# • ·A STATE OF JAMMU & KASHMIR v. TRILOKI NA TH Kl:(OSA & ORS

- **Citation:** [1974] 1 S.C.R. 771
- **Court:** Supreme Court of India
- **Decided:** 1973-09-26
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-state-of-jammu-kashmir-v-triloki-na-th-kl-osa-ors-6028
- **Pages:** 22

## Headnote

•
·A
STATE OF JAMMU & KASHMIR
V.
TRILOKI NA TH Kl:(OSA & ORS.
September 26, 1973
[A. N. RAY, C.J., D. G. PAL~AR, Y. v. Cl!ANDRACHUD,
771
B
P. N. BHAGWATI AND V. R. "KRISHNA IYER, JJ.]
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Constitution of India, 1950, Articles 14, 16-Jam1nu and Kashmir Engineer·
ing (Gazetted) Service Recruitment Rules, 1910-Persons appointed
directly
ind by promotion integrated into common class of Assistant Engineers-If for
purpose of promotion as Executive Engineers they could be classified on the
bas!s of educational qualifications-.Classification if violatii•e of articles 14 and
16.
Under the Recruitment Rules of 1939, recruitment to the cadre of Assistant
Engineers in the Jam mu and Kashmir Engineering Service was to be made by
direct recruitment of degree holders in Civil Engineering or by transfer of
degree or Diploma holders who have served as Supervisor for a period of not
less than 5 years. The rules further provided that appointments by transfer
(that is by promotion) to the cadre of Executive Engineers could be made only
from the cadre of Assistant Engineers on the basi!l of merit, abifity and the
previous record of the candidates.
The Jammu and
Kashmir Engineering
(Gazetted) Service .Recruitment Rules, 1970, provided that recruitment to the
post of Executive Engineers and above was to be made only by promotion.
_o\nd, as regards promotion to the post of Executive Engineers, and to those
only, it was provided that only those Assistant Engineers
who possessed a
degree in Engineering would be eligible for prcmotion. Diploma holders in
Engineering, like the respondents, were thus rendered ineligible for promotion as
Executive Engineers. The respondents challenged the constitutionality of the
Rule. The classification, according to the appellants, was made ~ith a view to
achieving administrative efficiency in the Engineering Service. The High Court,
took the view that the impugned Rule was violative of articles 14 and 16 of
the Constitution.
In appeal to this Court it was contended on behalf of the· State that it is
always open to the Government to classify its employees so long as the ci.assi·
fication is reasonable and has nexus with the object thereto; that if there are
different sources of recruitment, the employees recruited from different sources
can either be allowed different conditions of Services and so c'Jntinue to belong
to different classes or the Government may integrate them into one class; that
once the ernployees are integrated into one clau they cannot for the purposes of
promotion, be classified again into two different classes on the basis of differences
existing at the time of recruitment; but, after integration into one class, the
employees can, in the matter of promotion be classified into different classes
on th•J basis of any intelligible differentia as, for example, educational qualifi.·
c~tions,_ which has a nexus with the object of the classification, namely, effi.-
c1encY'm the post of promotion. The respondents urged that the Rules of 1939
did not.t make any distinction between diploma-holders ·and degree-holders; that
the roles governing conditions of Serviee could not be changed retrospectively
to classify employees on the basis of educational qualifications so as to deny
promotion to the diploma-holders; that having regard to the fact that from
1939 to 1970 holders of diploma and degree were treated alike, the onus lay
heavily on the appellants to prove the necessity for differentiating between the
two, which onus was not discharged on the record of the cases; that there was
no nexus between the classification and the objects to be achieved thereby and
in fact the classification defeated that object; that if chances of promotion were
denied to a few within a class of equals, tliere was an inherc;:nt vice attaching
to the classification and no question of reasonableness of the
ne\11· yardstick
could possibly arise; that the unreasonableness of the classification was patent
from the fact that a deg

## Text

_Characters 0–39,859 of 73,630. This is a partial read: ask again with offset=39859 for what follows._

•
·A
STATE OF JAMMU & KASHMIR
V.
TRILOKI NA TH Kl:(OSA & ORS.
September 26, 1973
[A. N. RAY, C.J., D. G. PAL~AR, Y. v. Cl!ANDRACHUD,
771
B
P. N. BHAGWATI AND V. R. "KRISHNA IYER, JJ.]
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D
E
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Constitution of India, 1950, Articles 14, 16-Jam1nu and Kashmir Engineer·
ing (Gazetted) Service Recruitment Rules, 1910-Persons appointed
directly
ind by promotion integrated into common class of Assistant Engineers-If for
purpose of promotion as Executive Engineers they could be classified on the
bas!s of educational qualifications-.Classification if violatii•e of articles 14 and
16.
