B.N. DEY Vs. UNION OF INDIA (UOI)
LAWS(CAL)-1976-3-45
HIGH COURT OF CALCUTTA
Decided on March 02,1976

B.N. Dey Appellant
VERSUS
UNION OF INDIA (UOI) Respondents


Referred Judgements :-

SHYAMAL KUMAR SARKAR V/S. UNION OF INDIA [REFERRED TO]
B S VADERA G S CHAGGAR VS. UNION OF INDIA [REFERRED TO]
A K KRAIPAK VS. UNION OF INDIA [REFERRED TO]
HUKAM CHAND PRITHV I CHAND VS. UNION OF INDIA [REFERRED TO]
PARVEZ QADIR VS. UNION OF INDIA [REFERRED TO]


JUDGEMENT

A.K. Mookerjee, J. - (1.)The Petitioner joined the West Bengal Senior Forests Service on April 1, 1947. He was appointed to officiate the post of Deputy Conservator of Forest on January 1, 1949. In 1961, he was promoted to the post of Conservator of Forest and on October 12, 1964, he was confirmed in the permanent post of Conservator of Forest. On July 1, 1966, the Central Government by Ministry of Home Affairs notification No. S.O. 2525 dated August 20, 1966, constituted the Indian Forest Service in exercise of powers under Sec. 2A of the All India Services Act, 1951. In exercise of the powers conferred by Sub -section (1) of Sec. 3 of the All India Services Act, 1951, the Central Government framed the Indian Forest Services (Recruitment) Rules, 1966. The said Rules came into force from July 1, 1966. On August 1, 1966, 34 officers were recruited to the Indian Forest Service on probation in the Indian Forest Service Cadre of West Bengal by a notification No. 3/16/66 -A(IV) dated February 9, 1967. On September 2, 1968, the Respondent No. 6 J.K. Ganguly was confirmed in the Indian Forest Service Cadre of West Bengal with effect from October 1, 1967. On April 29, 1969, the Supreme Court of India set aside the selection of the State, Cadre of Jammu and Kashmir in the case of A.K. Kraipak v/s. Union of India : A.I.R. 1970 S.C. 150. On February 7, 1970, the Petitioner was appointed on promotion in the Indian Forest Service, West Bengal State Cadre, on probation and by a notification dated September 26, 1973, he was confirmed in the Indian Forest Service on the State Cadre of West Bengal, with effect from February 7, 1971. On March 1, 1971 the Central Government framed Sub -rule (3A) of Rule 4 of the Indian Forest Services (Recruitment) Rules, 1966. By a notification dated July 17, 1971, issued by the Joint Secretary to the Government of India, Cabinet Secretariat Department of Personnel, three notifications dated February 9, 1967, May 28, 1968 and July 17, 1968, by which the officers were recruited under Sub -rule (1) of Rule 4 of the Indian Forest Services (Recruitment) Rules, 1966, to the West Bengal Cadre of the Indian Forest Service with effect from October 1, 1966, have been rendered ab initio void. It was also stated in the said notification that consequently the Central Government proposed to take further steps to make fresh recruitment under Sub -rule (1) of Rule 4 of the Indian Forest Services (Recruitment) Rules, 1966. On October 19, 1971, under Rule 6 of I.F.S. (Recruitment) Rules, 1966, the President appointed 41 West Bengal State Forest Officers recruited under Sub -rule (1) read with Sub -rule (3A) of Rule 4 of the said Rules on probation to I.F.S. with effect from October 1, 1966. On May 17, 1972, under Rule 6 of I.F.S. (Recruitment) Rules, 1966, the President appointed those 41 officers of the West Bengal Forest Service to the West Bengal Cadre of I.F.S. under Sub -rule (1) read with Sub -rule (3A) of Rule 4 of the said Rules with effect from October 1, 1966. On July 3, 1974, provisional gradation list of officers borne in the West Bengal Cadre in Indian Forest Service was published showing the position of the Respondent No. 6 at serial No. 4 and that of the Petitioner at serial No. 5. According to the Petitioner the appointments as made by the notifications were made mechanically without any application of mind and only for the purpose of regularising with retrospective effect appointments made initially in the year 1966 without consideration of the fresh or relevant materials and Without considering the Petitioner's case. It is the case of the Petitioner that as the selection of the first initial recruitment for the State Cadre of West Bengal was not rendered invalid by any judgment or order of any Court and as such, retrospective effect sought to be given to the second selection to initial recruit -merit for the State Cadre by a notification dated May 17, 1972, is liable to be set aside as ultra vires and illegal. The Petitioner being aggrieved moved this Court under Article 226 of the Constitution and obtained the present Rule.
(2.)The original petition was amended. An affidavit -in -opposition on behalf of the Government of West Bengal was filed and affirmed by Amal Krishna Guptas, Deputy Secretary of forest Department, Government of West Bengal. It is stated therein that the list of officers eligible for inclusion in the first selection list for promotion to Indian Forest Service was submitted to the Selection Committee for consideration. The Petitioner's name was included in that list of eligible officers. The Government of India informed the State Government under its memo, dated March 6, 1969, the approved names in the selection list. In the said list the name of the Petitioner did not appear. The second Selection Committee sat in 1969. When the approved names were finally sent, the Petitioner's name was there. In view of the selection in 1969 and approved by the Union Public Service Commission on February 7, 1970, the Petitioner was promoted to the Indian Forest Service under a notification dated August 14, 1970. In view of the decision of the Hon'ble Supreme Court in the case of A.K. Kraipak v/s. Union of India Supra in the matter of initial recruitment to the Indian Forest service in the State of Jammu and Kashmir Cadre, the Government of India duly considered objectively the judgment and decided to cancel all the earlier appointments and make fresh initial recruitment under Sub -rule (3A) of the Indian Forest Services (Recruitment) Rules, 1966. Accordingly, the appointment to the Indian Forest Service through initial recruitment against the State Cadre of West Bengal was declared ab initio void under memo, dated July 17, 1971. An arrangement was made for fresh selection. The Respondent No. 6 was junior to the Petitioner in West Bengal Senior Forest Service; but while the Respondent No. 6 was appointed in the Indian Forest Service on probation, with effect from October 1, 1966, as an initial recruit under Rule 4(1) of the Recruitment Rules and was confirmed in the post of a Conservator of Forest in the Indian Forest Service with effect from October 1, 1967, the Petitioner was appointed on probation in the Indian Forest Service with effect from February 7, 1970, as a promotee under Rule 8 of the Recruitment Rules and confirmed in the post of Conservator of Forest in the said Indian Forest Service with effect from February 7, 1971. The Respondent No. 6 is an initial recruit in the Forest Service with effect from October 1, 1966 and the Petitioner is a 'promotee' to the said Indian Forest Service with effect from February 7, 1970.
(3.)It is contended by Mr. Roy, appearing on behalf of the Petitioner in support of the Rule, that in exercising powers under Sub -clause (1) of Sec. 3 of the All India Services Act, 1951, the Central Government has got no power to amend Sub -rule (3A) of Rule 4 of the Indian Forest Services (Recruitment) Rules, 1966, retrospectively. Parliament can delegate its legislative powers within the recognised limit. Where any rule is made by any authority to whom such powers have been delegated by the Legislature, it cannot be possible to make the same so as to give retrospective operation. Unless the language employed in the Act In expressed terms or by necessary implication empower the Central Government to make such rule with retrospective effect.
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