Yours faithfully
Sd/- 13.04.2017
Under Secretary to Government."
Santosh Kumar Singh, Debadutta Sutar and Murari
Prasad Panda did not find place in the said gradation list
as they had been accorded promotion taking into
account their training period as qualifying service. In
such gradation list the names of the petitioners are
placed between Serial No.93 and Serial No.426. In the
process all the private opposite parties have become
senior to the petitioners in the Cadre of Foresters.
3. With the above factual backdrop as narrated by the
petitioners, a counter affidavit has come to be filed on
13.09.2024 being sworn to by the Assistant Conservator
of Forests (Legal Cell) wherein it has been clarified as
follows:
FE3-FE-0165-2017-- 7420/F&E, dated 13.04.2017
specifying that seniority of the Foresters appointed
under the RA Rules are to be fixed from the date of their
joining in the Training or the Division, whichever is
earlier, cannot have retrospective operation. He relied on
the decision of the Hon'ble Supreme Court of India in the
case of K. Kuppusamy Vrs. State of Tamil Nadu, (1998) 9
SCC 469 wherein it has been laid down as follows:
6.1. By way of Date Chart and Submission dated 02.04.2025,
it is submitted that Rule 13 of the RA Rules framed
under proviso to Article 309 of the Constitution of India
stipulates treatment of appointees under such Rules
with respect to determination of seniority as follows:
6.2. Advancing his argument, stemming on Rule 6 and Rule
29 of the ―Rules for the Forester Training in Odisha‖3 it
3 Relevant portion of the Rules for the Forester Training in Odisha is reproduced
hereunder:
4. The course is for one year and it is intended to train Foresters in the
Department and also Foresters from neighbouring States. Candidates
sponsored by other Departments of Government like Agriculture (Soil
Conservation) can also be trained. Government undertakings and other
Forest-based industries can depute candidates subject to prior approval of
the Chief Conservator of Forests for training in the Institutes.
5. On successful completion of the training the candidates will be awarded
certificates as hereinafter provided.
Section-III
Admission Rules
6. There shall be the following categories of students:
Section-V
***
is contended that the private opposite parties can be
said to have been appointed as ―Foresters‖ only after
completion of training. The private opposite parties being
sponsored for undergoing Foresters' Training with effect
from 16.06.2008, continued as trainee for one year, i.e.,
till l5.06.2009. Since their appointment letters are
issued latter to 15.06.2009, after successful training,
they could not be said to have borne in the Cadre prior
to said date, i.e., 15.06.2009. Hence, he would submit
that having been borne in the Cadre of Foresters on
10.02.2009 by way of merger of Cadre of VWF, the
petitioners should have been treated to be senior than
the private opposite parties.
6.3. It is vehemently contended that the Instruction dated
13.04.2017 cannot be said to have any retrospective
effect, which is the basis for counting training period of
the Foresters appointed under the RA Rules towards
their seniority. Emphasis is laid by Sri Agasti Kanungo,
learned Advocate on the Affidavit dated 20.03.2025 filed
29. (i) The student Foresters will receive their pay and D.A. as usual. In
addition they will receive the following allowances:
The salary and allowances of the Foresters during training shall
be distributed by the respective Directors and charged to the
Budget allotment of his Division instead of the I.D.T. adjustment
followed now.
(ii) In other cases the candidates must get a monthly stipend of at
least Rs.200/- or such higher amount as may be decided by the
Chief Conservator of Forests depending upon the cost of living. In
addition, they will get T.A. at Government rate or T.A. at the rate
prevalent in the organisation by which they are sponsored,
whichever is beneficial to the candidate."
by the petitioners enclosing therewith the Forest and
Environment Department Letter dated 31.03.20194
whereby the said Instruction in Letter dated 13.04.2017
stood superseded.
7. Refuting allegation of arbitrary action of the authorities
concerned in fixing seniority, Sri Swapnil Roy, learned
Advocate for the private opposite parties would submit
that the Odisha Subordinate Forest Service (Method of
Recruitment and Conditions of Service of Foresters)
Rules, 1998 was in vogue at the relevant period and
Rule 4 thereof dealing with ―Method of Recruitment‖ so
Yours faithfully
Sd/- 13.04.2017
Under Secretary to Government."
far as it related to VFWs are concerned it laid down that
"by way of redesignation and merger of the existing
Cadre of Village Forest Workers (VWFs) as one-time
arrangement and the VFWs so merged shall not be
treated as direct recruits or promotees to the Cadre of
Foresters". Since gradation (seniority) lists dated
08.11.2016 (Annexure-4) and dated 24.06.2017
(Annexure-7) are sought to be rectified by quashing
Instruction dated 13.04.2017 (Annexure-6) issued by the
Forest and Environment Department, the said Rules,
1998 is applicable, despite the said Rules have been
superseded by virtue of the Odisha Subordinate Forest
Service (Method of Recruitment and Conditions of
Service of Foresters) Rules, 2018.
7.1. Referring to Letter No.21795/2F (NG)-301/2005, dated
17.10.2007 of the Conservator of Forests
(Administration) in the Office of the Principal Chief
Conservator of Forests, Odisha and Forest and
Environment Department Letter No.2F(R)-4/05
(Pt)/5257/F&E, dated 31.03.2008 (Annexures-B/15 and
C/15 of the counter affidavit of the private opposite
parties), it is submitted that the names of the opposite
party Nos.5 to 9, 11, 14 to 17 and 19 along with other
candidates were forwarded to the opposite party No.2 for
taking necessary steps by giving appointment to the post
of Foresters under the RA Rules. Consequent thereupon
by a Letter Memo No.18172-- 2F(NG)-38/08, dated
26.05.2008, the Chief Conservator of Forests
(Administration) instructed the concerned Divisional
Forest Officers to intimate these nineteen numbers of
candidates appointed under the RA Rules to join the
training school at Nicholson Forest Training School,
Champua during the session commencing from
16.06.2008. After successful training, Certificates were
issued by the competent authority and in tune with
Instruction dated 13.04.2017 (Annexure-6) a Letter
No.9728/2F(NG)14/ 2017, dated 13.04.2017 was issued
by the Chief Conservator of Forests (Personnel and
Administration) to the effect that the seniority of the
Foresters appointed under the RA Rules shall be
reckoned from the date of their joining in the Training or
in the Division, whichever is earlier. It is brought to
notice that whereas the date of joining in the Training of
the private opposite parties being 16.06.2008, the policy
of the Government to re-designate and merge the Cadre
of VFW as one-time arrangement with the Cadre of
Foresters came to exist on 10.02.2009 by virtue of the
Odisha Sub-ordinate Forest Service (Method of
Recruitment and Conditions of Service of Foresters)
Amendment Rules, 2009. Therefore, the learned counsel
argued that it is incorrect to say that the gradation list
indicating seniority of the private opposite parties above
the petitioners is illegal or not in consonance with Rule
13 of the RA Rules.
7.2. It is submitted by Sri Swapnil Roy, learned Advocate
that the Odisha Sub-ordinate Forest Service (Method of
Recruitment and Conditions of Service of Foresters)
Rules, 1998 in Rule 245 made it clear that a candidate
on being recruited would undergo the training. These
opposite parties, being relieved from the concerned
Divisions, joined the Training School for one year. After
successful completion, Certificates have been awarded
by the Forest Department by depicting particular
Division against each personnel from where the
employee was relieved. That itself is indicative of the fact
that the private opposite parties were already in the
Government Service holding post of ―Forester‖. Having
joined the Training School on 16.06.2008, said date can
be reckoned for the purpose of entry into Government
service.
5 Rule 24 of the Odisha Sub-ordinate Forest Service (Method of Recruitment and
Conditions of Service of Foresters) Rules, 1998 stood thus:
(1) A candidate who is recruited directly or by way of promotion shall
undergo the training as prescribed by the Government in Forest
Department. Candidates who successfully complete the training may
remain on probation for a further period of one year and on successful
completion of probation he may be confirmed in the cadre subject to
availability of a substantive vacancy in the Cadre.
