Vishwanath N. vs State of Karnataka and Others

Jagannatha Shetty, J.-These appeals are directed against the common judgment of a learned single Judge dismissing the writ petitions filed by the appellants.

The facts are not in dispute They will be found correctly stated in the judgment under appeals; and may briefly be stated thus.

The appellants and respondents are graduates in engineering. They entered service in the Public Works Department of the State Government as Junior Engineers, Class III Non gazetted. Their next promotion was to the cadre of Assistant Engineers, a Class II post, the recruitment of which has been regulated by the rules called Karnataka Public Works Engineering Department Services (Recruitment) Rules, 1960. The cadre of Assistant Engineers consists of Assistant Engineers (Division-I) who are graduates, and Assistant Engineers (Division II) who are non-graduates. As per the cadre Rules, 33-1/3% of the posts of Assistant Engineers (Division-I) has to be filled up by direct recruitment, and the balance by promotion from the cadre of Junior Engineers, Division-I. But this ratio has never been maintained at any stage. The first, and perhaps the last, direct recruitment was made only in 1962. Thereafter promotions were frequently made even to fill up the posts reserved for direct recruitment.

In June 1975, a special cadre of Selection Grade Junior Engineers (Division-I) with 680 posts was created retrospectively with effect from 4th January, 1975. It was then an intermediate cadre as between the Assistant Engineers and Junior Engineers. On 6th November 1975. the appellants and the respondents along with many others were promoted to the said cadre. Their next promotion could therefore be only as Assistant Engineers.

In 1976, the Government took up the question of direct recruitment to the cadre of Assistant Engineers and a cabinet sub-committee was constituted to look into the matter. The said committee found that there was imbalance in the ratio between the direct recruits and promotees. The committee decided that 40% of the posts of Assistant Engineers should be filled up by direct recruitment and the remaining 60% by promotion. Accordingly, 320 posts of Assistant Engineers in the cadre were set apart for direct recruitment. In order to give effect to this policy decision, the Governor under the proviso to Art. 309 of the Constitution, made rules called Karnataka Recruitment of Assistant Engineers, Division-1 (Special) Rules, 1976. The said rules provided a special method for direct recruitment to the 320 posts of Assistant Engineers. The rules also directed that there should be no promotion to the cadre of Assistant Engineers until the direct recruitment was completed in the manner prescribed thereunder. The rules, however were not given effect to. The Government had second thoughts over the matter. On 27th December, 1977, the aforesaid Rules were superseded by a new set of rules called Karnataka Recruitment of Assistant Engineers, Division-I (Special) Rules, 1977 ("the 1977 Rules"). The new rules, inter alia, provide that out of the 320 posts set apart for direct recruitment, the first 160 posts shall be filled up by promotion from the cadre of Junior Engineers, Division-I on seniority-cum-merit basis and; the remaining 160 posts shall be filled by direct recruitment in the manner provided thereunder.

On 27th January, 1978, the State Government made an order promoting one hundred and thirty six Selection Grade Junior Engineers (Division-I) to the cadre of Assistant Engineers without considering the cases of the appellants although the appellants were all seniors to those promoted. On the same day, the appellants moved this Court with writ petitions under Art. 226 of the Constitution for a direction against the State to consider their cases for promotion.

The State resisted the writ petitions solely on the ground that the appellants had not passed the service examinations prescribed for promotion to the cadre of Assistant Engineers and therefore they were not eligible for promotion.

It was urged before the learned single Judge that the 160 posts of Assistant Engineers set apart for promotion were new posts or new category of posts in respect of which no service examinations were prescribed. Alternatively, it was urged that the appellants had still time allowed under law to pass the prescribed examinations, if any, on the date on which their juniors were promoted and therefore, the non-consideration of their cases was illegal. Incidentally, it was also contended that one need not pass the prescribed examinations to be eligible for officiating promotion.

