(1) WP No. 3403/08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3403 of 2008 AND WRIT PETITION NO.3653 OF 2008 ----- WRIT PETITION NO.3403 OF 2008 1] Shriram s/o Gangaram Jadhav] R/o Santkrupa, Dattanagar-2] PETITIONERS. Degloor,Dst.Nanded & others] VERSUS 1] The State of Maharashtra ] Through its Secretary, ] RESPONDENTS. Department of Revenue and ] Forest,MS,Mantralaya, ] Mumbai and others. ] ----- Mr.S.B.Talekar,Advocate for the petitioners. Mr.U.K.Patil,AGP, for respondents No.1 to 3. ----- WITH WRIT PETITION NO.3653 OF 2008 1] Shri D.R.Bhosale, ] R/o Katgun, Tq.Khatav ] PETITIONERS. Dist. Satara & others ] VERSUS 2] The State of Maharashtra ] Through its Secretary, ] RESPONDENTS. Department of Revenue and ] Forest,MS,Mantralaya, ] Mumbai and others. ] (2) WP No. 3403/08 ----- Mr.S.B.Talekar,Advocate for the petitioners. Mr.U.K.Patil,AGP, for respondents NO.1 to 3. ----- CORAM : Naresh H. Patil and N.D.Deshpande, JJ. DATE : 24th June, 2009. ORAL ORDER : [ PER - NARESH H. PATIL, J.] 1] Heard. 2] Both the petitions involve identical issue and, therefore, they are disposed of by this common order. 3] The petitioners, who are Forest Guards, seek directions to respondents State to send them for the Foresters’ Training. 4] The learned counsel Shri.S.B.Talekar, appearing for the petitioners, submits that the petitioners are Forest Guards, they completed Forest Guards’ Training and stood first in rank in the training and in accordance with the Rules regarding Admission, Emoluments and Prospects of the Trainees in the Forest Guards’ Course of Six Months at the Forest Guard Training Schools, Shahapur - Pal, framed in the year 1972 by Forest Department, (for (3) WP No. 3403/08 short “the Rules of 1972”), they were sent to the Foresters’ training under a special case recommended by the officers of the Forest Department. In midway, their training was stopped or cancelled as applications/proceedings were filed before the Maharashtra Administrative Tribunal (for short “the Tribunal”) challenging the decision of the State Government in recommending 65 Forest Guards for the Foresters’ training and the Tribunal gave decision against petitioners. The counsel submits that they were not made parties to the proceedings before the Tribunal and as such they were affected by the impugned order of Tribunal. The thrust of the argument of learned counsel is that at least the petitioners, the Forest Guards, ought to have been permitted to complete the training course. Reference was made to the affidavit-in-reply filed initially by Mr.Dunda Balu Mukane, Assistant Conservator of Forests, who, according to counsel, had entirely supported the case of petitioners and had suggested the Court to quash and set aside the impugned order passed by the Tribunal. The learned counsel laid emphasis on the Rules of 1972, which we find at Exhibit “C” to the petition No.3403/2008. Much reliance was placed on Rule 11 of the said Rules framed by Department. 5] Rule 11 of the Rules of 1972 needs to be looked into, which reads thus: (4) WP No. 3403/08 “Rule 11. Forest Guards standing first in order of merit in the final examination at each of the Forest Guards School should be sent for training in the Refreshers Course at the Foresters’ Training School, Chandrapur irrespective of seniority. Such Forest Guards on successful completion of the training at the Refreshers’ Course, Chandrapur should be appointed as Forester against the sanctioned posts.” 6] The learned counsel for the petitioner does not dispute that in exercise of the powers conferred by Article 309 of the Constitution of India and in supersession of all existing rules, orders and instruments made in this behalf, Hon’ble the Governor of Maharashtra was pleased to make the rules regulating recruitment to the posts of Forester, Forest Guard, Ranger-Surveyor, Surveyor, Head Clerk Accountant and Clerk-cum-Typist (Recruitment) Rules, 1987 (for short “the Rules of 1987”). These Rules were notified in the Maharashtra Government Gazette dated 29th October, 1987. The learned counsel, therefore, urged that the petitioners be permitted to complete the Foresters’ Training Course. 7] Petitioners filed pursis in this Court stating that they will not claim promotion pursuant to rule 11 of the Rules of 1972 regarding admission to Foresters Training Course (Exhibit “C”). However, (5) WP No. 3403/08 they would be entitled to claim appointment by way of promotion or nomination, as the case may be, strictly in accordance with the Rules of 1987. 8] The learned counsel referred to the order passed by us on 28th April, 2009. Para five of our order reads thus : “5] The learned Assistant Government Pleader therefore shall take instructions as to whether the situation could be remedied and the anomaly could be removed by deleting last sentence appearing in Rule 11 (emphasis supplied above) or by adopting any other amendments to the recruitment rules. In absence thereof, fall out would be that in future no Forest Guard would be sent for training course under the garb of the fear that after completion of the training he would compete with others or he would be entitled for automatic promotion.” 