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PETITIONER:

PRAFULLA KUMAR SWAIN ETC. ETC.

Vs.

RESPONDENT:

PRAKASH CHANDRA MISRA AND ORS.

DATE OF JUDGMENT18/01/1993

BENCH:

MOHAN, S. (J)

BENCH:

MOHAN, S. (J)

SHARMA, L.M. (CJ)

BHARUCHA S.P. (J)

CITATION:

1993 SCR (1) 241 1993 SCC Supl. (3) 181

JT 1993 (1) 360 1993 SCALE (1)162

ACT:

Orissa Forest Service Class II Recruitment Rules, 1959-Rules

5, 9, 16, 24 read with Regulation 12 of Regulation I-Direct

Recruit-2 years of training-Whether to count as service

under Government-"Recruitment" means whether "appointment"-

Seniority of direct recruits-Whether to be reckoned from the

date of recruitment.

Orissa Forest Service Class III Recruitment Rules, 1959-Rule

9-Posts of Assistant Conservators-Filling up by promotion

and recruitment-Promotions to promotees in excess of quota-

Whether justiciable.

Orissa Forest Service Class III Recruitment Rules, 1959-

Rules 16,24-Recruitment under 1959 Rules-Whether 1984 Rules

and/or Indian Forest Service (Appointment by Promotion)

Regulations, 1966 applicable.

Orissa Forest Service Class III Recruitment Rules, 1959-

Rules 5, 9-Recruitment in 1981-Gradation List of 1985-

Challenging in 1988-Whether proper.

HEADNOTE:

The Orissa Public Service Commission through an

advertisement dated 8.10.64 Invited applications for

admission of candidates to a competitive examination for

selection to the posts of Orissa Forest Service Class II

Service.

The 18 selected candidates were sent for training at the

Indian Forest College during the year 1965-67. One of the

candidates, who successfully completed the training was

appointed to Class 11 Service. He filed a writ petition in

the High Court, as he was assigned in the list of gradation

a rank junior to the promotees, who were confirmed by

Service Commission after his recruitment

The High Court held that the recruitment to class II Service

was complete only after successful completion of two years'

training in the Forest College. The appeals by special

leave flied against the High Courts

242

Judgment were dismissed by this Court.

In 1979, the respondent No. 1 (in all the present appeals)

was directly recruited to the Orissa State Forest Service

Class II by the State Commission. He was appointed as an

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Assistant Conservator of Forests, after his completion of

training for two years at the Forest Service College.

Respondent No. 1 moved the Administrative Tribunal

challenging the seniority of the Forest Rangers, who were

members of the Orissa Subordinate Forest Service and were

promoted as Assistant Conservators of Forests, when the

respondent was undergoing his training.

Respondent contended before the Tribunal that the seniority

of direct recruits vis-a-vis the promotees required to be

decided on the basis of the Orissa Forest Service Class II

Recruitment Rules, 1959; that his services should be

reckoned from the date of recruitment Itself and not from

the date of actual appointment; that the exclusion of the

period of two years' training from the purposes of reckoning

the seniority was illegal; and that the appointment of the

promotees in excess of the quota prescribed by the Rules and

in the absence of any specific order of Government providing

otherwise was illegal.

Allowing the petition, the Tribunal held that the respondent

No.1 (in the present appeals) was entitled to be treated as

a direct recruit of 1979 and he be confirmed and promoted on

being direct recruit of 1979 and his seniority to be fixed

on the basis of being a direct recruit of 1979 within the

2/3rd quota for direct recruits.

The present appeals by special leave were preferred by the

aggrieved parties against the judgment of the Tribunal.

The appellant in SLP (C) No. 1604 of 1992 submitted that the

respondent No.1 was selected for undergoing superior Forest

Service Course at the Forest Service College in 1979; that

having regard to the terminology of the order which stated,

"he was selected", it could not be held that he could lay a

claim to the post; that the Tribunal had gone wrong in its

interpretation of the rules that having held that both the

direct recruits as well as the promotees were to undergo

probation for a period of two years, the period of training

for the direct recruit could not count as service; that the

ratio of 2/3rd and 1/3rd between direct recruits

243

and promotees did not apply, if the Government provided

otherwise; that the Civil List corrected upto 1982 was

published in 1985; and that the judgment of the Tribunal

resulted in unsettling the settled matters, hence same to be

reversed.

