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2002 DIGILAW 271 (PAT)

Hem Kant Roy v. State Of Bihar

2002-02-26

S.N.JHA

body2002
Judgment S.N.Jha, J. 1. The dispute in these four writ petitions on behalf of sole petitioner each relates to appointment/promotion on the post of Assistant Conservator of Forests in the Bihar Forest Service. The dispute being common they have been heard together and disposed of by this common judgment. 2. The petitioners are aggrieved by the notification dated 19.12.98 by which the earlier notification promoting them to the post of Assistant Conservator of Forests has been cancelled and they have been reverted to the post of Range Officer of Forests. They also seek a consequential direction upon the respondents to consider their case for promotion to the post of Assistant Conservator of Forests. In CWJC No. 4072/99 the petitioner further seeks direction to amend the relevant provisions of the Bihar Forest Service Rules, 1953 (for short, "the Rules"). 3. The representative facts may be noticed from CWJC No. 81/99 as follows. The petitioner was selected for the post of flange Officer of Forests by the Bihar Public Service Commission and appointed to the post on 26.3.84. He was sent for one years Rangers training at the Central Forest Rangers College, Chandrapura, State of Maharashtra, which he joined on 2.4.84. He completed the course with Honours standing first in his batch on 23.2.85. He was awarded gold medal for securing highest marks with Honours and, also, silver medal for securing highest marks in range administration and another silver medal for securing highest marks in forest training. On completion of the training and passing the course he joined the office of the Chief Conservator of Forests, Bihar on 26.2.85 and posted as Forest Ranger in Patna Division. Further case of the petitioner is that on 27.3.85 he was recommended for admission to the second year of the two years State Forests Service course at the State Forests Service College, Dehradun against the seat allotted to the State of Bihar. On 1.4.85, he joined the College. On 31.3.86 he was awarded diploma by the said College. He in fact topped the merit list. In terms of Rule 3 (b)(i) of the Rules on 4.4.86 in anticipation of the approval of the Conservator he was posted as Assistant Conservator of Forests, Magadh Circle, Patna. The petitioner continued on the post pending completion of the formalities at the government level. He in fact topped the merit list. In terms of Rule 3 (b)(i) of the Rules on 4.4.86 in anticipation of the approval of the Conservator he was posted as Assistant Conservator of Forests, Magadh Circle, Patna. The petitioner continued on the post pending completion of the formalities at the government level. On 10.11.86 the Department requested the Bihar Public Service Commission to accord its concurrence in the appointment/ promtion as Assistant Conservator of Forests from the date of his joining. Meanwhile Clause (aa) was inserted in Rule 3 of the Rules on 26.12.89 providing for promotion of Range Officers of Forests acquiring Honours in the rangers course and passing the State forests service course as Assistant Conservator of Forests treating them as direct recruits in the Bihar Forest Service. Thus on 9.3.90 the petitioner was appointed as a direct recruit to the post of Assistant Conservator of Forests under Rule 3(aa) with effect from 30.8.85, the date when Rule 29 of the Rules was amended. It is relevant to mention here that the amendment inserting Clause (aa) in Rule 3 was given a retrospective effect by providing that the Clause "shall be inserted and shall be deemed always to have been inserted". Writ petitions were filed challenging different appointments/promotions including that of petitioners on the post of Assistant Conservator of Forests, such as CWJC No. 1634/86(R) before this Court. Pursuant to an interim order dated 11.8.87 passed in that case the petitioner was reverted to the post of Range Officer of Forests on 12.12.91. The petitioner filed CWJC No. 9226/91 wherein on 17.1.92 order of status quo was passed. Pursuant to the said order on 21.3.92 the post of Assistant Conservator of Forests was restored to him. The aforesaid writ petitions were finally disposed of on 9.2.96 [reported in 1996 (1) All PLR 425, titled Shyam Bihari Prasad V/s. Union of India]. While upholding Rule 3(aa), of the Rules this Court set aside the retrospectiveity part of it holding that the Rules shall operate prospectively. However, the impugned appointments on the post of Assistant Conservator of Forests and reversion of the persons concerned were set aside. The respondents were directed to appoint the petitioner and others as Assistant Conservator of Forests afresh in accordance with law making it clear that they shall not be posted from the date earlier than 26.12.99. However, the impugned appointments on the post of Assistant Conservator of Forests and reversion of the persons concerned were set aside. The respondents were directed to appoint the petitioner and others as Assistant Conservator of Forests afresh in accordance with law making it clear that they shall not be posted from the date earlier than 26.12.99. The respondents were also directed to prepare a fresh gradation fist. The petitioner represented to the respondents to consider his case for promotion on the post of Assistant Conservator of Forests under Rule 3(b)(i) and send reminders for the same. All this went in vain. Instead, by the impugned notification dated 19.12.98 he was reverted to the post of Range Officer of Forest. 