Vijay Kumar vs The Union Of India & Ors.

Per S.K. Sinha, A.M:- The OA has been preferred by an Indian Forest Service(IFS) officer of Jharkhand Cadre appointed by way of promotion and allotted 2002 batch praying for the following reliefs:-

The applicant’s case as per OAOA is that after induction into IFS and being allotted the 2002 batch he was entitled to the Selection Grade and promotions to the posts of Conservator of Forests (CF) and Chief Conservator of Forests(CCF). According to the guidelines dated 18.11.2002 issued by Ministry of Environment and Forest, Govt. of India (Annexure 7) an IFS officer becomes eligible for Selection Grade after 13 years of service and for promotion to the post of Conservator of Forests after 14 years of service and to the post of Chief Conservator of Forests after 18 years of service. His services in the IFS were confirmed by the GoI with effect from 24.05.2014 (Annexure - 6). Despite fulfilling the eligibility conditions, he was not granted the Selection Grade or the promotions though some of his juniors were granted Selection Grade and also promoted to the post of CF. Applicant has referred to the case of his junior Shri S.R. Natesh, an IFS officer of 2003 batch in the Jharkhand cadre, who was given Selection Grade w.e.f. 06.12.2016 and promoted to the post of Conservator of Forests w.e.f. 27.02.2018. Applicant has pleaded that despite clear guidelines and fulfilling the eligibility conditions, denial of Selection Grade and the promotions to him was arbitrary, against the rules and infringement of Article 14 and Article 16 of the Constitution.

Respondents contested the OA and filed written statement in which they held that the applicant was not granted the Selection Grade because his services in IFS was confirmed by Government of India only on 08.11.2019. Further, as per the Govt. of India guidelines, grant of Selection Grade and promotions to higher ranks was susubject to availability of vacancies in these grades. The case of applicant for grant of Selection Grade was duly considered by the DPC in the meeting on 23.12.2019 and recommended for grant of Selection Grade w.e.f. 01.01.2015 or from the date of availability of vacancy, whichever was later (Annexure-B). As the recommendation of the DPC could not get approval from the competent authority the applicant could not be granted the Selection Grade. Respondents, citing the judgment of Hon’ble Supreme Court in the Union of India Vs. K. V. Janki Raman, maintained that an employee had no right to promotion; he had only a right to be considered for promotion. As the applicant was duly considered for grant of Selection Grade, the OA was not maintainable.

In the rejoinder, applicant mentioned that the Government of India confirmed him in IFS with effect from 24.05.2014 vide their order dated 08.11.2019 (Annexure 6). The State Government sent the proposal for his confirmation on 08.02.2017 (Annexure-4) after a delay of almost three years from the date he had become eligible for confirmation. He cannot be penalized for the delay on part of the State Government in sending the proposal for confirmation. The applicant also pleaded that respondent authorities were adopting a differential yardstick in granting promotions to the members of the Indian Forest Service as many other IFS officers were promoted to the post of Conservator of Forests without the order of confirmation from Govt. of India. In support off his assertion, the applicant enclosed a GoI order dated 01.01.2021 (Annexure 12) confirming promotee IFS officers of 2006 batch and the Jharkhand Government notifications dated 28.01.2017 and 27.02.2018 (Annexure 13 series) promoting most of these officers as Conservator of Forests. The applicant also refuted the contention of respondents in the WS that he had only a right to be considered for promotion and the DPC had duly considered his case. The applicant averred that since the DPC had found him fit and recommended his case for grant of Selection Grade,, the action of the State Government in not approving the recommendation and thus denying him the promotion was arbitrary and discriminatory.

During the hearing on 08.03.2021, this Bench enquired from the learned counsel for respondents regarding the likely reasons behind the State Government not taking a decision on the DPC recommendation for grant of Selection Grade to the applicant. Getting no clear response, the Bench expressed a hope that the Respondent State would take a decision on the recommendation before the next date fixed on 12.04.2021. On the next date, the learned counsel for applicant informed that the State Government had passed an order on 30.03.2021 granting Selection Grade to the applicant with effect from 21^st March, 2015.

During final hearing, we heard the rival counsel on remaining prayers of the applicant and considered the submissions and material on record.

After the grant of Selection Grade, the applicant’s prayers surviving for adjudication in this OA are his entitlement for promotions to the post of Conservator of Forests and Chief Conservator of Forests in terms of rules and law.

Indisputably, the applicant, being allotted 2002 batch of IFS and confirmed in the service with effect from 24.05.2014, was eligible for appointment to Selection Grade on completion of 13 years of service i.e. with effect from 01.01.2015. The DPC meeting held on 23.12.2019 recommended for grant of Selection Grade to the applicant w.e.f. 01.01.2015 or from the date of availability of vacancy, whichever was later. The applicant retired on 30.09.2020. However, the respondent State granted him Selection Grade vide order dated 30.03.2021 after the applicant had preferred this OA and this Bench made a specific enquiry into the reasons for delay.

