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Rajasthan High Court · body

2005 DIGILAW 3320 (RAJ)

Amar Singh Champawat v. State of Raj.

2005-12-16

RAJESH BALIA

body2005
Honble BALIA, J.–Heard learned counsel for the parties. (2). The case of the petitioner is that in the first instance, under Rajasthan Forest Service Rules, 1962 vide promotion order dated 21.6.1978, the petitioner was promoted and appointed as Assistant Conservator of Forest on purely temporary basis for a period of six months from the date of taking over charge or till regularly selected candidates in accordance with the method prescribed under the aforesaid Rules are available whichever is earlier. This appointment was under Rule 34 of the Rajasthan Forest Service Rules, 1962. Thereafter D.P.C. for promotion to the post of Assistant Conservator of Forest was convened for the vacancies of 1978 in July, 1983 in compliance of judgment of Rajasthan Civil Service Appellate Tribunal and on the recommendation of the DPC, the petitioner came to be appointed as Assistant Conservator of Forest against the vacancies of 1978. (3). The case regarding respondents No. 3, 4 and 5 and about which there is no dispute is that the respondent No. 3 was appointed in 1978 after completion of training as required under Rule 29 of the Rajasthan Forest Service Rules, 1962 as was then existing. Shri K.N. Mathur was also appointed in 1978 after completing training under Rule 29 and Shri G.P.D. Vyas was appointed in 1979. The seniority list of Assistant Conservator of Forest as on 1.3.1990 was published on 6.03.1990 in which the petitioners name was shown at serial No. 35 whereas Shri Safaat Hussain and Shri K.N. Mathur were shown at serial No. 18 and 19 respectively and Shri G.P.D. Vyas was shown at serial No. 32. (4). The petitioner challenges the seniority list on simple ground that under Rule 35 of the Rules of 1962 which provides for providing seniority shows that if two or more persons are appointed to the service in the same year, a person appointed by promotion shall be senior to a person appointed by direct recruitment; (5). There is no dispute about the fact that the petitioner was appointed by promotion against the vacancies of 1978 and the respondents No. 3 and 4 were appointed as Assistant Conservator of Forest in 1978 and respondent No. 5 in 1979 respectively after completion of training of Diploma course at Dehradun as required under Rule 29. (6). There is no dispute about the fact that the petitioner was appointed by promotion against the vacancies of 1978 and the respondents No. 3 and 4 were appointed as Assistant Conservator of Forest in 1978 and respondent No. 5 in 1979 respectively after completion of training of Diploma course at Dehradun as required under Rule 29. (6). Return has been filed by the respondents stating that there is no operation of quota rule amongst the direct recruitees and promotees to the State services as well as a preliminary objection as to the availability of alternative remedy by way of appeal before the Rajasthan Civil Service Tribunal was raised. (7). Since more than 14 years have passed after filing of the writ petition and its admission, I am not inclined to consider it appropriate to non-suit the petitioner on the aforesaid ground of alternative remedy, as it will perpetuate injustice if any caused to the petition if the other contentions are not examined on merits. (8). On merits of the case shorn of all technicalities, the contention of the respondents is that the respondents No. 3 and 4, Safaat Hussain and Shri K.N. Mathur, were appointed against the vacancies of 1976 after completion of their training at the Forest Institute Dehradun and likewise Shri G.P.D. Vyas was appointed in 1979 against the vacancies of 1977 after the training at Dehradun. Since the respondents No. 3, 4 and 5 were appointed against the vacancies of earlier years than the petitioner, their appointments may be treated as of 1976 and 1977 respectively, prior to the petitioner. Therefore, there is no error in operating the Rule 35 proviso (2) of the Rules of 1962 in respect of petitioner vis-a-vis answering respondents No. 3 to 5. (9). Having considered the Rules, contention raised in the petition as well as in the reply, the contention raised by the respondents in the return is not well founded. The Rule 29 which was in force in 1978 when the appointments were given to the respondents No. 3, 4 and 5 read as under:– ``29. (9). Having considered the Rules, contention raised in the petition as well as in the reply, the contention raised by the respondents in the return is not well founded. The Rule 29 which was in force in 1978 when the appointments were given to the respondents No. 3, 4 and 5 read as under:– ``29. Training :– (1) All candidates selected under rule 28 shall be required to undergo and complete successfully the Diploma Course in (or Forestry Wing only) and Diploma Course in Wild Life Preservation and such other course or training as the Government may prescribe (for Wild life Wing only) at the Indian Forest College, Dehradun or the corresponding course at any other Institution as may be