Vijay Kumar vs Union Of India & Others

Sunil Kumar Sinhaa, Member A

[Heard through Video Conferencing]

The OA has been preferred by an Indian Forest Service(IFS) officer of Jharkhaand Cadre appointed by way of promootion and allotted 2002 batch

praying for the following reliefs:-

“(a) For grant of selection grade pay scale P.B.- 4, Rs. 37400-67000, GP 8700, Level 13 after completion of 133 years of service w.e.f.

01.01.2015.

(b) For grant of regular promotion to the post of Conservator of Forest, pay scale 37,400-67,000, GP 8900, Level 13A for completion of 14 years of

service w.e.f. 01.01.2016.

(c) For grant of regular promotion to the scale of the post of Chief Conservator of Forest, pay scale 374000-67000 GP 10000 (Pay matrix level-14)

after completion of 18 years of seervice w.e.f. 01.01.2020.

(d) For payment of difference of arreears of salary on account of aforesaid promotion as a consequential relief.

(e) The applicant prays for allowing the cost of litigation incurred in filing the instant application.

(f) The applicant prays for other relieef/reliefs, direction/directions as this Hon’ble Tribunal may deem fit forr doing conscionable justice to the

applicant under the facts and circumstances of the instant case.

(g) To, pass such other order/orders which Your Lordships may deem fit and proper in the interest of justice.â€​

The applicant’s case as per OA is that after induction into IFS and beeing allotted the 2002 batch he was entitled to the Selection Grade and

promotions to the posts of Conservator of Forests (CF) and Chhief Conservator of Forests(CCF). According to the guidelines dated 18.11.2002 issued

by Ministry of Environment and Forest, Govt. of India (Annexure 7) an IFSS officer becomes eligible for Selectiion Grade after 13 years of serrvice

and for promotion to the post of Conservator of Forests after 14 years of service and to the post of Chief Conservator of Forests after 18 years of

service. His servicees in the IFS were confirmed by the GoI with effect from 24.05.2014 (Annexure - 6). Despite fuulfilling the eligibility conditions,

he was not granted the Selection Grrade or the promotions though some of his juniors were granted Seleection Grade and also promoted to the post of

CF. Applicant has referrred to the case of his junior Shri S.R. Naatesh, an IFS officer of 2003 battch in the Jharkhand cadre, who was giiven

Selection Grade w.e.f. 06.12.2016 and promoted to the post of Conservator of Forests w.e.f. 27.02.2018. Applicant has pleadeed that despite clear

guidelines and fulfilling the eligibility conditions, denial of Selection Grade and the promotions to him was arbitraary, against the rules and infringement

of Article 14 and Article 16 of the Constitution.

Respondents contested the OA and filed written statement in which they held that the applicant was not granted the Selection Grade because his

services in IFS waas confirmed by Government of India only on 08.11.2019. Further, as per the Govt. of India guideliines, grant of Selection Grade

and promotions to higher ranks was suubject to availability of vacanciees in these grades. The case of applicaant for grant of Selection Gradde was

duly considered by the DPC inn the meeting on 23.12.2019 and recommended for grant of Selectiion Grade w.e.f. 01.01.2015 or from the date of

availability of vacanccy, whichever was later (Annexuure-B). As the recommendation of the DPC could not get approval froom the competent

authority the applicaant could not be granted the Selection Grade. Respondents, citing the judgment of Hon’ble Supreme Court in the Union of

India Vs. K. V. Janki Raman, maintained thaat an employee had no right to promootion; he had only a right to bee considered for promotion. As the

appplicant was duly considered for grant of Selection Grade, the OA waas not maintainable.

In the rejoinder, applicant menntioned that the Government of India confirmed him in IFS with effeect from 24.05.2014 vide their order dated

08.11.2019 (Annexure 6). The State Government sent the proposal for his confirmation on 08.02.2017 (Annexure-4) after a delay of almost three

years from the date he had become eligible for confirmmation. He cannot be penalized for the delay on part of the State Government in sending the

proposal for confirmation. The applicaant also pleaded that respondeent authorities were adopting a differeential yardstick in granting prommotions to

the members of the Indian Forest Service as many other IFS officers were promoted to the poost of Conservator of Forests witthout the order of

confirmation from Govt. of India. In support of his assertion, the applicant enclosed a GoI order dated 01.01.2021 (Annexure 12) confirming

promootee IFS officers of 2006 batch and the Jharkhand Government notifications dated 28.01.2017 and 277.02.2018 (Annexure 13 series)

promooting most of these officers as Conservator of Forests. The applicaant also refuted the contention of respondents in the WS that he hadd only a

right to be considered for promotion and the DPC had duly considered his case. The applicaant averred that since the DPC had foound him fit and

recommended his case for grant of Selection Grade, the action of the State Government in not approving the recommendation and thus denying hiim

the promotion was arbitrary and discriminatory.

