@JUDGMENTTAG-ORDER
Dipak Misra, J.
The Petitioner, an Assistant Conservator of Forest (Junior Scale), who stood retired on 31-7-1991 featured/- in the gradation list of Assistant Conservator of Forest (confirmed) Annexure-A/2 at serial No. 99, as on 1-4-1991. The Petitioner as set forth, was entitled for the senior scale with effect from 9-1-1982 after six years of his first appointment in the State Forest Service as an Assistant Conservator of Forest 9-1-1976. The Petitioner is also entitled for selection grade after completion of 10 years of total service from his appointment in the State Forest Service with effect from 9-1-1986.
As pleaded, the Respondent vide order dated 23-11-1992. Annexure-A/1. sanctioned senior scale to the Petitioner with effect from 1-5-1990 instead of 9-1-1982. Being aggrieved by the said action of the Respondent the Petitioner submitted a representation on 5-4-1993. Annexure-A/3 to the competent authority for redressal of his grievances. It is contended that prior to 1-4-1981 in the cadre of Extra Assistant Conservator of Forest (subsequently designated as Assistant Conservator of Forest) 10% post were of selection grade and pay-scale of the same was Rs. 425-900 and Rs. 900-1100 respectively. In pursuance of the recommendations of the Chaudhary Pay Commission the selection grade post of the said cadre was increased to 20% and pay-scale of the same was increased to Rs. 1000-1920 and Rs. 1800-2100 respectively. Chowdhary Pay Commission recommended three tier pay-scale for Deputy Collectors and Deputy Superintendent of Police of State and the State Government accepted the same as Junior Scale: Rs. 1000-1920 (45%). Senior Scale Rs. 1370-2100 (40%) and Selection Grade: Rs. 1860-2400 (15%). The Department of Forest also accepted the above situation as is evident from ''Sankshepika'' dated 13-3-1986. Annexure-A/4 for providing opportunities for promotion to Assistant Conservator of Forests in three tier pay-scales as of Deputy Collectors and Deputy Superintendent of Police were proposed. It was also proposed to keep the 40% posts in Senior Scale and 15% posts in Selection Grade having the pay-scales of Rs. 1370-2100 and Rs. 1860-2400 respectively. In the proposal it was stipulated that opinions have been received from the General Administration Department and the Finance Department. It has been opined by the General Administration Department that having parity with the State Civil Service and State Police Service a three tier pay-scale for State Forest Services has to be considered for the purpose of sanction. Three tier pay-scales have to be sanctioned in accordance with the terms of the State Civil Services and State Police Services so that parity could be maintained. The Finance Department did not have any objection in providing three tier pay-scales to the State Forest Services like Deputy Collectors and Deputy Superintendent of Police.
As set forth, on 30th March, 1986 the Cabinet took the decision on the said proposal and ordered that that three tier salary structure would be made applicable from the same date which was extended to the salary of State Civil Services and State Police Services. The Forest Department in compliance with the abovementioned decision of the Cabinet vide its Circular No. F-7/1/85/10-1. dated 19-4-1991. Annexure-A/5 issued an order for implementing three tier pay-scales to the Assistant Conservator of Forest cadre of State Forest Service. By virtue of the same the Junior Scale became Rs. 1000-1920 with effect from 1-4-1981, Senior Scale Rs. 1370-2100 with effect from 14-10-1982 and the Selection Grade Rs. 1860-2400 with effect from 1-4-1981.
It is urged in the petition that recommendations of the Chaudhary Pay Commission became effective from 1-4-1981 and the pay-scales that were applicable to the Deputy Collectors and the Deputy Superintendents of Police were also applicable from the same dates. Reliance is placed on the Cabinet decision dated 30-3-1986 to implement the abovesaid pay-scales to the Assistant Conservator of Forest. Cadre of State Forest Service from the date when the same were made applicable to Deputy Collectors and Deputy Superintendents of Police from 1-4-1989 instead of 14-10-1982 so that uniformity is maintained. In this context it is submitted that the amendment incorporated in the M.P. Forest Service (Recruitment) Rules, 1977 vide Notification dated 3-3-1990 requires to be amended specially to change the date of applicability.
