Bombay High Court
Darshika Chandrakant Rakhunde And ... vs State Of Maharashtra Thr. Principal ... on 3 September, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-NAG:9925-DB
1 wp2175.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2175/2021
1. Darshika Chandrakant Rakhunde,
aged about 40 Yrs., Occ. Service,
R/o Plot No.176, Lokseva Nagar,
Nagpur.
2. Pankaj Arun Uikey,
aged about 49 Yrs., Occ. Service,
R/o Pioneer Residence, House No.R/10,
Somalwada, Nagpur.
3. Sunil Pandurang Atram,
aged about 40 Yrs., Occ. Service,
R/o Anchaleshwar, Ward No.1,
Near Shukla Building,
Chandrapur.
4. Sanjay Devaram Nandanwar,
aged about 37 Yrs., Occ. Service,
R/o Andhalgaon Road, Subhash Ward,
Mohadi, Bhandara.
5. Sunita Vikas Sarode,
aged about 37 Yrs., Occ. Service,
R/o Plot No141, Utkarsha Housing
Society, Near Purti Super Bazar,
Besa Road, Nagpur.
6. Amar Krishnarao Sonurkar,
aged about 39 Yrs., Occ. Service,
R/o Jayanti Nagari-5, C Wing,
Besa Pipla, Nagpur.
2 wp2175.2021
7. Sunil Dattu Gore,
aged about 39 Yrs., Occ. Service,
R/o Plot No.308, Take of Garden,
Umred Road, Dighori, Nagpur.
8. Ipattikar Vithoba Kore,
aged bout 39 Yrs., Occ. Service,
R/o Ghodezari, Post Kolari (Patachi),
Tah. Lakhni, Distt. Bhandara.
9. Rekha Satish Gawande,
aged about 45 Yrs., Occ. Service,
R/o Quarter No.40, Vidnyan Nagar,
Manewada, Nagpur.
10. Pravinkumar Baburao Tikkas,
aged about 43 Yrs., Occ. Service,
R/o Plot No.34, Ramkrishna Nagar,
Umred Road, Nagpur.
11. Vaibhav Pandurang Jadhav,
aged about 36 Yrs., Occ. Service,
R/o Flat No.308, Take of Garden,
Umred Road, Dhighori, Nagpur.
12. Sudhir Gopal Shimple,
aged about 35 Yrs., Occ. Service,
R/o Flat No.308, Take of Garden,
Umred Road, Dhighori, Nagpur.
13. Yogesh Ramchandra Khodankar,
aged about 47 Yrs., Occ. Service,
R/o 125, Popular Society, Wadi
Naka, Nagpur.
14. Mamta Ramrao Rathod,
3 wp2175.2021
aged about 41 Yrs., Occ. Service,
R/o at Post Mokha, Tah. Digras,
Distt. Yavatmal.
15. Pournima Gunwant Bhambarkar,
aged about 37 Yrs., Occ. Service,
R/o C/o Nishant Ghorpade,
Chhatrapati Nagar, Chandrapur.
16. Kailash Rambhau Mundhe,
aged about 39 Yrs., Occ. Service,
R/o Agarwadi at Agarwadi,
Post Risod, Washim.
17. Dnyaneshwar Tukaram Kagne,
aged about 41 Yrs., Occ. Service,
R/o Flat No.308, Take of Garden,
Umred Road, Dhighori, Nagpur. ... Petitioners
- Versus -
1. State of Maharashtra,
through the Principal Secretary,
Department of Revenue and
Forest, Mantralaya, Mumbai 32.
2. Forest Development Corporation
of Maharashtra, through its Managing
Director, FDCM Bhavan, 359/B,
Hingna Road, Ambazari,
Nagpur 440 036.
3. Principal Secretary (Forests)
Revenue & Forests Department,
Mantralaya, Mumbai 400 032,
the Nominee Director (ex officio),
FDCM Ltd.
4 wp2175.2021
4. Principal Chief Conservator of
Forest (Head of Forest Force)
Maharashtra State, Van Bhavan,
Ramgiri Road, Civil Lines,
Nagpur 440 011, Nominee Director
(ex officio), FDCM Ltd.
5. Managing Director,
Maharashtra Tourism Development
Corporation Ltd., 4th Floor Apeejay
House, 3, Dinshaw Vachha Road,
Near K.C. College, Churchgate,
Mumbai 400 204, Nominee Director
(ex officio), FDCM Ltd.
6. Deputy Secretary (Forests),
Revenue & Forests Department,
Managing, Mumbai 400 032,
Nominee Director (ex officio),
FDCM Ltd. (respondent Nos.3 to 6
are deleted vide Court's
order Dt.24.6.2021)
7. T.L. Thakur,
Occ. Range Forest Officer,
Bhandar Kaksha, Office of the
Managing Director, Nagpur.
8. J.U. Pisad,
Occ. Range Forest Officer,
Ganeshpuri Range, Forest Project
Division, West Nashik.
9. A.S. Deshumukh,
Occ. Range Forest Officer,
5 wp2175.2021
Jamdi-2, Forest Project Division,
Gondia.
10. K.H. Chichkhede,
Occ. Range Forest Officer,
Medicinal Plant Branch,
Office of the Managing Director,
Nagpur.
11. D.B. Raut,
Occ. Range Forest Officer,
Lakhani Range Forest Project
Division, Bhandara.
12. V.U. Khamkar,
Occ. Range Forest Officer,
Gadhinglaj-1, Forest Project
Division, Pune.
13. V.D. Patil,
Occ. Range Forest Officer,
Morgaon Arjuni Range, Forest Project
Division, Gondia.
14. R.R. Bartakke,
Occ. Range Forest Officer,
Bij Ghatak Nagpur Range, Forest Project
Division, Nagpur.
15. R.R. Gadekar,
Occ. Range Forest Officer,
Khadsangi Range, Forest Project
Division, West Chanda.
16. M.R. Sheikh,
Occ. Range Forest Officer,
6 wp2175.2021
Yavatmal Range, Forest Project
Division, Yavatmal.
17. S.A. Musmade,
Occ. Range Forest Officer,
Sirsad Range, Forest Project
Division, West Nashik.
18. M.D. Katore,
Occ. Range Forest Officer,
Mobile Squad, Forest Project
Division, Thane.
19. J.D. Prahad,
Occ. Range Forest Officer,
Ambadi Range, Forest Project
Division, Kinwat.
20. S.V. Bhowte,
Occ. Range Forest Officer,
Ghatanji Range, Forest Project
Division, Yavatmal.
21. S.P. Klohe,
Occ. Range Forest Officer,
Somta Range, Forest Project
Division, Thane.
22. P.R. Thombal,
Occ. Range Forest Officer,
Boripada Range, Forest Project
Division, West Nashik.
