S. D. SHAH, J. ( 1 ) THESE two petitions filed under Article 226 of the Constitution of India bring to the surface an unhealthy dispute between the direct recruits in the cadre of Assistant Conservators of Forest (Gujarat Forest Service Cl. II) and the promotees of that very cadre inter se claiming seniority and preferential promotion to each other to the post of Deputy Conservator of Forest. As usual the State Government has unfortunately contributed in confusing and confounding the issue by usual administrative lethargy and by half-hearted decisions without having overall comprehensive view of the matter. The controversy between the two warring groups ought to have been settled by earlier comprehensive solution to the problem. Since the controversy is now brought to this court by promotees by instituting Special C. A. No. 896/91 and by the direct recruits by instituting Special C. A. No. 1447/91 the same is now decided by this common judgment. ( 2 ) THE petitioners in Special C. A. No. 896/91 were on the relevant date working as Assistant Conservators of Forest since 20/10/1980 and 7/01/1980 respectively. Originally they were appointed to the post of Range Forest Officers and the said recruitment was under recruitment rules known as RANGERS (SUBORDINATE SERVICE) RECRUITMENT RULES 1969 It is their case that as required under the requirement rules they had undergone the training for Rangers course at the recognised institute for a period of two years. After successful completion for their training they were duly posted as Range Forest Officers and according to them their seniority in the said cadre was reckoned from the date of their actual posting in the said cadre after completion of two years training. In this petition (i) R. S. Ajara (ii) R. B. Zala (iii) B. A. Pandya and (iv) D. P. Tipra are impleaded as party respondents on their having applied for being impleaded as party respondents and these respondents represent class of direct recruit to the post of Assistant Conservator of Forest. It is the case of the petitioners that a provisional seniority list for the cadre of Asst. Conservator of Forest-Cl. II as on Ist January 1987 was prepared and published on 5/08/1987 and in said list the names of the petitioners appeared at Sl. Nos. 68 and 67 respectively. It is not in dispute before this Court that the names of respondent Nos. Conservator of Forest-Cl. II as on Ist January 1987 was prepared and published on 5/08/1987 and in said list the names of the petitioners appeared at Sl. Nos. 68 and 67 respectively. It is not in dispute before this Court that the names of respondent Nos. 3 to 7 did not find place in the aforesaid provisional seniority list showing seniority in the cadre of Asstt. Conservator of Forest as on Ist January 1987. It appears that a final seniority list of the cadre of Asstt. Conservator of Forest was published in Govt. Circular dated 2 7/10/1990 showing the seniority of Asstt. Conservator of Forest as on Ist January 1987 and in such final seniority list also the names of respondent Nos. 3 to 7 do not find place while names of petitioner Nos. 1 and 2 appear at Sl. Nos. 70 and 63 respectively. It may be stated that the aforesaid final seniority list of the cadre of Asstt. Conservator of Forest is the subject-matter of challenge before this Court in Spl. C. A. Nos. 3049/82 5353 2124 2214 and 877/88 which are pending before this Court for final hearing. ( 3 ) IT is the case of the promotees that based on the final seniority list which was published by the aforesaid Government circular a select list for appointment to the promotional posts of Deputy Conservator of Forest was prepared by the Government in October 1989. It is their case that recruitment to the cadre of Deputy Conservator of Forestis governed by the Statutory rules known as DEPUTY CONSERVATOR OF FORESTS (GUJARAT FOREST SERVICE) RECRUITMENT RULES 1987 The promotees therefore contend before this Court that in view of the fact that a select list to fill in the vacancies in the cadre of Deputy Conservator of Forests was already prepared the same was submitted to Gujarat Public Service Commission for its approval on 26/06/1990 and the same was approved by the Gujarat Public Service Commission on 19/07/1990. The promotees contend that from said select list which is even approved by the Gujarat Public Service Commission promotion should be given to the persons whose names are included in the select list to the cadre of Deputy Conservator of Forest and since such candidates who are selected are not being promoted they have rushed to this Court for appropriate direction to the respondent-authorities to operate the select list and to give appointment to the candidates whose names found place in the select list. ( 4 ) IT appears that the select list which was duly prepared and approved by the Gujarat Public Service Commission as back as 19/07/1990 was not operated by the Government despite the letters of request addressed by the Chief Conservator of Forests to the Government. The Government was handicapped by the fact that Civil Suit No. 699/90 was instituted in the Court of Civil Judge (S. D.) at Ahmedabad (Rural) on 8/06/1990 by some direct recruits in the cadre of Assistant Conservators of Forests wherein the legality and validity of final seniority list referred to hereinabove was challenged and prayer was made to the Court that the period spent by said direct recruits in Pre-Service Training should be considered for the purpose of computation of their seniority and that they were eligible for being considered to the post of Deputy Conservators of Forest and were illegally and unconstitutionally excluded from the zone of consideration and hence they also applied for interim relief restraining the respondent-State from operating the select list. It appears that the Trial Court has granted the interim relief of maintenance of status quo and it is because of such temporary injunction that the State was not operating the select list. It is pertinent to note that the State Government has filed written statement in the said suit wherein it has defended its action of preparation of select list and its action of excluding the period of Pre-Service training in the case of direct recruits to the cadre of Assistant Conservators of Forest for the purpose of computation of seniority. It is pertinent to note that the State Government has filed written statement in the said suit wherein it has defended its action of preparation of select list and its action of excluding the period of Pre-Service training in the case of direct recruits to the cadre of Assistant Conservators of Forest for the purpose of computation of seniority. Said written statement was initially filed on 12/12/1990 However it appears that subsequently on 8/02/1991 in the aforesaid Civil Suit the State Government filed a purshis whereby according to the promotees the State Government has taken a stand quite inconsistent with the stand taken by it in the written statement dated 12/12/1990 Because of said stand of the State Government the temporary injunction directing the State Govt. to maintain status quo which was granted by the Trial Court was vacated. There upon the promotees were required to rush to this Court and to institute Spl. C. A. No. 896/91 inter alia praying before this Court that the respondent-State should be directed to operate the select list which it has lawfully prepared and to fill in the vacancies in the cadre of Dy. Conservator of Forest by giving promotion to the candidates from said select list. In the said petition the learned single Judge of this Court on 8/02/1991 granted order of maintenance of status quo. Petition was later on admitted and interim relief for maintenance of status quo was confirmed. Said interim relief directing maintenance of status quo did not satisfy the promotees as mandatory direction directing the State Government to operate the select list was not granted and that led to filing of Letters Patent Appeal No. 89/92 which ultimately came to be withdrawn on 30/03/1992. ( 5 ) IT may be mentioned that the direct recruits instituted Spl. C. A. No. 1447/91 in the month of March 1991 for direction to respondent-State to consider the direct recruits for the post of Deputy Conservator of Forest in the light of provisions contained in the Deputy Conservator of Forests (Gujarat Forest Service) Recruitment Rules. 1987 by considering the training period as period in service. C. A. No. 1447/91 in the month of March 1991 for direction to respondent-State to consider the direct recruits for the post of Deputy Conservator of Forest in the light of provisions contained in the Deputy Conservator of Forests (Gujarat Forest Service) Recruitment Rules. 1987 by considering the training period as period in service. The case of the direct recruits in said petition is that under the statutory rules framed under proviso to Article 309 of the Constitution of India the period of two years spent by them under training is required to be computed while considering the candidates for the post of Deputy Conservator of Forests and even if their experience may fall short of 8 years by inclusion of two years training they are already rendered eligible for being considered for the post of Deputy Conservator of Forests and since they were excluded from consideration equal opportunity in the matter of employment under Article 16 of the Constitution of India was denied to them. ( 6 ) AT this stage one further development that took place is required to be mentioned. The State Government has by its Resolution No. VNM-4391 dated 31/01/1992 resolved to take into consideration the period of two years spent on training by direct recruits in the cadre of Asstt. Conservator of Forest for the purpose of determining seniority in the cadre of Asstt. Conservator of Forest and it was resolved that for direct recruits their seniority shall be determined from the date of their joining training. This Government Resolution was immediately challenged by the promotees by amending the memo of Special C. A. and therefore further challenge of the promotees is to the aforesaid Government Resolution dated 31/01/1992 on the ground it is illegal unconstitutional inasmuch as it operates retrospectively and also because it unsettles the settled right of the promotees and those candidates who were already selected and whose names were already included in the select list for the cadre of Deputy Conservators of Forests. ( 7 ) IT may be mentioned at this stage that the aforesaid select list was partially operated by the Government subject to the result of these petitions by giving promotion to the candidates belonging to SC/st. ( 7 ) IT may be mentioned at this stage that the aforesaid select list was partially operated by the Government subject to the result of these petitions by giving promotion to the candidates belonging to SC/st. This order of promotions was under the order passed by the learned Single Judge of this Court and it cannot be said that said select list was operated by the State Government despite pendency of these petitions. Statutory Rules: ( 8 ) HAVING set out the controversy between these two warring groups of officers it would be necessary to refer in the statutory rules framed under the proviso to Article 309 of the Constitution of India for recruitment to various classes of Gujarat Forest Services. It may be stated that the lowest cadre is that of Forester from which promotion can be had to the the post of Forest Ranger. For the post of Forest Ranger recruitment is governed by the Statutory Rules which are known as Rules of Recruitment for Rangers 1969 From the cadre of Ranger next stage of promotion is to the post of Asstt. Conservator of Forest and recruitment to the said post is governed by the Statutory rules known as Assistant Conservator of Forest (Gujarat Forest Service Cl. II) Recruitment Rules 1981. The next stage of promotion is to the cadre of Deputy Conservator of Forests and the recruitment to the said post is governed by the recruitment rules framed under Article 309 of the Constitution of India known 25 Deputy Conservator of Forest (Gujarat Forest Service Cl. I) Recruitment Rules 1987 In order to appreciate the submissions of learned Counsel appearing for the pal ties in my opinion it would be necessary to have a birds eye view of the relevant rules from the aforesaid rules. 9 Recruitment Rules of Rangers 1969 inter alia provide that the post of Ranger in the lower subordinate forest services shall be filled in either by (i) promotion of person of proved merit and efficiency from amongst Foresters or (ii) direct selection. Rule 10 of the said Rules being relevant is reproduced herein:"10 The candidate finally selected will be required to undergo training for the Rangers Course at the Northern Forest Ranger College Dehradun or Southern Forest Ranger College Coimbatore for a period of two years". Rule 10 of the said Rules being relevant is reproduced herein:"10 The candidate finally selected will be required to undergo training for the Rangers Course at the Northern Forest Ranger College Dehradun or Southern Forest Ranger College Coimbatore for a period of two years". It becomes clear from the aforesaid Rule 10 that the direct recruit to the post of Ranger is required to undergo training for the Ranger Course for a period of two years. The training is at the Govt. s cost and under Rule 11 it is stipulated that during the period of training the candidate shall receive stipend equipment and other allowances as the Government may decide from time to time. Rules 13 and 14 being relevant are reproduced herein:13 On successful completion of training course from the Rangers college the candidate shall be appointed as a Ranger if he passes with higher standard certificate and as a Forester if he passes with lower standard certificate. 14 The seniority of the Rangers shall be governed by their respective ranks in the final examination irrespective of the date of joining the servicefrom Rule 13 it becomes clear that on successful completion of training the candidate shall be appointed to the post of Ranger. Rule 14 prescribes a rule of seniority amongst the direct recruits by their respective ranks in the final examination irrespective of the date of joining service. It is pertinent to note that in the cadre of Ranger by Statutory Rule a provision is made for determining the seniority at least amongst direct recruits by providing that they should get seniority as per their ranks in the final examination. It also becomes clear that the training prior to appointment for a specified period appears to be essential for direct recruit both for the cadre of Ranger as well as Asstt. Conservator of Forest. ( 9 ) THE second set of rules are the Statutory Rules which deal with the cadre of Asstt. Conservator of Forest. The recruitment rules for Asstt. Conservator of Forest inter alia provide that such post shall be filled in either (i) by promotion of a person of proved merit and efficiency from amongst the persons working as Range Forest Officer or (ii) by direct selection. Rule 4 of said rules prescribes the criterion of eligibility for appointment by direct selection to the post of Asstt. Conservator of Forests. Rule 4 of said rules prescribes the criterion of eligibility for appointment by direct selection to the post of Asstt. Conservator of Forests. The Rule 5 of the said Rules prescribes the ratio of 2 in which the appointment by promotion and direct selection are to be made. Rule 6 of the aforesaid rules being material is reproduced herein:"6 The selected candidate shall be 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 that institution. Government shall pay an annual sum of Rs. 3 500 as tuition fees stipend of Rs. 500. 00 p. m. and tour expenses of Rs. 2 400 for two years for each candidate selected for training subject to the condition that he executes agreement with two sureties binding himself to work deligently for such institution and serve Government for not less than 5 years after obtaining a Diploma (Degree) in Forestry from the institution and refund all the money expended by the Government on his training at the institution with interest at 6 per cent per annum if he fails to carry out the terms and found unsuitable for employment due to misconduct. Government may prescribe the institute at which the candidate should undergo the training in Forestry. From the aforesaid rule it becomes clear that a candidate who is selected for the post of Asstt. Conservator of Forests shall have to undergo a course in Forestry for two years at an institution recognised by the Government and to obtain a Diploma (or Degree) in Forestry from that institution. It is clear that for direct recruits such training is statutorily compulsory and is essential. ( 10 ) RULE 8 of the said Rules once again being material for the purpose of this judgment is reproduced herein:"8 On satisfactorily completing the course of training prescribed in Rules 6 and 7 the selected candidates shall be appointed to Cl. II of the Gujarat Forest Service as Asstt. Conservators of Forests on probation for two years". From the said rule it becomes clear that a candidate so selected on satisfactory completion of course of training shall be appointed to Cl. II of the Gujarat Forest Service as Asstt. Conservators of Forests on probation for two years". From the said rule it becomes clear that a candidate so selected on satisfactory completion of course of training shall be appointed to Cl. II post on probation for two years and it is this rule which is pressed into service by the promotees to bring home the point that it is only after satisfactory completion of course of training as stipulated by Rule 6 that the directly recruited trainees are eligible for being appointed to the post of Asstt. Conservator of Forests and that therefore the period spent by them on training cannot be and should not be computed towards service. ( 11 ) BEFORE I part with discussion on recruitment rules of Asstt. Conservators of Forests it is necessary to refer at this stage of the fact that under Rule 6 (quoted above) of the said Rules when a selected candidate is sent for training for a period of two years he was required to be paid a sum of Rs. 3 500 p. a. as tuition fee stipend of Rs. 500. 