NAND KUMAR MANJHI & ANR. ETC. versus THE STATE OF BIHAR & ORS. ETC. on 22 April 2019

NAND KUMAR MANJHI & ANR. ETC.

v.

THE STATE OF BIHAR & ORS. ETC.

(Civil Appeal Nos. 4020-4022 of 2019)

APRIL 22, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Bihar Forest Service Rules, 1953 – rr.3(aa), 22, 24 & 35 –Respondent No.1-State published advertisement on 24.07.85 invitingapplications for filling up 40 posts of Assistant Conservator ofForests (ACF) through direct recruitment – Posts filled up videNotification dtd.14.12.87– Appellants participated in the selectionbut were unsuccessful in getting appointed – Appellants with someother unsuccessful candidates made representations inter alia to ChiefMinister, Minister of Forests and Environment for appointmentagainst vacant posts beyond the 40 advertised posts – Commissionrecommended the names of 12 candidates, including the appellants,for appointment as ACFs – Notification dtd. 13.04.88 issuedappointing 11 candidates, including the appellants – In 1987, 52Forest Rangers were also promoted as ACFs – Further appointmentswere made through direct recruitment and promotion in 1990, 1992and 1995 – Proposal to regularise the services of the appellantsapproved by the Governor on 03.10.05 – Appellants confirmed videnotification dtd. 04.10.10 w.e.f. from the date of their regularisationi.e. 03.10.05 – State published the Final Seniority List – Appellantsplaced at the bottom of the Seniority List, below the 1987 Promotees,the Direct Recruits and Promotees of 1990, the 1992 Promotees,and Promotees of 1995 – Objected by the appellants – Appellantsfiled writ petitions – Dismissed – LPAs also dismissed – Held: Asper r.35 of the Bihar Forest Service Rules, 1953, the seniority ofofficers appointed to the Bihar Forest Service has to be determinedwith reference to the date of their substantive appointment – Anappointment in substantive capacity is one which is not fortuitousor ad hoc, and is made in compliance with the extant rules andregulations – Appointment of the appellants were made beyond thevacancies advertised in 1985 – Appellants admittedly secured

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Aappointment as ACFs through the back-door by making variousrepresentations and persistent lobbying – Pursuant to theserepresentations, the State appointed the appellants on 13.04.88purportedly with reference to the 1985 advertisement – This wasillegal and fortuitous, since the posts advertised in 1985 had beenfilled up from its merit list which stood fully exhausted – There is noBprovision for maintaining a Wait List under the 1953 Rules– Hence,the appointment of the appellants was wholly illegal and contraryto the statutory rules – Proposal to regularise the services of theappellants was initiated, taking a humanitarian view, since by thenthe Appellants had already served for almost 17 years – High CourtCrightly held that the seniority of the appellants can be reckonedonly from the date of their regularisation in service w.e.f. 03.10.05,and not from the date of their initial appointment on 13.04.88, asclaimed by them – Impugned judgment affirmed.

Dismissing the appeals, the CourtD

HELD: 1.1 As per Rule 35 of the Bihar Forest ServiceRules, 1953, the seniority of officers appointed to the Bihar ForestService has to be determined with reference to the date of theirsubstantive appointment. An appointment in substantive capacityis one which is not fortuitous or ad hoc, and is made in complianceEwith the extant rules and regulations. The Appellants hadadmittedly secured appointment as ACFs through the back-doorby making various representations to the Chief Minister on12.06.1987, the Minister of Forests and Environment on21.08.1987, and the Secretary, Department of Forests andEnvironment on 06.11.1987. Pursuant to these representations,Fthe State appointed the Appellants on 13.04.1988 purportedlywith reference to the 1985 advertisement. This was completelyillegal and fortuitous, since the posts advertised in 1985 had beenfilled up from the merit list. [Paras 8.1, 8.2 and 8.3][666-D;668-A-C]G

