Holding

A temporary or stop‑gap appointment does not amount to an appointment to the service and therefore cannot confer seniority over directly recruited officers.

Summary

The appellants, former Rangers promoted temporarily as Assistant Conservators of Forests under Rule 9(a)(i), claimed seniority over directly recruited Assistant Conservators appointed after 1 May 1978. The High Court dismissed the claim, holding that temporary or stop‑gap appointments do not constitute an appointment to the service and therefore cannot confer seniority. On appeal, the Supreme Court examined the Kerala Forest Service Special Rules, the Kerala State and Subordinate Service Rules, 1958, and relevant case law. It affirmed that seniority of direct recruits is determined by the date of their appointment as probationary Assistant Conservators and that temporary promotions cannot create a preferential claim. The Court also noted that the appellants' appointments were in excess of the quota for promotees and could not prejudice the rights of direct recruits. Consequently, the appeals were dismissed.

Issues considered

Whether a temporary or stop‑gap appointment under Rule 9(a)(i) confers seniority over directly recruited officers.
Whether regularisation of such temporary appointments can give seniority over direct recruits.
Whether appointments in excess of the quota for promotees prejudice the seniority rights of direct recruits.
Interpretation of Kerala Forest Service Special Rules, particularly Rules 2, 8, 9, 27 and 31, regarding seniority and temporary appointments.

Subjects

senioritytemporary appointmentstop‑gap appointmentpromotiondirect recruitmentrecruitment by transferKerala Forest ServicequotapromoteeprobationRule 9Rule 2Rule 8Rule 27Rule 31

Judgment

A C.K. ANTONY
v.
B. MURALEEDHARAN AND ORS.

SEPTEMBER 1, 1998

B (S. SAGHIR AHMAD, K. VENKATASWAMI AND
S. RAJENDRA BABU, JJ.]

S e1Vice Law :

C Kera/a Forest Se1vice Special Rule~; 1966: Rules 2(a) and 8.

Se11i01ity-Assistant Conse1vator of Forests--Promotees and Direct
recmits-lnter-se detemzination of-Stopgap appointment-Rangers were ap-
pointed as Assistant Conse1vator of Forests temp01wily as a stopgap anw1-
gement-Howeve1; their appointments were regularised before appointment of
D direct recmits who were then undergoing training-Held : Such appointment
did not entitle seniority to the Rangers in the State Forest Se1vice--Hence, the
said Rangers could no( claim seni01ity over tile direct recmits even though
they were appointed earlier than the di1:ect recmits-Direct recmits who were
undergoing training were available for appointment anc~ therefore, appoint-
E ment by transfer is not pe1111issible--Kerala State Subordinate Se1vice Rules
1958, Rr. 2, 20, 24, 27 and 31-Kerala Ser\Jice Rule.1-R. 18.

Senio1ity-Promotees and Direct recruit~-Inter-se determination
of-Promotion in excess of quota-Held, cannot prejudice rights of direct
F recmits.

Appointment-Nature of-Held, person appointed to a se1vice or post
tempormily or provisionally as a stopgap mrangement cannot be considered
as one who has been appointed to that se1vice or post.

G The appellants who were Rangers of Kerala Forest Subordinate
Service were promoted as Assistant Conservators of Forests before
1.5.1978. The services of Assistant Conservators Forests were governed
under Kerala Forest Service. The appellants filed a writ petition before the
High Court claiming that the appellants should be treated as senior to the
H direct recruits- respondents who were appointed as Assistant Conser-
280 •
C.K. ANTONY v. B. MURALEEDHARAN 281

vators of Forests on or after 1.5.1978. A
The High Court dismissed the petition on the grounds that the
appellants' initial appointment was by way of temporary stopgap arrange-
ment, that in a sample appointment order in respect of one of the appel-
lants it was clearly mentioned that the promotion was provisional under
Rule 9(a)(i) of the Kerala State and Subordinate Service Rules, 1958; and B
that the appellants while officiating as Assistant Conservators of Forests
were given promotion as Senior Grade Rangers w.e.f. 1.7.1978. Hence this
appeal.

