PETITIONER:
C.K. ANTONY, P.T. JOSEPH, V.S. THOMAS & ANR.
Vs.
RESPONDENT:
B. MURALEEDHARAN & ORS., C. BALACHANDRAN NAIR & ORS.
DATE OF JUDGMENT: 01/09/1998
BENCH:
S. SAGHIR AHMAD, K. VENKATASWAMI, S. RAJENDRA BABU
ACT
HEADNOTE
JUDGMENT
WITH
CIVIL APPEAL NOS. 11526-11529 OF 1995
WITH
CIVIL APPEAL NO. 11531 OF 1995
JUDGMENT Venkataswami, J.
In all these appeals, the vexed and unending question of seniority between the direct recruits and promotees arises for our consideration.
In these appeals, the question relates to a dispute that has arisen in the cadre of Assistant Conservator of forests, whose services are governed under the Kerala Forest Service.
It is common ground that recruitment to the cadre of Assistant Conservator of Forests (hereinafter called the "A.C.F.") is directly as well as by transfer. The proportion between the direct recruits and recruitment by transfer is also fixed as 3:2 in the Kerala Forest Service Special Rules. The seniority of a directly recruited A.C.F. has to be determined by the date of his appointment as probationary Assistant Conservator. It is the claim of the promotees - appellants that they were appointed by promotion as Assistant Conservator of forests long before 1.5.78., on which date the first respondent in civil Appal No. 11527/95 was appointed as a probationary Assistant Conservator. The Other two directly recruited Assistant Conservators were appointed as probationary Conservators subsequent to 1.5.78. Therefore, the dispute centres round the claim of the appellants whether they were appointed before 1.5.78 and whether such claim is sustainable under the relevant Kerala Forest Service Special Rules and also the Kerala State and subordinate Service Rules. We may at once point out that the first respondent in Civil Appeal No. 11527/95 was appointed in the cadre in accordance with the above-mentioned rules on 1.5.78, is not in dispute. Likewise, the fact that seniority of that respondent has to be reckoned on and from 1.5.78, is also not controverted. However, it is the case of the directly recruited Assistant Conservators in these appeals that the appointments of the appellants, if any, prior to 1.5.78 were all under rule 9(a)(i) of the General Rules and the same cannot be taken into account for the purpose of inter se seniority. According to them, the inter se seniority can be reckoned from the date of regular appointment as Assistant Conservators in accordance with the Rules, in particular, Rule 2 read with Rule 8 of the Special Rules.
Before considering the appeals further, it is necessary to set out the relevant Service Rules.
Kerala Forest Service Special Rules
Rule 2. Appointment - (a) Appointment to the several categories of the service shall be made as follows:- Category Method of recruitment (1) (2) 1. Chief Conservator By prompts on from
Conservators 2. Conservators By promotion from Dy.
Conservators 3. Depute Conservator By promotion from
Assistant
Conservators 4. Asstt. Conservators By direct
recruitment or
recruitment by
transfer from
among Rangers in
Kerala Forest
Subordinate
Service.
Explanation: - Direct recruitment
and recruitment by transfer from
among rangers shall be in the
proportion 3:2 to the category of
Assistant Conservators and the
ratio shall be applicable only to
the extent to which qualified and
suitable candidates are available
in each o the two categories. In
the absence of the required number
of direct recruits to be appointed
against the vacancies apportioned
to them, such vacancies shall also
be filled up by recruitment by
transfer and vice versa.
Provided that substantive vacancies
alone in the category of Assistant
Conservators shall be filled up in
accordance with the seniority of
approved probationers.
Rule 8. Seniority - the seniority
of a directly recruited Assistant
conservator shall be determined by
the date of his appointment as
probationary Assistant Conservator.
where such date is the same in the
case of two or more members, the
seniority inter se shall be
determined by their rank in the
pass list issued by the Forest
College, Dehra Dun.
