R. K. ABICHANDANI, J. ( 1 ) IN this group of matters the controversy mainly revolves around counting of two years training period of the direct recruits toward seniority in the cadre of Assistant Forest Officers Class-II in the Gujarat Forest Service. ( 2 ) LETTERS Patent Appeal No. 195/93 arises from Special Civil Application No. 896 of 1991 which was filed by the promotees praying for restraining the respondents from revising the final seniority list of Assistant Forest Officers published on 27 October 1988 showing the seniority position as on 1st January 1987 and for directing the respondents to make promotions to the post of Deputy Conservator of Forests (GFS Class-I) from the select list prepared on the basis of the final seniority list of 1988. ( 3 ) LETTERS Patent Appeal No. 196 of 1993 arises from Special Civil Application No. 144//91 filed by some direct recruits praying for a direction on the respondents to consider the case of the petitioners for promotion to the post of Deputy Conservator of Forests in light of the provisions contained in Deputy Conservator of Forests (GFS) Recruitment Rules 1987 by treating the training period of 2 years as a period in service. ( 4 ) SPECIAL Civil Application No. 877 of J988 and other matters of this group were heard alongwith these Letters Patent Appeals at the instance of the learned Counsel for the parties. In Special Civil Application No. 877 of 1988 filed by direct recruits the provisional seniority list of Assistant Forest Officers published on 5th August 1987 has been challenged and a direction is sought that the respondents should prepare a fresh list according to the rota and quota and as per the ratio of promotees and direct recruits prescribed under the Rules of recruitment to the post of Assistant Conservator of Forests. It is also prayed that if the interpretation placed by the Government on these Rules while preparing the provisional seniority list were accepted these Recruitment Rules should be declared to be violative of Articles 14 and 16 of the Constitution. ( 5 ) SPECIAL Civil Application No. 4400 of 1993 is filed by some promotees who have prayed for a declaration that the executive instructions contained in the Resolution dated 31. 1. ( 5 ) SPECIAL Civil Application No. 4400 of 1993 is filed by some promotees who have prayed for a declaration that the executive instructions contained in the Resolution dated 31. 1. 1992 cannot substitute the Assistant Conservator of Forests (GES Class-II) Recruitment Rules 1981 and for setting to set aside provisional seniority list of the Assistant Conservator of Forests published on 29. 1 showing the position as on 1. 1. 1992. Special Civil Application No. 1 109 of 1988 filed by two promotees is for a declaration that Deputy Conservator of Forests (GES Class-I) Recruitment Rules 1987 are null and void. The gradation list of Assistant Conservator of Forests as on 1. 1. 1990 is also challenged in this petition. ( 6 ) SPECIAL Civil Application No. 1696/91 prays for setting aside the provisional seniority list as on 1. 1 and seeks a direction on the respondents to place the petitioner-promotee above the direct recruits and to consider him for promotion as Deputy Conservator of Forests on the basis of continuous service as Assistant Conservator of Forests. ( 7 ) SPECIAL Civil Application No. 1403 of 1993 filed by two promotees prays for setting aside the provisional seniority list published on 29. 1. 1993 of the Officers of GSFS Class-II as on 1. 1. 1992 and seeks a direction on the respondents to reckon the seniority of these promotees in the cadre of Assistant Conservator of Forests Class-II from the date of actual officiation for all purposes. ( 8 ) SPECIAL Civil Application No. 2124 of 1986 is filed by direct recruits paying for a direction on the respondents to prepare a seniority list of Assistant Conservator of Forests in the ratio of 2 as prescribed by the Recruitment Rules and to take such seniority list in to account for making promotions to the posts of Deputy Conservator of Forests. ( 9 ) RECRUITMENT to the post of Assistant Conservator of Forests (Gujarat Forests Service Class-II) is made under the Rules framed under Article 309 of the Constitution on 25th August 1981 from two sources-namely promotion from amongst the persons working as Range Forest Officers or by direct selection. ( 9 ) RECRUITMENT to the post of Assistant Conservator of Forests (Gujarat Forests Service Class-II) is made under the Rules framed under Article 309 of the Constitution on 25th August 1981 from two sources-namely promotion from amongst the persons working as Range Forest Officers or by direct selection. The appointments to the post of Rangers is also governed by Rules framed under Article 309 known as Rangers (Subordinate Forests Service) Recruitment Rules 1969 Appointment to the post of Rangers is made by promotion from amongst the Foresters or by direct selection. The direct recruits in the cadre of Rangers have to undergo under Rule 10 two years training before they could be appointed as Rangers under Rule 30 of their Recruitment Rules. Admittedly the said period of 2 years training which the Rangers have to undergo is not counted towards their seniority. Even the direct recruits to the posts of Assistant Conservator of Forests are under the Recruitment Rules required to undergo two years training under Rule 6 before they could be appointed to the post under Rule 8 of their Rules. The quota of 2:1 for promotion and direct recruitment in the cadre of Assistant Conservator of Forests came to be prescribed with effect from 21. 4. 1973. It appears that from 21. 4. 1973 to 31. 3. 1974 there were no appointments made to the cadre of Assistant Forest Officers through either source. The Assistant Conservator of Forest Recruitment Rules framed on 25 August 1981 provided a scheme under which the direct recruits could be selected and sent for training for two years before they could be appointed and therefore the training was pre-service training. The direct recruit trainees therefore made representations for treating the training period as inservice training so that it could be counted towards their seniority. The President of Forest Research Institute and Colleges Dehradun wrote a letter dated 17. 11 to the Secretary Forests Department Government of India recommending to treat the trainees as inservice trainees from the date they were selected on the analogy of the trainees in the Indian Forest Service who were appointed in service before being sent for training. THE Government did not heed to such recommendation and the provisional seniority list was published on 5. 8. 1987 showing the position of the Officers as on 1. 1. 1987. This seniority list came to be finalised on 27. 