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Judgment
O R D E R
HON'BLE Ms.V.RAMA MATHEW, ADMINISTRATIVE MEMBER
The applicant was born on 29.06.1962 and commenced service as a Range Forest Officer on 01.01.1984. He was promoted as Assistant Conservator of Forests (ACF) on 13.12.2000. Thereafter, he was granted Senior Grade and promoted as Deputy Conservator of Forests (Non-Cadre) with effect from 01.04.2010. He completed eight years of qualifying service in the post of Assistant Conservator of Forests in the year 2008 and thereby became eligible for consideration for selection and appointment to the Indian Forest Service (Kerala Cadre) against the promotion quota, as contemplated under Rule 5 of the Indian Forest Service (Appointment by Promotion) Regulations, 1966. In the Final Seniority List of Assistant Conservators of Forests for the period from 01.04.2011 to 01.01.2016, he was placed at Rank No.16. A copy of the said Final Seniority List is produced as Annexure A-1.
It is submitted that the applicant had rendered outstanding service throughout his career and was granted good service entries and appreciation letters. There were no adverse entries in his ACRs during the five years preceding the year in which the relevant Select List was prepared. Further a disciplinary proceeding was initiated against him in respect of alleged irregularities during 1995–1996. By order dated 05.08.2011, the Government imposed recovery of Rs.64066/- and withholding of two increments without cumulative effect. Pursuant to the order of the Kerala Administrative Tribunal in O.A.No.1169/2013 dated 20.07.2016, the matter was reconsidered and, by order dated 14.07.2017, the Government set aside the penalties and fully exonerated him from allCentral Administrative Tribunal the charges. The said order is produced as Annexure A-2, with its English translation as Annexure A-2A. Consequently, the penalty having been set aside, no adverse consequence could thereafter be allowed to flow from the same.
The applicant was included in the zone of consideration for promotion to the Indian Forest Service for the year 2011, at Serial No.9. This is produced as Annexure A-3. The Selection Committee met in May 2015 and prepared a Select List comprising five officers, which was approved by the UPSC. Accordingly, the Government of India issued the statutory notification dated 21.05.2015, selecting five officers. For the year 2012, three vacancies were notified and the Selection Committee met on 05.08.2015. The applicant was at Serial No.5 in the field of choice. However, the State Government forwarded his service records stating that disciplinary proceedings were pending, the integrity certificate was withheld, and the penalty of recovery of Rs.64066/- and withholding of two increments without cumulative effect had been imposed on 05.08.2011. On the basis thereof, the Selection Committee assessed him as unfit and selected three officers, including his junior, Shri.Maheshkumar. This is produced as Annexure A-4.Central Administrative Tribunal
The Government of India, by proceedings dated 02.12.2014, determined seven vacancies for promotion quota for the year 2013, as proposed by the State Government, and by letter dated 26.07.2015, determined four vacancies for the year 2014. Further, in O.A.No.307/2016, this Tribunal by order dated 24.06.2016, directed the State Government to forward the proposal for selection for the year 2013 to the Selection Committee within one week of receipt of the order and directed the Selection Committee to convene within one month thereafter.
As per Regulation 5(2), the number of eligible officers to be considered by the Selection Committee shall ordinarily be three times the number of vacancies. However, the State Government informed the Selection Committee that for preparation of the Select List for the year 2013, only 12 officers were eligible for consideration against 7 vacancies in the IFS (Kerala) Cadre. Accordingly, the Selection Committee decided to consider all the 12 eligible officers within the field of choice. The applicant was included at Rank No.3 in the said field of choice. Similarly, for the Select List for the year 2014, against 4 vacancies, only 5 officers were eligible for consideration and, accordingly, all the 5 eligible officers were included in the field of choice. The applicant wasCentral Administrative Tribunal placed at Serial No.1 in the said field of choice.
