HIGH COURT OF CHHATI'ISGARH AT BILASPUR W.P.. No. 4150/2006 (Pe’riTion under Arficle 226/227 of The Cons’ri’ru‘rion of India) PETITIONER Dr‘. B.P. Ma’rhil Versus R ESPONDENTS S‘r'a’re of Chha’n‘isgarh and ano’rher ORDER FOR CONSIDERATION Sd/- Dhirendra Mishra Judge 6-7—2009 HON'BLE MR. R.N. CHANDRAKAR, Sdl— R.N. Chandrakar Judge i T Tg’f. 7*.ZUU?’ 39(W POST FOR ORDER ON 7%.}ULV, 2009 Sd/- Dhirendra Mishra Judge Qz.7.2oo9 .V J HIGH COURT OF CHHATTISGARH AT BILASPUR HON. MR. DHIRENDRA MISHRA & HON. MR. R.N. CHANDRAKARI JJ W.. P No. 4150/2006 (Pe’riTion under Article 226/227 of the ConsTi’ruTion of India) PETITIONER DIVISION BENCH: Dr‘. B.P. Ma’rhil, Aged abouf 50 years, 5/0 Shr'i B.L. Maifhil, Senior Scientific Officer, Scene of Crime Unit Forensic Science Laboratory, Mobile Uni’r, R/o Qr‘. No.14A S’rr‘eef No.26 Secfor—lO, Bhilai Nagar, DisH. Durg (CG) Versus RESPONDENTS 1. STaTe of Cha‘h‘isgar, Throughi Secrefory Ministry of Home, D.K.S. Bhowanl Roipur (C.G.) 2, Director, State Forensic Science Laboratory (Gazetted) Services, State Forensic Science Laboratory, Tikarapara, Raipur (CG) Present: Shri Amiyakant Tiwari, Advocate for the petitioner. Shri Prashant Misrha Advocate General With Mr AJay Dwuvedl Deputy Government Advocate for the State/respondents O R D E R (Passed on Q'E.7.2009) Per Dhirendra Mishra J: 1. The petitioner is posted as Senior Scientific Officer (for short ‘SSO') at the Scene of Crime Unit, Durg (FSL -Mobile Unit), State Forensic Science Laboratory Department of the State Government. The petitioner joined his services in the erstwhile State of Madhya Pradesh in State Forensic Science Laboratory (Gazetted Services). After reorganization of State, the petitioner's Services were allocated to the ‘State of Chhattisgarh Forensic Science Laboratory (Gazetted Services). His service conditions were governed by the M.P. Forensic Science Laboratory (Gazetted Service) hh Rules, 1993 (Annexure P—1) (for shor’r ‘Rules, 1993'). The S’rcn‘e of Chhaf’risgarh adopTed The Rules, 1993 affer‘ ifs formafion and The same was in force ’rill fhe notificafion of CG. Slate Forensic Science Laboral'or‘y (Gaze‘r’red Services) Recruifmenf Rules, 2006 (Annexure P94) ( for shorT ‘Rules, 2006). 2. Grievance of The peTiTioner is ThaT Rule 14 of Rules, 2006 prescribed condiTions of eligibiliTy for promoTion according To which avCommiTTee consTiTuTed under Rule 13 is To consider The cases of promoTion of all The persons from which promoTion is To be made To The higher posT. As per ‘ criTeria pre3cribed in Schedule-IV appended wiTh The Rules, 2006, for promoTion To The posT of JoinT DirecTor, The SSO of all The divisions wiTh five years experience were To be considered. GradaTion lisT for SSO for Physics, ChemisTry & Biology disciplines as on 1.4.1998 was prepared separaTely under Rules, 1993 and The peTiTioner was placed aT SenioriTy Serial No.5 in The posT of SSO (ChemisTry Discipline) (Division). However, The Home DeparTmenT of STaTe of CG arbiTrarily consolidaTed The _senioriTy iisT of all The SSO of various divisions/disciplines and published a joinT SenioriTy lisT of $50 conTrary To Rules, 1993 and placed The peTiTioner aT Sr. No.3 (Annexure P—3). Rules, 2006 were noTified repealing The Rules, 1993. Rule 14 of Rules, 2006 pre5cribes condiTion of eligibiliTy for promoTion. PromoTion To The posT of JoinT DirecTor‘ is To be made from The posT of SSO (Biology, ChemisTry & Physics). As per Schedule—IV framed under Rule 14, SSO wiTh minimum experience of five years of all The divisions and also possessing aTleasT Three years of analyTical work experience of The same posT i STaTe/ Regional Forensic Science LaboraTory is essenTial for promoTion To The posT of JoinT DirecTor. . Shri AmiyakanT Tiwari, learned counsel for The peTiTioner argued ThaT The preparaTion of impugned gradaTion lisT for all The Three disciplines as also prescribing addiTional eligibiliTy criTeria of aTIeasT Three