Full Judgment Text
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PETITIONER:
STATE OF U.P. AND ANOTHER
Vs.
RESPONDENT:
V. RAM GOPAL SHUKLA
DATE OF JUDGMENT10/04/1981
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
KOSHAL, A.D.
CITATION:
1981 AIR 1041 1981 SCR (3) 460
1981 SCC (3) 1 1981 SCALE (1)687
CITATOR INFO :
R 1981 SC1575 (1,2)
ACT:
Uttar Pradesh Promotion by Selection in Consultation
with Public Service Commission (Procedure) Rules, 1970,
Rules 7A and 7B-Whether the rules are discriminatory and
violative of Articles 14 and 16 of the Constitution.
New plea-New plea cannot he allowed at the time of
hearing of the appeal in the Supreme Court.
HEADNOTE:
The selection for the posts of Tehsildars in the State
of U.P. was to be made by promotion from amongst various
sources such as Naib Tehsildars, Peshkars of the Kumaon
Division, Kanungos, Kanungo Inspectors or Instructors and
Sadar Kanungos as per the procedure laid down in rules known
as Uttar Pradesh Adheenasth Rajaswa Karyakari (Tehsildar)
Sewa Niyamavali, 1966. The procedure for selection is
regulated by Rule 9 and under sub-section (6) of this Rule a
select list will be drawn in order of merit separately for
substantive vacancies and temporary vacancies and officials
will be offered officiating or temporary vacancies in the
order in which their names have been arranged in the "select
list" as and when the vacancies occur during the course of
the year. This "select list" will hold good only for one
year or until such time a review is made at the following
selections.
Subsequently, the State Government made the Uttar
Pradesh Promotion by Selection in Consultation with Public
Service Commission (Procedure) Rules, 1970, which governed
various services, to be more specific 29 Uttar Pradesh
services including the services of Tehsildars. The purpose
of these rules was to standardise the procedure for
promotion and make it uniform in respect of such services.
The procedure laid down in the 1970 Rules for promotion as
Tehsildars was not substantially different from that laid
down in the Tehsildars Rules, 1966. By a Notification No.
4214/196.-Appointment, 3 dated 4th July, 1972 two new rules
were introduced, namely, Rules 7A and 7B, in the 1970 Rules.
As per these newly added rules candidates in the Select List
made under the 1966 Rules were to be appointed against
substantive vacancies in preference to any candidates
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selected in accordance with the provisions of the 1970 Rules
and unless the candidates in the list were exhausted, other
eligible candidates were not to be considered for promotion
so that their chances of promotion would be deferred to an
undated future.
461
The respondent who started his service as Kanungo in
1949, was promoted as Naib Tehsildar and in 1962 he was
confirmed as such. In 1963, he was appointed as Tehsildar in
an officiating capacity. In accordance with the ]966 Rules
the Uttar Pradesh, Public Service Commission selected 148
persons for substantive appointment as Tehsildars and their
names were shown in a list known as List-A. The Commission
also selected 300 other persons for temporary or officiating
appointment as Tehsildars during the coming years and their
names figured in what was called List-B. The respondent was,
however, not selected and his name could not be included in
either of the aforesaid two lists because he had an adverse
entry forming part of the remarks recorded on his work and
conduct and had also been shown down below at serial 557 in
the seniority list of Naib Tehsildars in the year 1966.
Though the adverse entry was expunged in the year 1969 and
his seniority was also re-fixed at serial number 216 on 6th
October, 1970, since there was no selection after 1966, his
name could not be included in either of the two lists even
thereafter.
The respondent challenged the vires of Rules 7A and 7B
by filing a petition under Article 226 of the Constitution
in the High Court of Allahabad. That petition was allowed in
part and Rules 7A and 7B were declared ultra vires Articles
14 and 1 6 of the Constitution, in the impugned judgment.
Hence the appeal by special leave by the State.
