JUDGMENT
K. Balakrishnan Nair, J.
1. Common questions arise for consideration in these Writ Petitions and therefore, they are heard together and disposed of, by this common judgment.
2. The inter se seniority dispute between direct recruits and promotees to the Indian Forest Service (hereinafter referred to as “I.F.S.”), is the main point that arises for decision in these cases. A Division Bench of this Court referred these cases to the Fuil Bench, by reference order dated 1.2.2006. The main point referred for decision by the Full Bench is, whether a promotee I.F.S. Officer can get an year of allotment, which is earlier to the date of attainment of eligibility for induction of such promotee from the State Forest Service to the I.F.S. The reference order reads as follows:
The petitioners were occupying posts in the State Forest Service. They were entitled to be inducted to Indian Forest Service in accordance with the Indian (Forest) Service Rules, 1966, as per Rule 4(2)(b) thereof. Rule 6(3) of the said Rules provides that such induction shall be ‘in the senior time scale of pay’. Rule 8 further provides that such recruitment, including on promotion, shall be in tune with the Regulations that the Central Government may frame in consultation with the State Governments and the Union Public Service Commission. Regulations were so framed as contained in Indian Forest Service (Appointment by Promotion) Regulations, 1966. Third proviso to Regulation 5 of the said Regulations reads as follows:
provided that the committee shall not consider the case of a member of the State Forest Service unless, on the first day of January of the year in which it meets, he is substantive in the State Forest Service and has completed not less than eight years of continuous service (whether officiating or substantive) in (post(s)) included in the State Forest Service.
Committee means ‘a committee set up in accordance with Regulation 3’.
2. The petitioners were considered by the committee in the year 2000 and they were inducted to Indian Forest Service with reference to the vacancies available in the year 1988 onwards. After having so inducted, as they have to be given senior time scale in accordance with Rule 6(3) of the Recruitment Rules, allotment was made and each of the writ petitioners were allotted an year from 1983 onwards, and their seniority was, accordingly, fixed below the officers, who were directly recruited prior to 1983 and who were availing senior time scale of pay, but above the persons directly recruited after 1983 and before 1988. They felt aggrieved because of this earlier allotment of the writ petitioners, rather than the date of their eligibility in terms of the proviso to Regulation 5 extracted above, and challenged their allotment as well as assignment of seniority based on such allotment, before the Central Administrative Tribunal. The Central Administrative Tribunal upheld the challenge. That is why the writ petitioners have come up before this Court assailing the order of the Central Administrative Tribunal.
3. The contention of the writ petitioners, assailing the order of the Central Administrative Tribunal impugned in these Writ Petitions, is that allotment is different from induction to the service. Recruitment Rules and the constraints regarding minimum period of 8 years’ service prescribed in Regulation 5(2) framed in accordance with Rule 8 is only for the purpose of induction; and once they are inducted, they are, going by Rule 6(3) of the Recruitment Rules, entitled to senior scale, and they have to be placed in the seniority list, just below the officer, who is already occupying such senior post on the date of their induction. In other words, they are entitled for, on induction on completion of 8 years in the State service, allotment of a date earlier than the date of such eligibility for induction, going by Regulation 5(2) read with Rule 8 referred supra.
4. At the same time, Explanation under Rule 3(c) of the Indian Forest Service (Regulation of Seniority) Rules, 1968, reads as follows:
Explanation 1:–In respect of an officer appointed to the Service by promotion in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules, the period of his continuous officiation in a senior post shall for the purposes of determination of his seniority, count only from the date of the inclusion of his name in the Select List, or from the date of his officiating appointment to such senior post, whichever is later:
On its basis, it is contended by the contesting respondents in these Writ Petitions, who have won the case before the Tribunal below, that the seniority of the persons appointed in accordance with Rule 8 of the Recruitment Rules, shall have to be counted, going by this Rule, either from the dale of select list or from the date of officiation in the Indian Forest service, whichever is earlier. In such circumstances, they cannot get a date earlier than this, for the purpose of seniority.
5. This contention is resisted by the writ petitioners, placing reliance on O.S. Singh and Anr. v. Union of India . Much reliance is placing on paragraph which reads as under:
This provision envisages assignment of the year of allotment to a promotee officer with reference to the year of allotment assigned to the juniormost among the officers recruited to the Service by direct recruitment who had officiated continuously in a senior post from a date earlier in the date of commencement of the officiation on a senior post in the service by the promotee officer. In other words, for the purpose of seniority, a promotee officer is treated on a par with a directly recruited officer who had been officiating in a senior post. This appears to be so for the reason that under Rule 6 of the Recruitment Rules the initial appointment of a person appointed by way of direct recruitment is in the junior time scale while the initial appointment of a person appointed to the service by way of promotion from the State Police Service is in the senior time scale. The governing factor for assignment of a year of allotment under Rule 3(3)(b) is, therefore, the continuous officiation in a senior post by a directly recruited officer as well as the promotee officer.
It is contended, based on this passage, that allotment can even be earlier than the induction, depending on the situation of each case. Therefore, the Tribunal went wrong in construing that there cannot have an allotment earlier than the date of induction.
6. But from O.S. Singh’s case, we do not find consideration of a provision similar to Explanation I extracted above. Explanation I also has got some relevance in the matter of assigning an year of allotment as regards the promotees.
7. Apart from that, it is also a basic question in the service parlance whether an incumbent inducted to a service, on attaining the minimum eligibility in terms of the Rules as contained in Regulation 5(2) of the Regulations, read with Rule 8 of the Recruitment Rules, could be given an allotment earlier than he becomes eligible for induction into that service.
This being a question of law of substantial importance and not directly considered in O.S. Singh’s case, we are of the view that it requires consideration by a larger Bench.
Accordingly, we refer the case to a Full Bench.
