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2015 DIGILAW 256 (RAJ)

MANI RAM DHAKA v. STATE OF RAJASTHAN

2015-01-28

PRAKASH GUPTA, SUNIL AMBWANI

body2015
ORDER : In DBCWP No.5554/2006: 1. By this writ petition, the petitioners have prayed for the following reliefs:- “i) by an appropriate order or direction the schedule appended to the Rules, which makes Agriculture Supervisors, who are in Agriculture with 10 years experience, as eligible for promotion to the post of Asstt. Agriculture Officers may kindly be declared to be unconstitutional and the same may be struck down and deleted from the statute book. ii) by a further appropriate order or direction, the seniority list dated 2.2.2006 may kindly be declared to be illegal and the same may be quashed and set-aside. iii) by a further appropriate order or direction, the respondents may be directed to prepare separate seniority list of Agriculture Supervisors, who are B.Sc. (Ag.), M.S. (Ag.) and having higher qualifications in Agriculture and then consider them for promotion to the post of Asstt. Agriculture Officer taking into consideration this separate seniority list. iv) by a further appropriate order or direction, the respondents may be directed to provide a separate quota for promotion to the post of Assistant Agriculture Officer for Agriculture Supervisors, who are B.Sc.(Ag.), M.Sc.(Ag.) or having the higher qualification in Agriculture. v) by a further appropriate order or direction, the order dated 15.7.2006 may kindly be declared to be illegal and the same may be quashed and set-aside and the respondents may be directed to make promotion to the post of A.A.O. after preparing separate seniority list of Agriculture Supervisors, who are B.Sc. & M.Sc.(Ag.) etc. vi) by a further appropriate or direction the respondents may kindly be directed to make the promotions on regular basis by holding the DPC and the action of the respondents in making the ad-hoc promotions should be declared to be illegal and the same may be quashed and set-aside.” 2. It is submitted that the petitioners with graduate degree in Agriculture, who had joined as Agriculture Supervisors, have been discriminated, in failing to provide a separate channel to them for promotion to the post of Assistant Agriculture Officer. They have been wrongly clubbed with Supervisors, who have only Secondary (Agriculture), as qualifications. 3. It is submitted that the petitioners with graduate degree in Agriculture, who had joined as Agriculture Supervisors, have been discriminated, in failing to provide a separate channel to them for promotion to the post of Assistant Agriculture Officer. They have been wrongly clubbed with Supervisors, who have only Secondary (Agriculture), as qualifications. 3. Learned counsel appearing for the petitioners has made a vain effort to submit that amendment in the Rajasthan Agriculture Subordinate Service Rules, 1978 (for short 'the Rules'), with effect from 01.04.1991, amending the Schedule, providing for qualifications for promotion from the Agriculture Supervisors and the Village Level Workers (VLW) of Community Development & Panchayat Department with 10 years experience. He has also relied upon the averments of paragraph 4 of the additional affidavit of Shri Pramod Narain Katiyar, Deputy Director (Administration), Agriculture Department, Jaipur, dated 27.01.2007, in which he has stated as follows:- “4- That the qualification prescribed for the promotion on the post of Assistant Agriculture Officer from the post of Agriculture Supervisors are mentioned in Schedule appended with Rules, 1978. There was a provision for 50% by direct recruitment, 45% from promotion from the post of Agriculture Supervisors and 5% by promotion from VLW and the qualification prescribed under the rules for the promotion on the post of Assistant Agriculture Officer is Agriculture Supervisors must be B.Sc. e.g. with 5 years experience on the post mentioned in Column No.5 or from the post of VLW are secondary with agriculture and 10 years experience on the post mentioned in Column No.5.” 4. It is submitted that the amended Rules have been wrongly interpreted in granting promotions. This Court had, vide interim order dated 11.09.2006, directed that the respondents will not make any promotion of those persons, who are not eligible for consideration in terms of the Rules, and consequently 61 persons, given ad hoc promotion vide Office Order dated 15.07.2006, were reverted. 5. It is submitted that the delay in taking steps to fill up the post of Assistant Agriculture Officer by direct recruitment, the Graduates in Agriculture, appointed as Supervisors, have stagnated for almost two decades in the hope of consideration for promotion. 