The State Government, while forwarding the proposal to the Selection Committee, intimated, inter alia, that (i) disciplinary proceedings were pending against the applicant; (ii) the integrity certificate in respect of the applicant had been withheld; and (iii) a penalty of recovery and withholding of two increments without cumulative effect had been imposed on the applicant on 05.08.2011. The meetings of the Selection Committee for preparation of the Select Lists for the years 2013 and 2014 were convened on 22.12.2016. Upon consideration of the assessment reports and other relevant records, the Selection Committee declared him unfit for inclusion in the Select Lists for both the years 2013 and 2014, taking note, inter alia, of the currency of the penalty imposed upon him. The Selection Committee selected 6 officers against the 7 vacancies for the year 2013 and 2 officers against the 4 vacancies for the year 2014. One officer, namely Shri.C.Rajendran, who was also stated to be under cloud, was common to the Select Lists for both the years 2013 and 2014. This is produced as Annexure A-5.
Consequently, the 1st respondent published the Select Lists for the years 2013 and 2014 by Notification dated 14.02.2017. A copy of theCentral Administrative Tribunal said Notification dated 14.02.2017 is produced as Annexure A-6. Thus, against the 7 vacancies notified for the year 2013, only 6 officers were included in the Select List, leaving one unfilled vacancy. Likewise, against the 4 vacancies notified for the year 2014, only 2 officers were included in the Select List, leaving two unfilled vacancies. Accordingly, a total of three vacancies remained unfilled in the Select Lists for the years 2013 and 2014.
It is submitted that the Selection Committee had assessed and declared the applicant unfit for inclusion in the Select Lists for the years 2012, 2013 and 2014, primarily taking note of the currency of the penalty imposed upon him pursuant to G.O. (Rt.) No. 358/2011 dated 05.08.2011. In view of Annexure A-2 order dated 14.07.2017, whereby he was exonerated of the charges levelled against him and the penalties imposed upon him were set aside, there occurred a material change in his relevant service records having direct bearing on his assessment for promotion for the years 2012, 2013 and 2014. Consequently, the Selection Committee ought to have reviewed its assessment and selection for the said years in the light of his subsequent exoneration and the setting aside of the penalties.
It is submitted that, in terms of the Guidelines issued by the Union Public Service Commission dated 28.12.2005, the Selection Committee is required to review its earlier assessment where the State Government certifies that there has been a material change in the relevant service records of an officer. In the present case, the subsequent exoneration of the applicant and the setting aside of the penalties constituted a material change in his service record, particularly since the currency of the said penalty had been taken into consideration while assessing him as unfit. A copy of the Guidelines dated 28.12.2005 issued by the Union Public Service Commission is produced as Annexure A-7. Immediately upon his exoneration and seeking review of the assessment and selection for the years 2012, 2013 and 2014 in the light of the changed circumstances, he submitted representations before Respondent Nos.1 to 3, enclosing Annexure A-2 order of exoneration. This is produced as Annexure A-8.
The total cadre strength to be filled by promotion is fixed at 32 as per the Indian Forest Service (Fixation of Cadre Strength) Second Amendment Regulations, 2015. Four vacancies arose for consideration for promotion for the year 2015. Thus, on 14.03.2016 the State Government proposed six vacancies for promotion quota for the year 2015 as available on 01.01.2016 and the eligibility list forwarded by theCentral Administrative Tribunal Principal Chief Conservator the applicant is placed at Sl.No.3 in the zone of consideration for inclusion in the select list of 2015. This is produced as Annexure A-10. Sl.No.2 in the list has already been selected for the year 2013 in the selection held on 22.12.2016. It is submitted by the applicant that in the proposal forwarded by State Government to the Selection Committee the Annexure A-2 order exonerating him for the charges leveled seems to have been omitted to be included in the per forma. Consequently it appears that the relevant material for consideration for selection was not placed before the Selection Committee. The Selection Committee which met on 22.12.2016 assessed the applicant and declared him 'unfit' for the year 2013 and 2014 solely based on the penalty imposed. Therefore, the failure of the State Government to indicate the exoneration of the applicant as a material factor in the determination. The Indian Forest Service (Appointment by Promotion) Regulations, 1966 do not provide for suo motu review of Select List already prepared, approved by the UPSC and acted upon by the Central Government. The guidelines issued by the Commission warrants review of Select List if the State Government certifies that there is material change of service records of the officer in the relevant periods. Therefore, in view of Annexure A-2 order of exoneration, Annexure A-4 Select List for the year 2013 and 2014 ought to have beenCentral Administrative Tribunal reviewed interpolating the name of the applicant in the Select List at Annexure A-4 as the size of the original Select List is not likely to exceed the statutory limit of the size of the Select List and substantive vacancies remained unfilled for the year 2013 and 2014 respectively.
