Full Judgment Text
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PETITIONER:
P. MURUGESAN AND OTHERS
Vs.
RESPONDENT:
STATE OF TAMIL NADU AND OTHERS
DATE OF JUDGMENT03/02/1993
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
SHARMA, L.M. (CJ)
ANAND, A.S. (J)
CITATION:
1993 SCR (1) 405 1993 SCC (2) 340
JT 1993 (2) 115 1993 SCALE (1)423
ACT:
Civil Services-Madras Corporation Engineering Service Rules,
1969-Promotion to the posts of Assistant Executive Engineer-
Ratio 3:1 between graduate engineers (Assistant Engineers)
and diploma-holder engineers (Junior Engineers) Whether
violative of Articles 14, 16 of the Constitution.
Madras City Municipal Corporation Act, 1919-Section 87-
Vacancies arose prior to Madras Corporation Engineering
Service (Amendment) Rules, 1990-Whether to be filled
according to unmended Madras Corporation Engineering
Services Rules, 1969-Supreme Court’s direction.
HEADNOTE:
Under the Madras Corporation Engineering Service Rules,
1969, the recruitment to the posts of, Assistant Engineers
was by (1) direct recruitment, (b) by promotion from the
category of Supervisors and (c) by appointment on
deputation.
The graduate Supervisors were required to put in a minimum
of five years service in the category of Supervisors for
becoming eligible for promotion, whereas the diploma-holder-
Supervisors were required to put in a minimum service of ten
years as Supervisors.
In the category of Supervisors, in the matter of pay scales
too, distinction was maintained between graduates and
diploma-holders; while the pay-scale of the category of
Supervisors was Rs. 325-650, the graduates were started at
the initial pay of Rs. 400. From 1972 onwards, the pay
scales prescribed for the graduates and the diploma-holders
were different.
In 1978, the diploma-holder-Supervisors were designated as
junior Engineers, while the degree-holder-Supervisors were
designated as Assistant Engineers. The Posts of Assistant
Engineers were redesignated as Assistant Executive
Engineers.
406
In 1978 certain promotions were made to the category of
Assistant Executive Engineers by applying the ratio of 3:1
between the graduate-engineers (Assistant Engineers) and the
diploma-holder-engineers (junior Engineers).
The respondents-Junior Engineers challenged the promotions
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in writ petitions in the High Court, which was dismissed by
a Single Judge.
On appeal, a Division Bench of the High Court quashed the
promotions holding that as the Madras Corporation
Engineering Service Rules, 1969 did not provide for any
ratio, the Corporation could not prescribe the ratio of 3:1
by a mere resolution or by an executive order.
The Special Leave Petition preferred against the judgment of
the Division Beach of the High Court was dismissed by this
Court on 25.1.1990.
The State Government thereafter amended the 1969 Rules in
1990 providing for the ratio of 3:1 between the degree-
holders and the diploma holders in the matter of promotion
to the posts of the Assistant Executive Engineers. The 1990
Amendment Rules also provided that a junior Engineer
(diploma-holder) who acquired an engineering degree or its
equivalent during his service would be eligible for
appointment as Assistant Executive Engineer, if he puts in
three years of service in the Corporation Engineering
Subordinate Service after obtaining the degree.
The diploma-holders questioned the validity of the 1990
Amendment Rules, in writ petitions before the High Court.
The Single Judge dismissed the writ petitions and upheld the
validity of the 3:1 ratio. On appeal, the Division Bench
quashed the amendment introducing the ratio of 3:1, against
which the present appeal was riled by he graduate Engineers.
The appellants contended that the Assistant Engineers and
the junior Engineers constituted different categories though
performing similar functions and discharging similar
responsibilities; that their payslips were different; that
the Statutory Rules of 1969 made a distinction, between the
two categories inasmuch as while only five years’ qualifying
service was prescribed for the Assistant Engineers
(graduates), ten years
407
was prescribed for the Junior Engineers (diploma-holders);
that in such a situation imposing of an additional
restriction upon the promotional chances of Junior Engineers
by the 1990 Amendment Rules was neither incompetent nor
discriminatory, that Section 87 of the Madras City Municipal
Corporation Act was not mandatory but only directory.
The respondents-diploma-holders submitted that in the
category of Supervisors graduates were appointed by direct
recruitment and diploma-holders by promotion from the
category of Overseers; that the Assistant Engineers as well
as Junior Engineers performed identical functions and
discharged identical responsibilities; that they were inter-
transferable; that in such a situation prescription of a
quota between them for promotion to the higher category was
discriminative and was violative of Articles 14 and 16 of
the Constitution; that once the diploma-holders were
required to put in ten years’ service as against five years’
service in the case of the graduates, in the category of
Supervisors for becoming eligible for promotion as Assistant
Executive Engineers, the eligible graduates and the eligible
diploma-holders became equals in all respects and there
should not be any distinction thereafter for the purpose of
promotion; that at any rates In view of the provisions in
Section 87 of the Madras City Municipal Corporation Act, the
vacancies which arose prior to the coming into force of the
1990 Amendment Rules should be filled up in accordance with
the unamended Rules, i.e. without reference to the quota.
Allowing the appeal, this Court,
HELD : 1.01. It is held by the constitution Bench in Triloki
Nath Khosa that a distinction made on the basis of academic
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qualification for the purpose of promotion to higher
category is not violative of Articles 14 and 16. In the
said case, a rule barring the non-graduate-engineers from
promotion to the category of executive engineers was upheld.
