Supreme Court of India
OMKAR SINHA & ANRversusSAHADAT KHAN & ORS
- Citation
- 2022 INSC 491
- Decided
- 29 April 2022
- Disposal
- Appeal(s) allowed
- Bench
- K M JOSEPH
Holding
The 1977 circular was revoked only by the Governor’s order dated 11 June 2012; the 2009 communications were not valid Government orders and therefore did not withdraw the circular.
Summary
The case concerned whether a 1977 circular issued by the Governor of undivided Madhya Pradesh, which granted entry into Ranger training for Forest Guard trainees who topped their training, remained in force after the creation of Chhattisgarh in 2000. The State of Chhattisgarh issued several communications in 2009 and 2012, the first two of which the High Court held had withdrawn the 1977 circular. The appellants argued that only the Governor’s order dated 11 June 2012, which expressly revoked the circular, could withdraw it, because a valid government order must be expressed in the Governor’s name under Article 166. The Supreme Court held that the 2009 communications were merely internal correspondences and not orders of the Governor, and therefore did not revoke the 1977 circular; the revocation occurred only on 11 June 2012. Consequently, the Division Bench’s reasoning was unsustainable and the appeals were allowed, setting aside the High Court’s judgment.
Issues considered
- Whether the circular dated 17 October 1977 was lawfully withdrawn by the communication dated 14 May 2009 or 14 December 2009, or only by the Governor’s order dated 11 June 2012.
- Whether a communication not expressed in the Governor’s name constitutes a valid Government order under Article 166 of the Constitution.
- Whether the State could vary the method of promotion under the Forest Service Recruitment Rules by issuing such an order.
- Whether the appellants were entitled to Ranger/Forester training based on the 1977 circular.
Legislation cited
- M.P. Class III (Non‑Ministl.) Forest Service Recruitment Rules, 1967s. Rule 14(1), s. Rule 6(4)
- State Reorganisation Act, 2000
Subjects
Article 166government ordercircular revocationstate reorganisationforest service recruitmentpromotionadministrative lawpublic service
Judgment
[2022] 16 S.C.R. 1029 1029
OMKAR SINHA & ANR. A
V.
SAHADAT KHAN & ORS.
(Civil Appeal No. 3504 of 2022)
APRIL 29, 2022 B
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Constitution of India: Art. 166 – Conduct of business of the
Government of a State – Circular order dated 17.10.1997 in
undivided State of M.P, granted entry in the Ranger’s training to
C
the candidates who stood first in the Forest Guard training schools
without entrance – Subsequent to enactment of State Reorganisation
Act, 2000, State of Chhattisgarh was formed – However, the circular
of the undivided State of M.P continued – Appellant No. 1, who
was undergoing training as Forest Guard stood first in the training
and felt entitled to be selected for training as Forester, on the basis D
of the order dated 17.10.1977 – Thereafter, writ petition filed seeking
direction that the appellant No. 1 be sent for Forester training –
Thereafter, decision taken to send the appellant no 1 for Ranger’s
training – Challenge to, by the respondent no.1 contending that the
circular order dated 17.10.1997 stood withdrawn by circular order
E
dated 14.12.2009 issued by Govt. of Chhattisgarh which provides
two additional increments to the trainees who stood first in the Forest
Guard training instead of the earlier incentive of sending them for
training as Ranger/Forester – Dismissed by the High Court –
Division Bench set aside the said order on the ground that circular
dated 17.10.1997 was withdrawn by order dated 14.05.2009 – In F
appeal before this Court, case of the appellant that the earlier
circular made by Governor is withdrawn only on 11.06.2012 – Held:
Judgment of the Division Bench cannot be sustained –
Communication dated 14.12.2009 is not an order of the Governor
or expressed to be made in his name – This communication does not
G
bear the insignia of a Government Order – Whereas, the
communication dated 11.06.2012 recalling the appellant from the
Ranger’s Training contained two specific signs that it is expressly
made in the name of the governor and that it specifically revoked
H
1029
1030 SUPREME COURT REPORTS [2022] 16 S.C.R.
A the communication dated 17.10.1977 – M.P. Class III (Non–Minstl.)
