The State of Karnataka, Represented by its Chief Secretary to the Government of Karnataka Vs. V. Rangaswamy, IFS (Retd.) and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1192532
CourtKarnataka High Court
Decided OnJun-14-2017
Case NumberReview Petition Nos. 358, 490 of 2015 in Writ Petition Nos. 33614-33615/2014 (S-CAT)
JudgeRaghvendra S. Chauhan &Amp; P.S. Dinesh Kumar
AppellantThe State of Karnataka, Represented by its Chief Secretary to the Government of Karnataka
RespondentV. Rangaswamy, IFS (Retd.) and Others
Excerpt:
(prayer: these review petitions are filed under section 114 read with order xlvii rule 1 of the code of civil procedure, 1908, read with articles 226 and 227 of the constitution of india, praying to review the order dated 07.04.2015 passed in writ petition nos. 33614-33615/2014 (s-cat), on the file of the hon'ble high court of karnataka, bangalore and etc. these review petitions having been heard and reserved for orders on 09.06.2017, and coming on for pronouncement this day, raghvendra s. chauhan, j., made the following:) 1. the state of karnataka has filed the review petitions against the judgment dated 07.04.2015, passed in w.p.nos.33614-615/2015, by a learned division bench of this court. by the said judgment, this court had quashed the order dated 20.03.2014, passed by the central administrative tribunal, wherein the learned tribunal had dismissed the o.a. filed by the respondents. before the learned tribunal, the respondents had challenged their non-promotion to the post of additional principal chief conservator of forest ("apccf", for short). the learned division bench not only set aside the order dated 20.03.2014, but also directed the state to grant promotion to the respondents, to settle the arrears of salary, and to re-fix the pension payable to the respondents while holding that they were entitled to the post of apccf. 2. briefly the facts of the case are that on 28.05.1983, mr. v. rangaswamy, the respondent no.1, had entered the indian forest service. he was promoted to the post of chief conservator of forest ("ccf", for short) on 30.05.2007. he retired from the ifs on 30.11.2010. on the other hand, mr. k. s. aralikatti, the respondent no.2, was initially appointed on 18.05.1978, and was inducted in the ifs on 27.11.1985. he was promoted on the post of ccf on 29.05.2009. he retired on 30.10.2010. 3. according to the respondents, after having completed twenty-five years of service, they were eligible for promotion to the next higher post of apccf. further according to them, while they were working as ccf, the principal chief conservator of forest ("pccf", for short) sent a list of thirty ccfs to the government for considering their promotion to the post of apccf. he suggested that due to stagnation in the service, ccfs could be promoted to the post of apccf and given ex-cadre appointments. by another letter, the pccf recommended that the case of respondent no.1 should be considered as he is about to retire on 30.11.2010. however, notwithstanding his suggestions, the government did not consider the respondents' promotion inter alia on the ground that no vacancies were available, and in case the ccf were to be promoted there would be lack of manpower in the cadre of dcf. however, after retiring from the service, the respondents discovered that immediately after their retirement, their batch mates from the batch of 1982-83 were promoted to the post of apccf. therefore, the respondents filed two o.as., namely o.a.no.514/2013, and 515/2013 before the learned tribunal wherein they challenged their non-promotion to the post of apccf. however, by order dated 20.03.2014, the learned tribunal dismissed the o.as. thus, the respondents filed two writ petitions before this court. by judgment dated 07.04.2015, the learned division bench allowed the writ petitions in the aforementioned terms. hence, these review petitions before this court. 4. heard the learned counsel for the state, the respondents-in-person, and perused the impugned judgment. 5. mr. vasanth v. fernandes, the learned counsel for the state, has raised the following contentions: firstly, that the reason the respondents were denied their promotion was due to the lack of vacancies at the relevant time. although the lack of vacancies was pleaded, as it formed the basis for the rejection of the o.a.s, the learned division bench has framed a different issue altogether. thus, the learned division bench has misapplied its mind to the facts of the case. according to the learned division bench, the issue was whether the government is justified in denying the promotion ostensibly on the ground that if they (the petitioners before the learned division bench) were promoted, would there will be reduction in dcf cadre, even though the posts were available for considering their case for further promotion? the learned counsel pleads that the learned division bench has ignored the fact that in fact no posts were available for promotion. thus, an error is apparent on the face of the record. secondly, the learned division bench is unjustified in concluding that the government had kept the matter of the respondents' promotion pending on the ground that the members of dcf cadre would be further reduced. however, such was not the case. therefore, again an error is apparent on the face of record. thus, the impugned judgment should be review by this court. 