Calcutta High Court (Appellete Side)
Mirza Asghar Sultan vs The Union Of India & Ors on 17 June, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
Form No. J (2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice Pratap Kumar Ray.
And
The Hon'ble Justice Harish Tandon.
COCT No.1 OF 2010
Mirza Asghar Sultan
Versus
The Union of India & Ors.
With
W. P. C.T No. 20 of 2010
State of West Bengal Bengal & Ors.
Versus
Mirza Asghar Sultan & Ors.
For the petitioner in : Mr. Bikash Ranjan Bhattacharya
WPCT No.20 of 2010 and for Mr. Subrata Talukdar
the State in COCT No.1 of 2010 Mr. Deboshree Saha
For the petitioner in : Mr. S. Samanta
COCT No.1 of 2010 and Mr. Soumen Das
for the State in WPCT Ms. Madhumita Ray
No.20 of 2010 Mr. M. A. Sultan
For the respondent No.5 : Mr. Arijit Chowdhury
In COCT No.1 of 2010 Mr. Alok Banerjee
Mr. R. Talukldar
Mr. Asoke Kumar Dhar
Mr. Soumya Majumder
For respondent nos. 6 & 7 : None appear
2
Heard On: 14.9.2010, 24.8.2010, 30.11.2010, 22.12.2010, 19.5.2011
Judgment On: 17th June, 2011.
Pratap Kumar Ray, J:
Central lis of these two writ applications arising out of common judgement
passed by the learned Tribunal below as discussed in details below, revolves
round the question about placement of a cadre officer promoted to the rank of
Principal Chief Conservator of Forest (hereinafter referred to as 'PCCF') whether
could be denied in a cadre post by unfair, unreasonable, arbitrary and
discriminatory action, exercising choice of posting, by the executive wing of
Government and whether placement of three junior officers consecutively in the
available cadre posts while keeping the writ petitioner Sri Sultan promoted in the
rank of PCCF by properly constituted screening committee and a seniormost IFS
officer could be done, by placing Sri Sultan initially in an ex-cadre post
temporarily created for one year and thereafter without any post, in breach of
cadre rules applicable to the IFS officers and the Government circulars and
guidelines etc. on that field as discussed in details below. The State of West
Bengal has filed a separate writ application and contested the writ application
filed by Sri Sultan assailing common judgement passed by learned Tribunal. Sri
Raha, respondent No.5, adopted the argument of Mr. Bikash Ranjan
Bhattacharya, learned advocate appearing for the State of West Bengal. Other
respondent nos.6 & 7, Sri Mondal & Sri Bist have not contested the matter
3
though writ application of Sri Sultan was served to them and affidavit of service
filed in this Court.
Assailing the order dated 25th November, 2009 passed by the learned
Central Administrative Tribunal, Calcutta Bench in Original Application No. 1235
of 2008 along with Misc. Application No. 344 of 2009, one application under
Article 227 of the Constitution of India, registered as C.O.C.T. No. 1 of 2010 was
filed by the applicant, Mirza Asghar Sultan and another application under Article
226 of the Constitution of India was filed by the State of West Bengal along with
one Additional Chief Secretary, Department of Forest and Smt. Shila Nath, Joint
Secretary, Department of Forest as writ petitioners. The aforesaid two
applications were heard together as those arose out of common judgment and
order passed by the learned Tribunal below. The petitioner in C.O.C.T. No. 1 of
2010 who was the original applicant before learned Tribunal below, has prayed
following relief :
b) "Rule do issue directing the opposite parties to show-cause as to why the
impugned order dated 25.11.2009 passed by the learned Central
Administrative Tribunal, Calcutta Bench, comprised of Mr. K. V.
Sachidanandan, Vice Chairman sitting with Mr. Champak Chatterjee,
Member (A) in Original Application No. 1235 of 2008 (Mirza Asghar Sultan
Vs. Union of India & Ors.) shall not be modified/varied and an order passed
setting aside/canceling/rescinding the order of promotion dated 30.03.2007
of Shri A.K. Raha to the rank of PCCF from the rank of Addl. PCCF and the
subsequent order of his posting under. GO. No. 2194 dated 30.03.2007 with
a further direction upon the respondent authorities to act forthwith in
4
accordance with paragraph 44 (ii) of the said order of the Ld. Tribunal and
thereafter to fill up the post of PCCF Apex Scale on regular basis and
pending disposal of the rule to pass an interim order staying the operation of
the impugned order of the learned Tribunal and a further interim order
restraining Shri A. K. Raha from functioning in the rank/grade of PCCF, West
Bengal."
c) Cost and costs incidental hereto;
d) And/or to pass such other or further order or orders as to your Lordships
may seem fit and proper.
In W.P.C.T. No. 20 of 2010 moved by the State of West Bengal along with
other Officers, following prayers made.
a) An order setting aside the judgment and Order of the Learned Tribunal dated
November 25, 2009 passed in O.A. No. 1235 of 2008 and Misc. Appeal No.
344 of 2009 annexed to this Writ Petition.
b) A Rule 'Nisi' be issued calling upon the Respondents to show cause as to
why a Writ of Mandamus will not be issued declaring the selection to the
post of PCCF apex scale in terms of the communication dated August 31,
2009 marked Annexure 'P-9' to this Writ Petition is proper and valid and on
the failure of the Respondents to show cause or sufficient cause and after
hearing the parties to make Rule absolute ;
c) An ad-interim order of stay of operation of the impugned Judgment and order
of the Learned Tribunal dated November 25, 2009 passed in O. A. No. 1235
of 2008 and M.A. No. 344 of 2009;
5
d) Any further order or orders relief or relieves as this Hon'ble Court may deem
fit and proper.
The impugned order passed by the learned Tribunal below dated 25th
November, 2009 read such :
Date of Order: 25.11.09
ORDER
K. V. Sachidanandan, VC :
In this OA the applicant, a senior member of Indian Forest Service of West Bengal Cadre, has essentially challenged the promotion of his junior Shri A. K. Rarha, respondent No. 5 to the cadre post of Principal Chief Conservator of Forest, West Bengal an d also for his consideration and appointment to the newly created Apex Scale of Principal Chief Conservator of Forest (Head of Forest of Force) in West Bengal.
2. The background facts giving rise to this OA as averred by the applicant are as under :
2.1. There are two cadre posts of Principal Chief Conservator of Forest in West Bengal i.e. Principal Chief Conservator of Forest and Principal Chief Conservator of Forest, Wild Life. Apart from these two cadre posts, there are also two ex cadre posts viz. Principal Chief Conservator of Forest, Research, Monitoring and Development and Managing Director, West Bengal Forest Development Corporation. These four post of equivalent grade and rank carry the revised pay-scale of 75500-80000/- known as HAG+. Recently, Govt. of India, on implementation of 6th CPC recommendations, created a post in the Apex Scale of Rs. 80000/- by upgrading one of the existing posts 6 of Principal Chief Conservator of Forest as head of Forest force in each State Cadre. The dispute raised in this OA emanates from the process of filling up of this newly created highest post in the State Forrest Service cadre. 2.2. Admittedly the applicant is the seniormost officer of Indian Forest Service of West Bengal cadre (1976 batch). In course of his long service career he served in different posts and zones in West Bengal and earned several promotions and in 2005 he was holding the cadre post of Addl. Principal Chief Conservator of Forest. As already pointed out, there are two cadre posts of Principal Chief Conservator of Forest (PCCF for short). Govt. of West Bengal by an order dt. 29.12.2005 created an ex cadre post of PCCF for one year in terms of provisions laid down in 2nd proviso to Rule 4 (2) of IFS (Cadre) Rules, 1966 for better management of increasing tree coverage to achieve the national target of 33.3% of Greenery Coverage. The post was designated as 'PCCF, Research and Monitoring". The applicant being the senior most officer in the feeder category at the relevant time was appointed on promotion to this post w.e.f. 1.1.06. The cadre post of PCCF, Wild Life also fell vacant w.e.f. 31.12.05 and this post was filled by promotion by his next junior Shri S.B. Mondal (respondent No. 6) also w.e.f. 1.1.06.
2.3. Such temporary ex cadre post can be retained for a further period of two years with the approval of Central Govt. In the normal course, the post that was created by order dt. 29.12.05 would lapse on 29.12.2006 after one year or on 29.12.2008 creating a new post in place of the old post with the revised designation of "PCCF", Research, Monitoring and Development" and the applicant was appointed in this newly created post w.e.f. 30.12.08 afresh. The different between these two ex cadre posts is noteworthy. The word "Development" has been added to the earlier designation, otherwise, both the posts are one and the same except modified designation. The applicant at the time of filling of this OA has been continuing in this ex cadre post.
2.4. While the applicant was continuing in the ex cadre post w.e.f. 1.1.06, another cadre post of PCCF fell vacant on retirement and in that post 7 respondent No. 5, Shri A. K. Raha was appointed w.e.f. 31.3.07. His position in the gradation list of IFS is at Sl. No. 4 while the applicant is at S. No. 1. As stated earlier, respondent No. 6, Shri Mondal, the next junior to the applicant (Sl. No. 2), was already appointed in the cadre post of PCCF, Wile Life w.e.f. 1.1.06 i.e. along with the applicant, and was subsequently shifted to the other ex cadre post of MD, WBFDC w.e.f. 31.1.07 and in his place the next junior Shri S. S. Bisht (Sl. 3) was appointed in that cadre post vice Shri Mondal. The applicant contends that when he is the seniormost officer he ought to have been brought to the cadre post instead of giving regular promotions to his juniors one by one against cadre post and the State respondents with mala fide motive and for oblique reason and purpose kept him in ex cadre post indefinitely which according to the applicant, was in fact non-existing in the absence of approval of Central Govt. That apart, he was also not given minimum infrastructural facilities and supporting staff despite repeated requests, to properly monitor and manage his office in the ex cadre post. It is also his complain that no target was fixed to achieve and thus virtually making it an inferior post to PCCF for which his ACR may be affected. According to the applicant, all these were done to favor respondent No. 5 and to sideline him (applicant) from the mainstream of Administration. 2.5. At this juncture, the Central Govt. based on recommendation of 6th CRC upgraded one of the existing posts of PCCF to the Apex Scale of Rs. 800000/- as the Head of Forest Force in each State cadre vide notification dt. 27.9.08, and the state respondents brought the respondents No. 5 into zone of consideration for filling up this upgraded post by calling for his ACR vide impugned letter dt. 10.11.08 issued by the Joint Secretary (annexure - A5) and thus extending the zone of consideration which they cannot do as the post is to be filled on the basis of well known principle of 1 : 3 i.e. for one vacancy, only 3 eligible officers in the feeder grade are to considered for this Apex Scale. His apprehension is that since respondent No. 5 was already favoured by the State respondents, he will eventually be selected in that post and in that event he (applicant) will have to work under his junior. He made 8 several representations and finding no efficacious remedy, has been obliged to file this OA before this Tribunal challenging the action of the State respondents to bring respondent No. 5 within zone of consideration for appointment to the apex scale.
3. During the pendency of the OA an amendment petition was moved to amend the pleadings and relief challenging inter alia the promotion and posting of the respondent No. 5 to the cadre post of PCCF by order dt. 30.3. 2007 also for a direction on the State respondent for posting of the applicant to the said cadre post of PCCF from that date.
4. This Tribunal, however, refused to allow the amendment petition on the ground that this change the nature and character of the OA. The Tribunal also refused the prayer for interim order and against these interlocutory orders of the Tribunal., the applicant went before the Hon'ble High Court by filing writ petitions viz. COCT No. 18 of 2008 (for interim order) and COCT No. 1 of 2009 (for amendment). Both these writ petitions were disposed of by the Hon'ble Court. So far as interim order is concerned, it was directed as follows vide order dt. 29.12.08.
"The selection process undertaken by the State including Mr. Rha may be proceeded with. It is an admitted position that Mr. Gupta's client (applicant) is eligible for being considered for the scale. We are told that the method of selection is exclusively based on merits. Therefore, the State respondents will proceed in accordance with law. While processing if Mr. Gupta's client is selected, then obviously parties will be entitled to take steps in accordance with law and in that case order passed herein will not be applicable. In the event, Mr. Choudhuri's client (respondent 5) is selected, then such decision of selection will abide by the result of this application and without prejudice to the 9 rights and contentions of the parties. It is also made clear such selection will not create any equity.
In the event Mr. Raha is selected, then such decision shall be communicated to the ld. Advocate on record to the applicant and on expiry of seven days from the date of communication, the Govt. will be free to take action in accordance with law.
5. It is to be noted here that in the selection respondent No. 5 was finally selected for the Apex Scale and the applicant was intimated about this selection by letter dt. 31.8.09 in terms of the above direction of the Hon'ble High Court vide annexure-MA to the MA No. 344 of 09 filed by the applicant in which he has prayed for further interim order restraining the respondents from giving effect to the said promotion order of respondent 5 to the apex scale. The said MA was also heard along with the OA.
6. So far as amendment is concerned, it was allowed by the Hon'ble High Court by a detailed order dt. 2.4.09 to which we shall refer to a little/later.
7. Accordingly, an amended application incorporating the amended relief and pleadings has been filed. The amended reliefs are as below:
a) Set aside, cancel and rescind the impugned order dt. 10.11.2008 for selection of shri Atanu Kumar Raha to the zone of consideration for selection to the post of Principal Chief Conservator of Forest in Apex Scale vide letter No. 6343-FOR dated 10.11.2008 issued by the Joint Secretary to the Govt. of West Bengal.
e) A direction to issue setting aside/canceling/rescinding the order of promotion dated 30.3.2007 of Shri A. K. Raha to the rank of PCCF from the rank of Addl. PCCF and the subsequent order of his posting under GO No. 2194 dated 30.3.2007 and a further order do issue posting the applicant to the post of PCCF, West Bengal with effect from 31.3.2007.10
f) Direction be given to the respondents to produce the entire records pertaining to the impugned letter bearing No. 6343-FOR dated 10.11.2008 and also with regard to the continuance of the post on ex cadre, Principal Chief Conservator of Forest, Research, Monitoring and Development.
8. The State respondent have filed written reply contesting the application, so also the private respondent No. 5. The State respondents have denied all the allegations. It is, however, admitted that the applicant is the seniormost officer of the IFS cadre. It is clarified that in the interest Administration, ex cadre post of PCCF , Res. & Mon. was created under the rules which as to lapse on 29.12.08 and therefore by order dt. 30.12.08 another ex cadre post of PCCF , Res. Mon and De. has been sanctioned for a period of one year which will be extended by another two years in due course in terms of IFS Cadre Rules 1966. It is stated that all the posts of PCCF, whether cadre or ex cadre have separate set of targets, earmarked duties and responsibilities, hierarchial set up and all are equal status and pay and therefore the applicant cannot make any grievance. So far as filling up the apex scale post of PCCF is concerned, it is stated that as per rules and guidelines, all PCCF are to be considered and that there is no formula of 1 :3 as pleaded by the applicant. It is stated that the applicant has no locus to challenge the appointment of respondent No. 5 to the post of PCCF as it is hit by limitation in terms of Sec. 21 of the AT Act.
9. The respondent No.5 has also taken similar ground sin his reply with special emphasis to the point of limitation. It is stated that the claim of the applicant that zone of consideration is 1:3 is not correct and that the examples given by the applicant in his OA are for different posts and services which are not applicable in this case. It is also stated that there is no rule that seniormost officer has to be posted in the cadre post only. In the past also seniormost officers were appointed in ex cadre post while juniors have been posted against cadre posts and in other States also this practice is followed. 11
10. We have heard the ld. Counsel for the contesting parties at length. After conclusion of the hearing all parties have also submitted written notes of arguments separately and furnished copies of several judgements relied on. We have gone through the same. The State respondents have also produced the departmental records of selection which we have perused.
11. We may first deal with the question of limitation raised by the respondents with regard to the challenge of the applicant to the appointment and posting of respondent 5 to the cadre post of PCCF w.e.f 31.3.07 on regular basis by order dt. 30.3.07 when the regular incumbent to that post superannuated. The representation of the applicant against this promotion and promotion was rejected by letter dt. 19.4.07 whereas the present OA has been filed more than one year thereafter and therefore it is hit by Sec. 21 of the AT Act. This point was also raised before the Hon'ble High Court in connection with the amendment petition and decisions of Apex Court have also been cited, which are also cited before us and the Hon'ble High Court prima facie came to the conclusion that the point of limitation could not be raised. It was inter alia observed that the representation of the applicant was rejected by letter dt. 19.4.07 and-
"if we strictly follow the argument so advanced by Mr. Chowdhury being promoted by Sections 20 and 21 of the Act of 1985 we would have to hold that the petitioner should have approached the Tribunal by April 19, 2008. However, considering the peculiar facts, such arguments, in our view is inapplicable herein. It is true that his representation was rejected. However, he did not suffer any prejudice at that time. Although he had a grievance he did not have any actionable right to approach a legal forum in absence of actual prejudice being caused to him. Such a situation arose only in September 2008 when the Central government introduced the new pay scale."
12. Although Hon'ble High Court kept open the point of limitation to be agitated before this Tribunal, we are of the considered opinion that for the reasons stated by the Hon'ble High Court, the plea of limitation cannot be taken by 12 the respondents because apart from selection to Apex Scale, the applicant has also raised a grievance in regard to his continuance in the ex cadre post itself regularly in the absence of Central govt.'s approval and therefore, the situation is that his promotion to PCCF cadre itself became irregular and a nullity whereas his juniors' promotion to that grade against cadre post is regular and as such in our view the cause of action is continuing and bar of limitation cannot apply. The decision in Ramesh Ch. Sharma's case AIR 1999 SC 3837 has no application because there it was held without a separate application for condonation of delay, the Tribunal cannot entertain a plea of condonation. Here, we have held that the cause of action is continuing and therefore condonation of delay is not relevant.
13. The first question that falls for our consideration is whether the ex cadre post created by the State Govt. by order dt. 29.12.2005 and continued till 28.12.08 and regular promotion and continuance of the applicant to this post was valid or not.
14. For better elucidation we may quote the order creating the ex cadre post :-
"Sub: Creation of an ex-cadre post f Principal Chief Conservator of Forests-
The undersigned is directed by order of the Governor to say that the Governor is pleased to accord sanction to the creation of an Ex-cadre post in the rank of Principal Chief Conservator of Forests temporarily for a period of one year in terms of provisions as laid down in 2nd Proviso to Rule 4(2) of IFS Cadre Rules 1966 for better management in increasing 'Tree Coverage' to reach the national target of 33.3% of 'Greenary Coverage'.
The Governor is further pleased to decide that the incumbent to the above mentioned post will be designated as Principal Chief Conservator of Forests, Research and Monitoring, West Bengal, in the grade of Principal Chief Conservator of Forests, carrying pay scale of Rs.24050-26000/- and the incumbent holding the said post will look after the works of Research, Minitoring and Soil Conservation.
The charges involved will be proceed against appropriate head of accounts in the budget of Forest Deptt. For the respective years, sub-ordinate to the major head "2406-Forests &Wildlife."13
Respective Drawing and Disbursing officers will continue to act as such for the purpose.
This issues with the concurrence of the Finance Deptt. Vide UO No.2966-Group-A service dt. 28.7.05" (emphasis supplied)
15. Thus, this ex cadre post was created by the State Govt. temporarily for one year in terms of 2nd proviso to rule 4 (2) of IFS (Cadre) Rules, 1966. It will be profitable to quote the said rule as under :
"4. Strength of Cadres. - 4 (1) The strength and composition of each cadres constituted under rule 3 shall be as determined by regulations made by the Central Government in consultation with the State Government in this behalf.
4 (2) The Central Government shall, at the interval of every five years, re- examine the strength and composition of each such cadre in consultation with the State Government and may make such alterations therein as it deems fit;
Provided that nothing in this sub-rule shall be deemed to effect the power of the Central Government to alter the strength and composition of any cadre at any other time ;
Provided further that the State Government concerned may add for a period not exceeding one year, and with the approval of the Central Government for a further period not exceeding two years to a State or Joint Cadre one or more posts carrying duties and responsibilities of alike nature to cadre posts." (emphasis supplied). It is also necessary to refer to Rule 9 of IFS (Pay) Rules {Re-numbered as Rule 11 in the IFS Amended Pay Rules 2007} Rule 11 in the IFS Amended Pay Rules 2007} "9 (1) No member of the Service shall be appointed to a post other than a post specified in Schedule III, unless the State Government in respect posts under its control, as the case may be, make a declaration that 14 the said post is equivalent in status and responsibility to a post specified in the said Schedule.
