Allahabad High Court
Dinesh Kant Srivastava S/O Uma Kant ... vs State Of U.P. Through Principal ... on 26 April, 2006
Bench: V.M. Sahai, Sabhajeet Yadav
JUDGMENT
V.M. Sahai and Sabhajeet Yadav, JJ.
1. By this petition the petitioner has challenged the validity of proviso to Rule 5 of the U.P. Land Development and Water Resources Department Group 'A' Service Rules, 2003 (hereinafter referred to as the 2003 Rules) as amended by Notification dated 21.11.2005 contained in Annexure 4-A to the writ petition and sought relief to declare the aforesaid provisions as null and void, being ultra-vires the provisions of equality clause of the constitution. Further relief of mandamus was sought for commanding the respondent to finalise all promotions from Group 'B' to Group 'A' service as also for promotions in Group 'A' itself ignoring the proviso to Rule 5 of 2003 Rules as amended by Notification dated 21.11.2005.
2. The relief sought in the writ petition rests on the allegations that the petitioner was initially appointed as Overseer in Sharda Sahayak Command Project by order dated 17.2.1979 issued by Deputy Director of Agriculture Soil Conservation Sharda Sahayak Command Project Varanasi, in pursuance thereto he joined the post on 19.12.1979 and since then he is in continuous service. The post of Overseer has been subsequently re-designated as post of Junior Engineer, thereafter, the petitioner was promoted on the post of Soil Conservation Officer vide order dated 11.8.1994 passed by State Government w.e.f. 30.3.1988 i.e. the date from which the person immediately junior to the petitioner were promoted on the post. Subsequently on 23.12.2004 the petitioner's services were regularised on the post of Soil Conservation Officer in accordance with the provisions of U.P. Regularisation of adhoc promotion (On post outside the purview of Public Service Commission) Rules, 1988 as amended on 20.12.2001 by the (Ist Amendment) Rules 2001. The aforesaid regularisation was effected from 30.3.1988. It is stated that recruitment to the post of soil conservation Officer, is governed by the rule known as The Command Area Project - Bhoomi Sanrakshan Adhikari and Technical Officer Service Rules 1993 (Annexure 3 to the writ petition) (herein after referred to as 1993 Rules). The status of service of the members of Command Area Project - Bhoomi Sanrakshan Adhikari and Technical Officer Service is of holder of a group 'B' post, which comprises the post of Soil Conservation Officer and Technical Officer. Under Rule 5 of 1993 Rules, the post of Soil Conservation Officer and Technical Officer are to be filled up by promotion from amongst the substantively appointed Junior Engineer and Technical Assistant who have completed 7 years of service on the Ist day of the year of recruitment. However, 10 percent post of total strength of Cadre reserved for substantively appointed Junior Engineers and Technical Assistants who possess Bachelor Degree in Agriculture or Civil Engineering.
3. For the post of Soil Conservation Officer and Technical Officer the next promotion is available to the post of Deputy Director and Project Officer both of which are in Group 'A' service. The recruitment to the post of Deputy Director or Project Officer is governed by a set of rules known as The Uttar Pradesh Land Development and Water Resources Department (Group 'A') Service Rules, 2003 (Annexure 4 to the writ petition). Under Rule 5 of 2003 Rules, the recruitment to the post of Deputy Director and Project Officer are made only by way of promotion from amongst the substantively appointed Soil Conservation Officer and Technical Officer belonging to the Command Area Project - Bhoomi Sanrakshan Adhikari and Technical Officer Service who have completed 7 years of service. However, the proviso to Rule 5 of 2003 Rules provides that 10 percent of total strength of cadre of Deputy Director and Project Officer would be filled up by grant of promotion to such Soil Conservation Officer who belongs to Command Area Project - Bhoomi Sanrakshan Adhikari and Technical Officer Service and possess bachelor degree in Agronomy or Agriculture/civil/Mechanical Engineering and have completed 7 years of service. By means of a further amendment it is provided that the recruitment to the post of Joint Director Agriculture is to be made from amongst the Deputy Director/Project Officer of U.P. Land Development and Water Resources Department Group 'A' service. The aforesaid provisions were made applicable vide Notification dated 21.11.2005 whereby the earlier existing Rule 4, 5 and 13 of 2003 Rules have been amended by U.P. Land Development and Water Resources Department Group 'A' service (1st amendment Rules) 2005 (Annexure 4-A to the writ petition) (herein after referred to as the amended Rules -2005).
4. Feeling aggrieved by the prescription of 10% separate quota for promotion to Group 'A' service in favour of persons of the Command Area - Project and Bhoomi Sanrakshan Adhikari and technical officers service i.e. Group 'B' service possessing bachelor degree in Agronomy or bachelor degree in Agriculture/civil/Mechanical Engineering, the petitioner has filed the above noted writ petition.
5. We have heard Sri Ashok Khare, learned Senior counsel assisted by Sri Aditya Kumar Singh for the petitioner and Sri Sheo Nath Singh, learned Addl. Chief Standing counsel appearing for the respondents.
6. The thrust of the submission of the learned Counsel for the petitioner in nutshell against the prescription of 10% separate quota for promotion to the post of Group 'A' services for Engineering Graduates or Graduate with Agronomy as subject is that all persons recruited to the Command Area Project - Bhoomi Sanrakshan Adhikari and Technical Officer Service stands on same footing and it is impermissible for the State Government thereafter to classify them on the basis of Educational qualifications alone in making further promotion on the next higher post, by proviso to Rule 5 of Rule 2003 continued by Notification dated 21.11.2005 through amended Rules 2005 and such classification is wholly unjustified and has no correlation whatsoever with any particular objective sought to be achieved, thus same is wholly arbitrary, discriminatory, irrational and violative of Article 14 of the Constitution of India. In order to substantiate his arguments learned Counsel for the petitioner strenuously urged that the Junior Engineers/Technical Assistants who possess the bachelor degree in agriculture/civil Engineering have already received accelerated promotion to the post of Soil Conservation Officer and Technical Officer by virtue of proviso to Rule 5 of 1993 Rules. Having received such accelerated promotion to the post of Soil Conservation Officer and Technical Officer there exists no justification for further proviso of accelerated promotion on the basis of such degree to Group 'A' service. The enlargement effected by proviso to Rule 5 of 2003 Rules as amended in the year 2005 by including therein the bachelor degree in Agronomy as also bachelor degree of Mechanical Engineering is wholly irrational and unjustified. He further urged that insisting upon a position of better qualification at the stage of direct recruitment may be justified but there exists no justification for the same for insisting upon such qualification to be possessed by persons who are already in the service as such better qualification would stand substituted by length of service rendered in the department.
7. The learned Counsel for the petitioner has further submitted that a person recruited as Junior Engineer or as a Technical Assistant becomes eligible for promotion to the post of Soil Conservation Officer and Technical Officer only after being substantively appointed thereto and have put in 7 years length of service. Similarly Soil Conservation Officer and Technical Officer becomes eligible for promotion to Group 'A' service after having been substantively appointed as Soil Conservation Officer and Technical Officer and have completed 7 years length of service as such. Thus a minimum length of service to be performed by a person for consideration for promotion to the post of Deputy director/Project Officer is 14 years in the department. In view of such minimum requirement of 14 years length of service of working in the department, eligibility of consideration for promotion to the post of Deputy Director/Project Officer, there exists no justification or undue stress upon a bachelor degree in Agronomy or a bachelor degree in Agriculture/Civil/Mechanical Engineering. The experience gained over 14 years of working would substitute enough for insisting upon such degree. In support of his said submissions, learned Counsel for the petitioner has placed strong reliance on a decision rendered by a Division Bench of this Court in the case of Aruvendra Kumar Garg and Ors. v. State of U.P. and Ors. 2002 (2) E.S.C. (Ald) 148 and on a decision rendered by Hon'ble Apex Court in Mohd. Shujat Ali v. Union of India .
8. Having heard learned Counsel for the parties and on perusal of records the questions arise for consideration are as to whether prescription of 10% separate quota for promotion to Group 'A" service from amongst the persons belonging to the Command Area Project Bhumi Sanrakshan Adhikari & Technical Officers Service possessing Bachelor's degree in Agronomy or Agriculture/Civil/Mechanical Engineering based on better educational qualification can form a valid basis for classification or not? And providing a separate quota in promotional cadre in favour of degree holders besides their being otherwise also eligible for promotion along with diploma holders or non-degree holders whether can be said to be reservation in promotion and as such can it be violative of Article 16(4) of the Constitution?
9. To better appreciate the question in controversy involved in the case it is necessary to extract the provisions of Rule 4, 5 and 13 of 1993 Rules and Rule 4, 5 and 13 of 2003 Rules inasmuch as Amendment introduced in Rules 2003 by Notification dated 21st November 2005 through Amendment Rules 2005, contained in Annexures-3,4 and 4-A respectively of the writ petition are as under:
The Command Area Project - Bhoomi Sanrakshan Adhikari & Technical Officer Service Rules 1993:
Part-II Cadre Cadre of Service 4. (1) The strength of Service and of each category of posts therein shall be such as may be determined by the Government from time to time.
(2) The strength of the Service and of each category of posts therein shall, until orders varying the same are passed under Sub-rule (1) be, as given below:-
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Serial Name of Post Number of post Number Permanent Temporary Total
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1 2 3A 3B 3C
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1 Bhumi Sanrakshan Adhikari - 70 70 2 Technical Officer - 10 10
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Provided that -
(i) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation ; or
(ii) the Governor may create such additional permanent or temporary posts from time to time as he may consider proper.
Part-II Recruitment Source of Recruitment 5. Recruitment to the post of Bhumi Sanrakshan Adhikari and Technical Officer shall be made by promotion from amongst substantively appointed Junior Engineers and Technical Assistants who have completed seven years service, as such, on the first day of the year of recruitment :-Provided that ten percent posts of the total strength of the cadre shall be filled from amongst such substantively appointed Junior Engineers and Technical Assistants who possess Bachelor's degree in Agriculture or Civil Engineering from an institution recognised by the Government:
Provided further that if suitable candidates are not available for promotion, posts in the cadre may be filled by transfer of persons from other Government departments.
Part-VI-Pay Etc. Scales of Pay 13. (1) The scales of pay admissible to persons appointed to the various categories of posts in the Service -whether in a Substantive or officiating capacity or as a temporary measure shall be such as may be determined by the Government from time to time.
(2) The scales of the pay at the time of commencement of these rules are as follows:-
Name of Post Scale of Pay
1. Bhumi Sanrakshan Rs. 2200-75-2800-EB-100-4000
Adhikari
2. Technical Officer Do
The Uttar Pradesh Land Development And Water Resources Department
(Group 'A') Service Rules 2003
Part-II Cadre
Cadre of Service 4. (1) The strength of the service and of each category of posts therein shall be such as may be determined by the Government from time to time.
(2) The strength of the service and of each category of posts therein shall, until orders varying the same are passed under Sub-rule (1), be as given below:
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Serial Name of Post Number of Posts No. Permanent Temporary Total
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1 2 3 4 5
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1. Deputy Director - 17 17
2. Project Officer - 05 05
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Provided that :-
(i) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post, without thereby entitling any person to compensation, or
(ii) the Governor may create such additional permanent or temporary posts as he may consider proper.
Part-III Recruitment Source of recruitment 5. Recruitment to the posts of Deputy Director and Project Officer in the service shall be made by promotion through the Selection Committee from amongst substantively appointed Bhumi Sanrakshan Adhikari and Technical Officers who belong to the command Area Project Bhumi Sanrakshan Adhikari and Technical Officer Service and who have completed seven years service as such on the first day of the year of recruitment. Provided that ten percent posts of the total strength of the cadre shall be filled from amongst such substantively appointed Bhumi Sanrakshan Adhikari who belong to the Command Area Project Bhumi Sanrakshan Adhikari and Technical Officer Service and who possess Bachelors, degree in Agronomy, Agriculture Engineering, Civil Engineering or Mechanical Engineering from an Institution recognised by the Government and who have completed seven years service as such on the first day of the year of recruitment.
Part-VI Pay Etc. Scales of Pay 13. (1) The scales of pay admissible to persons appointed to the various categories of posts in the service, shall be such as may be determined by Government from time to time.
