IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) N0., W^ OF 2009 <" PETITIONER ^.^y ^ X^>*\J^^ ^^•y^ .^.^••^ ^ 1. Ashok Kumar Ahire, S/o Nayan Das Ahire Aged about 44 years, C/o SADO Office Block & Tehsil - Masturi, Distt. Bilaspur (C.G.) 2. B.K. Shrivastava, S/o Late Shri R.K. Shrivastava Aged about 44 years R/o D-8, GalaxyResidency, Amlidih, Distt. Raipur (C.G.) 3. A.K. Vaishnav, S/o Shri C.D. Vaishnav, Aged about 48 years, R/o H-26, Irrigation Colony, Rudri, Distt. Dhamtari (C.G.) <^""" • 4. Y.S. Thomar, S/o Shri Dinanath Singh Thomar, Aged about 47 years R/o D-5, Panchvati Colony, Distt. Dhamtari (C.G.) ^ 5. L.P. Tiwari, S/o Late L.R. Tiwari, Aged about 46 years, R/o 27, Arjun Enclave, Matpuraina, Raipur (C.G.) RESPONDENTS VERSUS State of Chhattisgarh, Through the Secretary, Department ofAgriculture, -DKS Bhawan, Raipur (C.G.) The Director, Directorate ofAgriculture, Chhattisgarh, Raipur (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA J HIGH COURT OF CHHAmSGARH. BILASPUR SINGLE BENCH : HON'BLE SHM MANINDRA MOHAN SHRIVASTAVA,J. Writ Petition (Sl No.5301/2007 PETITIONERS: RESPONDENTS: A.K. Chandravanshi 8& Ors. Versus State of Chhattisgarh & another Writ Petition (Sl No.ll22/2009 PETITIONER: Chhattisgarh Krishi Snatak Shasakiya Krishi Adhikari Sangh SsOrs. Versus RESPONDENTS: State of Chhattisgarh 8& another And Writ Petition (Sl No. 1274/2009 PETITIONERS: Ashok Kumar Ahire 8& Ors. r,-' RESPONDENTS: Versus State of Chhattisgarh 8s another ORDER PQST ON 2^'OCTOBER. 2010 Sd/- M.nin^M»bansbrivas"va Jude ^ HIGH COURT OF CHHATTISGARH : BILASPITR Sinele Bench : Hon?ble Shri Manindra Mohan Shrivastava, J. Writ Petition (Sl No.&3ai72007 PETITIONERS: RESPONDENTS: A.K. Chandravanshi & Ors. Versus State of Chhattisgarh & another Presenf: Shri P.S. Koshy with Shri Vivek Kumar Shrivastava, counsel for the petitioners. Shri Ajit Singh, Panel Lawyer for the State/respondents. Shri Anurag Dayal Shrivastava and Shri Viriay Pandey, counsel for intervreners. Writ Petition (S)No. 1122/2009 PETITIONER: Chhattisgarh Krishi Snatak Shasakiya Krishi Adhikari Sangh SsOrs. Versus RESPONDENTS: State of Chhattisgarh 85 another Present: Shri P.S. Koshy with Shri Vivek Kumar Shrivastava, counsel for the petitioners. Shri Ajit Singh, Panel Lawyer for the State/respondents. Shri Anurag Dayal Shrivastava and Shri Vinay Pandey, counsel for inter^eners. And Writ Petition (S) No. 1274/2009 PETITIONER: Ashok Kumar Ahire 8s Ors. Versus RESPONDENTS: State of Chhattisgarh & another Present: Shri P.S. Koshy with Shri Vivek Kumar Shrivastava, counsel for the petitioners. Shri Ajit Singh, Panel Lawyer for the State/respondents. Shri Anurag Dayal Shrivastava and Shri Vinay Pandey, counsel for intervreners. '^, 'IC ORDER (Passed on J^zLOctober, 2010) 1. The aforesaid three writ petitions are being decided by this common order as common issue of law and fact arise for consideration in the aforesaid petitions. 2. In W.P. (8) No.5301/07, the petitioners who are Rural Agriculture Extension Officer in the Department of Agriculture, have made prayer for setting aside/quashing action of respondents in granting promotion on the post of Agriculture Development Officer to those Rural Agriculture Extension Officer who do not possess the minimum educational qualiflcations of graduate. I^i W.P.(S) No. 1122/09 SE 1274/09, the petitioners have prayed for declaration that the action of the respondents in considering for promotion those Agriculture Development Officers, who are not possessed of M.Sc. Agriculture degree, which is a minimum educational qualification, is bad in law and illegal and for further direction to respondents to fill-up the post of Sr. Agriculture Development Offlcer only from amongst those Agriculture Development Officers who are possessed of minimum eligibilily qualiflcations as per rules. 3. Case of the petitioners in W.P. (S) No.5301/07, who are Rural Agriculture Extension Officer, is that those Ruler Agriculture Extension Officer who are not possessed of graduate degree are not eligible for being considered for promotion to the post of Agriculture Development Officer, as according to the them, minimuni qualification prescribed for appointment to the post of Agriculture Development Offlcer is B.Sc. Agriculture. Further case ofthe those petitioners is that all those Rural Agriculture Extension Officer were appointed even though they did not (° possess the minimum prescribed qualification for appointment to the post of Rural Agriculture Extension Officer i.e. B.Sc. (Agriculture). 