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PETITIONER: BINDESHWARI RAM

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT19/09/1989

BENCH: OJHA, N.D. (J) BENCH: OJHA, N.D. (J) VENKATACHALLIAH, M.N. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1989 SCR  Supl. (1) 201  1989 SCC  (4) 465  JT 1989 (3)   712        1989 SCALE  (2)655

ACT:     Bihar Forest Service Rules, 1953: Rule 35(iii)--Seniori- ty--Fixation of inter-se seniority among Assistant Conserva- tors  of Forest-Determining Factor--Inter-se seniority  held as Ranger.     Administrative  Law: Statutory rule--Cannot be  modified or altered by executive instructions.

HEADNOTE:     The  appellant  and respondents 7 to  13  are  Assistant Conservators of Forest and are governed by the Bihar  Forest Service  Rules, 1953. As per Rule 3 thereof  appointment  to the  said  post is made either by direct recruitment  or  by promotion of selected Rangers.     The appellant and respondents 7 to 12 were promoters and respondent 13 was a direct recruit. Though the appellant was promoted subsequent to the promotion of respondents 7 to 12, his  appointment was made retrospective. The  appellant  was the last to be confirmed as Assistant Conservator of Forest. As  a Ranger also the appellant was appointed much later  to respondents 7 to 12. On the basis of confirmation  seniority has been determined. The appellant challenged the  seniority of  respondents 7 to 13 over him, by way of a Writ  Petition in the High Court. He relied on a memorandum to the  Cabinet which  contained a note that if the appellant was found  fit for  promotion his place would be above 10 general  category officers and since the memorandum was approved by the  Cabi- net  his name in the seniority list should have been  placed above  those  officers. The respondents resisted  the  claim stating that the Cabinet had not approved the memorandum  in its entirety. The High Court dismissed the Writ Petition and this appeal, by special leave, is against the said judgment. The contentions raised before the High Court were reiterated in this appeal, this appeal. Dismissing the appeal, 202     HELD:  1.1. Rule 35 of the Bihar Forest  Service  Rules, 1953 specifically deals with seniority. In the instant case, Clause (i) of the proviso is not attracted. Even Clause (ii) is  not attracted inasmuch as respondent No. 13 even  though

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was  appointed by direct recruitment, was not appointed  "at the  same time" as the appellant and respondents7 to 12.  It is  Clause (iii) which is relevant for the determination  of the seniority inter-se of the appellant and respondents 7 to 12. On a plain reading of this Clause it is apparent that on substantive appointment of Rangers to the service by  promo- tion,  their  seniority  inter-se in the service  is  to  be governed by "their seniority inter-se held as Rangers".  The appellant  as well as respondents 7 to 12 have already  been confirmed  as Assistant Conservator of Forest and  meet  the requirement  of "substantive appointment to the  service  by promotion".  In order to determine their inter-se  seniority as Assistant Conservator of Forest, therefore, their senior- ity  inter-se  as Rangers shall be the  determining  factor. Respondents  7  to  12 had been appointed  as  Rangers  much before  the date on which the appellant was appointed  as  a Ranger.  Hence the claim of seniority as made by the  appel- lant has no substance. [204D; 205B-E]     1.2. It is settled law that the provisions of  statutory rules  cannot be modified or altered by  executive  instruc- tions, and it is only in the absence of statutory rules that executive  instructions have relevance. As such even if  for the  sake of argument it may be accepted that on account  of the  memorandum  to the Cabinet or any other  executive  in- struction the appellant was to be given seniority as claimed by him, it could not be done, as in case of a conflict,  the statutory  provisions contained in proviso (iii) of Rule  35 of the Rules shall prevail. [205E-F]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3982  of 1989.     From the Judgment and Order dated 20.4.1988 of the Bihar High Court in C.W.J.C. No. 1749 of 1988.     B.R.L.  Iyengar,  Govind Mukhoty, K.K.  Gupta  and  Hari Narain Ojha for the Appellant.     Anil  Dev  Singh, A.K. Sen, D. Goburdhan,  T.C.  Sharma, Mrs. Sushma Suri and D .P. Mukherjee for the Respondents. The Judgment of the Court was delivered by OJHA, J. Special leave granted. 203     This  appeal  has been preferred  against  the  judgment dated  20th April 1988 of the Patna High Court dismissing  a writ petition filed by the appellant challenging a seniority list. Necessary facts in brief are these:     The  appellant  and respondents 7 to  13  are  Assistant Conservators of Forest in Bihar Forest Service. Their  serv- ice  conditions  are governed by the  Bihar  Forest  Service Rules,  1953 (hereinafter referred to as the Rules) made  by the Government of Bihar in exercise of the powers  conferred on  it by the proviso to Article 309 of the Constitution  of India.  According to Rule 2(vii) of the Rules "the  service" means  the  Bihar Forest Service. Rule 3 provides  that  the appointments of the service shall ordinarily be made by  (a) direct  recruitment in accordance with the Rules in Part  II of these Rules by competitive examination to be held by  the Commission;  and  (b) by promotion in  accordance  with  the Rules  contained  in Part V of  selected  rangers  specified therein. The appellant and respondents 7 to 12 were selected rangers  and  were  appointed as  Assistant  Conservator  of Forest by promotion under Rule 3(b). As is apparent from the counter affidavit on behalf of respondents 8 to 10, respond- ent  No. 11 was promoted as Assistant Conservator of  Forest

