RAMAN G. PRAJAPATI v. STATE OF GUJARAT

filed by four RFOs who have challenged the communication dated 29.9.1994 (Annexure "G") by which the State Government in the Forest Department instructed the Principal Conservator of Forests to fix the seniority of RFOs in such a manner that the RFOs of 1979-81 batch selected earlier were required to be shown en-bloc seniors to the RFOs who were selected in 1980-81 batch without considering the date of their joining as RFOs. This petition is not directly connected with the controversy raised in the first three petitions but since reference is made to some of the Rules which are also subject matter of interpretation in the aforesaid petitions, this petition has also been heard alongwith the other petitions.

6.(cid:9)Before narrating the rival contentions of the parties, it is necessary to refer to a few relevant Rules which have a bearing on the controversy involved in this group of petitions.

6.1(cid:9)Recruitment to the post of Rangers (subsequently redesignated as Range Forest Officers or RFO for brevity) was previously done under the Rangers (Subordinate Forest Service) Recruitment Rules, 1969 framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution. Appointment to the post could be made either by promotion from amongst Forest Officers or by direct selection. In this group of petitions, we are concerned only with direct recruitment. Rules 9, 10, 13, 14 and 16 of the said Rules read as under :- "9. The selected candidate shall be required to undergo practical training in the Forest for a period of eight weeks. During the period of practical training the candidate shall receive stipend and travelling allowance, as the Government may, from time to time, fix.

10.(cid:9)The candidate finally selected will be required to undergo training for the Rangers Course at the Northern Forest Ranger College, Dehradun or Southern Forest Ranger College, Coimbatore for a period of two years.

13.(cid:9)On successful completion of the Training Course from the Rangers' College, the candidate shall be appointed as a Ranger if he passes with higher standard certificate and as a Forester if he passed with lower standard certificate.

14.(cid:9)The seniority of the Rangers shall be governed by their respective ranks in the final examination, irrespective of the date of joining the service.

16.(cid:9)A candidate who has passed the Rangers' Course with lower standard, shall be eligible for promotion as a Ranger, after completion of a period of five years. " (emphasis supplied)

6.2(cid:9)In exercise of powers conferred by the proviso to Article 309 of the Constitution, the Governor of Gujarat also made the Rangers (Subordinate Forest Service) (Recruitment Examination) Rules, 1974 under which the Gujarat Public Service Commission is to hold a competitive examination comprising of written test followed by viva-voce and personality test for recruitment to the posts of Rangers (RFOs) in the Forest Department. The candidates passing the said examination are included in the Select List of candidates for recruitment to the posts of RFO and are sent for the training for the Rangers' Course at the specified institutions at Dehradun/Coimbatore. Rules 21 to 25 read as under :- "21.(cid:9)On successful completion of the Training Course from the Ranger's College, the candidate shall be appointed as a Ranger if he passes with higher standard certificate and as a Forester if he passes with lower standard certificate.

22.(cid:9)The seniority of the Rangers shall be governed by their respective ranks in the final examination at the Ranger's College irrespective of the date of joining the service.

23.(cid:9)The candidate who had passed the Rangers' Course with lower standard, shall be eligible for promotion as a Ranger, after completion of a period of five years.

24.(cid:9)The candidate appointed as a Ranger shall be required to pass the Departmental Examination and an examination in Hindi or Gujarati or both in accordance with the rules made by the Government in that behalf.

25.(cid:9)No candidate shall be allowed more than 2 chances for appearing at the examination provided that a candidate belonging to Scheduled Tribes or Scheduled Castes shall be allowed chances not exceeding four for appearing at the examination. " (emphasis supplied)

6.3(cid:9)In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor of Gujarat has also framed the Gujarat Forests Department (Forest Officers Examination) Rules, 1972 for regulating the conditions of service of persons appointed to the posts in the Gujarat Forest Service, Class II and III in the Forest Department, in so far as they relate to the passing of the Departmental Examination. The Rules are contained in the Government Notification dated 15.1.1972. The relevant Rules are Rules 4, 6, 7, 8 and 9. Rule 5 is relevant but the same only provides that the examination required to be passed under Rule 4 shall have to be passed in not more than three chances within the specified period. Two provisos to Rule 4(1) are not relevant here as there is a proviso for additional chances for persons belonging to reserved categories and also the proviso to the effect that the chances availed of under the said Rules shall be counted under the present Rules. "4.(1)(cid:9)In order to be eligible for promotion to the post of an Assistant Conservator of Forest, a Range Forest Officer appointed prior to the appointed date shall have to pass the examination within a period of 5 years from the date of his appointment Range Forest Officer unless he has been exempted from the passing the examination ; (cid:9)xxx(cid:9)xxx(cid:9)xxx(cid:9)xxx(cid:9)xxx (2)(cid:9)In order to be eligible for promotion to the post of an Assistant Conservator of Forests a Range Forest Officer appointed on or after the appointed date shall have to pass the examination within a period of five years from the date of his appointment as a Range Forest Officer unless he had been exempted from passing the examination provided that no Range Forest Officer shall be competent to appear at the examination unless he has completed two years' service as Range Forest Officer. (cid:9) (cid:9) (cid:9)xxx(cid:9)xxx(cid:9)xxxx(cid:9)xxxx(cid:9)xxx