The learned single Judge rejected all these contentions and dismissed the writ petitions. He held that the appellants should have passed the prescribed examinations on the date on which their juniors were promoted and that they have no right to ask for consideration of their cases for promotion since admittedly they had not by then passed one of the service examinations, viz. in "General Law"-Hence these Writ Appeals.

The State Government by letter dated 19th/22nd August, 1977, stated that the categories of posts of Selection Grade Junior Engineers (Division-I) and Junior Engineers (Division-I) were merged together and redesignated as Junior Engineers Division-I, with effect from first January, 1977 and the examinations prescribed for the cadre of Junior Engineers are applicable to the Government servants who were in the cadre of Selection Grade Junior Engineers These Junior Engineers (Division-I) have since been re-designated as "Assistant Engineers" and the said 160 posts of Assistant Engineers have been re-designated as "Assistant Executive Engineers (Division-1)". It is admitted that these re-designations have not brought about any change in their existing duties, responsibilities, powers and emoluments of the incumbents We would, however to avoid confusion, continue to refer to the said posts only in their old designations.

We will now refer to the examinations prescribed for holders of posts of Junior Engineers and Assistant Engineers. The service examinations were prescribed by the rules called the Karnataka Civil Services (Service and Kannada Language Examinations) Rules, 1974 (called shortly "the Service Examination Rules"). They came into force on 10th January 1974, prescribing the following examinations for Junior Engineers: (1) P.W.D. Examinations, Higher. (2) Public Works Engineering.

The same rules prescribed the following four service examinations for Assistant Engineers: (1) P.W.D. Examinations, Higher. (2) Public Works Engineering. (3) Accounts Higher. (4) General Law.

On 10th July, 1975, there was an alteration in the aforesaid scheme of service examinations. The Public Works Engineering Examination which was common for Junior Engineers and Assistant Engineers came to be deleted, and Accounts Higher Examination was prescribed for Junior Engineers. It may be relevant to note that the Accounts Higher Examination had already been prescribed for Assistant Engineers on 10th January, 1974. As on the date on which the juniors were promoted, the appellants had passed all the service examinations except in "General Law" prescribed for Assistant Engineers. On that count, they were not considered for promotion, and their juniors who have passed all the said prescribed examinations were promoted.

We will first consider the preliminary objection raised for the respondents. It was urged that the writ petitions were not maintainable for want of necessary parties and the persons promoted as Assistant Engineers were said to be necessary parties. The learned single Judge rejected that contention on the sole ground that the appellants were permitted to sue the respondents under Order I Rule 3 of the C.P.C.

It is no doubt true that the learned single Judge granted leave to sue the respondents in a representative capacity. But we notice that there is a serious infirmity in the procedure followed by the parties. They have not noticed the Karnataka amendment to Order I Rule 8 C.P.C. Rule 8(3) inserted by the Karnataka amendment provides that when the court gives permission to sue or be sued or defend any suit on behalf of or for the benefit of all persons as having the same interest, shall give at the expense of such party notice of the institution of the suit to all such persons so interested either by personal service or, where from the number of persons or any other cause such personal service is not reasonably practicable, by public advertisement, as the court may in each case direct. It is admitted that the personal service envisaged by the aforesaid provision has not been effected by the appellants. Mr. Javali, learned senior advocate for the appellants, after realising the mistake, fairly conceded that he could not justify the non-impleading of the promotees on the ground that the court has permitted to sue the respondents under Order I Rule 8. He, however, sought to justify the non-impleading by contending that the promotees are not necessary parties to the proceedings. He urged that the case involves only the interpretation of a statutory rule and the appellants are impeaching the validity of a decision of the State Government on the ground of violation of Art. 14 and 16(1) of the Constitution, and in such proceedings, the promotees who have been given the benefit of a wrong decision of the State Government are not necessary parties.

