& Ors Vs. B. Muraleedharan & Ors  INSC 447 (1 September 1998)
Ahmad, K. Venkataswami, S. Rajendra Babu Venkataswami, J.
APPEAL NOS. 11526-11529 OF 1995 WITH CIVIL APPEAL NO. 11531 OF 1995
these appeals, the vexed and unending question of seniority between the direct
recruits and promotees arises for our consideration.
these appeals, the question relates to a dispute that has arisen in the cadre
of Assistant Conservator of forests, whose services are governed under the Kerala
common ground that recruitment to the cadre of Assistant Conservator of Forests
(hereinafter called the "A.C.F.") is directly as well as by transfer.
The proportion between the direct recruits and recruitment by transfer is also
fixed as 3:2 in the Kerala Forest Service Special Rules. The seniority of a
directly recruited A.C.F. has to be determined by the date of his appointment
as probationary Assistant Conservator. It is the claim of the promotees -
appellants that they were appointed by promotion as Assistant Conservator of
forests long before 1.5.78., on which date the first respondent in civil Appal
No. 11527/95 was appointed as a probationary Assistant Conservator. The Other
two directly recruited Assistant Conservators were appointed as probationary
Conservators subsequent to 1.5.78.
the dispute centres round the claim of the appellants whether they were
appointed before 1.5.78 and whether such claim is sustainable under the
relevant Kerala Forest Service Special Rules and also the Kerala State and subordinate Service Rules. We may at once point out
that the first respondent in Civil Appeal No. 11527/95 was appointed in the
cadre in accordance with the above-mentioned rules on 1.5.78, is not in
dispute. Likewise, the fact that seniority of that respondent has to be
reckoned on and from 1.5.78, is also not controverted. However, it is the case
of the directly recruited Assistant Conservators in these appeals that the
appointments of the appellants, if any, prior to 1.5.78 were all under rule
9(a)(i) of the General Rules and the same cannot be taken into account for the
purpose of inter se seniority. According to them, the inter se seniority can be
reckoned from the date of regular appointment as Assistant Conservators in
accordance with the Rules, in particular, Rule 2 read with Rule 8 of the
considering the appeals further, it is necessary to set out the relevant
Service Rules. Kerala Forest Service Special Rules Rule 2. Appointment - (a) Appointment
to the several categories of the service shall be made as follows:- Category
Method of recruitment (1) (2)
Chief Conservator By prompts on from Conservators
Conservators By promotion from Dy. Conservators
Depute Conservator By promotion from Assistant Conservators
Conservators By direct recruitment or recruitment by transfer from among
Rangers in Kerala Forest Subordinate Service.
Explanation: - Direct recruitment and
recruitment by transfer from among rangers shall be in the proportion 3:2 to
the category of Assistant Conservators and the ratio shall be applicable only
to the extent to which qualified and suitable candidates are available in each
o the two categories. In the absence of the required number of direct recruits
to be appointed against the vacancies apportioned to them, such vacancies shall
also be filled up by recruitment by transfer and vice versa.
that substantive vacancies alone in the category of Assistant Conservators
shall be filled up in accordance with the seniority of approved probationers.
8. Seniority - the seniority of a directly recruited Assistant conservator
shall be determined by the date of his appointment as probationary Assistant
such date is the same in the case of two or more members, the seniority inter
se shall be determined by their rank in the pass list issued by the Forest College, Dehra
Service Rules Rule 18 (a) - The Government shall suspend the lien of an officer
on a permanent post which he holds substantively if he is appointed in a
substantive capacity –
a permanent post outside the cadre on which he is borne, or
Provisionally to a post on which another officer would hold a lien had his lien
not been suspended under this Rule.
State and Subordinate Service Rules, 1958 Rule 21 (a) " A person is said
to be "appointed to a service" when the accordance with these Rules
or in accordance with the Rules applicable at the time, as the case may be, he
discharges for the first time the duties of a post borne on the Cadre of such
service or commences the probation, instruction or training prescribed for
Explanation: The Appointment of a person
holding a post borne on the cadre of the one service to hold additional charge
of a post borne on the cadre of another service or to discharge the current
duties thereof does not amount to appointment to the latter service.
(9) "Member of a service" means a person who has been appointed to
that service and who had not retired or resigned, been removed or dismissed,
been substantively transferred or reduced to another service, or been discharge
otherwise than of want of a vacancy he may be a probationer, an approved
probationer or a full member of that service.
