Uttarakhand High Court
WPSB/208/2018 on 22 December, 2022
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
THE HON'BLE SRI JUSTICE R.C. KHULBE
WRIT PETITION (S/B) NO. 208 OF 2018
BETWEEN:
Hari Ram Sharma .....Petitioner.
And
The Chief Administrative Officer, Indian Veterinary Research
Institute & others
....Respondents.
Mr. C.D. Bahuguna, learned Senior Counsel assisted by Mr. Ravindra S. Rawat, learned
counsel for the petitioner.
Mr. Ajay Singh Bisht, learned counsel for respondent nos.1 to 3.
Judgment Reserved on: 21.11.2022
Judgment Delivered on: 22.12.2022
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi) This writ petition has been preferred by the petitioner, to seek quashing of the order dated 20.02.2018 passed by the Central Administrative Tribunal, Circuit Bench, Nainital, whereby the Tribunal dismissed the Transfer/Original Application No. 331/0003 of 2017, preferred by the petitioner.
2. The brief facts of the case are that the petitioner was initially appointed on the post of S.S. Grade-I, Forest Guard, on 04.02.1989 in the pay scale of Rs. 750-12-870-EB- 14-490, by the order of Assistant Administrative Officer, Izzat 2 Nagar, Bareilly, Indian Veterinary Research Institute (I.V.R.I), which is one of the wings of Indian Council for Agricultural Research (ICAR), New Delhi. Thereafter, on 05.10.1995, the Petitioner was promoted to the post of S.S. Grade-II, Forest Guard by the order of the Director, I.V.R.I, Izzat Nagar, Bareilly. Subsequently, on 15.03.1997the Petitioner was promoted to the post of S.S. Grade-III, Forest Guard, by the order of Director of the Department.
3. The petitioner further states that on 11.11.2005, a notice was issued by the Assistant Administrative Officer, I.V.R.I., Izzat Nagar, Bareilly inviting the applications from Group 'D' staff of I.V.R.I to fill up the post of T-1 Grade (Forest Deputy Ranger). According, to the Petitioner, pursuant to the circular dated 11.11.2005, the Petitioner applied for promotion to the post of T-1 Grade, i.e. the post of Forest Deputy Ranger. The promotion for the same was to be made through Departmental Promotion Committee (for short "DPC") - respondent no. 3.
4. The Departmental Promotion Committee held its meeting on 18.11.2005 at I.V.R.I, Bareilly, for considering promotion of eligible candidates. Accordingly, DPC, selected the respondent no. 5- Shri Bhupendra Singh Parihar to the post of T-1 (Deputy Forest Ranger). The Assistant Administrative Officer, i.e. the respondent no. 2, vide order dated 22.03.2006, promoted Respondent 5 to the post of T-1. 3
5. The petitioner, being aggrieved by the order dated 22.03.2006, preferred Writ Petition No. 427 of 2006 (S/S) before this Court, and made a prayer for quashing the said order dated 22.03.2006, passed by the respondent no. 2. This Court, by order dated 28.03.2006, disposed of the Writ Petition with the following directions:
"However, liberty is given to the petitioner to move a fresh representation before the authorities concerned and if the petitioner is covered under the zone of consideration, the authorities concerned may pass appropriate orders considering the representation of the petitioner in accordance with the Rules.
Subject to the aforesaid, writ petition is finally disposed of. Order passed on 22nd March, 2006 by which the promotion has been made shall be subject to the final result of the representation to be filed by the petitioner."
6. The petitioner, accordingly, submitted his representation to the Director, I.V.R.I, Izzat Nagar, Bareilly on 18.04.2006, to request the cancellation of the earlier order dated 22.03.2006 and to promote the petitioner to the post of T-1 Grade. The abovementioned representation, was rejected by the Assistant Administrative Officer, I.V.R.I, Izzat Nagar, Bareilly by its order dated 16.05.2006, which reads as follows:
"His case was first considered by the duly constituted DPC for promotion to the said post. On going through his relevant records vis-à-vis qualifications, experience, work and conduct reports, etc. the DPC did not find him suitable for promotion to the post of T-1 (Deputy Ranger). Hence as per rules, the DPC considered the case of next candidate namely Shri B.S. Parihar, S.S. Grade II (Forest Guard) and when the committee was 4 satisfied with the qualification, experience, conduct and other relevant records, the name of Shri Parihar was recommended for promotion."
