Chattisgarh High Court
M.P. Ade vs State Of Chhattisgarh on 7 April, 2022
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
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
2
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 Rules of 2010 repealed the Chhattisgarh Sub-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
3
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
4
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
5
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
6
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).
7
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
8
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
9
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:
10
"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
11
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 12 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 13 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 14 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 15 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 16 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 17 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- 18 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 19 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 20 (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.21
(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.22
(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"23
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 24 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