On behalf of the appellants it was contended that the appellants were
appointed long prior to the appointments of the respondents and, there-
c
fore, the appellants must be given seniority over and above the respon-
dents; 'and that though the appointments of the appellants were temporary,
the Government had regularised those appointments prior to the appoint-
ments of the respondents and, therefore, they were entitled to claim
seniority over the respondents. D

Dismissing the appeals, this Court

HELD : 1.1. It emerges from the Kerala Forest Service Special
Rules, the Kerala State and Subordinate ~ervice Rule, 1958 and the Kerala
Service Rules that a person who has been appointed to a service or post E
temporarily or provisionally as a stopgap arrangement, can never be
considered as one, who has been appointed to that post or service. If there
is no sub.stantive vacancy in the permanent cadre available, no direct
recruitment can be resorted to. The direct recruits should get substantive
vacancies in the permanent cadre, while recruits by transfer can be ad- F
justed against a permanent vacancy or a temporary vacancy depending
upon the vacancy position. A person, who gets a temporary appointment
or promotion, as the case may be, shall not be regarded as a probationer
in that category and on account of the temporary appointment or promo-
tion, he cannot have any preferential claim to that post. Any commence-
ment of probation for the purpose of counting seniority must precede by G
-· an appointment in accordance with the rules. In case a temporary appoin-
tee is allowed to start his probation from a date anterior to the date of his
subsequent appointment in accordance with the rules, that should be
.without prejudice to the seniority of others in the service, in 'this case,
without prejudice to the seniority of direct recruits. [290-A-D] H
282 SUPREME COURT REPORTS [1998) SUPP.1 S.C.R.

A 1.2. It is true that the appellants were appointed earlier in point of time
to the appointments of the direct recruits. But they were not appointed in
accordance with the rules in the sense they were not appointed against the
permanent vacancies intended for recruits by transfer. They were all ap-
pointed temporarily as a stopgap arrangement. The appellants' promotion
as Senior Grade Rangers w.e.f.1.7.1978 clearly indicated that their appoint-
B ments as Assistant Conservators of Forests were only a temporary or stop-
gap arrangement and they were not members of the State Forest Service.
[290-G-H]
13. It is not possible to accept the contention of the appellants that
though the appointments of the appellants were temporary, the Government
C has regularised those appointments prior to the appointments of the direct
recruits and, therefore, they are entitled to claim seniority over the direct
recruits because any appoif!tment/regularisation contrary to the rules,
which would prejudice the rights of direct recruits, cannot be sustained. The
direct recruits in the years 1978, 1979 and 1980 were undergoing training
D and, therefore, it cannot be said that no direct recruits were available for
appointment, which necessitated the recruitment by transfer. [293-E-F]

State of Maharashtra v. Sanjay Thakre, [1995] Supp. 2 SCC 407, relied
on.

E M.S.L. Pati~ Asstt. Conservator of Forests v. State of Maharashtra,
[1996] 11 sec 361, referred to.

2. The appellants were appointed on the relevant dates in excess of
their quota. Therefore, any appointments in excess of the quota prescribed
for the promotees cannot prejudice the rights of the direct recruits. [295-H]
F CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11527 of
1995 Etc.

From the Judgment and Order dated 17.3.95 of the Kerala High •
Court in W.A. No. 878 of 1994.

G WITH

C.A. Nos. 11528-29/95 and 11531/95.

P.S. Poti, T.L.V. Iyer and Ms. Malini Poduval for the Appellants.

H Rajendran Nair, C.N. Sreekumar, V.K. Siddharth and P.B. Suresh
. C.K. ANTONY v. B. MURALEEDHARAN [VENKATASWAMI, J.] 283

for the Respondents. A
G. Prakash and Ms. Beena Prakash for State.

The Judgment of the Court was delivered by

VENKATASWAMI, J. In all these appeals, the vexed and unending B
question of seniority between the direct recruits and promotees arises for
our consideration.