(13) A candidate is said to be "recruited by transfer" to a service -
(i) If his appointment to the service is in accordance with the orders issued
or rules prescribed for recruitment by transfer to the service; and (ii) If at
the time of his first appointment thereto (a) he is either a full member or an
approved probationer in any other service, the rules for which prescribe a
period of probation for members thereof.
(15) " Service" means a group of persons classified by the state
Government as a State or Subordinate Service, as the case may.
- When the context so requires "service" means the period during
which a person holds a post or a lien on a post or is a member of a service as
(18) 'Cadre' - The permanent cadre of each service, class category and grade
shall be determined by the State Government.
5. "Method of recruitment - Where the normal method of recruitment to any
service, class or category is neither solely by direct recruitment nor solely
by transfer but is both by direct recruitment and by transfer - (a) The
proportion or order in which the special rules concerned may require vacancies
to be filled by persons recruited direct and by those recruited by transfer
shall be applicable only to substantive vacancies in the permanent cadre;
person shall be recruited direct only against a substantive vacancy in such
permanent cadre, and only if the vacancy is one which should be filled by a
direct recruit under the special Rules refereed to in Clause (a) and (c)
Recruitment to all other vacancies shall be made by Transfer".
- (1) All permanent vacancies and temporary vacancies except those of short
duration shall be treated as substantive vacancies.
Leave vacancies and vacancies of less then 6 months duration shall be treated
as vacancies of short duration) (Amended with effect from 17.12- 1958 vide G.O.
(P) S/PD dated 17-1- 1967).
9. " Temporary appointments - (a) (i) where it is necessary in the public
interest, owing to an emergency which has arisen to fill immediately a vacancy
in a post borne on the cadre of a service, class or category and there would be
undue delay in making such appointment in accordance with these rules and the
Special rules, the appointing authority may appoint a person otherwise than in
accordance with the said Rules, temporarily.
A person appointed under Clause (1) shall be replaced as soon as possible by a
member of the service or an approved candidate qualified to hold the post under
the said rules.
(iv) A person appointed under Clause (i) or (ii) shall not be regarded as a
probationer in such service class or category or be entitled by reason only of
such appointment to any preferential claim to future Appointment to such
service, class or category.
18 (a) "Date of commencement of probation of persons first appointed
temporarily - "If a person having been appointed temporarily under
Sub-Rule (a) or Sub-Rule (c) of Rule 9 to a post borne on the cadre of any
service, class or category otherwise than in accordance with the Rules
governing appointments thereto, is subsequently appointed to the service, class
or category in accordance with the Rules, he shall commence his probation from
the date of such subsequent Appointment or from such earlier date as the
appointing authority may determine, without prejudice to seniority of others.
20. Probationer's suitability for full membership - (a) "At the end of the
prescribed or extended period of probation as the case may be, the appointing
authority shall consider he probationer's suitability for full membership of
the service, class or category for which he was selected.
the appointing authority decides that a probationer is suitable for such
membership, it shall as soon as possible issue an order declaring the
probationer to have satisfactorily completed his probation. On the issue of
such order, the probation shall be deemed to have satisfactorily completed his
probation, on the date of the expiry of the prescribed or extended period of
24. Appointment of full members- (a) "Subject to the provisions of Rule 8
an approved probationer shall be appointed to be a full member in the class or
category for which he was selected, at the earliest possible opportunity, in
any substantive vacancy which may exist or arise in the permanent cadre of such
class or category and if such vacancy existed from a date previous t the issue
of the order of appointment, he may be so appointed with retrospective effect
from the date or, as the case may be, from any subsequent date from which he
was continuously on duty as a member of the service in such class or category
or in the higher class or category. Provided that which more than one approved
probationer is available for such Appointment as full member, the senior most
approved probationer on the date of vacancy shall be appointed.
where appointment to any service, class or category is according to rules
normally both by direct recruitment and by transfer, vacancies against which
persons have been recruited direct shall be regarded as a distinct group while
all other vacancies shall be regarded as another distinct group, and
appointment of full members in accordance with Sub Rule (a) shall be made
separately in such of these groups".
27. Seniority - (a) Seniority of a person in a service, class category or grade
shall, unless he has been reduced to a lower rank as punishment, be determined
by the date of the order of his first appointment to such service, class,
category or grade".
For the purpose of this Sub Rule, "appointment" shall not include
appointment under Rule 9 or appointment by promotion under Rule 31.
