Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 22
PETITIONER:
STATE OF JAMMU & KASHMIR
Vs.
RESPONDENT:
TRILOKI NATH KHOSA & ORS.
DATE OF JUDGMENT26/09/1973
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
RAY, A.N. (CJ)
PALEKAR, D.G.
CHANDRACHUD, Y.V.
BHAGWATI, P.N.
CITATION:
1974 AIR 1 1974 SCR (1) 771
1974 SCC (1) 19
CITATOR INFO :
F 1974 SC1631 (26,28)
F 1974 SC1755 (25)
F 1976 SC 490 (37,57,58,108,180,184,208,212,
R 1978 SC 327 (7,8)
R 1978 SC 771 (43)
R 1979 SC 478 (121)
RF 1979 SC 765 (15)
D 1979 SC1060 (19,21,25,26)
R 1980 SC 452 (57,59,69)
E 1980 SC 820 (33)
RF 1981 SC 41 (6)
RF 1981 SC1041 (11)
R 1981 SC1829 (35)
D 1985 SC 306 (7)
D 1985 SC1495 (133)
F 1986 SC 737 (17)
R 1987 SC 415 (16)
D 1987 SC1676 (16,22)
D 1987 SC2348 (3)
RF 1989 SC 307 (5,68)
F 1989 SC1256 (8)
F 1989 SC1308 (7)
D 1989 SC1624 (11)
D 1989 SC1713 (10)
RF 1991 SC 79 (25)
R 1992 SC 1 (122)
ACT:
Constitution of India, 1950, Articles 14, 16--Jammu and
Kashmir Engineering (Gazetted) Service Recruitment Rules,
1970--Persons appointed directly and by promotion integrated
into common class of Assistant Engineers--If for purpose of
promotion as Executive Engineers they could be classified on
the basis of educational qualifications--Classification if
violative of articles 14 and 16.
HEADNOTE:
Under the Recruitment Rules of 1939, recruitment to the
cadre of Assistant Engineers in the Jammu and Kashmir
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 22
Engineering Service was to be made by direct recruitment of
degree holders in Civil Engineering or by transfer of degree
or Diploma holders who have served as Supervisor for a
period of not less than 5 years. The rules further provided
that appointments by transfer (that is by promotion) to the
cadre of Executive Engineers could be made only from the
cadre of Assistant Engineers on the basis of merit, ability
and the previous record of the candidates. The Jammu and
Kashmir Engineering (Gazetted) Service Recruitment Rules,
1970, provided that recruitment to the post of Executive
Engineers and above was to be made only by promotion. And,
as regards promotion to the post of Executive Engineers, and
to those only, it was provided that only those Assistant
Engineers who possessed a degree in Engineering would be
eligible for promotion. Diploma holders in Engineering,
like the respondents, were thus rendered ineligible for
promotion as Executive Engineers. The respondents
challenged the constitutionality of the Rule. The
classification, according to the appellants, was made with a
view to achieving administrative efficiency in the
Engineering Service. The High Court, took the view that the
impugned Rule was violative of articles 14 and 16 of the
Constitution.
In appeal to this Court it was contended on behalf of the
State that it is always open to the Government to classify
its employees so long as the classification is reasonable
and has nexus with the object thereto; that if there are
different sources of recruitment, the employees recruited
from different sources can either be allowed different
conditions of Services and so continue to belong ’to
different classes or the Government may integrate them into
one class; that once the employees are integrated into one
class they cannot for the purposes of promotion, be
classified again into two different classes on the basis of
differences existing at the time of recruitment; but, after
integration into one class, the employees can, in the matter
of promotion be classified into different classes on the
basis of any intelligible differentia as, for example,
educational qualifications, which has a nexus with the
object of the classification. namely, efficiency in the post
of promotion. The respondents urged that the Rules of 1939
did not make any distinction between diploma-holders and
degree-holders; that the rules governing conditions of
Service could not be changed retrospectively to classify
employees on the basis of educational qualifications so as
to deny promotion to the diploma-holders; that having regard
to the fact that from 1939 to 1970 holders of diploma and
degree were treated alike, the onus lay heavily on the
appellants to prove the necessity for differentiating
between the two, which onus was not discharged on the record
of the cases; that there was no nexus between the
classification and the objects to be achieved thereby and in
fact the classification defeated that object; that if
chances of promotion were denied to a few within a class of
equals, there was an inherent vice attaching to the
classification and no question of reasonableness of the new
yardstick could possibly arise; that the unreasonableness of
the classification was patent from the fact that a degree
qualification was considered as a pre-condition for the
promotion to the posts of Executive Engineers but not to
higher posts; and
772
that if persons recruited from different sources were
integrated into one class, they could not thereafter be
classified so as to permit in. favour of some of them a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 22
preferential treatment as against others.
HELD : Though persons appointed directly and by promotion
were integrated into a common class of Assistant Engineers,
they could for purposes of promotion to the cadre of
Executive Engineers be classified on the basis of
educational qualifications. The rule providing that
graduates shall be eligible for such promotion to the
exclusion of diploma holders does not violate articles 14
and 16 of the Constitution.
(i) it is wrong to characterise the operation of a Service
rule as retrospective for the reason that it applies to
existing employees. A rule which classifies such employees
for promotional purposes, undoubtedly operates on those who
entered service before the framing of the rule but it
operates in future in the sense that it governs the future
right of promotion of those who are already in service. It
is well settled that a Government servant acquires a I
status’ on appointment to his office and as a result his
rights and obligations are liable to be determined under
statutory or Constitutional authority which for its exercise
requires no reciprocal consent. [779 E]
(ii) It is no part of the appellant’s burden to justify the
classification or to establish its constitutionality. A
classification founded on variant educational qualifications
is, for purposes of promotion to the post of a Executive
Engineer, to say the least, not unjust on the face of it and
the onus therefore-cannot shift from where it originally
lay. [780 G)
Shri Ram Krishan Dalmia v. Justice S. R. Tendolkar &
Ors.[1959] S.C.R. 279, 297; State of Uttar Pradesh v.
Kartar Singh [1964] 6S. C. R. 679, 687 and G. D. Kerkar v.
Chief Controller of Imports and Exports [1967] 2 S.C.R. 29,
34, referred to.
(iii) Classification is primarily for the legislature or
for the statutory authority charged with the duty of framing
the terms and conditions of service; and if, looked at from
the standpoint of the authority making it, the
classification is found to rest on a reasonable basis, it
has to be upheld. Discrimination is the essence of
classification and does violence to the constitutional
guarantee of equality only if it rests on an unreasonable
basis. [781 C]
(iv) There is no justification for the respondent’s plea
that the record does not disclose the necessity for the
impugned rule of 1970. The records show that till about
1968 there was a dearth of Engineering graduates. In 1962
the ratio between graduates and diploma holders was 1 : 2
and in 1968 it became almost 2 : 1 and in 1970 the position
remained more or less unchanged. The appellants were
entitled to take into account this spurt in the availability
of persons with higher educational qualifications for
manning the next higher post of promotion. Further, it
cannot be overlooked that even under the recruitment rules
of 1939 graduates in Civil Engineering were alone eligible
for direct recruitment as Assistant Engineers in the Kashmir
Engineering Service. [783 B]
(v) The argument that if the nature of duties and
responsibilities of the post of Executive Engineer has
undergone no significant change, there would be no
justification for restricting the field of choice to
graduates assumes in the Court a right of scrutiny somewhat
wider than is generally recognised. The concept of equality
has an inherent limitation arising from the very nature of
the constitutional guarantee. Equality is for equals. That
is to say, those who are similarly circumstanced are
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 22
entitled to an equal treatment.
