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Mani Kumar Rai And Ors vs State Of Sikkim And Ors
2025 Latest Caselaw 75 Sikkim

Citation : 2025 Latest Caselaw 75 Sikkim
Judgement Date : 29 August, 2025

Sikkim High Court

Mani Kumar Rai And Ors vs State Of Sikkim And Ors on 29 August, 2025

Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
             THE HIGH COURT OF SIKKIM : GANGTOK
                               (Civil Extraordinary Jurisdiction)
                                 DATED : 29th August, 2025
-------------------------------------------------------------------------------------------------------
   SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
-------------------------------------------------------------------------------------------------------
                                   WP(C) No.03 of 2021
                Petitioners              :       Mani Kumar Rai and Others

                                                           versus

                Respondents              :       State of Sikkim and Others

                            Application under Article 226 of
                               the Constitution of India
        -----------------------------------------------------------------------------------------
          Appearance
              Mr. A. Moulik, Senior Advocate with Mr. Ranjit Prasad and Ms. Neha
              Kumari Gupta, Advocates for the Petitioners.
              Mr. Zangpo Sherpa, Additional Advocate General with Mr. Sujan
              Sunwar, Assistant Government for the State-Respondents.
        -----------------------------------------------------------------------------------------
                                        JUDGMENT

Meenakshi Madan Rai, J.

1. The Petitioners were employed in the Respondent No.2,

Department, of the Respondent No.1 (State of Sikkim), having

been appointed variously through the years 1985 to 2012 as

‗Mali(s)'. They are aggrieved by the fact that, although they have

completed about eight to thirty-five years of service, in the same

post (depending on their date of appointment), no promotional

avenues are afforded to them whatsoever, while at the same time,

persons in the posts of Field Assistants, which are posts equivalent

to that of ‗Mali', held by the Petitioners, and discharging similar

duties have been promoted as Lower Division Clerks (LDC). They

inter alia seek the following reliefs;

(i) Rule upon the Respondents and each of them to show-cause as to why the Petitioners shall not be promoted either as Village Level Workers (VLW) or as Lower Division Clerk (LDC) with retrospective effect from the time

Mani Kumar Rai and Others vs. State of Sikkim and Others 2

their counterparts/other ‗Malis'/Field Assistants were promoted;

(ii) A writ or order or direction that the posts of Malis be treated as a member of the 1984 Service Rules and promote the Petitioners accordingly;

(iii) A writ or order or direction that the post of Field Assistant and ‗Mali' are equivalent post and therefore to order redesignation of the post of ‗Mali' as Field Assistant and that, the Petitioners therefore be made members of the relevant service rules for promotion as VLWs;

(iv) An alternative prayer has also been sought for viz., a writ or order or direction that the Petitioners holding the post of ‗Malis' be promoted as Field Assistants with retrospective effect from the time they were found eligible for promotion and thereafter to promote them as VLW w.e.f the date their Juniors in the rank of Field Assistant were promoted as VLW;

(v) A writ or order or direction that the posts held by the Petitioners being equivalent to the post of Field Assistants be promoted as VLW with all service benefits;

(vi) A writ or order or direction that the post of ‗Mali' be incorporated as a cadre post under the 2001 Service Rules and promotional avenue may be ordered to be provided in the Service Rules for the persons holding the post of ‗Mali';


                   (vii)    A writ or order or direction that Rule 2(2) and
                            Rule 2(3) of the Sikkim Sub-ordinate
                            (Ministerial     and     Executive)     Service

(Amendment) Rules, 2020, requiring Class X pass qualification and thirty years continuous service for Group ―D‖ employee for promotion is bad and hence to set aside the retrospective provision from Rule 2(2) and Rule 2(3) of Amended Rules.

2. The Petitioners case is that, during the year 1976,

employees working under the Agriculture and Horticulture

Departments were governed by different Service Rules. Now, both

departments fall under the ambit of Sikkim State Agriculture

Service Rules, 1994 (hereinafter, ―Agriculture Service Rules,

1994‖), which does not include the post of ‗Mali', despite ‗Malis'

