Full Judgment Text
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PETITIONER:
V. J. THOMAS AND ORS.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT23/04/1985
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
MISRA RANGNATH
CITATION:
1985 AIR 1055 1985 SCR (3) 881
1985 SCC Supl. 7 1985 SCALE (1)1068
CITATOR INFO :
R 1988 SC2073 (20)
F 1989 SC1256 (4)
ACT:
Civil Service-Telegraphic Engineering Service (Group
Posts) Recruitment Rules, 1981, Note to sub-clause (4) of
Appendix I-Constitutional validity of.
HEADNOTE:
Clause (1) in Appendix I to the Telegraphic Engineering
Service (Class II) Recruitment Rules, 1966 (1966 Rules, for
short), provided that promotion of a Junior Engineer to the
post of Assistant Engineer shall be entirely by promotion on
the basis of selection of Junior Engineers through a
qualifying departmental examination. Sub-clause (1) provided
that the departmental qualifying examination shall be open
to Junior Engineers who were recruited and absorbed in that
grade against the vacancies of a year, ordinarily not less
than five years prior to the year of announcement of the
said examination. Sub-clause (4) of Appendix I to the
Telegraphic Engineering Service (Group Posts) Recruitment
Rules, 1981 (1981 Rules, for short) which superseded the
1966 Rules envisaged a qualifying- cum-competitive
examination for promotion to the post of Assistant
Engineers. and the Note appended to sub-cl. (4) provides
that for a period of 2 years after the commencement of the
1981 Rules, the first two examinations shall only be
competitive for which the eligibility shall be restricted to
only those officers who have already qualified in the
Departmental Qualifying Examination held before the
commencement of these Rules."
The appellants/Junior Engineers, who were recruited in
the year 1973, challenged in the High Court the
constitutionality of the Note appended lo clause (4) of
Appendix I to 1981 Rule 5 on the ground that note 4 appended
to clause I introduces discrimination in that Junior
Engineers Or 1972 and prior batches will alone be able, if
they had cleared the qualifying examination, to take the
competitive examination which would be held under 1981 Rules
and as only the competitive examination was to be held,
Junior Engineers of 1973 and subsequent batches, even if
they have put in five years of qualifying service, would be
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denied an opportunity to take the examination, and that this
is an invidious manner of denying them the opportunity to
take the examination and thereby deny them equality of
opportunity in the matter of promotion. The learned Single
Judge held that the Note to clause (4) of Appendix I to the
1981 Rules was ultra vires. On appeal by the respondent
Union of India, the Division Bench of the High Court held
that the Note was not ultra Vires.
882
Dismissing the appeal by the appellants, the Court,
^
HELD: (I) By sheer passage of time, this appeal and
even the main petition have become infractions. Even in
service jurisprudence the clock of history, sometimes,
cannot be put back and even if it is found that the
respondents have committed an error in implementing the
statutory rules no relief can be granted. This is one such
case. [885F-G]
(2) If by 1982, nearly 4,000 Junior Engineers of pre-
1973 batches had become eligible for taking competitive
examination, the department would be perfectly justified in
keeping the examination open only to persons who have put in
such long service and leaving others to wait for the next
examination. If for taking examination this aspect
introduces classification, it is based on rational and
intelligible differentia which has a nexus to the object
sought to be achieved. By the note, for a period of two
years only pre-1973 Junior Engineers who had cleared
qualifying examination were given a chance to take
competitive examination. If this introduces a
classification, it is valid. It caters to a well-known
situation in service jurisprudence that there must be some
ratio of candidates to vacancies. And it is based on long
experience as a rational basis for classification. Viewed
from this angle, there is nothing in the policy underlying
the note to rule (43 as being either discriminatory or
arbitrary or denying equality of opportunity in the matter
of promotion. lt had the desired effect of not having glutt
of Junior Engineers taking examination compared to fewer
number of vacancies. Length and experience were given
recognition by the note. The promotion can be thus by stages
exposing the promotion; l avenue gradually to persons having
longer experience. This seems to be the policy underlying
the note and therefore there is nothing improper or
unconstitutional in it.
[888D-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2183 of
1984.
From the Judgment and Order dated 28.3.1984 of the
Kerala High Court in W. P. No. 131 of 1982.
. M. K. Ramamurthi, V. J. Francis and N. M. Popli for
the Appellants.
