IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 2571 of 2008. Reserved on : 28.10.2010. Decided on: 24.11.2010. Surender Kumar and Others. …Petitioners. -Versus- State of Himachal Pradesh and others. .…Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioners : Mr. Dilip Sharma, Advocate. For respondents No. 1 and 2. : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. For respondents No. 3 and 4. : Mr. Lokender Thakur, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Mr. Dilip Sharma, learned counsel for the petitioners, during the course of hearing has confined his submissions to relief No. 3 only, which reads as under: “3. The seniority should be counted from the date of improvement their qualifications by the in service diploma holder VEOs and not from their initial appointment as Diploma holder while the seniority of the applicant who are direct agriculture graduate should be counted from their date of joining.” 2. Material facts necessary for adjudication of this petition are that the petitioners were appointed as Village 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - Extension Officers on the recommendations of the Himachal Pradesh Public Service Commission after their names were sponsored by the respective employment exchanges. They were possessing the qualification of B.Sc. (Agriculture) at the time of their appointment. 3. Case of the petitioners, in a nut-shell, is that the seniority of Village Extension Officers is to be counted from the date of their acquiring the qualification of B.Sc. and not from the date of initial appointment. In other words, their submission is that qua Village Extension Officers, who were appointed on the basis of qualification of one year diploma in Agriculture and have undergone B.Sc. condensed course later on, their seniority should be counted for the purpose of promotion from the date they have obtained the qualification of B.Sc. (Agriculture). The similarly situate persons have filed O.A. No. 7 of 1993 before the learned erstwhile Himachal Pradesh Administrative Tribunal. The same was disposed of by the learned Tribunal on 24.04.1993. In sequel thereto, the respondent No. 2 has passed the order on 28.04.1993, whereby he has recommended that the seniority of Village Extension Officers should be counted from the date of their acquiring the qualification of B.Sc. (Agriculture) for further promotion. Petitioners and similarly situate persons also filed O.A. No. 1978 of 1993 before the learned Tribunal. Learned Tribunal passed the interim orders in this O.A. on 22.10.1993, whereby the respondent-State was directed to finalize the Recruitment and Promotion Rules within a period of three months. In sequel thereto, the respondent-State has framed the Recruitment and Promotion Rules under Article 309 of the Constitution of India - 3 - called the “Himachal Pradesh Agricultural Service (Class-I Gazetted) Non-Ministerial Recruitment and Promotion Rules, 1995”. Petitioners are aggrieved primarily by Rule 11 (i) & (ii). 4. Mr. Dilip Sharma, learned counsel for the petitioners has strenuously argued that the Village Extension Officers, who were appointed on the basis of qualification of one year diploma in Agriculture and have undergone B.Sc. condensed course lateron, their seniority should be counted from the date of their improving the basic qualification as B.Sc. (Agriculture) while counting 10 years experience for promotion to the post of Agriculture Development Officer. 5. Mr. P.M. Negi, learned Deputy Advocate General and Mr. Lokender Thakur, learned counsel for respondents No. 3 and 4 have vehemently argued that the seniority of the Village Extension Officers is to be counted from their initial date of appointment irrespective of when they had acquired the B.Sc. qualification after their appointment while counting 10 years experience for promotion to the post of Agriculture Development Officer. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 7. It is not in dispute that the respondent No. 2 has passed the order in favour of the petitioners’ category vide Annexure-PA on 28.04.1993. The State may frame Rules under Article 309 of the Constitution of India, however, these Rules must conform to Articles 14 and 16 of the Constitution of India. 8. In the instant case, the petitioners after obtaining B.Sc. (Agriculture) were appointed as Village Extension Officers. - 4 - They were given five increments on the basis of their higher qualification. The Village Extension Officers, who were initially appointed on the basis of qualification of matriculation with one year diploma in Agriculture and have undergone B.Sc. condensed course thereafter and those persons who were possessing B.Sc. qualification at the time of their appointment as Village Extension Officers, constitute one class. There cannot be any discrimination in the same group only on the basis of the date of eligibility of qualification for further promotion when no separate quotas are provided. Equals cannot be treated as un-equals. 9. In a similar situation, their Lordships of the Hon’ble Supreme Court in R.B. Desai and another Versus S.K. Khankolker and others (1999)7 Supreme Court Cases 54 while interpreting the issue with regard to seniority vis-à-vis date of acquisition of eligibility, have framed the following question of law: “can the acquisition of an earlier eligibility give an advantage to the first respondent as against the appellants when an avenue for promotion opens in the cadre of ACFs even though at that point of time the appellants had also acquired the required eligibility?” Their Lordships have held as under: “9. We are unable to agree with this reasoning of the High Court. As noticed above, promotion to the post of AFOs is made from the post of RFOs to the extent of 75% of the vacancies. There is no dispute that both the appellants and the first respondent belong to the cadre of RFOs. The only difference between them being that the appellants were promotees in the said cadre while the first respondent was a direct recruit. It is an accepted principle in service jurisprudence that once persons from different sources enter a common cadre, their - 5 - seniority will have to be counted from the date of their continuous officiation in the cadre to which they are appointed. On facts, there is no dispute that the appellants entered the RFOs’ cadre on a date anterior