L.MOHAPATRA, J & B.K.MISRA, J. W.P.(C ) NO. 19134 OF 2010 (Decided on 16.9.2011) PRAFULLA KUMAR MISHRA ………Petitioner. .Vrs. UNION OF INDIA & ORS. ………Opp.Parties. CONSTITUTION OF INDIA, 1950 – ART.309, 311. For Petitioner - M/s. : Rabinarayan Nayak, N.K.Sahoo & G.N.Rout. For Opp.Parties - Mr. : Saktidhar Das L.MOHAPATRA,J. The unsuccessful applicant before the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A.No.601 of 2009 has filed this writ application challenging the order dated 23rd September 2010 passed by the Tribunal in the said Original Application. 2. The petitioner, who was applicant before the Tribunal, entered into service as Assistant Conservator of Forests in Group-B cadre on 10.2.1982 after completing two years of training in Forestry and Allied subjects from the State Forest Officers Training College at Coimbatore after being selected through O.P.S.C. during the year 1980- 1982. After serving for about 22 years in Group-B cadre, the petitioner was promoted to O.F.S. Class-I rank vide Notification dated 3.6.2004 having been selected by the Departmental Promotion Committee for such promotion. Further case of the petitioner is that the Selection Committee met on 31.12.2008 for preparation of year-wise list of State Forest Service Officers suitable for promotion to the Indian Forest Service under Regulation-3 of the Indian Forest Service (Appointment by promotion) Regulations, 1966. The Selection Committee had not met for the promotion against the vacancies occurring in 2004, 2005, 2006, 2007 and 2008. When the Selection Committee considered the officers for promotion to I.F.S. in the year 2008, they prepared a year- wise list and in the said select lists, name of the petitioner found place at serial no.4 for the year 2004, serial no.2A for the year 2005 and serial no.0B for the year 2007. The said select lists for the above years were approved by U.P.S.C. on 30th April 2009 but selection of the petitioner was kept as provisional. Selection of the petitioner was kept provisional because of pendency of a disciplinary proceeding against him in the year 2008. According to the petitioner, when the vacancies are considered year-wise, name of the petitioner should have been considered for promotion in the year 2004 his name having been found at serial no.4 in the select list of the year 2004. There was no departmental proceeding pending against the petitioner in the year 2004 and only in June 2005, a proceeding was initiated. Therefore, case of the petitioner in brief is that he having been selected by the Selection Committee for promotion to I.F.S. for the year 2004 when no departmental proceeding was pending against him, he should have been promoted to I.F.S. cadre with effect from the year 2004 and his selection could not have been made provisional because of pendency of a departmental proceeding. It was also contended by the learned counsel for the petitioner that even though the proceeding was initiated in the month of June 2005, the same has not been concluded till today and selection of the petitioner to I.F.S. cadre continues to be provisional. With this background of the case, the petitioner had approached the Tribunal for a direction to the opposite parties to promote him to I.F.S. cadre from the year 2004. The stand of the opposite parties before the Tribunal was that when the Selection Committee considered the case of the petitioner, a departmental proceeding was pending against him and, therefore, even if he was found suitable for promotion in the year 2004, his selection to I.F.S. was kept provisional because of pendency of a departmental proceeding. 3. The Tribunal in the impugned order held that the date on which the Selection Committee convened the meeting and found the petitioner suitable for promotion to I.F.S. cadre, a departmental proceeding was pending against him and, therefore, he cannot claim promotion from the year 2004 merely because in the said year no departmental proceeding was pending against him. With the above finding, the Tribunal having dismissed the Original Application, this writ application has been filed. 4. Shri Nayak, learned counsel appearing for the petitioner submitted that as per the Indian Forest Service (“Appointment by Promotion) Regulations 1966, recruitment has to be made during the year to the substantive vacancies as on the first day of January of the year in the posts available for the members of the State Forest Service under Rule-9 of the Recruitment Rules. The proviso prescribes that where no meeting of the Committee could be held during a year for any reason other than that provided for in the first proviso, as and when the Committee meets again, the select list shall be prepared separately for each year during which the Committee could not meet, as on the 31st December of each year. In terms of the aforesaid proviso, when the Selection Committee convened the meeting in the year 2008, it prepared a select list for the years 2004, 2005, 2006, 2007 and 2008 as the meeting of the Selection Committee could not be held since 2004 till 2008. The petitioner having been found suitable for promotion to I.F.S. cadre in the year 2004 and his name having been included in the select list at serial no.4, he should have been promoted to I.F.S. cadre in the year 2004 as there was no departmental proceeding pending against him during that year. According to Shri Nayak, learned counsel for the appellant, merely because the committee convened its meeting in the year 2008, the petitioner cannot be deprived of promotion in the year 2004 having been found suitable for such promotion and specifically when no departmental proceeding was pending against him in the year 2004. The learned counsel for the State submitted that the Selection Committee having considered the case of the petitioner in the year 2008, even though the year-wise list was prepared on the date the committee found him suitable for promotion, a departmental proceeding was pending against him and, accordingly, his selection was kept provisional. 