10. THE Government did not heed to such recommendation and the provisional seniority list was published on 5. 8. 1987 showing the position of the Officers as on 1. 1. 1987. This seniority list came to be finalised on 27. 10. 1988. Thereafter another seniority list dated 8. 1. 1990 was published showing the position of these Assistant Forest Officers as on 1. 1. 1990. where was not much difference between the seniority list published on 8. 1 and the final seniority list published on 27. 1 It may be noted that the Government had on 4. 12. 1986 passed a resolution on fixation of seniority between direct recruits and promotees incorporating the push down theory. This Resolution was passed keeping in view the decision of the Supreme Court in N. K. Chauhan vs. State of Gujarat and Ors. AIR 1977 SC 251 . In October 1987 a select list was drawn for appointment to the post of Deputy Conservator of Forests. It is said that the said select list was approved on 19. 7 The Rules for appointment to the post of Deputy Conservator of Forests were published under Notification dated 8th May 1987 Under these Rules appointment to the post of Deputy Conservator of Forests (Class-I) is to be made by promotion from amongst Assistant Conservator of Forests (Class-II) who have put in atleast 8 years service (including training period in the Forest College) on the post of Assistant Conservator of Forests; the criterion of promotion being proved merit and efficiency. Civil Suit No. 699 came to be filed by some direct recruits in the Civil Court at Ahmedabad (Rural) praying for restraining the Government not to operate the select list and for directing it to compute the training period of two years towards seniority. The Government filed written statement defending the said suit taking up the stand that the selected candidate undergoing the course of training specified in Rule 6 of the Recruitment Rules was only a trainee and his appointment as Assistant Conservator of Forests was a subsequent event conditional upon such training. This stand is reflected in affidavit dated 12th December 1990 filed on behalf of the Government in Regular Civil Suit No. 699 of 1990. Thereafter a note was filed on 8. 2. This stand is reflected in affidavit dated 12th December 1990 filed on behalf of the Government in Regular Civil Suit No. 699 of 1990. Thereafter a note was filed on 8. 2. 1991 in the said suit on behalf of the Government that the Government had accepted as a matter of principle to take into consideration the training period of directly recruited Assistant Conservator of Forests for the purpose of seniority. It was stated in the said note that action for giving retrospective effect in the said matter had been undertaken. On the basis of the said note filed by the Government the suit came to be withdrawn by the direct recruits. It appears that contemplating the stand taken up by the Government some promotees had filed Special Civil Application No. 896 of 1991 on 2. 1. 1991 for restraining the Government not to revise the seniority list of 1988 and for a direction to issue appointment orders from the select list approved. On 31. 1. 1992 Government came out with a Notification granting benefit of training period retrospectively from 1979 to the direct recruits which prompted the amendment of Special Civil Application No. 896 of 1991 for challenging the said resolution dated 31. 1. 1992. Thereafter a provisional seniority list as on 1. 1. 1992 was published on 29. 1. 1993 showing the position of the Assistant Conservator of Forests on the basis of the administrative instructions contained in the resolution dated 31. 1. 1992 which is the subject matter of challenge in Special Civil Application No. 4400 of 1993 and Special Civil Application No. 1403 of 1993. ( 10 ) SPECIAL Civil Application Nos. 896 of 1991 and 1447 of 1991 came to be decided on 20 and the learned Single Judge dismissed Special Civil Application No. 896/91 holding that no direction could be issued to the State Government to operate the seniority list published as on 27. 10. 1988. The Special Civil Application No. 1447/91 was allowed declaring that the select list prepared by the respondents for the post of Deputy Conservator of Forests was illegal and unconstitutional and setting aside the same. It was further declared that the Government Resolution dated 31. 1. 10. 1988. The Special Civil Application No. 1447/91 was allowed declaring that the select list prepared by the respondents for the post of Deputy Conservator of Forests was illegal and unconstitutional and setting aside the same. It was further declared that the Government Resolution dated 31. 1. 1992 was legal and valid and the Government was directed to prepare fresh provisional seniority list for the cadre of Assistant Conservator of Forests on the basis of the observations made in the judgment and to prepare a select list after such seniority list is prepared. ( 11 ) IT was contended by the learned Counsel Mr. S. N. Shelat who appeared on behalf of the promotees that the decision taken under the Government Resolution dated 31. 1. 1992 to reckon the period of training of the directly recruited Assistant Conservator of Forests for the purpose of seniority was arbitrary and contrary to the provisions of the Recruitment Rules for the posts of Assistant Conservator of Forests. It was argued that no retrospective effect could be given to such administrative orders in the face of the Recruitment Rules. It was contended that since under the Recruitment Rules candidates selected for direct recruitment become eligible and are given appointment to the post of Assistant Conservator of Forests on probation only after satisfactory completion of training they cannot be treated to have joined the service merely upon their selection for undergoing the training. It was further contended that the seniority of these promotees was fixed in the lower cadre of Range Forest Officers in which they were direct recruits only from the date of actual appointment though they too had undergone a two years training course before appointment. Therefore not counting the period of two years training in respect of direct recruits to the post of Rangers and counting the two years period of training in respect of direct recruits to the post of Assistant Conservator of Forests was discriminatory and violative of Articles 14 and 16 of the Constitution The learned Counsel Mr. S. V. Raju and Mr. A. N. Patel appearing for other promotees have adopted the contentions canvassed by Mr. S. V. Raju and Mr. A. N. Patel appearing for other promotees have adopted the contentions canvassed by Mr. Shelat and have further contended that the promotees should not be pushed down while fixing inter-se seniority and they should be given seniority from the actual date of officiation in the post even if they were in excess of the quota prescribed for promotees. ( 12 ) THE learned Counsel Mr. B. V. Naik and Mr. Mukul Sinha who appeared for the direct recruits contended that the word appointment in rule 8 of the Assistant Conservator of Forests Recruitment Rules should be read as posting and the two years training period should be treated as in-service training because the selection process gets over before sending the direct recruits for training. It was further argued that there was no specific rule of seniority framed in respect of the said cadre of Assistant Conservator of Forests and therefore it was open to the Government to prescribe the basis of seniority under the resolution dated 31. 