IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :09.03.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI Writ Petition Nos.838 to 841 of 2008 and Writ Petition No.33489 of 2007 and M.P.Nos.1 of 2007 and 2008 A.George Benjamin ... Petitioner in W.P.No.838/2008 S.Kumar ... Petitioner in W.P.No.839/2008 K.Vijayakumar ... Petitioner in W.P.No.840/2008 V.Sivakumar ... Petitioner in W.P.No.841/2008 Kannan ... Petitioner in W.P.No.33489/2007 Vs. 1.The Government of Tamil Nadu rep by its Secretary to Government, Environment & Forest Department, Fort St.George, Chennai – 600 009. 2.The Principal Chief Conservator of Forests, Panagal Buildings, Saidapet, Chennai – 600 015. ... Respondents in all W.Ps. PRAYER in W.P.Nos.838 to 841 of 2008: Petitions filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus, to direct the respondents to promote the petitioner to the post of Ranger by applying the provisions especially rule 11 of Special Rules on the date on which the petitioners' juniors were promoted by applying Rule 11 of Special Rules and with all monetary and service benefits. PRAYER in W.P.No.33489 of 2007: Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, to call for the records of the second respondent made in Ref.No.B1/8749/2000 dated 28.08.2007 and quash https://hcservices.ecourts.gov.in/hcservices/ the same and consequently direct the respondents to promote the petitioner to the post of Ranger by applying the provisions especially rule 11 of Special Rules on the date on which his juniors were promoted by applying rule 11 of Special Rules with all monetary and service benefits. For Petitioner :Mrs.Selvi George (In all W.Ps.) For Respondents :Mr.S.N.Kirubanandam, (In all W.Ps.) Special Government Pleader. COMMON ORDER Heard learned counsel for the petitioners and the learned Special Government Pleader for the respondents. 2.While the writ petitions in W.P.Nos.838 to 841 of 2008 are filed for a direction against the respondents to promote the petitioners to the post of Ranger by applying the provisions especially Rule 11 of Special Rules on the date when the juniors of the petitioners were promoted with all monetary and service benefits, W.P.No.33489 of 2007 is filed by the petitioner therein challenging the order of the second respondent therein namely the Principal Chief Conservator of Forests, Chennai, dated 28.08.2007 rejecting the claim of the petitioner to give retrospective effect to his promotion as Ranger and fix seniority on the date of promotion of his Junior Thiru.K.Subramanian. 3.The writ petitioners have joined in the Forest Department as Foresters. It is the case of the petitioners that from the post of Forester to the next post of Forest Ranger the promotion is done by the method of recruitment as per the rules namely, Tamil Nadu Forest Subordinate Service Rules which are the Special Rules. As per the said Rules, there are four feeder categories namely, i) Appointment of Forest Apprentices as per Rule 9, ii) Promotion of Foresters trained in the Northern Forest Rangers College, Dehradun or Southern Forest Rangers College, Coimbatore, iii) Promotion of Foresters on completion of training in the State Forestry Training School and iv)Appointment by transfer of trained members of the Madras Ministerial Service in the Forest Department as per Rule 10. It is stated that the petitioners are coming in the second category which is governed by the Rule 11 of the said Rules. The selection of Foresters for deputation to Rangers training at the Southern Forest Rangers College, Coimbatore or Northern Foresters Rangers College, Dehradun is done by the Chief Conservator of https://hcservices.ecourts.gov.in/hcservices/ Forests and such persons should have passed P.U.C or Higher Secondary School examination and must not have completed 32 years of age on the 1st November of the year in which the selection for deputation to the Rangers college is made and in respect of Scheduled Caste or Scheduled Tribe or the Backward classes, the age limit shall be increased by 5 years and must have put in at least 5 years of service; that the selected person shall be an approved probationer and after the person selected shall qualify himself successfully by completing the examination prescribed for admission to the college. Thereafter, the selected candidates are sent by way of deputation to the Rangers College for necessary training and after completion of training, the Forester will be appointed as Forest Ranger. If he fails to complete the course of training satisfactorily, he will be deputed to the next training for one year. The proportion and percentage of the appointment on the said four feeder categories in respect of 1st feeder category was by 50%, 2nd feeder category was by 25%, 3rd category was by 20% and the 4th feeder category by 5%. By an amendment brought out in G.O.Ms.No.378, dated 05.06.1989, the ratio in respect of the 1st category was brought out to 45% and 4th category to 15% with retrospective effect from 18.09.1988. 