State of Gujarat Vs. C. G. Desai &
Ors  INSC 206 (13 November 1973)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 246 1974 SCR (2) 255 1974
SCC (1) 188
R 1980 SC1185 (1,5) R 1987 SC 424 (22) R 1987
SC1676 (27) D 1990 SC1607 (17)
Engineering Service-Bombay Engineering
Service Rules, 1960--Rule 7(ii)-Direct recruits demanded their preselection
service counted for the purpose of promotion If permissible-Whether Art. 16 of
the Constitution violated.
Respondent No. 1 was officiating as Deputy
Engineer from May 16, 1955 to December 3, 1959 in the P.W.D. of the then State
of Bombay. Thereafter, he was selected by competitive examination and appointed
to a post in B.S.F. Class-11 Service. Under the Engineering Service Rules,
1960, a direct recruit is required to undergo training for one year and
thereafter to work on probation for another year as incharge of a sub-division.
Since respondent No. 1 had already worked as officiating Deputy Engineer, the
initial period of one year's training was dispensed with and he was directly
placed in-charge of a subdivision. After completion of 2 years, he was
confirmed as Deputy Engineer in Class-11 from December 3, 1961.
In June 1961. the Committee appointed to
prepare t select list of Deputy Engineers for promotion as officiating
Executive Engineers, did not consider respondent No. 1 for promotion because he
had not put in 7 years (reduced to 6 years in 1961) service requisite under
rule 7(ii) for such promotion. The Government's stand was that the service
rendered by the direct recruits prior to their appointment to Class-11 could
not be taken into account in computing their eligibility service of 7 years.
The case of respondent no. 1 was that under the Rules, his preselection service
(from 16-5-1955 to 2-12-1959), must be tacked on to his past-selection service
for calculating the requisite period of his eligibility service.
In the case of respondents Nos. 2 and 3 also.
the Government did not count the period of their pre-selection service for the
purpose of their eligibility services and hence the dispute.
The High Court found that the differentiation
made by the Government in the application of the rules, had no reasonable nexus
with the object of promotion and the action of the Government was
discriminatory and so violative of Art. 16 of the Constitution. On appeal, the
question for consideration was whether the action of the State Government in
treating 'differently' the promoters and direct recruits in Class-11 for the
purpose of computing the period of their eligibility service requisite for
promotion as officiating Executive Engineers, violates the constitutional
guarantee of equal treatment enshrined in Art. 16 of the Constitution.
Allowing the appeal,
HELD (i) It is manifest that direct recruits
and promotees in class constitute two distinct groups or classes. This
classification has a historical background and a rational basis. The promotees
from the lower ranks have only one chance of getting into Class-11 service, as
against three available to the direct recruits. Further, for a considerable
time, recruitment by promotion from the ranks of temporary officiating Deputy
Engineers etc., to Class-11 service remained frozen with consequent stagnation
and loss of incentive in the service' At the time of their entry into Class-11
service, the promotees are, broadly speaking, far older than the direct
recruits, and many of the promotees may have less than 7 years to go before
attaining the age of superannuation. If in the case of both these groups of
promotees and direct recruits with different backgrounds and dissimilar
circumstances, the period of 7 years eligibility service were to start from the
date of their absorption in Class-III then for most of the promotees, there
would be a rare chance of ever getting promotion as officiating Executive
Engineers. The classification is thus based on intelligible differential.
256 (ii)If a person, like any of the
respondents, to avoid the long tortuous wait leave his position in the
"never ending" queue of temporary officiating Deputy Engineers etc.,
looking for promotion and takes a short-cut through the direct channel to Class
11 service he gives up once for all, the advantages and disadvantages that go
with the channel of promotion and accepts all the handicaps and benefits which
attach to the group of direct recruits. He cannot, after his direct
recruitment, claim the benefit of his preselection service and thus have best
of both the worlds. It is well settled that so long as the classification is
reasonable and the persons falling in the same class are treated alike, there
is no question of violation of the constitutional guarantee of equal treatment.
[261D] Gangaram v. Union of India,  3 S.C.R. 481, referred to.
