State of Jammu & Kashmir Vs.
Triloki Nath Khosa & Ors [1973] INSC 180 (26 September 1973)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
RAY, A.N. (CJ) PALEKAR, D.G.
CHANDRACHUD, Y.V.
BHAGWATI, P.N.
CITATION: 1974 AIR 1 1974 SCR (1) 771 1974
SCC (1) 19
CITATOR INFO :
F 1974 SC1631 (26,28) F 1974 SC1755 (25) F
1976 SC 490 (37,57,58,108,180,184,208,212, R 1978 SC 327 (7,8) R 1978 SC 771
(43) R 1979 SC 478 (121) RF 1979 SC 765 (15) D 1979 SC1060 (19,21,25,26) R 1980
SC 452 (57,59,69) E 1980 SC 820 (33) RF 1981 SC 41 (6) RF 1981 SC1041 (11) R
1981 SC1829 (35) D 1985 SC 306 (7) D 1985 SC1495 (133) F 1986 SC 737 (17) R
1987 SC 415 (16) D 1987 SC1676 (16,22) D 1987 SC2348 (3) RF 1989 SC 307 (5,68)
F 1989 SC1256 (8) F 1989 SC1308 (7) D 1989 SC1624 (11) D 1989 SC1713 (10) RF 1991
SC 79 (25) R 1992 SC 1 (122)
ACT:
Constitution of India, 1950, Articles 14,
16--Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules,
1970--Persons appointed directly and by promotion integrated into common class
of Assistant Engineers--If for purpose of promotion as Executive Engineers they
could be classified on the basis of educational qualifications--Classification
if violative of articles 14 and 16.
HEADNOTE:
Under the Recruitment Rules of 1939,
recruitment to the cadre of Assistant Engineers in the Jammu and Kashmir
Engineering Service was to be made by direct recruitment of degree holders in
Civil Engineering or by transfer of degree or Diploma holders who have served
as Supervisor for a period of not less than 5 years. The rules further provided
that appointments by transfer (that is by promotion) to the cadre of Executive
Engineers could be made only from the cadre of Assistant Engineers on the basis
of merit, ability and the previous record of the candidates. The Jammu and
Kashmir Engineering (Gazetted) Service Recruitment Rules, 1970, provided that
recruitment to the post of Executive Engineers and above was to be made only by
promotion. And, as regards promotion to the post of Executive Engineers, and to
those only, it was provided that only those Assistant Engineers who possessed a
degree in Engineering would be eligible for promotion. Diploma holders in
Engineering, like the respondents, were thus rendered ineligible for promotion
as Executive Engineers. The respondents challenged the constitutionality of the
Rule. The classification, according to the appellants, was made with a view to
achieving administrative efficiency in the Engineering Service. The High Court,
took the view that the impugned Rule was violative of articles 14 and 16 of the
Constitution.
In appeal to this Court it was contended on
behalf of the State that it is always open to the Government to classify its
employees so long as the classification is reasonable and has nexus with the
object thereto; that if there are different sources of recruitment, the
employees recruited from different sources can either be allowed different
conditions of Services and so continue to belong 'to different classes or the
Government may integrate them into one class; that once the employees are
integrated into one class they cannot for the purposes of promotion, be
classified again into two different classes on the basis of differences
existing at the time of recruitment; but, after integration into one class, the
employees can, in the matter of promotion be classified into different classes
on the basis of any intelligible differentia as, for example, educational
qualifications, which has a nexus with the object of the classification.
namely, efficiency in the post of promotion. The respondents urged that the
Rules of 1939 did not make any distinction between diploma-holders and
degree-holders; that the rules governing conditions of Service could not be
changed retrospectively to classify employees on the basis of educational qualifications
so as to deny promotion to the diploma-holders; that having regard to the fact
that from 1939 to 1970 holders of diploma and degree were treated alike, the
onus lay heavily on the appellants to prove the necessity for differentiating
between the two, which onus was not discharged on the record of the cases; that
there was no nexus between the classification and the objects to be achieved
thereby and in fact the classification defeated that object; that if chances of
promotion were denied to a few within a class of equals, there was an inherent
vice attaching to the classification and no question of reasonableness of the
new yardstick could possibly arise; that the unreasonableness of the
classification was patent from the fact that a degree qualification was
considered as a pre-condition for the promotion to the posts of Executive
Engineers but not to higher posts; and 772 that if persons recruited from
different sources were integrated into one class, they could not thereafter be
classified so as to permit in. favour of some of them a preferential treatment
as against others.
HELD : Though persons appointed directly and
by promotion were integrated into a common class of Assistant Engineers, they
could for purposes of promotion to the cadre of Executive Engineers be
classified on the basis of educational qualifications. The rule providing that
graduates shall be eligible for such promotion to the exclusion of diploma
holders does not violate articles 14 and 16 of the Constitution.
(i) it is wrong to characterise the operation
of a Service rule as retrospective for the reason that it applies to existing
employees. A rule which classifies such employees for promotional purposes,
undoubtedly operates on those who entered service before the framing of the rule
but it operates in future in the sense that it governs the future right of
promotion of those who are already in service. It is well settled that a
Government servant acquires a I status' on appointment to his office and as a
result his rights and obligations are liable to be determined under statutory
or Constitutional authority which for its exercise requires no reciprocal
consent. [779 E] (ii) It is no part of the appellant's burden to justify the
classification or to establish its constitutionality. A classification founded
on variant educational qualifications is, for purposes of promotion to the post
of a Executive Engineer, to say the least, not unjust on the face of it and the
onus therefore-cannot shift from where it originally lay. [780 G) Shri Ram
Krishan Dalmia v. Justice S. R. Tendolkar & Ors.[1959] S.C.R. 279, 297;
State of Uttar Pradesh v.Kartar Singh [1964] 6S. C. R. 679, 687 and G. D.
Kerkar v.Chief Controller of Imports and Exports [1967] 2 S.C.R. 29, 34,
referred to.
(iii) Classification is primarily for the
legislature or for the statutory authority charged with the duty of framing the
terms and conditions of service; and if, looked at from the standpoint of the
authority making it, the classification is found to rest on a reasonable basis,
it has to be upheld. Discrimination is the essence of classification and does
violence to the constitutional guarantee of equality only if it rests on an
unreasonable basis. [781 C] (iv) There is no justification for the respondent's
plea that the record does not disclose the necessity for the impugned rule of
1970. The records show that till about 1968 there was a dearth of Engineering
graduates. In 1962 the ratio between graduates and diploma holders was 1 : 2
and in 1968 it became almost 2 : 1 and in 1970 the position remained more or
less unchanged. The appellants were entitled to take into account this spurt in
the availability of persons with higher educational qualifications for manning
the next higher post of promotion. Further, it cannot be overlooked that even
under the recruitment rules of 1939 graduates in Civil Engineering were alone
eligible for direct recruitment as Assistant Engineers in the Kashmir
Engineering Service. [783 B] (v) The argument that if the nature of duties and
responsibilities of the post of Executive Engineer has undergone no significant
change, there would be no justification for restricting the field of choice to
graduates assumes in the Court a right of scrutiny somewhat wider than is
generally recognised. The concept of equality has an inherent limitation
arising from the very nature of the constitutional guarantee. Equality is for
equals. That is to say, those who are similarly circumstanced are entitled to
an equal treatment.
