Salamudeen vs The State of Rajasthan and Another

By the writ petition, the petitioner has challenges the entry ''Welder'' in Col No. 4 of item No. 15 of the Schedule annexed to the Rajasthan Ground Water (Subordinate Service) Rules, 1973 (for short ''the Rules'') and has prayed that this entry be declared invalid being discriminatory and violative of Article 14 and 16 of the Constitution as by making Welder eligible for appointment by promotion along with Mechanic Gr. 11 to the post of Mechanic Gr. I has affected the rights of the petitioner and like others adversely.

Mr. M.Mridul, the learned Counsel appearing for the petitioner has contended that there is difference in pay scales, qualifications and nature of duties between the posts of Mechanic Gr. II and the Welder. He has submitted that as per item No. 15 of the Schedule annexed to the Rules, 75% posts are to be filled in by promotion from amount the Mechanics Gr. II and welders who possess 5 year experience on the post and are literate and 25% posts of Mechanics Gr. I are to be filled in by direct recruitment from amongst the person who possess diploma in Mechanical or Electrical Engineering with one year''s Practical experience in repairing of Patrol and Diesel Machines. According to him, clubbing of two posts of Welder and Mechanic Gr. II for promotion to the post of Mechanic Gr. I is arbitrary. He has submitted that the pay scales for the post of Mechanic Gr. II is higher than that of a Welder, which is clear from the Schedule appended to the writ petition. The qualifications required for the post of Mechanic Gr. II is more onerous than those required for the post of Welder, for which he has drawn our attention to Annexure-R.l showing the minimum qualifications for the posts of Mechanic Gr. II and the Welder. So far as his submission, regarding difference in nature of duties is concerned, he has submitted that the duty of the Mechanic Gr. II is to repair Rigs, Internal Combustion and all allied machines such as AIR compressers, welding set, (i en-set etc. Whereas the duty of the Welder is only to Weed the necessary joints or plates etc. according to the Mechanics advice. He has, there fire, submitted that clubbing of these two posts of Mechanic Gr. II and the Welder for promotion to the post of Machanic Gr.I is arbitrary and violative of Articles 14 and 16 of the Constitution. In this respect, lie drew out attention to the letter Anncxure-2 dated 21.2.1985 and the letter Annexure-3 dated 20.4.1985 wherein it has been stated that for promotion to the post of Mechanic Gr.I, the clubbing of two posts viz., Welders and Mechanic Gr.II was not proper and hence, the Chief Engineer has recommended for its reconsideration to the State Govt.

On the other hand, Mr. M.R. Singhvi, the learned Counsel appearing for the respondents has argued that difference in pay scales of the posts of Welder and Mechanic Gr.II is too meagre and insubstantial and hence, it cannot be a decisive factor to hold the clubbing of these two posts of Mechanic Gr.II and Welder for promotion to the post of Mechanic Gr.I as invalid and violative of Articles 14 and 16 of the Constitution. In this respect, he invited our attention to a decision of their lordships of the Supreme Court in A.S. lye and Ors. v. Balasubramanyam and Orders 1980 SCC 145.

We have given our most anxious consideration to the rival contentions raised by the learned Counsel appearing for the parties.

Now, we will have to determine whether it is a case of unequal being treated as equals and accordingly, whether the entry ''Welder'' in col. No. 4 of item No. 15 of the Schedule annexed to the Rules has to be deleted as being violative of Articles. 14 and 16 of the Constitution?

In Md. Usman and Others Vs. State of Andhra Pradesh and Others, , their lordships of the Supreme Court have observed that the proposition of law that the doctrine of equality is attracted not only when equals arc treated as unequal but also when unequal are treated as equals and that Art 14 is offended both by finding difference when there is none and by making no difference when there is one is unexceptionable. But the Rule of equality is intended to advance justice by avoiding discrimination.

