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PETITIONER: KESHAV CHANDRA JOSHI AND ORS. ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT06/11/1990

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MISRA, RANGNATH (CJ) PUNCHHI, M.M.

CITATION:  1991 AIR  284            1990 SCR  Supl. (2) 573  1992 SCC  Supl.  (1) 272 1990 SCALE  (2)951

ACT:     U.P.   Forest   Service   Rules,   1952:   Rules   3(h),     5(a)(b)--Appendix ’A’ & ’B’--6, 24 and 27.         Service  Law--Seniority--Assistant Conservators of      For-     est-Direct     recruits        and    promotees--Fixation     of     seniority--Appointment      of  promotees on ad hoc basis  as  a     stop gap arrangement and dehors the rules--Promotees holding     posts continuously for a long period-Continuous length of ad     hoc  service  from the date of      initial  appointment-Whether     should be counted towards seniority.         Rules  relating  to ’Conditions  of      service’--Power  of     Governor  to  relax--Consultation by  Governor      with  public     Service      Commission is mandatory--Word ’may’ in Rule 27  has     been  used in the context of discharge of duty--It  must  be     read as ’shall’.         ’Rules    of    recruitment’    and        ’Conditions    of     service’--Distinction between--Rule 5(a)(b) and Appendix ’A’     & ’B’ are basic rules of recruitment and not subject to Rule     27.         Promotees  appointed  on  ad hoc basis  and      dehors  the     Rules-Allowing      the  promotees  to  officiate  for  a   long     period--Whether      appointment should be deemed to  have  been made in relaxation of the Rules.

HEADNOTE:

Under U.P. Forest Service Rules, 1952 recruitment to the posts of Assistant conservators of Forest was made from  two sources, namely, by direct recruitment, under Rule 5(a) read with  Appendix  ’A’, and by promotion  of  permanent  Forest Rangers,  under Rule 5(b) read with Appendix ’B’. Rule 6  of the  rules  provided  that not more than 25%  of  the  total number of posts shall be filled by promotion.     The petitioners (promotees) were appointed to the  posts of  Forest  Rangers. Due to pendency  of  legal  proceedings there  was no direct recruitment to the posts  of  Assistant Conservators of Forest under Rule 574 5(a)  till 1974 and even thereafter. The  petitioners-promo- tees  were appointed on the posts of Assistant  Conservators of Forest on ad hoc basis, between March 13, 1974 and Novem- ber  21,  1981 subject to direct recruitment and  they  were

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continuing temporarily on ad hoc basis for varying period of 5  to 12 years. With effect from 1st May, 1975 the ratio  of 25%  recruitment of promotees under Rule 6 was increased  to 33  1/3%.  In the meanwhile the direct recruits  under  Rule 5(a)  were appointed on probation to substantive  vacancies. When  their claim was ripe for consideration as Deputy  Con- servators of forest, the petitioners claiming seniority over them filed Writ Petitions in this Court contending (i)  that though  the promotees were appointed on ad hoc basis due  to non-availability of direct recruits yet they were continuing for  well  over 5 to 12 years discharging the  same  duties, drawing  the same scale of pay without any reversion;  their posts were not fortuitous, nor stop gap. Consequently  their entire continuous length of service from the dates of  their initial promotion should be counted towards their seniority; (ii)  since  the promotees were allowed to officiate  for  a long  period they must be deemed to have been  appointed  in relaxation of the rules of recruitment under Rule 27 of  the rules by the Governor.     On  behalf of the direct recruits it was  contended  (i) since  the appointment of the promotees was on ad hoc  basis and  not  on the basis of merit as per rules  they  have  no right  to  the posts. Consequently the service  rendered  by them  from the dates of initial promotion till date of  sub- stantive  appointment  being fortuitous  cannot  be  counted towards  seniority; (ii) since the promotees were  appointed in excess of the prescribed quota in Rule 6, they should  be pushed  down to the vacancies that had arisen in  each  year above the direct recruits as per the ratio as the  promotees were not entitled to claim seniority from the initial  dates of  their  respective promotions; (iii) that  the  power  of relaxation  in Rule 27 was only in respect of conditions  of service and not relating to recruitment or promotion. Disposing the petitions, this Court,     HELD:  1. Under rule 5 read with Rule 3(h) of  the  U.P. Forest  Service Rules, 1952 a member of the service means  a person,  be  it direct recruit under rule 5(a)  or  promotee under Rule 5(b), appointed in a substantive capacity to  the service  as  per the provisions of the rules.  In  order  to become  a member of the service he must satisfy  two  condi- tions, namely, the appointment must be in substantive capac- ity and the appointment has to be to the post in the service according to rules and 575 within  the quota to the substantive vacancy.  There  exists marked  distinction  between appointment  in  a  substantive capacity and appointment to the substantive post. Therefore, the  membership to the service must be preceded by an  order of  appointment  to the post validly made by  the  Governor. Then  only he becomes member of the service. Any other  con- struction would be violation of the rules.     2.  Employees appointed purely on ad hoc or  officiating basis due to administrative exigencies, even though  contin- ued  for  a  long spell, do not become the  members  of  the service unless the Governor appoints them in accordance with the  rules and so they are not entitled to count the  entire length of their continuous officiating or fortuitous service towards their seniority. Reckoning continuous officiating of ad  hoc promotion would enable the less privileged to  excel their latent capabilities in the cadre post.     Narendra Chadha v. Union of India, [1986] 1 S.C.R.  211; Baleshwardas  v.  State of U.P., [1981] 1 S.C.R.  449;  N.K. Chauhan v. State of Gujarat, [1977] 1 S.C.R. 1037 and Direct Recruits  Class 11 Engg. Officers’ Association v.  State  of Maharashtra, [1990] 2 S.C.C. 715; A.J. Patel & Ors. v. State

