Jammu & Kashmir High Court - Srinagar Bench
Rashid Yahya Naqash & Ors. vs Union Of India And Ors. on 12 February, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
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HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
SWP No. 497/2013
CMP No. 809/2013
Date of Decision: 12.02.2019
Rashid Yahya Naqash & ors.
Vs.
Union of India and Ors.
Coram:
Hon'ble Mr. Justice Rashid Ali Dar, Judge.
Appearing Counsel:
For Petitioner(s): Mr. Jahangir Iqbal Ganai, Sr. Advocate with Mr. Suhail Rashid Bhat, Advocate.
For Respondent(s): M/s Asifa Padroo, AAG, T.M.Shamsi, ASGI, Altaf Mehraj vice Azhar ul Amin, Advocate.
i) Whether approved for reporting in Law journals etc.: Yes / No
ii) Whether approved for publication in press: Yes / No
1. Petitioners herein, by the medium of the instant petition, have prayed
for the following reliefs:-
I) "By issuance of writ of mandamus, the Jammu and
Kashmir Wildlife(Gazetted) Service Recruitment
Rules, 1994 as framed vide SRO 158 of 1994, to the
extent it does not provide for any promotion
avenues for the post of Assistant Wildlife Warden,
be declared as ultravires to the Constitution.
II) By issuance of writ of mandamus, the respondents
be commanded to notify 'State Forest Service' as
mandated in terms of Rule 2(g)i) of the Indian Forest
Service(Recruitment) Rules of 1966 read with
Regulation 5 of IFS (Appointment by Promotion)
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Regulations of 1966 and include the petitioners as
members of 'State Forest Service.
III) By issuance of writ of mandamus, the respondents
be commanded to prepare the list of suitable
officers for induction into Indian Forest Service by
promotion in accordance with Indian Forest
Service(Appointment by Promotion)Regulations,
1966, only after the 'State Forest Service' is notified.
Or in alternative;
IV) By issuance of writ of mandamus, the respondents
be commanded to amend J&K Forest (Gazetted)
Service Recruitment Rules, 1970 and thereto
incorporate the post of Assistant Wildlife Warden as
category "K" in clause II of Schedule I appended to
the said Rules and thereto provide for filing of 20%
posts of Deputy Conservator of Forests by promotion
from category "K" and thereto consider case of the
petitioners for promotion to the post of Deputy
Conservator of Forests retrospectively from the date
petitioners have completed the requisite six years
service as that of Assistant Wildlife Warden and
thereto consider the case of the petitioners for
induction into Indian Forest Service in accordance
with mandate of Regulations of 1966."
2. It is being pleaded by the petitioners that the post of Assistant
Wildlife Warden is a single cadre post having no promotional
avenues, therefore, the respondent-State is legally obliged to
create promotional avenues for the petitioners having regard to
its constitutional obligations expressed under Article 14 and 16 of
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the Constitution of India. It is further pleaded that the promotion
being a condition of service and having regard to the requirement
thereof, there have to be rules of recruitment governing the
service conditions of the petitioners which must provide avenues
for promotion. However, in the case of the petitioners, as pleaded
by them, the J&K Wildlife(Gazetted) Service Recruitment Rules,
1994 puts a complete embargo on future promotion of the
petitioners and the fate of the petitioners is sealed for all time to
come, therefore, prayed that the Rules framed in terms of SRO
158 of 1994 to the extent same does not provide for promotion to
the petitioners are required to be declared as ultravires to the
Constitution. It is further pleaded in the petition that in terms of
the J&K Wildlife(Protection) Act, 1978, a Forest Officer means and
includes the Forest Officer defined in Clause(f) of Section 2 of the
J&K Forest Act, 1987.
3. The word "Forest" is defined as an eco system, an association of
plants and animals. The definition of "Forester" as per Wikipedia
is the Science, Art and Craft of creating, managing, using,
conserving and repairing forests and associated resources in a
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suitable manner to meet desired goals, needs and values for
human benefit. Furthermore, the forestry embraces a broad range
of concerns, which includes natural water quality management,
watershed management besides wildlife habitat. The State of
Jammu and Kashmir has also notified the Jammu and Kashmir
State Forest Policy, 2010 and the basic objective of the policy is
conservation of biodiversity and natural habitat through
preservation of natural forests with the vast variety of flora and
fauna. The forest policy also provide for effective protection and
management of forests and wildlife. Same is also being pleaded in
the petition.
