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PETITIONER: STATE OF HIMACHAL PRADESH

       Vs.

RESPONDENT: SHRI J.L. SHARMA & ANOTHER

DATE OF JUDGMENT:       18/11/1997

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK. J.      Delay condoned.      Leave granted.      This appeal  by special  leave is  directed against the judgement of  the Himachal  Pradesh Administrative Tribunal, Shimla dated  16th December,  1996 passed in O.A. No. 109 of 1987. The  respondents are promoted officers to the Himachal Pradesh Forest  Service Class  II. They filed an application before the Tribunal for a direction that the direct recruits to the  Forest  Service  Class  II  are  entitled  to  their seniority form the date of their joining after completion of the training  and not  from the  date of  their joining  the training at  the Forest  Research Institute  in terms of the Notification dated  30th April,  1986. The  Tribunal by  the impugned judgment having granted that relief and having held that the  direct recruits are only entitled to get pay while continuing under  training in  the Forest Research Institute and will  not get  the benefit  of seniority  vis-a-vis  the promotes, the State has come up in appeal. The question that arises for  consideration, therefore,  is whether  a  direct recruit will  be entitled  to count  the training period for the purpose  of his  seniority in  the service  or not?  The answer to  this  question  will  depend  upon  the  relevant service rules  which govern the conditions of service of the employees in a particular state.      The learned  counsel appearing for the appellant- state contends that the Rules framed by the Governor under proviso to  Article   309  of  the  Constitution  dealing  with  the conditions of  service in respect of Himachal Pradesh Forest Service (Class  II) is  called the  Himachal pradesh  Forest Service  (Class   II)  recruitment   promotion  and  certain conditions of Service Rules, 1966. Rule (4) thereof provides that the  method of  recruitment to  the post  in  the  said service,  age   limit,  qualifications   and  other  matters connected therewith shall be as specified in columns 5 to 18 of the  said schedule.  Thus the  Schedule itself  becomes a part of  the statutory  recruitment  rules  determining  the conditions of  service. By  Notification dated  30th  April, 1986 Schedules  to the Rules were amended and in column (10)

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the following provision was inserted:      "The   candidates    selected   for      training   at    Forest    Research      Institute and colleges, Dehradun or      at any  other  place,  shall  while      undergoing the  training be treated      as ’in service’ candidates from the      date  of   joining  the  Institute.      During the  period of training, the      candidates shall receive pay in the      lowest stage  of the  pay scale  of      HPFS-II applicable to the service &      allowances    admissible    thereon      during the  first year  and at  the      second stage  of that  scale during      the second year;      Provided that  the second increment      shall be granted only when a direct      recruit has  passed the  prescribed      examination (s)  from the concerned      Institute/college."      In view  of the  amended provisions  of the Recruitment Rules, the  training period of a direct recruit will have to be treated  as ’ in service’, and therefore, the said period necessarily will  have to  be counted  for  the  purpose  of determining  the  seniority  of  a  direct  recruit  in  the service. The Tribunal, according the learned counsel for the appellant,  was  in  error  in  interpreting  the  aforesaid provision  of  the  Rules.  In  support  of  his  contention reliance has  been placed on a decision of this Court in the case of  R.S. Ajara & others v. State of Gujarat and others, 1997(3) SCC  641. Mr.  Sharma, the learned counsel appearing for the  promotes - respondents, on the other hand contended that the  Rules read  as a  whole clearly  indicate that the amended provisions merely conferred a right upon a candidate joining the  Institute for training to get pay in the lowest stage of  the pay  scale of  Himachal pradesh Forest Service Class II  and the said training period cannot be counted for the purpose  of determining  the  seniority  of  the  direct recruits. According  to the  learned counsel, if column (10) of the Rules is interpreted to mean that the training period of a  direct recruit  also be counted for seniority then the said interpretation  will be  repugnant to the several other provisions of  the Rules  and it  will not  be  possible  to harmonize the  inconsistencies. The  learned counsel further contended that  in view  of the  decision of  this Court  in Prafulla Kumar  Swain v.  Prakash Chandra  Misra and others, 1993 Supp (3) SCC 181, which is a three Judge Bench Judgment of this  Court, the  training period  of  a  direct  recruit cannot be  counted for  determining seniority  of the direct recruits and  it merely  specified the  monetary  emoluments which a  selected candidate  would get  during the period of training. They  do not  become members of the service during the period  of training  but merely treated as ’in service’. This is  also apparent  from the letters issued by the State Government to  the successful candidates indicating that the officers shall  be on probation for two years on joining the Department of  the Forest  Farming  and  Conservation  after completion of  their S.F.S.  course  from  their  respective batches commencing  from 1.4.  1985, 1.11.1985 and 1.4.1986. The learned  counsel further  urged that  column (7)  of the Schedule clearly  provides that  before becoming a member of the  service,   a  direct  recruit  has  to  obtain  certain essential qualifications  one of them being a Diploma course at the  Forest Research  Institute and  College, Dehradun or

