Gujarat High Court
Karimbhai Alibhai Multani & 6 vs State Of Gujarat & 2 on 1 December, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/9880/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9880 of 2015
With
CIVIL APPLICATION NO. 6359 of 2015
In
SPECIAL CIVIL APPLICATION NO. 3792 of 2015
With
SPECIAL CIVIL APPLICATION NO. 3792 of 2015
With
SPECIAL CIVIL APPLICATION NO. 12876 of 2014
With
CIVIL APPLICATION NO. 13259 of 2014
In
SPECIAL CIVIL APPLICATION NO. 6624 of 2014
With
CIVIL APPLICATION NO. 127 of 2015
In
SPECIAL CIVIL APPLICATION NO. 6624 of 2014
With
SPECIAL CIVIL APPLICATION NO. 3311 of 2014
With
SPECIAL CIVIL APPLICATION NO. 6624 of 2014
With
SPECIAL CIVIL APPLICATION NO. 10989 of 2014
With
SPECIAL CIVIL APPLICATION NO. 452 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 456 of 2015
Page 1 of 36
HC-NIC Page 1 of 36 Created On Wed Dec 02 02:00:22 IST 2015
C/SCA/9880/2015 CAV JUDGMENT
With
SPECIAL CIVIL APPLICATION NO. 4535 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 4545 of 2015
With
SPECIAL CIVIL APPLICATION NO. 9480 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 9494 of 2015
With
SPECIAL CIVIL APPLICATION NO. 9976 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ?
NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India NO or any order made thereunder ?
========================================================== KARIMBHAI ALIBHAI MULTANI & 6....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) ========================================================== Appearance:
MR GM JOSHI, ADVOCATE for the Petitioner(s) No. 1 - 7 MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Page 2 of 36 HC-NIC Page 2 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 3 CA/6359/2015:
MR MT SAIYAD, ADVOCATE for the Petitioner(s) MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Respondent(s) No. 1 SCA/3792/2015:
MR MT SAIYAD, ADVOCATE for the Petitioner(s) MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Respondent(s) No. 1 SCA/12876/2014:
MR BHUNESH C RUPERA, ADVOCATE for the Petitioner(s) MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Respondent(s) No. 1 CA/13259/2014:
M/S RJ RAWAL ASSOC., ADVOCATE for the Petitioner(s) MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Respondent(s) No. 1 CA/127/2015:
M/S RJ RAWAL ASSOC., ADVOCATE for the Petitioner(s) MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Respondent(s) No. 1 SCA/3311/2014:
MR PREMAL R JOSHI, ADVOCATE for the Petitioner(s) MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Respondent(s) No. 1 SCA/6624/2014:
M/S RJ RAWAL ASSOC., ADVOCATE for the Petitioner(s) MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Respondent(s) No. 1 SCA/10989/2014:
MR BHUNESH C RUPERA, ADVOCATE for the Petitioner(s) Page 3 of 36 HC-NIC Page 3 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Respondent(s) No. 1 SCA/452/2015 TO SCA/456/2015:
MR BHUNESH C RUPERA, ADVOCATE for the Petitioner(s) MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Respondent(s) No. 1 SCA/4535/2015 TO SCA/4545/2015:
MR BHUNESH C RUPERA, ADVOCATE for the Petitioner(s) MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Respondent(s) No. 1 SCA/9480/2015 TO SCA/9494/2015:
MR BHUNESH C RUPERA, ADVOCATE for the Petitioner(s) MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Respondent(s) No. 1 SCA/9976/2015:
MS BHAKTI G THAKER, ADVOCATE for the Petitioner(s) MS MANISHA LAVKUMAR SHAH GP WITH MR ROHAN YAGNIK AGP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 01/12/2015 CAV COMMON JUDGMENT 1 Since the issues raised in all the captioned writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
2 The petitioners of the Special Civil Application No.6624 of 2014, Page 4 of 36 HC-NIC Page 4 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT serving as Beat Guards, Forest Department, Gujarat, have prayed for the following reliefs:
"19(A) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus quashing and setting aside the notification and rules issued thereunder dated 25.03.2009 known as "Forest Department (Department Examination) Rules, 2009" / The Guard Class - III (Department Examination) Rules, 2009 issued by the Forests and Environment Department, Sachivalaya, Gandhinagar.
(B) Pending hearing and final disposal of the present petition, Your Lordship may be pleased to stay the operation, implementation and execution of the notification dated 25.03.2009 known as The Guard Class
- III (Departmental Examination) Rules, 2009 issued by the Chief Conservator of Forests, Gandhinagar Circle, Gandhinagar.
(C) Pending hearing and final disposal of the present petition, Your Lordship may be pleased to direct th respondents to promote the petitioners without insisting for passing the Examinations as contemplated in the impugned Rules dated 25.03.2009 known as The Guard Class - III (Departmental Examination) Rules, 2009.
(C) Be pleased to restrain respondents from implementing and executing the order dated 05.03.2014 for the purpose of granting promotions on the basis of socalled compliance of impugned notification and rules of 2009, and not to promote any employee junior to the petitioners on the post of Forester from the post of Beat Guards.
(D) Be pleased to award the cost of this petition.
19(D) Be please to restrain the respondent from granting or giving promotion to anybody whosoever may be junior to the petitioner. (E) Be pleased to grant any such other and further relief/s as may be deemed just and proper."
