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2010 DIGILAW 912 (GAU)

Chittaranjan Das v. State of Assam

2010-12-07

MADAN B.LOKUR, UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. The instant writ appeal has arisen out of the judgment and order dated 28.3.2008 passed by the learned Single Judge in W. P. (C) No. 2227 of 2006. 2. The brief facts of the case is that the Appellant, Sri Chitta Ranjan Das, who belongs to Scheduled Caste community and is holding the post of Assistant Conservator of Forests, a feeder post of Deputy Conservator of Forests, filed the aforesaid writ petition challenging the notification dated 22.2.2006 (Annexure-E to the writ petition) issued by the Joint Secretary to the Government of Assam, Environment and Forests Department whereby nine Assistant Conservator of Forests, the Respondent Nos. 5 to 13 herein, have been promoted to officiate in the rank of Deputy Conservator of Forests with effect from the date of their joining against posts created vide Memo No. FRE.159/2005/23 dated 18.2.2006, on the ground that before promoting the Respondent Nos. 5 to 13 to the post of Deputy Conservator of Forests, no selection was held under the provisions of the Assam Forest Service (Class-I) Rules, 1942, (for short hereinafter referred to as 'Rules'), and though the Appellant came within the zone of consideration, his case for promotion to the post of Deputy Conservator of Forests was not considered. 3. In the writ petition, the Appellant also prayed for directing the State Respondents to consider his case for promotion to the post of Deputy Conservator of Forests created vide aforesaid communication dated 18.2.2006 against which the Respondents 5 to 13 were promoted. 4. The State Respondents as well as the Respondent No. 8 contested the writ petition by filing their respective affidavit in opposition wherein they denied the allegations of the writ Petitioner Appellant, more particularly, the State Respondents contended in their affidavit, inter alia, that the private Respondents who were on the verge of retirement have been promoted by creating 10 Nos. The State Respondents as well as the Respondent No. 8 contested the writ petition by filing their respective affidavit in opposition wherein they denied the allegations of the writ Petitioner Appellant, more particularly, the State Respondents contended in their affidavit, inter alia, that the private Respondents who were on the verge of retirement have been promoted by creating 10 Nos. of personal posts of Deputy Conservator of Forests attached to the Chief Conservator of Forests and Conservator of Forests and the retirement/relinquishment of the posts of the Deputy Conservator of Forests by those incumbents will result no vacancies for promotion in any manner since they have been promoted against the ex-cadre personal posts without adopting the principle of selection process for rendering service more than 13 years and they are on the verge of their retirement as well as their promotion are not likely before their date of superannuation. Further plea of the State Respondents is that the order of promotion of the private Respondents to ex-cadre posts cannot be quashed as the writ Petitioner Appellant did not challenge the notification dated 18.2.2006 (Annexure-7 to the affidavit in opposition of the Respondent No. 3) wherein it has been specifically stated that ten posts of Deputy Conservator of Forests were created to accommodate 10 Nos. of Assistant Conservator of Forests who have completed 13 years of service. 5. The Respondent No. 8 in his affidavit also denied the allegations of the writ Petitioner Appellant and stated therein that he has been posted as Deputy Conservator of Forests in State cadre by applying quota prescribed for the Scheduled Caste candidates. The number of posts required to be reserved for the said community works out to 3.7 i.e. four posts. It is further stated that the claim of the Petitioner Appellant for consideration of promotion to the post of Deputy Conservator of Forests against reserved posts is not maintainable since the quota prescribed for Scheduled Castes category has already been fulfilled. Excess promotion than the quota prescribed would naturally disturbed the statutory prescription for reservation. As such, no further provision can be made for Scheduled Caste candidates. 6. The questions arose before the learned Single Judge were whether for promoting to an ex-cadre post being personal post, the Service Rules will apply or not and whether holding of Departmental Promotion Committee for promotion to ex-cadre post in sine qua non. 7. As such, no further provision can be made for Scheduled Caste candidates. 6. The questions arose before the learned Single Judge were whether for promoting to an ex-cadre post being personal post, the Service Rules will apply or not and whether holding of Departmental Promotion Committee for promotion to ex-cadre post in sine qua non. 7. The learned Single Judge after hearing the respective counsel for the parties and taking note of the fact that during tendency of the writ petition, private Respondents have already retired, held that Rules though contemplate that the post of Deputy Conservator of Forests is a selection post and the selection is to be made on the basis of merit and efficiency, the posts to which the private Respondents were promoted being ex-cadre posts and since the Petitioner without making any challenge to the creation of those posts prayed for quashing the order of promotion of the private Respondents, he is not entitled to any relief as sought for. However, the learned Single Judge while refusing to grant relief sought for by the writ Petitioner Appellant made an observation, inter alia, that in the event the Petitioner is entitled to be considered for promotion against the cadre posts, he is to be considered for promotion by the authority provided he came within the zone of consideration. 8. The instant appeal is filed by the writ Petitioner Appellant beyond the period of limitation as prescribed for and we have condoned the delay. 9. Heard Mr. S.K. Singh, the learned Counsel for the Petitioner as well as the learned Govt. Advocate, Assam. 10. Mr. Singh while urging for admission of the appeal would contend that the learned Single Judge did not consider that the notification relating to the promotion of the private Respondents were issued violating the provisions of Section 5(a) of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 which provides seven percent reservation of vacancies for the members of the Schedule Castes and thus at least one post of Deputy Conservator of Forests is to be reserved for the Scheduled Caste incumbent out of nine posts of Deputy Conservator of Forests to which the Respondent Nos. 5 to 13 have been promoted. 