Kuldeep
Kumar Gupta & Ors Vs. H.P.S.E.B. & Ors [2000] INSC 650 (12 December
2000)
G.B.Pattanaik,
B.N.Agrwal
L.I.T.J
PATTANAIK,J.
These
appeals are directed against the order of the Himachal Pradesh Administrative
Tribunal, disposing of O.A.
No.
276/87 with O.A. No.226 of 1989. The applicants before the tribunal were Junior
Engineers, working in Himachal Pradesh State Electricity Board. The dispute
centres round the question as to whether it is permissible for the employer to
frame Regulations, providing a separate quota of promotional avenues for the
less qualified junior Engineers in preference to the claim of the qualified
diploma holder Junior Engineers. The feeder category for promotion to the post of
Assistant Engineer is Junior Engineer. In the cadre of Junior Engineer, 95% of
the vacancies are filled up by direct recruitment of persons, who are diploma
holders and only 5% is by promotion from amongst the lower category, who are
usually matriculates with I.T.I.certificate. So far as the promotion to the
post of Assistant Engineers is concerned, the Board has been amending the
promotion Regulation from time to time, providing for a ratio between the
direct recruits and promotees and again, further providing a quota within the
promotion quota, to be filled up by Junior Engineers(qualified) and Junior
Engineers(unqualified). The original Regulation of the year 1973 has been
amended from time to time in 1979, 1983 and 1986 and under the 1986 Regulations,
46% of the posts in the cadre of Assistant Engineer was available in promotion
quota and out of the same, 28% were to be filled up by Junior Engineers
(qualified), 8% by Junior Engineers(unqualified), 6% from amongst those who
have passed Section A and B examination of the Institute of Engineers(service)
and 4% from Draftsman.
It may
thus be noticed that from the inception of the service, a specified percentage
of quota has been made available in the promotional cadre of Assistant Engineer
for the unqualified Junior Engineers notwithstanding the fact that Junior
Engineers form one cadre. In December, 1987, the direct recruits qualified
Junior Engineers filed application before the Himachal Pradesh Administrative
Tribunal, praying for quashing of the quota rule vis-a-vis them and the
unqualified Junior Engineers, essentially on the ground that there has been a
total integration of both categories of Junior Engineers and they discharge
identical functions, their duties being interchangeable and inter-transferable
and from the fused cadre, it is not permissible to provide a different quota
for promotion to the higher post and the said provision must be held to be
arbitrary and irrational and as such is liable to be struck down. The Board
took a decision to prepare separate seniority list of the Junior Engineers,
which is the feeder category for promotion to the post of Assistant Engineer.
The
separate seniority list in the cadre of Junior Engineer, one for diploma holder
Junior Engineers and another for unqualified Junior Engineers was prepared in
November, 1989.
As by
preparation of such seniority list, the original application filed by the
direct recruit qualified Junior Engineers before the tribunal became
infructuous, they approached this Court in Special Leave Petition No.1072/89.
A
petition under Article 32 was also filed, which was registered as Writ Petition
No. 91/89, challenging the self- same issue of preparation of two seniority
lists.
Notwithstanding
the filing of Special Leave Petition in this Court, a separate application was
filed before the tribunal also, which stood registered as O.A.No. 226/89,
challenging the issue of separate seniority lists. The Special Leave Petition
filed in this Court stood disposed of by order dated 5.10.1993 with the directions
that pending applications before the Administrative tribunal should be disposed
of within six months. The tribunal ultimately disposed of the applications
filed before it by order dated 29.9.1995. Out of the three members of the
tribunal, the majority judgment upheld the validity of the Regulations,
providing for a different quota for promotion in respect of the unqualified
Junior Engineers inter alia on the ground that it is permissible for the
employer to provide for promotion on the basis of educational qualification and
the Junior Engineers who are matriculates and I.T.I. qualified from a different
class, than the direct recruit diploma holder Junior Engineers, who are
otherwise called qualified Junior Engineers and this position has been maintained
right from the inception of the service and the Regulation providing such a
position cannot be held to be arbitrary or discriminatory. The minority view
was that of Vice Chairman, Shri M.G. Chitkara, who came to the conclusion that
there has been a complete fusion between qualified and unqualified Junior
Engineers and after such fusion, it is not legally permissible to provide a
different quota for promotion to the post of Assistant Engineer. The
applications before the tribunal having been dismissed in view of the majority
judgment, the present appeals have been filed by the direct recruits qualified
Junior Engineers.
Mr.
