JUDGMENT
T.K. Chandrashekhara Das, J.
1. The Union Public Service Commission had called for the applications for appointment of Assistant Conservator of Forests, in the Department of Forest, Government of Goa. The petitioner applied for the post and he was interviewed in June, 1981. By order dated 27-6-1981, which order was issued by the Union Public Service Commission, the petitioner was selected and recommended for the appointment to the post of Assistant Conservator of Forests, as evidenced by Exhibit ‘A”. By order dated 21-8-1981, Government of Goa, Daman and Diu offered appointment to the petitioner to the post of Assistant Conservator of Forests, of course, after successful completion of the training for which he was deputed on payment of stipend. The said order also stipulated that after successful completion of the training, he would be appointed in the Forest Department of Goa, in the pay scale of Rs. 650-30-740-35-810-EB-35-880-40-1000-EB-40-1200. It was also mentioned therein that the other conditions of the service will be governed by the relevant Rules and Orders issued from time to time. It may be mentioned here that the Rules which were in force at the time of petitioner’s appointment, are called “Goa, Daman and Diu Government Assistant Conservator of Forests (Sub-Divisional Forest Officer), Gazetted Posts Recruitment Rules, 1966”. These Rules came into force since 24-12-1966, which for convenience sake hereinafter called as the “old Rules”. The educational qualifications prescribed for the candidates for the selection as Assistant Conservator of Forests was Diploma of Forest Rangers Training from Forest Rangers College in India or equivalent. It was also mentioned in Column 7, which prescribed that the essential qualifications for the post of Assistant Conservator of Forests is that the candidates selected for the training will be required to pass at least a Bachelor’s Degree in Natural Science, Mathematics, Statistics, Geology, Mechanical Engineering, Civil or Chemical Engineering or Agriculture of a recognised University or equivalent qualifications. While these Rules were in force that the petitioner was selected and sent for training by the State Government. The petitioner’s training started in November, 1981 and was completed in October, 1983.
2. It may be mentioned here that as early as 1981 as spelt out from the letter of Ministry of Agriculture, Government of India dated 19-6-1981, as evidenced by Exhibit ‘C’, addressed to the Secretary, All States/Union Territories, Forest Department a proposal was mooted that the training period of those candidates selected by the Government and sent for training for appointment of the respective posts of the Forest Department, should be treated as in service trainees. Government of India has made it clear in that letter that the said proposal has been initiated on the basis of the various representations of some of the S.F.S. and Forest Rangers trainees of all over India. Government of India, therefore, called upon the States/Union Territories to examine the question of inclusion of the period of their training in service. As we have pointed out earlier, the petitioner completed his training in October, 1983 and he was actually appointed as per order dated 9-1-1984, appointing him as an Assistant Conservator of Forests with effect from 22-11-1983. In the meantime, old Rules were superseded by Government of Goa and in its place new Rules were framed under the Proviso to Article 309 of the Constitution of India with effect from 6-8-1982. Rules 7,8 and 9 of the new Rules, read as follows:
“7. Saving—Nothing in these Rules shall affect reservations, relaxation of age limit and other concessions required to be provided for Scheduled Caste and Scheduled Tribes and other special categories of persons in accordance with the orders issued by the Central Government from time to time in this regard.
8. These Rules will come into effect from the date of the Notification and will relate to appointments to the various posts made on or after this date.
9. These recruitment Rules are issued in supersession of the recruitment Rules existing for the post of Assistant Conservator of Forests.”
As per these new Rules, presumably in consonance with the proposal of the Government of India as evidenced by Exhibit “C’, as aforementioned, the educational qualification has remained unchanged, but added some physical fitness. It also added a note which reads as follows:—
“NOTE :—Selected candidates will be sent for training in the Forest Research Institute and College, Dehradun or in State Forest Service College and Research Centre, Burnihat (Assam-Mehgalaya Border) for the Associateship Diploma of the F.R.I. & C. Dehradun immediately after selection. Failure in the aforesaid training will debar them to claim retention in service as Assistant Conservator of Forests.”
