ANANTHASUBRAMONIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE Judgment of the Court was delivered by Gopalan nambiyar, C. J.-- The petitioner challenges the fixation of his year of allotment in the Indian Forest Service and his rank and seniority in the said service. He was selected for training in the Indian Forest College , Dehradun in i 946 and after training, appointed first as a Probationary Assistant Conservator of Forests in 1946 and later on confirmed in the post. By order dated 1st April 1966 he was promoted as Deputy Conservator of Forests notionally from 18th january 1964, that is, the date on which his immediate junior Mr. Hassankutty was promoted to the said post. His pay was refixed from that date by Ext. P1. He was promoted as the Conservator of Forests on 10th July 1968 and his promotion to the said post was regularised by Ext. P2 G. O. dated 8th April 1972. In 1966 the Indian Forest Service was constituted under section 2a of the all India Services Act, 1951. The date of the constitution of the service was notified as 1st July 1966 and Rules and Regulations were made under section 3 of the Act constituting a cadre of the service for each State or group of states, fixing the strength of the several cadres and regulating the recruitment to the service and pay and other conditions of service of persons appointed thereto. Clause 4 of the Indian Forest Service (Initial Recruitment)Regulations, 1966 provides: "4. Conditions of eligibility.-- (1) Every officer of the State Forest Service who, on the date of constitution of the service:- (a) is holding a cadre post substantively or holds a lien on such post, or (b) (i) holds substantively a post in the State Forest service, (ii) who has completed not less than eight years of continuous service (whether officiating or substantive) in that Service, and (iii) who has completed not less than three years continuous service in an officiating capacity in a cadre post or in any other post declared equivalent thereto by the State Government concerned, shall be eligible for selection to the service in the senior scale. (2) Every Officer of the State Forest Service who has completed four years of continuous service on the date of constitution of the service shall be eligible for selection to the service in the junior scale. * * * * " (the rest of the rule omitted as not material ). Under R. 4 of the Indian Forest Service (Recruitment) Rules, 1966, the Central Government is to recruit to the service as soon as may be after the commencement of the Rules, any person from amongst the members of the state Forest Service adjudged suitable in accordance with such regulations as the Government may make in consultation with the State Governments and the commission. Under sub-r. (2) of R. 4 of the above rules, the subsequent recruitment to the service shall be (a) by a competitive examination; (aa) by selection of persons from amongst the Emergency Commissioned Officers and Short service Commissioned Officers of the Armed Forces, etc. ; and (b) by promotion of substantive members of the State Forest Service. The number of persons to be recruited by each method and the methods of recruitment during any particular period, were to be determined by the Central Government in consultation with the Commission. Under R. 8, the recruitment by promotion shall be from amongst the substantive members of the State Forest Service, on the recommendations of the State Government and in consultation with the Commission and in accordance with such regulations as the Central Government may make after consultation with the State Governments. As envisaged by the above rule, the Indian Forest service (Appointment by Promotion) Regulations, 1966, had been framed. Under regulation 2 (b) of the said regulations, a 'cadre post' is defined as any of the posts defined in the Regulations made under sub-r. (1) of R. 4 of the Indian forest Services (Cadre) Rules. In 1966, at the time of the initial constitution of the Indian Forest Service, the petitioner was not selected, but respondents 3 to 19 were. The 20th respondent was selected by direct recruitment and became a Deputy Conservator of Forests in 1970. From Kerala, the petitioner was the only one recruited by promotion to the Indian Forest Service, and appointed by Ext. P4 dated 18th January 1974 to that Service against a vacancy in the senior time scale. Under the Indian Forest Service (Regulation of Seniority) Rules, 1968, the petitioner's year of allotment was fixed as1968 by Ext. P7 letter dated 20th September 1974 and the necessary amendments were directed to be carried out in the Gradation List. This was under the provisions of R. 3 (2) (c) of the indian Forest Service (Regulation of Seniority) Rules, 1968. The Rule, in so far as the same is relevant may be quoted: "3. Assignment of year of allotment.-- (1) Every officer shall be assigned a year of allotment in accordance with provisions hereinafter contained in this rule. (2) The year of allotment of an officer appointed to the service shall be -- * * * * (c) where an officer is appointed to the service by promotion in accordance with R. 8 of the Recruitment Rules, the year of allotment of the juniormost among the officers recruited to the service in accordance with R. 7 or if no such officer is available the year of allotment of the juniormost among the officers recruited to the service in accordance with r. 4 (1) of these rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former: Provided that seniority of officers who are substantively holding the post of a Conservator of Forests or a higher post on the date of constitution of the service and are not adjudged suitable by the Special selection Board in accordance with the Indian Forest Service (Initial recruitment) Regulations, 1966, but who may later on be appointed to the service under R. 8 of the Recruitment Rules shall be determined ad hoc by the central Government in consultation with the State Government concerned and the commission. Explanation 1.