OMKAR SINHA & ANR versus SAHADAT KHAN & ORS on 29 April 2022

1. Leave granted.

2. Both the appeals raise common questions. We take civil appealarising from SLP (C)No. 13668 of 2015 as the leading case.

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3. Respondent No. 1 was appointed as a Forest Guard on03.05.1980. He completed his training as Forest Guard in the year 1987.Appellant No. 1 came to be appointed as Forest Guard on 15.11.2007.The second appellant was also appointed as Forest Guard on the sameday. The appellants were originally part of undivided State of MadhyaPradesh. Upon the enactment of the State Reorganisation Act, 2000, anew State viz., State of Chhattisgarh was born on 01.11.2000. Whilethe State of Madhya Pradesh was undivided, State of Madhya Pradesh,on 17.10.1977 issued the following circular:

“Copy letter No. 13/10474/1977/1/x dated 17.10.77 fromthe Government of Madhya Pradesh, Department of Forest,Bhopal to the Principal Forest Conservator, Madhya Pradesh,Bhopal.

Sub: - For giving entry in the Ranger’s Training to thecandidate who stood first in the Forest Guard Training Schoolwithout entrance examination as well as for fixation of heightof 163 c.m.

Ref: - Your memo/copy/153/5737 dated 18.7.77.

The State Government grants approval forkeeping the height of 163 cm (one hundred sixty three c.m.)for the entire forest schools as well as Forest Guard’straining schools and those Forest Guard who passes theexamination of the Training schools in first class is grantedapproval for sending in the Ranger’s Training session withoutentrance examination.

By the name and order of the Governor of Madhya Pradesh.

Sd/-

4. Based on a proposed strike, a letter dated 14.05.2009 was issuedby the Secretary to the Principal Chief Conservator of Forests:

CHHATTISGARH ADMINISTRATION

MANTRALAYA, DAU KALYAN SINGH BHAWAN,RAIPUR

no./f 1-18/2007/10-1/Forest Raipur, Dt.14.05.2009

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To

Principal Chief Forest Conservator,

Chhattisgarh, Raipur.

Sub: - Information regarding indefinite strike w.e.f.18.5.2009for 21 point demands by the Chhattisgarh Forest EmployeesSangh, Raipur (the provision of promotion to the candidatesstanding first in the training of Ranger and Forest Guard.(demand No. 13).

It has been decided by the State Governmentthat the proposal regarding grant of 02 additional incrementsto the candidates who stood first and 01 additional incrementto the candidates who stood second in the training of ForestGuard/Ranger be approved and the previous practice berescinded. In this regard, please submit the necessaryproposal at the earliest.

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(Kaushlendra Singh)

Secretary

Chhattisgarh Administration, Forest Department No.F-1-18/2008/10-1Raipur, Dated 05/2009

Copy to:

Shri Faiyaj Ahmad Khan, State President,Chhattisgarh Forest Employees Sangh, Forest ColonyComplex, Raipur-for information.

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Secretary

Chhattisgarh Administration, Forest Department

5. Next, we must notice communication dated 14.12.2009. It reads:

OMKAR SINHA & ANR. v. SAHADAT KHAN & ORS.[K. M. JOSEPH, J.]

OFFICE OF THE PRINCIPAL CHIEF FORESTCONSERVATOR

CHHATTISGARH ARANYA BHAWAN, MEDICALCOLLEGE

ROAD, RAIPUR

BRANCH- ADMINISTRATION / NON-GAZETTED

No./Admn.Non-Gazetted.1/2009-7579 Raipur,Dt.14/12/2009To Chief Forest Conservator (Ma. San Vi/Su.Pau.)

Chhattisgarh, Raipur

Sub: -Sending Forest Ranger training to the Forest Guardsstood first in the Forest Guard Training School.

