# [1978] 1 S.C.R. 787

- **Citation:** [1978] 1 S.C.R. 787
- **Court:** Supreme Court of India
- **Decided:** 1977-11-04
- **Bench:** S. MuRTAZA FAZAL ALI, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1978-1-s-c-r-787-7320
- **Pages:** 10

## Headnote

Constitution of India, 1950, Articles 14 and 16--Appellant appointed as an
Executive Engineer ten1porarily by pron1otio11 by rirt11e of his specialised qualification in rhe absence of any rule n1ade prescribillK qualification .. \· for the post
of Execuri1·e En>:ineer-Powers of the a11tliorities in such
cases
fo,
appoint
person~ ID vosts-W'hetfler 11011-consideration of the cases of responden/s 3 re 28
who were niere graduates in Engineerlnlg riolates Arts. 14 and 16.
The appellant, a B.Sc. Engineering degree-holder in
Tcle-Cornmuntcation
was appointed as an Assistant Engineer (Tele-Comn1unication) in September
1963 by the Biha·r State Electricity Board and was sent abroad to the
headquarters of Mis. Brown Boveri and Co.
Ltd.,
Badan,
Switzerland
for six
months' specialised training in pov.'er line carrier, telc-metering and tele-control
equipment in the modern power system.
On his
return the
appella_nt
'vas
deptlleJ to look after the entire tele-communicatiOn system of the Board.
ln
June 1968, the Board felt the necessity of maintenance of efficient communication service between the vital centres of generation, utilisation and administration for ensuring reliability and continuity in power supply which would facilita-te quick supervision and checking of the then existing arrangements at the
generating stations receiving sub-stations and
distributing
areas as also
the
necessity of proper supervision and handling by trained and qualified personnel
of a large number of wave-change-over communication equlpntents on 33 KW
Transn1ission line which had been installed
in the
Tele-Communication SubDi\·ision of the Board at Patna and were maintained and a-1.igned with the help
of special electronic instruments.
The Board, therefore, accorded <;anction to
the creation of a ten1porary Tele-Communication Division with headquarters at
Pa·!na nnd nlso to the creation of a
temporary
post of Executive Engineer
(Tele-Communication).
As per the
recommendation of its
expert Selection
Committee to the effect that the appellant was fit to be promoted to the rank
of ihe Executive En~ineer (Tele-Communication) in view of the f<lct that he
hnd consistently good record of service, possessed the degree in Tele-Con1mun1cation Engineering, had undergpnc special
training in
Switzerland
in TeleCo1nmunication. had ever since his return from Switzerland been
~a·tisfactor'1ly
perfo1 ming the onerous and complex duties
assigned to
him and had
been
looking after the entire Tele-Communication
svstem of the
Board and had
1·hu5 aCquired a valuable practical experience in 'that field \1.'hich \\.'?.<> necessary
to man the post of Executive Engineer (Tele-Comn1unication), the
anoeiT.·lnt
wa;; apnointed ten1porarily on promotion to
the post of Executive
Engineer
(Tele-Communication).
Thereupon
respondents 3 to 28
who are Assistant
Electrical Engineers appointed. a-s such. earlier to the appellant challeftg~d the
said appointment in the Patna High Court averring that the promofiori of the
arpellant was n1ala fide; they were seniors to the -appellant and pos<;cssrd the
reauisite qualifications; their cases must h<\ove been
considered hv the Boar{\;
and their superscssion is in violation of guarantee of equality nf ooportunt1v
enshrined in Articles 14 and 16 of the Constitution.
The High Court quashed
the said orders and held that the case of respondents 3 to 28 who \1/ere seniors
to :ind had better experience and academic ca·reer than the appellaiit had been
unju5tifiably i~nored by the Board violating the orotection of equal opportunity
gunianteed under Arts. 14 and 16 of the Constitution. In appeal by certificate.
respondents 3 to 28 though served did not choose to aonear.
Resoondents 1
and 2 contended : (i) th~t Tele-Communica·tion is a hifJ:hly specialised subject
quite distinct from that of _general
electricity; (ii)
that re5pondeftts 5 to 28
who \Vere merely 'graduates of Science in Electrical -Engineering were not quali·
fied for the post of Executive Engineer (

## Text

-
.l
787
RAMESH PRASAD SlNGH
l'.