1.2 The recruitment initiated by the 1985 Advertisementculminated with the appointment of ACFs by the State videNotification dated 14.12.1987 against the posts advertised. Withtheir appointment, the Merit List prepared in pursuance of the1985 Advertisement stood exhausted, and no further H

appointments could have been made from it. Rule 22 of the BiharForest Service Rules, 1953 provides for the preparation of theMerit List on the basis of the aggregate marks secured by acandidate in the written examination as well as viva voce test. Itprovides that the Commission shall nominate such number ofcandidates from the merit list as may have been fixed by theGovernor. There is no provision for maintaining a Wait List underthe Bihar Forest Service Rules, 1953. Hence, the appointmentof the Appellants was wholly illegal and contrary to the statutoryrules. IThe appointments of the Appellants were made beyondthe vacancies advertised in 1985, which was in contravention ofthe well-settled principle of law. [Paras 8.4-8.6][668-E-G;669-A-B]

1.3 As a result of the persistent lobbying by the Appellants,they were able to secure appointment as ACFs on 13.04.1988purportedly against the 1985 Advertisement. The appointmentof the Appellants was wholly illegal, and in contravention of theBihar Forest Service Rules, 1953. The posts advertised in 1985were duly filled up by the selected candidates. The list of the1985 advertisement stood fully exhausted. [Paras 8.7][670-C-D]

1.4 Proposal to regularise the services of the Appellantswas initiated, taking a humanitarian view of the matter, since bythen the Appellants had already served for almost 17 years. Inthe proposal, it was mentioned that the appointment of theAppellants as ACFs in 1988 was “irregular”. However, thecancellation of the appointments at that juncture would result infurther litigation, since it was made on the basis of a letter fromthe Commission. [Paras 8.11][670-G-H; 671-A]

1.5 In the aforesaid background facts, the High Court wasfully justified in dismissing the Writ Petitions and the LettersPatent Appeals filed by the Appellants. The High Court rightlyheld that the seniority of the Appellants can be reckoned onlyfrom the date of their regularisation in service w.e.f. 03.10.2005,and not from the date of their initial appointment on 13.04.1988,as claimed by them. The impugned Judgment passed by the HighCourt is affirmed. [Paras 8.14, 8.15][671-E; 672-A]

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ABaleshwar Dass & Ors. v. State of U.P. & Ors. (1980) 4SCC 226 : [1981] 1 SCR 449 ; O.P. Singla & Anr. v.Union of India & Ors., (1984) 4 SCC 450 : [1985]1 SCR 351 ; Rakhi Ray & Ors. v. High Court of Delhi& Ors. (2010) 2 SCC 637 : [2010] 2 SCR 239 – reliedon.BSanjay k. Sinha -II & Ors. v. State of Bihar & Ors.(2004) 10 SCC 734 : [2004] 2 Suppl. SCR 834– referred to.

Case Law Reference

DCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4020-4022 of 2019.

From the Judgment and Order dated 10.11.2014 of the High Courtof Judicature at Patna in Letters Patent Appeal Nos. 491, 257 and 509of 2013.E

Rakesh Dwivedi, Sr. Adv., Rudreshwar Singh, Ms. Isha Singh,Ms. Snehil Sonay, Siddhartha Iyer, Kaushik Poddar, Advs. for theAppellants.

Dinesh Dwivedi, Nagendra Rai, Sr. Advs., Chandra Prakash,FChandan Kumar, Yasharth Kant, Gaurav Agrawal, Abhinav Mukerji, Ms.Bihu Sharma, Ms. Pratishthaq Vij, Ms. Purnima Krishna, Adv. Ms. PrernaSingh, Shantanu Sagar, Advs. for the Respondents.

The Judgment of the Court was delivered by INDU MALHOTRA, J. Leave granted.G

1. The present Civil Appeals arise out of Special Leave Petition(Civil) Nos. 11320-11322 of 2015 wherein the impugned Judgment andOrder dated 10.11.2014 passed by the Patna High Court in Letters PatentAppeal Nos. 491 of 2013, 257 of 2013 and 509 of 2013 has beenchallenged.

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2. The factual matrix in the present Civil Appeals is as under:

2.1. The Respondent No. 1 – State of Bihar published anadvertisement on 24.07.1985 inviting applications for fillingup 40 posts of Assistant Conservator of Forests (“ACF”)through direct recruitment under the Bihar Forest ServiceRules, 1953.

On the basis of the examination conducted in December1985 and viva voce, the Bihar Public Service Commission(“the Commission”) prepared a list of successful candidates.

