Ganga Ram & Ors Vs. Union of India
& Ors [1970] INSC 10 (2 February 1970)
02/02/1970 DUA, I.D.
DUA, I.D.
RAY, A.N.
HIDAYATULLAH, M. (CJ) SHAH, J.C.
HEGDE, K.S.
GROVER, A.N.
CITATION: 1970 AIR 2178 1970 SCR (3) 481 1970
SCC (1) 377
CITATOR INFO:
RF 1972 SC1375 (39) R 1974 SC 1 (40A) R 1974
SC 246 (13,17) R 1976 SC 490 (34) RF 1977 SC2051 (33) R 1978 SC 327 (7,9) C
1980 SC 452 (51) RF 1981 SC1041 (11) RF 1981 SC1699 (3) D 1985 SC1605 (11,17)
APR 1989 SC1256 (8)
ACT:
Indian Railways Establishment Manual-Para
20(b) of Chapter 11 whether violates Arts. 14 and 16 of Constitution of
India-Discrimination whether exists between direct recruits and promotees in
respect of posts of Grade I Accounts Clerks.
HEADNOTE:
The petitioners were officiating clerks Grade
I in the office of the Deputy Chief Accounts Officer (Traffic Accounts Branch)
Northern Railway. They had been promoted to these posts after passing a
qualifying examination which in the Indian Railways Establishment Manual was
referred to as the Appendix 2 Examination. When respondents 4 to 6 and 11 who
had passed the said examination later than the petitioners were shown as senior
to the petitioners in Grade I on the strength of para 20(b) of Chapter 11 and
other relevant provisions of the aforesaid Manual, the petitioner filed a writ
petition under Arts. 14 and 16 of the Constitution. Discrimination according to
the petitioners arose because while seniority among direct recruits to Grade I
was fixed on the basis of their appointment, the seniority of promotees to
Grade I like the petitioners was regulated by their seniority in Grade It
without regard being paid to the fact of their having 'Passed the Appendix 2
examination earlier or their having officiated in Grade 1.
HELD : (i) The equality of opportunity in the
matter of services undoubtedly takes within its fold all stages of services
from initial appointment to its termination including promotion but it does not
prohibit the prescription of reasonable rules for selection and promotion,
applicable to all members of a classified group.
Mere production of inequality is not enough
to attract the constitutional inhibition because every classification is likely
in some degree to produce some inequality. The classification need not be
scientifically perfect or logically complete. The matter has to be considered
in a practical way without whittling down the equality clause.
The classification must however be founded on
intelligible differentia which on rational grounds distinguishes persons
grouped together from those left out, and it must bear a just and reasonable
relation to the object sought to be achieved. [483 F-H; 484 A] (ii) The State
which encounters diverse problems arising from a variety of circumstances is
entitled to lay down conditions of efficiency and other qualifications for
securing the best service for being eligible for promotion in its different
departments. In the present case the object which is sought to be achieved by
the relevant provisions is the requisite efficiency in the Accounts Department
of the Railway establishment. The departmental authority is the proper judge of
its requirements. [488 C-D] The direct recruits and the promotees like the
petitioners clearly constitute different classes and this classification is
sustainable on intelligible differentia which has a reasonable connection with
the object of efficiency Fought to be achieved, Promotion to Grade I is guided
by the 482 consideration of seniority-cum-merit. It is therefore difficult to
find fault with the provision which places in one group all those Grade 11
clerks who have qualified by passing the Appendix 2 examination. The fact that
the promotees from Grade 11 who have officiated for some time are not given the
credit of this period when a permanent vacancy arises also does not attract the
prohibition contained in Arts. 14 and 16. It does not constitute any hostile
discrimination and is neither arbitrary nor unreasonable: It applies uniformly
to all members of the class of Grade 11 clerks who have qualified and become
eligible.
The petitioners had not discharged the onus
which lay on them to prove discrimination. [488 F] Meryyn Coutindo v. Collector
of Customs, Bombay, [1966] 3 S.C.R. 600, referred to.
ORIGINAL JURISDICTION: Writ Petition No. 124
of 1967.
Petition under Art. 32 of the Constitution of
India for enforcement of the fundamental rights.
S. K. Mehta and K. L. Mehta, for the
petitioners.
N. S. Bindra and S. P. Nayar, for respondents
Nos. 1 to 3.
Harbans Singh for respondents Nos. 4 to 10.
