1. Applicant - Shri R.S. Lamba, was a member of the State Forest Service, Haryana. He was confirmed with effect from 29.3.1982. Claims that on completion of 8 years of service i.e. in October 1988, he had become eligible for appointment by promotion to the Indian Forest Service under I.F.S. (Appointment by Promotion) Regulations, 1966. He has given details to plead that 8 actual vacancies were determined for the year 1990 by Union of India in consultation with the State Government and, thus, State Forest Service Officers were required to be considered for 8+2 i. e. 10 points for being placed on the panel of 10 candidates as per Annexure A-3. Despite the State Govt. writing to the other respondents, no meeting was held for preparing the panels for 1990 or 1991. Ultimately, meeting of the Select Committee i.e. UPSC, was held on 31.3.1993 and recommendations made but the same could not be approved due to the interim orders passed by the Hon'ble High Court in a writ petition. Thereafter, meeting of the Review Select Committee took place on 3.1.1994 and applicant being in the zone of consideration, was approved on 1.2.1994. He was appointed vide Notification dated 17.3.1994, Annexure A-8, to IFS, alongwith other selected persons.
2. Pleads that respondents delayed holding of meeting in 1990 and 1991 for no fault on the part of the applicant even though actual vacancies for 1990 had been determined. It was imperative for respondent No. 2 to hold meeting of the Select Committee annually and, in any case, to consider the members of the State Forest Service for appointment to IFS. Claims that if that had been done, in that eventuality, he was bound to be allotted at least 1986 as the year of allotment.
Respondents issued an order dated 2.2.1995, Annexure A-1, whereby applicant has been allotted 1989 as the year of allotment and has, thus, - been placed below the last direct recruit officer of the year 1989, placed in the senior timescale. In this process, he has been made junior to respondents 4 to 13 who were direct recruits, above whom he would have been placed due to his placement in the senior timescale of IFS with his appointment to this service. He had filed representation, Annexure A-12, even before his appointment pleading that whenever the promotions are made, the same should be made retrospectively, keeping in view that the meeting of the Selection Committee in the years 1990 and 1991 could not be held due to inaction and negligence of respondent No. 2. This representation has been rejected vide Annexure A-2 dated 16.6.1995. Making reference to the Regulations for his appointment and fixation of seniority, he has prayed for setting aside/ modifying the order at Annexure A-1, partly to the extent it allows him 1989 as the year of allotment, and quashing Annexure A-2, completely. He seeks a direction to respondents to allot him at last the year 1986 as the year of allotment in IFS, instead of 1989.
3. Respondent No. 1 has filed a written statement contesting the case of the applicant pleading that for reasons beyond the control of the State Government, sometimes meeting of Selection Committee is not convened. However, the list prepared by such Committee subsequently cannot be held invalid. Plead that the reasons for not holding the meeting in 1990 would be explained. State of Haryana has filed one written reply pleading that there were disputes inter-se State Forest Service Officer about seniority and also between promotees and directly recruited Haryana Forest Service, Class II Officers and the case relating to the same was pending in the Court. Plead that he was confirmed w.e.f. 3.10.1980 vide order dated 6.3.1992 which was subsequently changed to 29.3.1982. They admit that he completed 8 years of service in October 1988. The cadre strength of Haryana Cadre of IFS was revised vide notification dated 6.9.1990 declaring that no vacancy for promotion quota was available before September 1990. The other facts of the applicant being placed on the panel and being at Sr. No. 7 are also admitted. A review meeting of the Committee was held on directions of the High Court. Respondents 4 to 13 are direct recruits, granted senior time scale of IFS but since applicant was promoted in March 1994, he cannot get STS before the date it was given to direct recruits i.e. respondents 4 to 13. They plead that since order of confirmation came in 1992, he was not eligible for promotion in 1990 as per the Regulations. Private respondents 4 to 13 have filed their separate reply contesting the case of the applicant. Thereafter, the parties submitted their written arguments as well.
