State of Mysore Vs. M. N. Krishna
Murthy & Ors  INSC 246 (5 October 1972)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
SIKRI, S.M. (CJ) PALEKAR, D.G.
CITATION: 1973 AIR 1146 1973 SCR (2) 575 1973
SCC (3) 559
CITATOR INFO :
F 1974 SC2077 (5,9) E 1975 SC2112 (4) E&R
1978 SC 515 (7) D 1978 SC 747 (5,10) R 1981 SC1829 (121) F 1987 SC 415 (16) R
1987 SC1858 (18)
Mysore State Accounts Services (Recruitment)
Rules 1959--(As amended retrospectively by State Government Notifications Nos.
GSR 384 dated 30th August, 1967)--Division into two classes of members of the
same service, belonging to the same cadres, for purposes of a difference to be
made in their promotion chances--Rule-making power under proviso to Article 309
of the Constitution--Scope of--Cannot be used to validate unconstitutional
discrimination in promotional chances.
Practice--Points not raised or argued before
High Court--Not allowed to be raised for first time before Supreme Court.
The two respondents, who were petitioners
before the High Court had joined the Accounts Service in the Controller's
Office of the former Mysore State as first and second division clerks.
Consequent upon the abolition of the Controller's Office, the petitioner began
working as Divisional Accounts Cadre was created by the Mysore Govt.
under the administrative control of the Chief
Engineer. Both the petitioners passed the prescribed examinations and were
absorbed in the Divisional Accounts Cadre. In April, 1959, the PWD
Reorganisation Committee recommended the transfer of the PWD Accounts Branch
into the newly set-up Controller of State Accounts. Accordingly, the
petitioners came under the administrative control of the Controller and the
designation of their office was changed to that of "Accounts Superintendent"
On 15-5-1959, the two formerly separate units of the Accounts service, namely
PWD Accounts Unit under the Chief Engineer, PWD and the Local Funds Audit Unit,
known also as "the said Accounts Department" came under the common
administrative control of the Controller of State Accounts. On 26-5-59, the
Mysore State Accounts Service Cadre Recruitment Rules were issued and combined
cadre strengths were fixed. On 30-8-67, the State Govt.
issued three Notifications amending the 1959
Rules with retrospective effect. The petitioners challenged the Notifications and
the High Court as being violative of Articles 14 and 16 (1) of the Constitution
of India. The High Court quashed the three notifications and the promotions of
the respondents in the Writ Petition.
Dismissing the appeal.
HELD : (i) The High Court rightly declared
the purported amendments in the rules of 1959, which sought to disintegrate a
service which had been integrated, to be ultra vires. Such amendments made for
the purpose of justifying the illegal promotion made, in the teeth of the
protection conferred by Articles 14 and 16(1) of the Constitution of India upon
Indian citizens in Government service, could not be upheld. The power of making
rules relating to recruitment and conditions of service under the proviso to
Article 309 could not be used to validate unconstitutional discrimination in
promotional chances of Government servants who belong to the same category.
[579C] 2-L499Sup. Cl/73 576 Inequality of opportunity of promotion, though not
unconstitutional per se, must be justified On the strength of rational criteria
co-related to the object of such a difference must be presumed to be selection
of the most competent from amongst those possessing qualifications and
backgrounds entitling _them to be considered as members of one class. Articles
14 and 16(1) of the Constitution must be held to be violated when member of one
class are not even considered for promotion. [580G] State of Mysore V.
Padmanabhacharya AIR 1966 S.C. 602 State of Punjab v. Joginder Singh, AIR 1963
S.C. 913 and K. M. Bakshi v. Union of India  Supp. 2 S.C.R. 169 relied
Ram Lal Wadhwa v. The State of Haryana AIR
1972 S.C. 1982 and S. G. Jatsinghani v. Union of India  2 S.C.R.
(ii) It is a well recognised practice of the
Supreme Court not to allow new points to be raised for the first time in the
Supreme Court when they involve investigation of questions of fact. [577G]
CIVIL APPELLATE JURISDICTION : Civil Appeals
No, 193 & 194 of 1971.
Appeals by special leave from the judgment
and order dated April 11, 1969 of the Mysore High Court at Bangalore in Writ
Petitions Nos. 1416 and 2918 of 1967.
A. R. Som Nath Iyer, and M. Veerappa, for the
appellant (in both the appeals).
R. B. Datar and S. N. Prasad for respondent
No. 1 (in both the appeals).
M. Ramajois S. S. Khanduja and Lalita Kohli,
for respondents Nos. 2 & 4-8 & Interveners (in M. Choudhajah & 14
others in C.A. No. 193/71).
A. G. Ratnaparkhi for Interveners (C. Y.
Shastri & 19 Ors. in C.A. No. 193/71.).
