Central Administrative Tribunal - Patna
Pradeep Kumar vs Forest on 10 August, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH
CIRCUIT SITTING AT RANCHI
OA/051/00130/17
Date of Order: 10.08.2018
CORAM
HON'BLE MR. K.N. SHRIVASTAVA, ADMINISTRATIVE MEMBER
HON'BLE MR. JAYESH V. BHAIRAVIA, JUDICIAL MEMBER
Pradeep Kumar, son of late Ram Nath Singh, 16/1
Basant Vihar, Raja Bagan, Kanke Road, P.O. University
Post Office, P.S.- Gonda, District- Ranchi (Principal Chief
Conservator of Forest, Wildlife and Chief Wildlife Warden,
Jharkhand, Ranchi since retired w.e.f. 30.09.2016)
....... Applicant.
- By Advocate: - Mr. Bhanu Kumar
-Versus-
1. The Union of India through the Secretary, Ministry
of Forest, Environment and Climate Change, Indira
Paryawaran Bhawan, Jorephagh, Aliganj, Road,
New Delhi - 03.
2. State of Jharkhand through the Chief Secretary,
Govt. of Jharkhand, Project Building, P.O. Dhurwa,
PS- Jagarnathpur, District- Ranchi.
2. Principal Secretary, Department of Forest,
Environment and Climate Change, Nepal House, PO
& PS- Doranda, District- Ranchi.
....... Respondents.
- By Advocate(s): Mr. H.K. Mehta, Sr. SC for UOI.
Mr. R.A. Gupta, ld. Counsel for
State of Jharkhand
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OA/051/00130/17
ORDER
[ORAL] Per Mr. K.N. Shrivastava, A.M:-
This Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, praying for the following main reliefs:
" (a) For quashing the impugned order as contained in Memo No. 2928 dated 17.07.2017 issued by the Principal Secretary, Department of Forest, Environment and Climate Change, Jharkhand by which a decision has been communicated to the applicant that he has not been found fit for appointment to the post of Principal Chief Conservator of Forest (HoFF) as per decision taken in the meeting of departmental selection Committee dated 05.07.2017, inter-alia on the ground that in one of the ACRs between 2009-10 to 2014-15 the score of applicant is only 7 and not in the category of "outstanding" and also on the ground that on 06.05.2011, the applicant was awarded punishment of censure.
(b) For a direction to select/promote the applicant notionally with effect from 29.08.2016 to the post of Principal Chief Conservator of Forest (HoFF) and fixation of pension accordingly because the applicant was the sole eligible candidate for selection as HoFF on 29.08.2016."
2. The factual matrix of the case, as noticed from the records, is as under:
2.1 The applicant belongs to 1982 batch of Indian Forest Service (IFS), Jharkhand cadre. He was in the grade of Principal Chief Conservator of Forest (PCCF) 3 OA/051/00130/17 with the pay scale of Rs. 75000-80,000/- (HAG+) when the Selection Committee met on 29.08.2016 for selecting Chief of the State Forest Department called PCCF & Head of Forest Forces (HOFF), in short PCCF (HOFF), in the scale of Rs. 80,000/-(Fixed). The Committee, however, did not select him and instead selected Shri R.R. Hembrom who was one year junior to him. 2.2 Aggrieved by his non selection to the post of PCCF (HOFF), the applicant approached this Bench of the Tribunal in OA No. 132 of 2016 which was allowed vide order dated 24.05.2017. The relevant portion of the said order is extracted below:-
"34. We have examined order 8 Rule 5 of the CPC as requested by Shri R.A. Gupta, ld. Counsel for the State Government of Jharkhand. It is not fair what support he seeks to draw from it. In our view it goes against him. The applicant has made specific averment on the basis of official documents that Shri Hembrom's notification as PCCF was sent to him only at 7.10 PM and charge taken by his at 8.46 PM. The respondents had at least two weeks' time to make a specific denial of this submission made by the applicant. On Shri Gupta's request they were also given time. The whole crux of adjudication vested on precise time. The applicant has been able to establish beyond doubt that Shri Hembrom was not PCCF and thus not eligible by the SCM took place for selection of HoFF.
