TMI Blog1973 (9) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... e correctness of that view is challenged by the State of Jammu and Kashmir in this appeal by special leave. Respondents, who are serving in different branches Of the Engineering Service of the appellants, were appointed as Assistant Engineers between 1960 and 1966 by promotion from the Subordinate Engineering 77 5 Service. Their conditions of service were then governed by the rules published under Order No. 1328-C of 1939. Those rules, to the extent material, read thus: The following rules prescribing the procedure relating to recruitment to the gazetted services are sanctioned:- (3) Special qualifications.-Under rule, 18 of the Kashmir Civil Services Rules (General), the following special qualifications are prsecribed in the case of candidates for direct recruitment or recruitment by transfer, as the case may be, to the services mentioned below KASHMIR ENGINEERING SERVICE Category 2 of Class II Direct Degree in Civil Engineering (Assistant Engineer). of any recognised university By transfer (i)Degree or Diploma in Civil Engineering of any recognizedUniversity or UupperSubordinates Diploma ofany recognised College of Engineering and (ii)Service as a Supervisor for a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Engineers with Diploma Course . This rule was challenged- by the respondents in so far as it denied to them an opportunity to cross the qualification bar. Then came the Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules, 1970 , gazetted on October 12, 1970. These rules provide for appointments to the gazetted posts in various branches of the Engineering Service of the appellants and supersede the old rules on the subject. By rule 3(f) 'promotion' is defined to mean promotion from one class, category or grade to another class, category or grade on the basis of merit and efficiency, seniority being considered only when merit was equal. Under the Schedule annexed to these Rules, recruitment to the cadre of Executive Engineers and above was to be made only by promotion. But as regards promotion to the posts of Executive Engineers, and to those only, it was provided that only those Assistant Engineers would be eligible for promotion who possessed a bachelor's degree in engineering or held the qualification of A-M-I.E., Section A, B and who had put in at least 7 years service in the J. K. Engineering (Gazetted) Service. This is the second of the two Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of equality. Lastly, the appellants disputed that application of the Rules to existing employees made the Rules retrospective in any sense. The learned single Judge, who heard the petition rejected the respondents' contentions but that judgment was reversed in appeal by a Division Bench of the High Court. Briefly, the Division Bench held that though it was open to the Government to make a reasonable classification of its employees, where the employees were grouped together and integrated into one unit without reference to their quali- fications, they formed a single class in spite of initial disparity in behalf of their educational qualifications and no discrimination could thereafter be made between them on the basis of such qualifications; that the discrimination made under the Rules of 1968 between diploma-holders and degree-holders was unconstitutional and that having prescribed diploma or a degree in engineering with practical experience as a minimum qualification for entry into service, it was not open to the Government to prescribe higher educational qualifications for promotion from the cadre of Assistant Engineers to that of Executive Engineers. The main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was not discharged on the record -of the case; and that, if the object of the classification was the attainment of efficiency, the Government could have achieved that object, and perhaps in a better measure. by making talent, experience and efficiency as criteria for determining promotional opportunities. Mr. Gupte, appearing for Respondents 18 to 29, took the stand that once there is a class of equals no discrimination can be made among them on any ground whatsoever. Therefore, if chances of promotion are denied to a few within a class of equals, there is an inherent vice attaching to the classification and no question of the reasonableness of the new yardstick can possibly arise. In the alternative, Mr. Gupte contended, possession of a degree qualification was not a reasonable basis for segregating degree-holders and diploma-holders into water tight compartments. The impugned rule of 1970 was made in the awareness that only some Assistant Engineers were graduates and the facts of the case disclosed no reasonable basis for differentiation between them and the diploma-holders in regard to promotion as Executive Engineers. Finally, the learned counsel contended that the unreaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om a discriminatory vice is another matter which we will presently consider but surely, the rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should have remained immutable and schemes of compulsory retirement in public interest ought to have foundered on the rock of retroactivity. But such is, not the implication of 'servicerules nor is it their true description to say that because they affect I existing employees they are retrospective. It is well-settled that though employment under the Government like that under any other master may have a contractual origin, the Government servant acquires a status' on appointment to his office. As a result, his rights and obliga- tions are liable to be determined under statutory or constitutional authority which for, its exercise, requires no reciprocal consent. The Government can alter the terms and conditions of its employees unilaterally and though in modern times c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary material before the court that the said classification is unreasonable and violative of Art. 16 of the Constitution. Thus, it is no part of the appellants' burden to justify the classification or to establish its constitutionality. Formal education may not always produce excellence but a classification founded on variant educational qualifications is, for purposes of promotion to the post of an (1) Shri Ram Krishan Dalmia V. Justice S. R. Tendolkar Ors.