(2) The appointing authority shall have the power to terminate the services of
direct recruits who has not completed the probation period to the complete
satisfaction of the Authorities and who has not passed the training
examination in two consecutive chances.
(3) The appointing authority shall have the power to revert the promotee
Officer to his feeder Grade/Cadre for not having completed the probation
period successfully or for not having passed the training in two
consecutive chances."
7.3. In sharp contrast to the contention of the counsel for the
petitioners that during the period of training the private
opposite parties were not paid salary but stipend, Sri
Swapnil Roy, learned Advocate put forth by referring to
Letter dated 03.07.2008 of the Chief Instructor, Nicholas
Forest School, Champua that said Instructor having
acknowledged joining of the trainees, requested the
Conservator of Forests to draw bank draft for an amount
payable to each of them as ―monthly salary‖ and
―training allowance‖.
7.4. Both the counsels Sri Swapnil Roy and Sri Himansu
Sekhar Satapathy, learned Advocates appearing for the
opposite parties-employees, therefore, urged that the
petitioners are not entitled to be granted any relief as
prayed for.
8. Sri Saswat Das, learned Additional Government
Advocate advanced his argument by contradicting the
contention of Sri Agasti Kanungo, learned Advocate for
the petitioners that it is fallacious to say that the private
opposite parties appointed under the RA Rules, 1990,
having got trained for one year from 16.06.2008 to
15.06.2009, can be said to have joined in service on
15/16.06.2009 after completion of training, whereas the
petitioners have been re-designated and merged in the
Cadre of Forester on 10.02.2009 by virtue of the Odisha
Sub-ordinate Forest Service (Method of Recruitment and
Conditions of Service Foresters) Amendment Rules, 2009
vide Notification No.2F(F)-40/04-- 2330/F&E, dated
10.02.2009.
8.1. Amplifying his argument it is submitted that Rule 13 of
the RA Rules unequivocally percolates that seniority of
persons, appointed under these Rules, in the Grade or
Cadre of the service or posts in which the appointment is
made shall be fixed below the persons recruited and
appointed in that Grade or Cadre in that year as per the
provisions of the relevant recruitment Rules framed
under Article 309 of the Constitution of India. The
private opposite parties appointed under the RA Rules
being considered to have been appointed to the post of
Forester on 16.06.2008 (date of joining in the Training
School) their seniority has been shown ―below the
persons recruited and appointed in that Grade or Cadre
in that year‖, i.e., 2008. As the petitioners were re-
designated and their Cadre got merged with effect from
10.02.2009, i.e., subsequent to the year, 2008, they
cannot obviously be placed below the petitioners.
8.2. He supported the action of the opposite party Nos.1 and
2 and adopted the arguments advanced by Sri Swapnil
Roy and Sri Himansu Sekhar Satapathy, learned
Advocates for the opposite parties.
Analysis and discussions:
9. It is gathered from the arguments and submissions with
reference to the RA Rules that in terms of Rule 3 thereof
the assistance is applicable to a member of the family of
the Government servant who dies while in service.
9.1. Object of the RA Rules can be discerned from Rule 4
which stood as follows:
"4. Objective of the Scheme.--
The rehabilitation assistance is conceived as a
compassionate measure of saving the family of a
Government servant from immediate distress when
the Government servant suddenly dies while in
service. The concept is based on the premises that in
case of sudden death his family would not face
starvation. The scheme has a direct relationship
with the economic condition of the family of the
Government servant. Appointment of the family
member of the Government servant under these
rules shall be subject to the provisions contained in
Rule 9 and cannot be claimed as a matter of right.
9.2. Rule 9 of the RA Rules, 1990 dealing with Conditions of
service at the relevant point of time stood as follows:
"9. Conditions of service.--
(1) Appointment under these rules can be made only
against the posts required to be filled up by direct
recruitment and not against promotional posts.
(2) Subject to the provisions contained in sub-rule (3) the
applicant for appointment to a particular post, under
the rehabilitation assistance scheme, must have the
requisite qualifications as prescribed in the relevant
recruitment Rules (1) Resolutions or Instructions
regulating the recruitment to the said post.
(3) Where a widow of the deceased Government servant
is appointed on compassionate ground against a
Group D post, she is not required to satisfy the
educational qualification prescribed for the said
post, provided the duties attached to the post can be
satisfactorily performed without having the requisite
educational qualification.
(4) Family of a Government servant who dies while on
re-employment or extension of service, shall not be
eligible for any benefit under these rules.
(5) [***]
(6) Application for appointment under these rules shall
be considered if it is received within one year from
the date of death of the Government servant.
(7) If at the time of death of the Government servant,
there is ward who is minor and who alone is
available in the family of the deceased Government
servant for employment, he/she shall apply for job
under these rules on attaining the age of eighteen
years and in no case beyond three years from the
date of attaining the age of eighteen years.
(8) The assistance shall not be available to the families
of Government servants who died before issue of
Labour & Employment Department Resolution No.
17188, dated the 9th September 1976, in respect of
posts which are filled up by reference to the
Employment Exchange and before issue of G. A.
Department Resolution No. 21684-Gen., dated the
9th September 1982, in respect of posts filled up in
pursuance of provisions in the relevant service
Rules.
(9) In exceptional cases, the maximum age limit may be
relaxed by the competent authority in accordance
with provisions of the Orissa Service Code.
(10) Before issue of appointment order the appointing
authority shall ensure the production of the following
documents:
(i) Submission of Medical Certificate of Health,
(ii) Verification of Character and antecedents in
respect of appointments in Departments of
Government and Heads of Departments.
(iii) Character Certificates from two officers of
Government not below the rank of Group B
Government servant.
(iv) Submission of undertaking that he/she has
only one spouse living, if he/she is married.
(v) Submission of undertaking through affidavit to
the effect that he/she shall maintain the family
members of the deceased Government servant
excepting the member who is self sufficient as
an earner and who is otherwise separate from
the family after partition through a registered
deed or after marriage.
(11) Notwithstanding the period of limitation prescribed
in sub-rule (6) delay not exceeding twelve months in
submission of application for appointment under
these Rules may be condoned by the Administrative
Department and delay exceeding 12 months may be
condoned by the Chief Minister."
9.3. Careful reading of above provisions contained in RA
Rules manifestly provides that the appointment
(distinguished with the connotation of ―recruitment‖) is
given to the ―family members‖ as defined under Rule 2(b)
in order of preference as immediate succor to the family
whose bread-winner dies in harness. A Letter bearing
No.16838/SC/6-63/04(Pt-I)/(Gen), dated 21.07.2007 of
the General Administration Department specifies that:
"Appointment under Rehabilitation Assistance Scheme is
a welfare measure which enables the Government servant
to give his best to the Government service, sometimes
even at the cost of his health. Appointment under the
Scheme is not given as a matter of course. Fulfilment of
certain conditions as laid down under the rules and
instructions issued by the Government are prerequisites
for such consideration. Under this Scheme, it has been
thought of providing a sustainable and permanent
arrangement for the family facing a distress condition
arising out of the sudden death of the Government
servant while in service.
In view of the above, it has been decided by Government
that appointment under Rehabilitation Assistance Scheme
shall be made against a Group-C or Group-D post carrying
a regular scale of pay as provided under the Rules."
9.4. The Condition of service as per Rule 9 of the RA Rules
only speaks about production of certain documents.
Under such special provision the private opposite parties
have been appointed against the post of Forester. It is
more transparent from Instructions contained in Letter
bearing Memo No.21795/2F (NG)-301/2005, dated
17.10.2007 issued by the Conservator of Forest
(Administration) from the Office of the Principal Chief
Conservator of Forests, Odisha (Annexure-B/15 to the
counter affidavit), which inter alia specified that:
"4. While considering the case of the candidates for
appointment to the post of Foresters under R.A.