As per the recommendations of the Choudhary Pay Commission Deputy Collectors and Deputy Superintendents of Police were entitled to receive Senior Pay-scale after rendering 8 years of service and after 4 years and after rendering 12 years of total service were entitled to receive Selection Grade. Amendments were made to that effect in State Civil Service, Classification, Recruitment and Service Conditions Rule, 1975 vide GAD Notification No. B-1(231)-82-2-EK, dated 20-6-1984. Similar provisions were incorporated in Rules 19 and 20 of M.P. Police (Gazetted) Recruitment Rules, 1977 vide Notification No. 1(B)-31-86-B(4)-Do, dated 27-1-1988 of Home (Police) Department. In fact, the same has not been done but the Senior Scale and Chaudhary Pay-scales have been granted after completion of 6 years of service and Selection Grade after 10 years of total service that is after 4 years of getting senior scale. This fact has been admitted by Dr. Ishwardas in his report dated 7-11-1970.
A reference has been made to the recommendations of Dr. Ishwar Prasad to highlight the senior scale is payable after completing six years of service and selection grade be made after 10 years of total service but the State Government did not think it justified and practicable and made provisions namely. M.P. Pay-scale Revision Rules. 1990. The rules were notified by Notification No. D-38-R-Ek-Char-90. dated 4-2-1990. Subsequent to the said notification vide Notification No. F-2-14-89-Dus-1, dated 3-3-1990. a further notification was issued carrying out the amendment in the Rules 23A and 23(ka). It is contended that the said rules are contrary to the provisions of M.P. Pay-scale Revision Rules, 1990. It is contended that the Petitioner is entitled for senior scale after 6 years of service with effect from 9-1-1982 and selection grade with effect from 9-1-1986. It is put forth that the Respondents vide order dated 19-4-1991, Annexure-P/5. applied senior scale and selection grade in respect of permanent posts only by adopting certain ratio in respect of the post of permanent cadre. It is urged that the ratio has to be against the total posts in the cadre and not against the permanent posts as declared by the Respondents on 19-4-1991. As per M.P. Pay-scale Revision Rules. 1990 three tier pay-scales were sanctioned to Deputy Collectors. Deputy Superintendents of Police. Assistant Conservators of Forest, Civil Judges and Officers of Finance and Accounts Services against total number of posts and the cadres included both permanent and temporary posts, and hence, there was no justification not to confer the benefit on the Petitioners on the ground of availability of permanent posts alone.
It is averred in the petition that on 13-3-1986. Annexure-A/4. it has been accepted that number of posts in respect of State Forest Service was 447 whereas in amendments issued on 3-3-1990, Annexure-A/7 the posts shown are 450. In the light of the accepted position the percentage of three tier pay-scales in Choudhary Pay-scale was 45% for Junior Scale, 202 posts; 40% for Senior Scale. 180 posts and 15%) Selection Grade 68 posts. It is urged that the officers of State Forest Service are entitled for three tier pay-scales in the abovementioned percentage. The M.P. Revised Pay Rules, 1990 issued on 4-2-1990 was referred. It is useful to refer to the same:
| 1-4-1981 | 4-2-1990 | ||
| (a) | Junior Scale | 45% | 60% |
| (b) | Senior Scale | 40% | 25% |
| (c) | Selection Grade | 15% | 15% |
The amendments incorporated vide Notification No. F-2-14-89-Das-1. dated 3-3-1990. Annexure-A/7 in M.P. State Forest Service (Recruitment) Rules. 1977 it has been accepted that senior scale may be awarded with effect from 14-10-1982 and selection grade with effect from 1-4-1986. Reliance has been placed in Rule 23 and 23-A that officers who were working in the junior scale will be entitled for consideration of senior grade along with other conditions, namely, he must have completed 8 years of service by 1st January of the year in junior grade and he must have completed 12 years of service in selection grade. It is contended by the Petitioner that the Cabinet approved the three tier pay-scale on 30-3-1986 and after an abnormal delay of four years. Recruitment Rules, 1977 were amended accordingly vide Notification dated 3-3-1990.
