Chattisgarh High Court
M.P. Ade vs State Of Chhattisgarh on 7 April, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 4742 of 2019
1. M.P. Ade S/o Shri Ridhen Ade Aged About 58 Years Rural Agriculture
Extension Officer Block - Patharia, District - Mungeli, Chhattisgarh.
2. Parmanand Kurre S/o Shri M.R. Kurre Aged About 54 Years Rural
Agriculture Extension Officer Block - Patharia, District - Mungeli,
Chhattisgarh.
3. Kushal Prasad Gendle S/o Shri K. R. Gendle Aged About 44 Years Rural
Agriculture Extension Officer Block - Kota District - Bilaspur
Chhattisgarh.
4. Sukhram Bhagat S/o Shri Sadhu Ram Bhagat Aged About 54 Years
Rural Agriculture Extension Officer Block - Rajpur, District - Balrampur
Chhattisgarh.
---- Petitioners
Versus
1. State of Chhattisgarh Through The Secretary To The Government of
Chhattisgarh, Agriculture Department Mantralaya, Mahanadi Bhawan,
Atal Nagar Police Station Rakhi, Raipur Chhattisgarh., District : Raipur,
Chhattisgarh
2. The Director Agriculture Campus of Agriculture University Labhandi,
Raipur District - Raipur Chhattisgarh.
---- Respondents
For Petitioner : Mr. Anurag Dayal Shrivastava, Advocate
For Respondents : Mr. H.S.Ahluwalia, Deputy Advocate General
For Intervenors : Mr. Vimal Kumar Tondey and Mr. Shashi
Kumar Kushwaha, Advocates
Date of Hearing : 02.02.2022
Date of Judgment : 07.04.2022
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Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. N.K.Chandravanshi, Judge
C.A.V. Judgment
Per Arup Kumar Goswami, Chief Justice
The petitioners are working as Rural Agriculture Extension
Officers (for short, RAEO) under the Department of Agriculture. They
are presently governed by the Chhattisgarh Sub-ordinate Agriculture
Class III (Non-Ministerial) Service Recruitment Rules, 2010 (for short,
the Rules of 2010). Rules of 2010 repealed the Chhattisgarh Sub-
ordinate Agriculture (Non-Ministerial) Service Recruitment Rules, 1972
(for short, the Rules of 1972), which used to govern the service of the
petitioners earlier.
2. By this application filed under Article 226 of the Constitution of
India, the petitioners pray for declaring the amended entries relating to
column 7 of serial No. 3 of Schedule II of the Rules of 2010, brought in
by notification dated 04.12.2018, which was issued in exercise of
powers conferred by proviso to Article 309 of the Constitution of India,
as ultra vires to Articles 14 and 16 of the Constitution of India as well
as to Rules 3 and 6 of the Chhattisgarh Public Service (Promotion)
Rules, 2003 (for short, the Rules of 2003).
3. As the dispute is relating to promotion from the post of RAEO to
the post of Agriculture Development Officer (for short, ADO), prayer is
also made to direct the respondents to proceed for consideration for
promotion to the post of ADO from the post of RAEO as per seniority
list at Annexure-P/6.
4. Rule 6 of the Rules of 2010 provides for method of
recruitment. Rule 6(1) provides that recruitment to the service, after
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commencement of the Rules, shall be made (a) by direct recruitment,
by way of competitive examination or by selection on the basis of merit
and interview; (b) by promotion of members of the service as specified
in column (2) of Schedule IV; and (c) by transfer/deputation of the
persons who hold in a substantive/ officiating capacity such post in
such services as may be specified in that behalf.
5. Schedule IV, amongst others, provides that Surveyors/ RAEO/
Press Operator/Artist/Photographer having 5 years of experience are
eligible to be promoted as ADO.
6. It is submitted by the learned counsel for the parties that cadre
strength of the RAEO and ADO is 3760 and 652, respectively.
