H.S.Sahni and others vs State of J & K

Kawoosa, J.—On the examination of the constitutional validity of Note 3 appended to schedule HA of SRO 180 of 1997, governing the

Engineering Subordinate Services, difference of opinion has arisen between two brother Judges of this court while sitting in a Division Bench. The

Division Bench, comprising brother A.K.Goel J and brother O.P.Sharma J., was hearing a Letters Patent Appeal. Whereas brother Goel J has

held the aforesaid Note 3 of SRO ISO of 1997 as intravires, brother Sharma J has held it to be ultra vires the constitution Divergence of opinion

between the two brother Judges has resulted into formulation of a point of reference under subrule 2 of Rule 23 of the Jammu and Kashmir High

Court Rules as follows:

Whether Note 3 of Schedule IIA of SRO 180 of 1997 is intra vires or not?"" The reference has ultimately landed in my court to decide it as third

Judge.

Facts have been detailed out by both the brother Judges in their respective judgments. However, I think that the facts barely needed to

appreciate the point of reference are necessary to be given here.

The Jammu and Kashmir Engineering (Subordinate) Service Recruitment Rules, 1997 have been notified vide SRO 180 dated 26th May, 1997.

Executive Cadre of the Service in terms of the aforesaid Rules includes Engineers GradeI and GradeII. Method of Recruitment to the service is

prescribed in Schedule HA appended to the aforesaid Rules. The only source of entry into the service of GradeI Junior Engineers is by promotion

from the cadre of Junior Engineers GradeII the Degree holder Junior Engineer GradeII become eligible for promotion to Junior Engineer GradeI

after 5 years, while the Diploma holder Junior Engineers GradeII become eligible for such promotion to Junior Engineer GradeI after 10 years. As

regards the appointment to Junior Engineer GradeII, the Rules provide 90% of the posts to be filled, up by direct Recruitment from amongst the

candidates possessing 3 years Diploma in Civil/Elect/Mech Engineering or degree in the same disciplines of Engineering. Note 3 appended to

Schedule IIA under the column ""Method of Recruitment"" against Class III posts i.e. Junior Engineering GradeII, reads as under:

Note 3. The appointment of Junior Engineer to GradeII shall be made in the ratio 1:3 between degree and diploma holders respectively.

The above quoted Note 3 appended to schedule IIA has offended the Degree holder Engineers. Consequently, they challenged it through the

medium of a writ petition (OWP No.667/97). The learned writcourt disposed of the writ petition directing the official respondents to treat the writ

petition as a representation and take a decision thereon in accordance with law within six months.

The order of the writcourt was questioned before the Division Bench by the medium of Letters patent Appeal. The Division Bench Proceeded

to decide the case as a whole while dealing with the Letters Patent Appeal, and the two brother Judges, as said above, delivered two dissenting

judgments, culminating into the present reference. Heard arguments.

The case of the Degree holders isthat Note 3 appended to Schedule HA is ultra vires the Constitution as, according to them, the ratio 1:3 fixed

for purposes of recruitment between them and the Diploma holders is not only arbitrary and unreasonable, but has no nexus with the object of

classification based on educational qualification. It is to discourage the attainment of higher qualifications. They have urged that higher qualifications

and better professional training should have been the criteria taken into account by the concerned functionaries of the State Govt. while framing the

rules. According to them, the ratio for purposes of appointment to junior Engineer GradeII between them and the Diploma holders should have

been 3:1 instead of 1:3 as provided in the aforesaid Note 3. Their claim is based on the fact that a Degree holder obtains the degree in Engineering

7 years after Matriculation; whereas the Diploma holder gets the Diploma only 3 years after Matriculation. Their contention is that only efficiency

and high technique in the Engineering Services should be the object for making any classification with regard to the service. This could give a fillip

to the superior Engineering Service. It is pleaded that the ratio in question does not have any reasonable nexus with the object of efficiency.

The contention put across is that Diploma holders have only one point of entry into the Engineering Services. Secondly, they obtain Diploma in

Engineering only after three years of Matriculation so their production rate is more than double the Degree holders in a given period of time. In

view of their being available in plenty, they should get a preferential treatment in entering in to the Engineering in Services. Therefore, according to

Mr. Kohli S.C. for the Diploma holders, the ratio of 1:3 is a valid classification and does not offend Articles 14 and 1(S of the Constitution.