Kerala Service Rules
Rule 18 (a) - The Government shall
suspend the lien of an officer on a
permanent post which he holds
substantively if he is appointed in
a substantive capacity -
(1) To a permanent post outside the
cadre on which he is borne, or
(2) Provisionally to a post on
which another officer would hold a
lien had his lien not been
suspended under this Rule.
Kerala State and Subordinate
Service Rules, 1958
Rule 21 (a) " A person is said to
be "appointed to a service" when
the accordance with these Rules or
in accordance with the Rules
applicable at the time, as the case
may be, he discharges for the first
time the duties of a post borne on
the Cadre of such service or
commences the probation,
instruction or training prescribed
for members thereof.
Explanation: The Appointment of a
person holding a post borne on the
cadre of the one service to hold
additional charge of a post borne
on the cadre of another service or
to discharge the current duties
thereof does not amount to
appointment to the latter service.
Rule 2 (9) "Member of a service"
means a person who has been
appointed to that service and who
had not retired or resigned, been
removed or dismissed, been
substantively transferred or
reduced to another service, or been
discharge otherwise than of want of
a vacancy he may be a probationer,
an approved probationer or a full
member of that service.
Rule 2 (13) A candidate is said to
be "recruited by transfer" to a
service -
(i) If his appointment to the
service is in accordance with the
orders issued or rules prescribed
for recruitment by transfer to the
service; and
(ii) If at the time of his first
appointment thereto (a) he is
either a full member or an approved
probationer in any other service,
the rules for which prescribe a
period of probation for members
thereof.
Rule 2 (15) " Service" means a
group of persons classified by the
state Government as a State or
Subordinate Service, as the case
may.
Note: - When the context so
requires "service" means the period
during which a person holds a post
or a lien on a post or is a member
of a service as above defined.
Rule 2 (18) ’Cadre’ - The permanent
cadre of each service, class
category and grade shall be
determined by the State Government.
Rule 5. "Method of recruitment -
Where the normal method of
recruitment to any service, class
or category is neither solely by
direct recruitment nor solely by
transfer but is both by direct
recruitment and by transfer -
(a) The proportion or order in
which the special rules concerned
may require vacancies to be filled
by persons recruited direct and by
those recruited by transfer shall
be applicable only to substantive
vacancies in the permanent cadre;
(b) A person shall be recruited
direct only against a substantive
vacancy in such permanent cadre,
and only if the vacancy is one
which should be filled by a direct
recruit under the special Rules
refereed to in Clause (a) and
(c) Recruitment to all other
vacancies shall be made by
Transfer".
(Note: - (1) All permanent
vacancies and temporary vacancies
except those of short duration
shall be treated as substantive
vacancies.
(2) Leave vacancies and vacancies
of less then 6 months duration
shall be treated as vacancies of
short duration)
(Amended with effect from 17.12-
1958 vide G.O. (P) S/PD dated 17-1-
1967).
Rule 9. " Temporary appointments -
(a) (i) where it is necessary in
the public interest, owing to an
emergency which has arisen to fill
immediately a vacancy in a post
borne on the cadre of a service,
class or category and there would
be undue delay in making such
appointment in accordance with
these rules and the Special rules,
the appointing authority may
appoint a person otherwise than in
accordance with the said Rules,
temporarily.
(a)
(ii)...............................
...........
(a) (iii) A person appointed under
Clause (1) shall be replaced as
soon as possible by a member of the
service or an approved candidate
qualified to hold the post under
the said rules.
(a) (iv) A person appointed under
Clause (i) or (ii) shall not be
regarded as a probationer in such
service class or category or be
entitled by reason only of such
appointment to any preferential
claim to future Appointment to such
service, class or category.
Rule 18 (a) "Date of commencement
of probation of persons first
appointed temporarily - "If a
person having been appointed
temporarily under Sub-Rule (a) or
Sub-Rule (c) of Rule 9 to a post
borne on the cadre of any service,
class or category otherwise than in
accordance with the Rules governing
appointments thereto, is
subsequently appointed to the
service, class or category in
accordance with the Rules, he shall
commence his probation from the
date of such subsequent Appointment
or from such earlier date as the
appointing authority may determine,
without prejudice to seniority of
others.
