R.R.S.
Choudan & Ors Vs. Union of India & Ors [1995] INSC 199
(28 March 1995)
Agrawal, S.C. (J) Agrawal, S.C. (J) Manohar Sujata V. (J) S.C. Agrawal,
J.:
CITATION:
JT 1995 (3) 400 1995 SCALE (2)436
ACT:
HEAD NOTE:
1. In
this appeal from the judgment dated August 9, 1988 passed by the Central
Administrative Tribunal, Jabalpur Bench, Madhya Pradesh [hereinafter referred
to as 'the Tribunal'] the question that arises for consideration is whether for
the purpose of determination of seniority of the appellants in the Indian
Forest Service [hereinafter referred to as 'the Service'] the period of their officiation
on the post of Officer on Special Duty [O.S.D.] in the State of Madhya Pradesh
since 1977 till the date of their appointment to the Service should be taken
into account.
2.
Appellants Nos. 1 to 9 were selected for appointment to the post of Assistant
Conservator of Forests in the Superior Forest Service of the State of Madhya Pradesh in the year 1964. After completion
of their training at the Indian Forest College, Dehradun they were appointed as
Assistant Conservator of Forests in the year 1966.
Appellants
Nos. 10 to 12 were selected for such training in 1965 and on completion of
their training they were appointed as Assistant Conservator of Forests in 1967.
They were all confirmed on the post of Assistant Conservator of Forests with
effect from October 1,
1968. In the year 1966
the Service was constituted under the All India Services Act, 1951. The Service
is governed by various rules and regulations, including the Indian Forest
Service (Cadre) Rules, 1966 [hereinafter referred to as 'the Cadre Rules], the
Indian Forest Service (Recruitment) Rules, the Indian Forest Service
(Appointment by promotion) Regulations, 1966 [hereinafter referred to as 'the
Appointment by Promotion Regulations'], the Indian Forest Service (Regulation
of Seniority) Rules, 1968 [hereinafter refereed to as 'the Se- niority Rules'],
made by the Central Government. The provisions in these Rules and Regulations
are substantially the same as those contained in similar rules and regulations
governing the Indian Administrative Service and the Indian Police Service.
3. By
order dated January 23, 1974 the Government of Madhya Pradesh abolished 27
posts in the senior pay scale of Rs.403 700-1250 in the cadre of the Service
and in their place equal number of temporary posts of Officer on Special Duty (O.S.D.)
in the pay scale of Rs.680- 1000-EB- 1 150 were created in the State Forest
Service. In the said order it was stated that "this arrangement would
remain effective for a period of one year or upto the time of preparation of
select list according to Rule 5 of the I.F.S. (Appointment by, Promotion)
Regulations, whichever is earlier. By order dated July 11, 1975 the said order
dated January 23, 1974 was extended for a further period of one year or till
the preparation of select list for the promotion to the Service, whichever is
earlier, and by another order dated May 25, 1976 it was further extended for a
period of one year or till the preparation of select list for the promotion to
the Service, whichever is earlier. By orders dated February 22, 1977, March
5, 1977, March 21, 1977 and April 22, 1977 the appellants were promoted on the posts of O.S.D. in the
pay scale of Rs.680-1150. While they were thus officiating the names of the
appellants were included in the select list for the year 1978 prepared by the
Selection Committee under the Appointment by Promotion Regulations in December,
1977. The said select list contained the names of 67 persons out of which 38
persons were appointed to the Service for the year 1978. Since the appellants
were lower down in merit in the said select list they could not be appointed to
the Service on the basis of the said select list. The names of the appellants
were not contained in the select list for the year 1979 which was prepared on December 19, 1978. The names of some of the
appellants were contained in the select list for the year 1980 but the select
list of 1981 did not contain the names of any of the appellants. The names of
some of the appellants were included in the select lists for the years 1982 and
1983 but in the select list for the year 1984 the same of none of the
appellants was included.The select list for the year 1985 contained the names
of all the appellants and by order dated September 24, 1985 the appel- lants
were appointed to the Service and were allotted the Madhya Pradesh Cadre. They
have been assigned 1981 as the year of allotment for the purpose of seniority
in the Service. Their claim is that they should have been assigned 1971 as the
year of allotment as they were continuously holding the senior post of Deputy
Conservator of Forests a cadre post in the Service uninterruptedly from 1977
till the date of their appointment to the service and V.N. Khare, a direct
recruit of 1971 batch, had started officiating on the senior post in 1977. The
appellants filed an application (0,A. 25/1988) before the Tribunal for the
redress of their grievance. The said position of the appellants has been dismissed
by the Tribunal by judgment dated August 9, 1988.