3 The petitioners of the Special Civil Application No.9880 of 2015 and allied matters are also serving as the Forest Guards, Forest Department, and have prayed for the following reliefs:
"5(a) This Honourable Court may be pleased to issue a writ of Page 5 of 36 HC-NIC Page 5 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT mandamus or in the nature of mandamus or any other appropriate writ, direction or order quashing and setting aside the direction/order/ instruction dated 7.6.2015, issued by Principal chief Conservator of Forest and all consequential actions including the list if any prepared by the respondent no.3 on the basis of such direction holding that the same is contrary to Guard, ClassIII (In the Subordinate Service of the Forest Department (Department Examination)) Rules, 2009 and Forester Class III, Gujarat Subordinate Forest Service Recruitment Rules, 2007 and also violative of article 14, 16, 21 and 309 of the Constitution of India; and be pleased to direct the respondents to prepare the list in strict compliance of the Rules 2007 and 2009;
(b) Be pleased to issue writ of mandamus or in the nature of mandamus holding that the respondent no.2 Principal Chief Conservator of Forest, State of Gujarat has no authority of law to issue any direction/ order/instruction contrary to the (In the Subordinate Service of the Forest Department (Department Examination)) Rules, 2009 and Forester Class III, Gujarat Subordinate Forest Service Recruitment Rules, 2007;
(C) During the admission, pendency and final disposal of this petition, be pleased to stay the operation, implementation and execution of the instruction/order/direction issued by the Principal Chief Conservator of Forest on 7/6/2015 and be pleased to restrain the Chief Conservator of Forest, Junagadh Zone from preparing any such list as directed by the said communication and restrain the respondents from acting on such list if at all prepared;
(d) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice;
(e) Be pleased to award cost of this petition;"
4 I may clarify, at the outset, that so far as the petitioner No.1 of the
Special Civil Application No.6624 of 2014 is concerned, he has retired from service, and therefore, so far as he is concerned, this petition has become infructuous. So far as the petitioner No.2 is concerned, he has been promoted to the post of the Forester, but is seeking promotion from 2010 onwards. The petitioners Nos.3, 4 and 5 are still in service, and they seek promotion to the post of Forester.Page 6 of 36
HC-NIC Page 6 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT 5 It is the case of the petitioners of the Special Civil Application No.6624 of 2014 that the Notification issued by the State of Gujarat dated 25.03.2009, which makes the departmental examination as a condition precedent for seeking promotion to the post of the Forester, is illegal, arbitrary and discriminatory. They also seek to challenge the Rules 2009, known as, "The Guard, Class III (In the Subordinate Service of the Forest Department (Departmental Examination)) Rules, 2009" on the ground that the said rules could not have been made applicable with retrospective effect. It is the case of the petitioners that the Rules of 2009 are violative of Articles 14 and 16 of the Constitution of India, and the same takes away their legal right of promotion by altering the conditions of service. To put it in other words, it is the case of the petitioners that when they were appointed, they were governed by the rules called "The Foresters (Subordinate Forest Service) Recruitment Rules, 1969" framed by the State Government in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. According to the petitioners, the Rules of 1969 did not provide for any departmental examination for seeking promotion. The Rules of 1969 provided that the appointment to the posts of Foresters, in the lower Subordinate Forest Service, shall be made either by promotion of a person of proved merit and efficiency from amongst the Guards, or by direct selection.
Page 7 of 36 HC-NIC Page 7 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT 6 According to the petitioners under the Rules of 1969, the procedure for examination and the syllabus is prescribed, and if the impugned rules are compared with the old rules, the same are contradictory to each other even in terms of the syllabus. According to the petitioners, there are no separate rules for promotion, and therefore, the eligibility criteria contained in the Rules of 1969 would apply to the Guards eligible for promotion to the posts of the Foresters. It is their case that the eligibility prescribed in the Rules of 1969 should be made applicable so far as the promotion is concerned. 7 Mr. Maulin Raval, the learned counsel appearing for the petitioners vehemently submitted that the Government could not have changed the conditions of service of his clients by changing the eligibility criteria for promotion by introducing an examination with a syllabus that could be cleared or passed only by a law Graduate or Postgraduate. He submitted that his clients had joined the service with the Forest Department as Beat Guards almost 30 years back. They are not highly qualified. It is virtually impossible to meet with the requirements, as laid down by the Government, for seeking promotion. He submitted that his clients are almost on the verge of retirement. The post of Forester is the only promotional post before the petitioners retire. 8 He submitted that his clients possessed the required educational Page 8 of 36 HC-NIC Page 8 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT qualifications, as laid down in the Rules of 1969. He further submitted that his clients have already undertaken an extensive training to hold the post of the Forester.
9 Mr. Raval submitted that for the purpose of promotion and direct recruitment, Rules 3 to 17 of the Rules of 1969 would apply. According to the said rules, if a direct recruited Guard fulfills the eligibility criteria, he can seek promotion, and thereafter, he is to pass the examination and training. If he fails to clear the examination, then, according to the Rule 13 of the said Rules, he is to be reverted to his original post. According to Mr. Raval, the new rules should be read harmoniously with the Rules of 1969, which are still in operation and are not repealed. 10 According to Mr. Raval, the new rules are prospective and if they are implemented with retrospective effect, then the Rules of 1969 would stand repealed.
11 Mr. Raval made a serious complaint against the State Authorities as regards the examination, which is to be conducted twice in a year, ordinarily, in the months of May and November. He submitted that the respondents authorities are obliged to conduct such examination, however, since the year 2009 till this date, such examination has been conducted only for two times, and that too, after publication of the Notification dated 25.03.2009. He pointed out that on account of such Page 9 of 36 HC-NIC Page 9 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT lapse on the part of the authorities, many Beat Guards retired from service without any promotion.
12 Mr. Raval also pointed out that his clients had already filled up their forms in the year 2010 for the examination through their respective departments, but they are still lying in the office of the Chief Conservator of Forest (CCF), Gandhinagar.
13 Mr. Raval also submitted that the Deputy Conservator of Forest, East Forest Division, Bhuj, vide its letter dated 15.02.2012, had sought necessary information from the Principal Chief Conservator of Forest, Gujarat State, Gandhinagar with regard to the applicability of the departmental examination for promotion. He pointed out that the Principal Chief Conservator of Forest, Gujarat State, Gandhingar, vide its reply dated 16.02.2012, had clarified that according to the provisions of the prevailing rules, there was no requirement to clear the departmental examination for promotion.
14 Mr. Raval submitted that by an order dated 05.05.2012, the respondent authority promoted 60 employees from the post of the Beat Guards to the post of the Foresters without insisting for clearance of the departmental examination, as contemplated in the rules. He further pointed out that in the year 2014, 19 employees had been promoted as Foresters, although they had not cleared any examination, as provided in Page 10 of 36 HC-NIC Page 10 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT the Rules 2009.