4. It is further pleaded that the petitioners holding substantively the
post of Assistant Wildlife Warden, are deemed to be the members
of a service connected with the Forestry in view of the nature of
duties attached to the post of Assistant Wildlife Warden,
therefore, the action of the respondents in not notifying the State
Forest Service as defined in Section 2(g) of the Indian Forest
Service(Recruitment) Rules, but on the contrary restricting the
zone of consideration for induction by promotion to the
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members of J&K Forest(Gazetted) Services only, renders the
entire process of induction into IFS by considering only members
of J&K Forest (Gazetted) Services, illegal and unconstitutional.
5. It appears from the perusal of the file that on 05.04.2013 the
interim direction has been passed by the Court, wherein the
respondents were directed not to proceed with the promotion
process for the post of Deputy Conservator of Forests till further
orders. Thereafter, the writ petition was admitted on 23.08.2014
and the case was directed to be processed for final hearing. In
terms of the order dated 25.03.2015, learned counsel for the
respondent-State had made a statement that the process for
providing avenues of promotion from the post of Assistant
Wildlife Warden to the post of Deputy Conservator of Forests was
under consideration of the appropriate authorities and a decision
on the same was likely to be taken shortly and further stated that
the instructions would also be sought with regard to the inclusion
of the petitioners as members of the State Forest Service. In this
behalf learned counsel for the respondent-State prayed for
adjournment so as to enable him to file affidavit in respect of the
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statement, as made by him, which was allowed and it was
directed that in case instructions are not obtained and affidavit is
not filed, the matter would be heard, considered and decided on
the basis of the available material on record and no further
opportunity would be granted. Thereafter, the matter came up for
consideration before this Court on 04.10.2018, in terms of which
Mr. Jahangir, learned senior counsel, appearing for the
petitioners, submitted that he does not want to press the
relief providing for as to whether J&K Wildlife(Gazetted) Service
Recruitment Rules of 1994 are constitutionally valid inasmuch as
these Rules do not provide for promotion avenues to its members
holding the post of Assistant Wildlife Warden substantively. The
only reliefs which are being pressed now, in terms of the said
order dated 04.10.2018, with regard to the constitution of State
Forest Service and preparation of list of suitable officers for
induction into Indian Forest Service by promotion.
6. Principal Secretary to Government, Forest, Environment &
Ecology Department, in compliance to the order dated 25.03.2015
had filed the detailed affidavit about the stand of respondents
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and various aspects related with appreciation of the merit of
contention projected by petitioners. Relevant it may be to note
that counter affidavit has not been filed by respondents though
opportunity to file same has been utilized. It would be proper
herein to quote relevant excerpts from the said affidavit about
the stand of respondents:-
"The Department of Wildlife Protection was created in
the year 1982 and the Government had sanctioned seven posts
of Assistant Conservator of Forests vide its order No.89-
TSM(WL) of 1985 dated 23.07.1985. The said department was
subsequently reorganized in the year 1991, consequently the
J&K Wildlife(Gazetted) Service Recruitment Rules were notified
in the year 1994 along-with the Schedule of posts, which
include the following posts:-
a) Chief Wildlife Warden(IFS);
b) Regional Wildlife Warden(IFS); and,
c) 13 posts of Assistant Wildlife Warden including
the posts of Ecologist and Research Officer in
the same pay scale.
That the petitioners were appointed as Assistant Wildlife
Wardens in the year 1996 in pursuance of Recruitment Rules of
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1994 notified vide SRO 158 of 1994, meaning thereby that they
have accepted the appointment as per the said rules where-
under no promotion avenues were available to the said post.
Thus, the petitioners cannot seek promotion against the
non-existing posts. Further, it is contended that the
Department of Wildlife has its own Recruitment Rules notified
vide SRO 158 of 1994 and the service conditions of the
petitioners are governed by the said rules, while as, the
Department of Forrest is also having its own Recruitment Rules
Gazetted/Non-Gazetted, which govern the service conditions of
the members of Forest Department only. It is stated in the said
affidavit that to provide promotional avenues to all the wings
of the Forest Department including the Wildlife, it was felt
desirable to have a common service of all the wings of the
Forest Department, and for that purpose a committee was
constituted vide Government order dated 06.08.2014, copy of
which has been placed on file. The said committee had held
various meetings, but the proceedings of the said meetings
were damaged in the devastating floods of September 2014, as
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such, no report has been received from the committee so far. It
has been further contended in the affidavit that in terms
of the J&K Forest (Gazetted) Service Recruitment Rules, the
post of Deputy Conservator of Forests is required to be filled up
as under:-
a) By promotion from class III categories A, B, C
and D from amongst those who possess,
i) AIFS or equivalent qualification and have
prepared a working plan which stands
approved or have rendered service of not
less than 06 years in that class.
