LPASW/145/2011 of RAVINDER KUMAR KAPOOR AND ORS. Vs STATE TH.AGRICULTURE DEPTT.AND ORS. on 15 December 2011

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU:

LPASW/ no. 145/201

Date of Order: 15.12. 2011

Ravinder Kumar Kapoor and OthersVs.

State of J&K and otners

Coram:

Hon’ble Mr. Justice F. M. Ibrahim Kalifulla, Chief Justice.Hon’ble Mr. Justice Virender Singh, Judge Appearing Counsel:

For Appellant(s)Mr. S. K. Shukla, Advocate.|For Respondent (s)Mr. Abhinav Sharma, Advocate.I)Whetner to be reported InPress, Journal/MediaYes\i/|Whether to be reported In,DiQast/JournalYeasPer;lbrahim Kalifulla;CJ

11Tne writ petitioners are the appellants. [he cnallenge Is to.

the order of the learned Single Judge dated 03.06.2011 passedin SWP no. 88/2011.

2 |The State Cabinet in tts decision no. 453. dated30.17.1983 decided to create a cadre of Rehbar-i-Zirat with|strength of 300 on a consolidated salary of Rs. 400/- per month.Pursuant to the said decision, by Government Order no. 72-Agriof 1984 dated 01.02.1984 sanction was accorded by theGovernor for creation of said 300 posts of Rehbar-i-Zirat indifferent Districts in the State of Jammu and Kashmir on a2

consolidated salary of Rs. 400/- per month. The GovernmentOrder stipulated that the expenditure on that account would be.debitable to the plan out lay of the Agriculture Sector. Thenature of job to be performed by Rehbar-i-Zirat was to offertechnical support to the programmes of Intensive agriculturaldevelopment in various parts of the State, in that they were tokeep very close liaison with the Department of Agriculture andHorticulture and the crop programmes formulated at the Statelevel for different parts of the State. They were to fully involve inguiding the farmers with regard to the prescribed packages ofpractice, arrangement of Inputs including arrangement of croploans and other loans required for intensification of agriculturalproduction. The appointment to the cadre was to be made on.the recommendation of Special Divisional/ Section Boards.constituted with Director Agriculture Jammu/Srinagar asChairman and Director Rural Development , Deputy DirectorAgriculture (Central) and Deputy Director Horticulture asmembers. [ne Divisional Board was to Invite applications to bereceived by 15.02.1984 and complete the selection by29.02.1984. The minimum qualification was fixed as B.Sc..Agriculture.

3 |Pursuant to the said Government Order, appointment ofcandidates as Rehbar-i-Zirat was made by Government Order No. 305-Agri of 1984 dated 25.05.1984. They were directed toreport to Director of Agriculture Kashmir/Jammu and they alljoined duties.

4 |Subsequently by Government Order no. 60/7-Agri of 1984dated 18.10.1984, by way of implementation of the NationalAgricultural Extension Project (Trainings and Visits Programme)in Jammu and Kashmir at a total cost of Rs. 1657.42 lakhs over|a period of five years with effect from the current financial year,sanction was also accorded for creation of different posts,including the post called as Village Extension Workers at Circlelevel. As per the said Government Order, 1000 posts of VillageExtension Workers in the pay scale of Rs. 825-1240 werecreated. The qualification was prescribed as B.Sc. Agriculturedegree. In the annexure to the Government Order in which theposts were specified, it was specifically noted that ~ 300 postsby corresponding reduction of the Rehbar-i-Zirat Cadre whichwill be added to this level’. The above prescription was made.whereby out of 1000 Village Extension Worker posts created,300 posts of Rehbar-i-Zirat was to be adjusted leaving only 700°posts to be filled up based on the said Government Order.

5As a sequel to Government Order No. 60/7 dated18.10.1984, Government Order No. 608-Agri of 1984 dated18.10.1984 was also Issued which stated that the Agriculture

graduates appointed as Rehbar-i-Zirat would be thereafterdesignated as Village Extension VVorkers under the NationalAgricultural Extension Project (Trainings and Visits Programme)and placed in the pay scale of Rs. 825-1240 plus usualallowances with immediate effect. Again the expenditure on that.account was continued to be debited to the Account Head 305-Agriculture (Plan). The cadre of Rehbar-i-Zirat (S00 posts)created vide Government Order no. /2-Agri of 1984 dated01.02.1984 came to be reduced, meaning thereby the saidposts cease to exist thereafter.

