BINDESHWARI RAMversusSTATE OF BIHAR & ORS.

                      BINDESHWARI RAM                                      A
                              v.
                    STATE OF BIHAR & ORS.

                       SEPTEMBER 19, 1989
                                                                           B
         [M.N. VENKATACHALIAH, N.D. OJHA AND
                    J.S. VERMA, JJ.]

     Bihar Forest Service Rules, 1953: Rule 35(iii)-Seniority-Fixa-
tion of inter-se seniority among Assistant Conservators of Forest-
Determining Factor-lnter-se seniority held as Ranger.
                                                                           c
      Administrative Law: Statutory rule-Cannot be modified or
altered by executive instructions.

      The appellant and respondents 7 to 13 are Asistant Conservators
of Forest and are governed by the Bihar Forest Service Rules, 1953. As
                                                                           D
per Rule 3 thereof appointment to the said post is made either by direct
recruitment or by promotion of selected Rangers.

       The appellant and respondents 7 to 12 were promotees and
respondent 13 was a direct recruit. Though the appellant was promoted
subsequent to the promotion 'of respondents 7 to 12, his appointment
                                                                           E
was made retrospective. The appellant was the last to be confirmed as
Assistant Conservator of Forest. As a Ranger also the appellant was
appointed much later to respondents 7 to 12. On the basis of confirma-
tion seniority has been determined. The appellant challenged the
seniority of respondents 7 to 13 over him, b)' way of a Writ Petition in
the. High Court. He relied on a memorandnm to the Cabinet which
                                                                           F
contained a note that if the appellant was found fit for promotion his
place would be above 10 general category officers and since the
memorandum was approved by the Cabinet his name in the. seniority
list should have been placed above those officers. The respondents
resisted the claim stating that the Cabinet had not approved the
memorandum in its entirety. The High Court dismissed the Writ Peti-
                                                                           G
tion and this appeal, by special leave, is against the said judgment.

      The contentions raised before the High Court were reiterated in
this appeal.

      Dismissing the appeal,
                                                                           1:1

                                  201
      202         SUPREME COURT REPORTS                [1989] Supp. 1 S.C.R.

            HELD: l. l. Rule 35 of the Bihar Forest Service Rules, 1953
      specifically deals with seniority. In the instant case, Clause (i) of the
      proviso is not attracted. Even Clause (ii) is not attracted inasmuch as
      respondent No. 13' even though was appointed by direct recruitment,.
      was not appointed "at the same time" as the appellant and responde11ts:1
      to 12. It is Clause (iii) which is relevant Jor the determination of.the
B     seniority inter-se of the appellant and respondents 7 to 12. On a plain
      reading of this Clause it is apparent that on substantive appointment of
      Rangers to the service by promotion, their seniority inter-se in the
      service is to be governed by "their senior.ity inter-se held as Rangers".
      The appellant as well as respondents 7 to 12 have already been con-
      firmed as Assistant Conservator of Forest and meet the requirement of
       "substantive appointment to the service by promotion". In order to
c     determine their inter-se seniority as Assistant Conservator of Forest,
       therefore, their seniority inter-se as Rangers shall be the determining
       factor. Respondents '7to 12 had been.appointed as Rangers mudl·beforetlte
       date on which the appellant was appointed as a Ranger. Hence the claim
       of seniority as made by the appellant has no substance. [204D; 205B-E]
I)
            I.2. It is settled law that the provisions of statutory rules cannot
      be modified or altered by executive instructions, and it is only in the
      absence of statutory rules that executive instructions have relevance. As
      such even if for the sake of argument it may be accepted that on account
      of the memorandum to the Cabinet or any other executive Instruction
E     the appellant was to be given seniority as claimed by him, it could not be
      done, as in case of a conflict, the statutory provisions contained in
      proviso (iii) of Rule 35 of the Rules shall prevail. [205E-F]

           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3982
      ofl989.
F
           From the Judgment and Order dated 20.4.1988 of the Bihar High
      Court in C.W.J.C. No. 1749 of 1988.                              ·

             B.R.L. Iyengar, Govind Mukhoty, K.K. Gupta and Hari Narain
       0 jha for the Appellant.

           Anil Dev Singh, A.K. Sen, D. Goburdhan, T.C. Sharma, Mrs.
       Sushma Suri and. D.P. Mukherjee for the Respondents.

             The Judgment of the Court was delivered by

JiI          OJHA, J. Specialleave granted.
           BINDESHWARI RAM v. -STATE OF BIHAR {OJHA, J.]              203

      This appeal has been preferred against the judgment dated 20th         A
April 1988 of the Patna High Court dismissing a writ petition filed by
the appellant challenging a seniority list. Necessary facts .in brief are
these:

       The appellant and respondents 7 to 13 are Assistant Conser-           B
vators of Forest in Bihar Forest Service. Their service conditions are
governed by the Bihar Forest Service Rules, 1953 (hereinafer referred
to as the Rules) made by the Government of Bihar in exercise of the
powers conferred on it by the proviso· to Article 309 of the Constitu-
tion of India. According to Rule 2(vii) of the Rules "the service"
 means the Bihar Forest Ser¥ice. Rule 3 provids that the appointments
of the service shall ordinarily be made by (a) direct recruitment in         c
accordance with the Rules in Part II of these Rules by competitive
examination to be held by the Commission; and (b) by promotion in
accordance with the Rules contained in Part V of selected rangers
specified therein. The appellant and respondents 7 to 12 were selected
rangers and were appointed as Assistant Conservator of Forest by
                                                                             D
promotion under Rule -3-(b). As is apparent from the counter affidavit
on behalf of respndents 8 to 10, respondent No. 11 was promoted as
Assistant Conservator of Forest on 21st December 1976, respondent
Nos. 7, 8, 9 & 12 on 29th November 1977 and respondent No. 10 on
15th December 1978. In so far as the appellant is concerned, even
though, he was appointed subsequently, his appointment was made
                                                                             E
effective retrospective from 29th November 1977. Respondent No. 13,
on the other hand, as is apparent from the seniority list which was
challenged by the appellant, was appointed under Rule 3(a) of the
Rule by direct recruitment on 3rd May 1978. The counter affidavit
further indicates that respondent No. 13 was confirmed as Assistant
Conservator of Forest on 30th June 1983. Respondents 7 to 11 were
                                                                             F
confirmed on 30th August 1983 and re$pondent No. 12 was confirmed
on 5th August 1983 whereas the appellant was confirmed on 31st De-
cember 1986. In the said counter affidavit, the dates of appointment as
rangers of respondents 11, 7, 8, 9, 10, 12 and the appellant respectively
are- stated as 3rd April
                    . -
                         1958, 4th -April
                                     -
                                          1958, 5th April 1958, 9th
                                                                 . /
                                                                     April
1958, 7th April 1959, !St April 1966 and 2nd April 1967 ..Even though a
                                                                             G
rejoinder has_ been filed by the. appellant, the correctness of the
aforesaid facts has not been denied therein nor has it been urged by the
learned counsel for the appellant before us that these facts are inaccu-
rate. It is on the basis of these facts, therefore, that the respective
submissions made by learned counsel for the parties have to be
considered.                                                                  H
     204         SUPREME COURT REPORTS                [1989] Supp. 1 S.C.R;

A          It has been urged by learned counsel for the appellant mainly
     relying on a memorandum to the Cabinet dated 24th November 1977
     which contains a note that if the appellant was found fit for promotion
     by the selection committee, his place will be above 10 general category
     rank officers mentioned therein, that in the seniority list the name of
     the appellant should have been placed above those officers. According
a    to the learned counsel for the appellant the memorandum was
     approved by the Cabinet on the same date and yet in the impugned
     seniority list the aforesaid direction was not carried out. For the re-
     spondents, it was urged that the Cabinet had not approved the
     memorandum in its enti~ety. In our opinion, however, it is not neces-
     sary to go into this controversy. It was on the above premis.e that the
C    writ petition challenging the seniority list was filed by the appellant in
     the High Court and according to his learned counsel, the High Court
     committed an error in dismissing the same.

        Having heard learned counsel for the parties, we find it difficult
  to agree with the submission made by the learned counsel for the
0 appellant. As seen above, the service conditions of Assistant Con-
  servators of Forest who are members of the Bihar Forest Service, are
  governed by the Rules. Rule 35 which specifically deals with the mat-
  ter of seniority reads as hereunder:

                 "35. Seniority of officers appointed to the Service shall be
E                determined with reference to the date of their substantive
                 appointment to the Service.

                 Provided that-

                 (i) in the case of members of the Service appointed by
IF               direct recruitment at the same time, their seniority inter-se
                 shall be in the order of merit in which their names are
                 placed in the list of successful candidates at the Final
                 Examination of the Indian Forest College, Dehra Dun;

                 (ii) in case where appointments are made to the Service
G                both by direct recruitment and promotion of selected
                 Rangers at the same time, the pormoted members of the
                 service shall be senior to the members directly recruited;
                 and

                 (iii) the seniority inter-se of Rangers on substantive
H                appointment to the Service by promotion at the same time
           BINDESHWARI RAM v. STAIB OF BIHAR [OJHA, J.J               205

            shall be their seniority inter-se held as Rangers."              A

      In the instant case we are not concerned with Clause (i) of the
proviso. Even Clause (ii) is not attracted inasmuch as respondent No.
 13 even though was appointed by direct recruitment, was not
appointed "at the same time" as the appellant and respondents 7 to 12,       B
as already indicated above. That is clause (iii) of the proviso, there-
fore, which is relevant for the determination of the seniority inter-se of
the appellant and respondents 7 to 12. On a plain reading of this
Clause it is apparent that on substantive appointment of rangers to the
service by promotion, their seniority inter-se in the service is to be
governed by "their Seniority" inter-se held as rangers". As seen above,
the appellant as well as respondents 7 to 12 have already been con-          c
firmed as Assistant Conservator of Forest and meet the requirement of
"substantive appointment to the service by promotion". In order to
determine their inter-se seniority as Assistant Conservator of Forest,
therefore, their seniority inter-se held as rangers shall be the determin-
ing factor. The respective dates of appointment as rangers of the            D
appellant and respondents 7 to 12 have already been given above. Its
perusal indicates that respondents 7 to 12 had been appointed as
rangers much before 2nd April 1967 which was the date on which the
appellant was appointed as a ranger. The daies of appointment and
confirmation of respondent No. 13 who is a direct recruit, have been
noted earlier. In this view of the matter the claim of seniority as made
                                                                             E
by the appellant has no substance.

      It is settled law that the provisions of statutory rules cannot be
modified or altered by executive instructions and it is only in the
absence of statutory rules that executive instructions have relevance.
As such even if for the sake of argument it may be accepted that on
                                                                             F
account of the memorandum to the Cabinet or any other executive
instruction the appellant was to be given seniority as claimed by him, it
could not be done as in case of a conflict the statutory provisions
contained in this behalf in proviso (iii) of Rule ,35 of the Rules shall
prevail. In the result this appeal fails and is dismissed but in the
circumstances of the case there shall be no order as to costs.
                                                                             G
G.N.                                                   Appeal dismissed.