Classification, however, is fraught with the
danger that it may produce artificial inequalities and therefore, the right to
classify is hedged in with salient restraints; or else, the guarantee of
equality will be submerged in class legislation masquerading as laws meant to
govern well-marked classes characterized by different and distinct attainments.
Classification, therefore, must be 7 7 3
truly founded on substantial differences which distinguish persons grouped
together from those left out of the group and such differential attributes must
bear a just and rational relation to the object sought to be achieved.
Judicial scrutiny can therefore extend only
to the consideration whether the classification rests on a reasonable basis and
whether it bears nexus with the object in view. It cannot extend to embaring
upon a nice or mathematical evaluation of the basis of classification, for,
were such an inquiry permissible, it would be open to the courts to substitute
their own judgment for that of the legislature or the rule-making authority on
the need to classify or the desirability of achieving a particular object. [784
A-C] (vi) So judged, the classification of Assistant Engineers into degree
holders and diploma holders cannot be said to rest on any unreal or
unreasonable basis. If the classification was made with a view to achieving
administrative efficiency in the Engineering Service, the classification is
clearly correlated, to it, for, higher educational qualifications are at least
presumptive evidence of a higher mental equipment. On the facts of the case the
classification cannot be said to rest on any fortuitous circumstances.
educational qualifications have been recognised by this Court as a safe
criteria for determining the validity of classification. [784 D; 785 E] State
of Mysore & Anr. v. P. Narasing Rao, [1968] 1 S.C.R.
407, and The Union of India v. Dr. (Mrs.) S.
B. Kholi, A.I.R. 1973 S.C. 811, 813.
(vii) The seniority list of January 1, 1971
shows how unreal the argument is that the qualification rule not having been
extended to the higher echelons of service, it can bear no nexus with the
attainment of administrative efficiency in a comparatively lower hierarchy of
Assistant Engineers. Dealing with practical exigencies, a rule making authority
may be guided by the realities of life, just ,is the legislature, while making
a classification, "is free to recognize degrees of harm and it may confine
its restrictions to those classes of cases where the need is deemed to be the
clearest." if the law presumably hits the evil where it is most felt, it
is not to be overthrown because there are other instances to which it might
have been applied, [785 C, G] Bain Peanut Co. v. Pinson 75 L. ed. 482, 489,
Miller v.Wilson, 59 L.ed. 632 and Keekee Gonsol, Coke Co. v. Taylor 58 L.ed.
1288, 1289.
(viii) This Court's decision in Roshan Lal's
case is no authority for the proposition that if direct recruits and promotees
are integrated into one class, they cannot be classified for purposes of
promotion on a basis other than the one that they were drawn from different'
sources. All that Roshan Lal's case lays down is that direct recruits and
promotees lose their birthmarks on fusion into a common stream of service and
they cannot thereafter be treated differently by reference to the consideration
that they were recruited from different sources. Their genetic blemishes
disappear once they are integrated into a common class and cannot be revived so
as to make equals unequals once again. In the instant case classification rests
fairly and squarely on the consideration of educational qualifications :
Graduates alone shall go into higher post, no matter'whether they were
appointed 'as Assistant Engineers directly or by promotion.
The discrimination, therefore, is not in
relation to the source of recruitment as in Roshan Lal's case. [789 C] Roshan
Lal Tandon v. Union of India, [1968] 1 S.C.R. 185, Mervyn Coutindo & Ors.
v. Collector of Customs, Bombay & Ors., [1966] 3 S.C.R. 600) and S. M.
Pandit v. State of Gujarat, A.I.R. 1972 S.C. 252, explained and held inapplicable.
The Court emphasized the necessity of
adopting a pragmatic approach in order to harmonize the recruitments of public
service with the aspirations of public servants and cautioned against evolving,
through imperceptible exten7 74 sions, a theory of classification which may
subvert, perhaps submerge, the previous guarantee of equality.1 [790 G] Per
Bhagwati and Krishna Iyer, JJ : (concurring); (i) The proposition that all men
are equal has working limitations, since absolute equality leads to procrustean
cruelty. An imaginative and constructive modus, vivendi between commonness and
excellence must be forged to make the equality clauses viable. The social
meaning of articles 14 to 16 is neither dull uniformity nor specious
'talentism'.
it is a process of producing quality out of
larger areas of equality extending better facilities to the latent capabilities
of the lowly. [791 B-C] ii) In the present case, in the past decades, few
Engineering graduates in the State and few Engineering Colleges in the country compelled
Government to recruit diploma holders and promote them to higher offices. But
circumstances have changed, needs have increased, availabilities have expanded
and inequalities at the educational level have been partly eliminated. And so
personnel policy, with an eye on efficiency have changed.
[791 G-H] (iii) However, while striking a
balance between the long hunger for equal chance of the lowlier and the
disturbing concern of the community for higher standards of performance, the
State should not jettison the germinal principle of equality alto,-ether. The
dilemma of democracy is as to how to avoid validating the abolition of the
difference between the good and the bad in the name of equality and putting to
sleep the constitutional command for expanding the areas of equal treatment for
the weaker ones with the dope of 'special qualifications' measured by expensive
and exotie degrees. These are perhaps metajudicial matters left to the other
branches of Government, but the Court must hold the Executive within the
leading strings of egalitarian constitutionalism and correct, by judicial
review, episodes of subtle and shady classification grossly violative of equal
justice. That is the heart of the matter. That is the note that rings through
the first three fundamental rights the people -have given to themselves. [792
B]
ORIGINAL JURISDICTION:
The judgment of A. N. RAY, C. J. D. G.
PALEKAR and Y. V. CHANDRACHUD J.J. was delivered by Chandrachud, J. KRISHNA
IYER, J. delivered a separate concerning Opinion on behalf of Bhagwati. J. and
himself.
CHANDRACHUD, J. If persons drawn from
different sources are integrated into one class, can they' be classified for
purposes of promotion on the basis of their educational qualifications? That is
the issue for consideration before us.
Respondents, who are Diploma Holders in
Engineering, filed in the High Court of Jammu and Kashmir a petition under
article 226 of the Constitution to challenge the validity of certain Service
Rules framed by the Government of Jammu and Kashmir. A Learned single Judge
dismissed the petition but in appeal a Division Bench of the High Court took
the view that the impugned rules were violative of articles 14 and 16 of the
Constitution. The correctness of that view is -challenged by the State of Jammu
and Kashmir in this appeal by special leave.
Respondents, who are serving in different
branches Of the Engineering Service of the appellants, were appointed as
Assistant Engineers between 1960 and 1966 by promotion from the Subordinate
Engineering 77 5 Service. Their conditions of service were then governed by the
rules published under Order No. 1328-C of 1939. Those rules, to the extent
material, read thus:
The following rules prescribing the procedure
relating to recruitment to the gazetted services are sanctioned:(3) Special
qualifications.-Under rule, 18 of the Kashmir Civil Services Rules (General),
the following special qualifications are prsecribed in the case of candidates
for direct recruitment or recruitment by transfer, as the case may be, to the
services mentioned below KASHMIR ENGINEERING SERVICE Category 2 of Class II
Direct Degree in Civil Engineering (Assistant Engineer). of any recognised
university By transfer (i)Degree or Diploma in Civil Engineering of any
recognized University or Upper Subordinates Diploma of any recognised College
of Engineering and (ii)Service as a Supervisor for a period of not less than 5
years on duty.
Classlll (Ground Engineer)] Certificate of
Ground EnDirect gineering prescribed by the Government of India.
