JUDGMENT Ashok Bhushan, J.
1. These two appears have been filed against the judgment and decree dated 22.12.1978 passed by First Additional District Judge, Etawah in Original Suit No. 58 of of 1977 (Jagat Narain v. State of U..P. and Ors.). The plaintiff- respondent, Jagat Narain has also filed cross objection against the judgment and decree dated 22.12.1978 praying for modification of judgment and decree and further to decree the suit in toto with interest throughout.
2. Sri Manoj Kumar, learned Additional Standing Counsel has appeared for Union of India, Sri J.N. Maurya, learned Standing Counsel has appeared for the State of U.P. and Sri S.P. Gupta, Senior Advocate, assisted by Sri Anoop Kumar Srivastava, Advocate has appeared for plaintiff- respondent, Jagat Narain.
3. Brief facts giving rise to these appeals and cross objections are; the plaintiff, Jagat Narain, was appointed on 1st April, 1954 in Uttar Pradesh State Forest Service as Assistant Conservator of Forests. From 13th November, 1961, the plaintiff was given posting as Deputy Conservator of Forest, The Indian Forest Service (hereinafter referred to as I.F.S)was constituted with effect from 1st October, 1966 under Section 2A of the All India Services Act, 1951. Sixty-three posts of Deputy Conservator of Forests of U.P. Service were encadered in I.F.S. With effect from 1st October, 1966 the plaintiff started officiating against the cadre post. In 1966-67 initial recruitment in the I.F.S. in accordance with I.F.S. (Recruitment) Rules, 1966 (hereinafter referred to as Recruitment Rules, 1966) was held in which the plaintiff was not selected. In all 85 persons were appointed in pursuance of initial recruitment. The initial recruitment was challenged in this Court by filing Writ Petition No. 1586 of 1968 which was allowed on 11.12.1970 quashing the initial recruitment. The plaintiff was selected by promotion in Indian Forest Service with effect from 17.5.1969 and was also confirmed. On 1st March, 1971 Sub-rule 3-A was added to Rule 4(1) of Recruitment Rules, 1966 to enable the Central Government to make fresh recruitment under Sub-rule (1) of Rule 4 and to give effect to such fresh recruitment from the same date on which the appointments were declared to be invalid. The selection committee was constituted to make fresh initial recruitment. Challenging the validity of Sub-rule 3-A added in Recruitment Rules, 1966 writ petition was filed by the plaintiff being Writ Petition No. 1179 of 1972 in this Court. Initially an interim order was granted staying the finalisation of the recruitment but subsequently the writ petition was dismissed on 1st February, 1974 on statement made by the learned Advocate General that the Government does not propose to disturb the promotion already made in 1969 including the promotion of the plaintiff as result of the recruitment which they propose to hold under the amended Rules. In March, 1974 initial recruitment was finalised. The plaintiff being eligible was also considered in the initial recruitment but his name was not notified. The plaintiff was asked by the Central Government to give unconditional option for initial recruitment. The plaintiff after certain correspondence gave his unconditional option vide letter dated 19th June, 1976. After receiving the plaintiff's unconditional option for being included in the initial recruitment by a notification dated 28th October, 1976 the plaintiff's name was deleted from list of promoted officers in the I.F.S. and he was included in the initial recruit in the I.F.S. with effect from 1st October, 1966. On 19th February, 1977 the plaintiff's pay was fixed as initial recruit by A.G., UP. The plaintiff filed suit on 13th October, 1977 being Suit No. 58 of 1977 after giving notice under Section 80 C.P.C. In the suit plaintiff claimed following relief:
(A) That on facts stated above, consequent to the declaration that the fixation of pay by the defendants is based on wrong facts and is illegal and ultra- vires, the defendants be directed through defendant No. 4 to fix the pay of the plaintiff:
(a) From 1.10.66 to 31.3.67 @ 980/- P.M. as against Rs. 800/- p.m. fixed by A.G., U.P. defendant No. 4.
(b) From 1.4.67 to 31.3.68 @1060/- p.m. as against Rs. 850/- p.m. fixed by A.G., U.P. defendant No. 4.
(c) From 1.4.68 to 31.3.69 @1100/- p.m. as against Rs. 900/- p.m. fixed by A.G., U.P. defendant No. 4.
(d) From 1.4.69 to 16.5.69 @1150/- p.m. as against Rs. 950/- p.m. fixed by A.G., U.P. Defendant No. 4 and to pay interest on arrears @ 10% per annum.
