Corporation of India etc. Vs. Om Prakash
Sharma & Ors  INSC 420 (14 August 1998)
Agarwal, M. Srinivasan, A.P. Misra Srinivasan, J.
granted in S.L.P.
Food Corporation of India (hereinafter referred to as
Corporation) was established under the Food Corporation of India Act, 1945 (for
short, the Act). Section 45 of the Act empowered the Corporation to make
regulations for the purpose of giving effect to the provisions of the Act with
the previous sanction of the Central Government. One of t he matters set out in
sub-section 2 is `the method so appointment, the conditions of service etc. of
the officer and employees of the Corporation other than the Secretary'.
the first time in 1971 F.C.I. (Staff) Regulations were framed. Prior to that
all matters relating to the service of employees were governed by Office
Under the 1971 Regulation, category 3 `comprised inter alia the posts of
Assistant Grade I (for short AG-I), Assistant Grade- II (for short AG-II), Assistant
Grade-III (for short AG-III), Typist and Telephone Operator in the General
Administration Cadre as well as in the Godown Cadre.
minimum educational qualification for the posts of AG I, AG II and AG III was
graduation while it was matriculate for the other two posts. The mode of
recruitment for the post of AG I was 100% promotion from the posts of AG II or
Telex Operators failing which direct recruitment. The eligibility criterion was
three years of service as AG II or Telex Operator. Th post of AG II was to be
filled up by 100% promotion of those who had three years service as AG III,
Typist or Telephone Operator failing which by direct recruitment.
1.5.1974 a circular was issued by the Corporation that it had been decided to
make a differentiation at the time of first promotion from the recruiting
grades between graduates and matriculates. According to the circular, the
former would become eligible for promotion after three years of service while
the latter would become eligible after five years of service. The circular also
made it clear that promotions made in that manner will be made on provisional
basis for the time being as a purely temporary measure and they may be regularised
as son as formal amendment to the Regulations was made. On 22nd April, 1976 the F.C.I. (Staff) (30th Amendment)
Regulations, 1976 was notified. It was deemed to have come into force on
1.5.74. That pertained to General Administration Cadre. Similarly F.C.I.
(Staff) (43rd Amendment) Regulations, 1977 was notified on 10.2.77 with respect
to Godown Cadre. The effect of the above amendments was to fix three years of
service for graduates and five years of service for matriculates as eligibility
validity f the amendments was challenged by four persons who were matriculates
working as AG III in O.P. 1138/79 on the file of the High Court of Kerala. A
learned Judge f that Court allowed the writ petition on 22.2.83 and quashed the
same. The Corporation filed W.A. 430/1983 before a Division Bench of that Court.
That appeal was withdrawn and dismissed. The 4th respondent in the writ
petition who represented the graduates had filed W.A. 433/83 and it was
similar writ petitions were filed before Andhra Pradesh High Court in W.P. Nos.
363 & 1168 of 1987 by non- graduates. Following the judgment of the Kerala
High Court referred to above, the Andhra Pradesh High Court allowed the writ
petitions. W.A. Nos. 905 & 907 of 1987 filed by the Corporation were
dismissed by a Division Bench on 15.7.87.
long delay the Corporation filed petitions for special leave in this Court.
This Court refused to condone the delay and dismissed S.L.P. (C) Nos.
9387-88/1988 on 9.4.90. The Corporation's review petitions R.P. No. 449/93 was
dismissed on 20.4.93.
Earlier in 1985, thirty non-graduates filed W.P.2835/85 on the file of the High
Court of Madras. That petition was dismissed by a single Judge on the ground
that identical matter was already pending in Kerala High Court.
