State Of Uttarakhand And Others vs Gambhir Das

Ramesh Ranganathan, CJ

Heard Mr. C.S. Rawat, learned Additional Chief Standing Counsel, appearing on behalf of the State of Uttarakhand-Appellants and Mr. Pooran Singh Rawat, learned counsel for the respondent-writ petitioner, and, with their consent, the writ petition is disposed of at the stage of admission.

The present appeal is filed by the respondent in WPSS No.631 of 2018 aggrieved by the order passed by the learned Single Judge on 19.11.2018.

The respondent-writ petitioner invoked the jurisdiction of this Court seeking a writ of certiorari to quash the order dated 10.09.2015 passed by the appellant; and for a writ of mandamus commanding the respondent to appoint the respondent-writ petitioner in the post of Forest Guard pursuant to his application.

It is the respondent-writ petitioner’s case that, by order dated 11.06.2015, an advertisement was issued inviting applications for the post of Forest Guards amongst seasonal daily wagers as per “The U.P. Lower Subordinate Forest Service Rules, 1980” (hereinafter referred as, “the

1980 Rules”); the 1980 Rules were amended from time to time; with a view to participate in the selection for appointment to the post of Forest Guard, the respondent-writ petitioner submitted his application to the Forest Officer, Kalsi Division on 12.08.2015, praying that he may be given an experience certificate so that his candidature can be considered for the post of Forest Guard; the respondent-writ petitioner’s candidature was rejected, by order dated 10.09.2015, on the ground of non-submission of the experience certificate; he had passed High School in the year 2007, and his Intermediate in the year 2009; the respondent-writ petitioner’s candidature was rejected, by order dated 10.09.2015, without issuing an experience certificate to him as a daily wager; the Range Officer, Chauhadpur Range had verified the work of the petitioner from the year 2014; and, consequently, rejection of his candidature is illegal.

On his invoking the jurisdiction of this Court, the learned Single Judge observed, in the Order under Appeal, that the respondent-writ petitioner claimed to be working as a seasonal worker from the year 2012 and was eligible; he was liable to be considered for appointment to the post of Forest Guard, as per the appointment made to the said post, from the amongst seasonal workers from the Forest Department; it was not clear from the records whether the respondent-writ petitioner had worked for the period, as had been claimed by him, since in one season his name is shown as Gambhir Das while in another season it is only shown as Gambhir. The writ petition was disposed of directing the Divisional Forest Officer, Kalsi to consider the candidature of the respondent-writ petitioner, in the next selection, to the post of Forest Guard and, subject to any disciplinary action, not to dispense with the services of the respondent-writ petitioner as a seasonal worker. Aggrieved thereby, the present appeal.

Mr. C.S. Rawat, learned Additional Chief Standing Counsel, would submit that Rule 5(1)(b) of the 1980 Rules, required posts of Forest Guards to be filled-up, to the extent of 65% of the vacancies, from amongst seasonal workers; the 1980 Rules were superseded by the Uttarakhand Subordinate Forest Service Rules, 2016 (hereinafter referred as, “the 2016 Rules”) in terms of which 90% of the vacancies in the posts of Forest Guard is required to be filled-up only by direct recruitment, and 10% of the remaining vacancies by promotion of Class IV employees, who have passed their 10th Class in the Science Stream; and, since the 2016 Rules do not provide a quota for seasonal workers to be appointed as Forest Guards, the learned Single Judge had erred in directing the appellant to consider the respondent-writ petitioner’s case. Learned counsel would further state that the direction to continue the respondent-writ petitioner as a seasonal worker, when he was working only as a daily wager, also necessitates being set aside.

On the other hand, Mr. Pooran Singh Rawat, learned counsel for the respondent-writ petitioner, would submit that the appellants have admitted that the respondent-writ petitioner had worked as a seasonal worker during the year 2012; though the petitioner had worked during the 2012 and 2014 seasons and his name is correctly reflected in the muster roll for the 2012 season, the appellants dispute his having worked in the 2014 season; the respondent-writ petitioner’s name was rightly recorded, during the 2012 season, as Gambhir Das; however, in the 2014 season, his name was wrongly shown as Gambhir only to deprive him to his right to be considered for appointment as a Forest Guard; several other seasonal workers continue to work in the Forest Division; and, in such circumstances, the learned Single Judge was justified in directing the appellants to continue him in case no disciplinary action has been taken against him.

