IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 9730 of 2008 (OA No.2981 of 2003 Judgment reserved on: 2.3.2010 Date of decision: 8.3.2010 Rajeev Kumar & Ors. ….. Petitioners. Vs. State of H.P.& Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioners : Mr. Surinder Sharma, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. P.M. Negi, Dy Advocate General and Mrs. Shubh Mahajan, Dy. Advocate General. Kuldip Singh, Judge. The petitioners in the writ petition have prayed for quashing office memorandum dated 15.3.2003 Annexure A-4 with the directions to the respondents to declare the result of the petitioners and to appoint them on the posts of Forest Guards under their 15% quota, in case they have qualified in the selection/interview with all consequential benefits. 2. The case of the petitioners is that all of them have served as Home Guards under respondent No.3 for more than 5 years. The Govt. of Himachal Pradesh took a policy decision to induct Home Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Guard personnel into the Forest Department by providing 15% quota for their selection and recruitment on the posts of Forest Guards. The policy decision was put before the Council of Ministers and after obtaining approval, the respondents were directed to comply with the said policy decision of the Govt. forthwith and if necessary the amendment in the Recruitment and Promotion Rules of these categories was to be made as provided in Annexure A-1 dated 8.8.2002. 3. In compliance to Govt. policy decision, the respondents vide letter dated 20.12.2002 had decided to provide 15% quota to the Home Guards for their recruitment and appointments to the posts of Forest Guards. The Home Guards were provided 15% quota circle wise amounting to reservation of 59 posts vide Anneuxre A-2. As per the aforesaid policy decision the selection of the candidates was to be made on the basis of State level merit. The respondent No.2 vide letter dated 23.12.2002 Annexure A-3 called upon respondent No.3 to submit the names of all the eligible Home Guards candidates to the concerned Conservator of Forests latest by 4.1.2003. In pursuance to Annexure A-3, respondent No.3 had submitted the names of petitioners and others to the concerned Conservator of Forest within the stipulated time and the petitioners were called for their selection and after qualifying in the physical test, they were called for the interview. The petitioners being eligible qualified and having faired well in the selection/interview for the posts of Forest Guards had legitimate expectations that they would be successful in their interview etc. and their result would be declared very soon and …3… they would be appointed against their reserve posts as Forest Guards. 4. The respondent No.1 instead of acting upon the policy decision of the Govt. approved by the Council of Ministers and other instructions vide letter dated 15.3.2003 Annexure A-4 in an arbitrary manner ignored the 15% reservation granted to the Home Guards and unilaterally decided to fill up all the 393 posts of Forests Guards from amongst the departmental candidates. The petitioners were shocked by the aforesaid decision, they submitted a representation dated 25.3.2003 Annexure A-5 to respondent No.1 with a copy to respondent No.2. The petitioners had been meeting the respondents again and again but without any result. The petitioners thereafter filed the petition. 5. It has been alleged that respondents had appointed more than 200 Class-IV employees of H.P. State Forest Corporation on the posts of Forest Guards but they have ignored the superior merit of the petitioner. The non-consideration of the petitioners for appointments on the posts of Home Guards in view of letter dated 15.3.2003 Annexure A-4 is illegal, arbitrary and discriminatory and in violation of Articles 14 and 16 of the Constitution. The office letter dated 15.3.2003 Annexure A-4 indicates that the matter was never put before the Council of Ministers for its reversal of earlier decision nor such approval was obtained by the respondents. The letter dated 15.3.2003 at the most is prospective in its implementation and can not be made effective from retrospective date nullifying the eligibility and the rights of the petitioners for appointments to the …4… posts of Forest Guards. There were about 990 vacancies of Forest Guards. Out of 990 vacant posts available, the respondents had appointed only 393 Forest Guards. In this manner there are still 597 vacant posts available with the Forest Department and there is no difficulty in implementing the Govt. policy for appointing the petitioners to the said posts. 