6. )After the issuance of Government Order no. 60/7 dated18.10.1984 the remaining /O0O Village Extension VWorker Postwere stated to have been filled up by way of regular selectionDrOCess.|

[|Be that as it may, in the Agriculture Wing there was no.rule governing the non-gazetted service. Ine only rule which.was prevailing was the Jammu and Kasnmir Agriculture(Gazetted) Service Recruitment Rules, 1978 notified vide SRO134 of 1978 dated 02.03.1978. It Is also relevant to state that.neither the post of Rehbar-i-Zirat nor the post of VillageExtension Worker was a gazetted post and, therefore, the samewere not governed by the said 1978 Rules. Subsequently theJammuand|KasnmirAgriculture(Gazetted) Service Recruitment Rules, 1988 came to be notified vide SRO 179 of1988 dated 02.06.1988. Both under the 1978 Rules as well as.1988 Rules the post of Agriculture Assistant was included and.as many as 12 posts equivalent to the post of AgricultureAssistant as Class VI posts in 1978 Rules and 22 equivalentposts of Agriculture Assistant as Class VII posts in the 1988Rules. In the 1978 Rules, for the post of Agriculture Assistantand other equivalent posts, the method of appointment was.only by way of direct recruitment and the qualificationprescribed was B.Sc. Agriculture. In the 1988 Rules thequalification was prescribed as B.Sc. Agriculture from arecognized Institute/University. As far as method of recruitmentwas concerned, It stipulated that 50% by direct recruitment,preferably M.Sc. Agriculture and 50% by promotion from VillageExtension Workers possessing B.Sc. Agriculture degree,having minimum of four years experience in that class.

8 |As far as the appellants are concerned, since theycommenced their service for the training project from18.10.1984 in the post of Village Extension Workers, theiraspiration to get promoted to the post of Agriculture Assistantcommenced only after emergence of 1988 Rules.

QO One other factor to be noted which created the scope for,this litigation was the seniority list of the Village Extension Workers, as it stood as on 18.10.1984, published vide.Government Order No. 313-Agri of 2010 dated 27.12.2010. Thenames of the appellants figured in serial nos. 9, 164 and 104respectively in the said list. [he sald list only related to theRenbar-i-Zirat candidates who were later designated as VillageExtension Workers from 18.10.1984. Even amongst those 300persons, 10 came to be eliminated as they left the departmentbefore their designation as Village Extension Workers in theregular scale on and from 18.10.1984. Four others were alsodeleted since after joining as Renhbar-i-Zirat they left before18.10.1984. Therefore, the list was pertaining to only 286.DEFSsOns.

10. The present writ petition came to be filed by the.appellants challenging the above final seniority list dated2/.12.2010 on the ground that the said seniority list wasprepared keeping the date of their induction into service asVillage Extension Workers as from 18.10.1984 where as theirinduction as Rehbar-i-Zirat with effect from 25.05.1984 ought to”have been taken as the first date of entry into service of VillageExtension Workers. The appellants prayed for the followingreliefs:-|

" 1) Writ, order or direction in the nature of Writ of|Certiorari quashing Government Order No. 313-Agri|of 2010 dated 27[th]December, 2010 (Annexure-H)|whereby the final seniority list of Village Extension|

Workers as It stood on 18[tn]October, 1984 nas been|issued by the Respondent No:1;

ii)

Writ, order or direction in the nature of Writ of)Mandamus commanding upon the Respondent No:1to re-draw tne final seniority list of Village Extension|VVorkers as It stood on 2[tn]May, 1984 by taking Into)consideration the services rendered and experience|gained by the petitioners w.e.f. 25[th]May, 1984 when)the petitioners were appointed as Renbar-i-Zirats till|18[tn]October, 1984 when the petitioners weredesignated as Village Extension VVorkers;

lil)

