Sudhir Kumar Agrawal Vs Union of India

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2025:CGHC:11109-DB

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Reserved on : 07.01.2025 Delivered on : 06.03.2025

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WPS No. 4146 of 2024

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1 - Sudhir Kumar Agrawal S/o Late Shri Sachchidanand Agrawal Aged About 59 Years Principal Chief Conservator Of Forest (Wildlife) And Cwlw Aranya Bhawan, 1st Floor, Atal Nagar, Nava Raipur (C.G.) 492001

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... Petitioner

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versus

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1 - Union Of India Through Its Secretary, Ministry Of Environment, Forest And Climate Change, Indira Paryavaran Bhawan, Jorbagh Road, New Delhi 110003

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2 - State Of Chhattisgarh Through Chief Secretary, Mahanadi Bhawan, Mantralaya, Naya Raipur (C.G.) 492002

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3 - State Of Chhattisgarh Through Its Principal Secretary, (Forest) Mahanadi Bhawan, Mantralaya, Naya Raipur (C.G.) 492002

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4 - Shri V.S. Rao Principal Chief Conservator Of Forests, Aranya Bhawan, 3rd Floor, Atal Nagar, Nava Raipur (C.G.)- 492001

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---- Respondents

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For petitioner : Mr. Manoj Paranjpe and Mr. Aman Saxena, Advocates For UOI : Mr. Rama Kant Mishra, Dy.S.G. with Ms. Anmol Sharma, C.G.C. For State : Mr. Praful N. Bharat, Advocate General with Mr. Akhilesh Kumar, Government Advocate For Res. No.4 : Mr. Abhishek Sinha, Sr. Advocate with Ms. Shristi Upadhyay, Ms. Palak Dwivedi and

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Mr. Manuraj Singh, Advocates

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DB: Hon'ble Smt. Justice Rajani Dubey and Shri Justice Narendra Kumar Vyas

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C.A.V. ORDER

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Per, Narendra Kumar Vyas, Judge

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The petitioner by way of present writ petition has assailed the order dated 26.06.2024 passed by the learned Central Administrative Tribunal, Jabalpur in O.A. No. 200/01010/2023 by which his application for setting aside order dated 04.09.2023 (Annexure P/2) passed by the State of Chhattisgarh, Department of Forest and Climate Change Department/Respondent No.3 appointing respondent No. 4 to the post of Principal Chief Conservator of Forest (Head of Forest Force) ‘Apex Scale’ w.e.f. 04.09.2023.

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The brief facts as reflected from the records are that the petitioner filed an application before the learned Central Administrative Tribunal, Jabalpur mainly contending that

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A. He was selected in the Indian Forest Service (IFS), 1988 batch whereas respondent No. 4 is an IFS officer of the 1990 Batch. The respondent No. 4 is junior to the petitioner for last 33 years and all of a sudden, in a discriminatory manner superseded the petitioner for the promotion to the post of PCCF (Principal Chief Conservator of Forest) Apex Scale vide order dated 04.09.2023. It has also been contended that promotion of respondent No. 4 is against the Guidelines dated 16.04.2009 (Annexure P/3) which provides that for effecting selection to the

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post of Principal Chief Conservative of Forest ‘Apex Scale’ a committee has to be constituted and the officers holding the post of PCCF in the State cadre in the HAG + Scale of Rs. 7550080,000/-, the criteria for selection is OUTSTANDING Merit, competence, absolute integrity and having specific suitability for the post.

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B. It has also been contended that as per Rule namely Indian Forest Service (Pay) Rules, 2016 (Annexure P/4 dated 28.09.2016) the post of Apex Scale is above super time scale and it is in level 17 in the pay matrix. Selection of Respondent No. 4 is in violation of Office Memorandum dated 20.09.2022 (Annexure P/9) which provides that from the pay scale level 16 to level 17, one year qualifying service for promotion is required. Since Respondent No. 4 has not completed one year of minimum service in the scale level 16, he cannot be considered for grant of level 17 i.e. promotion to the post of PCCF, Apex Scale.

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C. On the above factual matrix the petitioner has filed an application under Section 19 of the Administrative Tribunal Act, 1985 before the Central Administrative Tribunal, Bench at Jabalpur. Learned Tribunal vide order dated 26.06.2024 dismissed the original application by recording its finding that the Special Selection Committee (SSC) recommended the name of the respondent No.4 purely based on merit which was accepted by the State Government, thereby the respondent No.4 was promoted to the post of the Principal Chief Conservator of

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Forests (Head of the Forest Force) 'Apex Scale'. The petitioner has wrongly submitted that the respondent no.4 was much lower in merit in the selection process conducted by the UPSC at the relevant time. The selection of Respondent No.4 is based on merit and not on the basis of seniority as mandated by the provisions contained in Indian Forest Service (Pay) Rules, 2016 (Annexure R2/2) and accordingly rejected the application. Aggrieved with the same the petitioner has filed present writ petition.