The State adopted the arguments of the appellant in SLP (C)

No. 1604/92.

The respondent No.1 submitted that recruitment was different

from appointment; that when an officer was recruited to

Class 11 Service if did not mean that only from the date of

appointment his seniority was to be reckoned, that the

argument that the period of training to be excluded merely

because both the direct recruits as well as the promotees

undergo probation was untenable; that when rules

specifically prescribed the quota as 2/3rd and 1/3rd, the

Government could not wriggle out of the situation that a

saving provision was made which was factually not so in this

case; that the point relating to laches which was never

argued before the Tribunal, could not be raised before the

Court.

Allowing the appeals, this court,

HELD, 1.01. The term 'recruitment "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

'appointment' means an actual act of posting a person to a

particular office. [253E]

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1.02. Recruitment is just an initial process. 'Mat may

lead to eventual appointment in service. But, that cannot

tantamount to an appointment. No doubt, Rule 5 talks of

recruitment to Class 11 Service. [253E]

1.03. Nowhere in the Recruitment Rules of 1959 it is

specified that the services of a direct recruit under the

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 to be

reckoned as Government service. [253F]

1.04. Under Regulation 12 the finally selected

candidates are required to undergo two years training.

During the period of pendency & 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

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in Appendix A. Regulation 12 (c) in unmistakable terms says

the period of training will not count as service under

Government. Such service will count only from the date of

appointment to the service after successful completion of

the course of training. [253B-C]

1.05. After the successful completion of training when

the appointment order Is issued the direct recruits are put

on probation. Similar Is in the case of the promotees.

Both of them undergo probation. [253G]

1.06. The seniority of direct recruits will have to be

reckoned only from the date of appointment and not from

the date of recruitment. [253G]

2.01. 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

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. [256G]

2.02. 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

when direct recruits are available. [256H]

2.03. Hence, to contend that the promotees would

obviously 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. [257D]

2.04. ]Me promotions given in excess of 1/3rd quota are

valid. There is no justification to push down the promotees

in seniority. The promotion in excess of the prescribed

quota was necessitated by the exigencies and in the

intersest of the public. It is supported by a conscious

decision of the Government which is permissible under Rule

5(3). [258D]

Keshav Chandra Joshi and Ors. v. Union of India, [1990]

Supp. 2 SCR 573 at page 586, distinguished.

Direct Recruit Class II Engineering Officers Association and

Ors. v. State of Maharashtra and Ors., [1990] 2 SCR 900 at

page 938; SLP (C) No. 1624 of 1988 Disposed of on

18.01.89; CA. Nos. 2051-52 of 1974 Disposed of on 7.1.88,

referred to.

245

3.01. By the operation of deeming clause it only enables

appointments made under 1959 Rules to be continued under

1984 Rules. Certainly, by the repeal of 1959 Rules It

cannot mean all those appointments cease. Nor again, the

substantive provision of Rule 16 would govern. Therefore,

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Rule 24 has no application. [256A-B]

3.02. Since the appointments in question have been made

under 1959 Rules, 1984 Rules will be inapplicable. The 1984

Rules, came into force only when they were published in the

Official Gazette on December 21, 1984. Explanation under

Rule 16 is a substantive provision. Therefore, it cannot be

retrospective. As regards Rule 24, the proviso clearly

states that the Rules cannot be construed as affecting on

invalidating the appointments already made. Therefore, if

any right has been acquired or any privilege had accrued

that would remain unaltered. Therefore, these appointments

which are governed by the 1959 Rules will continue not-

withstanding the repeal. [254H, 255A-B]

3.03. Since the appointments in question are regulated

under Orissa Forest Service Class 11 Recruitment Rules, the

Indian Forest Service (Appointment by Promotion) Regulations

of 1966 have no application. The Orissa Rules were framed

under proviso to Article 309 of the Constitution of India

and have statutory and binding force. [258F]

G.P. Singh: Principles of Statutory Interpretation Fourth

Edition 1988, at page 208, referred to.

