Disposed

The State of Kerala v. S.Janardanan

Kerala HC3 Mar 2021OP (CAT)/42/2020

Case brief

AI extract

What is this about?

Delayed IFS induction after State-service retirement warranted notional regularisation from the legally due promotion dates. The Court modified the Tribunal’s directions, limiting monetary relief to revised pensionary benefits with 6% interest and excluding salary arrears for periods not worked. Both petitions were disposed of.

What did the court decide?

Notional regularisation and pay refixation; differential revised pensionary benefits payable within four months, with 6% interest. No salary arrears for periods not worked.

The State of Kerala Vs S.Janardanan — Pension and Retirement Benefits | Kerala HC (2021)

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O.P(CAT) Nos.42/2020 & 8/2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THE HONOURABLE MR.JUSTICE K. BABU

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WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

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OP (CAT).No.42 OF 2020

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AGAINST THE ORDER IN OA 701/2016 DATED 20-12-2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONERS/RESPONDENTS 1 TO 3:

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1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001, KERALA.

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2 THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GENERAL ADMINISTRATION (SPECIAL C) DEPARTMENT, gSECRETARIAT,THIRUVANANTHAPURAM-01.

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3 THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, FOREST HEADQUARTERS,VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.

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BY GOVERNMENT PLEADER SRI.B.VINOD

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RESPONDENTS/APPLICANT & 4TH RESPONDENT IN O.A:

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1 S.JANARDANAN RETIRED DEPUTY CONSERVATOR OF FOREST, DIVISIONAL FOREST OFFICE, RANNI FOREST DIVISION, RANNI.P.O, PATHANAMTHITTA,PRESENTLY RESIDING AT T.C.21/259(2),'ASWATHY', JUDGE ROAD, KARAMANA.P.O, THIRUVANANTHAPURAM-695002.

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O.P(CAT) Nos.42/2020 & 8/2021

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2 THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF ENVIRONMENT OF FOREST, INDIRA PARYAVARAN BHAVAN, JORBHAGH ROAD, NEW DELHI-110003.

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R1 BY SRI.S.SUJIN R2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

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THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 03.03.2021, ALONG WITH OP (CAT).8/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(CAT) Nos.42/2020 & 8/2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THE HONOURABLE MR.JUSTICE K. BABU

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WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

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OP (CAT).No.8 OF 2021

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AGAINST THE ORDER IN OA 748/2016 DATED 02-04-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONERS/RESPONDENTS 2 TO 4:

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1 THE PRINCIPAL SECRETARY TO GOVERNMENT FOREST AND WILD LIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

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2 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-01

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3 THE ACCOUNTANT GENERAL ( AND E), OFFICE OF THE ACCOUNTANT GENERAL, STATE OF KERALA, THIRUVANANTHAPURAM-01

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BY SR.GOVERNMENT PLEADER SRI.B.VINOD,

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RESPONDENTS/APPLICANTS & 1ST RESPONDENT IN O.A:

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1 SATHISH WILLIAMS, AGED 62 YEARS, S/O.F.C WILLIAMS (LATE), RESIDING AT 'HAYS', TOWN HALL ROAD, TIRUVANGAD P.O., THALASSERY-670 103, KANNUR

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O.P(CAT) Nos.42/2020 & 8/2021

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2 K.J.SMAUEL AGED 61 YEARS S/O. P.T.JOHN, RESIDING AT T.C.12/1335/AIKYA NAGAR, KUNNUKUZHY, THIRUVANANTHAPURAM-695 035

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3 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF ENVIRONMENT AND FOREST, PARIYARAM BHAVAN, C.G.O. COMPLEX, LODHI ROAD, NEW DELHI-110 002

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R1-2 BY ADV. SRI.S.SUJIN

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SRI.P.VIJAYAKUMAR, ASGI

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THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 03.03.2021, ALONG WITH OP (CAT).42/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(CAT) Nos.42/2020 & 8/2021

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ALEXANDER THOMAS & K.BABU, JJ.

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============================

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O.P(CAT) No.42/2020

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(arising out of the impugned order dated 20.12.2018 in O.A No.701/2016 of the Central Administrative Tribunal, Ernakulam Bench) &

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O.P(CAT) No.8/2021

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(arising out of the impugned order dated 2.4.2019 in O.A.No.748/2016 of the Central Administrative Tribunal, Ernakulam Bench)

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============================

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Dated this the 3^rd day of March, 2021

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JUDGMENT

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Alexander Thomas, J.

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The issues raised in these cases are related. Hence, these cases

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are disposed of by a common judgment.

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The prayers in O.P(CAT) No.42/2020 are as follows: (See

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page No.8 of the paper book of that Original Petition).

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“……… to stay the operation and implementation of Ext.P3 order dated 20.12.2018 in O.A.No.180/00701 of 2016, on the file of the Central Administrative Tribunal, Ernakulam Bench pending disposal of the above Original Petition.”

