Central Administrative Tribunal - Hyderabad
Sanjeev Kumar Gupta And Ors. vs Union Of India (Uoi) And Ors. on 29 March, 2004
Equivalent citations: 2005(3)SLJ314(CAT)
JUDGMENT S.K. Agrawal, Member (A)
1. There are 2 applicants in this O.A. who have filed this joint application before this Tribunal to quash the impugned order dated 19.4.2002, as clearly illegal and arbitrary and direct the respondent-authorities to refix the year of allotment of the promotee officers mentioned in Para 6(b) of the O.A., by counting the date of continuation of officiation in senior post of IFS cadre but not the inclusion of the names in the select lists, as per Rule 3(2) (c) of the IFS (Regulation of Seniority) Rules, 1968 and correct the half-yearly list of members of IFS, borne on A.P. Establishment, corrected upto 1st July, 2001, General Administration (SC-IFS) Department, Andhra Pradesh and pass such other order as this Tribunal may deem fit and proper in the circumstances of the case.
2. The facts of the case in brief are that both applicant Nos. 1 and 2 are direct recruit Indian Forest Service Officers belonging to 1993 year of allotment of Andhra Pradesh Cadre and in continuous officiation of senior posts of IFS since 19.5.1998 and 2.6.1998 respectively.
3. The respondent-authorities recently communicated to the applicants, the year of allotment of 7 promotee IFS Officers of Andhra Pradesh Cadre, in the half-yearly list of members of IFS, born on A.P. Establishment and corrected upto 1st July, 2001 General Administration (SC-IFS) Department, Andhra Pradesh.
Apart from the half-yearly list communicated by GAD (SC-IFS), Andhra Pradesh Government, giving details of the year of allotment of IFS, the date of entry into the Govt. service, date of joining senior post after appointment and date of appointment to IFS, there are no other details or figures, referred in the representation made by the applicants, reply to which was officially communicated to the applicants by the Government. The remaining details, including the IFS (Appointment by Promotion) Second Amendment Regulations, 1997 and the IFS (Regulation of Seniority) Rules, 1997, have been recently gathered by the applicants from other sources.
4. Aggrieved by the arbitrary fixation of seniority to the promotees by the respondents, the applicants submitted representation to the respondent-authorities on 11.10.2001 and 18.12.2001, wherein among several other points, the applicants had primarily questioned the erroneous determination of seniority/year of allotment in the Indian Forest Service in respect of 15 promotee officers to their disadvantage and against the Indian Forest Service (Regulation of Seniority) Rules, 1968. As no reply was received by the applicants from the respondents and instead they found the respondents to have acted in promoting some of the 15 officers, one rank above the applicants by virtue of their irregular year of appointment/ seniority, the applicants approached this Tribunal vide O.A. No. 1643/2001, objecting to the seniority list. This Tribunal disposed of the said O.A. on 12.12.2001, directing the respondents to dispose of the representations of the applicants as expeditiously as possible, but within 30 days from the date of receipt of a copy of the order. This period further stood extended by another 2 months on the prayer of the respondents vide order dated 20.2.2002 in M.A. No. 109/2002.
5. It is the submission of the applicants that as per Rule 3(2) (c) of the IFS (Regulation of Seniority) Rules, 1968, the year of allotment of an officer appointed to the service shall be where an officer is appointed by promotion from SFS, the year of allotment of the junior-most among the officers recruited by competitive examination directly, or if no officer is available, the year of allotment of the junior-most among the interim recruits who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former.
Under explanation (1) it says--following the Rule 3(2) (c), it is very clearly specified that in respect of an officer appointed to the service by promotion in accordance with Sub-section (1) of Rule 8 of the Recruitment Rules, the period of his continuous officiation in a senior post shall for the purpose of determination of his seniority, count only from the date of inclusion of his name in the select list or from the date of his officiating appointment to such senior post, whichever is later.
The applicants have, therefore, submitted that determination of the year of allotment of the 15 promotee officers, referred to above, in the order dated 19.4.2002 is on the basis of inclusion of their names in the select list of 1992-93, 1993-94, 1994-95 and 1995-96, even though their date of continuous officiation is subsequent i.e. late 1998 and thereafter. Therefore, the order dated 19.4.2002 has been issued in clear violation of Rule 3(2)(c) of the IFS (Regulation of Seniority) Rules, 1968.
