ASHOK RAM PARHAD & ORS.versusTHE STATE OF MAHARASHTRA & ORS.

900                      [2023]REPORTS
               SUPREME COURT    2 S.C.R. 900              [2023] 2 S.C.R.


A                      ASHOK RAM PARHAD & ORS.
                                       v.
                 THE STATE OF MAHARASHTRA & ORS.
                         (Civil Appeal No. 822 of 2023)
B                              MARCH 15, 2023
           [SANJAY KISHAN KAUL AND ABHAY S. OKA, JJ.]
             Divisional Forest Officer (in Maharashtra Forest Service,
      Class I) (Recruitment) Rules, 1984 – Proviso to r.2 – Maharashtra
      Forest Service, Group A (Junior Scale) (Recruitment) Rules, 1998 –
C
      rr.3(b), 6 – Appellants who were recruited in 2014 and underwent a
      training, were appointed to the post of Assistant Conservator of
      Forest (ACF) through nomination (direct appointment) in 2016
      whereas respondent nos.4 to 9 were directly promoted to the post of
      ACF in 2014 and were not required to undergo the aforesaid training
D     – Appellants filed application before Tribunal for declaration that
      their appointment be considered from the date of commencement of
      the training and, that the training period undergone be considered
      as period of service – A direction was also sought for payment of
      salary as per the pay scale prescribed for the post of ACF by
      considering the period of training as on probation/duty – Tribunal
E
      partly allowed the appellants’ application – Review application filed
      by respondent no.1 was dismissed – Thereafter, Government
      accepting the judgment, passed Resolution resolving that successful
      completion of training period would be considered as regular service
      from the date of inception of training for all service purposes – The
F     Resolution also provided that the ACF appointed by nomination
      shall be considered from the initial date of their training and the
      seniority will be considered accordingly – Respondent nos.4 to 9
      filed writ petition before the High Court on the ground that though
      they were promoted as ACF before the appellants but were shown
      junior to the appellants in the seniority list of ACF – High Court
G
      opined that the respondents would not be affected by the Tribunal’s
      order to the extent of directing payment of salary and the pay scale
      to the appellants from the date of initiation of the training period,
      as the respondents’ right would only be affected while considering
      the seniority vis-à-vis promotion to the post of Divisional Forest
H     Officer (DFO) – Direction of the Tribunal to pay salary to them as
                                       900
       ASHOK RAM PARHAD & ORS. v. THE STATE OF                             901
               MAHARASHTRA & ORS.

per the pay scale was found reasonable – With regard to the                A
seniority, the High Court held that the seniority of persons selected
for the post of ACF by nomination shall be counted from the date of
issuance of appointment order after successful completion of training
qua the person appointed to ACF by promotion – On appeal, held:
Proviso to r.2 of the 1984 Rules is unambiguous – Appointment is
                                                                           B
different from the recruitment process, which starts with the
commencement of training – High Court’s view is correct –
Government resolutions cannot override statutory rules – In the
present case, the resolutions have been passed in the context that
the person who successfully completes the training effectively gets
the monetary compensation for his training period and is not               C
deprived of the same – This cannot amount to giving seniority from
the date of initial recruitment process to determine inter se seniority,
when the Proviso to r. 2 of the 1984 Rules makes the date of
appointment for direct recruits clear – Even if the Government
Resolution dated 25.01.1990 upgraded the post of ACF from Class
                                                                           D
II to Class I, the Proviso to r.2 of the 1984 Rules will continue to
hold valid in determining the period of service – Further, rr.3B and
6 of the 1988 Rules leave no ambiguity and in fact read in consonance
and the period of probation has to be necessarily excluded from
period of service – The resolutions neither speaking about promotion
to the post of DFO nor about seniority conclusively, the Proviso           E
would operate with full force – Entrance and Training Rules (Revised)
for the State Forest Service Officers, 2004 – Constitution of India –
Art. 309.
      Service Law – Government resolutions vis-à-vis statutory rule
– Held: In service jurisprudence, the service rules are liable to          F
prevail – There can be Government resolutions being in consonance
with or expounding the rules, but not in conflict with the same –
Government resolutions issued by the Administrative Department
cannot have the status of a statutory rule.
      Dismissing the appeal, the Court                                     G
       HELD: 1.1 In service jurisprudence, the service rules are
liable to prevail. There can be Government resolutions being in
consonance with or expounding the rules, but not in conflict with
the same. The statutory Rules framed under Article 309 of the
Constitution, i.e., the 1984 Rules, Rule 2 refers to the appointment       H
902           SUPREME COURT REPORTS                      [2023] 2 S.C.R.