4. We have heard ld. Counsel for the parties at length and have examined the material on the file.
5. Even though at one time State of Haryana had, rather weakly, suggested that there was no vacancy for the year 1990 for promotion to IFS, from the written submissions submitted that the oral arguments addressed, it has emerged as a common case between the parties that, in fact, there were 8 vacancies, determined as per Rules and Regulations, in the quota of promotees for the year 1990. For whatever reasons it be, meeting of the Selection Committee/UPSC was not held for considering promotions, including that of the applicant in the years 1990 or 1991 and 1992. It has been, lastly, mentioned that the vacancies were carried forward which, in fact, is not permissible under the law. We have not been shown any order by Union of India to the effect that vacancies of 1990, as determined, were not to be filled up or that they determined some fresh vacancies for the years 1991 and 1992. It is further common case amongst the parties that no vacancies occurred or were determined for the years 1991 and 1992. Thus, this can be safely concluded that there were 8 vacancies for the year 1990 and that no meeting of the Selection Committee for considering promotions to I.F.S. was held till March 1993 and which was further reviewed in 1994.
6. Before proceeding further, we may here comment upon the plea taken by the respondent - State of Haryana that no list is to be declared invalid merely because the meeting was not held at the proper time or that it was held in this case in 1994, instead of 1990. Let it be stated that it is nobody's case that the list is invalid. The only question to be answered by the Tribunal is that if for a particular year and for the vacancies of that particular year meeting of the Selection Committee is not held or could not be held, whether the select list is to be treated of the year in which it is held or the said select panel has to be treated for the year for which vacancies were determined, or not? 7. We may here deal with another objection of respondents that on 1st January, 1990, applicant had not yet been confirmed. This is, however, not denied that not only applicant but other persons, similarly placed like him, who were members of the State Forest Service, were all confirmed in the year 1992, though such confirmation was given to them with effect from 1982. By legal fiction, it has to be taken now that having been confirmed with effect from 1982, applicant was fully eligible for consideration of his case for appointment by promotion to IFS in the year 1988. This point was, in fact, conceded during the course of arguments by the learned Counsel for respondents.
8. This is not a case of clubbing of vacancies as vacancies for the year 1990 only were determined and action was initiated for filling up the same in that year and that there were no vacancies for the years 1991 and 1992. We would, thus, be left with answering the limited question regarding the aspect of the rule being mandatory for holding meeting of the selection committee every year which should not be at an interval of more than one year and if for some reason the meeting could not be held, what would be its effect? 9. When the case of the applicant, alongwith others, was being processed, law on this aspect had not yet fully crystallized. However, the Hon'ble Supreme Court, speaking through a Bench of three Hon'ble Judges, in the case of Syed Khalid Rizvi v. Union of India and Ors.
1993 Suppl.(3) SCC 575, addressed on this aspect specifically, and explained the law. This was a case relating to appointment to IPS by promotion and we find that the rules and regulations are comparable with the Rules and Regulations for promotion to IFS. Dealing with Regulation 5, which is pari-materia with the regulations for promotion to IFS, it was held that preparation of a selection list every year is mandatory. However, failure to do so would not result in violation of the rules relating to seniority and Rules 5 and 9 of the Recruitment Rules and Regulation 9 of the Regulations. It was held that dereliction of statutory duty, by not holding meeting for such appointments satisfactorily, be accounted for by the State Government concerned and the Hon'ble Supreme Court had taken a serious note of such infraction.
