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CASE NO.: Appeal (civil)  865-867 of 2005

PETITIONER: R.S. Jayakumar & Ors

RESPONDENT: State of Kerala & Ors

DATE OF JUDGMENT: 12/10/2007

BENCH: A.K..MATHUR & D.K. Jain

JUDGMENT: J U D G M E N T With:

Civil  Appeal  No. 871/05, Civil Appeal No. 868/05 and  Civil Appeal No. 869-870/05

A.K.MATHUR,J.

1.              These appeals are directed against the  orders dated  27th November, 2002 in  WA No. 2830/2002 and 7th November, 2002 in  WANo. 2646/02 & 2690/2002 passed by the Division  Bench of the  Kerala High Court whereby the Division Bench has upheld the   order passed by the learned Single Judge and dismissed the Writ  Applications. The writ appeal was filed by  the appellant as  well as State of Kerala. Hence, the present appeals.   2.      For the convenient  disposal of these appeals,   facts  given in the case of  R.S. Jayakumar are taken into  consideration.       The promotion as  a Ranger in the Kerala Forest Subordinate  Service  from among Departmental candidates i.e. Deputy Rangers  and Foresters  was provided by  the  Kerala Forest Subordinate  Service Rules (hereinafter referred to as the Rules) framed  under proviso to Article 309 of the constitution of India.    Rule 2  prescribes  the mode  of appointment of  Rangers which  is partly by Direct recruitment (25%), partly by appointment of  Forest Apprentices (25%), partly by promotion of Deputy  Rangers/Foresters (25%)  who had undergone Foresters\022 Training.  3.      We are concerned with the  third category i.e. the  appointment of Rangers by way of promotion  of  Deputy  Rangers/Foresters.  The Rangers\022 Training  has to be undergone  in the Forest Colleges  at Coimbatore  or Dehradun   for which   the departmental candidates have to be selected by the  Kerala  Public service Commission (hereinafter referred to as the   KPSC).  Such selection is made in accordance with  Rule 10  of   the Rules, namely (a)  that the qualification prescribed by the   Government of India for admission to the Rangers\022 Course , (b)  that the candidate should have passed the  qualifying  examination of  the  KPSC. By notification dated 30th May, 2005,  the KPSC  invited applications for selection    to the Forest  Rangers\022 Course 2001-2003.   

4.      The last date for receipt of application was 26th July ,  2007.  The number of vacancies were notified  as  5  (provisionally) subject to change according to the  allotment of  seats by the Government of India.        The  petitioners/appellants  (herein)  applied for the course along with other  candidates  who were  on probation and were not approved probationers/full  members of the service.  A certificate was given by the

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Controlling Authority in favour of the candidates that they   were approved probationers (though they were  not).  The  select  list of 34 candidates prepared by the KPSC included  ineligible  candidates who were probationers  and not approved probations or  full members of service.   As  a result, the appellants  who  were approved probationers could not be selected for the   vacancies notified for  the course 2001-2003 and other persons  who were probationers were selected.   Therefore, this action  was challenged by filing a separate writ petition by the  appellants and others. A counter affidavit was filed  in the  main writ petition No. 33355/2000 by the State and  State  accepted the contention of the appellants herein  and stated   that  the selection and inclusion of the contesting  respondents  in the select list was not legal or justified.   The KPSC  also  attempted to justify  its list stating that the inclusion of  these  candidates were on the basis of  the certificate issued  by the Controlling Authority.   Learned  Single Judge after  hearing both  the parties dismissed the writ petition and  held  that  it is only for the purpose of sending the  selected  candidates for training and not for  promotion or appointment.    The Division Bench affirmed the order of  the learned Single  Judge .  Hence the present appeals. 5.      We have heard learned counsel for the  parties and perused    the records. Only limited question which is called for our   consideration is  whether the respondents, the selected  candidates  were approved probationers or   full members  in  respective categories or not? 6.      Before we proceed to decide the question, it would  be  relevant to refer to necessary provisions  of the  Kerala Rules  bearing  on the subject. 7.      Rule 2 of the Rules deals with the appointment, which reads  as under:                  \023(1) \005\005\005  (2) \005\005\005  (3) Promotion of Dy. Rangers and Foresters trained  as Rangers in either of the Regional Forest Ranger\022s  College  (4) Promotion of Dy. Rangers and Foresters who have   not been tranined as Rangers but have had training  as Foresters;            Note: :25% of ;the vacancies shall be filled up  by direct recruits who have satisfactorily   completed  the practical training, 25% by  appointment of Forest Apprentices who have  satisfactorily completed training in the Forest  Colleges at Dehra Dun or Coimbatore and the  practical training: 25%  by promotion of Dy.  Rangers/Foresters who have undergone Rangers  training and 25% by promotion  of Dy.  Rangers/Foresters who have undergone Foresters  training. Provided that when required number of suitable  candidates for appointment to the quota fixed for  direct recruitment are not available such vacancies  shall also be filled up by appointment of Forest  Apprentices under method (2)  Note 2: Direct recruitment and selection of Forest   Apprentices and Deputy Rangers/Foresters for  training as rangers shall be made by the Kerala  Public service Commission. Note 3: No senior trained Foresters/Deputy Rangers  will be superseded by a Junior Deputy  Ranger/Forester who has not received  Ranger\022s  Training on the ground that 25% posts of Rangers

