Holding

The training period of direct recruits, when treated as "in service" and upon successful completion of training, must be counted for seniority in the Himachal Pradesh Forest Service (Class II).

Summary

The case concerned whether the training period of direct recruits to the Himachal Pradesh Forest Service (Class II) should be counted for seniority. Respondents, who were promotee officers, applied to the Himachal Pradesh Administrative Tribunal for a direction that seniority be measured from the date of joining the service, not from the date of joining training. The Tribunal allowed the application, holding that the training period counted only for pay. The State appealed, contending that the amended recruitment rules expressly state that candidates undergoing training are "in service" and therefore the period must be counted for seniority. The Supreme Court examined the language of column (10) of the schedule, the constitutional power under Article 309, and relevant precedents, concluding that the provision is clear and unambiguous and there is no prohibition to counting the training period for seniority. Consequently, the Court held that the training period, upon successful completion and absorption, should be counted for seniority, setting aside the Tribunal's order. The appeal was allowed and the Tribunal's decision dismissed.

Issues considered

Whether the training period of direct recruits, designated as "in service" under column (10) of the Himachal Pradesh Forest Service (Class II) Recruitment Rules, should be counted for determining seniority.
Whether the language of the recruitment rules and the constitutional power under Article 309 permit such counting.
Whether any statutory provision prohibits counting the training period for seniority.

Legislation cited

Constitution of Indias. Article 309

Subjects

service lawsenioritytraining periodrecruitment rulesHimachal Pradesh Forest ServiceArticle 309in servicedirect recruitadministrative tribunal

Judgment

A STATE OF HIMACHAL PRADESH
v.
SHRI J.L. SHARMA AND ANR.

NOVEMBER 18, 1997

B [G.N. RAY AND G.B. PATTANAJK, JJ.]

Service Law

Himachal Pradesh Forest Service (Class JI) Recruitment, Promotion _.
C and Certain Conditions of Service Rules, 1966-Rule (4), Schedule, Column
(10)-Seniority-Direct Recruits-Training period-For the purpose of
seniorit- 'Jn service'' Interpretation of-Held, for the purpose of seniority
training period will be treated as part of service-Constitution of India,
1950-Art. 309.
D The respondents were class II promotee officers of the Himachal
Pradesh Forest Service, governed by the Himachal Pradesh Forest Service
(Class II) Recruitment Promotion and Certain Conditions of Service Rules,
1966. The respondents filed an application before the Himachal Pradesh
Administrative Tribunal for a direction that direct recruits to the Forest
E Service Class II were entitled to their seniority from the date of their joining
the service and not from the date of their joining the training. The Tribunal"
while allowing the above application held that training period of direct recruits
would be counted only for the purpose of getting pay and not for the purpose
of seniority. Aggrieved, the State came up in appeal.

F The contention of the appellant State was that in view of the amended
provisions of the Recruitment Rules, the training period of a direct recruit
was to be treated as "in service" and therefore the said period necessarily
would be counted for the purpose of determining the seniority of a direct
recruit in the service.

G The contention of the respondents was that the Rules read as a whole
clearly indicate that the amended provision merely conferred a right upon
a candidate joining the Institute for Training to get pay in the lowest stage
of the pay scale and the said training period cannot be counted for the
purpose of determining the seniority of the direct recruits. It was further
H contended that column (7) of the Schedule to the Rules clearly provides that
174
STATE v. J.L. SHARMA 175
before becoming a member of the service, a direct recruit has to obtain A
certain essential qualifications, and before obtaining the essential
qualifications, the training period cannot be counted for the purpose of
seniority.