(iii) The select list is prepared on the
basis of 'seniority-cum-merit' and the inter-se seniority of the selected
officers in the lower ranks is ordinarily to be maintained in the promoted
ranks. Acceptance of the respondent's contention will make the smooth working
and uniform application of this principle of seniority-cummerit difficult. The
inter-se seniority of the selected officers will be seriously disturbed and the
Department will be faced with the anomalous situation of ajunior officer, with
preselection service, becoming eligible to be considered for promotion over the
head of his seniors. even in the same group, having no such fortuitous
pre-selection service to their credit. There is nothing in rule 7(ii) which
compels the interpretation that in the case of direct recruits also.
their pre-selection service as officiating
Deputy Engineers, if any, should be counted towards their "eligibility
service". Such an interpretation would create two classes even amongst
direct recruits and thus result in inequality of treatment rather than in
removing it. Under the circumstances, it cannot be said that the respondents
possessed the required length of service in Class-11 to be entitled to
promotion along with others. [262C] Prabhakar Yeshwant Joshi v. State of
Maharashtra,  2 S.C. referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2170 of 1970.
Appeal by special leave from the judgment and
order dated 1/2-5-69 of the Gujarat High Court at Ahmedabad in Special Civil
Application No. 1221 of 1968.
M. C. Bhandare and S. P. Nayor, for the
Y. S. Chitale, V. N. Ganpule and P. C. Kapur,
for the respondents.
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by special leave by the State is directed against the
judgment and order, dated November 24, 1970, of the High Court of Gujarat
allowing a writ petition of (1) C. G. Desai; (2) B. L. Joshi and (3) H. N. Shah
filed under Article 226 of the Constitution. The material facts are not in
dispute and may now be stated Respondent No. 1 herein (original petitioner No.
1) was officiating' as Deputy Engineer since May 16, 1955, in the P.W.D.
Department of the then State of Bombay and he continued in service as such
until on December 3, 1959, he was selected and appointed as a result of thE
competitive examination held by the Public Service Commission, to a post in
B.S.E. Class 11 Service. Under the Engineering Service Rules, 1960 (hereinafter
called 1960 Rules), a direct recruit is required to undergo training for a
period not exceeding one year and thereafter to work on probation as in-charge
of a Sub-Division for a further period of one year. Since Respondent No. 1 had
already worked as officiating 257 Deputy Engineer, the initial period of one
year's training in his case was dispensed with and he was directly placed
in-charge of a Sub-Division. On completion of his two years' probation he was
confirmed as Deputy Engineer in Class 11 with effect from December 3, 1961.
Sometime in June, 1961, a Committee appointed by the State Government prepared
a select-list of Deputy Engineers for promotion as officiating Executive
Engineers; but the case of Respondent No. 1 was not considered for the reason
that he had not put in 7 years (reduced to 6 years in 1961) service requisite
under Rule 7(ii) for such promotion (hereinafter, for short, called eligibility
service'). The Government's stand was that in the case of Deputy Engineers
directly recruited through a competitive examination held by the Public Service
Commission, service, if any, rendered by them as officiating Deputy Engineers
prior to their appointment to Class 11 (hereafter called 'pre-selection
service') could not be taken into account in computing their eligibility
The case of Respondent No. 1 herein was that
this stand of the Government was wrong and, under the relevant Rules his
pre-selection service (from 16-5-1955 to 2-12-1959) as officiating Deputy
Engineer had to be tacked on to his postselection service for calculating the
requisite period of his eligibility service. When the next select-list was
prepared in the year 1963, Respondent No. 1 was included in that list and, in
consequence, promoted as officiating Executive Engineer. Since then he has been
working as such in the promoted rank.