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The prayers in O.P(CAT) No.8/2021 are as follows: (See

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page No.11 of the paper book of that Original Petition).

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“……………… to stay the operation and implementation of Ext.P3 order dated 2.4.2019 in O.A.No.180/00748 of 2016, on the file of the Central Administrative Tribunal, Ernakulam bench pending disposal of the above

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O.P(CAT) Nos.42/2020 & 8/2021

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Original petition.”

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Heard Sri.B.Vinod, the learned Senior Government Pleader appearing for the petitioners in these cases, Sri.S.Sujin, the learned counsel appearing for the 1^st respondent in O.P(CAT) No.42/2020 and 1^st and 2^nd respondents in O.P(CAT) No.8/2021 and Sri.P.Vijayakumar, the learned Assistant Solicitor General of India appearing for the respondent Union of India.

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The prayers in OA.No.701/2016, which has been read in O.P(CAT) No.42/2020 are as follows: (see page No.18 of that Original

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Petition.)

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“i) Issue appropriate order or direction directing the respondents 1 and 2 to grant to the applicant therein all benefits of Annexure -A1 judgment and extended to the petitioners herein as per Annexure A2 order, by regularising the applicant’s service between 1.4.2011 and 10.10.2012 with all monetary benefits with interest for the delayed period at the rate of 12% per annum.

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ii) Grant such other and further reliefs as are just, proper and necessary or this Hon’ble Tribunal may deem fit to grant; and

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iii) Award to the applicant the costs of these proceedings.”

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6. The prayers in O.A.No.748/2016 on the file of the Tribunal,

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which resulted in O.P(CAT) No.8 of 2021 are as follows: (see page

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Nos.22 and 23 of that Original petition)

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“i) Issue a direction to the respondent to grant the applicants all the benefits of Annexure A3 judgment by regularise the intervening period between the date of retirement of the applicants from the State Service and the induction in the Indian Forest Service with all monetary benefits with interest for the delayed period at the rate of 12%. ii) To issue any other appropriate order or direction which this Hon’ble Tribunal may deem fit on the facts and circumstances of the case. Iii) To award the cost of these proceedings.”

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O.P(CAT) Nos.42/2020 & 8/2021

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As the impugned final order the Original Application in relation to O.P(CAT) No.8/2020 has been rendered by the Tribunal on the basis of the order in O.A.No.701/2016 impugned in O.P(CAT) No.42/2020, the case in O.P(CAT) No.42/2020 is taken as a lead case.

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The Original Applicant in O.A No.701/2016 had retired from the State Forest Service on 31.3.2011. According to him, he was eligible and entitled for promotion to the Indian Forest Service for the selection years 2007 and 2009. Due to no fault of his and the other incumbents also, the authorities concerned including the State Government, Union Public Service Commission and the Union Government who are responsible for the timely conduct of the selection committee for effectuating promotion to the All India Service Cadre of IFS, have not taken timely steps to convene the selection committee meeting for the relevant years. The original applicant was constrained to approach the Central Administrative Tribunal, Ernakulam Bench on occasion more than one. Ultimately, the Original Applicant was considered and found fit for promotion to the IFS by the selection committee concerned and he was actually inducted into the IFS, Kerala Cadre only on 11.10.2012. Thus he had to remain outside service for the

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O.P(CAT) Nos.42/2020 & 8/2021

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period between 31.3.2011, (the date of retirement from the State Government Service) upto 10.10.2012 (the date prior to the induction into IFS) and thereafter he was served in the IFS Kerala cadre with the best of his amenities and he retired from IFS on 31.3.2015. Thereafter he had submitted Annexure A3 representation dated 14.3.2016 before the respondent, Chief Secretary to Government, Government of Kerala for orders that the intervening period of service from the date of retirement from the State Forest Service upto his induction into the Indian Forest Service ie. for the period from 1.4.2011 upto 10.10.2012 may be regularised notionally and he is entitled to claim all monetary benefits after his retirement from the State Forest Service on 31.3.2011.

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The operative portion of the prayer made by the original applicant in O.A. No.701/2016 as per Annexure A3 representation dated 14.3.2016 is as follows: (See page No.30 of the paper book in O.P(CAT) No.42/2020)

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“Considering the above said facts, especially the order of the Hon'ble Apex Court, my intervening period from the State Service and induction into the Indian Forest Service ie. from 1.4.2011 to 10.10.2012 may be regularised notionally and I may be entitled to claim all monetary benefits after my retirement from the State Service on 31.3.2011.”