G. D. Gupta, Ms. Halida Khatun, Subba Rao, R. N.
From the Judgment and Order dated 28.3.1984 of the
Kerala High Court in W. P. No. 131 of 1982.
Poddar, Ms. Subhadra, Ms. Alka, B. B. Tawaklcy and Mrs.
Urmila Kapur for the Respondents.
The Judgment of the Court Was delivered by
DESAI, J. Chagrined by the failure of the attempt
to pressurise junior engineers to boycott the examination
and further irritated by the holding of the examination the
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appellants have knocked at the
883
doors of this Court, putting forth utterly unsustainable
contentions.
Appellants are junior engineers in the Telegraph Wing
of the Post & Telegraph Department. The next avenue of
promotion for a Junior Engineer is the post of Assistant
Engineer. Promotions were governed by Telegraphic
Engineering Service (Class Il) Recruitment Rules, 1966 (
’1966 Rules’ for short ). By these rules Telegraphic
Engineering Service ( Class Il ) was formed. The Rules were
to apply to posts as specified in Clause (I) of the Schedule
which specified the post of Assistant Engineer and other
equivalent posts having allied designations. Clause (I) in
Appendix I to the 1966 Rules provides that recruitment to
the service shall be entirely by promotion on the basis of
selection of Junior Engineers through a qualifying
departmental examination. An approved list shall he’
prepared by a duly constituted Departmental Promotion
Committee, by selection from amongst the officials who
qualifying the departmental examination. Sub-Clause (4)
provided that the departmental qualifying examination shall
be open to Junior Engineers who fulfill, amongst others, the
condition specified therein. It reads as under:
"Those recruited and absorbed in that grade
against the vacancies of a year, ordinarily, not less
than five years prior to the year of announcement of
the said examination.
These rules were in force till superseded by
Telegraphic Engineering Service (Group Posts) Recruitment
Rules, 1981 (’1981 Rules’ for short) enacted in exercise of
the power conferred by the proviso to Article 309 of the
Constitution with effect from May 7, 1981. The controversy
centers round the Note appended to sub-clause (4 of Appendix
I of 1981 Rules which reads as under:
"40 There shall be normally one examination,
consisting of two parts called Qualifying-cum-
Competitive Examination for promotion to the Service
and shall be held at least once in a calendar year in
the manner and in accordance with the syllabus
prescribed in Appendix Ill to these rules.
Note: After the commencement of these rules, the
first two examinations shall only be competitive for
which the eligibility shall be restricted to only those
officers who have
884
already qualified in the Departmental Qualifying
Examination held before the commencement of these
rules."
Appellants were recruited as Junior Engineers in the
year 1973. ln other words, they belong to 1973 batch. Their
grievance is that they have completed five years of service
which conferred on them eligibility to appear at an
examination which was to be held under 1966 Rules. 1966
Rules contemplated only one examination styled as Qualifying
Departmental Examination. 1981 Rules which superseded 1966
Rules provide for one examination to be held in two parts
namely Qualifying Examination and Competitive Examination.
Before one is permitted to take a Competitive Examination he
has to clear Qualifying Examination. In short, if one has
not qualified at the Qualifying Examination he can not take
the Competitive Examination. The appellants’ grievance is
that from 1973 to 1982 or to be specific after 1978 when
they became eligible to take Qualifying Examination no
Qualifying Examination was held till May 7, 1981 when 1966
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Rules were superseded by 1981 Rules which introduced the
concept of Competitive Examination which could alone be
taken after in qualifying the Qualifying Examination and for
a period of two years as per the Note appended to clause (4)
Qualifying Examination was not to be held. The contention is
that this is an invidious manner of denying them the
opportunity to take the examination and thereby deny them
equality of opportunity in the matter of promotion.
Appellants accordingly filed O.P. No. 5714/81 under
Art. 226 of the Constitution in the High Court of Kerala
impugning the constitutionality of the Note appended to
clause (4) of Appendix I to 1981 Rule.A learned Single Judge
of the High Court, before whom the petition came up for
hearing, held that the policy reflected in the Note appended
to clause (4) of Appendix I to 1981 Rules is irrational as
it has no reasonable connection with the needs of the office
or the object sought to be attained.A direction was given
that the Note shall be applied to the appellants. By the
judgment rendered on March 9, 1982, the learned Judge gave a
further direction that the department can either hold the
over-due qualifying examination of 1980 or it can hold the
qualifying-cum-competitive examination but it must be done
forthwith so that the appellant who were petitioners before
the High Court may not be altogether
885
excluded from the examination or examinations to be held.