23. G.U. Gurav,
Occ. Range Forest Officer,
Pimpri Chinchwad Turnkey Range,
7 wp2175.2021
Forest Project Division, Pune.
24. S.G. Khot,
Occ. Range Forest Officer,
Kuhi Range, Forest Project
Division, Nagpur.
25. A.V. Qureshi,
Occ. Range Forest Officer,
Markhada Range, Forest Project
Division, Markhada.
26. D.P. Pardeshi,
Occ. Range Forest Officer,
Aheri Range, Forest Project
Division, Pranhita.
27. P.V. Suryavanshi,
Occ. Range Forest Officer,
Office of General Manager,
Nagpur Region, Nagpur.
28. R.K. Patil,
Occ. Range Forest Officer,
Turnkey Plantation Range, Forest Project
Division, West Chanda.
29. R.S. Kadam,
Occ. Range Forest Officer,
Ballarshah Overwood Range,
Depot Division, Ballarshah.
30. P.R. Jadhav,
Occ. Range Forest Officer,
Zari Range, Forest Project
Division, West Nashik.
8 wp2175.2021
31. S.P. Aade,
Occ. Range Forest Officer,
Planning Office of Managing Director,
Nagpur.
32. V.D. Jangilwad,
Occ. Range Forest Officer,
Sindewahi Range, Forest Project
Division, Bramhapuri.
33. A.U. Kendre,
Occ. Range Forest Officer,
Yelgur Range, Forest Project
Division, Markhanda.
34. KN. Yadav,
Occ. Range Forest Officer,
Porla Range, Forest Project
Division, Bramhapuri.
35. S.V. Bhat,
Occ. Range Forest Officer,
Kinwat Range, Forest Project
Division, Kinwat.
36. P.S. Damale,
Occ. Range Forest Officer,
Nashik Range, Forest Project
Division, West Nashik.
37. K.J. Shinde,
Occ. Range Forest Officer,
Kanhargaon 1 Range, Forest Project
Division, Central Chanda.
9 wp2175.2021
38. D.S. Gedam,
Occ. Range Forest Officer,
Lohara Nursery, Forest Project
Division, West Chanda.
39. K.L. Bhangre,
Occ. Range Forest Officer,
Mobile Squad, Forest Project
Division, West Nashik.
40. R.D. Mogre,
Occ. Range Forest Officer,
Ladkhed Range, Forest Project
Division, Yavatmal.
41. D.B. Nagdive,
Occ. Range Forest Officer,
Sonegaon Chandrapur Range,
Forest Project Division, Bhandara.
42. P.S. Khanande,
Occ. Range Forest Officer,
Dindori Range, Forest Project
Division, West Nashik. ... Respondents
-----------------
Mr. S.P. Dharmadhikari, Senior Advocate with Mr. Uday Dable,
Mr. C.S. Dharmadhikari and Mr. Aamir Qureshi, Advocates for
the petitioners.
Mr. Devendra Chauhan, Government Pleader (Senior Advocate)
for respondent No.1.
Mr. A.S. Jaiswal, Senior Advocate with Mr. N.S. Khubalkar,
Advocate for respondent No.2.
Mr. Rahul Kalangiwale, Advocate for respondent Nos.7 to 18.
Mr. A.A. Naik, Advocate for respondent Nos.19 to 42.
----------------
CORAM: SMT. VIBHA KANKANWADI & MRS.VRUSHALI V. JOSHI, JJ .
DATE OF RESERVING THE JUDGMENT: 12.7.2024.
DATE OF PRONOUNCING THE JUDGMENT: 3.9.2024.
10 wp2175.2021
JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)
Heard Mr. S.P. Dharmadhikari, Senior Advocate for
the petitioners, Mr. Devendra Chauhan, Government Pleader
(Senior Advocate) for respondent No.1, Mr. A.S. Jaiswal, Senior
Advocate for respondent No.2, Mr. Rahul Kalangiwale, Advocate
for respondent Nos.7 to 18 and Mr. A.A. Naik, Advocate for
Respondent Nos.19 to 42.
2. Rule.
3. The petitioners have approached this Court being
aggrieved by the memorandum dated 4.6.2021 passed by
respondent No.2 thereby granting approval for treating the period
of training undergone by respondent Nos.7 to 42 as period spent
in service.
4. The petitioners are promotees and respondent Nos.7
to 42 are selected R.F.Os. through recruitment process.
Controversy is between promotees and direct recruits about their
inter se seniority.
11 wp2175.2021
5. Initial appointment of petitioners was as Foresters in
the year 2006 and 2007, thereafter they were promoted to Range
Forest Officer on ad-hoc basis in the year 2013 and by order dated
23.2.2015 they were confirmed.
6. In the year 2006 respondent No.2 revised its
Recruitment Rules introducing the appointment of post of Range
Forest Officer (for short "R.F.O.") by nomination. Appointment
by promotion and nomination to be made in the ratio of 50:50.
Again on 29.12.2011 the Recruitment Rules were revised and
instead of recruitment through M.P.S.C. the selection was
resolved to be made on the basis of recruitment examination
conducted by respondent No.2 itself. Rule 4 provides that
selected candidates through nomination shall be on probation for
a period of three years, out of which one and half year in Forestry
Training College and the remaining one and half year in field
training and it is a condition that the appointment of the
12 wp2175.2021
candidate to be made only after successful completion of the
training period.
7. Advertisement for direct recruits was issued on
27.3.2013 for 47 posts of R.F.Os. and clause 5.8.1 provided that
period of training would cumulatively be of 3 years and after
successful completion thereof, the candidate would be appointed
on the regular post. The recruitment procedure for appointment
of respondent Nos.7 to 42 was under the provisions of
Recruitment Rules dated 29.12.2011.
8. On 18.3.2015 Government by resolution granted
approval for direct appointment to other 21 posts of R.F.Os.
The Board of Directors again revised the Recruitment Rules vide
notification dated 5.2.2015. By said notification, it is resolved
that the training period shall be treated as service period.
Appointments of respondent Nos.7 to 42 were made under the
provisions of Recruitment Rules on 29.12.2011 and the Rules
contained in notification dated 5.2.2015 were proposed to be
13 wp2175.2021
adopted only for the purpose of filling remaining 21 vacancies.
The purpose of remaining 21 vacancies, therefore, cannot be
applied to respondent Nos.7 to 42 as they were selected under the
provisions of Recruitment Rules dated 29.12.2011.
9. During that period, respondent No.2 vide order dated
30.4.2016 appointed respondent Nos.7 to 42 on the post of
Probationary Range Forest Officer w.e.f. 1.5.2016. Therefore, the
date of their entry into service by direct recruitment to the post of
Range Forest Officer shall be from 1.5.2016 and the
appointments were to be confirmed only after completion of
training period. Some of the respondents/employees made
representation to respondent No.2 demanding to consider their
training period as service period and accordingly place them
higher in the seniority list. Respondent No.2 rejected the said
representation. In the meantime, Board of Directors took the
decision to promote the petitioners to the post of Assistant
Manager on ad-hoc basis.