As it is evident from these Rules, the candidates for the post of Assistant Conservator of Forests will be selected and sent for training in the Forest Research Institute and Colleges. If they are not successful in such training they will not be retained in the post of Assistant Conservator of Forests. In other words, on the basis of the educational qualification and physical standard, the candidates were to be selected and sent for training. The consequence is that the entire period of training of such candidates will be counted for the purpose of service and seniority. As pointed out earlier, the petitioner who was recruited under the old Rules and sent for training, but when he completed the training, new Rules came into force. A portion of his training period has overlaped to the period after coming into force of the new Rules. In other words, from 26-8-1982 onwards, his training, for nearly a period of 14 months was after coming into force of the new Rules. The limited prayer of the petitioner, therefore, in this petition is that as by virtue of the new Rules, the training period has been treated as in-service he is also entitled to count his training period at least from 26-8-1982 for the purpose of his seniority. The Government took the stand that since he has been recruited under the old Rules and sent for training, his entire period of training will be treated as under old Rules and he is not entitled for counting his training period as in-service. In this circumstance, a short question posed for our consideration in this petition is that whether after 26-8-1982, the petitioner’s training could be treated as under the old Rules or under the new Rules?
3. Before going to that contentious issue, it is necessary that some more intervening facts are to be considered here. The petitioner was confirmed in the service as Assistant Conservator of Forests with effect from 11-3-1991. In the meantime, a tentative seniority list of A.C.F. (inter se between the promotees and the direct recruites) was issued by the Government on 19-9-1989, wherein the petitioner was placed at Sr. No. 6 and one Mr. M.A. Desai at Sr. No. 7 (respondent No. 2). The tentative seniority list was finalised as per Govt. letter dated 4-7-1991, evidenced by Exhibit ‘G’, wherein the petitioner was placed at Sr. No. 3 and respondent No. 2 was placed at Serial No. 4. Though the petitioner was shown as senior to respondent No. 2, his regular service to the post of Assistant Conservator of Forests was reckoned only form 22-11-1983. That means, the period spent by the petitioner for the training has been excluded from reckoning his service. Meanwhile, correspondence was going on between the Government of India and State Government as to the question of inclusion of the training period as service of the candidates, who were recruited before coming into force of the new Rules. By letter dated 28-3-1985, as evidenced by Exhibit ‘O’, Government of Goa requested the Central Government to treat the training period of the candidates, like the petitioner, as in-service under the provisions of F.R. 9(6). To this letter of the State of Government, Government of India by letter dated 12-5-1987, as evidenced by Exhibit ‘K’-Colly informed that such candidates are not entitled for the salary for the training period, but the same will be taken into account for computing the eligibility for induction into the Indian Forests Service. The petitioner’s request for payment of salary and consideration of the training period as in-service was rejected by the Government of Goa. However, he has been told that the training period will be computed for Indian Forest Service.