(2) The scales of pay at the time of the commencement of these rules are given as follows:
Name of Post Scales of Pay 1. Deputy Director Rs. 10,000 - 325-15,200 2. Project Officer Rs. 10,000 - 325-15,200 mRrj izns'k ljdkj Hkwfe fodkl ,oa ty lalk/ku foHkkx ¼vuqHkkx&2½ la[;k % 3448@ 54&2&2005&9¼17½@ 2002 y[kuÅ] fnukad 21 uoEcj] 2005 vf/klwpuk izdh.kZ
lafo/kku ds vuqPNsn 309 ds ijUrqd }kjk iznRr 'kfDr dk iz;ksx djds jkT;iky] mRrj izns'k Hkwfe fodkl vkSj ty lalk/ku foHkkx ¼lewg ^d*½ lsok fu;ekoyh dks la'kksf/kr djus dh n`f"V ls fuEufyf[kr fu;ekoyh cukrs gS% mRrj izns'k Hkwfe fodkl vkSj ty lalk/ku foHkkx ¼lewg ^d*½ lsok ¼izFke la'kks/ku½ fu;ekoyh] 2005 laf{kIr uke vkSj izkjEHk 1- ¼1½ ;g fu;ekoyh mRrj izns'k Hkwfe fodkl vkSj ty lalk/ku foHkkx ¼lewg ^d*½ lsok ¼izFke la'kks/ku½ fu;ekoyh] 2005 dgha tk;sxhA ;g rqjUr izo`Rr gksxhA fu;e 4 dk la'kks/ku 2- mRrj izns'k Hkwfe fodkl vkSj ty lalk/ku foHkkx ¼lewg ^d*½ lsok fu;ekoyh] 2003 esa] ftls vkxs mDr fu;ekoyh dgk x;k x;k gS] fu;e 4 esa] uhps LrEHk&1 esa fn;s x;s fo|eku mi fu;e ¼2½ ds LFkku ij LrEHk&2 esa fn;k x;k mi fu;e j[k fn;k tk;sxk] vFkkZr%& LrEHk&1 LrEHk&2 fo|eku mi fu;e ,rn~}kjk izfrLFkkfir mi fu;e ¼2½ tc rd fd mi fu;e ¼1½ ds ¼2½ tc rd fd mi fu;e ¼1½ ds v/khu v/khu ifjorZu djus ds vkns'k u ifjorZu djus ds vkns'k u fn;s tk;] lsok fn;s tk;] lsok dh lnL; la[;k dh lnL; la[;k vkSj mlesa izR;sd Js.kh ds vkSj mlesa izR;sd Js.kh ds inksa dh inksa dh la[;k mruh gksxh ftruh uhps nh x;h gS%& la[;k mruh gksxh ftruh uhps ifjf'k"V esa nh x;h gS%& dz-la- in dk uke inksa dh la[;k dz-la- in dk uke inksa dh la[;k LFkk;h vLFkk;h ;ksx LFkk;h vLFkk;h ;ksx 1 2 3 4 5 1 2 3 4 5 1- mifuns'kd & 17 17 1- la;qDr funs'kd] d`f"k& 3 3 2- ifj;kstuk vf/kdkjh& 05 05 2- mifuns'kd & 17 17 3- ifj;kstuk vf/kdkjh & 5 5 ijUrq%& ijUrqd%& ¼,d½ fu;qfDr izkf/kdkjh fdlh fjDr in ¼,d½ fu;qfDr izkf/kdkjh fdlh fjDr in dks fcuk Hkjs gq, NksM+ ldrk gS] ;k dk fcuk Hkjs gq, NksM+ ldrk gS] ;k jkT;iky mls vkLFkfxr j[k ldrs gSa] jkT;iky mls vkLFkfxr j[k ldrs gSa] ftlls dksbZ dksbZ O;fDr izfrdj dk ftlls dksbZ dksbZ O;fDr izfrdj dk gdnkj u gksxk] ;k gdnkj u gksxk] ;k ¼nks½ jkT;iky ,sls vfrfjDr LFkk;h ;k ¼nks½ jkT;iky ,sls vfrfjDr LFkk;h ;k vLFkk;h inksa dk l`tu dj lds gSa] vLFkk;h inksa dk l`tu dj lds gSa] ftUgsa og mfpr le>saA ftUgsa og mfpr le>saA fu;e 5 dk izfrLFkkiu mDr fu;ekoyh esa] uhps LrEHk &1 esa fn;s x;s fo|eku fu;e 5 ds LFkku ij LrEHk &2 esa fn;k x;k fu;e j[k fn;k tk;sxk] vFkkZr%& LrEHk&1 LrEHk&2 5&HkrhZ dk lzksr fo|eku fu;e 5&HkrhZ dk lzksr ,rn~}kjk izfrLFkkfir fu;e lsok esa mifuns'kd vkSj ifj;kstuk lsok esa fofHkUu Jsf.k;ksa ds inksa ij HkrhZ vf/kdkjh ds inksa ij HkrhZ ekSfyd :i ls fuEufyf[kr lzksrksa ls dh tk;sxh%& fu;qfDr Hkwfe laj{k.k vf/kdkjh vkSj izkfof/kd vf/kdkfj;ksa ls] tks lekns'k {ks= ¼1½ la;qDr funs'kd] d`f"k& ifj;kstuk Hkwfe laj{k.k vf/kdkjh vkSj ekSfyd :i ls fu;qDr mi funs'kdksa vkSj izkfof/kd vf/kdkjh lsok ls lEcaf/kr gksa ifj;ksxtuk vf/kdkfj;ksa esa ls] tks mRrj vkSj ftUgksus HkrhZ ds o"kZ ds izFke fnol izns'k Hkwfe fodkl vkSj ty lalk/ku dks bl :i esa lkr o"kZ dh lsok iwjh foHkkx ¼lewg ^d*½ lsok ls lacaf/kr gksa vkSj dj yh gksa% ftUgksaus HkrhZ ds o"kZ ds izFke fnol dks bl :i esa nks o"kZ dh lsok iwjh dj yh gks] p;u ijUrq lkaoxZ ds dqy lanL; la[;k lfefr ds ek/;e ls inksUufr }kjk A dk nl izfr'kr in ekSfyd :i ls fu;qDr ,sls Hkwfe laj{k.k vf/kdkjh vkSj ¼2½ mi funs'kd vkSj ifj;kstuk vf/kdkjh&ekSfyd :i izkfof/kd vf/kdkfj;ksa ls Hkjh tk;sxh tks ls fu;qDr Hkwfe laj{k.k vf/kdkjh vkSj izkfof/kd lekns'k {ks= ifj;kstuk Hkwfed laj{k.k vf/kdkfj;ksa ls tks lekns'k {ks= ifj;kstuk Hkwfe laj{k.k vf/kdkjh vkSj izkfof/kd vf/kdkjh lsok vf/kdkjh vkSj izkfof/kd vf/kdkjh lsok ls lEcaf/kr gksa ls lEcaf/kr gksa vkSj ftUgksaus ljdkj }kjk vkSj ftUgksus HkrhZ ds o"kZ ds izFke fnol dks bl :i ekU;rk izkIr fdlh laLFkk ls ,xzksukeh esa lkr o"kZ dh lsok iwjh dj yh gks] p;u lfefr ds ekU;rk izkIr fdlh laLFkk ls ,xzksukeh] ek/;e ls inksUufr }kjk% d`f"k vfHk;a=.k] flfoy vfHk;a=.k ;k ijUrq laoxZ ds dqy lnL; la[;k dk eSdsfudy vfHk;a=.k esa Lukrd dh nl izfr'kr in ekSfyd :io ls fu;qDr ,sls Hkwfe laj{k.k mikf/k j[krs gksa vkSj ftUgksus HkrhZ ds vf/kdkjh vkSj izkfof/kd vf/kdkfj;ksa ls Hkjh tk;sxh tks o"kZ ds izFke fnol dks bl :i esa lkr lekns'k {ks= ifj;kstuk Hkwfe laj{k.k vf/kdkjh vksj izkfof/kd o"kZ dh lsok iwjh dj yh gksA vf/kdkjh lsok ls lEcaf/kr gksa vkSj tks ljdkj }kjk ekU;krk izkIr fdlh laLFkk ls ,xzksukeh] d`f"k vfHk;a=.k] flfoy vfHk;a=.k ;k eSdsfudy vfHk;a=.k esa Lukrd dh mikf/k j[krs gksa vkSj ftUgksaus HkrhZ ds o"kZ ds izFke fnol dks bl :i esa lkr o"kZ dh lsok iwjh dj yh gksA fu;e 13 dk la'kks/ku mDr fu;ekoyh esa] fu;e 13 esa] uhps LrEHk & 1 esa fn;s x;s fo|eku mi fu;e ¼2½ ds LFkku ij LrEHk & 2 esa fn;k x;k mi fu;e j[k fn;k tk;sxk] vFkkZr %& LrEHk & 1 LrEHk & 2 fo|eku mi fu;e ,rn~}kjk izfrLFkkfir mi fu;e ¼2½ bl fu;ekoyh ds izkjEHk ds le; ¼2½ mRrj izns'k Hkwfe fodkl vkSj ty lalk/ku osrueku fuEu izdkj fn;s x;s gS%& foHkkx ¼lewg ^d*½ lsok ¼izFke la'kks/ku½ fu;ekoyh] 2005 ds izkjEHk ds le; ds osrueku uhps fn;s x;s gSa%& in dk uke osrueku in dk uke osrueku 1- mi funs'kd 10]000&325 15]200 1- la;qDr funs'kd] 12]000&375&16]500 :0 d`f"k :0 2- ifj;kstuk 10]000&325 15]200 2- mi funs'kd 10]000&325 15]200 vf/kdkjh :0 :0 3- ifj;kstuk 10]000&325 15]200 vf/kdkjh :0 vkKk ls] ¼ts0,l0feJ½ lfpoA
10. Thus from a close analysis of the aforesaid rules, it is clear that under Rule 4 of 1993 Rules the cadre of service consists of two categories of posts namely Bhumi Sanrakshan Adhikari and Technical Officer bearing permanent and temporary posts. Rule 5 of said Rules, provides Source of Recruitment in service. The posts of Bhumi Sanrakshan Adhikari and Technical Officers are liable to be filled up by cent percent promotion from amongst substantively appointed Junior Engineers and Technical Assistants who have completed seven years service as such on the first day of the year of recruitment. A proviso appended to the rule postulates that ten percent posts of the total strength of cadre shall be filled up from amongst such substantively appointed Junior Engineers and Technical Assistants who possess Bachelor's degree in Agriculture or Civil Engineering from an institution recognised by the Government. Not only this, a further proviso is added to the said Rule to the effect that if suitable candidates are not available for promotion, the posts in cadre may be filled by transfer of persons from other Government departments. From perusal of Rule 13 of 1993 Rules it is clear that the pay scale admissible to both the posts i.e. post of Bhumi Sanrakshan Adhikari and Technical Officer is same.
11. Similarly under Rule 4 of 2003 Rules the cadre of service comprise of two categories of posts namely Deputy Director and Project Officer having permanent and temporary posts. Rule 5 of the said Rules stipulates that the recruitment to the post of Deputy Director and Project Officer in service shall be made by promotion from amongst substantively appointed Bhumi Sanrakshan Adhikari and Technical Officers who belong to the Command Area Project Bhiuni Sanrakshan Adhikari and Technical Officer Services and who have completed seven years service as such on the first day of the year of recruitment. A proviso has been appended to the rule to the effect that ten percent posts of the total strength of cadre shall be filled from amongst such substantively appointed Bhumi Sanrakshan Adhikari who belong to the Command Area Project Bhumi Sanrakshan Adhikari and Technical officer Services who possess Bachelors degree in Agronomy, Agriculture Engineering, Civil Engineering or Mechanical Engineering from an institution recognised by Government and who have completed seven years service as such on the first day of the year of recruitment. Under Rule 13 of the Rules 2003 the pay scale of Deputy Director and Project Officer as determined by the Government at the time of framing rules in question is same. It appears that in this ten percent quota of promotion from Group 'B' services to Group 'A' services referred herein before initially only post of Bhumi Sanrakshan Adhikari was included leaving the post of Technical Officer but later on by amended Rules 2005, the aforesaid post has also been included therein. Under Rule 4 of amended Rules 2005 in the cadre of service a post of Joint Director Agriculture has been added bearing different pay scales from those of Deputy Director and Project Officer. Under Rule 5 of 2005 Rules the post of Joint Director is liable to be filled up from amongst substantively appointed Deputy Directors and Project Officers of Uttar Pradesh Land Development and Water Resources Department Group 'A' Service who have completed two years service as such on the first day of year of recruitment.
