IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CASE NO.: CWP No.3315 CAT of 2007 DATE OF DECISION : 04 March,2009 D.K. Sinha and others .......Petitioners versus Ravinder Singh Lamba & others ......RESPONDENTS CORAM : HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MS. JUSTICE NIRMALJIT KAUR. PRESENT: Mr. Gurminder Singh, Advocate for the petitioners. Mr. Rajiv Atma Ram, Sr. Advocate with Mr. Birender N.B. Sharma, Advocate for respondent No.1. Mr. Gurpreet Singh, Advocate for respondent No.2. Mr. G.S. Wasu, A.A.G., Haryana for the State. NIRMALJIT KAUR, J. This order shall dispose of four writ petitions bearing CWP Nos.3315-CAT of 2007, 3246-CAT of 2007, 1026-CAT of 2007 and 1101-CAT of 2007, since the facts and legal issues arising therein are similar. However, for the sake of convenience, the facts are being taken from C.W.P. No.3315-CAT of 2007. Brief facts of this case are that respondent No.1 was appointed to the Haryana Forest Service Class-II w.e.f. 03-10-1980. He stood confirmed in the State Forest Service w.e.f. 29-03-1982. On completion of CWP No.3315 CAT of 2007 -2- 8 years of service in October, 1988, the respondent became eligible to the post of IFS by promotion in terms of Regulation 5(2) of the Indian Forest Service by way of promotion in accordance with 1966 Regulations. In the year 1989, the sanctioned strength of IFS Cadre of Haryana State was 41. This strength was increased by 71 vide notification dated 06-09-1990. Out of these 71 posts, 16 posts were required to be filled up by way of promotion from amongst the State Forest Service Officers. However, at that time i.e. in September, 1990, only 8 posts on the IFS were occupied by the promotees from the State Forest Service and remaining 8 posts meant for promotees were lying vacant. The respondent delayed holding of annual meeting of Select Committee, although, the meeting of the Select Committee for appointment to IFS by promotion for the year 1990 was to be called before 31-03-1990, no meeting was held for preparing the panels of 1990 or 1991. The meeting of the Select Committee was held on 31-03-1991 but the same was deferred on account of the interim order of this Court. The respondent was considered in the meeting, held on 31-03-1993 and finally in the Review Select Committee which was held on 03-01-1994. The recommendations of the meeting of Review Select Committee were approved on 01-02-1994 and the respondent was appointed to IFS alongwith other selected members vide notification dated 17-03-1994. The grievance of the respondent, in short, was that if the meeting was held in the year 1990, he would have got 1986 as the year of allotment. It was claimed that due to non-calling of the meeting of the Select Committee in violation of the 1966 Regulations, 10 officers directly CWP No.3315 CAT of 2007 -3- recruited to IFS in the years 1987 and 1988 were given senior time scale after completion of four years and thus placing them senior to the respondent. The respondent made a representation but the same was rejected. Aggrieved, the respondent filed O.A before the Central Administrative Tribunal. The main issues in the case which arise for the consideration of the Central Administrative Tribunal as also enumerated in the order, were as follows :- (i) Whether the applicant could challenge non-holding of Select Committee Meetings in the years 1990, 1991, 1992 and 1993 by filing an O.A in 1996? (ii)Whether it was mandatory to hold the meeting of the Select Committee every year, and, if they were not so held, accord the seniority to the promotees w.e.f. the date when the vacancies were to be filled up by the recommendations of the Select Committee? However, the said O.A was dismissed vide order dated 18-10-2001. The respondents, thereafter, filed writ petition in this Court which was disposed of vide order dated 14-12-2005 with the following observations :- “ Consequently, this writ petition is allowed. Order of the Central Administrative Tribunal in OA No.172/HR/1996 dated 18-10-2001 is hereby quashed and set aside. The matter is remanded back to the Tribunal for taking a fresh decision after taking into consideration the law laid down by the Supreme Court CWP No.3315 CAT of 2007 -4- as well as the decision rendered in the earlier O.A. The petitioner is at liberty to bring to the notice of the Tribunal the judgment of the Supreme Court rendered in CA 17173 of 1999 dated 03-12-1999 which has been relied upon by the petitioner in support of the submission made in the writ petition.” On remand, the matter was argued at length and finally vide a detailed judgment dated 16-05-2006, the O.A was allowed with the following directions :- “ In view of the discussion above, we have no hesitation in recording that even though the meeting could not be held in the years 1990, 1991 and 1992 and the panel was prepared in the year 1993 and review panel in the year 1994, this shall have to be considered as panel of selection relating to the year 1990. Notwithstanding the notification published by respondents appointing the applicant on that panel in the subsequent year, appointments of all those persons on that panel, including the applicant, shall have to be treated as a panel for vacancies of 1990 and thus, panel of recruitment year of 1990. Respondents may take steps and pass necessary orders as per the law laid down by the Hon'ble Supreme Court in the above mentioned three cases i.e. Syed Khalid Rizvi, H.R. Kasturi Rangan and Vipin Chandra Hira Lal Shah. We give a declaration in favour of