On the strength of the aforesaid proposition of law enunciated by their lordships of the Supreme Court in Mohd. Usman''s case (supra), we will examine the facts of the case and the law, which has been, cite by both the learned Counsel.

The contention of Mr. Mridul is that in this case, the pay scales of Mechanic Gr.II are higher to that of a Welder. He has further submitted that a Welder who is promoted from the post of Fitter gets his promotion on the post of Mechanic Gr. I on expiry of 8 years whereas a Mechanic Gr.II who is promoted from the post of Filler gets his promotion on the post of Mechanic Gr.l on expiry often years. He has also submitted that the job requirements for the post of Mechanic Gr.I also very much differ when compared to the job requirements of the post of a Welder. The post of Welder has no nexus with the job that he will have to perform as Mechanic Gr.I and thus, it is a case of treating unequal as equals.

So far as difference in pay scales is concerned, Mr. M.R. Singhvi, the learned Counsel appearing for the respondents has submitted that it is not a decisive factor. In this respect, he drew our attention to a Special Bench decision of this Court in Amar chand v. State of Rajasthan 1977 WLN (UC) 261. That was a case where for promotion to the post of Head Master, Senior Teachers and Teachers Gr.II were made eligible in the ratio of 1:4. It was alleged that for becoming a senior teacher, one has to pass Post-Graduate Examination with a degree of Bachelor of Education whereas for the post of second Grade Teacher, one has to pass Graduation examination with a degree of Bachelor of Education. In that case, it was argued by Mr. Mridul that a Senior Teacher definitely places himself in superior category in that way and, therefore, he cannot be equalised in the matter pf selection to the post of a Head Master with second Grade Teacher who in matters of salary and educational qualifications stands inferior to the former, class. While relying on Mohd. Uswan''s case (supra) and the decision in Naval Kishore Singh v. UOI 197 (1) SLR 509 it was held that the difference in pay scales and educational qualifications cannot be treated as decisive in such matters.

As the Judgmerit of their lordships of the Supreme Court in Mohd. Usman''s case was the bed-rock in ariving at a particular conclusion in Amarchand''s case (supra) and Nawal kishore Singh''s case (supra) it will be better, to discuss in detail Mohd. Usman''s case (supra).

Mohd. Usman''s case related to the recruitment to a state cadre post of Sub Registrar from amongst the Ministerial Officials of the Registration and Stamps Department. Rule 5 related to the qualifications and it provided that no person shall be eligible for appointment to the post of Sub Registrar Gr.II unless he is permanent clerk and must have served for a period of not less than 7 years on duty as clerk; in the Registration and Stamps Department including the office of the Registrar General of Birth, Death and Marriages and the office of the Registrar of Firms. By insertion of these qualifications, the L.D.Cs. and the U.D.C.S.have been clubbed together. It was contended that the U.D.C. is a promotional post from the post of L.D.C. and, there for it is case of treating unequal as equals and it is viloative of Articles. 14 and 16 of the Constitution.

This argument was repelled by their lordships of the Supreme Court and it was observed as follows:

If the State had treated the U.D.Cs. as being superior to the L.D.Cs. for the purpose of that recruitment, it would have resulted in a great deal of injustice to a large Section of the Clerks. The fortuitous circumstance of an Officer in a particular district becoming an U.D.C. would have give him an undue advantage over his seniors who might have been as efficient or even more efficient than himself, merely because they chanced to serve in some other district.

It was further observed as follows:

For the reasons mentioned above, we do not think that in the present case, the State can be said to have treated unequal as equals. The Rule of equality is intended to advance justice by avoiding discrimination. In our opinion, the High Court by overlooking the reason behind Rule 5 came to the eroneous conclusion that the said Rule violated Article 14 of the Constitution.

