# (~ ' .F STATE OF GUJARAT v. C. G. DESAI AND OTHERS

- **Citation:** [1974] 2 S.C.R. 255
- **Court:** Supreme Court of India
- **Decided:** 1974
- **Case number:** Civil Appeal No. 2170 of 1970
- **Bench:** V. R. Krishna !Yer, Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/f-state-of-gujarat-v-c-g-desai-and-others-6135
- **Pages:** 10

## Headnote

255
Engineering Service....:_Bon1bay Engineering Service .Rutes, 1960-Rule 1(ii)-
Direct rf'cruits de1na11ded their pre-selection service counted for the purpose of
promoriori-1/ perniissible-Whether Art. 16 of the Constitution violated.
Respondent No. 1 was officiating as Deputy Engineer from ~·fay 16, 1955 to
December 3, 1959 in the P.W.D. of the then State of Bombay. Thereafter, he
was selected by competitive examination and appointed to a post in .B.S.F.
ClasS-11 Service.
Under the Engineering Service Rules, 1960, a direct recruit is
required to undergo training for one year and thereafter to work on probation for
another year as in-chariz:e of a sub-division. Since respondtnt N0. 1 had already
worked as officiating Deputy Engineer, the initial period of one year's training
was dispensed with and he was directly plac..ed in-charge of a sub-diVision.. After
completion of 2 years, he was confirmed as Deputy Engineer in Class-II ftom
December 3, 196 I.
·
ln 1une 1961, the Committee aPpointed to prepare a seleci-list of Deputy
Engineers for promotion as officiating Executive Engineers, did . not consider
responde_nt_No. l for_promotic;~ because he had .. not put in 7 years (r~duced to ,
6· years 1n 1961) service requls1te under rule 7(11) for such promouon. The.
Government's stand was that-the service rendered by the direct recruits prior to
their appointment t0 Class-II could. not be. taken into account in computing their
eligibility service of 7 years. The case of respondent no. 1 was that μ~der the
Rules, his pre-selection service (from 16-5-1955 to 2-12-1959), must' be' t['lcked
on to his post-selection service for cakulating· the requisite period of his eligibi~
lity service.
' ·
ln the case or' r.eSPonde"rits Nos. 2 and: 3 also'. the Governrne11t 1.lid ncit count
the period of their pre·selection service for the purpose of their eligibility· services
and hence the dispute.
.
_'_,_,,;. ·'.·. -:·: · 1 :-~
.·:·,
•
,.-
The High Court :.found that the differentiation·· made Qy the 1 dovernm~nt in
the application of the rules,· had no reasonable nexus \Vith the object" of promotion and the action of the Government was discriminat0ry and so violative :if
Art. 16 of the· ConStitution.
On appeal, the question for
consideration
was
whether the ·action of the State Government in treating 'differently' the promotees and direct recruits in Class-II for the purpose of computing the' penod of
their eligibility service requisite for promotion as officiating Executive Engineers,
violates the conStitutional guarantee of .equal treatment enshrined in Art. 16 of
the Constitution.
·
' ''
Allowing the appeal, .
JlELD (i) It is manifest that direct recruits and prOmolees in C13ss-II "coils·
titute two distinct groups or classes. This classification has a historical back·
· ground and a rational basis. 'The promotees from the lower ranks have only
one chance of getting into Class-II service, as against three
available to the
direct recruits.
Further •. for a considerable time, recruitment
by
promotion
from the ranks of temporary officiating Deputy Engineers etc., to Class-II service
remained frozen with consequent stagnation and loss of incentive in the service.
At the time of ·their entry into Class-II service, the
promotees are, broadly.
speaking, far older than the direct. recruits, and many of the promotees may have
less than 7 years to go before attaining 'the age of superannuation. If in the
case of both these ¥.roups of promotees and direct recruits with different back ..
grounds. and dissimilar circumstances, the period of 7 years eligibility service
were to start" from the date of their absorption in Class·II, then for most of the
promotees, there would be a rare chance of ever getth1g promotion as officiating
Executive Engineers. The classification is thus based on intelligible. differentia.
256
SUPREME COURT REPORTS
[ 1974] 2 s.c.a.
(Ii) If a penon, like any of the reo~ondento, to avoid the Iona tortuou1 wait
leave his position in t

