State of
Himachal Pradesh Vs. Shri J.L. Sharma & ANR
[1997] INSC 825 (18 November 1997)
G.N.
RAY, G.B. PATTANAIK
ACT:
HEADNOTE:
PATTANAIK.
J.
Delay
condoned.
Leave
granted.
This
appeal by special leave is directed against the judgement of the Himachal Pradesh
Administrative Tribunal, Shimla dated 16th December, 1996 passed in O.A. No. 109 of 1987. The
respondents are promoted officers to the Himachal Pradesh Forest Service Class
II. They filed an application before the Tribunal for a direction that the direct
recruits to the Forest Service Class II are entitled to their seniority form
the date of their joining after completion of the training and not from the
date of their joining the training at the Forest Research Institute in terms of
the Notification dated 30th
April, 1986. The
Tribunal by the impugned judgment having granted that relief and having held
that the direct recruits are only entitled to get pay while continuing under
training in the Forest Research Institute and will not get the benefit of seniority
vis-a-vis the promotes, the State has come up in appeal. The question that
arises for consideration, therefore, is whether a direct recruit will be
entitled to count the training period for the purpose of his seniority in the
service or not? The answer to this question will depend upon the relevant
service rules which govern the conditions of service of the employees in a
particular state.
The
learned counsel appearing for the appellant- state contends that the Rules
framed by the Governor under proviso to Article 309 of the Constitution dealing
with the conditions of service in respect of Himachal Pradesh Forest Service
(Class II) is called the Himachal pradesh Forest Service (Class II) recruitment
promotion and certain conditions of Service Rules, 1966. Rule (4) thereof
provides that the method of recruitment to the post in the said service, age
limit, qualifications and other matters connected therewith shall be as
specified in columns 5 to 18 of the said schedule. Thus the Schedule itself
becomes a part of the statutory recruitment rules determining the conditions of
service. By Notification dated 30th April, 1986
Schedules to the Rules were amended and in column (10) the following provision
was inserted:
"The
candidates selected for training at Forest Research Institute and colleges, Dehradun
or at any other place, shall while undergoing the training be treated as 'in
service' candidates from the date of joining the Institute.
During
the period of training, the candidates shall receive pay in the lowest stage of
the pay scale of HPFS-II applicable to the service & allowances admissible
thereon during the first year and at the second stage of that scale during the
second year;
Provided
that the second increment shall be granted only when a direct recruit has
passed the prescribed examination (s) from the concerned
Institute/college." In view of the amended provisions of the Recruitment
Rules, the training period of a direct recruit will have to be treated as ' in
service', and therefore, the said period necessarily will have to be counted
for the purpose of determining the seniority of a direct recruit in the
service. The Tribunal, according the learned counsel for the appellant, was in
error in interpreting the aforesaid provision of the Rules. In support of his
contention reliance has been placed on a decision of this Court in the case of
R.S. Ajara & others v. State of Gujarat and others, 1997(3) SCC 641. Mr.
Sharma, the learned counsel appearing for the promotes - respondents, on the
other hand contended that the Rules read as a whole clearly indicate that the
amended provisions merely conferred a right upon a candidate joining the
Institute for training to get pay in the lowest stage of the pay scale of Himachal
pradesh Forest Service Class II and the said training period cannot be counted
for the purpose of determining the seniority of the direct recruits. According
to the learned counsel, if column (10) of the Rules is interpreted to mean that
the training period of a direct recruit also be counted for seniority then the
said interpretation will be repugnant to the several other provisions of the
Rules and it will not be possible to harmonize the inconsistencies. The learned
counsel further contended that in view of the decision of this Court in Prafulla
Kumar Swain v. Prakash Chandra Misra and others, 1993 Supp (3) SCC 181, which
is a three Judge Bench Judgment of this Court, the training period of a direct
recruit cannot be counted for determining seniority of the direct recruits and
it merely specified the monetary emoluments which a selected candidate would
get during the period of training. They do not become members of the service
during the period of training but merely treated as 'in service'.
This
is also apparent from the letters issued by the State Government to the
successful candidates indicating that the officers shall be on probation for
two years on joining the Department of the Forest Farming and Conservation
after completion of their S.F.S. course from their respective batches commencing
from 1.4. 1985, 1.11.1985 and 1.4.1986.
The
learned counsel further urged that column (7) of the Schedule clearly provides
that before becoming a member of the service, a direct recruit has to obtain
certain essential qualifications one of them being a Diploma course at the
Forest Research Institute and College, Dehradun or its equivalent. This being
the position a direct recruit cannot be said to be a member of the service even
before obtaining the essential qualifications, and therefore, the training
period cannot be counted for the purpose of seniority. In this connection, the
learned the judgment of this Court in A.N. Sehgal and others v. Raje Ram sheoran
and others, 1992 Supp (1) SCC 304. It was further urged that under the Rules
even a direct recruit is required to undergo probation for a period of two
years, and therefore, until successful completion of the said probation period
there is no appointment to the cadre and consequently no question of counting
the training period for the purpose of seniority.
