http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  2665 of 2007

PETITIONER: Nani Sha & Others

RESPONDENT: State of Arunachal Pradesh & Ors

DATE OF JUDGMENT: 16/05/2007

BENCH: H.K. Sema & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 2665 OF 2007 (Arising out of SLP (C) No.19542 of 2005)

V.S. SIRPURKAR, J.

1.      Leave granted. 2.      This appeal is a classic example of the internal fight between  the direct employees and the promoted employees in the matter of  inter-se seniority.   3.      The appeal has been filed by five appellants challenging the  judgment of the Division Bench of the Guwahati High Court whereby  the judgment of the learned Single Judge of the High Court was  confirmed.  The learned Single Judge had allowed the writ petition  filed by the respondents herein.  In the writ petition the respondents  herein, who are the directly appointed Assistant Conservator of  Forests (hereinafter referred to as the "ACF" for short) had  challenged an order passed by the State of Arunachal Pradesh dated  8.6.2004 vide No.FOR 376/E(A)/2001/4901-61 granting retrospective  effect promotions to the appellants herein with effect from 2.11.1994.   With that retrospective effect the respondent nos.3 to 7 herein  became junior to the appellants since they were all appointed in the  year 1996 after direct examination to the post of ACF.  The learned  Judge found that giving such retrospective effect would be illegal and  on the concerned date they were not even borne on the cadre of ACF  and were only serving as Range Forest Officer.  He also found that in  the unamended Rule 5 which provided for method of Recruitment,  there was no 50:50 quota for the direct recruits and the promotees  which quota came to be introduced only by way of an amendment  effected to Arunachal Pradesh Forest Rules vide notification  No.FOR.391/E-A/90/32343 dated 24.9.1999 and as such even if the  respondents herein were given more than 50% posts in the cadre of  ACF, it was permissible and as such the promotions made of the  appellants herein for the first time in the year 2001 could not be dated  back by giving retrospective effect from the year 1994.   4.      In order to understand the controversy some facts would be  necessary.  All the present appellants herein started their career in  the post of Forest Rangers and after their training in the Forest  Rangers College, Kurseong, they were appointed as Forest Rangers  with effect from 7.7.1984. The post of Forest Rangers is the feeder  post for the post of ACF.  There are Service Rules for governing the  service conditions called Arunchal Pradesh Forest Service Rules.   These Rules provide, inter alia, that a Forest Ranger would have to  put in five years of service before being promoted to the post of ACF.   In that way the appellants herein had become entitled for being  considered for promotion by 1989.  They were, however, not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

promoted in the year 1989 and were in fact promoted on 10.6.2002.   However, in the meantime the respondents herein were selected after  the competitive examination and were appointed in the year 1996.   Naturally, the respondents herein were senior to the appellants in the  cadre of ACF.  The government on account of the representations  made constituted another Departmental Promotion Committee  (hereinafter referred to as the "DPC" for short) and the present  appellants were awarded the notional promotion with retrospective  effect, i.e., from December, 1994.  This order was passed on 20th  May, 2004.  Because of this order all the appellants would become  senior to all the directly appointed respondents and for this precise  reason the said order came to be challenged before the Guwahati  High Court which challenge was accepted by the learned Single  Judge and the judgment of the learned Single Judge was confirmed  by the Division Bench which has necessitated the present appellants  to come before us. 5.      Shri C.M. Nayar, Senior Advocate urged before us that the  appointments of the respondents herein were in excess of quota and,  therefore, amounted to fortuitous appointment without carrying the  seniority with such appointments.  He painstakingly pointed out that  all the appellants who were appointed in 1984 had unblemished  service and, therefore, they had earned a right after five years of  service to be considered for the promotion to the post of ACF.   Unfortunately, there was no exercise on the part of the State  Government to constitute any DPC right from 1989 till 2002 when  they were actually promoted.  It is pointed out by the learned Senior  Counsel that it was for no fault of the appellants that the promotions  were not granted to them and had such DPC being constituted in time  as was expected under the administrative norms, they would have  been senior to the present respondents who were directly appointed  only in the year 1996.  Carrying his arguments further, the learned  counsel urges that at any rate, the direct appointments made of the  respondents in the year 1996 were bound to be held as fortuitous  appointments as at the time when the appointments were made,  there were already more than 50% posts filled up by the direct  appointees.  Learned counsel takes us to Rule 5 and points out that  under that Rule there was a clear quota of 50% in case of direct  appointees while remaining 50% was to go to the promotees.  We  have been shown the position of the vacancies as occurring in 1996  from which the learned counsel buttresses his arguments that direct  appointees were occupying more than 50% posts out of the total  cadre posts of 54.  According to the learned counsel only 27 posts  could have gone to the direct appointees, but on 1.1.1996 28 direct  appointees were already occupying the posts and as if that was not  sufficient, five more persons were brought in by way of direct  appointments making the total figure of the direct appointees to 33.   This, according to the appellants, was not permissible and, therefore,  the appointments of the respondents made on 1.7.1996 were bound  to be held fortuitous appointments not carrying any seniority with the  appointment.  It is then pointed out that this position of over-crowding  by the direct appointees continued right till 2000 and even on the date  when the appellants were promoted there were 31 direct appointees  as against 27 posts which could come to their share.  From this the  learned counsel urges that it was only to allay the grievance of the  promotees that the State Government had taken a decision to  remove this disparity causing injustice to the promotees and,  therefore, their promotions were made retrospective with effect from  1992.  Learned counsel assailed both the judgments and argued that  this position was not properly viewed by both, the learned Single  Judge and the learned Division Bench and, therefore, both the  judgments were rendered erroneous and were liable to be set aside.   6.      As against this Shri L. Nageshwara Rao, Senior Advocate  pointed out that under the Rules as they existed at the time of direct  appointment of the respondents, there was no 50:50 quota between  the direct appointees and the promotees.  For this purpose he heavily