OR
ii) DDR or equivalent qualification and have
rendered not less than 16 years service.
The categories A, B, C and D of class III are of
the following posts:
Category -'A'
i) Assistant Conservator of Forests
ii) DFO Fire Wood
iii) Publicity Officer
Category -'B'
i) Assistant Conservator of Forests photo
interpretation unit
Category -'C'
i) Assistant Wildlife Warden
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Note:- This category was removed from the list
in the year 1994 subsequent to issuance of
notification SRO 158 dated 12.08.1994.
Category -'D'
i) Assistant Conservator of
Forests(Research).
That prior to issuance of J&K Wildlife(Gazetted) Service
Recruitment Rules, 1994, the post of Assistant Wildlife Warden
was also a feeding category for the post of Deputy Conservator
of Forests, but thereafter the post of Assistant Wildlife Warden
was included in the said service and Rule 13 of the said Rules
provide as under:-
"Repeal and saving:- All rules corresponding to these
rules and in force immediately before the
commencement of these rules are hereby repealed."
In view of the above referred rule position, according to the
respondents, it is, thus, clear that there is now no provision for
the promotion of Assistant Wildlife Warden against the post of
Deputy Conservator of Forests, as both these services i.e. Forest
Gazetted Service and Wildlife Gazetted Service are two
different services and both the Rules have not been amended
so far, therefore, the petitioners cannot be considered for
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promotion against the post of Deputy Conservator of Forests.
As regards to the notification in terms of Rule 2(g)(i) of the
Indian Forest Service (Recruitment) Rules, 1966, read with
Regulation 5 of Indian Forest (Appointment by Promotion)
Regulations, 1966, the Department is preparing the panel of
the officers borne on the J&K Forest Gazetted Service for
induction into the IFS and the officers of the rank of ACF and
above fulfilling the eligibility criteria are being inducted into
IFS(Indian Forest Service) in consultation with the Union Public
Service Commission but till date no decision has been taken by
the Government in this regard."
7. Heard learned counsel for the parties and perused the material
placed on file.
8. Learned counsel for the petitioners submitted at the very debut
that during the pendency of the writ petition, the Government
had issued the order bearing No. 202-FST of 2016 dated
02.08.2016, in terms of which one post of Deputy Conservator of
Forests(Wildlife) Selection Grade and four posts of Deputy
Conservator of Forests(Wildlife) were notified and in this view of
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the matter the petition is to be considered only with regard to the
prayers (II) and (III) made in the petition i.e. about constitution of
the State Forest Service coupled with the direction to be given to
the respondents to prepare the list of suitable officers for
induction into Indian Forest Service by promotion in accordance
with Indian Forest Service (Appointment By Promotion)
Regulations, 1966.
Learned counsel has also referred to the Indian Forest
Service (Recruitment) Rules, 1966, wherein definition of State
Forest Service is given in Rule 2(g)(i), same reads:-
"2(g) 'State Forest Service' means:
(i) any such service in a State, being, a service
connected with forestry and the members
thereof having gazetted status, as the Central
Government may, in consultation with the
State Government, approve for the purpose
of these rules."
Rules regarding constitution of the said service and the
method of recruitment have also been referred therein. Rules 3 &
4 in this regard are relevant to be reproduced hereunder:-
"3. Constitution of the Service
(1) The services shall consist of the
persons recruited to the service in
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accordance with the provisions of
these rules.
4. Method of Recruitment of the Service
........
(2) Recruitment to the Service, shall be by the following methods, namely-
(a) By a competitive examination .........
(b) By promotion of substantive members of the State Forest Service.
(3) Subject to the provisions of these rules-
(a) The method or methods of recruitment to be adopted for the purpose of filling up any particular vacancy or vacancies as may be required to be filled during any particular period of recruitment, shall be determined by the Central Government in consultation with the Commission and the State Government concerned.
(b) The number of persons to be recruited by each method shall be determined on each occasion by the Central Government in consultation with the State Government concerned.