(B) That as stated above, the defendants be directed to appoint the plaintiff as Conservator of Forests w.e.f. 17.5.69, Addl. Chief Conservator of Forests w.e.f. March, 1971 and Chief Conservator of Forests w.e.f. May, 1972 and to fix his pay and emoluments accordingly in consequence thereof.
(C) That the defendants be directed to fix the seniority of the plaintiff above all officers selected and appointed after 17.5.1969 the date of his appointment to I.F.S. and to grant all other consequential benefits and emoluments along with interest @ 10% per annum.
(D) That the costs of the suit be awarded.
(E) That any other relief beneficial to be plaintiff in the circumstances of the case be also awarded
4. The written statement was filed both by Union of India and State of Uttar Pradesh contesting the claim of the plaintiff. In the written statements it was stated that plaintiff- respondent having opted for being included as initial recruit in the I.F.S. with effect from 1.10.1966, plaintiff cannot claim any benefit as promotee I.F.S. officer with effect from 17.5.1969. The plaintiff's promotion in the I.F.S. cadre with effect from 17.5.1969 has to be cancelled for he being included in the initial recruitment in I.F.S. with effect from 1.10.1966. The plaintiff was not included in the list of initial recruitment even after he was found suitable in the selection held in March, 1974 since by that time plaintiff had not given his unconditional option and it was only after giving unconditional option by the plaintiff to be included in the initial recruitment order dated 28th October, 1978 was issued cancelling his name from the promoted officers in the I.F.S. The suit filed by the plaintiff was barred by time and res-judicata. The plaintiff has no cause of action for filing the suit and certain other pleas were taken. The learned trial Court framed following 13 issues for determination:
Whether the plaintiff became entitled to the following benefits before initial recruitment held in March, 1974 according to the rules and law then in force.
(a) Benefits of pay w.e.f. 1.10.166 to 16.5.69 as claimed in the plaint. For determining this benefit the following sub-issues are involved:
(i) Whether he was a substantive Dy. C.F. in State Forest Service from 1.1.66 to 16.5.69 and if so what was his substantive pay during this period.
(ii) Whether the period of training at Indian Forest College, Dehradun will count towards service for determining the number of years of service in State Forest Service.
(iii) Whether the pay of the plaintiff as an officer officiating against cadre posts of I.F.S. could be limited by Sub-clause (i) and (ii) of Clause (3) of Section 1 of Schedule II of I.F.S. (Pay) Rules, 1968.
(b) Benefit of the right to the substantive post of Conservator of Forests w.e.f. 17.5.69.
(c) Benefit of the right to the post of Addl. Conservator of Forests w.e.f. March 1971.
(d) Benefit of the right to the post of Chief Conservator of Forests w.e.f. May, 1972.
(e) Benefit of the seniority over all officers recruited after 17.5.69.
2. Whether Sub-rule 3-A could be applied retrospectively to the detriment of aforesaid benefits of the plaintiff.
3. Whether the consent for initial recruitment was given by the plaintiff under duress.
4. Whether any interest has accrued to the plaintiff on the arrears.
5. Whether the Govt. acted in violation of the undertaking given by the Advocate General at the time of hearing of the writ petition No. 1179 of 1972 by deleting plaintiff notification of appointment as a promotee and by selecting him in fresh initial recruitment in 1974 without plaintiff's consent. Its effect.
6. Whether the initial recruitment held in 1974 is legally valid.
7. Whether the suit is barred for want of legal notice Under Section 80 C.P.C.
8. Whether the suit is barred by time.
9. Whether the suit is barred by principles of res-judicata.
10. Whether this Court has jurisdiction to try this suit.
11. Whether the suit is undervalued and the court fee paid is insufficient.
12. Whether the suit is barred by principles of waiver estoppel and acquiescence.
13. Whether Sub-rule 1 read with Sub-rule 3A of Rule 4 of the I.F.S. recruitment Rules 1966 applied for fixation of pay of the plaintiff as alleged by the defendants.
5. The trial Court returned finding in favour of the plaintiff with regard to issues regarding suit barred by time and barred by res-judicata and jurisdiction of the Court. On issues 1(a)(i to iii) which were with regard to claim of the pay fixation by the plaintiff were answered in favour of the plaintiff. Issues 1(b) to 1(e) which related to benefit of substantive post of Conservator of Forests with effect from 17.5.1969, Additional Chief Conservator of Forests with effect from March, 1971 and the Chief Conservator of Forests with effect from May, 1972 were answered against the plaintiff. On Issue No. 3, which was as to whether the consent for initial recruitment was given by the plaintiff under duress, the Court answered the issue in negative holding that there was no duress on giving consent by the plaintiff. The trial Court by judgment and decree dated 22.12.1978 decreed the suit of plaintiff partly in so far as relief 'A' was concerned. The other relief were refused. Both Union of India and State of UP. have filed separate first appeals challenging the part of the decree granted by the trial Court. The plaintiff-respondent has filed cross objection dated 2nd July, 1979 praying that suit of the plaintiff be decreed in toto.