4. Similarly the case of the petitioners in other two writ petitions, who are Agriculture Development Officers, is that those Agriculture Development Officers, who are not possessed of P.G. degree in Agriculture or allied subjects, are not eligible for being considered for promotion to the post of Sr. Agriculture Development Officer. Further case of the petitioners is that many of the Agriculture Development Officers are those who were neither graduate but were either matriculate or higher secondary pass, in few cases, those who are graduate,but not agriculture graduates, were appointed and are presently holding the post of Agriculture Development Offlcer. 5. In W.P. No.5301/07, application for intervention has been filed by those Rural Agriculture Extension Officer who are not possessed of graduate degree seeking intervention to oppose the relief claimed by the petitioners. Similarly, in other two writ petitions, inter^ention applications have been filed by those Agriculture Development Officer who are not possessed of graduate degree and post graduate degree. 6, It is not disputed that the nomenclature of various posts has been changed after promulgation of the relevant service rules namely M.P./C.G. sub-ordinate Agricultural (Non-Ministerial) Executive Service Recruitment Rules, 1972.(hereinafter referred to as ttthe Recruitment Rules of 1972))). The change in nomenclature is as below:- Village Level Worker (V.L.W. ) Agriculture Assistant (Upper Division) Agriculture Assistant (Lower Division) Rural Agriculture Extension Officer (R.A.E.O.) Senior Agriculture Development Officer Agriculture Development Officer \ /•G 7. The aforesaid change in nomenclature is reHected from letters dated 9th April 1981 and 1st February, 1982 cumulatively field as Annexure D-2 along with application for taking documents on record in W.P. (8) No.5301/07. The aforesaid two letters, placed on record by the petitioners in compliance of order dated 8.4.2010 passed by this Court, have not been disputed by anyone. 8. For brevity, Rural Agriculture .Extension Officer, Agriculture Development Officer and Sr. Agriculture Development Offlcer hereinafter shall be referred to as R.A.E.O., A.D.O. 85 Sr. A.D.O respectively. 9. Learned counsel appearing for the petitioners in three writ petitions submitted that under the statutory scheme of the Recruitment Rules of 1972, minimum qualification for appointment to the post of R.A.E.O., A.D.O. 8& Sr. A.D.O. has been prescribed. He submits that as Rules prescribe educational qualification for appointment by way of direct recruitment to the post of ADO and Sr.A.DO., those R.A.E.O. who are not possessed of the qualification prescribed for the post of A.D.O. are not eligible for being considered for promotion to the post of A.D.O. It has been argued that those R.A.E.Os. were appointed even though they were not possessed of required educational qualification of B.Sc. Agriculture. Referring to the provision contained in Schedule -III appended to the Rules of 1972, learned counsel for the petitioners submitted that only those R.A.E.O. who possessed B.Sc. Agriculture degree could be considered for promotion to the post of A.D.O as the minimum qualification for appointment to the post of A.D.O. is B.Sc. Agriculture. It has also been submitted that in so far as promotion from dy' the post ofA.D.O. to Sr.A.D.O. is concerned those A.D.Os who ure post graduate in Agriculture or allied subjects alone could be considered for promotion to the post of Sr.A.D.O. It has also been argued that those R.A.E.Os. and A.D.Os. who are not possessed ofgraduate degree cannot be said to be appointed according to the Recruitment Rules. Therefore, they are not entitled for being considered for promotion to their respective next higher post ofA.D.O. and Sr.ADO. 10. Learned counsel for the petitioner has relied upon the decisions in the cases of Sybhash Chandra Dhrupta & Anr. Vs. State of Himachal Pradesh 85 Ors.1, Rajasthan Public Seryice Comniission Vs, Kaila Kumar Paliwal 8& Anr,2, V. Markendeya & Ors. Vs. State of Andhra Pradesh fic Ors.3 D.K. Jain SB Ors. Vs. State of Harvana SB Ors.4 & Dr. Raiinder Sineh Vs. State of Puniab & Ors.5. 