Petitioners filed W.A. 757/88 against the same. When the appeal was being
heard, learned counsel for the Corporation stated on instructions that the
amendment was withdrawn and consequential reliefs were given to the petitioners
view of that statement, the Division Bench set aside the order passed in the
writ petition and observed that no reliefs need be given to the petitioners by
the Court. It was represented to the Bench that four of the writ petitioners
were not given relief by the Corporation. The Bench permitted them to approach
the authorities of the Corporation for appropriate reliefs. When such
representations were not considered favorably those petitioners filed Contempt
Application 301/91 to punish the officers of the Corporation for contempt. The
Zonal Manager of the Corporation who was the 1st respondent therein filed a
counter affidavit in which he stated in para 2 as follows:
is respectfully submitted that the 43rd Amendment though was resolved to be
withdrawn by the Board, the same was not withdrawn for want of Gazette
Notification to this effect." In para 4 the same averment was repeated. It
was further added :
Headquarters have instructed the Zonal Office to implement the judgment of the
Andhra Pradesh High Court in W.P. Nos. 363 & 1168 of 1987." The pendency
of some subsequent proceedings in Kerala High Court and an order passed therein
were cited as reasons for not complying with the order of the Madras High
Division Bench did not accept the contentions of the Corporation and issued
specific directions to promote the petitioners therein on the basis that the
43rd Amendment was withdrawn. Aggrieved thereby the Corporation filed SLP
16797/92 in this Court. We dismissed it by order dated 29.7.98.
the meanwhile a Division Bench of the Kerala High Court took up for hearing
W.A. 433/83 referred to by us in para 4 above. An order passed by the
Corporation on 13.7.90 was produced before the Bench. It was stated in that
order that a decision had been taken by the Southern Zone to implement the
judgment of the Andhra Pradesh High Court in respect of Southern Zone including
Kerala. In that situation the writ petitioners sought permission of the Court
to withdraw the writ petition itself. Referring to the same, the Bench observed
is in this background that Shri Dandapani the learned counsel for the
contesting respondents, who are the writ petitioners, sought permission to
withdraw the writ petition, O.P. No. 1138 of 1979 itself in the light of the
decision taken by the Food Corporation of India, to apply the decision of the
Andhra Pradesh High Court to the entire Southern Zone. Counsel for the Food
Corporation of India submitted that a decision having
been taken to repeal the impugned amendments and to restore the former
provisions which treated the degree holders and matriculates on par for further
promotion to the Cadre of Assistants Grade III, it becomes unnecessary for this
Court to examine the validity of the impugned amended rules. In this
background, we see not good reason for not according to the request of the
petitioners in the writ petitions to withdraw the writ petitions itself, the
corporation having taken the stand that the amended rules would be repealed and
not given effect to. In view f the decision of the Food Corporation of India, what would stand revived will be
the old rules." In such circumstances, the original writ petition was
dismissed as withdrawn and the judgment of the single judge was set aside
without expressing any opinion s to the correctness or otherwise thereof.
That order of the Kerala High Court was made on 26.11.90. On the same day, the
Zonal Office of the Corporation issued Office Order No. 461/90/Esttt. I in the
following terms :
to the disposal of SLP 9387-88 of 1988 by the Supreme Court in their order
dated 9.4.1990 and HQRS decision to withdraw the 43rd Amendment from the Food
Corporation of India (Staff) Regulations, 1971 vide
their telex message No. EP30 (10)/87 dated Nil July 1990 and Telex Massage No.
EP 16(4) dated 14.9.90, the following officials are deemed to have been
promoted provisionally to the post of Assistant Grade II (Deport) with effect
from the dates noted against each." [List of officials
to the retrospective promotion to the post of Assistant Grade II(Depot) the
above mentioned officials would be eligible for refixation of their pay on
notional basis, but eligible for payment of arrears only from the actual date
of joining in the post of Assistant Grade II (Depot). The seniority of the
above officials in the post of Assistant Grade II (Depot) would be refixed and
revised seniority list published shortly." Similarly another office Order
N. 462/90/Estt.I was issued on the same day with another list of officials
whose promotion was subject to Regional Vigilance Clearance.
petitioner in W.P.(C) No. 20 of 1992 who belongs to the Godown Cadre in the
South Zone has filed the writ petition challenging the said office orders.
Besides praying for declaration that the said Office Orders are null and void ab
initio, the petitioner prays also for declaring that the 30th and 43rd
amendments still survive in the statute book, for issue of a mandamus
restraining the respondents from rescinding the same and for declaring that the
seniority list as it existed on 31.12.89 continued to hold good without
prejudice to the content in of the petitioners that even the said list was not
Initially, the Corporation and the Zonal office (South Zone) of the Corporation
were only made parties to the writ petition. Some non-graduates got themselves impleaded
as respondents. By order dated 5.12.95, this Court, with a view to obviate
multiplicity of proceedings, directed the writ petitioner to implead some or
all of the non-graduates in the writ petition or some other non- graduates in a
representative capacity, i.e. representing the body of non-graduates in the
service of the Corporation all over the country. The petitioner filed an I.A.
and the same was ordered on 8.1.96.