7. The petitioner, having been aggrieved by the orders dated 22.03.2006 and 16.05.2006, passed by the respondent no. 2, preferred Writ Petition (S/S)No. 972 of 2006 before this Court. During the pendency of the said writ petition, the Central Government issued a notification, under the provisions of the Administrative Tribunal Act, 1985, and thereby brought the service & posts under the Indian Council for Agricultural Research (ICAR), and Indian Veterinary Research Institute (I.V.R.I), within the ambit and purview of the Administrative Tribunal Act, 1985. Consequently, the aforesaid writ petition was transferred to the CAT.
8. Accordingly, the Central Administrative Tribunal, Circuit Bench at Nainital converted Writ Petition (S/S) No. 972 of 2006into Transfer Application/Original Application No. 331/0003 of 2017. The petitioner deleted Mr. Bhupendra Singh Parihar - respondent no. 5, who was working in T-4 Grade post after securing three more promotions, from the array of parties on 25.10.2017.
9. The petitioner relied on the fact of his seniority over respondent no. 5 before the Tribunal. According to his claim, at the time of consideration for promotion to T-1 Grade post, the petitioner was holding the post of Forest Guard S.S. 5 Grade-III, whereas Mr. Parihar (respondent no. 5) was working in lower grade, i.e. as a Forest Guard, Grade-II. Therefore, the petitioner was eligible for promotion to the post of T-1 Grade.
10. The petitioner further submitted before the Tribunal that in comparative assessment between the Petitioner and Respondent no. 5, the petitioner was working in Forest Line as Forest Guard for more than 17 years, whereas the respondent no. 5 joined forest line only in August, 2004, on changing of his designation from Mazdoor, by an order dated 04.08.2004. The petitioner is aggrieved by the fact, that these submissions were not considered by the learned Tribunal.
11. The petitioner states that, as per the circular dated 11.11.2005, whereby applications were invited, the required qualification for T-1 post was as follows:
"(A) Matric (B) Minimum one year Trade Certificate course in Forestry Or Post-metric experience of 5 years in Supporting Staff Grade in Forestry."
12. The petitioner pleads that the respondent no.5 did not possess any of the above stated qualification. Thus, respondent no. 5 was ineligible for the post of T-1 Grade.
13. The petitioner submits that the Tribunal wrongly recorded the submission of the petitioner that, as per Rule 6 7.1 of the Technical Services Rules of ICAR, the post of T-1 Grade cannot be filled up from the employees of Supporting Services Grade. According to the Rules, the post of T-1 Grade is to be filled up from the posts of Supporting Services Staff to the extent of 33.33%. He further submits that the finding that the Petitioner had set up his case for promotion on the basis of 'Seniority' alone, is wrongly recorded by the Tribunal. On the allegations of the past conduct/ performance of the petitioner; of habitual absence from the office, as per the letter dated 01.12.1995, the Petitioner relies on the second part of the letter, wherein the Administrative Officer admitted the fact that the petitioner applied for the leave, and the extension of the leave, had been forwarded with recommendations by the concerned officer. According to the petitioner, in contrast, the Tribunal recorded finding to the following effect:
"....... The records of service of the petitioner indicate that he had to be warned to improve his habits and not to repeat unauthorized absence in a certain backdrop. The DPC found no such instance of past misconduct in respect of other eligible candidates namely Shri B.S. Parihar who was the other candidate before the DPC for the post of T-I (Deputy Ranger)."
14. In this regard, the petitioner submits that the promotion exercise was initiated in the year 2005 and, therefore, there was no relevance of any alleged warning letter of the year 1995, i.e. 10 years back. Also, the application moved by the petitioner for extension of leave was 7 allowed by the competent authority, and no amount of his salary was ever withheld or deducted by the department for any alleged absence from duty for any period. Thus, the Tribunal, according to the petitioner, recorded an erroneous finding, to the effect, that the warning letter was adverse material for holding the petitioner unsuited for promotion to the post of T-I Grade.