4. The next promotion for the A.C.F. is to the post of Deputy Conservator of Forests. The petitioner had represented to the State Government as per Exhibit ‘I’ dated 6-6-1988 and he being the senior than the respondent No. 2, he was eligible to be promoted as Deputy Conservator of Forests, though he has not completed 8 years of service, required for promotion as A.C.F. under the Rules. He requested that taking into account his training period, he should deemed to have completed the required period of 8 years to be considered for the post of Deputy Conservator of Forests. As per the Rules, the post of Deputy Conservator of Forests should be filled by selection from amongst the Assistant Conservator of Forests, but the candidates who have not completed 8 years regular service in the post of Assistant Conservator of Forests, will not be considered for such promotion. Since the petitioner’s training period was not counted as service, the petitioner could not be considered and respondent No. v2 was considered though he was junior to the petitioner. D.P.C. met for filling up the post of Deputy Conservator of Forests on 4-11-1991. Three persons, namely Mr. Gaonkar, Mr. Dessai and Mr. Naik were considered for promotion. Immediately thereafter, the present petition was filed by the petitioner on 13-1-1992. Since respondents No. 2 and 3 are likely to be affected if the petitioner’s prayer in this petition is allowed, on their applications they were impleaded in this petition. Before the regular promotion of the respondents No. 2 and 3 was made as stated earlier, the petitioner was promoted on ad-hoc basis to the post of Deputy Conservator of Forests. The second respondent had filed a writ petition bearing No. 331/91, challenging ad-hoc promotion of the petitioner. This Court disposed of the said writ petition, observing thus:
“The Learned Government Pleader submitted that there are other aspects also which have to be adverted to, and that the second respondent had been selected for the post of Assistant Conservator even as early as 1981. These are matters which go contrary to the final seniority list dated 4-6-1991 and, therefore, in the absence of any appropriate modification of a seniority list made by a due process of law or otherwise, could not be entertained as a valid ground for disturbing the final seniority list or the established facts evidenced by eligibility.”
On a Civil Review Application filed as Review Application No. 12/91, which was disposed of by this Court by stating that appointment of Deputy Conservator of Forests should be made out of the eligible candidates. However, it may be noted that the observations made by this Court in Para (4) have not been reviewed. It is on this basis the D.P.C. met and respondent Nos. 2 and 3 were promoted regularly. Therefore, the question in this case is well defined, though at the same time it is a little complicated in the light of the submissions made by the Counsels appearing for the respective parties. A line of division has been drawn as far as rival contentions are concerned between the counsel for the petitioner on one side and the counsels for all the respondents on the other side.
5. Counsel for the petitioner submits that under the new Rules, which came into force with effect from 26-8-1982 have explicitly made it clear that the old Rules have been superseded and the qualifications and the conditions of service have been changed substantially. The petitioner’s counsel argues that the petitioner though was selected and sent for the training under the old Rules, his training has overlaped to the period covered by new Rules. Therefore, strictly going by the new Rules, the training period which started from the date of coming into force i.e. from 26-8-1982 should be treated as in-service and should be computed for his regular service, in which case, he will be completing minimum requirement of eight years at the time of consideration by D.P.C. for the regular promotion to the post of Deputy Conservator of Forests and in which case going by seniority, he would have been selected and promoted as Dy. Conservator of Forests on regular basis as against respondent Nos. 2 and 3.
6. Learned Counsels for the respondents, on the other hand, submit that since the petitioner was recruited under the old Rules, he was selected and offered appointment by Exhibit ‘B’ on 21-8-1981 when the old Rules were in force and, therefore, his term of appointment governed by Exhibit ‘B’ and it cannot be treated that the petitioner has been appointed under the new Rules. The Counsels further submitted that as the petitioner had been appointed under the old Rules and all the provisions of the old Rules should govern his appointment in all force, though his actual assumption of duty as Assistant Conservator of Forests was postponed to 22-11-1983 when the new Rules came into force. Learned Counsels for the respondents submit that there is no legal base for the contention of the petitioner because he does not acquire any right under the new Rules. All his rights and liabilities have been accrued under the old Rules and theory of principle of repeal as laid down under section 6 of the General Clauses Act, 1897 will apply. They argued that under section 6 of the General Clauses Act that the rights accrued will be kept intact and new Act cannot have any effect on his appointment. Some of the decisions of the Supreme Court pressed into service by the Counsel for the respondents in order to support their arguments and it is not necessary to refer to all those decisions. But in the case of P. Mahendran and others v. State of Karnataka and others, , it has been held that once the selection process is commenced under the Rules, any change in eligibility criteria by bringing an