6.(cid:9)(1) If a direct recruit for the post of Assistant Conservator of Forests fails to pass the examination as required under these rules, his services shall be terminated. (cid:9)(2) If a Range Forest Officer fails to pass the examination as required under these rules, he shall not be eligible for promotion as Assistant Conservator of Forests until he passes the examination. (cid:9)Provided that if in the case of any such person the State government is satisfied that he could not pass the examination at which he had his last chance for reasons beyond his control or that he failed to pass such an examination by a very narrow margin of marks, the State government may, after recording reasons in writing, give him one more chance to pass the examination.

7.(cid:9)A Range Forest Officer who fails to pass the examination within the period specified in rule 4 and according to the chances available to him under rule 5, shall, notwithstanding such failure be eligible to appear at any time in such examination on payment of an examination fee of Rs.30/- and if he passes the examination, he shall be eligible for promotion to the higher post. (cid:9)Provided that such a person shall lose his seniority and shall also become Junior to all those who may have passed the examination earlier than him.

8.(cid:9)A Range Forest Officer who passes the examination within the specified and in specified chances shall on his promotion to the post of Assistant Conservator of Forests be assigned seniority over a person, if any, who although being junior to him in the cadre may have been promoted to the higher post earlier by reason of his having passed the examination earlier.

9.(cid:9)In the event of a qualified Range Forest Officer not being available for promotion to the post of the Assistant Conservator of Forests, an unqualified Range Forest Officer, whose chances to pass the examination are not exhausted under rule 4 or 5 may be promoted to officiate as the Assistant Conservator of Forests subject to the condition that he shall be reverted on availability of a person qualified for promotion or on his failure to pass the examination within the specifgied period and according to the chances specified in rule 4 or 5, whichever even occurs earlier. Explanation : In this rule "a qualified Range Forest Officer' means a Range Forest Officer who had passed the Departmental Examination of a Range Forest Officer who is exempted from passing the said examination and the expression "an unqualified Range Forest Officer' shall be constructed accordingly.

6.4(cid:9)By Government notification dated 6.3.1993, an amendment was made to the 1972 Rules for departmental examination by substituting the proviso to Rule 7 by the following proviso :- "Provided that such a person shall not be entitled to claim seniority over those persons who have been promoted before he becomes eligible for promotion on account of their having passed the Departmental Examination earlier than him notwithstanding that he was senior to the persons so promoted in the cadre from which promotion was given. "

7.(cid:9)At the hearing of these petitions, Dr Mukul Sinha, learned counsel for the petitioners in first two petitions raised the following contentions :- (A) The Departmental Examination Rules of 1972 do not contain the Rules for determining seniority in the cadre of RFOs but they merely contain the Rules for determining the eligibility for promotion to the higher cadre of ACFs and, therefore, the seniority list for the cadre of RFOs has to be prepared only on the basis of Rule 22 of the RFO Rules of 1974 which is in pari materia with Rule 14 of the 1969 Rules. Hence, the seniority list dated 4.2.1994 of the RFOs prepared on the basis of the Departmental Examination Rules of 1972 is illegal and null and void ab-initio. (B) The proviso to Rule 7 of Departmental Examination Rules of 1972 whether before amendment or after amendment only restricts the scope of Late Latifs claiming seniority in the higher cadre of ACFs and it does not rob them of their seniority in the lower cadre of RFOs.

In support of the said contention, strong reliance in placed on the decision of a Division Bench of this Court in 1985 (2) GLR 1077. (C) Assuming that the Departmental Examination Rules of 1972 contain the rules for determining seniority in the cadre of RFOs, all the matters relating to seniority in the cadre of RFOs and promotion to the cadre of ACFs after 6.3.19993 are governed by the Departmental Examination Rules of 1972 as amended by the Government Notification dated 6.3.1993 particularly the amendment to proviso to Rule 7. (D) Praying for a writ to direct the respondent-authorities to prepare the seniority list of RFOs for the purpose of promotion to the post of ACFs with effect from and after 6.3.1993 on the basis of the amended proviso to Rule 7 does not amount to praying for giving retrospective effect to the 1993 amendment because the petitions are filed only for praying for giving prospective effect to the said amendment i.e. with effect from the date of the notification containing the amendment to Rule 7.

