TMI Blog1990 (11) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... bordinate Service which is a feeder source for recruitment by promotion under Rule 5(b) of the rules as Asstt. Conservator of Forest Rule 4 constitutes and fixes the cadre strength of Chief Conservator of Forest; Conservator of Forest; Deputy Conservator of Forest and Asstt. Conservator of Forest. By fiction of law in Note to Rule 3(h) all the members of the old provincial Forest Service became members of the initially constituted service. It would appear that after amalgamation no recruitment under Rule 5(a) of the posts of Assistant Conservator of Forest was immediately made. In May, 1966, the selection to the posts of Asst. Conservator of Forest was made but was ultimately vacated by this Court in A.K. Kraipak and Ors. etc. v. Union of India and Ors. [1970]1SCR457 and the connected matters. The process of recruitment was again started in the year 1972 but was stayed by the High Court of Allahabad in W.P. No. 119 of 1972. The list of the recruits of 1966 could not thus be finalised till 1975. With effect from May 1, 1975, the ratio of 25% recruitment of promotees in Rule 6 was increased to 33 l/3rd per cent. The Governor also issued promotion by selection in consultation with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 'B' in paragraph 47 in Direct Recruits Class II Engineering Officers' Association v. State of Maharashtra 4 [1990]2SCR900 , Prop. 'B' for short 'Direct Recruits' case' in their support. 2. Shri P.P. Rao, learned Counsel for the direct recruits contended that the appointment of the promotees admittedly being ad-hoc, they had not have any right to the posts. Their appointments, not being on the basis of merit as per rules, did not confer any right to posts. Their seniority has to be counted only from the dates of substantive appointment. The service rendered from the dates of initial promotion till date of the substantive appointment should be treated as fortuitous. The delay to make direct recruitment had been occasioned only on account of the pendency of the proceedings right from Kraipak's case in Allahabad High Court till the present group of writ petitions. Since promotees were appointed in excess of the prescribed quota in Rule 6, they should be pushed down to the vacancies that had arisen in each year above the direct recruits as per the ratio as the promotees are not entitled to claim seniority from the initial dates of their respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tments to be made-The Governor shall decide the number of vacancies to be filled from each of the two sources specified in Rule 5 provided that not more than 33 1/3 per cent of the total number of posts in the Service shall be filled from the source mentioned in Clause (b) of Rule 5. In deciding the number of vacancies to be filled from each of the two sources each year, regard shall be paid to the relative number of promoted and directly recruited officers in the cadre of the Service. The above percentage will be observed if suitable officers are available for promotion to that extent. 5. Part V provides the procedure for appointment, probation and confirmation. 6. Rule 12 prescribes the procedure for appointment. A person finally selected for appointment to the Service in the manner prescribed in the foregoing rules shall be appointed by the Governor thereto (unless he subsequently becomes disqualified for appointment) on the occurrence of a substantive vacancy. The order in which such appointments made shall be: (a) in the case of candidates appointed by recruitment, as indicated in the fourth proviso to Rule 24; and (b) in the case of candidates recruited by promoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther that candidates by direct recruitment and who are recruited by promotion in the same year, the latter shall be placed above the former in the seniority list. 12. Appendix 'A' and 'B' are integral parts of Rule 5. Appendix 'A' relates to the direct recruits and Appendix 'B' relates to the pro-motees. Appendix 'A' enumerates the procedure to notify the vacancies for direct recruitment to the post of Assistant Conservator Forest by the Public Service Commission, Uttar Pradesh and the manner of Selection. 13. Para 16 postulates that on obtaining Diploma in Forestry at the end two years' Course at the Dehra Dun Forest Training College, the candidate will be appointed as Assistant Conservator of Forest. Appendix 'B' prescribes the procedure for recruitment by promotion in terms of Rule 5(b) . Paragraph 1 says thus: For the purpose of recruitment under Clause (b) of Rule 5, a selection strictly on merit shall be made from amongst Forest Rangers eligible under the rules for promotion. Then the procedure was prescribed for selecting the candidates by promotion, the details of which are not material. Para 4 postulates th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n within two years or extended period and passing the tests and on confirmation thereof by the Governor, he becomes a member of the service in substantive capacity. Similarly the promotees shall be recruited in accordance with Rule 5(b) and the procedure prescribed in Appendix 'B'. The Chief Conservator of Forest would draw up the list of permanent Forest Range Officers eligible for promotion strictly on the basis of merit. The Committee headed by the member of the Public Service Commission would interview them and prepare the list of the selected candidates on the basis of merit and ability, which would be forwarded to the Government. On receipt thereof the Governor would appoint the Forest Range Officers as Asstt. Conservator of Forest on probation in terms of the ratio prescribed in Rule 6. The selection shall be based on merit and ability. The seniority of Forest Rangers inter se is to be considered only where the merit and ability as Forest Rangers are approximately equal. Thus even the junior most meritorious Forest Range Officer would steal a march over his seniors and would earn his seniority as Asstt. Conservator of Forest. The promote t shall also be on probation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to inclusion in a common list of seniority is that all those who claim that right must broadly bear the same characteristics. Fortuitous circumstances of their holding the grade post carrying the same designation or scale of pay or discharging the same duty would not justify the conclusion that they belong to the same cadre. Due to exigencies of service temporary promotions against substantive vacancies were made. It is undoubted that preceding their promotion, an ad-hoc Committee had considered the cases of the promotees. Admittedly seniority subject to rejection of unfit was the criteria, followed in the selection. The selection was therefore, in defiance of and dehors Rule 5(b) read with Appendix ' B'. 