Full Judgment Text
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PETITIONER:
R.S. AJARA & ORS.
Vs.
RESPONDENT:
STATE OF GUJARAT & ORS.
DATE OF JUDGMENT: 03/03/1997
BENCH:
S.C. AGRAWAL, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
[With C.A. No. 1733 of 1997
(@ out of SLP(C) No.11270/94)
AND
C.A. Nos. 1734 -- 1741 of 1997
(@ out of SLP(C) Nos. 20271-20278/96)
J U D G M E N T
S.C. AGRAWAL, J. :-
Special leave granted in Special Leave Petitions Nos.
11270 of 1994 and 20278 of 1996.
These appeals are directed against the judgment of the
Division Bench of the Gujarat High Court dated May 4, 1994
whereby the High Court has held that the resolution of the
Government of Gujarat dated January 31, 1992 and the
seniority list of officers in the Gujarat State Forest
Service Class II as on January 1, 1992 published under
resolution dated January 31, 1992, the Government of Gujarat
has decided that the training period of directly recruited
Assistant Conservator of Forest shall be taken into account
for the purpose of seniority and that the seniority of
Assistant Conservators of Forests selected through direct
recruitment in and after the year 1979 shall be determined
from the date of their being sent for training.
In the State of Gujarat the post of Assistant
Conservator of Forests falls in Gujarat Forest Service Class
II. Recruitment to the said service is governed by the
Assistant Conservator of Forests [Gujarat Forest Service
Class II] Recruitment Rules, 1981 (hereinafter referred to
as ‘the 1981 Rules’). The said Rules provided for
appointment on the post of Assistant Conservator of Forests
by promotion from amongst persons working as Range Forest
Officers as well as by direct selection through the Gujarat
Public Service Commission. Appointment by promotion and
direct selection is to be made in the ration of 2 : 1 of the
vacancies available. Under Rule 6 of the 1981 Rules
candidates selected for appointment by direct selection are
required to undergo a course in Forestry for two years at
an institution recognised by Government and to obtain a
diploma [or degree in Forestry] from the institution. The
Government pays an annual sum of Rs. 3,500/- as tuition
fees. Earlier There was a provision for payment of stipend @
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Rs. 500/- per month and tour expenses of Rs. 2,400 for two
years for each selected candidate sent for training. The
candidate is required to execute an agreement with two
sureties binding himself to work diligently at such
institution and serve the Government for not less than five
years after obtaining a diploma [or degree] in Forestry from
the institution and he is required to refund the amount
spent by the Government on his training with interest @ 6
percent annum if he fails to carry out the terms or is found
unsuitable for employment due to misconduct. By notification
of the Government of Gujarat dated March 31, 1982, instead
of the stipend of Rs. 500/- per month it has been provided
that the trainees who have selected for recruitment on the
post of Assistant Conservator of Forests would draw the
minimum of the time scale of the pay of that post, i.e., Rs.
700-1300/- along with admissible allowance thereof without
normal increment. In addition to obtaining a diploma or
degree from the institution the selected candidates are
required to undergo a course of particle training of 8
weeks under a Deputy Conservator of Forests and to undergo a
test of the ability to make in four hours a journey of 25
kms. on foot. After completing both courses of training the
selected candidate is appointed to Class Ii of the Gujarat
Forests Service as Assistant Conservator of Forest on
probation for a period of two year. The next post higher to
the post of Assistant Conservator of Forests is the post of
Deputy Conservator of Forests. Recruitment to the said post
is governed by the Deputy Conservator of Forests [Gujarat
Forests Service] Recruitment Rules, 1987 (hereinafter
referred to as ‘the 1987 Rules’). Under Rule 2 of the 1987
Rules appointment to the post of Deputy Conservator of
Forests is made by promotion from amongst the persons
holding the post of Assistant Conservator of Forests and who
have put in at least eight years service on the said of
Assistant Conservator of Forests. The said period of eight
years service includes the training period in the Forest
College. The recruitment rules that were in force prior to
the promulgation of the 1981 Rules also made similar
provision regarding appointment on the post of Assistant
Conservator of Forests by way of promotion as well as by way
of direct selection and the selected candidates were
required to undergo a course of Forestry for two years at an
institution recognised by the Government and to obtain a
diploma [or degree] in Forestry from the institution. There
was provision for payment of tuition fees, monthly stipend
and tour expenses for two years for each candidate selected
for training subject to his executing an agreement with two
sureties binding himself to serve the Government for not
less than five years and to refund all money expended by the
Government on his training at the institution with interest
@ 6 percent per annum if the failed to carry out the terms
or was found unsuitable for employment due to mis-conduct.
