9911796707
TMI Blog2007 (5) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... r by the Andaman Nicobar Administration. They were W.P. C.T.No.209 of 1999 and W.P.C.T.No.246 of 1999. The judgment of the Tribunal was itself passed in review whereby the Review Petition filed by the appellant was allowed and the earlier judgment passed by the Tribunal was upset and the Original Application filed by the appellant was allowed. The following facts would be necessary to understand the controversy involved. 3. The appellant, at the relevant time when he approached the Tribunal, was holding the post of Assistant Mill Manager (hereinafter referred to as AMM for short) in the Forest Department of Andaman. The Service Profile of the appellant is as under: He started his service as a Casual Labour on 12.7.1976. He was appointed as Draftsman on adhoc basis on 20.7.1976 and thereafter as Assistant Constructional Engineer w.e.f. 26.12.1980 and was posted in Saw Mill Division, Chatham where he continued till March, 1984 in that capacity. In March, on the basis of the recommendations of the Departmental Promotion Committee for Group B post, he was promoted as Assistant Mill Manager, Saw Mill Division vide notification dated 16.3.1984. His claim is that thereafter he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Conservator of Forests of the Andamans Forest Department or officers holding posts in an equivalent grade in the Adamans Forest Department with not less than 5 years service in the grade . The other mode of recruitment was deputation with which we are not concerned. At Serial No.4 is the post of Assistant Conservator of Forests. The Rules suggest that there are nine posts which were Class-II gazetted non-ministerial posts carrying the pay-scale of Rs.350-25-500-30- 590-EB-30-800-EB-30-830-35-900. Column 7 which provides the qualifications reads as under: Essential: Associateship Diploma of the Forest Research Institute and Colleges, Dehradun or equivalent. Candidates selected for training at Dehradun will be required to possess the following educational qualifications: Degree in Natural Science, Maths, Geology, Mechanical Engineering or Agriculture of recognized University or equivalent qualification. In so far as the post of AMM is concerned, it appears at Serial No.5, which is also a Class-II Gazetted non-ministerial post carrying the pay-scale of Rs.350-25-500-30-590-EB-30-800-EB-30-800 if the post if filled by the direct recruitment. However, the pay-scale is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est Department (with 10 years service in the grade) Promotion Trained Forest Rangers of Andaman Forest Department having seven (7) years service in the grade rendered after appointment thereto on a regular basis. AMM Transfer, failing which by direct recruitment Promotion Assistant Constructional Engineer and Superintendent Timber Treatment Plant and Seasoning Kiln with 3 years service in the respective grades. Transfer Assistant Conservator of Forests possessing at least 3 years. 5. On the basis of these Rules, it was contended by the appellant before the Tribunal that particularly after the amendment in 1973 the post of AMM became equivalent to that of ACF. The 1963 Rules as well as 1973 Rules were still in vogue and, therefore, there was a channel for promotion to the post of DCF from the post of ACF as was originally provided and now from the post of an equivalent grade. Since the 1973 the post of AMM became equivalent to the post of ACF and, therefore, he was also bound to be considered for promotion to the post of DCF as per the 1963 Rules as amended in 1973. The appellant also relied upon the Gradation Lists from which the appellant sought to read the equivalence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that the definition given under the IFS (Recruitment) Rules, 1966 of the term of State Forest Service in the State being a service connected with forestry. Only the members thereof having gazetted status as the Central Government may, in consultation with the State Government, approve for the purposes of those Rules or any service in such Central Civil posts of Class-I and Class-II connected with forestry as may be approved by the Central Government could walk into the IFS. It was pointed out that AMM was not such a post as it was not even concerned with the forestry. It was further pointed out that the post of ACF alone was classified as A N Island Forest Service under para 20A of the A N Ilsnad Forest Service and under para 20A of the A N Forest Department Code, 1975. It was pointed out that the post of AMM was classified as gazetted staff outside the cadre of A N Forest Service along with other gazetted posts such as Veterinary Officer, Accounts Officer, Senior Assistant Engineers, etc. As regards 1963 Rules, the Department contended that the AMM was not included as a feeder cadre for promotion to the post of DCF in the Recruitment Rules of 1963 nor was it a post of equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be viewed as a member of the State Forest Service. The Tribunal also took into consideration the argument regarding the Gradation Lists relied upon by the petitioner as they existed on 1.1.1989 and 1.1.1990 and came to the conclusion that these gradation lists were erroneous and could not be relied upon to come to the conclusion that the AMM was a member of A N Forest Service. It, therefore, came to the conclusion that even if the appellant was a member of A N Forest Department , he could not be said to be a member of the State Forest Service as envisaged in IFS (Recruitment) Rules 1966. The Tribunal also noted that a new avenue was, however, made available for the technical post of AMM in 1988 and it was also pointed out that the newly created post of Production Manager was equivalent to DCF as regards classification and pay-scales. The Tribunal also gave a specific finding that the post of AMM was not connected with forestry. In that the Tribunal noted the promotion channel to the post of ACF vis-`-vis the AMM and pointed out that those in the feeder posts to the promotion of ACF were essentially the persons connected with forestry whereas in case of AMM such was the counter p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Forest Department, therefore, the Mill Division was connected with forestry. The Tribunal further came to the conclusion that the post of AMM and ACF were equivalent and feeder posts for promotion to the post of DCF. The Tribunal came to a finding that if Rule 2(g)(ii) , Rule 4(2)(b), Rule 8 of IFS (Recruitment) Rules, 1966 are read along with the proviso to Explanation I under Regulation 5(2) of the IFS (Appointment by Promotion) Regulations, 1966 which were framed in pursuance of Sub-Rule (1) of Rule 8 of IFS (Recruitment) Rules, 1966 and in consultation with the State Government and Union Public Service Commission, the officers belonging to the category of Rule 2(g) of the Recruitment Rules, 1966 can be considered for promotion to the Union Territory cadre of Forest Department of Andaman for the purposes of inclusion in the select list. It was further found that there was an object of consideration for promotion to the Union Territory cadre for publication of the notification incorporating the proviso into the proviso to Explanation I of Regulation 5(2) of the IFS (Appointment by Promotion) Regulations, 1966 and therefore, there was no further notification required for the consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of DCF and it was not for the Tribunal to direct that the post of AMM should also be included in such feeder post. The learned Judge also found that even the channels of promotion for the post of ACF and AMM were different and the post of AMM was only of technical nature and could not said to be connected with the forestry and, therefore, the post of AMM was outside the IFS (Recruitment) Rules, 1966 and the IFS (Appointment by Promotion) Regulations, 1966, more particularly Rule 2(g)(ii). The learned Judge also noted that while ACF could be appointed as AMM, the AMM could not, however, be transferred to the post of ACF. The learned Judge clearly found that the post of ACF and the feeder post to the ACF were essentially connected with forestry whereas the post of AMM and the feeder posts thereto could not be said to be connected with forestry. On this ground the learned Judge allowed the writ petitions and set aside the order of the Tribunal. 12. A separate concurring judgment was also delivered by Justice S.B. Sinha (as His Lordship then was). He framed a question: Whether despite coming into force of 1991 Rules could the petitioner claim his promotion to the post of DCF un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal's second judgment passed in Review Application was liable to be set aside. 13. Shri Rao, Senior Advocate, painstakingly took us through the 1963 Rules, the amendments made in 1973 as also IFS (Recruitment) Rules, 1966 and the Regulations made thereunder. Our attention was invited specifically to Rule 2(g)(ii) and Rule 4(1) of the IFS (Recruitment) Rules read with third proviso to Regulation 5(2) and first proviso to Explanation I of IFS (Appointment by Promotion) Regulations, 1966. Rule 2(g)(ii) is as under: 2(g)(ii) Any service in such Central Civil Post: Class I or Class II, connected with forestry, as may be approved by the Central Government for the purposes of these rules. Rule 4 which provides for method of recruitment to the service suggests that the Central Government may recruit to the service any person from amongst the members of the State Forest Service and adjudge suitably in accordance with such Regulations made by the Central Government. It also provides that such member who is covered under Rule 2(g)(ii) shall be allocated only to the cadre of Union Territory. Reference was also made to Regulation 5(2) and first proviso to Explanation I thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes of these