Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary To ... on 17 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH
O.A.No.692-HR-2012 Order reserved on: 12.12.2012
Order pronounced on: 17.12.2012
CORAM: HONBLE MR. RANBIR SINGH, MEMBER (A)
Kishan Lal Manhas, Principal Chief Conservator of Forests-cum-OSD (Rules) Haryana Forest Department, Forest Corporation Building, Sector-4, Panchkula
Applicant
By : Self
1. Union of India through the Secretary to the Government of India, Department of Environment, Forests & Wildlife, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi-110003.
By: None.
2. Financial Commissioner & Principal Secretary in Govt. Haryana, Forest Department, Chandigarh.
3. Principal Chief Conservator of Forests, Haryana, Panchkula.
By : Mr. Narender Singh, Advocate.
Respondents
O R D E R
HONBLE RANBIR SINGH , MEMBER (A) As per the O.A., the applicant was appointed to the Indian Forest Service w.e.f. 01.03.1976 as a direct recruit. He has been allotted 1976 as the year of allotment. He has earned appreciation for his performance and achievements from various quarters within and outside the State. He was selected for promotion to the post of PCCF Haryana in the apex scale of Rs.80,000/- Fixed (Head of the Forest Force) by the specially constituted high powered DPC on 11.12.2009 and was appointed as PCCF Haryana (HoFF) w.e.f. 4.1.2010.
2. It has been further stated in the O.A. that the respondents had created a new ex-cadre post, namely OSD (Rules), equivalent in status and responsibilities to the cadre post of PCCF, Haryana w.e.f.01.12.2010 and transferred him to that post vide impugned transfer order dated 7.12.2010 (Annexure A-1). The applicant on his transfer to the said ex-cadre post has made repeated requests to the respondents to provide and sanction staff to make it functional and provide necessary facilities in the office as per his status and entitlement, define the powers and functions of the PCCF-cum-OSD (Rules) and notify the scope and nature of work for the said Forest Rules Cell. But neither a proper office has been set up corresponding to the status of the post, nor the proposed Forest Rules Cell has been brought in position or made functional under the applicant. The scope and nature of the work for the said Forest Rules Cell has not been notified as envisaged in the transfer order.
3. The applicant contends that his transfer to the ex-cadre temporary post of OSD Rules is wholly malafide, wrong, unwarranted, unjustified, motivated, arbitrary, discriminatory, illegal, unconstitutional, ultra vires, unfair, malicious, conspiratorial, without exigencies of service, in colourable exercise of powers, devoid of grace in administrative action and absolutely against the principles of natural justice. The said ex-cadre post of PCCF-cum-OSD (Rules) to which the applicant has been transferred was created vide impugned order dated 7.12.2010 for a period of two years on a temporary basis i.e. from 1.12.2010 to 30.11.2012. However, even after expiry of 1-1/2 years of its creation, the said post has remained non-functional and transfer of the applicant to it has not been certified serving any public interest and thus is rendered defunct. The respondents have had no genuine cause while transferring the applicant to the said ex cadre post. The only aim was to confine the applicant to a dilapidated office space and keep him without work by incapacitating him to perform any public good while in service. This was done definitely with malafide intentions, ulterior motive and vested interests by the respondents at the instance of certain corrupt officers and political bosses of the department, who dislike the honest working of the applicant and his lawful discharge of duties and functions.
4. It has been further contended in the O.A. that no budgetary provisions have been made to meet the day to day expenses to run the said office of the applicant. Further, he remains without entitled facilities of office and supporting staff. Depriving the applicant of the entitled facilities of office, supporting staff and work, corresponding to his status and seniority is in gross violation of Articles 14, 16 and 21 of the Constitution of India.
5. In view of the facts and grounds mentioned in the aforementioned paragraphs, the relief sought in this O.A. is as follows :-
To declare the transfer of the applicant to the ex-cadre post of PCCF-cum-OSD (Rules) effected by the respondents vide impugned order dated 7.12.2010 (Annexure A/1), as defunct and void and direct respondent No.2 to allocate legitimate work/duties/powers / functions to the applicant, conforming to his status, rank and seniority in the Department.