" Notwithstanding anything contained in Clauses (a) and (b) above, the
seniority of a person appointed to a class, category or grade in a service on
the advice of the Commission shall, unless he has been reduced to a lower rank
as punishment, be determined by the date of first effective advice made for his
Appointment to such class, category or grade and when two or more persons are
included in the same list of candidates advised, their relative seniority shall
be fixed according to the order in which their names are arranged in the advice
The date of effective advice in this Rule means the Date of the letter of the
commission on the basis of which the candidates was appointed.
31. Temporary Promotion - (a) (i) "Where it is necessary in the public
interest owing to an emergency which has arisen to fill immediately a vacancy
in a post borne on the cadre of a higher category in a service or class by
promotion from a lower category and there would be undue delay in making such
promotion in accordance with the Rules, the appointing authority may promote a
person otherwise than in accordance with the Rules, temporarily.
person promoted under Clause (i) or clause (ii) of Sub Rule (a) shall be
replaced as soon as possible by the member of the service who is entitled to
the promotion under the rules, or by a candidate appointed in accordance with
the rules, as the case may be.
person promoted under Sub Rule (a) or (b) shall not be regarded as a
probationer in the higher category or be entitled by reason only of such
promotion to any preferential claim to future promotion to such higher
such person is subsequently promoted to the higher category in accordance with
the Rules, he shall commence his probation, if any, in such category from the
date of such subsequent promotion or from such earlier date as the appointing
authority may determine without prejudice to seniority." On a careful
perusal of the above extracted relevant rules, the following conclusions can be
direct recruit to the cadre of A.C.F. can count seniority only with effect from
the date of his appointment as a probationary Assistant Conservator. A person,
who has been appointed to a service or post temporarily or provisionally as a
stop-gap arrangement, can never be considered as one, who has been appointed to
that post or service. If there is no substantive vacancy in the permanent cadre
available, no direct recruitment can be resorted to.
direct recruits should get substantive vacancies in the permanent cadre, while
recruits by transfer can be adjusted against a permanent vacancy or a temporary
vacancy depending upon the vacancy position. A person, who gets a temporary
appointment or promotion, as the case may be, shall not be regarded as a
probationer in that category and on account of that temporary appointment or promotion,
he cannot have any preferential claim to that post. Any commencement of
probation for the purpose of counting seniority must precede by an appointment
in accordance with the rules. In case a temporary appointee is allowed to start
his probation from a date anterior to the date of his subsequent Appointment in
accordance with the rules, that should be without prejudice to the seniority of
others in the service, in this case, without prejudice to the seniority of
the above broad conclusions in mind, we may now look into the factual aspects
in these cases. The Kerala Public Service Commission advised for training of
the directly recruited A.C.Fs. Some time in May, 1976, 1977, and November,
1978. The petitioners in O.P. Nos. 5238/87, 1971/87 and 1388/87 before the High
Court were direct recruits to the cadre of A.C.F. and were appointed as
probationers after successfully completion of that training on 1.5.78, 1.5.79
and 1.11.80 respectively. The bone of contention of the appellants is that they
were appointed long prior to the appointments of the above-said direct recruits
and, therefore, they must be given seniority over and above the said direct
recruits. It is true that the appellants were appointed earlier in point of
time to the appointments of the direct recruits. But the point is that they
were not appointed in accordance with the rules in the sense they were not
appointed against the permanent vacancies intended for recruits by transfer.
They were all appointed temporarily as a stop-gap arrangment. As a matter of
fact, before the Division Bench of the High Court the State was called upon to
produce the seniority list and also the cadre strength of A.O.F. The Division
Bench has observed that the State did not come forward with consistent factual
aspect regarding the seniority list and the cadre strength.
High Court in paragraphs 19 and 20 has observed as follows :-
paragraph 13 of the counter affidavit dated 31.12.1994, the Chief Conservator
of Forests (protection) stated that the sanctioned strength of Assistant
Conservator of Forests as on 1.5.1978 is 29; 14 of which are permanent and 15
we come to the additional affidavit dated 10.1.1995 sworn to by the same Chief
Conservator of Forests (Protection), what we see is that he asserts that on
1.5.1978 there were 29 cadre posts of Assistant Conservators of forest in the
Department. From this, it may lead to an inference that the cadre strength of
Assistant Conservators of Forests as on 1.5.1978 was 29.
this stand taken by him in the additional affidavit dated 10.1.1995 is not
correct. As on 1.5.1978, the strength of the cadre, permanent posts of
Assistant Conservators was only 14 and not 29 as is not stated.