During the hearing on 08.03.2021, this Bench enquired from the learned counsel for respondentts regarding the likely reasons behindd the State

Government not taking a decision on the DPC recommendation for grant of Selection Grade to the applicant. Getting no clear response, the Bencch

expressed a hope that the Respondent State would take a deccision on the recommendation before the next date fixed on 12.044.2021. On the next

date, the learned counsel for applicant informed that the State Government had paassed an order on 30.03.2021 granting Selection Grade to the

applicaant with effect from 21st March, 2015.

During final hearing, we heard the rival counsel on remaining prayerrs of the applicant and considereed the submissions and material on record.

After the grant of Selection Grade, the applicant’s prayers surviviing for adjudication in this OA are his entitlement for promootions to the post

of Conseervator of Forests and Chief Conserrvator of Forests in terms of rulees and law.

Indisputably, the applicant, beeing allotted 2002 batch of IFS and confirmed in the service with effect from 24.05.2014, was eligiblee for

appointment to Selectioon Grade on completion of 13 years of service i.e. with effect from 01.01.2015. The DPC meeting held on 23.12.2019

recommended for grant of Selection Grade to the applicaant w.e.f. 01.01.2015 or fromm the date of availability of vacanccy, whichever was later.

The applicant retired on 30.09.2020. Howevver, the respondent State grannted him Selection Grade vide order dated 30.03.2021 after the appllicant

had preferred this OA and this Beench made a specific enquiry into the reasons for delay.

Further, the applicant’s junior Shri S. R.Natesh, an IFS officer of 2003 batch in the State, was promoteed to the post of Conservator of Forests

vide order dated 27.02.2018. Thus, the applicant remained in the seervice on a lower post as compared to his junior from 27.02.2018 till his retirement

on 30.09.2020. Observation of Hon’ble Supremme Court in Bal Kishan Vs. Delhi Administration and Anr., reportted in AIR 1990 SC 100, is

rellevant to the instant case and reads as under.

“10. In the service, there could bee only one norm for confirmation or promotion of persons belonging to the same cadre. No junior shall be

confirmed or promoted without connsidering the case of his senior. Any deviation from this principle will have demoralizing effect in service apart

from being contrary to Art 16(1) of thhe Constitution.â€​

Respondents have argued that the applicant’s case for grant of Selectiion Grade was not considered earlier for want of the GoI’s order

confirming his service. Howeverr, the applicant has averred that the State Government had granted promotions to higher posts to severaal IFS officers

without the GoI’s confirmation order and has annexeed copy of relevant orders in support of his assertion. The confirmmation order in respect of

fifteen promoted IFS officers of Jharkhhand cadre allotted 2006 batch was issued by GoI vide order dated 1st January,2021 (Annexure-12), however,

most of these officerrs were promoted to the post of Conservator of Forests by the Govt. of Jharkhand vide their notifiications dated 28.01.2017 and

27.02.2018 (Annexure-13 Series). The respondents have not contessted these facts either in pleadings or submissions. In view of these background

facts, we feel that the applicant who was allotted 2002 batch and whose confirmation order was received in Novemmber, 2019 could also have been

treated on same footing. Howevver, for reasons best known to the State Government, the applicaant’s case was not considered annd he continued

to hold a lower post while his juniors in service were promoted to higher posts.

The Government of India guidelines (Annexure-7) on promootion of IFS officers to the post of Conservator of Forests reads as undder .

