Central Administrative Tribunal - Chandigarh
Jitendera Kumar Ranjan vs M/O Environment And Forests on 25 February, 2022
1
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Hearing by Video Conferencing
O.A. No.060/651/2020 and
O.A. No.060/584/2021
Reserved on: 15.12.2021
Pronounced on:25.02.2022
HON'BLE SH. SURESH KUMAR MONGA, MEMBER (J)
(On video conference from Central Administrative Tribunal, Chandigarh
Bench, Chandigarh).
HON'BLE SH. RAKESH KUMAR GUPTA, MEMBER (A)
(On video conference from Central Administrative Tribunal,
Bangalore Bench, Bangalore).
---
(i) O.A. No.060/651/2020
1. Sh. Prabhu Nath Shahi son of Sh. Kashi Nath Shahi, age
48 years, presently working as Forester.
2. Sh. Ajay Kumar son of Sh. Krishnadeo Singh, age 51
years, presently working as Forester.
3. Sh. Jitendera Kumar Ranjan son of late Sh. Mathura Rai,
age 49 year, presently working as Forester.
4. Sh. Sultan Singh son of Sh. Sona Ram, age 41 years,
presently working as Forester.
5. Sh. Ram Chander Kumar son of Sh. Neti Mahato, age 53
years, presently working as Forest Guard.
6. Sh. Rajinder Singh son of Sh. Mam Chand, age 46 years,
presently working as Forest Guard.
7. Sh. Ashok Kumar son of Sh. Zulfi Ram, age 47 years,
presently working as Forest Guard.
All the applicants are working in the office of CCF,
Paryavaran Bhawan, IInd Floor, Section-19 B, Madhya
Marg, Chandigarh-160019.
...Applicants
(BY ADVOCATE: Sh. D.R. Sharma)
2
VERSUS
1. U.T. Chandigarh through the Secretary, Department of
Forests and Wildlife, U.T. Secretariat, Sector-9,
Chandigarh-160009.
2. The Chief Conservator of Forests, Sector 19, Chandigarh-
160019.
...Respondents.
(BY ADVOCATE: Sh. G.S. Sandhu)
(ii) O.A. No.060/584/2021
1. Sh. Jitendera Kumar Ranjan son of late Sh. Mathura Rai,
age 49 year, presently working as Forester.
2. Sh. Ajay Kumar son of Sh. Krishnadeo Singh, age 51
years, presently working as Forester.
3. Sh. Sultan Singh son of Sh. Sona Ram, age 41 years,
presently working as Forester.
4. Sh. Prabhu Nath Shahi son of Sh. Kashi Nath Sahi, age 48
years, presently working as Forester.
5. Sh. Ashok Kumar son of Sh. Zulfi Ram, age 47 years,
presently working as Forest Guard.
All the applicants are working in the office of CCF,
Paryavaran Bhawan, IInd Floor, Section-19 B, Madhya
Marg, Chandigarh-160019.
...Applicants
(BY ADVOCATE: Sh. D.R. Sharma)
VERSUS
1. U.T. Chandigarh through the Secretary, Department of
Forests and Wildlife, U.T. Secretariat, Sector-9,
Chandigarh-160009.
2. The Chief Conservator of Forests, Sector 19, Chandigarh-
160019.
...Respondents.
(BY ADVOCATE: Sh. Naman Jain)
3
ORDER
Per: SURESH KUMAR MONGA, MEMBER (J):
With the consent of learned counsels for the parties, the Original Applications No.060/651/2020 and 060/584/2021 are taken up together for disposal as a common question of law and facts is involved in these cases.
ORIGINAL APPLICATION NO.060/651/2020
2. Pleaded case of the applicants herein is that they are the Ex-servicemen discharged from the Armed Forces after rendering 17 to 26 years of services. Pursuant to advertisements issued by Chief Conservator of Forests, Chandigarh (Respondent No.2 herein), they were appointed as Foresters/Forest Guards on 14.01.2014, 06.01.2014, 27.03.2015, 01.05.2015, 14.06.2013, 29.07.2013 and 13.05.2013 respectively. They were issued appointment letters on contract basis which was extended from time to time. It has further been averred that the respondents had issued the advertisements as per the statutory recruitment rules known as the "Forest Department Group „C‟ Posts (Executive Section) Recruitment Rules, 2001 (hereinafter referred to as the "2001 Rules"). It is the applicants‟ case that as per these Rules, to hold the post of a Forester, a candidate 4 should have passed 10+2 examination or its equivalent examination with 55% marks from a recognized State Education Board or Institute with Physics, Chemistry, Mathematics, Biology Agriculture or second division matriculate with diploma in Surveying/Draughtsman (Civil/Civil Engineering) obtained from a recognized Institute with 55% marks.
3. Similarly for the post of Forest Guard, the method of recruitment has been prescribed in column 11 of the „2001 Rules‟, which stipulates that 90% posts can be filled up by direct appointment and 10% by way of promotion. It has further been averred that the posts against which the applicants were appointed as Foresters/Forest Guards, were reserved for ex-serviceman category and, therefore, they were appointed against those posts. The contract period of the applicants has been extended uptill 31.12.2020. It has further been averred that at the time of applicants‟ initial appointments, the „2001 Rules‟ were operative. It has also been pointed out that by way of „2001 Rules‟, The Punjab Forest Subordinate Services (Executive) Rules, 1944 (for short "1944 Rules") were repealed. The validity of „2001 Rules‟ became the subject matter of challenge before this 5 Tribunal in O.A. No.679/2006 which was decided on 02.07.2007 by holding that „2001 Rules‟ have no sanctity in the eye of law. The said judgment is still existing and has not been set aside and, therefore, the „1944 Rules‟ still apply in the applicants‟ case and their appointments having been made against sanctioned posts in consonance with the statutory Rules, the same cannot be termed as contractual appointments. It has still further been stated that the applicants being ex-servicemen, working as Foresters and Forest Guards for the last more than 5 to 7 years, have been assigned all the duties as are being performed by regular appointees. In fact, despite the advertisement having been issued for making regular appointments in the year 2012-13, no action was taken and there is no order to cancel the said advertisements. By making all these assertions, the applicants, in the present Original Application, have prayed for quashing of an order dated 05.02.2020 whereby their representations have been rejected by the respondents. The applicants have also prayed for grant of a declaration to the effect that the word „contract‟ mentioned in their appointment letters is misnomer and they be declared to have been appointed as Foresters/Forest Guards as per „1944 Rules‟ from their initial dates of appointment. They have further 6 made a prayer for quashing of the Forest Department Group "C" (Executive Section) Recruitment Rules, 2020. As an alternative, it has also been prayed that their services be regularized in terms of guidelines dated 18.03.2011 and 17.11.2011.
