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Madhya Pradesh High Court · body

2013 DIGILAW 632 (MP)

Onkar Prasad Tripathi v. State of M. P.

2013-05-13

K.K.Trivedi

body2013
ORDER 1. This order will also govern the disposal of Writ Petition No.13396/2012(S), Writ Petition No.13303/2012(S), Writ Petition No.13481/2012(S), Writ Petition No.13489/2012(S), Writ Petition No.13610/2012(S), Writ Petition No.14030/2012(S), Writ Petition No.14576/2012(S), Writ Petition No.260/2013(S), Writ Petition No.292/2013(S), Writ Petition No.321/2013(S), Writ Petition No.331/2013(S), Writ Petition No.426/2013(S), Writ Petition No.438/2013(S), Writ Petition No.470/2013(S), Writ Petition No.553/2013(S), Writ Petition No.554/2013(S) and Writ Petition No.677/2013(S), as a common question is involved in all these petitions. However, for the purposes of this common order facts are taken from Writ Petition No.290/2013 )Onkar Prasad Tripathi v. State of M.P. and others). 2. The petition is directed against the order dated 3.1.2013 issued by respondents posting the petitioner, a Forest Range Officer, in working plan, alleging that such a posting of the petitioner was not permissible in view of the decision rendered by this Court in Writ Petition No.7121/2010(S) decided on 12.10.2010. It is further contended that since under the new policy made for posting of Forest Range Officer in working plan, an amendment was made and exemption from such posting granted under the earlier policy was made applicable in the new policy, no such order of posting of petitioner in working plan could have been issued. It is contended that by a circular dated 12.12.2011 while making amendment in the new policy of posting in working plan, it was reiterated that the benefit of exemption from posting in the working plan granted under the earlier policy will remain operative, therefore, the order impugned could not have been issued and the petitioner could not have been sent on working plan. Thus, it is contended that the order posting the petitioner in working plan as contained in Annexure P-1 is bad in law. It is further contended that so far as the petitioner in this writ petition is concerned, a modified order of posting was issued by the respondent No.2 in his respect only on 11.7.2012 and the petitioner was posted in Forest Range Ghunghuti Territorial Forest Division Umaria, therefore, such a posting of petitioner by the impugned order is per se illegal. It is, thus, contended that the order is liable to be quashed. 3. The respondents while filing the return have contended that the policy decision was taken by the State Government to post Forest Rangers in working plan as per the requirement vide a new policy dated 25.3.2011. It is, thus, contended that the order is liable to be quashed. 3. The respondents while filing the return have contended that the policy decision was taken by the State Government to post Forest Rangers in working plan as per the requirement vide a new policy dated 25.3.2011. In the said policy, it was specifically said that Forest Rangers whether recruited by promotion or direct recruitment were to be posted strictly in order of seniority in the working plan. It was further contended that those who were earlier exempted from posting in the working plan under the earlier policy were also to be posted in working plan strictly in order of seniority. It was categorically said that on account of age or otherwise no exemption would be available to the Forest Rangers from posting in the working plan. Such a policy decision was taken, new policy was formulated superseding all earlier policies and the policy was made applicable from the date of its publication. Posting in the working plan is the requirement in terms of the directives of the apex Court and, therefore, if such guidelines are issued, they have the force of law. It is further contended that after making such policy since in accordance to seniority, the petitioner was one who was required to be posted in the working plan, the posting order was rightly issued. Certain persons have approached this Court and have obtained the interim stay on earlier occasion, therefore, the order was required to be issued in respect of other persons like petitioner, therefore, it is contended that no illegality was committed by the respondents in posting the petitioner on working plan. In respect of earlier writ petition, it is contended that since an amendment was made in the earlier policy deleting the provisions of grant of exemption from posting in the working plan prospectively, but those who were already granted exemption were sent to work in the working plan, therefore, this Court has interfered in the order passed by the respondents and has held that in view of the prospective amendment in the policy, right accrued to those petitioners under the existing policy could not have been withdrawn. This being a completely different situation, the petitioner would not be entitled to any relief in the writ petition, in view of the changed circumstances and the fact that a new policy is made. This being a completely different situation, the petitioner would not be entitled to any relief in the writ petition, in view of the changed circumstances and the fact that a new policy is made. It is, thus, contended that the entire petition being based on misconceived and misleading facts deserve to be dismissed. 4. Heard learned counsel for the parties at length and minutely perused the record. 