In these appeals, the question relates to a dispute that has arisen in
the cadre of Assistant Conservator of Forests, whose services are governed
under the Kerala Forest Service. C
It is common ground that recruitment to the cadre of Assistant
Conservator of Forests (hereinafter called the "A.C.F.") is directly as well
as by transfer. The proportion between the direct recruits and recruitment
by transfer is also fixed as 3:2 in the Kerala Forest Service Special Rules.
The seniority of a directly recruited A.C.F. has to be determined by the D
date of his appointment as probationary Assistant Conservator. It is the
claim of the promotees - appellants that they were appointed by promotion
as Assistant Conservator of Forests long before 1.5.78., on which date the
first respondent in civil Appeal No. 11527/95 was appointed as a proba-
tionary Assistant Conservator. The other two directly recruited Assistant
Conservators were appointed as probationary Conservators subsequent to E
1.5. 78. Therefore, the dispute centres round the claim of the appellants
whether they were appomted before 1.5.78 and whether such claim is
sustainable under the relevant Kerala Forest Service Special Rules and also
the Kerala State and subordinate Service Rules. We may at once point out
that the first respondent in Civil Appeal No. 11527/95 was appointed in the
cadre in accordance with the above-mentioned rules on 1.5.78, is not in
F
dispute. Likewise, the fact that seniority of that respondent has to be
reckoned on and from 1.5.78, is also not controverted. However, it is the
case of the directly recruited Assistant Conservators in these appeals that
the appointments of the appellants, if any, prior to 1.5.78 were all under
rule 9(a)(i) of the General Rules and the same cannot be taken into G
account for the purpose of inter se seniority. According to them, the inter
se seniority can be reckoned from the date· of regular appointment as
Assistant Conservators in accordance with the Rules, in particular, Rule 2
read with Rule 8 of the Special Rules.

Before considering the appeals further, it is necessary to set out the H
284 SUPREME COURT REPORTS [1998) SUPP.1 S.C.R.

A relevant Service Rules.
Kerala Forest Service Special Rules

Rule 2. Appointment - (a) Appointment to the several categories
of the service shall be made as follows:"
B Category Method of recruitment
(1) (2)

1. Chief Conservator By promotion from
Conservators
c 2. Conservators By promotion from
Dy. Conservators

3. Deputy Conservator By promotion from
Assistant
D Conservators

4. Asstt. Conservators By direct recruitment or
recruitment by transfer from
among Rangers in Kerala
Forest Subordinate Service.
E
Explanation: - Direct recruitment and recruitment by transfer from
among Rangers shall be in the proportion 3:2 to the category of
Assistant Conservators and the ratio shall be applicable only to
the extent to which qualified and suitable candidates are available
in each of the two categories. In the absence of the required
F number of direct recruits to be appointed against the vacancies
apportioned to them, such vacancies shall also be filled up by
recruitment by transfer and vice versa.

Provided that substantive vacancies alone in the category of Assis-
tant Conservators shall be filled up in accordance with the seniority
G of approved probationers.

Rule 8. Seniority - the seniority of a directly recruited Assistant
conservator shall be determined by the date of his appointment as·
probationary Assistant Conservator. Where such date is the same
in the case of two or more members, the seniority inter se shall be
H - determined by their rank in the pass list issued by the Forest

.
C.K. ANTONYv. B. MURALEEDHARAN [VENKATASWAMI, J.] 285

College, Dehra Dun. A
Kerala Service Rules

Rule 18 (a) - The Government shall suspend the lien of an
officer on a permanent post which he holds substantively if he is
appointed in a substantive capacity -· B
(1) To a permanent post outside the cadre on which he is borne,
or
-.
(2) Provisionally to a post on which another officer would hold
a lien had his lien not been suspended under this Rule. C
Kerala State and Subordinate Service Rules, 1958

Rule 2 (1) A person is said to be "appointed to a service" when
in accordance with these Rules or in accordance with the Rules
applicable at the time, as the case may be, he discharges for the D
first time the duties of a post borne on the Cadre of such service
or commences the probation, instruction or training prescribed for
members thereof.

Explana_tion: The Appointment of a person holding a post borne
on the cadre of one service to hold additional charge of a post borne E
on the cadre of another service or to discharge the current duties
thereof does not amount to appointment to the latter service.

