WP(C) 688/2009 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL) By means of this writ petition, the four petitioners, who are presently serving as Forester-I, have prayed for a direction to the respondents to promote them to the post of Deputy Ranger. They have also challenged the Annexure-10 o rder dated 8.4.2008 so far as the same relates to the promotion of the Responden ts No.4 and 5 to the rank of Deputy Ranger. 2. The petitioners were appointed as Forester-I under the respondents in di fferent years. The petitioner No.1 was appointed in the year 1993 (17.3.1993) a nd the petitioner No.2 was appointed in the year 1992 (15.12.1992). The petitio ner No.3 was appointed in the year 1990 (14.12.1990) while the petitioner No.4 w as appointed in the year 1986 (18.3.1986). Upon such appointment, they joined t heir services and have been continuing as such till date. It is the grievance of the petitioners that although they have rendered suitable length of service and are qualified and eligible for promotion, they have not been provided with the promotion to the post of Deputy Ranger. 3. All the petitioners have successfully completed the One Year Training Co urse from Assam Forest School, Jalukbari, Guwahati. While the petitioner No.1 cl eared the training course in 2005 securing 76.53% marks and got 3rd rank/positio n in merit, the petitioner No.2 passed the said training course in 2001 securing 74.13% marks and got 3rd rank/position in merit list. Likewise, the petitioners No.3 and 4 have also passed the one year training course in the year 1992 and 1 997 respectively from the Assam Forest School, Jalukbari, Guwahati securing 73.0 6% and 70.18% marks respectively and obtained 3rd rank/position. 4. The petitioners have given other service particulars so as to contend th at they have rendered meritorious service, but over the long length of service, they have been denied promotion to the rank of Deputy Ranger in spite of eligibi lity and suitability. 5. The Assam Junior Forest Service Rules 2005 came into force with effect f rom 4.1.2006. Prior to that, the Draft Rules of 1992 was followed for the purpos e of promotion. As per the requirement of the said Rules of 2005, a Forester-I i s eligible for promotion to the post of Deputy Ranger on successful completion o f the aforesaid training securing 2nd and 3rd position with not less than 70% ma rks in the final examination of the Forest Training School and with a continuous service length of not less than 5 years. (Refer Rule 5 and 6 of the Rules of 20 05). 6. Mr. H.R.A.Choudhury, learned Sr. counsel assisted by Ms R. Choudhury, le arned counsel for the petitioners, upon a reference to the averments made in the writ petition as well as the provisions of the aforesaid Rules of 2005, submits that the petitioners being eligible for promotion to the next higher grade of D eputy Ranger, the respondents are bound to promote them. He further submits tha t the respondents committed illegality in promoting the Respondents No.4 and 5, who are admittedly junior to the petitioners by the impugned Annexure-10 order d ated 8.4.2008. Be it stated here that the said two respondents have passed the training course in the year 2006 and 2007 respectively securing 3rd rank/positio n with the requisite percentage of marks. 7. In the counter affidavit filed by the respondents, it has been contended that since the petitioners had cleared the training course prior to coming into force the aforesaid Rules of 2005, they are not entitled to be considered for p romotion under the said Rules. Ms R. Chakraborty, learned Addl. Sr. Govt. Advoca te, upon a reference to the stand of the respondents in the counter affidavit, s ubmits that since the petitioners had completed the training course in question prior to coming into force of the aforesaid Rules of 2005, they are not entitled to be considered for promotion under the said Rules of 2005. 8. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and also gone through the materials on record. 9. There is no dispute that the petitioners have all cleared the requisite training course and they conform to the requirement of Rule 6(1)(a)(i) of the af oresaid Rules of 2005. As per the provisions of the said Rules, the Forester tr ainees securing 2nd and 3rd position with not less than 70% marks in the final e xamination of the Forest Training School and with a continuous service not less than 5 years are eligible for promotion to the post of Deputy Ranger. As noted above, all the petitioners have completed the training course securing 3rd rank/ position with the requisite percentage of marks, which is 70%, and above. 