7. It will be relevant at this juncture to extract unamended
Schedule-II so far as it relates to the post of ADO,which is as under:
Schedule II
(See Rule 6)
Chhattisgarh Sub-ordinate Agricultural (Non-Ministerial) Service
S.No. Name of Post Total No. Percentage of number of duty posts Remarks
included in of duty to be filled in
service posts
By direct By By
recruitment promotion transfer of
Rule 6 (1) of member persons
(A) of service from other
Rule 6(1) services
(B) Rule 6(1)
(C)
(1) (2) (3) (4) (5) (6) (7)
Agriculture Statistics Services
1 xxx xxx xxx xxx xxx xxx
2 xxx xxx xxx xxx xxx xxx
3 Agriculture 652 - 100% - 15 percent of Surveyor
Development and 82.5 percent for
Officer Rural Agriculture
Extension Officer and
2.5 percent for Press
Operator/ Artist/
Photographer (these
posts is dying cadre) if
these post is not
available against it may
be filled up by a RAEO.
xxx xxx xxx xxx xxx xxx xxx
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8. A perusal of the above would go to show that 100% of the post
of ADO is to be filled up by promotion, out of which 15 percent is to be
promoted from the post of Surveyor, 82.5 percent from the post of
Rural Agriculture Extension Officer and 2.5 percent from the post of
Press Operator/ Artist/ Photographer, providing further that if post is
not available against the said category, quota earmarked for Press
Operator/ Artist/ Photographer may be filled up by RAEO.
9. In order to understand the controversy, it will be appropriate to
take note of the amendment by way of substitution, which reads as
follows:
"In Schedule-II, in serial number 3 for entries relating to
column (7), the following shall be substituted, namely:-
"(i) 10 percent for Surveyor; and
(ii) 90 Percent for Rural Agriculture Extension Officer, out
of which 45 percent shall be filled by Agriculture/
Agricultural Engineering/ Horticulture/ Agricultural Bio-
Technology qualified graduate and 45 percent by other
graduate."
10. The avowed object for bringing in the amendment is spelt out
in the reply affidavit filed by the State. It is stated that under the Rules
of 1972 as well as under the Rules of 2010, the educational
qualification for the RAEO is degree in B.Sc. (Agriculture). However,
there was a dearth of qualified persons holding degree in B.Sc
(Agriculture) resulting in reduction in the pool of RAEO and therefore, a
special drive was undertaken in the year 1997 for filling up the posts of
RAEO by candidates belonging to the Scheduled Castes and
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Scheduled Tribes by way of relaxation with qualification of Higher
Secondary pass certificate with minimum second division. After
reorganization of the State of Madhya Pradesh into State of Madhya
Pradesh and State of Chhattisgarh, the employees allocated to the
State of Chattisgarh contained two categories of RAEOs: one set of
officers were having the requisite qualification of B.Sc. (Agriculture)
and the other, who were not having the requisite qualification of B.Sc.
(Agriculture) and were having either higher secondary certificate or
Graduation in other subjects. A large number of RAEOs not possessing
B.Sc. (Agriculture) degree were promoted to the post of ADO because
of which the departmental activities started getting affected as Fertilizer
Inspectors, Insecticide Inspectors, Seed Inspectors could not be
posted from amongst such ADOs in absence of lack of requisite
qualification of B.Sc. (Agriculture) to hold such post, resulting in set-
back to quality control of agriculture inputs. It is stated that ADOs
having requisite qualification of B.Sc. (Agriculture) or degree in
Chemistry can be posted as Inspectors under the Insecticide Act, 1968,
Fertilizer (Control) Order 1985 and the Seed Act, 1966.
11. Mr. Anurag Dayal Shrivastava, learned counsel for the
petitioners, submits that the ostensible object for the amendment is to
have a large pool of officers in the cadre of ADO having qualification of
graduate in Agriculture. However, for being a Fertilizer Inspector, Seed
Inspector and Insecticide Inspector, it is not necessary that such
person has to hold the post of ADO and therefore, the entire basis for
amendment is fallacious. In the cadre of RAEO, there are a number of
graduates having degree in Chemistry who can be appointed as
Inspectors under the aforesaid Acts. He has submitted that in the Rules
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of 2010, the Rules of 2003 have been incorporated by way of
subordinate legislation and having regard to the Rules of 2003, and
more particularly, Rule 4 and Rule 6, it is evident that promotion can be
effected only on the basis of seniority subject to fitness and therefore,
the classification sought to be introduced ignoring seniority by
providing that 45%, out of 90% allocated to the RAEO for the purpose
of promotion to the post of ADO, is to be filled by
Agriculture/Agricultural Engineering/ Horticulture/Agricultural Bio-
Technology qualified graduate and the rest 45% by other graduates, is
wholly arbitrary and illegal.
