REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10194 OF 2013

STATE OF UTTARAKHAND & ORS.     … Appellant(s)

VERSUS

S.K. SINGH & ORS.    …Respondent(s)

IA No.88765/2018

WITH

C.A. No. 1317 of 2015 C.A. No. 11307 of 2013 IA No.7/2016

J U D G M E N T

SANJAY KISHAN KAUL, J.

Civil Appeal No.10194/2013

1. The  dispute  pertains  to  the  Irrigation  Department  cadre  of  the

Uttarakhand State, for promotion from the post of Junior Engineer (for

short ‘JE’) to the post of Assistant Engineer (for short ‘AE’), with two

groups  of  these  JEs  arrayed  on  opposite  sides  –  one  having  the

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qualification of Diploma and the other having the qualification of Degree

in Engineering.  The promotion quota (the promotion quota is for AEs -

they are  also  being  directly  recruited)  has  carved out  a  provision for

accelerated promotion to the extent of 7.33% for the JEs holding a more

advanced qualification, of a Degree in Civil Engineering, with which the

JEs holding a qualification of Diploma are aggrieved.

Facts:

2. On the State of Uttaranchal (now Uttarakhand) being carved out of

the State of Uttar Pradesh, an emergent need was felt for appointing inter

alia JEs in different departments of the State and thus, an advertisement

was issued on 27.11.2001, inviting applications on behalf of the Public

Works  Department,  Irrigation  Department,  Rural  Engineering  Service,

Small  Irrigation  Department,  Agriculture  Department,  District  Village

Development  Agency  and  Panchayati  Raj  Department  for  the  said

purpose.   The minimum qualification  provided  was  for  a  Diploma in

Civil/Electrical/Mechanical/Agriculture Engineering.  We are, at present,

concerned  with  the  Irrigation  Department,  where  200  posts  were

advertised for.  These posts were filled in by both, the Diploma-holders

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and the Degree-holders.

3. In order to govern the service conditions of the Engineers in the

Irrigation Department,  the Uttaranchal  Service of Engineers (Irrigation

Department) (Group ‘B’) Rules, 2003 (hereinafter referred to as the ‘said

Rules’) were notified on 18.2.2003 by the State Government, exercising

power under Article 309 of the Constitution of India (hereinafter referred

to as ‘the Constitution’).  The said Rules provided for recruitment to the

next higher post, inter alia to the post of AE (Civil), through the process

of 50% by promotion from the JEs and the balance 50% through direct

recruitment  for  which  the  qualification  was,  inter  alia, a  Degree  in

Engineering.  In this 50% by promotion, there was a further break up

provided, i.e., 40% was to be through the normal route, on the basis of

seniority, subject  to  rejection  of  unfit   and the remaining 10% of  the

promotion quota was given to accelerated promotion.  Out of this 10%

accelerated  promotions,  2.67% was  meant  for  certain  categories,  with

which we are  not  concerned,  while  7.33% was meant  for  JEs  (Civil)

holding  a  Degree  in  Civil  Engineering  with  three  (3)  years’  service,

whereas   normal  promotion  required  a  minimum  service  of  ten  (10)

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years.   An  amendment  was  brought  into  force  on  4.12.2004,  which

sought to change the ratio of the appointment to the post of inter alia AE

(Civil),  thereby  reducing  the  direct  recruitment  quota  to  40%  and

increasing the promotion quota to 60%.  The result was that the normal

promotion quota was made 50% and the additional 10%, in a sense, was

meant  for  accelerated  promotion,  as  in  any  case  the  educational

qualifications for direct recruitment was a Degree in Civil Engineering

and  the  accelerated  promotion  was  based  on  a  Degree  in  Civil

Engineering  as  well.   50%  quota  for  normal  promotion  was,  thus,

incorporated instead of the earlier 40%.

4. The effect of this was that persons who were holding a Degree in

Engineering were entitled to be considered for promotion as AEs with

only three (3) years’ service, as against the requirement of ten (10) years’

service  under  normal  promotion,  but  this  accelerated  promotion  was

confined to 7.33%.

5. We have already stated that the effect of reduction in the direct

recruitment  quota,  from 50% to 40%,  effectively  meant  that  the 10%

reduction  in  quota  of  direct  recruitment,  for  which  a  Degree  is  the

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essential  qualification,  was allotted to  accelerated promotion,  so  as  to

ensure  that  the  normal  promotion  quota  without  the  accelerated

promotion is maintained at 50%.

