Jharkhand High Court
Vijay Kumar vs The Union Of India Through The Secretary on 30 January, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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W.P.(S) No. 2841 of 2022
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Vijay Kumar, aged about 62 years, son of Late Satya Narayan Ram,
resident of Flat No.201, Baidnath Sundri Bhawan, P.O.-G.P.O.-Ranchi,
P.S. Lower Bazar, Ranchi, Kantatoli, Ranchi, Pin Code 834001.
... ... Petitioner
Versus
1. The Union of India through the Secretary, Ministry of Environment,
Forest, Climate Change, Indira Paryawaran Bhawan, P.O. Jorbag, P.S.
Aliganj, New Delhi-110003.
2. The State of Jharkhand through the Chief Secretary, Project Building,
P.O. & P.S. Dhurwa, District-Ranchi.
3. Principal Secretary, Department of Forest, Environment & Climate
Change, Nepal House, P.O. & P.S. Doranda, District Ranchi-834002.
4. Principal Chief Conservator of Forest (Head of Forest Force), Van
Bhawan, P.O. and P.S. Doranda, District-Ranchi-834002.
.. ... Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
.....
For the Petitioner : Mr. Bhanu Kumar, Advocate
For the Respondents : Mr. Indranil Bhaduri, SC-IV
Mrs. Bakshi Vibha, Advocate
.....
C.A.V./Reserved on 04.01.2024 Pronounced on 30/01/2024
Per Sujit Narayan Prasad, J.:
1. The instant writ petition is under Article 226 of the Constitution of
India, whereby and whereunder, the order dated 14.02.2022 passed by
the learned Central Administrative Tribunal in O.A. No. 379 of 2020 to
the extent of denial of the claim of the writ petitioner for consideration
of his case for promotion to the post of Chief Conservator of Forest on
the ground that the writ petitioner has not been able to establish his
right for promotion to the post of Chief Conservator of Forest since
there is no averment by the writ petitioner about the availability of
vacancies to the post or any infringement of his constitutional/legal
rights on account of promotion of any of his juniors to the post before
his retirement.
2. The brief facts of the case as per the pleading made in the writ petition,
which require to be enumerated herein, read as under:
It is the admitted case as per the pleading made in the writ
petition as referred hereinabove that the writ petitioner was inducted
into All India Service, i.e., Indian Forest Service and was allotted 2002
Batch. He became entitled for the post of Conservator of Forest and
Chief Conservator of Forest.
According to the writ petitioner, a guideline was issued on
18.11.2002 by the Ministry of Environment and Forest, Government of
India providing therein an IFS Officer becomes eligible for Selection
Grade after 13 years of service and for promotion to the post of
Conservator of Forest after 14 years of service and to the post of Chief
Conservator of Forest after 18 years of service.
Further case of the writ petitioner is that he was confirmed in
service by the Government of India w.e.f. 24.05.2014 but 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 Chief Conservator of
Forest. The instance has been given by referring the name of one of his
juniors, namely, Sri S.R. Natesh, an IFS Officer of 2003 Batch in
Jharkhand Cadre w.e.f. 06.12.2016 and promoted to the post of
Conservator of Forest w.e.f. 27.02.2018.
The writ petitioner being aggrieved with the said decision of the
authority in not granting promotion to the post of Conservator of Forest
and Chief Conservator of Forest had filed original application before
the Tribunal seeking the aforesaid relief.
The respondent-State of Jharkhand had filed written statement
and has opposed such relief having been sought for by the writ
petitioner inter alia on the ground that the promotion is not a
fundamental right and further the writ petitioner was not granted the
Selection Grade as he was confirmed by the Government of India only
on 08.11.2019. Further ground has been taken that as per the
Government of India guideline, grant of selection grade and promotions
to higher ranks was subject to availability of vacancies in these grades.
The learned Tribunal after taking note of the rival submissions
made on behalf of the parties, has allowed the prayer made on behalf of
the writ petitioner so far as it relates to the promotion to the post of
Conservator of Forest is concerned which is based upon the ground
taken by the writ petitioner of grant of promotion to one of his juniors,
namely, Sri. S. R. Natesh with a direction upon the concerned
respondent to consider and promote the writ petitioner to the post of
Conservator of Forest from the date of availability of vacancies after
01.01.2016. Further, so far as the claim of the writ petitioner for
promotion to the post of Chief Conservator of Forest is concerned, the
same was denied on the ground of non-availability of vacancies which
has been considered to be an essential condition as the length of service
to the post of Chief Conservator of Forest. The Tribunal has given
finding that although the writ petitioner fulfilled the 18 years of service
as on 01.01.2020 but there is no averment by the writ petitioner about
the availability of vacancies to the post or any infringement of his
constitutional/legal rights.