00 p. m. and tour expenses of Rs. 2 400 for two years. The aforesaid requirement stands modified by the subsequent Govt. Resolution dated 31/03/1982 It is now stipulated that all directly recruited Asstt. Conservators of Forests trainees shall draw the minimum of their time scale of pay in that post i. e. Rs. 700-1300 together with admissible allowances thereof with immediate effect. After successful completion of training and probation period their pay will be fixed as per Rules in force and no stepping up of pay will be given to such incumbent. The aforesaid Govt. Resolution is actually implemented though the statutory rules are not accordingly amended and it is not disputed before this Court that the direct recruits to the cadre of Asstt. Conservator of Forests during the period of their training were being paid minimum time scale of pay and allowances thereof as stipulated by the said Govt. Resolution. ( 12 ) THAT bring me to the Statutory Recruitment Rules for the cadre of Deputy Conservator of Forests. Rule 2 of the said Rules of 1987 being material is reproduced herein:2 Appointment to the post of Deputy Conservator of Forests Gujarat Forest Service Cl. Resolution. ( 12 ) THAT bring me to the Statutory Recruitment Rules for the cadre of Deputy Conservator of Forests. Rule 2 of the said Rules of 1987 being material is reproduced herein:2 Appointment to the post of Deputy Conservator of Forests Gujarat Forest Service Cl. I shall be made by promotion of a person of proved merit and efficiency from amongst the persons holding the posts of Asstt. Conservators of Forests Gujarat Forest Service Cl. II and who have put in at least eight years service (including training period in the Forest College) on the post of Asstt. Conservator of Forests:provided that where an appointing authority is satisfied that a person having an experience specified above is not available for promotion and that it is in public interest to fill up the post by promotion of a person having experience of a lesser period it may for reasons to be recorded in writing promote such person who has experience for a period not less than two-thirds of the period specified above. From the aforesaid Rule 2 it becomes clear that it deals with appointment to the post of Deputy Conservator of Forests and it prescribes eligibility criterion for the post of Dy. Conservator of Forests. In order to be appointed to the post of Dy. Conservator of Forests the incumbent must be: (1) Asstt. Conservator of Forests having put in at least 8 years of service in the said cadre of Asstt. Conservator of Forests and a person with proved merit and efficiency. How that 8 years period of service to be computed is explicitly provided by Rule 2 by providing that the period of training in the Forest College will be included and therefore no room for doubt is left by the Statutory rule that the period spent by the Asstt. Conservator of Forests in training in any Forest College shall have to be treated as period spent in service so as to apply eligibility criterion of 8 years. The proviso to the said Rule makes provision for relaxation i. e. where a person of requisite experience is not available for promotion and when it is in public interest to fill up the post by promotion for the reasons to be recorded in writing requirement of experience can be relaxed. ( 13 ) IT is pertinent to note that the recruitment rules for Dy. ( 13 ) IT is pertinent to note that the recruitment rules for Dy. Conservator of Forests simply deal with the recruitment to the said cadre by prescribing eligibility of candidates and by prescribing criterion based on which the selection is to be made. It cannot be said that the said rules prescribe any criterion for fixation of seniority in the cadre of Dy. Conservator of Forests and obviously if the title of the Rules is seen same cannot be read as fixing any criterion of seniority in the said cadre. ( 14 ) AT this stage before setting out the rival submissions of the promotees and direct recruits it will be necessary to reproduce the gist of the text of Govt. Resolution dated 31/01/1992 inasmuch as it is this resolution which is the focus of attention in these petitions. Government Resolution dated 31/01/1992 ( 15 ) IN Indian Forest Services the officers selected by direct recruitment are sent for training for Diploma course in Forestry and their training period is taken into consideration for the purpose of probation period and seniority. The Govt. of India has vide letter dated 17/11/1981 suggested to the State Govts. to treat the period of training in the cadre of Asstt. Conservator of Forests as part of their service. Pursuant to suggestion/direction of the Govt. of India many State Governments have issued orders for treating the period of training of direct recruits in the post of Asstt. Conservator of Forests as part of their service. ( 16 ) UNDER Note 2 of Rule 15 of Forest Manual Part-I the period of training is taken into consideration for computing pensionable service. During the period of training the trainees should also be paid timescale of pay in the cadre of Asstt. Conservator of Forests. By Notification dated 8/05/1987 issued by the Forest and Environment Department as per the amendment made in the recruitment rules of Deputy Conservator of Forests the period of training is to be computed while computing minimum experience. Taking into consideration the aforesaid reasons the question of period of training as part of service for the purpose of seniority was under active consideration of the Government. Having considered and scrutinised all the aspects of the matter it is decided to treat the period of training of direct recruits in the cadre of Asstt. Taking into consideration the aforesaid reasons the question of period of training as part of service for the purpose of seniority was under active consideration of the Government. Having considered and scrutinised all the aspects of the matter it is decided to treat the period of training of direct recruits in the cadre of Asstt. Conservator of Forests as part of their service and hence it is resolved that the period spent in training by the direct recruits in the cadre of Asstt. Conservator of Forests shall be taken into consideration for the purpose of seniority. The seniority of direct recruits of 1979 and thereafter selected in the cadre of Asstt. Conservator of Forests shall be determined from the date they were sent for training. It is further stipulated that the provisional seniority list which was prepared shall have to be prepared afresh and a fresh seniority list shall have to be published. ( 17 ) FROM the aforesaid text of the Govt. Resolution dated 31/01/1992 it becomes clear that the Govt. has by then decided to treat the period of training of direct recruits in the cadre of Asstt. Conservator of Forests as part and parcel of their service for the purpose of determining their seniority. The period of training spent by direct recruits of the cadre of Asstt. Conservator of Forests was even otherwise required to be taken into consideration under the Recruitment Rules of Dy. Conservator of Forests 1987 for the purpose of assessing their eligibility for the post of Dy. Conservator of Forests. The Government has while issuing the aforesaid Govt. Resolution taken into consideration the following factors: (I) In Indian Forest Service the period of training of direct recruit is taken into consideration both the purposes of period of probation and seniority. (II) The Govt. of India has issued direction/suggestion to the State Governments to consider the period of training of Asstt. Conservator of Forests as period spent on duty and such suggestion of the Govt. of India is accepted by number of State Governments. (III) Under Rule 15 of Forest Manual Part-I the period of training is taken into consideration for the purpose of determining pensionable service. (IV) During the period of training the direct recruits in the cadre of Asstt. Conservator of Forests are being paid the minimum time-scale of pay and other allowances. (V) The Recruitment Rules for the cadre of Dy. (III) Under Rule 15 of Forest Manual Part-I the period of training is taken into consideration for the purpose of determining pensionable service. (IV) During the period of training the direct recruits in the cadre of Asstt. Conservator of Forests are being paid the minimum time-scale of pay and other allowances. (V) The Recruitment Rules for the cadre of Dy. Conservator of Forests are suitably amended so as to provide that the period of training of two years of direct recruits in the cadre of Asstt. Conservator of Forests shall be computed towards their experience for the purpose of assessing their eligibility. ( 18 ) BASED on the aforesaid five factors which are stated clearly in the preface of the resolution the Government has decided to treat the period of training of direct recruits in the cadre of Asstt. Conservator of Forests as period in service for the purpose of seniority and in my opinion the decision of the Government cannot be faulted or struck down on the ground that the aforesaid factors are extraneous or non-germane to issue. It also cannot be said that the issuance of such resolution is mala fide or suffers from non-application of mind. It shall have to be accepted that the Govt. has taken into consideration all the relevant and germane factors and has after due consideration of such factors taken a conscious decision that the period of training of direct recruits in the cadre of Asstt. Conservator of Forests shall have to considered for determining their seniority. ( 19 ) HOWEVER I must point out that the challenging of promotees to this Govt. Resolution dated 31/01/1992 is based on some other factors which will be set out hereinafter when I will set out submissions of learned Counsel for the promotees against the legality and validity of the aforesaid resolution. ( 20 ) IT will not be out of place at this stage to make reference to the letter dated 17/11/1981 which was explicitly referred to by the Government in its resolution. It is a letter addressed by the President of Forest Research Institute and Colleges Dehradun to the Secretary Forest Department Govt. of India. Copy of said latter was made available to the Court by the learned Counsels of the parties and authenticity of said letter is no doubt by any one of them. By the said letter the Secretary Forest Department Govt. of India. Copy of said latter was made available to the Court by the learned Counsels of the parties and authenticity of said letter is no doubt by any one of them. By the said letter the Secretary Forest Department Govt. of India is informed by the President of Forest Research Institute and Colleges Dehradun that he has received complaints from the trainees. That since the trainees were not treated as in-service trainees they were suffering great hardship in the matter of meeting their expenditure for training. He has also pointed out that since two years training of such trainees was not being considered as part of their service they were losing their seniority as ultimately such seniority was material for the purpose of promotion in Indian Forest services. An alternative suggestion was also made that some States initially appoint the trainees and thereafter send them for training. Even in Indian Forest Services the trainees are appointed in service before joining the training college and therefore he has recommended that there was very strong case for the trainees to be treated as in-service trainees from the date they are selected by the respective State Public Service Commission. . ( 21 ) FROM the gist of the aforesaid letter it can be said that a strong recommendation was made in favour of trained to treat the period spent by the trainee on training as part and parcel of his service and also to give due weightage to such training period for the purpose of seniority. How that could be achieved is also suggested i. e. by first making order of appointment and thereafter sending the persons for training or secondly by giving due weightage to the period of training for the purpose of seniority. This letter has its own significance as it is addressed by the President of Forest Research Institute and Colleges to the Secretary Forest Dept. Govt of India and secondly because such recommendation if considered and accepted cannot be said to be a factor irrelevant or non-germane to the issue. Submission of Promotees: ( 22 ) MR. S. N. Shelat learned Counsel for the promotees with characteristic precision and absolute clarity about the issues very vehemently submitted before this Court that the Govt. Govt of India and secondly because such recommendation if considered and accepted cannot be said to be a factor irrelevant or non-germane to the issue. Submission of Promotees: ( 22 ) MR. S. N. Shelat learned Counsel for the promotees with characteristic precision and absolute clarity about the issues very vehemently submitted before this Court that the Govt. Resolution dated 31/01/1992 was liable to fail and was required to be voided as the same was arbitrary capricious discriminatory and unreasonable and violative of Articles 14 and 16 of the Constitution of India. It was arbitrary because (I) it affected the vested right of the promotees in the cadre of Asstt. Conservator of Forests (petitioners) whose seniority was finalised by publication of final seniority list as back as 22/10/1988 (II) it affected the right of the promotees in the cadre of Asstt. Conservator of Forests who were already selected and empanelled in the select list which was duly prepared in accordance with law and which was duly approved by the Gujarat Public Service Commission as back as 19/07/1990 and who were just waiting for their turn for promotion on operation of the said list; (III) it was inconsistent with or contrary to the rules of recruitment for the post of Asstt. Conservator of Forests as in his submission the said rules provide for the date of appointment and no life can be given to a person who is not appointed to the post of not born in the cadre; (IV) the Government Resolution in substance was trying to amend the Statutory Rules namely Recruitment Rules for the cadre of Asstt. Conservator of Forests and to the extent the executive fiat was trying to amend the Statutory Rules to the prejudice of the promotees the same was bad; (V) even if the validity of the Government Resolution is accepted it cannot be permitted to have retrospective operation so as to retrospectively affect and defeat the accrued rights of the senior Asstt. Conservator of Forests whose seniority was well-accepted as back as 1988; and (VI) the vacancies in the cadre of Dy. Conservators of Forests are always to be filled in accordance with rules existing at the relevant time and since number of vacancies existed in the year 1988 Seniority of the Asstt. Conservator of Forests whose seniority was well-accepted as back as 1988; and (VI) the vacancies in the cadre of Dy. Conservators of Forests are always to be filled in accordance with rules existing at the relevant time and since number of vacancies existed in the year 1988 Seniority of the Asstt. Conservator of Forests shall have to be determined by reference to that year in accordance with the rules of seniority then existing and not by reference to the Government Resolution which is issued in the month of January 1992 ( 23 ) MR. S. N. Shelat learned Counsel for promotees had tried to make good the aforesaid submissions by reference to a large number of decisions to which reference will be made hereinafter at appropriate place submission of learning counted for direct recruits ( 24 ) M/s. Naik and Sinha have quite elaborately and vehemently submitted before this court that the select list for the cadre of Deputy Conservators of Forests which was prepared in the year 1989 was contrary to the recruitment rules for the cadre of Deputy Conservators of Forests inasmuch as the persons eligible for said post were excluded from consideration for the select list. They further submitted that the select list for the cadre of Deputy Conservators of Forests was prepared presumably on the basis of seniority list of the cadre of Assistant Conservators of Forests and since the direct recruits in the cadre of Assistant Conservator of Forests (like the petitioners) who have not completed eight years of service were excluded from the seniority list (provisional as well as final) a class of eligible candidates for being considered for the cadre of Deputy Conservators of Forests was systematically excluded from consideration and therefore not only the seniority list of the cadre of Assistant Conservators of Forests was bad but the select list which was based on that seniority list is also bad and unconstitutional. They have further submitted that since the recruitment rules for the cadre of Assistant Conservators of Forests or for the cadre of Deputy Conservators of Forests do not enact any rule for fixation of seniority and since there were no specific executive instruments for the purpose of determining as to how the seniority for the cadre of Assistant Conservators of Forests has to be fixed in fact no vested right in favour of any class of employees existed The question of fixing seniority was as such in a flux and therefore if the Government for the first time issues resolution dated 31/01/1992 which was well within its power it cannot be described as affecting any vested right of the promotees. They also submitted that the promotees and direct recruits might be selected at the same time at same selection by the Gujarat Public Service Commission or any competent selection board the promotees will get the appointment as they had also had the training in the cadre of Ranger while the direct recruits will be sent for training Therefore the direct recruits will be adversely affected if the period of training is excluded from consideration and that was the reason why rule making authority while enacting rules of 1987 has stipulated that the period spent on training is to be taken into consideration while counting the experience of Asstt. Conservators of Forests. It is therefore submitted that if the period of training is to be treated as part and parcel of service for the purpose of counting the experience and if the period of training is taken