Sushma Devi vs State of Himachal Pradesh and Others

Tarlok Singh Chauhan, J.—The petitioner is aggrieved by the notification dated 19.6.2010, whereby the respondents have amended the minimum educational qualification for recruitment to the post of Anganwari worker and has therefore filed this writ petition, wherein the following substantive reliefs have been claimed:-

(a) That the respondents No. 1 to 5 may kindly be ordered to produce entire record of the case;

(b) That notification dated 19.06.2010 vide Annexure P-4 whereby the respondents have made amendment in the minimum education qualification for recruitment to the post of Anganwari Worker as plus two retrospectively be declared to be illegal, wrong, null and void, arbitrary, discriminatory and unconstitutional and as such the same be set-aside and quashed.

(c) That in the alternative it is most respectfully prayed that educational criteria as fixed under notification dated 19.6.2010, Annexure P-4, may not be made applicable immediately and at least to the already working employees be given reasonable time for upgradation of their education for at least three to four years.

(d) It is also most respectfully prayed that in case the respondents department appoint direct recruitment on he basis of Annexure P-4 notification in that case seniority and other claims of the petitioner be not affected in any manner.

The brief facts are that petitioner came to be appointed as Anganwari Helper vide order No. 2/98 dated 25.5.2000 and joined at Anganwari Centre Dakolu. The scheme/guidelines, which were issued on 5.10.2009, show that educational qualification for appointment of Anganwari worker was Matric or equivalent and for Helper the educational qualification was primary. But now the respondents vide notification dated 19.6.2010 has enhanced the educational qualification to plus two instead of Matric, which according to the petitioner is illegal, wrong, arbitrary and defeats the legitimate claim of the petitioner. It is further contended that having gained experience by the petitioner w.e.f. 25.5.2000, that in itself should be counted as a qualification and should not debar the petitioner for consideration to the post of Anganwari Worker.

In response to the writ petition, the respondents have filed their reply, wherein it is alleged that prior to the amendment in the guidelines on 19.6.2010, the educational qualification for the post of Anganwari Worker was Matric and for Anganwari Helper was primary. However, to bring about efficiency, the State government has raised the qualification. It has further been averred that with the spread of facilities/institutions in the State, the literacy rate of women in the State has increased and therefore, the educational qualification has rightly been enhanced.

I have heard the learned counsel for the parties and have gone through the records of the case.

Whether the experience gained for a considerable length of time in itself is a qualification is no longer res integra and has been dealt with in plethora of cases. Reference in this regard can be made to a learned Division Bench judgment of this court of which I was one of the members in Raj Kumar-II Vs. The State of H.P. , wherein this Court held as follows:

"14. The apex Court in case titled B.N. Saxena Vs. New Delhi Municipal Committee and others, AIR 1990 SC 2021 : (1991) 61 FLR 357 : (1990) 3 JT 284 : (1990) 2 SCALE 137 : (1990) 4 SCC 205 : (1990) 2 UJ 408 held that experience gained for a considerable length of time is itself a qualification. It is apt to reproduce paras 6 and 7 of the said judgment herein:

"6. The question is whether the petitioner possesses the prescribed qualification. The revised rules provide alternate qualifications for the post of Head Draftsman. The first part of the rule prescribes a diploma with a minimum of three years service as Senior Draftsman in the scale of Rs. 250-400. The second limb of the revised rule refers to the service rendered by the candidate. It provides for six years of service as Senior and Junior Draftsman. The first part of the rule is almost similar to the qualification prescribed prior to the amended rules. The old rule provided:

"Matric with Diploma/certificate in Draftsmanship from a recognized institution with 3 years experience in preparation of Engineering Drawings in an Electric supply undertaking or an engineering manufacturing organization."

The second limb of the rule was evidently, to benefit all those persons who have gained sufficient experience as Senior and Junior Draftsmen without possessing any qualification. Experience gained for a considerable length of time is itself a qualification (See the observation in State of U.P. and Others Vs. J.P. Chaurasia and Others, (1989) 58 FLR 381 : (1988) 4 JT 53 : (1989) LabIC 1146 : (1989) 1 LLJ 309(1) : (1988) 2 SCALE 827 : (1989) 1 SCC 121 : (1988) 3 SCR 288 Supp . It would be unreasonable to hold that in addition to this considerable experience, one must also have the diploma qualification prescribed under the first part. It could not have been the intention of the rule making authority that persons who were designated as Senior Draftsmen, without any Diploma qualification should acquire such diploma qualification for further promotion. Such, a view would not be consistent and coherent with the revised rule and its object. We have no doubt that the second limb of the revised rule is independent of the first. The High Court seems to have erred in this aspect of the matter."

Further reliance was placed on Deepak Agarwal and Another Vs. State of Uttar Pradesh and Others, (2011) 4 JT 423 : (2011) 4 SCALE 177 : (2011) 6 SCC 725 : (2011) 2 SCC(L&S) 175 : (2011) 2 UJ 1245 : (2011) AIRSCW 5402 : (2011) AIRSCW 2138 and it is apposite to reproduce paras 6 and 33 of the said judgment herein.