A     to the post of the DFO and the same to be made by promotion
      from amongst officers of the Maharashtra Forest Service and also
      by appointment directly. The Proviso to Rule 2 of the 1984 Rules
      is unambiguous and quite clear, i.e., the period spent on training
      at Government Forest Colleges and other period of probation
      including extended period of probation, if any, “shall not be
B
      counted towards the requisite period of service.” Thus, what is
      envisaged is that the appointment is diff erent from the
      recruitment process, which starts with the commencement of
      training. There can be possibilities of a candidate not completing
      the training satisfactorily, thereby resulting in the candidate’s
C     removal on probation. Such probation period can also be extended
      to see whether a candidate improves in performance. (Hence,
      even if the Government Resolution dated 25.01.1990 upgraded
      the post of ACF from Class II to Class I, the Proviso to Rule 2 of
      the 1984 Rules will continue to hold valid in determining the
      period of service.) [Para 25][911-F-G; 912-A-B]
D
            1.2 In the aforesaid context if this Court turns to the 1998
      Rules, more specifically Rule 3(b), the stipulation is that in case
      of a nomination, the same is based on the result of the competitive
      examination held by the Commission in accordance with the Rules
      and the candidate is required to have “successfully completed
E     the training course.” Rule 6 provides for probation for a period
      of three years including two years of ACF training course and
      one year field training, as decided by the Principal Chief
      Conservator of Forests. Thus, even reading of these extant Rules
      makes the process for such direct recruitments quite clear. The
F     Entrance and Training Rules (Revised) for the State Forest
      Service Officers, 2004 (“2004 Rules”) are comprehensive in
      character and set forth how the recruitment process will take
      place. On behalf of the appellants there is overemphasis on the
      expression “person appointed to the post by nomination” under
      Rule 6 of the 1998 Rules, without appreciating the context in
G     which such expression has been used. In contending that the
      interpretation given by the High Court would amount to making
      the opening part of Rule 6 otiose, what is lost sight of is that
      were the appellants’ plea to be accepted, it would amount to
      making the Proviso to Rule 2 of the 1984 Rules otiose. The
H
       ASHOK RAM PARHAD & ORS. v. THE STATE OF                         903
               MAHARASHTRA & ORS.

Government resolutions issued by the Administrative                    A
Department cannot have the status of a statutory rule although
such resolutions may have their own effect. The High Court’s
view is the correct view. The resolutions have been passed in
the context that the person who successfully completes the
training effectively gets the monetary compensation for his training
                                                                       B
period and is not deprived of the same. This cannot amount to
giving seniority from the date of initial recruitment process to
determine inter se seniority, when the Proviso to Rule 2 of the
1984 Rules makes the date of appointment for direct recruits
clear. This is also in the background that while the direct
appointees have no experience in the field having been freshly         C
recruited, the promotees have been doing the task. In the present
case, the very factum of Proviso to Rule 2 of the 1984 Rules
being inserted in the rule has to be assigned a meaning, as
otherwise, it would imply that the Proviso has become otiose. It
cannot be said that the Proviso is not to be read in the context of
                                                                       D
the aspect of promotion. Rules 3B and 6 of the 1988 Rules also
leave no ambiguity in this behalf and in fact read in consonance
and the period of probation has to be necessarily excluded from
period of service. The grant of monetary benefit is a different
aspect. On having come to the conclusion that the Government
resolutions cannot override statutory rules, and the resolutions       E
neither speaking about promotion to the post of DFO nor about
seniority conclusively, the Proviso would operate with full force.
The applicable Rules leave no ambiguity in the matter and must
prevail. [Paras 26-32][912-C-H; 913-A, C-F]
      R. S. Ajara & Ors. v. State of Gujarat (1997) 3 SCC              F
      641; Prafulla Kumar Swain v. Prakash Chandra Misra
      & Ors. (1993) 3 Supp SCC 181; Commandant, 11th
      Battalion, A.P. Special Police (IR) v. B. Shankar Naik
      (2003) 5 SCC 580 – referred to.
                      Case Law Reference                               G
(1997) 3 SCC 641                   referred to        Paras 10
(1993) 3 Supp SCC 181              referred to        Paras 14
(2003) 5 SCC 580                   referred to        Para 18
                                                                       H
904              SUPREME COURT REPORTS                         [2023] 2 S.C.R.


