Central Administrative Tribunal - Mumbai
Tarun Kumar Choubey vs Forest Establishment on 3 December, 2024
1 OA No.135/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, CAMP AT NAGPUR.
ORIGINAL APPLICATION No.135/2022
Date this Tuesday, the 03rd day of December, 2024.
CORAM: Justice M.G. Sewlikar, Member (J)
Shri Santosh Mehra, Member (A)
Tarun Kumar Choubey IFS,
S/o Shri (Late) Chunilal Choubey, aged 60 years,
Occ: Additional Principal Chief Conservator of
Forests (Retd.). R/at Flat No.B-204, Bella Accordo,
Ramnath City, Koradi Road, Bokhara,
Nagpu 441 111. Email [email protected].
Mobile: 9422838898. ... Applicant
(By Advocate Shri A.M. Sudame )
VERSUS
1. The Chief Secretary, Govt. of Maharashtra,
Mantralaya, Mumbai 400 032.
[email protected]
2. Government of Maharashtra,
Forest and Revenue Department,
through Principal Secretary (Forests) to the Govt.
of Maharashtra, Revenue and Forest
Department, Mantralaya, Mumbai 400 032.
[email protected]
3. Union of India, through Secretary to
Govt. of India, Ministry of Environment,
Forest and Climate Change, Indira Paryavaran
Bhavan, Jorbag Road, Jorbag, New Delhi 110 003.
[email protected].
2 OA No.135/2022
4. Principal Chief Conservator of Forest
(Head of Forest Force),
Van Bhavan, Ramgiri Road, Civil Lines,
Nagpur 440 [email protected].
... Respondents
(By Advocate Shri Bhaskar D Pandit &
Ms. Mugdha Chandurkar )
Reserved on :12.11.2024.
Pronouncement on: 03.12.2024.
ORDER
Per: Shri Santosh Mehra, Member (A)
By this application, the applicant is seeking the following reliefs:
"8.a Call for record of proceedings pertaining to order of promotion of the applicant to the post of Principal Chief Conservator of Forests (Pay Matrix Level 16), peruse the same; and
8.b. Quash the decision/order dated 21/12/2021 and 21/09/2021 of respondent no. 2 and direct respondent no. 2 for issue of notional promotion order to the applicant from an appropriate date. The decision/order dated 21/12/2021 and 21/09/2021 of date the respondent no.2 are annexed as Annexure A-11 and Annexure No.A-13 respectively
8.c. Direct the respondent no.2- the State of Maharashtra to issue order of promotion to the post of Principal Chief Conservator of Forests (Pay Matrix Level 16) with effect from January 2021, consequently, direct the respondents to pay and release salary of the post of Principal Chief 3 OA No.135/2022 Conservator of Forests (Pay Matrix Level 16) from January, 2021 to June, 2021 in favour of the applicant;
8.d. Further direct the respondents to revise and pay retirement benefits and pensionary benefits due payable to the applicant on the basis of pay fixation in pay matrix level 16, in the interests of justice.
8.e. Allow present application with costs; and
8.f. Grant any other relief deemed fit in the circumstances of the case in favour of the applicant;"
2. Facts leading to this application are as follows; 2.1. The applicant passed Indian Forest Service Examination conducted by Union of Public Service and was allocated Maharashtra Cadre. The applicant joined on 06th July, 1987 as Indian Forest Service (Probationer) and on 01st August, 1989 in Maharashtra State Forest Department. He was promoted to the post of Additional Principal Chief Conservator of Forests (NTFP), Nagpur (Pay Matrix Level 15) under 7th Central Pay Commission vide order dated 06th April, 2017. The next higher post is that of Principal Chief Conservator of Forests which is in Pay (Pay Matrix Level 16). The guidelines for promotion prescribed by respondent no.3, 4 OA No.135/2022 Govt. of India, Ministry of Environment, Forest and Climate Change vide letter dated 25th February, 2019 states 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 the officers thus cleared, at any time during the relevant year, provided vacancies in this grade are available and subject to the provisions of rule 12(7) of the IFS(Pay) Rules, 2016. The screening Committee for this purpose shall consist of the Chief Secretary, Principal Chief Conservator of Forests and Principal Secretary looking after the work of Forests (who should be an officer in the pay scale of Rs.26000/- in Vth CPC) failing which an Additional Chief Secretary level officer as members.
2.2 It is stated that as per the above guidelines, the applicant became eligible for consideration to the post of Principal Chief Conservator of Forests (Pay Matrix Level 16) after completion of 30 years on 06th April, 2017. The Departmental Promotion Committee/Screening Committee (DPC), constituted by the respondents held its meeting on 28th December, 2020 to consider the suitability of the officers for promotion to the grade of Principal Chief Conservator of Forests and recommended the applicant at serial no.1 and 5 OA No.135/2022 held him fit for promotion as Principal Chief Conservator of Forests (Pay Matrix Level 16).
2.3. The relevant para of the Minutes of the Screening Committee meeting held on 28th December, 2020 reads as under:
"12. The Screening Committee has decided to prepare the panel for promotion comprising of following officers who are found 'Fit for the promotion to the grade of the PCCF subject to the availability of vacancy.
Sr. Name Year of
No Allotment
1 Shri T.K. Choubey 1987
2 Shri T.S. K. Reddy 1987
3 Shri S.G. 1987
Tembhurnikar
4 Shri Sunil Limaye 1988
5 Shri K.P. Singh 1988
6 Shri Vikas Gupta 1988
7 Smt. Shomita Biswas 1988
2.4. Learned counsel for the applicant has referred to the Indian Forest Service (Cadre) Rules, 1966 specifically para 4(2) which states as under:6 OA No.135/2022
"...4(2) The Central Government shall, ordinarily 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 affect 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 two years, and with the approval of the Central Government for a further period not exceeding "three years to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts."