In
this view of the matter, the counsel urged that the Tribunal rightly disposed
of the Application by holding that the training period of direct recruits will
be treated only for the purpose of getting pay and not for the purpose of
seniority.
In view
of the rival submissions at the Bar the only question that arises for
consideration is as to what is the correct interpretation of Column (10) of the
Amended Recruitment Rules which statutorily declares the period of training to
be 'in service'. Under the Constitution under Article 309 the Legislature has
the power to regulate the recruitment, and conditions of service of persons
appointed, to public services and posts in connection with the affaires of the Union or of any State. Under proviso to Article 309 the
president in case of Union and the Governor in case of a state
has been empowered to make rules regulating the recruitment and conditions of
service of persons appointed until provision in that behalf is made by or under
an Act of the appropriate Legislature. In exercise of such power under the
proviso to Article 309 the recruitment Rules to the Himachal Pradesh Forest
Service Class II has been made and the said Rules also has been amended. The
Amended rules, therefore, is a competent legislation determining the service
conditions of persons recruited to the Himachal Pradesh Forest Service Class
II.
In
R.S. Ajara's case (supra), this Court considered the question as to whether
training period of a direct recruit can be taken into account for fixation of
seniority in the cadre. In that case, the statutory Recruitment Rules did not
at all deal with the question of seniority of the officers directly recruited
and promotes. The Government, however, passed a Resolution dated 31.1.1992
declaring therein that the training period of directly recruited Assistant
conservators of Forests in Gujarat State Forest Service, Class II, shall be
taken into account for the purposes of seniority. This Court considered the
aforesaid resolution of the Government and came to hold that since in the
statutory Recruitment Rules there is no provision for determination of inter
seniority between the promotes and direct recruits and there being no provision
which can be said to be contrary to the aforesaid administrative resolution of
the State Government, the resolution must be held to be valid and the period
during which a direct recruit undergoes training can be taken into account for
determining his seniority in the cadre of class II Forest Service. The case in
hand is a much stronger case than the case which was for consideration before
this court in R.S. Ajara since in the present case the statutory Recruitment
Rules itself contained the stipulation that the training period shall be
treated to be 'in service'. We are unable to accept the interpretation given by
the Tribunal to the amended provisions of column (10) of the Rules to the
effect that the training period of direct recruits will be treated only for the
purpose of getting pay and not for the purpose of seniority. If really the
legislative intent would have been to grant pay to the candidates while on
training then it would not have been necessary to indicate that "while
undergoing the training be treated as ' in service' candidates from the date of
joining the Institute". The Language of Column (10) as amended by the
Third Amendment Rules of 1986 is clear and unambiguous and unequivocally
indicates that the period of training shall be treated as ' in service'. We do
not find any prohibition or restrictions in the statutory rules prohibiting the
'in Service' period for being counted for the purpose of seniority. This being
the position in our considered opinion the Tribunal committed serious error of
law in holding that the training period will be treated to be 'in service' only
for the purpose of getting pay and not for the purpose of seniority.
No
such limited interpretation can be given to the express language used in column
(10) and on the other hand on giving a full effect the provisions of Column
(10) the conclusion is irresistible that the service and will necessarily,
therefore, be counted for the seniority of the direct recruits. The on which
the learned counsel for the respondent relied upon is of no assistance inasmuch
as in the said case the Regulation 12 (c) in unmistakable terms had provided
that the training period will not count as service under Government and service
will count only from the date of appointment to the service after successful
completion of the course of training. In fact the aforesaid decision has been
duly noticed by this Court in RS. Ajara's case and on account of the
distinctive features of regulation containing a prohibition it has been held
that the decision is of no application. We have also considered the submissions
of the learned counsel for the respondent that such interpretation of ours
would be repugnant to other provisions of the Recruitment Rules but on a
thorough scrutiny of the Rules we do not find any repugnancy which can be said
to occur on account the interpretation given by us to column (10) of the
Schedule and other columns in the Schedule. We have also carefully gone through
the decision of this Court in the case of A. N. Seghal (supra) and we do not
find anything stated therein contrary to what we have indicated in the present
case in interpreting the provisions of the Recruitment Rules determining the
service conditions of the employees of the Himachal Pradesh Forest Service
Class II. In the aforesaid premises the impugned judgment and order of the
Tribunal is set aside and O.A. No. 109 of 1987 stands dismissed. it is held
that the training period of the direct recruits shall be counted for
determining the seniority in the service provided of course the said direct
recruit successfully completes the training and then is absorbed in Class II
Forest Service. This appeal is allowed but in the circumstances there will be
no order as to costs.
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