KASHMIR ELECTRICAL SERVICE Category 2 of
Class 11.Direct (i) Degree in Electrical Direct Engineering of any recognised
University, and (Assistant Electrical Engineer).
(ii)Practical training in an Electrical Power
Station.
By transfer (i) Degree or Diploma in
Electrical Engineering of any recognised University and (ii)Practical
experience in an Electric Power Station." ______________________________
The rules further provided that appointments by transfer (that is, by promotion)
to the cadre of Divisional Engineers (now known as Executive Engineers) could
be made only from the cadre of Assistant Engineers. Promotions to the cadre of
Assistant Engineers could, in turn, be made only from the cadre of Supervisors
in the Subordinate 7 76 Service. Recruitment by transfer was to be made
"on the basis of merit, ability and the previous record of the candidates,
seniority being considered only in case of equality of merit, ability and
excellence of record". The scale of pay admissible to the Assistant
Engineers was Rs.300-20-5,00.
In 1962, the appellants undertook a general
revision of pay scales and framed "Jammu and Kashmir Civil Services
(Revised Pay) Rules", which were gazetted on August 6, 1962. Rule 12
divided the Assistant Engineers into two categories, datewise. Those appointed
prior to August 1, 1960 were placed in Grade I while those, appointed
subsequently were placed in Grade 11, regardless -of whether appointments to
the posts of Assistant Engineers_were made directly or by promotion and whether
the incumbents held a degree or a diploma. Those in Grade I were put in the pay
scale of Rs.
300-700 while those in Grade II were put in
the scale of Rs. 250-600. Officers in Grade II were entitled to go into Grade I
after completing two years' service, subject to the availabilityof vacancies.
A further revision of pay scales was effected
under the "Jammu .and Kashmir Civil Services (Revised Pay) Rules,
1968" which were gazetted on February 27, 1968. Under Rule 10 (IIB) (i),
Assistant Engineers were granted a new pay scale of Rs.
300-30-540-EB-35610-QB-35-750, but it was provided that the "QB at Rs.
610/will not be crossed by Assistant Engineers with Diploma Course". This
rule was challenged by the respondents in so far as it denied to them an
opportunity to cross the qualification bar.
Then came the "Jammu and Kashmir
Engineering (Gazetted) Service Recruitment Rules, 1970", gazetted on
October 12, 1970. These rules provide for appointments to the gazetted posts in
various branches of the Engineering Service of the appellants and supersede the
old rules on the subject. By rule 3(f) 'promotion' is defined to mean promotion
from one class, category or grade to another class, category or grade on the
basis of merit and efficiency, seniority being considered only when merit was
equal. Under the Schedule annexed to these Rules, recruitment to the cadre of
Executive Engineers and above was to be made only by promotion. But as regards
promotion to the posts of Executive Engineers, and to those only, it was
provided that only those Assistant Engineers would be eligible for promotion
who possessed a bachelor's degree in engineering or held the qualification of
A-M-I.E., Section A, & B and who had put in at least 7 years service in the
J. K. Engineering (Gazetted) Service. This is the second of the two Rules
impugned in this appeal.
The case of the respondents as disclosed in
their petition was that under the, rules of 1939, Assistant Engineers were
entitled to be promoted to the higher cadre on the basis of their merit and
record and no distinction was made between degree-holders and diploma holders
for the purposes of such promotion. The discrimination made by the impugned
rules between degree-holders and diploma-holders was arbitrary and capricious
because academic or technical qualifica7 77 tions could be germane only at the
time of recruitment. For purposes of promotion, efficiency and experience alone
must count. Respondents further contended that once the Government appointed
candidates with different academic or technical qualifications to the same
cadre, having the same, pay scale and similar duties, such candidates would
form one class and they cannot be further classified for purposes of promotion
on the basis of their educational qualifications.
The, impugned rules, according to the
respondents, brought about a reduction in rank, deprived them of equal
opportunity in the matter of promotion and were violative of articles 14 and 16
of the constitution of India. Finally, the respondents contended by their
petition that it was not competent to the Government to change the service
conditions unilaterally to the disadvantage of its employees so as to deprive
them of their vested right of promotion by giving retrospective effect to the
rules.
The appellants, by their counter affidavit,
traversed these averments thus : It was within the competence of the Government
to grant a higher pay scale to persons with higher educational qualifications.
Under the Rules of 1968 a higher slab of pay was sanctioned for Assistant
Engineers with higher educational qualifications and the qualification Bar was
imposed so as to exclude diploma-holders, with a view to ensuring
administrative efficiency in the Engineering service. Under the Rules of 1970,
the Governor had laid down the method of recruitment and had prescribed
qualifications for appointment to various categories of posts in the
engineering department keeping in view the nature of duties and
responsibilities attached to those posts. Classification, for purposes of
promotion, on the basis of educational qualifications has an intelligible
differentia and was therefore not violative of the constitutional provisions of
equality. Lastly, the appellants disputed that application of the Rules to
existing employees made the Rules "retrospective" in any sense.
The learned single Judge, who heard the
petition rejected the respondents' contentions but that judgment was reversed
in appeal by a Division Bench of the High Court. Briefly, the Division Bench
held that though it was open to the Government to make a reasonable
classification of its employees, where the employees were grouped together and
integrated into one unit without reference to their qualifications, they formed
a single class in spite of initial disparity in behalf of their educational
qualifications and no discrimination could thereafter be made between them on
the basis of such qualifications; that the discrimination made under the Rules
of 1968 between diploma-holders and degree-holders was unconstitutional and
that having prescribed diploma or a degree in engineering with practical
experience as a minimum qualification for entry into service, it was not open
to the Government to prescribe higher educational qualifications for promotion
from the cadre of Assistant Engineers to that of Executive Engineers.
The main "Judgment was delivered by
Mufti Bahauddin J. who confined his view to the vice attaching to the rules by
reason of their reprospectivity. The learned Chief Justice, by a concurring 197
judgment struck down the rules for all time. They were, according to in so far
as they applied to existing employees and would be bad applied to those who
may, join the cadre in future.
The learned Attorney General, who appears on
behalf of the appellants, contends that it is always open to the Government to
classify its employees so long as the classification is reasonable and has
nexus with the object thereof; that a classification cannot be held to infringe
the equality clause unless it is actually and plapably arbitrary; that if there
are different sources of recruitment, the employees recruited from different
sources can either, be allowed different conditions of service and so continue
to. belong to different classes or the Government may integrate them into one
class; that once the employees are integrated into one class, they cannot, for
purposes of promotion, be classified again into two different classes on the
basis of differences existing at the time of recruitment; but, after
integration into one class, the employees can, in the matter of promotion, be
classified into different classes on the basis of any intelligible differentia
as, for example, educational qualifications, which has a nexus with the object
of classification, namely efficiency in the post of promotion.
Mr. Setalvad who led for the respondents
contended that neither at the time of appointment to the post of Assistant
Engineers nor for the purposes of promotion to the post of Divisional Engineers
(now called 'Executive Engineers'), was any distinction made by the rules of
1939 between diploma holders and degree-holders; that rules governing
conditions of Service could not be changed retrospectively to classify
employees on the basis of educational qualifications so as to deny promotion to
the diploma-holders; that there was in the instant case no nexus between the
classification and the object sought to be achieved thereby and in fact the
classification defeated that object; that having regard to the fact that from
1939 to 1970 holders of Diplomas and Degrees were treated alike, the onus lay
heavily on the appellants to prove the necessity for differentiating between
the two, which onus was not discharged on the record -of the case; and that, if
the object of the classification was the attainment of efficiency, the
Government could have achieved that object, and perhaps in a better measure. by
making talent, experience and efficiency as criteria for determining
promotional opportunities.
