Madras High Court
K. Revathy And Ors. vs The High Court Of Judicature ... on 22 February, 1994
Equivalent citations: (1994)2MLJ126
JUDGMENT Thangamani, J.
1. The appellants 35 in number are all working as Readers/Examiners in the High Court at Madras. Though their initial appointment was temporary, eventually their services were regularised within category 8 of Division II of the High Court Service Rules. They possessed the minimum educational qualification for the post of Reader/Examiner at the time of their entry into service. They were qualified to be promoted as Junior Assistants (new redesignated as Assistants) which fall in category 6 of Division II. By virtue of an amendment to the High Court Service Rules in 1978, Under Rules 6(C)(i), no person would be eligible for appointment to category 6 of Division II unless he holds a degree of a University in the Indian Union. Under Rule 3 of the High Court Service Rules the next higher post to that of Assistant is, Assistant Section Officer which is category 5 of Division II. Rule 14 envisages promotion to the post of Assistant Section Officer in category 5 to be made from category 6 (Assistant) and category 7 (Typists/Stenotypists and Telephone Operators). Rule 6(C)(2) prescribes the minimum educational qualification for category 5 of Division II as a degree of a University of the Indian Union. However, as per the second proviso to Rule 6(C)(2), in the case of Typists and Steno-Typists in category 7, even if they are not degree-holders they will be eligible for appointment of category 5, if they possess the minimum educational qualification and qualified in the Account Test for Subordinate Officers Part I, Civil and Criminal Judicial Test Part I, II and III for members of the Judicial Department and the Translation Tests. Besides they should have put in a service for a period of 5 years as Typists and Stenotypists.
2. In Writ Petition No. 4306 of 1991, these Readers/Examiners sought issuance of writ of declaration or any other appropriate writ, order or a direction declaring Rule 6(C)(i) of the Madras High Court Service Rules as illegal, arbitrary and unconstitutional stating that prior to amendment of Rules in 1978, the petitioners who are Examiners/Readers were eligible to be promoted as Assistants in category 6 without a degree. Typists/Stenotypists who fall within category 7 were also eligible to be promoted as Assistant Section Officers without a degree. Subsequent to the amendment, Readers/Examiners are not eligible to be promoted as assistants in category 6 unless they are graduates. But Typists, Stenotypists in category 7 are still eligible to be promoted as Assistant Section Officers in category 5 even if they do not possess a degree. Many of the present appellants are actually functioning as assistants and some are even working as Assistant Section Officers now. None of them is a degree-holder and so, they will not be entitled to move into the higher category. On the other hand there are instances where some persons were promoted upto the category of Court Officers which is category 3 of Division II, even though they did not have a degree. This has been done by giving relaxation in the rules. Therefore, there is no reason why the appellants should not be treated as eligible to be promoted to the category of Assistants. This discrimination against Reader/Examiner is violative of Articles 14 and 16 of the Constitution.
3. The Registrar, High Court who is the respondent resisted the action pleading that prior to 3.4.1978, the qualification prescribed for appointment to the post of Assistant (formerly known as Junior Assistant) was only the minimum general educational qualification. At that time the qualification prescribed for appointment to the post of Readers/Examiners was also the same. As such, Readers/Examiners being the feeder category get promoted to the then post of Junior Assistant (now known as Assistant). In the year 1978, in order to bring the pay structure of the staff of the High Court establishment on par with that of the members of the Tamil Nadu Secretariat Service which is generally higher than that of the other departments, amendments were introduced making provision in the new mode of direct recruitment and prescribing the qualification to the said post as possession of a degree of a University in India. Subsequent to the amendment, only degree holders working as Readers/Examiners were promoted to the post of Assistants in category 6. The appellants have not been promoted as they do not possess the requisite educational qualification of a degree. Further, except petitioners 1 and 3, the rest were regularly appointed only after the issuance of amendments of the High Court Service Rules in 1978. As such they were not eligible for promotion even when they entered service as regular Readers/Examiners.
4. The respondent pleaded in addition that the feeder-categories to the post of Assistant Section Officer in category 5 are Assistants in category 6, and Typists and Steno-Typists in category 7. Persons working in the feeder category have to pass all the departmental tests, besides possessing the educational qualification of a degree in order to make them fit for promotion to the post of Assistant Section Officer. The mode of recruitment, the qualification, nature of work, promotional opportunities, and pay and allowances to the post of Assistant Section Officers, Assistant, Typists and Stenotypists, Readers/Examiners are entirely different and one cannot be equated with the other. Even prior to the issuance of amendment in 1978, the educational qualification for the posts of Assistant Section Officer (then known as Assistant) was a pass in a degree examination. Rule 6(C)(i) of the High Court Service Rules, 1978 prescribed the educational qualification for appointment for the post of assistants in category 6, after taking into consideration; the duties and responsibilities, the mode of recruitment and they pay and allowances attached to the said post. The first proviso to Rule 6(C)(2) was introduced in order to enable the non-graduate assistants in category 6 to get an opportunity for promotion to the post of assistant Section Officer in category 5. Since at the time of amendment in 1978, the number of such non-graduates exceeded 40, and since they had a long service to their credit, it was thought they should not be deprived to the chance of promotion as they had entered service under the old Rules whereunder the graduate qualification was not necessary. Subsequent to 1978 no non-graduates has been appointed as assistants in category 6 and so there is no scope for any person who entered service after 1978 to invoke the proviso. Except the appellants 1 and 3, the service of others were regularised only subsequent to the amendment in 1978. This rule framed in exercise of the powers conferred to the Chief Justice under Article 229(1) and (2) of the Constitution of India cannot be held violative of Articles 14 and 16 merely because of the failure of certain individuals to qualify themselves to be eligible for promotion. Further, the appellants cannot compare themselves with Typists and Stenotypists, who are having technical qualifications.
