Prafulla Kumar Swain Etc. Etc. v. Prakash Chandra Misra and Ors.

Mr. Shanti Bhushan, learned cousel appearing for the first respon- dent would submit that recruitment is different from appointment. The definition of the service is contained under Rule 3( e) which states "service" means Orissa Forest Service Class II. The service consists of Officers of Class II who are designated as Assistant Conservator of Forests. Rule 5(c) talks of recruitment to Class II. In sub-rule (a) a reference is made to Regulation. What is contemplated hereunder is nothing more than the competitive examination prescribed under Regulation. Therefore, Regula- tion 12 cannot be pressed into service. When an officer is recruited to Class II Service it does not mean that only from the date of appointment his seniority is to be reckoned. The very fact that his recruitment to the service is enough. The argument of the other side that the period of training will have to be excluded merely because both the direct recruits as well as the promotees undergo probation is untenable. The question is, whether the direct recruits who are definitely superior could be pushed lower down to the promotees. In Service Law the direct recruits are always treat~d on a D better footing than the promotees. Even though the relevant years of recruitment and promotion of - .cl. persons involved are essentially of the years 1979 to 1984, yet it is 1984 , -· """'-· Rules which will govern. E Rule 24 of the 1984 Rules contains the repeal and saving clauses. That says that all the officers who were appointed prior to the repeal shall be deemed to have been appointed under the provisions of 1984 Rules. If that be so, the aforesaid Explanation to Rule 16 must apply. Thus it is clear as on today the seniority by the 1984 Rules. The same has clearly provided F that the date of appointment of direct recruits for the purposes of seniority will be deemed to be 2 years prior to the date of appointment to a working post. Since the normal period of training is 2 years this cannot but mean that the date of appointment of direct recruits for the purposes of seniority will be the date of selection. If the seniority is not a vested right it is G well-open to the Government to alter the same by making a departure from 1959 and providing for the same in the amended 1984 Rules. Learned counsel draws our attention to Indian Forest Service (Ap­ pointment by Promotion) Regulations of 1966. In the said Regulations, Regulation 5 in its Explanation II states that in computing the period of H 250 .SUPREME COURT REPORTS [1993) 1 S.C.R. A continuous service the period of training which an officer had undergone "'-. _. is to be included. If that is the intention for Grade I Service, certainly a different intention cannot be spelt out under the 1959 Rules for Grade II Service. This is also evident when the 1984 Rules are looked at. There the rules clearly lay down in Rules 16 in its Explanation that the training period B is not to be excluded. · When rules specifically prescribe the quota as 2/3rd and l/3rd the Government cannot wriggle out of the situation that a saving provision had been made which is factually not so in this case. For this purpose, the Government has relied upo.n the proceedings held on 5.1.80 and 7.1.80. The C proceedings of Departmental Promotion Committee will not constitute the Government order. All Government orders must be issued under the signature of the Minister according to the Rules of Business. In the present case, no such order of the Minister regarding the alteration of quota is produced. The statutory rules lay down a clear legislative policy with regard D to fixation of quota so that the brightest talent be made available for the service. As to what would be the consequence of violating a statutory rule has ·come to be laid down in Keshav Chandra Joshi and Ors. v. Union of India, [1990) Supp. 2 SCR 573 at page 586. That ratio squarely applies to the facts of the case. E The point relating to !aches was never argued before. the Tribunal. Therefore, the appellant cannot be allowed to argue at this stage. We will now proceed to set out the necessary factual background. The Orissa Public Service Commission through an advertisement dated F 8.10.64 invited applications froni open market for admission of candidates to a competitive examination for selection to the posts of Orissa Forest ~ .. Service Class II service. 