2.5 It is stated that had the respondents' issued orders of promotion immediately in January, 2021, the applicant would have worked as Principal Chief Conservator of Forests, at least upto the date of his retirement, for a period of six months i.e. 30th June, 2021. It is stated that there are two sanctioned posts of Principal Chief Conservator of Forests. The State Govt. as a regular departmental practice, upgrades the same post in which the incumbent is functioning to the level of Principal Chief Conservator of Forests (Pay Matrix Level 16) by exercising the powers conferred to the state government 7 OA No.135/2022 under rule 4(2) of the Indian Forest Service (Cadre) Rules, 1966. A copy of Notification, dated 12th August, 2016 of Ministry of Personnel, Public Grievance and Pension, Department of Personnel and Training showing two posts of Principal Chief Conservator of Forests sanctioned under sub- section (1) of Section 3 of the All India Service Act, 1951 read 1966 is cited for the same. In this regard, the learned counsel for the applicant has cited the following examples:
(1) Shri S.G. Tembhurnikar, Additional Principal Chief Conservator of Forests was promoted and posted to the grade of Principal Chief Conservator of Forests (Pay Matrix Level
16) under rule 4(2) of Indian Forest Service (Cadre) Rules, 1966 by temporarily upgrading the post of Additional Principal Chief Conservator of Forests (CAMPA) to the Principal Chief Conservator of Forests (CAMPA) by keeping the post of Additional Principal Chief Conservator of Forests 121 (CAMPA) in abeyance.
(2) Likewise, Shri G. Saiprakash (1986) and Shri Pravin Srivastava (1986) were also promoted by the respondent 8 OA No.135/2022 no. 2 by upgrading the posts of APCCF (BPD) Nagpur & APCCF (ITP) Nagpur in the meeting of Civil Services Board held on 26/12/2018, to the post of Principal Chief Conservator of Forests (BPD) Nagpur and Principal Chief Conservator of Forests (ITP) Nagpur respectively with the exercise of powers conferred under rule 4(2) of the IFS (Cadre) Rules, 1966.
(3) In the meeting, Civil Services Board held on 25th June, 2018, Shri Meyipokyim Aier was promoted and posted by the Respondent No. 2 on upgraded post of Principal Chief Conservator of Forests (Land Record) Nagpur (Pay Matrix Level 16) by the Respondent No. 2 with exercise of power conferred under rule 4(2) of IFS (Cadre) Rules, 1966. 4 days prior to his retirement so that he should not miss the promotion due to administrative delay.
(4) Mr. Anoop Badhwa was also promoted and posted on the upgraded post of Principal Chief Conservator of Forests (Personnel) Nagpur (Pay Matrix Level 16) by the Respondent 9 OA No.135/2022 No. 2 with exercise of powers conferred under rule 4(2) of IFS (Cadre) Rules, 1966 as he was also retiring on 30th September, 2017.
2.6 It is further averred that as mentioned above at para 2.2, the respondent no. 2 had gone further ahead to upgrade two posts of APCCF (BPD) Nagpur and APCCF (ITP) Nagpur on which Shri G. Saiprakash and Shri Pravin Srivastava were working, to PCCF (BPD) Nagpur and PCCF (ITP) Nagpur respectively on 28th December, 2018 so that their Junior Shri Nitin Kakodkar could be promoted as PCCF. The posts of PCCF (BPD) Nagpur and PCCF (ITP) Nagpur were upgraded to PCCF level for a period from 01st February, 2019 to 31st January, 2021 (two years) by respondent no. 2 and, therefore, these two posts should have been downgraded to the level of APCCF after 31st January, 2021 as its approval was not obtained after 31 st January, 2021 from Central Government. It is clear that respondent no.2 was favouring intentionally and deliberately two officers working as PCCF (BPD) Nagpur and PCCF (ITP) 10 OA No.135/2022 Nagpur after 31st January, 2021, though there was no vacant post of PCCF after 31st January, 2021, which is violation of the provisions of instructions of Ministry of Personnel, Public Grievances and Pensioners, Department of Personnel & Training, Government of India issued vide Notification No. GSR- 792 (E) dated 12th August 2016 and Sub-rule 2 of Rule 4 of Indian Forest Service (Cadre) Rules, 1966. 2.7 It is stated that the above promotions of the officers of the grade of APCCF (Level- 15) to PCCF (Level-16) was done when there were no vacant posts of PCCF (Level-
16) & the respondent no. 2 utilized its power conferred under sub-rule 2 of Rule 4 of Indian Forest Service (Cadre) Rules, 1966 for the benefit of officers, long serving in the department and approaching retirement. Likewise, when the applicant was recommended for promotion in DPC held on 28th December, 2020, he should have been promoted by temporarily upgrading the post of APCCF (NTFP) (Level-15) to PCCF (NTFP) (Level-16) by respondent no. 2 utilizing its power conferred under sub-rule 2 of Rule 4 of Indian Forest 11 OA No.135/2022 Service (Cadre) Rules, 1966. However, respondent no. 2 avoided to do the same and the applicant retired as APCCF (NTFP) (Level-15) on 30th June 2021, causing huge mental and financial loss and harassment, due to selective, arbitrary and discriminate use of power conferred under sub-rule 2 of Rule 4 of Indian Forest Service (Cadre) Rules, 1966 by respondent no. 2.