years analyTicaI work experience of The posT of SSO in STaTe or Regional Forensic Science LaboraTory for promoTion To The posT of JoinT DirecTor is unilaTeral change l i n in #he service condh‘ion of fhe pefifioner commry fo The sub-secfion (1) of The SecTion 69 of *he M.P. Reorganizc’rion Ac‘r, 2000 (for shorf ‘Act, 2000'), according ‘ro which his Service condition under Section 68 of ’rhe Ac’r, 2000 could no‘r be varied to his disadvan’rcge excep‘r wi’rh the previous approval of ’rhe Cenfral Government The pe’rifioner has alsa challenged The condition prescribed in Column No.6 of $chedule~IV of fhe Rules, 2006 for promotion fo The posf of Joim‘ Director on The ground fha’r classificafion of SSO on fhe basis of Their sfafion/office of posfing is arbifrary, unreasonable and discriminafory, as fhe same di5criminafes befween The officers of The some grade on The ground of Their place of posTing. The above condiTion for promoTion forecloses The avenues of promoTion of The peTiTioner To The higher posT as condiTion of Three years experience of onalyTical work of SSO in STaTe or Regional Forensic Science LaboroTory cannoT be fulfilled unless The officer concerned is posTed in The specified office. Reliance is placed on N. subbaroo Vs. Union of India & oThers reporTed in AIR 1973 SC 69. . On The oTher hand, Mr. PrashanT Mishr’a, lea‘rned AdvocaTe General for The STaTe argued ThaT The STaTe GovernmenT, in exercise of powers under ArTicle 309 of The ConsTiTuTion of India, has framed The Rules, 2006, which has been published in The official gazéTTe on 23.5.2006 and as such does noT suffer from any infirmi’ry or illegaliTy. WiTh The reorganizaTion of STaTe‘ of MP. and formaTion of STaTe of C.G., The FSL was also bifurcaTed beTween boTh The STaTes and posTs allocaTed in FSL was noT based on subjecT—wise as only one posT of DirecTor, Two posTs of JoinT DirecTor, four posTs of SSO & 12 posTs of ScienTific Officer were allocaTed and iT was provided ThaT rules shall be amended as per sancTioned seT—up. In These circumsTances, Rules, 2006 have been framed and accordingly common gradaTion lisT for all The Three disciplines according To The senioriTy was prepared. The STaTe of M.P. has aISo amended The Rules, 1993 vide noTificaTion daTed 15.9.2006 and as per amended rules, same qualificaTion has been included for promoTion To The posT of JoinT DirecTor. 100% posT of DirecTor, Senior JoinT DirecTor and JoinT DirecTor is To be filled—in by promo’rion, whereas, 50% posf of SSO and 10% posf of Scientific Officer is To be filled-in by promo‘rion. Before formation of fhe Sfofe of Chha’rfisgorh, Regional FSL was in existence of Rqipur‘. On 1.11.2002 The Sfm‘e gave The s’rafus of Sfo’re FSL to Regional FSL and also sanctioned seven districts scene of crime mobile units at Raipur, Bilaspur, Raigar‘h, Jagdalpur, Rajnandgaon, Durg & Surguja. As per sanctioned set-up, the State FSL at Raipur consists of one post of Director, two posts of Joint Director, four posts of SSO (Si 12 posts of Scientific Officer. Whereas, for seven district scene of crime mobile units, one post of SSO, two posts of Scientific Officer have been sanctioned and no post of Joint Director is sanctioned for district scene of crime unit. Since five years experience is needed for promotion to the post of Joint Director, FSL, the same indicates the experience of laboratory only. Since the petitioner is posted in District Scene of Crime Mobile Unit, Durg from the year 1999, his claim for promotion to the post of Joint Director of State FSL is baseless. Similar provisions were brought by amendment in the M.P. Rulesrvide notification dated 15.9.2006 whereby minimum two years' working experience in State FSL is necessary for promotion on the post of Joint Director. Circular issued by the Police Headquarter, Bhppal in the year 1999 (Annexure R—ll) prescribing regulation for scene of crime unit clearly reveals that they have been