12. Mr. Shrivastava submits that once persons have become
members of a cadre, they are equals and they cannot be differentiated
for the purpose of promotion and the effect of the impugned
amendment would be that a junior RAEO holding an agricultural
degree would be promoted ahead of a senior RAEO holding a
graduate degree, but having more experience.
13. Mr. Shrivastava relies on the decisions of the Hon'ble Supreme
Court in the case of T.R.Kothandaraman & Others v. Tamil Nadu Water
Supply & Drainage BD & Others , reported in (1994) 6 SCC 282, with
particular reference to paragraphs 16, 19 and 20, Chandan Banerjee &
Others v. Krishna Prosad Ghosh & Others , reported in (2021) SCC
OnLine SC 773, with particular reference to paragraphs 18, 22 and 24
as well as the judgment dated 22.03.2010 of the High Court of
Judicature at Bombay in K.K.Bhaskaran & Another v. Administrator,
Administrator of Daman & Others (WA No. 3350 of 2001).
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14. Mr. H.S. Ahluwalia, learned Deputy Advocate General,
appearing for the respondents, submits that the classification made on
the basis of educational qualification to achieve administrative
efficiency is not arbitrary and impermissible under Article 14 and 16 of
the Constitution of India. He has articulated the stand taken in the reply
affidavit.
15. An intervention application was filed by the Chairman,
Chhattisgarh Krishi Snatak Shashkiya Krishi Adhikari Sangh praying for
dismissal of the writ petition. Mr. Vimal Kumar Tondey, learned counsel,
appearing for the Intervenor, endorses the submissions made by Mr.
Ahluwalia.
16. We have considered the submissions of the learned counsel
for the parties and have perused the materials on record.
17. Before proceeding further, it will be appropriate to take note of
the judgments cited at the bar as well as to take note of the judgments
in the cases of State of Jammu & Kashmir v. Triloki Nath Khosa &
Others, reported in (1974) 1 SCC 19, Mohammed Shujat Ali & Others
v. Union of India & Others, reported in (1975) 3 SCC 76, Roop Chand
Adlakha & Others v. Delhi Development Authority & Others, reported in
(1989) Supp 1 SCC 116, P. Murugesan & Others v. State of Tamil Nadu
& Others, reported in (1993) 2 SCC 340.
18. Triloki Nath Khosa (supra), which is a Constitutional Bench
judgment, is considered to be the locus classicus on the issue as to
whether educational qualification can be fixed as criteria for
classification between employees merged into one class for the
purpose of promotion. In the aforesaid case, the relevant facts, in a
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nutshell, inter alia, were that the post of Assistant Engineer in the
Engineering Services Branch of the State of Jammu & Kashmir was
filled by way of direct recruitment or through promotion from the cadre
of Subordinate Engineering Services. A rule was brought into force
limiting promotion to the next higher post of Executive Engineer only to
those Assistant Engineers who possessed degree in Engineering or
held the qualification of Associate Member of the Institution of
Engineers (AMIE) and had put in seven years of service. The
respondents, who were Diploma holders and had been serving as
Assistant Engineers challenged the rule on the ground of
discrimination. At paragraphs 32, 33 and 34, the Hon'ble Supreme
Court held as under:
"32. Judicial scrutiny can therefore extend only to the
consideration whether the classification rests on a reasonable
basis and whether it bears nexus with the object in view. It
cannot extend to embarking upon a nice or mathematical
evaluation of the basis of classification, for were such an
inquiry permissible it would be open to the Courts to
substitute their own judgment for that of the legislature or the
rule-making authority on the need to classify or the
desirability of achieving a particular object.
