IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  17974   OF 2017 (Arising out of S.L.P.(C) No. 19262 of 2016)

MAHARASHTRA FOREST GUARDS AND FORESTERS UNION           ...  APPELLANT (S)

VERSUS

THE STATE OF MAHARASHTRA AND OTHERS               ... RESPONDENT (S)

J  U  D  G  M  E  N  T

KURIAN, J.:

Leave granted.  

2. The short but complex question arising for consideration in

this case is whether the restriction introduced on the basis of

educational  qualification  for  participating  in  a  Limited

Departmental Competitive Examination (hereinafter referred

to as “LDCE”) violates Articles 14 and 16 of the Constitution

of India.

3. Undisputed facts of the case: The educational qualification

for appointment to the post of Forest Guard in the Forester,

Forest  Guard,  Ranger-Surveyor,  Surveyor,  Head  Clerk,

Accountant and Clerk-cum-Typist (Recruitment) Rules, 1987

(hereinafter referred to as “the Recruitment Rules”) is Higher

REPORTABLE

Secondary  School  Certificate  (hereinafter  referred  to  as

“HSSC”). It is a feeder category for promotion to the post of

Forester.  The  relevant  part  of  the  Recruitment  Rules,  as

amended in 2013, read as follows :

“Rule -7. (1) Appointment to the post of Forester in the Forest Department shall be made either:-

(a)  by  promotion  of  a  suitable  person  from amongst  the  persons  holding  the  post  of Forest Guard on the basis of seniority as per the circle gradation list and subject to fitness, having  not  less  than  three  years  regular service in that post; or

(b) By  selection  of  a  suitable  person  from amongst  the  persons  holding  the  post  of Forest Guard, on the basis of common merit list  prepared by  the   Additional  Principal  Chief  Conservator  of Forests (Administration  Subordinate Cadre), Maharashtra State,  Nagpur,  on the basis  of result  of  the  “Limited  Departmental Competitive Examination”,  conducted by the Chief Conservator of Forests (Education and Training), Pune on the basis of rules made for the  Limited  Departmental  Competitive Examination by the Government,  from time to time.

(2) For appearing in the examination the candidates shall, --

(a) have completed five years of regular service as Forest Guard in the Forest Department;

(b) possess a degree of a statutory university or any  other  qualification  declared  by  the Government to be equivalent thereto;”

  (Emphasis supplied)

4. By the amendment introduced in the Recruitment Rules, 75

per cent of the posts in the category of Forester are to be

filled up on the basis of seniority-cum-fitness (Rule 7(1)(a)).

The remaining 25 per cent is to be filled up on the basis of

the LDCE (Rule 7(1)(b)).

5. Two main conditions have been prescribed to participate in

the competitive examination – (i) the candidate should have

completed minimum five years of  service as Forest Guard

and  (ii)  the  candidate  should  be  a  graduate.  It  is  the

contention of the appellant that as far as the first condition is

concerned, the Department is well within its competence to

prescribe  eligibility  of  minimum  experience  for  a  Forest

Guard to get promoted as Forester even on the basis of the

competitive examination since the post of Forester requires

experience in  service and exposure in  the field.  However,

introducing a further restriction on the basis of educational

qualification to participate in the LDCE is discriminatory.

6. The  contention  of  Shri  Shekhar  Naphade,  learned  Senior

Counsel appearing for the State is that the whole purpose

behind the amendment was to introduce young blood in the

post  of  Forester  where  they  have  to  undertake physically

challenging  responsibilities  as  well,  and  that  is  why

preference is sought to be given to graduates.

Laudable may be the object but the implementation of the policy

behind the object can only be in accordance with law. If the young

graduates  are  otherwise  intellectually  sharp  and  educationally

proficient,  they  would  prove  to  be  more  meritorious  in  the

competitive LDCE. As the Rules now stand, opportunity has to be

thrown open to the youngsters who are non-graduates also in the

seniority list but who have completed the required number of years

of service and yet are otherwise alert, efficient and proficient. Denial

of the same would certainly be violative of Articles 14 and 16 of the

Constitution.

7. We are  afraid,  the  reference  made by  the  learned Senior

Counsel to the Constitution Bench decisions of this Court is

of  no  avail.  There  is  no  quarrel  with  the  well-settled

proposition that there can be a classification based on the

educational  qualification  if  so  warranted  by  the

circumstances. But that is not what has been done in the

present case. Based on the educational qualification, a class

within a class has been created violating the guarantee of

equality by restricting the participation in the LDCE only to

graduates.