Rule 2 (9) "Member of a service" means a person who has been
appointed to that service and who has not retired or resigned, been
removed or dismissed, been substantively transferred or reduced F
to another service, or been discharged otherwise than for want of
a vacancy he may be a probationer, an approved probationer or a
full member of that service.

Rule 2 (13) A candidate is said to be "recruited by transfer" to a
serVIce - G
(i) If his appointment to the service is in accordance with the
orders issued or rules prescribed for recruitment by transfer to the
service; and

(ii) If at the time of his first appointment thereto (a) he is either H
286 SUPREME COURT REPORTS (1998) SUPP.1 S.C.R.

A a full member or an approved probationer in any other service,
the rules for which prescribe a period of probation for members
thereof.

R1Jle 2 (15) " Service" means a group of persons classified by the
State Government as a State or Subordinate Service, as the case
B may.

Note: - When the context so requires "service" means the period
during which a person holds a post or a lien on a post or is a
member of a service as above defined.

C Rule 2 (18) 'Cadre' - The permanent cadre of each service, class
category and grade shall be determined by the State Govern-
ment.

Rule 5. Method of recrnitment -

D Where the normal method of recruitment to any service, class or
category is neither solely by direct recruitment nor solely by trans-
fer but is both by direct recruitment and by transfer -

(a) The proportion or order in which the special rules concerned
may require vacancies to be filled by persons recryited direct and
by those recruited by transfer shall be ap",Jlicable only to substan- .'
E
tive vacancies in the permanent cadre;

(b) A person shall be recruited direct only against a substantive
vacancy in such permanent cadre, and only if the vacancy is one
which should be filled by a direct recruit under the special Rules
F referred to in Clause (a) and

(c) Recruitment to all other vacancies shall be made by Transfer.

(Note: - (1) All permanent vacancies and temporary vacancies
except those of short duration shall be treated as substantive
G vacancies.

(2) Leave vacancies and vacancies of less then 6 months dura-
tion shall be treated as vacar.. ;es of short duration)

(Amended with effect from 17.12.1958
H vide G.O. (P) S/PD dated 17-1-1967).
C.K.ANTONYv. B.MURALEEDHARAN [VENKATASWAMI,J.] 287

Rule 9. Temporary appointments - A
(a) (i) where it is necessary in the public interest, owing to an
emergency which has arisen to fill immediately a vacancy in a post
borne on the cadre of a service, class or category and there would
be undue delay in making such appointment in accordance with
these Rules and the Special Rules, the appointing authority may B
appoint a person otherwise than in accordance with the said Rules,
temporarily.

(a) (ii) ................................................... .

(a) (iii) A person appointed under Clause (1) shall be replaced as C
soon as possible by a member of the service or an approved
candidate qualified to hold the post under the said rules.

(a) (iv) A person appointed under Clause (i) or (ii) shall not be
regarded as a probationer in such service class or category or be
entitled by reason only of such appointment to any preferential D
claim to future appointment to such service, class or category.

Rule 18 (a) Date of commencement of probation of persons first
appointed temporarily - If a person having been appointed tem-
porarily under Sub-Rule (a) or Sub-Rule (c) of Rule 9 to a post
borne on the cadre of any service, class or category otherwise than E
in accordance with the Rules governing appointments thereto, is
subsequently appointed to the service, class or category in accord-
ance with the Rules, he shall commence his probation from the
date of such subsequent appointment or from such earlier date as
the appointing authority may determine, without prejudice to
F
seniority of others.

.Rule 20. Probationer's suitability for fell membership - (a) At the
end of the prescribed or extended period of probation, as the case
may be, the appointing authority shall consider the probationer's
suitability for full membership of the service, class or category for G
which he was selected.

(b) If the appointing authority decides that a probationer is suitable
for such membership, it shall as soon as possible issue an order
declaring the probationer to have satisfactmjly completed his
probation. On the issue of such order, the probation shall be H
288 SUPREME COURT REPORTS [1998) SUPP .1 S.C.R.

