1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3424 OF 1997 1 Santosh Ekoba Sonavane, age: major, Occ: service, R/o Ajantha, Tq.Sillod, District Aurangabad. 2 Ranganath Shahaji Ghorpade, age: major, Occ: service, R/o Aamthana, Tq. Sillod, District Aurangabad. 3 Sudhakar Radhakrushna Kulkarni, age: major, Occ: service, R/o Bharadi, Tq.Sillod, District Aurangabad. 4 Kisan Shivpuri Gosavi, age: major, Occ: service, R/o Ambhai, Tq. Sillod, District Aurangabad. 5 Laxman Shankar Gond, age: major, Occ: service, R/o Nillod, Tq. Sillod, District Aurangabad. Petitioners Versus 1 State of Maharashtra, through the Secretary, Rural Development Department, Mantralaya, Mumbai-32. 2 Secretary, School Education Department, Mantralaya, Mumbai-32. 2 3 The Chief Executive Officer, Zilla Parishad, Aurangabad. 4 The Education Officer (Primary), Zilla Parishad, Aurangabad. 5 Sk.Babu Sk. Sandu, age: major, Occ: service, Education Extension Officer, Shiur, Tq. Vijapur, District Aurangabad. 6 Divansingh Udaysingh Jadhav, age: major, Occ: service, Education Extension Officer, Soygaon, Tq. Soygaon, District Aurangabad. 7 Keshav Dhudku Patil, age: major, Occ: service, Education Extension Officer, Pishor, Tq.Kannad, District Aurangabad. 8 Vijay Jagannath Daund, age: major, Occ: service, Education Extension Officer, Lasur, Tq. Gangapur, District Aurangabad. 9 Baburao Bhagaji Pandit, age: major, Occ: service, Education Extension Officer, Fullambri, Tq. Fullambri, District Aurangabad. 10 Bhikaji Ranuji Pradhan, age: major, Occ: service, Education Extension Officer, Banoti, Tq. Soygaon, District Aurangabad. 3 11 P.Y.Kulkarni, age: major, Occ: service, Education Extension Officer, Aurala, Tq.Kannad, District Aurangabad. 12 Atmaram Vishnu Borade, age: major, Occ: service, Education Extension Officer, Chauka, Tq.Aurangabad, District Aurangabad. 13 Sk.Nizamuddin Sk.Shahbuddin, age: major, Occ: service, Education Extension Officer, Turkabad Kharadi, Tq.Gangapur, District Aurangabad. 14 Digambar Gopalrao Bhandari, age: major, Occ: service, Education Extension Officer, Gangapur, District Aurangabad. Respondents Mr.A.S.Deshpande, advocate for petitioners. Mrs.R.K.Ladda, A.G.P. for Respondents No.1 & 2. Mr.Deelip Patil Bankar, advocate for Respondents No.3 & 4. Mr.S.B.Talekar, advocate for Respondents No.5, 8, 9 & 12 to 14. CORAM: B.R.GAVAI AND S.V.GANGAPURWALA, JJ. DATE : 2 nd July, 2010. ORAL JUDGMENT (Per B.R.Gavai, J.): 1 Petitioners, by way of present petition, challenge the judgment and order dated 06.01.1997, passed by learned Additional Commissioner, Aurangabad Division, Aurangabad, thereby dismissing appeals filed by 4 present petitioners; and the orders of promotion issued in favour of Respondent No.5 to 14 to the post of Extension Officer (Education) in District Technical Services Class III Grade II. 2 Petitioners were initially appointed as Assistant teachers under the administration of Zilla Parishad. All the petitioners are possessing graduation degree along with degree in education. As such, petitioners are in the category of trained graduate teachers. On the basis of their seniority in the said cadre, petitioners were promoted as `Kendra Pramukh’ in the Central Schools. Subsequent to the promotion of petitioners to the post of Kendra Pramukhs, Respondents No.5 to 14 came to be promoted as Extension Officers (Education) in District Technical Services Class III Grade II. Aggrieved by the said promotion, petitioners preferred appeals before the Divisional Commissioner. Same are rejected. Hence present petition. 3 Shri Deshpande, learned Counsel for petitioners, submits that though petitioners are senior in the cadre of Assistant teachers to Respondents No.5 to 14, said respondents have been put in higher cadre and they would also be writing confidential reports of the petitioners. He, therefore, submits that it was incumbent upon Respondent-Zilla Parishad to have considered the claim of the petitioners for promotion to the post of Extension Officer. According to the learned Counsel, having not done so, promotion granted in favour of respondents no.5 to 14 is liable to be set aside. 4 Shri Talekar, learned Counsel appearing on behalf of the employees who have been promoted, on the contrary, submitted that vide Government Resolution dated 14.11.1994, a separate cadre of Kendra Pramukhs has been created and that petitioners, having opted for said 5 cadre, are now estopped from claiming promotion to the post of Extension Officer, which is exclusively available to the Assistant teachers. It is submitted by Shri Talekar that petitioners cannot blow hot and cold at the same time. It is submitted that if petitioners were interested in the post of Extension Officer (Education), they could have denied promotion to the post of Kendra Pramukh. He submitted that having accepted the post of Kendra Pramukh, petitioners are now estopped from making grievance regarding their non consideration for promotion to the post of Extension Officer (Education). 5 Shri Bankar Patil, learned Counsel appearing for Zilla Parishad, submits that in view of the clarification dated 31.01.1996, issued by the State Government, which clarified that persons holding the post of Kendra Pramukh were not eligible to be promoted as Extension Officers, the Zilla Parishad had rightly promoted Respondents No.5 to 14. 