Sunita Agarwal, J
1. The challenge in the present petition is to the provisions contained in the Rule 2(i) of the Gujarat Panchayat Services (Class-III), Departmental
Examination (Second Amendment) Rules, 2023 (in short as ‘the Rules’ 2023’), whereby a proviso has been inserted in sub-rule (1) of Rule
3 of the Gujarat Panchayat Services (Class-III), Departmental Examination Rules, 2022 (in short as ‘the Departmental Examination Rules’
2022) as under:-
“2. In the Gujarat Panchayat Services (Class-III), Departmental Examination Rules, 2022, (hereinafter referred to as “the said
rulesâ€), in rule-3,
(i) After sub-rule(1), the following proviso shall be inserted, namely:-
“Provided that the person who was eligible in all respect on the 1st September, 2022 for being promoted to the post mentioned in Part-II
Appendix-A shall be exempted from passing the examination.â€
2. The original Rules 3(1) and 4 of the Departmental Examination Rules’ 2022 is relevant to be extracted hereinunder:-
“3. Requirement to pass the examination
3(1) The person appointed to the post specified in Part-I of Appendix A shall be required to pass the Lower Level Departmental Examination
to be eligible for promotion tot he respective post specified in Part-II of Appendix A.â€
4. Eligibility to appear in the examination-
(1) No person shall be eligible to appear in the examination unless he has completed two years’ of continuous service after his
appointment on the post of Part-I of Appendix A and Appendix B.
(2) No person shall be eligible to appear in the examination unless he has passed the post-training examination to existing post or he has
been exempted from passing post-training examination by the Competent authority, if any.
3. The grievance raised by the petitioners is about the exemption granted to the persons eligible in all respects as on 01.09.2022 from passing the
departmental examination, for being promoted to the post of Female Health Supervisor Class-III, from Female Health Workers Class-III. While
challenging the validity of the amended Rules inserting the exemption clause, the challenge has also been raised to the promotion of five incumbents
(respondents No.3 to 7 herein) to the post of Female Health Supervisor (Class-III) vide order dated 29.06.2024, by giving benefit of the aforesaid
exemption clause.
4. The submission of the learned counsel for the petitioners is that vide the Departmental Examination Rules’ 2022, notified on 23.08.2022, it
became necessary for every incumbent working on the post of Female Health Worker Class-III to pass the Lower level departmental examination to
be eligible for promotion to the post of Female Health Supervisor Class-III. Once the requirement of passing the departmental examination has been
brought into the rules within the eligibility criteria for the purposes of promotion, there was no justification to exclude those who were otherwise eligible
as on 01.09.2022, from the requirement of passing the departmental examination.
5. The contention is that as per the eligibility criteria, an incumbent working on the post of Female Health Worker Class-III is eligible to appear in the
departmental examination, as per Rule 3 of the Departmental Examination Rules’ 2022, on completion of two years of continuous service after her
appointment on the said post and completion of six months training and further passing of the post-training examination. The eligibility criteria, thus, for
each incumbent working on the post of Female Health Worker Class-III is universal that (i) completion two years of continuous service after
appointment on the said post; (ii) having passed, post-training examination to the existing post after completion of six months training.
6. However, the requirement of passing of Lower level departmental examination introduced with the Notification dated 23.08.2022 is in addition to
the above noted eligibility criterias for promotion to the post of Female Health Supervisor Class-III. The submission is that all the petitioners herein
possess eligibility criteria of having two years of continuous service and passing of the post-training examination on completion of six months training.
However, with the Rules’ 2023 brought into force by the notification dated 11.12.2023, with the insertion of the proviso to sub-rule(1) of Rule 3 of
the Departmental Examination Rules’ 2022, a new class of candidates eligible for promotion had been created who have been exempted from the
requirement of undertaking Lower level departmental examination, which has resulted in promotion of respondents No.3 to 7 who were juniors to the
petitioners.
7. It was vehemently argued by the learned counsel for the petitioner that the retrospective operation of the exemption clause from undertaking Lower
level departmental examination by providing a cut- off date, i.e. on 01.09.2022 by Rules’ 2023 notified on 11.12.2023, has resulted in creation of a
class within a class. This classification of those who were otherwise eligible on 01.09.2022 for exemption from departmental examination by giving
retrospective effect to the exemption clause is violative of Article 14 of the Constitution of India. There is no justification for the cut-off date which is
01.09.2022 for grant of exemption from the requirement of passing the Lower level departmental examination necessitated by the Departmental
Examination Rules’ 2022. It is further submitted that no departmental examination was conducted between 01.09.2022 uptil 11.12.2022, when the
exemption proviso was inserted in sub-rule (1) of Rule 3.