18 candidates were selected. They were sent for training at Indian Forest College, Dehradun during the year 1965-67. Only on successful completion of the training they could be appointed to Class G II Service. One of the candidates, who was successful in completion of training and who received the posting order '1:33/67 came forward with a writ petition before the Orissa High Court that he had been assigned in the list of gradation a rank junior to the promotees who were confirmed by Service Commission after the recruitment of the petitioner. The scope of 1959 Rules came up for consideration and the High Court concluded H that the recruitment to Class II Service was complete only after successful ! , PRAFULLA SWAIN v. PRAKASH MISRA [MOHAN, J.) 251 completion of two years' training in the Forest College. Relief was granted A on that basis. That came up in appeal to this Court in Civil Appeal Nos. 2051-52 of 1974 State of Orissa v. Manoranjan Rath & Ors. By an order dated 7th of January, 1988, finding that there was no ground to interfere with the judgment of the High Court, the appeals came to be dismissed. While the matter stood thus one of the directly recrujted officers (Prakash Chandra Misra, respondent No.l) filed a petition before the Tribunal challenging the seniority. He contended that the promotees who were promoted in the year 1981- 82 ought to have been assigned a place lower than him as per recruitment .rules. Two main contentions were: 1. His services should be reckoned from the date of recruitment itself C and not from the date of actual appointment. Therefore, the exclusion of the period of two years' training for the purposes of reckoning the seniority was illegal. 2. The promotees had been appointed in excess of the quota which D the rules had prescribed. There is no specific order of Government provid- ing otherwise. The Tribunal accepted these contentions and held that the petitoner before it being a direct recruit of the year 1979 must be treated as such and had to be confirmed and promoted on the basis of being a direct recruit of the year 1979. This should be done within the 2/3rd quota for direct recruits. Accordingly the petition was allowed. It is under these circumstan­ ces, special leave petitions have come to be preferred. Having regard to the arguments two points arise for our determination: ( 1) Whether the direct recruits are to be considered as recruited in the year in which they were selected by the Service Commission and sent for training into the Forest College or in the year in which they were actually appointed to a working post on completion of training? (2) Whether there was a quota fixed for promotees in the Orissa G Forest Service during the relevant years . .,...__ Even at the outset, we may point out that the Tribunal has grossly erred in holding that the Orissa Service Class II Recruitment Rules of 1959 are mere administrative instructions. On the contrary, these rules were framed under the proviso to Article 309 of the Constitution and they are H / A statutory in character. Section 3( e) of 1959 Rules says "Service' means the Orissa Forest Service Class II. Rule 5 reads as under: "5. (1) Recruitment to Class II service shall be made - (a) by direct recruitment on the result of competitive examina­ tion as per Regulation-I appended to th~ rule; (b) by promotion as per t~e Regulation II appended to this rule governing promotions to the Orissa Forest Service, Class II; (2) Government shall decide from time to time the number of vacancies in class II Service to be filled by direct recruitment and by promotion. (3) Save as otherwise decided by Government, number of posts of the service filled up by promotion shall not exceed one-third of the total number of such posts in the cadre." Rule 9 is as follows: "9( a) When officers are recruited by promotion and by direct recruitment during the sanie year the directly recruited mem­ bers shall be considered senior to the promoted members irrespective of their dates of appointment. (b) In case of promotion, seniority may be determined in accordance with the positions the promoted officers held in the recommendation of Public Service Commission made accord­ ing to merit. ( c) In case of direct recruitment, seniority may be determined according to the achievements in the examination in the Forest College." Besides these rules there are also Regulations dealing with direct recruitment. It may be stated that the Regulations prescribe the condition of elegibility (Regulation 1(2)), educational qualification (Regulation 1(6)), H written test by means of a competitive examination (Regulation I 8(a)) and .. - ·""-. PRAFULLA SWAIN v. PRAKASH MISRA [MOHAN, J.] 253 a viva voce test. The candidates are to be summoned for viva voce test on A securing the minimum qualifying marks prescribed by the Commission. Thereafter the Commission prepares a list of successful candidates provided they are