Jharkhand High Court
State Of Jharkhand Through Chief ... vs Pradeep Kumar on 5 February, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6206 of 2018
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1. State of Jharkhand through Chief Secretary, Govt. of
Jharkhand, Project Building, P.O. Dhurwa, P.S.
Jagarnathpur, District- Ranchi
2. Principal Secretary, Department of Forest, Environment
and Climate Change, Nepal House, P.O. & P.S. Doranda,
District Ranchi ... ... Petitioners
Versus
1. Pradeep Kumar, S/o Late Ram Nath Singh, 16/1 Basant
Vihar, Raja Bagan, P.O. University Post Office, P.S.
Gonda, District Ranchi (Principal Chief Conservator of
Forest, Wildlife and Chief Wildlife Warden Jharkhand,
Ranchi since retired w.e.f. 30.09.2016).
2. Union of India through the Secretary, Ministry of Forest,
Environment and Climate Change, Indra Paryawaran
Bhawan, Jorebagh, Aligang Road, P.O., P.S. & District
New Delhi -03. ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Petitioners : Mr. Ashok Kumar, AAG-IV
For the Resp. No. 1 : Mr. Bhanu Kumar, Advocate
Ms. Bharti, Advocate
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28/ 5 /02/2025 Heard Mr. Ashok Kumar, learned AAG-IV for the
petitioners and Mr. Bhanu Kumar, assisted by Ms. Bharti, learned
counsel appearing for the respondent no. 1.
2. In this writ application, the petitioner has prayed
for quashing of the order dated 10.08.2018 passed in
OA/051/00130/17 by the learned Central Administrative
Tribunal, Patna Bench, Circuit sitting at Ranchi, whereby and
whereunder the challenge mounted by the respondent no. 1 herein
to Memo No. 2928 dated 17.07.2017 issued by the Principal
Secretary, Department of Forest, Environment and Climate
Change, Jharkhand that he has not been found fit for appointment
to the post of Principal Chief Conservator of Forest (HoFF) has
been allowed and the said order has been quashed and set aside
with a direction to the authorities to fix the pension of the
respondent no. 1 in the pay scale of Principal Chief Conservator of
Forest (HoFF) i.e. Rs.80,000/- pre-revised with all consequential
retiral benefits but without any interest.
3. The respondent no. 1 was appointed as a member
of the Indian Forest Service (IFS) of 1982 batch on the basis of
examination conducted by the Union Public Service Commission in
July, 1981 and on the recommendation made thereafter. After
joining the IFS Cadre, the respondent no. 1 was posted at various
places in varied capacities and according to the respondent no. 1
he has had a remarkable career glittered with several notable
achievements. The respondent no. 1 was awarded a minor
punishment of Censure vide notification as contained in Memo No.
1677 dated 06.05.2011 issued by the Deputy Secretary,
Department of Forest and Environment, Government of Jharkhand
and it was mentioned in the said notification that the effect of the
minor punishment would be from the year 1994. The subject
matter of the departmental proceeding which led to the
punishment of Censure related to the year 1992-1993 and the said
proceeding was initiated in the year 2003 and culminated in 2011.
After the punishment of Censure had lost its force the respondent
no. 1 was given successive promotions to the post of Conservator
of Forest, Chief Conservator of Forest, Additional Principal Chief
Conservator of Forest and Principal Chief Conservator of Forest.
The respondent no. 1 whose name figured at Serial No. 24 of the
Civil List 2008 of Indian Forest Service was senior to Sri A.K.
Prabhakar and Sri R.R. Hembrom but at the time of selection to
the post of Principal Chief Conservator of Forest (HoFF) Sri R.R.
Hembrom who was not even in the zone of consideration
leapfrogged the respondent no. 1 and was selected to the said post
vide notification dated 01.09.2016. The selection of Sri R.R.
