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D.J.Joshi v. Principal Chief Conservator Of Forests

Gujarat High Court

Apr 20, 1998

Judgment

Subsequent
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Factual and Procedural Background

The petitioners are range forest officers (survey) seeking a declaration that RFO (Survey) are equal to RFO and entitled to the same pay scale. They contend that from the creation of Gujarat state in 1960 until 1988 these officers were treated as equal to Range Forest Officer and paid the same pay scale. The historical material shows that the post formerly designated "range surveyor" was redesignated as "range forest officer (survey)" and that successive pay rules and orders (1963 government order, Gujarat civil service pay rules 1969, ROP rules 1975 and ROP rules 1987) had entries reflecting parity in pay scales between RFO and RFO (Survey).

In 1988 an executive government resolution modified an entry (no. 24) and proposed revising the pay scale associated with "range forest officer" from 1400-2600 to 1640-2900, with a statement that statutory rules would be amended. By a statutory amendment (notification dated 20 April 1991) entry no. 24 was substituted, and the substituted entry omitted any explicit mention of RFO or RFO (Survey). The government contends the substituted entry revised pay for RFO but not RFO (Survey).

Petitioners challenge exclusion of RFO (Survey) from the revised pay and rely on the historical record of equal treatment. Respondents relied on a prior judgment (R. H. Bhatt v. Principal Chief Conservator of Forests, 1995 (1) GLR 327) in which a learned single judge concluded the authority revising pay had found it fit to revise the pay of RFO and not RFO (Survey). The present judge examined government files, found no documented conscious decision to exclude RFO (Survey), and—after noting an agreement between parties that the government should reconsider—partly allowed the petitions, directing the state government to reconsider the matter afresh within three months and to give petitioners an opportunity to be heard. Until such decision is taken, no recovery shall be made from the petitioners.

Legal Issues Presented

Whether Range Forest Officer (Survey) are equivalent to Range Forest Officer for the purpose of pay scales and therefore entitled to the same revised pay scale.
Whether the executive and statutory amendments (1988 executive resolution and 1991 statutory substitution of entry no. 24) consciously and validly excluded RFO (Survey) from the higher revised pay scale or whether that exclusion occurred without an exercise of mind or deliberation.

Arguments of the Parties

Petitioners' Arguments

Historically, from 1960 till 1988, RFO and RFO (Survey) were treated as equal and given identical pay scales; the redesignation in 1961 and subsequent rules accepted that equality expressly.
The Gujarat civil service pay rules (1963), the statutory ROP rules of 1969 and 1975, and ROP rules of 1987 show both RFO and RFO (Survey) included under the same entry and same pay scale; successive pay commissions recognised this equivalence.
No authority, committee or pay commission subsequently reconsidered and concluded that RFO (Survey) is unequal to RFO; therefore RFO (Survey) remain entitled to the same pay under the same entry.

Respondents' / Government's Arguments

The government contends that after substitution of entry no. 24 by the 1991 statutory notification there is no entry for RFO or RFO (Survey) and that the substituted entry revised pay of RFO (not RFO (Survey)).
Respondents relied on the judgment of Justice S. D. Shah in R. H. Bhatt v. Principal Chief Conservator of Forests (1995 (1) GLR 327), where the learned single judge concluded that the authority revising pay had found it fit to revise pay for RFO and not for RFO (Survey).
The government also referred to the position (as stated in administrative correspondence) that a High Level Anomaly Committee had "carefully and in detail" examined pay for forest officer (surveyor) and had not found any anomaly (i.e., had not recommended a revision for that cadre).
The forest department provided material and submissions indicating feeder-cadre qualifications and promotion patterns for RFO (Survey) and made representations that RFO (Survey) may be granted revised pay of 1640-2900; those representations were considered administratively.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R. H. Bhatt v. Principal Chief Conservator of Forests and Anr., 1995 (1) GLR 327 (Justice S. D. Shah)	Held (per the respondents / as cited): the authority revising pay found it fit to revise the pay scale of Range Forest Officer and not Range Forest Officer (Survey).	The present court considered that judgment but disagreed with its reasoning on the available record: the present court found no documentary evidence of any conscious decision or application of mind to exclude RFO (Survey) and observed that the prior conclusion (that RFO (Survey) was deliberately excluded) was not supported by government files; the present court therefore did not treat the precedent as dispositive and proposed referral to a division bench (and directed reconsideration by the state).