6. The counsels appearing for the appellants, i.e., Union of India and State of UP., have raised similar submissions. It is submitted that the plaintiff himself has given unconditional option for being included in the initial recruitment vide his letter dated 19th June, 1976. The plaintiff cannot claim any benefit of his promotion in the I.F.S. cadre with effect from 17.5.1969. The plaintiff cannot take both benefits of he being promoted as I.F.S. as well as he being included in the initial recruitment with effect from 1.10.1966 in I.F.S. They further submitted that suit of the plaintiff was barred by time. The plaintiff cannot claim fixation of salary in accordance with the schedule applicable to promotee officer he being an officer included in the initial recruitment in I.F.S. under Rule 4(1) of Recruitment Rules, 1966. Two years training period cannot be included for fixation of salary. The defendant-appellant did not act against the undertaking given by the learned Advocate General in this Court in the writ petition of the plaintiff which was dismissed on 1.2.1974. The undertaking was only to the effect that Government did not intend to disturb the promotions already made including the promotion of plaintiff with effect from 17.5.1969 and initial recruitment is an additional chance for the plaintiff and other officers. The plaintiff had worked as Deputy Conservator of Forests since 1.10.1966. The trial Court has denied the benefit of promotion and seniority to the plaintiff and on the same basis the relief of monetary benefit was also liable to be rejected. The suit filed by the plaintiff deserves to be dismissed in entirety.
7. Sri S.P. Gupta, learned Senior Advocate, refuting the submissions of counsel for the appellants, contended that the suit of the plaintiff was liable to be decreed in toto. Sri Gupta submitted that the benefit which accrued to the plaintiff by his promotion in I.F.S. cadre with effect from 17.5.1969 could not have been taken away by inclusion of his name in the list of initial recruit with effect from 1.10.1966. Relying on Section 3(1 A) All India Services Act, 1951 Sri Gupta submitted that no retrospective effect can be given to any rule so as to prejudicial effect the interest of the plaintiff. The plaintiff was promoted in I.F.S. on 17.5.1969 and the initial recruitment which was made in 1966-67 was quashed by this Court on 11.12.1970 effect of which was that there were no cadre officer to man cadre post of I.F.S. except the officers who were included as promoted officers including the plaintiff. It is submitted that the plaintiff being promoted officer was entitled to be included on one out of the six cadre posts of Conservator of Forests which were occupied by defendants No. 5 to 10 whose appointments were set-aside on 11.12.1970. Two non-cadre non-select list officers were continued illegally against the cadre post of Additional Chief Conservator of Forests to which post plaintiff was entitled with effect from 17.3.1971 and further from 1.5.1972 as Chief Conservator of Forests which was also occupied by a non cadre officer. On 17th August, 1972 the Central Government had cancelled the initial recruitment of 85 officers consequent to the judgment of this Court in Writ Petition No. 1586 of 1968. In Writ Petition No. 1179 of 1972 filed by the plaintiff challenging Sub-rule (3-A) of Recruitment Rules, 1966 the learned Advocate General had made a statement that promotion given to the plaintiff in the year 1969 will not be in any manner effected and in spite of the above statement of the learned Advocate General the plaintiff has not been given benefit of higher post and the emoluments to which he was entitled. After setting aside the initial recruitment seniority list was published in which the name of the plaintiff was at Serial No. 4 whereas after making of the first recruitment in March, 1974 and in the seniority list issued thereafter the plaintiff has not been given due seniority and his seniority has been effected. According to Rule 8 of the India Forests Service (Cadre) Rules, 1966 every cadre post is required to be filled up by a cadre officer which has also been laid down by the Apex Court in ; Syed Khalid Rizvi and Ors. v. Union of India and Ors.. By giving retrospective effect to the initial recruitment from 1.10.1966 the plaintiff's seniority and accrued right has been effected which are against the ratio laid down by the Apex Court in ; D.P. Sharma and Ors. v. Union of India and Ors. ; S.K. Saha v. Prem Prakash Agarwala and Ors., and ; K. Narayanan and Ors. v. Karnataka and Ors..The plaintiff having given the benefit of the pay scale, was also entitled for the benefit of higher post, emoluments and seniority. There cannot be any estoppal or waiver against law. The plaintiff is entitled for benefit by virtue of he being promoted with effect from 17.5.1969 which cannot be taken away or effected in any manner by subsequent initial recruitment which was given retrospective effect from 1.10.1966. Sri Gupta submitted that the cross objection filed by the plaintiff- respondent is liable to be allowed.