4. The respondents by way of filing their joint written statement have opposed the applicants‟ claim as set up in the original application. It has been pleaded that to cater the need of having employees for protection of wildlife and forest, the department had made an attempt in the year 2013 to fill up the posts on regular basis but the recruitment process could not be completed due to some unforeseen reasons and looking towards the pressing need, a decision was taken to fill up the posts purely on contract basis as a stop gap arrangement. The applicants No.1 to 4 were appointed as Foresters during different periods from 14.01.2014 to 01.05.2015 and the applicants No.5 to 7 were appointed as Forest Guards between the period ranging from 14.06.2013 to 29.07.2013 purely on contract basis. Initially the contract of each applicant was for a period of one year and later on the same was extended on year to year basis. While referring to clause 7 of the appointment letters, the respondents have 7 stated that offer of appointment and service rendered under the department will not bestow upon the applicants any claim for regular appointment. The applicants have willingly agreed to the terms and conditions of the offer of appointment and they cannot be allowed to lay a challenge to the said clause. The department has now advertised 14 posts of Forest Guard and 6 posts of Forester on regular basis as per the Recruitment Rules after resolving innumerable queries of different departments. They have received 38,000 applications from the candidates aspiring for appointment on regular basis. The future of these 38,000 candidates, who have filled up the application forms, is at stake as there is huge burden on the State exchequer as well as the expenditure incurred herein to the tune of Rs.1,52,00,000/- will be in vain in case the examination is not conducted as per the schedule. The process of preparing the admit cards and to conduct the examination is already in motion and thus not to conduct the examination to suit the convenience of the applicants will set a bad precedent. The applicants, if eligible seem to be afraid of competing with other eligible candidates and, therefore, they want a direction from this Tribunal to regularize their services without providing any opportunity to other eligible candidates to compete. The declaration as 8 prayed for by the applicants, if agreed to, will amount to their back door entry in the public service. It has further been averred that there is no rule, including the „1944 Rules‟ according to which a contractual employee can be regularized. With all these assertions, the respondents have prayed for dismissal of the original application.
5. The applicants by way of filing their replication, apart from reiterating the facts already pleaded in the original application, have further stated that their appointments not being contrary to the rules and they having been appointed by way of a positive act of selection, are entitled to be declared as regular in view of a judgment rendered by this Tribunal in OA No.93-CH-2009 DR. ANJALI GUPTA AND OTHERS VS. CHANDIGARH ADMINISTRATION AND OTHERS decided on 17.08.2010, which has further been affirmed by the Hon‟ble High Court of Punjab and Haryana vide its judgment dated 21.01.2019 passed in CWP No.22055 of 2010.
ORIGINAL APPLICATION NO.584/2021
6. During pendency of the original application No.060/651/2020, the respondents issued letters dated 05.04.2021 and 27.04.2021 addressed to Jitendera Kumar, 9 Sultan Singh, Ashok Kumar, Ram Chander Kumar and Rajinder Singh extending their contracts uptill 30.09.2021 and also directed them to execute the requisite agreements within a period of three working days. The applicants No. 1, 2, 3, 4 and 7 in Original Application No.060/651/2020 feeling aggrieved by the direction to execute the fresh agreements have filed the Original Application No.060/584/2021 stating therein that they are working against the sanctioned posts and the action of the respondents asking them to execute the fresh agreements is not sustainable and the practice adopted by the respondents needs to be deprecated as their appointment was by way of a positive act of selection as per the Rules and the matter with regard to regularization of their services is pending consideration before this Tribunal. A prayer has thus been made to quash the communications dated 05.04.2021 and 27.04.2021 (Annexures A-1 and A-2) asking the applicants to enter into fresh agreements time and again.
7. Prayer made in this original application has also been opposed by the respondents by way of filing a joint written statement wherein it has been stated that the applicants have not exhausted their alternative remedies which, inter-alia, 10 includes arbitration provided in Clause 13 of their appointment letters. They have not come to this Tribunal with clean hands as their work and conduct was not found satisfactory. They have been found absent from duties despite several warnings. It has been stated that there is no work load available for them, as they are just attached with the Block Officials for routine work and they do not have any legal power to book or register any case or offence under the law governing the Forest and Wildlife. No significant work was being carried out by the applicants as they have not undergone any formal or technical training. The advertisement was issued to meet a particular temporary contingency and for a prescribed period and thus their appointments can only be described as stop-gap arrangement. They were engaged as contractual employees merely as stop-gap arrangement and were attached with the Block Officials for routine forestry work but limited to watch and ward duties. Many complaints were received against them and their performance was found to be unsatisfactory. Further extension was given to them from time to time as the regular recruitment on the post was getting delayed. They are duty bound to sign the agreement as prescribed by the department of Audit. With all these assertions, the 11 respondents have prayed for dismissal of this original application as well.