It would be in place to extract below the observations made and views taken by the two brother Judges in their respective judgments on various

issues argued before them:

Observation and views of brother Goel J: ""Validity of ratio fixed as 1:3 between degreeholders and diplomaholders is to be examined in the light of

aforesaid law as applicable to the facts of present cases. As already noticed, for a diploma holder only entry point is to the post of Junior Engineer.

He cannot venture into the job of Assistant Engineer, or f6r that matter, where qualification prescribed is higher. It could not be disputed during the

course of hearing of this appeal by the learned counsel appearing for the appellants that this position is factually not correct. On the other hand a

degreeholder in addition to being eligible for being considered and appointed as Junior Engineering, is also entitled to be considered for the post of

Assistant Engineer though Public Service Commission which is a gazetted post. In addition to this, on account of his being a graduate Engineer, a

degreeholder gets eight increments when he joins as a junior Engineer which benefit is not to a diplomaholder, who when considered for promotion

to the post of Assistant Engineer must have put in requisite number of years of service as Junior Engineering against 20 posts out of 100 of

Assistant Engineer.

It cannot be said that there is any inequality of opportunity, muchless discrimination while fixing the ratio by means of impugned SRO between the

two sources. Similarly, Article 16(1} does not prohibit reasonable classification based on reasonable tests. Thus it cannot be said that the ratio

fixed in the impugned SRO is hit by Article 14 or 16 of the Constitution of India.

It may also he worthwhile to mentioned here that reservation, if any, is provided to the degreeholder Engineers to the extent of 25% by fixing the

ratio of 1:3 between them and diplomaholders, in this view of the matter, the argument that un equals are being put at par does not hold good...

Another reason to turn down the plea of reversing the ratio from 1:3 to 3:1 amongst degreeholders and diplomaholders is that it will lead to virtual

unemployment of the latter category. This is so when the stand of the appellants is that number of candidates passing out as diplomaholders is

double as compared to degreeholders in the same period. This plea instead of achieving any object would rather defeat the directive principle of

state policy enshrined under Article 41 of the Constitution of India which amongst other things speaks of state providing within the limits of its

economic capacity and development to make effective provisions for securing the right to work.

It is nobody's case in the present appeal that diplomaholders do not either possess or fulfill basic minimum qualification to the post of Junior

Engineering, whole thrust of the case of the appellants is that because they possess higher qualification so ratio fixed in the SRO needs to be

reversed.

Observations and views of brother Sharma J: ""Mere fixing ratio in which recruitment is to be made after grouping them together amounts to

reservation which is not permissible under Article 16 of the Constitution. What is the basis for fixing the ratio at the entry level is neither traceable

nor has been justified on any other ground.

The only justification offered is number of unemployed diploma holders being more, higher percentage has been reserved for them. However,

hitherto classification on the basis of higher educational qualification has been upheld by the Apex court in a catena of decisions only in the matter

of promotion to higher posts or for giving higher pay scales. No decision of any court dealing with the reservation of posts at the entry level on the

basis of qualification was cited at the bar and I confess my inability to find one despite whatever little effort I could make.

If one is to go by the oral submissions made by the learned Advocate General, the only justification is to provide additional avenues of entry in

Government service for diploma holders. This by itself is sufficient to annual the Note because such a reservation is not contemplated by Article

Moreover, so far higher educational qualification has been held to be a permissible basis of classification only to achieve efficiency in service

and not to provide employment. This cannot be justified in favour of those possessing lesser qualification because efficiency in public service cannot

be Compromised.

In case the ratio of 1:3 fixed for degree and diploma holders as fixed by Note 3 for direct Recruitment in the lowest rung of Engineering service is

maintained, it will not only affect efficiency in service, but also play down the importance of education as if the higher education is a discount. The

fact that diploma holders require 10 years experience as Junior Engineering as against 5 years for promotion to the post of Junior Engineer GradeI

as accepted in the rules itself stares at the aforesaid provision providing twothird reservation for diploma holders. So the ratio in which the degree

and diploma holders are to be recruited in service does not satisfy the condition as it is neither founded on any intelligible differentia to distinguish

them when they have been grouped together for eligibility to the post, nor the differentia has any rational nexus to the object sougth to be achieved

which is constitution and recruitment to the Engineering Service/

It is worth mentioning here that in their writ petition, the Degree holders have prayed for quashment of the aforesaid Note 5 appended to

Schedule IIA annexed with SRO ISO of 1997. This is the. main prayer made in the writ petition. The second prayer for the issuance of the writ of

mandamus has been by way of a consequential relief. Since the brother Judges arc at poles apart in their views regarding the Constitutional validity

and reasonableness of the impugned Note 3 of the SRO, the matter, therefore, calls for a fresh exercise on various propositions of law emerging

form the rival arguments and plea of the parties. In my view, the answer to the question involved and emerging from the rival arguments:

Whether classification between Diploma Holder and Degree Holder Engineers based on educational qualification is permissible?

