Madhya Pradesh High Court
Ajit Kumar Singh vs M.P. Electricity Board And Ors. on 9 January, 2003
Equivalent citations: 2003(3)MPHT83
Author: Rajendra Menon
Bench: Rajendra Menon
ORDER Rajendra Menon, J.
1. The petitioner who is working as Junior Engineer in the services of the respondent/Board, feeling aggrieved by the action of the Board in promoting his juniors, respondent Nos. 3 to 5 to the post of Assistant Engineer, has filed the present petition. It is the case, of petitioner that he is a qualified Graduate Engineer and' after passing the Bachelor of Engineer in the discipline of Electrical Engineering, and on the basis of the aforesaid qualification was granted appointment in the Board as Junior Engineer. The petitioner was appointed earlier in point of time and respondent Nos. 3, 4 and 5 were admittedly juniors to him as they have been appointed as Junior Engineers subsequent to his appointment on the said post. The aforesaid factual aspect of the matter is not in dispute between the parties. According to the petitioner, in the establishment of respondent/Board, Junior Engineers are appointed on the basis of qualifications acquired by them, both Diploma holders and Degree holders are appointed to the said post. It is the case of petitioner that he was a qualified degree holder and was appointed to the post of Junior Engineer after he had acquired the degree. In fact, prior to appointment, he had obtained the degree whereas the respondent Nos. 3 to 5 are diploma holders and while in service with the respondent/Board, they had obtained the degree. According to the petitioner, as per the circulars dated 26-8-1988, 1-3-1993 and 7-6-1989 as contained in Annexures P-7, P-8 and P-9 respectively, the Board had taken a decision that Junior Engineers who passed degree while in service shall be entitled to promotion to the post of Assistant Engineer. It is the case of petitioner that persons like the petitioner who had obtained the degree in Engineer even prior to their appointment and the diploma holders were considered as one class for the purpose of promotion to the next higher post of Assistant Engineer. It is the grievance of petitioner that in the year 1999 vide Annexure P-10, dated 30-11-1999, respondent Nos. 3 to 5 were promoted as Assistant Engineer as a result the petitioner, even though senior to them has not been promoted. On the petitioner submitting necessary representation, it has been informed by the Board that as a policy decision, the Board has decided that such of the Junior Engineers who had acquired the Degree in Engineering while in service shall be granted preference than the persons like petitioner who had obtained the degree before entering into service. As the respondent Nos. 3 to 5 had obtained the Degree in Engineering while they were in service, the said benefit has been extended to them and the petitioner who is already a Graduate Engineer before appointment as Junior Engineer cannot be granted the aforesaid benefit. This policy of the Board has been challenged and it is contended by the petitioner that once the petitioner and respondent Nos. 3 and 5 were appointed as Junior Engineer, they all fall under one homogenous class and no further classification in the same cadre is permissible and cannot be done, the action of the Board is discriminatory and violation of Articles 14 and 16 of the Constitution. It is argued that no nexus is established for the purpose of making such a classification in a homogenous group or grade, and therefore, the promotion of respondent Nos. 3 and 5 are challenged on the ground of being arbitrary and in violation of Articles 14 and 16 of the Constitution.
2. The respondent/Board has filed a return and even though in the return it was admitted that earlier the Board had promoted the Junior Engineers like petitioners acquiring qualification prior to ntering into the service along with diploma holders to the post of Assistant Engineer but when direct recruitment was not being made to the post of Assistant Engineer, it was found that the number of Junior Engineers who are already in service of the Board are not getting proper incentive and with a view to give incentive to such diploma holders who acquire the higher qualification of Degree in Engineering, a policy decision was taken in the meeting held by the Board on 24-5-1999 wherein it was decided that a separate quota should be fixed for such of the Junior Engineers who acquire the degree in engineering while in service and till such time that such quota is fixed, a decision was taken to give preference in promotion/appointment to the post of Assistant Engineer to such of the Junior Engineers who were diploma holders and who had acquired the degree in engineering while in service and had completed 4 years of continuous service as Junior Engineer. It is argued by the learned Counsel for the Board that this policy decision was taken for the purpose of giving incentives to diploma holder Junior Engineers to acquire higher qualification while in service of the Board, therefore, it is submitted that there is no discrimination in the matter.
