Santosh Kumar Samant Rao vs State of Chhattisgarh and Others

Navin Sinha, Acting C.J—The present appeal arises from the order dated 3.12.2014 in Writ Petition (S) No. 188 of 2014 and analogous case. The Learned single Judge held that the circular issued by the State of Madhya Pradesh under Madhya Pradesh Class III (Non-Ministerial) Forest Service Recruitment Rules, 1967 (hereinafter referred to as ''the Rules'') was formally revoked by the State of Chhattisgarh after reorganization of the State only on 11.6.2012. The private Respondent having been sent for training as Forester prior to that date under the Circular for having stood first in the training of Forest Guards, the challenge by the Appellant on the ground the Circular stood revoked on 14.5.2009 itself was unsustainable. Learned Counsel for the Appellant submitted that the letter dated 14.5.2009 issued by the Secretary, Department of Forest, Government of Chhattisgarh made it explicit that the practice for out of turn promotion from Forest Guard to Forester provided for in Circular dated 17.10.1977 to those who stood first in training as Forest Guard had been decided to be done away with and replaced by a scheme for two additional increments to the first candidate and one additional increment to the second candidate. The Learned single Judge misconstrued the order as a proposal only to the Principle Chief Conservator of Forests. The latter had no discretion in the matter. It was submitted that in the Government policy decisions are taken at the higher levels and implemented through the subordinates. Pursuant to the order dated 14.5.2009, the Principal Chief Conservator of Forest wrote to the Chief Conservator of Forest on 14.12.2009 that a decision had been taken by the Forest Department of the State Government to grant increment only to candidates at the first and second position in the training of Forest Guards. Therefore, those Forest Guards who stood first in the training need not be sent for training for out of turn promotion as Foresters. No further material is required to demonstrate that the decision had been taken and not that it was in the process of being taken.

The Under Secretary in the Forest Department of the State Government could not have recalled the order of the Secretary, Department of Forest, dated 14.5.2009 in the garb of a writ petition preferred by the private Respondent in which no positive direction had been issued but liberty had been granted to represent only. He next submits that in any event, the order dated 25.4.2012 of the Under Secretary does not make even any reference much less recall the order dated 14.5.2009. Without prejudice to the same, he submits that under the Rules, if a procedure for promotion was provided, no executive instructions could have been issued there under by way of circular dated 17.10.1977.

Learned Senior Counsel for the private Respondents contended that the order dated 14.5.2009 was not a decision. It was merely a proposal of the Department sent by the Secretary, Forests, to the Principal Chief Conservator of Forest to put up in the file properly for a final decision. That final decision has been taken only on 11.6.2012. Even the proposal which originated on 14.5.2009 was kept in abeyance by the Under Secretary by his order dated 25.4.2012. No illegality was therefore committed in sending the private respondent for training because he had stood first in the training of Forest Guard for out of turn promotion and training as Forester under the Circular dated 17.10.1977 before its recall on 11.6.2012.

It was next submitted that the proposal dated 14.5.2009 itself had originated under pressure from the Union which had threatened to go on strike which is evidence that the matter was under consideration of the State Government and culminated in a final decision only on 11.6.2012. Reliance was placed on Rule 6, sub-rule (4) of the Rules to contend that the Circular was not in violation of the Rules as the Government could adopt such methods also apart from those specified in sub-rule as it may, by orders issued in this behalf. The Circular dated 17.10.1977 therefore had statutory force and had been issued under the orders of the Governor.

Learned Counsel for the State submitted that the order dated 14.5.2009 was not any final order but only a proposal which culminated in a decision on 11.6.2012. No infirmity has been committed if this Court had directed consideration of the claim of the private respondent after which he was sent for training.

We have considered the submissions on behalf of the parties. It is not considered necessary to decide the issue for validity of the Circular dated 17.10.1977 as we are of the considered opinion that the issue can be disposed on other grounds with finality.

