Bihar Forest Service Rules, 1953 – rr.3(aa), 22, 24 & 35 – Respondent No.1-State published advertisement on 24.07.85 inviting applications for filling up 40 posts of Assistant Conservator of Forests (ACF) through direct recruitment – Posts filled up vide Notification dtd.14.12.87– Appellants participated in the selection but were unsuccessful in getting appointed – Appellants with some other unsuccessful candidates made representations inter alia to Chief Minister, Minister of Forests and Environment for appointment against vacant posts beyond the 40 advertised posts – Commission recommended the names of 12 candidates, including the appellants, for appointment as ACFs – Notification dtd. 13.04.88 issued appointing 11 candidates, including the appellants – In 1987, 52 Forest Rangers were also promoted as ACFs – Further appointments were made through direct recruitment and promotion in 1990, 1992 and 1995 – Proposal to regularise the services of the appellants approved by the Governor on 03.10.05 – Appellants confirmed vide notification dtd. 04.10.10 w.e.f. from the date of their regularisation i.e. 03.10.05 – State published the Final Seniority List – Appellants placed 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 – Appellants filed writ petitions – Dismissed – LPAs also dismissed – Held: As per r.35 of the Bihar Forest Service Rules, 1953, the seniority of officers appointed to the Bihar Forest Service has to be determined with reference to the date of their substantive appointment – An appointment in substantive capacity is one which is not fortuitous or ad hoc, and is made in compliance with the extant rules and regulations – Appointment of the appellants were made beyond the vacancies advertised in 1985 – Appellants admittedly secured appointment as ACFs through the back-door by making various representations and persistent lobbying – Pursuant to these representations, the State appointed the appellants on 13.04.88 purportedly with reference to the 1985 advertisement – This was illegal and fortuitous, since the posts advertised in 1985 had been filled up from its merit list which stood fully exhausted – There is no provision for maintaining a Wait List under the 1953 Rules– Hence, the appointment of the appellants was wholly illegal and contrary to the statutory rules – Proposal to regularise the services of the appellants was initiated, taking a humanitarian view, since by then the Appellants had already served for almost 17 years – High Court rightly held that the seniority of the appellants can be reckoned only 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, as claimed by them – Impugned judgment affirmed.
Dismissing the appeals, the Court
HELD: 1.1 As per Rule 35 of the Bihar Forest Service Rules, 1953, the seniority of officers appointed to the Bihar Forest Service has to be determined with reference to the date of their substantive appointment. An appointment in substantive capacity is one which is not fortuitous or ad hoc, and is made in compliance with the extant rules and regulations. The Appellants had admittedly secured appointment as ACFs through the back-door by making various representations to the Chief Minister on 12.06.1987, the Minister of Forests and Environment on 21.08.1987, and the Secretary, Department of Forests and Environment on 06.11.1987. Pursuant to these representations, the State appointed the Appellants on 13.04.1988 purportedly with reference to the 1985 advertisement. This was completely illegal and fortuitous, since the posts advertised in 1985 had been filled up from the merit list. [Paras 8.1, 8.2 and 8.3][666-D; 668-A-C]
1.2 The recruitment initiated by the 1985 Advertisement culminated with the appointment of ACFs by the State vide Notification dated 14.12.1987 against the posts advertised. With their appointment, the Merit List prepared in pursuance of the 1985 Advertisement stood exhausted, and no further appointments could have been made from it. Rule 22 of the Bihar Forest Service Rules, 1953 provides for the preparation of the Merit List on the basis of the aggregate marks secured by a candidate in the written examination as well as viva voce test. It provides that the Commission shall nominate such number of candidates from the merit list as may have been fixed by the Governor. There is no provision for maintaining a Wait List under the Bihar Forest Service Rules, 1953. Hence, the appointment of the Appellants was wholly illegal and contrary to the statutory rules. IThe appointments of the Appellants were made beyond the vacancies advertised in 1985, which was in contravention of the 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 13.04.1988 purportedly against the 1985 Advertisement. The appointment of the Appellants was wholly illegal, and in contravention of the Bihar Forest Service Rules, 1953. The posts advertised in 1985 were duly filled up by the selected candidates. The list of the 1985 advertisement stood fully exhausted. [Paras 8.7][670-C-D]
1.4 Proposal to regularise the services of the Appellants was initiated, taking a humanitarian view of the matter, since by then the Appellants had already served for almost 17 years. In the proposal, it was mentioned that the appointment of the Appellants as ACFs in 1988 was “irregular”. However, the cancellation of the appointments at that juncture would result in further litigation, since it was made on the basis of a letter from the Commission. [Paras 8.11][670-G-H; 671-A]
1.5 In the aforesaid background facts, the High Court was fully justified in dismissing the Writ Petitions and the Letters Patent Appeals filed by the Appellants. The High Court rightly held that the seniority of the Appellants can be reckoned only from 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 High Court is affirmed. [Paras 8.14, 8.15][671-E; 672-A] Baleshwar Dass & Ors. v. State of U.P. & Ors. (1980) 4 SCC 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 – relied on.
Sanjay k. Sinha -II & Ors. v. State of Bihar & Ors. (2004) 10 SCC 734 : [2004] 2 Suppl. SCR 834
– referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.