found fit in the physical test as prescribed under Regula- tion 1(5). The list of successful candidates is to be forwarded to the Government for approval. Regulation 12 is important for our purposes. Under that Regulation the finally selected candidates are required to undergo two years training. During the period of pendency a consolidated monthly allowance of Rs. 150 as stipend is paid. Under clause (b) of that Regulation he is required to execute a bond provided for in Appendix A. Regulation 12{c) in unmistak- C able terms says the period of training will not count as service under Govern­ ment. Such service will count only from the date of appointment to the service after successful completion of the course of training. {Emphasis supplied). We must give full meaning and effect to this Regulation. At this stage, we will proceed to decide as to the meaning and effect D of the words 11 recruitment1 1 and "appointment". The term 11 recruitment1 1 connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction the word 11 appointment" means an actual act of posting a person to a particular office. E Recruitment is just an initial process. That may lead to eventual appointment in the service. But, that cannot tantamount to an appointment. No doubt, Rule 5 talks of recruitment to Class II Service. We consider these are two sources of recruitment. Nowhere in the Recruitment Rules of 1959 it is specified that the services of a direct recruit under the F Government shall be reckoned from the date of selection in the competitive examination. On the contrary, Regulation 12{c) is very clear that the period of training is not lo be reckoned as Government service. It is admitted before us that after the successful completion of training when the appoint­ ment order is issued the direct recruits are put' on probation. Similar is in G the case of the promotees. Both of them undergo probation. Therefore, in the light of these provisions it is not possible for us to accept the contention advanced on behalf of the direct recruits that their seniority must be reckoned from the date of their recruitment. This is why Mr. Shanti Bhushan, learned counsel for the direct H 254 SUPREME COURT REPORTS (1993) 1 S.C.R. A recruits, respondents, would urge that 1984 Rules would govern. Rule 16 in Explanation provides thus: 'Explanation - For the purpose of clause (a), the year of appointment of direct recruits shall be deemed to be the year arrived at after deducting two years from the date of successful completion of the training in the Forest College.' He would urge that in view of Rule 24 all the appointments must be deemed to have been made under these Rules. Rule 24 reads thus: '24. All rules and orders corresponding to these rules and in force immediately before the commencement of these rules are hereby repealed: Provided that nothing in these rules shall be construed as affecting or invalidating the appointments already made or orders issued in accordance with the provisions of any rules or orders in force immediately before the commencement of these rules and that all such appointments and orders shall continue in force and shall, as far as may be, be deemed to have been made and issued under the appropriate provisions of these rules: Provided further that Government may, by order, direct that any of the provisions of these rules shall not apply to the Officers already appointed under the rules and orders in force immediately before the commencement of these rules or shall apply to them with such modifications as the Government may specify in that order." Therefore, according to him, the benefit of Explanation to Rule 16 quoted above musi apply. We find it impossible to accept this contention G for the following reasons: · i. Since the appointments in question have been made under 1959 Rules, 1984 Rules will be inapplicable. 2. The 1984 Rules came into force only when they were published in H the Official Gazette on December 21, 1984. \ , PRAFULLA SWAIN v. PRAKASH MISRA [MOH~, J.] 255 3. Explanation under Rule 16 is a substantive provision. Therefore, A ~ it cannot be retrospective. ·~ .. -: " 4. As regards Rule 24, the proviso clearly states that the Rules cannot be construed as affecting or invalidating the appointments already made. Therefore, if any right has. been acquired or any privilege had ac· B crued that would remain unaltered. Therefore, these appointments which are governed by the 1959 Rules will continue notwithstanding the repeal. Clauses (a) and (e) of Section 6 ofthe General Clauses Act, ;1897 also point this positiQI!