Whether such classification is permissible at the time of initial Recruitment in a public service? and

Whether the impugned Note 3 providing inferior qualification as the basis of classification with the object of removing and/or reducing

unemployment is constitutionally valid.

It is well settled now that though Article 14 of the Constitutional forbids class legislation, it does not forbid reasonable classification. When any

impugned Rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be (Sustained) if two tests are satisfied.

The first one is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped

together from others left out of the group; and the second one is that the differentia in question must have a reasonable relation to the object sought

to be achieved by the rule or statutory provision in question. In other words, there must be some rational nexus between the basis of classification

and the object intended to be achieved by the statute or the rule.

The Apex court in a catena of authorities has examined the question of classification based on qualification and has held it to be valid. Way

back on 1962, the case ""General Manager Southern Railways and another Vs. Rangacheri"" (AIR 1962 SC 1) came up before the Apex Court

and it was held that classification on the basis of education is valid. Again in case ""Govind Dattaray Kelter and others Vs. Chief Controller of

Imports and Exports and others"" (AIR 1967 SC 839), the Apex Court examined the same question and held that classification is prima facie valid

unless it is otherwise shown to be unreasonable and violative of Article 16 of the Constitution. Onus lies on those who challenge its validity.

Similarly, in ""S.G.Jaisinghani Vs. Union of India and others"" (AIR 1967 SC 1427) classification on the basis of qualification has been a held

iniravires. Identical view was taken by the Apex Court in the following cases also:

i). ""State of Mysore and another Vs. R.Narasinga Rao"" (AIR 1968 SC 349);

ii). ""The State of J and K Vs. Triloki Nath Khosa and others"" (AIR 1974 SC 1);

iii). ""Y. Srinivasa Rao Vs. J.Veeraiah and others"" (AIR 1993 SC 929);

iv). ""RoopChandAdlakha and others Vs. Delhi Development Authority and others"" (1989 Supp(l) SCC 116);

v). ""T.R.Kothandaraman and others Vs. Tamil Nadu Water Supply and Drainage BD and others"" (1994 (6) SCC 282); and

vi). ""Nageshwar Prassad and others Vs.Union of India and others"" (1995 Supp 4 SCC 718).

In light of the fact that classification on the basis of educational qualification has been held to be valid by the Apex court, I need not go into this

question. As a matter of fact, the learned counsel for the parties are not at variance on this question.

The second question is whether such classification is permissible at the time of initial recruitment in public services. The challenge to the

impugned rule is essentially made on the grounds that the quota by way a reservation provided to Diploma holders at the entry point in the service

is violative of Articles 14 and 16 of the Constitution. Mr. D.C.Raina, learned Counsel for the Degree holders has argued that such classification is

not permissible at all at the time of initial Recruitment in public service. His contention Is that the classification no doubt, is allowed but only for

purpose of giving promotions and restricting the promotions in order to create efficiency in public services.

I have, however, failed to persuade myself to agree with the arguments of learned counsel for the Degree holders or any proposition based on such

argument. It is so, because it is Article 16 of the Constitution only on which the classification is founded and this Article provides equal opportunity

for all citizens in matters relating to employment i.e. appointment to any office or to promotion matters from one office to another office thereunder.

It is a fact that all the cases which have come before the Apex Court for the examination of such classification related to promotion matters only.

Right from 1962 till now, the question before the Apex Court in the various cases cited supra was only regarding the promotions. Squarely to say,

classification regarding the initial appointment to a service has not been the point involved. It, however, does not mean that the Apex Court has laid

down any law against this, I am saying so because neither the counsel for the parties have cited any such case before me, nor have I ever come

across any such judgment. It is also a fact that in various cases the Apex court has clearly held that classification with regard to the promotions is

allowed. As the question of initial recruitment in the cases cited before me was not before the Apex Court, so their lordships have not gone to this

aspect of the matter, but that fact does not mean that the Apex court has rejected or disallowed classification at the stage of recruitment to a

service, since this question is involved in the case in hand, court proceeds to examine and adjudicate upon this aspect of the matter.