Even in 1988, a writ petition viz. C.W.P. 7160/88 was filed in the High Court
of Punjab and Haryana by Some non-graduates challenging the seniority list
prepared on the basis of 30th Amendment of the Regulations. The validity of the
amendment was challenged. A single Judge of the High Court allowed the same by
judgment dated 8.11.89 following the first judgement of the Kerala High Court
and adopting the reasoning thereof. Some graduates were respondents therein.
They did not challenge the judgment. But the Corporation filed LPA 635/90
against the judgment. The same was dismissed on 28.7.92 by a Division Bench
which also pointed out that the graduate employees were not aggrieved by the
judgment of the single Judge and thus the controversy did not survive. The Corporated
has filed SLP(C) No. 7698 of 1993 against that judgment.
W.P.(C) No. 174/95 has been filed in this Court under Article 32, Constitutions
of India by some non- graduate employees who were appointed as typist/telephone
operators in 1971 t 1973 in the Northern Zone challenging the validity of the
amendments. According to them the Corporation having decided to implement the
decision of the Andhra Pradesh High Court in the South Zone cannot discriminate
against the employees in the other zones and apply the amended regulations to
All the above three matters are thus concerned with the same controversy
relating to the validity of the 30th and 43rd amendments of the regulations.
When these matters came up for hearing on 21.4.98, this Court took note of the
fact that the relevant material regarding the considerations which weighed with
the Corporation in making the change in amendments. On the other hand it was
stated repeatedly in the said counter affidavit that the Corporation had
decided to implement the judgment of the Andhra Pradesh High Court.
Paragraph 2 thereof, it was, averred, that Writ Appeal no. 430 of 1983 on the
file of the Kerala High Court was withdrawn persuant to the decision of the
Corporation to implement the judgment of the Andhra Pradesh High Court. It was
also stated that the revision of the seniority list persuant to the
implementation of the judgment of the Andhra Pradesh High Court could not be
completed on account of a subsequent order of the Kerala High Court. It should
be mentioned here that the subsequent order of the Kerala High Court which was
passed in another writ petition challenging the revised seniority list was only
to the effect that promotions made during the pendency of the writ petition
would be subject to the result thereof. In short, the Corporation did not
choose to place any material before the Court to justify the amendments.
Strangely, no other graduate employee excepting the petitioner in writ petition
no. 20 of 1992 has come before us to support the amendment.
observed by the Division Bench of the High Court of Punjab and Haryana, the
Judgment of the Single Judge of that High Court in writ petition 7160 of 1988
was not challenged by the graduate employees who were parties thereto. It was
only after this Court passed an order on 21.4.1998 directing the Corporation to
file an additional affidavit and place the relevant materials which weighed
with it in bringing about the impugned amendments, the Corporation filed an
affidavit as stated earlier.
the said affidavit, the following passages are relevant :- "It is
submitted that part-II of Appendix-I of the FCI (Staff) Regulations provided
that the mode of recruitment in the post of Assistant Garde-I as 100% promotion
failing which by direct recruitment and that the eligibility criteria was 3
years as Assistant Grade-II or Telex Operator. The mode of recruitment for the
post of Assistant Grade-II was 100% promotion failing which direct recruitment
and that the eligibility criteria is 3 years as Assistant Grade -III or as
Typist or as Telephone Operators. A copy of the said part-II of the Appendix-I
to FCI (Staff) Regulation, 1971 is annexed herewith and marked as Annexure -
A/A/-e. It is submitted that as such the Typists and Telephone Operators were
equated with Assistant Grade-III for the purpose of promotion to Assistant
Grade-II and the Telex Operators were treated at par with Assistant Grade-II
for the purposes of promotion to Assistant Grade-I. It is submitted that as
such not only promotional avenues were opened for the first time too Telex
Operators, Typist and Telephone Operators.