5. The sole question which is required to be examined is whether the petitioner would be entitled to benefit of any exemption from posting in the working plan or not, in terms of the amendment made in the new policy as has been introduced and placed in the policy on 12.12.2011? A perusal of the new policy dated 25.3.2011 Annexure P-12 makes it clear that the policy was made superseding all earlier policies and the orders and it contains specific condition that at no cause or reason, exemption from posting in the working plan would be granted. A simple meaning of the new policy was that whosoever was working on the post of Forest Ranger was required to be posted in the working plan. The apex Court in the case of T.N. Godavarman Thirumulkpad v. Union of India and others [Writ Petition (Civil) No.202 of 1995, decided on 12.12.1996], passed a specific order directing constitution of certain committees by each State Government to keep watch on the sustainable capacity of the forests of the State qua saw mills and timber based industry. For the compliance of the order of the apex Court, instructions were issued by the Ministry of Environment and Forest, pursuance to which working plan was made. This particular aspect was noted by the State Government that certain Forest Rangers were required to be posted in the working plan. Accordingly, the policy decision was taken in the year 2001 for posting of the Forest Ranger in working plan. In the said policy, exemption was made available to the Forest Ranger in certain circumstances. However, this particular policy was amended in the year 2003 and the amended portion was withdrawn subsequently in the year 2005. All these actions were taken with prospective effect and not retrospective effect. However, when new policy was made on 25.3.2011 superseding the earlier policies, the exemption from posting in the working plan was completely removed and withdrawn which was again reinserted by amendment dated 12.12.2011. 6. All these actions were taken with prospective effect and not retrospective effect. However, when new policy was made on 25.3.2011 superseding the earlier policies, the exemption from posting in the working plan was completely removed and withdrawn which was again reinserted by amendment dated 12.12.2011. 6. Now the question is whether such an amendment is to be treated as prospective or retrospective. The law is clear that an amendment can be made with retrospective effect in any Scheme, Act or Rules and in certain circumstances even the accrued right could be withdrawn, but if there is nothing stated in the order amending the provisions or in the amendment itself, all such amendments are to be treated as prospective. A bare perusal of amendment dated 12.12.2011 makes it clear that the exemption from posting in the working plan granted to the Forest Rangers was reinserted with certain specific words. It was said that the exemption if was granted to the Forest Ranger under the prevalent policy, the said exemption will remain operative. Thus, in fact amendment dated 12.12.2011 was to be treated as retrospective at least from the date the new policy was made. Now it is to be examined what sort of exemption was granted by the State Government. The amended provisions say that those who have been granted benefit of exemption under the previous policy would be entitled to said exemption and they will continue to get the benefit of such exemption, but rest of the persons who have not been granted exemption would not be entitled to such exemption. Meaning thereby the accrued rights were protected, but something which was prescribed in the policy and which was subsequently withdrawn was not said to be reinserted. There is a difference between the accrued right and the right simply available on account of making of policy. 7. It is not the case of the petitioner that he was granted an exemption under the old policy from posting in the working plan. However, the respondents have also not demonstrated that petitioner would not have been granted exemption under the previous policy and an order of posting in his respect of working plan could have been issued. This makes it further clear that respective amendment was made to protect certain accrued rights, but not conferring any right on any person. However, the respondents have also not demonstrated that petitioner would not have been granted exemption under the previous policy and an order of posting in his respect of working plan could have been issued. This makes it further clear that respective amendment was made to protect certain accrued rights, but not conferring any right on any person. This is also clear from the wordings in the order dated 12.12.2011 where it is categorically said that those Forest Rangers, who come within the zone of consideration for their posting in working plan in terms of their seniority willnot be granted any exemption (Translated in English by Court). 8. It is not the case of the petitioner that he could not have been posted in working plan on earlier occasion because of the exemption granted to him. There was no occasion for such posting of the petitioner and, therefore, the claim of exemption could not be made by the petitioner under the then prevalent policy. It is also not made clear by the petitioner that he could have been posted otherwise in the working plan in terms of his seniority on earlier occasion, but was not posted only on account of exemption clause in the previous policy. It is also not made clear in the return that in terms of the seniority of the petitioner, he has become liable to be posted in working plan only in the year 2013. The correctness of the policy is not under challenge in the present writ petition, but it has to be seen that there is an object to be achieved by making posting of persons in the working plan. Whether a person who is going to retire shortly could be posted in working plan or not, has not been explained though these facts have been alleged in certain writ petitions. Discharge of duties in working plan is an important function and those who are going to retire shortly are not required to be posted in the working plan as no useful purpose would be served by their posting in the working plan. Discharge of duties in working plan is an important function and those who are going to retire shortly are not required to be posted in the working plan as no useful purpose would be served by their posting in the working plan. Though the question has been suggested in the return by respondent as to, on what date the right is said to be accrued in favour of the petitioner to claim examption, but no material has been placed on record to indicate that petitioner could have been posted in the working plan on earlier occasion or not. Only this much is said that he was not given any exemption from posting in working plan pursuance to the earlier policy and, therefore, he is not going to be benefited by amendment made in policy dated 25.3.2011 on 12.12.2011. What was the reason of not posting the petitioner in the working plan on earlier occasion and