The Judgment of the Court was delivered by
Dua, J. Out of the five petitioners in this petition under Art. 32 of the
Constitution Kashmiri Lal, petitioner no. 5 having since retired, is no longer
interested in the result of these proceedings. The claim of only four
petitioners thus survives for consideration. They are officiating clerks, Grade
1, in the office of Deputy Chief Accounts Officer (Traffic Accounts Branch)
Northern Railway. They were promoted from Grade 11 after passing the
departmental qualifying examination described as Appendix 2 examination.
They claim that their seniority should be
determined as from the date of their appointment as officiating clerks Grade I
and not on the basis of their position in the gradation list of Clerks, Grade
11. Their grievance is that they were appointed as officiating clerks Grade 1,
after passing the Appendix 2 examination long before respondents 4 to 6 and 11
but these four respondents are shown as senior to the petitioners on the ground
of their seniority in Grade II.
The petitioners seek to support their claim
by relying on Arts. 14 and 16 of the Constitution. The seniority of the direct
recruits to Grade 1, the petitioners complain, is determined on the basis of
their appointment, whereas the seniority of the petitioners, who are promotees.
from Grade II to officiate in Grade 1, continues to be determined on the basis
of their seniority in Grade II. It is emphasised that both the direct recruits
and the promotees, like the petitioners, have to pass the Appendix 2
examination. But their seniority is determined by different methods. It is
further complained that Grade II clerks who pass the qualifying Appendix 2
examination are not 483 promoted immediately. They have to -wait till a vacancy
occurs and even at the time of filling the vacancy the seniormost qualified
clerk is selected for promotion without giving any preference to those who have
qualified earlier in point of time. Again, when a permanent post falls vacant
all the eligible clerks in Grade II are considered at par without giving any
credit or preference to those who have already officiated as Clerks, Grade 1. A
junior clerk, Grade II, qualifying earlier, according to the petitioners'
grievance, continues to remain junior for the purpose of promotion and
confirmation in the permanent post in Grade I and a senior clerk, Grade 11,
qualifying later retains his seniority for this purpose. Similarly, in filling
leave vacancies it is complained that if a clerk is appointed to officiate in
short term leave vacancy, then on the return of the incumbent of the post,
instead of reverting the clerk so appointed to officiate, the junior-most
according to the gradation list in Grade 11, officiating in Grade I, is
reverted even though he may have qualified earlier than the former and may also
have officiated for some time against a regular post in Grade 1. The
petitioners' right of equality before the law and equality of opportunity in
matters of public employment is stated thus to have been violated.
The right of equality is guaranteed by Arts. 14
to 16 of our Constitution. The petitioners rely on Arts. 14 and 16(1)Article 14
is an injunction to both the legislative and the executive organs of the State
and other subordinate authorities not to, deny to any person equality before
the law or the equal protection of the laws. Article 16 is only an instance of
the general rule of equality laid in Art. 14.
Sub-Article (1) of Art. 16 guarantees to
every citizen equality of opportunity in matters of public employment thereby
serving to give effect to the equality before the law guaranteed by Art. 14.
The equality of opportunity in the matter of
services undoubtedly takes within its fold all stages of service from initial
appointment to its termination including promotion but it does not prohibit the
prescription of reasonable rules for selection and promotion, applicable to all
members of the classified group. Mere production of inequality is not enough to
attract the constitutional inhibition because every classification is likely in
some degree to produce some inequality. The State is legitimately empowered to
frame rules of classification for securing the requisite standard of efficiency
in services and the classification need not be scientifically perfect or
logically complete.
In applying the wide language of Arts. 14 and
16 to concrete cases a doctrinaire approach should be avoided and the matter
considered in a practical way, of course, without whittling down the equality
clauses.
484 The classification, in order to be
outside the vice of inequality must, however, be founded on an intelligible
differentia which on rational grounds distinguishes, persons grouped together
from those left out.
The differences which warrant a
classification must be real and substantial and must bear a just and reasonable
relation to the object sought to be achieved. If this test is satisfied then
the classification cannot be hit by the vice of inequality. It is the
background of this broad principle that the petitioners' grievance is to be
considered.
The relevant provisions in the Indian
Railways Establishment Manual directly applicable to the petitioners' case may
now be seen. They are contained in paras 48 and 49, Chapter 1, Section B and
paras 16 and 20(b) of Chapter 11. As the petitioners also rely upon paras 17 to
19 and 21 of Chapter 11 in support of the argument that para 20(b) is
discriminatory it is desirable to reproduce all these paragraphs.
