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Rajasthan High Court · body

2005 DIGILAW 1548 (RAJ)

Bajrang Singh Rathore v. State of Rajasthan

2005-05-24

R.P.VYAS

body2005
Honble VYAS, J.–Since a common question is involved in both the aforesaid writ petition, therefore, the same are being decided by this common order. FACTS OF WRIT PETITION NO. 1841/99 (2). The instant petition has been filed by the petitioner with the prayer that the letter dtd. 3.9.1998 (Annex. 7) and circular dtd. 12.10.1998 (Annex. 9) may kindly be quashed and set aside and the respondents may be restrained from giving effect to the letter dtd. 3.9.1998 (Annex. 7) and circular dtd. 12.10.1998 (Annex. 9). (3). Brief facts of the case are that the petitioners No. 1 and 12 are working as Agricultural Supervisor, whereas the petitioners No. 13 to 16 have retired as Assistant Agriculture Officers. (4). Prior to 20.4.1977, there were posts of Fieldman, Garden Supervisor, Grade Pruner, Village Extension Worker and the Field Assistant in the Agriculture Department. No educational qualification was provided for appointment on these posts, as there were no Service Rules. The persons, having qualification of matric or even non-matric were given appointment at the Distt. Level by the competent authorities in the Agriculture Department. These posts were re-designated as Agriculture Supervisors bearing Scale No. 7 Rs. 355-570, by the order dated 20.4.1977 (Annex. 1). (5). It has been averred in the writ petition that in consequence of order dtd. 204.1977 (Annex. 1), pay scale No. 7 was granted to the Agriculture Supervisor, irrespective of the Educational Qualification vide order dtd. 18.6.1980 (Annex. 2). (6). It has also been mentioned in the writ petition that prior to amalgamation of the various posts and re-designated as Agriculture Supervisor, there was no educational qualification required for appointment on the post of Fieldman, but after amendment of the Rajasthan Civil Services (Revised Pay Scale) Rules, 1969, the pay scale of the Fieldman was made different for matric field Man and non-matric Field Man. However from 1.4.1977, this difference was removed and irrespective of the educational qualifications, all were re-designated as Agriculture Supervisors. Some of the Agriculture Supervisors, holding the qualification of matric or above, challenged the drawing of the common seniority list, by way of appeal before the Rajasthan Civil Services Appellate Tribunal, Jaipur which were dismissed by judgment dtd. 5.2.1980 and amalgamation of the post of the Agriculture Supervisor and drawing a common seniority list and granting the same pay scale to the Agriculture Supervisors irrespective of the educational qualification was upheld. (7). 5.2.1980 and amalgamation of the post of the Agriculture Supervisor and drawing a common seniority list and granting the same pay scale to the Agriculture Supervisors irrespective of the educational qualification was upheld. (7). Further case of the petitioner is that State Government issued an order dtd. 23.9.1989 by which Selection Grade for each eligible post was the scale for the next higher post in regular line except for the posts in subordinate services from which promotions are made directly to a post in State Services and isolated posts. (8). The State Government fixed the selection grade pay scales of Agriculture Supervisions, including the petitioners No. 1 to 16 as per the order dated 23.9.1989. (9). Further case of the petitioners is that the Rajasthan Agriculture Subordinate Services Rules, 1978 (hereinafter referred to as ``the Rules of 1978) were promulgated vide Notification dtd. 29.6.1978. According to Rule 5 of the Rules of 1978, all the persons holding substantive posts specified in the Schedule and all the persons regularly recruited in the service before the commencement of the Rules of 1978 were made the members of service and, as such, all the Assistant Agriculture Officers, irrespective of their educational qualifications became members of the service. The promotional post of Agriculture Supervisor is that of Assistant Agriculture Supervisor. The post of Assistant Agriculture Officer was made to be filled 50% by direct recruitment and 50% by promotion. For promotion to the post of Assistant Agriculture Officer, a person was required to have 10 years experience on the post of Agriculture Supervisor. No educational qualification was required for the promotion. (10). It has also been averred in the writ petition that vide notification dtd. 1.4.1991, various amendments in the Rules of 1978 were made and a new Schedule was substituted in the Rules. For