Rule 20. Probationer’s suitability
for full membership - (a) "At the
end of the prescribed or extended
period of probation as the case may
be, the appointing authority shall
consider he probationer’s
suitability for full membership of
the service, class or category for
which he was selected.
(b) If the appointing authority
decides that a probationer is
suitable for such membership, it
shall as soon as possible issue an
order declaring the probationer to
have satisfactorily completed his
probation. On the issue of such
order, the probation shall be
deemed to have satisfactorily
completed his probation, on the
date of the expiry of the
prescribed or extended period of
probation ".
Rule 24. Appointment of full
members-
(a) "Subject to the provisions of
Rule 8 an approved probationer
shall be appointed to be a full
member in the class or category for
which he was selected, at the
earliest possible opportunity, in
any substantive vacancy which may
exist or arise in the permanent
cadre of such class or category and
if such vacancy existed from a date
previous t the issue of the order
of appointment, he may be so
appointed with retrospective effect
from the date or, as the case may
be, from any subsequent date from
which he was continuously on duty
as a member of the service in such
class or category or in the higher
class or category. Provided that
which more than one approved
probationer is available for such
Appointment as full member, the
senior most approved probationer on
the date of vacancy shall be
appointed.
(b) where appointment to any
service, class or category is
according to rules normally both by
direct recruitment and by transfer,
vacancies against which persons
have been recruited direct shall be
regarded as a distinct group while
all other vacancies shall be
regarded as another distinct group,
and appointment of full members in
accordance with Sub Rule (a) shall
be made separately in such of these
groups".
"Rule 27. Seniority -
(a) Seniority of a person in a
service, class category or grade
shall, unless he has been reduced
to a lower rank as punishment, be
determined by the date of the order
of his first appointment to such
service, class, category or grade".
Explanation:- For the purpose of
this Sub Rule, "appointment" shall
not include appointment under Rule
9 or appointment by promotion under
Rule 31.
(b)
...................................
..............
(c) " Notwithstanding anything
contained in Clauses (a) and (b)
above, the seniority of a person
appointed to a class, category or
grade in a service on the advice of
the Commission shall, unless he has
been reduced to a lower rank as
punishment, be determined by the
date of first effective advice made
for his Appointment to such class,
category or grade and when two or
more persons are included in the
same list of candidates advised,
their relative seniority shall be
fixed according to the order in
which their names are arranged in
the advice list".
Note- The date of effective advice
in this Rule means the Date of the
letter of the commission on the
basis of which the candidates was
appointed.
Rule 31. Temporary Promotion - (a)
(i) "Where it is necessary in the
public interest owing to an
emergency which has arisen to fill
immediately a vacancy in a post
borne on the cadre of a higher
category in a service or class by
promotion from a lower category and
there would be undue delay in
making such promotion in accordance
with the Rules, the appointing
authority may promote a person
otherwise than in accordance with
the Rules, temporarily.
(b) .....................
...........................
(c) A person promoted under Clause
(i) or clause (ii) of Sub Rule (a)
shall be replaced as soon as
possible by the member of the
service who is entitled to the
promotion under the rules, or by a
candidate appointed in accordance
with the rules, as the case may be.
(d) A person promoted under Sub
Rule (a) or (b) shall not be
regarded as a probationer in the
higher category or be entitled by
reason only of such promotion to
any preferential claim to future
promotion to such higher category.
(e) If such person is subsequently
promoted to the higher category in
accordance with the Rules, he shall
commence his probation, if any, in
such category from the date of such
subsequent promotion or from such
earlier date as the appointing
authority may determine without
prejudice to seniority."
On a careful perusal of the above extracted relevant rules, the following conclusions can be safely reached.