15. In Paragraph No.8 of its judgment, the Tribunal observed as follows:
"8....... The Vigilance Officer Shri C.P. Thomas, submitted false and concocted report against the applicant before the DPC which was incorrect. For such irregular acts, applicant was terminated from the department before his retirement. Subsequently vide copy of the orders at Annexure-RA-2 of the rejoinder affidavit, it was stated that the petitioner was charge sheeted by Shri Thomas and based on inquiry report, he was exonerated by the Director."
16. The petitioner assails the above finding of the Tribunal. According to him, he was never terminated on any vigilance report, nor was Shri Thomas ever exonerated in any case. He submits that the Tribunal has mixed up the issue of termination/dismissal of Vigilance Officer-Mr. C.P. Thomas, with the exoneration of the petitioner from the allegations/charges contained in the Vigilance report dated 30.01.2006.
17. The petitioner further submits, that the plea taken by the respondent department in their counter affidavit, that 8 since a vigilance case was contemplated/pending against the petitioner as per the report of the Vigilance officer Mr. C.P. Thomas dated 30.01.2006, the DPC did not find the petitioner suitable for promotion to the post of T-I post shows the illegal approach of the Department. The fact of the matter is that on the date of DPC, i.e. 18.11.2005, neither vigilance report dated 30.06.2006 was in existence, nor was any vigilance inquiry pending against the petitioner. He submits that even if there had been any vigilance inquiry pending or initiated by an order of the competent authority, then the proper course for the Departmental Promotion Committee would have been to follow the 'sealed cover procedure', rather than to hold the petitioner ineligible for promotion on unproved allegations.
18. The petitioner submits that the Inquiry Officer, on conclusion of the inquiry, submitted a final inquiry report dated 24.01.2011 to the Director, I.V.R.I, Izzat Nagar, Bareilly, and reported therein that the charges levelled against the petitioner have not been proved. On the basis of the said inquiry, the Director exonerated the petitioner from all the charges framed against him by an order dated 07.02.2012. The Petitioner further submits that the then Vigilance Officer, who prepared the report against the Petitioner at first instance-Shri C.P. Thomas, was dismissed from the service prior to the date of his superannuation, on 9 some serious allegations vide order dated 28.04.2007, which was also reported in the newspaper.
19. On the basis of the seniority list of Supporting Services Grade-III issued on 01.04.2005 by the department, the petitioner submits that the name of the petitioner is shown at serial no. 126, and the name of respondent no. 5 is not shown anywhere. Thus, respondent no. 5 was not born in the cadre of SS Grade III till then. On the same date, another seniority list of SS Grade II was issued, in which the name of respondent no. 5 is shown as Forest Protector at serial no.
391.
20. The petitioner further submits that during the pendency of the writ petition, the petitioner was promoted to the post of T-1 Grade (Lab Technician) by an order dated 03.05.2014. The Petitioner now seeks consequential benefits for the post of T-1, w.e.f. 22.03.2006, when the respondent no. 5- Mr. Parihar was promoted to T-1 grade post. The prayers of the petitioner before this Court are as follows:
"I. Issue a writ, order or direction in the nature of Certiorari, summoning the records from the department and quashing the impugned order dated 20.02.2018 passed by the Central Administrative Tribunal, Circuit Bench at Nainital, contained in Annexure-1 to this petition.
II. Issue a writ, order or direction in the nature of Certiorari, summoning the records from the department, and quashing the order dated 16.05.2006, issued by the respondent no. 2, contained in Annexure- 8 to this petition.10
III. Issue a writ, order or direction in the nature of Mandamus commanding the respondent nos. 1 to 4 to promote the petitioner to the post of T-I Grade w.e.f. 22.03.2006, with all consequential benefits of service.
IV. Issue any other writ, order or direction to any of the respondents, as this Hon'ble Court may deem fit and proper, in the facts and circumstances of the case."