The fundamental issue to be considered in this O.A is whether the exoneration order dated 14.07.2017 would permit reconsideration of the Select List already issued. When we go through the guidelines produced at Annexure A-7, Para D, regarding treatment of integrity certificate/departmental proceedings/criminal proceddings etc., it states that the name of the officer, whose integrity certificate has been withheld by the State Government or against whom departmental or criminal proceedings are pending may be included in the Select List by the Selection Committee provisionally subject to grant of integrity certificate or clearance in the departmental or criminal proceedings, if the Selection Committee finds the officer as otherwise suitable for promotion on the basis of an overall assessment of his ACRs as per the procedure indicated in the paragraphs 4.1 to 4.5 above. The proceedings shall be treated as pending only if a charge sheet has actually been issued to the officer in disciplinary proceedings or filed in a court of law in criminal proceedings, as the case may be.Central Administrative Tribunal
Para F is regarding selections distinct from DPC guidelines wherein it is stated that the promotions of State Service Officers to the All India Services are distinct from the promotions within the same cadre of the State Government/Central Government. The promotions to All India Services are governed by the provisions of Promotion Regulations whereas the in-line (same cadre/service) promotions are governed by the DPC guidelines issued by the State Government/Central Government. As such, there is no concept of 'Bench Mark' or assessment as 'Fit/Not yet Fit' in the Promotion Regulations. Further, the officers against whom disciplinary/criminal proceedings are pending or whose integrity certificate is withheld are included provisionally in the Select List as per the provisions of the Promotion Regulations. The concept of 'Sealed Cover Procedure' as indicated in the DPC guidelines is not provided for in the Promotion Regulations. The eligibility of officers in the zone of consideration is verified by the Commission in terms of the specific provisions of the Promotion Regulations. Further as per the present policy of the Government of India, reservations for SC/ST officers are not applicable in respect of promotions to the All India Services.
13.Central Administrative Tribunal Para G regarding guidelines relating to retention of earlier year grading by the Review SCM. It is further stated that the Promotion Regulations do not provide for suo-motu review of the Select List already prepared, approved by the Commission and acted upon by the Central Government. However, sometimes, on specific directions of the competent courts, the Select Lists are required to be reviewed. This would happen on account of revision of seniority or to rectify some procedural irregularity that crept in the proceedings of the original Selection Committee, if the officer has already been considered by an earlier Selection Committee, in the first instance the State Government may be requested to indicate whether there is any material change in the relevant record of the concerned officer after consideration of his case by the initial Committee for promotion to the IAS/IPS/IFS. In the event, the State Government certifies that there is no material change in the service records of the officer in the relevant years, the Review Committee may not change the grading of the officer already assigned by the earlier Committee.
The applicant has argued that in the case of T.C.Thyagraj vs. Union of India & Ors., (O.A.No.180/569/2022) the issue whether the penalty dates back to the original order was examined and the Tribunal directed to go back. This was challenged before the Hon'ble High CourtCentral Administrative Tribunal in O.P.(CAT) No.98/2025 by the respondents. The Hon'ble High Court did not consider the fundamental issue of go back but the O.P.(CAT) was dismissed. In the T.C.Thyagraj's case (supra) the issue was penalty was imposed in the year 2006 and subsequently the penalty imposed upon him was modified. However, the State Government has excluded him from the Select List on the ground of pendency of the penalty. In this specific circumstance the direction to go back was given on the ground that it would amount to double jeoparady. In this particular instance, it was argued by 4th respondent (UPSC) that it is not a provisional exclusion subject to clearance but the candidate has been declared 'unfit' because the intergrity certificate was not issued. Therefore his junior was promoted. It is also the question whether the integrity certificate was issued during the relevant validity period.
