V.N. Balakrishnan vs State of Kerala and Others

V.S. Malimath, C.J.—These three writ petitions are by the Assistant Engineers in the Radio Branch of the Public Works Department, who have challenged the prescription of the ratio of 1:1 between graduates and non-graduates Assistant Engineers prescribed by the proviso to Rule 2 of the Kerala Engineering Service (Radio and Electrical Branches) Rules, hereinafter referred to as the Rules, for promotion to the cadre of Assistant Executive Engineers (Radio). Rule 2 of the Rules which prescribes the method of appointment to the cadre of Assistant Executive Engineers (Radio) reads as follows:

Appointment.- (a) Appointment to the categories specified in column (2) of the Table below shall be by the method specified in . the corresponding entry in column (3) thereof.

Sl. No. Categories Method of appointment (1) (2) (3) * * * * 2. Assistant Executive 1. Recruitment by transfer from Engineer (Radio) category of Assistant Engineer (Radio) of the Kerala Engineering Subordinate Service (Radio Branch). 2. In the absence of suitable candidates for appointment by transfer by direct recruitment (b) Promotion and appointment by transfer shall be made from select list of eligible officers prepared on the basis of merit and ability, seniority being considered only where merit and ability are approximately equal. Persons included in a select list shall be ranked in the order of their seniority:

Provided that a ratio of 1:1 shall be followed between graduates and non-graduates for appointment to the post by transfer, without stipulation of cadre strength.

Qualifications for the post of Assistant Executive Engineers (Radio) are prescribed by Rule 3 of the Rules, which read as follows:

Assistant Executive 1. For recruitment by transfer: Must Engineer (Radio) have rendered service as Assistant, Engineer in the Radio Branch on duty for a period of not less than, (a) Five years in case he is a Degree-holder; (b) Ten years in case he is a Diploma-holder; and (c) Fifteen years in case he is a Certificate-holder. It is clear from the above Rule that degree-holders with five years'' service, diploma-holders with ten years'' service and Certificate-holders with 15 years'' service in the cadre of Assistant Engineers (Radio) are treated as eligible for promotion to the cadre of Assistant Executive Engineers (Radio). Appointment by transfer to the said category is required to be made from a select list of eligible officers prepared on the basis of merit and ability. The proviso to Rule 2 of the rules was added by Notification dated 2nd August 1983 with retrospective effect from 13th May 1981 by which a ratio of 1:1 is prescribed for promotion to the cadre of Assistant Executive Engineers (Radio) between graduates on the one hand and the non-graduates on the other. It is this prescription of the ratio of 1:1 between graduates and non-graduates that is challenged by the Petitioners on the ground that it is violative of Articles 14 and 16 of the Constitution. Though in one writ petition the prescription of different number of years of service for degree-holders, diploma-holders and Certificate-holders is also challenged, no arguments in that behalf were advanced during the course of hearing of these cases, obviously for the reason that the contention in that behalf stands concluded by the recent decision of the Supreme Court in Roop Chand Adlakha and Others Vs. Delhi Development Authority and Others,

