Union of India & Anr. Arjun Behera & Ors. … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No. 38585 of 2023 Union of India & Anr. Arjun Behera & Ors. ….. Vs. ….. Petitioners Mr. Jateswar Nayak, CGC Opposite Parties Order No. 1 CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN
Decision
ORDER 08.01.2024 This matter is taken up through hybrid mode. 2. Heard Mr. Jateswar Nayak, learned Central Government Counsel appearing for the petitioners-Union of India. 3. The petitioners-Union of India have filed this writ petition seeking to quash the order dated 03.07.2023 passed in O.A. No.260/00414 of 2021, by which the Central Administrative Tribunal, Cuttack Bench, Cuttack, while quashing the order dated 08.09.2021 passed by the authority in Annexure-5 to the said O.A., allowed the O.A. with a direction that opposite party no.1 is entitled to be promoted/appointed notionally to the post of Indian Forest Service with effect from the date when his juniors were promoted to IFS and the consequential order to the effect is directed to be issued within a period of sixty days from the date of receipt of the order. 4. Mr. Jateswar Nayak, learned Central Government Counsel appearing for the petitioners-Union of India contended that the Page 1 of 5 Tribunal has committed gross error apparent on the face of the record by extending the benefit of promotion to opposite party no.1 at par with his juniors. Therefore, the order so passed by the Tribunal is liable to be quashed. 5. Considering the contentions raised by learned Central Government Counsel appearing for the petitioners and having gone through the materials available on record, this Court finds that opposite party no.1 claims promotion from the post of State Forest Service to Indian Forest Service of the Odisha cadre for the select list 2008-A to 2014. The Selection Committee Meeting (SCM) for promotion from State Forest Service (SFS) to Indian Forest Service (IFS) of Odisha Cadre for the select list of 2008A to 2014 was held under the Chairmanship of UPSC on 05.02.2018. The name of opposite party no.1 was considered and recommended by UPSC against the select list 2009, 2010, 2011, 2012, 2013 and 2014 “provisionally” subject to clearance of disciplinary proceedings. Based on the recommendation of UPSC, the Ministry of Environment, Forests and Climate Change, Government of India, New Delhi, vide order dated 06.04.2018, notified the select list 2008-A to 2014. A charge-sheet dated 06.04.2018 under Rule 15 of OCS (CC&A) Rules, 1962 was issued against opposite party no.1. Therefore, in the appointment notification issued on 17.05.2018, the name of opposite party no.1 did not figure as his name was made unconditional within the validity of the select list in reference to Rule 7(4) of the IFS (Appointment by Promotion) Regulation, 1966. On 31.07.2018, on attaining the age of superannuation, opposite party no.1 retired from service. The disciplinary proceedings initiated against him was closed/dropped on Page 2 of 5 19.06.2020. Accordingly, he submitted representation on 09.08.2020 for his promotion/appointment to IFS. The SCM for promotion to IFS for the select list of 2015-2018 was again convened on 17.12.2020. The name of opposite party no.1 was recommended against the select list of 2015. Notification to the above effect was issued by the Ministry on 02.02.2021, wherein the name of opposite party no.1 was shown at Serial No.2 for appointment/promotion to IFS against select list of 2015. The Ministry issued appointment notification on 26.02.2021 wherein his name did not figure, as by that time he got retired from service on reaching the age of superannuation w.e.f. 31.07.2018. 6. Aggrieved by the above notification, opposite party no.1 filed O.A. No.310 of 2021 before the Central Administrative Tribunal, Cuttack Bench, Cuttack, which was disposed of on 28.07.2021 with a direction for consideration and disposal of his representation, which he had submitted on 09.08.2020. Thereafter, the petitioners considered the representation and rejected the same vide order dated 08.09.2021 stating that since opposite party no.1 was no more member of the service on the crucial date, he could not be considered by the Ministry for induction into Indian Forest Service. Aggrieved thereby, opposite party no.1 filed O.A. No.260/00414 of 2021 seeking to quash the order dated 08.09.2021 holding the same as illegal, arbitrary and contrary to the provisions of law and further to issue direction to the petitioners to fix his pay, revise his pension and pensionary benefits and pay the arrears by giving effect to the notification under Annexure-A/1 to the said O.A. 7. On being issued notice by the Tribunal, the petitioners Page 3 of 5 herein filed counter affidavit opposing to the prayer of opposite party no.1 stating, inter alia, that in terms of Rule 7(4) of the IFS (Appointment by Promotion) Rules, 1966, the validity of the select list remains in force till 31st day of December of the year, in which the meeting of the select committee was held with a view to prepare the list under sub-regulation 1 of Regulation 5 or up to 60 days from the date of approval of the select list by the Commission under clause (1) of Regulation-5, as the case may be, finally approved under clause (2), whichever is later subject to declaration of the name as unconditional by the concerned State Government. Since the Government of Odisha did not issue such unconditional certificate due to pendency of disciplinary proceedings, the name of opposite party no.1 was not included in the appointment notification dated 17.05.2018. Although, the name of opposite party no.1 was recommended by the UPSC in the subsequent selection committee meeting, his name did not figure in the final appointment notification dated 26.02.2021 as per the rules, since opposite party no.1 was no more in service. 8. Mr. Jateswar Nayak, learned Central Government Counsel appearing for the petitioners vehemently contended that the case of Baikuntha Bihari Mishra is not similar to the case of opposite party no.1. He further contended that when the case of opposite party no.1 was considered for promotion to Indian Forest Service, a departmental proceeding was pending against him and by the time departmental proceeding was closed/dropped, he had retired from service. Therefore, his promotion could not have been considered. In course of hearing, this Court called upon learned Central Government Counsel to produce any material showing that during Page 4 of 5 pendency of departmental proceeding, no promotion can be granted to opposite party no.1. But, he could not produce any material nor pleaded anything to the above extent before the Tribunal to consider the same. As such, a new plea has been advanced before this Court by filing this writ petition, which cannot be sustained in the eye of law. Therefore, the Tribunal held that the benefit of promotion to Indian Forest Service extended by the Tribunal, vide order dated 17.01.2023 in O.A. No.92 of 2021 preferred by Baikunth Bihari Mishra is similar to the case of opposite party no.1. Since nothing was produced before the Tribunal that any proceeding was pending against opposite party no.1, the plea advanced that opposite party no.1 had retired from service, was rightly dispelled by the Tribunal. In absence of any material to disapprove the order of the Tribunal, this Court is not inclined to entertain this writ petition, particularly when the petitioners cannot make out a new case by urging something which was not on record at the time of argument before the Tribunal. 9. In the above view of the matter, this Court is not inclined to interfere with the order dated 03.07.2023 passed by the Tribunal in O.A. No.260/00414 of 2021. Accordingly, the writ petition merits no consideration and the same is accordingly dismissed. Signature Not Verified Alok Digitally Signed Signed by: ALOK RANJAN SETHY Reason: Authentication Location: ORISSA HIGH COURT Date: 09-Jan-2024 15:02:58 (DR. B.R. SARANGI) ACTING CHIEF JUDGE (M.S. RAMAN) JUDGE Page 5 of 5