STATE OF BIHAR & ORS.
November 4, 1977
[S. MuRTAZA FAZAL ALI AND JASWANT SINGH, JJ,J:
Constitution of India, 1950, Articles 14 and 16--Appellant appointed as an
Executive Engineer ten1porarily by pron1otio11 by rirt11e of his specialised qualification in rhe absence of any rule n1ade prescribillK qualification .. \· for the post
of Execuri1·e En>:ineer-Powers of the a11tliorities in such
cases
fo,
appoint
person~ ID vosts-W'hetfler 11011-consideration of the cases of responden/s 3 re 28
who were niere graduates in Engineerlnlg riolates Arts. 14 and 16.
The appellant, a B.Sc. Engineering degree-holder in
Tcle-Cornmuntcation
was appointed as an Assistant Engineer (Tele-Comn1unication) in September
1963 by the Biha·r State Electricity Board and was sent abroad to the
headquarters of Mis. Brown Boveri and Co.
Ltd.,
Badan,
Switzerland
for six
months' specialised training in pov.'er line carrier, telc-metering and tele-control
equipment in the modern power system.
On his
return the
appella_nt
'vas
deptlleJ to look after the entire tele-communicatiOn system of the Board.
ln
June 1968, the Board felt the necessity of maintenance of efficient communication service between the vital centres of generation, utilisation and administration for ensuring reliability and continuity in power supply which would facilita-te quick supervision and checking of the then existing arrangements at the
generating stations receiving sub-stations and
distributing
areas as also
the
necessity of proper supervision and handling by trained and qualified personnel
of a large number of wave-change-over communication equlpntents on 33 KW
Transn1ission line which had been installed
in the
Tele-Communication SubDi\·ision of the Board at Patna and were maintained and a-1.igned with the help
of special electronic instruments.
The Board, therefore, accorded <;anction to
the creation of a ten1porary Tele-Communication Division with headquarters at
Pa·!na nnd nlso to the creation of a
temporary
post of Executive Engineer
(Tele-Communication).
As per the
recommendation of its
expert Selection
Committee to the effect that the appellant was fit to be promoted to the rank
of ihe Executive En~ineer (Tele-Communication) in view of the f<lct that he
hnd consistently good record of service, possessed the degree in Tele-Con1mun1cation Engineering, had undergpnc special
training in
Switzerland
in TeleCo1nmunication. had ever since his return from Switzerland been
~a·tisfactor'1ly
perfo1 ming the onerous and complex duties
assigned to
him and had
been
looking after the entire Tele-Communication
svstem of the
Board and had
1·hu5 aCquired a valuable practical experience in 'that field \1.'hich \\.'?.<> necessary
to man the post of Executive Engineer (Tele-Comn1unication), the
anoeiT.·lnt
wa;; apnointed ten1porarily on promotion to
the post of Executive
Engineer
(Tele-Communication).
Thereupon
respondents 3 to 28
who are Assistant
Electrical Engineers appointed. a-s such. earlier to the appellant challeftg~d the
said appointment in the Patna High Court averring that the promofiori of the
arpellant was n1ala fide; they were seniors to the -appellant and pos<;cssrd the
reauisite qualifications; their cases must h<\ove been
considered hv the Boar{\;
and their superscssion is in violation of guarantee of equality nf ooportunt1v
enshrined in Articles 14 and 16 of the Constitution.
The High Court quashed
the said orders and held that the case of respondents 3 to 28 who \1/ere seniors
to :ind had better experience and academic ca·reer than the appellaiit had been
unju5tifiably i~nored by the Board violating the orotection of equal opportunity
gunianteed under Arts. 14 and 16 of the Constitution. In appeal by certificate.
respondents 3 to 28 though served did not choose to aonear.
Resoondents 1
and 2 contended : (i) th~t Tele-Communica·tion is a hifJ:hly specialised subject
quite distinct from that of _general
electricity; (ii)
that re5pondeftts 5 to 28
who \Vere merely 'graduates of Science in Electrical -Engineering were not quali·
fied for the post of Executive Engineer (Tele-Communication').
Respondents
A
J)l .
E.
A
B
c
D
E
G
788
SUPREME COURT REPORTS
[1978] 1 S.C.R.