Ref.: Your letter No./Ma.Sun.Vi./Su./Pau./1133 dated09.12.2009

By the letter under reference on the captionedsubject, Shrilal Netam, Forest Guard has been mentioned forsending in the Forest Ranger Training. It is written in thisregard that by considering on the demand No. 13 out of 21point demands of the Chhattisgarh Forest Employees Sanghby the Chhattisgarh Administration, Forest Department,decision has been taken to grant 02 additional increments tothe trainees who stood first in the Forest Guard/Ranger trainingand 01 additional increment to the trainees who stood secondin the said training. Therefore, there is no need to send thecandidate who stood first in the Forest Guard training for thetraining of the Rangers. As per direction of the ChhattisgarhGovernment, Forest Department, the trainees who stood firstis entitled for only 02 additional increments. Copy of the letterNo.F-1-18/2007/10-1 (part-13) of the ChhattisgarhAdministration, Forest Department; Mantralaya Raipur isenclosed.

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1034SUPREME COURT REPORTS

AEnclosure: - As aforesaid

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Chief Forest Conservator (Admn. Non-Gazetted)

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Chhattisgarh (Raipur)”

6. In the meantime, it would appear that appellant No. 1, who wasundergoing training as Forest Guard stood first in the training. He feltentitled to be selected for training as Forester, on the basis of the orderdated 17.10.1977. A writ petition came to be filed as WP 45/2010 seekingdirection that the appellant No. 1 be sent for Forester training. Judgmentwas rendered on 11.01.2012 noting that there was some proposal toabolish the practice of sending the Forest Guard who stood first; notingthat this is a policy matter, a decision was directed to be taken on thesaid representation.

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There was correspondence dated 23.04.2012, which reads asfollows:

GOVERNMENT OF CHHATTISGARH

DAU KALYAN SINGH BHAWAN, MANTRALAYA,RAIPUR

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NO./1266/539/2012/10-1/FOREST RAIPU Dt. 23.4.2012

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Principal Chief Forest Conservator,

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Chhattisgarh, Raipur

Sub: - WP (C)No. 45/2012 Shri Omkar Sinha, Forest GuardVs. State of Chhattisgarh and Ors.

Ref: - Your letter No. / Admn. Non-gazetted.1/Nyaya./1380dated 02.03.2012.

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Kindly peruse the captioned letter underreference. In this regard it is relevant to mention that afterreceipt of the amendment proposal from the GeneralAdministration Department in Three Class (non-clerical)

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Forest Service Recruitment Rules the same has been sentto the Law Department for vetting/modification. Till thetime the new recruitment rule is not framed and enforced,the action may kindly be taken as per the existing recruitmentrules.

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2. It is relevant to mention that in the case of Shri Sinha, theHon’ble High Court vide its order dated 11.01.2012 hasdirected to take decision within 04 months, which shall beexpired / lapsed on 11.05.2012.

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3. As per direction, in the aforesaid case the action may betaken according to the existing recruitment rules.

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(M.L. Tamrakar)

Under Secretary

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Chhattisgarh Government, Forest DepartmentNo./ /539/2012/10-1/ForestRaipur, Dt. / / 2012

Copy to:

Shri Omkar Sinha, Forest Guard, SingpurEnclave Dhamtari, Dhamtari Forest Division, Dhamtari forEinformation.

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Under Secretary

Chhattisgarh Government, Forest Department F

7. We have referred to correspondence dated 23.04.2012. Thenthere is order dated 11.06.2012. It reads:

CHHATTISGARH ADMINISTRATION

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MANTRALAYA, DAU KALYAN SINGH BHAWAN,RAIPUR

No./1783/2900/2012/10-1/Forest Raipur, Dt.11/6/2012

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To

Principal Chief Forest Conservator,

Chhattisgarh, Raipur.

Sub: - For immediate recalling of Shri Onkar Sinha, ForestGuard from the Ranger’s training.

Ref: - Your letter No./Admn./Non-Gazetted/2012/3154,dated 01.05.2012.

Kindly peruse the captioned letter underreference.

2. The order No.13/10474/1977/1/X dated 17.10.1977 ofthe Government of Madhya Pradesh, Forest Department ishereby revoked.