33. Judged from this point of view, it seems to us
impossible to accept the respondents' submission that the
classification of Assistant Engineers into degree-holders and
diploma- holders rests on any unreal or unreasonable basis.
The classification, according to the appellants, was made
with a view to achieving administrative efficiency in the
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Engineering services. If this be the object, the classification is
clearly co-related to it, for higher educational qualifications
are at least presumptive evidence of a higher mental
equipment. This is not to suggest that administrative
efficiency can be achieved only through the medium of those
possessing comparatively higher educational qualifications
but that is beside the point. What is relevant is that the object
to be achieved here is not a mere pretence for an
indiscriminate imposition of inequalities and the classification
cannot be characterized as arbitrary or absurd. That is the
farthest that judicial scrutiny can extend."
34. On the facts of the case, classification on the basis of
educational qualifications made with a view to achieving
administrative efficiency cannot be said to rest on any
fortuitous circumstance and one has always to bear in mind
the facts and circumstances of the case in order to judge the
validity of a classification......"
19. From the judgment in Triloki Nath Khosa (supra), it is
abundantly clear that the classification on the basis of educational
qualification with a view to achieve administrative efficiency is
constitutionally permissible, though, facts of the case have to be looked
into to judge the validity of a classification.
20. Mohammed Shujat Ali (supra) is another Constitution Bench
decision. In this case, the Court was called upon to decide a challenge
made to a quota reserved in promotion to the higher post of Assistant
Engineer for graduate Supervisors as opposed to the non-graduate
Supervisors. In paragraph 28, it was observed as follows:
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"28. ...But from these decisions it cannot be laid down as an
invariable rule that whenever any classification is made on
the basis of variant educational qualifications, such
classification must be held to be valid, irrespective of the
nature and purposes of the classification or the quality and
extent of the differences in the educational qualifications. It
must be remembered that "life has relations not capable
always of division into inflexible compartments". The moulds
expand and shrink. The test of reasonable classification has
to be applied in such case on its peculiar facts and
circumstances. It may be perfectly legitimate for the
administration to say that having regard to the nature of the
functions and duties attached to the post, for the purpose of
achieving efficiency in public service, only degree holders in
engineering shall be eligible for promotion and not diploma or
certificate holders. That is what happened in State of Jammu
& Kashmir v. Triloki Nath Khosa (supra) and a somewhat
similar position also obtained in Union of India v. Dr (Mrs)
S.B. Kohli (supra). But where graduates and non-graduates
are both regarded as fit and, therefore, eligible for promotion,
it is difficult to see how, consistently with the claim for equal
opportunity, any differentiation can be made between them by
laying down a quota of promotion for each and giving
preferential treatment to graduates over non-graduates in the
matter of fixation of such quota. The result of fixation of quota
of promotion for each of the two categories of Supervisors
would be that when a vacancy arises in the post of Assistant
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Engineer, which, according to the quota is reserved for
graduate Supervisors, a non-graduate Supervisor cannot be
promoted to that vacancy, even if he is senior to all other
graduate Supervisors and more suitable than they. His
opportunity for promotion would be limited only to vacancies
available for non-graduate Supervisors. That would clearly
amount to denial of equal opportunity to
him...........................................................................
................................................................................
But even so, we do not think we can be persuaded to strike
down the Andhra Pradesh Rules insofar as they make
differentiation between graduate and non-graduate
Supervisors. This differentiation is not something brought
about for the first time by the Andhra Pradesh Rules. It has
always been there in the Engineering Services of the
Hyderabad and the Andhra States. The graduate Supervisors
have always been treated as a distinct and separate class
from non-graduate Supervisors both under the Hyderabad
Rules as well as the Andhra Rules and they have never been
integrated into one class. Under the Hyderabad Rules, the
pay scale of graduate Supervisors was Rs. 176-300, while
that of non-graduate Supervisors was Rs. 140-300 and
similarly, under the Andhra Rules, the pay scale of non-
graduate Supervisors was Rs. 100-250, but graduate
Supervisors were started in this pay scale at the stage of Rs.