3 and 4 who had only studied tele-communication as one o(
the
subjects in
their final B.Sc. Engineering Examination also were not equally qualified; (iii)
that they had no right to n1aintairi the writ petition; and (iv) that there wa5
no question of any breach or violation of the guarantee of equality of opportunity contained in Articles 14 a·nd 16 of the Constitution.
Allo;.ving the appeal, the Court,
HELi) : ( 1) The process of rule making is a protracted rind
complicatecl
one involving consultation with various authorities and compliance wilh n1aru .•
fold formalities.
Exigencies of
administration at ti1nes
require in1n1ediate
cre<l'lion of service or posts and any procrastination in that behalf cannot hut
prove dctrin1ental to the proper and efficient functioning of public departments.
In such like situations, the authorities concerned would have the p0¥.'er to appoint or terminate adn1inistrntive personnel under the general power of adn1in1stration vested in them.
Jn the absence of rules, qualifications for a post can
validly be hi-id down in the self san1c executive order creating the service or
po~t and filling it up according to those qualifications.
[792 A-D]
IJ. 1V. 1\lagaraja11 & Ors. v. State of Mysort· & Ors. [19661 3 SCR 682 and
T. Cajee v. U. Jonnanik Sie111 & Anr. [1961] 1 SCR 750 at 764, followed.
(2) The doctrine of equality before law and equal protection of laws «·nd
equality of opportunity in the matter of employment and promotion enshrined
in Articles 14 and 16 of the Constitution which is intended to advance justice
by avoiding discrimination is attracted only when
equals are
tre<lte9 as iinequ;1ls or v.·hcre unequals are treated as equals. The guarantee of equality does
not in1ply that the same rules should be made applicable in spite of differences
in their circun1stances and conditions.
Although Articles 14 and 16 of the
Constitution forbid hostile discrimination, they do not forbid reasonable classification and equality of opportunity ill matters of pron1otion means
equality
as between n1cmbers of the sa-me class of
employees and not equal betv.:een
rne1nbers of scpnr:.:i-te independent classes.
Though the concept of equal protection
~lnd equnl opportunity undoubtedly permeats the \vholc spectrum of an
individual's ernployn1ent from appointment through
promotion and te_rmination to the payment of gratuity and pension, it has an inherent limitatiotl ·:'i·ns~
ing from the very nature of constitutional guarantee.
Equality i<> for equals,
that i-., vvho arc similarlv circumstanced are entitled to an equal trea-tinent but
the guarantee enshrined ·in Articles 14 and 16 of the
Constitution cannot be
carried beyond the point which is well~settled by a catena of decisions of tbio;
Court.
1792 H. 793 A-J)]
ll1d. U.una11 & Ors. v. State of Andhra Pradt-sh [19711 2 SCC 188; AIR
1971 SC 1801; Cldranjit Lal Chowdliuri v. The U11io11 of India & Ors. [19501
SCR 869 at 911 and All India Station Masters' & Assis/ant Station Masters'
A.uociatfon & Ors. v. General Manager, Central Railwa)' & Ors. [1960] 2 SCR
311. 316--A JR I 960 SC 384, 386, referred to.
(3) ln the instant case :
(a) T-he High Cou11 was in error in thinking
th&t
respondents
3 to 28
possessed qualifications equal to the appellant or that they \Vere eligible for the
1ob. [792 GJ
(b) It is evident from the perusal of the proposal for creation of a TeleCornmunication Division at Patna and the aforesaid reco1nmenda·tion made 'by
the Selection Committee in favour of the appellant that for ensuring reliability
and continuity in power supply it 'Nas absolutely essential that m<lintenance ot
the sophistica-ted wave-change-over
communication
equipments
of 33 KW
instaJlcd by the Board in the Tele-Communication Sub-Division should be entrusted to specially trained experienced and qualified officer possessiil!! specialised
theoretical and praetic<ll knowledge of Tele-Comnu1nication \vhich is a subJe;;t
quite distinct from that of general electricity.
lt was only the appellant who
possessed degree in B.Sc. Engineering in Tele-Communica.tion. was separately
recrnitcJ and specially trained in that line in
Switzerland
;ind thus acquired
specialised kno\vledge therein and acquitted himself creditahly in tbe field for
'··
.
'
•
-
•
~- P. SINGH v. BIHAR (Jaswant Singh, J.)