Respondents Nos. 2 and 3 herein (original
petitioners Nos. 2 and 3) were promoted as Deputy Engineers on July 8. 1957,
and September 28, 1957, respectively. They continued to Work in the at capacity
till December 3, 1959, when they, too like Respondent No. 1 were directly recruited
as Deputy Engineers in Class 11 Service as a result of the competitive
examination held by the public Service Commission. On completion of their
probationary period of two years, they were confirmed as Deputy Engineers on
December 3, 1961. In their case, also, the Government did not count their
pre-selection service from July 8, 1957 to December 3, 1959 for computing their
eligibility service, for further promotion; and, in consequence, they were also
not considered eligible for selection at the time of the preparation of the
select-lists of 1961,1963 and for the subsequent years upto 1966. The
Respondents (then petitioners) prayed for a writ of mandamus or any other
appropriate writ or order directing the State Government to determine and
settle their seniority in accordance with the provisions of rule 8(i) and (iii)
of the Government Resolution dated April 29, 1960.
The main ground taken in the petition before
the High Court, was, that the action of the Government in excluding from
computation the service rendered by the Respondents as officiating Deputy
Engineers prior to their selection as Deputy Engineers Class 11 Service, was
violative of Article 16 of the Constitution of India. The contention was that
the rule of eligibility for promotion had not been uniformly applied to all
Deputy Engineers inasmuch as in the case of persons Who were recruited to Class
11 by promotion, their pre-selection service as Officiating or Temporary Deputy
Engineers was computed towards their eligibility service but the same treatment
was denied to Deputy Engineers directly recruited.
258 In the counter filed on behalf of the
State, it was averred that this distinction between the direct recruits and
promoters in computing their eligibility service for further promotion was
observed as a matter of deliberate policy. It was added that at the time of the
preparation of the select list of Deputy Engineers fit to be promoted as
Executive Engineers in 1965, the claims of officiating Deputy Engineers
appointed subsequent to 1111956, were not considered;
while the claims of directly recruited Deputy
Engineers though appointed after November 1, 1956, were so considered because
of the special provision for the latter category of Deputy Engineers as per
Government Resolution, dated 29th April, 1960. The Government therefore, felt
that as the direct recruits were getting special treatment because of being
direct recruits, they should not be allowed a further advantage of counting,
for the purpose of further promotion, their pre-selection service towards the
period of their eligibility service.
The High Court found that the differentiation
in question made by the Government in the application of the Rules, had no
reasonable nexus with the object of Promotion; and the action of the Government
was therefore clearly discriminatory and amounted to a denial of equal
,opportunity to directly recruited Deputy Engineers like petitioners Nos. 1 to
3. In the result, the High Court allowed the application of the present
Respondents 1 to 3 and issued a writ of mandamus directing that. their case
"for promotion as officiating Executive Engineers shall be considered on
the basis that the pre-selection service rendered by them as officiating Deputy
Engineers prior to their direct recruitment as Deputy Engineers was liable to
be taken into account in counting the minimum period of seven years service
requisite for promotion as officiating Executive Engineers." In order to
appreciate the controversy, it is necessary to notice briefly the history of
these Engineering Services and the relevant rules which are appendages to
various Government Resolution passed from time to time. Originally, the
Government of Bombay in the Public Works Department passed a Resolution on
March 22, 1937, in pursuance of which Bombay Engineering Service consisting of
Class I and Class II was constituted. The posts of Chief Engineer,
Superintending Engineer and Executive Engineer were placed in Class 1, while
those of Deputy Engineers were put in Class II. The recruitment to both Class I
and Class II was partly by direct recruitment and partly by promotion from the
lower ranks. In 1939, further rules were framed under which recruitment to
Class 11 Service was to be made either:
(a) by nomination under rule 1 1 under the
guarantee given to the College of Engineering, Poona or (b) by promotion from
the (i) Subordinate Engineering Service;
(ii) Permanent and Temporary Supervisors and
(iii)Temporary Engineers appointed on annual sanction.
2 5 9 On the 27th May 1947, the Government of
Bombay withdrew its guarantee of certain appointments given to the students of
the Engineering College, Poona; and thereafter, appointed a Committee (known as
Gurjar Committee) to examine the question of recruitment to the Engineering
Services and allied matters. In the meantime, the Government of Bombay made
direct recruitment to Class I and Class II Service through competitive
examination held by the Public Service Commission.