4. It may be mentioned here that an interim order of stay was passed in the case i.e. CWJC No. 81/99 on 13.1.99 which was continued till further orders on 3.2.99. No such interim order however has been passed in the remaining three cases. 5. The case of the respondents is that the petitioners have been reverted to the post of Range Officer of Forests pursuant to the judgment of this Court in CWJC No. 1634/86(R) and analogous, and so far as the question of giving promotion on the post of Assistant Conservator of Forests is concerned, steps are being taken in that regard but for want of vacancies on the post of Assistant Conservator of Forests it has not been possible to implement the judgment and promote the petitioners or others to the said post. I shall refer to the respondents case again later at the appropriate place in this judgment. 6. Shri P.K. Shahi, learned counsel for the petitioner in CWJC No. 81/99, submitted that the case of the petitioner for promotion to the post of Assistant Conservator of Forests under Rule 3(b)(i) was under active consideration of the Government and in fact the BPSC had also made certain query on 17.1.87 which was never replied to presumably because of the imminent insertion of Clause (aa) in Rule 3. The State cannot deny consideration at this stage on the ground of lack of vacancies. There are two types of promotion of Rarige Officers to the post of Assistant Conservator of Forests under Rule 3(b)(i) and 3(b)(ii). His case is covered by Rule 3(b)(i). The State cannot deny consideration at this stage on the ground of lack of vacancies. There are two types of promotion of Rarige Officers to the post of Assistant Conservator of Forests under Rule 3(b)(i) and 3(b)(ii). His case is covered by Rule 3(b)(i). Alternatively, if not under Rule 3(b)(i) of the Rules, the petitioner is also entitled to be treated as Direct recruit under Rule 3 (aa) from the date of amendment i.e. 26.12.89. Counsel pointed out that in CWJC No. 1634/86 (R), this Court in para 94 of the judgment had clearly stated that the petitioner (respondent in that case) "will be appointed as Assistant Conservator of Forests afresh in accordance With law and they shall not be posted from a date earlier than 26.12.99" which must be treated as a mandate, the only rider being that such appointment will be effective from a date not earlier than 26.12.99. Counsel submitted that the State does not dispute the eligibility of the petitioner, the only difficulty expressed by it is that on account of lack of vacancies it is not possible to do so but such stand is contrary to the findings of this Court in the case of Sanjay Kumar Sinha V/s. State of Bihar, 1998 (3) PLJR 121. 7. Shri Upendra Prasad, learned counsel for the petitioner in CWJC No. 4072/99, adopted the submissions of Shri P.K. Shahi. Placing reliance on the judgment in the case of Sanjay Kumar Sinha (supra), he submitted that the cadre strength of the Bihar Forest Service having been determined under resolution of the Government dated 12.8.87 duly published in the Bihar Ga2ette on 14.10.87, the respondents are estopped from taking a different stand. 8. Shri Y.V. Giri, learned counsel for the petitioner in CWJC No. 4643/99, submitted that the petitioner already stood promoted as Assistant Conservator of Forests with effect from 5.11.86 and pursuant to the judgment in CWJC No. 1634/86 (R) such promotion has only to be made effective from 26.12.99. Counsel submitted that having acquired training certificate in 1988 the petitioner should be treated to be on probation on completion of the training in terms of Rule 29 of the Rules. Alternatively, in any case, the respondents cannot deny consideration under Rule 3(b)(ii) which is the normal channel of promotion on the basis of seniority particularly when his juniors have already been promoted with effect from 8.11.95. Alternatively, in any case, the respondents cannot deny consideration under Rule 3(b)(ii) which is the normal channel of promotion on the basis of seniority particularly when his juniors have already been promoted with effect from 8.11.95. In CWJC No. 1634/ 86{R) and analogous cases the Division Bench had clearly observed that the persons concerned including this petitioner are not to be treated as direct recruit to the Bihar Forest Service but "they will get their promotion in due course from the Forest Rangers". On the point of availability of vacancies, Shri Giri too referred to relevant part of the judgment in the case of Sanjay Kumar Sinha (supra). 