12. There appears no dispute regarding the filling up the post of Joint Director Agriculture. The dispute centers round only with regard to the proviso providing ten percent separate quota for promotion to the post in Group 'A' service under Rules 2003 and amended Rules 2005 from amongst the persons belonging to Command Area Project Bhumi Sanrakshan Adhikari and Technical Officer Service who possess Bachelors degree in Agronomy, Agriculture Engineering, Civil Engineering or Mechanical Engineering and have rendered seven years substantive service on the first day of year of recruitment. In other words, 90% posts of Deputy Director and Project Officer are to be filled up from amongst both degree holders and non-degree holders Bhumi Sanrakshan Adhikari and Technical Officers indiscriminately and only, remaining ten percent posts of Deputy Directors and Project Officers are to be filled up from amongst degree holders Bhumi Sanrakshan Adhikari and Technical Officers having satisfied other eligibility criteria under the rules. This ten percent cadre strength in Group 'A' service for degree holders alone appears to be an additional strength besides their routine strength along with non-degree holders. Thus there appears nothing to indicate that degree holders alone are given avenue for promotion in total exclusion of non-degree holders or degree holders are permitted to push down non-degree holders gradually, and whereby there appears any chance of total exclusion of non-degree holders and ultimately their replacement from degree holders, thus it is to be examined that as to whether prescription of such quota for promotion can pass the test of equality concept of the Constitution or not.
13. In this connection it is noteworthy to mention that the aforesaid rules were made under the proviso to Article 309 of the Constitution of India which reads as under:
Article 309 of the Constitution: Recruitment and conditions of service of persons serving the Union or a State.-Subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State;
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor [***] of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.
14. A plain reading of the provisions of Article 309 of the Constitution of India makes it clear that primarily the Legislature i.e. Parliament or State Legislature are empowered to make law regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of Union or the State. The Legislative field referable to this article is the same as is indicated in entry 70 of List I of the Seventh Schedule and entry 41 of List II of that schedule. The proviso, however, gives power to the President or Governor of State to make service rules in this regard but this power under the proviso can be exercised only so long as the Legislature does not make an Act, whereby the provisions pertaining to recruitment to public posts as also conditions of services relating to that post are laid down. In other words, the power to make rules under the proviso to Article 309 of the Constitution can only be exercised by President or Governor where the Legislature has not enacted the law on subject but the same cannot be exercised where the field is already occupied by enactment of appropriate Legislature and in that situation, the rule making power given under the enactment alone can be exercised by that authority, though both may be same, but the jurisdictions are different. The rules made under enactment would be a delegated or subordinate legislation whereas the rules made under the proviso to Article 309 cannot be said to be subordinate Legislation. The Rules made under the proviso of Article 309 are transitory in the sense that Rules are made only when the field is not occupied by the enactment of an appropriate Legislature and it will operate only in the period interregnum, means during the period till the law is enacted by appropriate Legislature. At moment the Legislature intervenes in the matter and enacts the law, the rules made under the proviso will apply subject to the provisions of aforesaid Act.
15. In this connection a reference can be made to the observations of Hon'ble Apex Court in B.S. Vadera and Anr. v. Union of India and Ors. wherein in para 24 of the decision Hon'ble Apex Court observed as under:
24. It is also significant to note that the proviso to Article 309, clearly lays down that any rules so made shall have effect, subject to the provisions of any such Act. The clear and unambiguous expressions, used in the Constitution must be given their full and unrestricted meaning unless hedged-in, by any limitations. The rules, which have to be subject to the provisions of the Constitution, shall have effect 'subject to the provisions of any such Act'. That is, if the appropriate Legislature has passed an Act, under Article 309, the rules, framed under the Proviso, will have effect, subject to that Act; but, in the absence of any Act, of the appropriate Legislature, on the matter, in our opinion, the rules, made by the President, or by such person as he may direct, are to have full effect, both prospectively and retrospectively. Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, unless they can be impeached on grounds such as breach of Part III, or any other Constitutional provision, must be enforced, if made by the appropriate authority.
16. The rule making function under the proviso to Article 309 is legislative function since the provisions of Article 309 are subject to other provisions of the Constitution, it is obvious that, whether it is an Act made by Parliament or State Legislature which lays down rules of recruitment and the conditions of service or it is rule made by the President or the Governor under the proviso to that Article they have to be inconformity with other provisions of Constitution specially Article 14, 16, 310 and 311. Although the rules made under the proviso to this Article is transitory in nature but would be at par with the Legislative enactment, thus the validity of such rules can be questioned only on those grounds, which are available to assail the provisions of enactment made by the appropriate Legislature i.e. (i) on the ground of legislative competence and (ii) in violation of the other provisions of the Constitution. Since the petitioner has challenged the validity of rules only on the grounds of its being violative of Article 14 of the Constitution, therefore, our inquiry is to be confined to mat extent only and rules has to be tested on the anvil of Article 14 of the Constitution of India. The rules in question would survive or sustain only when it would pass or withstand or satisfy the test laid down in that Article.
17. At this juncture it is noteworthy to point out that Article 14 of the Constitution of India postulates general concept of equality "before the law" and 'equal protection of all the laws', whereas Article 16 of the Constitution of India specially deals with amplitude of the aforesaid concept in context of matters relating to the employment, therefore, it has to be examined in that context only. In this connection it would be useful to refer some decisions of Hon'ble Apex Court, which have some material bearing on the question in issue involved in the case.
18. In General Manager, Southern Railway and Anr. v. Rangachari , a Constitution Bench of the Hon'ble Apex Court while explaining the ambit and amplitude of phrase "matters relating to employment" as enshrined under Article 16(1) of the Constitution of India in para 14 and 16 of the decision has held as under:
14. Article 16(1) reads thus:
There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
If the words used in the Article are wide in their import they must be liberally construed in all their amplitude. Thus construed it would be clear that matters relating to employment cannot be confined only to the initial matters prior to the act of employment. The narrow construction would confine the application of Article 16(1) to the initial employment and nothing else; but that clearly is only one of the matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation. These are all matters relating to employment and they are, and must be, deemed to be included in the expression "matters relating to employment" in Article 16(1). What Article 16(1) guarantees is equality of opportunity to all citizens in respect of all the matters relating to employment illustrated by us as well as to an appointment to any office as explained by us.
16. If the narrow construction of the expression "matters relating to employment" is accepted, it would make the fundamental right guaranteed by Article 16(1) illusory. In that case it would be open to the State to comply with the formal requirements of Article 16(1) by affording equality of opportunity to all citizens in the matter of initial employment and then to defeat its very aim and object by introducing discriminatory provisions in respect of employees soon after their employment. Would it, for instance, be open to the State to prescribe different scales of salary for the same or similar posts, different terms of leave or superannuation for the same or similar posts? On the narrow construction of Article 16(1), even if such a discriminatory course is adopted by the State in respect of its employees that would not be violative of the equality of opportunity guaranteed by An. 15(1). Such a result could not obviously have been intended by the Constitution. In this connection it may be relevant to remember that Article 16(1) and (2) really give effect to the equality before law guaranteed by An. 14 and to the prohibition of discrimination guaranteed by Article 15(1). The three provisions form pan of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment.
19. In Govind Dattatray Kelkar and Ors. v. Chief Controller of Imports and Exports and Ors. of the decision a Constitution Bench of Hon'ble Apex Court observed as under:
12. The relevant law on the subject is well settled and does not require further elucidation. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion. The concept of equality in the matter of promotion can be predicated only when the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the differences between the said two sources, and the said differences have a reasonable relation to the nature of the office or officers to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification. There can be cases where the differences between the two groups of recruits may not be sufficient to give any preferential treatment to one against the other in the matter of promotions, and, in that event a court may hold that there is no reasonable nexus between the differences and the requirement. In short, -whether there is a reasonable classification or not depends upon the facts of each case and the circumstances obtaining at the time the recruitment is made. Further, when a State makes a classification between two sources of recruitment, unless the classification is unjust on the face of it, the onus lies upon the party attacking the classification to show by placing the necessary material before the court that the said classification is unreasonable and violative of Article 16 of the Constitution: see Banarsidas v. State of Uttar Pradesh ; All India Station Masters' and Assistant Station Masters' Association, Delhi v. General Manager, Central Railways ; and General Manager, Southern Railways v. Rangachari .
20. In State of Mysore and Anr. v. P. Narasinga Rao , a Constitution Bench of Hon'ble Apex Court has held that classification of two grades of tracers based on educational qualification, one group of matriculate tracer with a higher pay scale and other for non-matriculate tracers with a lower pay scale is not violative of Article 14 or Article 16 of the Constitution. For ready reference the observation made in para 4 of the decision is as under:
4. The relevant law on the subject is well settled. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion.... It is true that the selective test adopted by the Government for making two different classes will be violative of Articles 14 and 16 if there is no relevant connection between the test prescribed and the interest of public service. In other words, there must be a reasonable relation of the prescribed test to the suitability of the candidate for the post or for employment to public service as such. The provisions of Article 14 or Article 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. Such qualifications need not he only technical but they can also be general qualifications relating to the suitability of the candidate for public service as such....
...In our opinion, therefore, higher educational qualifications such as success in the S.S.L.C. examination are relevant considerations for fixing a higher pay scale for tracers who have passed the S.S.LC. examination and the classification of two grades of tracers in the new Mysore State, one for matriculate tracers with a higher pay scale and the other for non-matriculate tracers with a lower pay scale is not violative of Articles 14 and 16 of the Constitution.
21. In State of Jammu and Kashmir v. Triloki Nath Khosa and Ors. , a rule which provided that only Degree holders in the cadre of Assistant Engineers shall be entitled to be considered for promotion to the next higher cadre of Executive Engineers and Diploma holders Assistant Engineer shall not be eligible for such promotion was challenged as violative of equal opportunity clause. A Constitution Bench of Hon'ble Apex Court repelled the challenge holding that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for the purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. In para 38, 39,40 and 55 of the decision Hon'ble Apex Court has observed as under:
38. Judicial scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It can not 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 rule-making authority on the need to classify or the desirability of achieving a particular object.
39. 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 un-reasonable basis. The classification, according to the appellant 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 that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. 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.
40. On the facts of the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstances and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. The provision in the 1939 Rules restricting direct recruitment of Assistant Engineers to Engineering graduates, the dearth of graduates in times past and their copious flow in times present are all matters which can legitimately enter the judgment of the rule-making authority. In the light of these facts, that judgment cannot be assailed as capricious or fanciful. Efficiency which comes in the trial of a higher mental equipment can reasonably be attempted to be achieved by restricting promotional opportunity to those possessing higher educational qualifications and we are concerned with the reasonableness of the classification not with the precise accuracy of the decision to classify nor with the question whether the classification is scientific. Such tests have long since been discarded.
55. We are therefore of the opinion that though persons appointed * directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. 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.
22. In Mohammad Shujat Ali and Ors. v. Union of India and Ors. , A Constitution Bench of Hon'ble Apex Court while explaining the equality clause enshrined under Article 14 in matters relating to employment under Article 16(1) of the Constitution in para 26 of the decision has held as under:
26...The fundamental guarantee is of equal protection of the laws and the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to that guarantee by accommodating it with the practical needs of the society and it should not be allowed to submerge and drown the precious guarantee of equality. The doctrine of classification should not be carried to a point where instead of being a useful servant, it becomes a dangerous master, for otherwise, as pointed out by Chandrachud, J., in State of Jammu & Kashmir v. Triloki Nath Khosa "the guarantee of equality mil be submerged in class legislation masquerading as laws meant to govern well-marked classes characterized by different and distinct attainments." Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the guarantee of equality of its spacious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality; the fundamental right to equality before the law and equal protection of the laws may be replaced by the overworked methodology of classification. Our approach to the equal protection clause must, therefore, be guided by the words of caution uttered by Krishna Iyer, J., in :
Mini-classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality.