150 so that their pay scale was Rs.150-250. Graduate
Supervisors and non-graduate Supervisors were also treated
differently for the purpose of promotion under both sets of
rules. In fact, under the Andhra Rules a different
nomenclature of Junior Engineers was given to graduate
Supervisors. The same differentiation into two classes also
persisted in the reorganised State of Andhra Pradesh. The
pay-scale of Junior Engineers was always different from that
of non-graduate Supervisors and for the purpose of
promotion, the two categories of Supervisors were kept
distinct and apart under the Andhra Rules even after the
appointed day. The common gradation list of Supervisors
finally approved by the Government of India also consisted of
two parts, one part relating to Junior Engineers and the other
part relating to non-graduate Supervisors. The two categories
of Supervisors were thus never fused into one class and no
question of unconstitutional discrimination could arise by
reason of differential treatment being given to them.
Contention E cannot, therefore, prevail and must be
rejected."
21. It is evident from the above that there was differentiation
between the graduate Supervisors and non-graduate Supervisors and
they were never fused into one class. In that view of the matter,
differentiation made between the graduates and non-graduate
Supervisors were not held to be discriminatory.
22. In Roop Chand Adlakha (supra), the question that fell for
consideration before the Hon'ble Supreme Court was as to whether
different conditions of eligibility for promotion could be provided
between diploma holders and degree holders. In the aforesaid case,
initial recruitment to the cadre of Junior Engineer in the Public Works
Department was made from two different sources. One was made from
degree holders with no experience and another from diploma holders
having two years of experience. Rules provided that for the purpose of
promotion to the cadre of Assistant Engineers, Junior Engineers
holding degree were required to have three years experience while the
Junior Engineers holding a diploma were required to have eight years
of experience. The Hon'ble Supreme Court, at paragraph 29, observed
as follows:
"29. In Triloki Nath case [(1974) 1 SCC 19 : 1974 SCC (L&S)
49 : (1974) 1 SCR 771] diploma-holders were not considered
eligible for promotion to the higher post. Here, in the present
case, the possession of a diploma, by itself and without more,
does not confer eligibility. Diploma, for purposes of
promotion, is not considered equivalent to the degree. This is
the point of distinction in the situations in the two cases. If
Diploma Holders -- of course on the justification of the job
requirements and in the interest of maintaining a certain
quality of technical expertise in the cadre -- could validly be
excluded from the eligibility for promotion to the higher cadre,
it does not necessarily follow as an inevitable corollary that
the choice of the recruitment policy is limited to only two
choices, namely, either to consider them "eligible" or "not
eligible". State, consistent with the requirements of the
promotional posts and in the interest of the efficiency of the
service, is not precluded from conferring eligibility on Diploma
Holders conditioning it by other requirements which may, as
here, include certain quantum of service experience. In the
present case, eligibility determination was made by a
cumulative criterion of a certain educational qualification plus
a particular quantum of service experience. It cannot, in our
opinion, be said, as postulated by the High Court, that the
choice of the State was either to recognise Diploma Holders
as "eligible" for promotion or wholly exclude them as "not
eligible". If the educational qualification by itself was
recognised as conferring eligibility for promotion, then, the
superimposition of further conditions such as a particular
period of service, selectively, on the Diploma Holders alone to
their disadvantage might become discriminatory. This does
not prevent the State from formulating a policy which
prescribes as an essential part of the conditions for the very
eligibility that the candidate must have a particular
qualification plus a stipulated quantum of service experience.
It is stated that on the basis of the "Vaish Committee" report,
the authorities considered the infusion of higher academic
and technical quality in the personnel requirements in the
relevant cadres of Engineering Services necessary. These
are essentially matters of policy. Unless the provision is
shown to be arbitrary, capricious, or to bring about grossly
unfair results, judicial policy should be one of judicial
restraint. The prescriptions may be somewhat cumbersome
or produce some hardship in their application in some
individual cases; but they cannot be struck down as
unreasonable, capricious or arbitrary. The High Court, in our
opinion, was not justified in striking down the rules as
violative of Articles 14 and 16."
