Case: OMKAR SINHA &amp; ANR Vs. SAHADAT KHAN &amp; ORS

Thereafter, as is true with any Government decision, of the nature involved, it is a time consuming affair. What is relevant is the legality of the matter and therefore, for the validity of the matter if it is a Government order, it has to be an order of the Governor, which he agrees with the learned senior counsel for the appellants, was passed only with the issuance of order dated 11.06.2012. He would further point out that the Court may not overlook the fact that the case of the writ petitioners in the writ petition was not based essentially on the withdrawal of the order dated 17.10.1977 by order dated 14.05.2009. Instead, the case was based on the order dated 17.10.1977 being completely eclipsed and suffering a natural death as a result of the issuance of the communication which is dated 14.12.2009. He would further submit that there is also no merit in the complaint that order dated 17.10.1977 was ultra vires. He would point out that actually under the Rules which were extant while there was a certain number of years to roll by as a Forest Guard before a person could be considered for promotion as Forester, in accordance with Rule 6(4) of the erstwhile Rules, however, the Government may prescribe by order, procedure which may be at variance from the existing rules. Therefore, the order dated 17.10.1977 was projected to be one such exercise. What is more, even in the newly enacted Rules for the State of Chhattisgarh, a provision corresponding to Rule 6(4) has been enacted. So, there is no merit in the case of the ultra vires also. 14. We think it is unnecessary to again burden the judgment with copious reference to case law as we have already referred to the paragraphs as contained in the Constitution Bench of this Court in Bachhittar Singh (supra). What is relevant is that under the Rules, Rule 14(1) provided for promotion from the post of Guard to Forester. Under the same, we notice Schedule IV. It is provided that a Forest Guard could be promoted after three years after training from the Forest Guards Training School or after 12 years or more years of service in the case of untrained Forest Guards. However, we must notice Rule 6. Rule 6 of the said Rules provides for method of recruitment. Rule 6 inter alia provides that recruitment to the service after commencement of the Rules which we notice is in the year 1967, can be made inter alia by promotion of members of the service mentioned in column 12 of Schedule IV. Thereafter what is relevant is sub Rule (4): (4) Notwithstanding anything contained in sub-rule (1), if in the opinion of the Government the exigencies of the service so require, the Government may adopt such methods of recruitment to the service other than those specified in the said sub-rule, as it may, by order issued in this behalf, prescribe. Therefore, it would appear to be the case of the State that it is not as if the 1977 order was in any manner contrary to the statutory rules and it was very much premised on the statutory rules. 15. We have already noticed the factual position. The appellants undoubtedly stood first in the training programme during the training as Forest Guards. There was a reorganisation of the State as we have noticed. The Government Order which would appear to be a Government Order in the undivided State of Madhya Pradesh continued in terms of the Reorganisation Act. Such Government Orders of the undivided State of Madhya Pradesh would undoubtedly continue to hold the field till it was revoked in the manner known to law. The Division Bench in the impugned judgment has proceeded on the basis that the Order dated 17.10.1977 was revoked by order dated 14.05.2009. It is, undoubtedly, true that in the said communication, it is addressed by the Secretary to the Principal Chief Forest Conservator. The proposed strike and the decision taken is referred to. At the same time, it all ends by requesting that the necessary proposal be submitted. It is thereafter that communication dated 14.12.2009 came to be made. Communication dated 14.12.2009 is not an order of the Governor or expressed to be made in his name. It is a communication, no doubt, issued by a Chief Forest Conservator. Therein, no doubt, reference is made to the demands made by the Employees Union and that the decision had been taken to give two additional increments to the trainees who stood first in the Forest Guard training in replacement of the earlier incentive of sending them for training as Forester. It is also stated that there is no need to send the candidates who stood first in the Forest Guard training for training as Forester. It is reiterated that as per the directions of the Chhattisgarh Government, the trainees who stood first are entitled for only 02 additional increments. We must notice that this communication does not bear the insignia of a Government Order, which alone would suffice to show that order dated 17.10.1977 stood withdrawn. Whereas we would find that the communication dated 11.06.2012 