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

relies on the language of Rule 5 which is the relevant rule.  He further  points out that the said Rule 5 later one underwent a change whereby  a proviso was added thereto more particularly by notification  No.391/E-A/90/32343 dated 24.9.1999.  Learned counsel points out  that it is for the first time that 50:50 quota was introduced in between  the direct appointees and the promotees.  According to the learned  counsel atleast till the 50:50 quota was introduced, it was perfectly  possible for the government to fill up more than 50% vacancies from  any group \026 direct appointees or promotees.  Learned counsel further  went on to say that in the year 1994, the year from which the  appellants have been given the seniority, they were not even borne in  the cadre and, therefore, they could not have claimed  seniority over  and above the direct appointees who had already occupied the post  in the year 1996 itself.  Learned counsel very fairly agreed that had  there been a 50:50 quota, then there was no question of the direct  appointees overshooting the quota and in that event the direct  appointees would have had no case because they had clearly  exceeded to 27 posts which would have been available to them under  the Rules.   7.      It will, therefore, have to be found as to whether there was a  quota of 50:50 for the promotees and direct appointees and whether  the direct appointees had exceeded their quota on the day of their  appointment. 8.      For this purpose it would be worthwhile to see the language of  Rule 5 before its amendment.  Rule 5 before it was amended was as  under: "5.     Method of Recruitment: Save as provided in Rule  17, appointment to the service shall be made by the  following methods, namely: (a)     50% of the substantive vacancies which occur from  time to time in the authorized permanent strength of  the service shall be filled by direct recruitment in the  manner specified in part IV of these rules, and  (b)     The remaining such substantive vacancies shall be  filled by selection in the manner specified in Part V  of the Rules from amongst: i)      Officers who substantively hold the posts of  Forest Rangers and possess the minimum  qualification of High School or equivalent  under the Government of Arunachal Pradesh. ii)     Officers who may be considered for  appointment to the service at its initial  constitution, though not actually appointed  under Rule 7 and who substantively hold any  of the specified posts in the schedule or such  other posts connected with forestry as may be  approved by the Government of Arunachal  Pradesh for the purpose of these rules.         Provided that nothing in this rules shall  preclude the Governor from holding a vacancy  in abeyance or filling up on officiating basis in  accordance with the provisions of these  Rules."

It is this Rule that the learned counsel for the appellants uses for in  support of his contention that there is 50% quota in the cadre.  Shri  Nageshwara Rao points out that the Rule of 50% does not apply to  the whole cadre of the ACF but applies only to "substantive  vacancies which occur from time to time" in the authorized  permanent strength of the service.  Shri Nageshwara Rao points out  that from the language of Clause (a) it is very clear that there is no  mention of 50% of the cadre strength, it is only the vacancies which  occur from time to time,  contemplated in the Rules.  Learned counsel  further suggests that even in respect of the promotees the words

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

"such substantive vacancies" in Sub-Rule (b) would indicate only  the substantive vacancies which have occurred from time to time in  the authorized permanent strength of service and remained after the  vacancies are filled up by direct appointees.  Learned counsel then  points out that in the whole of the Rules as they existed before the  amendment, there is no mention of a fixed 50% quota for the direct  appointees and the promotees.  To substantiate this argument our  attention is invited to the amended Rule 5.  We find that all that is  added by the amendment is the proviso which is to the following  effect: "Provided that the posts actually filled by direct  recruitment and promotion in the Grade II, at any time  should not exceed 50:50 ration in the authorized  permanent strength of Grade-II posts, further that, nothing  in these rules shall preclude the Government from holding  a vacancy in the service in abeyance of filling it on  officiating basis in accordance with the provisions of Part  VIII of these Rules."