Court's Reasoning and Analysis

The court's reasoning proceeded through the following steps, relying only on the material before it:

Historical treatment: The court examined the government order of 16 July 1963 and earlier statutory and executive instruments showing that "range surveyor" was redesignated as "range forest officer (survey)" with a directive that revised pay scale of range forest officers be deemed to apply to ranger surveyors from 1 October 1961. Successive rules (1969, 1975, 1987) reflected the same revised pay scales for both RFO and RFO (Survey).
1988 executive modification and 1991 statutory substitution: The court noted an executive resolution of 19 April 1988 that modified entry no. 24 (revising pay from 1400-2600 to 1640-2900 in relation to "range forest officer") and contemplated amendment of statutory rules. Subsequently a statutory amendment (notification dated 20 April 1991) substituted entry no. 24 but, in that substituted entry, there was no explicit mention of RFO or RFO (Survey).
Government's asserted exclusion: The government contended the substituted entry revised pay for RFO but not for RFO (Survey). The earlier single-judge judgment accepted that a revision was applied to RFO and not to RFO (Survey).
Examination of contemporaneous records: The present judge (R.A. Mehta, J.) reviewed government files and observed that no record was produced showing a conscious, deliberative decision or exercise of mind to exclude RFO (Survey) from the revised pay scale. The court emphasized there was no file note, minute or specific decision demonstrating that any authority considered and intentionally decided that RFO (Survey) should be treated differently.
Weight of historical practice and pay commission treatment: The court observed that for decades pay commissions and departmental practice treated RFO and RFO (Survey) as equivalent. That consistent historical treatment gives weight to the petitioners' position and militates against an inference of an intended exclusion without recorded deliberation.
Forest department material and representations: The court noted internal forest department representations that described the duties of RFO and RFO (Survey), and materials showing that the forest department sought parity with Police Sub-Inspectors. The judge observed some administrative correspondence indicating the forest department believed RFO (Survey) had been left out inadvertently and that representations had been made to grant parity.
Challenge to government claim about High Level Anomaly Committee: The court found the government's assertion—namely, that the High Level Anomaly Committee had "carefully and in detail" examined RFO (Survey) and found no anomaly—unsupported by the files; the committee's consideration related to RFO vis-à-vis PSI (Police Sub-Inspector) and did not amount to a decision that RFO (Survey) were unequal to RFO.
Conclusion on present record: Because the court found no evidence of a conscious, considered decision excluding RFO (Survey), and given the historical parity, it was not satisfied with the conclusions of the earlier single-judge opinion. The court considered that the matter required reconsideration by the executive with proper application of mind and offered an option of reference to a division bench, but—importantly—both parties agreed the government should reconsider the question afresh.
Remedial direction: Given the agreement and the absence of documentary evidence justifying exclusion, the court directed the state government to reconsider the pay-scale question afresh within three months after giving the petitioners an opportunity to be heard. The court also directed that until a decision is taken, no recovery shall be made from the petitioners.

Holding and Implications

Rule made absolute; petitions partly allowed; State Government directed to reconsider the pay-scale of RFO (Survey) within three months after affording the petitioners an opportunity to be heard.

Implications and direct effects:

The court has ordered the state government to reconsider, afresh, whether RFO (Survey) are equal to RFO for pay purposes. If the government concludes that RFO (Survey) have been equal to RFO, the government is to treat them as equal and award the same pay scale with effect from the relevant date and pay accordingly.
Interim protection: Pending the government's decision, no recovery shall be made from the petitioners.
Timeframe: The state government is directed to decide the matter within three months from receipt of the judgment.
No broad precedent beyond this decision: The opinion does not articulate or purport to set a new broad legal precedent on pay policy; it directs reconsideration on the administrative record and declines to endorse the earlier judicial conclusion without documentary support. The effect is primarily corrective and directed to the parties and administration on the facts and record before the court.

Show all summary ...

R.A.Mehta, J.:-

(1) The petitioners are range forest officers (survey). The question is whether rfo (survey) are equal to rfo. They pray that right from creation of gujarat state in 1960 till 1988 all these officers have been treated as equal to range forest officer and paid the same pay - scale.