4.01. There have been laches on the part of the direct

recruits in seeking the remedy. When the list was published

in 1985 nothing prevented them to approach earlier. This is

the point to be put against them. [258G]

4.02. The gradation list has been in operation over several

years. There is no reason to unsettle the settled position.

[256E]

Direct Recruit Class II Engineering Officers' Association v.

State of Maharashtra and others, [1990] 2 SCC 715, referred

to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 185-187 of

1993.

From the Judgment and Order dated 5.8.1991 of the Orissa Ad-

ministrative Tribunal, Bhubaneshwar in O.A. No. 679 of 1988.

246

B.A. Mohanty, A Mariarputham, Mrs. Aruna Mathur, Raju Rama-

chandran and A.K. Panda for the Appellants.

Shanti Bhushan, Prashant Bhushan, P.N. Misra, P. Gour, R.P.

Wadhwani and C.N. Sreekumar for the Respondents.

The Judgment of the Court was delivered by

MOHAN, J. Leave granted in all the matters.

All these appeals can be dealt with under a common judgment

since they are directed against the judgment and order dated

August 5, 1991 passed by the Orissa Administrative Tribunal

Bhubaneshwar in Original Application No. 679 of 1988.

Prakash Chandra Misra (Respondent 1 in all these appeals)

was directly recruited to the Orissa State Forest Service

Class 11 by the Orissa Public Service Commission in the year

1979. After completion of training for two years at Forest

Service College, Burnihat, Assam he was appointed as an

Assistant Conservator of Forests. He moved the

Administrative Tribunal challenging the seniority of the

Forest Rangers who were members of Orissa Subordinate Forest

Service and were promoted as Assistant Conservator of

Forests, between his recruitment and the joining of service

after training. According to first respondent, the

promotees who were promoted in the years 1981 and 1982 ought

to have been assigned a place below him as per recruitment

rules. The seniority of direct recruits vis-a-vis the

promotees required to be decided on the basis of the Orissa

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Forest Service Class II Recruitment Rules, 1959.

It was further urged that he was recruited in the year 1979

through Public Service Commission. He had to undergo

training for two years and thereafter he was appointed in

the year 1981.

Therefore, the short question was whether the respondent was

to be assigned seniority from the year 1979 (the year of

recruitment) or from the year 1981 (the year of

appointment). The Tribunal observed that Rule 9(a) of 1959

Rules read with Rule 6 would point out that the promotee

officers were to be on probation for a period of two years

like the direct recruits. Such direct recruits were also

sent for training to the Forest Training College. The 1959

Rules used the word 'recruited', the 1984 Rules used the

word "appointed". These words must be assigned proper

meaning.

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Inasmuch as the direct recruits were to be treated as

seniors to promotees 'en bloc' the first respondent must be

treated as a recruit of 1979 and ought to be treated as

senior to promotees.

The next question that came up for consideration was as to

the application of quota rule. On this, the Tribunal held

that both in the 1959 Rules as well as in the 1984 Rules,

the promotees and direct recruits will be in the proportion

of 1/3rd and 2/3rd. In the present case, 1959 Rules being

applicable there was no doubt that promotees have

substantially encroached upon the quota for direct recruits.

In view of that, promotions which have been made more than

the quota prescribed in the rules have to be either adjusted

against future vacancies in the promotion quota or reverted.

Such promotions beyond the prescribed quota are illegal.

In view of these findings, the Tribunal held that the first

respondent was entitled to be treated (i) as a direct

recruit of 1979 and (ii) he shall be confirmed and promoted

on the basis of being direct recruit of 1979. His seniority

was to be fixed on the basis of being a direct recruit of

1979 within the 2/3rd quota for direct recruits. These

directions were to be implemented within six months from the

date of the order. On these terms, the petition of the

first respondent came to be allowed.