10. In the aforesaid Rules of 2005, no distinction has been made between the training courses imparted prior to coming into force of the Rules and after the effective date of the Rules. In the counter affidavit filed by the respondents, it has been admitted that the Forester-I can be considered for promotion to the post of Deputy Ranger in the event of securing 2nd and 3rd position with not le ss than 70% marks in the training course imparted by Forest Training School. How ever, the only objection raised by the respondents is that the petitioners havin g completed the training course prior to the 2005 Rules, they are not eligible f or consideration for promotion to the post of Deputy Ranger. 11. The petitioners have not claimed their promotion to the post of Deputy R anger as per the provisions of the Draft Rules of 1992. However, their claim is for promotion on the basis of the 2005 Rules. If the petitioners have fulfilled the requirement of Rule 6 of the aforesaid Rules, I see no reason as to why the ir case should not be considered by the respondents. In this connection, the pe titioners have also referred to promotion of the Forest Guard to Forester-I. It appears that by Annexure-7 order dated 25.5.2007, some Forest Guards have been p romoted to the post of Forester Grade-I under the new Rules of 2005 under simila r conditions. As per the requirement of Rule 6 (b) (i) of the Rules of 2005, a F orest Guard/Game Watcher trainee securing 2nd and 3rd position with marks not le ss than 70% in the final examination with continuous length of service not less than 5 years is eligible for promotion to the post of Forester-I. The Forest Gu ards named in the Annexure-7 order dated 25.5.2007, who have been promoted to th e rank of Forester Grade-I had cleared their training course prior to the coming into force of the 2005 Rules. If such Forest Guards could be considered under t he 2005 Rules, I see no reason as to why the case of the petitioners cannot be c onsidered under the same set of rules. 12. The Respondents No.4 and 5 are junior to the petitioners, but they have been promoted to the post of Deputy Ranger by the impugned order dated 8.4.2008 (Annexure-10 to the writ petition). Merely because, the said two respondents hav e cleared the training course after coming into force of the 2005 Rules and the petitioner cleared the same prior to coming into force of the 2005 Rules, the au thorities cannot deny consideration of the case of the petitioners. It is not th e case of the respondents that the course is undertaken by the petitioners is di fferent from that the one undertaken by the said two respondents. 13. The plea of the petitioners that the provisions of the Rules have been a pplied to the Forest Guard (Para-7 and 8) and that they are similarly situated w ith that of the petitioners, have not been denied in the counter affidavit. The only statement made is that the statement made in paragraphs 6, 7 and 8 being m atters of record, the respondents have nothing to explain. 14. If the juniors to the petitioners have been considered for promotion to the post of Deputy Ranger, the respondents are bound to consider the case of the petitioners applying the test of ’next below rule’ under which if the juniors s upersede a senior in the matter of promotion, the said senior is bound to be con sidered by the authorities. 15. Above being the position, there is no escape from the conclusion that al l the petitioners are eligible for promotion to the post of Deputy Ranger as per the provisions of the 2005 Rules and the respondents are bound to consider thei r case at par with the Respondents No.4 and 5 applying the aforesaid test of ’ne xt below rule’. 16. The respondents are directed to consider the case of the petitioners for promotion to the post of Deputy Ranger applying the same yardstick and paramete rs, as has been applied to the case of the Respondents No.4 and 5. As noted abov e, the only ground urged in the affidavit is that the petitioners having cleared the training course prior to the Rules of 2005 are not eligible for promotion. No other ground has been urged. 17. Upon consideration of the case of the petitioners in the above manner an d in the event of promotion to the post of Deputy Ranger, they will be entitled to notional benefits only with appropriate fixation of pay and seniority above t heir juniors. 18. At this stage, Mr. H.R.A. Choudhury, learned Sr. counsel for the petitio ners submits that there are vacancies in the cadre of Deputy Ranger, in which th e petitioners can be accommodated. Let the exercise towards consideration of the case of the petitioners be completed as expeditiously as possible, preferably w ithin 3 (three) months from today. 19. Writ petition is allowed to the extent indicated above.