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The Original Applicant pointed out that earlier about nine

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similarly situated incumbents of previous selection had approached the

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O.P(CAT) Nos.42/2020 & 8/2021 9

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Central Administrative Tribunal, Ernakulam Bench by filing O.A No.589/2006 and other connected matters wherein the Tribunal had rendered favourable orders directing the respondents herein for regularising the intervening period from the date of retirement from State Forest Service upto the date of induction into the Indian Forest Service as duty in Indian Forest Service for all purposes and to grant them arrears of pay and allowances and to consider their promotion to the respective grades with effect from the date of their entitlement as determined on assigning the year of allotment and to pay arrears of pay and allowances due to them on such promotion and also to issue pensionary benefits accordingly. Challenging the above said common order passed by the Central Administrative Tribunal, Ernakulam Bench in O.A No.589 / 2006 and connected cases, the State Government Authorities had preferred W.P(C) Nos.5791, 5888, 31298, 31299 of 2009 and connected writ petitions, in which the Division Bench of this Court had rendered Annexure A1 common judgment dated 18.3.2014. The contents of Annexure A1 common judgment rendered by the Division Bench of this Court in W.P(c) Nos.5791/2009 and other connected cases on 18.3.2014 is short and the same is extracted hereunder for easy reference.

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O.P(CAT) Nos.42/2020 & 8/2021

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“We are in agreement with the submission that the issues raised in these petitions can be decided in terms of the procedure adopted by the Hon'ble Supreme Court of India in Union Public Service Commission and Another v. A.K.Salim and Others [(2008)11 SCC 495]. Accordingly, it is ordered that the intervening period from the relief from the State Service and induction into the All India Service will be regularised notionally and all benefits, including monetary benefits, for that period and reckoning such period shall be granted to the private respondents herein (applicants before the Tribunal).

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We may also record that the Hon'ble Apex Court had dismissed an application for review against the aforesaid judgment in Union Public Service Commission and Another's case(supra) holding that the intervening period has to be regularised notionally and the said direction would make the person entitled to claim monetary benefits after his retirement from the State Service.

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These petitions are ordered accordingly, further directing that the benefits in terms of the judgment, including pay fixation and all other due benefits in accordance with law, shall be released and paid to the private respondents (applicants before the Tribunal) with interest at 10% due thereon in terms of the interim orders granted in these writ petitions within a period of three months from the date of receipt of a copy of this judgment. Subject to that direction in favour of the applicants/respondents, these petitions are dismissed.”

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From a reading of Annexure A1 judgment rendered by the

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Division Bench of this Court in the above cases can be seen that the said judgment had been rendered by this Court by following the dictum laid down by this Court in Union Public Service Commission and Another v. A.K.Salim and Others [(2008)11 SCC 495] . A further reading of paragraph 3 of Annexure A1 would also make it clear that the intervening period has been regularised notionally and the said direction would make the person entitled to claim monetary benefits after his retirement from the State Service. Accordingly, the Division Bench of this Court had directed in the last paragraph of Annexure A1 judgment that the petitions are ordered accordingly, further directing

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O.P(CAT) Nos.42/2020 & 8/2021 11

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that the benefits in terms of the above judgment [the judgment of the Apex Court in A.K.Salim's case (supra)] and directing that the benefits including pay fixation and all other due benefits in accordance with law, shall be released and paid to the private respondents therein (the applicants in the Original Application) along with 10% due thereon in terms of the interim orders granted in these writ petitions within a period of three months etc. Thereafter, the Government authorities of State Government had issued Annexure A2 G.O (Rt) No.2165/ 2015/GAD dated 25.3.2015 in compliance with the direction issued by this Court in Annexure A1 common judgment dated 18.3.2014 in W.P(C) Nos.5791/2009 and other connected cases. A reading of paragraph 4 of Annexure A2 Government Order dated 25.3.2015 would make it manifest that in compliance with the above said judgment of the Division Bench rendered on 18.3.2014 as ordered to regularise the intervening period between retirement from State Forest Service and joining Indian Forest Service in respect of 9 officers notionally as duty for all benefits including monetary benefits, considering as a special case, and to make payment with 10% interest from the date of interim orders of the Hon'ble High Court etc. The Tribunal by following Annexure A1 judgment of the Division Bench in W.P(C) No.5791/2009

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O.P(CAT) Nos.42/2020 & 8/2021

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and connected cases as well as the abovementioned judgment of the Apex Court in A.K.Salim's case (supra) has rendered the impugned Ext.P3 final order dated 20.12.2018 which had led to the final disposal of O.A.No.701/2016. A reading of Ext.P3 order would make it clear that the competent authorities of State Government and other respondents have taken a clear stand that the delay in convening the selection committee was not really attributed to them and was on account of certain changes of norms for the selection consequent to the intervention made by the Punjab and Hariyana High Court in the judgment/order dated 1.2.2010 in CWP No.15798/2009 and connected cases whereby it was ordered that expression 'selection year' appearing in Regulation 2(1)(1) of IFS (Appointment and promotion) Regulations can only mean the period commencing on 1^st of January and ending on 31^st December of the year concerned etc. and that the actual consideration of the incumbents for IFS promotion by the said Committee had to be revised by the other authorities concerned like the UPSC and Union Government etc. and therefore the State Government could not unilaterally take any initiative in expediting the meeting of the selection committee and therefore the delay occurred on account of reasons totally beyond the control of the State Government and that

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O.P(CAT) Nos.42/2020 & 8/2021

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therefore the above said pleas of original applicants may be declined etc.