4.Since
the main question relates to seniority, a reference may be made to the relevant
provisions contained in the Seniority Rules. Rule 3 of the Seniority Rules
provides for assignment of year of allotment. The relevant parts of the said
Rule are as under :- "3. Assignment of year of allotment (1) Every officer
shall be assigned a year of allotment in accordance with provisions hereinafter
contained in this rule.
(2)
The year of allotment of an officer appointed to the Service shall be (a) x x x
x x x xxxxxxx 404 (b) x x x x xx x x x x xxx (c) Where an officer is appointed
to the Service by promotion in accordance with rule 8 of the Recruitment Rules,
the year of allotment of the junior-most among the officers recruited to the
Service in accordance with rule 7 or if no such officer is available the year
of allotment of the junior most among the officers recruited to the Service in
accordance with rule 4(l) of these Rules who officiated continuously in a
senior post from a date earlier than the date of commencement of such officiation
by the former :
Provided
that seniority of officers who are substantively holding the post of a
Conservator of Forests or a higher post on the date of constitution of the
Service and are not adjudged suitable by the Special Selection Board in
accordance with the Indian Forest Service. (Initial Recruitment) Regulations,
1966, but who may later on be appointed to the Service under Rule 8 of the
Recruitment Rules shall be determined ad hoc by the Central Government in
consultation with the State Gov- ernment concerned and the Commission.
Explanation
1.- In respect of an officer appointed to the Service by promotion in
accordance with sub-rule (1) of rule 8 of the Recruitment Rules, the period of
his continuous officiation in a senior post shall, for the purpose of
determination of his seniority, count only from the date of the inclusion of
his name in the Select List, or from the date of his officiating appointment to
such senior post, whichever is later.
5.
Under Rule 3(2)(c) the year of allotment of an officer who has been appointed
to the Service by promotion is determined by giving him the benefit of
continuous officiation in a senior post and he is given the same year of
allotment as is given to the junior most among officers directly recruited in
the Service who officiated con- tinuously in a senior post from the date
earlier than the date of commencement of such officiation of the promoted
officer. Explanation 1 expressly prescribes that the benefit of the period of
continuous officiation can be availed by a promoted officer only from the date
of the inclusion of his name in the select list or from the date of his
officiating appointment to such senior post, whichever is later. This means
that the two requirements, namely, officiating appointment to the senior post
and inclusion of the name in the select list, must be fulfilled before the
benefit of officiation can be availed by a promoted officer for the purpose of
seniority. From the said provisions it necessarily follows that both these
conditions must be satisfied not only at the stage of commencement of the pe- riod
of officiation but should continue to be satisfied during the entire period of officiation
till appointment is made to the Service. In other words, under Rule 3(2)(c) of
the Seniority Rules a promoted officer can avail the benefit of the period of
continuous officiation in a senior post for the purpose of Seniority only if
the following two requirements are fulfilled at the time of his appointment to
the Service:
(i) he
had been continuously officiating in a senior post; and (ii) his name was in
the select list during the period of such continuous officiation.
405
6. In
order that they may be able to claim the benefit of the aforesaid provisions
for the purpose of determination of their se- niority in the Service the
appellants must first show that they were continuously of- ficiating in a
senior post from 1977 till their appointment to the Service in 1985. The
expression 'senior post' is defined in Rule 2(g) of the Seniority Rules in the
following terms :- " 'Seniority post' means- a post included and specified
under item 1 of the Cadre of each State in the Schedule to the Indian Forest
Service (Fixation of Cadre Strength Regulations, 1966, and includes a post
included in the number of posts specified in items 2 and 5 of the said cadre,
when held on senior scale of pay, by an officer recruited to the Service in
accordance with sub-rule (1) of rule 4 or rule 7 of the Recruitment
Rules."
7.
According to the aforesaid definition a senior post is confined to the posts
included and specified under item 1 of the Cadre of each State in the Schedule
to the Indian Forest Service (Fixation of Cadre Strength) Regulations, 1966 and
a post included in the number of posts specified in items 2 and 5 of the said
cadre, when held on senior scale of pay, by an officer recruited to the Service
in accordance with sub-rule (1) of Rule 4 or Rule 7 of the Recruitment Rules.
