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Judgment
Mohammad Yaqoob Mir, CJ
Instant appeal is directed against the judgment dated 23.05.2016 passed by the learned Single Judge while disposing of WP (C) No.408 of 2014, the respondent authorities (appellants) have been directed to consider the case of the writ petitioner for being accommodated as Forest Guard within a month.
Precise factual flashback will be advantageous for effectual adjudication of the issues raised.
Respondent admittedly has been appointed as Chowkidar in the appellants‟ department in the year 1990.
Vide Order dated 02.09.1996, the respondent has been allowed to officiate temporarily as Forest Guard w.e.f. 31.08.1996 in the scale pay of Rs.900-15-975-EB-20-1115-26-1375/- P.M. and posted at Jowai Beat with a condition that on joining of Shri Comby Shylla his officiating appointment will cease.
Vide Order No.15 dated 11.05.2007 in pursuance to the Office Memorandum No.F/PR/137/89/1/B(S) dated 19.10.1989 of the Finance department respondent having been found fulfilling the criteria has been allowed to draw extended scale after completion of 15 years continuous service in the same post.
Again vide office Order No.27 dated 10.07.2008 respondent subject to reversion has been allowed to officiate as Forest Guard vice Shri C. Shylla who was promoted as Forester-II.
Vide Order dated 07.05.2012 issued by the Divisional Forest Officer respondent was released to join Divisional Forest Officer, Training Division to undergo 18th Batch Training course for the year 2012-2013 at Forest Guard Training School, Darugiri which he has successfully completed as it is supported by the Certificate issued by the Conservator of Forest Research and Training Meghalaya, Shillong dated 03.05.2013.
Vide office Order No.101 dated 05.12.2013 in pursuance to the Government letter dated 01.10.2013 and letter of the Conservator of Forests, Social Forestry & Environment, Meghalaya, Shillong dated 11.11.2013 in favour of the respondent revised scale of 2007 @Rs.8250/- w.e.f. 01.01.2007 with date of next increment as 01.01.2008 has been approved.
Vide Order No.78 dated 22.08.2014 amongst others in favour of the respondent increment has also been released.
Vide communication dated 12.11.2014 sent to the Chief Conservator of Forests, Social Forestry & Environment, Meghalaya, Shillong the Additional Principal Conservator of Forests (Admn.) Meghalaya, Shillong while considering regularization case of the respondent has conveyed that the respondent cannot be regularized against the post of Forest Guard as he had been recommended by the District Selection Committee for appointment to the post of Chowkidar. Furthermore, there are no provisions for promotion from the post of Chowkidar to the post of Forest Guard therefore he has to be reverted back to the post of Chowkidar. Officiating arrangement shall be treated as a local temporary arrangement only which should be discontinued immediately.
Divisional Forest Officer, Social Forestry Division, Jaintia Hills, Jowai vide office Order No.94 dated 26.11.2014 in compliance to the order of Chief Conservator of Forests, Social Forestry & Environment, Meghalaya, Shillong and Additional PCCF, Meghalaya, Shillong has discontinued the arrangement of the respondent as Forest Guard and reverted back to the post of Chowkidar with immediate effect in the pay scale of Rs.6500-160-7620-EB-210-9510-290-12700/- P.M.
Vide office Order No.95 issued by the Divisional Forest Officer, Social Forestry Division, Jaintia Hills, Jowai dated 28.11.2014 on reversion of the respondent has been transferred and posted in the existing vacant post of Chowkidar at Amlarem Range under Social Forestry, Jowai. Aggrieved by the action of the respondents providing for reversion writ petitioner filed the writ petition.
Learned writ court after referring to the annexures as well as Schedule to serial No.4 of the Meghalaya Forest Subordinate Service Rules, 2007 (for short Rules of 2007) that there is no reason as to why the petitioner cannot be considered for the post of Forest Guard.