Hembrom as Principal Chief Conservator of Forest (HoFF) was
challenged by the respondent no. 1 before the learned Central
Administrative Tribunal in OA/051/00132/2016 and vide order
dated 24.05.2017 the notification No. 4106 dated 01.09.2016, by
which, Sri R.R. Hembrom was selected as Principal Chief
Conservator of Forest (HoFF) was quashed and set aside and
liberty was given to the State of Jharkhand to convene a Selection
Committee meeting for selection to the post of Principal Chief
Conservator of Forest (HoFF) and since the respondent no. 1 had
superannuated in the meantime, the authorities were directed to
grant him notional promotion and pension fixation in the Apex Pay
Scale, if found suitable as on 29.08.2016. The respondent no. 1
had submitted his representation before the authority concerned in
compliance of the order dated 24.05.2017 passed in
OA/051/00132/2016 for considering his case for selection as
Principal Chief Conservator of Forest (HoFF) but vide order as
contained in Memo No. 2928 dated 17.07.2017 issued by the
Principal Secretary, Department of Forest, Environment and
Climate Change, Government of Jharkhand the case of the
respondent no. 1 was rejected as he was not found suitable for
selection for the post of Principal Chief Conservator of Forest
(HoFF). This led to another round of litigation initiated by the
respondent no. 1 before the Central Administrative Tribunal in
OA/051/00130/17 and the impugned order as contained in Memo
No. 2928 dated 17.07.2017 was quashed and set aside vide order
dated 10.08.2018 with a direction to the concerned authorities to
fix the pension of the respondent no. 1 in the pay scale of Principal
Chief Conservator of Forest (HoFF) with all consequential retiral
benefits. This order has been assailed before us by the State of
Jharkhand.
4. It has been submitted by Mr. Ashok Kumar,
learned AAG-IV for the petitioners that the impugned order dated
10.08.2018 is bereft of any valid reasoning and has primarily
focused on the Performance Appraisal Reports without lending any
thought on the departmental proceedings initiated against the
respondent no. 1. It has been submitted that even in the Annual
Performance Reports, the respondent no. 1 pales into oblivion
when compared to the performance appraisal of Sri A.K. Prabhakar
more so when the APAR's for two years were not submitted by the
respondent no. 1. The career of Sri A.K. Prabhakar has been
spotless while the respondent no. 1 apart from receiving a
punishment of Censure was also proceeded departmentally in
another case of financial irregularities and since "Absolute
Integrity" was one of the important parameters to be considered by
the Selection Committee, their decision cannot be faulted with in
denying the respondent no. 1 the selection post of Principal Chief
Conservator of Forest (HoFF). Mr. Ashok Kumar, learned AAG-IV
has also endeavoured to impress upon us that quashment of a
departmental proceeding on the ground of delay would not wipe
out the allegations levelled against the respondent no. 1 on
account of its technical nature and an adverse inference can easily
been drawn regarding the integrity of the respondent no. 1.
5. Mr. Bhanu Kumar, learned counsel appearing for
the respondent no. 1 has submitted that the biasness of the
concerned authorities towards the respondent no. 1 is writ large on
the face of the record as repeated road blocks have been put in
order to deny the respondent no. 1 his justifiable claim to be
selected to the post of Principal Chief Conservator of Forest (HoFF).
Instances have been spelt out citing the side lining of the
respondent no. 1 whenever his name had come up for
consideration for selection to the post of Principal Chief
Conservator of Forest (HoFF) as in spite of being the only eligible
candidate the Selection Committee picked out Sri R.R. Hembrom
who was not even in the zone of consideration to be made Principal
Chief Conservator of Forest (HoFF) and the said illegality was set
right by the learned Central Administrative Tribunal in its order
dated 24.05.2017. The departmental proceedings as repeatedly
harped upon by the learned State Counsel cannot put an embargo
on the rightful claim of the respondent no. 1 as the punishment of
"Censure" imposed upon the respondent no. 1 had lost its
currency in the year 1995 and the other departmental proceeding
did not see the light of the day on account of it being quashed by
the learned Central Administrative Tribunal on the ground of
delay. The challenge made by the State to the said orders remained
unsuccessful with a surfeit of strictures passed by this Court
against the concerned authorities. Mr. Bhanu Kumar, learned
counsel for the respondent no. 1 has further submitted that the
inadequacy as regards the absence of APR's for two years cannot
be foisted upon the respondent no. 1 as it was the duty of the
Reporting Authority to have done so and the comparative chart of
the Annual Appraisal of the Performance of the respondent no. 1
and Sri A.K. Prabhakar will reveal about the favouritism incurred
upon Sri A.K. Prabhakar. The departmental proceedings and the
punishment of Censure did not come in the way of promotion of
the respondent no. 1 to the post of Principal Chief Conservator of
Forest (HoFF) but their subsequent resurgence have categorically
established the bias of the Selection Committee towards the
respondent no. 1. The impugned order dated 10.08.2018 according
to Mr. Bhanu Kumar in the facts and circumstances of the case do
not necessitate any interference.
