State of Mysore & ANR Vs. P.
Narasing Rao [1967] INSC 197 (31 August 1967)
31/08/1967 RAMASWAMI, V.
RAMASWAMI, V.
WANCHOO, K.N. (CJ) BACHAWAT, R.S.
MITTER, G.K.
HEGDE, K.S.
CITATION: 1968 AIR 349 1968 SCR (1) 407
CITATOR INFO:
D 1972 SC 252 (6) D 1974 SC 1 (40A,46,52) F
1974 SC1631 (28) F 1976 SC 490 (27,106) R 1978 SC 327 (7,9,10) RF 1981 SC 298
(24) RF 1985 SC1124 (7) RF 1989 SC 307 (9) APR 1989 SC1256 (8) F 1989 SC1308
(7) R 1992 SC1754 (5)
ACT:
Constitution of India Arts. 14,
16--Non-matriculate Government employee placed in lower pay scale--Matriculate
employees doing similar work placed in higher scale--Whether
discrimination--Whether higher general education relevant consideration for
fixing higher pay where technical qualifications are similar.
States Reorganisation Act, 1956, s.
115(7)--Respondent in single cadre of matriculate and non-matriculate tracers
in old Hyderabad State--Placed in separate cadre of nonmatriculates in new
Mysore State--Whether his conditions, of service adversely affected.
HEADNOTE:
The respondent was employed as a Tracer in
the Engineering Department in the erstwhile Hyderabad State where the cadre of
Tracers consisted of both matriculates as well as nonmatriculates and no
distinction was made between them. As a result of the reorganisation of States
in 1956 he was allotted to the appellant Mysore State where the cadre of
Tracers was reorganised into two, ,one consisting of matriculate Tracers in a
higher scale of pay and the other of non-matriculates in a lower scale. The
respondent was given the option either to remain in his old Hyderabad scale of
pay or to accept the new scale applicable to nonmatriculates. He refused to
exercise the option and claimed that the cadre of Tracers should not have been
divided into two grades and that no distinction should have been made between
matriculates and non-matriculates. His claim was rejected by the Superintending
Engineer on March 19, 1958 and he filed a writ petition in the High Court
praying that the order of the Superintending Engineer be quashed and for the
issue of writ in the nature, of mandamus to fix his pay in the scale prescribed
for matriculate Tracers. The High Court allowed the petition, holding that
there was no valid reason for making a distinction as both matriculate and nonmatriculate
Tracers were doing the same kind of work and the distinction made was in
violation of Arts. 14 and 16 of the Constitution.
On appeal to this Court, Held: Allowing the
appeal. Higher educational qualifications are relevant considerations for
fixing a higher pay scale and the classification of two grades of Tracers in
the new Mysore State was not violative of Arts.
14 or 16 of the Constitution.
Articles 14 and 16 form part of the same
constitutional code Of guarantees and supplement each other. In other words
Art. 16 is only an instance of the application of the general rule of equality
laid down in Art. 14 and it should be construed as such. Hence there is no
denial of equality of opportunity unless the person who complains of
discrimination is equally situated with the person or persons who are alleged
to have been favoured. [411E-F] 408 The provisions of Art. 14 or Art. 16 do not
exclude the laying down of selective tests, nor do they preclude the Government
from laying down qualifications for the post in question. Such qualifications
need not be only technical and it is open to the Government to consider the
general educational attainments of the candidates and to give preference to
candidates who have better educational qualifications besides the technical
proficiency of a Tracer. [411G412B] General Manager, Southern Railway v.
Rangachari, [1962] 2 S.C.R. 586, 596, referred to.
There was no force in the respondent's
contention that because of his having been in one grade with matriculate
Tracers in the old State and, on his being made to work in a separate
non-matriculate grade in the new State his conditions of service were adversely
affected in violation of s. 116(7) of the States Reorganisation Act 1956.
Furthermore the basis of promotion was merit
and seniority based on the interstate seniority list prepared under the
provisions of the Act; thus the respondent's seniority had not been affected
and he was not deprived of any accrued benefits. [412F-G; 414C-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1238 of 1966.
Appeal by special leave from the judgment and
order dated January 15, 1963 of the Mysore High Court in Writ Petition No. 48
of 1962.
R. Gopalakrishnan and S. P. Nayar, for the
appellants.
S. C. Mazumdar, M. M. Kshatriya and G. S.
Chatterjee, for the respondent.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave, from the judgment of
the Mysore High Court dated January 15, 1963 in Writ Petition No. 48 of 1962
granting a writ -in the nature of mandamus directing the appellants to accord
to the respondent that benefit of both the revised higher pay scales for the
Matriculate tracers with effect from the respective dates on which they came
into force.
