Narain Sharma v. State & Ors.

October 15, 2008. PRESENT HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri A.K. Bhargava for the petitioner. Shri M.S. Raghav, Additional Advocate General for the State. BY THE COURT :- **** These two writ petitions seek to challenge the notification dated 1/4/1991 issued by the Department of Personnel and Administrative Reforms, Government of Rajasthan amending thereby Rajasthan Agriculture Subordinate Service Rules, 1978 (for short, "Rules of 1978"). By this amendment, channel of promotion to the post of Compositor Grade-I was changed, feeder cadre of which, originally consisted of (i) Offset Press Operator, (ii) Press Operator and (iii) Project Operator (Press) was amended and the SBCWP No.1026/93. SBCWP No.2309/93. 2 post of Press Operator (Press) was deleted. Earlier, the experience prescribed for promotion was 3 years on any of the aforesaid three posts but now after amendment, this has been raised to 5 years. Moreover, earlier, minimum composing speed required for promotion was 4000 ems per day which requirement has since been deleted. 2)

Shri A.K. Bhargava, learned counsel for the petitioners has argued that petitioners are working on the post of Compositor-cum-Printer/Assistant Press Operator and in fact they are the once who were actually engaged in the work of composition. In the rules however, there was anomaly that employees in none of the feeder cadres actually had the composing experience. This anomaly was pointed out by the Agriculture Extension Officer of the respondents in his letter dated 23/1/1985 addressed to the Director Agriculture Department Rajasthan in which it was stated that none of the incumbents in the three cadres referred to above possess the experience of 3 years or of 4000 ems speed per day. It was suggested that Compositor-cum-Printer and Assistant Press Operator who possess qualification should be considered promotion accordingly recommended the case of the petitioners for promotion but instead of doing, the respondents have illegally amended the rules so as to delete requirement of SBCWP No.1026/93.

SBCWP No.2309/93. 3 4000 ems composition speed by enhancing the experience from 3 years to 5 years. It was argued that the post of Compositor Grade-I is also available in the Government Press where all the major printing work of the government is carried out. In the Rajasthan Government Presses Subordinate Service Rules, 1973 (for short, "Rules of 1973"), source of recruitment for the post of Compositor Grade-I is 100% by promotion and feeder cadre therefor is Compositor Grade-II with experience of 3 years or if the incumbent is only 8th pass, experience is 8 years is required or otherwise, only experience of 15 years is required. The channel of promotion provided in the Rules of 1978 has a valid explanation and justification in the sense that those working on the posts of Press Operator and Project Operator (Press) do not actually discharge the work of composition and, therefore, only they can be treated as eligible for promotion on the post of Compositor Grade-I. The action of the respondents is, therefore, wholly arbitrary and discriminatory inasmuch as, identical posts in two departments are being filled in by promotion from different cadres and Compositor-cum- Printer and Assistant Press Operator of the respondent-department, who are otherwise equally situated, are being treated differently.

This amendment thus results in hostile discrimination as SBCWP No.1026/93. SBCWP No.2309/93. 4 against the petitioners. Learned counsel cited the example of one Shri Gyarsilal, Project Operator and argued that though he was in the feeder cadre but he did not possess the experience of the said post and yet he was promoted by the respondents vide order dated 11/3/1977 on the basis of his experience of 8 years as Compositor Grade-II, the post which was held by the petitioners. Learned counsel also cited the letter dated 19/5/1989 addressed by Deputy Director Agriculture (Administration) Assistant Secretary Agriculture in which it was contended that the pay scale given to the post of Compositor-cum- Printer Grade-II should be brought at par with those holding analogous post in the Government Press. Therefore, case of the petitioners should be considered for promotion. Learned counsel in support of his argument placed reliance upon the judgment of Supreme Court in Jaghnath Vs.

Union of India and another : AIR 1992 SC 126. 3) Shri M.S. Raghav, learned Additional Advocate General opposed the writ petitions and argued that Compositor Grade-I is not merely assigned composition work only but he also has to do the work of page setting and making corrections. Work of Compositor Grade-I in the answering-respondent department and in the Government Press is not identical because different technologies and set up SBCWP No.1026/93. SBCWP No.2309/93. 5 are used in two departments. They are subject to different set of rules with different qualifications. There is no cause or justification for the petitioners to challenge the amendment made in the year 1991 vide notification dated 1/2/1991. The Rules of 1978 remained applicable to them even before and after the aforesaid amendment. Writ petitions have thus been filed with enormous delay of 15 years after the promulgation of the rules whereas those rules were all along acted upon for the purpose of promotion on the post of Compositor Grade-I. Challenge to the validity of the rules is wholly misconceived.

