LPASW No.33/2019 Page 1 of 19

IN THE HIGH COURT OF JAMMU & KASHMIR AND

LADAKH AT SRINAGAR

Reserved on: 29.10.2024

Pronounced on: 21.11.2024

LPASW No.33/2019

ABHIJEET JOSHI & ORS ...APPELLANT(S)

Through: - Mr. Z. A. Shah, Sr. Advocate. With

Mr. A. Hanan, Advocate.

Vs.

UNION OF INDIA & OTHERS …RESPONDENT(S)

Through:- Mr. Tahir Majid Shamsi, DSGI.

Mr. Abdul Rashid Malik, Sr. AAG, with

Mr. Mohammad Younis Hafiz, Assisting Counsel.

Mr. Jahangir Iqbal Ganai, Sr. Adv. with

Ms. Mehnaz Rather, Advocate.

Ms. Insha Shakeel, Advocate, vice Mr. Shah Aamir, Advocate.

CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE

JUDGMENT

Per Sanjeev Kumar ‘J’

1) This appeal under Clause 12 of the Letters Patent is

filed by the appellants by leave of this Court granted vide

order dated 5

th April, 2019. The appellants are the

members of J&K Forest Gazetted Service constituted by the

Jammu and Kashmir Forest Service (Gazetted) Recruitment

Rules, 1970 [“State Forest Rules, 1970”]. They are

aggrieved and have assailed an order and judgment dated

12

th February, 2019 passed by a learned Single Judge of

this Court in SWP No.497/2013 titled “Rashid Yahya

Naqash & Ors. Vs. Union of India and Ors.”, whereby the

LPASW No.33/2019 Page 2 of 19

Writ Court has, while allowing the writ petition, directed

the official respondents to notify “State Forest Service” as

required in terms of Rule 2(g)(i) of the Indian Forest

(Recruitment) Rules, 1966 read with Regulation 5 of the

Indian Forest Service (Appointment by Promotion)

Regulations, 1966, and to consider the petitioners as

members of said Forest Service. The Writ Court has issued

further direction to the official respondents to prepare a list

of suitable officers for induction into Indian Forest Service

by promotion in accordance with Indian Forest Service

(Appointment by Promotion) Regulations, 1966 after

notification of State Forest Service’. The exercise has been

directed to be completed preferably within eight weeks from

the date copy of the order is served upon the official

respondents.

2) Before we advert to the grounds of challenge to the

impugned order and judgment urged by Mr. Z. A. Shah,

learned senior counsel appearing for the appellants, we

deem it appropriate to give brief resume of the factual

antecedents leading to the filing of this appeal.

3) Way back in the year 1970, the Governor of the then

State of Jammu and Kashmir, in exercise of powers

conferred by Proviso to Section 124 of the Constitution of

Jammu and Kashmir, issued SRO 359 dated 24

th July,

LPASW No.33/2019 Page 3 of 19

1970 constituting the Jammu and Kashmir Forest Gazetted

Service to be regulated by the State Forest Rules, 1970. As

per the Schedule appended to the State Forest Rules, 1970,

amongst others, the post of Assistant Wildlife Warden was

incorporated as Class-III category ‘C’ post. Later on, the

Schedule was amended/substituted in terms of notification

issued vide SRO 431, in terms whereof, the post of

Assistant Conservator of Forests and Assistant Wildlife

Warden were put in Class-III Category ‘B’ in the then pay

grade of Rs.470-850.

4) In order to implement the provisions of the J&K State

Wildlife (Protection) Act, 1978, sanction was accorded to re-

designation of the “Directorate of Game Preservation” as

“Directorate of Wildlife Protection”. This was done by the

official respondents vide Government Order No.132-FST of

1979 dated 13.08.1979. Subsequently, vide Government

Order No.89-ISM(WL) of 1985 dated 23.07.1985, seven

posts of Assistant Conservator of Forests in the Wildlife

Protection Department were created. The organizational

setup of the Wildlife Protection was undertaken in the year

1991 in terms of Government Order No.128-FST of 1991

dated 18.05.1991.