(2) The pay of a member of the Service on appointment to a post other than a post specified in Schedule III shall be the same as he would have been entitled to, had he been appointed in the post to which the said post is declared equivalent.
(4) Notwithstanding anything contained in this ruule, the State Government concerned in respect posts under its control, or the Central Government in respect posts under its control, may, for sufficient reasons to be recorded in writing where equation is not possible, appoint any member of the Service to any such post without making a declaration that the said post is equivalent in status and responsibility to a post specified in Schedule III.
16. The aforesaid rules as also the power of State Govt. to create such ex cadre post under rule 4 of IAS (Cadre) Rules read with rule 9 of IAS (Pay) Rules which are pari materia with IFS (Cadre) Rules and IFS (Pay) Rules, came to be critically analysed before the Constitution Bench of Hon'ble Supreme Court in the celebrated decision in the case of E. P. Royeppa -vs.- State of Tamilnadu & Anr. AIR 1974 SC 555. In that case the appellant, a senior IAS officer of Tamil Nadu cadre, who was officiating as Chief Secretary, was transferred to ex cadre posts of Deputy Chairman, Planning Commission and Officer on Special Duty, which was challenged as invalid and in that context the above rules were examined. It will be useful to quote the relevant observations below :-
"18. The aforementioned second proviso to Rule 4 (2) of the Cadre Rules does not confer any power on the State Government, to alter the strength and composition of the cadre. If such power were conferred on the State, examination of the strength and composition at the interval of every three years by the Central Government in consultation with the State Government would be nullified. The 15 meaning of the second proviso to rule 4 (2) is that the State Government may add for a period mentioned there to the cadre one or more posts carrying duties and responsibilities of the like nature of a cadre post. The posts so added do not become cadre posts. These temporary posts do not increase strength of the Cadre. The addition of the post of Deputy Chairman, Planning Commission or Officer on Special Duty to the Indian Administrative Service Cadre of Tamil Nadu State is not permissible because that would result in altering the strength and composition of the Cadre. The State has no such power within the second proviso to Rule 4 (2) of the Cadre Rules.
Explaining Rule 9 of the Pay Rules, it has been observed that-
"82. ........................This rule is intended to provide a safeguard for the protection of a member of the Indian Administrative Service. Sub-r. (1) enacts that no member of the Indian Administrative Service shall be appointed to a post other than a post specified in Schedule -III, or in other words, to a non-cadre post unless the Government makes a declaration that such non-cadre post is equivalent in status and responsibility to a post specified in the said Schedule, i.e., to a cadre post. If the State Government wants to appoint a member of the Indian Administrative Service to a non-cadre post created by it, cannot do so unless it makes a declaration setting out which is the cadre post to which such non-cadre post is equivalent in status and responsibility. The making of such a declaration is a sine qua non of the exercise of power under sub-r. (1). It is not an idle formality which can be dispensed with at the sweet will of the Government. It has a purpose behind it and that is to ensure that a member of the Indian Administrative Service is not pushed off to a non-cadre post which is inferior in status and responsibility to that occupied by him. So far as cadre posts are concerned, their hierarchy would be known, but a non-cadre post created by the Government would be stranger in the hierarchy, and that is why sub-r. (1) requires that before appointing a member of the Indian Administrative Service to such non-cadre post, the Government must declare which is the cadre to which such non-cadre post is equivalent in status and responsibility so that the m ember of the Indian Administrative Service who is 16 appointed to such on-cadre post, would know what is the status and responsibility of his post in terms of cadre posts and whether he is placed in a superior or equal post or he is brought down to an interior post. If it is the latter, he would be entitled to protect his rights by pleading violation of Art. 311 or Arts. 14 and 16 of the Constitution, whichever may be applicable. That would provide him effective insulation against unjust or unequal or unlawful treatment at the hands of the Government. The object of this provision clearly is to ensure that the public services are, in the discharge of their duties, not exposed to the demoralizing and depraving effects of personal or political nepotism or victimization or the vagaries of the political machine. The determination of equivalence is, therefore, made a condition precedent before a member of the Indian Administrative Service can be appointed to a non-cadre pst under sub-r. (1). It is mandatory requirement which must be obeyed. The Government must apply its mind to the nature and responsibilities of the functions and duties attached to the non-cadre post and determine the equivalence......................"
17. In the case in our hand, in the Govt. Order (GO) creating the ex cadre post thought it is mentioned that it is in the rank and grade of PCCF , a cadre post already existing, there is no declaration under rule 9 that it is equivalent post which is a must. The observation of the Apex Court in the afore-cited case is very clear and is relevant for our purpose. We quote the said observations as under :-
"83. ................Here the State Government seems to have proceeded on the hypothesis that it can create a non-cadre post in the rank or grade of any cadre post it likes, irrespective of the nature and responsibilities of the functions and duties attached to such non-cadre post and that would be hypothesis compliance with the requirement of Rule 9, sub-r. (1). But that hypothesis is plainly incorrect. The State Government cannot artificially the nature and responsibilities of the functions and duties attached to it, shall be in the rank or grade of any cadre post it likes. The State Government has to apply its mind and make an objective assessment of the nature and 17 responsibilities of the functions and duties and determine which is the cadre post to which such non-cadre post can be regarded as equivalent in status ad responsibilities and then only it can make a declaration of equivalence. This exercise does not seem to have been gone through by the State Government............."
18. We are not saying that the ex post of PCCF, Research & Development, is less important post than PCCF as we are not addressing that issue. It is for the State authorities to decide. We are only saying that there was no declaration under rule 9 that the ex cadre post is of the same status and responsibilities as those of PCCF. The applicant has contended that he was not given appropriate infrastructural facilities by deputing staff sand fund and target for performing his job despite repeated requests by him and by the then PCCF (copies of correspondences have been produced) and thus he was pushed to the corner.
19. Of course, there is exception i.e. sub-rule (4) of Rule 9 by which the State Govt. may not declare about the equivalence but reasons have to be recorded therefor which does not appear to have been done.
20. Under the 2nd proviso, the power to create ex cadre post vested on the State Govt. is only for one year and for further retention of the post upto maximum two years, approval of Central Govt. is essential. It is also unfortunate that the Union of India respondent has not entered appearance. It is, however, stated that the ex cadre post is shown in the civil list published by the Ministry, which proves that Central Govt.'s approval was there. We are not inclined to accept this contention. Mere inclusion of the ex cadre post in the Civil List does not prove existence of such approval. It has to be in writing in clear terms. Civil list is nothing but gradation list of officers of different 18 cadres of All India Service and against the names of each officer, their designation is noted. That does not mean that the posts occupied by them are validly created or existing. We note from the office noting produced before us by the applicant obtained through RTI Act, as also from the subsequent GO dt. 26/11/2008 re-creating the same post with slight modification in the nomenclature, that the old post was to lapse on 29.12.2008. The GO dt. 26.12.08 read thus:-
The Governor is pleased to accord sanction to the creation of an Ex- cadre post in the rank of Principal Chief Conservator of Forests, to be designated as Principal Chief Conservator of Forest, Research, Monitoring & Development in the scale of pay of Rs.75,500-80000/- for a period of one year which may be extended for another tow years with the approval of Govt. of India, in terms of the provisions as laid down in 2nd proviso to Rule 4(2) of IFS Cadre Rules, 1966 with effect from 30.12.08. This Ex Cadre post is created I place of the earlier created Ex-Cadre post of Principal Chief Conservator of Forests, Research & Monitoring which will lapse after 29.12.08 for improvement of green cover in the State through specialised forest development activities like intensive silvicultural research, production of quality planting materials, monitoring & evaluation of all forestry development activities, in-service training of subordinate forest staff as will a soil conservation works in ecologically fragile ones.
The Governor is further pleased to appoint Sri M. A. Sultan, IFS, Principal Chief Conservator of Forests, Research, Monitoring & Development in this newly created post with effect from 30.12.2008 and until further orders.
21. The next of the order makes it quite clear that it is recreation of the old post which lapsed on 28.12.08. It is significant to note that the power of State Govt. to create such ex cadre post is for one year only which can be extended by two more years with the approval of Central Govt. That means, such an ex cadre post can be retained for 3 years at the most and to by pass such ceiling limit, the State Govt. in this case has re-created the old post once again for one year with the express intention to extend it for two years more and appointed the applicant against this post over again. If for continuance of the old post after expiry of one year of its date of creation, approval of 19 Central Govt. was not taken, then that post lapsed after one year i.e. on 28.12.06 and therefore continuance of the applicant from 29.12.06 to 29.12.08 was irregular. We are not entering into the question whether the State Govt. can recreate an old and lapsed ex cadre post without consultation with Central Govt. in the manner it was done. But the way in which the State respondents acted in appointing the applicant on promotion against an ex cadre post is disturbing. It is certainly not a healthy practice and gives rise to reasonable doubt that it is nothing but a cloak for displacing the applicant from a cadre post which he is legitimately entitled to. In the case of Ramchandra Keshav Adke vs. Govind Joti Chavare, AIR 1975 SC 915 it has been held by the apex Court that "where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden." It is high time that the Central Govt. should consider issuing appropriate instructions to avoid such practice as this may be used as a tool to shift senior and upright officers to the fence.
22. The next and most vital point is whether the applicant could be regularly promoted to the grade of PCCF against an ex cadre post. Before proceeding further, we reproduce here, for advantage, an extract of civil list of 2008 relied on by the parties.
State S. Officer's Year of Present Present post Tel
No. Name Date Allotmen scale of Date of No.(offic
Officer of Birth t Date of pay Date Appointment e)
Code No. Rectt. Source Appoint of Aptt. To to Present (Reside
Educational ment to Scale post/e-mail nce)
Qualification IFS Remarks Mobile
0001 Mirza Asgar 1976 24005- PCCF,
WB/031 Sultan 01/03/1 26000 Research &
05/10/1952 976 01/01/20 Monitoring,
RR MSc 06 HQrs. Kolkata
01/01/2006
0002 Sitangru B 1976 24005- MD, WBFDC
20
WB/032 Mondal 0103/19 26000 Ltd. HQ,
22/10/1953 76 01/01/20 Kolkata
RR B SC 06 31/01/2007
against
SDR
0003 Sampat 1977 24005- PCCF, WL &
WB/034 Singh Bist 01/03/1 26000 Bio diversity
RR MSc 977 01/02/20 Hqr. Kolkata
18/03/1953 07 31/01/2007
RR
MSc
0004 Atanu 1977 24005- PCCF, West
WB/034 Kumar Raha 01/03/1 26000 Bengal, Hqrs.
08/10/1952 977 01/01/20 31/03/07
RR 06
MSc
23. On a careful perusal of the above list, it will be clear that both the applicant and private respondent 6 (Shri Mondal) were appointed on promotion on the same day i.e. 1.1.06- while the applicant against ex cadre post, Shri Mondal against a cadre post. Subsequently, Shri Mondal was appointed as MD, WBFDC (ex cadre and SDR) w.e.f.31.1.07, and the next junior Shri Bisht was appointed in his place from that date i.e. against cadre post. Again when the post of PCCF, West Bengal fell vacant on retirement, Shri Raha was appointed w.e.f. 1.4.07.
24. There is no dispute that at the relevant time, the applicant was the seniormost in the feeder grade of Addl. PCCF in 2005. His next promotion was to the rank of PCCF which means he was to be promoted on regular basis against a cadre post only by a regular DPC/Selection Committee. The promotion order dt. 29.12.2005 is as follows :-
"The Governor is pleased to appoint Shri M.A. Sultan, IFS, now posted as Addl. PCCF, Research, working plan and Monitoring, on promotion to the grade of PCCF w.e.f. 01.01.2006 and post him as PCCF, Research and Monitoring until further orders.21
His next junior Shri Mondal (respondent 6) was also an Addl. PCCF and both of them were promoted to the higher rank and grade of PCCF on the same day i.e. 1..1.06 by order dt. 29.12.05. Therefore, it is presumed that regular DPC was held for such promotion as per rules. (The record relating to the selection was not produced) The State respondents have produced with their written argument the promotional guidelines issued by MoEF dt. 18.11.2002. Para 1 (VII) relates to promotion to the post of Principal Chief Conservator of Forests which stipulates as follows :-
"VII. Promotion to the post of Principal Chief Conservator of Forests:-
The zone of consideration for promotion in this grade would consist of all the members of the service who have completed 30 years of service. Appointment in this grade would be made from amongst officers thus cleared, at any time during the relevant year and subject to the provisions of rule 9 (7) of IFS (pay) Rules, 1968. The Screening Committee for this purpose shall consist of the chief Secretary, Principal Chief Secretary of Forests and Principal Secretary looking after the work of Forests (who should be an officer in the pay scale of Rs. 26000/- failing which an Additional Chief Secretary level officer, and an officer not less than the rank of Special Secretary in the Government of India/Additional Director General of Forests, Ministry of Environment & Forests, Government of India when the former is not available.
25. Any regular promotion is to be made against a clear vacancy and not against short term vacancy. In this regard the guidelines also lay down as to how vacancies are to be determined which is as follows:-
"3. Determination of Vacancies -
It is essential that the number of vacancies in respect of which a panel is to be taken into account should be the clear vacancies arising in a grade due to death, retirement, resignation, promotions and deputation. As regards vacancies arising due to deputation, only those cases of deputation for 22 period exceeding one year should be taken into account, taking due note of the number of deputation likely to return to the cadre. Purely short term vacancies arising as a result of the officers proceeding on leave, training or on deputation for a short term period or as a result of overutilisation of the sanctioned State Deputation Reserve not approved by the central Government should not be taken into account for the purpose of preparation of panel............"
26. Undisputedly, two vacancies in the grade of PCCF were there as on 31.12.05- one in cadre post and another in newly created ex cadre post. The cadre post was created only for one year and therefore it cannot be termed as clear vacancy. Thus, only one 'clear vacancy' was available i.e. the cadre post of PCCF, Wild Life. But the applicant was promoted against the ex cadre post while his junior i.e. Shri Mondal was promoted against the cadre post w.e.f 1.1.06. No rule has been shown to us by which regular promotion can be given to a cadre officer to a non-cadre or ex cadre post created temporarily for one year. After regular promotion against a cadre post, a cadre officer can be trasnferred to an ex cadre post as has been done in case of Shri Mondal, who was trasnferred to ex cadre post of MD, WBFDC w.e.f 1.2.07 and against that vacancy Shri Bisht, next junior was promoted and thereafter when another vacancy occurred from 31.3.07 Shri Raha (respondent 5) was promoted. Thus, three of the juniors of applicants were promoted only against cadre post while the applicant was promoted against non-cadre post and he is still continuing as such. This is highly irregular because State Govt. is not competent to increase the total cadre strength which power lies only with the Central govt. it is not the case of either party that the applicant was superseded for inefficiency or deficiency in the matter of promotion to the grade of PCCF. He being the seniormost, his right to hold the cadre post is better than his juniors because regular cadre posts are superior to the non-cadre posts as the cadre post always has an edge over the non-cadre post as held by the coordinate Bench of the Tribunal i.e. Mumbai Bench in OA 222 of 2000 decided on 17.11.2000 and this finding was also approved by the Hon'ble Bombay High Court in WP No.6906/2000 23 dt. 20.12.2000 in Ronald Hyacinth Medonca vs. State. The Hon'ble Bombay High Court also observed that a senior could not be made to occupy a non- cadre post when his junior is occupying a cadre post which was the fact in the above case concerning appointment to the post of IGP/DGP in IPS cadre.
27. The applicant has produced before us a copy of DOPT circular dated 7th May 2001 regarding promotion guidelines to various grades of All India Services. It will be useful to quote the said guidelines hereinbelow :-
I am directed to say that Central Govt. had issued instructions vide No. 20011/4/92-AIS (II) dt. 28.3.2000 regarding promotion to various grades of Indian Administrative Service. The scope was further extended to other All India Service namely Indian Police Service and Indian Forest Service. Ministry of Home Affairs and Ministry of Environment and forests issued detailed promotion guidelines for the respective All India Services working under them. Certain states have raised queries about the promotion to be made for various temporary posts or the posts which are temporarily added to the cadre of IAS, IPS and IFS. This also includes the posts which are created although permanently but for the time being are not included in the respective cadre notification done under All India Service Cadre rules. This aspect was already dealt with and detailed guidelines were issued vide OM No. MHA O.M. No.1/67/-AIS(III) dated 11.1.1967.
The matter has been dealt again and the old position is reiterated. Promotion to various grades may be made only when a permanent vacancy in the cadre notification issued by Central Government under various All India Service Cadre Rules exists. No promotion can be done against the posts which are created but are yet to be included in the cadre notification of respective service through Central Government notification. The State Government in such a situation will give the officiating change to the senior most officer of lower grade to the grade in which the post is created and no DPC will be summoned for that. The State Government are only empowered to do review DPC and that too when the circumstances so warrant or Govt. of India gives directions to that effect. Any promotions which are made outside the respective cadre notification of various services are ipso facto null and void. Such promotion basically destroy the cadre structure and defeat the very purpose of All India Service Cadre Rules. For officiating charge the seniority in the next below grade will be the determining factor and nothing else. The concerned 24 administrative department of the State will give officiating charge to the senior most member of the service of lower grade without resorting to any DPC/Screening etc. Yours faithfully, Sd/-
(A. K. Sarkar) Director Copies forwarded to all Ministries and departments of Govt. of India - separate copies with ten spare copies each to :
1. MHA, Police Division in respect of IPS officers2. MHA, Uts.
2. Ministry of Environment and Forests, Forest Division in respect of IFS officers.
Yours faithfully, Sd/-
(A. K. Sarkar) Director
28. The State respondents have stated that these guidelines are not applicable of IFS cadre and these are for IAS and IPS officers etc. It is asserted that 2002 guidelines issued by the MoEF as quoted above, will govern the field. We are unable to accept this contention because this OM was also endorsed to Ministry of Environment and Forests, for application to IFS Officers.
29. The guidelines issued by the DOPT, are quite clear and unambiguous that promotion to various grades may be made only when a permanent vacancy in the cadre notification issued by Central Govt. under service rules exists and no promotion an be done against the posts which are created but are yet to be included in the cadre notification of respective services through Central Govt. notification. that any promotions which are made outside the respective cadre notifications of various services are ipso facto null and void. Such promotions basically destroy the ccadre structu re and defeat the very purpose of All India Service Cadre Rules. For officiating charge the seniority in the next below grade will be the determining factor and nothing else.
30. Thus, there is no scope to give regular promotion against an ex cadre post which has not yet been included in the relevant schedule by cadre notification because such promotion basically destroy in the cadre structure and defeat the very purpose of Cadre Rules. In the instant case, it is not in dispute that the ex cadre post culd not be filled on regular basis but on officiating basis only. But what the state respondents has done is just the opposite the guidelines. They have given regular promotion to the applicant, who is the seniormost officer, against this ex cadre post and his juniors to the cadre posts. This is highly irregular and needs to be rectified as 25 otherwise the promotion of the applicant to the cadre of PCCF itself would bec ome invalid and nullity if any irregularity was committed, the applicant should not suffer nor the private respondents, and it is for the State Respondents to set right the irregularity in consultation with Central Govt. i.e. the cadre controlling authority. at the same time, the Central Govt. should also issue clear guidelines that regular promotion cannot be given against an ex cadre post which is temporary in nature and character.
31. Although mala fide is alleged by the applicant but this is in general term and not against any particular authority or officer. Mala fide is very easy to allege but very difficult to prove. We need not, therefore, consider this allegation for want of necessary party and specific pleadings with supporting evidence Ld. Counsel for the applicant has also alleged malice in fact. Malice in fact means express malice; it implies that where malice is not established by legal presumption or proof of certain facts, but is to be found from the evidence in the case. The concept of mala fide or malice in fact or in law has been critically explained by the Apex Court in detail in a recent decision in the case of WBSEB v. Dilip Kumar Ray (2009) 1 SCC (L&S) 860. Based on the test enumerated therein, we are not inclined to accept this allegation of the applicant. However, the facts revealed are of course disturbing.