A direct recruit to the cadre of A.C.F. can count seniority only with effect from the date of his appointment as a probationary Assistant Conservator. A person, who has been appointed to a service or post temporarily or provisionally as a stop-gap arrangement, can never be considered as one, who has been appointed to that post or service. If there is no substantive vacancy in the permanent cadre available, no direct recruitment can be resorted to. The direct recruits should get substantive vacancies in the permanent cadre, while recruits by transfer can be adjusted against a permanent vacancy or a temporary vacancy depending upon the vacancy position. A person, who gets a temporary appointment or promotion, as the case may be, shall not be regarded as a probationer in that category and on account of that temporary appointment or promotion, he cannot have any preferential claim to that post. Any commencement of probation for the purpose of counting seniority must precede by an appointment in accordance with the rules. In case a temporary appointee is allowed to start his probation from a date anterior to the date of his subsequent Appointment in accordance with the rules, that should be without prejudice to the seniority of others in the service, in this case, without prejudice to the seniority of direct recruits.
Bearing the above broad conclusions in mind, we may now look into the factual aspects in these cases. The Kerala Public Service Commission advised for training of the directly recruited A.C.Fs. Some time in May, 1976, 1977, and November, 1978. The petitioners in O.P. Nos. 5238/87, 1971/87 and 1388/87 before the High Court were direct recruits to the cadre of A.C.F. and were appointed as probationers after successfully completion of that training on 1.5.78, 1.5.79 and 1.11.80 respectively. The bone of contention of the appellants is that they were appointed long prior to the appointments of the above-said direct recruits and, therefore, they must be given seniority over and above the said direct recruits. It is true that the appellants were appointed earlier in point of time to the appointments of the direct recruits. But the point is that they were not appointed in accordance with the rules in the sense they were not appointed against the permanent vacancies intended for recruits by transfer. They were all appointed temporarily as a stop-gap arrangment. As a matter of fact, before the Division Bench of the High Court the State was called upon to produce the seniority list and also the cadre strength of A.O.F. The Division Bench has observed that the State did not come forward with consistent factual aspect regarding the seniority list and the cadre strength. The High Court in paragraphs 19 and 20 has observed as follows :-
19. In paragraph 13 of the counter
affidavit dated 31.12.1994, the
Chief Conservator of Forests
(protection) stated that the
sanctioned strength of Assistant
Conservator of Forests as on
1.5.1978 is 29; 14 of which are
permanent and 15 are temporary.
While we come to the additional
affidavit dated 10.1.1995 sworn to
by the same Chief Conservator of
Forests (Protection), what we see
is that he asserts that on 1.5.1978
there were 29 cadre posts of
Assistant Conservators of forest in
the Department. From this, it may
lead to an inference that the cadre
strength of Assistant Conservators
of Forests as on 1.5.1978 was 29.
Actually, this stand taken by him
in the additional affidavit dated
10.1.1995 is not correct. As on
1.5.1978, the strength of the
cadre, permanent posts of Assistant
Conservators was only 14 and not 29
as is not stated.
20. From the above discussion, we
come to the conclusion that the
strength of Assistant Conservators
of Forests, permanent cadre, has
been 14 as on 1.5.1978. As on
1.5.1978, from Exhibit P10 order
referred to earlier, it is evident
that respondents 4 to 7 were only
Rangers. They were not regularly
promoted to the cadre of Assistant
conservators of Forests. Their
promotion to the cadre was purely
under Rule 9 (a) (i) of the General
Rules. The promotion can by no
stretch of imagination confer on
them any right to the post, namely,
the post of Assistant Conservators
of Forests."
One other interest in aspect noticed by the High Court was that by proceedings dated 15.11.79 the appellants were given promotion as Senior Grade Rangers w.e.f. 1.7.78. if this be the position on 1.7.78, the claim of the appellants that they were appointed as A.C.Fs. prior to 1.5.78 falls to the ground. This proceedings dated 15.11.79 has been noticed by the High Court and it supports the case of the direct recruits that the appointments of the appellants prior to 15.11.79 were all temporary or stop-gap arrangements. They cannot, therefore, claim seniority over the direct recruits, who were regularly appointed in accordance with the rules. A sample order of appointment was produced to demonstrate that the appointment was produced to demonstrate that the appointments of the appellants were only temporary under Rule 9(a)(i). It is an admitted fact that among the appellants, P.T. Joseph is the senior most and his appointment letter as A.C.F. has been produced, which reads as follows:-
"GOVERNMENT OF KERALA"
Abstract
FOREST DEPARTMENT -ESTABLISHMENT -
ASSISTANT CONSERVATOR OF FORSTS -
PROMOTION - AND POSTINGS - ORDERS
ISSUED.