the applicant and the persons placed on the panel, who are still in service, in which his name was included, to be a panel for the year 1990. Needed to mentioned that he is held entitled to the change of year of his allocation in which shall be now worked out by the respondents on the basis of his CWP No.3315 CAT of 2007 -5- appointment being for the panel of 1990 for which the panel declared by the respondents as per Review DPC shall now be treated as panel of 1990. Consequently, Annexure A-2 is hereby quashed completely, whereas Annexure A-1 is quashed to the extent it allots 1989 as the year of allotment to the applicant, which at all be worked out and modified as per our directions above. Respondents shall take necessary steps and pass necessary orders for complying with the above directions and findings within a period of three months from the date of receipt of copy of this order. There is no order as to costs.” The review petition was filed which was also dismissed vide order dated 17-10-2006. Aggrieved with the order of the Central Administrative Tribunal, the petitioners, who are direct recruits, have challenged the same through the present writ petition. Mr. Gurminder Singh, learned counsel for the petitioners, through his first argument submitted that the Tribunal while exercising its judicial functions has exceeded its jurisdictions by issuing a blanket direction for considering the select list framed in the year 1993 as reviewed in the year 1994 to be the select list pertaining to the year 1990. The Tribunal has lost sight of the fact that in the event of the list to be prepared for the year 1990 the entire exercise would have to be carried out within the zone of consideration and the record being taken into consideration for the CWP No.3315 CAT of 2007 -6- number of posts available upto 01-01-1990. No such exercise having been carried out, the Tribunal was wholly without jurisdiction to pass a judicial orders directing the imposition of the 1993 list (which had been prepared on the basis of the record of the year 1992-1993) as the list of the year 1990. Mr. Rajiv Atma Ram, learned counsel for respondent No.1 asserted that there is no averment in the writ petition that the zone of consideration has changed from 1990 to 1993. In fact, the same does not change as there were no vacancies for 1991 and 1992 and all the vacancies arose only in the year 1990. It was further stated that the eligible officers who were selected by the Selection Committee for 8 vacancies arising in the year 1990 were held in the year 1992-93 and reviewed in the year 1993-94. The officers from the year 1990-93 who were selected against 8 vacancies of the year 1990 were same. Meaning thereby, no new officer was included from the year 1990-93. No officer had lost the eligible criteria from the year 1990-93. Thus, the directions of the Tribunal that the select list framed in the year 1993 and reviewed in the year 1993-94 pertaining to the year 1990 does not make any difference as the officers who were included in the select list 1992-93 were also eligible in the year 1990. Moreover, out of the ten officers, seven have already retired and only the answering respondent and two more officers senior to the answering respondent were in service. Learned counsel for the parties were heard at length. Till 28-11-1991 the induction to IFS by promotion was CWP No.3315 CAT of 2007 -7- governed under IFS (Appointment by Promotion) Regulations, 1966 and rule 5(1) of the same provides that :- “ Each Committee shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of the State Forest Service as are held by them to be suitable for promotion to the Service. The number of members of the State Forest Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of twelve months, commencing from the date of preparation of the list. In the posts available for them under rule 9 of the Recruitment Rules, or 5 per cent of the senior posts shown against items 1 and 2 of the cadre schedule of each State or group of States, whichever is greater.” It is apparent that the zone of consideration has been clearly defined in the above said rule which is 2 candidates for one vacancy. This formula has remained effective up to 28-11-1991, when amendment was done in the IFS (Appointment by Promotion) Regulations, 1966 which changed the consideration zone as under :- “ Each committee shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of the State Forest Service, as are held by them to be suitable for promotion to the Service. The number of members of the State Forest Service to be included in the list shall be calculated as the number of substantive vacancies anticipated in the course of the period of 12 CWP No.3315 CAT of 2007 -8- months, commencing from the date of preparation of the list, in the posts available for them under rule 9 of the Recruitment Rules plus twenty percent of such number or two, whichever is greater.” On the basis of above amendment, it is clear that with the amended regulation, the zone of consideration gets changed. It is evident therefore that clause (1) of Regulation 5 leads to the inevitable conclusion that the Select Committee shall meet at intervals not exceeding one year and prepare a list of such members of the State Forest Service who are suitable for promotion to the Service. The said meeting of the Selection Committee every year was intended to be mandatory. This issue, in fact, stands settled in the case of Union of India and others vs. Vipinchandra Hiralal Shah 1996(6) Supreme