8. Heard learned counsels for the parties.
9. Sh. D.R. Sharma, learned counsel for the applicants submitted that the applicants had submitted their applications in response to advertisements duly issued by the respondents for appointments to the post of Forester and Forest Guard. The said advertisements were issued in terms of the statutory recruitment rules and after following the due selection process, their appointments were made on the respective posts. While expanding his arguments further, learned counsel submitted that since the respondents have followed the due process of recruitment as prescribed in the statutory rules, therefore, insertion of a clause regarding contract in their appointment letter was wholly uncalled for and the same cannot be sustained in view of the law laid down in Dr. ANJALI GUPTA (SUPRA), GUNEETA CHADHA VS. UNION OF INDIA 2007(1)SCT 1026 and SUMANGAL ROY VS. UNION OF INDIA Civil Writ Petition No. 10319-CAT-2001 decided on 06.02.2007 by the Hon‟ble High Court of Punjab and Haryana. Learned counsel thus, submitted that in view of the principles laid down by way of these judicial pronouncements, a 12 declaration is required to be issued to the effect that the word "contract" mentioned in the applicants‟ appointment letters is misnomer.
10. Sh. D.R. Sharma, learned counsel for the applicants, however, did not press the prayer made for quashing of the recruitment rules of 2020 and the alternative prayer to consider the applicants‟ case for regularization of their services.
11. On the other hand, Sh. G.S. Sandhu, learned counsel for the respondents in Original Application No.060/651/2020 submitted that the basic appointments of the applicants were not in accordance with the recruitment rules and, therefore, no such declaration can be granted. The respondents had made a stop-gap arrangement because regular process of recruitment could not be initiated due to certain unforeseen circumstances. Learned counsel further submitted that now the respondents have completed the whole process for making recruitment on regular basis and even the candidates selected pursuant to said process have already joined the services. Thus, the applicants cannot be allowed to continue in the services any more. 13
12. Toeing almost the same line of arguments, Sh. Naman Jain, learned counsel for the respondents in Original Application No.060/584/2021 submitted that adherence to rule of equality in public employment is a basic feature of the Constitutional scheme. Since the applicants‟ basic appointment on contract basis was contrary to constitutional scheme, therefore, they cannot be allowed to continue in service any more. Shri Jain further submitted that pursuant to process of regular recruitment, the candidates have already joined the services in the respondent department. In order to support his contentions, learned counsel placed reliance upon a judgment in the case of SHILPA JINDAL VS. CHANDIGARH ADMINISTRATION, CHANDIGARH 2016 (3) SCT 486.
13. We have considered the rival contentions of learned counsels for the parties and have also perused the records of the case.
14. During the course of arguments on 01.10.2021, Sh. G.S. Sandhu, learned counsel for the respondents had submitted that in the case of the applicants, neither any written test nor the physical test was conducted and only on the basis of interview, they were selected as Forest 14 Guards/Foresters. Since, the complete selection process was not followed, therefore, selection/appointment of the applicants is invalid right from its inception. It was the statement of learned counsel for the respondents that Department could not complete the regular selection process due to non availability of experienced ministerial staff in order to scrutinize a large number of applications received from the candidates aspiring for the selections.
15. Since the aforesaid statement of fact did not find mention in the pleadings set up by the respondents, therefore, it was deemed appropriate to direct the Chief Conservator of Forests, Chandigarh, to file an affidavit in order to clarify the situation which emerged on the basis of the arguments raised on behalf of the respondents. Accordingly, the following order was passed on 01.10.2021 which is reproduced herein below:-
"During the course of his arguments, Sh. G.S. Sandhu, learned counsel for the respondents submitted that in the case in hand neither the written test nor any physical test for selection of the applicants was conducted and only on the basis of an interview, they were selected and recruited as Forest Guards / Foresters.
Learned counsel further submitted that the respondent department could not follow the complete selection process because of the non availability of experienced ministerial staff at the relevant point of time in order to scrutinize a large number of applications received from 15 the candidates aspiring for selection to the said posts. Since, the complete selection process was not followed, therefore, the selection and appointments of the applicants herein are invalid right from its inception.
The aforesaid statement of facts, which has now been made by learned counsel for the respondents, does not find mention in the pleadings.
In this view of the matter, we deem it appropriate to direct the Chief Conservator of Forests, Chandigarh Administration, Chandigarh to file an affidavit in order to clarify the situation which has now emerged on the basis of arguments raised on behalf of the respondents.
List on 08.10.2021.
Let the requisite affidavit be filed by the Chief Conservator of Forests, Chandigarh Administration, Chandigarh a day prior to the date fixed with an advance copy to learned counsel for the applicants."
16. Pursuant to aforesaid order dated 1.10.2021, the respondents have placed on record an affidavit dated 5.10.2021 of Shri Debendra Dalai, IFS, Chief Conservator of Forests, Chandigarh stating therein that the department was facing acute shortage of experienced field staff. The process of regular recruitment involves conduct of written test, physical test followed by oral interview of candidates as per laid down criteria. Since the regular appointments could not be done due to administrative reasons and due to paucity of forest staff, it was proposed that vacant posts of Foresters as well as Forest Guards may be filled up on contract basis for one year or till regular recruitment is made, whichever is earlier, purely as a stop gap 16 arrangement. It was further deposed in the said affidavit that since Forester and Forest Guard are trained officials and their training period is of 6 months duration on the subjects such as Silviculture, Wildlife Management, Botany and Surveying etc, therefore, filling up the said posts on contract basis from normal 12th passed students was not more useful and accordingly, a decision was taken to engage ex-servicemen on contract basis through Walk-in- Interview basis. Walk-in-Interview amongst ex-servicemen was conducted only looking at the emergent need of acute shortage of field staff in the department. At the same time, the effort was also made for regular recruitment which due to administrative reasons could not materialize during the period and, therefore, a fresh advertisement was issued and thereafter regular appointments have been made after following the laid down procedure. It has further been deposed that no written test or physical examination was conducted while engaging the applicants herein on contract basis and on the basis of oral interview only, they were selected for their respective jobs on contract basis.