Classification, however, is fraught with the danger that it
may produce artificial inequalities and therefore, the right
to classify is hedged in with salient restraints; or else,
the guarantee of equality will be submerged in class
legislation masquerading as laws meant to govern well-marked
classes characterized by different and distinct attainments.
Classification, therefore, must be
7 7 3
truly founded on substantial differences which distinguish
persons 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.
Judicial scrutiny can therefore 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 embaring upon a nice or
mathematical evaluation of the basis of classification, for,
were such an inquiry permissible, it would be open to the
courts to substitute their own judgment for that of the
legislature or the rule-making authority on the need to
classify or the desirability of achieving a particular
object. [784 A-C]
(vi) So judged, the classification of Assistant Engineers
into degree holders and diploma holders cannot be said to
rest on any unreal or unreasonable basis. If the
classification was made with a view to achieving
administrative efficiency in the Engineering Service, the
classification is clearly correlated, to it, for, higher
educational qualifications are at least presumptive evidence
of a higher mental equipment. On the facts of the case the
classification cannot be said to rest on any fortuitous
circumstances. educational qualifications have been
recognised by this Court as a safe criteria for determining
the validity of classification. [784 D; 785 E]
State of Mysore & Anr. v. P. Narasing Rao, [1968] 1 S.C.R.
407, and The Union of India v. Dr. (Mrs.) S. B. Kholi,
A.I.R. 1973 S.C. 811, 813.
(vii) The seniority list of January 1, 1971 shows how
unreal the argument is that the qualification rule not
having been extended to the higher echelons of service, it
can bear no nexus with the attainment of administrative
efficiency in a comparatively lower hierarchy of Assistant
Engineers. Dealing with practical exigencies, a rule making
authority may be guided by the realities of life, just ,is
the legislature, while making a classification, "is free to
recognize degrees of harm and it may confine its
restrictions to those classes of cases where the need is
deemed to be the clearest." if the law presumably hits the
evil where it is most felt, it is not to be overthrown
because there are other instances to which it might have
been applied, [785 C, G]
Bain Peanut Co. v. Pinson 75 L. ed. 482, 489, Miller v.
Wilson, 59 L.ed. 632 and Keekee Gonsol, Coke Co. v. Taylor
58 L.ed. 1288, 1289.
(viii) This Court’s decision in Roshan Lal’s case is no
authority for the proposition that if direct recruits and
promotees are integrated into one class, they cannot be
classified for purposes of promotion on a basis other than
the one that they were drawn from different’ sources. All
that Roshan Lal’s case lays down is that direct recruits and
promotees lose their birthmarks on fusion into a common
stream of service and they cannot thereafter be treated
differently by reference to the consideration that they were
recruited from different sources. Their genetic blemishes
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 22
disappear once they are integrated into a common class and
cannot be revived so as to make equals unequals once again. In
the instant case classification rests fairly and squarely on
the consideration of educational qualifications : Graduates
alone shall go into higher post, no matter’whether they were
appointed ’as Assistant Engineers directly or by promotion.
The discrimination, therefore, is not in relation to the
source of recruitment as in Roshan Lal’s case. [789 C]
Roshan Lal Tandon v. Union of India, [1968] 1 S.C.R. 185,
Mervyn Coutindo & Ors. v. Collector of Customs, Bombay &
Ors., [1966] 3 S.C.R. 600) and S. M. Pandit v. State of
Gujarat, A.I.R. 1972 S.C. 252, explained and held
inapplicable.
The Court emphasized the necessity of adopting a pragmatic
approach in order to harmonize the recruitments of public
service with the aspirations of public servants and
cautioned against evolving, through imperceptible exten-
7 74
sions, a theory of classification which may subvert, perhaps
submerge, the previous guarantee of equality.1 [790 G]
Per Bhagwati and Krishna Iyer, JJ : (concurring); (i) The
proposition that all men are equal has working limitations,
since absolute equality leads to procrustean cruelty. An
imaginative and constructive modus, vivendi between
commonness and excellence must be forged to make the
equality clauses viable. The social meaning of articles 14
to 16 is neither dull uniformity nor specious ’talentism’.
it is a process of producing quality out of larger areas of
equality extending better facilities to the latent
capabilities of the lowly. [791 B-C]
ii) In the present case, in the past decades, few
Engineering graduates in the State and few Engineering
Colleges in the country compelled Government to recruit
diploma holders and promote them to higher offices. But
circumstances have changed, needs have increased,
availabilities have expanded and inequalities at the
educational level have been partly eliminated. And so
personnel policy, with an eye on efficiency have changed.
[791 G-H]
(iii) However, while striking a balance between the long
hunger for equal chance of the lowlier and the disturbing
concern of the community for higher standards of
performance, the State should not jettison the germinal
principle of equality alto,-ether. The dilemma of democracy
is as to how to avoid validating the abolition of the
difference between the good and the bad in the name of
equality and putting to sleep the constitutional command for
expanding the areas of equal treatment for the weaker ones
with the dope of ’special qualifications’ measured by
expensive and exotie degrees. These are perhaps meta-
judicial matters left to the other branches of Government,
but the Court must hold the Executive within the leading
strings of egalitarian constitutionalism and correct, by
judicial review, episodes of subtle and shady classification
grossly violative of equal justice. That is the heart of
the matter. That is the note that rings through the first
three fundamental rights the people -have given to
themselves. [792 B]
JUDGMENT:
ORIGINAL JURISDICTION :
The judgment of A. N. RAY, C. J. D. G. PALEKAR and Y. V.
CHANDRACHUD J.J. was delivered by Chandrachud, J. KRISHNA
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 22
IYER, J. delivered a separate concerning Opinion on behalf
of Bhagwati. J. and himself.
CHANDRACHUD, J. If persons drawn from different sources are
integrated into one class, can they’ be classified for
purposes of promotion on the basis of their educational
qualifications? That is the issue for consideration before
us.
Respondents, who are Diploma Holders in Engineering, filed
in the High Court of Jammu and Kashmir a petition under
article 226 of the Constitution to challenge the validity of
certain Service Rules framed by the Government of Jammu and
Kashmir. A Learned single Judge dismissed the petition but
in appeal a Division Bench of the High Court took the view
that the impugned rules were violative of articles 14 and 16
of the Constitution. The correctness of that view is
-challenged by the State of Jammu and Kashmir in this appeal
by special leave.
Respondents, who are serving in different branches Of the
Engineering Service of the appellants, were appointed as
Assistant Engineers between 1960 and 1966 by promotion from
the Subordinate Engineering
77 5
Service. Their conditions of service were then governed by
the rules published under Order No. 1328-C of 1939. Those
rules, to the extent material, read thus:
The following rules prescribing the procedure
relating to recruitment to the gazetted
services are sanctioned:-
(3) Special qualifications.-Under rule, 18
of the Kashmir Civil Services Rules (General),
the following special qualifications are
prsecribed in the case of candidates for
direct recruitment or recruitment by transfer,
as the case may be, to the services mentioned
below
KASHMIR ENGINEERING SERVICE
Category 2 of Class II Direct Degree in Civil Engineering
(Assistant Engineer). of any recognised university
By transfer (i)Degree or Diploma in
Civil Engineering of any
recognizedUniversity
or UupperSubordinates
Diploma ofany recognis-
ed College of Engineering and
(ii)Service as a Supervisor for
a period of not less
than 5 years on duty.
Classlll (Ground Engineer)] Certificate of Ground En-
Direct gineering prescribed by
the Government of India.
