IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6325 of 1994 with SPECIAL CIVIL APPLICATION No 7611 of 1998 with SPECIAL CIVIL APPLICATION No 3110 of 1999 with SPECIAL CIVIL APPLICATION No 449 of 1994 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH Sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO 1 & 2 Yes, 3 to 5 - No -------------------------------------------------------------- RAMAN G. PRAJAPATI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: DR MUKUL SINHA and MR PARESH UPADHYAY for Petitioners Ms MANISHA LAVKUMAR, AGP i/b M/S PATEL ADVOCATES for Respondent No. 1 MR SM MAZGAONKAR, MR KAUSHIK PUJARA and MR DC DAVE for other Respondents -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of decision: 27/10/1999 COMMON CAV JUDGEMENT All these petitions are filed by Range Forest Officers (RFOs) raising question about interpretation of the rules for determining seniority for promotion to the cadre of Assistant Conservators of Forest (ACFs). Since they all raise connected, if not common, questions of law, the petitions have been heard together and are being disposed of by this common judgment. 2.0 The facts leading to filing of Special Civil Application No. 6325 of 1994 are as under :- 2.1 This petition has been filed by two RFOs who were directly recruited to the post of RFO. After selection by the Competent Authority, they were appointed and they joined on 8.2.1981 and 10.3.1981 respectively. The said officers successfully completed the training prescribed by the statutory Rules called the Rangers (Subordinate Forest Service) (Recruitment Examination) Rules, 1974 (hereinafter to be referred to as "the 1974 Rules"). Thereafter the petitioners were required to pass the departmental examination under the Gujarat Forest Department (Forest Officers Examination) Rules, 1972 (hereinafter referred to as "the 1972 Rules"). As per the Rules, the RFO had to pass the examination under the 1972 Rules within three chances and within five years from the date of joining. Both the petitioners passed the said examination held in July, 1990. The petitioners thus did not pass the examination within the specified chances and within the specified period. 2.2 The provisions of Rule 8 of the 1972 Rules provide that a person passing the departmental examination within the specified period and in specified chances shall on his promotion to the post of ACF be assigned seniority over a person, if any, who although being junior to him in the cadre may have been promoted to the higher post earlier by reason of his having passed the examination earlier. Rule 7 provided that an RFO who passes the above examination beyond the specified period or beyond the specified chances shall be eligible for promotion to the higher post, provided that "such a person shall lose his seniority and shall also become junior to all those who may have passed the examination earlier than him" (old proviso to Rule 7). The aforesaid proviso to Rule 7 came to be amended by the statutory Rules dated 6.3.1993 called the Gujarat Forest Department (Forest Officers Examination) (Amendment) Rules, 1993 contained in the Government Notification dated 6.3.1993 (Annexure "B"). As per the said amendment, the proviso to Rule 7 came to be substituted by the following proviso :- "Provided that such a person shall not be entitled to claim seniority over those persons who have been promoted before he becomes eligible for promotion on account of their having passed the Departmental Examination earlier than him notwithstanding that he was senior to the persons so promoted in the cadre from which promotion was given." 2.3 The respondent-authorities published provisional seniority list of RFOs as on 1.1.1991 alongwith their circular dated 30.8.1993. The petitioners made representation dated 28.9.1993 against the said provisional list (Annexure "C"). The respondent-authorities published final seniority list dated 3.2.1994 (Annexure "D") showing the position of the RFOs as on 1.1.1991 and in the said final seniority list, the petitioners are shown at Sr. Nos. 242 and 243 respectively. The petitioners have prayed for the following reliefs in Special Civil Application No. 6325/94 :- "For directing the respondent-authorities - (A) to fix the seniority of the petitioners and others in the cadre of Range Forest Officers (RFOs) in accordance with the amended rule 7 at Annexure "B" to the petition. (B) to consider the case of the petitioners for promotion to the post of Assistant Conservator of Forest (ACF) above those juniors of the petitioners who were not promoted to the post of ACF till July, 1990 when the petitioners became eligible for the said post. (C) to consider the case of the petitioners for promotion to the next higher post as per prayer "B" and confer upon them all consequential benefits of promotion, pay fixation, seniority, etc. if found fit for promotion." 