Ashok Ram Parhad vs The State Of Maharashtra

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

JUDGMENT

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. Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2023.03.15 18:54:04 IST

Recruits to ACF by promotion assume charge from the day they are Reason:

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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 pre-

appointment 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.

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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 Gujarat 1 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

4 1993 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:

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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.

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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).

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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 over-

emphasis 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.

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