6. The Diploma-holders in the post of JEs felt aggrieved as it would

result in some of their juniors, who had Degrees, being promoted earlier

and,  thus,  on their  ultimate promotion to  the post  of  AE, would rank

senior to them.  This was also stated in the context of the fact that for

further promotions from AE upwards, the essential qualification was only

a Diploma, without any quota or accelerated promotion being carved out

for Degree holders.   These would be all  promotion posts without any

direct recruitment.

7. The  aforesaid  gave  rise  to  writ  proceedings  being  filed  by  the

Diploma-holders before the Uttarakhand High Court, and in terms of the

impugned order dated 25.8.2011, this accelerated promotion quota was

struck down as violative of  Articles 14 & 16 of  the Constitution, and

certain other directions were issued to work out equities on account of the

promotions which may have already been made.  There are also some

other connected matters, which we will come to later, because they are in

a narrower compass and we have taken  the broad contours of the dispute

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from the main matter in which the judgment was delivered, i.e.,  Civil

Appeal No.10194/2013.

8. The impugned order was, however, stayed, while issuing notice on

2.4.2012.   Subsequent  leave  was  granted  and  this  interim  order  was

maintained.  The result has been that for these last eight (8) years, also,

the Rules have operated as they are.

9. It is in the aforesaid narrow compass that the present appeal has to

be examined.  We have heard learned counsel for the parties and given

our thoughtful consideration to their arguments and the record before us.

Historical Perspectives:

10. We are setting forth certain aspects  of  the former  Rules in  this

behalf,  in view of the great  emphasis laid on the same by the private

respondents (Diploma-holders). In its original  avatar  existed the United

Provinces Service of Engineers (Buildings and Roads Branch) Class II

Rules (hereinafter referred to as the ‘1936 Rules’), which were published

on 6.6.1936.  With the passage of time and different departments coming

into existence, specialised Rules were enacted for different departments,

one of them being the Uttar Pradesh Irrigation Department Civil Engineer

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(Subordinate)  Service  Regulation,  1992 (hereinafter  referred  to  as  the

‘said  Regulations’),  notified  on  3.12.1992  by  the  State  Government,

exercising its powers under the proviso to Article 309 of the Constitution.

The similarity is that the qualification for recruitment as JEs was, once

again, a Diploma in Civil  Engineering.  The Uttar Pradesh Service of

Engineers  (Irrigation  Department)  (Group  ‘B’)  Service  Rules,  1993

(hereinafter referred to as the ‘1993 Rules’) were  notified on 23.4.1993,

and insofar as the posts of AEs were concerned, they were to be filled in

the ratio of 2/3:1/3 by direct recruitment and by promotion, respectively.

The 1/3 promotion quota was again bifurcated into 24% for promotees

with qualification of ten (10) years’ service, while  7.33%  was for the

persons possessing Bachelors Degree in Civil Engineering, who got an

accelerated  promotion  by  being  considered  after  three  (3)  years  of

service.  The remaining percentage was meant for various other cadres.

Once  again,  direct  recruitment  required  qualification  of  inter  alia  a

Degree.   The  scrutiny  of  this  historical  aspect  significantly  shows  a

similar  situation  present  in  Uttar  Pradesh.   The  emphasis  on  some

litigation qua 1936 Rules, is on account of a judgment of the Allahabad

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High Court1,  on a challenge by the degree holders on enhancement of

quota for diploma holders for promotion to the post of AE, opining that

the  fixation  of  separate  quota  for  degree  and  diploma  holders  was

unconstitutional.

The Controversy:

11. The  impugned  judgment  is  quite  elaborate,  discussing  various

possibilities  and  combinations  and  the  judicial  pronouncements  from

time to time.  In para 30 of the impugned judgment, post such discussion,

various principles have been culled out.  We do not consider it necessary

to extract all of them for the debate before us, as reference has been made

to sub-paras 2, 4, 6, 8, 9 & 10 and the same read as under:

“30. From the above decisions, following emerges: …. …. …. …. …. ….

2. Status of similarly placed people cannot be altered even on the ground of educational difference. …. …. …. …. …. ….

4.  People  having  different  educational  qualifications  may  be integrated into one, but even then, it is permissible to treat them differently on the basis of their educational qualifications.

…. …. …. …. …. ….

