Ashok Ram Parhad & Ors. v. the State of Maharashtra & Ors.
SANJAY KISHAN KAUL, J.
1. This is one more unending dispute arising between direct recruits
and promotees qua their inter se seniority. The post for which the
recruitment took place was the Assistant Conservato r of Forest
(hereinafter referred to as “ACF”). The method of recruit ment for the
said post was twofold – nomination (direct appointment) and promotion.
Recruits to ACF by promotion assume charge from the day they are
promoted to the said post and are not required to undergo two years of
ACF training and one year of field training. This is distinct from the
persons selected and appointed by nomination where such training is
compulsory.
2. The ACF post, in turn, is the feeder cadre to the po st of
Divisional Forest Officer (hereinafter referred to as “ DFO”). As per
Rule 5 of the Assistant Conservator of Forests in the Maharashtra Forest
Service, Group A (Junior Scale) (Recruitment) Rules, 1998 (hereinafter
referred to as the “1998 Rules”), appointment to the post of ACF shall
be in the ratio of 50:50 from these two sources.
3. The appellants before us were appointed to the post of AC F
through nomination in 2016. They had been recruited in 2014 and went
through a training. Respondent nos.4 to 9 were directly promoted to the
post of ACF in 2014.
Litigation History:
4. The Maharashtra Public Service Commission, respondent no.3,
issued an advertisement on 14.12.2012 to fill up a total of 33 post s of
905
ACF through Maharashtra Forest Service Examination, 20 12. The
appellants applied for the post, for which the selection list was published
on 13.06.2013. However, instead of issuing appointment orders appointing
the appellants on probation, respondent no.1 issued a letter dated
19.06.2013 informing the appellants that they will be sent to pre-
appointment training. The appellants claimed that their representation to
remedy the same remained unanswered.
5. The appellants thus filed an application before the Maharashtra
Administrative Tribunal at Mumbai (hereinafter refer red to as the
“Tribunal”) for declaration that their appointment as ACF be considered
from the date of commencement of the training and, that the training
period undergone by them be considered as period of service. They also
sought a direction for payment of salary as per the pay scale prescribed
for the post of ACF by considering the period of training as on probation/
duty.
6. The Tribunal, in terms of its order dated 03.02.2016, partly
allowed the application of the appellants. It was obs erved that the
recruitment rules for the post of ACF in the Maharashtra Forests Service
Class II (hereinafter referred to as “the 1965 Rules ”), which were
accompaniment to the Government Resolution dated 17.02.1965, inter
alia provided that a candidate was eligible for the post of ACF af ter
completing the prescribed course of training. However, these Rules were
not framed under Article 309 of the Constitution, and were never finalised.
Moreover, the draft rules had been superseded by the 1998 Rules , as
was also provided in the Preamble of 1998 Rules. The respondents’ plea
that the candidate would be eligible to be given regular pay scale after
successful completion of probation of three years, was turne d down
while opining that no reason was given for non-applicability of Rule 10
of the Maharashtra Civil Services (General Conditions of Services) Rules,
1981 (hereinafter referred to as the “1981 Rules”), whereby the person
shall draw minimum of time scale attached to the post to which he is
appointed. It was held that the appellants will be entitled to regular pay
after successful completion of probation, retrospectively from the date
of appointment, after deducting the amounts of ‘stipend’ already paid to
them. More significantly, it was declared that the appellants will be entitled
for appointment as ACF from the commencement of their trai ning on
01.02.2014.
ASHOK RAM PARHAD & ORS. v. THE STATE OF
MAHARASHTRA & ORS. [SANJAY KISHAN KAUL, J.]
7. The review application filed by respondent no.1 before the
Tribunal was dismissed on 16.09.2016 observing that whether the 1965
Rules were ‘draft’ or not had no bearing upon the out come of the
application, as the same were superseded by the 1998 Rules and all
issues raised in the review application had already been decided in the
original application.
