Full Judgment Text
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PETITIONER:
N. ABDUL BASHEER & ORS. ETC. ETC.
Vs.
RESPONDENT:
K.K. KARUNAKARAN & ORS.
DATE OF JUDGMENT05/05/1989
BENCH:
PATHAK, R.S. (CJ)
BENCH:
PATHAK, R.S. (CJ)
MUKHARJI, SABYASACHI (J)
NATRAJAN, S. (J)
CITATION:
1989 AIR 1624 1989 SCR (3) 201
1989 SCC Supl. (2) 344 JT 1989 (2) 449
1989 SCALE (1)1473
ACT:
Civil Services: Kerala Excise & Prohibition Subordinate
Service Rules, Special Rule 2--Promotion from post of Excise
Prevention Officer to Second Grade Excise Inspector--Ratio
1:3 for graduates and non graduates--Prescription for--Held
discriminatory and ultra vires.
Constitution of India, 1950: Articles 14 and 16---Serv-
ice conditions--Government should decide the consideration
which underlie a policy that is formulated--Only when viola-
tive of Constitution--Courts entitled to strike down the
rules.
HEADNOTE:
The respondents, who were non-graduate Excise Preventive
Officers in the Excise Department, had challenged in the
High Court the amendment made to the original Special Rule 2
of the Special Rules for the Kerala Excise and Prohibition
Subordinate Service whereby the ratio of 1:3 between gradu-
ates and non-graduates was introduced in the matter of
promotion from the category of Excise Preventive Officers to
that of Second Grade Excise Inspectors. They had contended
that as graduates and non-graduates were both regarded as
eligible for promotion to the post of Second Grade Excise
Inspectors. no differentiation should have been made between
them when prescribing a rule of quota for promotion.
The learned Single Judge allowed the writ and held that
the amendment to Special Rule 2 was violative of Articles 14
and 16 of the Constitution. The State of Kerala and the
private appellants, who were graduate Excise Preventive
Officers and were holding the post of Second Grade Excise
Inspectors. filed appeals. It was contended by them before
the Division Bench that (i) the preference shown to gradu-
ates in the matter of promotion represented the recognition
of graduation as a standard of merit which would promote
administrative efficiency, and (ii) the amendment to Special
Rule 2 was the result of a historical background which
justified preferential treatment. It was pointed out that as
graduates and non-graduates had all along been
202
treated differently in the matter of promotion to the post
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of Excise Inspector, the classification brought about by
amending Special Rule 2 could not be regarded as unreasona-
ble.
The Division Bench held that the amendment to Special
Rule 2 of the Kerala Excise & Prohibition Subordinate Serv-
ice Rules was ultra vires.
Dismissing the appeals, this Court
HELD: (1) The history of the evolution of the Kerala
Excise and Prohibition Subordinate Service has shown no
uniformity either in approach or in object. The history has
varied with the circumstances prevailing before and after
the reorganisation of the State. The conditions pertaining
to the service. and respecting which the constitution of the
service varied from time to time, showed fluctuations. A
consistent or coherent policy in favour of graduates was
absent. This is not a case where the cadre of officers was
kept in two separate divisions. It was a single cadre, and
they were all equal members of it. There is no evidence that
graduate Preventive Officers enjoyed higher pay than non-
graduate Preventive Officers.[208E-G]
Mohammad Shujat All &. Ors. v. Union of India [1975] 1
SCR 449 and Col. A.S. Iyer v. V. Balasubramanyam, [1980] 1
SCC 634, distinguished.
(2) The Conditions of employment and the incidents of serv-
ice the instant case, recognise no distinction between
graduate and non-graduate Officers and for all material
purposes they are effectively treated as equivalent. The
nature of the duties of Preventive Officers whether graduate
or non-graduate was identical, and both were put to field
work. Non-graduate Preventive Officers were regarded as
competent as graduate Preventive Officers. There is no
evidence of any special responsibility being vested in
graduate Preventive Officers. [208H; 209A, E]
State of Jammu & Kashmir v. Triloki Nath Khosa, [1974] 1
SCR 771; S.L. Sachdev v. Union of India, [1980] 1 S.C.R.