Attention has been drawn to the case of Badrinath vs. Government of Tamilnadu & Ors., (2000) 8 SCC 396 wherein at para 26 and 27 it has been stated as under -
26.Under Sub-Clause (a) of Article 356(1) of the Constitution of India, the President may assume to himself all or any of the functions of the Government of the state and all or any of the powers vested in or exercisable by the Governor or any body or authority in Central Administrative Tribunalthe State other than the Legislature of the State. Where the President, after assumption of the powers of the State Executive, chooses to exercise those powers through the State Government, the latter acts as the agent of the President, acting on the advice of the Union Ministry, instead of the State Cabinet. In short, when the President vests the Governor with the powers of the State Government, the Governor can exercise all the powers of the State Government, without the advice of his Council of Ministers. The Governor becomes responsible to the President i.e. the Union Government which has its responsibility to the Union Parliament. The Governor can exercise the statutory power exercisable by the State Government. (See Basu, 11th Ed. Shorter Constitution, p. 1192). Once that power was exercised by the Government on 28.6.77, all the consequential proceedings leading to the censure fall to the ground.
27.This flows from the general principle of applicable to 'consequential orders'. Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime - like the recommendation of the State and by the UPSC and the action taken thereon - would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. In other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor in this case) and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order.
It has been stated in Badrinath (supra) it has been held that they are deemed to be on exoneration, they would be appointed with effect from the date their juniors had been appointed. However, it has been Central Administrative Tribunal made clear in Para (F) of the Selection Committee Guidelines and reiterated in Para (G) that there is no allegation that there is a procedural irregularity that has crept in the proceedings or revision of seniority has occurred which would mandate the convening of a Review Selection Committee Meeting. It is only when such an irregularity has occurred that the Selection Committee can seek confirmation as to whether there is any material change in the relevant record of the concerned officer after consideration of his case by the initial Committee for promotion to the IAS/IPS/IFS. It should also be noted that the exoneration order as per the terms of Annexure A-2A dated 14.07.2017 ie., well after the date of the convening of the Selection Committee and also well after the date of expiry of that validity period of that Selection Committee recommendations. It was also brought to our attention that the officer was granted notional fixation subsequently and he has, therefore, not lost out in any material fashion by the failure of convening of a Review Selection Committee Meeting.
In K.Raju Thomas vs. Union of India & Ors., O.A.No.180/123/2022 it has been stated as under -
'9. However, in the objection the 1st respondent has taken up a specific contention that the applicant has since retired and he is no longer a member of the State Central Administrative TribunalService, by virtue of Regulation 9(1) he cannot be appointed into IFS, even after his name was included in the select list of 2018.
10.The learned counsel for the applicant relied on several decisions of this Tribunal in which it was reiterated time and again that retirement of a member of the State Service who had retired cannot stand in the way of he being included in the IFS. The learned senior counsel relied on Annexure A9 order of this Tribunal in O.A.No.180/968/2015 in which an identical situation arose. In that order it was held that there was always a gap between the select committee meeting and the year of eligibility of the applicant and the former always err on the side of delay. No responsibility can be attributed for the delay nor should the applicant be expected to bear the adverse consequences for the delay. It was ultimately held that the fact that the applicant had retired could not stand in the way of applicant being included in the IFS. The 1st respondent was directed to make fresh notification for appointment to IFS by including the name of the applicant within the stipulated time. This was reiterated by another order of this Tribunal in O.A.No.180/520/2021. By a detailed order (to which one of us was a party) the above issue was again considered. Ultimately this Bench, reiterated the earlier conclusions in O.A.No.744/2013 and connected cases and directed the 1st respondent to include the name of the applicant in the IPS.
11.To counter this contention, the learned ACGSC relied on a Single Member decision of the Ahmadabad Bench of the Central Administrative Tribunal in M.M. Mehta v. Union of India dated 7th June, 2001 produced as Annexure R1, which was held a contra view. The learned ACGSC relying on the above decision vehemently contended that this Bench is bound by the earlier decision of the Ahmadabad Bench and the matter needs to be referred to a larger Bench in the light of the conflicting views of the Ahmadabad Bench and the Ernakulam Bench.
Central Administrative Tribunal12. We find no divergence in the issue involved. It seems that the decision in M.M. Mehta was passed by a Single Bench though it may have a persuasive effect on this Bench, we are inclined to follow the consistent view taken by the Division Bench, as evidenced by Annexures A9 and A10. The view taken by this Bench consistently in Annexures A9 and A10 appears to be well reasoned and we are in complete concurrence with those orders. We find no reason to take a different view or to doubt the rationale of the above decisions and to refer the matter to a Larger Bench.