8. I have considered the submissions of both the parties and have perused the record.
9. Before proceeding to consider the submissions made by counsel for the appellants as well as the counsel appearing for the plaintiff- respondent, it is necessary to take note of relevant provisions governing the Indian Forest Service.
10. Indian Forest Service has been constituted according to Section 2A of All India Services Act, 1951. Section 3 of the Act empowered the Central Government to make rules and regulations for recruitment and condition of service of persons appointed to all India service after consultation with the State Government.
11. Exercising power under Section 3 of the All India Services Act, 1951, the Indian Forests Service (Cadre) Rules, 1966 was framed. Another set of rules framed was India Forest Service (Recruitment) Rules, 1966. Rule 4 of the Recruitment Rules, 1966 provided for method of recruitment to the service. Rule 4 is quoted below:
4. Method of recruitment to the Service.-(1) As soon as may be after the commencement of these rules, the Central government may recruit to the service any person from amongst the members of the State Forest Service adjudged suitable in accordance with such regulations as the Central Government may make in consultation with the State Government and the Commission:
Provided that no member holding a post referred to in Sub-clause (ii) of Clause (g) of Rule 2 and so recruited shall, at the time of recruitment, be allocated to any State cadre other than the cadre of a Union territory.
(2) After the recruitment under Sub-rule (1), subsequent recruitment to the Service, shall be by the following methods, namely:-
(a) by a competitive examination;
(aa) by selection of persons from amongst the Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed Forces of the Union who were commissioned after the 1st November, 1962, but before the 10th January, 1968 and who are released in the manner specified in Sub-rule (1) of Rule 7-A:
(b) by promotion of substantive members of the State Forest Service.
(3) Subject to the provisions of these rules, the method or methods of recruitment to be adopted for the purpose of filling any particular vacancy or vacancies in the Service as may be required to be filled during any particular period of recruitment, and the number of persons to be recruited by each method shall be determined on each occasion by the Central Government in consultation with the Commission:
Provided that where any such vacancy or vacancies relates or relate to a State Cadre or a Joint Cadre, the State Government concerned shall also be consulted.
[3A) Notwithstanding anything contained in this rule, where appointments to the Service in pursuance of the recruitment under Sub-rule (1) have become invalid by reason of any judgment or order of any court, the Central Government may make fresh recruitment under that sub- rule and may give effect to the appointments to the service in pursuance of such fresh recruitment from the same date on which the appointments which have become invalid as aforesaid had been given effect to.
12. In exercise of power under Rule 8 the Central Government framed the Indian Forests Service (Initial Recruitment) Regulations, 1966. Another set of regulations, namely, the Indian Forests Service (Appointment by promotion) Regulations, 1966 were framed for recruitment by promotion as contemplated in Rule 4.
13. According to Rule 4(1) of the Recruitment Rules, 1966 the initial recruitment in the I.F.S. was to be made from amongst the members of the State Forest Service adjudged suitable in accordance with regulations. Initial recruitment was made in the year 1966-67 in which initial recruitment the plaintiff was not found suitable. In the initial recruitment 85 persons belonging to State Service were recruited with effect from 1.10.1966 in the I.F.S. cadre. The plaintiff had challenged the initial recruitment by means of Writ Petition No. 1586 of 1968 which writ petition was allowed on 11.12.1970 quashing the initial recruitment. Prior to such quashing the plaintiff was promoted under Rule 4(2)(b) of the Recruitment Rules, 1966 with effect from 17.5.1969. The Recruitment Rules, 1966 were amended by adding Rule 4(3A) vide notification dated 1.3.1971 which has already been extracted above.
14. A perusal of the above Rule 4(3A) of Recruitment Rules, 1966 makes it clear that said rule was inserted to give effect to fresh initial recruitment with effect from the date from which the initial recruitment was quashed by this Court. An amendment was also made in All India Services Act, 1951 by adding Rule 3(1A) which is quoted below:
3. Regulation of recruitment and conditions of service.-(1) ...
(1A) The power to make rules conferred by this section shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interest of any person to whom such rule may be applicable.
(2)...
15. By the aforesaid amendment in All India Services Act, 1951 it was clarified that power to make rules conferred by Section 3 of the Act shall include power to give retrospective effect from a date not earlier than the date of the commencement of this Act with rider that no retrospective effect shall be given to any rule so as to prejudicially affect the interest of any person to whom such rule may be applicable.
