Statutory rules prevail over government resolutions in determining seniority and service requirements.

JUDGMENT :

SANJAY KISHAN KAUL, J.

1. This is one more unending dispute arising between direct recruits and promotees qua their inter se seniority. The post for which the recruitment took place was the Assistant Conservator of Forest (hereinafter referred to as “ACF”). The method of recruitment for the said post was twofold – nomination (direct appointment) and promotion. Recruits to ACF by promotion assume charge from the day they are promoted to the said post and are not required to undergo two years of ACF training and one year of field training. This is distinct from the persons selected and appointed by nomination where such training is compulsory.

2. The ACF post, in turn, is the feeder cadre to the post of Divisional Forest Officer (hereinafter referred to as “DFO”). As per Rule 5 of the Assistant Conservator of Forests in the Maharashtra Forest Service, Group A (Junior Scale) (Recruitment) Rules, 1998 (hereinafter referred to as the “1998 Rules”), appointment to the post of ACF shall be in the ratio of 50:50 from these two sources.

3. The appellants before us were appointed to the post of ACF through nomination in 2016. They had been recruited in 2014 and went through a training. Respondent nos.4 to 9 were directly promoted to the post of ACF in 2014.

Litigation History:

4. The Maharashtra Public Service Commission, respondent no.3, issued an advertisement on 14.12.2012 to fill up a total of 33 posts of ACF through Maharashtra Forest Service Examination, 2012. The appellants applied for the post, for which the selection list was published on 13.06.2013. However, instead of issuing appointment orders appointing the appellants on probation, respondent no.1 issued a letter dated 19.06.2013 informing the appellants that they will be sent to pre-appointment training. The appellants claimed that their representation to remedy the same remained unanswered.

5. The appellants thus filed an application before the Maharashtra Administrative Tribunal at Mumbai (hereinafter referred to as the “Tribunal”) for declaration that their appointment as ACF be considered from the date of commencement of the training and, that the training period undergone by them be considered as period of service. They also sought a direction for payment of salary as per the pay scale prescribed for the post of ACF by considering the period of training as on probation/duty.

6. The Tribunal, in terms of its order dated 03.02.2016, partly allowed the application of the appellants. It was observed that the recruitment rules for the post of ACF in the Maharashtra Forests Service Class II (hereinafter referred to as “the 1965 Rules”), which were accompaniment to the Government Resolution dated 17.02.1965, inter alia provided that a candidate was eligible for the post of ACF after completing the prescribed course of training. However, these Rules were not framed under Article 309 of the Constitution, and were never finalised.

Moreover, the draft rules had been superseded by the 1998 Rules, as was also provided in the Preamble of 1998 Rules. The respondents’ plea that the candidate would be eligible to be given regular pay scale after successful completion of probation of three years, was turned down while opining that no reason was given for non-applicability of Rule 10 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981 (hereinafter referred to as the “1981 Rules”), whereby the person shall draw minimum of time scale attached to the post to which he is appointed. It was held that the appellants will be entitled to regular pay after successful completion of probation, retrospectively from the date of appointment, after deducting the amounts of ‘stipend’ already paid to them. More significantly, it was declared that the appellants will be entitled for appointment as ACF from the commencement of their training on 01.02.2014.

7. The review application filed by respondent no.1 before the Tribunal was dismissed on 16.09.2016 observing that whether t