Dismissing the appeal, the Court,
^
HELD: 1:1. Rules 7A and 7B of the Uttar Pradesh
Promotion by Selection in Consultation with Public Service
Commission (Procedure) Rules, 1970, are ultra vires Articles
14 and 16 of the Constitution. [466 E, 473 A-B]
1:2. The grievance of the respondent, namely, that he
had a fundamental right of being considered for promotion
when others similarly situated were so and that if he was
not considered in a situation like that, he was
discriminated against and was denied equality of opportunity
is not only factually correct but well founded. [467 B-C]
2:1. It is true that the rules regulating the
conditions of service are within the executive power of the
State or its legislative power under the proviso to Articles
309 of the Constitution, but even so, such rules have to be
reasonable, fair and not grossly unjust if they are to
survive the test of Articles 14 and 16 of the Constitution.
A rule, which contemplates that unless the list of 300
persons is exhausted no other person can be selected
obviously, is unjust and it deprives other persons in the
same situation of the opportunity of being considered for
promotion. [470 F-H]
2:2. The classification in this case cannot be said to
be a reasonable classification based on the intelligible
differentia having a nexus to the object sought to be
achieved. The only basis of grouping the 300 persons in one
category is that they were included in the select list of
1966 and that they were officiating. The respondent, in the
instant case, could not be selected in the selection of 1966
on account of an adverse entry which was subsequently
expunged. His position in the seniority list was also
corrected but because no selection took place after 1966.
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The respondent could not be included in the list for no
fault of his. If there held
462
been a section and the list had been revised every year, as
is the requirement of the rules, the respondent, and like
him many others, would have been included in the list. For
example, some candidates who had not completed seven years
could not be eligible for promotion and could not be
included in the Select List of 1966 but after a lapse of
time they became eligible and they might have been selected
if selection had taken place. But, the door for promotion
had been foreclosed for the respondent and many others like
him by Rules 7A and 7B for no fault of theirs. The objection
taken by the Public Service Commission and the letter of the
Secretary or the Board of Revenue addressed to the
Government indicating that it would take about 24 years to
absorb 300 persons included in List-B and, therefore,
recommending that the list may not be enforced would point
out unmistakably that the selection was unnecessarily
postponed only to accommodate the 300 persons included in
the Select List of 1966. There is no rational basis for such
a departure from the ordinary operation of the 1970 Rules
which envisaged the preparation of a new list every year and
for singing out one particular list for according
preferential treatment to others in the similar situations
[469 B-F, 470 A-C]
State of Jammu and Kashmir v. Triloki Nath Khosa and
others [1974] 1 S.C.R. 771; Ramesh Prasad Singh v. State of
Bihar and others, [1978] 1 S.C.R. 787 and Ganga Ram and
others v. Union of India and others, [1973] 3 S.C.R. 481,
applied.
Reserve Bank of India v. C.S. Rajappan Nair and others,
I.L.R. 1977 Kerala 398, approved.
3. In a case where the vires of certain rules were
challenged as being violative of the Articles 14 and 16 of
the Constitution, only State is a necessary party. The other
persons likely to be affected by the declaration of the
rules as ultra vires are only proper parties. [471 E-F]
4. A party cannot be permitted to take up a new plea in
the appeal for the first time before this Court which was
not taken before the High Court in writ petition. [472 E-F]
General Manager, South Central Railway, Secundrabad an
Anr. v. A.V.R. Siddhanti and Ors., [1974] 3 S.C.R. 207,
followed.
B. Gopalaiah v. Government of Andhra Pradesh, A.I.R.
1969 A.P. 204 and J.S. Sachdev and Ors. v. Reserve Bank of
India and Anr., I.L.R. (1973) II Delhi 392, approved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 282 of
1980.
Appeal by special leave from the judgment and order
dated the 29th March, 1980 of the Allahabad High Court
(Lucknow Bench) know in Writ Petition No. 524 of 1979.
AND
CIVIL MISCELLANEOUS PETITION Nos. 4905 and 11949 of
1980.