On satisfactory completion of training the selected
candidates were appointed as Assistant Conservators of
Forests on probation for two years.
The appellants in C.A. No. 4787 of 1994 were appointed
on the post of Assistant Conservator of Forests by direct
selection by the Gujarat Public Service Commission in the
years 1979. They where sent for the two-year training in
January 1980 and after completing the said course in
Forestry they were appointed as Assistant Conservator of
Forests in February, 1982. Respondents Nos. 3 and 4 in the
said appeals were promoted as Assistant Conservators of
Forests prior to the appointment of the appellants. On
August 5, 1987, the Government of Gujarat issued a
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provisional seniority list for the cadre of Assistant
Conservator of Forests as on January 1, 1987. In the said
seniority list the names of the appellants were not
included. Thereafter a final seniority list was issued on
October 27, 1988. The said list also did not contain the
names of the appellants. Special Civil Application No. 877
of 1988 was filed by the directly recruited officers wherein
provisional seniority list published on August 5, 1987 was
challenged. Special Civil Application No. 1109 of 1988 was
filed by promotee officers wherein they challenged the 1987
Rules relating to the promoting on the post of Deputy
Conservator of Forests. On October 24, 1989 the Government
of Gujarat prepared a select list for the purpose of
promotion on the post of Deputy Conservator of Forests. None
of the appellants the said select list. The said select list
was approved by the Gujarat Public service Commission on
July 19, 1990. In the meanwhile another provisional
seniority list had been issued on January 8, 1990. In the
said seniority list the names of the appellants were shown
but the period of two years spent on training was excluded.
A Civil Suit [No. 699 of 1990] was filed by the direct
recruits seeking an injunction restraining the State
Government form implementing the seniority list dated
January 8, 1990. In the said suit the Government of Gujarat,
on February 8, 1991, filed a purshis agreeing in principle
to take into consideration the training period of directly
recruited Assistant Conservator of Forests for the purpose
of seniority with retrospective effect. Special Civil
Application No. 896 of 1991 was filed in the High Court by
the promotee officers to restrain the State Government from
revising the seniority list of 1988 and to direct the
Government to make promotions on the basis of the select
list of October 24, 1989. Another Special Civil Application
[No. 1447 of 1991] was filed by the directly recruited
officer for directing the State Government to consider the
petitioner for promotion to the post of Deputy Conservator
of Forests and to quash the select list prepared on October
24, 1989. During the pendency of the said Writ Petitions the
State Government passed the impugned resolution dated
January 31, 1992 and issued a provisional seniority list on
January 29, 1993 of Assistant Conservators of Forests as on
January 1, 1992. Special Civil Application No. 1403 of 1993
was file promotee officers challenging the said resolution
dated January 31, 1992 and the seniority list dated January
29, 1993.
Special Civil Application No. 896 of 1991 filed by
promotee officers and Special Civil Application No. 1447 of
1991 filed by the directly recruited officers were heard
together and disposed of by a learned Single Judge [S.D.
Shah J.] by judgment dated November 20/23, 1992. The
learned Single Judge held that the 1981 Rules do not make
any provision regarding fixation of seniority and that it
was permissible for the State Government to lay down the
principle for fixation of seniority of direct recruits by
resolution dated January 31, 1992 and the said resolution
does not violated the provisions of the 1981 Rules. the
contention urged on behalf of the promotee officers that the
said resolution affects their vested rights was rejected. It
was held that the provisional seniority list dated August 5,
1987 as well as the final seniority list dated October 27,
1988 were invalid since those seniority lists did not
contain the names of the directly recruited Assistant
Conservators of Forests who were selected in the year 1979
and had been appointed after undergoing the course in
Forestry. The learned Single Judge also held that the select
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list that was prepared for the purpose of promotion to the
post of Deputy Conservator of Forests on October 24, 1989
and which was approved on July 19, 1990 was illegal since it
was not prepared on the bases of seniority of Assistant
Conservators of Forests and the basis of seniority of
Assistant Conservator of Forests and in the matter of
considering the officer the requisite number as required
under the guidelines prescribed for the purpose of
consideration was not taken into consideration. The
resolution dated January 31, 1992 was upheld as valid an the
select list dated October 24, 1989 was quashed and it was
directed that a fresh select list be prepared on the basis
of the provisional seniority list.
