THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.24765 2001 September 23, 2011 Between: C.K.Mishra, IFS, S/o.Ramakrishna Mishra .. Petitioner And Union of India, represented by its Secretary, Ministry of Environment and Forests, Paryavan Bhavan, CGO Complex, Lodhi Road, New Delhi And others …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.24765 of 2001 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The petitioner is a member of Indian Forest Service (IFS) since 1985. He had held the post of Divisional Forest Officer (DFO), which is a cadre post, from 1989 to March, 1999. He was then posted as Project Director, District Rural Development Authority (DRDA), Anantapur duly declaring the said post as equivalent in status and responsibilities to a cadre post. While he was working there, he was transferred. He was advised to await posting orders. For a period of about two months he was not given posting, but was asked to vacate the official quarters. He, therefore, filed the original application being O.A.No.1916 of 1999 before the Central Administrative Tribunal, Hyderabad Bench. The O.A. was disposed of on 21.12.1999 directing the Government to consider his representation for posting expeditiously and not to ask the petitioner to vacate the quarters. At that time, one K.Saradhi, a member of IFS, who was working as Divisional Forest Officer (DFO), Flying Squad (FS), Nalgonda died. The Government of Andhra Pradesh passed orders in G.O.Rt. No.5800, dated 17.12.1999, posting the petitioner as DFO (FS), Nalgonda Division duly treating the said post as equivalent in status and responsibilities to the cadre of DFO born on the IFS cadre strength of Andhra Pradesh. He made a representation to the Government on 22.12.1999 contending that the said post is not equivalent to a cadre post; there are no facilities; there is no office; there are no staff members and there is no income generation to the State exchequer. He allegedly did not join at Nalgonda pending his representation. When the same was not considered, he again filed O.A.No.37 of 2000. The same was disposed of on 12.1.2000 directing the Government to pass appropriate orders within a month. The Government then passed orders on 03.2.2000 rejecting the representation dated 22.12.1999 of the petitioner for appropriate posting. Aggrieved by the same, he filed O.A.No.208 of 2000, which was dismissed by the learned Tribunal, aggrieved by which the petitioner filed the instant writ petition. The petitioner contended before the learned Tribunal that declaration of DFO (FS) as equivalent in status and responsibilities to the post of DFO is unlawful; his transfer vide G.O.Ms.No.5800, dated 17.12.1989 was invalid; the said post is not commensurate with his status, as he was a Senior IFS Officer; the said post being an ex-cadre post was meant for Junior Officers of the State cadres; it was newly created without office, staff as well as residence and that the Conservator of Forests already recommended for its abolition. The learned Tribunal rejected these contentions. After referring E. P. Royappa v State of T.N.[1] they recorded a finding that the petitioner failed to produce satisfactory material to show that the post of DFO (FS) does not carry the same status and responsibilities of a cadre post. The Counsel for the petitioner submits that as per Rule 8 of the Indian Forest Service (Cadre) Rules, 1966, cadre post shall be filled by cadre officers only; posting of cadre officer in non-cadre post is illegal and unreasonable; as per Rule 9 of Indian Forest Service (Pay) Rules, 1968 (the Rules), no member of All India Service shall be posted in any post other than posts enumerated in Schedule-III unless the Government makes a declaration that the said post is equivalent in status and responsibility to a post equivalent to cadre post. He would submit that the declaration by the Government treating DFO (FS) as equivalent to cadre post in status and responsibility is not conclusive and it can be questioned by the officer concerned. He would point out that a post which was already recommended for abolition without proper office, staff and residence can never be treated as equivalent in status and responsibility to the post of regular DFO. The Assistant Government Pleader for Services-II would submit that the post of DFO (FS), Nalgonda has more onerous responsibilities and while rejecting his application the Government considered all the matters and the justification for treating the post as equivalent to the cadre post is sustainable. There is no dispute that the Government of Andhra Pradesh in their order in G.O.Rt.No.5800, declared under Rule 9 of the Rules the post of DFO (FS), Nalgonda as equivalent in status and responsibility to the cadre post of the Deputy Conservator of Forests born on the IFS cadre strength of Andhra Pradesh. Whether this would bar any challenge to the decision of the Government or does it confer any right on the cadre officer to seek invalidation of a transfer order whereunder he is posted as non- cadre officer? The law in this regard is no more res integra. In E.P.Royappa the majority observed that, “it would be open to a member of Indian … … Service to contend, notwithstanding the declaration of equivalence, that the non-cadre post to which he is appointed is in truth and reality inferior in status and responsibility to that post occupied him and his appointment to such non-cadre post is in violation of Article 311 or Articles 14 and 16”. It is also settled that the Government must apply its mind to the nature and responsibility of functions and duties attached to the non-cadre post and determine the equivalence. The pay attached to the non-cadre post is not material. When it is shown that the declaration of equivalence is made without application of mind to the nature and responsibilities of the functions and duties, attached to the non-cadre post or extraneous or irrelevant factors are taken into account in determining the equivalence or the nature and responsibilities of the functions and duties of the two posts are so dissimilar that no reasonable man can possibly say that they are equivalent in status and responsibility, the Court can set at naught the declaration of equivalence (Para 82 of E.P.Royappa). Thus a declaration of equivalence made by the Government must show that (i) it is made on due application of mind; (2) it is not mala fide or in any colourable exercise of power or it is a cloak for displacing a member of the service from a cadre post which he is occupying, or not made based on extraneous or irrelevant factors; (3) the nature and responsibility of