Shivaji Pandey, J.@mdashHeard learned counsel for the petitioner and the State. In this case, petitioner has claimed that he should be given Class-II post with salary with effect from the date Suresh Prasad Singh, respondent no. 5 was given. In the alternative, at least he should be given scale of pay of Class-II employee of Agriculture Department with effect from 30th December, 2009 from which date juniors to the petitioner have been granted the said scale. Petitioner has further claimed that he should be given proper scale of Class-III employee.
2. The basic claim, as it appears from the writ petition, is that he was appointed as Class-III employee in Category-III in the Bihar Agriculture Services and was deprived of the proper scale of Class-III employee and later on he was deprived of the promotion to Class-II post in the Bihar Agriculture Services and in his place, persons from other category were promoted on Class-II post and has claimed that he was deprived of scale of Rs. 2,000-3,800/-. Petitioner has also challenged the stand of the Government that persons having qualification of B.Sc. (Agriculture) can only be promoted is completely without any basis and against the Rules. He has further submitted that there is no prohibition under the Rules to promote the petitioner to the Post of Class-II whereas persons having the same qualification who were working with the petitioner, were promoted to Class-II post. Petitioner has also raised a grievance that though respondent no. 5 Suresh Prasad Singh who was from Category-I was promoted but could not have been so promoted as he could not be allowed to travel to the category of petitioner. As per Service Rules, 50 per cent of Class-II post was to be filled up by way of promotion from Class-III employees. Petitioner has again raised a grievance that the employees haying been junior by 22 years to the petitioner were promoted to Class-II post but petitioner was deprived of such promotion arbitrarily and maliciously.
3. Before going to the merits of the case, it is relevant to mention here that Suresh Prasad Singh, respondent no. 5 has already died and a substitution petition vide I.A. No. 8509 of 2011 has been filed on behalf of wife, daughters and son but there is none to represent the original respondent no. 5. However, as the petitioner has already superannuated from service in 2009 and as such, in view of the development no relief can be granted against him. However, substitution petition vide I.A. No. 8590 of 2011 is allowed and in his place, his heir and successors are substituted.
4. Before discussing the merits of the case, it will be relevant to discuss the anatomy of the Agriculture Department of the Govt. of Bihar. The Department of Agriculture under the State of Bihar comprises different posts in different categories. Prior to independence, the Department had comparatively a very small cadre. When it increased in many fold, posts were divided in Class-I and Class-II posts under the Bihar Agriculture Services. Class-III posts which included higher posts and Research Posts under the Bihar Agriculture Subordinate Services and the ministerial staff or Class-IV staff. Class-I and Class-II and Class-III posts of the Department were divided into nine categories which are as under:--
(a) Category-I Agronomy.
(b) Category-II Agriculture Engineering.
(c) Category-III Chemistry.
(d) Category-IV Botany
(e) E) Category-V Entomology
(f) Category-VI Plant Pathology.
(g) Category-VII Horticulture.
(h) Category-VIII Marketing, Weights & Measure.
(i) Category-IX Statistics.
All these categories were not interchangeable and they were specialized posts which is evident from the preamble of Bihar Agriculture Services Act, 1982 (hereinafter, referred to as "Agriculture Act").
5. Petitioner was appointed in the year 1978 as Junior Research Assistant in the scale of Rs. 496-460/- (sic--296--460?). Thereafter, vide Memo No. 848 dated 18th January, 1979, petitioner was regularized in service with effect from the date of joining as Junior Research Assistant. He was posted at Muzaffarpur as Junior Research Assistant in Soil Testing Laboratory, Muzaffarpur which was a Category-III (Chemistry) post. In the year 1981 the post of Junior Research Assistant merged with the post of Assistant Research Officer. After the acceptance of 4th Pay Revision, the revised scale of pay of Junior Research Assistant became Rs. 850-1,360/-, but the fact remains that the petitioner was given the substituted scale of Rs. 785-1,210/-. When the proper pay was not given, petitioner filed representation on different dates, i.e. 8th March, 1982, 23rd August, 1982 and 26th August, 1986 but all went in vain. On acceptance of 5th Pay Revision Committee Report, pay scale of Class-III employees was substituted from Rs. 850-1,360/- to 1,600-2,780/-. But this scale was not given to the petitioner rather petitioner was given the scale of Rs. 1,400-2,600/-. Petitioner again filed a representation but even then he was not given that benefit.
6. According to the petitioner, Shaukat Chand and Jay Narayan Singh who were belonging to Category-III were given the promotion and the petitioner who was just below Jay Narayan Singh was not given, whereas Suresh Prasad Singh, respondent no. 5 who was in Category-I, was wrongly given promotion. In support of his contention, my attention has been drawn to Annexure-10 and Annexure-10/1 (Seniority list) which shows that the petitioner was just below Jay Narayan Singh. He has also pointed out that qualification of Shaukat Chand and Jay Narayan Singh is the same as that of the petitioner. On perusal of Annexure-10/A it is apparent that qualification of all the three persons, as shown in the list, is same i.e. B.Sc. (Science).
