Full Judgment Text
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PETITIONER:
STATE OF GUJARAT
Vs.
RESPONDENT:
C. G. DESAI AND OTHERS
DATE OF JUDGMENT13/11/1973
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
KRISHNAIYER, V.R.
CITATION:
1974 AIR 246 1974 SCR (2) 255
1974 SCC (1) 188
CITATOR INFO :
R 1980 SC1185 (1,5)
R 1987 SC 424 (22)
R 1987 SC1676 (27)
D 1990 SC1607 (17)
ACT:
Engineering Service-Bombay Engineering Service Rules,
1960--Rule 7(ii)-Direct recruits demanded their pre-
selection service counted for the purpose of promotion If
permissible-Whether Art. 16 of the Constitution violated.
HEADNOTE:
Respondent No. 1 was officiating as Deputy Engineer from May
16, 1955 to December 3, 1959 in the P.W.D. of the then State
of Bombay. Thereafter, he was selected by competitive
examination and appointed to a post in B.S.F. Class-11
Service. Under the Engineering Service Rules, 1960, a
direct recruit is required to undergo training for one year
and thereafter to work on probation for another year as in-
charge of a sub-division. Since respondent No. 1 had
already worked as officiating Deputy Engineer, the initial
period of one year’s training was dispensed with and he was
directly placed in-charge of a subdivision. After
completion of 2 years, he was confirmed as Deputy Engineer
in Class-11 from December 3, 1961.
In June 1961. the Committee appointed to prepare t select list
of Deputy Engineers for promotion as officiating
Executive Engineers, did not consider respondent No. 1 for
promotion because he had not put in 7 years (reduced to 6
years in 1961) service requisite under rule 7(ii) for such
promotion. The Government’s stand was that the service
rendered by the direct recruits prior to their appointment
to Class-11 could not be taken into account in computing
their eligibility service of 7 years. The case of
respondent no. 1 was that under the Rules, his pre-
selection service (from 16-5-1955 to 2-12-1959), must be
tacked on to his past-selection service for calculating the
requisite period of his eligibility service.
In the case of respondents Nos. 2 and 3 also. the Government
did not count the period of their pre-selection service for
the purpose of their eligibility services and hence the
dispute.
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The High Court found that the differentiation made by the
Government in the application of the rules, had no
reasonable nexus with the object of promotion and the action
of the Government was discriminatory and so violative of
Art. 16 of the Constitution. On appeal, the question for
consideration was whether the action of the State Government
in treating ’differently’ the promoters and direct recruits
in Class-11 for the purpose of computing the period of their
eligibility service requisite for promotion as officiating
Executive Engineers, violates the constitutional guarantee
of equal treatment enshrined in Art. 16 of the Constitution.
Allowing the appeal,
HELD (i) It is manifest that direct recruits and promotees
in class constitute two distinct groups or classes. This
classification has a historical background and a rational
basis. The promotees from the lower ranks have only one
chance of getting into Class-11 service, as against three
available to the direct recruits. Further, for a
considerable time, recruitment by promotion from the ranks
of temporary officiating Deputy Engineers etc., to Class-11
service remained frozen with consequent stagnation and loss
of incentive in the service’ At the time of their entry into
Class-11 service, the promotees are, broadly speaking, far
older than the direct recruits, and many of the promotees
may have less than 7 years to go before attaining the age of
superannuation. If in the case of both these groups of
promotees and direct recruits with different backgrounds and
dissimilar circumstances, the period of 7 years eligibility
service were to start from the date of their absorption in
Class-III then for most of the promotees, there would be a
rare chance of ever getting promotion as officiating
Executive Engineers. The classification is thus based on
intelligible differential.
256
(ii)If a person, like any of the respondents, to avoid the
long tortuous wait leave his position in the "never ending"
queue of temporary officiating Deputy Engineers etc.,
looking for promotion and takes a short-cut through the
direct channel to Class 11 service he gives up once for all,
the advantages and disadvantages that go with the channel of
promotion and accepts all the handicaps and benefits which
attach to the group of direct recruits. He cannot, after
his direct recruitment, claim the benefit of his pre-
selection service and thus have best of both the worlds. It
is well settled that so long as the classification is
reasonable and the persons falling in the same class are
treated alike, there is no question of violation of the
constitutional guarantee of equal treatment. [261D]
Gangaram v. Union of India, [1970] 3 S.C.R. 481, referred
to.