Though the Committed made its recommendations
in 195 1, yet this provisional arrangement appears to have continued upto April
29, 1960, on which date, the Government of Bombay in the Public Works
Department passed a Resolution delineating the principles of recruitment to the
Bombay Service of Engineers, Class I and Class 11. Shortly, thereafter the
Bombay State was bifurcated; but the 1960 Rules continue to be applicable to
the Engineering Services of the new State of Gujarat, to which the Respondents
herein, were allotted.
By the Resolution of 1960, the existing Class
I and Class II Services were continued. The appointments to both these Services
are to be by direct recruitment through competitive examination held by the
Public Service Commission and also by promotion in the ratio of 75 : 25. As per
rule 2, the candidates appointed from either service have to be on probation
for a period of tWo years; in the first instance as trainees for a period not
exceeding one year, and then in a probationary capacity, in-charge of a
Sub-Division for one year more. On satisfactory completion of the period of
probation, the candidates recruited from both the Services are confirmed as
Deputy Engineers in the cadre of Class 11 or as Assistant Engineers in Class 1,
as the case may be.
The provisions of 1960 Rules material for our
purpose, are to be found in Rules 6, 7 and 8, which read thus "6(i) .. ..
(ii)For absorption into Class 1, a Class 11
Officer must be in the permanent Bombay Service of Engineers Class 11 cadre,
should have at least 15 years service to his credit in Class 11 in temporary
and permanent capacities, and should be holding an officiating divisional rank,
at the time of such absorption. On such absorption, the Class 11 Officers shall
be confirmed as Executive Engineers.
(emphasis supplied) (iii) .. .. .. .. ..
7(i) Since the percentages in the superior
posts of direct Class I recruits and promoters from Class this so be about 75
and 25, the number of promotions from Class II in any year would be about
one-third of the number of directly recruited Assistant Engineers confirmed as
Executive Engineers during that year. Recruitments in the past, have, however
been erratic and insufficient .... to Class 1.
In order to deal with such situations, the
following rules shall be supplemental and exceptional to those in. paragraph 6
above 260 (ii)As far as possible promotions as Officiating Executive Engineers
shall be so made that the promote under consideration from Class 11 has to his
credit at least 6 years longer service than a promote under consideration from
Class 1, subject as far as practicable, to the condition that a Class I Officer
shall not hold a divisional rank at less than 4, and, a Class II Officer at
less than 7 years' service.
(emphasis supplied) Subject to
availabilities, and the above, criteria, an attempt should be made to maintain
the percentages, stated in paragraph 6(i) above, between direct Class I and
promoted Class II Officers in the total of permanent plus officiating superior
(iii) and (iv) .. .. ..
8(i) The Sub-Divisional Posts in the
Department are at present, manned by direct recruits to Bombay Service of
Engineers Class II Cadre, Deputy Engineers confirmed from subordinate service
of Engineers, the temporary Deputy Engineers recruited by the Bombay Public
Service Commission, Officiating Engineers and similar other categories. These
various categories are being compiled into two lists only, (i) Bombay Service
of Engineers Class 11 cadre of permanent Deputy Engineers and a List of
officiating Deputy Engineers ....
(ii)All direct recruitment of temporary
Deputy Engineers have been stopped, further officiating vacancies will be
manned from the rank of the subordinate Service of Engineers.........
The question that falls for decision is :
Whether the action of the State Government in treating "differently"
the promotees and direct recruits in Class 11, for the purpose of computing the
period of their eligibility service requisite for promotion as Officiating
Executive Engineers, violates the constitutional guarantee of equal treatment
enshrined in Article 16 of the Constitution ? Mr. Bhandare, learned Counsel for
the appellant has in the course of his elaborate arguments stressed these
(1)The two channels of promotion of direct
recruits and promotees are separate and there would be no violation of Article
16, if these two classes continue to be treated differently;
(2)It would be open to the Government to lay
down and accept different conditions for these two classes in the matter of
their further promotion to Class I Service;
(3)Since all the direct recruits constitute
one class, it is not permissible to the Government to treat the members of the
same class differently and to make a distinction in the matter of their
promotion by taking into account the pre-selection service of an officer when he
was not a direct recruit in Class II. To do so, would be to give an undue
advantage to a 2 61 direct recruit with pre-selection service over his
colleagues who did not have such preselection service to their credit.