7. Learned counsel for the petitioner further submitted that vide letter no. 1243 dated 29th October, 1996 Shaukat Chand and Jay Narayan Singh were granted pay scale of Rs. 2,000-3,800/- and the petitioner was deprived of the said benefit.
8. Learned counsel for the petitioner further submitted that Agronomy is Category-I whereas Chemistry is Category-III and according to the Rules, the persons belonging to the Category-I cannot travel to Category-III. He has further submitted that there are large number of vacancy available but in utter disregard to the Rules, large number of person belonging to Category-I was promoted to Class-II post, whereas petitioner was deprived of the same. He has further pointed out that the petitioner has already superannuated from service on 31st December, 2009 but junior to the petitioner was promoted vide letter dated 10th February, 2010 with effect from 30th December, 2009.
9. It is further submitted that the posts were vacant from 28th December, 1978 till the date of his superannuation and according to the Rules, 50 per cent of Class-III post were to be filled from Class-III employees by way of promotion and in this way he has submitted that he was discriminated in not giving the pay scale of Rs. 2,000-3,800/- whereas Suresh Prasad Singh, respondent no. 5 was given the said benefit.
10. Learned counsel for the State has disputed the claim of the petitioner and said that the petitioner was not a B.Sc. (Agriculture) and he could not have been given the benefit of promotion to Class-II post. Persons having the qualification of B.Sc. (Agriculture) can only be promoted. He has also relied on Para-7 of the counter affidavit which says that earlier in 1992 employees in Categories-II and III were upgraded in the scale of Rs. 2,000-3,800/- but the Finance Department reviewed the matter and only those persons holding the qualification of B.Sc. (Agriculture) were retained in upgraded scale, Since the petitioner did not have such qualification, he was rightly deprived of the aforesaid scale. He has further stated that the petitioner was given the pay scale to which he was entitled and the claim of petitioner is completely not acceptable. At the same time, he also submitted that if he has a grievance he could have gone to the court of law in 1978 itself. In this view of the submission and nature of dispute raised by parties, it is relevant to examine the provisions of Bihar Agriculture Act which runs as follows:--
Section 3. Appointment, confirmation and promotion in each category.--The appointment, confirmation and promotion in each category shall be made separate and distinct and the posts in the different categories shall not be interchangeable from one category to another.
11. On perusal of Section 3 of the Agriculture Act it shows that the appointment and confirmation of promotion in each category shall be made separate and distinct and the post in different categories shall not be interchangeable from one category to another.
12. Petitioner has also relied on Appendix-H, relevant portion of which reads as follows:--
Clause-2(iv) Research Class II post.--Not more than 50 per cent of the post shall be filled up by promotion.
13. Learned counsel for the petitioner submits that in view of this Act and Regulation, it is apparent that the categories cannot be interchanged. Persons belonging to certain category cannot be allowed to travel to another category and the other thing is that 50 per cent Class-II post is to be filled up by promotion from Class-III posts. There is no material in the counter affidavit to show whether any amendment was made to the Act or not. As per the Act, it is abundantly clear that the persons having been appointed in a particular category cannot be allowed to travel to another category and from the counter affidavit it appears that the persons having B.Sc. (Agriculture) can only be promoted to Class-II post but from Annexure-10A read with Annexure-11 makes it abundantly clear that persons having only general qualification of B.Sc. (Science) were promoted in the scale of 2,000-3,800/- as Shaukat Chand and Jay Narayan Singh were promoted having qualification of B.Sc. The State Counsel failed to show any rule and regulation of the State Government which prohibits an employee of Class-III of Category-III promotion to Class-II post and only an employee having B.Sc. (Agriculture) qualification can only be promoted to Class-II post. In this view of the matter, petitioner could not have been deprived of the promotion on Class-II post. At the same time, it appears from Annexure-21 that Binay Kumar Pandey and onwards were junior to the petitioner which is apparent from Annexure-21 series. As the petitioner has submitted that there was vacancy of Class-II post and juniors by 22 years to the petitioner were promoted but the petitioner has not been given the said promotion. It appears from the facts on record that the authority concerned ought to have also considered the case of the petitioner for promotion as the petitioner like others having the qualification for being considered for promotion and it appears that the action of the authority was arbitrary as the rules and regulations have not been applied to the case of petitioner.
14. Recently the Hon''ble Supreme Court in the case of
15. In this case also it appears that for promotion to Class-II post, there is nothing on the record or in the Rule to show that the person having B.Sc. (Agriculture) can only be promoted to Class-II posts and from the facts it is apparent that the employee of the same category having the same qualification were promoted but the petitioner has been deprived of the same. Authority ought to have applied the rule and regulation in equal term in respect of all employees but in the present case, the rule and regulation applied in case of other persons, have not been equally applied in the case of petitioner. The right of promotion is not a fundamental right but consideration for promotion applying same rule as in case of other similarly situated persons, is fundamental right.
16. In such view of the matter, this matter is remanded back to the authority concerned to consider the case of the petitioner in accordance with law and the observation made as aforesaid. The authority concerned is expected to consider and decide the matter within six months from the date of receipt/production of copy of this order. With the aforesaid observations, this petition is allowed.
