Roop Chand
Adlakha & Ors Vs. Delhi Development Authority & Ors
[1988] INSC 302 (26
September 1988)
Venkatachalliah,
M.N. (J) Venkatachalliah, M.N. (J) Misra Rangnath
CITATION:
1989 AIR 307 1988 SCR Supl. (3) 253 1989 SCC Supl. (1) 116 JT 1988 (4) 114 1988
SCALE (2)897
ACT:
Constitution
of India, 1950 Articles 14 and l6 Services-
Appointment and promotion-State entitled to prescribe that a candidate should
have a particular qualification plus a stipulated quantum of service
experience.
%
Civil Services-D.D.A.-Engineering Cadre Promotion of Junior Engineers to
Assistant Engineers and Assistant Engineers to Executive Engineers-Different
conditions of eligibility of Diploma-Holder and Graduates-Prescription
of-Whether violative of Articles 14 and 16.
HEAD NOTE:
The
Rules of the Central Public Works Department (CPWD) adopted by the Delhi
Development Authority (DDA) stipulate and provide that 50% of the posts of
Assistant Engineers in DDA be filed-up by promotion from the cadre of Junior
Engineers comprising of both Graduates in Engineering and Diploma-Holders in
Engineering in the equal ratio (50%:50%) of the promotional posts. Half of it,
i.e. 25% were to be filled up by promotion of Graduate Junior-Engineers with
three years' service experience as Junior-Engineers; the other 25% to be filled
up from Diploma-Holder. Junior- Engineers. who had X years service experience
as Junior- Engineers. The Rules further provide that the Executive Engineers'
post in DDA were purely promotional and Graduate Assistant Engineers with 8
years' service-experience and Diploma-Holder Assistant Engineers with 10 years'
service- experience were eligible for promotion. No inter se quota between the
two class of officers; was prescribed.
The
Diploma-Holders in the Cadres of .junior Engineers and Assistant Engineers
filed separate writ petitions in the High Court assailing the constitutional
validity of the prescriptions made by the rules in the matter of requirement of
differential service-experiences between the Graduates and the Diploma-Holders
for promotion to the higher caders of Assistant Engineers and Executive
Engineers respectively.
They
also assailed the promotion of Graduate Engineers to the higher cadres made on
the strength of the Rules.
PG NO
253 PG NO 254 The High Court allowed the writ petitions and declared the
different standards of service-experience prescribed for Degree-Holders and
Diploma-Holders in respect of both the cadres as violative of Articles 1-1 and
16 of the Constitution.
In the
appeal to this Court, on behalf of appellants it was contended;
(l) that
the view taken by the High Court is demonstrably erroneous and opposed to well
settled principles;
(2) that
the High Court took an erroneous view that in Shujat Ali's case (1975 (1) SCR
449) this Court struck down the service rule impugned in that case;
(3) that
the fundamental distinction between Triloki Nath Khosa's, case [1974] 1 SCR 771
and Shujat Ali's case was lost sight of by the High Court;
(4) that
the present case was not one in which the Diploma-Holders, proprio vigore and
without more, were held eligible for promotion. The educational qualification
of a Diploma in engineering was not treated as equivalent to a Degree for
purposes of determining eligibility. Nor the Degree itself was determinative of
eligibility for promotion. The eligibility of promotion is based on a
combination of factors which vary according to the basic educational
qualification of the two classes of engineers;
(5) that
this distinction was germane to the requirements of higher technical and
academic quality for the higher posts which involved expertise in structural
design. etc. and
(6) that
even where recruitment to a particular cadre was made from different sources, resulting
in the formation of a single homogeneous cadre it was not impermissible to make
a further classification amongst the members of such a cadre for purposes of
further promotion based on the higher educational qualification of the
candidates.