2.8 It is further stated that the applicant preferred OA 602/2021 before this Bench of the Tribunal and this Bench passed orders on 21st October, 2021. The relevant portion reads as under:
"....3. The applicant joined Indian Forest Service in MS Forest Department on 06.07.1987. He was promoted as Additional Principal Chief Conservator of Forests, Nagpur on 06.04.2017. He became eligible for consideration for the post of Principal Chief Conservator of Forests. The Screening Committee constituted for the said post met on 28.12.2020 and it recommended the name of the applicant for the post of Principal Chief Conservator of Forests.
However, thereafter no action was taken by the respondents in this regard. The applicant made several representations dated 03.02.2021, 18.02.2021, 03.03.2021, 14.05.2021 and
03.06.2021 to the respondent No.2 during his service tenure. He superannuated on 30.06.2021. Thereafter, he made another representation dated 10.08.2021 respondent No.2 seeking notional promotion and release of all the revised 12 OA No.135/2022 retiral benefits. However, no action has been taken by the respondents on his representations.
4. xxx xxx xxx
5. ...........The respondents are directed to decide the applicant's representation dated 10.08.2021, along with the additional representation, if received in one week from today, with reasoned and speaking order in accordance with rules / law and regulations within six weeks thereafter. Thereafter in one week, the order shall be communicated to the applicant.
6. With these directions, the Original Application stands disposed of. No order as to costs".
2.9 Accordingly, the applicant submitted representations to respondent no.2 as per the judgement of this Tribunal on 25th October, 2021, 26th October, 2021 and 20th December, 2021. The applicant requested respondent no.2 to consider these representations sympathetically and do the needful as per the guidelines/ instructions issued vide various Office Memorandums of Department of Personnel & Training, New Delhi in respect of notional promotion as well as on the basis of Hon'ble Supreme Court/Hon'ble High Court/CAT judgments cited and issue notional promotion order as Principal Chief Conservator of Forests (Pay Matrix Level 16). However, the respondent no. 13 OA No.135/2022 2 denied the notional promotion to the applicant vide letter dated 21st December, 2021 mentioning that the case of the applicant was not identical with the five judgments cited by him.
2.10 It is further stated that the respondent no. 2 in his letter dated 21st December, 2021 mentioned about their letter dated 21st September, 2021, which was never received by the applicant either through e-mail or through Registered Post. The letter dated 21st September, 2021 was sent on 21st December, 2021 along with the letter dated 21st December, 2021 through e- mail. This e-mail contained both the letters dated 21st September, 2021 and 21st December, 2021 of respondent no. 2 and the same was also not sent to other respondents. The applicant felt that respondent no. 2 deliberately issued it late after the order passed by Hon. Central Administrative Tribunal, Mumbai Bench, Mumbai on 21st October, 2021. This is obvious from the fact that had the respondents issued this letter dated 21st September, 2021 14 OA No.135/2022 on time, they would have definitely brought to the notice of this Tribunal during hearing on 21st October, 2021. 2.11 It is further alleged that respondent no. 2 had pre-decided about not to give the applicant regular promotion even after passage of six months-time after recommendation of Departmental Promotion Committee on 28th December, 2020 despite the name of the applicant being at serial no. 1 of select list for promotion. It is further contended that on the very next date of the retirement of the applicant, i.e. on 01st July, 2021, his next junior Shri S. G. Tembhurnikar was promoted on the basis of same recommendation of DPC dated 28th December, 2020 by temporarily upgrading the post of APCCF (CAMPA) to PCCF (CAMPA) by exercising power under Sub-rule no. 4 (2) of Indian Forest Service (Cadre) Rules 1966, though on 01st July, 2021 also there was no vacant post of PCCF. Thus, it is clear that respondent no. 2 made deliberate and calculated attempt to deny the genuine promotion to the applicant till he was working as APCCF 15 OA No.135/2022 (NTFP) and who was recommended for promotion to the grade of PCCF by DPC in its meeting held on 28th December, 2020. The action of the respondent no.2 smacks of malice, ill-will and arbitrariness, which is bad in law. Consequently, the applicant claims that a direction is required to be issued to the respondents to issue order of promotion on notional basis to the applicant from January, 2021 or from an appropriate date on notional basis to the post of Principal Chief Conservator of Forests, (Pay Matrix level 16). 2.12 The learned counsel for the applicant asserts that the respondent no. 2 falsely denied that the case of the applicant was not identical to Shri Anoop Badhwa (1984), Shri A.K. Mishra, Shri Meyopokim Iyer, Shri Nitin Kakodkar etc. as Respondent no.2 utilized the powers conferred under Sub rule 2 of rule 4 of the Indian Forest Service (Cadre) Rules, 1966 in most arbitrary, selective, illegal and partisan manner in the past. These all-IFS officers were promoted even though there were no posts of Principal Chief Conservator of Forests at the time of their 16 OA No.135/2022 promotion. It is stated that Respondent No.2 has no power to upgrade any post temporarily beyond 2 years under power conferred under sub-rule 2 of Rule 4 of Indian Forest Service (Cadre) Rules, 1966.
2.13 Learned counsel for the applicant has placed reliance on the judgment of CAT, Principal Bench of this Tribunal dated in OA Nos.1409/2009 & Ors. in the case of Mr. P.G. George Vs. Union of India & Ors. decided on 22nd April, 2010. The relevant portion of the judgment reads as under:
"......The right to be considered for promotion is a fundamental right [Union of India and others Vs. Sangram Keshari Nayak, (2007) 6 SCC 704]. ..... contends that such consideration, if it results in an employee being found fit, yet not leading to any meaningful result manifesting in his promotion, would be utterly meaningless.