23. While holding that the educational qualification can form a valid basis for classification in the matters relating to employment, in para 28 of the aforesaid decision, the Hon'ble Apex Court further observed that; but to permit discrimination based on educational attainments not obligated by nature of duties of higher post is to stifle the social thrust of equality clause as under:
28. Now, there are three decisions of this Court where educational qualifications have been recognised as forming a valid basis for classification. In State of Mysore v. Narasing Rao this Court held that higher educational qualifications such as success in S.S.L.C. examination are relevant considerations for fixation of higher pay scale for tracers who have passed the S.S.L.C. examination and the classification of two grades of tracers in Mysore State one for matriculate tracers with higher pay scale and the other for non-matriculate tracers with lower pay scale cannot be said to be violative of Article 14 or 16. So also in Union of India v. Dr. (Mrs.) S.B. Kohli a Central health Service Rule requiring that a Professor in Orthopaedics must have a post-graduate degree in particular specialty was upheld on the ground that the classification made on the basis of such a requirement was not "without reference to the objectives sought to be achieved and there can be no question of discrimination". A very similar question arose in where a rule which provided that only degree holders in the cadre of Assistant Engineers shall be entitled to be considered for promotion to the next higher cadre of Executive Engineers and diploma holders shall not be eligible for such promotion, was challenged as violative of the equal opportunity clause. This Court repelled the challenge holding that "though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for the purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications " and "the rule providing that graduates shall be eligible for such promotion to the exclusion of diploma holders" was not obnoxious to the fundamental guarantee of equality and equal opportunity. But from these decisions it cannot be laid down as an invariable rule that whenever any classification is made on the basis of variant educational qualifications, such classification must be held to be valid, irrespective of the nature and purpose of the classification or the quality and extent of the differences in the educational qualifications. It must be remembered that "life has relations not capable always of division into inflexible compartments ". The moulds expand and shrink. The test of reasonable classification has to be applied in each case on its peculiar facts and circumstances. It may be perfectly legitimate for the administration to say that having regard to the nature of the functions and duties attached to the post, for the purpose of achieving efficiency in public service, only degree holders in engineering shall be eligible for promotion and not diploma or certificate holders. That is what happened in and a somewhat similar position also obtained in . But where graduates and non-graduates are both regarded as fit and, therefore, eligible for promotion, it is difficult to see how, consistently with the claim for equal opportunity, any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over non-graduates in the matter of fixation of such quota. The result affixation of quota of promotion for each of the two categories of Supervisors would be that when a vacancy arises in the post of Assistant Engineer, which, according to the quota is reserved for graduate Supervisors, a non-graduate Supervisor cannot be promoted to that vacancy, even if he is senior to all other graduate Supervisors and more suitable than they. His opportunity for promotion would be limited only to vacancies available for non-graduate Supervisors. That would clearly amount to denial of equal opportunity to him. To permit discrimination based on educational attainments not obligated by the nature of the duties of the higher post is to stifle the social thrust of the equality clause. A rule of promotion which while conceding that non-graduate Supervisors are also fit to be promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion for graduate Supervisors as against non-graduate Supervisors would clearly be calculated to destroy the guarantee of equal opportunity.
24. The Hon'ble Apex Court further observed that:
But even so, we do not think we can be persuaded to strike down the Andhra Pradesh Rules in so far as they make differentiation between graduate and non-graduate Supervisors. This differentiation is not something brought about for the first time by the Andhra Pradesh Rules. It has always been there in the Engineering Services of Hyderabad and the Andhra States. The graduate Supervisors have always been treated as a distinct and separate class from non-graduate Supervisors both under the Hyderabad Rules as well as the Andhra Rules and they have never been integrated into one class. Under the Hyderabad Rules, the pay scale of graduate Supervisors was Rs. 176-300 while that of non-graduate Supervisors was Rs. 140-300 and similarly, under the Andhra Rules the pay scale of non-graduate Supervisors was Rs. 100-250, but graduate Supervisors were started in this pay scale at the stage of Rs. 150/- so that their pay-scale was Rs. 150-250. Graduate Supervisors and non-graduate Supervisors were also treated differently for the purpose of promotion under both sets of Rules. In fact, under the Andhra Rules a different nomenclature of Junior Engineers was given to graduate Supervisors. The same differentiation into two classes also persisted in the reorganized State of Andhra Pradesh. The pay-scale of Junior Engineers was always different from that of non-graduate Supervisors and for the purpose of promotion, the two categories of Supervisors were kept distinct and apart under the Andhra Rules even after the appointed day. The common gradation list of Supervisors finally approved by the Government of India also consisted of two parts, one part relating to Junior Engineers and the other part relating to non-graduate Supervisors. The two categories of Supervisors were thus never fused into one class and no question of unconstitutional discrimination could arise by reason of differential treatment being given to them.
25. Thus from a close analysis of the observations of Hon'ble Court in Rangachari case (Supra), Govind Dattatray Kelkar and Ors. (supra), P. Narsinga Rao (supra), Triloki Nath Khosa (supra) and Mohammad Shujat Ali (supra) it is clear that Article 16 of the Constitution postulates that there shall be equality of opportunity for all citizens in the matter relating to employment or appointment to any office under the state or to promotion from one office to higher office thereunder. Article 16 is only an instance or incident of the guarantee of equality enshrined under Article 14. It effectuates the doctrine of equality in the sphere of public employment running from prior to appointment through promotion and all other incidents of employment including payment of salary and other post retiral benefits of service. However this constitutional code of equality does not mean that same laws must be applicable to all persons, it recognizes doctrine of reasonable classification, which means that legislature may classify for the purpose of legislation, but requires that classification must be reasonable. A reasonable classification is one, which includes all persons or things similarly situated with respect to the purpose of law. There should be no discrimination between one person or thing and another, if as regards the subject matter of legislation their position is substantially the same. The Hon'ble Apex Court has further cautioned that fundamental guarantee is of equal protection of the laws or equality before the law and the doctrine of classification is only subsidiary rule evolved by courts to give a practical content to that guarantee by accommodating it with the practical needs of the society, therefore, it should not be carried to a point where instead of being a useful servant, it become a dangerous master. Therefore, held that mini-classifications based on micro-distinctions would be overdoing and undoing to the equality concept.
26. In P. Narsinga Rao's case (supra) it has been held that educational qualification can form valid basis for classification and higher educational qualifications are relevant considerations for fixation of higher pay scale, similarly in T.N. Khosa's case, it was held that the persons appointed directly and by promotion, although were integrated into common class of Assistant Engineers, but they could for the purpose of promotion to cadre of Executive Engineers be classified on the basis of educational qualification and the Rule providing that the graduate shall be eligible for such promotion to the exclusion of Diploma holder was upheld and it was further held that the classification based on educational qualification with a view to achieve administrative efficiency cannot be said to rests on any fortuitous circumstances, but in Mohd. Shujat Ali's case (supra) Hon'ble Apex Court has held that to permit discrimination based on educational attainments not obligated by nature of duties of the higher post is to stifle the social thrust of the equality concept. It was further observed that a rule of promotion which while conceding that non-graduate supervisors are also fit to be promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion for graduate supervisors as against non-graduate supervisors would clearly be calculated to destroy the guarantee of equal opportunity, even then the Hon'ble Apex Court did not strike down the rule in question so far as they make differentiation between graduate and non-graduate supervisors having regard to the historical background of the rules in question. The Hon'ble Apex Court further observed that this differentiation was not something brought about for the first time by Andhra Pradesh Rules. It has always been there in the Engineering services of the Hyderabad and Andhra States. The graduate supervisors have always been treated as distinct and separate class from non-graduate supervisors both under Hyderabad Rules as well as the Andhra Rules and they have never been integrated into one class. Under Hyderabad Rules the pay scale of graduate supervisors was Rs. 176-300 while that of non-graduate supervisors was Rs. 140-300. Similarly under Andhra Rules the pay scale of non-graduate supervisors was Rs. 100-250 but graduate supervisors were started in the pay scale of Rs. 150/- so that their pay scale was Rs. 150-250 Both the groups of supervisors were also treated differently for the purpose of promotion under both sets of rules.
27. In Roop Chand Adlakha and Ors. v. Delhi Development Authority and Ors. , the rules prescribing different conditions of eligibility for diploma holders and graduates Junior Engineers for promotion to the post of Assistant Engineers and from the cadre of Assistant Engineers to that of Executive Engineers in P.W.D. of Delhi Development Authority was under challenge 50% posts of Assistant Engineers were liable to be filled by direct recruitment and remaining 50% posts from promotion of Junior Engineers out of which 25% from degree holder Junior Engineers having 3 years service experience and 25% from diploma holder Junior Engineers having 8 years service experience The next higher posts of Executive Engineers were purely promotional posts. The graduate Assistant Engineers with 8 years service experience and diploma Assistant Engineers with 10 years service experience-were eligible for promotion. No inter-se quota between two classes of Assistant Engineers was prescribed. The challenge against the rules was repelled by the Hon'ble Apex Court holding the rule valid, based on reasonable classification. While taking note of T.N. Khosa case and Mohd. Shujat Ali case inasmuch as other decisions having material bearing on the issue and explaining the scope of reasonable classification in para 7 of the decision observed as under:
...If the differences in the qualification has a reasonable relation to the nature of duties and responsibilities, that go with and are attendant upon the promotional-post, the more advantageous treatment of those who possess higher technical qualifications can he legitimized on the doctrine of classification. There may, conceivably, he cases where the differences in the educational qualification* may not he sufficient to give any preferential treatment to one class of candidates as against another. Whether the classification is reasonable or not must, therefore, necessarily depend upon facts of each case and the circumstances obtaining at the relevant time. When the state makes a classification between two sources, unless the vice of the classification is writ large on the face of it, the person assailing the classification must show that it is unreasonable and violative of Article 14. A wooden equality as between all classes of employees irrespective of all distinctions or qualifications, or job-requirements is neither constitutionally compelled nor practically meaningful.
This Court in General Manager, South Central Railway v. A.V.R. Siddhanti observed:
A wooden equality us between all classes of Employees regardless of qualifications, kind of jobs, nature of responsibility and performance of the employees is not intended, nor is it practicable if the administration is to run. Indeed, the maintenance of such a 'classless' and undiscerning 'equality' where, in reality, glaring inequalities and intelligible differentia exist, will deprive the guarantee of its practical content. Broad classification based on reason, executive pragmatism and experience having a direct relation with the achievement of efficiency in administration, is permissible....
In T. Devadasan v. Union of India at procedural provision. 689 and 690 : this Court observed:
...What is meant by equality in this Article is, equality amongst equals. It does not provide for an absolute equality of treatment to all persons in utter disregard in every conceivable circumstance of the differences such as age, sex, education and so on and so forth as may be found amongst people in general. Indeed, while the aim of this Article is to ensure that invidious distinction or arbitrary discrimination shall not be made by the State between a citizen and a citizen who answer the same description and the differences which may obtain between them are of no relevance for the purpose of applying a particular law reasonable classification is permissible. It does not mean anything more.