1. 1992. It was contended that in various other services training was treated as in-service period and seniority was counted from the date of joining the training. An analogy was sought to be drawn from the Rules governing the Indian Forest Service and it was argued that the impugned resolution dated 31. 1. 1992 only reiterates what was recognized in other services. It was also argued that the said resolution is in tune with the Recruitment Rules for the posts of Deputy Conservator of Forests under which the period of training was included in the service period of 8 years required as the eligibility criteria. It was further contended that candidates undergoing training are now paid minimum of the pay-scale and therefore it should be inferred that they are treated as employees of the Government. It was further argued that the training period was computed towards pensionary benefits under Rule 9 (16) (e) of the Bombay Civil Service Rules and therefore it should be treated as in-service training. ( 13 ) MR. Tanna learned Counsel appearing for the direct recruits in Special Civil Application No. 877188 argued that seniority list was not prepared as per standard of rota and quota and the direct recruits should be given date of seniority anterior to their actual appointment in view of the quota rule in which rota was implied. ( 13 ) MR. Tanna learned Counsel appearing for the direct recruits in Special Civil Application No. 877188 argued that seniority list was not prepared as per standard of rota and quota and the direct recruits should be given date of seniority anterior to their actual appointment in view of the quota rule in which rota was implied. It was argued that the Government had not followed the decision of the Supreme Court in case of N. K Chauhan vs. State (supra ). ( 14 ) THE scheme of the Recruitment Rules for the post of Assistant Conservator of Forests provides for various stages for direct recruitment. The initial stage is of selection on the basis of the eligibility criteria prescribed by Rule 4. Thereafter comes the stage of sending the selected candidate for undergoing practical training for 8 weeks under a Deputy Conservator of Forests and a walking test prescribed by Rule 7 and then comes the stage of sending the selected candidates for undergoing a course of forestry for 2 years at an institution recognized by the Government and to obtain diploma (or degree) in forestry from that institution. Finally comes the stage of making appointment of Class-II cadre of Gujarat Forest Service as Assistant Conservator of Forests on probation for 2 years as provided by Rule 8. The relevant rules 6 7 and 8 read as under :"rule 6: -The selected candidate shall be required to undergo a course of Forestry for two years at an institution recognised by Government and to obtain a Diploma (or Degree) in Forestry from that institution. Government shall pay an annual sum of Rs. 3 500 as tution fees stipend of Rs. 500/- p. m. tour expenses of Rs. 2 400 for two years for each candidate selected for training subject to the condition that he executes an agreement with two sureties binding himself to work diligently at such institution and serve Government for not less than 5 years after obtaining a Diploma (or Degree) in Forestry from the Institution and refund all money expended by Government on his training at the Institution with interest at 6 per cent per annum if he fails to carry out the terms and is found unsuitable for employment due to misconduct. government may prescribed the Institute at which the candidate should undergo the training in Forestry. government may prescribed the Institute at which the candidate should undergo the training in Forestry. ""rule 7: - Before joining the institution referred to in the rule 6 the selected Candidate shall unless he is specially exempted from this requirement by Government be required to undergo a course of practical training for eight weeks under a Deputy Conservator of Forests and a test of the ability of the candidate to make in four hours a journey of 25. 0 Kilometers on foot. ""rule 8:- On satisfactorily completing the course of training prescribed in rules 6 and 7 the selected candidate shall be appointed to Class-II of the Gujarat Forest Service as Assistant Conservator of Forests on probation for two years. " ( 15 ) A bare reading of Rule 6 clearly indicates that the candidate selected for undergoing the course of Forestry for two years from a recognized institution has not as yet entered the service. His successful completion of two years Diploma (or Degree) course of Forestry is a pre-condition to his employment. The agreement which he is required to execute contains a binding that he will serve Government for not loss than 5 years after obtaining Diploma (or Degree) in Forestry which amply shows that the period of two years course that he undertakes is not a service period. If he is found unsuitable for employment due to misconduct or fails to carry out the terms of the agreement he is required to refund all money expended on his training by the Government with stipulated interest. The words unsuitable for employment in the context also indicates that the employment has not yet commenced. The provision that if the candidate is found unsuitable for employment due to misconduct he has to refund the amount expended on him cannot be construed so as to mean that disciplinary control exercised by an employer over an employee is brought into existence as was suggested on behalf of the direct recruits. The Counsel for the direct recruits laid much stress on the word misconduct appearing in Rule 6 and contended that the term is used in context of conduct of an employee in service parlance and therefore these selected candidates are treated as employees. This contention appears to have found favour with the learned Single Judge. The Counsel for the direct recruits laid much stress on the word misconduct appearing in Rule 6 and contended that the term is used in context of conduct of an employee in service parlance and therefore these selected candidates are treated as employees. This contention appears