the functions and duties attached to the non-cadre post are taken into account in determining the equivalence; and (4) the nature and responsibility of the functions and duties of the two posts are not dissimilar. Every declaration made under Rule 9(1) of the Rules carries with it a presumption that the Government has made such declaration in the proper exercise of its powers duly bestowing proper discretion. The burden of establishing contra is always on the officer, who complains that he is being sent to a non-cadre post with a view to displace him from a cadre post which he is occupying. In his representation dated 22.12.1999 the petitioner alleged that he completed the Diploma in wild life management in 1993-94 whereafter he was posted as Deputy Chief Conservator, Wild Life, Hyderabad which is an Ex-cadre post with an office without staff and without well defined responsibility; he is again posted to a non- cadre post in the middle of the academic session when the Conservator himself had recommended for the abolition of the said post. In the original application before the learned Tribunal, the petitioner made the following allegations. … that there is no staff, there is no staff, there is no office and the post is meant for State level junior officers and practically the post is a defunct post. It is only to demote his status and responsibilities he was specifically and intentionally posted with all mala fide intention and the proposals were submitted in this regard by the respondent Nos.4 and 5 to the Government, therefore, the applicant requested that unless he was issued a specific posting orders commensurate to his status, he may be permitted to continue in the present quarter, since his son is now facing 7th class common examinations and he is going to write the common examination in the month of March, 2000. In the counter affidavit of the respondents 2 to 4 while asserting that DFO (FS), Nalgonda is equivalent in status and responsibility to the cadre post of Deputy Conservator of Forest born on the IFS cadre strength, it is stated that the said post is an independent post and have important functions attached to it. For ready reference para 28 of the counter is extracted hereunder. In reply to Para 4(c), it is submitted that, it is a fact that the Government have fixed cadre strength for the I.F.S. The post of Divisional Forest Officer, Flying Squad, Nalgonda was not in the cadre strength notified for I.F.S. The State Government have powers under Rule 9 of I.F.S. (Pay) Rules to the post of a member of the Service to a post other than a post declared as a cadre post by declaring such post as equivalent in status and responsibilities to the cadre post, based on the work load, vacancy position and administrative exigencies. Any cadre officer can be posted in such post. In fact, the posts of Sub- Divisional Forest Officers are meant for junior Officers under the control of Divisional Forest Officers. The post of Divisional Forest Officer, Flying Squad is an independent post under the control of Conservator of Forests. Prior to the posting of the petitioner as Divisional Forest Officer, Flying Squad, Nalgonda, Sri K.Saradhi, I.F.S., who was in the Junior Administrative Grade was working in the said post. Consequent on the demise of Sri K.Saradhi, I.F.S., the petitioner who is in Junior Administrative Grade was posted in the vacancy. The post of Divisional Forest Officer, Flying Squad is an independent post under the control of Conservator of Forests and the applicant should not have any grievance on this. In fact the posts of Flying Squads are more important as they have to look after protection, control smuggling and other illicit activities. The averments of the petitioners that the post has no work and is not a post for I.F.S. Officers is not correct. Depending upon the circumstances/needs certain I.F.S. Officers are posted in ex- cadre posts. As mentioned supra, the learned Tribunal held that the petitioner failed to discharge the burden of proof of his allegation and dismissed the O.A. While dismissing the petitioner’s representation dated 22.12.2009, this aspect of the matter has been given due consideration in the following manner. The post which is hitherto held by the Member of Service and the post to which the Member of Service has now been posted are ex-cadre posts and both the posts have been declared under Rule 9 of IFS (Pay) Rules, 1968 as equivalent in status and responsibilities to the cadre post of Deputy Conservator of Forests included in the IFS Cadre Strength of A.P. When the Member of Service had no objection to work in ex-cadre post at Anantapur, there should be no objection to work in ex-cadre post in Nalgonda. There are 18 officers of the rank of Deputy Conservator of Forests cadre who are holding ex-cadre posts including those in Forest Department. In fact one of the officers Sri D.Satyanarayana, IFS, is working as Divisional Forest Officer, Flying Squad, Warangal and another officer Sri G.Prakash, IFS is working as Divisional Forest Officer, Flying Squad, Anantapur. Unless some of the officers are adjusted in ex-cadre posts, the very chance of their promotion to the next grade would become impossible as there would be no cadre vacancies. E.P. Royappa cautioned the Courts to be, “slow to interfere with the declaration made by the Government”. In his separate concurrent opinion, Hon’ble the Chief Justice A.N. Ray observed that, “when posts carried specific functions and responsibility in comparison between the duties and responsibilities of the posts at the apex of different departments are not always possible. The status of the post would also depend on the incumbent, because a brilliant officer can so augment the opportunities of public service in that post that others may cover … … Finding suitable officers for specialized jobs is always a difficult problem for the administration. The cadres do not always overflow with superabundance of specialized experience. The choice, therefore, becomes limited. The Administration has also to take into account the willingness or otherwise of an officer to take up a new job which may not invest him with wide executive powers which he wields, while holding even less important posts”. The learned Tribunal has considered the issue in the light of the law laid down by the Supreme Court and held against the petitioner. We do not find any reason to differ from the Tribunal’s view. The writ petition does not merit any consideration and is, accordingly, dismissed with costs. ________________ (V.V.S. RAO, J) ___________________ (K.G.SHANKAR, J) September , 2011 YS [1] AIR 1974 SC 555