amendment to the Rules will have no retrospective effect. In other words, once selection process, according to the Rules is commenced, it is to be completed in accordance with the law as it stood at its commencement. The amended Rules would not invalidate the selection already made. In that case the qualification fixed as per the existing Rule for the post of Motor Vehicle Inspector was Diploma in Automobile Engineering or Mechanical Engineering. The Karnataka Public Service Commission called for applications and selected 200 candidates for the posts on the basis of the qualifications mentioned under the Rules. The candidates having Diploma in Mechanical Engineering also applied and selected. For some grounds and at the instance of some other candidates the matter went upto the High Court of Karnataka. The High Court granted interim stay, staying further proceedings and, therefore, the interview could not be completed. The High Court after sometime modified the interim order and permitted the Commission to make selection and appointment on condition that the appointments so made will be subject to the decision of the writ petition. Thereafter, the Commission completed the selection on 22-6-1987, which was published in the Karnataka Gazette dated 23-7-1987 and the candidates were also given intimation according to that. In the meanwhile Karnataka Government amended the Rules by a Notification dated 4-5-1987, omitting the qualification of Diploma in Mechanical Engineering for the post of Motor Vehicle Inspectors. The question that arose in that case was whether the selection made by Karnataka Public Service Commission under the old Rules should be ignored, without giving effect to it in view of the amendment of the Rules of those candidates already selected can be appointed since the selection process had already started much before the amendment of the Rules? Supreme Court in Para (4) discussed the issue as under:
“In view of the these facts, the sole question for consideration is as to whether the amendment made in the Rules on 14th May, 1987 rendered the selection illegal. Admittedly, the amending Rule does not contain any provision enforcing the amended Rules with retrospective effect. In the absence of any express provision contained in the amending Rule, it must be held to be prospective in nature. The Rules which are prospective in nature, cannot take away or impair the right of candidates holding Diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment. In fact the entire selection in the normal course would have been finalised much before the amendment of Rules, but for the interim orders of High Court.”
Thus we see that the Supreme Court in the above decision held that the amended Rules could not affect the existing right of those candidates, who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment on the reasoning that construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardships to those who have no control over the subject matter. The Supreme Court further held in that decision at Para 11 thus:
“If a candidate applies for a post in response to advertisement issued by Public Service Commission in accordance with recruitment Rules, he acquires right to be considered for selection in accordance with the then existing Rules.”
7. Another decision which was heavily relied upon by the Counsels for the respondents is Prafulla Kumar Swain v. Prakash Chandra Misra and others, . It is also a case which relates to Orissa Forest Service Class I Recruitment Rules, 1959. On a cursory reading of the facts of this case, it would appear that the facts of the present writ petition and the facts of the above decision of the Supreme Court are more or less similar; but on a close reading, it may not be so. In that case, one Prakash Misra was directly recruited to the Orissa State Forest Service Class II and after completion of the training for two years at Forest Service College, Burnihat, Assam, he was appointed as Assistant Conservator of Forests. He moved Administrative Tribunal challening the seniority of the Forest Rangers who were members of Orissa Subordinate Forest Service and were promoted as Assistant Conservators of Forests between his recruitment and the joining of service after training. According to him, the promotees who were promoted in the years 1981 and 1982 ought to have been assigned a place below him as per Recruitment Rules. He, therefore, contended that the seniority of direct recruits vis-a-vis the promotees, required to be decided on the basis of the Orissa Forest Service Class II Recruitment Rules, 1959. The Administrative Tribunal held that Prakash Chandra Misra is entitled to seniority to the post of Assistant Conservator of Forests over the promotees. In that case, the Rules under which Prakash Misra was recruited have been subsequently amended in 1984. The amended Rule 24 reads thus:
All Rules and orders corresponding to those Rules and in force immediately before the commencement of these Rules are hereby repealed.
Provided that nothing in these Rules shall be construed as affecting or invalidating the appointments already made or orders issued in accordance with the provisions of any Rules or orders in force immediately before the commencement of these Rules and that all such appointments and orders shall continue in force and shall, as far as may be, be deemed to have been made and issued under the appropriate provisions of these Rules;
Provided further that Government may, by order direct that any of the provisions of these Rules shall not apply to the officers already appointed under the Rules and orders in force immediately before the commencement of these Rules or shall apply to them with such modifications as the Government may specify in that order.”