............. It is the admitted position that the petitioner was eligible to be considered for promotion in the year 1994-95. It is also not disputed that his claim has not been considered. Thus, the petitioner, even if he was approaching the date of retirement when the matter was pending before the Tribunal, had a right to be considered with effect from the due date and on being found suitable, he could be fictionally granted the relief which had been denied to him for no fault of his. The relief could 17 OA No.135/2022 not be denied to him merely because a statutory authority viz. the committee as constituted under the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 had not met. The respondents cannot be permitted to take advantage of their own wrong. By sleeping over the matter, they cannot defeat the rights of a citizen available to him under the Constitution as well as the statutory provisions of the regulations. .....
It is contended that promotion is always prospective and cannot be granted retrospectively. It would, he contends, be ironical in the extreme that the serving employees would be promoted prospectively, whereas the retired employees would be promoted retrospectively. The learned counsel has relied heavily on the judgement of Hon'ble Delhi High Court in Union of India Vs. Rajendra Roy in W.P.(C) No.20812/2005 decided on 12.01.2007.
..... Yet another contention in Rajendra Roy (supra), which has been raised by the learned counsel for the Respondents herein also was that it would be anomalous that a retired person would be promoted from the date of occurrence of the vacancy whereas the serving employees would be given promotion from the date of his actual promotion following the approval of the panel.
...... After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for 18 OA No.135/2022 promotion....
.... The Hon'ble Supreme Court held that the appellant would certainly have a grievance if any of his juniors had been given promotion from a date prior to his superannuation which was not the case before the Court. The Court also noticed that there was no rule under which promotion could be granted from the date of occurrence of the vacancy.
..... However, it cannot be denied that if a person junior to a retired employee is promoted with retrospective effect, from a date when the retired employee was also in service, such benefit cannot be denied to the retired employee. It would be logically inconsistent to give the benefit of retrospective promotion to a serving employee and deny the same to a retired employee. It would be unfair and it would mean that the retired employee has been made to pay for the delay in the preparation of the Select List/ Panel, caused solely due to the mistake of the Government.
............. some retired employees had been given the benefit of retrospective promotion is concerned, this has been explained by the Respondents by stating in the counter affidavit that the persons junior to those retired employees had been working as Deputy Secretaries on in situ promotion. It is stated that because of this reason the retired employees Sh. P.S. Pillai, Sh. R.S. Mathur and Sh. K.R. Sachdeva had to be given the benefit of retrospective promotion. We feel that there is no need for us to go any further in this matter as the OAs succeed on the basis of the discussion above.
The Respondents are directed to grant notional promotion to the Applicants from the date their immediate juniors were promoted in various Select Lists of the years 2003, 2004, 2005 and 2006. The promotion would be notional but it would count towards increments and consequently 19 OA No.135/2022 in recalculation of post-retirement dues. The Respondents would recalculate the dues and make these over to the Applicants as expeditiously as possible but not later than 15.06.2010. There will be no order as to costs."
2.14 Learned counsel for the applicant also points out that Hon'ble Supreme Court in an identical case in the matter of Union of India Vs. Hemraj Singh Chouhan (Civil Appeal No. 2651-52 of 2010- arising out of SLP (C) No. 6758- 6759 of 2009) held that the requirement of holding selection is mandatory and there cannot be any delayed exercise of statutory function. The relevant portion of the said judgment reads as follow:
"....Therefore, this Court accepts the arguments of the learned counsel for the appellants that Rule 4(2) cannot be construed to have any retrospective operation and it will operate prospectively. But in the facts and circumstances of the case, the Court can, especially having regard to its power under Article 142 of the Constitution, give suitable directions in order to mitigate the hardship and denial of legitimate rights of the employees. The Court is satisfied that in this case for the delayed exercise of statutory function the Government has not offered any plausible explanation. The respondents cannot be made in any way responsible for the delay. In such a situation, as in the instant case, the directions given by the High Court cannot be said to be unreasonable. In any event this Court reiterates 20 OA No.135/2022 those very directions in exercise of its power under Article 142 of the Constitution of India subject to the only rider that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively.
2.15 Learned counsel for the applicant further invites our attention to the Judgment of the Bangalore Bench of this Tribunal in OA No.170/00483/2017 in the case of Shri B.J. Hosmath Vs. Union of India & Ors.
decided on 19th June, 2018. The relevant portion of the judgment is as follows:
"....11. On detailed consideration of the facts and circumstances of the case, we are of the view that denial of the Apex scale to the applicant solely on the ground of limited tenure of service left appears to us as unjustified more so when it is seen that persons with short tenure of two or three months of left- over service have been appointed to the Apex scale by the respondents themselves.
Therefore, we hold that the applicant is entitled to be appointed to the Apex scale post right from the date when his junior was appointed. Since the applicant has already retired on superannuation, his appointment to the Apex Scale post i.e. Principal Chief Conservator of Forest (HoFF) can only be on notional basis from the date when his junior was appointed to the Apex scale. However, he will get the benefit of the Apex scale right from that date with consequential implication on his pensionary benefits. Therefore, we direct the respondents to pass necessary orders giving notional appointment to the applicant 21 OA No.135/2022 right from the date when his junior was appointed to the Apex scale and give the consequential benefits. This shall be done within a period of two (2) months from the date of receipt of copy of this order."