A deemed to have satisfactorily completed his probation, on the date
of the expiry of the prescribed or extended period of probation.

Rule 24. Appointment of full members-
(a) Subject to the provisions of Rule 8 an approved probationer
shall be appointed to be a full member in the class or category for
B which he was selected, at the earliest possible opportunity, in any
substantive vacancy which may exist or arise in the permanent
cadre of such class or category and if such vacancy existed from a
date previous to the issue of the order of appointment, he may be
so appointed with retrospective effect from the date or, as the case
c may be, from any subsequent date from which he was continuously
on duty as a member of the service in such class or category or in
a; higher class or category. Provided that when more than one
approved probationer is available for such appointment as full
member, the senior most approved probationer on the date of
vacancy shall be appointed.
D
(b) where appointment to any service, class or category is accord-
ing to rules normally both by direct recruitment and by transfer,
vacancies against which persons have been recruited direct shall
be regarded as a distinct group while all other vacancies shall be
regarded as another distinct group, and appointment of full mem-
E
bers in accordance with Sub Rule (a) shall be made separately in
such of these groups.

Rule 27. Seniority -

(it) Seniority of a person in a service, class, category or grade shall,
F
unless he has been reduced to a lower rank as punishment, be
determined by the date of the order of his first appointment to
such service, class, category or grade.

Explanation:- For the purpose of this Sub Rule, "appointment" shall
G not include appointment under Rule 9 or appointment by promo-
tion under Rule 31.

(b) ·················································
(c) Notwithstanding anything contained in Clauses (a) and (b)
H above, the seniority of a person appointed to a class, category or

1-
C.K. ANTONYv. B. MURALEEDHARAN [VENKATASWAMl,J.] 289

grade in a service on the advice of the Commission shall, unless A
he has been reduced to a lower rank as punishment, be determined
by the date of first effective advice made for his Appointment to
such class, category or grade and when two or more persons are
included in the same list of candidates advised, their relative
seniority shall be fixed according to the order in which their names
are arranged in the advice list.
B

Note - The date of effective advice in this Rule means the Date
of the letter of the commission on the basis of which
the candidates was appointed.

Rule 31. Temporary Promotion - (a)(i) Where it is necessary in the
c
public interest owing to an emergency which has arisen to fill
immediately a vacancy in a post borne on the cadre of a higher
category in a service or class by promotion from a lower category
and there would be undue delay in making such promotion in
accordance with the Rules, the appointing authority may promote D
a person otherwise than in accordance with the Rules, temporarily.

(b) .............................................. ..

( c) A person promoted under Cl~use (i) or clause (ii) of Sub Rule
(a) shall be replaced as soon as possible by the member of the E
service who is entitled to the promotion under the rules, OJ by a
candidate appointed in accordance with the rules, as the case may
be.

(d) A person promoted under Sub Rule (a) or (b) shall not be
regarded as a probationer in the higher category or be entitled by F
reason only of such promotion to any preferential claim to future
promotion to such higher category.

(e) If such person is subsequently promoted to the higher category
in accordance with the Rules, he shall commence his probation, if G
any, in such category from the date of such subsequent promotion
or from such earlier date as the appointing authority may deter-
mine without prejudice to seniority.

On a careful perusal of the above extracted relevant rules, the
following conclusions can be safely reached. H
290 SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R.

A A direct recruit to the cadre of A.C.F. can count seniority only with
effect from the date of his appointment as a probationary Assistant Con-
servator. A person, who has been appointed to a service or post temporari-
ly or provisionally as a stop-gap arrangement, can never be considered as
one, who has been appointed to that post or service. If there is no
B substantive vacancy in the permanent cadre available, no direct recruitment
can be resorted to. The direct recruits should get substantive vacancies in
the permanent cadre, while recruits by transfer can be adjusted against a
permanent vacancy or a temporary vacancy depending upon the vacancy
position. A person, who gets a temporary appointment or promotion, as
C the case may be, shall not be regarded as a probationer in that category
and on account of that temporary appointment or promotion, he cannot
have any preferential claim to that post. Any commencement of probation
for the purpose of counting seniority must precede by an appointment in
accordance with the rules. In case a temporary appointee is allowed to start
his probation from a date anterior to the date of his subsequent appoint-
D ment in accordance with the rules, that should be without prejudice the
seniority of others in the service, in this case, without prejudice to the
seniority of direct recruits.