KASHMIR ELECTRICAL SERVICE
Category 2 of Class 11.Direct (i) Degree in
Electrical
Direct Engineering of any
recognised University, and
(Assistant Electrical Engineer).
(ii)Practical training in an
Electrical Power Station.
By transfer (i) Degree or Diploma in
Electrical Engineering of
any recognised University
and
(ii)Practical experience in
an Electric Power Station."
__________________________________________________________
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 22
The rules further provided that appointments by transfer
(that is, by promotion) to the cadre of Divisional Engineers
(now known as Executive Engineers) could be made only from
the cadre of Assistant Engineers. Promotions to the cadre
of Assistant Engineers could, in turn, be made only from the
cadre of Supervisors in the Subordinate
7 76
Service. Recruitment by transfer was to be made "on the
basis of merit, ability and the previous record of the
candidates, seniority being considered only in case of
equality of merit, ability and excellence of record". The
scale of pay admissible to the Assistant Engineers was Rs.
300-20-5,00.
In 1962, the appellants undertook a general revision of pay
scales and framed "Jammu and Kashmir Civil Services (Revised
Pay) Rules", which were gazetted on August 6, 1962. Rule 12
divided the Assistant Engineers into two categories,
datewise. Those appointed prior to August 1, 1960 were
placed in Grade I while those, appointed subsequently were
placed in Grade 11, regardless -of whether appointments to
the posts of Assistant Engineers_were made directly or by
promotion and whether the incumbents held a degree or a
diploma. Those in Grade I were put in the pay scale of Rs.
300-700 while those in Grade II were put in the scale of Rs.
250-600. Officers in Grade II were entitled to go into
Grade I after completing two years’ service, subject to the
availability- of vacancies.
A further revision of pay scales was effected under the
"Jammu .and Kashmir Civil Services (Revised Pay) Rules,
1968" which were gazetted on February 27, 1968. Under Rule
10 (IIB) (i), Assistant Engineers were granted a new pay
scale of Rs. 300-30-540-EB-35610-QB-35-750, but it was
provided that the "QB at Rs. 610/- will not be crossed by
Assistant Engineers with Diploma Course". This rule was
challenged- by the respondents in so far as it denied to
them an opportunity to cross the qualification bar.
Then came the "Jammu and Kashmir Engineering (Gazetted)
Service Recruitment Rules, 1970", gazetted on October 12,
1970. These rules provide for appointments to the gazetted
posts in various branches of the Engineering Service of the
appellants and supersede the old rules on the subject. By
rule 3(f) ’promotion’ is defined to mean promotion from one
class, category or grade to another class, category or grade
on the basis of merit and efficiency, seniority being
considered only when merit was equal. Under the Schedule
annexed to these Rules, recruitment to the cadre of
Executive Engineers and above was to be made only by
promotion. But as regards promotion to the posts of
Executive Engineers, and to those only, it was provided that
only those Assistant Engineers would be eligible for
promotion who possessed a bachelor’s degree in engineering
or held the qualification of A-M-I.E., Section A, & B and
who had put in at least 7 years service in the J. K.
Engineering (Gazetted) Service. This is the second of the
two Rules impugned in this appeal.
The case of the respondents as disclosed in their petition
was that under the, rules of 1939, Assistant Engineers were
entitled to be promoted to the higher cadre on the basis of
their merit and record and no distinction was made between
degree-holders and diploma holders for the purposes of such
promotion. The discrimination made by the impugned rules
between degree-holders and diploma-holders was arbitrary and
capricious because academic or technical qualifica-
7 77
tions could be germane only at the time of recruitment. For
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 22
purposes of promotion, efficiency and experience alone must
count. Respondents further contended that once the
Government appointed candidates with different academic or
technical qualifications to the same cadre, having the same,
pay scale and similar duties, such candidates would form one
class and they cannot be further classified for purposes of
promotion on the basis of their educational qualifications.
The, impugned rules, according to the respondents, brought
about a reduction in rank, deprived them of equal
opportunity in the matter of promotion and were violative of
articles 14 and 16 of the constitution of India. Finally,
the respondents contended by their petition that it was not
competent to the Government to change the service conditions
unilaterally- to the disadvantage of its employees so as to
deprive them of their vested right of promotion by giving
retrospective effect to the rules.
The appellants, by their counter affidavit, traversed these
averments thus : It was within the competence of the
Government to grant a higher pay scale to persons with
higher educational qualifications. Under the Rules of 1968
a higher slab of pay was sanctioned for Assistant Engineers
with higher educational qualifications and the qualification
Bar was imposed so as to exclude diploma-holders, with a
view to ensuring administrative efficiency in the
Engineering service. Under the Rules of 1970, the Governor
had laid down the method of recruitment and had prescribed
qualifications for appointment to various categories of
posts in the engineering department keeping in view the
nature of duties and responsibilities attached to those
posts. Classification, for purposes of promotion, on the
basis of educational qualifications has an intelligible
differentia and was therefore not violative of the
constitutional provisions of equality. Lastly, the
appellants disputed that application of the Rules to
existing employees made the Rules "retrospective" in any
sense.
The learned single Judge, who heard the petition rejected
the respondents’ contentions but that judgment was reversed
in appeal by a Division Bench of the High Court. Briefly,
the Division Bench held that though it was open to the
Government to make a reasonable classification of its
employees, where the employees were grouped together and
integrated into one unit without reference to their quali-
fications, they formed a single class in spite of initial
disparity in behalf of their educational qualifications and
no discrimination could thereafter be made between them on
the basis of such qualifications; that the discrimination
made under the Rules of 1968 between diploma-holders and
degree-holders was unconstitutional and that having
prescribed diploma or a degree in engineering with practical
experience as a minimum qualification for entry into
service, it was not open to the Government to prescribe
higher educational qualifications for promotion from the
cadre of Assistant Engineers to that of Executive Engineers.
The main "Judgment was delivered by Mufti Bahauddin J. who
confined his view to the vice attaching to the rules by
reason of their reprospectivity. The learned Chief Justice,
by a concurring
197
judgment struck down the rules for all time. They were,
according to in so far as they applied to existing employees
and would be bad applied to those who may, join the cadre in
future.
The learned Attorney General, who appears on behalf of the
appellants, contends that it is always open to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 22
Government to classify its employees so long as the
classification is reasonable and has nexus with the object
thereof; that a classification cannot be held to infringe
the equality clause unless it is actually and plapably arbi-
trary; that if there are different sources of recruitment,
the employees recruited from different sources can either,
be allowed different conditions of service and so continue
to. belong to different classes or the Government may
integrate them into one class; that once the employees are
integrated into one class, they cannot, for purposes of
promotion, be classified again into two different classes on
the basis of differences existing at the time of
recruitment; but, after integration into one class, the
employees can, in the matter of promotion, be classified
into different classes on the basis of any intelligible
differentia as, for example, educational qualifications,
which has a nexus with the object of classification, namely
efficiency in the post of promotion.
Mr. Setalvad who led for the respondents contended that
neither at the time of appointment to the post of Assistant
Engineers nor for the purposes of promotion to the post of
Divisional Engineers (now called ’Executive Engineers’), was
any distinction made by the rules of 1939 between diploma
holders and degree-holders; that rules governing conditions
of Service could not be changed retrospectively to classify
employees on the basis of educational qualifications so as
to deny promotion to the diploma-holders; that there was in
the instant case no nexus between the classification and the
object sought to be achieved thereby and in fact the
classification defeated that object; that having regard to
the fact that from 1939 to 1970 holders of Diplomas and
Degrees were treated alike, the onus lay heavily on the
appellants to prove the necessity for differentiating
between the two, which onus was not discharged on the record
-of the case; and that, if the object of the classification
was the attainment of efficiency, the Government could have
achieved that object, and perhaps in a better measure. by
making talent, experience and efficiency as criteria for
determining promotional opportunities.
