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2006 DIGILAW 635 (UTT)

TRILOK S. BHANDARI v. UNION OF INDIA

2006-11-14

B.C.KANDPAL, P.C.VERMA

body2006
JUDGMENT Delivered by Hon’ble P.C. Verma, J. By means of this writ petition, the petitioner has prayed for writ of mandamus commanding the respondents to prepare a select list strictly in accordance with the directions issued by the Hon’ble Apex Court in the case of Union of India Vs. Vipinchandra Hiralal Shah, (1996) 6 SCC Page 721, followed by Ahmedabad Bench of Central Administrative Tribunal in the case of Nausingbhai A. Chandhari Vs. Union of India as the respondents have done in case of identically situated State Forest Service Officers of Gujarat State. Further, a writ of mandamus is sought commanding the respondents to adjust the U.P. State Forest Service Officers who were selected and promoted in pursuance of select list of 1996 and allotted year 1992 and do not figure in select list of 14.9.2004 and appointment (by promotion) notification dated 08.07.2005 may be adjusted as per directions issued by the Hon’ble Apex Court in Vipinchandra Hiralal Shah case (Supra). 2. The recruitment to the Indian Forest Service (hereinafter referred to IFS) is done in accordance with the provisions contained in Indian Forest Service (Recruitment) Rules, 1966. Rule 4(2) of the aforesaid Rules provide the recruitment to service as under:- (a) by competitive examination (aa) by selection of persons from amongst the emergency commissioned officers and short service commissioned officers of the Armed forces of the Union who are commissioned after 1.11.1962 but before 10.01.1968 and are release in the manner specified in sub-rule (1) of Rule 7(A) (b) by promotion of substantive members of the State Forest Service. The percentage of promotion of State Forest Service Officers is 33-1/3%. 3. The promotion from the post of the State Forest Service Officers is made according to the provisions of Indian Forest Service (Appointment by promotion) Regulations, 1966. The petitioner and other 28 persons were promoted by notification No. F. No. 17013/20/95-IFS-II dated 06.09.1996 issued by Government of Uttar Pradesh. All the persons mentioned in the list who were promoted vide order dated 07.09.1996 had joined the I.F.S. and were posted accordingly and all these officers have been allotted the year of allotment as 1992 and their seniority in the I.F.S. was also fixed by G.O.I. MOEF Order No. 17012/20/95 – IFS II dated 16.09.1996. All the persons mentioned in the list who were promoted vide order dated 07.09.1996 had joined the I.F.S. and were posted accordingly and all these officers have been allotted the year of allotment as 1992 and their seniority in the I.F.S. was also fixed by G.O.I. MOEF Order No. 17012/20/95 – IFS II dated 16.09.1996. The name of the petitioner and few other officers promoted vide order dated 07.09.1996 were not mentioned in the select list dated 14.09.2004 and appointment (by promotion) notification dated 08.07.2005 which has been prepared in compliance of the direction issued by the Central Administrative Tribunal which reads as under:- “The impugned select list is accordingly quashed only on a short point that this was a combined select list of vacancies which arose during a period of merely 12 years. We direct the respondents to prepare yearwise select list by holding a review D.P.C. in accordance with law. Officers who have already been promoted on the post of impugned select list need not however, be reverted but their further continuance as members of I.F.S. cadre would depend on the outcome of review DPC which shall be held by the respondents within a period not exceeding two months from the date of communication of this order.” 4. Against the judgment of the Central Administrative Tribunal, Allahabad Bench, dated 10.09.1997 the State of U.P. preferred the writ petition before the High Court of Allahabad mainly on the ground that there is no provision for preparation of year-wise selected list in Regulation 5 (1) of the Regulations and the words “ordinarily” cannot be held to be mandatory and the clubbing of vacancies was duly justified. The High Court dismissed the writ petition on 11.05.2001. 5. The learned counsel for the petitioner contended that the High Court did not decide the issue regarding the continuance of the officers already promoted by the impugned order in O.A. No.1120 of 1996. 6. It was also contended by the learned counsel for the petitioner that rules and regulations framed in exercise of powers conferred by All India Services Act, 1951 and holding the field in the matter of recruitment/appointment in I.F.S. are known as Indian Forest Service (Recruitment) Rules, 1966, Indian Forest (Cadre) Rules, 1966 and Indian Forest Service (Appointment by Promotion) Regulations, 1966. The promotion quota in Indian Forest Service U.P. Cadre is to be determined in accordance with the Rule-9 of I.F.S. (Recruitment) Rules, 1966. The said Rule provides promotion quota to the extent of 33-1/3 per cent of the senior duty post as provided under the provisions of I.F.S. Cadre Rules, 1966 and the I.F.S. (Appointment by Promotion) Regulations, 1966. The Secretary of Forest, U.P. Government, on 20.2.2002 forwarded necessary details to the Union Public Service Commission, New Delhi indicating therein the number of vacancies pertaining from the year 1985 up to the year 2000. The Union Public Service Commission by its letter dated 13.03.2002 further clarified the position and issued necessary guidelines for preparation of year wise vacancies from 1985 to 1995-96 for promotion of I.F.S. Cadre in Uttar Pradesh in pursuance to the aforesaid judgment of the High Court dated 11.05.2001. 