Central Administrative Tribunal - Ernakulam
K Raju Thomas vs Forest And Environment on 2 September, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH,
ERNAKULAM
Original Application No. 180/00123/2022
Friday, this the 2nd day of September, 2022
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J)
Hon'ble Mr. K.V. Eapen, Member (A)
K. Raju Thomas, Aged 58 years, S/o. A.G. Koshy,
Retired Deputy Conservator of Forests (Non cadre),
Residing at Angadiyil, Kampammkodu, Vayakkal PO,
Valakam, Kottarakara, Kollam - 691 532,
Phone - 9447193171, email:
[email protected]. ..... Applicant
(By Advocates : Dr. K.P. Satheesan, Sr. with Mr. P. Mohanadas)
Versus
1. Union of India, represented by Secretary,
Ministry of Environment, Forests & Climate Change,
Indira Paryavaran Bhavan, 6th Floor, Prithvi Block,
Jor Bagh Road, Ali Ganj, New Delhi - 110 003.
2. The Union Public Service Commission, represented by its Secretary,
Shajahan Road, New Delhi - 110 069.
3. The Selection Committee for Selection to the Indian Forest
Service, constituted under Regulation of the IFS (appointment by
Promotion) Regulations, 1966, represented by its Chairman,
Union Public Service Commission, New Delhi - 110 069.
4. State of Kerala, represented by the Chief Secretary,
Government Secretariat, Thiruvananthapuram - 695 001.
5. The Principal Secretary to Government Forest and Wild Life
Department, Government Secretariat,
Thiruvananthapuram - 695 001.
6. The Principal Chief Conservator of Forests & Head of Forest
Force, Forest Headquarters, Vazhuthakkad,
Thiruvananthapuram - 695 023. ..... Respondents
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[By Advocates : Mr. Alfred Lionel Winston M., ACGSC (R1),
Mr. Thomas Mathew Nellimoottil, SCGC (R2&3) and
Mr. Baijuraj G., GP (R4-6)]
This Original Application having been heard on 24.08.2022, the
Tribunal on 02.09.2022 delivered the following:
ORDER
Per: Justice Sunil Thomas, Judicial Member -
The original applicant joined as Ranger in the Kerala Forest Service on 1.1.1985. Subsequently, he was promoted as Assistant Conservator of Forest and Deputy Conservator of Forest. The appointment to the post of Indian Forest Service is governed by Indian Forest Service (Appointment by Promotion) Regulation, 1966. Annexure A7 is the copy of the said regulation. While the applicant was continuing in service, he was included in the field of choice of promotion to IFS for the years 2013 and 2014. However, he was not considered for conferring IFS during the above period on three grounds, including that he was involved in a criminal case. Accordingly, the selection committee meeting held on 22.12.2016 declared the applicant as unfit for inclusion in the list of 2013 and 2014. While so, the criminal case in which the applicant stood as one of the accused ended in acquittal, by judgment dated 16.9.2021 in CC No. 961/2013 of Judicial First Class Magistrate Court-II (Forest Offences), Punalur. The applicant claims now that the three objections do not survive and he stands cleared. Accordingly, the applicant was included provisionally in the select list of 2015, 2016, 2017 and 2018. The select list of 2018 was produced as Annexure A2, wherein the applicant stand at serial No. 1. He was 3 provisionally included in the list, subject to the clearance in the criminal proceedings pending against him and grant of integrity certificate by the State Government.
2. On acquittal of the applicant in the criminal case, the 4th respondent by Annexure A3 communication dated 21.12.2021, addressed to the 2nd respondent informed about his acquittal and requested to declare the provisional inclusion of the applicant in the select list of 2018, as unconditional and final. The integrity certificate was also enclosed. In the light of the above, matter was placed before the UPSC, which, after considering the entire aspects decided to include the name of the applicant as serial No. 1 in the selection list of 2018, prepared by the selection committee for promotion to IFS of Kerala cadre, as unconditional and final. By Annexure A4 communication dated 12.1.2022, this was conveyed to first respondent. Pursuant to above, by Annexure A5 the 1st respondent required the 5th respondent to forward necessary proposals for promotion of the applicant to IFS, along with five documents which were required. All the requisite documents were forwarded to the first respondent by Annexure A6.
3. The grievance of the applicant is that though inclusion of the applicant was stated to be unconditional and final, 1st respondent failed to pass appropriate orders pursuant thereto. According to the applicant, Regulation (9) of Annexure A7 mandates that appointment order shall be issued within 60 days after the name is made unconditional by the commission. Annexure 4 A8 representation dated 28.2.2022 was submitted to the 1st respondent, which was not replied. Aggrieved, the applicant has approached this Tribunal with a prayer to direct the 1st respondent to issue order of appointment of the applicant to the post of IFS, within Kerala cadre forthwith, as he has complied with all the conditions of the 1st respondent contained in Annexure A5.