4.It is the further case of the petitioners that they are all qualified to be appointed as Forest Rangers. It is stated that as on 31.12.1982, there was a shortfall of 70 appointments in the second feeder category in relation to the ratio of 25% and in the list of Rangers upto 1988 in which 539 posts and 270 posts should be direct recruits while 135 posts must come under the second category like that of the petitioners. It is stated that while filling up the posts in respect of the second category only 61 trained foresters were filled up while the eligible numbers to be filled up was 135. In 1988-1989, the departmental candidates were called for Rangers Course, for which the petitioners who are eligible have applied. Out of 465 candidates, 306 candidates were selected for examination which was held on 14.12.1988 and 16.12.1988 at the State Forest Service College, Coimbatore. Out of 306 candidates, only 277 candidates took part in the examination including the petitioners. After evaluation, only 33 candidates were declared as passed and found qualified for the interview by the Conservator of Forests, Research Circle, Coimbatore vide his order dated 02.01.1989 and the petitioners were called to attend the interview which was held on 11.01.1989 at Tamil Nadu Forestry College Campus, Vaigai Dam, Madurai District. However, the Chief Conservator of Forests has deputed only 27 candidates to undergo the Forest Ranger Course and the names of the petitioner did not find place in the list. It is further stated that the examination consists of Forest law and Office procedure and account. If the https://hcservices.ecourts.gov.in/hcservices/ special rules are followed in spirit, the petitioners should have been selected. It was proposed to select and depute 15 foresters for the year 1988 and even thereafter, there was a short fall of 78 vacancies to be filled up with trained foresters. It is further stated that by G.O.Ms.No.858, Environment and Forest FR-II, Department, dated 20.12.1990, 150 posts of Forest Rangers were created by surrendering the same number of Foresters posts. It is the further case of the petitioners that as per Rule 11, the qualifying examination undergone by the petitioners is not a competitive examination and only selected persons were sent for the examination and they were fully qualified to undergo the training and only after selection, they were permitted to sit for the examination. Even though, the petitioners have successfully came out in the examination, they were not sent for training and instead the respondents resorted to promote the promotees as per seniority and Special Rule has not been followed. One of the persons similarly situated as that of the petitioners, Mr.I.Kannan, Forester, filed O.A.No.422 of 1995 before the State Administrative Tribunal to promote him to the post of Ranger and it was transferred to this Court in W.P.No.15256 of 2006 and there was a direction to the said petitioner to make a representation to the second respondent which was directed to be disposed of within 6 weeks by an order dated 28.06.2007 and the said candidate has sent the representation, dated 20.07.2007 to the second respondent and it was turned down by the second respondent by his proceedings, dated 28.08.2007 as against which, the petitioner has filed the above W.P.No.33489 of 2007. 5.Therefore, the main grievance of the petitioners in these cases is that the Special Rules especially, Rule 11 has not been followed properly and the petitioners were denied promotion to the post of Forest Rangers and the statutory rules framed under Article 309 of the Constitution of India have not been followed and there is no justification for not sending the petitioners for training. Therefore, while in W.P.Nos.838 to 841 of 2008 the foresters who have undergone the examination have prayed for implementation of the Special Rule 11, the writ petitioner in W.P.No.33489 of 2007 challenges the order of the second respondent wherein by ignoring the Special Rule 11 and the impugned order came to be passed rejecting the claim of the petitioner. 6.In the counter affidavit filed by the respondents, it is stated that now the petitioners are working as Forest Rangers and therefore, the prayer cannot be granted. It is stated that by G.O.Ms.No.378, dated 05.06.1989, the Special Rules were amended to the effect that for direct recruitment 45%, by promotion 44%, trained foresters 10% and transfer from ministerial service in the https://hcservices.ecourts.gov.in/hcservices/ Forest Department 1% and by subsequent amendment G.O.Ms.No.145, Environment & Forests (FR-II) Department, dated 10.05.1995, the 10% of the trained foresters was deleted and it was included in the method of promotion by increasing it from 44% to 54% and therefore, there is no provision to depute the petitioners to undergo Ranger training as per the pre-revised ratio. 