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2021 DIGILAW 2027 (RAJ)

Jaidev Bishnoi v. State of Rajasthan

2021-10-26

PUSHPENDRA SINGH BHATI

body2021
JUDGMENT 1. In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned. 2. The matter came up on the second stay petition; however, after detailed arguments and with the consent of learned counsel for the parties, the matter was being heard finally. 3. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs: "It is, therefore, most humbly prayed that this writ petition may kindly be allowed with cost and by and appropriate writ, order or directions (i) the impugned order dated 29.04.2020 (Annex.8), order dated 30.07.2020 (Annex.9) and letter dated 31.07.2020 (Annex.10) may kindly be quashed and set aside. (ii) the respondent No.1 may kindly be restrained from transferring any sanction post of Assistant Forester at divisional level, from one division to another division, for the purpose of promotion in another division on these transferred posts from the post of Forest Guard to Assistant Forester and (iii) the respondents may kindly be further directed to prepare the seniority list of Forest Guard at division level and further given promotion on the post of Assistant Forester according to the seniority list of division level. Any other appropriate writ, order or direction, which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners." 4. Learned counsel for the petitioners submitted that the petitioners are direct recruits on the post of Forest Guard and were appointed on 02.12.2016, as per the provisions of Rajasthan Forest Subordinate Service Rules, 2015 (hereinafter referred to as 'Rules of 2015'). Learned counsel further submitted that the selection on the post of Forest Guard has been made 100% by way of direct recruitment. Learned counsel also submitted that the next promotional post from Forest Guard is Assistant Forester, and the said post is to be filled 100% by way of promotion from amongst the Forest Guard. Learned counsel further submitted that the appointing authority of the petitioners is the Deputy Conservator of Forests, and their seniority is required to be determined and promotions are required to be made at the division level. Learned counsel further submitted that the appointing authority of the petitioners is the Deputy Conservator of Forests, and their seniority is required to be determined and promotions are required to be made at the division level. Learned counsel also submitted that the post of Assistant Forester also required to be determined at the division level and each division is having a separate number of posts of Assistant Forester. Learned counsel further submitted that vide order dated 12.02.2020, the respondents an order regarding distribution of the posts, according to the position as on 01.02.2020. Learned counsel also submitted that the promotion from the post of Forest Guard to Assistant Forester on division basis and seniority of Forest Guard also maintained at division level. Learned counsel further submitted that the respondent No.1, vide order dated 29.04.2020, transferred some posts of Assistant Forester from one division to another division on the ground that in some of the forest division, Forest Guards, who have been appointed in the year 1992, have not been promoted on the post of Assistant Forester; but in some forest divisions, where the Forest Guard appointed in the year 2011, were promoted on the post of Assistant Forester. Learned counsel also submitted that till date, as per the provisions of the Rules of 2015, the seniority list of Forest Guard and Assistant Forester is being maintained at division level and promotion has also been made on the basis of seniority at the division level, but vide letter dated 31.07.2020, the respondent No.2 issued a direction for constituting a committee for the purpose of maintaining the seniority on centralized basis instead of decentralized one. Learned counsel further submitted that the criteria, eligibility and procedure for promotion and seniority is prescribed under Rules 37 & 42 of the Rules of 2015. The relevant portion of the said Rules, as referred by the learned counsel, read as under: "37. Learned counsel further submitted that the criteria, eligibility and procedure for promotion and seniority is prescribed under Rules 37 & 42 of the Rules of 2015. The relevant portion of the said Rules, as referred by the learned counsel, read as under: "37. Criteria, eligibility and procedure for Promotion.- (1) As soon as the Appointing Authority determines the number of vacancies under rule regarding determination of vacancies of these rules and decides that a certain number of posts are required to be filled in by promotion, it shall, subject to the provisions of sub-rule (6), prepare a correct and complete list of the senior most persons who are eligible and qualified under these rules for promotion on the basis of seniority cum merit or on the basis of merit to the class of posts concerned. (2) The persons enumerated in the relevant column of the Schedule regarding post from which promotion is to be made, shall be eligible for promotion to posts specified against them in column 2 thereof to the extent indicated in the relevant column of Schedule, subject to their possessing minimum qualifications and experience, on the first day of the month of April of the year of selection, as specified in the relevant column regarding minimum qualification and experience for promotion, as the case may be. (3) No person shall be considered for first promotion in the service unless he is regularly selected on the post from which promotion is to be made in accordance with one of the methods of recruitment prescribed under the provisions of these rules. Explanation.