If the diploma-holders can be barred altogether from
promotion as held in Triloki Nath Khosa, it is difficult to
appreciate how and why is the rule making authority
precluded from restricting the promotion. The rule making
authority may be of the opinion, having regard to the
efficiency of the administration and other relevant
circumstances that while it is not necessary to bar the
diploma-holders from promotion altogether, their chances of
promotion should be restricted. [416E, 417D]
1.02. There would be no justification in principle for
holding that the
408
rule-making authority has only two options namely either to
bar the diploma-holders altogether from promotion or to
allow them equal opportunity with the graduate engineers in
the matter of promotion. It must be remembered that the
power of rule-making under the proviso to Article 309 has
been held to be legislative in character. [419C]
1.03. If so, the test is whether such a restrictive view is
permissible vis-a-vis a legislature. If not, it is equally
impermissible in the case of the rule-making authority under
the proviso to Article 309. The only test that such a rule
has to pass is that of Articles 14 and 16. [419D]
1.04. Since 1969 the graduate supervisors and non-
graduate Supervisors were treated differently in the matter
of pay, designation and in the matter of promotion, though
they were discharging identical functions and duties. It is
thus clear that though they belonged to one class they
represented two different categories, while it is true, they
performed similar duties and discharged similar
responsibilities. [419G]
1.05. It cannot be said that it is not permissible to
the rule-making authority, if it thinks it necessary in the
interests of administration to limit the promotional chances
of non-graduates to one out of four vacancies, on the basis
of academic qualifications. [420B]
1.06. The distinction was also in the matter of
promotion and not for any other purpose. If that
distinction is not discrimination, it is difficult to see
how and why another distinction now created (quota rule) is
discriminatory. [422D]
B.S. Vadera v. Union of India, AIR 1969 SC 118; State of
Jammu & Kashmir v. Triloki Nath Khosa, [1974] 1 SCR 771;
State of Mysore & Anr. v. P. Narasing Rao, [1968] 1 SCR 407;
Union of India v. Dr. (Mrs.) S.B. Kohli, AIR 1973 SC 81 1;
Roop Chand Adlakha and Ors. v. D.D-4. and Ors., [1988] 3
Supp. SCR 253 and Shamkant Narayan Deshpande v. Maharashtra
Industrial Development Corporation & Anr., 1992 (2) Scale
857, referred to.
Mohammad Shujat Ali & Ors. etc. v. Union of India and Ors.
etc.,, [1975] 1 SCR 449, explained.
Roshan Lal Tandon v. Union of India, [1968] 1 SCR 185; Menyn
v. Collector of Bombay, AIR 1967 SC 52 = [1966] 3 SCR 600;
H.C. Sharma
409
and Others v. Municipal Corporation of Delhi and
Others,[1983] 3 SCR 372; Punjab State Electricity Board and
Anr. v. Ravinder Kumar Sharma and Ors., [1987] 1 SCR 72 and
N. Abdul Basheer & Ors. etc. etc. v. KK Karunakaran & Ors.,
[1989] 3 SCR 201, distinguished.
2.01. Section 87 of the Madras City Municipal
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Corporation Act does indicate and manifest the concern of
the Legislature that the vacancies occurring in the
Corporation Service should not be kept unfilled for a period
of more than three months. Sub-section (3) which provides
for the consequence of default on the part of the council to
abide by sub-section (1) emphasises the concern of the
Legislature. So also does sub-section (2). Sub-section (4)
says that if there is going to be any delay or if a suitable
or qualified person is not available, the council may
appoint a person on temporary basis. [424H, 425A]
2.02. The vacancies occurring prior to three months
before the date of commencement of the impugned amendment
ought to have been filled in accordance with the rules then
obtaining. [425B]
2.03. Having regard to the particular facts and
circumstances of the present case, it is directed that the
Corporation shall ascertain the vacancies in the category of
Assistant Executive Engineers, that have arisen three months
prior to the coming into force of the impugned amendment
(introducing the quota of 3:1 as between degree-holders and
diploma-holders ) and shall work out the vacancies which
would have gone to the diploma-holders if unamended Rules
had been followed. The Corporation shall also ascertain
which of the diploma-holders would have been promoted in
those vacancies. Such diploma-holders will be promoted in
the existing and future vacancies. Until these diploma-
holders are so promoted to the category of Assistant
Executive Engineers, no degree-holders shall be promoted.
After these diploma-holders are so promoted, it is obvious,
the amended Rules shall be applied and followed. As and
when a diploma-holder is promoted in pursuance of this
direction, his promotion shall be given effect to from the
date he ought to have been promoted. Such diploma-holder
promoters shall be entitled to the benefit of seniority and
pay-fixation flowing from such retrospective promotions, but
they shall not be entitled to the.arrears of ’difference in
salary for the period they have not actually worked as
Assistant Executive Engineers. [425E-H]
Ramgiah v. Srinivasa Rao, [1983] 3 SCC 284; P. Ganeshwar Rao
v.
410
State of Andhra Pradesh, [1988] Supp SCC 740; P. Mahendran
and Others v. State of Karnataka and Ors., [1990] 1 SCC 411
and Devin Katti & Ors. v. Kamataka Public Service
Commission and Others, [1990] 3 SCC 157, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 406 of 1993.
From the Judgment and Order dated 29.7.1992 of the Madras
High Court in Writ Appeal No. 518 of 1991.
M.K. Ramamurthi, Ms. Chandan Ramamurthi, M.A. Chainasamy and
Krishnamoorthy for the Appellants.