W.P. (C) No. 11158/2005:
3. For referring to the facts and exhibits, W.P.(C) No. 11158/2005 is treated as the main case. The petitioners were advised by the Kerala Public Service Commission for appointment to the post of Assistant Conservator of Forests in the Kerala Forest Service on 31.5.1976. On completion of two years’ training, they were appointed as Assistant Conservators of Forests on 1.5.1978. The members of State Forest Service are eligible to be considered for promotion to I.F.S., on completion of eight years’ service. On account of a wrong seniority list of Assistant Conservators of Forests, the petitioners’ claim for appointment by promotion to I.F.S., was not considered in 1987. So, they filed O.P. No. 5238/1987 before this Court. The said O.P was allowed by a learned single Judge, along with other connected cases. W.A.No. 878/1994 and connected Appeals attempted against the said common judgment were heard and dismissed by the Division Bench on 17.3.1995. In that judgment, the Division Bench, also directed to recast the seniority list of Assistant Conservators of Forests, by assigning appropriate rank to the petitioners and other direct recruits, in the said cadre. Their further claim for promotion to I.F.S., was also directed to be considered, in the light of the revised seniority list, on finding that their claim for promotion was overlooked. The relevant portion of the said judgment in Antony v. Muraleedharan 1995 (2) ILR Ker. 807 reads as follows:
In view of what has been stated above, we do not find any merit in these appeals. They are accordingly dismissed. But, that will not do justice to the petitioners in the Original Petitions, who are respondents in these appeals. They are direct recruits. Petitioner in O.P. 5238/87 entered service as a probationer with effect from 1st May, 1978, while petitioner in O.P. No. 1971/87 with effect from 1st May, 1979. Petitioner in O.P. No.l388/87, who is another direct recruit, joined the service as a probationer with effect from 1st November, 1980. With effect from those respective dates, these direct recruits must be placed against substantive vacancies in the permanent cadre. Not only that they are to be placed in substantive vacancies of permanent cadre with effect from the respective dates of entry into the service as probationer, they must also be given their confirmation and legitimate promotion to the higher cadres. A rank list must be prepared by respondents 1 to 3 of Assistant Conservators of Forests assigning these petitioners their due rank taking into consideration their entry into service as probationers, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. Respondents 1 to 3 must prepare a seniority list of Assistant Conservators or Forests as on 1st May, 1978 and then revise it yearly and in that manner bring it up-to-date. Otherwise the petitioner in O.P. No. 1971/87 and the petitioner in O.P. No. 1388/87 may not be getting their legitimate rank in the seniority list. In this regard the direction given by the learned Single Judge is confirmed. Depending on their rank in the seniority list so prepared, they must be given their legitimate promotion to the higher cadres. If their legitimate claim for inclusion in the I.F.S cadre was not considered at the relevant time their case should be considered depending on the new seniority that is directed to be assigned to them. This exercise must also be done by respondents 1 to 3 as expeditiously as possible. We also declare that the seniority lists of Assistant Conservators of Forests now made available to this Court were not prepared in accordance with the rules and that they have no legal backing. They are only to be ignored. At this juncture, we impress upon the Government to have periodical review of the cadre strength of Assistant Conservators of Forests in a realistic manner so as to obviate the difficulties that may be caused to direct recruits and those who are appointed by transfer.
(Emphasis supplied)
The said judgment was affirmed by the Apex Court, by the judgment in C.K Antony v. B. Mumkedharan .
4. Based on the above judgments, the seniority list of Assistant Conservators of Forests was revised. The Selection Committee, which met in January, 2000, reviewed the promotions to the I.F.S and prepared a select list of eligible officers, for promotion. Based on their inclusion in the select list, the 1st petitioner was appointed to I.F.S., by the Central Government, by notification dated 29.6.2000 and the 2nd petitioner, by notification dated 28.6.2000. As per those notifications, their dates of appointment to the Indian Forest Service were 26.5.1988 and 30.9.1989 respectively. The Central Government, by separate orders dated 20.12.2000, assigned 1983 and 1984 respectively, as the years of allotment for them, in accordance with Rule 3(2)(a), 3(2)(c) and 4(4) of the Indian Forest Service (Regulation of Seniority) Rules, 1968. Based on those two orders, a revised gradation list of officers in the Indian Forest Service, Kerala cadre, as on 1.7.2001 was published by the Government of Kerala, assigning appropriate rank to the petitioners.
5. Respondents 3 to 5 are direct recruits to I.F.S. The 3rd respondent was appointed to I.F.S., by direct recruitment on 2.6.1986. He was confirmed in Service with effect from 2.6.1990. He was promoted to the post of Deputy Conservator of Forests on 14.7.2000, which is a senior post in the senior time scale of pay. The 4th respondent was appointed to I.F.S., on 15.9.1991. He was confirmed in Service on 15.9.1994 and promoted to the senior post with senior time scale of pay, on 9.10.2000. The 5th respondent was recruited to the Indian Forest Service, on 1.1.1993 and he was confirmed in Service with effect from 1.1.1996. The said respondents filed O.A. No. 1037/2001 before the Central Administrative Tribunal, a copy of which, is marked as Ext. P1 in this Writ Petition, challenging the notifications issued by the Union of India dated 20.12.2000, granting years of allotment to the petitioners as 1983 and 1984 respectively and also the revised seniority list of officers of the I.F.S., Kerala cadre, as on 1.7.2001, published by the Kerala Government. Annexures A4, A5 and A7 were the said impugned orders in Ext. P1 O.A.
6. Reliefs were mainly sought in the O.A., on the following grounds: The seniority in the State cadre was not finalized and therefore, the promotions to I.F.S. were made illegally. Reckoning of the training period, prior to appointment to the State Forest Service, as qualifying service, is illegal. As per the I.F.S. (Regulation of Seniority) Rules, 1997, the year of allotment has to be determined, based on the year, in which the Selection Committee met and even if the weightage, as provided for in the said Rules, is allowed, still the party respondents in the O.A., two of whom are the petitioners herein, cannot get the present years of allotment. There were no vacancies in the quota, set apart for promoters, in the Kerala cadre of I.F.S., at the relevant time. Since the applicants’ seniority was affected, they have a right to challenge the impugned orders. By the decisions of the review D.P.C., their seniority position should not be affected. Therefore, they prayed to quash Annexures A4, A5 and A7 to Ext.P1.