21. The objections were filed to the present petition by the Assistant Administrative Officer, ICAR, I.V.R.I. Campus, Mukteshwar, District Nainital on behalf of the Department, i.e. respondent nos. 1, 2 & 3. The respondents submit that on 25.10.2017, before the Tribunal, on the request of the counsel of petitioner, the petitioner was permitted to withdraw the relief, insofar as it related to the prayer of quashing of the order dated 22.3.2006, and was permitted to delete the private respondent no. 5 from the array of parties. Thus, by withdrawing the prayer to quash the order dated 22.3.2006, as well as deleting the name of respondent no. 5 from the array of parties, the cause of action for maintaining the original application did not survive, because the challenge to the order of promotion, which was earlier under challenge, was deleted.
22. In this regard the petitioner submits that deletion of private respondent no. 5 was suggested by the learned members of the Tribunal, on 25.10.2017 itself, since admittedly the respondent no. 5 had been promoted to the higher post long back. Hence, his name could be deleted from 11 the array of parties & it would make no difference to the merits of the case. The petitioner, further submits that the order dated 22.03.2006 is still under challenge in the present writ petition, and private respondent has been impleaded as respondent no. 5. However, since the respondent no. 5 has already been promoted to the higher post, the petitioner can claim his legal and legitimate right of promotion to the post of T-I Grade w.e.f. the date when respondent no. 5 got promotion to the said post.
23. The respondent submits that, as per the recruitment rules applicable in the case of petitioner, the ACRs are not maintained for the Group D Staff. Therefore, for the concerned promotion, inter alia, the record of service formed the basis of comparative evaluation of the eligible candidates by the DPC. Thus, seniority was not be the sole criteria for promotion. On comparative merit of the petitioner vis-à-vis respondent no. 5, the respondents state that the respondent no. 5 was having same certificate in forestry, from the same institution, from where the petitioner has obtained the certificate. Moreover, respondent no. 5 was a graduate, whereas the petitioner was having only intermediate qualification.
24. The respondent- Department further submits that Respondent no. 5- Mr. Parihar was having an exemplary service record without any vigilance case. While the 12 performance of petitioner was not satisfactory, as he deserted his duties without prior information, for which a warning was issued to him, to improve his performance through memo dated 11.12.1995. The respondent contends that the petitioner has also developed a nexus with the contractors, who deal with forest produce, prima facie, on which vigilance case was contemplated/ pending against the petitioner, as per the report given by the vigilance officer. This led to the rejection of the candidature of the Petitioner for the post of T- I Grade.
25. The petitioner denies these allegations, and submits that while filing petition, an application was filed by the petitioner along with the writ petition, seeking leave to prosecute the writ petition against Mr. Parihar as well, just by way of precaution. Since the writ petition could not be taken up for years together, and the petitioner was soon going to superannuate from service, the counsel for the petitioner, on obtaining consent from the petitioner, thought it proper in the interest of the petitioner, not to press the leave application & withdraw the same.
26. The petitioner further submits that Respondent no. 5- Mr. Parihar had already got two more promotions to the post of T-2 grade (in the year 2011) & T-3 grade (in the year 2016). Thus, there was no purpose in assailing his promotion order dated 22.03.2006, and continuing him as party 13 respondent. Therefore, withdrawal of the Leave Application & not pressing the relief with regard to the promotion order dated 22.03.2006, would not defeat the claim of the petitioner.
27. According to the petitioner, the order dated 16.05.2006 is the actual bone of contention, by which he was declared unsuitable for promotion to the post of T-1 Grade. The petitioner further submits that there was no adverse conduct report, or any other adverse materials, in the service record of the petitioner on the date of consideration of suitability for the post of T-1 grade, which could be a ground to declare the petitioner unsuitable for promotion to the post of T-1 grade.