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its equivalent.  This being  the position  a direct  recruit cannot be  said to  be a  member of  the service even before obtaining the  essential qualifications,  and therefore, the training  period  cannot  be  counted  for  the  purpose  of seniority. In  this connection,  the learned the judgment of this Court in A.N. Sehgal and others v. Raje Ram sheoran and others, 1992  Supp (1)  SCC 304.  It was  further urged that under the Rules even a direct recruit is required to undergo probation for  a period  of two  years, and therefore, until successful completion  of the said probation period there is no appointment  to the cadre and consequently no question of counting the  training period  for the purpose of seniority. In this  view of  the matter,  the counsel  urged  that  the Tribunal rightly disposed of the Application by holding that the training  period of direct recruits will be treated only for the  purpose of  getting pay  and not for the purpose of seniority.      In view  of the  rival submissions  at the Bar the only question that  arises for consideration is as to what is the correct  interpretation   of  Column  (10)  of  the  Amended Recruitment Rules  which statutorily  declares the period of training to  be ’in  service’. Under  the Constitution under Article 309  the Legislature  has the  power to regulate the recruitment,  and   conditions     of  service   of  persons appointed, to  public services  and posts in connection with the affaires  of the Union or of any State. Under proviso to Article 309  the president in case of Union and the Governor in case  of  a  state  has  been  empowered  to  make  rules regulating the  recruitment and  conditions  of  service  of persons appointed  until provision in that behalf is made by or under  an Act of the appropriate Legislature. In exercise of  such   power  under  the  proviso  to  Article  309  the recruitment Rules  to the  Himachal Pradesh  Forest  Service Class II  has been  made and  the said  Rules also  has been amended.  The  Amended  rules,  therefore,  is  a  competent legislation determining  the service  conditions of  persons recruited to  the Himachal  Pradesh Forest Service Class II. In R.S.  Ajara’s case  (supra), this  Court  considered  the question as  to whether  training period of a direct recruit can be  taken into  account for fixation of seniority in the cadre. In that case, the statutory Recruitment Rules did not at all  deal with  the question of seniority of the officers directly recruited  and promotes.  The Government,  however, passed a  Resolution dated  31.1.1992 declaring therein that the  training   period  of   directly  recruited   Assistant conservators of  Forests in  Gujarat State  Forest  Service, Class II,  shall be  taken into  account for the purposes of seniority. This Court considered the aforesaid resolution of the Government  and came to hold that since in the statutory Recruitment Rules there is no provision for determination of inter   seniority between  the promotes  and direct recruits and there  being no  provision  which  can  be  said  to  be contrary to  the aforesaid  administrative resolution of the State Government,  the resolution  must be  held to be valid and the  period during  which  a  direct  recruit  undergoes training can  be taken  into  account  for  determining  his seniority in  the cadre of class II Forest Service. The case in hand  is a much stronger case than the case which was for consideration before  this court  in R.S. Ajara since in the present  case   the  statutory   Recruitment  Rules   itself contained the  stipulation that the training period shall be treated to  be ’in  service’. We  are unable  to accept  the interpretation  given   by  the   Tribunal  to  the  amended provisions of  column (10)  of the  Rules to the effect that the training  period of direct recruits will be treated only

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for the  purpose of  getting pay  and not for the purpose of seniority. If  really the legislative intent would have been to grant  pay to  the candidates  while on  training then it would not  have  been  necessary  to  indicate  that  "while undergoing  the   training  be  treated  as  ’  in  service’ candidates from  the date  of joining  the  Institute".  The Language of  Column (10)  as amended  by the Third Amendment Rules of  1986 is  clear and  unambiguous and  unequivocally indicates that  the period of training shall be treated as ’ in service’.  We do not find any prohibition or restrictions in the  statutory rules  prohibiting the ’in Service’ period for being  counted for  the purpose of seniority. This being the  position   in  our   considered  opinion  the  Tribunal committed serious  error of law in holding that the training period will  be treated  to be  ’in service’  only  for  the purpose of getting pay and not for the purpose of seniority. No such  limited interpretation  can be given to the express language used in column (10) and on the other hand on giving a full  effect the  provisions of Column (10) the conclusion is irresistible  that  the  service  and  will  necessarily, therefore, be  counted  for  the  seniority  of  the  direct recruits.  The   on  which   the  learned  counsel  for  the respondent relied  upon is  of no  assistance inasmuch as in the said  case the  Regulation 12 (c) in unmistakable  terms had provided  that the  training period  will not  count  as service under  Government and  service will  count only from the date  of appointment  to the  service  after  successful completion of  the course of training. In fact the aforesaid decision has  been duly noticed by this Court in RS. Ajara’s case  and   on  account   of  the  distinctive  features  of regulation containing  a prohibition  it has  been held that the decision  is of  no application. We have also considered the submissions  of the  learned counsel  for the respondent that such interpretation of ours would be repugnant to other provisions of  the  Recruitment  Rules  but  on  a  thorough scrutiny of  the Rules  we do  not find any repugnancy which can be  said to occur on account the interpretation given by us to  column (10)  of the Schedule and other columns in the Schedule. We  have also  carefully gone through the decision of this  Court in the case of A. N. Seghal (supra) and we do not find  anything stated  therein contrary  to what we have indicated in the present case in interpreting the provisions of the  Recruitment Rules determining the service conditions of the  employees of  the Himachal  Pradesh  Forest  Service Class II.  In the  aforesaid premises  the impugned judgment and order  of the  Tribunal is set aside and O.A. No. 109 of 1987 stands  dismissed. it  is held that the training period of the  direct recruits shall be counted for determining the seniority in  the service provided of course the said direct recruit successfully  completes the  training  and  then  is absorbed in  Class II Forest Service. This appeal is allowed but in the circumstances there will be no order as to costs.