9. Shri Sudhir Singh, learned counsel for the petitioner in CWJC No. 5255/2000, submitted that the case of the petitioner falls under Rule 3(b)(ii). The petitioner was already given promotion on being found fit by the Departmental Promotion Committee which was duly concurred in by the BPSC on 20.6.87. He was also confirmed on the post with effect from 17.9.91. But treating him on per with others he too was reverted by the said notification dated 19.12.98 purportedly oursuant to the judgment in CWJC No. 1634/86 (R) even though the petitioner was not party to those writ petitions. Counsel urged that the issue involved in that case was whether Rule 3(aa) of the Rules could be given retrospective effect, but as the petitioner claims promotion under Rule 3(b)(ii) his promotion could not be cancelled pursuant to the said judgment. On the point of vacancy, counsel adopted the submissions made earlier by his predecessors. 10. Shri R.K. Dutta, learned Standing Counsel no. 4, appearing on behalf of the respondents, submitted that the petitioners have been reverted pursuant to the judgment of this Court in the case of Shyam Bihari Prasad i.e. CWJC No. 1634/86 (R) and analogous, and therefore the reversion cannot be said to be erroneous or arbitrary. The dispute so far as the reversion is concerned stands concluded by the said judgment. He pointed out that while in respect of the petitioner of CWJC No. 81/99, Hem Kant Roy, who had been allowed the benefit of Rule 3(aa) of the Rules, a clear order setting aside the promotion was passed in para 91 of the judgment, as regards the petitioners of CWJC Nos. He pointed out that while in respect of the petitioner of CWJC No. 81/99, Hem Kant Roy, who had been allowed the benefit of Rule 3(aa) of the Rules, a clear order setting aside the promotion was passed in para 91 of the judgment, as regards the petitioners of CWJC Nos. 4072/99 and 4643/99 namely Kanak Kishore and Ajit Kumar Singh, they were in the category of respondents 9 to 15 whose claim was categorically rejected in para 88 of the judgment observing that these respondents could not be at par with Honours certificate recognised in Rule 3 (aa) for promotion and they could not be treated as direct recruit to the Bihar Forest Service and therefore the State Government was justified in declaring that they can not be treated as Assistant Conservator of Forests. As regards the petitioner of CWJC No. 5255/2000, Dharam Nath Singh, learned Standing Counsel submitted that though he was not party to the cases decided by the said judgment; as he had been promoted by the same notification which was set aside vide para 91 of the judgment, the respondents had no option but to revert him too. He contended that what the petitioners are literally seeking in these cases is review of the judgment of the Division Bench which is not permissible specially in view of the fact that the Special Leave Petitions preferred against the said judgment were dismissed by the Supreme Court which is evident from para 19 of the judgment in Sanjay Kumar Sinhas case (supra). 11. Learned Standing Counsel Submitted that all said and done the respondents do not dispute the petitioners eligibility and their claim for promotion to the post of Assistant Conservator of Forests. The crux of the dispute lies in the fact that the vacancies/posts are not available as a result of which it has not been possible to implement the judgment of this Court. He referred to the pleadings in the counter affidavit and submitted that the situation has arisen on account of increase in the cadre strength of the Bihar Forest Service to 277 though only 113 posts of Assistant Conservator of Forests have been created so far by the State Government. The said increase in the cadre strength was without following the prescribed procedure. The said increase in the cadre strength was without following the prescribed procedure. As per the procedure, proposal regarding creation of posts is examined initially by a designated Committee and the Finance Department but bypassing the procedure the strength was increased to 277. However, in view of the judgment of this Court steps have been taken for creation of additional 91 posts of Assistant Conservator of Forests. The proposal in this regard was placed before the APC which gave its concurrence but for a period of only one year from 1.4.2000. The Department was asked to put up proposal for proper analysis as to how many officers are finally required to be retained on permanent basis. The cabinet memorandum was prepared which was sent to the Finance Department for approval but in the meantime division of the State took place under the Bihar Reorganisation Act, as a result, the matter remained pending. As regards the finding of this Court with respect to the cadre strength, in the case of Sanjay Kumar Sinha (supra), learned Standing Counsel submitted that full facts perhaps were not brought to the notice of the Court possibly because the issue was raised by the concerned petitioners in the rejoinder affidavit filed at later stage. Steps however are now being taken to create additional posts to give effect to the judgment. He referred to the averments in the supplementary counter affidavit filed in CWJC No. 5255/2000. 