The promotee officers filed Letters Patent Appeals Nos.
195-196 of 1993 against the said judgment of the learned
Single Judge in Special Civil Application Nos. 896 of 1991
and 1447 of 1991 respectively. The said Letter Patent
Appeals along with other Special Civil Applications [Nos.
877 of 1988, 4400 of 1993, 1109 of 1988, 1696 of 1991, 1403
of 1993 and 2124 of 1986] were heard and disposed of by the
Division Bench of the High Court by the impugned judgment
dated May 4, 1994. The learned Judges on the Appellate Bench
reversed the judgment of the learned Single Judge and have
held that the resolution dated January 31, 1992 is violative
of the statutory rules (1981 Rules) of recruitment to the
post of Assistant Conservator of Forests, more particularly
Rules 8 and deserves to be struck down since it was
inconsistent with the said rules. The said resolution was
also held to be invalid on the ground it was given
retrospective effect from 1979 and the seniority list which
was published under the said resolution has also been struck
down by the High Court. The learned Judges have upheld the
final seniority list published on October 27, 1988 as valid
and legal and have upheld the select list which was prepared
on the basis of the said final seniority list. On that view
of the matter the learned judges have allowed both the
Letters Patent Appeals filed by the promotee officers
against the judgment of the learned Single Judge and on that
basis Special Civil Application No. 896 of 1991 filed by the
promotee officers was allowed and Special Civil Application
No. 1447 of 1991 filed by the directly recruited officers
was dismissed. As regards other Special Civil Application
the learned Judges have allowed Special Civil Application
Nos. 4400 of 1993 and 1403 of 1992 filed by the promotee
officers and have dismissed Special Civil Application Nos.
877 of 1988, 1109 of 1988, 1696 of 1991 and 2124 of 1986
filed by the directly recruited officers. Feeling aggrieved
by the said judgment of the Division Bench of the High
Court, the directly recruited officer as well as the State
of Gujarat have filed these appeals.
Shri D.A. Dave, the learned senior counsel appearing
for the directly recruited offers who are appellants in
Civil Appeal No. 4787 of 1994 and in Civil Appeal arising
out of S.L.P. (C) No. 11270 of 1994, has submitted that the
learned Judges of the Division Bench of the High Court were
in error in reversing the judgment of the learned Single
Judge and that the learned Single Judge had rightly held
that the 1981 Rules do not make any provision regarding
fixation of seniority of directly recruited Assistant
Conservator of Forests and since the 1981 Rules are silent
it was open to the State Government to issue and
administrative order laying down the principles for fixation
of seniority of directly recruited Assistant Conservator of
Forests and that the resolution dated January 31, 1992 does
not suffer from any legal infirmity. The learned counsel has
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also submitted that the learned Judges of the Division Bench
of the High Court were in error in holding that the said
resolution is inconsistent with the 1981 Rules and that it
is bad on account of having given retrospective effect. The
submission is that the impugned judgement does not affect
any of the vested rights of the promotee officers and that
the leaned Single Judge has rightly held that the
provisional seniority list dated August 5, 1987 and the
final seniority list dated October 27, 1988 were invalid and
so also the select list of October 24, 1989. Shri Subhash
Bhargava, the learned counsel appearing for the State of
Gujarat, has taken the same stand.
Shri P.P. Rao, the learned senior counsel appearing for
the promotee officers, has however, supported the judgment
of the Division Bench of the High Court and has urged that
the resolution dated January 31, 1992 is invalid being
inconsistent with the 1981 Rules and furthermore it
adversely affects the rights which accrued to the promotee
officer in the matter of seniority and promotion on the
basis of the principle of seniority which was being followed
prior to the passing of the resolution dated January 31,
1992 whereunder seniority was determined on the basis of the
date of appointment.
