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
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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
Print Page
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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