The respondents to the writ petition, the Union of
India and others filed Writ Appeal No. 131 of 1982 which
came up before a Division Bench of the High Court. The
Division Bench disagreed with the learned Single Judge
observing that the Note to Rule 4 is not ultra-vires but
this was subjects to the further directions given by the
Division Bench. Taking note of the fact that in the
meantime, a competitive examination was conducted, a
direction was given that the result be published and the
candidates who are declared successful in the examination
should be appointed to 33-1/3% of the vacancies which arose
between May 7, 1981 and May 7, 19 82.A further direction was
given that the second competitive examination contemplated
in note to clause (4) must be conducted after a qualifying
examination as envisaged in 1966 and/or 1981 Rules is
conducted within a period of six months from the date of the
judgment and all those examinees found declared successful
at the qualifying examination be permitted to take the
competitive examination which must be held within six months
from the date of the result of the earlier examination.A
direction was given that the candidates declared successful
at the competitive examination be appointed to 33-1/3% quota
of posts in the vacancies that arose between May 7, 1982 and
May 7, 1983. There was some further directions which are
hardly material for the present purpose. The writ appeal was
disposed of in these terms. Original petitioners aggrieved
by the decision of Division Bench have filed this appeal by
special leave.
By sheer passage of time, this appeal and even the main
petition have become infructuous. Even in service
jurisprudence the clock of history, sometimes, cannot be put
back and even if it is found that the respondents have
committed an error in implementing the statutory rules no
relief can be granted. This is one such case.
Appellants are Junior Engineers of the 1973 batch
belonging to the service styled as Telegraphic Engineering
Service (Class II) re-designated as Telegraphic Engineering
Service (Group Posts). Appellants as Junior Engineers can
look forward to become Assistant Engineers by promotion.
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Indisputably, the recruitment to the post of Assistant
Engineer in the service is by promotion from
886
the cadre of Junior Engineers. Under the 1966 Rules, Junior
Engineers would become eligible for promotion on qualifying
at a qualifying examination. The eligibility criterion for
taking the examination was service of five years. Appellants
who are Junior Engineers of 1973 batch became eligible for
taking the examination that may be held in 1978 and onwards.
Once in November, 1980 and another in January, 1981,
programme of holding qualifying examination, where 1973
recruits could have appeared, was announced but subsequently
cancelled and on May 7, 1981, 1966 Rules were superseded by
1981 Rules.
1981 Rules envisaged a qualifying-cum-competitive
examination. Eligibility criterion for taking competitive
examination was successful clearance of qualifying
examination. Therefore, unless a qualifying examination is
held one would have no chance to take competitive
examination. For 1973 recruits no qualifying examination is
held. In 1981 Rules by a note appended to clause (4) of
Appendix 1, it was provided that the next two examinations
under 1981 Rules would only be competitive examination. The
sum total of these developments would certainly come in the
way of appeallants who are of 1973 batch from taking
competitive examination and unless they qualify at that
examination they would not be eligible for promotion to the
post of Assistant Engineer.
In 1982 a competitive examination was held. Junior
Engineers who were recruited prior to 1973 and who had
qualified at the qualifying examination held in August 1980
could appear at this competitive examination. As Junior
Engineers of 1973 and sub" sequent batches were not admitted
to qualifying examination held in 1982 and as no qualifying
examination was held in November 1980 and January 1981 and
as two examinations under the 1981 Rules were only to be
competitive examination, certainly they have been denied an
opportunity to take the examination. Appellants who
similarly situated persons tried extra-constitutional
methods to pressurise the powers that be, from holding the
qualifying examination and subsequently from declaring its
results. This Court had to interpose to put down such
pressure tactics by a mandatory direction given at an
interim stage that the results of the examination already
held must be declared. We are informed that the results
have been declared.
887
Mrs. Urmila Kapoor, learned counsel represented one
such successful candidate. Even though the results are
declared, the follow-up action of promotion and appointment
has not been taken. We propose to give appropriate
directions in this matter.