AGRICULTURE (FOREST - EST.
DEPARTMENT) G.O. Rt. No. 282/75/AD.
Dated, Trivandrum 31.1.75.
Read: - 1. Letter No. El dated
14.1.1975 from Chief Conservator of
Forests, Trivandrum.
ORDER
The action of the Chief
Conservator of Forests in having
granted leave to Sri. K.S.
Devassia, Divisional Forest
Officer, Industrial Plantation
Divn., Perimuzhy with effect from
3.9.1974 and in having directed Sri
P.B. Renganathan, Divisional Forest
Officer, Vazhachal, to hold full
additional charge of the post of
Divisional Forest Officer,
Perumuzhy, during the period is
ratified.
Sri P.T. Joseph, Senior most
Range Officer in the department is
provisionally promoted as Assistant
Conservator of Forests, under rule
9 (a) (i) of the General Rules and
Posts as Divisional Forest Officer,
Perimuzhy , vice Sri. K.S. Devassia
on leave.
(By order of the Governor)
Sd/-
V. Lakshmi Narayana Iyer,
Under Secretary."
After noticing the above aspect, the High Court observed thus:-
"Before proceeding further, it will
be quite interesting to not exhibit
P10 proceedings issued by the Chief
Conservator of forests,
Thiruvananthapuram, on 15.11.1979.
By this proceedings, certain Forest
Rangers were given promotion as
Senior Grade Rangers with effect
from 1.7.1978. That order States
that it was in implementation of
the Direction given in G.O. (P)
860/78/Fin. dated 16.12.1978 Senior
Grade in the scale of Rs. 650-1150
has been allowed in the ratio of
1:3 between Senior grade Rangers
and Rangers. Babuji A. George, K.G.
George and P.T. Joseph are serial
Nos. 19, 20 and 22 in that order
who got the benefit of Senior
Grade. That order further given
1.7.1978 as the date from which
promotion to the cadre of Senior
Grade Range officer is given to
these officers. These officers, who
were rangers and who got promotion
to the cadre of Senior Grade Range
officers with effect from 1.7.1978,
are now shown in the present list
produced before this Court as
having been appointed as Assistant
Conservators of Forests in
December, 1974 and January, 1975.
Learned Government pleader has not
brought before us any rule or
decision of this Court which could
confer on them such a benefit."
It is contended on behalf of the appellants that though the appointment s of the appellants were temporary, the Government has regularised those appointments prior to the appointments of the direct recruits and, therefore, they are entitled to claim seniority over the direct recruits. We are unable to agree with this contention as any appointment/regularisation contrary to the rules, which would prejudice the rights of direct recruits, cannot be sustained. Factually, before the appointments of the direct recruits in the years 1978,1979 and 1980 they were undergoing training as advised by the Kerala Public Service Commission. Therefore, it cannot be contended by the State that no direct recruits were available for appointment, which necessitated the recruitment by transfer. In this connection, we may usefully refer to two recent judgment of this Court arising under the Maharashtra Forests Service. There also the question of Seniority arose between the direct recruits and promotees in the cadre of A.C.Fs. In State of Maharashtra & Anr. , etc. vs. Sanjay Thakre & Ors. [1995 Supp (2) SCC 407], this Court observed as follows:-
"we, therefore, hold that the
present was not a case about which
it could be said that the quota
rule had broken down. In this
connection, it would be apposite to
refer to Keshav Chandra Joshi V.
Union of India and A.N. Sehgal Vs.
