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Supreme Court of India
Union Of India Ministry Of … vs Trilok S. Bhandari on 29 September, 2021Author: Ajay Rastogi
Bench: Ajay Rastogi, Abhay S. Oka
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 6091 OF 2021
(Arising out of SLP(Civil) No(s). 21736 of 2007)
UNION OF INDIA, THROUGH THE
SECRETARY MINISTRY OF ENVIRONMENT
AND FOREST ….APPELLANT(S)
VERSUS
TRILOK S. BHANDARI & ORS. ….RESPONDENT(S)
JUDGMENT
Rastogi, J.
1. Leave granted.
2. The instant appeal is directed against the judgment and order
dated 14th November, 2006 passed by the High Court of
Uttarakhand directing the present appellant to adjust the original
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
Date: 2021.09.29
17:54:44 IST
Reason:
petitioner1st respondent and other persons like him who were
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earlier promoted in the cadre of Indian Forest Service (hereinafter
being referred to as the “IFS”) in the year 1996 against the notional
vacancies and consequential pensionary benefits keeping in view
the judgment of this Court in Union of India and Others Vs.
Vipinchandra Hiralal Shah1.
3. The facts in brief which are relevant for the present purpose
are that the 1st respondent was the member of State Forest Service
of UP Cadre and after clubbing of the earlier year vacancies of
198496, promotions were made to the IFS cadre with effect from 6 th
September, 1996 by an Order dated 16 th September, 1996 that
came to be challenged by filing of an original application before the
Central Administrative Tribunal(hereinafter being referred to as the
“Tribunal”) on the premise that clubbing of vacancies is not
permissible and it is in violation of Regulation 5 of the
IFS(Appointment by Promotion) Regulations, 1966(hereinafter being
referred to as “Regulations 1966”) based on the judgment of this
Court in Union of India and Others(supra). The Tribunal allowed
1 1996(6) SCC 721
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the application and quashed the order of promotion dated 10 th
September, 1997 as follows:
“30. In view of the foregoing discussions, we have no manner of doubt
that it was incumbent upon the respondents to prepare separate year
wise vacancies restricting zone of consideration in relation to the
vacancies of each year. This it is, however not to suggest that officers
who are included in the year wise select list are to be given promotion
retrospectively from the year in which they are selected. This was the
proposition advanced… and we reject the same.
31. The Impugned select list is accordingly quashed only on the short
point that this was a combined select list of vacancies which arose
during a period of nearly 12 years. We direct the respondents to
prepare year wise select list by holding review DPC in accordance with
the law. Officers who have already been promoted on the basis of
impugned zsselect list need not, however, be reverted but their further
continuance as members of IFS cadre would depend on the outcome
of the review DPC which shall be held by the Respondents within a
period not exceeding 2 months…”
4. The order of the Tribunal came to be challenged in Civil
Miscellaneous Writ Petition No. 2663 of 1998 which came to be
dismissed by a judgment dated 11th May, 2001 upholding the order
of the Tribunal pursuant to which the review recommendations and
appointments were made by notification dated 8th July, 2005
followed with notification dated 4th/5th October, 2005.
5. It may be relevant to note that the recommendations which
were made by notifications dated 8th July, 2005 and 4th/5th October,
2005 pursuant to which the officers were promoted in the IFS were
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never a subject matter of challenge at least in the instant
proceedings.
6. The 1st respondent was earlier in the list of officers promoted
under the IFS cadre by an order dated 16 th September, 1996 but
when the review recommendations were made pursuant to the order
of the Tribunal, he did not find place in the list of officers promoted
by notifications dated 8th July, 2005 and 4th/5th October, 2005. The
1st respondent stood retired from service on attaining the
superannuation on 30th November, 1996 just three months after the
promotions made in the first instance by an order dated 16 th
September 1996.
7. The 1st respondent filed a writ petition before the High Court of
Uttarakhand seeking writ of mandamus that such of the officers
whose name did not find place in the review recommendations
made by the selection committee pursuant to which appointments
were made by notifications dated 8th July, 2005 and 4th/5th October,
2005 may be adjusted keeping in view the directions issued by this
Court in Union of India and Others(supra).
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8. The writ petition filed at his instance came to be allowed by
the High Court by a judgment and order dated 14 th November,
2006, the operative part of the order is referred hereunder:
“15. The petitioner as well as other persons like the petitioner, who
were selected as per final seniority list of 1996 and were promoted
were entitled to be adjusted against those eight vacancies against
which the notional promotions were made as the notional promotions
were only for the selection grade and for pensionary benefit. It is also
clarified here that the petitioner has also retired, therefore he is also
entitled for notional promotion allocating him year of allotment as per
rules.