“IV. Promotion to the post of Connservator of Forestss

The members of the Service who aree working in the Selection Grade and have completed 14 years of service shall be eligible for appointment in the

post of Conservator of Forests in the scale of Rs 16400--450--20000 at any time during the year of their eligibility , subject to availability of vacancies

in this grade. The Screeninng Committee to consider officers for promotion in this scale would conssist of the Chief Secretary, Principall Secretary

looking after the workk of Forests and Principal Chief Conservator of Forests in the State Government and Additional Principall Chief Conservator of

Forests whereveer available as members.â€​

As evident, grant of Selection Grade and completion of 14 years of service are essential eligibiility condition for promotion of IFS offficers to the

post of Conservator of Forests. The applicant was granteed Selection Grade with effect from 21.03.2015 vide order dated 30.03.2021 after his

retiremennt. After grant of the Selection Grade the applicant has become notionally eligible for promotion to the poost of Conservator of Forests with

effect from 01.01.2016 and could be promoted to the post froom the date of availability of vacanccies but latest by the date of promotion of his junior

to the post. The above guidelines require the case of officers for promotion to the post of Conservator of Forests being considered by a Screening

Comm ittee. The requirement could be met appropriately keeping in view the fact that the DPC meetting held on 23.12.2019 had recommended

applicant’s case for graant of Selection Grade.

As regards promotion to the post of Chief Conservator of Forests, the Govt. of India guidelines dated 18.11.2002 (Annexure/7) lays doown the

following.

“V. Promotion to the post of Chief Conservator of Forests

The zone of consideration for promotion in this grade may consist of the officers who have commpleted 18 years’ service. Promotion of officers

thus cleared could be made at any time during the relevant year provided vacancies in this grade are available. The Screening Committee to consider

officers for promotion in this scale will consist of the Chief Secretary, Principal Secretaary looking after the work of Forests, Principal Chief

Conservator of Forests and one officer in the grade of Additional Principal Chief Conservatoor of Forests or holding higher post in the Forest

Department in the State Government, as members.â€​

As evident, availability of vacancies is as essential a condition as the length of service for promotion to thhe post of Chief Conservator of Forests.

Indisputably, the applicant fuulfilled the condition of 18 years of servvice with effect from 01.01.20220 but there is no averment by the appplicant

about the availability of vacancies to the post or any infringgement of his Constitutional/legal rights on account of promootion of any of his juniors to

thee post before his retirement. In view of these acts, we find that the applicant has not been able to establiish his right for promotion to thhe post of

Chief Conservator of Forests.

The respondent State Governmment had granted promotion to the poost of Conservator of Forests to several officers junior to the applicaant and

in some cases even without receiving the confirmation order from the Govt. of India. Sincce the DPC meeting held on 23.12.2019 had considered and

recommended the case of applicant for grant of Selection Grade with effeect from 01.01.2015 or from the date of availability of vacancies

whichhever was later, it can be safely said that there was nothing adverse against him during this period. The applicant, for non-consideration of his

case for promotion, remainned on a lower post compared to his juniors. This is against the law annd also in violation of the constittutional provisions

under Article 16. Inn the background of aforesaid facts and discussions, we are inclineed to hold that the applicant waas entitled for promotion to the

post of Conservator of Forests. We are of the view that interest of justice will be served if the applicannt is promoted to the post of Conserrvator of

Forests from the date of availability of vacancies after 01.01.2016 but latest by the date of promotion of any of his juniors.

Accordingly, the respondents are directed to consider and promoote the applicant to the post of Conservator of Forests from the date of availability

of vacancies after 01.01.2016 but latest by the date of promotion of any of his juniors as per rules within four monthhs from the date of receipt of thhis

order. Before allowing the OA with these directions, we deem it proper to examine the issue of costt in this case .

In this regard, it is important to note that despite the case of applicaant for grant of Selection Grade being considered and recommended by the

DPC on 23.12.2019 the respondent State did not appprove the same till his retiremeent on 30.09.2020 and cleared it only affter filing of this OA and

our specific queries on this matter. The responndent State also promoted IFS officers junior to the applicant to the poosts of Conservator of Forests,

inn many cases without the order of connfirmation from the GoI, but did not consider the case of applicaant on the ground that the connfirmation order

in respect of him w as not received from the GoI. Further, the respondent State could have considered the prayer of applicant for promotion to the

post of Conservator of Forests when we gave them opportunity on 08.03.2021 but they confined their appproval to the recommendation for thee

Selection Grade. In view of these facts, we are inclined to hold that the conduct of responddent State was arbitrary and discrimminatory which

compelled the applicant to seek intervention of the Triibunal and that in the interest of justice OA should be allowed with coost to the respondent State.

Accordingly, the OA is allowed with aforesaid directions and a cost off Rs 10,000/- to the respondent State (respondent no. 2).