(iii) The select list is prepared on the basis of
’seniority-cum-merit’ and the inter-se seniority of the
selected officers in the lower ranks is ordinarily to be
maintained in the promoted ranks. Acceptance of the
respondent’s contention will make the smooth working and
uniform application of this principle of seniority-cummerit
difficult. The inter-se seniority of the selected officers
will be seriously disturbed and the Department will be faced
with the anomalous situation of ajunior officer, with pre-
selection service, becoming eligible to be considered for
promotion over the head of his seniors. even in the same
group, havingno such fortuitous pre-selection service to
their credit. There is nothing inrule 7(ii) which compels
the interpretation that in the case of direct recruits also.
their pre-selection service as officiating Deputy Engineers,
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if any, should be counted towards their "eligibility
service". Such an interpretation would create two classes
even amongst direct recruits and thus result in inequality
of treatment rather than in removing it. Under the
circumstances, it cannot be said that the respondents
possessed the required length of service in Class-11 to be
entitled to promotion along with others. [262C]
Prabhakar Yeshwant Joshi v. State of Maharashtra, [1970] 2
S.C. referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2170 of
1970.
Appeal by special leave from the judgment and order dated
1/2-5-69 of the Gujarat High Court at Ahmedabad in Special
Civil Application No. 1221 of 1968.
M. C. Bhandare and S. P. Nayor, for the appellant.
Y. S. Chitale, V. N. Ganpule and P. C. Kapur, for the
respondents.
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by special leave by the State is
directed against the judgment and order, dated November 24,
1970, of the High Court of Gujarat allowing a writ petition
of (1) C. G. Desai; (2) B. L. Joshi and (3) H. N. Shah filed
under Article 226 of the Constitution. The material facts
are not in dispute and may now be stated
Respondent No. 1 herein (original petitioner No. 1) was
officiating’ as Deputy Engineer since May 16, 1955, in the
P.W.D. Department of the then State of Bombay and he
continued in service as such until on December 3, 1959, he
was selected and appointed as a result of thE competitive
examination held by the Public Service Commission, to a post
in B.S.E. Class 11 Service. Under the Engineering Service
Rules, 1960 (hereinafter called 1960 Rules), a direct
recruit is required to undergo training for a period not
exceeding one year and thereafter to work on probation as
in-charge of a Sub-Division for a further period of one
year. Since Respondent No. 1 had already worked as
officiating
257
Deputy Engineer, the initial period of one year’s training
in his case was dispensed with and he was directly placed
in-charge of a Sub-Division. On completion of his two
years’ probation he was confirmed as Deputy Engineer in
Class 11 with effect from December 3, 1961. Sometime in
June, 1961, a Committee appointed by the State Government
prepared a select-list of Deputy Engineers for promotion as
officiating Executive Engineers; but the case of Respondent
No. 1 was not considered for the reason that he had not put
in 7 years (reduced to 6 years in 1961) service requisite
under Rule 7(ii) for such promotion (hereinafter, for short,
called eligibility service’). The Government’s stand was
that in the case of Deputy Engineers directly recruited
through a competitive examination held by the Public Service
Commission, service, if any, rendered by them as officiating
Deputy Engineers prior to their appointment to Class 11
(hereafter called ’pre-selection service’) could not be
taken into account in computing their eligibility service.
The case of Respondent No. 1 herein was that this stand of
the Government was wrong and, under the relevant Rules his
pre-selection service (from 16-5-1955 to 2-12-1959) as
officiating Deputy Engineer had to be tacked on to his post-
selection service for calculating the requisite period of
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his eligibility service. When the next select-list was
prepared in the year 1963, Respondent No. 1 was included in
that list and, in consequence, promoted as officiating
Executive Engineer. Since then he has been working as such
in the promoted rank.