3. The writ petitioner has filed this writ petition by assailing the part of
the order to the extent, whereby and whereunder, the claim for
promotion to the post of Chief Conservator of Forest has been declined
to be granted in his favour inter alia on the main ground of non-
disclosure of the availability of vacancies to the post and as such, the
same has been considered to be a ground for negating the said claim.
4. It has been contended that the availability of vacancies is under the
domain of the appointing authority, i.e., the State of Jharkhand who
was to disclose about the availability of vacancies but without
considering the aforesaid fact, the aforesaid prayer for grant of
promotion to the post of Chief Conservator of Forest has been denied
merely on the ground that the writ petitioner has failed to provide the
availability of vacancies to the post of Chief Conservator of Forest.
5. The ground has been taken that the writ petitioner has become eligible
after completion of 18 years of service which he has completed on
01.01.2020, as such, the Tribunal ought to have called upon the State to
file an affidavit with respect to the fact that whether the vacancy on that
date was available or not but having not done so, the Tribunal has
committed gross illegality in denying the aforesaid claim.
6. The learned counsel for the petitioner has further taken the ground that
it is not that there is ever averment on the part of the State of non-
availability of vacancies if that would have been there then the matter
would have been different but casting accountability upon the State to
provide the availability of vacancies since the claim of the writ
petitioner for grant of promotion to the post of Chief Conservator of
Forest has been rejected hence, the aforesaid prayer was required to be
considered.
7. The submission has also been made by referring to the counter affidavit
filed on behalf of the State wherein the fact about the availability of
vacancies as on 01.01.2020 has been admitted which was 07 (seven) in
number and hence, it was the bounded duty of the State authority to
convene the meeting of the Departmental Promotion Committee so as
to consider the case of the writ petitioner since the writ petitioner had
already completed 18 years of service becoming eligible to hold the
post of Chief Conservator of Forest.
8. Further ground has been taken by referring to the Office Memorandum
dated 10.04.1989wherein the specific policy decision has been made
out to convene meeting of Departmental Promotion Committee for
achieving the basic object so as not to deprive one or the other
members of the service in getting the benefit of promotion as also the
department may be allowed to run smoothly but the State has not taken
any pain to convene the meeting of the Departmental Promotion
Committee even though vacancies were there and meanwhile, the writ
petitioner retired and now the ground has been taken by the State by
filing affidavit that the writ petitioner is not entitled for promotion to
the said post once he has been superannuated from service.
9. The contention has been raised that if the writ petitioner has
superannuated from service on attaining the age of superannuation and
meanwhile, the meeting of Departmental Promotion Committee has not
been convened, it is the gross laches on the part of the State in not
convening the meeting of Departmental Promotion Committee and by
the aforesaid conduct the writ petitioner's valuable right has been
denied for consideration of promotion to the post of Chief Conservator
of Forest.
10. The contention has been raised that if there is laches on the part of the
State, then the same cannot come in the way of consideration of the
case of the writ petitioner for promotion to the post of Chief
Conservator of Forest even though, the writ petitioner in the meanwhile
has superannuated. The ground has also been taken that the denial of
the benefit of promotion to the post of Chief Conservator of Forest
merely because the vacancies were not disclosed by the writ petitioner
cannot be a ground to deny the said claim for the reason that if the
vacancies even not been apprised to the Court regarding its availability,
it is the laches on the part of the State which ought to have been taken
into consideration by the learned Tribunal but instead of considering in
favour of the writ petitioner it has been considered against the writ
petitioner casting liability upon the writ petitioner, that he has failed to
disclose the availability of vacancies while in the affidavit filed before
this Court, the vacancies were all available being 07 in number and if in
such circumstances the case of the writ petitioner has not been
considered, thought he became eligible from 01.01.2020, then it is the
gross laches on the part of the State and for the same, the writ petitioner
cannot be allowed to suffer even though he has retired from service.
11. The learned counsel for the writ petitioner based upon the aforesaid
ground has submitted that the part of the order dated 14.02.2022,
whereby and whereunder, the claim of the writ petitioner for grant of
promotion to the post of Chief Conservator of Forest has been denied,
is not sustainable in the eyes of law.
12. Per contra, Mr. Indranil Bhaduri, learned SC-IV appearing for the
respondent-State of Jharkhand has defended the order passed by the
learned Tribunal by taking the following grounds:
(i) That in absence of any provision for grant of retrospective
promotion, there cannot be promotion to be granted in favour of
the writ petitioner.