463
G.N. Dixit, Mrs. Shobha Dikshit and H.R. Bhardwaj for
the Appellants.
S.N. Kackar, K.K Mohan, Rajiv Datta and A.S. Pandit for
the Respondent.
A.N. Pareek and S.K Jain for the Intervener.
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The Judgment of the Court was delivered by
MISRA, J. The present appeal by special leave is
directed against the judgment dated 29th March 1979 of the
Allahabad High Court allowing a petition under Article 226
of the Constitution.
In the State of Uttar Pradesh, there is a Service
commonly known as Naib Tehsildars. They have always formed
the backbone of the revenue administration in that State.
Sixty per cent of the posts of Naib Tehsildars are filled
through a competitive examination held by the State Public
Service Commission. The remaining posts are filled by
promotion. There is another Service in that State known as
the Service of Tehsildars. Cent percent of the posts of
Tehsildars are filled by promotion from amongst various
sources such as Naib Tehsildars, Peshkars of the Kumaon
Division, Kanungos, Kanungo Inspectors or Instructors and
Sadar Kanungos.
Ram Gopal Shukla, the respondent, started his service
as Kanungo in 1949. In due course, he was promoted as Naib
Tehsildar. In 1962, he was confirmed as such, and in 1963 he
was appointed as Tehsildar in an officiating capacity.
It appears that a regular selection for the posts of
Tehsildars was held in 1966 in accordance with the Uttar
Pradesh Adheenasth Rajaswa Karyakari (Tehsildar) Sewa
Niyamavali, 1966 (hereinafter referred to as ’the Tehsildar
Rules 1966’). Rule 5 of these Rules provides the sources of
recruitment to the post of Tehsildar. Rule 6 thereof lays
down conditions for eligibility and provides,-
"For the purposes of recruitment to the Service a
selection strictly on merit shall be made from amongst
all the permanent Naib Tehsildars, Tehsildars, Peshkars
of the Kumaon Division, Kanungo Inspectors or
Instructors and Sadar Kanungos, who have put in not
less than seven years’ service in the aggregate as such
or in an equivalent or higher
464
post in a substantive or officiating capacity on the
first day of January of the year in which the selection
is made."
Rule 7 enjoins upon the Parishad to report by list of March
every year to the Government the number of vacancies in the
Service expected during the following calendar year, and
then provides that the Governor shall fix the number of
appointments to be made. Rule 8 lays down the criterion for
selection. Rule 9 prescribes the procedure for selection. As
this rule is important for the purpose of the present case,
it is reproduced in so far as it is relevant,-
"9. The procedure for selection shall be as follows:
(1) The Parishad shall draw up, in order of merit, a
list of most suitable candidates from amongst those who
are eligible for promotion to the posts of Tehsildars.
The names in the list shall ordinarily be double the
number of substantive vacancies to be filled during the
course of the year.
(2) The Parishad shall also draw up, in order of
merit, a supplementary list containing names of
officials considered suitable for officiating or
temporary vacancies expected to occur during the course
of the year.
(3) The two lists drawn up under clauses (1) & (2)
above together with a gradation list prepared under
clause (b) of Rule 10, indicating therein the reasons
for passing over the seniors, if any and the character
rolls of all the eligible officials shall be forwarded
by the Parishad to the Commission ........ ... ... "
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(4) The Parishad shall thereafter, in consultation
with the Commission, fix date, on which a Selection
Committee consisting of-
... ... ... ...
shall consider the cases of the eligible candidates
whose names are contained in the final lists drawn up
by the Commission and interview such of them as are
indicated by the Commission under clause (3) above.
(5) The lists of the names selected by the Committee
shall be taken with him by the representative of the
Commission
465
for placing them before the Commission, and the
Commission, shall thereafter send their final
recommendations to the Parishad.