5. The learned Judge who heard the writ petition held that prescribing minimum qualification of a degree for appointment of the posts of Assistant and Assistant Section Officer cannot be said to be unreasonable. The work of a Typist, Stenotypist, Assistant and Assistant Section Officer is onerous whereas the work of a Reader/Examiner is not so. As such there is no violation of Articles 14 and 16 of the Constitution in this case. Accordingly, he dismissed the writ petition with costs. And this order is challenged in the present appeal.
6. Thiru Vijayanarayanan learned Counsel for the appellants first took us through the relevant provisions of Rule 6(C)(i) and (2) of High Court Service Rules which runs as hereunder:
(c) No person shall be eligible for appointment to the service-
(i) In category 6 of Division II, unless he holds the B.A., or the B.Sc, or B.Com., degree of a University in the Indian Union. The method of appointment by direct recruitment shall be as prescribed in the Annexure to these Rules.
(2) In categories 2 to 5 of Division II unless he holds the B.A., or the B.Sc., or the B.Com., degree of a University in the Indian Union; Provided that a person who does not possess the qualification prescribed in the above clause shall be eligible for appointment to category 5 in Division II if he is qualified in the Account Test for Subordinate Officer, Part I, the Civil and Criminal Judicial Test, Parts I, II and III for members of the Judicial Department and the Translation Test.
Provided further that the Typists and Stenotypist borne in category 7 in Division II shall also be eligible for appointment to category 5 in Division II, if they satisfy the following conditions:
(i) They should possess minimum general qualification ;
(ii) They should have passed the Account Test for Subordinate Officer, Part I. The Civil and Criminal Judicial Tests Parts I to III for the members of the Judicial Department and the Translation test.
(iii) They should have put in a service for minimum period of 5 years as Typists and Steno Typists.
7. Learned Counsel for the appellants submitted that Readers/Examiners (category 8) and Typists/Stenotypists (category 7) are Feeder categories to the posts of Assistant Section Officer in category 5. While a Typist/Stenotypist can get promoted as Assistant Section Officer in category 5 without possessing any University degree, Readers/Examiners in category 8 cannot move to category 6 of Assistant and therefrom to category 5. As per the amended Rules, while a non-graduate assistant can be promoted as Assistant Section Officer, a non-graduate Reader/Examiner cannot be promoted as an Assistant and cannot claim further promotion as Assistant Section Officer. Categories 6 and 7 are higher categories than category 8. When petitioners who belong to category 8 are ineligible to be promoted to category 6 without a degree, Assistants in category 6 can be promoted to the next higher category of Assistant Section Officer (category 5) even without a degree and this is arbitrary, discriminatory, illegal and violative of Articles 14 and 16 of the Constitution of India. This differentiation is not a reasonable one and it does not bear any nexus to the object sought to be achieved by the impugned amendment of Rule 6(C)(i). If the object of prescribing degree qualification for the posts in category 6and 5 is efficiency of administration, this is not certainly achieved by the two provisos of Rule 6(C)(2) which enable Asistants in category 6 and Typists/Steno-Typists in category 7 to become Assistant Section Officers even without a degree.
8. Learned Counsel for the appellants further argued that the duties of Readers/Examiners arc more onerous that of Typists and steno-typists, In any event out of 35 petitioners, only 4 were working as Readers/Examiners while the remaining were actually functioning as Assistants or Assistant Section Officers due to shortage of staff. Lack of qualification was not an impediment for them to perform the duties in the higher posts. So, there is no reason why they cannot be regularised as Assistants and Assistant Section Officers.
9. The contention of learned Counsel for the appellants is based mainly on the ground that both category 8 Readers/Examiners and category 7 Typists/Stenotypists constitute a single class and if one of the feeder categories in eligible for promotion to higher post without holding a degree qualification, while the other is not so eligible, there will be violation of Articles 14 and 16 of the Constitution. But it is significant to note that both are not equal categories. The appellants themselves have admitted in their affidavit that categories 6 and 71 are higher categories than category 8 to which they belong. So, there is no question of equals being treated unequally for the purpose of promotion. All feeder categories cannot be equated when each category is a separate class by itself. The appellants cannot claim parity with those working as Typists/Stenotypists. The duties, responsibilities and nature of work of Readers/Examiners are not the same as that of Assistants and Typists/Stenotypists. Simply because, some of the Readers/Examiners are performing the work of Assistants and Assistant Section Officers on account of shortage of staff temporarily, they cannot acquired any right to be promoted to these categories without possessing the prescribed qualification. Readers/Examiners form a separate category and it is the prerogative right of the appointing authority to prescribe the qualification. So, there cannot be any violation of Articles 14 and 16 in this case.