Learned counsel Shri Nair, however, tries to suggest that the  aforementioned addition of proviso is only by way of a clarification  and, therefore, this Rule should be viewed with retrospective effect  and it should be viewed as if quota was always there even earlier.   9.      Considering the plain language of the unamended Rule there  can be no dispute that earlier what was contemplated by Rule 5 was  only "substantive vacancies which occur from time to time in the  authorized permanent strength of service".  The Rule does not  contemplate that there shall be a separate quota for the two  categories from out of the cadre strength.  The condition of the two  categories having 50:50 strength came only by way of amendment.   When we see the plain language of the proviso that position becomes  all the more clear.  Atleast from the plain language of unamended  Rule 5 we are unable to see any quota being there for the two  categories much less in the ratio of 50:50.  On this backdrop when we  see the chart of vacancy position, it is apparent that on 1.1.1996, out  of 54 sanctioned posts 28 were already filled in by direct recruits and  15 posts were occupied by the promotees.  Thus there were in all 43  posts which were occupied and 11 posts were vacant.  It seems that  these 11 posts were to be filled and, therefore, 50% posts, namely, 5  posts as per the unamended Rule 5 went to the direct recruits and  were filled in on 1.7.1996.  For some reasons which are beyond our  imagination, the posts of promotees were never filled and remained  pending right from 1996 upto 2002.  On 24.9.1999 when the  amendments came, the position was that out of 54 posts 32 posts  were occupied by the direct appointees while only 12 posts were filled  in by the promotees.  It seems that ultimately in 2002 as many as 12  posts were filled in by promotions and right upto 1.1.2004 the posts of  the direct appointees remained at 31 without adding even a single  post obviously to honour the quota introduced in 1999.  The posts of  the promotees which had dwindled upto 9 then became 21 with effect  from 3.4.2002.  This was obvious because of the promotion.  There  can be no dispute that the government took unnecessarily long period  to effect the promotions.  Apparently, there is no reason for this with  the government.  However, the fact remains that till 2002, the  promotees were never promoted and direct appointees were already  working in the cadre on the available posts right from 1996.  Under  such circumstances, if the seniority of the direct appointees was  honoured in comparison to the promotees, we do not think there was  any error committed by the learned Single Judge or the Division  Bench.  This takes us to the question of retrospective effect of the  Rule. 10.     It was tried to be impressed upon by the learned counsel for the  appellant that Rule 5(a) would operate retrospectively as its nature  was clarificatory.  It was tried to be further impressed that even the  government has treated, right from the beginning that there was a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

quota and it was only to redress the injustice done to the promotees  that the government passed the impugned Resolution dated 20th  May, 2004.  Firstly, we must clarify that there was no evidence put  before us by the Government that it was all through treating, even  before 1999, that there was a 50:50 quota in between the promotees  and direct appointees.  Such an evidence was bound to be put before  the High Court in the first instance which was not so put.  The  exercise done on 20th May, 2004 appears to be not a suo motu  exercise on the part of the government but on the basis of the  representations made by the present appellants.  We can understand  if the government had made this exercise of 20th May, 2004 on its  own, that would have given credence to the arguments that the  government had always been treating that there was a 50:50 quota in  between the direct appointees and the promotees but that did not  happen and the government was "persuaded" to hold another DPC  on the basis of the representations and of course the advise tendered  by P&AR Department in U.O. No.409 dated 21.10.2003.  That  document is not before us and we have no way to find out as to  whether it was put before the High Court to support an argument that  the government was always under the impression that there existed a  quota.  On the other hand the DPC viewed that there were some  posts which were bound to be reserved for the Scheduled Tribes  candidates and they were bound to be treated as backlog vacancies  to be filled up as per 100 points roster and it is for this reason that the  posts were to be filled up by the appellants.  So far so good, but we  completely fail to understand that even when there were backlog  vacancies how was the government justified in giving a retrospective  effect from 2.11.1994 in four cases and from 31.12.1994 in favour of  Shri T. Tapi.  There is no justification whatsoever of giving the  retrospective effect.  We, therefore, endorse the view expressed by  the High Court that there was no necessity of giving the retrospective  effect.  11.     Reverting back to the effect of the proviso, we do not find  anywhere any such intention to apply the proviso with retrospective  effect.  In order to make a provision applicable with retrospective  effect, it has to be specifically expressed in the provision.  We do not  find such an expression in the said proviso.  Nothing had stopped the  government before amending the Rule to word it specifically, making  it retrospective.  That was not done and we are not prepared to hold  that the Rule is retrospective.  Secondly, we cannot countenance the  argument that the Rule has a clarificatory nature.  The Rule, for the  first time, creates a quota and thus crystallizes the rights of the direct  appointees and the promotees which was not there earlier.  It,  therefore, cannot be viewed as a clarificatory amendment.  Again  whether the amendment is clarificatory or not would depend upon the  language of the provision as also the other Rules.  We have  examined the Rules which did not suggest that there was any quota  existing as such.  On the other hand we see Rule 25 which is a Rule  regarding seniority and more particularly Rule 25(c).  It is apparent  from the language of the Rule that the government thought otherwise.   Rule 25(c) is as under: "The relative seniority of direct recruits and of promotees  shall be determined according the rotation of vacancies  between direct recruits and promotees which shall be  based on the quotas of vacancies reserved for direct  recruitment and promotion under Rule 5".