"48. The classes included in this group
and the normal channel of their promotion are as under :Clerks, Grade 11
(110-180) Clerks Grade I (Rs. 130-300) ---Sub-Heads (Rs. 210-380) Stock
Verifiers (Rs. 210-380) Junior Accountants Jr. Inspectors Jr. Inspectors of
(Rs. 270-435) of Station Ac/s Store Accounts (Rs. 270-435) (Rs. 270-435) Sr.
Accountants Sr. Inspectors of Sr. Inspectors of (Rs. 435-575) Station Ac/s
Stores Ac/s (Rs. 435-575) Rs. 435-575) Recruitment :-Initially in the grade of
Clerks, Grade 11 Direct recruitment for 20% vacancies in the grade of Clerks,
Grade I.
485 Qualifications :(a) Age (i) For clerks,
Grade 11 18-21.
(ii) For clerks, Grade 1 18-25 (b) Education
For clerks, Grade 11, Matriculation, till replaced by Higher Secondary. For
clerks, Grade 1, University Degree, preference being given to persons with I
and 11 Division honours and Master's Degree.
Directly recruited Clerks, Grade 1, will be
on probation for one year and will be eligible for confirmation only after
passing the prescribed departmental examination in Appendix
2. Necessary facilities will be given to them
to enable them to acquire a working knowledge of the rules and procedure.
49. Such of the Clerks, Grade 11, as qualify
in the departmental examination as prescribed in Appendix 2 or those who may
have been permanently exempted from passing the said examination will be
eligible for promotion as Clerks, Grade 1, and sub-heads. They will be eligible
for a minimum starting pay of Rs. 150 per month or will be granted four advance
increments on promotion to Grade I after their pay has been fixed under the
ordinary rules. Promotion to the grade of Sub-Heads will be by
seniority-cum-suitability.
CHAPTER II " 17. Subject to what is
stated in paragraphs 18 and 19 below, where the passing of a departmental
examination or trade test has been prescribed_ as a condition precedent to the
promotion to a particular non-selection post, the relative seniority of the
railway servants passing the examination/test in their due turn and on the same
date or different dates which are treated as' one continuous examination, as
the case may be, shall be determined with reference to their substantive or
basic seniority.
18. A railway servant who, for reasons beyond
his control is unable to appear in the examination/test in his turn along with
others, shall be given the examination/test immediately he is available and if
he passes the same, he shall-be entitled for promotion to the post as if he had
passed the examination/test in his turn.
19. Seniority for promotion as Junior
Accountants, Junior Inspectors of Station or Stores Accounts :Seniority for
promotion to the rank of junior accountant or junior inspector of Station or
Stores Accounts should count entirely according to the date of 486 passing the
examination qualifying for promotion to those ranks. Candidates who pass the
examination in a year are ipso facto senior to those who qualify in subsequent
years irrespective of their relative seniority before passing the examination.
In the case of staff of Ex-Company Railways, who are exempted from passing the
examination, the date on -which they are declared fit for promotion to the rank
of Accountant or Inspector should be considered as the date of their passing.
On receipt of the result of the above examination each railway administration
should immediately hold a selection test of the candidates declared successful
along with any eligible ex-Company or ex-State Railway Staff, who may be asked
to appear before the selection board in accordance with the procedure laid down
by the Railway Board from time to time. While the selection board will
determine in the case of the ex-Company or ex-State Railway staff, their
suitability for promotion as accountant/Inspector before placing them on the
panel, no candidate who has qualified in the said examination will be declared
ineligible for promotion as a junior Accountant/Inspector, the selection board
only assigning a suitable place to each such candidate in order of merit.
The staff placed on the panel in any year
will rank senior to those empanelled in subsequent years.
20. Date of passing the Departmental
Examination Test to regulate seniority:-(a) Except as provided for in
sub-paragraph (b) below, seniority of two or more railway servants, who pass
the departmental examination/test on different dates, not treated as one
continuous examination, will be regulated entirely by the date of passing the
examination or test.
(b) The seniority of Accounts Clerks, Grade I
and Stock Verifiers is to be determined with reference to their substantive or
basic seniority in Grade 11 irrespective of the dates they qualify for promotion
as Clerks Grade I by passing the examination prescribed for the purpose.
