NAOLEKAR, J. - (1.) PETITIONERS in all writ petitions were appointed as Fieldman/supervisor/village Level Workers in the Agriculture Department of the State of Rajasthan. Thereafter they were promoted to the post of Assistant Agriculture Officer. The services of the petitioners were initially governed by the Rajasthan Subordinate Services (Recruitment and other Service Conditions) Rules, 1960. Subsequently, in the year 1978 the respondent No. 1 State Government, in exercise of the powers conferred by proviso to Article 309 of the Constitution of India, framed rules for regulating recruitment to the posts in, and the general conditions of service of persons appointed to the Rajasthan Agriculture Subordinate Service, namely, the Rajasthan Agriculture Subordinate Service Rules, 1978 (for short "the Rules of 1978" ). Under the Rules of 1978 the recruitments or appointments to the post in the service are to be made by two methods, namely, (i) by direct recruitment in accordance with Part-IV of the Rules of 1978; and (ii) by promotion in accordance to Part-V of the Rules of 1978. The proportion of the aforesaid recruitments is to be in accordance to Column 3 of the Schedule which provides as under:- SCHEDULE Name of the Post Method of recruit- ment Qualification for direct re- cruitment Post From which pro motion is to be made Experience for pro motion Age limit Remarks 1 2 3 4 5 6 7 1. Assistant Agriculture Officer (Agriculture Assistant/agriculture Extension Officer/farm Manager ). 75% by di rect recruit ment. B. S. C. Agriculture from a University established by Law in India � � 35 years. 12% by promotion from Agriculture Supervisor. � Agriculture Supervisor. 10 years experience on the post mentioned in Column 4 including experience of the post of Agriculture Supervisor. 12% by promotion from Village Level Workers of Commu- nity Deve-lopment & Panchayat Depart- ment Village Level Workers of Community Develop- ment and Panchayat Depart- ment. 10 years Experience on the post mentioned in Column 4 2. Agriculture Supervisor 100% by direct recruitment. Secondary/ Matric with Agriculture Or Secon- dary/matric with (i) Diploma in Agriculture 28 years or (ii) Training in Soil Conser- vation from a Departmental Training Centre or any other recognised Institution. or (iii) Gram Sewak Training
(2.) SUBSEQUENTLY an amendment was brought about to the Rules and the Schedule where under the appointments to the post of Assistant Agriculture Officer were to be made 50% by direct recruitment, 45% by promotion from Agriculture Supervisors and 5% by promotion from village Level Workers of Community Development and Panchayat Department. Thus, it is apparent from the Rules of 1978 that the post of Assistant Agriculture Officer was to be filled in 75% by direct recruitment and later on 50% by direct recruitment. The qualification required from a candidate was B. Sc. (Agriculture) from a University established by Law in India. Twelve-and-a-half percent of posts of Assistant Agriculture Officer were to be filled in by promotion from the Agriculture Supervisors having ten years experience on the post and twelve percent of posts of Assistant Agriculture Officer were to be filled in by promotion from the post of Village Level Workers of Community Development and Panchayat Department having ten years experience. As per Rule, for filling up the post of Assistant Agriculture Officer, two methods are available, namely, (i) by direct recruitment and (ii) by promotion. The petitioners were promoted to the post of Assistant Agriculture Officer whereas certain other persons were recruited directly to the post of Assistant Agriculture Officer. The Agriculture Department published a common seniority list of the promotees as well as of the direct recruits on 5. 1. 1985 wherein the persons, promoted as Assistant Agriculture Officer, had been placed senior than those who have been recruited directly by Public Service Commission. Later on final seniority list was published by the Department and the seniority of the promotees was maintained. There are two avenues available for filling up the post of Assistant Agriculture Officer in the Department - (ii) by Promotion and (ii) by direct recruitment. However, in the matter of pay scale, the direct recruits and the promotees are treated differently under the different Rules and they are given different pay scales. The basis for distinction of pay scales appears, according to the petitioners and admitted by the respondents, to be the qualification. The direct recruits who are B. Sc. (Agriculture) from the University established by Law in India, have been given the higher pay scale whereas the promotees have been given lower pay scale, although, both are placed on the post of Assistant Agriculture Officer. Petitioners, who are the promotees, being aggrieved by the Rules under which different pay scales have been provided for the direct recruits and the promotees to the post of Assistant Agriculture Officers on the basis of their educational qualification, have filed the above mentioned writ petitions. The petitioners have challenged the Rajasthan Civil Services (Revised New Pay Scales) Rules, 1976, the Rajasthan Civil Services (Revised Pay Scales) Rules, 1983, the Rajasthan Civil Services (Revised Pay Scales) Rules, 1987 and the Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 in so far as they make a distinction in pay scales by providing two categories within the same post of the Assistant Agriculture Officer in the respondent Department. It is the case of the petitioners that once the