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TMI Blog2007 (5) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... ly appointed Assistant Conservator of Forests (hereinafter referred to as the ACF for short) had challenged an order passed by the State of Arunachal Pradesh dated 8.6.2004 vide No.FOR 376/E(A)/2001/4901-61 granting retrospective effect promotions to the appellants herein with effect from 2.11.1994. With that retrospective effect the respondent nos.3 to 7 herein became junior to the appellants since they were all appointed in the year 1996 after direct examination to the post of ACF. The learned Judge found that giving such retrospective effect would be illegal and on the concerned date they were not even borne on the cadre of ACF and were only serving as Range Forest Officer. He also found that in the unamended Rule 5 which provided for method of Recruitment, there was no 50:50 quota for the direct recruits and the promotees which quota came to be introduced only by way of an amendment effected to Arunachal Pradesh Forest Rules vide notification No.FOR.391/E-A/90/32343 dated 24.9.1999 and as such even if the respondents herein were given more than 50% posts in the cadre of ACF, it was permissible and as such the promotions made of the appellants herein for the first time in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were actually promoted. It is pointed out by the learned Senior Counsel that it was for no fault of the appellants that the promotions were not granted to them and had such DPC being constituted in time as was expected under the administrative norms, they would have been senior to the present respondents who were directly appointed only in the year 1996. Carrying his arguments further, the learned counsel urges that at any rate, the direct appointments made of the respondents in the year 1996 were bound to be held as fortuitous appointments as at the time when the appointments were made, there were already more than 50% posts filled up by the direct appointees. Learned counsel takes us to Rule 5 and points out that under that Rule there was a clear quota of 50% in case of direct appointees while remaining 50% was to go to the promotees. We have been shown the position of the vacancies as occurring in 1996 from which the learned counsel buttresses his arguments that direct appointees were occupying more than 50% posts out of the total cadre posts of 54. According to the learned counsel only 27 posts could have gone to the direct appointees, but on 1.1.1996 28 direct appointees we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had there been a 50:50 quota, then there was no question of the direct appointees overshooting the quota and in that event the direct appointees would have had no case because they had clearly exceeded to 27 posts which would have been available to them under the Rules. 7. It will, therefore, have to be found as to whether there was a quota of 50:50 for the promotees and direct appointees and whether the direct appointees had exceeded their quota on the day of their appointment. 8. For this purpose it would be worthwhile to see the language of Rule 5 before its amendment. Rule 5 before it was amended was as under: 5. Method of Recruitment: Save as provided in Rule 17, appointment to the service shall be made by the following methods, namely: (a) 50% of the substantive vacancies which occur from time to time in the authorized permanent strength of the service shall be filled by direct recruitment in the manner specified in part IV of these rules, and (b) The remaining such substantive vacancies shall be filled by selection in the manner specified in Part V of the Rules from amongst: i) Officers who substantively hold the posts of Forest Rangers and possess the mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proviso is only by way of a clarification and, therefore, this Rule should be viewed with retrospective effect and it should be viewed as if quota was always there even earlier. 9. Considering the plain language of the unamended Rule there can be no dispute that earlier what was contemplated by Rule 5 was only substantive vacancies which occur from time to time in the authorized permanent strength of service . The Rule does not contemplate that there shall be a separate quota for the two categories from out of the cadre strength. The condition of the two categories having 50:50 strength came only by way of amendment. When we see the plain language of the proviso that position becomes all the more clear. Atleast from the plain language of unamended Rule 5 we are unable to see any quota being there for the two categories much less in the ratio of 50:50. On this backdrop when we see the chart of vacancy position, it is apparent that on 1.1.1996, out of 54 sanctioned posts 28 were already filled in by direct recruits and 15 posts were occupied by the promotees. Thus there were in all 43 posts which were occupied and 11 posts were vacant. It seems that these 11 posts were to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this exercise of 20th May, 2004 on its own, that would have given credence to the arguments that the government had always been treating that there was a 50:50 quota in between the direct appointees and the promotees but that did not happen and the government was persuaded to hold another DPC on the basis of the representations and of course the advise tendered by P AR Department in U.O. No.409 dated 21.10.2003. That document is not before us and we have no way to find out as to whether it was put before the High Court to support an argument that the government was always under the impression that there existed a quota. On the other hand the DPC viewed that there were some posts which were bound to be reserved for the Scheduled Tribes candidates and they were bound to be treated as backlog vacancies to be filled up as per 100 points roster and it is for this reason that the posts were to be filled up by the appellants. So far so good, but we completely fail to understand that even when there were backlog vacancies how was the government justified in giving a retrospective effect from 2.11.1994 in four cases and from 31.12.1994 in favour of Shri T. Tapi. There is no justification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly held that the seniority is to be reckoned not from the day when the vacancy arose but from the date on which the appointment is made to the post. There this Court was interpreting Rules 17 and 21 of the U.P. Agriculture Group B Service Rules, 1995 and Rule 8 of the U.P. Government Servants Seniority Rules, 1991. This Court disapproved the stance taken by the High Court that the directions should have been given not from the date of appointment but with retrospective effect when the vacancy arose. The following observations in para 34 are speaking and would close the issue: Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995096 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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