It is pleaded that the Respondents were duty-bound to consider the name of eligible officers and to issue orders in the month of January every year between 1987 to 1990 for their appointment in senior and selection grades keeping in view the concept of ratio. A reference has been made to certain documents to show that Officers on Special Duty were adjusted against Assistant Conservator of Forest which was illegal. It is putforth that benefit of scale of selection grade cannot be extended to the OS Ds against the post of Assistant Conservators of Forests. The Assistant Conservators of Forest were promoted to the post of Officers on Special Duty on recommendation of Selection Committee. The promotions made were not ad hoc and this circumstance cannot be counted or adjusted against the post of Assistant Conservator of Forest. A reference has been made to the order passed by the Madhya Pradesh Administrative Tribunal in T.A. No. 786/1988 passed on 28-11-1990, Annexure-A/15, whereby the Tribunal quashed the order of reversion against one Giriwar Singh Nirmal, Assistant Conservator of Forest who was promoted as an OSD on 20th September. 1990 holding that the posts of OS Ds were treated as promoted posts of Assistant Conservator of Forest and these promotions were made through the recommendation of the High Powered Departmental Promotion Committee and that being the position it was necessary for the Respondents to justify the order of reversion. In essence, assertion is that Officers on Special Duty in the State Forest Service is a separate cadre and they cannot be adjusted against the post of Assistant Conservator of Forest. In the amended rules they came into force on 3-3-1990. Rules 23 and 23-A did not include OS Ds for consideration which clearly show that the post of OSD is created separately on the recommendation of the Departmental Promotion Committee and that is why, they are not included for sanction of senior scale and selection grade. Hence, they cannot be adjusted in the cadre of Assistant Conservator of Forest nor they can be adjusted on lower post. It is urged that after implementation of three tier pay-scale post of OSD cannot be adjusted against the post of Assistant Conservator of Forest and the officers working as OSD are not entitled to get benefit of three tier pay-scale and inclusion of the OSD in the same is unjustified and illegal.
In this backdrop, prayer has been made to confer the benefit of senior scale of pay on the Petitioner with effect from 9-1-1982 after completion of six years and selection grade after 10 years total service as Assistant Conservator of Forest. It is also prayed that the Respondents should be commanded to fix pay of the Petitioner in senior scale with effect from 9-1-1982 and in selection grade with effect from 9-1-1986 and to pay arrears to him with interest at the rate of 18% p.a. It is putforth that retiral pension would be revised and, therefore, relief should be granted for refund of pension.
A counter affidavit has been filed by the answering Respondents contending, inter alia, that in the Gradation List, the Petitioner was placed at Sr. No. 99 as on 1-4-1991. The Recruitment Rules, 1977 provide eligibility criteria for consideration for grant of senior scale which is minimum 8 years of service as Assistant Conservator of Forest. Hence, the claim of the Petitioner to get the same from 9-1-1982 is without any basis as by that time he had not completed 8 years of service. With regard to the relief of grant of selection grade with effect from 9-1-1986, it is urged that the same is devoid of substance, inasmuch as, the Rules provide for 12 years'' minimum service as eligibility for consideration of grant of selection grade which falls in the year 1988. That apart. Rule 23 of 1977 Rules which deals with this aspect, clearly provides for the conferral of benefit of this scale. In the year 1986. the Screening Committee met and found that the Petitioner had the eligibility. The Petitioner was considered in the position that existed as on 1-4-1986 and was found fit by the Committee for grant of senior scale but he could not be conferred the benefit due to non-availability of the vacant post. The subsequent meeting of the screening committee took place on 23-11-1991 and 28-3-1992 and the Petitioner having been found fit was given the senior scale with effect from 1-5-1990. The said benefit was extended keeping in view his seniority.
In the return, it has been putforth that the stand of the Petitioner that the amendment in the Rules which came into force with effect from 3-3-1990 providing minimum service of 8 years and 12 years for senior scale and selection grade are not applicable to him, has no substance, inasmuch as. the aforesaid amendment has no bearing in the present case in view of the fact that the number of posts in the senior scale and selection grade had to be calculated on the basis of available permanent posts.
A rejoinder affidavit has been filed by the Petitioner that the conversion made in respect of the posts by the Department is incorrect as they have not computed permanent and temporary posts. It is putforth that even if 8 years are computed for consideration of grant of senior scale, he was due for promotion to the senior scale on 9-1-1984 but the same was granted to the Petitioner on 1-5-1990 without any rhyme and reason. A reference has been made to Rule 6(1)(b) and 6(2) read with Schedule II of M.P. State Forest Service (Recruitment) Rules. 1977 to highlight that both the categories of posts, namely, permanent and temporary are to be computed.
