JUDGMENT
Jawahar Lal Gupta, C.J.
1. Is the Forest Ranger who has passed the ‘Account Test (Lower)’ not eligible for promotion to the post of Assistant Conservator of Forests? This is the short question that arises for consideration in this case. The petitioner, who is working as Assistant Conservator of Forests, had approached this Court for a declaration that “the prescribed test qualification for the post of Assistant Conservator in the Kerala Forest Service is the Account Test for Executive Officers for the Kerala State alone as per the Special Rules for the Kerala Forest Service.” The prayer having been declined, he has filed the present appeal. The relevant facts may be briefly noticed.
2. The appellant was recruited as a Forest Ranger in the year 1976. He completed the training in the year 1978-79. He was promoted as Assistant Conservator of Forests with effect from April 1, 1996. The appellant states that this promotion was provisional.
3. There are a number of respondents. It is not necessary to notice the facts regarding all of them. By way of illustration, the factual position in respect of respondent No. 3 alone may be briefly noticed. This would be illustrative of the factual position.
4. The 3rd respondent was recruited as Ranger in the year 1968. On November 5, 1984, his name was approved for promotion to the post of Assistant Conservator of Forests. On November 23, 1990, he was promoted with effect from November 17, 1984. He had passed the Account Test (Lower) before the preparation of the select list by the Departmental Promotion Committee. The name of the third respondent was included in the final seniority list of Assistant Conservators of Forests as on December 31, 1985. He was placed at Sl. No. 63. Vide order dated April 8, 1994, he was confirmed as Assistant Conservator with effect from September 1, 1989. In February 2003, a proposal for his appointment to the Indian Forest Service was made. The matter is still pending. He has already retired from service.
5. The appellant asserts that the provisions of the Kerala Forest Service Rules as issued on November 22, 1966 govern the recruitment to the post of Assistant Conservator of Forests. Rule 4 prescribes the qualifications for direct recruitment as well as for appointment by transfer. The Government can make an appointment by transfer of a Forest Ranger only if he has “passed the Account Test for the Executive Officers of Kerala”. Since the Statutory Rule prescribes passing of the test as a condition precedent, no Forest Ranger can be legally promoted or transferred as Assistant Conservator till he passes the test. On this basis, the appellant claims that he was entitled to the declaration as prayed for by him.
6. The respondents contest the claim. It has been pointed out that the test was introduced by an executive order dated January 13, 1961. The Government had ordered that the Commission will hold an Account Test for Executive Officers in the State. On April 3, 1962, it was provided that Officers who have passed the Account Test (Lower) “will be deemed to have passed” the Account Test for the Executive Officers. The position was further clarified vide Government Order dated October 23, 1963. Copies of these three orders are Exts.Pl to P3 on record.
7. On January 1, 1963, the Government had promulgated the Kerala Forest Subordinate Service Rules. The Forest Rangers were the highest category of posts in the Subordinate Service. In these Rules, it was inter alia provided that every person shall “within the prescribed period of probation pass the test specified in the corresponding entry…..” So far as Rangers are concerned, they were required to pass
“Account Test (Lower).” The provision regarding the test was made in Rule 7. Rule 8 provided for probation.
8. On November 22, 1966, the Government had promulgated the Kerala Forest Service Rules, which included the posts of Chief Conservator, Conservators, Deputy Conservators and Assistant Conservators. Appointment to the lowest category viz. the Assistant Conservators could be made by direct recruitment or by transfer from among the Rangers in the Kerala Forest Subordinate Service. As already noticed, Rule 4 prescribed the qualifications for direct recruitment as well as by transfer. Appointment by Transfer is actually another name for promotion from the Subordinate to the State Service. The entry with regard to qualifications for transfer deserves to be noticed. It was provided as under :-
“4. Qualifications.- No persons shall be eligible for appointment as Assistant Conservator by the method specified under column (1) of the table below unless he possesses the qualifications mentioned in the corresponding entry under column (2) thereof.
Manner of appointment
Qualifications
(1)
(2)
Direct recruitment
(i)
Must possess the qualifications prescribed by the
Government of India …
(ii)
Should be not less than 19 years or more than 30
years of age on the 1st day of January …. Provided that the upper-age limit
shall be relaxed in the case of Departmental candidates …. Provided further
that the upper-age limit shall be relaxed by 5 years in the case of Schedule
Castes/Scheduled Tribes
Transfer
(i)
Must have passed the Account Test for the
Executive Officers of Kerala.
(ii)
Successful competition of Training in Forestry
from a recognised institution.”
Rule 7 provided for the test, which the direct recruit, has to pass.