This language suggests that the only quota that was contemplated  was as per Rule 5 which we have already explained in the earlier part  of the judgment which suggests the 50% quota only in the  "substantive vacancies which occurred from time to time" and not the  whole vacancies in the cadre.  We are, therefore, unable to accept  the argument of the learned counsel for the appellants. 12.     Therefore, one thing is certain that the appellants did not have  right to claim a retrospective seniority particularly over and above the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

respondents who had been working in the post of ACF right from  July, 1996. 13.     This Court in a reported judgment in State of Uttranchal &  Anr. Vs. Dinesh Kumar Sharma [(2007) 1 SCC 683] has clearly held  that the seniority is to be reckoned not from the day when the  vacancy arose but from the date on which the appointment is made to  the post.  There this Court was interpreting Rules 17 and 21 of the  U.P. Agriculture Group B Service Rules, 1995 and Rule 8 of the U.P.  Government Servants Seniority Rules, 1991.  This Court disapproved  the stance taken by the High Court that the directions should have  been given not from the date of appointment but with retrospective  effect when the vacancy arose.  The following observations in para  34 are speaking and would close the issue: "Another issue that deserves consideration is whether the  year in which the vacancy accrues can have any  relevance for the purpose of determining the seniority  irrespective of the fact when the persons are recruited.   Here the respondent’s contention is that since the  vacancy arose in 1995096 he should be given promotion  and seniority from that year and not from 1999, when his  actual appointment letter was issued by the appellant.   This cannot be allowed as no retrospective effect can be  given to the order of appointment order under the Rules  nor is such contention reasonable to normal  parlance.  This was the view taken by this Court in  Jagdish Ch. Patnaik vs. State of Orissa [(1998) 4 SCC  456]". (Emphasis Supplied)

14.     Lastly, the High Court has specifically rejected the claim of the  appellants on another ground, namely, that the appellants were not  borne in the cadre of the ACF on the date from which they have been  given the seniority.  We are in complete agreement with the High  Court, particularly in view of the decision of this Court reported in  State of Bihar & Others vs.  Akhouri Sachindra Nath [(1991) Supp.  1 SCC 334] which decision was reiterated in the case of State of  Bihar & Ors. Vs.  Bateshwar Sharma [(1997) SCC 424].  We do not  want to burden this judgment with further reported decisions.   However, the same view has been taken in another reported decision  of this Court in Uttranchal Forest Rangers’ Asson. (Direct Recruit)  & Ors. Vs. State of U.P. & Ors [JT 2006 (12) SCC 513] where in  paragraph 18 this Court has taken a view that no retrospective  promotion or seniority can be granted from a date when an employee  has not even been borne in the cadre so as to be adversely affecting  those who were appointed validly in the meantime.   15.     There is still one another reason for our concurring with the  High Court’s judgments.  There cannot be any dispute that all through  right from 1996 when the respondents were appointed till 2002, the  appellants were working under them in capacity of the Range Forest  Officers, the appellants came in those posts and started exercising  the powers and duties of the post of ACF only from 2002.  It would  be, therefore, very unfair to allow the appellants to steal a march over  the direct appointees under whom they worked practically for eight  years.  On this ground we concur with the High Court that at this point  of time there would be no justification in upsetting the whole balance. 16.     We, therefore, find no force in the appeal and dismiss the same  but without any orders as to costs.