11. On the other hand, learned counsel for the State-respondents in all three petitions would submit that the action of the respondents in considering R.A.E.O. for promotion to the poist ofA.D.O. including those who are not graduates and considering A.D.Os. for promotion to the next higher post of Sr.A.D.Os including who are not graduate and post graduate, is not in contravention of any of the provision contained in the Recruitment Rules of 1972. It has been submitted by learned State counsel that at the time when the Recruitment Rules were framed, requisite number of graduates in Agriculture discipline were not available and therefore those who are graduates in other branches and even non-graduate/matriculate were recniited by relaxing the Rules. Learned counsel for the State/respondents submitted that such.non- ' 2000 (1) S.L.R. 696 2 AIR 2007 SC 1746 3 (1989) 3 SCC 191 4 1995 Supp (1) SCC 349 5 (2001) 5 SCC 482 6 graduates/matriculate/graduate other then Agriculture graduates were subjected to extensive training of two years and sbc months respectively. Further subraission of learned counsel for the State is that the qualiflcations prescribed in Schedule -III appended to the Rules of 1972, are referable to Rule 8 of the Recruitment Rules of 1972 relating to direct recruitment only and in the case of promotion, it is not the requirement of the Rules that the occupant of the feeder post must be possessed of those qualification in order to become eligible for being considered for promotion. Learned counsel for the State argued that in the matter ofpromotion from the post ofA.R.E.O. to A.D.O., and A.D.O. to Sr.ADO, Rule 13 8s 14 of the Rules of 1972 are applicable, wherein it has been provided that the Committee shall consider the cases of persons who on the 1st day of January of that year, had completed 5 years of service (whether officiating of substantive) in the post/service mentioned in the Column 2 of Schedule -IV or any other post declared equivalent thereto by the Government. Rule further provides that if persons with 5 years of completed service are not available and the exigencies of ser^ice so demanded then with the prior approval of the Govt., the Appointing Authority may relax this to 3 years of completed service. 12. Learned counsel for interveners-A.R.E.Os. & A.D.Os. supported the case of the respondents-State and opposed the relief claimed by the petitioners. 13. I have considered the rival submissions made by learned counsel for the parties and perused the records. 14. In order to appreciate the submissions made by learned counsel for the petitioners in three petitions, it is necessary to refer to the relevant provisions contained in the Recruitinent Rules of 1972. In exercise of power conferred by the proviso to Article 309 of the Constitution of India, Recruitnient Rules governing recruitment to various post borne in theAgriculture Departnient of the State Govt. have been framed known as M.P./C.G. sub-ordinate Agricultural (Non-Ministerial) Executive Seryice Recruitment Rules, 1972. Under Rule 6 thereof, it has been provided that recruitment to the servrice shall be made by direct recruitment or by promotion or by transfer. Rule 8 lays down conditions of eligibility of direct recruits. Clause (i) of Rule 8 makes provision with regard to age. Clause (ii) thereof makes provision with regard to educational qualification and provides that in order to be eligible to compete at the selection, a . candidate must possess educational qualification prescribed for the servrice as shown in Schedule -III. Rule 14 prescribes conditions of eligibility for promotion. The same being relevant for the purposes of deciding the controversy involved in these petitions is reproduced as below :- "14. Conditions of eligibility for promotion- The Committee shall consider the cases of all persons who on the first day of January of that year, had completed five years of service (whether officiating or substantive) in the post/service mentioned in Col.