- In case direct recruitment to a post has been made earlier than regular selection by promotion in a particular year such of the persons who are or were eligible for appointment to that post by both the methods of recruitment and have been appointed by direct recruitment first, shall also be considered for promotion. (4) . . . . . (5) . . . . 42. Seniority.- Seniority of persons appointed to the post encadred in the service or lowest categories of posts in each group/section of the service, as the case may be, shall be determined from the date of appointment on the post after regular selection in accordance with the provisions of these rules. . . . . (5) . . . . 42. Seniority.- Seniority of persons appointed to the post encadred in the service or lowest categories of posts in each group/section of the service, as the case may be, shall be determined from the date of appointment on the post after regular selection in accordance with the provisions of these rules. Appointment on adhoc or urgent temporary basis shall not be deemed to be appointment after regular selection: Provided that - (i) the inter se seniority of person appointed to a post in a particular category by direct recruitment on the basis of one and the same selection, except those who do not join service when a post is offered to them within period of six weeks from the date of issue of order unless the period is extended by the Appointing Authority, shall be determined by the order of merit in the list prepared-by the Commission under sub-rule (2) of Rule 29 or by committee under sub-rule (5) of Rule 30 and sub-rule (2) of Rule 31. (ii) if two or more persons are appointed to posts in the same category in the same year, a person appointed by promotion shall be senior to a person appointed by direct recruitment; (iii) seniority inter se of persons selected on the basis of seniority-cum-merit and on the basis of merit in the same selection shall be same as in the next below grade. (iv) reservation for Scheduled Castes and Scheduled Tribes employees, with consequential seniority, shall continue till the roster points are exhausted, and adequacy of promotion is achieved. Once the roster points are complete the theory of replacement shall thereafter be exercised in promotion whenever vacancies earmarked for Scheduled Castes/ Scheduled Tribes employees occur. If on the application of these provisions the Scheduled Cates/Scheduled Tribes employees who had been promoted earlier and are found in excess of the adequacy level, shall not be reverted and shall continue on ad-hoc basis, and also any employee who had been promoted in pursuance to notification No.F.7(l)DOP/A-II/96 dt. 1.4.1997 shall not be reverted. Explanation.- "Adequate representation" means 16% representation of the Scheduled Castes and 12% representation of the Scheduled Tribes in accordance with the roster point. 1.4.1997 shall not be reverted. Explanation.- "Adequate representation" means 16% representation of the Scheduled Castes and 12% representation of the Scheduled Tribes in accordance with the roster point. (v) that the persons selected and appointed as a result of a selection, which is not subject to review and revision, shall rank senior to the persons who are selected and appointed as a result of subsequent selection. (vi) the inter-se seniority of the person screened under sub-rule (3) of Rule 6 relating to method of recruitment shall be determined according to the length of continuous service after their irregular appointment. These persons shall rank junior to the persons appointed regularly before the commencement of the Rajasthan Various Service (Second Amendment), Rules, 2009 i.e. 8.7.2009." Learned counsel thus, submitted that the State's decision to conduct centralized promotion process is unlawful and contrary to the Rules. 5. Learned counsel for the respondents however, submitted that the petition is misplaced, as the rule position does not disclose the necessity of promotion being made at division level. Learned counsel further submitted that the post of Assistant Forester is to be filled 100% by way of promotion. The Schedule, as produced by the learned counsel for the respondents, is taken on record. 6. After hearing learned counsel for the parties as well as carefully examining the record of the case, this Court finds that none of the Rules, including the aforequoted Rules 37 & 42 of the Rules of 2015 or the aforementioned Schedule, indicate any mandatory requirement of conducting the promotion process for the post of Assistant Forester at the division level. 7. The only requirement for the promotion on the post of Assistant Forester is that the same shall be filled, 100% by way of promotion, from the post of Forest Guard. The eligibility criteria for such promotion is that the person shall be required to have seven years' experience on the post of Forest Guard and must possess a certificate of training from a recognized Forestry Training School. 8. The impugned decision of the State is neither arbitrary, nor contrary to the mandate of law, and thus, the same does not call for any interference. 9. Consequently, the present petition is dismissed. All pending applications stand disposed of.