32. Now, we come to the second part of the grievance of the applicant in the matter of filling up the upgraded post of Apex Scale of Rs.80,000/- designated as PCCF (Head of Forest Force).
33. The applicant contends that he being the seniormost PCCF should be appointed to this scale but the State respondents have illegally considered the respondent No.5 who is much junior. His contention is that as in case of other posts and services, the zone of consideration should be limited to 1:3 principle, the same method should be followed in this case also and therefore, respondent No.5 who is at sl. No.4 cannot be brought into the zone of consideration. However, State respondents as also respondent No.5 have disputed the contention. No rule or guideline framed by the Central Govt. in this regard has been produced by the applicant in support of his contention. But we note that the Hon'ble Apex Court in the matter of filling up the post of DG of police i.e. topmost post of the police force in the State, issued direction in the case of Prakash Singh vs. UOI, 2006(8) SCC 11 (PIL case) that such 26 selection should be made from amongst three seniormost officers who have been empanelled by UPSC on the basis of their length of service, very good record and range of experience for heading the police force and having atleast two years of service left. It was also observed that pending formulation of policy/law by the Govt. the above direction would constitute the legal framework in this regard. This view was followed in a recent decision by Mumbai Bench of the Tribunal in 389/08 decided on 8.10.08 (Suprakash Chakraborty vs. Govt. of Maharashtra etc.) in the matter of selection of DGP. That was a case involving IPS cadre whereas the case in hand relates to IFS cadre. But in both cases, the selection is to the top post i.e. IGP/DGP(top post of police force) or PCCF (top post of forest force) and the rules and regulation of both services are similar and therefore, similar procedure should be followed for selection and appointment to the top post for maintaining clarity and transparency. However, we leave the matter to the Central Govt. to issue appropriate guidelines regarding zone of consideration and selection procedure based on this decision of Apex Court.
34. By Govt. of India notification dt. 27.9.08 various cadre posts of IFS have been provided with revised pay scale and a new Apex Scale with fixed pay of Rs.80000/- has been created by upgradation of one existing post of Principal Chief Conservator of Forest as head of Forest Force in the each State cadre w.e.f date of notification vide clause 1(D) of Rule 3 of Indian Forest Service (Pay) Second Amendment Rules, 2008. Note 2 below this rule states thus:-
Note 2: The post of Principal Chief Conservator of Forest in the apex scale shall be filled by selection from amongst the officers holding the post of Principal Chief Conservator of Forest in the State cadre in the HAG+ scale of Rs.75500 (annual increment @3%) -80000/-."27
35. Central Govt. in the Ministry of Environment and Forests by order dt. 16th April 2009 have also issued guidelines for selection to the post of apex scale which are quoted below for better appreciation:-
GUIDELINES FOR SELECTION TO THE POST OF PRINCIPAL CHIEF CONSERVATOR OF FORESTS (HEAD OF FOREST FORCE) IN APEX SCALE OF INDIAN FOREST SERVICE.
Eligibility of Officers Following officer would be in the zone of consideration for the post of Principal Chief Conservator of Forests (Apex Scale):-
i) Officers holding the post of PCCF in the State cadre in HAG+ Scale of Rs.75500-80000/-
Constitution of Selection Committee The Special Selection Committee shall comprise of the following:
1) Chief Secretary of the State concerned as Chairperson
2) Principal Secretary (Forest ) of the State
3) PCCF (Apex Scale) of the State cadre concerned.
4) One PCCF in the Apex Scale nominated by MOEF
Parameters of selection
Outstanding merit, competence, absolute integrity and having specific suitability for the post.
36. From the above it is seen that zone of consideration has been laid down as all officers holding the post of PCCF in the State cadre. Admittedly, there are only two cadre posts of PCCF and the other two posts are ex-cadre. As stated earlier in R. H. Mendonca's case (supra), it was held that ex cadre post is not the same as cadre post it may be equivalent; but a cadre post is always superior to non-cadre post in the instant case, we have also noted above that State Govt. has not also issued any declaration under rule 9 of Pay Rules that the post PCCF, Res. Mon & Dev. Held by the applicant is equivalent to cadre post of PCCF. It is also relevant to observe that the two cadre posts of PCCF are held by juniors whereas the seniors (the applicant and Shri Mondal) are holding ex cadre posts. The regular promotion of the 28 seniormost officer i.e. the applicant against a non-cadre post is also irregular and against DOPT circular of 7.5.01 as observed by us above. In our considered opinion, the expression "officers holding the post of PCCF in the State cadre" means only officers holding the cadre post of PCCF and not the officers holding the ex-cadre posts. Therefore, the guidelines dt. 16.4.09 need to be clarified further by the Central Govt. regarding the extent of zone of consideration, to include at least three seniormost officers and unless this is done, there will be only two officers in the field because there are only two cadre posts of PCCF in the State cadre and the eventuality of seniormost officers being left out may not be ruled out. Before any selection to apex scale is made this issue is required to be clarified and settled.
37. We also notice that out of four members of the Selection Committee, as constituted by Govt. of India, one should be PCCF Apex Scale of the State Concerned and another PCCF Apex Scale nominated by the Central Govt. obviously from another State. It is to be borne in the mind that this is the first selection after introduction of the apex scale of PCCF and therefore these two members cannot be available and hence the constitution of the Selection Committee itself is without application of mind and not workable at least for the time being, until first appointment to PCCF Apex Scale in different States is made. That apart, since this is selection to apex scale, it should be ensured that all the members of the selection committee must be at least in the said grade i.e. holder of apex scale of Rs.80000/-.
38. From a perusal of the departmental records it appears that the Special Selection Committee meeting was held on 20.8.09. It was noted in the minutes as follows:-
"The Special Selection Committee consists of the following officers:-
1) Chief Secretary of the State concerned as Chairperson
2) Principal Secretary (Forest) of the State
3) PCCF (Apex Scale) of the State cadre concerned.29
4) One PCCF in the Apex Scale nominated by MOEF.
As in West Bengal there is no PCCF in the Apex Scale at present and the PCFF in the Apex Scale nominated by the Govt. of India did not appear, the Committee co-opted Addl. Chief Secretary, Home Deptt. Of this Government as a member of this meeting .
Therefore, the Special Selection Committee was consisted of three members i.e.
1) The Chief Secretary to the Govt. of West Bengal
2) Addl. Chief Secretary, Deptt. Of Forests, Govt. of West Bengal
3) Addl. Chief Secretary, Home Deptt., Govt. of West Bengal.
39. Obviously, this selection Committee is not the one as stipulated by the Ministry in the aforesaid communication. From the file we find that a letter was sent to the Govt. of India on 11.8.09 to nominate as Apex Scale holder PCCF. There is no reply from the Govt. of India either nominating one or intimating inability to send one. The minutes clearly state that the Selection committee itself constituted the committee. How DPC or Selection Committee is to be constituted is normally stipulated in the recruitment and promotion rules and in the absence of rules in this case. Govt. of India constituted the Committee. There is no clause that in the absence of any member, how the Committee can be reconstituted as is provided in other cases, for example in the case of the promotion to the grade of PCCF as per guidelines of 2002 extracted above. In our considered view, any change in the constitution of the Committee can be made only by the Govt. of India and not by some of the members of the Committee at their discretion. It is also not available from the departmental file whether such re-constitution of the selection committee was approved by the Govt. of West Bengal at the highest level or by the Central Govt.
40. In that view of the matter, the selection of the respondent No. 5 the apex scale of PCCF by this reconstituted Special Selection Committee not according to the guidelines of the Ministry is irregular and cannot be sustained and is liable to be set aside.
30
41. Before we conclude, we would like to make some observations on two other issues though not directly raised before us we think the same are relevant in the facts and circumstances of the case.
42. As per Rule 8 (2) of IFS Cadre Rules, a cadre officer shall not hold ex cadre post in excess of number specified in item 5 of the cadre schedule unless it is temporarily added with the approval of Central Govt. vide sub-rule (3). Earlier there were two cadre posts i.e. PCCF, Wild Life out of which the post of PCCF has been upgraded to the apex scale by State Govt. notification dt. 31.7.09. Therefore, there is now only one cadre post of PCCF, Wild Life against which there are two ex cadre posts - one MD, WBFD and the other PCCF, Res. Dev. & Mon. held by the applicant. Thus, the number of ex cadre posts in PCCF grade exceeds the scheduled cadre posts. This need to be reviewed by the appropriate authorities.
43. Before the Special Selection Committee, a broad sheet containing the grading of all the four candidates including applicant was placed from where we find that in respect of some candidates there was downgradation of grading from outstanding to 'good' but the same was not communicated. As per explanation deficiencies in the quality of work or performance. When there was downgradation this must be due to deficiency and needs to be communicated. In view of the latest decisions of the Apex Court, in the case of Dev Dutt, 2008 (7) SCALE 403 (decided on 12.5.08), UOI -vs- S. K. Goel, 2009 (1) SSC (L&S) 873 (decided on 12.2.07), and larger Bench decision of the Tribunal in the case of Ashok Kumar Aneja -vs-UOI, 2009 (1) AISLJ 262, that any grading below the bench mark affecting next promotion is to be treated as adverse and needs to be communicated to the employee giving him an opportunity to represent. The Apex scale promotion is on outstanding merit basis and therefore the Selection Committee will select the most meritorious and outstanding candidate based on ACR grading, or other parameters as stipulated in the Govt. guidelines. Therefore, downgradation of grading in ACR below the bench mark is required to be communicated. It is 31 for the authorities to consider this aspect before fresh selection is made by properly constituted selection committee to avoid any further litigation.
44. In view of our discussions above, we dispose of this OA along with MA by issuing the following directions.
i) The State respondents are directed to review the promotions given to the applicant and others, to the cadre of PCCF , in consultation with the Central Govt. i.e. cadre controlling authority and readjust to ensure that all such promotions are made only against cadre posts, without, however, affecting the right of any as all of them were regularly promoted to the said post. For the purpose, if necessary, temporary inclusion or non-cadre post in the cadre post in the cadre schedule may be made under the rules in consultation with the Central govt. and with their concurrence.
ii) The Central Govt. be moved for reconstitution of the Special Committee for first selection to the apex scale of PCCF by inducting and/or co- opting officers of equivalent grade holding apex scale from the Central Govt. or otherwise and complete the selection process after obtaining necessary clarifications/instructions from the Central Govt. in the light of the observations made above within 4 months from the date of communication of this order. For the purpose the promotion order dt. 31.8.09 is set aside.
iii) Till then the State respondents will be at liberty to make officiating arrangement in the post of PCCF, Apex Scale temporarily for limited period to manage the day to day administration strictly in terms of DOPT circular dt. 7th May 2001 referred to in para 27 above with the clear understanding that such appointee shall have no right to claim the post on regular basis.
iv) No cost.
32
45. Let a copy of this order be sent each to the respondent No. i.e. Secretary, MoEF, and Secretary, DOPT, and Govt. of India for such action as may be considered fit and proper.
Sd/-K. V. Sachidanandan"
On scanning the finding and observation of learned Tribunal below, it appears that applying the judgement of the case E. P. Royeppa vs. State of Tamil Nadu & Ors., reported in AIR 1979 SC 555, the issue was adjudicated, by holding inter alia that Shri Mirza Asghar Sultan who is in the cadre of Indian Forest Service was denied his placement/posting to a cadre post of Principal Chief Conservator of Forest, at the relevant time, from the post of Additional Chief Conservator of forest, a feeder post, due to his placement/posting in an ex-
cadre post, created by the State Government temporarily, on application of second proviso to Rule 4 (2) of I.F.S. (Cadre), Rules 1966 and that too for a limited period of one year which lapsed due to non-approval of the post by the Central Government and thereafter he was placed in another ex-cadre post, newly created by the State Government exercising power under said rule, for limited period, extended tenure of which also as yet has not been approved by the Central Government.
It appears from the finding of the learned Tribunal which is an admitted position that Shri Sultan is a Senior most Officer of I.F.S. cadre, who was enlisted as fit person for promotion to Principal Chief Conservator of Forest, Grade and a cadre post of said grade was vacant on 1.01.2006. But by creating 33 an ex-cadre post of Principal Chief Conservator of Forest, Research and Monitoring, in exercise of power under Rule 4 (2) of aforesaid rule, he was posted therein w.e.f 1.1.2006 and subsequently, when this post was not approved by the Central Government for extension of 2 years more as per the said I.F.S. (Cadre) Rules, a new post was created further by naming it Principal Chief Conservator of Forest, Research, Monitoring and Development, with effect from 30th December, 2008, wherein Sri Sultan again was posted. The learned Tribunal below held that difference between those two ex-cadre posts, was only in naming of the post, namely, in one post the word development was added with the earlier designation of another post. It is further finding of the learned Tribunal below that there was no declaration by the State Government that the posts as created as ex-cadre posts were equivalent in status and responsibility of cadre post of schedule, in terms of Rule 9, Sub Rule (1) of Indian Forest Service (Pay) Rules and as such a cadre post holder could not be posted in such ex-cadre post.
Though, the learned Tribunal held that inclusion/addition of any post as a cadre post in the cadre strength under said I.F.S. (Cadre) Rules was vested to the Central Government and Central Government did not enhance cadre strength by including newly created ex-cadre post, created by the State Government, on application of second proviso of Rule 4 (2) of the said I.F.S. (Cadre) Rules, hence said post could not be considered as cadre post, but despite such finding, did not quash appointment of one Junior Officer Shri Atanu Raha, by promotion in the cadre post of Principal Chief Conservator of Forest, West Bengal, though at the 34 material point of time, the applicant, Shri Sultan, holder of an ex-cadre post, was eligible for his placement in said cadre post. Learned Tribunal below quashed the selection and appointment of Shri Raha as Principal Chief Conservator of Forest, apex scale, an upgraded post from PCCF, West Bengal, on ground of defect in the constitution of Selection Committee and directed to constitute selection committee properly to select best candidate on merit. Regarding placement and posting of Shri Sultan, Learned Tribunal directed Central Government to include the ex-cadre post occupied by Sri Sultan in the cadre post of Indian Forest Service (Cadre) Rules aforesaid and thereby to regularize the matter by placing Sri Sultan in a cadre post.
It is the case of the writ petitioner Shri Sultan in his writ application that the placement in an ex-cadre post which was created for a limited period and which never was approved by the Central Government to extend tenure, caused great injustice upon him, a senior most Officer in the I.F.S. cadre and for that reason fair consideration of his candidature in the post of Principal Chief Conservator of Forest, (apex scale), was affected as a Junior Most Officer Mr. Atanu Raha, respondent herein, who was in the post of Additional Chief Conservator of Forest was brought promoting him in cadre post of Principal Chief Conservator of Forest, West Bengal without placing the writ petitioner in the said cadre post which fell vacant and thereafter his selection to one upgraded post of PCCF in apex scale. Prayer has been made to quash the appointment of Shri Raha in the cadre post of Principal Chief Conservator of Forest, West Bengal, and 35 to place the writ petitioner in that cadre post with effect from 31st March, 2007 to cause remedy of his injury as suffered in service carrier and thereafter to select a best candidate to the upgraded post of Principal Chief Conservator of Forest, in apex scale, from the candidates holding cadre posts of Principal Chief Conservator of Forest.
For effective adjudication of the point as raised regarding denial of placement in a cadre post of Principal Chief Conservator of Forests with effect from 31st March, 2007 when said Sri Raha got placement in said post from lower feeder post of Additional Principal Conservator of Forests and consideration of placement issue by selecting a best candidate in one upgraded cadre post of Principal Chief Conservator of Forest, in apex scale, the relevant rules and regulations controlling promotional aspect, creation of ex-cadre post, cadre strength provision as applicable etc., are required to be discussed from the relevant rules/regulation/office memo/circular.
The relevant rules/regulation/office memo/circulars are as follows:-
(i) The Indian Forests Service (Cadre) Rules, 1966 and related circular/guidelines of Government of India
(ii) Indian Forests Service (Pay) Rules, 2007 36
(iii) Indian Forests Service (Pay) Second Amendment Rules, 2008 and IAS Guidelines regarding promotion to various grades dated 28th March, 2000 and 7th May, 2001
(iv) Indian Forest Service Revision Guideline regarding promotion to various grades dated 18th November, 2002, DoPT Government of India Circular dated 14th May, 2007 regarding confirmation of vacancy in selection grade and above, Indian Forest Service (Fixation of Cadre Strength) second Amendment Regulation, 2007, All India Service (Confidential Rules, )1970, MoEF Guidelines dated 16th April, 2009 for selection to the post of Principal Chief Conservator of Forests in Apex Scale of Indian Forests Service & Civil List published by MoEF Government of India.
Relevant portion of The Indian Forest Service (Cadre) Rules, 1966 read such:
"In exercise of the powers conferred by sub-section (1) of Section 3 of the All India Services Act, 1951 (61 of 1951) the Central government, after consultation with the Governments of the States concerned, hereby makes the following rules, namely:
1. Short title and commencement .- 1(1) These rules may be called the Indian Forest Service (Cadre) Rules, 1966.
1(2) They shall be deemed to have come into force with effect from the 1st July, 1966
2. Definitions.-In these rules, unless the context otherwise requires.- 37 2(a) 'cadre officer' means a member of the Indian Forest Service; 2(b) 'cadre post' means any of the posts specified under item 1 of each cadre in the Schedule to the Indian Forest Service (Fixation of Cadre Strength) Regulations, 1966;
2(c) State government concerned, in relation to a Joint cadre, means the Joint Cadre Authority.
3. Constitution of Cadres- 3(1) there shall be constituted for each State or Group of states an Indian Forest Service cadre.
3(2) The cadre so constituted for a State or a group of states is hereinafter referred to as a 'State Cadre' or, as the case may be, a 'Joint Cadre'.
4. Strength of Cadres. 4(1) The strength and composition of each of the cadres constituted under rule 3 shall be as determined by regulations made by the Central Government in consultation with the State Governments in this behalf.
4(2) The Central Government shall, at the interval of every five years, re- examine the strength and composition of each such cadre in consultation with the State Government concerned and may make such alterations therein as it deems fit:
provided that nothing in this sub-rule shall be deemed to effect the power of the Central Government to alter the strength and composition of any cadre at any other time:
provided further that the State Government concerned may add for a period not exceeding one year, and with the approval of the central government for a further period not exceeding two years to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts. Government of India's instruction under Rule 4(2) 1.1 Under Second proviso to sub-rule 2 to Rule 4 of the cadre rules, the State Government is competent to add for a period not exceeding one year, and with the approval of the Central Government for a further period not exceeding two years to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts.38
Doubts have been raised whether such posts are to be considered as cadre posts or as ex-cadre posts against the State Deputation Reserve. It is hereby clarified that the posts which are created in exercise of the powers of the State Governments under the second proviso under sub- rule 2 of rule 4 of the cadre rules are to be counted as temporary cadre posts added temporarily to the cadre schedule and as such, they are not to be counted against the State Deputation Reserve. However, only such posts which are created for increasing the number of posts with a particular designation already included in the cadre schedule would be counted in this category.
1.2 On the other hand, it a post with a particular designation does not figure in the cadre schedule, it cannot be created by invoking this power. It can be created as per necessity by the State Government under their inherent powers and the members of the All India Services cannot be deployed to such a post unless a declaration is made that the post is equal in status and responsibility to a post mentioned in Schedule III to the respective Pay rules under sub Rule 1 of rule 9 of the same Rules. However, for sufficient reasons to be recorded by writing such a declaration may be dispensed with vide sub-rule 4 of rule 9 of the respective pay rules.
1.3 Neither a post which is declared equivalent in status and responsibility to a post included in the pay schedule, nor a post in respect of which such a declaration has been dispensed with, is a cadre post. Such a post is to be counted against the State Deputation Reserve. Apart from these posts, the other kinds of posts which are to be counted against the State Deputation Reserve are as follows:-
(i) posts under the Government of a State other than the one of the cadre of which the officer is borne.
(ii) Posts under a company, Association or a body of individual, whether incorporated or not, which is wholly or substantially owned or controlled by the Central 39 Government or a State Government or a Municipal Corporation or a local body, other than the cadre post of a State Cadre on which the officer is borne.