On
behalf of the respondent Diploma-Holders it was contended
(1) that
this Court had, more than once. cautioned against undue accent, in the matter
of promotional opportunities, on academic-qualification alone which might lead
to elitist perferences and tend to obscure the egalitarian principle and social
justice;
(2) that
the effect of the distinction is really an imperceptible extension or
magnification of insubstantial factors subverting the precious guarantee of
equality and
(3)
that to discriminate between Diploma-Holders and Graduates who belong to the
same cadre and hold inter-changeable posts, both in the present cadre and in
the prospective promotional posts, on the mere lack of some higher academic
attainment is to place a high premium on these social and economic pursuits for
the economically disadvantaged difficult.
Allowing
the Appeals, PG NO 255
HELD:
l. The inherent distinction between a person with a Degree and one who is
merely a Diploma-Holder is much too obvious. But the question for
consideration, in the present context, is whether the differences have a
reasonable relation to the nature of the office to which the promotion is
contemplated. The idea of equality in the matter of promotion can be predicated
only when the candidates for promotion are drawn from the same source. If the
differences in the qualification has a reasonable relation to the nature of
duties and responsibilities. that go with and are attendant upon the
promotional post, the more advantageous treatment of those who possess higher
technical qualifications can be legitimised on the doctrine of classification.
There may, conceivably, be cases where the differences in the educational
qualifications may not be sufficient to give any preferential treatment to one
class of candidates as against another. Whether the classification is reasonable
or not must, therefore, necessarily depend upon facts of each case and the
circumstances obtaining at the relevant time. When the State makes a
classification between two sources, unless the vice of the classification is
writ large on the face of it, the person assailing the classification must show
that it is unreasonable and violative of Article 14. [263A-C ]
2. A
wooden equality as between all classes of employees irrespective of all
distinction or qualifications, or job- requirements is neither constitutionally
compelled nor practically meaningful. [263D] The process of classification is
in itself productive of inequality and in that sense antithetical of equality.
The process would be constitutionally valid if it recognises a pre-existing inequality
and acts in aid of amelioration of the effects of such pre-existent inequality.
The the process cannot merely blow-up or magnify in-substantial or microscopic
differences on merely meretricious or plausible.
The
over-emphasis on the doctrine of classification or any anxious and sustained
attempts to discover some basis for classification may gradually and
imperceptibly deprive the article of its precious content and end in re-placing
doctrine of equality by the doctrine of the classification.[264C-D]
4. The
presumption of good faith in and of constitutionality of a classification
cannot be pushed to the point of predicating some possible or hypothetical but
undisclosed and unknown reason for a classification rendering the precious
guarantee of equality "a mere rope of sand". [264E] PG NO 256 Central
Railway v. A.V.R. sidhanti, [1974] 3 SCR 207 at 214 and T.Devadasan V. The Union of India, [1964]
4 SCR at 689 & 690 followed.
5."To
overdo classification is to undo equality". The idea of similarity or
dissimilarity of situations of persons to justify classification, cannot rest
on merely differentia which may, by themselves rational or logical, but depends
on whether the differences are relevant to the goals sought to be reached by
the law which seeks to classify. The justification of the classification must,
therefore, be sought beyond the classification. All marks of distinction do not
necessarily justify classification irrespective of the relevance or nexus to
objects sought to be achieved by the law imposing the classification. [264F-G]
State of Jammu & Kashmir v. Triloki Nath Khosa & Ors.,[1974] I SCR 771;
Bidi Suppy Co.v. Union of India, [1956] SCR 182, relied no; Mohammad shujat Ali
v. UOI and others, [1975]1 SCR 449; H.C. Sharma and Ors. v. Municipal
Corporation of Delhi and Ors., [1983]3 SCR 372 and Punjab State Electricity Board, Patiala, and Anr.v. Ravinder Kumar Sharma & Ors.,[1986] 4 SCC 617
distinguished; State of Mysore v. Narasinga Rao, [1968] 1 SCR 401 and Union of
India v. Mrs. S.B. Kohli, [1973]3 SCR 117, referred to.
6. In
the present case, the possession of a diploma. by itself and without more, does
not confer eligibility.