Under the Recruitment Rules of 1939, recruitment to the cadre of Assistant
Engineers in the Jam mu and Kashmir Engineering Service was to be made by
direct recruitment of degree holders in Civil Engineering or by transfer of
degree or Diploma holders who have served as Supervisor for a period of not
less than 5 years. The rules further provided that appointments by transfer
(that is by promotion) to the cadre of Executive Engineers could be made only
from the cadre of Assistant Engineers on the basi!l of merit, abifity and the
previous record of the candidates.
The Jammu and
Kashmir Engineering
(Gazetted) Service .Recruitment Rules, 1970, provided that recruitment to the
post of Executive Engineers and above was to be made only by promotion.
_o\nd, as regards promotion to the post of Executive Engineers, and to those
only, it was provided that only those Assistant Engineers
who possessed a
degree in Engineering would be eligible for prcmotion. Diploma holders in
Engineering, like the respondents, were thus rendered ineligible for promotion as
Executive Engineers. The respondents challenged the constitutionality of the
Rule. The classification, according to the appellants, was made ~ith a view to
achieving administrative efficiency in the Engineering Service. The High Court,
took the view that the impugned Rule was violative of articles 14 and 16 of
the Constitution.
In appeal to this Court it was contended on behalf of the· State that it is
always open to the Government to classify its employees so long as the ci.assi·
fication is reasonable and has nexus with the object thereto; that if there are
different sources of recruitment, the employees recruited from different sources
can either be allowed different conditions of Services and so c'Jntinue to belong
to different classes or the Government may integrate them into one class; that
once the ernployees are integrated into one clau they cannot for the purposes of
promotion, be classified again into two different classes on the basis of differences
existing at the time of recruitment; but, after integration into one class, the
employees can, in the matter of promotion be classified into different classes
on th•J basis of any intelligible differentia as, for example, educational qualifi.·
c~tions,_ which has a nexus with the object of the classification, namely, effi.-
c1encY'm the post of promotion. The respondents urged that the Rules of 1939
did not.t make any distinction between diploma-holders ·and degree-holders; that
the roles governing conditions of Serviee could not be changed retrospectively
to classify employees on the basis of educational qualifications so as to deny
promotion to the diploma-holders; that having regard to the fact that from
1939 to 1970 holders of diploma and degree were treated alike, the onus lay
heavily on the appellants to prove the necessity for differentiating between the
two, which onus was not discharged on the record of the cases; that there was
no nexus between the classification and the objects to be achieved thereby and
in fact the classification defeated that object; that if chances of promotion were
denied to a few within a class of equals, tliere was an inherc;:nt vice attaching
to the classification and no question of reasonableness of the
ne\11· yardstick
could possibly arise; that the unreasonableness of the classification was patent
from the fact that a degree qualification was considered as a pre-condition for
the promotion to the posts of Executive Engineers but not to higher posts; and
'i
712
>UPREME COURT REPORTS
[ 1974] 1 S.C.R.
that if persons recruited from different sources were integrated into one c:ass,
they could .Jlot thereafter be classified so as to permit in favour of son1e of
them a preferential treatment as against ethers.
HELD : Though persons appointed directly and by promotion were in~eg·
rated 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.
The rule providing that graduates shall be eligible
for such promotion to the exclusion of diploma holders does not vi0late
articles 14 and 16 of the Constitution.
(i) It is wrong to characterise the operation of a Service rule as retros;ec·
tive for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes; undoubtedly operates on those
who entered service before the framing of the rule but it operates in future
in the sense that it governs the future right of promotion of those who are
already in service. It is well settled that a Government servant acquires a
'status' on appointment to his office and as a result his rights and obligaticns
are liable to be determined under statutory or Constitutional authority ,,·hich
for its exercise requires no reciprocal consent. [779 E]
(ii) It is no part of the appellant's burden to justify the classification or
to establish its constitutionality.
A classification founded on varialtt, educational qualifications is, for purposes of promotion to the post of a Executive
Engineer, to say the least, not unjust on the face of it and the onus thereforecannot shift from where it originally lay. [780 G]
Shri Ram Krislian Dalmia v. Justice S. R. Tendolkar & Ors. [1959] S.C.R.
279, 297; State of Uttar Pradesh v. Kartar Singh
[1964] 6 S.C.R.
679,
687 and G. D. Kerkar v. Chief Controller of Imports and Exports
[1967]
2 S.C.R. 29, 34, referred to.
(iii) Classification is primarily for the legislature or
for
the
statut.:>ry
authority charged with the duty of framing the terms and conditions of ser·
vice; and if, looked at from the standpoint of the authority making it,
th~
classification is found to rest on a reasonable basis, it has to be upheld. Discrimination is the essence of classiJlcation and does violence to the constitutional guarantee cf equality only if it rests on an u~reasonable basis. [781 C]
(iv) There is no justification for the respondent's plea that the record does
not disclose the necessity "for the impugned rule of 1970.