(6) The Parishad shall draw from the first list
received from the Commission under clause (5) above, as
many candidates as there are permanent vacancies and
will thereafter re-arrange their names in accordance
with their seniority in the present service and they
will be appointed against the substantive vacancies.
The remaining names of the first list and those of the
second list will be regarded as forming the ’Select
List’ to be drawn up in order of merit. The officials
will be offered officiating or temporary vacancies in
the order in which their names have been arranged in
the aforesaid ’Select List’ as and when the vacancies
occur during the course of the year. This ’Select List’
will hold good only for one year or until such time
review is made at the following selection. (Emphasis
supplied)
(7) In case permanent vacancies do not occur for two
consecutive years and it becomes necessary to make a
selection for temporary or officiating vacancies only,
then also the procedure prescribed above will be
followed."
In accordance with the aforesaid rules, the Uttar
Pradesh Public Service Commission selected 148 persons for
substantive appointment as Tehsildars and their names were
shown in a list known as List A. The Commission also
selected 300 other persons for temporary and officiating
appointment as Tehsildars during the coming years and their
names figured in what was called List B. The respondent was,
however, not selected and consequently his name could not be
included in either of the aforesaid two lists, presumably
because he had an adverse entry forming part of the remarks
recorded on his work and conduct and had also been shown
down below at serial No. 557 in the seniority list of Naib
Tehsildars in the year 1956 Though the adverse entry was
expunged in the year 1969 and his seniority was also re-
fixed at serial No. 216 on 6th of October 1970, as there was
no selection after 1966, his name could not be included in
either of the two lists. He has, however, no grievance on
that account.
Subsequently, the State Government made the Uttar
Pradesh Promotion by Selection in Consultation with Public
Service Commission (Procedure) Rules, 1970 (hereinafter
referred to as ’the
466
1970 Rules’). These rules govern various Services, to be
more specific 29 U.P. Services including the Service of
Tehsildars. The purpose of these rules obviously was to
standardise the procedure for promotion and make it uniform
in respect of all such Services. The procedure laid down in
the 1970 Rules for promotion as Tehsildar was not
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substantially different from that laid down in the Tehsildar
Rules 1966. The respondent, therefore, did not feel
aggrieved even by the introduction of the 1970 Rules. His
grievance started only with the introduction of rules 7-A
and 7-B to the 1970 Rules by notification No.42/4/1966-
Apptt. 3 dated 4th of July 1972. As the question to be
decided in this case is about the vires of rules 7-A and 7-
B, it will be appropriate to read them at this stage,-
"7-A. Notwithstanding anything contained in these
rules, but subject to the proviso to rule 18, the names
of candidates on the Select List appointed in temporary
or officiating vacancies prior to the date of issue of
this notification, shall be rearranged in order of
seniority."
"7-B. The candidates of the Select List as
rearranged in accordance with rule 7-A shall be
appointed against substantive vacancies in preference
to any candidate selected in accordance with the
provisions of these rules."
The complaint of the respondent was that the aforesaid
new rules 7-A and 7-B were discriminatory and violative of
Article 14 and 16 of the Constitution, in as much as the
candidate in the Select List of 1966 were to be appointed
against substantive vacancies in preference to any candidate
selected in accordance with the provisions of the 1970 Rules
and unless the candidates in the list were exhausted, other
eligible candidates were not to be considered for promotion
so that their chances of promotion would be deferred to an
undated future. The further grievance of the respondent was
to the following effect. The Select List was to hold good
only for one year or until such time a review was in made at
the following selection. Thus, the life of the Select List
of 1966 was for one year only on the expiry of which it died
its natural death. In this view of the legal position, the
appointment of Tehsildars from the Select List of 1966 after
the expiry of a year from the date of its operation was
illegal on the face of it. On the strength of Rule 7-A and
rule 7B, no selection was to be held unless 300 persons
included in List were absorbed.
The respondent challenged the vires of rules 7-A and 7-
B by filing a petition under Article 226 of the Constitution
in the High
467
Court of Allahabad. That petition was allowed in part and
rules 7-A and 7-B were declared ultra vires Articles 14 and
16 of the Constitution in the impugned judgment.