Raje Ram Sheron which are judgments
by three-judge and two-Judge
Benches respectively. Both these
cases dealt with the promotions
given to the concerned persons in
excess of the quota, because of
which it was stated that their
promotions were not according to
rules. the promotions were,
therefor, held to be fortuitous; it
was also observed that the
seniority could not be counted from
the dates of fortuitous promotions.
These cases voiced the feeling of
the Court that the State having
made the rules, should implement
them in letter and spirit; any
justification for dereliction in
implementation should not be
countenanced; it should really be
snubbed."
An attempt was made to reconsider the ruling in Sanjay Thakre’s case (supra) in M.S.L. Patil, Asstt. Conservator of Forests, Solarpur (Maharashtra) & ors. vs. State of Maharashtra & ors. [(1996) 11 SCC 361]. This Court while repelling such a plea, reiterated its earlier view in the following manner:-
" In view of these contentions, the
question that arises is whether the
judgment of this Court has been
vitiated by any error of law
warranting reconsideration at the
behest of some of the persons who
are not parties to the earlier
proceedings? it is undoubted that
they were not parties to the
earlier petition but this court has
laid down the general principle of
law and, therefore, whether or not
they are parties to the earlier
proceedings, the general principle
of law stags applicable to every
person irrespective o the fact
whether he is a party to the
earlier order or not. I is not in
dispute that there is a ratio
prescribed for the direct recruits
and the promotees, namely, 1:1. In
other words, for every 100
vacancies the promotees are
entitled only to 50 vacancies. It
is not in dispute that these
promotees have been promoted in
excess of the quota. Under those
circumstances, it is settled law
that the promotees who are
appointed in excess of the quota
cannot get the entire length of
service. Therefore, they are
required to be fitted into
seniority according to the rules.
As to what is the date on which the
promotees or the direct recruits
came to be appointed into the
respective quota is a matter of
record and the seniority is
required to be determined according
to the law laid down by this court.
In several judgments of this Court
it is now firmly settled that
merely because of the fact that the
State Government could not make
direct recruitment due to its
inaction, it cannot be said that
the rule of quota has been broken
down. Therefore, as and when the
direct recruitment has been made,
the direct recruits are entitled to
placement of their seniority into
the vacancies reserved for theme as
per the ratio and the seniority
determined as per the rules within
the respective quota. Similarly,
when the promotees came to be
promoted in accordance with the
rules in excess of their quota,
this Court stated in Keshav Chandra
Joshi V. Union of India through a
Bench of three Hon’ble judges, that
the promotees in excess of the
quota cannot be given seniority
from the respective dates of their
promotions. They have to be
considered only form the respective
dates on which their respective
quota is available. The same
decision was followed and
reiterated in A.N. Seghal V. Raje
Ram Sheoran. Under these
circumstances we do not think that
the judgment of this Court is
vitiated by any error of law for
reconsideration. Even Rule 4,
second proviso has no application
to the facts in this case. Rule 4
contemplates the seniority and
second proviso postulates that when
the recruitment could not be made,
they have to certify the ground on
which it could not be made and
thereafter the seniority has to be
determined. In view of the law now
laid down, the certification of the
non-making of direct recruitment
according to rules, bears no
relevance. The question of carry
forward in this case as laid down
in Mandal case, has no application
for the reason that the recruitment
in proportion is one of the methods
of recruitment and is required to
be made. The balance posts are
required to be recruited by
subsequent publication and the
promotees have no right to get into
the post reserved for the direct
recruits. mandal case concerns
carry forward posts reserved under
Article 16(4) for Scheduled castes,
Scheduled Tribes and other Backward
Classes which has nothing to do in
this case. though some of the
grounds will be available to argue
the case on merits, that is no
ground to reopen the settled law
laid by this court in earlier
decision."
We have already noticed that the appellants were appointed on the relevant dates in excess of their quota. Therefore, any appointments in excess to he quota prescribed for the promotees cannot prejudice the rights of the direct recruits. The common judgment under appeal is quite in accord with the law settled by this Court and the same does not call for any interference.
In the result, the appeals fail and are dismissed accordingly with no order as to costs.