12. Though the issue involved in these cases lies in a narrow jacket the relevant provisions of the Bihar Forest Service Rules may briefly be noticed since the matter relating to appointment etc. is governed by the said Ruls framed under proviso to Article 309 of the Constitution of India. It may be mentioned that the post of Assistant Conservator of Forests is the basic grade post in the cadre of the Bihar Forest Service. Rule 3 of the Rules, as it originally stood, provided for two modes of appointmentby direct recruitment under Clause (a) and by promotion under Clause (b). The provisions relating to direct recruitment are contained in Part II of the Rules, those relating to promotion are contained in Part V. In this case we are not concerned with the direct recruitment and therefore it is not necessary to refer to the related provisions. 13. The provisions relating to direct recruitment are contained in Part II of the Rules, those relating to promotion are contained in Part V. In this case we are not concerned with the direct recruitment and therefore it is not necessary to refer to the related provisions. 13. Before noticing the provisions relating to promotion under Clause (b) it may be appropriate to mention, as already noticed above, that on 26.12.89 a new Clause i.e. Clause (aa) was inserted in Rule 3 providing for a fictional, if I may say so, direct recruitment as Assistant Conservator of Forests in the Bihar Forest Service cadre. The amendment by which the said clause was inserted gave retrospective effect to the clause as if the clause was always part of the Rule ("shall be deemed always to have been inserted"). This Court in CWJC No. 1634/86 (R) and analogous cases (Shyam Bihari Prasad V/s. Union of India) struck down the retrospectivity part of the amendment but otherwise upheld the validity of the clause. The clause provides for the direct admission to the second year of the two years State Forest Service course in Forestry conducted by the Government of India of such of the Range Officers of Forests who pass the rangers course with Honours. On such admission they are to be treated as direct recruits to the Bihar Forest Service Cadre as Assistant Conservator of Forests subject to the provisions laid down in Rule 29 relating to training and probation etc. which it is not necessary to notice for the purpose of these cases. 14. it would thus appear that Rule 3 contemplates two modes of direct recruitment one in accordance with Part II of the Rules on the basis of competitive examination to be held by the BPSC and the other on the basis of deemed direct recruitment of eligible Range Officers passing the Rangers course with Honours on the basis of the admission to the second year of the two years State Forest Service course in Forestry conducted by the Government of India. 15. Likewise, the Rule contemplates two types of promotion under Clause (b) as under: "(b). 15. Likewise, the Rule contemplates two types of promotion under Clause (b) as under: "(b). by promotion in accordance with the rules contained in Part V of selected (i) who have obtained the honours or the high standard certificate at the Forest College, Dehradun, or at any State Forest School or College established for the training of Ranger students and who by unusual ability and industry in the course of their service as Range Officers of Forests have proved themselves fit for promotion; and (ii) who have long service, tried ability and probity, irrespective of their educational qualification: Provided that approximately twenty-five per centum of the total number of posts in the Service at any time shall be held by person appointed to the Service by promotion." From the perusal of the above it will appear that while under sub-clause (i) the selected Rangers who have obtained Honours or high standard certificate of the Forest College, Dehradun or at any State Forest School or College, established for the training of the Rangers students who in course of their service as Range Officers of Forests have proved themselves fit for promotion by virtue of their unusual ability and industry as fit for promotion; under sub-clause (ii), the selected Rangers who have put in long service and are men of tried ability and probity can be promoted irrespective of their educational qualification. Counsel for the parties broadly agreed that while Sub-clause (i) embodies the principle of merit cum seniority promotion sub-clause (ii) contemplates seniority cum merit promotion. While the former is granted on the basis of educational qualification, the latter is given irrespective of the educational qualification on the basis of tenure of service besides consideration of ability and probity. 