Shri Dixit, appearing for the State has contended that
a mere chance of promotion is not a condition of service
giving rise to a fundamental right. We are afraid this
contention is irrelevant to the decision of this case. The
precise grievance of the respondent has been that he had a
fundamental right of being considered for promotion when
others similarly situated were so considered and that if he
was not considered in a situation like that, he was
discriminated against and was denied equality of
opportunity. This grievance, if factually correct, must be
held to be well-founded.
It was next contended by Shri Dixit that the candidates
covered by rule 7-A are a class by themselves, that the
classification is a reasonable classification and that as
the respondent does not satisfy the requirements of rule 7-
A, he cannot claim that any infraction of Article 14 or 16
bas taken place.
According to Shri Dixit, two conditions are necessary
to bring a person within the fold of that rule: (1) the
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candidate’s name must have been included in the Select List;
and (2) he must have been appointed in a temporary or
officiating vacancy prior to the date of issue of the
notification of 4th July 1972. The respondent did not
satisfy these requirements and therefore did not fall within
the purview of rule 7-A. Rule 7-B gives preference to the
candidates in the Select List as rearranged in accordance
with rule 7-A, which, according to Shri Dixit, was based on
a reasonable classification and therefore the respondent can
have no grievance. In support of this contention, reliance
has been placed on Reserve Bank of India v. C.S. Rajappan
Nair and others, State of Jammu & Kashmir v. Triloki Nath
Khosa and others, Ramesh Prasad Singh v. State of Bihar and
others, and Ganga Ram and others v. Union of India and
others. In C.S. Rajappan Nair (supra), the classification of
a group of employees who had officiated in a particular
capacity as a different class, treating them differently
from others who had not the opportunity to function as such,
was held to be an intelligible differentia which can stand
the test of equality provided by Article 16 of the
468
Constitution. In Triloki Nath Khosa (supra), persons
appointed directly and by promotion had integrated into a
common class of Assistant Engineers. The question arose
whether for the purpose of promotion to the cadre of
Executive Engineers, they could be classified on the basis
of educational qualification. It was held by this Court that
the rule providing that graduates shall be eligible for such
promotion to the exclusion of diploma holders did not
violate Articles 14 and 16 of the Constitution. In Ramesh
Prasad Singh (supra), this Court, dealing with principle of
equality under Articles 14 and 16, observed,-
"The doctrine of equality before law and equal
protection of laws and equality of opportunity in the
matter of employment and promotion enshrined in
Articles 14 and 16 of the Constitution which is
intended to advance justice by avoiding discrimination
is attracted only when equals are treated as unequals
or where unequals are treated as equals. The guarantee
of equality does not imply that the same rules should
be made applicable in spite of differences in their
circumstances and conditions. Although Articles 14 and
16 of the Constitution forbid hostile discrimination,
they do not forbid reasonable classification and
equality of opportunity in matters of promotion means
equality as between members of the same class of
employees and not equality between members of separate
independent classes.
... ... ...
Equality is for equals, that is, who are similarly
circumstanced are entitled to an equal treatment but
the guarantee enshrined in Articles 14 and 16 of the
Constitution cannot be carried beyond the point which
is well-settled by a catena of decisions of this Court
"
In Ganga Ram (supra), dealing with Articles 14 and 16 of the
Constitution, this Court again held,-
"Mere production of inequality is not enough to
attract the constitutional inhibition because every
classification is likely in some degree to produce some
inequality. The classification need not be
scientifically perfect or logically complete. The
matter has to be considered in a practical way without
whittling down the equality clause. The classification
must however be founded on intelligible differentia
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469
which on rational grounds distinguishes persons grouped
together from those left out, and it must bear a just
and reasonable relation to the object sought to be
achieved."
There is no dispute with the principles of law laid
down in the aforesaid cases. By now, the principles of
classification are well-settled and need not be repeated.
