ASHOK RAM PARHAD & ORS. versus THE STATE OF MAHARASHTRA & ORS. on 15 March 2023

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[2023] 2 S.C.R. 900

SUPREME COURT REPORTS

[2023] 2 S.C.R.

AASHOK RAM PARHAD & ORS.

v.

THE STATE OF MAHARASHTRA & ORS.

(Civil Appeal No. 822 of 2023)

BMARCH 15, 2023

[SANJAY KISHAN KAUL AND ABHAY S. OKA, JJ.]

Divisional Forest Officer (in Maharashtra Forest Service,Class I) (Recruitment) Rules, 1984 – Proviso to r.2 – MaharashtraForest Service, Group A (Junior Scale) (Recruitment) Rules, 1998 –Crr.3(b), 6 – Appellants who were recruited in 2014 and underwent atraining, were appointed to the post of Assistant Conservator ofForest (ACF) through nomination (direct appointment) in 2016whereas respondent nos.4 to 9 were directly promoted to the post ofACF in 2014 and were not required to undergo the aforesaid trainingD– Appellants filed application before Tribunal for declaration thattheir appointment be considered from the date of commencement ofthe training and, that the training period undergone be consideredas period of service – A direction was also sought for payment ofsalary as per the pay scale prescribed for the post of ACF byconsidering the period of training as on probation/duty – TribunalEpartly allowed the appellants’ application – Review application filedby respondent no.1 was dismissed – Thereafter, Governmentaccepting the judgment, passed Resolution resolving that successfulcompletion of training period would be considered as regular servicefrom the date of inception of training for all service purposes – TheFResolution also provided that the ACF appointed by nominationshall be considered from the initial date of their training and theseniority will be considered accordingly – Respondent nos.4 to 9filed writ petition before the High Court on the ground that thoughthey were promoted as ACF before the appellants but were shownjunior to the appellants in the seniority list of ACF – High CourtGopined that the respondents would not be affected by the Tribunal’sorder to the extent of directing payment of salary and the pay scaleto the appellants from the date of initiation of the training period,as the respondents’ right would only be affected while consideringthe seniority vis-à-vis promotion to the post of Divisional ForestHOfficer (DFO) – Direction of the Tribunal to pay salary to them as per the pay scale was found reasonable – With regard to theseniority, the High Court held that the seniority of persons selectedfor the post of ACF by nomination shall be counted from the date ofissuance of appointment order after successful completion of trainingqua the person appointed to ACF by promotion – On appeal, held:Proviso to r.2 of the 1984 Rules is unambiguous – Appointment isdifferent from the recruitment process, which starts with thecommencement of training – High Court’s view is correct –Government resolutions cannot override statutory rules – In thepresent case, the resolutions have been passed in the context thatthe person who successfully completes the training effectively getsthe monetary compensation for his training period and is notdeprived of the same – This cannot amount to giving seniority fromthe date of initial recruitment process to determine inter se seniority,when the Proviso to r. 2 of the 1984 Rules makes the date ofappointment for direct recruits clear – Even if the GovernmentResolution dated 25.01.1990 upgraded the post of ACF from ClassII to Class I, the Proviso to r.2 of the 1984 Rules will continue tohold valid in determining the period of service – Further, rr.3B and6 of the 1988 Rules leave no ambiguity and in fact read in consonanceand the period of probation has to be necessarily excluded fromperiod of service – The resolutions neither speaking about promotionto the post of DFO nor about seniority conclusively, the Provisowould operate with full force – Entrance and Training Rules (Revised)for the State Forest Service Officers, 2004 – Constitution of India –Art. 309.

Conclusion

Service Law – Government resolutions vis-à-vis statutory rule– Held: In service jurisprudence, the service rules are liable toprevail – There can be Government resolutions being in consonancewith or expounding the rules, but not in conflict with the same –Government resolutions issued by the Administrative Departmentcannot have the status of a statutory rule.