The records show
jhat till about 1968 there was a dearth of Engineering graduates. In 1962 the
tatio between graduates and diploma holders was 1 : 2 and in 1968 it became
alhlost 2 : 1 and in 1970 the position remained more or less unchanged. The
appellants were entitled ;to take into account this spurt in the availability of
persons with higher educati.onal qualifications for manning the
next
higher
post of promotion.
Further, it cannot be overlooked that even under the re·
cruitment rules of 1939 , graduates in Civil Engineering were alone eligible for
direct recruitment as Assistant Engineers in the· Kashmir Engineering Service.
[783 BJ
(v) The argument that if the llature of duties and responsibilities of the
post of Executive, Engineer has undergone· no significant change, there
\Yould
be no justification for restricting the field· of choice to graduates assumes in
the Court a right of scrutiny somewhat wider
1 than is
generally recognised.
·-The concept of equality has an inherent limitation arising from
the
very
nature of the constitutional guarantee. Equality is for equals. That is to say,
those who are similarly circumstanced are entitled to an equal treatment.
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Classification·, however, is fraught with the danger that it may
produce
artificial inequalities and therefore, the right to
classify is
hedged in
with
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salient restraints; or else, the guarantee of equality will be submerged in class
legislation masquerading as laws meant to govern well-marked classes characterized by direren.t and distinct attainments.
Oassification, therefore, must be
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J. & K. STATE v. T. N.
KHOSA (Chandrachud, J.)
77 3
truly founded on substantial differences which distinguish persons groupeJ together fron1 those left out of the group and such differential attributes n1ust
bear a just and rational relation to the object sought to be achieved.
Judicial scrutiny can therefore extend only to the ccinsideration whether the
classification rests on a reasonable basis and whether it bears nexus with the
object in vie\v, It cannot extend to embaring upon a nice or mathematical
evaluation of the basis of classification, for, were such an inquiry permissible,
it would be open to the coufts to substitute their own judgment for that of the
legislature or the rule-making authority on the need to classify or the desir·
ability of achieving o particular object. [784 A-CJ
(vi) So judged, the classification of Assistant Engineers into degree holders
and dipl0ma holders cannot be said to rest on any
unreal or unreasonable
basis. If the classification was made with a view to achieving administrative
effidency in the Engineering Service, the classification is clearly cor~relatedJ to
it, for, higher educational qualifications are at least presumptive evidence of a
higher n1ental equipment.
On the facts of the case the classification cannot
b~ said to rest on any fortuitous circumstances.
educational qualifications
have been recognised by this Court as a safe criteria for
determining the
validity of classification. [784 D; 785 E]
State of Mysore & Anr. v. P. Narasing Rao, [1968] 1 S.C.R. 407. and
The Union of India¥. Dr. (Mrs.) S. B. Klzoli, A.LR. 1973
S.C.
811,
313.
(vii) The seniority list of January l, 1971 shows how unreal the argun1ent
iS that the qualification rule not having been extended to the higher echelons
of service, it can bear no nexus with the attainment of administrative efficiency
in a con1paiatively lower
hierarchy of Assistant Engineers.
Dealing \Vith
practical exigencies, a rule making authority may be guided by the realities of
life, just as the legislature, while making a classification, "is free to recognize
degrees of harm and it may confine its restrh .. i:ions to those classes of cases
where the need is deemed to be the clearest." If the law presumably hits the
evil where it is most felt, it is not to b: overthrown because there are other
instances to which it might have b:en applied, [785 C, G]
Bain Peanut Co. v. Pinson 15 L. ed. 482, 489, Miller v. Wilson, 59 L.ed.
632 and Keekee Gonsol, Coke Co. v. Taylor 58 L.ed. 1288, 1289.
(viii) This Cou.t's decision in Roshan Lal's case is no authority for the
proposition that if direct recruits and promotees are integrated into one class,
they cannot b.e classified for purposes of promotion on a basis other than the
one that they were drawn from different sources.
~'\11 that Roshan Lal's case
lays do\\'n is that direct recruits and promotees lose their birthmarks on fusion
into a common stream of service and they cannot thereafter be treated differently by reference to the consideration that they were recruited from different
sources.
Their genetic blemishes disappear once they are integrated into
a
common class and cannot be revived so as to make equals unequals once
again.
In the instant case classification rests fairly and squarely on the consideration of educational qualifications :
Graduates alone shall go into higher
post. no matter whether they were appointed as Assistant Engineers directly or
by promotion. The discrimination. therefore, is not in relation to the source
of recruitment as in Roshan Lal's case. [789 C]
Roshan Lal Tando11 v. Union of India, [1968) I S.C.R.
185, Mervyn
Co11ti11do & Ors. v. Coilector of Cus~oms, Bo1nbay & Ors., [1966] 3 S.C.R.
600 and S. M. Pandit v. State of Guiarat, A.LR.
1972
S.C.