The question is of application of those principles to the
facts of the present ease. The only basis for grouping the
300 persons in one category is that they were included in
the Select List of 1966 and that they were officiating. The
respondent in the instant case could not be selected in the
selection of 1966 on account of an adverse entry which, as
stated earlier, was subsequently expunged. His position in
the seniority list was also corrected but because no
selection took place after 1966 the respondent could not be
included in the list for no fault of his. If there had been
a selection and the list had been revised every year as is
the requirement of the rules, the respondent, and like him
many others, would have been included in the list. For
example, some candidates who had not completed seven years
could not be eligible for promotion and could not be
included in the Select List of 1966 but after a lapse of
time they became eligible and they might have been selected
if selection had taken place. But, the door for promotion
had been of reclosed for the respondent and many others like
him by rules 7-A and 7-B for no fault of theirs. In this
connection reference may be made to the objection of the
Public Service Commission and the letter of the Secretary of
the Board of revenue, to show that it would take. about 24
years to absorb 300 persons included in List B. The
Secretary, Board of Revenue, vide his letter No.
14708/T.N.T.-59-A/70 dated 30th of January 1973, to the
Secretary, Government Revenue Department (filed as Annexure
II to the counter-affidavit), recommended that the List may
not be enforced. In so far as it is pertinent for the
present purpose, it reads,-
"On the basis of the selection in the year 1966,
the List ’B’ was prepared for 300 names. During this
period all the candidates of list ’B’ are working. So
long as all these candidates are not absorbed in the
regular vacancies, the question of second selection
does not arise till then. Only 56 vacancies have
occurred after the selection of 1966. According to this
the average vacancies in a year are at 10, with the
result, it will take 24 years to exhaust the above
list. Till then no selection is Possible."
470
In the circumstances, the Secretary requested the
Government to take steps to recommend to the Public Service
Commission to make the next selection of Tehsildars without
any further delay. The objections of the Secretary, Board of
Revenue, were similar to the objections raised by the Public
Service Commission. These letters and objections point out
unmistakably that the selection was unnecessarily postponed
only to accommodate the 300 persons included in the Select
List of 1966. There appears to be no rational basis for such
a departure from the ordinary operation of the 1970 Rules
which envisaged the preparation of a new list every year and
for singling out one particular list for according
preferential treatment to the persons whose names were
contained therein. The classification in this case therefore
cannot be said to be a reasonable classification based on
intelligible differentia having a nexus to the object sought
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to be achieved.
It is, however, contended for the State that the
selection could not take place for all these long years
because of a stay order passed by the High Court in
petitions filed by some candidates challenging the Tehsildar
Rules 1966. This has been refuted by Shri S.N. Kacker and a
finding recorded by the High Court makes out that there was
no order staying the holding of selection. All that was
stayed was the confirmation of the officers promoted to the
posts of Tehsildars. It is therefore not correct that
selection could not take place because of a stay order from
the High Court.
As a second limb of this argument, it was contended on
behalf of the State that the Government was the sole judge
of the administrative necessities and there being no rule to
the contrary, the Government could hold selection according
to the need and no exception can be taken to the power of
the State.
There is no denying the fact that the rules regulating
the conditions of service are within the executive power of
the State or its legislative power under the proviso to
Article 309 but even so, such rules have to be reasonable,
fair and not grossly unjust, if they are to survive the test
of Articles 14 and 16 of the Constitution. A rule which
contemplates that unless the list of 300 persons is
exhausted no other person can be selected, obviously is
unjust and it deprives other persons in the same situation
of the opportunity of being considered for promotion.
471
It was next contended for the State that the
declaration of rules 7-A and 7-B as ultra vires the
Constitution would affect not only the incumbents of one
Service but of 29 Services and a fairly large number of
persons would be affected in that situation, that the
respondent did not implead any of those persons likely to be
affected in the various Services, that in any case, at least
the Naib Tehsildars or other persons who have been promoted
as Tehsildars and who are likely to be affected by the
declaration of rules 7-A and 7-B as ultra vires should have
been impleaded as parties and that in the absence of those
parties, the writ petition was not maintainable and should
have been dismissed by High Court on that score.