Gopal Subramanium, the learned senior counsel, appearing for the appellants,
contended with vehemence that the Junior Engineers, having formed a cadre,
people from two different sources being brought to the cadre namely the direct
recruit qualified diploma holders and the promotee matriculate I.T.I.
certificate persons, there cannot be any further differentiation amongst them,
providing for quota for promotional post and the Regulation providing such
quota must be struck down as violative of Article 14 and 16 of the
Constitution. In support of this contention, the learned senior counsel relied
upon Roshan Lal Tandon, 1968(1) SCR 185, Mervyn Coutindo, 1966(3) SCC 600 and
Mohd. Shujat ali, 1975 (5) SCC 76. Mr. Subramanium also further contended that
in the cadre of Junior Engineer, which is the feeder cadre for promotion to the
post of Assistant Engineer, a common seniority list having been drawn up, the
employer cannot only for the purpose of promotion, direct preparation of two
seniority lists and such a direction violates the equality clause, engrafted in
Article 16 of the Constitution. The learned counsel also urged that except in
cases where constitution itself provides for a reservation in favour of a
specified group of people, as provided in Article 16(4), there cannot be a
reservation by any other mode and providing a quota in favour of unqualified
Junior Engineers, tantamounts to reservation in their favour, which is not
constitutionally permissible. According to the learned counsel, prescribing a
quota in the promotional cadre itself is discriminatory and the decision of
this Court in Murugesan, 1993(2) SCC 340, will have no application to the facts
and circumstances of the present case.
Mr.
V.A.Bobde, the learned senior counsel, appearing for the Board-respondent, on
the other hand contended that right from the inception of the Regulations in
December, 1973, the diploma holder direct recruits and the unqualified
matriculate Junior Engineers have been treated differently and there has all
along been a specified percentage of posts in the cadre of Assistant Engineer,
made available to such qualified matriculate Junior Engineers, though such
quota has been increased from time to time, depending upon the cadre strength
and chances of promotion of such unqualified Junior Engineers and this being
the position, the said Regulation cannot be struck down. According to Mr.
Bobde, the Regulation, itself by suitable provisions balances the equity
amongst the qualified diploma holder Junior Engineers and unqualified
matriculate Junior Engineers, inasmuch as for a diploma holder Junior Engineer,
mere seven years of service as Junior Engineer is sufficient for consideration
of promotion to the post of Assistant Engineer, whereas in case of unqualified
matriculate Junior Engineers, it is twelve and fifteen years of service, that
is necessary. The Rule making authority have specified this condition notwithstanding
the fact that all of them have been working as Junior Engineers. According to
Mr. Bobde, the Regulation itself considers the diploma holder qualified Junior
Engineers and matriculate unqualified Junior Engineers differently, obviously
depending upon their respective qualification and such a differential treatment
is permissible and does not violate Article 14 of the Constitution, as has been
held by this Court in Murugesan, 1993(2) SCC 340 as well as in the case of
S.N.Deshpande vs.
Maharashtra I.D. Corpn., 1993 (Supp.) 2 SCC
194. Mr.
Bobde
also urged that the direction to have two seniority lists is obviously
dependant upon the provisions of separate quota for promotion to the post of
Assistant Engineer, depending upon their basic qualification and the object of
such direction is to have competition amongst equals and this is permissible
under the Constitution. According to Mr. Bobde, providing quota for different
category of persons available in the feeder cadre for promotion to the higher
cadre only effectuates the guarantee of equal opportunity, enshrined in Article
16(1) and such a provision cannot be held to be reservation, as contemplated
under Article 16(4). The learned counsel urged that the employer is duty bound
to see that stagnation at a particular stage is avoided, if possible, which is
conducive for the Administration and with that point in view, fixing of quotas
to ensure an efficient service is a matter of policy for the employer to decide
and unless the decision is arbitrary or irrational, cannot be interfered with
by the Court, and therefore the majority judgment of the tribunal is
unassailable.
Before
we examine the correctness of the rival submissions, it would be appropriate
for us to notice that under the provisions of Electricity (Supply) Act, a set
of Regulation have been framed called the Himachal Pradesh State Electricity
Board Regulation (relating to Recruitment and Promotion to the post of Junior
Engineer) and this Regulation has been amended from time to time but such amendments
are only in altering the percentage of posts available to different category of
people. The Himachal Pradesh State Electricity Board has farmed the Regulations
in exercise of power conferred under Section 79(c) and Section 15 of the
Electricity (Supply) Act called the Recruitment and Promotion Regulations for
the posts of Assistant Engineers and above and the said regulations also have
all along provided a definite percentage of posts, meant for unqualified Junior
Engineers having a specified years of regular service. Thus right from
inception of the Board, a quota has been fixed in the cadre of Assistant
Engineer for the unqualified matriculate Junior Engineers.