to have found favour with the learned Single Judge. Misconduct in the context of Rule 6 would mean misconduct while undergoing the two years Diploma course in the recognized institution and it is akin to misconduct of a student in an educational institution. It only means that if the candidate has misconducted himself while undergoing the course he would be found unsuitable for employment and would forfeit the chance of appointment. There is no question of treating him as an employee to be governed by any Discipline and Conduct Rules. It therefore cannot be inferred from the use of word misconduct in Rule 6 that the candidate is treated as an employee of the Government. ( 16 ) IT is only after the candidate successfully completes the training course provided under Rules 6 and 7 that he can be appointed to Class-II of the Gujarat Forest Service as Assistant Conservator of Forests on probation for two years. This is the point of entry in service and these statutory rules leave no scope for ante-dating his entry in service to any point of time prior to such appointment. Admittedly in case of these direct recruits appointment orders as contemplated by Rule 8 were issued only after their successful completion of the training course under Rules 6 and 7. In this context we may refer to an order dated 19th October 1987 by which appointments were given to the direct recruits against super-numerary posts of Assistant Conservator of Forests. In the said order against 16 super-numerary posts of Assistant Conservator of Forests appointments were given to 16 directly recruits who had successfully undergone two years diploma course. In paragraphs 2 of the said order it is stated as follows :" The above sixteen trainees are appointed on the sixteen super-numerary posts of Assistant Conservator of Forests sanctioned by Government. Their service on the super-numerary posts shall not be taken into account for the purpose of seniority. Their seniority shall have to be taken into account from their regular appointment on the posts of Assistant Conservator of Forests. Their service on the super-numerary posts shall not be taken into account for the purpose of seniority. Their seniority shall have to be taken into account from their regular appointment on the posts of Assistant Conservator of Forests. The appointment as above of the respective trainee has been made on condition of his giving undertaking in writing to the above effect to the Chief Conservator of Forests Baroda. " ( 17 ) IT would appear from the above that the direct recruits were never considered as in service while they were on training and their appointment depended upon the availability of vacancies in the cadre. It also appears that at the time when the selected candidates were sent on training they were required to give an undertaking that after satisfactorily completing the training they shall not claim appointment as Assistant Conservator of Forests but shall wait for appointment till vacancy for direct recruitment becomes available. A copy of such undertaking is produced in Special Civil Application No. 896 of 1991 which was given by one M. M. Bhalodi on 1. 4. 1991. Such an undertaking is ordinarily taken from the candidate selected for training as stated in the additional affidavit-in-reply dated 29. 11. 1992 filed by the respondent No. 4 in Special Civil Application No. 1447 of 1991. ( 18 ) THE statutory position emanating from Rules 6 7 and 8 that the appointment of a direct recruit takes place only after his successful completion of training course cannot be contravened by issuing administrative instructions which have the effect of treating these candidates as appointed at the stage when they were only selected and sent for undergoing the training course. Under the Resolution dated 31. 1. 1992 it was decided by the Government to take into account the training period of directly recruited Assistant Conservator of Forests for the purpose of seniority. It is provided therein that the seniority of the Assistant Conservator of Forests selected in 1979 shall have to be determined from the date of their being sent for training. It was further decided that a provisional seniority list showing the position of Assistant Conservator of Forests on as 1. 1 will have to be modified as per this order and a fresh seniority list shall have to be issued. As noted above a fresh seniority list on the basis of this resolution was published on 29. It was further decided that a provisional seniority list showing the position of Assistant Conservator of Forests on as 1. 1 will have to be modified as per this order and a fresh seniority list shall have to be issued. As noted above a fresh seniority list on the basis of this resolution was published on 29. 1 showing the position of the Officers of GSFS Class II on 1. 1. 92. The resolution on 3. 1 in so far as it computes the training period towards seniority of the direct recruits attempts to bring about a situation whereby the direct recruit who is to be appointed under the statutory provision of Rule 8 only after completion of the training course is deemed to have been appointed at the time when he is deputed for training so that his training period may count towards seniority in the cadre in which he had not yet entered as per the statutory provisions. In our opinion therefore the administrative instructions contained in the resolution dated 31. 1 are clearly violative of the statutory rules of Recruitment to the post of Assistant Conservator of Forests more particularly rule 8 and deserve to be struck down. ( 19 ) IN Prafulla Kumar Swain vs. Prakash Chandra Misra J. T. 1993 (1) S. C 360 = 1993 (3) S. C. C 18 the Supreme Court dealing with Orissa Forest Service Class-II Recruitment Rules 1959 noted that nowhere in the Recruitment Rules of 1959 it was specified that the services of a direct recruit under the Government shall be reckoned from the date of selection in the competitive examination. It was also noted that after successful completion of training when the appointment order was issued the direct recruits were to be on probation like promotees. Both of them had to undergo probation. Regulation 12 (c) provided that period of training was not to be reckoned as Government service. In the light of the provisions the Supreme Court held that it was not possible to accept the contention advanced on behalf of the direct recruites that their seniority must be reckoned from the date of their recruitment. The Supreme Court did not base its conclusion only on regulation 12 (c ). In our opinion absence of a provision similar to regulation 12 (c) in the Gujarat Rules does not make any difference. The Supreme Court did not base its conclusion only on regulation 12 (c ). In our opinion absence of a provision similar to regulation 12 (c) in the Gujarat Rules does not make any difference. Even under the Assistant Conservator of Forests Recruitment Rules it is specified that the appointment of a direct recruit shall be made only after successful completion of the training and nowhere was it specified that the services of a direct recruit shall be counted from the date of selection for training. As provided by Rule 8 the appointment after successful completion of training is only on probation. By incessary implication this would mean that the period of training is not to be reckoned as Government service. As held by the Supreme Court in Prafullakumar Swain (supra) the direct recruitment connotes and signifies enlistment acceptance selection or approval for appointment. This is not the same thing as actual appointment or posting in service. In contra-distinction the word appointment means an actual act of posting a person to a particular office. ( 20 ) THE effect of Resolution dated 31. 