Shrinath Singh vs The State of Bihar and Others

Udai Pratap Singh, J.—By this writ application, filed in July 1982, the petitioner has challenged the notification contained in annexures, 7, 8 and 10, dated 30.12.81, 8.2.82 and 24.5.82, respectively. There were termed as promotion-list issued under the signature of the Chief Conservator of Forest, Bihar, Ranchi. A prayer has been made to quash these annexures as being violative of Articles 14 and 16(1) of the Constitution of India as also on the ground of being violative of the Principles of natural justice. The petitioner was appointed as a Forester in the year 1955 and was confirmed in the said post No. 1.3.68. The gradation list (annexure-3) mentioned the position of the petitioner at serial No. 320 whereas respondents 10 to 69 were placed between serial Nos. 328 to 599. Thus according to the said gradation list, respondents 10 to 69 stood junior to him in the cadre and the grade of Forestor. There was undue delay in selection and, consideration of the case of the petitioner for promotion as Range Officer of Forests. Only on 28.9.81 he was asked to appear before a Selection Board for consideration of his promotion No adverse entry made in the character roll of the petitioner was ever communicated to him except that when he was going to appear before the Selection Board on 28.9.81, just an hour and a few minutes before his appearance at the Board at about 11 am. on 28.9.81, adverse remark with regard to the period 1980-81 was served upon him. The definite case of the petitioner is that before this date, he was never communicated any adverse remark made in the past. He however, prepared his explanation in reply to the adverse remarks communicated to him for the year 1980-81 and wanted to place it before the Selection Board, but it was refused to be accepted. The explanation, was, therefore, sent to the respondents by registered post.

The Selection Board consisted of four members including three Divisional Forest Officers of Daltonganj South Division, Daltonganj North Division and Latehar Division. It was headed by the Field Director, Sri R.P. Singh as its Chairman. At the relevant time, the petitioner was posted as Forestor under tie aforesaid Field Director, Sri R.P. Singh of the Project Tiger, Palamau Tiger Reserve, Daltonganj. He was the controlling authority of the petitioner. Admitted fact is that the petitioner was also the president of the Bihar Subordinate Forest Service Association, Daltonganj South Unit and on 16.8.81, just a month before he was asked to appear at the Selection Board, a decision had been taken in the said meeting of the Association that an agitation should be launched for various demands of the Subordinate service members of the Forest Department and under the signature of the petitioner, notices were published. Notices were signed by the petitioner as the Chairman of the struggle committee. The petitioner, therefore alleged that this caused annoyance and the Field Director was, therefore, prejudiced against the petitioner. The said Field Director was although serving in the same capacity even, in the year 1979-80 but no adverse remark was even communicated to the petitioner. The sudden communication of the adverse remark communicated to the petitioner just an hour and a few minutes before he was going to appear at the Selection Board was made in order to deny him reasonable opportunity to make suitable or effective representation before he could be considered for promotion by the Selection Board.

As stated above, the representation of the petitioner, not entertained by the Selection Board, had been sent by a registered post on 18.11.81 to the Chief Conservator of Forest, wherein he denied the allegations and prayed for expunging the adverse remark communicated to him. Without disposing of the representation, a notification dated 30.12.84 contained in annexure-7 was issued by the respondents, promoting as many as 90 officers in which 30 of them were junior to the petitioner. He was thus superseded in his promotion to the post of a Range Officer, in the scale of Rs. 335 to 555 (revised Rs. 730-1080). Awaiting the disposal of the said representations two further notifications dated 8.2.82 and 24.5.82 contained in annexures 8 and 10 were published, all the time superseding him.

The promotion lists contained in the notification (annexures 7, 8 and 10) were challenged primarily on the ground that reliance was placed by the Selection Board on the adverse remarks of past 10 years, which were never communicated to the petitioner excepting the one for the year 1980-81 communicated to him just an hour and a few minutes before he was to appear at the Selection Board on 28.9.81. It was next contended that the Selection Board should hot have been headed by Sri R.P. Singh, the Field. Director of the Tiger project, because he was prejudiced against the petitioner.

There is no specific denial in paragraph 7 of the counter affidavit that the adverse remark of past 10 years were not taken into account by the Selection Board. There is no specific averment that the adverse remark has been communicated to the petitioner ever in the past before 1981.

It is now well settled, by an authoritative decision of the Supreme Court in the case of Gurdial Singh Fijji Vs. State of Punjab and Others, , that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to report. Such an opportunity is not an empty formality its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified.

Thus the adverse report in the confidential roll could not be acted upon to deny the promotional opportunity unless it could be communicated to the petitioner so that he may have an opportunity to explain the circumstances leading to the report. Such an opportunity not being an empty formality, the proceeding conducted by the Selection Board in considering the case of the petitioner on the basis of the adverse report of past 10 years must be held. to be illegal. It was not in accordance with the Rules of natural justice. In the absence of a proper pleading, I cannot speculate, whether the petitioner was not found suitable otherwise.

The petitioner is due to retire from the service some times in November ''85. Although, he filed the present application in this Court in 1982, but for no fault of his, the petitions could be heard earlier. By order dated 28.7.82, when the writ application was admitted by this Court the prayer for stay was rejected but it was made clear that respondents 1 to 4 must keep one post of the Range Officer vacant so that in the event of success of the petitioner in the writ application, he may not be made to suffer on the ground that there was no vacancy left in the cadre. In this view of the matter, I direct that respondents 1 to 4 would give to the petitioner his due place in the promotion list dated 30.12.81, contained in annexure-7. This, however, will not affect the position of other who have already been promoted by virtue of the promotion list contained in annexures 7, 8 and 10 but since injustice has been done to the petitioner and he is due to retire in November 1985, he must be given his due place in the first promotion list dated 30.12.81, contained in annexure-7.

The writ application is accordingly allowed but there will be no order as to costs.