On the recommendations of the Commission, the postsof ACFs advertised were filled up by the State videNotification dated 14.12.1987. On filling up of the advertisedposts, the Merit List got exhausted.

The Appellants, in the present case, had participated inthe selection, but were unsuccessful in getting appointed.

2.2. The Appellants and some other candidates who wereunsuccessful in obtaining appointment as ACFs in the 1985selection, made representations before the Chief Ministeron 12.06.1987, the Minister of Forests and Environment on21.08.1987, and the Secretary, Department of Forests andEnvironment on 06.11.1987 for appointment against vacantposts beyond the 40 advertised posts.

2.3. On 21.10.1987, the State took a decision to fill the existingvacant posts of ACFs from the list of successful candidateswho had qualified in the Competitive Examination conductedin 1985 and 1986 respectively, but did not get appointed.

2.4. On 15.02.1988, the State Government sought the names of13 successful candidates from the Commission, as per theMerit List prepared pursuant to the selection against the1985 advertisement.

The Commission vide letter dated 20.02.1988recommended the names of 12 candidates, which includedthe names of the Appellants, for appointment as ACFs.

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AThe State issued a Notification dated 13.04.1988appointing 11 candidates, including the Appellants, from thelist forwarded by the Commission as ACFs.

2.5. On 10.08.1989, 8 more candidates were appointed to theposts of ACF which fell vacant on account of non-joining ofBcandidates appointed vide Notifications dated 14.12.1987and 13.04.1988. The names of these 8 candidates were alsoshown against the 1985 Advertisement.

2.6. On 12.06.1987, the State Government sent a requisition toinitiate the process for appointment of 40 more ACFsCthrough direct recruitment.

Pursuant to the requisition made by the State on12.06.1987, a fresh Advertisement for 40 posts of ACFsthrough direct recruitment was published by the Commissionon 20.12.1987. The Commission conducted writtenDexamination in September 1988.

The State appointed 35 direct recruits as ACFs on30.03.1990 against the vacancies notified in the 1987advertisement.

2.7. The State promoted 30 Range Officers, includingERespondent Nos. 21-32[1], as ACFs w.e.f. 30.03.1990 videNotifications dated 16/17.08.1990, 18.07.1991 and02.09.1992, respectively.

2.8. During the period from 20.06.1987 to 17.10.1987, theState further promoted 52 Forest Rangers to the post ofFACF.

2.9. The Bihar Forest Service Rules, 1953 were amended toinsert Rule 3(aa) on 26.12.1989 with retrospective effect.As per Rule 3(aa), Range Officers of Forests who havepassed the Ranger Course after securing Honours shall beGdeemed to be eligible to be appointed as AssistantConservators of Forests, and shall be treated as directrecruits.

1 Names of Respondent Nos. 21-22, 24 and 28 have been deleted from the array ofHparties vide Order dated November 6, 2017 passed by the learned Chamber Judge.

Rule 3(aa) is reproduced hereinbelow:

“3. The appointments of the service shall ordinarilybe made by -…

…(aa) The Range Officer of Forest, who passes theRanger Course securing Honours shall be eligiblefor admission to the 2nd year/2 (two) years of StateForest Service Course in Forestry conducted byGovernment of India. They shall be treated as directrecruit to the Bihar Forest Service Cadre (as AssistantConservator of Forests) and the provisions as laiddown in the Rule 29, shall be applicable to theseselected Range Officers of Forests…”

The State Government vide various Notificationsdated 09.03.1990, appointed 10 Range Officers who hadobtained Honours in the Rangers Course, includingRespondent Nos. 8 and 9 as ACFs.

2.10. The State published a final Seniority List on 24.07.1989,wherein the ACFs who were promoted on 06.10.1987 and23.11.1987, were placed above the Direct Recruits appointedon 14.12.1987.

Insofar as the Appellants in these Appeals areconcerned, they were accorded seniority w.e.f. the date oftheir appointment i.e. 13.04.1988.

2.11. The Seniority List came to be challenged by the DirectRecruits appointed on 14.12.1987 by way of CWJC No.8305 of 1989 before the Patna High Court.