into consideration for the purpose of pension and other benefits there was no earthly reason to exclude that period from consideration for the purpose of fixing seniority. They also submitted that if two years period of training of direct recruits is taken into consideration for the purpose of seniority no prejudice is likely to be caused to the promotees because even otherwise according to them the said period of two years training is to be counted towards service for the purpose of experience and such direct recruits are to be treated as eligible. Therefore if such candidates are eligible for being considered for the post of Dy. Therefore if such candidates are eligible for being considered for the post of Dy. Conservators of Forests they cannot be excluded by preparing seniority list in such a manner so as to count their seniority from the date of their appointment and to post them far below in the seniority list. The resultant effect according to learned Counsel would be that a direct recruit Asstt. Conservators of Forests who is by operation of Rule 2 of Dy. Conservators of Forests Rules eligible for consideration for the post of Dy. Conservators of Forests would be excluded from consideration despite his eligibility as promotees who are placed higher up in the seniority list may come within the zone of consideration while preparing the select list for Deputy Conservators of Forests. They further submitted that the Government Resolution dated 31/01/1992 has no retrospective effect nor does it effect the vested right. It simply has retrospective operation. They therefore submitted that the select list which was prepared by excluding the direct recruits from zone of consideration was required to be quashed and set aside with further direction to respondents to prepare the select list afresh in accordance with law stand of the Government. ( 25 ) THE stand of the Government in this case in affidavit-in-reply is that it has considered the entire issue and has taken a conscious decision by issuing Government Resolution dated 31/01/1992 and since it is the practice in number of States as well as the practice in All India Forest Services it has decided to consider the period of two years training of Assistant Conservators of Forests as period in service for the purpose of fixing seniority. It is their case that prior to 31/01/1992 there was no statutory rule nor was any executive instruction to the effect that seniority in the cadre of Assistant Conservator of Forests shall be fixed by reference to the date of appointment in the cadre. Therefore by issuing Government Resolution dated 31/01/1992 the Government has not affected any vested or accrued right of any employee In substance the aforesaid stand of the Government before this Court supports the case of the direct recruits and rejects the case of the promotees. Therefore by issuing Government Resolution dated 31/01/1992 the Government has not affected any vested or accrued right of any employee In substance the aforesaid stand of the Government before this Court supports the case of the direct recruits and rejects the case of the promotees. It is also required to be noted that this stand of the Government before this Court is inconsistent with the stand which it had taken before the Court of Civil Judge (S. D.) Ahmedabad (Rural) Mirzapur in the Civil Suit instituted earlier in point of time by the direct recruits. However such stand was taken by the Government prior to passing of Government Resolution dated 31/01/1992 and it is its case before this Court that after due discussion and deliberations and after taking into consideration all the relevant and germane factors and also after taking into consideration the practice prevailed it in number of other States as well as in All India Forest Services it has taken the decision. To my mind no importance could be attached to the fact that the stand of the Government before the Civil Court was inconsistent with the stand it has now taken before this Court. ( 26 ) THAT brings this Court to the question as to whether the select-list prepared by the respondents for promotion to the post of Deputy Conservator of Forests dated 27-10-1988 is legal and valid so as to entitle the promotees (petitioners in Special Civil Application No. 896 to relief of issuance of directions to the respondents to operate the said select-list and to give promotion to the post of Deputy Conservator of Forests from the said select-list. The direct recruits (petitioner in Special Civil Application No. 144/91) have on the other hand contended that the select-list which was prepared for promotion to the post of Deputy Conservators of Forests is not legal and valid and that the respondents are required to be directed not to operate the select-list and to prepare a fresh select-list for promotion to the post of Deputy Conservators of Forests. The aforesaid submissions necessarily require this Court to decide as to whether the select-list prepared by the respondents for giving promotion to the post of Deputy Conservator of Forests dated 27/10/1988 Annexure D is legal and valid so as to create absolute vested right in favour of persons whose names are included in the select-list for being promoted to the higher post. If answer to the aforesaid question is in the negative it shall have to be decided as to whether the directions to the respondents for preparing fresh select-list shall have to be given and what can be the nature of such directions. The question of preparation of select-list would incidentally also require this Court to go into the question of preparation of seniority list based on which presumably the select-list is prepared. This would also require this Court to decide as to what was the principle for fixation of seniority prior to coming into force of the aforesaid Recruitment Rules and as to how the seniority in the cadre of Assistant Conservators of Forests was fixed and should be fixed. Validity of Select-list dated 27-10-1988 and Principle for determining Seniority in the Cadre of Asstt. Conservator of Forests: ( 27 ) THERE is no dispute about the fact that the provisional seniority list of Gujarat Forest Service-Cl. II as it stood on 1/01/1972 was published by the Government by its Resolution No. GFS-1372-70338 P. dated 22-9-1972. It appears that the General Administration Department has laid down in the principles for fixation of seniority between the direct recruits and the promotees vide its Govt. Resolution No. SNR-1183-1222-G-2 dated 4/12/1986. Based on said principles the Government has prepared and published the provisional seniority list of G. F. S. CI. II as on 1/01/1987. The said provisional seniority list was published on 5/08/1987 and is Annexure C to Spl. C. A. No. 896/91. It appears that the aforesaid provisional seniority list came to be challenged before this Court by direct recruits by instituting Spl. C. A. No. 877/88. The said petition is admitted and is pending for final hearing. ( 28 ) THE Government has thereafter published a final seniority list of Asstt. Conservators of Forests on 27/10/1988. Said final seniority list of promotees and directly recruited Asstt. C. A. No. 877/88. The said petition is admitted and is pending for final hearing. ( 28 ) THE Government has thereafter published a final seniority list of Asstt. Conservators of Forests on 27/10/1988. Said final seniority list of promotees and directly recruited Asstt. Conservators of Forests showing their position as on 1/01/1987 is prepared on the basis of criterion laid down by the Government in its Resolution dated 4/12/1986. The said final seniority list also appears to be the subject-matter of challenge before this Court though it is not necessary to refer to the details of said litigation on this petition at this stage. ( 29 ) IT is also required to be noted that the Government has thereafter prepared one other seniority list after taking into account the representation made against the principles underlying the seniority list published on 27/10/1988 The third list was prepared as a provisional seniority list of the cadre of Asstt. Conservators of Forests and the same was provisionally published on 8/01/1990 under Government (Forest and Environment Department) Resolution No. FST-4383-7075-V (1 ). It is the stand of the Government that no seniority list has been finally prepared and published on the basis of provisional seniority list which was published on 8/01/1990 ( 30 ) AT this stage it can be said that there are two provisional seniority lists and one final seniority list for the cadre of Asstt. Conservators of Forests. Based on the second provisional list dated Janu 8/01/1990 no final seniority list is prepared and published by the Government. It is also not disputed before this Court by the parties that in the first provisional seniority list as well as in the final seniority list of 27/10/1988 the names of direct recruits (petitioners before this Court) do not appear and the reasons of their exclusion are not known to this Court. Neither Mr. S. N. Shelat learned Advocate for promotees nor Mr. B. B. Naik and Mr. Sinha learned Counsels for direct recruits is in a position to state as to why the names of the direct recruits who are petitioners before this Court are not included in the seniority list showing their seniority as on 1/01/1987 It cannot be disputed that once a direct recruit is appointed in the cadre of Asstt. Conservator of Forests his position in the seniority list must be reflected in the seniority list. Conservator of Forests his position in the seniority list must be reflected in the seniority list. However for the reasons which are not very clear the position of direct recruits like the petitioners is not at all reflected in the first provisional seniority list dated 5/08/1987 as well as in the final seniority list of cadre of Asstt. Conservators of Forests dated 17/10/1988 and to that extent the aforesaid lists cannot be said to be exhaustive and complete. I do not express my opinion about their legality and validity but one glaring facts stores in the mind of this Court and that fact is that both those lists are the lists wherefrom direct recruits like the petitioners are at least excluded. Therefore the aforesaid two seniority lists provisional as well as final prepared by the respondents for the cadre of Asstt. Conservators of Forests cannot provide foundation or basis for preparation of select-list for the cadre of Deputy Conservators of Forests inasmuch as from the said seniority list number of direct recruits are excluded. ( 31 ) FROM the preface to the Notification whereby the first provisional seniority list is published or notified it becomes clear that inter se seniority of promotees and direct recruits in the cadre of Asstt. Conservator of Forests is fixed on the basis of principles laid down by the Government vide its Resolution dated 4/12/1986 ( 32 ) MR. S. N. Shelat learned Advocate for promotees has strenuously urged before this Court that when the final seniority list was published vide Govt. Resolution dated 27/10/1988 for the cadre of Asstt. Conservators of Forests the seniority of the petitioners as promotees in the said cadre was finally fixed and in his submission such seniority was fixed on the basis of date of appointment of promotees in the cadre of Asstt. Conservators of Forests. He submitted that therefore the date of appointment in the cadre is the basis based on which the seniority in the cadre of Asstt. Conservators of Forests is to be determined and was rightly determined by the Government by issuing aforesaid final seniority list. In his submission once the seniority list is finally fixed on the basis of date of appointment in the cadre a vested right is created in the employee to retain his seniority and to earn the fruit of promotion based on said seniority. In his submission once the seniority list is finally fixed on the basis of date of appointment in the cadre a vested right is created in the employee to retain his seniority and to earn the fruit of promotion based on said seniority. He submitted that such principle of seniority which was laid down by the Government by its Resolution dated 4/12/1986 cannot be upset or set at naught by the respondents by subsequently passing Govt. Resolution dated January 31 1892 In his submission this would amount to adversely affecting the settled seniority of the promotees and consequent chance of promotion and that such an exercise cannot be undertaken by the respondent by issuing an executive fiat without amending the Statutory Rules. He further submitted that in fact the principle of determining seniority in the cadre of Asstt. Conservators of Forests also flows from the Recruitment Rules for Asstt. Conservators of Forests and that principle is that the seniority should be fixed by reference to the date of appointment in the cadre of Asstt. Conservators of Forest. ( 33 ) MR. S. N. Shelat Ld. Counsel for promotees has invited the attention of this Court to the decision of the Supreme Court in the case of Ashok Gulati v. D. S. Jain reported in AIR 1987 SC 424 to contend that according to accepted canons of Service Jurisprudence the seniority of a person appointed must be reckoned from the date he becomes member of the service. The date from which seniority is to be reckoned may he laid down by the Rules or Instructions on the basis of (i) date of appointment (ii) confirmation (iii) regularisation of service (iv) length of service or (v) any other reasonable basis. He therefore submitted that ordinarily it is the date of appointment which is relevant for the purpose of reckoning the seniority and in his submission since the promotees were appointed in the cadre of Asstt. Conservators of Forests on the date on which they came to be appointed on said post they would rank higher in the seniority list than the direct recruits who despite their selection in the cadre of Asstt. Conservators of Forests are not actually appointed till they undergo two years training as stipulated by the Statutory Rules. He very vehemently submitted before this Court that the direct recruits in the cadre of Asstt. Conservators of Forests are not actually appointed till they undergo two years training as stipulated by the Statutory Rules. He very vehemently submitted before this Court that the direct recruits in the cadre of Asstt. Conservators of Forests are not born at all in the cadre so long as they are not regularly appointed after completion of training and therefore their seniority in the cadre can be fixed only after they are regularly appointed in the cadre of Asstt. Conservators of Forests. He submitted that neither the Court nor the Government can inject life into a person when he was not born in the cadre. He very vehemently submitted that the Court shall so consture statutory rules and the executive instruction as to make the statutory rules effective and the executive instruction inconsistent with such rules nugatory. In his submission Rule 8 of the Recruitment Rules of Asstt. Conservators of Forests provides that the date of appointment is the relevant date for the purpose of fixing seniority in the cadre of Asstt. Conservators of Forests. ( 34 ) THE aforesaid submission of Mr. Shelat learned Advocate for promotees. though may appear to be quite attractive at the first blush cannot stand judicial scrutiny and shall have to be rejected. It shall have to be kept in mind that no clear-cut principle of seniority is prescribed by the Recruitment Rules of Assistant Conservators of Forests. Except the Recruitment Rules of Assistant Conservators of Forests admittedly there are no other Statutory Rules providing for fixation of seniority in the cadre of Assistant Conservators of Forests. The submission of Mr. Shelat is that Rule 8 of the said Recruitment Rules impliedly provides the principle based on which the seniority is fixed cannot be accepted. From the text of Rule 8 which is already reproduced hereinabove it becomes clear that the Rule 8 stipulates that on completion of training selected direct recruit shall be appointed to Class II post of Gujarat Forest Services as Assistant Conservators of Forests on probation for two years Because of this Rule Mr. Shelat submits that the direct recruits is appointed on the post of Assistant Conservator of Forests for the first time after successful completion of training of two years In his submission the period of training cannot be regarded as period spent in service. Shelat submits that the direct recruits is appointed on the post of Assistant Conservator of Forests for the first time after successful completion of training of two years In his submission the period of training cannot be regarded as period spent in service. The question which this Court is required to consider is as to: Whether a candidate who is selected by the Gujarat Public Service Commission for the post of Assistant Conservator of Forest can be said to have been born on the cadre on any date prior to his appointment in the cadre ? The promotees submit that such a selected direct recruit is born in the cadre only on the date on which he is appointed after successful completion of training while direct recruits contend that such selected direct recruit is born in the cadre on the date he is selected or on the date he joins the training.