15 Mr. Raval submitted that he had to prefer this petition since the authorities were contemplating to promote the employees junior to the petitioners.
16 Mr. Raval submitted that the Supreme Court in the case T.R. Kapur and others vs. State of Haryana, reported in 1986 (Supplementary) SCC 584 has held that the right of promotion is a condition of service and the benefits acquired, by virtue of the rules framed under the proviso to Article 309 of the Constitution of India, should not be taken away retrospectively by an amendment. 17 In such circumstances referred to above, Mr. Raval prays that his clients should be considered for promotion to the posts of the Forester, ignoring the amended rules, i.e. without insisting for clearance of the departmental examination.
18 In support of his submissions, reliance has been placed on the following decisions:
(1) Chairman, Railway Board and others vs. C.R. Rangadhamaiah and others [1997 (6) SCC 623] (2) B.V. Sivaiah vs. K. Addanki Babu [1998 (6) SCC 720] (3) ExMajor N.C. Singhal vs. Director - General, Armed Forces Page 11 of 36 HC-NIC Page 11 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT Medical Services [1972 (4) SCC 765] (4) Nirmal Chandra Bhattacharjee and others vs. Union of India and others [1997 (Supplementary) 2 SCC 363] (5) T.R. Kapur and others vs. State of Haryana and others [1986 (Supp) SCC 584] (6) Mohammed Bhakar vs. Y. Krishna Reddy [1970 SLR 768] (7) State of Haryana vs. Shamsher Jang Shukla [AIR 1972 SC 1546] (8) State of Maharastra vs. Jagannath Achyut Karandikar [1989 (Supplementary) 1 SCC 393] (9) Gujarat Rajya Panchayat Seva Karmachari Maha Mandal vs. State of Gujarat [1999 (part 2) GLR 1783] (10) Purbanchal Cables and Conductors Private Limited vs. Assam State Electricity Board [2012 (7) SCC 462] (11) State of Madhya Pradesh and others vs. Yogendra Shrivastava [2010 (12) SCC 538] SPECIAL CIVIL APPLICATION NO.9880 OF 2015 AND ALLIED MATTERS:
19 Mr. Gautam Joshi, the learned counsel appearing for the petitioners submitted that his clients possessed the requisite qualifications and were appointed as the Forest Guards, after a regular process of recruitment. They were appointed to the posts prior to 2007 i.e. between 1991 and 2004. He submitted that the recruitment rules for Page 12 of 36 HC-NIC Page 12 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT the post of the Forester were framed in the year 2007 and were notified on 01.04.2007, under the nomenclature, "Forester, Class III, Gujarat Subordinate Forest Service Recruitment Rules, 2007". 20 Mr. Joshi pointed out that according to the amendment introduced on 21.04.2009, one of the conditions prescribed for seeking promotion to the post of the Forester is passing of the departmental examination, as prescribed by the State Government. 21 Mr. Joshi submitted that a Forest Guard would become eligible to seek promotion to the post of the Forester if he is able to clear the examination within a period of three years and within three chances, if he is desirous of maintaining his seniority in the promotional cadre of the Forester. He submitted that all those employees, who passed their examination after the prescribed period and prescribed chances, would lose their seniority, as compared to those who are promoted after passing the examination within the prescribed period and chances. The Guards, who had not passed the examination, are not entitled to be promoted.
22 Mr. Joshi pointed out that his clients have passed the examination within the prescribed chances.
23 According to Mr. Joshi, since his clients have cleared the Page 13 of 36 HC-NIC Page 13 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT examination, they are entitled to seek promotion. Whereas the clients of Mr. Maulin Raval, the learned counsel appearing for the other set of petitioners, although have not cleared the departmental examination, cannot seek promotion to the post of Forester. Mr. Joshi submitted that the decision of the State Government to promote the Beat Guards, at random to the posts of the Forester, without insisting for clearance of the departmental examination at random, is contrary to the rules and prejudicial to those employees who have cleared the examination and are not being promoted.
24 According to Mr. Joshi, mere length of service or the scope of promotion during the period of service as a Beat Guard, being very minimal by itself, cannot be a ground to promote a Beat Guard to the post of the Forester, without complying with the rules. 25 Mr. Joshi, the learned counsel placed reliance on a Constitutional Bench decision of the Supreme Court in the case of the State of Jammu and Kashmir vs. Triloki Nath Khosa [AIR 1974 SC 1] to fortify his submission that the Government can alter the terms and conditions of its employees unilaterally, and though in modern times, consensus in matters relating to public service is often attempted to be achieved, consent is not a precondition of the validity of rules of service. 26 Mr. Joshi submitted that if the impugned rules provided for Page 14 of 36 HC-NIC Page 14 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT recalling a promotion already made, then probably, the same could have been declared as illegal. That is not so, so far as the case in hand is concerned. Mr. Joshi pointed out that the decision of the Supreme Court in the case of Triloki Nath Khosa (supra) has been considered in the case of the Chairman, Railway Board and others (supra). According to Mr. Joshi, the observations made by the Supreme Court in para 20, answer all the submissions canvassed by Mr. Maulin Raval, the learned counsel appearing for the petitioners of the Special Civil Application No.6624 of 2014.
27 In such circumstances referred to above, Mr. Joshi prays that the Special Civil Application No.6624 of 2014 deserves to be rejected and the respondents be directed to abide by the rules, which provide for promotion to the post of the Forester.
STANCE OF THE STATE GOVERNMENT:
28 Ms. Manisha Lavkumar Shah, the learned Government Pleader appearing for the State Government, at the very outset, clarified that the promotions, which have been given from the Beat Guard to Forester, without clearing the departmental examination, is contrary to the rules and the said action of the concerned authority will be rectified at the earliest in accordance with law.