1  Arunvendra Kumar Garg & Ors. v. State of U.P. & Anr.; 2002 SCC OnLine  ALL 196: (2002) 2 AWC 1489

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6. When Degree holders and Diploma holders are both regarded as fit and, therefore, eligible for promotion, no differentiation can  be  made  between  them  by  laying  down  a  quota  of promotion for each and giving preferential treatment to Degree holders over Diploma holders. …. …. …. …. …. ….

8.  If  the  higher  qualification,  as  that  of  Degree,  is  not contemplated as the required qualification for being appointed in the feeder post and, on the contrary, it is contemplated that a lower  qualification,  as  that  of  Diploma,  will  do,  then  two different periods of experience, for being promoted to the next higher post, is not permissible.

9. If it is contemplated that people with higher qualification, as that of Degree, and also people with lower qualification, as that of Diploma, may be appointed in the feeder post, then there is nothing wrong in fixing different service experience for Degree holders and Diploma holders for promotion to the next higher post.

10.  At the same time, when for  direct  recruitment to a post, Degree is the essential educational qualification, but at the same time,  such  a  post  can  be  filled-in  also  by  promotion,  it  is permissible to provide a higher ratio for Degree holders to be promoted to the said post.”

12. On  the  scrutiny  of  the  parameters  set  out  in  para  30  of  the

impugned judgment, the opinion of the High Court is based on the fact

that since the required qualification for appointment to the feeder post

was only a Diploma, the Rules governing the feeder post did not make

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any distinction between a Diploma-holder and a Degree-holder, and the

fact that any of the persons was holding a Degree could not be said to be

of significance.  Not only that, there was no bar of a higher qualification

to  the  next  higher  post,  where  both,  the  Degree-holders  and  the

Diploma-holders could be promoted.  The requirement of a Degree was

only for  direct recruitment to the post of AEs.  Thus, it was opined that

the Rules could not say that the experience of a Degree-holder shall be

lesser than the experience of a Diploma-holder, for promotion to the next

higher post  of  AE.  Further, it  was observed that  the Rules could not

prescribe a quota for Degree-holders in the feeder post as there was no

intelligible differentia, nor object sought to be achieved by the aforesaid.

13. The  private  respondents  who  are  the  Diploma-holders  have

naturally supported the aforesaid view, which is sought to be assailed by

the appellants/State of Uttarakhand.  The inconsistencies in respect of the

principles culled out  in para 30 of the impugned judgment have been

sought to be pointed out by learned counsel for the appellants.  In this

behalf, it has been submitted that sub-paras 2 and 4 are inconsistent as on

the one hand sub-para 2 states that the status of similarly placed persons

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cannot be altered on the grounds of educational difference, yet sub-para 4

states  that  if  people  having  different  educational  qualifications  are

integrated  into  one,  even  then  it  would  be  permissible  to  treat  them

differently  on  the  basis  of  educational  qualifications.   The  appellant

specifically  sought  to  assail  sub-para  6,  which  concluded  that  if

Degree-holders  and  Diploma-holders  are  both  regarded  as  fit  for

promotion, no differentiation can be made between them by laying down

quota  for  promotion  for  each  and  given  preferential  treatment  to

Degree-holders  over  Diploma-holders.   Sub-para  8  was  assailed  as  it

sought to set forth a proposition that once the higher qualification of a

Degree is not contemplated as a required qualification in the feeder post,

then two different sets of periods of experience cannot be provided as the

qualification to the next higher post.

14. Another aspect of inconsistency which is sought to be pointed out,

is stated to emerge from sub-paras 6 and 9, while assailing sub-para 6.

Sub-para 9 states that if people with both higher and lower qualifications

can be appointed in the feeder posts, then there is nothing wrong in fixing

different service experience for the two, i.e., the Degree-holders and the

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Diploma-holders, for promotion to the next higher post.

15. Learned  counsel  for  the  appellant  also  drew  our  attention  to

sub-para 10, which provides that, when for direct recruitment to a post,

the essential qualification is a Degree, and at the same time the post can

also be filled by promotion, it is permissible to provide a higher ratio for

Degree-holders, to be promoted to the said post.  It is submitted that this

is what has actually been done and thus, conflicting principles have been

culled out from the discussion.