Before we deal with the aforesaid submissions of the
learned counsel, we may briefly refer to the background in
which the resolution dated January 31, 1992 was passed by
the State Government. On November 17, 1981, the President of
the Forest Research Institute & Colleges, Dehradun addressed
a letter to the Secretary, forest Department, in the various
States and a copy of the said letter was also sent to
Inspector-General of Forests, Ex- officio Additional
Secretary to the Government of India, Ministry of
Agriculture. In the said letter, the President of the Forest
Research Institute & Colleges referred to the complaint of
the trainees undergoing training at State Forest Services
Training Colleges at Coimbatore, Burnihat and Dehradun that
because they were not treated as "in-service trainees" they
were undergoing great hardship in matters of getting
sufficient money to meet their training expenditure and
further that due to their two-year training not being
considered a part of their services they lose seniority when
they are to be taken in the promotion quota of the Indian
Forest Service subsequently. In the said letter it was
stated that some states, like Jummu & Kashmir and Sikkim,
sen their State Forest Service trainees after appointing
them in service. It was also stated that the trainees of the
Indian Forest Service are appointed in services before
joining the training college. The President has expressed
the view that there is very strong case for the state Forest
Service trainees to be treated as "in-service trainees" from
the date they are selected by the respective State Public
Service Commissions. He further stated that in order to
raise their standard of training and morale as also to bring
them at par with the Indian Forest Service training
facilities, the state Forest Service trainees may also be
treated as "in-service trainees", i.e., they may be
appointed to the State Forest Service before they are sent
for training in their respective colleges. Action on the
basis of the said letter from the President, Forest Research
Institute and College was taken by the Government of Gujarat
in stages. by resolution dated March 31, 1982 the grievance
of the trainees regarding the allowances payable to them
during the course of training was removed and it was
prescribed that the directly recruited Assistant Conservator
of Forests undergoing training shall draw the minimum of
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their time scale of pay in that post, i.e., Rs.700-1300
together with admissible allowances thereof with immediate
effect. By the 1987 Rules their grievance about the period
of training not being counted for the purpose of promotion
was redressed and it was provided that for the purpose of
eligibility for promotion to the post of Deputy Conservator
of Forests the period of training would be included. The
other grievance with regard to seniority on the post of
Assistant Conservator of Forests remained pending
consideration with the State Government till the passing of
the resolution dated January 31, 1992. The said resolution
dated January 31, 1992 reads as under :-
PREAMBLE
Officers being selected by
direct recruitment in Indian
Forests Service, are being sent for
training in Diploma course in
Forestry, and their training period
is being taken into account during
their probation period and for the
purpose of seniority. The
Government of India has, vide its
letter dated 17.11.81, instructed
the State Governments to treat the
training period of directly
recruited Assistant Conservator of
Forests as part of their service.
Pursuant to the said instruction of
the Government of India, many State
Governments have issued order
treating the training period of
directly recruited Assistant
Conservator of Forests as part of
their service. As per Note-2, below
Rules 15, Forest Manual Part-I, the
training period is being taken into
account for the purpose of
pensionable service. During the
training period, the trainees are
also paid the pay of the cadre of
Assistant Conservator of Forests.
As per the amendment made in the
Recruitment Rules of Deputy Forest
Conservators, vide the Forests and
Environment Department resolution
dated 8.5.87, the training period
is taken into account as minimum
experience. Taking into
consideration the abovestated
reasons, the question of treating
the training period of directly
recruited Assistant Forest
Conservators as part of their
service and taking the same into
account for the purposes of
seniority, was under active
consideration of Government. After
scrutinizing all aspects of the
instant matter, it is decided to
take into account the training
period of directly recruited
Assistant Forest Conservators, for
the purposes of seniority.
RESOLUTION
It is hereby decided to take
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into account the training period of
directly recruited Assistant
Conservator of Forests for the
purposes of seniority. The
seniority of the Assistant Forest
Conservator selected through direct
recruitment in and after the year
1979 shall have to be determined
from the date of their being sent
for training.
The provisional seniority list
of the Class II officers of the
Gujarat Forests Service showing
their position as on 1.1.90 has
been published under Resolution No.