Diploma,
for purposes of promotion, is not considered equivalent to the degree. [268d]
7.If the educational qualification by itself was recognised as confering
eligibility for promotion, then the super-imposition of further conditions such
as a particular period of service, selectively, on the Diploma Holders alone to
their disadvantage might become discriminatory. This does not prevent the State
from formulating a policy which prescribes as an essential part of the
conditions for the very eligibility that the candidate must have a particular
qualification plus a stipulated quantum of service experience.[268G-H;269A]
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos.896 to 899 of 1988 and Civil Appeal
No. 3352 of 1988.
From
the Judgment and Order dated 2.9.1987 of the Delhi High Court in C.W.P. No.
2131,2082 of 1984 respectively.
PG NO
257 G. Ramaswami, Additional Solicitor General, R.K. Jain, P.P. Rao, M.S. Gujaral,
S. Rangarajan, A.K. Sanghi, Mrs. Madhu Kapur, Arun Kr. Vijayesh Roy, Sanjay Kr.
Kaul, Sardar Bahadur, V.B. Saharaya, R.K. Khanna, Vishnu Mathur, Ashok Aggarwal,
R.N. Keswani and R.S. Sodhi for the appearing parties.
The
Judgment of the Court was delivered by VENKATACHALIAH, J. These four Civil
Appeals by Special Leave and the Special Leave Petition arise out of and are
directed against the common Judgment dated 2.9.1987, of the High Court of Delhi
in C.W.P. No. 2132 and C.W.P. No. 2082 of 1984 in which the principal
controversy was whether the Rules prescribing different conditions of
eligibility for Diploma-Holders and Graduates for promotion from the cadre of
Junior-Engineers to that of Assistant-Engineers and from the cadre of
Assistant-Engineers to that of Executive- Engineers in the Public Works
Department of the Delhi Development Authority (DDA) is violative of Articles 14
and 16 of the Constitution and would, therefore, require to be declared void.
The
High Court, in the writ petitions filed by the Diploma-Holders, has held that
such differential treatment of Diploma-Holders and Graduates by the
prescription of different standards of service-experience for purposes of
eligibility for promotion to the higher cadres is unconstitutional.
2. The
D.D.A. which is the appellant in Civil Appeals No.898 of 1988 and No. 899 of
1988 assails the correctness of the view taken by the High Court. Civil Appeals
No. 896 of 1988 and 897 of 1988 are by the Graduate-Engineers who were
respondents before the High Court and who are, similarly, aggrieved by the
decision under appeal SLP 6181 of 1988 is by the DDA Graduate Engineers
Association" which seeks to espouse the cause of the Graduate-Engineers.
We grant Special Leave in SLP. All the five appeals are heard and disposed of
by this common judgment.
PG NO
258 C.A.899 of 1988, C.A. 896 of 1988 and SLP 6181 arise out of C.W.P. 2132 of
1984. C.A. 898 of 1988, C.A. 897 of 1988 arise out of C.W.P. 2082 of 1984.
3. The
D.D.A. by its resolution No. 574 dated 13.11.1963 adopted, pro-tanto, the rules
of the Central Public Works Department (CPWD) in regard to the mode of
recruitment-both by direct recruitment and by promotion-to the posts of Asst.
Engineers. The rules, so adopted, in substance, stipulate and provide that 50%
of the posts be filled by direct recruitment or by deputation and that the
other 50% be filled-up by promotion from the cadre of Junior-Engineers.
The
cadre of Junior-Engineers itself comprises of both Graduates in Engineering and
Diploma-Holders in Engineering.
The
two categories of officers in the cadre of Junior- Engineers were provided with
promotional opportunities to the post of Asst. Engineers in the equal ratio
(50%:50%) of the promotional-posts. Half of it, i.e., 25% was to be filled up
by promotion of Graduate-Engineers with three years' service-experience as
Junior-Engineers; the other 25% to be filled-up from Diploma-Holder
Junior-Engineers who were diploma holders who had 8 years' service-experience
as Junior-Engineers.
By
resolution No. 105 dated 16.6.1971 the DDA similarly adopted the relevant rules
in the CPWD in the matter of recruitment to the posts of Executive-Engineers.
The Executive-Engineers' post in the DDA thus became purely promotional and
Graduate Asst. Engineers with 8 years' service-experience and diploma Asst.