The respondent, Narasing Rao was employed as
a tracer in the Engineering Department in the Ex-Hyderabad State on the scale
of pay Rs. 65-90.In the cadre of tracersof that State,there were matriculates
as well as nonmatriculates.But there was no distinction made in the scale of
pay for that reason and all the tracers were placed in the -same scale. The
respondent was a non-matriculate.
There was re-organisation of States in 1956
and as a result of the re-organisation a part of the area of Hyderabad State
became part of the new Mysore State. The respondent was allotted to the new
Mysore State. After the transfer of the respondent to the new State. the cadre
of tracers into which tracers from Bombay State had also been absorbed, was reorganised
into two grades, one consisting of matriculate tracers whose scale of pay was
fixed at Rs. 50-120 and the other of non-matriculates 409 at Rs. 40-80 with
effect from January 1, 1957. It is necessary to state that in the old Mysore
State even before November 1, 1956 there were two grades of tracers, viz.,
non-S.S.L.C. tracers on the pay scale of Rs. 30-50. and S.S.L.C. tracers on the
pay scale of Rs. 40-60. As the respondent was a non-matriculate he was given
the option to accept the new scale of pay i.e., Rs. 40-80 or remain in the old
Hyderabad scale of Rs. 65-90. But the respondent refused to exercise the option
and claimed that the cadre of tracers in the new Mysore State should not have
been divided into two grades and that no distinction should have been made
between matriculates and non-matriculates. The respondent insisted that his pay
should be fixed in the grade Rs.
50-120. The claim was rejected by the
Superintending Engineer on March 19, 1958 and the respondent was told that he
could only be fixed in the new revised scale of Rs. 40-80 as he had not passed
the S.S.L.C. examination. Meanwhile, by an order of the Government dated
February 27, 1961 the pay scales of the tracers in the new State of Mysore were
further revised and the revised pay scales were directed to come into force
with effect from January 1, 1961. Under this Government order, the tracers who
had passed the S.S.L.C. examination were entitled to opt in favour of the pay
scale Rs. 80-150 and those who had not passed that examination were entitled to
get into pay scale of Rs. 70-1
10. The respondent claimed that he was
entitled to the pay scale applicable to the tracers who had passed the S.S.L.C.
examination viz., Rs. 80150. The claim of the
respondent was rejected. Thereafter the respondent filed a writ petition in the
Mysore High Court praying that the order of the Superintending Engineer dated
March 19, 1958 fixing his pay in the scale of non-matriculate tracers and
giving him the option; to retain his old scale may be quashed and for a writ in
the nature of mandamus to fix his pay in the scale prescribed for matriculate
tracers. The High Court allowed the writ petition, holding that there was a
violation of the guarantees given under Arts. 14 and 16 of the Constitution and
granted the relief claimed by the respondent on the ground that there was no
valid reason for making a distinction as both matriculate and non-matriculate
tracers were doing the same kind of work.
The first question to be considered in this
appeal is whether the creation of two scales of tracers in the new Mysore State
who were doing the same kind of work amounted to a discrimination which violated
the provisions of Arts.
14 and 16 of the Constitution.
The relevant law on the subject is
well-settled. Under Art.
16 of the Constitution, there shall be
equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State or to promotion from one office to a
higher office thereunder.
Article 16 of the Constitution is only an
incident of the application of the concept of equality enshrined in 410 Art. 14
thereof. It gives effect to -the doctrine of equality in the matter of
appointment and promotion. It follows that there can be a reasonable
classification of the employees for the purpose of appointment or promotion.
The concept of equality in the matter of promotion can be predicated only when the
promotees are drawn from the same source. 'This Court in dealing with the
extent of protection of Art. 16(1) observed in General Manager, Southern Rly.
v. Rangachari(1):
"Thus construed it would be clear that
matters relating to employment cannot be confined only to the initial matters
prior to the act of employment. The narrow construction would confine the
application of Art. 16(1) to the initial employment and nothing else; but that
clearly is only one of the matters relating to employment. The other matters
relating to employment would inevitably be the provision as to the salary and
periodical increments therein, terms as to leave, as to gratuity, as to pension
and as to the age of superannuation. These are all matters relating to
employment and they are, and must be, deemed to be included in the expression
'matters relating to employment' in Art.