8. Taking note of the above, suffice it to record that prior to the notification dated 23.08.2022 notifying the Departmental Examination Rules’ 2022,
the promotion to the post of Female Health Supervisor (Class III) from feeder cadre of Female Health Worker (Class III) was being conducted under
the Female Health Supervisor (Class-III) (Panchayat Service)Recruitment Rules), 1998) (in short as “the Rules’ 1998), notified on 19.11.1998
by the State in the exercise of powers conferred by Section 227 read with Section 274 of the Gujarat Panchayats Act, 1993. Rules 1,2, 3 and of the
Rules’ 1998 (at page No.’95’ of the paper book) are relevant to be extracted herein:-
“1. These rules may be called the Female Health Supervisor (Class III), (Panchayat Service) Recruitment Rules, 1998.
2. Appointment to the post of Female Health Supervisor (Class III), (Panchayat Service) shall be made by promotion of a person of proved
merit and efficiency from amongst the persons who have worked as Female Health Worker, (Class III), (Panchayat Service) for not less than
five years and who have passed the prescribed departmental examination.
3. A candidate appointed by promotion shall have to undergo such training for such period and pass the post-training examination and an
examination in Hindi or Gujarati or both as the case may be prescibed by the Government.â€
9. From a perusal of the said rules indicate that the appointment to the post of Female Health Supervisor (Class III), Panchayat Service) contemplated
under Rules’ 1998 by promotion from amongst the incumbents who have worked as the Female Health Worker Class-III (Panchayat Service),
having worked not less than five years and who have passed the prescribed departmental examination. Rules’ 1998 further requires the candidate
appointed by promotion to undergo training for such period and passing the post-training examination as also the examination in Hindi or Gujarati or
both, as may be prescribed by the Government of Gujarat.
10. It was placed before us that as no rules for conducting departmental examination was framed, Female Health Workers Class-III were being
promoted to the post of Female Health Supervisor (Class-III) merely on completion of requisite number of years of service along with passing of post-
training examination. There is no doubt about the said factual position.
11. It is, thus, evident that the requirement to pass the lower level departmental examination to be eligible for promotion to the Female Health
Supervisor (Class-III), (Panchayat Service) has been necessitated with the enforcement of the Departmental Examination Rules’ 2022, which
came into effect on 01.09.2022. For undertaking departmental examination, under the Departmental Examination Rules’ 2022, it is necessary that
the incumbent must possess the eligibility qualification of two years of service and passing of the post-training examination as per Rule 4 of the the
Departmental Examination Rules’ 2022.
12. The result is that those who possess the eligibility qualification as per the Old Rules’ 1998 as on 01.09.2022, on the date of implementation of
the said Rules’ 2022 have been exempted from passing the departmental examination inserted by Rules 3(1) of the the Departmental Examination
Rules’ 2022, inasmuch as, there was no requirement of passing of departmental examination prior to 01.09.2022.
13. The respondents No.3 to 7 herein (five in number), admittedly do possess the eligibility qualification as per Rule 4 and with the exemption granted
by the proviso to sub-rule (1) inserted by Rules’ 2023, with effect from 11.12.2023, they were not required to pass the departmental examination
as per Rule 3(1) of the the Departmental Examination Rules’ 2022.
14. We may also note that the petitioners herein began their six months training from 01.06.2022 and have acquired the eligibility qualification of
passing the post-training examination only on 30.11.2022. It is, thus, evident that the petitioners were not qualified for promotion under the Old
Rules’ 1998 prior to 30.11.2022, or on the date of implementation of the Departmental Examination Rules’ 2022, with effect from 01.09.2022.
It is clear that the petitioners were not qualified for promotion prior to implementation of the Departmental Examination Rules’ 2022, whereby the
requirement of passing of Lower level departmental examination has been necessitated by Rule 3(1) for promotion to the post of Female Health
Supervisor Class-III.
15. The petitioners and the respondents no.3 to 7, thus, belong to two different classes, the petitioner being belonging to the class; which did not
possess the requisite eligibility qualification as on 01.09.2022 and the respondents No.3 to 7 are those who were otherwise eligible for promotion under
the old Rules’ 1998, in operation on or before 01.09.2022. The first argument of the learned counsel for the petitioner that the Rules’ 2023
with the insertion of the proviso to sub-rule(1) of Rule 3 (exemption clause) of the Departmental Examination Rules’ 2022 has created a class
within a class and is hit by Article 14 of the Constitution, thus, is liable to be turned down.