3. Referring to the proceedings of the meeting of the Board as contained in Annexure R-8, dated 24-5-1999, Shri Vivek Jain, learned Counsel appearing for the Board has emphasised that as the purpose of the said policy is to give incentives to the diploma holder Junior Engineers to acquire higher qualification while in service, in that view of the matter the petitioner cannot complain of discrimination. It is submitted by him that Junior Engineers who acquired the higher qualification while in service form a different class and if some benefit is granted to them by way of promotion to the next higher post, the same cannot be said to be illegal or unjustified warranting interference by this Court.
4. In support of his contention, Shri Vivek Jain, learned Counsel for the Board has placed reliance on the decisions of the Supreme Court in the case of T.R. Kothandaraman and Ors. v. Tamil Nadu Water Supply & Drainage BD and Ors., (1994) 6 SCC 282, and Kuldeep Kumar Gupta and Ors. v. H.P. State Electricity Board and Ors., (2001) 1 SCC 495.
5. Shri R.D. Jain, learned Senior Counsel appearing for the petitioner has contended that the aforesaid policy is highly discriminatory and classification within a group is not permissible. Referring to the judgments referred by Shri Vivek Jain, learned Counsel for the Board, it is argued by Shri Jain, learned Senior Counsel that these judgments itself provide that such a classification is not permissible. Apart from the aforesaid, placing reliance on a judgment of the Supreme Court in the case of Food Corporation of India and Ors. v. Om Prakash Sharma and Ors., (1998) 7 SCC 676, it is argued that classification based on education qualification is permissible. But in the present case, the petitioner and the respondent Nos. 3 to 5 held that identical qualification and it is not the case of respondent/Board that the respondent Nos. 3 to 5 are highly qualified than the petitioner. Referring to the aforesaid judgment, it is argued by him that the classification of such nature is permissible if the nexus for such a classification is to ensure higher efficiency in the . promoted post. Learned Senior Counsel appearing for the petitioner has argued that once the qualification of the incumbents to a post are identical, there is no question of getting higher efficiency in service in the promoted post by the juniors to the petitioner. Considering the aforesaid, it is argued by him that it is a case where the respondent/Board has acted in violation of Articles 14 and 16 of the Constitution, and therefore, promotion of the petitioner should have also been considered with effect from the date when the respondent Nos. 3 to 5 have been promoted to the post of Assistant Engineer.
6. I have heard the learned Counsel for the parties.
7. The question of classification of employees in a homogenous category and fixing of quota in promotion has been subject-matter in various cases. Initially, in the case of Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889, the Supreme Court had held that once persons are classified into a homogenous category, no further classification in the same category is permissible for the purpose of making further promotion. Persons in the same category classified together are to be treated alike in the matter of promotion. However, for the first time, a deviation from the aforesaid legal position was made in the case of The State of Jammu and Kashmir v. Shri Triloki Nath Khosa and Ors., (1974) 1 SCC 19, and the Supreme Court in the aforesaid case held that even in the matter of promotion when there is an integrated common class, based on higher qualification or on the basis of education qualification, further classification is permissible. However, it has been emphasised that such classification in the feeder category when challenged on the ground of discrimination, the Court has to see as to what is the nexus which is to be achieved by such classification. From the aforesaid, it is clear that after the judgment of the Supreme court in the case of Shri Triloki Nath Khosa and others (supra), even though, further classification in a particular category is said to be permissible but the same has to be on reasonable basis and should bear nexus with the object to be achieved by such classification and purpose thereof has to be considered by the Court. This Court has to be satisfied that the consideration for such classification is required for proper and effective discharge of duties by the persons to be promoted. Viewed in the light of the aforesaid, in the present case, the singular reason given for such a classification is to give incentives to the diploma holder engineers to acquire the degree in engineering while in service. Apart from this, there is no reason given in the return by the respondent/Board for the purpose of making such a classification.