16. On the appreciation of the aforesaid pleas, we do find that there are

inconsistencies in the different principles set forth.  On a query posed to

the learned senior counsel for the private respondents, it was conceded on

the basis of various judicial pronouncements, that the appellant would be

well  within its  right  to provide a higher qualification for  a promotion

post.  Thus, it could be very well said that both, for promotion and for

direct appointment to AEs, Degree could be the essential qualification.

He  further  could  not  dispute  the  proposition  that  there  are  judicial

pronouncements to support, providing for a differential in the period of

service for two different sets of educational qualifications at the time of

promotion.  Thus, in a sense, the appellant would be within its right to

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provide for different periods of experience as JEs for Degree-holders and

Diploma-holders, for the purposes of promotion.  This is apart from the

plea of the appellants that the accelerated promotion is to encourage the

JEs to  acquire  higher qualifications,  and once they acquire  the higher

qualification, whether they possess that qualification at the stage of entry

or  not  would be immaterial  (again a  principle  settled through judicial

pronouncements).  On a specific query being posed, as to what was the

real grievance of the private respondents, learned counsel submitted that

the rub lay in the fact that the implementation of the Rules would result

in persons with Degree occupying the post of JEs, ranking senior to the

persons having Diploma, in the higher post of AEs, despite being junior

to  the  Diploma  holders,  on  account  of  their  having   accelerated

promotion.  Thus, the question would be whether such a grievance can

form  the  basis  of  the  Rule  itself  being  struck  down,  as  violative  of

Articles 14 & 16 of the Constitution.

The precedents:

17. The same set of judicial precedents were cited and debated before

us by both the sides.

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18. The first in the sequence is the judgment of the Constitution Bench

in Mohammad Shujat Ali & Ors. v. Union of India & Ors.2  The judicial

review of comparative merits of different educational qualifications was

debated along with the Rules conferring the right of promotion or the

right to be considered for promotion.  It is in that context, observations

have  been  made  as  to  when  the  Rules  can  be  said  to  suffer  from

infraction under Articles 14 & 16 of the Constitution.  The discussion is

in paras 23 to 28.

19. While recognising that equal protection of law is “pledge of the

protection  of  equal  laws”,  it  was  observed,  “but  laws  may  classify”.

While referring to the observations of Justice Brawer, “the very idea of

classification is that of inequality”, it was recognised that the Court had

tackled the paradox over the years while neither abandoning the demand

for equality, nor denying the legislature the right  to classify.  Thus,  a

middle course of realistic reconciliation was adopted, i.e., the doctrine of

reasonable  classification.   As  to  what  could  be  understood  by  the

expression ‘similarly situated’ was then debated, recognising the right of

the  legislature,  so  that  the  test  of  being  similarly  situated  does  not

2  (1975) 3 SCC 76

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denigrate into a rigid formula, to be blindly and mechanically applied.

The doctrine of classification was not to be carried out to a point where

instead of being a useful servant, it would become a dangerous master as

otherwise, in the words of Y.V. Chandrachud, J. (as he then was) in the

State of Jammu and Kashmir v. Triloki Nath Khosa3 “the guarantee of

equality  will  be  submerged  in  class  legislation  masquerading  as  laws

meant  to  govern  well-marked  classes  characterised  by  different  and

distinct  attainments.”   There  could  not  be  an  overemphasis  on  the

doctrine  of  classification  to  deprive  the  guarantee  of  equality  of  its

spacious content.  The application of this principle was thereafter set out

in para 28, where the earlier judgments have been debated.  We consider

it appropriate to extract the said para 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 [(1968) 1 SCR 407] 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,  [(1973)  3  SCC  592],  a  Central  Health

3  (1974) 1 SCC 19

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Service Rule requiring that a Professor in Orthopaedics must have a post-graduate degree in particular speciality 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 State of Jammu & Kashmir v. Triloki Nath Khosa (supra) 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 such 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 State of Jammu & Kashmir v. Triloki Nath Khosa (supra) and a somewhat similar position  also  obtained in  Union of  India  v. Dr. (Mrs.)  S.  B. Kohli. (supra).  But where graduates and non-graduates are

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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 of fixation 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. When there is a vacancy earmarked for  graduate  Supervisors,  a  non-graduate, Supervisor would be entitled to ask:

I am senior to the graduate Supervisor who is intended to be promoted. I am more suitable than he is. It is no doubt true that I am a non-graduate, but my not being a graduate has not been branded as a disqualification. I am regarded fit for promotion and, like the graduate Supervisor, I am equally eligible  for  being  promoted.  My  technical  equipment supplemented  by  experience  is  considered  adequate  for discharging the functions of Assistant Engineer. Then why am I  being denied the opportunity for  promotion and the graduate Supervisor is preferred?

