Government resolutions

Supreme Court: In a Civil Appeal challenging Bombay High Court’s judgment upholding the order passed by the Maharashtra Administrative Tribunal (‘MAT’) regarding appointment to the post of Assistant Conservator of Forest (‘ACF’), the Division Bench of Sanjay Kishan Kaul* and Abhay S. Oka, JJ. dismissed the same holding that Government resolutions cannot override statutory rules and that rules for recruitment to Maharashtra Forest Service would operate in full force.

The present dispute arose between direct recruits and promotees for inter-se seniority for the post of ACF, whose recruitment was twofold, i.e., through nomination (direct appointment) and promotion. As per the process, persons appointed by nomination must compulsorily undergo two years of ACF training, while there is no such rule for recruits by promotion, who assume charge from the day of being promoted. The ACF post is feeder cadre to the post of Divisional Forest Officer (‘DFO’).

Rule 5 of Assistant Conservator of Forests in the Maharashtra Forest Service, Group A (Junior Scale) (Recruitment) Rules, 1998 provides for appointment as ACF from the above two modes in a 50:50 ratio.

The appellants were appointed as ACF through nomination in 2016, being recruited in 2014 and underwent training, while two of the respondents were directly promoted as ACF in 2014. Since representation on the claims did not bring any difference, an application was filed before the Maharashtra Administrative Tribunal seeking declaration of appellants’ appointment as ACF to be considered from the date of start of training, the two years of training to be considered as period of service. The applicants also sought directions regarding payment of salary as per the pay scale prescribed by considering the period of training as on probation/ duty.

MAT partly allowed the application through order dated 3-2-2016. MAT rejected the plea that candidate would be eligible for regular pay scale after successful completion of probation of 3 years and opined that rule 10 of Maharashtra Civil Services (General Conditions of Services) Rules, 1981 was attracted for a person to draw minimum time scale attached to the post to which he is appointed. MAT held appellants entitled to appointment as ACF from commencement of training, regular pay after successful completion of probation retrospectively from the date of appointment and after deducting the amounts of ‘stipend’ already paid. MAT dismissed the review petition filed by the respondent.

The Government passed a resolution on 14-8-2018 for completion of training period to be considered as regular service from the date of inception of training. It also provided for ACF appointed by nomination to be considered from the initial date of training and seniority to be considered accordingly. The respondents who were not party before MAT filed a Writ Petition before the High Court through 1988 Rules with the grievance that they were promoted to ACF post in 2014-15, i.e., before the appellants, but shown junior to both the appellants in the seniority list of ACF.

The High Court, through judgment dated 23-4-2021 decided that the respondents would not be affected by the MAT’s order as far as payment of salary and the pay scale to the appellants from beginning of training period is concerned. The High Court found the MAT’s direction to pay salary as per the pay scale since Rule 3(b) read with Rule 6 of the 1998 Rules reflecting for period of training to be considered as probation.

The Court in the present matter proposed that service rules are liable to prevail, and that there can be Government resolutions in consonance and not in conflict with those rules.

The Court observed that Rule 2 of 1984 Rules refers to appointment of DFO and the same to be made by promotion from amongst the Maharashtra Forest Service Officers as well as by direct appointment. It was further pointed out that the appointment is different from the recruitment process which commences with the training. The Court clarified that even if the Government Resolution upgraded the post of ACF from Class 2 to Class 1, the proviso to Rule 2 of 1984 Rules still applies in determining the service period.

The Court further observed that the Rule 3(b) of 1988 Rules stipulate that nomination is based on the result of competitive examination and the candidate should have successfully completed the training course. Further, Rule 6 provides for a probation of 3 years which includes 2 years of ACF training and 1 year field training. The Court held that resolutions issued by the Administrative Department of the Government cannot have the status of a statutory rule, although they may have their own effect.

The Court upheld the High Court’s view of resolutions having been passed in context that the person who successfully completes the training effectively gets monetary compensation for training period, which cannot amount to giving seniority from initial recruitment as per Rule 2 of 1984 Rules.

The Court held that “It is not necessary to refer to factual scenarios of different judgments and different rules or general definition of what would amount to be on “duty”, when the rule in question is quite clear.” The Court pressed on assigning a meaning to the insertion of Proviso to Rule 2 of 1984 Rules or otherwise, it would imply at proviso becoming otiose, i.e., hollow or empty. According to the Court, even the Rules 3B and 6 of the 1988 Rules are read in consonance which do not leave any ambiguity and that, the period of probation must be excluded from the period of service.

The Court further held that the proviso would operate in full force since Government resolutions cannot override statutory rules when the resolution neither speaks of promotion to DFO post nor seniority. The Court while dismissing the present appeal concluded that the applicable Rules in the present matter leave no ambiguity and must prevail.

[Ashok Ram Parhad v. State of Maharashtra, 2023 SCC OnLine SC 265, judgment dated 15-3-2023]

*Judgment authored by: Justice Sanjay Kishan Kaul.

Justice Sanjay Kishan Kaul — A torch bearer of Freedom of Speech and Expression

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