Forest Service Recruitment Rules, 1967 – r. 14(1) & r. 6(4).
Bachhittar Singh v. State of Punjab and Another AIR
1963 SC 395: [1962] Suppl. SCR 713; K.S.B. Ali v.
State of Andhra Pradesh and Others (2018) 11 SCC
B 277: [2017] 12 SCR 698; Dyna Technologies Pvt. Ltd.
v. Crompton Greaves Limited (2019) 20 SCC 1 –
referred to.
Case Law Reference
[2017] 12 SCR 698 referred to Para 11
C
(2019) 20 SCC 1 referred to Para 11
[1962] Suppl. SCR 713 referred to Para 14
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3504
of 2022.
D
From the Judgment and Order dated 13.01.2015 of the High Court
of Chhattisgarh at Bilaspur in Writ Appeal No.02 of 2015.
With
Civil Appeal No. 3505 of 2022
E Ravindra Shrivastava, Sr. Adv., Navin Prakash, Ms. Garima Tiwari,
Anshuman Shrivastava, Abhijeet Shrivastava, Ms. Harneet Kaur Khanuja,
Ms. Sukriti Chauhan, Arpit Jain, Abhishek Sharma, Advs. for the
Appellants.
Sourav Roy, Dy. AG, Vikrant Singh Bais, Rakesh S., Mahesh
F Kumar, Kaushal Sharma, Srinivasa Kumar Bogisam, Ms. Devika
Kahanna, Ms. V. D. Khanna, M/s VMZ Chamber, Niraj Sharma, Yogesh
Tiwari, Sumit K. Sharma, Ms. Mahima Sharma, Ms. Vaishnavi Paliwal,
Advs. for the Respondents.
The Judgment of the Court was delivered by
G
K. M. JOSEPH, J.
1. Leave granted.
2. Both the appeals raise common questions. We take civil appeal
arising from SLP (C)No. 13668 of 2015 as the leading case.
H
OMKAR SINHA & ANR. v. SAHADAT KHAN & ORS. 1031
[K. M. JOSEPH, J.]
3. Respondent No. 1 was appointed as a Forest Guard on A
03.05.1980. He completed his training as Forest Guard in the year 1987.
Appellant No. 1 came to be appointed as Forest Guard on 15.11.2007.
The second appellant was also appointed as Forest Guard on the same
day. The appellants were originally part of undivided State of Madhya
Pradesh. Upon the enactment of the State Reorganisation Act, 2000, a
B
new State viz., State of Chhattisgarh was born on 01.11.2000. While
the State of Madhya Pradesh was undivided, State of Madhya Pradesh,
on 17.10.1977 issued the following circular:
“Copy letter No. 13/10474/1977/1/x dated 17.10.77 from
the Government of Madhya Pradesh, Department of Forest,
Bhopal to the Principal Forest Conservator, Madhya Pradesh, C
Bhopal.
Sub: - For giving entry in the Ranger’s Training to the
candidate who stood first in the Forest Guard Training School
without entrance examination as well as for fixation of height
of 163 c.m. D
Ref: - Your memo/copy/153/5737 dated 18.7.77.
The State Government grants approval for
keeping the height of 163 cm (one hundred sixty three c.m.)
for the entire forest schools as well as Forest Guard’s E
training schools and those Forest Guard who passes the
examination of the Training schools in first class is granted
approval for sending in the Ranger’s Training session without
entrance examination.
By the name and order of the Governor of F
Madhya Pradesh.
