Nani
Sha & Others Vs. State of
Arunachal Pradesh & Ors [2007] Insc 602 (16
May 2007)
H.K. Sema & V.S. Sirpurkar
CIVIL APPEAL NO. 2665 OF 2007 (Arising out of SLP (C) No.19542 of 2005) V.S.
SIRPURKAR, J.
1. Leave granted.
2. This appeal is a classic example of the internal fight between the direct
employees and the promoted employees in the matter of inter-se seniority.
3. The appeal has been filed by five appellants challenging the judgment of
the Division Bench of the Guwahati High Court whereby the judgment of the
learned Single Judge of the High Court was confirmed. The learned Single Judge
had allowed the writ petition filed by the respondents herein. In the writ
petition the respondents herein, who are the directly appointed Assistant
Conservator of Forests (hereinafter referred to as the "ACF" for
short) had challenged an order passed by the State of Arunachal Pradesh dated
8.6.2004 vide No.FOR 376/E(A)/2001/4901-61 granting retrospective effect
promotions to the appellants herein with effect from 2.11.1994.
With that retrospective effect the respondent nos.3 to 7 herein became
junior to the appellants since they were all appointed in the year 1996 after
direct examination to the post of ACF. The learned Judge found that giving such
retrospective effect would be illegal and on the concerned date they were not
even borne on the cadre of ACF and were only serving as Range Forest Officer.
He also found that in the unamended Rule 5 which provided for method of
Recruitment, there was no 50:50 quota for the direct recruits and the promotees
which quota came to be introduced only by way of an amendment effected to
Arunachal Pradesh Forest Rules vide notification No.FOR.391/E-A/90/32343 dated
24.9.1999 and as such even if the respondents herein were given more than 50%
posts in the cadre of ACF, it was permissible and as such the promotions made
of the appellants herein for the first time in the year 2001 could not be dated
back by giving retrospective effect from the year 1994.
4. In order to understand the controversy some facts would be necessary. All
the present appellants herein started their career in the post of Forest
Rangers and after their training in the Forest
Rangers College,
Kurseong, they were appointed as Forest Rangers with effect from 7.7.1984. The
post of Forest Rangers is the feeder post for the post of ACF. There are
Service Rules for governing the service conditions called Arunchal Pradesh
Forest Service Rules.
These Rules provide, inter alia, that a Forest Ranger would have to put in
five years of service before being promoted to the post of ACF.
In that way the appellants herein had become entitled for being considered
for promotion by 1989. They were, however, not promoted in the year 1989 and
were in fact promoted on 10.6.2002.
However, in the meantime the respondents herein were selected after the
competitive examination and were appointed in the year 1996.
Naturally, the respondents herein were senior to the appellants in the cadre
of ACF. The government on account of the representations made constituted
another Departmental Promotion Committee (hereinafter referred to as the
"DPC" for short) and the present appellants were awarded the notional
promotion with retrospective effect, i.e., from December, 1994. This order was
passed on 20th May, 2004.
Because of this order all the appellants would become senior to all the
directly appointed respondents and for this precise reason the said order came
to be challenged before the Guwahati High Court which challenge was accepted by
the learned Single Judge and the judgment of the learned Single Judge was
confirmed by the Division Bench which has necessitated the present appellants
to come before us.
5. Shri C.M. Nayar, Senior Advocate urged before us that the appointments of
the respondents herein were in excess of quota and, therefore, amounted to
fortuitous appointment without carrying the seniority with such appointments.
He painstakingly pointed out that all the appellants who were appointed in 1984
had unblemished service and, therefore, they had earned a right after five
years of service to be considered for the promotion to the post of ACF.
Unfortunately, there was no exercise on the part of the State Government to
constitute any DPC right from 1989 till 2002 when they were actually promoted.
It is pointed out by the learned Senior Counsel that it was for no fault of the
appellants that the promotions were not granted to them and had such DPC being
constituted in time as was expected under the administrative norms, they would
have been senior to the present respondents who were directly appointed only in
the year 1996. Carrying his arguments further, the learned counsel urges that
at any rate, the direct appointments made of the respondents in the year 1996
were bound to be held as fortuitous appointments as at the time when the
appointments were made, there were already more than 50% posts filled up by the
direct appointees. Learned counsel takes us to Rule 5 and points out that under
that Rule there was a clear quota of 50% in case of direct appointees while
remaining 50% was to go to the promotees. We have been shown the position of
the vacancies as occurring in 1996 from which the learned counsel buttresses
his arguments that direct appointees were occupying more than 50% posts out of the
total cadre posts of 54. According to the learned counsel only 27 posts could
have gone to the direct appointees, but on 1.1.1996 28 direct appointees were
already occupying the posts and as if that was not sufficient, five more
persons were brought in by way of direct appointments making the total figure
of the direct appointees to 33.