16. As noted above, the suit of the plaintiff was partly decreed in so far as relief 'A', as claimed in the suit, is concerned. Both the appeals filed by Union of India and State of UP., challenge the judgment of the trial Court in so far as it partly decreed the suit of the plaintiff. The relief 'A' in the plaint is with regard to fixation of pay. The plaintiff's pay was fixed from 1.10.1966 as Rs. 800/-whereas he claimed it to be Rs. 980/- per month from 1.10.1966 to 31.3.1967, Rs. 1060/- per month was claimed as against 850/-per month from 1.4.1967 to 31.3.1968, Rs. 1100/- per month was claimed as against Rs. 900/- from 1.4.1968 to 31.3.1969 and Rs. 1150/- per month was claimed as against Rs. 950/- from 1.4.1969 to 16.5.1969 with interest. The trial Court has framed Issue No. 1(a) with regard to fixation of pay and decided the said issue No. 1(a) in favour of the plaintiff except Issue No. 1(a)(i). The trial Court held that two years of training at Indian Forest College, Dehradoon from 1st April, 1952 to 31st March, 1954 shall count for purposes of salary. The trial Court also held that Section 1 of Schedule- II of the I.F.S. (Pay) Rules, 1968 does not in any way limit the fixation of pay of plaintiff as an officer officiating in the cadre post of I.F.S. from the promotee quota. Admittedly the plaintiff was promoted on 16.5.1969 and continued to function till his name was deleted from the promotion list by order dated 28th October, 1976. On 28th October, 1976 also the plaintiff's notification including the name of the plaintiff in the initial recruit as I.F.S. with effect from 1.10.1966 was issued prior to 28th October, 1976 the name of the plaintiff could not have been said to be included in the list although he was found suitable in initial recruitment. When the promotion was granted to the plaintiff in the I.F.S. with effect from 17.5.1969 he was entitled to receive his salary as promoted officer and fixation of his pay as promoted officer was entitled to be made in accordance with Schedule- II of Indian Forest Service (Pay) Rules, 1968, The payment of salary in the pay scale and as per fixation with effect from 17.5.1969 was to be implemented and given effect to. The payment of salary as a promoted officer which was entitled to be drawn by the plaintiff became due to him and subsequent inclusion of his name in the initial recruitment with effect from 1.10.1966 could not have effected the salary already drawn or entitled to be drawn by the plaintiff. In the event plaintiff was entitled higher fixation as promoted officer this benefit could not have been taken away by virtue of his inclusion in initial recruitment and the decree of the trial Court giving the benefit of pay scale is to be upheld although on above reasons. The contention raised by the appellants' counsel that plaintiff could not claim benefit both as initial recruit and promotee cannot apply to the part of the payment of salary according to the fixation of pay attach to a particular post and the correct fixation is earned by an officer while working on the post and any action giving retrospective effect of inclusion of the officer in the initial recruitment in I.F.S. Cadre can have no effect on the salary drawn by an officer. It is well settled that any amount of salary received by an officer which has been received by an officer without any fault of him cannot be reduced. The provisions of Section 3(1A) of Recruitment Rules, 1966 are relevant in this context which protects the interest of a person by any retrospective operation of rule framed under the Act. The fact that by Rule 4(3A) of Recruitment Rules, 1966 the Government was empowered to make initial recruitment afresh giving it retrospective effect cannot take away the right of an officer to receive salary. The initial recruitment with effect from 1.10.1966 of the plaintiff and inclusion of his name with effect from 28.10.1976 can have no effect on his this entitlement. Learned counsel for the plaintiff- respondent has also informed that in pursuance of the judgment and decree of the trial Court the payment of decreetal amount has already been made by Government order dated 31st March, 1983 which has already been disbursed to the plaintiff. The said part of the judgment thus needs no interference.
17. Now the claim in the cross objection of the plaintiff-respondent needs consideration. The submission of the counsel for the plaintiff is with regard to entitlement of the plaintiff to the higher post, emoluments as well as seniority. The question of seniority, as stated in the list of date and submissions filed by the plaintiff through Senior Advocate, Sri S.P. Gupta, shows that plaintiff has already retired on 31st March, 1989. Since the petitioner has retired, the benefit of seniority can have no effect and thus this part of submission needs no consideration. The submission which has been pressed by the plaintiff's counsel is that plaintiff was entitled for the post of Conservator of Forest with effect from 17.5.1969, the post of Additional Conservator of Forests with effect from March, 1971 and the post of Chief Conservator of Forests with effect from May, 1972. The submission is that all these posts were manned by non cadre officers because the initial recruitment in the I.F.S. cadre with effect from 1.10.1966 of the officers who were manning the aforesaid posts was quashed by this Court on 11.12.1970 which made their initial appointment as void-abinitio and by virtue of Rule 8 of the Cadre Rules, 1966 those officers were not entitled to hold those cadre posts and the plaintiff ought to have been appointed on the said cadre post with benefit of emolument. There is no dispute that Rule 8 of the Cadre Rules provides as under:
8. Cadre posts to be filled by cadre officers.- Save as otherwise provided in these rules every cadre post shall be filled by a cadre officer.