29 Ms. Shah placed reliance on the following averments made in the Page 15 of 36 HC-NIC Page 15 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT affidavitinreply filed by one Shri J.V. Vyas, the Deputy Conservator of Forest, Banaskantha. Ms. Shah placed reliance on the following averments made in the affidavitinreply dated 09.07.2014:
"8. I say and submit that in view of the letter dated 12.07.2010 Shri N.J. Ghasura and P.O. Pala have filled in the form however, Shri Dabhi has not filled up the said form. I say and submit that on considering the notification dated 25.03.2009 the exam is to be conducted twice in a year i.e. in the month of May and in the month of November.
9. I say and submit that it is not in dispute that the petitioners have been already given the benefit of the higher pay scale therefore, it cannot be said that they are adversely affected because of such exam. I further say and submit that as far as promotion is concerned, for that passing of the departmental examination is mandatory Shri N.J. Ghasura has been given the benefit of first higher pay scale on 28.10.1992 and that of second higher pay scale on 28.04.2007 Mr.P.O. Pala has been given the benefit of first higher pay scale on 19.03.1994 in accordance with eligibility. The copy of the relevant documents are annexed herewith and marked as AnnexureI 'colly'.
10. I say and submit that after the policies of 2007 and 2009 has come into force, the recruitment to the post of Guard has a prerequisite of being SSC/10th standard pass. I say and submit that it is not in dispute that Guard is given appropriate training at the given point of time and examination with respect to said training is also conducted and they have to clear the same. However, as far as the promotion is concerned it cannot be said that departmental examination it cannot be conducted as they have already given some examination on the basis of training at the time of recruitment. I say and submit that it is false that the promotion has only been given to the employees who have been appointed till 2006 and 2007. I say and submit that in the Gandhinagar Zone and in all there are 82 seats available for the post of 'Forester' 22 posts are filled by way of promotion and 60 posts, are yet to be filled. As far as the Gandhinagar forest circle is concerned there are 30 posts which are yet to be filled. Therefore, in the above facts and circumstance I say and submit that there are many posts available, which are yet to be filled and merely because an individual feels that he would not be able to clear the departmental examination, required for the purpose of promotion, he cannot prefer a petition under Article 226 of the Constitution of India challenging the notification by way of which such examination is made as condition precedent for the purpose of promotion. Therefore, the petition may kindly be dismissed in limine."Page 16 of 36
HC-NIC Page 16 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT 30 Ms. Shah also placed reliance on the affidavitinreply by Shri H.B. Ajmeri, the Under Secretary, Forest and Environment Department, Sachivalaya, Gandhinagar dated 28.07.2014. Ms. Shah placed reliance on the following averments:
"5. It is respectfully submitted by way of the present petition, the petitioners have interalia prayed for quashing and setting aside the notification and rules dated 25.03.2009, known as Forest Department (Departmental Examination) Rules 2009, issued by the Forest and Environment Department, Sachivalaya, Gandhinagar.
6. The petitioners have also prayed that they may be promoted without insisting for passing the examination by virtue of the Departmental Rules dated 25.03.2009 impugned in the present petition.
7. It is respectfully submitted that an affidavit in reply is filed in the matter on behalf of the Deputy Conservator of Forest, Banaskantha, clearly indicating that in view of the notification dated 25.03.2009, the department examination is mandatory and for the purpose of promotion, an employee is required to clear such examination.
8. It is respectfully submitted that initially the rules governing recruitment for the post of Forests came to be introduced by way of Recruitment Rules, 1969. The said rules provided for promotion of the person of proved merit and efficiency amongst the guards (page 33). These rules came to be superseded by way of notification dated 01.04.2007 (page 40). These rules clearly provided for promotion of a person of proved merit and efficiency with the condition that the candidate is required to have worked for not less than 5 years in the cadre of guards. ClassIII and must have passed the qualifying examination for computer knowledge, as may be prescribed by the Government in accordance with the Classification and Recruitment (General) Rules, 1967. The petitioner ought to have placed on record the amendment to the said rules. It came to be introduced by way of notification dated 21.04.2009. The said rules thought are necessary for adjudication of the present petition, the petitioner has not produced the said amendment on record, which is essential for the issues raised in the present petition by way of the said amendment in the rules of Forests Class III after SubClause 2, SubClause 3 came to be inserted and the condition to pass the Departmental Examination as prescribed by the Government came to be introduced. The said rule clearly provides that the for being entitled to promotion, the candidate is required to pass the departmental examination, as prescribed by the Government, which the present petitioners have admittedly not clearly. A copy of notification dated 21.04.2009 is annexed herewith and Page 17 of 36 HC-NIC Page 17 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT marked as "Annexure R1".
9. It is respectfully submitted that in the rejoinder of the petition, the petitioner has given instances of promotions extended from beat guard to Forester, without there being any departmental examination, based on the recommendation prepared by the Selection Committee. However, it would be pertinent to note herein that these promotions which are extended to the employees without clearing the departmental examination are clearly contrary to the Departmental Examination Rules of 25.03.2009 as well as the Recruitment Rules to the post of Forester Class III 2007. Therefore, the decision on the part of the competent authority of extending promotion to the candidates without passing of the Departmental Examination is required to be rectified by passing necessary instructions from the Office of Forest Department to the Principal Chief Conservator of Forest and Subordinate Office. It would be pertinent to note herein that as far as the stand of present deponent on behalf of the Forest Department is concerned, the same is clarified by submitting that any employee who is promoted without clearing the Departmental Examination as provided in the Rules of 2009, is dehors the Recruitment Rules as well as the Examination Rules.
10. It is respectfully submitted that at this stage, it would be appropriate to refer to Clause 3(i) which clearly provides that any guard who is appointed prior to the appointed date shall be required to pass the examination within a period of 3 years from the appointed date. The appointed date, as is provided in the rules, is the date on which the rules shall come into force. Therefore, any guard who was appointed prior to 09.04.2009, for being eligible to be promoted to the post of Forester, shall be required to pass the departmental examination, as provided in the Rules of 25.03.2009.
11. It is respectfully submitted that at the cost of repetition, it is submitted that those employees, who have not cleared the departmental examination, are required to be placed in their original post of guard, as their promotions are contrary to the rules, as submitted above.
