All Assam Extension Officers (Credit) Association and Others vs State of Assam and Others

D. Biswas, J.—The All Assam Extension Officers'' (Credit) Association, represented by its President and others have challenged the validity of the "provisions of Orders 3 and 5 of the Service Orders, 1990 (Annexure-"D") on the ground that the provisions incorporated therein regarding the method of filling up the posts of Block Development Officers are violative of the rights of the Petitioners guaranteed under Articles 14 and 16 of the Constitution of India.

Mr. R.P. Sarma, learned Counsel for the Petitioners pointed out that the Governor of Assam vide Notification dated 27.6.89 (Annexure-"A") amalgamated the Directorate of Panchayat and Community Development, and the Directorate of Rural Development into one Directorate with effect from 1.7.89. The new Directorate so emerged has been named as Directorate of Panchayat and Rural Development. According to him, the writ Petitioners who were working as Extension Officers (Credit) all along enjoyed higher scale of pay and were superior in rank and status to the Extension Officers (Women and Children) and Extension Officers (Panchayat) of the erstwhile Directorate of Panchayat and Commimity Development. According to the learned Counsel for the Petitioners, since the Petitioners were all along higher in rank, pay and status, they cannot be equated with the Extension Officers under the Directorate of Panchayat and Community Development in the matter of promotion to the next higher grade and, therefore, the provisions incorporated in Orders No. 3 and 4 of the impugned Executive Order are arbitrary and malafide and cannot be sustained in law. It is further argued that the Extension Officers (Credit) were treated separately all along as this is evident from the seniority list published on 4.6.91 (Annexure-"C").

Mr. H.N. Sarma, learned Govt. Advocate for the Respondent State relied upon the decision of the Supreme Court in Union of India and others Vs. S.L. Dutta and another, and Director, Lift Irrigation Corporation Ltd. and Others Vs. Pravat Kiran Mohanty and Others, to refute the submissions advanced by the learned Counsel for the Petitioners. It may be mentioned here that the averments made in the writ petition remain uncontroverted as the State goes by omission to file any affidavit-in-opposition.

On this background, we are to examine as to whether the provisions of Orders 3 land 5 are violative of the Petitioners'' right under Articles 14 and 16 of the Constitution.

Annexure-"A" is the notification dated 26.6.89 issued by the State Government in the Panchayat and Rural Development Department amalgamating the Directorate of Panchayat and Community Development, and the Directorate of Rural Development with effect from 1.7.89. The Directorate so emerged came to be known as the Directorate of Panchayat and Rural Development. Before amalgamation, the Petitioners joined the Directorate of Rural Development as Extension Officers (Credit) in the pay scale of Rs. 1475-40-125-3825/- per month. Normally, Extension Officer (Credit) was promoted to the post of Assistant Project Officer in the pay scale of Rs. 1485-4200/- or to the post of Senior Block Development Officer in the scale of Rs. 1835-4325/-. There were other sets of Extension Officers known as the Extension Officers (Panchayat) and Extension Officers (Women and Children) in the erstwhile Panchayat and Community Development Department in the pay scale of Rs. 1285-3075/-. It would appear that the Petitioners were in higher grade of pay in comparison to the other groups of Extension Officers. That apart, the Petitioners have also been conferred with the Gazetted status by the State Government vide notification dated 8.9.89 (Annexure-"B"). It is, therefore, obvious that the Petitioners were above the Extension Officers of the other groups for all purposes and, as such, they cannot be equated with the officers of lower rank and status in the matter of promotion in the amalgamated Department. The impugned Executive Orders prescribing the procedure for filling up the posts of Block Development Officer provides that 40% of the posts are to be filled up by direct recruitment, 20% from the Extension Officers (Panchayat), 20% from the Extension Officers (Women and Children) and 20% from the Extension Officers (Credit). The distribution of promotional posts treating the Extension Officers of all groups alike appears to be in derogation of the status, position and pay of the Petitioners inasmuch as they have been placed at par with the officers who are lower in rank, status and pay. Such equalisation amongst unequals definitely attracts doctrine of equaly opportunity in the matter of employment and promotion as provided in Articles 14 and 16 of the Constitution. The doctrine of equality intended to advance justice by avoiding discrimination may be invoked only when equals are treated unequally, and imequals are treated as equals. In my opinion, the provisions incorporated in the Orders 3 and 5 have placed the Petitioners in a disadvantageous position jeopardising their prospect for promotion to the next higher grade with undue advantage to the officers in the lower grade.

In the Directorate, Lift Irrigation (supra), the Apex Court has laid down the law that the policy decision taken on administrative exigency is not open for judicial review unless it is malafide, arbitrary and bereft of discernible principle. In the instant case, the amalgamation was made in the interest of public service and administrative convenience and this being the policy matter of the State Government is not subject to judicial review. The amalgamation of the two departments with effect from 1.7.89 became final and it is not open to challenge. This negates the desire of the Petitioners to maintain separate identity for themselves unless the State agree. However, consequent upon amalgamation, the newly formed Directorate is required to initiate certain follow up action to streamline the service conditions of the officers. without first integrating the services of different categories of Extension Officers into one cadre and without determining the inter-se seniority of such officers, distribution of promotional posts amongst different categories of officers on quota basis cannot but be treated as unreasonable and arbitrary. There is no escape from this inevitable course of events. The combined seniority list thus prepared shall form the basis for consideration of officers for promotion to the next higher grade. Unless this is done, filling up of the promotional posts by distribution of quotas to the officers in different grades having disparity in service conditions-in rank, status and pay will definitely prejudice the rights of the Petitioners.

The learned Counsel for the State could not explain satisfactorily the reasons which promoted the authorities in determining and prescribing the quotas placing at par the Petitioners with the officers of inferior category. It is true that complicated administrative problems are likely to arise when two or more departments are amalgamated. This necessitates suitable adjustments on various counts. A Court may overlook minor deviations here and there in the process of such adjustment. But in the name of adjustment, no Court can allow major aberrations detrimental to one group of the employees. In Union of India v. S.L. Dutta (supra), the Supreme Court laid down that in absence of arbitrariness a change in policy relating to promotional avenue cannot be questioned by a Court. The Apex Court further observed that while a right for consideration for promotion is a term of service, the chances of promotion are not and, as such, any change in the policy not affecting the chances of promotion is, therefore, beyond the scope of judicial review, as the right for consideration for promotion still remains. The ratio of this case cannot be conveniently invoked to sustain the inpugned Executive Orders in view of the arbitrary and unreasonable manner in which the promotion posts have been reserved for different categories of officers having marked difference in rank, pay and status. The action is ex-facie detached from all known judicial norms.

In the result, the writ petition is allowed. The provisions incorporated in Orders 3 and 5 of the Executive Order dated 2.6.95 (Annexure-"D") are hereby quashed. The Respondents may like to integrate the different cadres of Extension Officers into a common cadre and publish an integrated seniority list in accordance with law and, thereafter proceed to fill up the promotional posts on the basis of merit-cum-seniority of the officers from the combined list so published. An endeavour shall also be made to frame the service rules under the provisions of Article 309 of the Constitution within a self-imposed time frame. It is needless to point out that promotions made during the pendency of this case, in view of the interim order dated 30.10.85, will have to be reviewed (sic)diate after completion of the above exercise.

No order as to costs.