As per above rule only a cadre officer can be appointed on a cadre post. This was also laid down by the Apex Court in Syed Khalid Rizvi's case (supra). In the written statement filed by State of U.P. it was clearly stated that prior to the constitution of India Forest Service there were only 45 posts in U.P. Forest Service. The plaintiff was at Serial No. 52 in the combined list of permanent and officiating Deputy Conservator of Forests. The plaintiff was only functioning as Deputy Conservator of Forests in the State Forest Service against a temporary post. Consequent upon the encadrement of 63 posts in the Indian Forest Service with effect from 1.10.1966 the plaintiff continued to officiate against the cadre post in the absence of suitable cadre officers. The initial recruitment was made in 1966-67 in which 85 officers were included and the plaintiff was not found suitable. Those officers were manning the cadre post when their initial recruitment was quashed on 11.12.1970. The claim of the plaintiff stems on the strength of the quashment of initial recruitment by this Court. When initial recruitment was quashed very few officers were in the cadre who were promotee officers including the plaintiff. The plaintiffs contention is that since persons who were allowed to continue on the post of Conservator of Forests, Additional Chief Conservator of Forests and Chief Conservator of Forest were non cadre officers, they were required to be removed and plaintiff ought to have been appointed on the post with the emolument.
18. Before proceeding any further one submission pressed by Sri Gupta with vehemence needs consideration first. Sri Gupta submitted that the consent given by the plaintiff to be included in the first recruitment was a conditional consent with several conditions including the condition that benefit which accrued to the plaintiff by virtue of his promotion in the I.F.S. from 17.5.1969 shall not been effected. He further submitted that the said consent was obtained under duress because it was period of emergency and plaintiff was threatened to give his consent. The letter of the plaintiff dated 9th June, 1976 by which he has given the option for appointment as initial recruit is part of the paper book at Page 84. Paragraphs 6 and 11 of the said letter are relevant, which are extracted below:
6. Now by the aforesaid admissions of Government of India, I feel that my grievance has been redressed and therefore, I am giving up my case of promotion to the rank of Conservator of Forests, with effect from 17.5.1969 as it is morally unjustified to supersede innocent officers who are not to blame at all for my rejection or supersession in the first initial recruitment although legally I have a good case which is evident from the opinion of the legal Remembrancer, U.P. to the effect that (1) Sub-rule 3A is bad in law and (2) Sri Jagat Narain should have been considered for promotion to the rank of Conservator of Forests with effect from 17.5.1969 and that his non-consideration was a breach of statutory cadre rules. Besides the following admissions of the Government of India also lend support to my case:
(i) Vide para 3 of Government of India, Cabinet Secretariate, Department of Personnel & A.R.'s letter No. 20014/58/75- AIS (IV), dated: 18.10.1975, it has been mentioned that under the provisions of all India Services Act, 1951 before it was amended in May, 1975, the Government of India Services Act, 1951 before it was amended in May, 1975, the Government of India had no powers to amend any rule retrospectively.
(ii) Vide para 4 of the same letter it has been clarified that the All India Services Act, 1951 has since been amended to empower the Central Government to make rules retrospectively provided no officer governed by such rules is adversely affected. Hence I cannot be deprived of the benefits of promotion and pay accrued to me by virtue of rules inforce on 17.5,1969 the date of my appointment to I.F.S. by the application of Sub-rule 3A framed in 1971.
(iii) Vide judgment of my Writ Petition No. 1179 of 1972 in which the Government of India has conceded through the Advocate General that the Government does not propose to disturb promotions already made in 1969 and that his promotion made in the year 1969 will not be in any way affected. Subsequently, the Government of India in its letter, extract copy of which was communicated with C.C.F. U.P.'s No. E-6482/10/39, dated 13.6.1975, copy enclosed as Annexure I, has clarified that orders appointing an Officer by promotion as well as an initial recruit cannot co-exist. Thus when the appointment as a promotee cannot be disturbed according to Government of India's undertaking given through the Advocate General at the time of hearing of Writ Petition No. 1179 of 1972, initial recruitment cannot exist particularly when the same is to my detriment as pointed out by me in my letter No. 18-C/PC dated: 18.7.1975 addressed to the Chief Conservator of Forests, U.P. advance copy of which was forwarded to the Secretary, Department of Personnel and A.R. New Delhi.