In this case, the clubbing was allowed because promotion of a L.D.C. to the post of U.D.C. which forms part of a district cadre could be fortuitous circumstance i.e. in one district, a L.D.C. may be promoted to the post of U.D.C. within 5 years whereas in another district, a L.D.C. may be promoted to the post of U.D.C. within 15 years in spite-of the fact that he has been very much competent and efficient. Apart from that there were certain qualifications for recruitment to the aforesaid post of Sub Registrar Gr.II and those common qualifications were that he must have passed Registration test whether he is a L.D.C or U.D.C. He must have taken at the final examination of his school or College course one of the languages mentioned in the Rule and must have also passed translation test or second language test etc. Thus, it was in those circumstances, it was held that the clubbing of these two posts will not be discriminatory. Thus, Mohd. Usman ''s case is very much distinguishable on facts of the present case. Here, the cadre to which-promotion is made is not a State cadre post and the promotion of a helper to the post of Mechanic Gr.II or Welder is not a fortuitous circumstance but it is based on certain qualifications and experiences in certain specialties. If one possesses that, then alone, he can be promoted to a particular higher post. The posts belong to the same department and, therefore this authority which is the bedrock of Amarchand''s case (supra) and Nawal kishore Singh''s case (supra) has little application to the facts of the present case.

In Jaswant Raj Singhvi v. Union of India 1985 WLN (UC) 395 for promotion to the post of Junior Scientific Officer, the Foreman in the pay scale of Rs. 840-1040, the Senior Scientific Assistant in the pay scale of Rs. 550-900 and the Chief Draughtsman in the pay scale. of Rs. 700-900 were made eligible.

While relying on Amarchand''s case (supra) and Nawal Kishore Singh''s case (supra), it was observed that the proper course for preparing combined list for the D.P.C. should have been to place the persons of higher grades above those of the lower grades but this appears not to have been done. It was accordingly held that the list has not been correctly prepared by the respondents in accordance with the law Laid down by this Court.

On the basis of the aforesaid three authorities viz; Mohd. Usman''s case (supra), Amarchand''s case (supra) and Nawalkishore Singh''s case (supra), it was argued by Mr. M.R. Singhvi, the learned Counsel appearing for the respondents that differences in the pay scales or educational qualifications cannot be treated to be decisive factors in construing the promotional avenues as being violative of Articles 14 and 16 the Constitution.

We may state here that these considerations, even if they are not decisive by themselves are relevant considerations for arriving at a conclusion whether unequal are being treated as equals, When they are taken into consideration with some other material, they may furnish a solid foundation for coming to the conclusion whether it is a case of unequal being treated as equals? However, in doing so, it has to be seen that classification must be founded on an intelligible differentia, which distinguishes certain classes of persons that are grouped together from others and that differentia must have a rational relation to the object sought to be achieved by the legislation. A reasonable classification is one which classified all persons or tailings similarly situated with respect to the purpose of the law i.e. it should be ensured that, the persons or things similarly situated are provided with similar treatment. Thus, mere differentiation in pay scales and qualifications may not be a decisive factore unless such a differentiation based on educational attainments; qualifications and experience are not obligated by the nature of the duties of the higher post. In this respect, we place reliance on a decision of their lordships of the Supreme Court in Mohd. Shujat Ali v. Union pf ''India AIR 1874 SC 1631, wherein it has been observed:

That 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.

Thus, if differentiation has something to do with the nature of the duties that have to be performed i.e. if they have any reasonable nexus to the duties to be performed then such a differentiation will not be considered to be ultra vires to Arts. 14 and 16 of the Constitution but it will be treated to be classification founded on intelligible differentia. If the object sought to be achieved has no relation to the qualifications that are required by a person clubbed together with one-another for the promotional avenues then, of course, it is a case, of treating unequal as equals.