Scheme the appointing authorities should
scrupulously maintain the statutory provision made
under Rule 10 and Rule 14 of the Odisha Sub-
ordinate Forest Service (Method of Recruitment and
Conditions of Service Foresters) Rules, 1998 issued
vide Forest and Environment Department
Notification No.15043/F&E, dated 28.07.1998."
9.5. Rule 10 and Rule 14 of the Odisha Sub-ordinate Forest
Service (Method of Recruitment and Conditions of
Service Foresters) Rules, 1998 at the relevant point
stood as follows:
"10. Physical fitness.--
(1) The minimum physical standard of the candidate
shall be as follows for different categories:
Category Minimum height Minimum chest
of candidate in C.M. in C.M.
Un-expanded Expanded
(1) (2) (3) (4)
Scheduled Caste
3. Women 153 ... ...
(2) The candidates shall be examined by the Chief
Medical Officer of District to testify that they possess
sound health and general physical fitness for
arduous outdoor work essential for the service.
(3) The candidate must be of sound health, good
physique and active habits and be free from any
organic defect or bodily infirmity.
14. Educational qualification.--
A candidate must have passed +2 Science from a
recognized University/Institution."
9.6. It, thus, emerges from the Instruction in Letter bearing
Memo No.21795/2F (NG)-301/2005, dated 17.10.2007
issued by the Conservator of Forest (Administration)
from the Office of the Principal Chief Conservator of
Forests, Odisha read juxtaposed with Rules 10 and 14 of
the Odisha Sub-ordinate Forest Service (Method of
Recruitment and Conditions of Service Foresters) Rules,
1998 that for the purpose of appointment of Forester
under the Rehabilitation Assistance Scheme a candidate
is required to qualify the above criteria. Thus, it
entertains no doubt in mind that for appointment in the
said post training is not a sine qua non. However, the
candidate can have such training after being appointed
against the post of Forester subject to availability of seat.
If that be not the intended purport of appointment of
Forester under the Odisha Civil Services (Rehabilitation
Assistance) Rules, 1990, then it would frustrate the
pious obligation the Government, model employer, under
Rules 3 and 4 of said Rules.
9.7. In Steel Authority of India Limited Vrs. Madhusudan Das,
(2008) 14 SCR 824 it is observed that:
"16. It may be that such a provision was made as a
measure of social benefit but it does not lay down a
legal principle that the court shall pass an order to
that effect despite the fact that the conditions
precedent therefor have not been satisfied. This
aspect of the matter has been considered by this
Court in Umesh Kumar Nagpal Vrs. State of
Haryana and Others, (1994) 4 SCC 138 in the
following terms:
„As a rule, appointments in the public services
should be made strictly on the basis of open
invitation of applications and merit. No other mode of
appointment nor any other consideration is
permissible. Neither the Governments nor the public
authorities are at liberty to follow any other
procedure or relax the qualifications laid down by
the rules for the post. However, to this general rule
which is to be followed strictly in every case, there
are some exceptions carved out in the interests of
justice and to meet certain contingencies. One such
exception is in favour of the dependants of an
employee dying in harness and leaving his family in
penury and without any means of livelihood. In such
cases, out of pure humanitarian consideration taking
into consideration the fact that unless some source
of livelihood is provided, the family would not be
able to make both ends meet, a provision is made in
the rules to provide gainful employment to one of the
dependants of the deceased who may be eligible for
such employment. The whole object of granting
compassionate employment is thus to enable the
family to tide over the sudden crisis. The object is
not to give a member of such family a post much less
a post for post held by the deceased.‟
Yet again in General Manager (D&PB) Vrs. Kunti
Tiwary and Another, (2004) 7 SCC 271, this Court
noticed:
„6. The policy in question was framed by the
appellant Bank pursuant to the decision of this
Court in Umesh Kumar Nagpal Vrs. State of
Haryana, (1994) 4 SCC 138 where this Court
has said that appointment by way of
compassionate appointment is an
exception carved out of the general rule
for appointment on the basis of open
invitation of application and merit. This
exception was to be resorted to in cases of
penury where the dependants of an employee
are left without any means of livelihood and
that unless some source of livelihood was
provided a family would not be able to make
both ends meet.‟
[See also Punjab National Bank and Others Vrs.
Ashwini Kumar Taneja, (2004) 7 SCC 265.]
In Mohan Mahto Vrs. Central Coal Field Ltd., (2007)
8 SCC 549, this Court observed:
„14. In I.G. (Karmik) Vrs. Prahalad Mani Tripathi,
(2007) 6 SCC 162 this Court observed:
„6. An employee of a State enjoys a status.
Recruitment of employees of the State is
governed by the rules framed under a
statute or the proviso appended to Article
309 of the Constitution of India. In the
matter of appointment, the State is
obligated to give effect to the
constitutional scheme of equality as
adumbrated under Articles 14 and 16 of
the Constitution of India. All
appointments, therefore, must
conform to the said constitutional
scheme. This Court, however, while
laying emphasis on the said
proposition carved out an exception
in favour of the children or other
relatives of the officer who dies or
who becomes incapacitated while
rendering services in the Police
Department. See Yogender Pal Singh
Vrs. Union of lndia, (1987) 1 SCC 631.
7. Public employment is considered to be a
wealth. It in terms of the constitutional
scheme cannot be given on descent. When
such an exception has been carved out by
this Court, the same must be strictly
complied with. Appointment on
compassionate ground is given only for
meeting the immediate hardship which is
faced by the family by reason of the
death of the bread-earner. When an
appointment is made on compassionate
ground, it should be kept confined only to
the purpose it seeks to achieve, the idea
being not to provide for endless
compassion.
8. In National Institute of Technology Vrs.
Niraj Kumar Singh, (2007) 2 SCC 481 this
Court has stated the law in the following
terms:
„16. All public appointments must be in
consonance with Article 16 of the
Constitution of India. Exceptions
carved out therefore are the cases
where appointments are to be given
to the widow or the dependent
children of the employee who died in
harness. Such an exception is
carved out with a view to see that
the family of the deceased employee
who has died in harness does not
become a destitute. No appointment,
therefore, on compassionate ground
can be granted to a person other
than those for whose benefit the
exception has been carved out.
Other family members of the
deceased employee would not derive
any benefit thereunder.‟ ‟
15. In State Bank of India Vrs. Somvir Singh,
(2007) 4 SCC 778 this Court held:
„10. There is no dispute whatsoever that the
appellant Bank is required to consider the
request for compassionate appointment
only in accordance with the scheme
framed by it and no discretion as such is
left with any of the authorities to make
compassionate appointment dehors the
scheme. In our considered opinion the
claim for compassionate appointment and
the right, if any, is traceable only to the
scheme, executive instructions, rules, etc.
framed by the employer in the matter of
providing employment on compassionate
grounds. There is no right of whatsoever
nature to claim compassionate
appointment on any ground other than
the one, if any, conferred by the employer
by way of scheme or instructions as the
case may be.‟ ‟***"
9.8. All these judgments hint at one point that all the
appointments, therefore, must conform to the
constitutional scheme; nevertheless, an exception is
carved out in favour of the children or other relatives of
the officer who dies or who becomes incapacitated while
rendering services as Government servant.
9.9. In the present case, a contemporaneous document e.g.,
Annexure-C/2 enclosed to Additional Affidavit dated
04.12.2024 filed by the opposite party No.2, being sworn
to by the Assistant Conservator of Forests (Legal Cell)
reveals as follows:
"Office of the Conservator of Forests
Berhampur Circle
Memo No 4342/2F-(NG) 138/2008
Dated Berhampur the 11th June, 2008.
To
The Divisional Forest Officer-Cum-Director,
Nicholson Forest Training School, Champua.
Sub: Foresters‟ training at Nicholson Forest Training
School, Champua during the session commencing
from 16.06.2008.