FST-1283-7075-V-1, dated 8.1.90,
which will have to be modified as
per this order and a fresh
seniority list duly modified shall
have to be issued."
The learned Judges on the Division Bench of the High
court have held that the resolution dated January 31, 1992
deserves to be struck down since the administrative
instructions contained there in are violative of the 1981
Rules which are statutory in nature. It is, therefore,
necessary to examine the scheme of the 1981 Rules to
determine as to whether they lay down a principle for
fixation of seniority of persons appointed as Assistant
Conservators of Forests by direct selection. As stated
therein, the 1981 Rules have been made to provide for
regulating recruitment to the post of Assistant Conservator
of Forest in the Gujarat Forests Service Class II. The
heading of the said Rules also indicates that they are
recruitment rules. Rule 2 makes provision for appointment to
the post of Assistant Conservator of Forests to be made
either by promotion or by direct selection. Rules 3
prescribes the conditions for eligibility for appointment by
promotion. Rule 4 prescribes the conditions for eligibility
for appointment by direct section. Rule 5 prescribes the
ration in which the appointment is to be made by promotion
and by direct selection. Rule 6 prescribes that the selected
candidate shall be required to undergo a course in Forestry
for two years at an institution recognised by Government and
to obtain a Diploma [or degree] in Forestry from the
Institution, and also makes provision for payment of tuition
fees, stipend and tour expenses for the said period of two
years. Rule 7 makes provision for a course of practical
training for eight weeks for the directly recruited
candidates. Rules 8 provides for appointment of a selected
candidate to Class II of the Gujarat Forests Service as
Assistant Conservator of Forests on probation for two year
after he has satisfactorily completed the courses of
training prescribed in rules 6 and 7. Rule 9 requires that
the selected candidate shall be required to pass the
Departmental examination and an examination in Gujarati or
Hindi or both. Rules 10 makes a similar provision in respect
o a candidate appointed by promotion. A perusal of the
provisions of the 1981 Rules thus indicates that the said
rules deal exclusively with the matter of recruitment and
appointment on the post of Assistant Conservator of Forests
and do no make any mention with regard to fixation of
seniority of the persons so appointed.
The 1981 Rules differ from similar rules framed in the
State of Orissa which came up for consideration before this
Court in Prafulla Kumar Swain vs. Prakash Chandra Misra &
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Ors. 1993 Supp. (3) SCC 181. In that case, this Court has
considered the provisions of the Orissa Forest Service Class
II Recruitment Rules, 1959 and the regulations made
thereunder relating to appointment on the post of Assistant
thereunder relating to appointment on the post of Assistant
Conservator of Forests. The said rules made provision for
appointment on the post of Assistant Conservator of Forests
by promotion as well as by direct recruitment and persons
selected by direct recruitment were required to undergo a
course in Forestry for a period of two years and they were
to be appointed after successful completion of training at
the institution. The question was whether service was to be
reckoned from the date of actual appointment to the service
or from the date selection for training and the period of
training could be counted for the purpose of seniority. It
was held that seniority has to be reckoned from the actual
date of appointment in view of the fact that there was an
express provision in regulation 12(C) wherein it was
prescribed "such service will count only form the date of
appointment to the service after successful completion of
the course of training". In other words, in the regulations
appended to the rules in that case there was an express
provision that the period of training will not be counted as
part of the service. This Court was of the view that in view
of the said provision the period of training could not be
counted for the purpose of seniority.
The learned Judges on the Division Bench of the High
Court have referred to the decision in Prafulla Kumar Swain
[supra] and have observed that this court did not base it
conclusion only on Regulation 12(c) and that the absence of
a provision similar to Regulation 12(c) in the 1981 Rules
does no make any difference. We find it difficult to agree
with the said view of the High Court. In Prafulla Kumar
Swain [Supra], it has been observed:
"Regulation 12(c) in unmistakable
terms says that the period of
training will not count as service
under Government. Such service will
count only from the date of
appointment to the services after
successful completion of the course
of training. [Emphasis supplied] we
must give full meaning and effect
to this Regulation".