In view of the peculiar facts and the change in law brought about by the amended Rules, the Supreme Court observed at Para (36), thus:
“Therefore, by the operation of deeming clause it only enables appointments made under 1959 Rules to be continued under 1984 Rules. Certainly, by the repeal of 1959 Rules, it cannot mean all those appointments cease. Nor again, the substantive provision of Rule 16, as stated above would govern. Therefore, Rule 24 has no application. Thus, we conclude that the seniority of direct recruits will have to be reckoned only from the date of appointment and not from the date of recruitment.”
In view of the saving clause of explanation under Rules 16 and 24 as aforesaid, the Supreme Court held that the petitioner’s appointment can be considered only by excluding the period of training. Relying upon these decisions, the counsels for the respondents argued that the seniority of the petitioner could be reckoned only from the date he completed his training, namely 22-11-1983. Prima facie, the arguments advanced on behalf of the respondents appear to be sound, based on the observations of the Supreme Court made in the two judgments.
8. But, coming close to the facts of the case in hand, the aforesaid judgments can very well be distinguished. As pointed out by Learned Advocate for the petitioner, Shri Nadkarni that in the present case, there were no saving clauses, when the new Rules came into force. He pointed out that the old Rules were entirely superseded and the new Rules were enacted. In such circumstances, if the amended Rules given an advantage to the existing candidate, who is governing by the Rules from 26-8-1982, cannot be denied. We find some force in his contentions. The offer of appointment Exhibit ‘B’ clearly stipulates that the conditions of service of the employees will be governed by the Rules from time to time. The Supreme Court in P. Mahendran v. State of Karnataka (supra) says that whatever advantage of rights accrued by a candidate under the old Rules, cannot be lost or neglected by amended Rules. Moreover, similar legal position arose in the case of Prafulla Kumar Swain v. Prakash Chandra Misra and others (supra). In that case, it has been held that in view of the express provision of the old Rules, the old Rules may regulate the seniority of Shri Prakash Misra even after the Rules come into force. The amended Rules expressly provided that whatever liability has accrued there, will continue. We see that this principle, however, cannot be straight away applied to the present case. In the present case, the petitioner did not seek that his seniority should be counted from the date on which he was deputed for training. His only limited request is that the training period which is spent after coming into force of the Rules, which say that the training period will be counted for the purpose of seniority has to be counted. No statutory rule prohibits from giving that advantage to the petitioner, since, as pointed out earlier, the old rules have been completely washed away w.e.f. 26-8-1982 and the new rules stipulate clearly and in explicit terms that no rules, particularly rule 8, say that these rules and the Notification will come into effect from the date of Notification and will relate to appointments made to various posts on or after this date. Therefore, the petitioner, on the complete repeal of the old Rules, can be treated only “appointee” under the new Rules. As pointed out in the case of Prafulla Kumar Swain v. Prakash Chandra Misra (supra), the recruitments and the appointments are different and the Memorandum evidenced by Exhibit ‘B’ can be treated only as “recruitment”. The appointment is made only thereafter by Exhibit ‘E’ dated 9-1-1984. The petitioner is undoubtedly an appointee under the new Rules and new Rules provide that the training period will be counted for service. Mr. S.G. Dessai, Senior Advocate appearing for the respondent No. 2 submits that if Clause (6) of the General Clauses applies, the petitioner will not get the benefit of the new Rules. All his service conditions will be governed by the old Rules. His appointment is complete and become final under the old Rules and the new Rules confer no advantage or impose no liability on him. This argument of Mr. Dessai would have been relevant if the petitioner seeks to treat the entire training period as service. He seeks seniority only from the date when the new rules came into force i.e. 26-8-1982. He is prepared to exclude the entire period of his training spent at the time when the old rules were in force. Moreover, his appointment was only after the implementation of the new Rules. These argument of Mr. Dessai, therefore, cannot be accepted. In these circumstances, we have no doubt in our mind to hold that the petitioner is entitled to count for the said period of training which he spent after coming into force of the new Rules for the purpose of seniority in the post of Assistant Conservator of Forests.