~ '6. Effect, of repeal: Where this Act, or any (Central Act) or C Regulation made after the comnieneemedt of this Act, repeaIS any enactment hitherto made or-hereafter to be made, then, unless a different intention appears, the repe31 shall not • (a) revive anything not in· force or existing at the time at which D the repeal takes effect; or (b) ..... (c) ..... (d) ..... (e) effect 'any investigation, legal proceeding or remedy. in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punbishment as aforesaid.' Coming to the deeming clause, that creates a legal fiction; the Court is to ascertain for what purpose the fiction is created. In Justice G.P. Singh Principles of Statutory Interpretation (Fourth Edition 1988) at page 208 it is stated thus: 'As was observed by James, LJ. : 'When a statute enacts G that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what person the statutory fiction is to be resorted to'. 'When a legal fiction is created', stated S.R. Das, J. 'for what purposes, one is led to H 256 SUPREME COURT REPORTS [1993) 1 S.C.R. ask at once, is it so created?" Therefo!e, by the operation of deeming clause it only enables ap­ pointments made under 1959 Rules to be continued •mder 1984 Rules. Certainly, by the repeal of 1959 Rules it cannot mean all those appoint­ ments cease. Nor again, the substantive provision of Rule 16, as stated above. Would govern. Therefore, Rule 24 has no application. Thus, we conclude that the seniority of direct recruits will have to be reckoned only from the date of appointment and not from the date of recruitment. The gradation list which was impugned by the first respondent before C the Tribunal was prepared in purs•1ance of the order of this Court read with the aforementioned judgment of the Orissa High Court and this is so stated in a letter dated 4th January, 1989 written by the Deputy Secretary to the Government of Orissa, Forest, Fisheries and Animal Hisbandry Department, Bhubaneshwar to the Principal Chief Conservator of Forest, Orissa, Bhubaneshwar (Annexure-II to the Special Leave Petition in S.L.P. D (C) No. 1604 of 1992). That this gradation list had been framed upon the aforesaid basis also does not appear to have been brought to the attention of the tribunal. The gradation list has been in operation over several years. We see no reason to unsettle the settled position. In this behalf we draw support from the judgment of this Court in Direct Recruit Class-II Engineering Officers' Association v. State of Maharashtra and others., [1990) 2 SCC 715. We may also note that though the same question was before this Court a little before the petition was made by the first respondent before the Tribunal, no effort was made by the first respondent to intervene and place before this Court his point of view. It is inconceivable that he would not have known that the same question was before this Court. Turning to the quota rule the records reveal that the Government had clearly taken a decision to increase the number of posts to be filled up by promotion in excess of the 1/3rd of total posts in the cadre on G administrative grounds connected with nationalisation of Kendu Leaf Trade in 1972-73 in the interest of public due to non-availability of direct candidates trained in the Indian Forest College, Dehradun. It is not correct to say that Government have decided that the quota of direct recruitment which will be encroached upon by the promotees will be released as and H when direct recruits are available. In fact, it was decided that the 4 direct PRAFULLA SWAIN v. PRAKASH MISRA [MOHAN, J.] 257 candidates who were by then under diploma course Training in forestry at A / Dehradun in the event of their coming out successful during 1974 from the training College may be appointed and in consequence, the junior most promotee officers who were appointed on ad hoc basis as aforesaid pend- ing concurrence of Orissa Public Service Commission will have to be reverted to make room for them. No promotion to Orissa Forest Service B Class II could be made on regular basis without obtaining concurrence of I the Orissa Public Service Commission as per Clause 2(h) of Regulation II ~ appended to the Orissa Forest Class II Recruitment Rules, 1959. In view of the urgency to implement the Kendu Leaf Scheme in 1973, 39 Forest Rangers were appointed to Class II Forest Service on an 'ad hoc' basis for a period of six months or till concurrence of the Commiss;on is received c for their final appointment. The 39 Forest Ranger had already been promoted to Orissa Forest Service Class II on regular basis on the recom- mendation of the Orissa Public Service Commission. In view of this, it is not correct to say in that the decision taken by Government for promoting ~ excess promot~es in the year 