Equal opportunity in the matter of employment under Article 16 of the Constitution does not relate only to promotions and a pedantic

approach cannot be made. Wider interpretation is to be given to the word ""employment"" which, I think, includes the initial appointment,

promotions, grades upto the pensionary benefits of a Government servant, even the Apex court in certain cases has interpreted Article 16 of the

Constitution in the manner to include the stage of initial recruitment upto the pensionary benefits in the word ""employment"" and the classification

also with regard to the appointments has not been disallowed or discouraged.

In 'General Manager, Southern Railways Vs. Rangacharia' (AIR 1962 SC 36), the Apex court has held as under:

This equality of opportunity need not he confessed with absolute equality as such. What is guaranteed is the equality of opportunity and

nothing more. Article 16(1} or (2) does not prohibit the prescription of reasonable rules for selection to any employment, or appointment to any

office, any provision as to the qualifications for the employment or the appointment to office reasonably fixed and applicable to all citizens would

certainly be consistent with the doctrine of the equality of opportunity; but in regard to employment, like other terms and conditions associated with

and incidentical to it, the promotion to a selection post is also included in the matters relating to employment, and even in regard to such a

promotion to a selection post all that Art. 16(1) guarantees is equality of opportunity to all citizens who enter service.

If the narrow construction of the expression, ""matters relating to employment"" is accepted, it would make the fundamental right guaranteed by

Art, 16(1) illusory. In that case, it would he open to the state to comply with the formal requirements of Art. 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 Art. 16{1) even if such a

discriminatory course is adopted by the state in respect of its employees that would not be violative of equality of opportunity guaranteed by

Artl6(l). Such a result could not obviously have been intended by the constitution. In this connection it may be relevant to remember that Art. 16(1)

and (2) really give effect to the equality before law guaranteed by Art. 14 and to the prohibition of discrimination guaranteed by Art. 15(1). The

three provisions form part 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.

In case ""Govind Datteray Kelkar and others Vs. Chief controller of Imports and Exports and others"" (AIR 1967 SC 839), the Apex Court has

held as under

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 these under, Article 16 of the constitution is only an incident of the application of the concept of equality in the matter of

appointment and 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 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 promotes are drawn

from the same source. If the preferential treatment of one source in relation to the other is based on the differences the said two sources, and the

said differences have a reasonable relation to the nature of the office or offices 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 riot 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 recruitments..."" (underlining and emphasis supplied)

Identical and similar views were expressed by the apex court in the following two cases: i). ""S.G.Jaisinghani Vs. Union of India and others"" (AIR

1967 SC 1427); and

ii). State of Mysore and another Vs. P.Narasingha Rao""""(AIR 1968 SC 349).

From the above authorities, it is evident that classification is allowed not only with regard to promotions, but it is permissible even at the time of

initial recruitment/ appointment to a service as well. It is a different matter that even at the time of initial recruitment the basis for classification is to

be necessarily kept in view i,e. it should have nexus with the object, if at the initial stage of recruitment efficiency is the paramount object, I do not

think that such a classification is disallowed by Article 16 of the Constitution.

Whether unemployment of Diploma holder Engineers, as the object of the impugned Note 3 and the legislative intention guaranteeing their

appointment as Junior Engineer, in the Subordinate Engineering Service, as against Degree holder Engineer, in the ratio of 3:1, is constitutionally

valid or invalid, is the next question involved.

The challenge to the impugned Rule is essentially made on the grounds that the quota, by way of reservation provided to diploma holders, at

the entry point in the service, is violative of Articles 14 and 16 of the Constitutions. The impugned Rule intends to provide more chances of

recruitment to the Diploma holders in the Service as against Degree holders, when reserves should have been the case. It is further urged that

inferior qualification has been made the basis of discrimination between the two categories, and that the basis of discrimination has no intelligible

nexus with the nature of office to which appointments are to be made. According to Mr.D.C.Raina, learned counsel for degree holders, theory of

classification cannot be allowed to be extended to the cause of unemployment only so as to subvert or submerge the same. While being called

upon to decide whether classification in question is constitutionally valid, excellence and efficiency in service should be the paramount

Consideration.

Defending the impugned rule, it is contended that cadre management is the prerogative of the employer and cannot be questioned. It is further

submitted that fixation of ratio between the two sources of recruitment is a policy matter and is not subject to judicial review. It is further stated that

the strength of diploma holders being greater than Degreeholders, the employer in its wisdom has considered it necessary and in public interest to

appoint Diploma holders more in number than Degree holders at the level of Junior Engineer in the service to deal with unemployment problem of

Diploma holders, the impugned rule is reasonable and not discriminatory, urge the respondents.