Mr. Gupte, appearing for Respondents 18 to
29, took the stand that once there is a class of equals no discrimination can
be made among them on any ground whatsoever. Therefore, if chances of promotion
are denied to a few within a class of equals, there is an inherent vice
attaching to the classification and no question of the reasonableness of the
new yardstick can possibly arise. In the alternative, Mr. Gupte contended,
possession of a degree qualification was not a reasonable basis for segregating
degree-holders and diploma-holders into water tight compartments. The impugned
rule of 1970 was made in the awareness that only some Assistant Engineers were
graduates and the facts of the case disclosed no reasonable basis for
differentiation between them and the diploma-holders in regard to promotion as
Executive Engineers. Finally, the learned counsel contended that the 779
unreasonableness of the classification was patent from the fact that a degree
qualification was prescribed as a precondition for promotion to the post of
Executive Engineers but not to higher posts. There was neither rhyme nor reason
in a rule which permitted a Diploma-holder to occupy the post of a
Superintending Engineer or the highest post of a Chief Engineer but barred him
from being considered for a lower post in the cadre of Executive Engineers.
Mr. Garg, who appears for one of the
respondents, laid particular stress on the question of onus. He contended that
the heavy onus which lay on the appellants to justify the classification
remained wholly undischarged in the context, especially, of the background that
between 1939 and 1970 holders of Degrees and Diplomas were treated alike in the
matter of promotion from the post of an Assistant Engineer to that of an
Executive Engineer. A system which had stood the test of time, could not, reasonably,
be proclaimed unworkable or inefficacious unless the entire, context and
requirements of the system had undergone some significant change. Of that, says
the counsel, there is just no evidence.
Most of the arguments advanced for the
respondents have been considered and rejected by this Court in some case or the
other but before coming to that, a few points may, be kept out of way.
An argument which found favour with Mufti
Bahauddin J.,one of the learned Judges of the Letters Patent Bench of the High
Court, and which was repeated before us is that the "retrospective"
application of the impugned rules is violative of articles 14 and 16 of the
Constitution. It is difficult to appreciate this argument and impossible to
accept it. It is wrong to characterise the operation of a service rule as
retrospective for the reason that it applies to existing employees. A rule
which classifies such employees for promotional purposes, undoubtedly operates
on those who entered service before the framing of the rule but it operates in
future, in the sense that it governs the future right of promotion of those who
are already in service. The impugned rules do not recall a promotion already
made or reduce a pay-scale already granted. They provide, for a classification by
prescribing a qualitative standard, the measure of that standard being
educational attainment. Whether a classification founded on such a
consideration suffers from a discriminatory vice is another matter which we
will presently consider but surely, the rule cannot first be assumed to be
retrospective and then be struck down for the reason that it violates the
guarantee of equal opportunity by extending its arms over the past. If rules
governing conditions of service cannot ever operate to the prejudice of those
who are already in service, the age of superannuation should have remained
immutable and schemes of compulsory retirement in public interest ought to have
foundered on the rock of retroactivity. But such is, not the implication of
'service rules nor is it their true description to say that because they affect
I existing employees they are retrospective. It is well-settled that though
employment under the Government like that under any other master may have a
contractual origin, the Government servant acquires a status' on appointment to
his office. As a result, his rights and obligations are liable to be determined
under statutory or constitutional authority which for, its exercise, requires
no reciprocal consent. The Government can alter the terms and conditions of its
employees unilaterally and though in modern times consensus in matters relating
to public services is often attempted to be achieved, consent is not a
pre-condition of the validity of rules of service, the contractual origin of the
service notwithstanding.
The argument on the question of onus is
largely founded on the context of facts obtaining in the case. It is urged that
for purposes of promotion to higher posts diploma holders were treated on par
with degree-holders from 1939 to 1970 and therefore, the onus must be on the
appellants to prove. facts and circumstances which necessitated a radical
departure from the old and established order. If diploma holders could
competently fill higher posts. for over three decades, reasons leading to the
rule which renders them wholly ineligible even from being considered for
promotion to the post of Executive Engineer ought to be established by the
appellants and, it is urged, no evidence is disclosed in support of such
reasons.
This submission is erroneous in its
formulation of a legal proposition governing onus of proof and it is
unjustified in the charge that the record discloses no evidence to show the
necessity of the new, rule. There is always a presumption in favour of the
constitutionality of an enactment and the burden is upon him who attacks it to
show that there has been a clear transgression of the constitutional principles.(1)
A rule cannot be struck down as discriminatory on any a priori reasoning.
"That where a party seeks to impeach the validity of a rule made by a
competent authority on the ground that the rules offend Art. 14 the burden is
on him to plead and prove the infirmity is too well established to need
elaboration."1 The burden thus is on the respondents to set out facts
necessary to sustain the plea of discrimination and to adduce "cogent and
convincing evidence" to prove those facts for "there is a presumption
that every factor which is relevant or material has been taken into account in
formulating the classification"(2). In G. D.
Kelkar v. Chief Controller of Imports and
Exports(?), Subba Rao C.J. speaking for the Court has cited three other
decisions of the Court in support of the proposition that "unless the
classification is unjust on the face of it, the onus lies-upon, the party
attacking the classification to show by pleading the necessary material before
the court that the said classification is unreasonable and violative of Art. 16
of the Constitution." Thus, it is no part of the appellants' burden to
justify the classification or to establish its constitutionality.
Formal education may not always produce
excellence but a classification founded on variant educational qualifications
is, for purposes of promotion to the post of an (1) Shri Ram Krishan Dalmia V.
Justice S. R. Tendolkar & Ors.(1) (1959] S. C. R. 279, 297 (b).
(2) State of Uttar Pradesh V. Kartar Singh
[1964](6)S. C.R. 679, 687.
(3) [1967] (2) S. C. R. 29, 34.
781 Executive Engineer, to say the least, not
unjust on the fact of it and the onus therefore cannot shift from where ii
originally lay.
Respondents have assailed the classification
in the clearest terms ,but their challenge is purely doctrinaire. 'Academic or
technical qualifications can be germane only at the time of initial
recruitment; for purposes of promotion, efficiency and experience alone must
count'this is the content of their challenge. The challenge, at best, reflects
the respondents' opinion on promotional opportunities in public services and
one may assume that if the roles were reversed, respondents would be interested
in implementing their point of view. But we cannot sit in appeal over the
legislative judgment with a view to finding out whether on a comparative
evaluation of rival theories touching the question of promotion, the theory
advocated by, the respondents is not to be preferred. Classification is
primarily for the legislature or for the statutory authority charged with the
duty of framing the terms and conditions of service; and if, looked at from the
standpoint of the authority making it, the classification is found to rest on a
reasonable basis, it has to be upheld.