Court Cases 721, as follows :- “ If clause (1) is read with the other provisions in Regulation 5 referred to above the inference is inevitable that the requirement in clause (1) of Regulation 5 that the Selection Committee shall meet at intervals not exceeding one year and prepare a list of members of the State Civil Service who are suitable for promotion in the Service was intended to be mandatory in nature because the eligibility of the persons to be considered both in the matter of length of service and age under clauses (2) and (3) is with reference to the first date of January of the year in which the Selection Committee meets and the number of members of the State Civil Service to be considered for selection is also linked with the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of preparation of the list. We are, therefore, of the view that the requirement CWP No.3315 CAT of 2007 -9- prescribed in sub-regulation (1) of Regulation 5 regarding the Committee meeting at intervals not exceeding one year and preparing a list of such members of the State Civil Service who are suitable for promotion to the Service was a mandatory requirement which had to be followed. The earlier decisions of this Court also lend support to this view.” It is, therefore, a settled proposition of law. There can be no dispute to the fact that the Selection Committee must meet every year unless there is a good reason for not doing so. The question arises as to what would be the situation, in case, the Selection Committee is not able to meet during a particular year. This issue was also settled by Union of India and others vs. Vipinchandra Hiralal Shah's case (supra) in the following terms :- “ It must, therefore, be held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst the State Civil Service officers who fulfil the conditions regarding eligibility on the first day of January of the year in which the Committee meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service officers CWP No.3315 CAT of 2007 -10- who were eligible and fell within the zone of consideration for selection in that year.” In the present case, the Selection Committee did not meet during the year 1990 or in the subsequent year of 1991. The Selection Committee finally met on 31-03-1993 but the same could not proceed on account of ad-interim order passed by this Court. Thereafter, the meeting of the Review Selection Committee took place on 31-01-1994. There was, thus, a failure to comply with the mandatory requirement of Regulation 5. Thus, we find no difficulty in holding to this extent that when the Selection Committee met in the year 1993, it should have prepared a separate list for each year i.e. of 1990, 1991 and 1992, keeping in view the number of vacancies in that year after considering the names of officers who were eligible within the zone of consideration for that particular year. After our observations made above, we are now further called upon to decide the various other disputes, as raised by learned counsel for the petitioners, arising out in the facts of the present case. It was first argued that the anticipated substantive vacancy for the purpose was only one as on 01-01-1990. Creation of 7 new posts of IFS on 06-09-1990 cannot be treated as `anticipated substantive vacancies' in terms of Section 5 of the Act for the purpose of preparing select list for 1990 and cannot be considered as anticipated vacancies for 1990, process of which should have started on 01-01-1990 and completed by July 1990. Mr. Rajiv Atma Ram, learned counsel for respondent No.1, on the other hand, contested the claim of the petitioners and submitted that CWP No.3315 CAT of 2007 -11- the Regulations in force in 1990 do not contain any stipulation of vacancies of being anticipated or existed on the particular date i.e. 01-01-1990. The prevailing regulations talk of anticipated vacancies arising in the year commencing from the date of meeting held for preparation of Select list and does not mean vacancies to exist or anticipated as on 1st January of any particular year. Having heard, we find that in the present case, there was one vacancy in the cadre of promotion which was available on 01-01-1990. However, seven new posts were created on 06-09-1990 by way of increase in cadre strength to be filled up by promotion. A perusal of Rule 5(1) reads “the number of members of the State Forest Service included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of 12 months commencing from the date of preparation of the list. The interpretation of the `substantive vacancies anticipated in the course of the period of 12 months', has been defined by the Hon'ble Supreme Court in the case of Union of India vs. Dr. M.G. Dighe and others 1991(4) Supreme Court Cases 551. In that case, the list was prepared by the Selection Committee on December 1998. The Selection Committee considered the cases of only 30 Officers. The Union Public Service Commission, therefore, returned its recommendation and asked the Selection Committee to consider the cases of 12 more Officers. Thus, the Committee was required to convene a fresh meeting on March 16, 1989. It was held that March 16, 1989 is the relevant date which should be considered the date from when the vacancies anticipated in the course of period of 12 months thereafter should be considered. Thus, it was held that the span of 12 months would begin from March 16, 1989 and end in CWP No.3315 CAT of 2007 -12- March 15, 1990. While interpreting rule, the word commencing from the date of the