(4) Notwithstanding anything contained in sub-rule(2), if in the opinion of the Central Government the exigencies with the State Governments and the Commission, adopt such methods of recruitment to the Service other than those specified in the said sub-rule, as P a g e | 14 it may by regulations be made in this behalf prescribe.
That the object of the initial recruitment to the Indian Forest Service from amongst those persons in the service, who, on the date of the constitution of the service, are members of the State Forest Service is to give advantage of a higher service to the members of the State Forest Service of each State not only in respect of status, but in respect of pay, pension, retirement age, death-cum-
retirement benefit and other service benefits which are not available to them under the conditions of service applicable to the State Forest Service, Rule 4(1) of the Indian Forest Service(Recruitment) Rules, 1966 cannot be read without Rule 3(1) but must be read together and the persons who are eligible for recruitment are those, who, on the date of the constitution of service, are members of the State Forest Service and who conform to the conditions of eligibility set out in Indian Forest Service(Initial Recruitment) Regulations, 1966. The Central Government appears to have by way of abundant caution, added sub-rule(3-A) to Rule 4, the effect of which was to empower it to make fresh recruitment under that sub-rule, notwithstanding anything contained in sub-rule(2), to fill up such appointments which may have been declared invalid by any judgment or by any court and to give effect to the P a g e | 15 appointments so fill up from the same date on which the appointments, which were declared invalid had been given effect to. That the Central Government has power to make such a rule under Section 3 of the All India Service Act, 1951, has not been challenged and is undoubted. In any view of the matter, the contention that the initial recruitment must be made from amongst those members who are in the State Forest Service when the selection is actually made and not on the date of the initial constitution is untenable and must be rejected."
9. Learned counsel has also referred to the Indian Forest Services(Appointment BY Promotion) Regulations, 1966, which have been framed in exercise of powers conferred under Sub- Rule(1) of Rule-8 of the Indian Forest Service (Recruitment) Rules, 1966. The obligations cast in terms of statute/rules/regulations having not been discharged by the respondents, as such, indulgence of the Court has been accordingly sought. Reliance on the following judgments has been taken to substantiate his arguments:-
(a) Panchraj Tiwari Vs. Madhya Pradesh State Electricity Board & Ors. (2014)5 SCC 101;
(b) AIR 2004 SC 1249, State of Tripura Vs. K.K.Roy;
(c) A.Satyanarayan & Ors. Vs. S.Purushotham & Ors. (2008)5 SCC 416.
P a g e | 16 In Panchraj Tiwari Vs. Madhya Pradesh State Electricity Board & Ors. (2014)5 SCC 101, their lordships have enunciated:-
(i) that complete denial of promotion forever cannot be comprehended under Articles 14 and 16 of the Constitution. Once a service gets merged with another service, the employee concerned has a right to get positioned appropriately in the merged service, that is the plain meaning of 'absorption.'
(ii) Their lordships further held that chances of promotion are not conditions of service, but negation of even the chance of promotion certainly amounts to variation in the conditions of service attracting infraction of Articles 14 and 16 of the Constitution. No employee has a right to particular position in the seniority list but all employees have a right to seniority since the same forms the basis of promotion.'
10. Their lordships' in the said case had to determine the question regarding integration / merger / amalgamation of the service. Brief facts of the case in which question come up for determination are:-
The appellant, a graduate, started his career as Junior Engineer on 23-9-1986 in the Rural Electricity Cooperative Society, Rewa. During 1995, it appears a policy decision was taken by the State Government to dissolve all such societies and merge the same with the Madhya Pradesh State P a g e | 17 Electricity Board (hereinafter referred to as "M.P SEB"). Accordingly, the Managing Committee of the Rural Electricity Cooperative Society, Rewa was superseded in May 1995 and a Superintending Engineer of M.P SEB was appointed as Officer- in-charge. However, it took a few years to complete the formalities of the merger. Finally, the Rural Electricity Cooperative Society, Rewa was completely merged with M.P SEB w.e.f 15-3-2002.
The principles of merger were clarified by M.P SEB after prolonged correspondence as per Annexure P-12 dated 15-6- 2004. For the purpose of ready reference, we shall extract the contents:
"Please refer to this office order cited under reference. It is requested to issue necessary orders for absorption of employees of REC societies falling under your area of jurisdiction on the same terms and conditions of the societies. The terms and conditions of the societies may be obtained from DE (STC), Jabalpur.
Further other terms and conditions on which employees can be absorbed:
1. The regular employees of the above societies shall be taken over on the same terms and conditions as existing in the society except that no deputation allowance shall be paid.