determined by the government. Note:–(i) The Government shall make such contribution towards the training expenses as may be determined by + ``it from an accordance with such terms and conditions as may be laid down by + ``it (ii) During the Course of Training a candidate shall be subject to the rules and regulations of the Indian Forest College, Dehradun, or any other institution referred to above. (2) Notwithstanding anything contained in sub-rule (1), the Government in consultation with the Commission, on such terms including experience, age and procedure as may be laid down, may fill a vacancy of the Assistant Conservator of Forests for Forest wing and Wild Life Warden for Wild Life wing, in case a candidate fulfilling the conditions laid down in rule 11(2) and Rule 11(4)(ii) respectively is available and is otherwise found suitable for appointment to it. (10). Rule 28, which refers to the selection for appointment by direct recruitment at the time when the appointments were offered to the respondents No. 3 to 5, read as under :– 28. Selection by the Government.–Subject to the number of posts specified in the notice issued under rule 19 and subject to reservation of posts in favour of candidates belonging to Scheduled Castes/Tribes, the government shall select candidate who stand highest in the order of merit in the list prepared by the Commission under rule 25, provided that it is satisfied after such enquiry as may be considered necessary that such candidates (hereinafter called Cadets) are suitable in all other respects for appointment to the posts in the Service after they successfully undergone the prescribed course of training. (11). (11). Selection of respondents No. 3 and 4 having been made in 1976 or 1977 respectively the appointment could have been offered to only after they have successfully completed the training. Initial selection was only for the purpose of requiring the selected candidates to undergo and complete successfully the diploma course in forestry wing or diploma course in wild life wing as the case may be at the Indian Forest College Dehradun or corresponding course at any other institution as determined by the Government. (12). The scheme of direct recruitment revealed under Rule 28 and 29 makes it unmistakably clear that the training required was not a training to be undergone by any candidate after appointment was given to a candidate who was recommended by the R.P.S.C. by the Government in order of merit, but successfully completion of training was the condition precedent before appointment could at all be given. No appointment could follow until the candidate selected had undergone the training at Dehradun Institute successfully and obtained diploma. (13). The requirement of giving appointment after successfully undergoing the prescribed course of training was deleted only in 1985 vide notification dated 22.06.1985. However, since in present case all the appointments of petitioner as well as respondents No. 3 to 5 were made prior to amendment of 1985, their year of appointment can only be when appointment was given and cannot relate to any period earlier thereto when the respondents were undergoing training at Dehradun. Consequently, their inter se seniority shall also be governed as per the Rules existing at the time of giving appointment whether by direct recruitment or by promotion. (14). In this regard, the matter is no more res integra as far as this Court is concerned. The respondent No. 4, K.N. Mathur had filed a writ petition when vide amendment notification dated 22.6.1985 the last portion of the Rule 28 was deleted seeking a declaration that amendment was only declaratory in nature and it clarified the position as it was existing at the time the appointments were given. (15). The respondent No. 4, K.N. Mathur had filed a writ petition when vide amendment notification dated 22.6.1985 the last portion of the Rule 28 was deleted seeking a declaration that amendment was only declaratory in nature and it clarified the position as it was existing at the time the appointments were given. (15). This contention of the respondent No. 3 in his petition was negatived by the Division Bench by holding that the amendment was not declaratory and the appointment prior to amendment could take place under Rules only after the successful completion of training under Rule 29 and, therefore, there can be no anti dating the date of appointment to the post. After considering the amendment made in Rule 16 and Rule 11, the Court concluded that :– ``It is, therefore, clear that according to the Rajasthan Forest Service Rules, 1962 as they stood prior to the 1985 amendments appointment to the service was made only after the candidate selected for the Training in Diploma Course had obtained the Diploma and was found suitable in all respects. It is not as if training for Diploma Course was a part of the in service training programme after appointment to the service. The Court further said that :– ``In view of the clear provisions in the Rules as initially existed and as they became after 1985 amendments there is no scope for accepting the contention that these