being employed in the Horticulture Department. Similarly, the

Sikkim State Subordinate Agriculture Service Rules, 2001

Mani Kumar Rai and Others vs. State of Sikkim and Others 3

(hereinafter, ―Subordinate Agriculture Service Rules, 2001‖) has

left out the post of ‗Mali', but includes the post of Village Level

Workers (VLW's). The Sikkim Subordinate (Ministerial and

Executive) Service Rules, 1984 (hereinafter, the ―Ministerial

Service Rules, 1984‖) amended in 2001 and 2020, governs all

Group ―C‖ and ―D‖, employees of all departments of the

Respondent No.1, including ‗Malis', who fall in Group D category of

Government employees. The salaries of both ‗Malis' and Field

Assistants were initially fixed in the pay scale of Rs.2850/- and

Grade Pay of Rs.2250-4170/-. However, in the year 2012, the

Grade pay of Field Assistants was enhanced to Rs.2300/- from

Rs.2250/- excluding ‗Malis' from such enhancement, sans reason.

The Petitioners claim that they deserve to be promoted under the

Subordinate Agriculture Service Rules, 2001 as VLWs' since they

perform similar duties as Fieldman and Field Assistants. Hence,

the prayers in the Writ Petition.

(i) Learned Senior Counsel for the Petitioners canvassed

the contention that, on account of the enhancement in the Grade

Pay of Field Assistants, a disparity has arisen amongst the ranks of

Field Assistants and ‗Malis', who are essentially tasked with similar

works. The unamended Subordinate Agriculture Service Rules,

2001, provided for filling up the post of VLW, by 100% direct

recruitment. The Sikkim State Subordinate Agriculture Service

(Amendment) Rules, 2011 (hereinafter, ―Subordinate Agriculture

(Amendment) Rules, 2011‖), provides for 85% by direct

recruitment, 10% by promotion from Senior Field

Assistant/Fieldman and the remaining 5% by promotion from

Fieldman/Field Assistants, who are Class X pass. The catch in the

amended rules is that, none of the Petitioners have passed Class X

Mani Kumar Rai and Others vs. State of Sikkim and Others 4

and would thereby never be able to attain the post of VLW. This

circumstance necessitates a declaration to the effect that the post

of ‗Mali' is equivalent to that of Field Assistant to enable them to

obtain promotion under the said Rules.

(ii) It was the next contention that, the Petitioners have

been discriminated even against labourers who were appointed

initially on Muster Roll (MR), and have been absorbed as Field

Assistants, ignoring the Petitioners and depriving them of such

designation. It was emphasized that ninety-eight members from

the Sikkim Subordinate (Ministerial and Executive) Service

(Amendment) Rules, 2001 (hereinafter, the ―Ministerial Service

(Amendment) Rules, 2001), after completing five years of service

have been promoted as VLWs; vide Order dated 08-03-2019,

despite being junior to the Petitioners. A representation was

addressed to the Chief Minister on 27-07-2019 in vain, although

endorsements in the File Noting reveal that, the department

officials were in principle in favour of redesignation of the twenty-

two posts of ‗Malis' as ―Field Assistants‖. That, in the Notification

bearing No.21/GEN/DOP, dated 01-07-2020, amendment to the

Ministerial Service Rules, 1984, only those Group ―D‖ employees

having Class X pass qualification, have been given a chance for

promotion in the 10% category, but it is undisputed that a majority

of the ‗Malis' falling under Group ―D‖ category have not passed

Class X. Opportunity for promotion to 5% has been afforded on

completion of thirty years of continuous service, provided they also

fulfill the requisite educational qualification, thus depriving the

Petitioners, who do not have such educational qualification, of

promotion, in violation of Articles 14, 16, 19, 21 and 300A of the

Constitution of India. That, the Petitioners legitimate expectation

Mani Kumar Rai and Others vs. State of Sikkim and Others 5

to be promoted to the higher posts is in vain. Fortifying his

submissions that, the Petitioners ought to be granted avenues for

promotion, reliance was placed on Food Corporation of India and

Others vs. Parashotam Das Bansal and Others and Dr. Ms. O. Z. Hussain

vs. Union of India and Others .

3. Learned Additional Advocate General while resisting the

claims advanced by the Petitioners, sought to clarify that the ‗Malis'

fall under Group ―D‖ employees of the State Government and

promotional avenues for those without educational qualification is

covered by the Ministerial Service Rules, 1984, as amended vide

Notification bearing No.21/GEN/DOP, dated 01-07-2020.

(i) The post of the Field Assistant comes under Group ―C‖

unlike that of ‗Mali', which falls under Group ―D‖ category of

employees.

