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2019 DIGILAW 118 (MEG)

Ibanjop Jones Dhar v. State of Meghalaya

2019-04-24

H.S.THANGKHIEW, MOHAMMAD YAQOOB MIR

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JUDGMENT : Mohammad Yaqoob Mir, J. Petitioners in all six writ petitions were appointed as Overseer/Draughtsman (re-designated as Soil and Water Conservation Ranger (Overseer/Draughtsman-I) as such a feeding cadre for promotion to the post of Assistant Soil and Water Conservation Officer (ASWCO). Their main grievance is that 25% of the vacancies of Assistant Soil and Water Conservation Officer are prescribed to be filled by promotion from amongst Soil and Water Conservation Ranger (General) and 7% by promotion from amongst Soil and Water Conservation Ranger (Overseers/Draughtsman-I), quota of 25% and 7% is unreasonable and irrational. In short according to them 32% i.e. 25% + 7%, promotion quota shall be equally filled up from the cadres of Soil and Water Conservation Ranger (General) and Soil and Water Conservation Ranger (Overseers/Draughtsman-I). 2. Petitioners filed the instant petitions with the following prayer to quash:- (i) The Executive Instructions notified No.SCD.54/93/Pt-I/77 dated 20.11.2003 to the extent of categorizing/classifying the Rangers i.e. Soil Conservation Ranger as "Cadre-I" and Overseers and Draughtsman- as "Cadre-II"; (ii) Clause (b) of sub-rule (2) of Rule 7 of the Meghalaya Soil and Water Conservation Service (Amendment) Rules, 2005 to the extent of classifying/categorizing the single Ranger cadre into A Cadre- I (General) Soil and Water Conservation Ranger and B Cadre- II (Others)-I Soil and Water Conservation Ranger (Overseers/Draughtsman-I); (ii) Amended clause (c) of sub-rule (2) of Rule 7 of the Meghalaya Soil and Water Conservation Service (Amendment) Rules, 2005 to the extent of earmarking 25% by promotion from amongst the Soil and Water Conservation Ranger (General) and 7% by promotion from amongst Soil and Water Conservation Ranger (Overseers/Draughtsman-I) for promotion to the post of Assistant Soil and Water Conservation Officer; (iv) Promotion granted to the private respondents to the post of Assistant Soil and Water Conservation Officer and; (v) To finalize and give effect to the Draft Meghalaya Soil and Water Conservation (Subordinate) Service Rules, 1996. 3. Heard learned counsel for the parties at length. 4. For appreciating the controversy for adjudication in its right perspective, it shall be advantageous to precisely notice the factual background of the case. 5. The Meghalaya Soil and Water Conservation (Subordinate) Service Rules were not framed as a result whereof, the Draft of Meghalaya Soil and Water Conservation (Subordinate) Service Rules, 1996 were framed but not finalized. 4. For appreciating the controversy for adjudication in its right perspective, it shall be advantageous to precisely notice the factual background of the case. 5. The Meghalaya Soil and Water Conservation (Subordinate) Service Rules were not framed as a result whereof, the Draft of Meghalaya Soil and Water Conservation (Subordinate) Service Rules, 1996 were framed but not finalized. As a result whereof, the Government of Meghalaya has ordered that the procedure has to be followed in the matter of filling up the post of A-Cadre-I (General) and B-Cadre-II of the Meghalaya Soil and Water Conservation (Subordinate) Service under the control of Soil and Water Conservation Department, Meghalaya, same has been notified by the Soil and Water Conservation Department, Meghalaya vide No.SCD.54/93/Pt-I/77 dated 20.11.2003. Paras A and B of the said notification for the purpose of this case are relevant to be quoted:- "A-CADRE-1-(GENERAL): 1. Soil Conservation Ranger Promotion to the posts of Soil Conservation Ranger shall be from amongst Soil Conservation Demonstrator (Sr) who have successfully completed the Middle Level Technician Training Course from any Soil Conservation Training Institute and have rendered (7) seven years of service on the first day of the year in which selection is made. Ratio of direct recruitment to promotion in any year shall be 1:3 or 25%:75%. 