Respondents Nos. 2 and 3 herein (original petitioners Nos. 2
and 3) were promoted as Deputy Engineers on July 8. 1957,
and September 28, 1957, respectively. They continued to
Work in the at capacity till December 3, 1959, when they,
too like Respondent No. 1 were directly recruited as Deputy
Engineers in Class 11 Service as a result of the competitive
examination held by the public Service Commission. On com-
pletion of their probationary period of two years, they were
confirmed as Deputy Engineers on December 3, 1961. In their
case, also, the Government did not count their pre-selection
service from July 8, 1957 to December 3, 1959 for computing
their eligibility service, for further promotion; and, in
consequence, they were also not considered eligible for
selection at the time of the preparation of the select-lists
of 1961,1963 and for the subsequent years upto 1966. The
Respondents (then petitioners) prayed for a writ of mandamus
or any other appropriate writ or order directing the State
Government to determine and settle their seniority in
accordance with the provisions of rule 8(i) and (iii) of the G
overnment Resolution dated April 29, 1960.
The main ground taken in the petition before the High Court,
was, that the action of the Government in excluding from
computation the service rendered by the Respondents as
officiating Deputy Engineers prior to their selection as
Deputy Engineers Class 11 Service, was violative of Article
16 of the Constitution of India. The contention was that
the rule of eligibility for promotion had not been uniformly
applied to all Deputy Engineers inasmuch as in the case of
persons Who were recruited to Class 11 by promotion, their
pre-selection service as Officiating or Temporary Deputy
Engineers was computed towards their eligibility service but
the same treatment was denied to Deputy Engineers directly
recruited.
258
In the counter filed on behalf of the State, it was averred
that this distinction between the direct recruits and
promoters in computing their eligibility service for further
promotion was observed as a matter of deliberate policy. It
was added that at the time of the preparation of the select
list of Deputy Engineers fit to be promoted as Executive En-
gineers in 1965, the claims of officiating Deputy Engineers
appointed subsequent to 1- 11- 1956, were not considered;
while the claims of directly recruited Deputy Engineers
though appointed after November 1, 1956, were so considered
because of the special provision for the latter category of
Deputy Engineers as per Government Resolution, dated 29th
April, 1960. The Government therefore, felt that as the
direct recruits were getting special treatment because of
being direct recruits, they should not be allowed a further
advantage of counting, for the purpose of further promotion,
their pre-selection service towards the period of their
eligibility service.
The High Court found that the differentiation in question
made by the Government in the application of the Rules, had
no reasonable nexus with the object of Promotion; and the
action of the Government was therefore clearly
discriminatory and amounted to a denial of equal
,opportunity to directly recruited Deputy Engineers like
petitioners Nos. 1 to 3. In the result, the High Court
allowed the application of the present Respondents 1 to 3
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and issued a writ of mandamus directing that.their case "for
promotion as officiating Executive Engineers shall be
considered on the basis that the pre-selection service
rendered by them as officiating Deputy Engineers prior to
their direct recruitment as Deputy Engineers was liable to
be taken into account in counting the minimum period of
seven years service requisite for promotion as officiating-
Executive Engineers."
In order to appreciate the controversy, it is necessary to
notice briefly the history of these Engineering Services
and the relevant rules which are appendages to various
Government Resolution passed from time to time. Originally,
the Government of Bombay in the Public Works Department
passed a Resolution on March 22, 1937, in pursuance of which
Bombay Engineering Service consisting of Class I and Class
II was constituted. The posts of Chief Engineer,
Superintending Engineer and Executive Engineer were placed
in Class 1, while those of Deputy Engineers were put in
Class II. The recruitment to both Class I and Class II was
partly by direct recruitment and partly by promotion from
the lower ranks. In 1939, further rules were framed under
which recruitment to Class 11 Service was to be made either:
(a) by nomination under rule 1 1 under the
guarantee given to the College of Engineering,
Poona or
(b) by promotion from the
(i) Subordinate Engineering Service;
(ii) Permanent and Temporary Supervisors and
(iii)Temporary Engineers appointed on annual
sanction.
2 5 9
On the 27th May 1947, the Government of Bombay withdrew its
guarantee of certain appointments given to the students of
the Engineering College, Poona; and thereafter, appointed a
Committee (known as Gurjar Comnuttee) to examine the
question of recruitment to the Engineering Services and
allied matters. In the meantime, the Government of Bombay
made direct recruitment to Class I and Class II Service
through competitive examination held by the Public Service
Commission.