Allowing the appeal, this Court
B
HELD : l. l. The training period of the direct recruits shall be counted
for determining the seniority in the service provided the said direct recruits
successfully complete the training and then absorbed in Class II Forest
Service. The Tribunal committed serious error of law in holding that the
training period will be treated to be 'in service' only for the purpose of
getting pay and not for the purpose of seniority. (180-C; 178-C] C
1.2. The language of Column (10) of the Schedule to the Rule of
Amendment Rules of 1986 is clear and unambiguous and unequivocally
indicates that the period of training shall be treated as 'in service'. There
is no prohibition or restrictions in the statutory Rules for counting the
training period for the purpose of seniority. Thus, training period will be D
treated as a-part of the service and will necessarily be counted for the
seniority of direct recruits. 1179-D-FI

2. The Legislature under Art. 309 of Constitution of India has the
power to regulate the recruitment and conditions of service of persons
appointed to public service or post in connection with the affairs of Union or E
any State. In exercise of such power under the proviso to Article 309 the
Recruitment Rules to the Himachal Pradesh Forest Service Class II has
been made and the said Rules also has been amended. The amended Rules,
therefore, is a competent legislation determining the service conditions of
persons recruited to the Himachal Pradesh Forest Service Class II. F
1178-E-GI

R.S. Ajara & others v. State of Gujarat and others, (1997] 3 SCC 641
and A.N. Sehgal and others v. Raje Ram Sheoran and others, (1992( Supp.
1 sec 304, referred to.

Prafulla Kumar Swain v. Prakash Chandra Mishra and others, [19931 G
Supp. 3 SCC 181, held inapplicable.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7767 of 1997.

From the Judgment and Order dated 16.12.96 of the Himachal Pradesh
Administrative Tribunal, Shim la, in O.A. No. I 09 of 1987. H
176 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A Rajiv Nanda for T. Sridharan for the Appellant.
Naresh K. Sharma for the Respondents.
The Judgment of the Court was delivered by
PATTANAIK, J. Delay condoned.
B Leave granted.
This appeal by special leave is directed against the judgment of the
Himachal Pradesh Administrative Tribunal, Shimla dated 16th December, 1996
passed in O.A. No. I 09 of 1987. The respondents are promotee officers to the
Himachal Pradesh Forest Service Class II. They filed an application before the
C Tribunal for a direction that the direct recruits to the Forest Service Class II
are entitled to their seniority from the date of their joining after completion
of the training and not from the date of their joining the training at the Forest
Research Institute in terms of the Notification dated 30th April, 1986. The
Tribunal by the impugned judgment having granted that relief and having
D held that the direct recruits are only entitled to get pay while continuing under
training in the Forest Research Institute and will not get the benefit of
seniority vis-a-vis the promotees, the State has come up in appeal. The
question that arises for consideration, therefore, is whether a direct recruit will
be entitled to count the training period for the purpose of his seniority in the
service or not ? The answer to this question will depend upon the relevant
E service rules which govern the conditions of service of the employees in a
particular State.
The learned counsel appearing for the appellant- State contends that
the Rules framed by the Governor under proviso to Article 309 of the
Constitution dealing with the conditions of service in respect of Himachal
p Pradesh Forest Service (Class II) is called the Himachal Pradesh Forest Service
(Class II) Recruitment promotion and certain conditions of Services Rules,
1966. Rule (4) thereof provides that the method of recruitment to the post in
the said service, age limit, qualifications and other matters connected therewith
shall be as specified in columns 5 to 18 of the said schedule. Thus the
Schedule itself.becomes a part of the statutory recruitment rules determining
G the conditions of service. By Notification dated 30th April, 1986 Schedules
to the Rules were amended and in column (I 0) the following provision was
inserted :
"The candidates selected for training at Forest Research Institute and
Colleges, Dehradun or at any other Place, shall while undergoing the·.,.
H training be treated as 'in service candidates from the date of joining

II
STATE v. J.L. SHARMA (PATTANAIK, J.] 177
the Institute. During the period of training, the candidates shall receive A
pay in the lowest stage of the pay scale of HPFS-11 applicable to the
...... services & allowances admissible thereon during the first year and at
the second stage of that scale during the second year;

Provided that the second increment shall be granted only when
a direct recruit has passed the prescribed examination (s) from the B
concerned Institute/College."