5 to 13 have been promoted. He further urges that even at the time of filling up of ex-cadre posts by way of promotion, the Respondent authority is required to follow the provisions of Service Rules and the selection has to be done by the Departmental Promotion Committee which in the instant case has not been done by the authority and the learned Single Judge also failed to consider that aspect. 11. The learned Govt. Advocate, Mrs. Goel, while supporting the impugned judgment and order passed by the learned Single Judge contended that the posts to which private Respondents were promoted are not only ex-cadre posts, but also ex-cadre personal posts which would be abolished after the retirement of the private Respondents and according to her, such ex-cadre posts being personal posts, the provisions of Service Rules are not applicable. Hence, question of violation of provisions of Rules does not arise. She also submits that the Service Rules are required to be followed when promotion is made against the cadre posts. Admittedly in the instant case the private Respondents were not promoted against any cadre post created by Service Rules. According to him, the learned Single Judge rightly held that since the writ Petitioner Appellant did not challenge the order dated 18.2.2006 by which ten ex-cadre posts were created by the authority, the relief sought for cannot be granted. 12. We have gone through the impugned judgment as well as pleadings of the parties. According to us, the learned Single Judge rightly held that those posts of Deputy Conservator of Forests were created for a particular purpose beyond the cadre strength and such creation has not been challenged by the writ Petitioner. As the challenge of the writ Petitioner Appellant is the order of promotion of the private Respondents in the ex-cadre posts, we are unable to quash the said promotion order as the Service Rules have no application in the case of promotion against the ex-cadre posts. More so, during the tendency of the writ petition, admittedly almost all the private Respondents have retired from service and as those posts are personal posts, it would not be possible to promote the writ Petitioner Appellant against any of those posts. 13. The application of general doctrine of promotion to a cadre post is not applicable for promotion on officiating basis in an ex-cadre post. 13. The application of general doctrine of promotion to a cadre post is not applicable for promotion on officiating basis in an ex-cadre post. But right to be considered for such post is there when the post is going to be filled up by the persons equally situated. In the instant case, the private Respondents were promoted to ex-cadre posts which were created for a specific purpose like to give promotion to the persons who were in the eve of superannuation without any promotion. Hence, on that count, the learned Single Judge very rightly dismissed the writ petition of the Petitioner. 14. It is settled by this time that the Government which is carrying on the administration must have the choice to promote a person or a class of persons in ex-cadre post to man the administration on officiating basis and it is also possible to promote them following the selection process, as prescribed in the cadre Rules. In the instant case also, an employer exercised its powers for providing the benefit of promotion to a special class of employees who have completed 13 years of service in the post of Assistant Conservator of Forests and continued therein without any promotion. 15. We are in agreement with the decision of the learned Single Judge, inter alia, that the Petitioner is not entitled to the relief sought for, but unable to accept the observations of the learned Single Judge, inter alia, that "the post being ex-cadre without there being any challenge made to the decision of the Government to create ex-cadre post for the purpose of promoting the private Respondents and without challenging the creation of such posts cannot claim that the Petitioner is also to be considered for promotion against such posts even if he comes within the zone of consideration". The Petitioner Appellant in his writ petition stated that he had also completed 13 years of service in the post of Assistant Conservator of Forests and eligible to be considered for promotion to the ex-cadre post like the private Respondents. When he has completed 13 years of service in the post of Assistant Conservator of Forests, he cannot challenge the notification relating to the creation of ex-cadre posts and such challenge would debar him from consideration to the post of Deputy Conservator of Forests. When he has completed 13 years of service in the post of Assistant Conservator of Forests, he cannot challenge the notification relating to the creation of ex-cadre posts and such challenge would debar him from consideration to the post of Deputy Conservator of Forests. According to us, an employee has right to be considered for promotion to a higher post even on ad hoc basis if he is within the zone of consideration. The said principle is also equally applicable in case of ex-cadre post. Therefore, we are of further opinion that the observation of the learned Single Judge is contrary to the settled law and should not be treated as precedent. As it is the admitted position that creation of ten posts of Deputy Conservator of Forests is subject to condition that those posts were personal to the respective incumbent concerned who were accommodated against those posts and no vacancy would result on relinquishment of those posts in any manner. The aforesaid fact would be evident from the letter of the Joint Secretary to the Govt. of Assam, Environment & Forest Department dated 8.3.2006 (Annexure-8 to the affidavit of the Respondent No. 3, the Principal Conservator of Forests). It is also admitted fact that the private Respondents have already retired during the tendency of the writ petition and on retirement of those Respondents, no such post remains vacant. Therefore, it would not be proper on our part to go into the merit of the case as that would be mere an academic discussion due to the fact that even if we decide the case in favour of the Petitioner, then also he cannot be appointed against those posts as those posts no longer remain in force. As the writ Petitioner fails to make out a case for quashing the order of promotion of the private Respondents, there is no merit in the appeal. Accordingly, the appeal is dismissed. No order as to costs.