5. It is submitted that the delay in taking steps to fill up the post of Assistant Agriculture Officer by direct recruitment, the Graduates in Agriculture, appointed as Supervisors, have stagnated for almost two decades in the hope of consideration for promotion. The Graduates in Agriculture are most suitable persons, to be promoted on the post, and if this Court interprets the Rules in a manner that an Agriculture Supervisor with qualification of Secondary in Agriculture and 10 years experience, is also eligible for promotion to the post of Assistant Agriculture Officer, a separate channel of promotion should be provided for them with a quota for B.Sc.(Agriculture) for promotion from the post of Agriculture Supervisor to Assistant Agriculture Officer. 6. Learned counsel appearing for the respondents further submits that a regular D.P.C. was held on 06.09.2013 for the vacancies on the post of Assistant Agriculture Officer, beginning from the year 1978. The vacancies from the year 1978 to 01.04.1991, have been filled in on the basis of the unamended Rules, in which the qualification of Secondary(Agriculture) was not prescribed in Column 6. The vacancies on the post of Assistant Agriculture Officer with effect from 01.04.1991, have been provided to be filled in by way of promotion in accordance with the amendment in the Rules with effect from 01.04.1991. 7. Learned counsel for the respondents has also pointed out to the judgment of a Division Bench of this Court at Principal Seat at Jodhpur in D.B. Civil Special Appeal(Writ) No.463/2005, and other connected D.B Civil Special Appeals, decided on 30.04.2014, in which it was held that selection grade provided to avoid stagnation, must be given in accordance with the Rules. The Division Bench relied on T.R. Kapur and Others Vs. State of Haryana & Ors., 1986(Supp) SCC 584, and held that though there is power under Proviso to Article 309 of the Constitution of India, to amend the service rules retrospectively, the power is subject to a well-recognized principle that the benefits acquired under the existing Rules cannot be taken away by an amendment with retrospective effect. The Division Bench disposed of all the Special Appeals without interfering with the judgment of learned Single Judge. 8. We have gone through the amendment in the Rules, dated 01.04.1991, amending the Schedule, as published by the Kishore Book Depot, Jaipur. The Division Bench disposed of all the Special Appeals without interfering with the judgment of learned Single Judge. 8. We have gone through the amendment in the Rules, dated 01.04.1991, amending the Schedule, as published by the Kishore Book Depot, Jaipur. The amended Schedule has not been correctly printed, causing confusion and doubt with regard to qualifications and experience for promotion, in Column 6 of the Schedule, to the post of Assistant Agriculture Officer. In order to understand the amendment, which was made on 01.04.1991, we have perused the Notification dated 01.04.1991, Part 4(Ga) of the Government of Rajasthan, amending the Rules of 1978. The Notification clearly and without any doubt, provides in Column 6, that for the posts to be filled in by promotion mentioned in Column 5, which includes Agriculture Supervisor and Village Level Worker of the Community Development & Panchayat Department, the qualification prescribed is 5 years experience for those, who have a Graduate Degree in Agriculture[B.Sc.(Ag.)], and for those, as mentioned in Column 5, namely Supervisors with Secondary(Agriculture) and VLW, 10 years experience is prescribed. The Rules, thus, clearly provide that for promotions to the post of Assistant Agriculture Officer from Agriculture Supervisors, the qualification prescribed is either B.Sc.(Agriculture) with 5 years experience and for those who possess Secondary (Agriculture), with 10 years experience. 9. We are unable to appreciate as to how, despite clear and unambiguous stipulation in column No.6 of the Schedule, as amended on 01.04.1991, the Deputy Director (Administration), Agriculture Department, Jaipur has stated in paragraph 4 of his affidavit that the Rules for promotion on the post of Assistant Agriculture Officer provide that Agriculture Supervisors must be B.Sc. with 5 years experience on the post mentioned in column No.5, or from the post of VLW, or with secondary qualifications in Agriculture, and 10 years experience on the post mentioned in column No.5. It appears that the affidavit has been affirmed on the basis of the Rule, incorrectly placed and published in the rule-book by a private publisher. The text of the notification dated 01.04.1991 does not admit any ambiguity at all. 10. It is submitted that the Supervisors with Graduate Degree in Agriculture are better qualified. They have been provided for appointment on 50% posts of Assistant Agriculture Officer by direct recruitment, but that the direct recruitment has not been advertised for a long period of time. The text of the notification dated 01.04.1991 does not admit any ambiguity at all. 10. It is submitted that the Supervisors with Graduate Degree in Agriculture are better qualified. They have been provided for appointment on 50% posts of Assistant Agriculture Officer by direct recruitment, but that the direct recruitment has not been advertised for a long period of time. Despite having better qualifications, they have been allowed to stagnate, as there are large number of supervisors with secondary qualifications, senior to them. With their experience of 10 years, they have stolen a march over them in promotions to the post of Assistant Agriculture Officer. 