R. Thyagarajan, S. Navaneethan, V. Balachandran, S.
Srinivasan, P.R. Seetharaman, R. Mohan, A.T.M. Sampath and
N. Kannadasan for the Respondents.
The Judgment of the Court was delivered by
B.P. JEEVAN REDDY, J. Heard the Counsel for the parties.
Leave granted.
The dispute is between the degree holders and the diploma
holders in the engineering service under the Madras
Municipal Corporation.
The Corporation of Madras is governed by the Madras City
Municipal Corporation Act, 1919. It employs a good number
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of engineers in connection with the discharge of its duties.
Till 1965, there was only one category of supervisors.
Recruitment to this category was by direct recruitment of
graduate engineers as well as by promotion from the lower
category of overseers. Diploma holders were not eligible
for direct appointment as supervisors; they were first
appointed to the category of overseers and then promoted as
supervisors. The category above the supervisors was that of
assistant engineers. Supervisors, whether directly
recruited (graduates) or promotees (diploma-holders) were
required to put in 20 years’ service in the category of
supervisors lo become eligible for promotion to the category
of assistant engineers. No distinction was made as between
the degree holders (graduates) and diploma-holders in the
matter of promotion or in the matter of eligibility
criteria.
411
In the year 1965, say the appellants (who are all graduate
engineers), the Corporation resolved (on 7.8.65) to follow
the rule in vogue in State Government service and apply the
ratio of 3:1 between graduates and diploma-holders in the
matter of promotion to the category of assistant engineers.
The respondents who are all diploma-holders, deny that any
such resolution was passed. According to them it was only a
recommendation of the Ad-hoc Committee constituted by the
Corporation and that the said recommendation was never
accepted as such by the Corporation. The respondents rely
upon the Division Bench judgment dated 21.12.89 in writ
appeal No. 990 of 1984 etc. holding that no such ratio was
actually enforced in the Corporation Engineering Service.
Be that as it may, some time prior to 1969, the Act was
amended empowering the Government to frame rules regulating
the recruitment and conditions of service of the employees
of the Corporation. In exercise of the said power, the
Government of Tamil Nadu framed rules called Madras
Corporation Engineering Service Rules (contained in G.O.M.S.
No. 31 RD-LA dated 7.1.69). These rules applied only to
class 1A, 1B and class IT of engineering services under the
Corporation and not to other posts. The post of assistant
engineer was in category III in class-II. Recruitment to
this category was by (a) direct recruitment (b) promotion
from the category of supervisors and (c) by appointment on
deputation from the Government department. So far as
promotion is concerned, a distinction was made as between
degree-holders and diploma-holders. The graduate
supervisors were required to put in a minimum of five years
service in the category of supervisors for becoming eligible
for promotion, whereas the diploma-holder-supervisors were
required to put in a minimum service of ten years as
supervisors to become eligible for such promotion. At about
this time, a practice developed where under graduate-
supervisors were referred to as Junior engineers. The
diploma-holders-supervisors (who are necessarily promotees
in the category of supervisors) continued to be referred to
as supervisors.
In the year 1978 the Government of.Tamil Nadu altered the
designations of the categories relevant before us by
G.O.M.S. No. 954 dated 2.6.1978.Para-2 of the G.O. stated
that the diploma-holder-supervisors shall be designated as’
junior engineers while the degree-holders-supervisors (who
had come to be known as junior engineers meanwhile) would be
designated as assistant engineers. Consequently the
erstwhile post of assistant engineer was redesignated as
assistant executive engineer. By G.O.M.S. No. 907 dated
20.5.1981, this change in designation was given
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412
effect to and incorporated in the Statutory Rules issued in
1969 (Madras Corporation Engineering Service Rules).
The recruitment and conditions of service of assistant
engineers and juniors (formerly known together as
Supervisors) were governed by the by-laws made by the
Corporation. In the matter of pay scales too, a distinction
was being maintained between graduates and diploma-holders
even when they were in the same category of Supervisors.
The pay scale admissible to the category of supervisors was
325-650 but the graduates were given a higher start-their
initial pay was fixed at 400. No such treatment was given
to the diploma-holders. According to the appellants there
was yet another distinction from 1972 onwards; the pay-
scales prescribed for the graduate engineers and diploma-
holder-engineers were different as per the particulars
mentioned in para 33 of the S.L.P. They point out that in
the counter filed to the Special Leave Petition, the
respondents have not denied the said averment; they merely
stated in para 20 of their counter that the "allegations in
paragraphs 33 to 36 are of no avail to the petitioner."
Whether in pursuance of the Resolution of 1965 or otherwise,
certain promotions were made to the category of assistant
executive engineers, in the year 1978, applying the ratio of
3:1 as between graduate-engineers and diploma-holder-
engineers. We may refer to these two categories hereinafter
as assistant engineers and junior engineers, since that was
the designation given to them by G.O.M.S. No. 954 dated
2.6.1978. The said promotions were questioned by diploma-
holders in a batch of writ petitions 2810 of 1978 etc.) in
the Madras High Court. It was dismissed by a learned Single
Judge. On appeal, however, a Division Bench of that court
held judgment dated 21.12.1989 in Writ Appeal No. 990 of
1984 etc.) that inasmuch as the Statutory Rules framed in
1969 did not provide for any such ratio, it is not open to
the Corporation to prescribe such a ratio by a mere
resolution or by an executive order. Accordingly, the
Division Bench quashed the said promotions. A Special leave
petition preferred against he said judgment in this Court
was dismissed on 25.1.1990. It is then that he Government of
Tamil Nadu stepped in and amended the 1969 Rules providing
for the said ratio of 3:1 by way of G.O.M.S. No. 138
(Municipal Administration and Water Supply) dated 9th
February, 1990. So far as relevant herein, the said G.O.
prescribed the "ratio of 3:1 between the degree holders and
diploma holders" in the matter of promotion to the
413
assistant executive engineers. It was further provided that
a junior engineer (diploma-holder) who acquired an
engineering degree or its equivalent during his service as
junior engineer will be eligible for appointment as
assistant executive engineer if he puts in three years of
service in the Corporation Engineering Subordinate Service
after obtaining the engineering degree or its equivalent.