In view of the amended provisions of the Recruitment Rules, the training
period of a direct recruit will have to be treated as 'in service' and therefore,
the said period necessarily will have to be counted for the purpose of
determining the seniority of a direct recruit in the service. The Tribunal, c
according to the learned counsel for the appellant, was in error in interpreting
the aforesaid, provision of the Rules. In support of his contention reliance has
been placed on a decision of this Court in the case of R.S. Ajara & Ors. v.
State of Gujarat and Ors., [ 1997] 3 SCC 641. Mr. Sharma, the learned counsel
appearing for the promotees - respondents, on the other hand contended that
the Ru Jes read as a whole clearly indicate that the amended provisions merely D
conferred a right upon a candidate joining the Institute for training to get pay
in the lowest stage of the pay scale of Himachal Pradesh Forest Service Class
II and the said training period cannot be counted for the purpose of determining
the seniority of the direct recruits. According to the learned counsel, if
column (10) of the Rules is interpreted to mean that the training period of a
direct recruit would also be counted for seniority then the said interpretation E
will be repugnant to the several other provisions of the Rules and it will not
be possible to harmonize the inconsistencies. The learned counsel further
contended that in view of the decision of this Court in Prafulla Kumar Swain
v. Prakash Chandra Misra and Ors., [ 1993] Supp. 3 SCC 181, which is a three
Judge Bench Judgment of this Court, the training period of a direct recruit
F
cannot be counted for determining seniority in the service. According to the
learned counsel the aforesaid amended provisions do not purport to fix the
seniority of the direct recruits and it merely specified the monetary emoluments
which a selected candidate would get during the period of training. They do
( not become members of the service during the period of training but merely
treated as 'in service'. This is also apparent from the letters issued by the G
State Government to the successful candidates indicating that the officers
shall be on probation for two years on joining the Department of the Forest
Farming and Conservation after completion of their S.F.S. course from their
respective batches commencing from 1.4.1985, 1.11.1985 and 1.4.1986. The
r. \
learned counsel further urged that column (7) of the schedule clearly provides
that before becoming a member of the service, a direct recruit has to obtain H
178 SUPREME COURT REPORTS [1997) SUPP. 5 S.C.R.

A certain essential qualifications, one of them being a Diploma course at the
Forest Research Institute and College, Dehradun or its equivalent. This being
the position a direct recruit cannot be said to be a member of the service even
....
before obtaining the essential qualifications, and therefore, the training period
cannot be counted for the purpose of seniority. In this connection, the
B learned counsel in his written notes has placed reliance on the judgement of
this Court in A.N. Sehgal and Ors. v. Raje Ram Sheoran and Ors., (1992]
Supp. I SCC 304. It was further urged that under the Rules even a direct
recruit is required to undergo probation for a period of two years, and
therefore, until successful completion of the said probation period there is no
appointment to the cadre and consequently no question of counting the
C training period for the purpose of seniority. In this view of the matter, the
counsel urged that the Tribunal rightly disposed of the Application by holding
that the training period of direct recruits will be treated only for the purpose
of getting pay and not for the purpose of seniority.