8. The Constitution Bench Judgment of this Court in  Roshan

Lal  Tandon v.  Union  of  India  1,  is  a  case  where  direct

1  (1968) 1 SCR 185

recruits  i.e.  apprentice train  examiner,  and promotees i.e.

skilled artisans were integrated into one group as Grade-‘D’.

Thereafter,  80 per cent vacancies in Grade-‘C’ were to be

filled up from class of apprentice train examiners and the

remaining 20 per cent from among the train examiners on

the  basis  of  selection.  That  was  held  to  be  bad   on  the

ground  that  “once  the  direct  recruits  and  promotees  are

absorbed in one cadre, they form one class and they cannot

be discriminated for the purpose of further promotion to the

higher grade-‘C’”.

9. In State of Mysore and another v. P. Narasing Rao  2, the

same  Constitution  Bench  held  the  higher  qualification  of

S.S.L.C.  to  be  a  relevant  consideration  for  fixing  higher

pay-scale  than  that  of  non-matriculate  tracers.  That

classification,  on  the  basis  of  higher  qualification,  was

upheld.  

10. The State of Jammu and Kashmir v.  Shri Triloki Nath

Khosa and others  3 is a later Constitution Bench decision of

1973 where  Roshan Lal (supra) and  Narsing Rao (supra)

have been discussed.  The question posed in  Triloki Nath

Khosa (supra)  is  as  follows  –  “if  persons  drawn  from

different sources are integrated into one class, can they be

2  (1968) 1 SCR 407 3  (1974) 1 SCC 19

classified for  purposes  of  promotion on  the  basis  of  their

educational  qualifications?”.  That  was  answered  in  the

affirmative.   This  was  a  case  where  promotion  from  the

integrated  cadre  of  Assistant  Engineers  to  Executive

Engineers  was  limited  to  persons  possessing  a  Bachelors

Degree  in  Engineering  or  equivalent  with  seven  years

service. It was held :

“31.  Classification,  however,  is  fraught  with  the danger  that  it  may produce artificial  inequalities  and therefore, the right to classify is hedged in with salient restraints;  or  else,  the  guarantee  of  equality  will  be submerged in  class  legislation masquerading as  laws meant to govern well marked classes characterized by different  and  distinct  attainments.  Classification, therefore,  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.

xxx  xxx      xxx  xxx

50.  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.”

11. There was also no sub-classification as in the instant case.

Having upheld the Rule, it was further held at paragraph-51

as follows:

“51. But we hope that this judgment will not be construed  as  a  charter  for  making  minute  and microcosmic classifications. Excellence is,  or ought to be,  the goal  of  all  good governments and excellence and equality are not friendly bed-fellows. A pragmatic approach  has  therefore  to  be  adopted  in  order  to harmonize the requirements of public services with the aspirations  of  public  servants.  But  let  us  not  evolve, through  imperceptible  extensions,  a  theory  of classification  which  may  subvert,  perhaps  submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left  to  ask  in  wonderment:  What  after  all  is  the operational residue of equality and equal opportunity?”

    (Emphasis supplied)

12. The concurring words of Krishna Iyer, J. at paragraphs-57 and

58 are also relevant:  

“57.  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. If in this case Government had prescribed that only those degree holders who had secured over 70 per cent  marks  could  become Chief  Engineers  and those with 60 per cent alone be eligible to be Superintending Engineers or that foreign degrees would be preferred we would have unhesitatingly voided it.  

“58. The role of classification may well recede in the  long  run,  and  the  finer  emphasis  on  broader equalities  implicit  in  the  concluding  thought  of  the leading judgment will abide.  The decision in this case should not — and does not — imply that by an undue accent on qualifications the Administration can cut back on the larger tryst of equalitarianism or may hijack the founding  and  fighting  faith  of  social  justice  into  the enemy camp of intellectual domination by an elite. The

Court, in extreme cases, has to be the sentinel on the qui-vive.”

                                                  (Emphasis supplied)

It may be seen that it is a case where promotion to the post of

Executive Engineer and above was wholly assigned to graduates, a

classification based on educational  qualification.  There is  no such

reservation or even a quota reserved for graduates in the instant

case.

13. T.R. Kothandaraman and others v.  Tamil Nadu Water

Supply and Drainage BD and others  4 discussed all  the

previous  judgments  on  classification  and  held  at

paragraph-13 as follows:  

“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 in  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.”

14. Having  held  so,  the  legal  position  was  summarised  at

paragraph-16, which reads as follows:  4  (1994) 6 SCC 282

 “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, but 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.”

