Gadhavi Aala Nagshi vs State Of Gujarat

Biren Vaishnav, J

1 Rule returnable forthwith. Mr.Utkarsh Sharma, learned Assistant Government Pleader, waives service of notice of Rule on behalf of State respondents Nos. 1,2 & 3. Mr.Ninad Shah, learned advocate, waives service of notice of rule on behalf of private respondents in Special Civil Application No. 10918 of 2022.

2 By way of these petitions under Article 226 of the Constitution of India, the petitioners, who are working as Forestors in the Junagadh and Gandhinagar Zones have approached this Court challenging the communications dated 16.5.2022 and 7.6.2022. By the impugned communications, the State has decided to forego the practice of foregoing Zonal Seniority Gradation Lists and preparing State Wise seniority list for Forestor Guards.

3 Facts in brief are as under:-

3.1 It is the case of the petitioners that they are duly selected and appointed as Forest Guards, Class-III, in their respective zones falling within the Junagadh zone and the Gandhinagar zone.

3.2 The case of the petitioners is that they are placed in the Final Gradation List as far as Junagadh is concerned and the said list has been operated for the purposes of promotion to the post of Forestors and the petitioners were awaiting their orders of promotion which were issued to the earlier selectees on 7.7.2021 and 8.7.2021.

3.3 It is the case of the petitioners that the letters dated 12.06.2020 indicate that the Forest Guards who have been transferred on their own request from one Division to other Division shall have to face loss of seniority. Even in the case of those who have not passed the CCC Examination within two years from the date of their regular appointments will face loss of seniority.

3.4 On a representation made by the Association of the Forest Guards at Valsad-Navsari requesting that the cadre of Forest Guards should be made a State Level Cadre the impugned orders have been passed.

4 Mr.K.B.Pujara, learned advocate for the petitioners, would submit that as per the Recruitment Rules of the Cadre of Forest Guards and as per the Gujarat Forest Manual, the appointing authority of this cadre is the Divisional Forest Officer and the Zone Level Gradation list is prepared only for the purpose of promotion from Forest Guard to Forestor by integrating the Seniority Lists of Divisions included in the concerned zone. Moreover, the promotions are given from the cadre of Forest Guard to the cadre of Forestors considering the posts available in each Zone.

4.1 Mr Pujara, learned advocate, would submit that the Gujarat Forest Manual distributes the entire State into Four Zones; Junagadh, Surat, Gandhinagar and Vadodara and the respondents have decided to maintain a common gradation list of Forest Guards for each of the four zones as is evident from the letter dated 3.2.1983.The practice has been in vogue for 40 years now to give promotions from Forest Guards to Foresters in each Zone.

4.2 Mr Pujara, learned advocate, would submit that vide letter dated 9.2.2022, information was sought regarding vacant posts of Foresters and approval was sought to give promotions in the four Zones. The petitioners are already in the Select List and are waiting for their promotion orders. By the impugned Circular dated 16.5.2022, the respondent no.2, has taken a “U” Turn and has decided to abandon the Zonal Gradation List prepared for promotion of Forest Guards to Foresters and decided to prepare a State Level Gradation List.

He would submit that this exercise is wholly arbitrary and violates the principles of natural justice and also that it is violative of Articles 14,16 and 21 of the Constitution of India.

4.3 Adding to his submissions, Mr Pujara, learned advocate, would submit that these communications are contrary to the letter and spirit of the Gujarat Forest Manual which clearly provides that the State shall be divided into four Zones. He would rely on the provisions of the manual to submit that the manual provides that the seniority in the Divisional Cadre of the Guards will be division-wise. Even the recruitment is made division-wise. He would rely on the Forest Guard, Class-III,Competitive Examination for Direct Recruitment Rules, 2016 made under Article 309 of the Constitution Of India and submit that Rule 6 provides for district-wise requisition and Rules 19-22 and Rule 26 provide for preparation of district-wise select list and merit list. He would submit that it is therefore obvious that the seniority list of Forest Guards is maintained at District Level and there is no question of preparing any State Level Seniority List.