(ii) Admitting that the scale of pay of the Field Assistants

was revised it was submitted that, the Petitioners claim promotion

with retrospective effect as VLW or LDC, at par with their

counterparts/other ‗Malis'/Field Assistants but have failed to

implead those promoted persons as necessary parties, on which

account solely the Writ Petition is liable to be dismissed as not

maintainable.

(iii) That, the Petitioners do not qualify for promotion as

VLW's as the Notification bearing No.458/GEN/DOP, dated 27-07-

2011, the Subordinate Agriculture (Amendment) Rules, 2011,

mandates educational qualification of Class XII pass, with

Bioscience from a recognized board. The selected candidate is also

to complete a diploma course in Agriculture/Horticulture Science

within three years of appointment as VLW.

(2008) 5 SCC 100

AIR 1990 SC 311

Mani Kumar Rai and Others vs. State of Sikkim and Others 6

(iv) The post of LDC as per the Sikkim Subordinate

(Ministerial and Executive) Service (Amendment) Rules, 2020

(hereinafter, the ―Ministerial Service (Amendment) Rules, 2020‖),

provides for 10% to be filled up by promotion from amongst Group

―D‖ employees, who are Class X pass and have completed four

years of continuous service, through limited departmental

examination, subject to availability of vacancy. 5% of the posts of

LDC are however to be filled up by promotion from Group ―D‖

employees, who have completed thirty years of continuous service.

Such promotion for 5% is based entirely on seniority.

(v) It was further clarified that, in the absence of specific

avenues for promotion, the Office Memorandum bearing

No.M(161)/6908/GEN/DOP, dated 25-04-2011, provides for

―Assured Career Progression‖ (ACP) Scheme for State Government

employees, whereby financial benefits are granted to those

employees who remain in one post sans promotion, after every ten

years, for three terms of service i.e., a total of thirty years.

(vi) Respondent No.1 appointed thirteen senior-most

Muster Roll Fieldworkers as Field Assistants who lacked the

educational qualification of Class X pass by duly relaxing the rules,

which power the Government is clothed with, after Respondent

No.1 provided the list of such eligible personnel vide Office Order

bearing No.759/FSAD/ADM, dated 11-08-2004.

(vii) On 29-07-2005, Respondent No.1 issued a second

Office Order No.139/FSAD/ADM, dated 29-07-2005, appointing ten

senior-most Muster Roll Fieldworkers as Field Assistants.

(viii) The Respondent No.4 made a request to Respondent

No. 2, vide letter dated 01-07-2013, to furnish the list of Group ―D‖

employees possessing Class X pass certificate and Group ―D‖

Mani Kumar Rai and Others vs. State of Sikkim and Others 7

employees who had attained Grade-I post with thirty years of

service. These details were accordingly furnished on 19-07-2013.

(ix) On 19-02-2014, the Respondent No.4 promoted the

aforementioned Group ―D‖ employees vide Office Order of the

same dates as LDC's in the Sikkim Subordinate (Ministerial &

Executive) Service Rules, Pay Band-I of Rs.5200-20200/- and

Grade Pay of Rs.2600/- in an officiating capacity with immediate

effect. The Petitioners did not challenge the lists so furnished as

detailed above.

(x) Vide Office Order bearing No.336/GEN/DOP, dated 26-

09-2018, one hundred and ninety three Group D employees with

Class X pass educational qualification were promoted as LDC in the

Sikkim Sub-ordinate (Ministerial & Executive) Service Rules, in

Level 7 of the Pay Matrix, in an officiating capacity with immediate

effect.

(xi) Denying the arguments advanced alleging arbitrary

acts of the State Government, it was contended that the Petitioners

have been granted ACP as and when eligible and where they fulfill

the requisite qualifications as per rules, necessary promotions have

been afforded to them. The allegation that the Respondents have

redesignated the post of ‗Mali' as Field Assistant to which post one

Buddha Bir Mangar was promoted in 2001 as also one Phip Raj

Subba in the year 2008 cannot be countenanced as they have not

been impleaded as parties. Hence, the Writ Petition deserves no

consideration and ought to be dismissed. To fortify his

submissions reliance was placed on A. K. Bhatnagar and Others vs.

Union of India and Others , wherein the Supreme Court has held that

there cannot be redesignation of a particular post, (in the present

(1991) 1 SCC 544

Mani Kumar Rai and Others vs. State of Sikkim and Others 8

case such as ‗Mali'), when rules already cover them and provision

is made for their upward movement. Further, reliance was also

placed on Inder Singh and Others vs. Vyas Muni Mishra and Others4.