In order to resolve the controversy it is necessary first to notice some of the well established principles laid down by the Apex court in the

context of Articles 14 and 16 of the constitution:

a). The power of rule making under proviso to section 124 (corresponding to the proviso to Article 309 of the constitution of India) is legislative in

character. The only test such a rule has to pass is that of Art. 14 and 16 of the Constitution;

b). Though, before making any recruitment it is not necessary for the competent authority to frame rule under proviso to Section 124 of the

Constitution of J and K, but once the rules have been framed, they have to be followed provided they are constitutionally valid (See AIR 1978 SC

327 and AIR 1997 SC 1038).

c). When recruitment to certain posts is made from different sources, what ratio between them will be reasonable will depend upon the requirement

and needs of the posts. If the ratio is unreasonable, amounting to discrimination it can be struck down, but the court cannot suggest a different

ratio. It will be for the employer to work out reasonable ratio in appointment between two sources of recruitment (AIR 1967 SC 839).

d). The employer can provide preferential treatment to one source of appointment in relation to another source. But the preferential treatment has

to be based on well recognised differences between the two sources and the differences should have reasonable relation to the nature of the office

to which appointments have to be made (AIR 1967 SC 839).

e). That the qualifications prescribed for appointment should have rational nexus with the requirements of the service and the appointment should

be in the interest of public service (1994 (4) SCC 491; AIR 1968 SC 349; AIR 1977 SC 1237).

In the instant case, the impugned rule clearly provides that the appointment of Diploma holders at the level of Junior Engineer Grade!I has to be

more in number than that of Degree holders. The ratio 1:3 clearly demonstrates this position. The impugned rule does not show the purpose as to

why Diploma holders are provided greater opportunity in appointment than Degree holders, when both qualify for appointment as Junior Engineers

in the service. In the counteraffidavit, the purpose disclosed by the Government is ""unemployment"" of Degree holders, being more in number than

that of Diploma holders. However, during the course of arguments the purpose disclosed by the learned Advocate General is ""unemployment"" of

Diploma holders, being more than that of Degree holders. If unemployment is the purpose and object of the rule, and the ratio of 1:3 has been

fixed in that context, does the rule violate Article 14 or 16 of the Constitution is the question, I proceed to deal with.

In my opinion removal of unemployment among Diploma holders, by resort to the ratio 1:3, in the public service is not permissible.

Engineering Service is one of the important Services, it is a well recognised public Service and is primarily involved in the implementation of

developmental programmes. Its importance cannot be underestimated. In a social welfare state, Engineering service requires men of higher

qualifications, upright and efficient. Essentially it is a technical services and men with skill and higher technical qualifications need to man the posts

borne in the Services. Over the years there has been considerable advancement in Engineering and the field has become highly competitive.

In my opinion removal of unemployment among Diploma holder Engineers does not constitute a legitimate object; having regard of the nature of the

office to which appointments are to be made. Infact, reduction or removal of unemployment cannot constitute a legitimate object of public services.

Over the years efficiency in the services has been emphasized by the Courts. It is in the larger interests of society and public that highly qualified

technical personal hold positions of responsibility in the public services. The impugned rule seeks to achieve the object of removal or reduction in

the. unemployment of Diploma holder Engineers by making their qualification, which is admittedly inferior to that of Degree holders, as the basis. In

my opinion higher qualification has to be the valid basis for discrimination in the interest of public service, in my view I am supported by several

decision of the Apex Court.

In case ""The State of J and K Vs. Triloki Nath Khosa andothers"" (Supra), the

Apex Court held as under:

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 of providing that graduates shall be eligible for such promotion to the exclusion of diplomaholders does not violate articles 14 and 16 of the

constitution and must be upheld.

But we hope that this judgment will not be construed as a character for making minute and microcosmic classifications. Excellence is, or ought

to be, the gale of all good government and excellence and equality are not friendly bedfellows...

In case ""V.Srinivas Rao Vs. VJ.Veeraih and others"" (AIR 1993 SC 929), the Apex court has held as under:

6.The decision to prefer an uneducated person over an educated person amounts to allowing premium on ignorance, incompetence and

consequently inefficiency. the only fault of the appellant is to have pursued his studies beyond 10th class of his school. If he had discontinued his

career as a student even earlier, say after passing 7th or 8th class, he would have been running the shop today. This clearly amounts to gross

arbitrariness and, therefore, illegal discrimination. Pursuing this line, the State will have to be going in search of a more inefficient person and we do

not know where this process would end. If we assume that since a better qualified person has got a better chance to succeed in life an intelligent

applicant who can run the shop efficiently should be rejected and a dim witted fellow should be selected, this is an absurd situation.