13.Though a feeble contention was taken up by the learned ACGSC that the applicant was involved in a criminal case and his acquittal was not an honourable acquittal, we are not inclined to accept that contention. The copy of the judgment in CC No.961/2013, in which the applicant stood arrayed as accused No. 7 for offences punishable under Sections 365, 342, 387, 386, 323 and 120B read with Section 34 IPC was placed before us which shows that after a full fledged trial and examination of about 21 witnesses, the court below found that the case against the accused could not be established and all of them were acquitted. The acquittal was on merit and not on benefit of doubt. Hence, the stigma in relation to the involvement to the criminal case, if any, stood erased.
14.In the light of the above, the Original Application is liable to be allowed. There will be a direction to the 1st respondent to pass appropriate order including the applicant in the select list of 2018 for promotion to the Indian Forest Service (Kerala cadre), as his inclusion in the select list is declared as unconditional and final by the 2nd respondent. This shall be done within a period of 30 days from the date of receipt of a copy of this order. The 1st respondent shall issue appointment order to the applicant as he has complied with all the conditions as directed by the 1st respondent in Annexure A5. 15. The Original Application is allowed. No costs.'
However, the decision which addresses the identical issue is R.Rajendran vs. Union of India & Ors., W.P.(C) No.20313/2009 wherein it has been held as follows -
'4. The point to be considered is whether the State Government could have issued the integrity certificate when an incumbent was facing trial before a criminal court for corruption charges. In our opinion, we have no doubt that the Government could not have issued integrity certificate for such an officer. Learned counsel for the petitioner pointed out that in the year 2002, he was not facing any trial before the Criminal court. But his efforts to get the integrity certificate issued during the said period did not succeed, in view of the dismissal of OA No.843/02 filed by him. A copy of the order in that Original Application is produced as Annexure A1 along with Ext.P1 Original Application. The point which remains to be considered is whether on acquittal, the petitioner can claim integrity certificate with retrospective effect for the year 1994-95 or for subsequent years. The relevant rules do not provide for such a procedure. The integrity certificate has to be issued during the relevant year when he is included in the list. If the same is not issued at the relevant time, there is no provision for extension of time. In view of the said position, we find nothing wrong with the decision of the CAT. We fully agree with the reasons and conclusions of the Tribunal. Accordingly, the writ petition is dismissed.'
In view of the settled position which addresses the facts as enumerated in this case as well, the O.A stands dismissed. No order as to costs.
List of Annexures in O.A.No.180/00621/2017
Annexure A-1 – A true extract copy of the final seniority list of Assistant Conservator of Forests from 01.04.2011 to 01.01.2016 published on 30.12.2016.
Annexure A-2 – A copy of the order G.O.(Rt) No.260/2017/Forest dated 14.07.2017.
Annexure A-2A – A copy of the English translation of Malayalam document Annexure A-2.
Annexure A-3 – A copy of the proceeding No.15900/A1/12/F&WLD dated 26.12.2012.
Annexure A-4 – A copy of the minutes of the Selection Committee Meeting dated 05.08.2015.
Annexure A-5 – A copy of the minutes of the Selection Committee Meeting dated 22.12.2016.
7.Central Administrative Tribunal Annexure A-6 – A copy of the Notification File No.17013/19/2015-IFS.II dated 14.02.2017.
Annexure A-7 – A copy of the guidelines F.No.4/3/2005-AIS dated 28.12.2005.
Annexure A-8 – A copy of the representation dated 17.07.2017.
Annexure A-9 – A copy of the Notification file No.17013/25/2016-IFS-II dated 12.09.2016.
Annexure A-10 – A copy of the Eligibility List of Assistant Conservator of Forests 2015.
Annexure A-11 – A copy of the proceeding No.F.N.17013/25/2016-IFS-II dated 22.03.2021.
Annexure A-12 – A copy of the proceeding No.F.No.12/09/2016-AIS dated 18.12.2017 along with Minutes of Selection Committee.
Annexure R-2(A) – A copy of the G.O.(Rt.) no.358/11/Forest dated 05.08.2011.
Annexure R-2(B) – A copy of the Order No.17013/25/2016-IFS-II dated 21.11.2017 of Government of India, Ministry of Environment, Forest & Climate Change, New Delhi.
Annexure R-2(C) – A copy of the Notification No.17013/25/2016-IFS-II dated 17.01.2018 of Government of India, Ministry of Environment, Forest & Climate Change, New Delhi.