After the provision relating to consideration of promotion of State Officers was declared to be mandatory in the case of Sayed Khalid Rizvi (supra), in the case of H.R. Kasturi Rangan and Ors. v. Union of India and Ors. , it was held that if meeting for such consideration for promotion is not held in a particular year and the concerned Government is able to explain the reasons for not being able to hold a meeting of the selection committee, the Committee shall prepare panels of selection for each year separately. Even though the provision was taken to be mandatory, but failure to hold meeting was explained in a manner that it would not have an adverse effect on the rights of the State Officers for consideration of their promotion as the zone of consideration would remain the same when separate select panels are considered and prepared for each year for which meeting could not be held. This aspect came to be considered by the Apex Court in yet another case titled Union of India and Ors. v. Vipinchandra Him Lal Shah prepared in July 1979 for promotion from State Service to IAS and, thereafter, no select list was prepared for such promotion for officers in the State of Gujarat till December 1986/January 1987. When the meeting was held, clubbing was done for the vacancies for the years 1980 to 1986. The matter was taken to the Tribunal which, ultimately, came to the Hon'ble Supreme Court. In that case a similar Regulation 5, as it was enforced in 1980, was considered which had been further amended up to 1986. The eligibility, like in the present case, was to be considered on 1st of January of the year or of any of the years preceding the year in which meeting of the selection committee was held. The Court observed that under Regulation 5, it was laid down that selection committee shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of the State Civil Service as are held by them to be suitable for promotion to the service. The Court recorded the following observations: ...the inference is inevitable that the requirement in Clause (1) of Regulation 5 that the Selection Committee shall meet at intervals not exceeding one year and prepare a list of members of the State Civil Service who are suitable for promotion in the Service was intended to be mandatory in nature because the eligibility of the persons to be considered both in the matter of length of service and age under Clauses (2) and (3) is with reference to the first date of January of year in which the Selection Committee meets and the number of members of the State Civil Service to be considered for selection is also linked with the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of preparation of the list. We are, therefore, of the view that the requirement prescribed in Sub-regulation (1) of the Regulation 5 regarding the Committee meeting at intervals not exceeding one year and preparing a list of such members of the State Civil Service who are suitable for promotion to the service was a mandatory requirement which had to be followed. The earlier decision of this Court also lends support to this view.Union of India v. Mohan Lal Kapoor and Ors. and at Page 802 observed that under Rule 5(4), when it is mentioned that list prepared in accordance with Regulation 5(1) shall be reviewed or revised every year, it really means that there must be an assessment of the merit and suitability of all the eligible members every year. It was further observed that required member has, thus, to be selected by comparison of merits, from the candidates each year. While dealing with the word used "ordinarily", it was held that the insertion of this word does not, in the opinion of the Apex Court, illustrate the intendment underlying the provisions. "It only means that unless there are good reasons for not doing so, the selection committee shall meet every year for making the selection". We have already referred to the opinion expressed in the case of Sayed Khalid Rizvi in which after holding the provision to be mandatory, it was held that the Committee should, therefore, meet every year and prepare the select list and which may be reviewed and revised from time to time as exigencies demand. It was repeated on page 605 with the observation that unless there is a good reason for not doing so, the selection committee is required to meet every year for the purpose of making selection from amongst State Service Officers who fulfill requirements of eligibility on the 1st day of January of the year in which the Committee meets. The para, relevant for the present case, is being reproduced below: The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing Selection List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service Officers who were eligible and fall within the zone of consideration for selection in that year.
Since in the case of Vipin Chandra Him Lal Shah selections had already been made, the Hon'ble Supreme Court tried to take a way out of the impasse so that representations already made are not quashed and, thus, appointments disturbed. It was directed that officers who were senior shall be adjusted against the vacancies for the year 1980 onwards as per the yearwise vacancies. The Court, thus, held the earlier views expressed that yearwise panels have to be prepared and if those have not been, for some reason, prepared according to the Regulations, these should be adjusted against the vacancies occurring in each year separately. In the final directions, under direction No. 5, given with reference to the litigant in that case, it was held that if his name is included in such notional lists prepared in any particular year during the years 1980 to 1986 finding that he is going to be appointed against the vacancies of that particular year, he was ordered to be appointed to service against that vacancy of that year with all consequential benefits. In our opinion, the same can be applied to the facts of the present case with similar directions.