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earmarked for trained Deputy Rangers/Foresters have  already been filled up.  If suitable trained Deputy  Rangers/Foresters are not available for promotion,   the vacancies allotted to them can be filled  provisionally under Rule 31(a)(i) of the General  Rules for the  Kerala State and Subordinate Services  by promotion of Deputy Rangers/Foresters who have  undergone Foresters\022  training in a Regional  Foresters training in a Regional Foresters School.   Such persons shall be  replaced immediately on  persons trained as Rangers becoming available.

Note 4:  A candidate who has secured that 1st Rank in  the Regional Forester\022s School and has put in more  than ten year\022s service  in the Department of which  5 years are spent as Forester will be considered  eligible for promotion on the quota allocated for  promotion of Deputy  Rangers and Foresters trained  as Rangers.

7.              Rule 6  deals with the other qualifications: which reads as  under: \0236. Other qualifications:  No persons shall be eligible  for appointment to the Class,  Category or Grade  specified in column (1) and by the method specified in  column (2) of the Tab le below, unless he possesses the  qualification specified in the corresponding entry in  column (3) thereof:-      TABLE Class,  Category & Grade  (1)       Method

(2) Qualification

(3) 1.Rangers Direct Recruitment Xxxxx

Appointment  from Forest  Apprentice Must possess the  qualification prescribed  by the Government of  India from time to time  for admission to the  Rangers Course.

Promotion Must possess the minimum  general education of the   SSLC Std. prescribed in  the Schedule to the  General Rules and must  have undergone either  Forester\022s training or  Rangers Training.

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Deputy  Rangers Promotion of  Foresters 1.      Must possess the  minimum general  educational  qualification of  SSLC Std. prescribed  n the schedule to  the General Rules  and  2.      Must  have undergone  training in a  Regional Forester\022s  School. Foresters  who have put in 15  years of service and  who are over 35  years of age shall  be exempted from the  Forester\022s training.

8.      Rule 7 deals with the tests for appointment to the post of   Rangers and Deputy Rangers:                                                  \024Table Category                                                        Tests _________________________________________________________ Rangers &                      : Forest Test for      Executive and   Forest Apprentices:     Controlling Officers (comprising                                        3 papers namely:-                                                1. General Law                             2. Forest Acts and Rules and                                     3.Forest Code and Deparmental                               Rules.                               II. Account test (Lower)

3.      Deputy Rangers,           : Forest Test for clerical and    Foresters and Curater      protective staff (comprising two                                                                  papers namely:                                             1.      Forest Acts and Rules, and  2.      Forest Code and Departmental Rules.