11. As desired in government of India's letter vide Annexure I, I hereby opt for initial recruitment in the hope that the aforesaid benefits of pay, which became admissible to me prior to framing Sub-rule 3A in the year 1971 and holding of initial recruitment in the year 1974, will be granted to me.
19. From the aforesaid letter there is no indication that said letter was written under any duress. The plaintiff was well aware of all the facts and his rights but he gave his option with the hope that benefit of pay as claimed in the letter be given to him. The trial Court has framed an specific issue as to whether consent given by the plaintiff was under duress and has answered the said issue in negative. There is no material to support the submission of counsel for the plaintiff that the said consent was under duress.
20. One more submission made by Sri Gupta is with regard to the undertaking given by the learned Advocate General before this Court in the writ petition filed by the plaintiff. Sri Gupta submitted that Government is bound by the undertaking given by the learned Advocate General. He placed reliance on the judgment of the Apex Court in ; R.K. Rama Rao and Anr. v. State of A.P. and Ors.. The copy of the judgment of the High Court in which undertaking of the learned Advocate General has been noted is at page 82 of the paper book filed on behalf of the respondents. The said judgment is judgment of this Court dated 1.2.1974 in Writ Petition No. 1179 of 1972. Second paragraph of the said judgment is extracted below:
It appears that the petitioner apprehended that if the initial recruitment is held, his promotion might be affected. Learned Advocate General has now made a statement that the Government does not propose to disturb promotions already made in 1969, including the promotion of the petitioner as a result of recruitment which they propose to hold under the amended rules. The petitioner was also included in the list of persons who are eligible to appear in the recruitment proposed to be held under Rule 3-A of the Indian Forest Service (Recruitment) Rules, 1966. The petitioner objects to it. Learned Advocate General has stated that he was given another chance to appear in the proposed selection only with a view to give him a chance in the initial recruitment which will date back to 1966. If the petitioner does not like to appear in that selection he is free to do so but his promotion made in the year 1969 will not be in any way affected. In view of this statement the learned Counsel for the petitioner says that he does not press this petition. He however, wants that if and when the question of seniority comes up he may be able to raise all the pleas that may be open to him in case he is not satisfied with the seniority fixed. That question is not before me in this petition. Since the present writ petition is not being decided on merits, it will be open to the petitioner to raise any plea open to him under the law whenever the question of seniority comes up.
21. From perusal of the above quoted judgment of this Court, it is clear that the learned Advocate General stated before the Court that Government does not propose to disturb promotion including the promotion of the plaintiff. It was, however, stated that plaintiff was also included in the list of persons who are eligible to appear in the recruitment proposed to be held under Sub-rule (3-A). The learned Advocate General stated that this was another chance given to the plaintiff to appear and if the plaintiff does not want to appear in the selection he is free to do so but his promotion made in 1969 will not be in any way effected. Had the plaintiff not given option for being included in the initial recruitment, the Government was found by the undertaking of the learned Advocate General and could not have disturbed the promotion of the plaintiff with effect from 17.5.1969. However, the name of the plaintiff was included in the initial recruitment on the basis of option given by the plaintiff to be included and it is not breach of the undertaking by the learned Advocate General. The benefit of first recruitment has been taken by the plaintiff be included in the I.F.S. cadre from 1.10.1966, i.e., much before he come in the I.F.S. cadre as promotee officer. There is no breach of undertaking of the learned Advocate General in the present case and the submission of the plaintiff's counsel that undertaking given by the learned Advocate General has been breached by the Government has no substance.