(2). The rfo. (survey) was previously designated as range surveyor. The gujarat civil service (revision of pay) rules 1963, had entry no. 153 as follows:

153.	range forest officer	existing	revised
	instructor	pay	pay
	technical asst.	scale	scale
	guest house manager
	range surveyor	140 - 10 - 200 - eb -	180 - 10 - 240 -
	sanitary inspector	10 - 230 - 15 - 275	eb - 15 - 285 - 20 - 345

by a government order in the name of the governor, dated 16. 7. 1963, the government directed as follows in para 2 and 3.

(3). Government is pleased to direct that the revised pay - scale of range forest officers, sanctioned in government resolution, agriculture and revenue department no. Fst - 1859/70888 - a, dated the 7th august, 1961, should be deemed to apply to the posts of ranger surveyors with retrospective effect from 1st october, 1961.

(4). Government is further pleased to direct that the post of ranger surveyor should be redesignated as range forest officer, (survey) with effect from 1. 10. 1961. It is thus absolutely clear that this equality of rfo. And rfo (survey) is specifically and expressly accepted. The gujarat civil service pay rules, 1969 and rop rules, 1975 also gave the same revised pay scales to both rfo and rfo (survey). Entry 23 of the forest department read as follows :

23.	technical assistant/	existing	revised
	range forest officer,	pay	pay
	superintendent, saw mill,	scale	scale
	range forest officer
	(survey).	250 - 480	475 - 750

the rop rules, 1987 had the similar entry as above (number as entry 24) as follows :

24.	range forest officer/	existing	revised
	technical assistant/	pay	pay
	superintendent saw mill/	scale	scale
	range forest officer (survey) /
	instructor/	475 - 750	1400 - 2600
	rescrach officer

all these rop rules are on the recommendations of the successive pay commissions.

(5). By the executive (non statutory) government resolution dated 19th april, 1988 (anncxure 'b') , the government decided to modify entry no. 24 and revise the pay - scale from 1400 - 2600 to 1640 - 2900 against the entry no. 24, "relating to range forest officer". In para 3, it is mentioned that the necessary amendment in the statutory revision of pay rules shall be made.

(6). By the notification dated 20th april, 1991, the, statutory rop rules have been amended and entry no. 24 is substituted as follows :

(a).	technical assistant/	existing	revised
	superintendent saw mill/	pay	pay
	instructor	scale	scale
	research officer	475 - 750	1640 - 2900

there is no entry of rfo or rfo (survey) at all. The contention of the government is that this substituted entry revises the pay of rfo, and not of rfo (survey).

(7). The contentions of the petitioners are that under the original entry no. 24 admittedly range forest officer and range forest officer (survey) were both expressly covered and both were given the same pay - scale of 1400 - 2600. This equivalence and equality of both the cadres has been recognised by the government and by all pay commissions all along.

(8). Thereafter, at any point of time, there has been no reconsideration of this accepted equivalence and equality by any authority or experts committee and no conclusion that the cadre of range forest officer (survey) is in any way inferior or unequal to the cadre of range forest officer and, that therefore, it is required to be treated separately. It is, therefore, submitted that range forest officer and range forest officer (survey) both are entitled to the same pay - scale under the same entry 24 under the statutory rules; and there is no entry whatsoever that range forest officer (survey) shall have the lower revised pay - scale of 1400 - 2600. In fact after the substitution of the original entry 24 by new entry 24 (a) , there is no entry whatsoever for rfo and rfo survey).

(9). On behalf of the respondents, it is submitted that the question raised in these petitions are covered by the judgment of mr. Justice s. D. Shah in the case of r. H. Bhatt vx. Principal chief conservator of forests andanr. , 1995 (1) glr 327. In paragraph 2 (ii) of the judgment it has been contended that when the government passed the government resolution of dated 19th april, 1988. And amended the revised pay - scale against entry no. 24, range forest officers (survey) are entitled to the said higher revised pay - scale. It is not in dispute that such higher revised pay - scale was given but subsequently withdrawn.

(10). The learned single judge has considered this aspect in paragraphs 11 to 16 of the judgment and he came to the conclusion that

"for strong and convincing reasons the authority revising the pay - scale has found it fit to revise the pay - scale of range forest officer and not to revise the pay - scale of range forest officer (survey)"

(11). I have with the assistance of mr. D. A. Bambhania, the learned assistant government pleader gone through the files of the government. I have not been shown any decision to show that any authority has found it fit not to revise the pay - scale of range forest officer (survey) while revising the pay scale of rfo. In fact, there is no such exercise or decision whatsoever, much less a concious decision, after application of mind and consideration all aspects that range forest officer (survey) is in any manner unequal and not entitled the same revision.