advised not to undertake analytical work due to non-availability of the infrastructure 6i facility and therefore, units could not be considered as analytical laboratory. Since the petitioner does not have required experience of analytical work while posted as SSO at State/Regional FSL, he is not qualified for the post of Joint Director. Classification has been made with an object of promoting persons to the post of Joint Director who has necessary experience to supervise the work of the Assistant Chemical Examiner working in the field of research and laboratory development in ' State/Regional FSL. The officers.posted in scene of crime unit are reluctant to work in the State/Regional FSL though they were also directed by the superior officers to render their services in the State/Regional FSL. Therefore, the question of depriving the petitioner and other SSOs posted in scene of crime unit from promotion to the post of Joint Director by not fing fhe a1 Sfme/Regiond FSL does not arise. T Sfafe of pos m ‘ hé Maharahta and Haryana have made similar rovision for romoTi To Th pos’ of Joim Direc‘ror‘ regarding experience of anlytical work. . We have heard earned counsel for he parfie. l T s . Indispu‘rably, The peTiTioner as serving as SSO in Te adha ra STaTe Forensc cience LaboraTo .(GaeTTe Services) aT Th Ti o' reorganizaTion of STaTe of M.P. when his seices were allocaTe o The SfaTe of ChhaTTisgarh. Rules, 193, noTied in The exercise o owrs under ArTicIe 09 T ConiTuTion, overed his servics aT e Time of his alIocaTion. Rule 13 of The Rules, 1993 provide fo apoinTmenT by promoTion according o hic a CommTee consisTing of The meers menTined in The Schedule-IV for makin preliminary selcTin or promoTion eligible candidaTes is To be consTuTed. ule 14 al iT h ondiTion f ligibiliTy for promoTio. —rule (1) Rule 14 rds a under:- “14 (1) CondiTions of eligibiliTy for promoTion;- (1) SubjecT To The provisions of sub—rule (2) The commiTTee shall consider The cases of all persons who on The 15* day of Jahuary‘ of ThaT yearhad compleTed I such‘number of years of service (wheTher officiaTing or subsTanTive) in The posTs from which promoTion is To be made as specified in column (4) of Schedule IV and are'wiThin The zone of consideraTion in accordance wiTh provisions of sub-rule (2). 7. According To Schedule-IV appended To Rules, 1993 The Technical Officers (Physics), Senior SSO (ChemisTry), SSO (Biology) and SSO having five years experience were eligible for consideraTion for promoTion on The posT of JoinT DirecTor (Physics, ChemisTry, Biology & Trainee respecTively). IT is also noT in dispuTe ThaT in The ersTwhile STaTe of MP. separaTe senioriTy IisT of Senior SSO for various disciplines as on 1.4.1998 was noTified. On reorganizaTion of The STaTe of M.P., one posT of DirecTor, Two posTs of » JoinT DirecTor, 12 posTs of ScienTific Officer were allocaTed wiThouT specifically menTio’ning any discipline. Whereas, in The ersTwhile STaTe of M.P. one posT of DirecTor, Two posTs of Sr. JoinT DirecTor, six posTs of JoinT DirecTor (2 physics, 2 ChemisTry, 1 Biology & 1 Trainee) d 56 posTs of i l l 1“ i l sr ps pon e r ‘ a w h My Pdesh i S ry zd e me f rv d T 9 if f pe 3 of he sT gn e Th s r p T wh iT mb o g eo f of Ti R des wh Te c o e n Sub ea s , Scien‘rific Officer (18 physics, 18 Chemisfr‘y & 20 Biology) were available, as per Schedule- framed under clauS (1) of Rules 4 & 5 of The M.P. ore Science Laborafory (Gazef’red Services) Recrui‘rmen’r Rules, 193. While allocatin fe posT for Th Sfa’re o Chha’r‘isgarh, as defled aove f was aged Thai’ service recruitem‘ rules will be suifaly amened a per requirement . Tus, faing nfo considerafion Th nuber of posfs of gazeffed ofer h k i e m fics in Th FSL azeTTed Services) allocaTed To The STaTe of .G., The publicaTi of combin gradaTion lisT of The SSO orking under diferenT disciples cannoT be Tered as chang in condiTion o servie alale To The SSO before