789
five years who could be said to possess the rcquisit~ qualification and be conA
sidercd fit and suitable for the job in question and not a•ny
one
of the respondents 5 to 28 who \Vere mere graduates in electrical engineering or respon-
{]ents 3 and 4 who had studied tele-communication only as one of the subjects
in their final B.Sc. Engineering Examination. [792 A-G]
(c) The qualification required for the post of Executive Engineer (TelcCon1nn1nication) as demonstrably reflected in the proposal for creaotion-- of that
post and the aforesaid recommendation of the Selection Committee setting out
various factOrs which went in favour of the promotion of the appellant appear
B
10 be founded on reasonable
classification having an intelligible
d1tterent1a
which dislinguished the appellant from respondents 3 to 28 and the d1ffercnl1a
ilad a reasonable relation to the object sought to be achieved. [795 D-E]
R.espondents 3 to 28 had no legal right which they
could clain1 to h~ve
been denied to then1 by an a-uthority which had a legal duty to do something.
fhe High Court \Vas not right in issuing the writ of mandamus. [795 E]
Mani Subrat Jain & Or.\·. v. Staf.:: of llar.vana & Ors. [1977] 1 SCC 486,
C
<lpplied.
<
The criterion employed by the concerned authority in promoting t·he appellant was not arbitrary or capricious but \Vas intended to increase the effic1~ncy
in the functioning of the department. It was not based on extraneous or irrelevant considerations or sufiered fron1 any other vice.
[?96 Al
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1825
of
D
1969.
From the Judgment and Decree dated 13-5-1969 of the Patna
High Court in Civil Writ Jurisdiction Case No. 460/68.
S. C. Aganvala and R. K. Garg for the Appellant.
Sar;ov Prasad and U. P. Singh for Respondent No. 2
For respondents 1 and 3-28 Ex parte.
The Judgment of the Court was delivered by
JAsWANT SINGH, J.-This appeal by certificate granted by
the
High Court of Judicature at Patna under Article 133 (!)(a) and (b)
of the Constitution is directed against the judgment and order dated
May 13, 1969 of that Court whereby Civil Writ Petition No. 460 of
1968 fileu by respondents 3 to 28 herein was allowed, Notification
No. SS/ A-1-103/68/2676/EB dated June 24, 1968 issued by the Bihar
State Electricity Board, respondent No. 2, appointing the appellant
as ofliciating temporary Executive Engineer (Tele-Communication),
Tele-Communication Division, Patna was quashed and a writ
of
mandamus commanding respondent No. 2 to fill up the post of thci
Executive Engineer (Tele-Communication) after considering the case
of respondents 3 to 28 and specially of respcndents 3 and 4 along
with the case of the appellant or with the case of any other Assistant
Engineer whose case in the opinion of the Board may be lit to be
considered in the light of the said judgment was issued.
The circumstances giving rise to this appeal lie in a short compass.
It appears that the appellant who passed the final examination of
Bachelor of Science (Engineering) in Tele-Communication of
the
Ranchi University held in August, 1962 was appointed by the Bihar
E
F
G
H
A
B
c
()
E
F
G
H
790
SUPREME COURT REPORTS
[ 1978] 1 S.C.R.
State Elcclricity Board (hereinafter referred to as 'the Board')
as
Assistant Engineer (Telc-Communication) in September, 1963 on a
salary of l<.s. 245/- per month in the pay scale of Rs. 220-25-320EB-25-670-EB-30-750.
A few weeks after his recruitment, the appellant was sent by the Board to the headquarters of Messrs
Brown
· Boveri and Company Limited, Baden, Switzerland for six months'
specialized training in power line carrier, telc-mctering and tele-control equipment in the modern power system.
On his return from
Switzerbnd and resumption by him of his duty as Assistant Engineer
(Tele-Communication) the appellant was deputed to look after the
entire tele-communication system of the Board.
In June, 1968, the
Board felt the necessity of maintenance of efficient communication
service between the vital centres of generation, utilization and administration for ensuring reliability and continuity in
power
supply
which would facilitate quick supi>rvision and checking of the then
existing arrangements at the generating stations, receiving sub-stations
and distributing areas as also the necessity of proper supervision and
handling by trained and qualified personnel of a large number of wavechange-over communication equipments on 33 KW
Transmission
line which had been installed in the Tele-Communication Sub-Division of the Board at Patna and were maintained and aligned with the
help of special electronic instruments.