The result of this amendment was that a two-fold distinction
came to be made between graduates and diplomaholders in the
matter of promotion to the post of assistant executive
engineers. In addition to the hitherto existing distinction
in the matter of length of qualifying period of service (10
years for diploma-holders/junior engineers as against 5
years for degree-holders/assistant engineers), the new
restriction imposed by the said amendment was that the
diploma holders/junior engineers were restricted to only one
out of four posts of assistant executive engineers; the
remaining three were reserved for graduates/assistant
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engineers. (Of course, according to the appellant such a
ratio was in vogue as a matter of fact since 1965. the
respondents deny this assertion. Be that as it may, the
ratio or quota, as it may be called was statutorily
imposed by the said amendment.
The validity of the 1990 amendments, in particular the
introduction of ratio of 5:1, was questioned by diploma-
holders in the Madras High Court in a batch of Writ
Petitions being Writ Petition 2943 of 1990 etc. A learned
Single Judge dismissed the batch by his Judgment and Order
dated 21.3.1991, upholding the validity of the said ratio.
On appeal, a Division Bench took a contrary view and quashed
the amendment introducing the ratio of 3:1. In this appeal
the correctness of the view taken by the Division Bench is
called in question.
Mr. M.K. Ramamurthy, learned counsel for the appellants’
submitted that classification on the basis of academic
qualifications is a well accepted basis. for the purpose of
promotion and that the Division Bench of the Madras High
Court was in error in holding otherwise. He submitted that
assistant engineers and junior engineers constituted
different categories though performing similar functions and
discharging similar responsibilities. Their pay-scales were
different-at any rate from 1972. Even earlier, the pay
fixation formula was different in the case of graduates.
Even the Statutory Rules of 1969 made a distinction between
the two categories inasmuch as while only five years’
qualifying service was prescribed for graduates, ten years’
qualifying service was prescribed for diploma-holders.
414
In such a situation imposing an additional restriction upon
the promotional chances of diploma holders by the impugned
amendment is neither incompetent nor can it be characterised
as discriminatory. He submitted that right from 1972
onward, a clear distinction was being observed between the
graduates and diploma-holders and that the impugned
amendment is but another step in the same process.
On the other hand the learned counsel for the respondents
holders submitted that whether graduates or diploma-holders,
they were all in the category of supervisors till the year
1981. There was only one category of supervisors to which
graduates were appointed by direct recruitment and diploma-
holders by promotion from the lower category of overseers.
They performed identical functions and discharged identical
responsibilities. They were inter-transferable. On some
occasions, graduates (assistant engineers) were posted to
assist a diploma holder (junior engineer) in discharging
certain duties. Even after 1978 when the graduates-
supervisors were designated as assistant engineers and
diplomaholders-supervisors were designated as junior
engineers, the same situation continued. In such a
situation prescription of a quota as between them for
promotion to the higher category is discriminatory and is
violative of Articles 14 and 16 of the Constitution.
Learned counsel submitted that in any event once the
diploma-holders were required to put in ten years’ service
(as against five years’ service in the case of graduates) in
the category of supervisors for becoming eligible for
promotion as assistant executive engineers, the eligible
graduates and the eligible diploma-holders became equals in
all respects. No distinction is permissible thereafter in
the matter of and for the purpose of promotion. Creating
such a distinction, imposing a disability upon the diploma-
holders, is not only unjust and inequitable, it is also a
clear case of hostile discrimination. Lastly and
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alternatively counsel submitted that the vacancies which
arose prior to the coming into the force of the impugned
amendment, at any rate, should be filled up in accordance
with the unamended Rules. It is pointed out that the
impugned amendment is only prospective in operation.
Section 87 of the Act is relied upon in this behalf.
It is true that theory of classification should not be
carried too far lest it may subvert, perhaps submerge, the
precious guarantee of equality, as pointed out by
Chandrachud, J. in State of Jammu & Kashmir v. Triloki Nath
Khosa, [1974] 1 SCR 771. Minute and microcosmic
classification
415
should not be permitted nor should the Court countenance
"mini classifications based on micro distinctions", as
pointed out by Krishna Iyer, J. in the same case. Looked at
from this broad angle, it may appear there is some force in
what the respondents contend viz., that once the graduate-
engineers and diploma-holder-engineers constitute one class,
perform same duties and discharge same responsibilities,
placing a restriction on the diploma holders alone (limiting
their chances of promotion to one out of four promotions, as
has been done by the impugned Amendment) is not justified
but this may be a too simplistic way of looking at the
issue. We cannot fail to take note of the fact that right
from 1974 i.e., since the decision of the Constitutions
Bench in Triloki Nath Khosa this Court has been holding
uniformly that even where direct recruits and promotees are
integrated into a common class, they could for purposes of
promotion to the higher cadre be classified on the basis of
educational qualifications.