The ppoinTed daTe To Their disadvanTage. herefore, are of e considered oinon ThaT The hallenge To The gradaTion lisT pubished‘by he rede 1 3 e of v T a T we Th pi c l T sponnT STaTe as on .4.2003 (Annexure P-) on Th ground proiso o SecTio 69 of The ACT of 2000 has no force. . The peTiTioner has also challenged consTiTuTional validiTy of inTroduTio f adiTional eligiliTy criTeria in Column .6 of Schedule-I of Rus, 006. The conTenTion of The peiTioner is Tha SSO were poTed a TaTe / Regional FSL or Scene of Crim Mobil niT forms The some lass as They all belong To The adre of SSO included in The srvics f The Forensi Sciece aboraTor (GazeTTed Services), as per Schedule—I framed undr cause (1) of Rule 4 & 5 of Th ules, 199 herefore, The classficaTion eTwn SSO posTed in scene f crime mobile uni and STaTe/Regional FSL fo The purses of romoTi To The posT of JoT DirecTo s unresonable po pon in r i a, arbirary, discriminaTory and n violaTion of The ArTicles 14 of Th ConsTiTuTion of India. By unilTerally amendig The rules and ncorporaTing The addiTional eligibiliTy criTeria, avenues for romoTion f The SSO psTed aT scen of crimevuniT is closed and The same amouns To advee p o o e T rsly affecTi The services of The peTiTioner. uch amendmenT is noT permissible unless The same is incorporaTed wiTh The approval of The CenTral GovernmenT as per SecTion 69 of The AcT, 2000. 10. Whereas, according To The submission made by The STaTe, Rules, 2006 have been framed in exercise of powers under SecTion 309 of The ConsTiTuTion of 1 e Fnsic . 9 g h e f r ai b, i re m b d s e (G C on ed w f in m e f c ppicb n The cn o d bi No V le 2 T T s T S e e U c c ee o c n Ly e l s e R 3. T i bee o T r a T i & 16 e a n i ng S India. The SSO pos’red in s'cene of crime uni’r do nof have experience of analyh‘cal wark in The Sfafe/Regional FSL. Scene of Crime Unifs are nof well equipped. The Joim‘ Direc’ror is higher pos’r of The FSL, he has To supervise fhe work of Scienfific Officer & SSO hondling moder sophistica‘red insfrumenfs only available in The Sfafe/Regional FSL. Thus, the SSO having no experience of analy’rical work in ’rhe S’ra’re/Regional FSL would nof be sui’rable for promotion To The posT of The Joim‘ DirecTor. InTroduc’rion of addiTional experience, as mentioned in Column No.6 of Rule 6 has been mode wiTh an objecf To promoTe an experienced SSO as Joim‘ Direcfor, Thus, The ‘ classificaTion beTween The SSO posTed in STaTe/Regional FSL and oTher SSOs posTed in The scene of crime uniT is founded on inTelligible differenTia and The same has raTional nexus To The » objecT soughT To be achieved by The sTaTuTe and The same cannoT be declared ulTra—vires. .The peTiTioner is a Class-I GazeTTed Officer in The CG. FSL (GazeTTed Services). Before formaTion of The STaTe of ChhaTTisgarh GazeTTed Officers in FSL were of six caTegories ize. DirecTor, Sr. JoinT DirecTor, JoinT DirecTor, SSO, ScienTific Officer & AdminisTraTive Officer, as per ‘ Schedule-1 of Rules, 1993. Th‘ere were four sub-caTegories in The caTegory of JoinT DirecTor i.e. JoinT DirecTor (Physics, ChemisTry, Biology & Trainee Similarly, SSO were also sub-divided in Three caTegories i.e. Physics, ChemisTry& Biology. AfTer bifurcaTion of The STaTe of 6.6., new seT-up was sancTioned for FSL which compriseS'of DirecTor, JoinT DirecTor, SSO 6i ScienTific Officer. SeparaTe gradaTion lisT, before formaTion of The STaTe of 6.6. of 5.5.0. (Physics, ChemisTry, Biology), was prepared, however, afTer formaTion of The STaTe of C.G. joim‘ gradaTion lisT was prepared. Before coming inTo force of Rules, 2006 The posT of JoinT DirecTor of cerTain disciplines was To be filled 100% by promoTion from The SSO of The same discipline having five years’ experience. However, Rules, 2006 was noTified vide noTificaTion daTed 23.5.2006 and Schedule-1 made under Rules 4 6i 5 of The Rules, 2006 provides for one posT of DirecTor, Two posTs of JoinT ' DirecTors, four