Mr. Gupte, appearing for Respondents 18 to 29, took the
stand that once there is a class of equals no discrimination
can be made among them on any ground whatsoever. Therefore,
if chances of promotion are denied to a few within a class
of equals, there is an inherent vice attaching to the
classification and no question of the reasonableness of the
new yardstick can possibly arise. In the alternative, Mr.
Gupte contended, possession of a degree qualification was
not a reasonable basis for segregating degree-holders and
diploma-holders into water tight compartments. The impugned
rule of 1970 was made in the awareness that only some
Assistant Engineers were graduates and the facts of the case
disclosed no reasonable basis for differentiation between
them and the diploma-holders in regard to promotion as
Executive Engineers. Finally, the learned counsel contended
that the
779
unreasonableness of the classification was patent from the
fact that a degree qualification was prescribed as a pre-
condition for promotion to the post of Executive Engineers
but not to higher posts. There was neither rhyme nor reason
in a rule which permitted a Diploma-holder to occupy the
post of a Superintending Engineer or the highest post of a
Chief Engineer but barred him from being considered for a
lower post in the cadre of Executive Engineers.
Mr. Garg, who appears for one of the respondents, laid
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 22
particular stress on the question of onus. He contended
that the heavy onus which lay on the appellants to justify
the classification remained wholly undischarged in
the context, especially, of the background that between
1939 and 1970 holders of Degrees and Diplomas were treated
alike in the matter of promotion from the post of an
Assistant Engineer to that of an Executive Engineer. A
system which had stood the test of time, could not,
reasonably, be proclaimed unworkable or inefficacious unless
the entire, context and requirements of the system had
undergone some significant change. Of that, says the
counsel, there is just no evidence.
Most of the arguments advanced for the respondents have been
considered and rejected by this Court in some case or the
other but before coming to that, a few points may, be kept
out of way.
An argument which found favour with Mufti Bahauddin J.,one
of the learned Judges of the Letters Patent Bench of the
High Court, and which was repeated before us is that the
"retrospective" application of the impugned rules is
violative of articles 14 and 16 of the Constitution. It is
difficult to appreciate this argument and impossible to
accept it. It is wrong to characterise the operation of a
service rule as retrospective for the reason that it
applies to existing employees. A rule which classifies such
employees for promotional purposes, undoubtedly operates on
those who entered service before the framing of the rule
but it operates in future, in the sense that it governs the
future right of promotion of those who are already in
service. The impugned rules do not recall a promotion
already made or reduce a pay-scale already granted. They
provide, for a classification by prescribing a qualitative
standard, the measure of that standard being educational
attainment. Whether a classification founded on such a
consideration suffers from a discriminatory vice is another
matter which we will presently consider but surely, the
rule cannot first be assumed to be retrospective and
then be struck down for the reason that it violates the
guarantee of equal opportunity by extending its arms over
the past. If rules governing conditions of service cannot
ever operate to the prejudice of those who are already in
service, the age of superannuation should have remained
immutable and schemes of compulsory retirement in public
interest ought to have foundered on the rock of
retroactivity. But such is, not the implication of
’servicerules nor is it their true description to say that
because they affect I existing employees they are
retrospective. It is well-settled that though employment
under the Government like that under any other master may
have a contractual origin, the Government servant acquires a
status’ on appointment to his office. As a result, his
rights and obliga-
780
tions are liable to be determined under statutory or
constitutional authority which for, its exercise, requires
no reciprocal consent. The Government can alter the terms
and conditions of its employees unilaterally and though in
modern times consensus in matters relating to public
services is often attempted to be achieved, consent is not a
pre-condition of the validity of rules of service, the
contractual origin of the service notwithstanding.
The argument on the question of onus is largely founded on
the context of facts obtaining in the case. It is urged
that for purposes of promotion to higher posts diploma-
holders were treated on par with degree-holders from 1939 to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 22
1970 and therefore, the onus must be on the appellants to
prove. facts and circumstances which necessitated a radical
departure from the old and established order. If diploma-
holders could competently fill higher posts. for over three
decades, reasons leading to the rule which renders them
wholly ineligible even from being considered for promotion
to the post of Executive Engineer ought to be established by
the appellants and, it is urged, no evidence is disclosed in
support of such reasons.
This submission is erroneous in its formulation of a legal
proposition governing onus of proof and it is unjustified in
the charge that the record discloses no evidence to show the
necessity of the new, rule. There is always a presumption
in favour of the constitutionality of an enactment and the
burden is upon him who attacks it to show that there has
been a clear transgression of the constitutional princi-
ples.(1) A rule cannot be struck down as discriminatory on
any a priori reasoning. "That where a party seeks to
impeach the validity of a rule made by a competent authority
on the ground that the rules offend Art. 14 the burden is on
him to plead and prove the infirmity is too well established
to need elaboration."1 The burden thus is on the respondents
to set out facts necessary to sustain the plea of discrimi-
nation and to adduce "cogent and convincing evidence" to
prove those facts for "there is a presumption that every
factor which is relevant or material has been taken into
account in formulating the classification"(2). In G. D.
Kelkar v. Chief Controller of Imports and Exports(?), Subba
Rao C.J. speaking for the Court has cited three other
decisions of the Court in support of the proposition that
"unless the classification is unjust on the face of it, the
onus lies-upon, the party attacking the classification to
show by pleading the necessary material before the court
that the said classification is unreasonable and violative
of Art. 16 of the Constitution."
Thus, it is no part of the appellants’ burden to justify the
classification or to establish its constitutionality.
Formal education may not always produce excellence but a
classification founded on variant educational qualifications
is, for purposes of promotion to the post of an
(1) Shri Ram Krishan Dalmia V. Justice S. R. Tendolkar
& Ors.(1) (1959] S. C. R. 279, 297 (b).
(2) State of Uttar Pradesh V. Kartar Singh [1964](6)S. C.R.
679, 687.
(3) [1967] (2) S. C. R. 29, 34.
781
Executive Engineer, to say the least, not unjust on the fact
of it and the onus therefore cannot shift from where ii
originally lay.
Respondents have assailed the classification in the clearest
terms ,but their challenge is purely doctrinaire. ’Academic
or technical qualifications can be germane only at the time
of initial recruitment; for purposes of promotion,
efficiency and experience alone must count’this is the
content of their challenge. The challenge, at best,
reflects the respondents’ opinion on promotional
opportunities in public services and one may assume that if
the roles were reversed, respondents would be interested in
implementing their point of view. But we cannot sit in
appeal over the legislative judgment with a view to finding
out whether on a comparative evaluation of rival theories
touching the question of promotion, the theory advocated by,
the respondents is not to be preferred. Classification is
primarily for the legislature or for the statutory authority
charged with the duty of framing the terms and conditions of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 22
service; and if, looked at from the standpoint of the
authority making it, the classification is found to rest on
a reasonable basis, it has to be upheld.