This, according to the appellants, was not permissible and, therefore, the
appointments of the respondents made on 1.7.1996 were bound to be held
fortuitous appointments not carrying any seniority with the appointment. It is
then pointed out that this position of over-crowding by the direct appointees
continued right till 2000 and even on the date when the appellants were
promoted there were 31 direct appointees as against 27 posts which could come
to their share. From this the learned counsel urges that it was only to allay
the grievance of the promotees that the State Government had taken a decision
to remove this disparity causing injustice to the promotees and, therefore,
their promotions were made retrospective with effect from 1992. Learned counsel
assailed both the judgments and argued that this position was not properly
viewed by both, the learned Single Judge and the learned Division Bench and,
therefore, both the judgments were rendered erroneous and were liable to be set
aside.
6. As against this Shri L. Nageshwara Rao, Senior Advocate pointed out that
under the Rules as they existed at the time of direct appointment of the
respondents, there was no 50:50 quota between the direct appointees and the
promotees. For this purpose he heavily relies on the language of Rule 5 which
is the relevant rule. He further points out that the said Rule 5 later one
underwent a change whereby a proviso was added thereto more particularly by
notification No.391/E-A/90/32343 dated 24.9.1999. Learned counsel points out
that it is for the first time that 50:50 quota was introduced in between the
direct appointees and the promotees. According to the learned counsel atleast
till the 50:50 quota was introduced, it was perfectly possible for the
government to fill up more than 50% vacancies from any group direct appointees or promotees. Learned
counsel further went on to say that in the year 1994, the year from which the
appellants have been given the seniority, they were not even borne in the cadre
and, therefore, they could not have claimed seniority over and above the direct
appointees who had already occupied the post in the year 1996 itself. Learned
counsel very fairly agreed that had there been a 50:50 quota, then there was no
question of the direct appointees overshooting the quota and in that event the
direct appointees would have had no case because they had clearly exceeded to
27 posts which would have been available to them under the Rules.
7. It will, therefore, have to be found as to whether there was a quota of
50:50 for the promotees and direct appointees and whether the direct appointees
had exceeded their quota on the day of their appointment.
8. For this purpose it would be worthwhile to see the language of Rule 5
before its amendment. Rule 5 before it was amended was as under:
"5. Method of Recruitment: Save as provided in Rule 17, appointment to
the service shall be made by the following methods, namely:
(a) 50% of the substantive vacancies which occur from time to time in the
authorized permanent strength of the service shall be filled by direct
recruitment in the manner specified in part IV of these rules, and (b) The
remaining such substantive vacancies shall be filled by selection in the manner
specified in Part V of the Rules from amongst:
i) Officers who substantively hold the posts of Forest Rangers and possess
the minimum qualification of High School or equivalent under the Government of
Arunachal Pradesh.
ii) Officers who may be considered for appointment to the service at its
initial constitution, though not actually appointed under Rule 7 and who
substantively hold any of the specified posts in the schedule or such other
posts connected with forestry as may be approved by the Government of Arunachal
Pradesh for the purpose of these rules.
Provided that nothing in this rules shall preclude the Governor from holding
a vacancy in abeyance or filling up on officiating basis in accordance with the
provisions of these Rules."
It is this Rule that the learned counsel for the appellants uses for in
support of his contention that there is 50% quota in the cadre. Shri Nageshwara
Rao points out that the Rule of 50% does not apply to the whole cadre of the
ACF but applies only to "substantive vacancies which occur from time to
time" in the authorized permanent strength of the service. Shri Nageshwara
Rao points out that from the language of Clause (a) it is very clear that there
is no mention of 50% of the cadre strength, it is only the vacancies which
occur from time to time, contemplated in the Rules. Learned counsel further
suggests that even in respect of the promotees the words "such substantive
vacancies" in Sub-Rule (b) would indicate only the substantive vacancies which
have occurred from time to time in the authorized permanent strength of service
and remained after the vacancies are filled up by direct appointees. Learned
counsel then points out that in the whole of the Rules as they existed before
the amendment, there is no mention of a fixed 50% quota for the direct
appointees and the promotees. To substantiate this argument our attention is
invited to the amended Rule 5. We find that all that is added by the amendment
is the proviso which is to the following effect:
"Provided that the posts actually filled by direct recruitment and
promotion in the Grade II, at any time should not exceed 50:50 ration in the
authorized permanent strength of Grade-II posts, further that, nothing in these
rules shall preclude the Government from holding a vacancy in the service in
abeyance of filling it on officiating basis in accordance with the provisions
of Part VIII of these Rules."