The principal contention of the Petitioners is that graduates and non-graduates having come to the common cadre of Assistant Engineers (Radio) and thus having 4 merged into a single category, it is not constitutionally permissible to treat them differently in the matter of promotion to the cadre of Assistant Executive Engineers (Radio) by prescribing a ratio of 1:1, between graduates non-graduates. In other words, the Rules regard graduates with five years'' experience on the, one hand and diploma-holders with ten years'' experience and Certificate-holders with fifteen years'' experience as equally eligible for promotion to the cadre of Assistant Executive Engineers (Radio). When appointment by transfer is required to be made by appointment of officers on the basis of merit and ability, the prescription of the ratio of 1:1 between graduates on the one hand and the non-graduates on the other it is urged results in hostile discrimination against non-graduates rendering the proviso prescribing such ratio void as offending Articles 14 and 16 of the Constitution. According to the Petitioners, it is well-settled law that once the graduates and non-graduates have come into a common cadre and thus merged into one entity, any differentiation " whatsoever to be made on the basis of their educational qualifications in the matter of promotion to the next higher category is bad. We find it difficult to accede to this tall claim made on behalf of the Petitioners. Articles 14 and 16 of the Constitution clearly permit classification being made. A classification can certainly be made on the basis of the qualifications and experience for promotion to the next higher cadre, provided the classification made is rational and has a just relatioti or nexus to the object to be achieved. If, having regard to the requirement of service persons possessing higher technical skill are required for discharging the duties and responsibilities of the higher post, the rule-making authority would be well within its right in prescribing that persons possessing such higher technical skill or experience alone from the common category that would be eligible for promotion to the next higher category. This question is no more rest Integra as it stands concluded by the judgment of the Supreme Court in the decision reported in The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, That was a case where persons appointed directly and by promotion were integrated into a common class of Assistant Engineers. For the purpose of promotion to the next, higher category of Assistant Executive Engineers, the rule provided that it is only graduates that will be eligible, to the exclusion of diploma- holders. The'' Supreme Court after examining the scheme of the Rules and the requirements of service, came to the conclusion that for proper discharge of the functions of the Assistant Executive Engineers'' posts, it is necessary to have persons with higher technical qualifications, that is, graduates. This decision is therefore a clear authority for the proposition that both graduates and non-graduates though merged into a common category, graduates alone can be preferred in the matter of promotion to the next higher post provided the possession of higher qualification of graduation is necessary for a proper and satisfactory discharge of the functions of the higher posti In the recent decision of the Supreme Court reported in N. Abdul Basheer and Others Vs. K.K. Karunakaran and Others, the Supreme Court was required to examine the validity of the rule prescribing the ratio of 1:3 between graduates and non-graduates, for promotion to the post of II Grade Excise Inspector from the post of Excise Preventive Officer. Though the Supreme Court declared the prescription of the said ration as void as violative of Articles 14 and 16 of the Constitution, it did so on the ground that the considerations that weig''hed in the prescription of'' such a ratio has no relevance to the object of the measures framed by the Government. The relevant discussion in this behalf can be extracted with advantage, as contained in paragraph 15 of the judgment which reads:

The other contention raised before the High Court, namely, that the ratio 1:3 between graduates and non-graduates is supportable on the ground that the recognition of graduation is recognition of merit, and that more merit in the post of Excise Inspectors would bf conducive to better administrative efficiency, is shortly disposed of. Ordinarily, it is for the Government to decide upon the considerations which, in its judgment, should underline a policy to be formulated by it. But if the considerations are such as prove to be of no relevance to the object of the measure framed by the Government it is always open to the Court to strike down the differentiation as being violative of Articles 14 and 16 of the Constitution. In the present case, we have already commented on the circumstance that the conditions of employment and the incidents of service recognise no distinction between graduate and non-graduate officers and that for all material purposes they are effectively tieated as equivalent. Accordingly, the contention must also be rejected....