2. Their pay scale will be the same which they were getting before the absorption.
3. The above employees may not be transferred out of the circle concerned, so that no anomaly arises.
4. Their age of superannuation will be the same as applicable in the societies.
5. Pension/gratuity will be payable to the employees absorbed in the Board as per the rules/regulations of the society concerned.
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6. Their designation will be maintained as it was in the society."
(emphasis supplied) The principles of absorption as extracted above would clearly show that the employees of the society have been taken over and absorbed in M.P SEB. However, their pay scale on the date of absorption was protected, their designation was maintained as it was in the society at the time of absorption and the age of superannuation, pension and gratuity of such employees were to be governed by the rules/bye-laws of the society concerned.
Though it may appear that there are some conditions which are normally not found in the principles of integration, the fact remains that the employees of the erstwhile Society which merged with M.P SEB, have been absorbed in the service of M.P SEB.
Integration/merger of services means creation of a homogenous service by the merger of service personnel belonging to different services:
Though it is difficult to have a perfect coalescence of the services on such merger, the principle of equivalence is to be followed while absorbing the employees, to the extent possible.
11. In this regard their lordships' also made reference to the judgment of Hon'ble Apex Court in S.S.Bola's case:-
The instant is a case where there is complete denial of promotion forever which cannot be comprehended under the constitutional scheme of Articles 14 and 16 of the Constitution of India. In this context, we shall refer to a beautiful discussion on this aspect in S.S Bola case at para 153. The relevant portion reads as follows: (SCC p. 634) P a g e | 19 "153.
AB. A distinction between right to be considered for promotion and an interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruitment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an act merely affecting the chances of promotion *would not be regarded as varying the conditions of service. The chances of promotion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a constitutional court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the Court is the result of the declaration of law but not the operation of the rules per se."
(emphasis supplied)
12. In AIR 2004 SC 1249, State of Tripura Vs. K.K.Roy, it has been observed that the 'State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer P a g e | 20 of appointment knowing fully well that there was no avenue of promotion, he cannot resile therefrom. Therefore, disposed of the appeal by directing that the respondent herein be paid two promotions in the next higher scale of pay upon his completion of 12 years and 24 years in service.'
13.The brief facts as noted in the referred judgment are:-
Having been selected by the Tripura Public Service Commission, the respondent herein was appointed as Law Officer-cum-Draftsman in the Directorate of Cooperation, Government of Tripura. There was only one post in the same Cadre and it had no promotional avenues. He filed a representation that his post be upgraded or two promotional avenues be provided to him. Several representations made by him having not received consideration at the hands of the appellants, the respondent herein filed a writ petition seeking for a specific direction upon the appellant herein to provide at least two promotional avenues. The said contention of the respondent was accepted by the High Court and by reason of its impugned judgment the appellant was directed to provide 'the graded scale' to the appellant by providing three grades, the initial being Grade III which is the Post of Law Officer cum Draftsman and thereafter Grade II and Grade I. Officer of Tripura Judicial Service. It was further directed:
"The scale of pay of Grade II Law officer-cum-Draftsman shall be same as Grade-II officer of the Tripura Judicial Service. The scale of pay of Grade-I Law Officer-cum- Draftsman shall be equal to the scale of pay of Grade-I officer of Tripura Judicial Service."
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14. In A.Satyanarayan & Ors. Vs. S.Purushotham & Ors. (2008)5 SCC 416, their lordships have held 'that it is permissible to fix quota for different categories of employees coming from different feeder posts but after fixing quota chances of further promotion of one category of employees could not be diminished by putting a ceiling on number of posts to which that category could be promoted. It is however open to adopt a uniform policy of diminishing chances of promotion for all categories of employees.' Paras 23 to 34 of the above referred judgment shall be advantageous to be quoted hereunder:-
"We, however, are of the opinion that the validity or otherwise of a quota rule cannot be determined on surmises and conjectures. Whereas the power of the State to fix the quota keeping in view the fact situation obtaining in a given case must be conceded, the same, however, cannot be violative of the constitutional scheme of equality as contemplated under Articles 14 and 16 of the Constitution of India. There cannot be any doubt whatsoever that a policy decision and, in particular, legislative policy should not ordinarily be interfered with and the Superior Courts, while exercising its power of judicial review, shall not consider as to whether such policy decision has been taken mala fide or not. But where a policy decision as reflected in a statutory rule pertains to the field of subordinate legislation, indisputably, the same would be amenable to judicial review, inter alia, on the P a g e | 22 ground of being violative of Article 14 of the Constitution of India.