6. The narration of the facts reveals that this case has
a chequered history. As we have noted above the respondent no. 1
who is a 1982 batch Indian Forest Service, Officer had climbed up
the ladder of promotion and had become the Principal Chief
Conservator of Forest. A selection process was undertaken to select
a Principal Chief Conservator of Forest to the post of Principal
Chief Conservator of Forest (HoFF) as per the Civil List 2008 of
Indian Forest Service as brought on record through the counter
affidavit filed by the respondent no. 1; the name of the respondent
no. 1 figured at Serial No. 24 while that of Sri A.K. Prabhakar and
Sri R.R. Hembrom figured at Serial No. 26 and 29 respectively.
However, in spite of being the senior most officer in the cadre the
respondent no. 1 was ignored and Sri A.K. Prabhakar was notified
as the Principal Chief Conservator of Forest (HoFF) vide Memo No.
2210 dated 05.05.2016 pursuant to the decision of the Selection
Committee. Since the post fell vacant consequent to the
superannuation of Sri A.K. Prabhakar on 31.08.2016, the Selection
Committee met before his superannuation and Sri R.R. Hembrom
was selected to the said post though he did not fulfil the requisite
criteria both the orders of selection came to be challenged by the
respondent no. 1 before the Central Administrative Tribunal in
O.A./051/00132/2016 and on 24.05.2017 the following order was
passed:
"35. In view of the aforesaid facts, we are
constrained and compelled to conclude that Shri R.R.
Hembrom was not holding the post of PCCF and thus
not eligible to be considered for HoFF when the SCM
took place at about 3.30 PM on 29.08.2016.
Consequently, in our considered opinion, the applicant
was the sole eligible candidate for selection as HoFF
at that time.
36. In conclusion, the selection committee
proceeding dated 29.08.2016 for HoFF and
consequent notification No 4106 dated 01.09.2016
selecting and notifying Shri R.R. Hembrom to the post
of HoFF in the pay scale of Rs. 80,000 (Fixed) are
quashed and set aside as being illegal as he was not
eligible for the post. The respondent State of
Jharkhand is at liberty to convene a Selection
Committee meeting for selection to this post as per
law. Since the applicant has retired in the meanwhile,
the respondent authorities are directed to consider
granting him notional benefit and pension fixation in
the Apex Pay scale, if found suitable as on
29.08.2016. No order as to costs."
7. In pursuance to the order dated 24.05.2017 the
Selection Committee met and vide Memo No. 2928 dated
17.07.2017 directed that the respondent no. 1 was not suitable for
the post of Principal Chief Conservator of Forest (HoFF) on the
ground that there is no "Outstanding" remark in the ACR's of the
respondent no. 1 from 2009-2010 to 2014-2015 and a punishment
of "Censure" was imposed upon him on 06.05.2011. It has been
noted that the post of Principal Chief Conservator of Forest (HoFF)
necessitates merit and the competence of the highest standard
which was lacking in the case of the respondent no. 1. This led to
another round of litigation on account of the challenge made by the
respondent no. 1 to the decision of the Selection Committee
rejecting his claim in OA/051/00130/17 and the learned Central
Administrative Tribunal vide order dated 10.08.2018 had accepted
the contention of the respondent no. 1 and had passed the
following:
"10. Admittedly, the applicant was senior to
Shri A.K. Prabhakar in the inter-se seniority of 1982
batch of IFS. The Selection Committee in its meeting
held on 30.04.2016, had considered Shri A.K.
Prabhakar and the applicant for the post of PCCF
(HOFF). From Annexure A/3 order of the State
Government it is noticed that the ACR gradings of
these two officers as indicated in its para 3(i) were not
properly compared. For two years, namely, 2009-10
and 2010-11. Shri A.K. Prabhakar was given 'Very
Good' rating whereas the applicant was given a score
of 7 (equivalent to Very Good) and 9 (equivalent to
'Outstanding') respectively. Their ACRs for the
remaining 03 years were having identical gradings.
We would not like to make any further observation on
the selection done then.
11. The respondents in compliance of the
Tribunal's order dated 24.05.2017 in OA 132 of 2016,
whereby the selection of Shri R.R. Hembrom to the
post of PCCF (HOFF) was quashed and set aside and
a direction was issued to the respondents to hold a
meeting of the Selection Committee to consider
granting the applicant notional promotion and pension
fixation in the Apex pay scale, if found suitable as on
29.08.2016, a meeting of the Selection Committee was
held on 05.07.2017. The candidature of the applicant
was considered for the post of PCCF (HOFF) by the
Selection Committee. Accordingly, Annexure R/2 order
has been issued by the State Government and thus
the order of the Tribunal dated 24.05.2017 has been
complied with. We noticed from it that the applicant
has not been recommended by the Selection
Committee primarily for two reasons, namely, (i) he
had suffered punishment of censure once and (ii) his
ACR for the year 2009-10 with a score of 7 did not fall
in the category of 'outstanding'. From the perusal of
the records, we find that the punishment of censure
was inflicted on the applicant vide order dated
06.05.2011 (Annexure A/5). This order makes it clear
that the punishment would be effective from the year
1994. The punishment of censure has a currency of
just one year. Hence after 1995, the applicant was
free from the cloud of the punishment of censure.