3. In respect of recalling Shri Onkar Sinha, Forest Guardfrom the training of the Ranger, may kindly take necessaryaction as per rule.

By the name and order of the Governor of Chhattisgarh Sd/- (M.L. Tamrakar)

Under Secretary

Government of Chhattisgarh, Forest DepartmentNo. 1784/2900/2012/10-1/Forest Raipur,Dated 11.6.2012

Copy to:

State president, Chhattisgarh Forest EmployeesSangh, Raipur, Head Office, Forest Colony Complex, Pandri,Raipur for information in reference to his letter No. 24 dated02.06.2012.

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Under Secretary

Government of Chhattisgarh, Forest Department”

8. Since the second appellant was not sent for training, he filedWP 4076 of 2012 in which an order similar to the order passed in the

case of the first appellant came to be passed on 03.10.2012. Afterreconsideration of the entire matter, it is found by order dated 22.1.2013by Under Secretary that it was decided to send the appellants for trainingand that there was no contempt involved.

9. The Chief Conservator of Forest sent communication to theDirector on 01.12.2013 asking for list of Forest Guards who stood firstduring that period 14.05.2009 till the date of session.

The first respondent filed WP (S)No. 1100/2013 challenging theorders dated 22.01.2013 and 01.12.2013 on the basis that circular dated17.10.1977 stood withdrawn by circular dated 14.12.2009 and therefore,no Forest Guard could be sent out of turn for training as Forester afterwithdrawal of the circular dated 17.10.1977. In the meantime, on17.02.2014, the appellants completed their training as Forester. Thelearned Single Judge dismissed the Writ Petition No. 1100 /2013 out ofwhich one appeal arises and also Writ Petition (S) No. 188/2012 whichis the subject matter of the other appeal. Writ appeals came to be filedby the aggrieved writ petitioners in both the cases viz., Writ Appeal No.1/2015 and Writ Appeal No. 2 /2015. By the impugned judgment, theDivision Bench set aside the judgment of the learned Single Judge.Findings of the Division Bench to be noted are as follows:

“14. The State Respondent did not act fairly, reasonablyand responsibly in the matter. A decision had already beentaken at the highest level of the Government on 14.5.2009.It was understood in clear terms by the Principal ChiefConservator of Forest who issued consequential orders on14.12.2009. The Under Secretary then issued an order atvariance. There is no pleading in the counter-affidavit ofthe State that the Secretary had allowed his own order dated14.5.2009 to be recalled much less did the order of the UnderSecretary make any reference to the order of the Secretary.An advantage was taken of the order of the Court in WritPetition (S) 45 of 2012 filed by the private Respondent tocreate an aura of fear that the wrath of the Court would beinvited in contempt jurisdiction rather than to have decidedthe representation in accordance with law. The respondentauthorities in the counter affidavit virtually challenge theirown order dated 14.5.2009 which is clearly impermissiblein the law. The Sub-divisional Forest Officer who has sworn A

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the counter affidavit virtually challenges the order of theSecretary, Department of Forests of the State governmentdated 14.5.2009 which is impermissible as held in (1988) 3SCC 570 (Commr. of Commercial Taxes (Asstt.) v.Dharmendra Trading Co) observing as follows: - “5. …… We totally fail to see how an AssistantCommissioner or Deputy Commissioner of Sales Taxwho are functionaries of a State can say that aconcession granted by the State itself was beyondthe powers of the State or how the State can say soeither……….”

15. The standards by which the Government will act has tobe very different from the manner in which a privateauthority or individual will act. The order dated 14.5.2009did not emanate in the void. It was the result of a properthought process in view of certain demands raised by theForest Workers Union who had threatened to go on strike.We were informed at the bar during hearing by the partiesthat eventually the strike was called off because of theassurances given by the Government.