2.16 Learned counsel for the applicant further invites our attention to the judgment of the Hon'ble High Court of Madras in an identical case in the matter of Shri S. Muthuirluppan Vs. Government of Tamil Nadu & Anr. (Writ Petition No. 28058 of 2013) decided on 23rd March, 2018 wherein the Hon'ble High Court held the petitioner shall be entitled to get notional promotion and accordingly he shall be entitled to get all the service benefits. The relevant portion reads as under:
18. In the result, following orders are passed in this writ petition.
(1) The impugned order, in so far as the non-inclusion of the name of the petitioner for promotion to the post of Superintending Engineer, is declared unlawful and consequently, it is declared that the petitioner shall be entitled to get notional promotion either from 01.02.2010 or 24.05.2010, as Superintending Engineer, and accordingly, he shall be entitled to get all the service benefits.
(2) The respondents herein are directed to give such notional promotion and service benefits to the petitioner, and in that respect, necessary orders shall be passed and the benefits shall be disbursed to the 22 OA No.135/2022 petitioner, within a period of eight weeks from the date of receipt of a copy of this order.
19. With these directions, the writ petition is allowed. However, there shall be no order as to costs." 2.17 Learned counsel for the applicant further invited our attention to the judgment of the Hon'ble High Court of Madras in an identical case in the matter of G. R. Chandran Vs. The Director of Public Health & Private Medicine & Anr. In WP No.6882/2007 (OA No.5607/2002) decided on 19th July, 2012 wherein it is held that the petitioner shall be entitled to get notional promotion with consequential benefits including revision of pension in accordance with law. The relevant portion of the above cite judgment is as follows:
"It was the obligation of the respondents to grant all consequential benefits including promotion to the petitioner if eligible, by giving him notional promotion because of his retirement. The action of the respondents in denying consequential benefits being arbitrary, is hit by Article 14 of the Constitution of India.
Consequently, this writ petition is allowed. A writ in the nature of mandamus is issued directing the respondents to consider the case of the petitioner for promotion from the date of his immediate junior was promoted, if found eligible, and grant him notional promotion with consequential benefits including revision of pension in accordance with law."23 OA No.135/2022
2.18 It is further stated that even after retirement, the applicant again requested the respondent for issuance of orders of notional promotion and revision of pensionary benefits through representations dated 09th July, 2021, 13th July, 2021, 16th July, 2021, 23rd July, 2021 and 10th August, 2021. Even the Govt. of India, Ministry of Environment, Forest and Climate Change vide letter, dated 28th July, 2021 requested the State Govt. to consider the applicant's representation under the relevant rules. 2.19 The learned counsel for the applicant has also repeatedly invited our attention to the following OMs, issued from time to time by DoPT:
(1) OM Vide No.22011/1/2014-Estt(D) dated 14th Nov 2014: This refers to the inclusion of eligible officers who are due to retire before the likely date of vacancies, in the panel for promotion.24 OA No.135/2022
(2) OM vide No.F.No.20011/5/2014-AIS-II dated 15th October 2015, which deals with review of Promotion Guidelines for promotion of IAS Officers.
(3) OM vide No.22011/3/2013-Estt(D) dated 25th January 2016, which deals with the promotion of Govt servants, exonerated after retirement.
(4) OM vide No.F.No.22011/3/2013-Estt.(D) dated 15th November, 2018 which deals with promotion of Government servants found fit by review DPC after retirement.
On the basis of the above OMs , the learned counsel for the applicant has strongly averred that once the applicant's name was put in the list suitable for promotion, as per DPC, he should have been promoted by the Respondents, duly exercising its powers under Rule 4(2) of Indian Forest service (Cadre) Rules , 1966.
3. Reply is filed on behalf of Respondent Nos.1, 2 & 4. Respondents have primarily contended as follows: 25 OA No.135/2022
3.1 As per revised guidelines regarding promotion of Members of the Indian Forest Service and composition of Departmental Promotion Committees issued vide Government of India Ministry of Environment, Forest & Climate Change New Delhi's letter dated 25 February, 2019 that the zone of consideration for promotion in the grade of Principal Chief Conservator of Forests (Pay Matrix level 16) would consist of all Members of the service who have completed 30 years of service Appointment in this grade would be made from amongst the officers thus cleared, at any time during the relevant year provided vacancies in this grade are available and subject to provisions of the Rule 12(7) of the IFS(Pay) Rules, 2016.
3.2 In pursuance of the above guidelines, the meeting of the Screening Committee was held on 28 December 2020 and after considering Grading/Bench Marks Scores obtained by the officers in the zone of consideration for last 10 years preceding 2018-19 in accordance with the instructions contained in GR date 24th March, 2011, the Screening 26 OA No.135/2022 Committee decided to prepare the panel for promotion comprising of officers who were found Fit for the promotion to the grade of the Principal Chief Conservator of Forests subject to the availability of vacancy, in which the name of the present applicant was at Sr No. 2 (actually No.1).
3.3. The Screening Committee took note of the fact that, the posting of Dr. Y. L. P. Rao who was repatriated from Central Government Deputation was under
consideration. After posting of Dr Y.L.P. Rao on the post of Principal Chief Conservator of Forests (Pay Matrix level
16), 3 posts had to be filled up to December 2021. One of the PCCFS to be promoted as Principal Chief Conservator of Forests (HoFF) after retirement of Dr. N. Rambabu on 28th February, 2021. Whereas, Shri N.H Kakodkar and Shri M. K. Rao had service up to August, 2021 and the applicant Shri T. K. Choube who was under zone of consideration was also retiring on 30th June, 2021.