Accordingly, the Board accorded sanction to the creation of 11 temporary Tele-Communication
Division with head-quarters at Patna as also to the creation of a temporary post of Executive Engineer (Tele-Communication) in
the
replacement scale of pay of Rs.
730-35-870-40-1070-EB-45-1250
for the said Tele-Communication Divisicm with effect from June 22,
1968 to February 28, 1969.
Acting on the recommendation of its
expert selection committee to the effect that the appellant was fit to
be promoted to the rank of the Executive Engineer
Tele~Communi
cation) in view of the fact that he had a consistently good record of
service, possessed the degree in Tele-Communication Engineering, had
undergone special training in Switzerland in Tele-Communication, had
ever since his return from Switzerland been satisfactorily performing
the onerous and complex duties assigned to him and had been looking
after the entire Tele-Communication system of the Board and had
thus acquired a valuable practical experience in that field which was
necEssary to man the post of Executive Engineer (Tele-Communication) and that the Assistant Electrical Engineers of 1960 batch
were being considered for promotion as Electrical Executive Engineers, the Board issued the aforesaid notification temporarily promoting the appellant to the post of Executive Engineer (Tele-Communication).
Thereupon, respondents 3 to 28, who had been appointed as Assistant Electrical Engine~rs in September, 1960 moved the
High Court at Patna by means of a writ petition under Article 226
of the Constitution challenging the aforesaid notification
averring
inter alia that thei promotion of the appellant was mala fide, that
thou_gh they were senior to the appellant and possessed the requisite
qualification and two of them viz. Harkishore Singh and Dina Nath
Singh had studied tele-communication as one of their subjects in the
final examination of B.Sc. in Electrical Engineering. they had not
even been considered by the Board for appointment to the aforesaid
post of Executive Engineer and that they had
been superseded
'
..
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-
-
•
~ P. SINGH v. BlliAR (Jaswant Singh, !.)
791
and unreasonably discriminated against in violattion of the guarantee
of equality of opportunity enshrined in Articles 14 and 16 of
the
Constitution.
The petition was contested by the appellant as
also
the State of Bihar and the Board who contended that the appellant
was holding an extra-cadre post of Assistant Engineer (Te!ecCommunication) which was created separately from that of the other
Assistant Electrical Engineers; that respondents 3 to 28 not being
holders <lf degree in Tele-Communication (Engineering) were
not
qualified for appointment as Executive Engineer (Tele-Communication) and had no right to maintain the petition and that there was no
,question of violation of equality of opportunity
guaranteed
under
Articles 14 and 16 of the Constitution.
On a consideration cf the
rival contentions of the parties, t.he High Court while granting that
the appellant possessed the degree of B.Sc. Engineering in Tele-Communication; that the post of Executive Engineer (Tele-Communication) might be an extr~ cadre post as claimed by the Board and that
it was not for the Court but for thei Board to' decide on the basis of
the opinion of experts or selection committee as to who was fit and
suitable for that post, quashed the aforesaid notification promoting
the appel!Jnt mainly on the grounds that neither a separate, cadre of
Executive Engineer (Tele-Communuication) had been constituted nor
had any special qualification been laid down by the· Board for the
post in question and that respondents 3 to 28 who were seniors to and
had better experience and academic career than the appellant had been
unjustifiably ignored by the Board violating the protection of equal
oppcrttmity guaranteed to them under Articles 14 and 16 of
the
'Constitution. It is this judgment that is impugned in this appeal.
A
.B
c
D
We have heard learned counsel for the appellant and respondents
E
1 and 2 viz. the State of Bihar and and the Board but have had not
the advantage of hearing respondents 3 to 28 or any one on their
llehalf, as they have chosen not to appear despite personal service.
The !earned counsel appearing on behalf of the appe1lant
and
respondents 1 and 2 have vehemently urged that Tele-CommunicaF
lion is a highly specilizcd subject quite distinct from that of general
Electricity: that respondents 3 to 28 who were mere graduates of
Science in Electrical Engineering were not qualified for the> post of
Executive Engineer (Tele-Communication) and had no right
to
maintain the writ petition out of which the present appeal has arisen
and that in the facts and circumstances of the instant case, there was
no question of any breach or violation of the guarantee of equality of
G
opportunity contained in Articles 14 and 16 of th~ Constitution as
was contended by them.
