment by Promotion) Rule, 1966 for 28 OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench appointment of retired SFS officer into IFS, the notification regarding induction of the applicant into IFS could not be done.
f) Shri Chandranna A, whose inclusion in the Select List had been declared as 'unconditional and final' for the Select List of 2015 vide letter dated 28.12.2022 by the UPSC, was subsequently appointed to IFS vide notification dated 10.01.2023, since Shri Chandranna A had not superannuated and was still in service on the date of his appointment.
33. From the available facts in this case, it is apparent that the name of Shri Nagaraja I.M. was declared as 'Unconditional and Final' by the UPSC on 28.12.2022 while he was still in service. He could possibly have been appointed after his "final and unconditional" inclusion in the Select List prior to his date of superannuation on 31.12.2022. However, Respondent No. 2 did not issue the final notification appointing him to the Indian Forest Service on the basis of inclusion of his name in the Select List of 2018 on 28.12.2022.
34. Given the above facts of the case, it would be appropriate for Respondent No. 2 to re-consider the matter and appoint the applicant Shri Nagaraj I.M. w.e.f. 28.12.2022 to the Indian Forest Service on the basis of the inclusion of his name in the Select List of 2018 by the Union Public Service Commission as 'Unconditional and Final' on 28.12.2022 prior to his date of superannuation on 31.12.2022.
35. Accordingly, the OA No: 443/2022, No: 482/2022 and No: 99/2023 are disposed of with the following directions:
29
OA.No.443/2022, 482/2022 & 99/2023/CAT/Bangalore Bench
a) OA Nos: 443/2022 filed by Sri Sudarshan ND, and OA No: 482/2022 filed by Sri Devaraja, being devoid of any merit whatsoever, are dismissed.
b) In OA No: 99/2023 filed by Sri I.M. Nagaraj, Respondent No. 2 is directed to re-consider the matter and appoint the applicant Shri Nagaraj I.M., if otherwise found fit, w.e.f. 28.12.2022 to the Indian Forest Service on the basis of inclusion of his name in the Select List of 2018 by the Union Public Service Commission as 'Unconditional and Final' on 28.12.2022, prior to his date of superannuation on 31.12.2022. Such an order shall be issued after due consideration, by Respondent No: 2, in an expedite manner, not later than eight weeks from the date of receipt of a certified copy of this order.
36. However, there shall be no order so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
/hy/