7. The 2nd petitioner filed a detailed reply statement, resisting the prayers in the O.A. The said reply statement is produced as Ext. P2. The O.A. was finally heard and allowed by Ext.P3 order dated 20.8.2004. The petitioners submit, though, all the grounds taken by the applicants were rejected by the Central Administrative Tribunal, the orders assigning years of allotment to the petitioners were quashed. Ac cording to the Tribunal, the year of allotment of the promotees should be same as the year of allotment of the junior-most direct recruit, at the time of promotion. According to the petitioners, the Tribunal rendered the decision, relying on grounds not supported by any pleadings or arguments in the Original Application. The decision, according to them, was against the relevant Rules. So, they filed Review Application No. 22/2004, seeking review of the order. A true copy of the said Review Application is Ext.P4. The Original Applicants filed Ext.P6 reply statement in the Review Application. The petitioners filed Ext.P7 rejoinder. The State Government filed Ext.P8 reply statement and the Original Applicants filed Ext.P9 additional reply statement. After hearing both sides, the Review Application was dismissed by the Tribunal, by Ext.P10 order dated 14.3.2005.
8. This Writ Petition was filed, challenging Exts.P3 and P10 orders of the Tribunal. The petitioners submit, the orders of the Tribunal are contrary to the provisions of the I.F.S. (Regulation of Seniority) Rules, 1968, I.F.S.(Recruitment) Rules, 1966 and I.F.S. (Appointment by Promotion) Regulations, 1966 and also the decisions of the Apex Court. They submit, they were already working in the post with junior time scale of pay, to which direct recruits to I.F.S. were appointed. On promotion to I.F.S., they were appointed to senior posts. So, assigning seniority to the petitioners, who were appointed by promotion to the senior post below those persons holding junior time-scale post, is arbitrary and irrational. They further pointed out that the Tribunal went beyond the pleadings and arguments and allowed the O.A., on grounds different from those urged by the Original Applicants. The same mistake was repeated by the Tribunal, while disposing of the Review Application also, it is submitted. They point out that they are entitled to get seniority, immediately below the junior-most direct recruit, officiating in the senior post at the relevant time. So, they pray for quashing the impugned orders, Exts.P3 and P10.
9. A detailed counter affidavit has been filed by respondents 3, 4 and 5, resisting the prayers in the Writ Petition.
10. We heard learned senior counsel for the petitioners Mr. M.R. Rajendran Nair and also M/s. N. Nandakumara Menon, Alexander Thomas and Elvin Peter, learned counsel, who appeared for the petitioners in the connected Writ Petitions. On behalf of the party respondents, we heard learned senior counsel Mr. T.P. Kelu Nambiar and also learned Counsel Mr. P.V. Mohanan. On behalf of the Union of India, Mr. John Varghese, learned Assistant Solicitor General and on behalf of the State of Kerala, Mr. P.I. Davis, learned senior Government Pleader, addressed arguments, supporting the writ petitioners.
11. The petitioners mainly relied on the decision of the Apex Court in O.S. Singh v. Union of India . The learned Counsel for the party respondents took us through the decisions of the Apex Court in D.R. Nim v. Union of India , State of Orissa v. B.K. Mohapatra , R.P. Khanna v. S.A.F. Abbas , Anil Kumar Chowdhury v. State of Assam , Syed Khalid Rizvi v. Union of India 1993 Supp. (3) SCC 575 and Baidyanath Jena v. Union of India and in support of their contentions, heavily relied on the decisions in Rule R.S. Chouhan v. Union of India 1995 Supp. (3) SCC 109 and M. Amanullah Khan v. Government of India .
12. The service conditions of the officers belonging to All India Services, are governed by the Rules, framed by the Central Government, under Section 3 of the All India Services Act, 1951 and also by the Rules, deemed to have been framed under Section 4 thereof. The Rules, relevant in the present cases are I.F.S. (Recruitment) Rules, 1966, I.F.S. (Regulation of Seniority) Rules, 1968, I.F.S. (Appointment by Promotion) Regulations, 1966 and I.F.S. (Cadre) Rules, 1966. The fate of this case will depend upon the interpretation of the Rules, contained in the I.F.S. (Recruitment) Rules, 1966 and the I.F.S. (Regulation of Seniority) Rules, 1968.
13. It will be fruitful to refer to some of the main Rules in the I.F.S. (Recruitment) Rules. Rule 3 deals with the constitution of the Service. It says, the Service shall consist of the officers recruited to the Indian Forest Service in accordance with the Recruitment Rules. Rule 4 deals with different methods of recruitment. Sub-rule (1) thereof deals with initial recruitment to the Service by the Central Government from among the members of the State Forest Service. After the initial recruitment under Sub-rule(1), further recruitments shall be made under Sub-rule(2). The same provides three methods of recruitment: (1) By competitive examination. (2) By selection from Emergency/Short Service Commissioned Officers of the Armed Forces. (3) Promotion from substantive members of State Forest Service. Sub-rule (2) of Rule 4, being relevant for the present case, is quoted below for convenient reference:
4. Method of recruitment to the Service:–(1)….
(2) After the recruitment under Sub-rule ( 1), subsequent recruitment to the Service, shall be by the following methods, namely:
(a) by a competitive examination;
(aa) by selection of persons from amongst the Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed Forces of the Union who were commissioned after the 1st November, 1962, but before the 10th January, 1968 and who are released in the manner specified in Sub-rule (1) of Rule 7-A;
(b) by promotion of substantive members of the State Forest Service.