Though the Committed made its recommendations in 195 1, yet
this provisional arrangement appears to have continued upto
April 29, 1960, on which date, the Government of Bombay in
the Public Works Department passed a Resolution delineating
the principles of recruitment to the Bombay Service of
Engineers, Class I and Class 11. Shortly, thereafter the
Bombay State was bifurcated; but the 1960 Rules continue to
be applicable to the Engineering Services of the new State
of Gujarat, to which the Respondents herein, were allotted.
By the Resolution of 1960, the existing Class I and Class II
Services were continued. The appointments to both these
Services are to be by direct recruitment through competitive
examination held by the Public Service Commission and also
by promotion in the ratio of 75 : 25. As per rule 2, the
candidates appointed from either service have to be on
probation for a period of tWo years; in the first instance
as trainees for a period not exceeding one year, and then in
a probationary capacity, in-charge of a Sub-Division for one
year more. On satisfactory completion of the period of
probation, the candidates recruited from both the Services
are confirmed as Deputy Engineers in the cadre of Class 11
or as Assistant Engineers in Class 1, as the case may be.
The provisions of 1960 Rules material for our purpose, are
to be found in Rules 6, 7 and 8, which read thus
"6(i) .. .. .. ..
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(ii)For absorption into Class 1, a Class 11
Officer must be in the permanent Bombay
Service of Engineers Class 11 cadre, should
have at least 15 years service to his credit
in Class 11 in temporary and permanent
capacities, and should be holding an
officiating divisional rank, at the time of
such absorption. On such absorption, the
Class 11 Officers shall be confirmed as
Executive Engineers.
(emphasis supplied)
(iii) .. .. .. .. ..
7(i) Since the percentages in the superior
posts of direct Class I recruits and promoters
from Class this so be about 75 and
25, the
number of promotions from Class II in any year
would be about one-third of the number of
directly recruited Assistant Engineers
confirmed as Executive Engineers during that
year. Recruitments in the past, have, however
been erratic and insufficient .... to Class 1.
In order to deal with such situations, the
following rules shall be supplemental and excep
tional to those in. paragraph 6 above
260
(ii)As far as possible promotions as
Officiating Executive Engineers shall be so
made that the promote under consideration from
Class 11 has to his credit at least 6 years
longer service than a promote under
consideration from Class 1, subject as far as
practicable, to the condition that a Class I
Officer shall not hold a divisional rank at
less than 4, and, a Class II Officer at less
than 7 years’ service.
(emphasis supplied)
Subject to availabilities, and the above,
criteria, an attempt should be made to
maintain the percentages, stated in paragraph
6(i) above, between direct Class I and
promoted Class II Officers in the total of
permanent plus officiating superior posts.
(iii) and (iv) .. .. ..
8(i) The Sub-Divisional Posts in the
Department are at present, manned by direct
recruits to Bombay Service of Engineers Class
II Cadre, Deputy Engineers confirmed from sub-
ordinate service of Engineers, the temporary
Deputy Engineers recruited by the Bombay
Public Service Commission, Officiating
Engineers and similar other categories. These
various categories are being compiled into two
lists only, (i) Bombay Service of Engineers
Class 11 cadre of permanent Deputy Engineers
and a List of officiating Deputy
Engineers ....
(ii)All direct recruitment of temporary
Deputy Engineers have been stopped, further
officiating vacancies will be manned from the
rank of the subordinate Service of Engi-
neers.........
The question that falls for decision is : Whether the action
of the State Government in treating "differently" the
promotees and direct recruits in Class 11, for the purpose
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of computing the period of their eligibility service
requisite for promotion as Officiating Executive Engineers,
violates the constitutional guarantee of equal treatment en-
shrined in Article 16 of the Constitution ?
Mr. Bhandare, learned Counsel for the appellant has in the
course of his elaborate arguments stressed these points :
(1)The two channels of promotion of direct
recruits and promotees are separate and there
would be no violation of Article 16, if these
two classes continue to be treated
differently;
(2)It would be open to the Government to
lay down and accept different conditions for
these two classes in the matter of their
further promotion to Class I Service;
(3)Since all the direct recruits constitute
one class, it is not permissible to the
Government to treat the members of the same
class differently and to make a distinction in
the matter of their promotion by taking into
account the pre-selection service of an
officer when he was not a direct recruit in
Class II. To do so, would be to give an undue
advantage to a
2 61
direct recruit with pre-selection service over
his colleagues who did not have such pre-
selection service to their credit.