E Bearing the above broad conclusions in mind, we may now look into
the factual aspects in these cases. The Kerala Public service Commission
advised for training cf the directly recruited A.C.Fs. some time in May,
1976, 1977 and November, 1978. The petitioners in O.P. Nos. 5238/87,
1971/87 and 1388/87 before the High Court were direct recruits to the
F cadre of A.C.F. and were appointed as probationers after successfully
completion of that training on 1.5.78, 1.5.79 and 1.11.80 respectively. The
bone of contention of the appellants is that they were appointed long prior
to the appointments of the above-said direct recruits and, therefore, they
must be given seniority over and above the said direct recruits. It is true
that the appellants were appointed earlier in point of time to the appoint-
G ments of the direct recruits. But the point is that they were not appointed
in accordance with the rules in the sense they were not appointed against
the permanent vacancies intended for recruits by transfer. They were all
appointed temporarily as a stop-gap arrangement. As a matter of fact,
before the Division Bench of the High Court the State was called upon to
H produce the seniority list and also the cadre strength of A.C.F. The
C.K. ANTONYv. B. MURALEEDHARAN [VENKATASWAMI, J.] 291

Division Bench has observed that the State did not come forward with A
consistent factual aspect regarding the seniority list and the cadre strength.
The High Court in paragraphs 19 and 20 has observed as follows :-

"19. In paragraph 13 of the counter affidavit dated 31.12.1994,
the Chief Conservator of Forests (protection) stated that the
sanctioned strength of Assistant Conservator of Forests as on B
1.5.1978 is 29; 14 of which are permanent and 15 are temporary.
While we come to the additional affidavit dated 10.1.1995 sworn
to by the same Chief Conservator of Forests (Protection), what we
see is that he asserts that on 1.5.1978 there were 29 cadre posts of
Assistant Conservators of Forests in the Department. From this, C
it may lead to an inference that the cadre strength of Assistant
Conservators of Forests as on 1.5.1978 was 29. Actually, this stand
taken by him in the additional affidavit dated 10.1.1995 is not
correct. As on 1.5.1978, the strength of the cadre, permanent posts
of Assistant Conservators was only 14 and not 29 as is not stated. D

20. From the above discussion, we come to the conclusion that
the strength of Assistant Conservators of Fores ts, permanent
cadre, has been 14 as on 1.5.1978. As onl.5.1978, from Exhibit PlO
order referred to earlier, it is evident that respondents 4 to 7 were
only Rangers. They were not regularly promoted to the cadre of E
Assistant conservators of Forests. Their promotion to the cadre
was purely under Rule 9 (a) (i) of the General Rules. T~e promo-
tion can by no stretch of imagination confer on them any right to
the post, namely, the post of Assistant Conservators of Forests."

One other interesting aspect noticed by the High Court was that by F
proceedings dated 15.11.79 the appellants were given promotion as Senior
Grade Rangers w.e.f. 1.7.78. If this be the position on 1.7.78, the claim of
the appellants that they were appointed as A.C.Fs. prior to 1.5.78 falls to
the ground. This proceeding dated 15.11.79 has been noticed by the High
Court and it supports the case of the direct recruits that the appointments G
of the appellants prior to 15.11.79 were all temporary or stop-gap arrange-
ments. They cannot, therefore, claim seniority over the direct recruits, who
were regularly appointed in accordance with the rules. A sample order of
appointment was produced to demonstrate that the appointments of the
appellants were only temporary under Rule 9( a)(i). It is an admitted fact H
292 SUPREME COURT REPORTS (1998) SUPP. 1 S.C.R.

A that among the appellants, P.T. .Joseph is the senior most and his appoint-
ment letter as A.C.F. has been produced, which reads as follows:-

"GOVERNMENT OF KERALA

Abstract
B
FOREST DEPARTMENT-ESTABLISHMENT-ASSISTANT
CONSERVATOR OF FORESTS-PROMOTION -AND POST-
INGS - ORDERS ISSUED.