Rule 6 of the Recruitment Rules deals with appointment to the Service. According to that Rule, all appointments to the Service shall be made by the Central Government, after following one of the methods of recruitment provided in Rule 4. The persons recruited under Clause (a) and (aa) of Sub-rule (2) of Rule 4 shall be appointed in the junior time-scale of pay. Appointment of persons, recruited to the Service under Clause (b) of Sub-rule (2) of Rule 4 shall be in the senior time-scale of pay. Rule 6 is also quoted below for convenient reference:
6. Appointment to the Service:
(1) All appointments to the Service shall be made by the Central Government and no such appointment shall be made except after recruitment by one of the methods specified in Rule 4.
(2) The appointments of persons recruited to the service under Clauses (a) and (aa) of Sub-Rule (2) of Rule 4 shall be in the junior time-scale of pay.
(3) The appointments of persons recruited to the Service under Clause (b) of Sub-rule (2) of Rule 4 shall be in the senior time-scale of pay.
(Emphasis supplied)
The persons, directly recruited under Rule 4(2) to the Indian Forest Service and appointed by the Central Government under Rule 6(2) to posts in the junior time-scale of pay, are entitled to be appointed to senior posts carrying senior time-scale of pay, under Rule 6A. Such appointments shall be made by the State Government, subject to satisfying the conditions stipulated in that Rule. In Kerala, the junior time-scale post is Assistant Conservator of Forests or equivalent posts and the senior time-scale post is Deputy Conservator of Forests or equivalent posts. Going by the concept of “promotion post” explained by the Constitution Bench of the Apex Court in Lalit Mohan Deb v. Union of India at para. 7, page 866, as a higher post with a higher pay, the latter post is a promotion post. So, the appointment to the senior time-scale post is essentially a promotion. The directly recruited officer to be promoted must be a person, confirmed in the Service. He should pass the prescribed departmental examinations(s). He has to complete the prescribed years of service, after completion of probation. Since Rule 6A has also some relevance in this case, it is quoted below for reference:
6-A. Appointment of officers in the junior time scale of pay to posts in the senior time scale of pay:
(1) Appointments of officers recruited to the Service under Clause (a) or Clause (aa) of Sub-rule (2) of Rule 4 to posts in the senior time-scale of pay shall be made by the State Government concerned.
(2) An officer, referred to in Sub-rule (1) shall be appointed to a post in the Senior time-scale of pay if having regard to his length of service and experience, the State Government is satisfied that he is suitable for appointment to a post in the senior time-scale of pay:
Provided that, if he is under suspension or disciplinary proceedings are instituted against him, he shall not be appointed to a post in the senior time-scale of pay, until he is reinstated in the Service, or the disciplinary proceedings are concluded and final orders are passed thereon, as the case may be:
Provided further that on the conclusion of the disciplinary proceedings,
(a) if he is exonerated fully and the period of suspension, if any, is treated as duty for all purposes, he shall be appointed to the senior time-scale of pay from the date on which he would have been so appointed, had the disciplinary proceedings not been instituted against him, and paid accordingly; and
(b) if he is not exonerated fully, and if the State Government, after considering his case on merits, proposes not to appoint him to the senior time-scale of pay from the date on which he would have been so appointed had the disciplinary proceedings not been instituted against him, he shall be given an opportunity to show cause against such action.
(3) Notwithstanding anything contained in Sub-rule (2) the State Government may:
(a) withhold the appointment of an officer, referred to in Sub-rule (1) to a post in the senior time-scale of pay.-
till till he is confirmed in the Service, or
(ii) till he passes the prescribed departmental examination or examinations, and appoint to such a post an officer junior to him.
(b) appoint an officer, referred to in Sub-rule (1), at any time to a post in the senior time-scale of pay as a purely temporary or local arrangement.
(Emphasis supplied)
R.7 provides for holding of competitive examination for direct recruitment, in accordance with the Regulations framed by the Central Government. Rule 8 provides that recruitment by promotion shall be made by the Central Government, on the recommendation of the State government, in consultation with the U.P.S.C., and in accordance with the Regulations that may be framed in this behalf.
14. The next Rule, relevant, is I.F.S. (Regulation of Seniority) Rules, 1968. For the purpose of this case, we are mainly concerned with the interpretation of Rule 3. As per the said Rule, every Officer shall be assigned an year of allotment. The year of allotment of an Officer appointed by direct recruitment, based on a competitive examination, shall be the year, following the year, in which such examination was held.
The year of allotment of a promotee shall be the year of allotment of the junior-most, among the Officers directly recruited to the Service, who has officiated continuously in a senior post, from a date earlier than the date of commencement of such affiliation by the promotee. Explanation I there of provides the manner, in which the officiating service of a promotee could be reckoned. The relevant portion of Rule 3 is quoted below:
3. Assignment of year of allotment:
(1) Every officer shall be assigned a year of allotment in accordance with provisions hereinafter contained in this rule.
(2) The year of allotment of an officer appointed to the Service shall be-
(a) where an officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held;
(b) where an officer is appointed to the Service at its initial constitution in accordance with Sub-rule (1) of Rule 4 of the Recruitment Rules, such year will be determined in accordance with the following formula:
xxxxx xxxxx xxxxxx xxxxxx
(c) where an officer is appointed to the Service by promotion in accordance with Rule 8 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with Rule 7 or if no such officer is available the year of allotment of the junior-most among the officers recruited to the Service in accordance with Rule 4(T) of these Rules, who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former:
Provided that seniority of officers who are substantively holding the post of a Conservator of Forests or a higher post on the date of constitution of the Service and are not adjudged suitable by the Special Selection Board in accordance with the Indian Forest Service (Initial Recruitment) Regulations, 1966, but who may later on be appointed to the Service under Rule 8 of the Recruitment Rules shall be determined ad hoc by the Central Government in consultation with the State Government concerned and the Commission.
