‘Cadre management is exclusively prerogative of Govt’
*Separate seniority list in cadre of Foresters reasonable
JAMMU, Sept 7: A Division Bench of the Common High Court of Jammu & Kashmir and Ladakh comprising Justice Tashi Rabstan and Justice Wasim Sadiq Nargal has held that Government has power under the Administrative Instructions to fill up the lacunae and gap in the Rules and cadre management is exclusively its prerogative.
The DB was dealing with an appeal arisen out of the judgment dated July 21, 2018 passed by the Single Judge and legal issue—whether the Government is competent to make distinction among the Foresters on the basis of training of the Direct Deputed Ranger (DDR).
Only question which arose before the Writ Court was whether two seniority lists of Foresters could be maintained—one of the those Foresters who held DDR Training prior to their appointment and the second of those Foresters, who were deputed for training while being in service.
The Single Judge had held that 20% posts of the Range Officer Grade-I were required to be filled up from such Foresters who have undergone DDR Training Course after having been appointed as Foresters for five years and further held that only such candidates alone were claimants to the post of Range Officer Grade-I.
The private respondents would not have any right of consideration against the 20% quota for the post of Range Officers Grade-I and consequently their names ought not to figure in the list as contains the Forest Rangers Training Course as in-service candidates, the Single Judge had mentioned in the judgment while quashing Government circular, order and communication.
Senior Advocate Z A Shah appearing for the appellants submitted before the DB that Writ Court has nowhere indicated as to what will be the position of the appellants, who had already undergone DDR training before their appointment and whether such candidates can also be considered for the next promotion of Range Officer Grade-I or they cannot be promoted at all.
Advocate Abhinav Sharma appearing for the respondents pointed out that benefit of SRO 106 of 1992 can only be extended to such in-service Foresters, who are not DDR Trained at the time of their initial appointment and are sponsored subsequently by the Department. He fairly conceded that the petitioners are not asserting their right to promotion for the post of Range Officers Grade-II but they are questioning the right of the private respondents (appellants before DB) to be placed separately in the seniority list to be considered for promotion to the post of Range Officer.
After hearing the parties at length and perusal of record, the DB observed, “admittedly, the writ petitioners before the Writ Court do not hold DDR Training instead all the writ petitioners have passed Kashmir Forest Training Course. Thus, by no stretch of imagination could claim parity with the appellants as both form different class”.
“Besides that, the appellants were not self sponsored DDR, but were nominated to undergo the Training Course by the PCCF/Managing Director, SFC and others, before they came to be appointed on adhoc basis as Foresters and were subsequently regularized, as such, under the J&K Special Provisions Act, 2010”, the DB said, adding “the Rules of 2004 by no stretch of imagination would affect the right of the appellants who admittedly had undergone the said course much before the promulgation of the Rules, otherwise, on fulfillment and completion of all requisite conditions as were prescribed there”.
“Thus, the right of the petitioners is confined only against the post of Range Officers-Grade II and have no locus to question the framing of the separate seniority list with regard to the appellants, who were DDR Trained”, the DB said.
“There is no denying the fact that the Government has a power under the Administrative Instructions to fill up the lacunae/gap in the Rules. By issuing the Executive Instruction dated 25.10.2013, the Government has filled up the gap in the Rules by providing for inclusion of trained DDR Foresters in the category of trained DDR Foresters previously sponsored by the Government and no fault can be founded with the action of the Government to issue the Executive Instruction”, the DB said.
“The only issue involved in the present appeal is whether the Government is competent to make distinction amongst the Foresters on the basis of the training of DDR. Once the action of the Government is valid under law, then no fault can be found with the decision of the Government to include the appellants as trained Foresters in the category of trained Foresters, who have already acquired DDR Training on the recommendation of the State Government”, the DB said.
“The law has been settled at naught by the Supreme Court in various authoritative pronouncements that the cadre management is exclusively the prerogative of the Government and the Government, as such, has a free hand in the matter of managing any cadre of the service”, the DB said, adding “the only condition is that the action of the Government must be reasonable and fair and above all non-discriminatory. Thus, no fault can be attributed to the Government to have different seniority on the basis of training for the appellants”.
Accordingly, DB allowed the appeal and set aside the impugned judgment and order dated 21st July 2018, in the manner that the writ petitioners are not DDR Trained and, as such, have no locus to call in question either the seniority or the training.
The Government by making DDR Training as the distinguishing feature was competent in law to frame a separate seniority list in the cadre of Foresters based on Specialized Training DDR and such principle adopted by the Government being reasonable, fair and nondiscriminatory, cannot be faulted.
“Thus, the quashment of the circular and subsequent communication dated 25.10.2013, Forest Order No. 45 of 2015 dated 07.03.2015 and the Communication No. FST/Lit/NG/280/2013 dated 17.12.2013, is not legally sustainable and the judgment to that extent is set aside”, read the judgment authored by Justice Wasim Sadiq Nargal.
“The dominating factor for further promotion to the post of Range Officer Grade-I is DDR Training, which is the basis for promotion to the post of Range Officer and in absence of any challenge either to the training, it has to be accepted that the appellants training is valid and, as such, are entitled to the benefit of training and have a vested right of seeking promotion”, the DB further said.
“Since the requirement of competitive examination under Rule 16 of 1990 Rules, was restricted to the category of candidates mentioned in Rule 8.1 (candidates sponsored by the States/Union Territories/ Autonomous District Councils) and as per Rule 8, the competitive examination for direct recruits was not applicable to other categories of candidates. Thus, we hold that the requirement of passing of the competitive examination was only meant for those who were sponsored by the State Government and not for those who fall in category of Rule 8”, the judgment of DB further read.
“Thus, the finding of the Single Judge that the competitive examination was mandatory as prescribed under Clause 16 to the candidates falling in category of 8.1, is also set aside. We hold that the action of the Government in fixing the seniority of the appellants being DDR Trained is reasonable, fair and non-discriminatory”, the DB said.