17. Since the aforesaid affidavit dated 5.10.2021 filed by Shri Debendra Dalai, IFS, Chief Conservator of 17 Forests, Chandigarh did not inspire confidence, therefore, on 28.10.2021, the matter was adjourned to 15.11.2021 enabling Shri G.S. Sandhu, learned counsel for the respondents to produce the records in original. However, on 3rd December, 2021, part of the record was produced by learned counsel for the respondents. After hearing the arguments at substantial length, the matter was again adjourned to 6.12.2021 enabling the learned counsel for the respondents to produce the complete records. On 6th December, 2021, Dr. Abdul Qayum, Deputy Conservator of Forests, Chandigarh, produced the records in original.
18. During the course of arguments on 8.12.2021, learned counsel for the respondents had submitted that while making recruitment of applicants herein on contract basis, the officer-in-charge at the relevant time had committed a mistake and eventually the same had resulted into an illegality. Since a categorical stand was maintained by the respondents that the officer in-charge at the relevant time had committed a mistake by making the appointments of the applicants herein on contract basis as the rules were not followed, therefore, a further direction was issued to the Chief Conservator of Forests, Chandigarh to file an additional affidavit to disclose the 18 name of the officer concerned who committed such a mistake while making recruitment of the applicants herein which had ultimately resulted into an illegality. Order dated 8.12.2021 is reproduced here as under:-
"During the course of hearing on 01.10.2021, Sh. G.S. Sandhu, learned counsel for the respondents had submitted that in the case in hand neither the written test nor any physical test for selection of the applicants was conducted and only on the basis of an interview, they were selected and recruited as Forest Guards / Foresters. The respondent department could not follow the complete selection process because of the non availability of experienced ministerial staff at the relevant point of time in order to scrutinize a large number of applications received from the candidates aspiring for selection to the said posts and, therefore, the selections and appointments of the applicants herein are invalid right from its inception.
Since the said statement of fact made by learned counsel for the respondents did not find mention in the written statement, therefore, the Chief Conservator of Forests, Chandigarh Administration, Chandigarh was directed to file an affidavit in order to clarify the situation emerged during the course of arguments.
Pursuant thereto an additional affidavit dated 05.10.2021 has been filed by Sh. Debendra Dalai, IFS, Chief Conservator of Forests, Chandigarh Administration, Chandigarh stating therein that the department was facing acute shortage of experienced field staff. The process of regular recruitment involves conduct of written test, physical test followed by oral interview of candidates. Since the regular appointments could not be made due to administrative reasons and due to paucity of forest staff, it was proposed that vacant posts may be filled up on contract basis for one year or till the regular recruitment is made whichever is earlier. Since the foresters and forest guards are trained officials and their training period is of 6 months duration on the subjects such as Silviculture, Wildlife Management, Botany and Surveying etc., therefore, filing up the said posts on contract basis from normal 12th passed students was not more useful and, accordingly, a decision was taken to engage ex-servicemen on contract basis through 'Walk in Interview'. It has further been deposed in the said affidavit that no written test or physical examination was conducted while engaging ex-servicemen on contract basis and on the basis of oral interview only, the ex- servicemen (applicants herein) were selected and appointed as Foresters / Forest Guards.
Today, during the course of hearing, learned counsel for the respondents submitted that while making the recruitment of applicants herein on contract basis, the officer in-charge at that 19 time had committed a mistake and eventually the same has resulted into an illegality.
It has also been brought to our notice by learned counsel for the applicants that though the hearing in this case had commenced and the matter was got adjourned by the respondents in order to place on record an additional affidavit, still by misstating the facts before the Hon'ble High Court of Punjab and Haryana, Civil Writ Petition No. 22090/2021 was filed stating therein that this Tribunal has failed to conclude the hearing.
Learned counsel for the applicants further submitted that an expression was given to the Hon'ble High Court that the Tribunal had been adjourning the matter in routine.
Confronted with this situation, learned counsel for the respondents assisted by Dr. Abdul Qayum, Divisional Forest Officer, stated that for such a misstatement made before the Hon'ble High Court, the Chief Conservator of Forests, Chandigarh Administration, Chandigarh undertakes to submit an affidavit of apology before this Tribunal.
Adjourned to 13.12.2021 at the request of learned counsel for the respondents.
Since a categoric stand has been maintained by the respondents that the officer in-charge at the relevant time had committed a mistake by making the appointments of the applicants herein on contract basis as the rules were not followed, therefore, a further direction is issued to the Chief Conservator of Forests, Chandigarh Administration, Chandigarh to state in the aforesaid affidavit as to what action has been proposed against the officer concerned who committed a mistake which eventually has resulted into an illegality."
19. Pursuant to our aforesaid directions issued on 8.12.2021, an additional affidavit dated 13.12.2021 was placed on record by the respondents wherein it was stated that at the relevant point of time, there was an acute shortage of field functionaries and department had no other option but to make the stop gap and temporary arrangement expeditiously. Thus, contractual appointment was made from amongst only Ex-servicemen and ex-Forest Guards to narrow down the number of applications so that expeditious action 20 can be taken to fill up these posts to protect and conserve the forests. Had the new selection been opened to any candidate, the department could have received huge number of applications again and the very purpose of making a fast and temporary stop gap arrangement would not have been achieved as the department could have faced the similar problem of handling huge number of applications for the regular recruitment.