Further, the applicant’s junior Shri S. R.Natesh, an IFS officer of 2003 batch in the State, was promoted to the post of Conservator of Forests vide order dated 27.02.2018. Thus, the applicant remained in the service on a lower post as compared to his junior from 27.02.2018 till his retirement on 30.09.2020. Observation of Hon’ble Supreme Court in Bal Kishan Vs. Delhi Administration and Anr., reported in AIR 1990 SC 100, is relevant to the instant case and reads as under.

Respondents have argued that the applicant’s case for grant of Selection Grade was not considered earlier for want of the GoI’s order confirming his service. However, the applicant has averred that the State Government had granted promotions to higher posts to several IFS officers without the GoI’s confirmation order and has annexed copy of relevant orders in support of his assertion. The confirmation order in respect of fifteen promoted IFS officers of Jharkhand cadre allotted 2006 batch was issued by GoI vide order dated 1^st January,2021 (Annexure-12), however, most of these officers were promoted to the post of Conservator of Forests by the Govt. of Jharkhand vide their notifications dated 28.01.2017 and 27.02.2018 (Annexure-13 Series). The respondents have not contested these facts either in pleadings or submissions. In view of these background facts, we feel that the applicant who was allotted 2002 batch and whose confirmation order was received in November, 2019 could also have been treated on same footing. However, for reasons best known to the State Government, the applicant’s case was not considered and he continued to hold a lower post while his juniors in service were promoted to higher posts.

The Government of India guidelines (Annexure-7) on promotion of IFS officers to the post of Conservator of Forests reads as under .

As evident, grant of Selection Grade and completion of 14 years of service are essential eligibility condition for promotion of IFS officers to the post of Conservator of Forests. The applicant was granted Selection Grade with effect from 21.03.2015 vide order dated 30.03.2021 after his retirement. After grant of the Selection Grade the applicant has become notionally eligible for promotion to the post of Conservator of Forests with effect from 01.01.2016 and could be promoted to the post from the date of availability of vacancies but latest by the date of promotion of his junior to the post. The above guidelines require the case of officers for promotion to the post of Conservator of Forests being considered by a Screening Committee. The requirement could be met appropriately keeping in view the fact that the DPC meeting held on 23.12.2019 had recommended applicant’s case for grant of Selection Grade.

As regards promotion to the post of Chief Conservator of Forests, the Govt. of India guidelines dated 18.11.2002 (Annexure/7) lays down the following.

The respondent State Government had granted promotion to the post of Conservator of Forests to several officers junior to the applicant and in some cases even without receiving the confirmation order from the Govt. of India. Since the DPC meeting held on 23.12.2019 had considered and recommended the case of applicant for grant of Selection Grade with effect from 01.01.2015 or from the date of availability of vacancies whichever was later, it can be safely said that there was nothing adverse against him during this period. The applicant, for non-consideration of his case for promotion, remained on a lower post compared to his juniors. This is against the law and also in violation of the constitutional provisions under Article 16. In the background of aforesaid facts and discussions, we are inclined to hold that the applicant was entitled for promotion to the post of Conservator of Forests. We are of the view that interest of justice will be served if the applicant is promoted to the post of Conservator of Forests from the date of availability of vacancies after 01.01.2016 but latest by the date of promotion of any of his juniors.

Accordingly, the respondents are directed to consider and promote the applicant to the post of Conservator of Forests from the date of availability of vacancies after 01.01.2016 but latest by the date of promotion of any of his juniors as per rules within four months from the date of receipt of this order. Before allowing the OA with these directions, we deem it proper to examine the issue of cost in this case .

In this regard, it is important to note that despite the case of applicant for grant of Selection Grade being considered and recommended by the DPC on 23.12.2019 the respondent State did not approve the same till his retirement on 30.09.2020 and cleared it only after filing of this OA and our specific queries on this matter. The respondent State also promoted IFS officers junior to the applicant to the posts of Conservator of Forests, in many cases without the order of confirmation from the GoI, but did not consider the case of applicant on the ground that the confirmation order in respect of him was not received from the GoI. Further, the respondent State could have considered the prayer of applicant for promotion to the post of Conservator of Forests when we gave them opportunity on 08.03.2021 but they confined their approval to the recommendation for the Selection Grade. In view of these facts, we are inclined to hold that the conduct of respondent State was arbitrary and discriminatory which compelled the applicant to seek intervention of the Tribunal and that in the interest of justice OA should be allowed with cost to the respondent State.

Accordingly, the OA is allowed with aforesaid directions and a cost of Rs 10,000/- to the respondent State (respondent no. 2).