Aggrieved by this judgment, SLP (C) No. 615 of 1992 has come

to be preferred by Prafulla Kumar Swain, a promotee

(Respondent No. 91 before the Orissa Administrative

Tribunal).

SLP (Civil) No. 1604 of 1992 has come to be preferred by

Bijay Kishore Mohanty and 10 others (respondents before the

Orissa Administrative Tribunal).

The State has preferred SLP (C) No. 4186 of 1992.

Mr. Raiu Ramachandran, learned counsel for the appellant in

SLP (C) No. 1604 of 1992 would submit that the first

respondent was selected for undergoing superiod Forest

Service Course at the Forest Service College, Burnihat,

Assam in the year 1979. Having regard to the terminology of the order wh

ich says 'he was selected", it cannot be held

that he could lay a claim to the post. The Orissa Forest

Service Class II Recruitment Rules, 1959 govern the case in

question.

The Tribunal had gone wrong in its interpretation of the

various

248

rules. First of all, it is incorrect to hold that they are

merely administrative instructions. On the contrary, they

are rules framed under proviso to Article 309 of the

Constitution of India, as a result of which, they have

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statutory force. Having held that both the direct recruits

as well as the promotees undergo probation for a period of

two years, properly speaking, the period of training for the

direct recruits could not count as service. That is

precisely what is stated in clause (c) of Regulation 12. If

under the said Regulation the appointment to service is to

commence only after the successful completion of training

there is no justification whatever to conclude that the date

of recruitment could be the relevant date for the purposes

of reckoning the seniority. Recruitment in the submission

of the learned counsel would merely mean enlistment or

selection. That is why Regulation 13 says the "selected

candidates". Even Rules 9 has not been appreciated in its

proper perspective.

As regards the ratio of 2/3rd and 1/3rd between direct

recruits and promotees the relevant rule that is applicable

is Rule 5(3). That sub-rule contains a provision: "Save as

otherwise decided by Government". If, therefore, it has

been otherwise provided by the Government, this ratio of

2/3rd and 1/3rd does not apply. In other words, there is

overriding power vested in the Government. Hence, the ratio

is flexible and contemplates a departure whenever the

Government otherwise decides. Here again, the Tribunal has

gone wrong. In Direct Recruit Class II Engineering

Officers' Association and Ors. v. State of Maharashtra and

Ors., [1990] 2 SCR 900 at page 938 this Court has taken the

view that where the rules permit the authorities to relax

the provisions relating to the quota, ordinarily a

presumption should be raised that there was such relaxation

when there is a deviation from the quota rule. In any

event, the placement of Respondents 42 to 94 as per Civil

List corrected upto 1982 was published in the year 1985 by

the State Government. They are the promotees from amongst

the various Rangers in Subordinate Service Class 11 as

Assistant Conservator of Forests in 1980. This was at a

time when the first respondent was undergoing training at

Burnihat, Assam. If really, therefore, the gradation list

was published as early as 1985, there is absolutely no

justification for the first respondent to approach in the

year 1988. The judgment of the Tribunal has resulted in

unsettling the settled matters. For these reasons, it is

prayed that the order of the Tribunal may be reversed.

Mr. A.K. Panda, learned counsel for the State adopts the

arguments

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of Mr. Raju Ramchandran, learned counsel for the appellant.

Mr. Shanti Bhushan, learned counsel appearing for the

first respondent 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 11. The service consists of

Officers of Class 11 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, Regulation 12 cannot be pressed into

service. When an officer is recruited to Class 11 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

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could be pushed lower down to the promotees. In Service Law

the direct recruits are always treated on a better footing

than the promotees.

Even though the relevant years of recruitment and

promotion of persons involved are essentially of the years

1979 to 1984, yet it is 1984 Rules which will govern.

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 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 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 (Appointment by Promotion) Regulations of 1966. In

the said Regulations, Regulation 5 in its Explanation 11

states that in computing the period of

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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 11 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 is not to be excluded.