In view of the rival submissions at the Bar the only question that arises
D for consideration is as to what is the correct interpretation of Column (IO) of
the Amended Recruitment Rules which statutorily declares the period of
training to be 'in service'. Under the Constitution under Article 309 the
Legislature has the power to regulate the recruitment, and conditions of
service of persons appointed, to public services and posts in connection with
E the affairs of the Union or of any State. Under proviso to Article 309 the
President in case of Union and the Governor in case of a State has been
empowered to make rules regulating the recruitment and conditions of service
of persons appointed until provision in that behalf is made by or under an
Act of the appropriate Legislature. In exercise of such power under the
proviso to Article 309 the Recruitment Rules to the Himachal Pradesh Forest
F Service Class II has been made and the said Rules also has been amended.
The Amended Rules, therefore, is a competent legislation determining the
service ~onditions of persons recruited to the Himachal Pradesh Forest Service
Class JI. In R.S. Ajara 's case (supra), this Court considered the question as
to whether training period of a direct recruit can be taken into account for
G fixation of seniority in the cadre. In that case, the statutory Recruitment Rules
did not at all deal with the question of seniority of the officers directly
recruited and promotees. The Government, however, passed a Resolution
dated 31.1.1992 declaring therein that the training period of directly recruited
Assistant Conservators of Forests in Gujarat State Forest Service, Class II,
shall be taken into account for the purposes of seniority. This Court considered
H the aforesaid resolution of the Government and came to hold that since in the
STATE v. J.L. SHARMA [PATTANAIK, J.] 179
·statutory Recruitment Rules there is no provision for determination of inter A
se seniority between the promotees and direct recruits and there being no
provision which can be said to be contrary to the aforesaid administrative
resolution of the State Government, the resolution must be held to be valid
and the period during which a direct recruit undergoes training can be taken
into account for determining his seniority in the cadre of Class ll Forest B
Service. The case in hand is a much stronger case than the case which was •
for consideration before this Court in R.S. Ajara since in the present case the
statutory Recruitment Rules itself contained the stipulation that the training
period shall be treated to be 'in service'. We are unable to accept the
interpretation given by the Tribunal to the amended provisions of Column
(I 0) of the Rules to the effect that the training period of direct recruits will C
be treated only for the purpose of getting pay and not for the purpose of
seniority. If really the legislative intent would have been to grant pay to the
candidates while on training then it would not have been necessary to
indicate that "while undergoing the training be treated as 'in service'
candidates from the date of joining the Institute". The Language of Column
(I 0) as amended by the Third Amendment Rules of 1986 is clear and D
unambiguous and unequivocally indicates that the period of training shall be
treated as 'in service'. We do not find any prohibition or restrictions in the
statutory rules prohibiting the 'in service' period for being counted for the
purpose of seniority. This being the position in our considered opinion the
Tribunal committed serious error of law in holding that the training period will E
be treated to be 'in service' only for the purpose of getting pay and not for
the purpose of seniority. No such limited interpretation can be given to the
express language used in Column (10) and on the other hand on giving a full
effect the provisions of Column ( 10) the conclusion is irresistible that the
training period witl be treated as a part of the service and will necessarily,
therefore, be counted for the seniority of the direct recruits. The decision of F
this Court in Prafulla Kumar Swain case on which the learned counsel for the
respondent relied. upon is of no assistance inasmuch as in the said case the
Regulation 12 (c) in unmistakable terms had provided that the training period
will not count as service under Government and service will count only from
the date of appointment to the service after successful completion of the G
course of training. In fact the aforesaid decision has been duly noticed by
this Court in RS. Ajara's case and on account of the distinctive features of
regulation containing a prohibition it has been held that the decision is of no
application. We have also considered the submissions of the learned counsel
for the respondent that such interpretation of ours would be repugnant to
other provisions of the Recruitment Rules but on a thorough scrutiny of the H
180 SUPREME COURT REPORTS (1997) SUPP. 5 S.C.R.

A Rules we do not find any repugnancy which can be said to occur on account
the interpretation given by us to column (I 0) of the Schedule and other
columns in the Schedule. We have also carefully gone through the decision
of this Court in the case of A.N. Sehgal (supra) and we do not find anything
stated therein contrary to what we have indicated in the present case in
B interpreting the provisions of the Recruitment Rules determining the service
• conditions of the employees of the Himachal Pradesh Forest Service Class II.
In the aforesaid premises the impugned judgment and order of the Tribunal
is set aside and O.A. No. 109 ofl 987 stands dismissed. It is held that the
training period of the direct recruits shall be counted for determining the
seniority in the service provided of course the said direct recruit successfully
C completes the training and then is absorbed in Class II Forest Service. This
appeal is allowed but in the circumstances there will be no order as to costs.

S.V.K.l. Appeal allowed.