The counter-affidavit filed by the State unfortunately is very cryptic concealing more than it reveals. There is no pleading with regard to the background in which the order dated 14.5.2009 was issued and it maintains complete silence on that aspect. On the contrary it states that a proposal was called from the Principal Chief Conservator of Forest by the State Government informing him that the Government has taken a decision in the matter. In our opinion, the counter-affidavit is completely ambiguous reflecting a complete confusion in the thinking process of the Respondent State authorities. Alternately a concerted effort has been made to favour the private respondent in the garb of a Court order which had only directed to consider his representation if filed.

Either the Forest Department of the State Government had taken a decision or it was seeking a proposal from the Principal Chief Conservator of Forest. The State Government could not have taken a decision and then called for a proposal from a subordinate. The pleadings in paragraph 8 of the counter-affidavit, read reasonably, leads to the only conclusion that the Government had taken a decision to do away with the old scheme under the Circular. In the hierarchy of the Government decisions are taken at the top levels and then implemented through subordinates and not vice-versa.

The letter dated 14.5.2009, mentions the subject-matter as the 21 point demand of the Chhattisgarh Forest Workers Union, Raipur for which they propose to go on strike from 18.5.2009. The present issue was item No. 13 out of the 21 point proposal. The contents of the letter are short and the language is clear. In no uncertain terms it states that the State Government has taken a decision to grant two and one additional increments to the first and second candidates respectively, who attained that position in the training as Forest Guard and to end the earlier scheme, which obviously was with reference to the Circular dated 17-10-1977. It was signed by the Secretary to the State Government in the Department of Forest. The Principal Chief Conservator of Forest was required only to implement the same.

A Government order has to be first read according to its plain language as it would be understood by the common man. We have already held that there was no ambiguity in the language. The Principal Chief Conservator of Forest on 14.12.2009 correctly understood the decision of the State Government and wrote to the Chief Conservator of Forest to forthwith stop the earlier practice.

Respondent No. 5 having completed his training as Forest Guard in 2010 filed Writ Petition (S) No. 45 of 2012 on 4.1.2012 contending that he had stood first in the training of Forest Guard and under the Circular of 1977, he was to be sent for Forester Training without competing in the recruitment test as no final decision had been taken to do away with the Circular till date. The learned single Judge held that these were matters in the realm of policy decision of the State Government. Liberty was only granted to the respondent to represent before the Principal Chief Conservator of Forest who would take a final decision in the matter.

Pursuant to the order on the writ petition filed by Respondent No. 5, passed on 11.1.2012, the Under Secretary in the Department of Forest on 25.4.2012, wrote to the Principal Chief Conservator of Forest that the proposal for changing the rules had been sent for legal opinion and till then the old procedure was to be followed. Significantly, the Under Secretary was subordinate in rank to the Secretary who issued the original order dated 14.5.2009. The order dated 25.4.2012 of the Under Secretary does not even refer to the earlier order of the Secretary dated 14.5.2009, much less recall it or keep it in abeyance. We have no hesitation in holding that the Under Secretary did not act bona fide in taking shelter behind the order of the Court passed in Writ Petition (S) No. 45 of 2012 to re-open the matter which stood closed making a surreptitious reference to the time limit fixed by the Court for decision and which finds its reflection in the subsequent letter dated 22.1.2013 of the Under Secretary that if the Respondent No. 5 was not sent for training, it would invite the wrath of the Court in contempt jurisdiction, seeking to create a phobia of a contempt proceeding without any basis or foundation.