We think that the contention is well founded and must be accepted as correct. The primary question involved in these proceedings is as to the necessity for the appellants to pass the prescribed examinations for Assistant Engineers on the date on which the respondents were promoted. The State Government refused to consider the cases of the appellants on the ground that they had not passed the said prescribed examinations. The validity of that decision requires to be tested in these proceedings and it seems to us, that the respondents who have since been promoted on the basis of the impugned decision of the State Government cannot be said to be necessary parties to the proceedings. Our view finds support from the observations of Chinnappa Reddy, J. (as he then was) in B. Gopalaiah v. Government of Andhra Pradesh, AIR. 1969 AP. 204, para 3, in which almost a similar question was considered. The learned Judge observed:

"The learned Government Pleader, however contends that the persons who are likely to be affected if the Memorandum is struck down, namely, the teachers in the other Municipal Schools are not before the court and therefore this Court-should not interfere. I cannot agree. This is not a case of discrimination of individual against individual. This is a case where a whole class of citizens have been discriminated against and the court cannot refute to give relief to them on the ground that the class of persons who will be benefited as a result of the discrimination ate not before the Court. The person who complains of discrimination cannot be expected to search the country for all persons who are likely to be benefited by its discriminatory policy. Of course, if the discrimination is in favour of an individual against an individual different considerations might arise. But this is not such a case. In my opinion, where a scheme formulated by the Government is attacked on the ground of its being discriminatory, the position is precisely the same as if a statute is attacked as being discriminatory and it can never be all answer to such an attack that persons likely to be benefited by a discriminatory statute should be brought before the Court before the statute is struck down."

The Supreme Court in General Manager, South Central Railway v. V.A.R. Siddhanti, AIR. 1974 SC. 1755, while approving the above observations, said:

"20. As regards the second objection, it is to be noted that the decisions of the Railway Board impugned in the writ petition contain administrative rules of general application in permanent departments, fixation of seniority, pay etc., of the employees of the erstwhile Grainship departments. The respondents-petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Arts 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionally of a statutory rule regulating seniority of Government servant is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. . . . The employees who were likely to be affected as a result of the re-adjustment of the petitioner''s seniority in accordance with the principles laid down in the Board''s decision of October 16, 1952, were, at the most, proper parties and not necessary parties, and their non-joinder could not be fatal to the writ petition."

The case on hand cannot be an exception to the above proposition. The preliminary objection raised for the respondents must therefore, fail.

The question next to be considered is whether the 160 posts of Assistant Engineers made available for promotion are new category of posts] in respect of which the service examination rules are not applicable. The learned single Judge has held that they are not new posts. We entirely agree with his view. The records of the case reveal that at present, the total number of Assistant Engineers working in the Department is 1,140 out of which 60 are non-graduates and it is expected that at least 1,000 of them will be made permanent. Forty per cent of those posts are required to be filled up by direct recruitment and the balance of 60% by promotion. Hitherto only 88 persons have been directly recruited in 1962 and to make good the deficiency in the quota reserved for direct recruitment, the cabinet sub-committee first decided to recruit 320 Assistant Engineers with a direction that there should be no promotion to that cadre till all the 320 posts were filled up. But later it was decided that out of the 320 posts, the first 160 shall be filled up by promotion from the cadre of the appellants and in respect of those 160 posts the appellants complain that they have not been considered for promotion. It is therefore clear that the 160 posts with which we are concerned are part of the cadre of Assistant Engineers in the Public Works Department.

This takes us to the question whether it was obligatory for the appellants to have passed the prescribed examinations as on 21st January, 1978, the date on which their juniors were promoted. The decision on the question turns on the scope of the Service Examination Rules and the effect of the Amendments made thereon from time to time. The said rules were made in exercise of the powers conferred by the proviso to Art. 309 of the Constitution with the previous approval of the Government of India as required under sub-section (7) of Sec. 115 of the States Reorganisation Act, 1956. The object of the said rules was that persons employed in the Public Services of the State should be familiar with the Kannada Language and must also pass such tests as would be conducive to and promote the efficiency. Rule 4 imposes restriction on promotion and appointments by transfers. That rule has been amended twice; first by notification dated 12th February, 1976, and second, by notification dated 24th April, 1976. For immediate reference, we set out the said rule hereunder;