were till then available only for persons working as Assistant Grade-II or
Grade-III respectively). It is submitted that in other words, the promotional
avenues which were exclusively available to Assistant Grade-II or Grade-III
respectively, were now open to others, namely the Telex Operators, Telephone
Operators even without prescribing any quota for each of the categories made
eligible for such promotions. It is submitted that an anomalous situation had
arisen as a result, in as much as persons who are better qualified (minimum
qualifications for being appointed as Assistant Grade-III is graduation) were treated
equal to persons who are less qualified (minimum qualifications for appointment
as Telephone Operators or Typists is Matriculation) for the purposes of
promotion. It is submitted that the purpose of prescribing the minimum
qualification as Graduation for appointment as Assistant Grade-III got defeated
and in effect the entry point became `Matriculation' for those who entered the
cadre as Typists or Telephone Operators. It is submitted that it was realised
that it was not correct to equate the persons wh have higher academic
qualifications (graduation) needing 4 more years of academic pursuit with these
having lesser academic qualifications i.e. Matriculation.
submitted that as such, it was felt necessary either t create quotas or prescriber
higher experience for those who are academically less qualified."
is submitted that it was felt that the non-existence of any quota resulting in
treating the Typists or the Telephone Operators, who are generally Matriculate,
at per with Assistant Grade III (whose minimum qualification was Graduation),
was not only incorrect but also affected the efficiency of the ministerial
staff to a great extent." ...................................
is submitted that it was felt that the differential criteria should be provided
for the purpose of promotion for the category of Assistant Grade-III, Typist,
Telephone Operator since Assistant Grade-III are graduates and the Telephone
Operators, Typists are matriculates."
There is no attempt made in the affidavit to show that the nature of the work
in the posts of AG-I or AG-II was such that it requires higher efficiency which
could be expected only from graduates and not from non-graduates. In other
words, there is nothing in the said affidavit to establish a nexus between the
amendments and the alleged object of higher efficiency in the promotional posts
of AG-I or AG-II. In the counter affidavit filed by a non-graduate respondent
in the writ petition as early as in October, 1996, it was categorically stated
that the duties to be carried ut by the persons holding the posts of AG-I and
AG- II could be performed with equal efficiency by graduates as well as
non-graduates. It was stated that the nature of the work in the two posts did
not warrant a classification as graduates or non-graduates. It was pointed out
that all the posts of AG-I and AG-III are clerical, non-selectional and non
managerial. Along with the counter affidavit, the `job descriptions' of the
three posts was also filed as an annexure. A perusal thereof shows that the
nature of the work is not such as to make differentiation between graduates and
non-graduates. It is seen from the `job descriptions' that a person holding the
post of AG-III could be assigned with the same work as required to be performed
by AG-I and AG-II but under close and immediate supervision of the supervisor.
The Typists and Telephone operators are also expected to perform other duties
listed for AG-III as required by their superiors. It is thus clear from the
`job descriptions' that the duties performed by the typists and Telephone
Operators as well as AG-III are similar in nature excepting that the typists
and Telephone Operators are also attending to technical work on account of
their technical qualification. None of the above matters has been touched upon
by the Corporation in the additional affidavit filed as late as in May, 1998.
This aspect has been rightly commented upon by learned counsel of the
the counter affidavit filed on behalf of the non-graduates with our permission
in the course of hearing in reply to the additional affidavit of the
Corporation, it is reiterated that the non-graduates are performing the same
duties as the graduates. The following passages in the said counter affidavit
are relevant :- "The job description of Assistant Grade III and Assistant
Grade II annexed by the deponent in his counter affidavit filed in the writ
petition is marked as Annexure C-9 which is in the paper book of the writ
petition from page Nos. 394 to 410. No justification whatsoever has been
offered to the impugned amendments except a vague and self serving statement
that efficiency was "affected" or "vitiated" to a great exrtent.
The burden which the food Corporation of India was agreed to discharge was to
show how having regard to the nature of duties of the pst, efficiency was
affected. This burden has not even been attempted to be discharged.
picture presented in para 3 of the affidavit tends t present a misleading
picture as if the 30th amendment was introduced in order not to equate the
typists and telephone operators with such of those AG.III [Gen] who possess
qualification of graduation. These matriculate Asst. Gr.III [Gen] [Depot]
were/are performing the duties of AG.III on par with Assistants Gr. III who
possess qualification of Graduation. The duties and responsibilities of all the
AG.III are one and the same and the salary paid is also the same.
reiterated that the typists apart from typing work are also attending to the
work of AG.III as required in the job description.