(2) of Schedule IV or any other posts or posts declared equivalent thereto by the Government. If persons with five years of completed service are not available and the exigencies of service so demanded then with the prior approval of the Government the Appointing authority may relax this to three years of completed service/' ^p 15. Schedule -II of the Rules of 1972, referable to Rule 6, inter alia prescribes percentage of the number of duty posts to be filled in by direct recruitment, by promotion and by transfer. 90 per cent of the post of Sr.A.D.O. (Agriculture Assistant UD) is required to be filled-up by way of promotion, whereas remaining 10 per cent is to be filled-up by way of direct recruitment. Similarly 40 percent of the post of A.D.O. (Agriculture Assistant LD) is to be filled-up by way of promotion whereas 60 per cent of the post is to be filled up by way of direct recruitment. 16. Schedule -IV referable to Rule 13 prescribes the channel of promotion and constitution of Departmental Promotion Committee. Thechannel of promotion as prescribed in Schedule -IV, clearly provides that promotions to the post of Sr. A.D.0. shall be made from feeder post of ADO and other equivalent post. Similarly, the provision therein also provides that promotiori to the post of ADO shall be made from the feeder post of R.A.E.O. and other equivalent posts. 17. Examination of the statutory scheme engrafted under the Rules of 1972, shows that the post ofADO and Sr.ADO are to be filled up both by way of recruiitment as well as by promotion. Rule 8 (ii) lays down the eligibility conditions with regard to educational qualification in the matter of direct recruitment. Schedule -III prescribes the educational qualification/ for appointment by way of direct recruitment to vari'ous posts including the posts RAEO, ADO & Sr.A.D.O.. The educational qualiflcation prescribed in Schedule -III are clearly referable to Rule 8 and meaning thereby that those educational qualifications constitute eligibility conditions for appointment to the post by way of direct recruitment. Those educational qualifications are therefore applicable in the case of direct recruitment only. This is clear from Schedule -III ^ itself, wherein, it has been provided that the educational qualiflcations are for direct recruitment for the post ofADO and Sr.ADO. 18. For the purpose ofpromotion to the post ofADO and Sr.ADO, provision contained in Rule 13 85 14 and Schedule IV are applicable, a conjoint reading of which clearly lays down that in the matter ofpromotion from the post ofADO to Sr.ADO and REAO to ADO, the condition of eligibility prescribed is that the AREO or ADO, as the case may be, should have completed 5 years of service (whether officiating or substantive) in the post/sen/rice mentioned in column -2 ofSchedule IV. 19. The statutory scheme of direct recruitment, promotion, eligibility conditions, educational qualifications, experience therefore does not require either expressly or by necessaiy implications, that in order to be eligible for being considered for promotion to the post ofADO, R.A.E.O must necessarily be possessed of graduate degree in Agriculture. Similarly there is no such requirement of the rale of being possessed of P.G. degree in Agriculture in order to become eligible for being considered for promotion to the post of Sr.ADO. The Rule requires of ' minimum prescribed period of experience on the feeder post of RAEO or ADO, as the case may be. There is nothing in the Rule to suggest that the educational qualification prescribed for direct recruitment are applicable in the matter of promotion also. Thus, for direct recruitment against 10 per cent post of Sr.ADO, post graduate in Agriculture or allied subjects is the minimum educational qualification required to be possessed by the candidate. Similarly, for direct recruitment against 60 per cent of the post of ADOs, B.Sc. Agriculture is the minimum educational qualification required to be possessed by the candidate. For promotion to 90 per cent post of the SrADO, the requirement is minimum 5 years experience on the feeder post. Similarly, for ^;^^^,^£2E^w^-^^^ 10 ^- f^ promotion against 40 per cent post of ADOs, the requirement is minimum 5 years experience on the feeder posts. 