5) Pursuant to a selection process undertaken by the

J&K Public Service Commission and the recommendations

LPASW No.33/2019 Page 4 of 19

made by it, four of the private respondents were appointed

as Assistant Wildlife Warden in the Wildlife Protection

Department in the then pay scale of Rs.2125-3600/ vide

Government Order No.19-FSR of 1996 dated 11.01.1996.

On similar terms and conditions, other private respondents

also came to be appointed as Assistant Wildlife Warden in

the years 1997/2000. It needs to be taken note of that the

J&K Wildlife Gazetted Service was constituted by the J&K

Wildlife (Gazetted) Service Recruitment Rules, 1994 notified

vide SRO 158 of 1994. The private respondents , having

been appointed after the constitution of Wildlife Gazetted

Service and being members thereof, are governed by the

service conditions laid down in the Wildlife (Gazetted)

Service Recruitment Rules, 1994.

6) With the creation of Wildlife Gazetted Service and

taking out the posts of Assistant Wildlife Warden from the

State Forest Gazetted Rules, 1970, the private respondents,

who were denied the right of consideration for induction

into IFS and were otherwise deprived of avenues of

promotion, filed SWP No.497/2013 seeking, inter alia, a

Writ of Mandamus to declare the J&K Wildlife (Gazetted)

Service Recruitment Rules, 1994, as ultravires the

Constitution and also for a Writ of Mandamus to command

the official respondents to notify ‘State Forest Service’ as

LPASW No.33/2019 Page 5 of 19

mandated in terms of Rule 2(g)(i) of the Indian Forest

Service (Recruitment) Rules, 1966 read with Regulation 5 of

Indian Forest Service (Appointment by Promotion)

Regulations, 1966 and include the private respondents as

members of ‘State Forest Service’.

7) As can be seen, during the consideration of the

matter, Mr. Jahangir Iqbal Ganai, learned senior counsel

appearing for the private respondents, gave up the first

prayer with regard to constitutional validity of the Jammu

and Kashmir Wildlife (Gazetted) Service Recruitment

Rules, 1994, and restricted the petition to the issuance of

Writ of Mandamus to the official respondents to notify the

State Forest Service and include the private respondents

for the purpose of their induction into Indian Forest Service

under Indian Forest Service (Appointment by Promotion)

Regulations, 1966.

8) The writ petition was contested by the official

respondents, who, in their reply affidavit filed by the then

Principal Secretary to Government, Forest, Environment

and Ecology Department, submitted that the Department of

Wildlife Protection was created in the year 1982, which was

re-organized in the year 1991. The Government vide order

dated 23.07.1985, created seven posts Assistant

Conservator of Forest in the then pay scale of Rs.1000-

LPASW No.33/2019 Page 6 of 19

1560. The Recruitment Rules for the Wildlife Services were

notified in the year 1994 along with the Schedule of posts

which, inter alia, included 13 posts of Assistant Wildlife

Warden. It is submitted that right at the time of acceptance

of appointment as Assistant Wildlife Wardens in the year

1996, 1997 and 2000, the private respondents were aware

that there were no promotional avenues for the Assistant

Wildlife Wardens, yet they accepted the appointments with

their eyes wide open and, therefore, cannot be allowed to

turn around and raise their grievance against non-

availability of promotional avenues. It was clarified by the

official respondents that prior to the promulgation of

Wildlife Gazetted Service Recruitment Rules, the post of

Assistant Wildlife Warden, which was born on the Forest

Gazetted Service, was in the feeding category for the post of

Deputy Conservator of Forests. However, after the issuance

of Wildlife (Gazetted) Service Recruitment Rules, 1994, the

post of Assistant Wildlife Warden was included in the said

service which does not provide avenues for promotion. With

regard to notification in terms of Rule 2(g) of the Indian

Forest Service (Recruitment) Rules, 1996, read with

Regulation 5 of the Indian Forest Service (Appointment by

Promotion) Regulations, 1966, it is the stand taken by the

official respondents that till date, the Department has been

LPASW No.33/2019 Page 7 of 19

preparing the panel of the officers born on the J&K Forest

Gazetted Service for induction into IFS and the officers of

the rank of the Assistant Conservator of Forests and above

fulfilling the eligibility criteria are being inducted into IFS in

consultation with the Union Public Service Commission.