(ii) It is not that the case of the writ petitioner has not been
considered rather the case of the writ petitioner has been
considered by the Departmental Promotion Committee itself
based upon the Circular dated 28.09.2016 issued by the
Government of India, Ministry of Environment and Forest
appended as Annexure-9 to the writ petition, whereby and
whereunder, the case of the writ petitioner was considered in the
light of the condition stipulated therein under Note-1 of the Rule
3 as available at page-48 as per which he became entitled to be
considered on non-functional basis and in that circumstances, his
case is to be considered in the light of the promotion having been
granted in favour of the members of Indian Administrative
Service and while considering the same, the case of the writ
petitioner has been found to be not sustainable since one of the
officers who happens to be the senior to the writ petitioner has
been granted promotion after his retirement and as such, it is
incorrect on the part of the writ petitioner to say that the case of
the writ petitioner has not been considered for grant of promotion
to the post of Chief Conservator of Forest.
(iii) The ground has been taken that if the Departmental Promotion
Committee has not convened the meeting then on that ground the
writ petitioner has got no right to claim promotion since non-
convening of the meeting of the Departmental Promotion
Committee cannot be a ground to claim the promotion with
retrospective effect.
13. Learned counsel has taken aid in order to substantiate these grounds of
the judgment rendered by the Hon'ble Apex Court in Baij Nath
Sharma vs. Hon'ble Rajasthan High Court at Jodhpur and Anr.,
reported in 1988 SCC (L&C) 1754.
14. Learned counsel for the respondent-State based upon the aforesaid
ground has submitted that the impugned order does not suffer from any
illegality, hence, the writ petition lacks merit and the same is fit to be
dismissed.
15. We have heard the learned counsel for the parties, perused the finding
recorded by the learned Tribunal as also the pleading of the respective
parties which has been filed before this Court.
16. This Court, on appreciation of the argument advanced on behalf of the
parties and the material available on record and more particularly the
finding recorded by the learned Tribunal to the effect of ground taken
in denying the claim of the writ petitioner for promotion to the post of
Chief Conservator of Forest which is the non-disclosure by the writ
petitioner about the availability of vacancies as also of non-disclosure
of the names of juniors who have been granted promotion to the said
post, is of the view that the question which requires consideration is
(i) As to whether the disclosure of vacancies is within the domain of
the officer concerned or it is within the domain of the State;
(ii) Further question before this Court which requires consideration
that if the meeting of Departmental Promotion Committee has
not been convened even though the vacancies were available on
the day when the writ petitioner has attained eligibility as per the
rules of promotion which requires completion of 18 years of
service for consideration of promotion to the post of Chief
Conservator of Forest;
(iii) Whether the reliance which has been put by the learned counsel
for the State on the judgment rendered by the Hon'ble Apex
Court in the case of Baij Nath Sharma vs. Hon'ble Rajasthan
High Court at Jodhpur and Anr. (supra) is applicable in the
facts and circumstances of the case.
(iv) Whether the provision of Rule as notified in the notification
dated 28.09.2016 which contains the provision as under Note-1
to consider the case for promotion according to the State that the
said condition will be applicable to the Officer concerned who
has been superannuated from service by considering them to be
promoted on non-functional basis.
17. All the issues since are interlinked, as such, the same are being
discussed together and answered hereinbelow.
18. The admitted fact herein is that the writ petitioner has approached the
learned Tribunal for two-fold prayers:
(i) For consideration of grant of promotion to the post of Conservator
of Forest;
(ii) For consideration of grant of promotion to the post of Chief
Conservator of Forest.
19. The learned Tribunal has allowed the relief so far as it relates to
consideration for grant of promotion to the post of Conservator of
Forest with a specific direction to consider the same within the specific
period but the claim of the writ petitioner for grant of promotion to the
post of Chief Conservator of Forest has been denied for two fold
reasons:
(i) That the number of vacancies has not been made available by the
writ petitioner;
(ii) That the writ petitioner has failed to disclose the names of any of
his juniors who have been granted promotion without considering
the case of the writ petitioner.
20. This Court, before answering the issues, deems it fit and proper to deal
with the reliance which has been placed upon by the learned State
counsel on the Rule notified on 28.09.2016 which contains the
provision for grant of promotion on non-functional basis. For ready
reference, the same is being referred as under:
"Whenever any Indian Administrative Service officer of a particular
batch is posted at the Centre to a Level 10,11 ,12 or Level 13, 14 of the
Pay Matrix the members of the Service, who are senior to such Indian
Administrative Service officer by two years or more and have not so far
been promoted to that particular level, shall be granted the same Level
on non-functional basis in their respective State cadres from the date of
posting of the Indian Administrative Service officer at the Centre in that
particular Level and in the case of those members of the Service who
are posted at the Centre, at the time of grant of Non-Functional
upgradation, their basic pay will be fixed by granting one increment in
the existing pay in the applicable existing Level subject to the minimum
of the Level of non-functional upgradation, and they will not be granted
pay at the higher Level as the case may be. Such officers will continue
getting the pay of the post against which they have been appointed at
the Centre under the Central Staffing Scheme along with Central
Deputation Tenure Allowance (CDTA), wherever applicable."