252,
explained and held inapplicable.
[The Court ~mphasized ·t~e necessity of adopting a pragmatic approach in
ordc~ to harmonize the r~cru1tmen~ of publi~ service with the aspirations of
public servants and cautioned against evolving, through imperceptible e:-tten-
774
SUPREME COURT REPORTS
[ 197.4 l 1 s.c.R.
sior.s, a theory of classification which may subvert.
per.haps
submerge,
the
previous guarnntee of equality.l [790 G]
Per Bhagwati and Krishna Iyer, JJ:
(concurring): {i) The
proposition
that all men are equal has working limitations, since absolute equality leads to
procrustean cruelty.
A_n· imaginative and constructive modus, vivendi between
commonness and excellence must be forged to make the equality clauses viable.
The social meaning of articles 14 to 16 is neither dull uniformity nor specious
'talentism'. It is a process of producing quality out of larger areas of equality
extending better facilities to the latent capabilities of the lowly. [791 B-CJ
{ii) In the present case, in the past decades, few Engineering graduates in
the State and few Engineering Colleges in the country compelled Government
to recruit diploma holders and protnote them to higher offices.
But circ'umstances have changed, needs have increased, availabilities have expanded and
inequalities at the ediicational level -have been
partly
eliminated.
And
so
personnel policy, \Vith an eye on efficiency have changed, [791 G-H]
(iii) Ho1,vever, while striking a balance between the long hunger for equal
chance of the lowlier and the disturbing concern of the community for
higher
standards of performance. the State should not jettison the germinal principle
of equalit)' altogether. The dilemma of democracy is as to how to avoid validating the abolition of the difference between the good and the bad in the
name of equality and putting to sleep the constitutional command for expanding the areas of equal treatment for the weaker ones with the dope of 'special
qualifications' measured by expensive and exotie degrees.
These are
p~rhfipS
meta-judicial matters left to the other branches of Government, but the Court
n1ust bold the Executive with,in the leading strings of egalitarian constitutionalism and correct, by judicial review, episodes of subtle and shady classification
grossly violative of equal justice. That is the heart of the matter. That is the
note that rings through the first three fundamental rights the people -have given
to themselves. [792 BJ
The judgment of A. N. RAY, C. J., D. G.
PALEKAR and Y. V.
CHANDRACHUD J.J. was delivered by Chandrachud, J. KRISHNA IYER.
J. delivered a separate concerning Opinion on behalf of Bhagwati, J.
and himself.
CHANDRACHUD, J. If persons drawn from different sources
are
integrated into one class, can they be classified for purposes of pro·
motion on the basis of their educatioJa] qualifications? That is the
issue for consideration before us.
R~spondents, who are Diploma Holders in Engineering, filed in
the High Court of J ammu and Kashmir a petition under article 226
of the Constitution to challenge the validity of certain Service Rules
framed ~Y '.he Governm~n.t of Jammu and Kashmir. A Learned single
Judge d1sm1ssed the petrtron but in appeal a Division Bench of the
Hi~h Court took the view that the impugned rules were violative of
~rtrcles 14 and 16 of the Constitution. The correctness of that view
is cl!a!Jenged by the State of Jammu and Kashmir in this appeal by
sp;;~ral leave.
Respondents, who are serving in different branches of the E:ioineering Servi~e of the appellants, were appointed as Assistant Enginee~s
between 1960 and 1966 by promotion from the Subordinate Engineering
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.J. & K. STATE V. T. )I. J::HosA (ChalldrocJiud,•{,)
775'
.
. .
.
Service. Their cODditioo.s of ~
were then governed by the' rules .
pnblished under.Order No. 1328-C of 1939. Tho&e ~
to the extent
material, ~ead· thus :
"The following ~es prescribing the procedure relat~
ing to recruitment to the gu.etted services are sanctioned :-
. •
.
. . . .
'
.
,(l) Special' qualification.r~Under rule
18 of ' the
Kashmir Civil Serv~ Rules (General), . the
following
. special qualifications are prsecribed in the sase of candidates
. for dir:ct recruitment or recruitment by transfer, as the case
may be, to the services mentioned below :-. .
.
...
..
. . .
KASHMlll. ENGINEERING SERVICE
Catt1ory 2 of Class II.
(Assistant Engineer).
Class ID (Ground Engineer>: .
Direct
By transfer
Direct
Dea= in Civil Engineering
of an:r rcCOl'!iscd
University;
(i) Del!'" or Diploma
in
Civil Enginecring of any
recogni~
University
or Upper
Subordinates
. Diploma or any rccognls- '
·ed. College of Engineer-
- ing.and
. .
'
(ii") Service as a
Supervisor
for a period or not less
th.in S · years on dot:y;
Certificate of Ground En·
. · gi!\eering prescribed
by
·
the Government of India.
KASHMIR ELECI1UCAL SERVICE
Cattaor:r 2 of Class II.
