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2003 DIGILAW 366 (GAU)

Union of India (UOI) v. Ibobi Singh

2003-08-10

AMITAVA ROY, P.P.NAOLEKAR

body2003
JUDGMENT Amitava Roy, J. 1. The Petitioner herein, the Union of India, through its Secretary, Ministry of Environment and Forests, has challenged the judgment and orders dated 21.1.2000 and 22.1.2001 passed by the learned Central Administrative Tribunal, Gauhati Bench, in OA 15/95 and RA 15/99 thereby directing that the year of allotment of the Respondent/applicant be computed earlier than 1986 and further he be granted the benefit of the promotion quota after working out the deputation reserve posts in the concerned cadre. 2. We have heard Mr. C. Choudhury, Sr. CGSC, for the Petitioner and Mr. B.K. Sharma, senior counsel assisted by Mr. H.R. Das for the Respondents. 3. A brief sketch of the relevant facts would be necessary. The Respondent/applicant was appointed as Assistant Conservator of Forest in the State Forest Service of Manipur on 2.5.78 and was thereafter confirmed in the said post with effect from 2.5.80. He became eligible for promotion to the IFS with effect from 1.1.85 under the Indian Forest Service (Appointment by Promotion) Regulation, 1966, on having completed eight years of continuous service in the substantive capacity in the State Forest Service. He was given officiating appointment as Deputy Chief Conservator of Forest against IFS cadre post with effect from 4.9.86 and he continued to hold the cadre post under Rule 9 of Indian Forest Service (Cadre) Rules, 1966. The officiation of the Respondent/applicant in the cadre post was duly approved by the Central Government and the Union Public Service Commission for the period 4.8.96 to 30.6.89. The Government of Manipur, however, approved his officiating appointment with effect from 4.9.86 to 31.3.89. The further case of the Respondent/applicant is that no meeting of the Selection Committee for the Manipur part of the Manipur-Tripura cadre was held in time as prescribed to consider the cases of the eligible candidates of the State Forest Service Officers for appointment to the IFS by promotion in terms of Regulation (5) of the Indian Forest Service (Appointment by promotion) Regulations, 1966. The triennial review of the cadre strength as required under the Indian Forest Service (Cadre) Rules, 1966 and the Indian Forest Service (Fixation of Cadre Strength) Regulations, 1966, for Manipur, Tripura was also due in the year 1988. The last triennial cadre review for the Manipur-Tripura cadre was done on 29.3.85 fixing the number of senior scale posts in the Manipur Cadre at 19. The last triennial cadre review for the Manipur-Tripura cadre was done on 29.3.85 fixing the number of senior scale posts in the Manipur Cadre at 19. The next Cadre review was due after three years on 29.3.88 in terms of Rule 4(2) of the Indian Forest Service (Cadre) Rules, 1966. But it was not done inspite of the fact that a proposal to the said effect had already been submitted to the Government of India, Ministry of Environment and Forest on 7.4.87 vide Government of Manipur, Department of Personnel letter No. 2/14/29-IFS/DP, dated 7.4.87. It was only on 22.11.90, the triennial review was done vide notification dated 22.11.90, i.e., after a lapse of five years and eight months from the last review in the year, 1985. By the said cadre review the total number of senior scale posts in the Manipur part of the cadre was raised to 23 resulting in addition of two senior scale posts for promotion to the IFS. 4. The meeting of the Selection Committee was eventually held on 22.2.89 for consideration of the cases of the eligible State Forest Service Officers for promotion to the IFS. The name of the Respondent was included in the select list. According to the Respondent out of the eligible officers of the Manipur State Forest Service only his name appeared in the select list but he was not promoted. The selection committee met again on 7.4.1990 and the Respondent was again selected. In the mean while, the Respondent was officiating in the IFS cadre post as above. He was eventually promoted to the IFS on 30.8.90. The appointment to the IFS was in terms of Rule 8(1) of the Indian Forest Service (Recruitment) Rules, 1968 and Regulation 9(1) of the Indian Forest Service (Appointment by promotion) Regulations 1966. Thereby the Respondent was allotted Manipur-Tripura Cadre in the IFS under Rule 5(1) of the Indian Forest Service (Cadre) Rules, 1966. After his promotion, the Respondent apprehending that while fixing his seniority his officiating services in the cadre would not be taken into consideration, submitted a representation dated 30.12.91 pointing out that having regard to his officiating services in the cadre post, he is entitled to be granted "1984" as the year of allotment. The Respondent, however, was sanctioned "1986" as the year of allotment. The Respondent, being aggrieved submitted representations but to no avail. The Respondent, however, was sanctioned "1986" as the year of allotment. The Respondent, being aggrieved submitted representations but to no avail. He, therefore, in the said circumstances approached the learned Central Administrative Tribunal, Gauhati Bench, for redress. He prayed for an appropriate order to quash the decision of the Government of India granting "1986" as the year of allotment to him and sought for further directions for assigning "1984" as the year of allotment. The said application was registered as OA 15/95. 