( (1959] S. C. R. 279, 297) Executive Engineer, to say the least, not unjust on the fact of it and the onus therefore cannot shift from where ii originally lay. Respondents have assailed the classification in the clearest terms ,but their challenge is purely doctrinaire. 'Academic or technical qualifications can be germane only at the time of initial recruitment; for purposes of promotion, efficiency and experience alone must count'this is the content of their challenge. The challenge, at best, reflects the respondents' opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view. But we can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V. State of Uttar Pradesh Ors. 1966, (3) S. C.R. 328, 336 and 337, Probhudas Morarjee Rajkotia Ors. V. Union of India Ors., A. I. R. 1966 S. C. 1044, 1047 did the learned Attorney General press for a decision on any such ,ground. We have heard the learned counsel fully on the merits of the matter, especially as the question of onus was not presented before the High Court in the form in which it was presented before us. We will now advert to the merits of the other contentions. The Proviso to Rule 10(IIB) (1) of the 1968 Rules under which Diploma-holders were debarred from crossing the Qualification Bar placed at ₹ 610 need not detain us because the learned Attorney General states that the Bar has since been removed with retrospective effect. The 1968 scale of pay will therefore apply equally to the degree- holders and diploma-holders in the cadre of Assistant Engi- neers, with effect from the date on which the 1968 Rules came into force. Respondents, accordingly, will be eligible to reach the ceiling of the scale regardless of the fact that they hold a diploma and not a degree in Engineering. The main question for decision arises out of the challenge to the Rules of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Department. It is transparent from this analysis that till about 1968 there was a dearth of Engineering graduates. In 1962, the ratio between graduates and diploma-holders was 1 : 2. In 1968 it became almost 2 :1 and in 1970 the position remained more or less unchanged. The appellants were entitled to take into account this spurt in the availability of persons with higher educational qualifications for manning the next higher post of promotion. In fact, it may not be overlooked, that even under the recruitment rules of 1939 graduates in Civil Engineering were alone eligible for direct appointment as Assistant Engineers in the Kashmir Engineering Service. Only departmental promotions could be made from amongst diploma-holders and that too if they had put in 5 years' service in the cadre of Supervisors. There is therefore no substance in the contention that the record sheds no light on why a change was thought necessary in a system that had stood the test of time. In 1968 itself when there was a proliferation in the ranks of graduates, an attempt was made which was later rectified, to offer a higher incentive to graduates by the placement of a Qualification Bar. We are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved. Judicial scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis whether it bears nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation of the basis of classification, for were such an inquiry permissible it would be open to the courts to substitute their own judgment for that of the legislature or the rulemaking authority on the need to classify or the desirability of achieving a particular object. Judged from this point of view, it seems to us impossible to accept the respondents' submission that the classification of Assistant Engineers into Degree-holders and Diploma- holders rests on any unreal or unreasonable basis. The classification, according to the appellants, was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly correlated to it for higher educational qualifications are at least presumptive evidence of a higher mental equipment. This is not to suggest tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. R. 407. State of Mysore Anr. vs. P. Narasing Rao.) where the cadre of Tracers was reorganized into two, one consisting of matriculate Tracers with a higher scale of pay and the other of non-matriculates in a lower scale, it was held that articles 14 and 16 do not exclude the laying down of selective tests nor do they preclude the Government from laying down qualifications for the post in question. Therefore, it was open to the Government to give preference to candidates having higher educational qualifications. In Ganga Ram v. Union of India((1970] (3) S. C. R. 481, 488.), it was observed that The State which encounters diverse problems arising from a variety of circumstances is entitled to lay down conditions of efficiency and other qualifications for securing the best service for being eligible for promotion in its different departments. In' The Union of India v. Dr. (Mrs.) S. B. Kohli(A. I. R. 1973 S. C. 811, 813.), a Central Health Service Rule requiring that a professor in Orthopaedics must have a post-graduate degree in the particular speciality was upheld on the ground that the classification made on the basis of such a requirement was not without reference to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1970 Rules, there were 6 persons in the cadre of Superintending Engineers all of whom, except one, are graduates. , The one at the top is an L.E.E. but he entered service in 1939 and must now be quite on the verge of retirement. There is therefore but slender chance that a non-graduate could climb into the top position of a Chief Engineer, which post can, under the rules of 1970, be filled only by promotion from amongst Superintending Engineers. Promotion to the cadre of Superintending Engineers can be made only from amongst Executive Engineers and the, Seniority list shows that out of 