JUDGMENT
N.P. Nawani, Member (A)
1. In this Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has essentially prayed that he be appointed to the Indian Forest Service (for short IFS) w.e.f. 1.4.1981 against the quota of 1981 with all consequential benefits as has been given to similarly situated persons by notification dated 1.4.1981 (Ann. A13) against the fifth clear vacancy. It has further been prayed that he be given seniority in the IFS cadre treating him as having been appointed to IFS w.e.f. 1.4.1981 at par with those who stood in order of merit in the Select List dated 27/28.12.1980 and assign to him the year of allotment on such basis and thereafter confirm him and give to him the Selection Scale and further higher grades from the date when Shri N.K. Mathur whose name appears just over him at Sl. No. 4 in the Select List, was given such grades.
2. The applicant was appointed as Assistant Conservator of Forest (for short ACF) w.e.f. 1.4.1966 and had became eligible for selection to the IFS on completion of 8 years of service on 1.1.1973 as per Indian Forest Services (Appointment by Promotion) Rules, 1966 (for short Rules of 1966). To come to the core of the controversy, without mentioning all the details in the OA, it can be mentioned that it is not disputed that the final seniority list of ACFs was published vide notification dated 26.12.1980 (copy at Ann. A7) and the name of the applicant figured at Sl. No. 14. The applicant was placed under suspension vide Ann. A8 dated 17.1.1980 and after departmental proceedings, he was awarded the punishment of compulsory retirement vide order dated 17.11.1980 (Ann. A9) on the charge of obtaining initial appointment on a false S.C. certificate. Against this order, the applicant preferred a Writ Petition in the High Court of Judicature and obtained a stay order, which was later confirmed on 18.12.1981. The applicant contends that as a logical consequence of the stay order, the applicant ought to have been reinstated. The respondents, however, passed no such order and treated him as an officer in service in a suspended capacity i.e. the position immediately before the stay order and the order of suspension was not revoked by the competent authority. In due course, the Selection Committee met on 27.12.1980 and prepared a Select List wherein the name of the applicant was kept as Sl. No. 5 with the remarks “subject to finalisation of D.E. against him.” First four officers in the Select List (names given at page 10 of the OA) were appointed to IFS vide Government of India notification dated 1.4.1981 (Ann. A 13). Applicant’s first grievance is that even though there was a clear vacancy, he, next in the Select List after the first four officers appointed to IFS on 1.4.1981, was not so appointed and his representation in this regard evoked no positive response. His second grievance is that even officiating promotion was not given
to him under Rule 9 of the IFS (Cadre) Rules, 1966, perhaps on the mistaken beliefs that the applicant continued to remain under suspension even after stay was granted by the High Court whereas the respondents have given officiating promotions to officers junior to him from Sl. N. 6 to 9 i.e. Shri P.S. Gehlot to Shri S.L. Sharma vide order dated 10.11.1981 (Ann. A15). It has also been contended by the applicant that in the Select List, against the name of Shri Gehlot, it was specifically mentioned that it was “subject to clearance of enquiry” and yet he was given officiating promotion, ignoring the senior ranking of the applicant. The applicant preferred an appeal against the order dated 10.11.1981 before the Rajasthan Civil Services Appellate Tribunal (for short RCSAT) which, by its decision dated 30.12.1981 (Ann. A16), directed the State Government to include the name of the applicant provisionally in the impugned order dated 10.11.1981 with a note about his suspension. The order also stated that this inclusion will not confer any right upon the appellant to claim increased emoluments by way of subsistence allowance or otherwise or any other benefit. Against this order, the State Government filed a Writ Petition before the High Court and vide its order dated 21.7.1983 (Ann. A17), the High Court stayed the operation of the order of RCSAT subject to the condition that the name of respondent No. 1 (applicant in this OA) will not be removed from the list. The said Writ Petition came to be disposed of vide judgment dated 20.3.1991 (Ann. A 18) dismissing the Writ Petition but observing that “…..since the enquiry has come to an end and terminated in favour of the respondents, he was entitled to have been placed in the cadre. We are hopeful that this litigation which is pending for more than 10 years will come to an end now.” The applicant thereafter made representations including one dated 23.11.1991 (Ann. A19) enclosing a copy of the judgment dated 20.3.1991 but no action was taken and the applicant had to file a Contempt Petition which was disposed of by the High Court on 20.1,1993 (Ann, A20) with the observations that it was not a fit case lo be continued with and while no contempt was made out, it was open to the petitioner to move the Central Administrative Tribunal for the relief and it was also, inter-alia, noted that any apprehension that the said Tribunal will not entertain his petition because of delay was misconceived in view of the fact that it is always open to the petitioner to make an appeal to the conscience of the learned Members of the Tribunal bringing out the reasons for the delayed approach. It was also observed that “by rejection of this petition of contempt, we do not mean to say a word on merits so as to prejudice the case of either of the parties.” When nothing happened on the matter, the applicant filed OANo. 181/93 but the Tribunal was of the view that Hon’ble High Court could not have passed any observations in the Contempt Petition after constitution of the Central Administrative Tribunal and the applicant had no option but to withdraw his OA with liberty to file afresh after seeking clarification, the High Court passed an order on 11.2.1994 (Ann. A1) and in pursuance thereof, the present A has been filed.
