KESHAV CHANDRA JOSHI Vs. UNION OF INDIA

JUDGEMENT

(1.) The vexed question of inter se seniority between promotees and direct recruits has once again been brought to the fore at the behest of the petitioners in these writ petitions filed under Art. 32 and respondents Nos. 4 to 99 in the first writ petition, for short 'promotees' and the respondents Nos. 100 to 139 in the first writ petition, for short 'direct recruits' as Asstt. Conservators of Forest. The Governor of U. P. exercising the power under the proviso to Art. 309 of the Constitution issued the U.P. Forest Service Rules, 1952, for short 'the rules' which became effective from January 2, 1952. The promotees are confirmed Forest Range Officers in U.P. Forest Subordinate Service which is a feeder source for recruitment by promotion under R. 5(b) of the rules as Asstt. Conservator of Forest. Rule 4 constitutes and fixes the cadre strength of Chief Conservator of Forest; Conservator of Forest; Deputy Conservator of Forest and Asstt. Conservator of Forest. By fiction of law in Note to Rule 3(h) all the members of the provincial Forest Service became members of the initially constituted service. It would appear that after amalgamation no recruitment under Rule 5(a) of the posts of Asstt. Conservator of Forest was immediately made. In May, 1966, the selection to the posts of Asstt. Conservator of Forest was made but was ultimately vacated by this Court in A. K. Kraipak v. Union of India, (1970) 1 SCR 457 , and the connected matters. The process of recruitment was again started in the year 1972 but was stayed by the High Court of Allahabad in W. P. No. 119 of 1972. The list of-the recruits of 1966 could not thus be finalised till 1975. With effect from May 1, 1975, the ratio of 25% recruitment of promotees in Rule 6 was increased to 33-1/ 3rd per cent. The Governor also issued "promotion by selection in consultation with the Public Service Commission Procedure Rules, 1970". In the meanwhile the number of posts of Asstt. Conservator, Forest was determined. As there was no direct recruitment under Rule 5(a) till 1974 and even thereafter, promotees were appointed, admittedly on ad hoc basis, between March 13, 1974 and November 21, 1981, subject to direct recruitment and were posted as Assistant Conservator, Forest. Thus they are continuing temporarily on ad hoc basis though for varying periods of 5 to 12 years. In the meanwhile, the direct recruits under R. 5(a), had undergone two years training in the Indian Forest College, Dehradun and obtained diploma therefrom. In 1976, they were appointed on probation to substantive vacancies. When their claim was ripe for consideration as Deputy Conservators of Forest in the Indian Forest Service, the petitioners claiming seniority over them filed the writ petitions seeking inter alia for the issue of (a) a writ of mandamus to declare Rule 3(h) and Rule 24 of the Rules relating to reckoning of seniority from the date of the substantive appointment as illegal and violative of Arts. 14 and 16 of the Constitution of India; (b) to declare Rule 4 of the Indian Forest Service (Recruitment) Rules, 1966 and Regulation 5 of Indian Forest Service (Appointment by Promotion) Regulation, 1966 as violative of Arts. 14 and 16 etc., the details of which art, not material since the petitioners have given up their challenge before us. The only plea put forth is that the promotees should be declared ten have been regularly appointed from the respective dates of their-initial promotion as Assistant Conservators with all consequential benefits. The contention of M/ s. Mukhoty and Garg, their learned senior counsel is that though the promotees were appointed on ad hoc basis due to non-availability of direct recruits to the vacant posts of Asstt. Conservator of Forest, they are continuing for well over 5 to 12 years discharging the same duties, drawing the same scale of pay without any reversion. The posts held by the petitioners are not fortuitous, nor stop gap. The entire continuous length of service from the dates of their initial promotion should he counted towards their seniority. They strongly relied on Narendra Chadha v. Union of India, (1986) 1 SCR 211 , Baleshwardas v. State of U. P.. ,(1981) 1 SCR 449 N. K. Chauhan v. State of Gujarat, (1977) 1 SCR 1037 and proposition 'B' in paragraph 47 (of SCC):, in Direct Recruits Class II Engineering Officers' Association v. State of Maharashtra, (1990) 2 SCC 715, para 47, Prop. 'B' for short 'Direct Recruits' case in their support.

(2.) Shri P. P. Rao, learned counsel for the direct recruits contended that the appointment of the promotees admittedly being ad hoc they had not have any right to the posts. Their appointments, not being on the basis of merit as per rules, did not confer any right to the posts. Their seniority has to be counted only from the dates of substantive appointment. The service rendered from the dates of initial promotion till date of the substantive appointment should be treated as fortuitous. The delay to make direct recruitment had been occasioned only on account of the pendency of the proceedings right from Kraipak's case (supra) in Allahabad High Court till the present group of writ petitions. Since promotees were appointed in excess of the prescribed quota in Rule 6, they should be pushed down to the vacancies that had arisen in each year above the direct recruits as per the ratio as the promotees are not entitled to claim seniority from the initial dates of their respective promotions. In support thereof he relied on proposition 'A' of paragraph 47 (of SCC): of the Direct Recruits' case (1990) 2 SCC 715 and the ratio in Masood Akhtar Khan v. State of Madhya Pradesh JT 1990 (3) SC 295. He also contended that the power of relaxation in Rule 27 is only in respect of conditions of service and not relating to recruitment or promotion. He placed reliance on A. J. Patel v. State of Gujarat, AIR 1965 Gujarat 23 (FB).

(3.) Since the rules are legislative in character, they must harmoniously be interpreted as a connected whole giving life and force to each word, phrase and rule and no part thereof should be rendered nugatory or a surplus age. Resort to iron out the creases could be had only when the construction of the relevant rule, phrase or word would lead to unintended absurd results. To accord just solution to this, we have set out only the relevant rules. Rule 3(h) of the Rules defines "Members of the Service" to mean "a person appointed in a substantive capacity under provisions of these rules" or of rules or orders in force previous to the introduction of these rules, "to a post in the cadre of the service". The rules shall not apply to the members of the Indian Forest Service. Rule 3(e) defines direct recruitment, which means recruitment in the manner prescribed in clause (a) of Rule 5 of these Rules. Rule 5 in Part III indicates sources and methods of recruitment as Asstt. Conservator of Forest service shall be made -