1 S.B. Civil Writ Petition No.4902/2004 Achal Singh Choudhary & Anr. Vs State of Rajasthan & anr. And S.B. Civil Writ Petition No.4913/2004 Hari Ram & anr. Vs State of Rajasthan & Anr. Date of Order: 1.4.2010 HON'BLE MR. PRAKASH TATIA,J. Mr. M. Mridul, Sr.Advocate with Mr. AK Choudhary, for the petitioners. Mr. DS Rathore, for the respondents. REPORTABLE <><><> Heard learned counsel for the parties. Both the writ petitions are being decided by this common order and since the controversy is same, therefore, the facts of SBCWP No.4902/2005 are taken. The petitioners are aggrieved because of the reason that they cannot get promotion on the post of Asst. Director (Junior)/Secretary, Marketing Committee in spite of having 5 years experience on the post of Junior Marketing Officer/Secretary, Marketing Committee because of the reason that for promotion to the post of Asstt. Director (Junior)/Secretary, Marketing Committee, the candidate is 2 required to possess not only the degree of BA, but it must be in subject of Economics or degree of B.Com or B.Sc, not simplicitor but with subject 'Agriculture'. The petitioner no.1 Achal Singh is graduate has obtained degree of B.Sc. in second division whereas the petitioner no.2 Nirmal Kumar Sharma obtained degree of B.Sc. and passed the examination of post graduation and, thereafter, he obtained the degree of MA in history. As stated above, both are having no subject like 'Agriculture' while doing their graduation course of B.Sc. The posts of Marketing Supervisor were advertised by the State Agriculture Marketing Board and in pursuance of which, the petitioners applied and they took written test examination and faced the interview and they were found suitable and they were appointed on the post of Supervisor vide order dated 29th Nov., 1978 initially on temporary basis. The petitioners then confirmed on the said post w.e.f. 1.1.1982 vide order dated 29.1.1982 and both of them were placed in merit point no.4 and 1 respectively in the select list. In the year 1980, the Directorate of State Agriculture Marketing Board was brought into existences and the posts in question were transferred to the Directorate of Rajasthan Agriculture Marketing vide order dated 23.5.1980, copy of which has been placed on record as Annex.3. Consequent to that, the petitioners were 3 transferred to Directorate of Rajasthan Agriculture Marketing w.e.f. 20.8.1980 vide order dated 1.8.1980. The terms and conditions of transferred employees of the Rajasthan State Agriculture Marketing Board were to be decided later on by the Government. It appears that six persons like petitioners whose services have been transferred to the Directorate of Rajasthan Agriculture Marketing, a special provision was made by notification dated 9.1.1986, which appears to be because of the reason that petitioners were already in service after due selection in the State Agriculture Marketing Board and their services have been transferred to the Directorate of Rajasthan Agriculture Marketing and they were not possessing the requisite educational qualification of BA with Economics or B.Com or B.Sc in agriculture and they were only graduate therefore, special provision in the notification dated 9.1.1986 was made for their promotion to the post of Junior Marketing Officer/Secretary Marketing Committee. The schedule with notification dated 9.1.1986 published on 13.1.1986 is relevant which is as under: - S No. Name of the post Method of Rectt. With percentage Direct Recruitment Promotion Remarks Direct Rectt. Prom otion Qualification & Experience Post from which to be made Qualifica tion & experien ce 1 2 3 4 5 6 7 8 4 S No. Name of the post Method of Rectt. With percentage Direct Recruitment Promotion Remarks 1 Junior Marketing Officer/Secre tary Market Committees 50 per cent 50 per cent BA with Economics as one of the subject or B.Com or B.Sc. (Agriculture) of a University established by law in India. Marketin g Supervis or 5 years service on the post mention ed in Col.6 1. After promoting all the six Marketing Supervisors the post shall be 100% filled in by Direct Recruitment 2.25% of the posts Direct Rectt. Quota shall be reserved for being filled in from amongst the Marketing Supervisors and Ministerial Staff of the Deptt. And Assistant Secretaries Marketing Supervisor and Ministerial staff of the Marketing Committee subject to their possessing qualification mentioned in Col.5. The petitioners then after getting the promotion on the post of Marketing Officer/Secretary, Marketing Committee discharged their duties obviously along with the persons who were appointed either before the petitioners or after promotion of the petitioners, but who had educational qualification of BA with Economics or B.Com or B.Sc. with Agriculture as subject. The petitioners' contention is that the duty assigned to the post of Junior Marketing Officer/Secretary Marketing Committee is the same for all the persons promoted or appointed by direct recruitment. It is submitted that as per the rules a person working on the post of Junior Marketing Officer/Secretary Marketing committee after completing 5 years experience on the post 5 of Junior Marketing Officer/Secretary Marketing Committee becomes eligible for promotion to the post of Asstt. Director (Junior)/Secretary Marketing Committee. The post of Asstt. Director (Junior)/Secretary, Marketing Committee can be filled up 50% by promotion and 50% by direct recruitment. The educational qualification for promotion to the Asstt. Director (Junior)/Secretary, Marketing Committee is again BA with Economics or B.Com or B.Sc. with Agriculture. The petitioners who were given promotion to the post of Junior Marketing Officer/Secretary Marketing Committee without there being having special subject Economics or Agriculture in their graduation yet they have been promoted to the post of Junior Marketing Officer/Secretary, Marketing Committee but now for further promotion it is objected that the petitioners are lacking in educational qualification as they are not having subject like Economics or Agriculture in their graduation. Learned counsel for the petitioners vehemently submitted that and referred the various clauses of duties by which the duties have been assigned to the Marketing Officer/Secretary, Marketing Office and duties assigned to the Asstt. Director (Junior)/Secretary Marketing Committee. There is no difference in the duties assigned to the persons working on a particular post because of his educational qualification with special subject as Economics or Agriculture in graduation and persons like petitioners who had no 6 subject of specialities in the graduation like Economics or Agriculture. Learned counsel for the petitioner vehemently submitted that once the petitioners services have been transferred to the Director of Rajasthan Agriculture Marketing by the order passed