7.It is further stated that the petitioners have not challenged the said Government Order in G.O.Ms.No.145, Environment & Forests (FR-II) Department, dated 10.05.1995 or statutory rule under Rule 2 of the Tamil Nadu Forest Subordinate Service Rules and therefore, the writ petitions for Mandamus as well as challenging the order of the second respondent are not maintainable. It is true that the examinations were conducted for deputation to Ranger training course on 14.12.1988 and 16.12.1988 and interview was also conducted in Tamil Nadu Forest College, Vaigai Dam, Madurai District and the results were published. 56 Foresters and not 33 Foresters as stated by the petitioners were found eligible and they were tabulated in the order of merit and based on the total marks/rank secured by them. Based on the marks obtained, 30 Foresters out of 56, who secured ranking were deputed for the Rangers training course and the remaining 26 candidates could not be deputed as the quota seat for the Tamil Nadu candidates allotted by the Government of India was only 30 and in the meantime, the Government has amended the ratios for recruitment to the post of Forest Rangers vide G.O.Ms.No.378, dated 05.06.1989 with retrospective effect from 18.09.1988 and revised the ratio to 10% and hence the remaining 26 Foresters who were selected could not be sent for Rangers' training course. It is further stated that as per the selected list, the petitioners have secured ranks of 55, 56, 48 and 47 and seniority was also fixed accordingly. While K.Subramanian who has been mentioned by the petitioners was one among the first 30 rank holders and secured first rank and hence, he was deputed for Rangers training course and he was promoted as Forest Ranger after completion of training satisfactorily. The appointment shall be made only on the ground of merit and ability, seniority being considered only when merit and ability are approximately equal and therefore, the petitioners are not eligible for the claim. Now, by the subsequent amendment G.O.Ms.No.145, Environment & Forests (FR II) Department, dated 10.05.1995, the quota of 10% of trained Foresters for promotion to the post of Rangers was also given up. Therefore, as on date, there is no provision to depute to undergo Rangers training course as per the revised Rule. It is further stated that the petitioners have suppressed the Government Order in G.O.Ms.No.145, Environment & Forests (FR II) Department, dated 10.05.1995 and approached this Court by claiming right under the https://hcservices.ecourts.gov.in/hcservices/ Rule 11 of the Special Rules which is not maintainable. In respect of the petitioner in W.P.No.33489 of 2007, it is stated in the counter affidavit filed by the respondents that the said petitioner was 45th rank in the list and therefore, he was also not sent for the training. 8.I have carefully gone through the averments made in the affidavit filed in support of the writ petitions and considered the contentions raised on behalf of the petitioner as well as the respondents and also perused the file produced on the side of the respondents and also given anxious thought to the issue involved in this case. 9.It is the main case of the respondent Department and as it is also seen in the counter affidavit that the Special Rule relating to four categories which is relied upon by the learned counsel for the petitioners especially with reference to the promotion to the foresters trained in the Northern Forest Rangers College Dehradun or Southern Forest Ranger College, Coimbatore which was originally fixed at 25% of the total strength and was subsequently reduced to 10% has been ultimately, deleted from the purview of selection of foresters to that of the forest rangers in G.O.Ms.No.145, Environment & Forests (FR-II) Department, dated 10.05.1995. The said Government Order by which the avenue of appointment to the post of Forest Rangers was taken away stood not challenged and therefore, it is the case of the respondent department that the writ petitions are not maintainable on that score. It is the admitted fact that as per the Special Rule then in existence in respect of the Tamil Nadu Forest Subordinate Service Rules, the method of recruitment to the post of forest rangers from that of the foresters under four categories, originally with the following proportion namely, “i)Forest apprentices as per Rule 9 which is by way of direct recruitment - 50% ii)Promotion of Foresters after training a Northern Forest Rangers College, Dehradun or Southern Forest Rangers College, Coimbatore-25% (the case of petitioners covered) iii)Promotion of foresters trained in the forester training school-20% iv)Appointment by transfer from the trained members of the Madras Ministerial Service - 5%”. In respect of the second category under which the petitioners are making claim, admittedly, the percentage was reduced to 10%, as per, G.O.Ms.No.378, dated 05.06.1989 with retrospective