Regarding his below benchmark ACR for the year
2009-10, it would be relevant to mention that his ACR
score of the year 2009-10 is 07 which, in accordance
with DoPT OM dated 23.07.2009, is to be construed
as 'Very Good' As noticed hereinabove, Shri A.K.
Prabhakar was recommended by Selection Committee
for the post of PCCF (HOFF) in its meeting held on
30.04.2016 despite he having two 'Very Good' ACRs.
The applicant, on the other hand, had just only one
'Very Good' ACR in 2009-10 out of 05 relevant years.
The Selection Committee, in its meeting held on
05.07.2017, had found the two 'Very Good' ACRs of
Shri A.K. Prabhakar above the benchmark then.
Hence, it is beyond comprehension as to how just one
'Very Good' ACR of the applicant has later been
regarded as below benchmark by the Selection
Committee. We, therefore, conclude that the Selection
Committee has not been fair in assessing the ACRs of
the applicant. It would also appear that the Selection
Committee has been shifting the 'Goal Post' in
determining the benchmark for ACR evaluation to the
detriment of the applicant.
12. Be that as it may, the applicant has
already superannuated from service on 30.09.2016.
Even if it is held that he has been unfairly ignored for
the post of PCCF (HOFF), he cannot be brought back to
the said post now. We, therefore, feel that ends of
justice would be met only by allowing the applicant at
least the pensionary benefits commensurate with the
pay scale of PCCF (HOFF).
13. In the conspectus of the discussions in the
foregoing paragraphs, the impugned order dated
17.07.2017 (Annexure A/2) is quashed and set aside.
The respondents are directed to fix the pension of the
applicant in the pay scale of PCCF (HOFF) i.e. Rs.
80,000 (Fixed) Pre-revised. We also direct that the
applicant shall be given all consequential retiral
benefits but without any interest."
8. The departmental proceeding initiated against the
respondent no. 1 seems to be one of the focal points of arguments
of the learned AAG-IV touching upon the questionable integrity of
the respondent no. 1. The departmental proceeding initiated
against the respondent no. 1 for a case of misconduct of the year
1996 was challenged by the respondent no. 1 in O.A. No. 97 of
2003 before the Central Administrative Tribunal and vide order
dated 16.02.2006 the departmental proceeding was directed to be
concluded expeditiously. In spite of such direction the proceedings
remained pending and on approaching the Central Administrative
Tribunal the same was quashed and set aside on the ground of
delay vide order dated 19.11.2013. The State had challenged the
said order before this Court in W.P.(S) No. 2464 of 2014 and vide
order dated 20.02.2015 the writ application was dismissed with
severe strictures passed against the authorities responsible for
such lethargic approach with a further direction to proceed
departmentally against the officers who delayed the conclusion of
the departmental proceeding. Though the learned State counsel
has tried to expand the domain of the questionable integrity of the
respondent no. 1 by referring to the departmental proceeding noted
above but in the order of the Selection Committee dated
17.07.2017 no mention has been made of the same and instead
the only reference so far as integrity is concerned is the "Censure"
imposed upon the respondent no. 1. The Selection Committee,
however, has not assessed the viability of such imposition of
punishment when admittedly it had lost its force in the year 1995.
What appears intriguing is that despite the respondent no. 1
having been imposed a punishment of "Censure" he was found fit
to be promoted to the post of Principal Chief Conservator of Forest.