The
aforesaid history in the formation of service of Engineers under the
Electricity Board should be borne in mind while deciding the question of law
raised in these appeals.
From
the facts asserted and the contentions raised in these appeals, following
questions really arise for our consideration: 1. The feeder cadre of Junior
Engineers, having been filled up from two recruitment sources, one by qualified
diploma holders by way of direct recruitment and the other by unqualified
matriculate I.T.I. Certificate holders by promotion, can there be a separate
consideration for them in the matter of promotion to the post of Assistant
Engineer and whether such separate consideration violates any constitutional
mandate? 2. Providing a quota in the promotional cadre, whether can be said to
be a reservation within the meaning of Article 16(4) and as such can it be held
to be violative of Article 16(4) of the Constitution?
3.
Administrative efficiency being the consideration, though it may be permissible
to have a specified percentage of posts in the promotional quota on the basis
of educational qualification, as held in Murugesan, can it be held to be
violative of Articles 14 and 16, when such a quota is meant for unqualified
persons in the feeder category? So far as the first question is concerned, it
is no doubt true that in earlier decisions of this Court in Roshan Lal Tandon,
1968(1) SCR 185 and Mervyn Coutindo, 1966(3)SCC 600, this Court has held that
once the direct recruits and promotees were absorbed in one cadre, they form
one class and they could not be discriminated against, for the purpose of further
promotion to the higher grade. But this view has not been found favour with in
the later Constitution Bench decision in Triloki Nath Khosa, 1974(1) SCC 19. It
has been laid down in the aforesaid case that even where direct recruits and
promotees are integrated into a common class, they could, for the purpose of
promotion to the higher cadre be classified on the basis of educational
qualification. It was held by this Court in Triloki Nath that classification in
matters of promotion with academic or technical qualification as basis is a
matter for legislative determination and such a classification is permissible
unless it is found to be unjust on the face of it and the onus lies upon the
party attacking the classification to show by pleadings the necessary material
before the Court that the said classification is unreasonable and violative of
Article 16. It is in that context the Court further observed that
discrimination is the essence of classification and does violence to the
constitutional guarantee of equality only if it rests on an unreasonable basis
and that being the position, it would be for the party assailing such
classification to establish that the classification is unreasonable and bears
no rational nexus with its purported object. In the absence of furnishing
necessary particulars, it must be construed that the plea of unlawful
discrimination had no basis. In Triloki Nath, a word of caution has been
indicated that the right to classify is hedged in with salient restraints.
Classification
must be truly founded on substantial differences which distinguish person
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 and judicial scrutiny 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 embarking upon a nice or mathematical
evaluation on the basis of classification. In Triloki Nath, the court held that
Roshan Lals case is no authority for the proposition that there cannot be a
classification for the purpose of promotion on a basis other than the one that
they were drawn from different sources.
Triloki
Nath, thus distinguishes both the earlier decision in Mervyn Coutindo and Rohan
Lal Tandon. Trilokinath has been followed in Murugesan , where this Court held
that it would be open for the rule making authority, having regard to the
efficiency of the administration and other relevant circumstances to restrict
the chance of promotion of the less qualified people in the feeder category. In
Murugesan, the Court upheld the quota in the matter of promotion in favour of
graduate engineers. It may be noticed that in Murugesan, the Court over-ruled the
earlier decision in the Punjab State Electricity Board, 1986(4) SCC 617
distinguished in Abdul Basheers case, 1989 Supp.(2) SCC 344. The contention of
Mr. Subramanium, is no doubt that there can be a classification in favour of
the qualified people having regard to the efficiency of the administration but
a classification in the manner of providing a quota for unqualified people
cannot be held to be in the interest of administration and, therefore, cannot
be sustained on the principles of Murugesan. We are unable to accept this
contention of the learned counsel for the appellants. Once a classification is
permissible notwithstanding that the feeder category is one, when the said
classification is challenged being discriminatory, then unless and until sufficient
materials are produced and it is established that it is unjust on the face of
it by the persons assailing the classification, the Court would be justified in
coming to the conclusion that such plea of unlawful discrimination had no
basis, as was observed in Triloki Nath. Adjudged from the aforesaid stand point
when the pleadings in the case in hand are examined, we do not find any
materials to sustain the plea of discrimination raised by the appellants, who
are direct recruits diploma holder Junior Engineers. In the case in hand, the
Regulations from time to time on being examined, unequivocally show that right
from the inception, quota has been provided for promotion in favour of the
unqualified promotee Junior Engineers, though the quota has been changed from
time to time and while providing such quota, the longer experience as Junior
Engineer has been the basis for being eligible for promotion. Providing such a
quota in the service history right from inception is also a germane
consideration for the Court, while considering the question of alleged
discrimination. That apart when the feeder category itself is filled up by
direct recruit diploma holders and promotee unqualified matriculates and if no
quota is provided for such unqualified matriculates in the promotional cadre of
Assistant Engineer then they may stagnate at that stage which will not be in
the interest of administration. If the rule making authority on consideration
of such stagnation, provides a quota for such unqualified promotee Junior Engineers,
the same cannot be held to be violative of any constitutional mandate and on
the other hand would come within the ratio of Murugesan. In our considered
opinion, therefore, there can be a separate consideration for the promotee
unqualified matriculate Junior Engineers in the matter of promotion to the post
of Assistant Engineer and the impugned Regulation providing a quota for them
cannot be held to be violative of Article 14.
