Sudhir Trivedi vs State of Arunachal Pradesh and Others

J.N. Sarma, J.—CR 662/97 has been filed for a direction for restoration of seniority of the petitioner as Divisional Manager in Arunchal Pradesh Forest Corporation Ltd. (hereinafter called ''APFC Ltd.'') by necessary revision/amendment of the provisional gradation list issued on 14.5.1995 wherein the petitioner has been shown at SI. No. 3 in place of SI. No. 2 showing one of his junior Nababrata Bhattacharjee (Respondent No. 5) in SI. No. 1, which is claimed to be unwarranted and unjustified supersession of the petitioner in service.

CR 667/97 has been filed claiming restoration of seniority of the petitioner as Divisional Manager in APFC Ltd. by necessary revision/ amendment of the provisional gradation list dated 14.5.1995 wherein the petitioner has been shown at SI. No. 4 in place of SI. No. 3 showing one of his junior Nababrata Bhattacharjee (Respondent No. 5) at SI. No. 1 thereby pushing him down by one position, i.e., from position No. 3 to position No. 4 which is claimed to be an unwarranted and unjustified supersession of the petitioner in service.

CR 668/97 has been filed for restoration of seniority of the petitioner as Divisional Manager in APFC Ltd. by necessary revision/ amendment of the provisional gradation list issued on 14.5.1995 wherein the petitioner has been shown at SI. No. 2 in place of SI. No. 1 showing one of his junior Nababrata Bhattachargee (Respondent No. 5) in SI. No. 1 which is an unwarranted and unjustified supersession of the petitioner in service.

I have heard Mr. B.K. Sharma, learned counsel for all the petitioners, Mr. N.M. Lahtri, learned senior counsel for respondent No. 5, Mr, U. Bhuyan, learned counsel for respondents 1 & 4 and also Mr. R.P. Sharma, learned counsel for respondents 2 and 3.

The brief facts are as follows :

The petitioner in CR 662/97 obtained Ph.D. Degree from North East Hills University (NEHU), Shillong in 1981 and applied for a post of Asstt. Conservator of Forests (ACF) in the Arunachal Pradesh Forest Department/Assistant Project Manager (APM) in the APFC Ltd. The petitioner and 3 others namely Tarun Kanti Chakraborty, Alok Dev and Nababrata Bhattacharjee who were working in Arunachal Pradesh Forest Department as Forest Ranger were selected for the post of Assistant Project Manager in the APFC Ltd. for undergoing training in the State Forest Service (SFS) Training College-cum-Research Station, Burnihat. 4 (four) persons joined the college for training and they are as follow :

Dr. SudhirTrivedl on 2.11.1983

Sri Tarun Kanti Chakraborty 7.11.1983

Sri Alok Dev 7.11.1983

Sri Nababrata Bhattacharjee 18.11.1983

It was provided in annexure-I, the letter by which they were sent up for training as follows :

"Your inter se seniority in your batch will be in order of merit in which you would pass out from the above mentioned college after completion ofyour training successfully."

They were appointed as Asstt. Forest Manager in probation for a period of 3 years under the APFC Ltd. vide order dated 3.2.1986 and it provided inter alia as follows :

Their inter se seniority will be as per merit list declared by the college authority on Forest Service College-cum-Research Centre, Burnihat,"

All the 4 (four) persons were promoted as Divisional Manager by order dated 23.8.1995. Earlier to it the provisional gradation list of Asstt. Project Manager was issued on 14.8.1989 wherein respondent No. 5 was shown as junior. Thereafter on 23.5.1995 the gradation list was issued in respect of Divisional Manager of the APFC Corporation wherein Nababrata Bhattacharjee (Respondent No. 5) was shown at SI. No. 1. All the 3 (three) petitioners submitted representations. A reply was given wherein it was stated that in making promotion from the post of Asstt. Project Manager to the post of Divisional Manager there was a DPC as the Divisional Manager is a Class I post and Asstt. Project Manager is a Class II post., and there the service records where taken into consideration and having taken that service record into consideration, the respondent No. 5 was placed at the top and the seniority list was accordingly made. Another representation was submitted on 17.7.1996 and the reply was sent to it showing that in the absence of any statutory rule, the authority is bound to follow the administrative instruction and recommendations of the DPC is binding on it. It was further highlighted at the time of argument that the respondent No. 5 was in the habit of leaving head quarter without permission and as such he has absented in an unauthorised manner and even this matter was brought to the notice of the authority and there were some enquiry as against him and even there were a case with regard to recovery of some amount.

An affidavit-in-opposition has been filed on behalf of respondents 1-4 and affidavit-in-opposition also has been filed on behalf of respondent No. 5. In fhe affidavit-in- opposition filed on behalf of respondents 1- 4 it has been stated in para 5 as follows;

The provisions of law as per followed by Govt. department for preparation of panel which is relevant in the instant case is quoted here under :

".... Whenever promotions are made for induction to Group ''A'' posts or services from lower groups, the bench-mark would continue to be ''GOOD''. However officers graded as ''OUTSTANDING'' would rank en bloc senior to those who are graded as ''VERY GOOD'' and officers graded as VERY GOOD'' would rank en bloc senior to those who are graded as ''GOOD'' and placed in the select panel accordingly up to the number of vacancies, officers with same grading maintaining their inter se seniority in the feeder post."