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Learned counsel for the petitioner reiterating the facts mentioned in the original application would submit that recommendation of respondent No. 4 for promotion is against the MoEF Guidelines dated 16.04.2009 as on the date when the Special Selection Committee was convened, respondent No. 4 was not eligible for promotion to the post of PCCF (Head of Forest Force) Apex Scale. The petitioner belongs to 1988 Batch IFS whereas respondent No. 4 is 1990 Batch IFS, therefore, he is much junior to him. It is further submitted that the supersession of petitioner is against the office memorandum 08.02.2002 which clearly provides ‘No Supersession in Selection/Promotion’ is permissible still a junior has superseded the petitioner. It is not even the case that the petitioner was found unfit for promotion whereas a case of financial irregularity to the tune of Rs. 2.29 Crore is pending against respondent No. 4, therefore, the recommendation of the SSC is contrary to the Rules, 2009 (Annexure P/4) and deserves to be set aside and

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consequentially, the impugned order passed by the learned Tribunal as well as the order dated 04.09.2023 (Annexure P/2) deserve to be quashed and would pray for allowing the writ petition.

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On the other hand, learned Dy. Solicitor General for the Union of India would submit that the order passed by the learned Tribunal is just and proper. The contention raised by the petitioner is misconceived as the appointment to the Apex Scale is by way of selection not by promotion, therefore, claim of the petitioner that he is senior to respondent No. 4 deserves to be rejected. The respondent No. 4 has been declared meritorious in selection process, therefore, he has been selected to the post of Apex Scale. There is no question of superseding by any one, therefore, would pray for dismissal of the writ petition.

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Learned Advocate General for the State would submit that the selection of respondent No. 4 to Apex Scale has been granted on the basis of recommendation of the SSC which has been made in accordance with the Indian Forest Service (Pay) Rules, 2016 and MoEF Guidelines dated 16.04.2009 which emphasizes selection of the Apex Scale position to be merit based rather seniority basis. The Annual Performance Assessment Report (APAR) for the last 5 years has been considered while recommending respondent No. 4 in the Apex Scale. The total APAR grade for 5 years in case of petitioner was 48/50 whereas APAR grade for respondent No. 4 was 49.62/50. As such, no irregularity or procedure lapse has been committed by the

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respondent State and would pray for dismissal of the writ petition.

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Learned counsel for respondent No. 4 would submit that the SSC has recommended his name strictly in accordance with the statutory frame work and procedure mandates, therefore, the recommendation made by the SSC and order passed by the learned Tribunal does not call for any interference. He would further deny the allegation of financial irregularity committed by him and would submit that this is a misleading fact, in fact, he was made guilty in the departmental order dated 29.07.2013, later he has been exonerated in the said proceedings. He would further submit that 7 officers were in the zone of consideration for the selection including he himself and the petitioner. As stated in Agenda dated 29.08.2023 one officer was to be selected for the post of Apex Scale. The SSC considered merit on the basis of competence, absolute integrity and specific suitability and APAR data. In the process seniority is never a criteria. He would further submit that the petitioner’s reference to memorandum dated 08.02.2002 is an attempt to mislead this Court, as it relates to Departmental Promotion Committee (DPC). It is not applicable to the Special Selection Committee (SSC). The post of Apex Scale is in accordance with Rule 3D(iii) of the Indian Forest Service (Pay) Rules, 2008 and the specific guidelines issued on 16.04.2009 by MoEF in consultation with the Department of Personnel and Training (DoPT). The Apex Scale is selection based special post created in the year 2008-09

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which is different from seniority based promotion. As such, the ground raised by the learned counsel for the petitioner is baseless and devoid of merit and would pray for dismissal of the present writ petition.

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We have heard learned counsel for the parties and perused the record with utmost satisfaction.

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From the submission made by the parties, the points emerged for determination are

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a) Whether appointment on the post of PCCF, Apex Scale is Selection Post or Promotional Post and if it is Selection Post the procedure adopted by the respondent No. 3 is legal and justified and warrants interference by this Court or not?

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b) Whether the finding of the Tribunal dismissing the original application is legal and justified?