"Nowhere in the recruitment Rules
of 1959 it is specified that
services of a direct recruit under
the Government shall be reckoned
from the date of selection in the
competitive examination, On the
contrary, Regulation 12(c) is very
clear that the period of training
is not to be reckoned as Government
service.
It would thus appear that in view of the express
provision contained in regulation 12(c) it was held that the
period of training could not be reckoned for the purpose of
seniority. There is no provision similar to Regulation 12(c)
in the 1981 Rules. In the absence of a provision similar to
Regulation 12(c) in the 1981 Rules it is not possible to say
that the 1981 Rules postulate that the seniority of directly
recruited Assistant Conservator of Forests must be counted
only from the date of their appointment and the period of
training undergone by them prior to the appointment must be
ignored. The learned Judges on the Division Bench of the
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High Court referred to Rule 6,7 and 8 of the 1981 Rules and
have observed that the statutory position emanating from the
said rules is that the appointment of a direct recruit takes
place only after his successful completion of training
course. We are unable to construe these rules to mean that
seniority should be counted from the dated appointment and
the period of training should excluded. We must, therefore,
proceed on the basis that the 1981 Rules do not lay down any
principle in the matter of fixation of seniority of the
Assistant Conservator of Forests who are recruited under the
provisions of the said Rules. Since the Rues are silent it
was open to the State Government to lay down the principle
for fixation of seniority by an administrative order and the
resolution dated January 31, 1992 cannot be held to be bad
on the ground that it is inconsistent with the 1981 Rules.
As regards the principle that has been laid the ground
that it is inconsistent with the 1981 Rules.
As regards the principle that has been laid down in the
resolution dated January 31, 1992, it cannot be disputed
that normally seniority is measured by the length of
service. But this does not preclude a different prescription
provided the constitutional tests are satisfied. [See : N.K.
Chauhan & Ors. vs. State of Gujarat & Ors. 1977(1) SCR 1037,
at p. 1057; and Ram Janam Singh vs. State of U.P. & Anr.,
1994 (2) SCC 622, at p.627]. There have been cases where the
period of training prior to the date of appointment has been
reckoned for the purpose of seniority. IN Prabhakar & Ors.
vs. State of Maharashtra & Ors., 1976 (2) SCC 890, Clause
7(1)(a) of the Bombay police officers (combined Cadre)
Condition of Service Order, 1954 made under Section 5(b) of
the Bombay Police Act, 1951 prescribed that seniority was to
be fixed by taking into account the period of training in
certain cases. The said provision was affirmed as valid by
this Court and it was observed :
"There was nothing wrong illegal or
unreasonable in making a provision
in sub-clause (a) that in such a
situation the commencement of the
period of training will be taken as
the date from the purposes of
fixation of seniority. There was a
reasonable and rational nexus
between the object and the rules.
It was form the rules-making
authority to decide and to choose
in such a situation - either the
date of commencement of the
training or the date of
appointment."
[p.894]
Similarly in H.V. Pardasani & Ors. vs. Union of India &
Ors., 1985 (2) SCC 468, under Note 2 appearing below Rule
12(5) of the Central Secretariat Service Rule, 1962 certain
period prior to the date of appointment of direct recruits
was treated as approved service for the purpose of
seniority. The said provision was held as valid on the view
that in the process of direct recruitment there is a
considerable delay and though the competitive examination is
held in one particular year, by the time the selected
officer comes to join the post, more than a year is lost and
therefore, a rational view has been taken of the situation
and for the computation of length of service the particular
provision has been made and the same was not open to
challenge as arbitrary provision.
The resolution dated January 31, 1992 has been assailed
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by the promotee officers on the ground that it is
retrospective in operation and affects their rights. The law
in this field is well settled by the decisions of this
Court. A benefit that has accrued under the existing rules
cannot be taken away by an amendment with retrospective
effect and no statutory rule or administrative order can
whittle down or destroy any right which has become
crystallized and no rules can be framed under the proviso to
Articles 309 of the Constitution which affects or impairs
the vested rights [See: State of Gujarat & Anr. vs. Ramanlal
Keshavlal Soni & Ors., 1983 (2) SCR 287; Ex-Captain K.C.