Writ, order or direction in the nature of Writ ofMandamus deciaring the petitioners entitled to count)their service rendered and experience gained w.e.f.|P4[th]May, 1984 to 18[th]October, 1984 as Rehbar-i-Zirat for the purpose of their promotion to the post ofAgriculture Assistants and equivalent in terms of J&K|Agriculture (Gazetted) Service Recruitment Rules,|1988:

Iv)

Writ, order or direction in the nature of Writ ofProhibition restraining the respondents from holding|the DPC/PSC for the purposes of making regular|promotions from the posts of Village Extension|Workers to the posts of Agriculture Assistants and|equivalent till the final seniority list of Village|Extension VVorkers as It stood on 2[tn]May, 1984 Isre-drawn by taking into consideration the services|rendered and experience gained by the petitioners|w.ef. 25[tn]May, 1984 to 18[tn]October, 1984 as|aforesaid.”

11. )The learned Single Judge, after taking the view that the appellants ana other 2383 persons, whnose_ seniority wdetermined in the seniority list dated 27.12.2010 were inductedas Village Extension Workers from only 18.10.1984 and that.

their earlier posts as Renbar-i-Zirat cannot be linked to theirservice as Village Extension Workers and, therefore, none ofthe relief prayed for can be granted, dismissed the writ petition.Aggrieved by the same the appellants have come forward withthis appeal.

1) |We heard Mr. S. K. Shukla for the appellants. We also.perused the order of the learned Single Judge and othermaterial papers.

13. Mr. Shukla reiterated his submissions as were raised by.the appellants before the learned Single Judge. Much stresswas laid by the learned counsel on the Cabinet decision dated30.12.1983 when it was decided to create a cadre of Rehbar-!-Zirat. While referring to the said decision no. 453 dated30.12.1983 the learned counsel pointed out that in that meetingthe Cabinet took a decision to prescribe the minimum.qualification as B.Sc. Agriculture and that in future allrecruitments to the level of Agriculture Assistants/ HorticultureAssistants and all similar other posts would be made from out.of cadre of Rehbar-i-Zirat by giving due attention to theirperformance in the field of Agriculture production. The Cabinetis also stated to have taken out a decision to bring outnecessary amendment in the recruitment Rules for appointmentto the post of Agriculture Assistant and similar other posts in the

Agriculture and Horticulture departments. It was also decided to.leave the process of recruitment of Rehbar-i-Zirat to be made.by the Agriculture department. Ine learned counsel, byreferring to the sanction order of the Government inGovernment Order No. /2-Agri of 1984 dated 01.02.1984 andthe subsequent appointment of the candidates as Renhbar-iZirat in Government Order no. 305-Agri of 1984 dated25.05.1984, contended|that.Government.Ordercated01.02.1984 specifically stated that Rehbar-i-Zirat will offertechnical support to the programmes of Intensive agriculturaldevelopments in various parts of the State, that they will keepclose liaison with the department of Agriculture and Horticultureand the crop programmes formulated at the State level whichwill be entrusted to the Rehbar-i-Zirat as aé_e primaresponsibility and that they would be fully involved with regardto the prescribed packages of practice, arrangement of inputsincluding arrangement of crop loans and other loans requiredfor intensification of agricultural production. The learnedcounsel therefore contended that when the initial appointment.qs Rehbar-i-Zirat came to be made in the above stated)background on 25.05.1984, the adjustment of 300 posts ofRehbar-i-Zirat out of 1000 posts of Village Extension Workerscreated by Government Order No. 607 dated 18.10.1984 and such adjustment was also given effect to by Government OrderNo.608 dated 18.10.1984 the appellants were fully justified intheir claim for counting their service in the post of VillageExtension Worker as from 25.05.1984 when they came to beInducted as Renbar-i-Zirat ana the seniority list snould have.therefore been drawn by specifying their entry as VillageExtension Workers as 25.05.1984.

14|Having heard the learned counsel for the appellants and.having bestowed our serious consideration to the final senioritylist drawn in Government Order no. 313 dated 27.12.2010, we.are not inclined to interfere with the order of the learned SingleJudge.