(iii) Posts under an international organisation or an autonomous body not controlled by the Government or a private body.
1.4 Central Deputation Reserve will continue to be constituted of the posts under the Central government.
1.5 To this extent, the orders of Government of India vide DOPR&AR letter No.4/12/70-AIS(I) dated 26.5.71 stand modified.
1.6 These instructions may be brought to the notice of all members of the service.
[DOPT letter No.11033/1/98-AIS(II), dated 23.4.1999] 2.1. Reference this Department's letter dated 23rd April 1999 on composition of Central and State Deputation Reserve-posts in the International organisation or autonomous bodies not controlled by the Government or a private body were decided to be counted against the State Deputation Reserve in Para 3(iii) of the above mentioned letter, whereas vide letter dated 16th April , 1975 it was decided, at the instance of the State Government, that such posts would be counted against the Central Deputation Reserve as it led to overutilisation of the State Deputation Reserve and the deputation of member of the All India Service to these posts in arranged by the Government of India and accordingly officers holding posts in such organisation should be counted against the Central Deputation Reserve.
2.2. It is, therefore, decided that posts under international organisation or autonomous bodies not controlled by the Government of India or a 40 private body would continue be counted against the State Deputation Reserve as stated vide letter dated 16th April 1975.
2.3. To this extent, even number letter of Government of India issued on April 23, 1999 stands modified.
[modified vide DOPT letter No.11033/.1/98-AIS(II), dated 6th August 1999]
3. The undersigned is directed to Ministry of Environment and Forest's O.M No.12026/5/98-IFS.I dated 2nd June, 1999 on clubbing of deputation tenure against posts in Autonomous bodies and forestry posts under the Central Staffing Scheme of Ministry of Environment and Forests and to state that vide letter dated 16th April 1975, it has been decided that posts under international organisation or autonomous bodies not controlled by the Government or a private body counted against Central Deputation Reserve. Accordingly, the provisions of 'cooling off' over all ceiling of 7 years outside the state for CSS and non CSS posts shall not come for these posts as well.
5. allocation of members to various cadres.
5(1) the allocation of cadre officers to the various cadre shall be made by the Central Government in consultation with the State Government concerned.
5(2) The Central Government may, with the concurrence of the State Government concerned, transfer a cadre officer from one cadre to another cadre.
6. Deputation of cadre officers. 6(1) A cadre officer may, with the concurrence of the State Government or the State Governments concerned and the Central government, be deputed for service under the Central government or another State Government or under a company, association or body of individuals, whether incorporated or not, which is wholly or 41 substantially owned or controlled by the Central government or by another State Government.
(2) A cadre officer may also be deputed for service under-
(i) a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by a State Government, a municipal corporation or a local body, by the State Government on whose cadre he is borne; and
(ii) an international organisation, an autonomous body not controlled by the Government or private body, by the Central government in consultation with the State Government on whose cadre he is borne Provided that no cadre officer shall be deputed to any organisation or body of the type referred to in item (ii), except with his consent; Provided further that no cadre office shall be deputed under sub-rule (1) or sub-rule (2) to a post carrying a prescribed pay which is less than, or a pay scale, the maximum of which is less than, the basic pay he would have drawn in the cadre post but for his deputation.
7. Posting- All appointments to cadre posts shall be made. 7(a) in the case of a State Cadre, by the State Government; and 7(b) in the case of a Joint Cadre, by the State Government concerned:
provided that for the purpose of filling leave vacancies or for making temporary arrangements for a period not exceeding three months, the State Government may delegate to Heads of Departments, its powers of making appointments to cadre posts.
8. Cadre and ex-cadre posts to be filled by cadre officers- 8(1) Save as otherwise provided in these rules, every cadre post shall be filled by a cadre officer.
428(2) A cadre officer shall not hold an ex-cadre post in excess of the number specified for the concerned State under item 5 of the Schedule to the Indian Forest Service (Fixation of Cadre strength) Regulations, 1966. 8(3) The State Government may, with the prior approval of the Central Government, appoint a cadre officer to hold an ex-cadre post in excess of the number specified for the concerned State in item 5 of the Schedule to the Indian Forest Service (Fixation of Cadre Strength) Regulations, 1966 and for so long as the approval of the Central government remains in force, the said ex-cadre post shall be deemed to be an addition to the number specified in item 5 of the said Schedule.
9. Temporary appointment of non-cadre officers to cadre posts. 9(1) A cadre post in a State shall not be filled by a person who is not a cadre officer except in the following cases, namely:-
9(1) (a) if there is no suitable cadre officer available for filling the vacancy;
Provided that when a suitable cadre officer becomes available, the person who is not a cadre officer, shall be replaced by the cadre officer. Provided further that if it is proposed to continue the person, who is not a cadre officer, beyond a period of three months, the State Government shall obtain the prior approval of the Central Government for such continuance; 9(1) (b) if the vacancy is not likely to last for more than three months;
Provided that if the vacancy is likely to exceed a period of three months, the State Government shall obtain the prior approval of the Central Government for continuing the person who is not a cadre officer beyond the period of three months.43
9(2) A cadre post shall not be filled by a person who is not a cadre officer except in accordance with the following principles, namely:-
9(2)(a) if there is a Select List in force, the appointment or appointments shall be made in the order of names of the officers in the Select List;
9(2) (b) If it is proposed to depart from the order of names appearing in the Select List, the State Government shall forthwith make a proposal to that effect to the Central Government the post and may in the light of the advice given by the Union Public Service Commission give suitable direction to the State government concerned.
10. report of the Central Government of vacant cadre posts- Cadre posts shall not be kept vacant or held in abeyance for periods exceeding six months without the approval of the Central Government for this purpose, the State Government shall make a report to the Central Government in respect of the following matters, namely:-
10(a) the reasons for the proposal;
10(b) the period for which the State Government proposes to keep the post vacant or hold it in abeyance;
10(c) the provision, if any, made for the existing incumbent of the post; and 10(d) whether it is proposed to make any arrangements for the performance of the duties of the post to be kept vacant or held in abeyance, and if so, the particulars of such arrangements.
11. Holding of more than one post by a cadre officer.-
11(1) The State Government concerned in respect of the posts borne on the State Cadre or the Joint Cadre as the case may be, may for the purpose of 44 facilitating leave arrangements or for making temporary arrangements, for a period not exceeding six months, direct that any two cadre posts or a cadre post and an equivalent post may be held simultaneously by one single cadre officer.
Provided that for the purpose of filing leave vacancies or for making temporary arrangements for a period not exceeding three months, the State Government may delegate to Heads of Departments, its power of making appointments to cadre posts.
11(2) where the State Government concerned is of the opinion that it is necessary so to do, it may, with the prior approval of the Central Government, order that the posts directed by it to be held simultaneously by one single cadre officer under sub-rule (1) , may continue to be so held for a period beyond six months but, in any case, not beyond twelve months from the date with effect from which the posts were first directed to be so held under sub-rule (1).
11A. Authority to exercise certain powers in respect of members of the Service serving in connection with the affairs of the States constituting a Joint Cadre- The powers of the State Government under the second proviso to sub-rule (2) of rule 4, under clause (I) of sub-rule (2) of rule 6 and under rules 7, 10 and 11 in relation to the members of the service serving in connection with the affairs of any of the Constituent States shall be exercised by the Government of that State.
12. Interpretation.- if any question arises as to the interpretation of these rules, the same shall be decided by the Central Government. [M. H. A. Notification No.2/2/64-AIS(IV) dated 1-9-1966]" 45
It appears from the records that under Indian Forests Service (Fixation of Cadre Strength) Regulation 1966, which subsequently was amended being first amendment and thereafter second amendment by notification dated 11th December, 2007, there are two cadre posts of Principal Chief Conservator of Forests in West Bengal one is named as Principal Chief Conservator of Forests, West Bengal and another Principal Chief Conservator of Forest (Wildlife and Bio-
diversity Conservation). Below those two posts, there are Additional posts of Principal Chief Conservator of Forests, cadre post, in total four in numbers namely Additional Principal Chief Conservator of Forest(Wildlife and Bio-diversity Conservation), Additional Principal Chief Conservator of Forest(Human Resource and Development of Vegetarian), Additional Principal Chief Conservator of Forest(Soil Conservation & Extension Forestry) and Additional Chief Principal Conservator of Forest(Finance).
On 29th December, 2005 the State of West Bengal issued a Government order creating an ex-cadre post of Principal Chief Conservator of Forests (Research & Monitoring) on exercise of power under Rule 4(2) Second Proviso of Indian Forests Service (Cadre) Rules, 1966. At the relevant time on 31st December, 2005, a cadre post of PCCF (Wildlife), fell vacant and though Sri Sultan, the writ petitioner was the senior most candidate but he was placed by promotion from the lower feeder post of Additional Principal Chief Conservator of Forest in the said ex-cadre post, created for a period of one year and on the same date another junior candidate Sri S. B. Mondal who is respondent No.6 herein, 46 was posted in the cadre post of PCCF (Wildlife). Subsequent thereof on 31st March, 2007 the post of PCCF West Bengal fell vacant and therein Sri A. K. Raha was posted by promotion.
The State Government has produced the file FR/O/G/4E-3/05(Pt.-I) relating to creation of a post of PCCF(R&D), an ex-cadre post. From the note sheet dated 24th November, 2005 the following appears :-
" As desired by Joint Secretary, the part file is started.
At present there are two cadre posts of PCCF and one ex-cadre post of PCCF. For creation of another ex-cadre post of PCCF, approval of finance department has been obtained. HCM has kindly approved to place the matter before cabinet for kind approval and the same has been placed before the cabinet for approval.
If it is approved then there will be two cadre posts of PCCF and two ex-cadre posts of PCCF. As desired by the higher authority, they may look after the works as noted below:-
1) PCCF, WB-Administration, establishment works, social forestry, schemes and law matters.
2) PCCF, WL&BD-All matters relating to wildlife A)
3) M.D WBFDC-All matters relating to West Bengal Forest Dev. Corpn.
Ltd.
4) New post of PCCF-research, monitoring, working plan and soil conservation.
The file may be placed before the higher authority for kind information and orders.
'A' at P-I is put up for kind perusal.
MIC wanted this to be put up-the designation of the Spl. PCCF may be seen for approval or orders , if any.
The new PCCF may be called PCCF(Research & Monitoring). MIC may like to see. We may now appoint an officer from the panel. In brief 47
1) G.O. in connection with creation of temporarily ex-cadre post of PCCF(R&M) may now be issued.
As such, Draft-I in that regard is put up for approval.
2) A copy of the cabinet decision in connection with creation of ex-cadre post of PCCF(R&M) may be sent to finance department (Audit) for their knowledge.
3) As per recommendation of screening committee Sri M. A. Sultan and Sri S. B. Mondal may be promoted to the post of PCCF Grade fallen vacant due to superannuation of Sri B. B. Singh on 31.12.05 and also creation of a new post of PCCF(R&M) (ex-cadre).
As such, their promotional posting should be settled by the higher authority w.ef. 1.1.06."
From perusal of the said note sheet it appears that the concerned post of PCCF(R&M) was created as an ex-cadre post for one year in terms of provision as laid down in second proviso of Rule 4(2) of IFS Cadre Rules, 1966.
From the said file it further appears that Joint Secretary, Forest Department on 8th December, 2005 referred a note for onward placement to the Ministry level regarding promotion and posting of Sri M. A. Sultan, the writ petitioner and Sri S. B. Mondal one of the respondents, who were eligible/fit for being promoted to PCCF grade as declared by screening committee. The relevant note read such:-
"1) The draft containing the creation of post of PCCF Research and Monitoring has been signed and another draft has also been signed.
May kindly approve.
2) Mr. M. A. Sultan(1976) and Mr. S. B. Mondal (1976) who have already been found fit for promotion to the posts of PCCF by the screening committee may be promoted to the posts of PCCF w.e.f.
1.1.06 on completion of their Thirty years of services against the vacant post of the newly created PCCF (ex-cadre) and the one which 48 will be vacant on 31.12.2005 due to superannuation of Mr. K. K. Singh on 31.12.2005.
Sd/-
Joint Secretary Forest Department May be approved (It will also require approval of CS/CM) Hon'ble CM On 1) above, the draft on creation of the post of PCCF(R&M) is approved. Regarding 2) above, both Sri MA Sultan and Shri S B Mondal may be promoted to the post of PCCF. The replacement for Shri K. K. Singh, PCCF may kindly be decided. This has already been decided.7"
On December, 2005 a file was re-submitted being file No.FR/O/6/10A/1/05(Pt-II) regarding promotion of Sri Sultan and Sri Mondal. The note therefrom read such:-
"Resubmitted:-
As desired by the Joint Secretary, the file is resubmitted. The matter relates to posting of IFS officers in PCCF grade. It may be stated here that:-
1) Shri K. K. Singh, PCCF, West Bengal is going to retire on superannuation with effect from 31.12.2005(A/N)
2) One Ex-cadre post in PCCF grade is going to be created. Shri M. A. Sultan and Shri S. B. Mandal has been found fit by the screening committee for promotion to PCCF grade. They will complete 30 years of service on 31.12.05 and will be entitled to get promotion to PCCF grade with effect from 1.1.06. a file in this regard has been placed before the higher authority.
3) Shri K. C. Gayen, has been holding the post of PCCF, Wildlife & Bio-
Diversity.
4) Shri Arin Ghosh, has been holding the post of MD, WBFDC Ltd. in the PCCF grade.
The file may be placed before the higher authority for kind orders regarding posting of the IFS officer in PCCF grade with effect from 1.1.06.
Decision in regard to point 2 above may kindly be taken. Notes above The posting of four IFS officer in PCCF Grade w.e.f 1.1.06 may kindly be determined."
49
The Minister-in-charge, Forest, placed posting order as per his choice by posting Sri Sultan who was senior than Sri Mondal, in the ex-cadre post of PCCF (R&D), though one cadre post of PCCF(Wildlife) was vacant at that time. The Chief Minister also approved the same. The note sheet read such:-
"Notes Prepage There are 4 (four) posts of PCCF. The following may be the arrangement for distribution of duties.
1. Shri K. C. Gayen, IFS-He is very honest and dynamic officer. He may be given the post of PCCF, West Bengal
2. Sri Arin Ghosh, IFS-He may be continue as M.D, WBFDCL
3. Sri S. B. Mondal, IFS- according to me he will be fit candidate for PCCF, Wildlife
4. Sri M. A. Sultan, IFS- He has vast experience in research and monitoring. So he may be given the charge of PCCF, Research & Monitoring.
Sd/-
(Jogesh Barman) MIC, Forest Hon'ble Chief Minister May be approved Sd/-
Chief Minister"
No reason assigned from the Ministry level as to why a cadre officer Sri Sultan, being a seniormost officer selected by the screening committee as an eligible and fit officer for promotion to PCCF grade, was posted to an ex-cadre post. The judgement of E. P. Royappa (supra) case was not even considered by the concerned Ministry including the Chief Minister though that judgement had a binding effect upon them. A breach caused accordingly. 50
A notification was issued on 29th December, 2005, being notification No.5170/FOR, posting Sri Sultan in ex-cadre post and on the same date another notification, subsequent to the said notification being No.5171/FOR was issued posting Sri Mondal in the cadre post of PCCF(Wildlife & Bio-diversity). Those notification read such:-
"Government of West Bengal Forest Department NOTIFICATION No.5171/For Date: 29.12.2005 The Governor is pleased to appoint Shri S. B. Mondal, IFS now posted as Addl. P.C.C.F, Development and Planning, on promotion to the Grade of PCCF, w.e.f. 1.1.2006 and post him as PCCF, Wild Life and Bio-diversity and CWLW, W.B until further orders.
Sd/-
By order of the Governor Joint Secretary Government of West Bengal "Government of West Bengal Forest Department NOTIFICATION No.5170/For Date: 29.12.2005 The Governor is pleased to appoint Shri M. A. Sultan, IFS now posted as Addl. P.C.C.F, Research, Working Plan and Monitoring, on promotion to the Grade of PCCF, w.e.f. 1.1.2006 and post him as PCCF, Research and Monitoring until further orders.
Sd/-
By order of the Governor Joint Secretary Government of West Bengal "
The minutes of the screening committee held on 26th October, 2005 selecting Sri Sultan and Sri Mondal by placing their serial number of selection on 51 merit namely nos.2 & 3 along with another officer Sri Gayen who was placed as No.1 read such:-
"MINUTES OF THE MEETING OF THE SCREENING COMMITTEE HELD ON 26.10.2005 IN CONNECTION WITH PREPARATION OF FIT LIST OF OFFICERS FOR PROMOTION TO THE GRADE OF PRINCIPAL CHIEF CONSERVATION OF FOREST Member Present.
1. Chief Secretary, West Bengal -Chairman
2. Additional Chief Secretary, Forest department -Member
3. Principal Chief Conservator of Forests, West Bengal-Member
4. Additional Director General of Forest, Ministry of Environment & Forest, Govt. of India -Member The Chief Secretary Presided over the meeting The Screening Committee examined the records of the seniormost eligible IFS officers who have completed thirty years of service as on 31.12.2004 or going to complete thirty years of service on 31.12.2005 and on the basis of their ACRs and other relevant records prepared A Fit List of following officers for promotion to the grade of Principal Chief Conservator of Forests.
1. Mr. K. C. Gayen, IFS
2. Mr. M. A. Sultan, IFS
3. Mr. S. B. Mandal, IFS The fit List will remain valid for one years.
Sd/- Sd/- Sd/- Sd/- PCCF Addl. Chief Secretary Addl. D.G of Forest Chief Secretary
West Bengal Forest department MOEF, Govt. of India West Bengal"
From the records as produced, (some notes quoted above), it appears that competent authority processing the matter through screening committee, on 31st December, 2005, promoted Sri Sultan in the rank/grade of Principal Chief Conservator of Forest and posted him in the ex-cadre post PCCF, R&M w.e.f 1.1.2006 and subsequent to posting of Sri Sultan, one Sri Mondal respondent 52 No.6 was promoted in the rank of PCCF and placed in the post of PCCF (Wildlife), w.e.f 1.1.2006, a cadre post. Sri Mondal subsequently was transferred w.e.f 31.1.2007 to an ex-cadre post being PCCF & Managing Director, West Bengal Forest Development Corporation, a post created in the year 2003. When Sri Mondal was posted in the said ex-cadre post, one Sri Bist junior to Sri Sultan & Sri Mondal, was promoted to the rank of PCCF and placed in the post PCCF(Wildlife), a cadre post, w.e.f 1.1.2007 and subsequently was placed to the post of PCCF, West Bengal, a cadre post and thereafter another junior Sri Raha was promoted to the grade of PCCF and posted in vacant cadre post PCCF, West Bengal, w.e.f 31.3.2007.
The original application was filed by Sri Sultan assailing said promotion order of Sri Raha and placement of Sri Raha in the cadre post of PCCF, West Bengal and selection of Sri Raha subsequently in the apex scale of PCCF, an upgraded post, effective from 27.9.2008, in terms of notification dated 27.9.2008 of IFS (Pay) Second Amendment Rule, 2008, on the ground that the writ petitioner being a senior most officer in IFS cadre when was legally entitled for being considered his placement in one of the two cadre posts, but without doing such, was placed in an ex-cadre post, on breach of the statutory rules. The learned Tribunal discussed the issue in detail by observing that on 1st January, 2006 though there was one vacant cadre post of PCCF wherein Sri Mondal was posted on promotion, Sri Sultan was denied berth in said cadre post of PCCF and subsequently another junior Sri Bist was brought to the said cadre post when Sri 53 Mondal vacated it without posting writ petitioner in the said cadre post and lastly in the year 2007 Sri Raha was promoted to the rank of PCCF and posted in a cadre post of PCCF, West Bengal, denying placement of Sri Sultan again. The selection process relating to selection in Apex scale also was under challenge on the ground that selection rules were not followed and in the zone of consideration Sri Raha was brought only for the purpose of awarding him a berth to the apex scale.