4.Restriction on promotion and appointments by transfers: (1) After the expiry of a period of two years from the date of commencement of these rules or from the date of prescription of the service examinations, which-ever is later, no Government servant shall be eligible- (i) for promotion to any higher post, unless he has passed the Kannada Language Examination and the prescribed examinations, if any, for the holder of such higher post and the post already held by him:

Provided that this clause shall not be applicable in respect of the first stage promotion to the higher post on or after 1st November 1956, of a Government servant who has been allotted to serve in connection with the affairs of the State of Karnataka under section 115 of the States Reorganisation Act, 1956;

(ii) for appointment by transfer to any post unless he has passed the Kannada Language Examination and the prescribed examinations, if any, for the holder of such post.

(2) Sub-rule (1) shall not have the effect, (a) for a period of one year from the first of May 1976 in respect of holders of posts for whom service examinations were prescribed on 10th January, 1974, and (b) for a period of one year from the date of expiry of two years from the date of such prescribed examination in respect of holders of posts for whom service examinations have been prescribed after 10-1-1974." Sub-rule (1) of Rule 4 makes it obligatory for Government servants before seeking promotion, to pass the Kannada Language Examination and other examinations prescribed not only for the holders of promotional posts, but also in respect of the posts already held by them. That restriction, however, is not applicable to persons affected by the States Reorganisation Act for the first stage promotion. The service examination Rules initially provided a period of two years for passing the prescribed examinations; but sub-rule (2) of Rule 4 as amended on 24th April, 1976, extended that period by one more year. Clause (a) thereunder deals with holders of posts for whom service examinations were prescribed on 10th January, 1974 and clause (b) deals with holders of posts for whom service examinations have been prescribed after 10th January, 1974. Sub-rule (2) provides that the restriction in the matter of passing the Kannada Language Examination and the prescribed examinations for promotion to any higher post shall not be imposed for a period of one year from the first of May 1976 in respect of holders of posts falling under clause (a) and for a period of one year from the date of expiry of two years in respect of holders of posts falling under clause (b) In other words, the promotion shall not be overlooked during that period merely on the ground that one has not passed the prescribed examinations. That is the true import of sub-rule (2). It is negative in terms; prohibitory in effect and mandatory in character, the object being the grant of a reasonable time for Government servants to pass the Service Examinations after their prescription.

The case of the appellants was that they had still time to pass the prescribed examinations as on the date on which they were overlooked for promotion. At the heart of this case lies the difference between the "prescribed examinations" and the "service examination". They are defined words, and should not be fused and confused with each other while understanding the scope of Rule 4 of the Service examination Rules. Rule 2(4) of the Service Examination Rules defines "prescribed examination" to mean "the service examinations prescribed for the holder of the post as specified in Schedule-II". Rule 2 (6) defines "service examination" to mean "a service examination specified in Schedule-I". Schedule-I of the Service Examination Rules contains a set of Examinations without reference to any post for which they have been prescribed. When some of these examinations are prescribed for passing for the holders of any post, then they become the "prescribed examinations". They are found in Schedule-II.