Our reason for saying this is to emphasize
that the respondents ought to have furnished particulars as to why, according
to them, the classification between diploma holders and degree-holders is not
based on a rational consideration having nexus with the object sought to be
achieved. In order to establish that the protection of the equal opportunity
clause has been denied to them, it is not enough for the respondents to say
that they have been treated differently from others, not even enough that a
differential treatment has been accorded to them in comparison with others
similarly circumstanced. Discrimination is the essence of classification and
does violence to the constitutional guarantee of equality only if it rests on
an unreasonable basis. It was therefore incumbent on the respondents to plead
and show that the classification of Assistant Engineers into those who hold
diplomas and those who hold degrees is unreasonable and bears no rational nexus
with its purported object. Rather than do this, the respondents contented
themselves by propounding an abstract theory that educational qualifications
are germane at the stage of initial recruitment only. Omission to furnish the
necessary particulars was construed by this Court in two cases as indicating
that the plea of unlawful discrimination had no basis('). Such an infirmity in
leadings led this Court in State of Madhya Pradesh v. Bhopal Sugar Industries Ltd.
(2) to remand the matter to the High Court in order to enable the petitioner
therein to amend its petition.
Mr. Garg asked for a remand so that the
respondents could have an opportunity to plead the necessary facts but we
declined to do so as we did not propose to allow the appeal on the narrow
ground that the respondents' plea of discrimination was inadequate. Nor indeed
(1) Katra Educational Society V. State of Uttar Pradesh & Ors. 1966, (3) S.
C.R. 328, 336 and 337, Probhudas Morarjee Rajkotia & Ors. V. Union of India
& Ors., A. I. R. 1966 S.
C. 1044, 1047(2) [1964] 6. S. C. R. 846.
782 did the learned Attorney General press
for a decision on any such ,ground. We have heard the learned counsel fully on
the merits of the matter, especially as the question of onus was not presented
before the High Court in the form in which it was presented before us. We will
now advert to the merits of the other contentions.
The Proviso to Rule 10(IIB) (1) of the 1968
Rules under which Diploma-holders were debarred from crossing the Qualification
Bar placed at Rs. 610 need not detain us because the learned Attorney General
states that the Bar has since been removed with retrospective effect. The 1968
scale of pay will therefore apply equally to the degree holders and
diploma-holders in the cadre of Assistant Engineers, with effect from the date
on which the 1968 Rules came into force. Respondents, accordingly, will be
eligible to reach the ceiling of the scale regardless of the fact that they
hold a diploma and not a degree in Engineering.
The main question for decision arises out of
the challenge to the Rules of 1970 under which diploma-holders in the cadre of
Assistant Engineers are not entitled even to be considered for promotion to the
next higher cadre of Executive Engineers. Under the Schedule to those Rules,
recruitment to the cadre of executive engineers can be made only by promotion
from amongst Assistant Engineers. To that is added the impugned rider that only
those Assistant Engineers will be eligible for promotion who possess a
bachelor's Degree in Engineering or who hold the qualification of A.M.I.E.
(Section A and B) and who have.
put in at least seven years' service.
Diploma-holders in Engineering, like the respondents, are thus rendered
ineligible for promotion as Executive Engineers.
We have observed earlier while dealing with
the question of onus that there was no justification for the respondents' plea
that the record does not disclose the necessity for the impugned rule of 1970.
We will draw attention to the relevant material, which is always admissible to
show the reasons and the justification for the classification. Such reasons
need not appear on the face of the rule or law which effects the
classification(1).
The seniority list of Assistant Engineers as
of January 1, 1971 discloses a significant phenomenon. The list comprises 78
Assistant Engineers and omitting the very first amongst them who was only a
matriculate, the remaining 77 were appointed as Assistant Engineers between
October 19, 1960 and December 24, 1970. Prior to August 6, 1962 when the rules
of 1962 came into force, only 7 Assistant Engineers held an Engineering Degree
as against 13 who held a diploma.
The position on February 27, 1968 when the
rules of 1968 came into force was that the number of degree-holders had
increased to 38 while that of diploma-holders went up from 13 to 21 only. On
October 12, 1970 when the impugned rule now under consideration came into
force, there were 48 degree-holders and 26 diploma-holders in the cadre of
Assistant Engineers, excluding the last one at item No. 78 who was promoted
after the promulgation of the rules but who is (1) Shri Ram Krishan Dalmia v.
Justtice S. R. Tendolkar & Ors., [1969] S. C. R. 279, 307-8.
783 also a degree-holder. We have advisedly
taken no note of two instances in one of which the incumbent was not appointed
as a regular Assistant Engineer and the other where, though appointed, the
person concerned did not join the Department.
It is transparent from this analysis that
till about 1968 there was a dearth of Engineering graduates. In 1962, the ratio
between graduates and diploma-holders was 1 : 2. In 1968 it became almost 2 :1
and in 1970 the position remained more or less unchanged. The appellants were
entitled to take into account this spurt in the availability of persons with
higher educational qualifications for manning the next higher post of
promotion. In fact, it may not be overlooked, that even under the recruitment
rules of 1939 graduates in Civil Engineering were alone eligible for direct
appointment as Assistant Engineers in the Kashmir Engineering Service. Only
departmental promotions could be made from amongst diploma-holders and that too
if they had put in 5 years' service in the cadre of Supervisors. There is
therefore no substance in the contention that the record sheds no light on why
a change was thought necessary in a system that had stood the test of time. In
1968 itself when there was a proliferation in the ranks of graduates, an
attempt was made which was later rectified, to offer a higher incentive to
graduates by the placement of a Qualification Bar. We are not called upon to
adjudge its validity for reasons already mentioned but it is obvious that the
impact of the changing pattern had to receive its due recognition.
But then Mr, Setalvad contends that if the
nature of duties and responsibilities of the post of Executive Engineer has
undergone no significant change, there would be no justification for
restricting the field of choice to graduates. Talent and efficiency could be
found in the ranks of diploma-holders in an equal measure and it is urged that
rather than display a mere fancy for graduates and restrict its choice, the
State should have in the interest of an efficient service, laid the promotional
chances open to both the ranks on the basis of talent, experience and
efficiency.
This argument, as presented, is attractive
but it assumes in the court a right of scrutiny somewhat wider than is
generally recognized. Article 16 of the Constitution which ensures to all
citizens equality of opportunity in matters relating to employment is but an
instance or incident of the guarantee of equality contained in article 14. The
concept of equal opportunity undoubtedly permeates the whole spectrum of an
individual's employment from appointment through promotion and termination to
the payment of gratuity and pension. But the concept of equality has an
inherent limitation arising from the very nature of the constitutional
guarantee. Equality is for equals. That is to say that those who are similarly
circumstanced are entitled to an equal treatment.
Since the constitutional code of equality and
equal opportunity is a charter for equals, equality of opportunity in matters
of promotion means an equal promotional opportunity for persons who fall,
substantially, within the same class. A classification of employees can
therefore be made for first identifying and then distinguishing members of one
class from those of another.
784 Classification, however, is fraught with
the danger that it may produce artificial inequalities and therefore, the right
to classify is hedged in with salient restraints, or else, the guarantee of
equality will be submerged in class legislation in as querading as laws meant
to govern well marked classes characterized by different and distinct
attainments.
Classification, therefore, must be truly
founded on substantial differences which distinguish persons grouped together
from those left out of the group and such differential attributes must bear a
just and rational relation to the object sought to be achieved.
Judicial scrutiny can therefore extend only
to the consideration whether the classification rests on a reasonable basis
whether it bears nexus with the object in view. It cannot extend to embarking
upon a nice or mathematical evaluation of the basis of classification, for were
such an inquiry permissible it would be open to the courts to substitute their
own judgment for that of the legislature or the rulemaking authority on the
need to classify or the desirability of achieving a particular object.