Learned Counsel further urged that there existed a rational
basis for this classification and differential treatment of
direct recruits and promotees in the matter of their
promotion to Class 1. Reliance, has been placed on two
decisions of this Court in Prabhakar Yeshwant Joshi and or
s. v. The State of Maharashtra and Ors. (1) and Ganga Rain
and Ors. v. Union of India and Ors.(2). We shall presently
examine the effect of those decisions.
Mr. Chitley, learned Counsel for the respondents maintained,
in reply, that rule 7(ii) does not permit discrimination
between promotees and direct recruits in the matter of
computing the seven years’ service as Deputy Engineer
requisite for further promotion as Officiating Executive
Engineer. The point sought to be made out is that rule is
correctly interpreted and uniformly applied, then direct
recruits cannot be denied the advantage of tacking their
pre-selection s if any, to their ’post-selection service in
Class II.
After hearing the learned Counsel on both sides, we think
that the’ contentions of Mr. Bhandare must prevail. It is
manifest that direct recruits and promotees in Class II
constitute two distinct groups or classes. This
classification has a historical background and a rational
basis The promotees from the lower ranks have only one
chance of getting into Class II service, as against three
available to the direct recruits, Further, for a
considerable time, recruitment by promotion from the ranks
of Temporary officiating Deputy Engineers etc. to Class II
Service remained frozen with consequent stagnation and loss-
of incentive in the service. Circumstances being what they
are, promotees, at the time of their entry into Class II
Service, are, broadly speaking, far older than the direct
recruits; and, many of the promotees may have less than 7
years to go before attaining the age of superannuation. If
in the case of both these groups of promotees and direct
recruits, with different backgrounds and dissimilar
circumstances, the period of seven years eligibility service
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were to start from the date of their absorption in Class H,
then, for most of the promotees there would be a rare chance
of ever getting promotion as Officiating Executive Engineer.
The classification is thus based on intelligible
differentia.
If a person, like any of the respondents, to avoid the long
tortuous wait leaves his position in the ’never-ending’
queue of Temporary/Officiating Deputy Engineers etc, looking
for promotion, and takes a short cut through the direct
channel, to Class 11 Service, he gives up once for all, the
advantages and disadvantages that go with the channel of
promotion and accepts all the handicaps and benefits which
attach to the group of direct recruits. He cannot, after
his direct recruitment claim the benefit of his pre-
selection service and thus have the best of both the worlds.
It is well settled that so long as the classification is
reasonable and the persons falling in the same class are
treated alike, there can be no question of violation of the
constitutional guarantee of equal treatment.
(1) [1970] 2 S.C.R. 615, (2) [1970] 3 S.C.R.481.
262
As pointed out by this Court in Ganga Ram’s case (supra), in
applying the wide language of Articles 14 and 16 to concrete
cases, doctrinaire approach should be avoided and the matter
considered in a practical way. If the claim of the
respondents to the counting of their pre-selection service
is conceded, it will create serious complications in running
the administration; it will result in inequality of
treatment rather than in removing it. If the pre-selection
service as Officiating Deputy Engineers of direct recruits
having such service, is taken into account for the purpose
of promotion, it would create two classes amongst the same
group and result in discrimination against those direct
recruits who had no such pre-selection service to their
credit.
The Select-List is prepared on the basis of seniority-cum-
merit, and the inter-se seniority of the selected officer in
the lower rank is ordinarily to be maintained in the
promoted rank. Acceptance of the respondents’ contention
will make the smooth working and uniform application of this
principle of ’seniority-cum-merit’ difficult. The inter-se
seniority of the selected officers will be seriously
disturbed and the Department will be faced with the
anomalous situation of a junior officer, with pre-selection
service, becoming eligible to be considered for promotion
over the head of his seniors, even in the same group, having
no such fortuitous pre-selection service to their credit.