2. Soil Conservation Demonstrator (Senior) Appointment will be by 100% promotion from amongst Soil Conservation Demonstrator (Jr-1). Those eligible must have rendered at least 7(seven) years of qualifying service on the first day of the year in which selection is made. 3. Soil Conservation Demonstrator (Jr-I) Promotion to the posts of Soil Conservation Demonstrator (Jr-I) will be from amongst Soil Conservation Field Worker/Rubber Tapper/Rubber Budder. Those eligible must have served 7(seven) years of qualifying service as Soil Conservation Field Worker or Rubber Tapper or Rubber Budder. Ratio of direct recruitment to promotion in any year shall be 3:1 or 75%:25%. 4. Soil Conservation Field Worker/Rubber Tapper/Rubber Budder The methods of Promotion will be from amongst Plantation Malis or Malis. Those eligible must have rendered not less than 10 years of service as Plantation Mali/Mali in any Soil Conservation Afforestation or Cash Crop Centre or Nursery Ratio of direct recruitment to promotion in any year shall be 3:1 or 75% : 25%. 5. Plantation Mali/Mali Appointment will be 100% by direct recruitment only on the result/recommendation of the Selection Committee. B-CADRE-II (OTHER)-I-CIVIL:- 1. 5. Plantation Mali/Mali Appointment will be 100% by direct recruitment only on the result/recommendation of the Selection Committee. B-CADRE-II (OTHER)-I-CIVIL:- 1. Soil Conservation Ranger (Overseer/Draftsman) Promotion to this post shall be made from amongst Draftsman-II/Surveyor who have successfully completed the Middle Level Technician Training Course from any Soil Conservation Training Institute and have rendered at least 7(seven) years service on the first day of the year in which selection is made. Ratio of direct recruitment to promotion in any year shall be 1:3 or 25%:75%. 2. Draftsman-II/Surveyor Appointment will be by 100% promotion from Soil Conservation Demonstration (Sr) Surveyor to the post of Surveyor and Soil Conservation Demonstrator (Sr) Draftsman to the post of Draftsman II. Candidates must have an experience of not less than 7 (seven) years of qualifying service for consideration for promotion. 3. Soil Conservation Demonstrator (Senior) Draftsman or Surveyor Appointment will be 100% by direct recruitment based on the results of the competitive examination as conducted by the Selection Committee." 6. Regarding other posts in the Soil and Water Conservation Department, rules were framed by the Government of Meghalaya in exercise of the powers conferred by proviso to Article 309 of the Constitution of India, same were notified by the Soil and Water Conservation Department, Government of Meghalaya vide No.SCD.17/77/PT/44 dated 09.03.1990, services to be governed by such rules consist of categories of posts include Grade-II-Assistant Soil and Water Conservation Officer. Sub-rule (2) of Rule 7 provides for method of recruitment i.e. by promotion from amongst the Rangers belonging to the Meghalaya Soil and Water Conservation Subordinate Service, who possesses the experience as specified in Schedule II and also by direct recruitment. As per Schedule II, mode and method prescribed at serial No.4 is as under:- "SCHEDULE II [RULE 7 (1), RULE (2) (a), RULE 14 (3)] Sl. No. Post Method of Recruitment with % of vacancies to be filled up in any recruitment year by Direct Recruitment or Promotion Direct Recruitment Promotion Educational Qualification etc., required Lower Age Limit Upper Age Limit Persons Eligible for consideration for appointment by Promotion Educational Qualification, Experience etc. Remarks 1. 2. 3. 4. 5. 6. 7. 8. 9. 4. No. Post Method of Recruitment with % of vacancies to be filled up in any recruitment year by Direct Recruitment or Promotion Direct Recruitment Promotion Educational Qualification etc., required Lower Age Limit Upper Age Limit Persons Eligible for consideration for appointment by Promotion Educational Qualification, Experience etc. Remarks 1. 2. 3. 4. 5. 6. 7. 8. 9. 