A             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 822 of
      2023.
            From the Judgment and Order dated 23.04.2021 of the High Court
      of Judicature at Bombay at Aurangabad in WP No. 2026 of 2019.
              P. S. Patwalia, Sr. Adv., Somiran Sharma, Adv. for the Appellants.
B
           Sudhanshu S. Choudhari, Aniruddha Joshi, Siddharth
      Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Amit Singh,
      Lokesh Dutt Sharma, Ms. Kirti Dadheech, Rameshwar Prasad Goyal,
      Gagan Sanghi, Akash Kakade, Somanatha Padhan, Ashok Anand, Swetab
      Kumar, Pawan Kaushik, Advs. for the Respondents.
C
              The Judgment of the Court was delivered by
              SANJAY KISHAN KAUL, J.
             1. This is one more unending dispute arising between direct recruits
      and promotees qua their inter se seniority. The post for which the
D     recruitment took place was the Assistant Conservator of Forest
      (hereinafter referred to as “ACF”). The method of recruitment for the
      said post was twofold – nomination (direct appointment) and promotion.
      Recruits to ACF by promotion assume charge from the day they are
      promoted to the said post and are not required to undergo two years of
      ACF training and one year of field training. This is distinct from the
E
      persons selected and appointed by nomination where such training is
      compulsory.
             2. The ACF post, in turn, is the feeder cadre to the post of
      Divisional Forest Officer (hereinafter referred to as “DFO”). As per
      Rule 5 of the Assistant Conservator of Forests in the Maharashtra Forest
F
      Service, Group A (Junior Scale) (Recruitment) Rules, 1998 (hereinafter
      referred to as the “1998 Rules”), appointment to the post of ACF shall
      be in the ratio of 50:50 from these two sources.
            3. The appellants before us were appointed to the post of ACF
      through nomination in 2016. They had been recruited in 2014 and went
G     through a training. Respondent nos.4 to 9 were directly promoted to the
      post of ACF in 2014.
              Litigation History:
            4. The Maharashtra Public Service Commission, respondent no.3,
H     issued an advertisement on 14.12.2012 to fill up a total of 33 posts of
     ASHOK RAM PARHAD & ORS. v. THE STATE OF                                     905
    MAHARASHTRA & ORS. [SANJAY KISHAN KAUL, J.]

ACF through Maharashtra Forest Service Examination, 2012. The                    A
appellants applied for the post, for which the selection list was published
on 13.06.2013. However, instead of issuing appointment orders appointing
the appellants on probation, respondent no.1 issued a letter dated
19.06.2013 informing the appellants that they will be sent to pre-
appointment training. The appellants claimed that their representation to
                                                                                 B
remedy the same remained unanswered.
       5. The appellants thus filed an application before the Maharashtra
Administrative Tribunal at Mumbai (hereinafter referred to as the
“Tribunal”) for declaration that their appointment as ACF be considered
from the date of commencement of the training and, that the training
period undergone by them be considered as period of service. They also           C
sought a direction for payment of salary as per the pay scale prescribed
for the post of ACF by considering the period of training as on probation/
duty.
       6. The Tribunal, in terms of its order dated 03.02.2016, partly
allowed the application of the appellants. It was observed that the              D
recruitment rules for the post of ACF in the Maharashtra Forests Service
Class II (hereinafter referred to as “the 1965 Rules”), which were
accompaniment to the Government Resolution dated 17.02.1965, inter
alia provided that a candidate was eligible for the post of ACF after
completing the prescribed course of training. However, these Rules were          E
not framed under Article 309 of the Constitution, and were never finalised.
Moreover, the draft rules had been superseded by the 1998 Rules, as
was also provided in the Preamble of 1998 Rules. The respondents’ plea
that the candidate would be eligible to be given regular pay scale after
successful completion of probation of three years, was turned down
while opining that no reason was given for non-applicability of Rule 10          F
of the Maharashtra Civil Services (General Conditions of Services) Rules,
1981 (hereinafter referred to as the “1981 Rules”), whereby the person
shall draw minimum of time scale attached to the post to which he is
appointed. It was held that the appellants will be entitled to regular pay
after successful completion of probation, retrospectively from the date          G
of appointment, after deducting the amounts of ‘stipend’ already paid to
them. More significantly, it was declared that the appellants will be entitled
for appointment as ACF from the commencement of their training on
01.02.2014.