In the backdrop of these facts, can it be said that
the appelIants have been victimised or subjected to
discriminatory treatment or have been denied equality of
opportunity in the matter of pro motion. Appellants do not
question the legality of rules which prescribe a qualifying-
cum-competitive examination for becoming eligible for
promotion to the post of Assistant Engineer. Their grievance
is that note 4 appended to clause I introduces
discrimination In that Junior Engineers of 1972 and prior
batches will alone be able, if they had cleared the
qualifying examination, to take the competitive examination
which would be held under 1981 Rules and as only the
competitive examination was to be held, Junior Engineers of
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1973 and subsequent batches, even if they have put in five
years of qualifying service, would be denied an opportunity
to i take the examination. The learned Single Judge of the
High Court held the note to be ultra-vires. We find it
difficult to agree with the view of the learned Single Judge
in this behalf. However the Division Bench has clearly
opined that the note is not ultra-vires.
Mr. Ramamurthy, learned counsel for the appellants
contended that the note inheres the pernicious tendency of
denying equality of opportunity in the matter of taking
examination because it permits the department to provide a
bottleneck coming in the way of Junior Engineers of the 1973
batch from taking the competitive examination by not holding
the qualifying examination. We see nothing wrong in the
policy disclosed by the note. lt was pointed out that by
1982 nearly 7, 000 Junior Engineers had become eligible for
taking competitive examination. There was some dispute about
the figure but we are prepared to accept the figure as given
by Mr. Ramamurthy, learned counsel that 4, 000 Junior
Engineers of pre- ‘ 1973 batch were qualified for taking
competitive examination. Mr. Ramamurthy contended that if
the eligibility criterion is five years of service DO
artificial road-block could be created so as to come in the
way of such qualified Junior Engineers from taking the
examination. As an additional string to the bow, it was
submitted that if the purpose of holding a competitive
examination is to select best all eligible persons must be
permitted to take the examination and ll
888
no artificial barrier need to be created. It was submitted
that not holding of the qualifying examination creates such
an impermissible road-block in the way of Junior Engineers
of 1973 and subsequent batches from taking competitive
examination.
If by 1982, more than 4, 000 Junior Engineers of pre-
1973 batch had become eligible to take the examination and
if the accumulated number of vacancies was around 300, it is
difficult to accept the submission of Mr. Ramamurthy that
everyone who has just put in five years of service must be
permitted to take the examination. It is a known-principle
of service jurisprudence that even though mini mum
eligibility criterion is fixed enabling one to take the
examination yet the examination can be confined on a
rational basis to recruits upto a certain number of years.
That constitutes recognition of long experience and not
permitting some irate junior to score a march. If by 1982,
nearly 4, 000 Junior Engineers of pre-1973 batches had
become eligible for taking competitive examination, the
department would be perfectly justified in keeping the
examination open only to persons who have put in such long
service and leaving others to wait for the next examination.
If for taking examination this aspect introduces
classification, it is based on rational and intelligible
differentia which has a nexus to the object sought to be
achieved. By the note, for a period of two years only pre-
1973
Junior Engineers who had cleared qualifying examination
were given a chance to take competitive examination. If this
introduces a classification, it is valid. It caters to a
well-known situation in service jurisprudence that there
must be some ratio of candidates to vacancies. And it is
based on long experience as a rational basis for
classification. Viewed from this angle, we find nothing in
the policy underlying the note to rule (4) as being either
discriminatory or arbitrary or denying equality of
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opportunity in the matter of promotion. It had the desired
effect of not having a glutt of Junior Engineers taking
examination compared to fewer number of vacancies. Length
and experience were given recognition by the note The
promotion can be thus by stages exposing the promotional
avenue gradually to persons having longer experience. This
seems to be the policy underlying the note and we see
nothing improper or unconstitutional in it.
However the situation has materially changed. More than
4 years elapsed sine the note has appeared- One examination
is
889
a ready taken. Even Junior Engineers of 1973 batch have by
now put in more than 12 years of service. Therefore while
upholding the note and consequently rejection the appeal we
propose to give the following directions to remove the
irritants:
(i) Successful candidates of 1982 competitive
examination, results of which have been declared
pursuant to the directions of this Court, must be given
promotion as Assistant Engineer within a period of two
months from today.
(ii) The next qualifying examination permitting
all those who are eligible under the rules to appear at it
must be held latest by July 31, 1985 and the results be
declared by September 30, 1985.
(iii) The next competitive examination must be
held by December 31, 1985 and the results by declared
by February 28, 1986.
(iv) Consequent promotions keeping in view the
vacancies available must be given within a period of
three months after the result is declared.
This appeal is disposed of in these terms with no order
as to costs
M. L. A. Appeal dismissed.
890