6. The applicants have further stated in the O.A. that as stated in the order of respondent No. 1, the determination of seniority/year of allotment to the 15 promotee IFS, is only on the basis of their select lists. It completely ignores the date of officiating appointment to senior post which is later to the date of inclusion of their names in the select list required under Rule 3(2)(c) Explanation 1 in IFS (Regulation of Seniority) Rules, 1968.
7. It has been submitted by the applicants that the IFS Seniority Rules were amended on 31.12.1997, providing for 3(iii) i.e. the year of allotment of a promotee officer shall be determined with reference to the year in which the meeting of the Committee to make selection, to prepare the select list on the basis of which he was appointed to the service was held and with regard to the continuous service rendered by him in the State Forest Service, upto the 31st day of December of the year immediately before the year in which meeting of the Committee to make selection was held, to prepare the select list on the basis of which he was appointed to the service, in the following manner :
(a) for the service rendered by him upto twenty one years, he shall be given a weightage of one year for every completed three years of service, subject to a minimum of four years.
(b) he shall also be given a weightage of one year for every completed two years of service beyond the period of twenty one years, referred to in Sub-clause (a), subject to a maximum of three years.
8. The applicants have further stated in the O.A. that since from the select list of IFS Officers of Andhra Pradesh Cadre, the applicants had officiated continuously since 19.5.1998 and June, 1998 in a senior post, therefore, all the above promotee officials whose date of officiating appointment to such senior posts is after June, 1998, should have been given 1993 year of allotment and a place below the applicants in the seniority list. The year of allotment for the promoters should depend upon their date of continuous officiation to senior IFS cadre post by promotee officer and the IFS (regular recruit), who officiated in the senior post of IFS earlier than that date, under the IFS (Regulation of Seniority) Rules, 1968. The applicants submit that they were the junior-most among the direct recruit IFS Officers who held continuous officiation in a senior post earlier than the date of commencement of such officiation by the officers and all of them should be placed in the year of allotment of the applicants and also placed below them in the seniority list of IFS Officers, by taking their date of continuous officiation in senior posts. However, the respondent-authorities have erroneously fixed the year of allotment of the promotee officers and conferred higher seniority and given them higher promotions even though they are not legally entitled. In view of such wrong seniority conferred on them, they are holding Conservator of Forests posts and the applicants are working under them and as a result, they are also writing the confidential reports of the applicants.
9. It is, therefore, the case of the applicants that as per IFS Seniority Regulations of 1968, the promotee officers are liable to be placed below the applicants in the seniority list and they are juniors to the applicants. If any promotions to the higher posts are given, the present applicants alone are entitled to be considered for promotions being senior to the 15 promotee officers.
10. The applicants have submitted that the names of the promoted IFS Officers in the select list were not continuous until their appointment with back date after 1.1.1998 and they had remained in the select list, without any right, even after 10 to 12 years of the select list, though the current Rule (7) (4) of the IFS (Appointment by Promotion) Second Amendment Regulations, 1977, valid after 1.1.1998 says that the select list shall remain in force till 31st of December of the year in which the meeting of the Selection Committee was held with a view to prepare the list with certain provisions. This is against the judgment of the Hon'ble Supreme Court. Their appointment should be made from the select list for the time being in force during the period when the select list remains in force under the IFS (Appointment by Promotion) Regulations, 1966. If the appointment is not done as per rules during the period, it should not be done at a later date by giving a back date especially when different rules are in force and the appointment is not as per the rules in force at that time.
11. The applicants have further argued that the promotee IFS Officers were appointed to the cadre post after 1.1.1998. However, their seniority was not counted from the date of select list or the date of continuous officiation, whichever is later, as per the judgment of the Supreme Court in the case of Syed Khalid Rizvi v. UOI, 1993(1) SLR 89. Therefore, the seniority should be counted only from the date of their continuous officiation in their cadre post, as it is later to their select list due under the relevant seniority rules and Supreme Court judgment mentioned above, even if they are appointed against the vacancy as arising at an earlier date. Even if the appointment with a back date is held valid, then in that case, the rules applicable for determination of seniority is the IFS (Regulation of Seniority) Rules, 1968, and not the IFS (Regulation of Seniority) Rules, 1997, which is only valid for officers appointed after 1st January, 1998.