3. In their joint reply respondents Nos. 2, 3, 4 and 6 have taken a preliminary objection that the applicant is seeking appointment to IFS from 1981, while during this long period, a large number of officers have been appointed to the IFS cadre and promoted even to highest posts in the cadre and if the prayer in this OA is accepted, it will result in unsettling of a long settled position, which should not be done as per, the judgments of a number of Courts including the Apex Court. It has also been stated that all those are likely lo be affected if the OA is allowed, have not been impleaded as parties. The respondents have submitted that even though the name of the applicant was included in the Select List prepared during 1980, which was subject to clearance of the departmental enquiry, only 4 officers out of that Select List were appointed to IFS and all those 4 officers were placed above and applicant and therefore the applicant even otherwise had no vested right to be
appointed in the IFS and no cause of grievance had arisen. It has also been asserted that the State Government is under no obligation to till all the available vacancies. The said Select List expired with the preparation of a fresh Select List in the years 1982, 1984, 1985 1986, 1987, 1988, 1992 and 1993 and even though the applicant was considered every time but he was not found fit to be included in the Select Lists. The applicant has, therefore, no legal right to demand that he should be given appointment from a Select List which is not in operation and there is no question of any violation of Articles 14 and 16 of the Constitution of India. It has also been stated that in pursuance of directions of Hon’ble the High Court that the applicant’s name be not removed from the Select List, no such removal was done as far as the relevant Select List of 1980 was concerned. It has also been mentioned that the High Court has not directed that the applicant be given appointment in IFS and this is evident from the fact that the Contempt Petition filed by the applicant before the High Court was dismissed with a finding that no contempt is made out. It has also been contended that the applicant being under suspension could not have been given officiating promotion under the Cadre Rules alongwith officers mentioned by the applicant and even the order of the RCSAT did not help the applicant in any manner as it contained a direction to only include the name of the applicant in the order dated 10.11.1991 “provisional with no right or benefit.”
4. We have heard the learned Counsel for the parties and perused the material on record. Although on reply has been filed on behalf of respondent No. 1, their Counsel stated during the arguments that he supports the averments made in the reply of respondents Nos. 2, 3, 4 and 6 and the arguments advanced by the learned Counsel for the said respondents. No rejoinder has been filed by the applicant to the reply filed by respondent Nos. 2, 3, 4 and 6.
5. As regards the preliminary objections raised by the respondents, we have considered the matter and in view of the special circumstances in this case wherein the applicant had to move the RCSAT, the High Court of Judicature at Jaipur, the Jaipur Bench of CAT on a number of occasions, we condon the delay. This, however, does not mean that we would not take into consideration the impact of delay, if any, After giving our careful consideration to the contentions raised, we feel that there arc really two issues on which we are required to adjudicate, the first and the main issue is the claim of the appl icant that he should be appointed to the IFS on the strength of the name having been included in the Select List of 1980. The second issue relates to the officiating promotion having been denied to the applicant while officers junior to him in the said Select List, and one of them also facing the departmental inquiry, were given officiating promotion.