There is, in cur opinion, considerable
force in these submissions.
Regarding the observation of the High Court that in the absence
of rules laying down qualifications for appointment and promotion
to the post of Executive Engineer (Tele-Communication), respondents
H
3 to 28 could not be excluded from consideration for appointment tc
"that post, we would like to say that though it cannot be gainsaid that
before initiaticn of the proposal for creation of the post of Executive
/
A
B
c
D
E
F
G
H
792
SUPREME COURT REPORTS
(1978] 1 S.C.R.
Engineer l Telc-Communic~pon), respondents I and 8 had not framed any rules prescribing qualifications for that post, it cannot be overlooked that it is not obligatory to make rules of recruitment etc.
before a service is constituted or a post is created or filled up.
As
is well known, the process of rulc"making is a protracted and complicated one involving consultation with various authorities and compliance witl1 manifold formalities.
It cannot also be disputed that
exigencies of administration at times require in1mediate creation
of
service or posts and any procrastination in that behalf cannot but prove
detrimental to the proper and ellicient functioning of public departments.
In such like situations, the authorities concerned would have.
the povver to appoint or tcrn1inatc ad1ninistrativc personnel under th..:
general power of administraticm vested in them as observed by
this
Court in B. N. Nagarajan & Ors. v. State of Mysore & Ors(') and T.
Cajee v. U. Jorma11ik Siem & Anr.(')
It follows, therefore, that in
the a bsencc of rules, qualifications for a post can validly be laid down
in the self same executive order creating the service or post and filling
it up according to those qualifications.
In the instant case. it is evident from u persual of the proposal for creation of a Tele-Communication Division at Patna. and the arorcsaid, rccon1mendation n1adc by the
Selection Committee in favour of the appellant that for ensuring reliability and coatinuity in power supply it was absolutely essential that maintenance of the sophisticated wave-change-ever communication equipments of 33 KW installed by the Board in the Tele-Communication Subsion should be entrusted to specially trained, experienced and qualified
otncers possessing specialized theoretical and practical knowledge of
Tele-Communication which is a subject quite distinct from that of general Electricity and covers according to New Encyclopaedia Britannica
(15th Edition) and Webster's Third New International Dictionary all
types of communication at a distance as by cable, radio, tclegrapl1, telephone, teletypewriter and fascimile.
Judged in this background. it is
obvious that it was only the appellant who possessed degree in B.Sc.
Engineering in Tele-Communication, was separately recruited and specially trained in tha~ line in Switzerland and had thus acquired specialized knmYlcdge therein and acquitted himself creditablv in the field
for five years. who could be said to possess the requisite qualification
and be1 considered. fit and suitable for the job in question and not an}
one of respondents 5 to 28 who were mere gradlmtes in
Electrical
Engineering, nor even' respondents 3 and 4 who had studied Tele-Communication only as one of the subjects in their final B.Sc. Engineering
Examination.
It is patent, therefore, that the High Ccurt \Vas in error
in thinking that respondents 3 to 28 possessed qualification equal to
the appellant or that they were eligible for the job.
Turning to the other ground on which the judgment under appeal
rests viz. the violation _of guarantee of equlity cnshimed in Articles 14
and JG of the Constitution. we would like to reiterate and re-emphasize
what has been oft repeated by this Court viz, that the
doctrine of
equality before law and equal protection of laws and equality of opportunity in the matter of employment and promotion enshimed in Articles
(1) (1966] 3 S.C.R. 682.
(2) [196111 S.C.R. 750. 764.
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•
. -
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R. P. SINGH v. BIIIAR (Jaswant Singh, J.)
793
14 and 16 of the Constitution which is intended to advance justice by
avoiding discrimination is attracted only when equals are treated as
unequals or where unequals are treated as equals.
(See Md. Usmwz
& Ors. v. State of Andhra Pradesh(').
The guarantee of equality does
not imply that the same rules should be made applicable to all persons
in spite o[ differences in their circumstances and conditions.
(Sec
Chiranjit Lal Chowdhuri v. The Union of India & Ors.(')
It is also
well recognised that although Articles 14 and 16 of the Constitution
forbid hostile discrimination, they do not forbid reasonable classilkation and equality of opportunity in matters ef promotion means equality
as between members of the same class of em9loyces and not equality
between the members of separate and independent classes.