## Text

~
"
B
~
\
c
D
E
(~
'
.F
STATE OF GUJARAT
v.
C. G. DESAI AND OTHERS
No\'ember 13, 1973
[V. R. KRISHNA !YER AND R. S, SARKARIA, JJ.]
255
Engineering Service....:_Bon1bay Engineering Service .Rutes, 1960-Rule 1(ii)-
Direct rf'cruits de1na11ded their pre-selection service counted for the purpose of
promoriori-1/ perniissible-Whether Art. 16 of the Constitution violated.
Respondent No. 1 was officiating as Deputy Engineer from ~·fay 16, 1955 to
December 3, 1959 in the P.W.D. of the then State of Bombay. Thereafter, he
was selected by competitive examination and appointed to a post in .B.S.F.
ClasS-11 Service.
Under the Engineering Service Rules, 1960, a direct recruit is
required to undergo training for one year and thereafter to work on probation for
another year as in-chariz:e of a sub-division. Since respondtnt N0. 1 had already
worked as officiating Deputy Engineer, the initial period of one year's training
was dispensed with and he was directly plac..ed in-charge of a sub-diVision.. After
completion of 2 years, he was confirmed as Deputy Engineer in Class-II ftom
December 3, 196 I.
·
ln 1une 1961, the Committee aPpointed to prepare a seleci-list of Deputy
Engineers for promotion as officiating Executive Engineers, did . not consider
responde_nt_No. l for_promotic;~ because he had .. not put in 7 years (r~duced to ,
6· years 1n 1961) service requls1te under rule 7(11) for such promouon. The.
Government's stand was that-the service rendered by the direct recruits prior to
their appointment t0 Class-II could. not be. taken into account in computing their
eligibility service of 7 years. The case of respondent no. 1 was that μ~der the
Rules, his pre-selection service (from 16-5-1955 to 2-12-1959), must' be' t['lcked
on to his post-selection service for cakulating· the requisite period of his eligibi~
lity service.
' ·
ln the case or' r.eSPonde"rits Nos. 2 and: 3 also'. the Governrne11t 1.lid ncit count
the period of their pre·selection service for the purpose of their eligibility· services
and hence the dispute.
.
_'_,_,,;. ·'.·. -:·: · 1 :-~
.·:·,
•
,.-
The High Court :.found that the differentiation·· made Qy the 1 dovernm~nt in
the application of the rules,· had no reasonable nexus \Vith the object" of promotion and the action of the Government was discriminat0ry and so violative :if
Art. 16 of the· ConStitution.
On appeal, the question for
consideration
was
whether the ·action of the State Government in treating 'differently' the promotees and direct recruits in Class-II for the purpose of computing the' penod of
their eligibility service requisite for promotion as officiating Executive Engineers,
violates the conStitutional guarantee of .equal treatment enshrined in Art. 16 of
the Constitution.
·
' ''
Allowing the appeal, .
JlELD (i) It is manifest that direct recruits and prOmolees in C13ss-II "coils·
titute two distinct groups or classes. This classification has a historical back·
· ground and a rational basis. 'The promotees from the lower ranks have only
one chance of getting into Class-II service, as against three
available to the
direct recruits.
Further •. for a considerable time, recruitment
by
promotion
from the ranks of temporary officiating Deputy Engineers etc., to Class-II service
remained frozen with consequent stagnation and loss of incentive in the service.
At the time of ·their entry into Class-II service, the
promotees are, broadly.
speaking, far older than the direct. recruits, and many of the promotees may have
less than 7 years to go before attaining 'the age of superannuation. If in the
case of both these ¥.roups of promotees and direct recruits with different back ..
grounds. and dissimilar circumstances, the period of 7 years eligibility service
were to start" from the date of their absorption in Class·II, then for most of the
promotees, there would be a rare chance of ever getth1g promotion as officiating
Executive Engineers. The classification is thus based on intelligible. differentia.