16. As regards the justification about the cut-off date i.e. 01.09.2022, it is evident that all those who were otherwise eligible for promotion under the
Old Rules’ 1998 to the post of Female Health Worker Class-III, having possessed the requisite qualification and passing the post-training
examination on completion of six months training, have been given the exemption from the requirement of passing the Lower level departmental
examination brought into force with the Departmental Examination Rules’ 2022, notified on 23.08.2022 with effect from 01.09.2022.
17. It is evident that the proviso to sub-rule (1) of Rule 3 of the Departmental Examination Rules’ 2022 by the Second Amendment Rules, 2023
was inserted with the object that the Rule 3(1) of the Departmental Examination Rules’ 2022 should not operate to the prejudice of persons who
having regard to the qualifications prescribed in the Rules’ 1998 possessed the eligibility qualification for promotion. Exemption of those who
possessed eligibility qualification under the Old Rules’ 1998 is a rationale for bringing amendments by Rules’2023. The provision made for
granting exemption to such candidates, who otherwise fulfilled eligibility criteria as per the old Rules’ 1998 with the cut off date 01.09.2022 for
implementation of the requirement of passing the Lower level departmental examination with effect from the said date, for promotion to the post of
Female Health Supervisor Class-III, thus, cannot be said to have been brought without any rationale much less reasonable one.
18. The incumbents who possessed eligibility criteria of requisite number of years of service and passing of the post-training examination on successful
completion of six months training prior to 01.09.2022 constitute a distinct class which has rightly been treated separately insofar as the requirement of
passing the departmental examination inserted under the Rules’ 2022 is concerned. Such a classification of the candidates for the purpose of
applicability of the requirement of clearing the departmental examination has a rational basis which has a reasonable nexus with the object sought to
be achieved by the Departmental Examination Rules’ 2022, amended by Rules’ 2023.
19. The exemption granted by the proviso to sub-rule (1) of Rule 3 inserted by Rules’ 2023 from the requirement of passing the departmental
examination introduced by Rules’ 2022 brought into force with effect from 01.09.2022, has a rationale to the object that the Rules’ 2022 may
not cause prejudice to those who were otherwise eligible under the old Rules’ 1998, at the time of enforcement of the Rules’ 2022.
20. We are, therefore, unable to hold that the exemption granted by the Rules’ 2023 by the notification dated 11.12.2023 is violative of the right to
equality guaranteed under Article 14 of the Constitution of India.
21. Even otherwise, it is settled law that the choice of a date as a basis for qualification cannot always be dubbed as arbitrary even if no particular
reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. Undisputedly, those who fall within the
purview thereof would form a separate class. Such a classification having a reasonable nexus with the object would neither fall within the category of
creating class a within a class or an artificial classification so as to offend Article 14 of the Constitution of India.
22. So far as the law pertaining to fixation of a cut-off date is concerned, we may note paragraph No.’33’ of the decision of the Apex Court
in the case of Ramrao and others vs. All India Backward Class Bank Employees Welfare Association and others, (2004) 2 SCC 76, which provides
guidelines in the matter of challenge to the cut-off date being ultra vires Article 14 of the Constitution and reads as under:-
“33. Whenever such a cut-off date is fixed, a question may arise as to why a person would suffer only because he comes within the
wrong side of the cut-off date, but, the fact that some persons or a section of society would face hardship, by itself cannot be ground for
holding that the cut-off date so fixed is ultra vires Article 14 of the Constitution.â€
23. The above view taken by us is also supported by the decision of the Apex Court in University Grants Commission vs. Sadhana Chaudhary and
others, (1996) 10 SCC 536, relied by the learned Advocate General.
24. The judgement in All Manipur Pensioners Association by its Secretary vs. State of Manipur and others, (2020)14 SCC 625 relied by the learned
counsel for the petitioners stands on a different footing, inasmuch as, there was a dispute with respect to the grant of revised pension to the retired
employees, whereby fixing cut-off date, two classes were created viz. one retired pre-1996 and who retired post-1996. In the said facts of the case,
the Apex Court has held that all the beneficiaries form one class who were entitled to pension as per the pension rules, and such a classification has
no nexus with the object and purpose of grant of benefit of revised pension. No benefit, thus, can be derived from the said decision.
25. Thus, all the arguments made by the learned counsel for the petitioners to challenge the validity of the Rules’ 2023 are hereby turned down.
The challenge to the order dated 29.06.2024 for promotion of private respondent Nos.3 to 7 to the post of Female Health Supervisor (Class-II)
(Panchayat Service) in terms of Rules’ 2023, therefore, cannot be sustained.
26. In the result, the writ petition stands dismissed. No order as to costs.