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However the Tribunal as per Ext.P3 impugned final order dated 20.12.2018 in O.A.No.701/2016 has noted that the very same problems had arisen in the case of other officers which led to the above said direction in Annexure A1 common judgment rendered by the Division Bench of this Court whereby the issue in regularising the service during the intervening period from the date of actual retirement from the State Forest Service upto the date of induction in Indian Forest Service along with monetary benefits. This led to the issuance of Anneuxre 2 Government Order in that case. Hence, it is found that the Tribunal has ordered in paragraph 9 of the Ext.P3 impugned final order (see pages 6 and 7 thereof.) that the present applicant is also entitled to same benefits as is granted to the other officers as per the order in Annexure 2. Therefore, it can be seen from a reading of paragraph 9 of Ext.P3 order that the the Tribunal has rightly ordered and directed that that reliefs granted by the Division Bench of this Court as per Annexure 1 judgment is to be followed in this case as well. It is relevant to refer the paragraph No.9 of the impugned Ext.P3 order rendered by the Central Administrative Tribunal, Ernakulam in O.A.No.701/2016 is

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O.P(CAT) Nos.42/2020 & 8/2021

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reads as follows:

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It is seen that the same problems had arisen in the case of other officers also and the Hon'ble High Court of Kerala had, as per orders at Annexure A-1, considered the issue of regularising the service during the intervening period and allowed them the benefits. Accordingly, 1^st respondent had issued orders as per Annexure A-2. We are of the view that the applicant in this case also is entitled to the same benefits as has been granted to the officers as per order at Annexure A-2.

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Perhaps the solution to the problem, at least, in future would be to take timely action in order to select eligible candidates for promotion to the IFS promptly rather than waiting for several years citing one reason or the other. In several cases coming up before this Tribunal even now, we have seen this lethargic attitude being taken by the respondent No.1, the State Government, in forwarding the details of those who are in the zone of consideration thereby delaying the selection Committee Meeting at the level of the UPSC. Original Applications are pending from officers who claim promotion to the IFS for 2016 and 2017 vacancies and it is a matter of regret that Selection Committee Meeting is yet to take place even in December, 2018. This is an issue which requires urgent redressal. In so far as the merit of this case is concerned, we are of the view that the O.A has merit on its side. We allow the reliefs sought for except in the matter of interest for delayed payment.” (emphasis supplied)

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It is this Ext.P3 impugned order challenged in this Original Petition filed on behalf of State of Kerala and officers concerned. The main submission made by Sri.B.Vinod, the learned Senior Government Pleader appearing for the petitioners is that the state authorities concerned cannot be blamed for the undue delay, if any, occurred in convening the meeting of the selection committee as this has happened for the reasons beyond the control of the State Government and the issues regarding the compliance of the directions issued in the aforementioned judgments was to be primarily done by the officials concerned of the Union Public Service Commission and the Union

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O.P(CAT) Nos.42/2020 & 8/2021

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Government etc. The learned Senior Government Pleader would invite our attention to the details of the judgment/order dated 1.2.2010 rendered by the Punjab and Hariyana High Court in CWP No.15798/2009 about which a detailed reference is made in office memorandum No.22012/99/2009-AIS(1) issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training dated 25.8.2010, which is produced as Annexure R1 in the reply statement filed in the connected O.A No.748/2016 on the file of the Central Administrative Tribunal, Ernakulam which has given rise to connected O.P(CAT) No.8/2021 (see page Nos.48 and 49 of the paper book of O.P(CAT) No. 8/2021). The relevant portion of the judgment/order dated 1.2.2010 rendered by the Punjab and Hariyana High Court in CWP. No.15798/2009 as extracted in the above said Annexure R1 office memorandum reads as follows: (See page Nos.48 and 49 of the paper book of O.P (CAT) No.8/2021.