                                                                                         (Emphasis supplied)

15. It was a case where the validity of the Rule which prescribed

ratio of 3:2 for direct recruits and promotees - the former

being degree holders and latter being diploma holders was

challenged  as  violative  of  Articles  14  and  16  of  the

Constitution  of  India.  It  was  held  that  higher  educational

qualification  has  relevance  in  so  far  as  holding  of  higher

promotional  post  is  concerned  in  view  of  the  nature  of

function and duties attached to the post.  Still  further,  this

Court  held  that  prescribing  a  lesser  quota  for  diploma

holders does not suffer from such an infirmity as to make a

diploma holder totally unfit for holding the post and hence

the  ratio  was  not  “inequitable  so  as  to  mock  at  the

guarantee of equality”.  

16. The factual and legal position in the instant case is entirely

different. There is no quota reserved for the graduate Forest

Guard for promotion to the post of Forester. Seventy-five per

cent  of  the  posts  are  to  be  filled  through  the  regular

promotion channel  based on seniority  and twenty-five per

cent is  “by selection of suitable persons from amongst the

persons  holding  the  post  of  Forest  Guard,

on  the  basis  of  common  merit  list  prepared by  the   

Additional  Principal  Chief  Conservator  of  Forests

(Administration   Subordinate  Cadre),  Maharashtra  State,

Nagpur,  on the basis of result of the “Limited Departmental

Competitive Examination. .....”.

17. The challenge is on the further rigor put on the eligibility to

appear in the LDCE. The whole purpose of the LDCE is to

encourage  and  facilitate  the  Forest  Guards  to  get

accelerated promotion on the basis of merit. Since seniority

is  the criterion for  promotion to three-fourth of  the posts,

one-fourth is  given a chance to compete in a competitive

examination.  It  is  also to be noted that there is  no quota

prescribed on the basis of higher educational qualification.

The situation would have been different if, in the first place,

there had been a classification wherein 75 per cent of the

posts have to be filled based on seniority and 25 per cent

reserved for graduates and again subject to inter-se merit in

the competitive examination. That is not the situation in the

present case. The LDCE is meant for selection for promotion

from the entire lot of Forest Guards irrespective of seniority

but  subject  to  minimum  five  years  of  service.  In  that

situation, introducing an additional restriction of graduation

for participation in the LDCE without there being any quota

reserved for graduates will be discriminatory and violative of

Articles 14 and 16 of the Constitution of India since it creates

a class within a class. The merit of the 25 per cent cannot be

prejudged by a sub-classification. It violates the equality and

equal  opportunity  guarantees.  The  Forest  Guards,

irrespective of educational qualifications, having formed one

class for the purpose of participation in the LDCE, a further

classification  between  graduates  and  non-graduates  for

participating  in  the  LDCE is  unreasonable.  It  is  a  case  of

equals being treated unequally.  

18. Rule  7(2)  of  the  Recruitment  Rules  to  the  extent  that  it

imposes  the  requirement  of  being  a  graduate  is  declared

unconstitutional. However this judgment shall not affect the

promotions  already  made.  But  for  further  promotions,  the

LDCE shall be held afresh granting opportunity to all eligible

Forest Guards.

19. The appeal is allowed as above. There shall be no order as to

costs.   

...........................J.                           (KURIAN JOSEPH)

...……………………J.                   (R. BANUMATHI)

NEW DELHI; November 3, 2017.  

ITEM NO.1501               COURT NO.5               SECTION IX                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C)  No(s).  19262/2016 MAHARASHTRA FOREST GUARDS AND FORESTERS  UNION   Petitioner(s)                                 VERSUS THE STATE OF MAHARASHTRA AND ORS.    Respondent(s) Date : 03-11-2017 This petition was called on for Judgment today.   For Petitioner(s) Mr. Satyajit A. Desai, Adv.                       Ms. Anagha S. Desai, AOR                     For Respondent(s) Mr. Shivaji M. Jadhav, Adv.  

Mr. K. Parameshwar, Adv.  Ms. Astha Deep, Adv.  Mr. Brij Kishore Shah, Adv.  For M/S.  S.M. Jadhav And Company, AOR

                                        Mr. Nishant Ramakantrao Katneshwarkar, AOR

Ms. Deepa Kulkarni, Adv.  Mr. Somiran Sharma, AOR

                    Hon'ble Mr. Justice Kurian Joseph pronounced the reportable

Judgment  of  the  Bench  comprising  His  Lordship  and  Hon'ble  Mrs. Justice R. Banumathi.   

Leave granted.   The appeal is allowed.   Pending Interlocutory Applications, if any, stand disposed of.

(JAYANT KUMAR ARORA)                              (RENU DIWAN)    COURT MASTER                                ASSISTANT REGISTRAR

(Signed reportable Judgment is placed on the file)