8. The Government apparently accepted the aforesaid judgment
and thus passed a Resolution dated 14.08.2018, resolving that successful
completion of training period would be considered as regular service
from the date of inception of training for all service purp oses. The
Resolution also provided that the ACF appointed by nomination shall be
considered from the initial date of their training and the seniority will be
considered accordingly. Respondent nos. 4 to 9 herein were not part y
before the Tribunal but filed the writ petition before the High Court, both
against the appellants as well as against the Government of Maharashtra
(who had accepted the Tribunal’s judgment). These private respondents
claimed that they were appointed as Range Forest Officers i n 1987 to
1990 and were promoted to the post of ACF in 2014-2015. Their grievance
was that though they were promoted as ACF before the appellants herein,
they were shown junior to the appellants in the seniority list of ACF.
9. The case of respondent nos. 4 to 9 was based on the 1998
Rules; more specifically Rule 6 read with Rule 3(b) of the said Rules
and Proviso to Rule 2(B) of the Divisional Forest Officer (in Maharashtra
Forest Service, Class I) (Recruitment) Rules, 1984 (hereinafter referred
to as the “1984 Rules”). The said Rules are reproduced hereinbelow:
Rule 6 of the 1998 Rules
“A person appointed to the post by nomination shall be on probation
for a period of three years including two years of Ass istant
Conservator of Forests training course and 1 year field training as
decided by Principal Chief Conservator of Forests, Maharashtra
state, Nagpur” (sic.)
.... .... .... .... ....
Rule 3 (b) of the 1998 Rules
“3. Appointment to the post of Assistant Conservator of Forests
in the Maharashtra Forest Service, Group A (Junior Scale) shall
be made either –
xxxx xxxx xxxx xxxx xxxx
907
(b) by nomination from amongst candidates who are selected for
the Assistant Conservator of Forests training course, on the basis
of result of the competitive examination held by the commission
in accordance with the rules made in this behalf from time to time
and have successfully completed the training course.”
.... .... .... .... ....
Proviso to Rule 2 of 1984 Rules
“Provided that, in the case of persons directly appoi nted as
Assistant Conservator of Forests, the period spent on training at
the Government Forest Colleges and the period of probat ion,
including the extended period of probation, if any, shall not be
counted towards the requisite period of service.”
10. The significant aspect is the Proviso to Rule 2 of the 1984
Rules, which specifically stipulated that the period spent on training at
the Government Forest College by directly appointed ACF shall not be
counted towards the requisite period of service for purposes of
appointment to the cadre of DFO. It is this which is the bedrock of the
plea of the private respondents. The respondents also relied on a judgment
of this Court on R.S. Ajara & Ors. v. State of Gujarat 1 for the
proposition that an administrative resolution cannot take awa y a right
crystallized under the service rules.
11. On the other hand, the appellants’ case before the High Court
was that the Proviso to Rule 2 of 1984 Rules stood negated in view of
the Government Resolution dated 17.02.1997, wherein the condition of
probation period not being considered as period of experience had been
removed. It was submitted that Rule 6 of 1998 Rules specified that
persons appointed to the post by nomination shall be on probation f or
three years including two years of ACF training and one year of field
training. There was a marked distinction between 1965 Rules and 1998
Rules, as the former separately referred to recruitment and appointment
on probation, whereas the latter referred to appointment on pr obation
for three years, including the period of training. Relying on the same
judgment in the case of R.S. Ajara & Ors. 2, it was contended that the
training period prior to the appointment can also be considered for the
purposes of seniority.
1(1997) 3 SCC 641.
2 (supra).
ASHOK RAM PARHAD & ORS. v. THE STATE OF
MAHARASHTRA & ORS. [SANJAY KISHAN KAUL, J.]
Proceedings before the High Court
12. The High Court passed an interim order dated 18.04.2019
restraining the respondent authorities from issuing any promotion order
based on the judgment of the Tribunal dated 03.02.2016. The above
order was modified on 23.08.2019 by directing that any promotion made
would be subject to the outcome of the writ petition.
