Dr. Vinod Kumar Sharma vs State of Punjab and others

N.K. Sodhi, J.—Petitioner started his career as a Veterinary Officer in the Animal Husbandry Department Government of Punjab in July, 1974. White he was working in this department, he was taken on deputation to the Forest Department and posted in the M.C. Zoological Park, Chhatbir, District Patiala (hereinafter referred to as the Zoological Park). After he had worked in the Forest Department for about 20 years, he was absorbed in this Department and posted against the vacant post of Joint Director. One Shri K,K. Moudgil, who was a member of the Indian Forest Service (for short IFS) retired in October, 1997 from the cadre post of Director and the vacancy so caused was to be filled up. Petitioner who is a Veterinary doctor and was working as Joint Director in the Zoological Park, was given the charge of the post of Director by order dated October 29, 1997. It is a common case of the parties that the petitioner is neither a member of the Indian Forest Service nor a IFS Class-II officer which is a feeder cadre for promotion to the IFS cadre. Gurbaj Singh respondent who was then working as Deputy Commissioner of Forests moved a petition before the Central Administrative Tribunal, Chandigarh Bench (for short the Tribunal) challenging the appointment of the petitioner to the post of Director, Zoological Park primarily on the ground that under Rule 9 of the IFS (Cadre) Rules, 1966 (hereinafter called the Cadre Rules) only cadre officers could be posted on cadre posts and since the petitioner was not a member of the IFS cadre he could not be appointed to that post. He also sought a direction to the State of Punjab to give charge of the super-time scale post meant fro IFS cadre to him as according to him he was eligible and senior-most officer from me IFS cadre having been found suitable by the Departmental Promotion Committee in the meeting held on February 19, 1998. The Union of India, the State of Punjab and the petitioner were impleaded as respondents therein. The Union of India conceded before the Tribunal that only cadre officers could be appointed on a cadre post save as otherwise provided in the Rules and Regulations and that a member of the State Forest Service whose name was not included in the select list or who was not next in that select list could not be appointed to a cadre post beyond a period of 3 months without the prior approval of the Central Government.

The State of Punjab contested the petition and filed its written statement. It was averred that the petitioner was a Class-II Veterinary Assistant Surgeon since 21.7.1974 and joined the Department of Forest and Wild Life Preservation on deputation on 1.4.1977. He was posted as Deputy Director in the Zoological Park. It was conceded by the State of Punjab that the post in question (Director, Zoological Park) was a cadre post of IFS. However, the Slate Government sought to justify the appointment of the petitioner to that post on the ground that it had recommended to the Government of India that the post of Chief Wild Life Warden be declared as a cadre post and the post of Director, Zoological Park be declared an ex-cadre post. The petitioner also sought to justify his appointment to the post in question on the ground that the State of Punjab had taken a decision to de-cadre the post of Director, Zoological Park and en-cadre the post of Chief Wild Life Warden which is not a cadre post at present.

The Tribunal by its order dated 10.9.1999allowed the petition and held that the post of Director, Zoological Park could be filled up only by a member of the IFS cadre and since the petitioner did not belong to that cadre his appointment was quashed and a direction issued to the State of Punjab to fill up the vacant posts of Conservator of Forests including that of the Director, Zoological Park from amongst the eligible IPS cadre officers on the basis of the recommendations made by the Departmental Promotion Committee, it is against this order that the present writ petition has been filed under Article 226 of the Constitution.

We have heard counsel for the parties.

The question whether the petitioner was eligible to hold the cadre post of Director, Zoological Park has to be considered in the light of Rule 8 of the IPS (Appointment by Promotion) Regulations, 1966 (for short the Regulations) and Rule 9 of the Cadre Rules. These provisions are reproduced hereunder for facility of reference :

"Regulation 8. Appointment to cadre posts from the Select List:

Appointments of members of the State Forest Service from the Select List to posts borne on the Slate cadre or the joint cadre of a group of States, as the case may be, shall be made in accordance with he provisions of rule 9 of the Cadre Rules, in making such appointments, the State Government shall follow the order in which the names of such officers appear in the Select List.