Item No. 18 appended to the Rules deals-with the post of Fitter. Fitters are to be recrited 100% by direct recruitment from amongst the persons holding certificate from Industrial Training Institute in: concerned trade or literate with 3 year experience in litting and assembling of Diesel and Petrol Engines. Thus, a fitter is expected to do the job of lining and assembling of Diesel and Petrol Engine. Item No. 17 of the Schedule lays down the source. of recruitment and qualification for promotion or direct recruitment to the post of Welder. The post of Welder can be filled in 50% by promotion from amongst the Fitters, and 50% by direct recruitment. For direct recruitment to the post of Welder, the qualifications required are a certificate in welding from, Industrial Trainieg Institute with 2 years practical experience in gas and electric welding and the person should be capable to work independently in welding plates including hard facing with special alloy electrodes. A fitter who has three years experience on the post of Fitter with knowledge of electrical and gas welding including hard facing with special alloy electrodes can be promoted to the poot of Welder. Thus, the job requirement for the post of Welder is electrical and has welding including hard facing with special alloy electrodes. The post of Mechanic Gr.II can be filled in 50% by direct recruitment. A person holding certificate in the trade from Industrial Training Institute with 2 years'' practical experience in repairing petrol and Diesel Trucks, Compressors and Drilling Rigs can be appointed as Mechanic Gr.II by direct recruitment. A person who is literate with 5 years'' experience on the post of Fitter can also be promoted as Mechanic Gr.II. Thus, Mechanic Gr.II is required to perform the job of repairing Petrol and Diesel Trucks, Compressor and Drilling Rigs. Sofaras the post of Mechenic Gr.I is concerned, it can be filled 75% by promotion from amongst the Mechanic Gr.II and Welders and 25% by direct recruitment. A person holding diploma in Mehanical or electrical engineering with one year''s practical experience in repairing of Petrol and Diesel Machines can be appointed as Mechanic Gr.I. A person who is literate with 5 years experience on the posts of Mechanic Gr.II or Welder can also be promoted on the post of Mechanic Gr.I. Thus, Mechanic Gr. I is required to perform the job of repairing of petrol and diesel machines. The job requirement for the post of Mechanic Gr.I has no concern with the job of electrical and gas welding including hard facing with special alloy electrodes, which a welder is required to perform. The job requirements of a Mechanic Gr. II where is either appointed through direct recruitment or is promoted from the post of Fitter has a direct nexus with the job that has to be performed by a Mechanic Gr.I. Thus, the job requirement of a Welder has no nexus with the job that has to be performed by a Mechanic Gr.I. It is not a case where the persons drawn from different sources constitute a single integrated cadre and, therefore, the difference in job requirement has to be taken into account.

Mr. M.R. Singhvi, the learned Counsel appearing for the respondents has contended that such a difference in job requirement should not be taken into consideration. In this respect, he invited four attentions to Amarchand''s case (supra). In that case promotion to the post of a Head Master was to be made from the cadre of Senior Teachers as also the cadre of II grade teachers. The senior Teachers and second grade teachers both are required to perform the same type of job i.e. teaching the students and therefore, the job requirement of a second grade teacher and a senior teacher not only has in terse similarity but it has a direct nexus to the job which he may be called upon to perform as a Head Master as he too is required to perform the job of teaching the students in addition to some administrative functions which he may be called upon to discharge as Head Master of a School. Thus, Amarchand''s case is of no assistance to the case in hand.

It is true that in Jaswant Raj Singhvi''s case (supra) the post of Junior Scientific Officer in the pay scale of Rs. 650-1200 was to be filled in from amongst three different posts i.e. the Foreman in the Pay Scale of Rs.840-1040, Senior Scientific Assistant in the pay scale of Rs. 550-900 and Chief Draughtsman in the pay scale of Rs. 700-900 but no such controversy Was raised before the learned Single Judge that job requirements of any of these posts have no direct nexus with the job requirement of Junior Scientific Officer. The only question raised was that the list that has been submitted to the D.P.C. has not been correctly formulated because a person of higher grade should be placed above those who are in the lower grade and the seniority in the list could not have been assigned on the basis of the length of service in that particular grade. of course, in that case, it was contended that the petitioner should have been selected but the Court held that the case of the petitioner has been considered and he has not been found suitable for promotion. However, the Court directed that the proper course to be adopted for preparing a combined list for the D.P.C; should be this that the persons enjoying higher grades should be put above those who are enjoying lower grades but it appears that this has not been done. It was in those circumstances that it was held that the list has not been correctly prepared by the respondents in accordance with the law laid down by this Court. It was further observed as follows.

