Citation : 2025 Latest Caselaw 75 Sikkim
Judgement Date : 29 August, 2025
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 29th August, 2025
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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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
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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.
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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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