The High Court, therefore, in our opinion, was not wholly correct when it opined that a policy decision cannot be a subject matter of judicial review. If the State has the power to fix a quota, the Rule underlying the legislative policy must stop at that and the necessary consequences thereof must ensue. Indisputably, again although the State was entitled to provide for quota as also a guideline as to how the roster should work out itself, but thereby it cannot be permitted to put a cap on promotion for the entire service period.
While saying so, we are not unmindful of the legal principle that nobody has a right to be promoted; his right being confined to right to be considered therefor.
Similarly, the power of the State to take a policy decision as a result whereof an employee's chance of promotion is diminished cannot be a subject matter of judicial review as no legal right is infringed thereby.
However, such a Rule must apply to both the groups. Promotion to a higher post from the officers of a particular cadre would depend upon a large number of factors- a person may retire; he may be departmentally proceeded against, he may be sent on deputation; he may resign; Cessation of employment, thus, may be on various grounds. If the number of posts is limited despite uncertainty with regard to arising of any vacancy on any higher post, the validity of such a rule would be open to question.
The Superior Courts, while exercising their power of judicial review, must determine the issue having regard to the effect of the subordinate legislation in P a g e | 23 question. There must exist a rational nexus between the impugned legislation and the object of promotion. Promotions are granted to a higher post to avoid stagnation as also frustration amongst the employees. This Court, in a large number of decisions, has emphasized the necessity of providing for promotional avenues. (See Food Corporation of India v. Parashotam Das Bansal). The State, keeping in view that object, having found itself unable to provide such promotional avenue, provided for the scheme of Accelerated Career Progress (ACP). The validity and effect of the impugned legislation must be judged keeping in view the object and purport thereof. This Court would apply such principle of interpretation of statute which would enable it to subserve the object in place of subverting the same.
Whereas, on the one hand, it has been contended before us that all future promotions that is promotion from the post of Assistant Secretary upwards are given on merit, on the other hand, a cap of 10 posts has been made for all the four categories of posts. It is one thing to say that the State evolves a policy of prescribing a reasonable quota at all levels of the promotion but it would be another thing to say that while totally ignoring the question of birthmark, a few posts shall be identified only on the basis of the original posts held by the employee concerned. To the said extent, the rule maintain a birthmark which runs counter to the decisions of this Court in Dwarka Prasad v. Union of India .
Although mere chance of promotion is not a fundamental right, but right to be considered therefor is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all time to come cannot be P a g e | 24 nullified and the same would be hit by Article 16 of the Constitution of India.
It has not been disputed before us that a panel is required to be prepared every year. The High Court, in its judgment, has considered the question only with reference to upward mobility. From the Rules, it furthermore appears that even the SOs can be transferred to the posts of PSs. Who would be holding what post, even at a subordinate level, may, thus, be a question of chance. It has been contended that whereas an Assistant normally has to put in a minimum of 15 to 16 years of service before he is promoted as a SO and further 8 to 12 years service as a SO before he is promoted to the post of Assistant Secretary; a PS could become Assistant Secretary within a period of 10 years. Our attention has further been drawn to the fact that at one point of time all the five posts of Additional Secretaries had been occupied by persons from the Private Secretary stream. They allegedly have other chances of promotion to the posts of Commercial Officers etc. Grievances of SOs have been taken into consideration for the purpose of fixation of a ratio of 1:19 amending the same to 14:1. No exception thereto can be taken but hardship faced by a section of employees in the past by itself cannot be a ground to deprive another section of their constitutional and legal right. We are, therefore, of the opinion that whereas ordinarily the ratio should not be disturbed, the same should not lead the court to a conclusion that such a policy has to be accepted although it takes away the right of a class of employees.
We have no doubt in our mind that before a rule is declared ultravires, the same must be held to be wholly arbitrary or irrational. In any event a plea of P a g e | 25 discrimination is based on adequate pleadings therefor would be essential. What, however, must be noticed by us is that the impugned rule does not take into consideration the events which may take place in future, as for example increase in the strength in the cadre. If the number of posts for promotion is limited to 10, even in a case like the present one where the number of posts has gone up, only 10 posts can be filled up from the cadre of the PSs although the same would contravene the ratio of 14:1. If the Government intends to change the ratio, it may do so. It may also provide for separate rules providing for maintenance of two different cadres at all levels. But what is impermissible is laying down a condition subsequent to adoption of a policy decision which defeats the object and purport thereof.