effect https://hcservices.ecourts.gov.in/hcservices/ from 18.09.1988 and ultimately, G.O.Ms.No.145, Environment & Forests (FR-II) Department, dated 10.05.1995, the 10% of trained foresters has been dispensed with and the proposal as per the said Government order is as follows: “Copy of letter from G.O.Ms.No.145, Environment & Forests (FR II) Department, dated 10.05.1995, addressed to the Principal Chief Conservator of Forests, Madras-6. Abstract: Establishment – Forest Department- Tamilnadu Forest Subordinate Service – Promotion prospects of Executive Staff in the Forest Department – Proposals of the Principal Chief Conservator of Forests -Orders passed – Amendment to Special Rules for the Tamil Nadu Forest Subordinate Service Orders-issued. Read:1.G.O.Ms.No.162, Environment and Forests, Department dated 21.04.1992. 2.From the Principal Chief Conservator of Forests, letter No.32/40434/90, dated 11.11.1994. Order: For a long time, the Service Associations relating to Forest Watchers, Forest Guards and Foresters have been representing to Government to provide for better promotional opportunities to them, as they are facing heavy stagnation at all levels from Forest Rangers downwards to Forest Guards in the executive side and even after putting in more than 20 to 23 years of service, they are not able to get even one promotion in view of the prevailing situation. It is felt that such a situation is mainly due to resorting to direct recruitment at all levels, viz., from the category of Reserve Watchers to Rangers. Hence, with a view to provide better promotional opportunities and to minimise the effects of the prevailing situation of stagnation at all levels in the Tamil Nadu Forest Subordinate Service, the Principal Chief Conservator of Forests has submitted proposal for revision of the existing ratios in the appointment/promotion of Forest Guards, Foresters and Rangers for consideration of the Government. 2.The Government have examined the proposals of the Principal Chief Conservator of Forest in detail in the context of the service conditions of similarly placed personnel in the Police, Revenue and Commercial Taxes Departments. They have decided to accept the proposals of the Principal Chief Conservator of Forests with minor modifications. The Government accordingly direct that the existing ratios for the appointment/promotion of https://hcservices.ecourts.gov.in/hcservices/ Forest Guard, Foresters and Rangers in the Tamil Nadu Forests Subordinate Service be revised as follows:- Sl.N o. Existing Ratio Revised Ratio 1 Forest Guard i) Direct recruitment 50% Direct recruitment 60% ii) Promotional from Forest Watcher 45% Promotion 35% iii Basic Servants 5% Transfer from the members of the Tamil Nadu Basic Service in the Forest Department 5% 2. Forester i) Direct recruitment 40% Direct recruitment Nil ii) Promotion 55% Promotion 95% iii Transfer from ministerial service in the Forest Department 5% Transfer from ministerial service in the Forest Department 5% 3. Rangers i) Direct Recruitment 45% Direct recruitment 45% ii) Promotion 44% Promotion 54% iii Trained Foresters 10% Transfer from ministerial service in the Forest Department 1% iv) Transfer from ministerial service in the Forest Department 1% 3.The Government also direct that the notification appended to this order will be published in the next issue of the Tamil Nadu Government Gazette. (By order of the Governor)” https://hcservices.ecourts.gov.in/hcservices/ 10.As per the said proposal under the revised ratio there are only three categories namely, i)Direct recruitment-45%, ii) Promotion – 54% and transfer from ministerial service in the forest department – 1% and the said proposal has been notified by way of amendment as per the powers under Article 309 of the Constitution of India. It is extracted hereunder: “ Appendix Notification In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following amendments to the Special Rules for the Tamil Nadu Forest Subordinate Service (Section 12 of Part III B in Volume III of the Tamil Nadu Service Manual, 1970). Amendments In the said Special Rules, in rule 2, in sub- rule (a) in the Table, in Column (2) against the entry “Rangers” in column (1)thereof, item 2 shall be omitted. 2.For the proviso in column (2) against the entry “Rangers” in column (1) thereof, the following proviso shall be substituted, namely:- “Provided that 45 percent of the vacancy arising in the category of Rangers shall be filled by the Forest Apprentices, 54 per cent by promotion among the Foresters, who have completed Foresters Course of training and 1 per cent by transfer of trained members of the Tamil Nadu Ministerial Service in the Forest Department”. 3.For the entries in column(2) against the entry, “Foresters” in Column (1) thereof, the following entries shall be substituted, namely:- “1.Promotion from among the holders of the post of Forest Guards; or 2.Recruitment by transfer from among the members of the Tamil Nadu Ministerial Service in the Forest Department; Provided that if the unit of Selection for appointment for the purpose of this rule be twenty. 