12. It will be clear from the record that all other persons with whom the petitioners seek equality are promoted after 2009 and therefore the said promotions are dehors the rules and as per the settled legal position, equality in negative will not be applied in the case of present petitioners. Even otherwise, it is a settled legal position that the promotion of any person is required to be considered as per the existing rules/amended rules, if any, on the date of his consideration and no person has right to contend or seek that promotion, may be granted, without considering the amended or modified rules."
31 Ms. Shah also placed reliance on a Constitution Bench decision of Page 18 of 36 HC-NIC Page 18 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT the Supreme Court in the case of Triloki Nath Khosa (supra). Ms. Shah placed reliance on a decision of this Court rendered by a learned Single Judge in the case of Kiranben P. Chaudhary vs. State of Gujarat [2012(3) GCD 2499].
32 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions fall for my consideration:
(a) Whether the rules called the Guard, Class III (In the Subordinate Service of the Forest Department (Departmental Examination)), Rules 2009, published vide Notification dated 25.03.2009, are, in any manner, illegal or arbitrary in nature?
(b) Whether the rules of 2009, which operate in futuro so as to govern the future right of those already in service as the Beat Guards, can be assailed on the ground of retroactivity, as being violative of Articles 14 and 16 of the Constitution of India?
(c) Whether the rules in question take away any benefits already acquired under the Rules of 1969?
(d) Whether mere length of service, by itself, is sufficient to put forward the claim of promotion without clearing the departmental examination?
Page 19 of 36 HC-NIC Page 19 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT
(e) Whether the Beat Guard serving with the Forest Department can put forward his claim for promotion to the post of the Forester only on the ground that there is no other promotional avenue before he retires from service?
(f) Whether the Beat Guards have any indefeasible right of being promoted to the post of Foresters without clearing the departmental examination?
33 On 30.07.2014, a learned Single Judge of this Court passed the following order in the Special Civil Application No.6624 of 2014, which reads as under:
1. Mr. M. R. Rawal, learned advocate for the petitioners pointed out that while in case of the petitioners, the respondents are insisting upon due compliance with the recruitment rules as brought into force vide notification dated 25th March, 2009, in case of as many as about 150 similarly situated beat guards, the respondents have given a gobye to the said rules and promoted them to the post of forester. It was further pointed out that while passing the departmental examination is a precondition for being promoted to the post of forester and the rules provide for holding such examinations twice in a year, the respondents, in the first place, are not holding such examinations and, as and when such examinations are held, the seniority of the petitioners is not being considered and persons junior to them have been permitted to appear in the departmental examinations and upon passing such examinations, have been promoted to the post of forester. It is submitted that there is total arbitrariness and capriciousness in the manner in which the Rules of 2009 are being implemented.
2. On behalf of the respondent State authorities, Mr. D. M. Devnani, learned Assistant Government Pleader has submitted that if at all any beat guards have been promoted to the post of forester in breach of the Rules of 2009, the petitioners cannot claim negative equality.Page 20 of 36
HC-NIC Page 20 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT
3. While it is true that negative equality cannot be claimed, this is not a case where one, two or five persons have been promoted de hors the rules. In the present case, as many as about 150 beat guards have been promoted without compliance with the provisions of the Rules of 2009 and when it comes to considering the case of the petitioners, it is contended that such rules are required to be followed. Moreover, juniors to the petitioners have been permitted to appear in the departmental examinations without affording any such opportunity to the petitioners and such juniors have been promoted. Needless to state that the action of the respondents causes serious prejudice to the rights of the petitioners.
4. Under the circumstances, the Court is of the view that the matter requires consideration. Hence, Issue Rule returnable on 15th September, 2014. By way of interim relief, the respondents shall give equal treatment to the petitioners as has been done in the case of similarly situated beat guards. Mr. M. N. Devnani, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents."
34 Before adverting to the rival submissions canvassed on either sides, I deem it necessary to look into the rules governing the appointment and promotion.
35 In exercise of powers conferred by the proviso to Article 309 of the Constitution of India, the State Government framed the following rules to provide for recruitment to the posts of the Foresters in lower Subordinate Forest Service, namely:
"1. Three rules may be called the Foresters (Subordinate Forest Service) Recruitment Rules, 1969.
2. Appointment to the post of Foresters in the lower Subordinate Forest Service, shall be made either
(a) by promotion of a person of proved merit and efficiency from amongst the Guards; or
(b) by direct selection.
3. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate must Page 21 of 36 HC-NIC Page 21 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT
(a) be not less than 18 years of age and not more than 25 years of age on the date of commencement of the Rangers' Course.
(b) possess the certificate of Secondary School Certificate Examination or its equivalent examination;
(c) possess the following minimum standard of physique:
(i) Height 5'4" or 1.6256 metres of 163 cms.
(ii) Chest : Normal 31" or 0.7874 metres or 79. c.m.s.
Expanded 33" or 0.8382 metres or 84 c.m.s. Minimum expansion 2" or 5 c.m.s.
(d) for Adivasi Candidates:
(i) Height : 5.1" or 1.5494 metres or 155 cms
(ii) Chest: Normal 30" or 0.7620 metres or 76 cms. Expanded 32" or 0.8128 metres (81 Cms.) Minimum Expansion 2" or Cms.
4. The appointment by direct selection and by promotion shall be made in the ratio of 2:1:2.
5. The Guards who have passed the Secondary School Certificate Examination or its equivalent examination and who conform to the above age limit and physical standards shall be eligible to compete for direct selection.
6. The Guards having the following qualification shall also be eligible to compete for the selection.
(i) Those candidates who have minimum educational qualification of 9th Standard, and are under 30 years of age, and who have passed the final examination in the Guards training class and who also have at least 5 years service experience.
(ii) Those candidates who have minimum educational qualification of 9th standard, and who also have not less than 10 years service experience.
(iii) Guards who have stood first in the Guards Training Class final examination.
7. The selection of Guards to the post of Forester shall be made by written examination and oral examination except in the case of Guards, who have stood first in the Guards Training Class if their service records are good.