A statutory rule, it is a trite law, must be made in consonance with constitutional scheme. A rule must not be arbitrary. It must be reasonable, be it substantive or a subordinate legislation. The Legislature, it is presumed, would be a reasonable one. Indisputably, the subordinate legislation may reflect the experience of the Rule maker, but the same must be capable of being taken to a logical conclusion."
15. The omission on the part of the respondents, according to learned senior counsel for the petitioners, to constitute State Forest Service in the light of the mandate of Indian Forest Service (Recruitment) Rules, 1966, is violative of the rules and the stand taken in terms of the affidavit brought on record, filed in compliance to the order dated 25.03.2015, is clearly suggestive of the fact that the respondents are unmindful of rights of the P a g e | 26 petitioners. The callous approach of the respondents is vividly clear from mere glance of the said affidavit. The plea taken that the committee had been constituted to re-visit the entire subject and to propose necessary changes in the existing rules, but the record, according to the respondents was later on lost as the same got damaged in the floods of 2014 clearly shows that the respondents are not sensitive to the hardships faced by the petitioners. Exercise of extraordinary jurisdiction is, as such, warranted in the matter.
16. Ms. Asifa, learned AAG, submitted that rules cannot be framed according to the choice of the petitioners. Her contention is that the petitioners were acquainted with the fact that as per the rules no promotion avenues were available in the cadre on which appointment was made.
17. To controvert the contentions of learned AAG, learned counsel for the petitioners submitted that the stand of the State made through learned AAG is bereft of legal sanctity and contours of the principles of law laid down by the Hon'ble Apex Court in the judgments referred supra. Learned counsel for the petitioners has also referred to the communication dated 22.09.2009(Annexure- M to the writ petition) of respondent No.5-Principal Chief P a g e | 27 Conservator of Forests addressed to the Commissioner Secretary to Government, Forest Department, where-under it is suggested that for the career progression for each post minimum three promotions need to be spelled out and it is desired to have a common SFS Service Rules, therefore, it is recommended for merging of the J&K Wildlife(Gazetted) Service with J&K Forest(Gazetted) Service.
18. Considered the rival arguments.
19.It needs to be noted that at the very inception respondents herein had not opted to file counter affidavit despite availing reasonable opportunities. Same having been viewed by the Court, right to file same was closed in pursuance of the order dated 23.12.2014. The stand of the respondents is, however, discernible from the affidavit referred above filed in compliance to the order dated 25.03.2015.
20.Rules of Indian Forest Service(Recruitment) Rules, 1966 makes abundantly clear that the State is under duty to constitute State Forest Service so that recruitment is made in the Indian Forest Service to the extent of quota meant to be utilized by the promoting members of State cadre to the said service. It is not the stand of the respondents that after P a g e | 28 the rules came into force along-with regulations framed under Sub Rule(1) of Rule 8 of the Indian Forest Service(Recruitment) Rules, 1966, that the State service was constituted for the desired purpose. Rather it is unambiguously clear from the stand taken in the affidavit referred supra that quota meant for promotion from the State Service is being utilized by taking the members of the Forest Gazetted Service to man such positions. It is also the stand of the respondents (in the said affidavit), that prior to framing of Rules of 1966, the appointment of post of Assistant Wildlife Warden and the promotion thereof was made from the officers of the Forest Service only. This itself indicates that the incumbents/officers working in the Wildlife Wing of the Forest Department had an opportunity to advance their career by being promoted to Indian Forest Service while being a constituent of State Forest Gazetted Service. The position has changed by promulgation of SRO, referred above, when the Wildlife Organization was created as a separate department and various categories of posts in the Gazetted service were created, which, however, did not provide an opportunity for promotion from the lower rung, as stated above and was taken care of by promulgation of Government Order No. 89-ISM(WL) of 1985 dated P a g e | 29 23.07.1985 where-under seven posts of Assistant Conservator of Forests were created so that the promotions in the said Organization could be made from the posts of Assistant Wildlife Warden.