8. The
question is whether the post of O.S.D. on which the appellants were appointed
in 1977 is a senior post under Rule 2(g) of the Seniority Rules. The said post
is not a post included and specified under item 1 of the Cadre of the State of Madhya Pradesh in the Schedule to the Indian Forest (Fixation of Cadre Strength) Regulations, 1966. It is also
not a post included in the number of posts specified in items 2 and 5 of the
said cadre. Moreover, from the order dated January 23, 1974 whereby the posts
of O.S.D. were created it would appear that the said posts were created in the
State Forest Service in the place of the posts in the senior pay scale Rs.
700-1250 of the Service which were kept in abeyance and the post of O.S.D. had
a lower pay scale of Rs. 600-1150. This shows that the post of O.S.D. was not a
post equivalent to a cadre post in the senior pay scale of the Service but was
a post in the State Service having a lower pay scale than the post in the
senior pay scale in the Service.
9. Shri
Madhava Reddy, the leaned senior counsel appearing for the appellants, has,
however, urged that though the ap- pointment of the appellants was made on the
posts of O.S.D. but they were actually discharging the duties of Deputy
Conservator of Forests during the period 19771985 and that the post of Deputy
Conservator of Forests is a senior pay scale post in the cadre of the Service
and, therefore, the appellants must be treated to have continuously officiated
on a senior post in the Service. We find it difficult to accept this contention
in view of the provisions contained in Rules 8,9 and 10 of the Cadre Rules
provide as follows :- "Rules 8. Cadre posts to be filled by cadre
officers. Save as otherwise provided in these rules every cadre post shall be
filled by a cadre officer.
Rule
9. Temporary appointment of non-cadre officers to cadre posts.- (1) A cadre
post in a State may be filled by a 406 person who is not a cadre officer if the
State Government or any of its Heads of Department to whom the State Government
may delegate its powers of making appointments to cadre posts is satisfied-
(a)that
the vacancy is not likely to last for more than three months; or
(b)that
there is suitable cadre officer available for filling the vacancy.
(2)
Where in any State a person other than a cadre officer is appointed to a cadre
for a period exceeding three months, the Stat e Government shall forthwith
report the fact to the Central Government together with the reasons for making
the appointment.
(3) On
receipt of a report under sub-rule (2) or otherwise, the Central Government may
direct that the State Government shall terminate the appointment of such person
and appoint thereto a cadre officer, and where any direction is so issued, the
State Government shall accordingly give effect thereto.
(4)
Where a cadre post is likely to be filled by a person who is not a cadre
officer for a period exceeding six months, the Central Government shall report
the full facts to the Union Public Service Commission with the reasons for
holding that no suitable officer is available for filling the post and may in
the light of the advice given by the Union Public Service Commission give
suitable direction to the State Government concerned.
Rule
10. Report to the Central Government of vacant cadre posts.- Cadre posts shall
not be kept vacant or held in abeyance for periods exceeding six months without
the approval of the Central Government. For this purpose, the State Government
shall make a report to the Central Government in respect of the following
matters, namely:- (a) the reasons for the proposal;
(b) the
period for which the State Gov- ernment proposes to keep the post vacant or
hold it in abeyance;
(c)
the provisions, if any, made for ex- isting incumbent of the post; and (d)
whether it is proposed to make any arrangements for the performance of the
duties of the post to be kept vacant or held in abeyance, and if so, the
particulars of such arrangements. " 10.These rules show that while Rule 8
requires that every cadre post shall be filled by a cadre officer, Rule 9 lifts
the embargo in certain circumstances and permits a cadre post to be filled by a
person who is not a cadre officer provides the State Government concerned is
satisfied that either (i) the vacancy is not likely to last for more than three
months, or (ii) there is no suitable cadre officer available for filling the
vacancy. In case the appointment is for a period exceeding three months
sub-rule (2) of Rule 9 requires that the State Government shall report
forthwith to the Central Government the fact of such appointment together with
reasons for making such appointment and under sub-rule (3) of Rule 9 on receipt
of such report the Central Government may direct that the State Government
shall terminate the appointment of such person and appoint thereto a cadre
officer and where such direction is so issued the State Government is required
to give effect thereto. In cases where a cadre post is likely to be 407 filled
by a person who is not a cadre officer for a period exceeding six months subrule
(4) of Rule 9 further requires that the Central Government shall report the
full facts to the Union Public Service Commission with reasons for holding that
no suitable cadre officer is available for filling the post and may in the
light of the advice given by the Union Public Service Commission give suitable
directions to the State Government concerned. Rule 10 lays down that cadre post
shall not be kept vacant or held in abeyance for periods exceeding six months
without the approval of the Central Government and the State Government is
required to make a report to the Central Government in respect of the matters
specified in clauses (a) to (d) of the said Rule. 1 1. As regards keeping in
abeyance the posts in the senior pay scale in the Service under order dated
January 23, 1974 the stand of the Union of India is that no report was made by
the State Government to the Central Government as required by Rule 10 and the
Central Government did not give its approval to keep these posts in abeyance.
