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2007 DIGILAW 1511 (RAJ)

State of Rajasthan v. Subhash Chand Sharma

2007-08-09

R.M.LODHA, R.S.CHAUHAN

body2007
JUDGMENT 1. - Subhash Chand Sharma-respondent No. 1 herein approached the Central Administrative Tribunal, Jaipur Bench, Jaipur under Section 19 of the Administrative Tribunals Act. In his application, he prayed that down gradation of the remarks in the Annual Performance Appraisal Reports of the applicant for the year 1996-97 be declared illegal and that the authorities be directed to completely ignore the down gradation of such remarks and to treat the applicant as 'outstanding' or 'very good' in the year 1996-97. He also prayed that the authorities (respondents therein) be directed to reconvene the meeting of the screening committee for appointment to Indian Forest Service and by reconvening such screening committee, the vacancies of each year may kindly be directed to be redetermined separately and after redetermination of year-wise vacancies, a further direction may be issued to convene meeting of the screening committee for each year separately. He further prayed that the authorities may be directed to give future promotions to him considering him in the category of 'outstanding' or 'very good'. 2. The respondent No. 1 initially joined Rajasthan Forest Subordinate Service. He was promoted to the post of Assistant Conservator of Forests in October, 1979. Thereafter he was promoted in the senior scale of Rajasthan Forest Service on 16.8.1991. On the date he filed the original application before the Tribunal, he was holding the post of Technical Assistant to the Conservator of Forest. 3. According to the respondent No. 1, that being appointed in the State Forest Service in the year 1979, he became eligible to be considered for promotion to Indian Forest Service in the year 1988 as provided in Indian Forest Service (Appointment by Promotion) Regulations, 1966. The respondent No. 1 has alleged that for the purpose of appointment by promotion from the State Forest Service to Indian Forest Service, as per Regulation 5 of Regulations of 1966, it was incumbent upon the authorities to prepare the list of officers found eligible to be considered for promotion to Indian Forest Service. He alleged that in the year 1995-96, there was one vacancy for appointment to Indian Forest Service while in the years 1996-97 and 1997- 98, there were five vacancies for each of those years for appointment to Indian Forest Service. He alleged that though it was not permissible to club these vacancies, all vacancies were clubbed together and the eligibility list was prepared. 4. He alleged that though it was not permissible to club these vacancies, all vacancies were clubbed together and the eligibility list was prepared. 4. The present respondent No. 1 who was the original applicant before the Tribunal impleaded Union of India as respondent No. 2 and Union Public Service Commission as respondent No. 3. The State of Rajasthan through the Secretary, Department of Personnel and the Secretary to the Government of Rajasthan, Department of Forest was impleaded as respondent No. 4. 5. The Union of India did not chose to file any reply while the Union Public Service Commission and the Government of Rajasthan filed separate replies. 6. In the reply filed by the Government of Rajasthan, a preliminary objection about the maintainability of the original application was raised. While contesting the application on merits, the Government of Rajasthan set up the stand that in the meeting held on 28.7.1998, the selection committee under the Regulations of 1966 as amended vide the Indian Forest Service (Appointment by Promotion) Amendment Regulations, 1997 considered cases of 42 officers including the case of the original applicant in respect of 11 vacancies and the list of suitable officers in accord with the provisions of Regulation 5(1) was prepared. It was stated that since the meeting was held on 28.7.1998, the number of vacancies that existed on 1.1.1998 were considered. On consideration of the over all record and on fair assessment of the over all performance as reflected under the various columns of the Annual Performance Appraisal Reports, the merit was considered and then the select list was prepared which did not suffer from any legal error, 7. The Tribunal after hearing the original applicant and the counsel for the respondents therein disposed of the original application with the direction to the respondents to redetermine the vacancies for each of the years, 1995,96, 1996-7 and 1997-98 separately and hold review selection committee meeting for preparation of separate select lists for the said years keeping in view the promotion regulations as were applicable at the relevant time. It is this order passed by the Tribunal on 28.8.2000 that is impugned in the present writ petition. 8. Having considered the matter thoughtfully, we are of the view that the order passed by the Tribunal cannot be sustained for more than one reason. It is this order passed by the Tribunal on 28.8.2000 that is impugned in the present writ petition. 8. Having considered the matter thoughtfully, we are of the view that the order passed by the Tribunal cannot be sustained for more than one reason. For one, the Tribunal itself observed in its order that the counsel for the applicant did not argue on the question of clubbing of vacancies and yet the Tribunal on its own proceeded to examine this aspect without there being any argument by the counsel for the applicant in this regard. Whatever might have been the ground set up in the original application and the prayers made therein, the Tribunal ought to have confined itself to the contentions that were raised before it during the course of hearing and not enlarged the scope of the controversy which was not placed for consideration at the time of arguments. As a matter of fact, suo motu consideration of the question of clubbing of vacancies by the Tribunal has caused serious prejudice to the present petitioners who had no occasion to put forth their point of view in this regard during the course of oral hearing since no such argument was raised on behalf of the applicant. How could in the absence of any argument of clubbing of vacancies having been put forth by the applicant at the time of hearing, the Tribunal could go into this aspect. If at all it intended to examine this aspect, on its own, the Tribunal ought to have granted them opportunity to put forth their point of view and called for their explanation. The whole approach of the Tribunal in consideration of the question of clubbing of vacancies in the absence of any contention having been raised by the original applicant during the course of oral hearing suffers from serious legal infirmity. 