20. True it is that minimumeducational qualification prescribed for direct recruitment on the post of RAEO is B.Sc. Agriculture, large number of R.A.E.Os., in peculiar circumstances, came to be appointed though being matriculate and also allowed to continue in service and became regular in service cannot be held ineligible for being considered for promotion to the post of ADO either on the ground that at the time of their initial appointment on the feeder post, they did not possess the prescribed minimum qualification. Similarly, those who were appointed or promoted as ADOs, though not possessed of graduate degree in Agriculture, cannot be held ineligible for being considered for promotion to the post of Sr.ADO on the ground that at the time of their appointment or promotion, as the case may be, as A.D.O., they were not possessed of minimum educational qualifications. It is not disputed that all such RAEOs and ADOs who were appointed from time to time have been retained in service. Once they become member of the sen/rice, their further promotion to the next higher post, are governed by relevant rules regarding promotion. In the absence of their being a specific provision in the rules prescribing educational qualification for the purposes of promotion, the only eligibility condition applicable would be one prescribed under Rule 14 of the Rules of 1972 i.e. minimum experience of 5 years on the feeder post. 21. In the return field by respondents -State in 3 cases, a specific stand has been taken that after promulgation of the Recruitment Rules of 1972, sufficient number of candidates with graduate qualification were not available and therefore the Govt. relaxed the Recruitment Rules. In W.P. 11 (8) No.5301/07, respondents-State in paragraph 5.11 of their return have stated thus: "5.11. In regard to the averments made in this paragraph of the petition, it is submitted that according to the recruitment rules, 1972, educational qualification for the post of Rural Agriculture Extension Offlcer was graduate in Agriculture. As requisite number of graduate in agriculture discipline were not available, hence in the erstwhile State of Madhya Pradesh, graduates in other branches were also recruited on the post ofAgriculture Extension Officer/'. 22. In W.P. (S) No. 1122/09, respondents-State in paragraph 8 (c) of their return, has stated thus: <(8. c. It is respectfully submitted that, during the period when the said rules of Chhattisgarh Subordinate Agricultural (Non-Ministerial) Service Rule, 1972 framed there were very few B.Sc. (Agriculture) gradate available for recruitment. Hence, the State Govt. offered relaxations in recruitment process and therefore, a number of persons were inducted who were matriculates or graduates. It is submitted that, these persons who were not B.Sc. graduates at that point of time, obtained extensive training in relaxation to the nature of work involved." In W.P. (S) No. 1271/09, respondents-State have adopted the return filed in W.P.(S) No.5301/07. It has also been averred by the respondents in their return that those who were non-graduate but matriculate were subjected to extensive training of 2 years and those who were graduates but not in Agriculture were made to undergo 6 months training. 23. The aforesaid specific averment made in the return has not been disputed by the petitioners, therefore, the undisputed position which 12 <J? emerges, is that as the candidates with graduate in Agriculture were not available, the minimum educational qualification of graduate in Agriculture for appointment to RAEO and ADO was relaxed by the Govt. and large number of appointments were made over decades to cope-up with the workload of the Department of Agriculture. Under these circumstances, such RAEOs 85 ADOs who have worked all these years and have become niembers of service by virtue of their regular appointment, relaxing the ininimum educational qualification criteria, cannot be held ineligible for being considered for promotion on the ground that at the time of their initial appointment as RAEO or at the time of initial appointment/promotion as ADOs, they did not hold minimum