.
(Assistant Electrical Engineer).
Direct .
By transfer
(i) Degree
in
Engineering
recognised
and
Electrical
of . any
University,
(ii) Practical training
in
an
Electrical
Power
Station.
·
(i) Degree or Diploma in
·
Electrical
Engineering
of any recognised Uni~
versity and
\ \;
(ii) Practical Cxperienc:
in
an Electric
Power Station.n
/. ·
The rules further provided that' appointments by transfer (that
is, by promotion). to the cadre of Divisional Engineers (now known as·
Executive Engineers) could be made only from the cadre i of Assistant Engineers. Promotions to the cadre of Assistant Engiri.eers could,
. in. turn, be made only from the cadre of Supervisors in the Subordinate .
'
776
· SUPREME COUllT REPORTS
U.97 4J 1 s.c.R..
Service. Recruitment by transfer was to be made "on the basis of
merit, ability and the previous record of the C!IJldidates, seniority being
considered only in case of equality of merit, ability and excellence of
record". The scale of pay admissible to the Assistant Engineers was
Rs. 300-20-500.
In 1962, the appllants undertook .a general revision of pay sc:i.lc~
and framed "Jammu and Kashmir Civil Services
(.Revised Pay)
Rules", which were gazetted on August 6, 1962. Ruie 12 divided the ·
Assistant fulgineers into two categories, datewise. Th6se
appoin!P.d
prior to August 1, 1960 were plac¢ in Grade I 'l\'_hile t:iose appointed
subsequently were plac~d in Grade JI, regardless cf -whether :ippointments to the posts of Assistant Engineers were made d:rectly or by
promotion and whether the incumbent5 held a deg::ee or a diplo:na.
'Those in Grade I were put in the pay scale of Rs. 300-700' while t!iose
in Grade II were put in the sctle. of Rs. 250-600. Officers in Grade ll
were entitled to go into Grade I after completing two years' service,
subject to the availability of va.:ancies.
A further revision of pay scales was effected under the "fammu
and Kashmir Civil Services (Revised Pay) Rules, 1968" which were
_gazetted on February 27, 1968. 'Jnder Rule 10 (IIB) (il, Assistant
Engineers. were granted a new pay scale of Rs· 300-30-S40-EB-35610-QB-S5-750, but it was provided that the "QB at Rs. 610/- will
not be crossed by Assist~nt Engineers with Di!'loma Course". This ru!e
was challenged. by the responrients ;n so far as it c'enied to them an
<>pportunity to cross tl1e qur.lifkation bar.
.Then came the "Jammu ai;d Kashmi::
Engineering
(Gazetted)
Service Recruitment Rules, 1970", gazetted on
October 12, 1970.
These rules pruvic.le for appointments to the gazetted posts in various
branches of the Engineering Service of the appellants and rnpersede
the old rules on the subject. By rule 3 (f) 'promotion' is defined to
mean promoti0n from one class, catepry or grade to another class,
category or grade on the basis of merit an\1 efficiency, seniority being
considered only when merit was equal. Under the Schedule annexed
to these Rules, recruitment to the cadre of Executive Engineers and
above was to be made only by promotion. But a5 regards promotion
to th~ po;ts of Executive E_ngi'leers, and to those only, it was provided
that only those Assistant Engineers would be eligible for promotion
who possessed a bachelor's· degree in engjlleering or held the qualification of AM·I.E., Section A & B and who had put in at least .. i
years service in the J. K. Engineering, (Gazetted) Service. This is the
second of the two Rules impugned in this ,appeal.
The case of the respondents as disclo_sed in their petition was that
under the rules of 1939, Assistant ·Engi11.eers ·were ·entitled to· be
promoted to tlie higher cadre on the ba~is O{ their merit and record
and no distinction was made between degree-holders and diplomal10lders for the purposes of snch p:omotiOI'. The discri_lllination made
by the impugned rules between degree-holders and diploma-holders
was arbitrary and capricious because rcademic or teclmical qualificaA
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J. & K. STATE v. T. N. KHOSA (Chandrachud, /.)
777
lions could be germaDe only at the time of recruitment. For purplses
of promotion, efficiency and experience alone must count. Respondents
further oontended that once the Government appointed candidates with
different academic or technical qualifications to the same cadr~, having
the same pay scale and similar duties, such candidates would form,
one class and they cannot be further classified for purposes of ptpmotion on the basis of their educational qualifications. The impugned
rules, according to the respondents, brought about a reduction in rank,
deprived them of equal opportunity in the matter of promotion and
were violative of articles 14 and 16 of the onstitution of India. Finally,
the respondents contended by their petition that it was not competent
to the Government to change the service conditions unilaterally to the
disadvantage of its employees so as to deprive them of their vested right
of promotion by giving retrospective effect to the rules.
The appellants, by their counter affidavit, traversed these averments
thus : It was within the competence of the Government to grant a
higher pay scale to persons with higher educational qualifications.