16(1).................. This equality of
opportunity need not be confused with absolute equality as such. What is
guaranteed is the equality of opportunity and nothing more.
Article 16(1) or (2) does not prohibit the
prescription of reasonable rules for selection to any employment or appointment
to any office. Any provision as to the qualifications for the employment or the
appointment to office reasonably fixed and applicable to all citizens would
certainly be consistent with the doctrine of the equality of opportunity; but
in regard to employment, like other terms and conditions associated with and
incidental to it, the promotion to a selection post is also included in the
matters relating to employment, and even in regard to such a promotion to a
selection post all that Art. 16(1) guarantees is equality of opportunity to all
citizens who enter service............... In this connection it may be relevant
to remember that Art. 16(1) and (2) really give effect to the equality before
law guaranteed by Art. 14 and to the prohibition of discrimination guaranteed
by Art. 15(1). The three provisions form part of the same constitutional code
of guarantees and supplement each other. If that be so, there would be no
difficulty in holding that the matters relating to employment must include 'all
matters in relation to employment both prior, and subsequent, to the employment
which are incidental to the employment and form part of terms and conditions of
such employment." (1) [1962] 2 S.C.R. 586, 596.
411 The argument was stressed on behalf of
the respondent that success in the S.S.L.C. examination had no relevance to the
post of tracer and the tracers of the erstwhile State of Hyderabad who were
allotted to the new State of Mysore were persons similarly situated and there
was no justification for making a discrimination against only some of them by
creating a higher pay scale for tracers who had passed the S.S.L.C. examination.
It was contended for the respondent that all, the tracers who were allotted to
the new State of Mysore were persons who were turning out the same kind -of
work and discharging the same kind of duty and there was no rational basis for
making two classes of tracers, one consisting of those who had passed the
S.S.L.C. examination and the other consisting of those who had not. In our
opinion, there is no justification for the argument put forward in favour of
the respondent. It is well-settled that though Art. 14 forbids class
legislation, it does not forbid reasonable classification for the purposes of
legislation.
When any impugned rule or statutory provision
is assailed on the ground that it contravenes Art. 14, its validity can be
sustained if two tests are satisfied. The first test is that the classification
on which it is founded must be based on an intelligible differentia which
distinguishes persons or things grouped together from others left out of the
group; and the second test is that the differentia in question must have a
reasonable relation to the object sought to be achieved by the rule or
statutory provision in question. In other words, there must be some rational
nexus between the basis of classification and the object intended to be achieved
by the statute or the rule. As we have already stated ' Arts. 14 and 16 form
part of the same constitutional code of guarantees and supplement each other.
In other words, Art. 16 is only an instance
of the application of the general rule of equality laid down in Art. 14 and it
should be construed as such. Hence, there is no denial of equality of
opportunity unless the person who complains of discrimination is equally
situated with the person or persons who are alleged to have been favoured, Article
1.6(1) does not bar a reasonable classification of employees or reasonable
tests for their selection. It is true that the selective test adopted by the
Government for making two different classes will be violative of Arts. 14 and
16 if there is no relevant connection between the test prescribed and the
interest of public service. In other words, there must be a reasonable relation
of the prescribed test to the suitability of the candidate for the post or for
employment to public service as such. The provisions of Art. 14 or Art. 16 do
not exclude the laying down of selective tests, nor do they preclude the
Government from laying down qualifications for the post in question. Such
qualifications need not be only technical but they can also be general qualifications
relating to the suitability of the candidate for public service as such. It is
therefore not right to say that in the appointment to the post of tracers the
Government ought to 412 have taken into account only the technical Proficiency
of the candidates in the particular craft. It is open to the Government to
consider also the general educational attainments of the candidates and to give
preference to candidates who have a better educational qualification besides
technical proficiency of a tracer. The relevance of general education even to
technical branches of public service was emphasised long ago by Macaulay as
follows:
Men who have been engaged, up to one and two
and twenty, in studies which have no immediate connection with the business of
any profession, and the effect of which is merely to open, to invigorate, and
to enrich the mind, will generally be found, in the business of every
profession, superior to men who have,, at eighteen or nineteen, devoted
themselves to the special studies of their calling. Indeed, early superiority
in literature and science generally indicates the existence of some qualities
which are securities against viceindustry, self-denial, a taste for pleasures
not sensual, a laudable desire of Honourable distinction, a still more laudable
desire to obtain the approbation of friends and relations. We, therefore, think
that the intellectual test about to be established will be found in practice to
be also the best moral test can be devised." (Hansard, Series, 3 CXXVIII,
754, 755) In our opinion, therefore, higher educational qualifications such as
success in the S.S.L.C. examination are relevant considerations for fixing a
higher pay scale for tracers who have passed the S.S.L.C. examination and the
classification of two grades of tracers in the new Mysore State, one for
matriculate tracers with a higher pay scale and the other for non-matriculate
tracers with a lower pay scale is not violative of Arts. 14 or .16 of the
Constitution.