Thus, the criteria adopted by the respondent is hot correct and the same is set aside. The respondents are directed to prepare a combined list of persons in accordance with the criter suggested by the Patna High Court in the case Nawai Kishore Singh v. U.O.I (supra) and the same was adopted by this Court is the case of Amar Chand v. State of Raj. (supra).

Thus, it is clear that in Jaswant raj Singhvi''s case, no such question was raised that the job requirements any of these three posts viz., Foreman, Senior Scientific Assistant and Chief Draughtsman have no nexus with the job requirements of the post of Junior Scientific Officer and, therefore, to this extent Jaswant Raj Singhvi''s, case is of no avail.

Now, we take up Modh. Usman''sss case (supra). In that case, it was held by their lordships of the Supreme Court that U.D.Cs. are definitely senior and superior to the L.D.Cs. because the post of U.D.C is a promotional post but that differentiation in spite of its existence was overlooked on the ground that the selection to the post of Sub Registrar was state wise whereas promotions are accorded to the L.D.Cs. on the post of U.D.Cs. district wise. It may be that in one district, a L.D.C. can be promoted as U.D.C within five years whereas in another district, in spite of the fact that a L.D.C. is better qualified and may be most efficient still he cannot be promoted as.U.D.C. for 15 long years. Thus, the fortuitous circumstance of an Officer becoming a U.D.C. earlier would have given him undue advantage over his seniors in other districts who might have been as efficient or even more efficient than himself, merely because they chanced to serve in some other district. That being so, shile-making recruitment to a stale wiec cadre, it was not possible for the State to make distinction between the L.D.Cs. arid the U.D.Cs. The only reasonable basis that could have been adopted was to treat the U.D.Cs; and L.D.Cs. as one class for the purpose of recruitment. But at the same time the Rule provides for giving preference to the U.D.Cs. who had put in service as U.D.C. for five years or more. In those circumstances, it was held by their lordships of the Supreme Court that it is not a case of treating unequal as equals. The facts of Mohd. Usman ''s case do not apply to the case on hand. Here, there is a marked difference in qualifications for the posts of MechanicGr.Il and Welder, The job requirement of a Welder has no nexus with the job that has to be Mechanic Gr J whereas the job requirement of a Mechanic Gr.II has direct nexus with the job that has to be performed by a Mechanic Gr.I. Promotion From. the post of Helper to that of a welder is not ipso facto or automatic. It can only be made when one acquires special knowledge of electric and gas welding including hard facing with special alloy electrodes. Any, helper who acquires the aforesaid special knowledge and has three years experience on the post of Fitter can be promoted as Welder. If the posts of Welder and Mechanic Gr.II are clubbed together for promotion to the post of Mechanic Gr.I, then a Fitter who has been promoted on the post of Welder will gel his promotion on the post of Mechanic Gr.I within eight years whereas a Fitter, who has been promoted on the post of Mechanic Gr.II will get his promotion within then years.