When rules specifically prescribe the quota as 1/3rd 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 upon the

proceedings held on 5.1.80 and 7.1.80. The 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 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.

The point relating to laches 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 8.10.64 invited applications from 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 11 Service.

One of the candidates who was successful in completion of

training and who received the posting order 233/67 came

forward with a writ petition before the Orissa High Court

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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 that the recruitment to Class II Service was

complete only after successful

251

completion of two years' training in the Forest College.

Relief was granted 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 recruited

officers (Prakash Chandra Misra, respondent No.1) 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 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 the rules had prescribed. There is no specific order

of Government providing otherwise.

The Tribunal accepted these contentions and held that the

petitioner 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 circumstances, 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 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 11

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

252

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 examination as per Regulation-I

appended to this rule;

(b)by promotion as per the Regulation 11

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

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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 same year

the directly recruited members 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 according 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 eligibility (Regulation 1(2)),

educational qualification (Regulation I(6)), written test by

means of a competitive examination (Regulation 18(a)) and

253

a viva voice test. The candidates are to be summoned for

viva voice test on 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 fist 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 unmistakable terms says the period of training will not

count as service under Government. 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 of the words "recruitment" and "appointment".

The term "recruitment" 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

"appointment" means an actual act of posting a person to a

particular office.

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 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 to be reckoned as Government service. It is admitted

before us that after the successful completion of training

when the appointment order is issued the direct recruits are

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put on probation. Similar is in 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

254

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 must apply. We find it impossible to

accept this contention for the following reasons:

1.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 the Official Gazette on December 21, 1984.

255

3. Explanation under Rule 16 is a substantive provision.

Therefore, 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 accrued 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 of the General Clauses Act, 1897 also point this

position:

6. Effect, of repeal: Where this Act, or

any (Central Act) or Regulation made after the

commencement of this Act, repeals any

enactment hitherto made, or hereafter to be

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made, then, unless a different intention

appears, the repeal shall not

(a) revive anything not in force or existing

at the time at which 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 punishment 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 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

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ask at once, is it so created?"

Therefore, by the operation of deeming clause it only

enables appointments made under 1959 Rules to be continued

under 1984 Rules. Certainly, by the repeal of 1959 Rules it

cannot mean all those appointments 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 the Tribunal was prepared in pursuance 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 Husbandry Department, Bhubaneshwar to the Principal

Chief Conservator of Forest, Orissa, Bhubaneshwar (Annexure-

II to the Special Leave Petition in S.L.P. (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 administrative

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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

when direct recruits are available. In fact, it was decided

that the 4 direct

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candidates who were by then under diploma course Training in

forestry at 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 whom were appointed on ad hoc basis as aforesaid

pending concurrence of Orissa Public Service Commission will

have to be reverted to make room for them. No promotion to

Orissa Forest Service Class 11 could be made on regular

basis without obtaining concurrence of the Orissa Public

Service Commission as per Clause 2(h) of Regulation 11

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 11

Forest Service on an 'ad hoc' basis for a period of six

months or till concurrence of the Commission is received for

their final appointment. The 39 Forest Ranger had already

been promoted to Orissa Forest Service Class 11 on regular

basis on the recommendation 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

promotees in the year 1972 was only to promote them on an ad

hoc basis within that quota. Hence, to contend that the

promotees would obviously 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 Application No.147 of 1986 before the Orissa

Administrative Tribunal. The decision was rendered on

3.7.87. SLP (C) No. 1624 of 1.988 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 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 perusal 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 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

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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."

These proceedings speak volumes. The proceedings were given

effect to by promotions. Such promotions in excess of the

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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 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 the

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 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 advanced on behalf of the

direct recruits in this regard.

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

11, promotion is to be made to Class 1. 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 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 laches on the part of the direct recruits in

seeking the remedy. When 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 Mishra) is clear from paragraph 18 of his petition

before the Tribunal. It

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reads thus. :

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

undergoing 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 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.

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