There can be no satisfactory answer to this question. It must be remembered that many of these non-graduate Supervisors might not have been able to obtain degree in engineering because they came  from  poorer  families  and  did  not  have  the  financial resources  to  pursue  degree  course  in  engineering  and  not because  they  lacked  the  necessary  capacity  and  intelligence. "Chill penury" might have "repressed their noble rage". It is of the essence of equal opportunity for such persons with humble and depressing backgrounds that they should have opportunity,

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through experience or self- study, to level up with their more fortunate  colleagues  who,  by  reason  of  favourable circumstances,  could obtain the benefits  of  higher  education, and if they prove themselves fit and more suitable than others, why should they be denied an opportunity to be promoted in a vacancy  on  the  ground  that  vacancy  belongs  to  Supervisors possessing higher educational qualifications. As pointed out by Krishna Iyer, J., in the State of Jammu & Kashmir v. Triloki Nath Khosa (supra) "the soul of Art. 16 is the promotion of the common  man’s  capabilities,  over-powering  environmental adversities  and  opening  up  full  opportunities  to  develop  in official life without succumbing to the sophistic argument of the elite that talent is the privilege of the few and they must rule". 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. 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 the 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

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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  re-organised  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. Contention E cannot, therefore, prevail and must be rejected.”

20. The  private  respondents  sought  to  take  advantage  of  the

observations of this para as a whole, and more specifically, to the portion

set out in bold.  But yet had to concede that after propounding the social

philosophy,  the  fact  remains  that  the  Constitution  Bench  found  it

difficult, and actually did not give any relief, while quashing the Rule in

question.

21. The private respondents also referred to the judgment of the two

Judge Bench of this Court in Punjab State Electricity Board, Patiala &

Anr. v. Ravinder Kumar Sharma & Ors.4, which had struck down the

4  AIR 1987 SC 367

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Rule in respect of quota being carved out between the Degree-holders

and the Diploma-holders of line men.  However, this would not be of

much  relevance,  as  this  judgment  was  subsequently  overruled  in  P.

Murugesan & Ors. v. State of Tamil Nadu & Ors.5

22. In Roop Chand Adlakha & Ors. v. Delhi Development Authority

&  Ors.6,  promotion  from  different  sources,  prescribing  different

eligibility  conditions  on  the  basis  of  educational  qualifications  and

service  experience  as  being  violative  of  Articles  14  &  16  of  the

Constitution  was  debated.   The  inherent  distinction  between  a  person

with a Degree and one with merely a Diploma was stated to be much too

obvious.  But,  whether that difference has a reasonable relation to the

nature of the office to which the promotion is contemplated was stated to

be a different aspect.  What was observed was that this may vary from

case  to  case,  and difference  in  qualification  has  to  have  a  reasonable

relation to the nature of duties and responsibilities that go with, and are

attendant upon the promotion post.  Thus, “to overdo classification is to

undo  equality.”   The  relevant  aspect  found  in  that  was  that  different

standards and conditions for eligibility were prescribed with a view to

5  (1993) 2 SCC 340 6  1989 Supp (1) SCC 116

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inject a higher technical quality in the promotional cadre, based on the

recommendations of the committee.  The Rules were, thus, once again

upheld.  The aspect which was stated to be of significance by learned

counsel for the private respondents was that in the given facts of the case

before us, there were no material placed to show the connect between the

higher qualification and the greater efficiency in the promotional post.

Now returning to the P. Murugesan7 case, the amended Rules introduced

a  ratio  of  3:1  between  graduate  AEs  and  Diploma-holders  JEs  for

promotion to the post  of  Assistant  Executive Engineers.   These Rules

were held not to be violative of Articles 14 and 16 of the Constitution,

opining  that  the  Rule  making  authority  was  competent  to  impose  a

complete bar, as well as partial restrictions on the category of promotees,

on the basis of educational qualifications.

23. It  may  also  be  noticed  that  the  Rule  making  power,  under  the

proviso  to  Article  309  of  the  Constitution  has  been  emphasised  as

legislative in nature and thus, the test to determine the constitutionality of

any provision of such Rule is whether the legislature was competent to

enact such a provision.