6 Learned Assistant Government Pleader also submits that in view of the Government Resolution of 1994, contention of petitioners is without basis. 7 To appreciate rival submissions, it will be necessary to refer to some statutory provisions. Section 248 of Zilla Parishads and Panchayat Samitis Act, 1961 (hereinafter referred to as `the said Act’) enables the State Government to make Rules regulating recruitment, etc. Said Section reads thus: 248 Recruitment and conditions of service of persons serving the Zilla Parishad – Subject to the provisions of 6 this Chapter, the State Government may make rules regulating - (a) the recruitment (including reservation for Scheduled Castes and Scheduled Tribes and Backward Classes), functions and terms and conditions of service (including payment of dearness allowance and all conduct and disciplinary matters) of persons appointed to the District Technical Service (Class III), District Service (Class III) and District Service (Class IV), and (b) the payment to be made by the Zilla Parishad towards pension, gratuity and other benefits as respects officers and servants who have been serving any existing board and who become servants of the State Government, or the payments to be made to the State Government towards such matters in respect of State Government servants who have become members of the services under Zilla Parishad : Provided that, if the State Government considers it expedient so to do, it may also regulate the conditions of service as respects pay-scales, dearness and other allowances, leave, pension, provident fund or any other matter in relation to conditions of service, by a general or special order. 8 Section 274 of the said Act and specifically clause (xxxix) of sub-section 2 thereof enables the State Government to frame rules regarding recruitment. Sub-section 3 provides for condition of previous publication of the rules. Sub-section 4 requires the rules to be laid before each House of the State Legislature as soon as they are made and the said rules are subject to such modifications as the Legislature may make during the session. In accordance with the powers vested with the State Government by virtue of Section 248 and Section 274 sub-section (2) clause (xxxix), the State has framed Maharashtra Zilla Parishads District Services (Recruitment) Rules, 1967. 7 Rule 5 of the said Rules deals with qualifications and methods of appointment. Appendices I to XII prescribe necessary qualifications, methods of appointment, etc. Presently, we are concerned with Appendix IV (Part I) clauses 1 to 3. APPENDIX IV (Part I) (See Rule 5) Rules laying down the qualifications of candidates for and methods of appointment to posts included in the District Technical Service (Class III) (Educational) and District Service (Class III) (Subordinate Educational) Sr. No. 1 Service and Cadre 2 Post 3 Qualifications for and methods of appointment 4 1. District Technical Service (Class III) (Educational) Grade I. (i) Senior Extension Officer (Education). (ii) Assistant Education Officer (Senior). (1) Appointment shall be made by promotion of persons in District Technical Service (Class II) (Educational) Grade II who have completed not less than three years of continuous service in that grade and of trained graduate Assistant Teachers in Secondary Schools in the District Technical Service (Class III) (Educational) who possess 6 years of post – B.Ed. Teaching experience. (2) The promotion of Assistant Teachers in Secondary Schools shall not exceed 20 percent of the posts. 2 District Technical Service (Class III) (Educational) Grade II. (i) Extension Officer (Education). (ii) Assistant Education Officer. (iii) Senior Assistant Deputy Education Inspector. (1) Appointment shall be made by- (a) promotions of persons in District Technical Service (Class III) (Education) Grade III who have completed not less than 5 years of continuous service in that grade. (b) temporary transfer of suitable persons from amongst 8 Assistant Teachers in District Technical Service (Class III) (Educational) and from amongst Primary School Teachers and Masters in District Service (Class III) (Subordinate Educational) who- (i) possess at least 3 years of post B.Ed., (or equivalent qualification) teaching experience in Primary or Secondary Schools, or a Junior College of Education, or (ii) possess at least 3 years of post B.Ed. (or equivalent qualification) experience of inspection of Primary or Secondary Schools, or (iii) possess 5 years teaching experience after passing the S.S.C. Examination and acquiring teacher’s training qualifications. OR (c) nomination from amongst candidates who - (i) unless already in the service of the Zilla Parishad, are not more than 35 years of age, (ii) are graduates of a recognised University, and 1(iii) (a) possess at least 3 years of post – B.Ed. (or equivalent qualification) teaching experience in Primary or Secondary Schools, or a Junior College of Education, or (b) possess at least, 3 years of post B.Ed. (or equivalent qualification) experience of inspection of Primary or Secondary Schools, or (c) possess 5 years teaching experience after passing of the 9 S.S.C. Examination and acquiring teacher’s training qualifications : Provided that the age limit may be relaxed in the case of candidate possessing good qualification and/or experience : Provided