preparation of the list, the Hon'ble Supreme Court in the case of Union of India vs. Dr. M.G. Dighe and others case (supra) held as follows :- “ We are not concerned with the rest of the provision of the said regulation for the purposes of this point. The wording of the regulation is very clear. It says “commencing from the date of the preparation of the list”. In the present case, admittedly the list which was prepared by the Selection Committee on December 19, 1988 was not according to Regulation 5(1) read with Regulation 5(2). Regulation 5(2) requires that the cases of members of the State Civil Service which are required to be considered for preparation of the select list have to be in number equal to three times the number of officers to be placed on the select list. As pointed out earlier, the Selection Committee had on the basis of its estimate of vacancies on December 19, 1988 considered the cases of only 30 officers when it was required to consider the cases of 42 officers. It is for this reason that the Union Public Service Commission had returned its recommendation and asked the Selection Committee to consider the cases of 12 more officers. Hence the preparation of the select list was not complete in December 1988 and the Committee was required to convene a fresh meeting on March 16, 1989 on which date alone it can be said to have prepared the select list as required under Regulation 5(1). Since the select list, as required by Regulation 5(1), was for the first time prepared on March 16, 1989, the period of 12 months under Regulation 5(1) had to be counted from that date. The Tribunal had, therefore, rightly held that the span of 12 months would begin from March 16, 1989 and end on March 15, 1990. CWP No.3315 CAT of 2007 -13- There is further no dispute that during the period of 12 months from March 16, 1989 to March 15, 1990, the estimated vacancies were 11 and, therefore, the Tribunal's direction to prepare a select list of 22 officers by considering the cases in all of 66 offices and, therefore, extending the zone to the 84th officer in the seniority list according to the order of seniority (18 officers out of 66 being ineligible), is both proper and valid.” Learned counsel for the petitioners objected to the same on the ground that the said case pertains to I.A.S and not to IFS. However, we do not agree with this submission as the relevant portion of Regulation 5(1) of the IAS (Appointment by Promotion) Regulations, 1955 is identical to the IFS (Appointment by Promotion) Regulations, 1966. The interpretation having been held as above by the Hon'ble Supreme Court, the same needs to be tested in the facts of the present case before arriving at the conclusion as to whether the seven vacancies arisen on September 1990 are to be included in the year 1990 or in the year 1991. On 1990, the sanctioned strength of IFS Cadre of Haryana State was 41. As per the cadre notification, 9 senior duty posts were to be filled up by way of promotion. Seven new posts were created on 06-09-1990 by way of IFS Cadre revision for Haryana. One post already existed as on 01-01-1990. Thus, eight vacancies existed when the Select Committee finally met on 31-03-1993 due to inter-se seniority. The Select Committee did not meet in the year 1990. The controversy was settled on 26-08-1992 and the Select Committee was held on 31-03-1993. The Review Select Committee was held on 01-02-1994. Thus, no meeting having been held in accordance with Rule 5, the select list as CWP No.3315 CAT of 2007 -14- required by Rule 5 was for the first time prepared on 31-03-1993.The period of 12 months under Regulation are, therefore, to be counted from that date i.e. 31-03-1993. Thus, in this case, as well, the span of 12 months would begin from 31-03-1993. It is evident from the above facts that on this date i.e. 31-03-1993, 7 additional vacancies which arose on September 1990 were already available/existed for that particular year i.e. 1990 and should therefore be counted towards that year. We have, therefore, no hesitation in concluding that as per the interpretation of the Rule above, there were eight vacancies available for the year 1990. Learned counsel for the petitioners raised yet another issue and argued that under rule 5(2) of the IFS (Appointment by Promotion) Regulations, 1966, the committee could not consider the case of a member of the State Forest Service unless on the First of January of the year in which it meets, he is confirmed in the State Forest Service and has completed not less than eight years of continuous service (whether officiating or substantive) in post(s) included in the State Forest Service. According to the learned counsel, Mr. Ravinder Singh Lamba, respondent No.1 was confirmed vide order dated 26-08-1992. Therefore he was not eligible for consideration in the year 1990 and 1991. We are unable to agree with this argument of the learned counsel for the petitioner, in view of the fact that as per the proviso to Rule 12 of the Haryana Forest Service Group-B Rule, the probation of an Officer could not be excluded beyond the maximum period of three years. The said provision is reproduced below :- “12(1) Persons appointed to any post in the Service shall remain on probation for a period of two years, CWP No.3315 CAT of 2007 -15- if appointed by direct recruitment and one year, if appointed otherwise : XXX XXX XXX XXX (3) On the completion of the period of probation of a person, the appointing authority may- XXX XXX XXX XXX (i) confirm such person from the date of