4.4 Mr Pujara, learned advocate, would rely upon the following decisions:

(I) In the case of Y.V.Rangaiah vs. J. Sreenivasa Rao., reported in AIR 1983 SC 852.

(ii) In the case of Nirmal Chandra Bhattacharjee vs. Union of India., reported in

(iii) In the case of B.L.Gupta vs. M.C.D, reported in 1998 (9) SCC 223.

(iv) In the case of Mohd. Raisul Islam vs. Gokul Mohan Hazarika., reported in 2010 (7) SCC 560.

(v) In the case of State of U.P vs. Mahesh Narain., reported in 2013 (4) SCC 169.

(vi) In the case of Kulwant Singh vs. Daya Ram., reported in 2015 (3) SCC 177.

(vii) In the case of Dr.Aswathy R.S.Karthika vs. Dr.Archana M. reported in 2020 (8) SCC 98.

5 Mr.Utkarsh Sharma, learned AGP appearing for the State has made the following submissions:

5.1 He would submit that what was found in operating the Seniority List Zone-wise was that it was creating heart burning amongst some colleagues of a different zone. He would submit that for instance, in the Junagadh Forest Division the batch of the year 2013 has been promoted whereas in Surat the batch of the year 1999 has still not been promoted as Foresters.

5.2 He would submit that due to the existing system not all the available seats get filled in some zones even though there may be eligible candidates in some other zones. For instance in the Junagadh Zone, at the time of promotion, around 33 seats could not be filled in as there were no eligible candidates in the Junagadh Zone. The existing system was not only causing injustice to the Forest Guards of the Surat Zone but also creating a situation where the department was not able to fill up all the posts. Treating the entire State as one zone provides equal opportunity to all the eligible guards and their seniority alone is the criteria for consideration of promotion and hence is fairer than the earlier regime.

5.3 Mr.Sharma, learned AGP, would submit that now since the recruitment of Forest Guards is being done by a common examination at the State Level, the same consideration would weigh for making a common seniority list. He would submit that as far as transfer on request is concerned and the loss of seniority is an issue which has been addressed, the general circular of the government employees for loss of seniority is not applicable as there is no legally defined cadre of Forest Guards. The provision that the Forest Guard will be in the zonal cadre has been removed and as a result of this handicap the case in Special Civil Application No.16299 of 2018 could not be defended.

5.4 Mr.Sharma, learned AGP, would submit that no injustice has been caused to the petitioners, inasmuch as, neither their service conditions are changed nor are the Junior Guards being promoted over the petitioners. Mr.Sharma, learned AGP, would further submit that as far as the objection to the seniority in the case of CCC Examinees is concerned, the Notification dated 16.5.2022 does not change the re-determination of seniority of the guards getting affected due to late passing of the CCC Examinations. The petitioners have a right to get timely promotion as others.

5.5 Mr.Sharma, learned AGP, would submit that to increase the promotional posts and avenues, a proposal has already been sent to stop direct recruitment in the Forester cadre and instead fill all the posts by promotion.

6 Mr.Shalin Mehta, learned Senior Advocate, has appeared with Mr.Ninad Shah, learned advocate for the private respondents and would submit that nowhere do the Recruitment Rules, especially the Rules of 2004 and 2016 contemplate that the cadre of Foresters has to be a District-wise cadre.

6.1 Mr.Shalin Mehta, learned Senior Counsel, would submit that the exercise of making the cadre a State-wise cadre on the contrary is in light of the equality principle, inasmuch as, it will give all Foresters throughout the State, an equal opportunity of promotion and such promotions would not be on fortuitous basis as on the availability of vacancies in the respective Zones. No illegality can be said to have been committed by the State in passing the impugned Notification.

7 Having considered the submissions made by the learned advocates for the respective parties, the language of the Notification dated 16.5.2022 reflects the intent of bringing out a change in the policy of making the seniority of the Foresters State wise from the earlier it being Zone-wise.