8. While considering the aforesaid question, in the case of Kuldeep Kumar Gupta and others (supra), the earlier judgments of the Supreme Court in the case of Roshan Lal Tandon and Shri Triloki Nath Khosa and others (supra) were considered and it has been observed by the Supreme Court in Paragraph 5 of the aforesaid judgment as under :--
"...... So far as the first question is concerned, it is no doubt true that in earlier decisions of this Court in Roshan Lal Tandon and Mervyn Continho v. Collector of Customs, AIR 1967 SC 52, this Court has held that once the direct recruits and promotes were absorbed in one cadre, they form one class and they could not be discriminated against, for the purpose of further promotion to the higher grade. But this view has not been found favour with in the later Constitution Bench decision in Triloki Nath Khosa (supra). It has been laid down in the aforesaid case that even where direct recruits and promotes are integrated into a common class, they could, for the purpose of promotion to the higher cadre be classified on the basis of educational qualification. It was held by this Court in Triloki Nath (supra) that classification in matters of promotion with academic or technical qualification as a basis is a matter of legislative determination and such a classification is permissible unless it is found to be unjust on the face of it and the onus lies upon the party attacking the classification to show by pleadings the necessary material before the Court that the said classification is unreasonable and violative of Article 16. It is in that context the Court further observed that discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis and that being the position, it would be for the party assailing such classification to establish that the classification is unreasonable and bears no rational nexus with its purported object. In the absence of furnishing necessary particulars, it must be construed that the plea of unlawful discrimination had no basis. In Triloki Nath (supra) a word of caution has been indicated that the right to classify is hedged in with salient restraints. Classification must be truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved and judicial scrutiny extends only to the consideration whether the classification rests on a reasonable basis and whether it bears a nexus with the object in view....."
9. From the aforesaid, even though the Supreme Court in the case of Triloki Nath Khosa (supra) had indicated that fixation of quota on the basis of qualification for the same cadre is permissible but it has been held that when such a classification is challenged as discriminatory, the employer has to establish that the aforesaid classification on the basis of qualification is just and fair. In the present case, it is not a classification based on difference in qualification, as both petitioner and respondent Nos. 3 to 5 are having the same qualification which if viewed in the light of the observations made by the Supreme Court referred to hereinabove cannot be said to be justified, as not only quota has been fixed for the diploma holders but once they acquire degree in engineering the qualification of both these classes become equal.
10. In view of the above, it is clear that even for making further classification, the reason for such a classification and the object to be achieved therein has to be reasonable and germane. Even though classification is permissible but the reasons for classification has to pass the test of Articles 14 and 16 of the Constitution. In the case of Food Corporation of India and others (supra), the Supreme Court has held that classification on the basis of higher educational qualification is permissible but the nexus to be achieved by such classification should be higher efficiency in the promoted post.
11. In the present case, it is not the contention of the Board that persons like respondent Nos. 3 to 5 who acquired the degree in engineering while in service are more qualified or have higher qualification than the persons like the petitioner. As far as the qualification is concerned, there is no dispute that both classes of employees, i.e., diploma holder junior engineers acquiring qualification of degree while in service and graduate engineers appointed as Junior Engineers are holding similar and identical qualification. The reason given by the Board, i.e., incentive to diploma holders to acquire higher qualification cannot be a ground for giving out of turn promotion to one set of employees adversely affecting the career and further prospects of other set of similarly situated category of engineers.
12. In the opinion of this Court, the aforesaid reason does not seem to be just, fair and reasonable so as to qualify the test laid down in Articles 14 and 16 of the Constitution, viewed in the light of the cases referred to hereinabove. Grant of incentive is permissible if granting such an incentive has no consequential result of depriving senior employees from their right of consideration to the next higher post, they are required to work under a junior employee who has been promoted superseding their claim. This, clearly hits Articles 14 and 16 of the Constitution. Incentives can be granted in such a manner that the career prospects and rights of the senior employees are not adversely affected. If the right of an employee, like the petitioner who is identical in all respects to the respondent Nos. 3 to 5 as far as service experience and qualification are concerned, is being adversely affected by the grant of such incentive, this Court cannot accord its stamp of approval to such a policy which is in total disregard and violation of Articles 14 and 16 of the Constitution.
13. Considering the case in hand in the light of the law laid down in the cases referred to hereinabove. In my opinion, the classification being introduced by the respondent/Board in the present case is clearly unsustainable, and therefore, action of the respondent/Board in not considering the case of the petitioner for promotion to the post of Assistant Engineer while considering the case of the respondent Nos. 3 to 5 is unsustainable.
14. Accordingly, the petition is allowed. The respondent/Board is directed to consider the case of the petitioner for promotion to the post of Assistant Engineer with effect from the date when such promotions were granted to the respondent Nos. 3 to 5, and if otherwise found suitable for promotion in accordance with law and rules for the same and grant the benefit of promotion in the manner indicated hereinabove.
15. Petition is allowed and disposed of.