CWJC Nos. 8305 of 1989 culminated in the Judgmentdated 31.05.2004 passed in Sanjay K. Sinha – II & Ors.v. State of Bihar & Ors.[2] by this Court. It was held thatthe appointments of the 1987 Promotees were fortuitoussince they were made against non-existent posts, and couldnot confer any benefit of seniority from the purported dateof promotion. The final Seniority List dated 24.07.1989 wasquashed, and the State was directed to prepare a freshSeniority List. This Court granted liberty to the State to 2 [(2004) 10 SCC 734]

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regularise the appointment of the 1987 Promotees, whilstholding that seniority could not be given to them over theDirect Recruits appointed on 14.12.1987. This Court notedthat there were only 133 posts in the Bihar Forest Service,and not 277 as contended by the 1987 Promotees.

2.12. Upon creation of the State of Jharkhand, several officersfrom the Bihar Forest Service were transferred to theJharkhand cadre, including some of those who wereappointed along with the Appellants on 13.04.1988 and10.08.1989.

2.13. After bifurcation of the State of Bihar and creation of theState of Jharkhand, the validity of the appointments of theAppellants and other ACFs appointed by the State on13.04.1988 and 10.08.1989 was discussed at different levelsduring President’s Rule in Bihar, as is apparent from theFile Notings placed on record.

The Law Department was of the opinion that theseappointments were irregular since they were appointedpurportedly against the advertisement of 1985, even thoughthe Select List had got exhausted. It was however observedthat cancellation of their appointment would result inlitigation, since the appointments were made on the basisof the recommendations of the Commission. Furthermore,the appointees had by now served for about 17 years. Itwas suggested that such appointments may be regularisedsince they were irregular, but not illegal.

The issue of their inter se seniority vis-à-vis the 1987Promotees was also considered, and a decision was soughtfrom the State Government. The proposal for regularisationof the appointments of these ACFs was submitted forapproval before the Governor on 03.10.2005.

2.14. A perusal of letter dated 15.07.2006 addressed by theAdditional Secretary to the Government to the Secretary,Bihar Legislative Assembly indicates that the proposal wasapproved, and the “…State Government after Enquiryregularised these appointments and closed thisepisode.”.

The Appellants came to be regularised by the StateGovernment w.e.f. 03.10.2005.

2.15. On 09.03.2010, shadow posts were created by the Statesince the “…working force [was] in excess than createdforce…since 1987…”.

The State confirmed the services of the Appellants w.e.f.03.10.2005, by issuance of Notification dated 04.10.2010.

2.16. On 31.03.2010, a Provisional Seniority List was published,wherein the Appellants were placed below the DirectRecruits and Promotees who were appointed w.e.f.30.03.1990, Respondent No. 10 – Hemkant Rai, the 1992Promotees and the 1995 Promotees.

2.17. Objections were raised by the Appellants regarding theirplacement in the Seniority List. A High-Level ScrutinyCommittee was constituted by the State to look into theirgrievances.

The High-Level Scrutiny Committee rejected theobjections raised by the Appellants.

It was noted that they were regularised only w.e.f.03.10.2005, and hence were not entitled to being placedabove the persons appointed in 1987, 1990, 1992 and 1995.

2.18. The Final Seniority List was published on 02.07.2010. TheAppellants were placed at the bottom of the Seniority Listat Serial Nos. 321 to 338 i.e. below the 1987 Promotees,Direct Recruits as well as Promotees appointed w.e.f.30.03.1990, Respondent No. 10 – Hemkant Rai, the 1992and 1995 Promotees.

2.19. Several Writ Petitions were filed before the Patna HighCourt by various officers appointed in the Bihar ForestService cadre to challenge their inter se seniority in thecadre as per the Final Seniority List dated 02.07.2010.

2.20. The Appellants before this Court filed CWJC Nos.10925,11160 and 11337 of 2010 to challenge their placement belowthe 1987 Promotees (Serial Nos. 167 and 209), RespondentNo. 10 – Hemkant Rai (Serial No. 211) and T.N. Jha (SerialNo. 212), 1987 Direct Recruits (Serial Nos. 215 to 249)

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and Promotees (Serial Nos. 250 to 289), some of whomare Respondents in the present proceedings.

2.21. The Writ Petitions were heard together and disposed of bythe common Judgment and Order dated 06.11.2012 passedby the learned Single Judge.

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The Writ Petitions filed by the Appellants herein (CWJCNos.10925, 11160 and 11337 of 2010) were dismissed.