Engineers with 10 years' service-experience were eligible for promotion. No
inter-se quota between the two class of officers was prescribed.
The
following table delineates the effect and purport of the rules adopted under
resolution No. 574 dated 13.11.1963 and No. 105 dated 16.6.1971. The table also
indicates the mode of initial recruitment to the cadre of Junior- Engineers:
PG NO
259 EXECUTIVE ENGINEERS [By promotion] Asst. Engrs.' Asst. Engrs.' [Degree] +
[Diploma] 8 years +10 years service service ASSISTANT ENGINEERS Graduates and Dimploma
holders 50%by promotion 50%.By Direct recruitment 25% 25% Jr. Enger. Jr.Engr.
[Degree]
[Diploma] +3 yrs. + 8 years service service JUNIOR ENGINEERS [Sectional
Officers] Direct recruitment Graduates in Diploma- Engineering holders [No
prior [with 2 experience years Prescribed] experience In the years 1984 the
Diploma-Holder in the cadre of Junior-Engineers and in he cadre of Asst. Engineers
sought to assail, by means of two writ-petitions presented to the Delhi High
Court, the Constitutional validity of the prescriptions made by the rules in
the matter of requirement of differential service-experiences between the
Graduates and Diploma-Holders for promotion to the higher cadres viz. of Asst.
Engineers and Executive-Engineers respectively.
They
also assailed the promotions of Graduate-Engineers to the higher cadres made on
the strength of the Rules. CWP. 2132 of 1984 pertained to the resolution No.
574 dated 13.11.1963 adopting the relevant CPWD Rules prescribing 3 years' and
8 years' service-experience for Graduates and Diploma-Holders respectively and
the discrimination thus brought about between them. CWP No. 2082 of 1984
pertained to the contitutionality of the analogous provisions in the rules
adopted by resolution No. 105 dated 16.6.1971.
PG NO
260 The High Court heard these two petitions together and by its common
judgment dated 2.9.1987 upheld the challenge and declared the different
standards of service-experience prescribed for Degree-Holders and
Diploma-Holders in respect of both the cadres as violative of Articles 14 and
16 of the Constitution.
5. The
principal question that arises in these appeals is whether, where, as here, recruitment
to a particular cadre of posts is made, from two different sources, different
conditions, based on the differences in educational qualifications, can be
prescribed conditioning the eligibility for further-promotion to a higher cadre
in service.
The
High Court, by the judgment now under appeal, has held that such prescription
of differential standards-based even on the differences in technical,
educational qualifications-is violative of Article 14 and 16 of the
Constitution. In reaching such conclusions as it did on the point, the High
Court placed reliance on the pronouncement of this Court in Mohammad Shujat Ali
v. UOI and Others,[1975] 1 SCR 449, H. C. Sharma and Ors. v. Municipal
Corporation of Delhi and Ors., [1983] 3 SCR 372 and Punjab State Electricity Board,Patiala, and Anr. v. Ravinder Kumar Sharma & Ors.,[1986] 4 SCC 617 and T.R:
Kapur and Others v. State of Haryana and Others, AIR 1987 SC 415. The High
Court distinguished the decision of this (Court in State of Jammu & Kashmir
v. Triloki Nath Khosa & Ors., l1974] 1 SCR 771.
The
High Court drew a distinction between the situation where diploma-holders were
wholly excluded from eligibility for promotion to the higher cadre and the
situation where, while they were considered eligible for promotion, however,
were subjected to more onerous and less advantageous conditions for such
promotion. The High Court distinguished Triloki Nath Khosa's case observing:
"7.
