Gauhati High Court
R. Laldingliana vs State Of Mizoram And Ors. on 17 August, 2000
Author: D. Biswas
Bench: D. Biswas
JUDGMENT
1. This petition has been filed by the petitioner Sri R. Laldingliana who is the senior most Surveyor in the Forest Department of Government of Mizoram. His prayer is for issue of an appropriate writ directing the respondents to review its decision taken in the D.P.C. meeting held on 29.4.1998 and to consider the case of the petitioner for promotion to the post of Forest Ranger against the vacancies reserved for the departmental candidates and to promote the petitioner to the post of Forest Ranger with effect from the date on which his senior colleagues in the Cadre of Surveyor have been promoted as Forest Ranger.
2. I have heard Mr. George Raju, learned counsel for the writ petitioner and also Mr. N. Sailo, the learned State counsel.
3. It is an admitted fact that there were altogether nine vacant posts of Forest Ranger out of which seven posts were to be filled up by direct recruitment and two posts by promotion. The respondent authority advertised the posts for direct recruitment and recommended four candidates for appointment as they were found suitable for such appointment. For the remaining three posts of Forest Ranger which were supposed to be filled up by direct recruitment, for want of suitable candidates, the authority decided to absorb three senior Foresters who had passed Rangers' course to the above three vacant posts. Accordingly, respondent Nos. 5, 6 and 7 who were Foresters in the subordinate service were recommended for appointment to the post of Forest Rangers.
4. The decision of the department to fill-up the three vacant posts of Forest Rangers from the Foresters and the subsequent recommendation of the DPC, both have been challenged for being contrary to the relevant recruitment Rules. Mr. Raju, learned counsel argued that the recruitment Rules provide for two modes of appointment i.e., 50% of the posts of Forest Rangers by direct recruitment and remaining 50% by promotion from and amongst different categories of officers serving in the Forest Department as indicated in the recruitment Rules. The grievance of the petitioner is that the department having failed to fill-up the posts meant for direct recruitment from the candidates, who had applied in response to its advertisement ought to have followed the second mode of appointment i.e. by promotion from and amongst different officers serving in the department in accordance with the provisions provided in the recruitment Rules. The learned counsel further elaborated his argument with reference to the recruitment Rules in order to show that while filling-up the posts of Forest Rangers by promotion, the department ought to have followed the mode prescribed in Column 12 of Annexure 1 to the Recruitment Rules of 1992. According to him, the remaining vacant posts ought to have been filled-up from and amongst the Deputy Rangers as provided in the Rules. In absence of eligible and suitable candidates from the cadre of Deputy Rangers, the department was competent to fill-up the posts from and amongst the Surveyors with not less than seven years of regular service and, thereafter, from and amongst the untrained Deputy Rangers and the subordinate forest staff. His grievance is that in the instant case, the respondent Nos. 5, 6 and 7 belong to the subordinate forest staff, the last choice provided in the recruitment Rules and, as such, the authorities have committed grave error in by-passing the cadre of Surveyors and untrained Deputy Rangers from being included in the consideration zone. For better appreciation of his argument, I would like to reproduce herein below the relevant provision from the recruitment Rules which reads as under:
Method of recruitment whether by direct recruitments or by promotion or by deputation transfer percentage of the vacancies la be (tiled by various methods In case of recruitment by promotion/transfer/deputation grade from promotion /which deputation/ transfer to be made
11.
12.
Promotion-50% Direct rcctt. 50% failing which by transfer. deputation Promotion -Deputy Ranger who has passed Forester course and has put in not less than 6 years regular service in the grade. OR Surveyor with not less than 7 yrs. regular service in the grade and should also have practical experience in Forest works OR Untrained Deputy Ranger with not less than 10 yrs. regular service in the grade OR Subordinate Forest staff who has passed HSLC & Ranger Course of training with not less than 5 yrs, regular service in the grade of Forester I or equivalent.
5. It would appear from Column 11 that the posts of Forest Rangers are to be filled-up either by promotion or by direct recruitment; the ratio being 50 : 50. Column 12 provides for promotion from and amongst Deputy Rangers who have passed Foresters' Course and put in not less than 6 yrs. regular service in the grade or Surveyors with not less than 7 yrs. regular service in the grade with practical experience in forest works and so on. The word "or" inserted in between different categories clearly indicate that the selection for filling up the posts could be made from and amongst the cadres therein in order of choice. The word "or" has to be read as disjunctive having been used as an alternative in order of preference. In the instant case, when sufficient number of eligible candidates were not available for direct recruitment, the department ought to have decided to fill-up the posts by promotion in accordance with the recruitment Rules. The decision of the department that the said posts should be filled-up by the Foresters who belong to subordinate Forest staff is obviously erroneous and contrary to the provisions of the recruitment Rules. The second mode of appointment i.e., by promotion ought to have been made in order of preference as indicated therein and not otherwise. The proceedings of the DPC is available at Annexure 7 of the writ petition. In para 3 it has been clearly mentioned that they have made recommendation as per proposal of the department to absorb three senior Foresters. Since the department's decision to fill-up the posts from the Foresters of the subordinate staff which is the last choice in the recruitment Rules is erroneous and contrary to the Rules, the consequent decision on the basis of such proposal also cannot but be erroneous. The conclusion, therefore, is inevitable that the decision of the DPC in recommending the respondent Nos. 5, 6 and 7 for their promotion is illegal.
6. It appears that in para 6 of the affidavit-in-opposition submitted by the State, an inadvertent mistake has crept in where the private respondents have been shown to be Surveyors and senior to the writ petitioner. Mr. Sailo, learned State counsel, however, pointed out that they have been wrongly shown to be Surveyors. In fact they are Foresters pertaining to the last category as shown in Column 12 of the recruitment Rules. It is also the case of the petitioner that the private respondents are not Surveyors. They being junior to the writ petitioner are not entitled to consideration for promotion when officers in the higher cadres as indicated in the recruitment Rules are available for such promotion.
7. In the circumstances, I am of the opinion that the petitioner as well as other similarly situated candidates in the higher grades, if any, are entitled to consideration for promotion to the post of Forest Rangers before any officer from the next two grades are taken into consideration in succession. The State authorities have committed gross error and illegally promoted the private respondents ignoring the case of the writ petitioner.
8. In the result, the writ petition is allowed. Since there is no prayer for setting aside the promotion of the private respondent Nos. 5, 6 and 7, I think an order to that effect is not immediately called for. The respondents are further directed to re-consider the entire matter afresh in accordance with the provisions of recruitment Rules as interpreted above and pass appropriate orders accordingly. If the writ petitioner or any other officer similarly situated in higher grade are found eligible for promotion, they should be so promoted if necessary by reverting the private respondents after giving them an opportunity of hearing.
9. This writ petition accordingly stands disposed of. No order as to costs.