Since, we arc not required to consider the legality of the order of the State
Government dated January 23, 1974, keeping the said posts in abeyance, we do
not propose to go into this question.
12. We
will, however, examine whether the provisions of Rule 9 were complied with in
so far as the appointment of the appellants on a cadre post is concerned. In
this regard both the Union Government as well as the State Government have
taken the stand that the appointment of the appellants as O.S.D. was on a post
in the State Forest Service and that it was not a cadre post in the Service
and, therefore,none of the requirements of Rule 9 of th Cadre Rules was
required to be compile with. The appellants can succeed only i they arc able to
show that they were appointed on the post of Deputy Conservator of Forests a
post included in the cadre of the Service in accordance with Rule 9 of the
Cadre Rules. We, however, find that the appointment of the appellants was not
on the post of Deputy Conservator o Forests but was not on the post of Deputy
Conservator of Forests but was on the post of OSD, a post carrying lower pay
scale and falling in the State Forest Service. Since the appointment of the
appellants was not on a post in the cadre of the Service the requirements of
Rule 9 were not, complied with in making the appointment and for continuing
them on the said post during the period 1977-85. In our opinion, therefore, it
cannot be said that the appellants were continuously officiating in a senior
post in the Service prior to their appointment to the Service in 1985.
13.
Moreover, even if it be assumed that the appellants were continuously
officiating in a senior post in the Service during the period 1977-85 they
cannot avail the benefit of the said officiation for the purpose of seniority
because after the select list of 1978 which included their names the next
select list for the year 1979 did not contain their names and so also their
names were not included in the select lists for the years 1981 and 1984. The
names of some of the appellants were included in the select lists for the years
1980, 1982 and 1983 and names of all the appellants were included in the select
list for the year 1985. The submission of Shri Madhava Reddy is that the
non-inclusion of the names of the appellants in the select lists for the years
subsequent to the year 1978 408 is of no consequence because the names of the
appellants were included in the select list for the year 1978 and since they
were officiating on a senior post on the date of such inclusion in 1978 and
they continued to officiate till 1985 they are entitled to count the entire
period of officiation for the purpose of assignment of year of allotment under
Rule 3(2)(c) of the Seniority Rules. We do not find any merit in this
submission. As indicated earlier Explanation 1 to sub-rule (2Xc) of Rule 3
envisages that an officer who is appointed to the Service by promotion can take
the benefit of the period of continuous officiation in a senior post for the
purpose of seniority if, on the date of his ap- pointment to the Service, (a)
he had been continuously officiating in a senior post, and (b) his name was in
the select list. Both these requirements must co-exist not only at the stage of
commencement of the period but also not only at the stage of commencement of
the period but also during the entire period for which benefit is claimed. If
either of these conditions ceases to exist at any stage before the appointment
to the Service, there will be a break in the continuity of officiation and the
benefit of officiation would not be available for the purpose of seniority.
This may occur either due to posting on a post which is not a senior post in
the cadre or due to non-inclusion of the name in the select list for the
subsequent year. The consequence in either even is the same and the period of officiation
cannot be taken into account for the purpose of seniority, Therefore, the
effect of the non-inclusion of the names of the appellants in the select lists
for the years 1979, 1981 and 1984 is that one of the requirements of Rule 3(2)(c)
of the Seniority Rules which could enable appellants to avail the benefit of
continuous officiation had ceased to exist.
The
fact that the appellants were officiating in the senior post during the period
when their names were not in the select list, by itself, would not enable them
to obtain the benefit of such officiation for the purpose of seniority.