It is the submission of the State respondent that in the Forest service there are two cadre posts and two ex-cadre posts in the rank of PCCF and State Government considering the ACR and other particulars, interviewed said four candidates including the present petitioner who is holding post in the rank of PCCF for selection to the apex scale, wherein Sri Raha became the successful candidate and was placed in the apex scale on merit. It is further contended that State Government has power to create ex-cadre post being empowered under Rule 4(2) second proviso of Indian Forest Service (Cadre) Rules, 1966 and accordingly created ex-cadre post of PCCF, R&M on 29th December, 2005 and subsequently as there was no decision from the Central Government extending the tenure of the said post, another ex-cadre post was created in the name PCCF(RM&D) on 19th March, 2008 wherein Sri Sultan was posted and no wrong was committed in such placement.
54
It is the further contention that the order of the learned Tribunal is not legally sustainable as learned Tribunal below directed en-cadering of posts created as ex-cadre posts by directing the Central Government to increase the strength of cadre posts, though all said posts belong to the State cadre.
To consider the issue herein relevant rules are required to be dealt with in the angle of factual matrix as pleaded by the parties.
The Indian Forest Service (Cadre) Rules, 1966 is a rule framed in exercise of the power under Section 3(1) of the All India Service Act, 1951. Cadre post has been defined under Rule 2(3), which means the posts specified under item No.1 in the schedule of Indian Forest Service (Fixation of Cadre Strength) Regulation 1966. Rule 4 speaks about strength of cadre by stipulating that strength and composition of each cadre constituted under Rule 3 would be determined by the Central Government in consultation with the State Government. Rule 4 (2) provides scope of re-examination of strength and composition of each cadre at interval of every 5 years and second proviso of said rule deal with power of the State Government to add post with tenure not exceeding one year and with the approval of the Central Government for further period not exceeding 2 years to a State or joint cadre one or more posts carrying duties or responsibilities of like nature to cadre post.
55
Under Rule 8(1) of the said Cadre Rules, it is provided that every cadre post should be filled up by a cadre officer. Rule 8(2) of Cadre Rules mandates that a cadre officer will not hold any ex-cadre post created in excess of the number specified under item No.5 of the Schedule to the Indian Forest Service (Fixation of Cadre Strength) Regulation, 1966. In the affidavit as filed by the State Government, in the writ application of Sri Sultan and in the writ application filed by the State, it is admitted that as on 31st December, 2005 when promotion issue of cadre officers holding rank of Additional PCCF was taken up, case of Sri Sultan, a senior most officer, holding feeder post and rank, was considered first to promote him to the next higher rank of PCCF and he was promoted to the rank of PCCF. On the same date Sri Mondal's candidature was considered for promotion to the rank of PCCF and Sri Mondal was promoted in the said rank. Regarding placement of the respective candidates who were promoted in the rank of PCCF, Sri Sultan was posted with effect from 1.1.2006 in an ex-cadre post of PCCF created on 29th December, 2005 and Sri Mondal was posted in a cadre post of PCCF(Wildlife) on same date. Since there is a statutory embargo under Rule 8(1) of Cadre Rules that every cadre post should be filled up by the cadre officer and having regard to the judgement of the Constitution Bench E. P. Royappa(supra), no promotion of any cadre officer to an ex-cadre post could be made unless equivalency of status and responsibility of the ex-cadre post is declared following the said rule 9 of Pay Rules, under law, it could be deemed and presumed that Sri Sultan was promoted to the rank/grade of PCCF w.e.f 1.1.2006 in the vacancy of cadre post vacant at that moment, namely 56 PCCF(Wildlife) and therefrom, on the very moment, he was placed to an ex-cadre post of PCCF (R&M). In view of such posting under deeming contingency as discussed, there was no scope to provide promotional berth to the post of PCCF (Wildlife) considering the candidature of Sri Mondal, to render proper justice to Sri Sultan, a senior most officer of Indian Forest Service. Said view would be justified inasmuch as when it is the contention of the State respondent that Sri Sultan was selected on merit for promotion to the rank of PCCF by a promotional Committee duly constituted. Sri Mondal after working certain period in the post of PCCF (Wildlife) was posted to one ex-cadre post of PCCF & Managing Director, West Bengal Forest Development Corporation. He never raised any dispute regarding his placement to the ex-cadre post. In view of placement of Sri Mondal to an ex-cadre post on 31.1.2007, the cadre post PCCF (Wildlife) became vacant where another junior officer Sri Bist was posted promoting him in the rank of PCCF, without transferring the writ petitioner, holder of PCCF rank, in said cadre post. Subsequently, one Sri Gayen holding cadre post, PCCF, West Bengal retired, Sri Raha holding lower feeder post of Additional PCCF was brought by promotion in the said post of PCCF, West Bengal w.e.f 1.4.2007. At this time also, the writ petitioner's case was not considered for transfer to the said cadre post of PCCF, West Bengal.
Learned Senior Advocate Mr. Bhattacharya appearing for the State respondent however, has submitted before us that under Rule 4(2) second proviso of Indian Forest Service (Cadre) Rules, 1966, State Government is legally 57 entitled to create one or more posts carrying duties or responsibilities of like nature to cadre posts and applying the said rule ex-cadre posts of PCCF (R&M) as created with effect from 29th December, 2005 wherein on promotion to the rank of PCCF Sri Sultan was posted, was valid creation of an ex-cadre posts taking note of Indian Forest Service (Fixation of Cadre Strength) Regulation, 1966 as existing at the material time wherein the schedule of cadre strength under the heading "senior post" identified 17 posts of that nature, as State Government Reserve post, applying quota of 25%, State deputation reserve, out of total cadre post numbering 71. It is submitted accordingly that the creation of the ex-cadre posts is within the State deputation reserve of 17 posts in terms of schedule and there was no breach committed and the posts continued till it was changed by creation of another ex-cadre posts PCCF(RM&D) with effect from 26th December, 2008. He further contended that Sri Sultan occupied the post of PCCF(R&M) since 1st January, 2006 till 25th December, 2008 and thereafter he is holding ex- cadre post PCCF(RM&D) from 26th December, 2008 till this period. It is contended further that when the apex scale was introduced by second amendment of pay rules by notification dated 27th December, 2008, following the selection procedure prescribed, four IFS officers namely Sri Sultan, Sri Mondal, Sri Bist and Sri Raha who were holding the posts namely ex-cadre posts PCCF(RM&D), ex-cadre posts, PCCF and MD, West Bengal Forest Development Corporation and cadre posts PCCF(Wildlife) and PCCF(West Bengal), respectively, were interviewed by a proper selection committee and following the procedure 58 laid down, at the post judgement period, Sri Raha has been selected on merit and he is enjoying the apex scale of PCCF.
The language used for creation of the post PCCF (RM&D) and the posting orders of Sri Sultan therein read such:-
Government of West Bengal Forest Department For Branch Writers' Buildings, Kolkata-700 001 No.6923-For. Date: 26/12/2008 NOTIFICATION The Governor is pleased to accord sanction to the creation of an ex-cadre post in the rank of Principal Chief Conservator of Forests, to be designated as Principal Chief Conservator of Forests, Research, Monitoring & Development, in the scale of pay of Rs.75,500- Rs.80,000/- for a period of one year which may be extended for another two years with the approval of Govt. of India, in terms of the provisions as laid down in 2nd proviso to the Rule 4(2) of IFS Cadre Rules, 1966 with effect from 30.12.2008. The Ex-Cadre post is created in place of the earlier created Ex-Cadre post of Principal Chief Conservator of Forests, Research & Monitoring which will lapse after 29.12.2008, for improvement of green cover in the State through specialised forest development activities like intensive silvicultural research, production of quality planting materials, monitoring & evaluation of all forestry development activities, in-service training of subordinate forest staff as well as soil conservation works in ecologically fragile zones.
The Governor is further pleased to appoint Sri M. A. Sultan, IFS, Principal Chief Conservator of Forests, Research, Monitoring & Development in this newly created post, with effect from 30.12.2008 and until further orders.
The charges involved will proceed against appropriate Head of Accounts in the budget of Forest Department for the respective years under the Major Head "2406-Forest & Wildlife" and respective Drawing and Disturbing officer will continue to act as such for the purpose.
This issues with the concurrence of the Finance Department's U.O. No.4595 Gr. P service dtd. 26.12.2008.
59
(S. Nag)
Joint Secretary to the Govt. of West Bengal
No.6923/1-For. Date: 26.12.2008
Copy forwarded for information and necessary action to the Pr. A.G(A&E) West Bengal The above notification is issued in the interest of public Service.
Joint Secretary to the Govt. of West Bengal
No.6923/2(11)-For. Date: 26.12.2008
Copy forwarded for information to this:-
1) Secretary to the Govt. of India, Ministry of Environment & Forest
2) Principal Chief Conservator of Forests, West Bengal
3) Principal Chief Conservator of Forests, Research, Monitoring &
Development, West Bengal
4) Principal Chief Conservator of Forests, Wildlife, West Bengal
5) Managing Director, West Bengal Forest Development Corporation Ltd.
6) Joint Secretary to Hon'ble Chief Minister to the Govt. of West Bengal
7) P.S. to Minister-in-Charge, Forest, West Bengal
8) Pr. S., Chief Secretary, West Bengal
9) Finance Department ; of this Government with reference to U.O. No.4595
Gr. P. Service dated 26.12.2008
10) P & A.R Department, Govt. of West Bengal
11) Pr. S to Addl. Chief Secretary, Forest.
Joint Secretary to the Govt. of West Bengal
Sub: Creation of an ex-cadre post f Principal Chief Conservator of Forests-
The undersigned is directed by order of the Governor to say that the Governor is pleased to accord sanction to the creation of an Ex-cadre post in the rank of Principal Chief Conservator of Forests temporarily for a period of one year in terms of provisions as laid down in 2nd Proviso to Rule 4(2) of IFS Cadre Rules 1966 for better management in increasing 'Tree Coverage' to reach the national target of 33.3% of 'Greenary Coverage'.
The Governor is further pleased to decide that the incumbent to the above mentioned post will be designated as Principal Chief Conservator of Forests, Research and Monitoring, West Bengal, in the grade of Principal Chief Conservator of Forests, carrying pay scale of Rs.24050-26000/- and the incumbent holding the said post will look after the works of Research, Minitoring and Soil Conservation.
The charges involved will be proceed against appropriate head of accounts in the budget of Forest Deptt. For the respective years, sub-ordinate to the major head "2406-Forests &Wildlife."60
Respective Drawing and Disbursing officers will continue to act as such for the purpose.
This issues with the concurrence of the Finance Deptt. Vide UO No.2966-Group-A service dt. 28.7.05" (emphasis supplied) Mr. Bhattacharya, learned senior advocate, distinguished the case E. P. Royappa(supra), a judgement of Constitution Bench to this extent that in the case of E. P. Royappa(supra) the concerned post was non-cadre post and on that fact Apex Court passed observation and necessary findings, but here concerned post is within the "State deputation reserve", under the cadre schedule for West Bengal as identified by Indian Forests Service (Fixation of Cadre Strength) Regulation, 1966 and as such the principle laid down and the ratio decidendi of said case has no applicability.
Having regard to the contention of the parties and the factual matrix as discussed above the following points are required to be dealt with here-
(i) The post PCCF(R&M) as created on 29th December, 2005 whether is a post within the State deputation reserve and accordingly a cadre post in terms of Indian Forests Service(Fixation of Cadre Strength) Regulation, 1966.
(ii) What is the nature of creation of the posts PCCF (R&M) and subsequently the post PCCF(RM&D) created from 26th December, 61 2008 and placement and posting of Sri Sultan therein, by promotion in the rank of PCCF.
(iii) What is the conceptual idea of Rule 4(2) second proviso and the reflection of the same in the post created on 29th December, 2005 being PCCF (R&M) and the post created on 26th December, 2008 being PCCF (RM&D).
(iv) In absence of any declaration that newly created aforesaid posts carry the duties and responsibility of like nature of the cadre posts in terms of Rule 9 of the IFS (Pay) Rules, 1968, the impact and effect of Government of India (DOPT) No.20011/4/92-AIS(ii) dated 7th May, 2001 circular letter.
(v) Whether promotion of Sri Raha in PCCF grade from lower feeder post, was justified without adjusting placement of Sri Sultan in vacant cadre post of PCCF, West Bengal and on placement of Sri Sultan herein to render justice, whether there was any scope of promotion of Sri Raha in PCCF grade and his placement in cadre post PCCF, West Bengal, due to non-existence of vacancy in PCCF grade.
(vi) Whether following the E. P. Royappa(supra), the petitioner is entitled to get any relief by identifying his grievance.
The aforesaid points are interlinked with each other and those are taken up together for analysis. Under Rule 2(a) of IFS(Cadre) Rules, 1966, cadre officer, 62 has been defined as member of the Indian Forests Service. Rule 2(b) of the said Rule has defined "cadre posts" which means any of the posts specified under item No.1 of each cadre in the schedule to the Indian Forest Service (Fixation of Cadre Strength) Regulation, 1966. Rule 4(1) of the said rules provides that strength and composition of each of the cadre constituted under Rule 3 shall be as determined by the regulation made by the Central Government in consultation with the State Government. Rule 4(2) of the said Rules provides that Central Government shall at the interval of every 5 years re-examine the strength and composition of each such cadre and may make such alteration therein as it deems fit. Second proviso of the said rule empowers the State Government to add for a period not exceeding one year and with the approval of the Central Government for a further period of not exceeding 2 years, which was existing at the material time when Sri Sultan was placed in ex-cadre post, to a state or joint cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts. Rule 8 Sub Rule (1) provides that cadre posts shall be filled up by a cadre officer.
Sub Rule 2 of Rule 8 provides that a cadre officer should not hold an ex- cadre posts in excess of the number specified for the concern State under Cadre Strength Regulation, 1966. Under sub Rule 3 of Rule 8 only with prior approval of the Central Government, the State Government may appoint a cadre officer to hold an ex-cadre posts in excess of the number specified for the concerned State in item No.5 of the schedule of fixation of cadre strength Regulation, 1966. 63
The State Government has produced records as per direction of the Court. On perusal of the records, it appears that in exercise of the power under second proviso of Rule 4(2) of IFS Cadre Rules, ex-cadre post of Principal Chief Conservator of Forest (Research & Monitoring) was created with effect from 29th December, 2005 for one year and thereafter another ex-cadre post was created with effect from 26th December, 2008 named as PCF(RM&D) for 2 years(tenure amended). It appears from the records that no approval to retain posts for a further period not exceeding two years/three years respectively was accorded by Central Government and as such the post as was created on 29th December, 2005, breathed natural death on 28th December, 2006 and the post PCCF(RM&D) breathed last on 25th December, 2010.
From the language as used while creating those posts, it appears that posts were created identifying the posts as ex-cadre post and not posts within the State deputation reserve in terms of Indian Forest Service (Fixation of Cadre Strength) Regulation, 1966. The argument as advanced by Mr. Bhattacharya, senior advocate, appearing for the State respondent that the newly created posts PCCF(R&M), PCCF(RM&D) were not ex-cadre posts, but posts under State deputation reserve and within the cadre strength accordingly has no basis and foundation and the submission cannot be accepted in view of very nature of language used while creating the posts identifying them as ex-cadre posts and having regard to the Government of India MHA Letter No.27/28/64-AIS(iii) dated 64 24th March, 1996 and Government of India MHA letter No.14/53/65-AIS(iii) dated 21st March, 1966 which speaks that there should not be any long term ex- cadre posts and if there are any, those ought to be given to the cadre post and for short term ex-cadre posts deputation reserve in the cadre should be adequate. There is also a provision made therein that the balance between number of ex- cadre posts and deputation reserve posts could be resolved either by reducing the number of ex-cadre posts or increasing the deputation reserve, and vice versa. The letter dated 21st March, 1966 and 24th March, 1966 read such:
"1. The Government of India have clarified the scope of the second proviso to Rule 4(2) of the IAS(Cadre) Rules, 1954, as follows:-
1.1 It would appear from the above discussion that the provision was made to meet the sudden and immediate need for extra posts carrying duties or responsibilities analogous to cadre posts subject to the condition that such posts will be held by cadre officers only. In actual practice occasions for resorting to this provision will be rare and ordinarily the need for such extra cadre post is not for a period exceeding one year. If the need for such extra cadre posts is for a period exceeding one year generally the need is considered to be a permanent one unless the State Government are certain that they will not need such posts beyond a particular fixed period not exceeding three years in all. Therefore, steps should be taken for the inclusion of such posts in the permanent cadre on the expiry of one year. The idea is that by including such posts in the permanent cadre, the State Government will be able to assess correctly their needs for recruitment on the basis of the competitive examination.65
2. If the cadre strength is adequately fixed keeping in view the normal rate of growth of the cadre and the requirements of the plan etc. and if recruitment to the cadre has been on an adequate scale, the need for filling cadre posts by Select List Officers should rarely arise.
There should be no long term ex-cadre posts. If there are any, they ought to go into the cadre. For short term ex-cadre posts, the deputation reserve in the cadre should be adequate. If there is an imbalance between the number of the ex-cadre posts and the deputation reserve, then it can be redressed either by reducing the number of ex-cadre posts or increasing the deputation reserve." On perusal of the records as produced, it appears that on 30th December, 2005, the screening committee considered the names of two candidates holding the post of Additional Principal Conservator of Forest, cadre post, namely Sri Sultan and Sri Mondal and considering their seniority position, ACR and merit, selected respective candidates serially in the manner namely, first Sri Sultan and thereafter Sri Mondal. Said committee selected Sri Sultan considering his ACR and other relevant records as a fit candidate on merit for his promotion to the rank of Principal Chief Conservator of Forest. After such selection in the post of Principal Chief Conservator of Forest, it appears from the records that a posting order was made posting him in the newly created ex-cadre post of PCCF(R&M), on 1st January, 2006. Now what will be the nature of such posting and the question whether Sri Sultan was initially promoted to a cadre posts of PCCF which was lying vacant at that time being post of PCCF(Wildlife and Bio-diversity Conservation) one of the cadre posts, out of two posts of that rank identified in the cadre strength Regulation of 1966. To answer that, circular letter of 66 Government of India (Department of Personnel & Training) No.20011/4/92- AIS(II) dated 7th May, 2001 is applied. The said letter read such:
"Promotion to various grades may be made only when a permanent vacancy in the cadre notification issued by Central Govt. under various All India Service Cadre Rules exist. No promotion can be done against the posts which are created but are yet to be included in the cadre notification of respective service through Central Govt. notification- The State Govt. in such a situation will give the officiating charge to the senior most officer of lower grade to the grade in which the post is created and no DPC will be summoned for that. The State Govt. are only empowered to do review DPC and that too when the circumstances so warrant or Govt. of India gives direction to that effect. Any promotions which are made outside the respective cadre notifications of various services are ipso facto null and void. Such promotions basically destroy the cadre structure and defeat the very purpose of All India Service Cadre Rules."
On bare reading of the said circular letter of the Government of India, it appears that there is total restriction to promote any candidate in a post newly created which yet to be included in the cadre notification of respective service through Central Government notification and in case any appointment is required to be made in a newly created post not included in the cadre by notification of the Central Government, State Government may appoint one senior most officer of lower grade to the grade in which the post is created and there is no necessity of departmental promotion committee to select the candidate for that purpose and appointment will be officiating. It is further 67 provided in the said circular letter that promotion which are made outside the respective cadre notification of various services are ipso facto null and void and it basically destroy the cadre structure and destroy the very purpose of All India Service Cadre Rules.
Having regard to the said circular letter and the language used while creating said ex-cadre posts exercising the power under second proviso of Rule 4 sub Rule 2 of the IFS Cadre Rules, 1966 and on application of the circular letter of the Government dated 7th May, 2001 as quoted above, we are of the view that the State Government had no scope to promote Sri Sultan following a departmental promotion committee to the rank of Principal Chief Conservator of Forests for his posting in newly created ex-cadre post which was created only one day before his promotion and not included in the cadre notification issued by Central Government who is the authority to fix the cadre strength as per said cadre rule which has been discussed in details in the judgement passed by apex Court in the case E.P. Royappa(supra). Hence, having regard to the language used in the promotion order, record of which has been perused by us, it will be deemed that Sri Sultan was promoted by selection through a departmental promotion committee to the rank of Principal Chief Conservator of Forests in a cadre post as was lying vacant at the material moment namely the post of PCCF(Wildlife) and thereafter he was placed in the ex-cadre post of PCCF(R&M) in officiating capacity.