Under the Rules of 1968 a higher slab of pay was sanctioned for Assistant Engineers with higher educational qualifications and the qualification Bar was imposed so as to exclude diploma,holders, with a
view to ensuring administrative efficiency in the Engineering service.
Under the Rules of 1970, the Governor had laid down the method
of recruitment arid had prescribed qualifications for
appointtme,it
to various categories of posts in the engineering department keeping
in view the nature of duties and responsibilities attached to those
posts. Classification, for purposes of promotion, on the basis of educational qualifications has an intelligible differentia and was therefore
not violative of the constitutional provisions of equality, Lastly, the
appellants disputed that application of the Rules to existing employees
made the Rules "retrospective" in any sense,
The learned single Judge who heard the petition rejected tbe respondents' contentions but that judgment was reversed in appeal by
a Division Bench of the High Court. Briefly, the Division Bench held
that though it was open to the Government to make a
reasonable
classification of its employees, where the employees were grouped
together and integrated into one unit without reference to their qualifications, they formed a single class in spite of initial disparity in
behalf of their educational qualifications an!! no discrimination could
thereafter be made between them on the basis of such qualifications;
that the discrimination made under the Rules of 1968 between diploma-holders and degree-holders was unconstitutional and that having
.Prescribed diploma or a degree in engineering with practical experience as a minimum qualification for entry into service, it was not
open to the Government to prescribe higher educational qualifications
for promotion from the cadre of Assistant Engineers to that of Executive Engineers. The main judgment was delivered by Mufti Bahauddin J: who confined his view to the vice attaching to the rules by reason
of their reprospectivity. The learned Chief Justice, by a concurring
178
SUPREME COURT REPORTS
[ 1974] 1 s.c.R.
judgment, struck down th. e rules for all time. They were, according to
him, bad in so far as they applied to existing employees and would be
bad if applied to those who may join the cadre in future.
A
The learned Attorney General, who appears on behalf of the
appellants,. c<;>ntends that it is always open to the
Government to
classify .its employees so long as the classification is reasonable and
has nexus with the object thereof; that a classification cannot be held
B
to infringe the equality clause unless it is actually and plapably arbitrary; that if there are different sources of recruitment, the employees
recruited from different sources can either, be allowed different con&
tions of service and so continue to belong to different classes or -Oic
Government may integrate them into one class; 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 differences
C
existing at the time of recruitment; but, after integration into one class,
the employees can, in the matter of promotion, be classified into different classes on the basis of any intelligible differentia as, for example,
educational qualifications, which has a nexus with the object of classification, namely efficiency in the post of promotion.
Mr. Setalvad who led for the respondents contended that neither
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at the time of appointment to the post of Assistant Engineers nor for
the purposes of promotion to the post of Divisional Engineers (now
called· 'Executive Engineers'), was any distinction made by the rules
of 1939 between diploma holders
and degree-holders; that rules
governing conditions of Service oould not be changed retrospectively
to classify employees on the basis of educational qualifications so as
to deny promotion ~D the diploma-holders; that there was in the instant
E
case no nexus between the classification and the object sought to be
achieved thereby and in fact the classification defeated that object;
that having regard to the fact that from 1939 to 1970 holders of
Diplomas and Degrees were treated alike, the onus lay heavily on the
appellants to prove the necessity for differentiating between the two,
which onus was not discharged on the record of the case; and that,
if the object of the classification was the attainn1ent of efficiency, the
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Government c·ould have achieved that object, and perhaps in a better
measure, by making talent, experience and efficiency as
criteria for
determining promotional opportunities.
Mr. Gupte, appearing for Respondents 18 to 29, tobk the stand
that once there is a class of equals no discrimination can be made
among them on any ground whatsoever. Therefore, if chances of proG
motion are denied to a few within a class of equals, there is an inherent
vice attaching to the classification and no question of the reasonableness of the new yardstick can possibly arise. In the alternative, Mr.
Gupte 0011tended, possessfon of a degree qualification was not a
r.easonable basis for segregating degree-holders and diploma-holders
into water tight compartments. The impugned rule of 1970 was made in
the awareness that only some Assistant Engineers were graduates and
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the facts of the case disclosed no reasonable basis for differentiation
between them and the diploma-holders in regard to promotion as
'
Executive Engineers. Finally, the learned counsel contended that the
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KHOSA (Chandrachud, J.)
779
unreasonableness of the clauificatioo was patent from the fact that a
degree qualification was prescribed as a pre-condition for promotion
to the post of Exetutive Engineers but not to higher posts. There was
neither rhyme nor reason in a rule which permitted a Diploma-holder
to occupy the post of a Superintending _Engineer or the highest post
of a Chief Engineer but barred him from being considered for a lower
post in the cadre of Executive Engineers.