Sd/-
4. Based on a proposed strike, a letter dated 14.05.2009 was issued
by the Secretary to the Principal Chief Conservator of Forests:
CHHATTISGARH ADMINISTRATION G
FOREST DEPARTMENT
MANTRALAYA, DAU KALYAN SINGH BHAWAN,
RAIPUR
no./f 1-18/2007/10-1/Forest Raipur, Dt.14.05.2009 H
1032 SUPREME COURT REPORTS [2022] 16 S.C.R.
A To
Principal Chief Forest Conservator,
Chhattisgarh, Raipur.
Sub: - Information regarding indefinite strike w.e.f.18.5.2009
B for 21 point demands by the Chhattisgarh Forest Employees
Sangh, Raipur (the provision of promotion to the candidates
standing first in the training of Ranger and Forest Guard.
(demand No. 13).
It has been decided by the State Government
C that the proposal regarding grant of 02 additional increments
to the candidates who stood first and 01 additional increment
to the candidates who stood second in the training of Forest
Guard/Ranger be approved and the previous practice be
rescinded. In this regard, please submit the necessary
proposal at the earliest.
D
Sd/-
(Kaushlendra Singh)
Secretary
E Chhattisgarh Administration, Forest Department
No.F-1-18/2008/10-1 Raipur, Dated 05/2009
Copy to:
F
Shri Faiyaj Ahmad Khan, State President,
Chhattisgarh Forest Employees Sangh, Forest Colony
Complex, Raipur-for information.
Sd/-
G Secretary
Chhattisgarh Administration, Forest Department
5. Next, we must notice communication dated 14.12.2009. It reads:
H
OMKAR SINHA & ANR. v. SAHADAT KHAN & ORS. 1033
[K. M. JOSEPH, J.]
OFFICE OF THE PRINCIPAL CHIEF FOREST A
CONSERVATOR
CHHATTISGARH ARANYA BHAWAN, MEDICAL
COLLEGE
ROAD, RAIPUR
B
BRANCH- ADMINISTRATION / NON-GAZETTED
No./Admn.Non-Gazetted.1/2009-7579 Raipur,Dt.14/12/2009
To
Chief Forest Conservator
C
(Ma. San Vi/Su.Pau.)
Chhattisgarh, Raipur
Sub: -Sending Forest Ranger training to the Forest Guards
stood first in the Forest Guard Training School.
D
Ref.: Your letter No./Ma.Sun.Vi./Su./Pau./1133 dated
09.12.2009
By the letter under reference on the captioned
subject, Shrilal Netam, Forest Guard has been mentioned for
sending in the Forest Ranger Training. It is written in this E
regard that by considering on the demand No. 13 out of 21
point demands of the Chhattisgarh Forest Employees Sangh
by the Chhattisgarh Administration, Forest Department,
decision has been taken to grant 02 additional increments to
the trainees who stood first in the Forest Guard/Ranger training
and 01 additional increment to the trainees who stood second F
in the said training. Therefore, there is no need to send the
candidate who stood first in the Forest Guard training for the
training of the Rangers. As per direction of the Chhattisgarh
Government, Forest Department, the trainees who stood first
is entitled for only 02 additional increments. Copy of the letter G
No.F-1-18/2007/10-1 (part-13) of the Chhattisgarh
Administration, Forest Department; Mantralaya Raipur is
enclosed.
H
1034 SUPREME COURT REPORTS [2022] 16 S.C.R.
A Enclosure: - As aforesaid
sd/- illegible
14.12.09
Chief Forest Conservator (Admn. Non-Gazetted)
B Chhattisgarh (Raipur)”
6. In the meantime, it would appear that appellant No. 1, who was
undergoing training as Forest Guard stood first in the training. He felt
entitled to be selected for training as Forester, on the basis of the order
dated 17.10.1977. A writ petition came to be filed as WP 45/2010 seeking
C direction that the appellant No. 1 be sent for Forester training. Judgment
was rendered on 11.01.2012 noting that there was some proposal to
abolish the practice of sending the Forest Guard who stood first; noting
that this is a policy matter, a decision was directed to be taken on the
said representation.