Shri S.N. Kacker appearing for the respondent, on the
other hand, has contended that no such plea was taken on
behalf of the State before the High Court and that,
therefore, it cannot be permitted to take up a new plea for
the first time before this Court. Elaborating the point,
Shri Kacker urged that if such a plea had been taken before
the High Court, the respondent would have impleaded all
those persons as parties and filled up the lacuna, if any,
and that if the State is permitted to take up such a plea
for the first time before this Court, it would seriously
prejudice the case of the respondent. Alternatively, it was
contended that the respondent is aggrieved by the amendment
of the 1970 Rules by the 1972 notification which introduced
rules 7-A and 7-B, that the respondent has challenged the
vires of rules 7-A and 7-B and only the State is a necessary
party who has already been impleaded, and that at the most,
those persons who are likely to be affected in case the said
rules are declared ultra vires, may be proper parties but
are not necessary parties. He sought to take support for his
contention from B. Gopalaiah v. Government of Andhra
Pradesh, J.S. Sachdev & Ors. v. Reserve Bank of India &
Anr., and General Manager, South Central Railway,
Secundrabad & Anr. v. A . V. R. Siddhahi and Ors In
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Gopalaiah’s case dealing with a situation as in the present
case, the Andhra Pradesh High Court held,-
"This is not a case of discrimination of
individual against individual. This is a case where a
whole class of citizens have been discriminated against
and the court can not refuse to give relief to them on
the ground that the
472
class of persons who will be benefited as a result of
the discrimination are not before the Court. The person
who complains of discrimination cannot be expected to
search the country for all persons who are likely to be
benefited by its discriminatory policy. Of course, if
the discrimination is in favour of an individual
against an individual different considerations might
arise. But this is not such a case. In my opinion,
where a scheme formulated by the Government is attacked
on the ground of its being discriminatory the position
is precisely the same as if a statute is attacked as
being discriminatory and it can never be an answer to
such an attack that persons likely to be benefited by a
discriminatory statute should be brought before the
Court before the statute is struck down."
In J.S. Sachdev’s case (supra), a Division Bench of the
Delhi High Court endorsed the view taken in Goplaiah’s case
(supra). In South Central Railway’s case (supra), a similar
objection taken before the Supreme Court was repelled on two
grounds, firstly, because this point was not canvassed in
the lower courts, and secondly, because the employees who
were likely to be affected as a result of the re-adjustment
of the petitioner’s seniority were at the most proper
parties and not necessary parties and their non-joinder
could not be fatal to the writ petition.
In view of the law laid down in South Central Railway’s
case (supra), the State cannot be permitted to take up a new
plea which was not taken before the High Court.
Shri B.P. Sharma had moved an application (C.M.P.
No.49051.80) for permission to intervene in the appeal on
the ground that he was vitally interested in the outcome of
the instant appeal which would have a great bearing upon the
claim petition pending before the Service Tribunal, Lucknow.
This application was ordered to be listed at the time of the
hearing of this appeal. He also moved an application
(C.M.P.No. 11949/80 for modification of the stay order dated
23rd of April 1980 in the appeal filed by the State, so as
to govern other cases affected by rules 7-A and 7-B of the
1970 Rules, as amended by the 1972 notification. Later on,
he realised that such an application could not be moved on
behalf of an intervener, and therefore, instead of pursuing
this application, he
473
filed Writ Petition No. 3806 of 1980, which has been dealt
with separately. Both these applications are, therefore,
dismissed.
For the reasons given above, we find no error in the
impugned judgment. We accordingly dismiss the appeal.
Parties shall, however, bear their own costs.
S.R. Appeal dismissed.
474