14 wp2175.2021
10. Respondent Nos.7 to 42 preferred Writ Petition
No.1568/2018 seeking correction in the date of their entry into
service at the post of R.F.O. which is now withdrawn by
respondent Nos.7 to 42. In said petition, respondent No.2
opposed the reliefs sought by respondent Nos.7 to 42. Different
petitions challenging the reversion, rejection of representations
made by some of the petitioners to consider their period of service
from the date of their initial ad-hoc appointments, are pending
before this Court as the issues are different.
11. Respondent Nos.7 to 42 were appointed to the post
of Probationary Range Forest Officer w.e.f. 1.5.2016 and only
thereupon they came to be placed in the seniority list. The
petitioners were promoted on ad-hoc basis in July 2013 and their
services were regularized by the Recruitment Rules 1.1.2015. In
view thereof respondent Nos.7 to 42 are junior to the petitioners.
Despite this, respondent No.2 vide impugned memorandum
dated 4.6.2021 granted approval for treating the training period
15 wp2175.2021
undergone by respondent Nos.7 to 42 as period spent in service.
Hence filed this petition.
12. During the pendency of this petition vide order dated
16.7.2021 respondent No.2 published final revised seniority list
whereby respondent Nos.7 to 42 have been placed higher than
the petitioners. The petitioners prayed to quash and set aside the
said orders because as per seniority list they were promoted vide
order dated 13.8.2021 and respondent Nos.7 to 42 were
promoted as the Assistant Manager. Hence by way of amendment
prayed to quash and set aside both the orders dated 16.7.2021 and
13.8.2021.
13. Respondent No.2 filed its say and denied the contents
in the petition and supported their action of issuing
memorandum dated 4.6.2021. Respondent No.2 has given
clarification of appointments by Corporation by stating that
decision is taken for putting the different recruits at par with the
employees of State Government by granting benefit to count their
period of training as service period.
16 wp2175.2021
14. By an order of ad-hoc temporary promotion the
Foresters were promoted to the post of R.F.Os. in the year 2013.
Later on when the direct recruitment was made all the posts
which were vacant, were filled from the direct recruitment quota
from the Foresters who were promoted on ad-hoc basis as R.F.Os.
and were regularized w.e.f. 1.1.2015. Later, as there was vacancies
in the next higher post in the cadre of Assistant Manager through
departmental nominations who were promoted on ad-hoc basis as
R.F.Os. as regularized R.F.Os. from 1.1.2015 were further
promoted on ad-hoc basis on the post of Assistant Manager.
15. The directions were given to respondent No.2 by this
Court in Writ Petition No.2753/2020 and 1568/2018 to proceed
with regular promotions and said promotions would be subject to
outcome of the petition. The petition is pending before this Court
and only to maintain parity between F.D.C.M. and State
Government Forest Department a Memorandum is issued.
Respondent No.2 has given consequential reply to amended
portion of petition and has taken consistent stand.
17 wp2175.2021
16. On 6.7.2023 it has filed comprehensive reply and had
taken a complete "U" turn considering the effect of judgment
passed in Writ Petition No.2026/2019 which is confirmed by the
Hon'ble Apex Court and has stated that the Corporation has
wrongly considered the resolutions dated 20.3.2021 and 4.6.2021
as determinative for recognizing the seniority of direct recruits
R.F.Os. Said action was neither consistent with the Rules
applicable to them nor to the ratio laid down in that regard by
Aurangabad Bench and upheld by the Hon'ble Apex Court and
submitted that direct recruits R.F.Os. of 2014 would be governed
by the Rules of seniority read with other Recruitment Rules
applicable to them.
17. Respondent Nos.7 to 18 have also filed counter
comprehensive reply. They have stated that the judgment passed
by the Aurangabad Bench and confirmed by the Hon'ble Apex
Court has no bearing on the facts of the present petition as the
facts of the present petition and the Rules are made applicable for
recruitment in these matters are entirely different.
18 wp2175.2021
18. Assistant Conservator of Forests, State Government
through an express provision in rule 2 of Divisional Forest
Officers (in Maharashtra Forest Services Class I) Recruitment
Rules, 1984 has expressly provided that the period spent on
training cannot be treated as a period in service. Insofar as the
reliance on judgment of this Court in Writ Petition
No.2026/2019 from paras 29 onwards, which was upheld by the
Hon'ble Apex Court, is concerned, this Court has taken into
consideration the Recruitment Rules of 1998 as applicable to the
Assistant Conservator of Forests working with the State
Government. It is neither case of the petitioners nor respondent
No.2 that the said Rules of 1998 are identical to either the Rules
of 2011 or the Rules of 2015. Hence prayed to dismiss the
petition.
19. Respondent Nos.9 to 42 have filed their reply and
denied the contents in the petition. It is submitted that
respondents were put under the probation as R.F.Os. As per the
mandate, they were appointed to the said post on their eventual
19 wp2175.2021
and successful completion of probation period. It is submitted
that 2011 Rules do not contain an exclusionary clause providing
that the period of probation be excluded from the period of
service. It is submitted that the promotion of the petitioners was
contrary to Rules 2006 which stipulated continuous service of
Foresters. The promotion of petitioners was on ad-hoc post,
therefore, no benefit could be claimed by the petitioners. The
procedure of appointment of respondents was initiated under the
2011 Rules which, were in force then, however, it is clarified that
these Rules were applicable only till they were revised again in
2015 and fresh Rules were brought in force. Hence prayed to
dismiss the petition.
20. Learned Senior Advocate for the petitioners submits
that the appointments of direct recruits i.e. respondent Nos.7 to
42 are governed by the Recruitment Rules of 29.12.2011 for the
post of R.F.Os. Clause 4 of said Rules provides that selected
candidates shall be on probation for a period of 5 years, there is
condition that candidate should undergo forestry training for 1
20 wp2175.2021
and 1/2 year and field training for 1 and 1/2 year. Holistic
reading of said Rules would make it clear that the appointments
of petitioners were made only after successful completion of the
training period. In another words, their appointment orders are
issued only after completion of such training. The terms and
conditions in advertisement for direct recruits also reveal that the
successful candidate was to submit an undertaking that he/she
would complete training by recognized Forestry College and after
completion of the training he/she would serve respondent No.2
for a minimum period of 5 years. Conditions of Rules 5.8.2011
categorically provides that the period of training would
cumulatively be of 3 years and only after successful completion
thereof, a candidate would be appointed on a regular post.