28. The petitioner reiterates that he was the only person available in S.S. Grade-III for promotion to the post of T-1 grade, and a person of lower grade, i.e. S.S. Grade-II could be considered for such promotion only when the senior person of S.S. Grade-III was found unsuitable for promotion. No evidence was produced before the Tribunal, or before this Court by the respondents, to even, prima facie, prove the allegations of deserting the duties by the petitioners without information or application of leave, or developing any nexus with any contractor, as alleged by the respondents. 14
29. Learned Senior Counsel for the petitioner has placed reliance on the judgment of the Supreme Court in State of Gujarat v. S. Tripathy, (1986) 2 SCC 373, in support of his submission that the respondents could not have recorded the adverse confidential reports without any basis. Paragraph No.3 of the judgment is relied upon, which reads as follows:-
"3. In the High Court, no affidavit was filed by Shri Capoor and the allegations made against him went unanswered. When the learned Judges of the High Court repeatedly asked the Advocate General of the State whether there was any material with the Chief Secretary when he made the remarks in the confidential reports that the respondent was not yet fit for promotion and that he needed to be watched, the Advocate- General repeatedly told the court that there was no other material apart from the confidential reports. It was in those circumstances that the High Court came to pass severe strictures against Shri H.K.L. Capoor. It was only then that realisation appears to have dawned on the authorities concerned that an affidavit should have been filed by Shri H.K.L. Capoor explaining how and why he came to make the remarks which he made in the respondent's confidential reports."
30. In support of his submission, that the warning letter issued to the petitioner, in any event, lost its relevance, as the petitioner was promoted to T-1 grade in 2014, the petitioner has placed reliance on R.P. Pandey vs. U.P. Power Corporation Ltd. & others, (2004) 3 UPLBEC 3110, wherein the Court observed:
"41. It is admitted to both the parties that the petitioner was given promotion on the criteria of 'merit' on the post of Superintending Engineer, viz., on the post of Deputy General Manager on 5.10.2000. This merit promotion could only have 15 been granted when the entire service career of the petitioner was examined by the Selection Committee and he was found more meritorious and suitable person for the post as compared to other eligible candidates. Such merit promotion wipes out the sting of adverse material as per the direction of the Supreme Court in the case of Baikunth Nath Das (supra), for the purpose considering the case of compulsory retirement. The proposition has been reiterated by the Supreme Court in the case of Lalsa Ram (supra), and also in Vijay Kumar Jain's case (supra). The Division Bench in the case of Sone Lal Sankhwar (supra), also refused to interfere because the promotion in that case was not on merit but was simply grant of time scale on the basis of seniority.
42. There is no adverse material nor there was anything adverse before the Screening Committee or before the Appointing Authority against the petitioner after the date of his promotion, namely, 5.10.2000. The petitioner was compulsorily retired by means of an order dated 22.4.2002. Thus, the material, which has been taken into consideration and has been treated as adverse in judging the suitability and reasonableness of the petitioner to continue in service, was no material in the eye of law, as it lost its entire sting after promotion of the petitioner on 5.10.2000 on the substantive post of Deputy General Manager (Superintending Engineer)."
31. We have considered the rival submissions of the learned counsels.
32. First and foremost, it is not in the case of the petitioner that the promotion to the post of T-1 Grade (Deputy Forest Ranger) was based, either only on the seniority, or seniority-cum-merit. The criteria for promotion was merit. This is evident from the Technical Service Rules, 1975, as modified on 3rd February, 2000 and, in particular, Rule 6 thereof, which deals with "Career Advancement". Rule 6.1 states that "there shall be a system of merit 16 promotion from one grade to the next higher grade irrespective of the occurrence of the vacancies in the higher grade or grant of advance increment(s) in the same grade, on the basis of the assessment of performance. The persons concerned will be eligible for consideration for such promotion or for grant of advance increment(s) after the expiry of the number of prescribed years of service in the grade, as detailed in the succeeding paras." (emphasis supplied)
33. Therefore, the merit of the qualified candidates had to be assessed, and the inter-se seniority of the qualified candidates was of no relevance- unless the candidates were of equal merit.
34. The DPC found respondent no.5 to be more deserving and meritorious than the petitioner. Firstly, it was not for the Tribunal, much less, is it for this Court to step into the shoes of the DPC, and to make an assessment of the inter-se merit of the eligible candidates, for itself.