12. The applicants submit that the Apex Court in the case of Syed Khalid Rizvi (supra) have held that the order of appointment under Rule 9 of the Recruitment Rules Crystallises the right of a promotce officer into the service. Seniority would be counted only from the date of select list or the date of continuous officiation after appointment, whichever is later. It has also been stated by the Supreme Court in the case of Markandey Singh, IPS v. M.L. Bhanot, IPS, 1998(2) SLR 694, that a depulationist before his absorption in the State Police Service, cannot get the benefit of officiation in accordance with seniority rules.
13. The respondents, in their counter, have stated that in pursuance to the directions issued by this Tribunal in various O.As., select lists from 1976 onwards were reviewed by a review Selection Committee which met on 8.1.1998, 9.1.1998, 4.2.1998 and 5.2.1998. The select lists prepared by the review Selection Committee for the years 1976 to 1991-92, were finally approved by the UPSC on 23.3.1998. The review select lists thus prepared implied rescinding of the original select lists for the relevant years and replacing them with the review select lists and then effecting the corresponding changes in the dates of appointments of the SFS Officers to IFS for all the respective years in which the original select lists were operated. After the reviewed select lists had been operated, the appointees to IFS were assigned the year of allotment in terms of IFS (Seniority) Rules, 1968.
14. The respondents have further submitted that the direct recruits enter the Indian Forest Service on the basis of entirely different source of recruitment and get the appointment and seniority accordingly. Direct Recruit Officers are, therefore, not competitors of the State Forest Service Officers who get inducted into IFS in terms of IFS (Appointment by Promotion) Rules, 1966. The SFS Officers, after getting inducted into IFS through different set of recruitment, get their appointment and seniority accordingly. It is, therefore, submitted by the applicants that because of the above, the applicants who are direct recruit officers cannot have any list. Therefore, so far as the promotion of the SFS Officers to the Indian Forest Service is concerned, the direct recruits have no locus standi to challenge the promotion of these officers and the seniority of SFS Officers appointed to IFS is a consequence of their appointment to IFS and is determined in terms of the relevant provisions as applicable to promoted officers under IFS (Regulation of Seniority) Rules, 1968. Since the basic order of appointment of SFS Officers to IFS may not be challenged by direct recruit officers, the consequential seniority cannot be challenged. If the basic order itself is beyond challenge by the applicants, there is no question of challenge to seniority and, therefore, the case goes beyond challenge automatically.
15. The respondents have, at Para 6.4 of their reply, given a table of 15 State Forest Service Officers of A.P. These 15 Officers were promoted to IFS in terms of IFS (Appointment by Promotion) Regulations, 1966, from the dates indicated against their names on the basis of inclusion of their names in the select lists for the years.
16. According to the respondents, after an officer of State Forest Service is appointed to IFS in terms of the provisions of the IFS (Appointment by Promotion) Regulations, 1966, his seniority is determined by allotting him the year of allotment in terms of the provisions of the IFS (Regulation of Seniority) Rules, 1968. Rule 3 of the IFS (Regulation of Seniority) Rules, 1968, provides for assignment of year of allotment. Rule 3(2)(c) which is relevant to the present case, according to the respondents, reads as under:
"3(2) (c)--Where an officer is appointed to the service by promotion in accordance with Rule 8 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the service in accordance with Rule 7 or if no such officer is available, the year of allotment of the junior-most among the officers recruited to the service in accordance with Rule 4(1) of these Rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former."
It is thus submitted by the respondents that in terms of the above rule, a State Forest Service Officer promoted to IFS, gets that year of allotment which has been allotted to the junior most direct recruit officer in that cadre who has officiated continuously in a senior post from a date earlier than the date of appointment by the promotee officer. It the case of all the 15 officers, the respondents submit, they were given appointment to IFS at different dates and their seniority after assigning them the year of allotment, was decided strictly in terms of the above mentioned rule.
