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PETITIONER:

STATE OF HIMACHAL PRADESH

Vs.

RESPONDENT:

SHRI J.L. SHARMA & ANOTHER

DATE OF JUDGMENT: 18/11/1997

BENCH:

G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

PATTANAIK. J.

Delay condoned.

Leave granted.

This appeal by special leave is directed against the

judgement of the Himachal Pradesh Administrative Tribunal,

Shimla dated 16th December, 1996 passed in O.A. No. 109 of

1987. The respondents are promoted officers to the Himachal

Pradesh Forest Service Class II. They filed an application

before the Tribunal for a direction that the direct recruits

to the Forest Service Class II are entitled to their

seniority form the date of their joining after completion of

the training and not from the date of their joining the

training at the Forest Research Institute in terms of the

Notification dated 30th April, 1986. The Tribunal by the

impugned judgment having granted that relief and having held

that the direct recruits are only entitled to get pay while

continuing under training in the Forest Research Institute

and will not get the benefit of seniority vis-a-vis the

promotes, the State has come up in appeal. The question that

arises for consideration, therefore, is whether a direct

recruit will be entitled to count the training period for

the purpose of his seniority in the service or not? The

answer to this question will depend upon the relevant

service rules which govern the conditions of service of the

employees in a particular state.

The learned counsel appearing for the appellant- state

contends that the Rules framed by the Governor under proviso

to Article 309 of the Constitution dealing with the

conditions of service in respect of Himachal Pradesh Forest

Service (Class II) is called the Himachal pradesh Forest

Service (Class II) recruitment promotion and certain

conditions of Service Rules, 1966. Rule (4) thereof provides

that the method of recruitment to the post in the said

service, age limit, qualifications and other matters

connected therewith shall be as specified in columns 5 to 18

of the said schedule. Thus the Schedule itself becomes a

part of the statutory recruitment rules determining the

conditions of service. By Notification dated 30th April,

1986 Schedules to the Rules were amended and in column (10)

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the following provision was inserted:

"The candidates selected for

training at Forest Research

Institute and colleges, Dehradun or

at any other place, shall while

undergoing the training be treated

as 'in service' candidates from the

date of joining the Institute.

During the period of training, the

candidates shall receive pay in the

lowest stage of the pay scale of

HPFS-II applicable to the service &

allowances admissible thereon

during the first year and at the

second stage of that scale during

the second year;

Provided that the second increment

shall be granted only when a direct

recruit has passed the prescribed

examination (s) from the concerned

Institute/college."

In view of the amended provisions of the Recruitment

Rules, the training period of a direct recruit will have to

be treated as ' in service', and therefore, the said period

necessarily will have to be counted for the purpose of

determining the seniority of a direct recruit in the

service. The Tribunal, according the learned counsel for the

appellant, was in error in interpreting the aforesaid

provision of the Rules. In support of his contention

reliance has been placed on a decision of this Court in the

case of R.S. Ajara & others v. State of Gujarat and others,

1997(3) SCC 641. Mr. Sharma, the learned counsel appearing

for the promotes - respondents, on the other hand contended

that the Rules read as a whole clearly indicate that the

amended provisions merely conferred a right upon a candidate

joining the Institute for training to get pay in the lowest

stage of the pay scale of Himachal pradesh Forest Service

Class II and the said training period cannot be counted for

the purpose of determining the seniority of the direct

recruits. According to the learned counsel, if column (10)

of the Rules is interpreted to mean that the training period

of a direct recruit also be counted for seniority then the

said interpretation will be repugnant to the several other

provisions of the Rules and it will not be possible to

harmonize the inconsistencies. The learned counsel further

contended that in view of the decision of this Court in

Prafulla Kumar Swain v. Prakash Chandra Misra and others,

1993 Supp (3) SCC 181, which is a three Judge Bench Judgment

of this Court, the training period of a direct recruit

cannot be counted for determining seniority of the direct

recruits and it merely specified the monetary emoluments

which a selected candidate would get during the period of

training. They do not become members of the service during

the period of training but merely treated as 'in service'.

This is also apparent from the letters issued by the State

Government to the successful candidates indicating that the

officers shall be on probation for two years on joining the

Department of the Forest Farming and Conservation after

completion of their S.F.S. course from their respective

batches commencing from 1.4. 1985, 1.11.1985 and 1.4.1986.

The learned counsel further urged that column (7) of the

Schedule clearly provides that before becoming a member of

the service, a direct recruit has to obtain certain

essential qualifications one of them being a Diploma course

at the Forest Research Institute and College, Dehradun or

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its equivalent. This being the position a direct recruit

cannot be said to be a member of the service even before

obtaining the essential qualifications, and therefore, the

training period cannot be counted for the purpose of

seniority. In this connection, the learned the judgment of

this Court in A.N. Sehgal and others v. Raje Ram sheoran and

others, 1992 Supp (1) SCC 304. It was further urged that

under the Rules even a direct recruit is required to undergo

probation for a period of two years, and therefore, until

successful completion of the said probation period there is

no appointment to the cadre and consequently no question of

counting the training period for the purpose of seniority.