9] The learned Asstt. Govt. Pleader Shri.U.K.Patil thereafter obtained fresh instructions from the State Government and the matter is being heard at admission stage now. In the submissions of learned Asstt. Govt. Pleader, the affidavit in reply filed on behalf of respondent State should not be read to accept the submissions of the counsel appearing for the petitioners that the State Government has, in fact, accepted the entire contentions and pleadings of the petitioners and virtually surrendered their right to put up (6) WP No. 3403/08 before the Court the clear position emerging out of the Rules, after this Court passed the order on 28th April, 2009. The endeavour of learned Asstt. Govt. Pleader is that he is supposed to assist the Court as an officer of the Court, and though in the affidavit-in-reply initially filed raises certain averments, the case of the State is required to be considered. The learned Asstt. Govt. Pleader specifically referred to para 9 of the affidavit in reply, which reads thus : “9. I further most respectfully say and submit that the Forester Training School was in force till 1987. The provision of such foresters who stood first in forest guards training for admission in Forester Training School was excluded after 1987 in the Recruitment Rules, 1987 for forester, forest guard and clerk etc.” 10] It was submitted by Shri.U.K.Patil, the learned Asstt. Govt. Pleader, that recently the Department issued an advertisement for recruitment of 15 posts of Foresters in Thane Region and they would be filled in by observing the Recruitment Rules of 1987. The copy of advertisement is placed on record. The same is taken on record and marked as Exhibit “X” for identification The learned Asstt. Govt. Pleader submitted that the Rules of 1987 clearly supersede the Rules of 1972. The Rules of 1987 issued by the Honourable the Governor of (7) WP No. 3403/08 Maharashtra, in exercise of powers conferred by Article 309 of the Constitution of India, have statutory force; and, therefore, placing reliance by the petitioner on the earlier Rule 11 of the Rules of 1972, would completely negate the effect of Rules of 1987. The learned Asstt. Govt. Pleader is instructed to say so in view of the communication dated 11th June, 2009, the copy of which is placed on record and marked as Exhibit “X” for identification. 11] We have extensively heard learned counsel Shri.S.B.Talekar and Shri.U.K.Patil appearing for contesting parties. We have perused the Rules framed in the year 1987. Rules 3(1)(a) and 3(1)(b) are relevant for the purpose, which read thus : “3(1) Appointment to the post of Forester in the Forest Department shall be made either; (a) by promotion of a suitable person from the Circle Gradation List of Forest Guards, on the basis of seniority subject to fitness, from amongst the persons holding the post of Forest Guard; or (b) by nomination from amongst candidates who - (i) .... (ii) .... (iii) .... (8) WP No. 3403/08 (iv) have passed the final examination of the Foresters’ Training Course of one year conducted by the Forest Department at any of the Foresters’ Training School of Government and;” 12] Under the Rules of 1987 a clear procedure is provided for appointment to the posts of Foresters. Forest Guards could be appointed as Foresters by way of promotion. The facility of appointment by nomination is also provided under Rule 3(1)(b) clause (iv) of 1987 Rules to the candidates who have passed the final examination of the Foresters’ Training Course of one year conducted by the Forest Department at any of the Foresters’ Training School of Government. Rule 4 speaks about appointment to the post of Forest Guard in the Forest Department. 13] By construing the provisions of these Rules, we find that it is not expected under the Rules that Forest Guards are provided training prior to their selection and appointment as Foresters for working as Foresters. Forest Guards do have an opportunity to be appointed as Foresters by promotions available under the Rules of 1987. In this scenario, the view earlier adopted by the State/Forest Authorities to refer 65 Forest Guards for training, would be a futile exercise as they would not be entitled to any benefit under the Rules (9) WP No. 3403/08 framed in the year 1987. It cannot be disputed that the Forest Guards have to undergo training which is applicable to Forest Guards. Placing reliance by petitioners on Rule 11 of the Rules of 1972 would be redundant in our view prima facie. 14] The State Government now has put up a stand through learned Asstt. Govt. Pleader that in supersession of Rules of 1972 the Rules of 1987 have been framed and they have statutory force. However, the State Government by its communication dated 24th April, 2007, by way of last opportunity and as a special case, recommended 65 Forest Guards for being sent to Foresters’ Training, which would be against the provisions of Rules of 1987. 15] We have perused the order passed by the Tribunal. The issue is discussed in detail by the Tribunal. We find that though some of the petitioners herein are not added as parties before the Tribunal or heard, that would not prejudice the petitioners. The Tribunal had considered the recruitment Rules, documentary evidence and the principles underlying the appointments of Foresters and Forest Guards elaborately. In exercise of our extra ordinary writ jurisdiction, we do not find any glaring error in the view adopted by Tribunal for causing interference in the impugned order. Both the petitions, therefore, deserve to be dismissed. (10) WP No. 3403/08 16] Both the petitions are dismissed. 17] Authenticated copy duly signed by Sheristedar of this Court be given to Asstt. Govt. Pleader, as per Rules. [ N.D.Deshpande,J.] [ Naresh H. Patil,J.] pcr/o/wp3403.08