6. on the other hand, both the respondents, who have appeared in person before this court, have raised the following contentions: firstly, even if there were no vacancies available, considering the fact that even on earlier occasions, more persons were promoted to the post of apccf than the available posts, then, even the respondents could be promoted in similar manner. even subsequently, persons have been promoted on ex-cadre post. although the authorised strength of apccf was merely twenty-five, but sixty-nine officers were working as apccf. thus, if others could be promoted on ex-cadre post, to deny the respondents the chance of promotion tantamounts to a hostile discrimination against them. hence, the concept of equality, enshrined under article 14 of the constitution of india, is being violated. secondly, while the respondents were denied their promotion on the spacious ground that dcf cadre would be further reduced, immediately after their retirement, their batch mates and juniors have been promoted to the post of apccf. thus, again, the respondents have been discriminated against. since these points were ignored by the learned tribunal, the learned division bench was justified in setting aside the order passed by the learned tribunal and in allowing the writ appeal. hence, there is no error apparent on the face of record. therefore, the respondents-in-person have supported the impugned judgment. 7. it is, indeed, trite to state that the review jurisdiction is an extremely limited one. however, if there is an error apparent on the face of the record, then this court would be justified in reviewing its judgments/orders. an error is said to be apparent on the face of the record which does not require a re-examination of the merits of the case. 8. a bare perusal of the judgment passed by the learned tribunal clearly reveals that the state had denied promotion to the respondents inter alia on the ground of lack of vacancy at the relevant time. this ground was also urged before the learned division bench. however, while passing the impugned judgment, the learned division bench has framed the issue, whether the state government is justified in denying the promotions to the respondents inter alia on the ground that the members of dcf cadre would be reduced ? apparently, the learned division bench has ignored the fact that at the relevant time, no vacancy existed on the post of apccf. once, no vacancy existed, the question of promotion would not even arise. thus, the learned division bench has misapplied itself to the factual matrix of the case. hence, the error is apparent on the face of the record. 9. the position being taken by the respondents-in- person is untenable for two reasons: firstly, the concept of equality cannot be applied in a negative sense. merely because other persons may have been granted promotion on an ex-cadre post, that too, in violation of law, the respondents cannot plead that equality should be implemented in a negative sense. secondly, there is no estopple against a statute. thus, neither the learned tribunal, nor the division bench could have directed the state to promote the respondents on ex-cadre posts, for, already a large number of persons had been promoted on the ex-cadre post, that too beyond the strength available in the cadre. hence, the learned division bench was not justified in directing the state to grant a retrospective promotion on an ex-cadre post to the respondents. 10. as a last resort, the respondents-in-person have pleaded that they had prayed both before the learned tribunal, and before this court that the promotions of those persons, which were against the law, should be set aside. however, such a prayer could not be granted either by the tribunal, or by this court for four reasons: firstly, the prayer is too vague, and omnibus in nature. secondly, no specific promotion orders have been challenged by the respondents. thirdly, and most importantly, those persons whose promotions are being challenged vaguely, have not been arrayed as party-respondents either before the learned tribunal, or before this court. fourthly, such a relief cannot be given by this court in its review jurisdiction. 11. thus, for the reasons stated above, the review petitions are hereby allowed. the judgment dated 07.04.2015, in w.p.no.33614-615/2014, is recalled. the order dated 20.03.2014, passed by the learned tribunal is confirmed. consequently, the writ petitions stand dismissed.
Judgment:

(Prayer: These Review Petitions are filed under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908, read with Articles 226 and 227 of the Constitution of India, praying to review the Order Dated 07.04.2015 Passed in Writ Petition Nos. 33614-33615/2014 (S-Cat), on the file of the Hon'ble High Court of Karnataka, Bangalore and etc.

These Review Petitions having been heard and reserved for Orders on 09.06.2017, and coming on for pronouncement this day, Raghvendra S. Chauhan, J., made the following:)

1. The State of Karnataka has filed the review petitions against the judgment dated 07.04.2015, passed in W.P.Nos.33614-615/2015, by a learned Division Bench of this Court. By the said judgment, this court had quashed the order dated 20.03.2014, passed by the Central Administrative Tribunal, wherein the learned Tribunal had dismissed the O.A. filed by the respondents. Before the learned Tribunal, the respondents had challenged their non-promotion to the post of Additional Principal Chief Conservator of Forest ("APCCF", for short). The learned Division Bench not only set aside the order dated 20.03.2014, but also directed the State to grant promotion to the respondents, to settle the arrears of salary, and to re-fix the pension payable to the respondents while holding that they were entitled to the post of APCCF.

2. Briefly the facts of the case are that on 28.05.1983, Mr. V. Rangaswamy, the respondent No.1, had entered the Indian Forest Service. He was promoted to the post of Chief Conservator of Forest ("CCF", for short) on 30.05.2007. He retired from the IFS on 30.11.2010. On the other hand, Mr. K. S. Aralikatti, the respondent No.2, was initially appointed on 18.05.1978, and was inducted in the IFS on 27.11.1985. He was promoted on the post of CCF on 29.05.2009. He retired on 30.10.2010.

3. According to the respondents, after having completed twenty-five years of service, they were eligible for promotion to the next higher post of APCCF. Further according to them, while they were working as CCF, the Principal Chief Conservator of Forest ("PCCF", for short) sent a list of thirty CCFs to the Government for considering their promotion to the post of APCCF. He suggested that due to stagnation in the service, CCFs could be promoted to the post of APCCF and given ex-cadre appointments. By another letter, the PCCF recommended that the case of respondent No.1 should be considered as he is about to retire on 30.11.2010. However, notwithstanding his suggestions, the Government did not consider the respondents' promotion inter alia on the ground that no vacancies were available, and in case the CCF were to be promoted there would be lack of manpower in the cadre of DCF. However, after retiring from the service, the respondents discovered that immediately after their retirement, their batch mates from the batch of 1982-83 were promoted to the post of APCCF. Therefore, the respondents filed two O.As., namely O.A.No.514/2013, and 515/2013 before the learned Tribunal wherein they challenged their non-promotion to the post of APCCF. However, by order dated 20.03.2014, the learned Tribunal dismissed the O.As. Thus, the respondents filed two writ petitions before this Court. By judgment dated 07.04.2015, the learned Division Bench allowed the writ petitions in the aforementioned terms. Hence, these review petitions before this Court.

4. Heard the learned counsel for the State, the respondents-in-person, and perused the impugned judgment.

5. Mr. Vasanth V. Fernandes, the learned counsel for the State, has raised the following contentions: firstly, that the reason the respondents were denied their promotion was due to the lack of vacancies at the relevant time. Although the lack of vacancies was pleaded, as it formed the basis for the rejection of the O.A.s, the learned Division Bench has framed a different issue altogether. Thus, the learned Division Bench has misapplied its mind to the facts of the case. According to the learned Division Bench, the issue was whether the Government is justified in denying the promotion ostensibly on the ground that if they (the petitioners before the learned Division Bench) were promoted, would there will be reduction in DCF cadre, even though the posts were available for considering their case for further promotion? The learned counsel pleads that the learned Division Bench has ignored the fact that in fact no posts were available for promotion. Thus, an error is apparent on the face of the record.