13. The matter was finally adjudicated by the High Court vide the
impugned judgment dated 23.04.2021. It was opined that respondent
nos. 4 to 9 would not be affected by the Tribunal’s order to the extent of
directing payment of salary and the pay scale to the appellants from the
date of initiation of the training period, as the respondents’ right would
only be affected while considering the seniority vis-à-vis promotion to
the post of DFO. Since Rule 3(b) read with Rule 6 of the 1998 Rules
shows that the period of training is considered as probation, the direction
of the Tribunal to pay salary to them as per the pay scale was found to
be reasonable.
14. However, on the aspect of fixation of seniority, it was opined
that the case of R.S. Ajara & Ors.3 was on a factual scenario where, in
the absence of rules regarding fixation of seniority of persons appointed
to ACF, a Government Resolution was issued suggesting determination
of seniority of directly recruited ACF in Gujarat State F orest Services
Class IIby taking into account the period of training. A referenc e was
also made to Prafulla Kumar Swain v. Prakash Chandra Misra &
Ors.,4 where Regulation 12(c) of the Orissa Forest Services Cla ss II
Recruitment Rules, 1959 provided that appointment to service is to
commence only after successful completion of training, and hence the
seniority would be reckoned from the date of appointment and not date
of recruitment. No such similar Government Resolution or Regulation
providing for fixation of seniority existed in the present matter.
15. The reasoning of the High Court was based on the 1984 Rules
which were framed under the Proviso to Article 309 of the Constitution
and have statutory force. On the other hand, the Government Resolution
dated 17.02.1997 was issued under Article 162 of the Constitution by
General Administration Department of Government of Maharashtra and
hence does not have an overriding effect upon the 1984 Rules. Wh ile
3 (Supra).
4 1993 Supp (3) SCC 181.
909
the said Resolution provides that probation period shall be consi dered
for purposes of experience, the 1984 Rules require the period spent on
probation and/or training to be excluded and only the p eriod after
appointment order on successful completion of training and/or probation
to be computed for purposes of promotion to the post of DFO.
16. Even on examination of 1998 Rules, the High Court came to
the same conclusion. Even though the said Rules prescribed fixation of
seniority amongst persons appointed by nomination, their seniority is not
fixed unless and until they pass the final examination of the ACF training
course. Thus, Rule 6 of 1998 Rules was found to be in consonance with
Rule 3(b) of the 1998 Rules where the Commission selects candidates
for the ACF training course and only after successful compl etion of
training and passing the competitive final examinati on, would the
candidates be issued the appointment order of ACF. It was obs erved
that Rule 7 of 1998 Rules only prescribed the methodology of fixation of
inter se seniority of the ACF appointed by nomination and does not
provide for fixation of seniority between those appointed by promotion
and nomination. The High Court thus held that the seniority of persons
selected for the post of ACF by nomination shall be counted from the
date of issuance of appointment order after successful complet ion of
training qua the person appointed to ACF by promotion.
Proceedings and Arguments before this Court :
17. On 30.06.2021 while issuing notice in the SLP, this Court
directed the position, as was prevalent prior to the impugned judgment,
to continue to operate for the time being. On 07.02.2022, it was submitted
that both sets of parties had not been promoted. Leave was granted on
02.02.2023.
18. On behalf of the appellants, an endeavour was made to trace
out the history of the creation of the post of the ACF which was formerly
a Class II post initially governed by the 1965 Rules. Appoin tment by
nomination was on probation for two years (extendable) from among
candidates who successfully completed the course of tr aining after
selection. Thus, training and probation were different terminologies and
training was not considered as appointment to the post. Howe ver, this
was stated to change with the adoption of the 1998 Rules c oming into
existence. In terms of Rules 3 and 6 of the 1998 Rules, the per iod of
training is now considered as period of probation and Rule 6 opens with
the expression “a person appointed to the post by nomination”, which is
ASHOK RAM PARHAD & ORS. v. THE STATE OF
MAHARASHTRA & ORS. [SANJAY KISHAN KAUL, J.]
described under Rule 3(b). The appointment by nomination prece des
the training and the expression “and have” under Rule 3(b) must not be
read as “after” to interpret Rule 3(b) as laying down an eligibility
qualification for appointment, or else the opening part of Rule 6 would
be rendered otiose. It was thus submitted that the High Court fell into an
error in coming to the conclusion that the appointment has to be made
only after completion of training course, as this expression was not found
in Rule 3(b). Reliance was placed on the judgment of this C ourt in
Commandant, 11th Battalion, A.P. Special Police (IR) v. B. Shankar
Naik5 to contend that training which was given cannot be rendere d
purposeless.
