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Gujarat High Court
Judgename :S.D.Shah
S.M.DUBEY - Appellant
Versus
STATE - Respondent
C.R.A. 896 of 1991
Decided On : 11/23/1992
Based on the five factors which are stated clearly in the preface of the resolution the Government has decided to treat the period of training of direct recruits in the cadre of Asstt. Conservator of Forests as period in service for the purpose of seniority, and in court opinion, the decision of the Government can not be faulted or struck down on the ground that the aforesaid factors are extraneous or non-germane to issue. It also can not be said that the issuance of such resolution is malafide or suffers from nonapplication of mind. It shall have to be accepted that the Govt. has taken into consideration all the relevant and germane factors and has after due consideration of such factors taken a conscious decision that the period of training of direct recruits in the cadre of Asstt. Conservator of Forests shall have to considered for determining their seniority.
[Para 18]
Service & Employment - Seniority - Government resolution dated 31.1.92 - Challenge on ground that Government has considered and accepted letter dated 17.11.1981 addressed by President of Forest Research Institute & Colleges Dehradun to Secretary Forest Department Govt. of India - Held, letter has its own significance and resolution can not be struck down if the Govt. had considered and accepted the said letter - It can not be said to be a factor irrelvant or nongermane to the issue.
From the gist of the letter, it can be said that a strong recommendation was made in favour of trained to treat the period spent by the trainee on training as part and parcel of his service and also to give due weightage to such training period for the purpose of seniority. How that could be achieved is also suggested, i.e. by first making order of appointment and thereafter sending the persons for training, or secondly, by giving due weightage to the period of training for the purpose of seniority. This letter has its own significance as it is addressed by the President of Forest Research Institute & Colleges to the Secretary, Forest Deptt, Govt. of India, and secondly because such recommendation, if considered and accepted, can not be said to be a factor irrelevant or nongermane to the issue.
[Para 21]
Service & Employment - Seniority - Provisional seniority list dated 5-8-87 & final seniority list of Asst. Conservators of Forests dated 27.10.88 - Admissibility for promotion - Names of direct recruits (Petitioners in the case) donot appear and the reasons of their exclusion not given - Both the lists are neither exhaustive nor complete and can not provide foundation for preparation of select list for the cadre of Deputy Conservator of forest.
Once a direct recruit is appointed in the cadre of Asstt. Conservator of Forests, his position in the seniority list must be reflected in the seniority list. However, for the reasons which are not very clear the position of direct recruits like the petitioners is not at all reflected in the first provisional seniority list, dated August 5, 1987 as well as in the final seniority list of cadre of Asstt. Conservators of Forests dated October 27, 1980 and to that extent the aforesaid lists can not be said to be exhaustive and complete. Court does not express any opinion about their legality and validity, but one glaring fact stares in the mind of this court and that fact is that both those lists are the lists wherefrom direct recruits like the petitioners are atleast excluded. Therefore, the aforesaid two seniority lists, provisional as well as final, prepared by the respondents for the cadre of Asstt. Conservators of Forests can not provide foundation or basis for preparation of select-list for the cadre of Deputy Conservators of Forests inasmuch as from the said seniority list number of direct recruits are excluded.
[Para 30]
Assistant Conservator of Forest (Gujarat Forest Service cl. 11) Recruitment Rules, 1981 - Rules 6 & 8 - Training & appointment - Harmonious construction - It is too much to read in Rule 8 a principle for fixing seniority of promotees and direct recruits interse - If word posting is substituted with the word appointed in Rule 8, it would fit in for harmonious construction of both Rules giving clear meaning.
Rule 8 of the Recruitment Rules for Assistant Conservators of Forests does not prescribe any rule of seniority, but it only prescribes the requirement of giving appointment/posting to a direct recruit on his completion of successful training. This Rule does not prescribe that for all purposes the direct recruits are to be treated as having been born in the cadre only when they have satisfactorily completed the training. The primary object of enacting the Recruitment Rules of Assistant Conservators of Forests was to see as to how appointments are to be made in the cadre of Assistant Conservtors of Forests. Ordinarily, therefore, such Rule can not be construed as prescribing any rule of seniority or any rule prescribing any criterion of seniority between the direct recruit and the promotee.