Our reason for saying this is to emphasize that the
respondents ought to have furnished particulars as to why,
according to them, the classification between diploma-
holders and degree-holders is not based on a rational
consideration having nexus with the object sought to be
achieved. In order to establish that the protection of the
equal opportunity clause has been denied to them, it is not
enough for the respondents to say that they have been
treated differently from others, not even enough that a
differential treatment has been accorded to them in
comparison with others similarly circumstanced. Discrimi-
nation is the essence of classification and does violence to
the constitutional guarantee of equality only if it rests on
an unreasonable basis. It was therefore incumbent on the
respondents to plead and show that the classification of
Assistant Engineers into those who hold diplomas and those
who hold degrees is unreasonable and bears no rational nexus
with its purported object. Rather than do this, the
respondents contented themselves by propounding an abstract
theory that educational qualifications are germane at the
stage of initial recruitment only. Omission to furnish the
necessary particulars was construed by this Court in two
cases as indicating that the plea of unlawful discrimination
had no basis(’). Such an infirmity in leadings led this
Court in State of Madhya Pradesh v. Bhopal Sugar Industries
Ltd. (2) to remand the matter to the High Court in order to
enable the petitioner therein to amend its petition.
Mr. Garg asked for a remand so that the respondents could
have an opportunity to plead the necessary facts but we
declined to do so as we did not propose to allow the appeal
on the narrow ground that the respondents’ plea of
discrimination was inadequate. Nor indeed
(1) Katra Educational Society V. State of Uttar Pradesh &
Ors. 1966, (3) S. C.R. 328, 336 and 337, Probhudas Morarjee
Rajkotia & Ors. V. Union of India & Ors., A. I. R. 1966 S.
C. 1044, 1047-
(2) [1964] 6. S. C. R. 846.
782
did the learned Attorney General press for a decision on any
such ,ground. We have heard the learned counsel fully on
the merits of the matter, especially as the question of onus
was not presented before the High Court in the form in which
it was presented before us. We will now advert to the
merits of the other contentions.
The Proviso to Rule 10(IIB) (1) of the 1968 Rules under
which Diploma-holders were debarred from crossing the
Qualification Bar placed at Rs. 610 need not detain us
because the learned Attorney General states that the Bar has
since been removed with retrospective effect. The 1968
scale of pay will therefore apply equally to the degree-
holders and diploma-holders in the cadre of Assistant Engi-
neers, with effect from the date on which the 1968 Rules
came into force. Respondents, accordingly, will be eligible
to reach the ceiling of the scale regardless of the fact
that they hold a diploma and not a degree in Engineering.
The main question for decision arises out of the challenge
to the Rules of 1970 under which diploma-holders in the
cadre of Assistant Engineers are not entitled even to be
considered for promotion to the next higher cadre of
Executive Engineers. Under the Schedule to those Rules,
recruitment to the cadre of executive engineers can be made
only by promotion from amongst Assistant Engineers. To that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 22
is added the impugned rider that only those Assistant
Engineers will be eligible for promotion who possess a
bachelor’s Degree in Engineering or who hold the
qualification of A.M.I.E. (Section A and B) and who have.
put in at least seven years’ service. Diploma-holders in
Engineering, like the respondents, are thus rendered
ineligible for promotion as Executive Engineers.
We have observed earlier while dealing with the question of
onus that there was no justification for the respondents’
plea that the record does not disclose the necessity for the
impugned rule of 1970. We will draw attention to the
relevant material, which is always admissible to show the
reasons and the justification for the classification. Such
reasons need not appear on the face of the rule or law which
effects the classification(1).
The seniority list of Assistant Engineers as of January 1,
1971 discloses a significant phenomenon. The list comprises
78 Assistant Engineers and omitting the very first amongst
them who was only a matriculate, the remaining 77 were
appointed as Assistant Engineers between October 19, 1960
and December 24, 1970. Prior to August 6, 1962 when the
rules of 1962 came into force, only 7 Assistant Engineers
held an Engineering Degree as against 13 who held a diploma.
The position on February 27, 1968 when the rules of 1968
came into force was that the number of degree-holders had
increased to 38 while that of diploma-holders went up from
13 to 21 only. On October 12, 1970 when the impugned rule
now under consideration came into force, there were 48
degree-holders and 26 diploma-holders in the cadre of
Assistant Engineers, excluding the last one at item No. 78
who was promoted after the promulgation of the rules but who
is
(1) Shri Ram Krishan Dalmia v. Justtice S. R. Tendolkar &
Ors., [1969] S. C. R. 279, 307-8.
783
also a degree-holder. We have advisedly taken no note of
two instances in one of which the incumbent was not
appointed as a regular Assistant Engineer and the other
where, though appointed, the person concerned did not join
the Department.
It is transparent from this analysis that till about 1968
there was a dearth of Engineering graduates. In 1962, the
ratio between graduates and diploma-holders was 1 : 2. In
1968 it became almost 2 :1 and in 1970 the position remained
more or less unchanged. The appellants were entitled to
take into account this spurt in the availability of persons
with higher educational qualifications for manning the next
higher post of promotion. In fact, it may not be
overlooked, that even under the recruitment rules of 1939
graduates in Civil Engineering were alone eligible for
direct appointment as Assistant Engineers in the Kashmir
Engineering Service. Only departmental promotions could be
made from amongst diploma-holders and that too if they had
put in 5 years’ service in the cadre of Supervisors. There
is therefore no substance in the contention that the record
sheds no light on why a change was thought necessary in a
system that had stood the test of time. In 1968 itself when
there was a proliferation in the ranks of graduates, an
attempt was made which was later rectified, to offer a
higher incentive to graduates by the placement of a
Qualification Bar. We are not called upon to adjudge its
validity for reasons already mentioned but it is obvious
that the impact of the changing pattern had to receive its
due recognition.
But then Mr, Setalvad contends that if the nature of duties
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 22
and responsibilities of the post of Executive Engineer has
undergone no significant change, there would be no
justification for restricting the field of choice to
graduates. Talent and efficiency could be found in the
ranks of diploma-holders in an equal measure and it is urged
that rather than display a mere fancy for graduates and
restrict its choice, the State should have in the interest
of an efficient service, laid the promotional chances open
to both the ranks on the basis of talent, experience and
efficiency.
This argument, as presented, is attractive but it assumes
in the court a right of scrutiny somewhat wider than is
generally recognized. Article 16 of the Constitution which
ensures to all citizens equality of opportunity in matters
relating to employment is but an instance or incident of the
guarantee of equality contained in article 14. The concept
of equal opportunity undoubtedly permeates the whole
spectrum of an individual’s employment from appointment
through promotion and termination to the payment of gratuity
and pension. But the concept of equality has an inherent
limitation arising from the very nature of the
constitutional guarantee. Equality is for equals. That is
to say that those who are similarly circumstanced are
entitled to an equal treatment.
Since the constitutional code of equality and equal
opportunity is a charter for equals, equality of opportunity
in matters of promotion means an equal promotional
opportunity for persons who fall, substantially, within the
same class. A classification of employees can therefore be
made for first identifying and then distinguishing members
of one class from those of another.
784
Classification, however, is fraught with the danger that it
may produce artificial inequalities and therefore, the right
to classify is hedged in with salient restraints, or else,
the guarantee of equality will be submerged in class
legislation inasquerading as laws meant to govern wellmarked
classes characterized by different and distinct attainments.
Classification, therefore, must be truly founded on
substantial differences which distinguish persons 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.
Judicial scrutiny can therefore extend only to the
consideration whether the classification rests on a
reasonable basis whether it bears nexus with the object in
view. It cannot extend to embarking upon a nice or
mathematical evaluation of the basis of classification, for
were such an inquiry permissible it would be open to the
courts to substitute their own judgment for that of the
legislature or the rulemaking authority on the need to
classify or the desirability of achieving a particular
object.