Dismissing the appeal, the Court

HELD: 1.1 In service jurisprudence, the service rules areliable to prevail. There can be Government resolutions being inconsonance with or expounding the rules, but not in conflict withthe same. The statutory Rules framed under Article 309 of theConstitution, i.e., the 1984 Rules, Rule 2 refers to the appointment AB

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Ato the post of the DFO and the same to be made by promotionfrom amongst officers of the Maharashtra Forest Service and alsoby appointment directly. The Proviso to Rule 2 of the 1984 Rulesis unambiguous and quite clear, i.e., the period spent on trainingat Government Forest Colleges and other period of probationincluding extended period of probation, if any, “shall not beBcounted towards the requisite period of service.” Thus, what isenvisaged is that the appointment is different from therecruitment process, which starts with the commencement oftraining. There can be possibilities of a candidate not completingthe training satisfactorily, thereby resulting in the candidate’sCremoval on probation. Such probation period can also be extendedto see whether a candidate improves in performance. (Hence,even if the Government Resolution dated 25.01.1990 upgradedthe post of ACF from Class II to Class I, the Proviso to Rule 2 ofthe 1984 Rules will continue to hold valid in determining theperiod of service.) [Para 25][911-F-G; 912-A-B]D

1.2 In the aforesaid context if this Court turns to the 1998Rules, more specifically Rule 3(b), the stipulation is that in caseof a nomination, the same is based on the result of the competitiveexamination held by the Commission in accordance with the Rulesand the candidate is required to have “successfully completedEthe training course.” Rule 6 provides for probation for a periodof three years including two years of ACF training course andone year field training, as decided by the Principal ChiefConservator of Forests. Thus, even reading of these extant Rulesmakes the process for such direct recruitments quite clear. TheFEntrance and Training Rules (Revised) for the State ForestService Officers, 2004 (“2004 Rules”) are comprehensive incharacter and set forth how the recruitment process will takeplace. On behalf of the appellants there is overemphasis on theexpression “person appointed to the post by nomination” underRule 6 of the 1998 Rules, without appreciating the context inGwhich such expression has been used. In contending that theinterpretation given by the High Court would amount to makingthe opening part of Rule 6 otiose, what is lost sight of is thatwere the appellants’ plea to be accepted, it would amount tomaking the Proviso to Rule 2 of the 1984 Rules otiose. TheH

Government resolutions issued by the AdministrativeDepartment cannot have the status of a statutory rule althoughsuch resolutions may have their own effect. The High Court’sview is the correct view. The resolutions have been passed inthe context that the person who successfully completes thetraining effectively gets the monetary compensation for his trainingperiod and is not deprived of the same. This cannot amount togiving seniority from the date of initial recruitment process todetermine inter se seniority, when the Proviso to Rule 2 of the1984 Rules makes the date of appointment for direct recruitsclear. This is also in the background that while the directappointees have no experience in the field having been freshlyrecruited, the promotees have been doing the task. In the presentcase, the very factum of Proviso to Rule 2 of the 1984 Rulesbeing inserted in the rule has to be assigned a meaning, asotherwise, it would imply that the Proviso has become otiose. Itcannot be said that the Proviso is not to be read in the context ofthe aspect of promotion. Rules 3B and 6 of the 1988 Rules alsoleave no ambiguity in this behalf and in fact read in consonanceand the period of probation has to be necessarily excluded fromperiod of service. The grant of monetary benefit is a differentaspect. On having come to the conclusion that the Governmentresolutions cannot override statutory rules, and the resolutionsneither speaking about promotion to the post of DFO nor aboutseniority conclusively, the Proviso would operate with full force.The applicable Rules leave no ambiguity in the matter and mustprevail. [Paras 26-32][912-C-H; 913-A, C-F]

R. S. Ajara & Ors. v. State of Gujarat (1997) 3 SCC641; Prafulla Kumar Swain v. Prakash Chandra Misra& Ors. (1993) 3 Supp SCC 181; Commandant, 11thBattalion, A.P. Special Police (IR) v. B. Shankar Naik(2003) 5 SCC 580 – referred to.