There is no room for doubt that the Rule 8 of the said Rules can not be construed as rule prescribing the criterion for fixing seniority. In fact, the Rule 8 simply refers to the direct recruits and it does not refer to the promotees. Therefore, to read a principle of seniority in rule 8 for fixing seniority of promotees and direct recruits, interse, is to read too much in the Rule, and therefore, I hold that the Rule 8 of the Recruitment Rules of Assistant Conservators of Forests can not be read as rule prescribing principle of seniority. In fact, Rule 8 can be properly construed if the word "posting" is substituted with the word "appointed". In fact, Rule 8 contemplates that "If a direct recruit who has been sent for training is to be given posting in the cadre of Assistant Conservator of Forests on his successful completion of training". If the Rule is so read, it would fit in or it could be harmoniously construed with rule 6 and other Rules.
[Para 35]
Court does not find any substance in the submission that Rule 8 in fact prescribes principle of seniority. Court holds that consistent with Rule 6 and other factors stated the training rendered by duly selected direct recruits for a period of two years after selection should be treated as part and parcel of service even for the purpose of determining the seniority. Such an interpretation which Court is inclined to give to Rule 8 leaves no scope for discrepancy between promotees and direct recruits who are selected at the same selection for the post of Assistant Conservators of Foreste.
[Para 37]
Assistant Conservator of Forest (Gujarat Forest Service Cl.11) Recruitment Rule, 1981 - Rule 6 - Requirement to under go a course of Forestry for 2 years - Nature Vis-a-vis promotee - Period of 2 years of training is part & parcel of service - It is not pre-service training but in-service training and it can not be ignored therefore even for the purpose of seniority.
It would be better to appoint directly selected candidate to the State Forest Services before they are sent for training so that the period of their training is automatically treated as part and parcel of service since such trainees are "in-service trainees". However, same result can be achieved by the State Government by treating such trainees on par with promotees to the post of Assistant Conservators of Forests by giving to said trainees same time scale of pay and admissible allowances which is available to the candidate in the cadre of Assistant Conservator of Forests, and secondly by subjecting such trainees to the disciplinary control of the appointing authority.
What can be directly done is sought to be done by this State indirectly and such an exercise is not impermissible and unconstitutional.
[Paras 36 & 37]
Court is of the opinion that the period spent at training can not be altogether excluded while computing the seniority of directly recruited candidate, vis-a-vis promotee. In fact, much of the controversy is set at rest by the Union Government in Indian Forest Services and by a few of the State Governments by making the period of training as "in-service training" by first giving order of appointment to the directly recruited candidate, and thereafter, sending them for training. Absence of that modality. in this case, should not, in my opinion, make any difference and from other factors enumerated hereinabove, it becomes clear that the period of training of such directly selected candidate shall have to be treated as part and parcel of their service and it can not be ignored even for the purpose of seniority.
[Para 38]
Service & Employment - Seniority - First provisional seniority list dated 5.8.87 and final list dated 27.10.88 & again provisional list dated 8.1.90 - Null & Void discriminatory and violative of Arts. 14 & 16 - Such lists can be said to have created any vested or accrued rights in favour of promotees - Govt. by its resolution 31.1.92 first time provided a principle of fixation of Seniority of direct recruits - Resolution could not be held to have affected any vested or accrued rights of promotees.
There never existed fixed principle of seniority for the cadre of Assistant Conservators of Forest. In the absence of any criterion for fixing of seniority, if the seniority was fixed by the department by two provisional seniority lists or final seniority lists, it can not be said to have created any vested or accrued right in favour of promotees, especially, because I have also found that preparation of said seniority list was unconstitutional and null and void. Such seniority list could not confer any right on persons whose names are included in the seniority list. In fact two out of three seniority lists did not include the names of direct recruits of the batch of 1980 presumably because on the date of preparation of list the direct recruits were not eligible for being promoted to the post of Deputy Conservators of Forests. The seniority list which excludes a large number of employees of the cadre is non-est and unconstitutional and such lists can not be said to create any right in favour of promotees. It may be mentioned that it was in such a fluid state that the Government, for the first time, decided that the period of training in the case of direct recruits shall have to be included for the purpose of determining their seniority in the cadre, and if such decision is taken it can not be said that it affects any vested or accrued right of the promotees. It is pertinent to note that so far as promotees are concerned their seniority in the cadre of Assistant Conservators of Forests was determined and continued to be determined by reference to the date of their appointment. Vis-a- vis the promotees, the principle of seniority is thus not altered. With respect to the direct recruits, there was no principle of fixation of seniority, and if the Government by its resolution, for the first time, provides a principle of fixation of seniority of direct recruits, it can not be said that it would affect the vested or accrued right of the promotees.