In the Kashmir Engineering Service, the post of assistant
engineer could be filled both by direct recruitment as well
as by promotion. There were degree-holders and also
diploma-holders in the category. By the Kashmir Civil
Services (Revised Pay) Rules, 1968 it was provided that a
diploma-holder-assistant engineer shall not cross the stage
of Rs. 610 in the scale of Rs. 300-30-540-EB-35-610-EB-35-
750, which was the scale applicable to assistant engineers.
In 1970, Jammu and Kashmir Engineering (Gazetted) Service
Recruitment Rules, 1970 were issued providing that the post
of executive engineer (the next higher post) shall be filled
only by promotion from among the assistant engineers, who
possessed a bachelor’s degree in engineering or its
equivalent qualification provided they have put in seven
years’ service in the assistant engineer’s category.
Assistant engineers who were not degree-holders were thus
barred from promotion to the category of executive
engineers. Both the Rules, namely 1968 Pay Rules and 1970
Recruitment Rules were questioned by diploma-holders in the
J & K High Court. Though a learned Single Judge dismissed
the writ petition, his judgment was reversed in appeal by
the Division Bench. The Division Bench was of the opinion
that where the employees were grouped together and
integrated into one unit without reference to their
qualifications, they form a single class in spite of initial
disparity in the matter of their educational qualifications
and that no discrimination is permissible to be made between
them on the basis of such qualifications. On appeal this
Court reversed the Judgment of the Division Bench. Two
judgments were delivered, one by Chandrachud J. on behalf of
himself A.N. Ray, C.J. and
416
D.G. Palekar, and the other by Krishna Iyer, J. for himself
and Bhagwati J. Chandrachud J. while affirming the principle
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that a classification must be truely founded on substantial
differences which distinguished persons grouped together
from those left out of the group and that such differential
attributes must bear a just and rational relation to the
object sought to be achieved, stated the scope of the
Judicial scrutiny in such matters in the following words :
"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 rule-making authority on
the need to classify or the desirability of
achieving a particular object."
The learned Judge held that judged from the above stand-
point it was impossible to accept the proposition that the
classification of Assistant Engineers into Degree-Holders
and Diploma-Holders rests on any unreal or unreasonable
basis. They accepted the plea that the said classification
was brought about with a view to achieving administrative
efficiency in the Engineering services. The higher academic
qualifications, the learned Judge held, is atleast
presumptive evidence of a higher mental equipment. The
learned Judge said "what is relevant is that the object to
be achieved here is not a mere presence for an
indiscriminate imposition of inequalities and the
classification cannot be characterized as arbitrary or
absurd. That is the farthest that judicial scrutiny can
extend." The learned Judge referred to the earlier decision
of this Court in State of Mysore & Anr. v. P. Narasing Rao,
[1968] 1 SCR 407 and the Union of India v. Dr. (Mrs.) S.B.
Kohli, AIR 1973 SC 811 to demonstrate that a distinction
made on the basis of academic qualifications was always
upheld by this Court. Indeed, in the latter case, the
relevant rule required that a professor of orthopaedics must
have a post-graduate degree in the particular speciality.
It was upheld as a relevant requirement, The learned Judge
then explained the decision in Roshan Lal Tandon v. Union of
India (upon which substantial reliance was placed by the
respondents in that case) as an authority certainly for the
proposition that "no discrimination could be made between
promotees and
417
direct recruits by reference to the source from which they
were drawn" but that it does not bar a classification based
upon academic qualifications. In the words of Chandarchud.
J. Roshanlal Tandon’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." Having thus
distinguished Roshanlal Tandon’s case and Mervyn v.
Collector of Bombay, AIR 1967 S.C. 52, the learned Judge
concluded :
"We are therefore of the opinion that though
persons appointed directly and by promotion
were intregrated into a common class for
Assistant Engineers, they could, for purposes
of promotion to the cadre of Executive En-
gineers, be classified on the basis of
educational qualifications. The rule
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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."
This decision clearly supports the appellants contention and
goes to sustain the validity of the impugned amendment. If
the diploma-holders can be barred altogether from promotion,
it is difficult to appreciate how and why is the rule making
authority precluded from restricting the promotion. The
Rule making authority may be of the opinion, having regard
to the efficiency of the administration and other relevant
circumstances that while it is not necessary to bar the
diploma-holders from promotion altogether, their chances of
promotion should be restricted. On principles, there is no
basis for the contention that only two options are open to a
rule making authority-either bar the diploma-holders
altogether or allow them unrestricted promotion on par with
the graduates. This aspect has been emphasised by
Venkatachaliah J. in Roop Chand Adlakha and Ors. v. D.D.A.
and Ors., [1988] 3 Supp. SCR 253 in the following words.
"If Diploma-Holders of course on the
justification of the job-requirements and in
the interest of maintaining a certain quality
of technical expertise in the cadre could
validily be excluded from the eligibility for
promotion to the higher cadre, it does not
necessarily follow as an inevitable
corollary that the choice of the recruitment
418
policy is limited only two choices, namely
either to consider them "eligible" or ’not
eligible.". State, consistent with the
requirements of the promotional-posts and in
the interest of the efficiency of the service,
is not precluded from conferring eligibility
on Diploma-Holders conditioning it by other
requirements which may, as here, include
certain quantum of service-experience. In the
present case, eligibility-determination was
made by a cumulative-criterion of a certain
educational qualification plus a particular
quantum of service experience. It cannot, in
our opinion, be said, as postulated by the
High Court, that the choice of the State was
either to recognise Diploma Holders as
"eligible" for promotion or wholly exclude
them as "not-eligible".