5. In its written statement, the Union of India maintained that the Respondent was rightly assigned "1986" as the year of allotment in accordance with the provisions of Rule 3(2)(c) of the Indian Forest Service (Seniority) Regulation 1968. It was admitted that the Respondent/applicant was given officiating appointment in the cadre post from 4.9.86. With regard to holding of meeting of the Selection Committee, it was pointed out that under the Indian Forest Service (Appointment by Promotion) Regulation, 1966, the meeting of the Selection Committee is acquired to be held ordinarily at the interval of not exceeding one year but there can be reasons beyond the control of the State Government for which the meeting of the Selection Committee may not be held annually. It took a stand that the Respondent/applicant should not be permitted to agitate this issue relating to the year, 1988 at such a belated stage. So far as the cadre review was concerned, it was contended that under Rule 4 of the Indian Forest Service (Cadre) Rules, 1966, though the strength and composition of each of the cadre of the Indian Forest Service is to be reviewed at an interval of three years in consultation with the State Government concerned, the proposal for such review has to come from the said State Government. It was admitted that the cadre review of Manipur-Tripura cadre of the IFS was notified on 22.11.90. The Union of India, however, maintained that the issue pertaining to non holding of the triennial cadre during 1985 to 1999 should not be allowed to be raised after a lapse of so many years. 6. It was admitted that the cadre review of Manipur-Tripura cadre of the IFS was notified on 22.11.90. The Union of India, however, maintained that the issue pertaining to non holding of the triennial cadre during 1985 to 1999 should not be allowed to be raised after a lapse of so many years. 6. On the basis of the pleadings of the parties and after considering the materials available on record, the learned Tribunal by its judgment dated 20.1.99, held that as the triennial cadre review ought to have been held at the interval of three years and as this was not done, the year of allotment of the Respondent applicant should be earlier than 1986 and further after providing the deputation reserve Quota, the promotional quota be computed and the Respondent/applicant be granted the benefit there of in the manner in which he is entitled under the law. 7. Being aggrieved, the Union of India presented an application before the learned Tribunal for review of the judgment and order and the application was registered as RA 15/99. It was, inter alia, contended therein that no grievance was expressed in the original application by the Respondent/applicant with regard to the State deputation reserve and, therefore, the learned Tribunal ought not have granted any relief pertaining thereto. It was further urged that a reading of the language of Rule 4(2) of the Indian forest Service (Cadre) Rules, 1966, it could notice construed that the cadre review should be done lie fore the expiry of three years and in the lads and circumstances of the case, though there has been some delay in holding the cadre review, the directions of the learned Tribunal if implemented won Id result in far reaching and wide spread consequences, further the cadre review if given a retrospective effect the same would result in additional vacancies in the promotional quota thus upsetting the process of promotion already undertaken. By its order dated 22.1.2001, the learned Tribunal dismissed the review application. 8. Mr. By its order dated 22.1.2001, the learned Tribunal dismissed the review application. 