The learned Single Judge held that:

i) The Appellants were rightly placed at the bottom of theCSeniority List since their initial appointments on 13.04.1988,were purportedly from the list of candidates prepared forthe 1985 advertisement. Since the appointment of theAppellants was beyond the 40 advertised vacancies, it wascompletely illegal.

DII) The Appellants persuaded the State to appoint them, whichwas a rank illegality, which cannot be termed just as a mereirregularity, or minor deviation from the Rules.

iii) On a humanitarian basis, the Appellants were deemed tobe regularised w.e.f. 03.10.2005 i.e. the date of theirconfirmation in service. This date has to be taken as theElegitimate date of entry into the cadre; upto this date theirentry into the cadre was a rank illegality.

2.22. The Appellants preferred Letters Patent Appeal Nos. 257,491 and 509 of 2013 before a Division Bench against thecommon Judgment dated 06.11.2012 passed by the learnedFSingle Judge of the Patna High Court.

2.23. The Letters Patent Appeals were dismissed by a commonJudgment dated 10.11.2014, wherein it was held that:

I) The Appellants cannot claim seniority on the principle ofGcontinuous officiation from the date of their appointmenti.e. 13.04.1988. The seniority accorded to them from thedate of their regularisation in the cadre i.e. 03.10.2005, doesnot call for any interference in exercise of the powers ofjudicial review.

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II) The appointment of the Appellants was illegal, and inAcontravention of all canons of service jurisprudence. It wasbased on the generosity of the State.

iii) The recruitment process commenced pursuant to the 1985Advertisement for 40 posts of ACFs, was completed on theappointments made on 14.12.1987.

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iv) The recruitment process having been completed, there wasno occasion for the State to make any further appointmentspursuant to the 1985 Advertisement.

v) The Appellants were persons who had not been selected orCrecommended by the Commission, nor were they wait-listedcandidates.

vi) The appointment of the Appellants ought to be considerednon est.

vii) The State Government vide Notification dated 04.10.2010regularised their services w.e.f. 03.10.2005.

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3. The Appellants filed the present Special Leave Petitions tochallenge the common Impugned Judgment dated 10.11.2014 passed bythe learned Division Bench of the Patna High Court.

4. Mr. Rakesh Dwivedi, learned Senior Counsel, appeared onbehalf of the Appellants, and prayed for setting aside the impugnedJudgment dated 10.11.2014 passed by the Division Bench.

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Mr. Abhinav Mukerji, learned Advocate, appeared on behalf ofthe State, and the official respondents from the Department ofEnvironment & Forests, and Personnel and Administrative ReformsFDepartment, Government of Bihar.

Mr. Dinesh Dwivedi, learned Senior Advocate, appeared on behalfof some of the Direct Recruits from the 1990 batch (Respondent Nos.13, 15, 16, 17 and 19).

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5. We have perused the record with the able assistance of theCounsel for the parties.

The issue which arises for our consideration in the present CivilAppeals is whether the Appellants have rightly been placed at the bottomof the Seniority List dated 02.07.2010, by according them seniority from H

Athe date of their regularisation in the service on 03.10.2005, and notfrom the date of their initial appointment i.e. 13.04.1988.

6. SUBMISSIONSOF PETITIONERS

6.1. The counsel for the Appellants submitted that theAppellants ought to have been accorded seniority w.e.f.Bthe date of their initial appointment i.e. 13.04.1988.Otherwise, they would lose 17 years of service by beingplaced at the bottom of the final Seniority List dated02.07.2010.

6.2. It was further submitted that the Appellants wereappointed as ACFs on the basis of the recommendationof the Commission vide letter dated 20.02.1988. Therecommendation was sent after receiving a requisitionfrom the State Government vide letter dated 15.02.1988.

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6.3. All the private Respondents were appointed after theDAppellants in 1989, and thereafter.

6.4. The final Seniority List published by the State on24.07.1989 was never challenged by the Respondentsinsofar as it related to the seniority of the Appellants.

6.5. The action of the State in according seniority to theRespondents from the dates of their appointment, whiledenying the same to the Appellants was wholly arbitraryand unjustified.

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6.6. Both the Appellants and the private Respondents wereappointed beyond the cadre strength, and theirFappointments were regularised after the creation ofshadow posts vide Notification dated 09.03.2010.