7  supra

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24. On referring to  the earlier  judgments,  including in  the  State  of

Jammu and Kashmir v. Triloki  Nath Khosa8 case, it was, once again

emphasized  that  minute  and  microscopic  classification  should  not  be

permitted,  nor should the Court  countenance,  in the words of Krishna

Iyer, J. “mini-classifications based on micro-distinctions.”  It is, however,

also  noticed  that  right  from  1974,  i.e.,  since  the  decision  of  the

Constitution  Bench in  State  of  Jammu and Kashmir  v. Triloki  Nath

Khosa9 case,  this  Court  had been  uniformly holding  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.  The conclusion, thus, was that if

the  Diploma-holders  can  be  barred  altogether  from promotion,  it  was

difficult  to  appreciate  how and why the rule  making authority  can be

precluded  from  restricting  the  promotion.   Thus,  “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

8  supra 9  supra

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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.”

25. The last judgment to be cited, to be considered by us, is of the two

Judges in M. Rathinaswami & Ors. v. State of Tamil Nadu & Ors.10   In

a  case  of  an  integrated  list  of  seniority  between  direct  recruits  and

promotees,  preferential  treatment,  thereafter,  based  on  educational

qualifications was held as valid for  considering promotion.  However,

among  equally  qualified  candidates,  there  could  be  no  further

classification.  The similarity of factual matrix is reflected, as the Junior

Assistants  holding  the  post  were  both  graduates  and  post-graduates,

though the minimum educational qualification was SSLC.  From the post

of  Junior Assistants,  the promotion was to the post  of  Assistants,  and

there could also be direct recruitment through competitive examinations.

The  minimum  qualification  for  direct  recruitment  of  Assistants  was

graduation.  The promotion of Assistants to the post of Deputy Tahsildar

was in question.  The directly recruited Assistants were given preferential

treatment by making them eligible for promotion as Deputy Tahsildar on

10  (2009) 5 SCC 625

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completion of five (5) years as Assistants, while placing them above the

senior, graduate promotee Assistants.   In that context,  it was observed

that once the directly recruited Assistants have been integrated into one

cadre, there could not be a further classification between those who had

acquired the graduation qualification, whether before joining as Junior

Assistants or thereafter.  It was also left to the State to decide whether

their qualification has a reasonable relation to the nature of duties and

responsibilities of the promotional post.  Similarly, regarding the question

whether the difference in educational qualification is sufficient to give

preferential treatment to one class of candidates against another, it was

opined to be ordinarily left to the executive authorities to decide, as they

have expertise in administrative matters and, ordinarily, it would not be

proper  for  the  court  to  sit  in  appeal  over  their  decisions,  unless  it  is

something totally arbitrary or shocking.

Conclusion:

26. The spectrum of judicial opinions referred to aforesaid leaves us

with little doubt that though equality is the very bulwark of the provisions

of the Constitution, in service jurisprudence, classifications are a matter

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of  necessity  and  judicial  pronouncements  have  sought  to  balance  the

equality principle with the principle of classification, dependant on the

nexus for  making the classification.   Higher educational  qualifications

have been repeatedly emphasized as an aspect which can give exclusive

promotion,  earlier  promotion  or  for  that  matter,  as  in  this  case,  an

accelerated  promotion.   A higher  degree  of  qualification  intrinsically

would bring in certain skills, though undoubtedly, that should be useful

and  have  a  nexus  with  the  job  being  performed.   As  to  who should

examine this nexus, that has been left to the wisdom of the administrative

authorities, who are best equipped to do so11.

27. It  has  also  been  opined  that  even  where  persons  having  two

different  qualifications  are  given  the  opportunity  of  promotion,  there

cannot be an absolute equality for the reason that the administration may

consider  giving  the  lesser  qualified  an  opportunity  of  promotion  on

different terms, rather than completely prohibiting them from promotion.

28. We are conscious of the fact that in further posts, higher than  AE,

there is no distinction between  persons having different qualifications.

There are no direct appointments.  The posts are filled in only through

11  M. Rathinaswami & Ors. v. State of Tamil Nadu & Ors. (supra)

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promotions.  The question is what is really being done?  In our view, all

that has been done is that, at a particular promotion stage, in the wisdom

of the administration, recognising higher skills developed through higher

qualifications,  and  as  an  incentive  to  others  to  acquire  these  higher

qualifications, an accelerated promotion on a small percentage of posts

had been granted.