4. The 1st respondent filed a detailed statement wherein, it was, inter alia, contended that the selection committee meeting for the preparation of the select list of the eligible officers for the period 2018 and 2019 was held on 24.6.2021 by the UPSC. The name of the applicant was considered and included in the select list of 2018 for promotion to IFS. Name of the applicant was included provisionally, subject to the clearance in criminal proceedings pending against him and grant of integrity certificate by the State Government. It was also stated by Annexure A4 that the UPSC has stated that the inclusion of the name of the applicant at serial No. 1 in the select list of 2018 prepared on 24.6.2021 for promotion to IFS may be treated as unconditional and final. Thereafter, by Annexure A5, State Government was requested to forward necessary proposal. According to the 1st respondent by virtue of Regulation 9(1) of the Regulations a member of State Forest Service may be appointed in to IFS. However, in the present case the applicant has already retired from State Forest Service on 31.7.2019. Since he is no longer a member of the State Forest Service he 5 cannot thus be appointed in to IFS even after his name was included in the select list.
5. Traversing the above contentions a detailed rejoinder was filed by the applicant wherein he referred to various orders in OA, wherein identical question was considered and consistently it was held that even if one officer has retired from the State Service at the age of 56 years, that will not stand in the way of promoting him to the IFS cadre provided he has not completed 60 years as on the period of reckoning. Several instances of judicial pronouncements in this regard were referred to in the rejoinder. It was asserted that this Tribunal had held that retirement from State Service cannot be taken as a ground for giving appointment to IFS, after including in the select list. It was also held that there was always a gap between the selection committee meeting and the year of eligibility of the applicant. The authorities always err on the side of delay and no responsibility can be attributed for the delay nor should applicant be expected to bear the adverse consequences of the delay.
6. Heard the learned senior counsel for the applicant and the learned ACGSC as well as the learned State Government Pleader.
7. Essential facts seems to be not in dispute. By Annexure A4 the Union Public Service Commission informed the 1st respondent that the Commission has decided to declare the inclusion of the name of the applicant at serial No. 6 1 in the select list of 2018 prepared by the select committee in its meeting held on 24.6.2021 for promotion to IFS Kerala cadre, as unconditional and final. Thereupon, by Annexure A5 communication while acknowledging the receipt of Annexure A4, the State Government was requested by the 1st respondent to forward five documents. In obedience to it, by Annexure A6 all the above five documents were forwarded. The 2nd proviso to Regulation 9 of Annexure A7 provides that an appointment of an officer whose name has been included or deemed to be included in the select list provisionally under proviso to sub-regulation (5) of regulation 5 or under the proviso to sub-regulation (3) of regulation 7 as the case may be, shall be made within sixty days after the name is made unconditional by the Commission in terms of the first proviso to sub-regulation (4) of regulation 7.
8. Evidently, by the above regulation, it was the mandatory duty of the 1st respondent to pass an order within sixty days from the date when the name was made unconditional by the Commission. The UPSC has declared that the inclusion of the name was unconditional and final. At that point of time the 1st respondent had not raised any objection that the applicant had retired by that time. Instead of that, five documents were sought. All the five documents were forwarded. Legally nothing stood in the way of the 1st respondent for invoking the provision under Regulation (9).
9. However, in the objection the 1st respondent has taken up a specific contention that the applicant has since retired and he is no longer a member 7 of the State Service, by virtue of Regulation 9(1) he cannot be appointed into IFS, even after his name was included in the select list of 2018.
10. The learned counsel for the applicant relied on several decisions of this Tribunal in which it was reiterated time and again that retirement of a member of the State Service who had retired cannot stand in the way of he being included in the IFS. The learned senior counsel relied on Annexure A9 order of this Tribunal in OA No. 180/968/2015 in which an identical situation arose. In that order it was held that there was always a gap between the select committee meeting and the year of eligibility of the applicant and the former always err on the side of delay. No responsibility can be attributed for the delay nor should the applicant be expected to bear the adverse consequences for the delay. It was ultimately held that the fact that the applicant had retired could not stand in the way of applicant being included in the IFS. The 1st respondent was directed to make fresh notification for appointment to IFS by including the name of the applicant within the stipulated time. This was reiterated by another order of this Tribunal in OA No. 180/520/2021. By a detailed order (to which one of us was a party) the above issue was again considered. Ultimately this Bench, reiterated the earlier conclusions in OA 744/2013 and connected cases and directed the 1st respondent to include the name of the applicant in the IPS.
11. To counter this contention, the learned ACGSC relied on a Single Member decision of the Ahmadabad Bench of the Central Administrative 8 Tribunal in M.M. Mehta v. Union of India dated 7th June, 2001 produced as Annexure R1, which was held a contra view. The learned ACGSC relying on the above decision vehemently contended that this Bench is bound by the earlier decision of the Ahmadabad Bench and the matter needs to be referred to a larger Bench in the light of the conflicting views of the Ahmadabad Bench and the Ernakulam Bench.