7. SUBMISSIONSOF RESPONDENTS

7.1. The Counsel for the Respondents defended the commonimpugned Judgment dated 10.11.2014, and stated that theAppellants have correctly been accorded seniority onlyfrom the date of their regularisation w.e.f. 03.10.2005.

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i) It was submitted that the appointment of the Appellantswas de hors the Bihar Forest Service Rules, 1953 since H

they were made beyond the 40 vacancies notified bythe 1985 Advertisement. The Select List preparedpursuant to the 1985 Advertisement, stood exhaustedwith the appointment of the 39 candidates on14.12.1987. The appointments of the Appellants werenot in accordance with the Bihar Forest Service Rules,1953.

ii) Rule 35 of the Bihar Forest Service Rules, 1953mandates that seniority is to be reckoned form the dateof substantive appointment.

The Appellants were not appointed againstsubstantive posts of ACFs on the date of their initialappointment on 13.04.1988.

iii) The mere continuance in service over a long period oftime, would not entitle the Appellants to claim seniorityfrom the date of their initial appointment; at best, theirclaim could be considered only after they wereregularised w.e.f. 03.10.2005.

iv) It was further submitted that the final Seniority Listpublished on 24.07.1987 wherein the Appellants hadbeen accorded seniority w.e.f. the date of theirappointment i.e. 13.04.1988 was quashed by this Courtvide Judgment and Order dated 31.05.2004 in SanjayK. Sinha – II & Ors. v. State of Bihar & Ors.[3].

7.2. The Counsel for the State and the Official Respondentssupported the common impugned Judgment and Orderdated 10.11.2014, and submitted that the Appellants wouldbe entitled to seniority only from the date of theirregularisation i.e. 03.10.2005.

I) It was submitted that the Appellants were appointed on13.04.1988 on the recommendation of the Commissionsent on a requisition made by the State, after the SelectList against the 1985 advertisement had got exhausted.

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ii) By the Notification dated 09.03.2010, shadow postswere created for appointments, which were found tohave been made against non-existent vacancies.

iii) The appointments of the Appellants came to beregularised on 03.10.2005, after a proposal to that effectwas approved by the Governor.

iv) It was submitted that the inter se seniority of theAppellants was fixed in the final Seniority List dated02.07.2010 after obtaining the opinion of the High-LevelScrutiny Committee headed by the Principal ChiefConservator of Forests, Bihar.

8. DISCUSSIONANDANALYSIS

8.1. As per Rule 35 of the Bihar Forest Service Rules, 1953, theseniority of officers appointed to the Bihar Forest Servicehas to be determined with reference to the date of theirsubstantive appointment.

Rule 35 is extracted hereinbelow for ready reference:

“35.Seniority of officers appointed to the Service shallbe determined with reference to the date of theirsubstantive appointment to the Service.

(i) in the case of members of the Service appointed bydirect recruitment at the same time, their seniority interse shall be in the order of merit in which their namesare placed in the list of successful candidates at theFinal Examination of the Indian Forest College, DehraDun;

(ii) in case where appointments are made to the Serviceboth by direct recruitment and promotion of selectedRangers at the same time, the promoted members of theService shall be senior to the members directly recruited;and

(iii) the seniority inter se of Rangers on substantiveappointment to the Service by promotion at the sametime shall be their seniority inter se held as Rangers.”

Rule 35 came up for consideration before this Court in aprevious round of litigation pertaining to inter se seniority of the1987 Promotees in Sanjay K. Sinha-II & Ors. v. State of Bihar& Ors.[4]. This Court held that:

“12. In this connection we have to note that Rule 35 ofthe Bihar Forest Service Rules provides that seniorityof officers appointed to the service is to be determinedwith reference to the date of their substantiveappointment.In order to become a member of the servicethe person concerned has to satisfy at least twoconditions — first, appointment must be in substantivecapacity, and second, the appointment has to be to thepost in the service according to the Rules and withinthe quota to a substantive vacancy(per KeshavChandra Joshi v. Union of India [1992 Supp (1) SCC272 : 1993 SCC (L&S) 694 : (1993) 24 ATC 545] ).