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of Gujarat & Ors., A.I.R. 1965 Guj. 23 (FB): referred to.     Masoor Akhtar Khan & Ors. v. State of M.P. & Ors.,  J.T. 1990 3S.C. 295; followed.     A.K.  Kraipak  &  Ors. etc. v. Union of  India  &  Ors., [1970] 1 S.C.R. 457; cited.     2.1  In  the instant case due to exigencies  of  service temporary  promotions  against  substantive  vacancies  were made. It is undoubted that preceding their promotion, an  ad hoc  Committee  had considered the cases of  the  promotees. Admittedly  seniority subject to rejection of unfit was  the criteria,  followed  in the selection.  The  selection  was, therefore,  in  defiance of and dehors Rule 5(b)  read  with Appendix  ’B’. The promotions were on ad hoc  basis  pending direct  recruitment  and were in excess of  the  quota  pre- scribed under rule 6. By no stretch of imagination it  could be said that the promotions were made to a substantive  post in  accordance with the rules. Therefore, the  promotees  do not hold the post in substantive capacity. Accordingly their continuous length of ad hoc service from the date of initial appointment cannot be counted towards seniority. 576     3.  The  pre-requisite of the .right to inclusion  in  a common  list of seniority is that all those who  claim  that right must broadly bear the same characteristics. Fortuitous circumstances  of theft holding the grade post carrying  the same  designation  or scale of pay or discharging  the  same duty would not justify the conclusion that they being to the same cadre.     4. An officer appointed by promotion in accordance  with Rules  and within quota and on declaration of  probation  is entitled to reckon his seniority from the date of  promotion and  the entire length of service, though  initially  tempo- rary,  shall be counted for seniority. Ad hoc or  fortuitous appointments  on  a temporary or stop gap  basis  cannot  be taken into account for the purpose of seniority, even if the appointee  was subsequently qualified to hold the post on  a regular  basis.  To give benefit of such  service  would  be contrary  to  equality  enshrined in Article  14  read  with Article  16(1)  of  the Constitution as  unequals  would  be treated as equals. When promotion is out side the quota, the seniority  would  be reckoned from the date of  the  vacancy within the quota, rendering the previous service fortuitous. The  previous promotion would be regular only from the  date of  the  vacancy  within the quota and  seniority  shall  be counted from that date and not from the date of his  earlier promotion or subsequent confirmation. In order to do justice to  the promotees it would not be proper to do injustice  to the direct recruits. The rule of quota being a statutory one must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to admin- istrative  exigencies or expediency. The result  of  pushing down the promotees appointed in excess of the quota any work out  hardship  but it is unavoidable  and  any  construction otherwise would be illegal, nullifying the force of statuto- ry rules and would offend Articles 14 and 16(1).     5.  Since the rules are legislative in  character,  they must harmoniously be interpreted as a connected whole giving life  and  force to each word, phrase and rule and  no  part thereof should be rendered nugatory or a surplusage.  Resort to iron out the creases could be had only when the construc- tion  of  the relevant rule, phrase or word  Would  lead  to unintended absurd results.     5.1  In  an  appropriate case if the  court  finds  that wanton  or deliberate deviation from the rules was  made  by the  implementing authority the court should call upon  them

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to  explain  the  reasons therefore and in  the  absence  of proper  explanation forthcoming castigate the authority  and pass   structures   condemning  the  actions   which   would discipline 577 the  authorities to adhere to the rules. Undue latitude  and acquiesce thereto would not only defeat the due  enforcement of the rules but also create disorder and frustration  among the members of the service.       Rule  27 of the U.P. Forest Service Rules, 1952  gives power  to  the Governor that if he is  satisfied   that  the operation of any rule regarding conditions of service of the members  caused undue hardship in a particular case; he  may consult  the  Public  Service  Commission;   notwithstanding anything  contained in the Rules and dispense with or  relax the  requirement  the conditions of service and  extend  the necessary benefit as is expedient so as to relieve  hardship and  to  cause just and equitable results.  The  word  "may" consult  the  Commission  has been used in  the  context  of discharge  of statutory duty. The Governor is  obligated  to consult  the Public Service Commission. Therefore, the  word "may" must be construed as to mean "shall" and it is  manda- tory  on  the  part of the Governor to  consult  the  Public Service  Commission before exempting or relaxing the  opera- tion of rule regarding conditions of the service of a member to  relieve  him from undue hardship and to cause  just  and equitable results.     5.3  There is a distinction between "rules  of  recruit- ment"  and  "conditions of service". The rules  relating  to recruitment to the service either under rule 5(a) or 5(b) or the manner of recruitment to service as per Appendix ’A’  or ’B’ are basic rules of recruitment to service. They are  not subject to rule 27.     Narendra  Chadha  v.  Union of India &  Ors.,  [1986]  1 S.C.R. 211; referred to.