Learned Senior Advocate further submitted that after final
selection of respondent Nos.7 to 42 for training they were to be
appointed to the post of R.F.Os. and as per government resolution
which granted approval for direct appointment of other 21 vacant
posts, respondent Nos.7 to 42 would occupy the post only after
21 wp2175.2021
completion of their training. In light of said approval the Board
of Directors of respondent No.2 resolved to further revise the
Recruitment Rules and procedure in future and also to fill up 21
posts of R.F.Os. of Forest Department. Clause 8 of notification
dated 5.2.2015 provides that after completion of the training
successfully, the training period shall be treated as service period
but on reading said clause, it reveals that the said period can at the
most be treated as service period for fixation of pay-scale as the
recruitment of candidates i.e. respondent Nos.7 to 42 were made
under the provisions of Recruitment Rules dated 29.12.2011 and
Recruitment Rules contained in notification dated 5.2.2015 were
proposed to be adopted only for the purpose of filling the
remaining 21 vacant posts of R.F.Os. In other words, said
notification dated 5.2.2015 was proposed to be adopted by
respondent No.2 vide Board Resolution dated 29.6.2015
prospectively for direct appointment of 21 vacant posts of R.F.Os
which were approved by respondent No.1 vide Government
Resolution dated 18.4.2015 and, therefore, same cannot be
22 wp2175.2021
applied retrospectively to respondent Nos.7 to 42 who were
selected for appointment much prior under the provisions of
Recruitment Rules dated 29.12.2011 and / or midway in their
training.
21. The petitioners relied on the judgment of this Court
of Aurangabad Bench in Writ Petition No.2026/2019 which was
upheld by the Hon'ble Apex Court in Civil Appeal No.822/2023
holding that R.F.Os. are entitled to get appointment after
successful completion of the training who are directly recruited
candidates and not from the date of training.
22. Learned Senior Advocate for the petitioners has relied
on the following judgments:-
(i) Prafulla Kumar Swain V/s. Prakash Chan dra Misra
and others1 wherein the Hon'ble Apex Court concluded that
recruitment is merely initial process which may eventually lead to
recruitment process and selection itself does not amount to
appointment.
1 1993 Supp (3) SCC 181.
23 wp2175.2021
(ii) Snehal S/o Baburao Kuwar V/s. State of Maharashtra
and others2 wherein this Court has relied on the judgment of
Prafulla Kumar Swain (supra) and has observed that the issuance
of an appointment order is the final stage in the entire
recruitment process, selection being penultimate stage. Once an
order of appointment is issued, the recruitment process ends.
(iii) A.A. Calton V/s. Director of Education and another3:-
"5........ It is true that the Legislature may pass laws
with retrospective effect subject to the recognised
constitutional limitations. But it is equally well
settled that no retrospective effect should be given
to any statutory provision so as to impair or take
away an existing right, unless the statute either
expressly or by necessary implication directs that it
should have such retrospective effect. In the instant
case admittedly the proceedings for the selection
had commenced in the year 1973 and after the
Deputy Director had disapproved the
recommendations made by the Selection
Committee twice the Director acquired the
jurisdiction to make an appointment from amongst
the qualified candidates who had applied for the
vacancy in question. At the instance of the appellant
himself in the earlier writ petition filed by him the
High Court had directed the Director to exercise
that power. Although the Director in the present
case exercised that power subsequent to August 18,
1975 on which date the amendment came into
2 2023 (3) Mh.L.J. 325.
3 (1983) 3 SCC 33.
24 wp2175.2021
force, it cannot be said that the selection made by
him was illegal since the amending law had no
retrospective effect. It did not have any effect on the
proceedings which had commenced prior to August
18, 1975. Such proceedings had to be continued in
accordance with the law as it stood at the
commencement of the said proceedings. We do not,
therefore, find any substance in the contention of
the learned counsel for the appellant that the law as
amended by the U.P. Act 26 of 1975 should have
been followed in the present case."
(iv) P. Mahendran and others V/s. State of Karnataka and
others4 relevant portion of para 5 as under:-
"5. It is well-settled rule of construction that
every statute or statutory Rule is prospective unless
it is expressly or by necessary implication made to
have retrospective effect. Unless there are words in
the statute or in the Rules showing the intention to
affect existing rights the rule must be held to be
prospective. If a rule is expressed in language which
is fairly capable of either interpretation it ought to
be construed as prospective only. In the absence of
any express provision or necessary intendment the
rule cannot be given retrospective effect except in
matter of procedure. The amending Rule of 1987
do not contain any express provision giving the
amendment retrospective effect nor there is
anything therein showing the necessary
intendment for enforcing the rule with retrospective
effect. Since the amending Rules were not
retrospective, it could not adversely affect the right
of those candidates who were qualified for selection
and appointment on the date they applied for the
4 (1990) 1 SCC 411.
25 wp2175.2021
post, moreover as the process of selection had
already commenced when the amending Rules
came into force, the amended Rules could not affect
the existing rights of those candidates who were
being considered for selection as they possessed the
requisite qualifications prescribed by the Rules
before its amendment moreover construction of
amending Rules should be made in a reasonable
manner to avoid unnecessary hardship to those who
have no control over the subject matter."
(v) N.T. Devin Katti and others V/s. Karnataka Public
Service Commission and others5, particularly relevant portion of
para 11 as under:-
"11. .....Where advertisement is issued inviting
applications for direct recruitment to a category of
posts, and the advertisement expressly states that
selection shall be made in accordance with the
existing rules or government orders, and if it
further indicates the extent of reservations in
favour of various categories, the selection of
candidates in such a case must be made in
accordance with the then existing rules and
government orders. Candidates who apply, and
undergo written or viva voce test acquire vested
right for being considered for selections in
accordance with the terms and conditions
contained in the advertisement, unless the
advertisement itself indicates a contrary
intention....."
5 (1990) 3 SCC 157.
26 wp2175.2021
(vi) State of Himachal Pradesh and others V/s. Raj Kumar
and others6 which was a case for retrospective amendment.
(vii) H.S. Vankani and others V/s. State of Gujarat and
others7, particularly para 34 as under:-
"34. We are of the view that the Government has
committed a grave error in unsettling the inter se
seniority of the graduates and non-graduates which
was settled as early as in the year 1982. The State
Government in its Letter dated 12.10.1982 had
taken the view that two years' training was imparted
to non-graduates of 1979-1981 batch and one years'
training was imparted only to graduates of
1980-1981 batch since the candidates with lesser
qualification required through training compared to
the candidates with higher qualification. Due to this
basic difference in the educational qualification
between the 1979-1981 and 1980-1981 batches,
the Government took a conscious decision that it
was not proper to unsettle the settled seniority even
if there was a delay in the appointment of
non-graduates. Subsequent to that decision, three
gradation lists were published, recognizing the
seniority of the respondents over the appellants."
(viii) A. Janardhana V/s. Union of India and others8,
particularly relevant portion of para 38 as under:-
6 (2023) 3 SCC 773.