( 35 ) IN my opinion Rule 8 of the Recruitment Rules for Assistant Conservators of Forests does not prescribe any rule of seniority but it only prescribes the requirement of giving appointment/posting to a direct recruit on his completion of successful training. This Rule does not prescribe that for all purposes the direct recruits are to be treated as having been born in the cadre only when they have satisfactorily completed the training. The primary object of enacting the Recruitment Rules of Assistant Conservators of Forests was to see as to how appointments are to be made in the cadre of Assistant Conservators of Forests. Ordinarily therefore such Rule cannot be construed as prescribing any rule of seniority or any rule prescribing any criterion of seniority between the direct recruit and the promotee. It is also required to be noted that the rule-making authority was conscious of the fact that the Rules which provide for recruitment/appointment simpliciter are different from the Rules which provide for fixation of seniority. In fact the Rangers (Subordinate Forest Services ) Recruitment Rules 1969 clearly bring out this fact Rules 13 and 14 of the Recruitment Rules for Rangers are relevant Rule 13 is closely parallel to Rule 8 of Recruitment Rules for Assistant Conservators of Forests Rule 14 of the Recruitment Rules for Rangers provides that the seniority of the Rangers shall be governed by their respective ranks in the final examination irrespective of the date of joining service. This clear principle for fixation of seniority is prescribed by Rule 14. The said Rule is not enacted while enacting the Recruitment Rules for Assistant Conservators of Forests. The legislature being conscious about the distinction between Recruitment Rules simpliciter and Rules providing for fixation of seniority has in its wisdom omitted to provide a specific rule of seniority for the cadre of Assistant Conservators of Forests. It could have legitimately provided at Rule identical to Rule 14 of the Recruitment Rules of Rangers and this omission is purposive and deliberate. In fact the Recruitment Rules do not always provide for seniority Truly speaking the Recruitment Rule must be concerned with the recruitment to the cadre and nothing beyond that From this point of view and from the fact that the legislature has omitted to enact Rule identically to Rule 14 of Recruitment Rules for Rangers in my opinion there is no room for doubt that the Rule 8 of the said Rules cannot be construed as rule prescribing the criterion for fixing seniority. In fact the Rule 8 simply refers to the direct recruits and it does not refer to the promotees. Therefore to read a principle of seniority in Rule 8 for fixing seniority of promotees and direct recruits inter se is to read too much in the Rule and therefore I hold that the Rule B of the Recruitment Rules of Assistant Conservators of Forests cannot be read as rule prescribing principle of seniority. In fact Rule 8 can be properly construed if the word posting is substituted with the word appointed In fact Rule 8 contemplates that If a direct recruit who has been sent for training is to be given posting in the cadre of Assistant Conservator of Forests on his successful completion of training If the Rule is so read it would fit in or it could be harmoniously construed with Rule 6 and other Rules. ( 36 ) MR. Shelat has tried to fortify his submission by contending that the training given to the directly recruited candidate is not in-service training Rule 6 inter alia provides for the requirement of undergoing the course of Forestry for two years at an institution recognised by the Government. After successful completion of such training Rule 8 contemplates that a directly recruited candidate is to be appointed on the post of Assistant Conservator of Forests. After successful completion of such training Rule 8 contemplates that a directly recruited candidate is to be appointed on the post of Assistant Conservator of Forests. Therefore it is strenuously urged before this Court by Mr. Shelat that the training given to such candidate is pre-service training and not in-service training. In Indian Forest Services a directly recruited candidate is first appointed to the cadre and therefore sent for training Such training will be regarded as in-service training and that shall be conducted as part and parcel of his service. It is pertinent to note that in case of some other States also similar pattern is followed and therefore the time spent in training is regarded as period of service. However in the Gujarat Forest Services a directly recruited candidate is first sent for training and on successful completion of training for two years he is appointed in the cadre. Therefore it is submitted that at least in Gujarat Forests Services the rule-making authority never wanted to treat the period spent on training as period in-service In my opinion the aforesaid distinction sought to be made out between pre-service training and in-service training is not of any significance and it is a distinction without any material for the following reasons. (I) A directly selected candidate on his joining training is to be provided minimum time-scale of pay with other allowances as provided by the Government Resolution dated 31/03/1982 The liability to pay minimum time-scale of pay to such a directly selected candidate is thus incurred by the State which is comparable with its liability to pay minimum time-scale of pay to a promotee who is promoted to the post of Assistant Conservator of Forests. Therefore so far a employer is concerned it has not made any distinction between the candidates joining training and the promotees who are appointed to the post of Assistant Conservators of Forests (II) The period of training of directly selected candidate to be equated as on service as to render such directly selected candidate eligible for future promotion in the cadre of Deputy Conservator of Forests Rule 2 of the Recruitment Rules of Deputy Conservators of Forests specifically stipulates that the period spent on training shall be included while computing the experience of eight years in the cadre of Assistant Conservators of Forests and therefore though such candidate was undergoing training before his actual appointment his experience shall be counted as if he was in service. The rule-making authority has thus treated the period of training as in-service period at least for the purpose of counting the period of experience in the cadre of Assistant Conservators of Forests. (III) In Indian Forest Services and the Forest services of number of other States the period of training is treated as period of service since appointment precedes the training. If the training is to be given at the recognised institution and during the period of training the trainees are to get minimum time-scale of pay and allowances there does not appear to be any significant difference between pre-services training and in-service training. (IV) The candidates who are directly selected and sent for training are to be subjected to disciplinary control of the appointing authority and the appointing authority may even terminate the period of training for any misconduct on the part of the candidate. This is envisaged by the Rules. If directly selected candidate sent on training is not really born in the cadre he could not have been subjected to disciplinary control of the appointing authority. The fact that he is subjected to such disciplinary control so as to render liability of premature termination of period of his training for any misconduct would also support the conclusion that such candidate is really born in the cadre when he is sent for training and not when on completion of training he is actually posted/appointed to the cadre of Assistant Conservators of Forests. (V) There is on record a letter dated 17/11/1981 addressed by the President of Forest Research Institute and College Dehradun to the Secretary Forest Department Government of India. (V) There is on record a letter dated 17/11/1981 addressed by the President of Forest Research Institute and College Dehradun to the Secretary Forest Department Government of India. In this better he has also recommended that it would be better to appoint directly selected candidate to the State Forest Services before they are sent for training so that the period of their training is automatically treated as part and parcel of service since such trainees are in-service trainees. He has suggested the method of avoiding controversy. However same result can be achieved by the State Government by treating such trainees on par with promotees to the post of Assistant Conservators of Forests by giving to said trainees same time scale of pay and admissible allowances which is available to the candidate in the cadre of Assistant Conservator of Forests and secondly by subjecting such trainees to the disciplinary control of the appointing authority. ( 37 ) FOR the aforesaid reasons I do not find any substance in the submission of Mr. Shelat that Rule 8 in fact prescribs principle of seniority. I hold that consistent with Rule 6 and other factors stated hereinabove the training rendered by duly selected direct recruits for a period of two years after selection should be treated as part and parcel of service even for the purpose of determining the seniority. Such an interpretation which I am inclined to give to Rule 8 leaves no scope for discrepancy between promotees and direct recruits who are selected at the same selection for the post of Assistant Conservators of Forests. The Ranger who is selected for the post of Assistant Conservator of Forests shall immediately be promoted/appointed to the post of Assistant Conservator of Forests while the directly selected candidate shall have to undergo training as required by Rule 6 and though such period of training is to be treated as part and parcel of his experience as Assistant Conservator of Forests he will be denied the status and appointment in the cadre of Assistant Concervators of Forests so long as he is not appointed. This situation resulted into discriminatory treatment to the directly selected candidate inasmuch as the period spent by him in training is excluded from consideration for the purpose of computing his seniority though for all practical purposes the said period is treated as part and parcel of his service. This situation resulted into discriminatory treatment to the directly selected candidate inasmuch as the period spent by him in training is excluded from consideration for the purpose of computing his seniority though for all practical purposes the said period is treated as part and parcel of his service. It is this position which is required to be avoided and the said result is achieved by the other States by treating period of training as in-service training and that is the very object which is sought to be achieved by the State of Gujarat also by making it explicit what was implicit in the rules. However it shall have to be stated that the major controversy and the area of dispute could have been very well avoided by the State Government by following the pattern which is being followed by the Union Government as well as by few of other States of first giving appointment to the directly selected candidate and thereby sending him for training so that the period of training becomes part and parcel of his service. What can be directly done is sought to be done by this State indirectly and such an exercise is not impermissible and unconstitutional. ( 38 ) HAVING recorded the aforesaid conclusion that the Recruitment Rules of Assistant Conservator of Forests do not prescribe any rule of seniority and that date of appointment in the cadre of Assistant Conservator of Forests is not the basis for the purpose of fixation of seniority it is required to be incidentally as to whether the date earlier in point of time to the date of actual appointment can be fixed as date of appointment. Mr. Shelat learned Advocate for promotees has strenuously urged before this Court that seniority of a person appointed must be reckoned from the date of appointment. Seniority can never be fixed from the date prior to his appointment. The proposition cannot be accepted as an absolute proposition of law because in service jurisprudence the question of duration of service rendered during training period or pre-selection period or during post-selection and pre-appointment period may arise. In such cases the incumbent though not an employee is for all purposes treated as part and parcel of establishment. He is very often paid full salary in the regular time-scale of pay. He is also paid other admissible allowances. In such cases the incumbent though not an employee is for all purposes treated as part and parcel of establishment. He is very often paid full salary in the regular time-scale of pay. He is also paid other admissible allowances. He is also subjected to discipline of the department by making him answerable for any misconduct committed by him during the period of training. Very often said period of training is permitted to be treated as permissible for the purpose of pension. Sometimes such training period is treated as period on duty for the purpose of computing experience which is required for the purpose of further promotion. These are various modes by which the incumbent is tried to be treated as part and parcel of service though no formal order of appointment is issued in his favour. In such cases the question may arise as to whether the period spent by such incumbent in training should be altogether excluded from consideration. In the absence of any statutory rule specifically providing for exclusion of such period and in view of existence of number of factors enumerated hereinabove which go to suggest that period of training is to be treated as part and parcel of service. I am of the opinion that the period spent at training cannot be altogether excluded while computing the seniority of directly recruited candidate vis-a-vis promotee. In fact much of the controversy is set at rest by the Union Government in Indian Forest Services and by a few of the State Governments by making the period of training as in-service training by first giving order of appointment to the directly recruited candidate and thereafter sending them training. Absence of that modality in this case should not in my opinion make any difference and from other factors enumerated hereinabove it becomes clear that the period of training of such directly selected candidates shall have to be treated as part and parcel of their service and it cannot be ignored even for the purpose of seniority. ( 39 ) IT is also clear that the length of continuous officiation/service cannot be and is not the only relevant criterion in determining the seniority in a particular cadre of grade. ( 39 ) IT is also clear that the length of continuous officiation/service cannot be and is not the only relevant criterion in determining the seniority in a particular cadre of grade. There can be different principles of seniority where stress is not on the initial date of appointment A rule may provide for fixing seniority on the basis of rank obtained in the process of same selection. True it is that ordinarily and in the absence of any specific rule of seniority governing the cadre of service length of continuous officiation should be counted in reckoning seniority as between direct recruits and promotees (Vide Ashok Gulati v. D. S. Jain reported in AIR 1987 SC 424 ). However cases of persons appointed on ad hoc basis dehors the Rules for absolutely short period or for fortuitous reasons or for stop-gap arrangement constitute a class which is separated and distinct from those who are appointed to post in the service in strict conformity with the rules of recruitment. The question as to what would happen when a class which is appointed in a regular manner through Public Service Commission and when such appointment cannot by any stretch of imagination be described as having been made to fill a purely stop-gap or fortuitous vacancy stand on a different footing Such a person having been appointed regularly cannot be denied benefit of service rendered by him even during temporary period (see A. P. M. Mayakutty v. Secretary Public Services Department reported in (1977) 2 SCC 360 ; (1977) 1 LLJ 43) Ultimately the attempt of Court of law should be to see that in the absence of any statutory rule just balance is struck between those who are similarly situated and similarly circumstanced. The promotees and the direct recruits having been selected through same process of selection for the post of Assistant Conservators of Forests should ordinarily get their seniority by rank assigned to them by the Gujarat Public Service Commission and not by the fact that formal appointment is given to promotees in the cadre of Assistant Conservators of Forests while same is denied to the direct recruit as he is required to undergo two years training. If said two years training can be in-service training as is provided under Indian Forest Services and Forest Services of few States and if such training can become part and parcel of service of such direct recruit I fail to understand and as to how the direct selectee of this State can be denied the benefit of period of those two years of training especially when they are entitled to receive the minimum time-scale of pay and other allowance for the said period and when such period is to be computed as valid experience for the purpose of considering their eligibility for the post of Deputy Conservators of Forests. If the rules are reasonably read and interpreted in my opinion they do not leave any scope for the submission that the period of training of Assistant Conservators of Forests is to be excluded while computing their services. In fact the interpretation put forward by the learned Counsel for promotees would bring about extremely undesirable unjust and inequitable situation emerging in service jurisprudence namely of rendering two years period of training of direct recruit as useless for all purposes despite the fact that they have been selected by the same august body namely Gujarat Public Service Commission on the same day at the same process of selection by which the promotees were also selected Since this period of two years training can very well be in-service training whether it is achieved by order of appointment preceded by training by providing that such period of training shall be treated as part and parcel of service same result is achieved and to deny such just benefit of training to the direct recruit would amount to treating equal as un-equal who were equal because they were considered at the same process of selection and selected by the same august body namely Gujarat Public Service Commission ( 40 ) TO buttress the aforesaid conclusion reference can be made to the decision of Supreme Court in the case of Prabhakar and Ors. v. State of Maharashtra reported in AIR 1976 SC 1093 wherein the Supreme Court was called upon to decide the constitutionality of the provisions of Bombay Police Officers (Combined Cadre) Conditions of Service Order 1954 In the context of the facts of the case the Court observed that it was for the rule-making authority to decide