ivil Appeal No 3982 of 1989
From the Judgment and Order dated 2041988 of the Bihar High Court in CWJC No 1749 of 1988
BRL Iyengar Govind Mukhoty KK Gupta and Hari Narain Ojha for the Appellant
Anil Dev Singh AK Sen D Goburdhan TC Sharma Mrs Sushma Suri and D P
Mukherjee for the Respondents
The Judgment of the Court was delivered by OJHA J
Special leave granted
203 This appeal has been preferred against the judgment dated 20th April 1988 of the Patna High Court dismissing a writ petition filed by the appellant challenging a seniority list
Necessary facts in brief are these The appellant and respondents 7 to 13 are Assistant Conservators of Forest in Bihar Forest Service
Their serv ice conditions are governed by the Bihar Forest Service Rules 1953 hereinafter referred to as the Rules made by the Government of Bihar in exercise of the powers conferred on it by the proviso to Article 309 of the Constitution of India
According to Rule 2vii of the Rules the service means the Bihar Forest Service
Rule 3 provides that the appointments of the service shall ordinarily be made by a direct recruitment in accordance with the Rules in Part II of these Rules by competitive examination to be held by the Commission and b by promotion in accordance with the Rules contained in Part V of selected rangers specified therein
The appellant and respondents 7 to 12 were selected rangers and were appointed as Assistant Conservator of Forest by promotion under Rule 3b
As is apparent from the counter affidavit on behalf of respondents 8 to 10 respond ent No 11 was promoted as Assistant Conservator of Forest on 21st December 1976 respondent Nos 7 8 9  12 on 29th November 1977 and respondent No 10 on 15th December 1978
In so far as the appellant is concerned even though he was appointed subsequently his appointment was made effective retrospective from 29th November 1977
Respondent No 13 on the other hand as is apparent from the seniority list which was challenged by the appellant was appointed under Rule 3a of the Rule by direct recruitment on 3rd May 1978
The counter affidavit further indicates that respondent No 13 was confirmed as Assistant Conservator of Forest on 30th June 1983
Respondents 7 to 11 were confirmed on 30th August 1983 and respondent No 12 was confirmed on 5th August 1983 whereas the appellant was confirmed on 31st December 1986
In the said counter affidavit the dates of appointment as rangers of respondents 11 7 8 9 10 12 and the appellant respectively are stated as 3rd April 1958 4th April 1958 5th April 1958 9th April 1958 7th April 1959 1st April 1966 and 2nd April 1967
Even though a rejoinder has been filed by the appellant the correctness of the aforesaid facts has not been denied therein nor has it been urged by the learned counsel for the appellant before us that these facts are inaccurate
It is on the basis of these facts therefore that the respective submissions made by learned counsel for the parties have to be considered
204 It has been urged by learned counsel for the appellant mainly relying on a memorandum to the Cabinet dated 24th November 1977 which contains a note that if the appellant was found fit for promotion by the selection committee his place will be above 10 general category rank officers men tioned therein that in the seniority list the name of the appellant should have been placed above those officers
According to the learned counsel for the appellant the memorandum was approved by the Cabinet on the same date and yet in the impugned seniority list the aforesaid direction was not carried out
For the respondents it was urged that the Cabinet had not approved the memorandum in its entirety
In our opinion however it is not necessary to go into this controversy
It was on the above premise that the writ petition challenging the seniority list was filed by the appellant in the High Court and according to his learned counsel the High Court committed an error in dismissing the same
Having heard learned counsel for the parties we find it difficult to agree with the submission made by the learned counsel for the appellant
As seen above the serv ice conditions of Assistant Conservators of Forest who are members of the Bihar Forest Service are governed by the Rules
Rule 35 which specifically deals with the matter of seniority reads as hereunder 35
Seniority of officers appointed to the Service shall be determined with reference to the date of their substantive appointment to the Service
Provided that i in the case of members of the Service appointed by direct recruitment at the same time their seniority inter se shall be in the order of merit in which their names are placed in the list of successful candidates at the Final Examination of the Indian Forest Col lege Dehra Dun ii in case where appointments are made to the Service both by direct recruitment and promotion of selected Rangers at the same time the promoted members of the service shall be senior to the members directly re cruited and iii the seniority inter se of Rangers on substantive appointment to the Service by promotion at the same time 205 shall be their seniority inter se held as Rangers In the instant case we are not concerned with Clause i of the proviso
Even Clause ii is not attracted inasmuch as respondent No 13 even though was appointed by direct recruitment was not appointed at the same time as the appellant and respondents 7 to 12 as already indicated above
That is clause iii of the proviso therefore which is relevant for the determination of the seniority inter se of the appellant and respondents 7 to 12
On a plain reading of this Clause it is apparent that on substantive appoint ment of rangers to the service by promotion their seniority inter se in the service is to be governed by their seniori ty inter se held as rangers
As seen above the appellant as well as respondents 7 to 12 have already been confirmed as Assistant Conservator of Forest and meet the requirement of substantive appointment to the service by promotion
In order to determine their inter se seniority as Assistant Conservator of Forest therefore their seniority inter se held as rangers shall be the determining factor
The respec tive dates of appointment as rangers of the appellant and respondents 7 to 12 have already been given above
Its perusal indicates that respondents 7 to 12 had been appoint ed as rangers much before 2nd April 1967 which was the date on which the appellant was appointed as a ranger
The dates of appointment and confirmation of respondent No 13 who is a direct recruit have been noted earlier
In this view of the matter the claim of seniority as made by the appellant has no substance
It is settled law that the provisions of statutory rules cannot be modified or altered by executive instructions and it is only in the absence of statutory rules that executive instructions have relevance
As such even if for the sake of argument it may be accepted that on account of the memoran dum to the Cabinet or any other executive instruction the appellant was to be given seniority as claimed by him it could not be done as in case of a conflict the statutory provisions contained in this behalf in proviso iii of Rule 35 of the Rules shah prevail
In the result this appeal fails and is dismissed but in the circumstances of the case there shall be no order as to costs
Appeal dismissed


Summary:
The appellant was appointed as overseer by the Municipal Board Kanpur on March 5 1937 and continued in its service up to March 19 1951 when a copy of the resolution passed by the Board on March 5 1951 purporting to dismiss him from service was handed over to him
On April 7 1951 he filed an appeal to the Government against the order of dismissal from service but he was informed on April 8 1952 that his appeal was rejected
Thereafter on December 8 1952 the appellant instituted a suit challenging the legality of the order of dismissal on various grounds and the question arose whether the suit was within time
Sub section I Of section 326 of the U P Municipalities Act 1916 provided that no suit shall be instituted against a Municipal Board  until the expiration of the two months next after notice in writing has been left at the office of the Board explicitly stating the cause of action   and sub section
3 stated that  no action such as is described in sub section
1 shall be commenced otherwise than within six months next after the accrual of the cause of action 
The appellant contended that the cause of action accrued to him on April 8 1952 when the order of dismissal of his appeal to the Government was communicated to him and the suit filed within eight months of that date was within time and relied on the provisions of section 58 1 and 2 read with section 69 of the Act which gave an officer dismissed by the Board a right of appeal to the Government within 30 days of the communication to him of the order dismissal  Held that though the order passed by the Board on March 5 1951 was subject to a right of appeal to the Government the operation of the order was not suspended by the mere filing of the appeal and the order became effective from March 19 1951 when it was communicated to the appellant
The cause of action therefore accrued to him on that date and the suit filed by him on December 8 1952 was barred by limitation under section 326 of the U P Municipalities Act 1916