The Judgment of the Court was delivered by
BEG, J. The State of Mysore has come to this Court with two appeals now before
us by Special Leave against the common judgment on two Writ Petitions which
were allowed. The High Court of Mysore had quashed three State Government
Notifications Nos. GSRS. 384, and 392 and 303, dated 30th August, 1967,
amending the Mysore State Accounts Services (Recruitment) Rules, 1959, and the
promotions of Respondents 3 to 8 of in Writ Petition No. 1416/67. It had
directed the State of Mysore to consider the cases of the petitioners with
those of Respondents 3 to 8 for promotion before it under the Mysore State
Accounts Services (Recruitment) Rules 1959, made under Article 309 of the
Constitution of India.
notified on 26-5-1959.
577 The two petitioners before the High
Court, who are respondents before us, had joined the Accounts' services in the
Comptroller's office of the former Mysore State as first and second Division
Clerks. Consequent upon the abolition of the Comptroller's office the
petitioners began working as Accounts Clerks under the Chief Engineer, P.W.D.
On 31st October, 1953, a Divisional Accounts' Cadre, in the scale of Rs.
130-335 was created by the Mysore Government under the administrative control
of the Chief Engineer. Both the petitioners passed the prescribed examinations
and were absorbed in the Divisional Accounts' Cadre. It appears that in April,
1959, the P.W.D. Reorganisation Committee had recommended the transfer of the
P.W.D. Accounts' Branch in toto to the newly set up Controller of State
Accounts. in accordance with this recommendation, the petitioners came under
the administrative control of the Controller and the designation of their
office was changed to that of "Accounts' Superintendent". On 15th
May, 1959, the two formerly separate units of the Accounts service, namely the
P.W.D. Accounts unit, under the Chief Engineer of P.W.D., and the. Local Fund
Audit unit, known also as "the State Accounts' Department", came under
the common administrative control of the Controller of State Accounts. On 26h
May, 1959, the Mysore State Accounts Services' Cadre and Recruitment Rules were
issued and combined cadre strength were fixed.
The High Court after examining the rules of
1959, in the context of all the orders, proceeding and following the
promulgation of these Rules, concluded: "There cannot be the slightest
doubt from these rules that a clear and complete integration was brought about
between the two units". It pointed out that the qualifications and status
of the officers of the formerly separate units were identical, their work was
of the same nature, the recruiting authorities were the same, the standards
observed and tests prescribed for entry into the formerly separate units were
identical. The result of the Rules of 1959 was that an artificial distinction
based on mere separate control had been abolished so that both units came under
the legally single administrative Control of the Accounts' Department in charge
of the Controller of State Accounts. The petitioners became absorbed in what
was legally a single permanent service regulated by uniform After examining the
cases of the petitioners that, in the matter of promotions, they were
discriminated against simply because they had worked in the P.W.D. Accounts
Unit, which had ceased to exist, the High Court held that the petitioners'
grievances were justified. It found that figures showing the number of
appointments of members of the same service derived. from the formerly separate
units indicated "a striking disparity in the promotional opportunities
between the officers of the two wings in the same cadres".
578 It said: "While the rules of 1959
integrated the two wings into one service and provided for promotion on the
basis of seniority-cum-merit, the impugned Notifications fixing up the cadre
strength reduce the number of promotional posts available to the Public Works
Accounts Unit to a very low figure as compared with the promotional
opportunities open to the officers in the other wing". It had, therefore,
struck down the impugned Notifications as violations of the Constitutional
guarantees given by Article 14 and 16(1) of the Constitution.
The learned Counsel for the State of Mysore
firsly, that the petitioners, now respondents
before us, were never promoted or appointed to offices held by them under the
rules of 1959 so that they could not complain of denial of equality of
promotional chances; and, secondly, that the amendments made retrospectively in
the rules in 1967, justifying the differences of promotional chances between
the two wings of the same service, were perfectly legal and bore a rational
nexus to the object of the differences made.
So far as the first contention is concerned,
we are unable to entertain it for the first time in this Court. We do not find
any indication that the point, even if such a position was taken on behalf of
the State, was argued at all before the Mysore High Court. The submission that
the High Court had wrongly proceeded on the assumption that the petitioners
were promoted and appointed under the rules of the integrated service although
the point was ,argued before the Mysore High Court, is not borne out even by
any assertion in the application made by the appellant under Article 1 3 2 and
1 3 3 ( 1 ) (c) of the Constitution of India before the Mysore High Court. Our
attention was invited to a paragraph in that application where it was submitted
that the "High Court should have held" that the answering respondents
were placed "in independent charge of the duties of Assistant Commissioner
without conferring any right of benefit of promotion" But, this submission
does not appear to us to meet the objection that the point was not urged, when
the petitions were argued before the High Court, and the petitioners were not
entitled to the benefit of the Rules of 1959 on the ground that they were not
promoted to the posts held by them in the service. It is a well recognised
practice of this Court not to allow new points to be raised for the first lime
'in this Court particularly when they involve investigation of questions of
fact We, therefore, do not propose to deal with a controversy which does not
arise for consideration before us.