971, distinguished.
H.H. Shri Swamiji of Shri Admar Mutt v. Commissioner,
Hindu Religious & Charitable Endowment Department, [1980] 1
SCR 368 and Motor General Traders v. State of Andhra Pra-
desh, [1984] 1 SCC 222, referred to.
(3) Ordinarily, it is for the Government to decide upon
the considerations which, in its judgment, should underlie a
policy to be
203
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 Arti-
cles 14 and 16 of the Constitution. [209D-E]
(4) The learned Single Judge as well as the Division
Bench were right in holding that the prescription of a ratio
dividing the quota of promotion between graduate Preventive
Officers and non-graduate Preventive Officers is invalid on
the ground that it violates Articles 14 and 16 of the Con-
stitution. [209B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1553 to
1556 of 198 1 etc.
From the Judgment and Order dated 20.3.1981 of the
Kerala High Court in W.P. Nos. 166, 177,223 and 243 of 1980.
T.S. Krishnamurthy Iyer, G.L. Sanghi M.M. Abdul Khader,
M.K. Ramamurthi, G. Vishwanatha Iyer, Ms. Shanta Vasudeavan,
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A.S. Nambiar, K.M.K. Nair, E.M.S. Anam, V.J. Francis, O.V.
Radhakrishnan and N. Sudhakaran, for the appearing parties.
The Judgment of the Court was delivered by
PATHAK, CJ. These appeals by graduate Excise Inspectors
are directed against the judgment and order dated 20 March,
1981 of the High Court of Kerala holding that the amendment
to Special Rule 2 of the Kerala Excise & Prohibition Subor-
dinate Service Rules is ultra
vires.
The writ petitions were filed by non-graduate Excise
Inspectors alleging that the amendment to Special Rule 2 of
the aforesaid Rules violates Articles 14 and 16 of the
Constitution inasmuch as an invidious discrimination has
been made between graduates and non-graduates by prescribing
a ratio between them in the matter of promotion from the
post of Excise Preventive Officer to that of Second Grade
Excise Inspectors. As all the cases have proceeded on a
common factual basis, we shall take up the appeal arising
out of O.P. 3760 of 1978 for the purpose of this judgment.
The petitioner in O.P. 3760 of 1978 joined the post of
Excise Guard on 2 April, 1960. He was promoted on 12 Janu-
ary, 1966 as Excise Preventive Officer. In the list of
Preventive Officers in the
204
Excise Department as on 1 August, 1970 he was ranked No. 131
while the third respondent was ranked at number 390. The
third respondent was promoted earlier although he was junior
to the petitioner. This was on the ground that he was a
graduate and the petitioner was a non-graduate. The peti-
tioner contended that as graduates and non-graduates were
both regarded as eligible for promotion to the post of
Second Grade Excise Inspectors no differentiation should
have been made between them when prescribing a rule of quota
for promotion. The writ petition was heard by a learned
Single Judge, who held that the amendment to Special Rule 2
was violative of Articles 14 and 16 of the Constitution. It
may be noted that the original Special Rule 2 of the Special
Rules for the Kerala Excise and Prohibition Subordinate
Service was amended by G.O.P.No. 79/78/TD dated 23 June,
1978 whereby the ratio 1:3 between graduate and non-gradu-
ates was introduced into the Special Rules in the matter of
promotion from the category of Excise Preventive Officers to
that of Second Grade Excise Inspectors. The amendment was
deemed to have come into force retrospectively from 9 Sep-
tember, 1974 when the Special Rules were brought in. The
learned Single Judge directed the respondents in the case to
cause the Departmental Promotion Committee to be convened
within two months to prepare a select list in order that
promotions on a regular basis could be made.