16. It is apparent that this decision was taken afterconsultation with the Union or the Government suo-mototook the decision to avoid the possibility of any strike. Thecounter-affidavit confronts the Court with a conclusionrather than informing that whether any negotiations wereheld with the Union or not. Under what circumstances thedecision dated 14.5.2009 was taken. The question that arisesfor our consideration is that if the State Government in theDepartment of Forest at the highest level gave assuranceto its employees because of which they called off their strike,was it only a guise by the officials of the State to fraudulentlyhave the strike called off without any intention to implementtheir decision and assurance given. If that was so, it was afraud on the Constitution, impermissible under Article 14 ofthe Constitution. Conversely, if the State took a consciousdecision to do away with the circular dated 17.10.1977 inview of the strike call given by the Union and therebyprevented the strike, the State certainly stood to gain an advantage and is bound to stick by its promise. Theauthorities of the State Government cannot vacillate indecision making according to their convenience seekingshoulders of the Court when in fact, the Court never gavethem its shoulder. We do not approve of the conduct of theState authorities in reading more into the order in Writ Petition(S)No. 45 of 2012 than it actually contained.

17. In (2013) 3 SCC 559 (State of Bihar v. Sunny Prakash)the challenge was to the direction of the High Court in aPublic Interest Litigation to ensure that the commitmentgiven by the State Government to the Bihar State Universityand College Employees Federation is honoured andimplemented. The strike was called off following anagreement after the State Government issued a letter forimplementation of the agreement. Later the Stategovernment sought to rescile that it was not a decision takenaccording to Rules to Executive business. It was held asfollows:

“22. Inasmuch as all the persons who were competentto represent were the parties to the said agreementreferred to above and after making such commitmentby the State Government, as rightly observed by theHigh Court, we are also of the view that the samehas to be honoured without any exception. By theimpugned order, the High Court has not only directedthe State Government to implement the commitmentgiven by it having been reduced into writing on 18-7-2007, honoured by the State Government itself insubsequent letters/correspondences but also directedthe Federation to call off the strike immediately inthe interest of the student community.”

10. We have heard the learned senior counsel appearing for theappellants as also the learned counsel appearing for the respondents/writ petitioners and the learned counsel for the State.

11. Learned senior counsel for the appellants would point out thatthe High Court was wrong in deciding that by communication dated14.05.2009, the Government circular dated 17.10.1977 was withdrawn.

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AActually, in law, the earlier circular made by Governor is withdrawn onlyon 11.06.2012. He would rely on Bachhittar Singh v. State of Punjaband Another AIR 1963 SC 395:

“8. What we have now to consider is the effect of the noterecorded by the Revenue Minister of PEPSU upon the file.We will assume for the purpose of this case that it is anorder. Even so, the question is whether it can be regardedas the order of the State Government which alone, asadmitted by the appellant, was competent to hear and decidean appeal from the order of the Revenue Secretary. Article166(1) of the Constitution requires that all executive actionof the Government of a State shall be expressed in the nameof the Governor. Clause (2) of Article 166 provides for theauthentication of orders and other instruments made andexecuted in the name of the Governor. Clause (3) of thatarticle enables the Governor to make rules for the moreconvenient transaction of the business of the Governmentand for the allocation among the Ministers of the saidbusiness. What the appellant calls an order of the StateGovernment is admittedly not expressed to be in the nameof the Governor. But with that point we shall deal later.What we must first ascertain is whether the order of theRevenue Minister is an order of the State Government i.e.of the Governor. In this connection we may refer to Rule25 of the Rules of Business of the Government of PEPSUwhich reads thus:

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“Except as otherwise provided by any other Rule,cases shall ordinarily be disposed of by or underthe authority of the Minister in charge who mayby means of standing orders give such directionsas he thinks fit for the disposal of cases in theDepartment. Copies of such standing orders shallbe sent to the Rajpramukh and the ChiefMinister.”