3.4 In addition to Dr. Y. L.P. Rao (1986 batch), who was repatriated from Central Deputation and posted as 27 OA No.135/2022 Principal Chief Conservator of Forests (Pay Matrix level 16) vide order dated 02nd March, 2021, the officers selected in the committee meeting held on 26th December 2018 were two officers' of 1987 batch who were senior to the present applicant viz. Shri Pradeep Kumar (1987 batch) and Shri N. Vasudevan (1987 Batch) were promoted as Principal Chief Conservator of Forests (Pay Matrix Level 16) vide order dated 01st October, 2020.
3.5 There was no post available for promotion in the grade of Principal Chief Conservator of Forests (Pay Matrix level 16) till the retirement of the present applicant, hence he was not elevated to this grade till his retirement. Subsequently, two posts got available in the grade of Principal Chief Conservator of Forests (Pay Matrix level 16) due to retirement of Shri N H Kakodkar (30th June, 2021) and Shri M. K. Rao (31st August, 2021) on which the officer of 1987 batch Shri S. G. Tembhurnikar, who is junior to Shri T K Choubey (1987 batch) and Shri Sunil Limaye of 1988 Batch were promoted to the grade of Principal Chief 28 OA No.135/2022 Conservator of Forests (Pay Matrix level 16). 3.6 The present applicant had filed OA before this Tribunal bearing No.602/2021 which was disposed of on 21st October, 2021 with the directions:
".....On receipt of the additional representation, the Respondents are directed to decide the applicant's representation dated 10/08/2021, alongwith the additional representation, if received in one week from today with reasoned and speaking order in accordance with rules/law and regulations within six weeks thereafter....".
3.7 As ordered by this Tribunal as mentioned above, the Respondent decided the representations of the present applicant which he had submitted after the above order of this Tribunal i.e. on 25th October, 2021 and 26th October, 2021 with a reasoned and speaking order in accordance with the rules/law and regulations which was communicated to the present applicant vide letter dated 21 December, 2021. 3.8 In their reply, the respondent referred to the averment of the applicant that his immediate junior was 29 OA No.135/2022 promoted on the basis of the recommendation of DPC dated 28th December, 2020 in which list his name was also there. The respondent stated that he is misleading the fact that one Shri Nitin Kakodkar who was senior to him and was working as Principal Chief Conservator of Forests (Wildlife) had also superannuated along with present applicant on 30th June, 2021. Hence, on this vacant post his immediate junior was promoted to the post of Principal Chief Conservator of Forests. 3.9 It was specifically highlighted by the learned counsel for the respondents that no officer junior to the present applicant was promoted to the grade of PCCF till his superannuation.
4. We have carefully heard and given thoughtful consideration to the submissions of the learned counsel for the applicant and the respondents. We have carefully gone through the judgements of the superior Courts & OMs of the DoPT, relevant Cadre rules etc., furnished by the learned counsel for the applicant and the replies furnished by the learned counsel for the respondents.
5. The burden of the song of the learned counsel for the applicant is that though the DPC, which met on 28 30 OA No.135/2022 December 2020, put his name at number (1) in the Panel of officers found fit for Promotion to Pay level 16, the respondents did not exercise its powers under Rule 4(2) of the IFS Cadre Rules , to promote him, unlike what the respondent had regularly and repeatedly done in the cases of several IFS officers earlier.
6. We would now carefully examine the judgements of the various Courts, cited by the learned counsel for the applicant, to determine whether they support his case. In this regard, we will also duly consider the decision of the respondents dated 21st December, 2021 furnished by the respondents in compliance with the directions of this tribunal in OA 602/2021, to pass a reasoned and speaking order.
7. This decision deals with each and every judgment cited by the applicant which is as follows:
(1) Judgment passed by CAT, Principal Bench of this Tribunal in OA No. 1409 of 2009 in the matter of P.G. George Vs Union of India & ors. (supra), the Tribunal 31 OA No.135/2022 directed the Respondents to grant notional promotion to the Applicant from the date when their immediate juniors were promoted in various select lists. In this case, the officers junior to the retired employee were working as Deputy Secretaries on "in situ" promotion and because of this reason, the retired employees had to be given the benefit of retrospective promotion. In the case of the applicant, no officer junior to him was working on "in situ" promotion in Maharashtra. Hence this judgment is not at all applicable to his case.
(2) The judgment in the case of Union of India & Ors. Vs. Hemraj Singh Chouhan & Ors.(supra) decided by the Hon'ble Supreme Court of India on 23rd March, 2020 in SLP No.6758-6759 of 2009 is about delayed exercise of statutory function of the Government which is not at all related to the applicant's case. The decision further states that the respondents carried out the due process of constituting and Departmental Promotion Committee and shortlisted the name of the applicant for the promotion to the post of 32 OA No.135/2022 PCCF. However, respondents could not promote him in the scale of the Principal Chief Conservator of Forests due to unavailability of the post of PCCF till he retired. Had there been a vacant post of PCCF, and had DPC not held by the government depriving him of his promotion, it could have been called as the failure of the state to perform the statutory duties. It is also pertinent to mention here that the orders were passed in this case by the Hon'ble Supreme Court of India under Article 142 of the Constitution of India.