The questionable integrity as stressed by the learned State Counsel
at the time of consideration of selection to the post of Principal
Chief Conservator of Forest (HoFF), did not, surprisingly, rear its
head at the time of promotion to the post of Principal Chief
Conservator of Forest and this as well as the entire sequence of
events narrated above furthers the claim of the respondent no. 1
regarding the biased attitude extended towards him by the persons
at the helm of affairs. This would further gain prominence when we
shift our attention to the second aspect of denial of selection which
is the Performance Appraisal Reports. Consideration was made
from the period 2009-2010 to 2014-2015 of the Annual
Performance Appraisal Reports and the comparative chart of the
performance of Shri A.K. Prabhakar and the respondent no. 1 finds
place in the order dated 27.07.2016 passed by the Principal
Secretary, Department of Forests, Environment and Climate
Change, Government of Jharkhand rejecting the representation of
the respondent no. 1 which is reflected hereinunder:
Sl. Financial year for which Sri A K Sri Remarks
ACR is considered Prabhakar Pradip
Kumar
grading grading Sri Pradip Kumar has
1 2009-10 V Good 7 submitted his APR of
2 2010-11 V Good 9 2012-13 on 15th
3 2011-12 9 9 January, 2014 & that
4 2012-13 9.5 NA of 2014-15 on 24th
5 2013-14 9.5(p) 10 February, 2016. Both
6 2014-15 10 NA the APRs were
submitted after the
due date & by then the
then reporting officer
had superannuated.
There are no remarks
of reporting, reviewing
& accepting officer in
both the APRs.
9. What we could decipher from the same is that for
the year 2009-10 the APR of Sri A.K. Prabhakar was "Very Good"
and similar was the remark for the period 2010-11. However, so far
as the grading of the respondent no. 1 for the said two years are
concerned, the points have been given as '7' and '9' and the
authority concerned has shied away from giving the remarks which
should have been "Very Good" for obtaining '7' points and
"Outstanding" for obtaining '9' points as per DoPT Office
Memorandum dated 23.07.2009. So far as the period 2011-12 is
concerned, the points are level and in the year 2013-14 the
respondent no. 1 seems to have a score of 10 which betters that of
Sri A.K. Prabhakar who had received 9.5 points and that too not
for the entire year but for a part of it. The APR's of 2012-13 and
2014-15 were said to have been submitted by the respondent no. 1
after the due date and the same was blank without any remarks by
the Reporting Authority. It is common knowledge that in all
spheres of government machinery there are several instances when
the APRs/ACRs are either not filled up by the Reporting Authority
or are done belatedly. That by itself would not jeopardize the career
growth of an employee and considering these instances negatively
so far as the respondent no. 1 is concerned would be a travesty of
justice more so on account of the fact that the respondent no. 1
was granted promotion to the post of PCCF despite absence of the
concerned APR's. Here again, we must take notice of the fact that
though the issue discussed above was raised by the learned State
Counsel but the absence of any noting in the APAR's of 2012-13
and 2014-15 is not reflected in the findings of the Selection
Committee noting dated 17.07.2017.
10. Mr. Ashok Kumar, learned AAG-IV for the
petitioners has referred to the case of "Balbir Singh Bedi versus
State of Punjab" in Civil Appeal No. 1273 of 2004 and has put
impetus upon the following:
"20. In view of the above, the law as regards
this point can be summarised to the effect that, where
a promotion is to be given on the principle of "seniority-
cum-merit", such promotion will not automatically be
granted on the basis of seniority alone. Efficiency of
administration cannot be compromised with at any
cost. Thus, in order to meet said requirements, all
eligible candidates in the feeder cadre must be subject
to a process of assessment to determine whether or
not an individual in fact possesses the specified
minimum necessary merit, and in the event that he
does possess the same, his case must be considered
giving due weightage to his seniority. Furthermore, the
statutory authority must adopt a bona fide and
reasonable method to determine the minimum
necessary merit, as is required to be possessed by the
eligible candidate. It must also take into account his
period of service, educational qualifications, his
performance during his past service for a particular
period, his written test, interview, etc. The authority
must further be competent to allocate separate
maximum marks on each of the aforesaid counts.
Fixing such criteria, or providing for minimum
necessary merit, falls within the exclusive domain of
policy-making. Thus, it cannot be interfered with by
courts in the exercise of their judicial powers, unless
the same is found to be off the mark, unreasonable, or
mala fide."
11. In the case noted above the same related to the
power of the State to fix benchmark for assessing the merit and
suitability of a candidate to be promoted on the basis of seniority-
cum-merit even in the absence of any executive instructions. A
note of caution has been given to the effect that "efficiency of
administration cannot be compromised with at any cost".
12. Mr. Bhanu Kumar, learned counsel appearing for
the respondent no. 1 has referred to the case of "Badrinath versus
Government of Tamil Nadu & Others" reported in (2000) 8 SCC 395,
wherein it has been held as follows:
"47. Every officer has a right to be considered
for promotion under Article 16 to a higher post
subject to eligibility, provided he is within the zone
of consideration. But the question is as to the
manner in which his case is to be considered. This
aspect is a matter of considerable importance in
service jurisprudence as it deals with "fairness" in
the matter of consideration for promotion under
Article 16. We shall therefore refer to the current
legal position.