4) I have given my anxious considerations to the rival submissions of the parties and perused the material on record. 5) Contention of the petitioners that the provisions of the Rules of 1973 be relied on for the purpose of comparison between the post of Compositor Grade-I of the Government Press with the post having the same nomenclature of the respondent-department and the argument on that basis that the rules be declared ultravires and unconstitutional, cannot be accepted because inspite of the resemblance in the nomenclature/designation of the post, the scheme of the rules in both the departments are entirely different. Source of recruitment for the post of SBCWP No.1026/93. SBCWP No.2309/93. 6 Compositor Grade-I in the Government Press is 100% by promotion with the requirerment of Secondary school certificate with 7 years' experience or merely 10 years' experience on the feeder post of Compositor Grade-II. Scheme of the Rules of 1978 in this respect is materially different where the sourse of recruitment for Compositor Grade-I was originally 100% by promotion.

Originally, feeder cadre for promotion to the post of Compisitor Grade-I was (i) Offset Press Operator, (ii) Press Operator and (iii) Project Operator (Press) but by the impugned amendment, Project Operator (Press) was deleted from the feeder cadre and there thus remained only two caders from which promotion could be made. Required experience for promotion which was earlier 3 years was raised to 5 years and the requirement of minimum composing experience of 4000 ems speed was done away with. Petitioners are holding the post of Compositor- cum-Printer and Assistant Press Operator for which post, method of recruitment is 50% by promotion and 50% by direct recruitment. Holders of this post are eligible for promotion to the posts of Offset Press Operator and Project Operator (Press), source of recruitment for which is again 100% by promotion. Moreover, the incumbent who holds only the post of Compositor-cum-Printer and Assistant Press Operator are eligible for promotion on the post of Offset SBCWP No.1026/93.

SBCWP No.2309/93. 7 Press Operator, source of recruitment of which is also 100% by promotion. There can be thus no comparison between the two in so far as the conditions of recruitment and promotion in the respondent-department is concerned. 6) Judgment of the Supreme Court on which reliance is placed by the learned counsel for the petitioners merely held that classification of Compositors of Government of India Press into Grade I (Highly skilled) and Grade II (Skilled) based on experience arising out of length of service is not bad because experience by itself is merit and can be a valid basis for classification. This judgment does not in any manner help the petitioners. 7) Argument somewhat similar to the one which is raised in the present case, albeit in the context of plea for equal pay for equal work, was raised before the Supreme Court in State of U.P. Vs. J.P. Chaurasaia : AIR 1989 SC 19, wherein, it was held by their lordships that whether two posts are equal or could carry equal pay scale should be left to be decided by the government on the basis of expert opinion of the Pay Commission and courts should not normally interfere with such decision.

In Umesh Chandra Gupta & Ors. Vs. Oil and Natural Gas Commission & Ors. :AIR 1989 SC 29 also their lordships have held that courts should not interfere SBCWP No.1026/93. SBCWP No.2309/93. 8 with the qualification of posts in two different categories with different pay scales which questions should be left to be determined by the management. 8) Law is settled that it is normally for the employer/government to decide as to what avenue of promotion should be provided to which category of employees and what should be prescribed as requisite qualification or experience for such promotion. This Court has always been loath in making interference with such policy decisions of the government which essentially lies in the domain of its rule making authority. The rules so framed cannot be interfered with unless they are shown to be ex-facie arbitrary, discriminatory and unconstitutional. Moreover, rules in the present case were originally promulgated way back in the year 1978 and were acted upon for the intervening period till impugned amendment was introduced vide notification dated 1/4/1991. But this amendment did not in any manner affect the petitioners and what they are questioning in these writ petitions very much existed right from the date of inception of the rules in 1978. Yet, writ petition challenging the rules was filed belatedly in the year

1993. 9) Validity of the rules of the respondent- department, even otherwise, cannot be examined on the analogy of similarity in nomenclature or designation SBCWP No.1026/93. SBCWP No.2309/93. 9 of the post in this department and the Government Press. Argument of discrimination can be made in between two equals and not unequals and for that matter, the incumbents claiming promotion on the post of Compositor Grade-I in Government Press form separate and distinct class than the petitioners and those incumbents who are eligible for promotion on the post of Compositor Grade-II in the respondent- department. In view of the aforesaid discussion, I do not find any merit in these writ petitions, which are accordingly dismissed. (MOHAMMAD RAFIQ), J.