AGRICULTURE (FOREST - EST. DEPARTMENT)
C G.O. Rt. No. 282175/AD. Dated, Trivandrum 31.1.75.

Read: - 1. Letter No. El 3410174 dated 14.1.1975 from Chief
Conservator of Forests, Trivandrum.

ORDER
D
The action of the Chief Conservator of Forests in having
granted leave to Sri. K.S. Devassia, Divisional Forest Officer,
Industrial Plantation Divn., Perimuzhy with effect from 3.9.1974
and in having directed Sri P.B. Renganathan, Divisional Forest
Officer, Vazhachal, to hold full additional charge of the post of
E Divisional Forest Officer, Perumuzhy, during the period is ratified.

Sri P.T. Joseph, Senior most Range Officer in the department
is provisionally promoted as Assistant Conservator of Forests,
..
under rule 9 (a) (i) of the General Rules and Posts as Divisional
F Forest Officer, Perumuzhy , vice Sri. K.S. Devassia on leave.

(By order of the Governor)

Sd/-
V. Lakshmi Narayana Iyer,
G Under Secretary."

After noticing the above aspect, the High Court observed thus:-

"Before proceeding further, it will be quite interesting to note
exhibit PlO proceedings issued by the Chief Conservator of Forests,
H Thiruvananthapuram, on 15.11.1979. By this proceedings, certain
C.K. ANTONYv. B. MURALEEDHARAN [VENKATASWAMI, J.] 293

Forest Rangers were given promotion as Senior Grade Rangers A
with effect from 1.7.1978. That order states that it was in implemen-
tation of the Direction given in G.O. (P) 860/78/Fin. dated
16.12.1978. Senior Grade in the scale of Rs. 650-1150 has been
a!lowed in the ratio of 1:3 between Senior Grade Rangers and
•
Rangers. Babuji A. George, KG. George and P.T. Joseph are B
serial Nos. 19, 20 and 22 in that order who got the benefit of Senior
Grade. That order further gives 1.7.1978 as the date from which
promotion to the cadre of Senior Grade Range officer is given to
these officers. These officers, who were rangers and who got
promotion to the cadre of Senior Grade Range Officers with effect
from 1.7.1978, are now shown in the present list produced before
c
this Court as having been appointed as Assistant Conservators of
Forests in December, 1974 and January, 1975. Learned Govern-
ment pleader has not brought before us any rule or decision of
this Court which could confer on them such a benefit."
D
It is contended on behalf of the appellants that though the appoint-
ments of the appellants were temporary, the Government has regularised
those appointments prior to the appointments of the direct recruits and,
therefore, they are entitled to claim seniority over the direct recruits. We
are unable to agree with this contention as any appointment/regularisation E
contrary to the rules, which would prejudice the rights of direct recruits,
cannot be sustained. Factually, before the appointments of the direct
recruits in the years 1978,1979 and 1980 they were undergoing training as
advised by the. Kerala Public Service Commission. Therefore, it cannot be
contended by the State that no direct recruits were available for appoint- F
ment, which necessitated the recruitment by transfer. In this connection,
we may .usefully refer to two recent judgments of this Court arising under
the Maharashtra Forests Service. There also the question of seniority arose
between the direct recruits and promotees in the cadre of A.C.Fs. In State
of Maharashtra & Anr. Etc. v. Sanjay Thakre & Ors., (1995) Supp 2 SCC G
407, this Court observed as follows:- ·

"We, therefore, hold that the present was not a case about which
it could be said that the quota rule had broken down. In this
connection, it would be apposite to refer to Keshav Chandra Joshi
v. Union of India and A.N. Sehgal v. Raje Ram Sheron which are H
294 SUPREME COURT REPORTS (1998]SUPP ..1 S.C.R.