50. A three-Judge Bench considered this
question in J.D. Srivastava v. State of M.P.5 In that
case, Venkataramiah, J. observed that reference on
very old adverse remarks relating to the earlier part
of an officer's career are "not quite relevant" and
that it would be an act bordering on perversity to dig
out old files to find out some material to make an
order against an officer. The following observations
are significant: (SCC p. 12, para 7)
"It is true that in the early part of his career,
the entries made do not appear to be quite
satisfactory. They are of varied kinds. Some are
good, some are not good and some are of a mixed
kind. But being reports relating to a remote period,
they are not quite relevant for the purpose of
determining whether he should be retired
compulsorily or not in the year 1981, as it would be
an act bordering on perversity to dig out old files to
find out some material to make an order against an
officer."
51. The matter was examined in-depth by a
three-Judge Bench in Baikuntha Nath Das v. Chief
District Medical Officer. There the issue was
whether uncommunicated adverse remarks could be
relied upon. That case also considered the question
of the relative strength of old remarks and also
relevance of remarks made before an earlier
promotion. Jeevan Reddy, J. speaking for the Bench
laid down several important principles and we are
however concerned with principle (iv) in para 34 of
that judgment. The proposition was that firstly more
importance would have to be attached to record of
later years. Adverse remarks made before granting
the earlier promotion (in a case of selection or merit
promotion) must be considered to have lost the
"sting in them". The relevant para reads as
follows:(SCC pp. 315-16, para 34)
"34. (iv) The Government (or the Review
Committee, as the case may be) shall have to
consider the entire record of service before
taking a decision in the matter -- of course
attaching more importance to record of and
performance during the later years. The record
to be so considered would naturally include the
entries in the confidential records/character
rolls, both favourable and adverse. If a
government servant is promoted to a higher
post notwithstanding the adverse remarks,
such remarks lose their sting, more so, if the
promotion is based upon merit (selection) and
not upon seniority."
(emphasis supplied)
In that case, the three-Judge Bench
overruled two earlier judgments of this Court.
One of them is Brij Mohan Singh Chopra v.
State of Punjab. There were two separate
points emanating from the two-Judge judgment
in Brij Mohan Singh Chopra case. They were
referred to by the three-Judge Bench
Baikuntha Nath Das6 as follows: (SCC p. 310,
para 23)
"23. (1) It would not be reasonable and
just to consider adverse entries of remote past
and to ignore good entries of recent past. If
entries for a period of more than 10 years' past
are taken into account it would be an act of
digging out past to get some material to make
an order against the employee.
(2) In ..., it was held that unless an
adverse report is communicated and
representation, if any, made by the employee
is considered, it may not be acted upon to deny
the promotion. The same consideration applies
where the adverse entries are taken into
account in retiring an employee prematurely
from service."
60. In our view, the Committee has not
conformed to the standards set in Baikuntha Nath
Das case as to the manner in which old adverse
remarks have to be treated and also as to the
manner in which adverse remarks before a previous
promotion on merit, should be viewed. The question
also is whether trivial matters were exaggerated
and positive material in favour of the officer was
ignored. We shall now proceed with our reasons as
to why the consideration by the Committee which
met on 30-8-1979 is not fair and why it is liable to
be set aside on Wednesbury principles.
(i) Firstly, the assessment starts with a
reference to the period in 1957 when the
appellant was in IAS Training School, before he
actually started working. This reference is
rather unusual and it appears to us to be
wholly warranted and clearly amounts to
"digging up into very old record" not strictly
relevant at this distance of time.
(ii) Secondly, due importance was not
given in the eleven-page report of the Screening
Committee to the list of favourable
commendations which were compelled to be
incorporated in his CRs by the Government of
India's Letter No. 11018/5/78-AIS (III) dated
29-6-1978. These were in fact incorporated in
his service record as per Mr C.V.R. Panikar's
letter dated 17-3-1979 (Public) (Special A) Dept.
(DO No. 4894/78-I) (p. 108 of Central
Government's file).
These aspects which were directed to be
incorporated by the Central Government are:
"(1) His visits to West Germany in 1965
and 1970.
(2) His visit to U.K. as guest of the British
Government in June 1970.
(3) Award of Homi Bhabha Fellowship
and visit to Heidelberg University in May 1979.
(4) Appreciation letter dated 15-11-1964
by Sardar Ujjan Singh, the then Governor of
Tamil Nadu in connection with the Flag Day in
1968."
Only a passing reference is made in the
proceedings dated 30-8-1979 to these remarks.