Page 22 of 36 HC-NIC Page 22 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT
8. The selected candidate shall also be required to be undergo a medical examination and waking test of 16 miles (or 25 Kms.) within 4 hours.
9. The selected candidate shall be required to undergo practical training in the field for a period of two months.
Thereafter they shall be sent to the Foresters' Training Class for training of through grounding in the theoretical and practical aspects of Forestry. The practical training in the field shall not be required in the case of in service candidates.
10. The training in the Foresters' Training Class shall be at Government cost. During the period of practical training in the field and also training in the Training Class, the candidate shall be receive stipend, dress articles, equipment and other allowances, if any, as the Government may, from time to time fix.
11. The Guards who are selected by direct selection, during the period of training, shall receive their pay, stipend dress articles, equipments and other allowances, if any, as the Government may, from time to time fix.
12. Before undergoing training, the candidate shall have to give a bond for such amount as the Government may, from time to time, fix to serve Government for a period of at least five years after passing out from the Training Class, failing which, they shall have to refund to Government the amount prescribed in their bond which shall be inclusive of the cost of training and the stipend and other expense incurred by Government on the candidate.
13. Those trainees who fail to pass the final examination of the Foresters Training Class in the final attempt will be permitted one more chance at their own cost, provided they were within the age of 23 years at the time of their own cost, provided they were within the age of 23 years at the time of their selection. Such candidates shall not be entitled to stipend or any other allowances. In service candidate who fail to pass the final examination in spite of two chances given to them shall be retained as Guards. Rest of the candidates shall be required to refund to the Government the amount prescribed in their bond.
14. On successful completion of the final examination of the Training Class, the candidate shall be appointed as a Forester.
15. A candidate appointed as a Forester, shall be on probation for a period of two years.
Page 23 of 36 HC-NIC Page 23 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT
16. The seniority of the Foresters shall be governed by their respective rank in the final examination, irrespective of the date of joining the service.
17. A candidate appointed as a Forester, shall be required to pass the Departmental Examination and an examination in Hindi or Gujarati or both in accordance with the rules made by the Government in that behalf." 36 In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of all the existing rules, the following rules were framed to provide for regulating the recruitment to the posts of the Foresters, Class III, in the Gujarat Subordinate Forest Service in the Forest Department, vide Notification dated 01.04.2007, namely:
"1. These rules may be called the Forester, ClassIII Gujarat Subordinate Forest Service Recruitment Rules, 2007.
2. Appointment to the post of Forester Class III shall be made either,
(a) by promotion of a person of proved merit and efficiency from amongst the persons who have:
(i) worked for not less than five years in the cadre of Guards, Class III in the subordinate service of the Forest Department; and
(iii) passed the qualifying examination for computer knowledge as may be prescribed by the Government in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967.
Provided that where the appointing authority is satisfied that a person having the experience specified in subclause (a) (i) of above is not available for promotion and that it is necessary in the public interest to fill up a post by promotion even of a person having experience for a lesser period, it may, for reasons to be recorded in writing, promote such person who possesses experience of a period of not less than two thirds of the period specified in subclause (a)(i) above;
OR Page 24 of 36 HC-NIC Page 24 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT
(b) by direct selection.
3. The appointment by direct selection and by promotion shall be made in the ratio of 1:2 respectively.
4. To be eligible for appointment by direct selection to the post mentioned in rule2, a candidate shall;
(a) not be less than 18 years of age and not be more than 25 years of age.
Provided that the upper age limit may be relaxed in favour of a candidate who is already in the service of the Government of Gujarat in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967;
(b) have passed the Higher Secondary School Certificate Examination conducted by the Gujarat Secondary and Higher Secondary Education Board or its equivalent qualification recognized by the Government;
(c) possess the basic knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967;
(d) possess adequate knowledge of Gujarati and/or Hindi;
(e) possess the following standard of physique,
(i) In case of a male candidate not be less than - 163 centimetres in height (155 centimeters in case of candidate belonging to Scheduled Tribes of the Gujarat origin) and have a chest measurement of not less than 84 centimetres (81 centimetres in case of candidate belonging to Scheduled Tribes of the Gujarat origin) when fully expanded with a minimum expansion of 5 centimetres,
(ii) In case a female candidate, not be less than 150 cms. in height (142 cms in case of candidates belonging to Scheduled Tribes of the Gujarat Origin) and have chest measurement of not less than 74 cms (71 cms, in case of candidate belonging to Scheduled Tribes of the Gujarat Origin) when fully expanded with a minimum expansion of 5 centimetres;
(f) be required to undergo a walking test of 25 kms. in 4 hours and a medical examination.
Page 25 of 36 HC-NIC Page 25 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT
5. A candidate appointed by direct selection shall be on probation for a period of one year.
6. A selected candidate shall be required to pass the examination in Hindi or Gujarati or both in accordance with the rules prescribed by the Government.
7. A candidate appointed by direct selection or by promotion shall have to undergo such training and pass such examination as may be prescribed by the Government.
8. A selected candidate shall be required to furnish a security and surety bonds in such form, for such amount and for such period as may be prescribed by the Government."
37 In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the State Government framed the following rules for regulating the conditions of service of the persons appointed to the post of the Guard, Class III, in the subordinate service of the Forest Department, in so far as they relate to passing of the Departmental Examination, namely, "1. (i) These Rules may be called the Guard, Class III, (in the subordinate service of the Forest Department (Departmental Examination) Rules, 2009.
(ii) They shall come into force on the date of their publication in the Official Gazette.
(iii) They shall apply to the persons appointed as Guard, Class III, by direct recruitment.
2. In these rules the context otherwise requires,
(a) "Appendix" means the appendix to these rules;
(b) "appointed date" means the date on which these rules shall come into force;
(c) "Direct recruit" means a persons appointed as Guard;
(d) "Examination" means the departmental examination prescribed Page 26 of 36 HC-NIC Page 26 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT under these rules;
(e) "Guard" means a person appointed as Guard, Class III, by direct selection;
(f) "specified chance" means the number of chances specified in these rules within which a Guard is required to pass the examination.