9. In another aspect, this problem can be viewed. It is borne out from the records that it has been desired by the Central and the State Governments that the training period should be counted as in service. Correspondence relating to the question between the Central Government and the State Government was going on since 1981. Subsequent amendment to the Rules in this respect also signifies that to implement that desire, the Government introduced new Rules. However, delay in framing the Rules deprives the petitioners from the benefits of the amended Rules. It appears from the correspondence that the Central Government had already taken a view that the candidates who had been sent for training before the amendment of the Rules, they would not be entitled to salary, but at the same time, both the Governments have agreed that the service of period for training will be counted for Indian Forests Service. Therefore, the intention of the Government is crystal clear from the correspondence and also from the amended Rules that except for salary that the training period spent by the candidates should be treated as in-service. In these circumstances, we are of the view that it would not be legitimate to hold that the petitioner is not entitled to count his training period, which he spent after coming into force of the new rules from reckoning to his seniority.
10. The counsels for the respondents argued that the petition is liable to be dismissed on the ground of laches. He submitted that if the petitioner is given seniority after counting his training period that he had spent, after coming into force of the new Rules and reckoning of the seniority for the purpose the settled seniority and the service to the post of Deputy Conservator of Forests to which the respondent Nos. 2 and 3 were promoted. We do not see much force in this contention. From 1981 onwards the question whether the training period should be considered as in-service or not is a question of debate between the Central Government and the State Government. The petitioner, right from the inception of training was making representations to consider his request. Even the Government also was very much conscious about the issue when the statement quoted in the earlier part of the Judgment was made on behalf of the Government before this Court in Writ Petition No. 331/91 as mentioned above. In November 1991, respondents No. 2 and 3 alone were considered for promotion when the petitioner was excluded and this petition has been filed as early as in January 1992. We do not think that the submission of the counsels for the respondents in this regard is sustainable. Issue of delay and laches have to be examined on the basis of the emergence of cause of action. The petitioner’s cause of action arose when D.P.C. met and promoted the respondents No. 2 to 4 in 1991. Immediately, the petitioner had approached this Court. It is relevant at this stage the observations of the Supreme Court in R.M. Ramual v. State of Himachal Pradesh and others, . In Para (19) of the judgment, the Supreme Court holds thus:
“It is true that the seniority list was prepared in 1971, but no prejudice was caused to the appellant by the seniority list, as he was holding the position of District Public Relations Officer all through. Moreover, the appellant was given pro forma promotion by the Government on or about August 7, 1973. It is only by the impugned order dated April 28, 1982 that the Government accepted the representation of the respondents No. 4 and 5 and directed that the inter se seniority of the appellant and of the said respondents was to be determined on the basis of their substantive ranks on November 1, 1966 and further directed that the respondents No. 4 and 5 would rank senior to the appellant. The cause of the action really arose to the appellant for moving the writ petition after he was communicated with the impugned order dated April 28, 1982. In our opinion, therefore, there has been no unreasonable delay on the part of the appellant to challenge the impugned order and, consequently, the final seniority list.”
In these circumstances, we do not agree with the contention of the counsels for the respondents that the petition is liable to be dismissed on the ground of laches.
11. In the result, the writ petition is allowed. Rule made absolute in terms of prayer Clauses (a) and (b) with the modification that the date shown therein as 6-8-1982 is modified and read as 26-8-1982. We make it clear that the petitioner is not entitled for difference of salary for the period he was sent for training in the Forest College.
12. In the circumstances, there shall be no order as to costs.