22. There are two main reasons for not accepting the submission of the plaintiff with regard to post and emolument of Conservator of Forests, Additional Chief Conservator of Forests and Conservator of Forests. The plaintiff lays his claim on the ground that those officers who were manning those posts on the basis of their initial recruitment in the I.F.S. cadre from 1.10.1966 stood non cadre officer on quashing of their initial recruitment by this Court on 11.12.1970. It is true that initial recruitment was quashed but subsequently fresh initial recruitment was held which was entitled to be given effect to from a retrospective date as permissible by Rule 4(3A) of the Recruitment Rules, 1966 which actually was held in March, 1974 and was given effect from 1.10,1966. The initial recruitment of other officers which was again held in March, 1974 and given effect to of 104 officers to the I.F.S. was although challenged by the plaintiff in Writ Petition No. 1673 of 1974 but the said writ petition was dismissed on 25th March, 1974 observing that seniority has not been determined till that time and situation in the judgment of Writ Petition No. 1179 of 1972 has not changed. Thus the initial recruitment of 104 officers made in. March, 1974 with effect from 1.10.1966 have been given effect to and defect in functioning of those officers as Conservator of Forests, Additional Chief Conservator of Forests and Chief Conservator of Forests on cadre post stood removed notionally and at the time when the claim of the plaintiff was being considered by the trial Court or at the time when suit was filed by the plaintiff all those officers stood cadre officers with effect from 1.10.1966. Thus the claim of the plaintiff to the posts held by them and the emoluments has no legs to stand. It is not the case of the plaintiff that he alone was entitled to be appointed on those posts being cadre officer. An officer is not automatically entitled to be posted on the post of Conservator of Forests, Additional Chief Conservator of Forests and Chief Conservator of Forests by virtue of he being cadre officer. The cases of all eligible officers were required to be considered and recommendation of the officer is required even though departmentally for manning the higher post in cadre. The entitlement of plaintiff to man the aforesaid post is not automatic by mere inclusion of his name as promotee I.F.S. officer with effect from 17.5.1969. The submission of the learned Counsel for the plaintiff that accrued rights of plaintiff having been prejudicially effected by not giving benefit of post and emoluments of the post Conservator of Forests, Additional Chief Conservator of Forests and Conservator of Forests cannot be accepted by mere inclusion of the name of the plaintiff as promotee I.F.S. He is not automatically entitled for the benefit of the aforesaid post.
23. The judgment relied by learned Counsel for the plaintiff in support of his submissions also needs consideration. Reliance has been placed on the judgment of the Apex Court in D.P. Sharma's case (supra). In the said case the rules for determining the seniority were on the length of continuous service which were subsequently changed providing confirmation as a basis of seniority. In the said background the Apex Court held that rules cannot impair the existing rights of officials who were appointed long prior to coming into force of the Rules. In the present case there is no rule changing the basis of determining the seniority, to the contrary rule for fresh initial recruitment and to give it retrospective effect has been specifically framed being Rule 4(3A) which is clearly permissible by Section 3(1A) of All India Services Act, 1951. The said case does not help the plaintiff in the present case. Another case relied is S.K. Saha's ?case (supra). It was held in the said judgment that the Apex Court has repeatedly decried any attempt on the part of the appointing authority to give a notional seniority from a retrospective date, especially, when this process affects the seniority of those who have already entered into the service. The said case would have helped the plaintiff had it not given option for being included in the initial recruitment. He after having been included in the initial recruitment from 1.10.1966 his seniority has to be determined as initial recruit. The said judgment also does not help the plaintiff. The K. Narayhanan's case (supra) was a case where retrospective operation was given to rule providing for appointment by transfer to higher cadre with retrospective effect. Following was held in paragraph-7 of the judgment:
7. Even where the statute permits framing of rule with retrospective effect the exercise of power must not operate discriminately or in violation of any constitutional right so as to affect vested right. The rule making authority should not be permitted normally to act in the past. The impugned rule made in 1985 permitting appointment by transfer and making it operative from 1976 subject to availability of vacancy in effect results in appointing a Junior Engineer in 1986 with effect from 1976. Retrospectivity of the rules is a camouflage for appointment of Junior Engineers from a back date. The rule operates viciously against all those Assistant Engineers who were appointed between 1976 to 1985.
24. The effect and consequence of rule which was considered by the Apex Court in the said judgment were entirely different which does not help the plaintiff in the present case.
25. The judgment of the Apex Court in ; Union of India and Ors. v. Tushar Ranjan Mohanthy and Ors., was in a case where Rule 13 of the Indian Statistical Service Rules, 1961 bringing appointment by promotion within the purview of reservation retrospectively with effect from 27,11.1972 was held to be unreasonable and arbitrary. The said judgment has no applicable in the facts of the present case.
26. In view of the aforesaid, the claim of the plaintiff for entitlement to cadre post of Conservator of Forests, Additional Chief Conservator of Forests and Chief Conservator of Forests and emoluments has rightly been refused by the trial Court after giving due consideration to all facts and material on record. The cross objection filed by the plaintiff to the judgment and decree deserved to be rejected.
27. In view of the foregoing discussions, both the appeals as well as the cross objections are dismissed.
28. Parties shall bear their own costs.