20. Since the respondents did not disclose the name of the Officer-in-Charge, who made the illegal appointments and even failed to divulge as to what action was proposed against such an officer, therefore, during the course of arguments Dr. Abdul Qayum, Deputy Conservator of Forests, Chandigarh, who was present in person before this Tribunal was asked to disclose the name of the said officer in charge. However, he showed his inability to disclose his name by saying that he has his own reservations. It appears that while making such a statement, Dr. Qayum was totally unmindful of the fact that he was called to assist this Tribunal to arrive at a just conclusion and was required to state the true facts as per the record available in his hand. After exhibition of such a conduct of an officer, no court would have restrained itself from commenting upon adversely and we would have also 21 commented in the same manner, had we not been aware that in the given facts and circumstances, the higher echelons are behind the scene. In any case, it is reprehensible and totally unworthy of the spokesman of the official respondents and most unflattering to official respondents on whose behalf he spoke.
21. Faced with the situation, we ourselves entered into the records in order to find out as to whether the applicants‟ appointments on contract basis were made in accordance with the rules or not.
22. A perusal of the record revealed that the respondents had issued an advertisement dated 5.5.2012 to fill up 4 (un-reserved), 2 (reserved for SC) and 1 (reserved for OBC) posts of Forest Guard laying down therein the following eligibility criteria :-
(i)Educational 10+2 examination passed or qualification its equivalent with 55% marks from recognized State Education board or institute or second division matriculate with diploma in surveying / draughtsman (Civil)/Civil Engineering obtained from a recognized institute with 50% marks.
(ii)Age 18-25 years as on last date of receipt of application.
Upper age limit is relaxable for SC/ST, OBC Deptt. Ex-
servicemen candidates as per Govt. of India, instruction /order in force.22
23. The said advertisement was issued in consonance with the „2001 Rules‟ which were in vogue at the relevant time. In terms of Clause 5 of the advertisement, complete applications in prescribed format were invited from the eligible candidates uptil 11.6.2012. A complete process of selection was enumerated in clause 6 which is reproduced here as under:-
"a) Written test : The standard of examination will be matric level.
(i) English-Essay, letter and grammar.
(ii) Mathematics-Simple Arithmetic, Geometry and Algebra.
b) Physical Test: Only successful
candidates in order of
merit based on written
examination shall be
called for Physical test.
c) Interview: Only successful
candidates in order of
merit based on written
examination and have
passed physical test
shall be called for
interview by DSC.
5. Final select list will be prepared in the order of merit on the basis of aggregate marks obtained by the candidate in the written test, interview and educational qualification prescribed for the posts".
24. Pursuant to aforesaid advertisement, the respondents had received 19793 applications from candidates for the post of Forest Guards. On scrutiny, out of those applications, 12073 candidates were found eligible and rest of 23 the candidates were rendered ineligible to participate in the process of selection. Apart from issuance of the aforesaid advertisement, the respondent department had also forwarded a requisition to Employment Exchange from where the names of 85 candidates were sponsored. The whole exercise was undertaken by the respondents on 8.11.2012 and a proposal was submitted to take the following action:-
1. Physical Efficiency Test and Written Test to be conducted.
For this eligible candidates are to be called through issuing letter after deciding the date.
2. Letter to Senior Superintendent of Police, UT, Chandigarh to constitute a Committee for conducting a Physical Efficiency Test and facilitate and conduct the Physical Efficiency Test of candidates in Police Line, Sector-26, Chandigarh and forward the list of qualified / disqualified candidates to this office and intimate the date and time of the Efficiency Test.
25. A Committee comprising of Inspector of Police (to be nominated by Police Department) as Member; Shri R.K. Sharma, Range Officer, as the Chairman; Sub Inspector of Police (OBC category), as a Member; Sub Inspector of Police (Women) as a Member; Representative of SC Category (to be nominated by the Forest Department) as a Member, was constituted as is revealed from the noting recorded on 21.11.2012. The Roster Register of the Department for all the reserve posts was also got vetted from the Social Welfare Department. It appears from the record that on 21.11.2012 itself the respondent department had issued a communication requesting therein the Inspector General of 24 Police, Union Territory, Chandigarh to provide assistance for conducting physical efficiency test for making recruitment to the post of Forest Guard. The said communication was replied by the Inspector General of Police, U.T. Chandigarh by way of a letter dated 14.1.2013 expressing his inability to conduct the physical efficiency test. However, the Inspector General of Police suggested that for the purpose, the Forest Department may take up the matter with the Central Para Military Forces. The record further revealed that from January 2013 to February 2014, nothing tangible came out and on 5.2.2014, the respondent department woke up from a deep slumber and took up the matter again with the Inspector General of Police, U.T,. Chandigarh, requesting therein to provide assistance for conducting the physical efficiency test of the candidates. The said communication was also replied by the Inspector General of Police, showing his inability to conduct the physical efficiency test and again the same suggestion was given to take up the matter with the Central Para Military Forces for the purpose.
26. The record produced by Dr. Abdul Qayum, Deputy Conservator of Forest, Chandigarh, nowhere divulges the fact as to what course of action was adopted further by the respondents. It appears that despite a suggestion given by 25 the Inspector General of Police, Chandigarh, the matter was never taken up by the respondent department with the Central Para-Military Forces for conducting the physical efficiency test of the candidates aspiring for selection to the post of Forest Guard.