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According to learned counsel for the appellant his appealpertains to the department which was in charge of theRevenue Minister and, therefore, he could deal with it. Hisdecision and order would, according to him, be the decision H

and order of the State Government. On behalf of the Statereliance was, however, placed on Rule 34 which requiredcertain classes of cases to be submitted to the Rajpramukhand the Chief Minister before the issue of orders. But itwas conceded during the course of the argument that acase of the kind before us does not fall within that rule. Noother provision bearing on the point having been brought toour notice we would, therefore, hold that the RevenueMinister could make an order on behalf of the StateGovernment.

9. The question, therefore, is whether he did in fact makesuch an order. Merely writing something on the file doesnot amount to an order. Before something amounts to anorder of the State Government two things are necessary.The order has to be expressed in the name of the Governoras required by clause (1) of Article 166 and then it has to becommunicated. As already indicated, no formal ordermodifying the decision of the Revenue Secretary was evermade. Until such an order is drawn up the State Governmentcannot, in our opinion, be regarded as bound by what wasstated in the file. As long as the matter rested with him theRevenue Minister could well score out his remarks orminutes on the file and write fresh ones.

This judgment, he would point out was followed in K.S.B. Ali v.State of Andhra Pradesh and Others (2018) 11 SCC 277 and DynaTechnologies Pvt. Ltd. v. Crompton Greaves Limited (2019) 20 SCC1.

12. Learned counsel for the respondents/writ petitioners in theHigh Court, however, take us through the order of the Division Benchand support the order. He would submit that statutory rules were inplace in the undivided State of Madhya Pradesh. What is more, statutoryrules have also been made for newly governed State of Chhattisgarh on21.06.2012. He would submit that under the M.P. Class III (Non-Minstl.)Forest Service Recruitment Rules, 1967 (hereinafter referred to as‘Rules’), for promotion for the post of Forester, certain number of yearsas experience as trained Guard is mandatory. Besides, by supportingthe reasoning of the Division Bench, he would also submit that any attemptto draw support from circular 17.10.1977 as followed in the State of A

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AChhattisgarh would be in the teeth of statutory Rules and hence wouldbe ultra vires. At any rate, the Court should not see any merit in thecomplaint of the appellants, he contends.

13. Per contra, Mr. Sourav Roy, learned Deputy AdvocateGeneral, would submit that the reasoning of the High Court in theBimpugned judgment may not be supportable. He would also submit withreference to the stand taken by the State in the counter affidavit that theearlier circular dated 17.10.1977 in the undivided State of MadhyaPradesh continued to hold good and it was revoked finally in the mannercontemplated in law only with the issuance of order dated 11.06.2012.In other words, he would, in substance, support the stand of the appellants.CHe would submit that while it may be true that there was a strike and adecision was taken, it was only in principle, as is quite evident from thecommunication dated 14.05.2009. It only indicates that proposal wasinvited. Thereafter, as is true with any Government decision, of thenature involved, it is a time consuming affair. What is relevant is theDlegality of the matter and therefore, for the validity of the matter if it is aGovernment order, it has to be an order of the Governor, which he agreeswith the learned senior counsel for the appellants, was passed only withthe issuance of order dated 11.06.2012. He would further point out thatthe Court may not overlook the fact that the case of the writ petitionersin the writ petition was not based essentially on the withdrawal of theEorder dated 17.10.1977 by order dated 14.05.2009. Instead, the casewas based on the order dated 17.10.1977 being completely eclipsed andsuffering a natural death as a result of the issuance of the communicationwhich is dated 14.12.2009. He would further submit that there is also nomerit in the complaint that order dated 17.10.1977 was ultra vires. HeFwould point out that actually under the Rules which were extant whilethere was a certain number of years to roll by as a Forest Guard beforea person could be considered for promotion as Forester, in accordancewith Rule 6(4) of the erstwhile Rules, however, the Government mayprescribe by order, procedure which may be at variance from the existingrules. Therefore, the order dated 17.10.1977 was projected to be oneGsuch exercise. What is more, even in the newly enacted Rules for theState of Chhattisgarh, a provision corresponding to Rule 6(4) has beenenacted. So, there is no merit in the case of the ultra vires also.