From the above discussion, we come to the conclusion that the strength of
Assistant Conservators of Forests, permanent cadre, has been 14 as on 1.5.1978.
As on 1.5.1978, from Exhibit P10 order referred to earlier, it is evident that
respondents 4 to 7 were only Rangers. They were not regularly promoted to the
cadre of Assistant conservators of Forests. Their promotion to the cadre was
purely under Rule 9 (a) (i) of the General Rules. The promotion can by no
stretch of imagination confer on them any right to the post, namely, the post
of Assistant Conservators of Forests." One other interest in aspect
noticed by the High Court was that by proceedings dated 15.11.79 the appellants
were given promotion as Senior Grade Rangers w.e.f. 1.7.78. if this be the
position on 1.7.78, the claim of the appellants that they were appointed as A.C.Fs.
prior to 1.5.78 falls to the ground. This proceedings dated 15.11.79 has been
noticed by the High Court and it supports the case of the direct recruits that
the appointments of the appellants prior to 15.11.79 were all temporary or
stop-gap arrangements. They cannot, therefore, claim seniority over the direct
recruits, who were regularly appointed in accordance with the rules. A sample
order of appointment was produced to demonstrate that the appointment was
produced to demonstrate that the appointments of the appellants were only
temporary under Rule 9(a)(i). It is an admitted fact that among the appellants,
P.T. Joseph is the senior most and his appointment letter as A.C.F. has been
produced, which reads as follows:- "GOVERNMENT OF KERALA" Abstract
FOREST DEPARTMENT -ESTABLISHMENT - ASSISTANT CONSERVATOR OF FORSTS - PROMOTION
- AND POSTINGS - ORDERS ISSUED. AGRICULTURE (FOREST - EST. DEPARTMENT) G.O. Rt. No. 282/75/AD. Dated, Trivandrum 31.1.75.
- 1. Letter No. El dated 14.1.1975 from Chief Conservator of Forests, Trivandrum.
O R D
action of the Chief Conservator of Forests in having granted leave to Sri. K.S.
Devassia, Divisional Forest Officer, Industrial Plantation Divn., Perimuzhy
with effect from 3.9.1974 and in having directed Sri P.B. Renganathan,
Divisional Forest Officer, Vazhachal, to hold full additional charge of the
post of Divisional Forest Officer, Perumuzhy, during the period is ratified.
P.T. Joseph, Senior most Range Officer in the department is provisionally
promoted as Assistant Conservator of Forests, under rule 9 (a) (i) of the
General Rules and Posts as Divisional Forest Officer, Perimuzhy , vice Sri. K.S.
Devassia on leave.
order of the Governor) Sd/- V. Lakshmi Narayana Iyer, Under Secretary."
After noticing the above aspect, the High Court observed thus:- "Before
proceeding further, it will be quite interesting to not exhibit P10 proceedings
issued by the Chief Conservator of forests, Thiruvananthapuram, on 15.11.1979.
proceedings, certain Forest Rangers were given promotion as Senior Grade
Rangers with effect from 1.7.1978. That order States that it was in
implementation of the Direction given in G.O. (P) 860/78/Fin. dated 16.12.1978
Senior Grade in the scale of Rs. 650-1150 has been allowed in the ratio of 1:3
between Senior grade Rangers and Rangers. Babuji A. George, K.G. George and
P.T. Joseph are serial Nos. 19, 20 and 22 in that order who got the benefit of
Senior Grade. That order further given 1.7.1978 as the date from which
promotion to the cadre of Senior Grade Range officer is given to these officers. These officers, who
were rangers and who got promotion to the cadre of Senior Grade Range officers with effect from 1.7.1978,
are now shown in the present list produced before this Court as having been
appointed as Assistant Conservators of Forests in December, 1974 and January,
Government pleader has not brought before us any rule or decision of this Court
which could confer on them such a benefit." It is contended on behalf of
the appellants that though the appointment s of the appellants were temporary,
the Government has regularised those appointments prior to the appointments of
the direct recruits and, therefore, they are entitled to claim seniority over
the direct recruits. We are unable to agree with this contention as any
appointment/regularisation contrary to the rules, which would prejudice the
rights of direct recruits, cannot be sustained. Factually, before the
appointments of the direct recruits in the years 1978,1979 and 1980 they were
undergoing training as advised by the Kerala Public Service Commission.