7 (2010) 4 SCC 301.
8 (1983) 3 SCC 601.
27 wp2175.2021
"38 ......It is therefore, time to clearly initiate a
proposition that a direct recruit who comes into
service after the promotee was already
unconditionally and without reservation promoted
and whose promotion is not shown to be invalid or
illegal according to relevant statutory or
non-statutory rules should not be permitted by any
principle of seniority to score a march over a
promotee because that itself being arbitrary would
be violative of Articles 14 and 16. Mr. Ramamurthi,
learned counsel for some of the direct recruits in
this connection urged that if at the time when the
promotee was recruited by promotion, his
appointment/promotion was irregular or illegal and
which is required to be regularised, any subsequent
direct recruits coming in at a later date can seek
relief and score a march over such irregular and
illegal entrant. ......."
23. Learned Senior Advocate appearing for respondent
No.2 has argued that total 5 petitions are pending before this
Court involving various issues between direct recruits and
promotees. The Recruitment Rules were revised from time to
time. The 1998 Rules were revised in 2006. Then 2006 Rules
were revised in 2011 and now 2011 Rules are also revised in 2015.
Earlier till 2011 the scheme was that the appointment to the post
of R.F.Os. was to follow successful completion of training. In rule
28 wp2175.2021
2015 the training was to follow the appointment. Earlier the
Corporation was of opinion that a candidate is put to probation
signifies that he is appointed on a post and successful completion
of such probation period would result in confirmation of such
appointment.
24. After considering the judgment of this Court in Writ
Petition No.2026/2019 as well as the judgment of Hon'ble Apex
Court in Civil Appeal No.822/2023 the Forest Development
Corporation has changed the opinion and has come to the
conclusion that 2015 Rules would not have retrospective
operation so as to govern the recruitment process which was taken
up in 2014.
25. The legal position that emerges is that at the time of
recruitment of 2014 batch of direct recruits what governed the
said recruitment process was the revised Recruitment Rules of
December 2011, 2006 and 1998. A simple perusal of rules 4 and
5 of 2011 Rules would show that the scheme of the recruitment
was first - the selection, then second - training and third -
29 wp2175.2021
deciding inter se seniority amongst direct recruits on the basis of
the sum total of marks obtained in the recruitment examination
conducted by F.D.C.M. Limited and the marks obtained in
examination by the Forestry Training College at the conclusion of
1 and 1/2 year training course thereafter 1 and 1/2 year field
training conducted by F.D.C.M. and this follows appointment
order. Thus, the appointment order was to follow successful
completion of training.
26. Learned Senior Advocate for respondent No.2
submitted that employees who were before F.D.C.M. for adopting
revised Recruitment Rules from 6.4.2011 by the Government as
per 6.9.2006 Rules adopted by the F.D.C.M, the respondents
submitted that these Rules could be said to be fully applicable
even to the direct recruits of R.F.Os. by virtue of the government
resolution dated 23.9.2011. A careful perusal of government
resolution will show that by the government resolution the
Government of Maharashtra sanctioned 125 posts in the cadre of
30 wp2175.2021
R.F.Os. on certain conditions, and certain criteria applied by
M.P.S.C. could be followed.
27. It is further argued that respondent No.2 admitted
the wrong committed by it while taking compliance measures in
respect of resolution dated 23.3.2021 and consequential
communications dated 4.6.2021 wrongly considered them as
determinative factor for reckoning seniority of direct recruits
R.F.Os. which were neither consistent with the Rules applicable
to them nor in accordance with the ratio laid down in that regard
by Aurangabad Bench in its judgment which has been upheld by
Hon'ble Apex Court in it's order dated 15.3.2023. It is submitted
that resolution dated 23.3.2021 and consequential
communication dated 14.6.2021 cannot be said to be
determinative about the date from which the seniority of the
direct recruits is to be recognized.
28. The final seniority list of R.F.Os. as on 1.1.2021
published by respondent No.2 on 16.7.2021 wherein the
seniority of direct recruits R.F.Os. of 2014 batch was reckoned
31 wp2175.2021
from the date of commencement of training stands erroneous,
inconsistent with the existing Rules and not in conformity with
the ratio laid down in that regard by Aurangabad Bench of this
Court. The same needs to be corrected by saying that the
seniority of such direct recruited R.F.Os. of 2014 batch from next
date of conclusion of successful completion of their 3 years
training. However, since the matters are now sub judice before
this Court respondent No.2 has not taken any corrective action at
their level.
29. Respondent No.2 after changing the stand has relied
on the decision in the case of Government of Andhra Pradesh
and others V/s. S. Ramamanohara Rao and others 9 in which it is
observed that "the seniority can be reckoned only on acquiring
eligibility to be appointed from front door and not from side door
or backdoor." It is submitted that this judgment is very much
applicable to the facts of this case because though before
completion of 3 years of their training period, the direct recruit
RFOs were appointed in the midst of the training period, still
9 1991 Supp (2) SCC.
32 wp2175.2021
they were eligible to be appointed only on successful completion
of training period. Therefore from the day after successful
completion of their training period their seniority can be
reckoned in the cadre of RFOs.
30. Respondent Nos.7 to 18 have argued that the
petitioners are appointed to the post of R.F.O. by promotion,
however, their promotion is contrary to the prevailing Rules and,
therefore, the order dated 23.2.2015 is bad in law. Respondent
Nos.7 to 18 are appointed on the post of R.F.O. w.e.f. 1.3.2014
and 1.4.2014 and appointment of petitioners by way of
promotion is dated 23.2.2015. Respondents are inducted in
service as R.F.O. much prior to the appointment of petitioners.
The appointments of petitioners dated 5.7.2013 and 28.10.2013
are on purely ad-hoc basis and, therefore, no benefit could be
claimed by the petitioners. Harmonious reading of terms and
conditions of the advertisement makes it clear that appointment
as probationer is a substantive appointment and it is only subject
to successful completion for being confirmed. As per clause 5.8
33 wp2175.2021
salary is provided to the candidates during probation period.
Though the recruitment procedure for appointment of
respondent Nos.7 to 42 was initiated under the Recruitment
Rules dated 29.12.2011, subsequent changes in the Rules are
equally applicable to respondents. The respondents have argued
in detail according to their reply. To avoid repetition, we are not
mentioning it in detail.
31. According to Advocate for respondent Nos.19 to 42
the recruitment procedure for appointment of respondents was
initiated under 2011 Rules which were in force then. However,
these Rules were applicable only till they were revised again in
2015 and fresh Rules were brought in force. Maharashtra Civil
Services (Regulation of Seniority) Rules, 1982 are not applicable
to the respondents. It cannot be applicable to employees of
respondent No.2 unless expressly adopted by their board
resolution, therefore, reliance placed by the petitioners upon rule
4 of the said Rules is highly misplaced. The petitioners have
accepted their promotion to the post of R.F.O. w.e.f. 1.1.2015
34 wp2175.2021
without any demur and are, therefore, estopped from raising any
grievance regarding the same. If the Rules on the date of
appointment shall govern the service of officers, then none of the
petitioners were eligible to be promoted to the post of R.F.O. on
1.1.2015.