That, the State is not debarred by way of reasonable classification

in terms of educational qualification for which reliance was placed

on Babu Verghese and Others vs. Bar Council of Kerala and Others5 and

The State of Jammu and Kashmir vs. Shri Triloki Nath Khosa and

Others .

4. Having given due consideration to the submissions of

Learned Counsel for the parties, this Court is to determine;

(i) whether the Petitioners have been short changed as

claimed by them, by lack of promotional avenues, the

mandatory requirement of educational qualification of

Class X, for promotion, being the drawback for them;

and

(ii) by the failure of the State-Respondents to redesignate

the post of ‗Mali' as Field Assistant.

5. From a perusal of the averments of the parties and the

submissions advanced before this Court, it emerges that;

(i) The Petitioners fall in ‗Group D' category of

Government employees in various Government

departments and are governed by the Ministerial

Service Rules of 1984 amended from time to time viz.,

29-12-2001 and 01-07-2020, vide Notifications bearing

No.100/GEN/DOP and No.21/GEN/DOP respectively and

not by any of the Agriculture Service Rules (supra).

1987 (Supp) SCC 257

(1999) 3 SCC 422

(1974) 1 SCC 19

Mani Kumar Rai and Others vs. State of Sikkim and Others 9

(ii) The post of Field Assistant which falls in category ‗C' of

Government employees, is governed by the Sikkim

Subordinate Agriculture Service (Amendment) Rules,

2011 and the Department of Agriculture, Respondent

No.1 is the cadre controlling authority, vested with

control over the services under the said rules as

amended from time to time.

(iii) The post of Field Assistant is the feeder post, to the

promotional post of VLW, under the Subordinate

Agriculture Service (Amendment) Rules, 2011. The

percentage of direct recruitment to the said post,

promotion and seniority, have been detailed in the said

Subordinate Agriculture Service (Amendment) Rules,

2011. Admittedly, the Agriculture Rules (supra) do not

cover the post of ‗Mali'.

(iv) In terms of the amendment to the said Rules, vide

Notification bearing No.458/GEN/DOP, dated 27-07-

2011 (Annexure P7), the Subordinate Agriculture

Service (Amendment) Rules, 2011, the requisite

qualification for appointment to the post of VLW is

Class XII pass, with Bioscience from a recognized

board. A candidate selected to the post of VLW is

required to complete diploma course in

Agriculture/Horticulture science, within three years of

appointment as VLW.

(v) Vide Office Order bearing No.336/GEN/DOP, dated 26-

09-2018, issued by the Respondent No.4, Group D

employees having Class X passed educational

qualification were given promotion as LDC in Level 7 of

Mani Kumar Rai and Others vs. State of Sikkim and Others 10

the Pay Matrix and those without such qualification

were also promoted by Respondent No.4 by duly

relaxing the rules.

On pain of repetition, it emerges with clarity that, the post of

the Petitioners viz., ‗Mali' is a Group D category post, which falls

within the Ministerial Service Rules, 1984. Under Rule 10 of the

Ministerial Service Rules, 1984, the Government is clothed with

powers to relax any of the provisions of the Rule with respect to

any class or category of person to any post which was thus

exercised.

6. Schedule II of the Ministerial Service Rules, 1984,

referred to above, includes inter alia, the method of recruitment to

the post of Lower Division Clerk/Record Keeper/Diarist, which is

extracted hereinabelow as follows;

"SCHEDULE II Rules for the future maintenance of the Service (See Rule 7)

Name of the post Method of recruitment Eligibility conditions

.........................................................................................................



                              Grade IV
                              i. Lower Division    By           Direct   Age limit - 24 years
                              Clerk/Record         recruitment           (For Govt. servants
                              Keeper/Diarist       through       open    upto 28 years)
                                                   Competitive           Qualification - (i)
                                                   Examination.          Class X examination
                                                                         passed       of    a
                                                                         recognized Board.

                                                                         (ii) Minimum speed
                                                                         of 15 words per
                                                                         minute in typing.

                                                                               Provided that a
                                                                         person            not
                                                                         possessing the said
                                                                         qualification       in
                                                                         typing      may    be
                                                                         appointed subject to
                                                                         the condition that he
                                                                         will not be eligible
                                                                         for confirmation in
                                                                         the grade till he
                                                                         acquires a minimum
                                                                         speed of 20 words
                                                                         per minute in typing.