16. For the reasons recorded above, we allow the writ petition
agreeing with the view taken by central Administrative Tribunal,
Ahmedabad Bench which is in the light and spirit of the judgment of
Hon’ble the Supreme Court in Vipinchandra Hiralal Shah’s case
(supra) and declare that the petitioner and other persons who were
promoted in the year 1996 (w.e.f. 1992) stand adjusted as they have
been promoted according to Rules on the recommendation of Union
of Public Service Commission by the Union of India.”
9. The judgment impugned came to be challenged by the Union
of India before this Court and while issuing notice dated 12 th
November 2007, this Court directed to maintain status quo in the
meantime and because of the interim order passed by this Court for
all practical purposes, officers who were earlier selected and
appointed in the IFS cadre in 1996 but did not find place in the
review selection committee held pursuant to which the
appointments were made by notifications dated 8 th July, 2005 and
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4th/5th October, 2005 were defacto allowed to continue in the IFS
cadre. The relevant order of this Court dated 12 th November 2007 is
as under:
“Issue notice on the application for condonation of delay as
also on the special leave petition.
Statusquo as of today shall be maintained, in the
meantime.”
10. Pending appeal in this Court, various interlocutory
applications were filed seeking impleadment. Pursuant thereto, 12
officers were impleaded as party respondents and all of them jointly
prayed that they may be granted the same benefits as being
extended by the Division Bench of the High Court in favour of the
1st respondent Mr. Trilok S. Bhandari on whose instance the writ
petition was filed.
11. It is informed that all the added respondents who although
could not be promoted in the review selection committee pursuant
to which appointments were made by notifications dated 8 th July,
2005 and 4th/5th October, 2005, were appointed in IFS against the
vacancies of subsequent years and lost their interest in the pending
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appeal and it is contested only by respondent no. 13 who
unfortunately could not be appointed against the subsequent year
vacancies but was allowed to continue as defacto officer in the IFS
Cadre because of the interim order passed by this Court dated 12 th
November, 2007 and while holding the post in the IFS cadre stood
retired from service in September 2013.
12. It is further informed to this Court that as a member of the
IFS, after his superannuation in September 2013, he is getting a
provisional pension and all other emoluments were paid to him as a
member of the IFS although the fact is that his appointment in the
cadre of IFS was quashed and set aside and he could not be
selected in the review selection committee pursuant to which
appointments were made by notifications dated 8 th July, 2005 and
4th/5th October, 2005 or against the vacancies of later years, but he
was allowed to continue defacto in the IFS cadre because of the
stay order passed by this Court, and all benefits were extended to
him treating him to be the member of the IFS cadre.
13. Mr. Sanjay Jain, learned Additional Solicitor General, submits
that the appointments made on the recommendations of the review
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selection committee by notifications dated 8th July, 2005 and 4th/5th
October, 2005 was never a subject matter of challenge and the
judgment on which the reliance was placed of this Court was
dealing with the appointments and selections made of the officers in
the Indian Administrative Service and while holding that clubbing of
vacancies was not permissible and being in contravention to
Regulation 5 of Regulations 1955, the order came to be passed in
exercise of power of this Court under Article 142 of the Constitution
of India for adjustment of the officers against the future vacancies,
was of no assistance and the High Court has exceeded its
jurisdiction in granting such omnibus relief which was in clear
violation of the Regulations 1966.
14. Mr. Ravindra Raizada, learned senior counsel appearing for
the State of UP submits that the officers who could not be selected
on the recommendations of the review selection committee in the
year 2005 or against the subsequent year vacancies have no right
to continue to be a member of the IFS cadre but they were allowed
to continue because of the interim order passed by this Court in the
instant appeal preferred at the instance of the appellant Union of
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India and mere continuance in the cadre of IFS under the interim
order of this Court would not confer any right to claim relief, more
so, when the recommendations made by the review selection
committee was never a subject matter of challenge.
15. As observed, the 1st respondent Trilok S. Bhandari stood
retired from service on 30 th November, 1996 and other officers who
were impleaded in the instant appeal, as informed to this Court,
were appointed in the IFS cadre against the vacancies of
subsequent years and the only officer who was left out was
respondent no. 13 who could not be selected even in the
subsequent year vacancy and finally retired in September, 2013
and this fact is not disputed that he was allowed to continue in the
IFS cadre because of the interim order passed by this Court
directing the parties to maintain status quo in the meantime by an
order dated 12th November, 2007.