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 822 of2023.

From the Judgment and Order dated 23.04.2021 of the High Courtof Judicature at Bombay at Aurangabad in WP No. 2026 of 2019.

P. S. Patwalia, Sr. Adv., Somiran Sharma, Adv. for the Appellants.

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Sudhanshu S. Choudhari, Aniruddha Joshi, SiddharthDharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Amit Singh,Lokesh Dutt Sharma, Ms. Kirti Dadheech, Rameshwar Prasad Goyal,Gagan Sanghi, Akash Kakade, Somanatha Padhan, Ashok Anand, SwetabKumar, Pawan Kaushik, Advs. for the Respondents.C

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

1. This is one more unending dispute arising between direct recruitsand promotees qua their inter se seniority. The post for which theDrecruitment took place was the Assistant Conservator of Forest(hereinafter referred to as “ACF”). The method of recruitment for thesaid post was twofold – nomination (direct appointment) and promotion.Recruits to ACF by promotion assume charge from the day they arepromoted to the said post and are not required to undergo two years ofACF training and one year of field training. This is distinct from theEpersons selected and appointed by nomination where such training iscompulsory.

2. The ACF post, in turn, is the feeder cadre to the post ofDivisional Forest Officer (hereinafter referred to as “DFO”). As perRule 5 of the Assistant Conservator of Forests in the Maharashtra ForestFService, Group A (Junior Scale) (Recruitment) Rules, 1998 (hereinafterreferred to as the “1998 Rules”), appointment to the post of ACF shallbe in the ratio of 50:50 from these two sources.

3. The appellants before us were appointed to the post of ACFthrough nomination in 2016. They had been recruited in 2014 and wentGthrough a training. Respondent nos.4 to 9 were directly promoted to thepost of ACF in 2014.

Litigation History:

4. The Maharashtra Public Service Commission, respondent no.3,Hissued an advertisement on 14.12.2012 to fill up a total of 33 posts of

ACF through Maharashtra Forest Service Examination, 2012. Theappellants applied for the post, for which the selection list was publishedon 13.06.2013. However, instead of issuing appointment orders appointingthe appellants on probation, respondent no.1 issued a letter dated19.06.2013 informing the appellants that they will be sent to pre-appointment training. The appellants claimed that their representation toremedy the same remained unanswered.

5. The appellants thus filed an application before the MaharashtraAdministrative Tribunal at Mumbai (hereinafter referred to as the“Tribunal”) for declaration that their appointment as ACF be consideredfrom the date of commencement of the training and, that the trainingperiod undergone by them be considered as period of service. They alsosought a direction for payment of salary as per the pay scale prescribedfor the post of ACF by considering the period of training as on probation/duty.

6. The Tribunal, in terms of its order dated 03.02.2016, partlyallowed the application of the appellants. It was observed that therecruitment rules for the post of ACF in the Maharashtra Forests ServiceClass II (hereinafter referred to as “the 1965 Rules”), which wereaccompaniment to the Government Resolution dated 17.02.1965, interalia provided that a candidate was eligible for the post of ACF aftercompleting the prescribed course of training. However, these Rules werenot framed under Article 309 of the Constitution, and were never finalised.Moreover, the draft rules had been superseded by the 1998 Rules, aswas also provided in the Preamble of 1998 Rules. The respondents’ pleathat the candidate would be eligible to be given regular pay scale aftersuccessful completion of probation of three years, was turned downwhile opining that no reason was given for non-applicability of Rule 10of the Maharashtra Civil Services (General Conditions of Services) Rules,1981 (hereinafter referred to as the “1981 Rules”), whereby the personshall draw minimum of time scale attached to the post to which he isappointed. It was held that the appellants will be entitled to regular payafter successful completion of probation, retrospectively from the dateof appointment, after deducting the amounts of ‘stipend’ already paid tothem. More significantly, it was declared that the appellants will be entitledfor appointment as ACF from the commencement of their training on01.02.2014.