Ref: Memo No.11176, dated 26.05.2008 of the Pr.C.C.F.,
Odisha
In inviting a kind reference to the above cited memo of the
Pr. Chief Conservator of Forests, Orissa on the subject, I
am directing the following two candidates selected for
appointment as Forester in this office under
Rehabilitation Assistance Scheme to report before you to
undergo the Forester‟s Training to be commenced from
16.6.2008:
1. Sri Umakanta Das
2. Sri Sidhartha Sankar Sahu.
It is requested to please report the date(s) of joining of the
above two candidates to this office.
Sd/- 10.06.2008
Conservator of Forests
Berhampur Circle."
9.10. Being selected for appointment under the RA Rules to
the post of Forester, the private opposite parties have
been instructed to undergo training. At this juncture, it
is apt to have reference to Rule 20 of the Odisha Sub-
ordinate Forest Service (Method of Recruitment and
Conditions of Service Foresters) Rules, 1998, which
reads as follows:
"20. Training.--
On preparation of select list for various categories of
candidates Conservator of Forests, Development
Circle for allotment of seats in the training
institutions."
9.11. As is manifest from the above process of training, it is
without any ambiguity depicts that candidate to undergo
training is required to be allotted seat in the training
institution. The communications through the Division or
Circle for joining the training to the individual private
opposite party by the authority concerned does percolate
a sense that the private opposite parties were posted in
such Division or Circle and relieved for the purpose of
joining the Nicholson Forest Training School, Champua,
District: Keonjhar.
9.12. This apart, the RA Rules speaks about ―appointment‖,
but not ―recruitment‖ and appointment under the RA
Rules is an exception to regular recruitment process.
This aspect has been lucidly discussed in Prafulla Kumar
Swain Vrs. Prakash Chandra Misra, (1993) 1 SCR 241
with the following observation:
"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. 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."
9.13. By Letter in Memo No.18172-- 2F(NG)-38/08, dated
26.05.2008, the Chief Conservator of Forests
(Administration) requested the Conservator of Forests as
follows:
"I am directed to enclose herewith a list of 47 candidates
comprising 19 RA Scheme candidates, 3 contractual
candidates and 25 promotee Foresters of the Department
in Annexure-A for undergoing Foresters‟ training during
the session commencing from 16.06.2008 at Nicholson
Forest Training School, Champua, District: Keonjhar.
Accordingly, steps may please be taken to issue
appropriate instruction to the concerned Divisional Forest
Officers under your control for intimating the candidates/
promote Foresters so as to enable them to join the training
school in time, after observing all formalities as required
under Rules in vogue and Government Circulars issued
from time to time. ***"
9.14. It is evident from said letter that the Divisional Forest
Officers are to impart instructions to such candidates to
undergo training. With the above understanding of
connotation of the terms ―recruitment‖ and
―appointment‖, it is explicit that the appointees in the
post of Foresters, having not undergone training prior to
posting and/or joining in the respective positions, were
required to join such Training School with effect from
16.06.2008. It is evident from the letters of the Chief
Instructor, Nicholson Forest School, Champua
addressed to the Divisional Forest Officer/ Conservator
of Forests (enclosures at Annexure-F/15 series of the
counter affidavit filed by the private opposite parties)
that the named Foresters of the Division/Circle have
joined the training programme.
9.15. It is not the case of the petitioners that the private
opposite parties were not found to have complied with
the requirements under RA Rules or the Odisha Sub-
ordinate Forest Service (Method of Recruitment and
Conditions of Service Foresters) Rules, 1998. It is only
objection of the petitioners that the private opposite
parties having completed the training on 15.06.2009,
said date ought to be reckoned as their joining in the
post, but not 16.06.2008 as shown in the Service Book,
being the date of joining the Training School. Such a
stance of the counsel for the petitioners deserves to be
repelled in view of the fact that the RA Rules
contemplates ―appointment‖, but not ―recruitment‖.
9.16. It is evident from a harmonious reading of provisions
contained in the RA Rules and the Odisha Sub-ordinate
Forest Service (Method of Recruitment and Conditions of
Service Foresters) Rules, 1998 as amended in the year
2009, that the appointment of private opposite parties
under the RA Rules, which has overriding effect by
virtue of Rule 15 thereof, is not conditioned by
completion of the training. The provisions of the Rules
referred to above are silent about such aspect as
contended by the petitioners. After being appointed in
terms of the RA Rules and having eligibility criteria
specified in the the Odisha Sub-ordinate Forest Service
(Method of Recruitment and Conditions of Service
Foresters) Rules, 1998, the Foresters-candidates can be
allowed to undergo training.
9.17. Now, therefore, only question remains for examination
as to whether the date of joining the Training School,
i.e., 16.06.2008, would be treated to be the date of
appointment of such employees.
10. It is gainsaid by the petitioners that the period of
training cannot be taken as date of appointment of the
private opposite parties. However, there is no dispute
that the private opposite parties having completed
training successfully rejoined in the service as Foresters
in their respective Divisions/Circles.
10.1. Minute scrutiny of Service Book reveals that pursuant to
Instruction dated 13.04.2017, the date of entry into the
Government service of the opposite parties have been
taken as ―16.06.2008‖. Said Instruction in Letter dated
13.04.2017 has been superseded by Letter dated
31.03.2019 issued by the Forest and Environment
Department. Therefore, action taken bona fide on the
basis of extant Instructions cannot be reviewed or
revised at a distance of time when subsequent
promotions to the higher rank have been accorded to
such employees.
10.2. What can be understood from the Affidavit dated
20.03.2025 sworn to by the petitioner No.1 that the
Instruction dated 13.04.2017 (Annexure-6) being
superseded by virtue of another Instruction dated
31.03.2019 issued by the Forest and Environment
Department, the seniority of the private opposite parties
required recast taking into consideration Rule 13 of the
RA Rules. What is essentially argued by Sri Agasti
Kanungo, learned Advocate that the action of the
authorities taken based on the extant Instruction dated
13.04.2017, after being superseded the seniority lists
vide Memo dated 08.11.2016 (Annexure-4) and Memo
dated 24.06.2017 (Annexure-7) are to be redrawn.
10.3. So far as the plea of the petitioners as regards selection
list published in the year 2016 is concerned, it seems to
be inept. Though the seniority list vide Annexure-4
sought to be modified by way of prayer in the writ
petition, as the same was not questioned at the first
opportune time within close proximity of its publication,
such a prayer at this distance of time cannot be acceded
to. In this connection it cannot be gainsaid that lack of
diligence or belated approach to the authority, the
Tribunal or the Court may entail rejection of claim.
10.4. In K.R. Mudgal Vrs. R.P. Singh, (1986) 3 SCR 993 a
reference to the following observation made way back in
1975, in the case of Maloon Lawrence Cecil D'Souza Vrs.
Union of India, (1975) Supp. SCR 409 has been made:
"Although security of service cannot be used as a shield
against administrative action for lapse of a public servant,
by and large one of the essential requirements of
contentment and efficiency in public services is a feeling
of security. It is difficult to doubt to guarantee such
security in all its varied aspects. It should at least be
possible to ensure that matters like one‟s position in the
seniority list after having been settled for once should not
be liable to be reopened after lapse of many years at the
instance of a party who has during the intervening period
chosen to keep quiet. Raking up old matters like seniority
after a long time is likely to result in administrative
complications and difficulties. It would, therefore, appear
to be in the interest of smoothness and efficiency of
service that such matters should be given a quietus after
lapse of some time."
10.5. This Court refers to the case of B.S. Bajwa Vrs. State of
Punjab, (1997) Supp.6 SCR 451, wherein it has been laid
down that in service matters the question of seniority
should not be re-opened after the lapse of a reasonable
period because that results in disturbing the settled
position which is not justifiable. This alone was
sufficient to decline interference under Article 226 and
to reject the writ petition.