19 shall be reserved for Promotion and one shall be reserved for appointment by direct recruitment under this rule shall be made in the order of rotation specified below:- https://hcservices.ecourts.gov.in/hcservices/ From 1 to 12 - Promotion 13 - Recruitment by transfer From 14 to 20 - Promotion. 4.For the entries in column (2) against the entry “Forest Guard” in Column (1) thereof, the following entries shall be substituted, namely:- “Direct Recruitment or by Promotion from among the holders of the post of Forests Watchers or recruitment by transfer from the members of the Tamil Nadu Basic Service in the Forest Department, if they possess the Physical and educational qualifications prescribed for direct recruitment; Provided that 60 per cent of the vacancy shall be filled up by direct recruitment, 35 percent by promotion and 5 per cent by recruitment by transfer”. 11.Therefore, the statutory rule originally framed under Article 309 of the Constitution of India as per Rule 11 which is relied upon by the petitioners has been amended by following another statutory amendment on 10.05.1995 which is the Special Rule governing the issue as on today. 12.It is seen that in no one of the earlier proceedings especially, in respect of the writ petitioner in W.P.No.33489 of 2007 either the Tamil Nadu State Administrative Tribunal or this Court after the case was transferred, there has been any direction to send the petitioners for training. In any event, out of 56 foresters 30 foresters were sent for training excluding 26 candidates including the petitioners. But as far as the petitioners are concerned by the time in respect of writ petitioner in W.P.No.33489 of 2007 when his application before the State Administrative Tribunal stood transferred to this Court in W.P.No.15256 of 2006 and a direction was issued by this Court by order dated 28.06.2007 based on which the representations were made, the statutory amendment as stated above under Article 306 of the Constitution of India has come into effect. Therefore, after the said date there is absolutely no possibility for the respondents either to consider the case of the petitioners for sending them for training or considering them for promotion to the post of Forest Rangers from and out of the categories of trained forester which category stood abolished by way of the amendment. Under such circumstances, by subsequent event the petitioners have actually lost their rights even to be considered and as correctly submitted by the learned Special Government Pleader for the https://hcservices.ecourts.gov.in/hcservices/ respondents, inasmuch as the petitioners have not chosen to assail the validity of the statutory amendment which has come into effect from 2005 especially, the petitioners in W.P.No.838 to 841 of 2008 as on today, cannot maintain the Writ of Mandamus against the respondents to apply the provision of Rule 11 of Special Rules since the same stood amended by depriving the rights of persons like the petitioners. There is no statutory compulsion on the part of the respondents to consider the case of the petitioners. The said reasoning is applicable even in respect of the petitioner in W.P.No.33489 of 2007 and there is absolutely no illegality in the impugned order passed therein dated 28.08.2007 in rejecting the claim of the petitioner. In fact, in the impugned order, the respondents have stated that no one of the juniors to the said petitioner I.Kannan was sent for training. Out of 56 candidates, out of whom only 30 were sent for training on earlier occasion leaving 26 persons including the petitioners. 13.It is also relevant to point out that even as admitted by the petitioners that as on date they are working as Forest Rangers and inasmuch as non sending of the petitioners to the training is not in violation of any statutory rules, it is not possible to consider the case of the petitioners that they should have been sent earlier for the said training so as to enable them to claim the post of Forest Ranger at the earliest point of time. 14.In such view of the matter, the petitioners are not entitled for the relief claimed in these writ petitions. Hence, the writ petitions stand dismissed. No costs. Consequently, M.P.Nos.1 of 2007 and 2008 are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sms To 1. The Secretary to Government,The Government of Tamil Nadu Environment & Forest Department, Fort St.George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2.The Principal Chief Conservator of Forests, Panagal Buildings, Saidapet, Chennai – 600 015 +3ccs to Mrs.Selvi George, Advocate Sr 16174,16173,16171 +1cc to M/s. Spl.G.P. (Forests) Sr 15903 RB(CO) km/26.3. Writ Petition Nos.838 to 841 of 2008 and Writ Petition No.33489 of 2007 https://hcservices.ecourts.gov.in/hcservices/