16. Ms. Rekha Pandey, learned counsel appearing for respondent
no. 13 submits that he was allowed to continue in the IFS cadre
and finally retired from service while holding the post as an IFS
officer, at the same time, his pension and other emoluments have
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also been computed on the last pay drawn in the IFS cadre. In the
given circumstances, learned counsel submits that there is no
dispute so far as factual matrix is concerned, as he has throughout
worked in IFS cadre and retired from service, in the peculiar facts
and circumstances of the case, his service conditions may be
protected as he has been paid his retiral benefits and getting his
provisional pension as an IFS Officer.
17. We have called upon Mr. Ravindra Raizada, learned senior
counsel appearing for the State of UP to take instructions that if
this officer would not have been allowed to continue in the IFS
cadre and allowed in the cadre of State Forest Service, what benefits
he was entitled for when he finally retired in September 2013.
18. Learned counsel on instructions fairly submits that he was in
the grade pay of Rs. 6600 as officer in the IFS cadre but if he would
have been allowed to continue as State Forest Officer in 1996, he
would have been in the grade pay of Rs. 5400 but the officer junior
to him in the State cadre(State Forest Service), in the interregnum
period, was promoted as Deputy Director in the grade pay of Rs.
6600 in the year 1997. There was further Assured Career
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Progression Scheme for the state officers on completion of 10 years
(Rs.6600), 6 years (Rs.7600) and 10 years (Rs.8700). If this Officer
would have been continued to be a member of the State Forest
Service, and his junior being promoted in the year 1997 in the
grade pay of Rs. 6600, at least he would have been entitled for
promotion and also for assured career progression scheme in
future.
19. It is not disputed that respondent no. 13 who could not be
appointed on the recommendations of the review selection
committee in the year 2005 and also for the subsequent year
vacancies in the IFS cadre but as a member of the State Forest
Service, his pay scale at least could not have been detrimental to
his interest as what being paid to him as an IFS officer. It cannot
be denied that respondent no. 13 who could not be appointed
against the subsequent year vacancies has no right to continue and
the fact is that the officer has not challenged the appointments
made on the recommendations of the review selection committee or
the recommendations made by the selection committee against the
vacancies of subsequent years. At the same time, this fact cannot
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be ignored that he was allowed to continue till he attained
superannuation in September 2013 as a defacto IFS officer
because of the interim order passed by this Court.
20. After we have heard learned counsel for the parties, we are of
the considered view that the order passed by the High Court is
unsustainable in law for the reason that in the absence of the
recommendations made by the review selection committee pursuant
to which the appointments were made by notifications dated 8 th
July, 2005 and 4th/5th October, 2005, being challenged, there was
no justification for the High Court to pass such omnibus directions
more particularly when the officer on whose insistence the writ
petition was filed, stood retired from service in November 1996 on
attaining the age of superannuation and the judgment in Union of
India and Others(supra) on which the Division Bench blindly
placed reliance, in our considered view, has no application in the
facts of the instant case.
21. Thus, we are of the considered view that the judgment
impugned dated 14th November, 2006 of the Division Bench of the
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High Court is unsustainable and deserves to be quashed and set
aside.
22. At the given time, taking into consideration the seriatim of
facts which has been brought to our notice and other
officers(impleaded respondents) who have been appointed against
the subsequent year vacancies in IFS Cadre have lost their interest
and so far as respondent no. 13 is concerned, who has contested
this matter before this Court, although was not selected against the
vacancies of subsequent years but was allowed to continue as an
Officer of the IFS cadre for all practical purposes, remained a de
facto member of the IFS cadre because of the interim order passed
by this Court dated 12th November, 2007 and stood retired from
service in September 2013 as an IFS officer, while exercising our
power under Article 142 of the Constitution of India, we direct the
concerned authorities that the officer may be treated to be an
Officer of the IFS cadre and his pension and all other retiral benefits
be computed treating him to be a member of the IFS cadre for all
practical purposes.
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23. The appeal succeeds and accordingly allowed. The judgment
of the High Court of Uttarakhand dated 14 th November, 2006 is
hereby quashed and set aside while protecting the rights and
privileges availed by V.P. Singh, respondent no. 13, as aforestated.
24. Pending application(s), if any, stand disposed of.
……………………………..J.
(AJAY RASTOGI)
…………………………….J.
(ABHAY S. OKA)
NEW DELHI
SEPTEMBER 29, 2021
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