posTs of SSO (Biology, Physics & ChemisTry) and Twelve n ) pos’rs of Scientific Officer (Biologya Physics, Chemisfr'y, Trainee, Sfor‘e, Labora’rory and Phofogr'apher'). First ’rhree pos’rs are Class—I posts, whereas, o’rhers Ciass-Z pos’rs. Schedule-II made under Rules 6 provides fha‘r 100% pos’r i.e. 2 posts of Join‘r Direcfor are to be filled by promotion. It further provides that SSO of a“ the divisions will be taken in the zone of consideration equally as per seniority for the promotion to the post of Joint Director. However, for promotion to the post of Joint Director at least three yeors' analytical work experience of the same post in State/Regional FSL has been made essential. Schedule-III made under Rule 8 prescribes the age and qualification of the person to be recruited directly on the post of $50. Rule 14 deals with the condition of eligibility for promotion according to which a committee constituted under Rule 13 is to consider-the case of all persons who are within the zone of consideration for promotion to the post of Joint Director in accordance with the provisions of sub-rule (2). Schedule—IV framed under Rule 14 of Rules, 2006 envisages that the SSO of all categories having five years' experience fall within the zone of consideration for promotion to the post of Joint Director. However, in the remarks Column No.6 on essential condition for promotion to the post of Joint Director has been introduced which prescribes that SSO who possesses otleast three years' analytical work experience of the same post in State/Regional FSL. The above condition has been introduced without prior approval of the Central Government. 12. Section 69 (1) of the Act, 2000 stipulates that: “69. Provisions relating to other services:- (1) Nothing in this section or section 68 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union for any State: Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Madhyo Pradesh or to the State of hah‘isgarh under sec’rion.68 shall no? be varied ’ro his disadvanfage excep? wiTh fhe previous approval of The Central Government" Proviso fo Secfion 69 makes i’r abundanfly clear fhaf condifion of service applicable immediafely before The appointed day fo The service of an allocated employee to the State of 6.6. under Section 68 shall not be varied to his disadvantage except with the previous approval of the Central Government. 13. In the instant case it is not in dispute that before coming into force of Rules, 2006, the $50 in the FSL were eligible for promotion irrespective of whether they are posted in the State or Regional FSL or any other place in the organization. By introducing analytical work experience criteria of 3 years in State/ Regional FSL, the $50 posted in the scene of crime unit have been excluded from the zone of consideration under Rule 14 for promotion to the post of Joint Director, thus, the above amendment is on the face of it change in service condition to the disadvantage of the petitioner. Nothing was brought before us to show that above amendment was made with the prior approval of the Central Government. 14. In the matter of N. Subbarao' etc. Vs. Union of India 6i others reported in AIR 1973 SC 69, State of Andhra Pradesh was formed out of former State of Andhra <Si Telangana of the formerly Hyderabad State. The contention of the respondent/petitioner, officers of Telangona area of the formerly Hyderabad State, was that retrospective regulation and relaxation of rules by the State of Andhra Pradesh subsequent to appointed day would amount to change in condition of service and conferment of new advantages on the officers of the former State of Andhra to the detriment of the Telangana Officers. The Hon'ble Supreme Court, accepting the contention advanced by the Telangana officers that the retrospective relaxation and regularization rules by the State of Andhra Pradesh subsequent to appointed day would amount to change in