21. Learned counsel for the State has tried to impress upon the court that
the moment the writ petitioner has superannuated from service on
attaining the age of superannuation, he will be said to be promoted on
non-functional basis in view of Note-1 as quoted and referred
hereinabove.
22. We have gone through the same and have found therefrom that the
same stipulates that whenever any Indian Administrative Service
officer of a particular batch is posted at the Centre to a Level 10,11 ,12
or Level 13, 14 of the Pay Matrix the members of the Service, who are
senior to such Indian Administrative Service officer by two years or
more and have not so far been promoted to that particular level, shall be
granted the same Level on non-functional basis in their respective State
cadres from the date of posting of the Indian Administrative Service
officer at the Centre in that particular Level and in the case of those
members of the Service who are posted at the Centre, at the time of
grant of Non-Functional upgradation, their basic pay will be fixed by
granting one increment in the existing pay in the applicable existing
Level subject to the minimum of the Level of non-functional
upgradation, and they will not be granted pay at the higher Level as the
case may be. Such officers will continue getting the pay of the post
against which they have been appointed at the Centre under the Central
Staffing Scheme along with Central Deputation Tenure Allowance
(CDTA), wherever applicable.
23. The argument which has been advanced that the provision as contained
under Note-1 is applicable to the retired person but we are not
impressed with the same reason being that the same stipulates about the
fact that how to deal with the members of the Indian Forest Service
who are posted in the said cadre and who are posted in the Central
cadre.
24. The policy decision has been carved out to have a mechanism to
consider the case of the State cadre forest service officers and the
officers posted at the central cadre which has been decided to be
granted the benefit on non-functional basis in comparison to that of the
members of the Indian Administrative Service to a different level of the
pay scale who are senior to such Indian Administrative Service Officer
by two years or more and have not so far been promoted to that
particular level, meaning thereby, if the member of the Indian Forest
Service whether posted in the State cadre or the Central cadre even
though have been found to be senior to the member of the Indian
Administrative Service then the mechanism has been carved out to
grant them the benefit of the promotion to that particular level on non-
functional basis in the respective State cadre.
25. Further if the officers of the Indian Forest Service are posted in the
Central Cadre, in that case, at that time of grant of non-functional
upgradation from basic pay will be fixed by granting one increment in
the existing pay.
The word contained therein that "pay matrix", fixation of pay"
and the "increment in the existing pay" signifies that the same relates to
the benefit to be granted in favour of the members of the Forest Service
cadre of the respective State or Centre.
If the entire provision as contained under Note-1 will be
scrutinized then we have not found anything therein that the same is
applicable for the superannuated members of the Forest Service,
therefore, this Court is of the view that whatever argument has been
placed with the Note-1 as referred hereinabove is applicable to the
superannuated members of the Indian Forest Service is having no
substance.
26. Now coming to the question regarding the entitlement of the writ
petitioner for consideration of his promotion to the post of Chief
Conservator of Forest which has been denied merely because that the
writ petitioner has failed to bring before the learned Tribunal the
number of available vacancies.
27. The aforesaid finding, according to our considered view, suffers from
error due to the simple reasons that when the member of the cadre has
approached the adjudicatory body claiming a relief regarding
promotion then it is the State's duty to bring on record before taking the
ground that in absence of availability of vacancies there cannot be any
consideration for promotion to the higher post. The members of the
service since are having no access to the number of vacancies said to be
exact in number so as to find it fit for consideration of the case
depending upon the availability of vacancies, as such, it was incorrect
on the part of the learned Tribunal to take the ground that the writ
petitioner has failed to produce the available number of vacancies.
28. Further when the State has filed written statement before the learned
Tribunal wherein no such ground has been taken regarding non-
availability of vacancies and in that aspect of the matter, it was the
bounded duty of the learned Tribunal to call for a report from the State
regarding the availability of the vacancies so as to come to a conclusion
that in absence of vacancies it is not a fit case for issuance of direction
for consideration of the case of the writ petitioner for grant of
promotion to the post of Chief Conservator of Forest.
29. Learned Tribunal, instead of calling upon the number of available
vacancies, has casted liability upon the writ petitioner by denying the
said claim, which according to our considered view, cannot be said to
be just and proper reason for denial of the said claim.