9. It is on the basis of the provisions contained in the Rule that the entire controversy with regard to the validity of the transfer/promotion to the post of Assistant Conservators of Forests has been raised. On behalf of the appellant, Mr. V.Giri has contended that passing the test for Executive Officers is a condition precedent for promotion to the post of Assistant Conservator. Till a person has qualified the test, he is not eligible for appointment as Assistant Conservator by transfer as contemplated under Rule 4. Resultantly, it is contended that the declaration as sought for by the appellant should have been issued by the learned Single Judge.
10. The appellant’s claim has been controverted by the learned counsel for the respondents, Mr. O.V. Radhakrishnan, appearing for respondent Nos. 3 and 4, has vehemently contended that the appellant himself was promoted as an Assistant Conservator when he had not qualified the Account Test for Executive Officers. Still further, it has also been pointed out that the promotions have been made since the constitution of the Service without insisting upon the Forest Rangers qualifying the Account Test for Executive Officers. These had never been challenged. The claim as made by the appellant in the year 2003 is highly belated.
11. In view of the contentions as raised by the learned counsel for the parties, the two questions that arise for consideration are:-
(1) Is there a long and unexplained delay?
(2) Is there a truly meaningful difference between Account Test (Lower) and Account Test for Executive Officers so as to invalidate the promotion of persons who has passed the Account Test (Lower)?
Regarding (1) :
12. Apparently, the third respondent was promoted as Assistant Conservator on November 17, 1984. His name was included in the final seniority list of Assistant Conservators as on December 31, 1985. He was placed at Sl. No. 63. Still further, he has also been confirmed with effect from December 31, 1995. In fact, the respondents were actually promoted in the year 1984 or thereafter. They were even confirmed in the service. They have been granted seniority in the cadre of Assistant Conservator on that basis. The last promotion was made in the year 1998. Despite that, the appellant had not raised his little finger. It was for the first time in February 2003, that he had approached this Court through the petition under Article 226 of the Constitution. Factually, there was a long and inordinate delay. No explanation for such a long delay has been given. If a suit challenging the promotion of the respondents as Assistant Conservators of Forests were to be filed on February 13, 2003, they would be legitimately entitled to contend that it is barred by limitation. In such a case, following the law as laid down by their Lordships of the Supreme Court in State of Madhya Pradesh v. Bhailal Bhai (AIR 1964 SC 1006) the claim is liable to be declined on the ground of delay alone.
13. Irrespective of the delay, we have heard learned Counsel for the parties and considered the matter on merits. Thus, we examine the second issue.
Regarding (2) :
14. Mr. Giri contends that Rule 4 makes it mandatory for a person to qualify the Account Test for Executive Officers before becoming eligible for appointment as Assistant Conservator.
15. At the first blush, the contention appears to be attractive. However, a slightly deeper examination exposes the factual position. From the documents placed on the record it appears that the tests had been prescribed even before the promulgation of the Rules. Vide its letter dated March 29, 1962, which was published in the Official Gazette on April 3, 1962, the Government had ordered that Account Test (Lower) was considered as sufficient or equivalent to the Test for Executive Officers. It was specifically provided that those who qualify the Account Test (Lower) shall be deemed to have passed the Test for Executive Officers. Since then, the promotions have been continuously made on the hypothesis that everyone who had passed the Account Test (Lower) was eligible. It also appears that detailed provisions with regard to the Account Tests were notified by Government Order dated October 23, 1963. A copy of the Order is at Ext.P3. The relevant portion is extracted below:-
“2. The following common Account Tests will be conducted by the Public Service Commission in future in the place of the Tests abolished above, for the benefit of both the T.C. personnel and officers allotted from Madras and also for officers who were recruited to Public Services after the formation of Kerala State:-
I. Account Test (Lower).
II. Account Test for Executive Officers.
III. Account Test (Higher).
3. The syllabus for the new Account Tests will be as follows:-
I. Account Test (Lower)
(1) Kerala Service Rules (with books) -I Paper.
(2) Kerala Financial Code Volumes I and II and Travancore-Cochin Budget Manual (with books) – II Paper.
(3) Introduction to Indian Audit and Accounts (Parts I and III).
(Without books) and the Kerala Account Code Volume I (with books) – III Paper.
(4) The Kerala Treasury Code Volumes I and II and the Kerala Account Code Volume II (with books) – IV Paper.
II. Account Test for Executive Officers.
(1) Kerala Financial Code Volumes I and II and Kerala Account Code Volume I and Travancore-Cochin Budget Manual (Chaps. I to IV, VI and VII) (with books) – I Paper.
(2) Kerala Service Rules (with books) – II Paper.”
