THE HONOURABLE MR v. A.Ramachandran2.Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.12.2007CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.R.SINGHARAVELUWrit Petition No.20844 of 20071.Mr.Virendra Singh Malik2.Ms.Mita Banerjee3.Tmt.P.Rajeswari4.Mr.A.O.Limatoshi5.Mr.K.K.Kaushal... PetitionersVs.1.A.Ramachandran2.Union of India, rep.by the Secretary to Government, Ministry of Environment and Forests, New Delhi-110003.3.Government of Tamil Nadu, rep.by Secretary to Government, Environment and Forests Department, Fort St.George, Chennai-600009.4.The Principal Chief Conservator of Forests, Chennai-600015.5.The Secretary, Union Public Service Commission, Dholpur House, Shajahan Road, Delhi.6. Shekhar Kumar Niraj7.Dr.S.Paulraj8.D.Arun9.The Central Administrative Tribunal, rep.by The Registrar, Central Administrative Tribunal, Chennai-600104.... Respondents* * * https://hcservices.ecourts.gov.in/hcservices/ Writ Petition filed under Article 226 of the Constitution ofIndia, praying to issue a Writ of Certiorarified Mandamus to call forthe records on the file of the 9th respondent in connection with theorder passed by him in O.A.No.590 of 2006, dated 1.6.2007 and also theorder passed by the second respondent in his proceedingsNo.F.18014/18/2004-IFS II, Government of India, Ministry ofEnvironment and Forests dated 16.3.2005 and quash the same and directthe respondents to take the 1st respondent to the original year ofallotment of 1991 and include him in the list in the appropriateplace.* * *For petitioners: Mr.R.Singgaravelan for M/s.M.Vinoth Singh MisraFor R.1: Mr.Vijayanarayanan, S.C. for Mr.M.RaviFor R.2: Mr.V.T.Gopalan, Addl.S.G. for Mr.P.Wilson, Asst.S.G.For R3 & R4: Mr.M.Sekar, Spl.G.P.For R.5: Mr.K.Sridhar, ACGSCFor R.6 to R8: No appearance* * *O R D E RELIPE DHARMA RAO, J.The first respondent was directly recruited as AssistantConservator of Forests in the Tamil Nadu Forest Service through theTamil Nadu Public Service Commission and joined service on 1.2.1981and he was confirmed in the said post with effect from 31.12.1983. Hewas selected to the Indian Forest Service by the Selection committeeat its meeting held on 24.3.1994 for selecting candidates for the fourvacancies that arose during the period and the first respondent hereinwas placed at Sl.No.4 and on approval of the Select List, he wasposted to the cadre post i.e. District Forest Officer, Thanjavur andjoined duty in the said cadre post on 18.6.1994 as per G.O.Ms.No.317,Environment and Forests (FR.Spl.A) Department, dated 8.6.1994 of thesecond respondent and thereafter, the name of the first respondent wasalso recommended to the first respondent for appointing him to theIndian Forest Service in the existing vacancy. However, before thepromotion proposals could be processed, one Syed Mustafa filedO.A.No.360 of 1994 before the Tribunal to include his name in theSelect List of 1992-93 and since the said O.A. was allowed by theTribunal on 31.8.1994, the name of the said Syed Mustafa was includedin the Select List of 1994 and since there were only four vacanciesand one vacancy had to be filled by the said Mustafa, the firstrespondent could not be appointed from the Select List of 1993-94. The https://hcservices.ecourts.gov.in/hcservices/ next Selection Committee meeting was held on 8.3.1995 at Madras, toprepare the Select List for 1995. There were four vacancies and thename of the first respondent was included as S.No.3 and based on theproposal submitted by the Government of Tamil Nadu, three officers,including the first respondent, were appointed to the Indian ForestService of the year 1995.2. In the meantime, the Government of Tamil Nadu, byG.O.Ms.No.202, Environment and Forests (FR.Spl.A.) Department, dated23.6.1995, ordered the first respondent to continue in the cadre post.Therefore, contending that if he had been rightly appointed to theI.F.S., even during 1994, he would have got about one year and sixmonths advancement in the year of allotment and seniority above theother two candidates selected along with him in the year 1995, thefirst respondent herein filed O.A.No.590 of 2006 before the Tribunal,praying to call for the records of the Government of India, inF.No.18014/18/2004 IFS.II, dated 16.3.2005 and quash the same to thelimited extent of re-determination of his seniority and year ofallotment and issue consequential directions to the other officialrespondents to re-determine his seniority in the IFS cadre of TamilNadu below Mr.Subrat Mohapatra and above Mr.Shekhar Kumar Niraj andfix the year of allotment as 1989, with consequential benefits. 3. The grievance of the applicant is that he should not have beendeprived of the benefit of his selection to the IFS for 1994 in viewof the inclusion of the name of Mr.Syed Mustafa, who was not at all inthe selection list of 1994, but included as per the order of theTribunal and in such an event, the official respondents ought to havecreated a supernumerary post for accommodating Mr.Syed Mustafa,instead, he was appointed at the cost of the first respondent therebyadversely affecting his positing and seniority for no fault of his.He has also contended that once his above grievance is redressed, thedate of his continuous officiation in the cadre post alone should betaken into consideration for determining the seniority and his year ofallotment in view of Explanation No.1 under Rule 3(2)(c) of the IndianForest Service (Regulation of Seniority) Rules. 