1. 1992 was to give an anterior date of appointment to the direct recruits even over the promotees who were adjusted within their quota. The Government has no lawful authority to prejudicial affect the civil rights of a Government servant retrospectively by a mere executive fiat. The change in the seniority position is sought to be made as a result of administrative instructions retrospectively and in violation of the statutory rules as aforesaid. As held by the Supreme Court in Paluru Ramkrishnaiah vs. Union of India (1989) 2 S. C. C 541 though in absence of legislative rules it is competent to the concerned Government Central or State to take a decision in exercise of its power under Article 73 or Article 162 of the Constitution as the case may be an executive instruction can make a provision only with regard to a matter which is not covered by Rules and such executive instruction cannot over-ride any provision of an existing rule. In Sant Ram Sharma vs. State of Rajasthan -AIR 1967 S. C 1910 at 1914 it was held that the Government cannot amend or supersede statutory rules by administrative instructions but if the rules are silent on any particular point Government can; up the gaps and supplement rules and issue instructions not inconsistent with the Rules already framed. IN D. . 5. Sharma vs. Union of India AIR 1989 S. C 1071 the Supreme Court held that the general rule is if seniority is to be regulated in a particular manner in a given period it shall be given effect to and shall not be varied to disadvantage retrospectively. In N. C. Singhal vs. D. General Armed Forces -AIR 1972 S. C 628 it was held that the Government has no power to alter or modify the conditions of service of a Government servant with retrospective effect to the prejudice of the Government servant. . ( 21 ) AS held by us hereinabove the impugned resolution dated 31. 1. 1992 is inconsistent with the Recruitment Rules for the post of Assistant Conservator of Forests. Moreover it is invalid even on the ground that it is given retrospective effect from 1977. In absence of any specific rule of seniority the inter-se seniority between the direct recruits and promotees should be determined by continuous length of service. In Ashok Gulati vs. B. S. Jain AIR 1987 SC 424 it was held that it must be taken to be well established that in absence of any other valid principle of seniority the inter-se-seniority between direct recruits and promotees should as far as possible be determined by the length of continous service whether temporary or permanent in a particular grade or post. In K. Narayana vs. State of Karnatka AIR 1994 SC 55 it was held the seniority is an incident of service which cannot be eroded or curtailed by rule which operates indiscriminately. ( 22 ) ANALOGY was sought to be drawn by the learned Counsel appearing for the direct recruits from the Indian Forest Service Rules and it was contended that just as the training period is counted towards service under those Rules similar meaning should be attributed to the Assistant Conservator of Forests Recruitment Rules. ( 22 ) ANALOGY was sought to be drawn by the learned Counsel appearing for the direct recruits from the Indian Forest Service Rules and it was contended that just as the training period is counted towards service under those Rules similar meaning should be attributed to the Assistant Conservator of Forests Recruitment Rules. As observed above there is no scope for considering the initial selection as the date of appointment of these direct recruits in view of the statutory provisions contained in Rules 6 7 and 8. Under the Indian Forest Service (Probation) Rules 1968 there is a specific provision contained in proviso to rule 3 (2) that any period of training for diploma course in Forestry at the institute or in any institute recoginsed by the Central Government as equivalent thereto when followed by appointment to a Gazetted post in the State Forest Service may be counted towards the period of probation on the recognition of the State Government. From Rule 6 of the said Rules it is clear that a direct recruit is sent for undergoing training after he is appointed on probation. Therefore the entire scheme of these rules is different and the statutory provisions treating the training period as in-service period which are contained in the Indian Forest Service Rules are not found in the Gujarat Rules and cannot be read into them. In the Indian Forest Service (Appointment by promotion) Regulations 1966 Explanation- of Regulation 5 makes a clear provision that in computing the period of continuous service for the purpose of the said regulation the training period shall be included. No such specific provision is contained in the Assistant Conservator of Forests Recruitment Rules. On the contrary the scheme of these Rules clearly suggests that the pre-service training is not to be counted as in-service training. ( 23 ) ARGUMENT which was canvassed on behalf of the direct recruits and had found favour with the learned Single Judge that computing the period of training while considering the 8 years service required for eligibility for the post of Deputy Conservator of Forests under Rule 2 of the Recruitment Rules for that post amounted to a statutory recognition of the training period for all purposes cannot be accepted. Rule 2 of the Deputy Conservator of Forests (Gujarat Forest Service) Recruitment Rules 1987 reads as under:-"rule 2 :- Appointment to the post of Deputy Conservator of Forests Gujarat Forest Service Class-I shall be made by promotion of a person of proved merit and efficiency from amongst the persons holding the post of Assistant Conservator of Forests Gujarat Forest Service Class-II and who have put in atleast eight years service (including training period in the Forest College ) on the post of Assistant 