"6. In spite of the representation made by the appellants, the 1983 Rules were amended on 17th May, 1999. By the aforesaid amendment, the posts of Technical Officers and Statistical Officers have been excluded from the feeder cadre for promotion to the post of Deputy Excise Commissioner. This amendment came just two days before the DPC was scheduled to meet on 19th May, 1999. As a consequence of the amendment, the DPC did not consider the appellants for promotion. The justification given for the aforesaid amendment is that the State Government had taken a "conscious decision" to exclude the Technical Officers and Statistical Officers as they were not fit for the post of Deputy Excise Commissioner because of their peculiar qualifications, duties, responsibilities and work experience. However, to compensate for loss of promotion, the pay scale of these two posts has been upgraded to the level of Deputy Excise Commissioner.

to 32. ............

It may be that the removal of the two posts from the feeder cadre would lead to some stagnation for the officers working on the two aforesaid posts. In fact, the Government seems to recognize such a situation. It is perhaps for this reason that the posts have been upgraded to the post of Deputy Excise Commissioner. However, mere upgradation of the post may not be sufficient compensation for the officers working on the two posts for loss of opportunity to be promoted on the post of Deputy Excise Commissioner. In such circumstances, the Government may be well advised to have a re-look at the promotion policy to provide some opportunity of further promotion to the officers working on these posts. With these observations, the impugned judgment is affirmed and the appeal is accordingly dismissed with no order as to costs."

The same principles have been laid in case titled Rajni Sharma Vs. State of Himachal Pradesh and Another, (2010) 2 ShimLC 155 , that the experience gained for a considerable length of time is itself a qualification.

The reliance is placed on the judgment reported in case titled B. Manmad Reddy and Others Vs. Chandra Prakash Reddy and Others, AIR 2010 SC 1001 : (2010) 124 FLR 941 : (2010) 2 JT 298 : (2010) 2 SCALE 407 : (2010) 3 SCC 314 : (2010) 1 SCC(L&S) 1169 : (2010) 2 SCR 860 : (2010) 2 SLJ 329 : (2010) 2 UJ 945 . It is apt to reproduce paras 15, 18 and 19 of the said judgment herein.

"15. This Court in Triloki Nath case held that a classification must be truly founded on substantial differences that distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved. Having said so, this Court observed:

Judged from this point of view, it seems to us impossible to accept the respondents'' submission that the classification of Assistant Engineers into degree-holders and diploma-holders rests on any unreal or unreasonable basis. The classification, according to the appellants, was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly co-related to it, for higher educational qualifications are at least presumptive evidence of a higher mental equipment. This is not to suggest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. What is relevant is that the object to be achieved here is not a mere pretence for an indiscriminate imposition of inequalities and the classification cannot be characterized as arbitrary or absurd. That is the farthest that judicial scrutiny can extend." The Court also observed that the classification made on the basis of educational qualifications with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear ion mind the facts and circumstances of the case in order to judge the validity of a classification."

16-17. ........

That leaves us with the question whether any imbalance among those eligible for appointment against class II category 1 posts coming from different sources and categories would itself justify a classification like the one made in Note 6. Our answer is in the negative. There is no gainsaying that classification must rest on a reasonable and intelligible basis and the same must bear a nexus to the object sought to be achieved by the statute. By its very nature classification can and is often fraught with the danger of resulting in artificial inequalities which make it necessary to subject the power to classify to restraints lest the guarantee of equality becomes illusory on account of classifications being fanciful instead of fair, intelligible or reasonable.

We may gainfully extract the note of caution sounded by Krishna Iyer J. in his Lordship''s separate but concurring judgment in Triloki Nath''s case (supra):

"56. .......The dilemma of democracy is as to how to avoid validating the abolition of the difference between the good and the bad in the name of equality and putting to sleep the constitutional command for expanding the areas of equal treatment for the weaker ones with the dope of "special qualifications" measured by expensive and exotic degrees. These are perhaps meta-judicial matters left to the other branches of Government, but the Court must hold the Executive within the leading strings of egalitarian constitutionalism and correct, by judicial review, episodes of subtle and shady classification grossly violative of equal justice. That is the heart of the matter. That is the note that rings through the first three fundamental rights the people have given to themselves."

It is moot question whether the State has made the amendment on the foundation of substantial differences and it is also moot question whether the State has made this amendment and carved out substantial differences and has been able to distinguish persons grouped together from those left out of the group. Whether the State has taken into consideration that the classification made within the class is legally permissible.

Keeping in view the aforesaid discussion, one comes to an inescapable conclusion that the writ petitioner(s) have experience and are under legal and legitimate expectation to get promotion to the post(s) of Block Development Officer read with the fact that there are some persons, who are still manning the post(s) of Block Development Officers, we deem it proper to direct the respondents-State to consider the case of the petitioner(s) for relaxation, including all those who are not in a position to seek reliefs for grant of promotion or for relaxation, so that, they may not meet with discrimination. It is also important factor which weigh with us that there is no time to improve qualification, but at the same time, by the amendment, they cannot be shown door at the whims of the State without any reasonable cause."

In view of the aforesaid judgment, one comes to an inescapable conclusion that the writ petitioner has gained experience and therefore, has not only legitimate expectations but has a right to be considered for promotion to the post of Anganwari Worker.

Accordingly, this writ petition is allowed and the respondents are directed to consider the case of the petitioner for promotion to the post of Anganwari Worker without insisting upon the educational qualification of plus two as introduced vide notification dated 19.6.2010.

Needful be done within a period of eight weeks. The parties are left to bear their costs.