10. At this juncture, ld. Additional Advocate General, appearing for the respondents argued that since applicant had become eligible for his promotion only in the year 1988, he cannot be given year of allotment prior to 1989 as, if his request for rant of such year of allotment is accepted, it would have two effects: (a) he would be getting appointment with effect from the year when he was not even eligible for his promotion to IFS; (b) that it shall be against the sanctioned strength of IFS officers for the years prior to 1989. In our opinion, both these contentions are fallacious. Appointment of officers is against the vacancies for a particular year, which in the present case happens to be 1990, and, thus, his appointment shall be for the panel of 1990 against the vacancies of that particular year. Rules and Regulations have been framed for benefits of seniority to be given to various categories, some of which we can refer to as benefits being given to ex-Armed Forces officials when they are appointed to various services or officers who had joined Armed Forces during the declaration of national emergency. Grant of benefit of earlier service and as a consequence thereof some benefit in terms of seniority does not change the total cadre strength for the years since which they are to be given seniority. In the IFS (Recruitment Rules), 1966 Rule 6(3) provides that appointment of persons recruited to the service under provisions of Rule 6(2) which includes appointments by promotion of substantive members of the State Forest Service, shall be made in the senior time scale of pay. Under the IFS (Regulation of Seniority) Rules, 1968, Rule 3 relates with the assignment of the year of allotment. This is a complete code for grant of year of allotment to promotees vis-a-vis direct recruits and Rules 3 and 4 lay down as to how such seniority is to be given. Even now the respondents have given the year of allotment to the applicant as 1989 under these Regulations and the Rules even though he was appointed by a notification issued in 1994 and 1995.
These rules are not under challenge before us. Thus, if it is held that applicant was entitled to be appointed on the basis of the panel for the year 1990, the natural consequence of allocation of year and thereby fixation of his seniority, would follow.
11. We are conscious of the legal aspect that sometimes there may be compelling reasons for not holding meeting of the Selection Committee every year. In such a situation, if there is delay of a few months and change in the year of appointment, the Courts sometimes do not interfere with the year of allocation which relates to the date of actual appointment in IAS/IPS or IFS. However, in the present case, we have not been explained or shown any good and compelling reasons for which the meeting could not be held for the year 1990 in that year itself or immediately thereafter in the next year. An oblique reference without any supporting evidence to the aspect that some dispute amongst the SFS Officers about seniority was pending, in our opinion is not a sufficient reason for not holding the meeting as per the mandatory provisions in that year itself or for that particular year even if it was delayed. In the case of V.K. Jhanjria, decided by a Division Bench of this Tribunal, copy of which is Annexure A-2, it has already been held that inter se dispute of seniority of the State Officers cannot be treated as a good reason for not holding the meeting as per the mandatory provisions and if for some reason it is not held, to use the same to deny the rights of officers for appointment against the vacancies of that particular year.
12. In view of the discussion above, we have no hesitation in recording that even though the meeting could not be held in the years 1990, 1991 and 1992 and the panel was prepared in the year 1993 and review panel in the year 1994, this shall have to be considered as panel of selection relating to the year 1990. Notwithstanding the notification published by respondents appointing the applicant on that panel in the subsequent year, appointments of all those persons on that panel, including the applicant, shall have to be treated as a panel for vacancies of 1990 and, thus, panel of recruitment year of 1990.
Respondents may take steps and pass necessary orders as per the law laid down by the Hon'ble Supreme Court in the above mentioned three cases i.e. Sayed Khalid Rizvi, H.R. Kasturi Rangan and Vipin Chandra Hira Lal Shah. We give a declaration in favour of the applicant and the persons placed on the panel, who are still in service, in which his name was included, to be a panel for the year 1990. Needles to mention that he is held entitled to the change of year of this allocation which shall be now worked out by the respondents on the basis of his appointment being for the panel of 1990 for which the panel declared by the respondents as per Review DPC shall now be treated as panel of 1990. Consequently, Annexure A-2 is hereby quashed completely, whereas Annexure A-l is quashed to the extent it allots 1989 as the year of allotment to the applicant, which shall be worked out add modified as per our directions above. Respondents shall take necessary steps and pass, necessary orders for complying with the above directions and findings within, a period of three months from the date of receipt of copy of this order. There is no order as to cost.