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on 21st December 1976, respondent Nos. 7, 8, 9 & 12 on  29th November  1977 and respondent No. 10 on 15th December  1978. In so far as the appellant is concerned, even though, he was appointed  subsequently, his appointment was made  effective retrospective from 29th November 1977. Respondent No. 13, on the other hand, as is apparent from the seniority list which was  challenged by the appellant, was appointed  under  Rule 3(a) of the Rule by direct recruitment on 3rd May 1978.  The counter  affidavit further indicates that respondent No.  13 was  confirmed  as Assistant Conservator of Forest  on  30th June 1983. Respondents 7 to 11 were confirmed on 30th August 1983 and respondent No. 12 was confirmed on 5th August  1983 whereas  the appellant was confirmed on 31st December  1986. In  the said counter affidavit, the dates of appointment  as rangers of respondents 11, 7, 8, 9, 10, 12 and the appellant respectively  are stated as 3rd April 1958, 4th April  1958, 5th  April 1958, 9th April 1958, 7th April 1959,  1st  April 1966  and 2nd April 1967. Even though a rejoinder  has  been filed  by  the appellant, the correctness of  the  aforesaid facts  has not been denied therein nor has it been urged  by the  learned counsel for the appellant before us that  these facts  are  inaccurate. It is on the basis of  these  facts, therefore,  that the respective submissions made by  learned counsel for the parties have to be considered. 204     It  has been urged by learned counsel for the  appellant mainly  relying  on a memorandum to the Cabinet  dated  24th November  1977 which contains a note that if  the  appellant was found fit for promotion by the selection committee,  his place  will be above 10 general category rank officers  men- tioned  therein, that in the seniority list the name of  the appellant  should  have been placed  above  those  officers. According  to  the  learned counsel for  the  appellant  the memorandum was approved by the Cabinet on the same date  and yet  in the impugned seniority list the aforesaid  direction was not carried out. For the respondents, it was urged  that the Cabinet had not approved the memorandum in its entirety. In our opinion, however, it is not necessary to go into this controversy.  It  was  on the above premise  that  the  writ petition  challenging  the seniority list was filed  by  the appellant  in  the High Court and according to  his  learned counsel, the High Court committed an error in dismissing the same.      Having  heard learned counsel for the parties, we  find it  difficult  to  agree with the  submission  made  by  the learned counsel for the appellant. As seen above, the  serv- ice  conditions of Assistant Conservators of Forest who  are members  of  the Bihar Forest Service, are governed  by  the Rules.  Rule 35 which specifically deals with the matter  of seniority reads as hereunder:               "35.  Seniority of officers appointed  to  the               Service shall be determined with reference  to               the  date of their substantive appointment  to               the Service.               Provided that--               (i)  in  the case of members  of  the  Service               appointed  by direct recruitment at  the  same               time, their seniority inter-se shall be in the               order of merit in which their names are placed               in  the list of successful candidates  at  the               Final  Examination of the Indian  Forest  Col-               lege, Dehra Dun;               (ii)  in case where appointments are  made  to               the  Service  both by direct  recruitment  and               promotion  of  selected Rangers  at  the  same

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             time,  the  promoted members  of  the  service               shall  be senior to the members  directly  re-               cruited; and                        (iii)   the  seniority  inter-se   of               Rangers  on  substantive  appointment  to  the               Service by promotion at the same time               205               shall  be  their seniority  inter-se  held  as               Rangers."     In the instant case we are not concerned with Clause (i) of  the proviso. Even Clause (ii) is not attracted  inasmuch as  respondent  No. 13 even though was appointed  by  direct recruitment,  was  not appointed "at the same time"  as  the appellant  and  respondents 7 to 12,  as  already  indicated above. That is clause (iii) of the proviso, therefore, which is relevant for the determination of the seniority  inter-se of the appellant and respondents 7 to 12. On a plain reading of  this Clause it is apparent that on substantive  appoint- ment of rangers to the service by promotion, their seniority inter-se in the service is to be governed by "their seniori- ty" inter-se held as rangers". As seen above, the  appellant as  well as respondents 7 to 12 have already been  confirmed as Assistant Conservator of Forest and meet the  requirement of "substantive appointment to the service by promotion". In order  to  determine their inter-se seniority  as  Assistant Conservator  of Forest, therefore, their seniority  inter-se held as rangers shall be the determining factor. The respec- tive  dates of appointment as rangers of the  appellant  and respondents  7  to  12 have already been  given  above.  Its perusal indicates that respondents 7 to 12 had been appoint- ed as rangers much before 2nd April 1967 which was the  date on which the appellant was appointed as a ranger. The  dates of appointment and confirmation of respondent No. 13 who  is a  direct recruit, have been noted earlier. In this view  of the  matter the claim of seniority as made by the  appellant has no substance.     It is settled law that the provisions of statutory rules cannot be modified or altered by executive instructions  and it is only in the absence of statutory rules that  executive instructions have relevance. As such even if for the sake of argument it may be accepted that on account of the  memoran- dum  to the Cabinet or any other executive  instruction  the appellant  was to be given seniority as claimed by  him,  it could  not  be done as in case of a conflict  the  statutory provisions contained in this behalf in proviso (iii) of Rule 35  of  the Rules shah prevail. In the  result  this  appeal fails and is dismissed but in the circumstances of the  case there shall be no order as to costs. G    .N.                                              Appeal dismissed. 206