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“The sole question which emerges for determination of the Court is whether the age of eligibility is required to be considered with reference to 1^st January of the year for which the Select List is prepared or any other date. A plain reading of the expression 'year' in Regulation 2(1) shows that a year would mean the period commencing on January 1^st and ending on December 31 of the same year. A further perusal of Regulation 5(3) would make it evident that the Committee is debarred from considering the cases of such officers of the State Civil Service who have attained the age of 54 years. The regulation further says that the age of 54 years is required to be determined on January 1^st of the year for which the Select List is prepared. In the present case, four vacancies are of the year 2006 and one vacancy of earlier years became available in the year 2006 on

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O.P(CAT) Nos.42/2020 & 8/2021

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account of non-joining of Sh.Joginder Lal Jain, PCS. It has been rightly contended that the emphasis in Regulation 5(3) on the expression “the year for which the Select List is prepared”, which would mean that meeting of the Committee may be held in a subsequent year but the eligibility of the officers in so far his age is concerned would remain intact. It has to be judged with reference to the year for which the Select List is prepared.

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We find substantive support to the aforesaid submission in unnumbered proviso to Regulation 5(1). According to the aforesaid proviso if no meeting of the Committee could be held during a year then whenever the Committee meets again, the Select List has to be prepared separately for each year during which the Committee could not meet as on December 31^st of each year. The aforesaid proviso is consistent with the definition of expression 'year' in Regulation 2(1)(1). Therefore, the vacancies for the year 2006, i.e from 01.01.2006 to 31.12.2006 have to be determined as on December 31^st of that year. The Select List, which has been erroneously styled as 'Select List of 2007', in fact, is the Select List for the year 2006. Therefore, the age of the petitioner has to be determined as on 01.01.2006. Accordingly, he would be eligible.”

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It is pointed out that aggrieved by the said judgment rendered by the Punjab and Haryana High Court in CWP No.15798/2009 the department had preferred Special Leave Petition © No.14002/2010 which was later dismissed by the Apex Court vide order dated 31.5.2010. Later based on the above said judgment rendered by the Punjab and Hariyana High Court, the Government Authority, Union Government, Ministry of Personnel, Public Grievances and pensions has issued guidelines contained in the last paragraph of the said office memorandum dated 25.8.2010 (See page No.49 of the paper book of O.P(CAT) No.8/2021) which reads as follows:

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O.P(CAT) Nos.42/2020 & 8/2021

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“i) The said order would be implemented w.e.f 1^st February, 2010 i.e date of the High court order.

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ii) Whereever meetings of the Selection Committee in respect of any All India Service have not been held or meetings have been held but minutes of the meeting have not been approved by the Commission, the same will be held in accordance with the interpretation of Regulation given by the Hon'ble High Court and confirmed by Hon'ble Supreme Court.

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iii) Where meetings have already been held and minutes have been approved the same will not be opened unless and until there is a specific director from a Court of Law.

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iv) The eligibility of State Service officers in cases of Review Selection Committee meeting would be reckoned on the basis of Regulations/interpretation prevailing in that year unless otherwise directed by a Court of Law.

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v) Select List will henceforth be styled coinciding with the year of vacancies. In case there are two overlapping Select List for a particular year the same will be distinguished by styling the Select List of that year (correspondent to the year in which vacancies have arisen) and the other select list will be named by adding 'A' to that year.”

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On the above said basis, the learned Senior Government Pleader would contend that the undue delay, if any, which has occurred for convening the selection committee for considering the cases of incumbents of each cases, if any, cannot be attributed in any manner to the State Government Authorities and that the norms and guidelines had to be revised for meticulous compliance of the directions issued by the Punjab and Haryana High Court in the above said judgment and that admittedly, the applicants have not worked for the relevant period in question and since no work had been performed by them and since the delay in convening the selection committee cannot be attributed substantially to the State Government and the monetary consequences is to be suffered by the State Government, the above said verdict of the

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O.P(CAT) Nos.42/2020 & 8/2021 18

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Tribunal may be interdicted by this Court. Further it is pointed out that in both these cases, the applicants concerned have retired from service and it is only much thereafter they had preferred representations before the State Government claiming the benefits of regularizing the period from the date of retirement from the state government service upto the date of induction into the Indian Foreign Service, in terms of Annexure A1 judgment of the Division Bench of this Court and that their case cannot be treated as identical and similar with other cases and that therefore, the claims are barred by long and unexplained delay and laches. More particularly as they made the claim for the first time much after the retirement and not immediately after they had been given the benefit of date of induction etc.

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Moreover, it is pointed by the learned Senior Government Pleader that the reasonings of the Tribunal given in paragraph 8 of Ext.P3 order is that no convincing reasons have been given by the authorities concerned for not considering the applicant for promotion to the claimed selection year 2008 etc., are not tenable. This is for the simple reason that it is self evident and manifest, from a mere reading of the above said Annexure R1 office memorandum that the clarifications and guidelines in that regard were issued by the

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O.P(CAT) Nos.42/2020 & 8/2021 19