                                                                                 H
906                SUPREME COURT REPORTS                        [2023] 2 S.C.R.


A            7. The review application filed by respondent no.1 before the
      Tribunal was dismissed on 16.09.2016 observing that whether the 1965
      Rules were ‘draft’ or not had no bearing upon the outcome of the
      application, as the same were superseded by the 1998 Rules and all
      issues raised in the review application had already been decided in the
      original application.
B
            8. The Government apparently accepted the aforesaid judgment
      and thus passed a Resolution dated 14.08.2018, resolving that successful
      completion of training period would be considered as regular service
      from the date of inception of training for all service purposes. The
      Resolution also provided that the ACF appointed by nomination shall be
C     considered from the initial date of their training and the seniority will be
      considered accordingly. Respondent nos. 4 to 9 herein were not party
      before the Tribunal but filed the writ petition before the High Court, both
      against the appellants as well as against the Government of Maharashtra
      (who had accepted the Tribunal’s judgment). These private respondents
D     claimed that they were appointed as Range Forest Officers in 1987 to
      1990 and were promoted to the post of ACF in 2014-2015. Their grievance
      was that though they were promoted as ACF before the appellants herein,
      they were shown junior to the appellants in the seniority list of ACF.
             9. The case of respondent nos. 4 to 9 was based on the 1998
E     Rules; more specifically Rule 6 read with Rule 3(b) of the said Rules
      and Proviso to Rule 2(B) of the Divisional Forest Officer (in Maharashtra
      Forest Service, Class I) (Recruitment) Rules, 1984 (hereinafter referred
      to as the “1984 Rules”). The said Rules are reproduced hereinbelow:
            Rule 6 of the 1998 Rules
F           “A person appointed to the post by nomination shall be on probation
            for a period of three years including two years of Assistant
            Conservator of Forests training course and 1 year field training as
            decided by Principal Chief Conservator of Forests, Maharashtra
            state, Nagpur” (sic.)

G           ....             ....           ....              ....           ....
            Rule 3 (b) of the 1998 Rules
            “3. Appointment to the post of Assistant Conservator of Forests
            in the Maharashtra Forest Service, Group A (Junior Scale) shall
            be made either –
H           xxxx             xxxx            xxxx             xxxx          xxxx
         ASHOK RAM PARHAD & ORS. v. THE STATE OF                               907
        MAHARASHTRA & ORS. [SANJAY KISHAN KAUL, J.]

          (b) by nomination from amongst candidates who are selected for       A
          the Assistant Conservator of Forests training course, on the basis
          of result of the competitive examination held by the commission
          in accordance with the rules made in this behalf from time to time
          and have successfully completed the training course.”
          ....           ....           ....             ....          ....    B
          Proviso to Rule 2 of 1984 Rules
          “Provided that, in the case of persons directly appointed as
          Assistant Conservator of Forests, the period spent on training at
          the Government Forest Colleges and the period of probation,
          including the extended period of probation, if any, shall not be     C
          counted towards the requisite period of service.”
       10. The significant aspect is the Proviso to Rule 2 of the 1984
Rules, which specifically stipulated that the period spent on training at
the Government Forest College by directly appointed ACF shall not be
counted towards the requisite period of service for purposes of                D
appointment to the cadre of DFO. It is this which is the bedrock of the
plea of the private respondents. The respondents also relied on a judgment
of this Court on R.S. Ajara & Ors. v. State of Gujarat 1 for the
proposition that an administrative resolution cannot take away a right
crystallized under the service rules.                                          E
       11. On the other hand, the appellants’ case before the High Court
was that the Proviso to Rule 2 of 1984 Rules stood negated in view of
the Government Resolution dated 17.02.1997, wherein the condition of
probation period not being considered as period of experience had been
removed. It was submitted that Rule 6 of 1998 Rules specified that             F
persons appointed to the post by nomination shall be on probation for
three years including two years of ACF training and one year of field
training. There was a marked distinction between 1965 Rules and 1998
Rules, as the former separately referred to recruitment and appointment
on probation, whereas the latter referred to appointment on probation
for three years, including the period of training. Relying on the same         G
judgment in the case of R.S. Ajara & Ors.2, it was contended that the
training period prior to the appointment can also be considered for the
purposes of seniority.
1
    (1997) 3 SCC 641.
2
     (supra).                                                                  H
908                SUPREME COURT REPORTS                       [2023] 2 S.C.R.