23. A perusal of the judgment would go to show that the State,
consistent with the requirement of the promotional post and keeping in
mind the interest of the efficiency of service, is not prevented from
formulating a policy which prescribes as an essential part of the
conditions for the very eligibility that the candidate must have a
particular qualification along with a stipulated quantum of service
experience.
24. In P. Murugesan (supra), the amendment to the relevant Rule
provided ratio of 3:1 to degree holders and diploma holders in the
matter of promotion to the post of Assistant Engineer. The Division
Bench of High Court of Madras struck down the amendment as
discriminatory. The matter being carried to Hon'ble Supreme Court, the
Hon'ble Supreme Court held that the power of rule making under the
proviso to Article 309 of the Constitution is legislative in character. It
was held that there was no justification in principle for holding that the
rule making authority had two options, namely, either to bar the
diploma-holders altogether from promotion or to allow them equal
opportunity with graduate engineers in the matter of promotion. If the
diploma holders can be barred altogether from promotion, it was
difficult to appreciate how and why the rule making authority was
precluded from restricting promotion. It was pointed out that the rule
making authority, having regard to the efficiency of the administration
and other relevant considerations, may be of the view that it is not
necessary to bar the diploma holders from promotion altogether, but
their chances of promotion should be restricted. It was observed that
there was no basis that the rule making authority had only two options,
either to bar the diploma holders or to allow them unrestricted
promotion at par with the graduates.
25. In T.R.Kothandaraman (supra), the Hon'ble Supreme Court on
consideration of various authorities, laid down as follows:
"16. From what has been stated above, the following legal
propositions emerge regarding educational qualification being
a basis of classification relating to promotion in public service:
(1) Higher educational qualification is a permissible basis of
classification, acceptability of which will depend on the facts
and circumstances of each case.
(2) Higher educational qualification can be the basis not only
for barring promotion, but also for restricting the scope of
promotion.
(3) Restriction placed cannot however go to the extent of
seriously jeopardising the chances of promotion. To decide
this, the extent of restriction shall have also to be looked into
to ascertain whether it is reasonable. Reasons for this are
being indicated later."
26. In K.K.Bhaskaran & Another (supra), the question that had
come up for consideration before the Bombay High Court was as to
whether it was open to the department to prescribe a certain
percentage of quota between degree holders and diploma holders in
the matter of promotion from the post of Junior Engineer to the
Assistant Engineer. As per the recruitment rules, prior to 1999, the
Junior Engineers were eligible for promotion to the post of Assistant
Engineer who had put in four years of service if they were degree
holders, or eight years of service, if they were diploma holders. After
amendment, as per the amended rules, for promotion to the post of
Assistant Engineer, 75% could be promoted from the cadre of Junior
Engineers who were diploma holders having eight years of regular
service and 25% could be promoted from the cadre of Junior
Engineers who were degree holders in Electrical Engineering with five
years of regular service. A contention was advanced that to prescribe a
ratio of 75:25 between the diploma holders and the degree holders is
arbitrary and discriminatory and the promotional post should be filled
up only on the basis of existing Rule prior to the amendment and there
should not be any quota prescribed for the degree holders and the
diploma holders. The Bombay High Court held that in the matter of
promotions, a preference can be given on the basis of academic
qualification which was done accordingly by the amendment for which
a valid justification was also provided and accordingly, held the
classification to be reasonable and valid. The Court rejected the
contention that rules cannot be made applicable retrospectively as the
chances of promotion have been reduced. It was held that chances of
promotion cannot be said to be a service condition and even if the
chances of promotion has been affected, the same cannot be a ground
for striking down the amended rules.
27. In Chandan Banerjee (supra), challenge was primarily
mounted on the ground that the eligibility conditions for promotion to
the supernumerary posts of Assistant Engineers are different for
diploma-holder Sub-ordinate Assistant Engineers, who require twenty-
five years of experience to be eligible, as opposed to degree-holder
Sub-ordinate Assistant Engineers, who require thirteen years of
experience. The edifice of the argument was built on the basis that
once the graduates and diploma holders have qualified in a common
examination, there can be no manner of doubt that they came from a
single source of recruitment and therefore, any differentiation on the
basis of educational qualification would be invalid, and thus, the
decision in Triloki Nath Khosa (supra) would be inapplicable.