(12). In paragraph 14, the learned single judge has observed that the pay - scale of range forest officer only is revised against entry no. 24. In column no. 4 regarding the revised pay - scale against entry no. 24 in place of 1400 - 2600, 1640 - 2900 was to be substituted. This was an executive order which did not amend the rules and the rules were to be amended. Even if it is assumed that, it is applicable to range forest officer, it does not in any manner indicate that the range forest officer (survey) was to be excluded or that there was any concious decision to that effect. Not only that, there is no exclusion of range forest officer (survey) from this further revision. There is no consideration whatsoever and no application of mind with that aspect when all pay commissions have considered both this cadres as equal. Their opinions is entitled to great weight in respect of such equivalence. It can be reconsidered and revalued by the government or other expert committee. But then that has to be a concious decision, after all relevant aspects are considered, if any decision was to be taken that range forest officer (survey) is not to be granted further revision and to be granted only to range forest officer.

(13). In the present case, it seems that nowhere this aspect is present in the government consideration and files. Therefore, the observations of the learned single judge in para. 15 that out of various posts included in entry no. 24 the government has revised the pay scale of range forest officer only and the government has not revised the pay scale of other posts, is contrary to government record.

(14). The learned single judge has further observed in the same paragraph that by subsequent another notification dated 20. 3. 1991, in exercise of powers conferred by proviso to art. 309 of the constitution of india, the revision of pay rules were amended and entry no. 24 was substituted. (it is mentioned entry no. 24 and not as entry no. 24 (a). The learned single judge proceeds to observe in para 16 of that judgment that the pay - scale of technical assistant, superintendent saw mills, instructor and research officer were revised to 1640 - 2900 by the revision in 1991. Thus, the learned single judge held that when the government resolution was passed on 19th april, 1988, the pay - scale of only range forest officer out of entry no. 24 was revised and, the pay - scale of other officers were not revised which came to be revised by the notification in 1991. This is contrary to the government stand and the statutory rules. The government resolution of 1988 had not amended the statutory rules under art. 309 of the constitution. It is case of the government that rfo necessarily means technical assistant, superintendent saw mill, instructors and it is their case that when the pay - scale of these post is revised, the pay - scale of rfo revised. It is not their case that the scale of rfo is revised in 1988 and te scale of other officers (technical assistant, superintendent saw mill, instructor and research officer) revised in 1991. According to the government, the scale is revised once by one statutory notification of 1991. Therefore, the observation of the learned single judge that in the year 1988 as well as in 1991 the government had revised the pay - scales of different categories within the entry no. 24 is contrary to the facts on record. The observations that the government had not revised the pay - scale of rfo (survey) is only by involved implication, without there being any decision by deliberation.

(15). The amended pay - scales were revised by revision of pay rules in 1987. The entry no. 24 of the range forest officer and range forest officer (survey) referred the revised pay - scale of 1400 - 2600. The entry regarding police sub - inspector in home department provided the pay - scale of 1640 - 2900 and, therefore, representation was made from the forest department that since 1960 all along the range forest officer was placed above the cadre of psi and, therefore, the submission was made that the range forest officer also should be placed in the pay - scale of 1640 - 2900. This representation were made for the entire category of the employees covered within this entry no. 24. The pay - scales of range forest officer and psi. From 1961 to 1987 are as follows :

	1961	saela pay comm.	desai pay comm.	ahmedi pay comm.	pay comm.	present pay comm.
/td>	1.	2.	3.	4.	5.	6.
range forest officer	185 - 345	250 - 480	475 - 750	1145 - 1875	1400 - 2600	1400 - 2600
police sub - inspector	160 - 260	425 - 600	1044 - 1620	1044 - 1620	1350 - 2200	1640 - 2900.

the aforesaid pay - scales of range forest officer are for all the categories included in entry no. 24 and the question to be considered was whether all these persons included entry no. 24 in the revised pay - scale of 1400 - 2600, can be equated with psi for giving the pay - scale of 1640 - 2900. There was no differentiation within the forest department and within the categories of entry 24. There was no such differentiation before any pay commission or authority at any time. Entry no. 24, may be sake of convenience described as rfo (range forest officer). Rfo (survey) has been never considered in any manner separately and independently and consicuously evaluated and found to be unequal to rfo. The stand of forest department has been consistent that for the purpose of pay - scale rfo (survey) is equivalent to rfo. When the government resolution of 1988 was passed by executive instruction, it was given effect in the case of rfo (survey) also. The remarks of the forest department are also to the effect that the pay - scale of rfo being higher than that of psi. For the first time the pay commission of 1987 gave the pay - scale to rfo category which is below the pay - scale of psi and, therefore, atleast a pay - scale of psi 1640 - 2900 should be given to the rfo. And no distinction or differentiation was made between rfo and rfo survey. It is clear from the note of the forest department as under :