6. The perusal of Annexure A-4 further indicates that in all 393 posts of Forest Guards were to be filled up out of short listed departmental candidates; however, as per final seniority list Annexure A-7 the respondent had recruited and appointed more than 200 Class-IV employees of H.P. Forest Corporation who were in no way departmental candidates. As per Annexure A-2 dated 20.12.2002 the Class-IV employees of the H.P. State Forest Corporation and other categories such as Ex-Servicemen, Home Guards and Sports persons constituted non-departmental candidates and were similarly situated. Therefore, non-consideration of the petitioners and other Home Guards candidates while selecting and appointing Class-IV candidates of H.P. State Forest Corporation is highly illegal and arbitrary and without any rational basis. There were 597 vacancies existing in the Forest Department and therefore, there is no justification in not appointing the petitioners to the said posts under 15% quota. 7. The respondents No.1 and 2 contested the petition by filing reply in which by way of preliminary objections it has been submitted that Govt. of Himachal Pradesh had accorded approval for filling-up 393 vacant posts of Forest Guards through Limited Direct …5… Recruitment (IDR) from amongst eligible Class-IV employees of Forest Department and H.P. State Forest Corporation and other categories such as Ex-servicemen, Home Guards personnel, Sports persons etc. vide letter dated 12.12.2002 Annexure R-1. The Government has also granted relaxation under Rule-14 of the Recruitment and Promotion Rules for Limited Direct Recruitment of Forest Guards from amongst Class-IV employees of the Forest Department and H.P. State Forest Corporation as a one time measure vide letter dated 12.12.2002 Annexure R-2. The process to fill-up the posts of Forest Guards was started on 20.12.2002, but due to declaration of H.P. Legislative Assembly Election 2003 notified on 10.1.2003 the appointment orders could not be made during imposition of code of conduct period i.e. upto 7.3.2003 in view of letter dated 3.8.2003 Annexure R-3. 8. The Govt. of Himachal Pradesh vide letter dated 15.3.2003 Annexure R-4 have decided that on going selection process including interview shall be stopped and result if not declared shall be withheld. Similarly where results were declared but appointments were not made, such appointment orders were withheld keeping in view aforesaid instructions, therefore, recruitment of Forest Guards was not made during the said period 9. The Govt. of H.P. vide Principal Secretary (Forests) letter No.FFE-A(B) 2-19/96- Part dated 15.5.2003 had decided that all the 393 posts of Forest Guards are to be filled-up out of the short listed departmental candidates and the remaining vacancies shall be filled- up through direct recruitment in due course of time and the question …6… of quota for the Ex-servicemen and others shall be decided at that point of time in the light of the existing policies, Rules of the Govt. as this was the Limited Direct Recruitment and the selection to be made amongst the Class-IV employees of Forest Department and H.P. State Forest Corporation who have rendered three years regular service as per notification dated 12.12.2002 Annexure R-2. 10. In compliance to Govt. instructions, the Conservator of Forests (T) in H.P. were allowed/requested vide office letter No.Ft.440-13/80(E.II) X dated 29.9.2003 to fill up 393 posts of Forest Guards from amongst the eligible Class-IV employees of the H.P. Forest Department and the H.P. State Forest Corporation on the basis of physical test/interview held by them on 9th and 10th January, 2003. In these circumstances, Conservator of Forests (T) have issued offers of appointments to the selected/allotted candidates in accordance with the Recruitment and Promotion Rules and other instructions pertaining to Forest Guards. The Home Guards candidates have not been considered for appointment as Forest Guards against 15% quota under Limited Direct Recruitment of Forest Guards and will be considered while making direct recruitment in future. The appointments have been made in accordance with the Govt. orders/notification dated 12.12.2003 Annexure R-2. Therefore, petition is not maintainable. 11. The respondent No.3 had filed separate reply and has stated that the names of applicants were sent to the concerned Conservators of Forest by the Commandant Home Guards vide letter dated 1.1.2003. The petitioners had filed rejoinder to the reply of …7… respondents No.1 and 2 and reiterated their stand taken by them in the petition. 12. The grievance of the petitioners is that respondent No.1 State had taken a policy decision to induct Home Guards Personnel in the forest Department by providing 15% quota for their selection and recruitment on the posts of Forest Guards, process was started for the inducting Home Guards in the Forest Department as Forest Guard. The petitioners Home Guards even appeared in the selection/interview for this purpose but their result was not declared. Instead vide letter dated 15.3.2003 Annexure A-4, 15% quota granted to Home Guards was withdrawn and all 393 posts of Forest Guards were decided to be filled in from amongst departmental candidates. It has been submitted on behalf of the petitioners that employees of the H.P. State Forest Corporation were appointed by considering them departmental candidates which is in violation of Recruitment and Promotion Rules. It has been contended that as per Annexure A-2 dated 20.12.2002, Class-IV employees of the H.P. State Forest Corporation and other categories such as Ex-servicemen, Home Guards and Sports persons constituted non-departmental candidates and were similarly situated, but petitioners Home Guards candidates were not considered while selecting and appointing Class-IV candidates of H.P. State Forest Corporation. 