68
In the case E. P. Royappa(supra) the Constitution Bench discussed in details about the problem and difficulty as could be faced by a cadre officer in the event of any arbitrary action is followed by the State Government to promote a cadre officer in the higher post where no cadre post exists and posting is made to ex-cadre post by taking note of Rule 9 sub Rule (I) of the Indian Administrative Service (Pay) Rules, 1954 which is pari materia with the Indian Forests Service (Pay) Rules, 1968, subsequently became the rule 11(I) of the Indian Forests Service (Pay) Rule, 2007. At the material time when Sri Sultan was posted in the newly created ex-cadre posts of PCCF(R&M), the said IFS Pay Rules, 1968 was existing. The Rule 9(1) IFS (Pay) Rules, 1968 corresponding to Rule 11(I) of IFS Pay Rules, 2007 provides that no member of the service shall be appointed to a post other than a post specified in Schedule-II unless the State Government concern make a declaration that the said post is equivalent in status and responsibility to a post specified in said schedule. In the instant case admittedly no such declaration was made by the State Government on 29th December, 2005 when the ex-cadre post of PCCF (R&M) was created and after natural death of the said post after one year when subsequently another ex-cadre post was created in the name and style PCCF (RM&D) on 26th December, 2008. Under Rule 9(4) of IFS Pay Rules, 1968 corresponding to Rule 11(4) of IFS (Pay Rules), 2007, it is provided by a non-obstante clause that for sufficient reason to be recorded in writing, State Government may consider that equation of the post as created is not possible to be made by making necessary declaration that the said post is equivalent in status and responsibility of a post specified in Schedule-II. This rule 69 was also not followed by the State Government when they created ex-cadre posts as referred to above. The consequential situation thereof as would be faced by cadre officer was dealt with, in the E. P. Royappa(supra) in paragraph 82 of the report in details, which could be profitable to quote to have the decision of this case, which read such:-
"82. The petitioner is, however, on firmer ground when he bases his challenge under Rule 9, sub-rule (1) of the Indian Administrative Service (Pay) Rules, 1954. Rule 9, insofar as material, provides as follows:
"(1) No Member of the Service shall be appointed to a post other than a post specified in Schedule III, unless the State Government concerned in respect of posts under its control, or the Central Government in respect of posts under its control, as the case may be, make a declaration that the said post is equivalent in status and responsibility to a post specified in the said Schedule.
(2) The pay of a member of the Service on appointment to a post other than a post specified in Schedule III shall be the same as he would have been entitled to, had he been appointed in the post to which the said post is declared equivalent.
(3) * * * (4) Notwithstanding anything contained in this rule, the State Government concerned in respect of any posts under its control, or the Central Government in respect of any posts under its control, may, for sufficient reasons to be recorded in writing, where equation is not possible, appoint any member of the Service to any such post without making a declaration that the said post is equivalent in status and responsibility to a post specified in Schedule III."
This Rule is intended to provide a safeguard for the protection of a member of the Indian Administrative Service. Sub-rule (1) enacts that no member of the Indian Administrative Service shall be appointed to a post other than a post specified in Schedule III, or in other words, to a non-Cadre post unless the Government makes a declaration that such non-Cadre post is "equivalent in status and responsibility" to a post specified in the said Schedule i.e. to a Cadre post. If the State Government wants to appoint a member of the Indian Administrative Service to a non-Cadre post created by it, it cannot do so unless it makes a declaration setting out which is the Cadre post to which such non-Cadre post is equivalent in status and responsibility. The making of such a declaration is a sine qua non of the exercise of power under sub-rule (1). It is not an idle formality which can be dispensed with at the sweet will of the Government. It has 70 a purpose behind it and that is to ensure that a member of the Indian Administrative Service is not pushed off to a non-Cadre post which is inferior in status and responsibility to that occupied by him. So far as Cadre posts are concerned, their hierarchy would be known, but a non-Cadre post created by the Government would be stranger in the hierarchy, and that is why sub-rule (1) requires that before appointing a member of the Indian Administrative Service to such non-Cadre post, the Government must declare which is the Cadre post to which such non-Cadre post is equivalent in status and responsibility, so that the member of the Indian Administrative Service who is appointed to such non-Cadre post, would know what is the status and responsibility of his post in terms of Cadre posts and whether he is placed in a superior or equal post or he is brought down to an inferior post. If it is the latter, he would be entitled to protect his rights by pleading violation of Article 311 or Articles 14 and 16 of the Constitution, whichever maybe applicable. That would provide him effective insulation against unjust or unequal or unlawful treatment at the hands of the Government. The object of this provision clearly is to ensure that the public services are, in the discharge of their duties, not exposed to the demoralising and depraving effects of personal or political nepotism or victimisation or the vagaries of the political machine. The determination of equivalence is, therefore, made a condition precedent before a member of the Indian Administrative Service can be appointed to a non-Cadre post under sub-rule (1). It is a mandatory requirement which must be obeyed. The Government must apply its mind to the nature and responsibilities of the functions and duties attached to the non-Cadre post and determine the equivalence. There the pay attached to the non-Cadre post is not material. As pointed out by the Government of India in a decision given by it in MHA Letter No. 32/52/56-AIS(II), dated July 10, 1956 the basic criterion for the determination of equivalence is "the nature, responsibilities and duties attached to the post and not the pay attached to the post". Once the declaration of equivalence is made on a proper application of mind to the nature and responsibilities of the functions and duties attached to the non-Cadre post, sub- rule (2) says that the pay of the member of the Indian Administrative Service appointed to such non-Cadre post shall be the same as he would have been entitled to, had he been appointed in the Cadre post to which such non-Cadre post is declared equivalent. He is thus assured the pay of the equivalent Cadre post and his pay is protected. Now this declaration of equivalence, though imperative, is not conclusive in the sense that it can never be questioned. It would be open to a member of the Indian Administrative Service to contend, notwithstanding the declaration of equivalence, that the non-Cadre post to which he is appointed is in truth and reality inferior in status and responsibility to that occupied by him and his appointment to such non-Cadre post is in violation of Article 311 or Articles 14 and 16. The burden of establishing this would undoubtedly be very heavy and the Court would be slow to interfere with the declaration of equivalence made by the Government. The Government would ordinarily be the best judge to evaluate and compare the nature and responsibilities of the functions and duties attached to different posts with a view to determining whether or not they are equivalent in status and responsibility 71 and when the Government has declared equivalence after proper application of mind to the relevant factors, the Court would be most reluctant to venture into the uncharted and unfamiliar field of administration and examine the correctness of the declaration of equivalence made by the Government. But where it appears to the Court that the declaration of equivalence is made without application of mind to the nature and responsibilities of the functions and duties attached to the non-Cadre post or extraneous or irrelevant factors are taken into account in determining the equivalence or the nature and responsibilities of the functions and duties of the two posts are so dissimilar that no reasonable man can possibly say that they are equivalent in status and responsibility or the declaration of equivalence is mala fide or in colourable exercise of power or it is a cloak for displacing a member of the Indian Administrative Service from a Cadre post which he is occupying, the Court can and certainly would set at naught the declaration of equivalence and afford protection to the civil servant. The declaration of equivalence must, however, always be there if a member of the Indian Administrative Service is to be appointed to a non-Cadre post. The only exception to this rule is to be found in sub-rule (4) and that applies where the non-Cadre post is such that it is not possible to equate it with any Cadre post. Where the Government finds that the equation is not possible, it can appoint a member of the Indian Administrative Service to a non-Cadre post but only for sufficient reasons to be recorded in writing. This again shows that the Government is required to apply its mind and make an objective assessment on the basis of relevant factors for determining whether the non-Cadre post to which a member of the Indian Administrative Service is sought to be appointed can be equated to a Cadre post, and if so, to what Cadre post it can be so equated. This is the plain requirement of Rule 9, sub-rule (1) and the question is whether the appointment of the petitioner to the non-Cadre posts of Deputy Chairman, State Planning Commission and Officer on Special Duty was in compliance with this requirement."
The said rule 9(1) of IFS (Pay) Rules, 1968 and Rule 9(4) thereof read such:-
"No member of the service shall be appointed to a post other than a post specified in Schedule II, unless the State Government concerned in respect of posts under its control, or the Central Government in respect of posts under its control, as the case may be, make a declaration that the said post is equivalent in status and responsibility to a post specified in the said Schedule."72
"Notwithstanding anything contained in this rule, the State Government concerned in respect of any post under its control, or the Central Government in respect of any post under its control, may, for sufficient reasons to be recorded in writing, where equation is not possible, appoint any member of the Service to any such post without making a declaration that the said post is equivalent in status and responsibility of a post specified in Schedule II."
That after Sri Sultan was placed in ex-cadre post in the manner as discussed above, case of Sri Mondal was considered by the departmental promotion committee and he was selected to the rank of PCCF when there was no vacant cadre post.
From the factual matrix of the case, accordingly the Court will assume and it is justified to assume to have remedy of injustice committed upon Sri Sultan on 1st January, 2006 to this effect that Sri Sultan initially was promoted to a cadre post of PCCF(Wildlife), a substantive post and thereafter was placed on that date in the ex-cadre post of PCCF(R&M) by officiating arrangement where he continued his service, awaiting approval of Central Government on extension of tenure for 2 years more. But the problem started when another junior most officer Sri A. K. Raha holding the lower feeder post was promoted in the rank of Principal Chief Conservator of Forests on 31st March, 2007 and was placed in the post of PCCF, West Bengal, a cadre post, so held by one K. C. Gayen who retired on 31st March, 2007, without considering the placement of Sri Sultan senior 73 most officer to this cadre post of PCCF, West Bengal by transferring him from ex- cadre post as occupied by him. Sri Sultan accordingly made a representation agitating his grievance on that score on 5th April, 2007 to the Additional Chief Secretary, Department of Forest, Government of West Bengal. The representation read such:
" Government of West Bengal
Directorate of Forests
Office of the Principal Chief Conservator of Forests Research & Monitoring, West Bengal New CIT Building, 3rd floor P-16, India Exchange Place(Extn.), Kolkata- 700 073 Tel: Office-2235 7384(D.), Fax: 2234 1855 e-mail: [email protected] No.206/PCCF_R&M/2M-1 5th Apr 2007 To Smt. Kalyani Choudhury I.A.S Addl. Chief Secretary Deptt. Of Forests, GoWB Writers Building, Kolkata Respected Madame, Kindly allow me to make the following submissions for your kind information and necessary action, if any.
1. That I am the senior most Forest Officer (1976 IFS) in the State presently posted as Principal Chief Conservator of Forests (Research & Development), 3rd floor, C.I.T Building, P-16, India Exchange Place, Kolkata-73
2. That I have been serving most effectively the affairs of this State Forest Dept. since 1978 with utmost sincerity, honesty and dedication.
3. I do possess a wide spectrum of experience of having worked in all the important fields of Forestry Management in various capacities. My biodata as enclosed speaks for itself.
74
4. That on 31 Mar 2007 when Sri K. C. Gayan IFS retired from the post of "Principal Chief Conservator of Forests, W.B", I was the next eligible senior most officer for this post of highest authority and responsibility, followed by Sri S. S. Bist IFS and then Shri S. B. Mondal, IFS.
5. However, to our utter surprise and dismay, Shri A. K. Raha, IFS, who is No.4 in seniority, after getting promoted to the rank of PCCF on 31st March, has been posted as PCCF, WB vide G.O. No.2164-For Dt. 30.3.2007, vice Shri Gayen retired on superannuation, bypassing not only me but also two other officers senior to him.
I do not disagree or dispute the discretion of the Government to post any officer of the same rank to any post; still there are a few points which I may kindly be allowed to raise here since I, an All India Service Officer, legitimate right to serve the State from the highest level. • The "discretion" is expected to be supported by some justification (merit, qualification, experience etc.) instead of ad hocism and arbitrariness ! Posting the junior most PCCF to the post of highest authority and responsibility bypassing his as many as three seniors who are no less competent, warrants perhaps a strong justification! • As I have already been promoted to the rank of PCCF on 1.1.2006, justifies that my confidential reports were good. Had there been any adverse entry in my ACR, the same would have been communicated to me by now. I fail to understand as to why then I was not considered for this post! • Shri Raha is understood to be personally known to many political masters, while I am not. Is it considered as my disqualification for my legitimate right?
• I understand that the Government is mulling ways and means to improve the status of Minority Communities in the State. However, it is also a fact that at present there is no one in any of the three All India Services from any Minority Community who has reached the top position. Also, the recommendations of the Sachar Committee for the Muslims are equally relevant to this case of mine. In spite of all these factors, I do not understand as to why I was subjected to this injustice, just to favour someone else! In view of the above, could I call upon you to kindly look into my grievances and redress them appropriately and also favour me with a suitable reply for which I shall remain ever grateful. Regards, (M. A. Sultan) 75 Principal Chief Conservator of Forests Research & Monitoring, West Bengal Enclosure: Biodata"
A reply by the Joint Secretary to the Government of West Bengal, Department of Forest without redressing the grievance, read such:
"Forest Department Government of West Bengal Writers' Buildings, Kolkata-700 001 No.2469-For/SP-3/07 Dated 19.4.2007 To Shri M. A. Sultan, IFS Principal Chief Conservator of Forests Research & Monitoring West Bengal Sub: Appointment of Shri A. K. Raha, IFS, to the post of Principal Chief Conservator of Forests, West Bengal.
Sir, Please refer to your letter No.206/PCCF-R&M/2M-1 dt. 5th April, 2007 addressed to Additional Chief Secretary, Department of Forests, Government of West Bengal, on the above mentioned subject.
I am directed to state that the G.O. No.2164-For/FR/O/G/10A-2/07, dated 30.3.2007 posting Shri A. K. Raha, IFS on promotion to the post of Principal Chief Conservator of Forests, West Bengal, is the valid order of the appointing authority of the State of West Bengal and has been issued in the interest of Public service.
The appointment to all the 4 posts of Principal Chief Conservator of Forests, West Bengal, is made by the appointing authority on consideration of relevant factors including merit in the nature of past record, credibility, confidence commanded, etc. It is further clarified that all four posts of Principal Chief Conservator of Forests are of equal rank and carry the same scale of pay.
Yours sincerely, Sd/-
Jt. Secretary to the Govt. of West Bengal, 76 Department of Forests"
Sri Sultan thereafter moved the learned Tribunal in the original application number O.A No.1235 of 2008. During pendency of that, the Indian Forest Service (Pay) Second Amendment Rules, 2008 came into effect by notification dated 22nd September, 2008 whereby and where under, an apex scale of Rs.80,000/-(fixed) per month, was introduced by upgradation of one existing cadre post of Principal Chief Conservator of Forest, as head of forest force, in each state cadre. By circular letter of Government of India dated 16th April, 2009, it was directed that guidelines for selection of Principal Chief Conservator of Forest, Apex scale, should be followed strictly, said letter read such:-
"No.16019/1/2008-IFS.II Government of India Ministry of Environment and Forests Paryavaran Bhavan, CGO Complex Lodi Road, New Delhi-11003 Dated the 16th April, 2009 To All Chief Secretaries/Administrators of Uts Sub: Implementation of IFS(Pay) Second Amendment Rules, 2008 issued vide GSR 691(E) dated 27th September, 2008 Sir, I am directed to invite your kind attention to Rule 3(D) and Note-2 below the said rule of IFS(Pay) Second Amendment Ruels, 2008 whereby Principal Chief Conservator of Forests as head of Forest Service in the apex scale of Rs.80,000/- (fixed) in each State Cadre has been notified w.e.f. 27th September, 2008.
Guidelines for selection to the post of Principal Chief Conservator of Forests apex scale in each State cadre have been formulated in consultation with the Department of Personnel and Training and a copy of the same is enclosed 77 herewith. It is requested that the guidelines may be followed in letter and spirit while effecting selection to the post of Principal Chief Conservator of Forests (Apex Scale).
Yours faithfully, (A. K. Lal) Director Tel. No.011-2437077 Guidelines for selection to the post of Principal Chief Conservator of Forests (Head of Forest Force) in apex scale of Indian Forest Service Eligibility of Officers Following officers would be in the zone of consideration for the post of Principal Chief Conservator of Forests(Apex Scale)
i) Officers holding the post of PCCF in the state cadre in the HAG + Scale of Rs.75,000-80,000/-
Constitution of Selection Committee The Special Selection Committee shall comprise of the following:
1) Chief Secretary of the State concerned as Chairperson
2) Principal Secretary (Forests) of the State
3) PCCF (Apex Scale) of the State cadre concerned.
4) One PCCF in the Apex Scale nominated by MOEF. Parameters of Selection
Outstanding merit, competence, absolute integrity and having specific suitability for the post"
The eligibility criterion was officer holding the post of PCCF in the State cadre in the HAG+ scale of Rs.75,000/- - Rs.80,000/-.
The Indian Forest Service (Pay) Rules, 2007 was introduced by supersession of earlier pay rules of 1968 wherein under Rules 10 & 11 detail provision made about entitlement of pay of the cadre posts holder and the 78 embargo about reckoning of posts within the State deputation reserve without prior approval of the Central Government. Said Rule 10 & 11 read such:-
"10. Pay of officers holding posts included in Schedule II- A member of the Service appointed to hold a post specified in Schedule II shall, for so long as he holds that post, be entitled to draw the pay indicated for that post in the said Schedule plus Special Allowance or Central (Deputation on Tenure) Allowance, wherever admissible:
Provided that such pay shall not at any time be less than the pay admissible under rules 5 and 6 of these rules.
11. Pay of members of the Service appointed to posts not included in Schedule II-. (1) No member of the service shall be appointed to a post other than a post specified in Schedule II, unless the State government concerned in respect of posts under its control, or the Central Government in respect of posts under its control, as the case may be, make a declaration that the said post is equivalent in status and responsibility to a post specified in the said Schedule.
(2) The pay of a member of the Service on appointment to a post other than a post specified in Schedule II shall be the same as he would have been entitled to, had he been appointed to the post to which the said post is declared equivalent.
(3) For the purpose of this rule, post other than a post specified in Schedule II includes a post under a body (incorporated or not), which is wholly or substantially owned or controlled by the Government.
(4) Notwithstanding anything contained in this rule, the State Government concerned in respect of any post under its control, or the Central Government in respect of any post under its control, may, for sufficient reasons to be recorded in writing, where equation is not possible, appoint any member of the Service to any such post without making a declaration that the said post is equivalent in status and responsibility of a post specified in Schedule II.
(5) A member of the Service on appointment to a post referred to in sub-
rule (4), in respect of which no pay or scale has been prescribed, shall draw such rate of pay as the State Government, in consultation with the Central Government in the case of a post under the control of the State 79 Government, or as the Central Government in the case of a post under the Control of the Central Government may, after taking into account the nature of duties and responsibilities involved in the post, determine. (6) A member of the Service on appointment to a post referred to in sub- rule (4), in respect of which any pay or scale of pay has been prescribed, shall draw where the pay has been prescribed, the prescribed pay and where scale of pay has been prescribed, such rate of pay not exceeding the maximum of the scale as may be fixed in this behalf by the State Government or by the Central Government, as the case may be.
Provided that the pay allowed to an officer under this sub-rule and sub-rule (5) shall not at any time be less than what he would have drawn had he not been appointed to a post referred to in sub-rule (4). (7) At no point of time, the number of members of the Service appointed to hold posts, other than cadre posts referred to in sub-rule(1) and sub- rule (4), which carry the scale of pay of Rs.24050-650-26000 per mensem and which are reckoned against the State Deputation Reserve, shall, except with the prior approval of the Central government, exceed the number of cadre posts at that level of pay in a State cadre or in a Joint cadre, as the case may be."
In view of introduction of those as the State Government intended to select the candidate for apex scale and thereby Sultan's ACR was called for, said original application, was amended challenging further selection of Atanu Raha, in the apex scale, by order of the High Court passed in the writ application assailing the refusal to amend the original application by the Tribunal.
Having regard to the aforesaid circular letters and the embargo clause, it is crystal clear that a cadre post holder cannot be posted in an ex-cadre post which was created for short duration.
