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Madhya Pradesh High Court · body

2010 DIGILAW 22 (MP)

N. K. DUBEY v. STATE OF MP.

2010-01-07

ARUN MISHRA, S.C.SINHO

body2010
Judgment Arun Mishra,J. ( 1. ) The writ petition has been filed assailing the vires of the recruitment rules called M.P. Class III (Non Ministerial) Forest Service Recruitment Rules, 1967 (hereinafter referred to as the Rules of 1967) and M.P. Class III (Non Ministerial) Forest Service Recruitment Rules, 1999 (hereinafter referred to as the Rules of 1999) inasmuch the seniority of the Forester is being maintained at the forest circle level. ( 2. ) It is averred in the petition that petitioner was directly appointed on the post of Forester vide order dated 31.10.1975. He was later on confirmed on 1.3.1977. At the relevant time the rules of 1967 were applicable. As per these rules the Divisional Forest Officer was the appointing authority of the Forester and the appointments used to be made directly and by promotion as per schedule II of the Rules of 1967 (P-2)..Later on rules of 1999 were framed,which provides that appointing authority of the Forester is Conservator of Forest and 100% posts are filled by promotion. Seniority of the Forester is maintained circle wise; under rules of 1967 and also under rules of 1999. Next promotion of the Forester is on the post of Deputy Ranger and from Deputy Ranger to the post of Ranger. According to Rules of 1967, the appointing authority of Dy. Ranger was Conservator and as per rules of 1999 the appointing authority is the same. The seniority of the Dy. Ranger is being maintained at the State level. Petitioner was also promoted on the post of Dy. Ranger vide order (P-6) dated 17.6.2005, pursuant thereto posting order(P-7)dated 8.7.2005 was issued. Petitioner had received training at Forest School,Betul from 1.11.1974 to 30.10.1975 and 50 candidates were admitted in the said batch along with the petitioner. After receiving the training, these candidates were posted as Foresters in different circles of the State. Petitioner was placed at serial No. 6 in the said batch. Candidates of this batch have been promoted on the post of Dy. Ranger much earlier than the petitioner and they have also been promoted to the higher posts by virtue of their being posted in different circles. In some circles the promotions are being granted quite earlier and hi some circles the candidates have to wait for 25-30 years, which has resulted into promotions of several juniors to the petitioner by virtue of their being posted in different circles. In some circles the promotions are being granted quite earlier and hi some circles the candidates have to wait for 25-30 years, which has resulted into promotions of several juniors to the petitioner by virtue of their being posted in different circles. There is also improper distribution of the posts of Dy. Ranger in the circles, which was causing hardship to the Foresters in the matter of promotion. Prayer has been made to quash the provisions of the Rules of 1967 and 1999 so far as it regards to maintaining the seniority of Foresters at the forest circle level. It is prayed that seniority of the Foresters be directed to be maintained at the State level so that there is no discrimination in the matter of promotion. When the selection of Foresters is made on State level, there is no rhyme or reason to accord the seniority at the forest circle level. ( 3. ) In the return filed by the respondents, it is contended that in the year 1987 allocation of 1769 posts of Dy. Rangers was made to the Forest Conservators by the Director General of Forests, Bhopal vide his letter(R-l) dated 21.5.1987. As per the aforesaid communication,1043 posts of Foresters have been abolished and instead of that, an equal number of posts of Dy. Ranger were created. It is on account of this change in the strength of the cadre of the Dy. Ranger that the aforesaid allocation of posts was made to the different forest circles. It is further contended that in accordance with the aforesaid allotment of posts, Conservator of Forests,Seoni Circle,Seoni was allocated 44 posts of Dy. Rangers and 7 posts were lying vacant totaling 51 posts of Dy. Rangers available to be filled in the year 1987. In order to fill the aforesaid posts,DPC was held on 24.11.1987 and the petitioner along with others, who were within the zone of consideration, were considered for promotion and as per the recommendations of the committee, promotions were made to 44 posts. Order(R-3)was issued on 24.11.1987. Case of the petitioner was never recommended by the DPC,there were no posts left, thus for want of vacancy the petitioner was not recommended for promotion to the post of Dy. Rangers. Petitioners case was further considered for promotion to the post of Dy. Order(R-3)was issued on 24.11.1987. Case of the petitioner was never recommended by the DPC,there were no posts left, thus for want of vacancy the petitioner was not recommended for promotion to the post of Dy. Rangers. Petitioners case was further considered for promotion to the post of Dy. Ranger by the subsequent DPC but because Senior Foresters were available in the Seoni Forest Circle, the name of the petitioner was not considered. However, petitioner was promoted as Dy. Ranger vide order dated 21.7.2005. Petitioner cannot claim such relief for which he is not directly entitled. Direction passed by the Tribunal in O.A. No. 3551/96 has been stayed by this Court in Writ Petition,later on the order has been set aside. Petitioner has been promoted on the post of Dy. Ranger in seniority list of Seoni Circle Foresters and there was no junior Forester promoted, thus petitioner was not