Judged from this point of view, it seems to us impossible to
accept the respondents’ submission that the classification
of Assistant Engineers into Degree-holders and Diploma-
holders rests on any unreal or unreasonable basis. The
classification, according to the appellants, was made with a
view to achieving administrative efficiency in the
Engineering services. If this be the object, the
classification is clearly correlated to it for higher
educational qualifications are at least presumptive evidence
of a higher mental equipment. This is not to suggest that
administrative efficiency can be achieved only through the
medium of those possessing comparatively higher educational
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 22
qualifications but that is beside the point. What is
relevant is that the object to be achieved here is not a
mere pretence for an indiscriminate imposition of
inequalities and the classification cannot be charactersized
as arbitrary or absurd. That is the farthest that judicial
scrutiny can extend.
On the facts of the case, classification on the basis of
educational qualifications made with a view to achieving
administrative efficiency cannot be said to rest on any
fortuitous circumstance and one has always to bear in mind
the facts and circumstances of the case in order to judge
the validity of a classification. The provision in the 1939
Rules restricting direct recruitment of Assistant Engineers
to Engineering graduates, the dearth of graduates in times
past and their copious flow in times present are all matters
which can legitimately enter the judgment-of the rule-making
authority. In the light of these facts, that judgment
cannot be assailed as capricious or fanciful. Efficiency
which comes in the trail of a higher mental equipment can
reasonably be attempted to be achieved by restricting
promotional opportunities to those possessing higher
educational qualifications. And we are concerned with the
reasonableness of the classification, not. with the precise
accuracy of the decision to classify nor with the question
whether the classification is scientific. Such tests have
long since been discarded. In fact American decisions have
gone as far as saying that classification would offend
against the 14th Amendment of
78 5
the American Constitution only if it is "purely arbitrary,
oppressive or capricious"(’) and the. inequality produced in
order to encounter the challenge of the Constitution must be
"actually and palpably unreasonable and arbitrary"(2). We
need not go that far as the differences between the two
classes-graduates and Diploma-holders--furnish a reasonable
basis for separate treatment and bear a just relation to the
purpose of the impugned provision.
Educational qualifications have been recognized by this
Court as a safe criterion for determining the validity of
classification. In State of Mysore v. P. Narasing Rao (3)
where the cadre of Tracers was reorganized into two, one
consisting of matriculate Tracers with a higher scale of pay
and the other of non-matriculates in a lower scale, it was
held that articles 14 and 16 do not exclude the laying down
of selective tests nor do they preclude the Government from
laying down qualifications for the post in question.
Therefore, it was open to the Government to give preference
to candidates having higher educational qualifications. In
Ganga Ram v. Union of India(4), it was observed that "The
State which encounters diverse problems arising from a
variety of circumstances is entitled to lay down conditions
of efficiency and other qualifications for securing the best
service for being eligible for promotion in its different
departments." In’ The Union of India v. Dr. (Mrs.) S. B.
Kohli(5), a Central Health Service Rule requiring that a
professor in Orthopaedics must have a post-graduate degree
in the particular speciality was upheld on the ground that
the classification made on the basis of such a requirement
was not "without reference to the objectives sought to be
achieved and there can be no question of discrimination".
The argument that a degree qualification was not the only
criterion of suitability was answered laconically as
strange".
Under the Schedule to the 1970 rules, a degree qualification
is prescribed as a condition for promotion to the post of an
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 22
Executive Engineer from the cadre of Assistant Engineers.
But there is no rule requiring a similar qualification for
promotion to the post of Superintending Engineer which is
next higher to the post of Executive Engineer or for
promotion to the apex post of the Chief Engineer. The
Schedule provides that recruitment to these two categories
of posts shall be made by promotion from amongst persons in
cadres next below, who possess experience for a stated
number of year. This circumstance is pressed into service
by the respondents in support of their plea that the whole
basis of classification is unreal and that the true object
could not be the attainment of higher administrative effi-
ciency. If it was thought necessary to prescribe a Degree
qualification in order to achieve efficiency in the post of
Executive Engineers, ex
(1) Joseph Radice v. People of the State of New York, 68 L.
Ed. 690, 695, American Sugar Ref. Co. v. Louisiana, 45 L.
EL]. 102,103.
(2) 68 L. Ed. 690, 695; Arkansas Natural Gas Co. v,
Railroad Commission 67 L. Ed. 705, 710.
(3) [1968] (1) S. C. R. 407. State of Mysore & Anr. vs.
P. Narasing Rao.
(4) (1970] (3) S. C. R. 481, 488.
(5) A. I. R. 1973 S. C. 811, 813.
786
hopothesi it should have been equally imperative, if not
more to pro vide for a similar condition in regard to
promotion to higher posts thus runs the argument.
This argument means that any service reform must embrace
every hierarchy or none at all. It is often impossible or
at any rate inexpedient to reach and remedy all forms of
evil, wherever present. Reform must begin somewhere if it
has to begin at all and therefore, the administrator who has
nice and complex problems to solve, must be allowed the,
freedom to proceed tentatively, step by step. Justice
Holmes gave in a similar context a significant warning that
: "We must remember that the machinery of Government would
not work if it were not allowed a little play in its
joints".(’)
The seniority list of January 1, 1971 shows how very unreal
the argument is that the qualification rule not having been
extended to the higher echelons of service, it can bear no
nexus with the attainment of administrative efficiency in a
comparatively lower hierarchy of Assistant Engineers. On
January 1, 1971 which was soon after the publication of the
1970 Rules, there were 6 persons in the cadre of
Superintending Engineers all of whom, except one, are
graduates. , The one at the top is an L.E.E. but he entered
service in 1939 and must now be quite on the verge of
retirement. There is therefore but slender chance that a
non-graduate could climb into the top position of a Chief
Engineer, which post can, under the rules of 1970, be filled
only by promotion from amongst Superintending Engineers.
Promotion to the cadre of Superintending Engineers can be
made only from amongst Executive Engineers and the,
Seniority list shows that out of 22 Executive Engineers, 19
are graduates and only 3 are diploma-holders. Out of the
19, the first 15 according to seniority are all graduates so
that the chances of a diploma-holder being promoted as a
Superintending Engineer are rairly remote. With the new
rules coming info force, all Executive Engineers will, after
October 12, 1970, be appointed from amongst graduates in the
rank of Assistant Engineers and therefore the cadre of
Executive Engineers will soon consist of graduates
exclusively. The Governor was entitled to give weight to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 22
these practical considerations and to restrict the operation
of the impugned rule to cases where their application was
imperative. Dealing with practical exigencies, a rulemaking
authority may be, guided by the realities of life, just as
the legislature, while making a classification "is free to
recognize degrees of harm and it may confine its
restrictions to those classes of cases where the need is
deemed to be the clearest (2). if the law presumably bits
the evil where it is most felt, it is not to be overthrown
because there are other instances to which it might have
been applied.(s)
Only one point remains to be considered and it requires a
close attention as it claims to have the authority of
leading decisions rendered by this Court. We have relegated
this point to a rear position because it was necessary, for
a proper understanding thereof, to clear the ground of
various other doubts dealt with above. A neat point can now
be framed and discussed.
(1)Bain Peanut Co. v. Pinson 75 L. ed. 482, 489.
(2) Miler vs. Wilson, 59 L. ed. 632.
(3) Keoke Consol. Coke Co. v. Taylor 53 L. ed. 1288,1289.
787
If persons recruited from different sources are integrated
into one class, they cannot thereafter be classified so as
to permit in favour of some of them a preferential treatment
in relation to others. That is the argument before us
which, applied to the facts of the case, means in plain
terms this : Direct recruits and promotees having been ap-
pointed as Assistant Engineers on equal terms, they
constitute an integrated class and for purposes of promotion
they cannot be classified on the basis of educational
qualifications.