Learned Counsel further urged that there
existed a rational basis for this classification and differential treatment of
direct recruits and promotees in the matter of their promotion to Class 1.
Reliance, has been placed on two decisions of this Court in Prabhakar Yeshwant
Joshi and or s. v. The State of Maharashtra and Ors. (1) and Ganga Rain and
Ors. v. Union of India and Ors.(2). We shall presently examine the effect of
Mr. Chitley, learned Counsel for the
respondents maintained, in reply, that rule 7(ii) does not permit discrimination
between promotees and direct recruits in the matter of computing the seven
years' service as Deputy Engineer requisite for further promotion as
Officiating Executive Engineer. The point sought to be made out is that rule is
correctly interpreted and uniformly applied, then direct recruits cannot be
denied the advantage of tacking their pre-selection s if any, to their
'post-selection service in Class II.
After hearing the learned Counsel on both
sides, we think that the' contentions of Mr. Bhandare must prevail. It is
manifest that direct recruits and promotees in Class II constitute two distinct
groups or classes. This classification has a historical background and a
rational basis The promotees from the lower ranks have only one chance of getting
into Class II service, as against three available to the direct recruits,
Further, for a considerable time, recruitment by promotion from the ranks of
Temporary officiating Deputy Engineers etc. to Class II Service remained frozen
with consequent stagnation and loss of incentive in the service. Circumstances
being what they are, promotees, at the time of their entry into Class II
Service, are, broadly speaking, far older than the direct recruits; and, many
of the promotees may have less than 7 years to go before attaining the age of
superannuation. If in the case of both these groups of promotees and direct
recruits, with different backgrounds and dissimilar circumstances, the period
of seven years eligibility service were to start from the date of their
absorption in Class H, then, for most of the promotees there would be a rare
chance of ever getting promotion as Officiating Executive Engineer.
The classification is thus based on
If a person, like any of the respondents, to
avoid the long tortuous wait leaves his position in the 'never-ending' queue of
Temporary/Officiating Deputy Engineers etc, looking for promotion, and takes a
short cut through the direct channel, to Class 11 Service, he gives up once for
all, the advantages and disadvantages that go with the channel of promotion and
accepts all the handicaps and benefits which attach to the group of direct
recruits. He cannot, after his direct recruitment claim the benefit of his preselection
service and thus have the best of both the worlds.
It is well settled that so long as the
classification is reasonable and the persons falling in the same class are
treated alike, there can be no question of violation of the constitutional
guarantee of equal treatment.
(1)  2 S.C.R. 615, (2)  3
262 As pointed out by this Court in Ganga
Ram's case (supra), in applying the wide language of Articles 14 and 16 to
concrete cases, doctrinaire approach should be avoided and the matter
considered in a practical way. If the claim of the respondents to the counting
of their pre-selection service is conceded, it will create serious
complications in running the administration; it will result in inequality of
treatment rather than in removing it. If the pre-selection service as
Officiating Deputy Engineers of direct recruits having such service, is taken
into account for the purpose of promotion, it would create two classes amongst
the same group and result in discrimination against those direct recruits who
had no such pre-selection service to their credit.
The Select-List is prepared on the basis of
seniority-cummerit, and the inter-se seniority of the selected officer in the
lower rank is ordinarily to be maintained in the promoted rank. Acceptance of
the respondents' contention will make the smooth working and uniform
application of this principle of 'seniority-cum-merit' difficult. The inter-se
seniority of the selected officers will be seriously disturbed and the
Department will be faced with the anomalous situation of a junior officer, with
pre-selection service, becoming eligible to be considered for promotion over
the head of his seniors, even in the same group, having no such fortuitous
pre-selection service to their credit.