10.6. In P.S. Sadasivaswamy Vrs. State of Tamil Nadu, (1975)
2 SCR 356, the claim of the writ petitioner was rejected
on the ground that it had the effect of unscrambling the
scrambled egg, for he had approached the Court after
nearly 14 years and observed that:
"It is not that there is any period of limitation for the
Courts to exercise their powers under Article 226 nor is it
that there can never be a case where the Courts cannot
interfere in a matter after the passage of a certain length
of time. But it would be a sound and wise exercise of
discretion for the Courts to refuse to exercise their extra-
ordinary powers under Article 226 in the case of persons
who do not approach it expeditiously for relief and who
stand by and allow things to happen and then approach
the Court to put forward stale claims and try to unsettle
settled matters. The petitioner‟s petition should, therefore,
have been dimissed in limine."
10.7. This Court is not oblivious of position with regard to
interference with the seniority list challenged with delay
as discussed in Ajay Kumar Shukla Vrs. Arvind Rai,
(2021) 12 SCR 1178. The Hon'ble Supreme Court of
India in the said case observed as follows:
"21. We may now discuss the law on the point regarding
delay in approaching the court and in particular
challenge to a seniority list. The learned Single
Judge had placed reliance on a judgment of this
Court in the case of Shiba Shankar Mohapatra Vrs.
State of Orissa, (2009) 15 SCR 866. Dr. B.S.
Chauhan, J., after considering the question of
entertaining the petition despite long standing
seniority filed at a belated stage discussed more
than a dozen cases on the point including
Constitution Bench judgments and ultimately in
paragraph 30 observed that a seniority list which
remains in existence for more than three to four
years unchallenged should not be disturbed. It is
also recorded in paragraph 30 that in case someone
agitates the issue of seniority beyond period of three
to four years he has to explain the delay and laches
in approaching the adjudicatory forum by furnishing
satisfactory explanation. Paragraph 30 is
reproduced below:
„30. Thus in view of the above, the settled legal
proposition that emerges is that once the
seniority had been fixed and it remains in
existence for a reasonable period, any
challenge to the same should not be
entertained. In K.R. Mudgal (supra), this Court
has laid down, in crystal clear words that a
seniority list which remains in existence for 3
to 4 years unchallenged, should not be
disturbed. Thus, 3-4 years is a reasonable
period for challenging the seniority and in case
someone agitates the issue of seniority beyond
this period, he has to explain the delay and
laches in approaching the adjudicatory forum,
by furnishing satisfactory explanation.‟
22. On the other hand, the Division Bench while shutting
out the appellants on the ground of delay relied upon
following judgments of this Court:
Dayaram Asanand Gursahani Vrs. State of
Maharashtra and others, (1984) 3 SCC 36;
B.S. Bajwa and another Vrs. State of Punjab and
others, (1998) 2 SCC 523;
Malcom Lawrence Cecil D‟Souza Vrs. Union of India
and others, (1976) 1 SCC 599;
R.S. Makashi and others Vrs. I.M. Menon and others,
(1982) 1 SCC 379.
23. In the case of Dayaram Asanand Gursahani (supra),
there was a delay of 9 years. In the case of B.S.
Bajwa (supra), there was a delay of more than a
decade. In Malcom Lawrence Cecil D‟Souza (supra),
the delay was of 15 years and in R.S. Makashi
(supra) there was a delay of 8 years. In all these
cases, this court has recorded that the delay has not
been explained. Shiba Shankar Mohapatra (Supra)
is a judgment of 2010, which has laid down that,
three to four years would be a reasonable period to
challenge a seniority list and also that any challenge
beyond the aforesaid period would require
satisfactory explanation.
24. In view of the above legal proposition, we now
examine the facts of the present case, firstly, as to
whether there was delay of more than three to four
years and secondly, if there was delay of more than
three to four years, whether the same has been
satisfactorily explained.
25. In October, 2001, when the appointment letters were
issued it carried a stipulation that the seniority
would be determined later on as per rules. It is an
admitted position that before 2006, the seniority list
of the appellants was not notified. In March, 2006,
when the tentative list was published, it did not
mention about the three select lists nor was this fact
mentioned when the final seniority list was
published on 05.09.2006. Rather, it clearly
mentioned that the seniority list had been prepared
on the basis of merit. This was in fact an incorrect
statement. The seniority list had not been prepared
on the basis of merit but on the basis of receipt of the
three separate select lists one after the other. As the
Agricultural list was received first on 28.09.1999, all
the selected candidates of agricultural stream were
en bloc placed on the top, thereafter the Mechanical
list was received on 06.01.2000, they were placed
below the Agricultural stream and lastly, the Civil
stream list was received on 07.11.2000, they were
placed at the end.
26. Rules 5 and 8 of Rules 1991 clearly mention that
there shall be one list for one selection of direct
recruits. Creating three separate lists for one
selection was contrary to the provisions contained in
Rules 5 and 8 of Rules 1991. Rules 2009 clearly
mention that seniority would be determined and
prepared as per 1991 Rules. Rule 5 of Rules 1991,
dealt with the selections made only through direct
recruitment whereas Rule 8 thereof dealt with the
situation where seniority list is to be prepared of
both the direct recruits and the promotees. However,
the principles underlined in both these Rules are the
same that there has to be one list for one selection,
as is clear from Rule 8(2)(a) and Rule 5 of Rules,
1991.
27. Once it is established that the seniority list was
prepared in contravention to the statutory provisions
laid down in Rules 1991, the seniority list could be
interfered with. The Appointing Authority would be
bound by the statutory rules and any violation or
disregard to the statutory rules would vitiate the
seniority list. The same would be arbitrary, de hors
the rules and in conflict with Articles 14 and 16 of
the Constitution. The only exception to the above
would be where there is unreasonable delay which
is unexplained."
10.8. When the present matter is considered in the aforesaid
light so far as challenge to the seniority list published in
in the year 2016 vide Annexure-4, nothing is spelt out in
the petition as to the delay in questioning the seniority
list published in 2016. The petitioners in the instant
case sought to challenge the seniority list of the year
2016, after seniority list published in the year 2017.
Such unexplained delay in seeking to quash seniority
list vide Annexure-4 would desist this Court from
considering the plea of the petitioners.
10.9. So far as claim of erroneous seniority list contained in
Memo dated 24.06.2017 (Annexure-7) is concerned, it is
the submission of the learned counsel for the petitioners
that the Forest and Environment Department Letter
dated 13.04.2017 being superseded by virtue of
Instruction vide Letter dated 31.03.2019, the seniority
list does require reconsideration. This Court for the
reasons cited infra refuses to grant relief to the
petitioners.
10.10. Scrutiny of seniority list published vide Letter in
Memo No.14814/2F(NG)-53/ 2017, dated 24.06.2017
(Annexure-7) issued from the State Forest Headquarters,
Odisha, Office of the Principal Chief Conservator of
Forests, which is sought to be quashed by the
petitioners, ex facie manifests the following facts:
"As per direction of Hon‟ble Tribunal, Cuttack on Order
dated 12.04.2017 passed in O.A. No.2211(C)/2016,
No.2212(C)/2016, No.2213(C)/2016, No.2214(C)/2016,
No.2237(C)/2016, No.2238(C)/2016, No.2253(C)/2016,
No.2273(C)/2016, No.2287(C)/2016, No.2888(C)/2016
and Forest and Environment Department Notification
No.12611/F&E, dated 12.06.2017, the revised Gradation
List of Foresters (As on 17.06.2017) is communicated
herewith for further necessary action."
10.11. Acceding to the prayer to quash the selection list
vide Annexure-7 would tantamount to tinker with the
order of the learned Odisha Administrative Tribunal,
which attained finality inasmuch as no material has
been placed by the counsel for the petitioners that said
decision has been quashed/varied by any higher forum.
Having not questioned said order of the learned Odisha
Administrative Tribunal, it would be judicial impropriety
to take a different view and that would unsettle the
position. It emanates from the Service Book that the
appointing authority has corrected the date of entry into
the Government service with respect to Foresters
appointed under the RA Rules by taking into account
date of commencement of training.
