V. M. Sahai and Sabhajeet Yadav, JJ. - (1.) BY this petition the petitioner has challenged the validity of proviso to Rule 5 of the U. P. Land Development and Water Resources Department Group 'A' Service Rules, 2003 (hereinafter referred to as the 2003 Rules) as amended by Notification dated 21.11.2005 contained in Annexure 4-A to the writ petition and sought relief to d?clare the aforesaid provisions as null and void, being ultra-vires the provisions of equality clause of the constitution. Further relief of mandamus was sought for commanding the respondent to finalise all promotions from Group 'B' to Group 'A' service as also for promotions in Group 'A' itself ignoring the proviso to Rule 5 of 2003 Rules as amended by Notification dated 21.11.2005.
(2.) THE relief sought in the writ petition rests on the allegations that the petitioner was initially appointed as Overseer in Sharda Sahayak Command Project by order dated 17.2.1979 issued by Deputy Director of Agriculture Soil Conservation Sharda Sahayak Command Project Varanasi, in pursuance thereto he joined the post on 19.12.1979 and since then he is in continuous service. THE post of Overseer has been subsequently re-designated as post of Junior Engineer, thereafter, the petitioner was promoted on the post of Soil Conservation Officer vide order dated 11.8.1994 passed by State Government w.e.f. 30.3.1988 i.e. the date from which the person immediately junior to the petitioner were promoted on the post. Subsequently on 23.12.2004 the petitioner's services were regularised on the post of Soil Conservation Officer in accordance with the provisions of U. P. Regularisation of ad hoc promotion (On post outside the purview of Public Service Commission) Rules, 1988 as amended on 20.12.2001 by the (Ist Amendment) Rules 2001.THE aforesaid regularisation was effected from 30.3.1988. It is stated that recruitment to the post of soil conservation Officer, is governed by the rule known as THE Command Area Project - Bhoomi Sanrakshan Adhikari and Technical Officer Service Rules 1993 (Annexure 3 to the writ petition) (herein after referred to as 1993 Rules). THE status of service of the members of Command Area Project - Bhoomi Sanrakshan Adhikari and Technical Officer Service is of holder of a group 'B' post, which comprises the post of Soil Conservation Officer and Technical Officer. Under Rule 5 of 1993 Rules, the post of Soil Conservation Officer and Technical Officer are to be filled up by promotion from amongst the substantively appointed Junior Engineer and Technical Assistant who have completed 7 years of service on the Ist day of the year of recruitment. However, 10 percent post of total strength of Cadre reserved for substantively appointed Junior Engineers and Technical Assistants who possess Bachelor Degree in Agriculture or Civil Engineering. For the post of Soil Conservation Officer and Technical Officer the next promotion is available to the post of Deputy Director and Project Officer both of which are in Group 'A' service. The recruitment to the post of Deputy Director or Project Officer is governed by a set of rules known as The Uttar Pradesh Land Development and Water Resources Department (Group 'A') Service Rules, 2003 (Annexure 4 to the writ petition). Under Rule 5 of 2003 Rules, the recruitment to the post of Deputy Director and Project Officer are made only by way of promotion from amongst the substantively appointed Soil Conservation Officer and Technical Officer belonging to the Command Area Project - Bhoomi Sanrakshan Adhikari and Technical Officer Service who have completed 7 years of service. However, the proviso to Rule 5 of 2003 Rules provides that 10 percent of total strength of cadre of Deputy Director and Project Officer would be filled up by grant of promotion to such Soil Conservation Officer who belongs to Command Area Project - Bhoomi Sanrakshan Adhikari and Technical Officer Service and possess bachelor degree in Agronomy or Agriculture/Civil/Mechanical Engineering and have completed 7 years of service. By means of a further amendment it is provided that the recruitment to the post of Joint Director Agriculture is to be made from amongst the Deputy Director/Project Officer of U. P. Land Development and Water Resources Department Group 'A' service. The aforesaid provisions were made applicable vide Notification dated 21.11.2005 whereby the earlier existing Rules 4, ? and 13 of 2003 Rules have been amended by U. P. Land Development and Water Resources Department Group 'A' service (Ist amendment Rules) 2005 (Annexure 4A to the writ petition) (herein after referred to as the amended Rules 2005). Feeling aggrieved by the prescription of 10% separate quota for promotion to Group 'A' service in favour of persons of the Command Area-Project and Bhoomi Sanrakshan Adhikari and Technical Officers Service i.e. Group 'B' service possessing bachelor degree in Agronomy or bachelor degree in Agriculture/Civil/Mechanical Engineering, the petitioner has filed the above noted writ petition.
(3.) WE have heard Sri Ashok Khare, learned senior counsel assisted by Sri Aditya Kumar Singh for the petitioner and Sri Sheo Nath Singh, learned Addl. Chief Standing Counsel appearing for the respondents. The thrust of the submission of the learned counsel for the petitioner in nutshell against the prescription of 10% separate quota for promotion to the post of Group 'A' services for Engineering Graduates or Graduate with Agronomy as subject is that all persons recruited to the Command Area Project - Bhoomi Sanrakshan Adhikari and Technical Officer Service stands on same footing and it is impermissible for the State Government thereafter to classify them on the basis of Educational qualifications alone in making further promotion on the next higher post, by proviso to Rule 5 of Rule 2003 continued by Notification dated 21.11.2005 through amended Rules 2005 and such classification is wholly unjustified and has no correlation whatsoever with any particular objective sought to be achieved, thus same is wholly arbitrary, discrimina-tory, irrational and violative of Article 14 of the Constitution of India. In order to substantiate his arguments learned counsel for the petitioner strenuously urged that the Junior Engineers/Technical Assistants who possess the bachelor degree in Agriculture/Civil Engineering have already received accelerated promo-tion to the post of Soil Conservation Officer and Technical Officer by virtue of proviso to Rule 5 of 1993 Rules. Having received such accelerated promotion to the post of Soil Conservation Officer and Technical Officer there exists no justification for further proviso of accelerated promotion on the basis of such degree to Group 'A' service. The enlargement effected by proviso to Rule 5 of 2003 Rules as amended in the year 2005 by including therein the bachelor degree in Agronomy as also bachelor degree of Mechanical Engineering is wholly irrational and unjustified. He further urged that insisting upon a position of better qualification at the stage of direct recruitment may be justified but there exists no justification for the same for insisting upon such qualification to be possessed by persons who are already in the service as such better qualification would stand substituted by length of service rendered in the department.;