27. The process for making regular recruitment, pursuant to aforesaid advertisement dated 5.5.2012 was on and yet to be finalized, when in a separate file a proposal was made by the Office Superintendent on 20th February, 2013 stating therein that the vacant posts of Forest Guard may be filled up on contract basis for one year or till the regular recruitment is made, whichever is earlier, from the retired Forest Guards and Ex-servicemen with maximum age limit of 62 years on approved rates of U.T. Administration. The said proposal was finally dealt with at the level of the Deputy Conservator of Forest on 27.2.2013 and the same was presented before the Conservator of Forest-cum-CWLF, being Head of the Department. The note recorded by the Deputy Conservator of Forest on 27.2.2013 is reproduced here as under in verbatim:-
"Hence as proposed by RO (Chd/Nepli) and office, till the regular recruitment of Forest Guard happens, the 10 vacant post of Forest Guards may be filled on contract basis from Ex- Serviceman with maximum age limit of 62 years and retire Forest Guard with maximum age limit of 62 years. Subject to approval the notice may be published accordingly".26
28. After approval of the aforesaid note at the level of the Head of the Department, a notice for Walk-in-Interview was published in „The Tribune‟ on 13.3.2013. The relevant extract of the same is reproduced here as under:-
"WALK-IN-INTERVIEW Applications are invited to fill up the post of Forest Guard (on contract basis) (for Ex- servicemen/Ex-Forest Guard) initially for one year on consolidated contractual amount in Forest & Wildlife Department, Chandigarh Administration having following educational qualification :-
Sr. Name of No. of Age Educational Consolidated No. Post Post Qualification Contractual amount (In Rs.)
1. Forest 10 (for *For Ex- *For Ex- 22,300/-
Guard Ex- servicemen Servicemen:-
serviceme :-Up to 10+2
n/Ex- length of examination
Forest service in passed or its
Guard) Defence equivalent with
Services 55% marks
plus three from a
years in recognized
accordance State Education
with the Board or
instructions Institute or
issued by second division
the Central matriculate with
Govt. diploma in
*For Ex- surveying /
Forest draughtsman
Guard:- (Civil)/Civil
Below 62 Engineering
years as on obtained from a
01.01.2013 recognized
institute with
50% marks.
*For Ex-Forest
Guard:-
Matriculate.
29. Pursuant to aforesaid Walk-in-Interview notice, 88 candidates had appeared for interview before the Selection Committee on 4.4.2013, as is clear from the proceedings of the minutes of the Selection Committee. Thereafter, totally an unprecedented practice was followed as on 9.4.2013, an office 27 note was recorded and a proposal was made that before finalizing the selection of the candidates who were interviewed on 4.4.2013, four more candidates, whose names were later on forwarded by the Zila Sainik Welfare Officer be also interviewed on 25.4.2013.
30. Totally unmindful of the fact whether those four candidates had submitted their applications pursuant to the aforesaid advertisement or not, or some other candidates might have also become eligible in the interregnum, without issuing any public notice, such a recourse was adopted and the interview of those 4 candidates was conducted on 25.4.2013.
31. Such a process of recruitment, in our considered view, cannot stand scrutiny of Articles 14 & 16 of the Indian Constitution.
32. The respondents, totally unmindful about their Constitutional obligation, continued with the process of finalizing the select list and ultimately the selection committee recommended the names of following 10 candidates in order of their merit for appointment to the post of Forest Guard on contract basis :-
S.No. Name & Address
1. Ramphal S/o Sh. Lal Singh, Vill-Kutabpur, PO-Diwal, Teh & Distt. Kaithal, Pin-136027, Haryana
2. Balwinder Singh Cheema, S/o Sh. Balwant Rai, #659, Sector - 28
25, Panchkula, Haryana.
3. Sh. Hardev Singh S/o Sh. Joginder Singh Vill-Bhoewal, PO-
Chananke, Teh-Baba Bakala, Amritsar, Punjab
4. Subhash Chander S/o Sh. Guran Diwaya # 992, Milap Nagar, Distt. Ambala, Pin-134003, Haryana.
5. Krishan Chand Sharma S/o Sh.Kirpa Ram Sharma, Vill-Dol, PO-Gopalpur, Teh-Sarkaghat, Distt. Mandi, Pin-175007, H.P.
6. Mehal Singh S/o Sh. Virsa Singh, Agwar Sidhuan Dharamkot, Distt-Moga, Pin-142042, Punjab.
7. Charanjit Singh S/o Sh. Gurbax Singh, Vill-Rajpura, PO-
Karsan, Via-Sahabjadpur, Distt-Ambala, Pin-134202, Haryana.
8. Satish Kumar S/o Sh. Kanshi Ram, Vill-Bhartgarh PO-
Bharatgarh, Distt. & Teh Ropar (PB)
9. Ashok Kumar S/o Sh. Zulfi Ram, Vill-Plehra, PO-Kohdra, Teh-
Barsar, Distt. Hamirpur, Pin-174311, H.P.
10. Amrik Singh S/o Sh. Gurdev Singh VPO-Mullanpur Garibdass, Teh. Kharar, Distt. SAS Nagar, Pin-140901, Mohali, Punjab.
33. The Committee also recommended the names of 8 more candidates in the waiting list.
34. The candidates namely Balwinder Singh Cheema and Subhash Chander, whose names are depicted at Sr. No. 2 & 4 in the above quoted select list, were selected from amongst the category of retired Forest Guard. They had already retired after attaining the age of superannuation.
35. It requires to be noticed here that prior to promulgation of the Forest Department Group „C‟ posts (Executive Section) Recruitment Rules, 2001, the Punjab Forest Subordinate Services (Executive) Rules, 1944 were in operation and those rules stood repealed by virtue of „2001 Rules‟.
36. The validity of the „2001 Rules‟ became the subject matter of challenge before this Tribunal in the case of 29 Ramesh Gill Vs. Union of India & Others, decided on 2.7.2007 (2008 (1) SLJ 42 CAT) and the „2001 Rules‟ were quashed. However, aggrieved by the said judgment, the Chandigarh Administration preferred Civil Writ Petition No.16356 of 2007 wherein the judgment rendered by this Tribunal was stayed. The said interim order was operative at the time of issuance of the advertisement dated 13.3.2013 and it is still in operation as the writ petition has not yet been decided by the Hon‟ble High Court. Thus, while making recruitment on contract basis, the Department could not have taken a departure from the said Rules. The resultant effect is that „2001 Rules‟ were in operation when the advertisement dated 13.3.2012 through which the applications were invited for "Walk-in-Interview" and the earlier advertisement dated 5.5.2012 in which the process for regular recruitment was initiated.