28. The Hon'ble Supreme Court held that the decision in Triloki
Nath Khosa (supra) laid down that once the direct recruits and
promotees are integrated into a common pool, they cannot be treated
differentially based on the source of recruitment but it did not lay down
the proposition that they cannot be classified on other reasonable
grounds and accordingly repelled the contentions advanced.
29. In view of the law laid down by the Hon'ble Supreme Court as
noted supra, submission of Mr. Shrivastava that once persons had
become members of a cadre though possessing different educational
qualification, they become equals and as an absolute rule, cannot be
differentiated for the purpose of promotion, cannot receive judicial
imprimatur.
30. We will now revert back to the facts of the case.
31. Rule 26 of the of the Insecticide Rules, 1971 provides that a
person shall be eligible for appointment as an Insecticide Inspector
under the Insecticide Act, 1968, amongst others, if he is a graduate in
Agriculture or a graduate in Science with Chemistry as one of the
subjects. Under clause 27B of the Fertilizer Control Order, 1985, no
person shall be eligible for appointment as Inspector of biofertiliser,
organic fertilizer and non-edible de-oiled cake fertilizer unless he
possesses, amongst others, a degree in agriculture or science with
chemistry /microbiology as one of the subjects. Under Rule 22 of the
Seeds Rules, 1968, a person shall not be qualified for appointment as
Seed Inspector unless he is a graduate in Agriculture.
32. Though, in the reply of the respondents, it is stated that only
ADOs having requisite qualification of B.Sc. Agriculture or degree in
Chemistry can be posted as Inspector under the Insecticide Act, 1968,
Fertilizer (Control) Order 1985 and the Seed Act, 1966, it appears that
there is no such requirement that one has to be an ADO to be
appointed as an Inspector.
33. Though classification on the basis of higher educational
qualification is permissible under our constitutional scheme, the
question that arises for consideration is as to whether in view of the
relevant Rules which govern the service conditions of the RAEO,
amendment can be held to be valid.
34. The manner in which appointment by promotion is to be
effected is laid down in 13 of the Rules of 2010. For the purpose of this
case, it may not be relevant to refer to all the sub-rules. What is
relevant is Rule 13(5) of the Rules of 2010, which reads as follows:
"13. Appointment by promotion. -
xxx xxx xxx
(5) Promotion shall be made in accordance with the
provisions of Chhattisgarh Public Service (Promotion) Rules,
2003.
xxx xxx xxx" (emphasis supplied)
35. The conditions of eligibility for promotion is prescribed in Rule
14 of the Rules of 2010 and Rule 14(2) provides that the field of
selection shall be as per the procedure prescribed by the Rules of
2003 and the Government circulars issued from time to time.
36. How the list of suitable candidates is to be prepared is laid
down under Rule 15 of the Rules of 2010. It will be appropriate to
quote Rule 15 in its entirety, which reads as under:
"15. Preparation of list of suitable candidates. -
(1) The Committee shall prepare a list of such persons as to
satisfy the conditions prescribed in Rule 14 above and as are
held by the Committee to be suitable for promotion to the
service. The list shall be sufficient to cover probable
vacancies for that calendar year.
(2) The list of suitable officers shall be prepared according to
the provisions of Chhattisgarh Public Service (Promotion)
Rules, 2003.
(3) As per the provisions of Chhattisgarh Civil Services
(General Conditions of Services) Rules, 1961 the names of
the persons included in the select list shall be arranged in
order of seniority in the service or posts specified in column
(2) of Schedule-IV at the time of preparation of each select
list.
(4) At the time of preparing the Selection List for promotion,
the criteria shall be seniority subject to fitness.