Learned counsel Shri Nair, however, tries to suggest that the aforementioned
addition of proviso is only by way of a clarification and, therefore, this Rule
should be viewed with retrospective effect and it should be viewed as if quota
was always there even earlier.
9. Considering the plain language of the unamended Rule there can be no
dispute that earlier what was contemplated by Rule 5 was only "substantive
vacancies which occur from time to time in the authorized permanent strength of
service". The Rule does not contemplate that there shall be a separate
quota for the two categories from out of the cadre strength. The condition of
the two categories having 50:50 strength came only by way of amendment.
When we see the plain language of the proviso that position becomes all the
more clear. Atleast from the plain language of unamended Rule 5 we are unable
to see any quota being there for the two categories much less in the ratio of
50:50. On this backdrop when we see the chart of vacancy position, it is
apparent that on 1.1.1996, out of 54 sanctioned posts 28 were already filled in
by direct recruits and 15 posts were occupied by the promotees. Thus there were
in all 43 posts which were occupied and 11 posts were vacant. It seems that
these 11 posts were to be filled and, therefore, 50% posts, namely, 5 posts as
per the unamended Rule 5 went to the direct recruits and were filled in on
1.7.1996. For some reasons which are beyond our imagination, the posts of
promotees were never filled and remained pending right from 1996 upto 2002. On
24.9.1999 when the amendments came, the position was that out of 54 posts 32
posts were occupied by the direct appointees while only 12 posts were filled in
by the promotees. It seems that ultimately in 2002 as many as 12 posts were
filled in by promotions and right upto 1.1.2004 the posts of the direct
appointees remained at 31 without adding even a single post obviously to honour
the quota introduced in 1999. The posts of the promotees which had dwindled
upto 9 then became 21 with effect from 3.4.2002. This was obvious because of
the promotion. There can be no dispute that the government took unnecessarily
long period to effect the promotions. Apparently, there is no reason for this
with the government. However, the fact remains that till 2002, the promotees
were never promoted and direct appointees were already working in the cadre on
the available posts right from 1996. Under such circumstances, if the seniority
of the direct appointees was honoured in comparison to the promotees, we do not
think there was any error committed by the learned Single Judge or the Division
Bench. This takes us to the question of retrospective effect of the Rule.
10. It was tried to be impressed upon by the learned counsel for the
appellant that Rule 5(a) would operate retrospectively as its nature was
clarificatory. It was tried to be further impressed that even the government
has treated, right from the beginning that there was a quota and it was only to
redress the injustice done to the promotees that the government passed the
impugned Resolution dated 20th May, 2004. Firstly, we must clarify that there
was no evidence put before us by the Government that it was all through
treating, even before 1999, that there was a 50:50 quota in between the
promotees and direct appointees. Such an evidence was bound to be put before
the High Court in the first instance which was not so put. The exercise done on
20th May, 2004 appears to be not a suo motu exercise on the part of the
government but on the basis of the representations made by the present
appellants. We can understand if the government had made this exercise of 20th
May, 2004 on its own, that would have given credence to the arguments that the
government had always been treating that there was a 50:50 quota in between the
direct appointees and the promotees but that did not happen and the government
was "persuaded" to hold another DPC on the basis of the
representations and of course the advise tendered by P&AR Department in
U.O. No.409 dated 21.10.2003. That document is not before us and we have no way
to find out as to whether it was put before the High Court to support an
argument that the government was always under the impression that there existed
a quota. On the other hand the DPC viewed that there were some posts which were
bound to be reserved for the Scheduled Tribes candidates and they were bound to
be treated as backlog vacancies to be filled up as per 100 points roster and it
is for this reason that the posts were to be filled up by the appellants. So
far so good, but we completely fail to understand that even when there were
backlog vacancies how was the government justified in giving a retrospective
effect from 2.11.1994 in four cases and from 31.12.1994 in favour of Shri T.