There is nothing in rule 7 (ii) which compels
the interpretation that in the case of direct recruits, also, their
pre-selection service as Officiating Deputy Engineers, if any, should be
counted towards their 'eligiblity service'. Rule 7(ii) is silent with regard to
the method of computing the seven years period of eligibility service.
The interpretation' of this condition of
seven years service in rule 7(ii) is not res integra. It came up for
consideration before this Court in Prabhakar Yeshwant Joshi's case (supra). The
petitioners therein were also direct recruits to the posts of Deputy Engineers
Class 11. The respondents therein had entered
Class 11 Service by promotion. The petitioners challenged the promotion of the
respondents to the posts of Officiating Executive Engineers as being contrary
to the principles of natural justice and violative of Arts. 14 and 16 of the
Constitution. It was inter alia contended that under the 1960 Rules in force,
respondents2 to 5 therein were only Officiating Deputy Engineers and they had
to put in, after confirmation, as Deputy Engineers, seven years of actual
service before being eligible for promotion as Officiating Executive, Engineer.
Speaking for the Court, Jaganmohan Reddy J. negatived this contention in these
"Even this rule 7(ii) does not indicate
that the qualifying service of either of six years or of 7 years specified in
the rule has to be permanent service. In cl. (ii) of r. 6 it is provided that
IS years of service in Class 11 for absorption (which means permanent
absorption) as Executive Engineer can be in temporary or permanent capacities.
There is nothing in r.(ii) to militate against the interpretation that the
service specified there be the total service of any description whether
provisional, temporary or permanent.
If promotion from Class 11 as officiating
Executive Engineer can only 263 be made after 7. years of permanent service,
then there would be no meaning in including the temporary service in Class If
for the purpose of absorption as Executive Engineer.
Even r.6 upon which Shri Gupta has laid great
emphasis in support of his contention, does not, in our view, justify an
interpretation that 7 years' service required to entitle persons in Class II
for promotion as an officiating Executive Engineer should be permanent service
in Class I............
(within brackets ours) As we have seen
earlier, (ii) of r. 7 does not use the word 'belong' but requires only that the
person under consideration for promotion should be from Class II service. To be
in Class II service the Deputy Engineer promoted from subordinate service has
to put in at least 3 years of service as officiating Deputy Engineer before
being confirmed and thereafter he can when he is promoted to the next higher
rank be confirmed as Executive Engineer if he has put in 15 years in Class II
service in temporary or permanent capacities and is holding an officiating
divisional rank namely of an Executive Engineer. If temporary service can be
taken into account for confirmation as an Executive Engineer, so can
officiating service, and if, officiating service can be taken into
consideration, there is no impediment to a Deputy Engineer with 7 years'
service whether officiating, temporary or permanent, to entitle him for
promotion as an Executive Engineer.......
We cannot, therefore, accept the contention
of Shri Gupta that a promotee officiating Deputy Engineer Class II is not
entitled to be considered for promotion under r.7 to the post of, an
officiating Executive Engineer unless he has put in 7 years of service from the
date of confirmation." What is quoted above, no doubt, pertains to the
case of promotees, with which the Bench was mainly concerned. But the
observations in the penultimate paragraph of the judgment excerpted below,
incidentally cover the issue now before us:
"None of the petitioners, it is averred,
was included in the Select List of 1964 or 1965 because not only did any of
them not have the requisite seven years, service as Deputy Engineer at the
The petitioners however denied in their
rejoinder that "he lists were prepared keeping the criteria laid down by
the rules, but in our view, it is significant that they did not possess the
required length of service in Class II for them to be entitled to promotion
when the respondents were included in the list and promoted.: as such they
cannot challenge the appointments made as' being in violation of Art. 14 or
16." (emphasis supplied) 522SCI/74 264
In the light of the above discussion, we are of the opinion that the learned
Judges of the High Court were in error in holding that the impugned action of
the Government suffered from the vice of discrimination and as such was
violative of Art. 16 of the Constitution. We, therefore, allow this appeal, set
aside the judgment of the High Court and dismiss the writ petition, leaving the
parties, in the circumstances to their own costs.