              Mani Kumar Rai and Others vs. State of Sikkim and Others                  11


                                                                         (iii) Must be able to
                                                                         converse in one of
                                                                         the     language    -
                                                                         Nepali,    Sikkimese,
                                                                         Bhutia, Lepcha or
                                                                         Limbu.


                                                                         (iv) Must have the
                                                                         knowledge of culture
                                                                         and    tradition  of
                                                                         Sikkim.


(i)           The provision pertaining to Grade IV and promotion to

the   said    post     was      amended          vide     the     Ministerial   Service

(Amendment) Rules, 2001, dated 29-12-2001, which reads as

follows;

"................................................................................

GOVERNMENT OF SIKKIM DEPARTMENT OF PERSONNEL, ADM. REFORMS & TRAINING GANGTOK, SIKKIM

No. 100/GEN/DOP Dated: 29.12.2001

NOTIFICATION

In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Sikkim is hereby pleased to make the following rules further to amend the Sikkim Subordinate (Ministerial and Executive) Service Rules, 1984, namely :-

1. (1) These rules may be called the Sikkim Subordinate (Ministerial and Executive) Service (Amendment) Rules, 2001.

(2) They shall come into force at once.

2. In the Sikkim Subordinate (Ministerial and Executive) Service Rules 1984, in Schedule II, under Item Grade IV, the following shall be substituted, namely:-

"Lower (1) 85% by direct Age limit: 18-30 years upper Division recruitment through age limit is relaxable by 5 Clerk/Record open competitive years in case of SC/ST Keeper/Diarist examination. candidates and 3 years for /Typist OBC candidates. Upper age limit is also relaxable by 4 years for Govt. Servants.

Qualification :

(i) Class X examination Passed of recognized Board.

(ii) Minimum speed of 15 words per minute in typing.

Provided that a person not possessing the said qualification in typing may be appointed subject to the conditions that he will be eligible for confirmation in the grade till he acquires a minimum speed of 20 words per minute in typing.

Mani Kumar Rai and Others vs. State of Sikkim and Others 12

(iii) Must be able to converse in one of the languages-

                                                           Nepali,     Sikkimese-Bhutia,
                                                           Lepcha or Limboo.
                                                           (iv)     Must     have    the
                                                           knowledge of culture      and
                                                           traditions of Sikkim.


                          (2) 5% by promotion of           Grade ‗D' employees with
                          the basis of merit-cum-          continuous service in Grade I
                          seniority from amongst           post.
                          Group ―D' employees
                          holding Grade I post.
                                       And

                          (3) 10% by promotion             Grade ‗D‖ employees having
                          through         Limited          Class X examination passed
                          Departmental                     from a recognized Board
                          Competitive                      with minimum speed of 15
                          Examination        from          words per minute in Typing."
                          amongst     Group    ‗D'
                          employees.

                               BY ORDER AND IN THE NAME OF THE GOVERNOR.
                                                                      Sd/-
                                                              R. S. BASNETT, SCS
                                             SECRETARY TO THE GOVT. OF SIKKIM,
                                         DEPTT. OF PERSONNEL, A.R. AND TRAINING

............................................."

(ii) It was further amended on 01-07-2020, as follows;

"................................................................................

                                   GOVERNMENT OF SIKKIM
                                 DEPARTMENT OF PERSONNEL
                                      GANGTOK, SIKKIM

       No. 21/GEN/DOP                                                    Dated: 1/7/20

                                             NOTIFICATION

In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Sikkim hereby makes the following rules further to amend the Sikkim Subordinate (Ministerial and Executive) Service Rules, 1984, namely :-

Short title and 1. (1) These rules may be called the Sikkim commencement Subordinate (Ministerial and Executive) Service (Amendment) Rules, 2020.

(2) They shall come into force at once.

Amendment of 2. In the Sikkim Subordinate (Ministerial and Schedule-II Executive) Service Rules, 1984, in SCHEDULE-II, under Grade-IV, for clauses (2) and (3), under the heading ―Method of Recruitment‖ the following clauses shall be substituted, namely:-

(2) 10% by promotion from amongst Group ‗D' employees who are Class X Passed from recognized Board and have completed 4 (four) years of continuous service in Group ‗D' through Limited Departmental Examination subject to availability of vacancy.