In case ""Roop Chand Adlakha and others Vs. Delhi Development Authority and others"" (1989 supp (1) SCC 116), it was observed:""18. A large

number of authorities were cited on either side. We may first examine the cases relied upon by the High Court in support of its conclusion. The

inherent distinction between a person with a degree and one who is merely a Diploma holder is much too obvious. But the question that falls for

consideration, in the context such as the present once, is whether the differences have a reasonable relation to the nature of the office to which the

promotion is contemplated. The idea of equality in the matter of promotion can be predicated only when the candidates for promotion are drawn

from the same source. If the differences in the qualification have 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 be legitimised

on the doctrine if classification. There may, conceivably, be cases where the differences in the educational qualification may not be 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 distinction or qualifications, or job requirements is neither

constitutionally compelled nor practical meaningful.'1

In ""T.R.Kothandaraman and others Vs. Tamil Nadu water supply and Drainage BD and others"" (1994 (6) SCC 282), the Apex court held as

under:

. ""13. The aforesaid bird's eyeview 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.The aforesaid propositions seem indisputable to us. we, however, propose to project two other determinants, or to put it differently, introduce

two more spokes in the wheel. They are call of social justice and importance of education. In view of the interrelationship which exists in the

fundamental rights, which got established by the decision in Bank Nationalisation case, we have to see, while examining the provision on the anvil

of Articles 14 and 16 of the constitution, whether Article 21 is offended in any way. This Article has expanded its reach almost phenomenally. For

the purpose of the case at hand we may now dwell upon that it would he enough to note that even education (upto primary stage) was held by a

constitution Bench to be a part of Article 21 in Unni Krishnan, J.P. Vs. State of A.P. The importance of education has been well brought home by

Mohan, J., (a majority Judge) in his concurrent judgment by Stating that education is ""a preparation for living and for life, here and hereafter and

that education is ""at once a social and political necessity"", and that 'victories are gained, peace is preserved, progress is achieved, civilisation is built

up and history is made not on the battle fields hut in educational institutions which are seed beds of culture, where children in whose hands quiver

the destinies of the future, are trained.'... So, whatever we take has to be one which does not play down the importance of education.

Law laid down by the Apex Court, as is evident, is that, it is the higher qualification only which can be made the basis for discriminative

classification. Here in the instant case, the matter appears to be quite reverse, inasmuch as the impugned Note 3 of Schedule HA appended to

SRO 180 provides three Diploma holders as against one Degree holder to be appointed to the .service. In effect, merit (higher qualification) has

been converted into demerit and the Diploma holders have been given a premium for their lesser qualification.

No decision to the contrary has been cited before me, nor I have come across any decision where interior qualification has been allowed to be

made basis of discrimination, protecting less qualified persons in the matter of appointment against better qualified persons. I must, however, hasten

to add that I do not mean that a less qualified person can never be appointed, it will essentially depend upon the nature of office, its functions duties

and responsibilities of the post to check which appointments are to be made. The impugned rule does riot satisfy the twin test of Article 14 of the

Constitution. The object sought to be achieved is outside the purview of the service and there is no intelligible nexus between inferior

qualificationsbasis of discriminationand the nature of the office of Junior Engineer to which appointments are to be made. The basis of

discrimination also has no intelligible nexus with the promotion of efficiency in the service. Court can validity scrutinise the basis of legislation on the

ground of reasonability. There are catena of authorities of the Apex Court in which it has been held that if a legislative Act or a subordinate

legislation is not reasonable one, court can declare it ultra vires the constitution. Here in this case, it is apparent on the basis of record that the ratio

of 1:3 fixed is vioiative of Article of 16 of the constitution, not only on the ground that it he no nexus with the object, hut the ratio itself is

unreasonable. It is open to the court to look beyond the basis of classification arid the purpose of law. The arbitrariness in the fixation of ratio

between the two sources of Recruitment is evident when judged in the context of felt needs of the time, informed by experience. Removal or

reduction of unemployment among Diploma holders and the legislative intention of ensuring their employment by protected discrimination in the

form of the impugned ratio at the entry point in the service clearly violate the mandate of Article 14 and 16 of the constitution of India.