35. It is not the petitioner's case that any of the members of the DPC had any personal malafides or grudge against the petitioner. It has also come on record that on the relevant date in the service record of the petitioner, there was adverse material in the form of a warning letter dated 11.12.1995 issued to the petitioner on account of his 17 excessive leaves. Merely because the leaves sought by the petitioner were sanctioned and extended further, does not take away from the fact that the petitioner did take excessive leaves. The taking of excessive leaves is a clear reflection on the commitment of an employee to his responsibilities and duties.
36. Secondly, respondent no.5 was more qualified than the petitioner, inasmuch, as the petitioner was only intermediate pass, whereas, respondent no.5 was a graduate. On this short ground, the writ petition is liable to be dismissed.
37. The petitioner gave up the challenge to the order dated 22.03.2006 before the Tribunal, and also deleted respondent no.5 herein from the array of the respondents. His impleadment before this Court, was of no avail. So also his subsequent deletion.
38. The claim of the petitioner that he did so, as respondent no.5 had been granted further promotions in the meantime, and he was advised to do so by the Tribunal itself, is neither here nor there. It was for the petitioner to take his own decisions, and he cannot put the blame of his own conduct, and the consequences which flow therefrom, upon the Tribunal. No order has been placed before us to show that it was the Tribunal, which- on its own, decided to delete 18 respondent no.5 from the array of the respondents, and also to delete the challenge to the order dated 22.03.2006, by which respondent no.5 was promoted, and the petitioner was not promoted.
39. In our view, it was essential for the petitioner to maintain his challenge before the Tribunal to the order dated 22.03.2006, since there was only one promotional post of T-1 Grade (Deputy Forest Ranger), which could either go to the petitioner or respondent no.5. Two persons could not have been promoted to the said post on the same day. Two persons could not have occupied the said post at the same time- even notionally.
40. Since the petitioner is seeking promotion to the said post from the date when respondent no.5 was promoted, to be able to get the said relief, it was essential for him to seek a declaration dislodging respondent no.5 from the said promotional post of T-1 Grade (Deputy Forest Ranger), and for a direction granting him promotion to the said post in place of respondent no.5.
41. Merely because, over the years, respondent no.5 may have been promoted further, the said post cannot be granted to the petitioner notionally for the period when the same was occupied by respondent no.5.
19
42. Therefore, in our view, the petitioner having consciously and voluntarily given up the challenge to the order dated 22.03.2006, he cannot seek preponement of the date of promotion to the said date on the ground that respondent no.5 was promoted to the said post on 22.03.2006.
43. Moreover, by deleting respondent no.5 from the array of respondents, the petitioner has prevented respondent no.5 from contesting his said claim before the Tribunal. Mere impleadment of respondent no.5 in the writ petition was of no avail. While dealing with the present writ petition, under Article 226 of the Constitution of India, we are sitting in judicial review of the order passed by the Tribunal, and we are not required to deal with the issues raised by the petitioner, as in original proceedings.
44. The petitioner was promoted to the post of T-1 Grade (Deputy Forest Ranger) on 03.05.2014, i.e. eight years after the promotion of respondent no.5. The past performance of the petitioner, which involved his excessive leaves, may have lost their relevance by the time he was promoted in 2014, as the said performance related to the year 1995. However, the same was considered relevant by the DPC when it considered the promotions in the year 2006. 20
45. Moreover, promotions based on merit and performance, are always founded upon relative assessment of merit of the candidates. When the petitioner's case was considered in the year 2014 by the DPC for promotion, relatively, he may have emerged as the most meritorious candidate. That does not mean that he should be considered as the most meritorious candidate even in respect of an earlier held DPC in the year 2006. The submission that respondent no.5 was in Grade-II, and the petitioner in Grade- III, is neither here nor there, as the petitioner and respondent no.5 both were eligible to be considered for promotion to the post of T-1 Grade (Deputy Forest Ranger) by the DPC.
46. For the aforesaid reasons, we find no merit in the present writ petition, and the same is dismissed.
47. The parties are left to bear their respective costs.
(VIPIN SANGHI, C.J.) (R.C. KHULBE, J.) Dated: 22nd December, 2022 NISHANT