2.4 When the petition came up for preliminary hearing before this Court on 3.5.1994, the following order was passed :- "Rule returnable on 27.6.1994. By way of ad-interim relief, respondents are directed not to fill up two promotional posts of Assistant Conservator of Forests till the disposal of this petition." 3. Special Civil Application No. 7611 of 1998 has been filed by two other RFOs contending that for giving promotions after the amendment of the Rules on 6.3.1993 (para 2.3), the seniority list of RFOs as on 1.1.1991 prepared on the basis of the unamended Rule 7 cannot be acted upon for promotion to the post of ACFs after 6.3.1993. They have prayed for appropriate writ, order and directions :- "(A) Declaring that the impugned gradation list dated 3.2.1994 at Annexure VII is irrational, discriminatory, in violation of Articles 14 and 16 of the Constitution of India and, therefore, void and quashing and setting aside the same. (B) Declaring that the petitioners are entitled to be considered for promotion to the post of ACF from the date of passing the departmental examination, i.e. June 1990 on the basis of a gradation list framed under the Rule 22 of the Rangers Recruitment Rules and are also entitled to claim seniority above all other RFOs who are junior to the petitioners but have been promoted to the post of ACF because of their having passed the departmental examination earlier but having been promoted after the petitioners have passed their departmental examination. (C) Directing the respondents to consider the cases of the petitioners for promotion for the post of ACF prior to the consideration of any other RFOs who are junior to the petitioners. (D) Declaring that the old proviso to the rule 7 of the Examination Rules is ultra vires and permanently restraining the respondents from implementing or in any manner in furtherance of the said proviso, alternatively, (E) Declaring that the old proviso to the Rule 7 of the Examination Rule is not a rule of seniority and, therefore, no gradation list can be made on the basis of the said old proviso. (F) Permanently restraining the respondents from promoting or considering any junior officers to the petitioners for promotion to the post of ACF on the basis of the impugned gradation list." After issuance of notice, when the petition came up for preliminary hearing before this Court on 12.10.1998, the following order was passed :- "By way of interim order, the respondents are directed to continue the process of giving promotions to the post of Asstt. Conservator of Forests, Gujarat Forests Services Class-II, subject to the result of the petition. However, no final order shall be passed till the petition is heard on the question of interim relief. S.O. 19.11.1998." Thereafter on 11.3.1999, while refusing to grant interim relief, this Court directed as under :- "It is directed that the operation of the impugned seniority list and the promotion of the concerned Range Forest Officers shall be subject to the result of this petition. Ad-interim order made on 12th October, 1998 stands modified to the aforesaid extent." 4. Special Civil Application No. 3110 of 1999 has been filed by an RFO similarly situated as the petitioners of the above two petitions. In view of the controversy whether the amendment to the Rules made on 6.3.1993 was being applied, and whether can be applied, retrospectively or prospectively, in this petition the challenge is made to the unamended proviso to Rule 7 as existing prior to 6.3.1993 and prayer is also made to direct the authorities to refix the seniority in the cadre of RFOs ignoring the said proviso to Rule 7 of the Gujarat Forest Departments (Forest Officers Examination Rules, 1972 and to direct the respondent authorities not to grant promotion to the post of ACFs as per the seniority determined on the basis of the proviso to Rule 7. 5. Special Civil Application No. 449 of 1994 is filed by four RFOs who have challenged the communication dated 29.9.1994 (Annexure "G") by which the State Government in the Forest Department instructed the Principal Conservator of Forests to fix the seniority of RFOs in such a manner that the RFOs of 1979-81 batch selected earlier were required to be shown en-bloc seniors to the RFOs who were selected in 1980-81 batch without considering the date of their joining as RFOs. This petition is not directly connected with the controversy raised in the first three petitions but since reference is made to some of the Rules which are also subject matter of interpretation in the aforesaid petitions, this petition has also been heard alongwith the other petitions. 