The question which remains for consideration
by us is the one relating to the validity of a division into two classes of members
of the same service, belonging to the same cadres, for 579 purposes of a
difference to be made in their promotional chances. Learned Counsel for the
State has sought to justify this difference in promotional chances by a
reference to differences in the historical backgrounds and to the practice of
making the distinction in promotional chances.
The Mysore High Court had very rightly
observed that neither a fortuitous artificial division in the past nor the
unconstitutional practice of making an unjustifiable discrimination in
promotional chances of Government servants belonging to what was really a
single category, without any reference either to merit or seniority, or
educational qualifications, could justify the differences in promotional
chances. We think that it had rightly declared the purported amendments in the
rules of 1959, which sought to disintegrate a service which had been
integrated, to be ultra vires. Such amendments made for the purpose of
justifying the illegal promotions made, in the teeth of the protection
conferred by Articles 14 and 16(1) of the Constitution of India upon Indian
citizens in Government service, could not be upheld. , The High Court rightly
relied on State of Mysore v. Padmanabhacharya(1) to hold that the power of
making rules relating to recruitment and conditions of service under the
proviso to Article 309 could not be used to validate unconstitutional
discrimination in promotional chances of Government servants who belong to the
same category. It must be understood that a Government servant whose case is
considered for promotion but who fails to be selected on an application of just
and reasonable criteria, such as that found in the merit-cum-seniority rule
found in the Rules of 1959, cannot complain of discrimination. But, what the
petitioners had complained of and established was that their cases for
promotion were not considered at all under these Rules on the false premise
that they belong to a class which disables them from obtaining equal
consideration for promotion to the offices to which they considered themselves
entitled. The effect of the order of the Mysore High Court was only that cases
of the petitioners, now respondents before us, will be considered, in
accordance with Rules of 1959, in preparing the seniority list on
merit-cum-seniority basis. All that the order of the High Court enjoins is that
the petitioners before it must not be ignored simply on the assumption that the
source of their initial recruitment debars the consideration of their merits
Learned Counsel for the State of Mysore had
attempted to rely strongly on Ram Lal Wadhwa & Anr. v. The State of Haryana
& Ors. (2) and S. C. Jaisinghani v. Union of India (3). In Ram lal Wadhwa's
case (supra), the majority of learned Judges of this (1) A.I.R. 1966 S.C. 602.
(2) A.I.R. 1972 S.C. 1982.
(3) (1967) 2 S.C.R. 703.
580 Court had reached the, conclusion that
the historical and other special reasons existing, on the facts of that
particular case, justified the difference made in promotional chances of the
teachers coming from two different sources. We think that Wadhwa's case was
decided on its own facts, the most important of which was that, after full
consideration of the pros and cons of various alternatives before it, the
Government concerned had come to the conclusion that the provincialised cadre
must be gradually and not suddenly eliminated. In that case, there was no
actual formal decision to integrate the two branches -as is the case before us.
The rules before us levy no doubt whatsoever, as we have already pointed out,
that a complete integration of the service whose members came originally from
two sources had been actually accomplished.
That was not the position in Wadhwa's case
which could not, therefore, help the appellant.
Similarly, Jaisinghani's case (supra) was
also distinguishable, as it has been rightly distinguished by the Mysore High
Court, on facts of that particular case. Their quotas for promotion had been fixed
by the Government in exercise of a statutory power on rational and reasonable
criteria. In the case before us, the amendments in existing rules were sought
to be made for the purpose of validating what, as the Mysore High Court had
rightly held, were violations of Articles 14 and 16 of the Constitution.
Other cases mentioned by the Mysore High
Court i.e. State of Punjab v. Joginder Singh(1) and K. M. Bakshi v. Union of
India (2 ) also show that inequality of opportunity of promotion, though not
unconstitutional per se, must be _justified on the strength of rational
criteria co-related to the object for which the difference is made. In the case
of Government servants, the object of such a difference must be presumed to be
a selection of the most competent from amongst those possessing qualifications
and backgrounds entitling them to be considered as members of one class. In
some cases, quotas may have to be fixed 'between what are different classes or
sources for promotion on grounds of public policy. If, on the facts of a
particular case, the classes to be considered are reality different, inequality
of opportunity in promotional chances may be justifiable.
On the contrary, if the facts of a particular
case disclose no such rational distinction between members of what is found to
be really a single class no class distinctions can be made in selecting the
best. Articles 14 and 16 (1) of the Constitution must be held to be violated
when members of one class ire not even considered for promotion. The case before
us falls, in our opinion, in the latter type of cases where the, difference in
promotional opportunities of those who were wrongly divided into (1) A.I.R.
1963 S. C. 913.
(2)  SUPP. 2 S. C. R. 169.
581 two classes for this purpose only could
not be justified on any rational grounds. Learned Counsel for the State was
unable to indicate any such ground to us. We, therefore, think that the Mysore
High Court rightly held that the impugned notifications were unconstitutional.
Consequently, we dismiss these appeals with
one set of costs.