19. It was next contended that the Government Resolution dated
17.02.1997 was issued by the General Administrative De partment,
Maharashtra “by order and in the name of the Governor of Maharashtra”,
which is a deemed rule under Article 309 of the Constitution. The said
Resolution provides that service during probation should be considered
as experience for promotion. It is submitted that an incongruous situation
has arisen in view of the impugned judgment, where for the purposes of
salary, the appellants will be considered to be appointed as from date of
commencement of their training on 01.12.2014, but for selection, the
date of appointment is to be considered after appointment order issued
on successful completion of training.
20. The judgment in Prafulla Kumar Swain6 case was sought to
be distinguished on facts as Regulation 12(c) of the Orissa Forest Services
Class II Recruitment Rules, 1959 in the said judgment contemplated that
such service will count only from the date of appointment to the service
after successful completion of the course of training.
21. Reliance was also sought to be placed on 1981 Rules, more
specifically Rule 9(14) defining “duty” to include service as probationer
and a course of instructions or training authorized by or under the orders
of the Government. It was further submitted that the 2004 Rules did not
determine the date of appointment by nomination to the po st of ACF,
and the 1998 Rules also did not offer any guidance to determ ine the
inter se seniority between the promotees and direct recruits. It w as
stated that for determination of seniority, Rule 4 of the Maharashtra
Civil Services (Regulation of Seniority) Rules, 1982 would be applicable.
5 (2003) 5 SCC 580.
6 (supra)
911
22. On the other hand, the respondents defended the impugned
judgment to contend that there could be no ambiguity that the period of
training at the Government Forest Colleges and the period of probation
including the extended period of probation, if any, had to be necessarily
excluded for computing the period of service. The appointment orders
had been issued qua the appellants long after the respondents were
appointed as ACF. Further, Rule 2(a) read with Rules 3 and 7 of the
1998 Rules had clarified that the nominated ACF would be entitled for
an appointment only after completion of training. Training could not be a
mere formality and in Prafulla Kumar Swain 7 case, this Court while
applying similar rules held that recruitment is just an initial process and
may lead to eventual appointment in service.
23. The respondents further submitted that the endeavour of the
appellants to rely on Government Resolutions dated 25.01.1990,
29.07.1993 and 17.02.1997 and claim that Rule 2 of the 1984 Rules had
no relevance is fallacious as, Government Resolutions cannot override
the Rules. Further, the Resolutions neither speak about the promotion to
the post of DFO nor about how the seniority had to be reckoned for
ACF appointed by promotion or by nomination.
Conclusion:
24. We have considered the aforesaid rival submission s and
perused the impugned judgment.
25. In service jurisprudence, the service rules are liable to prevail.
There can be Government resolutions being in consonance wi th or
expounding the rules, but not in conflict with the same. On having set
forth this general proposition, we now examine the scenario of the Rules
as prevalent. If we turn to the statutory Rules framed under Article 309
of the Constitution, i.e., the 1984 Rules, Rule 2 refers to the appointment
to the post of the DFO and the same to be made by promotion f rom
amongst officers of the Maharashtra Forest Service and also by
appointment directly. The Proviso to Rule 2 of the 1984 Rules is
unambiguous and quite clear, i.e., the period spent on training at
Government Forest Colleges and other period of probation including
extended period of probation, if any, “shall not be counted towards the
requisite period of service.” Thus, what is envisag ed is that the
appointment is different from the recruitment process, which starts with
7 (supra).