This was a case where diploma holders were found completely ineligible for
promotion to the higher post for lack of essential educational qualification
but the considerations may vary if they are found eligible for promotion to the
higher post but still certain conditions are laid as distinct from degree
holders before they become eligible for promotion. The question then would
arise whether such distinction can be justified and is based on any rationality
or not .." PG NO 261 Answering this point in favour of the
"Diploma-Holders" the High Court held:
"...The
moment the diploma holders and degree holders are considered to constitute one
class for purposes of promotion there cannot be any differentiation between the
two vis-a- vis the qualification for promotion. It could be that for reasons of
efficiency in administration the authorities may lay down that diploma holders
are not at all eligible for promotion to the higher post and such a bar can be
upheld in view of the ratio laid down in the case of Triloki Nath Khosa but
after the authorities considered them eligible for promotion there could be no
rationale in their making any distinction between the degree-holders and
diploma-holders for granting promotion to them to the higher post...."
(Emphasis Supplied) The point of distinction, as apprehended by the High Court,
is that in the present case a Diploma, ipso-facto, qualifies for promotion. The
real question is whether this assumption is correct and whether the relevant
Rules determine the eligibility for promotion on the basis of a Diploma, or for
that matter even a Degree, Or whether the eligibility for promotion is
determined not with reference merely to the educational attainments but on the
basis of educational qualifications plus a measure of service- experience,
stipulated differently for Graduates and Diploma-Holders.
6.
Learned counsel for the appellants, contended that the view that commended
itself to the High Court is demonstrably erroneous and is opposed to principles
which, by now, should be considered well-settled. They submitted that the High
Court fell into an obvious error in its view that in Shujat Ali's case ( 1975)
1 SCR 449, this Court had stuck down the service-rule impugned in that case.
Learned Counsel submitted that the fundamental distinction between the two sets
of cases, one of which Triloki Nath Khosa's case is represents, and the other
typified by Shujat Ali's case, was lost sight of by the High Court and the
error pervading the judgment is the result of overlooking this essential
distinction between the two sets of cases.
It was
contended for the appellants that the present case was not one in which the
Diploma-Holders proprio- vigore, and without more, were held eligible for
promotion.
If the
effect and intent of the rules were such as to treat PG NO 262 Diploma as
equivalent to a Degree for purposes of further promotion then, the view of the
High Court-that having considered both class of officers equally eligible for
promotion on the mere strength of their educational qualifications, any further
discrimination brought about by subjecting the Diploma-Holders alone to a more
onerous and less advantageous stipulation for such promotion would violate, the
constitutional pledge of equality-might have some qualification. But in the
present case, counsel contended, that is not the position. The educational qualification
of a Diploma in engineering was not treated as equivalent to a Degree for
purposes of determining eligibility. Nor the Degree itself was determinative of
eligibility for promotion. The eligibility for promotion is, it is urged, based
on a combination of factors which vary according as the basic educational
qualification of the two classes of engineers; that this distinction was
germane to the requirements of higher technical and academic quality for the
higher posts which involved expertise in structural- design etc. Learned
counsel submitted that even where recruitment to a particular cadre was made
from different sources, resulting in the formation of single a homogeneous
cadre, it was not impermissible to make a further classification amongst the
members of such a cadre for purposes of further promotion based on the higher
educational qualification of the candidates.
Learned
counsel for the respondent-diploma-holders, while seeking to support the
judgment of the High Court urged that this Court had, more than once, cautioned
against undue accent, in the matter of promotional opportunities, on academic
qualification alone which might lead to elitist preferences and tend to obscure
the egalitarian principle and social-justice. It was, therefore, contended that
the effect of the distinction, in the ultimate analysis, is really an
imperceptible extension or magnification of insubstantial factors sub-verting
the precious guarantee of equality. Sri Gujral, learned Senior Counsel, sought
to impart to the situation a dimension of social-justice and made an
impassioned plea that to discriminate between Diploma-Holders and Graduates who
belong to the same cadre and hold inter-changeable posts, both in the
present-cadre and in the prospective promotional posts, on the mere lack of
some higher academic attainment is to place a high premium on those social and
economic ills of the society which rendered the further academic pursuits for
the economically disadvantaged difficult.