A              Proceedings before the High Court
             12. The High Court passed an interim order dated 18.04.2019
      restraining the respondent authorities from issuing any promotion order
      based on the judgment of the Tribunal dated 03.02.2016. The above
      order was modified on 23.08.2019 by directing that any promotion made
B     would be subject to the outcome of the writ petition.
             13. The matter was finally adjudicated by the High Court vide the
      impugned judgment dated 23.04.2021. It was opined that respondent
      nos. 4 to 9 would not be affected by the Tribunal’s order to the extent of
      directing payment of salary and the pay scale to the appellants from the
C     date of initiation of the training period, as the respondents’ right would
      only be affected while considering the seniority vis-à-vis promotion to
      the post of DFO. Since Rule 3(b) read with Rule 6 of the 1998 Rules
      shows that the period of training is considered as probation, the direction
      of the Tribunal to pay salary to them as per the pay scale was found to
      be reasonable.
D
             14. However, on the aspect of fixation of seniority, it was opined
      that the case of R.S. Ajara & Ors.3 was on a factual scenario where, in
      the absence of rules regarding fixation of seniority of persons appointed
      to ACF, a Government Resolution was issued suggesting determination
      of seniority of directly recruited ACF in Gujarat State Forest Services
E     Class II by taking into account the period of training. A reference was
      also made to Prafulla Kumar Swain v. Prakash Chandra Misra &
      Ors.,4 where Regulation 12(c) of the Orissa Forest Services Class II
      Recruitment Rules, 1959 provided that appointment to service is to
      commence only after successful completion of training, and hence the
F     seniority would be reckoned from the date of appointment and not date
      of recruitment. No such similar Government Resolution or Regulation
      providing for fixation of seniority existed in the present matter.
            15. The reasoning of the High Court was based on the 1984 Rules
      which were framed under the Proviso to Article 309 of the Constitution
G     and have statutory force. On the other hand, the Government Resolution
      dated 17.02.1997 was issued under Article 162 of the Constitution by
      General Administration Department of Government of Maharashtra and
      hence does not have an overriding effect upon the 1984 Rules. While
      3
          (Supra).
      4
H         1993 Supp (3) SCC 181.
     ASHOK RAM PARHAD & ORS. v. THE STATE OF                                 909
    MAHARASHTRA & ORS. [SANJAY KISHAN KAUL, J.]

the said Resolution provides that probation period shall be considered       A
for purposes of experience, the 1984 Rules require the period spent on
probation and/or training to be excluded and only the period after
appointment order on successful completion of training and/or probation
to be computed for purposes of promotion to the post of DFO.
       16. Even on examination of 1998 Rules, the High Court came to         B
the same conclusion. Even though the said Rules prescribed fixation of
seniority amongst persons appointed by nomination, their seniority is not
fixed unless and until they pass the final examination of the ACF training
course. Thus, Rule 6 of 1998 Rules was found to be in consonance with
Rule 3(b) of the 1998 Rules where the Commission selects candidates
for the ACF training course and only after successful completion of          C
training and passing the competitive final examination, would the
candidates be issued the appointment order of ACF. It was observed
that Rule 7 of 1998 Rules only prescribed the methodology of fixation of
inter se seniority of the ACF appointed by nomination and does not
provide for fixation of seniority between those appointed by promotion       D
and nomination. The High Court thus held that the seniority of persons
selected for the post of ACF by nomination shall be counted from the
date of issuance of appointment order after successful completion of
training qua the person appointed to ACF by promotion.
      Proceedings and Arguments before this Court:                           E
       17. On 30.06.2021 while issuing notice in the SLP, this Court
directed the position, as was prevalent prior to the impugned judgment,
to continue to operate for the time being. On 07.02.2022, it was submitted
that both sets of parties had not been promoted. Leave was granted on
02.02.2023.                                                                  F
       18. On behalf of the appellants, an endeavour was made to trace
out the history of the creation of the post of the ACF which was formerly
a Class II post initially governed by the 1965 Rules. Appointment by
nomination was on probation for two years (extendable) from among
candidates who successfully completed the course of training after           G
selection. Thus, training and probation were different terminologies and
training was not considered as appointment to the post. However, this
was stated to change with the adoption of the 1998 Rules coming into
existence. In terms of Rules 3 and 6 of the 1998 Rules, the period of
training is now considered as period of probation and Rule 6 opens with
the expression “a person appointed to the post by nomination”, which is      H
910               SUPREME COURT REPORTS                        [2023] 2 S.C.R.


