M.A. Wahab vs Government of A.P. and another

Alladi Kuppuswami, J.—In this batch of writ appeals and writ petitions the question for consideration is whether rule 4 (4) of the Andhra Pradesh Panchayat Raj Engineering Special Service Rules (referred to in this judgment as the rules) is liable to be struck down. In the judgment under appeal this court took the view that the impugned rule seeks to eliminate the category of the petitioners, namely, supervisors who are not possessed of the requisite qualifications mentioned in rule 4 (4) (b) (ii) or make them ineligible for the post of Assistant Engineers and therefore it has to be struck down. The petitioners who are aggrieved by that decision have preferred these appeals against the said judgment. W.P. 5486/71 has been posted along with these appeals as the same question falls for consideration in that writ petition. The impugned rule is as follows :-

(4) No person shall be eligible for appointment to the category mentioned below unless he possesses the qualifications prescribed in the corresponding entry thereof :-

1) xx xx

2) xx xx

3) xx xx

4) Assistant Engineer

a) xx xx

1) xx xx

b) by transfer:-

i) from the ranks of junior Engineers possessing B.E. degree (civil) of a University in India established or incorporated by or under the Central Act, a provincial Act or a State Act or an equivalent qualification with 5 years service in that category ; or (ii) from the ranks of supervisors, possessing upper subordinate or L.C.E. diploma or an equivalent qualification with 10 years of service, or Lower subordinate with 20 years of service.

It is admitted that the petitioners in the writ petition who belong to the rank of supervisors do not possess the qualification referred to in rule. 4 (4) (b) (ii). But it is stated that the petitioners possess several technical qualifications.

Some of them appeared for the lower grade of the Government Technical Examinations and passed that examination. The subjects prescribed for that examination were : (1) Building Drawing and Estimating : (2) surveying and levelling : (3) Building Materials and constructions : (4) Hydraulics and Irrigation : (5) Earthwork and roads making: (6) Mensuration (lower) : and (7) Applied Mechanics. It was however contended that rule which prescribes the qualifications referred to above is violative of Arts. 14 and 16 of the Constitution, in as much as a discrimination is made between Supervisors who possess the said qualifications and those who do not possess the said qualifications even though all of them form part of the same cadre. This contention was accepted by Obul Reddi, J., (as he then was).

In the counter filed by the Deputy Chief Engineer Panchayat Raj, it was stated that the qualifications possessed by the petitioners is a pass in technical examination and is not equivalent to L.C.E.U.S. or L.S. Diploma prescribed as the qualification for promotion as Assistant Engineers. It was further stated that the post of Assistant Engineer is a very responsible post and the duties and functions cast on him require better technical qualification. An Assistant Engineer has to look after structural and designing work pertinent to bridges and buildings and with the lower qualification possessed by the petitioner he cannot attend to major construction works of bridges and buildings which include design of major structural components. A person who passes the technical subjects will not be taught the designs and implications of structural safety. In the diploma course, among others, the subjects that will be taught are:--

1) Strength of materials and theory of structures ;

2) Highways and Railways :

3) Estimating and costing :

4) Water supply and sanitation : and

5) strength of materials and Hydraulics (practical)

It is stated that the Qualifications are prescribed for each post in the superior service keeping in view of the different functions. The petitioners cannot function satisfactorily as Assistant Engineers with the qualifications possessed by them. If persons are appointed to Higher posts without adequate knowledge in engineering and without possessing higher technical qualifications, it will impede the efficiency. Hence the classification based on educational qualifications was considered necessary. There is no arbitrary discrimination and this classification based upon educational qualification is a reasonable classification having a just relation to the object of the rule, namely, promotion to a higher post carrying considerable responsibilities.

Obul Reddi J., (As he then was) however took the view that there is nothing in the rules to indicate on what basis or having what object in view such of those supervisors who have passed the Government Technical Examination have been made ineligible for promotion as Assistant Engineers. He observed "the question here is not whether the Government can make rule prescribing qualifications for the next higher but, whether there is any rationale behind the present classification so as to exclude those who passed the Government Technical Examination". He also stated that "no where the special rules say this persons who passed the Government Technical Examination and promoted from the posts of overseers to Supervisors are not eligible for any post higher than that of a supervisor as in the case of those diploma holders who stop at the Executive Engineer''s level".