It is clear from this pronouncement of the Supreme Court that the ratio prescribed by the rule between graduates and non-graduates offended Articles 14 and 16 of the Constitution as thp reasons put forward by the State in support of the prescription of such ratio were found to be not relevant to the object sought to be achieved by such prescription. The prescription of a ratio between graduates and non-graduates, it is clear, can therefore pass the test of Articles 14 and 16 if the same is based on relevant considerations which have a just relation to the object sought to be achieved. The question as to whether such differentiation between graduates and non-graduates has just relation with the object sought to be achieved depends upon the scheme of the rules, the requirements of the service and the relevant facts and circumstances. Hence, whenever "a rule prescribing a ratio between graduates and non-graduates is challenged on the ground that the prescription of the ratio is violative of Articles 14 and 16, if the State is not in a position to establish that the prescription of such a ratio is justified by relevant considerations, the same has to be declared void as offending Articles 14 and 16 of the Constitution. That is precisely what has been elucidated in Anr. recent judgment of the Supreme Court reported in Roop Chand Adlakha and Others Vs. Delhi Development Authority and Others, That was a case in which the rules regulating promotion from the cadre of Junior Engineers to the cadre of Assistant Engineers and from the cadre of Assistant Engineers to the cadre of Executive Engineers were challenged, on the ground that prescribing different conditions for graduates and diploma holders is violative of Articles 14 and 16 of the Constitution. The Rules examined by the Supreme Court in the said case prescribe that Junior Engineers who are degree holders with 3 years'' service and Junior Engineers, who are diploma holders with 8 years'' service, are eligible for promotion in respect of 50 per cent of the posts available for promotion in the proportion of 25 per cent: 25 percent. The said Rules further provide that the Assistant Engineers who are degree holders with 8 years experience and Assistant Engineers who are diploma holders with 10 years'' experience are both eligible for promotion to the cadre of Assistant Executive Engineers. The High Court of Delhi has struck down these rules. The Supreme Court reversed the decision of the Delhi High Court and upheld the validity of the Rules. The Supreme Court held that the rule prescribing longer period of service for diploma holders as compared to degree holders is not discriminatory. The Supreme Court upheld the rule prescribing a ratio between degree holders and diploma holders for promotion to the cadre of Assistant Engineers, reversing the decision of the Delhi High Court which had struck down the rule as violating Article 14 and 16 of the Constitution. The reasons for the said decision are to be found in paragraph 9 of the judgment, which may be extracted as follows:

...In Triloki Nath''s case diploma holders were not considered eligible for promotion to the higher post. Here, in the present case, the possession of a diploma, by itself and without more, does not confer eligibility. Diploma, for purposes of promotion, is not considered equivalent to the degree. This is the point of distinction in the situations in the two cases. If diploma holders-of course on the justification of the job-requirements and in the interest of maintaining a certain quality of technical expertise in the cadre-could validly be excluded from the eligibility for promotion to the higher cadre, it does not necessarily follow as an inevitable corollary that the choice of the recruitment policy is hmited only two choices, namely, either to consider them ''eligible'' or ''not eligible''. State, consistent with the requirements of the promotional posts and in the interest of the efficiency of the service, is not precluded fron conferring eligibility on diploma holders conditioning it by other requirements which may., as here, include certain quantum of service-experience. In the present case, eligibility-determination was made by a cumulative-criterion of a certain educational qualification plus a particular quantum of service experience. It cannot, in our opinion, be said as postulated by the High Court, that the choice of the State was either to recognise diploma holders as ''eligible'' for promotion or wholly exclude them as not eligible''. If the educational qualification by itself was recognised as conferring eligibility for promotion, then, the superimposition of further conditions such as a particular period of service, selectively, on the diploma holders alone to their disadvantage might become discriminatory. This does not prevent the State from formulating a policy which prescribes as an essential part of the conditions for the very eligibility that the candidate must have a particular qualification plus a stipulated quantum of service-experience. It is stated that on the basis of the ''Vaish-Committee'' Report, the authorities considered the infusion of higher academic and technical quality in the personnel requirements in the relevant cadres of Engineering Services necessary. These are essentially matters of policy. Unless the provision is shown to be arbitrary, capricious, or to bring about grossly unfair results, judicial policy should be one of judicial-restraint. The prescriptions may be somewhat cumbersome or produce some hardship in their application in some individual cases; but they cannot be struck down as unreasonable, capricious or arbitrary. The High Court, in our opinion, was not justified in striking down the Rules as violative of Articles 14 and 16.

It is clear from this decision that the State is not prevented from formulating a proper policy which prescribes as an essential part of the conditions for the very eligibility that the candidate must have a particular educational qualification plus a stipulated quantum of service-experience. The Supreme Court pointed out that the policy of the rule-making authority was based on the ''Vaish Committee'' Report, which, recommended the infusion of higher, academic qualification and technical quality in the personnel requirements in the relevant cadres of Engineering Services necessary. It is clear that the Supreme Court was satisfied that the prescription of the ratio for promotion between the degree holders and diploma holders is justified, having regard to the requirements of service. The justification was based on the ''Vaish Committee'' Report which said that it is very necessary to infuse in the Engineering Service men with higher academic and technical qualifications. In other words, the Supreme Court has held that if the requirements of the service justify a preferential treatment being accorded to degree holders, the statutory provision conferring such a preferential treatment cannot be regarded as violative of Articles 14 and 16 of the Constitution.