9. To be precise, the Tribunal observed "...learned counsel for the applicant did not argue on the question of clubbing of vacancies and, therefore, had no occasion to help us in assessing the implications of amended Promotion Regulations on the alleged clubbing of vacancies...". The Tribunal further observed, "... to compound the matter, the respondent No. 1, the Union of India, the framer of the Promotion Regulations, have not filed any reply and the replies of respondent No. 2, the UPSC and respondents Nos. The Tribunal further observed, "... to compound the matter, the respondent No. 1, the Union of India, the framer of the Promotion Regulations, have not filed any reply and the replies of respondent No. 2, the UPSC and respondents Nos. 3 and 4, the State of Rajasthan have also not really gone into any detailed deliberations on the controversy and have not really to brought out the implications of the amendments in any comparative and worthwhile manner". Yet, the Tribunal went ahead with the question of clubbing of the vacancies. The direction given by the Tribunal, for what we have said above, to the respondents to redetermine the vacancies for each year i.e. 1995-96, 1996-97 and 1997-98 and hold review selection committee meeting for preparation of separate select lists for said years consequent upon its finding that the clubbing of vacancies was not proper, cannot be sustained.For two, on merits also the Tribunal misconstrued and mis-interpreted the Promotion Regulations of 1966 and the amendment therein by Regulations of 1997. 10. Indian Forest Service (Appointment by Promotion) Regulations, 1966 has been framed by the Central Government in pursuance of sub-rule (1) of Rule 8 of the Indian Forest Service (Recruitment) Rules, 1966 in consultation with the State Governments and the Union Public Service Commission. These regulations deal with the Constitution of the Committee for preparation of the list of such members of the State Forest Service found suitable for promotion to the Indian Forest Service. Regulation 5 prior to amendment in the year 1997 provides for preparation of a list of suitable officers in the following manner : 5. Preparation of a list of suitable officers.- [(1) Each Committee shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of the State-Forest Service as are held by them to be suitable for promotion to the Service. Preparation of a list of suitable officers.- [(1) Each Committee shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of the State-Forest Service as are held by them to be suitable for promotion to the Service. The number of members of the State Forest Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of period of twelve months, commencing from the date of preparation of the list, in the posts available for them under rule 9 of the Recruitment Rules, or [5 per cent of the senior posts] shown against items 1 and 2 of the cadre schedule of each State or group of States, whichever is greater.] (2) The Committee shall consider, for inclusion in the said list, the cases of members of the State Forest Service in the order of seniority in that service of a number which is equal to three times the number referred to in sub-regulation (1): Provided that such restrictions shall not apply in respect of a State where the total number of eligible officers is less than three times the maximum permissible size of the select list and in such case the Committee shall consider all the eligible officers: Provided further that in computing the number for inclusion in the field of consideration, the number of officers referred to in sub-regulation (3)shall be excluded : Provided also that the Committee shall not consider the case of a member of the State Forest Service unless, on the first day of January of the year in which it meets, he is substantive in the State Forest Service and has completed not less than eight years of continuous service (whether officiating or substantive) in [post(s) included in the State Forest Service. Explanation 1 The powers of the State Government under the third proviso to this sub-regulation shall be exercised in relation to the members of the State Forest Service of a constituent State, by the Government of the State : [Provided also that the officers belonging to any service referred to in item (ii) of Cl.(g) of rule 2 of the Recruitment Rules, shall not be eligible to be considered for promotion to any cadre other than the Union Territories cadre:] [Provided also that in respect of any released Emergency Commissioned or Short Service Commissioned Officers appointed to the State Forest Service, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officer shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of January of the year in which the Committee meets, in the post of Assistant Conservator of Forests.] [Explanation II In computing the period of continuous service for the purpose of this regulation there shall be included any period during which an officer has undertaken : (a) training in diploma course in the Forest Research Institute and Colleges, Dehra Dun; or (b) such other training as may be approved by the Central Government in consultation with the Commission in any other institution.] [Explanation. Ill Service in posts(s) included in the State Forest Service would also include service rendered in ex-cadre posts connected with forestry whether under the Government, or in- (i) a company association or body of individuals whether incorporated or not which is wholly or substantially owned or controlled by Government, a municipal or a local body, and (ii) an international organisation, an autonomous body not controlled by Government or a private body : Provided that the State Government certified that the officer concerned would have continued to hold a post included in the State Government Service but for his deputation to such ex-cadre post.] 11. A close look at Regulation 5(1) would show that the Committee constituted for making selection is ordinarily required to meet once in a year and prepare a list of the members of the State Forest Service as are found suitable by them for promotion to the Service. The word 'ordinarily' in Regulation 5(1) is not without significance. A close look at Regulation 5(1) would show that the Committee constituted for making selection is ordinarily required to meet once in a year and prepare a list of the members of the State Forest Service as are found suitable by them for promotion to the Service. The word 'ordinarily' in Regulation 5(1) is not without significance. It denotes that as far as possible, the Committee constituted to make selection shall meet once in a year. In 50 Advance Law Lexicon by P Ramanatha Aiyar, 3rd Edition, 2005, the word 'ordinarily' has been described being never used in reference to a case in which there is no exception. 