30. Further, the ground has been taken that the writ petitioner has failed to
point out the name of the juniors for the purpose of making claim for
promotion.
31. We are conscious of the fact that the grant of promotion is not a
fundamental right but certainly its consideration is fundamental right as
has been held by the Hon'ble Apex Court in Ajay Kumar Shukla and
Ors. vs. Arvind Rai and Ors., (2022) 12 SCC 579. Relevant paragraph
of the said judgment read as under:
"42. A Constitution Bench in Ajit Singh (2) v. State of Punjab [Ajit
Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S)
1239] , laying emphasis on Article 14 and Article 16(1) of the
Constitution of India held that if a person who satisfies the eligibility
and the criteria for promotion but still is not considered for
promotion, then there will be clear violation of his/her's fundamental
right. Jagannadha Rao, J. speaking for himself and Anand, C.J.,
Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as
follows in paras 22 and 27 : (SCC pp. 227-28)
"Articles 14 and 16(1) : is right to be considered for
promotion a fundamental right
22. Article 14 and Article 16(1) are closely connected. They
deal with individual rights of the person. Article 14 demands that
the 'State shall not deny to any person equality before the law or
the equal protection of the laws'. Article 16(1) issues a positive
command that:
'there shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the
State'.
It has been held repeatedly by this Court that clause (1) of
Article 16 is a facet of Article 14 and that it takes its roots from
Article 14. The said clause particularises the generality in Article
14 and identifies, in a constitutional sense "equality of
opportunity" in matters of employment and appointment to any
office under the State. The word "employment" being wider, there
is no dispute that it takes within its fold, the aspect of promotions to
posts above the stage of initial level of recruitment. Article 16(1)
provides to every employee otherwise eligible for promotion or
who comes within the zone of consideration, a fundamental right to
be "considered" for promotion. Equal opportunity here means the
right to be "considered" for promotion. If a person satisfies the
eligibility and zone criteria but is not considered for promotion,
then there will be a clear infraction of his fundamental right to be
"considered" for promotion, which is his personal right.
"Promotion" based on equal opportunity and seniority
attached to such promotion are facets of fundamental right under
Article 16(1)
27. In our opinion, the above view expressed in Ashok Kumar
Gupta [Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 :
1997 SCC (L&S) 1299] and followed in Jagdish Lal [Jagdish
Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S)
1550] and other cases, if it is intended to lay down that the right
guaranteed to employees for being "considered" for promotion
according to relevant rules of recruitment by promotion (i.e.
whether on the basis of seniority or merit) is only a statutory
right and not a fundamental right, we cannot accept the
proposition. We have already stated earlier that the right to equal
opportunity in the matter of promotion in the sense of a right to be
"considered" for promotion is indeed a fundamental right
guaranteed under Article 16(1) and this has never been doubted in
any other case before Ashok Kumar Gupta [Ashok Kumar
Gupta v. State of U.P., (1997) 5 SCC 201 : 1997 SCC (L&S) 1299]
right from 1950."
43. This Court in H.M. Singh v. Union of India [H.M. Singh v. Union
of India, (2014) 3 SCC 670 : (2014) 1 SCC (L&S) 649] , again
reiterated the legal position i.e. right to be considered for promotion
as a fundamental right enshrined under Article 14 and Article 16 of
the Constitution of India. The relevant extract from para 28 is
reproduced below : (SCC p. 686)
"28. The question that arises for consideration is, whether the
non-consideration of the claim of the appellant would violate the
fundamental rights vested in him under Articles 14 and 16 of the
Constitution of India. The answer to the aforesaid query would be
in the affirmative, subject to the condition that the respondents
were desirous of filling the vacancy of Lieutenant-General, when it
became available on 1-1-2007. The factual position depicted in the
counter-affidavit reveals that the respondents indeed were desirous
of filling up the said vacancy. In the above view of the matter, if the
appellant was the seniormost serving Major-General eligible for
consideration (which he undoubtedly was), he most definitely had
the fundamental right of being considered against the above
vacancy, and also the fundamental right of being promoted if he
was adjudged suitable. Failing which, he would be deprived of his
fundamental right of equality before the law, and equal protection
of the laws, extended by Article 14 of the Constitution of India. We
are of the view that it was in order to extend the benefit of the
fundamental right enshrined under Article 14 of the Constitution of
India, that he was allowed extension in service on two occasions,
firstly by the Presidential Order dated 29-2-2008, and thereafter,
by a further Presidential Order dated 30-5-2008. The above orders
clearly depict that the aforesaid extension in service was granted to
the appellant for a period of three months (and for a further period
of one month), or till the approval of the ACC, whichever is earlier.
