Patna High Court
Deota Nath Tiwari And Ors. vs State Of Bihar And Ors. on 28 March, 1989
Equivalent citations: 1989(37)BLJR189
Author: N.P. Singh
Bench: N.P. Singh
JUDGMENT N.P. Singh, J.
1. This writ application has been filed on behalf of the petitioners for quashing a resolution of the State Government (Annexure-5) which was notified on 24-4-1982 and for a direction that the petitioners be appointed against the vacant posts of Agriculture Inspector or any other equivalent posts.
2. The petitioners were appointed as Village Level workers on various dates between 1963 to 1970. There being no scope for promotional avenues a scheme is said to have been launched by the Government of India for giving higher education to the Village Level workers with a view to provide them chance of promotion or absorption to higher posts. The State Government also sponsored such a scheme and encouraged such Village Level workers to get themselves admitted in B.Sc. (Agriculture course). For this purpose, according to the petitioners, advertisement was made on 23-6-1978 and pursuant to such an advertisement the petitioners applied. They were selected and admitted to the B.Sc (Agriculture course) and, in due course, they passed the B.Sc. (Agriculture) Examination from the Rajendra Agriculture University in the year 1982.
3. In the year 1978, according to the petitioners, the State Government took a decision that the Village Level workers, who had the graduate degree in Agriculture from the aforesaid University, shall be appointed as Agriculture Inspectors on preferential basis. In the year 1981, however, a resolution dated 4-11-1981 was notified by the State Government saying that uptil then unemployed Agriculture graduates used to be appointed on the basis of chain system which was being abolished and now the appointment shall be on the basis of merit on the recommendation of the Bihar Public Service Commission (hereinafter referred to as 'the Commission'). A copy of such resolution is Annexure-4.
4. It appears that by the impugned resolution dated 24-4-1982, some modification was made by the State Government in its earlier resolution aforesaid dated 4-11-1981. By impugned resolution it was said that persons who had become Agriculture graduates from the Agriculture University in the Bihar upto the year 1980 and residents of the State of Bihar who have become Agriculture graduates from any University outside the State of Bihar upto the year 1979, their appointments shall be made on the basis of chain system; but persons who have become Agriculture graduates thereafter, their appointment shall be made on the basis of the recommendation of the Commission.
5. According to the petitioners, the resolution aforesaid dated 24-4-1982 is discriminatory in nature because there was no rational basis to treat the Agriculture graduates who have passed from the Agriculture University in the State of Bihar upto 1980 as a separate class for the purpose of appointment from the persons who have become Agriculture graduates after 1980. In other words, according to the petitioners, either the chain system should have been continued even in respect of persons who become Agriculture graduates after 1980 or irrespective of the date or year of passing the B.Sc. (Agriculture) Examination, appointments should be made on the basis of the recommendation of the Commission.
6. A counter affidavit has been filed on behalf of the State. It has been pointed out that the assertion made on behalf of the petitioners that a decision had been taken by the State Government in the year 1978 to appoint Village Level Workers having B.Sc. degree to the posts of Agriculture Inspectors on preferential basis is not correct. It has been pointed out that a memorandum to that effect was placed before the Cabinet for its consideration but the same was never accepted by the Cabinet. It has been asserted that the State Government took a decision to make appointment to the posts of Agriculture Inspectors on the basis of the recommendation of the Commission. Regarding the decision of the State Government which was notified as resolution (Annexure-5), which is under challenge, it has been said that 1980 was given as a cut off year for the two procedures for appointment keeping in view the large number of unemployed Agriculture graduates who had passed B.Sc. (Agriculture) Examination before 1981.
7. From a mere reference to a copy of the document (Annexure-3) enclosed on behalf of the petitioners in support of their assertion that in the year 1978 a decision had been taken to appoint the Village Level Workers to the posts of the Agriculture Inspectors on preferential basis appears to be incorrect, because the document (Anncxure-3) is a copy of memorandum for the decision by the Cabinet which cannot be said to he the decision of the State Government. As already pointed out above, in the counter affidavit filed on behalf of the State, it has been clarified that the said proposal was not accepted by the Cabinet. As such we have to proceed on the assumption that there is no such decision of the State Government to give preference to the Village Level Workers having Agriculture graduates degree for appointment to the posts of Agriculture Inspector
8. The petitioners cannot challenge the validity of the decision which was notified by resolution dated 4-11-1981 saying that appointment shall be made on the basis of the recommendation of the Commission and no further appointments shall be made on the basis of chain system.
9. Coming to the impugned resolution dated 24-4-1982, it is difficult to accept the justification: given for such decision on behalf of the State. In view of the series of judgments of the Supreme Court, it is always open to the State Government to treat a group of persons as a separate class for the purpose of any special treatment including in matters of appointment. Any such classification shall not be violative of Articles 14 or 16 of the Constitution if they really belong to a class by themselves, I on my part do not find any rational basis to treat the persons who have passed the B.Sc. (Agriculture) Examination upto the year 1980 as a class different from the persons who have passed the same examination after 1980.