Rules. If we give the meaning as is canvassed by the learned counsel, then there would be no necessity of the words as may be approved by the Central Government for the purpose of these Rules . We cannot accept the interpretation. The ruling cited by the learned counsel is in entirely different context. That was the case where the question was as to whether the court could accept in evidence a certified copy of the registered document under Section 51A of the Act. The court simply held that this gave a discretion to the concerned court to accept or not to accept such copies in evidence. In our opinion there is no significance in the present provision, i.e., Rule 2(g)(ii) of the words as may be approved as is suggested by the learned counsel. On the other hand the meaning is clearly discernible that there would have to be approval by the Central Government in favour of any service for being included in the State Forest Service. We, therefore, reject the contention raised by the learned counsel. 14. It was tried to be further suggested that there was no approval of the Central Government to the service of ACFs and, therefore, the requirement of the approval o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of AMM was included in the unamended Rules of 1963, it must be held to be a post connected with forestry and further since the post of AMM which was equivalent to the post of ACF in grade could be a feeder post for the promotion to the post of DCF and as such the post of AMM would be connected with forestry. 16. We are afraid on both the contentions the learned counsel was wrong. Firstly, merely because the post of AMM was included in the unamended Rules of 1963, that by itself would not make it connected with the forestry . In order to be a post connected with the forestry , the test would be the actual duties and powers of the particular post and the qualifications required. In our view merely because the post of AMM was clubbed with the others like CCF, CF, DCF, ACF and was also mentioned in 1963 Rules would not make it a post connected with forestry . In this behalf, High Court has given very good reasons to suggest that the post is not connected with the forestry . It is clear from the facts that an AMM has no duty regarding the forest, he has to merely run and control the further cutting of timber which has been brought to the mill. He does not have even a distant co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct connected with forestry nor was a diploma of Forest Research Institute was required unlike ACF. It would be clear from this that again in 1973 the degree that was required was only in Civil, Mechanical or Chemical Engineering or Masters Degree in Chemistry the subjects which have nothing to do with forest. Further, unlike the ACF qualifications there was no necessity on the part of the AMM to have Biology, Physics or Chemistry as subjects in Higher Secondary or Matriculation or equivalent. This itself suggests that the post of AMM was more technical based than forestry based. 18. Even when we consider the Promotion Rules in 1973, the promotion to the post of ACF was to be from amongst the trained Forest Rangers of Andaman Nicobar Forest Department having seven years experience while for the promotion to the post of AMM, the Assistant Constructional Engineer and the Superintendent, Timber Treatment Plant and Seasoning Kiln with three years experience were entitled who have no concern with forest. This suggests that the post of AMM was of a technical nature while the post of ACF was connected with forestry. 19. This is further apart from the fact that from 1963 till 1973 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post of AMM cannot be held to be equivalent post to the post of ACF and secondly it cannot be held to be connected with forestry . 22. There is no dispute that by now all the posts of DCF are included in the IFS Cadre and there is no post now remaining in the Andaman Nicobar which would still be covered under the 1963 Rules. Therefore, we reject the argument of the learned counsel that if not under the All India Cadre atleast under the 1963 Rules, which according to the learned counsel still survive, the appellant would be entitled to the promotion to the post of DCF. We are in complete agreement with Justice Sinha who has held that because of the subsequent Rules, the 1963 Rules would have to be read as amended to that extent. We were not addressed on that aspect of the judgment of Justice Sinha nor was that part assailed by the learned counsel in his address. 23. Learned counsel for the State specifically drew our attention to the 1991 Rules which came into existence on 25.7.1991. Rule 3 of those Rules specifically provides the constitution of service and its classification. The Rule creates two grades, namely, Time Scale and Selection Grade. It is further provided that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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