(3) It further says that in the case of B.J. Hosmath Vs. Union of India (supra) it was held that the Government had promoted the junior of the applicant on Apex Scale while the applicant was in service and the name of the applicant was not considered only on the ground that he has very limited tenure of service left. Hon'ble Apex Court considered that the denial of Apex Scale to the applicant only on this specific criterion does not appear justified. Hence, the case of the applicant was considered 33 OA No.135/2022 by the CAT. Since the applicant had already superannuated, his appointment to the Apex Scale post i.e. Principal Chief Conservator of Forest (Head of Forest Force) could only be on notional basis from the date when his junior was appointed to the Apex Scale. This case is not identical to the case of the applicant as no junior officer was promoted during his service period, and hence not applicable in the instant case.
(4) The respondents further state in this decision that the case of S. Muthuirluppan Vs. Govt. of Tamil Nadu was the case of giving notional promotion on the post of Superintending Engineer. In this case there were about 5 posts of Superintending Engineers vacant but the name of the Petitioner was not considered as he had superannuated when his junior was promoted. In this case, the Government took some time to approve the panel, as in the meantime, elections were declared and code of conduct came into force, and hence names of only three persons were approved by the Government and issued promotion 34 OA No.135/2022 order as the petitioner had already superannuated at the time of issuance of promotion order. The context of this case was totally different than that of the applicant, as there was no post of Principal Chief Conservator of Forests available till his retirement.
(5) The letter further refers to the revised guidelines regarding promotion of members of the Indian Forest Service and composition of Departmental Promotion Committees issued vide Government of India, Ministry of Environment, Forest & Climate Change, New Delhi's letter dated 25th February, 2019. The Government of India communication mentions that the zone of consideration for promotion in the grade of Principal Chief Conservator of Forests (Pay Matrix level 16) would consist of all Members of the service who have completed 30 years of service.
Appointment in this grade would be made from amongst the officers thus cleared, at any time during the relevant year, provided vacancies in this grade are available and 35 OA No.135/2022 subject to provisions of the Rule 12(7) of the IFS (Pay) Rules, 2016.
(6) As per the above guidelines, the meeting of the Screening Committee was held on 28th December, 2020 and after considering grading/bench marks Scores obtained by the officers in the zone of consideration for the 10 years preceding 2018-19 in accordance with the instructions contained in GR date 24th March, 2011, the Screening Committee decided to prepare the panel for promotion comprising of officers who are found fit for the promotion to the grade of the Principal Chief Conservator of Forests subject to the availability of vacancy, in which the applicant's name was at Sr. No.1.
(7) The respondents further noted that Dr. Y.L.P. Rao (1986 batch) repatriated from Central Deputation and was posted as Principal Chief Conservator of Forests (Pay Matrix level 16) vide order dated 02nd March, 2021. In the Civil Services Board (CSB) meeting held on 26th December, 2018 two officers' of 1987 batch who were senior to the 36 OA No.135/2022 applicant viz. Shri Pradeep Kumar (1987 batch) and Shri N. Vasudevan (1987 batch) were promoted as Principal Chief Conservator of Forests (Pay Matrix level 16) vide order dated 01st October, 2020. After retirement of Shri Rambabu on 28th February, 2021, Shir G. Saiprakash was promoted to the post of PCCF (HoFF) and Shri. Pradeep Kumar was posted on vacant post of Shri. Saiprakash, i.c. PCCF (BPD). Hence no post of Principal Chief Conservator of Forests was available till the date of his superannuation and therefore, this case cannot be relied upon in his case. (8) It further says that in the case of G. R. Chandran Versus Director of Public Health decided by the Hon'ble High Court, Madras in Writ Petition No. 6882 of 2007, the petitioner had fulfilled the criteria for promotion, but the action of respondents declining the relief of consequential benefits, merely on the ground that the petitioner had superannuated from service. The Writ petition was allowed by the Hon'ble High Court and directed the Respondents to consider the case of the petitioner for 37 OA No.135/2022 promotion if found eligible from the date of his immediate junior was promoted. This case was again totally different from the applicant's case, as no immediate junior officer was promoted during his service period and there was no violation of Article 14 of the Constitution in his case. This letter also mentions that one officer Shri. T.S.K. Reddy, who was junior to applicant was also considered fit for promotion of PCCF in the same Departmental Promotion Committee meeting held on 28th December, 2020, but could not get promotion before his superannuation, as the post of PCCF was not available before his superannuation. Also, it is once again stated that before his retirement, no officer junior to him was promoted to PCCF grade.
8. It is also important to scrutinize the various OMs, set in its support by the learned counsel for the applicant and determine whether they come to the rescue of the applicant. The relevant portions of these OMs are as follows:
38 OA No.135/2022
(1) "OM No.22011/1/2014-Estt(D) dated 14th November, 2014.
" The undersigned is directed to invite reference to the Department of Personnel and Training Office Memorandum No. 22011/4/98-Estt(D) dated October 12, 1998 regarding consideration of retired employees who were within the zone of consideration in the relevant year(s) but are not actually in service when the DPC is being held. The said OM provides as follows:-
".......There is no specific bar in the aforesaid Office Memorandum dated April 10, 1989 or any other related instructions of the Department of Personnel and Training for consideration of retired employees, while preparing year-wise panel(s), who were within the zone of consideration in the relevant year(s). According to legal opinion also it would not be in order if eligible employees, who were within the zone of consideration for the relevant year(s) but are not actually in service when the DPC is being held, are not considered while preparing year- wise zone of consideration/panel and, consequently, their juniors are considered (in their places), who would not have been in the zone of consideration if the DPC(s) had been held in time. This is considered imperative to identify the correct zone of consideration for relevant Year(s). Names of the retired officials may also be included Iin the panel(s). Such retired officials would, however, have no right for actual promotion.