Tapi. There is no justification whatsoever of giving the retrospective effect.
We, therefore, endorse the view expressed by the High Court that there was no
necessity of giving the retrospective effect.
11. Reverting back to the effect of the proviso, we do not find anywhere any
such intention to apply the proviso with retrospective effect. In order to make
a provision applicable with retrospective effect, it has to be specifically
expressed in the provision. We do not find such an expression in the said
proviso. Nothing had stopped the government before amending the Rule to word it
specifically, making it retrospective. That was not done and we are not
prepared to hold that the Rule is retrospective. Secondly, we cannot
countenance the argument that the Rule has a clarificatory nature. The Rule,
for the first time, creates a quota and thus crystallizes the rights of the
direct appointees and the promotees which was not there earlier. It, therefore,
cannot be viewed as a clarificatory amendment. Again whether the amendment is
clarificatory or not would depend upon the language of the provision as also
the other Rules. We have examined the Rules which did not suggest that there
was any quota existing as such. On the other hand we see Rule 25 which is a
Rule regarding seniority and more particularly Rule 25(c). It is apparent from
the language of the Rule that the government thought otherwise.
Rule 25(c) is as under:
"The relative seniority of direct recruits and of promotees shall be
determined according the rotation of vacancies between direct recruits and
promotees which shall be based on the quotas of vacancies reserved for direct
recruitment and promotion under Rule 5".
This language suggests that the only quota that was contemplated was as per
Rule 5 which we have already explained in the earlier part of the judgment
which suggests the 50% quota only in the "substantive vacancies which
occurred from time to time" and not the whole vacancies in the cadre. We
are, therefore, unable to accept the argument of the learned counsel for the
appellants.
12. Therefore, one thing is certain that the appellants did not have right
to claim a retrospective seniority particularly over and above the respondents
who had been working in the post of ACF right from July, 1996.
13. This Court in a reported judgment in State of Uttranchal &
that the seniority is to be reckoned not from the day when the vacancy arose
but from the date on which the appointment is made to the post. There this
Court was interpreting Rules 17 and 21 of the U.P. Agriculture Group B Service
Rules, 1995 and Rule 8 of the U.P.
Government Servants Seniority Rules, 1991. This Court disapproved the stance
taken by the High Court that the directions should have been given not from the
date of appointment but with retrospective effect when the vacancy arose. The
following observations in para 34 are speaking and would close the issue:
"Another issue that deserves consideration is whether the year in which
the vacancy accrues can have any relevance for the purpose of determining the
seniority irrespective of the fact when the persons are recruited.
Here the respondent's contention is that since the vacancy arose in 1995096
he should be given promotion and seniority from that year and not from 1999,
when his actual appointment letter was issued by the appellant.
This cannot be allowed as no retrospective effect can be given to the order
of appointment order under the Rules nor is such contention reasonable to
normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik
vs. State of Orissa [(1998) 4 SCC 456]". (Emphasis Supplied)
14. Lastly, the High Court has specifically rejected the claim of the
appellants on another ground, namely, that the appellants were not borne in the
cadre of the ACF on the date from which they have been given the seniority. We
are in complete agreement with the High Court, particularly in view of the
decision of this Court reported in State of Bihar & Others vs. Akhouri
Sachindra Nath [(1991) Supp.
1 SCC 334] which decision was reiterated in the case of State of want to
burden this judgment with further reported decisions.
However, the same view has been taken in another reported decision of this
Court in Uttranchal Forest Rangers' Asson. (Direct Recruit) paragraph 18 this
Court has taken a view that no retrospective promotion or seniority can be
granted from a date when an employee has not even been borne in the cadre so as
to be adversely affecting those who were appointed validly in the meantime.
15. There is still one another reason for our concurring with the High
Court's judgments. There cannot be any dispute that all through right from 1996
when the respondents were appointed till 2002, the appellants were working
under them in capacity of the Range Forest Officers, the appellants came in
those posts and started exercising the powers and duties of the post of ACF only
from 2002. It would be, therefore, very unfair to allow the appellants to steal
a march over the direct appointees under whom they worked practically for eight
years. On this ground we concur with the High Court that at this point of time
there would be no justification in upsetting the whole balance.
16. We, therefore, find no force in the appeal and dismiss the same but
without any orders as to costs.
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