DIBYADHAR GOGI Vs. JITENDRA NARAYAN BHAGWATI

JUDGEMENT

(1.) The judgment and order dated 26.8.96 passed by the learned Single Judge of this Court in Civil Rule 1366/94 is a subject matter under challenge in this Writ Appeal.

(2.) Initially, the present respondent No.1, namely, Shri Jitendra Narayan Bhagawati filed a writ petition being Civil Rule Mo. 1366 of 1994 before this Court as against the State of Assam and 20 others including the present appellants who are arrayed as respondents Nos. 5, 10, 12, 13, 14, 15, 17, 18, 20 and 21 challenging the validity of an office memorandum dated 13.3.87 issued by the Joint Secretary to the Government of Assam, Forest Department as Annexure-IX to the writ petition and also Final Gradation List of the State Forest Service Officers (Class-I) under the Government of Assam published under notification dated 20.1.94 by cancelling the earlier notification dated 19.4.1993 as in Annexure-XV to the writ petition by contending inter alia, that in the year 1962, the writ petitioner-respondent No. 1 herein was initially appointed as Forest Ranger Grade-II in the Forest Department under the Government of Assam w.e.f. 1st October, 1962 and thereafter, he was promoted to the post of Assistant Conservator of Forests, for short "ACF" vide notification/order dated 29/8/86 under Regulation 4(d) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951, in short, APSC Regulation and subsequently by another notification/order dated 31.8.92 the respondent'No. 1 along with other 12 persons have been promoted to the post of ACF under Rule 4(c) of the Assam Forest Service (Class-I) Rules, 1942 hereinafter referred to as the Rules, thus modifying partially the earlier notification/order dated 29.8186 i.e. on and from 16.10.86. The appellant No.1 (respondent No. 5 in the writ petition along with others were appointed as ACF in the; month of September, 1987 on completion of their training in the State Forest Service Training College. Like-wise the appellants Nos. 2,3,4, 5,6,7,8 and 9 who were arrayed as respondent Nos. 10, 12, 13, 14, 15, 17, 18 and 20 were appointed on 30.10.1987 on completion of their Diploma Course Training and similarly the appellant No. 10 (respondent No. 21 in the writ petition) was appointed as ACF on 12.4.1988 on completion of his training. According to the respondent No.1 (writ petitioner), the appellants were entitled only to stipend from the date of their training i.e. on and from 1.4.1986 as per recruitment policy and their appointment on regular basis was subject to successful completion of training and production of related certificates. It is also the case of the writ petitioner that a related Government circular dated 15.2.61 affording higher seniority to the directly recruited ACF over the promotee officer were struck down by this Court on 3.8.89 in the connected writ petition being Civil Rule No. 575 of 1982. It has been urged that the Government issued an office Memorandum (impugned order) dated 13.3.87 as in Annexure- IX to the writ petition conferring higher seniority to the directly recruited officers by treating their period of training as in the service training period to be effective from the related current initial year commencing from 1.4.1986 onwards and also treating the period of training as the period of probation for such officers who are undergoing such training. By virtue of the said office Memorandum/Order dated 13.3.87 a draft gradation list of officers appointed as ACF, both direct and promotee was published on 16.11.89 thus showing the names of the present appellants as seniors to the writ petitioner, respondent No. 1 herein. Being dissatisfied with the said draft gradation list, the respondent No. 1 submitted a representation to the competent authority and thereafter the competent authority issued another draft gradation list of ACF Officers on 19.4.93, thus cancelling the earlier draft gradation list dated 16.11.89 after due consideration of the representation of the respondent No.1 and as a result of which the seniority position of the respondent No. 1 was at Sl. No. 62 which is above the present appellants whose names appears in between Sl. Nos. 68 to 84 in the said list. But the date of appointment of the appellants was shown as J .4.86. As the respondent No. J is not satisfied with the action of the respondent Government, he also submitted another representation objecting the factum of showing the date of appellants and other persons similarly situated as 1,4.1986 as deemed date of appointment as seen in the documents marked as Annexure- XIV to the writ petition. Subsequently, a final gradation list was published on 20.1.94 wherein the name of the writ petitioner (respondent No.1)appears at Sl.No.78 whereas the name of the present appellants appear in between Sl. No. 62 to 76 by taking into account their date of appointment as 1.4,86 as in Annexure-XV to the writ petition. According to the respondent No.1 (writ petitioner) the respondent Government/competent authority had defied related Rule 4,6 and 15 of the Rules thus conferring higher seniority to the direct recruitees ACF over the promotees ACF and rather the impugned office memorandum dated 13.3,87 as in Annexure-IX was issued illegally and without jurisdiction and as such the final gradation list which is based on the impugned order of 13.3.87 is violative of the related Rules mentioned above. The writ petitioner also urged that as per Rule 6 of the Rules, a candidate for direct recruitment to the post of ACF is required to undergo training before he is appointed to the service and such training consists of initial training for 6 months under a Divisional Forest Officer, and if he is found suitable during this period, he is selected to undergo 2 years training course at Dehradun, Coambatore or Barnihat and during the course of training, a candidate is not paid salary, but stipend and even the period of training is not counted as Probation and as such a candidate is directly recruited to the post of ACF only upon satisfactory completion of the course of training under Rule 6 of the Rules.

(3.) The present appellants and other respondents in the writ petition contested the suit of the writ petitioner by filing affidavit-in- opposition by contending inter alia, that the writ petition is defeated by delay and laches on the main ground that the impugned office memorandum/order dated 13.3.87 as in Annexure-IX had not been challenged during last several years during which the respondent Nos. 6, 7 and 19 in the writ petition had been promoted to a higher post and their seniority position had also been finally decided by the said notification dated 20.1.94. According to the appellants, Rule 6 of the said Rules did not prescribe that the period of training of ACF should not be treated as in service, but only the related note to the statutory Rule 6 mentioned that the period of training should not be treated as service which could not have binding effect as it did not form a part of the Rule and rather, the policy decision of the Government cannot be challenged in a writ petition. It is also the case of the appellants that Regulation 4(d) of the APSC Regulation provides for officiating appointment for a period not exceeding one year and such Regulation is applicable in exceptional circumstances and as such, the persons appointed under the said Regulation to officiate do not have any right to the said post even though their continuance in the post is beyond the period of one year.