and to choose as to whether the date of commencement of training can be the basis for the purpose of fixation of seniority. If there is no rule prescribing the principle of seniority and if the period training is to be treated as part and parcel of service for all practical purposes vis-a-vis the direct recruit it can be reasonably provided that the date of commencement of training shall be the date from which their seniority is to be recknoned. In such case obviously seniority would go back to date earlier than the date of appointment. It is therefore not correct to state that this would amount to injecting life into a direct recruit before he is born on the cadre as submitted by Mr. Shelat learned Advocate for promotees. In my opinion in fact the promotees and the direct recruits selected at the same process of selection shall have to be treated as born on the same date and the difference is one between a normal child and child kept in an incubator after birth Both of them are born. One is better trained by the rules of nature while the other has to be trained and in-service jurisprudence these trainees belong to the second class because they are to be trained by traits of service if the date of commencement of training can in a given case be the basis of seniority I fail to understand as to how the period of training can be denied to the direct recruit especially in the fact situation prevailing in this case which otherwise makes the direct recruits eligible to contend that they are part and parcel of service from the date they are sent for training. . ( 41 ) THAT brings me to the question of validity of select-list dated 27-10-1988. The submission of Mr. . ( 41 ) THAT brings me to the question of validity of select-list dated 27-10-1988. The submission of Mr. Shelat learned Advocate for promotees namely that the select-list duly prepared creates a vested indefeasible right in favour of persons whose names appeared in the select-list and it cannot be set at naught by any executive fiat shall be hereafter separately considered and decided At this stage it shall have to be first decided as to Whether the select-list is constitutionally prepared ? If the select-list is found to be invalid or unconstitutional on the ground that the eligible persons for being considered for inclusion of their names are excluded from the zone of consideration such a select-list cannot confer any right on the persons whose names are included in the select-list and therefore now I proceed to decide the question of validity and/or constitutionality of the select-list. ( 42 ) IT will therefore be necessary for this Court to ascertain as to how the select-list for the cadre of Deputy Conservator of Forests is prepared. The proceedings of Departmental Promotion Committee which prepared the select-list in question were produced before this Court for perusal From the said proceedings it becomes clear that a meeting of Departmental Promotion Committee met on 24/10/1989 It also transpires from the proceedings that based on Recruitment Rules for the cadre of Deputy Conservators of Forests it has decided to fill in the post by promotion from the date of Assistant Conservator of Forests. It is also stated that for promotion experience of eight years in the cadre of Assistant Conservator of Forests is required. It is also stated that if candidates with sufficient experience are not available there is provision for relaxation in the Recruitment Rules. Having determined the criterion by which it was to act the Committee has noticed that there were 15 vacancies in the cadre of Deputy Conservator of Forests in the Forest Services Cl. I which were to be filled in in the course of the year. For that purpose it has decided to consider the candidates from provisional seniority list of Gujarat Forest Service-Cl. II which was then to be published and which showed the seniority of the incumbents as on 1/01/1989 For 15 vacancies the Committee has considered 23 persons. I which were to be filled in in the course of the year. For that purpose it has decided to consider the candidates from provisional seniority list of Gujarat Forest Service-Cl. II which was then to be published and which showed the seniority of the incumbents as on 1/01/1989 For 15 vacancies the Committee has considered 23 persons. Out of 23 persons who were considered from the aforesaid seniority list which till then not published it had selected 17 candidates and recommendations with respect to 3 candidates were kept in sealed cover as the departmental proceedings were pending against them. As regards remaining three candidates it has not selected them as they were not found fit for promotion. ( 43 ) AT this stage it is required to be stated that the seniority list referred to by the Departmental Promotion Committee came to be published as a provisional seniority list on 8/01/1990 and the said seniority list is not finalised thereafter. ( 44 ) IN the aforesaid factual conspectus one further fact is required to be noted and it is that the Recruitment Rules for the Deputy Conservators of Forests do not prescribe the zone of consideration. The said Rules do not provide as to how many candidates are to be considered by the Departmental Promotion Committee for filling in the notified vacancies. M/s. S. N. Shelat for promotees and B. B. Naik and Mukul Sinha for respondents have clearly stated to the Court that in the absence of any prescription in the Recruitment Rules the select-list is to be prepared of the size equal to the number of vacancies in the same order subject to maintenance of seniority inter se of persons in the same category for the purpose of classification also. The zone of consideration shall be as under: Number of vacancies No. of officers @@@ -- number of vacancies No. of officers to be considered -- 1 5 2 8 3 10 4 or more 3 times number of vacancies -- @@@ in the Hand Book published by the General Administration Departmental page 60 under Heading CLASSIFICATION OF POSTS FOR THE PURPOSE OF PROMOTION the aforesaid principle is prescribed and ordinarily in the absence of any prescription for zone of consideration by the Recruitment Rules the number of persons to be considered vis-a-vis vacancies would be as per the general guidelines referred to hereinabove. ( 45 ) IN that view of the matter it shall have to be stated that for 15 vacancies for which the select list was to be prepared by the Departmental Promotion Committee it was expected at least to consider 45 candidates from the cadre of Assistant Conservators of Forests. But unfortunately from the proceedings of Departmental Promotion Committee it becomes clear that for 15 vacancies it had only considered 23 candidates from the cadre of Assistant Conservators of Forests. In view of the fact that the criterion for promotion to the cadre of Deputy Conservator of Forests is proved merit and efficiency the Departmental Promotion Committee could not have gone by the seniority alone of the officers in the cadre of Assistant Conservators of Forests. It was required to consider at least 45 incumbents from the cadre of Assistant Conservators of Forests and any candidate out of 45 could have by his better performance found place in the select list. There is no earthly reason as to why the Departmental Promotion Committee has restricted the zone of consideration by considering only 23 candidates for filling in 15 vacancies. It has thus undoubtedly restricted the zone of consideration and has failed to act in consonance with the general guidelines issued by the General Administration Department and therefore has excluded from consideration the eligible candidates who could have been selected and who could have been placed in the select list. This has resulted into exclusion of eligible candidates from consideration by the Department Promotion Committee which has resulted into violation of Articles 14 and 16 of the Constitution of India inasmuch as equal opportunity is denied to the persons who were eligible for being considered to the cadre of Deputy Conservators of Forests. ( 46 ) THE factual position is not in dispute in view of the further affidavit filed by A. K. Bhatt Under-Secretary to the Government of Gujarat Forest and Environment Department wherein he has categorically stated that in the meeting of the Departmental Promotion Committee which was held on 24/10/1989 for 15 vacancies in Cl. I post of Deputy Conservators of Forests 23 persons were considered from the seniority list. I post of Deputy Conservators of Forests 23 persons were considered from the seniority list. Though factually the aforesaid assertion made by the State is disputed by the promotees I do not think this Court can go by the Affidavit-in-rejoinder filed by the promotees stating that 15 vacancies were not there but only 11 vacancies were there. In such matter the Court shall prefer to go by the record of the State Government and not by the assertions made by the individual parties since it is based on the record available with the State Government. Factually therefore it shall have to be accepted that while preparing the select list under challenge the Departmental Promotion Committee has excluded from the zone of consideration large number of eligible candidates from the cadre of Assistant Conservators of Forests and such list is therefore clearly in violation of Articles 14 and 16 of the Constitution of India and it will not be permissible for this Court to issue any direction to the respondents to operate such select list by giving appointment/promotion to any person from such list to the cadre of Deputy Conservators of Forests. ( 47 ) AT this stage another submission made by Mr. Mukul Sinha for Direct Recruits shall have to be noted. He has submitted that in the absence of any prescription for zone of consideration by the Statutory Rules namely the Recruitment Rules for Deputy Conservators of Forests all eligible candidates in the cadre of Assistant Conservators of Forests must be considered by the Departmental Promotion Committee. He has submitted that when the rule making authority has not thought it fit to prescribe any zone of consideration entire class of eligible candidates is required to be considered by the Departmental Promotion Committee and non-consideration of entire class of Assistant Conservators of Forests would result into denial to equal opportunity in the matter of promotion to Assistant Conservators of Forests. Now it is well established by catena of decisions of the Supreme Court that when number of eligible candidates is too large compared to number of vacancies to be filled in a zone of consideration can be legitimately prescribed and even in the absence of statutory rules if guidelines issued by the General Administration Department prescribe zone of consideration. Now it is well established by catena of decisions of the Supreme Court that when number of eligible candidates is too large compared to number of vacancies to be filled in a zone of consideration can be legitimately prescribed and even in the absence of statutory rules if guidelines issued by the General Administration Department prescribe zone of consideration. I do not think that would vitiate the process of selection if at least candidates who fail within the zone of consideration are considered by the Departmental Promotion Committee. In my opinion it will not be necessary for the Departmental Promotion Committee to screen all eligible candidates from the cadre of Assistant Conservators of Forests as because of availability of large number of candidates the process of selection may become difficult and at times may become impossible also. I therefore do not accept the submission of Mr. Sinha that unless all the eligible candidates of the cadre of Assistant Conservators of Forests are considered for inclusion of their names in the select list for promotion to the post of Deputy Conservators of Forests the process of selection is vitiated. ( 48 ) THE select list has further infirmity which is required to be stated. From the proceedings of Departmental Promotion Committee it becomes clear that it has considered 23 eligible candidates from the cadre of Assistant Conservators of Forests based on their placement in the provisional seniority list which was yet to be published. It is required to be noted that the Departmental Promotion Committee has met on 24/10/1983 while the provisional seniority list is published on 8/01/1991 The earlier two seniority lists provisional as well as final are not relied upon. It is required to be noted that earlier two seniority lists are subjected to challenge in petitions which are pending for final hearing before this Court. Therefore presumably the Departmental Promotion Committee has decided to proceed on the basis of a fresh provisional seniority list which was yet to be published. The question is as to whether such a provisional seniority list which was yet to be published could have been made the basis for preparation of select list ? It can be stated that the earlier two seniority lists provisional as well as final were prima facie defective inasmuch as the names in direct recruits of the batch of 1980 were not included in such list at all. It can be stated that the earlier two seniority lists provisional as well as final were prima facie defective inasmuch as the names in direct recruits of the batch of 1980 were not included in such list at all. It may be that direct recruits of the batch of 1980 might not be eligible for promotion in the cadre of Deputy Conservators of Forests. Their eligibility or other wise cannot justify their exclusion from the seniority list. Neither Mr. Shelat not Mr. D. N. Patel is in a position to justify before this Court as to how the direct recruits in the cadre of Assistant Conservators of Forests of the batch of 1980 were excluded from the aforesaid two seniority lists. Presumably because of such lapse or actual defect in the preparation of earlier two seniority lists the Government has prepared fresh provisional seniority list which was yet to be published on the date on which the Departmental Promotion Committee met. Unless said seniority list is published and made known to the entire class of employees whose seniority is fixed thereby the eligible candidates do not know as to whether they were likely to be considered by the Departmental Promotion Committee or not. In my opinion firstly the reliance on such provisional seniority list which was not notified on the date of the meeting of Departmental Promotion Committee is not permissible inasmuch as at any date prior thereto even subsequent thereto there is chance of change or modification in such list. Secondly the incumbents whose names appeared in such list do not know anything about their placement and therefore they also do not know as to whether they fall into zone of consideration or not and as to whether they were entitled to be considered for the cadre of Deputy Conservators of Forests or not. The aforesaid defect also would invalidate the selection process. ( 49 ) BY following the principle of seniority from the date of appointment and while fixing the zone of consideration some difficulty is likely to arise as pointed by Mr. Sinha learned Advocate for recruits. The difficulty can be well explained by a concrete illustration. In this submission the date by reference to which the vacancies are to be filled in its Hand Book. The said Rule I read is to be determined is required to be fixed first by the Departmental Promotion Committee. Sinha learned Advocate for recruits. The difficulty can be well explained by a concrete illustration. In this submission the date by reference to which the vacancies are to be filled in its Hand Book. The said Rule I read is to be determined is required to be fixed first by the Departmental Promotion Committee. Having fixed the relevant date on which the eligibility is to be considered the Departmental Promotion Committee is required to turn to the seniority list of the cadre of Assistant Conservators of Forests so as to fix the zone of consideration. He submitted that the names of promotees who are selected in the same batch of selection along with direct recruits will be placed earlier in the seniority list on the basis of date of appointment. Such promotees may therefore enter the zone of consideration though it may happen that they might not have completed eight years experience as required by Rule 2 of Recruitment Rules for Deputy Conservators of Forests. 