1972 was only to promote them on an ad hoc D basis within that quota. Hence, to contend that the promotees would obvi~usly have to yield to direct recruits who came in subsequently within their quota and would consequently also not be eligible for seniority above direct recruits, is untenable. . :\ We may also add that there were earlier proceedings in Transfer E Application No.147 of 1986 before the Orissa Administrative Tribunal. The decision was rendered on 3.7.87. SLP (C) No. 1624 of 1988 filed against the said decision was dismissed by this Court on 18.1.89. There was also an application, OJ.C. No. 588 of 1972 before the Orissa High Court in Manoranjan Rath v. State of Orissa and others. The decision was rendered F on 10.6.74. Against the said decision Civil Appeal Nos. 2051-52 of 1974 _._ were preferred to this Court which were dismissed on 7.1.88. The Tribunal in the above judgment had held on pentsa/ of the departmental file that the Government had taken decision to increase the number of posts to be filled up by promotion on administrative grounds. This was necessitated because G of the nationalisation of Kendu Leaf Trade. Action to fill up the posts by promotion of .Forest Rangers in excess of 1/3rd of the total posts in the cadre was taken in pursuance of the decision of the Government. Though +-~ the actual decision of the Government is not produced before us yet the proceedings of the meetings of the Departmental Committee held on 5.1.80 and 7.1.80 to select Forest Rangers suitable for promotion took note of H 258 SUPREME COURT REPORTS [1993) 1 S.C.R. A Rule 5(3) which contains the saving clause. · "Save as otherwise decided by Government, number of posts of the service filled up by promotion shall not exceed one- third of the total number of such posts in the cadre." B These proceedings speak volumes. Tbe proceedings were given effect to by promotions. Such promotions in excess of the prescribed quota had · to be made since no more directly recruited candidates were available during that year. The Government did not want its work to be hampered by allowing the posts were to remain vacant. While seeking the concurrence C of Orissa Public Service Commission to the decision taken by the Departmental Committee held on 5.1.80 and 7.1.80, the proceedings of the Committee explain lhe circumstances under which the Government decision was taken. From this point of view, we find the decision in Keshav Chandra Joshi's case (supra) has no application here. Therefore, the promotions given in excess of 1/3rd quota are valid. There is no justification D to push down the promotees in seniority. The promotion in excess of the prescribed quota was necessitated by the exigencies and in the interest of the public. It is supported by a conscious decision of the Government which is permissible under Rule 5(3). Therefore, we reject the arguments ad­ vanced on behalf of the direct recruits in this regard. E A reference was made to the Indian Forest Service (Appointment by Promotion) Regulations, 1966, particularly Regulation 5. It is also urged that from the post of Class II, promotion is to be made to Class I. We are of the view that since the appointments in question are regulated under · Orissa Forest Service Class II Recruitment Rules, the said Regulations of F 1966. have no application. Further, as pointed out above, the Orissa Rules were framed under proviso to Article 309 of the Constitution of India and have statutory and binding force. Now comes the proverbial last straw on the camel's back. There have been !aches on the part of the direct recruits in seeking the remedy. Wben the list was published in 1985 nothing prevented them to approach earlier. This is the point to be put against them. That this position was known to the direct recruit (Prakash Chandra H Mishra) is clear from paragraph 18 of his petition before the Tribunal. It PRAFULLA SWAIN v. PRAKASH MISRA [MOHAN, J.] 259 reads thus. : A '16. Therefore, placement of Respondent Nos. 42 to 94 as per Civil List corrected upto 1982 published in the year 1985 by the State Government who are promotees from amongst the Forest Rangers in Subordinate Service to Class II Service as Assistant Conservator of Forests in the year 1980 when this applicant was B 1111dergoing training at Burnihat, Assam, is patently illegal and an act without jurisdiction by the State Government of Orissa.' (Emphasis supplied) We do not want to unsettle settled matters which will lead to several C complications. In view of the foregoing discussion, we set aside the judgment of the Tribunal. The appeals will stand allowed. However, there shall be no order as to costs. V.P.R. Appeals allowed.