Rule 5 of the 1980 Rules relate to the source of recruitment. Rule 5(b) relates to the post of Guards, and the source of the recruitment for appointments to these posts are (a) 90% of the vacancies by direct recruitment. Under the proviso thereto, out of such 90% vacancies, recruitment shall be so arranged that, as far as possible, 25% of vacancies can be filled by direct recruitment in the open market; and (b) 65% of the vacancies shall be filled from amongst seasonal workers. Rule 5(b)(2) required 10% of the vacancies of Forest Guards to be filled-up by promotion from amongst permanent Class IV (Group D) employees, who have passed their High School Examination in Science or Agriculture Stream. From amongst the 90% quota earmarked for direct recruitment, 65% of the vacancies were required to be filled up by seasonal workers who are defined, in Rule 3(j) of the 1980 Rules, to mean stump Moharrirs, Gate Keepers, Fire Watchers, Tractor Drivers, Cleaners and others, whose wages are distributed on monthly basis through vouchers, and who have worked as such during at least three seasons. Even in terms of the 1980 Rules it is only such workers, who falls within the ambit of Section 3(j) and have worked for three seasons, who are entitled to be classified as seasonal workers and, thereafter, to participate in the selection process for appointment to 65% of the vacancies ear-marked in favour of seasonal workers.

While the respondent-writ petitioner claims that he had worked for three seasons, and fulfills the definition of a seasonal worker under Rule 3(j), the appellants dispute his claim. The fact that the petitioner worked as a seasonal worker in the year 2012 is admitted by the appellants. With respect to the 2014 season, the respondent-writ petitioner’s name is shown as Gambhir, though his actual name is Gambhir Das. The appellants have not been able to show that any other person named Gambhir, apart from the respondent-writ petitioner, had worked in the 2014 season. It is evident, therefore, that, though he was paid daily wages in the name of Gambhir, the person who discharged duties during the 2014 season was the respondent-writ petitioner, and none other. The fact that he has been working continuously from the 2015 season is also admitted by the appellants.

Consequently, the respondent-writ petitioner must be held to have completed working for three seasons at the end of the 2015 season.

As noted hereinabove, the 1980 Rules were superseded by the 2016 Rules which came into force on 27.10.2016. The 65% quota, provided for seasonal workers in the 1980 Rules, has now been deleted in the 2016 Rules and the entire 90% quota is required to be filled up by direct recruitment of Forest Guards selected and appointed on completion of their training. The academic qualifications prescribed under Rule 8, of Part IV of the 2016 Rules, is that the candidate should have passed Intermediate in the Agriculture or Science Stream. The 2016 Rules were amended by the notification dated 17.04.2018 and, in terms thereof, appointment to 10% posts, reserved for Group IV employees, was to be made from those who had passed the Intermediate examination. The requirement of having completed the Intermediate course only in the Agriculture or Science Stream was deleted. The

2018 Rules further provide that, in case of non-availability of employees, the said vacancies should be filled-up by direct recruitment. While it is true that the respondent-writ petitioner was ineligible to be appointed, or to be considered for appointment, as a Forest Guard in terms of the 2016 Rules, he fulfilled the prescribed qualifications under the 1980 Rules to be considered for appointment to the post of Forest Guard after the end of the 2015 season, since he had worked for three seasons by then.

As noted hereinabove, the 2016 Rules came into force on 27.02.2016 and, for vacancies which arose thereafter, the respondent-writ petitioner would, undoubtedly, be ineligible. However, with respect to vacancies which arose during the period from the end of the 2015 season till 27.10.2016 (when the 2016 Rules came into force), the respondent-writ petitioner was eligible to be considered for appointment as Forest Guard in any of the vacancies which arose during the said period.

Suffice it, in such circumstances, to modify the order under appeal and, instead, direct the respondents to consider the case of the respondent-writ petitioner, a seasonal worker, for appointment to the post of Forest Guard in vacancies, earmarked in favour of seasonal workers, which arose after the end of the 2015 season, (when the respondent-writ petitioner competed three years service), till 27.10.2016 when the 2016 Rules came into force.

In so far as the directions issued by the learned Single Judge that the petitioner be continued in service as a seasonal worker, subject to any disciplinary action being taken against him, is concerned, suffice it to modify the said directions and, instead, direct the respondents to continue the respondent-writ petitioner in service as a seasonal worker, in case the appellants have engaged the services of other employees, either as daily wagers or as seasonal workers, in Kalsi Soil Conservation Forest Division.

With the aforesaid modification and directions, the Special Appeal stands disposed of. No costs.