(g) "specified period" means the period specified in these rules within which a Guard is required to pass the examination.
(h) "Institution" means Gujarat Subordinate Services Selection Board or any other Institution or Department duly authorized by the Government to conduct this examination.
3. To be eligible for promotion to the post of Forester,
(i) a Guard appointed prior to the appointed date shall require to pass the examination within a period of three years from the appointed date;
(ii) a Guard appointed on or after the appointed date shall require to pass the examination within a period of three years commencing on and from the date of his completion of three years service as a Guard;
Provided that if the period of passing the examination as provided expires before the date of the date of the holding of the examination the said period shall be deemed to have been extended until the date of the declaration of the result of the examination to hold.
4. To be eligible for appearing at the examination, a Guard must have worked continuously for a minimum period of three years as a Guard at the time making the application for appearing at the examination.
5. The examination required to be passed under clause (i) or (ii) of rule 3 shall require to be passed in not more than three chances within the specified period;
Provided that the period belonging to the Scheduled Castes and Scheduled Tribes may be allowed one additional chance which shall require to be availed of within a period of year from the date of declaration of the result of the examination at which the last normal chance shall have been availed.
6. If a Guard fails to pass the examination as required under these Page 27 of 36 HC-NIC Page 27 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT rules, he shall not be eligible for promotion as Forester until he passes the examination;
Provided that if in the case of any persons, the State Government is satisfied that he could not pass the examination at which he had his last normal chance of reasons beyond his control or that he failed to pass such a examination by a very narrow margin of marks, the Deputy Conservator of Forest under whom he is serving may, after reasons in writing, give him one more chance to pass the examination.
7. A Guard who fails to pass the examination within specified in rule 3 and according to the chances available to him rule 5, he shall not withstanding such failure, be eligible to appear at any time in such examination, on payment of an examination fee as may be determined by Government from time to time. If he passes the examination, he shall be eligible for promotion to the post of Forester.
Provided that such a person shall not be entitled to claim seniority over those persons who have been promoted before he becomes eligible for promotion on account of their having passed the examination earlier than him notwithstanding that he was senior to the persons so promoted in the cadre from which promotion was given.
8. A Guard who passes the examination within the specified period and in specified chances shall on his promotion to the post of Forester be assigned seniority in Forester Cadre over a person, if any, who although being junior to him in the cadre of Forester may have been promoted to the higher post earlier by reason of his having passed the examination earlier.
9. The Institute shall held the examination held twice in a year ordinarily in the months of May and November.
10. The syllabus for the examination shall be as specified in Appendix A.
11.(1) A person who desires to appear at the examination under these rules shall send his application for enlisting his name as a candidate for such examination to the Institution through the Principal Chief Conservator of Forest, Gujarat State, Gandhinagar in the from as prescribed in Appendix B at least forty days before the date of commencement of the examination. The applications shall be scrutinized by the Head of the office where the applicant is appointed and that office shall also ensure about the eligibility for appearing at the examination. (2) If the applicant subsequently decides not to appear at the examination, he shall give intimation thereof to the Institution through the Principal Page 28 of 36 HC-NIC Page 28 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT Chief Conservator of Forest, Gujarat State, Gandhinagar at least thirty days before the date of the commencement of the examination. In the event of any person failing to appear at the examination after having enlisted his name as a candidate for appearing threat but without intimating as aforesaid, he shall be deemed to have lost chance to pass the examination;
Provided that the Principal Chief Conservator of Forests, Gujarat State, Gandhinagar may condone the failure on the part of any person to give intimation as aforesaid and the consequences arising therefrom, if it is satisfied that the person had failed to give such intimation within time for reasons beyond his control.
Provided further that the representation, if any, against loss of chance shall be made to the State Government through the Principal Chief Conservator of Forests, Gujarat State, Gandhinagar who shall forward it to the Government with his remarks.
12.(1) The standard for passing the examination shall be fifty percent of the total marks assigned to each paper.
(2) The candidate shall be allowed to answer the papers of all the subjects with the help of books.
Explanation. With books means bare Act, rules and text without commentaries or case laws and the manual issued by the Government under the Act.
(3) A candidate who has failed but has secured sixty percent or more marks in any one or more papers shall be exempted from appearing in those papers at the subsequent examination.
13. A candidate who secure eighty percent or more aggregate marks in the examination shall be paid cash amount as an incentive as determined by the Government.
14. The intimation regarding place and programs of the examination shall be communicated by the institution to the candidates.
15. The Institute shall publish the result of the examination in the Gujarat Government Gazette."
38 It is well settled that the power to frame rules to regulate the conditions of service under the proviso to Article 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective Page 29 of 36 HC-NIC Page 29 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT effect. It is equally well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is, however, subject to a well recognized principle with the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Article 309 which affects or impairs vested rights. Therefore, it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy with the test of Articles 14 and 16(1) of the Constitution.
(See : T.R. Kapur vs. State of Haryana, [AIR 1987 SC 415]) 39 In the case in hand, none of the petitioners of the Special Civil Application No.6624 of 2014 have been promoted as Foresters, and they are sought to be reverted to the posts of Beat Guards. In the present case, they are seeking promotion, but the submission is that they should Page 30 of 36 HC-NIC Page 30 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT be considered for promotion without insisting for clearance of the departmental examination.
40 Mr. Raval very strongly relied upon the decision of the Supreme Court in the case of T.R. Kapur (supra). In my view, this decision is, of no assistance to Mr. Raval in support of his arguments. This very decision of the Supreme Court in T.R. Kapur (supra) has been considered by the Supreme Court in the case of K. Jagdeesan vs. Union of India and others [1990 (2) SCC 228]. I may quote the observations made by the Supreme Court in paras 5 and 6 as under:
"5. Strong reliance was placed by the learned counsel for the appellant on the decision of this Court in T. R. Kapur v. State of Haryana where it was held that right to be considered for promotion is a condition of service. This decision is, however, of no assistance to the learned counsel in support of his argument because the Bench which rendered the said decision has stated as follows: (SCC p. 595, para 16) "It is well settled that the power to frame rules to. regulate the conditions of service under the proviso to Art. 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect. It is equally well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chance of promotion may not be."