The J&K Wildlife Gazetted Service for the time being is not

the feeding service for IFS nor any such decision has been

taken so far.

9) The Writ Court, having regard to the arguments

addressed at Bar by the learned counsel appearing for the

parties with reference to the rule position, came to the

conclusion that constitution of ‘State Forest Service’, as

mandated by Rule 2(g)(i) of the Indian Forest Service

(Recruitment) Rules, 1966, is a condition precedent for

recommending eligible candidates for their appointment by

promotion to the Indian Forest Service under IFS

Regulations, 1966 and, accordingly, issued the directions,

which we have already alluded to hereinabove.

10) The appellants before us are aggrieved and have

challenged the impugned judgment, primarily, on the

ground that no Mandamus lies to direct the State to frame

the statutory service/recruitment rules, which is legislative

function of the State. It is argued that direction to

constitute State Forest Service would, in turn, mean a

LPASW No.33/2019 Page 8 of 19

direction to the State to frame the statutory Recruitment

Rules, for, the framing of statutory Recruitment Rules is

sine qua non for constitution of a service. The impugned

judgment is also challenged on the ground that the Writ

Court has not appreciated that cadre management,

determination of officers and class of officers who are

eligible for induction into IFS, is sole prerogative of the

Government and the Courts have no role in such policy

decisions. Whether or not the Wildlife Gazetted Service

should be got approved from the Central Government by

the Government of Union Territory in terms of Rule 2(g)(i) of

Indian Forest (Recruitment) Rules, 1966 should be best left

to be determined by the official respondents.

11) Per contra, stand of the private respondents is that the

mandate for notifying the State Forest Service in terms of

Rule 2(g)(i) of the Indian Forest (Recruitment) Rules, 1966,

is mandatory in nature and in case the official respondents

fail to perform their statutory duty cast upon them by Rule

2(g)(i), this Court can always, in the exercise of jurisdiction

under Article 226 of the Constitution of India, direct the

official respondents to fulfill the mandate of Rule 2(g)(i) and

constitute State Forest Service and this is exactly what has

been done by the Writ Court in terms of the order and

judgment impugned.

LPASW No.33/2019 Page 9 of 19

12) Both sides have relied upon several judgments on the

points canvassed by them during the course of arguments.

13) Having heard learned counsel for the parties and

perused the material on record, a short question that begs

determination in this appeal is as under:

“Whether the High Court, in the exercise

of its extraordinary writ jurisdiction vested

in it under Article 226 of the Constitution

of India, can direct the State to notify

‘State Forest Service’ as defined under

Rule 2(g)(i) of the Indian Forest Service

(Recruitment) Rules, 1966 [“the Rules of

1966”], which is, indisputably, sine qua

non for making appointment by promotion

in Indian Forest Service in terms of the

Indian Forest Service (Appointment by

Promotion) Regulations, 1966 [“the

Regulations of 1966”]?

14) The Indian Forest Service is constituted under the

Rules of 1966. Rule 8 of the Rules of 1966 lays down the

mode and manner in which recruitment to the service by

promotion is required to be made. Rule 8 reads thus:

“8. Recruitment by promotion.- (1) The Central

Government may, on the recommendations of the

State Government concerned and in consultation

with the Commission and in accordance with such

regulations as the Central Government may, after

consultation with the State Governments and the

Commission, from time to time, make, recruit to

the Service, persons by promotion from amongst

the substantive members of the State Forest

Service.

(2) Where a vacancy occurs in a State Cadre

which is to be filled under the provision of this

rule, the vacancy shall be filled by promotion of a

member of the State Forest Service.

(3) Where a vacancy occurs in a Joint Cadre

which is to be filled under the provision of this

LPASW No.33/2019 Page 10 of 19

rule, the vacancy shall, subject to any agreement

in this behalf, be filled by promotion of a member

of the State Forest Service of any of the State

constituting the group.”