by the respondents and when special provision has been made in the service rules itself for 6 petitioners dispensing with the requirement of speciality in the subject of Economics or Agriculture and when they are discharging the same duties which are discharged by other persons working on the same post, alongwith the petitioners then discriminating the petitioners for the purpose of promotion violates the Article 14 of the Constitution of India. It is also submitted that there is no nexus for prescribing the subject of Economics or Agriculture for promotional post because of the reason that if a person can discharge duties of Junior Marketing Officer/Secretary, Marketing Committee without there being any special subject in his course like Economics or Agriculture and can discharge the duties with persons having special subject then for promotion that special subject has no relevance. Learned counsel for the petitioners also drew my attention to the duties assigned to the post of Junior Marketing Officer/Secretary, Marketing Committee vis-a-vis Asstt. Director (Junior)/Secretary Marketing Society to show that with higher responsibility and the same duties are discharged by the persons 7 appointed for two sets of two posts. The respondents submitted reply to the writ petition,but virtually have not denied any fact stated by the petitioners in the writ petition by saying that the relevant paras of the writ petition need no reply. It appears that is because of the reason petitioners are relying upon all the orders passed by the respondents as well as upon the rules governing service conditions providing appointment and promotions. In the reply to the writ petition not a single word has been stated about justification of prescribing special subject Economics or Agriculture in the rules referred above. This court after hearing the parties at length vide order dated 11.3.2010 directed the respondents State to state on oath whether notification dated 9.1.1986 containing special provision was made for the persons like petitioners or not as petitioners submitted only a typed copy of the notification dated 9.1.1986. The respondents in response to that direction submitted affidavit and admitted that notification dated 9.1.1986 was published on 13.1.1986. The six supervisors-(petitioners) were promoted on the post of Junior Marketing Officer/Secretary, Marketing Committee and that to when petitioners had no special subject referred above. The petitioners were duly selected in the year 1980 in the department of State Agriculture Marketing Board. The petitioners' services have been transferred to the Directorate, Rajasthan Agriculture 8 Marketing in the year 1980. It is not a case of the respondents that the petitioner voluntarily opted for the new service conditions or voluntarily opted of shifting of their services to the newly constituted Directorate of Rajasthan Agriculture Marketing Committee. As these facts have not been denied by the respondents and in view of notification dated 9.1.1986 it appears that special provisions was made in the schedule by the notification dated 9.1.1986 published in the gazette dated 13.1.1986 making a provision of the promotion of the petitioners to the post of Junior Marketing Officer/Secretary Marketing Committee from the post of Marketing Supervisor and this special provision appears to have been made because of the reason that the petitioners were not possessing the requisite education qualification of having special subject Economics or Agriculture in their graduation. It is also not in dispute that the persons who have been appointed by way of promotion or by direct recruitment at the post of Junior Marketing Officer/Secretary Marketing Committee are discharging the same duties and without there being any difference on the basis of educational qualification by the two sets of the employees selected for the post either by direct recruitment or by promotion. It is also not in dispute that the petitioners are governed by the same service rules. If the additional subject which was not necessary for the petitioners at the time of first promotion if will come in the 9 way of the petitioners then the petitioners will not get any promotion in their entire service career for not fault of the petitioners. If the petitioners services would not have been transferred then the petitioner would have got the promotions in that wing where they were appointed originally i.e., in the State Agriculture Marketing Board. Since the respondents failed to show any reason for treating the petitioners differently from the persons who are given appointment on the post of Junior Marketing Officer/Secretary Marketing Officer by direct recruitment or promotion with additional subject and also failed to show that there is some object which can be achieved by preferring the educational qualification of BA with special subject like Economics and B.Com or B.Sc. with special subject as Agriculture for further promotion to the post of Asstt. Director (Junior)/Secretary Marketing Committee, therefore, denial to petitioners from promotion is in violation of Article 14 of the Constitution of India. At this juncture it will be relevant to mention here again that petitioners' services have been transferred and special provision has been made by notification dated 9.1.1986 for giving promotion to the petitioners on the post of Junior Marketing Officer/Secretary Marketing Officer without there being their educational qualification of graduation with special subject Economics or Agriculture, therefore, there case is separate and for further promotion 10 those educational qualification which was prescribed for giving initial appointment for the post of Junior Marketing Officer/Secretary Marketing Officer which has not come in the way of the petitioner for promotion for the lower post then that educational qualification as such cannot come in the way of the petitioners for consideration of their case for promotion to the post of Asstt. Director (Junior)/Secretary, Marketing Committee and hence, it is held that that condition of having special subject Economics or Agriculture for promotion from the post of Junior Marketing Officer/Secretary Marketing Committee to the post of Asstt. Director (Junior)/Secretary, Marketing Committee will not come in the way of the petitioners and respondents are required to consider the case of each individual petitioner for promotion to the post of Asstt. Director (Junior)/ Secretary, Marketing Committee, as the case may be for the petitioners and to give promotion to them on the said promotional post from the date the junior persons to the petitioners have been given promotion with all consequential benefits except the backwages but with seniority and other benefits. Accordingly, the writ petitions are allowed as indicated above. [PRAKASH TATIA], J. cpgoyal/-