21. Seniority on promotion to non-selection
posts Promotion to non-selection posts shall be on the basis of
seniority-cum-suitability being judged by the authority competent to fill the
post, by oral and/or written 487 test or a departmental examination as
considered necessary and the record of service. The only exception to this
would be in cases where for administrative convenience, which should be
recorded in writing, the competent authority considers it necessary to appoint
a ,railway servant other than the senior most suitable railway servant to
officiate in a short term vacancy not exceeding two months as a rule and 4
months in any case. This will, however, not give the railway servant any
advantage not otherwise due to him." Appendix 2, in addition to the
syllabus for the examination provides :
"3. The examination will be conducted by
the Head of each office, who will also decide the intervals at which it should
be held.
4. (a) Normally no railway servant will be
permitted to take the examination more than three, but the Financial Adviser
and Chief Accounts Officer may in deserving cases permit a candidate to take
the examination for a fourth time, and, in very exceptional cases, the General
Manager may permit a candidate to take the examination for the fifth-and the
last time.
(b) No railway servant, who has less than six
months' service in a Railway Accounts Office or who has not a reasonable chance
of passing the examination will be allowed to appear in the examination
prescribed in this Appendix.
In exceptional circumstances, the condition
regarding six months' minimum service may be waived by the General Manager.
(c) Temporary railway servants may be
permitted to sit for the examination but it should be clearly understood that
the passing of this examination will not give them a claim for absorption in
the permanent cadre.
(d) A candidate who fails in the examination
but shows marked excellence by obtaining not less than 50% in any subject may
be exempted from further examination in that subject in subsequent
examination." It is quite clear that para 49 does not confer any right to
immediate promotion on those Grade II clerks who pass the qualifying Appendix 2
examination. The only benefit which accrues to 488 them is that one hurdle is
removed from their way and they become eligible for being considered for
promotion to Grade
1. This promotion is governed by the test of
seniority-cumsuitability. All those who qualify for promotion are treated at
par for this purpose and they are grouped together as constituting one class.
The fact that one person has qualified earlier in point of time does not by
itself clothe him with a preferential claim to promotion as against those who
quality later. This examination is considered to be a continuous examination
and as is clear from para 17 success at this examination does not constitute
the basis of seniority which continues to be dependent on the substantive or
basic seniority in Grade 11. The question which directly arises for
determination is : does the procedure laid down in these instructions violate
the petitioners' right as guaranteed by Arts. 14 and 16 ? The State which
encounters diverse problems arising from a variety of circumstances is entitled
to lay down conditions of efficiency and other qualifications for securing the
best service for being eligible for promotion in its different departments. In
the present case the object which is sought to be achieved by the provisions
reproduced earlier is the requisite efficiency in the Accounts Department of
the Railway establishment. The departmental authority is the proper judge of
its requirements.
The direct recruits and the promotees like
the petitioners, in our opinion, clearly constitute different classes and this
classification is sustainable on intelligible differentia which has a
reasonable connection with the object of efficiency sought to be achieved.
Promotion to Grade I is guided by the consideration of seniority cum merit. It
is, therefore, difficult to find fault with the provision which places in one
group all those Grade II clerks who have qualified by passing the Appendix 2
examination. The fact that the promotees from Grade 11 who have officiated for
some time are not given the credit of this period when a permanent vacancy
arises also does not attract the prohibition contained in Arts. 14 and 16. It
does not constitute any hostile discrimination and is neither arbitrary nor
unreasonable. It applies uniformly to all members of Grade II clerks who have
qualified and become eligible. The onus in this case is on the petitioners to
establish discrimination by showing that the classification does not rest upon
any just and reasonable basis. The difference emphasised on behalf of the
petitioners is too tenuous to form the basis of a serious argument. Their
challenge, therefore, fails.
The decision in Mervyn Coutindo v. Collector
of Customs, Bombay(1) on which reliance has been placed on behalf of the
petitioners dealt with a different problem though the principle (1) [1963] 3
S.C.R. 600., 489 of law laid down there seems to go against the petitioners'
submission. It was expressly observed that there is no inherent vice in the
principle of fixing seniority by rotation in a case when a service is composed
in fixed proportion of direct recruits and promotees. The distinction between
direct recruits and promotees as two sources of recruitment being a recognised
difference, nor obnoxious to the equality clauses,' the provisions which
concern us cannot be struck down on the ratio of this decision.
The petition accordingly fails and is
dismissed but without costs.
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