TMI Blog1997 (3) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined 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 ₹ 3,500/- as tuition fees. Earlier There was a provision for payment of stipend @ ₹ 500/- per month and tour expenses of ₹ 2,400 for two years for each selected candidate sent for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oma [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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anuary 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 sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey 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 Insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir 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 Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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