28. In P. Murugesan and Ors. v. State of Tamil Nadu and Ors. , Hon'ble Apex court has up-held the validity of rules prescribing the ratio of 3:1 between graduates and diploma holders in promotion so also the longer qualifying period for service for diploma holders. While taking note of other decisions rendered by Apex Court after aforesaid two constitution Bench decisions in para 14, 15 and 16 of the decision Hon'ble Apex Court observed as under:
14. This decision clearly supports the appellants' contention and goes to sustain the validity of the impugned amendment. If the diploma holders can be barred altogether from promotion, it is difficult to appreciate how and why is the rule-making authority precluded from restricting the promotion. The rule-making authority may be of the opinion, having regard to the efficiency of the administration and other relevant circumstances that while it is not necessary to bar the diploma holders from promotion altogether: their chances of promotion should be restricted. On principle, there is no basis for the contention that only two options are open to a rule making authority-either bar the diploma holders altogether or allow them unrestricted promotion on par with the graduates. This aspect has been emphasized by Venkatachaliah, J. in Roop Chand Adlakha v. Delhi Development Authority in the following words: para 29) If diploma holders of course on the justification of the job requirements and in the interest of maintaining a certain quality of technical expertise in the cadre could validly be excluded from the eligibility for promotion to the higher cadre, it does not necessarily follow as an inevitable corollary that the choice of the recruitment policy is limited to Only two choices, namely, either to consider them 'eligible ' or 'not eligible', State, consistent with the requirements of the promotional posts and in the interest of the efficiency of the service, is not precluded from conferring eligibility on diploma holders conditioning it by other requirements which may, as here, include certain quantum of service experience. In the present case, eligibility determination was made by a cumulative criterion of a certain educational qualification plus a particular quantum of service experience. It cannot, in our opinion, he said, as postulated by the High Court, that the choice of the State was either to recognise diploma holders as 'eligible' for promotion or wholly exclude them as 'not-eligible'
15. Counsel for the respondents however placed strong reliance upon certain observations made by Bhagwati, J. in Mohammad Shujat Ali v. Union of India. After referring to the facts of and the principles enunciated in, T.N. Khosa the learned Judge made pertinent observations in para 28 of the decision which have been already quoted herein before, hence no need to quote again.
16. On the basis of the above observations it is argued that once the diploma holders are also held eligible for promotion, it is not permissible for the rule-making authority to make any distinction between graduates and diploma holders. We cannot agree. As a matter of fact, this Court in Shujat Ali case upheld the validity of the Andhra Pradesh rule which made a distinction between the graduate supervisors and non-graduate supervisors in the matter of promotion to the higher categories on the ground that in the erstwhile States of Andhra and Hyderabad, graduate supervisors were always treated as distinct and separate from the non-graduate supervisors, their pay scales were different; they were never really integrated into one class and graduate supervisors were called Junior Engineers. Accordingly, it was held that reducing the chances of promotion of non-graduate supervisors vis-a-vis graduate supervisors was not discriminatory. (As we shall presently point out, the factual situation in Madras Corporation Engineering service is similar.) The observations quoted above cannot be read in isolation nor can they be read as running counter to the ratio of T.N. Khosa. Both decisions were rendered by Constitution Benches. In any event, the facts and circumstances of the case before us are akin to those in Shujat Ali. Secondly, as explained hereinbefore there would be no justification in principle for holding that the rule-making authority has only two options namely either to bur the diploma holders altogether from promotion or to allow them equal opportunity with the graduate engineers in the matter of promotion. It must be remembered that the power of rule-making under the proviso to Article 309 has been held to be legislative in character (Vadera). If so, the test is whether such a restrictive view is permissible vis-a-vis a legislature. If not, it is equally impermissible in the case of the rule-making authority under the proviso to Article 309. The only test that such a rule has to pass is that of Articles 14 and 16 and to that aspect we may turn now.
29. Again in T.R. Kothandaraman and Ors. v. Tamil Nadu Water Supply and Drainage Board and Ors. , the prescription of higher quota in promotion based on higher educational qualification was upheld. While analysing the propositions laid down by Hon'ble Apex Court in aforesaid two constitution Bench decisions and subsequent decisions, the Hon'ble Apex Court in para 7 to 11, 13 and 16 of the decisions observed as under:
The aforesaid two decisions have been understood and applied differently by different courts including this Court. There are also decisions of this Court rendered thereafter which took note either of Khosa or Shujat Ali. This was so in Punjab State Electricity Board v. Ravinder Kumar Sharma , wherein a two Judge Bench did not approve of the fixation of quota between diploma and non-diploma-holders, without having noted Khosa decision. Another Bench of two learned Judges held the classification on the basis of educational qualifications as permissible by relying solely on Khosa. This was in Shamkant Narayan Deshpande v. Maharashtra Industrial Development Corporation 1993 Supp (2) S.C.C. 194 : 1993 S.C.C. (L & S) 419. These decisions, therefore, cannot be called in aid by any of the parties. For the same reason, we would say that the judgement of a three-Judge Bench in N. Abdul Basheer v. K.K. Karunakaran is not of much assistance to us, because, though that decision took note both of Khosa and Shujat Ali, the ratio of 1:3 for graduates and non-graduates for promotion was held to be discriminatory, as the history did not point out if these two categories of incumbents were treated differently, which was the reason for holding the quota rule as valid in Shujat Ali.
8. We would now refer to the decision which can be said to be a trendsetter. It was rendered in Roop Chand Adlakha v. Delhi Development Authority . A two-Judge Bench speaking through Venkatachaliah, J. as he then was, after taking note of not only the decisions rendered in Khosa and Shujat Ali cases but some others as well on the point under examination made a very pertinent observation at page 268 of the Report. The same is that if diploma-holders (of course, on the justification of job-requirements and in the interest of maintaining a certain quality of technical expertise in the cadre) can validly he excluded from the eligibility for promotion to the higher cadre, it does not necessarily follow as inevitable corollary that the choice of the recruitment policy is limited to two, namely, either to consider them 'eligible' or "not eligible". The Bench then stated that the State is not precluded from conferring eligibility on diploma-holders conditioning it by other requirements like varying period of length of experience, which in the case of Roop Chand was 10 years far the diploma holders and 8 years for degree-holders. It was concluded by slating that Article 16 would not prevent the State from formulating a policy which prescribes as an essential part of the conditions for the very eligibility that the candidate must have a particular qualification plus a stipulated quantum of service experience. Being of this view, the rule in question laying down different period of service experience for diploma-holders and degree-holders was not found violative of Articles 14 and 16.
9. Before adverting to the decision rendered in P. Murugesan v. State of T.N. , which has been pressed into service by the degree-holders, it would be profitable to know what was held in two earlier decisions, which are by two-Judge Benches of this Court. The first of these is the case of V. Markendeya v. State of A.P. in which differentiation of A non-graduate supervisors and graduate supervisors for the purpose of pay scales was held not have violated Articles 14 and 16. Of course, in coming to this decision the historical background was also kept in mind as would appear from what has been noted in paragraph 14 of the judgment. Another decision is the one rendered in Govt. of A.P. v. P. Dilip Kumar (1993) 2 S.CC. 310 holding that classification on the basis of higher educational qualifications to achieve higher administrative efficiency is permissible under our constitutional scheme, because of which the Bench did not find fault with giving of preference to the postgraduates as a class in matter of promotion.
10. We now come to the decision in Murugesan, which is by a three Judge Bench, which first noted the judgment in Khosa case and observed in paragraph 11 that to say that placing of restriction on diploma-holders by limiting their chances of promotion to one out of Jour promotions fas was done by the impugned amendment) after the graduate engineers and diploma-holder engineers constituted one class and performed same duties and discharged same responsibilities, would not be justified, was "too simplistic way of looking at the issue". Having said so the Bench noted the ratio of Khosa case and observed in paragraph 14 and if diploma-holders can be barred altogether from promotion, it was difficult to appreciate how and why the rule-making was precluded from restricting the promotion. It was pointed out that the rule-making authority may be of the view, having regard to the efficiency of the administration and other relevant circumstances, that while it is not necessary to bar the diploma-holders from promotion altogether, their chances of promotion should be restricted. It was then stated that on principle there is no basis for the contention that only two options are open to rule-making authority- either bar the diploma-holders altogether or allow them unrestricted promotion on a par with the graduates. The view expressed in Roop Chand case was also referred.
11. Murugesan Bench thereafter noted the hallmark of Shujat Ali case which was the need to keep in mind the historical background of the service in question. Decisions in Shamkant, Ravinder Kumar and Abdul Basheer were then traversed and the Bench upheld the validity of ratio of 3:1 between graduates and diploma-holders in promotion; so also, the longer qualifying period for service far diploma holders.
13. The aforesaid bird's-eye view of important decisions of this Court on the question of prescribing quota in promotion to higher post based on the educational qualification makes it clear that such a qualification can be certain cases be a valid basis of classification; and the classification need not be relatable only to the eligibility criteria, but to restrictions in promotion as well, further, even if in a case the classification would not be acceptable to the court on principle, it would, before pronouncing its judgment, bear in mind the historical background. It is apparent that while judging the validity of the classification, the court shall have to be conscious about the need for maintaining efficiency in service and also whether the required qualification is necessary for the discharge of duties in the higher post.
16. From what has been stated above, the following legal propositions emerge regarding educational qualification being a basis of classification relating to promotion in public service:
(1) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances of each case.
(2) Higher educational qualification can be the basis not only for barring promotion, hut also for restricting the scope of promotion.
(3) Restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable. Reasons for this are being indicated later.
30. In P.A. Chandran and Ors. v. Board of Revenue (Excise) and Ors. 1995 Supp. (1) S.C.C. 159, the prescription of quota 1:1 between SSLC and non-SSLC Excise Guards for promotion to the post of Excise Preventive Officer was under considerations and upheld by Hon'ble Apex Court the pertinent observations made in para 4,5 and 6 of the decision are as under:
4. As to the aforesaid contention we would state that in Abdul Basheer case this Court regarded the ratio in question as discriminatory as the history did not point out if the two categories of incumbents were treated differently, as has been pointed out in para 7 of the judgment in Kothandaraman. The decision in Abdul Hasheer case cannot, however, assist the non-S.S.L.C. Excise Guards because there are material on record in the present cases to show that ever since the Kerala State was formed (I -11-1956), the Excise Preventive Officers were required to have educational qualification similar to that of S.S.L.C. This would he apparent from the fact that after the formation of the State, by issuing executive orders it was prescribed that for promotion to the cadre of Excise Preventive Officers the incumbents must have the minimum educational qualification of ES.L.C. or S.S.L.C. This had been done by G.O. dated 23.8.1957, a copy of which is at Annexure A-4 to the appeal arising out of SLP (C) No. 12398 of 1987. Thereafter G.O. dated 14.8.1959 (Annexure A-5) was issued in which also the minimum educational qualification for promotion of Excise Guards to the cadre of Preventive Officer was mentioned as E.S.L.C. or S.S.L.C. Then came G.O. of 2-3-1965 (Annexure A-6) which provided the ratio of I:1 between Excise Guards possessing S.S.L.C. qualification with minimum service of 3 years and non-S.S.L.C. Excise Guards with minimum service of 15 years. There is still another order dated 29.2.1968 as at Annexure A-7 which is by and large to the same effect. Thereafter came to be framed the statutory rules at hand named as Special Rules for the Kerala Excise and Prohibition Subordinate Service, in which, while maintaining the ratio as earlier, the experience qualification was reduced to 7 years in so far as non-S.S.L.C. Excise Guards are concerned.
5. This shows that historically the post of Excise Preventive Officer was required to be manned by Excise Guards having the minimum qualification of S.S.L.C. It is because of this Abdul Basheer case cannot he called in aid by the non-S.S.L.C. Excise Guards inasmuch as their history did not point out to different treatment being given to the two categories, whereas the position is different here.
6. We may deal with still another contention which has been advanced by Shri Sanghi appearing for some of the respondents- the same being that after 7 years of service experience, the non S.S.L.C. Excise Guards come on a par with those Excise Guards who have S.S.L.C. as their educational qualification and have rendered 3 years of service. According to the learned Counsel, the denial of the posts of Excise Preventive Officers to those non-S.S.L.C.. Excise Guards who after serving 7 years have become eligible for promotion to the posts of Excise Preventive Officers would not be permissible. We are not impressed with this submission because what the laying down of ratio does is postponement of the chances of promotion and not the denial of promotion as such. By providing the ratio of 1:1 the rule really gives the two categories equal opportunity, though the effect is that some non-S.S.E.C. Excise Guards, even if they are senior to S.S.L.C. Excise Guards, may get promoted to the higher post later, if the post to fall vacant be one meant for S.S.L.C. qualified Excise Guards. The seniormost non- S.S.L..C. Excise Guards would, in such an eventuality, be promoted to the next vacancy as that would be meant for such an incumbent. Thus the chance of promotion of non-S.S.L.C. Excise Guards gets only deferred and not denied. It is a settled law that promotion cannot be claimed with the aid of Article 16 inasmuch as no incumbent has a right to he promoted and it is because of this a chance of promotion has not been regarded as encompassed within the right visualised by Article 16.