Explanation - A person whose name is included in a select
list shall have no claim to seniority over those considered in a
subsequent selection merely by the fact of his earlier
selection." (emphasis supplied)
37. Rule 16 of the Rules of 2010 lays down the aspects relating to
seniority list and Rule 17 provides for appointment to the service to be
made from the select list. Rule 17(1) reads as follows:
"17. Appointment to the service from the select list. -
(1) Appointment of the persons included in the select list shall
be made to the post borne on the cadre of the service shall
follow the order in which their names appear in the list in
accordance with the provisions of Chhattisgarh Public
Service (Promotion) Rules, 2003.
xxx xxx xxx"
38. The Rules of 2003 defines 'cadre' and 'establishment' as
follows:
"2(d) "Cadre" means strength of service or part of service
consisting of both temporary and permanent posts and does
not include employees engaged as a casual labour, work
charged, contingency paid and daily wager. Group of posts
for which a combined gradation list is separately required to
be prepared as per recruitment rules will constitute a part
cadre for this service.
(f) "Establishment" means any office of the State
Government or a local authority or a Statutory authority
constituted under any Act of the State for the time being in
force, or a University or a Company, Corporation or a Co-
operative Society in which not less than fifty one percent of
the paid up share capital is held by the State Government or
the institutions receiving grant-in-aid or any cash grant from
the State Government and includes a work charged or
contingency paid establishment but does not include the
establishment covered under Article 30 of the Constitution."
39. It is not in dispute that the department of the petitioners is an
establishment coming within the definition of establishment as provided
in the 2003 Rules. Rule 4 of the Rules of 2003 provides the basis for
promotion which reads as under:
"4. Determination of basis for promotion. - (1) Promotion
from Class IV to higher pay scale of Class IV, Class IV to
Class III, Class III to higher pay scale of Class III, Class III to
Class II, Class II to higher pay scale of Class II and Class II to
Class I posts shall be made on the basis of 'seniority subject
to fitness."
40. Rule 6(1) of the Rules of 2003, reads as under:
"6. Promotion on the basis of seniority subject to fitness. - (1)
In such cases where the promotion is to be made on the
basis of seniority subject to fitness, there shall be no zone of
consideration for all categories.
xxx xxx xxx"
41. Rule 6(1) of the Rules of 2003 provides that when promotion is
to be made on the basis of seniority subject to fitness, in such cases,
there shall be no zone of consideration for all categories.
42. Rule 5 of the Rules of 2010 provides that the classification of
service, the number of posts included in the service and the scale of
pay attached thereto shall be in accordance with the provisions
contained in Schedule I. Schedule I shows, amongst others, that both
ADO and RAEO are in Class-III (Non-Ministerial). While scale of
pay/grade pay of ADO is 5200-20200/2800, scale of pay/grade pay of
RAEO is 5200-20200/2400. Thus, promotion of RAEO to ADO is
promotion from Class-III to higher pay scale of Class-III. Rule 4 of
Rules of 2003 provides that such promotions shall be made on the
basis of seniority subject of fitness.
43. A perusal of the affidavit goes to show that separate seniority
list/gradation list of RAEOs is not maintained. Direction was issued by
letter dated 16.01.2020 issued by the Under Secretary, Government of
Chhattisgarh, Agriculture Development & Farmer Welfare and Bio-
Technology Department to make separate gradation list amongst those
two categories.
44. As noticed earlier, Rule 13(5) of the Rules of 2010 provides
that promotion shall be made in accordance with the provisions of
Rules of 2003. When Rule 4 of the Rules of 2003 in explicit terms
provides that promotion is to be made on the basis of seniority subject
to fitness and when it is established on the basis of materials on record
that only one seniority list of the RAEOs is maintained, the amendment
effected only in Schedule II by way of substitution providing that 45% of
the 90% of the posts reserved for the RAEOs shall be filled up by
Agriculture/ Agricultural Engineering/ Horticulture/ Agricultural Bio-
Technology qualified graduate and the rest 45 percent by other
graduates, without amending the substantive provisions governing
service conditions, thereby, in essence, nullifying the seniority list on
the basis of which promotion is to be effected, cannot be sustained in
law.
45. In view of the above discussions, the writ petition is allowed.
The amended entries relating to column (7) of serial No. 3 of Schedule
II of the Rules of 2010 is declared and adjudged as ultra vires to the
Rules of 2010 as well as the Rules of 2003.
46. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K.Chandravanshi)
CHIEF JUSTICE JUDGE
Amit