Note: The Forest Officers; Examination (forest Law, forest  Revenue, Office Procedure, and Account Matters); The Forest  Departmental Test and the Account Test for Executive  Officers, Part I of the  Government of Madras will be treated  as sufficient Qualification in lieu of the test prescribed  above in the case of Officers allotted to the Kerala State on  1.11.1956 consequent on the Reorganisation of States.\024

9.      Rule 8 deals with the  probation which is reproduced as  under:         \0248. Probation \026Every person appointed to a category  or class shall, from the date on which he joins duty, be  on probation in such category or class as follows:-        1.      if appointed by direct recruitment or by

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transfer, for a period of 2 years on duty within  a continuous period of 3 years, and  2.      if promoted, for a period of one year on duty  within a continuous period  of  2 years.

The period of probation prescribed above excludes the  period of training, if any.\024

10.     Rule 10  deals with the promotion of Deputy  Rangers and  Foresters, as Rangers, which is reproduced as under: \02310. Promotion of Deputy Rangers  and Foresters, as  Rangers,- (a) Selection of Departmental candidates for  deputation to the Rangers Course shall be made in  accordance with the following rules:- (1) The qualifications prescribed for the Forest  Subordinate from time to time by the Government of  India for admission to the Ranger\022s  Course will be  followed. (2) The candidate should have passed the qualifying  examination held by the Kerala Public Service  Commission. Note: The final selection from among those who have  passed the qualifying examination shall be made by the  Public Service Commission on the basis of merit after  conducting a physical test: Provided that as between candidates, of fairly equal  merit, seniority in the Department shall be  determining factor. (b) A candidate selected shall be deputed to the  College for training for a period of not more than two   years at govt. cost. ) During the period of  this preliminary training and  his training in the  Forest College, he shall be paid  his pay and allowances and travelling allowance  according to rules. d) He shall, before he is deputed to the College,  execute a bond with two sureties for Rs. 8000/- each,  and also a separate agreement in such forms as may,  from time to time, be prescribed by the State  Government undertaking to serve the said Government in  the Forest Department for a period of five years after  successfully completing the training at the College. (e) The period  of  training shall be counted as  service qualifying for leave, increment, pension, etc. (f) The seniority among the departmental candidates  appointed as Rangers shall be determined according to  the rank obtained in the Rangers College as provided  in rule 9 (A). to (g).\024

11.     In pursuance of Rule 10(2), the Kerala Public Service  Commission undertook the selection of the candidates for  sending  them for Rangers\022 Course and in pursuance thereof a  notification dated 30.5.2000  was issued and in that the cut  off date was 26th July, 2000.  The relevant portion of  the   notification reads as under: \023xxxxxxx  xxxxxxx 7. Qualification:    Candidate must have passed the Intermediate Science  Examination (10+2) of any recognised University or  State Education Board or its equivalent with two or  more of the following subjects: Mathematics,     Physics, Chemistry, Botany and Zoology xxxxxx \023

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12. It further lays down that the  Forester/Deputy Ranger  standing first in the final examination in the State shall be  exempted from the  condition  regarding the competitive  examination as stipulated in para 8 of the notification. Para 8  of the notification reads as under :-         \0238. Competitive Examination: Candidates will be  required  to sit for a competitive examination to be conducted by the  Kerala Public Service Commission on the following subjects:-         (i) English (Essay, Precis Writing, etc.         100 marks.      (ii) General knowledge                              100 marks      (iii)Any two papers out of the following    200 marks each

            subjects- Maths, Physics, chemistry, Botany,              Zoology, Forestry, Geology, Agriculture, Civil               Engineering, Mechanical Engineering, Electrical           Engineering and Chemical Engineering.

       The stands of examination in the above subjects will be of  Intermediate of Science or equivalent.   xxxxx         The minimum marks to be obtained for each paper is 40%.

Note:         A Forester/Deputy Ranger standing first in the final  examination in the State Foresters\022 training school shall be  exempted from the conditions regarding the Competitive  examinations mentioned in Para 8. He should however possess the  minimum educational qualification of SSLC.\024

13.     Another relevant i.e. Clause 11 of  the notification   reads as under: \02311.  Health Certificate and Service Certificate:-

The candidates shall produce Medical Certificate  issued by a Medical Officer not below the rank of  Civil surgeon/Chief Medical Officer of Health,  testifying the candidates sound health and general  physical fitness for rough out-door work in the Forest  Department. Notes:- Physically handicapped candidates are not  eligible to apply for this training course.  The  candidates holding the post of foresters/Deputy  Rangers in the Kerala Government Service on a regular  basis and who are approved probationers/Full members  in the respective category shall submit the  application alongwith a service certificate showing  the service particulars of the applicant in the form  appended.\024