35. In view of the aforesaid facts, we are constrained and compelled to conclude that Shri R.R. Hembrom was not holding the post of PCCF and thus not eligible to be considered for HoFF when the SCM took place at about 3.30 PM on 29.08.2016. Consequently, in our considered opinion, the applicant was the sole eligible candidate for selection as HoFF at that time.4
OA/051/00130/17
36. In conclusion, the selection committee proceeding dated 29.08.2016 for HoFF and consequent notification No 4106 dated 01.09.2016 selecting and notifying Shri R.R. Hembrom to the post of HoFF in the pay scale of Rs. 80,000 (Fixed) are quashed and set aside as being illegal as he was not eligible for the post. The respondent State of Jharkhand is at liberty to convene a Selection Committee meeting for selection to this post as per law. Since the applicant has retired in the meanwhile, the respondent authorities are directed to consider granting him notional benefit and pension fixation in the Apex Pay scale, if found suitable as on 29.08.2016."
2.3 Pursuant to the directions of the Tribunal contained in order dated 24.05.2017, the Selection Committee met on 05.04.2017. In the meanwhile, the applicant had retired from service on 30.09.2016 on attaining the age of superannuation. The Selection Committee again did not recommend the applicant for selection to the post of PCCF (HOFF) on the following grounds:-
(a) In his APAR for the year2009-10, he has been given 7 score which is less than the benchmark.
(b) He was awarded punishment of censure in the past.
2.4 Acting on the recommendations of the Selection Committee, the State Government of Jharkhand- respondent No.2 vide its Annexure A/2 order dated 17.07.2017 rejected the claim of the applicant for the 5 OA/051/00130/17 post of PCCF (HOFF) vide Annexure A-2 order dated 17.07.2017. Aggrieved by the impugned Annexure A/2 order, the applicant has approached the Tribunal in the instant OA praying for the reliefs as indicated in para-1 supra.
3. Pursuant to the notices issued, only respondent nos. 2 and 3 entered appearance and filed their reply/WS. Respondent no.1 is a proforma party. The applicant has filed rejoinder to the reply filed on behalf of Respondents No. 2 and 3.
4. On completion of pleadings, the matter was taken up for hearing the arguments of learned counsel for the parties.
5. Arguments of Shri Bhanu Kumar, learned counsel for the applicant and that of Shri R.A. Gupta, learned counsel for the respondent no. 2 and 3 were heard yesterday and today.
6. Shri Bhanu Kumar submitted that the applicant's selection to the post of PCCF (HOFF) has been declined vide Annexure A/2 order without any basis. Drawing attention to Annexure A/5 order of the State Government 6 OA/051/00130/17 dated 06.05.2011, he submitted that the punishment of 'censure' inflicted upon the applicant was effective from the year 1994 and the said penalty was not in existence when the Selection Committee met on 29.08.2016 and thereafter on 05.07.2017. Regarding the below benchmark grading of ACR of the applicant for one of the five crucial years, i.e. for the year 2009-10, he submitted that Shri A.K. Prabhakar also was having "Very Good"
grading for the years 2009-10 and 2010-11, whereas the applicant was given a score of 7 and 9 for those years, yet the Selection Committee recommended Shri Prabhakar over the applicant for the post of PCCF (HOFF). He further stated that in terms of the APAR guidelines issued by the DoP&T vide OM dated 23.07.2009, "Very Good" grading is given a score of 7. He thus concluded that despite the applicant having better scores and also having been senior to Shri A.K. Prabhakar in 1982 batch of IFS, he was unfairly ignored and the Selection Committee selected Shri A.K. Prabhakar for the post of PCCF (HOFF).
7. He further submitted that in the Selection Committee meeting held on 29.08.2016. i.e., just three 7 OA/051/00130/17 days before Shri A.K. Prabhakar was due to retire from service, de-facto the applicant was the sole eligible candidate, but unfairly an ineligible candidate, namely, Shri R.R. Hembrom was selected. His selection, however, has been held illegal by the Tribunal vide order dated 24.05.2017 on the ground of eligibility. He, thus, concluded that the applicant was fully qualified for being selected to the post of PCCF (HOFF) when the Selection Committee met on 29.08.2016. He further stated that the decision of the Selection Committee in its meeting held on 05.07.2017 would, therefore, appear to be totally illegal and unjustified.