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A7. The review application filed by respondent no.1 before theTribunal was dismissed on 16.09.2016 observing that whether the 1965Rules were ‘draft’ or not had no bearing upon the outcome of theapplication, as the same were superseded by the 1998 Rules and allissues raised in the review application had already been decided in theoriginal application.B

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8. The Government apparently accepted the aforesaid judgmentand thus passed a Resolution dated 14.08.2018, resolving that successfulcompletion of training period would be considered as regular servicefrom the date of inception of training for all service purposes. TheResolution also provided that the ACF appointed by nomination shall beCconsidered from the initial date of their training and the seniority will beconsidered accordingly. Respondent nos. 4 to 9 herein were not partybefore the Tribunal but filed the writ petition before the High Court, bothagainst the appellants as well as against the Government of Maharashtra(who had accepted the Tribunal’s judgment). These private respondentsDclaimed that they were appointed as Range Forest Officers in 1987 to1990 and were promoted to the post of ACF in 2014-2015. Their grievancewas that though they were promoted as ACF before the appellants herein,they were shown junior to the appellants in the seniority list of ACF.

9. The case of respondent nos. 4 to 9 was based on the 1998ERules; more specifically Rule 6 read with Rule 3(b) of the said Rulesand Proviso to Rule 2(B) of the Divisional Forest Officer (in MaharashtraForest Service, Class I) (Recruitment) Rules, 1984 (hereinafter referredto as the “1984 Rules”). The said Rules are reproduced hereinbelow:

Rule 6 of the 1998 Rules

F“A person appointed to the post by nomination shall be on probationfor a period of three years including two years of AssistantConservator of Forests training course and 1 year field training asdecided by Principal Chief Conservator of Forests, Maharashtrastate, Nagpur” (sic.)

.... .... .... .... ....

GRule 3 (b) of the 1998 Rules

“3. Appointment to the post of Assistant Conservator of Forestsin the Maharashtra Forest Service, Group A (Junior Scale) shallbe made either –

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(b) by nomination from amongst candidates who are selected forthe Assistant Conservator of Forests training course, on the basisof result of the competitive examination held by the commissionin accordance with the rules made in this behalf from time to timeand have successfully completed the training course.”

.... .... .... .... ....

Proviso to Rule 2 of 1984 Rules

“Provided that, in the case of persons directly appointed asAssistant Conservator of Forests, the period spent on training atthe Government Forest Colleges and the period of probation,including the extended period of probation, if any, shall not becounted towards the requisite period of service.”

10. The significant aspect is the Proviso to Rule 2 of the 1984Rules, which specifically stipulated that the period spent on training atthe Government Forest College by directly appointed ACF shall not becounted towards the requisite period of service for purposes ofappointment to the cadre of DFO. It is this which is the bedrock of theplea of the private respondents. The respondents also relied on a judgmentof this Court on R.S. Ajara & Ors. v. State of Gujarat[1] for theproposition that an administrative resolution cannot take away a rightcrystallized under the service rules.

11. On the other hand, the appellants’ case before the High Courtwas that the Proviso to Rule 2 of 1984 Rules stood negated in view ofthe Government Resolution dated 17.02.1997, wherein the condition ofprobation period not being considered as period of experience had beenremoved. It was submitted that Rule 6 of 1998 Rules specified thatpersons appointed to the post by nomination shall be on probation forthree years including two years of ACF training and one year of fieldtraining. There was a marked distinction between 1965 Rules and 1998Rules, as the former separately referred to recruitment and appointmenton probation, whereas the latter referred to appointment on probationfor three years, including the period of training. Relying on the samejudgment in the case of R.S. Ajara & Ors.[2], it was contended that thetraining period prior to the appointment can also be considered for thepurposes of seniority.

1(1997) 3 SCC 641.