We proceed to consider the next question
raised on behalf of the respondent, viz., that the condition of service of the
respondent has been adversely affected by the creation of two new pay scales
and that there was a violation of the provisions of s. 115 of the States
Reorganisation Act, 1956 (Act No. 37 of 1956) which states:
"115. Provisions relating to other
services(I) Every person who immediately before the appointed day is serving in
connection with the affairs of the Union under the administrative control of
the LieutenantGovernor or Chief Commissioner in any of the existing State of
Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh, or is serving in connection
with the affairs of any of the existing States of Mysore, Punjab, Patiala and
-East Punjab States Union and Saurashtra shall, as from 413 that day, be deemed
to have been allotted to serve in connection with the affairs of the successor
State to that existing State.
(2) Every person who immediately before the
appointed day is serving in connection with the affairs of an existing State
part of whose territories is transferred to another State by the provisions of
Part 11 shall, as from that day, provisionally continue to serve in connection
with the affairs of the principal successor State to that existing State unless
he is required by general or special order of the Central Government to serve
provisionally in connection with the affairs of any other successor State.
(3) As soon as may be after the appointed
day, the Central Government shall, by general or special order, determine the
successor State to which every person referred to in subsection (2) shall be
finally allotted for service and the date with effect from which such allotment
shall take effect or be deemed to have taken effect.
(4) Every person who is finally allotted
under the provisions of sub-section (3) to a successor State shall, if he is
not already serving therein be made available for serving in that successor
State from such date as may be agreed upon between the Governments concerned,
and in default of such agre ement, as may be determined by the Central
Government.
(7) Nothing in this section shall be deemed
to affect after the appointed day the operation of the provisions of Chapter I
of Part XIV of the Constitution in relation to the determination of the conditions
of service of persons serving in connection with the affairs of the Union or
any State:
Provided that the conditions of service
applicable immediately before the appointed day to the case of any person
referred to in sub-section (1) or sub-section (2) shall not be varied to his
disadvantage except with the previous approval of the Central Government."
It was stated that in the erstwhile Hyderabad State the respondent was kept in
one grade along with matriculate tracers and there has been a violation of the
proviso to s. 115(7) of the States Reorganisation Act, 1956, because in the
new Mysore State the respondent has been made to work in a separate grade of
non-matriculate tracers. We do not think there is any substance in this
contention. We do not propose, in this case, to consider what is the full scope
and meaning of the phrase "Conditions of SCI-13 414 service"
occurring in the proviso to S. 115 of the States Reorganisation Act. It is
sufficient for us to say that, in the present cast,, there is no violation of
the proviso and the respondent is not right in contending that his condition of
service is adversely affected because he is made to work in the grade of
non-matriculate tracers in the new Mysore State. It was alleged by the
respondent that according to Hyderabad rules 20 per cent of the vacancies of
Sub Overseers were to be from the grade of tracers and for those who were not
promoted there was another grade of Rs. 90-120 and if the order of the
Superintending Engineer dated March 19, 1958 was to stand, the respondent's
chance of promotion would be affected. In their counter-affidavit the
appellants have said that 10 percent of the tracers in the new State of Mysore
are entitled to be promoted to the grade of Assistant Draftsmen in the scale of
Rs. 110-220. The basis of promotion to the higher grade was the inter-State
seniority list prepared under the provisions of the States Reorganisation Act.
It was stated that the seniority of the respondent was not affected and he had
not been deprived of any accrued benefits. The basis of promotion to the higher
grades was selection based on merit-cum-seniority. In other words, both
matriculate and non-matriculate tracers were eligible for promotion on the
basis of the inter-State seniority list prepared for this Department. In our
opinion, Counsel on behalf of the respondent is unable to make good his
submission on this aspect of the case.
For the reasons expressed we hold that the
judgment of the Mysore High Court dated January 15, 1963 in Writ Petition No.
48 of 1962 should be set aside and this appeal must be allowed. But, as
directed by this Court in its order granting special leave dated November 6, 1963,
the appellant State of Mysore will pay the costs of the respondent.
R.K.P.S. Appeal allowed.
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