(Sec All
lndia Stat;on Masters' & Assistant Station Masters' Association & Ors.
v. General Manager, Cemral Railway & Ors,(")
It must always be
remembered that though the concept of equal protection and equal
o;;portunity undoubtedly permeates the whole spectrum of an individual's employment from appointment through promotion and tennination to the payment of gratuity and pension, it has an inherent limitation arising from the very nature of the' constitutional
guarante~.
Equality is for equals, that is to say those who arc similarly circumstanced are entitled to an equal treatment but the guarantee enshrined
in Articles 14 and 16 of the Constitution can not be carried beyond
the point which is well settled by a catena of decisions o[ this Court.
The instant case, in our opinion, is completely covered by the dec<-
sicns o[ this Court in State of Jannnu & Kashmir v. Triloki Nath Klw;a
& Ors.( 4) (with which both of us had ·something to do at one stage or
A
c
the other), State of Mysore v. P. Narasing Rao,(') Ganga Ram v.
E
Cinion of India(") and the Union of India v. Dr. (Mrs.) S. B. Kohli( 7 )
Jn the State of Jammu & Kashmir v. Trilvki Nath Khosea & Ors.
(supra) where after integration of diploma holder and degree holder
Assistant Engineers in one class. it was provided by the J&K Engineering
(Gazetted)
Service
Rules,
1970 that only those Assistant
Engineers 'who
possessed
a
degree
in
Engineering
would be
F.
eligible
for
promotion
to
the
post
of
Executive Engineer
and the diploma holder Assistant Engineers who were rendered ineligible for promotion to the post of Executive Engineer filed a writ petition challenging the constitutionality of the rule and the classification
on which it was claimed to be based. on the ground that once the employees are integrated into one class, they cannot for purposes of promotion be classified again into two different classes on the basis of eduG
cational differences existing at the time of recruitment, the Constitution Bench held rejecting the contention of the diploma holder Assistant Engineers that formal education may not always produce excel·
Jenee b'1t a classification founded on variant educational qualifications
is, for purposes of promotion to the post of an' Executive Engineer. to
(!) [1971]2S.C.C.188.
(3) [1960] 2 S.C.R. 3\1, 316.
(5) [1968] 1S.C.R.407.
(6) [197013 S.C.R. 481.
(2) [19501 S.C.R. 869, 911.
(4) [197411 S.C.R. 771.
(7) A.LR. 1973. S.C. 811.
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SUPREME COURT REPORTS
[ 1978] 1 S.C.R.
say the least, not unjust on the face of it and the onus therefore cannot shift from where it originally lay.
The following passages occurring in the loading judgment of our
learned bruther Chandrachud, J. in that case are worth quoting:-
''Jn order to establish that the protection of the equal
opportunity clause has been denied to them, it is not enough
for the respondents to say that they have been treated differently from others, net evc11 enough that a differential treatment has been accorded to them in comparison with others
similarly circumstanced.
Discrimination is the essence
of
classification and docs violence to the constitutional guarantee
of equality only if it rests on an unreasonable basis.
1t was
therefore incumbent on the respondents to plead and show
that the classification of Assistant Engineers into those who
hold diplomas and those who hold degrees is unreasonable
and bears no rational nexus with its purported ohjccl. ... On
the facts of the case, classification on the basis of educational
qualifications made \vith a view to achieving ad1ninistrativc
cHieicncy cannot be said to rest on any fortuitous circu1nstance and one has always to bear in mind the facts and circumstances of thti case in order to judge the validity of a classification .... Educational qualifications have been recognized
by this Court as a safe. criterion for determining the validity
of classification.
In State of Mysore v. P. Narasing Rao
(supra) where the cadre of Tracers was reorganized into two,
one consisting of matriculate Tracers with a higher scale of
pay and the other cf non-Matriculates in the lower scale, it
was held that artic\es 14 and 16 do not exclude the laying
dowu of selective tests nor do they preclude the Government
from laying down qualifications for the post in
question.
Therefore, it was open to the Government to give preference
tc candidates having higher educational qualifications.