Mr. Garg, who appears foc one of the respondents, laid particular
stress on the question of onus. He contended that the heavy onus,
which lay on the appellants to justify the classification
remained
wholly undischarged in the context, especially, of the background that
between 1939 and 1970 holders of Degrees and Diplomas were
treated alike in the matter of promotion from the post of an Assistant
Engi11eer to that of an Executive Engineer. A system which had stood
the test of time, could not, reasonably, be proclaimed unworkable or
inefficacious unless the entire context and requirements of the system
had undergone some sig!lificant change. Of that, says the counsel, there
is just no evidence.
·
Most of the arguments advanced for the respondents have been
considered and rejected by this Court in some case or the other but
before coming to that, a few points may be kept out of way_
An argument which found favour with Mufti Bahauddin J., one
of the learned Judges of the Letters Patent Bench of the High Court,
and which was repeated before us is that the "retrospective" application of the impugned rules is violative of articler 14 and 16 of the ·
Constitution. It is difficult to appreciate this argument and impossible
to accept it. It is wrong to characterise the operation of a service rule
as retrospective for the reason that it applies to1existing employees. A
rule which classifies such employees for promotional purposes,
undoubtedly operates on those who entered service before the framing of
the rule but it operates in futuro, in the sense that it governs the
future right of promotion of those who are already in service. The
impugned rules do not recall a promotion already made or reduce a
pay-scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a
consideration suffers from a discriminatory vice is
another matter
which we will presently consider but surely, the rule cannot first be
assumed t<;1 be retrospective and then be strus:k down for the reason
that it violates the guarantee of equal opportunity by extending its
arms over the past. If rules governing conditions of service cannot ever .
operate to the prejudice of those who are already in service, the age
of superannuation should have femainetl immutable and schemes of
compulsory retirement in public
1~est ought to have foundered on
the rock of retroactivity. But suchl I& not the implication of service .
rules nor is it their true description to say that because they affec!f
existing emplo~ they are retrospective. It is well-settled that though
employment under the Govcnunent like 1bat 1lllder any other master
may have a ci>ntractual origin, the Gcwerameat tervant acquires a
'status' OD appoilltmellt to bis. ol!ice· As . a result, his rights and obliga-
780
SUPREME COURT REPORTS
[ 1974] 1 s.c.R.
tions are liable to be determined under statutory or constitutional
authcirity which for, its exercise, requires no' reciprocal consent. The
Government can alter the terms and conditions of its employees un·
ilaterally and though in modern times consensus in matters relating
to public services is often attempted to be achieved, consent is not a .. _
pre-condition of the validity of rules of service, the contractual origin
of the service notwithstanding.
The argument on the question of onus is largely founded on the
context of facts obtaining in the case. It is urged that for purposes of
promotion to higher posts diploma-holders were treated on par with
degree-holders from 1939 to 1970 and therefore, the onus must be on
the appellants to prove facts and circumstances which necessitated a
radical departure from the. old and established order. If diploma·
holders could competently fill higher posts for over three decades,
reasons leading to the nde which renaers them wholly ineligible even
from being oonsidered for promotion to the post of Executive Engineer
ought to be established by the appellants and. it is urged, no evidence
is disclosed in support of such reasons.
This submission is erroneous in its formulation of a legal proposition governing onus of proof and it is unjustified in the charge that
the record discloses no evidence to show the necessity of the new
rule. There is always a presumption in favour of the constitutionality
of an enactment and the burden is upon him who attacks it to show
that there has been a clear transgression of the constitutional princi·
pies.('') A rule cannot be struck down as cjiscriminatory on any a priori
reasoning. "That where a party seeks to impeach the validity of a rule
made by a competent authority on the ground that the rules offend
Art. 14 the burden is on him to plead and prove the infirmity is too
well established to need elaboration."'· The burden thus is on the
respondents t<J set out facts necessary to sustain the plea of discrimi·
nation and to adduce "cogent and convincing evidence" to prove those
facts for "there is a presumption that every factor which is relevant
or material has been taken into account in formulating the classifica·
tion"(2 ). In G. D.
Kelkar v. Chief Controller of Imports and
Exports( 3 ). Subba Rao C.J. speaking for the Court has cited three
other decisions of the Court in support of the proposition that "unless
the classification is unjust on the face of it, the onus lies upon the party
attacking the classification to show by pleading the necessary material
before the court that the said classification is unreasonable and violative of Art. 16 of the Constitution."
Thus, it is no part of the appellants' hurden to justify the classification or to establish its constitutionality, Formal education may not
always produce excellence but a classification founded on variant edu·
cational qualifications is, for purp<ises of promotion to the post of an
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(l) Shri Ram Krishan Dalmia V. Justice
S, R.
Tendolkar
&
Ors.
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[1959] S. C. R, 279. 297 (b).
(Z) State of Uttar Pradesh V. Kartar Singh [1964] (6) S. C.R. 679, 687.