7.1 Reading the notification indicates that as a result of lack of opportunities of promotion to the post of foresters from the post of Forest Guards and with a view to see that such promotional avenues are equally available, it has been decided to change the practice of zone wise seniority of Forest Guards to make it State level. What has been also found on reading the notification is that the purpose of issue in the communication dated 03.2.1983 was to see that opportunities of promotion are available to Forest Guards. That purpose now having been accomplished, it has been decided to reframe the policy and make the seniority of Forest Guards a state level seniority with a purpose to bring in uniformity and accordingly the Notification dated 16.5.2022 was issued.

7.2 As far as the objection of the learned counsel for the petitioners on the aspect of alteration of the principle of seniority of candidates who fail in the CCC examination is concerned, affidavit- in-reply takes care of the grievance of the petitioners. The affidavit-in-reply clearly states that the Notification dated 16.05.2022 does not change any rule regarding the determination of the seniority of the Guards getting affected due to late passing of CCC examinations. Affidavit-in-reply states that the seniority will be continued to be determined as per the existing rules.

7.3 The challenge to the Notification dated 16.05.2022 and to the subsequent communication dated 07.06.2022 on the ground that a policy practice prevailing since 1983 is sought to be disturbed as the petitioners were about to be promoted but for the change in policy is misconceived. Sufficient material has been brought on record by way of affidavit-in-reply to suggest that if promotions to the post of foresters was to be given on the basis of zonal seniority, there was an inherent discrimination, inasmuch as, in some districts if there are lower number of vacancies, a forester appointed much earlier than his colleagues in the other zone would be deprived of promotion because more vacancies are available in a particular zone. Resultantly, the Junior Forest Guard would steal a march over the colleague in the other zone.

7.4 The affidavit-in-reply demonstrates the case where a Forest Guard of 2013 has secured promotion in his division whereas a Forest Guard appointed in Surat in the year 1999 has not had the benefit of being promoted to the post of Forester because of lack of vacancies. The submission canvassed by the learned advocate on behalf of the petitioners based on the percentage of vacancies in each zone being almost similar, I will also not take the case of the petitioner any further. The state has the sole repository to frame policies or amend them keeping in view the foremost principle that such policy is in furtherance of promotion of the principles Article 14 and 16 of the Constitution of India.

7.5 Reading the Resolution dated 16.05.2022 together with the affidavit makes it abundantly clear that the State in its attempt to bring in uniformity in the matter of promotions to the post of Forester, has thought it fit to depart from the old rule of zonal wise seniority to maintaining State wise seniority.

7.6 The decision relied upon by the learned counsel for the petitioners in respect of restructuring of Quotas and also on the question whether it is justifiable to change the process of selection once the same has been started on the basis of unamended rules, the Gujarat Forest Manual which has been extensively relied upon, cannot be pressed into service to defend a practice which has been prevalent and merely because it has been so prevalent for over 40 years, cannot make it legal.

7.7 The decision of the Hon’ble Supreme Court in the case of Wing Commander J. Kumar vs. Union of India & Ors, reported in AIR 1982 Supreme Court 1064, provides that service conditions pertaining to seniority are liable to alteration by subsequent change as that may be introduced in the rules and except to the extent of protecting promotions that have already been earned under the previous rules. The revised rules will operate to govern seniority and future promotion prospects.

7.8 In the case of Ramachandra Shankar Deodhar and Ors vs State Of Maharashtra, reported in AIR 1974 SC 259, it has been held that a rule which mainly affects chances of promotion cannot be regarded as varying a condition of service. In the facts on hand, what is evident is that the State has in its wisdom decided to change the principle of reframing the Seniority List and make it State-wise rather than zonal-wise so as to give equal chances of promotion to all Forest Guards for higher posts. It has also come on record that a proposal has been sent to the state to do away with direct recruitment in the cadre of Foresters which will give more opportunities and avenues of promotion to the cadre of Forest Guards and therefore, the apprehension of the petitioners that such change in the principle of making the list state wise would hamper their chances of promotion is misconceived.

8 For the aforesaid reasons, the petitions are dismissed with no order as to costs. Interim relief, if any, stands vacated. Rule is discharged.

(BIREN VAISHNAV, J)

FURTHER ORDER

After pronouncement of judgement, Mr.Pujara, learned counsel for the petitioners, requests for stay of the judgement. Request for stay is rejected.