(iii) Thirdly, several of the adverse
remarks recorded during 1973-1977 whether
they were general in nature or were particular,
were based upon the allegations contained in
the four charges which were dropped by the
Governor on 28-6-1977. Once the charges were
dropped, it was obligatory on the part of the
Government to delete those adverse remarks
which were made prior to 28-6-1977 covering
the aforesaid period. Unfortunately, these
adverse remarks were allowed to continue in
the service record and were taken into account
by the Joint Screening Committee on 30-8-
1979. These remarks were deleted on 29-5-
1980 long after the Committee's decision dated
30-8-1979. But by that time the damage was
done.
In this connection, we are aware of the
decision of this Court in Air Vice Marshal S.L.
Chhabra, VSM (Retd.) v. Union of India. In that case,
the officer was denied promotion in the years 1987
and 1988 because of adverse remarks in the
appraisal report of 1986. Later, the adverse remarks
were expunged in 1989. He was cleared for
promotion in 1989. The officer's claim for
consideration for promotion from 1988 was accepted
by the High Court. That was set aside by this Court.
But the difference between that case and the
present case is that long before the meeting of the
Screening Committee dated 30-8-1979, the four
charges were dropped by the Governor on 28-6-
1977 and the adverse remarks for the period from
1973 to 1977 automatically lost their sanctity and
should have been selected even before 30-8-1979.
The deletion was made in 1980 long after the
meeting of the Screening Committee. The above
decision is clearly distinguishable.
Here, we may also refer to the important
analysis made by the Central Government in its note
file. In the office note dated 1-5-1979, on the file of
the Central Government, which dealt with the earlier
recommendation of the Committee presided over by
Shri C.V.R. Panikar on 9-6-1977 and 28-6-1977 the
Central Government had made a very critical
analysis of the adverse remarks. It said that some of
the adverse remarks were closely linked up with the
disciplinary cases that were dropped and once the
cases were dropped, the adverse remarks which
were based on the same allegations, had no legs to
stand. It said:
"Most the adverse remarks in CRs of Shri
Badrinath during the period from 1974 to 1978 were
based on the same ground on which various charges
were framed against him. Now that those charges
have been dropped, his case needs fresh
consideration."
It was again observed in the note dated 19-5-
1979, that there was direct nexus between the
general adverse remarks and the four charges. It
said:
"Those cases have a bearing on the adverse
entries found in the confidential reports of Shri
Badrinath for the periods between 7-2-1973 to 31-3-
1974, 21-7-1975 to 31-3-1976 and 3-5-1976 to 31-
3-1977."
The Central Government went further --
referred to the attitude of the State of Tamil Nadu
towards the appellant, as follows:
"It is unfortunate that Shri Badrinath who had
represented against these adverse remarks and
whose representations were rejected by the State
Government did not come up to the Government of
India with a memorial under Rule 25 of the AIS
(Discipline and Appeal) Rules, 1955 which is the
only way open for having those remarks expunged.
Instead of doing so, Shri Badrinath made a request
for expunction of the adverse remarks contained in
these three reports in the present appeal. The
present appeal is only against the three Orders
wherein the State Government had promoted Shri
Badrinath's juniors to the super-time scale of the
service. It may still not be late for Shri Badrinath to
come up with a memorial to the President...."
The note further said:
"However, I suggest that while remanding the
case to the State Government, as proposed, we may
suggest that as the basis for the adverse entries
contained in these three reports is not any longer
valid by virtue of the decision taken by the State
Government to drop certain inquiries against him,
the Selection Committee may not take into account
these adverse remarks found in the aforesaid
confidential reports while evaluating his
performance."
The above comments of the Central
Government are a sad commentary on the attitude of
the State of Tamil Nadu towards the appellant.
A perusal of the above assessment by the
Central Government in its note on the earlier
Committee's recommendations shows that in the
opinion of the Central Government also, the adverse
remarks right from 7-2-1973 to 31-3-1977 ought not
to have been considered as they were made keeping
in mind the allegations in the pending disciplinary
proceedings and once the proceedings were
dropped, it was necessary to expunge these
remarks. (This was not done, till after the adverse
assessment by the Committee was made on 30-8-
1979.) In fact, the Central Government even went to
the extent of saying that if the officer had sent up a
petition for expunging them, they would have readily
acceded to his request.
(iv) Fourthly, the Joint Screening
Committee in its decision dated 30-8-1979
relied upon very old adverse remarks or
comments. Some were made when the
appellant was in the Training School and in the
initial years of his service. Some were made
before 1-11-1972 on which date the appellant
was promoted to selection grade. This was not
a fair assessment and is in breach of the
principles laid down in Baikuntha Nath Das
case.