Explanation 1:-In respect of an officer appointed to the Service by promotion in accordance with Sub-rule (1) of Rule 8 of the Recruitment Rules, the period of his continuous officiation in a senior post shall for the purposes of determination of his seniority, count only from the date of the inclusion of his name in the Select List, or from the date of his officiating appointment to such senior post, whichever is later:
Provided that where an officer is appointed to the Service by promotion under Rule 8 of the Recruitment Rules on the basis of his name having been included in the first Select List prepared by the selection committee constituted under Regulation 3 of the Indian Forest Service (Appointment by Promotion) Regulations, 1966, the period of his continuous officiation in a senior post or post declared equivalent thereto prior to the date of the inclusion of his name in the first Select List shall also count, if such officiation is approved by the Central Government in consultation with the Commission.
The above portion of the Rule given in italics, is, mainly, relevant for the purpose of this case. In the light of the definition of “Senior Post” in Rule 2(g) of the I.F.S. (Regulation of Seniority) Rules, 1968, the senior post mentioned in the above Rule is the post included in Item 1 of the cadre of each State in the schedule to the I.F.S. (Fixation of Cadre strength) Rules, 1966. Deputy Conservator of Forests/equivalent post is the lowest post included in Item 1 of the said schedule.
15. The learned Counsel for the petitioners submitted that the petitioners ate appointed to the senior post, with senior time-scale of pay and the direct recruits are appointed to junior post in the junior time-scale of pay. In 1988 and 1989, when the petitioners were promoted, the party respondents were either working in the junior post or were not at all appointed to the Service. Therefore, there is no question of any inter se seniority between the promotees and the direct recruits, since, on promotion of the petitioners, they belonged to two different posts. The direct recruits appointed in the junior post with the junior time-scale of pay, can come to the senior post with senior time-scale of pay, only on being appointed by the State Government under Rule 6-A of the I.F.S. (Recruitment) Rules and that too, after their confirmation and also, satisfying the conditions stipulated in that Rule. Apart from that they have to complete four years’ service in the junior post, for getting promotion, it is submitted. The learned Counsel also pointed out that if any officer substantively appointed in the junior post with junior time-scale of pay, is officiating in the senior post with senior time-scale of pay, the said officiating direct recruit shall also be treated as senior to the promotee, by virtue of Clause (c) of Rule 4(2) of the Recruitment Rules. The explanation thereof enables the promotee also to count his officiating service, subject to the stipulations contained therein. The learned Counsel appearing for the respondents, on the other hand, would submit that the petitioners do not have any officiating service and therefore, they cannot get any year of allotment, earlier than their dates of regular appointment. The petitioners were regularly appointed to I.F.S., only with effect from 26.5.1988 and 30.9.1989 respectively. They cannot get an year of allotment earlier than that, it is contended.
16. Mr. P.V. Mohanan, learned Counsel appearing for the party respondents tried to canvass that the appointment of the petitioners with effect from the above said dates, itself, was illegal. The said point was not seriously canvassed, as the respondents have not challenged in the O.A., the appointment of the petitioners to I.F.S., with effect from the above said dates. The issue seriously pressed is the challenge against the year of allotment given to the petitioners. According to the leaned counsel, since the petitioners do not have any officiating service, they are not entitled to get any earlier year of allotment.
17. Going by the relevant provisions of the Rules, we feel that the contentions of respondents 3 to 5 against the seniority granted to the petitioners are not sustainable. The petitioners were appointed to the senior post with senior time-scale of pay in 1988 and 1989 respectively, under Rule 6(3) of the Recruitment Rules. Before such appointment, they were working in the post of Assistant Conservator of Forests, with the junior time-scale of pay, for more than ten years. At the time the petitioners were promoted, the 3rd respondent was in the junior time-scale of pay with about 2 or 3 years of service. Respondents 4 and 5 were not in the service at all. The 3rd respondent was confirmed in service only on 2.6.1990. He could have been promoted to the senior post, carrying senior time-scale of pay, only after completing the prescribed four years of service and also, satisfying other conditions stipulated in Rule 6-A of the I.F.S. (Recruitment) Rules, 1966. He was actually promoted to the senior post, only on 14.7.2000. So, going by the fundamental principles of service jurisprudence, the claim of respondents 3 to 5 for seniority in the I.F.S. Cadre, over the petitioners, is, ex facie unsustainable. Then, the point to be considered is, whether the provisions of Rule 4(2)(c) and Explanation 1 of the I.F.S. (Regulation of Seniority) Rules, 1968 will, in anyway, modify the said legal position. A close scrutiny of Rule 4(2)(c) and Explanation 1 thereof, would show that those provisions allow the promotees to count their officiating service, subject to the trammels contained in the latter part of the said Rule, for the purpose of seniority in the senior scale post. As per the main part of Clause (c) of Rule 4(2) of the Seniority Rules, a direct recruit, officiating in a senior post, shall be senior to a promotee, appointed to the senior post, subsequent to the date of officiation of the direct recruit. That means, the Rule safeguards the seniority of even those direct recruits who are only officiating in the senior post, though the promotees are regularly appointed. Explanation I helps the promotees also, to count their officiating service in a limited mariner. The said explanation can be best explained by the following example: Suppose A is a promotee I.F.S. Officer, who was officiating in a senior post, with effect from 1.1.2006. He was included in the select list for appointment to the I.F.S on 1.2.2006. He was actually appointed sub stativity to the I.F.S., in the senior post, on 1.3.2006. In that case, his date of inclusion in the list, being later than the date of off incitation, he can count his seniority with effect from 1.2.2006 and claim corresponding year of allotment. Suppose B, who is a promotee, is included in the select list published on 1.2.2006. He started officiating in the senior post with effect from 1.3.2006 and he was substantively appointed to that post, with effect from 1.4.2006. In that case, B can claim seniority with effect from 1.3.2006, as the date of officiation is later than the date of inclusion in the list and he can claim corresponding year of allotment. But, the explanation is subject to the main part of Clause (c). The contusion regarding the interpretation of Clause (c) is created by the words “or if no such officer is available the year of allotment of the junior-most among the officers recruited to the Service in accordance with Rule 4(1) of these Rules”. Rule 4(1) of the Recruitment Rules is concerned with the initial one time recruitment to the Service, on commencement of the I.F.S. (Recruitment) Rules, 1966, on 1.9.1966. Rule 4(1) of the Recruitment Rules reads as follows:
4. Method of recruitment to the Service.
(1) As soon as may be after the commencement of these rules, the Central Government may recruit to the Service any person from amongst the members of the State Forest Service adjudged suitable in accordance with such regulations as the Central Government may make in consultation with the State Government and the Commission:
Provided that no member holding a post referred to in Sub-clause (ii) of Clause (g) of Rule 2 and so recruited shall at the time of recruitment, be allocated to any State cadre other than the cadre of a Union Territory.