14. We think it is unnecessary to again burden the judgment withcopious reference to case law as we have already referred to theH

paragraphs as contained in the Constitution Bench of this Court inBachhittar Singh (supra).

What is relevant is that under the Rules, Rule 14(1) provided forpromotion from the post of Guard to Forester. Under the same, wenotice Schedule IV. It is provided that a Forest Guard could be promotedafter three years after training from the Forest Guards Training Schoolor after 12 years or more years of service in the case of untrainedForest Guards. However, we must notice Rule 6. Rule 6 of the saidRules provides for method of recruitment.

Rule 6 inter alia provides that recruitment to the service aftercommencement of the Rules which we notice is in the year 1967, can bemade inter alia by promotion of members of the service mentioned incolumn 12 of Schedule IV. Thereafter what is relevant is sub Rule (4):

“(4) Notwithstanding anything contained in sub-rule (1), ifin the opinion of the Government the exigencies of theservice so require, the Government may adopt such methodsof recruitment to the service other than those specified inthe said sub-rule, as it may, by order issued in this behalf,prescribe.”

Therefore, it would appear to be the case of the State that it is notas if the 1977 order was in any manner contrary to the statutory rulesand it was very much premised on the statutory rules.

15. We have already noticed the factual position. The appellantsundoubtedly stood first in the training programme during the training asForest Guards. There was a reorganisation of the State as we havenoticed. The Government Order which would appear to be a GovernmentOrder in the undivided State of Madhya Pradesh continued in terms ofthe Reorganisation Act. Such Government Orders of the undivided Stateof Madhya Pradesh would undoubtedly continue to hold the field till itwas revoked in the manner known to law. The Division Bench in theimpugned judgment has proceeded on the basis that the Order dated17.10.1977 was revoked by order dated 14.05.2009. It is, undoubtedly,true that in the said communication, it is addressed by the Secretary tothe Principal Chief Forest Conservator. The proposed strike and thedecision taken is referred to. At the same time, it all ends by requestingthat the necessary proposal be submitted. It is thereafter thatcommunication dated 14.12.2009 came to be made. Communication AB

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Adated 14.12.2009 is not an order of the Governor or expressed to bemade in his name. It is a communication, no doubt, issued by a ChiefForest Conservator. Therein, no doubt, reference is made to the demandsmade by the Employees Union and that the decision had been taken togive two additional increments to the trainees who stood first in theForest Guard training in replacement of the earlier incentive of sendingBthem for training as Forester. It is also stated that there is no need tosend the candidates who stood first in the Forest Guard training fortraining as Forester. It is reiterated that as per the directions of theChhattisgarh Government, the trainees who stood first are entitled foronly 02 additional increments. We must notice that this communicationCdoes not bear the insignia of a Government Order, which alone wouldsuffice to show that order dated 17.10.1977 stood withdrawn. Whereaswe would find that the communication dated 11.06.2012 contains twospecific signs. Firstly, it is expressly made in the name of the Governor.Secondly, it specifically revokes the communication dated 17.10.1977.The Division Bench has proceeded to consider the case based on theDcommunication dated 14.05.2009 which we must note is a case whicheven the writ petitioners did not have. A perusal of the pleadings of thewrit petition would show that the case of the writ petitioners was premisedon the order dated 14.12.2009 bringing about the revocation of the orderdated 17.10.77. Even the petitioners did not, in other words, set up aEcase that 14.05.2009 is an order revoking 14.05.2009. In matters of thisnature, the role of proper pleadings must be emphasised for the partiesjoin issue on the basis of the case which has been built up before theCourt.

We are of the view, therefore, that the reasoning which has beenFemployed by the Division Bench cannot be sustained. The appeals areallowed and the impugned judgments will stand set aside. There will beno orders as to costs.

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Nidhi Jain and Amarendra Kumar

(Assisted by : Pragya Samal, LCRA)

Appeals allowed.

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