the first time by the said amendment, educational qualifications were prescribed for promotion to the post of Assistant Agriculture Officer. The educational qualification for promotion to the post of Assistant Agriculture Officer is B.Sc. (Agriculture) or secondary with Agriculture as a subject. (11). Further case of the petitioners is that with a view to remove the financial stagnation of the employees working with the State Government and to grant them financial relief the State Government was pleased enough to provide selection grade on completion of 9, 18 and 27 years of service vide notification dtd. 25.1.1992 (Annex.4) (12). (11). Further case of the petitioners is that with a view to remove the financial stagnation of the employees working with the State Government and to grant them financial relief the State Government was pleased enough to provide selection grade on completion of 9, 18 and 27 years of service vide notification dtd. 25.1.1992 (Annex.4) (12). According to the notification dtd. 25.1.1992, if an employee complete 18 years of service and if he has already been accorded one promotion, then he is entitled to get second selection grade only after completion of 18 years of service. The first selection grade is not available to such an employee, who has already been granted one promotion. (13). In the year 1996, as per the recommendations of the 5th pay commission, the pay scales of the employees of the State Government had undergone revision and to this effect, the Rules known as Rajasthan Civil Services (Revised Pay Scale) Rules, 1998 (hereinafter referred to as ``the Rules of 1998) were framed. The Rules of 1998 were given effect w.e.f. 1.9.1996 and the pay scales of all the employees, who were working under the control of the State Government, were revised and respective tables were also prepared under the Rules of 1998. (14). Further case of the petitioners is that an order dtd. 20.4.1998 (Annex. 5) was issued by the Principal Secretary, Finance Department, whereby it has been provided that for the Agriculture Supervisors, the first selection grade would be in the pay scale of Rs. 5500-9000/-. (15). It has also been averred in the writ petition that vide circular dtd. 23.5.1998 (Annex. 6), the Director of Agriculture prescribed the selection grades for the Agriculture Supervisors. (16). Further case of the petitioners is that a number of Agriculture Supervisors have been fixed in the selection grade as per the Circular dtd. 23.5.1998, but a large number of Agriculture Supervisors and Assistant Agriculture Officers have not yet been fixed in the grade as per the Circular dtd. 23.5.1998 and the fixation of their pay as per the circular dtd. 23.5.1998 is in process. (17). It has also been stated by the petitioners that the Principal Secretary to the Government, Finance Department has issued a letter dtd. 3.9.1998 (Annex. 23.5.1998 and the fixation of their pay as per the circular dtd. 23.5.1998 is in process. (17). It has also been stated by the petitioners that the Principal Secretary to the Government, Finance Department has issued a letter dtd. 3.9.1998 (Annex. 7) to the Director of Agriculture, Rajasthan, in which it has been mentioned that Agriculture Supervisor possessing academic qualifications prescribed for promotion to the post of Assistant Agriculture Officer are eligible for the first selection grade in the pay scale of next higher post, i.e. Assistant Agriculture Officer in the pay scale of Rs. 5500-9000, irrespective of the fact whether they possess the requisite period of experience prescribed for promotion or not. The Agriculture supervisors who do not possess academic qualification prescribed for promotion to the post of Assistant Agriculture Officer are eligible for first, second and third selection grade as specified in para 5 of the order dtd. 17.2.1998 (Annex. 8). (18). Further case of the petitioner is that a circular dtd. 12.10.1998 has been issued by the Director, Agriculture, whereby the selections grades of Agriculture Supervisors who do not possess the prescribed qualification for promotion to the posts of Assistant Agriculture Officers, have been prescribed. As per this circular, such Agriculture Supervisors are entitled to get pay scale of Rs. 4000-6000/- in place of Rs. 5500-9000 on completion of 9 years of service and pay scale of Rs. 5000-9000 and 6500-10500 on completion of 18 and 27 years of service respectively. (19). In this writ petition, the main contention of the learned counsel for the petitioners is that the letter dtd. 3.9.1998 proceeds on wrong assumption to the effect that the petitioners No. 1 to 16 were not eligible