13. It has been contended on behalf of the respondent No.1 that initially 393 vacant posts of Forest Guards were to be filled in through Limited Direct Recruitment from amongst eligible Class-IV employees of Forest Department and H.P. State forest Corporation …8… and other categories such as Ex-servicemen, Home Guards personnel, Sports persons etc. vide letter dated 12.12.2002 Annexure R-I. The Himachal Pradesh Govt. had also granted relaxation under Rule-14 of the Recruitment and Promotion Rules for Limited Direct Recruitment of Forest Guards from amongst Class-IV employees of the Forest Department and H.P. State Forest Corporation as one time measure vide letter dated 12.12.2002 Annexure R-2. In these circumstances the process to fill up the posts of Forest Guards was started on 20.12.2002, but due to H.P. Legislative Assembly Election, 2003 appointment orders could not be made. 14. It is the case of respondent No.1 that Government vide letter dated 13.3.2003 Annexure R-4 have decided that on going selection process including interview shall be stopped. Therefore, no recruitment of Forest Guards was made. On 15.5.2003 it was decided that all 393 posts of Forests Guards are to be filled up out of the short listed departmental candidates and the remaining vacancies shall be filled up through direct recruitment in due course of time. The question of quota for the Ex-servicemen and others shall be decided at that point of time in light of the existing Policies, Rules of the Government. It is the case of respondents that it was Limited Direct Recruitment and the selection was to be made from amongst the Class-IV employees of Forest Department and H.P. State Forest Corporation. 15. Forest Farming and Environmental Conservation Department notification dated 15.11.1978 published in the Gazettee …9… on 5.3.1979 provides the Himachal Pradesh Deputy Forest Rangers and Forest Rangers and Forest Guards Class III ( Executive Section) Recruitment, Promotion and Certain Conditions of Service Rules, 1978. Rule 7 provides the method of recruitment and educational qualification shall be as given in the Annexure. The column 11 of the Annexure for the post of Forest Guards is as follows:- Method of Recruitment whether by direct recruitment or by promotion/transfer/deputation and percentage of vacancies to be filled by various methods Direct recruitment.. 90% Limited selection of Class IV Employees by limited test ..10%. 10% posts in the cadre of Forest Guards shall be filled by limited competitive test ‘from out of the Class IV employees of the ‘Forest Department with requisite ‘qualification and experience as given in ‘Col.9”. 16. The Recruitment and Promotion Rules in respect of the Himachal Pradesh Deputy Forest Rangers and Forest Rangers and Forest Guards Class III (Non-Gazetted Executive Section) notified vide notification dated 15.11.1978 were repealed for Forest Guards vide Govt. notification dated 1.2.2003 when Recruitment and Promotion Rules for the posts of Forest Guards ( Class-III), ( Non Gazetted Executive Section) in the Department of Forest, Himachal Pradesh were notified. In the present case the selection process was started before coming into force of the new Recruitment and Promotion Rules for the posts of Forest Guards in the department of Forest, Himachal Pradesh. In these circumstances the Recruitment and Promotion Rules of Forest Guards of the year 1978 are relevant. According to Recruitment and Promotion Rules of the year 1978, Forest Guards in the Department of Forest Govt. of Himachal Pradesh are to be recruited 90% by Direct Recruitment and 10% by way of Limited selection of Class-IV Employees. In 1978 Rules, it …10… has further been provided that 10% posts in the cadre of Forest Guards shall be filled by limited competitive test from out of the Class- IV Employees of the forest Department with requisite qualification. 17. It has been submitted on behalf of the petitioners that under this 10% quota only the employees of the Forest Department are eligible and no other employees. However, in the present case the department has considered Class-IV employees of H.P. State Forest Corporation for appointment as Forest Guards in the department of Forest of Himachal Pradesh Govt. in contravention of Rules. It is also the grievance of the petitioner that they were illegally not given appointments for the posts of Forest Guards in the Forest Department. The grievance of the petitioners is that Govt. had taken the policy decision for giving 15% quota to the Home Guards for appointment as Forest Guards in the Forest Department but Govt. has violated this decision by not adhering to the decision. On the contrary Class-IV employees of the H.P. State Forest Corporation were illegally considered and appointed as Forest Guards in violation of Recruitment and Promotion Rules of the year 1978 18. There is no denial of the fact that vide Annexure A-1 dated 8.8.2002, the Govt. with the approval of Council of Ministers had decided to provide 15% posts to the Home Guards in the direct recruitment to Forest Guards in Forest Department who have put in three years satisfactory service in Home Guards and also possess the requisite educational qualifications and physical standard for direct recruitment. In Annexure A-1, it has also been provided that …11… amendment in the Recruitment and Promotion Rules of these categories may be done, if necessary to implement the decision. 