Notwithstanding anything contained in sub-regulation (1), where administrative exigencies so require, a member of the State Forest Service whose name is not included in the Select List or who is not next in order in that Select List, may, subject to the aforesaid provisions of the Cadre Rules, be appointed to a cadre post, if the State Government is satisfied:

i. that the vacancy is not likely to last for more than three months;

ii. that there is no suitable cadre officer available for filling the vacancy:

Provided that where any such appointment is made in a State, the State Government shall, forthwith report to the Central Government together with the reasons for making the appointment:

Provided further that where administrative exigencies so require, such appointments may be continued in a cadre post beyond a period of three months with the prior concurrence of the Central Government."

"Rule 9. Temporary appointment of non-cadre officers to cadre posts :

A cadre post in a State shall not be tilled by a person who is not a cadre officer except in the follow who is not cadre officer except in the following cases, namely:

(a) if there is no suitable cadre officer available for filling the vacancy:

Provided that when a suitable cadre officer becomes available, the person who is not a cadre officer, shall be replaced by the cadre officer:

Provided further that if it is proposed to continue the person, who is not a cadre officer, beyond a period of three months, the State Government shall obtain the prior approval of the Central Govt. for such continuance :

(b) if the vacancy is not likely to last for more than three months:

Provided that if the vacancy is likely to exceed a period of three months, the State Government shall obtain the prior approval of the Central Government for continuing the person who is not a cadre officer beyond the period of three months.

A cadre post shall not be filled by a person who is not a cadre officer except in accordance with the following principles, namely:

(a) if there is a Select List in force, the appointment or appointments shall be made in the order of names of the officers in the Select List;

(b) if it is proposed to depart from the order of names appearing in the Select List, the State Government shall forthwith make a proposal to that effect to the Central Government together with reasons therefore and the appointment shall be made only with the prior approval of the Central Government;

(c) if a Select List is not in force and it is proposed to appoint a non- Select List officer, the State Government shall forthwith make a proposal to that effect to the Central Government together with reasons therefore and the appointment shall be made only with the prior approval of the Central Government.

(3) Where a cadre post is likely to be filled by a person who is not a cadre officer for a period exceeding six months, the Central Government shall report the full facts to the Union Public Service Commission with the reasons for holding that no suitable officer is available for filling the post and may in the light of the advice given by the Union Public Service Commission give suitable directions to the State Government concerned."

A reading of the aforesaid provisions makes it clear that Regulation 8 of the Regulations provides that every post in the cadre has to be filled up by a cadre officer save as otherwise provided. Situations where a non-cadre officer could be appointed to a cadre post temporarily are stated in Rule 9, It is clear that a member of the State Forest Service whose name is not included in the select list or who is not next in order of that select list cannot be appointed to a cadre post beyond a period of three months without the prior approval of the Central Government. In view of these mandatory provisions; the Tribunal was right in holding that the petitioner was not eligible to hold She post in question. The fact that the State Government has taken a decision to de-cadre the post of Director and en-cadre the post of Child Wild Life Warden is wholly irrelevant for deciding the question raised in the writ petition. The Central Government has to grant its approval and we have its reply in which the specific stand taken is that the recommendation of the State Government has not been accepted by it. If and when the post of Director is taken out of the IPS cadre the State Government would be at liberty to appoint any suitable person to that post but till such time that is done the post has to be filled up by a cadre officer. In this view of the matter, no fault can be found with the impugned order of the Tribunal quashing the appointment of the petitioner to the post of Director Zoological Park. Before concluding, we cannot resist observing that it is rather unfortunate that an ineligible person was allowed to continue on this important post for almost three years and the State Government has been trying to prolong the matter by seeking adjournments from time to time on the ground that it had recommended to the Central Government for taking the post in question out of the IPS cadre.

In the result, we find no merit in the writ petition and the same stands dismissed. We, however, direct respondent No. 1 to fill up the post of Director Zoological Park from amongst the eligible and suitable cadre officers within two weeks from the date of receipt of a copy of this order and till such appointment is made, the petitioner shall continue on the post so that the work of the Department does not suffer. There is no order as to costs.

Copy of this order be supplied to the parties dasti on payment of usual charges. .

Petition dismissed.