(2) OM No. F.No.20011/5/2014-AIS-II dated the 15th October, 2015. The relevant portion of the OM reads as under:39 OA No.135/2022
"......at the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-
(1) Government servants under suspension;
(i) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
(iii) Government servants in respect of whom prosecution for a criminal charge is pending."
2. The matter has been examined in consultation with the Department of Legal Affairs and it is clarified that in the case of review DPC, where a junior has been promoted on the recommendations of the original DPC, the official would be considered for promotion if he/she is clear from vigilance angle on the date of promotion of junior, even if the provisions of para 11.1 of Promotion Guidelines dated 28.03.2000 gets attracted on the date of actual promotion, is considered."
(3). OM No. No.22011/3/2013-Estt (D) dated 25th January, 2016. The relevant portion reads as under:
"2. If on conclusion of the disciplinary/ criminal proceedings, the Government servant is exonerated, the procedure prescribed in para 3 of the OM dated 14-9-1992 is to be followed.
xxx xxx xxx 40 OA No.135/2022
5. A retired Government employee who is considered for notional promotion from the date of promotion of his next junior after opening of the sealed cover would also be entitled to fixation of pension on the basis of such notional pay on his notional promotion."
(4) OM No. F. No. 22011/3/2013-Estt. (D) dated 15th November, 2018. Relevant portion is quoted below:
"2. A Government servant who is not recommended in the panel by the original/supplementary DPC but later on is recommended in the panel by a review DPC but has since retired may be given the benefit of notional promotion w.e.f. the date of promotion of his immediate junior in the reviewed panel and fixation of notional pay subject to the fulfillment of the following conditions:
(i)That the officer who is immediate junior to the retired Government servant assumed charge of the higher post on or before the date of superannuation of the retired Government servant.
(ii)That the said retired Government servant was clear from vigilance angle on the date of promotion of his immediate junior.
(iii) A retired Government servant who is considered for notional promotion from the date of promotion of his immediate junior on the recommendation of a review DPC would also be entitled to fixation of pension on the basis of such notional pay.41 OA No.135/2022
(iv) The notional promotion, notional pay fixation and revision of pension shall be further subject to extant rules on promotion, pay fixation and CCS (Pension) Rules, 1972. Actual increase in pension shall be given only from the date of approval of reviewed panel by the competent authority. No arrears shall be paid."
9. We also take cognizance of the following extract from letter No.IFS-1121/C.R.94/-7 dated 21st September, 2021 written by Under Secretary, Govt. of Maharashtra to the applicant. The relevant portion is reproduced below:
"....3...... Competent Authority as per the advice of Civil Service Board at the relevant time, posted concerned officers after taking into consideration the administrative exigencies, vacancies available and probable vacancies in near future, nature and duties associated with the posts, availability of suitable officers, their service profile and their suitability for respective posts, relative seniority and age. It is therefore specifically bring to your notice that, the powers conferred under rule 1 (2) of Indian Forest Service (Cadre) Rules, 1966 are not used arbitrarily and discriminately to promote some selective specific officers. Powers under rule 4(2) is not resorted to be used for promotion sparingly."42 OA No.135/2022
10. From the above averments, judgements & OMs, etc., the following conclusions can be very clearly drawn:
(1) The respondents, in compliance with the requirements of IFS Cadre Rules, have conducted the DPC/ Meeting of the Screening Committee on 28th December, 2020 and had duly drawn the list of IFS officers, who were found fit for promotion to Level 16.
(2) The respondents have not promoted any IFS officer to Level 16, who was junior to the applicant, before his superannuation.
(3) The IFS Cadre Rules clearly mention that though the zone of consideration for promotion in Pay Matrix level 16 would consist of Members of Service, who have completed 30 years of service; but promotion can be given only if vacancies are available in that grade.
(4) Accordingly, even though the applicant was number (1) in the Promotion Panel list prepared by the DPC, he could not be promoted as there was no vacancy available, at the relevant time.
43 OA No.135/2022(5) It is also brought on record that another IFS officer of 1987 batch (i.e. bath of the applicant) Shri T.S.K. Reddy was similarly situated as the applicant. He was also not promoted to Level 16, though his name also figures in the Promotion Panel List prepared by the DPC, cited supra. (6) The operative portions of the various OMs of DoPT, cited above, also clearly indicate the following:
I. Promotions are subject to availability of vacancies.
II. Retired officials have no right for actual promotions.
III. A retired Govt servant can be considered for notional promotion, and be entitled to fixation of pension on the basis of such notional promotion, ONLY, from the date of promotion of his next junior.
11. It is the exclusive domain, privilege and prerogative of the Govt / Respondents to exercise powers, as deemed fit by them under IFS (Cadre) Rules 1966. As pointed out by the respondents (supra), the decision regarding upgradation and downgrading of different posts, depend upon a host of factors which include administrative 44 OA No.135/2022 exigencies, availability and suitability of officers, their profile, probable vacancies in future, nature and duties associated with different posts etc. Tribunal is not competent to look into these issues which lie in the exclusive domain of the Executive, nor can the Courts compel the Executive/Respondents to exercise these powers in one way or the other.
12. It is also very clear from the above, that the case of the applicant does not fall within the parameters of the judgements and the OMs, cited above.
13. In view of the above facts and circumstances, we are of the considered opinion that the OA has no legs to stand upon. Hence, the OA is dismissed. Pending MAs, if any, also stand closed. No costs.
(Santosh Mehra) (Justice M.G. Sewlikar)
Member (A) Member (J)
dm.
Digitally signed by Deepti Ganesh Munarshi
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