Sub-rule (1) of Rule 4 imposes a total ban on promotion to any higher post, unless one has passed the Kannada Language Examination and the prescribed examination for the holder of such higher post and the post already held by him. But sub.rule (2) lifts this ban for a period upto first of May, 1977 if the service examinations were prescribed on 10th January, 1974. It also lifts such ban for three years from the date of prescription of service examination, if they have been prescribed after 10th January, 1974. It will be recalled that on 10th July 1975, service examinations prescribed for Junior Engineers were altered by deleting Public Works Engineering Examination and adding Accounts Higher Examination for the holders of posts of Selection Grade Junior Engineers or Junior Engineers. This alteration in the scheme of service examinations, in our view, results in a new prescription after 10th January, 1974 and a fortiori excludes, the operation of sub-rule (I) of Rule 4 for a period of three years from the date of such prescription. That would be the undoubted effect of clause (b) of sub-rule (2) of Rule 4. That means, the appellants for the purpose of promotion, are not required to pass the prescribed examinations for Junior Engineers and also for the Assistant Engineers for three years from 10th July, 1975. To put it in other words, the appellants had time to pass the examinations prescribed for Assistant Engineers and also for Junsor Engineers till 10th July, 1978. Their contention that they ought not to have been overlooked for promotion on the ground that they had not passed the General Law Examination prescribed for Assistant Engineers must, therefore, prevail.

But we cannot accept the other contention urged for the appellants that they were not at all required to pass the prescribed examinations for officiating promotion such as the one given to their juniors. Rule 4(1) does not make a distinction between a promotion on officiating basis, and promotion on regular or permanent basis. The promotion on officiating basis is nonetheless a promotion and a Government servant who seeks such a promotion shall also satisfy the service conditions provided under Rule 4.

That, however, is not the end of the matter. The appellants have to surmount one more obstacle. Rule 4(2)(b) has been further amended during the pendency of their writ petitions. That amendment appears to have remained in obscurity all the while. It was neither noticed nor relied upon by any one of the parties before the learned single Judge. It was only at the stage of reply-arguments before us, the contesting respondents have pressed into service the said amendment to non-suit the appellants. The appellants at that stage sought leave to challenge its constitutional validity and we have already granted leave by a separate order dated 19th December, 1978.

It will now be necessary to consider the validity of the amendment to Rule 4(2) (b) of the Service Examination Rules, made during the pendency of the writ petitions. The said amendment reads as follows;

Notification No. DPAR 12 SSR 78, Bangalore, dated 15-6-1978. G.S.R.158.

1.Title and commencement-(1) These rules may be called the Karnataka Civil Services (Service and Kannada Language Examination) Seventh Amendment) Rules. 1978.

(2) They shall come into force on the date of their publication in the official Gazette.

2.Amendment of rule 4.-After clause (b) of sub-rule (2) of rule 4 of the Karnataka Civil Services (Service and Kannada Language Examination) Rules, 1974, the following proviso shall be and shall always be deemed to have been inserted, namely:

"Provided that, if the same examination has been prescribed on different dates to the holders of a lower post and of a higher post, sub-clauses (a) and (b) shall have effect from the earlier of such dates."

The proviso added R. 4(2)(b) by the aforesaid amendment has been given retrospective effect with a declaration that it shall be and shall always be deemed to have been inserted. The proviso states that if the same examination has been prescribed to the holders of a lower post and of a higher post on two different dates, Cls. (a) or (b) shall have effect from the earlier of such dates.

Reference to clause (a) in the proviso incorrectly stated as "subclause (a) of rule 4(2) refers to. the holders of posts for whom service examinations were prescribed on 10th January, 1974. Clause (a) does not and indeed cannot envisage the prescription of any examination on two different/dates. The prescription of the same examination on two different dates could arise only if it has been prescribed after10th January 1974. If there is any such prescription, then the proviso states that three years, time allowed for passing the prescribed examinations under clause (b) should count from the earlier of such dates. In the case before us, on 10 in January 1974, Accounts Higher Examination was prescribed for Assistant Engineers, and on 10th July 1975, the same examination was also prescribed for Junior Engineers. The effect of the amendment is that the period of three years allowed for passing the prescribed examinations should count from 10th January 1974 and not from 10th July 1975. The appellants ought to have passed all the prescribed examinations before 10th January 1977. The amendment by its retrospective operation has thus neatly nullified the right of the appellants to have their cases considered for promotion on 27th January, 1978. The question is whether such retrospective amendment could vailidly be made in exercise of the powers conferred by the proviso to Art. 309 of the Constitution?