Mani Kumar Rai and Others vs. State of Sikkim and Others 13

(3) 5% by promotion from Group ‗D' employees who have completed 30 (thirty) years of continuous service on the basis of seniority.

By order and in the name of the Governor.

Sd/-

( Tashi Cho Cho) SCS SPECIAL SECRETARY TO THE GOVERNMENT, DEPARTMENT OF PERSONNEL (File No.GOS/DOP.III/2019/821-PT-II) ............................................................"

(iii) As clarified by Learned Additional Advocate General

Grade-I post means, a Group D employee, who has been in

continuous service in the same post for thirty years. Thus, the

amended rule as extracted hereinabove made promotional

provision for Group D employees, depending upon their educational

qualification. 85% of recruitment to the post of LDC would be by

direct recruitment, through open competitive examination and

mandates a Class X pass educational qualification. 10% by

promotion through limited departmental examination from

amongst Group ―D‖ employees with Class X pass educational

qualification. 5% provision is for promotion for those employees,

from Grade-I, of Group D category. For the said 5% supra, there

is no requirement of the mandatory educational qualification of

Class X pass and the promotion is solely on the basis of the Group

D employees having been in continuous service in Grade-I for

thirty years on the basis of seniority. Consequently, the arguments

of Learned Senior Counsel for the Petitioners, on the aspect of lack

of promotional avenues, in light of the above discussions, cannot

be sustained.

(iv) It is also seen that the Agriculture Service Rules, 1994,

does not make provision for the appointment of ‗Mali'. Notification

bearing No.23/GEN/DOP dated 11-08-1994, of the Respondent

Mani Kumar Rai and Others vs. State of Sikkim and Others 14

No.4 indicates that, the posts prescribed therein are enumerated in

Schedule I and II and do not include ‗Mali' or Group D employees.

(v) The Subordinate Agriculture Service Rules, 2001, are

rules to regulate the service of VLW and Inspector in the

Agriculture Department, issued vide Notification bearing

No.58/GEN/DOP, dated 06-01-2001. A perusal of the said rules

also makes it apparent that the position, strength, grades and

scale of pay are included in Schedule I and II of the Rules. The

Rules and Schedules do not include the post of ‗Mali', although it

may be mentioned herein that promotion to a VLW was 100% by

direct recruitment, till it was amended on 27-07-2011, vide

Notification bearing No.458/GEN/DOP, under column 7 of Schedule

II, which provides for 100% by direct recruitment to the post of

VLW as follows;

"................................................................................

GOVERNMENT OF SIKKIM DEPTT. OF PERSONNEL, ADM. REFORMS, TRAINING AND PUBLIC GRIEVANCE GANGTOK

No. 458/GEN/DOP Dated: 27.07.2011

NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Sikkim hereby makes the following rules further to amend the Sikkim State Subordinate Agriculture Service Rules, 2001, namely :-

1. (1) These rules may be called the Sikkim State Subordinate Agriculture Service (Amendment) Rules, 2011.

(2) They shall come into force at once.

2. In the Sikkim State Subordinate Agriculture Service Rules, 2001, in Schedule II against serial number 1 -

(i) Under the column ―5‖, for existing entries under clause (1), the following shall be substituted namely:

―(1) Class XII passed with Bio-Science from recognized Board. The successful candidates have to complete Diploma course in Agriculture/Horticulture Science within three years of appointment.‖

Mani Kumar Rai and Others vs. State of Sikkim and Others 15

(ii) Under the column ―7‖, for existing entries, the following shall be substituted namely:-

                                                (i)      85% by direct recruitment.
                                                (ii)     10%      by     promotion      of
                                                         Fieldman/Field Assistants on
                                                         seniority basis against the total
                                                         number of vacancies and
                                                (iii)    5%     by     promotion    of
                                                         Fieldman/Field Assistants who
                                                         has     passed     class    X
                                                         examination by interview on
                                                         merit basis against the total
                                                         number of vacancies.
                               By order and in the name of the Governor.
                                                   Sd/-
                                            ( Dipa Basnet ),

ADDITIONAL SECRETARY TO THE GOVERNMENT, DEPTT. OF PERSONNEL, ADM. REFORMS, TRAINING & PUBLIC GRIEVANCES ............................................."