Against the judgment of the learned Single Judge in the
different cases, appeals were filed before a Division Bench
of the High Court. Two contentions were raised on behalf of
the appellants, who in some of the appeals were the State of
Kerala and the Deputy Commissioner of Excise, Board of
Revenue, Trivandrum and in other cases were a number of
private respondents in the original petitions and who held
the post of Excise Inspector.
Two contentions were raised by the appellants before the
Division Bench of the High Court. It was contended that the
preference shown to graduates by prescribing under the
amended special Rule 2 the ratio 1:3 represents the recogni-
tion of graduation as a standard of merit and, it was urged,
officers with more merit in the post of Excise Inspectors
would promote administrative efficiency. It was also con-
tended that the amendment to Special Rule 2 is the result of
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an historical background which justifies preferential treat-
ment. It was pointed out that as graduates and non-graduates
had all along been treated differently in the matter of
promotion to the post of Excise Inspector, the classifica-
tion brought about by amending Special Rule 2 could not be
regarded as unreasonable.
205
It will be appropriate to set forth the historical
background out of which the present controversy arises. From
the year 1935, in the erstwhile State of Travancore prefer-
ence was given to graduates in the matter of promotion. When
the State of Kerala was constituted by the merger of the
Travancore and Cochin areas with effect from 1 November,
1956 a rule was promulgated in the Excise Department of
Kerala prescribing a ratio in the matter of promotion to the
post of Excise Inspectors by an order dated 23 August, 1957.
The Rule regulated appointments to posts of Guards, Preven-
tive Officers and Second Grade Inspectors in the Excise
Department. Clause (d) related to Second Grade Excise In-
spectors and it provided:
"(d) Second Grade Excise Inspectors: A
margin of twentyfive per cent of the vacancies
in the cadre of Second Grade Excise Inspectors
will be left for being filled up by direct
recruitment by the Public Service Commission
of graduates ...... The remaining seventy
five per cent will be filled up by promoting
L.D. Clerks ....... and Preventive Officers
on a 50:50 basis observing the ratio. of 3:1
between graduates and non-graduates in either
case."
Clause (d) applied to personnel of the
Travancore--Cochin area. The officers allotted from Madras
were governed by the Madras Rules pending the issue of
common rules applicable to both. By reason of this Order 25
per cent of the post of Second Grade Excise Inspectors were
to be filled up by direct recruitment, 37 1/2 per cent by
promoting Lower Division Clerks and 37 1/2 per cent by
promoting Preventive Officers. Within the promotion quota of
Preventive Officers promotion was to be effected between
graduates and non-graduates in the ratio of 3: 1. This rule
applied to Travancore and Cochin personnel appointed prior
to 1 November, 1956. After taking note of the situation in
different parts of the State, the Government order dated
19th November, 1957 prescribed the ratio of 1:1 between
graduates and non-graduates on an interim basis. It was
mentioned there that the ultimate aim was to do away with
the distinction between graduates and non-graduates in
offices other than the Secretariat, the Public Service
Commission and the High Court. Subsequently, however, it was
clarified on 8 July, 1966 that the Order was intended to
apply to ministerial posts only and not to executive posts
such as those of Preventive Officers.