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Since both the issues are interconnected, therefore, they are being decided simultaneously. To appreciate the points this Court has to go through the provisions of Guidelines dated 16.04.2009 Rules 2016 and Office Memorandum dated 08.02.2002. From the guidelines dated 16.04.2009 it is quite vivid that the appointment on the post of PCCF Apex Scale is selection post as the selection committee has been constituted for selection and parameters of selection also provides that the candidate should have outstanding merit, competence, absolute integrity and suitability for the post and Rule 3 of Rule 2016 which provides levels in the pay matrix and appointment in these

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levels. Note 2 of Rule 3(iv) provides that the post of PCCF in the Apex Scale Level-17 shall be filled by selection amongst the officers holding the post of PCCF in the State Cadre in Level 16 of the pay matrix which does not specify the length of service required for selection to the Apex Scale. Similarly, Annexure-1 of of the Office Memorandum dated 20.09.2022 (Annexure P/9) which provides Revised pay scale as per revision of the Seventh Central Pay Commission and minimum qualifying service required for promotion, provides that for grant of Level 17 pay scale the minimum qualifying service for promotion from pay scale of Level 16 is one year. This Annexure and the Office Memorandum are not applicable to the facts of the case as the Government Memorandum dated 16.04.2009 (Annexure P/3) the post of PCCF Apex Scale is selection post not promoted post. As such, it is held that appointment on the post of Apex Scale is selection post not promotional post. Similarly, the Government Instruction dated 08.02.2002 Annexure P/16 is not applicable to the facts of the case as the circular deals with the promotion not with the selection and in the service jurisprudence both the modes of appointment are of different significance as the promotion refers to the act of elevating an employee to a higher position typically based on performance and merit, while a selection is the decision made by the committee to chose a specific candidate from a pool of applicants for particular job typically assessing their qualification and suitability for the role. The object of both the criteria is altogether different as goal of

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promotion is to reward and develop high performing employees, whereas, the goal of selection is to find the best fit for a vacant position among eligible candidates. Hon’ble Supreme Court in case of State of Madhya Pradesh vs. R.D. Sharma and Another {(2022) 13 SCC 320} has considered the issue of grant of Apex Scale and its eligibility criteria and held as under :

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Since the respondent No. 1 had retired as the PCCF in the year 2001 that is much prior to the coming into force of the Amended Rules, 2008, his claim to get the benefit of the apex scale as per the said rules was thoroughly misconceived. The apex scale of Rs. 80,000/- was fixed for the upgraded post designated as the Head of Forest Force w.e.f. 27th September, 2008 and was to be filled up by way of selection and not as a matter of course. It is needless to say that filling up a post by selection would always require a process of screening the eligible employees, and cannot be automatic on the basis of seniority.

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10.Thus, the submission made by the learned counsel for the petitioner that Respondent No. 4 has not completed one year of service and junior to him, still he has been granted Apex Scale deserves to be rejected and accordingly, it is rejected.

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Learned Tribunal vide impugned order has recorded its finding that upon considering the entire rules and has recorded its finding that the selection of respondent No. 4 is based on merit and not on the basis of seniority as mandated by the Indian Forest Service (Pay) Rules, 2016. The Tribunal has also recorded its finding that on the basis of last 5 years APAR, grading of respondent No. 4 was 49.62/50 whereas APAR grading of the petitioner is 48/50 which lower than the

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Page 10 of 11 respondent No. 4. These findings of the Tribunal are neither perverse nor contrary to the evidence nor law on the subject, as such, the impugned order passed by the Tribunal does not warrant interference by this Court. Even otherwise the power of interference by this Court while questioning the order of the CAT under Article 227 is very limited unless the petitioner is able to establish patent illegality in decision making process adopted by the Tribunal, which is not available in the present facts of the case. The issue with regard to power of interference by this Court in the order passed by the Tribunal has come up for consideration before the Hon’ble Supreme Court in case of R.D. Sharma (supra) wherein the Hon’ble Supreme Court has held as under:-

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Pertinently the Administrative Tribunal after considering the relevant factual and legal aspects had rightly rejected the claim of the respondent no. 1 for granting the apex scale on the basis of “equal pay for equal work” in the O.A. filed by him. The said well- considered, just and proper order of the Tribunal was wrongly set aside by the High Court on extraneous grounds applying the principle of “equal pay for equal work”, while exercising the power of superintendence under Article 227 of the Constitution of India. It is well-settled legal position that the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. In the instant case, the Tribunal had not committed any jurisdictional error, nor any failure of justice had occasioned, and hence the interference of the High Court in order passed by the Tribunal was absolutely unwarranted.

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