7. The Central Administrative Tribunal, Allahabad Bench in its judgment dated 03.09.2003 passed in O.A.No. 343 of 2003 recorded the finding that the applicant is not entitled for the relief claimed. It was also recorded that the Tribunal in order dated 10.09.1997 has already directed that officers who have been promoted on the basis of the impugned select list shall not be reverted. However, their further continuance shall be subject to the outcome of the review DPC. The continuance of the applicant is subject to the review of the select list by the DPC. 8. The petitioner has also stated that eight persons could not be promoted in the promotion held in the year 1996 but subsequently in the year 2004 the review committee while promoting the persons against the 33 available vacancies promoted the eight persons by giving them notional promotion as the incumbents were either retired or expired before the review DPC. 9. Learned counsel for the petitioner contended that the State Government was justified in recommending the select list prepared by the State Government year-wise upto the year 2000 in order to save the officers already promoted which was inconformity with the directions given by Hon’ble Apex Court as well as the Central Administrative Tribunal, Circuit Bench, Ahmedabad (Gujarat). 10. 9. Learned counsel for the petitioner contended that the State Government was justified in recommending the select list prepared by the State Government year-wise upto the year 2000 in order to save the officers already promoted which was inconformity with the directions given by Hon’ble Apex Court as well as the Central Administrative Tribunal, Circuit Bench, Ahmedabad (Gujarat). 10. It is not in dispute that in the State of Gujarat, the Union of India, Ministry of Environment and Forest accepted the judgment of Central Administrative Tribunal and adjusted all those State Forest Service Officers who had been appointed to the I.F.S. Cadre on the basis of the said select list against the future vacancies while in State of U.P. the respondents have taken another stand, as stated in the counter affidavit, that in the case of Union of India & Others versus Vipinchandra Hiralal Shah, the Hon’ble Supreme Court, as a matter of concession, did not disturb the seniority standing because the Apex Court decided the matter in 1996 and the Apex Court, in its wisdom, came to the conclusion that it would not be proper to disturb the seniority of the affected officers promoted to the IFS, Gujarat Cadre during 1980 to 1986. The judgment of the Hon’ble Supreme Court in the case of Vipinchandra Hiralal Shah was confined to the facts and circumstances of that case and would not have a direct application to the facts of the present case since the Central Administrative Tribunal in its orders dated 10.09.1997 read with the orders of the High Court dated 21.05.2001 set aside the earlier selection and directed that year-wise Select Lists be prepared. Further, in the case of Gujarat, while Select Lists had been prepared for some of the intervening years, in the present case of Uttar Pradesh, there was no Select List at all from 1985 to 1995-96 and thus both these cases are unique and distinct from each other. Further, the benefit of judgment rendered by the Hon’ble Supreme Court in the case of Union of India & Others versus Vipinchandra Hiralal Shah has already been pressed before the Central Administrative Tribunal, Lucknow Bench, Lucknow in OA No.328 of 2004 filed by one Sri S.V.Sharma which was dismissed on 19.08.2004. Further, the benefit of judgment rendered by the Hon’ble Supreme Court in the case of Union of India & Others versus Vipinchandra Hiralal Shah has already been pressed before the Central Administrative Tribunal, Lucknow Bench, Lucknow in OA No.328 of 2004 filed by one Sri S.V.Sharma which was dismissed on 19.08.2004. Similarly, the order of Central Administrative Tribunal, Ahmedabad Bench is confined to the facts and circumstances relating to the IFS promotions of Gujarat State and are distinct from the present case of Uttar pradesh. 