90. In the light of the above precedents, we
have considered whether this is a fit case where this
Court should issue a mandamus or remit the matter
back to the State Government. After giving our
anxious consideration to the facts of the case, we
are of the view that having regard to our findings on
Points 1 to 5 and to the continuous unfair treatment
meted out to the appellant by the State of Tamil
Nadu -- even as accepted by the Central
Government in its comments -- this is a pre-
eminently fit case requiring the issue of a
mandamus. We are, therefore, constrained to
exercise all the powers of this Court for rendering
justice and to cut short further proceedings. The
consideration of the appellant's case for the said
promotion has been hanging fire and going up and
down for the last twenty-five years. Disgusted with
the delays, the appellant has also taken voluntary
retirement. In the light of our decision on Points 1 to
5, we declare the censure in the fourth case as void
and without jurisdiction and in the alternative also,
as liable to be quashed under Wednesbury
principles. The adverse remarks of bygone years
prior to 1972 have lost all their sting. The positive
factors in the appellant's favour both recorded (at
the compulsion of the Central Government) and
others to which we have referred to earlier as
meriting consideration are, in our opinion, sufficient
to entitle him for promotion to the super-time scale.
The appellant's case is, in our view, no less inferior
to the cases of the other officers who were conferred
the similar benefit of super-time scale by the State of
Tamil Nadu, details of which have been profusely
given in the writ petition. For the aforesaid reasons,
we quash the punishment of censure, the
assessment made by the Joint Screening Committee,
the Orders passed by the State and Central
Government refusing to grant him super-time scale
and in rejecting the appeal of the appellant and we
further direct as follows:
In the special and peculiar circumstances of
the case, we direct the respondents to grant the
appellant the benefit of the super-time scale from the
date on which the appellant's junior Shri P.
Kandaswamy was granted super-time scale. The
respondents are accordingly directed to pass an
Order in this behalf within eight weeks of the receipt
of this order and to give him all consequential
benefits, attendant thereto. The said benefits shall
also be reflected in his pension and other retiral
benefits. They shall be worked out and paid to him
within the time aforementioned."
13. The observations made in the aforesaid judgment
making reference to the other judgments on the point of effect of
adverse remarks in the case of selection or merit promotion fits
into the present case as once the respondent no. 1 was granted
promotion to the post of Principal Chief Conservator of Forest
whatever adversity was against the respondent no. 1 would have
been wiped clean and as noted in the case of "Baikuntha Nath Das
& Anr. versus Chief District Medical Officer, Baripada & Anr."
reported in (1992) 2 SCC 299 "have lost the sting on them".
14. The selection criteria for the post of Principal Chief
Conservator of Forest (HoFF) is as follows:
(i) Outstanding merit
(ii) Absolute integrity
(iii) Competence
(iv) Specific suitability for the post
15. What can be construed from the order of the
Selection Committee dated 17.07.2017 is that the competency and
specific suitability for the post has been overshadowed by absence
of outstanding merit and absolute integrity. "Absolute Integrity" in
the context of the selection would mean a high degree of integrity
with moral and ethical values of the highest quality and non-
compromising level of honesty accompanying the centre stage. As
we have noticed above there is not much difference between the
capability and competency of the respondent no. 1 and Sri A.K.
Prabhakar in the context to the selection for the post of Principal
Chief Conservator of Forest (HoFF) and in some of the APR's, the
respondent no. 1 outshines and outweighs Sri A.K. Prabhakar. The
only bottleneck seems to be the punishment of Censure imposed
upon the respondent no. 1 which was also with effect from the year
1994 and which with the passage of time has lost its force. The
respondent no. 1, therefore, fulfills the initial two conditions and
such findings would automatically trigger his competence and
suitability for the post of Principal Chief Conservator of Forest
(HoFF).
16. The learned Central Administrative Tribunal in the
impugned order dated 10.08.2018 has considered the relevant
issues in its proper perspective and have accordingly quashed the
decision of the Selection Committee as contained in Memo No.
2928 dated 17.07.2017 with a further direction to fix the pension
of the respondent no. 1 in the Pay scale of Principal Chief
Conservator of Forest (HoFF) along with all consequential retiral
benefits but without any interest. We do not find any reason to
cause interference in such findings and consequently we dismiss
this writ application.
17. Pending I.A.s, if any, stands closed.
(Rongon Mukhopadhyay, J.)
(Arun Kumar Rai, J.)
A. Sanga /-