32. It is a case where respondent No.2, who is the Forest
Development Corporation, has revised the Recruitment Rules
from time to time. By notification dated 29.6.2015 the
Recruitment Rules were revised, which raised the cause for filing
different petitions before this Court. Initially respondent No.2
denied the contents of petition and supported the decision taken
by it dated 4.6.2021 thereby the training period is counted as a
period spent in service. Consequential orders were passed as per
the directions in Writ Petition Nos.1568/2018 and 2753/2020
and final seniority list was published which is also the subject
matter of this petition. After pronouncement of judgment in
Writ Petition No.2026/2019 by Aurangabad Bench, which is
upheld by the Hon'ble Apex Court, the respondent No.2 has
35 wp2175.2021
changed its stand and confessed that it has committed mistake
and showed the willingness to take corrective action. It therefore
requires to first consider the effect of judgment passed by
Aurangabad Bench. On careful perusal of the judgment and facts
of this case, it appears that it distinguishes from the material facts
of this case. In the case before Aurangabad Bench, in the
Recruitment Rules of the promotional post, there was a provision
which made it clear that a period spent on training could not be
counted as service period because no such Rules exists in the
Rules applicable to promotional posts of Assistant Mangers to the
effect that the period spent on training in lower posts of Assistant
Managers of R.F.Os. shall not be, (or shall be) counted as service
period. Therefore, on this count the said judgment of Aurangabad
High Court is distinguishable from the facts and circumstances
occurring in this case. Rules 2015 expressly provides that, "the
period spent on training shall be treated as a period in service"
whereas, the Rules which were subject matter of Writ Petition
No.2026/2019 expressly provided that "The period spent on
36 wp2175.2021
training shall not be counted as a period in service". This very fact
makes it clear, with due respect, that the judgments of Hon'ble
Supreme Court and this Court are not applicable to the facts of
the present case.
33. It is not correct that the Rules would apply only
prospectively, it depends on words used. If we read 2011 and
2015 Rules conjointly, it reveals that in former Rules it was
implicit that the period of probation be treated as service period
and 2015 Rules only explained it further in express terms. The
board resolution dated 29.6.2015 does not expressly or otherwise
state that the notification dated 5.2.2015 only pertains to 21
vacant posts of R.F.Os. An employer cannot frame Recruitment
Rules only for certain employees. If such would be the intention
then it should be expressly stipulated since beginning. Resolution
dated 29.6.2015 never contemplated two classes of employees in
the same cadre, particularly when they are similarly situated. If
the interpretation of petitioners is accepted that 2015 Rules are
applicable only to subsequent appointments for 21 candidates
37 wp2175.2021
only then it shall create an anomalous situation where a person
appointed prior to the adoption of notification dated 5.2.2015 as
a probationary R.F.O. would be junior to the candidates
appointed as probationer after adoption of the notification dated
5.2.2015 as the training period of such a candidate would be
treated as service period.
34. Respondent No.2 is Government of Maharashtra
undertaking. It is governed by it's Articles of Association under
which all powers regarding management of the company, conduct
of business and service conditions of it's employees are vested
with it's Board of Directors. Respondent No.2 itself has framed
its own service conditions and Recruitment Rules for it's
employees and in that regard, it may adopt Rules or Directives of
Government by way of a Board Resolution.
35. Article 91 of Memorandum of Association and
Articles of Association provides the specific powers of board.
Clause 5 of Article 91 is reproduced below:-
38 wp2175.2021
91. Without prejudice to the general powers
conferred by the last preceding Article, and the
other powers conferred by these Articles and subject
to the provisions of the Act the Board shall have the
following powers, that is to say power:-
(1) .....
(2) .....
(3) ......
(4) .....
(5) to appoint and at their discretion, remove or
suspend such managers, secretaries, officers, clerks,
agents, and servants for permanent, temporary or
special services as it may from time to time think fit,
and to determine its powers and duties and fix their
salaries or emoluments and to require security in such
instances and to such amount as it thinks
fit : provided that no appointment to a post in the
company carrying basic pay of or above Rs.5900/-
per month shall be made without the prior approval
of the Governor."
36. In said capacity respondent No.2 F.D.C.M. has
revised the Rules from time to time. Rules were revised in 2006,
2011 and 2015.
37. Pursuant to Board resolution passed under Item No.5
at 159th Board meeting held on 29.12.2011 Revised Recruitment
Rules for direct recruitment of Range Forest Officers (only in
respect of direct recruits) as per rule 4 of revised Rules "The
39 wp2175.2021
selected candidates shall be on probation for a period of 3 years,
out of which one and half years period shall pertain to training in
a Government of India recognized Forestry Training College and
remaining one and half year period shall pertain to field training
prescribed by the Managing Director of F.D.C.M." In earlier
Rules of 2006 as per rule 3 "The candidate shall be selected
through MPSC and appointed upon successful completion of
prescribed period." It is specific in 2006 Rules that selected
candidate will be appointed on successful completion of
prescribed training course.
38. A perusal of the provisions of 2011 Rules thus
indicates that said Rules deals exclusively with the matter of
recruitments and appointment on the post of R.F.Os.
39. It is, thus, clear that respondent No.2 being
Government undertaking can frame Rules and can alter the terms
and conditions of its employees. Respondent Nos.19 to 42 placed
reliance on the judgment of the Hon'ble Apex Court in the case
40 wp2175.2021
of The State of Jammu and Kashmir V/s. Shri Triloki Nath Khosa
and others10 has observed as under:-
"16. ...... It is well-settled that though employment
under the Government like that under any other
master may have a contractual origin, the
Government servant acquires a 'status' on
appointment to his office. As a result, his rights and
obligations are liable to be determined under
statutory or constitutional authority which for, its
exercise, requires no reciprocal consent. The
Government can alter the terms and conditions of its
employees unilaterally and though in modern times
consensus in matters relating to public services is
often attempted to be achieved, consent is not a
pre-condition of the validity of rules of service, the
contractual origin of the service notwithstanding.
40. They have also relied on the judgment in Prafulla
Kumar Das and others V/s. State of Orissa and others11 it is
observed in para 33 as under:-
"33. Under Article 309 of the Constitution of
India, it is open to the Governor of the State to
make rules regulating the recruitment, and the
conditions of service of persons appointed, to such
services and posts until provision in that behalf is
made by or under an Act of the Legislature. As has
been rightly pointed out by the Court in the
Nityananda Kar case (supra), the Legislature, or the
Governor of the State, as the case may be, may, in its
discretion, bestow or divest a right of seniority. This
10 (1974) SCC 19.