condition of service and conferment of new advantages to the Andhra officers, to the detriment of the Telangana Officers, held that it would be within the province of the Central Government under Section 115 of the Reorganization Act in regard to the integration of Ch services and ensuring fair and equi.’rable freafmen‘r ’ro all persons whe‘rher fhe refrospec’rive regulariza‘rion and relaxa1ion of rules would amounT 1‘0 any change in fhe condi’rions of service or would resul’r in denial of fair and equi’rable ’rreafmen’r ’ro any of ‘rhe persons and thereby upheld The judgmenf of High Cour? and dismissed The appeal. 15.For ’rhe aforesaid reasons we find subs’rance in fhe argumen‘rs of learned counsel for The pefifioner fhaf addifionol eli9ibilify cri’reria of ”three years' experience of analyTicaI work in S’rafe/Regiond FSL in Column No.6 of Schedule-IV framed under Rule 16 could nof be infroduced wifhouf prior approval of The Cenfral Government 16. From The orders of appoinfmen‘r of Annexure P-10 (Si P-11 if is eviden’r ’rhaf The peTiTioner as also ofher $50 were iniTially appoinTed as Class-III ScienTisT AssisTanT on 30.6.1982 and posTed aT FSL, Sagar (MP). From The rejoinder To The reTurn filed by The peTiTioner, which has noT been rebuTTed by The respondenT’s, iT is evidenT ThaT The peTiTioner served as ScienTisT AssisTanT, subsequenTIy designaTed as ScienTific Officer, in FSL, Sugar aT M.P. for more Than Two years. He was furTher posTed from Time To Time in FSL, Raipur beTween 2003 and 2005. Academic qualificaTion of The peTiTioner and oTher SSO posTed in'scene of crime uniT and STaTe/Regional FSL is also The same. Officers may be Transferred from STaTe/Regional FSL To The scene of crime uniT. 17. IT was argued ThaT STaTe of MP, Haryana & MaharasTra have also framed similar rules for promoTion To The posT of JoinT DirecTor and prescribed eligibiliTy criTeria of experience-of anaIyTicaI work. 18.In The moTTer of P. Venugopal Vs. Union of India reporTed in (2008) 5 SC 1 The Hon'ble Apex CourT held Thus:- “12.A governmenT servanT enTering inTo a governmenT service does noT forego his fundamenTal righTs. On The oTher hand, because of his sTaTus as a person in public employmenT, he acquires addiTional righTs consTiTuTionally ‘proTecTed. The STaTe or oTher public auThoriTies are noT, Therefore, enTiTled To make and impose laws @ governing fhe service condifions of an employee which manifesTIy deprive him of the privileges of That s’ra’rus. A person in public employmen’r is endowed wiTh a sTa’rus noT merely subjecfing him To liabili‘lies and obligation buT also protecting him againsT any orbi’rrory, unreasonable and unequal Treafmem‘. Such a person is also en’ri‘lled ’ro consfifu’rional remedies whefher under Ar’ricle 32 or under Arficle 226 of fhe Consfifufion." 19.In The maTTer of U’r’rar Pr'adesh Power Corporation Limited Vs. Ayodhya Prasad Mishra and another reported in (2008) 10 SCC 139 the Hon’ble Supreme Court has held that it is well settled that equals cannot be treated unequally, and unequals cannot be treated equally. Treating of unequals as equals would as well offend the doctrine of equality as contemplated in Articles 14 & 16 of the Constitution. - 20.In the matter of Council of Scientific and Industrial Research and another Vs. K.G.S. Bhatt and another reported in AIR 1989 SC 1972 the petitioner was Civil Engineer in the Central Food and Technological Research Institute, Mysore under the Council of Spientific and Industrial Research. He was not considered for promotion for two decades between 1961 and 1981. The petitioner impugned the constitutional validity of byelaw 71 (b) (ii) of the Council of Scientific and Industrial' Research which expressly does not cover the case of the civil engineer. The Administrative Tribunal, however, ‘ extended the benefit of that byelaw to the petitioner also and directed the appellant to consider his case for promotion.