D There was correspondence dated 23.04.2012, which reads as
follows:
GOVERNMENT OF CHHATTISGARH
FOREST DEPARTMENT
E DAU KALYAN SINGH BHAWAN, MANTRALAYA,
RAIPUR
NO./1266/539/2012/10-1/FOREST RAIPU Dt. 23.4.2012
To
F Principal Chief Forest Conservator,
Chhattisgarh, Raipur
Sub: - WP (C)No. 45/2012 Shri Omkar Sinha, Forest Guard
Vs. State of Chhattisgarh and Ors.
Ref: - Your letter No. / Admn. Non-gazetted.1/Nyaya./1380
G dated 02.03.2012.
Kindly peruse the captioned letter under
reference. In this regard it is relevant to mention that after
receipt of the amendment proposal from the General
Administration Department in Three Class (non-clerical)
H
OMKAR SINHA & ANR. v. SAHADAT KHAN & ORS. 1035
[K. M. JOSEPH, J.]
Forest Service Recruitment Rules the same has been sent A
to the Law Department for vetting/modification. Till the
time the new recruitment rule is not framed and enforced,
the action may kindly be taken as per the existing recruitment
rules.
2. It is relevant to mention that in the case of Shri Sinha, the B
Hon’ble High Court vide its order dated 11.01.2012 has
directed to take decision within 04 months, which shall be
expired / lapsed on 11.05.2012.
3. As per direction, in the aforesaid case the action may be
taken according to the existing recruitment rules. C
Sd/-
(M.L. Tamrakar)
Under Secretary
Chhattisgarh Government, Forest Department D
No./ /539/2012/10-1/Forest Raipur, Dt. / / 2012
Copy to:
Shri Omkar Sinha, Forest Guard, Singpur
Enclave Dhamtari, Dhamtari Forest Division, Dhamtari for E
information.
Sd/-
Under Secretary
Chhattisgarh Government, Forest Department F
7. We have referred to correspondence dated 23.04.2012. Then
there is order dated 11.06.2012. It reads:
CHHATTISGARH ADMINISTRATION
FOREST DEPARTMENT
G
MANTRALAYA, DAU KALYAN SINGH BHAWAN,
RAIPUR
No./1783/2900/2012/10-1/Forest Raipur, Dt.11/6/2012
H
1036 SUPREME COURT REPORTS [2022] 16 S.C.R.
A To
Principal Chief Forest Conservator,
Chhattisgarh, Raipur.
Sub: - For immediate recalling of Shri Onkar Sinha, Forest
B Guard from the Ranger’s training.
Ref: - Your letter No./Admn./Non-Gazetted/2012/3154,
dated 01.05.2012.
Kindly peruse the captioned letter under
reference.
C
2. The order No.13/10474/1977/1/X dated 17.10.1977 of
the Government of Madhya Pradesh, Forest Department is
hereby revoked.
3. In respect of recalling Shri Onkar Sinha, Forest Guard
from the training of the Ranger, may kindly take necessary
D
action as per rule.
By the name and order of the Governor of Chhattisgarh
Sd/-
(M.L. Tamrakar)
E
Under Secretary
Government of Chhattisgarh, Forest Department
No. 1784/2900/2012/10-1/Forest Raipur,Dated 11.6.2012
Copy to:
F
State president, Chhattisgarh Forest Employees
Sangh, Raipur, Head Office, Forest Colony Complex, Pandri,
Raipur for information in reference to his letter No. 24 dated
02.06.2012.
G Sd/-
Under Secretary
Government of Chhattisgarh, Forest Department”
8. Since the second appellant was not sent for training, he filed
WP 4076 of 2012 in which an order similar to the order passed in the
H
OMKAR SINHA & ANR. v. SAHADAT KHAN & ORS. 1037
[K. M. JOSEPH, J.]
case of the first appellant came to be passed on 03.10.2012. After A
reconsideration of the entire matter, it is found by order dated 22.1.2013
by Under Secretary that it was decided to send the appellants for training
and that there was no contempt involved.