By the aforesaid orders, the respondents desired to treat the
appellant justly, so as to enable him to acquire the honour of
promotion to the rank of Lieutenant-General (in case the
recommendation made in his favour by the Selection Board was
approved by the Appointments Committee of the Cabinet, stands
affirmed). The action of the authorities in depriving the appellant
due consideration for promotion to the rank of the Lieutenant-
General would have resulted in violation of his fundamental right
under Article 14 of the Constitution of India. Such an action at the
hands of the respondents would unquestionably have been
arbitrary."
32. The Hon'ble Apex Court in the aforesaid judgment has conclusively
laid down the proposition that right of consideration for promotion is a
fundamental right and as such, we are of the view that the consideration
of promotion being a fundamental right, the authority concerned is duty
bound to consider the same by taking decision either-way.
33. Further, the question of the claim to be based upon the junior having
been granted promotion or not granted promotion will not be applicable
if the tenure has been fixed for consideration by way of eligibility
criteria, herein, 18 years of service has been carved out making the
member of the service eligible for consideration of promotion to the
post of Chief Conservator of Forest.
34. Admittedly herein and having not been denied by the State that the writ
petitioner has completed 18 years of service and as such, he became
eligible for consideration as per the rules of recruitment/promotion.
35. The settled position of law is that when the tenure has been given and if
the vacancies are available then it is the bounded duty of the State to
convene the meeting of Departmental Promotion Committee so as to
consider the case of one or the others for grant of promotion.
36. The decision although has been taken by the Office memorandum dated
10.04.1989 by the Ministry of Personnel, Public Grievances and
Pensions, Department of Personnel and Training, Government of India
which contains the consent and consolidated instructions on
constitution and functioning of Departmental Promotion Committee
and the procedure to be followed in processing and implementing the
recommendations of D.P.Cs. also applicable to the members of the
cadre herein which has been admitted by the State.
37. It is evident from the aforesaid policy decision that the DPC has been
decided to be convened at regular annual interval to draw panel which
could be utilized on making promotions against the vacancies occurring
during the course of a year. It is further evident therein that the meeting
of DPC is to be convened six months prior to the availability of the
vacancies. For ready reference, clauses 3.1 and 3.2 of the said
guidelines are being referred as under:
"3.1 The DPCs should be convened at regular annual intervals to
draw panels which could be utilized on making promotions against the
vacancies occurring during the course of a year. For this purpose it is
essential for the concerned appointing authorities to initiate action to
fill up the existing as well as anticipated vacancies well in advance of
the expiry of the previous panel by collecting relevant documents like
CRs, integrity certification, seniority list etc. for placing before the
DPC. DPCs could be convened every year if necessary on a fixed date
1st April or May. The Ministries/Departments should lay down a time
schedule for holding DPCs under their control and after laying down
such a schedule the same should be monitored by making one of their
officers responsible for keeping a watch over the various cadre
authorities to ensure that they are held regularly. Holding of DPC
meetings need not be delayed or postponed on the ground that
recruitment rules for a post are being reviewed/amended. A vacancy
shall be filled in accordance with the recruitment rules in force on the
date of vacancy, unless rules made subsequently have been expressly
given retrospective effect. Since Amendments to recruitment rules
normally have only prospective application, the existing vacancies
should be filled as per the recruitment rules in force.
3.2 The requirement of convening annual meetings of the DPC should
be dispensed with only after a certificate has been issued by the
appointing authority that there are no vacancies to be filled by
promotion or no officers are due for confirmation during the year in
question."
38. It is thus evident that it is the bounded duty of the State in pursuance of
the aforesaid circular to convene the meeting of Departmental
Promotion Committee at regular interval. The fact about not convening
the meeting by the Departmental Promotion Committee has been
admitted by the State.
39. Further it is admitted by the learned State counsel that there is no
cogent reason of not convening the meeting of the Departmental
Promotion Committee.
40. We have passed specific direction in this regard as to why the meeting
of the Departmental Promotion Committee was not conducted but even
though the affidavit has been filed but no explanation has been
furnished.
41. The affidavit has been filed in pursuance of the order dated 16.05.2023
whereby and whereunder, the vacancy position has also been brought
on record wherefrom it is evident that on the day when the writ
petitioner became eligible, (i.e., on 01.01.2020) 07 vacancies were
available.
Thus, the vacancies were already available but meeting of the
Departmental Promotion Committee was not conducted.
42. The question herein is that if the meeting of Departmental Promotion
Committee has not been conducted even though specific guidelines is
there issued by the Department of Personnel and Training and the
vacancies are available.