very fact that the work of AG.III [G] [Depot] are being carried out smoothly
irrespective of officials possessing qualification f matriculation or
graduation until this day clearly demonstrates that the qualification of
matriculation is adequate to carry ut the nature of work prescribed for
Assistant Grade III [Gen] and Assistant Grade III [Depot]. The nature of work
prescribed in the job description vouches for this argument. It is also
submitted that had the FCI management not been satisfied with the efficiency of
the officials with qualification of matriculation as stated in the 3rd para of
the affidavit it would not have gradually enhanced the quota from 10% to 20%
and then to 30% for category IV employees [with minimum qualification of
matriculation] for promotion to the post of AG. III (annexed as Annexure A-I).
deponent further submits that prior tot he establishment of Food Corporation of
India, the employees were working in the Food Department and the entry level
post, i.e., Junior Clerk [which is equal to Assistant Grade - III] the
qualification prescribed was only matriculation."
it is relevant to mention that pursuant to the orders passed by the Kerala,
Madras and Punjab and Haryana High Courts and the Delhi High Court in its
Judgment dated 11.01.1994 and 04.06.1981 in C.W.P. No. 3599 of 1993 and 4681 of
1993, the respondent Food Corporation of India-North zone issued office order
dated 02.8.1995 and 11.08.1995 revising the seniority of Assistant Grade III
[Min]/Typists numbering about 1206 rectifying the injustice created by the
impugned amendments to the employees and similarly placed like the deponent in
the North Zone as per the old regulations and only the employees of South Zone
are suffering because of the inaction of the authorities in South Zone.
be relevant to mention that the revision is subject to the outcome of the
petitions pending before this Hon'ble Court. A copy of the office order dated
02.08.1995 and 11.08.1995 are annexed herewith and marked as ANNEXURE A-3
the respondent Food Corporation of India have annexed annexures to the
Additional Affidavit which are not at all relevant to the present dispute and
nothing has been shown by them which would require such amendments to be
carried out with retrospective effect. In fact, matriculates of FCI are holding
the jobs of Assistant Managers and Deputy Manager [General]/District managers
which is three and four steps respectively above the Assistant Grade-III level
which is the post in dispute in the present proceedings. It is also submitted
that the post of Assistant Manager and Deputy Manager are selection posts
whereas the post of AG.III and AG.II are non-selection posts.
clerical job of Assistant Grade III and Assistant Grade II can certainly be
performed by matriculates with utmost efficiency when persons are thrust for
such higher job, viz., Assistant Manager/Deputy Manager who are only matriculates.
Extracts of all India integrated seniority list of Assistant managers
[Gen]./Dept. as on 1984 is annexed as ANNEXURE A-4 and extract of all India
integrated seniority of Deputy Managers [Genl.]/District Managers is annexed as
counsel for the petitioner in the writ petition and learned counsel for the
Corporation have contended that the differentiation between a graduate and
non-graduate in the matter of promotion is valid and in this case the same has
been done by the impugned amendments in order to achieve higher administrative
efficiency. Per contra the submissions made by a learned counsel for non-
graduates are three fold :
The amendments are arbitrary in the facts and circumstances of this case and violative
of Articles 14 and 16 of the Constitution.
The amendments are invalid in so far as they are given retrospective effect so
as to affect the promotion of non- graduates who became eligible for
consideration for promotion by completing three years service as AG-III, Typist
or Telephone operator before the amendment of the regulations.
The amendments should be read down to apply only to non-graduates who are
working as Typists or Telephone operators and not to those who were working as
AG. III having been promoted as such from category IV. The aforesaid second and
third contention have been advanced only in the alternative to the first
Our attention has been drawn to S.L. SACHDEV AND ANOTHER VERSUS UNION OF INDIA
AND OTHERS (1980) 4 SCC 562.
held therein that once cadre is formed by recruiting persons drawn from
different departments of the Government, there would normally be no
justification for discriminating between them by subjecting one class to more
onerous terms in the matter of promotional chances. It is observed that
different tests should not be prescribed for determining their respective
promotional opportunities and that too solely with reference to the source from
which they were drawn. It was found on the facts that the duties, functions and
responsibilities of all the UDCs in the Saving Banks Control Organisation and
Savings Bank Interval Check Organization were identical and they were all in
the same cadre drawing the same pay in the same grade and therefore different tests
should not b laid for their promotion.