9. The Chief Conservator of Forest sent communication to the
Director on 01.12.2013 asking for list of Forest Guards who stood first B
during that period 14.05.2009 till the date of session.
The first respondent filed WP (S)No. 1100/2013 challenging the
orders dated 22.01.2013 and 01.12.2013 on the basis that circular dated
17.10.1977 stood withdrawn by circular dated 14.12.2009 and therefore,
no Forest Guard could be sent out of turn for training as Forester after C
withdrawal of the circular dated 17.10.1977. In the meantime, on
17.02.2014, the appellants completed their training as Forester. The
learned Single Judge dismissed the Writ Petition No. 1100 /2013 out of
which one appeal arises and also Writ Petition (S) No. 188/2012 which
is the subject matter of the other appeal. Writ appeals came to be filed
by the aggrieved writ petitioners in both the cases viz., Writ Appeal No. D
1/2015 and Writ Appeal No. 2 /2015. By the impugned judgment, the
Division Bench set aside the judgment of the learned Single Judge.
Findings of the Division Bench to be noted are as follows:
“14. The State Respondent did not act fairly, reasonably
and responsibly in the matter. A decision had already been E
taken at the highest level of the Government on 14.5.2009.
It was understood in clear terms by the Principal Chief
Conservator of Forest who issued consequential orders on
14.12.2009. The Under Secretary then issued an order at
variance. There is no pleading in the counter-affidavit of F
the State that the Secretary had allowed his own order dated
14.5.2009 to be recalled much less did the order of the Under
Secretary make any reference to the order of the Secretary.
An advantage was taken of the order of the Court in Writ
Petition (S) 45 of 2012 filed by the private Respondent to
create an aura of fear that the wrath of the Court would be G
invited in contempt jurisdiction rather than to have decided
the representation in accordance with law. The respondent
authorities in the counter affidavit virtually challenge their
own order dated 14.5.2009 which is clearly impermissible
in the law. The Sub-divisional Forest Officer who has sworn H
1038 SUPREME COURT REPORTS [2022] 16 S.C.R.
A the counter affidavit virtually challenges the order of the
Secretary, Department of Forests of the State government
dated 14.5.2009 which is impermissible as held in (1988) 3
SCC 570 (Commr. of Commercial Taxes (Asstt.) v.
Dharmendra Trading Co) observing as follows: -
B “5. …… We totally fail to see how an Assistant
Commissioner or Deputy Commissioner of Sales Tax
who are functionaries of a State can say that a
concession granted by the State itself was beyond
the powers of the State or how the State can say so
either……….”
C
15. The standards by which the Government will act has to
be very different from the manner in which a private
authority or individual will act. The order dated 14.5.2009
did not emanate in the void. It was the result of a proper
thought process in view of certain demands raised by the
D Forest Workers Union who had threatened to go on strike.
We were informed at the bar during hearing by the parties
that eventually the strike was called off because of the
assurances given by the Government.
16. It is apparent that this decision was taken after
E consultation with the Union or the Government suo-moto
took the decision to avoid the possibility of any strike. The
counter-affidavit confronts the Court with a conclusion
rather than informing that whether any negotiations were
held with the Union or not. Under what circumstances the
F decision dated 14.5.2009 was taken. The question that arises
for our consideration is that if the State Government in the
Department of Forest at the highest level gave assurance
to its employees because of which they called off their strike,
was it only a guise by the officials of the State to fraudulently
have the strike called off without any intention to implement
G their decision and assurance given. If that was so, it was a
fraud on the Constitution, impermissible under Article 14 of
the Constitution. Conversely, if the State took a conscious
decision to do away with the circular dated 17.10.1977 in
view of the strike call given by the Union and thereby
H prevented the strike, the State certainly stood to gain an
OMKAR SINHA & ANR. v. SAHADAT KHAN & ORS. 1039
[K. M. JOSEPH, J.]
advantage and is bound to stick by its promise. The A
authorities of the State Government cannot vacillate in
decision making according to their convenience seeking
shoulders of the Court when in fact, the Court never gave
them its shoulder. We do not approve of the conduct of the
State authorities in reading more into the order in Writ Petition
B
(S)No. 45 of 2012 than it actually contained.