Jn
Ganga Ram v. Union of India (supra), it was observed that
"!he Slate which encounters diverse problems arising from a
variety of circumstances is entitled to lay down conditions
of efriciency for promotion in its different departments". Jn
the Union of India v. Dr. (Mrs.) S. B. Kohli (supra), as
refocd a classificaticn a9 between an F.R.C.S. in general surgery and an F.R.C.S. in Orthopaedics was upheld in relation
to appointment to the post of a Professor of Orthooaedics
on the ground that the classification made on the basis of
requirement of a post graduate de?ree in particular speciality
was not "without reference to the objectives sought to be
nchicve<l and there can be no question of discrimination".
The following observations made in State oj Mysore v. P. Narasing
Rao (supra) will also amply repay perusal :---:
"It is well settled that though Article 14
forbids class
legislation, it docs not forbid reasonable classification for the
purpose of legislntion.
Where any impugned rule or statutory provision is assailed on the ground that it contravenes
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R. P. SINGH '" BIHAR (Jaswant Singh, J.)
795
Article 14, its validity can be sustained if two tests are satisfied.
The first test is that the classification on which it is
founded must be based on an intelligible differentia which
distinguishes persons or things grouped together from others
left out of the group, and the second test is that the differentia
in question must have a reasonable relation to the
object
sought to be achieved by the rule or statutory provision in
queslion.
In other words. there must be some rational nexus
h:twecn the basis of classification and the object intended to
be achieved by the statute or the rule.
As we have already
stated, Articles 14 and 15 form part of the same constitutio!1nl code of guarantee~ and supplc1nent each other.
lll
other words. Art. 16 is only an instance cf the application of
tile general rule of equality laid doll'n in Art. 14 and
it·
shouid be construed as such.
Hence there is no denial of
equality of opportunity unless the person who complains of
discrimination is equally situated with the person or persons
who are alleged to have been favoured. Articles 16(1) docs
not bar a reasonable classification of employees or reasonable
tests for their selection."
In tho instant case. the qualifications required for the post
<'f
Executrvc Engineer (Tele-Communication) as demonstrably rd1ectcd
in the proposal for creation of that post and the aforesaid recommendation of the Selection Committee setting out various factors which went
in favour ol' the promotion of the appellant appear to be founded on
reasonable classification having an intelligible differentia which djstinguished the appellant from respondents 3 to 28 and the differentia
had a reasonable relation to the object sought to be achieved.
It is,
therefore, crystal clear that respondents 3 to 28 did not stand at par
with the appellant and had no legal right which they could claim to
ll:lve been denied lo them by an authority which had a legal duty to
do s0mething.
With all respect the High Court was in our judgment
therefore, not right in issuing the writ of mandamus. It \\'ould he
useful in this context to refer to the following observations made by
this Court in Mani Suhrat Jain & Ors. v. State of Harrana & Or.q')
"lt is elementary though it is to be restated that no one
can ask for a mandamus without a legal right.
There must
be a judicially enforceable right as well as a legally protected
right before one suffering a legal grievance can ask for a
1nandamus.
A ~·2r-;on c~1n be said to b.: aggrieved only \vhen
a person is denied a legal right by someone \Vho has a legal
duty to do something or to abstain from doing something.
1See Halsbury's Laws of England. 4th Ed. \'ol. 1. Paragraph
122: State of Haryana v. Subhash Chander Marwaha(')
Jasbhai
Motibhai
Desai
v.
Roshan
Kumar
Haji
Bashll' Ahmed(') and Ferris: Extra-Ordinary Legal Remedies. paragraph 198]".
(I l [ 1977] I S.C.C. 486.
(J) [l9)(,] 3 S.C.R. si.
14~95lSCl/77
(2) [l974] l. S.C.R. lfi5.
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In view of the foregoing, we are unable to hold on the m~terial
before us that the criterion employed by the concerned authority in
promoting the appellant was arbitrary or capricious or was not intended to increase the efficiency in the functioning of the department or
was based on extraneous or irrelevant considerations or suffered Imm
any other vice.
In the result, we allow the appeal, set aside the judgment of the High Court and uphold the aforesaid Notification No.
SS/AI··10316812676-EB dated June 24, 1968 issued by the
Board
promot_ing the appellant as officiating temporary Executive Engineer
(Tele-Communication).
As respondents 3 to 28 have not appeared
and contested the appeal, we make no order as to costs.
S.R.
Appeal allowed.
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