(vi) In Column 5 (supra) the educational qualification

prescribed was Class XII pass with Bioscience from recognized

board. It is mandated that the selected candidate should obtain

diploma in agriculture or horticulture within three years of joining

service. The posts of Field Assistant were set apart from the post

of ‗Mali' as they were required mandatorily to have higher

educational qualification of Class X pass. Those who remained

without Class X pass qualification continue to be designated as

‗Mali' under the Ministerial Service Rules, 1984.

7. It is not in dispute that the Government, vide separate

rules has provided for the ACP Scheme, which envisages placement

in higher pay scale/grant of financial benefit, through financial

upgradation of a Government servant, when he remains in one

post without promotion or promotional avenues. This is with the

aim of dealing with the problem of stagnation and hardship faced

by employees, including economic hardship. In order to mitigate

such circumstances, in case of acute stagnation in any post, the

Government has provided for three financial upgradations under

the ACP Scheme, to Government employees, including Group D

Mani Kumar Rai and Others vs. State of Sikkim and Others 16

employees once, on completion of every ten years of service. ACP

is thus granted three times in the entire career of an employee on

lack of promotional avenues.

(i) Learned Senior Counsel for the Petitioners has placed

reliance on Parashotam Das Bansal (supra) to bolster his case,

however this is distinguishable from the case and circumstances of

the instant case. In the said case, the Respondents were

engineering staff in the Food Corporation of India and the services

of the engineers were necessary for maintenance of godown and

other structures. The Appellants therein were aggrieved by the

lack of promotional avenues. The Supreme Court noted that when

employees are denied an opportunity of promotion for long years

(in this case thirty years) on the ground that they fell within a

category of employees excluded from promotional prospect, the

superior Court will have the jurisdiction to issue necessary

direction. It was observed that if there is no channel of promotion

in respect of a particular group of officer resulting in stagnation

over the years, the Court may issue direction to make a scheme for

such purposes. There was no promotional avenues nor scheme for

ACP in the said case. The Supreme Court thus issued directions to

the Appellants Corporation, to create avenues for promotion of the

Respondents.

(ii) Learned Senior Counsel for the Petitioners reliance on

Dr. Ms. O. Z. Hussain (supra), in my considered view is not even

relevant to the instant issue, as it deals with a Group A Scientists

with Masters degree in the relevant discipline. They were

aggrieved with discriminating treatment meted out to them vis-a-

vis similarly educated persons, on account of which they were

stagnating in service. Their contention was that the promotional

Mani Kumar Rai and Others vs. State of Sikkim and Others 17

posts were all being filled by direct recruitment with no

promotional channel provided to the Petitioners. The Supreme

Court ruled that appropriate rules be framed to provide them with

suitable promotional avenues. As already said, this case is

distinguishable from the matter at hand as the Petitioners although

not promoted to the next higher post have not been deprived of

financial growth by way of granting ACP.

(iii) Learned Additional Advocate General for his part, relied

on A. K. Bhatnagar (supra), the matter that was taken up for

consideration therein was with regard to inter se seniority between

the direct recruits alone. The rule framed for the purpose indicated

that the inter se seniority of recruits of one year would be on the

basis of merit. It was relevantly held as follows;

"13. On more than one occasion this Court has indicated to the Union and the State Governments that once they frame rules, their action in respect of matters covered by rules should be regulated by the rules. The rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution are solemn rules having binding effect. Acting in a manner contrary to the rules does create problem and dislocation. Very often government themselves get trapped on account of their own mistakes or actions in excess of what is provided in the rules. We take serious view of these lapses and hope and trust that the government both at the Centre and in the States would take note of this position and refrain from acting in a manner not contemplated by their own rules. There shall be no order as to costs."

As rightly pointed out by Learned Additional Advocate

General rules have already been framed under Article 309 of the

Constitution of India which have a binding effect on Government

employees including the Petitioners who do not have the option of

selecting Rules, as they fall within the ambit of the Ministerial

Service Rules, 1984.