It is the contention of learned counsel for the appellants that as per the Rules of 2007 there is no scope for promoting Chowkidar to the post of Forest Guard. According to him, the respondent‟s service is governed by the Meghalaya Ministerial District Establishment Service Rules, 2017 (for short Rules of 2017). As per Schedule-I to the said Rules of 2017, Group D‟ posts which include Chowkidar/Cleaner/Cook/Dak Runner/Handyman/Peon next promotion is Lower Division Assistant.
The question which emerges for consideration is as to whether the services of the respondent shall be governed by the Rules of 2017 or by the Rules of 2007.
Admittedly the respondent is on the establishment of Forest department therefore his services are to be governed by the Rules of 2007. That apart, Rules of 2017 have been notified on 04.09.2017 even if would be applicable but will not govern the services of the respondent who has been appointed in the year 1990. The contention of learned counsel for the appellants that serial No.4 of Schedule-II appended to the Rules of 2007 provides method for promotion to the post of Forester Grade-II same has been made applicable to the respondent. This submission has substance because it appears that serial No.4 of Schedule-II is not applicable instead serial Nos.5 and 6 of Schedule-II is applicable same are reproduced hereunder:-
"5.
Forest Guard
(i) By Direct recruitment on the Result of the competitive examination conducted by the Dist. Selection CommitteeRef: Rule 7 (5)(i) (ii) By promotion Ref: Rule7(5)(ii)
(i) Must have passed Class VIII (ii) Physical fitness standard are same as prescribed for Forest Ranger under Sl.No.1 They must have the physical fitness standards as prescribed for other executive staff
Mali, Boatman, Gateman, Animal Keeper, Game Watcher
(i) Must have passed VI (ii) Must have rendered not less than 5 (five) years of continuous service in Group D‟ posts on the first day of the year in which the selection is made.
6.
Mali, Boatman, Gateman, Animal Keeper, Game Watcher
(i) By direct recruitment or the result of competitive Examination conducted by the DSC-Ref: Rule 7(6)(i) (ii) From amongst RCWs-Ref: Rule 7(6)(ii)
(i) Must have passed Class VI (ii) Must have Physical fitness standards prescribed for other executive staff
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As per Govt. OM No. PER (AR)36/95/70 dt.16th Sept. 1996"
Serial No.6 as it is clear pertains to Mali, Boatman, Gateman, Animal Keeper and Game Watcher for them next promotion is Forest Guard. Contention of learned counsel for the appellants is that the respondent has been appointed as Chowkidar so he does not fall within the category of posts as referred to above in serial No.6. Nomenclature for the post has to be interpreted in the manner so as to advance its object. Every case has its own peculiar facts and features and in the same background object has to be advanced. The position of Chowkidar cannot be taken differently to what is nomenclature of such type of post as given in serial No.6. If the submission otherwise is accepted that would mean the respondent shall have no chance of promotion anywhere. After all he has been serving the department for last more than 18 years can he still be deprived of promotion to the post of Forest Guard that too when his performance is acceptable. He had been allowed to officiate as Forest Guard as against the post held by Shri C. Shylla who had proceeded on medical leave and after his promotion post became vacant respondent was allowed to officiate against the said post. Not only that his scale of pay has been fixed and increment has been released. Then he has been sent for training required for Forest Guard as referred to hereinabove, means he has been working as Chowkidar thereafter officiated as Forest Guard for a long time drawing salary of the post had undergone training and also possess certificate so is eligible for the post of Forest Guard can he still be denied the right of promotion to the post of Forest Guard on the ground that he does not fall within the nomenclature of post enumerated in serial No.6 of Schedule-II of the Rules of 2007.
In the stated facts and circumstances keeping in view the position of the respondent having been serving the department from 1990 in our considered view learned Single Judge has appreciated the position of the respondent as well as the rules in its right perspective except for misquoting serial No.4 of Schedule-II of the Rules of 2007 in the order instead of quoting serial Nos.5 and 6 as quoted hereinabove.
In the upshot we are not persuaded to interfere with the judgment impugned except for modification to the extent that in para 5 of the judgment position of serial No.4 of Schedule-II be read as it is at serial Nos.5 and 6 of Schedule-II.
Appeal is accordingly dismissed.