10.12. Much stress has been laid by Sri Agasti Kanungo,
learned Advocate for the petitioners on the Instruction
vide Letter dated 31.03.2019 having superseded earlier
Instruction vide Letter dated 13.04.2017. However, Sri
Swapnil Roy, learned Advocate for the private opposite
parties has brought on record following Instruction
issued subsequent to said Letter dated 31.03.2019 by
way of affidavit dated 06.04.2015:
"Government of Odisha
Forest and Environment Department
***
No.FE-FE3-FE-0165-2017-- 10225/F&E.,
dated. 27.05.2019
From:
Sri Amarendranath Sahoo,
Deputy Secretary to Government.
To
The Principal Chief Conservator of Forests, Odisha
Bhubaneswar.
Sub.: Fixation of Seniority of Foresters in different
Divisions appointed under Rehabilitation Assistance
Scheme.
Ref.: Your Office Letter No.7724, dated 17.04.2019
Sir,
In supersession of this Department Letter No.6613,
dated 31.03.2019 on the subject noted above, I am
directed to say that the earlier instructions have
issued vide this Department Letter No.7420 dated
13.04.2017, fixing the seniority of Foresters
appointed under Rehabilitation Assistance Scheme
from the date of joining in the training or in the
Division whichever is earlier is allowed with the
stipulation that the seniority of Foresters appointed
under Rehabilitation Assistance Scheme shall be
fixed below the direct recruit Foresters of the
same calendar year, irrespective of completion
of their training.
Yours faithfully
Sd/- 27.05.2019
Deputy Secretary
to Government."
10.13. Despite service of copy of said affidavit along with
said Instruction dated 27.05.2019 filed by the private
opposite parties on the learned counsel for the
petitioners, the same remained unchallenged. Therefore,
this Court finds force in the submission of Sri Swapnil
Roy, learned Advocate that the seniority list vide Memo
dated 24.06.2017 (Annexure-7) being in consonance
with the Guidelines contained in the Instruction dated
27.05.2019 issued in tune with Rule 13 of the RA Rules
needs no intervention.
10.14. In Ashok Ram Parhad Vrs. State of Maharashtra,
(2023) 2 SCR 900 it has been exposited that:
"25. In service jurisprudence, the service Rules are liable
to prevail. There can be Government Resolutions
being in consonance with or expounding the Rules,
but not in conflict with the same. On having set forth
this general proposition, we now examine the
scenario of the Rules as prevalent. If we turn to the
statutory Rules framed under Article 309 of the
Constitution, i.e., the 1984 Rules, Rule 2 refers to the
appointment to the post of the DFO and the same to
be made by promotion from amongst officers of the
Maharashtra Forest Service and also by
appointment directly. The Proviso to Rule 2 of the
1984 Rules is unambiguous and quite clear, i.e., the
period spent on training at Government Forest
Colleges and other period of probation including
extended period of probation, if any, "shall not be
counted towards the requisite period of service."
Thus, what is envisaged is that the appointment is
different from the recruitment process, which starts
with the commencement of training. There can be
possibilities of a candidate not completing the
training satisfactorily, thereby resulting in the
candidate‟s removal on probation. Such probation
period can also be extended to see whether a
candidate improves in performance. (Hence, even if
the Government Resolution dated 25.01.1990
upgraded the post of ACF from Class II to Class I,
the Proviso to Rule 2 of the 1984 Rules will continue
to hold valid in determining the period of service.)"
10.15. Such is not the situation in the instant matter.
There is no inhibition found place in Rule 24 of the
Orissa Subordinate Forest Service (Method of
Recruitment and Conditions of Service of Foresters)
Rules, 1998 that the training period shall not be counted
for the purpose of determining the date of entry into
service or seniority.
10.16. This Court seeks to have reference to provisions of
Rule 13 and Rule 15 of the RA Rules, which read as
follows:
"13. Seniority of persons, appointed under these Rules, in
the grade or cadre of the service or posts in which
the appointment is made shall be fixed below the
persons recruited and appointed in that Grade or
Cadre in that year as per the provisions of the
relevant recruitment rules framed under Article
309 of the Constitution and in other cases according
to their date of joining in the post.
14. Interpretation.--
If any question arises relating to the interpretation of
any provision of these Rules, it shall be referred to
the Government in General Administration
Department for a decision.
15. The provision of these Rules shall have effect
notwithstanding anything to the contrary in any
other recruitment rules made under the proviso to
Article 309 of the Constitution including the Orissa
ex-Servicemen (Recruitment to the State Civil
Services and Posts) Rules, 1985."
10.17. Rule 13 of the RA Rules makes it clear that
seniority of Foresters appointed under the RA Rules
would have to be fixed below the persons recruited and
appointed in that year. Instruction dated 27.05.2019 of
the Forest and Environment Department clarified the
position that the seniority of Foresters appointed under
Rehabilitation Assistance Scheme shall be fixed below
the direct recruit Foresters of the same calendar year,
irrespective of completion of their training. Rule 4 of the
Odisha Sub-ordinate Forest Service (Method of
Recruitment and Conditions of Service Foresters) Rules,
1998 as amended by virtue of the Odisha Sub-ordinate
Forest Service (Method of Recruitment and Conditions of
Service Foresters) Amendment Rules, 2009 envisages
that "by way of re-designation and merger of the existing
Cadre of Village Forest Workers (VFWs) as one-time
arrangement and the VFWs so merged shall not be
treated as direct recruits or promotees to the Cadre of
Foresters". In such view of the matter, since the
petitioners were VFWs and merged in the Cadre of
Foresters with effect from 10.02.2009 could not be
treated to be direct recruits or promotees. Since the
private opposite parties have joined the training on
16.06.2008, irrespective of completion of training, they
are seemly placed below the direct recruits and
promotees in the Cadre of Foresters in the year 2008. As
the petitioners have been re-designated and the Cadre of
VFWs, being merged in the Cadre of Foresters in the
year 2009, the claim of the petitioners that the private
opposite parties could not have marched over them does
not hold water.
10.18. Reading of Rule 15 of the RA Rules would bolster
the arguments advanced by Sri Swapnil Roy, learned
Advocate. The provisions of the RA Rules shall have
overriding effect over any contrary provision contained in
recruitment Rules made under the proviso to Article 309
of the Constitution of India, i.e., the Odisha Sub-
ordinate Forest Service (Method of Recruitment and
Conditions of Service Foresters) Rules, 1998. As the
appointments of the private opposite parties being made
under the RA Rules (framed in exercise of powers
conferred by proviso to Article 309 of the Constitution of
India) against the post of Foresters in the year 2008,
with effect from 16.06.2008 (i.e., date of joining in the
Training School), in view of clarificatory Instruction in
Letter dated 27.05.2019 read with Rules 13 and 15 of
the RA Rules no relief can be granted to the petitioners.
11. To have clarity with respect to determination of inter se
seniority, it is apposite to refer to the following summary
as culled in V. Vincent Velankanni Vrs. Union of India,
(2024) 10 SCR 126:
"33. This Court summarised the legal principles with
regard to the determination of seniority in Pawan
Pratap Singh and Others Vrs. Reevan Singh and
Others, (2011) 2 SCR 831 in the following terms:
„45. From the above, the legal position with regard
to determination of seniority in service can be
summarised as follows:
(i) The effective date of selection has to be
understood in the context of the service rules
under which the appointment is made. It may
mean the date on which the process of
selection starts with the issuance of
advertisement or the factum of preparation of
the select list, as the case may be.
(ii) Inter se seniority in a particular service has to
be determined as per the service rules. The
date of entry in a particular service or the date
of substantive appointment is the safest
criterion for fixing seniority inter se between
one officer or the other or between one group of
officers and the other recruited from different
sources. Any departure therefrom in the
statutory Rules, executive instructions or
otherwise must be consistent with the
requirements of Articles 14 and 16 of the
Constitution.
(iii) Ordinarily, notional seniority may not be
granted from the backdate and if it is done, it
must be based on objective considerations and
on a valid classification and must be traceable
to the statutory Rules.