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AProceedings before the High Court

12. The High Court passed an interim order dated 18.04.2019restraining the respondent authorities from issuing any promotion orderbased on the judgment of the Tribunal dated 03.02.2016. The aboveorder was modified on 23.08.2019 by directing that any promotion madeBwould be subject to the outcome of the writ petition.

13. The matter was finally adjudicated by the High Court vide theimpugned judgment dated 23.04.2021. It was opined that respondentnos. 4 to 9 would not be affected by the Tribunal’s order to the extent ofdirecting payment of salary and the pay scale to the appellants from theCdate of initiation of the training period, as the respondents’ right wouldonly be affected while considering the seniority vis-à-vis promotion tothe post of DFO. Since Rule 3(b) read with Rule 6 of the 1998 Rulesshows that the period of training is considered as probation, the directionof the Tribunal to pay salary to them as per the pay scale was found tobe reasonable.D

14. However, on the aspect of fixation of seniority, it was opinedthat the case of R.S. Ajara & Ors.[3] was on a factual scenario where, inthe absence of rules regarding fixation of seniority of persons appointedto ACF, a Government Resolution was issued suggesting determinationof seniority of directly recruited ACF in Gujarat State Forest ServicesEClass IIby taking into account the period of training. A reference wasalso made to Prafulla Kumar Swain v. Prakash Chandra Misra &Ors.,[4] where Regulation 12(c) of the Orissa Forest Services Class IIRecruitment Rules, 1959 provided that appointment to service is tocommence only after successful completion of training, and hence theFseniority would be reckoned from the date of appointment and not dateof recruitment. No such similar Government Resolution or Regulationproviding for fixation of seniority existed in the present matter.

15. The reasoning of the High Court was based on the 1984 Ruleswhich were framed under the Proviso to Article 309 of the ConstitutionGand have statutory force. On the other hand, the Government Resolutiondated 17.02.1997 was issued under Article 162 of the Constitution byGeneral Administration Department of Government of Maharashtra andhence does not have an overriding effect upon the 1984 Rules. While 3 (Supra).H4 1993 Supp (3) SCC 181.

the said Resolution provides that probation period shall be consideredfor purposes of experience, the 1984 Rules require the period spent onprobation and/or training to be excluded and only the period afterappointment order on successful completion of training and/or probationto be computed for purposes of promotion to the post of DFO.

16. Even on examination of 1998 Rules, the High Court came tothe same conclusion. Even though the said Rules prescribed fixation ofseniority amongst persons appointed by nomination, their seniority is notfixed unless and until they pass the final examination of the ACF trainingcourse. Thus, Rule 6 of 1998 Rules was found to be in consonance withRule 3(b) of the 1998 Rules where the Commission selects candidatesfor the ACF training course and only after successful completion oftraining and passing the competitive final examination, would thecandidates be issued the appointment order of ACF. It was observedthat Rule 7 of 1998 Rules only prescribed the methodology of fixation ofinter se seniority of the ACF appointed by nomination and does notprovide for fixation of seniority between those appointed by promotionand nomination. The High Court thus held that the seniority of personsselected for the post of ACF by nomination shall be counted from thedate of issuance of appointment order after successful completion oftraining qua the person appointed to ACF by promotion.

Proceedings and Arguments before this Court:

17. On 30.06.2021 while issuing notice in the SLP, this Courtdirected the position, as was prevalent prior to the impugned judgment,to continue to operate for the time being. On 07.02.2022, it was submittedthat both sets of parties had not been promoted. Leave was granted on02.02.2023.

