1996 Supreme(Bom) 636

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
T.K. Chandrashekhara Das R.M.S. Khandeparkar, JJ.
Shri O. Venkat Raman Reddy,
Asst. Conservator of Forest ....Petitioner.
Versus
The Government of Goa, through
the Chief Secretary and others... Respondents.
Writ Petition No. 10 of 1992,decided on 11-7-1996.
Advocates appeared :
A.N.S. Nadkarni, for the petitioner.
G.U. Bhobe, Government, for respondent No. 1.
S.G. Dessai, S.A. with Padiyar, for respondent No. 2.
J.E. Coelho Pereira, S.A. with J. Godinho, for respondent No. 3.

Headnote:Articles 16 and 309-See Goa, Daman and Diu Government Assistant Conservator of Forests (Sub-Divisional Forest Officer) Gazetted Posts Recruitment Rules, 1966, Rules 7, 8 and 9 (As amended in 1982).

       Rules 7 and 9 (as amended in 1982)-Constitution of India, Articles 16 and 309-Rules to count service-Refusal to count training period for old recruits-Recruitment under old rules governed by old rules contentions-Held-No saving clause for old rules in new rules treatment for counting training period under new rules-Proper.-The petitioner is entitled to count for the said period of training which he spent after coming into force of the new rules for the purpose of seniority in the post of Assistant Conservator of Forests. Therefore, the intention of the Government is crystal clear from the correspondence and also from the amended rules that except for salary that the braining period spent by the candidates should be treated as in service. In these circumstances, we are of the view that it would not be legitimate to hold that the petitioner is not entitled to count his training period, which he spent after coming into force of the new rules from reckoning to his seniority. That the petitioner is not entitled for difference of salary for the period he was sent for training in the Forest College,

       Rule 8-Seniority-COuntlng to training period-Recruitment under old Rules-Part of training period spent after coming Into force of new Rules where under training period was to be treated as In service-Held. training period spent after coming Into force of new Rules to be counted for purpose of seniority.-As pointed out by Advocate for the petitioner, Shri Nadkarni that in the present case, there were no saving clauses, when the new Rules came into force, He pointed out that the old Rules were entirely superseded and the new Rules were enacted, In such circumstances, if the amended Rules given an advantage to the existing candidate, who is governed by the Rules from 26,8,1982, cannot be denied. The offer of appointment Exhibit B clearly stipulates that the conditions of service of the employees will be governed by the Rules from time to time. The Supreme Court in P Mahendran v. State of Karnataka, (supra) says that whatever advantage of rights accrued by a candidate under the old Rules, cannot be lost or neglected by amended Rules. Moreover, 3imilar legal position arose in the case of Prafulla Kumar Swain v. Prakash Chandra Mishra, (supra). In that case, it has been held that in view of the express provision of the old Rules, the old Rules may regulate the seniority of Shri Prakash Mishra even after the rules come into force. The amended rules expressly provided that whatever liability has accrued there, will continue. We see that this principle, however, cannot be straight away applied to the present case. In the present case, the petitioner did not seek that his seniority should be counted from the date on which he has deputed for training. His only limited request is that the training period which is spent after coming into force of the Rules, which say that the training period will be counted for the purpose of seniority has to be counted. No statutory rule prohibits from giving that advantage go the petitioner,. since as pointed out earlier, the old rules have been completely washed away w.e.f. 26.8.1982 and the new Rules stipulate clearly and in explicit terms that no Rules, particularly Rule 8, say that these Rules and the Notification will come into effect from the date of Notification and will relate to appointment made to various posts on or after this date. Therefore, the petitioner, on the complete repeal of the old Rules, can be treated only appointee under the new Rules. As pointed out in the case of Prafulla Kumar Swain v. Prakash Chandra Misra, (supra) the recruitments and the appointments are different and the Memorandum evidence by Exhibit B can be treated only as recruitments, The appointment is made only thereafter by Exhibit E dated 9.1.1984. The petitioner is undoubtedly an appointee under the new Rules and new Rules provide that the training period will be counted for service Mr. S.G. Desai. Senior Advocate appearing for the respondent No. 2 submits that if Clause (6) of the General Clauses applies, the petitioner will not get the benefit of the new Rules. All his service conditions will be governed by the old Rules. His appointment is complete and become final under the old Rules and the new Rules confer no advantage or impose no liability on him. This argument of Mr. Desai would have been relevant if the petitioner seeks to treat the entire training period as service. He seeks seniority only from the date when the new rules came into force i.e. 26.8.1982. He is prepared to exclude the entire period of his training spent at the time when the old rules were in force. Moreover his appointment was only after the implementation of the new Rules. Held that the petitioner is entitled to count for the said period of training which he spent after coming into force of the new rules for the purpose of seniority in the post of Asst. Conservator of forests.