4. Assistant Soil Conservation Officer (1) 25% by promotion (2) 75% by direct recruitment - (1) Bachelor Degree in Agriculture/ Forestry/ or Bachelor Degree in Mechanical/ Civil Engineering or Agricultural Engineering from a recognised University 18 27 Ranger belongings to the Meghalaya Soil Conservation Sub-ordinate Service. Must have rendered not less than 5 years of continuous service as Ranger on the first day of the year in which the selection is made." 7. So the feeding cadre for promotion to the post of Assistant Soil and Water Conservation Officer is "Ranger, Meghalaya Soil Conservation Subordinate Service". 8. Petitioners admittedly were holding the post of Overseers and Draughtsman-I for them there was no promotional avenue. Noticing their stagnation, a proposal dated 02.03.2005 for re-designation of the Overseers and Draughtsman Grade-I was moved wherein, it was specifically mentioned that the posts of Overseers and Draughtsman Grade-I in the department were created prior to the year 1985 and recruitments to most of the posts were made. Stagnation because of no scope of promotion to the higher post resulted in frustration, therefore, to create avenues for promotion for such cadre of employee, department of Soil and Water Conservation obtained approval of Personnel department and of the Cabinet for amending the existing Meghalaya Soil Conservation Service Rules, 1990 to make way for promotion of Overseers and Draughtsman Grade-I to the higher post of Assistant Soil and Water Conservation Officer. It was decided to change the nomenclature of these posts to that of Soil Conservation Ranger (Overseers and Draughtsman). As a result of the said proposal dated 02.03.2005, Executive Order bearing No.SCD.54/93/Pt-I/77 dated 20.11.2003 as quoted above was issued. 9. Vide notification dated 20.04.2005 bearing No.SCD.54/93/113, it was notified that the Governor of Meghalaya was pleased to re-designate the existing posts of "Overseers and Draughtsman Grade-I" under the Soil Conservation Department, Meghalaya as "Soil Conservation Ranger (Overseers and Draughtsman) with immediate effect. In view of the same position, Meghalaya Soil Conservation Service Rules, 1990 (hereinafter referred to as the Rule of 1990) were amended. In view of the same position, Meghalaya Soil Conservation Service Rules, 1990 (hereinafter referred to as the Rule of 1990) were amended. The amended Rule 7 of the Rules of 1990 is advantageous to be quoted:- "7. Method of Recruitment (1) Appointment to any post in the Senior Grade and Grade I shall be made by promotion from amongst the members of the Service holding the next lower posts in the Senior Grade, Grade I and Grade II as the case may be and possessing the experience as specified in Schedule II and included in the Select List under Sub Rule (5) of Rule 10. (2) Appointment to posts in the Grade II shall be made in the following manner (a) By direct recruitment on the result of the examination conducted by the Commission. (b) By promotion from amongst A Cadre I (General) Soil & Water Conservation Ranger and B Cadre II (Others) I Soil & Water Conservation Ranger (Overseer/Draughtsman I) belonging to the Meghalaya Soil & Water Conservation Subordinate Service, who possesses the experience as specified in Schedule II and included in the said list approved under Sub Rule (4) of Rule 11. Note: (Clause (b) sub-rule (2) of Rule 7 amended vide Government Notification No. SCD. 54/93/113 dated 20.4.2005. The proportion of vacancies to be filled up in any years in accordance with Clause (b) above shall be 25% by promotion from amongst Soil & Water Conservation Ranger (General), 7% by promotion from amongst Soil & Water Conservation Ranger (Overseer/Draughtsman-I) and 68% by direct recruitment provided that the number of persons recruited under Clause (a) above shall not at any time exceed 32% of the total strength in that grade of service." 10. Schedule II to the Rules of 1990 was also amended. Serial No.5 of the Schedule is quoted hereunder:- "SCHEDULE II [RULE 7(1), RULE 7(2), RULE 14(3)] Sl. No. Post Method of Recruitment with Percentage of Vacancies to be filled up in any recruitment year by Direct Recruitment or Promotion Direct Recruitment Promotion Educational Qualification etc. required Lower Age Limit Upper Age Limit Persons eligible for consideration for appointment by Promotion Qualification, Experience etc. Remarks 1. 