ASHOK RAM PARHAD & ORS. Versus THE STATE OF MAHARASHTRA & ORS.

ASHOK RAM PARHAD & ORS. Versus THE STATE OF MAHARASHTRA & ORS. 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE

 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.822 OF 2023
ASHOK RAM PARHAD & ORS. …APPELLANTS
Versus
THE STATE OF MAHARASHTRA & ORS. …RESPONDENTS
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. This is one more unending dispute arising between direct recruits
and promotees qua their inter se seniority. The post for which the
recruitment took place was the Assistant Conservator of Forest
(hereinafter referred to as “ACF”). The method of recruitment for the
said post was twofold – nomination (direct appointment) and promotion.
Recruits to ACF by promotion assume charge from the day they are
1
promoted to the said post and are not required to undergo two years of
ACF training and one year of field training. This is distinct from the
persons selected and appointed by nomination where such training is
compulsory.
2. The ACF post, in turn, is the feeder cadre to the post of Divisional
Forest Officer (hereinafter referred to as “DFO”). As per Rule 5 of the
Assistant Conservator of Forests in the Maharashtra Forest Service,
Group A (Junior Scale) (Recruitment) Rules, 1998 (hereinafter referred to
as the “1998 Rules”), appointment to the post of ACF shall be in the ratio
of 50:50 from these two sources.
3. The appellants before us were appointed to the post of ACF
through nomination in 2016. They had been recruited in 2014 and went
through a training. Respondent nos.4 to 9 were directly promoted to the
post of ACF in 2014.
Litigation History:
4. The Maharashtra Public Service Commission, respondent no.3,
issued an advertisement on 14.12.2012 to fill up a total of 33 posts of
ACF through Maharashtra Forest Service Examination, 2012. The
appellants applied for the post, for which the selection list was published
on 13.06.2013. However, instead of issuing appointment orders
2
appointing the appellants on probation, respondent no.1 issued a letter
dated 19.06.2013 informing the appellants that they will be sent to preappointment training. The appellants claimed that their representation to
remedy the same remained unanswered.
5. The appellants thus filed an application before the Maharashtra
Administrative Tribunal at Mumbai (hereinafter referred to as the
“Tribunal”) for declaration that their appointment as ACF be considered
from the date of commencement of the training and, that the training
period undergone by them be considered as period of service. They also
sought a direction for payment of salary as per the pay scale prescribed
for the post of ACF by considering the period of training as on
probation/duty.
6. The Tribunal, in terms of its order dated 03.02.2016, partly allowed
the application of the appellants. It was observed that the recruitment
rules for the post of ACF in the Maharashtra Forests Service Class II
(hereinafter referred to as “the 1965 Rules”), which were accompaniment
to the Government Resolution dated 17.02.1965, inter alia provided that
a candidate was eligible for the post of ACF after completing the
prescribed course of training. However, these Rules were not framed
under Article 309 of the Constitution, and were never finalised.
3
Moreover, the draft rules had been superseded by the 1998 Rules, as was
also provided in the Preamble of 1998 Rules. The respondents’ plea that
the candidate would be eligible to be given regular pay scale after
successful completion of probation of three years, was turned down while
opining that no reason was given for non-applicability of Rule 10 of the
Maharashtra Civil Services (General Conditions of Services) Rules, 1981
(hereinafter referred to as the “1981 Rules”), whereby the person shall
draw minimum of time scale attached to the post to which he is
appointed. It was held that the appellants will be entitled to regular pay
after successful completion of probation, retrospectively from the date of
appointment, after deducting the amounts of ‘stipend’ already paid to
them. More significantly, it was declared that the appellants will be
entitled for appointment as ACF from the commencement of their
training on 01.02.2014.
7. The review application filed by respondent no.1 before the
Tribunal was dismissed on 16.09.2016 observing that whether the 1965
Rules were ‘draft’ or not had no bearing upon the outcome of the
application, as the same were superseded by the 1998 Rules and all issues
raised in the review application had already been decided in the original
application.