18. On behalf of the appellants, an endeavour was made to traceout the history of the creation of the post of the ACF which was formerlya Class II post initially governed by the 1965 Rules. Appointment bynomination was on probation for two years (extendable) from amongcandidates who successfully completed the course of training afterselection. Thus, training and probation were different terminologies andtraining was not considered as appointment to the post. However, thiswas stated to change with the adoption of the 1998 Rules coming intoexistence. In terms of Rules 3 and 6 of the 1998 Rules, the period oftraining is now considered as period of probation and Rule 6 opens withthe expression “a person appointed to the post by nomination”, which is A

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Adescribed under Rule 3(b). The appointment by nomination precedesthe training and the expression “and have” under Rule 3(b) must not beread as “after” to interpret Rule 3(b) as laying down an eligibilityqualification for appointment, or else the opening part of Rule 6 wouldbe rendered otiose. It was thus submitted that the High Court fell into anerror in coming to the conclusion that the appointment has to be madeBonly after completion of training course, as this expression was not foundin Rule 3(b). Reliance was placed on the judgment of this Court inCommandant, 11[th] Battalion, A.P. Special Police (IR) v. B. ShankarNaik[5]to contend that training which was given cannot be renderedpurposeless.C

19. It was next contended that the Government Resolution dated17.02.1997 was issued by the General Administrative Department,Maharashtra “by order and in the name of the Governor of Maharashtra”,which is a deemed rule under Article 309 of the Constitution. The saidResolution provides that service during probation should be consideredDas experience for promotion. It is submitted that an incongruous situationhas arisen in view of the impugned judgment, where for the purposes ofsalary, the appellants will be considered to be appointed as from date ofcommencement of their training on 01.12.2014, but for selection, thedate of appointment is to be considered after appointment order issuedon successful completion of training.E

20. The judgment in Prafulla Kumar Swain[6] case was sought tobe distinguished on facts as Regulation 12(c) of the Orissa Forest ServicesClass II Recruitment Rules, 1959 in the said judgment contemplated thatsuch service will count only from the date of appointment to the serviceafter successful completion of the course of training.F

21. Reliance was also sought to be placed on 1981 Rules, morespecifically Rule 9(14) defining “duty” to include service as probationerand a course of instructions or training authorized by or under the ordersof the Government. It was further submitted that the 2004 Rules did notdetermine the date of appointment by nomination to the post of ACF,Gand the 1998 Rules also did not offer any guidance to determine theinter se seniority between the promotees and direct recruits. It wasstated that for determination of seniority, Rule 4 of the MaharashtraCivil Services (Regulation of Seniority) Rules, 1982 would be applicable.

5 (2003) 5 SCC 580.H6 (supra)

22. On the other hand, the respondents defended the impugnedjudgment to contend that there could be no ambiguity that the period oftraining at the Government Forest Colleges and the period of probationincluding the extended period of probation, if any, had to be necessarilyexcluded for computing the period of service. The appointment ordershad been issued qua the appellants long after the respondents wereappointed as ACF. Further, Rule 2(a) read with Rules 3 and 7 of the1998 Rules had clarified that the nominated ACF would be entitled foran appointment only after completion of training. Training could not be amere formality and in Prafulla Kumar Swain[7] case, this Court whileapplying similar rules held that recruitment is just an initial process andmay lead to eventual appointment in service.

23. The respondents further submitted that the endeavour of theappellants to rely on Government Resolutions dated 25.01.1990,29.07.1993 and 17.02.1997 and claim that Rule 2 of the 1984 Rules hadno relevance is fallacious as, Government Resolutions cannot overridethe Rules. Further, the Resolutions neither speak about the promotion tothe post of DFO nor about how the seniority had to be reckoned forACF appointed by promotion or by nomination.

Conclusion:

24. We have considered the aforesaid rival submissions andperused the impugned judgment.

25. In service jurisprudence, the service rules are liable to prevail.There can be Government resolutions being in consonance with orexpounding the rules, but not in conflict with the same. On having setforth this general proposition, we now examine the scenario of the Rulesas prevalent. If we turn to the statutory Rules framed under Article 309of the Constitution, i.e., the 1984 Rules, Rule 2 refers to the appointmentto the post of the DFO and the same to be made by promotion fromamongst officers of the Maharashtra Forest Service and also byappointment directly. The Proviso to Rule 2 of the 1984 Rules isunambiguous and quite clear, i.e., the period spent on training atGovernment Forest Colleges and other period of probation includingextended period of probation, if any, “shall not be counted towards therequisite period of service.” Thus, what is envisaged is that theappointment is different from the recruitment process, which starts with 7 (supra).