for promotion to the post of Assistant Agriculture Officer when the first selection grade was allowed to the Agriculture Supervisor, in the year, 1989 as per order dtd. 23.9.1989. The pay of the Assistant Agriculture Officers and Agriculture Supervisors were fixed in the selection grade in the pay of Assistant Agriculture Officer because they were eligible for promotion to that post, at that time. The Rules of 1978 as they stood at the time, did not provide for academic qualification for promotion to the post of Assistant Agriculture Officer. Therefore, the fixation of their pay in the pay scale of Post of Assistant Agriculture Officer was perfectly according to the Rules. The Rules of 1978 as they stood at the time, did not provide for academic qualification for promotion to the post of Assistant Agriculture Officer. Therefore, the fixation of their pay in the pay scale of Post of Assistant Agriculture Officer was perfectly according to the Rules. Subsequent amendment of the Rules providing for academic qualifications for promotion to the post of Assistant Agriculture Officer from the post of Agriculture Supervisor is not retrospective and does not effect the vested right of the Agriculture Supervisor whose selection grade was fixed as per the Rules in force at that time. (20). It has also been submitted by the learned counsel for the petitioner that the letter dtd. 23.9.1998 proceeds upon a mis- interpretation of para 5 of the order dtd. 25.1.1992. The note attached to para 5 of the order dtd. 25.1.1992. The note attached to para 5 of the order dtd. 25.1.1992 applies only to the cases where the persons do not possess the academic qualification of the promotion post at the time when the first selection grade is granted. It does not apply to the cases of the Agriculture Supervisors who were all eligible for promotion at the time when the first selection grade was allowed. (21). Further case of the petitioner is that amendment of the Schedule attached to the Rules of 1978 vide notification dtd. 1.4.1991 is retrospective. It cannot be applied to the case of the petitioner who were confirmed on the post of Agriculture Supervisor prior to 1.4.1991. (22). It has also been submitted by the learned counsel for the petitioners that a retrospective amendment of a statutory Rule adversely affecting the vested rights of the employees is ultra vires the Powers of Rule Making Authority. (23). A Reply to the writ petition was filed by the respondents and it has been contended on behalf of the respondents that the Rules were amended vide notification dtd. 1.4.1991, and after amendment in the Rules, only the persons possessing the requisite qualifications have been held entitled for promotion and pay scale of higher post of account of grant of selection grade. It has also been submitted by the learned counsel for the respondents that the selection scale cannot be conferred upon such Agriculture Supervisors who do not possess the eligibility for promotion in conformity with para 5 of the Circular dtd. 25.1.1992. It has also been submitted by the learned counsel for the respondents that the selection scale cannot be conferred upon such Agriculture Supervisors who do not possess the eligibility for promotion in conformity with para 5 of the Circular dtd. 25.1.1992. There is a logic behind it that selection scale is conferred upon the employees in order to remove the stagnation and if they have not been able to get promotion despite they being eligible for promotion on account of non-availability of sufficient number of seats, but such selection scale cannot be conferred upon those who do not even possess the academic qualification necessary for the promotion since conferment of selection is intended to compensate the deprive of promotion. Therefore, the letter dtd. 3.9.1998 and circular dtd. 12.10.1998 are perfectly legal and justified. (24). I have heard the learned counsel for the petitioners at length and scrutinised and scanned the material available on record. (25). It is admitted position that the petitions No. 1 to 12 are working as Agriculture Supervisor and the petitioners No. 13 to 16 served the State Government and have now retired as Assistant Agriculture Officer. (26). It is also admitted that prior to 20.4.1977, there were posts of Fieldman, Garden Supervisor, Grape Pruner, Village Extension Worker and the Field Assistant in the Agriculture Department. There was no educational qualification for appointment to these posts as there were no Service Rules. (27). It is also admitted that these posts were re-designated as Agriculture Supervisors by order dtd. 20.4.1977 (Annex. 