17. The respondents submit that as per the averment of the applicants, seniority of the promotee officers should have been fixed in terms of Explanation 1 to this sub-rule which states that officers appointed by promotion to IFS can count the period of their continuous officiation in a senior post for the purpose of seniority only from the date of inclusion of their names in the select list or from the dates of their officiating appointment to such senior post, whichever is later. This explanation is provided to enable a promotee officer who had been officiating in a senior post from the date of his inclusion of his name in the select list, to count his promotion to IFS from that date and avail the benefit of seniority fixation from that date if that date happens to be prior to his date of appointment to IFS. The respondents have cited an example to explain the above point by stating that if an officer is included in the select list on 15.3.1990 and he was officiating in a senior post from that date or a date prior to 15.3.1990 and he is promoted to IFS w.e.f. 5.10.1990, then his seniority in the IFS will be fixed by taking 15.3.1990 as his date of appointment and he shall be assigned that year of allotment which has been allotted to the junior-most direct recruit officer in that cadre who has officiated continuously in a senior post from a date earlier than 15.3.1990. In the present case, the respondents submit that none of the 15 promotee officers, mentioned by the applicants, had officiated on a senior post prior to their appointment to IFS and, therefore, no such benefit was due to them and none was given. They were assigned their seniority in terms of Rule 3(2)(c) only. Therefore, the averment of the applicants that the seniority of these promotee officers ought to have been fixed in terms of Explanation 1 to this rule is misconceived and without any basis.
18. The respondents have vide their order dated 19.4.2002 tried to explain that since the appointments of promotee officers, mentioned by the applicants in their representations, were from dates prior to 1.1.1998, their seniority was decided in terms of provisions applicable under IFS (Regulation of Seniority) Rules prior to 1.1.1998.
19. The respondents have further submitted that the seniority of all the 15 promotee officers who were promoted from a date earlier than 1.1.1998 was fixed strictly in terms of the provisions of IPS (Regulation of Seniority) Rules as were applicable prior to 1.1.1998 and the averment of the applicants that the seniority of the 15 officers should have been made in terms of Explanation 1 to Rule 3(2)(c) of Seniority Regulations is totally misconceived and without any basis.
20. The respondents have stated that all the 15 officers were given appointments from back date on the basis of the review select lists of years prior to 1998 which were reviewed by the review Selection Committee in pursuance to the directions of this Tribunal in O. A. 48/1996 and batch. Therefore, officiation on senior posts by the 15 officers after 1998, mentioned repeatedly by the applicants, is, therefore, not relevant to the case. Once the appointments of these 15 Officers to IFS from dates prior to 1998 have been notified on the basis of inclusion of their names in the select lists of the relevant periods, the said officers occupy senior posts from those dates. The continuous refrain of the applicants that the 15 officers officiated in senior posts from dates much later to the dates of their appointments to IFS is, therefore, not relevant to the case. Also, since all the 15 promotee officers got appointed to IFS on dates prior to the dates when the applicants started officiating on senior posts, all the 15 promotee officers have to be senior to the applicants and, therefore, entitled to all consequential benefits.
21. The respondents submit that the suggestion made by the applicants through their averments in the O.A. that the Promotion Regulations which were amended and took effect from 1.1.1998 should be applied in the case of the 15 promotee officers on the ground that their promotion orders were issued after 1.1.1998 is wrong since the appointments of the 15 officers were made on the basis of revised select lists pertaining to years prior to 1998 and they were given appointments which date earlier to 1.1.1998. As such, the suggestion of the applicants is misconceived and erroneous.
22. The respondents state that all the 15 promotee officers mentioned by the applicants were included in the select lists of the relevant years and were appointed to IFS on the basis of their inclusion in the select list and availability of vacancies. All the 15 officers were appointed lo IFS w.e.f. dates prior to 1.1.1998 even though orders could be issued after 1.1.1998 as the select lists in which the names of these officers figured, were reviewed in 1998.
23. According to the respondents, all the 15 Officers of State Forest Service were first appointed to IFS in terms of the provisions of IFS (Appointment by Promotion) Regulations, 1966, from dates indicated against their names and thereafter, their seniority was determined by assigning them the year of allotment in terms of the provisions of Rule 3(2)(c) of the IFS (Regulation of Seniority) Rules, 1968. As such, reference by the applicants to the decision of the Apex Court relating to a deputationist not being entitled to the benefit of officiation before his absorption to State Police Service, is not relevant in the present case. The respondents have further submitted that since the 15 Officers who were appointed to IFS on the basis of their inclusion in the select lists for the relevant years have been assigned seniority strictly in terms of the seniority regulations then in force, no rights of the applicants have been adversely affected as a consequence thereof.