6. A common written statement has been filed by respondents no. 2 and 3. It is submitted that vide orders dated 7.12.2010 (A-1) issued by the Government of Haryana, the applicant has been transferred to the ex-cadre post of PCCF-cum-OSD (Rules), Panchkula, which is declared equivalent in status and responsibilities to the cadre post of PCCF, Haryana w.e.f. 01-12-2010 for 2 years, who shall be head of Forest Rules Cell in public interest with headquarters at Panchkula. The supporting staff of one ACF (Additional Duty); one Superintendent (Additional duty), one Assistant, one Clerk, one Driver, Two peons and one Computer operator have been provided. The applicant has also been provided a staff car, two computers, one Photostat machine, one fax machine, one telephone with internet facility, 1 split Ac and other requisite furniture. The basic facilities like drinking water and toilet are already there in office complex of the applicant. The sweeper and Chowkidar of Haryana Forest Development Corporation are working on additional duty in the office of the applicant.
7. It has been further stated in the reply statement of respondents no. 2 and 3 that the Government vide letter dated 12.09.2012 have allotted the following work/duties to the applicant :-
1. Updation of Indian Forest Act, 1927 in conformity with the latest proviso, adding of new Rules & guidelines as incorporated by Govt. of India from time to time.
2. Updation of Wild Life Protection Ac, 1972 in conformity with the latest proviso, adding of new Rules & guidelines as incorporated by Govt. of India from time to time.
3. Updation of Forest Conservation Act, 1980 in consolation with the latest Rules and amendment as incorporated by Govt. of India from time to time.
4. Updation of Punjab Land Preservation Act, 1900 in conformity with the latest instructions and orders of the State Govt. of Haryana.
5. The updation of Financial Rules, Administrative Powers and Functions in Haryana Forest Department in accord to the latest Circulars, guidelines and instructions issued by Govt. of Haryana from time to time.
6. Updation and compilation of Haryana Forest Manual-II in the light of latest Financial rules/guidelines, circulars, instructions issued by Govt. of Haryana from time to time.
8. The respondents contend that proviso 2 of Rule 4 (2) of the Indian Forest Service (Cadre) Rules, 1966 allows the State Government to add for a period not exceeding two years and with the approval of the Central Govt. for a period not exceeding three years to create additional post carrying duties or responsibilities of a like nature to the the cadre post. The Government have created the Ex-Cadre post of officer on Special Duty (Rules) in the rank of Principal Chief Conservator of forest in the pay scale of Rs.80,000/- fixed (Apex Scale) for two years and this post is equivalent in status and responsibilities to the cadre post of Principal Chief Conservator of Forests under Rule 9(1) of the Indian Forest Service (Pay) Rules, 1968.
9. In the reply statement the respondents have listedout certain instances pertaining to the alleged misconduct of the applicant. They have also pointed out that presently the applicant is facing a charge sheet for using intemperate and rough language in official capacity against the then Principal Chief Conservator of Forest, Haryana and misusing the post of Chief Conservator of Forest, Haryana. They have also stated that the applicant has unnecessary remained busy in challenging creation of post and his posting before the courts The transfer of the applicant to the ex cadre post of PCCF-cum-OSD Rules vide impugned order is constitutional and legal and not against any rules/regulations.
10. The applicant has filed a rejoinder in which it has been reiterated that the respondents have not bothered to either set up a proper office along with entitled and essential facilities therein or positioned the sanctioned and earmarked staff in the Forest Rules Cell established at Panchkula headed by the applicant who is the senior most IFS officer in the cadre, equivalent in status and responsibilities, to the cadre post PCCF/HoD. The scope and nature of work for the Forest Rules Cell established with a definite structure has not been notified / ordered by the respondents even after more than 1-1/2 years of issuance of impugned transfer order.