(iv) The seniority cannot be reckoned from the date
of occurrence of the vacancy and cannot be
given retrospectively unless it is so expressly
provided by the relevant service rules. It is so
because seniority cannot be given on
retrospective basis when an employee has not
even been borne in the cadre and by doing so it
may adversely affect the employees who have
been appointed validly in the meantime."
11.1. To buttress his argument that the employees appointed
under the RA Rules are to be placed below the Foresters
borne in the Cadre by virtue of the Odisha Sub-ordinate
Forest Service (Method of Recruitment and Conditions of
Service Foresters) Amendment Rules, 2009, Sri Agasti
Kanungo, learned Advocate placed heavy reliance on the
decision rendered by the Hon'ble Supreme Court of India
in the case of State of Bihar Vrs. Arbind Jee, (2021) 9
SCR 47. Said reported decision lays down the legal
position as follows:
"10. As earlier noted, the respondent entered service only
on 10.2.1996 and yet under the impugned judgment,
the High Court directed counting of his seniority from
20.11.1985 when he was not borne in service. The
jurisprudence in the field of service law would
advise us that retrospective seniority cannot be
claimed from a date when an employee is not even
borne in service. It is also necessary to bear in
mind that retrospective seniority unless
directed by court or expressly provided by the
applicable Rules, should not be allowed, as in
so doing, others who had earlier entered
service, will be impacted.
11. To challenge the conferment of retrospective
seniority, the learned counsel for the appellant has
cited Shitla Prasad Shukla Vrs. State of UP and Ors.,
(1986) (Supp.) SCC 185 where this court speaking
through Justice M. P. Thakkar rightly held that:
„10. *** The late comers to the regular stream
cannot steal a march over the early
arrivals in the regular queue. On principle
the appellant cannot therefore succeed. What is
more in matters of seniority the Court does not
exercise jurisdiction akin to appellate
jurisdiction against the determination by the
competent authority, so long as the competent
authority has acted bona fide and acted on
principles of fairness and fair play. In a
matter where there is no rule or
regulation governing the situation or
where there is one, but is not violated, the
Court will not overturn the determination
unless it would be unfair not to do so. ***‟
12. The principles enunciated in Shitla Prasad Shukla
(supra) are applicable to the case at hand. The
compassionate appointment of the respondent is not
being questioned here but importantly he is claiming
seniority benefit for 10 years without working for a
single day during that period. In other words,
precedence is being claimed over other regular
employees who have entered service between 1985
to 1996. In this situation, the seniority balance
cannot be tilted against those who entered service
much before the respondent. Seniority benefit can
accrue only after a person joins service and to say
that benefits can be earned retrospectively would be
erroneous. Such view was expressed in many cases
and most recently in Ganga Vishan Gujrati And Ors.
Vrs. State of Rajasthan and Ors., (2019) 16 SCC 28.
Justice Dr. D.Y. Chandrachud speaking for the Court
opined as under:
„41. A consistent line of precedent of this Court
follows the principle that retrospective
seniority cannot be granted to an
employee from a date when the employee
was not borne on a Cadre. Seniority
amongst members of the same grade has
to be counted from the date of initial entry
into the grade. This principle emerges from
the decision of the Constitution Bench of this
Court in Direct Recruit Class II Engineering
Officers‟ Association Vrs. State of Maharashtra,
(1990) 2 SCC 715. The principle was reiterated
by this Court in State of Bihar Vrs. Akhouri
Sachindra Nath, 1991 Supp. (1) SCC 334 and
State of Uttaranchal Vrs. Dinesh Kumar
Sharma, (2007) 1 SCC 683.‟
13. The learned counsel for respondent relies on C.
Jayachandran Vrs. State of Kerala, (2020) 5 SCC
230, to argue for retrospective seniority. The bench
speaking through Justice Hemant Gupta in the
context of a diligent litigant observed that:
„41. *** The appellant has submitted the
representation on 11.04.2012 i.e. within 1 year
and 2 months of his joining and submitted
reminder on 18.09.2014. It is the High Court
which has taken time to take a final call on the
representation of the appellant and other direct
recruits. The appellant was prosecuting his
grievances in a legitimate manner of redressal
of grievances. Therefore, it cannot be said that
the claim of the appellant was delayed as he
has not claimed the date of appointment as
30.03.2009. The appellant having been
factually appointed vide communication dated
22.12.2010, he could not assume or claim to
assume charge prior to such offer of
appointment. The appellant has to be granted
notional seniority from the date the other
candidates were appointed in pursuance of the
same select list prepared on the basis of the
common appointment process.‟
As can be seen from the above extracted passage,
the benefit of notional seniority was claimed within
1 year from date of actual appointment. This was
also a case where the contesting parties were
recruited through a common competitive process. But
the present is not a case of recruitment by selection
and is a compassionate appointment made on this
court‟s order. The court‟s direction to the State was
to appoint within 1 month without specifying that the
appointment should have a retrospective effect. The
respondent never raised any claim for relating his
appointment to an earlier date from this Court. Post
appointment, he never raised any grievance within
reasonable time, for fixing his date of appointment
as 20.11.1985. Six years later, only on 10.09.2002,
he made a representation and the same was
rejected with the observation that on 01.08.1985,
the respondent was yet to enter service. Proceeding
with these facts, it is clearly discernible that the
respondent has slept over his rights, and never
earlier pointedly addressed his present claim either
to the Supreme Court (in the earlier round) or to the
State, soon after his appointment. Moreover, his was
a compassionate appointment without any element
of competitive recruitment where the similarly
recruited has stolen a march over him. Therefore, the
ratio in C. Jayachandran (supra) will be of no
assistance to the respondent as that case is
distinguishable on facts.
14. The records here reflects that the State have
faithfully implemented the direction issued by this
Court and appointed the respondent. Moreover, the
action of the authorities in determination of the
respondent‟s seniority from the date of entering
service is found to be consistent with the applicable
laws. There could be individual cases where a
bunch of applicants are recruited through a common
competitive process but for one reason or another,
one of them is left out while others get appointed.
When the denial of analogous appointment is
founded to be arbitrary and legally incorrect, the
benefit of notional seniority may be conferred on the
deprived individual. However, the present is not a
case of that category."
11.2. Said reported decision in Arbind Jee (supra) being
factually distinguishable cannot aid the cause or plea of
the petitioners. Six years of joining in service
retrospective seniority was claimed by Arbind Jee and
refusal to accede to the same, challenge was made. The
Hon'ble Supreme Court of India in unequivocal terms
expounded that retrospective seniority cannot be
accorded as Arbind Jee did not work for a single day for
10 years. Nevertheless, in the present matter, it is not in
dispute that the private opposite parties did join the
service as Foresters before completion of training under
the RA Rules. It is asserted by the private opposite
parties that ―during the training period, they were paid
with the salary component‖, which fact is evident from
communication made under Annexure-F/15. On cursory
glance at said annexure, it is clearly understood that the
Chief Instructor of Nocholson Forest Institute requested
for sending monthly salary of Forester by Conservator of
Forests through bank draft. This fact is not denied by
the petitioners by placing any cogent evidence. It is not
the case of the petitioners that the appointment letters
in favour of the private opposite parties were issued after
completion of training.
11.3. It is apposite to quote the following precept contained in
Union of India Vrs. Arulmozhi Iniarasu, (2011) 7 SCC 397:
"Before examining the first limb of the question,
formulated above, it would be instructive to note, as a
preface, the well settled principle of law in the matter of
applying precedents that the Court should not place
reliance on decisions without discussing as to how the
fact situation of the case before it fits in with the fact
situation of the decision on which reliance is placed.
Observations of Courts are neither to be read as Euclid's
theorems nor as provisions of Statute and that too taken
out of their context. These observations must be read in
the context in which they appear to have been stated.
Disposal of cases by blindly placing reliance on a decision
is not proper because one additional or different fact may
make a world of difference between conclusions in two
cases."
11.4. In the present case, the private opposite parties have
worked as Foresters in the Division/Circle and were
drawing salary even during the period of their training
(vide Annexure-F/15 series).