13. In the present case neither of the two conditions issatisfied. The posts to which substantive appointmentswere to be made were not available, therefore, therecould be no appointment to the service. When there isno appointment to the service, much less substantiveappointment to the service, the promotees could not begiven seniority with effect from the purported date oftheir promotion…

17. It is settled law that appointments made contrary tothe rules are merely fortuitous and do not confer benefitof seniority on the appointees over and above theregular/substantive appointees to the service.(See C.K.Antony v. B. Muraleedharan [(1998) 6 SCC 630 : 1998SCC (L&S) 1624] , M.S.L. Patil, Asstt. Conservator ofForests v. State of Maharashtra [(1996) 11 SCC 361 :1997 SCC (L&S) 241] and State ofMaharashtra v. Sanjay Thakre [1995 Supp (2) SCC407 : 1995 SCC (L&S) 867 : (1995) 30 ATC 132] ).”

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A8.2. An appointment in substantive capacity is one which is notfortuitous or ad hoc, and is made in compliance with theextant rules and regulations.[5]

8.3. The Appellants had admittedly secured appointment as ACFsthrough the back-door by making various representations toBthe Chief Minister on 12.06.1987, the Minister of Forestsand Environment on 21.08.1987, and the Secretary,Department of Forests and Environment on 06.11.1987.

Pursuant to these representations, the State appointedthe Appellants on 13.04.1988 purportedly with reference tothe 1985 advertisement. This was completely illegal andfortuitous, since the posts advertised in 1985 had been filledup from the merit list.

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8.4. Reference may also be made to Rule 24 which provides asunder:

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“24. No recommendations except those invited in formof the application will be taken into consideration. Anyattempt on the part of a candidate to obtain support forhis application by other means will disqualify him forappointment.”

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The recruitment initiated by the 1985 Advertisementculminated with the appointment of ACFs by the State videNotification dated 14.12.1987 against the posts advertised.

With their appointment, the Merit List prepared inpursuance of the 1985 Advertisement stood exhausted, andFno further appointments could have been made from it.[6]

8.5. Rule 22 of the Bihar Forest Service Rules, 1953 providesfor the preparation of the Merit List on the basis of theaggregate marks secured by a candidate in the writtenexamination as well as viva voce test. It provides that theGCommission shall nominate such number of candidates fromthe merit list as may have been fixed by the Governor.

5 Baleshwar Dass & Ors. v. State of U.P. & Ors., (1980) 4 SCC 226 (paragraphs 31and 32); O.P. Singla & Anr. v. Union of India & Ors., (1984) 4 SCC 450 (paragraph 81).6 See Rakhi Ray & Ors. v. High Court of Delhi & Ors., (2010) 2 SCC 637H(paragraphs 7 to 13).

There is no provision for maintaining a Wait List underthe Bihar Forest Service Rules, 1953.

Hence, the appointment of the Appellants was whollyillegal and contrary to the statutory rules.

8.6. In the background facts set out hereinabove, it is abundantlyclear that the appointments of the Appellants were madebeyond the vacancies advertised in 1985, which was incontravention of the well-settled principle of law enunciatedin Rakhi Ray & Ors. v. High Court of Delhi & Ors.[7].The relevant extract from the decision of this Court in RakhiRay & Ors. v. High Court of Delhi & Ors. is reproducedhereinbelow for ready reference:

“7. It is a settled legal proposition that vacancies cannotbe filled up over and above the number of vacanciesadvertised as “the recruitment of the candidates in excessof the notified vacancies is a denial and deprivation ofthe constitutional right under Article 14 read with Article16(1) of the Constitution”, of those persons who acquiredeligibility for the post in question in accordance with thestatutory rules subsequent to the date of notification ofvacancies. Filling up the vacancies over the notifiedvacancies is neither permissible nor desirable, for thereason, that it amounts to “improper exercise of powerand only in a rare and exceptional circumstance and inemergent situation, such a rule can be deviated fromand such a deviation is permissible only after adoptingpolicy decision based on some rationale”, otherwise theexercise would be arbitrary. Filling up of vacancies overthe notified vacancies amounts to filling up of futurevacancies and thus, is not permissible in law.(Vide Unionof India v. Ishwar Singh Khatri [1992 Supp (3) SCC84 : 1992 SCC (L&S) 999 : (1992) 21 ATC 851], GujaratState Dy. Executive Engineers’ Assn. v. State ofGujarat [1994 Supp (2) SCC 591 : 1994 SCC (L&S)1159 : (1994) 28 ATC 78] , State of Bihar v. SecretariatAsstt. Successful Examinees Union 1986 [(1994) 1