7. A
large number of authorities were cited on either side. We by first examine the
cases relied upon by the High Court in support of its conclusion. The inherent
distinction PG NO 263 between a person with a Degree and one who is merely a
Diploma-Holder is much too obvious. But the question that falls for
consideration, in the context such as the present one, is whether the
differences have a reasonable relation to the nature of the office to which the
promotion is contemplated. The idea of equality in the matter of promotion can
be predicated only when the candidates for promotion are drawn from the same
source. If the differences in the qualification has a reasonable relation to
the nature of duties and responsibilities, that go with and are attendant upon
the promotional-post, the more advantageous treatment of those who possess
higher technical qualifications can be legitimised on the doctrine of
classification. There may, conceivably, be cases where the differences in the
educational qualifications may not be sufficient to give any preferential
treatment to one class of candidates as against another. Whether the
classification is reasonable or not must, therefore, necessarily depend upon
facts of each case and the circumstances obtaining at the relevant time. When
the state makes a classification between two sources, unless the vice of the
classification is writ large on the face of it, the person assailing the
classification must show that it is unreasonable and violative of Article 14. A
wooden equality as between all classes of employees irrespective of all
distinctions or qualifications, or job-requirements is neither constitutionally
compelled nor practically meaningful. This Court in Central Railway v. A.V.R. Siddhanti,
[1974] 3 SCR 207 at 214 observed:
"....A
wooden equality as between all classes of employees regardless of
qualifications, kind of jobs, nature of responsibility and performance of the
employees is not intended, nor is it practicable if the administration is to
run. Indeed, the maintenance of such a 'classless and undiscerning 'equality'
where, in reality, glaring inequalities and intelligible differentia exist,
will deprive the guarantee of its practical content. Broad classification based
on reason, executive pragmatism and experience having a direct relation with the
achievement of efficiency in administration, is permissible
In T. Devadasan
v. The Union of India,[1964]4 SCR 680 at 689 & 690 this Court observed:
"....What
is meant by equality in this Article is, equality amongst equals. It does not
provide for an absolute equality of treatment to all persons in utter disregard
PG NO 264 in every conceivable circumstance of the differences such as age,
sex, education and so on and so forth as may be found amongst people in
general. Indeed, while the aim of this Article is to ensure that invidious
distinction or arbitrary discrimination shall not be made by the State between
a citizen and a citizen who answer the same description and the differences
which may obtain between them are of no relevance for the purpose of applying a
particular law reasonable classification is permissible. It does not mean
anything more.
But
then the process of classification is in itself productive of inequality and in
that sense antithetical of equality. The process would be constitutionally
valid if it recognises a pre-existing inequality and acts in aid of
amelioration of the effects of such pre-existent inequality.
But
the process cannot in itself generate or aggravate the inequality. The process
cannot merely blow-up or magnify in- substantial or microscopic differences on
merely meretricious or plausible dif-ferences. The over-emphasis on the
doctrine of classification or any anxious and sustained attempts to discover
some basis for classification may gradually and imperceptibly deprive the
article of its precious content and end in replacing Doctrine of equality by
the doctrine of classification. The presumption of good faith in and of
constitutionality of a classification cannot be pushed "to the point of
predicating some possible or hypothetical but undisclosed and unknown reason
for a classification rendering the precious guarantee of equality "a mere
rope of sand".
"To
overdo classification is to undo equality". The idea of similarity or
dissimilarity of situations of persons, to justify classification, cannot rest
on merely differentia which may, by themselves be rational or logical, but
depends on whether the differences are relevant to the goals sought to be
reached by the law which seeks to classify. The justification of the classification
must needs, therefore, to be sought beyond the classification. All marks of
distinction do not necessarily justify classification irrespective of the
relevance or nexus to objects sought to be achieved by the law imposing the
classification.
8. In Mohd.
Sujat Ali's case the validity of a prescription of the rules of the State of Andhra Pradesh treating Graduate-Engineers, on the
one hand, and engineers with diploma or equivalent qualification, on the other,
differently for purposes of promotion arose for consideration. Strictly
speaking, the High Court was not right in its under-standing of the actual
result of the PG NO 265 ease. The High Court, in para 8 of the judgment
observed:
"The
Supreme Court had then struck down this rule as violative of fundamental rights
enshrined in Articles 14 and 16 of the Constitution of India.." But it is to be noticed
that the writ-petitions were ultimately dismissed by this Court. There are, of
course, certain observations which caution against too readily resorting to the
expedience of classification. After referring to Triloki Nath Khosa's ease it
was observed:
".....But
from these decisions it cannot be laid down as an invariable rule that whenever
any classification is made on the basis of variant educational qualification.,
such classification must be held to be valid irrespective of the nature and
purpose of the classification or the quality and extent of the differences in
the educational qualifications.