8. Mr. Choudhury has argued that the learned Tribunal has erred on a fundamental principle of law in directing that State deputation reserve posts be provided to the Manipur, Tripura cadre and for computing the promotional quota therein on the basis thereof and to grant the benefit in connection therewith to the Respondent/applicant, inasmuch as, no such grievance was either expressed by him in the original application nor any relief was prayed for in that regard. He has further urged that though under Rule 4(2) of the Indian Forest Service (Cadre) Rules, 1966, the triennial cadre review has to be held ordinarily at the interval of every three years it cannot be interpreted that such review has to be made before the expiry of every three years and that under no circumstances the exercise because the following the triennial cadre review in the year 1990 the cadre strength was raised, it did not follow that the Respondent/applicant was automatically entitled to promotion to the IFS on the basis thereof with retrospective effect. According to him, the claim the Respondent/applicant for year of allotment before 1986 on the basis of such retrospective promotion was untenable and the learned Tribunal in granting relief in That regard totally misconstrued the relevant Rules and Regulations. He argued that in the attending facts and circumstances, the Petitioner. Union of India be allowed to ascertain as to whether the triennial cadre review if undertaken in the year 1988 would have resulted in increase in the cadre strength before being required to provide the benefit of retrospective promotion to the Respondent/applicant and the consequential seniority on the basis thereof. 9. In reply, Mr. Sharma, learned Senior Counsel for the Respondent/applicant, has argued that it being incumbent upon the Central Government under Rule 4(2) of the Indian Forest Service(Cadre) Rules 1966 to reexamine the strength and composition of each cadre in the service at the interval of every three years in consultation with the State Government concerned and the Central Government having admitted failed to act in terms of the mandate of the said Rules for no fault of the Respondent/applicant, he cannot be denied the benefit of the increase in the cadre strength though made belatedly. He has argued that there is nothing on record to indicate there was any compelling circumstance for which the delay in the cadre review had occurred and, therefore, the learned Tribunal was perfectly justified in directing grant of the year of allotment to the Respondent/applicant prior to 1986. With regard to the aspect of State, deputation reserve, the learned Senior Counsel argued that in the facts and circumstances of the case an appropriate direction permitting the Respondent to submit a proper representation before the concerned authorities for consideration thereof in terms of the relevant Rules and Regulations would meet the ends of justice. In support of his submissions, Mr. Sharma placed reliance on the decisions of the Apex Court in TN Administrative Service Officers Association and Anr. v. Union of India and Ors. (2000) 5 SCC 728 and S. Ramanathan v. Union of India and Ors. (2001) 2 SCC 118 . 10. We have considered the rival contentions of the parties. The pleadings of the parties along with the supporting documents as well as impugned judgments and orders have been perused. In the instant case, except the Central Government, other Respondents have not filed their written statement. It is the pleaded case of the Respondent/applicant that the necessary proposal for review of the cadre strength of the Manipur Tripura cadre was duly submitted before the Central Government by the State Government vide its Department of Personnel's letter No. 2/14/79/IFS-DP, dated 7.4.1987. This fact has not been disputed by the Central Government, in its written statement. It has also not cited any exceptional circumstance, which had contributed to the delay in conducting the review of the cadre strength as proposed. In other words, there is no material on record to justify the delay of the cadre review which other wise is to be done mandatorily, at the interval of every three years under Rule 4(2) of the Indian Forest Service (Cadre) Rules, 1966. Our attention has not been drawn to any fact that there has been any material alteration in the circumstances between 1988 and 1990 to suggest that even if cadre review had been conducted in 1988, the strength of the cadre would not have been increased. It is also not in dispute that the Respondent has been selected for being promoted to IFS since 1989. 11. It is also not in dispute that the Respondent has been selected for being promoted to IFS since 1989. 