Before considering the question, we are constrained to observe that the amendment in the context and in the timing of it, had an evil eye on the appellants and the criticism of learned counsel for the appellants that it was repugnant to justice appears to be justified. We are, however, not laying stress upon the nature of this conduct as a ground for our decision. We are conscious of the principle that motives and behaviour of the rule-making authority are irrelevant for deciding constitutional validity of the rule. But it may not be out of place to mention that the State while dealing with its officials as employer should not so conduct itself as even to give room for a charge that its action was such as to give room for heart-burn amongst a section of the officials.

Art. 14 of the Constitution enshrines the principle of equality before law. Art. 15 prohibits discrimination against citizens ongrounds only of religion, face, caste, sex, place of birth or any of them. Art. 16 represents one facet of the guarantee of equality. According to this article there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen, it is further provided, shall on grounds only of religion, race, caste sex, decent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of any employment or office, under the State. Art. 14, 15 and 16 underline the importance which the framers of our Constitution attached to ensuring equality of treatment Such equality has a special significance in the matter of public employment As Matheew, J. said in State of Kerala v. N.M. Thomas, AIR 1976 SC. 490 at 516 para 91

". . . .The guarantee of equality before the law or the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality... But the language of Article 16(1) is in marked contrast with that of Article 14 Whereas the accent in Article 14 is on the injunction that the State shall not deny to any person equality before the law or the equal protection of the laws, that is, on the negative character of the duty of the State, the emphasis in Article 16 (1) is on the mandatory aspect namely, that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State implying thereby that affirmative action by Government would be consistent with the Article if it is calculated to achieve it."

Art. 309 of the Constitution confers power on the Governor of a State to make rules regulating the recruitment, and the conditions of service of persons appointed to the State services and posts until provision in that behalf is made by or under an Act of the Legislature. The rules under the proviso could no doubt, be made retrospectively, but while making such rules, care must be taken not to affect the conditions of service guaranteed to the persons under Art. 14 or 16(1) of the Constitution. In State of Mysore v. Padmanabha Charya, AIR 1966 SC. 602, the Supreme Court observed that the power to make rules cannot be used to make declarations like the persons who have been illegally retired shall be deemed to have been lawfully retired. In R.N. Nanjundappa v. Thimmiah, AIR 1972 SC. 1767 at 1775 the Supreme Court said:

"...Rules are meant for recruitment and conditions of service. Rules are not for the purpose of validiating an illegal appointment." In Government of India v. C.A. Balakrishnan,6 the Supreme Court held that the promotion or a person on the basis of seniority-cum merit rule cannot be affected by subsequently making the post a "Selection Post" by changing the rule of promotion. It follows from these principles that the power to make rules relating to recruitment and conditions of service could not be used to validate unconstitutional discrimination in promotional chances of Government servants who belong to the same category. The impugned amendment, according to us, patently suffers from this vice. The appellants, as we have held earlier, were eligible for promotion to the cadre of Assistant Engineers on 21st January 1978 as per the then existing Service Examination Rules, although they had not passed the "General Law" examination. They had time to pass that examination on till 10th July 1978. They could not have been overlooked for promotion since, Art. 16(1) guarantees to them equality of opportunity in matters relating to employment or appointment. But that right has now been taken away by the retrospective amendment to R. 4(2)(b). The amendment while depriving the appellants of the right guaranteed to them under Art. 16(1), has impliedly validated the illegal promotions of juniors.