11. The applicant has along with the rejoinder filed an affidavit in which he has pointed out the following factual position regarding the sanctioned staff in the Forest Rules Cell:
Sr.No. Name of Personnel sanctioned for the Forest Rules Cell Date on which positioned in the Forest Rules Cell 1 A.C.F. (Rules) by transferring the existing post of DFO (Hqrs). One Vacant 2 Independent Superintendent / Deputy Superintendent One Vacant. However, on 06.08.2012, a Supdt. (Sh. Satbir Singh) from a subordinate field office) joined to work on part time basis.3
Assistant / Clerk Two Assistant _ Vacant.
One Clerk (Sh. Chander Pal and later Sh. Gulshan Kumar) joined on 8.12.2010.
4.
Peons Two Two Peons (s/Sh. Mahima Dutt and Ram Singh) joined w.e.f. 8.12.2010.
5Chowkidar One Vacant.
12. The applicant has also on affidavit given the following factual position of the entitled supporting staff deputed with him :-
Sr. No. Name of entitled Staff Date on which positioned with the deponent 1 Private Secretary in the grade of Superintendent Vacant 2 Stenographer Sh. Ajay Khichi, joined on 8.12.2010.
3.
Computer Operator Sh. Surinder Singh, joined on 5.09.2012
4. Driver Occasional Services made available (presently Sh. Bijender Singh w.e.f. 13.08.2012)
5. Peons (2 Nos.) Vacant.
13. Further, the applicant in his affidavit has given the following factual position of the essential and entitled facilities :-
Sr.No. Name of entitled / essential facility Status
1.
General Condition Highly dilapidated space with broken window panes and shabbily and inadequately furnished cabins without almirahs and cupboards.
2. Drinking Water Nil
3. Toilets Nil
4. Sweeper Nil
5. Internet on office phone Nil
6. Coolers etc. in partitioned cabins Nil
7. Security arrangements Nil
8. Budgetary provisions made for day to day running of the office Nil
9. Services of a legal advisor/ADA Nil
14. The applicant has also stated in paras 8 and 9 of the affidavit as under :-
8. That consequently, the so called Forest Rules Cell remains non-functional and hence not a single file has been received by the deponent during the last about two years period from it and thus he remains without work.
9. That the ex-cadre post will stand abolished soon on expiry of its tenure sanctioned upto 30.11.2012, resulting into huge avoidable financial loss (till date estimated to be about Rs.70 lacs) to the exchequer, manifestly due to the deliberate, arbitrary and malafide actions of the respondents.
15. I have heard the learned counsel for the parties and perused the pleadings.
16. The Government of Haryana had vide Memo No.8876-Ft-2-2010/17027 (Annexure A-4) created the ex-cadre post of Officer on Special Duty (Rules) in the rank of Principal Chief Conservator of Forests, Haryana, in the pay scale of Rs.80,000/- Fixed (Apex Scale) for two years, who shall be head of Forest Rules Cell in pubic interest with headquarters at Panchkula. It was stated in the order that the Post of Officer on Special Duty (Rules) in the Forest Department shall be equivalent to in status and responsibilities to the cadre post of Principal Chief Conservator of Forests under Rule 9 (1) of the Indian Forest Service (Pay) Rules, 1968.
17. Vide Endorsement No.8876-Ft-2010/17155 dated 7.12.2010 (Annexure A-1), an order was issued transferring the applicant from the post of PCCF-cum-MD, HFDC, Panchkula to the post of PCCF-cum-OSD (Rules), Panchkula, against the newly created post It was stated in the order that the structure of Forest Rules Cell with headquarters at Panchkula shall be as under :-
Sr. No. Officers / Staff Number Remarks
1.