16. It would thus appear that so far as the claim for promotion of the Range Officers of Forests is concerned they can be promoted to the post of Assistant Conservator of Forests, under Sub-Clause (i) if they possess the requisite educational qualification besides proving "unusual ability and industry" in course of their service as Range Officers. Those who do not possess the educational qualification mentioned in the clause are not eligible for promotion, they nonetheless can be promoted under the other clause on the basis of tenure of service besides consideration of abilityand probity. 17. Those who do not possess the educational qualification mentioned in the clause are not eligible for promotion, they nonetheless can be promoted under the other clause on the basis of tenure of service besides consideration of abilityand probity. 17. It is not necessary to make a detailed analysis of the criteria of promotion, for, as indicated above the respondents do not dispute the eligibility of the petitioners. The petitioners have been denied promotion on the ground of nonavailability of posts. This is the core of dispute involved in these cases. 18. In my opinion, this aspect of the matter also stands concluded by the decision in the case of Sanjay Kumar Sinha (supra). From para 23 of the judgment it is evident that the question as to cadre strength and vacancy was one of the issues involved in the case. In fact this was the first point argued in support of the petitioners claim of seniority over the promoted Assistant Conservator of Forests against the vacancies which according to the petitioners did not exist and therefore the promotions were illegal. After referring to the averment of the petitioner in that regard and taking into consideration the facts and circumstances the Court finally concluded vide para 33 of the judgment as under: "The letters (Annexure 13 series) no doubt indicate that there was some confusion in the mind of the authorities as to the number of posts in the cadre of Assistant Conservator of Forests. Apart from previously sanctioned posts, new posts had been created and some of the cadre officers were deputed against ex-cadre posts. Similarly, several posts had been created under different projects. It also appears that the Government had not taken a final decision in the matter, and that is why several requests were made by the Chief Conservator of Forest seeking the Governments clear cut decision. It was in the light of these that the Government of Bihar issued Annexure 14, the resolution issued under the orders of the Governor of Bihar dated 12th August 1987 published in the Gazette on 14th October, 1987. It was in the light of these that the Government of Bihar issued Annexure 14, the resolution issued under the orders of the Governor of Bihar dated 12th August 1987 published in the Gazette on 14th October, 1987. The said resolution refers to the fact that the matter regarding the determination of strength of the cadre of Assistant Conservator of Forest had been under consideration of the Government for a long period, and on count of the non-determination of the strength of the cadre, the officers were finding considerable difficulty in the matter of direct recruitment, promotion, grant of selection grade, super time scale etc. In these circumstances, the Government had taken a decision to determine the strength of the cadre. From Annexure 14 it would appear that the strength of the cadre was determined as 277, the details whereof are mentioned in the aforesaid Annexure. Annexure 14 is the same as Annexure R/D filed on behalf of the respondents, it would thus appear that the strength of the cadre was determined finally on 12th August 1987, and if the strength so determined is taken into account, sufficient number of posts existed in the cadre against which the private respondents could be appointed." 19. Learned Standing Counsel sub- mitted that the relevant facts do not appear to have been brought on record in the case of Sanjay Kumar Sinha, possibly because the averments as to the cadre strength and vacancies were made in the rejoinder affidavit filed by the petitioner in that case, and thus the State could not point out the fact that increase in the cadre strength had been effected without creat- ing posts. The State also further could not point out that the rules laid down a definite procedure for creation of posts, and before issuing notification dated 12.8.87/14.10.87 increasing cadre strength to 277, adequate number of posts of Assistant Conservator of Forests were not created. 