It is contended that the said amendment was made pursuant to the recommendations made by the General Administration Department through Government Resolution dated 2.4.1975 as modified by the Government Resolution dated 30.9.1978. (E) The entire object of the amendment to the proviso to Rule 7 was to soften the rigour of the loss of seniority which was being caused to late Latifs (who passed the Departmental Examination beyond the specified chances or beyond the specified period) but the respondent-authorities are acting illegally and inconsistent with the object of the amendement by acting upon the seniority list of RFOs as on 1.1.1991 even after the date of amendment (6.3.1993) as if there was no amendment to the proviso to Rule 7 of the Departmental Examination Rules of 1972. It is vehemently contended that service conditions pertaining to seniority are liable to alteration by subsequent changes that may be introduced in Rules and except to the extent of protecting promotions that have already been earned, the revised rules will operate to govern seniority and future promotion prospects of all persons in the concerned service on and after 6.3.1993. Strong reliance is placed on the decisions of the Apex Court in AIR 1982 SC 1064 (para 17), 1989 (4) SCC 689 (paras 16 & 17), 1997 (6) SCC 623, 1998 (4)

O R D E R

31.(cid:9)In view of the above discussion, the following order is passed :- (cid:9)Special Civil Application No. 449/94 is dismissed. Rule is discharged with no order as to costs. ---------- (cid:9)Special Civil Application No. 3110/99 is dismissed. Rule is discharged with no order as to costs. ---------- (cid:9)Special Civil Application No. 6325/94 and Special Civil Application No. 7611/98 are partly allowed to the following extent :- A It is declared that the respondent authorities acted illegally in operating the seniority list dated 3.2.1994 reflecting the position of the Range Forest Officers as on 1.1.1991 for the purpose of granting promotions to the cadre of Assistant Conservators of Forests after 6.3.1993 and that promotions given by the respondent authorities from the cadre of Range Forest Officers to the cadre of Assistant Conservators of Forest from 6.3.1993 onwards were not in accordance with the Gujarat Forests Departmental (Forest Officers Examination) Rules, 1972 as amended by the Amendment Rule contained in the Government Notification dated 6.3.1993. B It is directed that - (1) the respondent authorities shall prepare a fresh seniority list of Range Forest Officers reflecting their seniority as on 6.3.1993 on the basis of the aforesaid Departmental Examination Rules of 1972 as amended by the Government Notification dated 6.3.1993. Such seniority list shall cover all the employees holding the posts of Range Forest Officer (previously designated as Rangers) as on 6.3.1993. (2) Thereafter with effect from 6.3.1993 the respondent authorities shall readjust the promotions to the cadre of Assistant Conservators of Forests on the basis of such fresh seniority list of Range Forest Officers. However, the officers who were actually promoted from the cadre of Range Forest Officers to the cadre of Assistant Conservators of Forests between

6.3.1993 (the date of notification amending the proviso to Rule 7) and 12.10.1998 (the date on which for the first time this Court made the promotions to be cadre of Assistant Conservators of Forests subject to the result of Sp.C.A. No.7611/98) shall not be reverted, but for the purpose of determining seniority in the cadre of Assistant Conservators of Forests, their promotions shall be adjusted as regular promotions as and when they become due for promotion to the cadre of Assistant Conservators of Forests on the basis of the fresh seniority list to be prepared by the respondent authorities as per the aforesaid direction. (3) Henceforth the respondent authorities shall give promotions from the cadre of Range Forest Officers to the cadre of Assistant Conservators of Forests on the basis of the fresh seniority list to be prepared by the respondent authorities as per the above direction. (cid:9)Rule is accordingly made absolute to the aforesaid extent in Special Civil Application Nos. 6325 of 1994 and in 7611 of 1998 with no order as to costs. (cid:9) (cid:9)Sd/-(cid:9) October 27, 1999(cid:9) (cid:9)(M.S. Shah, J.) (cid:9)At this stage, the learned counsel for the contesting respondents pray for stay of operation of this judgment for some time to enable their clients to have further recourse in accordance with law. (cid:9)In view of the above request, the operation of this judgment shall remain stayed till 30.11.1999. (cid:9) (cid:9)Sd/- October 27, 1999(cid:9) (cid:9)(M.S. Shah, J.) sundar/- (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9)