In our view the proper approach is to see whether it is open to the Government to make a rule prescribing educational qualifications for promotion to a higher post. If, once, the qualifications are not satisfied by any of the persons concerned they will be ineligible for promotion. Therefore, the real question for consideration is whether the rule which prescribes certain educational qualifications for the Supervisors for being promoted as Assistant Engineers is liable to be struck down on the ground it violates Arts 14 and 16 of the Constitution.

Our task has been rendered considerably easy by the recent decision of the Supreme Court in The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, where an identical question fell for consideration by the Supreme Court. It was held that even. In case where person drawn from different sources are integrated into one class, they may be classified for the purpose of promotion on the basis of their educational qualifications. In that case, persons appointed directly and by promotion were integrated into a common class of Assistant Engineers. For the purpose of promotion as Executive Engineers certain educational qualifications were prescribed. The rule provided that graduates shall be eligible for promotion to the post of Executive Engineers to the execlusion of diploma holders. It was held that such a rule does not violate Arts. 14 and 16 of the Constitution. The Supreme Court stated that a classification of employees can be made for first identifying and then distinguishing members of one class from those of another and the classification of Assistant Engineers into Degree-Holders and Diploma-Holders could not be held to rest on any unreal or unreasonable basis, as it was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly correlated to it.

It was also pointed out in that case that it is not necessary that the rules themselves should disclose the basis of reason for the classification and it is open to he Government to place sufficient material before the court to justify the classification is unjust on the face of it, it was observed, the burden is on the petitioners to set out facts necessary to sustain the plea of discrimination and to adduce cogent and convincing evidence to prove those facts, for there is a presumption that every factor which is relevant of material has been taken into account in formulating the classification. Judicial scrutiny can extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. The Court cannot extend to embarking upon a nice or mathematical evolution of the basis of classification. By doing so, they would be taking upon themselves the powers and duties of the Government or the legislature and to substitute their own judgment for that of the legislature of the rule-making authority on the need to classify or the desirability of achieving a particular object.

In this particular case, instead of merely resting upon the presumption regarding the validity of classification and throwing the burden on the petitioners the Government has stated in the Counter-affidavit the various reasons for prescribing the educational qualification for promotion as Assistant Engineers. Nothing has been stated as to why we should not accept the reasons for the need for the rule and the classification made on the basis of educationl qualifications.

It was further contended that all the supervisors from a single cadre and it is not permissible to classify them and give a preferential treatment to some in the matter of promotions. Reliance was placed on a number of decisions such as Roshan Lal Tandon Vs. Union of India (UOI), nd Mervyn v. Collector of Customs AIR 1967 S.C. 25. This aspect was also considered by the Supreme court in the above case. It was pointed out that all that the first of the above cases decided was that direct recruits and promotees loose their birth marks on fusion into a common stream of service and they cannot thereafter be treated differently by reference to the consideration they were recruited from different sources. It is no authority for the proposition that they cannot be classified for promotion on a basis other than the one that they were drawn from different sources. The classification based on educational qualifications is not in relation to sources of recruitment as in Roshanlal''s case.

In view of the decision of the Supreme Court in The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, 1 which applies in every respect to the present case, we hold that rule 4 (4) (b) (ii) cannot be considered to be discriminatory or violative of Arts. 14 and 16 of the Constitution.

It is contended on behalf of the petitioners that the Government Technical Examinations which they have passed are equal to the educational qualifications prescribed under the rules. Under rule 19 of the A. P. State & Subordinate Service Rules wherever special qualifications are prescribed it is stated that no person shall be eligible unless he possessers such special qualification. In rule 19 (b) it is stated that persons such other qualifications as may be considered to be equivalent to the special qualifications or special tests- (i) by the Commission in cases where the appointment has to be made in consultation with it ; and (ii) by the State Government or by the appointing authority with the approval of the State Government in other cases. As the present cases fall within S. 19 (b) (ii) the State Government has to determine whether the qualifications possessed by any of the petitioners is equivalent to the qualifications prescribed in the special rules. The question whether these qualifications are equivalent to the qualifications prescribed or not, is a question of fact depending upon the nature of examination, the subject for the examination and so on and it is not possible for this court to come to a decision whether they are equivalent qualifications without proper material. It will be open to the petitioners to satisfy the Government that the qualifications which are possessed by them are equivalent to the qualifications prescribed under the impugned rule. We have no doubt that if the Government is so satisfied, it will proceed on the basis that the petitioners are also eligible for promotion along with the other supervisors who possessed that qualification.

The writ appeals are allowed with costs throughout. The writ petition is dismissed with costs. Advocate''s fee Rs. 100/- in each case.