Counsel for the respondents however placed strong reliance
upon certain observations made by Bhagwati, J. in Mohammad
Shujat Ali & Ors. etc. v. Union of India and Ors. etc.,
[1975] 1 SCR 449. After referring to the facts of, and the
principles enunciated in, T.N. Khosa the learned Judge made
the following observations:
"But where graduates and non-graduates are
both regarded as fit and, therefore, eligible
for promotion, it is difficult to see how,
consistently with the claim for equal
opportunity, any differentiation can be made
between them by laying down a quota of
promotion for each and giving preferential
treatment to graduates over non-graduates in
the matter of fixation of such quota. The
result of fixation of quota of promotion for
each of the two categories of Supervisors,
would be that when a vacancy arises in the
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post of Assistant Engineer, which, according
to the quota is reserved for graduate
Supervisors, a non-graduate supervisor cannot
be promoted to that vacancy, even if he is
senior to all other graduate Supervisors and
more suitable than they. His opportunity for
promotion would be limited only to vacancies
available for non-graduate Supervisors. That
would clearly amount to denial of equal
opportunity to him."
419
On the basis of the above observations it is
argued that once the diploma-holders are also
held eligible for promotion, it is not
permissible for the rule-making authority to
make any distinction between graduates and
diploma-holders. We cannot agree. As a
matter of fact this court in Shujat Ali case
upheld the validity of the Andhra Pradesh rule
which made a distinction between the graduate
supervisors and non-graduate supervisors in
the matter of promotion to the higher
categories on the ground that in the erstwhile
States of Andhra and Hyderabad, graduate
supervisors were always treated as distinct
and separate from the non-graduate super-
visors, their pay scales were different; they
were never really integrated into one class
and graduate supervisors were called Junior
Engineers. Accordingly, it was held that
reducing the chances of promotion of non-
graduate supervisors vis-a-vis graduate
supervisors was not discriminatory. (As we
shall presently point out, the factual
situation in Madras Corporation Engineering
service is similar). The observations quoted
above cannot be read in isolation nor can they
be read as running counter to the ratio of TN.
Khosa. Both decisions were rendered by
Constitution Benches. In any event, the facts
and circumstances of the case before us are
akin to those in Shujat Ali. Secondly as
explained hereinbefore there would be no
justification in principle for holding that
the rule-making authority has only two options
namely either to bar the diploma-holders
altogether from promotion or to allow them
equal opportunity with the graduate engineers
in the matter of promotion. It must be
remembered that the power of rule-making under
the proviso to Article 309 has been held to be
legislative in character. Vader A.I.R. 1969
S.C. 118. If so, the test is whether such a
restrictive view is permissible vis-a-vis
legislature. If not, it is equally
imperviously in the case of the rule-making
authority under the proviso to Article 309.
The only test that such a rule has to pass is
that of Articles 14 and 16 and to that
aspect we may turn now.
The facts of this case, narrated hereinbefore,
clearly disclose that long prior to the
impugned amendment, a clear distinction was
being maintained between these two categories.
The 1969 Rules, as originally issued,
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prescribed a five years’ qualifying service
for graduate engineers while prescribing ten
years’ qualifying service for diploma holders,
though earlier it was twenty years for both
uniformly. No one ever questioned it. The
graduates were designated as Assistant
Engineers while Supervisors were designated as
junior engineers in the year 1978. This
distinctive designations were recognised by
and incorporated into the Statutory Rules
(1969 Rules) in the year 1981. No grievance
was made on that count. Even
420
when both of them were in the same pay scale, the graduates
were being given a higher start at Rs. 400 straightaway,
while no such benefit was given to a promote. Further, from
1972 onwards, it appears, their very payscales were
different. It is thus clear that though they belonged to
one class they represented two different categories, while
it is true, they performed similar duties and discharged
similar responsibilities. It is asserted by the
Respondent’s counsel that there is also a common seniority
list but this fact is denied by the appellant. According to
them, there were two separate seniority lists till 1979 and
that when in 1979 a single seniority list was prepared, it
was objected to by the graduates, Be that as it ’may, the
question still remains whether it is not permissible to the
rule-making authority, if it thinks it necessary in the
interests of administration to limit the promotional chances
of non-graduate to one out or four vacancies, on the basis
of academic qualifications. In the light of the
Constitution Bench decision in Triloki Nath Khosa, we cannot
say that it is not permissible.
In Shamkant Narayan Deshpande v. Maharashtra
Industrial Development Corporation & Ors.,
1992 (2) Scale 857 a Bench consisting of P.B.
Sawant and G.N. Ray, JJ. took the same view as
we do in this case. We also agree with the
basis upon which the learned Judges
distinguished the decision in H.C Sharma and
Ors. v. Municipal Corporation of Delhi and Others, [1983] 3
SCR 372.
The learned counsel for respondents relied
upon the decision in Punjab State Electricity
Board and Anr. v. Ravinder Kumar Sharma and Ors., [1987] 1
SCR 72, a decision rendered by a Bench comprising A.P. Sen
and B.C. Ray, JJ. the category of line-men in the service of
the Punjab State Electricity Board comprised both diploma-
holders and others who may be referred to as non-diploma-
holders. They constituted one single category having a
common seniority list. By means of the Rules issued under
the proviso to Article 309, a quota was prescribed for
diploma-holders, the result of which was that diploma-
holders who were far junior to the non-diploma-holders were
promoted ignoring the non-diploma-holders. The rule was
held to be bad by the learned Subordinate Judge, Patiala.