11 (2003) 11 SCC 614.
41 wp2175.2021
is essentially a matter of policy, and the question of a
vested right would not arise, as the State may alter or
deny any such ostensible right, even by way of
retrospective effect, if it so chooses (sic) or in public
interest."
41. The respondent No.2 Corporation has power to
change the Rules. By notification dated 5.2.2015 new Rules came
in existence which starts with wording "No.FST-03/14/C.R.221/
F-4. - In exercise of powers conferred by the proviso to article 309
of Constitution of India and in supersession of the Range Forest
Officer in the Maharashtra Forest Service, Group-B
(Recruitment) Rules, 1997, the Governor of Maharashtra is
hereby pleased to make the following Rules regulating
recruitment to the post of Range Forest Officer in the
Maharashtra Forest Service, Group 'B' (Gazetted) under the
Revenue and Forests Department of Government of
Maharashtra....."
42. The Rules clearly show that 2015 Rules came in
existence in supersession of the R.F.O. in Maharashtra Group 'B'
42 wp2175.2021
(Recruitment) Rules 1997, therefore, earlier Rules referred as
Rules 1998, ceased to exist after this notification dated 5.2.2015.
These Rules do not intend to act retrospectively, it clarifies the
rule 4 of Rules 2011 which would govern the appointment of
respondent Nos.7 to 42 (direct recruits). The competitive exam
for recruitment for the year 2014 was conducted in the year 2013
in pursuance of advertisement dated 27.2.2013. The recruitment
was completed in the year 2013 and training commenced in 2014.
Order by which the respondents were sent for training is
substantive appointment on the post of R.F.O. The petitioners
have not challenged new Rules of 2015. There is no question of
retrospectivity of Rules dated 5.2.2015. Intention of respondent
No.2 was to bring terms and conditions of service and
Recruitment Rules of R.F.Os. of F.D.C.M. at par with R.F.Os. of
State Government. Therefore, the decision taken in respect of
R.F.Os. in State Government should be made applicable to the
R.F.Os. of F.D.C.M. When the respondents were put under
probation as R.F.Os., it was manifest that they were appointed to
43 wp2175.2021
the said post and their eventual and successful completion of
probation period merely resulted in confirmation of their
appointment.
43. This Court in Writ Petition No.2644/2024 (Nilay
Suresh Bhoge and others V/s. The State of Maharashtra and
others) delivered on 2.8.2024 in which both of us were party
(Coram : Smt. Vibha Kankanwadi & Mrs. Vrushali V. Joshi, JJ)
in relevant portion of para 34 we have observed as follows:-
"34. ...... As aforesaid, the recruitment Rules of
1998 gives two modes of selection to the post of
RFO Rules 3(a) and 3(b) which is in respect of the
promotion from the feeder cadre of Forester and
another is by direct recruitment. The crucial
question that has been posed as to whether the
respondent no.4 and others would be governed by
the Rules of 1998 or by the Rules of 2015 which
appears to have come into existence in between the
recruitment process. Taking into consideration the
2015 Rules which start with wordings "in exercise
of powers conferred by the proviso to Article 309 of
Constitution of India and in supersession of the
RFO in the Maharashtra Forest Service, Group
(Recruitment) Rules, 1997, the Governor of
Maharashtra is hereby pleased to make the
following rules regulating recruitment to the post of
RFO in the Maharashtra Forest Service, Group
(Gazetted) under the Revenue and Forest
Department of Government of Maharashtra". The
44 wp2175.2021
effect of the supersession is that the old rules i.e.
Rules of 1997, which were earlier referred to as
1998 Rules, ceased to exist after the Notification
dated 05-02-2015. Under this circumstance alone,
the petitioners cannot ask the respondent State to
fall back on the Rules of 1998. There is no question
of operating the Rule of 2015 retrospectively. The
Rules of 2015 after its coming into force would be
applicable to all those who were in the said cadre or
those would come in the said cadre. It appears that
the confusion even prevailed with the department,
but we are required to go by the Rules and not by
any communication which might be the
interpretation by an officer. Further the Rules are
required to be considered as a whole and not in
piecemeal. There was no savings clause in the Rule
of 2015 in respect of the earlier Rules and when
those Rules are made for the recruitment which not
only deals with how the selection process is made,
but it also deals with then what would be the period
of probation and how the service would be treated.
The ratio laid down in Amit Singh (supra) is
required to be considered here when the Rules are
framed in the exercise of powers conferred by the
proviso to Article 309 of the Constitution of India
and are in suppression of all existing Rules and
orders on the subject. Therefore, in fact, we are not
even required to go into the aspect of how the
selection was made under 1998 Rules and what is
the difference now under the Rules of 2015.
Certainly those Rules are different and a 3rd
category is also introduced of the limited
competitive examination under the new Rules
thereby making the promotional post with
25 : 25: 50 quota."
45 wp2175.2021
44. The respondents have brought to our notice that the
promotion of petitioners itself was contrary to the Rules of 2006
which stipulated minimum 8 years of continuous service as
Foresters to be eligible for promotion as Range Forest Officer.
According to the petitioners, they were appointed as Foresters on
8.1.2007 and 1.8.2008 and they came to be promoted as R.F.Os.
vide order dated 23.2.2015 in clear contravention of the Rules of
2006 (8 years would complete after 8 months and the petitioners
were promoted before completing 8 years). As the petitioners
were on purely ad-hoc basis, no benefit thereof could be claimed
by the petitioners.
45. On perusal of order of promotion of petitioners it
reveals that R.F.Os. quota of direct recruits was not filled and,
therefore, against that quota the petitioners were promoted on ad-
hoc basis as R.F.Os. In the meanwhile, prior to ad-hoc promotion,
an advertisement for direct recruitment was published on
27.2.2013, however, the vacancies were filled on ad-hoc basis by
ad-hoc temporary promotion to the post of R.F.Os. On going
46 wp2175.2021
through the orders of promotion it appears that said ad-hoc
promotion was not intended to confer any right of permanent
promotion to the promotees. Moreover, promotion was purely
fortuitous and they were not entitled to any seniority on ad-hoc
promotion. The conditions are specifically mentioned in
promotion orders. After completing the recruitment process i.e.
on 1.3.2014 and 1.4.2014 the promotion quota was filled by
promotion of departmental promotees w.e.f. 1.1.2015.
Respondent No.2 has stated in reply how Corporation was
compelled to promote the petitioners on temporary basis as
Assistant Manager in exigency of administration. As per the
mandate of Recruitment Rules the direct recruits were required to
be placed at the top in the order of seniority and only after their
50% quota is achieved, remaining 50% are to be taken from
departmental promotees. However, after sending the recruits i.e.
respondents for training due to shortage of manpower, respondent
No.2 appointed Foresters by promoting them on temporary basis.