In this connection it may be pointed out here that serving APM''s pay scale is Rs. 2000-3500 ''B'' Cadre post, and Divisional Manager drawing the scale of pay Rs. 3000-4500 is ''A'' Cadre post. Moreover, it may be mentioned here that as per the existing Manager APFCL service rule the post of Divisional Manager is ''A'' Cadre post and post of APM is ''B* Cadre post.

Further, as per APFCL service rule Chapter II Section-I -power to appoint mentioned as under :-

"(a) All appointments to the Corporation will be made in accordance with the rules of Govt. of Arunachal Pradesh."

Thereafter the DPC was constituted on 21.7.1995 to examine the cases of promotion of all eligible APMs and that DPC considered the entire materials. In the affidavit it is stated that though there were some shortfall in the service of respondent No. 5 there was no formal enquiry and no formal chargesheet was issued to respondent No. 5. Respondent No. 5 also received the Governor of Arunachal Pradesh Award during the year 1995 for his contribution to development of tea plantations in interior areas of the State. Respondent No. 5, it is further stated, was also responsible for realisation of a huge amount from M/s Tezam Saw & Veneer Mills Pvt. Ltd. which received 5% rebate as industrial concession without being entitled to it. The DPC took into consideration the service record of all the officers at the time of promotion and accordingly promoted respondent No. 5 to the post of Divisional Manager as he was placed at the top of the list, Accordingly it is stated that there is no question of revising the seniority list, if does arise.

Learned counsel for petitioners places reliance on the following :

Abraham Jacob and Others Vs. Union of India, . That case is not relevant to decide the present controversy.

R.B. Desai and Another Vs. S.K. Khanolker and Others, That is a case wherein the Apex Court pointed out that unless excluded by statutory provisions, seniority cannot be ignored for the purpose of promotion. In para 9 the Apex Court pointed out as follows:

"In service law, seniority has its own weightage and unless and until the rules specifically exclude this weightage of seniority, it is not open to the authorities to ignore the same."

There is no question of ignoring the seniority of the petitioners inasmuch as all the petitioners were considered for promotion and the authority promoted them and thereafter, seniority list was prepared on the basis of their position in the merit list of the DPC.

(1995) 2 ALJ 56 (Sarat Kurnar Dash and Ors. v. Biswajit Patnaik and Ors.) That case also does not help the petitioner. That was a case wherein selection was made on merit-cum-seniority with due regard to seniority. Selection was sought to be quashed on the plea that the seniors were ignored. It was found by the Apex Court that respondent were placed in a lower grade by PSC as per their merit. The Apex Court further pointed out that the principle was correctly followed as seniority is important when candidates secure same merit.

That is not the position in the case in hand. Here respondent No. 5 was found to be more meritorious by the DPC.

Nagpur Improvement Trust Vs. Yadaorao Jagannath Kumbhare and Others, wherein the Apex Court pointed out that in the absence of statutory rule governing the service condition, executive instructions and/or decisions taken administratively operate and appointments/promotions can be made in accordance with such executive instructions/directions. That is what has happened in the Instant case. The Board of the Corporation took a reasonable resolution and followed it strictly in making the promotion.

(1988) 3 AISLJ (Dr. Chakradhar Paswan v. State of Bihar and Ors.). The Apex Court pointed out in that case was that in service jurisprudence, the term ''cadre'' has a definite legal connotation. In the legal sense, the word ''cadre'' is not synonymous with ''service''. When a post carries higher grade or scale, that itself constitute different cadre than that of a post which carries lower scale or grade and in such a situation promotion from one cadre to other cadre can be made by the authority on the basis of statutory rules/ executive Instructions. That is what has been done in the instant case.

State of Madhya Pradesh and Another Vs. Dharam Bir, . That case is of no help to the petitioners.

State of Madhya Pradesh and Another Vs. Dharam Bir, That is a case with regard to promotion wherein it was pointed out by the Apex Court that parameter of seniority is not relevant in case of candidates appointed on the same day and having equal length of service and that in such case only comparative merit is relevant.

As pointed out above, all the persons were promoted on the same day by the same order and the authority fixed the seniority on the basis of recommendations made by the DPC.

The promotions of the petitioners along with Respondent No. 5 (Nababrata Bhattacharjee) were considered by a duly constituted DPC. The DPC analysed the materials (ACRs and other service records) of the officers in promoting them from Grade-II to Grade-I and placed/recommended respondent No. 5 at SI. No. 1 and it was that position which was reflected in seniority list. It is not the law that the seniority of lower grade shall automatically carry/go to the higher cadre after promotion. The Rule (which is highlighted in the affidavit-in-opposition) itself provides how promotions are to be made. All eligible persons were considered for promotion by the DPC and the DPC prepared a panel on merit and that merit was reflected in the seniority list. Those who are better sprinter will reach the fixed spot at the earliest, that is the common experience. This is also in consonance with service jurisprudence (in the absence of any rule excluding it) where better service in the existing grade is considered as a reward for stepping into the next grade early.

That being the position, there is no merit in all these writ applications and they are rejected.