A judgments by three-Judge and two-Judge Benches respectively.
Both these cases dealt with the promotions given to the concerned
persons in excess of the quota, because of which it was stated that
their promotions were not according to rules. The promotions
were, therefore, held to be fortuitous; it was also observed that the
seniority could not be counted from the dates of fortuitous promo-
B tions. These cases voiced the feeling of the Court that the State
having made the rules, should implement them in letter and spirit;
any justification for dereliction in implementation should not be
countenanced; it should really be snubbed."

C An attempt was made to reconsider the ruling in Sanjay Thakre's case
(supra) in M.S.L. Patil, Asstt. Conservator of Forests, Solarpur
(Maharashtra) & Ors. v. State of Maharashtra & Ors. (1996] 11 SCC 361.
This Court while repelling such a plea, reiterated its earlier view in the
following manner:-

D
"In view of these contentions, the question that arises is whether
the judgment of this Court has been vitiated by any error of law
warranting reconsideration at the behest of some of the persons
who are not parties to the earlier proceedings? It is undoubted
that they were not partit:s to the earlier petition but this Court has
E laid down the general principle of law and, therefore, whether or
not they are parties to the earlier proceedings, the general prin-
ciple of law stands applicable to every person irrespective of the
fact whether he is a party to the earlier order or not. It is not in
dispute that there is a ratio prescribed for the direct recruits and
F the promotees, namely, 1: 1. In other words, for every 100 vacancies
the promotces are entitled only to 50 vacancies. It is not in dispute
that these promotees have been promoted in excess of the quota.
Under those circumstances, it is settled law that the prornbtees
who arc appointed in excess of the quota cannot get the entire
G length of service. Therefore, they are required to be fitted into
seniority according to the rules. As to what is the date on which
the promotccs or the direct recruits came to be appointed into the
respective quota is a matter of record and the seniority is required
to be determined according to the law laid down by this court. In
H several judgments of this Court it is now firmly settled that merely
C.K.ANTONYv. B.MURALEEDHARAN [VENKATASWAMI,J.] 295

because of the fact that the State Government could not make A
direct recruitment due to its inaction, it cannot be said that the
rule of quota has been broken down. Therefore, as and when the
direct recruitment has been made, the direct recruits are entitled
to placement of their seniority into the vacancies reserved for them
as per the ratio and the seniority determined as per the rules within B
the respective quota. Similarly, when the promotees came to be
promoted in accordance with the rules in excess of their quota,
this Court stated inKeshav Chandra Joshi v. Union of India through
a Bench of three Hon'ble judges, that the promotees in excess of
the quota cannot be given seniority from the respective dates of C
their promotions. They have to be considered only form the respec-
tive dates on which their respective quota is available. The same
decision was followed and reiterated in A.N. Sehgal v. Raje Ram
Sheora11. Under these circumstances we do not think that the
judgment of this Court is vitiated by any error of law for recon- D
sideration. Even Rule 4, second proviso has no application to the
facts in this case. Rule 4 contemplates the seniority and second
proviso postulates that when the recruitment could not be made,
they have to certify the ground on which it could not be made and
thereafter the seniority has to be determined. In view of the law
now laid down, the certification of the non-making of direct E
recruitment according to rules, bears no relevance. The question
of carry forward in this case, as laid down in Manda) case, has no
application for the reason that the recruitment in proportion is one
of the methods of recruitment and is required to be made. The
balance posts are required to be recruited by subsequent publica- F
tion and the promotees have no right to get into the post reserved
for the direct recruits. Manda! case concerns carry forward posts
reserved under Article 16(4) for Scheduled Castes, Scheduled
Tribes and other Backward Classes which has nothing to do in this
case. Though some of the grounds will be available to argue the G
case on merits, that is no ground to reopen the settled law laid by
this Court in earlier decision."

We have already noticed that the appellants were appointed on the
relevant dates in excess of their quota. Therefore, any appointments in H
296 SUPREME COURT REPORTS (1998) SUPP. lS.C.R.

A excess of the quota prescribed for the promotees cannot prejudice the
rights of the direct recruits. The common judgment under appeal is quite
in accord with the law settled by this Court and the same does not call for
any interference.

In the result, the appeals fail and are dismissed accordingly with no
B order as to costs.
v.s.s. Appeals dismissed.