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 for 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. " ( 24 ) THE above rule indicates that the period of eight years is prescribed as the criterion of experience for eligibility to the post of Deputy Conservator of Forests. The period of two years of training which otherwise would have been excluded is being taken into account as experience for computing the requirement of eight years. This specific provision is made only in context of promotion to the post of Deputy Conservator of Forests while laying down the eligibility criterion and cannot have the effect of projecting itself in the Recruitment Rules for Assistant Conservator of Forests and nullifying the provisions of Rules 6 7 and 8 which give berth to a direct recruit in the cadre of Assistant Forest Officers only on appointment made after completion of successful training. It is not possible to accept the contention that the provision made for such specific purpose should be read elsewhere in a context in which it does not fit in. Since in Special Civil Application No. 1109 of 1988 there is a challenge made against the provisions of the Deputy Conservator of Forests Recruitment Rules 1987 we record that the challenge was not pursued at the time of argument. We however find that the provisions made in Rule 2 of the sub-rules cannot be said to be unreasonable. ( 25 ) UNDER Rule 6 of the Assistant Conservator of Forests Recruitment Rules there was a provision of paying stipend. We however find that the provisions made in Rule 2 of the sub-rules cannot be said to be unreasonable. ( 25 ) UNDER Rule 6 of the Assistant Conservator of Forests Recruitment Rules there was a provision of paying stipend. It appears that representations were made against the inadequacy of the stipendary amount. The Government therefore passed a resolution dated 31. 3. 1982 providing that the directly recruited Assistant Conservator of Forest trainees should draw the minimum of the time scale of the pay of that post i. e Rs. 700 1300 alongwith admissible allowances thereof without normal increment with immediate effect. The learned Counsel appearing for the direct recruits heavily relied upon this resolution for contending that the trainees should be treated as regular employees. It is clear that the purpose of the resolution is only to raise stipend to minimum of the scale of the pay. In this resolution itself it is stated that after successful completion of their training and probationary period their pay would be fixed as per rules in force. There is nothing in this resolution which can go to show that the pre-service training period of the direct recuits was to be treated as in-service training. We are therefore not able to accept this contention of the direct recruits which had found favour with the learned Single Judge. We also do not see in the provisions of Rule 9 (16) (e) of the Bombay Civil Service Rules anything which can in any manner assist the case of the direct recruits. The said Rule provides that duty includes except if the case of a student selected on or after 15 July 1940 the period from the date on which a student passes satisfactorily through the course of training in a Forest School or College prescribed for direct appointment as Ranger or Probationary Assistant Conservator of Forests until the date on which he joins his appointment provided that the interval between the date following that on which the student is relieved from the school or college and the date on which he assumes charge of duties does not exceed the joining time that would be permissible to a Government servant entitled to joining time under Rule 79 (a ). Even note No. 2 in item 15 in Chapter IV of the Gujarat Forest Manual Volume I which was sought to be relied upon on behalf of the direct recruits does not in any manner further their case. The said note reads as under:-"note: 2 the period spent under training in the diploma course at the Indian Forest College Dehradun by candidates selected from members of the upper subordinate forest service is to be treated as duty for the perpose of pension only. " ( 26 ) THE Rule pertains to upper subordinate Forest Service and does not indicate at all that in case of the direct recruits to the cadre of Assistant Forest Officers who are in Class-II Gazetted Service the period spent in service to be treated as in-service. ( 27 ) RULE 5 of the Assistant Conservator of Forests Recruitment Rules provides that appointment by promotion and direct selection shall be made in the ratio of 2:1 of the vacancies available. Though the rule prescribes quota of 2:1 for promotees and direct recruits there is no specific provision made prescribing rota. As observed in Ashok Gulatis case (supra) in absence of any other valid principle of seniority the inter-se seniority between direct recruits and promotees should as far as possible be determined by the length of continuous service whether temporary or permanent in a particular grade or post. Reliance was sought to be placed on behalf of the direct recruits on the decision of the Supreme Court in Marvyn Continho vs. Collector of Customs Bombay AIR 1967 SC 52 and Bishan Sarup vs. Union of India AIR 1974 SC 1618 to contend that seniority of the direct recruits should have been fixed strictly according to rota of two promotees and one direct recruit. In Marvyn Continho (supra) one of the principles of a circular of 1959 was with respect to relative seniority of direct recruits and promotees. It provided that relative seniority of direct recruits and promotees shall be determined according to the rotational vacancies between direct recruits and promotees which shall be based on the quota of reservation for direct recruitment and promotion respectively in the Recruitment Rules. It provided that relative seniority of direct recruits and promotees shall be determined according to the rotational vacancies between direct recruits and promotees which shall be based on the quota of reservation for direct recruitment and promotion respectively in the Recruitment Rules. It was further explained in the circular that a roster should be maintained in the reservation for direct recruitment and promotion in the Recruitment Rules where for example the reservation for each method is 50 per cent the roster will run as follows:1 Promotion 2 Direct Recruitment 3 Promotion 4 Direct Recruitment and so on. . . . ( 28 ) IN Bishan Sarup (supra) the Supreme Court examined the validity of Rule 3 of the I. T. O (Class-I) Service (Regulation of Seniority) Rules 1973 in which it was specifically provided by sub-rule (3) that relative seniority among promotees and the direct recruits shall be in the ratio of 1:1 and the same shall be determined and regulated in accordance with a roster maintained for