Therefore, it cannot be contended by the State that no direct recruits were
available for appointment, which necessitated the recruitment by transfer. In
this connection, we may usefully refer to two recent judgment of this Court arising
under the Maharashtra Forests Service.
also the question of Seniority arose between the direct recruits and promotees
in the cadre of A.C.Fs. In State of Maharashtra & Anr. , etc. vs. Sanjay Thakre & Ors. [1995 Supp
(2) SCC 407], this Court observed as follows:- "we, therefore, hold that
the present was not a case about which it could be said that the quota rule had
broken down. In this connection, it would be apposite to refer to Keshav
Chandra Joshi V. Raje Ram Sheron which are judgments by three-judge and
two-Judge Benches respectively. Both these cases dealt with the promotions
given to the concerned persons in excess of the quota, because of which it was
stated that their promotions were not according to rules. the promotions were, therefor,
held to be fortuitous; it was also observed that the seniority could not be
counted from the dates of fortuitous promotions.
cases voiced the feeling of the Court that the State having made the rules,
should implement them in letter and spirit; any justification for dereliction
in implementation should not be countenanced; it should really be
snubbed." An attempt was made to reconsider the ruling in Sanjay Thakre's
case (supra) in M.S.L. Patil, Asstt. Conservator of Forests, Solarpur (Maharashtra) & ors. vs. State of Maharashtra & ors. [(1996) 11 SCC 361].
This Court while repelling such a plea, reiterated its earlier view in the
following manner:- " In view of these contentions, the question that
arises is whether the judgment of this Court has been vitiated by any error of
law warranting reconsideration at the behest of some of the persons who are not
parties to the earlier proceedings? it is undoubted that they were not parties
to the earlier petition but this court has laid down the general principle of
law and, therefore, whether or not they are parties to the earlier proceedings,
the general principle of law stags applicable to every person irrespective o
the fact whether he is a party to the earlier order or not. I is not in dispute
that there is a ratio prescribed for the direct recruits and the promotees,
namely, 1:1. In other words, for every 100 vacancies the promotees are entitled
only to 50 vacancies. It is not in dispute that these promotees have been
promoted in excess of the quota. Under those circumstances, it is settled law
that the promotees who are appointed in excess of the quota cannot get the
entire length of service. Therefore, they are required to be fitted into
seniority according to the rules.
what is the date on which the promotees or the direct recruits came to be
appointed into the respective quota is a matter of record and the seniority is
required to be determined according to the law laid down by this court.
several judgments of this Court it is now firmly settled that merely because of
the fact that the State Government could not make direct recruitment due to its
inaction, it cannot be said that the rule of quota has been broken down.
Therefore, as and when the direct recruitment has been made, the direct recruits
are entitled to placement of their seniority into the vacancies reserved for
theme as per the ratio and the seniority determined as per the rules within the
respective quota. Similarly, when the promotees came to be promoted in
accordance with the rules in excess of their quota, this Court stated in Keshav
Chandra Joshi V. Union of India through
a Bench of three Hon'ble judges, that the promotees in excess of the quota
cannot be given seniority from the respective dates of their promotions. They
have to be considered only form the respective dates on which their respective
quota is available. The same decision was followed and reiterated in A.N. Seghal
V. Raje Ram Sheoran. Under these circumstances we do not think that the
judgment of this Court is vitiated by any error of law for reconsideration.
Even Rule 4, second proviso has no application to the facts in this case. Rule
4 contemplates the seniority and second proviso postulates that when the
recruitment could not be made, they have to certify the ground on which it
could not be made and thereafter the seniority has to be determined. In view of
the law now laid down, the certification of the non-making of direct
recruitment according to rules, bears no relevance. The question of carry
forward in this case as laid down in Mandal case, has no application for the
reason that the recruitment in proportion is one of the methods of recruitment
and is required to be made. The balance posts are required to be recruited by
subsequent publication and the promotees have no right to get into the post
reserved for the direct recruits. mandal case concerns carry forward posts
reserved under Article 16(4) for Scheduled castes, Scheduled Tribes and other
Backward Classes which has nothing to do in this case. though some of the
grounds will be available to argue the case on merits, that is no ground to
reopen the settled law laid by this court in earlier decision." We have
already noticed that the appellants were appointed on the relevant dates in
excess of their quota.
any appointments in excess to he quota prescribed for the promotees cannot
prejudice the rights of the direct recruits. The common judgment under appeal
is quite in accord with the law settled by this Court and the same does not
call for any interference.
result, the appeals fail and are dismissed accordingly with no order as to