4
8. The Government apparently accepted the aforesaid judgment and
thus passed a Resolution dated 14.08.2018, resolving that successful
completion of training period would be considered as regular service
from the date of inception of training for all service purposes. The
Resolution also provided that the ACF appointed by nomination shall be
considered from the initial date of their training and the seniority will be
considered accordingly. Respondent nos. 4 to 9 herein were not party
before the Tribunal but filed the writ petition before the High Court, both
against the appellants as well as against the Government of Maharashtra
(who had accepted the Tribunal’s judgment). These private respondents
claimed that they were appointed as Range Forest Officers in 1987 to
1990 and were promoted to the post of ACF in 2014-2015. Their
grievance was that though they were promoted as ACF before the
appellants herein, they were shown junior to the appellants in the
seniority list of ACF.
9. The case of respondent nos. 4 to 9 was based on the 1998 Rules;
more specifically Rule 6 read with Rule 3(b) of the said Rules and
Proviso to Rule 2(B) of the Divisional Forest Officer (in Maharashtra
Forest Service, Class I) (Recruitment) Rules, 1984 (hereinafter referred
to as the “1984 Rules”). The said Rules are reproduced hereinbelow:
Rule 6 of the 1998 Rules
5
“A person appointed to the post by nomination shall be on
probation for a period of three years including two years of
Assistant Conservator of Forests training course and 1 year
field training as decided by Principal Chief Conservator of
Forests, Maharashtra state, Nagpur” (sic.)
.... .... .... .... ....
Rule 3 (b) of the 1998 Rules
“3. Appointment to the post of Assistant Conservator of
Forests in the Maharashtra Forest Service, Group A (Junior
Scale) shall be made either –
xxxx xxxx xxxx xxxx xxxx
(b) by nomination from amongst candidates who are
selected for the Assistant Conservator of Forests training
course, on the basis of result of the competitive examination
held by the commission in accordance with the rules made
in this behalf from time to time and have successfully
completed the training course.”
.... .... .... .... ....
Proviso to Rule 2 of 1984 Rules
“Provided that, in the case of persons directly appointed as
Assistant Conservator of Forests, the period spent on
training at the Government Forest Colleges and the period of
probation, including the extended period of probation, if any,
shall not be counted towards the requisite period of service.”
10. The significant aspect is the Proviso to Rule 2 of the 1984 Rules,
which specifically stipulated that the period spent on training at the
Government Forest College by directly appointed ACF shall not be
counted towards the requisite period of service for purposes of
6
appointment to the cadre of DFO. It is this which is the bedrock of the
plea of the private respondents. The respondents also relied on a
judgment of this Court on R.S. Ajara & Ors. v. State of Gujarat1
 for the
proposition that an administrative resolution cannot take away a right
crystallized under the service rules.
11. On the other hand, the appellants’ case before the High Court was
that the Proviso to Rule 2 of 1984 Rules stood negated in view of the
Government Resolution dated 17.02.1997, wherein the condition of
probation period not being considered as period of experience had been
removed. It was submitted that Rule 6 of 1998 Rules specified that
persons appointed to the post by nomination shall be on probation for
three years including two years of ACF training and one year of field
training. There was a marked distinction between 1965 Rules and 1998
Rules, as the former separately referred to recruitment and appointment
on probation, whereas the latter referred to appointment on probation for
three years, including the period of training. Relying on the same
judgment in the case of R.S. Ajara & Ors.2
, it was contended that the
training period prior to the appointment can also be considered for the
purposes of seniority.
1
(1997) 3 SCC 641.
2
(supra).
7
Proceedings before the High Court
12. The High Court passed an interim order dated 18.04.2019
restraining the respondent authorities from issuing any promotion order
based on the judgment of the Tribunal dated 03.02.2016. The above order
was modified on 23.08.2019 by directing that any promotion made would
be subject to the outcome of the writ petition.