The members of the Service, who were recruited by the Central Government from the State Forest Service under the above quoted Rule, are no longer in service. They vanished from the scene as they reached the age of superannuation long ago. Further, the above quoted words were added only to fix the seniority of promotees, who happened to be promoted before the first batch of direct recruits under Rule 4(2)(a) read with Rule 7 of the Recruitment Rules, joined service. That means, the said clause had application only for a short period, on the commencement of the Recruitment Rules, 1966. So, the above quoted words contained in the middle of Rule 3(2)(c) of the I.F.S. (Regulation of Seniority) Rules, 1968 can be ignored. The adjectival clause in Rule 3(2)(c), which reads as “who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former”, is meant to qualify the Officer mentioned in the first part of the clause also, who is junior-most among the Officers recruited under Rule 7 of the Recruitment Rules and officiating continuously in a senior post. The contention of the party respondents that since the petitioners do not have any officiating service, they cannot get any year of allotment under Rule 3(2) of the Seniority Rules, 1968, is plainly untenable. In many cases, it can happen that persons without any officiating service may be promoted. Such persons, obviously, will not get the added advantage of counting their officiating service, in the light of the stipulations contained in Explanation I to Rule 3(2)(c). But, they can get and they have to get an year of allotment with reference to their dates of regular/substantive appointment. Otherwise, the word ‘every’ in Rule 3(1) of the I.F.S. (Regulation of Seniority) Rules, 1968 will become meaningless. The said sub-rule reads as follows:
3. Assignment of year of allotment:- (1) Every officer shall be assigned a year of allotment in accordance with provisions hereinafter contained in this rule.
If the contention of the party respondents is accepted, the above provision, as far as promotees are concerned, will apply only to those persons, who, owing to fortuitous circumstances, have officiating service before their regular promotion. Such an interpretation will be manifestly wrong, unjust and unwarranted.
18. There is no decision of the Apex Court directly applicable to the facts of the case, concerning Indian Forest Service. But, we feel that the decision in O.S. Singh v. Union of India , though, under the IPS (Regulation of Seniority) Rules, 1954, will apply to the facts of this case. The relevant Rule interpreted in that case is Rule 3(3) of the IPS (Regulation of Seniority) Rules, 1954, which is identical to Rule 3(2)(c) of the I.F.S. (Regulation of Seniority) Rules, 1968. The only difference in the Seniority Rules of I.F.S., is the portion, mentioning about the persons recruited initially under Section 4(1) of the Recruitment Rules, which, as mentioned earlier, has become redundant, as, when the petitioners were appointed, several officers directly recruited under Rule 7 were available. The relevant portion of Rule 3(3) of the IPS (Regulation of Seniority) Rules, 1954 reads as follows:
3. Assignment of Year of Allotment:
(1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule.
(2)….
(3) The year of allotment of an officer appointed to the Service after the commencement of these rules shall be-
(a) where the officer is appointed to the Service on the results of a competitive examination the year following the year in which such examination was held;
(b) where the officer is appointed to the Service by promotion in accordance, with Rule 9 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with Rule 7 of these Rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former;
Provided that the year of allotment of an officer appointed to the Service in accordance with Rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a cadre earlier than the date on which any of the officers recruited to me Service, in accordance with Rule 7 of those rules, so started officiating shall be determined ad hoc by the Central Government in consultation with the State Governments concerned.
Explanation. 1- In respect of an officer appointed to the Service by promotion in accordance with Sub-rule (1) of Rule 9 of the Recruitment Rules, the period of his continuous officiation in a senior post shall, for the purposes of determination of his seniority; count only from the date of the inclusion of his name in the Select List, or from the date of his officiating appointment to such senior post whichever is later.
A comparison of the above Rule with the relevant portions of Rule 3 of the I.F.S. (Regulation of Seniority) Rules, 1968 would show that there is, practically, no difference between them. Rule 9 and 7 of the Recruitment Rules mentioned in the above quoted Rule are Rule 9 and 7 of the IPS (Recruitment) Rules, 1954. Rule 7 provides for recruitment through competitive examination, which is similar to Rule 7 of the IFS (Recruitment) Rules, 1966. Rule 9 mentioned above is similar to Rule 8 of the IFS (Recruitment) Rules, providing for appointment by promotion. Rule 6 in the Recruitment Rules of both the Services is identical. Rule 6 of the I.P.S. (Recruitment) Rules, 1954, also, provides that appointment by direct recruitment shall be in the junior time-scale of pay and appointment by promotion shall be in the senior time-scale of pay. The said Rule reads as follows:
6. Appointment to the Service.-
(1) All appointments to the Service after the commencement of these rules shall be made by the Central Government and no such appointment shall be made except after recruitment by one of the methods specified in Rule 4.
(2) The initial appointments of persons recruited to the Service under Clause (a) of Sub-rule (1) of Rule 4 shall be in the junior time-scale of pay.
(3) The initial appointments of persons recruited to the Service under Clauses (b) and (c) of Sub-rule (1) of Rule 4 shall be in the senior scale of pay.