Further the writ petitioner has become eligible then why the case
of the writ petitioner not been considered if he has been found to be
eligible in all parameters to hold the post of Chief Conservator of
Forest.
43. The further question herein is that when the State has failed in
discharging his statutory duty to convene the meeting of Departmental
Promotion Committee whether the member of the Service can be
denied from the benefit of promotion by taking the plea that the
meeting of the Departmental Promotion Committee since was not
convened and the day when the said meeting was convened, then by
that time, the writ petitioner has retired from service on attaining the
age of superannuation.
44. This Court is of the view so far as this ground of the State is concerned
that if the State has got a bounded duty to convene the meeting of
Departmental Promotion Committee as per the office memorandum
dated 10.04.1989 And if the meeting of the Departmental Promotion
Committee is not being convened, then the laches lies on the part of the
State and if there is laches on the part of the State, then why the
members of the service will be made to suffer.
45. The position of law is well settled that a wrong doer cannot be allowed
to take advantage of his wrong. Reference in this regard be made to the
judgment rendered by the Hon'ble Apex Court in Kusheshwar Prasad
Singh Vrs. State of Bihar and Ors., reported in (2007) 11 SCC 447,
wherein at para-14, it has been laid down by making reference of the
judgment rendered by the Hon'ble Apex Court in the case of
Mrutunjay Pani Vrs. Narmada Bala Sasmal, reported in AIR 1961 SC
1353, wherein an obligation is cast on a party and he commits a breach
of such obligation, he cannot be permitted to take advantage of such
situation. This is based on the Latin maxim commodum ex injuria sua
nemo habere debet (no party can take undue advantage of this own
wrong).
The said proposition has also been discussed in detail by the
Hon'ble Apex Court in the judgment rendered in the case of Indore
Development Authority Vrs. Shailendra and Ors., reported in (2018) 2
SCC 412 as would be evident from paras-143 and 167 by quoting the
judgment rendered in the case of Mrutunjay Pani Vrs. Narmada Bala
Sasmal (supra), it has been referred therein that no litigant can deprive
the benefit of his own wrong. The doctrine commodum ex injuria sua
nemo habere debet means convenience cannot accrue to a party from
his own wrong.
46. Herein, the State by not convening the meeting of the Departmental
Promotion Committee has been considered by this Court to be a wrong
doer and if the State will be given the benefit by accepting the ground
that the meeting of Departmental Promotion Committee since has been
convened and the same has been taken as a ground for denial of the
claim of the writ petitioner for promotion, then in that circumstances it
will give premium to the State and the members of the service will be
deprived from his legitimate claim for consideration of promotion to
the higher post.
The matter would have been different if the vacancies would not
have been available when the writ petitioner has become eligible then
there was no question of convening the meeting of Departmental
Promotion Committee.
But it is the admitted case of the State that the day when the writ
petitioner attained eligibility, i.e., on 01.01.2020 altogether 07
vacancies were there and the writ petitioner has retired from service on
30.09.2020.
Thus, the vacancies were available as on 01.01.2020 but even
during the period when the writ petitioner was in service up to
30.09.2020, the meeting of Departmental Promotion Committee has not
been convened.
The State if allowed to do these things by not convening the
meeting of Departmental Promotion Committee then it will lead to
harassment and will be said to be arbitrary action on the part of the
State since no reason has been explained as to why the meeting of
Departmental Promotion Committee has not been convened even
though the vacancies were available on that day.
47. Although the grounds have been taken after retirement of the writ
petitioner, the meeting of Departmental Promotion Committee was
convened and in the entire meeting one of the officers who was senior
to the writ petitioner was considered for promotion to the post of Chief
Conservator of Forest and hence, the plea has been taken that none of
the juniors has been granted promotions.
48. We are not impressed with such ground reason being that the question
of consideration of denial to the writ petitioner will not come in the
way when the rule is specific for consideration to hold the post of Chief
Conservator of Forest on completion of 18 years of service and the
moment the writ petitioner has completed 18 years of service, he
became entitled for consideration to hold the post of Chief Conservator
of Forest which ought to have been considered in the facts of the
present case due to the availability of vacancies which were 07 in
numbers but the same has not been considered due to non-convening of
the meeting of Departmental Promotion Committee.
49. The learned Tribunal has denied the said claim instead of adjudication
the same with specific direction for consideration of the case of the writ
petitioners merely on the ground that the writ petitioner has failed to
furnish the detail of available vacancies and the reference of the Junior
Officers has not been made who have been granted promotion.
50. The question of availability of vacancies since we have already dealt
with hereinabove which is in the domain of the State and as such it was
the bounded duty of the Tribunal to relegate the matter before the State
Authority for consideration or by calling upon the report regarding the
availability of the vacancies but instead of doing so the claim of the
writ petitioner has been denied merely on the ground that the writ
petitioner failed to provide the details of the available vacancies.