"the range forest officers are responsible for proper and timely execution of afforestation programmes, development works in forest area, forest protection, investigation of forest offences and so on. The position of forest personnel in the field becoming more and more precarious. Their duties and responsibilities are no less challenging as compared to police sub - inspectors"

The rfo (survey) are the persons who are working in the field.

(16). Even after the statutory amendment of 1991, the forest department has pointed out that the rfo (survey) seems to have been left out inadvertently, by the letter dated 1st september, 1992. The duties and responsibilities of the rfo (survey) as to how arduous and what circumstances they have to work in the forest are equivalent to the post of rfo. However, after this, k has not been pointed out that, at any time, any committee or pay commission or any authority has considered the equivalence or otherwise of the post of rfo. And rfo (survey). All along the consideration was between rfo and psi. And it was found that the demand made for equivalence with psi. Was fully justified because for all the years, by all the authorities rfo including rfo. (survey) was given higher pay - scale then psi. It is, for the first time, by the revision of pay rules of 1987 that rfo. And rfo (survey) pay - scale came to be brought down in comparison to that of psi. This aspect has been considered by the committee and the rfo had been given the pay - scale of the psi 1640 - 2900. There is no discussion or any deliberation on the question that rfo. (survey) could not be given higher pay - scale and for what reason they had become unequal even though they had been equal for two decades and nobody had questioned that equivalence, much less considered.

(17). The forest department which is in a better and intimate position to know its own cadres has also made a submission on 16. 9. 1992 as follows:

"1. Rfo (surveyor) cadre is filled up by promotion from surveyors. There are no direct recruits and no promotion prospects for rfo surveyors."

"2. In pre revised scale rfo, rfo (surveyor) , research officer, supdt. Sawmill, inspector and technical assistant were the cadres in the o/o pccf drawing scale of rs. 475 - 750. Of these, the pay scale of all but rfo. (surveyor) have been revised to rs. 1640 - 2900 (after representation against proposed revision to rs. 1400 - 2600."

"3. The educational qualification for forest surveyor, the feeder cadre for rfo (survey) is dip. In civil engr, or inter; whereas that for forestor in matric and for rfo is proposed for b. Sc (first year pass)."

"hence on the basis of revised pay scale of cadres which were on equal footing with rfo (surveyor) in pre revised scale, and also in view of the educational qualification and technical nature of work of rfo surveyor, it is submitted that rfo surveyor cadre may also be granted revised pay scale of rs. 1640 - 2900."

This is weighty. However it is rejected on 29. 9. 1992 on the ground that the high level anomaly committee under the chairmanship of the finance minister had considered the matter of revising the pay scale of forest officer (surveyor) and the committee had "carefully and in detail" examined and this committee had not found any anomaly. Therefore, this committee had not recommended any revision for this cadre (rfo survey). This is wholly incorrect. Mr. Bhambhania could not show any such consideration by the committee. What that committee had considered was rfo vis - a - vis psi. There was no consideration of rfo vis - a - vis rfo survey.

(18). In view of the aforesaid discussions and in view of my disagreement with the views expressed by mr. Justice s. D. Shah, all these matters may be required to be referred to a division bench.

(19). However, in any case, the state government will have to apply mind on all the aspects and take an appropriate decision. Both sides agree that the government may be directed to consider the question afresh. Mr. D. A. Bambhania, on instruction of the officers of the finance department stated that the government may be directed to reconsider. In view of this agreement and concession, these petitions are partly allowed.

(20). Rule is made absolute by directing the state government to consider afresh the question of the pay - scale of rfo (survey) , after giving an opportunity to the petitioners. If the government comes to the conclusion rfo (survey) have been euqal to rfo, they shall be treated as equal and should be awarded in the same pay - scale of rfo with effect from the said date and paid accordingly.

(21). Until such decision is taken, no recovery shall be made from the petitioners. The state government shall decide the matter within three months from the receipt of this judgment.