2. 3. 4. 5. 6. 7. 8. 9. 5. No. Post Method of Recruitment with Percentage of Vacancies to be filled up in any recruitment year by Direct Recruitment or Promotion Direct Recruitment Promotion Educational Qualification etc. required Lower Age Limit Upper Age Limit Persons eligible for consideration for appointment by Promotion Qualification, Experience etc. Remarks 1. 2. 3. 4. 5. 6. 7. 8. 9. 5. Assistant Soil & Water Conservation Officer i. 32% by promotion Soil & Water Conservation Rangers-25% SWCR (General), 7% SWCR (Overseer/ Draughtsman - I) both belonging to Meghalaya SWC (Subordinate) Service (Amended vide Govt. Notification No. SCD 54/93/114 dated 20th April 2005 Must have rendered not less than 5 (five) years of continuous service as SWCR (General)/SW CR (Overseer/Dr aughtsman-I) on the 1st day of the year in which selection is made (Amended vide Govt. Notification No. SCD. 54/93/114 dated 20th April 2005 11. Clauses (a) and (c) of sub-rule (2) of Rule 7 were also amended vide notification dated 20.04.2005, same is reproduced hereunder:- "GOVERNMENT OF MEGHALAYA SOIL CONSERVATION DEPARTMENT ********* ORDERS BY THE GOVERNOR NOTIFICATION Dt. Shillong, the 20th April, 2005 NO. SCD.54/93/113 In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and all other powers enabling him in this behalf, the Governor of Meghalaya is pleased to make the following Rules, further, to amend the Meghalaya Soil Conservation Service Rules, 1990, namely: (1) Short Title and Commencement (i) Those rules may be called the Meghalaya Soil Conversation (Amendment) Rules, 2005. (ii) They shall come into force at once. (2) Under Clause (a) sub-rule (2) of Rule 7 the following amendment may be made: "By promotion from amongst A-Cadre-I (General) Soil Conservation Ranger and B-Cadre-II (Others)-1-Civil-Soil Conservation Ranger (Overseer/Draftsman) belonging to the Meghalaya Soil Conservation Sub-ordinate Service who possesses the experience as specified in Schedule-II and included in the said list approved under Sub-Rule(4) of rule 11." Under Clause (c) of Sub-Rule (2) of Rule 7 the following amendment may be made; "The proportion of vacancies to be filled up in any year in accordance with Clause (a) and (b) shall be 25% by promotion from amongst Soil Conservation Ranger (General), 7% by promotion from amongst Soil Conservation Ranger (Overseer/Draftsman) and 68% by direct recruitment. Provided that the number of persons recruited under Clause (a) above shall not at any time exceed 32% of total strength in that Grade of service". 12. Provided that the number of persons recruited under Clause (a) above shall not at any time exceed 32% of total strength in that Grade of service". 12. It is clear that the posts of Assistant Soil and Water Conservation Officer were to be filled up 75% by direct recruitment and 25% by promotion from amongst Soil Conservation Rangers. For avoiding and removing stagnation, 7% of the posts as per amendment were to be filled up from amongst Soil Conservation Ranger (Overseers and Draughtsman Grade-I). Direct quota was reduced to 68% from 75%. It is admitted case that right from the date rules have been framed, promotions have been granted by adhering to the said rules. 13. The case as projected by the petitioners (Soil Conservation Ranger (Overseers and Draughtsman Grade-I) is that to give 25% quota to the Soil Conservation Ranger (General) and 7% to the Soil Conservation Ranger (Overseers and Draughtsman Grade-I) is unreasonable and infringes the right of promotion of the petitioners. 14. Learned counsel for the petitioners tried to project that 32% (25% +7%) promotion quota posts shall be filled up equally from amongst Soil Conservation Ranger (General) and Soil Conservation Ranger (Overseers and Draughtsman Grade-I). Buttressing this submission would submit that the job profile of both the posts, qualifications prescribed for both the posts and pay scale is same, therefore, classification on the basis of quota for promotion between similarly situated two groups is un-reasonable and unwarranted. In support of this contention has placed reliance on the judgment rendered by the Hon"ble Apex Court in the case of Dwarka Prasad & ors v. Union of India & ors: (2003) 6 SCC 535 . 