Secondly, the learned Division Bench is unjustified in concluding that the Government had kept the matter of the respondents' promotion pending on the ground that the members of DCF cadre would be further reduced. However, such was not the case. Therefore, again an error is apparent on the face of record. Thus, the impugned judgment should be review by this Court.

6. On the other hand, both the respondents, who have appeared in person before this Court, have raised the following contentions: firstly, even if there were no vacancies available, considering the fact that even on earlier occasions, more persons were promoted to the post of APCCF than the available posts, then, even the respondents could be promoted in similar manner. Even subsequently, persons have been promoted on ex-cadre post. Although the authorised strength of APCCF was merely twenty-five, but sixty-nine officers were working as APCCF. Thus, if others could be promoted on ex-cadre post, to deny the respondents the chance of promotion tantamounts to a hostile discrimination against them. Hence, the concept of equality, enshrined under Article 14 of the Constitution of India, is being violated.

Secondly, while the respondents were denied their promotion on the spacious ground that DCF cadre would be further reduced, immediately after their retirement, their batch mates and juniors have been promoted to the post of APCCF. Thus, again, the respondents have been discriminated against. Since these points were ignored by the learned Tribunal, the learned Division Bench was justified in setting aside the order passed by the learned Tribunal and in allowing the writ appeal. Hence, there is no error apparent on the face of record. Therefore, the respondents-in-person have supported the impugned judgment.

7. It is, indeed, trite to state that the review jurisdiction is an extremely limited one. However, if there is an error apparent on the face of the record, then this Court would be justified in reviewing its judgments/orders. An error is said to be apparent on the face of the record which does not require a re-examination of the merits of the case.

8. A bare perusal of the judgment passed by the learned Tribunal clearly reveals that the State had denied promotion to the respondents inter alia on the ground of lack of vacancy at the relevant time. This ground was also urged before the learned Division Bench. However, while passing the impugned judgment, the learned Division Bench has framed the issue, whether the State Government is justified in denying the promotions to the respondents inter alia on the ground that the members of DCF cadre would be reduced ? Apparently, the learned Division Bench has ignored the fact that at the relevant time, no vacancy existed on the post of APCCF. Once, no vacancy existed, the question of promotion would not even arise. Thus, the learned Division Bench has misapplied itself to the factual matrix of the case. Hence, the error is apparent on the face of the record.

9. The position being taken by the respondents-in- person is untenable for two reasons: firstly, the concept of equality cannot be applied in a negative sense. Merely because other persons may have been granted promotion on an ex-cadre post, that too, in violation of law, the respondents cannot plead that equality should be implemented in a negative sense. Secondly, there is no estopple against a statute. Thus, neither the learned Tribunal, nor the Division Bench could have directed the State to promote the respondents on ex-cadre posts, for, already a large number of persons had been promoted on the ex-cadre post, that too beyond the strength available in the cadre. Hence, the learned Division Bench was not justified in directing the State to grant a retrospective promotion on an ex-cadre post to the respondents.

10. As a last resort, the respondents-in-person have pleaded that they had prayed both before the learned Tribunal, and before this Court that the promotions of those persons, which were against the law, should be set aside. However, such a prayer could not be granted either by the Tribunal, or by this Court for four reasons: firstly, the prayer is too vague, and omnibus in nature. Secondly, no specific promotion orders have been challenged by the respondents. Thirdly, and most importantly, those persons whose promotions are being challenged vaguely, have not been arrayed as party-respondents either before the learned Tribunal, or before this Court. Fourthly, such a relief cannot be given by this court in its review jurisdiction.

11. Thus, for the reasons stated above, the review petitions are hereby allowed. The judgment dated 07.04.2015, in W.P.No.33614-615/2014, is recalled. The order dated 20.03.2014, passed by the learned Tribunal is confirmed. Consequently, the writ petitions stand dismissed.