49a As against this situation a directly recruited candidate in the cadre of Assistant Conservator of Forests who is placed down below in the seniority list because of the fact that this date of appointment is later in point of time as the period spent on training is excluded he might still be eligible for consideration by operation of Rule 2 of Recruitment Rules for Deputy Conservator of Forests as period of training is to be included while computing the period of experience. He therefore submitted that the eligible direct recruit might be denied right of consideration while ineligible promotee might enter into zone of consideration and might be considered. The hypothetical illustration may or may not happen. It is required to be noted that for both direct recruits and promotees selected at the same batch date of eligibility on the basis of acquisition of experience may be the same. On the other hand on the basis of the date of appointment promotees will be placed higher in the seniority list than the direct recruits. In such cases how to fix the zone of consideration is a vexed question of service jurisprudence. Promotees find their place higher in the seniority list because of their earlier date of appointment in the cadre of Assistant Conservators of Forests. In such cases how to fix the zone of consideration is a vexed question of service jurisprudence. Promotees find their place higher in the seniority list because of their earlier date of appointment in the cadre of Assistant Conservators of Forests. On the other hand direct recruits are placed far below as they are technically appointed only after completion of two years training. Thus though both may be eligible for promotion the direct recruit may be excluded from consideration. It is the submission of direct recruits that in reality the direct recruits are excluded from the zone of consideration because while preparing the seniority list their placement is determined on the basis of date of their appointment and two years training which they have undergone is excluded so that the promotees selected at the same batch might steal march over them despite the statutory requirement of Rule 2 of the Recruitment Rules for Deputy Conservators of Forests. It may be mentioned that the stand of the Government on this issue is not very clear but from the averments made in the affidavit-in-reply it has made its position clear by stating the even the provisional seniority list of 8/01/1990 was not acceptable as it was proposed to be revised as the State Government was till then considering the question of determination of principle for fixation of seniority. I therefore would not express any opinion on the question as to how the seniority list is to be prepared and as to how determination of seniority list based on the date of appointment may create situation wherein direct recruits who are otherwise eligible for being considered for the cadre of Deputy Conservators of Forests might get excluded because of their lower placement in the seniority list. To state that though by operation of Rule of Recruitment for Deputy Conservators of Forests they were eligible they cannot be considered for promotion as they do not fall in the zone of consideration would result into making the provision of Recruitment Rules for Deputy Conservators of Forests practically redundant. There was no special charm in making the direct recruits eligible for consideration for the cadre of Deputy Conservators of Forests by including their period of training as part and parcel of their service if they were to be excluded from actual consideration because of the fact that they do not fall in the zone of consideration. There was no special charm in making the direct recruits eligible for consideration for the cadre of Deputy Conservators of Forests by including their period of training as part and parcel of their service if they were to be excluded from actual consideration because of the fact that they do not fall in the zone of consideration. ( 50 ) FOR the aforesaid reasons I am of the opinion that the select list prepared by the Departmental Promotion Committee on 27/10/1988 is null and void discriminatory and violative of Articles 14 and 16 of the Constitution of India and no writ can be issued by this Court to operate said list by directing the respondents to give promotion from said select list to the cadre of Deputy Conservators of Forests. I may mention here that the promotees have prayed for direction to the State Government to operate said list while direct recruits by amending the memo of special civil application prayed for declaration that the aforesaid select list is null and void and is therefore liable to be quashed and set aside. In view of my findings I am of the opinion that the aforesaid select list prepared by the Departmental Promotion Committee cannot be permitted to be operated and the same is null and void and violative of Articles 14 and 16 of the Constitution of India and therefore said prayer of the direct recruits shall have to be granted while the prayer of promotees shall have to be rejected. Whether the Select List as such Confers any Right and whether any Vested Rights Are Affected?: ( 51 ) MR. S. N. Shelat learned Advocate for promotees has strenuously urged before this Court that their seniority in the cadre of Assistant Conservators of Forests is finally fixed and based on said seniority they were required to be considered for the promotion to the cadre of Deputy Conservators of Forests. He submitted that not only that the seniority list was finalised based on said seniority list even selection for the cadre of Deputy Conservators of Forests was made by the Departmental Promotion Committee and on preparation of said list the right is accrued to selected candidates for being promoted to the cadre of Deputy Conservators of Forests and such selected candidates cannot be deprived of said right. Finally he submitted that the vacancies in the cadre of Deputy Conservators of Forests have arisen way back in the past and by reference to the date of vacancy it shall have to be determined as to whether persons are to be promoted from the select list or not. The subsequent executive fiat or administrative direction issued by the Government cannot and should not affect the vested right of selected candidates of being promoted to the cadre of Deputy Conservator of Forests. In order to make this submission good Mr. Shelat has referred and relied upon the decisions of Supreme Court in the case of A. A. Calton v. Director of Education and Ors. reported in AIR 1982 SC 1143 D. P. Sharma and Ors. v. Union of India and Ors. reported in AIR 1989 SC 1701 P. Mahendran and Ors. v. State of Karnataka and Ors. reported in AIR 1990 SC 405 and the decision of the Division Bench of this Court in the case of Pandya Jaswantlal M. Ors. v. District Supdt. of Police reported in 31 (1) GLR 515 - 1990 (1) GLH 51 and in the case of Kantibhai Parmabhai Vankar v. Dist Supdt. of Police reported in 31 (2) GLR 1259 (= 1990 (2) GLH 496 ). ( 52 ) IN the case of Y. V. Rangaiah and Others v. Srinivasarao and Ors. reported in AIR 1983 SC 852 the Supreme Court was dealing with the A. P. Registration and Subordinate Service Rules. The Court found that under the old Rules and instructions issued by the Government from time to time the list of approved candidates should have been prepared as on 1/09/1976 for making appointments to the grade of Sub-Registrar Gr. II. The Government did not prepare the list of approved candidates as on 1/09/1976 but it delayed such preparation and prepared it in the year 1977 when the amendment to the Rules had been incorporated. By such amendment the right of Lower Division Clerks (LDCs) for consideration for appointment to Sub-Registrar Gr. II was withdrawn and it was provided that promotion to the cadre of Sub-Registrar Gr. II can be made from amongst Upper Division Clerks (UDCs) employed in the Registration and Stamps Department. By such amendment the right of Lower Division Clerks (LDCs) for consideration for appointment to Sub-Registrar Gr. II was withdrawn and it was provided that promotion to the cadre of Sub-Registrar Gr. II can be made from amongst Upper Division Clerks (UDCs) employed in the Registration and Stamps Department. The contention of the petitioners was that had the list of approved candidates been made as on 1/09/1976 as contemplated by the rules and executive instructions then prevailing they were entitled to be considered for promotion and when vacancies have accrued prior to the amendment of rules panel of approved candidates for such vacancies should have been prepared on the basis of old rules and not on the basis of amended rules. The Supreme Court accepted the aforesaid contention of the petitioners and held that the vacancies in the cadre of Sub-Registrar Gr. II which have accrued prior to the amendment of rules in 1977 should have been filed in by reference to old rules and not by reference to amended rules. To this proposition of law no exception can be made but in the facts and circumstances of the present case this proposition of law will have no application. It must be noted that in the facts of the case before this Court no amendment in the Statutory Rules has taken place conferring any right on the direct recruits or adversely affecting any rights of the promotees. The executive instructions issued by the Government Resolution had also not created any new right in favour of direct recruits but has simply clarified the controversy as to how the seniority in the cadre of Assistant Conservators of Forests is to be fixed vis-a-vis the direct recruits and the promotees. It may be mentioned that prior to issuance of the Government Resolution there was neither any statutory Rule providing for fixation of seniority in the cadre of Assistant Conservators of Forests nor was there any executive instruction in force. The executive instruction issued by the Government Resolution thus did not create any right nor did it affect any established or accrued right. In this cadre since the rules were not amended question of filling in the vacancies which occurred prior to amended rules would not arise and the proposition laid down by the Supreme Court will have no application. The executive instruction issued by the Government Resolution thus did not create any right nor did it affect any established or accrued right. In this cadre since the rules were not amended question of filling in the vacancies which occurred prior to amended rules would not arise and the proposition laid down by the Supreme Court will have no application. ( 53 ) IN the case of A. A. Calton v. Director of Education (supra) the process of selection for the post of Principal of Intermediate College was commenced u/s. 16-F of U. P. Intermediate Education Act 1921 The Act was however amended by the U. P. Act 26 of 1975 which came into force on 18/08/1975 taking away the power of the Director to make appointment under Section 16-F (4) of the Act in the case of minority institutions. The amending Act did not however provide expressly that the amending in question would apply to pending proceedings under Section 16 of the Act. There were no words in the amending Act which by necessary intendment would affect the pending proceedings. The process of selection under Section 16-F of the Act commencing from the stage of calling for applications for a post upto the date on which the Director becomes entitled to make selection under Section 16-F (4) (as it stood then) was an integrated one. At very stage in that process certain rights were created in favour of one or the other candidates. The Supreme Court found that Section 16-F of the Act cannot be construed as merely a procedural function. "it was in that context that the Supreme Court observed as under: It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. NO retrospective effect should be given to any statutory provision so as to impair or take away an existing right unless the statute either expressly or by necessary implication directs that it should have such retrospective effect". ( 54 ) SIMILARLY in the case of D. P. Sharma (supra) Armed Forces Headquarters Clerical Service Rules 1968 provided that the seniority in the service shall be determined on the basis of date of confirmation. Prior to the coming into force of the Rules the seniority in the cadre of service was required to be determined on the basis of length of service. Prior to the coming into force of the Rules the seniority in the cadre of service was required to be determined on the basis of length of service. The Rules no doubt provided that all persons substantially appointed to a grade shall rank senior to those holding officiating appointments in the grade. But the Rules have no retrospective effect. The Court held that said rules could not impair the existing right of officials who were appointed long prior to Rules came into force. The office memorandum clearly laid down the length of service should be the guiding principle of arranging the inter se seniority of officials. The employees appointed before 1988 being governed by these memoranda have the right to have their seniority determined accordingly before the Rules came into force. The Court held that such right cannot be taken away to their prejudice by the subsequent rules and that their seniority shall not be varied to their disadvantage retrospectively. ( 55 ) IN the case of P. Mahendran and Others v. State of Karnataka (supra) the Supreme Court was called upon to decide the question as to: Whether the amendment of Karnataka General Service (Motor Vehicle Branch) (Recruitment) Rules 1962 was retrospective in nature ? For the post of Motor Vehicle Inspector the process of selection had already commenced. Under the Rules then in existence it was provided that direct recruitment to the post of Motor Vehicle Inspector can be made and the minimum qualification prescribed was that a candidate must be a holder of Diploma in Automobile Engineering or Mechanical Engineering. In 1978 that the Karnataka Public Service Commission held selection and about 200 posts of Motor Vehicle Inspectors were filled up from amongst the candidates holding Diploma in Mechanical Engineering and in Automobile Engineering. On 28/09/1983 the Public Service Commission issued an advertisement inviting applications for 56 posts of Motor Vehicle Inspectors which was later on increased to 102 posts. The advertisement specifically stated that the selection shall be made in accordance with the Recruitment Rules 1976 ant it further stated that the candidate for selection must be the holder of Diploma in Automobile Engineering or Mechanical Engineering. The appellants/petitioners before the Supreme Court who were holding Diploma in Mechanical Engineering along with others applied for selection to the post of Motor Vehicle Inspectors. The appellants/petitioners before the Supreme Court who were holding Diploma in Mechanical Engineering along with others applied for selection to the post of Motor Vehicle Inspectors. The Commission after scrutiny of application forms issued letters for interview to the suitable candidates and commenced holding interview in August 1984. It appears that the Commission refused to interview some of the candidates who were competing for the selection against reserved seats which gave rise to the institution of petition in the Karnataka High Court and the Karnataka High Court granted stay of the selection process. Later on said stay was modified and the Commission resumed interviews and completed the same by 2/06/1987 and declared result of selection on June 22 1087 The selected candidates were given intimation of their selection. In meanwhile the State Government amended the Recruitment Rules by Notification dated 4/05/1987 omitting the qualification of Diploma in Mechanical Engineering for the post of Motor Vehicle Inspector. Consequent to the amendment of rules the holders of Diploma in Automobile Engineering became exclusively eligible for appointment to the post of Motor Vehicle Inspector and the holder of Diploma in Mechanical Engineering ceased to be eligible for selection and appointment to the said post. It was in this context that the Supreme Court was called upon to decide the question as to: Whether the amendment of the Rules and retrospective effect and whether the selection of candidates already mate earlier under the old Rules can be adversely affected. By following its earlier decision in the case of Y. V. Rangaiah (supra) and A. A. Calton (supra) the Court observed as under:" It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless these are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective. It could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the require qualifications prescribed by the rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject-matter". ( 56 ) FROM the aforesaid principles of law it becomes clear that when seniority of employee in particular cadre is already lawfully determined the employee cannot be denied said seniority or said seniority cannot be altered to his prejudice or disadvantage by subsequent amendment of Rules or by subsequent issuance of executive instructions to the contrary. Similarly a candidate whose name has appeared in the select-list on being found eligible for being selected cannot be subsequently denied the benefit of said selection by retrospective amendment of Rules or an executive instruction. ( 57 ) IN my opinion in the present case the aforesaid well accepted principles can have no application. I would first turn to the seniority list. Firstly the statutory rules do not prescribe any criterion for fixation of seniority. From none of the provisions of Recruitment Rules of Assistant Conservators of Forests it can be said that it has prescribed that date of appointment in the cadre of Assistant Conservators of Forests would be the basis for the purpose of fixation of seniority. For the reasons already recorded hereinabove I do not regard Rule 8 of the Recruitment Rules of Assistant Conservators of Forests as providing principle of seniority. In fact none of the aforesaid rules specifically deal with principle of seniority. The Recruitment Rules of Assistant Conservators of Forests are actually silent about the principle of seniority. For the reasons already recorded hereinabove I do not regard Rule 8 of the Recruitment Rules of Assistant Conservators of Forests as providing principle of seniority. In fact none of the aforesaid rules specifically deal with principle of seniority. The Recruitment Rules of Assistant Conservators of Forests are actually silent about the principle of seniority. In the absence of any principle based on which seniority in the cadre of Assistant Conservators of Forests is to be determined the department appears to have undertaken exercise of preparing the seniority list of Assistant Conservators of Forests. It did not include large number of Assistant Conservators of Forests who were born on the cadre. In fact the direct recruits who have not completed eight years of experience perhaps were not included in the provisional seniority list of Assistant Conservators of Forests as well as in the final seniority list of Assistant Conservators of Forests. This list was therefore prepared under-misconception of law because there cannot be a seniority list of class of Assistant Conservators of Forests where Assistant Conservators of Forests already appointed are excluded from their placement in the seniority list. ( 58 ) IF one refers to the subsequent seniority list which was perhaps the basis of the select list it will be clear that even that seniority list was merely a provisional list and it was one which was not yet published on the date on which the selection took place. Such a provisional seniority list was once again prepared on the basis of date of appointment in the cadre of Assistant Conservators of Forests. In the absence of any specific prescription for determining seniority the department appears to have gone by principle of continuous officiation as the basis of seniority and has fixed the seniority