The question of the applicability of the graduate and
non-graduate ratio was examined by the High Court in Writ
Petitions filed
206
in 1972, and the High Court directed the Government to look
into the matter and finalise the provisional promotion of
Excise Inspectors accordingly. It was thereafter that Spe-
cial Rules for the Kerala Excise and Prohibition Subordinate
Service dated 9 September, 1974 were published. They provide
for appointment to the posts of Excise Inspectors by direct
recruitment, promotion from the category of Excise Preven-
tive Officers and recruitment by transfer from among Upper
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Division Clerks employed in the Excise Department. The Rules
did not provide for any graduate non-graduate ratio in the
matter of promotion, apparently because the ratio had al-
ready been provided earlier by the Government order dated 23
August, 1957. But meanwhile the High Court held that the
Government order dated 23 August, 1957 could not be applied
to those appointed after the formation of the State of
Kerala. To fill up the vacuum in respect of appointments
after 1 November, 1956 an order dated 4 October, 1974 was
made applicable retrospectively to all appointments on or
after 1 November, 1956 till the date of issue of the Special
Rules for the Excise Subordinate Service. It adopted the
ratio of 3:1 between graduates and non-graduate for promo-
tion to the post of Second Grade Excise Inspectors for the
entire State of Kerala, and it specifically provided that
this graduate non-graduate ratio 3:1 would apply to the case
of persons who had entered the Excise Department on or after
1 November, 1956, and that it would operate until the coming
into force of the Kerala Excise and Prohibition Subordinate
Service Rules. This was, however, challenged in the High
Court and the High Court held that it was not open to the
Government to apply the ratio of 3:1 by an executive order
passed in 1974 and made retrospectively from 1 November,
1956 inasmuch as an executive order could not be given
retrospective effect. There was, therefore, no provision in
law prescribing a graduate non-graduate ratio governing
appointments made on and from 1 November. 1956. As has been
stated Special Rules for the Excise Subordinate Service
dated 9 September, 1974 had been published meanwhile. Spe-
cial Rule 2 was amended with effect from 9 September, 1974,
the date of commencement of the Special Rules, providing for
a ratio of 1:3 between graduates and non-graduates as from 9
September, 1974. In consequence. while up to 9 September,
1974 there was no valid Rule in force applying a graduate
non-graduate ratio for promotion, there was a rule intro-
duced in 1978 by amendment to the Special Rules prescribing
a ratio from 9 September, 1974 onwards. The gap between 1
November, 1956 and 9 September, 1974 was sought to be filled
thereafter by an Order dated 6 March, 1981 which provided
that the appointment of Excise Inspectors during the period
from 1 November, 1956 and ending 8 September, 1974 from
207
among Clerks and Preventive Officers who have entered serv-
ice on or after 1 November, 1956 would be made in the ratio
of 1:1 between Clerks and Preventive Officers. simultaneous-
ly observing the ratio 01’ 3: l was observed between gradu-
ates non-graduates. ’The Rule was deemed to have into force
from 1 November, 1956.
It will thus be evident that in the case of Preventive
Officers appointed on or after 1 November, 1956, the gradu-
ate non-graduate ratio of 3:1 was observed between 1 Novem-
ber, 1956 and 8 September, 1974, and it became 1:3 from 9
September, 1974 onwards.
The plea of the non-graduate Preventive Officers that
there should be no preference in favour of the graduate
officers was accepted, as we have seen, by the learned
Single Judge and upheld in appeal by the Division Bench of
the High Court.
In these appeals by graduate Excise Inspectors, it is
contended that there was good and substantial reason for
maintaining the ratio between graduate and non-graduate
Officers, and the history of the evolution of the service
supported the maintenance of such ratio, and that the High
Court proceeded erroneously in assuming that the observance
of the ratio between graduates and non-graduates produced an
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invidious discrimination violative of Arts. 14 and 16 of the
Constitution. We are referred to Mohammad Shujat Ali & Ors.
etc. v. Union of India & Ors. etc., [1975] 1 SCR 449 where
this Court upheld the differentiation between graduate
supervisors and non-graduate supervisors for the purpose of
promotion as Assistant Engineers. But it is clear that this
was on the ground that the two categories of supervisors had
been kept distinct and apart under the Cadre Rules from the
beginning, with different pay scales and different treatment
for the purpose of promotion. Reference was also made of
State of Jammu & Kashmir v. Triloki Nath Khosa & Ors.,
[1974] 1 SCR 771, but it was held there that having regard
to the object of achieving administrative efficiency in the.
Engineering Service it was a just qualification to maintain
a distinction between Assistant Engineers who were degree
holders and those who were merely diploma holders. In S.L.
