TMI Blog1993 (1) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent, the promotees who were promoted in the years 1981 and 1982 ought to have been assigned a place below him as per recruitment rules. The seniority of direct recruits vis-a-vis the promotees required to be decided on the basis of the Orissa forest Service Class II Recruitment Rules, 1959. 4. It was further urged that he was recruited in the year 1979 through Public Service Commission. He had to undergo training for two years and thereafter he was appointed in the year 1981. 5. Therefore, the short question was whether the respondent was to be assigned seniority from the year 1979 (the year of recruitment) or from the year 1981 (the year of appointment). The Tribunal observed that Rule 9(a) of 1959 Rules read with Rule 6 would point out that the promotee officers were to be on probation for a period of two years like the direct recruits. Such direct recruits were also sent for training to the Forest Training College. The 1959 Rules used the word' recruited , the 1984 Rules used the word appointed . These words must be assigned proper meaning. Inasmuch as the direct recruits were to be treated as seniors to promotees ven bloc' the first respondent must be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. Having held that both the direct recruits as well as the promotees undergo probation for a period of two years, properly speaking, the period of training for the direct recruits could not count as service. That is precisely that is stated in Clause (c) of Regulation 12. If under the said Regulation the appointment to service is to commence only after the successful completion of training there is no justification whatever the conclude that the date of recruitment could be the relevant date for the purposes of reckoning the seniority. Recruitment in the submission of the learned Counsel would merely mean enlistment or selection. That is why Regulation 13 says the selected candidates . Even Rule 9 has not appreciated in its proper prospective. 13. As regards the ratio of 2/3rd and 1/3rd between direct recruits and promotees the relevant rule that is applicable is Rule 5(3). That sub-rule contains a provision: Save as otherwise decided by Government . If, therefore, it has been otherwise provided by the Government, this ratio of 2/3rd and 1/3rd does not apply. In other words, there is overriding power vested in the Government. Hence, the ratio is flexible and contemplates a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law the direct recruits are always treated on a better footing than the promotees. 16. Even though the relevant years of recruitment and promotion of persons involved are essentially of the years 1979 to 1984, yet it is 1984 Rules which will govern. 17. Rule 24 of the 1984 Rules contains the repeal and saving clauses. That says that all the officers who were appointed prior to the repeal shall be deemed to have been appointed under the provisions of 1984 Rules. If that be so, the aforesaid Explanation to Rule 16 must apply. Thus it is clear as on today the seniority by the 1984 Rules. The same has clearly provided that the date of appointment of direct recruits for the purposes of seniority will be deemed to be 2 years prior to the date of appointment to a working post. Since the normal period of training is 2 years this cannot but mean that the date if appointment of direct recruits for the purposes of seniority will be the date of selection. If seniority is not a vested right it is well-open to the Government to alter the same by making a departure from 1959 Rules and providing for the same in the amended 1984 Rules. 18. Learned counsel draws our attention to Indian For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the promotees who were confirmed by Service Commission after the recruitment of the petitioner. The scope of 1959 Rules came up for consideration and the High Court concluded that the recruitment to Class II Service was complete only after successful completion of two years training in the Forest College. Relief was granted on that basis. That came up in appeal to this Court in Civil Appeal Nos. 2051-52 of 1974 (State of Orissa v. Manorajan Rath and Ors.). By an order dated 7th of January, 1988, finding that there was no ground to interfere with the judgments the High Court, the appeals came to be dismissed 22. While the matter stood thus one of the directly recruited officers (Prakash Chandra Misra, respondent No. 1) filed a petition before the Tribunal challenging the seniority. He contended that the promotees who were promoted in the year 1981-82 ought to have been assigned a place lower than him as per recruitment rules. Two main contentions were: 1. His services should be reckoned from the date of recruitment itself and not from the date of actual appointment. Therefore, the exclusion of the period of two years' training for the purposes of reckoning the seniori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty may be determined in accordance with the positions the promoted officers held in the recommendation of Public Service Commission made according to merit. (c) In case of direct recruitment, seniority may be determined according to the achievements in the examination in the Forest Cortege. 26. Besides these rules there are also Regulations dealing with direct recruitment. It may be stated that the Regulations prescribe the condition of eligibility (Regulation 1(2)), educational qualification (Regulation 1(6)), written test by means of a competitive examination (Regulation 18(a)) and a viva voce test. The candidates are to be summoned for viva voce test on securing the minimum qualifying marks prescribed by the Commission. Thereafter the Commission prepares is list of successful candidates provided they are found fit in the physical test as prescribed under Regulation 1(5). The list of successful candidates is to be forwarded to the Government for approval. 27. Regulation 12 is important for our purposes. Under that Regulation the finally selected candidates are required to undergo two years training. During the period of pendency a consolidated monthly allowance of Rs. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus: 24. All rules and orders corresponding to these rules and in force immediately before the commencement of these rules are hereby repealed: Provided that nothing in these rules shall be construed as affecting or invalidating the appointments already made or orders issued in accordance with the provisions of any rules or orders in force immediately before the commencement of these rules and that all such appointments and orders shall continue in force and shall, as far as may be, be deemed to have been made and issued under the appropriate provisions of these rules: Provided further that Government may, by order, direct that any of the provisions of these rules shall not apply to the Officers already appointed under the rules and orders in force immediately before the commencement of these rules or shall apply to them with such modifications as the Government may specify in that order. 32. Therefore, according to him, the benefit of Explanation to Rule 16 quoted above must apply. We find it impossible to accept this contention for the following reasons: 1. Since the appointments in question have been made under 1959 Rules, 1984 Rules will be inapplicable. 2. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation list which was impugned by the first respondent before the Tribunal was prepared in pursuance of the order of this Court read with the aforementioned judgment of the Orissa High Court and this is so stated in a letter dated 4th January, 1989 written by the Deputy Secretary to the Government of Orissa, Forest, Fisheries and Animal Husbandry Department, Bhubaneshwar to the Principal Chief Conservator of Forest, Orissa, Bhubaneshwar (Annexure- II to the Special Leave Petition in S.L.P. (C) NO. 1604 of 1992). That this gradation list had been framed upon the aforesaid basis also does not appear to have been brought to the attention of the Tribunal. 37. The gradation list has been in operation over several years. We see no reason to unsettle the settled position. In this behalf we draw support from the judgment of this Court in Direct Recruit Class- II Engineering Officers' Association v. State of Maharashtra and Ors. [1990]2SCR900 . We may also note that though the same question was before this Court a little before the petition was made by the first respondent before the Tribunal, no effort was made by the first respondent to intervene and place before this Court his poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision was rendered on 3.7.87. SLP (C) No. 1624 of 1988 filed against the said decision was dismissed by this Court on 18.1.89. There was also an application, O.J.C. No. 588 of 1972 before the Orissa High Court in Manorajan Rath v. State of Orissa and Ors. The decision was rendered on 10.6.74. Against the said decision Civil Appeal Nos. 2051-52 of 1974 were preferred to this Court which were dismissed on 7.1.88. The Tribunal in the above judgment had held on perusal of the departmental file that the Government had token decision to increase the number of posts to be filled up by promotion on administrative grounds. This was necessitated because of the nationalisation of Kendu Leaf Trade. Action to fill up the posts by promotion of Forest Rangers in excess of 1/3rd of the total posts in the cadre was taken in pursuance of the decision of the Government. Though the actual decision of the Government is not produced before us yet the proceedings of the meetings of the Departmental Committee held on 5.1.80 and 7.1.80 to select Forest Rangers suitable for promotion took note of Rule 5(3) which contains the saving clause: Save as otherwise decided by Government, number of posts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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