15. In opposition, learned Advocate General has highlighted that the petitioners had no scope for promotion but looking at their plight, a special case was carved out by creating an avenue for their promotion to the post of Assistant Soil and Water Conservation Officer. Soil Conservation Ranger (General) and Soil Conservation Ranger (Overseers and Draughtsman Grade-I) are two different cadres. Sanction of post in the respective cadres and their ladder as reflected in the Executive Order issued by the Government provide for the procedure to be followed for filling up the posts of A-Cadre-I (General) and B-Cadre-II (Others) pending finalization of the Draft Meghalaya Soil and Water Conservation (Subordinate) Service Rules, 1996 (hereinafter referred to as the Rules of 1996). Sanction of post in the respective cadres and their ladder as reflected in the Executive Order issued by the Government provide for the procedure to be followed for filling up the posts of A-Cadre-I (General) and B-Cadre-II (Others) pending finalization of the Draft Meghalaya Soil and Water Conservation (Subordinate) Service Rules, 1996 (hereinafter referred to as the Rules of 1996). These are two separate cadres and job profile of both the cadres is not identical. 16. While considering the submissions of learned counsel for the parties, it is quite evident that the Executive Order as issued and notified on 20.11.2003 as quoted hereinabove, clearly indicate that these are two different cadres and ladders of promotion/recruitment of A-Cadre-I (General) and B-Cadre-II (Others) is well defined in the said notification. 17. Posts of Overseers and Draughtsman Grade-I as were sanctioned were filled up, now by noticing stagnation and no avenues available to them for promotion, these posts have been re-designated as Soil Conservation Ranger (Overseers and Draughtsman Grade-I) vide notification dated 20.04.2005 bearing No.SCD.54/93/113. It is only after re-designation, they also constituted a feeding channel for the post of Assistant Soil and Water Conservation Officer and they have been given 7% of the posts after deduction the same from direct quota of 75% means 25% quota of Grade-I has not been altered. 18. A special case has been carved out for them, therefore, such a classification by no stretch of imagination can be said to be irrational or impermissible. The judgment relied upon by the learned counsel for the petitioners reported in (2003) 6 SCC 535 advance the case of the respondents. It shall be quite advantageous to quote paras 16 and 17 of the reported judgment:- "16. Fixation of quotas or different avenues and ladders for promotion in favour of various categories of posts in feeder cadres based upon the structure and pattern of the Department is a prerogative of the employer, mainly pertaining to policy-making field. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the holders of posts in the feeder cadres. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the holders of posts in the feeder cadres. Most important of them all is the requirement of the promoting authority for manning the post on promotion with suitable candidates. Thus, fixation of quota for various categories of posts in the feeders cadres requires consideration of various relevant factors, a few amongst them have been mentioned for illustration. Mere cadre strength of a particular post in feeder cadre cannot be a sole criterion or basis to claim parity in the chances of promotion by various holders of posts in feeder categories. 17. Normally, where officers are to be drawn for promotion from different posts in the feeder cadre, quota for each post in the feeder cadre is maintained proportionately to the sanctioned strength in that post. This, however, cannot be an inviolable rule of strict application in every case, with an absolute equality of arithmetical exactitude but may vary case to case depending upon the pattern, structure and hierarchies in the Departmental set-up as well as exigencies and balancing needs of administration. There are other relevant considerations, some of which have been mentioned above, which may require departure from the practice of fixation of quota for each post in the feeder cadre, solely proportionate to its strength." 