It was further held that: "an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively". It was, however, clarified that: "unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled." Page 31 of 36 HC-NIC Page 31 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT
6. It is only in this sense, that is, as set out in the immediately preceding paragraph that the view has been taken that the rules cannot be retrospective. The ratio of this decision is not applicable to the case before us as there is no question of reverting the appellant. Again, it has been held by a Bench comprising three learned Judges of this Court, in State of Maharashtra v. Chandrakant Anant Kulkarni, (1981) 4 SCC 130: (AIR 1981 SC 1990) (at paragraph 16, page 141 (of SCC)) (at p. 1997 of AIR) of the said report), that mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the condition of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. It was also held there that mere passing of the departmental examination conferred no right on the concerned S.T. Inspectors of Bombay to promotion. They merely became eligible for promotion. They had to be brought on to a select list, not merely on the length of service but on the basis of meritcumseniority principle." 41 I am of the view that no retrospective effect has been given to the said amended rules. It is not argued that the petitioners have been reverted from the posts which they occupied on the ground of any lack of any qualification. The only fact is that their chances of promotions, or their rights to be considered for promotions to the posts of Foresters are adversely affected. This cannot be regarded as retrospective effect being given to the amendment of the rules carried out by the impugned Notification, and the challenge to the said Notification on that ground must fail.
42 A Constitution Bench of the Supreme Court in the case of Triloki Nath Khosa (supra) held as under:
"22. An argument which found favour with Mufti Bahauddin J., one of the learned Judges of the Letters Patent Bench of the High Court,and which was repeated before us is that the "retrospective'' application of the impugned rules is violative of Arts. 14 and 16 of the Constitution. It is difficult to appreciate this argument and impossible to Page 32 of 36 HC-NIC Page 32 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT accept it. It is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes. undoubtedly operates on those who entered service before the framing of the rule but it operates in future, in the sense that it governs the future right of promotion of those who are already in service. The impugned rules do not recall a promotion already made or reduce a payscale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a considerations suffers from a discriminatory vice is another matter which we will presently consider but surely, the rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity be extending its arms over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have foundered on the rock of retroactivity. But such is not the implications of service rules nor is it their true description to say that because they affect existing employees they are retrospective. It is well settled that though employment under the Government like that under any other master may have a contractual origin, the Government servant acquires a 'status' on appointment to his office. As a result, his rights and obligations are liable to be determined under statutory or constitutional authority which, for its exercise, requires no reciprocal consent. The Government can alter the terms and conditions of its employees unilaterally and though in modern times consensus in matters relating to public services is often attempted to be achieved consent is not a pre condition of the validity of rules of service, the contractual origin of the service notwithstanding."
43 In my view, the observations of the Supreme Court referred to above, clinches the issue and no more case law is necessary to be discussed in the matter.
44 Triloki Nath Khosa (supra) has been considered by a subsequent Constitution Bench decision of the Supreme Court in the case of the Chairman, Railway Board (supra). After quoting para 16 of the said judgment, the Supreme Court observed in para 20 as under: Page 33 of 36
HC-NIC Page 33 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT "20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively."
45 Ms. Manisha Lavkumar, the learned Government Pleader placed on record certain information which is as under:
"(1) a policy of passing Departmental Examination by Forest Guard as per Departmental Examination Rules, 2009 shall prevail.
(2) The gradation list of the Beat Guard is maintained at the Zonal level.
There are 4 Zones viz. Junagadh, Gandhinagar, Vadodara, Surat. The gradation list of 4 Zones as on 01/04/2015 is prepared. The information regarding available post in Forester cadre by virtue of promotion is decided and that number is 603.
(3) Select Committee for the preparation of select list as per the vacant post of Forester in each Zone has been constituted and select list as per the gradation list and numbers of vacancies available in each Zone has been prepared.
(4) As per the Zonal level available vacancy and the seniority list following is the position.
Sr. Name of Nos. of To be filled by
Zone vacancy
Those who Those who are entitled in
have their order of seniority but
passed DE have not passed
Departmental Examination.
1 Junagadh 178 25 153
2 Gandhinagar 174 24 150
3 Vadodara 132 21 111
4 Surat 119 18 101
Total: 603 88 515
(5) Out of total 22 petitioners of the petition number 312/2015, only 4 petitioners are being considered in the select list against the 174 Zonal vacancy."
46 My conclusion is as under:
Page 34 of 36
HC-NIC Page 34 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT
(a) None of the petitioners can assert as a matter of right that they should be promoted to the posts of Foresters without insisting for passing the departmental examination.
(b) The amended rule, which provides for clearing or passing of the departmental examination, is in no manner illegal or arbitrary.
(c) In the facts of the case, none of the vested rights or accrued rights could be said to have been taken away by the amended rules much to the prejudice of the Beat Guards seeking promotion.
(d) A rule, which operates in futuro, so as to govern future rights of those already in service, cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution of India.
(e) All those Beat Guards, who have cleared the departmental examination in the prescribed period and chances, may be considered for being promoted to the posts of Foresters. All those Beat Guards who have not been able to clear the departmental examination, shall be given an opportunity to appear in the same, and if they are able to clear, then they may also be considered for being promoted to the posts of Foresters.
(f) All those Beat Guards, who have been promoted to the posts of Page 35 of 36 HC-NIC Page 35 of 36 Created On Wed Dec 02 02:00:22 IST 2015 C/SCA/9880/2015 CAV JUDGMENT Foresters without clearance of the departmental examination, shall be reverted to their original posts at the earliest.
47 With the above observations and directions, all the writ applications are disposed of.
48 The Civil Applications, if any, stand disposed of. Rule issued in the Special Civil Application No.6624 of 2014 stands discharged. The ad interim relief granted earlier stands vacated forthwith.
(J.B.PARDIWALA, J.) chandresh Page 36 of 36 HC-NIC Page 36 of 36 Created On Wed Dec 02 02:00:22 IST 2015