Full Judgment Text
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PETITIONER:
P.N. KOHLI & ORS., UNION OF INDIA & ANR. ETC.
Vs.
RESPONDENT:
R. IYYASWAMY & ORS.
DATE OF JUDGMENT: 09/09/1997
BENCH:
S. C. AGRAWAL, G. T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
Present
Hon’ble Mr. Justice S.C. Agrawal
Hon’ble Mr. Justice G.T. Nanavati
Altaf Ahmed, Additional Solicitor General, Hemant Sharma,
S.D. Sharma, S.K. Dwivedi, V.K. Verma, Advs with him for the
appellant in C.A. No. 6122/97
Ranjit Kumar, and Ms. Anu Mohla, Advs. for the Appellant in
C.A. No. 6123/97
M.A. Krishna Moorthy, Adv. for the Respondent
J U D G M E N T
The following Judgment of the Court was delivered:
Union of India & Anr.
V.
R. Iyyaswamy & Ors.
WITH
CIVIL APPEAL NO. 6123 OF 1997
[Arising out of SLP (C) No.22848 of 1996
J U D G M E N T
NANAVATI, J.
Leave granted. Heard learned counsel for both the
sides.
Only question that arises for consideration in these
appeals is whether Rule 2 (1) (a) of the Assistant Engineers
(Akashwani and Doordarshan Group ’B’ Posts) Recruitment
(Amendment) Rules, 1985 is discriminatory and, therefore,
violative of Articles 14 and 16 of the Constitution. The
Principal Bench of the Central Administrative Tribunal has
held that it is, Challenging the decision of the Tribunal,
the Union of India and also P.N. Kohli and Malchar Malviya
who were respondent Nos.2 and 3 before the Tribunal, have
filed these appeals.
The All India Radio and Doordarshan have a common
technical cadre. The channel of promotion in the Engineering
Section is from the post of Engineering Assistant to the
post of Senior Engineering Assistant and then to the post of
Assistant Engineer (Gazetted). Earlier, recruitment to the
post of Assistant Engineer was made in accordance with the
Recruitment Rules of 1972. Under those Rules, 60 per cent
posts of Engineering Assistants were reserved for
departmental Engineering Assistants who were degree-holders
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and 40 per cent posts were filled up by direct recruitment
on the basis of Engineering Services Examination conducted
by the Union Public Service Commission. Those Rules were
replaced by the Assistant Engineers (Akashwani and
Doordarshan Group ’B’ Posts) Recruitment Rules of 1982.
Under these rules also, before they were amended in 1985, 60
per cent of the promotion quota was filled up from amongst
Graduate Engineers and remaining 40 per cent posts from the
Diploma-holders after they cleared the departmental
examination. In 1985, the President made the following rules
to amend the 1982 Rules:
"(1) These rules may be called the
Assistant Engineers (Akashwani
and Doordarshan Group ’B’
Posts) Recruitment (Amendment)
Rules, 1985.
(2) They shall come into force on
the date of their publication
in the Official Gazette.
2. In the Schedule to the
Assistant Engineers (Akashwani
and Doordarshan Group ’B’
Posts) Recruitment Rules, 1982
(1) In column 11, for the entry,
the following entry shall be
substituted. namely:-
"Promotion".
(a) 25% of the Promotion quota
By selection in accordance
with provisions laid down in
Appendix I to these rules.
(b) 75% of the promotion quota
By Selection on the basis of
Departmental competitive
Examination conducted in
accordance with provisions
laid down in Appendices II and
III to these rules.
x x x x x x x
x x x x x
(ii) For Appendix I, the following
Appendix shall be substituted
namely:-
"APPENDIX - I"
(See rule 3)
Promotion by selection against
25% quota
(1) The promotion by selection
shall be made by the
Departmental Promotion
Committee. The eligibility for
consideration for promotion by
the Departmental Promotion
Committee shall he as
follows:-
(a) Senior Engineering Assistants
with 8 years regular service
in the grade; failing which
Senior Engineering Assistants
with 8 years’ combined regular
service in the grades of
Senior Engineering Assistant
and Engineering Assistants;
and
(b) Possessing educational
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qualifications not lower than
those prescribed for direct
recruits to the post of
Engineering Assistant in the
Akashwani and Doordarshan."