19. The law laid down covers the controversy projected in the case in hand. The total number of posts of Grade-I is 54 whereas, total number of posts of Soil Conservation Ranger (Overseers and Draughtsman Grade-I) is 19, therefore, 25% quota to the Soil Conservation Ranger (General) as compared to 7% to the Soil Conservation Ranger (Overseers and Draughtsman Grade-I) in the background of sanctioned posts is also reasonable. Even otherwise Grade-I and II are two different sources, employer in its wisdom has worked out a solution for removing stagnation of Overseers and Draughtsman Grade-I by amending the rules so as to include them in the feeding channel for promotion to the post of Assistant Soil and Water Conservation Officer. 20. Even otherwise Grade-I and II are two different sources, employer in its wisdom has worked out a solution for removing stagnation of Overseers and Draughtsman Grade-I by amending the rules so as to include them in the feeding channel for promotion to the post of Assistant Soil and Water Conservation Officer. 20. Keeping in view all considerations in pursuance whereof, respondent authorities have taken positive steps to the advantage of the petitioners leave no scope for the petitioners to turn around and claim equivalence to Soil Conservation Ranger (General) Grade-I. 21. Learned counsel for the petitioners tried to project that in the proposal for amendment of Rule 7 of the Rules of 1990, it was specifically mentioned that the nature of work of Soil Conservation Ranger (General) Grade-I and Soil Conservation Ranger (Overseers and Draughtsman Grade- I) is the same. But in the said proposal, it has been clearly indicated that clause (c) of sub-rule (2) of Rule 7 shall be amended and proportion of vacancy to be filled up shall be 25% by promotion from amongst Soil Conservation Ranger (General) and 7% from amongst Soil Conservation Ranger (Overseers and Draughtsman Grade-I) and 68% by direct recruitment, same has been done. While moving that proposal, Commissioner and Secretary to the Government of Meghalaya, Soil Conservation Department has prepared a balanced formula for the benefit of the petitioners. The said amended rules have been notified in the year 2005 and not challenge for a considerable period of time of over ten years. 22. Out of Soil Conservation Rangers (General) and Soil Conservation Rangers (Overseers and Draughtsman), who were promoted to the post of Assistant Soil and Water Conservation Officer, eleven such Rangers admittedly have been promoted to the next position i.e. Senior Assistant Soil and Water Conservation Officer their position has not been challenged. 23. 22. Out of Soil Conservation Rangers (General) and Soil Conservation Rangers (Overseers and Draughtsman), who were promoted to the post of Assistant Soil and Water Conservation Officer, eleven such Rangers admittedly have been promoted to the next position i.e. Senior Assistant Soil and Water Conservation Officer their position has not been challenged. 23. Learned counsel for the petitioners when confronted with the position of challenge to Paras A and B of the Executive Order notified vide No.SCD.54/93/Pt-I/77 dated 20.11.2003 to the extent of categorization and amendment to clause (b) of sub-rule (2) of Rule 7 of the Meghalaya Soil and Water Conservation Service (Amendment) Rules, 2005, to result in negating the very basic position of the petitioners having been re-designated as Rangers, in absence whereof, they would cease to constitute the feeding channel for promotion to the post of Assistant Soil and Water Conservation Officer, submitted that he will not press the same. In short, prayer clauses (i) and (ii) of the writ petition are not pressed. 24. The respondent authorities are expected to finalize the Draft Rules of 1996 with promptitude. 25. For the stated facts, reasons and the law, these writ petitions are found to be without merit accordingly dismissed.