We have drawn attention to three decisions of this Court
(Narsing Rao’s case, Ganga Ram’s case and Dr. Mrs. Kohli’s
case) in which classification on the basis of educational
qualifications was upheld. In Narsing Rao’s case(’,),
Tracers doing equal work were classified into two grades
having unequal pay, the basis of the classification being
higher educational qualifications. In Dr. (Mrs.) Kohli’s
case(2), as refined a classification as between an F.R.C.S.
in general surgery and an F.R.C.S. in Orthopaedics was
upheld in relation to appointment to the post of a Professor
of Orthopaedics. But these cases are sought to be
distinguished on the authority of the decision of this Court
in Roshan Lal Tandon v. Union of India(3). That case is
crowded with facts and requires a careful consideration for
its proper understanding.
Vacancies in Grade ’D’ of Train Examiners were filled in
Roshan Lal’s case by (a) direct recruits i.e., apprentice
train examiners and (b) promotees from the class of skilled
artisans, in the ratio of 50 :50. Promotion from Grade ’D’
to Grade ’C’ was to be made on the basis of seniority-cum-
suitability. In October, 1965 the Railway Board issued a
notification providing that 80% of the vacancies in Grade
’C’ would be filled up from the class of apprentice train
examiners recruited on and after April 1, 1966 and the
remaining 20% from amongst the train examiners in Grade ’D’.
The notification further provided That apprentice train
examiners who were absorbed in Grade ’D’ before April 1966
would be accommodated en bloc in Grade ’C’ in the 80% of the
vacancies, without undergoing any selection. With regard to
20% of the remaining vacancies it was provided that the
promotion would be on the basis of selection and not on the
basis of seniority-cumsuitability. The petitioner, Roshan
Lal Tandon, who had entered Railway service in 1954 as a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 22
skilled artisan and was later selected and confirmed in
Grade’D’ as a Train Examiner filed a writ petition in this
Court challenging under articles 14 and 16 of the
Constitution, that part of the notification which gave
favourable treatment to apprentice train examiners who had
already been absorbed in Grade ’D’. His case was that be,
along with direct recruits, formed one class in Grade ’D’
and according to the conditions of service applicable to
them, seniority was to be reckoned from the date of
appointment as Train Examiners in Grade ’D’ and promotion to
Grade ’C’ was to be, on the basis of seniority, cum-
suitability, irrespective of the source of recruitment. His
contention was that since he was appointed to Grade ’D’
after undergoing the necessary selection and training and
since he was integrated with the others who were appointed
to Grade ’D’ by direct recruitment, no differentiation could
be made an between him and the direct recruits in the matter
of promotion to grade ’C’.
(1) [ 1 9681 (1) S. C. R. 407 (2) A. 1. R. 1973
S. C. 81 1.
(3) [19681 (1) S. C. R. 185.
788
The Constitutional objection taken by Roshan Lal was upheld
by this Court with these observations :
"At the time when the petitioner and the
direct recruits were appointed to Grade ’D’,
there was one class in Grade ’D’ formed of
direct recruits and the promotees from the
grade of artisans. The recruits from both the
sources to Grade ’D’ were integrated into one
class and no discrimination could thereafter
be made in favour of recruits from one source
as against the recruits from the other source
in the matter of promotion to Grade ’C’. To
put it differently, once the direct recruits
and promotees are absorbed in one cadre, they
form one class and they cannot be
discriminated for the purpose of further
promotion to the higher grade ’C’. In the
present case, it is not disputed on behalf of
the first respondent that before the impugned
notification was issued there was only one
rule of promotion for both the departmental
promoters and the direct recruits and that
rule was seniority-cum-suitability, and there
was no rule of promotion separately made for
application to the direct recruits. As a
consequence of the impugned notification a
discriminatory treatment is made in favour of
the existing Apprentice Train Exami
ners who
have already been absorbed in Grade
’D’ by
March 31, 1966, because the notification
provides that this group of Apprentice Train
Examiners should first be accommodated en bloc
in grade C’ upto 80 per cent of vacancies
reserved for them without undergoing any
selection. As regards the 20 per cent of the
vacancies made available for the category of
Train Examiners to which the petitioner
belongs the basis of recruitment was selection
on merit and the previous test of seniority-
cum-suitability was abandoned. In our
opinion, the present case falls within the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 22
principle of the recent decision of this Court
in Mervyn v. Collector [1966(3) S.C.R. 600]."
The key words of the judgment are : "The, recruits from both
the sources to Grade ’D’ were integrated into one class and
no discrimination could thereafter be made in favour of
recruits from one source as against the recruits from the
other source in the matter of promotion to Grade ’C"’.
(emphasis supplied). By this was meant that in the matter
of promotional opportunities to Grade ’C’, no discrimination
could be made between promotees and direct recruits by
reference to the source from which they were drawn. That is
to say, if apprentice Train Examiners who were recruited
directly to Grade ’D’ as Train Examiners formed one common
class with skilled artisans who were promoted to Grade ’D’
as Train Examiners, no favoured treatment could be given to
the former merely because they were directly recruited as
Train Examiners and no discrimination could be made as
against the latter merely because they were promotees. This
is the true meaning of the observation extracted above and
no more than this can be read into the sentence next
following : "To put it differently, once
789
the direct recruits and promotees are absorbed into one
cadre, they form one class and they cannot be discriminated
for the purpose of further promotion to the higher Grade ’C’
". In terms, this was just a different way of putting what
had preceded.
Thus, all that Roshan Lal’s case lays down is that direct
recruits and promotees lose their birth-marks on fusion into
a common stream of service and they cannot thereafter be
treated differently by reference to the consideration that
they were recruited from different sources. Their genetic
blemishes disappear once they are integrated into a common
class and cannot be revived so as to make equals unequals
once again.
Roshan Lal’s case is thus no authority for the proposition
that if direct recruits and promotees are integrated into
one class, they cannot be classified for purposes of
promotion on a basis other than the one that they were drawn
from different sources. In the instant case,. classi-
fication rests fairly and squarely on the consideration of
educational qualifications : Graduates alone shall go into
the higher post, no matter whether they were appointed as
Assistant Engineers directly or by promotion. The
discrimination therefore is not in relation to the source of
recruitment as in Roshan Lal’s case.
It is relevant, though inconclusive, that the very Bench
which decided Roshan Lal’s case held about a fortnight later
in Narsing Rao’s case that higher educational qualifications
are a relevant consideration for fixing a higher pay scale
and therefore Matriculate Tracers could be given a higher
scale than non-matriculate Tracers, though their duties were
identical. Logically, if persons recruited to a common
cadre can be classified for purposes of pay on the basis of
their educational qualifications, there could be no
impediment in classifying them on the same basis for
purposes of promotion. The ratio of Roshan Lal’s case can
at best be an impediment in favouring persons drawn from one
source as against those drawn from another for the reason
merely that they are drawn from different sources.
There is an aspect of Roshan Lal’s case which may not be
ignored. The Union of India had contended by its counter-
affidavit therein that the reorganization of the service was
made with a view to obtaining a better and more technically
trained class of Train Examiners which had become necessary
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 22
on account of the acquisition of modern types of Rolling
Stock, complicated designs of carriages and wagons and
greater speed of trains under the dieselisation and
electrification programmes. This contention, though
mentioned in the affidavit, was not placed before the court
as is transparent from the judgment. What is impact would
have been on the ultimate conclusion need not be speculated,
for it is enough for understanding the true ratio of the
judgment to say that the case was decided on the sole basis
that persons recruited from different sources were
classified according as whether they were appointed directly
or by promotion. That is why the key passage cited by us
from the judgment winds up by saying that the "case falls
within the principle of........ the decision.... in Mervyn
v. Collector".