amendments are merely declaratory of the position existing prior to the amendment. The scheme of the Rules prior to the amendments was that a direct recruit was appointed to the Service only after he had acquired the prescribed academic qualification specified in rule 11 (2) and rule 11(4)(ii) so that the service could not commence on a date prior to his acquiring the prescribed academic qualification. The remaining rules, particularly rules 28, 29, 32 and 35, made similar provisions relating to appointment to the Service and fixation of inter se seniority of the direct recruits. At the time the candidates on initial selection were called Cadets as defined in rule 3(1)(a) and after obtaining the prescribed academic qualification for appointment to the service they were given appointment to the service and it was at that stage that their service commencement. At the time the candidates on initial selection were called Cadets as defined in rule 3(1)(a) and after obtaining the prescribed academic qualification for appointment to the service they were given appointment to the service and it was at that stage that their service commencement. Obviously any period spent by them as cadets in the training prior to the appointment to the service cannot be included as a part of their service. (16). However, the Court clarified that after the amendment the qualification of diploma in Forest has also been deleted from the prescribed essential academic qualification in Rule 11(2) and 11(4)(ii), there is no bar now to making the appointment prior to obtaining these academic qualification at the end of training. This being so under the amended Rules, the service of direct recruitee commences at the time of sending them for training and not on posting after completion of training. The plea of discrimination and violation of Article 14 was rejected by the Court by holding that there is no discrimination for the reasons suggested by learned counsel. Persons recruited to the service after the amendment came into force obviously to be governed by the Rules under which they were appointed and the appointees prior to the amendments are to be governed by the un-amended Rules. (17). Thus, according to the aforesaid Bench decision, the service of direct recruitees appointed under the Rules of 1962 prior to 22.6.1985 commences only after he completes training as required under Rule 29 and is given appointment thereafter. (18). It being admitted position that the appointments were given to the respondents No. 3, 4 and 5 after completing training in 1978 and 1979 as noticed above, there is no room for accepting that their appointments were prior to 1978 and 1979 or were related to 1976 and 1977 as has been suggested by the respondents in their reply and vide Annex.R/2 submitted along with the return in which the year of regular selection by R.P.S.C. and D.P.C. has been stated in column 3 to explain how the Safaat Hussain, K.N. Mathur and G.D.P. Vyas who are direct recruitees have been assigned seniority over the petitioner. Second proviso to rule 35 is clear in its term which read as under:– (2) If two or more persons are appointed to the Service in the same year, a person appointed by promotion shall be senior to a person appointed by direct recruitment. (19). Once this conclusion is reached that the appointments of respondents No. 3 to 5 cannot be treated of 1976 and 1977 in terms of Rules governing their appointments prior to 1985, when such appointments were offered to them, it must follow that the appointments of Shri K.N. Mathur, Safaat Hussain were of 1978 that is to say in the same year in which the petitioner was appointed by promotion and, therefore, in terms of second proviso to Rule 35 the petitioner-appellant ought to rank senior to the respondents No. 3 and 4. Likewise respondent No. 5 had been given appointment after completion of training only in the year 1979, one year after the petitioner was appointed. In that view of the matter, the respondent No. 5 is also junior in rank to the petitioner. That being clear position emerging from the facts and rule as interpreted by a Bench of this Court, the petition must succeed and the directions as claimed by the petitioner are required to be issued. (20). Accordingly, the writ petition is allowed. The respondents are directed to assign seniority to the petitioner above those direct recruitees respondents No. 3 to 5 namely Safaat Hussain, K.N. Mathur and G.D.P. Vyas who have been appointed in 1978 and 1979 by treating their services only with effect from the date they were given appointment under extent Rule 28 after completion of their training under Rule 29 and the time spent at the training center cannot be counted as a part of service for the purpose of assigning seniority. (21). Consequently, Shri Amar Singh Champawat must be placed above Shri K.N. Mathur and Safaat Hussain, appropriately and fresh seniority list be published. The respondent No. 5 be also assigned seniority as an appointee of 1979 only. The petitioner shall be entitled to the consequential reliefs as may flow to him as a result of aforesaid alteration in seniority. (22). No costs.