contains two specific signs. Firstly, it is expressly made in the name of the Governor. Secondly, it specifically revokes the communication dated 17.10.1977. The Division Bench has proceeded to consider the case based on the communication dated 14.05.2009 which we must note is a case which even the writ petitioners did not have. A perusal of the pleadings of the writ petition would show that the case of the writ petitioners was premised on the order dated 14.12.2009 bringing about the revocation of the order dated 17.10.77. Even the petitioners did not, in other words, set up a case that 14.05.2009 is an order revoking 14.05.2009. In matters of this nature, the role of proper pleadings must be emphasised for the parties join issue on the basis of the case which has been built up before the Court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. We think it is unnecessary to again burden the judgment with copious reference to case law as we have already referred to the paragraphs as contained in the Constitution Bench of this Court in Bachhittar Singh (supra).What is relevant is that under the Rules, Rule 14(1) provided for promotion from the post of Guard to Forester. Under the same, we notice Schedule IV. It is provided that a Forest Guard could be promoted after three years after training from the Forest Guards Training School or after 12 years or more years of service in the case of untrained Forest Guards. However, we must notice Rule 6. Rule 6 of the said Rules provides for method of recruitment.Rule 6 inter alia provides that recruitment to the service after commencement of the Rules which we notice is in the year 1967, can be made inter alia by promotion of members of the service mentioned in column 12 of Schedule IV. Thereafter what is relevant is sub Rule (4):(4) Notwithstanding anything contained in sub-rule (1), if in the opinion of the Government the exigencies of the service so require, the Government may adopt such methods of recruitment to the service other than those specified in the said sub-rule, as it may, by order issued in this behalf, prescribe.Therefore, it would appear to be the case of the State that it is not as if the 1977 order was in any manner contrary to the statutory rules and it was very much premised on the statutory rules.15. We have already noticed the factual position. The appellants undoubtedly stood first in the training programme during the training as Forest Guards. There was a reorganisation of the State as we have noticed. The Government Order which would appear to be a Government Order in the undivided State of Madhya Pradesh continued in terms of the Reorganisation Act. Such Government Orders of the undivided State of Madhya Pradesh would undoubtedly continue to hold the field till it was revoked in the manner known to law. The Division Bench in the impugned judgment has proceeded on the basis that the Order dated 17.10.1977 was revoked by order dated 14.05.2009. It is, undoubtedly, true that in the said communication, it is addressed by the Secretary to the Principal. The proposed strike and the decision taken is referred to. At the same time, it all ends by requesting that the necessary proposal be submitted. It is thereafter that communication dated 14.12.2009 came to be made. Communication dated 14.12.2009 is not an order of the Governor or expressed to be made in his name. It is a communication, no doubt, issued by a. Therein, no doubt, reference is made to the demands made by the Employees Union and that the decision had been taken to give two additional increments to the trainees who stood first in the Forest Guard training in replacement of the earlier incentive of sending them for training as Forester. It is also stated that there is no need to send the candidates who stood first in the Forest Guard training for training as Forester. It is reiterated that as per the directions of the Chhattisgarh Government, the trainees who stood first are entitled for only 02 additional increments. We must notice that this communication does not bear the insignia of a Government Order, which alone would suffice to show that order dated 17.10.1977 stood withdrawn. Whereas we would find that the communication dated 11.06.2012 contains two specific signs. Firstly, it is expressly made in the name of the Governor. Secondly, it specifically revokes the communication dated 17.10.1977. The Division Bench has proceeded to consider the case based on the communication dated 14.05.2009 which we must note is a case which even the writ petitioners did not have. A perusal of the pleadings of the writ petition would show that the case of the writ petitioners was premised on the order dated 14.12.2009 bringing about the revocation of the order dated 17.10.77. Even the petitioners did not, in other words, set up a case that 14.05.2009 is an order revoking 14.05.2009. In matters of this nature, the role of proper pleadings must be emphasised for the parties join issue on the basis of the case which has been built up before the Court.