Judged from this point of view, it seems to
us impossible to accept the respondents' submission that the classification of
Assistant Engineers into Degree-holders and Diploma holders rests on any unreal
or unreasonable basis. The classification, according to the appellants, was
made with a view to achieving administrative efficiency in the Engineering
services. If this be the object, the classification is clearly correlated to it
for higher educational qualifications are at least presumptive evidence of a
higher mental equipment. This is not to suggest that administrative efficiency
can be achieved only through the medium of those possessing comparatively
higher educational qualifications but that is beside the point. What is
relevant is that the object to be achieved here is not a mere pretence for an
indiscriminate imposition of inequalities and the classification cannot be
charactersized as arbitrary or absurd. That is the farthest that judicial
scrutiny can extend.
On the facts of the case, classification on
the basis of educational qualifications made with a view to achieving
administrative efficiency cannot be said to rest on any fortuitous circumstance
and one has always to bear in mind the facts and circumstances of the case in
order to judge the validity of a classification. The provision in the 1939
Rules restricting direct recruitment of Assistant Engineers to Engineering
graduates, the dearth of graduates in times past and their copious flow in
times present are all matters which can legitimately enter the judgment-of the
rule-making authority. In the light of these facts, that judgment cannot be
assailed as capricious or fanciful. Efficiency which comes in the trail of a
higher mental equipment can reasonably be attempted to be achieved by
restricting promotional opportunities to those possessing higher educational
qualifications. And we are concerned with the reasonableness of the
classification, not. with the precise accuracy of the decision to classify nor
with the question whether the classification is scientific. Such tests have
long since been discarded. In fact American decisions have gone as far as
saying that classification would offend against the 14th Amendment of 78 5 the
American Constitution only if it is "purely arbitrary, oppressive or
capricious"(') and the. inequality produced in order to encounter the
challenge of the Constitution must be "actually and palpably unreasonable
and arbitrary"(2). We need not go that far as the differences between the
two classes-graduates and Diploma-holders--furnish a reasonable basis for
separate treatment and bear a just relation to the purpose of the impugned
provision.
Educational qualifications have been
recognized by this Court as a safe criterion for determining the validity of
classification. In State of Mysore v. P. Narasing Rao (3) where the cadre of
Tracers was reorganized into two, one consisting of matriculate Tracers with a
higher scale of pay and the other of non-matriculates in a lower scale, it was
held that articles 14 and 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.
Therefore, it was open to the Government to
give preference to candidates having higher educational qualifications. In
Ganga Ram v. Union of India(4), it was observed that "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 Union of India v. Dr. (Mrs.) S. B. Kohli(5), a
Central Health Service Rule requiring that a professor in Orthopaedics must
have a post-graduate degree in the particular speciality was upheld on the
ground that the classification made on the basis of such a requirement was not
"without reference to the objectives sought to be achieved and there can
be no question of discrimination".
The argument that a degree qualification was
not the only criterion of suitability was answered laconically as
strange".
Under the Schedule to the 1970 rules, a
degree qualification is prescribed as a condition for promotion to the post of
an Executive Engineer from the cadre of Assistant Engineers.
But there is no rule requiring a similar
qualification for promotion to the post of Superintending Engineer which is
next higher to the post of Executive Engineer or for promotion to the apex post
of the Chief Engineer. The Schedule provides that recruitment to these two
categories of posts shall be made by promotion from amongst persons in cadres
next below, who possess experience for a stated number of year. This
circumstance is pressed into service by the respondents in support of their plea
that the whole basis of classification is unreal and that the true object could
not be the attainment of higher administrative efficiency. If it was thought
necessary to prescribe a Degree qualification in order to achieve efficiency in
the post of Executive Engineers, ex (1) Joseph Radice v. People of the State of
New York, 68 L.
Ed. 690, 695, American Sugar Ref. Co. v.
Louisiana, 45 L.
EL]. 102,103.
(2) 68 L. Ed. 690, 695; Arkansas Natural Gas
Co. v, Railroad Commission 67 L. Ed. 705, 710.
(3) [1968] (1) S. C. R. 407. State of Mysore
& Anr. vs.
P. Narasing Rao.
(4) (1970] (3) S. C. R. 481, 488.
(5) A. I. R. 1973 S. C. 811, 813.
786 hopothesi it should have been equally
imperative, if not more to pro vide for a similar condition in regard to
promotion to higher posts thus runs the argument.
This argument means that any service reform
must embrace every hierarchy or none at all. It is often impossible or at any
rate inexpedient to reach and remedy all forms of evil, wherever present.
Reform must begin somewhere if it has to begin at all and therefore, the
administrator who has nice and complex problems to solve, must be allowed the,
freedom to proceed tentatively, step by step. Justice Holmes gave in a similar
context a significant warning that : "We must remember that the machinery
of Government would not work if it were not allowed a little play in its
joints".(') The seniority list of January 1, 1971 shows how very unreal
the argument is that the qualification rule not having been extended to the
higher echelons of service, it can bear no nexus with the attainment of
administrative efficiency in a comparatively lower hierarchy of Assistant
Engineers. On January 1, 1971 which was soon after the publication of the 1970
Rules, there were 6 persons in the cadre of Superintending Engineers all of
whom, except one, are graduates. , The one at the top is an L.E.E. but he
entered service in 1939 and must now be quite on the verge of retirement. There
is therefore but slender chance that a non-graduate could climb into the top
position of a Chief Engineer, which post can, under the rules of 1970, be
filled only by promotion from amongst Superintending Engineers.
Promotion to the cadre of Superintending
Engineers can be made only from amongst Executive Engineers and the, Seniority
list shows that out of 22 Executive Engineers, 19 are graduates and only 3 are
diploma-holders. Out of the 19, the first 15 according to seniority are all
graduates so that the chances of a diploma-holder being promoted as a
Superintending Engineer are rarely remote. With the new rules coming info
force, all Executive Engineers will, after October 12, 1970, be appointed from
amongst graduates in the rank of Assistant Engineers and therefore the cadre of
Executive Engineers will soon consist of graduates exclusively. The Governor
was entitled to give weight to these practical considerations and to restrict
the operation of the impugned rule to cases where their application was
imperative. Dealing with practical exigencies, a rulemaking authority may be,
guided by the realities of life, just as the legislature, while making a
classification "is free to recognize degrees of harm and it may confine
its restrictions to those classes of cases where the need is deemed to be the
clearest (2). if the law presumably bits the evil where it is most felt, it is
not to be overthrown because there are other instances to which it might have
been applied.(s) Only one point remains to be considered and it requires a
close attention as it claims to have the authority of leading decisions
rendered by this Court. We have relegated this point to a rear position because
it was necessary, for a proper understanding thereof, to clear the ground of
various other doubts dealt with above. A neat point can now be framed and
discussed.
(1)Bain Peanut Co. v. Pinson 75 L. ed. 482,
489.
(2) Miler vs. Wilson, 59 L. ed. 632.
(3) Keoke Consol. Coke Co. v. Taylor 53 L.
ed. 1288,1289.
787 If persons recruited from different
sources are integrated into one class, they cannot thereafter be classified so
as to permit in favour of some of them a preferential treatment in relation to
others. That is the argument before us which, applied to the facts of the case,
means in plain terms this : Direct recruits and promotees having been appointed
as Assistant Engineers on equal terms, they constitute an integrated class and
for purposes of promotion they cannot be classified on the basis of educational
qualifications.