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Government of India, Ministry of Personnel, Public Grievances and Pension only on 25.8.2010 and only thereafter the authorities of Union Public Service Commission and the State Government etc. should act on the basis of such revised norms and guidelines for ensuring timely convening of the selection committee. Further that any early attempt at the hands of the State Government for getting the selection committee convened, prior to the clarifications issued in Annexure R1 office memorandum dated 25.8.2010 may not be in any manner fruitful and even the authorities of the Union Public Service Commission may have been helpless in view of the process involved in implementing and resetting the revised norms, so as to meticulously comply with the judgment of the Punjab and Haryana High Court referred to above. In the instant case, the selection committee has been thereafter convened and even going by the case of the applicant in this case and other cases had been inducted into Indian Forest Service on 11.10.2012 and selection for the previous years also had to be conducted by the selection committee and in the instant case, the Tribunal has gone wrong in not taking into the account the vital and crucial relevant aspects and also the conduct of the applicants in the long and inordinate delay in making the claim as stated hereinabove. Therefore,

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O.P(CAT) Nos.42/2020 & 8/2021 20

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the claims are thus even barred by inordinate delay and laches etc.

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Sri.S.Sujin, the learned counsel appearing for the original applicants would point out that the well considered order of the Tribunal will not deserve any interdiction and would point out that a reading of Annexure R1 office memorandum as well as the judgment of the Punjab and Haryana High Court referred to therein would make it clear that the directions issued by the said High Court is not on the basis of any new law but only on the basis of the existing provisions and regulations and the said High Court had only interfered with the legally wrong understanding of the authorities concerned in working out the terms of the regulations and that therefore, the interdiction made by the said High Court cannot be attributed as a cause of the delay. On the other hand the judicial interdiction by the said High Court was necessarily on account of the legally wrong understanding of the All India Service Regulations by the authorities concerned including Union of India, Union Public Service Commission and the State Government and that therefore, the legally right interdiction made by the Punjab and Haryana High Court, which is discernible from the fact that the Special Leave Petition filed by the Union Government has been dismissed by the Apex Court, would make it clear that such judicial

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O.P(CAT) Nos.42/2020 & 8/2021 21

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interdiction cannot be cited as the grounds to properly explain the delay in convening the selection committee meeting and that the applicants in these cases are the victims of the wrong understanding of statutory regulations by the above said authorities concerned and that therefore, the reason for the delay has not been explained properly and that therefore the Tribunal has rightly granted the above said reliefs. Further that all what has been claimed by the applicants in these cases is only that the similar benefits should be extended as is given to the beneficiaries of Annexure A1 common judgment rendered by the Division Bench as well as than by the Apex Court in the aforecited judgment in A.K.Salim' s case (supra) .

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After hearing both sides, it is to be borne in mind that the specific directions issued by the Apex Court in A.K.Salim 's case (supra), on the basis of which the above said Annexure A1 common judgment has been rendered by the Division Bench of this Court in W.P (c) No.No.5791/2009 and connected cases are as follows: (as can be seen from the paragraph 14 thereof).

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“14. In view of the consensus arrived at between the parties, Appellant 2 i.e the Selection Committee through UPSC, is directed to convene the meeting for considering the case of Respondent 1 and other eligible candidates for promotion to Indian Forest Service within two months from today. In case the Respondent 1 is selected for induction into Indian Forest Service, the intervening period shall be regularised notionally with effect from 1.6.2007 and Respondent 1 shall be accorded

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all benefits including monetary benefits. The appeal is allowed only to the extent indicated herein above.”

¶146

The directions issued by the Tribunal as per para 6 of Ext.P3 order are only replicating the directions issued by the Division Bench of this Court in Annexure A1 common judgment dated 18.3.2014 in W.P(C) No.5791/2009 and connection cases. A reading of Annexure A1 judgment in W.P(C) No.5791/2009 and connected cases would make it clear that the directions therein granted are in terms of the benefits ordered in the above said judgment of the Apex Court in A.K.Salim 's case (supra) . A reading of the para 14 of the above said Apex Court judgment A.K.Salim 's case (supra) it has been held that if the 1^st respondent in the Civil Appeal before the Apex Court/Original Applicant before the Tribunal is later selected for induction in the Indian Foreign Service, then the intervening period shall be regularised notionally with effect from 1.6.2007, which is the day he ought to have been selected in the Indian Foreign Service, taking into account the vacancy position etc. Since the original applications are claiming that the intervening period, on the date of retirement from the State Service upto the actual induction into Indian Forest Service is to be regularised etc. as above, presumably that they are actually entitled for Indian

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O.P(CAT) Nos.42/2020 & 8/2021 23

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Forest Service selection based on the vacancy position prior to their actual date of retirement from the State Forest Service, eventhough their actual induction into the Indian Foreign Service is on 11.10.2012. Since the directions given to the Tribunal is on the basis of the directions given by the Division Bench of this Court at Annexure A1 and since the directions in the said Division Bench judgment is in turn based on the above said directions issued in para 14 of the Apex Court judgment in A.K.Salim 's case (supra). The substantive direction involved in this case, which is on the basis of the direction in para No.14 of the Apex Court judgment in A.K.Salim’s case supra is that, they should be regularised notionally with effect from the date on which they ought to have been legally promoted to the IFS.