80
Having regard to the grievances made by Sri Sultan and the protest made by his representation, it appears that principle of waiver and estoppel to refuse relief for his placement in the cadre post of PCCF, West Bengal, cannot be applied even on application of E. P. Royappa(supra) wherein the Supreme Court did not grant any relief to the candidate Sri Royappa for the sole reason that gentleman accepted the appointment and did not raise any grievance. In the instant case there is a serious consequence to this effect that even though the ex- cadre post as created in the year 2005 breathed last after one year, but Sri Sultan was kept in that post. The entry of Sri Raha in the cadre post of PCCF, West Bengal on 31st March, 2007, was resisted by Sri Sultan promptly and immediately and he took shelter of the Court of law agitating his grievance.
Having regard to the findings of E. P. Royappa(supra), a judgement of Constitution Bench, wherein the law has been settled in that field by holding, inter alia, that Articles 14 and 16 strikes at arbitrariness in State action and ensure fairness and equality of treatment and the State must follow the relevant valid principle applicable alike and equality clause should not be denied, we are of the view that the aforesaid question as set up should be answered relying upon the said constitution bench judgement which has been followed by the learned Tribunal below.
The State Government has produced the file No.FR/O/G/10A-2/07, Forest Department, Government of West Bengal relating to promotion of Sri A. K Raha, wherefrom following facts are revealed.
81
(i) An office note was placed to convene the meeting of a screening committee to fill up the post of PCCF, West Bengal which was scheduled to be vacant due to retirement on superannuation of one Sri K. C. Gayen, effective from 31st March, 2007. This post of PCCF, West Bengal is a cadre post. The screening committee cleared the name of Sri Raha for promotion to the PCCF grade.
(ii) The placement and posting of the persons in the grade of PCCF was sought for by giving a note by the Joint Secretary, Forest Department on 19th March, 2007, addressed to the Principal Secretary, who in turn referred the matter to MIC, Forest Department and therefrom it went to the office of Chief Minister. The note sheet and the relevant particulars read such:-
" The p.u.d may kindly be seen.
The Screening Committee in its meeting on 19.3.2007 has selected Sri A. K. Raha, IFS(WB: 1977) for promotion to the grade of Principal Chief Conservator of Forests.
At present Shri M. A. Sultan, IFS(WB: 1976) has been posted as Principal Chief Conservator of Forests, Research and Minitoring. Shri S. B. Mondal, IFS(WB: 1976) has been posted as M.D. W.B. Forest Development Corporation and Shri S. S. Bist, IFS(WB:1977) has been posted as Principal Chief Conservator of Forests, Wild Life.
The post of Principal Chief Conservator of Forests, West Bengal shall fall vacant w.e.f 31.3.07 (afternoon) as a result of retirement on superannuation of Shri K. C. Gayen, IFS. The seniority position among these four IFS officers is as follows:-
1) Shri M. A. Sultan, IFS(WB: 1976)
2) Shri S. B. Mondal, IFS(WB: 1976)
3) Shri S. S. Bist, IFS(WB: 1977)
4) Shri A. K. Raha, IFS(WB:1977)
82
All the four (4) posts of Principal Chief Conservator of Forests including the post of MD, West Bengal Forest Dev. Corporation carry the same scale of pay.
A) In view of the position stated above decision may be taken as to who would be the next Principal Chief Conservator of Forest, West Bengal with effect from 31.3.2007(A.N) B) It may simultaneously be decided as to whether there would be any change of posting of the other three (3) IFS officers in the grade of Principal Chief Conservator of Forests.
Sd/-
Joint Secretary Forest Department Principal Secretary, Forest Department MIC, Forest Department H.C.M. A- Sri A. K. Raha IFS may be appointed on promotion as PCCF, WB B- Posting of three other IFS officers may remain unchanged."
(iii) Thereafter on that basis a promotion order was issued in the name of the Governor and a notification was issued on 30th March, 2007 promoting Sri Raha to the grade of PCCF and posting him in cadre post, PCCF, West Bengal, with effect from the date of assuming charge vice Sri Gayen retiring on superannuation with effect from 31st March, 2007. The notification read such:-
" Government of West Bengal
Forests Department
Writers' Buildings, Kolkata-700 001
NOTIFICATION
No.2164-For/FR/O/G/10A-07 Dated 30.3.2007
The Governor is pleased to appoint Sri Atanu Kumar Raha, IFS, now posted as Addl. PCCF, Development & Planning, West Bengal on promotion to the grade of Principal Chief Conservator of Forests and post him as Principal Chief Conservator of Forests, West Bengal until further orders and w.e.f the date of his assuming charges vice Shri K. C. Gayen, IFS retiring on superannuation w.e.f 31.3.2007(A.N) By order of the Governor 83 (P. D. Bandyopadhyay) Joint Secretary"
On scanning of said office note as quoted above, it appears that on 19th March, 2007 Joint Secretary, Forest Department wrongly informed the concerned Ministry about vacancy position in the PCCF grade. It appears that there is a mentioning of four posts of Principal Chief Conservator of Forest by quoting the name of Sri Sultan also in that list who was the seniormost officer at that time promoted in the PCCF grade with effect from 1st January, 2006. As already discussed earlier that Sri Sultan was posted in the ex-cadre post of PCCF(R&M) which was created with effect from 31st December, 2005 for one year only on application of proviso of Rule 4(2) of the IFS Cadre Rules and as there was no approval of Central Government for extending the tenure for further two years, said post breathed natural death on 1st January, 2007. Hence at that time when Joint Secretary placed a note on 19th March, 2007, there was existence of two cadre posts and one ex-cadre post in the PCCF grade, which were occupied by one S. B. Mondal holder of post Managing Director, West Bengal Forest Development Corporation, an ex-cadre post , Sri S. S. Bist holder of the post of PCCF(Wildlife), a cadre post and the post of PCCF, West Bengal which was scheduled to be vacant with effect from 31st March, 2007(afternoon), due to retirement on superannuation of one K. C. Gayen. From the said note sheet it further appears that a proposal was placed for change of posting of respective officers holding different posts namely of Sri Sultan, Sri Mondal and Sri Bist. It appears from the endorsement of said note sheet made by the Minister-in-Charge 84 of the Forest Department and the Chief Minister that change of placement of said officers, was refused. From the factual position of death of ex-cadre post of PCCF (R&M) by application of said statutory provision, concerned officer Sri Sultan automatically was eligible for placement in cadre post PCCF, W.B and as such there was no scope to pass any order of promotion in favour of Sri Atanu Kumar Raha in the PCCF grade as there was no existing vacancy in the PCCF grade. On 19th March, 2007 and subsequent thereof there was only three posts of PCCF grade, two cadre posts and one ex-cadre post. On application of legal position discussed in the case E. P. Roppya (supra), a judgement of Constitution Bench and which is also a judgement under Article 141 of the Constitution of India carrying a binding effect to the State, there was no scope to promote a junior officer Sri Raha without adjusting placement of Sri Sultan. As such entry of Sri Raha on promotion and placement in the post of PCCF, West Bengal, was ex-
facie bad in law and on breach of cadre rules, Government circulars and ratio decidendi of the case E. P. Roppya (supra). The promotion of Sri Raha accordingly was not sustainable and notification to that effect being notification No.2164-FOR/FR/O/G/10A-2/2007 dated 30th March, 2007 issued in the name of Governor stand set aside and quashed relating to the promotion and placement of Sri Raha in the post of PCCF, West Bengal. Non-consideration of posting of Sri Sultan in a cadre post of PCCF, West Bengal which was scheduled to be vacant effective from 31st March, 2007 (afternoon) due to retirement of Sri Gayen from that date, was also an arbitrary and unfair action on the part of the State Government. The State Government kept the fate of Sri Sultan hanging who 85 passed proper test conducted by the screening committee for his promotion to the PCCF grade long back and when there is no allegation against him about job satisfaction etc., the refusal to pass placement order posting Sri Sultan who at the material time was hanging in limbo, though holder of PCCF grade, has caused suffering and injury of his service career, seniormost IFS officer. The action of the State Government degraded the moral of said forest officer. In the case E. P. Roppya (supra), Apex Court has taken care of that factor and accordingly have passed a comment that there should not be any promotion to a cadre officer in an ex-cadre post and fair procedure on placement/posting should be followed to boost the moral of honest officer, by proper placement.
In the note of Joint Secretary dated 19th March, 2007 as placed for decision of Chief Minister and the MIC, Forest Department, specifically it was endorsed seeking decision about change of posting of three IFS Officers in the grade of Principal Chief Conservator of Forest, namely of Sri Sultan, Sri Mondal and Sri Bist and also for their decision to consider who would be the next Principal Chief Conservator of Forest, West Bengal, with effect from 31st March, 2007, afternoon.
The decision of concerned Ministry of the State and the Chief Minister making endorsement that "posting of three other IFS officer may remain unchanged", is nothing but an action which is unfair, unreasonable, arbitrary and also a discriminatory in nature for the sole reason that seniormost IFS officer Sri Sultan, though was kept in a non-existent ex-cadre post at the material time but his placement and posting to the vacant post of PCCF, West Bengal for which 86 note sheet was sent with positive endorsement about choice of change of posting was not considered. It is true that placement of any officer is within the domain of discretionary power of the executive head of the Government but that does not mean that discretion of the State will be un-fettered and absolute discretion.
Reliance is placed to the judgement passed in the case Akhil Bharati Upobhokta Congress vs. State of M. P & Ors. reported in (2011) 5 SCC 29 wherein the Apex Court in paragraphs 47, 48 and 50 of the said report considered the issue about function of the State in the matter of exercise of their discretionary power and their duty and responsibility, on relying earlier cases, though those were in the filed of contractual domain namely R. D. Shetty vs. International Airport Authority of India reported in 91949) 3 SCC 459 Pad Field vs. Ministry of Agricultural Fisheries & Forest reported in (1968) 1 All England Report 694, Jai Singhani Bhanu vs. Union of India reported in AIR 1967 SC 1427 Erusian Equipment & Chemical Ltd. vs. State of West Bengal reported in (1975) 1 SCC 70, Kashurilal Lakhan Reddy vs. State of Jammu & Kashmir reported in (1980) 4 SCC 1 Common Causes (Petrol Pump) vs. Union of India reported in (1996) 6 SCC 530 and cases of other field, Shrilekha Vidyarthi vs. State of U. P reported in (1991) 1 SCC 212 LIC vs. Consumer Education & Research Centre reported in (1995) 5 SCC 482, but those are applicable squarely while considering the issue of judicial review relating to any action of the State exercising discretionary power in service matter. In the instant case, the unfair, unreasonable, arbitrary and discretionary action meted out regarding placement of Sri Sultan, one senior most IFS officer, despite his promotion in the grade of PCCF, by denying his 87 placement thrice since his promotion in the grade of PCCF. First time the State Government exercising discretionary power in the Ministry level which was approved by Governor of the State, by placing a berth to one Sri Mondal, a junior IFS Officer, second time, Sri Bist another junior officer and third time to Sri Raha a junior most officer. Had it been a case that the concern officer Sri Sultan was incompetent or ineligible, the question would have been different. There is no whisper that Sri Sultan was not eligible for his placement in the cadre post. Once Sri Sultan was selected by the screening committee considering his merit and eligibility for his promotion to PCCF grade, placement of cadre officer Sri Sultan was required to be done in a cadre post and not in a temporary created ex-cadre post for one year and thereafter when the post died naturally due to non-
approval of Central Government, to keep his fate hanging. It is a constitutional mandate that in each and every sphere of governmental action fairness and reasonableness principle to be followed including the action of discretionary field under service jurisprudence. The said principle has now got a deep root in the constitutional field as tools to have judicial review of any action of authority under Article 12 of Constitution of India having public law element. Acting fairly is additional weapon in the armoury of the Court and a new horizon has been opened in the administrative law. Reliance is placed to the judgement passed in the case Maneka Gandhi vs. Union of India reported in AIR 1978 SC 597, a judgement of Constitution Bench where it is held that unreasonable exercise of power violates Article 14, 19 and 21. In E. P. Royappa (supra) said principle has been applied by the Apex Court in that angle while dealing with the identical case 88 of placement of cadre officer in a non-cadre post, Mahindra Singh Gill vs. Chief Election Commissioner, New Delhi & Ors. reported in (1978) 1 SCC 405, judgement of Constitution bench, M/s. M. S. Nally Bharat Engineering Co. Ltd. vs. State of Bihar & Ors., reported in (1990) 2 SCC 48, where principle on acting fairly was applied in a case of transfer of case of a workman from one labour Court to another without notice to the employer. In Dev Dutt vs. Union of India reported in (2008) 8 SCC 725 depth of judicial scrutiny and its intensity for the purpose of judicial review of the governmental action considered in the angle of Article 14 of Constitution of India. When a case of discretionary action is pleaded and proved, by factual matrix, the Court of law using tools under Article 14 of the Constitution of India, will decide relief of the petitioner by taking responsibility as primary authority. Whereas when a case is made out on arbitrary action under Article 14 of the Constitution of India, the depth of intensity and scrutiny of judicial review could be considered in secondary level for the purpose of quashing the impugned action only. In these case, Sri Sultan pleaded and proved arbitrary and discretionary action both, hence under anvil of Article 14 of the Constitution of India, Court will be justified to grant proper relief not only by quashing the impugned action but also proper relief regarding placement of said officer in cadre post for ends of justice. Sri Sultan has filed an application under Article 227 of the Constitution of India, whose adjudicatory contour and relief grant filed, for passing appropriate relief on considering law and equity, is very wide. 89
The writ petitioner urged the point of malice in law before the learned Tribunal below attacking the action of State Government to place him in an ex- cadre post and thereby to keep his fate hanging without placement to the cadre post. It appears from the records that since the promotion of Sri Sultan in the PCCF rank, despite being senior most IFS officer than other three officers who are party respondents in the writ application namely Sri Mondal, Sri Bist and Sri Raha, he was side-tracked from the cadre post but junior most officer Sri Raha was brought in the cadre post and thereafter to the Apex scale of PCCF. The chain of action surfaced regarding elevation of Sri Raha from additional PCCF rank to the rank of PCCF and thereafter to apex scale, leads a positive conclusion by Court about favouritism by Ministry level where fairness, reasonableness, unarbitrary and non-discretionary treatment, were breached and thus breach of Article 14, 16 and 21 of Constitution of India.
There is difference in malice in law and malice in fact. A nice discussion has been made by the Apex Court in that field in the case State of Andhra Pradesh vs. Goverdhanlal Pitti reported in (2003) 4 SCC 739 at page 744 in paragraph 12 and 13 which read such:
"12. The legal meaning of malice is "ill-work or spite towards a part and any indirect or improper motive in taking an action". This is some times describe as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others". (See Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989.) 90
13. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all it is malice in legal sense, it can be described as an act, which is taken with an oblique or indirect object. Prof. Wade in his authoritative work on Administrative Law (8th Edn., at p. 414) based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State can be described mala fide if it seeks to ""acquire land" "for a purpose not authorised by the Act". The State, if it wishes to acquire land, should exercise its power bona fide for the statutory purpose and for none other."
The issue was considered again in the case Kalabharati Advertising vs. Hemant Vimalnath Narichania, reported in (2010) 9 SCC 437 at page 25.
A State within Article 12 of the Constitution must act fairly and bonafide. Legal malice, on the part of the State, as attributed to it, should be understood to impose that action of the State is not taken bonafide. In a land acquisition case, Goverdhanlal Pitti (supra) Apex Court applied the principle 'malice in law' qua action malafide. Sometime if the action is taken with political motive it is characterised as malafide action and hence vitiated. This point has been considered and discussed in the case C.S. Rawjee vs. State of A.P reported in AIR 1964 SC 962. In the instant case placement of a cadre officer Sri Sultan when was required to be done in a cadre post, due to his promotion to PCCF grade, has been denied on breach of the circular letters of the Government, Cadre Rules, pay rules etc. In the case Robert vs. Hopwood reported in 1925 AC 578 Lord Wrenbury said "a discretion does not empower a man to do what he likes merely because he 91 is mandated to do so, he must in exercise of his discretion do not what he likes, but what he ought. In other words, he must by the use of his reason ascertain and follow the course which reason dictates". Discretion is always coupled with duty and; it cannot be used to circumvent obligation reposed under the law or contract governing the parties, is the view expressed in the case Siddeshwar Sahakari Sakhar Karkhana Ltd. vs. Commission of Income Tax, Kolhapur & Ors. reported in (2004) 12 SCC 1 para 31. In the instant case exercise of discretionary power relating to placement of a cadre officer in a cadre post who is a senior most officer has not been exercised by taking note of duties cast upon the State on considering his rights under the IFS cadre rules and the Government circular letters as earlier discussed which mandates that a cadre officer must be posted in a cadre post and in the instant case cadre officer taking the risk of repeatation was posted temporarily for one year in an ex-cadre post and thereafter without any post.
Rule of law demands to achieve real democracy that public officer should receive fair and reasonable treatment from executive wing of Government, otherwise rule of law and democracy both will perish. The norms and procedure and exercise of power in the angle of fairness principle has been dealt with in E. P. Royappa(supra) by the Apex Court, a judgement of Constitution Bench.
Since the injustice has been done and Sri Sultan the petitioner before us protested the entry of Sri Raha in PCCF grade and selection to apex scale by 92 amending original application with proper prayer, it is a fit case to grant proper relief by way of placement of Sri M. A. Sultan the writ petitioner in the post of Principal Chief Conservator of Forest, West Bengal with effect from 31st March, 2007 after completion of the tenure of Sri Gayen in the afternoon of the said date. It is declared accordingly that Sri M. A. Sultan became holder of the post of Principal Chief Conservator of Forest, West Bengal, a cadre post, with effect from 31st March, 2007 after Sri Gayen retired on superannuation with effect from 31st March, 2007 afternoon. The refusal to post him and the note to that effect with endorsement "posting of three other IFS officer may remain un-changed", as it appears from the note sheet, as quoted above, stand quashed and set aside.
Having regard to the breach of Article 14, 16 & 21 of the Constitution of India due to arbitrary and discriminatory action as well as unfair and unreasonable treatment to deal with the placement issue of Sri Sultan, I have already quashed the placement decision refusing to place Sri Sultan in the cadre post of PCCF, West Bengal. This Court would be justified to consider placement issue of Sri Sultan in cadre post. Court is not unmindful of the legal position that Court law should not exercise the power of administrative body regarding the action as is required to be done by the said body. The Court will issue writ of mandamus directing the administrative body to deal with the issue in terms of its findings and observation and seldom will venture to take action which otherwise ought to have been taken by the administration. Despite those legal proposition, we have declared the placement issue to render complete justice, having regard 93 to the special facts and circumstances of the case. There are certain situation where writ Court may pass appropriate order directing authorities to act, namely, when a statutory authority has the discretion in the matter, the writ Court can issue necessary direction when condition thereof are satisfied. Reliance is placed to the judgement passed in the case Air India Statutory Corporation & Ors. vs. United Labour Union & Ors. reported in AIR 1997 SC 645, Comptroller & Auditor General of India, Gain Prakash, New Delhi vs. K. S. Jagannathan & Ors. reported in AIR 1987 SC 537, Union of India & Ors. vs. Subir Mukherjee & Ors. reported in AIR 1998 SC 2247, Gujarat Electricity Board vs. Hind Mazdoor Sabha & Ors. reported in AIR 1995 SC 1893, H. C. Trehan & Ors. Vs. Union of India & Ors. reported in (1989) 1 SCC 764, a judgement of three Judges Bench, K. I. Shephard & Ors. vs. Union of India & Ors. reported in (1987 ) 4 SCC 431.
Having regard to those principle of law, and due to higher degree of injustice committed upon Sri Sultan by which his service career has been seriously injured, without directing the administrative body to consider his placement in the cadre post, the Court has passed the direction directly declaring the placement issue, exercising power under Article 226 and Article 227 of the Constitution of India.