21. The petitioners have canvassed that the nature of their service related with the forest service for which reliance is also placed on the State Forest policy (referred supra). Annexure-J to the petition (bearing No. FST/Ser/79/2001 dated 02.03.2005) shows that the proposal had been under consideration to have the common State Forest Service with particular focus on Departments of Forest, Forest Protection, Social Forestry and Soil Conservation, Environment & Remote Sensing, Wildlife Protection. Annexure-H to the petition, a communication dated 19.04.2004 from Chief Wildlife Warden to the Financial Commissioner, Forest Department, shows that the department being conscious of the fact that two services of two forest wings i.e. Forest Department and Wildlife could not be separated as both are stemmed in the Forest Department. The said communication also portrays that merger of the Wildlife Gazetted Organization with the Forest Department can be beneficial as a whole for the Organization and the rich experience in various wings could be professionally fruitful and also the officers P a g e | 30 considered and inducted into Indian Forest Service accordingly. The Wildlife Wing, is also reflected in various annexures, was associated and functioning in past with Forest Department. Various representations moved by the petitioners to redress their grievances and same having remained under consideration of respondents, stand corroborated by the annexures to the writ petition.
22. The correctness of the arguments raised on behalf of the petitioners that the State being a model employer has to look into the welfare of its employees cannot be denied. This roots in the concept of good governance and optimism utilization of talent and human resource employed by the State. Aspirations of being considered for promotion are certainly legitimate one and have not to end in dispel.
23. It is also true that induction by promotion in the Forest Service is governed by Indian Forest Service (Recruitment) Rules, 1966 and Regulation 5 of the Indian Forest Service (Appointment By Promotion) Regulations, 1966, which necessitates for preparation of the list of suitable officers to be prepared by the committee constituted under sub- regulation-3. Regulation-5 prescribes that the committee has to consider the case of the members of State Forest Service on the first day of P a g e | 31 January of the year for which the select list is prepared and the members are substantive in the State Forest Service having completed not less than eight years of continuous service. State Forest Service, however, has not been defined in the said regulation but Rule 2(g)(i) of the Indian Forest Service(Recruitment) Rules, 1966 noted above prescribed as to what is to be meant by State Forest Service. Notification admittedly has not been issued by the respondent-State for the purpose of implementation of the mandate of Rule 2(g) of Indian Forest Service (Recruitment) Rules, 1966 as required by Regulation 5 of the Indian Forest Service (Appointment By Promotion) Regulations, 1966 referred above. Minister for Forests, as is indicated in Annexure-T, had advised the department to take proposal with ARI & Training department, and meanwhile, complete revision/review of recruitment rules. Since State Forest Service has not been constituted till date, same needs to be constituted on priority.
24.While considering the matter in light of the above facts and circumstances, I am of the opinion that the respondents cannot adopt the policy of status-quo. Same, if permitted has propensity of visiting civil consequences for the petitioners besides being militating their right P a g e | 32 of career advancement. As a model Employer, State is not expected to remain content in pleading to have constituted a committee to look into the matter, the record of which got damaged in the floods and the draft of that could not be kept. In case the position was so, they were required to take other remedial measures regarding re-constitution of the committee and have review/revision of recruitment rules as indicated in Annexure-T, for which the follow up was also to be made with ARI & Training Department.
25. The mechanism adopted by the respondents for promoting only the members of Forest Gazetted Service to Indian Forest Service appears to be wholly arbitrary, illogical and unjust. No justification is left with the respondents to deprive other wings of the Forest Service including the petitioners from consideration zone. By their abstinence to take definite, positive and prompt stand for constitution of State Forest Service as meant by Rule 2(g)(i) of the Indian Forest Service (Recruitment) Rules, 1966. The plea taken on behalf of the respondents that the petitioners cannot agitate their grievance now when they were conscious of the fact that there were no promotion avenues available when the rules were P a g e | 33 framed in 1994, also requires to be turned down being without any merit and legal force.
26. Writ petition is, accordingly, allowed. Writ of mandamus is granted, whereby respondents are directed to notify 'State Forest Service' as required in terms of Rule 2(g)(i) of the Indian Forest Service(Recruitment) Rules, 1966 read with Regulation 5 of the Indian Forest Service (Appointment By Promotion) Regulations, 1966 and to consider the petitioners as members of said Forest Service. Furthermore, respondents are directed to prepare a list of suitable officers for induction into Indian Forest Service by promotion in accordance with Indian Forest Service (Appointment By Promotion) Regulations, 1966 after notification of 'State Forest Service'. Exercise to be completed preferably within a period of eight weeks from the date copy of this order is served upon the respondents.
27. Disposed of in the terms as indicated above.
( Rashid Ali Dar ) Judge Srinagar 12.02.2019 Muzammil. Q