17. In (2013) 3 SCC 559 (State of Bihar v. Sunny Prakash)
the challenge was to the direction of the High Court in a
Public Interest Litigation to ensure that the commitment
given by the State Government to the Bihar State University
and College Employees Federation is honoured and C
implemented. The strike was called off following an
agreement after the State Government issued a letter for
implementation of the agreement. Later the State
government sought to rescile that it was not a decision taken
according to Rules to Executive business. It was held as D
follows:
“22. Inasmuch as all the persons who were competent
to represent were the parties to the said agreement
referred to above and after making such commitment
by the State Government, as rightly observed by the E
High Court, we are also of the view that the same
has to be honoured without any exception. By the
impugned order, the High Court has not only directed
the State Government to implement the commitment
given by it having been reduced into writing on 18-7-
2007, honoured by the State Government itself in F
subsequent letters/correspondences but also directed
the Federation to call off the strike immediately in
the interest of the student community.”
10. We have heard the learned senior counsel appearing for the
appellants as also the learned counsel appearing for the respondents/ G
writ petitioners and the learned counsel for the State.
11. Learned senior counsel for the appellants would point out that
the High Court was wrong in deciding that by communication dated
14.05.2009, the Government circular dated 17.10.1977 was withdrawn.
H
1040 SUPREME COURT REPORTS [2022] 16 S.C.R.
A Actually, in law, the earlier circular made by Governor is withdrawn only
on 11.06.2012. He would rely on Bachhittar Singh v. State of Punjab
and Another AIR 1963 SC 395:
“8. What we have now to consider is the effect of the note
recorded by the Revenue Minister of PEPSU upon the file.
B We will assume for the purpose of this case that it is an
order. Even so, the question is whether it can be regarded
as the order of the State Government which alone, as
admitted by the appellant, was competent to hear and decide
an appeal from the order of the Revenue Secretary. Article
166(1) of the Constitution requires that all executive action
C of the Government of a State shall be expressed in the name
of the Governor. Clause (2) of Article 166 provides for the
authentication of orders and other instruments made and
executed in the name of the Governor. Clause (3) of that
article enables the Governor to make rules for the more
D convenient transaction of the business of the Government
and for the allocation among the Ministers of the said
business. What the appellant calls an order of the State
Government is admittedly not expressed to be in the name
of the Governor. But with that point we shall deal later.
What we must first ascertain is whether the order of the
E Revenue Minister is an order of the State Government i.e.
of the Governor. In this connection we may refer to Rule
25 of the Rules of Business of the Government of PEPSU
which reads thus:
“Except as otherwise provided by any other Rule,
F cases shall ordinarily be disposed of by or under
the authority of the Minister in charge who may
by means of standing orders give such directions
as he thinks fit for the disposal of cases in the
Department. Copies of such standing orders shall
G be sent to the Rajpramukh and the Chief
Minister.”
According to learned counsel for the appellant his appeal
pertains to the department which was in charge of the
Revenue Minister and, therefore, he could deal with it. His
H decision and order would, according to him, be the decision
OMKAR SINHA & ANR. v. SAHADAT KHAN & ORS. 1041
[K. M. JOSEPH, J.]
and order of the State Government. On behalf of the State A
reliance was, however, placed on Rule 34 which required
certain classes of cases to be submitted to the Rajpramukh
and the Chief Minister before the issue of orders. But it
was conceded during the course of the argument that a
case of the kind before us does not fall within that rule. No
B
other provision bearing on the point having been brought to
our notice we would, therefore, hold that the Revenue
Minister could make an order on behalf of the State
Government.