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Athe commencement of training. There can be possibilities of a candidatenot completing the training satisfactorily, thereby resulting in thecandidate’s removal on probation. Such probation period can also beextended to see whether a candidate improves in performance. (Hence,even if the Government Resolution dated 25.01.1990 upgraded the postof ACF from Class II to Class I, the Proviso to Rule 2 of the 1984 RulesBwill continue to hold valid in determining the period of service.)

26. In the aforesaid context if we turn to the 1998 Rules, morespecifically Rule 3(b), the stipulation is that in case of a nomination, thesame is based on the result of the competitive examination held by theCommission in accordance with the Rules and the candidate is requiredCto have “successfully completed the training course.” Rule 6 providesfor probation for a period of three years including two years of ACFtraining course and one year field training, as decided by the PrincipalChief Conservator of Forests. Thus, even reading of these extant Rulesmakes the process for such direct recruitments quite clear. The EntranceDand Training Rules (Revised) for the State Forest Service Officers, 2004(hereinafter referred to as the “2004 Rules”) are comprehensive incharacter and set forth how the recruitment process will take place.

27. We do believe that on behalf of the appellants there is over-emphasis on the expression “person appointed to the post by nomination”Eunder Rule 6 of the 1998 Rules, without appreciating the context in whichsuch expression has been used. In contending that the interpretationgiven by the High Court would amount to making the opening part ofRule 6 otiose, what is lost sight of is that were the appellants’ plea to beaccepted, it would amount to making the Proviso to Rule 2 of the 1984Rules otiose. The Government resolutions issued by the AdministrativeFDepartment cannot have the status of a statutory rule although suchresolutions may have their own effect.

28. It appears to us that the High Court’s view is the correctview. The resolutions have been passed in the context that the personwho successfully completes the training effectively gets the monetaryGcompensation for his training period and is not deprived of the same.This cannot amount to giving seniority from the date of initial recruitmentprocess to determine inter se seniority, when the Proviso to Rule 2 ofthe 1984 Rules makes the date of appointment for direct recruits clear.This is also in the background that while the direct appointees have no H

experience in the field having been freshly recruited, the promotees havebeen doing the task.

29. We fail to appreciate how the judgment in Prafulla KumarSwain[8] case can be distinguished in this behalf merely by reason of theregulation therein containing the expression “only”. It is not necessaryto refer to factual scenarios of different judgments and different rules orgeneral definition of what would amount to be on “duty”, when the rulein question is quite clear. We say so even in the context of the judgmentin R.S. Ajara & Ors.[9] case as in any service, whether on the issue ofappointment or promotion, it is what the rule says, which will matter.One cannot derive general principles to decide such issues. We doappreciate that there can be scenarios where the rule specifically statesto the contra. But, in the present case, the very factum of Proviso toRule 2 of the 1984 Rules being inserted in the rule has to be assigned ameaning, as otherwise, it would imply that the Proviso has become otiose.It cannot be said that the Proviso is not to be read in the context of theaspect of promotion.

30. We also find that Rules 3B and 6 of the 1988 Rules also leaveno ambiguity in this behalf and in fact read in consonance and the periodof probation has to be necessarily excluded from period of service. Asalready stated, the grant of monetary benefit is a different aspect.

31. On having come to the conclusion that the Governmentresolutions cannot override statutory rules, and the resolutions neitherspeaking about promotion to the post of DFO nor about seniorityconclusively, the Proviso would operate with full force.

32. We are thus of the clear view that the applicable Rules leaveno ambiguity in the matter and must prevail.

33. The result of the aforesaid is that the appeal is dismissedleaving the parties to bear their own costs.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeal dismissed.

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