superseded in the Seoni Circle. ( 4. ) Shri D.K. Dixit,learned counsel appearing with Shri Anshul Dixit for petitioner has submitted that when examination for selection was held at the State level, there was no reason to maintain the seniority at the forest circle level. List was also prepared of the Foresters at the State level. Seniority of Dy. Ranger is maintained at State level though promotion to the post of Dy. Rangers is ordered out of Foresters working in the forest circle concerned. By virtue of being posted in the different circle, other batch mates of the petitioner had obtained the promotion much earlier than the petitioner and they have been promoted on the higher posts also. Even several juniors to the petitioner were also promoted much earlier than the petitioner in other circles, which has resulted into discrimination. Thus the rules providing for maintaining the seniority at the forest circle level be quashed. ( 5. ) Shri Deepak Awasthi,learned Government Advocate appearing for the State has supported the rules. He has submitted that seniority of the Foresters is rightly maintained at forest circle level. Promotion of the Dy. Ranger is made from the Foresters working in the forest circle. Petitioner cannot compare his case with the Foresters working in different divisions and allotted to different circles. Seniority can be maintained at a particular level. There is no arbitrariness in the rules, they cannot be said to be discriminatory. ( 6. Promotion of the Dy. Ranger is made from the Foresters working in the forest circle. Petitioner cannot compare his case with the Foresters working in different divisions and allotted to different circles. Seniority can be maintained at a particular level. There is no arbitrariness in the rules, they cannot be said to be discriminatory. ( 6. ) Rule 16 of the Rules of 1999 provides for condition for eligibility for promotion/transfer. Schedule IV has the reference to Rule 16. Schedule IV provides that Forest Guard has to be promoted as Forester on completion of 12 years of service and Forester can be promoted as Dy. Ranger on completion of 5 years service on due consideration of seniority subject to fitness by DPC to be constituted by Chief Conservator of Forest. Promotion to the post of Dy. Ranger is out of Foresters at circle level as apparent from Note 1 of Schedule 4. Similar was the position in Rules of 1967. ( 7. ) Question is by holding the examination for selection of Foresters at the State level and thereafter various Foresters as per their merits are allotted to the different forest circles in the State, whether their seniority has to be maintained at the State level or at the forest circle level. In other words whether provision of maintaining the seniority of the Foresters at the forest circle level, can be said to be arbitrary. In our considered opinion merely by holding the examination at the State level would not come in the way of the State in maintaining the seniority of Foresters at the forest circle level. Merely by the fact that petitioners other batch mates or some other juniors have been alloted to some other circles and obtained promotions earlier by virtue of availability of early vacancy, it could not be said to be a case of discrimination vis-a-vis to the petitioner. He has been put to a different circle altogether which is zone for consideration for promotion to next higher post. When large number of posts of Foresters were abolished, case of the petitioner was considered bat he could not be selected as apparent from the return. When he was found fit he has been promoted in his own forest circle to the post of Dy. Ranger. When large number of posts of Foresters were abolished, case of the petitioner was considered bat he could not be selected as apparent from the return. When he was found fit he has been promoted in his own forest circle to the post of Dy. Ranger. The submission raised by Shri D.K. Dixit that there is discrimination in the matter of promotion in different circles, cannot be accepted as each circle forms a class. Petitioner cannot complain of violation of Article 14 and 16 by comparing his case with a person of different class i.e. circle. Petitioner cannot claim the right to be treated at par with the employees of the other forest circle, rules cannot be said to be arbitrary or ultra vires in any manner. The feeder cadre for Dy. Ranger post is out of Foresters working in forest circle. Thus, maintaining seniority w.e.f.1967 at forest circle level is appropriate. Petitioner has been allocated to Seoni circle as per his merit in relation of Foresters. The position prevailing for 42 years cannot be upset nor it can be said to be illegal or arbitrary. ( 8. ) Counsel has relied upon the decision of Y.D. Shukla and others Vs. High Court of Judicature of M.P. At Jabalpur and another - 2009 (2) M.P. L.J. 22 in which question came up for consideration was with respect to grant of promotion to the Civil Judges (Senior Division) on the basis of merit cum seniority on the post of District Judges (Entry Level) till the attainment of the required percentage in Rule 5(1) of M.P. Uchchatar Nyayik Sewa(Bharti Tatha Sewa Shartein)Niyam, 1994. The question involved in the instant case is entirely different. Thus, the said decision is of no help to the petitioner. ( 9. ) The decision of Tribunal which has been referred to, has been set aside by this Court in W.P. No. 4717/2001 vide order dated 7.11.2003. This Court did not delve upon the merit of the submission with respect to vires in aforesaid order, which we have examined in the instant petition. ( 10. ) Resultantly,we find no merit in the petition, same is dismissed. Petition dismissed.