So far
as the second question is concerned, we are unable to persuade ourselves to
agree with the submission of Mr. Subramanium that providing a quota tantamounts
to reservation. Article 16 deals with equality of opportunity in matters of
public employment and Article 16(4) enables the State from making any provision
for reservation of appointments or posts in favour of any backward class of
citizens which in the opinion of the State is not adequately represented in the
services under the State. This Court in Indira Sawhneys case has held that no
such reservation is permissible in the promotional posts and to get over the
said decision Article 16(4A) has been inserted by the Constitution (Seventy
seventh Amendment) Act. But we fail to understand as to how providing a quota
for a specified category of personnel in the promotional post can be held to be
a reservation within the ambit of Article 16(4).
Providing
a quota is not new in the service jurisprudence and whenever the feeder
category itself consists of different category of persons and when they are
considered for any promotion, the employer fixes a quota for each category so
that the promotional cadre would be equi-balanced and at the same time each
category of persons in feeder category would get the opportunity of being
considered for promotion. This is also in a sense in the larger interest of the
administration when it is the employer, who is best suited to decide the
percentage of posts in the promotional cadre, which can be earmarked for
different category of persons. In other words this provision actually
effectuates the constitutional mandate engrafted in Article 16(1), as it would
offer equality of opportunity in the matters relating to employment and it
would not be the monopoly of a specified category of persons in the feeder
category to get promotions. We, therefore, do not find any infraction of the
Constitutional provision engrafted in Article 16(4) while providing a quota in
promotional cadre, as in our view it does not tantamount to reservation.
So far
as the third question is concerned, if it is permissible to have a specified
percentage of posts on the basis of educational qualification, as has been held
by this Court in Murugesan, we really fail to understand, as to why employer or
the rule making authority would be debarred to allot a specific percentage in favour
of unqualified matriculate promotee Junior Engineers. The Regulation provides
that out of 46% of promotional quota in the cadre of Assistant Engineer, 28%
will be available for qualified diploma holder Junior Engineers and 8% would be
for unqualified matriculate Junior Engineers, 6% meant for A and B passed and
4% for draftsman. According to Mr.
Subramanium
the quota available for A and B and Draftsman could come within the ambit of
the decision of this Court in Triloki Nath or Murugesan, but not the respondents-
unqualified matriculate Junior Engineers in whose favour 8% quota has been
fixed. We are unable to accept this contention of the learned counsel. It may
be noticed at this stage that so far as the unqualified Junior Engineers are
concerned those of them who possess I.T.I.
qualification
must have twelve years of service in the grade for being eligible for promotion
to the Assistant Engineers and those who are merely matriculates and without
I.T.I.
qualification,
must have fifteen years of service in the grade for being eligible for
promotion to the post of Assistant Engineer. These unqualified Junior Engineers
have been brought to the cadre of Junior Engineers by promotion and in most
cases they can maximum aspire to retire as Assistant Engineers. If the rule
making authority considers that the stagnation at the stage of Junior Engineer
will not be conducive for administration and provides the promotional avenue
for them, by providing a quota in the promotional cadre and the service history
itself indicates that such provision has been made right from the inception, we
see really no constitutional infraction therein, so as to be interfered with by
this Court. We, therefore, do not find any substance in submission of Mr.
Subramanium on this Score and in our considered opinion there is no bar for
providing a quota in the promotional post, even in favour of unqualified
matriculate Junior Engineers.
In the
aforesaid premises, these appeals fail and are dismissed.
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