(iv) In Triloki Nath Khosa (supra) also relied on by Learned

Additional Advocate General, the Supreme Court was dealing with

Mani Kumar Rai and Others vs. State of Sikkim and Others 18

a Petition claiming violation under Articles 14 and 16 of the

Constitution of India and educational qualification as a basis of

qualification for promotion, the Supreme Court went on to hold

that;

"34. On the fact 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 ........................................ Efficiency which comes in the trail of higher mental equipment can reasonably be attempted to be achieved by restricting promotional opportunities to those possessing higher educational qualifications. And we are concerned with the reasonableness of the classification, not with the precise accuracy of the decision to classify nor with the question whether the classification is scientific. Such tests have long since been discarded. In fact American decisions have gone as far as saying that classification would offend against the 14th Amendment of the American Constitution only if it is ―purely arbitrary, oppressive or capricious‖ [Joseph Radice v. People of the State of New York, 68 L. Ed. 690, 695American Sugar Ref. Co. v. Louisiana, 45 L. Ed. 102, 103.] and the inequality produced in order to encounter the challenge of the Constitution must be ―actually and palpably unreasonably and arbitrary‖. [68 L. Ed. 690, 695; Arkansas Natural Gas Co. v. Railroad Commission 67 L. Ed. 705, 710.] We need not go that far as the differences between the two classes -- graduates and diploma-holders -- furnish a reasonable basis for separate treatment and bear a just relation to the purpose of the impugned provision.

35. Educational qualifications have been recognized by this Court as a safe criterion for determining the validity of classification. In State of Mysore v. P. Narasing Rao [AIR 1968 SC 349 : (1968) 1 SCR 407 :

(1968) 2 Lab LJ 120.] where the cadre of Tracers was reorganized into two, one consisting of matriculate Tracers with a higher scale of pay and the other of non-matriculates in a lower scale, it was held that Articles 14 and 16 do not exclude the laying down of selective tests nor do they preclude the Government from laying down qualifications for the post in question. Therefore, it was open to the Government to give preference to candidates having higher educational qualifications. In Ganga Ram v. Union of India [(1970) 1 SCC 377, 382 : (1970) 3 SCR 481, 488] it was observed that ―The State which encounters diverse problems arising from a variety of circumstances is entitled to lay down conditions of efficiency and other qualifications for securing the best service for being eligible for promotion in its different departments.‖ In Union of India v. Dr (Mrs.) S.B. Kohli [(1973) 3 SCC 592 :

1973 SCC (L&S) 136.] a Central Health Service Rule requiring that a professor in Orthopaedics must have a post-

Mani Kumar Rai and Others vs. State of Sikkim and Others 19

graduate degree in the particular speciality was upheld on the ground that the classification made on the basis of, such a requirement was not ―without reference to the objectives sought to be achieved and there can be no question of discrimination‖. The argument that a degree qualification was not the only criterion of suitability was answered laconically as ―strange‖.

.................................................................................................

50. We are therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The Rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate Articles 14 and 16 of the Constitution and must be upheld." [emphasis supplied]

8. In the wake of the observations of the Supreme Court

(supra) and in consideration of the facts and circumstances of the

instant case, Prayer No.(ii) of the Petitioners already extracted

hereinabove appears to be otiose as the Petitioners are already

covered by the Ministerial Service Rules, 1984, as also averred by

them. Statutory provisions cannot be supplanted to suit the

Petitioners at their whims. Redesignating ‗Malis' as Field Assistants

would open a Pandora's Box as it would grant the Petitioners scope

to claim promotion to the post of VLW(s), sans the requisite

educational qualifications. All that this Court can suggest to the

Respondents No.1, 2 and 4 is to alter the nomenclature from ‗Mali'

to ‗Plantsman' or ‗Landscaper' as the nomenclature of ‗Mali',

appears to be one of the root causes for the disgruntlement of the

Petitioners, apart from the foregoing discussions. Sanctity for

education is imperative. Mandating educational qualification for

various posts in Government employment is not an arbitrary act of

the Government nor is it unjust. Boundaries can undoubtedly be

drawn on the basis of educational levels for appointment to various

posts in the Government departments. There cannot be a push

and shove for such posts, where applicants are not adequately

Mani Kumar Rai and Others vs. State of Sikkim and Others 20

educationally equipped, every post is required to be manned by a

person who is qualified for it in terms of education. If such

boundaries are not drawn, there would be anarchy and utter chaos

in society.

9. In conclusion, I find that no injustice or discrimination

has been meted out against the Petitioners in the instant matter,

besides the lack of promotional avenues has been recompensed by

the ACP Scheme.

10. The Petition being without merit, deserves to be and is

accordingly dismissed.

11. Pending applications, if any, also stand disposed of.

( Meenakshi Madan Rai ) Judge 29-08-2025

Approved for reporting : Yes

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