¶149

Having regard to the fact that the applicants who are not in any manner responsible for the delay in convening of the selection committee and as a matter of fact, it can be seen from the pleadings that some of them have consistently approached the Tribunal and got verdicts from that Forum, directing the competent authorities to convene and conduct the selection committee and in spite of the diligent efforts, it was not complied and it is only much later that the selection committee has been convened. Whether the reason for delay

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O.P(CAT) Nos.42/2020 & 8/2021

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is on account of the revision of norms consequent to the interdiction made by the Punjab & Haryana High Court in the judgment cited hereinabove or on account of delay by all or any of the main authorities concerned like the Union Government, UPSC or the State Government as the case may be. One thing is clear and it is that the applicants cannot be blamed that they have contributed to the delay and it has certainly occurred due to reasons totally beyond their control. The directions granted by the Apex court in para No.14 of A.K.Salim’s case supra [2008 (11) SCC 495] would make it clear that, in such cases they have to be regularised notionally with effect from the date on which they ought to have been legally promoted to the IFS and accorded all benefits including monthly pension therefrom, notwithstanding that they have been actually inducted in the IFS much later and that too after the retirement from the State service.

¶153

Having regard to the crucial fact that the applicant in O.A No.701/2016 as well as the applicants in O.A No.748/2016 have for the first time agitated these issues by filing representations only much after the retirement from the Indian Forest Service, and as they have not actually discharged from their duties and functions in the post for the period from the date of retirement from the State Forest Service up to

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O.P(CAT) Nos.42/2020 & 8/2021

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the actual date of induction in the Indian Forest Service on 11-10-2012 and as there is a specific direction issued by the Apex Court in para No.14 in A.K.Salim’s case supra is that, they are to be regularised notionally with effect from the due date, we are of the view that in this case the applicants will be entitled for monitory benefits only on the basis of revised pensionary benefits due to them on account of such notional regularisation. Further it can be seen that, the directions issued by the Division Bench of this Court in Anx.A1 judgment in the last paragraph thereof, is that the interest @ 10% per annum is to be computed from the period of the interim orders granted in the writ petitions in these cases as referred to in Anx.A2 G.O. The said factual aspect is absent in this case inasmuch as no interim orders have been passed either before the Tribunal in this O.As or in the writ petitions in these cases regarding the abovesaid claims and maintenance sought for by the applicants.

¶157

Moreover, since the Tribunal has not issued any precise directions in these cases and has only followed the direction issued by the Division Bench at Anx.A1, which in turn has substantially followed the directions issued by the Apex Court in the afore cited judgment, there could be unnecessary confusion even for the authorities of the

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State Government in implementing the direction of the Tribunal. A reading of the impugned final order in O.A No.748/2016 rendered by the Tribunal (which is impugned in O.P (CAT) No.8/2021) would make it clear that the directions issued therein is that, the directions in O.A No.701/2016 are to be followed. This is likely to cause avoidable confusions even for the officials concerned of the State Government for the compliance of the directions of the Tribunal.

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Accordingly, it is ordered that the competent authorities like the petitioners should ensure that orders are passed so as to order that the intervening period shall be regularised notionally with effect from the date on which the applicant is to be legally entitled for promotion to the IFS as envisaged in para No.14 of the judgment of the Apex Court in UPSC & anr. v. A.K.Salim & ors. [2008 (11) SCC 495]. Since the said regularisation is only on notional basis, the pay and allowances of the applicants may be re-fixed on that basis and consequently the last pay of the applicants as on the date of their retirement from the Indian Forest Service should also be properly re-fixed. Consequently, the pensionary benefits of the applicants should also be revised on the basis of the said revised last pay in pursuance of such notional regularisation as aforesaid and arrears of the revised pensionary benefits including

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revised pension, revised gratuity, etc should be paid and disbursed to them after deducting the amounts of unrevised pensionary benefits already granted to them and the said differential monitory benefits by way of revised pensionary benefits deducted from the pre-revised pensionary benefits should be sanctioned and disbursed to the applicants within four months from the date of production of a certified copy of this judgment. Further, since no interim orders have been passed by the Tribunal or by this Court unlike the case covered by Anx.A1 judgment and Anx.A2 G.O, it is ordered that interest on such differential revised pensionary benefits may be paid @ 6% per annum from the date of the final order of the Tribunal in these cases (which is 20-12-2018 in O.A No.701/2016 and 02-04-2019 in O.A No.748/2016), or from the due date of such revised pensionary benefits, which ever is later, up to the date of actual disbursal of such differential amount.