790
In Mervyn Coutindo & Ors. v. Collector of Customs, Bombay &
Ors.,(1) no question arose in regard to the validity of a
classification based on educational qualifications. The
question there was whether a rotational system for fixing
seniority was discriminatory if the recruitment was partly
by promotion and partly directly. It was held that there is
no inherent vice in such a system if the service is composed
in fixed proportion of direct recruits and promotees. The
rotational system could therefore be adopted in fixing
seniority in the cadre of Appraisers, to which recruitment
was in actual practice made directly and by promotion in the
ratio of 50 : 50. But different considerations were held to
arise when the same, system was applied for fixing seniority
in the cadre of Principal Appraisers because, there was only
one source from which the Principal Appraisers were drawn,
namely Appraisers. The ratio (it- the judgment is : "The
rotational system cannot.... apply when there is only one
source of recruitment". This is the principle within which
Roshan Lal’s case was expressed to Neither the one nor the
other of the two cases was concerned with the question which
arises for consideration before us. The classification of
which we have to determine the validity is not made in
relation to the source of recruitment. Therefore cases like
Roshan Lal’s, Mervyn Coutindo’s and Pandit’s (2) fall in a
class apart. The case last mentioned is a typical instance
of that class, where directly appointed Mamlatdars were
accorded a favoured treatment qua the promotee Mamlatdars in
the matter of promotion to the post of Deputy Collector.
Mamlatdars, whether appointed directly or by promotion,
constituted one class and therefore it was held that no
reservation could be made in favour of the directly
appointed Mamlatdars for promotion to the cadre of Deputy
Collectors.
We are therefore of the opinion that though persons
appointed directly and by promotion were integrated into a
common class of Assistant Engineers, they could, for
purposes of promotion to the cadre of Executive Engineers,
be classified on the basis of educational qualifications.
The rule providing that graduates shall be eligible for such
promotion to the exclusion of diploma-holders does not
violate articles 14 and 16 of the Constitution and must be
upheld.
But we hope that this judgment will not be construed as a
charter for making minute and microcosmic classifications.
Excellence is, or ought to be, the goal of all good
government and excellence and equality are not friendly bed-
fellows. A pragmatic approach has therefore to be adopted
in order to harmonize the requirements of public services
with the aspirations of public servants. But let us not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 22
evolve, through imperceptible extensions, a theory of
classification which may subvert, perhaps submerge, the
precious guarantee of equality. The eminent spirit of an
ideal society is equality and so we must not be left to ask
in wonderment. What after all is the operational residue of
equality and equal opportunity ?
For reasons indicated, we allow the appeal but there will be
no order as to costs.
(1) [1966] (3) S. C. R. 600.
(2) S. M. Pandit v. State of Gniarar, A. 1. R. 1972 S. C.
252
791
KRISHNA IYER, J. We fully endorse what has been said by our
learned brother Chandrachud, J., but the profound depths of
equal justice in public employment touched in his final
paragraph (with which we ardently agree) impel a few
concurring observations of our own.
In this unequal world the proposition that all men are equal
has working limitations, since absolute equality leads to
Precrustean cruetly or sanctions indolent inefficiency.
Necessarily, therefore, an imaginative and constructive
modus vivendi between commonness and excellence must be
forged to make the equality clauses viable. This pragmatism
produced the judicial gloss of ’classification’ and
’differentia’, with the by-products of equality among equals
and dissimilar things having to be treated differently. The
social meaning of arts. 14 to 16 is neither dull uniformity
nor specious ’talentism’. It is a process of producing
quality out of larger areas of equality extending better
facilities to the latent capabilities of the lowly. It is
not a methodology of substitution of pervasive and slovenly
mediocrity for activist and intelligent-but not snobbish and
uncommitted-cadres. However, if the State uses
classification casuistically for salvaging statusand
elitism, the point of no return is reached for arts. 14 to
16 andthe Courts jurisdiction awakens to dadden
such manoeuvres. Thesoul of art. 16 is the promotion of
the common man’s capabilities,over- powering
environmental adversities and opening up full opportunities
to develop in official life without succumbing to the
sophistic argument of the elite that talent is the privilege
of the few and they must rule, wriggling out of the
democratic imperative of arts. 14 and 16 by the theory of
classified equality which at its worst degenerates into
class domination.
The relevance of these abstract remarks to the present case
is obvious. Engineers with diplomas are likely to be drawn
from poorer families and not necessarily because they are
incapable of making the ’degree’ grade. An opportunity for
them to level up, through experience and self-study, with
their more fortunate degree-holding meritocracy, is of the
essence of equal opportunity for people with dragging
backgrounds. If economically, and therefore .
educationally-, handicapped men distinguish themselves, they
are heroes and should be honoured and not kept humble
through life on account of the original sin of inferior
qualifications. Indeed ’ diploma holders in that Himalayan
State were good enough, in the past decades, to go to the
top of the ladder, as the facts of this case admittedly
disclose. However, in these young days few engineering
graduates in the State and few engineering colleges in the
country compelled Government to recruit diploma holders and
promote them to higher offices. But circumstances have
changed, needs have increased, availabilities have expanded
and inequalities at the educational level have been partly
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 22
eliminated. And so personal policy, with an eye on
efficiency, has changed. While we agree with counsel that
’chill penury’ should not ,repress their noble rage’, still
during our transitional developmental stage the sacrifice of
technical proficiency at the altar of wooden equality is an
unreasonable injury the State cannot afford to self inflict.
The
7 9 2
technology of equal opportunity is to assume diffusion of
talent and to afford in-service facilities, through
relaxation of rules and otherwise, to the weaker members to
acquire better skills.
The wise and tonic words of our learned brother, if we may
say so with great deference, are however portentous. While
striking a balance between the long hunger for equal chance
of the lowlier and the disturbing concern of the community
for higher standards of performance, the State should not
jettison the germinal principle of equality altogether. [The
dilemma of democracy is as to how to avoid validating the
abolition of the -difference between the good and the bad in
the name of equality and putting to sleep the constitutional
command for expanding the areas of equal treatment for the
weaker ones with the dopeof ’special qualifications’
measured by expensive and exotic degrees. These are
perhaps meta-judicial matters left to the other branchesof
Government, but the Court must hold the Executive within the
loading strings of egalitarian constitutionalism and
correct, by judicial review, episodes of subtle and shady
classification grossly violative of equal justice. That is
the heart of the matter. That is the note that rings
through the first three fundamental rights the people have
given to themselves.]
Mini-classifications based on micro-distinctions are false
to our egalitarian failth and only substantial and
straightforward classifications plainly promoting relevant
goals can have constitutional validity. To overdo
classification is to undo equality. If in this case Govern-
ment had prescribed that only those degree holders who had
secured over 70% marks could become Chief Engineers and
those with 60% alone be eligible to be Superintending
Engineers or that foreign degrees would be preferred we
would have unhesitatingly voided it.
The role of classification may well recede in the long run,
and the finer emphasis on broader equalities implicit in the
concluding thought of the leading judgment will abide. The
decision in this case should not-and does not-imply that by
an undue accent on qualifications the Administration can out
back on the larger tryst of equalitarianism or may hijack
the founding and fighting faith of social justice into the
enemy camp of intellectual domination by an elite. The
Court, in extreme cases, has to be the sentinel on the qui
vive.
K.B.N.
Appeal allowed.
793