The
appellants are, therefore, not entitled to count the pe- riod of continuous officiation
in the post of O.S.D. during the period 1977-85 for the purpose of
determination of their seniority and assignment of the year of allotment and
the Tribunal has rightly denied the benefit of such officiation to the
appellants.
14.Shri
Madhava Reddy has placed reliance on the decisions of this Court in Harjeet
Singh etc. v. Union of India & Ors., (1980) 3 SCR 459; Amrik Singh &
Ors., v. Union of India & Ors., (1980) 3 SCR 485, and Union of India etc.
v. G.N. Tiwari & Ors., (1985) Suppl. 3 SCR 744. In Harjeet Singh (supra)
this Court was dealing with the rules governing the Indian Police Service and
in the context o temporary appointment of non-cadre officers to cadre post in
the Indian Police Service this Court has referred to the re- quirements of Rule
9 of the Indian Police Service (Cadre) Rules, 1954 and has observed that such
appointment is subject to the directions of the Central Government who may
terminate such appointment and that the Central Government too is bound to
obtain the advice of the Union Public Service Commission if appointment is to
extend beyond six months. In Amrik Singh (supra), which also relates to the
India Police Service, this Court was again dealing with Rule 9 of the Indian
Police Service (Cadre) Rules, 1954 and has observed:- 409 "In the present
case, no such report by the State Government to the Central Government was
sent, no consultation by the Central Government with the Commission was done.
We are agreed that by-passing the Public Service Commission bespeaks prima
facie impropriety, but we are not inclined to consider this grievance as
destructive of the officiation of Ahluwalia in the special conspectus of facts
present here. For one thing, Ahluwalia has nothing to do with the error; for
example, no senior of Ahluwalia suffered, thirdly, the Central Government, in
exercise of its power to relax the Rules, in good faith and, indeed in equity,
did relieve the officer against this violation." [p.498] 15.In the said
decision though this Court has disapproved the violation of the provisions of
Rule 9 but in the facts of that case it was held that the officiation could be
taken into consideration. In the recent decision in Syed Khalid Razvi &
Ors. v. Union of India & Ors., 1993 Supp (3) SCC 575, this Court in the
context of rules governing the Indian Police Service, has observed :- "In
other words, where the vacancy/vacancies continue for more than three months,
the prior concurrence of the Central Government is mandatory. If it continues
for more than six months prior approval of the Union Public Service Commission
is also mandatory. Any appointment in violation thereof is not an ap- pointment
in accordance with the law," [p.598]
16. In
G.N. Tiwari' (supra) this Court, in the facts of that case, has held that there
was a deemed approval by the Central Government to the officiation in the cadre
post of the officers belonging to the State Service since the State Government
had sent a report to the Central Government and the Central Government had also
asked for consolidated proposal of officiation of non-cadre officers on cadre
posts. This decision has no application to the present case because no such
report was sent by the State Government and the Central Government was not even
apprised of the ap- pointment of the appellants and, therefore, there is no
question of deemed approval of the officiation of the appellants on a senior
post in the Service by the Central Government.
17. As
pointed out earlier, the appellants were never appointed to a cadre post in the
Service and their appointment was on the post of O.S.D. in the State Forest
Service. The cases on which reliance has been placed by Shri Madhava Reddy do
not, therefore, lend any support to the case of the appellants.
18.
Another contention that has been urged by Shri Madhava Reddy is that under Rule
4(2) of the Cadre Rules it is incumbent on the part of the Central Government
to reexamine the strength and composition of each cadre in consultation with
the State Government concerned at the interval of three years. It has been
pointed out that after the constitution of the Service in 1966 the cadre review
was due in 1969,1972 and 1975 but no such review was done till 1977 and
thereafter it was done in 1981 and no review was done in 1984. The appellants
were included in the select list of 1978 after the review of 1977. The Tribunal
has, therefore, rightly pointed out that the appellants cannot be said to be
prejudiced because after such review was done in 1977 the names of the
appellants were included in the select list of 1977 but in spite of such
inclusion they could not be appointed. As regards non-revi- 410 sion of the
cadre prior to 1977 the claim of the appellants must be held to be belated and
was rightly rejected by the Tribunal.
19.
For the reasons aforementioned we do not find any merit in this appeal and it
is accordingly dismissed. But in the circumstances the parties are left to bear
their own costs.
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