¶164

We have reduced the rate of interest from 10% per annum as ordered by the Division Bench in Anx.A1 judgment to 6% per annum in these cases, as there has been delay on the part of the applicants in raising their claims inasmuch as they have raised these claims before the State Government for the first time only after the retirement and not while in service. It is certified that actual arrears of pay and

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allowances need not be paid to the applicant for the period during which he has not actually worked.

¶168

The case in O.P (CAT) No.8/2021 (which arises from the impugned final order dated 02-04-2019 in O.A No.748/2016 of the CAT, Ernakulam Bench, is almost identical and similar. As a matter of fact, the directions issued by the Tribunal in the said O.A is that the directions issued in the former O.A No.701/2016 is to be followed in the latter O.A as well. Hence it is ordered that the directions and orders passed by us in O.P (CAT) No.42/2020 will regulate and govern the case in O.P(CAT) No.8/2021 (which arises from O.A No.748/2016 on the file of CAT, Ernakulam Bench). Further it is also ordered that, the directions and orders passed by the Tribunal in the abovesaid O.A will stand modified to the abovesaid extent.

¶169

With these observations and directions the above Original Petition will stand finally disposed of.

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Sd/ALEXANDER THOMAS, JUDGE

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Sd/K.BABU, JUDGE

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Ab/KAS

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O.P(CAT) Nos.42/2020 & 8/2021

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APPENDIX OF OP (CAT) 42/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE NO.180/00701/2016 ALONG WITH ANNEXURES. EXHIBIT P1(A1) TRUE COPY OF THE JUDGMENT DATED 18.03.2014 OF THE HON'BLE COURT OF KERALA IN WP(C)NO.5791/2009 AND CONNECTED CASES. EXHIBIT P1(A2) TRUE COPY OF THE ORDER ISSUED BY THE GOVERNMENT OF KERALA G.O(RT)NO.2165/2015/GAD DATED 25.03.2015. EXHIBIT P1(A3) TRUE COPY OF THE REPRESENTATION DATED 14.03.2016 SUBMITTED BY THE APPLICATION BEFORE THE 2ND RESPONDENT EXHIBIT P1(A4) TRUE COPY OF THE ORDER OF THE REPLY ISSUED BY THE 1ST RESPONDENT TO THE APPLICATION VIDE LETTER NO.E522113/SPL.C1/2016/GAD DATED 21.04.2016. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT ALONG WITH ANNEXURES. EXHIBIT P2(R1) TRUE COPY OF THE OFFICE MEMORANDUM NO.22012/99/2009-AIS(1)DATED 25.08.2010. EXHIBIT P2(R2) TRUE COPY OF LETTER NO.14362/SPL.C1/2009/GAD DATED 26.02.2011. EXHIBIT P2(R3) TRUE COPY OF LETTER NO.18014/02/2005 FIS II DATED 09.11.2006 FROM MINISTRY OF ENVIRONMENT AND FOREST. EXHIBIT P2(R4) TRUE COPY OF DECLARATION OF SRI.JANARDHANAN. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 20.12.2018 IN O.A.NO.180/00701 OF 2016.

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O.P(CAT) Nos.42/2020 & 8/2021

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APPENDIX OF OP (CAT) 8/2021

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PETITIONER'S/S EXHIBITS:

¶182

EXHIBIT P1 TRUE COPY OF THE NO.180/00748/2016 ALONG WITH ANNEXURES EXHIBIT P1 (A1) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST RESPONDENT ON 28.05.2016 EXHIBIT P1 (A2) TRUE COPY OF THE ORDER DATED 02.07.2016 ISSUED BY THE RESPONDENT REJECTING THE REQUEST OF THE 1ST APPLICANT EXHIBIT P1 (A3) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT IN WPC NO.5791 OF 2009 AND CONNECTED CASES EXHIBIT P1 (A4) TRUE COPY OF THE ORDER DATED 25.03.2015 ISSUED BY THE GOVERNMENT EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT ALONG WITH ANNEXURES EXHIBIT P2 (R1) TRUE COPY OF OFFICE MEMORANDUM NO.22012/99/2009-AIS (1) DATED 25.08.2010 EXHIBIT P2 (R2) TRUE COPY OF LETTER NO.143262/SPL.C1/2009/GAD DATED 26.01.2011 EXHIBIT P2 (R3) TRUE COPY OF LETTER NO.18014/02/2005 IFS II DATED 09.11.2006 FROM MINISTRY OF ENVIRONMENT AND FOREST EXHIBIT P2 (R4) TRUE COPY OF DECLARATION OF SRI.SATHISH WILLIAMS AND SRI.K.J.SAMUEL EXHIBIT P3 TRUE COPY OF THE ORDER DATED 02.04.2019 IN OA NO.180/00748 OF 2016

The State of Kerala v. S.Janardanan

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The State of Kerala v. S.Janardanan

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