14. As per this note, the candidates who were approved  probationers / Full Member of service  in respective category  shall submit  the application alongwith  the  service   certificate showing  service particulars of the applicant in the  form appended. The form already appended  reads as under: \023SERVICE CERTIFICATE TO BE PRODUCED BY THE DEPARTMENTAL   CANDIDATES ALONGWITH  THE APPLICATION FOR FOREST RANGERS COURSE  2001-2003.

1.      Name of  candidate                      : 2.      Post now held                           : 3.      Scale of pay and  pay as on         the  date of application                : 4.      Department with circle          : 5.      Total Service in Forest Department

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       with details regarding posts held         scale of pay, duration, etc.    : 6,      State whether a probationer/    Approved probationer/full member:\024     15.     Now reading of the  form  as  mentioned above and alongwith  Item No. 6 of the form makes it clear that the persons who  were  eligible  to apply for this test  for undergoing  Rangers  training at Dehradun  must be either approved probationers/Full  Members of the service.   An approved probationer  though has  not been defined  in these rules but it has been defined in the   Kerala State Subordinate Service Rules, 1958   Sub-Rule 3 of  rule 2 defines  \023Approved  probationer\024  reads as under: \023Approved probationer\024 in a service, class or category  means a member of  that service, class or category who has  satisfactorily completed his probation and awaits  appointment as a full member  of such service, class or  category.\024

16.   A member of a  service has been defined in Clause 9  which  reads as under:- \023Member of a service\024 means a person who has been appointed  to that service and who has not retired or resigned, been  removed or dismissed, been substantively transferred or  reduced to another service, or been discharged otherwise than  for want of a vacancy.  He may be a probationer, an approved  probationer or a full member of that service.\024

17.  In  this legal back-ground, the question now emerges is  whether a person who has been selected  is in fact approved  probationer or not?  As mentioned above, in order to become  the  approved  probationer one has to undergo training.   If   appointment by  direct recruitment or by  transfer  shall be  on  duty for the period of two years on duty within a continuous  period of  three years and if permitted for a period of one year  on duty within a continuous period of  2 years.  This  includes   the period  of   training, if any.    In order to  get   confirmation, one has to undergo certain required tests i.e. he  has to pass certain departmental  tests as laid down in the  Rules, thereafter he acquires an eligibility for the   confirmation.   In case, he  fails to pass the  desired tests   as laid down in the rules, then he will not be eligible for  confirmation.    The tests are provided in Rule 7, i.e., he has  to undergo clerical test comprising of papers namely, Forest  Acts and  Rules and  Forest Code and Departmental Rules.  After   completing successfully these tests then alone he acquires the  eligibility   to be confirmed  on the post.    In case he fails  to pass then he cannot be  confirmed on the post.  The approved   probationer as has been defined in the Rules of 1958  clearly   says that the approved probationer means the Member of  that  service or who has satisfactorily completed its probation  and   awaits  appointment as a full member  of  such service.   Therefore,  in order to become  an approved probationer it is  not simple,  one has to successfully pass all departmental  tests.   The probation is of duration of two years out of three  years of  continuous service and  he should successfully pass   departmental   test then of course, he can be eligible for  promotion and become a member of service.  As per the circular  issued by the KPSC, the persons eligible for tests are  persons   either who have  come on the category of approved probationer or    they are the member of the service.    It is the admitted  position that the respondents were not appointed either as  approved  probationer or as  a member of the service  but they  were only probationers and  permitted to appear  in the  selection for  undergoing Rangers\022 training at Dehradun  by the