12. We find no divergence in the issue involved. It seems that the decision in M.M. Mehta was passed by a Single Bench though it may have a persuasive effect on this Bench, we are inclined to follow the consistent view taken by the Division Bench, as evidenced by Annexures A9 and A10. The view taken by this Bench consistently in Annexures A9 and A10 appears to be well reasoned and we are in complete concurrence with those orders. We find no reason to take a different view or to doubt the rationale of the above decisions and to refer the matter to a Larger Bench.
13. Though a feeble contention was taken up by the learned ACGSC that the applicant was involved in a criminal case and his acquittal was not an honourable acquittal, we are not inclined to accept that contention. The copy of the judgment in CC No. 961/2013, in which the applicant stood arrayed as accused No. 7 for offences punishable under Sections 365, 342, 387, 386, 323 and 120B read with Section 34 IPC was placed before us which shows that after a full fledged trial and examination of about 21 witnesses, the court below found that the case against the accused could not be established and 9 all of them were acquitted. The acquittal was on merit and not on benefit of doubt. Hence, the stigma in relation to the involvement to the criminal case, if any, stood erased.
14. In the light of the above, the Original Application is liable to be allowed. There will be a direction to the 1st respondent to pass appropriate order including the applicant in the select list of 2018 for promotion to the Indian Forest Service (Kerala cadre), as his inclusion in the select list is declared as unconditional and final by the 2nd respondent. This shall be done within a period of 30 days from the date of receipt of a copy of this order. The 1st respondent shall issue appointment order to the applicant as he has complied with all the conditions as directed by the 1st respondent in Annexure A5.
15. The Original Application is allowed. No costs.
(K.V. EAPEN) (JUSTICE SUNIL THOMAS)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA"
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Original Application No. 180/00123/2022
APPLICANT'S ANNEXURES
Annexure A1 - True copy of the Amendment brought to the Indian Forest
Service (Appointment by Promotion) Amendment
Regulation 2015 dated 17.3.2015.
Annexure A2 - True copy of the select list of the year 2018 issued by the
1st respondent as Order F. No. 17013/14/2020-IFS-II dated 25.8.2021.
Annexure A3 - True copy of the letter No. 200/AIS.c1/2019/GAD dated 21.12.2021 written by the 4th respondent to the 2nd respondent along with integrity certificate.
Annexure A4 - True copy of the letter No. 10/9/2020-AIS dated 12.1.2022 written by the 2nd respondent to the 1st respondent.
Annexure A5 - True copy of the letter F. No. 17013/14/2020-IFS-II dated 19.1.2022 written by the 1st respondent to the 5th respondent.
Annexure A6 - True copy of the letter No. AIS-C1/200/2019/GAD dated 29.1.2022 written by the 4th respondent to the 1st respondent along with the enclosures.
Annexure A7 - True copy of the Indian Forest Service (Appointment by Promotion) Regulations 1966 published by the Central Government.
Annexure A8 - True copy of the representation filed by the applicant before the 1st respondent dated 28.2.2022.
Annexure A9 - True copy of the order dated 27.1.2016 in OA No. 968/2015.
Annexure A10 - True copy of the order dated 18.3.2022 in OA No. 520/2021.
Annexure A11 - True copy of the order dated 6.6.2022 in OP (CAT) No. 32/2022.
Annexure A12 - True copy of the judgment dated 16.6.2022 in OP (CAT) No. 32/2022.
Annexure A13 - True copy of the notification published by Government of 11 India as File No. 17013/19/2015-IFS.II dated 14.2.2017. Annexure A14 - True copy of the common order dated 3.3.2017 in CMP No. 320/2011 in CC No. 336/2004, CMP NO. 321/2011 in CC No. 338/2004, CMP No. 322/2011 in CC No. 339/2004 and CMP No. 323/2011 in CC No. 369/2004 passed by the Chief Judicial Magistrate's Court, Devikulam.
Annexure A15 - True copy of the notification as file No. 17013/19/2015- IFS.II dated 28.8.2017 issued by the 1st respondent. RESPONDENTS' ANNEXURES Annexure R1 - True copy of Hon'ble Ahmedabad Bench dated 7.6.2001 in M.M. Mehta v. Union of India (UoI) and others.
Annexure R2 - True copy of the order of this Hon'ble Tribunal dated 6.4.2022 rejecting the interim relief sought by the applicant.
Annexure R3 - True copy of judgment of the Hon'ble Apex Court in Union of India and others v. Methu Meda CA No. 6238/2021 dated 6.10.2021.
Annexure R4 - True copy of judgment of the learned Judicial Magistrate-
II (Forest Offences) in CC No. 961/2013.
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