ASHOK RAM PARHAD & ORS. v. THE STATE OF
MAHARASHTRA & ORS. [SANJAY KISHAN KAUL, J.]
the commencement of training. There can be possibilities of a candidate
not completing the training satisfactorily, thereby re sulting in the
candidate’s removal on probation. Such probation period can also be
extended to see whether a candidate improves in performance. (Hence,
even if the Government Resolution dated 25.01.1990 upgraded the post
of ACF from Class II to Class I, the Proviso to Rule 2 of the 1984 Rules
will continue to hold valid in determining the period of service.)
26. In the aforesaid context if we turn to the 1998 Rules, more
specifically Rule 3(b), the stipulation is that in case of a nomination, the
same is based on the result of the competitive examination held by the
Commission in accordance with the Rules and the candidate is required
to have “successfully completed the training course.” Rule 6 p rovides
for probation for a period of three years including two ye ars of ACF
training course and one year field training, as decided by the Principal
Chief Conservator of Forests. Thus, even reading of these extant Rules
makes the process for such direct recruitments quite clear. The Entrance
and Training Rules (Revised) for the State Forest Service Officers, 2004
(hereinafter referred to as the “2004 Rules”) are com prehensive in
character and set forth how the recruitment process will ta ke place.
27. We do believe that on behalf of the appellants there is over-
emphasis on the expression “person appointed to the post by nomination”
under Rule 6 of the 1998 Rules, without appreciating the context in which
such expression has been used. In contending that the interpre tation
given by the High Court would amount to making the opening par t of
Rule 6 otiose, what is lost sight of is that were the appellants’ plea to be
accepted, it would amount to making the Proviso to Rule 2 of the 1984
Rules otiose. The Government resolutions issued by the Administrative
Department cannot have the status of a statutory rule although such
resolutions may have their own effect.
28. It appears to us that the High Court’s view is the correct
view. The resolutions have been passed in the context that the person
who successfully completes the training effectively get s the monetary
compensation for his training period and is not deprived of the same.
This cannot amount to giving seniority from the date of initial recruitment
process to determine inter se seniority, when the Proviso to Rule 2 of
the 1984 Rules makes the date of appointment for direct recruits clear.
This is also in the background that while the direct appointees have no
913
experience in the field having been freshly recruited, the promotees have
been doing the task.
29. We fail to appreciate how the judgment in Prafulla Kumar
Swain8 case can be distinguished in this behalf merely by reason of the
regulation therein containing the expression “only”. It is not necessary
to refer to factual scenarios of different judgments and different rules or
general definition of what would amount to be on “duty”, when the rule
in question is quite clear. We say so even in the context of the judgment
in R.S. Ajara & Ors. 9 case as in any service, whether on the issue of
appointment or promotion, it is what the rule says, which wi ll matter.
One cannot derive general principles to decide such issu es. We do
appreciate that there can be scenarios where the rule specifically states
to the contra. But, in the present case, the very factum of Provis o to
Rule 2 of the 1984 Rules being inserted in the rule has to be assigned a
meaning, as otherwise, it would imply that the Proviso has become otiose.
It cannot be said that the Proviso is not to be read in the context of the
aspect of promotion.
30. We also find that Rules 3B and 6 of the 1988 Rules also leave
no ambiguity in this behalf and in fact read in consonance and the period
of probation has to be necessarily excluded from period of service. As
already stated, the grant of monetary benefit is a different aspec t.
31. On having come to the conclusion that the Governme nt
resolutions cannot override statutory rules, and the resolutions neit her
speaking about promotion to the post of DFO nor about seniority
conclusively, the Proviso would operate with full force.
32. We are thus of the clear view that the applicable Rules leave
no ambiguity in the matter and must prevail.
33. The result of the aforesaid is that the appeal is dismi ssed
leaving the parties to bear their own costs.
Divya Pandey Appeal dismissed.
(Assisted by : Roopanshi Virang, LCRA)
8 (supra).
9 (supra).
ASHOK RAM PARHAD & ORS. v. THE STATE OF
MAHARASHTRA & ORS. [SANJAY KISHAN KAUL, J.]