We have drawn attention to three decisions of
this Court (Narsing Rao's case, Ganga Ram's case and Dr. Mrs. Kohli's case) in
which classification on the basis of educational qualifications was upheld. In
Narsing Rao's case(',), Tracers doing equal work were classified into two
grades having unequal pay, the basis of the classification being higher
educational qualifications. In Dr. (Mrs.) Kohli's case(2), as refined a
classification as between an F.R.C.S.
in general surgery and an F.R.C.S. in
Orthopaedics was upheld in relation to appointment to the post of a Professor
of Orthopaedics. But these cases are sought to be distinguished on the
authority of the decision of this Court in Roshan Lal Tandon v. Union of
India(3). That case is crowded with facts and requires a careful consideration
for its proper understanding.
Vacancies in Grade 'D' of Train Examiners
were filled in Roshan Lal's case by (a) direct recruits i.e., apprentice train
examiners and (b) promotees from the class of skilled artisans, in the ratio of
50 :50. Promotion from Grade 'D' to Grade 'C' was to be made on the basis of
seniority-cumsuitability. In October, 1965 the Railway Board issued a
notification providing that 80% of the vacancies in Grade 'C' would be filled
up from the class of apprentice train examiners recruited on and after April 1,
1966 and the remaining 20% from amongst the train examiners in Grade 'D'.
The notification further provided That
apprentice train examiners who were absorbed in Grade 'D' before April 1966
would be accommodated en bloc in Grade 'C' in the 80% of the vacancies, without
undergoing any selection. With regard to 20% of the remaining vacancies it was
provided that the promotion would be on the basis of selection and not on the
basis of seniority-cumsuitability. The petitioner, Roshan Lal Tandon, who had
entered Railway service in 1954 as a skilled artisan and was later selected and
confirmed in Grade'D' as a Train Examiner filed a writ petition in this Court
challenging under articles 14 and 16 of the Constitution, that part of the
notification which gave favourable treatment to apprentice train examiners who
had already been absorbed in Grade 'D'. His case was that be, along with direct
recruits, formed one class in Grade 'D' and according to the conditions of
service applicable to them, seniority was to be reckoned from the date of
appointment as Train Examiners in Grade 'D' and promotion to Grade 'C' was to
be, on the basis of seniority, cumsuitability, irrespective of the source of
recruitment. His contention was that since he was appointed to Grade 'D' after
undergoing the necessary selection and training and since he was integrated
with the others who were appointed to Grade 'D' by direct recruitment, no
differentiation could be made an between him and the direct recruits in the
matter of promotion to grade 'C'.
(1) [ 1 9681 (1) S. C. R. 407 (2) A. 1. R.
1973 S. C. 81 1.
(3) [19681 (1) S. C. R. 185.
788 The Constitutional objection taken by
Roshan Lal was upheld by this Court with these observations :
"At the time when the petitioner and the
direct recruits were appointed to Grade 'D', there was one class in Grade 'D'
formed of direct recruits and the promotees from the grade of artisans. The
recruits from both the sources to Grade 'D' were integrated into one class and
no discrimination could thereafter be made in favour of recruits from one
source as against the recruits from the other source in the matter of promotion
to Grade 'C'. To put it differently, once the direct recruits and promotees are
absorbed in one cadre, they form one class and they cannot be discriminated for
the purpose of further promotion to the higher grade 'C'. In the present case,
it is not disputed on behalf of the first respondent that before the impugned
notification was issued there was only one rule of promotion for both the
departmental promoters and the direct recruits and that rule was
seniority-cum-suitability, and there was no rule of promotion separately made
for application to the direct recruits. As a consequence of the impugned
notification a discriminatory treatment is made in favour of the existing
Apprentice Train Exami ners who have already been absorbed in Grade 'D' by
March 31, 1966, because the notification provides that this group of Apprentice
Train Examiners should first be accommodated en bloc in grade C' upto 80 per
cent of vacancies reserved for them without undergoing any selection. As
regards the 20 per cent of the vacancies made available for the category of
Train Examiners to which the petitioner belongs the basis of recruitment was
selection on merit and the previous test of senioritycum-suitability was
abandoned. In our opinion, the present case falls within the principle of the
recent decision of this Court in Mervyn v. Collector [1966(3) S.C.R.
600]." The key words of the judgment are : "The, recruits from both
the sources to Grade 'D' were integrated into one class and no discrimination
could thereafter be made in favour of recruits from one source as against the
recruits from the other source in the matter of promotion to Grade 'C"'.
(emphasis supplied). By this was meant that
in the matter of promotional opportunities to Grade 'C', no discrimination
could be made between promotees and direct recruits by reference to the source
from which they were drawn. That is to say, if apprentice Train Examiners who
were recruited directly to Grade 'D' as Train Examiners formed one common class
with skilled artisans who were promoted to Grade 'D' as Train Examiners, no
favoured treatment could be given to the former merely because they were
directly recruited as Train Examiners and no discrimination could be made as
against the latter merely because they were promotees. This is the true meaning
of the observation extracted above and no more than this can be read into the
sentence next following : "To put it differently, once 789 the direct
recruits and promotees are absorbed into one cadre, they form one class and
they cannot be discriminated for the purpose of further promotion to the higher
Grade 'C' ". In terms, this was just a different way of putting what had
preceded.
Thus, all that Roshan Lal's case lays down is
that direct recruits and promotees lose their birth-marks on fusion into a
common stream of service and they cannot thereafter be treated differently by
reference to the consideration that they were recruited from different sources.
Their genetic blemishes disappear once they are integrated into a common class
and cannot be revived so as to make equals unequals once again.
Roshan Lal's case is thus no authority for
the proposition that if direct recruits and promotees are integrated into one
class, they cannot be classified for purposes of promotion on a basis other
than the one that they were drawn from different sources. In the instant case,.
Classification rests fairly and squarely on the consideration of educational
qualifications : Graduates alone shall go into the higher post, no matter
whether they were appointed as Assistant Engineers directly or by promotion.
The discrimination therefore is not in relation to the source of recruitment as
in Roshan Lal's case.
It is relevant, though inconclusive, that the
very Bench which decided Roshan Lal's case held about a fortnight later in
Narsing Rao's case that higher educational qualifications are a relevant
consideration for fixing a higher pay scale and therefore Matriculate Tracers
could be given a higher scale than non-matriculate Tracers, though their duties
were identical. Logically, if persons recruited to a common cadre can be
classified for purposes of pay on the basis of their educational
qualifications, there could be no impediment in classifying them on the same
basis for purposes of promotion. The ratio of Roshan Lal's case can at best be
an impediment in favouring persons drawn from one source as against those drawn
from another for the reason merely that they are drawn from different sources.
There is an aspect of Roshan Lal's case which
may not be ignored. The Union of India had contended by its counteraffidavit
therein that the reorganization of the service was made with a view to
obtaining a better and more technically trained class of Train Examiners which
had become necessary on account of the acquisition of modern types of Rolling
Stock, complicated designs of carriages and wagons and greater speed of trains
under the dieselisation and electrification programmes. This contention, though
mentioned in the affidavit, was not placed before the court as is transparent
from the judgment. What is impact would have been on the ultimate conclusion
need not be speculated, for it is enough for understanding the true ratio of
the judgment to say that the case was decided on the sole basis that persons
recruited from different sources were classified according as whether they were
appointed directly or by promotion. That is why the key passage cited by us
from the judgment winds up by saying that the "case falls within the
principle of........ the decision.... in Mervyn v. Collector".