11. The Writ Petition No.488 (S/B) of 2003, Bhuwan Chandra versus Union of India and three Ors. has been dismissed by this Court in limine on 14.10.2003. The finding recorded in the order reads as under :- “In the case of Union of India & others V/s Vipinchandra Hiralal Shah decided by the Supreme Court on 25th October 1996, the Apex Court took the view that selection of candidates by clubbing of vacancies was wrong. That every year a Select List should be prepared. That selection should be made for vacancies occurring in each year separately. However, in the case of Vipinchandra Hiralal Shah, the Apex Court did not disturb the selection based on clubbing of vacancies for the period 1980 to 1986 on the ground that several years had passed and it would not be proper to disturb the seniority position in 1996. Taking a clue from the Direction No.7 given by the Apex Court in the above judgment of Vipinchandra Hiralal Shah (supra), the petitioner has argued before us that his selection in 1996 also relates back to 1992 and consequently, his selection on the basis of clubbing of vacancies should not be disturbed. We do not find any merit in this argument. In the above judgment of Vipinchandra Hiralal Shah (supra), it has been held by the Apex Court, in clear terms, that all selections should be made for vacancies occurring in each year separately. In view of the above judgment, it is not possible to accept the arguments advanced on behalf of the petitioner for protecting his seniority on the ground that it relates back to 1992. Firstly, the judgment of the Apex Court is binding on this Court. Petitioner was selected on the basis of clubbing of vacancies, which is held by the Apex Court to be arbitrary. Therefore, we cannot allow the wrong to continue. Firstly, the judgment of the Apex Court is binding on this Court. Petitioner was selected on the basis of clubbing of vacancies, which is held by the Apex Court to be arbitrary. Therefore, we cannot allow the wrong to continue. Secondly, in the case of Vipinchandra Hiralal Shah (supra), as a matter of concession, the Apex Court did not disturb the seniority standing because the Apex Court decided the matter in 1996 and the Apex Court, in its wisdom, came to the conclusion that it would not be proper to disturb the seniority of 1980 to 1980. Therefore, that judgment has no application to the facts of the present case. Further, in this matter on facts, we find that the dispute was raised before Central Administrative Tribunal vide Application No.539 of 2002. The selection of the Petitioner is in 1996, may be with effect from 1992, but, the dispute has been decided well in time. Thirdly, in view of the judgment of the Supreme Court that all selections, in future, should be based on year-wise vacancies, it is not possible for this Court to interfere with year-wise selection process, which the respondents, herein, will have to follow in the light of the above judgment of the Supreme Court. Accordingly, we do not see any reason to interfere with the impugned judgment reason to interfere with the impugned judgment dated 3rd September 2003 delivered by C.A.T. Writ Petition is accordingly disposed of.” 12. The above finding shows that the Court did not consider to protect the petitioner in the light of the judgments of Apex Court and dismissed the petition on the ground of claim of seniority. Therefore, this judgment is not coming in way in disposal of the present writ petition as the perusal of the quoted portion of the judgment shows that the issue was relating to seniority and for that reason the writ petition was dismissed. 13. It has been stated by the respondents in the counter affidavit that they have implemented the direction given in the judgment by the Central Administrative Tribunal, Ahmedabad Bench (Gujarat) in the State of Gujarat. 13. It has been stated by the respondents in the counter affidavit that they have implemented the direction given in the judgment by the Central Administrative Tribunal, Ahmedabad Bench (Gujarat) in the State of Gujarat. The averment made by the petitioner in Para 16 of the writ petition reads as under:- “That the Respondent No. 1 have implemented the said judgment in case of Gujarat State Forest Service (by holding Review DPC) vide MoEF Notification No.: FNO 17013/4/2002-IFS II dated 5.11.2004, which is being annexed herewith and marked as Annexure No.10 to this writ petition.” The reply given by the respondent No.1 of the aforesaid averment in Para-9 of the counter affidavit reads as under:- “That in reply to the contents of Para No. 16 in the writ petition, need no comments”. 14. So, it is not open for the Union of India to treat the members to be appointed from State Provincial Forest Service to the Indian Forest Service differently State-wise. 15. The petitioner as well as other persons like the petitioner, who were selected as per final seniority list of 1996 and were promoted were entitled to be adjusted against those eight vacancies against which the notional promotions were made as the notional promotions were only for the selection grade and for pensionary benefit. It is also clarified here that the petitioner has also retired, therefore he is also entitled for notional promotion allocating him year of allotment as per rules. 16. For the reasons recorded above, we allow the writ petition agreeing with the view taken by Central Administrative Tribunal, Ahmedabad Bench which is in the light and spirit of the judgment of Hon’ble the Supreme Court in Vipinchandra Hiralal Shah’s case (supra) and declare that the petitioner and other persons who were promoted in the year 1996 (w.e.f. 1992) stand adjusted as they have been promoted according to Rules on the recommendation of Union Public Service Commission by the Union of India.