(Emphasis supplied
19. The relevant portion of the judgment in O.S. Singh’s case, reads as follows:
5. In view of the rival submissions at the Bar the question that arises for consideration is whether the year of allotment of an officer of the State Police Service has to be determined in accordance with Rule 3(3)(b) of the Seniority Rules notwithstanding the fact that his case had been ignored from consideration erroneously and later on the mistake was rectified and he was appointed to the Indian Police Service with effect from an. anterior date on which date he would have otherwise been entitled to be appointed. To appreciate this point at the cost of repetition it would be appropriate to notice the admitted facts. Shri. O.S. Singh who was a Deputy Superintendent of Police in the State Police Service on substantive basis and had completed more than 8 years of service by the year 1974 and could have been replaced in the Select List but for the adverse entries in his CR. The adverse entries having been expunged he had approached the High Court of Himachal Pradesh for a direction to the appropriate authorities for reconsideration of his case. The High Court by an interim order had called upon the State Government to reconsider his case. The State Government on reconsideration recommended for his appointment to the Indian Police Service from an anterior date. Finally, the Government of India in consultation with the Union Public Service Commission appointed said Shri Singh to the Indian Police Service with effect from 31.3.1976. It is under these admitted facts, the correctness of the decision of the Tribunal has to be decided upon. It is no doubt, true that in Rizvi case this Court has observed that the year of allotment of an officer who was appointed to the service by promotion shall be determined in accordance with Rule 3(3)(b) of the Seniority Rules. But the Court was not faced with a situation as in the case in hand, where the case of the promotee had been ignored from consideration, and on reconsideration the promotee has been appointed retrospectively with effect from 31.3.1976. In our considered opinion the Tribunal committed gross error in deciding the year of allotment of Shri. Singh only by taking into consideration his date of continuous officiation in the senior post with effect from 30.3.1978 and ignoring the order of the Central Government on reconsideration appointing said Shri Singh to the Indian Police Service with effect from 31.3.1976. As has been noticed earlier, under Sub-rule (3) of Rule 6 of the Recruitment Rules, the initial appointment of a promotee to the Indian Police Service is in the senior time scale of pay. When Shri Singh was appointed to the Indian Police Service with effect from 31.3.1976 in the eye of law it must be held that he has been continuing in the senior post with effect from that date and, therefore, his seniority vis-a-vis the direct recruits like Respondent 4 cannot be determined by determining his factual officiation in a senior post with effect from 30.3.1978. The benefit conferred upon him on reconsideration and appointing him to (he Indian Police Service retrospectively with effect from 31.3.1976 cannot be taken away for the purpose of determining his year of allotment and seniority in the cadre. The Central Administrative Tribunal, in our considered opinion, committed error in totally ignoring the effect of retrospective appointment of Shri Singh to the Indian Police Service with effect from 31.3.1978. Taking this in to consideration the Central Government rightly determined the year of allotment of Shri Singh as well as inter se seniority vis-a-vis Respondent 4 Shri Ashvini Kumar in its letter dated 23.7.1985. In fact in A.K. Choudhary case, in somewhat similar circumstances, this Court had directed for reconsideration of the case of the promotee and observed that on reconsideration if the employee is selected from any anterior date then he shall be entitled to the seniority and other consequential benefits flowing therefrom.
xxxxx xxxxxx xxxxxx
7. This provision envisages assignment of the year of allotment to a promotee officer with reference to the year of allotment assigned to the juniormost among the officers recruited to the Service by direct recruitment who had officiated continuously in a senior post from adateearlier than the date of commencement of the officiation on a senior post in the Service by the promotee officer. In other words, for the purpose of seniority, a promotee officer is treated on a par with a directly recruited officer who had been officiating in a senior post. This appears to be so for the reason that under Rule 6 of the Recruitment Rules the initial appointment of a person appointed by way of direct recruitment is in the junior time scale while the initial appointment of a person appointed to the Service by way of promotion from the Slate Police Service is in the senior time scale. The governing factor for assignment of year of allotment under Rule 3(3)(b) is, therefore, the continuous officiation in a senior post by a directly recruited officer as well as the promotee officer.
xxxxx xxxxxx xxxxxx
12. If Rule 3(3)(b) is spread as to effectuate the intention of the rule-making authority, then the considerations referred to therein which apply in the matter of assignment of year of allotment in cases where an officer has officiated prior to the date of his substantive appointment must necessarily apply for the purpose of assigning the year of allotment of an officer who has been substantively appointed without being required to officiate. In such a case his year of allotment will have to be determined with reference to the year of allotment of juniormost among the officers directly recruited to the Service who officiated continuously in a senior post from a date earlier than the date of substantive appointment of the promotee officer. For that purpose the expression ‘such officiation’ in the context of the promotee officer in Rule 3(3)(b) will have to be construed as meaning ‘substantive appointment’ in cases where the promotee did not officiate in a senior post before his substantive appointment to the Service. The said construction would also govern a case, like the present one, where an officer has been wrongly denied promotion to the Service and the said wrong is rectified later by the competent authority by appointing the officer who was denied promotion with effect from the date on which he should have been so appointed by way of promotion. Such an officer may have officiated in a senior post prior to the passing of the order of substantive appointment but he may not have officiated in a senior post prior to the date from which he has been substantively appointed. Once the error in the matter of his promotion is rectified and he has been given substantive appointment from an anterior date on which he should have been promoted the year of allotment has to be assigned to him having regard to the date from which his substantive appointment becomes operative even though he did not officiate in a senior post prior to the said date of substantive appointment. His year of allotment cannot be depressed on the basis that he had started officiating on a senior post from a date later than the date with effect from which he has been substantively appointed to the Service.
