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THE GAUHATI HIGH COURT AT GUWAHATI OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Kardak Ete, J.
Shri Netan Tsering - Appellant
Vs.
The State of AP & Ors. - Respondent
Writ Petition (C) No. 250(AP) of 2023
Decided On : 12-04-2024.
NOC - Forest Department Promotion - [Arunachal Pradesh Vigilance Manual-2022, Article 162 of the Constitution of India] - The court considered the requirement of obtaining No Objection Certificate (NOC) and Vigilance Clearance for promotion in the Forest Department. The impugned orders were issued under Article 162 of the Constitution of India and were found to be in the interest of public and administrative exigencies. The court rejected the writ petition and provided the respondent authorities with the liberty to reconsider the case of the petitioner for issuance of NOC if the petitioner is found not to be involved in encroachment, damage, and abetment of encroachment of Government property and land.
Fact of the Case:
The petitioner, a Forester, challenged impugned orders requiring NOC and Vigilance Clearance for promotion, claiming they were contrary to the Recruitment Rules. The petitioner contended that he had not encroached upon any government land and sought reconsideration for NOC issuance.
Finding of the Court:
The impugned orders were found to be in the interest of public and administrative exigencies, issued under Article 162 of the Constitution of India. The court rejected the writ petition but provided the respondent authorities with the liberty to reconsider the case of the petitioner for NOC issuance if found not involved in encroachment.
Issues: The main issue was the requirement of NOC and Vigilance Clearance for promotion, and the petitioner's contention that the impugned orders were contrary to the Recruitment Rules.
Ratio Decidendi: The impugned orders were found to be issued under Article 162 of the Constitution of India and were in the interest of public and administrative exigencies. The court provided the respondent authorities with the liberty to reconsider the case of the petitioner for NOC issuance if found not involved in encroachment.
Final Decision: The writ petition was dismissed, and no costs were ordered.
Heard Mr. B. Picha, learned counsel for the petitioner. And also heard Mr. N. Ratan, learned Additional Advocate General appearing for the State respondents.
2. By filing this writ petition, the petitioner has put to challenge the impugned orders dated 02.04.2013, 06.06.2017, 11.05.2018 and 25.02.2020 issued by the Vigilance Department, Govt. of Arunachal Pradesh, whereby requirement of obtaining No objection Certificate and Vigilance clearance and its procedure are provided, on the ground of having no force of law and contrary to the Deputy Forest Ranger/Forester/Forest Guard Recruitment Rules, 2019.
3. The case of the petitioner, in brief, is that the petitioner has joined as the Forester (Grade-II) on 15.06.1987 in the Department of Environment & Forest, Govt. of Arunachal Pradesh. Since, his joining in the service till date, the petitioner is serving as Forester without any promotion. It is contended that though the petitioner is eligible and was kept under consideration for promotion, due to want of No Objection Certificate (hereinafter referred to as NOC in short) and Vigilance Clearance, the petitioner has been denied of his due promotion.
4. It is contended that during the relevant point of time of the appointment of the petitioner, the Recruitment Rule of 1974 was in force for promotion from the post of Forester to the post of the Deputy Forest Ranger. The method of recruitment was by 100% promotion on the basis of seniority cum merit from amongst the Foresters having rendered good number of services. The Recruitment Rules has been framed and amended from time to time for promotion to the post of Deputy Forest Ranger. The Deputy Forest Ranger/Forester/Forest Guard Recruitment Rules, 2019 ( in short RR, 2019) has been framed finally and is in force. As per the RR, 2019, the method of the recruitment for the post of Deputy Forest Ranger is 100% by promotion amongst the Foresters of the department with minimum five years of regular service. It is contended that even before the present RR, 2019 come into force, as per earlier Recruitment Rules, all along the petitioner was eligible for promotion to the post of Deputy Forest Ranger.
5. The Principal Secretary (Vigilance), Govt. of Arunachal Pradesh vide No. PSH-06/2012-13 dated 02.04.2013, issued an impugned order wherein it provides that for promotion, it is mandatory for every government employee to obtain No Objection Certificate/Vigilance Clearance Certificate from the office of the concern Deputy Commissioner that the government official has not encroached upon any government property nor has caused any damage or abetted encroachment on the public property by a private person.
6. Thereafter, vide order dated 06.06.2017, 11.05.2018, 25.02.2020, it has been made mandatory to obtain Vigilance Clearance from the Under Secretary (Vigilance), Government of Arunachal Pradesh for consideration of promotion. It is also prescribed that Vigilance report in prescribed formal shall be sent by the officer of the concerned department and also provides that Vigilance Clearance shall be denied, if NOC from the concern Deputy Commissioner is not enclosed pertaining to non-encroachment of government land.
7. The Conservator of Forest (HQ)L-I, vide Memo No. FOR/CC-4/25/2016/90-150 dated 02.02.2017 had communicated to process and direct the concerned Divisional Forest Officer/Concerned Officials to obtain NOC from concerned Deputy Commissioner to the effect that Government officials have not encroached upon any government property nor caused any damage or abetted encroachment on public property and submit the same in original with particulars. It has further provided that in case ACRs/APARs, NOC, status with above referred particulars is not submitted latest by 20.03.2017, the office shall not be responsible for non-inclusion of such incumbent’s name in the Departmental Promotion Committee (DPC). In the letter dated 02.02.2017, the name of the petitioner has been reflected at serial No. 57. Th
Executive instructions can supplement statutory rules if they are silent on an issue, and the impugned orders were found to be in the interest of public and administrative exigencies.
Executive instructions can supplement statutory recruitment rules but cannot conflict with them, and requirements for promotion do not violate constitutional rights if applied universally.
No contempt where department denies vigilance clearance and applies sealed cover for promotion due to pending criminal charge-sheet, acting per High Court liberty and law on DPC date, despite vacancy....
An employee's promotion cannot be denied based on vigilance clearance if no departmental proceedings were pending at the time of selection, and expiration of the waiting list does not negate the righ....
The eligibility for promotion and consideration in DPCs is determined by the rules prevalent at the time of consideration, and vacancies are not to be filled invariably by the law existing on the dat....
Governmental executive instructions can supplement existing recruitment rules to prescribe educational qualifications where such rules are silent, provided these instructions are not inconsistent wit....
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