The State Respondent did not act fairly, reasonably and responsibly in the matter. A decision had already been taken at the highest level of the Government on 14.5.2009. It was understood in clear terms by the Principal Chief Conservator of Forest who issued consequential orders on 14.12.2009. The Under Secretary then issued an order at variance. There is no pleading in the counter-affidavit of the State that the Secretary had allowed his own order dated 14.5.2009 to be recalled much less did the order of the Under Secretary make any reference to the order of the Secretary. An advantage was taken of the order of the Court in Writ Petition (S) 45 of 2012 filed by the private Respondent to create an aura of fear that the wrath of the Court would be invited in contempt jurisdiction rather than to have decided the representation in accordance with law. The respondent authorities in the counter-affidavit virtually challenge their own order dated 14.5.2009 which is clearly impermissible in the law. The Sub-Divisional Forest Officer who has sworn the counter-affidavit virtually challenges the order of the Secretary, Department of Forests of the State Government dated 14.5.2009 which is impermissible as held in Assistant Commissioner of Commercial Taxes (Asst.) Dharwar and Others Vs. Dharmendra Trading Company and Others, AIR 1988 SC 1247 : (1988) 172 ITR 395 : (1988) 2 JT 606 : (1988) 1 SCALE 973 : (1988) 3 SCC 570 : (1988) 3 SCR 946 : (1988) 70 STC 59 observing as follows:

"5....We totally fail to see how an Assistant Commissioner or Deputy Commissioner of Sales Tax who are functionaries of a State can say that a concession granted by the State itself was beyond the powers of the State or how the State can say so either....."

The standards by which the Government will act has to be very different from the manner in which a private authority or individual will act. The order dated 14.5.2009 did not emanate in the void. It was the result of a proper thought process in view of certain demands raised by the Forest Workers Union who had threatened to go on strike. We were informed at the bar during hearing by the parties that eventually the strike was called off because of the assurances given by the Government.

It is apparent that this decision was taken after consultation with the Union or the Government suo motu took the decision to avoid the possibility of any strike. The counter-affidavit confronts the Court with a conclusion rather than informing that whether any negotiations were held with the Union or not. Under what circumstances the decision dated 14.5.2009 was taken. The question that arises for our consideration is that if the State Government in the Department of Forest at the highest level gave assurance to its employees because of which they called off their strike, was it only a guise by the officials of the State to fraudulently have the strike called off without any intention to implement their decision and assurance given. If that was so, it was a fraud on the Constitution, impermissible under Article 14 of the Constitution. Conversely, if the State took a conscious decision to do away with the circular dated 17.10.1977 in view of the strike call given by the Union and thereby prevented the strike, the State certainly stood to gain an advantage and is bound to stick by its promise. The authorities of the State Government cannot vacillate in decision making according to their convenience seeking shoulders of the Court when in fact, the Court never gave them its shoulder. We do not approve of the conduct of the State authorities in reading more into the order in Writ Petition (S) No. 45 of 2012 than it actually contained.

In State of Bihar and Another Vs. Sunny Prakash and Others, (2013) 2 AD 438 : (2013) 1 JT 608 : (2013) 1 SCALE 451 : (2013) 3 SCC 561 : (2013) 3 SCC 559 : (2013) 2 SCC(L&S) 567 : (2013) 1 SCT 738 : (2013) 2 SLJ 150 : (2013) AIRSCW 766 the challenge was to the direction of the High Court in a Public Interest Litigation to ensure that the commitment given by the State Government to the Bihar State University and College Employees Federation is honoured and implemented. The strike was called off following an agreement after the State Government issued a letter for implementation of the agreement. Later the State Government sought to resile that it was not a decision taken according to Rules of Executive business. It was held as follows:

"22. Inasmuch as all the persons who were competent to represent were the parties to the said agreement referred to above and after making such commitment by the State Government, as rightly observed by the High Court, we are also of the view that the same has to be honoured without any exception. By the impugned order, the High Court has not only directed the State Government to implement the commitment given by it having been reduced into writing on 18-7-2007, honoured by the State Government itself in subsequent letters/correspondences but also directed the Federation to call off the strike immediately in the interest of the student community."

We are, therefore, unable to sustain the order under appeal. The order in appeal dated 3.12.2014 and the consequential orders dated 22.1.2013 and 1.2.2013 by the authorities are set aside. The appeal is allowed.