'Ordinarily' cannot be constituted to mean 'not invariably'. The very use of the expression 'ordinarily' in Regulation 5(1) suggest that it is not imperative that the selection committee must meet once in a year without exception. 12. By the Indian Forest Service (Appointment by Promotion) Second Amendment Regulation 1997 sub-rule (1) has been substituted thus : "(1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Forest Service as are held by them to be suitable for promotion to the Service. The number of members of the State Forest Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held, in the posts available for them under Rule 9 of the Recruitment rules. The date and venue of the meeting of the Committee to make the selection shall be determined by the Commission: Provided that no meeting of the Committee shall be held, and no list of the year in question shall be prepared when; (a) there are no substantive vacancies as on the first day of January of the year in the posts available for the members of the State Forest Service under Rule 9 of the recruitment rules; or (b) The Central Government in consultation with the State Government decides that no recruitment shall be made during the year to substantive vacancies as on the first day of January of the year in the posts available for the members of the State Forest Service under Rule 9 of the recruitment rules; or (c) the Commission, on its own or on a proposal made by either the Central Government or the State Government, after considering the facts and circumstances of each case, decides that it is not practicable to hold a meeting of the Committee to make the selection to prepare a select list. Explanation In the case of joint cadres, a separate select list shall be prepared in respect of each State Forest Service". 13. Then in Sub-Regulation (2) and Sub-Regulation (3) for the word 'April' where-ever it occurs, the word "January' has been substituted. In Sub-Regulation (3) for the first proviso, the following proviso has been substituted : "Provided that a member of the State Forest Service whose name appears in the select list in force immediately before the date of the meeting of the Committee and who has not been appointed to the Service only because he was included provisionally in the select list shall be considered for inclusion in the fresh list to be prepared by the Committee, even if he has in the meanwhile, attained the age of fifty four years." 14. After Sub-Regulation (3) and before Sub-Regulation (3-AA), the following Sub-Regulation (3-A) has been inserted "(3-A) The Committee shall not consider the case of such member of the State Forest Service who had been included in an earlier select list and (a) had expressed his unwillingness for appointment to the service under Regulation 9 : Provided that he shall be considered for inclusion in the select list, if before the commencement of the year, he applies in writing, to the State Government expressing his willingness to be considered for appointment to the Service; (b) was not appointed to the Service by the Central Government under Regulation 10". 15. Once an existing provision is substituted, in law, it would be deemed that upon substitution, the earlier provision was never in existence. Substitution of provision is repeal of the earlier provision and its replacement by a new provision. Substitution, thus, combines repeal and fresh enactment. As a matter of construction of statute, upon the amendment of a provision by substitution, the substituted provision becomes non- existent and as if the said provision was not in existence. Substitution is in supersession of an existing provision. Seen thus, Regulation 5(1) of Regulations of 1966 having been substituted by amending Regulations, 1997, the Tribunal erred gravely in taking into consideration the substituted provision, particularly, in the fact situation where the committee met in July, 1998 when the erstwhile Regulation 5(1) had already been substituted and superseded by the new Regulation 5(1) vide Amendment Regulations, 1997. The substituted Regulation 5(1) effective from 1.1.1998 provides that the selection committee is ordinarily required to meet every year and prepare a list of such members of the State Forest Service as maybe held suitable for promotion to the Service. If for any reason, the selection committee does not meet and prepare a list of the members of the State Forest Service suitable for promotion to the Service in a particular year it cannot be said that in the subsequent year the vacancies of the earlier year cannot be clubbed with the vacancies of the year in which the meeting takes place. 16. The finding of the Central Administrative Tribunal that clubbing of vacancies could not have been done and that for each year the vacancies were required to be determined separately suffers from misconstruction of the provisions contained in the Regulations of 1966 as amended by Regulations of 1997. 17. 16. The finding of the Central Administrative Tribunal that clubbing of vacancies could not have been done and that for each year the vacancies were required to be determined separately suffers from misconstruction of the provisions contained in the Regulations of 1966 as amended by Regulations of 1997. 17. Incidentally, we may notice that by the interim order dated 13.12.2000, the operation of the judgment dated 28.8.2000 passed by the Central Administrative Tribunal was stayed and stay order has been in operation all these years. 18. We, accordingly, quash and set aside the order of the Central Administrative Tribunal dated 28.8.2000. Since the respondent No. 1 has not chosen to appear despite service though name of his counsel has been shown on Board, we direct the parties to bear their own costs.Writ Petition Allowed- Order of Tribunal set aside. *******