22 Executive Engineers, 19 are graduates and only 3 are diploma-holders. Out of the 19, the first 15 according to seniority are all graduates so that the chances of a diploma-holder being promoted as a Superintending Engineer are rairly remote. With the new rules coming info force, all Executive Engineers will, after October 12, 1970, be appointed from amongst graduates in the rank of Assistant Engineers and therefore the cadre of Executive Engineers will soon consist of graduates exclusively. The Governor was entitled to give weight to these practical considerations and to restrict the operation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 185.). That case is crowded with facts and requires a careful consideration for its proper understanding. Vacancies in Grade 'D' of Train Examiners were filled in Roshan Lal's case by (a) direct recruits i.e., apprentice train examiners and (b) promotees from the class of skilled artisans, in the ratio of 50 :50. Promotion from Grade 'D' to Grade 'C' was to be made on the basis of seniority-cum- suitability. In October, 1965 the Railway Board issued a notification providing that 80% of the vacancies in Grade 'C' would be filled up from the class of apprentice train examiners recruited on and after April 1, 1966 and the remaining 20% from amongst the train examiners in Grade 'D'. The notification further provided That apprentice train examiners who were absorbed in Grade 'D' before April 1966 would be accommodated en bloc in Grade 'C' in the 80% of the vacancies, without undergoing any selection. With regard to 20% of the remaining vacancies it was provided that the promotion would be on the basis of selection and not on the basis of seniority-cumsuitability. The petitioner, Roshan Lal Tandon, who had entered Railway se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Grade 'D' by March 31, 1966, because the notification provides that this group of Apprentice Train Examiners should first be accommodated en bloc in grade C' upto 80 per cent of vacancies reserved for them without undergoing any selection. As regards the 20 per cent of the vacancies made available for the category of Train Examiners to which the petitioner belongs the basis of recruitment was selection on merit and the previous test of seniority-cum-suitability was abandoned. In our opinion, the present case falls within the principle of the recent decision of this Court in Mervyn v. Collector [1966(3) S.C.R. 600]. The key words of the judgment are : The, recruits from both the sources to Grade 'D' were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade 'C '. (emphasis supplied). By this was meant that in the matter of promotional opportunities to Grade 'C', no discrimination could be made between promotees and direct recruits by reference to the source from which they were drawn. That is to say, if ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be no impediment in classifying them on the same basis for purposes of promotion. The ratio of Roshan Lal's case can at best be an impediment in favouring persons drawn from one source as against those drawn from another for the reason merely that they are drawn from different sources. There is an aspect of Roshan Lal's case which may not be ignored. The Union of India had contended by its counter- affidavit therein that the reorganization of the service was made with a view to obtaining a better and more technically trained class of Train Examiners which had become necessary on account of the acquisition of modern types of Rolling Stock, complicated designs of carriages and wagons and greater speed of trains under the dieselisation and electrification programmes. This contention, though mentioned in the affidavit, was not placed before the court as is transparent from the judgment. What is impact would have been on the ultimate conclusion need not be speculated, for it is enough for understanding the true ratio of the judgment to say that the case was decided on the sole basis that persons recruited from different sources were classified according as whether they were appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate articles 14 and 16 of the Constitution and must be upheld. But we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good government and excellence and equality are not friendly bed- fellows. A pragmatic approach has therefore to be adopted in order to harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment. What after all is the operational residue of equality and equal opportunity ? For reasons indicated, we allow the appeal but there will be no order as to costs. S. M. Pandit v. State of Gniarar, A. 1. R. 1972 S. C. KRISHNA IYER, J. We fully endorse what has been said by our learned brother Chandrachud, J., but the profound depths of equal justice in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e were good enough, in the past decades, to go to the top of the ladder, as the facts of this case admittedly disclose. However, in these young days few engineering graduates in the State and few engineering colleges in the country compelled Government to recruit diploma holders and promote them to higher offices. But circumstances have changed, needs have increased, availabilities have expanded and inequalities at the educational level have been partly eliminated. And so personal policy, with an eye on efficiency, has changed. While we agree with counsel that 'chill penury' should not ,repress their noble rage', still during our transitional developmental stage the sacrifice of technical proficiency at the altar of wooden equality is an unreasonable injury the State cannot afford to self inflict. The 7 9 2 technology of equal opportunity is to assume diffusion of talent and to afford in-service facilities, through relaxation of rules and otherwise, to the weaker members to acquire better skills. The wise and tonic words of our learned brother, if we may say so with great deference, are however portentous. While striking a balance between the long hunger for equal ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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