4. It is also submitted that since he was posted to cadre posti.e. District Forest Officer, Thanjavur only after his name havingbeen included in the selection prepared by the Selection Committee andfrom the date on which he started officiating in the cadre post to thedate of his final confirmation in the senior grade, he continued tohold the said post without any break or interruption and thus he hassatisfied all the conditions for revision of his seniority and year ofallotment as mentioned above and therefore, he should be placeddirectly below Mr.Subrat Mohapatra of 1989 Batch, fixing the year ofallotment as 1989. 5. It is also submitted that his representations to the official https://hcservices.ecourts.gov.in/hcservices/ respondents had finally yielded partial relief to him, fixing hisseniority and year of allotment in the Indian Forest Service as 1990and inter-se seniority by placing him below Mr.D.Arun (SFS 1990), bythe Government of India, Ministry of Environment and Forests inF.No.18014/18/2004/IFS.II, dated 16.3.2005.6. The first respondent herein has also submitted before theTribunal that the Government of India in their LetterNo.F.18014/18/2004-IFS.II, dated 9.3.2005 addressed to the StateGovernment have sought information about junior most direct RecruitOfficer of IFS cadre of Tamil Nadu who had officiated continuously ina senior post from a date earlier than the date of officiation of theapplicant herein i.e. 9.6.1994, so that the seniority of the applicantis re-determined in the IFS and the Principal Chief Conservator ofForests, by their letter dated 14.3.2005, addressed to the StateGovernment, marking a copy to the Central Government has stated thatThiru Subrat Mohapatra,IFS of the year 1989 is the junior most directRecruit Officer of IFS cadre of Tamil Nadu who had continuouslyofficiated in a senior post from 17.3.1994. However, the PrincipalChief Conservator has also stated in the said letter that if the yearof allotment of the applicant has to be re-determined, his seniorityhas to be fixed below Sheker Kumar Niraj, who is the last directlyrecruited officer with year of allotment as 1989, which is not at allwarranted since the strict application of rules and law relating tore-determination of seniority of IFS with effect from the date ofcontinuous officiation in the cadre post would only enable theapplicant to be placed along with the officers whose year of allotmentis 1989 only next to the person whose date of officiation fallsearlier than that of the applicant.7. Relying on Rule 4 (4) of the IFS (Regulation of Seniority)Rules, 1968 read with proviso (b), the applicant would further submitthat his date of continuous officiation in the cadre post i.e.9.6.1994 is much earlier to Mr.Shekhar Kumar Niraj, who is the juniormost officer directly recruited with year of allotment as 1989, buthas commenced to officiate in a cadre post only from 25.3.1995 i.e.much later than the applicant; that though the Principal ChiefConservator of Forests seems to have recommended for the determinationof the applicant's year of allotment as 1989, videLr.Ref.No.A1/39515/2004, dated 14.3.2005, the Central Government hasdetermined his year of allotment as 1990 instead of 1989 without anybasis; that the State Government ought to have taken intoconsideration the fact that the applicant had been posted to a cadrepost only after the inclusion of his name in the select list of 1994and that the applicant was officiating in the said cadre postcontinuously from 9.6.1994 till the date of confirmation in the seniorgrade, without break or interruption and thus he has satisfied all theconditions stipulated for re-determination of seniority by countingthe period of his continuous officiation in the cadre post entitling https://hcservices.ecourts.gov.in/hcservices/ him to the fixation of year of allotment as 1989 and therefore he isaggrieved by the act of the Central Government in re-determining hisseniority by placing him below Thiru D.Arun, instead of placing himbelow Thiru Subrat Mohapatra (whose year of allotment is 1989) and byre-determining his year of allotment as 1990 instead of 1989 and eventhough he has represented the matter to the Central Government, noorders were passed. It is further submitted that such advancement inthe year of allotment as well as seniority position would enable himto attain Selection Grade benefits and promotion to the post ofConservator of Forests expeditiously. This claim of the applicant wasopposed by the respondents before the Tribunal, including the writpetitioners herein.8. However, the Tribunal, having found justification in therelief claimed by the applicant, has directed the official respondentsto determine the seniority and the year of allotment in the light ofthe principles set out