13. The matter was finally adjudicated by the High Court vide the
impugned judgment dated 23.04.2021. It was opined that respondent nos.
4 to 9 would not be affected by the Tribunal’s order to the extent of
directing payment of salary and the pay scale to the appellants from the
date of initiation of the training period, as the respondents’ right would
only be affected while considering the seniority vis-à-vis promotion to
the post of DFO. Since Rule 3(b) read with Rule 6 of the 1998 Rules
shows that the period of training is considered as probation, the direction
of the Tribunal to pay salary to them as per the pay scale was found to be
reasonable.
14. However, on the aspect of fixation of seniority, it was opined that
the case of R.S. Ajara & Ors.3
 was on a factual scenario where, in the
absence of rules regarding fixation of seniority of persons appointed to
3
(Supra).
8
ACF, a Government Resolution was issued suggesting determination of
seniority of directly recruited ACF in Gujarat State Forest Services Class
II by taking into account the period of training. A reference was also
made to Prafulla Kumar Swain v. Prakash Chandra Misra & Ors.,
4
where Regulation 12(c) of the Orissa Forest Services Class II
Recruitment Rules, 1959 provided that appointment to service is to
commence only after successful completion of training, and hence the
seniority would be reckoned from the date of appointment and not date of
recruitment. No such similar Government Resolution or Regulation
providing for fixation of seniority existed in the present matter.
15. The reasoning of the High Court was based on the 1984 Rules
which were framed under the Proviso to Article 309 of the Constitution
and have statutory force. On the other hand, the Government Resolution
dated 17.02.1997 was issued under Article 162 of the Constitution by
General Administration Department of Government of Maharashtra and
hence does not have an overriding effect upon the 1984 Rules. While the
said Resolution provides that probation period shall be considered for
purposes of experience, the 1984 Rules require the period spent on
probation and/or training to be excluded and only the period after
41993 Supp (3) SCC 181.
9
appointment order on successful completion of training and/or probation
to be computed for purposes of promotion to the post of DFO.
16. Even on examination of 1998 Rules, the High Court came to the
same conclusion. Even though the said Rules prescribed fixation of
seniority amongst persons appointed by nomination, their seniority is not
fixed unless and until they pass the final examination of the ACF training
course. Thus, Rule 6 of 1998 Rules was found to be in consonance with
Rule 3(b) of the 1998 Rules where the Commission selects candidates for
the ACF training course and only after successful completion of training
and passing the competitive final examination, would the candidates be
issued the appointment order of ACF. It was observed that Rule 7 of 1998
Rules only prescribed the methodology of fixation of inter se seniority of
the ACF appointed by nomination and does not provide for fixation of
seniority between those appointed by promotion and nomination. The
High Court thus held that the seniority of persons selected for the post of
ACF by nomination shall be counted from the date of issuance of
appointment order after successful completion of training qua the person
appointed to ACF by promotion.
Proceedings and Arguments before this Court:
10
17. On 30.06.2021 while issuing notice in the SLP, this Court directed
the position, as was prevalent prior to the impugned judgment, to
continue to operate for the time being. On 07.02.2022, it was submitted
that both sets of parties had not been promoted. Leave was granted on
02.02.2023.
18. On behalf of the appellants, an endeavour was made to trace out
the history of the creation of the post of the ACF which was formerly a
Class II post initially governed by the 1965 Rules. Appointment by
nomination was on probation for two years (extendable) from among
candidates who successfully completed the course of training after
selection. Thus, training and probation were different terminologies and
training was not considered as appointment to the post. However, this
was stated to change with the adoption of the 1998 Rules coming into
existence. In terms of Rules 3 and 6 of the 1998 Rules, the period of
training is now considered as period of probation and Rule 6 opens with
the expression “a person appointed to the post by nomination”, which is
described under Rule 3(b). The appointment by nomination precedes the
training and the expression “and have” under Rule 3(b) must not be read
as “after” to interpret Rule 3(b) as laying down an eligibility qualification
for appointment, or else the opening part of Rule 6 would be rendered
11
otiose. It was thus submitted that the High Court fell into an error in
coming to the conclusion that the appointment has to be made only after
completion of training course, as this expression was not found in Rule
3(b). Reliance was placed on the judgment of this Court in
Commandant, 11th Battalion, A.P. Special Police (IR) v. B. Shankar
Naik5
 to contend that training which was given cannot be rendered
purposeless.