15) From the reading of Rule 8(supra), it clearly transpires

that the competent authority to make appointment by

promotion to the Indian Forest Service is the Central

Government and the mode of recruitment, as laid down in

Clause (1) of Rule 8, is that the Central government may,

on the recommendations of the State Government

concerned and in consultation with the Union Public

Service Commission, make recruitment to the service by

promotion from amongst the substantive members of the

State Forest Service. For our purpose, it is sufficient to say

that it is only a member of the State Forest Service, who, as

per the Rules of 1966, is eligible to be appointed by

promotion to Indian Forest Service. The procedure for

making appointment by promotion to Indian Forest Service

is to be regulated by the Regulations, as may be framed by

the Central Government after consultation with the State

Government and Union Public Service Commission. The

‘State Forest Service’ is defined under Rule 2(g)(i) of the

Rules of 1966, which reads as under:-

“2(g) "State Forest Service" means:-

(i) any such service in a State, being a service

connected with forestry and the members thereof

having gazetted status, as the Central Government

may, in consultation with the State Government,

approve for the purpose of these rules.”

LPASW No.33/2019 Page 11 of 19

16) From a plain reading of the definition of ‘State Forest

Service’ reproduced hereinabove, it is crystal clear that the

‘State Forest Service’ for the purpose of appointment by

promotion in terms of Rule 8 of the Rules of 1966, would

mean any such service in a State which is connected with

forestry and the members thereof have gazetted status.

Such service in a State would become ‘State Forest Service’

for the purposes of Rules of 1966 only if the Central

Government in consultation with the State Government

approves it. For the sake of clarity, we would like to split

the definition of ‘State Forest Service’ as defined in Rule

2(g)(i) in the following manner:

A service in a State will be ‘State Forest

Service’ within the meaning of Rule

2(g)(i), if it fulfills the following

conditions:

(i) It should be a service in a State

connected with forestry;

(ii) The members of such service

should have gazetted status;

(iii) The Central Government must

approve it in consultation with the

State Government to be such

service for the purposes of Rules

of 1966.

17) Admittedly, in the instant case, no formal ‘State

Forest Service’ for the State of Jammu and Kashmir (now

the Union Territory of Jammu and Kashmir and Union

Territory of Ladakh) has been constituted in the manner

aforesaid. The stand of the State Government is that it is

LPASW No.33/2019 Page 12 of 19

only by way of a long-standing convention, the Government

has been recommending the officers having gazetted status

who are born on the J&K Forest Gazetted Service

constituted under the State Forest Rules of 1970.

18) Per contra, Mr. Shah, learned senior counsel, submits

that the stand of the State if taken to be correct on the face

of it, is clearly indicative of the fact that the ‘State Forest

Service’ for the purposes of Rules of 1966 shall be deemed

to have been created of the Gazetted Officers consisting of

State Forest Gazetted Service only.

19) We have our strong doubts as to whether ‘State Forest

Service’ in terms of Rule 2(g)(i) can be constituted otherwise

than in accordance with the pre-requisites laid down in

Rule 2(g)(i). At this point, we are reminded of a well settled

legal position that if a statute prescribes a particular mode

and manner for doing a thing, such thing should be done

in the prescribed manner or shall not be done at all. The

Hon’ble Supreme Court was confronted with somewhat

similar situation, though in a different context, in the case

of Gopal Singh vs. State Cadre Forest Officers

Association and others, (2007) 9 SCC 369. One of the

questions that arose for consideration in Gopal Singh’s

case was whether the words “may approve” is directory and

the ‘State Forest Service’ can come into existence even if

LPASW No.33/2019 Page 13 of 19

there is no approval of the Central Government as

mandated by Rule 2(g)(i). We would like to clarify that in

Gopal Singh’s case, the Hon’ble Supreme Court was

interpreting Rule 2(g)(ii), which now stands deleted vide

GSR 731(E) with effect from 31

st December, 1997. For the

purpose of discussion, Rule 2(g)(ii) was pari-materia with

Rule 2(g)(i) and Rule 4(1) of the Rules of 1966 as also the

Regulations of 1966. The Hon’ble Supreme Court

concluded thus:

“For this the learned counsel relies on the decision of this

Court in Land Acquisition Officer & Mandal Revenue Officer

vs. V. Narasaiah, wherein in para 14 it has been held that

"may be" means "may" or "may not be". In our opinion the

argument is clearly incorrect and would violate the language.