(3) [1967] (2) S. C. R. 29, 34.
J. & K. STATE\". T. N .•
KHOSA (Chandrachud, !.)
781
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Executive Engineer, to say the least, not unjust on the fact of it' and
the onus therefore cannot shift from where it originally lay.
RCSJIOO!lcμts have assailed the classification in the clearest terms
but the1r challenge is purely doctrinaire. 'Academic or technical quali·
fications ~
be germane only at the lime of initial recruitment; for
purpcl6el ol ~on, efficiency and experience alone must count' -
thill is the content of their challenge. The challen~, at best, refiects the
8 • 1tepOlldents' opinion on promotional opportunities in public services
and one may assume that if the roles were reversed, respondents would
be interested in implementing their point of View. But we cannot sit
in appeal over the legislative judgmeJ!t with a view to finding out
Whether on a comparative evaluation of rival theories touching
the
question of promotion, the theory advocated by the respondents is not
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to be preferred. Classificatioa is primarily for the legislature or for the
statutory authority charged with the duty of framing the terms and
oooditi9.lls of service; and if, looked at from the standJ?6int of the
authority making it, the classification is found to rest on a reasonable
baiis, it has to be upheld.
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Our reason for saying this is to emphasize that the respondents
ought .to have furnished particulars as to why, according to them, the
c:faSslftea\ion between diploma-holders
and degree-holders
is
not
based on a rational consideration having nexus with the object sought
to b6 achieved. . In order to establish that the protection of the equal
opportunity clause has been denied to them, it is not enough for the
:re&pondents to say that they have been treated differently from others,
not even enough that a differential treatment has been accorded to
them in comparison with others similarly circumstanced.
Discrimination is the essence of classification and does violence to the constitutic-nal r,uarantee of equality only if it rests on an unreasonable basis.
It 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 pnrported object.
Rather than do this, the respondents
contented themselves by propounding an abstract theory that educational qualifications are germane at the stage. of initial recruitment
only. Omission to furnish the necessary particulars was construed by
tflis Court in two cases as indicating th.at the plea of unlawful discrimination had no basis (1). Such an infirmity in leadings led this Court in
Stat~.of Madhya Pradesh v. Bhopal Sugar Industries Ltd. (2) to remand
tho matter to the High Court in order to enable the petitioner therein
to amend its petition.
Mr. Garg asked for a remand so that the respondents could have
an opportunity to plead the necessary facts but we declined to do so
as we did not propose to allow the appeal on the narrow ground that
the respondents' plea of discrimination was inadequate.
Nor indeed
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(1) Katra Educational Society V. State of Uttar Pradesh & Ors. 1966, (3) S. C.R.
328, 336 and 337~ Probhudas ,Morar.iee Rajkotia & Ors. V. Union of India &
Ors., A. I. R. 1966 S. C. 1044, 1047.
(2) [1964] 6. S. C. R. 846.
782
· [ 1974 J l S.C.R.
did the .learned Attorney Gen~ral pre;s for ~ d~cision 011 any. such . A
·ground. We have heard the learned counsel fully on the menu of
the matter, especially as the question of onus was not presented before
the High Court in.the form in which it was presented before us •. We
will now advert to the merits of the other contentions.
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The Proviso to Rule lO(IIB) (1) of the 1968 Rules under which.
Diploma-holders were debarred from crossing· the Qualification Bar .. 1 ·
placed ,at Rs .. 610 need not detai;t us becluse the
le~ed Atto~ei
General states that the Bar has smce been removed with retrospecttvo · ·
effect: The 1968 scale of pay will therefore apply equally to . tha ·
degree-holders and diploma-holders in the cadre of Assistant
Engi~
neers, with effect from the date on which the 1968 Rules came · intO
force. ResP<>ndents, accordingly, will be eligible to reach the ceiling
of the scale regardless of the fact that the:,: hold a diploma arid not a
degree in Engineering.
·
·The main question for decision arises out of the challenge to the ·
Rules of 1970 under which diploma-holders in the cadre of Assistant
Engineers are not entitled even to be. considered for promotion to the
next higher cadre of Executive Engineers. Under the Schedule to
· those Rules, recruitment to the cadre of executive engineers can be
made only by promotion from amongst Assistant Engineers. To thaf
is added the impugned rider that only those Assistant Engineers will be .
eligible for promotion who possess a bachelor's Degree in Engineering
or who hold the qualification of AM.LE. (Section A and B) and who
have put in at least seven years' service.
Diploma-holders in . Engineering, like the responderts, are thus rendered ineligible for promotion as Exe~utive Engineers.
We have observed earlier· while dealing with the question of onus
· that there was no justification for the respondents' plea thafthe record
does not disclose the necessity for the im:pugned rule · of · 1970.· We
will draw attention to the relevant matenal, which is always admissi-.
ble to show the reasons and the justification for the classification.