19. It was next contended that the Government Resolution dated
17.02.1997 was issued by the General Administrative Department,
Maharashtra “by order and in the name of the Governor of Maharashtra”,
which is a deemed rule under Article 309 of the Constitution. The said
Resolution provides that service during probation should be considered
as experience for promotion. It is submitted that an incongruous situation
has arisen in view of the impugned judgment, where for the purposes of
salary, the appellants will be considered to be appointed as from date of
commencement of their training on 01.12.2014, but for selection, the date
of appointment is to be considered after appointment order issued on
successful completion of training.
5
(2003) 5 SCC 580.
12
20. The judgment in Prafulla Kumar Swain6
 case was sought to be
distinguished on facts as Regulation 12(c) of the Orissa Forest Services
Class II Recruitment Rules, 1959 in the said judgment contemplated that
such service will count only from the date of appointment to the service
after successful completion of the course of training.
21. Reliance was also sought to be placed on 1981 Rules, more
specifically Rule 9(14) defining “duty” to include service as probationer
and a course of instructions or training authorized by or under the orders
of the Government. It was further submitted that the 2004 Rules did not
determine the date of appointment by nomination to the post of ACF, and
the 1998 Rules also did not offer any guidance to determine the inter se
seniority between the promotees and direct recruits. It was stated that for
determination of seniority, Rule 4 of the Maharashtra Civil Services
(Regulation of Seniority) Rules, 1982 would be applicable.
22. On the other hand, the respondents defended the impugned
judgment to contend that there could be no ambiguity that the period of
training at the Government Forest Colleges and the period of probation
including the extended period of probation, if any, had to be necessarily
6
(supra)
13
excluded for computing the period of service. The appointment orders
had been issued qua the appellants long after the respondents were
appointed as ACF. Further, Rule 2(a) read with Rules 3 and 7 of the 1998
Rules had clarified that the nominated ACF would be entitled for an
appointment only after completion of training. Training could not be a
mere formality and in Prafulla Kumar Swain7
 case, this Court while
applying similar rules held that recruitment is just an initial process and
may lead to eventual appointment in service.
23. The respondents further submitted that the endeavour of the
appellants to rely on Government Resolutions dated 25.01.1990,
29.07.1993 and 17.02.1997 and claim that Rule 2 of the 1984 Rules had
no relevance is fallacious as, Government Resolutions cannot override
the Rules. Further, the Resolutions neither speak about the promotion to
the post of DFO nor about how the seniority had to be reckoned for ACF
appointed by promotion or by nomination.
Conclusion:
24. We have considered the aforesaid rival submissions and perused
the impugned judgment.
7
(supra).
14
25. In service jurisprudence, the service rules are liable to prevail.
There can be Government resolutions being in consonance with or
expounding the rules, but not in conflict with the same. On having set
forth this general proposition, we now examine the scenario of the Rules
as prevalent. If we turn to the statutory Rules framed under Article 309
of the Constitution, i.e., the 1984 Rules, Rule 2 refers to the appointment
to the post of the DFO and the same to be made by promotion from
amongst officers of the Maharashtra Forest Service and also by
appointment directly. The Proviso to Rule 2 of the 1984 Rules is
unambiguous and quite clear, i.e., the period spent on training at
Government Forest Colleges and other period of probation including
extended period of probation, if any, “shall not be counted towards the
requisite period of service.” Thus, what is envisaged is that the
appointment is different from the recruitment process, which starts with
the commencement of training. There can be possibilities of a candidate
not completing the training satisfactorily, thereby resulting in the
candidate’s removal on probation. Such probation period can also be
extended to see whether a candidate improves in performance. (Hence,
even if the Government Resolution dated 25.01.1990 upgraded the post
15
of ACF from Class II to Class I, the Proviso to Rule 2 of the 1984 Rules
will continue to hold valid in determining the period of service.)