in the order dated 29.12.2000 in O.A.No.1040 of1986 by taking into account the continuous officiation of theapplicant in the cadre post from 9.6.1994 and with such direction, theTribunal has set aside the impugned order dated 16.3.2005 to thelimited extent of determination of seniority and year of allotment ofthe applicant.9. Aggrieved, the respondents 6 to 10 before the Tribunal havecome forward to file the present writ petition stating that they areall direct recruitees, having been included in the list of IFS forthe year 1990 as per the ranking given by the Union Public ServiceCommission on merits; that the claim of the applicant for alterationin the year of allotment after the lapse of nearly 10 years is liableto be dismissed on the ground of delay itself. It is also stated thatthe order of the Tribunal is against the provisions of Indian ForestServices (Cadre) Rules, 1966 and the Indian Forest Service (Regulationof Seniority) Rules, 1997 and the Indian Forest Services (Appointmentby Promotion) Regulations, 1966.10. In this backdrop, now we have to see whether the Tribunal isright in issuing directions to the official respondents.11. Though, before the Tribunal, the Central Government hasresisted the claim of the applicant on the ground that he was notentitled to claim the benefit of officiation, since being contrary toRule 9(2) of the IFS (Cadre) Rules, 1966 read with Explanation-I toRule 3(2)(c) of the IFS (Regulation of Seniority) Rules, 1968, in thepresent writ petition they have supported the claim of the applicant,on the ground that Rule 3(2)(c) with its Explanation and the provisoin its strict application, would entitle the applicant to take intoaccount his officiation in the cadre post. This change of stand bythe Central Government was vehemently commented as opposed to law bythe learned counsel for the petitioners. However, the learned https://hcservices.ecourts.gov.in/hcservices/ Additional Solicitor General would rely on a judgment of theHonourable Supreme Court in P.NALLAMMAL ANOTHER vs. STATE [(1999) 6SCC 559] in support of his contentions wherein it has been held:"It is open to the State or Union of India or even a privateparty to retrace or even resile from a concession once madein the court on a legal proposition. Firstly, because theparty concerned, on a reconsideration of the propositioncould comprehend a different construction as moreappropriate. Secondly, the construction of statutoryprovision cannot rest entirely on the stand adopted by anyparty in the lis. Thirdly, the parties must be left free toaid the court in reaching the correct construction to beplaced on a statutory provision. They cannot be nailed to aposition on the legal interpretation which they adopted at aparticular point of time because saner thoughts can throwmore light on the same subject at a later stage."12. In view of the above judgment of the Honourable Apex Court,we have no hesitation to hold that the Union of India cannot be foundfault with in changing their earlier stance.13. Insofar as the contention of the writ petitioners that theorder of the Tribunal is against the IFS (Regulation of Seniority)Rules, 1997 is concerned, the same cannot at all be accepted sincethese Rules have come into force only from 1.1.1998 and prior to that,IFS (Regulation of Seniority) Rules, 1968 were in force and since theissue on hand pertains to the period prior to 1.1.1998, only the IFS(Regulation of Seniority) Rules, 1968 would apply.14. There is no denying of the fact that the first respondent isofficiating in the cadre post w.e.f. 9.6.1994 as the DFO, ThanjavurDivision till his date of appointment to IFS w.e.f. 9.1.1996. At thisjuncture, it is to be pointed out that the applicant's name wasincluded in the Select List of 1994 at Sl.No.4, prepared by theSelection Committee, in its meeting held on 24.3.1994. Therefore, itis clear that the first respondent is officiating in the cadre postonly after his name was included at Sl.No.4 in the Select List of1994 and therefore, it cannot, under any circumstance, be held to beviolative of any provisions governing the issue. From the materialsplaced on record, it is clear that the name of the applicant was inthe Select List of 1994, but he could not be appointed to IFS, sincethe name of Mr.Syed Mustafa was included in the Select List of 1994,in compliance with the directions of the Central AdministrativeTribunal in O.A.No.360 of 1994, dated on 31.8.1994 and all the fourvacancies available at that time were filled-up. 15. The learned counsel for the petitioner would vehemently arguethat since the applicant was a non-cadre and non-select list officer, https://hcservices.ecourts.gov.in/hcservices/ his officiating in cadre post, since being fortuitous in nature,cannot be taken into account for the purpose of fixing his seniorityin IFS. In support of his contentions, the learned counsel for thepetitioner would place reliance on the judgment of the Honourable ApexCourt in M.AMANULLAH KHAN vs. GOVERNMENT OF INDIA AND OTHERS [(2004) 7SCC 586]. 