31. In Kuldeep Kumar Gupta and Ors. v. H.P. State Electricity Board and Ors. (2001) 1 S.C.C. 475, the dispute centers round the question as to whether it is permissible for the employer to frame regulation providing a separate quota of promotional avenue for the less qualified Junior Engineers in preference to the claim of qualified diploma holder Junior Engineers in the feeder category for promotion to the post of Asstt. Engineers? In the cadre of Junior Engineer 95% vacancies are filled up by direct recruitment from diploma holders and only 5% is by promotion from among the lower category who are usually matriculates with I.T.I. certificates. So far as promotion to the post of Asstt. Engineer is concerned, the H.P. State Electricity Board has been amending the promotion regulation from time to time providing for a ratio between direct recruits and promotees and again further providing a quota within the promotion quota to be filled up by junior engineers (qualified) and junior engineers (unqualified). So far as unqualified junior engineers are concerned those of them who possess I.T.I. qualification must have twelve years of service in the grade for being eligible for promotion to the Asstt. Engineers and those who are merely matriculates and without I.T.I, qualification have fifteen years of service in the grade for being eligible for promotion to the post of Asstt. Engineer, these unqualified junior engineers have been brought to the cadre of junior engineers by promotions. These regulations were challenged inter alia on the ground that, there has been a total integration of both categories of junior engineers and they discharge identical functions, their duties being inter changeable and enter transferable and from the fused cadre it is not permissible to provide a different quota for promotion to the higher post and said provision must be held to be arbitrary and irrational and as such is liable to be struck down. While taking note of earlier decisions the Hon'ble Apex Court, repelled the challenge holding the regulations valid in para 5,6 and 7 of the decision as under:
5. From the fads asserted and the contentions raised in these appeals, the following questions really arise for our consideration:
(1) The feeder cadre of Junior Engineers, having been filled up from two recruitment sources, one by qualified diploma-holders by way of direct recruitment and the other by unqualified matriculate ITI Certificate-holders by promotion, can there be a separate consideration for them in the matter of promotion to the post of Assistant Engineer and whether such separate consideration violates any constitutional mandate?
(2) Providing a quota in the promotional cadre, whether can be said to be a reservation within the meaning of Article 16(4) and as such can it be held to be violative of Article 16(4) of the Constitution?
(3) Administrative efficiency being the consideration, though it may be permissible to have a specified percentage of posts in the promotional quota on the basis of educational qualification, as held in Murugesan can it be held to be violative of Articles 14 and 16, when such a quota is meant for unqualified persons in the feeder category?
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 this Court has held that once the direct recruits and promotees 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. It has been laid down in the aforesaid case that even where direct recruits and promotees 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 that classification in matters of promotion with academic or technical qualification as a basis is a matter for 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 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. It cannot extend to embarking upon a nice or mathematical evaluation on the basis of classification. In Triloki Nath the Court held that Roshan Lal case is no authority for the proposition that there cannot be a classification for the purpose of promotion on a basis other than the one that they were drawn from different sources. Triloki Nath thus distinguishes both the earlier decisions in Mervyn Continho and Roshan Lal Tandon. Triloki Nath has been followed in Murugesan where this Court held that it would be open far the rule-making authority, having regard to the efficiency of the administration and other relevant circumstances to restrict the chance of promotion of the less-qualified people in the feeder category. In Mnrugesan the Court upheld the quota in the matter of promotion in favour of graduate Engineers. It may be noticed that in Murugesan the Court overruled the earlier decision in Punjab SEB distinguished in Abdul Basheer case. The contention of Mr. Subramanium, is no doubt that there can be a classification in favour of the qualified people having regard to the efficiency of the administration but a classification in the manner of providing a quota for unqualified people cannot be held to be in the interest of administration and, therefore, cannot be sustained on the principles of Murugesan. We are unable to accept this contention of the learned Counsel for the appellants. Once a classification is permissible notwithstanding that the feeder category is one, when the said classification is challenged as being discriminatory, then unless and until sufficient materials are produced and it is established that it is unjust on the face of it by the persons assailing the classification, the Court would be justified in coming to the conclusion that such plea of unlawful discrimination had no basis, as was observed in Triloki Nath. Adjudged from the aforesaid standpoint when the pleadings in the case in hand are examined, we do not find any materials to sustain the plea of discrimination raised by the appellants, who are direct recruit diploma-holder Junior Engineer. In the case in hand, the Regulations from time to time on being examined, unequivocally show that right from the inception, quota has been provided for promotion in favour of the unqualified promotee Junior Engineers, though the quota has been changed from time to time and while providing such quota, longer experience as Junior Engineer has been the basis for being eligible for promotion. Providing such a quota in the service history right from the inception is also a germane consideration for the Court while considering the question of alleged discrimination. That apart when the feeder category itself is filled up by direct recruit diploma-holders and promotee unqualified matriculates and if no quota is provided for such unqualified matriculates in the promotional cadre of Assistant Engineer then they may stagnate at that stage which will not be in the interest of administration. If the rule-making authority on consideration of such stagnation, provides a quota for such unqualified promotee Junior Engineers, the same cannot be held to be violative of any constitutional mandate and on the Other hand would come within the ratio of Murugesan. In our considered opinion, therefore, there can be a separate consideration for the promotee unqualified matriculate Junior Engineers in the matter of promotion to the post of Assistant Engineer and the impugned Regulation providing a quota for them cannot be held to be violative of Article 14.
6. So far as the second question is concerned, we are unable to persuade ourselves to agree with the submission of Mr. Subramanium that providing a quota tantamounts to reservation. Article 16 deals with equality of opportunity in matters of public employment and Article 16(4) enables the State in making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. This Court in Indra Sawhney case has held that no such reservation is permissible in the promotional posts and to get over the said decision Article 16(4-A) has been inserted by the Constitution (Seventy-seventh Amendment) Act. But we fail to understand as to how providing a quota for a specified category of personnel in the promotional post can he held to be a reservation within the ambit of Article 16(4). Providing a quota is not new in the service jurisprudence and whenever the feeder category itself consists of different category of persons and when they are considered for any promotion, the employer fixes a quota for each category so that the promotional cadre would be equibalenced and at the same time each category of persons in the feeder category would get the opportunity of being considered for promotion. This is also in a sense in the larger interest of the administration when it is the employer, who is best suited to decide the percentage of posts in the promotional cadre, which can be earmarked far different category of persons. In other words this provision actually effectuates the constitutional mandate engrafted in Article 16(1), as it would offer equality of opportunity in the matters relating to employment and it would not be the monopoly of a specified category of persons in the feeder category to get promotions. We, therefore, do not find any infraction of the constitutional provision engrafted in Article 16(4) while providing a quota in the promotional cadre, as in our view it does not tantamount to reservation.
7. So far as the third question is concerned, if it is permissible to have a specified percentage of posts on the basis of educational qualification as has been held by this Court in Murugesan, we really fail to understand, as to why the employer or the rule-making authority would be debarred from allotting a specific percentage in favour of unqualified matriculate promotee Junior Engineers. The Regulation provides that out of 46% of promotional quota in the cadre of Assistant Engineer, 28% will he available for qualified diploma-holder Junior Engineers and 8% would be for unqualified matriculate Junior Engineers, 6% meant for A and B passed and 4% for Draftsman. According to Mr. Subramanium the quota available for A and B and Draftsman could come within the ambit of the decision of this Court in Triloki Nath or Murugesan but not the respondent unqualified matriculate Junior Engineers in whose favour 8% quota has been fixed. We are unable to accept this contention of the learned Counsel. It may be noticed at this stage that so far as the unqualified Junior Engineers are concerned those of them who possess ITI qualification must have twelve years of service in the grade for being eligible for promotion to the post of Assistant Engineers and those who are merely matriculates and without ITI qualification, must have fifteen years of service in the grade for being eligible for promotion to the post of Assistant Engineer. These unqualified Junior Engineers have been brought to the cadre of Junior Engineers by promotion and in most cases they am at the maximum aspire to retire as Assistant Engineers. If the rule-making authority considers that the stagnation at the stage of Junior Engineer will not be conducive for administration and provides the promotional avenue for them, by providing a quota in the promotional cadre and the service history itself indicates that such provision has been made right from the inception, we see really no constitutional infraction therein, so as to be interfered with by this Court, We, therefore, do not find any substance in the submission of Mr. Subramanium on this score and in our considered opinion there is no bar for providing a quota in the promotional post, even in favour of unqualified, matriculate Junior Engineers.
32. In Dwarka Prasad and Ors. v. Union of India and Ors. , the appellants were appointed as Preventive Officers (grade I) in Central Service Group-C (non-gazetted). The question before Tribunal was on the validity of 20% quota fixed for them for promotion to the post of Appraiser. According to them, a much lower quota fixed for them as compared to 75% fixed in favour of Examining Officers is arbitrary and discriminatory. The aforesaid quota was fixed by statutory rules framed under Article 309 Constitution of India viz. the department of Revenue (Customs, Appraisers Recruitment) Rules, 1988. The Appellants assailed the validity of rules and the schedule appended to it where under 75% and 25% quota has been fixed respectively for E.Os. and P.Os., but the challenge has been repelled and while dealing with the controversy in para 16, 17, 23 and 25 of the decision Hon'ble Apex Court has held as under:
16. Fixation of quotas or different avenues and ladders for promotion in favour of various categories of posts in feeder cadres based upon the structure and pattern of the Department is a prerogative of the employer, mainly pertaining to the policy-making field. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the holders of posts in the feeder cadres. Most important of them all is the requirement of the promoting authority for manning the post on promotion with suitable candidates. Thus, fixation of quota for various categories of posts in the feeder cadres requires consideration of various relevant factors, a few amongst them have been mentioned for illustration. Mere cadre strength of a particular post in the feeder cadre cannot be a sole criterion or basis to claim parity in the chances of promotion by various holders of posts in feeder categories.
17. Normally, where officers are to be drawn for promotion from different posts in the feeder cadre, quota for each post in the feeder cadre is maintained proportionately to the sanctioned strength in that post. This, however, cannot be an inviolable rule of strict application in every case, with an absolute equality of arithmetical exactitude but may vary from case to case depending upon the pattern, structure and hierarchies in the departmental set-up as well as exigencies and balancing needs of administration. There are other relevant considerations, some of which have been mentioned above, which may require departure from the practice of fixation of quota for each post in the feeder cadre, solely proportionate to its strength.
23. This contention also is unacceptable. As has been pointed out, in Group 'B' posts POs have two channels of promotion: 100% to the post of Superintendent (Group 'B') and 20% for the post of Appraiser, EOs have only one channel of promotion with quota of 75% for promotion to Group 'B' posts. Thus the holders of the two posts constitute two distinct classes with different conditions of service and nature of duties, it is open to the promoting authority to treat them differently in the matter of providing avenues of promotion to Gruop 'B' posts. In the case of State of Rajasthan v. Rajendra Kumar Godika 1993 Supp (3) SCC 150 at page 167, this Court relied and quoted with approval the following passage from Constitutional Law by Prof. Willis and repelled similar contention on grievance of discrimination:
Mathematical meaty and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.
25. We do not find any legal or constitutional infirmity in the lower quota fixed for POs as compared to EOs for the post of Appraiser, Group 'B'....
33. In Chandravathi P.K. and Ors. v. C.K. Saji and Ors. AIR 2004 S.C. 2717, fixation of separate quota for degree holder, diploma holder and certificate holders in promotion to cadre of Asstt. Executive Engineer and option given to diploma holder who passed degree examination subsequently to either opt for promotion in the category of degree holder or diploma holder, but once he opts to join the stream of degree holder he would be placed at bottom of seniority list, the said rules were not found unconstitutional by Hon'ble Apex Court. The observations made in para 43 of the decision are as under:
43. The State as an employer is entitled to fix separate quota of promotion for the degree-holders, diploma-holders and certificate-holders separately in exercise of its rule-making power under Article 309 of the Constitution of India. Such a rule is not unconstitutional. The State may, therefore, in our opinion, cannot be said to have acted arbitrarily by giving an option to such diploma-holders who acquired a higher qualification so as to enable them to either opt for promotion in the category of degree-holder or diploma-holder. Such option was to he exercised by the concerned officer only. He, in a given situation, may feel that he would be promoted in the diploma holders quota earlier than degree-holders quota and vice versa but once he opts to join the stream of the degree-holders, he would be placed at the bottom of the seniority list.