We have heard Mrs. June Choudhary, learned senior counsel with Mrs. J. Laxmi Ayer for the Petitioner and Mr. R.S. Patel. learned Additional Advocate General for the State.
Three questions emerge for consideration:
(a) Whether while computing the posts for consideration of cases for promotion, both permanent and temporary posts are to be computed or not;
(b) Whether, when the Petitioner was found fit in the year 1986. should he have been given the benefit from 1990 only;
(c) and whether the rules which have been placed reliance upon by the Respondents, can be made applicable to the case of the Petitioner.
Submission of Mrs. June Choudhary, learned senior counsel for the Petitioner is that the promotion has nexus with the cadre and the word "cadre" includes both permanent and temporary posts and should not be confined only to permanent posts.
In the case of
... The substantive vacancy has not been defined under the 1975 Rules but as held by this Court in Dixit case there can also be a substantive vacancy in a temporary post which is part of the cadre. All temporary posts created under Rule 4(4) of the 1975 Rules are additions to the permanent strength of the cadre and as such form part of the cadre. Appointments under Rule 22 of the 1975 Rules can be made to a permanent post as well as to a temporary post. So long as the temporary post has an independent existence and is a part of the cadre-strength the appointment against the said post has to be treated as substantive appointment.
Recently, in the case of
10. Before dealing with the main issue raised in the appeal, namely, the inter se seniority of direct recruits and promotees, the first and foremost question which requires consideration is whether for calculating the one-third quota of direct recruits as provided in Rule 6, the temporary posts of Addl. Distt. and Sessions Judges have to be included or not. Rule 6 only says that of the posts in the cadre of the Service, two-third shall be filled by promotion and one-third by direct recruitment. Cadre is defined in Sub-rule (a) of Rule 2 and it means the cadre of the Bihar Superior Judicial Service. It is important to note here that the definition of "cadre", as given in the aforesaid rule does not say that the temporary posts have not to be taken into consideration or have to be excluded nor there is any indication to that effect. "Cadre" means the entire cadre of the Bihar Superior Judicial Service and, therefore, there is no warrant for excluding the temporary posts.
In view of the aforesaid pronouncement of law, the definition of "Cadre" becomes the governing factor. In the 1977 Rules, the word "cadre" has not been defined. In view of the no definition in the amended rules and in view of the aforesaid enunciation of law, there can be no iota of doubt that the Cadre would include both permanent as well as temporary posts.
On a perusal of the 1977 Rules, it is quite clear that they provided for a post in the Selection Grade. There was no provision for senior scale. Hence, the claim of the Petitioner that he should have been granted senior scale from 9-1-1982 is without any substance. The Rules which are amended clearly postulate that no junior person shall be eligible for being considered for appointment to the senior scale of the service under these rules prior to his senior merely on the ground of having completed the prescribed number of years of service. Same is the provision relating to selection grade. As has been admitted, the Petitioner was found suitable with effect from 1-4-1986. He has not been given the benefit as there was no vacancy. The submission of Mrs. June Choudhary is that the temporary posts have not been computed for conferral of benefit. In my considered opinion, the aforesaid submission has substantial force, inasmuch as. the promotional cadre would constitute both the categories of posts. At this juncture, it is worthwhile to mention that a submission has been made by Mrs. June Choudhary that OST should be treated as a separate cadre. This stand is not worthy of acceptance, inasmuch as. the criteria is that of State Forest Service and not of ACF or OST. OST is a nomenclature given to a posting and that does not mean that the person would not be considered for promotion and only the persons who are functioning as AC Fs would be given the benefit. But, the fact remains, as asserted by Mrs. June Choudhary, the benefit has not been given from 1-4-1986 on the ground of lack of vacancy has force. It is not factually possible to ascertain as to how many posts were filled up under the relevant rules and whether there was temporary vacancy if there was a temporary vacancy as on 1-4-1986. the Petitioner shall be given the benefit from that date, which has been given to him at a later stage.
The writ petition is allowed to the extent indicated above. There shall be no order as to costs.