790 In Mervyn Coutindo & Ors. v.
Collector of Customs, Bombay & Ors.,(1) no question arose in regard to the
validity of a classification based on educational qualifications. The question
there was whether a rotational system for fixing seniority was discriminatory
if the recruitment was partly by promotion and partly directly. It was held
that there is no inherent vice in such a system if the service is composed in
fixed proportion of direct recruits and promotees. The rotational system could
therefore be adopted in fixing seniority in the cadre of Appraisers, to which
recruitment was in actual practice made directly and by promotion in the ratio
of 50 : 50. But different considerations were held to arise when the same,
system was applied for fixing seniority in the cadre of Principal Appraisers
because, there was only one source from which the Principal Appraisers were
drawn, namely Appraisers. The ratio (itthe judgment is : "The rotational
system cannot.... apply when there is only one source of recruitment".
This is the principle within which Roshan Lal's case was expressed to Neither
the one nor the other of the two cases was concerned with the question which
arises for consideration before us. The classification of which we have to
determine the validity is not made in relation to the source of recruitment.
Therefore cases like Roshan Lal's, Mervyn Coutindo's and Pandit's (2) fall in a
class apart. The case last mentioned is a typical instance of that class, where
directly appointed Mamlatdars were accorded a favoured treatment qua the
promotee Mamlatdars in the matter of promotion to the post of Deputy Collector.
Mamlatdars, whether appointed directly or by
promotion, constituted one class and therefore it was held that no reservation
could be made in favour of the directly appointed Mamlatdars for promotion to
the cadre of Deputy Collectors.
We are therefore of the opinion that though
persons appointed directly and by promotion were integrated into a common class
of Assistant Engineers, they could, for purposes of promotion to the cadre of
Executive Engineers, be classified on the basis of educational qualifications.
The rule providing that graduates shall be
eligible for such promotion to the exclusion of diploma-holders does not
violate articles 14 and 16 of the Constitution and must be upheld.
But we hope that this judgment will not be
construed as a charter for making minute and microcosmic classifications.
Excellence is, or ought to be, the goal of
all good government and excellence and equality are not friendly bedfellows. A
pragmatic approach has therefore to be adopted in order to harmonize the
requirements of public services with the aspirations of public servants. But
let us not evolve, through imperceptible extensions, a theory of classification
which may subvert, perhaps submerge, the precious guarantee of equality. The
eminent spirit of an ideal society is equality and so we must not be left to
ask in wonderment. What after all is the operational residue of equality and
equal opportunity ? For reasons indicated, we allow the appeal but there will
be no order as to costs.
(1) [1966] (3) S. C. R. 600.
(2) S. M. Pandit v. State of Gniarar, A. 1.
R. 1972 S. C. 252 791 KRISHNA IYER, J. We fully endorse what has been said by
our learned brother Chandrachud, J., but the profound depths of equal justice
in public employment touched in his final paragraph (with which we ardently
agree) impel a few concurring observations of our own.
In this unequal world the proposition that
all men are equal has working limitations, since absolute equality leads to
Precrustean cruetly or sanctions indolent inefficiency.
Necessarily, therefore, an imaginative and
constructive modus vivendi between commonness and excellence must be forged to
make the equality clauses viable. This pragmatism produced the judicial gloss
of 'classification' and 'differentia', with the by-products of equality among
equals and dissimilar things having to be treated differently. The social
meaning of arts. 14 to 16 is neither dull uniformity nor specious 'talentism'.
It is a process of producing quality out of larger areas of equality extending
better facilities to the latent capabilities of the lowly. It is not a
methodology of substitution of pervasive and slovenly mediocrity for activist
and intelligent-but not snobbish and uncommitted-cadres. However, if the State
uses classification casuistically for salvaging status and elitism, the point
of no return is reached for arts. 14 to 16 and the Courts jurisdiction awakens
to dadden such manoeuvres. The soul of art. 16 is the promotion of the common
man's capabilities, over powering environmental adversities and opening up full
opportunities to develop in official life without succumbing to the sophistic
argument of the elite that talent is the privilege of the few and they must
rule, wriggling out of the democratic imperative of arts. 14 and 16 by the
theory of classified equality which at its worst degenerates into class
domination.
The relevance of these abstract remarks to
the present case is obvious. Engineers with diplomas are likely to be drawn
from poorer families and not necessarily because they are incapable of making
the 'degree' grade. An opportunity for them to level up, through experience and
self-study, with their more fortunate degree-holding meritocracy, is of the
essence of equal opportunity for people with dragging backgrounds. If
economically, and therefore .
educationally-, handicapped men distinguish
themselves, they are heroes and should be honoured and not kept humble through
life on account of the original sin of inferior qualifications. Indeed '
diploma holders in that Himalayan State were good enough, in the past decades,
to go to the top of the ladder, as the facts of this case admittedly disclose.
However, in these young days few engineering graduates in the State and few
engineering colleges in the country compelled Government to recruit diploma
holders and promote them to higher offices. But circumstances have changed,
needs have increased, availabilities have expanded and inequalities at the
educational level have been partly eliminated. And so personal policy, with an
eye on efficiency, has changed. While we agree with counsel that 'chill penury'
should not ,repress their noble rage', still during our transitional
developmental stage the sacrifice of technical proficiency at the altar of
wooden equality is an unreasonable injury the State cannot afford to self inflict.
The 7 9 2 technology of equal opportunity is
to assume diffusion of talent and to afford in-service facilities, through
relaxation of rules and otherwise, to the weaker members to acquire better
skills.
The wise and tonic words of our learned
brother, if we may say so with great deference, are however portentous. While
striking a balance between the long hunger for equal chance of the lowlier and
the disturbing concern of the community for higher standards of performance,
the State should not jettison the germinal principle of equality altogether.
[The dilemma of democracy is as to how to avoid validating the abolition of the
-difference between the good and the bad in the name of equality and putting to
sleep the constitutional command for expanding the areas of equal treatment for
the weaker ones with the dope of 'special qualifications' measured by expensive
and exotic degrees. These are perhaps meta-judicial matters left to the other
branches of Government, but the Court must hold the Executive within the
loading strings of egalitarian constitutionalism and correct, by judicial
review, episodes of subtle and shady classification grossly violative of equal
justice. That is the heart of the matter. That is the note that rings through
the first three fundamental rights the people have given to themselves.]
Mini-classifications based on micro-distinctions are false to our egalitarian faith
and only substantial and straightforward classifications plainly promoting
relevant goals can have constitutional validity. To overdo classification is to
undo equality. If in this case Government had prescribed that only those degree
holders who had secured over 70% marks could become Chief Engineers and those
with 60% alone be eligible to be Superintending Engineers or that foreign
degrees would be preferred we would have unhesitatingly voided it.
The role of classification may well recede in
the long run, and the finer emphasis on broader equalities implicit in the
concluding thought of the leading judgment will abide. The decision in this
case should not-and does not-imply that by an undue accent on qualifications
the Administration can out back on the larger tryst of equalitarianism or may
hijack the founding and fighting faith of social justice into the enemy camp of
intellectual domination by an elite. The Court, in extreme cases, has to be the
sentinel on the qui vive.
K.B.N.
Appeal allowed.
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