Mr. M. Mridul, the learned Counsel appearing for the petitioner has contended that the Chief Engineer, Ground Water Department, Jodhpur was cognizant of this fact and he has moved the State Government for change in the Rules i.e. to delete the entry ''Welder'' in Column No. 4 of Item No. 15 relating to concerning promotion to the post of a Mechanic Gr.I mentioned in the Schedule annexed to the Rules. Mr. Singhvi has submitted that this is only a recommendation of the Department and it has not yet been acted upon by the respondents and therefore, it should not struck down because this Rule is prevailing for the benefit of the employees for a long time and, therefore, the Courts should be slow to interfere with such rules unless the Rules are held to be unconstitutional. In support of his submission, he has placed reliance on a decision of their lordships of the Supreme Court in Union of India and Others Vs. Dr. S. Krishna Murthy and Others,

On the other hand, Mr. Mridul has placed reliance on a decision of their lordships of the Supreme Court in Motor General Traders v. State of A.P. 1984 SCC 222 wherein it has been observed that long continuation of an invalid provision would not confer on it any immunity as regards challenge to its constitutionality.

It was argued by Mr. Singhvi that the classification should be broad based and not microscopic and the history and nature of the service should also be kept in view. In this respect, he has placed reliance on a decision of their lordships of the Supreme Court in AS. Iyer and Orthers v. Bdlasubranianyam and Orthers 1980 SCC 145. We have already applied this test in this case. We have already held that the job requirements of a Welder has nothing to do with the job requirements of Mechanic Grade I where as the job requirements of Mechanic Gr.II has directed nexus with the job that has to be performed by a Mechanic Gr J. In absence of such a nexus between the job requirements of two posts viz. Welder and Mechanic Gr.II vis-a-vis Mechanic Gr. I and further coupled with the fact that the qualifications and pay scales of both these posts i,e. Welder and Mechanic Gr.II are also different, we are firmly of the view that it is a case of treating unequal as equals and as such clubbing of these two posts of Welder and Mechanic Gr.II for promotion to the post of Mechanic Gr.I is arbitrary and unjust and suffers from the vies of inequality i.e. it militate against the principle of equality before law and equal protection of laws, and therefore, the entry ''Welder'' in column No,4 of item No. 15 relating to Mechanic Gr.I of the Schedule appended to the Rules deserves to be struck down as being violative of Arts. 14 and 16 of the Constitution of India.

Mr. M.R. Singhvi, the learned Counsel appearing for the respondents has argued that if the entry Welder'' in column No. 4 of item No. 15 relating to Mechanic Gr.I of the Schedule appended to the Rules is declared to be ultraverse to the Constitution then promotional avenues of the Welders will be blocked. He has submitted that reasonable promotional opportunities should be avilable in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly. In this respect, he has placed reliance on a decision of their lordships of the Supreme Court in AIR 1988 1033 (SC) wherein it has been observed as follows:

Before we part with the appeal, we would like to take notice of another aspect. In course of hearing of the appeal, to a query made by us, learned Counsel for the appellant indicated the reason as to why the appellant was anxious to switch over to the general cadre. He relied upon two or three communications, which are a part of the record where it has been indicated. that there is no promotional opportunity available in the wireless organization. Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly. We wood, therefore, direct the State of Bihar to provide at least two promotional opportunities to the Officers of the State Police In the wireless organization within six months In from today by appropriate amendments In the Rules.

Keeping in view the aforesaid observations of their lordships of the Supreme Court, we are of the view that at least two more promotional opportunities should be pro vided to the Welders within six months from today by making suitable and appropriate amendments in Rules.

In the result, we accept this writ petition and held the entry'' welder in column No. 4 of item No. 15 relating to Mechanic Gr.I of the Schedule appended to the Rules is unconstitutional being violative of Arts. 14 and 16 of the Constitution and direct the respondents to delete it forth with by appropriate amendments in the Rules. We further direct the respondents that if any officiating or adhoc promotions have been made to the post of Mechanic Gr.I from amongst the Welders during the pendency of this writ petition Le. after 9.3.89, such promotees be reverted back to their original posts. The respondents are also directed to amend the Rajasthan Ground Water Sub-Ordinate Service Rules, 1973 by providing two more promotional avenues to the Weldors, Such an amendment should made within six months from today

In the facts and circumstances of this case, the parties are directed to bear their own costs of this wirt petition.