34. Thus from the aforesaid discussions following legal propositions emerge regarding the educational qualification being a valid basis for classification relating to public service and other relevant factors for fixation of different quota for promotion for different categories of posts in the feeder cadre:
(1) Where the persons appointed directly and by promotion were integrated into common class, they could for the purpose of promotion to the next higher post be classified on the basis of educational qualification. The rule providing the candidates of higher qualification shall be eligible for such promotion to the exclusion of candidates having lesser qualification does not violate Article 14 and 16 of the Constitution. There can be separate consideration for them in the matter of promotion to the next higher post and such separate consideration cannot be held to be violative of any constitutional mandate.
(2) Higher educational qualification is permissible basis of classification, acceptability of which will depend upon the facts and circumstances of each case. Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion and the classification need not be relatable only to the eligibility criteria, but to restrictions in promotion as well. Restrictions placed cannot however go to the extent of seriously jeopardizing the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable or not.
(3) Even if in a case the classification would not be acceptable to the court, on principle, it would before pronouncing its judgment bear in mind the historical background. While judging the validity of classification the court shall have to be conscious about the need for maintaining the efficiency in service and also whether the required qualification is necessary for discharging of duties in the higher post.
(4) Fixation of quota in promotional cadre for specified category of personnel cannot be held to be reservation within the ambit of Article 16(4) of the Constitution. Providing a quota in promotion is not new in the service jurisprudence and whenever the feeder cadre itself consist of different categories of persons and when they are considered for any promotion the employer fixes a quota for each category so that the promotional cadre would be equibalanced and at the same time each category of such person in the feeder cadre would get opportunity of being considered for promotion. This is also in a sense in the larger interest of administration when it is employer who is best suited to decide the percentage of post in promotional cadre, which can be earmarked for different category of persons. In other words such provisions actually effectuates the constitutional mandate engrafted in Article 16(1) as it would offer equality of opportunity in the matters relating to the employment and it would not be the monopoly of a specified category of persons in the feeder cadre to get promotion and providing such separate quota for promotion in favour of the employees in feeder cadre does not tantamount reservation in promotion and cannot be hit by Article 16(4) of the Constitution.
(5) Fixation of quota or different avenues and ladders for promotion in favour of incumbents of various category of post in feeder cadres based upon structure and pattern of the Department is a prerogative of the employer, mainly pertaining to the rule-making field. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder post, suitability more or less of the holders in feeder post, their nature of duties, experience and channels of promotion available to the holder of post in feeder cadres. Most important of them all is requirement of promoting authority for manning the post on promotion with suitable candidates.
(6) Normally, where the officers are to be drawn for promotion from different posts in the feeder cadre, quota for each post in the feeder cadre is maintained proportionately to the sanctioned strength in that post but mere cadre strength in a particular post in a feeder cadre cannot be a sole criterion or basis to claim parity in the chances of promotion by various holders of the post in feeder cadres. There are other relevant consideration which may require departure from the practice of fixation of quota for each post in the feeder cadre solely proportionate to its strength which may vary from case to case depending upon the pattern, structure and hierarchies in departmental set up as well as exigencies and balancing needs of administration.
(7) If the rule making authority considers that stagnation in particular service would not be conducive for administration and to avoid such stagnation, provides promotional avenue by a separate quota even to the lesser-qualified employee in the feeder cadre, there can be no constitutional infraction therein.
35. Now before applying the law laid down herein before upon the facts and circumstances of the case in hand, it is necessary to examine the submissions of learned Counsel for the petitioner and the rulings upon which reliance was placed by him, referred herein before. In Aruvendra Kumar Garg case (supra), a Division Bench of this Court has come across inter-alia on a question, whether classification of members of feeder cadre based on qualification (degree and Diploma) is violative of Article 14 and 16 of the Constitution of India. While dealing with the aforesaid question as question No. 3 in Para 21 to 25 of the decision, this Court has held that fixation of separate quota for degree holder and Diploma holder junior Engineers when both are eligible for promotions on the post of Assistant Engineer, and criterion for such promotion is seniority subject to rejection of unfit under the relevant rules, is discriminatory and violative of Article 14 and 16 of the Constitution. While deciding the issue this Court has referred four decisions of the Hon'ble Apex Court rendered in Govind Dattatray Kelkar's case (supra), Mohd. Shujat Ali's case (supra), Roopchand Adlakha's case (supra) and H.C. Sharma and Ors. v. Municipal Corporation Delhi and Ors. In this connection, it is noteworthy to mention here that while deciding the case in question, with all respect to the learned Judges of this Court, they did not notice the constitution Bench decision rendered in T.N. Khosa case (supra) and oilier decisions of Hon'ble Apex Court having material bearing on the question in issue and available at that time, referred herein before in this judgment. This Court has noticed the constitution Bench decision of Hon'ble Apex Court in Govind Dattatray Kelkar (supra) wherein the validity of a provisions under the recruitment rules providing appointment by direct recruitment and the promotion in the ratio of 3:1 was under challenge. While laying down the proposition that prescription of quota depends upon facts and circumstances of each case and requirement and need of particular post unless it is found unreasonable as to amount discrimination, it is difficult to strike it down and suggest a different ratio. It appears that the case was distinguishable on facts therefore this Court found unnecessary to discuss the applicability of ratio of the aforesaid case.
36. While dealing with the case of Mohd. Shujat Ali, the Division Bench of this Court although has quoted the broad proposition of law laid down by Hon'ble Apex Court in the aforesaid case, but could not examine as to why aforesaid proposition could not be applied by Hon'ble Apex Court itself in the aforesaid case. As discussed hereinbefore because of historical background of services rules or the posts under consideration, the Hon'ble Apex Court could not be found persuaded to strike down the rules under consideration, but the Division Bench of this Court has completely ignored the ratio of the aforesaid decision based on the history of service rules and did not examine the history of concerned service rules and posts in question while deciding the case in question. Although Roopchand Adlakha's case, have much bearing on the question in Controversy involved in the aforesaid case but the Division Bench of this Court has distinguished the same merely on the ground that mere fixation of quota for promotion between diploma holders and graduates was not under challenge but what was assailed therein, the very prescription of different standard of condition of eligibility. In this connection it is significant to point out that in the aforesaid case although the rules prescribing 25% quota for degree holders Junior Engineers and 25% quota for diploma holders Junior Engineers in promotion to the posts of Assistant Engineers with variant eligibility standard and diploma holders Assistant Engineers and degree holders Assistant Engineers with variant eligibility standard for promotion to the posts of Executive Engineers were under challenge but the prescription of separate quota for both categories of Junior Engineers i.e. degree holders and diploma holders were there However, another' case referred by Division Bench of this Court is H.C. Sharma's case (supra) This case was decided by Division Bench consisting of two Hon'ble Judges of the Apex Court wherein Hon'ble Apex Court did not notice the earlier decisions of constitution Benches rendered in T.N. Khosa and Mohd. Shujat Ali case, seems for the simple reason that any existing rules prescribing any separate quota for promotion to the post of Asstt. Engineers for graduate engineers, working as junior engineers was not under challenge. Contrary to it two writ petitions were directly filed before Hon'ble Apex Court one of which was by Diploma holder junior engineers and another by degree holder junior engineers. The degree holder junior engineers have sought relief for mandamus for carvation of their separate quota for promotion on account of attainment of their higher qualification. In aforesaid, factual backdrop of the case Hon'ble Apex Court has declined to grant relief claimed in the writ petition with the observation quoted in the decision in question, thus the observation made by Hon'ble Apex Court should be understood in the context of the aforesaid case and question involved therein.
37. Thus in view of aforesaid discussion, we are constrained to hold that the Division Bench of this Court in Aruvendra Kumar Garg's case has not decided question No. 3 correctly, therefore, the decision rendered therein on question in issue cannot be held to be good law atleast for the reasons that firstly, while deciding the aforesaid case, the Division Bench of this Court did not notice the Constitution Bench decision of Apex Court rendered in T.N. Khosa case, which has been consistently followed by Hon'ble Apex Court itself in subsequent decisions such as in Roop Chand Adalkha case, Muruiiesan's case, T.R. Kothandaraman's case, Dilip Kumar's case, Kuldeep Kumar Gupta's case atleast available at that time and has virtually ignored law laid down by the Hon'ble Apex Court in aforesaid cases as binding precedent, therefore, held to be decision given as per-incuriam; secondly, the said decision also runs contrary to the dictum of Hon'ble Apex Court laid down in aforesaid cases and also in subsequent decisions referred herein before in this case and lastly the ratio of the decisions referred in the judgement in question itself, in our considered opinion has not been followed correctly, as discussed earlier herein before in this judgement Another case, which was relied upon by learned Counsel for the petitioner, was Mohd. Shujat Ali's case. The ratio of this case also does not lend any support to the case of petitioner, therefore can be of no assistance in given facts and circumstances of the case.
38. Now coming to the facts of the case again it is significant to note that it is not in disputed that under Rule 5 of 1993 Rules the posts of Bhumi Sanrakshan Adhikari and Technical Officers are liable to be filled up by cent percent promotion from amongst substantively appointed Junior Engineers and Technical Assistants who have completed seven years service as such on the first day of year of recruitment. However a proviso appended to the said rule postulates that 10% of the total strength of cadre shall be filled up from amongst such substantively appointed Junior Engineers and Technical Assistances who possess Bachelors degree in Agriculture or Civil Engineering from an institution recognised by the Government and renders seven years substantive service. Similarly under Rule 5 of 2003 Rules the posts of Deputy Director and Project Officer shall be filled up cent percent by promotion from amongst substantively appointed Bhumi Sanrakshan Adhikari and Technical Officers who belonged to Command Area Project Bhumi Sanrakshan Adhikari and Technical Officer Service and have completed seven years service as such on the first day of year of recruitment, A similar proviso has also been appended to this rule which provides 10% posts of total strength of cadre shall be filled up from amongst such substantively appointed Bhumi Sanrakshan Adhikari and Technical Officers belonging to Command Area Project Bhumi Sanrakshan Adhikari and Technical Officer services who possess Bachelor degree in Agronomy, Agriculture Engineering, Civil Engineering or Mechanical Engineering from an institution recognised by Government and have completed seven years service as such on first day of year of recruitment. There appears no dispute regarding the filling up the post of Joint Director Agriculture. The dispute centers round only with regard to the proviso providing 10% separate quota for promotion to the post of Deputy Director and Project Officer in Group 'A' service under Rules 2003 and amended Rules 2005 from amongst persons belonging to the Command Area Project Bhumi Sanrakshan Adhikari and Technical Officer Service. Further it is not in dispute that the remaining 90% post of Bhumi Sanrakshan Adhikari and Technical Officers and Deputy Directors and Project Officers are filled up from the feeder category of post through promotion indiscriminately from both i.e. degree holders and non-degree holders. However in respect of only 10% posts the rule making authority has placed embargo against non-degree holders incumbents of feeder posts According to the learned Counsel for the petitioner once the degree holders has already received accelerated promotion against 10% separate quota in Group 'B' services i.e. the post of Bhumi Sanrakshan Adhikari and Technical Officers, there can be no justification to provide them further similar accelerated promotion on the next higher post of Deputy Director and Project Officer on the basis of their degree qualification alone besides otherwise being eligible for promotion. In this connection learned Counsel for the petitioner has submitted that once degree holders and non-degree holders Junior Engineers and the Technical Assistants have been promoted on the post of Bhumi Sanrakshan Adhikari and Technical Officers they constitute one class in the cadre of service, performed same duties and discharged same responsibilities, placing a restriction on the diploma holder or non-degree holder alone and limiting their chance of promotion to the remaining 90% posts of Deputy Director and Project Officer by excluding 10% such posts earmarked in the cadre of Group 'A' services only for degree holders as has been done by impugned amendment is not justified and violates equality concept enshrined under Article 14 and 16(1) of the Constitution.
