Tuesday, 5 April 2016

Whether govt can create separate cadre in govt job by govt resolution?

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.  
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3424  OF 1997   
 Santosh Ekoba Sonavane,
  
Versus
 State of Maharashtra,
  
CORAM: B.R.GAVAI AND 
   S.V.GANGAPURWALA, JJ.
DATE     : 2nd July, 2010.



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

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 Respondent­Zilla 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

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
::: Downloaded on - 05/04/2016 19:03:24 :::Bombay High Court
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 pay­scales, 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
sub­section 2 thereof enables the State Government to frame rules regarding
recruitment.   Sub­section 3 provides for condition of previous publication of
the rules.  Sub­section 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   sub­section   (2)   clause   (xxxix),   the   State   has
framed Maharashtra Zilla Parishads District Services (Recruitment) Rules, 1967.

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

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

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 1st 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

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.

(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

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.

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

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 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

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