15_As pointed out earlier, the posts of Agriculture Assistant,|Agriculture Extension Officer and other equivalent posts wereall initially governed by the Jammu and Kashmir Agriculture(Gazetted) Service Recruitment Rules, 1978. Subsequently|vide SRO 179 of 1988 dated 02.06.1988 the Jammu andsKashmir Agriculture (Gazetted) Service Recruitment Rules,1988 were notified. As far aS we are concerned, the differencewe note in the 1978 Rules and 1988 Rules, is that while in 1978.Rules the post of Agriculture Assistant and other equivalentposts fall in Class VI, in the 1988 Rules the said post fall under.Class VII. In the 1978 Rules the method of recruitment was by way of only one method, namely, direct recruitment, whereasunder the 1988 Rules, 50% recruitment was to be made bydirect recruitment by giving preference to holders of M. Sc.Agriculture degree and the balance 50% by way of promotionfrom Village Extension Workers possessing B. Sc. Agriculturedegree with a minimum of four years experience in that class.The basic qualification prescribed in both the Rules was B. Sc.Agriculture from recognized institute/University.

16_.Mr. Shukla, learned counsel appearing for the appellants, in his submissions, by making special reference to theprovisions contained in Schedule Il to the 1988 Rules as.against Class VII Posts, where under the caption “the methodof recruitment it is stated, “50% by promotion from VillageExtension Workers possessing B.Sc. Agriculture degree,having minimum of 4 years experience in that class submittedthat the set of expression, “in that class would take within Its.fold not only the experience gained as VEWS Le. VillageExtension Workers but also in the post of Rehbar-i-Zirat whichgot amalgamated in the post of Village Extension Workers asfrom 18.10.1984. According to the learned counsel, sinceRehbar-i-Zirat and Village Extension Workers were equatedwhen Government Order No. 607 and 608 came to be Issued|by adjusting 300 posts of Rehbar-i-Zirat in the total number of

1000 posts of Village Extension Workers created underGovernment Order No. 607 of 1984 dated 18.10.1984, theappellants were justified in claiming counting of their service as"Rehbar-i-Zirat for that of Village Extension Workers. Thelearned counsel further contended that the seniority list, In notcounting their services from 25.05.1984 when appellants wereinitially inducted as Rehbar-i-Zirat, is liable to be set aside andconsequential relief should be granted.

17Though such a contention of the appellants appears to be.more logical in the first blush, we do not find any support forsuch a submission either under Rules or tn any of the validlyissued proceedings of the State Government to countenancesuch a claim. When we examine the recruitment Rules of 1988,the provisions relating to method of recruitment for the post ofAgriculture Assistant by way of induction from the non-gazettedpost, namely, Village Extension Worker, it is specificallyprovided that the Village Extension Workers with four yearsexperience alone would be eligible for being considered to aClass VII posts, namely, Agriculture Assistant and otherequivalent posts. Applying the Maxim ~expressum facit cessaretacitum~ What is expressed makes what is implied to cease.Reference can be had to the decision of the Hon ble SupremeCourt reported in(1985) 3 SCC 398Union of [India and another vs. lTulsiram Pate, where in paragraph no. 7/0 the Honblesupreme Court has applied the Maxim and its principle as.under:-|

“The Maxim ~exopressum_ facit cessare ftac(‘when there is express mention of certain things, then anything not mentioned is excluded) applies to the)case. As pointed out by this Court InB. Shankara RaoBadami v. State of Mysore,this well KNOWN maxim Is 2 |principle of logic and common sense and not merely a.technical rule of construction’.

18. _When the above said specific Rule relating to method ofrecruitment is read, the last set of expression “4 yearsexperience in tnat class nas got to be necessarily read in.conjunction with the first set of expression, ~ 50% by promotionfrom VEWs:. Therefore, the last set of expressions cannot be.read in isolation to state that the expression “in that class” willalso include any other persons who worked in any other postsother than Village Extension Worker. In other words, readingthe Rule as a whole the preceding set of expressions where thepost of VEWs has been given a specific mention read inconjunction with the last set of expressions “in that class’, canonly mean the experience gained by a person in the post ofVEW for a period of 4 years and it can never be stretched to state tnat all other comparable posts should also be Included onpar with the post of VEWs. On that basis we hold that wnateverexperience gained in the post of Rehbar-i-Zirat cannot becounted for calculating the required period of four yearsexperience as VEWS.