Learned counsel for the non-graduates referred to Kumari Shrilekha Vidyarthi
and Other Versus State o U.P. and Others (1991) 1 SCC 212, wherein it was held
that once it is shown that the impugned State action is uniformed by reason in
as much as there is not discernible principle on which it is based, the burden
would shift to the State to repel the attack by disclosing the material and
reasons which held to the action being taken in order to show that it was an
informed decision which was reasonable.
is by now settled by several decisions of this Court that educational
qualification is a proper basis of classification for promotion. In the State
of Jammu & Kashmir Versus Shri Triloki Nath Khosa and Others (1974) 1 SCC
19, it was held that classification on the basis of educational qualifications
made with a view to achieving administrative efficiency can not be said to rest
on any fortuitous circumstance. The Constitution Bench which decided the case took
care to add that one has always to bear in mind the facts and circumstances of
the case in order to judge the validity of a classification.
Mohammad Shujat Ali and Others Versus Union of India and Others (1975) 3 SCC
76, another Constitution Bench referred to the earlier rulings of this Court
including Triloki Nath Khosa & Others (1974) 1 SCC 19 and stated the law thus
from these decisions it cannot be laid down as an invariable rule that whenever
any classification is made on the basis of variant educational qualifications,
such classification must be held to be valid, irrespective of the nature and
purposes 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 a has to be
applied in such case on its peculiar facts and circumstances."
Punjab State Electricity Board, Patiala & Another Versus Ravinder Kumar
Sharma & Others (1986) 4 SCC 617, the challenge was of fixation of quota
between diploma holders and non-diploma holders among linemen for promotion to
Line Superintendent. Placing reliance on a passage in the judgment in Mohd. Shujat
Ali & Ors. vs. U.O.I. & Ors. (1975) 3 SCC 76, the Curt upheld the
judgment of the High Court and the courts below which struck down the fixation
of quota for promotion. The Bench did not however, make any reference to Trilki
Nath Khsa & Ors. (1974) 1 SCC 19. Authority & Ors. 1989 Supp. (1) SCC
116, this Court considered all the earlier cases n the subject and held that
prescription of a longer period of experience for the diploma holders to be
eligible for promotion to a cadre to be made from graduates and diploma holders
was not violative of equality class. On the facts it was found that a report of
an Expert Committee was taken into consideration for prescribing the requisite
qualification. The Court took note of the fact that there may be cases where
the differences in the educational qualification may not be sufficient to give
any preferential treatment to one class of candidates as against anther. The
Court said that whether the classification is reasonable or not must necessarily
depend upon facts f each case and the circumstances obtaining at the relevant
1989 (Supp (2) SCC 344, the Court held that ordinarily it is for the Government
to decide upon the consideration which in its judgment should underlie a policy
to be formulated by it. But if the considerations are such as prove to be of no
relevance to the object of the measure framed by the government it is always
open to the court to strike down the differentiation as being violative of
Articles 14 and 16. On the facts of the case it was found that the conditions
of employment and the incidents of service recognised no distinction between
graduate and non- graduate officers and for all material purposes they were
effectively treated as equivalent. It was pointed out that the history of the
evolution of the Kerala Excise and Prohibition Subordinate Service had shown no
uniformity either in approach or in object and that a consistent or coherent
policy in favour of graduates was absent. It was also pointed that the cadre was
one and graduates and non- graduates were equal members of the same. Their pay
was found to be the same and the nature of the duties whether graduate or
non-graduate was identical. Hence, it was held that the prescription of ratio
dividing the quota of promotion between graduates and non-graduates was invalid
as it violated of Articles 14 and 16 of the Constitution.
(1993) 2 SCC 340, this Court pointed out that since the decision in Triloki Nath
Khosa & Ors. (1974) 1 SCC 19 this Curt had been holding uniformly that even
where direct recruits and promotees were integrated into a common class, they
could for purposes of promotion to the higher cadre be classified on the basis
of educational qualifications. On the facts, it was found that the degree holders
and diploma holders represented two different categories and since 1969 they
were treated differently in the matter of pay, designation and in the matter of
promotion though they were discharging identical functions and duties. It was
also found that the ratio 3:1 had been in vogue between graduates and diploma
holders since prior to 1965 and it was therefore permissible to the rule making
authority if it thought it necessary in the interest f administration to limit
the promotional chances of non-graduates to one out of four vacancies on the
basis of academic qualifications.