Having regard to the Cadre Rules, Pay Rules and the circular letters and regulation as already quoted above, for ends of justice, this Court will presume the placement of respective candidates in the following manner in view of the fact 94 that the ex-cadre post as created wherein Sri Sultan was posted breathed natural death after one year with effect from 29th December, 2005 as the Central Government did not approve extension of said post for two years further. As the post PCCF(R&M) was created for one year with effect from 29th December, 2005 and Central Government did not approve further extension of two years, after one year period lapsed, with effect from 29th December, 2006 the position of Sri Sultan was holder of rank PCCF without any post. It is a settled legal position of service jurisprudence that there cannot be any placement by new appointment or by promotion without a post. As already discussed that on 31st December, 2005, the case of Sri Sultan, a senior most IFS officer, was considered for promotional berth to the grade of PCCF and he was selected and promoted; to rescue him from the condition of his working without any post after 28th December, 2006, a pitiable situation, the Court will presume that his initial promotional appointment in the rank of PCCF was in a cadre post as was lying vacant, namely PCCF (Wildlife) and there from he was transferred to hold the ex-cadre post created for one year and after lapse of said one year, he automatically was transferred to cadre post of PCCF and continued to hold this post, till his placement further to another newly created ex-cadre post of PCCF(RM&D) with effect from 26th December, 2008 as officiating arrangement when it was created by the State Government. Rule 4(2) of the Cadre Rules subsequently was amended by amending the second proviso to this effect that the State Government was entitled to create an ex-cadre post for a period of 2 years and with approval of Central Government may extend it for a further period of 3 years 95 from the date of expiry of tenure of said two years. Admittedly, after lapse of two years from the date of creation of another ex-cadre post PCCF (RM&D) effective from 26th December, 2008, no approval was accorded by the Central Government for extension of tenure of said post for a further period of 3 years on expiry of tenure of two years. As such with effect from 25th December, 2010, there was no existence of any ex-cadre post PCCF(RM&D) and it will be deemed that writ petitioner Sri Sultan was shifted/placed automatically to one cadre post out of two cadre posts of PCCF. As a corollary of said situation as discussed, the selection of Sri Raha in the rank of PCCF on 31st March, 2007 and posting him in the cadre post of PCCF, West Bengal, was per se illegal and same was in breach of DOPT Circular No.2001/4/92-AIS(2) dated 7th May, 2001 which provides that promotion to a grade cannot be made unless there is a permanent vacancy by cadre notification. As discussed above that Sri Sultan was holding a cadre post PCCF, West Bengal in the manner aforesaid as on 31st march, 2007, as such there was no permanent vacancy in the cadre post when Sri Raha was selected. It is settled law that promotion must be in a vacant post. Hence, there was no scope to promote Sri Raha, on 31st March, 2007.
Learned Tribunal below though held that there was illegality and arbitrary action by the State Respondent to deal with promotional matter of Sri Sultan by placing him in an ex-cadre post, existence of which came to an end, but did not grant any relief save and except a direction for encadering the ex-cadre posts 96 within the cadre strength by Central Government by determination of cadre strength as per terms provided in the cadre Rules.
Encadering of any post requires an in-depth scrutiny and analysis of need of the organisation and existence of and viability of post, on taking note of financial involvement and others, where Court of law, will not venture to pass such a direction for en-cadering. This issue about en-cadering has been considered by the Apex Court in the case Tamil Nadu Administrative Service Officers Association & Anr. vs. Union of India & Ors. reported in AIR 2000 SC 1898 wherein it is held that en-cadering of the post is the policy matter of the Government and Court should not direct. The relevant portion of the said judgement read such:-
"16. A perusal of the petition allegations does show that a number of posts outside the IAS cadre in the State concerned are in existence which are being manned by IAS Officers. Continuous existence of these posts over the decades shows that these posts are of permanent in nature, but the pertinent questions for consideration is whether merely because the State Government has created some posts and continued them over the years by posting regular IAS officers, can a Court issue a mandamus to the Central Government to encadre these posts?
17. If one looks into the object of creating an all India service, it is clear that this service was created to select exceptionally bright and intelligent men/women through all india examinations and train them to handle the affairs of the States by manning important posts in the administration of 97 the State. These persons are not to be posted to any and every posts in the Government. They are to man only such posts which have been identified to be so important as to require the services of these persons. With this view in mind, the Central Government was entrusted with the responsibility of identifying such posts and to encadre them in the IAS cadre. A perusal of the Cadre Rules and Regulations shows that the Central Government has identified posts like that of the Collectors, Commissioners, Members of the Board of Revenue, Secretaries and Deputy Secretaries in the administrative department and Heads of important Departments. It is the attitude of the State Governments of creating ex- cadre/temporary posts without consulting the Central Government and contrary to the Cadre Rules which has created the controversy in hand and has given rise to heart-burn and disappointment to the State civil servant. This however does not, in our opinion, confer any right on the petitioners to seek a mandamus for encadering those ex-cadre/temporary posts, for any such mandamus would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength. The basis of the petitioners' right to be selected for All India service is traceable in case of State Civil Service officers to Rule 8 of the Recruitment Rules which says that the Central Government may recruit to the IAS persons by promotion from amongst the members of the State civil service. This Rule itself puts a ceiling on the number of posts that could be filled in the IAS from such promotions which is limited to not more than 33 1/3% of the posts enumerated therein. The prayer of the petitioners for encadrement of the ex-cadre/temporary posts in reality amounts to asking the Central Government to create more posts. The question then arises whether there is any such right in the petitioners to seek such creation of additional posts. It is a well-settled principle in service jurisprudence that even when there is a vacancy, the State is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such posts be filled up. This is because the decision to fill up a 98 vacancy or not vests with the employer who for good reasons; be it administrative, economical or policy, decide not to fill up such post(s). See State of Haryana v. Subhash Chander Marwah, (1974) 3 SCC 220: (AIR) 1973 SC 2216 : 1973 Lab IC 1212). This principle applies with all the more force in regard to the creation of new vacancies like by candrement of new posts; more so when such encadrement or creation of new posts is statutorily controlled. We have noticed earlier that the Cadre Regulations and the Recruitment Rules require the Central Government to follow a particular procedure and make necessary consultations before fixing or re- fixing the cadre strength. In such a situation, issuance of a mandamus to increase the cadre strength or to encadre a particular post merely on the basis of long existence of these posts would be inappropriate.
21. However, we must observe on facts that the above-cited judgements of Singla's case (AIR 1984 SC 1595: 1984 Lab IC 1659) (supra) give an indication that if any temporary posts are in existence for a long time then such posts may have to be treated as permanent posts but then these observations will have to be taken into consideration in the background of the statutory rules applicable to the present case. We have already noticed in this case that the Statute applicable mandates the Central Government to fix the cadre strength in consultation with the State Governments concerned, duly bearing in mind the objects of the Act and the Rules and Regulations. The Central Government in its counter has stated that it has conducted this exercise during the periodic review and wherever necessary, temporary and ex-cadre posts created by the State Governments have been encadred, however, few they may be. They have also specifically contended that each and every ex-cadre and temporary post created by the State Government is not necessarily required to be encadred in the IAS. On behalf of the Union of India, reliance was placed on the various Rules and Regulations to which reference has already been made by us.99
22. Learned counsel for the Union of India relied on the following judgement of this Court in the case of Subhash Chander Marwaha's case (AIR 1973 SC 2216: 1973 Lab IC 1212) (supra) and Shankarsan Dash v. Union of India, (1991) 3 SCC 47: (1991 AIR SCW 1583: AIR 1991 SC 1612:
1991 Lab IC 1460) to support its contention that the petitioners do not have a right to seek encadrement of the posts. We respectfully agree with the ratio laid down in the above cases. However, we think it appropriate to notice a passage from the judgement of this Court in Shankarsan Dash's case (supra) at para 7 which is as follows:
"However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test and no discrimination can be permitted.""
Having regard to such position of law, the impugned order whereby learned Tribunal directed the Central Government to en-cader the ex-cadre posts and thereby to regularise the issue, being contrary to the legal position, stand set aside and quashed.
On basis of findings and observation, we hold that Sri Sultan was promoted in the rank of PCCF with effect from 1st January, 2006 and posted in a cadre post of PCCF as was lying vacant namely PCCF(Wildlife) and immediately on that moment he was transferred to an ex-cadre post of PCCF(R&M) and thereafter became holder of cadre post PCCF, West Bengal w.e.f 1st April, 2007 when this post became vacant due to retirement of Sri Gayen, on his transfer from ex-cadre post. Promotion of Sri Raha on 31st March, 2007 in cadre post of 100 PCCF, West Bengal, stand set aside and quashed and he would be deemed as ad- hoc appointee in PCCF grade holding substantive post of lower rank of Additional PCCF, till a suitable vacancy is available in a cadre post of PCCF to adjust him in that vacancy. However, State Government will be at liberty with consent of Sri Raha, to place him in any ex-cadre post of PCCF, in accordance with law.
In terms of IFS (Pay) Second Amendment Rules, 2008 notified on 22nd September, 2008 State Government upgraded the post of PCCF, West Bengal, a cadre post, in the apex scale of PCCF, being a post of PCCF (Head of Forest Force) at a pay scale of Rs.80,000/- fixed.
Now the question to be considered about selection of a candidate being holder of cadre post of PCCF to the apex scale as notified by notification dated 27th December, 2008. In terms of said notification under Note-2 it is provided as follows:-
"The post of Principal Chief Conservator of Forest in the apex scale shall be filled by selection from amongst the officers holding the post of Principal Chief Conservator in the State cadre in the HAG+ scale of Rs. 75500- (annual increment @ 3%) - 80000."
On bare reading of the said notification, it appears that selection of any officer in the apex scale could be made by selection on merit from the officers holding the post of Principal Chief Conservator of Forest in the "State cadre". Since in the "State cadre" there is only two cadre posts of PCCF, selection of an 101 officer in the said apex scale should be made from the officers namely Sri Sultan and Sri Bist who are holding post in State cadre in terms of this judgement, following the procedure laid down in the said notification.
It has been brought to our notice by the State Government that in terms of judgement of learned Tribunal below, selection process has been completed de- novo wherein Sri Raha again was selected for apex scale and now he is working in that upgraded post. This statement of the State Government about promotion of Sri Raha in the apex scale of PCCF at post judgement stage is not legally acceptable having regard to the order passed by the learned Tribunal. Learned Tribunal below passed following orders/directions in para 44 of judgement:-
i) The State respondents are directed to review the promotions given to the applicant and others, to the cadre of PCCF , in consultation with the Central Govt. i.e. cadre controlling authority and readjust to ensure that all such promotions are made only against cadre posts, without, however, affecting the right of any as all of them were regularly promoted to the said post. For the purpose, if necessary, temporary inclusion or non-cadre post in the cadre post in the cadre schedule may be made under the rules in consultation with the Central govt. and with their concurrence.
ii) The Central Govt. be moved for reconstitution of the Special Committee for first selection to the apex scale of PCCF by inducting and/or co-
opting officers of equivalent grade holding apex scale from the Central Govt. or otherwise and complete the selection process after obtaining necessary clarifications/instructions from the Central Govt. in the light of the observations made above within 4 months from the date of 102 communication of this order. For the purpose the promotion order dt. 31.8.09 is set aside.
iii) Till then the State respondents will be at liberty to make officiating arrangement in the post of PCCF, Apex Scale temporarily for limited period to manage the day to day administration strictly in terms of DOPT circular dt. 7th May 2001 referred to in para 27 above with the clear understanding that such appointee shall have no right to claim the post on regular basis.
iv) No cost.
Hence, it appears that to comply with the direction under paragraph 44(ii) about selection of one candidate in the apex scale of PCCF was dependent upon on finality of the direction passed under clause (I) of the order whereby Tribunal directed to encadre the post of Sri Sultan and another by the Central Government. Clause (ii) of the order of the Tribunal postulates that after encadering the posts of ex-cadre post in the State cadre of PCCF the selection process for selection of a candidate in apex scale of PCCF grade on merit would follow, following the instruction of the Central Government, within four months from the date of communication of the order.
Admittedly, Central Government has not passed any decision encadering the ex-cadre posts created by the State Government and as such there was no question to follow the selection process denovo whereby allegedly Sri Raha was selected by forming a new selection committee. From the records as produced, it appears that for second time also while selecting Sri Raha, names of two 103 candidates alleged holder of cadre posts and two candidates holder of alleged ex- cadre posts, in total four, were considered. Since there was no encadering of ex- cadre posts, subsequent selection of Sri Raha was not legally sustainable due to breach of order passed by learned Tribunal, assailed herein, and accordingly subsequent appointment of Sri Raha in the apex scale of PCCF is not legally sustainable and same stand set and quashed. It is settled law that any decision or order in violation of the Court's order is illegal and Court will set the wrong right. Reliance is placed to the judgement passed in the case DDA vs. Skipper Construction Company (Pvt.) Ltd. reported in (1996) 4 SCC 622: AIR 1996 SC 2005, Krishna Kumar Khemka vs. Grindlays Bank P.L.C reported in (1990) 3 SCC 669 (pp 681-682), Clarke V. Chandbmin reported in 1985 (1) All England Reporter 211 at page 215. In the instant case there was no stay of the impugned judgement and order of learned Tribunal below in this writ application. As such, the order of the Tribunal remains binding upon the State respondent and its officers. The selection process to select a candidate in the apex scale of PCCF and selection of Sri Raha during pendency of the writ application was in breach of the order of the Tribunal due to reason as earlier discussed particularly for the reason that Central Government did not encader the ex-cadre posts to re-adjust the posting made to the officers in ex-cadre posts, in terms of Clause 1 of paragraph 44 of the judgement passed by the learned Tribunal. As such, Sri Raha did not accrue any right due to such selection process. 104
The aforesaid findings is arrived at on reading the file No.FR/O/G/4E- 12/08 as has been produced by the State Government regarding creation of one post of PCCF at apex grade of Rs.80,000/- fixed per month by upgrading one existing cadre post of PCCF. The decision to upgrade post of PCCF, West Bengal, a cadre post, was taken on 12th November, 2008 by approval of the competent authority. At pre-judgement stage of Tribunal application, selection process completed selecting Sri Raha in such apex sale who was at that time was holding the post of PCCF, West Bengal and he was appointed in apex scale of PCCF. This selection and appointment was quashed and set aside by the learned Tribunal below, by impugned judgement in this writ application. There was no stay passed by the High Court staying effect of impugned order of the Tribunal. The Central Government did not encader said two ex-cadre posts as per order of tribunal. During pendency of the hearing of this writ application, State Government formed another special selection committee, who on 5th April, 2010, considered the cases of all officers holding the post of PCCF namely the cases of four officers Sri Sultan, Sri Mondal, Sri Bist and Sri Raha and recommended name of Sri Raha for selection to the post of PCCF(Head of forest force) in apex scale. The selection committee considered the cases of cadre post holders as well as ex- cadre post holder which was not permissible under the rule of selection which provides that only the cases of candidates holding the post of PCCF in the State cadre could be considered. Admittedly ex-cadre post holders were not the persons holding the post in the State cadre. As such selection procedure was vitiated and it is not legally sustainable.
105
The letter dated 7th April, 2010 of Joint Secretary to the Government of West Bengal and posting order of Sri Raha, from the said file read such:-
" Government of West Bengal
Forest Department
Writers' Buildings, Kolkata-700 001
No.1515-For/4E-12/08 Date: 7.4.2010
From : Smt. Shila Nag, IAS
Joint Secretary to the Govt. of West Bengal
To : Sri Bikash Ranjan Bhattacharya,
Learned Special Prosecutor
Ref. : Appeal case WPCT No.20 of 2010
Sir,
I am directed to inform you that, in pursuance of the order issued by the Hon'ble CAT in OA No.1235 of 2008 dtd. 27.11.2009, we requested the Govt. of India, MoEF to re-constitute the Special Selection Committee for preparing Fit List for the post of PCCF(Head of forest force) in apex scale. The MOEF vide its letter No.18062/7/2009-IFS-II dtd. 26.3.2010 (copy enclosed) empowered the Special Selection Committee to co-opt any other Officer of the State Govt. of equivalent grade of Apex Scale in case of 1st selection of PCCF(Apex scale ) of this State and nominated PCCF(Apex Scale), Bihar for attending the said meeting.
The Special Selection Committee in its meeting held on 5.4.2010, considered the cases of all the officers holding the post of Principal Chief Conservator of Forests in the State Cadre in the HAG+scale of Rs.75,500- 80,000/- viz. Shri M. A. Sultan, IFS, Shri S. B. Mandal, IFS, Shri S.S. Bist, IFS and Shri A. K. Raha, IFS for selection to the post of PCCF(Apex scale) and recommendd the name of Shri A. K. Raha, IFS for selection to the post of PCCF(head of forest frce) in Apex Scale (copy of minutes of the DPC meeting is enclosed for ready reference.) On the basis of the recommendation of the Special Selection Committee, the State Govt. has appointed Shri A. K. Raha, IFS to the post of PCCF(Head of Forest Force) in apex scale of Rs.80,000(fixed), Grade Pay- 106 Nil in the West Bengal Cadre of IFS vide this Deptt's Notification No.1486- For/4E-12/08 dtd. 6.4.2010(copy enclosed).
This is for your kind information and taking further necessary action in this regard.
Yours faithfully, (S. Nag) Joint Secretary to the Govt. of West Bengal "
Sri Raha on 6th April, 2010 assumed charge of PCCF (head of forest force, West Bengal) being appointed by the order of the Governor, issued on 6th April, 2010. The order of the Governor read such:-
" Government of West Bengal
Forest Department
Writers' Buildings, Kolkata-700 001
Notification
No.1486-For/4E-12/08 Date: 6.4.2010
The Governor is pleased to appoint Sri Atanu Kumar Raha, IFS, now posted as Principal Chief Conservator of Forests, West Bengal to the post of Principal Chief Conservator of Forests(Head of Forest Force), West Bengal in the Apex Scale of Rs.80,000/-(fixed), Grade Pay-Nil, created vide this Department's notification No.2975-For/4E-12/08 dtd. 31.7.2009, until further orders and with effect from the date of his assuming charges.
By the order of the Governor Sd/-
(S. Nag) Joint Secretary to the Govt. of West Bengal"
As discussed above, Sri Raha since at the present moment in view of our judgment, is not entitled to hold cadre post of PCCF, and his appointment stand 107 cancelled forthwith, his selection to the apex scale of PCCF and appointment on 6.4.2010, also stand set aside and quashed and he is directed to vacate the post forthwith. The State respondent and its officers are directed to issue placement letter within two weeks placing Sri Sultan in the post of PCCF, West Bengal with effect from 1st day of April, 2007 and to select one amongst two cadre officers of PCCF rank/grade namely Sri Sultan and Sri Bist, on merit, for placement to the apex scale, in terms of guidelines and notification of selection as referred to above, within four months from this date. Till such selection is made to the upgraded post in apex scale, Sri Sultan, a senior most officer, will officiate temporarily in apex scale of PCCF by Court's order without claiming any equity. State respondents are directed to issue respective orders, by complying with this judgement.
Let a copy of this judgement be delivered to the Chief Secretary, Government of West Bengal for his action as per judgement, by the High Court Registry forthwith. All concerned officers of State Government and State Government, are directed to comply with this judgement and order by taking respective steps as required to implement this judgement. A compliance report be submitted to the High Court registry within six months from this date. Impugned order of the tribunal is set aside and quashed.
108
The application under Article 227 filed by Sri Sultan accordingly is allowed to that extent as ordered and writ application of the State respondent stand partly allowed on en-cadering point and dismissed in other points.
( Pratap Kumar Ray, J.) I agree, (Harish Tandon, J.) LATER:
Learned advocate for the State respondents and learned advocate appearing for Mr. Raha both prayed for stay of operation of the order for a limited period so that they can test the judgement in the Apex Court. They have prayed for one month's stay.
Learned advocate Mr. Samanta is appearing for Mr. Sultan has opposed the prayer. It is his contention that Shri Raha was placed in the apex scale of PCCF, Head of Forest, during existence of judgement and order passed by the learned Tribunal below which was not stayed by the High Court while hearing the writ applications and such selection was made on breach of the order of the learned Tribunal, which has been discussed in detail by this Court in judgement.
As such, stay of order as prayed for should be refused.109
However, having regard to the prayer made by the learned advocates on behalf of Mr. Raha and the State of West Bengal, we are of the view that to test the judgement and order passed by us today to the Apex Court there should be stay of the judgement and order for a limited period till 18th July, 2011, for ends of justice.
It is ordered accordingly.
Let xerox certified copy of this order, if applied for, be given to the learned advocates appearing for the parties expeditiously.
(Pratap Kumar Ray, J.) (Harish Tandon, J.)