11. In S. Ramanathan (supra) a similar grievance resulting from delay in the cadre review was raised before the Apex Court, it while holding that the language of Rule 4(2) is peremptory in nature, ruled that if there is any infraction thereof and no explanation is forth coming from the Central Government indicating circumstances under which the exercise could not be undertaken, the aggrieved party may approach the Court which in its turn would be well within its jurisdiction to issue appropriate direction depending upon the circumstances of the case. In that case, the triennial review was due in the year 1987 but the exercise was initiated in the year 1989 and finally the cadre strength was reviewed in the year 1991 increasing the same. In the said backdrop of facts, the Apex Court, therefore, directed the Central Government as well as the State Government to consider promotion of the State cadre officers on the basis of re-determined strength of the cadre treating the same to be in the year 1989 and further that if on such reconsideration they were entitled to any relief by way of promotion on the basis of the quota available to them in the cadre the same be accorded. In the instant case, the grievance of the Respondent/applicant is that due to the failure on the part of the Central Government to conduct the triennial cadre review in time his promotion to IFS was delayed thus resulting in loss of seniority in service. As observed hereinabove, the Central Government has failed to satisfactorily explain the delay in conducting the cadre review which otherwise in terms of the mandate of Rule 4(2) of the Indian Forest Service (Cadre) Rules, 1966, it was obligated to do at an interval of three years from the date of the last review, i.e., 25.3.85, more particularly, when a proposal to that effect had already been submitted by the concerned State Government in the year 1987. The law having prescribed a thing to be done in a particular way it has to be performed in the manner prescribed. No departure, therefore, can be approved in absence of any cogent and compelling reason. There is none in the instant case. We have examined the reasonings recorded by the learned Tribunal in this regard. The law having prescribed a thing to be done in a particular way it has to be performed in the manner prescribed. No departure, therefore, can be approved in absence of any cogent and compelling reason. There is none in the instant case. We have examined the reasonings recorded by the learned Tribunal in this regard. We are of the considered view that the learned Tribunal did not commit any error in arriving at its conclusion relating to this aspect of the matter and we concur with the same. 12. With regard to the aspect of State deputation reserve, we feel guided by the observations of the Apex Court in TN Administrative Officers Association and Anr. (supra). The Petitioner Association therein had sought for a direction to the Respondents to encadre of State deputation reserve posts, ex-cadre posts and temporary posts manned by the members of the Indian Administrative Service in the IAS cadre. After examining the claim of the Association and the Rules and Regulations pertaining thereto, the Apex Court held that only because the State Government had created some posts and had allowed the same to be manned by IAS officers, a mandamus should not be issued to the Central Government to encadre the said posts as the same would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength. Liberty was, however, granted to the Petitioner Association to submit a representation before the Central Government furnishing the particulars of the posts which according to them were fit to be encadred and it was directed that if such a representation was filed, the Central Government would consider the same in consultation with the State Government and take appropriate decision thereon. 13. Considering the pleadings of the parties and the state of law as above, in the instant case, we too are of the view that the Respondent is not entitled to an order directing the Central Government to compute the deputation reserve posts and provide the benefit of promotion to him after working out the promotion quota based thereon. 13. Considering the pleadings of the parties and the state of law as above, in the instant case, we too are of the view that the Respondent is not entitled to an order directing the Central Government to compute the deputation reserve posts and provide the benefit of promotion to him after working out the promotion quota based thereon. The Respondent/applicant may submit a representation before the Central Government with regard to the State deputation reserve posts and his claim in connection therewith under the Rules and Regulation governing his service and if such a representation is filed, the Central Government in consultation with the State Government concerned would consider and dispose of the same in accordance with the relevant Rules and Regulations. In view of the above, direction issued by die learned Tribunal in the impugned judgment concerning State deputation reserve is set aside. In the light of the above discussion, the petition is, therefore, partly allowed to the extent indicated hereinabove. There would be no order as to costs. Petition partly allowed.