Arora & Anr. vs. State of Haryana & Ors., 1984 (3) SCR 623;
T.P. Kapur & Ors. vs. State of Haryana & Ors., 1987(1) SCR
584; Uday Pratap Singh & Ors. vs. State of Bihar & Ors. 1994
Supp. (3) SCC 451]. Can it be said that the resolution dated
January 31, 1992 makes any change in the existing provision
governing the seniority so as to take away or deprive the
respondents of a right which has accrued to them or which
has crystallized ? As noticed earlier, the 1981 Rules do not
contain nay principle governing the seniority of Assistant
Conservators of Forests appointed under the said Rules. Shri
P.P. Rao has invited our attention to the Handbook for
Personnel Officers issued by the General Administration
Department of the Government of Gujarat. In Para 1 of
Chapter V, dealing with SENIORITY, it is stated :
"In the case of direct recruits
appointed on probation, the
seniority would be determined
ordinarily with reference to the
date of their appointment on
probation while in the case of the
promotees, seniority would be
determined with reference to the
date of their promotion to long-
term vacancies". [Emphasis
supplied]
This is a general principle which is to be applied
ordinarily. But there was nothing to show that this
principle was applied by the State Government in the matter
of fixation of seniority of directly recruited Assistant
Conservator of Forests. The fact that it was not so applied
is evident form the facts that in the provisional seniority
list dated August 5, 1987 as well as in the final seniority
list dated October 27, 1988 the names of the directly
recruited Assistant Conservators of Forests were not
included which indicates that the State Government had not
taken a decision regarding the principle to be followed
regarding fixation of seniority of such officers and the
matter was under consideration of the Government. This fact
is also borne out by the Preamble to the resolution dated
January 31, 1992 wherein it is stated that the question of
treating the training period of directly recruited Assistant
Conservator of Forests as part of their service and taking
the same into account for the purpose of seniority, was
under active consideration of Government.
Shri P.P. Rao has also placed reliance on the
resolution of the Government of Gujarat dated December 4,
1986. The said resolution relates to implementation of the
judgment of this Court in N.K. Chauhan [supra] in the matter
of allocation of vacancies ear-marked for direct recruits
and promotees and adjustment of appointments made in excess
of quota in a particular year by pushing down to the next
year or years. In that context, in answer to the question
about the manner of placement of officers appointed against
"carried forward" vacancies, It has been stated, that
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"seniority inter-se of the officers has necessarily to be
governed by the chronological order of dates of
appointment". This order is also general in nature and on
the basis of the same it cannot be said that the Government
has taken a decision regarding the principle to be applied
in the matter of fixation of seniority of directly recruited
Assistant Conservators of Forests. It must, therefore, be
held that prior to the issuance of the resolution dated
January 31, 1992 the State Government has not prescribed any
principle for fixation of seniority of directly recruited
Assistant conservator of Forests and it cannot, therefore,
be said that the said resolution alters an existing
principle regarding fixation of seniority of these officers.
In V.T. Khanzode & Ors. vs. Reserve Bank of India &
Anr., 1982 (2) SCC 7, while upholding the validity of an
administrative circular of the Reserve Bank of India whereby
it was decided to combine the seniority of all officers on
the basis of their total length of service [including
officiating service] in Group I (Section A), Group II and
Group III with retrospective effect which was assailed on
the ground that it had adversely affected the existing
seniority of officers, particularly of those in Group I, who
were placed many places below their existing position of
seniority , this Court has observed:
"Private interest of employees of
public undertakings cannot override
public interest and effort has to
be make to harmonize the two
considerations. No scheme governing
service matters can be foolproof
and some section or the other of
employees is bound to feel
aggrieved on the score of its
expectations being falsified or
remaining to be fulfilled.
Arbitrariness, irrationality,
perversity and mala fides will of
course render any scheme
unconstitutional but the fact that
the scheme does not satisfy the
expectations of every employee is
not evidence of these. Vested
interests are prone to hold on to
their acquisitions and we
understand the feelings the
benefits which had accrued to them
in a waterlight system of groups."