16. In the said judgment of the Honourable Apex Court, a non-select list officer was officiating in a cadre post for a periodbeyond six months without approval of Central Government and UPSC andtherefore, in terms of Rule 9 of Cadre Rules, the Honourable ApexCourt has observed that such officiation, being a fortuitous one,cannot be taken into account for the purpose of fixing his seniorityin IFS. There is no quarrel with regard to the above proposition laiddown by the Honourable Apex Court. But, in the case on hand, as hasalready been discussed supra, only after his name was included in theSelect List of 1994 at Sl.No.4, prepared by the Selection Committee,in its meeting held on 24.3.1994, the applicant was officiating in thecadre post w.e.f. 9.6.1994 as the DFO, Thanjavur Division till hisdate of appointment to IFS w.e.f. 9.1.1996. Therefore, the ratio laiddown by the Honourable Apex Court in the above said judgment, stronglyrelied on by the learned counsel for the petitioners, is factuallydistinguishable and therefore, cannot be made applicable to the factsof the case on hand. 17. The same argument is also applicable to the other judgment ofthe Honourable Apex Court in R.R.S.CHOUHAN AND OTHERS vs. UNION OFINDIA AND OTHERS [1995 Supp.(3) SCC 109] relied on by the learnedcounsel for the petitioner, wherein it was held that 'continuousofficiation in a senior post prior to the inclusion in the select listprepared under Regn.5 of Appointment by Promotion Regulations, cannotconfer any benefit on the officer in assignment of year of allotmentto him' since, as has already been discussed supra, the applicant wasofficiating in the post only after inclusion of his name in the selectlist of the year 1994. Therefore, this judgment of the HonourableApex Court is also very well distinguishable on facts and cannot bemade applicable to the facts of the case on hand.18. At this juncture, it is also to be pointed out that theofficiating of the applicant in the cadre post w.e.f. 9.6.1994 as theDFO, Thanjavur Division till his date of appointment to IFS w.e.f.9.1.1996 was never challenged by any of the parties and even though,before the Tribunal, the Union of India, has opposed the claim of theapplicant, now before us, they have corrected their stand, supportingthe claim of the applicant. 19. It is also brought to the notice of this Court that the orderof the Tribunal was implemented on 18.6.2007 by the respondents andthis Court has granted the stay, at the time of admission of the writ https://hcservices.ecourts.gov.in/hcservices/ petition, only on 19.6.2007, i.e. after implementing the orders of theTribunal and thus, virtually, the order of stay passed by this Courtwas not in a position to be complied with/implemented by the officialrespondents.20. We are also not able to appreciate and accept the strenuousarguments advanced on the part of the petitioners that the applicantis more influential and hence, was able to change his stand to suithis convenience, which was readily accepted by the officiatingrespondents. On a perusal of the entire materials placed on record,we are unable to find anything to charge the official respondents withfavouritism towards the applicant. Thus, when this Court is unableto find any deviation from the procedure prescribed under law by theofficial respondents, the judgment of the Honourable Apex Court inSTATE OF JHARKHAND AND OTHERS vs. AMBAY CEMENTS AND ANOTHER [2005 (1)CTC 223], relied on by the learned counsel for the petitioners doesnot come to their rescue. 21. Though his name figures at Sl.No.4 in the Select List of 1994and was also officiating in the cadre post thereafter, the applicantcould not be accommodated with IFS, due to the inclusion of the nameof one Syed Mustafa in the Select List of 1994 by virtue of the orderof the Tribunal in O.A.No.360 of 1994, dated 31.8.1994 and the saidorder cannot be pitted against the applicant, so as to deny his due. 22. The Tribunal has assessed all the facts and circumstances ofthe case in their proper perspective, and has arrived at anunerroneous conclusion of directing the official respondents todetermine the seniority and the year of allotment of the applicant andon re-appreciation of the entire materials placed on record and in thelight of the above discussion, we find no reason to cause ourinterference into such a well considered and merited order passed bythe Tribunal.In the result, this Writ Petition is dismissed, confirming theorder of the Tribunal. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarRao https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government of India, Ministry of Environment and Forests, New Delhi-110003.2.The Secretary to Government of Tamil Nadu, Environment and Forests Department, Fort St.George, Chennai-600009.3.The Principal Chief Conservator of Forests, Chennai-600015.4.The Secretary, Union Public Service Commission, Dholpur House, Shajahan Road, Delhi.5.The Registrar, Central Administrative Tribunal, Chennai-600104.+1cc to Mr.M.Vinoth Singh Misra, Advocate Sr 74939+1cc to Mr.M.Ravi, Advocate Sr 74837+1cc to Mr.P.Wilson, Advocate Sr 75248+1cc to K.Sridhar, Advocate Sr 74864RSV (CO)km/5.1. W.P.No.20844 of 2007