11. It is further submitted that the State Government provided a separate quota and channel of promotion to the Supervisors having Graduate Degree in Agriculture, so that they may be assured promotions. 12. It is submitted that the right of upward movement in service, by way of promotions, is a fundamental right. The denial of such right, by allowing the persons having lesser qualifications, is violative of Articles 14 & 16 of the Constitution of India. The State Government has not taken into consideration the rights of the Supervisors in the Agriculture Department, having Graduate Degree in Agriculture, to be promoted ahead of the Supervisors having secondary qualifications with 10 years experience. 13. We are not impressed with the submission that in the absence of quota, or separate channel of promotions to the Supervisors with Graduate Degree in Agriculture, have caused hostile or invidious discrimination to them, as against the Supervisors with secondary qualifications and 10 years experience. The petitioners with Graduate Degree in Agriculture, applied and joined on the post of Supervisor, fully conscious of the fact that they will have to wait for promotions, and that, the Supervisors with secondary qualifications, are equal to them, except for promotion, for which they are required to have 10 years experience, as against 5 years experience of those, who are having graduate degrees in Agriculture. The statutory rules made under the proviso to Article 309 of the Constitution of India, provide for appointment on the entry level as supervisors, both for persons having graduate degree in Agriculture and those having secondary qualifications in Agriculture. The statutory rules made under the proviso to Article 309 of the Constitution of India, provide for appointment on the entry level as supervisors, both for persons having graduate degree in Agriculture and those having secondary qualifications in Agriculture. For promotions to the post of Assistant Agriculture Officer, the Graduates in Agriculture are required to have experience of 5 years, and those having secondary qualifications in Agriculture, should have experience of 10 years. The difference of experience gives sufficient advantage to Graduates in Agriculture, to be promoted as Assistant Agriculture Officer, much faster than those having secondary qualifications. 14. The petitioners entered into service as Supervisors, with full knowledge of the applicability of the Rules, and that, an opportunity to compete on 50% posts of Assistant Agriculture Officer for direct recruitment. If the direct recruitment has not been made in time, the Supervisors with secondary qualifications in Agriculture cannot be discriminated by providing a separate quota or channel of promotion to the persons with Graduate Degrees in Agriculture, who had joined as Supervisors with them. We do not find any discrimination in the opportunities of promotion between them, to be violative of Articles 14 & 16 of the Constitution of India. 15. In any case, without expressing any final opinion on the merits of the case, we leave the matter, to be decided by the State Government, if any representation is made by the Graduates in Agriculture, working as Supervisors, for the prayers made in these writ petitions. 16. Before parting with the case, we may observe that we have not considered the matter on merits, and have not interfered with the promotions, which may have been made, or are in contemplation, in pursuance to the D.P.C. held in September, 2013. All the promotions, which have been made, and those which are in contemplation, shall not be disturbed by virtue of any observations made by us in this judgment. 17. The writ petition is accordingly dismissed, with liberty to the petitioners to make a representation to the State Government. In DBCWP Nos.3867/2008 & 6756/2011: 18. In view of the fact that we have dismissed the connected D.B. Civil Writ Petition No.5554/2006 today, the prayers made in these writ petitions do not survive. These writ petitions are consequently dismissed as infructuous. 19. A copy of this order be placed in all the connected files.