The clear picture that emerges on a careful study of all the decisions of the Supreme Court is that it is the well-settled principles of equality before law and equal opportunity in the matter of appointments enshrined under Articles 14 and 16 of the Constitution that nave been applied to test the validity of different sets of service rules. What is prohibited is discrimination between one class of persons and Anr. , if as regards the subject matter of the statutory provision, their position is the same. Articles 14 and 16 of the Constitution do not prohibit reasonable classification for the purpose of achieving the object of the Rules. In order to pass the test of permissible classification, two conditions have to be fulfilled; viz., (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from Ors. left out of the group and (ii) that, that differentia must have a rational relation to the object sought to be achieved by the statute. What we find in all the decisions of the Supreme Court is the application of these principles to different situations emerging from different pattern of service rules. It is seen that different qualifications are prescribed for appointment to the same post. The different qualifications are educational or educational qualifications and experience or service for the specified periods. Among the educational qualifications, some are higher than the Ors. , such as degrees and diplomas. When persons possessing such different qualifications are appointed to a particular post, they are ordinarily considered on par with each other in all respects in regard to the posts held by them. But in some rules providing for promotion from such posts to the next higer post, differential treatment is meted out to holders of the same posts depending on the quality of the educational qualifications possessed by them. In some cases promotional post are reserved exclusively in favour of those prossessing higher qualifications. In some cases a particular percentage of promotional posts are reserved in favour of those possessing the higher qualifications. In some other cases, a ratio or quota is prescribed between those possessing higher and lower qualifications. In other cases, some percentage of promotional posts are made available to those possessing lower qualifications. In some cases different periods of service or experience is prescribed depending upon the qualifications possessed. The Supreme Court has not held that such differentiation is not at all permissible or that it will offend Articles 14 and 16 of the Constitution. The rules providing for such differentiation must firstly be examined to find out if the classification made on the basis of different qualifications is founded on an intelligible differentia. If the classification passes this test, then it has to be examined if the differentia has a rational relation to the object sought to be achieved by the impugned rules. In these cases, there was no problem regarding satisfaction of the first test. The Supreme Court examined the respective rules with'' reference to the pleadings of the parties, the justification pleaded by the State, the qualifications prescribed, the requirements of the promotional posts, the interest of efficiency and all other relevant facts and circumstances to find out if the differentia has a rational relation to the object sought to be achieved by the rules. The object of the rules depends primarily on the requirements of the service-promotional posts and the interest of efficiency. Such of the rules that passed this test were upheld; for example, The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, and Roop Chand Adlakha and Others Vs. Delhi Development Authority and Others, and such of the rules that did not satisfy this test were struck down, as in N. Abdul Basheer and Others Vs. K.K. Karunakaran and Others, . Hence it is not possible to say that the Supreme Court has laid down that once the graduates and non-graduates come into a common cadre and get merged into a single entity, any further differentiation among them on the basis of their eductional qualifications for the purpose of promotion to the next higher post would be discriminatory and violative of Articles 14 and 16 of the Constitution. That depends upon whether such differentia has a rational nexus with the requirements of the promotional post.

In view of the clear pronouncements of the Supreme Court, what we have to examine in this case is as to Whether the requirements of service, that is of the cadre of Assistant Engineers (Radio), justify prescription of the ratio of 1:1 between graduates arid non-graduates for promotion. The Petitioners have no doubt pleaded that the graduates and non-graduates Assistant Engineers discharge the same duties and responsibilities and that non-graduates also possess the requisite technical qualification, skill and expertise for discharging the duties and responsibilities of the next higher post of Assistant Executive Engineer (Radio). It is further asserted that when non-graduate Assistant Engineers (Radio) are under the Rules rendered eligible for promotion to the cadre of Assistant Executive Engineers (Radio), the prescription of ratio 1:1 between graduates and non-graduates is likely to defeat the object of the rule, which is to ensure that most competent among the Assistant Engineers are promoted to the cadre of Assistant Executive Engineers (Radio). The State on the other hand has Pleaded special facts and circumstances that justify the amendment of the rule and the incorporation of the proviso, by which the ratio of 1:1 is prescribed between the graduates and non-graduates. For the sake of convenience we shall extract paragraphs 10 to 13 of the counter-affidavit filed in Q.P. No. 4706 of 1983 by the first Respondent, as follows:

At the time when the Radio branch was organised in the Public Works Department, electronics was not a highly developed subject as at present. It was being taught along with other connected subjects as it had not received much attention at that time. The tremendous advancement in the field of electronics has resulted in the subject becoming a very specialised one which is taught as a separate course from the Degree levels in Colleges. Therefore, obviously, it is not a subject in which proficiency is possible without special education. The proper functioning of the Radio wing depends on the availability of qualified hands and in view of the advancement in the subject specially trained persons are necessary. Such specialists became available only recently and it was under these circumstances that a ratio was introduced by amending the Special Rules for promotion to the category of Assistant Executive Engineer. There is nothing unjust or illegal in this action of the Government.

Giving recognition to a qualification is not denial of opportunity. It cannot be claimed that the graduates who have been specially trained are on an equal footing with the non-graduates, especially in view of recent developments in the subject. The Petitioner has not been denied promotion as avenue for promotion is still open to non-graduates. The Petitioners chances of promotion cannot be made a ground for blocking the government''s attempt to get better qualified persons, and thus ensure efficiency in the Department;

There are only 8 posts of Assistant Executive Engineers (Radio) in the Department. 2 posts are at present lying vacant and five posts are held by non-graduates. Since the presence of the specialists in the higher posts cannot be achieved without fixing a ratio so as to give the specialists some weightage, the amendments introducing the ratio cannot be held to be illegal.

It is submitted that it is open to the Government to fix the qualifications for any post in public interest. The Government have after due consideration decided that a ratio of 1:1 has to be adopted for promotion to the category of Assistant Executive Engineer, between Graduates and non-Graduates. While it is desirable to fix graduation as minimum qualification for the post of Assistant Executive Engineer, this could not be done earlier due to dearth of sufficient number of graduates. Length of service will not alone qualify a person for promotion in a speciality such as electronics as there has been tremendous and rapid progress in this field. It is not possible for the Department to keep pace with the advancement in this field without bringing the graduates to the top giving them the due recognition. Therefore it may be seen that there has been no violation of any provisions of the constitution.

The case of the State is that for the purpose of appointment to the post of Assistant Executive Engineers, it is desirable to fix graduation as the minimum qualification. Though this is the requirement, having regard to the nature of duties and responsibilities that are required to be discharged by the Assistant Executive Engineers, the State was not in a position to prescribe graduation as the minimum qualification for the said post, as there was dearth of sufficient number of graduates. It is said that when the Department was started, graduates were not available. Hence non-graduates who do not have adequate technical knowledge were treated as eligible for promotion to these posts. As graduates are now becoming available it is stated that the state felt it necessary to amend the Rules to ensure that adequate number of graduates come to the position of Assistant Executive Engineers (Radio). The State has specifically stated that there has been considerable advancement in the field of Electronics and therefore the requirements of the Department cannot be met by personnel not having the required technical skill. With a view to have adequate number of persons with the required technical skill, the State has made a provision to ensure that 50 per cent of the post of Assistant Executive Engineers are filled up from among the graduate Assistant Engineers. Without the service of highly qualified persons, namely the graduates, it is stated, the Department will not be able to keep pace with the advancement in the field. The clear effect of the stand taken by the state is that it is by way of concession that non-graduates were made eligible for promotion to the cadre of Assistant Executive Engineers, though they are inadequate for these posts. This was done because adequate number of trained graduates were not available at the relevant point of time. Having regard to the dearth of persons with adequate technical skill, namely graduates at the relevant point of time, the state thought of managing the Department with the less qualified non-graduates. What is sought to be done by the amendment is to reduce the extent of concession shown to the non-graduates by making a provision to the effect that 50 per cent of the posts shall be filled up from among the graduate Assistant Engineers. As non-graduates are found to be inadequate for the purpose of discharging the duties and responsibilities of Assistant Executive Engineers (Radio), an attempt is made to ensure that at least 50 per cent of the holders of these posts are graduates. About 50 per cent of the posts become available to diploma holders not because they are adequate for the post but by way of concession and with a view to avoid frustration in the service. The prescription of the ratio of 1:1 between graduates and non-graduates, far from discriminating against diploma holders, metes out a favo-ourable treatment. If at all it is the graduates who are really affected by continuing the concession shown to the less-qualified non-graduates who are inadequate for the job. This is precisely the stand taken in paragraphs 4 and 7 of the counter-affidavit filed by Respondent No. 8 in O.P. No. 3694 of 1981, which are extracted as follows:

The Radio Branch in the Engineering Service was constituted long ago. At that time the only work to be undertaken was to repair the radio sets. But due to the development in communication system this Branch has developed a great extent. The personnel in the Department have now to undertake the work relating to TVs, Telephone Exchanges, Tape Recorders, VCRs Public Address and Genference Systems etc. Admittedly, the Petitioner is qualified only in Radio repairing. The above works can be efficiently carried out only by graduates in Telecommunication Engineering or other similar specialities. As all the senior persons are only certificate holders like the Petitioner to make available qualified hands a ratio was prescribed for graduates in the category of Assistant Engineer and Assistant Executive Engineer. This is necessary in the interest of exigencies of service. On the other hand, if all the persons holding the responsible positions as Asstistant Executive Engineers are only certificate holders in Radio repairing like the Petitioner, the public interest will suffer a lot. At the same time chances for bettering their position have to be provided for senior persons as well. That is why separate ratio for graduates is prescribed in Ext. R-8(a),

* * * * * * * * 7. Appointment as Assistant Executive Engineer is not based on ratio alone; at the same time separate experience qualification is also prescribed. Merely because a person is a senior non-graduate he cannot claim the post of Assistant Executive Engineer following the ratio. He should have at least 10 years'' service as Assistant Engineer in case of diploma holders and 15 years in the case of certificate holders. On the other hand, a graduate need only have five years'' experience. This is also a mandatory provision with regard to qualification and an inseparable part of the rule to work out along with ratio. Therefore it is not a case where non-graduates are discriminated prescribing separate ratio, but a case of valid prescription of a particular experience qualification to get well equipped persons to man responsible posts which require specialised skill to cope with technological advancement and consequent development in communication systems. So Ext. P-3 or Ext. R-8(a) cannot be termed as illegal, void or unconstitutional as contended by the Petitioner.

What has been stated in the counter-affidavit of the 8th Respondent stands unrebutted as no reply affidavit has been filed by the Petitioner in the said writ petition. It is clear from the statement of the 8th Respondent that non-graduates did not have the technical equipment to undertake any work relating to TVs.. Telephone Exchanges, Tape Recorders, Public Address and Conference Systems, as their knowledge and technical skill is limited to radio repairing. Thus it becomes very clear that the technical skill possessed by the non-graduates is inadequate to meet the requirements of the service of the Radio Engineering Service. It is therefore clear that without the requisite number of graduates being there to man the posts of Assistant Executive Engineers; the Department cannot carry on its functions satisfactorily as the non-graduates are not at all equipped to deal with the advanced technology in respect of TVs, VCRs, Tape Recorders, Telephone Exchanges, Public Address and Conference Systems etc. On a consideration of all relevant facts and circumstances, we have no hesitation in taking the view that the rules far from discriminating against the non-graduates, have shown favour to the non-graduates. A concession has been shown to them by rendering them eligible for promotion to the post of Assistant Executive Engineers (Radio) even though they do not possess the technical skill required for the post of Assistant Executive Engineers (Radio). The non-graduates cannot therefore complain about discrimination. The challenge to the proviso to the rule prescribing the ratio of 1:1 between graduates and non-graduates is not liable to be declared void as violating Articles 14 and 16 of the Constitution of India.

For the reasons stated above, these writ petitions are dismissed. No costs.