29. We did put to the learned counsel for the private respondents if

they could have been shut out from promotion,  or if  the time periods

could have been different for promotion, then the result would have been

the same as their grievance today, i.e., some of the Degree-holders would

rank higher than the Diploma-holders.  Thus, this is not something out of

the ordinary which has happened, or would result in a situation which can

be categorised extraordinary by reason of accelerated promotion to the

Degree-holder.

30. We have  noticed  another  important  aspect,  i.e.,  that  the  direct

recruitment to the post of AE required a candidate to be a Degree-holder.

50% of the posts were reserved for  Degree-holding direct recruits.  In the

50% promotion quota, a 10% promotion quota was carved out, leaving

only 40% for promotion through the normal route.   Possibly with the

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intention of obviating  any grievance which the promotees may have, the

normal promotion route was sought to be maintained at 50%, without any

accelerated promotion in that portion, by bringing in 10% from the direct

recruitment  quota  to  the  promotion  quota,  and  that  being  utilised  for

accelerated promotion, for promotees with a Degree.  Had this quota not

been there at all, whether earlier or later, but the direct recruitment in

promotion quota had been maintained in equal ratio, the Diploma-holders

could, in any case, have had no grievance.  The bringing forth from the

direct recruitment quota (for which the qualification is the Degree) to the

promotion quota and giving that through accelerated promotion for such

persons who have a degree can, thus, hardly be said to have any intrinsic

defects which could violate Articles 14 & 16 of the Constitution.

31. The historical perspective also cited before us hardly supports the

private  respondents  as  even  the  State  of  Uttar  Pradesh,  as  it  existed

earlier,  and  the  Rules  as  they  existed  then,  provided  for  such  7.33%

quota, which was never assailed by any party.

32. We may also add before ending, that there exist inconsistencies,

which we have pointed earlier in para 16, in the principles laid down in

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the impugned judgment in para 30.

33. We  are,  thus,  unequivocally  of  the  view  that  the  impugned

judgment cannot be sustained and the challenge to the Rule is misplaced.

The  consequence  would  be  the  dismissal  of  the  writ  petition  by  the

Diploma-holders  and  the  appeal  of  the  Government  being  allowed.

Parties are left to bear their own costs.

Civil Appeal No.1317/2015

34. The  appeal  is  dismissed  in  view  of  the  order  passed  in  CA

No.10194/2013 as the appellant  sought  a greater  relief  than even that

which was granted in the impugned order.

Civil Appeal No.11307/2013

35. The appeal concerns the Uttar Pradesh Public Works Department

Assistant Engineers (Civil) Services Rules, 2003.  The relevant portion of

the  Rules,  providing  for  accelerated  promotion/sub  quota  for

Degree-holders was struck down, relying upon the judgment of the High

Court in WP No.267/2010 (S/B), which order has been set aside by us in

CA No.10194/2013.

36. The result of the aforesaid is that this appeal is allowed and the

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impugned order set aside, upholding the relevant Rule.

IA No.88765/2018 in CA No.10194/2013 IA No.7/2016 in CA No.11307/2013

37. In view of the disposal of the appeals, no further orders are called

for on these applications and the same stand disposed of.

...……………………………J. [Sanjay Kishan Kaul]

...……………………………J. [M.R. Shah]

New Delhi. October 14, 2019.

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVILAPPELLATE JURISDICTION

CIVIL APPEAL NO.12020-21/2014

AJAY BHATT     … Appellant

VERSUS

STATE OF UTTRAKHAND & ORS.    …Respondent(s)

O R D E R

Civil Appeal No.10194/2013

1. The impugned order is based on the judgment of the High Court,

which has been set aside by us today in Civil Appeal No.10194 of 2013.

Learned counsel for the appellant  stated that were we to set aside the

impugned order  in  Civil  Appeal  No.10194 of  2013 this  matter  would

have  to  be  remitted  back  for  consideration  as  there  would  be  other

consequences which would have to be examined.

1

2. In view of the aforesaid, we set aside the impugned order and remit

the matter back for consideration in the conspectus of our judgment in

Civil Appeal No.10194 of 2013.

...……………………………J. [Sanjay Kishan Kaul]

...……………………………J. [M.R. Shah]

New Delhi. October 14, 2019.

2