It
must be remembered that "life has relations not capable always of division
into inflexible compartments". The moulds expand and shrink. The test of
reasonable classification has to be applied in each ease on its peculiar facts
and circumstances " (Emphasis Supplied) This echoes what Vivian Bose, J.
had earlier said in Bidi ,Supply Co. v. Union
of lndia [1956] SCR 182:
"Article
14 sets out, to my mind, an attitude of mind,a way of life. rather than a
precise rule of law ......
".....In
a given case that it falls this side of the line or that and because of that
decisions on the same point will vary as conditions vary, one conclusion in one
part of the country and another somewhere else; one decision today and another
tomorrow when the basis of society has altered and the structure of current
social thinking is different.
It is
not the law that alters but the changing conditions of the times and Article t4
narrows down to a question of fact which must be determined by the highest
Judges in the land as each ease arises....." Shujat Ali's ease itself
recognised the permissibility and validity of such classification if the nature
of the PG NO 266 functions and duties attached to the promotional-posts are
such as to justify the classification in the interest of efficiency in public
service; but, where both graduates and non-graduates were regarded as equally
fit and eligible for promotion,the denial of promotion to a person otherwise
eligible and due for promotion on the basis of a quota was not justified. On
this point it was observed by this Court in Shujat Ali's case:
".....But
where graduates and non-graduates are both regarded as fit and, therefore,
eligible for promotion,it is difficult to see how, consistently, with the claim
for equal opportunity, any differentiation can be made between them by laying down
a quota of promotion for each and giving preferential treatment to graduates
over non-graduates in the matter of fixation of such quota. The result of
fixation of quota of promotion for each of the two categories of supervisors
would be that when a vacancy, arises in the post of Asst. Engineer, which,
according to the quota is reserved for graduate supervisors, a non-graduate
supervisor cannot be promoted to that vacancy, even if he is senior to all
other graduate supervisors and more suitable than they. His opportunity for
promotion would be limited only to vacancies available for non-graduate
supervisors. That would clearly amount to denial of equal opportunity to him In
the present appeals before us, the Graduates and Diploma-Holders were not
treated equal in the mattes of eligibility for promotion. What is, therefore,
assailed is not the aspect of the mere fixation of a quota as between the
Diploma-Holders and the Graduates in the promotional posts, but the very
prescription of different standards or conditions of eligibility. In Shujat
Ali's case the infirmity of the differential treatment stemmed from the
fundamental basis that, at that point, both Graduates and Diploma-holders were
equally eligible but the Rule operated to deny promotion to a Diploma-holder on
the basis of a quota. The observations in that case pertained to a stage which
arose after the equality of eligibility for promotion between the two classes
of persons had been recognised. But in the present appeals the different
prescriptions for conditioning eligibility are themselves questioned which need
to be decided on the basis whether the discrimination contemplated and brought
about in the matter of promotional- opportunities between graduates and
non-graduates, based on the differences in the quality of their technical
qualifications, were relatable to, and justified on the PG NO 267 basis of, the
requirements of the promotional-posts. It is relevant to mention here that the
different standards and Conditions for eligibility were prescribed with a view
to injecting a higher technical quality in the promotions-cadre based on the
recommendations of a committee, called "Vaish- Committee",
constituted for the purpose.
H.C.
Sharma's and Punjab State Electricity Board's cases were also matters where
Graduates and Diploma-holders were merged into and formed part of a homogenious
cadre with equal eligibility for promotion and what fell for consideration was
the validity of the further prescription of quotas between them. Here-again, no
question of the validity of the different standards prescribed for the very
eligibility for promotion fell for consideration. The present cases, however,
are those where, havig regard to the requirements of the promotional-posts,
different conditions of eligibility for promotion on the differences based on
the educational qualifications and service-experience were prescribed.