We have nor set out the remaining rules, as they have
no bearing on the question to be decided in these appeals.
These Amendment Rules of 1985 were challenged by the
graduate Senior Engineering Assistants/Assistant Engineers
as discriminatory and violative of Articles 14 and 16 of the
Constitution by filing a writ petition in the Madras High
Court. It was subsequently transferred to the Madras Bench
of the Tribunal and renumbered as T.A. No.587 of 1986. It
was then transferred to the Principal Bench of the Tribunal
and renumbered as T.A. No.85 of 1987. The contention of the
applicants was that till 1972 all the higher posts were
reserved for educationally better qualified persons and
thereafter a certain percentage was reserved for them; but,
as a result of the 1985 Amendment, the reservation in favour
of educationally better qualified persons has been
completely done away with the result that they will now lose
initiative obtaining higher educational qualifications. It
was submitted that now the Engineering graduates are equated
with diploma-holders and the earlier distinction between
graduate Engineers and diploma holders, which was a
recognized and valid distinction, has been obliterated to
the detriment of degree-holder Engineers The Tribunal
rejected the contention raised on behalf of the applicants
that Rule 2 (1) (b) of the Amendment Rules providing for
filling up of 75 per cent of the posts in the promotion
quota by selection on the basis of departmental competitive
examination was either discriminatory or arbitrary merely
because it provided for competitive examination and made the
diploma-holder eligible for competing with the degree
holders. It held that by permitting both the degree and
diploma-holders to compete for 75 per cent promotion quota,
the Government cannot be said to have made unequals equal,
more particularly in view of the purpose and reason behind
the said rule.
As regards the rule relating to 25% promotion quota,
the Tribunal, however, took a different view and held as
under:
"37. So far as the remaining 25%
quota is concerned, as provided in
rule 2 (1) (a) of the Appendix to
that rule, this is to go by
seniority. Degree holders and
diploma holders have been placed on
par. This may tend to discourage
persons from pursuing degree course
for getting higher and better
promotional avenues if the same can
be available after getting a
diploma. Degree and diploma holders
have come through different
channels and they have entered
service through their own channel,
and at that stage requisite minimum
qualifications are different. The
trend of cases referred to above is
that even. if there is some
discrimination as recognition of
this difference, it would be within
the constitutional limits and will
not go against the constitutional
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provisions and aspirations.
38. The contention that complete
obliteration of difference between
degree and diploma holder by
promoting them on seniority basis
which may even give an edge to
diploma holders over degree holders
because of entry on a lower post
earlier, may create frustration and
take away initiative and lmpetus
for higher educational and better
standard is not without force. They
have been put on the same par so
far as 75% posts are concerned as
stated above. If for 25% posts also
they are also put on the same par
with even some edge to diploma
holders because of their longer
period of service, the same tends
to make two channels equal. Inter-
rotation of two channels may given
them double benefits.
"40. So far as this part of the
rule viz., regarding 25% quota is
concerned, it is apparent, that the
same makes unequal as equal and
does not fully fit in with the
equality clause which stands in
Article 14 of the Constitution of
India which permits reasonable
classifications. Thus, it being
bad, discriminatory and violative
of Articles 14 of the Constitution
of India and legally barred, the
same has got to be struck down
.............."
In these appeals, the appellants have questioned that
part of the decision of the Tribunal whereby Rule 2 (1) (a)
of the Amendment Rules of 1985 has been declared ultra vires
Article 14 of the Constitution. Mr. Altaf Ahmad, learned
Additional Solicitor General appearing for the Union of
India, has submitted that the decision of the Tribunal is
wrong not only because it is based upon an incorrect premise
that degree and diploma-holders enter the cadre of
Engineering Assistants through different channels at which
stage the minimum qualifications for them are different but
also because it is inconsistent with the decision of this
Court in N. Abdul Basheer V/s. K.K. Karunakaran [(1989)
Supp. 2 SCC 344].