The augment of the learned Advocate General that Diploma holders have only one enquiry point to get inducted into the Engineering service,

while the Degree holders have several avenues and benefits available to them, is not attractive Learned counsel for the degree holders in this

context has argued that the impugned ratio of 1:3 does not only restrict the induction of highly qualified persons in technical service, but the feeding

channel to the post of Assistant Engineer, in solar as the Degree holders are concerned, will go dry. There seems to be a great logic in this

argument.

In terms of the Schedule appended to the Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules, 1978, notified vide SRO

209 of 1990, 20% of the posts of Assistant Engineers are meant to be filled in by direct Recruitment through State Public Service Commission

from amongst the Degree holders, rest of the 80% posts are meant to be filled in by promotion from amongst the Junior Engineers and the

percentage fixed is 60% of the total from amongst Degree holder Junior Engineers and 20% from amongst Diploma holder Junior Engineers. It is

thus seen that the ratio of promotion fixed between Degree holder and Diploma holder Junior Engineers is 3:1. The intake ratio of Degree holders

in terms of the impugned ratio into the subordinate Engineer service is only 1 as against 3 Diploma holders. The dropaway ratio from the feeding

channel prescribed by SRO 209 of 1992 of these Degree Holders is 3 as against 1 Diploma holder. In other words, the ratio between the

requirement of Degree holders to man the posts of Assistant Engineers and their availability in the feeding channel comes to 3:1, i,e. as against the

need of three Degree holders only one Degree holder would be available in the feeding channel for promotion. That would lead to drying up of the

feeding channel giving rise to a chaotic situation. Time would ultimately come when there would be a vacuum in the higher Engineering Service,

which requires higher technical proficiency, inasmuch as hardly a few Degree holders would be available for manning the posts of Assistant

Engineers and the posts higher in rank thereto.

The argument of the learned counsel for Diploma holders that the Degree Holders on their appointment as Junior Engineers get eight advance

increments is also devoid of any force. After all the higher start of pay given to a Degree holder appointed to the service on the basis of the

impugned ratio cannot, by any stretch of imagination, be a recompense for the inequality meted out to a candidate left out of the selection, for the

fault of his having chosen to pursue a higher technical course. It cannot also counterbalance the pain of discrimination suffered by a candidate in

wait of check into the service on account of an unreasonable ratio.

Attempt was made by both the sides to discuss in detail SRO 209 of 1992 which governs the eligibility criteria and Recruitment to the

Engineering (Gazetted) Service, but I hesitate to go in detail into that SRO, because 1 am desired to decide only the point of reference relating to

SRO 180, not beyond that.

27, It was urged that since in a given period of time the production rate of Diploma holders is more than double the Degree holders, therefore, the

Diploma holders are entitled to a larger and bigger share in the recruitment. The argument advanced is that, Diploma is obtained only three years

after matriculation whereas Degree is obtained 7 years after Matriculation. Thus during the same period of 7 years, as against one Degree holder,

two Diploma holders are produced and the 3rd Diploma holder also completes one year of the course, as simple the mathematical calculation, as

wholly misconceived the argument is. Production rate is related to, or determinable by, neither the qualifying examination, nor the duration of a

course. Such an eventually could arise only if (i) admissions to both the courses were made after Matriculation, and (ii) after the admission of a

batch of students in either college, the next batch of students, desirous of seeking such admissions, would have to wait for the completion of the

respective courses by the earlier batches. In a continuous yearly process of admission of new batches and completion of the respective courses by

earlier batches, such an eventuality is impossible, it might have been a one, time exception longlong before that as against one batch of Degree

holders three batches of Diploma holders completed their respective courses. Thereafter, a uniformity in the outgoing batches is automatically

maintained from the year the first batch of Degree holders completed their 5 years Course.

The impugned Note 3 demonstrates the legislative intention that the post of Junior Engineer can be manned both by an inferior qualified person

