1. Promotion to Indian Forest Service — Clubbing of vacancies — Challenge under Regulation 5 of IFS (Appointment by Promotion) Regulations, 1966 — Review selection process. (Para 2 , 3 , 4 , 6 , 7 )
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2021 Supreme(SC) 549
SUPREME COURT OF INDIA
AJAY RASTOGI, ABHAY S. OKA, JJ.
Union of India, through the Secretary Ministry of Environment and Forest – Appellant
Versus
Trilok S. Bhandari and Others – Respondents
Civil Appeal No. 6091 of 2021, SLP (Civil) No. 21736 of 2007
Decided On : 29-09-2021
Important Points
The Court held that officers not selected in a review DPC cannot be adjusted against notional vacancies without challenging the review process. However, under Article 142, an officer who continued in a cadre due to a court's interim order until retirement is entitled to that cadre's retiral benefits.
Subject
Administrative Law - Judicial Review
Act Referred
Headnote
Constitution of India,1950 - Article 142 - IFS (Appointment by Promotion) Regulations, 1966 - Regulation 5 - Clubbing of vacancies is not permissible - Forest Service - Recommendations and appointments were made by notification - Notional vacancies and consequential pensionary benefits - Respondent was the member of State Forest Service of UP Cadre and after clubbing of the earlier year vacancies promotions were made to IFS cadre with effect from 6th premise that clubbing of vacancies is not permissible and it is in violation of Regulation 5 of the IFS (Appointment by Promotion) Regulations, 1966 - Court have no manner of doubt that it was incumbent upon the respondents to prepare separate year wise vacancies restricting zone of consideration in relation to vacancies of each year not to suggest that officers who are included in year wise select list are to be given promotion retrospectively from the year in which they are selected - Respondent was earlier in the list of officers promoted under the IFS cadre by an order but when review recommendations were made pursuant to the order of Tribunal, he did not find place in list of officers promoted 1st respondent stood retired from service on attaining superannuation– Held, Respondent no. 13 who could not be appointed on recommendations review selection committee in year 2005 and also for subsequent year vacancies in IFS cadre but as a member of the State Forest Service, his pay scale at least could not have been detrimental to his interest as what being paid to him as an IFS officer - It cannot be denied that respondent no. 13 who could not be appointed against subsequent year vacancies has no right to continue and fact is that the officer has not challenged appointments made on the recommendations of review selection committee or recommendations made by the selection committee against vacancies of subsequent years cannot be ignored that he was allowed to continue till he attained superannuation a defacto IFS officer because of interim order passed by this Court – Court are of the considered view that order passed by the High Court is unsustainable in law for the reason that in the absence of the recommendations made by review selection committee pursuant to which the appointments there was no justification for the High Court to pass such omnibus directions more particularly when officer on whose insistence writ petition was filed, stood retired from service in November 1996 on attaining the age of superannuation and the judgment in Union of India and Others on which the Division Bench blindly placed reliance, in our considered view, has no application in the facts of the instant case - brought to our notice and other officers respondents who have been appointed against the subsequent year vacancies in IFS Cadre have lost their interest and so far as respondent no. 13 is concerned, who has contested this matter before this Court, although was not selected against vacancies of subsequent years but was allowed to continue as an Officer of IFS cadre for all practical purposes, remained a defacto member of IFS cadre because of the interim order passed by this Court and stood retired from service IFS officer, while exercising our power under Article 142 of the Constitution of India – Court direct concerned authorities that officer may be treated to be an Officer of IFS cadre and his pension and all other retiral benefits be computed treating him to be a member of IFS cadre for all practical purposes – Appeal allowed.
Legal Category Hierarchy
Advocates appeared:
For the Petitioner(s): Mr. Gurmeet Singh Makker, AOR
For the Respondent(s): Mr. Ravindra Raizada, Sr.Adv. Mr. Rajeev Kumar Dubey, Adv. Mr. Ashiwan Mishra, Adv. Mr. Kamlendra Mishra, AOR Ms. Binu Tamta, AOR Mr. Dhruv Tamta, Adv. Ms. Rekha Pandey, AOR Mr. Pawan Mishra, Adv. Mr. Raghav Pandey, Adv. Mr. Anil Kumar Jha, AOR Mr. Adarsh Upadhyay, AOR Mr. T. Mahipal, AOR
For the Petitioner(s): Mr. Gurmeet Singh Makker, AOR
For the Respondent(s): Mr. Ravindra Raizada, Sr.Adv. Mr. Rajeev Kumar Dubey, Adv. Mr. Ashiwan Mishra, Adv. Mr. Kamlendra Mishra, AOR Ms. Binu Tamta, AOR Mr. Dhruv Tamta, Adv. Ms. Rekha Pandey, AOR Mr. Pawan Mishra, Adv. Mr. Raghav Pandey, Adv. Mr. Anil Kumar Jha, AOR Mr. Adarsh Upadhyay, AOR Mr. T. Mahipal, AOR
Table of Contents
2. Permissibility of clubbing vacancies — Validity of review selection recommendations — Right to continue in cadre based on interim stay orders. (Para 13 , 14 , 16 )
3. High Court erred in granting omnibus relief without challenge to review recommendations — Reliance on inapplicable precedent — De facto service due to interim order. (Para 12 , 15 , 19 , 20 , 22 )
4. Relief cannot be granted for adjustment against vacancies if the review selection recommendations excluding the candidates were not challenged. (Para 20 )
5. High Court judgment quashed and set aside — Retiral benefits of one respondent protected as IFS officer under Article 142. (Para 21 , 22 , 23 )