As noted by the Tribunal, minimum qualification for
direct recruitment as Engineering Assistant is diploma in
Engineering or B.Sc. degree with Physics as the main
subject. All those who are recruited as Engineering
Assistants constitute one single cadre. There is no
difference as regards their pay or other emoluments on the
ground that they are degree-holders or diploma-holders. It
is nobody’s case that the nature of duties and
responsibilities of diploma-holders is different from those
of the degree holders. Thus no distinction is recognised
between graduates and diploma-holders at the level of
Engineering Assistants and they are all considered as
equals. The Tribunal was, therefore, wrong in proceeding on
the basis that the degree-holders and diploma-holders enter
the cadre of Engineering Assistants through different
channels and that at the stage of entry, the requisite
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qualifications are also different. Even when the Engineering
Assistants are considered for promotion to the higher post
of Senior Engineering Assistants no distinction is made on
the ground of their educational qualifications. The cadre of
Senior Engineering Assistants is also a single undivided
cadre and in the matter of pay, duties and responsibilities,
all Senior Engineering Assistants are treated equally.
Except that the post of Assistant Engineer is a Group ’B’
gazetted post, no other reason could be advanced by the
learned counsel appearing for the contesting respondents
justifying a necessity to make a distinction between a
graduate Engineer and diploma-holder while considering a
Senior Engineer Assistants for promotion to that post.
Simply because a certain percentage of the posts of
Assistant Engineers was reserved for graduate Engineers in
the past, that did not create any vested right in their
favour. If merit and efficiency are the considerations while
making promotions to the higher posts, there is no reason
why a certain percentage of posts of Assistant Engineers
should be reserved for graduate Engineers and they should
not be made to compete with diploma-holders. A degree in
Engineering is a better educational qualification than a
diploma in Engineering; and, therefore, while competing for
the post of Assistant Engineers, the graduate Engineers will
have an edge over the diploma-holders. By adopting the new
policy contained in Rules 2 (1) (a) and (b) of the Amendment
Rules, the Government appears to have made an attempt to
balance the advantages arising out of merit and experience
based on long service. The per cent promotion quota rule
enables those Senior Engineering Assistants who have
rendered long years of service but due to certain reasons
like age etc. do not desire to appear for the competitive
examination but are otherwise fit for being promoted to such
higher post. The policy underlying Rules 2 (1) (a) and (b)
of the Amendment Rules of 1985, therefore - cannot be
regarded either as discriminatory or a arbitrary. It is also
not correct to say that by providing for promotion by
selection by Department Promotion Committee against the 25
per cent promotion quota what the Government has done is to
make unequals equal. As stated earlier, the diploma-holders
were treated as equals in all respects in the subordinate
cadres of Senior Engineering Assistants and Engineering
Assistants.
In N. Abdul Basheer’s case (supra), in the context of a
rule fixing graduate-non graduate ratio for filling up the
promotional post of Excise Inspector this Court observed as
under:
"13. ... 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 Officers.
There is no evidence of any
special responsibility being vested
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in graduate Preventive Officers.
Once they were promoted as Excise
Inspectors there was no
distinction between graduate and
non-graduate Excise Inspectors."
While dealing with the contention that the recognition
of graduation is recognition of merit and that more merit in
the post of Excise Inspector would be conducive to better
administrative efficiency, this Court further observed thus:
"15. ... Ordinarily, it is for the
government to decide upon the
considerations which, in its
judgment, should underlie a policy
to be formulated by it. But if the
considerations are such as prove to
be of no relevance to the object of
the measure framed by the
government it is always open to the
court to strike down the
differentiation as being violative
of Articles 14 and 16 of the
Constitution. In the present case,
we have already commented on the
circumstance that the conditions of
employment and the incidents of
service recognise no distinction
between graduate and non-graduate
officers and that for all material
purposes they are effectively
treated as equivalent. Accordingly,
this contention must also be
rejected."
In view of this clear pronouncement of law, the
contrary view taken by the Tribunal has to be regarded as
bad. In the result, these appeals are allowed. The order
passed by the Tribunal is set aside. Rule 2 (1) (a) of the
Amendment Rules of 1985 is held to be valid and the T.A.
No.85 of 1987 filed by the contesting respondents, is
dismissed. In view of the facts and circumstances of the
case, there shall be no order as to costs.