incumbent is promoted or directly recruited to one post, there cannot be a distinction in the pay scale on the basis of educational qualification required for recruitment or on a feeder post for filling up the higher post. A Chart is given showing different pay scales for direct recruits and the promotees to the post of Assistant Agriculture Officer under the Rules framed time to time, as under:- S. No. Name of the Rules Assistant Agriculture Officer For Agriculture Graduates (Direct recruits) For Non-Agriculture Graduates (Promotees) Existing Revised Existing Revised 1. Rajasthan Civil Services (Revised Pay Scales) Rules, 1976 225-525 550-1010 180-425 470-830 2. Rajasthan Civil Services (Revised Pay Scale) Rules, 1983 550-1010 740-1420 470-830 640-1180 3. Rajasthan Civil Services (Revised Pay Scale) Rules, 1987 740- 1420 1420-2825 640-1180 1160 2360 4. Rajasthan Civil Services (Revised Pay Scales) Rules, 1989 1400-2825 1640-2900 1160-2360 1400-2360 It appears from the Chart that under the Rules two pay scales were prescribed for the same post. In the case of Kamlakar & Others vs. Union of India & Others (1), it has been held by the Apex Court that once the direct recruits and the promotees are in one cadre, distinction between them disappears, at any rate so far as equal treatment in the same cadre for payment of pay scale given is concerned. The birthmarks have no relevance in this connection. The distinction between direct recruits and those who were promotees, is not permissible, Thus, it has been authoritatively laid down by the Apex Court that once the selection is made to one post either by direct recruitment or by promotion and the persons became member of one cadre, there cannot be any distinction made between them in the matter of pay scale. In the present case there is clearly a distinction drawn in the matter of pay scale between the direct recruits and the promotees to the post of Assistant Agriculture Officer which is not permissible under the Law.
(3.) THE writ petitions are allowed. THE Pay Scale Rules framed or amended from time to time in so far as they prescribe different pay scales for the direct recruits and the promotees to the post of Assistant Agriculture Officer are quashed. It has been held by me that two pay scales are not permissible in the same cadre on the basis of the recruitment being made directly or by promotion. Now the question is as to what relief the petitioners are entitled to. It is alleged in the writ petitions that petitioners are agitating the question themselves or through their Association, namely, All Rajasthan Assistant Agriculture Officers Association, Jaipur, to bring about the uniformity in the pay scales of Assistant Agriculture Officers irrespective of the educational qualification, prescribed for the direct recruits; on their representations the Director (Agriculture) made recommendations for removing the difference/anomaly in the pay scales vide his letter dated 27th of December, 1983 written to the Special Secretary (Group-I) Agriculture Department, Rajasthan. Again vide letter dated 18. 04. 1988 the Director (Agriculture) requested the Agriculture Production Secretary, Rajasthan, that there should be one pay scale for all the Assistant Agriculture Officers in the Department. Similarly, the petitioners had, through their Association, submitted various representations on 17. 12. 1988, 20. 1. 1989, 9. 5. 1989 and 19. 6. 1989 but of no result. Ultimately, first Writ Petition No. 3905/90 was filed on 15. 5. 1990 challenging two pay scales prescribed for direct recruits and promotees on the post of Assistant Agriculture Officer. It may be seen that in the Rajasthan Civil Services (Revised Pay Scales) Rules, 1976 and thereafter in the Pay Scale Rules revised from time to time there were two pay scales prescribed for the direct recruits (agriculture graduates) and promotees (non-agriculture graduates) on the post of Assistant Agriculture Officer. The petitioners themselves and through their Association had time and again made several representations but no decision was taken by the Government to provide one pay scale for direct recruits and the promotees on the post of Assistant Agriculture Officer, yet the petitioners did not choose to approach this Court challenging two pay scales prescribed for direct recruits and the promotees on the post of Assistant Agriculture Officer by filing writ petitions till 15. 5. 1990. It appears that the petitioners were satisfied only in making representations and getting recommendations through the Director (Agriculture ). In fact, the petitioners should have approached this Court within a reasonable period when their representations or the recommendations made by the Director (Agriculture) did not bear any fruit. Merely not challenging the action of the Government is not a factor for the Court to refuse appropriate relief but it is also the relevant consideration not to unsettle the settled things. The petitioners have not approached the Court in spite of no relief granted to them by the Government; thus, they would not be entitled for fixation of their pay in the pay scale which was granted to the direct recruits (agriculture graduates) on the post of Assistant Agriculture Officer right from the year of their promotion on the post of Assistant Agriculture Officer but would be entitled for the said relief from the date of filing of the first writ petition in this Court i. e. 15. 5. 1990 challenging two different pay scales prescribed for direct recruits and promotees on the post of Assistant Agriculture Officer. ;