to that of the first respondent, therefore, in the cadre of RFOs, the appellants are senior to the first respondent. However, to be considered for promotion, the rule required RFOs to acquire the eligibility as provided therein. Therefore, the question for consideration is: can the acquisition of an earlier eligibility give an advantage to the first respondent as against the appellants when an avenue for promotion opens in the cadre of ACFs even though at that point of time the appellants had also acquired the required eligibility? We are of the opinion that if at the time of consideration for promotion the candidates concerned have acquired the eligibility, then unless the rule specifically gives an advantage to a candidate with earlier eligibility, the date of seniority should prevail over the date of eligibility. The rule under consideration does not give any such priority to the candidates acquiring earlier eligibility and, in our opinion, rightly so. In service law, seniority has its own weightage and unless and until the rules specifically exclude this weightage of seniority, it is not open to the authorities to ignore the same. 10. The High Court has relied upon the language of Note 1 to the rule to come to the conclusion that the persons with earlier date of eligibility have a weightage over others solely on the basis that the note required the list of eligibility to be maintained on the basis of the date of acquisition of such eligibility, hence eligibility has preference over seniority. Our reading of the said note does not persuade us to give any such preference. If the rule did contemplate such advantage, it would have stated so in specific terms. We also do not see any special - 6 - objective in giving preference to the date of eligibility as against seniority. Eligibility, of course, has a relevant object but date of acquisition of eligibility, when both competing persons have the eligibility at the time of consideration cannot, in our opinion, make any difference.” 10. Mr. Dilip Sharma, learned counsel for the petitioners has strongly relied upon Shailendra Dania and Others Versus S.P. Dubey and Others, (2007) 5 Supreme Court Cases 535. The ratio of this judgment is not applicable in the present case. In that case, there was separate quota prescribed for Degree holder Junior Engineers and Diploma holder Junior Engineers. These categories were entitled for promotion in their respective quotas. Neither the diploma holder Junior Engineers could claim promotion in the quota of degree holder Junior Engineers nor the degree holder Junior Engineers could make a claim in the quota of diploma holder Junior Engineers. 11. In N. Suresh Nathan and others Versus Union of India and Others, (2010) 5 Supreme Court Cases 692, their Lordships of the Hon’ble Supreme Court have considered the judgment in Shailendra Dania and Others Versus S.P. Dubey and Others, (2007) 5 Supreme Court Cases 535. Their Lordships have been pleased to observe that in Shailendra Dania’s case, there were separate promotional channels available and in Clause 1 of Rule 11 of the Recruitment Rules, which fell for consideration before their Lordships, it laid down only qualification or eligibility for consideration for promotion to the post of Assistant Engineers earmarked for the 50% quota. Their Lordships have held as under: - 7 - “41. The practice adopted by the Government of Pondicherry in consultation with UPSC of counting the services of Section Officers or Junior Engineers, who qualified as graduates while in service from the date they passed the degree or equivalent examination and placing them in order of seniority accordingly for the purpose of consideration for promotion to the post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules is contrary to Rule 5 of the Recruitment Rules. Similarly, the direction of the High Court in the impugned judgment and order to count the entire service of a person concerned even before acquiring degree in Civil Engineering for the purpose of seniority and promotion to the post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules is contrary to Rule 5 of the Recruitment Rules. 49. In our considered opinion, therefore, the practice adopted by the Government of Pondicherry on the advice of UPSC of counting the service of the eligible candidates from the date of acquisition of the degree in Civil Engineering by them and the impugned judgment and order of the High Court directing that the entire service of eligible candidates, both prior and after acquisition of the degree of Civil Engineering by them, would be counted for the purpose of promotion to the post of Assistant Engineer under Clause 1 of Rule 11 of the Recruitment Rules are contrary to the Rules made under Article 309 of the Constitution and the fundamental right guaranteed under Article 16 of the Constitution. 50. For the aforesaid reasons, we set aside the impugned judgment of the High Court and direct the Government of Pondicherry to consider the cases of all Section Officers or Junior Engineers, who have completed three years’ service in the grade of Section Officers or Junior Engineers, for promotion to the - 8 - vacancies in the post of Assistant Engineer, Public Works Department, Government of Pondicherry, in accordance with their merit. We make it clear that the promotions to the post of Assistant Engineer already made pursuant to the judgment and order of the High Court will not be disturbed until the exercise is carried out for promotion in accordance with merit as directed in this judgment and on completion of such exercise, formal orders of promotion to the vacancies in the posts of Assistant Engineer which arose during the pendency of the cases before this Court are passed in case of those who are selected for promotion and after such exercise only those who are not selected for promotion may be reverted to the post of Section Officer or Junior Engineer.” 12. Consequently, in view of the observations made hereinabove, it is held that the seniority of the Village Extension Officers is to be counted from their initial date of appointment and not on the basis of their acquiring qualification of B.Sc. (Agriculture) for the purpose of promotion to the higher post. 13. Accordingly, there is not merit in this petition and the same is dismissed. No costs. (Rajiv Sharma) Judge November 24, 2010. (bhupender) - 9 -