26. In the aforesaid context if we turn to the 1998 Rules, more
specifically Rule 3(b), the stipulation is that in case of a nomination, the
same is based on the result of the competitive examination held by the
Commission in accordance with the Rules and the candidate is required
to have “successfully completed the training course.” Rule 6 provides for
probation for a period of three years including two years of ACF training
course and one year field training, as decided by the Principal Chief
Conservator of Forests. Thus, even reading of these extant Rules makes
the process for such direct recruitments quite clear. The Entrance and
Training Rules (Revised) for the State Forest Service Officers, 2004
(hereinafter referred to as the “2004 Rules”) are comprehensive in
character and set forth how the recruitment process will take place.
27. We do believe that on behalf of the appellants there is overemphasis on the expression “person appointed to the post by nomination”
under Rule 6 of the 1998 Rules, without appreciating the context in
which such expression has been used. In contending that the
interpretation given by the High Court would amount to making the
16
opening part of Rule 6 otiose, what is lost sight of is that were the
appellants’ plea to be accepted, it would amount to making the Proviso to
Rule 2 of the 1984 Rules otiose. The Government resolutions issued by
the Administrative Department cannot have the status of a statutory rule
although such resolutions may have their own effect.
28. It appears to us that the High Court’s view is the correct view. The
resolutions have been passed in the context that the person who
successfully completes the training effectively gets the monetary
compensation for his training period and is not deprived of the same.
This cannot amount to giving seniority from the date of initial
recruitment process to determine inter se seniority, when the Proviso to
Rule 2 of the 1984 Rules makes the date of appointment for direct
recruits clear. This is also in the background that while the direct
appointees have no experience in the field having been freshly recruited,
the promotees have been doing the task.
29. We fail to appreciate how the judgment in Prafulla Kumar Swain8
case can be distinguished in this behalf merely by reason of the
regulation therein containing the expression “only”. It is not necessary to
8
(supra).
17
refer to factual scenarios of different judgments and different rules or
general definition of what would amount to be on “duty”, when the rule
in question is quite clear. We say so even in the context of the judgment
in R.S. Ajara & Ors.9
 case as in any service, whether on the issue of
appointment or promotion, it is what the rule says, which will matter.
One cannot derive general principles to decide such issues. We do
appreciate that there can be scenarios where the rule specifically states to
the contra. But, in the present case, the very factum of Proviso to Rule 2
of the 1984 Rules being inserted in the rule has to be assigned a meaning,
as otherwise, it would imply that the Proviso has become otiose. It
cannot be said that the Proviso is not to be read in the context of the
aspect of promotion.
30. We also find that Rules 3B and 6 of the 1988 Rules also leave no
ambiguity in this behalf and in fact read in consonance and the period of
probation has to be necessarily excluded from period of service. As
already stated, the grant of monetary benefit is a different aspect.
31. On having come to the conclusion that the Government resolutions
cannot override statutory rules, and the resolutions neither speaking about
9
(supra).
18
promotion to the post of DFO nor about seniority conclusively, the
Proviso would operate with full force.
32. We are thus of the clear view that the applicable Rules leave no
ambiguity in the matter and must prevail.
33. The result of the aforesaid is that the appeal is dismissed leaving
the parties to bear their own costs.
...................……………………J.
[Sanjay Kishan Kaul]
 ...................……………………J.
[Abhay S. Oka]
New Delhi.
March 15, 2023.
19

Comments

Popular posts from this blog

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

Atal Pension Yojana-(APY Chart) | अटल पेंशन योजना