19. In a democracy governed by Rule of Law, it is necessary for the appropriate governance of the country that the political executive should have the support of an efficient bureaucracy . Our Constitution enjoins upon the executive and charges the legislature to lay down the policy of administration in the light of the directive principles. The executive should implement them to establish the contemplated egalitarian social order envisaged in the preamble of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the post on a regular basis. To give benefit of such service would be contrary to equality enshrined in Article 14 read with Article 16(1) of the Constitution as unequals would be treated as equals. When promotion is out side the quota, the seniority would be reckoned from the date of the vacancy within the quota, rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or sub-sequent confirmation. In order to do justice to the promotees it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one it must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or expediency. The result of pushing down the promotees appointed in excess of the quota may work out hardship but it is unavoidable and any construction otherwise would be illegal, nullifying the force of statutory rules and would offend Articles 14 and 16(1). therefore, the rules must be carefully applied in such a manner as not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed relaxation of the relevant rules and directed to regularise the services giving the entire length of temporary service from the date of initial appointment for seniority. To lay down binding precedent the cases were referred to a Constitution Bench. In the Direct Recruits' case, this Court has laid down clear propositions of general applications in items A to K. therefore, to keep the law clear and certain and to avoid any slant, we are of the considered view that it is not expedient to hark back into the past precedents and we prefer to adhere to the ratio laid down in the Direct Recruits' case. 23. As stated, the counsel for the promotees placed strong reliance on proposition 'B' while the counsel for the Direct Recruits relied on proposition 'A'. The controversy is as to which of the propositions would apply to the facts of this case. The proposition 'A' lays down that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The latter part thereof amplifies that where the initial appointment is only ad-hoc and not accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be counted for their seniority. We express our inability to accede to the contention. It is seen that appointment of the promotees as Assistant Conservators of Forest was not in accordance with Rule 5(b) read with appendix 'B' of the rules. Admittedly the promotees were on ad-hoc basis pending direct recruitment and are in excess of the quota prescribed under Rule 6. By no stretch of imagination it could be said that the promotions were made to a substantive post in accordance with the rules. therefore, the promotees do not hold the post in substantive capacity. 25. Undoubtedly when there was dearth of direct recruits the promotees discharged the duties ranging between 5 to 12 years prior to filing of the writ petitions. The promotees generally may get one or two chances of promotion to cadre posts in higher echelons of the Indian Forest Service. Reckoning continuous officiation of ad-hoc promotion would enable the less privileged to excel their latent capabilities in the cadre post. 26. In an appropriate case if the court finds that wanton or deliberate deviation from the rules was made by the implementing authority the court should call upon them to explain the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rules to such an extent as (emphasis supplied) may be necessary to ensure satisfactory working or removing inequitious results held that as the Government deliberately deviated from the rules and allowed the promotees to be in continuous service without reversion for well ever 15 to 20 years, the Government must be deemed to have relaxed the rules. While holding so at page 238 it was stated that: We wish to make it clear that there is no question of any rotation system being applied under the Rules, as they exist now. All appointments shall be made hereafter in accordance with the Rules and the seniority of all officers to be appointed hereafter shall be governed by Rule 9-C of the Rules. 30. In those peculiar circumstances this Court though recognised that appointment according to rules is a condition precedent, adopted the rule of deemed relaxation and deemed promotion to the service in accordance with the rules. Rule 27 of the Rules gives power to the Governor that if he is satisfied that the operation of any rule regarding conditions of service of the members caused undue hardship in a particular case; he may consult the Public Service Commission; notwithstanding anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-condition. Even otherwise the court cannot substitute its satisfaction for the satisfaction of the Governor in exercise of the power of deemed relaxation. In Narendra Chadha's case the power to relax was wide enough to cover 'any rule' and there was no pre-condition of objective satisfaction by the Governor. We hold that Rule 5(a) and (b) and Appendix 'A' and 'B' are basic rules of recruitment and would not be subject to Rule 27. 31. Accordingly we have no hesitation to held that the promotees have admittedly been appointed on ad-hoc basis as a stop-gap arrangement, though in substantive posts, and till the regular recruits are appointed in accordance with the rules. Their appointments are dehors the rules and untill they are appointed by the Governor according to rules, they do not become the members of the service in a substantive capacity. Continuous length of ad hoc service from the date of initial appointment cannot be counted towards seniority. The Governor shall have to make recruitment by promotion to substantive vacancies in the posts of Asstt. Conservator of Forest, if not already made, in accordance with Rule 5(b) read with Appendix ..... X X X X Extracts X X X X X X X X Extracts X X X X
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