the purpose which shall follow the sequence namely (a) promotee (b) direct recruits (c) promotee (d) direct recruits and so on. It is held that this rule was just and fair. It will thus be seen that there were specific provisions in these two cases to the effect that seniority as between direct recruits and promotees should be determined in accordance with the roster which was specified. It is in this context that the Supreme Court had held that the rotational system in force by which seniority is fixed as provided by alternatively fixing a promotee and a direct recruit in seniority list was not violative of the principles of equity of opportunity enshrined in Article 16 of the Constitution. There is no such provision made for fixing the seniority of the direct recruits and promotees in the cadre of Assistant Conservator of Forests in Gujarat Forest Service on the basis of any rotational system. Therefore these decisions cannot help these direct recruits. ( 29 ) IN the Hand Book for Personnel Officers published by the General Administration Department to which the learned Counsel referred as regards direct recruits appointed on probation it is provided that their seniority should be determined ordinarily with reference to their date of appointment on probation while in the case of promotees seniority would be determined with reference to the date of promotion to long term vacancies. Even in the Government of Bombay Political and Services Department Resolution dated 21. 11 prescribing the principles to be observed in determining the seniority of direct recruits and promoted officers in the provincial services there was a provision that in the case of direct recruitees appointed substantively on probation the seniority should be determined with reference to the date of their appointment on probation. As observed by the Supreme Court in N. K. Chauhan (supra) seniority normally is measured by length of continuous officiating service. It was also held that it could not be held that quota was so inter-locked with rota that where the former is expressly prescribed the latter is impliedly inscribed. It was held that quota rule does not inevitably invoke the application of rota rule. ( 30 ) THE question which is therefore required to be considered is as to what is the impact of the quota rule in absence of any rota rule. It was sought to be contended on behalf of the promotees that their seniority should be counted from the date of actual officiation even if their promotion was in excess of the quota. It was also contended that in absence of availability of direct recruits the quota-rule had broken down and therefore these promotees were not liable to be pushed down. ( 31 ) IT is well settled that the excess promotees are to be pushed down to be fixed in their quota and they cannot claim seniority from the date of their actual promotion which being in excess of quota as necessarily fortuitous. In Avadh Prasad Singh vs. State of Bihar AIR 1990 SC 1257 the Supreme Court held that when promotion has been made in excess of the quota the promotees who have been promoted in the quota of direct recruits will be pushed down and will be absorbed in the quota of promotees of subsequent years and the direct recruits within their quota would be deemed to be senior to those promotees in excess of their quota. It was already held in N. K. Chauhan (supra) that promotees who have been fitted into vacancies beyond their quota would be invalid employees who would acquire new life when vacancies in their quota fall to be filled-up. To that extent they will step down rather be pushed down as against direct recruits who were later but regularly appointed within their quota. To that extent they will step down rather be pushed down as against direct recruits who were later but regularly appointed within their quota. In Keshavchandra Joshi vs. Union of India AIR 1991 SC 284 it was held that when promotion is outside the quota the seniority would be reckoned from the date of vacancy within the quota rendering previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of earlier promotion. It is clear that promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupied any vacancies which were within the quota of direct recruits when direct recruitment takes place the direct recruits will occupy the vacancies within their quota. Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case. Thus so long as quota rule remains neither promotees can be alloted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies. In view of this settled legal position the contention on behalf of the promotees that their seniority should be reckoned from the initial appointment which was in excess of the quota for promotees cannot be sustained. ( 32 ) AS noted above the promotee in excess of quota is to be pushed down below the direct recruit appointed within the quota of direct recruits. This however does not mean that a direct recruit appointed within the quota for his source is to be given a date anterior to his actual appointment. There is no pushing up contemplated in this sense. Just as a promotee could not have claimed an anterior date against the quota of promotees available at the time when he was not ripe for promotion a direct recruit also cannot claim a date anterior to his appointment when the quota seat for direct recruit was available. The only effect of enforcing the quota rule is to push down the incumbent who is in the excess of quota to a date when he comes within the quota. The only effect of enforcing the quota rule is to push down the incumbent who is in the excess of quota to a date when he comes within the quota. lee appointment of promotees in excess of their quota was fortuitous in the present case and their continuous length of service for the purpose of seniority would count only from the date when they were absorbed in their quota. The date of appointment of the direct recruits appointed within their quota will however remain the same. ( 33 ) KEEPING these principles in mind when we examine the final seniority list as on 1. 1. 1987 which was published under the circular dated 27th October 1988 we find that the directly recruited Assistant Conservator of Forests have been given place in the seniority list as per the guidelines issued by the Government in their resolution dated 4. 12 which was prepared on the basis of the decision in N. K. Chauhan (supra ). The promotees who were appointed in excess of their quota in the respective year have been pushed down to subsequent year in which they get their berth according to their quota in the relevant year. The resolution dated 4. 12. 