[Para 60]
( 1 ) THESE two petitions filed under Article 226 of the Constitution of India bring to the surface an unhealthy dispute between the direct recruits in the cadre of Assistant Conservators of Forest (Gujarat Forest Service Cl. II) and the promotees of that very cadre inter se claiming seniority and preferential promotion to each other to the post of Deputy Conservator of Forest. As usual the State Government has unfortunately contributed in confusing and confounding the issue by usual administrative lethargy and by half-hearted decisions without having overall comprehensive view of the matter. The controversy between the two warring groups ought to have been settled by earlier comprehensive solution to the problem. Since the controversy is now brought to this court by promotees by instituting Special C. A. No. 896/91 and by the direct recruits by instituting Special C. A. No. 1447/91 the same is now decided by this common judgment.
( 2 ) THE petitioners in Special C. A. No. 896/91 were on the relevant date working as Assistant Conservators of Forest since 20/10/1980 and 7/01/1980 respectively. Originally they were appointed to the post of Range Forest Officers and the said recruitment was under recruitment rules known as RANGERS (SUBORDINATE SERVICE) RECRUITMENT RULES 1969 It is their case that as required under the requirement rules they had undergone the training for Rangers course at the recognised institute for a period of two years. After successful completion for their training they were duly posted as Range Forest Officers and according to them their seniority in the said cadre was reckoned from the date of their actual posting in the said cadre after completion of two years training. In this petition (i) R. S. Ajara (ii) R. B. Zala (iii) B. A. Pandya and (iv) D. P. Tipra are impleaded as party respondents on their having applied for being impleaded as party respondents and these respondents represent class of direct recruit to the post of Assistant Conservator of Forest. It is the case of the petitioners that a provisional seniority list for the cadre of Asst. Conservator of Forest-Cl. II as on Ist January 1987 was prepared and published on 5/08/1987 and in said list the names of the petitioners appeared at Sl. Nos. 68 and 67 respectively. It is not in dispute before this Court that the names of respondent Nos. 3 to 7 did not find place in the aforesaid provisional seniority list showing seniority in the cadre of Asstt. Conservator of Forest as on Ist January 1987. It appears that a final seniority list of the cadre of Asstt. Conservator of Forest was published in Govt. Circular dated 2 7/10/1990 showing the seniority of Asstt. Conservator of Forest as on Ist January 1987 and in such final seniority list also the names of respondent Nos. 3 to 7 do not find place while names of petitioner Nos. 1 and 2 appear at Sl. Nos. 70 and 63 respectively. It may be stated that the aforesaid final seniority list of the cadre of Asstt. Conservator of Forest is the subject-matter of challenge before this Court in Spl. C. A. Nos. 3049/82 5353 2124 2214 and 877/88 which are pending before this Court for final hearing.
( 3 ) IT is the case of the promotees that based on the final seniority list which was published by the aforesaid Government circular a select list for appointment to the promotional posts of Deputy Conservator of Forest was prepared by the Government in October 1989. It is their case that recruitment to the cadre of Deputy Conservator of Forestis governed by the Statutory rules known as DEPUTY CONSERVATOR OF FORESTS (GUJARAT FOREST SERVICE) RECRUITMENT RULES 1987 The promotees therefore contend before this Court that in view of the fact that a select list to fill in the vacancies in the cadre of Deputy Conservator of Forests was already prepared the same was submitted to Gujarat Public Service Commission for its approval on 26/06/1990 and the same was approved by the Gujarat Public Service Commission on 19/07
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