A     described under Rule 3(b). The appointment by nomination precedes
      the training and the expression “and have” under Rule 3(b) must not be
      read as “after” to interpret Rule 3(b) as laying down an eligibility
      qualification for appointment, or else the opening part of Rule 6 would
      be rendered otiose. It was thus submitted that the High Court fell into an
      error in coming to the conclusion that the appointment has to be made
B
      only after completion of training course, as this expression was not found
      in Rule 3(b). Reliance was placed on the judgment of this Court in
      Commandant, 11th Battalion, A.P. Special Police (IR) v. B. Shankar
      Naik5 to contend that training which was given cannot be rendered
      purposeless.
C            19. It was next contended that the Government Resolution dated
      17.02.1997 was issued by the General Administrative Department,
      Maharashtra “by order and in the name of the Governor of Maharashtra”,
      which is a deemed rule under Article 309 of the Constitution. The said
      Resolution provides that service during probation should be considered
D     as experience for promotion. It is submitted that an incongruous situation
      has arisen in view of the impugned judgment, where for the purposes of
      salary, the appellants will be considered to be appointed as from date of
      commencement of their training on 01.12.2014, but for selection, the
      date of appointment is to be considered after appointment order issued
      on successful completion of training.
E
             20. The judgment in Prafulla Kumar Swain6 case was sought to
      be distinguished on facts as Regulation 12(c) of the Orissa Forest Services
      Class II Recruitment Rules, 1959 in the said judgment contemplated that
      such service will count only from the date of appointment to the service
      after successful completion of the course of training.
F
             21. Reliance was also sought to be placed on 1981 Rules, more
      specifically Rule 9(14) defining “duty” to include service as probationer
      and a course of instructions or training authorized by or under the orders
      of the Government. It was further submitted that the 2004 Rules did not
      determine the date of appointment by nomination to the post of ACF,
G     and the 1998 Rules also did not offer any guidance to determine the
      inter se seniority between the promotees and direct recruits. It was
      stated that for determination of seniority, Rule 4 of the Maharashtra
      Civil Services (Regulation of Seniority) Rules, 1982 would be applicable.
      5
          (2003) 5 SCC 580.
      6
H         (supra)
        ASHOK RAM PARHAD & ORS. v. THE STATE OF                                 911
       MAHARASHTRA & ORS. [SANJAY KISHAN KAUL, J.]

       22. On the other hand, the respondents defended the impugned             A
judgment to contend that there could be no ambiguity that the period of
training at the Government Forest Colleges and the period of probation
including the extended period of probation, if any, had to be necessarily
excluded for computing the period of service. The appointment orders
had been issued qua the appellants long after the respondents were
                                                                                B
appointed as ACF. Further, Rule 2(a) read with Rules 3 and 7 of the
1998 Rules had clarified that the nominated ACF would be entitled for
an appointment only after completion of training. Training could not be a
mere formality and in Prafulla Kumar Swain7 case, this Court while
applying similar rules held that recruitment is just an initial process and
may lead to eventual appointment in service.                                    C
       23. The respondents further submitted that the endeavour of the
appellants to rely on Government Resolutions dated 25.01.1990,
29.07.1993 and 17.02.1997 and claim that Rule 2 of the 1984 Rules had
no relevance is fallacious as, Government Resolutions cannot override
the Rules. Further, the Resolutions neither speak about the promotion to        D
the post of DFO nor about how the seniority had to be reckoned for
ACF appointed by promotion or by nomination.
          Conclusion:
      24. We have considered the aforesaid rival submissions and
perused the impugned judgment.                                                  E