6. Is the clubbing of vacancies for promotion to the Indian Forest Service permissible under the 1966 Regulations?
No, the court noted that clubbing of vacancies is not permissible and is in violation of Regulation 5 of the IFS (Appointment by Promotion) Regulations, 1966. (Para 3 , 13 )
7. Can a court grant relief for adjustment against vacancies if the review selection recommendations were not challenged?
No, the court held that in the absence of a challenge to the review selection recommendations, there is no justification for granting omnibus directions for adjustment. (Para 20 )
8. Can an officer who continued in a cadre solely due to an interim order be granted retiral benefits of that cadre?
Yes, the court may exercise its power under Article 142 of the Constitution to protect the rights and retiral benefits of an officer who served as a de facto member of a cadre due to a court-ordered status quo. (Para 12 , 19 , 22 )
JUDGMENT :
AJAY RASTOGI, J.
1. Leave granted.
2. The instant appeal is directed against the judgment and order dated 14th November, 2006 passed by the High Court of Uttarakhand directing the present appellant to adjust the original petitioner-1st respondent and other persons like him who were earlier promoted in the cadre of Indian Forest Service (hereinafter being referred to as the “IFS”) in the year 1996 against the notional vacancies and consequential pensionary benefits keeping in view the judgment of this Court in Union of India and Others vs. Vipinchandra Hiralal Shah , 1996 (6) SCC 721.
3. The facts in brief which are relevant for the present purpose are that the 1st respondent was the member of State Forest Service of UP Cadre and after clubbing of the earlier year vacancies of 1984-96, promotions were made to the IFS cadre with effect from 6th September, 1996 by an Order dated 16th September, 1996 that came to be challenged by filing of an original application before the Central Administrative Tribunal (hereinafter being referred to as the “Tribunal”) on the premise that clubbing of vacancies is not permissible and it is in violation of Regulation 5 of the IFS (Appointment by Promotion) Regulations, 1966 (hereinafter being referred to as “Regulations 1966”) based on the judgment of this Court in Union of India and Others (supra). The Tribunal allowed the application and quashed the order of promotion dated 10th September, 1997 as follows:
“30. In view of the foregoing discussions, we have no manner of doubt that it was incumbent upon the respondents to prepare separate year wise vacancies restricting zone of consideration in relation to the vacancies of each year. This it is, however not to suggest that officers who are included in the year wise select list are to be given promotion retrospectively from the year in which they are selected. This was the proposition advanced.....and we reject the same.
31. The Impugned select list is accordingly quashed only on the short point that this was a combined select list of vacancies which arose during a period of nearly 12 years. We direct the respondents to prepare year wise select list by holding review DPC in accordance with the law. Officers who have already been promoted on the basis of impugned zsselect list need not, however, be reverted but their further continuance as members of IFS cadre would depend on the outcome of the review DPC which shall be held by the Respondents within a period not exceeding 2 months....”
4. The order of the Tribunal came to be challenged in Civil Miscellaneous Writ Petition No. 2663 of 1998 which came to be dismissed by a judgment dated 11th May, 2001 upholding the order of the Tribunal pursuant to which the review recommendations and appointments were made by notification dated 8th July, 2005 followed with notification dated 4th/5th October, 2005.
5. It may be relevant to note that the recommendations which were made by notifications dated 8th July, 2005 and 4th/5th October, 2005 pursuant to which the officers were promoted in the IFS were never a subject matter of challenge at least in the instant proceedings.
6. The 1st respondent was earlier in the list of officers promoted under the IFS cadre by an order dated 16th September, 1996 but when the review recommendations were made pursuant to the order of the Tribunal, he did not find place in the list of officers promoted by notifications dated 8th July, 2005 and 4th/5th October, 2005. The 1st respondent stood retired from service on attaining the superannuation on 30th November, 1996 just three months after the promotions made in the first instance by an order dated 16th September 1996.
7. The 1st respondent filed a writ petition before the High Court of Uttarakhand seeking writ of mandamus that such of the officers whose name did not find place in the review recommendations made by the selection committee pursuant to which appointments were made by notifications dated 8th July, 2005 and 4th/5th