20. The submission of the Standing Counsel does not appear to have sub- stance. From para 15 of the judgment it appears that the State of Bihar had filed reply to the rejoinder filed by the petition- ers. 20. The submission of the Standing Counsel does not appear to have sub- stance. From para 15 of the judgment it appears that the State of Bihar had filed reply to the rejoinder filed by the petition- ers. It was in the said rejoinder that aver- ments had been made about the increase in the cadre strength from 172 to 277 wcfe para 11 of the judgment, and if the State achad filed reply thereto it was open to it to state relevant facts if such facts had not already been stated, while filing reply to the rejoinder. Indeed, from paras 34 and 35 of the judgment it appears that this aspect of the matter was specifically gone into by this Court. The submission regarding lacuna in the decision culminating in the notification dated 14.10.87 as being violative of the Rules of Executive Business etc. was separately considered and repelled in these words: "The petitioners have, however, challenged the validity of Annexure 14 and contended that the rules of executive business were not followed inasmuch the concurrence of the Finance Department had not been obtained, and the approval of the Cabinet was also lacking. Counsel for the respondents contended that the strength of a cadre could be determined by an executive order, and the Resolution (Annexure 14) was issued under the orders of Governor of Bihar. There was, therefore, no illegality in the issuance of Annexure 14. It was further submitted that if one were to be guided by the objection raised by the Chief Conservator of Forest, even in accommodating the direct recruits, additional posts in the cadre had to be created, and this is obvoius from the letter of Chief Conservator of Forest (Annexure 13/B). In any event it was submitted that the cadre strength could be increased by issuance of an executive order. Counsel for the petitioners in reply submitted that no doubt the cadre strength could be increased by issuance of executive instructions, but once rules have been framed, they must be adhered to. It deserves notice that by issuance of Annexure 14 a new cadre was not being created, only the strength of the cadre was being determined by the Governor of Bihar. It deserves notice that by issuance of Annexure 14 a new cadre was not being created, only the strength of the cadre was being determined by the Governor of Bihar. The strength of the cadre has not been determined under the Bihar Forest Service Rules, 1953 and, therefore, it cannot be said that Annexure 14 is in breach of the Rules framed under the proviso to Article 300 of the Constitution of India. Under these circumstances, it was always open to the Governor to determine the strength of the cadre from time to time, and that is all that was done under Annexure 14." 21. In view of the categorical positive finding of this Court vide para 33 of the judgment, referred to above, it is not possible to accept the contention of the State, muchless sitting singly, that the petitioners cannot be promoted as Assistant Conservator of Forests for want of posts. Even if it is accepted that the posts were not created corresponding to the increase in the cadre strength the respondents are duty bound to complete the formalities so that the petitioners and others similarly situate may be promoted against such posts. 22. It should be kept in mind that in the case of Shyam Bihari Prasad (supra) this Court while quashing the different notifications by which the concerned respondents were appointed and/or reverted virtually directed the respondents to consider their cases for promotion. The impugned notifications regarding appointment/ reversion were quashed with a view that the matter is dealt with on a clean slate in the light of the observations and directions made in the judgment. It is relevant to mention that so far as petitioner Hem Kant Rai is concerned, in para 94 of the judgment the Court clearly stated that he will be appointed as Assistant Conservator of Forests afresh in accordance with law from a date not earlier than 26.12.89, as regards petitioners Kanak Kishore and Ajit Kumar Singh, in para 96 of the judgment the Court stated that they too will get their promotion in due course. Petitioner Dharm Nath Singh, as stated above, was not party to any of the writ petitions, his promotion came to be quashed because he had been promoted by a common notification. Petitioner Dharm Nath Singh, as stated above, was not party to any of the writ petitions, his promotion came to be quashed because he had been promoted by a common notification. There thus being direction of this Court to consider the cases of at least three of the petitioners, the fourth petitioner apparently standing on a better footing than them, the respondents cannot take shelter of the plea of lack of vacancies or posts at this stage. In my opinion, the conjoint effect of the two judgments is that the petitioners cannot be denied their promotion as Assistant Conservator of Forests and if there be any procedural bottleneck, the respondents are obliged to sort them out by completing the formalities required to create adequate number of vacancies within the increased cadre strength. 23. in the result, these writ petitions are allowed. The respondents are directed to consider the cases of the petitioners for their promotion on the post of Assistant Conservator of Forests in the Bihar Forest Service in the light of the observations made hereinabove forthwith. There will be no order as to cost.