1986 pertains to fixation of seniority between direct recruits and promotees and application of the pushed down theory-is demonstrated. It is recited in the said resolution that in the case of N. K Chauhan (supra) briefly stated the Supreme Court had ruled that whether recruitment is made by a promotion and direct recruitment in a prescribed ratio the seniority of officers in the cadre must follow the quota. It is further stated that for the proper implementation of the rating of the Supreme Court it was decided that the short-fall in the particular recruitment quota should be carried forward in the subsequent year as labelled vacancies earmarked for direct recruits or promotees only as the case may be. The vacancies arising in the relevant subsequent year should be allocated between direct recruits and promotees in accordance with the prescribed ratio and the carried forward labelled vacancies of the preceding year should be added to the vacancies allocable to the direct recruitment quota or the promotion quota as the case may be. The vacancies arising in the relevant subsequent year should be allocated between direct recruits and promotees in accordance with the prescribed ratio and the carried forward labelled vacancies of the preceding year should be added to the vacancies allocable to the direct recruitment quota or the promotion quota as the case may be. On the other hand if the appointment made in a year are in excess of the number of vacancies allocable to direct/promotion quota the direct recruits or promotees as the case may be should be pushed-down to the next year (s) and adjusted against the vacancies allocable to the respective direct or promotion quota. It was clarified that seniority inter-se of the Officers was necessarily to be governed by the chronological dates of appointment. In case of pushed down Officers the date of appointment would be the readjusted date of appointment. It appears from the final seniority list published on 27th October 1988 of the Assistant Conservator of Forests as on 1. 1 that it has been prepared keeping in view the principles laid down by the Supreme Court in N. K Chauhans case (supra) duly adopted in the resolution date 4. 12. 1986. We therefore negative the challenge against the said final seniority list of 1988. ( 34 ) IT was sought to be contended that since direct recruits were not available in sufficient number from 1974-75 till 1980-81 it should be assumed that the quota rule had broken down. On perusal of statement showing vacancies and their distribution according to ratio as applicable from time to time it appears that there was deviation from the quota due to non-availability of direct recruits for some years but it transpires that in the year 1981-82 and onwards there were appointments of direct recruits in greater number so as to reduce the disparity and by 1985-86 there was an excess of direct recruits. Therefore considering the mode of appointment over a period of say ten years it appears that the quota rule had not broken down. the promotees therefore cannot claim that they should not be pushed down on the basis that the quota rule had broken down. Reliance was placed on the decision of the Supreme Court in Direct Recruitment Class-II Engg. Therefore considering the mode of appointment over a period of say ten years it appears that the quota rule had not broken down. the promotees therefore cannot claim that they should not be pushed down on the basis that the quota rule had broken down. Reliance was placed on the decision of the Supreme Court in Direct Recruitment Class-II Engg. Officers Association vs. State of Maharashtra AIR 1990 SC 1607 in which it was inter-alia held that if it becomes impossible to adhere to the existing quota it should be substituted by an appropriate rule to meet the needs of the situation. In case however the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. Where quota rule is broken down and the appointments are made in excess of the quota but after following the prescribed procedure the appointees should not be pushed down below the appointees from the other source inducted in service at a later date. Since we are of the opinion that on the facts of this case quota rule had not broken down the said decision in the Direct Recruitment Class-II Engg. Officers Associations case (supra) cannot help the promotees. ( 35 ) IN view of our above discussion we declare that the final seniority list of 1988 was validly prepared. In view of our finding that the period of two years training cannot be computed towards seniority of the direct recruits we declare that the impugned resolution dated 31. 1. 1992 is ultra-vires the rules of Recruitment for the past of Assistant Conservator of Forests illegal and void. We also declare that the impugned seniority list of officery of Gujarat Forest Service Class II as on 1. 1. 1992 published under resolution dated 29. 1 We therefore set aside the impugned resolution dated 31. 1. 1992 and the impugned provisional seniority list published under resolution dated 29. 1. 1993. We hold and declare that the final seniority list published on 27. 1 was legal and valid. We also hold that the push-down theory has been correctly adopted while preparing the final seniority list of 1988 on the basis of the Government resolution dated 4. 12. 1986 and the decision of the Supreme Court in N. K. Chuhans case (supra ). 1 was legal and valid. We also hold that the push-down theory has been correctly adopted while preparing the final seniority list of 1988 on the basis of the Government resolution dated 4. 12. 1986 and the decision of the Supreme Court in N. K. Chuhans case (supra ). The Government will therefore be at liberty to operate the select list which was prepared on the basis of the final seniority list published on 27th October 1988 if it has otherwise remained valid and operative. We therefore set aside the decision of the learned Single Judge impugned in letters Patent Appeal No. 195 and Letters Patent Appeal No. 196/93 and make the rule absolute in Special Civil Application No. 866 of 1991 to the above extent with no order as to costs. ( 36 ) SPECIAL Civil Application No. 1447/91 is ordered to be dismissed and rule is discharged with no order as to costs. ( 37 ) SPECIAL Civil Application No. 877188 is dismissed and rule is discharged with no order as to costs. ( 38 ) SPECIAL Civil application No. 4400 of 1993 is allowed to the above extent and Rule is made absolute accordingly with no order as to costs. ( 39 ) SPECIAL Civil Application No. 1109/88 is dismissed and rule is discharged with no order as to costs. ( 40 ) SPECIAL Civil Application No. 1696/91 is dismissed and rule is discharged with no order as to costs. . ( 41 ) SPECIAL Civil Application No. 1403/93 is partly allowed and rule is made absolute to the above extent with no order as to costs. ( 42 ) SPECIAL Civil Application No. 2124/86 is dismissed and rule is discharged with no order as to costs. .