(Emphasis supplied)
So, the above decision of the Apex Court, though, under the IPS (Regulation of Seniority) Rules, 1954, squarely covers the present case also. The decisions relied on by the learned Counsel for the party respondents are all, mainly concerned with the claims of promotees to I.A.S., I.P.S and I.F.S., for reckoning their officiating service in the senior scale, for the purpose of grant of seniority. The decisions, R.R.S. Chouhan v. Union India 1995 Supp (3) SCC 109 and M. Amanullah Khan v. Government India are under I.F.S (Regulation of Seniority) Rule, 1968. Those decisions have no application to the facts of this case, as the petitioners do not claim seniority based on any officiation in the senior post prior to their regular appointment. The contention of the learned Counsel for the party respondents that only if there is officiating service, there could be grant of year of allotment on induction to senior post/senior scale, which year may be one prior to such induction, is plainly baseless. Counting of officiating service is a further concession over and above the normal situation of counting service from the date of appointment/induction.
20. While referring the main question concerning the year of allotment for the decision of the Full Bench, the Division Bench has also observed that the effect of Explanation I to Rule 3(2)(c) of the I.F.S. (Regulation of Seniority) Rules, 1968 requires consideration by the Full Bench, as a provision similar to Explanation I is not seen considered in O.S. Singh’s case. Explanation I to Rule 3(2)(c) of the IPS (Regulation of Seniority) Rules 1968 and Explanation I to Rule 3(3) of the IPS (Regulation of Seniority) Rules, 1954 are identical, regarding counting of officiating service. The effect of that explanation has been considered by the Apex Court in O.S. Singh’s case, in para 8 of the judgment. The said para reads as follows:
In service jurisprudence a distinction is made between a ‘substantive appointment’ and an ‘officiating appointment’. While substantive appointment confers on the person so appointed a substantive right to the post, an officiating appointment does not confer any such substantive right. The appointment on officiating basis is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post. Such an officiating appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or a substantive appointment being made to that permanent post in the latter case. An appointment on officiating basis, is, from the very nature of such employment, itself of a transitory character and, under the ordinary law of master and servant, is terminable at any time. (See: Parshotam Lal Dhingra v. Union of India 1958 SCR 828 at pp. 841-842. The expression ‘officiated continuously in a senior post’ in Rule 3(3)(b) of the Seniority Rules must, therefore, be construed to mean holding a senior post on officiating basis prior to substantive appointment on such senior post. Since a person cannot be treated as officiating on a post after he has been substantively appointed on that post, the said expression cannot be construed as referring to the period of officiation subsequent to the date of substantive appointment. For ascertaining the period of continuous officiation on a senior post, which is required to be taken into consideration for the purpose of assigning the year of allotment to a promotee officer, Rule 3(3)(b) has to be read with Explanation I wherein it has been prescribed that in respect of an officer appointed to the Service by promotion for the purpose of determination of his seniority the period of his continuous officiation in a senior post shall count only from the date of the inclusion of his name in the Select List, or from the date of his officiating appointment to such senior post, whichever is later. Thus two conditions are required to be fulfilled: (i) inclusion of the name in the Select List prepared for the purpose of promotion under the Recruitment Rules and Promotion Regulations; and (ii) continuous officiation on a senior post. Explanation I postulates that both these conditions must co-exist for a promotee officer to take the benefit of continuous officiation in a senior post from the date prior to the date of his substantive appointment.
So, the mention in the reference order of the Division Bench that there is no consideration of a provision similar to Explanation I in O.S. Singh’s case, is not correct.
21. Further, in this case, the State Government as well as the Central Government support the writ petitioners. Rule 3(2)(c) of the Seniority Rules was understood and applied by the Central Government, in the manner it was done in this case, all along. So, even assuming there is some vagueness in the Seniority Rules, when they are understood and applied by the competent authority in a particular manner, for years together, it will not, normally, be proper to interfere with the said interpretation. This is one of the well accepted principles of interpretation of Statutes. See the Full Bench decision of this Court in Pulomaja Devi v. Gopinathan Nair 1975 KLT 111(FB).
22. The point referred by the Division Bench, which is to be answered is whether an year of allotment could be given to an incumbent before he became qualified to be inducted to Indian Forest Service. The year of allotment created by a statutory fiction under Rule 3 is only for the purpose of assigning rank to a person in the seniority list of the officers of the Service. The petitioners get other service benefits only with effect from their respective dates of appointment in 1988 and 1989. When they are arranged in the seniority list, the concept of year of allotment protects the direct recruits to I.F.S., who are officiating in the senior post. Normally, an Officer, officiating in a higher post will not get seniority from the date of officiation. He can claim seniority only with reference to the date of his substantive appointment. But, the direct recruit is given a special protection, by providing that a promotee will only take position behind him, even if he is only officiating in the senior scale post. So, to put the promotee behind him, a special provision in the Rule concerning grant of year of allotment is made. The concern, which reflects in the above point referred by the Division Bench, usually, emanates when a junior steals a march over his seniors relying on technical rules. There is no such injustice caused in this case. All direct recruits, who have reached the senior scale post, are well insulated. The respondents 3 and 4 were appointed to the senior time-scale post of Deputy Conservator of Forests, in 2000, long after the appointment of the petitioners to that post in 1988 and 1989. Thus, respondents 3 to 5 are in no way prejudiced by the year of allotment granted to the petitioners. The year of allotment has no special significance or does not provide any undue advantage, as far as a promotee IPS Officer is concerned. So, even if that year is earlier to the date of acquisition of eligibility for promotion by the promotee, the same will not run counter to any principles of service jurisprudence. The reference made by the Division Bench is answered accordingly.
23. It may also be noticed that respondents 3 to 5 have not challenged any of the provisions of the I.F.S. (Regulation of Seniority) Rules, 1968. So, when the said Rules are implemented, they cannot resist it, saying that the same runs counter to some principles of service jurisprudence.
24. In the result, the Writ Petition is allowed. Exts.P3 and P10 are quashed. Ext. P1 O.A. filed by respondents 3 to 5 is dismissed. In the circumstances of the case, the parties will bear their respective costs.
W.P.(C) No. 11256, 144785 & 14745 & 17760/20
25. The point raised for decision in these cases, is the same raised in W.P.(C) No. 11158/2005. Therefore, it is ordered that the judgment in that case will govern these cases also.