51. Further ground of no reference of any junior having been granted
promotion is concerned we have already dealt with herein above that it
is not a case of grant of promotion to the junior since it is not a case of
promotion based upon the seniority rather the case of promotion to the
post of Chief Conservator of Forest is based upon the eligibility of the
criteria as provided in the rules of recruitment which provides that the
members of the service will be held entitled to hold the post of Chief
Conservator of Forest immediately after completion of 18 years of
service, meaning thereby, if a member of the service has completed 18
years of service, he becomes entitled for consideration by placing the
case of one or the others before the Departmental Promotion
Committee since the DPC itself has not been convened which has been
taken as a ground for denial of the claim of the writ petitioner which
cannot be said to be a proper explanation by the State.
52. Learned counsel for the State has although tried to impress upon the
Court by taking aid of the judgment rendered by the in Baij Nath
Sharma vs. Hon'ble Rajasthan High Court at Jodhpur and Anr.
(supra) wherein the fact about the promotion by the High Court to
convene the meeting of Departmental Promotion Committee has been
deprecated.
53. The law is well settled that the applicability of judgment is based upon
the facts governing each and every case independently as has been held
by the Hon'ble Apex Court in Dr. Subramanian Swamy vs. State of
Tamil Nadu and Others, (2014) 5 SCC 75, paragraph 47 of which
reads hereunder as:
"47. It is a settled legal proposition that the ratio of any decision must
be understood in the background of the facts of that case and the case
is only an authority for what it actually decides, and not what
logically follows from it. "The court should not place reliance on
decisions without discussing as to how the factual situation fits in with
the fact situation of the decision on which reliance is placed.""
54. This Court in order to come to the conclusion as to whether the
judgment rendered by the Hon'ble Apex Court in the case of Baij Nath
Sharma vs. Hon'ble Rajasthan High Court at Jodhpur and Anr.
(supra) is applicable in the facts and circumstances of the case or not
for which this Court has gone across the factual aspect of the said case.
This Court has found from the factual aspect that the said case
was with respect to the claim of retired person who has claimed
promotion after his retirement on the ground of creation of vacancies
and from the date of its creation.
55. The Hon'ble Apex Court in the aforesaid factual aspect has deprecated
the direction passed by the High Court that once an employee has
retired from service, as such, he will have no claim on the basis of the
vacancies created subsequent to his retirement even though the
vacancies were for a particular purpose.
But herein, it is not the case that on the day when the writ
petitioner became eligible the vacancies were not available rather it is
the admitted case of the writ petitioner that there were 08 vacancies
available on 01.01.2020 and even then, the case of the writ petitioner
has not been considered.
Thus, it is a case where the vacancies were there but it is due to
the laches on the part of the State by not convening the meeting of the
Departmental Promotion Committee the case of the writ petitioner has
not been considered.
56. The matter would have been different if there would not have been any
vacancy while the writ petitioner was in service then certainly the
judgment rendered by the Hon'ble Apex Court in Baij Nath Sharma vs.
Hon'ble Rajasthan High Court at Jodhpur and Anr. (supra) will be
said to be applicable but that is not the fact herein.
57. This Court, in the entirety of the facts and circumstances as per the
discussion made hereinabove, while exercising the power of judicial
review against the order passed by the learned Tribunal, is of the
considered view that the part of the order dated 14.02.2022 passed in
O.A. No. 379 of 2020 and order dated 24.03.2022 passed in Review
Application No. RA/04/2022, whereby and whereunder, the claim of
the writ petitioner for consideration of grant of promotion to the post of
Chief Conservator of Forest is concerned, the same is not sustainable in
the eyes of law.
58. Accordingly, the aforesaid part of the order is quashed and set aside.
59. In the result, the instant appeal stands allowed.
60. This Court has not thought it proper to remand the matter before the
Tribunal to decide the issue on the ground that the writ petitioner has
already retired in the year 2020 and since then three years have already
lapsed, hence, this Court deems it fit and proper to dispose of the matter
with the appropriate direction to the State for consideration of case of
the writ petitioner for notional promotion.
61. Accordingly, the respondent-State is directed to consider the case of the
writ petitioner for promotion to the post of Chief Conservator of Forest
as per the rules of recruitment/promotion and in accordance with law
by taking such decision within a period of two months from the date of
receipt of copy of this order.
62. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I agree,
(Navneet Kumar, J.) (Navneet Kumar, J.)
Jharkhand High Court, Ranchi
Dated: 30/01/2024
Saurabh /A.F.R.