On appeal, the Additional District Judge, Patiala affirmed
the judgment. It was affirmed by the High Court as well.
The matter was brought to this Court. This court affirmed
the judgment of the High Court. A persual of the judgment
shows that the attention of the Bench was not drawn either
to TN. Khosa or to other decisions. Reference was made
only to the obser-
421
vations in Shujat All quoted hereinbefore and
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it was held that the distinction made between
the diploma-holders and non-diploma-holders
was discriminatory and bad. Apart from the
distinction on facts between that case and the
case before us, it is evident that non-
consideration of the T.N. Khosa and other
decisions relevant under the subject has led
to the laying down of a proposition which
seems to run counter to T.N. Khosa. With
great respect to the learned Judges who
decided that case, we are unable to accept the
broad proposition flowing from the case.
The counsel for the respondents then relied
upon N. Abdul Basheer & Ors. etc. etc. v. KK Karunakaran &
Ors., [1989] 3 SCR 201 a decision of a Bench of three
learned Judges. On an examination of the facts of that
case, it was held by Pathak, C.J. speaking for the Bench,
that the history of the evolution of the Kerala Excise and
Prohibition Subordinate Service does not show that the
graduates and non-graduates were treated as two separate
categories. The following observations bring out the
factual position found in that case.
"The history has varied with the circumstances
prevailing before and after the reorganisation
of the State on 1 November, 1956. Originally
when more emphasis was laid on the induction
of graduates, the ratio of graduate to non-
graduate officers was maintained at 3:1 but
from 9 September, 1974 the ratio was changed
inversely to 1:3. More non-graduates were now
inducted into the Service. The trend shows,
if anything, that it ran in favour of
absorbing more non-graduates. The conditions
pertaining to the service, and respecting
which the constitution of the service varied
from time to time, showed fluctuations. A
consistent or coherent policy in favour of
graduates was absent. This is not a case
where the cadre of officers was kept in two
separate divisions. It was a single cadre,
and they were all equal members of it. There
is no evidence that graduate Preventive
Officers enjoyed higher pay than non-graduate
Preventive Officers. The High Court has noted
that the nature of the duties of Preventive
Officers whether graduate or non-graduate was
identical, and both were put to field work.
Non-graduate Preventive Officers were regarded
as competent as graduate Preventive Of-
422
ficers. There is no evidence of any special
responsibility being vested in graduate
Preventive Officers. Once they were promoted
as Excise Inspectors there was no distinction
between graduate and non-graduate Excise
Inspectors.’
It is thus clear that the facts of that case were entirely
different and it is those facts which influenced the
decision holding that no distinction can be made between
graduates and non-graduates inspectors in the matter of
promotion. The said decision, however, cannot be read as
containing any proposition contrary to T.N. Khosa. We are,
therefore, of the opinion that the principle of the said
decision cannot help the respondents. So far as the factual
situation is concerned, the facts of the case before us do
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show, as discussed hereinbefore, that since 1969 the
graduate supervisors and non-graduate supervisors were
treated differently in the matter of pay, designation and in
the matter of promotion though they were discharging
identical functions and duties.
It may also be noticed in this connection that in the
government service, the ratio of 3:1 as between graduates
and diploma-holders has been in vogue since prior to 1965
and the corporation has been trying to implement the said
ratio in its service too.
Another argument urged by the learned counsel for the
Respondents is that by prescribing a longer qualifying
period of service for diplomaholders, they have been equated
with the graduates and that thereafter no further
distinction is permissible. We cannot agree. The
distinction aforesaid was also in the matter of promotion
and not for any other purpose. If that distinction is not
discrimination, it is difficult to see how and why another
distinction now created (quota rule) is discriminatory.
Suppose, if these two requirements (i.e., longer qualifying
service and quota rule) had been introduced at the same
time, there could have been no room for the present
argument. The rule would have been good. How does it
become bad, if they are introduced at different times?
Both relate to their eligibility and chances of promotion.
To wit, the basic question is if they can be barred
altogether from promotion, a& held in T N. Khosa, why can’t
their chances of promotion be restricted, curtailed or
hedged in.
Sri Thyagarajan, learned counsel for
respondents 3 to 8 (diploma-holders) raised an
alternative contention based upon Section 87
of the
423
Madras City Municipal Corporation Act.
Section 87 reads as follows
"87. TIME WITHIN WHICH VACANCY IN CERTAIN
POSTS MUST BE FILLED UP:
(1) If a vacancy occurs in any office
included in Class I-B or Class II, or any new
office in Class I-B or Class II is created,
the council shall within three months appoint
any qualified and suitable person to hold such
office.
(2) If the State Government refuse to
confirm the appointment so made, the council
shall appoint some other qualified and
suitable person within forty-five days from
the receipt of the order refusing
confirmation.
(3) In default of any appointment being made
in accordance with sub-section (1) or sub-
section(2), as the case may be, the State
Government may appoint a person who in their
opinion, is qualified and suitable to hold the
office and such person shall be deemed to have
been appointed by the council.
(4) Pending an appointment under sub-section
(1) or sub-section (2), the council may
appoint a person to hold the office
temporally and assign to him such salary as it
may think fit :
Provided always that the salary so assigned
shall not exceed the maximum fixed by the
State Government by rules in respect of the
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office."