37. Rule 4 of the „2001 Rules‟ prescribes the method of recruitment, age limit and other qualifications etc. According to said Rule, method of recruitment to the post, age limit and qualification and other modalities connected therewith shall be as specified in column no. 5 to 14 and in the Notes to the said Schedule. Clause 4 of the Schedule annexed to the „2001 Rules‟ prescribes the requisite qualification and the age limit 30 for candidates to be recruited against the post of Forest Guard. According to clause 4, a candidate who holds the qualification of 10+2 examination or its equivalent with 55% marks from a recognized State Education Board or Institute or Second Division matriculate with diploma in surveying / Draughtsman (Civil)/Civil Engineering obtained from a recognized Institute with 50% marks, becomes eligible to man the post of Forest Guard. It has further been stipulated that a candidate between the age of 18 to 25 years (relaxation upto 35 years for the employees of Forest Department and upto 30 years for other Government servants) be considered eligible for the post of Forest Guard.
However, Note 2 as referred to in clause 4 of the Schedule in the column of criteria of age, made a provision for relaxation of age in respect of Ex-servicemen and meritorious sportsmen. The relevant provision is reproduced herein below:-
"© Age limit for Ex-servicemen and meritorious sportsmen in respect of posts reserved for them is as under:-
(i) For Ex-servicemen upto length of service in Defence Services plus three years in accordance with the instructions issued by the Central Government.31
(ii) For meritorious sportsmen upto 30 years in case of General, 33 years in case of OBC and 35 years in case of SC/ST candidates in accordance with the instructions issued by the Central Government.
38. In the case in hand it is not clear from the noting portion of the file that while initiating the process of contractual appointment, how many posts were available in the Ex-servicemen category.
39. In so far as ex-Forest Guards are concerned, it was prescribed that they should be below the age of 62 years as on 1.1.2013. Such a criteria recorded in the notice for Walk-in-Interview was alien to the „2001 Rules‟.
40. Similarly, when we look at the clause of educational qualification in the notice for Walk-in-
Interview, it depicts that for ex-Forest Guard the requisite qualification was prescribed as Matriculation. In „2001 Rules‟, there is no such provision specifying the qualification for Ex-Forest Guard as matriculation. It appears that the respondents while initiating the process of recruitment by way of issuance of a notice for Walk-
in-Interview, had acted as per their whims and fancies 32 only. Such a process of recruitment, in our opinion, being contrary to the provisions of Articles 14 and 16 of the Indian Constitution could not have been initiated.
41. The scope of Articles 14 and 16 of the Constitution has been widened by judicial interpretations to mean not only the right to be not discriminated but also protection of any arbitrary or irrational act of the State. Arbitrariness is an anathema of Rule of equality.
In a democratic set up of Government, the respondents cannot be allowed to lay down arbitrary and capricious standards for the choice of persons, which has actually happened in the case in hand.
42. The respondents proceeded to make recruitment on contract basis when the process of recruitment for making regular appointment was on and without determining the fact as to how many posts meant for Ex-servicemen category were available, the notice for Walk-in-Interview was issued on 13.3.2013.
The eligible candidates were required to submit their applications on or before 28.3.2013 and the interview was scheduled to be held on 4.4.2013. The respondents had conducted the interview of 88 candidates on 4.4.2013. However, later on they received a 33 communication from District Zila Sainik Welfare Officer wherein the names of 4 more candidates were sponsored for whom interview was conducted on 25.4.2013. This is how the respondents have conducted the whole process of selection merely by focusing on choice of persons from the category of ex-servicemen.
43. Though, there is no provision in the „2001 Rules‟ that ex-Forest Guard can also be considered for appointment and that too with lesser qualification than the qualification prescribed in the said Rules. But still the respondents opted to make appointments from amongst the ex-Forest Guards. Arbitrariness in whole of the selection process was writ large. In this view of the matter, in so far as the applicants‟ appointments as Forest Guards made on contract basis are concerned, the same cannot be termed to be in consonance with the „2001 Rules‟. Thus, in our opinion, no such declaration can be given that the word "contractual appointment"
introduced in their appointment letters is misnomer. The principles laid down in the cases of Dr. Gagan Inder Kaur (supra), Guneeta Chadha (supra) and Sumangal Roy (supra) are totally inapplicable in the facts and circumstances of the present case.
34
44. It will not be out of place to mention here that the respondents themselves were aware that the officer in-charge at the relevant time had committed a mistake while making such a selection which ultimately resulted into an illegality but still they kept on extending the terms of appointment of the applicants on year to year basis. They were well aware of the principles laid down by the Hon‟ble High Court of Punjab and Haryana in the case of SHILPA JINDAL VS. CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH, CHANDIGARH, 2016(3) SCT 486, which stipulated as under:-
(i) Any public employment has to be in terms of the Constitutional scheme.
(ii) Adherence to the rule of equality in public employment is a basic feature of our Constitution.
(iii) Regular appointment must be the rule.
(iv) A regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up.
(v) The appointment should be in terms of relevant rules and after a proper competition among the qualified persons. Otherwise, such appointment would not confer any right on the appointee.
(vi) If a contractual appointment is made, the appointment comes to an end at the end of the contract.
The Government or the instrumentality of the State cannot confer any permanency of such employment either by way of regularisation or by way of absorption. 35
(vii) If it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued.