9. The question, therefore, is whether he did in fact make
such an order. Merely writing something on the file does C
not amount to an order. Before something amounts to an
order of the State Government two things are necessary.
The order has to be expressed in the name of the Governor
as required by clause (1) of Article 166 and then it has to be
communicated. As already indicated, no formal order D
modifying the decision of the Revenue Secretary was ever
made. Until such an order is drawn up the State Government
cannot, in our opinion, be regarded as bound by what was
stated in the file. As long as the matter rested with him the
Revenue Minister could well score out his remarks or
minutes on the file and write fresh ones. E
This judgment, he would point out was followed in K.S.B. Ali v.
State of Andhra Pradesh and Others (2018) 11 SCC 277 and Dyna
Technologies Pvt. Ltd. v. Crompton Greaves Limited (2019) 20 SCC
1.
F
12. Learned counsel for the respondents/writ petitioners in the
High Court, however, take us through the order of the Division Bench
and support the order. He would submit that statutory rules were in
place in the undivided State of Madhya Pradesh. What is more, statutory
rules have also been made for newly governed State of Chhattisgarh on
21.06.2012. He would submit that under the M.P. Class III (Non-Minstl.) G
Forest Service Recruitment Rules, 1967 (hereinafter referred to as
‘Rules’), for promotion for the post of Forester, certain number of years
as experience as trained Guard is mandatory. Besides, by supporting
the reasoning of the Division Bench, he would also submit that any attempt
to draw support from circular 17.10.1977 as followed in the State of H
1042 SUPREME COURT REPORTS [2022] 16 S.C.R.
A Chhattisgarh would be in the teeth of statutory Rules and hence would
be ultra vires. At any rate, the Court should not see any merit in the
complaint of the appellants, he contends.
13. Per contra, Mr. Sourav Roy, learned Deputy Advocate
General, would submit that the reasoning of the High Court in the
B impugned judgment may not be supportable. He would also submit with
reference to the stand taken by the State in the counter affidavit that the
earlier circular dated 17.10.1977 in the undivided State of Madhya
Pradesh continued to hold good and it was revoked finally in the manner
contemplated in law only with the issuance of order dated 11.06.2012.
In other words, he would, in substance, support the stand of the appellants.
C He would submit that while it may be true that there was a strike and a
decision was taken, it was only in principle, as is quite evident from the
communication dated 14.05.2009. It only indicates that proposal was
invited. Thereafter, as is true with any Government decision, of the
nature involved, it is a time consuming affair. What is relevant is the
D legality of the matter and therefore, for the validity of the matter if it is a
Government order, it has to be an order of the Governor, which he agrees
with the learned senior counsel for the appellants, was passed only with
the issuance of order dated 11.06.2012. He would further point out that
the Court may not overlook the fact that the case of the writ petitioners
in the writ petition was not based essentially on the withdrawal of the
E order dated 17.10.1977 by order dated 14.05.2009. Instead, the case
was based on the order dated 17.10.1977 being completely eclipsed and
suffering a natural death as a result of the issuance of the communication
which is dated 14.12.2009. He would further submit that there is also no
merit in the complaint that order dated 17.10.1977 was ultra vires. He
F would point out that actually under the Rules which were extant while
there was a certain number of years to roll by as a Forest Guard before
a person could be considered for promotion as Forester, in accordance
with Rule 6(4) of the erstwhile Rules, however, the Government may
prescribe by order, procedure which may be at variance from the existing
rules. Therefore, the order dated 17.10.1977 was projected to be one
G such exercise. What is more, even in the newly enacted Rules for the
State of Chhattisgarh, a provision corresponding to Rule 6(4) has been
enacted. So, there is no merit in the case of the ultra vires also.
14. We think it is unnecessary to again burden the judgment with
copious reference to case law as we have already referred to the
H
OMKAR SINHA & ANR. v. SAHADAT KHAN & ORS. 1043
[K. M. JOSEPH, J.]
paragraphs as contained in the Constitution Bench of this Court in A
Bachhittar Singh (supra).