24. The learned Counsel for the applicants, in support of his case, has relied upon the judgment of this Tribunal passed in O.A. 1513 of 2002 which is dated 24.12.2003. It is seen that in that case, though the selection of the applicants to Indian Forest Service was made under the Indian Forest Service (Regulation of Seniority) Rules, 1968, they had been given the year of allotment as per the new rules i.e. Indian Forest Service (Regulation of Seniority) Rules, 1997. The said O.A. was allowed with the direction to the respondent-authorities to allot the applicants of that O.A. the year 1991 as the year of their seniority to the Indian Forest Service instead of the year 1992, as was allotted to them, based on the old Regulation and not 1992-93 based on the new Regulations.
25. Another case referred to by the ld. Counsel for the applicants is that of the Hon'ble Supreme Court in Syed Khalid Rizvi and Ors. v. UOI and Ors., (supra), in which it was held that seniority of promotee officers is to be reckoned from the date of their inclusion in the select list or from the date of their continuous officiation in the cadre post, whichever is later, on approval of their appointment by Central Government. It was further held by the Supreme Court in that case that the period of their continuous officiation prior to such date, would be treated as fortuitous and not countable and hence year of allotment cannot be assigned from the date of the initial appointments. Unless the officers are brought on the select list, appointed to the cadre posts and have continuously officiated thereon, year of allotment cannot be assigned.
26. We have considered all facts of the case and the arguments put forth by the ld. Counsel for the applicants as well as for the respondents. We have carefully gone through the facts stated in the counter-reply of the respondents as well as the submissions made by the applicants Counsel in that regard. Also the two decisions cited by the learned Counsel for the applicants, discussed above, have been perused by us carefully.
27. From the judgment dated 24.12.2003 passed in O.A. No. 1513 of 2002 by this Tribunal, we find that the principle followed in deciding the O.A., has also been followed in the present case by the respondents. It was held in O.A. No. 1513 of 2002 by this Tribunal that what is material is the select list and since both the applicants of that O.A. have been included in the select list for the year 1995-96, their seniority and weightage shall be given under the Indian Forest Service under the Regulations of 1966 and if according to the old rules, those applicants are to be given seniority from 1991, then it has to be given from that year and not from 1992, as has been given to the applicants by the respondents in accordance with the Indian Forest Service (Regulations of Seniority) Rules, 1997.
As regards the other case of the Supreme Court of Syed Khalid Rizvi & Ors., also relied upon by the ld. Counsel for the applicants, we find that the facts of that case are different to the facts of the present case, as the selection in that case was made under the IPS (Regulation of Seniority) Rules, 1954, whereas the selection in the present case is in accordance with the Indian Forest Service (Regulation of Seniority) Rules, 1968 and the same cannot be compared.
28. We are, therefore, convinced that all the 15 Officers stated by the applicants in the O.A., of the State Forest Service were first appointed to IFS in terms of the provisions of IFS (Appointment by Promotion) Regulations 1966, from dates indicated against their names and thereafter their seniority was determined by assigning them year of allotment, in terms of the provisions of Rule 3(2)(c) of the IFS (Regulation of Seniority) Rules, 1968. We, therefore, find that all the 15 Officers have been assigned seniority strictly in terms of the seniority regulations then in force and no rights of the applicants have been adversely affected as a consequence thereof. Moreover, we find that in terms of IFS (Regulation of Seniority) Rules, 1968, a State Forest Service Officer promoted to IFS gets the year of allotment which has been allotted to the junior-most direct recruit officer in that cadre, who has officiated continuously in a senior post from a date earlier than 15.3.1990. We find in the present case, none of the 15 promotee officers, whose names have been mentioned by the applicants in the O.A., had officiated on a senior post prior to their appointment to IFS. The said officers were assigned their seniority in terms of Rule 3(2)(c). Since the appointment of the promotee officers were from dates prior to 1.1.1998, their seniority was decided in terms of provisions applicable under IFS (Regulation of Seniority) Rules prior to 1.1.1998. We further find that all the 15 State Level Forest Officers appointed to IFS were given the appointments to IFS on different dates between 1987 to 1996. As such, their seniority and weightage has been correctly given by the respondents under the Indian Forest Service (Appointment by Promotion) Regulations, 1966.
29. We, therefore, hold that the action of the respondent-authorities in fixing the seniority of the State Forest Service Officers promoted to IFS was perfectly in order and as per rules and the same does not require any interference or modification by this Tribunal.
30. In view of the above, we do not find any merit in the O.A. The same is accordingly dismissed, with no order as to costs.