The promotees were aware that their promotions were purely
47 wp2175.2021
stop-gap arrangement which would not entitle them to any claim
of seniority.
46. We may consider the decision in the case of R.S.
Ajara and others V/s. State of Gujarat and others12 particularly
relevant portion of para 22, wherein it is observed as under:-
"22. ..... The promotee officers cannot, therefore,
claim that any right to promotion had accrued to
them on the basis of the said select list and the
same has been adversely affected as a result of the
resolution dated 31-1-1992."
47. Reliance is also placed on the judgment in the case of
S.S. Bola and others V/s B.D. Sardana and others 13. It is observed
by the Hon'ble Apex Court in the case of T. Narasimhulu and
others V/s. State of Andhra Pradesh and other s14 in para 24 as
follows:-
"24. It is, thus, clear from the judgment of a larger
Bench that in S.S. Bola & Ors. v. B.D. Sardana & Ors.
(supra) that seniority of a Government servant is not
a vested right and that an Act of the State Legislature
or a rule made under Article 309 of the Constitution
can retrospectively affect the seniority of a
Government servant. ....."
12 1997 SCC (L & S) 851.
13 (1997) (8) SCC 522.
14 (2010) 6 SCC 545.
48 wp2175.2021
48. To avoid repetition, we would like to rely on the
observations made by us in Writ Petition No.2644/2024. We
may quote relevant portion of paras 35, 36 and 37 as under:-
"35. ..... If we take the facts into consideration as
aforesaid the requisition was given to the MPSC on 02-
05-2013 for filling in 76 posts of RFOs by direct
selection/nomination. Then second requisition was
given to MPSC on 12-02-2014 for the post of 196
posts. Advertisement was published on 12-04-2014.
Preliminary examination was held on 27-04-2014. The
second advertisement that is for main examination was
published for all those who had cleared the preliminary
examination on 15-06-2015, but in the meantime the
new rules of 2015 were notified on 05-02-2015.
Thereafter, the list appears to have been finalized and
then orders for training to the selected candidates were
issued on 22-08-2016. Thereafter, the orders were
issued of RFOs on probation-cum-field training on 13-
03-2018. All these events would show that in the midst
the Rules have changed on 05-02-2015, by superseding
the Rules of 1998. At the cost of repetition we would
say that after the Notification of Rules of 2015, the
Rules of 1998 were not in existence or came to an
end. ......
36. When the entire Rules were changed, it is then
immaterial when the competitive examinations were
held and the insistence of the petitioners that no
competitive examination was held as per Rule 3(b) of
1998 Rules, would be devoid of merits. It has been
brought on record that in respect of orders those were
passed at the Principal Seat at MAT, the review
application and then the writ petition before this Court
Bench at Aurangabad i.e. Writ Petition No.2026/2019
49 wp2175.2021
which read down the Rule of 1998 in respect of
Assistant Conservator of Forest and then the said
judgment and order was confirmed by the Hon'ble
Supreme Court is concerned, it is to be noted that those
judgments were in respect of Rules of 1998, wherein it
was held that the directly recruited RFOs/Assistant
Conservator of Forests are eligible to get appointment
order after successful completion of training period and
not from the date of training period itself. However, as
aforesaid as regards the Rules for RFOs are concerned,
which came to be notified on 05-02-2015, specifically
states that they are in supersession of the earlier
recruitment Rules of 1997 (Rules of 1998).
37. As aforesaid, the Rule 8 of Rules of 2015 makes
the training period as part of service and in the present
case the chronology of events would clearly show that
before the training orders were issued to those selected
candidates the Rules of 2015 had come into existence.
Therefore, as regards the respondent no.4 and similarly
situated persons are concerned, the date of appointment
would be the date on which the training order was
given provided the training period as well as probation
period has been successfully complied with. Definitely
the duration of probation period would be the
discretion of the employer and the decisions of the
Hon'ble Supreme Court on the said point would be
applicable here. The petitioners had heavily relied on
N.T. Deven Kutti (supra). However, we are of the
opinion that the said ratio will not be applicable here, as
we are not considering the selection of respondent no.4
and similarly situated officers as they were not
challenged before the Tribunal. Similar is the case in
respect of Assam Public Service Commission (supra)
and Madan Mohan Sharma (supra). The observations
in A. Janardhana (supra), may reflect the true
50 wp2175.2021
sentiments of a promottee. However, in absence of
challenge to the Rules, we cannot hold that the
seniority that is derived from those Rules would be
violative of Articles of 14 and 16 of the Constitution of
India."
49. Respondent Nos.19 to 42 have placed reliance on the
judgment in the case of Jacob M. Puthuparambil and others V/s.
Kerala Water Authority and others15 in which it is observed that
since these Rules were framed in exercise of powers conferred by
the proviso to Article 309 of Constitution they are undoubtedly
statutory in character. Here respondent No.2 is Corporation and
not State. It can have it's own Rules. Respondent No.2 has
adopted State Rules that does not mean petitioners can be
considered as State employees or Article 309 of Constitution of
India will be applicable.
50. We have also observed in Writ Petition
No.2644/2024 in para 41 as follows:-
"44. A point was raised on behalf of the respondents
that a joint and harmonious reading of Rules 3, 6 and 7
of the Rules of 1998 would clear that an officer is
appointed on probation for three years on first day of
appointment itself and not to the training course. It has
15 (1991) 1 SCC 28.
51 wp2175.2021
been countered by the petitioners by saying that the
said submission is contrary to the admitted position by
the Government. The probation letters were issued
after the selection by MPSC which showed that those
persons will have to undergo probation after the
successful completion of training of 18 months and
after completion of the training as well as probation
period, he would be considered as appointed to the
post and till then the candidate would receive stipend.
Again, at the cost of repetition we would consider that
when in the midst rules have been changed in
supersession then the superseded rules will not be
applicable. The new rules would only govern the field."
51. We are also taking note of the decision in the case of
State of H.P. V/s. J.L. Sharma and another 16 where in it is held
that the training period of direct recruits shall be counted for
determining the seniority in the service provided of course the
recruits successfully completes the training and then is absolved in
forest service. We are also taking note of the decision in the case
of Union of India V/s. S.S. Uppal and another 17 wherein it is held
that fixation of seniority would arise only after the officer is
appointed. But here in this case, after Rules, specially rule 8, the
16 (1998) 1 SCC 727.
17 (1996) 2 SCC 168.
52 wp2175.2021
training period has been considered as the service period and it is
not specifically challenged in the petition.
52. In view of above said observations, there is no
substance in the petition. It is devoid of merits and deserves to be
dismissed. Accordingly, it is dismissed.
(MRS.VRUSHALI V. JOSHI, J.) (SMT. VIBHA KANKANWADI,J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PA To Honourable Judge
Date: 04/09/2024 16:44:07