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SCC 126 : 1994 SCC (L&S) 274 : (1994) 26 ATC 500 :AIR 1994 SC 736], Prem Singh v. HaryanaSEB [(1996) 4 SCC 319 : 1996 SCC (L&S) 934]and Ashok Kumar v. Banking Service RecruitmentBoard [(1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996)32 ATC 235 : AIR 1996 SC 976] ).”

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8.7. As a result of the persistent lobbying by the Appellants,they were able to secure appointment as ACFs on13.04.1988 purportedly against the 1985 Advertisement. TheCappointment of the Appellants was wholly illegal, and incontravention of the Bihar Forest Service Rules, 1953. Theposts advertised in 1985 were duly filled up by the selectedcandidates. The list of the 1985 advertisement stood fullyexhausted.

D8.8.A fresh selection of ACFs through direct recruitment wasinitiated pursuant to an advertisement in 1987.

8.9. While the recruitment process pursuant to the 1987advertisement was underway, the State requested theCommission to forward 13 names from the list against theE1985 advertisement, which stood exhausted. TheCommission forwarded the names of the Appellants, andsome others purportedly from the list prepared pursuant tothe 1985 advertisement vide letter dated 20.02.1988. Thiswhole process was completely illegal, as the list of 1985had got exhausted.

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8.10. In 1987, 52 Forest Rangers were promoted as ACFs.

Further appointments were made through directrecruitment and promotion in 1990, 1992, and 1995.

8.11. A proposal to regularise the services of the Appellants wasinitiated, taking a humanitarian view of the matter, since bythen the Appellants had already served for almost 17 years.In the proposal, it was mentioned that the appointment ofthe Appellants as ACFs in 1988 was “irregular”. However,the cancellation of the appointments at this juncture would G

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result in further litigation, since it was made on the basis ofa letter from the Commission. The proposal was approvedby the Governor on 03.10.2005.

The State granted confirmation to the Appellants videNotification dated 04.10.2010 w.e.f. from the date of theirregularisation i.e. 03.10.2005.

8.12. The State published the Final Seniority List on 02.07.2010.The Appellants were placed at the bottom of the SeniorityList at Serial Nos. 321 to 338 i.e. below the 1987 Promotees,the Direct Recruits as well as Promotees of 1990,Respondent No. 10 – Hemkant Rai, the 1992 Promotees,and Promotees of 1995 on the basis of the date of regularappointment as ACF.

8.13. The Appellants raised objections to their position on theSeniority List, and claimed seniority from the date of theirinitial appointment on 13.04.1988 and continuous officiationtill their regularisation w.e.f. 03.10.2005.

8.14. In the aforesaid background facts, the Patna High Courtwas fully justified in dismissing the Writ Petitions and theLetters Patent Appeals filed by the Appellants. The HighCourt rightly held that the seniority of the Appellants can bereckoned only from the date of their regularisation in servicew.e.f. 03.10.2005, and not from the date of their initialappointment on 13.04.1988, as claimed by them. TheAppellants had secured an illegal appointment in 1988through the back-door, which was wholly illegal and de horsthe Statutory Rules. Their services came to be regularisedonly on 03.10.2005. As per Rule 35 of the Bihar ForestService Rules, 1953 the seniority of officers shall bedetermined with reference to the date of their substantiveappointment to the service. Hence, the claim for seniorityfrom the date of their initial appointment was whollyuntenable, misconceived, and contrary to statutory Rules.

8.15. In view of the aforesaid findings, the present Civil Appealsare dismissed with no order as to costs. The impugnedJudgment and Order dated 10.11.2014 passed by the Patna A

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672SUPREME COURT REPORTS

[2019] 6 S.C.R.

AHigh Court in L.P.A. Nos. 491 of 2013, 257 of 2013 and509 of 2013 is hereby affirmed.

Pending I.A.s, if any, are disposed of by the presentJudgment.

Ordered accordingly.

B

Divya Pandey

Appeals dismissed.

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