11.5. As has already been stated that the clarificatory
Instruction dated 27.05.2019 being in consonance with
Rule 13 and the date of entry into the Government
service by the private opposite parties were taken as
―16.06.2008‖, i.e., earlier to the petitioners, who were
brought into the Cadre of Foresters in the year 2009,
and are considered neither direct recruits nor the
promotees in view of Rule 4 of the Odisha Sub-ordinate
Forest Service (Method of Recruitment and Conditions of
Service Foresters) Rules, 1998 as amended in the year
2009, there is no infirmity nor illegality in placing the
private opposite parties at appropriate places in the
gradation/seniority list published in the year 2017
(Annexure-7).
11.6. Pertinent here to have regard to the following dicta of the
Hon'ble Supreme Court of India laid down in the case of
K. Anjaneyulu Vrs. T. Ashok Raju, (2019) 20 SCC 677 in
the context of determination of seniority:
"5. As per MS 57, on 14.05.1992 L.D.Cs, Typists and
Computer Operators were added to category 4(b)
and since then the applicability of Regulation 26
became impossible. In that context, the Board has
issued a Memo dated 02.04.1994. According to the
official correspondents without the said Memo the
combined seniority could not have been drawn. As
per Section 79 of the Electricity Supply Act, the
Board has power to issue regulations in the form of
notifications. The Memo dated 02.04.1994 was
issued by the Board in exercise of its power
conferred on it under Section 79 of the Electricity
Supply Act. The Memo dated 16.02.2002 issued by
the NPDC was only follow up of the said approved
memo dated 02.04.1994 and solely made for proper
implementation of the same which was required for
making of an integrated seniority list.
6. The grievance of the appellants is that the seniority
has to be fixed as per Regulation 26. Regulation 26
does not deal with inter se seniority. As far as
L.D.Cs are concerned, L.D.Cs posted in the account
section and various other Sections are required to
undergo training before commencement of probation
as against others posted to General and Personnel
Sections. Merely because they were required to
undergo training, their seniority cannot be
counted from the date they have joined post
after completion of training. If their date of the
joining in the post after completion of training
is taken into account for counting of their
seniority it would cause serious hardship to
them.
7. In the impugned Judgment, the High Court has held
that there is no regulation dealing with integrated
seniority list either under the general regulations or
the special regulations and, therefore, Memo dated
02.04.1994 was issued by the erstwhile APSEB for
the preparation of the integrated seniority list. The
Memo dated 16.07.2002 is only a follow up of Memo
dated 02.04.1994 which was the clarification issued
by the erstwhile APSEB.
8. Relevant portion of the impugned judgment of the
Division Bench of the High is extracted hereunder:
„27. To sum up there is no regulation dealing with
integrated seniority list either under the
general regulations and special regulations,
therefore, under Memo dated 02.04.1994 the
erstwhile APSEB issued guidelines for
preparation of integrated seniority list. We do
not see how this conflicts with Regulation 26. A
comprehensive reading of Regulations 10(8) (a),
23(a) and 8 would make apparently clear that
the appointing authority has to fix the date of
commencement of probation while integrating
various cadres and preparing inter se seniority
list. It did so by including the training period
also by exercising its statutory powers under
Regulation 25(a) and (b). The Board has to
prepare the list of approved candidates
for appointment or promotion. When there
is reasonable/rationale basis for
exercising the discretion under Regulation
25(a) by appointing authority, without
contravening any of the Regulations, the
list cannot be invalidated on the ground
that the procedure contemplated under
Section 79(c) of Electricity (Supply) Act,
1948 (in not publishing in the Gazette)
was not followed.‟
9. We are in agreement with the view taken by the
Division Bench and we do not find any ground to
interfere with the impugned order(s)."
11.7. Having glance at prayers made/reliefs claimed by the
petitioners in the writ petition, it is evident that
gradation (seniority) lists dated 08.11.2016 (Annexure-4)
and dated 24.06.2017 (Annexure-7) are sought to be
rectified by quashing Instruction dated 13.04.2017
(Annexure-6) issued by the Forest and Environment
Department. Since said Instruction dated 13.04.2017
has been superseded by Instruction dated 31.03.2019,
this Court does not feel it expedient to intervene in the
matter. Furthermore, as has already observed that the
seniority list as published in the year 2017 taking into
account the order of the learned Odisha Administrative
Tribunal which attained finality, no relief as prayed for
by the petitioners in this regard can be granted.
CONCLUSION:
12. Since Instruction in Letter dated 13.04.2017 (Annexure-
6) has been superseded by Instruction in Letter dated
31.03.2019, the prayer of the petitioners to quash said
instruction does not survive for adjudication. However,
in pursuance of said Instruction in Letter dated
13.04.2017, the seniority lists were prepared.
12.1. This Court having perused the subsequent Instruction
vide Letter dated 27.05.2019, finds that the same is in
conformity with Rule 13 of the RA Rules. Rule 15 of the
RA Rules having overriding effect on the Odisha Sub-
ordinate Forest Service (Method of Recruitment and
Conditions of Service Foresters) Rules, 1998 as amended
in the year 2009, it cannot be said that the fixation of
seniority was erroneous by counting period of training
for the purpose of determining entry into the
Government service as Foresters.
12.2. The seniority list vide Letter dated 08.11.2016
(Annexure-4) having not been challenged earlier to
publication of seniority list in Letter dated 24.06.2017
(Annexure-7) it is not apt to consider the plea of the
petitioners in absence of explanation for the delay being
proffered by the petitioners. No material is also placed by
the petitioners to indicate that soon after publication of
seniority list in 2016, objections were raised by them. It
could be discerned that seniority list in Letter dated
24.06.2017 (Annexure-7) was a result of recast on
account of order of the learned Odisha Administrative
Tribunal, which being not challenged by the petitioners
at any point of time, said order having attained finality,
it would not be prudent for this Court to intermeddle
with the said seniority list. Therefore, the seniority list
prepared adhering to the order of the learned Odisha
Administrative Tribunal, it could not be faulted with.
12.3. However, in view of comparative analysis of the
provisions of the RA Rules vis-à-vis the Odisha Sub-
ordinate Forest Service (Method of Recruitment and
Conditions of Service Foresters) Rules, 1998 as amended
in the year 2009, since the VFWs merged in the Cadre of
Foresters with effect from 10.02.2009 much after
appointment of the private opposite parties, who have
joined the Training Institute with effect from 16.06.2008,
there seems no anomaly in fixing seniority by placing
them below the direct recruits and the promotees in the
year 2008. Since the merged VFWs in the year 2009
could not be treated as direct recruits or promotees in
terms of Rule 4 of the Odisha Sub-ordinate Forest
Service (Method of Recruitment and Conditions of
Service Foresters) Rules, 1998 as amended in the year
2009 and being re-designated and merged in the Cadre
of Foresters in the year 2009 cannot march over the
position of the private opposite parties, who were
appointees of 2008.
12.4. The Instruction in Letter dated 27.05.2019 is in tune
with statutory Rules having overriding effect in view of
Rule 15 of the RA Rules, the Service Book reflecting
entry of the private opposite parties into the Government
service does not warrant rectification by invoking power
of judicial review.
13. In view of the legal position as set forth and elaborately
discussions made on the documents/material placed on
record vis-à-vis rival contentions and arguments this
Court does not find merit in the plea and submissions of
the petitioners.
14. In the result, the writ petition, sans merit, is dismissed,
but in the circumstances, there shall be no order as to
costs.
15. Pending interlocutory application(s), if any, shall stand
disposed of.
(MURAHARI SRI RAMAN)
JUDGE
Signature Not
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal Assistant Orissa High Court, Cuttack
(Secretary-in-charge)
Reason: Authentication
Location: ORISSA HIGH COURT,
The 13th January, 2026//Aswini/Bichi/Laxmikant
CUTTACK
Date: 13-Jan-2026 13:45:54