6. As regards the first issue, it will be useful to first examine and note the legal position. The relevant regulations contained in IFS (Appointment by Promotion) Regulations, 1966 (Source: All India Service Manual by R.N. Mishra, 5th Edition) are extracted below :
Regulation 5(5) : "(5) The list so prepared shall be reviewed and revised every year : [Provided that the name of any officer so included in the list, shall be treated as provisional, if the State Government, withhold the integrity certificate in respect of such officer or any proceedings are contemplated or pending against him or anything adverse against him has come to the notice of the State Government]. Regulation 7(3) and 7(4) : "(3) The list as finally approved by the Commission shall from (sic form) the list of the members of the State Forest Service. (4) The Select List shall ordinarily be in force until its review and revision, effected under sub-regulation (4) of Regulation 5, is approved under sub-regulation (1) or, as the case may be, finally approved under sub-regulation (2);" [Provided that no appointment to the service under Regulation 9 shall be made after the meeting of fresh Committee to draw up a fresh list under Regulation 5 is held]. Regulation 8(1) and 8(2) : "(1) Appointment of members of the State Forest Service from the Select List to post borne on the State cadre or the joint cadre of a group of State as the case may be, shall be made in accordance with the 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 appears in the Select List. (2) 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:" xxxxx Provided further that where administrative exigencies so require, such appointments made be continued in a cadre post beyond a period of three months with the prior concurrence of the Central Government. Regulation 9(1) : "(1) Appointments of members of the State Forest Service to the Service shall be made by the Central Government on the recommendation of the State Government in the order in which the names of the members of the State Forest Service appear in the Select List for the time being in force.
Provided further that the appointment of an officer, whose name has been included in the Select List provisionally, under proviso to sub-regulation (4) of Regulation 5, shall be made after his name is made unconditional by the Commission on the recommendations of the State Government during the period the Select List remains in force. While making appointment of an officer junior to a Select List officer whose name has been included provisionally in the Select List, one post will have to be kept vacant for such a provisionally included officer.”
7. It will be clear from the regulations extracted above that as per proviso to Regulation 9(1), appointment of the applicant, whose name was included in the Select List provisionally to the IFS could not have been made unless his name was made unconditional by the UPSC on the recommendations of the State Government during the period the Select List remained in force. It is an uncontested fact that the Selection Committee met in 1982 to prepare a fresh list. Regulation 7(4) provides that the Select List will remain in force until its review and revision. Thus the Select List of 1980 got expired the day the Selection
Committee met in 1982. There is neither any averment on behalf of the applicant nor has any document been produced before us to the effect that the name of the applicant had been made unconditional during the period the Select List of 1980 was in operation. On this count itself, the claim of the applicant for appointment in IFS fails. He could not have been appointed until and unless his name was made unconditional. Further, it has been the case of the respondents that after filling up the first four vacancies by the first four rankers in the Select List of 1980, the State Government decided not to fill up any other vacancy, including the fifth vacancy which the applicant says was available. The Sate Government was required to recommend officers for appointment in IFS from the Select List strictly in the order in which their names appear as required by Regulation 8(1) and Regulation 9(1). In view of the fact that the name of the applicant was at Sl. No. 5 in the Select List and the appointments were made in respect of Sl. Nos. 1 to 4 only and thereafter no more appointments were made till the expiry of the said Select List, no cause of action has arisen as far as the applicant is concerned. In fact, even if an appointment was made in respect of an officer who was at a place lower than the applicant but whose name was not provisional could not have been given rise to a cause of action because the applicant’s name was provisional and as per the scheme of things in the Promotion Regulations, his appointment could not have been made in IFS unless his name was made unconditional, although a vacancy would have been kept for him.
8. From the above discussions and the legal position, we are of the considered view that the applicant could not have been appointed to IFS on the basis of provisional inclusion of his name in the Select List of 1980 and it will not be possible for us to give any direction to the respondents to consider the applicant for being appointed to IFS on the basis of 1980 Select List. As regards the Select Lists prepared subsequently in the year 1982, 1984, 1985, 1986, 1987, 1988, 1992 and 1993, it has been stated by the respondents that the applicant was considered on each occasion but on the basis of overall assessment of the officers in the zone of consideration made by the Selection Committee, his name was not included in any of the subsequent Select Lists.