6. Before narrating the rival contentions of the parties, it is necessary to refer to a few relevant Rules which have a bearing on the controversy involved in this group of petitions. 6.1 Recruitment to the post of Rangers (subsequently redesignated as Range Forest Officers or RFO for brevity) was previously done under the Rangers (Subordinate Forest Service) Recruitment Rules, 1969 framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution. Appointment to the post could be made either by promotion from amongst Forest Officers or by direct selection. In this group of petitions, we are concerned only with direct recruitment. Rules 9, 10, 13, 14 and 16 of the said Rules read as under :- "9. The selected candidate shall be required to undergo practical training in the Forest for a period of eight weeks. During the period of practical training the candidate shall receive stipend and travelling allowance, as the Government may, from time to time, fix. 10. The candidate finally selected will be required to undergo training for the Rangers Course at the Northern Forest Ranger College, Dehradun or Southern Forest Ranger College, Coimbatore for a period of two years. 13. On successful completion of the Training Course from the Rangers' College, the candidate shall be appointed as a Ranger if he passes with higher standard certificate and as a Forester if he passed with lower standard certificate. 14. The seniority of the Rangers shall be governed by their respective ranks in the final examination, irrespective of the date of joining the service. 16. A candidate who has passed the Rangers' Course with lower standard, shall be eligible for promotion as a Ranger, after completion of a period of five years." (emphasis supplied) 6.2 In exercise of powers conferred by the proviso to Article 309 of the Constitution, the Governor of Gujarat also made the Rangers (Subordinate Forest Service) (Recruitment Examination) Rules, 1974 under which the Gujarat Public Service Commission is to hold a competitive examination comprising of written test followed by viva-voce and personality test for recruitment to the posts of Rangers (RFOs) in the Forest Department. The candidates passing the said examination are included in the Select List of candidates for recruitment to the posts of RFO and are sent for the training for the Rangers' Course at the specified institutions at Dehradun/Coimbatore. Rules 21 to 25 read as under :- "21. On successful completion of the Training Course from the Ranger's College, the candidate shall be appointed as a Ranger if he passes with higher standard certificate and as a Forester if he passes with lower standard certificate. 22. The seniority of the Rangers shall be governed by their respective ranks in the final examination at the Ranger's College irrespective of the date of joining the service. 23. The candidate who had passed the Rangers' Course with lower standard, shall be eligible for promotion as a Ranger, after completion of a period of five years. 24. The candidate appointed as a Ranger shall be required to pass the Departmental Examination and an examination in Hindi or Gujarati or both in accordance with the rules made by the Government in that behalf. 25. No candidate shall be allowed more than 2 chances for appearing at the examination provided that a candidate belonging to Scheduled Tribes or Scheduled Castes shall be allowed chances not exceeding four for appearing at the examination." (emphasis supplied) 6.3 In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor of Gujarat has also framed the Gujarat Forests Department (Forest Officers Examination) Rules, 1972 for regulating the conditions of service of persons appointed to the posts in the Gujarat Forest Service, Class II and III in the Forest Department, in so far as they relate to the passing of the Departmental Examination. The Rules are contained in the Government Notification dated 15.1.1972. The relevant Rules are Rules 4, 6, 7, 8 and 9. Rule 5 is relevant but the same only provides that the examination required to be passed under Rule 4 shall have to be passed in not more than three chances within the specified period. Two provisos to Rule 4(1) are not relevant here as there is a proviso for additional chances for persons belonging to reserved categories and also the proviso to the effect that the chances availed of under the said Rules shall be counted under the present Rules. "4.