In M.N. Krishna Murthy v. State of Mysore, W.P. No. 1416/1967 dt. 11-4-1969, a question with almost parallel facts came up for consideration before this Court. The petitioner therein was governed by the service conditions prescribed by the Mysore State Accounts Service Cadre and Recruitment Rules, 1959 made under the proviso to Art. 309 of the Constitution. He was eligible, for promotion, but the authorities without considering his case, promoted his juniors. He, moved this Court in W.P. No. 1416 of 1967 for an order to consider his case as per the Cadre and Recruitment Rules, 1959. The writ petition was filed on 26th June, 1967. On 30th August 1967, the Cadre and Recruitment Rules, 1959 were amended with retrospective effect separating the cadre to which the petitioner belonged and depriving him the right of promotion. The petitioner thereupon, by seeding amendment to the writ petition, challenged the validity of the amended rules on the ground that they offended Art. 14 and 16 of the Constitution. This Court accepted the said contention and declared the amended rules as void. The decision of this Court was also upheld by the Supreme Court in State of Mysore v. Krishnamurthy, AIR 1973 SC. 1146.

Mr. Murlidhar Rao, learned counsel for the contesting respondents however, placed reliance on the decision of this Court in State of Karnataka v. G. Siddalingaiah, 1975 (2) Kar.L.J. 415 and the, decision of the Supreme Court in Raj Kumar v. Union ofIndia, AIR 1975 SC. 1116 He contended that the qualification for promotion retrospectively prescribed by the amended rule, does not offend Art. 16(1) of the Constitution. We do not think that these two cases are of any assistance to the eases on hand. In Suddalingaiah''s, 1975 (2) Kar.L.J. 415 case there was no complaint on the denial of rights guaranteed under Art. 14 or 16(1) of the, Constitution. Even on the merits of the matter the petitioner therein was not found to be suitable for promotion. In Raj Kumar''s, AIR 1975 SC. 1116 case, the Supreme Court was called upon to consider the validity of an order of dismissal of a temporary Government servant-an Airport Ticket Clerk in the Civil Aviation Department of the Government of India. He was dismissed under the Central Civil Services, (Temporary Service) Rules, 1965. On the date of his dismissal he was not paid a sum equivalent to the amount of his pay and allowances for the period of notice at the rate at which he was drawing them immediately before the termination of service. Such payment was obligatory under the rules then existing on the date of the order. But later the said rule was amended with retrospective effect stating that it was not obligatory to pay the aforesaid sum for the period of the notice or for the period by which such notice falls short of one month. The question urged before the Supreme Court was that without a validating provision in the amended rule, the petitioner''s termination could not be construed to be valid. The Supreme Court did not accept that contention. That was all the contention urged therein.

Nor the decision of the Supreme Court in State of Jammu and Kashmir v. Tirloki Nath Khosa, AIR 1974 SC. 1 para, 55 on which the counsel for the respondent relied would support him. The principle laid down in that case was 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. It was also held that the rule, providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders did not violate Art. 14 and 16 of the Constitution.

The case of the appellants stands on a different footing. They were eligible for promotion on the date on which their juniors were promoted. Rule 4(2)(b) as it then stood, showed that acquisition of knowledge by passing the prescribed tests for promotion was not a sine qua non for holding the posts of Assistant Engineers. The appellants had to their credit the qualifying period for passing the tests. To restrict that period by the retrospective rule would certainty deny the right of equality to the appellants.

In this context, it would be apposite to reproduce the, note of caution sounded by the present learned Chief Justice in Triloki Nath Khosa''s, AIR 1974 SC. 1 para, 55, case:

"... But let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment; What after all is the operational residue of equality and equal opportunity."

These words must ever remain enshrined as guiding principle for the State.

For the reasons stated above, the contention urged for the appellants that the amended rule is violative of Art. 16(1) of the Constitute must be upheld.

In the result in reversal of the order of the learned single Judge these appeals are allowed. The rule issued in each of the writ petitions is made absolute. The Karnataka Civil Services (Service and Kannada Language Examination) (7th Amdt.) Rules, 1978 are deputed to be void. A direction shall issue to the State Government to consider the cases of me appellants for promotion to the cadre, of Assistant Engineers with effect from the date or dates on which their juniors were so promoted without insisting on passing of the examinations prescribed under the Service Examination Rules, 1974.

Since the appellants did not raise the validity of the said rule before the learned single Judge, we make no order as to costs.