(viii) A temporary employee could not claim to be made permanent on the expiry of his term of appointment.
(ix) Merely because a temporary employee or a casual wage worker is continued for a time being beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength on such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.
(x) Regularisation is not a mode of appointment.
(xi) The Government or the instrumentality of the State cannot regularise the appointment made contrary to the course of selection as envisaged by the relevant rules governing the posts.
(xii) The High Court acting under Article 226 of the Constitution of India should not issue directions for regularisation or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.
(xiii) There should be no further by-passing of the constitutional requirement and regularisation or making permanent those not duly appointed as per the constitutional scheme.
45. The Hon‟ble High Court pronounced the judgment in Shilpa Jindal‟s case (supra) on 29.4.2016 and in view of the principles laid down therein, there was no point with the respondents to extend the contractual appointment of the applicants further on year to year basis. Rather, at that time the process of regular recruitment which was initially initiated in the year 2012, was still on as the same came to be scrapped in the year 36 2018. It appears that the officer in charge at the relevant time was negligent in performance of his duties or was oblivious about the principles to the effect that the rule of law is the fundamental for democracy and if rule of law is not present in any nation, anarchy reins. Nobody in the services, howsoever higher he is ranked, can be permitted to do anything subverting the Constitution of India.
46. Be that as it may, we leave it to the appropriate competent authority to look into the whole issue and take appropriate action in its wisdom and ensure that in future no such actions are repeated by the authorities concerned in the respondent department in the matter of public appointment.
47. The Hon‟ble Supreme Court in the case of SECRETARY, STATE OF KARNATAKA VS. UMA DEVI (3) & ORS., reported as (2006) 4 SCC 1, has held that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he or she is aware of the consequences of the appointment being temporary, casual or contractual in nature. Adherence to 37 the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, a Court has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition amongst qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued.
48. So far as recruitment of the applicants No. 1 to 4 in O.A.No. 060/651/2020 to the post of Forester is concerned, the record reveals that the Department had initiated a proposal on 24.10.2013 stating therein that the total sanctioned strength of the Forester is 12 out of which 7 are vacant (1 is to be vacated on 31.10.2013 due to retirement of Shri Bhupinder Singh, Forester). 38 While noticing the fact that entire process of regular recruitment may take 6 to 12 months, the respondent department opted to make recruitment on contract basis through a notice for "Walk-in-Interview". Accordingly, it was decided by the Department to issue a notice for Walk-in-Interview. An advertisement was issued on 21.11.2013 inviting the applications from ex-servicemen category candidates only and the date for interview was scheduled as 18.12.2013. Pursuant to said notice, the Department had received 12 applications. The note recorded in the file on 19.12.2013 reveals that the Walk- in-Interview was conducted by a Committee constituted in the respondent department on 18.12.2013. Out of 4 eligible candidates, 3 candidates had attended the interview. Accordingly, the Committee selected 3 candidates whose names are reproduced here in below:-
(i) Sh. Pawan Kumar Mishra,
(ii) Sh. Prabhu Nath Shahi
(iii) Sh. Ajay Kumar
49. Out of above 3 candidates, Prabhu Nath Shahi and Ajay Kumar are the applicants before us in O.A.No.060/651/2020 seeking a declaration that the 39 words "contractual appointment" as referred to in their appointment letters are misnomer.
50. The respondents themselves were aware of the fact that the process of regular recruitment shall take atleast 6 to 12 months, but still no such process was initiated after making the aforesaid contractual appointments. Instead, one more public notice dated 24.1.2015 was issued for Walk-in-Interview to fill up 5 posts of Forester from amongst Ex-servicemen category. Pursuant to said advertisement, 62 applications were received by the respondent department uptil 6.2.2015 i.e. the closing date. Out of those 62 applications, 19 candidates were found eligible and 17 could appear in the interview before the Selection Committee on 12.2.2015. The applicants No.3 and 4 namely Jitendra Kumar Ranjan and Sultan Singh, came to be selected in the said recruitment process and were issued appointment letters on contract basis on 12.3.2015 and 15.4.2015 respectively. The period of their contract was further extended from time to time. The respondents were totally unmindful of the principles as laid down by the Hon‟ble High Court in the case of Shilpa Jindal (supra) and allowed the applicants to continue on 40 contract basis, instead of initiating the regular process of appointment.
51. One more glaring fact has come up on record as the respondents themselves while filing an affidavit dated 13.12.2021 have stated that the applicants were never recruited against vacancies reserved for ex- servicemen as provided in the recruitment rules. According to further depositions made in the said affidavit, only one post for Ex-servicemen category was available. In this view of the matter, we are constrained to observe that even the appointments of applicants No. 1 to 4 on the post of Forester were not in accordance with the recruitment rules and, therefore, no such declaration can be granted that the words "contractual appointment" mentioned in their appointment orders were misnomer.
52. It requires to be noticed here that during pendency of the Original Applications, the respondents had initiated the process for recruitment on regular basis for the post of Forester and Forest Guard. They could complete the selection process uptil 1.8.2021. The selected candidates have already been appointed. 41
53. Since the respondents have now completed the regular process of recruitment, therefore, the applicants herein cannot be allowed to continue any further in terms of their appointment letter wherein it was clearly stipulated that their appointment is purely on contract basis for a limited period or till such time the regular appointment is made.
54. In the conspectus of discussions made hereinabove, we do not find any merit in both the Original Applications and those are liable to be dismissed.
55. Accordingly, Original Application No. 060/651/2020 and Original Application No. 060/584/2021 are hereby dismissed.
56. However, there shall be no orders so as to costs.
57. Since both the Original Applications stand dismissed, therefore, nothing survives in pending Miscellaneous Applications and those are disposed of as having been rendered infructuous.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (A) MEMBER (J)
*Kr/hr*