1994 Supreme(Guj) 147

Gujarat High Court
Judgename :B.N.KIRPAL, R.K.Abichandani
S.M.DUBEY - Appellant
Versus
STATE - Respondent
L.P.A. 195 of 1988
Decided On : 05/04/1994

Headnote:Service Law - Gujarat Forest Service - Promotion - Seniority - Computation - Direct recruits versus promotees - Seniority list of 1988 revised vide Govt. Resolution - Training period of direct recruits computed and revised seniority list published in 1993 - Held, impugned resolution is ultra-vires of the recruitment Rules - Impugned revised seniority list of 1993 therefore quashed - Seniority list of 1988 held valid & legal.

       The final seniroity list of 1988 was validly prepared. In view of our finding that the period of two years training cannot be computed towards seniority of the direct recruits, we delcare that the impugned resolution dated 31.1.1992 is ultra-vires the rules of Recruitment for the post of Assistant Conservator of Forests, illegal and void. We therefore, set aside the impugned resolution dated 31.1.1992 and the impugned provisional seniority list published under resolution dated 29.1.1993.

       [Para 35]

       Service Law - Promotion - Quota rule - Effect & scope - Explained.

       So long as quota rule remains, neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies. In view of this settled legal position, the contention on behalf of the promotees that their seniority should be reckoned from the initial appointment which was in excess of the quota for promotees, cannot be sustained. The only effect of enforcing the quota rule is to push down the incumbent who is in the excess of quota, to a date when he comes within the quota. The appointment of promotees in excess of their quota was fortuitous in the present case and their continuous length of service for the purpose of seniority would count only from the date when they were absorbed in their quota. The date of appointment of the direct recruits appointed within their quota will however, remain the same.

       [Paras 31 & 32]

       Service Law - Promotion - Assistant Conservator of Forests (Gujarat Forest Service Class II) Recruitment Rules, 1981 (In short Recruitment Rules) - Rules 6, 7 & 8 - Course in Forestry of two years to complete diploma course - Is condition necessary for recruitment under rule 6 - Held, said period of two years cannot be counted in the service period of employee - Administrative resolution in violation of statutory Rules, held, illegal and void - Constitution of India, 1950 - Art. 309.

       A bare reading of Rule 6 clearly indicates that the candidate selected for undergoing the course of Forestry for two years from a recognized institution has not as yet entered the service. His successful completion of two years Diploma (or Degree) course of Forestry is a pre-condition to his employment. The agreement which he is required to execute contains a binding that he will serve Government for not less than 5 years after obtaining Diploma (or Degree) in Forestry which amply shows that the period of two years course that he undertakes is not a service period.

       [Para 15]

       Words & Phrase - Misconduct - Rule 6 of the Recruitment Rules, 1981 - Would mean misconduct while undergoing diploma course - No question of treating the candidate as employee.

       The words "unsuitable for employment" in the context also indicates that the employment has not yet commenced. The provision that if the candidate is found unsuitable for employment due to misconduct, he has to refund the amount expended on him, cannot be construed so as to mean that disciplinary control exercised by an employer over an employee is brought into existence, as was suggested on behalf of the direct recruits. Misconduct in the context of Rule 6 would mean misconduct while undergoing the two years Diploma course in the recognized institution and it is akin to misconduct of a student in an educational institution. It only means that if the candidate has misconducted himself while undergoing the course, he would be found unsuitable for employment and would forfeit the chance of appointment. There is no question of treating him as an employee to be governed by any Discipline and Conduct Rules. It therefore cannot be inferred from the use of word "misconduct" in Rule 6 that the candidate is treated as an employee of the Government.

       [Para 15]