(Diploma holder) as also by a better qualified person (Degree holder). Prescribing qualifications for a post is the prerogative of the Government

and its validity can only be judged if there is no nexus between the prescribed qualification and the requirement of the post or the office to which

the appointment is intended to be made. The employer having determined the requirement of the post and the qualification, the point at issue is that

for the discharge of the responsibilities and duties of the post of Junior Engineer should the employer encourage less qualified persons when better

qualified persons are equally available. In order to ensure equality on realistic basis, it is necessary that the ratio between less qualified and more

qualified persons is balanced in a manner that equal opportunity is provided to both categories. Legislative basis in favour of less qualified persons

neither promotes efficiency in the service, which in my opinion is of paramount importance, nor does it have any nexus with the purpose of the

service for which it is constituted. By providing a balanced ratio, not only the object of efficiency is ensured in the service, but even less qualified

persons also stand a chance to serve. The responsibilities attached to the post of Junior Engineer can be discharged by the persons from both

sources, but one being better qualified than the other, it is believed that ultimately the service stands to gain and eventually the society is benefited,

having regard to the nature of the duties attached to the post. I am afraid, that this court cannot suggest as to what should be the appropriate ratio

between the two sources of Recruitment it being the prerogative of the executive. A Pragmatic approach has to be adopted in order to harmonize

the requirements of public service with the aspirations of public servants.

In the case ""T.R.Kothandaraman and others Vs. Tamil Nadu Water Supply and Drainage and others"" (Supra), the Apex court held:

The next question to be examined is about the extent of the preference given to the degree holders. At this stage, we may first give our

reasons as to why this aspect is amenable to examination. The rule making authority made a diploma holder eligible for promotion, it follows that a

diploma holder does not suffer from such an infirmity as to make him totally unfit for holding the higher posts. If that is so, question is whether the

ratio could be made so inequitable as to mock at the guarantee of equality. The right which has been conferred by one hand cannot be taken away

by another nor can the right be converted to a husk. It must continue to be a meaningful right. Too much emphasis on higher education may even

cause dent to the cause of social justice, as it would be the poorer section of the society which would be deprived of its legitimate expectations.

The preference given to the degreeholders would, at the same time, give fillip to the desire to receive higher education, as such persons would

always be favourably placed as compared to the lesser educated ones. A harmony would thus be struck, by maintaining reasonableness in the

ratio, between the call of social justice and the need for higher education, without in any way jeopardizing the principal object of classification. But

then, no particular ratio can be spelt out which would satisfy these requirements, the reasonableness of the ratio shall depend on facts of each case

in Triloki Nath Khosla's case (Supra), their lordships of She Apex Court have observed: ""A pragmatic approach has therefore, to he adopted in

order harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through in perceptible 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 after all is the operational residue of equality and equal

opportunity?

During the course of arguments, it was pointed out on behalf of the Degree holders, that in the Power Development department of the state there is

no ratio provided for selection and appointments between the Diploma holders and Degree holders Engineers. The appointments are made in the

said Department purely on the basis of merit obtained by the competing candidates in the test interviews. I am afraid, such a course cannot be

directed to be adopted by the court, as it is the prerogative of the Government to decide what method should be adopted and what not. It would

be for the Government to work out a suitable solution.

I am convinced that the employer, in the light of the observations made in this judgment, and in particular having regard to the nature of

appointment, duties and responsibilities attached to the post and, above all, to provide fillip to the efficiency in the service, would work out a

proper, meaningful and effective solution, which may include a reasonable ratio as well.

In light of the debate and discussions; observation and the principles of law quoted and laid down in this judgment, while agreeing with Brother

O.P.Sharma J in holding that the impugned Note 3 appended to schedule 1IA of SRO 180 of 1997 is ultra vines the Constitution, the reference

stands answered.

Having held that the impugned Note 3 of Schedule HA appended to SRO 180 of 1997 is ultravires the Constitution, the next question which

arises is, what relief can be granted in the peculiar facts and circumstances of the case? Though this question is beyond the Scope of reference, yet

I feel that ends of justice would be met, if certain equitable propositions are made:

The admitted position is that the Recruitment process was since initiated by the Service Selection Board, but in terms of an interim direction of

the court, the Government was restrained from making appointments. Therefore, before parting with his reference, purely on the basis of equity, I

provider

i). that the state Government could work out a solution and /or prescribe a proper and reasonable ratio between the Diploma holder and Degree

holder Engineers within a reasonable time, say eight weeks, in light of the observations made in this judgment;

ii). that in case some appropriate ratio between the two sources of recruitment is provided, the Selecting Authority could proceed accordingly and

make appropriate recommendations. It would be open for the Selecting Authority to renotify fresh selection list in accordance with the newly

prescribed ratio on the basis of tests and interviews/ relation process already completed. In case of deficiency of suitable candidates in either

category, having regard to the number of posts for which selection process was initiated, it would be open for the selecting Authority to make good

the said deficiency from the respective sources on the basis of merit obtained by the candidates in the selection process already completed.

iii). These observation made in paras (I) and

(ii) above shall not, however, be taken as direction from this court.