The language is plain and simple to mean that for any service

to be included in the State Forest Service would be firstly

required to be connected with forestry and secondly it has to

be approved by the Central Government for the purposes of

these Rules. If we give the meaning as is canvassed by the

learned counsel, then there would be no necessity of the

words "as may be approved by the Central Government for

the purpose of these Rules". We cannot accept the

interpretation. The ruling cited by the learned counsel is in

entirely different context. That was the case where the

question was as to whether the court could accept in evidence

a certified copy of the registered document under Section 51A

of the Act. The court simply held that this gave a discretion to

the concerned court to accept or not to accept such copies in

evidence. In our opinion there is no significance in the present

provision, i.e., Rule 2(g)(ii) of the words "as may be approved"

as is suggested by the learned counsel. On the other hand the

meaning is clearly discernible that there would have to be

approval by the Central Government in favour of any service

for being included in the State Forest Service. We, therefore,

reject the contention raised by the learned counsel.”

20) If we interpret Rule 2(g)(i) in the light of the law laid

down in Gopal Singh’s case, we find that the plain

language of Rule 2(g)(i) of the Rules of 1996 clearly suggests

that for any service of the State/Union Territory to be

LPASW No.33/2019 Page 14 of 19

included in the ‘State Forest Service’, it should be first

connected with the forestry and secondly, it must have the

approval of the Central Government granted in consultation

with the State/Union Territory Government concerned. The

approval by the Central Government is, thus, mandatory

and in the absence thereof, a State service though

connected with forestry cannot claim to be ‘State Forest

Service’ as defined in Rule 2(g)(i) for the purposes of Rule

1966.

21) Per contra, the submission of learned counsel for the

appellants, Mr. Shah, that the word ‘may’ used in Rule

2(g)(i) of the Rules of 1966 is directory in nature and it is

not incumbent upon the Central Government to necessarily

constitute a ‘State Forest Service’ for a particular State or

Union Territory, is an argument which can have relevance

if we read Rule 2(g)(i) in different context. While

constitution of ‘State Forest Service’ by the Central

Government in consultation with the concerned State or

Union Territory, as the case may be, may not be mandatory

but for induction into IFS of Gazetted members of any

service in the State connected with forestry, such service

must have the approval of the Central Government to be

granted in consultation with the State Government. There

could be no ‘State Forest Service’ for any State or Union

LPASW No.33/2019 Page 15 of 19

Territory without the approval of the Central Government.

The clear stand of the official respondents is that the State

Forest Gazetted Service constituted by the State Forest

Rules of 1970 is though a service connected with forestry

but does not have any formal approval from the Central

Government, as is mandated by Rule 2(g)(i) read with Rule

8 of the Rules of 1966.

22) This takes us to the next argument and rather the

star argument raised by Mr. Shah that no Mandamus

would lie to compel the State to do something which lies in

its discretion. He submits that the constitution of ‘State

Forest Service’ for a particular State or Union Territory

should be best left to the official respondents.

23) There could be no quarrel with the proposition

canvassed by Mr. Shah. The Writ Court, as we find from

the judgment impugned, was aware of this legal position

and yet directed the official respondents to notify ‘State

Forest Service’ as is required in terms of Rule 2(g)(i) of the

Rules of 1966. This, the Writ Court did by reading Rule

2(g)(i) of the Rules of 1966 along with Regulation 5 of the

Regulations of 1966. We are, however, of the opinion that

what is more relevant to appreciate in this regard is Section

3(1) of the All India Services Act, 1951, whereunder the

Central Government has framed the Indian Forest Service

LPASW No.33/2019 Page 16 of 19

(Cadre) Rules, 1966. Rule 3 of the said Rules mandates the

constitution for each State or group of States an Indian

Forest Service cadre. Rule 4 relates to the determination of

strength and composition of each cadre constituted under

Rule 3 to be determined by the Regulations made by the

Central Government. The Central Government has framed

Indian Forest Service (Fixation of Cadre Strength)

Regulations, 1966. J&K cadre and its strength is indicated

in clause (x) of the Schedule appended to Indian Forest

Service (Fixation of Cadre Strength) Regulations, 1966.