PCCF-cum-OSD Rules 1 Ex-Cadre
2. ACF (Rules) 1 HFS cadre post. Existing post of DFO (Hqrs.) in HFS Cadre shall be transferred to Forest Rules Cell.
3. Superintendent / Dy. Superintendent 1 Will be deputed from sanctioned cadre of Forest Department
4. Assistant/Clerk 2
-do-
5. Peon 2
-do-
6. Chowkidar 1
-do-
Total 8
18. In para 4 of the impugned order dated 7.12.2010 it was stated that : The scope and nature of work for the Forest Rule Cell is being issued separately. However, it was only after filing of the O.A. (on 06.07.2012) that on 12.9.2012 the work/duties of the applicant were notified as per para 7 (supra). It needs emphasis that while the post of Officer on Special Duty (Rules) was created on 1.12.2010, it was only on 12.9.2012 that the work and duties of Officer on Special Duty (Rules) were notified. No satisfactory reason has been given by the respondents for creating a post on 1.12.2010 and then transferring the applicant against the same on 7.12.2010 and notifying the work/duties of the post after a long gap only on 12.9.2012. No material has been placed on record to explain what public interest was being served by creating a post and then posting an officer on the post, and not assigning him any work.
19. As per the reply statement, work/duties were assigned to the applicant vide Government letter dated 12.9.2012. The aforesaid letter has not been placed on record. From internal page 2 of the reply statement, I find that the work relating to updation of Indian Forest Act, 1927, updation of Wild Life Protection Act, 1972 and up-dation of Forest Conservation Act, 1980 would appear to pertain to the Government of India and not to the State Government of Haryana. Updation of Punjab Land Preservation Act, 1900 would appear not to be within the domain of the respondents. No material has been placed on record by the respondents, to explain the position in this regard.
20.In para 4(6) of the OA relating to the facts of the case, the applicant has stated that no budgetary provision has been made for the office and the applicant. The salary of the staff and the applicant is hardly paid on time. Control over the staff of the applicants office is exercised by the cadre PCCF, who is four years junior to the applicant. These averments have not been denied by the respondents in the reply statement. Rather, the respondents have not furnished any information in reply to para 4(6) of the OA. In para 5(4) of the OA relating to the grounds for relief, it has been reiterated that because of absence of budgetary provisions to meet the day to day expenses to run his office, the applicant remains without entitled facilities of office and supporting staff. In reply to this averment the respondents in the reply statement have stated that: As far as.there is no separate provision for budget for the PCCF-cum-OSD (Rules). It is submitted that some delay has occurred in payment of salary to not only the applicant but also to all the officials/officers and that is due to transaction through Treasury. This is not a satisfactory explanation for not providing separate budgetary provision for the applicants office. If is separate budgetary provision had been made, then a separate D.D.O. could have been notified. This is a simple procedural matter. Moreover, the respondents have not provided information about the expenditure actually incurred on the office of the applicant.
21. A post cannot be considered equivalent in duties and responsibilities to another post merely by issuing a declaration under rule 9 (1) of the Indian Forest Service (Pay) Rules, 1968. The duties and responsibilities of the two posts should actually be equivalent. From the material placed on record it is clear that the applicant has not actually been given the duties and responsibilities equivalent to the post of Principal Chief Conservator of Forest. Similarly, the status, powers and functions of the post of Officer on Special Duty (Rules) are also not actually equivalent to that of the Principal Chief Conservator of Forest. On internal page 10 of the reply statement it is stated that the applicant was promoted to the post of Principal Chief Conservator of Forest in the apex scale of Rs.80,000 (Fixed) HoFF vide order dated 4.1.2010. That shows that in January, 2010 the applicant was fit for the highest post in the state cadre. After 11 months, he was transferred to the post of PCCF-cum-OSD (Rules). But the scope and nature of work was notified after a long gap only on 12.9.2012. The transfer is not in public interest. It is for extraneous considerations. Therefore, I find the impugned order dated 7.12.2010 to be patently arbitrary, unjust, wholly unfair and perverse.
22. Therefore, this O.A. is allowed. The impugned order, dated 7.12.2010 is quashed and set aside. It goes without saying that the applicant should be forthwith given a posting befitting his seniority and rank.
23. No costs.
(RANBIR SINGH) MEMBER(A) Place: Chandigarh Dated: 17.12.2012 HC* 1 O.A.NO.692-HR-2012