further that nothing in these rules shall affect appointments already made by the Appointing Authority by way of transfer/temporary transfer of the Assistant Teachers in District Technical Service (Class III) (Educational) or the Primary School Teachers in District Service (Class III) (Subordinate Educational) if such Assistant Teachers of the Primary School Teachers continued to hold the post of Extension Officer (Education), Grade II or Senior Assistant Deputy Educational Inspector for more than one year on the 1 st January, 1976. (2) Not less than 75 per cent of the posts shall be filled in by nomination and transfer. (3) Persons appointed to this post may be required to undergo training course for Social Education. Such of them who are selected to undergo this training shall execute an agreement bond in the appended Form `A’. 3 District Technical Service (Class III) (Education) Grade III (i) Junior Extension Officer (Education). (ii) Assistant Deputy Educational Inspector (iii) Assistant Educational Officer (Junior) (1) Appointment shall be made by promotion from amongst -- (a) Assistant Masters, Assistant Mistresses, Drawing Teachers, Hindi Teachers and Domestic Science Masters/Mistresses who hold S.S.C. And S.T.C. Or equivalent qualifications and possess at least 7 years of teaching experience in 10 Secondary or Middle Schools: Provided that the teaching experience may be reduced to 3 years in respect of those who are B.A. Or B.Sc. And S.T.C. Or T.D. OR (b) trained primary teachers in Districts Service (Class II) (Subordinate Educational) and authorised Municipalities in the District of the Zilla Parishad, who possess good physique, and (i) have completed not less than 10 years of continuous service after obtaining teaching qualifications in the case of those who have passed S.S.C. Or equivalent examination and 15 years of continuous service after obtaining teaching qualifications in the case of those who have passed P.S.C. Or an examination equivalent thereto, or (ii) have graduated while in service, hold B.Ed. Or equivalent degree and have completed not less than 7 years of continuous service as trained (Primary) Teachers, OR (c) Assistant Extension Officers (Education) and Education Assistants in District Service (Class III) (Subordinate Educational) Grade I who held S.S.C. And S.T.C. And have completed not less than 7 years of continuous service in that grade. (2) Not less than 75 per cent of the posts shall be filled in by promotion of trained Primary Teachers falling in category (1) (b) above. 11 (3) Persons appointed to this post may be required to undergo training course for Social Education. Such of them who are selected to undergo this training shall execute an agreement bond in the appended Form `A’. 9 It can be seen that recruitment in the cadre of District Technical Service (Class III) Grade III (Junior Extension Officer) is required to be made by promotion from amongst Assistant Masters, Assistant Mistresses, etc., who hold S.S.C. and S.T.C. or equivalent qualifications and who possess at least 7 years of teaching experience in Secondary or Middle Schools. However, in case of teachers having Graduate degree, the requirement of teaching experience is reduced to 3 years. Category (b) provides for promotion of trained primary teachers in District Service (Class II) who have completed not less than 10 years of continuous service after obtaining teaching qualifications in the case of those who have passed S.S.C. or equivalent examination and 15 years of continuous service after obtaining teaching qualifications in the case of those who have passed P.S.C. or an examination equivalent thereto. It also provides promotion of the persons who have graduated while in service and hold B.Ed. or equivalent degree and have completed not less than 7 years of continuous service as trained primary teachers. It also provides for promotion of Assistant Extension Officers. Not less than 75% of the posts are required to be filled in by promotion of trained primary teachers falling in category (1)(b). Then there is further promotional cadre of District Technical Service (Class III) Grade II i.e. Extension Officer (Education), etc. In the said cadre, appointments are to be made by promotion of persons in District Technical Service (Class III) Grade III who have 12 completed not less than 5 years of continuous service in that grade or by temporary transfer of suitable persons from amongst Assistant Teachers in District Technical Service (Class III) and from amongst Primary School Teachers, who possess at least 3 years of post B.Ed., or equivalent qualification, teaching experience in Primary or Secondary Schools, etc. It also provides for nomination from amongst candidates, who are unless already in the service of Zilla Parishad, graduate of a recognised University and possess at least 3 years of post B.Ed. or equivalent qualification, teaching experience in Primary or Secondary Schools, etc. Said rule requires that not less than 75 per cent of the posts shall be filled in by nomination and transfer. Then there is a promotional cadre of District Technical Service (Class III) Grade I i.e. Senior Extension Officer (Education), which provides that the said post shall be filled in by promotion from the persons in District Technical Service Class II who have completed not less than three years of continuous service in that grade and of trained graduate Assistant Teachers in Secondary Schools in the District Technical Service (Class III) who possess 6 years of post B.Ed. teaching experience. 