9. In
State of Mysore v. Narasinga Rao,[1968] 1 SCR 40 1 higher educational
qualifications were considered relevant for fixation of higher pay-scales. In Union of India v. Mrs.
S.B. Kohli,[1973] 3 SCR 117 the requirement of a post graduate specialisation
in the particular discipline was considered not irrelevant and a classification
based on such specialisation was upheld.
Triloki
Nath Khosa's case is more directly in point.
There,
Graduate-Engineers and Diploma-Holders were in a common-cadre of Asst.
Engineers. But for purposes of further promotion to the higher cadre of
Executive-Engineers only the Graduate were held eligible. Diploma-Holders were
barred for promotion. Repelling the challenge to this provision made by the
Diploma Holders, this Court said:
"The
classification of Assistant Engineers into Degree- holders and Diploma-holders
could not be held to rest on any unreal or unreasonable basis. The
classification 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 presumption
evidence of a higher mental equipment." "Classification on the basis
of educational qualifictions made with a view to achieving administrative PG NO
268 efficiency cannot be said to rest on any fortuitous circumstances and one
has always to bear in mind the facts and circumstances of the case in order to
judge the validity of a classification." "Though persons appointed
directly and by promotion were integrated into a common class of Assistant
Engineers, they could, for purposes of promotion to then 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. " (Emphasis Supplied) In Triloki Nath's case
diploma-holders were not considered eligible for promotion to the higher post.
Here, in the present case, the possession of a diploma, by itself and without
more, does not confer eligibility. Diploma, for purposes of promotion, is not
considered equivalent to the degree. This is the point of distinction in the
situations in the two cases. If Diploma-Holders-of course on the justification
of the job-requirements and in the interest of maintaining a certain quality of
technical expertise in the cadre-could validly be excluded from the eligibility
for promotion to the higher cadre, it does not necessarily follow as an
inevitable corollary that the choice of the recruitment policy is limited only
two choices, namely either to consider them "eligible" or "not
eligible". State, consistent with the requirements of the
promotional-posts and in the interest of the efficiency of the service, is not
precluded from conferring eligibility on Diploma-Holders conditioning it by
other requirements which may, as here, include certain quantum of
service-experience. In the present case, eligibility-determination was made by
a cumulative-criterion of a certain educational qualification plus a particular
quantum of service experience. It cannot, in our opinion, be said, as
postulated by the High Court, that the choice of the State was either to recognise
Diploma-Holders as "eligible" for promotion or wholly exclude them as
"not-eligible". If the educational qualification by itself was recognised
as conferring eligibility for promotion, then, the super-imposition of further
conditions such as a particular period of service, selectively, on the
Diploma-Holders alone to their disadvantage might become discriminatory. This
does not prevent the State from formulating a policy which prescribes as an
essential part of the conditions for the vary eligibility that the candidate
must have a particular qualification plus a stipulated quantum of service- PG
NO 269 experience. It is stated that on the basis of the "Vaish-
Committee" report, the authorities considered the infusion of higher
academic and technical quality in the personnel requirements in the relevant
cadres of Engineering Services necessary. These are essentially matters of
policy. Unless the provision is shown to be arbitrary, capricious, or to bring
about grossly unfair results, judicial policy should be one of judicial-
restraint. The prescriptions may be somewhat cumbersome or produce some
hardship in their application in some individual cases; but they can not be
struck down as unreasonable, capricious or arbitrary. The High Court, in our
opinion, was not justified in striking down the Rules as violative of Articles
14 and 16.
10.
Accordingly, all the Appeals are allowed, the Judgment of the High Court dated
2.9.1987 set-aside and the Civil Writ Petitions No. 2 132 of 1984 and 2082 of
1984 in the High Court dismissed. However, the parties are left to bear and pay
their costs, both here and below.
A.P.J
. Appeals allowed.
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