In this view of the matter, the counsel urged that the

Tribunal rightly disposed of the Application by holding that

the training period of direct recruits will be treated only

for the purpose of getting pay and not for the purpose of

seniority.

In view of the rival submissions at the Bar the only

question that arises for consideration is as to what is the

correct interpretation of Column (10) of the Amended

Recruitment Rules which statutorily declares the period of

training to be 'in service'. Under the Constitution under

Article 309 the Legislature has the power to regulate the

recruitment, and conditions of service of persons

appointed, to public services and posts in connection with

the affaires of the Union or of any State. Under proviso to

Article 309 the president in case of Union and the Governor

in case of a state has been empowered to make rules

regulating the recruitment and conditions of service of

persons appointed until provision in that behalf is made by

or under an Act of the appropriate Legislature. In exercise

of such power under the proviso to Article 309 the

recruitment Rules to the Himachal Pradesh Forest Service

Class II has been made and the said Rules also has been

amended. The Amended rules, therefore, is a competent

legislation determining the service conditions of persons

recruited to the Himachal Pradesh Forest Service Class II.

In R.S. Ajara's case (supra), this Court considered the

question as to whether training period of a direct recruit

can be taken into account for fixation of seniority in the

cadre. In that case, the statutory Recruitment Rules did not

at all deal with the question of seniority of the officers

directly recruited and promotes. The Government, however,

passed a Resolution dated 31.1.1992 declaring therein that

the training period of directly recruited Assistant

conservators of Forests in Gujarat State Forest Service,

Class II, shall be taken into account for the purposes of

seniority. This Court considered the aforesaid resolution of

the Government and came to hold that since in the statutory

Recruitment Rules there is no provision for determination of

inter seniority between the promotes and direct recruits

and there being no provision which can be said to be

contrary to the aforesaid administrative resolution of the

State Government, the resolution must be held to be valid

and the period during which a direct recruit undergoes

training can be taken into account for determining his

seniority in the cadre of class II Forest Service. The case

in hand is a much stronger case than the case which was for

consideration before this court in R.S. Ajara since in the

present case the statutory Recruitment Rules itself

contained the stipulation that the training period shall be

treated to be 'in service'. We are unable to accept the

interpretation given by the Tribunal to the amended

provisions of column (10) of the Rules to the effect that

the training period of direct recruits will be treated only

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for the purpose of getting pay and not for the purpose of

seniority. If really the legislative intent would have been

to grant pay to the candidates while on training then it

would not have been necessary to indicate that "while

undergoing the training be treated as ' in service'

candidates from the date of joining the Institute". The

Language of Column (10) as amended by the Third Amendment

Rules of 1986 is clear and unambiguous and unequivocally

indicates that the period of training shall be treated as '

in service'. We do not find any prohibition or restrictions

in the statutory rules prohibiting the 'in Service' period

for being counted for the purpose of seniority. This being

the position in our considered opinion the Tribunal

committed serious error of law in holding that the training

period will be treated to be 'in service' only for the

purpose of getting pay and not for the purpose of seniority.

No such limited interpretation can be given to the express

language used in column (10) and on the other hand on giving

a full effect the provisions of Column (10) the conclusion

is irresistible that the service and will necessarily,

therefore, be counted for the seniority of the direct

recruits. The on which the learned counsel for the

respondent relied upon is of no assistance inasmuch as in

the said case the Regulation 12 (c) in unmistakable terms

had provided that the training period will not count as

service under Government and service will count only from

the date of appointment to the service after successful

completion of the course of training. In fact the aforesaid

decision has been duly noticed by this Court in RS. Ajara's

case and on account of the distinctive features of

regulation containing a prohibition it has been held that

the decision is of no application. We have also considered

the submissions of the learned counsel for the respondent

that such interpretation of ours would be repugnant to other

provisions of the Recruitment Rules but on a thorough

scrutiny of the Rules we do not find any repugnancy which

can be said to occur on account the interpretation given by

us to column (10) of the Schedule and other columns in the

Schedule. We have also carefully gone through the decision

of this Court in the case of A. N. Seghal (supra) and we do

not find anything stated therein contrary to what we have

indicated in the present case in interpreting the provisions

of the Recruitment Rules determining the service conditions

of the employees of the Himachal Pradesh Forest Service

Class II. In the aforesaid premises the impugned judgment

and order of the Tribunal is set aside and O.A. No. 109 of

1987 stands dismissed. it is held that the training period

of the direct recruits shall be counted for determining the

seniority in the service provided of course the said direct

recruit successfully completes the training and then is

absorbed in Class II Forest Service. This appeal is allowed

but in the circumstances there will be no order as to costs.