educational qualifications prescribed for direct recruitment on those post. 24. The petitioner in these petitions have not challenged the legality and validity of appointment of RAEOs and ADOs, who were appointed as such from time to time, though not possessed of graduate degree in the Agriculture or otherwise. Moreover, there is no material on record to show that the Govt. has taken any action to terminate their services on the ground that those RAEOs and ADOs were initially appointed without being possessed of the minimum eligibility criteria. On the other hand, the State has come out with clear stand that such appointments were made relaxing the minimum educational qualifications criteria, as sufficient number of candidates with B.Sc. Agriculture were not available and that such appointees were subjected to training also. This clearly shows that all such R.A.E.O. and A.D.Os. have became regular incumbent in service. 25. Learned counsel for the petitioners relied upon several decisions referred to above in order to contend that as the minimum educational 13 qualifications prescribed for appointment to the post of ADO 8& Sr.ADO is graduate in Agriculture branch !and M.Sc. Agriculture respectively, as reflected from Schedule -III, those RAEOs and ADOs who were not possessed of such qualifications are not eligible for being considered for promotion to the post ofADO 85 Sr.ADO, as the case may be. 26. In the case of Subhash Chandra Dhrupta (supra), the rule which was referred to, clearly stipulated that no person shall be appointed to the post of Assistant, unless he is a graduate of a recognized university or above. It was undisputed in that case that the post ofAssistant is to be filled only by promotion. It was in that context that the Supreme Court considered the question as to whether for the purposes of promotion to the post of Assistant, it is necessary for a candidate to have the minimum educational qualification of being a graduate. In the factual backdrop of that case, where it was admitted position that the post of Assistant were to be filled-up 100 per cent by promotion, the relaxation clause by way of proviso having been found to be not applicable, it was held that the qualification of graduate is essential for a candidate in order to become eligible for being considered for promotion. 27. In the case of Kaila Kuniar Paliwal (supra), the issue which fell for consideration was whether the experience gained while working as Laboratory Assistant or Teacher Grade-III, satisfies the requirement of teaching experience prescribed in the advertisement of appointment to the post of Head Master. Upon examination on the basis of relevant rules and the policy of appointment, it was found that 5 years teaching experience is required for consideration for appointment to the post of Head Master, which is refereble to teaching on certain categories or posts. On such consideration, it was held, taking into consideration the expert opinion of the PSC, that for the purposes of appointment to the 14 post of Head Master of a secondary school by way of direct recruitment or promotion, qualifications requisite for a candidate as in the post of teacher Grade-III are not sufficient. The ratidlaid dwon in the judgment is that a person in order to be considered for promotion to higher post must be possessed of essential qualification and if he does not do so he cannot be considered for promotion and further that in the absence of any express power conferred upon it, the Selection Committee has no authority to relax essential qualifications. The Supreme Court held that the recruitment to post must be strictly in terms of the rules operating in the field and that educational qualification must be possessed by a person as on the date of issuance of notification or as specified in the rules and only in the absence thereto, the qualification acquired till the last date of filing of the application would be the relevant. 28. In the case of V. Markendeya (supra), what arose for consideration before the Supreme Court was whether the classification made between graduate Supervisors and non-graduate Supervisor is reasonable or violative of Article 14 or 16 of the Constitution of India