There is nothing in rule 7 (ii) which compels the
interpretation that in the case of direct recruits, also,
their pre-selection service as Officiating Deputy Engineers,
if any, should be counted towards their ’eligiblity
service’. Rule 7(ii) is silent with regard to the method of
computing the seven years period of eligibility service.
The interpretation’ of this condition of seven years service
in rule 7(ii) is not res integra. It came up for
consideration before this Court in Prabhakar Yeshwant
Joshi’s case (supra). The petitioners therein were also
direct recruits to the posts of Deputy Engineers in B.S.E.
Class 11. The respondents therein had entered Class 11
Service by promotion. The petitioners challenged the
promotion of the respondents to the posts of Officiating
Executive Engineers as being contrary to the principles of
natural justice and violative of Arts. 14 and 16 of the
Constitution. It wasinter alia contended that under the
1960 Rules in force, respondents2 to 5 therein were only
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Officiating Deputy Engineers and they had toput in, after
confirmation, as Deputy Engineers,seven years of actual
service before being eligible for promotion as Officiating
Executive, Engineer. Speaking for the Court, Jaganmohan
Reddy J. negatived this contention in these terms:
"Even this rule 7(ii) does not indicate that
the qualifying service of either of six years
or of 7 years specified in the rule has to be
permanent service. In cl. (ii) of r. 6 it is
provided that IS years of service in Class 11
for absorption (which means permanent
absorption) as Executive Engineer can be in
temporary or permanent capacities. There is
nothing in r.(ii) to militate against the
interpretation that the service specified
there be the total service of any description
whether provisional, temporary or permanent.
If promotion from Class 11 as officiating
Executive Engineer can only
263
be made after 7. years of permanent service,
then there would be no meaning in including
the temporary service in Class If for the
purpose of absorption as Executive Engineer.
Even r.6 upon which Shri Gupta has laid great
emphasis in support of his contention, does
not, in our view, justify an interpretation
that 7 years’ service required to entitle
persons in Class II for promotion as an
officiating Executive Engineer should be
permanent service in Class I............
(within brackets ours)
As we have seen earlier, (ii) of r. 7 does not
use the word ’belong’ but requires only that
the person under consideration for promotion
should be from Class II service. To be in
Class II service the Deputy Engineer promoted
from subordinate service has to put in at
least 3 years of service as officiating Deputy
Engineer before being confirmed and thereafter
he can when he is promoted to the next higher
rank be confirmed as Executive Engineer if he
has put in 15 years in Class II service in
temporary or permanent capacities and is
holding an officiating divisional rank namely
of an Executive Engineer. If temporary
service can be taken into account for
confirmation as an Executive Engineer, so can
officiating service, and if, officiating
service can be taken into consideration, there
is no impediment to a Deputy Engineer with 7
years’ service whether officiating, temporary
or permanent, to entitle him for promotion as
an Executive Engineer.......
We cannot, therefore, accept the contention of
Shri Gupta that a promotee officiating Deputy
Engineer Class II is not entitled to be
considered for promotion under r.7 to the post
of, an officiating Executive Engineer unless
he has put in 7 years of service from the date
of confirmation."
What is quoted above, no doubt, pertains to the case of
promotees, with which the Bench was mainly concerned. But
the observations in the penultimate paragraph of the
judgment excerpted below, incidentally cover the issue now
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before us:
"None of the petitioners, it is averred, was
included in the Select List of 1964 or 1965
because not only did any of them not have the
requisite seven years, service as Deputy
Engineer at the relevant time...........
The petitioners however denied in their
rejoinder that "he lists were prepared keeping
the criteria laid down by the rules, but in
our view, it is significant that they did not
possess the required length of service in
Class II for them to be entitled to promotion
when the respondents were included in the list
and promoted.: as such they cannot challenge
the appointments made as’ being in violation
of Art. 14 or Art.
16." (emphasis
supplied)
522SCI/74
264
In the light of the above discussion, we are of the opinion
that the learned Judges of the High Court were in error in
holding that the impugned action of the Government suffered
from the vice of discrimination and as such was violative of
Art. 16 of the Constitution. We, therefore, allow this
appeal, set aside the judgment of the High Court and dismiss
the writ petition, leaving the parties, in the circumstances
to their own costs.
S.C.
Appeal allowed.
2 6 5