With a view to giving effect to the J&K cadre and the

number of posts allocated to it, it is necessary to have the

‘State Forest Service’ constituted in terms of Rule 2(g)(i). It

seems that the official respondents including the Union of

India, proceeded on the assumption that ‘State Forest

Gazetted Service’ constituted by the State Forest Rules of

1970, which perhaps during the earlier times was the only

service connected with forestry, had the approval of the

Central Government in terms of Rule 2(g)(i) of the Rules of

1966, to qualify to be the ‘State Forest Service’.

24) Viewed thus, we cannot leave the State of Jammu and

Kashmir (now Union Territory of Jammu and Kashmir and

Union Territory of Ladakh), without there being any ‘State

Forest Service’, for the constitution of ‘State Forest Service’

LPASW No.33/2019 Page 17 of 19

under Rule 2(g)(i) is sine qua non for supplying the

vacancies in the J&K cadre as it exists in the Schedule

appended to the Indian Forest Service (Fixation of Cadre

Strength) Regulations, 1966. We also cannot permit the

status quo to continue which permits the Gazetted Officers

born of the J&K Forest Gazetted Service constituted by the

State Forest Rules, 1970, only to take the benefit of

induction into Indian Forest Service. There could be other

services which are also connected with forestry and

deserve to be considered for induction along with Gazetted

officers of the State Forest Gazetted Service. We are aware

that this exercise has to be undertaken by the Union

Territory and the ultimate approval is to be granted by the

Central Government. There could be no Mandamus to the

State to include or exclude any service or a gazetted

member thereof into or from the ‘State Forest Service’ nor

do we intend to do so. Suffice it to say that a time has come

when the Union Territory must fulfill the mandate of Rule 8

read with Rule 2(g)(i) of the Rules of 1966 and to take

requisite steps to constitute ‘State Forest Service’

consisting of Gazetted Officers of different Gazetted

Services connected with forestry. It is only if the service so

constituted receives the approval of the Central

Government, the members of such service would become

LPASW No.33/2019 Page 18 of 19

entitled to be appointed by promotion to the Indian Forest

Service constituted under the Rules of 1966.

25) Viewed thus, we do not see any reason to find fault

with the judgment impugned passed by the Writ Court. We

only hasten to add that the requisite steps, as is directed

by the Writ Court, are required to be taken on a war

footing, else not only the appellants but other Gazetted

members serving in different services of Union Territory

connected with forestry, who may come within ‘State Forest

Service’ to be constituted in terms of the judgment of the

Writ Court, may suffer. We are told that Union Territory

has already undertaken requisite exercise for constitution

of ‘State Forest Service’ and Central Government is likely to

be approached for approval shortly. We expect the Union

Territory Government to be alive to the situation and would

proceed in the matter with the requisite promptitude.

26) While we have passingly held that apparently and in

view of the material on record as also having regard to the

stand of the official respondents, there was no validly

constituted ‘State Forest Service’ in the State of Jammu

and Kashmir (now the Union Territory of Jammu and

Kashmir and Union Territory of Ladakh), we make it clear

that appointments by promotion to Indian Forest Service

made so far in the absence of validly constituted ‘State

LPASW No.33/2019 Page 19 of 19

Forest Service’ shall remain valid and would not be called

in question on that score by anyone and for such purpose,

the ‘State Forest Service’ for the State of Jammu and

Kashmir shall be deemed to have been constituted upto the

date on which the judgment was delivered by the Writ

Court.

27) For the foregoing reasons, the appeal lacks merit and

the same is, accordingly, dismissed

(PUNEET GUPTA) (SANJEEV KUMAR)

JUDGE JUDGE

Srinagar,

21.11.2024

“Bhat Altaf-Secy”

Whether the order is reportable: Yes/No

Mohammad Altaf Bhat

I attest to the accuracy and

authenticity of this document

21.11.2024