39. In this connection only this much can be observed that this may be a too simplistic way of looking at the issue. We cannot fail to take notice of the fact that right from the Constitution Bench decision of Apex Court in Triloki Nath Khosa's case holding uniformly that even where direct recruits and promotees are integrated into a common class and fused together in a particular single cadre of service, without leaving their separate entity, in respect of pay scale, duties, responsibilities and seniority etc, they could for the purpose of promotion to the higher cadre be classified on the basis of educational qualification. Such view goes to sustain the validity of impugned proviso and amended proviso for the simple reason that if non-degree holder Junior Engineers and Technical Assistants can be barred altogether from promotion on the posts of Bhumi Sanrakshan Adhikari and Technical Officers on the basis of educational qualification alone it is difficult to appreciate how and why is the rule-making authority precluded from restricting their scope for promotion to the extent of remaining 90% posts in the cadre strength of the Command Area Bhumi Sanrakshan Adhikari and Technical Officer Services and similarly to the extent of 90% cadre strength of U.P Land Development and Water Resources Department Group 'A' Service. The rule-making authority may be of the opinion having regard to the efficiency of administration and other relevant circumstances that while: it is not necessary to bar the non-degree holders from promotion altogether, their chances of promotion should be restricted only to that extent. On principle there is no basis for contention that only two options are open to the rule-making authority either bar the non-degree holders altogether or allow them unrestricted for promotion on par With the graduates (degree holders).
40. This aspect has been emphasized by Hon'ble Apex Court in Roop Chand Adlakha's case Speaking for the Bench Hon'ble Justice Mr. Venkatachaliah (as he then was) observed that if diploma-holders of course, on the justification of job requirements and in the interest of maintaining a certain quality of technical expertise in the cadre could validly be excluded from the eligibility for promotion to the higher cadre, it does not necessarily follow as inevitable corollary that the choice of recruitment policy is limited to only two choice, namely either to consider them eligible or not eligible. State consistent with the requirement of promotional posts and in the interest of efficiency of service is not precluded from conferring eligibility on diploma-holders conditioning it by other requirements, which may as here include certain quantum of service experience. In the aforesaid case rules providing degree holders Junior Engineers with 3 years service experience and diploma holder Junior Engineers with 8 years service experience were made eligible for promotion to the posts of Assistant Engineers in their respective quota and again degree holders Assistant Engineers with 8 years service experience and diploma holders Assistant Engineers with ten years service experience were made eligible for promotions to the posts of Executive Engineers, was found valid and based on reasonable classification. Although it was also a case of accelerated promotion of Junior Engineers and Assistant Engineers on the next higher posts on the basis of better educational attainment of holding degree in Engineering and chances of promotion of diploma holders were reduced to the considerable extent but the Hon'ble Apex Court has held the aforesaid higher qualification have correlation with the job requirement of posts. The aforesaid view of Hon'ble Apex Court has been followed in P. Murugesan's case (supra), wherein the Apex Court has further emphasized that it must be remembered that the power of rule-making under the proviso to Article 309 has been held to be Legislative in character (B.S. Vadera's case (supra). If so, the test is whether such a restrictive view is permissible vis-a-vis a Legislature. If not, it is equally impermissible in case of rule-making authority under the proviso to Article 309 The only test that such a rule has to pass is that of Article 14 and 16. The decision in Roop Chand's case has again been followed by Hon'ble Apex Court in T.R. Kothandaraman's case (supra), wherein the decision of T.N. Khosa's case and Shujat Ali's case both along with other decisions have been considered and explained.
41. Again in Kuldeep Kumar Gupta's case (supra) the Hon'ble Apex Court has considered Triloki Nath Khosa and Murugesan's case and other cases wherein the question in controversy inter alia was that the feeder cadre of Junior Engineer having been filled up from two recruitment sources; one by qualified Diploma-holders by way of direct recruitment and other by unqualified matriculate ITI Certificate-holders by promotion, can there be a separate consideration for them in the matter of promotion to the post of Assistant Engineer and whether such separate consideration violates any constitutional mandate and also another question that providing a quota in the promotional cadre, whether can be said to be a reservation within the meaning of Article 16(4) as contended by learned Counsel for the petitioner in the instant case and as such Can it be held to be violative of Article 16(4) of the Constitution? In the aforesaid case 5% quota was fixed for promotion on the post of Assistant Engineer from amongst the unqualified matriculate ITI Certificate-holders. The Hon'ble Apex Court in para 5 of the decision has held that there can be a separate consideration for the promotes unqualified matriculate Junior Engineers in the matter of promotion to the post of Assistant Engineer and the impugned Regulation providing a quota for them cannot be held to be violative of Article 14. Similarly in para 6 of the aforesaid decision it has been held that providing a quota in promotion for different categories of posts in the feeder cadre is not new in the service jurisprudence and whenever the feeder cadre itself consists of different categories of persons and when they are considered for promotion, the employer fixes quota for each category so that the promotional cadre would be equibalanced and at the same time each category of persons in feeder category could get opportunity of being considered for promotion. This is also in a sense in the larger interest of the administration when it is the employer who is best suited to decide the percentage of posts in the promotional cadre, which can be earmarked for different category of persons. In other words such provision actually effectuates the constitutional mandate engrafted in Article 16(1), as it would offer equality of opportunity in the matters relating to employment and it would not be the monopoly of a specified category of persons in the feeder category to get promotions and the Apex Court has held that there appears no infraction of Article 16(4) of the Constitution providing such quota in the promotional cadre and it does not tantamount to reservation. In para 7 of the decision the Apex Court has held that if the rule-making authority considers that the stagnation at the stage of Junior Engineer of unqualified matriculate with or without ITI qualification will not be conducive for administration and provides the promotional avenue for them, by providing a separate quota in promotional cadre, there can be no constitutional infraction in providing such quota.
42. Again in Dwarka Prasad case the Hon'ble Apex Court has considered the fixation of quota or different avenues and ladders for promotion in favour of various categories of posts in feeder cadre and has held that fixation of such quotas in feeder cadres based upon the structure and pattern of department is a prerogative of the employer, mainly pertaining to the policy-making field. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder post, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the holders of posts in the feeder cadres. Most important of them all is the requirement of promoting authority for manning the post on promotion with suitable candidates and again in Chandravathi's case after taking note of various earlier decisions in para 43 of the decision the Hon'ble Apex Court held that the State as an employer is entitled to fix quota for promotion for the degree-holders, diploma-holders and certificate-holders separately in exercise of its rule-making authority under Article 309 of the Constitution of India. Such a rule is not unconstitutional.
43. Besides this, in para 39 of the decision in T.N. Khosa's case it was held that the classification according to appellant 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. In earlier paragraph 38 of the decision it was held that judicial scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It can not extend to embarking upon a nice or mathematical evaluation of the basis of classification, otherwise it would be open to the courts to substitute their own judgment for that of the legislature or the rule-making authority on the need to classify or the desirability of achieving a particular object, Similarly in the case of Dwarka Prasad (supra) in para 23 of the decision the Hon'ble Apex Court has taken note of the decision in State of Rajasthan v. Rajendra Kumar Godika 1993 Supp (3) SCC 150 at page 167, wherein the Hon'ble Apex Court has relied and quoted with approval the passage from Constitutional Law by Prof. Willis and repelled similar contention on grievance of discrimination with observation that Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.
44. Thus in view of the aforesaid discussions in given facts and circumstances of the case, in our considered opinion the proviso in question providing ten percent separate quota for promotion to the post in Group 'A' service under Rules 2003 and amended Rules 2005 from amongst the persons belonging to Command Area Project Bhumi Sanrakshan Adhikari and Technical Officer Service who possess Bachelors degree in Agronomy, Agriculture Engineering, Civil Engineering or Mechanical Engineering and have rendered seven years substantive service on the first day of year of recruitment and leaving remaining 90% posts of Deputy Director and Project Officer to be filled up from amongst both degree holders and non-degree holders Bhumi Sanrakshan Adhikari and Technical Officers indiscriminately cannot be found faulty. This ten percent cadre strength in Group 'A' service for degree holders alone appears to be an additional strength besides their routine strength along with non-degree holders. Thus there appears nothing to indicate that degree holders alone are given avenue for promotion in total exclusion of non-degree holders or degree holders are permitted to push down non-degree holders gradually, and whereby there appears any chance of total exclusion of non-degree holders and their replacement from degree holders. The petitioner has failed to place any material on the basis of which it can be held that the proviso to Rule 5 of impugned Rules are violative of Article 14 and 16 of the Constitution of India, and the fixation of 10% separate quota in Group 'A' services under Rules 2003 as amended by Rules 2005 for degree holders Bhumi Sanrakshan Adhikari and Technical Officers can be held to be arbitrary and unreasonable. In absence of such materials, this Court has to assume that better qualification conceivably have correlation with the efficiency of administration in service and need or requirement of service and such classification can be held to be valid on the justification of job requirement and in the interest of maintaining a certain quality of technical expertise in the cadre of service, therefore, the same cannot be said to be unreasonable restriction imposed upon the non-degree holder incumbents of Group 'B' service particularly when it is not the case of petitioner that by giving preference or precedence to the degree holders, the right of promotions given to the non-degree holders by one hand are taken away by another hand and fixation of 10% separate quota for promotion for degree holders in our opinion, does not tantamount to reservation in favour of degree holders and cannot be held to be violative of Article 16(4) of the Constitution of India rather the fixation of such quota for promotion virtually effectuates the equality concept guaranteed under Article 14 and 16(1) of the Constitution of India.
45. That apart, it is also well settled that mere reduction in chances of promotion to the higher post is neither violative of fundamental right guaranteed under Article 16(1) of the Constitution nor it can be held to be violative of vested right or statutory right of employees, therefore, restriction imposed by reducing the chances of promotion of employees does not furnish any cause of complaint to challenge such rules by aggrieved employee like petitioner of the instant case, However the petitioner could not furnish any earlier rules to demonstrate that the rights conferred therein have been taken away to the disadvantage of petitioner by the impugned rules nor any history of service rules and posts in question could be brought to our notice so as to persuade us to take different view in the matter.
46. In view of aforestated reasons and conclusions, further submissions of learned Counsel for petitioner that Junior Engineers and Technical Assistants who possess the bachelor degree in agriculture/civil Engineering have already received accelerated promotion to the post of Soil Conservation Officer and Technical Officer by virtue of proviso to Rule 5 of 1993 Rules. Having received such accelerated promotion to the post of Soil Conservation Officer and Technical Officer there exists no justification for further proviso of accelerated promotion on the basis of such degree to Group 'A' service. Insisting upon a position of better qualification at the stage of direct recruitment may be justified but there exists no justification for such qualification to be possessed by persons who are already in the service as such better qualification would stand substituted by length of service rendered in the department. The experience gained on account of minimum length of service of 14 years in the department to become eligible for promotion to the post of Deputy Director and Project Officer would substitute enough for insisting such qualification, in our opinion, are without any legal basis and appears to be wholly misconceived and misplaced, thus has to be rejected. As indicated herein before, in Roop Chand Adlakha's case Hon'ble Apex Court has upheld the rules providing benefits of accelerated promotion to the degree holder Junior Engineers and Assistant Engineers to the next higher posts and so also in P. Murugesan's case, wherein rules prescribing ratio of 3:1 between graduates and diploma holders and longer qualifying service of diploma holders to become eligible for promotion has been upheld.
47. In our opinion, therefore, there can be a separate consideration for degree holder Bhumi Sanrakshan Adhikari and Technical Officer in the matter of promotion to the post of Deputy Director and Project Officer in Group 'A' service and impugned rules providing a separate quota for them, besides their being eligible along with non-degree holders cannot be held to violative of Article 14 and 16(1) of the Constitution and at the same time fixation often percent separate quota for them does not tantamount to reservation for them and hit by Article 16(4) of the Constitution, thus the impugned rules cannot be found faulty on that score and are well within the authority under law, therefore, has to be upheld.
48. In view of the aforesaid discussions and observations, we do not find any justification to interfere in the impugned rules. The petitioner is not entitled for any relief claimed in the writ petition. Thus writ petition is devoid of merits hence liable to be dismissed. Accordingly the same is hereby dismissed.
49 There shall be no order as to costs.