Sachdev & Anr. v. Union of India & Ors., [1981] 1 SCR 971
again the discrimination between UDCs drawn from Audit
Offices and other UDCs in the matter of the eligibility
qualification for promotion was justified on the basis that
the one enjoyed greater experience and that the distinction
based on length of service was directly related to the
object of the classification. In Col. A.S. Iyer and Others
v.V. Balasubramanyam and Others, [1980] 1 SCC 634 upon which
reliance
208
has been placed by the Appellants, the recruits were from
two different sources which had not completely fused into
one integrated service but were instead allowed to maintain
their separate identity, and regard was had to their basic
functional character, operational capabilities and ’futuris-
tic’ uses to support the differential treatment between
military engineers and civilian engineers. H.H. Shri Swamiji
of Shri Admar Mutt, etc. v. The Commissioner, Hindu Reli-
gious & Charitable Endowments Department & Ors., [1980] 1
SCR 368 is a case where we find it difficult to see any
argument in favour of the appellants, for the passage there-
in to which our attention has been drawn specifically al-
ludes to the circumstance that the passing of time results
in altering a fact situation which has the consequence of
wearing out the basis on which the differentiation is found-
ed. So also in Motor General Traders and Anr. v. State of
Andhra Pradesh & Others, [1984] 1 SCC 222 it was observed by
this Court that an exemption provision initially valid could
become discriminatory where with the passage of time the
nexus with the object did not survive any longer..
We have also heard submissions made by learned counsel
for the appellants in Civil Appeals Nos. 1554 and 1556 of
1981, and they have elaborated on the points raised by
learned counsel in Civil Appeal No. 1553 of 1981 with some
differences of nuance and emphasis. In essence, the conten-
tion remains the same.
It seems to us that the history of the evolution of the
Kerala Excise and Prohibition Subordinate Service has shown
no uniformity either in approach or in object. The history
has varied with the circumstances prevailing before and
after the reorganisation of the State on 1 November, 1956.
Originally when more emphasis was laid on the induction of
graduate the ratio of graduate to non-graduate officers was
maintained at 3: 1. But from 9 September, 1974 the ratio was
changed inversely to 1:3. More non-graduates were now in-
ducted into the Service. The trend shows, if anything, that
it ran in favour of absorbing more non-graduates. The condi-
tions pertaining to the service, and respecting which the
constitution of the service varied from time to time, showed
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fluctuations. A consistent or coherent policy in favour of
graduates was absent. This is not a case where the cadre of
officers was kept in two separate divisions. It was a single
cadre, and they were all equal members of it. There is no
evidence that graduate Preventive Officers enjoyed higher
pay than non-graduate Preventive Officers. The High Court
has noted that the nature of the duties of Preventive Offi-
cers whether graduate or non-graduate was identical, and
both were put to field work. Non-graduate Preventive
209
Officers were regarded as competent as graduate Preventive
Officers. There is no evidence of any special responsibility
being vested in graduate Preventive Officers. Once they were
promoted as Excise Inspectors there was no distinction
between graduate and non-graduate Excise Inspectors.
In our opinion the learned Single Judge as well as the
Division Bench are right in holding that the prescription of
a ratio dividing the quota of promotion between graduate
Preventive Officers and non-graduate Preventive Officers is
invalid on the ground that it violates Arts. 14 and 16 of
the Constitution.
The other contention raised before the High Court,
namely that the ratio 1:3 between graduates and non-gradu-
ates is supportable on the ground that the recognition of
graduation is recognition of merit, and that more merit in
the post of Excise Inspectors would be conducive to better
administrative efficiency, is shortly disposed of. Ordinari-
ly, it is for the Government to decide upon the considera-
tions 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 Arts.
14 and 16 of the Constitution. In the present case, we have
already commented on the circumstance that the conditions of
employment and the incidents of service recognise no dis-
tinction between graduate and non-graduate Officers and that
for all material purposes they are effectively treated as
equivalent.
Accordingly, this contention must also be rejected.
In the result, the appeals fail and are dismissed but
there is no order as to costs.
R.S.S. Appeals
failed.
210