(1) In order to be eligible for promotion to the post of an Assistant Conservator of Forest, a Range Forest Officer appointed prior to the appointed date shall have to pass the examination within a period of 5 years from the date of his appointment Range Forest Officer unless he has been exempted from the passing the examination ; xxx xxx xxx xxx xxx (2) In order to be eligible for promotion to the post of an Assistant Conservator of Forests a Range Forest Officer appointed on or after the appointed date shall have to pass the examination within a period of five years from the date of his appointment as a Range Forest Officer unless he had been exempted from passing the examination provided that no Range Forest Officer shall be competent to appear at the examination unless he has completed two years' service as Range Forest Officer. xxx xxx xxxx xxxx xxx 6. (1) If a direct recruit for the post of Assistant Conservator of Forests fails to pass the examination as required under these rules, his services shall be terminated. (2) If a Range Forest Officer fails to pass the examination as required under these rules, he shall not be eligible for promotion as Assistant Conservator of Forests until he passes the examination. Provided that if in the case of any such person the State government is satisfied that he could not pass the examination at which he had his last chance for reasons beyond his control or that he failed to pass such an examination by a very narrow margin of marks, the State government may, after recording reasons in writing, give him one more chance to pass the examination. 7. A Range Forest Officer who fails to pass the examination within the period specified in rule 4 and according to the chances available to him under rule 5, shall, notwithstanding such failure be eligible to appear at any time in such examination on payment of an examination fee of Rs.30/- and if he passes the examination, he shall be eligible for promotion to the higher post. Provided that such a person shall lose his seniority and shall also become Junior to all those who may have passed the examination earlier than him. 8. A Range Forest Officer who passes the examination within the specified and in specified chances shall on his promotion to the post of Assistant Conservator of Forests be assigned seniority over a person, if any, who although being junior to him in the cadre may have been promoted to the higher post earlier by reason of his having passed the examination earlier. 9. In the event of a qualified Range Forest Officer not being available for promotion to the post of the Assistant Conservator of Forests, an unqualified Range Forest Officer, whose chances to pass the examination are not exhausted under rule 4 or 5 may be promoted to officiate as the Assistant Conservator of Forests subject to the condition that he shall be reverted on availability of a person qualified for promotion or on his failure to pass the examination within the specifgied period and according to the chances specified in rule 4 or 5, whichever even occurs earlier. Explanation : In this rule "a qualified Range Forest Officer' means a Range Forest Officer who had passed the Departmental Examination of a Range Forest Officer who is exempted from passing the said examination and the expression "an unqualified Range Forest Officer' shall be constructed accordingly. 6.4 By Government notification dated 6.3.1993, an amendment was made to the 1972 Rules for departmental examination by substituting the proviso to Rule 7 by the following proviso :- "Provided that such a person shall not be entitled to claim seniority over those persons who have been promoted before he becomes eligible for promotion on account of their having passed the Departmental Examination earlier than him notwithstanding that he was senior to the persons so promoted in the cadre from which promotion was given." 7. At the hearing of these petitions, Dr Mukul Sinha, learned counsel for the petitioners in first two petitions raised the following contentions :- (A) The Departmental Examination Rules of 1972 do not contain the Rules for determining seniority in the cadre of RFOs but they merely contain the Rules for determining the eligibility for promotion to the higher cadre of ACFs and, therefore, the seniority list for the cadre of RFOs has to be prepared only on the basis of Rule 22 of the RFO Rules of 1974 which is in pari materia with Rule 14 of the 1969 Rules. Hence, the seniority list dated 4.2.1994 of the RFOs prepared on the basis of the Departmental Examination Rules of 1972 is illegal and null and void ab-initio. (B) The proviso to Rule 7 of Departmental Examination Rules of 1972 whether before amendment or after amendment only restricts the scope of Late Latifs claiming seniority in the higher cadre of ACFs