-- In respect of an officer appointed to the service by promotion in accordance with sub-r. (1) of R. 8 of the Recruitment rules, the period of his continuous officiation in a senior post shall, for the purposes of determination of his seniority, count only from the date of the inclusion of his name in the Select List, or from the date of his officiating appointment to such senior post, whichever is later. Explanation 2.-- An officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that date to the date of his confirmation in the senior grade he continues to hold without any break or reversion a senior post otherwise than as a purely temporary or local arrangement. * * * * " (the rest of the rule is not material) R. 2 (g) of the above rules defines 'senior post' as follows: " 'senior post' means a post included and specified under item 1 of the cadre of each State in the Schedule to the Indian Forest service (Fixation of Cadre Strength) Regulations, 1966, and includes -- a post included in the number of posts specified in items

(2.) AND 5 of the said cadre, when held on senior scale of pay, by an officer recruited to the service in accordance with sub-r. (1) of R. 4 or R. 7 of the recruitment Rules; " By G. S. R. dated 18th October 1969 a new proviso was inserted after Explanation 1 to clause (c) of sub-r. (2) of R. 3, as follows: "2. In the Indian Forest Service (Regulation of seniority) Rules, 1968, in Explanation 1 to clause (c) of sub-r. (2) of R. 3 the following proviso shall be inserted, namely:- Provided that where an officer is appointed to the service by promotion under R. 8 of the Recruitment Rules on the basis of his name having been included in the first select list prepared by the Selection committee constituted under regulation 3 of the Indian Forest Service (Appointment by Promotion) Regulations, 1966 the period of his continuous officiation in a senior post or post declared equivalent thereto prior to the date of the inclusion of his name in the first select list shall also count, if such officiation is approved by the Central Government in consultation with the commission. " Turning now to the Indian Forest Service (Fixation of cadre Strength) Regulations, 1966, for Kerala, three posts are mentioned as senior posts, namely, the Chief Conservator of Forests, Conservators of Forests and Deputy Conservators of Forests. Under the Indian Forest Service (Cadre)Rules, 1966, a 'cadre post' is defined as one specified as such in the regulations made under sub-r. (1) of R. 4. R. 4 (1) provides for determination of cadre strength by regulations by the Central Government in consultation with the state Governments. Under R. 8, every cadre post shall be filled by a cadre officer except as provided under the rules. R. 9 provides for temporary appointment of non cadre officers to cadre posts in a State only if the State government is satisfied: (a) that the vacancy is not likely to last for more than three months ; or (b) that there is no suitable cadre officer available for filling the vacancy. If any non cadre officer overstays in the post beyond three months, a report is to be sent to the Central Government, and the said government may direct the State Government to terminate the appointment. Where a non cadre officer is likely to continue in a cadre post for longer than six months, the Central Government is to report the full facts to the Union Public service Commission and give suitable directions to the State Government concerned in the light of the advices of the Commission. 2. In the light of the above provisions, counsel for the petitioner contended that his seniority had to be fixed under the proviso to explanation 1 to R. 3 (2) (c) of the Regulation of Seniority Rules, 1968, (newly added by amendment dated 18th October 1969) and not under the main part of the said rule, as was done by Ext. P7. It was argued that on the facts and in the circumstances of the petitioner's service in a cadre post, and his continuous officiation for a long period, as Conservator of Forests, a different content and meaning should, if necessary, be given to the expression 'cadre post' as warranted by the context within the meaning of the definition as given by R. 2. The designation of posts as Chief Conservator of Forests, Conservators, and deputy Conservators of Forests, in the schedule to the fixation of cadre strength regulations (noticed supra) was indicated as a guide for regarding the post occupied by the petitioner as a 'cadre post', or an equivalent post under the newly added proviso to the Explanation 1 to R. 3 (2) (c) of the Regulation of seniority Rules, or at least as a 'senior post' as defined in S. 2 (g) of the Regulation of Seniority Rules. The requirement of officiation in a 'senior post', in the main part of R. 3 (2) (c) of the Regulation of Seniority Rules and the importance of the two Explanations in the context were stressed. Attention was invited to the gradation list as on 1st January 1977 in which the petitioner was given rank No. 25 with date of appointment to the Indian Forest Service as 18th january 1974. The present post held by him is shown as Conservator of Forests, working Plan and Research Circle, Trivandrum, the date of appointment to the post as 23rd April 1975, the pay as Rs. 1,450 ; the remarks being that he is accommodated against a post in the State scale on the basis of a decision of the High Court.

(3.) THE well known decision in Anand Prakash Saksena v. Union of India and others AIR 1968 SC 754 was cited, for the proposition that the appointment of a non Cadre officer under rule 9 will not confer any benefit, and also for the proposition that the filling up of a cadre post by a non cadre officer under R. 9 does not infringe any right of the cadre officer, nor does it amount to withholding of a promotion or a penalty. We are unable to derive any assistance from these observations in paragraph 14 of the judgment; nor from the further observation in paragraph 21 that the seniority of the promotee should be counted from the date of his joining the State Civil service. Related to the actual facts and the Rules and Regulations in question, the case considered was totally different.