A perusal of the above shows that for the Account Test (Lower), the candidate has to appear in four Papers. So far as Paper 1 of the Account Test (Lower) and Paper II of the Test for Executive Officers are concerned, there is a complete identity. Paper I for the Executive Officers deals with Financial Code Volumes I and II, Account Code Volume I and only 4 Chapters of the Budget Manual. As against this, for the Account Test (Lower), the Kerala Financial Code Volumes I and II as well as the Budget Manual are a part of the II Paper. In addition, Indian Audit and Accounts (Parts I and III) as well as the Kerala Account Code Volume I are also included. Still further, the Kerala Treasury Code Volumes I and II is also part of the syllabi. Thus, it is clear that the candidate who appears for the Account Test (Lower) has to study much more and be well versed in various matters relating to Accounts than a person appearing in the Test for the Executive Officers.
16. When the provision of Rule 4 is examined in the context of this factual position, it appears that a Ranger should be required to qualify the Account Test for Executive Officers only if he has not already passed the Account Test (Lower). In case he has passed the said Test, the second test, which is merely a simplified version of the ‘Lower’ Test, would be a mere surplusage. He should be eligible for promotion to the post of Assistant Conservator. In fact, it has not been disputed before us that the Department has consistently construed the Rule in this manner since its inception. It is only on account of this reason that all those Rangers who had passed the Account Test (Lower) were actually considered and promoted as Assistant Conservators on the basis of their having passed the Account Test (Lower). Factually, the appellant himself was also promoted on that basis.
17. The view as taken by the Department may not meet the literal construction of the provision. However, keeping in view the factual position as noticed above, it is clear that in substance the Account Test (Lower) is far more difficult than the Account Test for Executive Officers. Thus, the Department cannot be blamed for having taken a pragmatic view.
18. Learned counsel for the appellant has contended that persons who are directly recruited, as Assistant Conservators are still required to pass the test prescribed for Executive Officers. There is no basis for treating the promotees or transferees differently.
19. The contention cannot be accepted. The persons who compete for direct recruitment are normally those who are not serving in the Department. They have not qualified the Account Test (Lower). They may not have even a nodding familiarity with the procedures of accounts etc. being followed in the State. Thus, under Rule 7, they are given an opportunity to qualify the test during the period of their probation. As against this, person who are appointed by transfer are those who have worked in the lower posts and are expected to have passed the Account Test (Lower). They are fully acquainted with various Codes and Manuals. Thus, in their case, the Department could have legitimately taken the view that requiring them to qualify a “simplified” Test prescribed for Executive Officers would be an exercise in futility.
21. Mr. Giri submits that even though the Account Test for Executive Officers does not take too many Codes and Manuals within its fold yet it has a qualitative difference. Those appointed to higher posts are expected to meet the higher standards. Thus, the rule making authority had insisted upon even a promotee to qualify the Account Test for Executive Officers.
22. There is not an iota of evidence on the file, which may even remotely suggest that the Account Test prescribed for Executive Officers is either qualitatively or otherwise at a higher pedestal than the Account Test (Lower). If the simple labels are put apart and the actual content is examined the contention as raised on behalf of the appellant would not be tenable.
23. It is in view of this position that the Government had consistently taken the view that the persons like the respondents were eligible. In fact, even as late as in 2002 and 2003 ihe department had informed the Members of the Association of which the appellant was the President that those who have passed Account Test (Lower) need not appear or pass the Account Test for Executive Officers. The communication sent to the General Secretary of the Association of the Gazetted Forest Officers, Kerala on February 1, 2003, deserves specific notice. In this letter it was observed as under:-
” I am to invite your attention to the reference cited and to inform you that as per order issued in G.O. (MS) 199) PD dated, 29.3.1952 Government have ordered that a person for whom Account Test for Executive Officer has been or may be prescribed will be deemed to have passed the test if he has passed to the Account Test (L). Hence though the Special Rules for the Kerala Forest Service prescribe “Account Test for Executive Officers Kerala as qualification for appointment by transfer to the post of Assistant Conservator of Forest, the person who have passed Account Test (Lower) can also be deemed to have passed “Account Test for Executive Officers; for the above purpose.”
24. From the above, it is clear that from 1962 to 2003 the Government has held the view that those who have passed the Account Test (Lower) shall be deemed to have qualified the Account Test for Executive Officers. This was a plausible view. The respondents cannot be said to have acted illegally. In fact, it deserves mention that while construing a provision regarding the qualifications for a post, the court cannot always take a hypertechnical and literal view. There is often a need to see the test of a Rule in the light of the real content and context. The label may not be conclusive. The matter is more of substance than mere form. Thus, the learned Single Judge had not committed any error in rejecting the prayer for a declaration.
25. No other point has been raised.
26. In view of the above, we find no merit in this appeal. It is consequently dismissed. In the circumstances, there will be no order as to costs.