and it does not rob them of their seniority in the lower cadre of RFOs. In support of the said contention, strong reliance in placed on the decision of a Division Bench of this Court in 1985 (2) GLR 1077. (C) Assuming that the Departmental Examination Rules of 1972 contain the rules for determining seniority in the cadre of RFOs, all the matters relating to seniority in the cadre of RFOs and promotion to the cadre of ACFs after 6.3.19993 are governed by the Departmental Examination Rules of 1972 as amended by the Government Notification dated 6.3.1993 particularly the amendment to proviso to Rule 7. (D) Praying for a writ to direct the respondent-authorities to prepare the seniority list of RFOs for the purpose of promotion to the post of ACFs with effect from and after 6.3.1993 on the basis of the amended proviso to Rule 7 does not amount to praying for giving retrospective effect to the 1993 amendment because the petitions are filed only for praying for giving prospective effect to the said amendment i.e. with effect from the date of the notification containing the amendment to Rule 7. It is contended that the said amendment was made pursuant to the recommendations made by the General Administration Department through Government Resolution dated 2.4.1975 as modified by the Government Resolution dated 30.9.1978. (E) The entire object of the amendment to the proviso to Rule 7 was to soften the rigour of the loss of seniority which was being caused to late Latifs (who passed the Departmental Examination beyond the specified chances or beyond the specified period) but the respondent-authorities are acting illegally and inconsistent with the object of the amendement by acting upon the seniority list of RFOs as on 1.1.1991 even after the date of amendment (6.3.1993) as if there was no amendment to the proviso to Rule 7 of the Departmental Examination Rules of 1972. It is vehemently contended that service conditions pertaining to seniority are liable to alteration by subsequent changes that may be introduced in Rules and except to the extent of protecting promotions that have already been earned, the revised rules will operate to govern seniority and future promotion prospects of all persons in the concerned service on and after 6.3.1993. Strong reliance is placed on the decisions of the Apex Court in AIR 1982 SC 1064 (para 17), 1989 (4) SCC 689 (paras 16 & 17), 1997 (6) SCC 623, 1998 (4) SCC 598, 1997 (10) SCC 419 and 1999 (1) SCC 249. The last two decisions have been relied upon in support of the contention that while filling in vacancies, the existing Rules are required to be looked at and not the Rules which were in force at the time of preparation of the seniority list. 8. On the other hand, Ms Manisha Lavkumar, learned AGP for the respondent-authorities, Mr S.M. Mazgaonkar, Mr KB Pujara and Mr DC Dave, learned counsel appearing for the private contesting respondents have made the following submissions :- (1) The petitions deserve to be dismissed on the ground of suppression of material facts. (2) The petitions also deserve to be dismissed on the ground of delay, laches and acquiescence. (3) The petitions must also fail on the ground of non-joinder of necessary parties as all the persons whose seniority/gradation from promotion is likely to be affected are not joined as party respondents. Reliance is placed on the decisions in (1999) 3 SCC 453 and AIR 1985 SC 167. (3A) Unless specifically prescribed, the amended Rules would have prospective operation. In the present case, the amended proviso to relevant Rule 7 does not speak about its retrospective operation and, therefore, the same is required to be construed to have only prospective operation. Reliance is placed on the decision in AIR 1990 SC 405. (4) The benefit and right accrued to the contesting respondents under the then existing rules, framed under the proviso to Article 309 of the Constitution, for being considered for promotion as per the ranking already obtained on passing the departmental examination in the year 1986, cannot be taken away by the amendment dated 6.3.1993 as it would tantamount to applying the amendment with retrospective effect, and no statutory rule or administrative order can whittle down or destroy any right which has become crystallized and no rule can be framed under the proviso to Article 309 of the Constitution which would affect or impair the vested rights. Strong reliance is placed on the decisions in AIR 1987 SC 1676, 1986 Suppl.SCC 584 and AIR 1990 SC 405. (5) Amended rules of seniority would not apply to employees appointed long prior to the amendment. Reliance is placed on the decisions in AIR 1989 SC 1071 and AIR 1972 SC 670. (6)