What is relevant is that under the Rules, Rule 14(1) provided for
promotion from the post of Guard to Forester. Under the same, we
notice Schedule IV. It is provided that a Forest Guard could be promoted
after three years after training from the Forest Guards Training School B
or after 12 years or more years of service in the case of untrained
Forest Guards. However, we must notice Rule 6. Rule 6 of the said
Rules provides for method of recruitment.
Rule 6 inter alia provides that recruitment to the service after
commencement of the Rules which we notice is in the year 1967, can be C
made inter alia by promotion of members of the service mentioned in
column 12 of Schedule IV. Thereafter what is relevant is sub Rule (4):
“(4) Notwithstanding anything contained in sub-rule (1), if
in the opinion of the Government the exigencies of the
service so require, the Government may adopt such methods D
of recruitment to the service other than those specified in
the said sub-rule, as it may, by order issued in this behalf,
prescribe.”
Therefore, it would appear to be the case of the State that it is not
as if the 1977 order was in any manner contrary to the statutory rules E
and it was very much premised on the statutory rules.
15. We have already noticed the factual position. The appellants
undoubtedly stood first in the training programme during the training as
Forest Guards. There was a reorganisation of the State as we have
noticed. The Government Order which would appear to be a Government F
Order in the undivided State of Madhya Pradesh continued in terms of
the Reorganisation Act. Such Government Orders of the undivided State
of Madhya Pradesh would undoubtedly continue to hold the field till it
was revoked in the manner known to law. The Division Bench in the
impugned judgment has proceeded on the basis that the Order dated
17.10.1977 was revoked by order dated 14.05.2009. It is, undoubtedly, G
true that in the said communication, it is addressed by the Secretary to
the Principal Chief Forest Conservator. The proposed strike and the
decision taken is referred to. At the same time, it all ends by requesting
that the necessary proposal be submitted. It is thereafter that
communication dated 14.12.2009 came to be made. Communication
H
1044 SUPREME COURT REPORTS [2022] 16 S.C.R.
A dated 14.12.2009 is not an order of the Governor or expressed to be
made in his name. It is a communication, no doubt, issued by a Chief
Forest Conservator. Therein, no doubt, reference is made to the demands
made by the Employees Union and that the decision had been taken to
give two additional increments to the trainees who stood first in the
Forest Guard training in replacement of the earlier incentive of sending
B
them for training as Forester. It is also stated that there is no need to
send the candidates who stood first in the Forest Guard training for
training as Forester. It is reiterated that as per the directions of the
Chhattisgarh Government, the trainees who stood first are entitled for
only 02 additional increments. We must notice that this communication
C does not bear the insignia of a Government Order, which alone would
suffice to show that order dated 17.10.1977 stood withdrawn. Whereas
we would find that the communication dated 11.06.2012 contains two
specific signs. Firstly, it is expressly made in the name of the Governor.
Secondly, it specifically revokes the communication dated 17.10.1977.
The Division Bench has proceeded to consider the case based on the
D
communication dated 14.05.2009 which we must note is a case which
even the writ petitioners did not have. A perusal of the pleadings of the
writ petition would show that the case of the writ petitioners was premised
on the order dated 14.12.2009 bringing about the revocation of the order
dated 17.10.77. Even the petitioners did not, in other words, set up a
E case that 14.05.2009 is an order revoking 14.05.2009. In matters of this
nature, the role of proper pleadings must be emphasised for the parties
join issue on the basis of the case which has been built up before the
Court.
We are of the view, therefore, that the reasoning which has been
F employed by the Division Bench cannot be sustained. The appeals are
allowed and the impugned judgments will stand set aside. There will be
no orders as to costs.
Nidhi Jain and Amarendra Kumar Appeals allowed.
(Assisted by : Pragya Samal, LCRA)
G
H
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