8. Shri R.A. Gupta, learned counsel for respondents (State of Jharkhand) submitted that the Selection Committee has given cogent reasons for not recommending the applicant for the post of PCCF (HOFF). The applicant did not have unblemished record, he had been censured once and his ACR for the year 2009-10 was also below the benchmark. Shri Gupta thus submitted that Annexure A/2 order of the State Government is perfectly in order.
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9. We have considered the arguments of the learned counsel for the parties.
10. Admittedly, the applicant was senior to Shri A.K. Prabhakar in the inter-se seniority of 1982 batch of IFS. The Selection Committee in its meeting held on 30.04.2016, had considered Shri A.K. Prabhakar and the applicant for the post of PCCF (HOFF). From Annexure A/3 order of the State Government it is noticed that the ACR gradings of these two officers as indicated in its para 3(i) were not properly compared. For two years, namely, 2009-10 and 2010-11, Shri A.K. Prabhakar was given 'Very Good' rating whereas the applicant was given a score of 7 (equivalent to Very Good) and 9 (equivalent to 'Outstanding') respectively. Their ACRs for the remaining 03 years were having identical gradings. We would not like to make any further observation on the selection done then.
11. The respondents in compliance of the Tribunal's order dated 24.05.2017 in OA 132 of 2016, whereby the selection of Shri R.R. Hembrom to the post of PCCF (HOFF) was quashed and set aside and a direction was issued to the respondents to hold a meeting of the 9 OA/051/00130/17 Selection Committee to consider granting the applicant notional promotion and pension fixation in the Apex pay scale, if found suitable as on 29.08.2016, a meeting of the Selection Committee was held on 05.07.2017. The candidature of the applicant was considered for the post of PCCF (HOFF) by the Selection Committee. Accordingly, Annexure R/2 order has been issued by the State Government and thus the order of the Tribunal dated 24.05.2017 has been complied with. We noticed from it that the applicant has not been recommended by the Selection Committee primarily for two reasons, namely,
(i) he had suffered punishment of censure once and (ii) his ACR for the year 2009-10 with a score of 7 did not fall in the category of 'outstanding'. From the perusal of the records, we find that the punishment of censure was inflicted on the applicant vide order dated 06.05.2011 (Annexure A/5). This order makes it clear that the punishment would be effective from the year 1994. The punishment of censure has a currency of just one year. Hence after 1995, the applicant was free from the cloud of the punishment of censure. Regarding his below benchmark ACR for the year 2009-10, it would be relevant to mention that his ACR score of the year 2009- 10 OA/051/00130/17 10 is 07 which, in accordance with DoPT OM dated 23.07.2009, is to be construed as 'Very Good'. As noticed hereinabove, Shri A.K. Prabhakar was recommended by Selection Committee for the post of PCCF (HOFF) in its meeting held on 30.04.2016 despite he having two 'Very Good' ACRs. The applicant, on the other hand, had just only one 'Very Good' ACR in 2009-10 out of 05 relevant years. The Selection Committee, in its meeting held on 05.07.2017, had found the two 'Very Good' ACRs of Shri A.K. Prabhakar above the benchmark then. Hence, it is beyond comprehension as to how just one 'Very Good' ACR of the applicant has later been regarded as below benchmark by the Selection Committee. We, therefore, conclude that the Selection Committee has not been fair in assessing the ACRs of the applicant. It would also appear that the Selection Committee has been shifting the 'Goal Post' in determining the benchmark for ACR evaluation to the detriment of the applicant.
12. Be that as it may, the applicant has already superannuated from service on 30.09.2016. Even if it is held that he has been unfairly ignored for the post of PCCF (HOFF), he cannot be brought back to the said post 11 OA/051/00130/17 now. We, therefore, feel that ends of justice would be met only by allowing the applicant at least the pensionary benefits commensurate with the pay scale of PCCF (HOFF).
13. In the conspectus of the discussions in the foregoing paragraphs, the impugned order dated 17.07.2017 (Annexure A/2) is quashed and set aside. The respondents are directed to fix the pension of the applicant in the pay scale of PCCF (HOFF) i.e. Rs. 80,000 (Fixed) Pre-revised. We also direct that the applicant shall be given all consequential retiral benefits but without any interest.
14. The directions contained in para (13) shall be complied with by the respondents within a period of three months from the date of receipt of a copy of this order.
15. The OA is disposed of accordingly. No order as to costs.
(J.V. Bhairavia) (K.N. Shrivastava) Member (J) Member (A) Srk.