19. The Annexure A-1 is very clear that 15% quota for Home Guards was provided for direct recruitment and Recruitment and Promotion Rules were to be amended accordingly, if required. The 1978 rules for the recruitment of Forest Guards provide that 90% recruitment shall be made by way of direct recruitment and 10% by way of Limited selection of Class-IV employees of the Forest Department . The Home Guards Personnel under no circumstance could be considered in the 10% quota provided in the Rules which is meant for Limited selection for Class –IV employees of the Forest Department. The Home Guards Personnel could be adjusted in the direct recruitment quota of 90% and that was possible only through amendment of the 1978 rules. It is not the case of the petitioners that 1978 rules were amended to include 15% quota of Home Guards Personnel. The policy decision of the Government to give 15% quota under direct recruitment to Home Guards Personnel for their recruitment as Forest Guards in the Forest Department could not supersede the statutory Rules framed under Article 309 of the Constitution. Thus, even if, some decision was taken by the Government with the approval of the Council of Ministers that has no bearing on Recruitment and Promotion Rules of the year 1978 till those Rules were amended in accordance with law. In these circumstances, the petitioners cannot take benefit of 15% quota for recruitment as Forest Guards in the Forest Department. …12… 20. The connected argument of the learned counsel for the petitioners is that before issuing letter dated 15.3.2003 Annexure A-4 approval of the Council of Ministers was not taken as the decision to provide 15% quota to Home Guards Personnel mentioned in Annexure A-1 was taken after taking approval of the Council of Ministers and therefore, Annexure A-4 letter dated 15.3.2003 is not sustainable. This argument does not come to the rescue of the petitioners in as much as for providing 15% quota to the Home Guards Personnel even if, Council of Ministers have approved such quota but Recruitment and Promotion Rules, 1978 were not amended to give statutory effect to the approval given by Council of Ministers. The Govt. has taken the stand that posts were filled in on the basis of Limited Direct Recruitment and not by way of direct recruitment. It has been submitted on behalf of the respondents that the Home Guards Personnel appointment as Forest Guards was to be done under direct recruitment as per rules but the recruitment in question was limited direct recruitment which was only available to department candidates and the employees of the Himachal Pradesh State Forest Corporation 21. The State Govt. had granted relaxation under Rule 14 of the Recruitment and Promotion Rules in favour of Class-IV employees of the Forest Department and H.P. State Forest Corporation as one time measure vide letter dated 12.12.2002. In presence of relaxation granted in favour of the employees of Forest Department and H.P. State Forest Corporation for considering them for limited direct recruitment to the posts of Forest Guards in Forest …13… Department, the petitioners have no case to agitate that employees of Forest Department and H.P. State Forest Corporation were illegally considered for appointment as Forest Guards in the Forest Department. 22. The learned counsel for the petitioners has lastly submitted that the petitioners should have been considered at least under the direct quota but it is the stand of the respondents that the recruitment in question was not for direct quota, it was only for limited direct recruitment which was meant for employees of the Forest Department and H.P. State Forest Corporation. It has been submitted that petitioners were called for selection/interview. They participated in the selection process but their result was not declared. It is the case of the petitioners that they were selected, assuming they were selected but mere selection on the post does not give right of appointment, more particularly in the present case when it has not been established by the petitioners that under the Recruitment and Promotion rules they were entitled to consideration against 15% quota as claimed by them. The petitioners have failed to make out any case. 23. No other point was urged. 24. The result of the above discussion, the petition fails which is accordingly dismissed. March 8, 2010 (Kuldip Singh), (sks) Judge.