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Commission.   Therefore, the  grievance of  appellants   was   genuine  that these persons who were not eligible to appear in  the tests were permitted to appear  on the basis of   so called  certificate issued by the  controlling authority.  In fact the   Public Service Commission  has justified their appearance on the  basis of so called certificates given by the Controlling  authority but that certificate which was issued by the  Controlling authority was not correct.  The State of Kerala in  its affidavit  in  opposition  has categorically stated that  certificate was wrongly issued by  controlling authority.  But  learned single Judge  proceeded to decide the matter treating  that since they were probationers and there is no such provision  in the Rules that for permitting to appear in the Public Service  Commission tests one has to be an approved probationer.   Therefore, the learned Single Judge held   that the   probationers were  eligible to be included in the select list   on their successfully qualifying competitive test. We regret,  this approach was totally erroneous on the part of the learned  Single Judge as well as of the Division Bench.   The  Public  Service Commission once laid down the eligibility  being an  approved probationer or member of service, then each incumbent  has to fulfil that eligibility or  otherwise he will not be  permitted to appear in that test.  The task of selecting  the  persons for  training is entrusted to the Public Service  Commission as required  under  sub-Rule 2 of Rule 10 & the  Public Service Commission laid down the Condition of  eligibility, one has to abide  by it. There cannot be  any  departure from that. The Public Service Commission was competent  body to make the selection of persons for training and, then the  selection has to be made as per the condition  in  the  advertisement.    It is not correct to say that since rules do  not  say that only approved probationers  and service members  shall be eligible  for test, therefore, condition laid down  by  the Public Service Commission is alien to Rules.  The view taken  by the  Courts below is absolutely erroneous.  Once the  condition of selection is laid down then all the candidates have  to fulfil  the same and no departure from that is possible. One  who lays down the procedural sword then same shall be slain by  that. Once a body has been entrusted the job  of selection &  lays down the criteria  which is not contrary  to the  Rules, in  that case  only eligible candidates  should be selected as per  conditions laid down by the selection body. The KPSC has laid  down the  eligibility  that  candidates should be approved  probationers or members of service,  which is not contrary  to  Rules, as Rules, nowhere lays to the contrary. 18.     There appears  to be  a rationale  behind  it  if incumbent  is only probationer & he is not confirmed  on his failure to   qualify departmental tests then he has to be discharged from  service.  If the candidate successfully  passes  the  departmental examination and  vacancies are available then he  can straightway be confirmed & on confirmation he becomes the  member of the service.   In case vacancies are not available  then after successfully passing of examination he will be  treated as approved probationer.   Once he is  approved   probationer, it means that he has acquired eligibility to be   confirmed as soon as vacancies are available.  But if one is not  a member of service  or approved probationer then  just because  he is probationer he cannot be considered for sending on the  training.  Therefore,  the  idea behind that incumbent be  a  member of a service  i.e. substantive or permanent or who has  acquired eligibility for being appointed as permanent member  should be  sent for training appears to be well founded.  As the  State Exchequer  has to spend money  for training and  they  cannot afford  to spend money on a person who is  probationer/temporary.   There was a rationale behind this

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condition and is not inconsistent with Rules.    In this view of  the matter,  the decision of  learned Single Judge and the  Division Bench cannot be sustained. 19.  Our attention was invited to the case of  Jose Mathew who  is also  respondent herein. He belongs to exempted category from  the competitive test as he stood first in the forester training.   He need not to go for the  competitive test because of the  Clause 8 of the Note of the  advertisement. 20.     However, the conditions laid down by the Public Service  Commission in their advertisement  have to be fulfilled by all   the candidates. As it is more than apparent  that the  respondents except Jose Mathew  did not fulfil the condition  required in the advertisement issued by the Public Service  Commission for sending the candidates for training at Dehradun.    Therefore, their selection  cannot be sustained.  But they were  sent for training and they have undergone the training and   sufficient amount has been spent on their training.  But they  were not eligible to be sent for  the training. It is declared  that they will not be entitled to avail benefit of  their  training qua the petitioners/appellants.   We allow these  Appeals and set aside the  order of the High Court   & hold that  the  selection of the respondents for sending them  for training  was bad and that cannot be used in the service career vis a vis   the petitioners/appellants.    However,   the training undergone  by them cannot be withdrawn but they will not get the benefit of  it vis a vis the petitioners/appellants  and  this will not  permit them to have  a march over the petitioners/appellants. 21. All the appeals are accordingly allowed with no order as to  costs.