9. At this juncture, it will be worthwhile to mention that the observations of Hon’ble the High Court in the DB Civil Writ Petition No. 1390/83 decided on 20.3.1991 to the effect that “We are informed that the order of this Court dated 9.3.89 has been partially implemented as he is only reinstated but has not been appointed to the post of IFS despite of the fact that he was selected and was on selected list, which was prepared on 1.1.81. We have already observed that the only rider if any, was the pendency of inquiry against the respondent and since the inquiry has come to an end and terminated in favour of the respondent, he was entitled to have been placed in the cadre of the IFS as his juniors have been placed in the cadre” have also been considered by us. It has to be noted that these were in the nature of observations and no directions were issued by the Hon’ble High Court with regard to appointment of the applicant in the IFS. No doubt, the penalty of compulsory retirement imposed on the applicant was set-aside and quashed by the High Court vide its judgment dated 9.3.1989. However, the fact remains that the name of the applicant was included in the 1980 Select List on provisional basis and the respondents maintained his name in the Select List till the said Select List expired with the meeting of the Selection Committee for preparation of the new Select List in 1982. However, his name was not made unconditional and unless his name was made unconditional as per provisions of Regulation 9(1) the applicant could not have been appointed in IFS on promotion on the basis of 1980 Select List. Further, since his name was not included in the subsequent Select Lists after due consideration, the question of his appointment in IFS could not arise at all.
10. We, therefore, come to the considered conclusion that as far as the first issue relating to the appointment of the applicant in IFS on the basis of the Select List of 1980, the legal position and facts and circumstances of the case clearly establish that there was nothing wrong in the action of the respondents in not appointing the applicant to IFS on the basis of the Select List of 1980. His prayer in this regard, including the prayer for giving consequential benefits, cannot, therefore, be accepted.
11. The second issue raised by the learned Counsel for the applicant is regarding officiating promotion given on 10.11.1981 to officers who were at Sl. No. 6 to 9, i.e. who were all lower in the Select List as compared to the applicant who was at Sl. No. 5 and also included Shri Gehlot whose name was also included with the remark that “subject to clearance of enquiry.” In this regard, we find that there is no specific prayer in this OA and as will be evident from the relief clause, the applicant essentially wants to be appointed to the IFS against the quota of 1981 w.e.f 1.4.1981 alongwith similarly situated persons appointed to IFS vide notification dated 1.4.1981 (Ann. A13). His subsequent prayers are all relatable to consequential benefits resulting from such promotion. However, even if we were to consider the question of benefit of officiating promotion to the applicant under the general relief clause of “any other order or direction which may be considered just and proper,” we find that the applicant has not been able to establish his case in this regard. Moreover, there is also the question of limitation. The officiating promotions were given as far back as 10.11.1981 and at this moment of time when the applicant has already retired it is difficult for us to ignore the delay and also the well settled legal position that settled things should not be unsettled after a substantial lapse of time. It is not only these two considerations which go against the applicant but also the fact that when the officiating promotions were given on 10.11.1981, the applicant was under suspension. The contention of the respondents that a suspended officer cannot be given a promotion during the period of suspension is perfectly valid. The penalty of compulsory retirement imposed on the applicant was quashed by the High Court only on 9.3.1989 and it could be contended on behalf of the applicant that unless there is a fresh order of holding departmental enquiry against him, he could not have been considered to be on deemed suspension. However, the officiating promotions have been given on 10.11.1981 arid the fact remains that on that date the applicant was under suspension and even the stay he was able to obtain on 17.11.1980/ 21.11.1980 was only with respect to stay of his compulsory retirement and, therefore, his contention that because of the stay he could have been also given officiating promotion in view of the fact that his junior Shri Gehlot, inclusion of whose name was also subject to clearance of enquiry, was so promoted does not have any force. Therefore, notwithstanding the fact that there was no specific relief sought with regard to the officiating promotion and there were valid grounds for not considering such a request as it is hopelessly time barred, even on the merits no case is made out to the effect that the applicant should have also been promoted on officiating basis on 10.11.1981 alongwith four officers whose name figured in the 1980 Select List and were at places lower than that of the applicant in the said Select List. We have, therefore, no other option but to reject such a request.
12. In view of the above discussions, we are of the considered opinion that the application does not succeed and is liable to be rejected. The OA is accordingly dismissed with no order as to costs.