1). (28). There is also no dispute that in pursuance of order dtd. 23.9.1989 (Annex. 3), the petitioners were granted benefit of selection grade in the pay scale of next higher post i.e. Assistant Agriculture Supervisor and all the Agriculture Supervisor were eligible for promotion to the post of Assistant Agriculture Officer in 1989. (29). It is also admitted that Rajasthan Agriculture Subordinate Service Rules, 1978 were promulgated vide notification dtd. 29.6.1978. As per These Rules for promotion to the post of Assistant Agriculture Office, a person was required to have 10 years experience on the post of Agriculture Supervisor. (30). It is also admitted that vide notification dtd. 1.4.1991 various amendments were made in the Rules and for the first time, the educational qualifications were prescribed for promotion to the post of Assistant Agriculture Officer. (31). It is also admitted that vide order dtd. 20.4.1998 (Annex. (30). It is also admitted that vide notification dtd. 1.4.1991 various amendments were made in the Rules and for the first time, the educational qualifications were prescribed for promotion to the post of Assistant Agriculture Officer. (31). It is also admitted that vide order dtd. 20.4.1998 (Annex. 5), it was provided that for the Agriculture Supervisors, the first selection grade would be Rs. 5500-9000. (32). There is also no dispute that vide circular dtd. 23.5.1998, it was provided that first selection grade will be granted to the Agriculture Supervisor in the pay scale of Rs. 5500-9000 and second and third selection grade will be granted in the pay scale of Rs. 6500-10500 and 8000-13500/- irrespective their qualification. (33). Now the grievance of the petitioner is that the Principal Secretary to the Government, Finance Department, Jaipur has issued a letter dtd. 3.9.1998, in which it has been mentioned that agriculture Supervisors who possess the requisite qualification for next promotion on the post of Assistant Agriculture Officer will be granted the selection grade in the pay scale of Rs. 5500-9000/-. However, the agriculture supervisors who do not possess the academic qualification will be granted the first, second and third selection grade as per para 5 of the order dtd. 17.2.1998 and vide circular dtd. 12.10.1998, it has been provided that the Agriculture Supervisor who do not possess the requisite qualification for promotion to the post of Assistant Agriculture Officer will be granted first, second and third selection grade on completion of 9, 18 and 27 years of services in the pay scale of Rs. 4000-6000, 5000-9000 and 6500- 10500/- respectively and accordingly, the process of re-fixing the selection grade as per the Circular dtd. 12.10.1998 has been started by the respondents and excess amount has been ordered to be recovered. (34). The question which arises for consideration, in the facts and circumstances of the present case, is whether the subsequent amendment of the Rules providing academic qualifications for promotion to the post of Assistant Agriculture Officer from the Agriculture Supervisor is retrospective or not and whether it affects the vested right of the Agriculture Officers who have been granted the selection grade as per the Rules in force at the relevant time. (35). (35). The question relating to power to make rules with retrospective effect was considered by a Constitution Bench of the Honble Supreme Court in the case of State of Gujarat vs. Raman Lal Keshav Lal Soni (1983) 2 SCC 33 . It was held by the Honble Supreme Court as under: ``that the law must satisfy the requirements of the Constitution today taking into account the accrued and acquired rights of the parties today. The law cannot say, 20 years ago, the parties had no rights, therefore, the requirement of the Constitution will be satisfied if the law is dated back by 20 years. We are concerned with todays right and not yesterdays. A legislature can not legislate today with reference to a situation that obtained 20 years ago and ignore the march of events and the constitutional rights accrued in the course of 20 years. That would be most arbitrary, unreasonable and a negation of history. (36). In the case of T.R. Kapur vs. State of Harayana 1986 (Supp.) SCC 584, the Honble Apex Court held that the benefits acquired under the existing Rules cannot be taken away by an amendment with retrospective effect that is to say, there is no power to make such a rule under proviso to Article 309 which affects or impairs vested right. (37). The Honble Supreme Court in the case of Chairman Railway Board vs. C.R. Rangathamaiah reported in (1997) 6 SCC 623 propounded that the expression ``vested rights or ``accused rights are used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the Rule in force at that time. Such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Article 14 and 16 of the Constitution of India. (38). Similar view has been taken by this Court in the case of Chandra Mohan Singh vs. State of Rajasthan reported in 2004(3) WLC (Raj.) 413 = (RLW 2004(3) Raj. 2014). (39). In the present case also, the petitioners were granted first selection grade in the year 1989 as per the order dtd. (38). Similar view has been taken by this Court in the case of Chandra Mohan Singh vs. State of Rajasthan reported in 2004(3) WLC (Raj.) 413 = (RLW 2004(3) Raj. 2014). (39). In the present case also, the petitioners were granted first selection grade in the year 1989 as per the order dtd. 23.9.1989 and their pay was fixed in the pay scale of Assistant Agriculture Officer as they were eligible for promotion on the post of Assistant Agriculture Officer at that time. The Rules as they stood at that time did not provide for any academic qualification for promotion to the post of Assistant Agriculture Officer. In view of the law laid down by the Honble Supreme Court in the cases referred supra, the subsequent amendment of the Rules vide notification 1.4.1991 cannot be given retrospective effect and thus, the selection grade which was granted to the petitioners in terms of order dtd. 23.9.1989 cannot be taken back. (40). Further vide order dtd. 20.4.1998 (Annex. 5) it has been provided that for the Agriculture Supervisor, the first selection grade would be Rs. 5500-9000. Subsequently, another circular dtd. 23.5.1998 was issued whereby it was provided that the Agriculture Supervisor will be granted the benefit of selection grade on completion of 9, 18 and 27 years of services in the pay scale of Rs. 5500-9000, 6500-10500 and 8000-13500, irrespective of their academic qualification and the fixation of their pay as per the circular dtd. 23.5.1998 was in process. However, later on the letter dtd. 3.9.1998 and circular dtd. 12.10.1998 were issued by which it was provided that the Agriculture Supervisors who do not possess the requisite academic qualification for promotion to the posts of Assistant Agriculture Officers shall be granted 1st, 2nd and 3rd selection grade on completion of 9, 18 and 27 years of service in the pay scale of Rs. 4000-6000, 5000-9000 and 6500- 10500 respectively, and if higher pay has been granted to the Agriculture supervisors in terms of circular dtd. 23.5.1998, the same shall be recovered. (41). Thus, after issuance of the impugned notification dtd. 3.9.1998 (Annex. 7) and circular dtd. 12.10.1998 with retrospective effect, the secured and vested rights of the petitioners have been taken away as when the petitioners were granted the first selection grade, they were eligible for promotion to the post of Assistant Agriculture Officers. 23.5.1998, the same shall be recovered. (41). Thus, after issuance of the impugned notification dtd. 3.9.1998 (Annex. 7) and circular dtd. 12.10.1998 with retrospective effect, the secured and vested rights of the petitioners have been taken away as when the petitioners were granted the first selection grade, they were eligible for promotion to the post of Assistant Agriculture Officers. A benefit that has accrued to the petitioner under the existing Rules cannot be taken away by an amendment with retrospective effect and no statutory rule or administrative order can whittle down or destroy any right which has become crystallized and no rule can be framed under the Proviso to Article 309 of the Constitution of India which affects or impairs the vested rights. The act of the respondents in issuing impugned notifications retrospectively which have the effect of taking away the benefit already available to the petitioners under the existing rule, is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India and thus, this writ petition deserves to be allowed. S.B. CIVIL WRIT PETITION NO. 118/99 (42). The controversy involved in this writ petition is identical to the one which has been raised in S.B. Civil Writ petition No. 18411/1999 and hence, the present writ petition also deserves to be allowed in light of the observations made by this Court in S.B. Civil Writ petition No. 1841/1999. (43). For the reasons mentioned above, both the writ petitions are allowed. The impugned letter dtd. 3.9.1998 (Annex. 7) and circular dtd. 12.10.1998 (Annex. 9) are quashed and set aside and the respondents are directed to allow the selection grades to the petitioners as per Circular dtd. 23.5.1998 (Annex. 6). (44). No order as to costs.