       25. In service jurisprudence, the service rules are liable to prevail.
There can be Government resolutions being in consonance with or
expounding the rules, but not in conflict with the same. On having set
forth this general proposition, we now examine the scenario of the Rules
as prevalent. If we turn to the statutory Rules framed under Article 309        F
of the Constitution, i.e., the 1984 Rules, Rule 2 refers to the appointment
to the post of the DFO and the same to be made by promotion from
amongst officers of the Maharashtra Forest Service and also by
appointment directly. The Proviso to Rule 2 of the 1984 Rules is
unambiguous and quite clear, i.e., the period spent on training at              G
Government Forest Colleges and other period of probation including
extended period of probation, if any, “shall not be counted towards the
requisite period of service.” Thus, what is envisaged is that the
appointment is different from the recruitment process, which starts with
7
    (supra).                                                                    H
912             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A     the commencement of training. There can be possibilities of a candidate
      not completing the training satisfactorily, thereby resulting in the
      candidate’s removal on probation. Such probation period can also be
      extended to see whether a candidate improves in performance. (Hence,
      even if the Government Resolution dated 25.01.1990 upgraded the post
      of ACF from Class II to Class I, the Proviso to Rule 2 of the 1984 Rules
B
      will continue to hold valid in determining the period of service.)
             26. In the aforesaid context if we turn to the 1998 Rules, more
      specifically Rule 3(b), the stipulation is that in case of a nomination, the
      same is based on the result of the competitive examination held by the
      Commission in accordance with the Rules and the candidate is required
C     to have “successfully completed the training course.” Rule 6 provides
      for probation for a period of three years including two years of ACF
      training course and one year field training, as decided by the Principal
      Chief Conservator of Forests. Thus, even reading of these extant Rules
      makes the process for such direct recruitments quite clear. The Entrance
D     and Training Rules (Revised) for the State Forest Service Officers, 2004
      (hereinafter referred to as the “2004 Rules”) are comprehensive in
      character and set forth how the recruitment process will take place.
            27. We do believe that on behalf of the appellants there is over-
      emphasis on the expression “person appointed to the post by nomination”
E     under Rule 6 of the 1998 Rules, without appreciating the context in which
      such expression has been used. In contending that the interpretation
      given by the High Court would amount to making the opening part of
      Rule 6 otiose, what is lost sight of is that were the appellants’ plea to be
      accepted, it would amount to making the Proviso to Rule 2 of the 1984
      Rules otiose. The Government resolutions issued by the Administrative
F     Department cannot have the status of a statutory rule although such
      resolutions may have their own effect.
             28. It appears to us that the High Court’s view is the correct
      view. The resolutions have been passed in the context that the person
      who successfully completes the training effectively gets the monetary
G     compensation for his training period and is not deprived of the same.
      This cannot amount to giving seniority from the date of initial recruitment
      process to determine inter se seniority, when the Proviso to Rule 2 of
      the 1984 Rules makes the date of appointment for direct recruits clear.
      This is also in the background that while the direct appointees have no
H
        ASHOK RAM PARHAD & ORS. v. THE STATE OF                                 913
       MAHARASHTRA & ORS. [SANJAY KISHAN KAUL, J.]

experience in the field having been freshly recruited, the promotees have       A
been doing the task.
       29. We fail to appreciate how the judgment in Prafulla Kumar
Swain8 case can be distinguished in this behalf merely by reason of the
regulation therein containing the expression “only”. It is not necessary
to refer to factual scenarios of different judgments and different rules or     B
general definition of what would amount to be on “duty”, when the rule
in question is quite clear. We say so even in the context of the judgment
in R.S. Ajara & Ors.9 case as in any service, whether on the issue of
appointment or promotion, it is what the rule says, which will matter.
One cannot derive general principles to decide such issues. We do
appreciate that there can be scenarios where the rule specifically states       C
to the contra. But, in the present case, the very factum of Proviso to
Rule 2 of the 1984 Rules being inserted in the rule has to be assigned a
meaning, as otherwise, it would imply that the Proviso has become otiose.
It cannot be said that the Proviso is not to be read in the context of the
aspect of promotion.                                                            D
      30. We also find that Rules 3B and 6 of the 1988 Rules also leave
no ambiguity in this behalf and in fact read in consonance and the period
of probation has to be necessarily excluded from period of service. As
already stated, the grant of monetary benefit is a different aspect.
      31. On having come to the conclusion that the Government                  E
resolutions cannot override statutory rules, and the resolutions neither
speaking about promotion to the post of DFO nor about seniority
conclusively, the Proviso would operate with full force.
     32. We are thus of the clear view that the applicable Rules leave
no ambiguity in the matter and must prevail.                                    F
      33. The result of the aforesaid is that the appeal is dismissed
leaving the parties to bear their own costs.

Divya Pandey                                                Appeal dismissed.
(Assisted by : Roopanshi Virang, LCRA)                                          G




8
    (supra).
9
    (supra).
                                                                                H