5. Admittedly, the Selection Committee for promotion to I.F.S. cadre did not meet in the years 2004, 2005, 2006 and 2007. Admittedly seven vacancies were also available to be filled up in the year 2004, five in 2005, one in 2006, one in 2007 and one in 2008. According to the petitioner, though the Selection Committee convened its meeting in the year 2008, in the year-wise select list for the year 2004 name of the petitioner was placed at serial no.4 as against seven vacancies available in that year. Therefore, the petitioner should have been given promotion from the year 2004 as no departmental proceeding was pending against him during that year. 2 6. Learned counsel for the State, on the other hand, submitted that even though vacancies were available in 2004 onwards as stated earlier, the Selection Committee having convened its meeting in the year 2008, even though the year-wise select list was prepared as per the Regulation of the year 1966, a departmental proceeding was pending against the petitioner in the year 2008, and, accordingly his selection was kept provisional. In this connection, reference may be made to a decision of the Hon’ble Supreme Court in the case of Union of India Vrs. K.V. Jankiraman reported in AIR 1991 S.C. 2010. The Hon’ble Supreme Court in the said judgment disposed of several Civil Appeals and Special Leave Petitions. In para-21, 22 and 23 of the judgment, the Court dealt with S.L.P.(Civil) No.2344 of 1990. The facts of that case are that at the relevant time the employee was working as Superintending Engineer since July 1986. In respect of an incident, which took place in the year 1984, and because of deficiencies found in the Stores during the period 1982 to 1985, a proceeding was started against the said employee in February 1988 and in August 1988, punishment was imposed on the employee in the said disciplinary proceedings. On 3rd of June 1988, the DPC met for considering promotion to the Selection Grade and by an order dated 28th July 1988, some juniors to the said employee were given the Selection Grade with retrospective effect from 30th July 1986. The name of the said employee was kept in a sealed cover as a departmental proceeding was pending against him. It was contended before the Court that when the departmental proceeding relates to the period from 1982-1985 and in the year 1986, there was no allegation against the said employee and, therefore when the juniors were given promotion from 30th July, 1986, the said employee could have also been given promotion from the said date. Such a contention was not accepted by the Apex Court with an observation that if such a finding rendered by the Tribunal against which Special Leave had been filed is accepted, it would mean that by giving the employee selection grade with effect from 30th July 1986, he would stand rewarded notwithstanding his misconduct for the earlier period for which disciplinary proceedings were pending against him at the time of the meeting of the D.P.C. Learned counsel for the State also drew attention of the Court to a set of guidelines governing promotion to various grades. The said guidelines have been issued by the Government of India, Ministry of Environment and Forests, New Delhi dated 18th November 2002. Clause-8 of the guideline deals with preparation of year- wise panels where Committee has not met for a number of years. Clause-8.2(c), which is relevant for the purpose of the case, is quoted below. “For the purpose of evaluating the merit of the officers while preparing year wise panels, the scrutiny of the record of the service of the officer should be limited to the records that would have been available had the Committee met at the appropriate time. However, if on the date of such meeting, departmental proceedings against an officer are in progress and the sealed cover procedure is to be followed, such procedure should be observed even if departmental proceedings were not in existence in the year to which the vacancy related. The officer’s name should be kept in the sealed cover till the proceedings are finalized.” 7. On perusal of the aforesaid clause contained in the guidelines, it is clear that the said guidelines are in consonance with the judgment of the Supreme Court in the aforesaid case. Therefore, the opposite parties were justified in keeping the selection of 3 the petitioner to I.F.S. cadre provisional as the date on which the Selection Committee met a departmental proceeding was pending against the petitioner. We therefore find no infirmity in the judgment of the Tribunal impugned before us and, accordingly, dismiss the writ application. 8. However, before parting with the case, we must make an observation that the petitioner is due to retire very soon and a departmental proceeding is pending against him since 2005. Learned counsel for the State, on instructions, submitted that the departmental proceeding is almost completed and is waiting for final orders to be passed by the disciplinary authority. We, therefore direct that the final order in the departmental proceeding be passed by the disciplinary authority as early as possible preferably within a period of one month from today so that depending on the result of the departmental proceeding, fate of the petitioner could be decided. Writ petition dismissed. 4