- (1.) Aggrieved by order, Annexure P-2, petitioners, who are Forest Guards, have filed this petition praying for quashing of the aforesaid order with a further direction to respondents No. 1 and 2 to consider their case for promotion to the post of Foresters. It is submitted that service conditions of the petitioners and the private respondents are governed by the rules called the Forest Subordinate Service (Executive Section) Rules, 1944 (hereinafter referred to as 'the rules'). According to Rule 13 of the Rules, the seniority of the members of the Service in each class of their appointment is required to be determined by the date of their substantive appointment against a permanent vacancy in such class. The respective dates of confirmation of the petitioners have been detailed in Annexure P-1. The promotions to the post of Foresters are made in accordance with Rule 9 of the Rules. It is submitted that the respondent-authorities appointed respondents No. 3 to 22 as Foresters without adhering to the rights and by resorting to pick and choose method. Petitioners' case for promotion as Foresters is stated to have not been considered. It is submitted that the petitioners No. 1, 9, 10, 11, 18, 19 and 21 are trained Forest Guards from the Kurukshetra Division whereas respondents No. 10, 13, 15, 16 and 19 are not trained from that Division. It is submitted that the petitioners were not promoted allegedly on the ground of existence of some adverse entries in their service record pertaining to the years 1974-75, 1975-76, 1976-77, 1977-78 and 1978-79. It is contended that proviso-1 to Rule 9 of the Rules is ultra vires of Articles 14 and 16 of the Constitution of India as unguided and unfettered powers have been conferred upon respondents No. 1 and 2. It is further submitted that as the petitioners despite their seniority have been ignored, the order, Annexure P-2, is required to be quashed.
(2.) In reply filed on behalf of respondents No. 1 and 2, it is submitted that promotion of Forest Guards to the rank of Foresters was made strictly on the basis of the rules applicable and not by adopting the method of pick and choose, as alleged by the petitioners. It is contended that all Forest Guards in their respective divisions, whether trained or untrained, had been considered for promotion to the rank of Foresters. Only those Forest Guards who were found fit on seniority-cum-merit, were promoted to the rank of Foresters. It is submitted that petitioners No. 1, 9, 10, 11, 18, 19 and 21 had not received training in the Foresters Course at the Forest School as provided in Appendix 'D' to the rules mentioned in para-6 of this writ petition. They are stated to have received training only in the Forest Guards Course at the Forest School. Respondents No. 10, 13, 14, 16 and 19 are though untrained in the Foresters Course, yet were found fit for promotion to the rank of Forester on the basis of their confidential record as compared to the petitioners. It is further submitted that proviso to Rule 9 is legal, valid and according to law and does not suffer from any vice of discrimination as contended by the petitioners. Rule 9 of the Rules provides as under :- "9. Appointments to posts of Foresters shall be made as follows, that is to say - (1) to the First Grade or the Second Grade from among Foresters in the next lower grade; (2) to the Third Grade from among- (a) persons who- (i) have passed the Matriculation Examination of a recognised University; and (ii) have agreed to undertake after the expiry of one year's work in the Forest Department the course of training at the School in accordance with the regulations in Appendix 'D'. (b) Forest Guards, who have obtained a certificate of training from the School in accordance with the regulations in Appendix 'D' : Provided that the Chief Conservator, the Conservator or the Director, as the case may be, may appoint as Forester any Forest Guard or Darogha who has not obtained the certificate of training from the School : Provided further that thirty per centum of the total number of posts of Foresters shall be filled by the appointment of persons under sub-clause (a) of Clause (2) and the remaining seventy per centum by promotion from among Forest Guards or Daroghas."
(3.) It is thus that the Chief Conservator has been conferred with the powers to appoint as Forester any Forest Guard who has not obtained the certificate training from the School, but it has not been shown as to how such power is discriminatory, particularly when the powers under the proviso have been made applicable in the case of the petitioners and the selected respondents. The mere conferment of discretionary powers does not ipso facto make the rules ultra vires of the Constitution as has been alleged in the writ petition. If the discretionary power has been universally made applicable to the petitioners and the selected respondents, the same cannot be termed to be either tainted by the vice of malice or discrimination violating Articles 14 and 16 of the Constitution. In the instant case, the respondents have specifically stated in the reply filed by them that all Forest Guards containing their seniority in their respective Divisions whether trained or untrained in the Foresters Course at the Forest School, have been considered for promotion to the rank of Forester. Only those Forest Guards who have been found fit on seniority-cum-merit basis, were promoted to the rank of Foresters. However, certificate of training in foresters course at the Forest School is considered as additional merit. Subject to their fitness, but the claim of the senior Forest Guards who are untrained and are otherwise fit for promotion on the basis of seniority-cum-merit is also not ignored." The case of promotion of the petitioners vis-a-vis respondents was duly considered on the basis of seniority-cum-merit before passing of order impugned in this writ petition. No material has been placed on record to show that the promotion of the private respondents was illegal, allegedly being either against the service rules or in violation of any other provision of law or the Constitution. The order impugned in the petition does not suffer from any illegality requiring interference.;