19_.As stated by us earlier, since the Rule does not provide.scope for such an extended meaning to be attributed to the saidRule and also there being no otner statutory provisioncontained in the1988 Rules or for that matter, not even agovernment direction or any otner supporting statutorydocument to read the Rule in the way In whicn the appellants|want to read, the contention of the appellants cannot be.countenanced.

20. )The next contention of the appellants is that at the time.when the posts of Rehbar-i-Zirat were created, based on the.decision of the Cabinet on 30.12.1983, the Cabinet also took a.decision that necessary amendment to the Rule snould be.incorporated for recruitment to the post of Agriculture Assistant,Horticulture Assistant and similar other posts from out of thecadre of Rehbar-i-Zirat and, therefore, the present 1988 Rules,providing for recruitment from out of Village Extension Workerswas in furtherance to the said decision and consequently theexperience gained in the post of Rehbar-i-Zirat should also be

counted as experience gained as Village Extension VVorker.The said contention cannot be accepted for the simple reason.that though a decision might have been taken by the Cabinet inIts meeting dated 30.12.1933 to the extent It was said to have.been made, when the amended Rules of 1988 came to be.made providing for 50% recruitment to the Class VII posts ofAgriculture Assistants etc., there was no specific referencemade to the post of Renbar-i-Zirat and such 50% recruitment.was restricted to the persons in the post of Village ExtensionWorkers with four years experience. Therefore, what was notSpecifically provided in the Rules cannot be made conjecturapietatis ( A presumption or conclusion arising from natural duty:a conclusion or conjecture that something was done orintended to be done, on account of a natural duty to do it).1The other contention of the appellants was that when the.posts of Village Extension Workers were created, since the postof Rehbar-i-Zirat in every respect was equivalent to the post ofVillage Extension Worker, 300 posts of Rehbar-i-Zirat whichalready existed, were adjusted in the 1000 posts created andthe said action of the government should be held in favour ofthe appellants by holding that their initial appointment asRehbar-i-Zirat should be counted as service as that of VillageExtension VVorkers.

22. Here again the formidable impediment in accepting the saidargument was that Village Extension VVorker as a post wascreated for the first time only by Government Order No. 60/7Agri of 1984 dated 18.10.1984. Mere adjustment of person insome other post, without any specific provision to the effect thatsuch otner post, namely, Renbar-!-Zirat, snould be construed asVillage Extension Worker and such treatment should be notedfor all practical purposes in their future service, it is not for theCourt to expand such a provision in the Government Order No.60/7-Agri of 1984 dated 18.10.1984 or in the annexure to thesaid Government order. When we examine Government OrderNo. 608-Agri of 1984 dated 18.10.1984, it merely states that theAgriculturegraduatesappointed|as|Renbar-|I-ZIratare|designated as Village Extension Workers under the NationalAgricultural Extension Project (Trainings & Visits Programme)and for the first time they are placed in the pay scale of 825-1240 along with usual allowances with immediate effect. It Isalso relevant to note that for the first time after the said.Government Order dated 18.10.1984 and after designation ofappellants as Village Extension Workers, they were put on ascale of pay, since prior to the said date they were only gettingan adhoc payment of Rs. 400/- per month. By the saidGovernment Order dated 18.10.1984 the post of Rehbar-i-Zirat also came to be extinguished. Therefore, the said contention ofthe learned counsel for the appellants also does not meritacceptance.

23. Having regard to our above conclusions, aS we do not|find any merit in any of the contentions raised on behalf of theappellants, there is no scope to entertain this appeal in order to”interfere with the order of the learned Single Judge. The appealtherefore fails and same Is dismissed..

DANo costs.

(Virender Singh)(F. M. Ibrahim Kalifulla)Judge Chief Justice JAMMU: |

15.12.2011.Anil Raina, Secy.|