whether he was differed from the posting in working plan only because of the exemption clause in previous policy or not, is not explained in the return. That being so, it would be difficult for this Court to believe that such a person, who has reached upto the age of 57 years as per the declaration made, could have been posted in working plan even after attaining the age of 48 years. It is notworthy that exemption from posting in the working plan in the previous policy was granted to those Forest Rangers who have completed the age of 48 years. That being so, if the petitioner was not posted in working plan pursuance to the previous policy only because of his crossing the age of 48 years, in the considered opinion of this Court in fact the benefit of exemption under the previous policy was deemed granted to the petitioner. If such an exemption was deemed granted, in terms of the amendment made in the new policy dated 25.3.2011 on 12.12.2011, the petitioner would be entitled to the benefit of exemption as is already accrued in his favour by virtue of the operation of such a policy. 9. Learned counsel for the petitioner has placed reliance in the case of State of Madhya Pradesh and others v. Suresh Kumar Upadhyaya [ 2011(II) MPWN 75 = 2011(2) MPLJ 134 ]. 9. Learned counsel for the petitioner has placed reliance in the case of State of Madhya Pradesh and others v. Suresh Kumar Upadhyaya [ 2011(II) MPWN 75 = 2011(2) MPLJ 134 ]. However, since the question considered in the said case was only the prospective or retrospective nature of amendment made in the policy, petitioner is not going to be benefited by the decision of this Court in the aforesaid case. Learned Government Advocate has heavily place reliance in the case of Vinod Gurudas Raikar v. National Insurance Co.Ltd. and others [ (1991)4 SCC 333 ], and has contended that in view of the law laid down by the apex Court, a right accrued under the earlier policy will not become a right accrued in fact unless the same is conferred. There is a difference between a right existing in the earlier policy and by virtue of repeal of the said policy, it cannot be said that any accrued right has been withdrawn. With great respect to the law laid down by the apex Court, it is to be held that the respondents themselves could not demonstrate by placing any material on record to show that no exemption whatsoever was granted to the petitioner even under the deemed clause as per the prevalent policy at the relevant time. If the petitioner was not one who was in the zone of consideration for posting in the working plan at the time when the previous policy was in vogue but was not posted in working plan at that time only because of exemption provided in the said policy, the right was deemed to be conferred on him. This fact was required to be pleaded specifically with the reasons by the respondents as they have all the records in their possession. Otherwise it has to be held that the petitioner was not posted in the working plan under the previous policy because of the exemption granted to those Forest Rangers who have crossed the age of 48 years. 10. Now the difficulty which the respondents have pointed out in posting the officers in the working plan is required to be looked into. 10. Now the difficulty which the respondents have pointed out in posting the officers in the working plan is required to be looked into. It is contended by the respondents in their return that 16 centres of working plan have been established with at least 5 Forest Rangers in each centre and out of 80 Forest Rangers to be posted in the said working plan only 25 have been posted as all others are not willing to accept the posting in the working plan. The respondents are in fact required to examine and scrutiny the case of every Forest Ranger and if the Forest Rangers so promoted were earlier not posted in the working plan only because of crossing the age of 48 years, in view of the specific provisions of exemption made in the previous policy, they are not required to be posted now in the working plan. However, there may be others available who could be posted in working plan and, accordingly, after scrutiny of the cases of each and every Forest Rangers in this respect, the order of posting could be issued by the respondents. 11. In view of the discussions made herein above and keeping in view that this Court while entertaining the writ petitions has granted an interim stay against the order dated 3.1.2013, which has remained in operation till now, it would be appropriate to direct the respondents to re-screen the cases of each and every petitioner in all these writ petitions for the purposes of posting the said officers in working plan, and while doing so, the respondents will keep in mind the observations made herein above as also will strictly follow the policy made by the State Government. If it is found that the petitioner was not exempted from posting in working plan in terms of the then prevalent policy, till the date of its amendment and withdrawal of the said exemption from the previous policy, the respondents would be free to post the petitioner in the working plan. This order will not come in their way to post the petitioner in such circumstances in the working plan, as per the new policy. This exercise be completed within a period of two months from the date of order. This order will not come in their way to post the petitioner in such circumstances in the working plan, as per the new policy. This exercise be completed within a period of two months from the date of order. However, since the order dated 3.1.2013 was not implemented in respect of petitioner, the same will not be implemented and a fresh order of posting would be issued in respect of petitioner, in case it is found that he is not entitled to grant of exemption in posting in the working plan. As has been observed herein above, those who are going to retire shortly, will not be posted in the working plan. In cases of such persons who are to retire shortly, the order dated 3.1.2013 would stand quashed in so far as such persons are concerned in respect of their posting in the working plan. 12. The petition and all other analogous petitions stand disposed of accordingly, however, there shall be no order as to costs. ............