provisionally. It may be mentioned that the Government had never made up its mind and was in fact in the process of decision making. In the absence of any specific prescription for determining seniority the department appears to have gone by principle of continuous officiation as the basis of seniority and has fixed the seniority provisionally. It may be mentioned that the Government had never made up its mind and was in fact in the process of decision making. The Government intervened for the first time by the executive fiat by way of its resolution dated 31/01/1992 whereby it provided that the period of training undergone by the direct recruits shall have to be taken into consideration for the purpose of determining their seniority and their seniority shall be considered from the date the Court is required to decided as to: Whether any vested right of promotees is sought to be impaired or defeated by the Government by the aforesaid executive fiat ? ( 59 ) IN my opinion no vested right or accrued right of the promotees is impaired or defeated. The following relevant factors shall have to be kept in mind: (I) The statutory rules were absolutely silent over the question of principle of seniority in the cadre of. Assistant Conservators of Forests. (II) The Executive instructions do not specifically provide that the date of appointment shall be the basis for the purpose of fixation of seniority in the cadre of Assistant Conservators of Forests. (III) In Indian Forest Services as well as in Forest Services of a few other States there was consistent practice as regards the period of training. The period of training was made part and parcel of service by first giving order of appointment and thereafter sending the selected candidates for training thereby including the period of training in the period of service. (IV) Several other States like the State of Gujarat followed the practice of sending the candidates for training and thereafter giving them appointment on successful completion of training. However even for such period of training regular salary in the regular time-scale of pay was being offered to the trainees and the trainees were subjected to disciplinary control of the competent authority. However even for such period of training regular salary in the regular time-scale of pay was being offered to the trainees and the trainees were subjected to disciplinary control of the competent authority. (V) By statutory rules also it was accepted that for the purpose of eligibility for being considered for the post of Deputy Conservator of Forests the period of such training was required to be taken into consideration and this statutory provision was a surer indicator of the fact that the period of training of Assistant Conservators of Forests was not to be ignored for their eligibility for promotion and therefore in my opinion it was also not to be ignored for the purpose of counting their seniority from the date they were being sent for training. Based on the aforesaid relevant factors the Government took conscious decision that period of training shall be treated as part and parcel of service for the purpose of fixing the seniority and it is this Government Resolution which is said to affect the vested or accrued right of the promotees. ( 60 ) IN view of the aforesaid discussion it becomes clear that there never existed fixed principle of seniority for the cadre of Assistant Conservators of Forests. In the absence on any criterion for fixing of seniority if the seniority was fixed by the department by two provisional seniority lists or final seniority lists it cannot be said to have created any vested or accrued right in favour of promotees especially because I have also found that preparation of said seniority list was unconstitutional and null and void. Such seniority list could not confer any right on persons whose names are included in the seniority list. In fact two out of three seniority lists did not include the names of direct recruits of the batch of 1980 presumably because on the date of preparation of list the direct recruits were not eligible for being promoted to the post of Deputy Conservators of Forests. The seniority list which excluded a large number of employees of the cadre is non est and unconsititutional and such lists cannot be said to create any right in favour of promotees. The seniority list which excluded a large number of employees of the cadre is non est and unconsititutional and such lists cannot be said to create any right in favour of promotees. It may be mentioned that it was in such a fluid state that the Government for the first time decided that the period of training in the case of direct recruits shall have to be included for the purpose of determining their seniority in the cadre and if such decision is taken it cannot be said that it affects any vested or accrued right of the promotees. It is pertinent to note that so far as promotees are concerned their seniority in the cadre of Assistant Conservators of Forests was determined and continued to be determined by reference to the date of their appointment. Vis-a-vis the promotees the principle of seniority is thus not altered. With respect to the direct recruits there was no principle of fixation of seniority and if the Government by its resolution for the first time provides a principle of fixation of seniority of direct recruits it cannot be said that it would affect the vested or accrued right of the promotees. . ( 61 ) HOWEVER Mr. S. N. Shelat learned Advocate for promotees has relied upon Rule 1 Chapter 5 of General Guidelines issued by the Administration Department in its Hand Book. The said Rule I read as under: chapter 5 seniority 1 Mode of Recruitment: where the recruitment rules provide for appointment by direct selection or by promotion from amongst persons from lower (feeder) cadre service of posts without prescribing any ratio in respect of such appointments the question of fixation of seniority of such candidates from the two different sources is simple: It poses no serious problem. The recruitment rules of this type is of a flexible nature inasmuch as the appointing authority is left free with discretion to make appointments either by (a) direct recruitment wholly or (b) by promotion wholly or (c) by taking recourse to both the modes of recruitment simultaneously. 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 promotees the seniority would be determined with reference to the date of their promotion to long term vacancies. ( 62 ) FROM the aforesaid provision Mr. 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 promotees the seniority would be determined with reference to the date of their promotion to long term vacancies. ( 62 ) FROM the aforesaid provision Mr. Shelat has relied upon the italicized provision and has contended that the seniority of direct recruits is to be determined ordinarily by reference to the date of their appointment. This rule of seniority framed by the General Administration Department may apply but when the date of selection for the cadre of Assistant Conservators of Forests is same and when the direct recruits selected for said cadre are sent for training and when during the period of training they are to be given the regular time scale of pay and are to be subjected to disciplinary control of the authority and when their period of training is to be treated as period of their experience in the cadre of Deputy Conservators of Forests there is in any opinion a prescription of principle of seniority from the date of their joining training and not from the date of their actual appointment. The aforesaid rule is nothing but general guideline precribed as to how the seniority of direct recruits vis-a-vis promotees is to be fixed. Such general guideline cannot confer any indefeasible and absolute vested right on the promotees. Such general guidelines cannot deprive the department of his power to fix the principle of seniority. I am of the opinion that the instructions contained in the aforesaid part are of general nature and cannot be pressed into service for denying the power of the Governments to fix the principle of seniority for direct recruits. The Government has undoubtedly power to fix the principle of seniority and when the statutory rules were absolutely silent if the Government has by executive fiat provided the principle of fixation of seniority for direct recruits in the cadre of Assistant Conservators of Forests it cannot be said that it has thereby affected any vested or accrued rights of promotees. Vis-a-vis the promotees the principle of seniority is laid down from the date of their appointment. Vis-a-vis the promotees the principle of seniority is laid down from the date of their appointment. Vis-a-vis direct recruits it is clarified that the seniority shall be fixed from the date of their joining training and not from the date of their appointment win my opinion such a prescription even by executive fiat has not adversely affected the promotees because what was hitherto not clear vis-a-vis direct recruits is clarified by the Government. I therefore hold that no vested right of the promotees in the cadre of Assistant Conservators of Forests is impaired or infringed by the Government Resolution under challenge legality and Validity of Government Resolution Dated 31/01/1992 ( 63 ) DURING the pendency of these petitions as stated hereinabove the State Government has issued Government Resolution dated 31/01/1992 gist whereof is already set out herein above. By the said resolution for the reasons set-out in the preface thereof the Government has resolved that the period of training spent by direct recruits in the cadre of Assistant Conservators of Forests shall be taken into consideration for the purpose of computation of their seniority and the seniority of direct recruits of 1979 and thereafter in the cadre of Assistant Conservators of Forests is directed to be computed from the date of their being sent for training. ( 64 ) SINCE the aforesaid resolution is issued by the Government after these petitions were filed the validity thereof is challenged by the promotees by amending the petitions Main challenge to the resolution is that under the extent recruitment rules for Assistant Conservators of Forests the direct recruits were required to undergo the course of Forestry for two years at an institution recognised by the Government and to obtain Diploma (or Degree) in Forestry from that institution Under the original rules namely Rule 6 of Recruitment Rules for Assistant Conservators of Forests such trainees were to be paid stipend of Rs. 500. 00 per month and fixed amount of tour expenses each year during training Under Rule 8 of the said Rules it was stipulated that on satisfactory completion of course of training the selected candidates shall be appointed the Class II post of Gujarat Forests on probation for two years. 500. 00 per month and fixed amount of tour expenses each year during training Under Rule 8 of the said Rules it was stipulated that on satisfactory completion of course of training the selected candidates shall be appointed the Class II post of Gujarat Forests on probation for two years. It is submitted that direction contained in the aforesaid Government Resolution to assign the seniority of the trainees from the date of their joining is consistent with the Rule 8 of Recruitment Rules inasmuch as while Rule 8 contemplates birth of Assistant Conservator of Forests from the date of appointment while the Government Resolution seeks to give birth to direct recruit in the cadre of Assistant Conservators of Forests prior to his appointment in the cadre. It is submitted that the aforesaid Resolution virtually supplants the statutory rules and to that extent same is required to be quashed and set aside. It is further submitted that the aforesaid Resolution seeks to provide principle of seniority for direct recruits in the cadre of Assistant Conservators of Forests and since said principle of seniority is contrary to the Recruitment Rules the Recruitment Rules must prevail and executive instruction cannot be permitted to go beyond the statutory rules Lastly it is submitted that by the aforesaid resolution seniority of direct recruit in the cadre of Assistant Conservator of Forests is directed to be modified with effect from 1/09/1979 which in substance would amount to giving retrospective effect to the resolution and since by executive instruction retrospectively the seniority is sought to be affected the exercise of power is bad inasmuch as executive instruction cannot have the retrospective effect so as to nullify the effect of statutory rules namely the Recruitment Rules of Assistant Conservators of Forests. ( 65 ) TO the general proposition that executive instruction cannot supplant the statutory rules no exception can be made. Once the statutory rules are in the field and they occupy the field inconsistent executive instruction cannot be permitted to occupy the same field inasmuch as that would in substance amount to supplanting the seniority rules from the field in which they were operating. Mr. Once the statutory rules are in the field and they occupy the field inconsistent executive instruction cannot be permitted to occupy the same field inasmuch as that would in substance amount to supplanting the seniority rules from the field in which they were operating. Mr. Shelat learned Advocate for promotees has tried to make good this submission by reference to various decisions of the Supreme Court but since such a proposition of law is not doubted and cannot be doubted I am not making speicific reference to those decisions. ( 66 ) IT also cannot be disputed that if the statutory rules occupied the field and executive instructions are issued with respect to the same subject-matter firstly they should not be inconsistent with the statutory rules and secondly they should not be given retrospective effect so as to affect the rights which are acquired under the statutory rules. To this proposition also no exception can be made and it shall have to be accepted as well established proposition of law. ( 67 ) HOWEVER the question which this Court is required to answer is: Was any rule of seniority for the cadre of Assistant Conservators of Forests prescribed by statutory rules namely Recruitment Rules of Assistant Conservators of Forests ? According to Mr. Shelat learned Advocate for promotees ordinarily the date of appointment or date of continuous officiation is the date based on which the seniority is fixed. To such a general proposition that in the absence of any statutory rules and executive instruction ordinarily seniority is to be counted from the date of appointment no exception can be made. However it is difficult to agree with Mr. Shelat when he submits that the Recruitment Rules of Assistant Conservators of Forests prescribe rule of seniority. I have already recorded my findings in paras 36 and 37 of this judgment that Rule 8 does not prescribe the principle of fixation of seniority. Consistent with the findings recorded by me in the said paras I hold that the purpose of Rule 8 was only to prescribe that after completion of training the direct recruit shall have to be appointed. The Rules in fact do not specifically provide as to what will be the status of said trainees after completion of two years training. Consistent with the findings recorded by me in the said paras I hold that the purpose of Rule 8 was only to prescribe that after completion of training the direct recruit shall have to be appointed. The Rules in fact do not specifically provide as to what will be the status of said trainees after completion of two years training. It is required to be noted that the question as to how the period of training should be treated was under consideration of the Government and no final decision was taken by it. Therefore to the question which I have raised in the beginning of this para the answer is that the Recruitment Rules of Assistant Conservators of Forests do not provide any principle of fixation of seniority. ( 68 ) THE question which is required to be raised according to submission of the learned Counsel for promotees is: Whether de hors the recruitment rules of Assistant Conservators of Forests any executive instruction or policy decision was in existence prescribing rule of seniority for direct recruit as well as promotees ? It must be accepted from the preface to the seniority list of Assistant Conservators of Forests published as back as 1990 (which is once again provisional seniority list) it becomes clear that the Government has referred to Resolution of General Administration Department dated 4/12/1986 as a principle for fixation of seniority between direct recruits and promotees. Copy of said resolution was made available to the Court by the learned Government Pleader. From the said Government Resolution it becomes clear that it deals with the situation arising from the decision of the Supreme Court in the case of N. K. Chauhan and Ors. v. State of Gujarat wherein the question of maintaining ratio between direct recruits and promotees was considered and principle of pushing down was applied. It was in the context of maintenance of quota for direct recruits and the promotees and making available the vacancies to anyone of that class as per their right some principle are laid down by the aforesaid resolution so that the quota between direct recruits and promotees is maintained and in case of excess appointments than the quota the incumbent can be pushed down. In fact this resolution which prescribes general rule for the aforesaid purpose cannot be said to be prescribing any rule for fixation of seniority in the cadre of Assistant Conservators of Forests between direct recruits and promotees. I therefore do not think that this resolution prescribes any rule of seniority. In the absence of any executive instruction and statutory rules prescribing rule of seniority in the cadre of Assistant Conservators of Forests Mr. S. N. Shelat has submitted that the principle should be length of service/continuous officiation and or date of appointment. It is true that ordinarily it is the date of appointment which should be the basis for the purpose of fixation of seniority. It is a principle well known to service jurisprudence