The contention of the learned counsel is this: sub-section
(1) of Section 87 obligates the council to fill up a vacancy
within three months of occurrence of a vacancy by a
qualified and suitable person. Sub-section (3) provides the
consequence of the default of the council in making an
appointment within the time prescribed by sub-section (1).
In such eventuality the State Government becomes entitled to
appoint a person, who in their opinion is qualified and
suitable for such office and the person so appointed shall
be deemed to have been appointed by the council. Sub-
424
section (4) empowers the council to make a temporary
appointment pending an appointment under section (1) or sub-
section (2). Sub-section (2) says that if the State
Government refuses to confirm the appointment made by the
council under sub-section (1), the council shall have to
appoint some other qualified and suitable person within
forty-five days from the date of receipt of the order of the
Government refusing confirmation. The counsel contends that
in view of the said provision, the vacancies which arose
three months prior to the date of the commencement of the
impugned amendment should be filled according to the
unamended rules i.e., without reference to the quota. He
relies upon the decisions of this Court in Rangiah v.
Srinivasa Rao, 119831 3 SCC 284; P. Ganeshwar Rao v. State
of Andhra Pradesh, [1988] Supp. SCC 740; P. Mahendran and
Others v. State of Karnataka and Ors., [1990] 1 SCC 411 and
Devin Katti & Others v. Karnataka Public Service Commission
and Others, [1990] 3 SCC 157.
On the other hand the learned counsel for the appellant
submits firstly, that this argument was not raised before
the High Court and should not be allowed to be raised at
this stage for the first time, secondly, he says Section 87
is not mandatory but only directory. The learned counsel
also argues that in pursuance of the judgment of the learned
Single Judge dated 21.3.1991 (upholding the validity of the
impugned amendment and giving certain directions in the
matter of making promotions to the post of assistant
executive engineer) and also because stay was refused by the
Division Bench of High Court in the Writ Appeals preferred
against the said judgment, the Corporation promoted thirty
degree-holders including six appellants on 5.6.1991. In
fact, it is stated, by an order dated 30.4.1991, the
Division Bench allowed the Corporation to make promotions
pending the Writ Appeals, of course, subject to the result
of the writ appeals. It is submitted further that by
another Order passed in May, 1992, the Corporation promoted
another twelve degree-holders and three diploma-holders. It
is also brought to our notice that in the Special leave
petition preferred against the judgment of the Division
Bench, this Court stayed the reversion of the
appellants/petitioners by its order dated 14.9.1992 which
order was continued by another order dated 21.9.1992. It is
submitted that in the above circumstances a direction of the
nature sought for by respondents 3 to 8 will mean the
reversion of the appellants who have been promoted in
pursuance of the order of the learned Single Judge. It is
pointed out if this
425
Court is upholding the impugned amendment, it would not be
just to permit the reversion of degree-holders on the ground
urged by the respondents for the first time in this appeal.
In our opinion Section 87 does indicate and manifest the
concern of the Legislature that the vacancies occurring in
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the Corporation Service should not be kept unfilled for a
period of more than three months. Sub-section (3) which
provides for the consequence of default on the part of the
council to abide by sub-section (1) emphasises the concern
of the Legislature. So also does sub-section (2). Sub-
section (4) says that if there is going to be any delay or
if a suitable or qualified person is not available, the
council may appoint a person on temporary basis. The said
provision is, therefore, analogous to, and indeed more
specific than rule 4 of the Andhra Pradesh Registration and
Subordinate Service Rules considered in Rangiah v. Srinivasa
Rao. Accordingly it must be held that the learned counsel
for respondents 3 to 8 is right in his submission that the
vacancies occurring prior to three months before the date of
commencement of the impugned amendment ought to have been
filled in accordance with the rules then obtaining. At the
same time we cannot fail to recognise the force in the
argument of the learned counsel for the appellants that the
respondents not having raised the said contention in the
High Court i.e., before the learned Single Judge or the
Division Bench should not be allowed to raise the same in
this Court for the first time. On a balancing of the
contending equities, we are of the opinion that the
following direction would be the appropriate one in the
particular facts and circumstances of this case. The
direction is this :
The Corporation shall ascertain the vacancies in the
category of Assistant executive engineers, that have arisen
three months prior to the coming into force of the impugned
amendment (introducing the quota of 3:1 as between degree-
holders and diploma-holders) and shall work out the
vacancies which would have gone to the diploma-holders if
unamended Rules had been followed. The Corporation shall
also ascertain which of the diploma-holders would have been
promoted in those vacancies. Such diploma-holders will be
promoted in the vacancies that may be existing as on today
and those that may arise in future. Until these diploma-
holders are so promoted to the category of Assistant
Executive Engineers, no degree-holders shall be promoted.
After these diploma-holders are so
426
promoted and thereafter, it is obvious the amended Rules
shall be applied and followed. It is further directed that
as and when a diploma-holder is promoted in pursuance of
this direction, his promotion shall be given effect to from
the date he ought to have been promoted. Such diploma-
holders promotees shall be entitled to the benefit of
seniority and pay-fixation flowing from such retrospective
promotions, but they shall not be entitled to the arrears of
difference in salary for the period they have not actually
worked as Assistant Executive Engineers.
For the reasons recorded hereinabove the appeal is allowed
subject to the direction made in the preceding paragraph.
The Order of the Division Bench of the Madras High Court in
Writ Appeal No. 518 of 1991 is set aside. There shall be no
orders to costs.
V.P.R.
Appeal allowed.
427