10 It can thus be clearly seen that for the post of Junior Extension Officer, any `trained primary teacher’ including a `trained graduate teacher’ would be entitled to be promoted on the basis of his seniority. Not only that, but even for the post of Extension Officer (Class III) Grade II, a person would be entitled to be promoted, if he is already in District Technical Service (Class III) Grade III; and by temporary transfer from amongst Assistant Teachers in District Technical Service (Class III), who are trained graduates; and by nomination, if he possesses qualification of trained graduate teacher and 3 years teaching experience. A person, in that grade, would be further entitled to be promoted to District Technical Service (Class III) Grade I i.e. 13 Senior Extension Officer. It is not in dispute that confidential reports of Kendra Pramukhs are recorded by Extension Officer in the cadre of Grade II. It is, thus, clear that if contention of respondents is to be accepted, a person junior to Kendra Pramukh would be entitled to travel to the post of Extension Officer and also further to the post of Senior Extension Officer and would be in a position to write confidential reports of a person who is much senior to him. It further appears that if contention of the respondents is to be accepted, a person, who once accepts the post of Kendra Pramukh, for all the years, he would be deprived to be considered for all promotional avenues, further enabling his juniors to ride higher on the ladder and be superior to him. 11 We are unable to accept the contention of learned Counsel Shri Talekar that a separate cadre can be created by the Government Resolution. Reading the provisions of Sections 248 & 274, it would be clear that matters regarding recruitment, etc. are to be regulated by rules to be framed by the State Government in accordance with Section 274. No doubt, that a power is given to the State Government under Sections 248 and 274 itself that in the matter of exigency, the Government may also regulate conditions of service by a general or special order. However, it is a settled law that a proviso cannot be permitted to govern substantive provision. When a substantive provision mandates the Government to frame rules regarding recruitment, etc., the proviso will have to be read in the manner that it permits the Government to depart from the main provision if exceptional and compelling case is made out. 12 The post of Kendra Pramukh has been created in the year 1994. Almost sixteen years have lapsed therefrom. We are of the considered view 14 that it is on account of non exercise of powers by the State Government to make necessary amendment to the Rules that this anomalous situation has arisen. After creation of post of Kendra Pramukh, we find that it was necessary for the State Government to make appropriate amendment to the Rules. Not only this, but a communication dated 07.06.1996, addressed by the State Government to the Divisional Commissioner, would also reveal that the Government was considering amalgamation of cadres of Extension Officer and Junior Extension Officer and making necessary amendment to the recruitment rules in the said cadre. The Government was also proposing to consider giving promotion to Kendra Pramukhs in the cadre of Extension Officer. 13 We find that existing rules, which create such an anomalous situation and permit a junior person to travel much higher in the ladder and become superior to a senior person and at times may even be much more qualified than him, are not capable of taking care of present situation. 14 Another aspect of the matter is that, the Apex Court, in the case of Union of India and another Vs. Hemraj Singh Chauhan, reported in AIR 2010 SC 1682, has held that making available promotional avenues is one of the facets of fundamental rights flowing from Articles 14 & 16 of the Constitution. The existing rules, which deprive a qualified candidate not to be even considered for promotion, apart from being promoted and permit a junior person to be promoted and become superior to a senior person, in our view, would violate fundamental rights of persons like petitioners. However, since petitioners have not challenged validity of the said Rules, we are not inclined to answer the issue regarding validity or otherwise of said Rules. 15 15 We are, therefore, of the considered view that, in the facts of the present case, it is necessary that the State Government makes necessary amendment to the Rules so as to remove this anomalous situation. 16 Writ Petition is, therefore, disposed of by directing the State Government to make necessary amendment to the Rules in the light of what has been observed by us herein above, within a period of six months from today. It is needless to say that on the State Government carrying out necessary amendment, case of the petitioners would be reconsidered by the Zilla Parishad for giving them benefits, if they are entitled under the amended Rules. In the facts and circumstances of this case, there shall be no order as to costs. (S.V.GANGAPURWALA) (B.R.GAVAI) JUDGE JUDGE ******* adb/wp342497