and well accepted by catena of decisions of the Supreme Court. Therefore it can be said that in the present case there was neither statutory rule nor specific instruction providing for rule of fixation of seniority for the cadre of Assistant Conservators of Forests and the Counsel for the promotees is required to fall back on the general rule that seniority in a cadre should be fixed by the date of appointment of the incumbent in the post. ( 69 ) THE third step in the process of reasoning should be: that if neither the statutory rules nor the executive instructions provide the rule of seniority for the cadre of Assistant Conservators of Forests and if for promotees date of appointment is taken as the basis for the purpose of determining their seniority why not the date of appointment for the direct recruits in the cadre of Assistant Conservators of Forests. ( 70 ) THE question of fixation of seniority of directly recruited Assistant Conservators of Forests was in fact not fully considered. It is pertinent to note that after coming into force of the recruitment rules of Assistant Conservators of Forests in the year 1981 the first attempt to prepare a seniority list of cadre of Assistant Conservators of Forests was made in the year 1987 when the provisional seniority list was prepared and published on 5/08/1987 showing their position as on 1/01/1987 It is pertinent to note that no name of direct recruit of the batch of 1980 or thereafter was included in said seniority list and to that extent the list was incomplete or was defective. If the position of Assistant Conservators of Forests as on 1-1-1987 was to be reflected in the seniority list direct recruits who were appointed even after completion of training must find their names in such provisional seniority list. It is not necessary for this Court to express any opinion on such list because I am told that the seniority list is the subject-matter of challenge in a separate petition. Even the second list which was final seniority list and published on 27/10/1988 showing the position of Assistant Conservators of Forests as on 1-1-1987 also suffers from the same vice from which the first list suffers. In this list also unfortunately for the reasons not known to this Court the direct recruits of batch of 1980 and thereafter do not find their berth. I am of the opinion that vis-a-vis direct recruits either no decision was taken as to how their seniority should be fixed or the matter was under consideration of the Government. Fact remains that direct recruits of the batch of 1980 or thereafter did not find their berth anywhere in the first two seniority lists referred hereinabove. ( 71 ) AT this stage it is also required to be mentioned that the direct recruits have made representations to the Government that the period of their training after selection should be counted as part and parcel of service for the purpose of fixing their seniority. Such representations were pending consideration before the Government. It is also required to be noted that the President of Forest Research Institute and College Dehradun has addressed letter to the Secretary Forest Department Government of India on 17/11/1981 recommending that other direct recruits should be treated as in-service trainees by giving them appointment first and thereafter sending them for training or their training period should be treated as in-service for the purpose of their seniority. It is also required to be noted that the Government found that in Indian Forest Services and in the Forest Services of a few States practice of appointing the direct recruits first and sending them for training afterwards as in-service trainees is in vogue so that period of training is treated as part and parcel of service for the purpose of fixing their seniority. The Government was also conscious of the fact that even during the period of training trainees were required to be given minimum time scale of pay. All such trainees were subjected to disciplinary control. Keeping the aforesaid factors in mind with a view to bring about parity and with a view to see that the period of two years of the trainees is not permanently lost so far as the direct recruits are concerned if the decision is taken by the Government so as to prescribe rule of seniority of direct recruits in the cadre of Assistant Conservators of Forests for the first time by the Government Resolution dated 31/01/1992 in my opinion it was a welcome decision which was very badly needed. By the said resolution the Government has not adversely affected any principle of seniority vis-a-vis the promotees. Date of their appointment in the cadre of Assistant Conservators of Forests after their selection is the basis of their seniority and that is not adversely and prejudicially affected. However for directly selected candidates who on selection were required to go for training of Forestry for a period of two years are now conferred status of in-service trainees at least by recognising their period of training as in-service period for the purpose of seniority. This very result the Government could have achieved by appointing them first in the cadre and thereafter sending them for training. Since the Government has appointed them after completion of their training can it be said that the period of training will be permanently lost ? Vis-a-vis direct recruits the Government has taken conscious decision by taking into consideration the aforesaid relevant factors and such a decision tries to recognise that both the direct recruits-and the promotees were born in the cadre at a time when they were selected and in case of promotees when they were appointed in the cadre of Assistant Conservators of Forests and in the case of direct recruits when they were sent for training. The purpose is to achieve uniformity thereby leaving little scope for heart-burning. In other services such as Indian Forest Services and Forest Services of other States this practice is followed. Period of training is treated as part ant parcel of service. This very result is now achieved by the Government by the aforesaid Government Resolution. The purpose is to achieve uniformity thereby leaving little scope for heart-burning. In other services such as Indian Forest Services and Forest Services of other States this practice is followed. Period of training is treated as part ant parcel of service. This very result is now achieved by the Government by the aforesaid Government Resolution. Undoubtedly by said Government Resolution direct recruits will be seniority on the basis of their joining the training but that would not in anyway adversely affect the principle of seniority. Firstly I have already found that in fact no principle of seniority is presceibed by the statutory rules or executive instruction. Therefore it is open to executive to frame rule of seniority for directly recruited Assistant Conservators of Forests. Such Resolution dated 31/01/1992 therefore does not run counter or inconsistent with any of the statutory rules or executive instruction and therefore it cannot be said that the Government Resolution aforesaid supplants statutory rule or executive instruction. If there was no statutory rule or executive instruction prescribing the rule of seniority the Government Resolution dated 31 1992 cannot be read as one providing inconsistent instruction or principle of seniority to one which was already prescribed. The submission of Mr. Shelat learned Advocate for promotees must therefore fail and the challenge to the aforesaid Government Resolution cannot be accepted and the Government shall have to be permitted to fix seniority of directly recruited Assistant Conservators of Forests on the basis of their joining the training and of the promotees on the basis of their date of appointment in the cadre of Assistant Conservators of Forests. Since no seniority list is so far finally prepared based on the aforesaid rule in my opinion it would be just and proper to see that the said seniority list is first prepared and thereafter select list is prepared. Criterion for promotion to the post of Deputy Conservators of Forests is that of proved merit and efficiency and therefore it would be in the fitness of things to direct the State Government to prepare the seniority list of Assistant Conservators of Forests based on the aforesaid observations and after seniority list is prepared the State Government is directed to prepare the select list for the vacancies available and thereafter to issue orders of promotion to selected candidates for the cadre of Deputy Conservators of Forests. ( 72 ) BEFORE I part with these matters incidentally submission of Mr. Shelat learned Advocate for promotees is required to be noted. Mr. Shelat has submitted before this Court that the State Government as well as the learned Counsel appearing for the direct recruits want to fall back upon Rule 2 of the Recruitment Rules for Deputy Conservators of Forests for the purpose of justifying fixation of seniority from the date of joining. He submits that the Recruitment Rules for Deputy Conservators of Forests cannot be used for the purpose of fixation of seniority in the cadre of Assistant Conservators of Forests. It shall have to be accepted that the recruitment rules for Deputy Conservators of Forests cannot be used for the purpose of fixing seniority for the cadre of Assistant Conservators of Forests. but in my opinion if the recruitment rules for Deputy Conservators of Forests prescribe that the period of training of direct recruit shall be treated as experience for the purpose of rendering them eligible for the cadre of Deputy Conservators of Forests no Government can afford to turn a blind eye to the said relevant factor while fixing criterion for seniority for the direct recruits in the cadre of Assistant Conservators of Forests. Therefore though it is true that the Recruitment Rules for Deputy Conservators of Forests cannot be used for the purpose of fixing seniority of Assistant Conservators of Forests it shall have to be observed that the principle of seniority can be fixed in such a manner so as not to render the recruitment rules for Deputy Conservators of Forests nugatory. It is required to be noted that the post for the cadre of Deputy Conservator of Forests is only to be filled in by promotion from the cadre of Assistant Conservators of Forests. Therefore the post of Assistant Conservator of Forests is the only source from where the posts of Deputy Conservators of Forests will be filled in. Therefore if for promotion to the cadre of Deputy Conservator of Forests training is to be counted the question will be as to whether such period of training can be excluded while computing their seniority. The answer must be in the NEGATIVE i. e. IT CANNOT BE EXCLUDED. Therefore if for promotion to the cadre of Deputy Conservator of Forests training is to be counted the question will be as to whether such period of training can be excluded while computing their seniority. The answer must be in the NEGATIVE i. e. IT CANNOT BE EXCLUDED. The promotees want this court to hold that the period should be excluded from consideration because after training the direct recruits are given appointment under Rule 8 for the cadre of Assistant Conservators of Forests. The factum of appointment after training cannot result into denial of benefit to two years training to such direct recruits. I therefore do not accept the submission of Mr. Shelat that in fact the recruitment rules of Deputy Conservators of Forests are being projected by the Government for the purpose of fixing seniority of direct recruits in the cadre of Assistant Conservators of Forests. ( 73 ) MR. Shelat learned Advocate for promotees has also by reference to the recruitment rules for Rangers submitted that at the time of their selection in the cadre of Ranger even promotees were required to undergo the course of training for a period of two years and on completion of said training they were appointed in the cadre of Ranger. He submitted that the period of two years training was not computed in case of Rangers while computing their seniority in the cadre of Rangers. Same treatment is required to be given to the direct recruits in the cadre of Assistant Conservators of Forests and that since the promotees have lost two years training in the cadre of Ranger the direct recruit in the cadre of Assistant Conservators of Forests cannot get the benefit of training as period spent on duty. The submission cannot be accepted firstly because the grievance in this behalf can be made by the Rangers or promotees to the Government and it is for the Government to consider their case as to whether the period spent on training should be included as part and parcel of their service. It is required to be noted that the direct recruit in the cadre of Assistant Conservator of Forests from the very beginning started making representations and have continuously represented to the Government that the period of their training should be treated as part and parcel of their service. It is required to be noted that the direct recruit in the cadre of Assistant Conservator of Forests from the very beginning started making representations and have continuously represented to the Government that the period of their training should be treated as part and parcel of their service. Secondly in the year 1987 while framing statutory rules for the cadre of Deputy Conservators of Forests the Government has thought it fit to recognise the period of two years training as experience in the cadre of Assistant Conservator of Forests and has rendered the directly selected Assistant Conservators of Forests eligible for consideration for the post of Deputy Conservators of Forests by including the said two years period of training as their valid experience. The grievance for not taking into consideration the period of training in the cadre of Ranger cannot be made in a petition where the petitioners are seeking enforcement of their seniority in the cadre of Assistant Conservators of Forests. In fact the promotees and the direct recruits who were promoted/appointed to the cadre of Assistant Conservators of Forests pursuant to process of one selection cannot be subject to separate principle of seniority namely that of joining the post in case of promotees and that of actual appointment in case of direct recruits. After their selection the direct recruits were sent for training which could have been treated as in-service training by first giving them appointment and afterwards sending them for training. However in the State of Gujarat they were first sent for training and thereafter orders of appointment were given to them. From this situation alone it cannot be contended that their seniority should be fixed by reference to the date of appointment and not by reference to the date on which they joined training. It is not permissible for the Court to strike down the Government Resolution only because of the disparity that existed in the cadre of Ranger. The grievance about that fact could have been made at appropriate time to the Government and not to the Court. If that situation is accepted without any objection at any point of time the validity of subsequent prescription of seniority cannot be assailed. Therefore even though some disparity may appear in the cadre of Ranger the promotees cannot put forward that disparity at this stage when they have suffered that disparity without demur. If that situation is accepted without any objection at any point of time the validity of subsequent prescription of seniority cannot be assailed. Therefore even though some disparity may appear in the cadre of Ranger the promotees cannot put forward that disparity at this stage when they have suffered that disparity without demur. ( 74 ) INCIDENTALLY it may be mentioned that directly recruited Rangers had get the benefit of two years training of completion of 8 years as they become eligible for promotion to the cadre of Assistant Conservators of Forests. Therefore directly recruited Ranger do get preferential treatment vis-a-vis promotee Ranger while being considered for the cadre of Assistant Conservator of Forests and therefore also presumably the period of training in the cadre of Ranger is not included as part and parcel of their service. However it is not possible for this Court to examine the legality or otherwise of the exclusion of said period of training in the cadre of Ranger as that is not the subject-matter of challenge before this Court. ( 75 ) AFORESAID were only the submissions which were made by the learned Counsel for the promotees as well as direct recruits. ( 76 ) IN the result Special Civil Application No. 896 filed by the promotees fails in view of findings recorded by me hereinabove and no direction can be issued to the State Government to operate the select list dated 27-10-1988. Rule is therefore discharged. No costs. ( 77 ) IN view of my conclusions Special Civil Application No. 1447/91 shall have to be allowed by declaring that the select-list prepared by the respondents for the post of Deputy Conservator of Forests is illegal and unconstitutional and by further quashing and setting aside the same it is further declared that the Government Resolution dated 31/01/1992 is legal and valid and the Government is directed to prepare fresh provisional seniority list for the cadre of Assistant Conservators of Forests on the basis of observations made in the text of this judgment and to prepare select-list after such seniority list is prepared. Rule is made absolute accordingly with no order as to costs. ( 78 ) AT this stage Mr. S. N. Shelat learned Advocate for the promotees states that the order directing maintenance of status quo granted earlier should be continued so as to enable the promotees to have further recourse to law. Rule is made absolute accordingly with no order as to costs. ( 78 ) AT this stage Mr. S. N. Shelat learned Advocate for the promotees states that the order directing maintenance of status quo granted earlier should be continued so as to enable the promotees to have further recourse to law. Request being reasonable it is granted and the respondents are directed to maintain status quo qua promotion to the cadre of Deputy Conservators of Forests till 12/04/1993 petitions disposed off. .