[p.29]
In Union of India & Ors. vs. Dr. S.Krishna Murthy &
Ors., 1989 (4) SCC 689, Emergency Commissioned
Officers/Short Service Commission Officers recruited to the
Indian Forest service and Indian Police Service had been
given the benefit of earlier military service and as a
result the year of allotment was changed. This was
challenged by other officers on the ground that it affected
their seniority. The said contention was negatived by this
court and it was observed :
"The respondents have been given a
particular seniority in accordance
with the rules. The seniority of
the respondents is not taken away
of interfered with by the impugned
rules. The year of allotment of the
respondents remains the same and is
not altered to their prejudice. The
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impugned rules only provide for
giving weightage to the ECOs and
SSCOs for their past services in
the army during the emergency
period and their year of allotment
will be determined in accordance
with the impugned rules .........
Nobody has any fundamental right to
a particular seniority or to any
chance of promotion."
[p.698]
As regards the effect of the Resolution dated January
31, 1992 on the rights of the promotee officers in the
matter of seniority and promotion, it may be stated that
till the issuance of the resolution dated January 31, 1992
the inter-se seniority of directly recruited and promotee
officers has not been determined and no final seniority list
indicating the inter-se seniority of such officers has been
issued. The provisional seniority list dated October 27,
1988 did not include the names of the directly recruited
Assistant Conservators of Forests even though they had been
appointed in 1982 much before the publication of those
seniority lists. The learned Single Judge has rightly held
that these seniority lists were not valid. The seniority
list that was issued on January 8, 1990 was provisional in
nature and did not confer any rights. Moreover the said
seniority list was challenged by the directly recruited
officers by filing Civil Suit No. 699 of 1990 wherein the
State Government filed a purshis agreeing in principle to
take into consideration the training period of directly
recruited Assistant Conservators of Forests for the purpose
of seniority with retrospective effect. It cannot,
therefore, be said that the seniority inter-se between the
promotee and the directly recruited officers had been
finally determined prior to the issuance of the resolution
dated January 31, 1992 and the said seniority was being
altered to the prejudice of the promotee officers.
Similarly as regards the right to promotion it may be
stated that the select list which was prepared on October
24,1989 for the promotion on the post of Deputy Conservator
of Forests and which was approved on July 19,1990 has been
rightly found to be defective by the learned single judge
since the selection was to be made for 15 posts and as per
the handbook published by the General Administration
Department, Government of Gujarat under the heading
"Classification of Posts for the purpose of Promotion" 45
candidates were required to be considered from the cadre of
Assistant Conservators of Forests and the Departmental
Promotion Committee which prepared the select list on
October 24, 1989 and considered only 23 candidates from the
cadre of Assistant Conservators of Forests. The said select
list was, therefore, rightly found to be invalid by the
learned Single Judge. The learned Judges on the Division
Bench of the High Court have not considered the said
infirmity in the preparation of the select list. The
promotee officers cannot, therefore, claim that any right to
promotion had accrued to them on the said of the said select
list and the same has been adversely affected as a result of
the resolution dated January 31, 1992.
For the reasons aforementioned, we are unable to uphold
the judgment of the Division Bench of the High Court
striking down resolution dated January 31, 1992 and the
seniority list dated January 29, 1993. On that view of the
matter, the judgment of the learned Single Judge dismissing
Special Civil Application No. 896 of 1992 filed by the
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promotee officers and fallowing Special Civil Application
No. 1447 of 1991 filed by the directly recruited officers
has to be restored. For the same reasons, special civil
Application Nos. 1403 of 1993 and 4400 of 1993 have to be
dismissed. Special Civil Application Nos. 1109 of 1988 and
1696 of 1991 filed by the promote officers relating to
fixation of seniority have become infructuous on account of
resolution dated January 31, 1992.
In the result, the appeals are allowed, the judgment of
the High Court dated may 4, 1994 in L.P.A. Nos. 195 and 196
of 1993 is set aside and the said appeals are dismissed and
consequently the judgment of the learned single judge
special civil application No. 896 of 1992, filed by the
promotee officers and allowing Special civil application No
1447 of 1991 filed by the directly recruited officers is
restored. So also Special civil application Nos. 1403 of
1993 and 4400 of 1993 filed by the promotee officers are
dismissed. Special Civil Application Nos. 2124 of 1986, 877
of 1988, 1109 of 1988 and 1696 of 1991 are dismissed as
having become infructuous. No orders as to costs.