10. Besides, classification on the basis of academic qualification is a well accepted basis for the purpose of promotion. Since the decision of the Constitution Bench in State of J. and K. v. Triloki Nath Khosa (, the Supreme 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 P. Munigesan v. State of Tamil Nadu (, the Supreme Court has laid down that the rule-making authority is competent to impose complete as well as partial restriction on a category of employees for the purpose of promotion on the basis of an educational qualification. The Apex Court has recognised that higher academic qualification is at least presumptive evidence for higher mental equipment. The learned Judges observed:
What is relevant is that the object to be achieved here is not a mere pretence 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.
11. D.S. Nakara v. Union of India , states that:
The basic principle which informs both Articles 14 and 16 in equality and inhibition against discrimination. Articles 14 strikes at arbitrariness because any action that is arbitrary must necessarily involve negation of equality. Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons, or things that are grouped together from those that are left out of the group and that differntia must have a rational nexus to the object sought to be acheived by the statute in question.
12. An analysis of the facts in the present case in the light of the principles laid down by the Supreme Court as indicated above would reveal that Rule 14 of the High Court Service Rules prescribes the mode of promotion. Under this rule promotion to category 5 of Assistant Section Officer is either from category 6 of Assistants or from category 7 of Typists/Stenotypists. Readers/Examiners and Typists/Stenotypists arc different categories and each category is a separate approach of sources. Duties and responsibilities of Readers/Examiners are not the same as those of Typists/Stenotypists while so there is no substance in the grievance of the appellants, that the rule providing for the degree qualification for promotion to the higher category is arbitrary. Simply because particular category can be promoted to next higher category without degree qualification, appellants also cannot claim the same as a matter of privilege.
13. We have also to bear in mind that Typists/Stenotypists possess technical qualification. So it is not known how the appellants can claim parity with them and such privileges given to the latter. Further, it is not as if any Typist/Stenotypist with degree qualification can be promoted as Assistant Section Officer in category 5. As per the second proviso to Rule 6(C)(2) extracted above they have to pass certain departmental tests and put in a particular period of service in order to qualify themselves for promotion to the next higher category. Article 14 of the Constitution is infringed when a difference is created by a rule where there is none and also when a difference is created when there is no difference. The rule of equality means that equals have to be treated as equals. The present is not one involving equals.
14. Learned Government Pleader also brought to our notice that the appellants were not appointed temporarily under Rule 15(a) of the High Court Service Rules as Readers/Examiners. There is a provision under Rule 3(4) of Civil Rules of Practice and Ciruclar Orders, Volume I relating to Copyist Establishment of District Courts, City Civil Court and Small Causes Court, for making temporary appointments of Copyists/Readers/ Examiners. This rule was also made applicable to the Copyists Establishment of the High Court under Rule 21 at page 145 of the Civil Rules of Practice and Circular Orders, Volume I (1941 Edition). By exercising the powers conferred by the said rules, temporary appointments of Copyists/Readers/Examiners were made from time to time in view of the urgency involved in the matter of preparation of the records. Since these appointments were terminated once in three months under the above rule and reappointed thereafter, their services could not be regularised. In view of the increase in the work, which was constant, employment of Copyists/Readers/Examiners on permanent basis was considered necessary. Therefore, Government, was addressed for sanction of additional staff and in its G.O. No. 302, Home Department, dated 6.2.1980, the Government has sanctioned 30 posts of copyists and 20 posts of Readers/Examiners. In G.O. No. 2925, Home Department, dated 28.10.1980 Government has sanctioned 23 posts of copyists and 16 posts of Readers/Examiners. Thus the services of the present appellants were regularised in the sanctioned posts. The Rules of the High Court service have been framed by the Hon'ble Chief Justice in exercise of powers conferred by Article 229(1) and (2) of the Constitution of India. The services of the appellants in the High Court services commenced only from the date of their regular appointment. As such they were not eligible for promotion to the posts of Assistants even while they entered service and so they cannot entertain any grievance now in prescribing degree qualification for the posts of Assistant by the rule making authority. In fact the requirement of degree qualification has been prescribed considering the present day standard of education and the fact that a large number of graduates remain unemployed. On the other hand continuation of the minimum general education qualification alone for the post of Assistants will amount to ignoring the reality of the situation in the country.
15. Thiru Vijayanarayanan finally submitted that most of the appellants have been working for over 10 years and there are absolutely no promotion prospects in as much as they have not acquired the degree qualification. In the evening of their official career, they would find it extremely difficult to acquire a degree in any of the Universities in India. However, the hardship caused to the appellants in view of the amended rule cannot be a ground to declare the same as violative of Articles 14 and 16 when the object of the new provision is the efficiency in administration. So we find no merit in this appeal.
16. In the result, the appeal is dismissed. No costs.