& Drainage Board & Ors. (1994) 6 SCC 282, this Court reiterated that
higher educational qualification is a permissible basis of classification but
the acceptability thereof will depend on the facts and circumstance of each
case. In that case it was found that differentiation between degree holders and
diploma holders was ancient and the former were given different designation and
Gazetted status and higher scale of pay whereas diploma holders did not have
such benefits. In such circumstances the Court Said :
aforesaid shows that higher educational qualification has relevance insofar as
the holding of higher promotional post is concerned, in view of the nature of
the functions and duties attached to that post. The classification has,
therefore, nexus with the object to be achieved. This apart history also
supports the differentiation sought to be made by the rule in question. We,
therefore, uphold the classification as valid."
One of us (Justice Agrawal) spoke for the Division Bench which decided
Rajasthan State Electricity Board Electricity Board & Anr. (1997) 3 SCC
103. The entire case law was traced in the judgment and it was held that
educational qualifications could be made the basis for classification of
employees in State Service in the matter of pay scales, promotion, etc. On the
fact a and circumstances of that case, the court upheld a reservation of 25%
vacancies for candidates possessing the prescribed additional qualifications
and prescription on longer length of service for those who did not possess such
qualifications for the purpose of promotion.
analysis of the aforesaid rulings shows that the validity of the classification
has to be judged on the facts and circumstances of each case. We have already
pointed out that in the facts of the present case no material has been placed
before us by the Corporation to Justify the amendments introducing a
classification between graduates and non-graduates. We have also referred to
the conduct of the Corporation which chose to accept the judgment of Andhra
Pradesh High Court an d implement the same on the basis of which the Board
decided to withdraw the amendments and representations were made to that effect
in the High Courts of Kerala and Madras. As stated earlier, even in the affidavits filed in this Court, the
Corporation has referred to the decision of the Board to withdraw the
such circumstances we hold that the amendments to the Regulations making a
differentiation between graduates and non-graduates in the matter of promotion
for the posts of AG-I and AG-II offend the equality clause and are therefore
the view we have expressed above it is unnecessary for us to consider the
alternative contentions put forward by the non-graduates with reference to the
retrospective operation of the rule and the non- applicability of the rule to
non-graduates holding the posts of AG-III. We would, however, for the sake of
completion set out the list of decisions cited by learned counsel in support of
the contention that the amendments are invalid insofar as they seek to have
retrospective affect :
T.R. Kapur and Others Versus State of Haryana & Ors. 1986 (Supp) SCC 584.
P.D. Aggarwal and Others Versus State of U.P. and Others (1987) 3 SCC 622.
Narayanan and Others versus State of Karnataka and Others 1994 Supp. (1) SCC 44
Union of India and Others versus Tushar Ranjan Mohanty and Others (1994) 5 SCC
Chairman, Railway Board and Others versus C.R. Rangadhamaiah and Others (1997)
6 SCC 623.
The last of the above cases has been decided by the Constitution Bench in which
on of us (justice Agrawal) was member and he spoke for the Bench. It will be
advantageous to quote the following passage in that judgment.
many of these decisions the expressions "vested rights" or
"accrued rights" have been used while striking down the impugned
provisions which had been given retrospective operation so as to have an
adverse effect in the matter of promotion, seniority, substantive appointment,
etc., of the employees. The said expressions have been used in the context of a
right flowing under the relevant rule which was sought to be altered with
effect from an anterior date and thereby taking away the benefits available
under the rule in force at that time. It has been held that such an amendment
having retrospective operation which has the effect of taking away a benefit
already available to the employee under the existing rule is arbitrary,
discriminatory and violative of the rights guaranteed under Article 14 and 16
of the Constitution."
the principle laid down in the above judgment is applied here, there is no
doubt that the impugned amendments in the present case can not operate
the result, the impugned amendments are struck down as unconstitutional. The
appeal filed by the Corporation and the Writ Petition (C) No. 20 of 1992 fail
and are hereby dismissed. In Writ Petition No. 174 of 1995 prayer B is
unnecessary and therefore negatived. The parties will bear their respective