10. It is well-known that appointment on the basis of chain system is to give preference in matters of appointment with reference to the year of passing any examination or passing any qualifying test. In other words, a candidate having lower percentage of marks at the qualifying examination but having passed the basic examination shall be preferred for the purpose of appointment than the candidate who has passed the said basic examination later with higher percentage of marks. At some stage this system was introduced in different services so that the persons having secured lower percentage of marks should be employed first as they have been waiting for appointment for longer period but soon it was realised that this chain system is directly hit by Articles 14 and 16 of the Constitution. It has been repeatedly pointed out by Courts that while making appointment in public services opportunity has to be given to all persons who are eligible for being considered for such appointment and for selection the sole test is merit of the candidate. For how long such candidate is unemployed or waiting for appointment has hardly any relevance when the object of authorities entrusted with making selection of candidates for appointment to public services is to select the best among the applicants.
11. The State Government rightly by resolution dated 4-11-1981 notified that no more appointment of Agriculture graduates shall be made on the basis of chain system and thereafter appointment shall be made only on the basis of the recommendation of the Commission. I fail to understand as to how after having taken such a decision an amendment was made by the impugned resolution dated 24-4-1982 saying that for the purpose of appointment chain system shall be applicable in respect of candidates who have become Agriculture graduates upto the year 1980 and appointments shall be made of candidates who have become Agriculture graduates after 1980 on the recommendation of the Commission. In my view, this decision had no rational basis and is his by Articles 14 and 16 of the Constitution because it purports to carve out a class of persons who cannot form a class by themselves. The decision is not only discriminatory in nature, it also does not achieve any rational object. When the only rational object while selecting candidates for public services is to select the best out of the candidates available, no preferential treatment can be given to persons having inferior merit merely on the ground of their having remained unemployed for any particular period. This aspect of the matter has been examined by the Supreme Court in the case of State of U. P. and Anr. v. Ram Gopal Shukla , In that case, State Government had made Uttar Pradesh Promotion by Selection in consultation with public Service Commission (Procedure) Rules, 1970. In the year 1972, Rules 7-A and 7-B were introduced in those Rules. Under the Rules so introduced it was said that candidates in the select list of 1966 were to be appointed against substantive vacancies in preference to any candidates selected in accordance with the provisions of 1970 Rules and unless the candidates in the list were exhausted other eligible candidates were not to be considered for promotion. Because of Rule 7-A no selection was to be held unless 300 persons included in the list prepared in the year 1966 were to be absorbed, In respect of the validity of aforesaid Rules 7-A and 7-B which were statutory in nature and framed under Article 309 of the Constitution the Supreme Court said as follows:
There appears to be no rational basis for such a departure from the ordinary operation of the 1970 Rules which envisaged the preparation of a new list every year and for singling out one particular list for according preferential treatment to the persons whose names were contained therein. The classification in this case therefore cannot be said to be a reasonable classification based on intelligible differentia having a nexus to the object sought to be achieved ....There is no denying the fact that the rules regulating the conditions of service are within the executive power of the State or its legislative power under the proviso to Art. 309 but even so, such rules have to be reasonable, fair and not grossly unjust, if they are to survive the test of Articles 14 and 16 of the Constitution. A rule which contemplates that unless the list of 300 persons is exhausted no other person can he selected, obviously is unjust and it deprives other persons in the same situation of the opportunity of being considered for promotion.
12. During the pendency of this writ application some persons have been appointed on the basis of the decision of the State Government notified on 24-4-1982 (Annexure-5) and they have filed applications for being added as interveners and they were heard. From the order dated 21-1-86 it appears that while admitting this writ application it was said that any appointment or promotion made during the pendency of the writ application shall be subject to the result of the writ application. On behalf of such intervenors it was pointed out that due to large number of persons who had become Agriculture graduates prior to 1981 but had remained unemployed the State Government had taken a decision to make appointments on the basis of chain system. According to them, appointment with reference to the year of passing the B.Sc. (Agriculture) Examination has a rational basis and cannot be said to be discriminatory or arbitrary. For the reasons given above, it is not possible to hold the appointment in any public service, on the basis of chain system, as rational and not hit by Articles 14 and 16 of the Constitution.
13. The Counsel appearing for such intervenors purported to distinguish the aforesaid judgment in the case of State of V P. and Anr. v. Ram Gopal Shukla (supra) on the ground that there the list of 300 candidates who had to be appointed first on preferential basis was in connection with appointment by promotion and as such that shall not be applicable in cases of the Village Level Workers who have to be selected on preferential basis for the purpose of appointment to the posts of Agriculture Inspector In my view, that will not make any difference whether appointments are being made by promotion or by direct recruitment. Once such appointments are being made applying the chain system, it is bound to be discriminatory in nature having no rational basis for giving preference to persons having lesser merit over the persons who have better merit merely on the ground that they have passed the basic examination earlier in point of time and have been waiting for such employment--whether it is by direct recruitment or promotion.
14. Accordingly, this writ application is allowed to the extent that the resolution dated 24-4-1982 (Annexure-5) is quashed. However, it is dismissed as far the relief prayed for on behalf of the petitioners is concerned that they be appointed to the posts of the Agriculture Inspectors on preferential basis.