256
SUPREME COURT REPORTS
[ 1974] 2 s.c.a.
(Ii) If a penon, like any of the reo~ondento, to avoid the Iona tortuou1 wait
leave his position in the "ne\oer endtna' queue of temporary o!liciatlna Deputy
Engineers etc., lookina tor promotion and takes f short-cut through the direct
channel to Class JI service he alves up once for all, the advanta1e1 and disadvantages that so with the channel of promotion and accepto all the handlcai>t
and benefits which .attacb. to the aroup of direct recruits. He cannoti after h1a
direct recruitment, claim the benefit of his pre-selection service an4 thus have
best of both the worlds.
11· Is well settled that &o Iona as the classification is
reasonable and the persons fallins: in the same class are treated alike, there is no
question of violation of the constitutional auarantee of equal treatment. [261DJ
Gangaram v. Union of India, (1970] 3 S.C.R. 481, referred to.
(iii) The select Ust is prepared ·On the basis of 'seniority-cum-merit' .and tbe
inter-se seniority of the selected officers in the lower ranks is ordinarily to
be
maintained in. the prOmoted ranks. Acceptance of the rcipondent's contention
will make the smooth working and uniform application of this
principle
of
seniority-cum-merit difficult. The inter-se senionty of the selected officers will
be seriously disturbed and the Department will be faced with the aoomaloua
situation of a junior officer, with pre-selection service,
becoming eligible
to
be conRidered for promotion over the head of his seniors, even in the same
group, having no such fortuitous pre-selection service to their credit. There
is nothing in rule 7 (ii) which compels the interpretation that in the case Of
direct recruits also, tl;leir pre-selection service as o·fficiating Deputy Engineers,
if any, should be counted towards their "eligibility service
0
•
Such an interpreta•
tion would cr~ate two classes even amongst direct recruits and thus ruult in
inequality of treatment rather than in removing it. Under the circumstances,
it cannot be said that the respondents possessed the required length of service
in Class-JI to be entitled to promotion aloniz with others. [262C]
Prabhakar Ytshwant Joshi v. State of Maharashtra, [1970] 2 S.C.R.. 615,
referred tc.
A
B
c
D
CivIL APPELLATE JURISDICTION: Civil Appeal No. 2170 of 1970 ..
Appeal by special leave from the judgment and order dated
E
1/2-5-69 of the Gujarat High Court at Ahmedabad in Special Civil
Application No. 1221 of 1968.
M. C. Bhandare and S. P. Nayor, for the appellant.
Y. S. Chita/e, V. N. Ganpule and P. C. Kapur, for the respondents,
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by special leave by the State is directed
against the judgment and order, dated November·24, 1970, of the High
Court of Gujarat allowing a writ petition of (I) C. G. Desai·; (2) B. L.
Joshi and (3) H. N. Shah filed under Article 226 of the Constitution.
The material facts are not in dispute and may now be stated :
Respondent No. I herein (original petitioner No. 1) was officiating
as Deputy Engineer since May 16, 1955, in the P.W.D. Department of
the then State of Bombay and he continued in service as such until on
December 3, 1959, he was selected and appointed as a result of the
competitive examination held by the Public Service Commission, to a
post in B.S.E. Class II Service. Under the Engineering Service Rules,
1960 (hereinafter called 1960 Rules), a direct recruit is required to
undergo training for a period not exccedin~ one year and thereafter to
work on probation as in-charge of a Sub-Division for a further period
of one year. Since Respondent No. I had already worked as officiating
F
G
H
B
-t
\
c
D
f
E
F
'
G
H
GUJARAT v. c. G: DESAI (Sarkaria,J.)
257
Deputy Engineer, the initial period of one yeai's training in his case was
dispensed with and he was directly pfaced in-charge of a Sub-Division.
On completion of his two years' probation he was confirmed as Deputy
Engineer in Class II with effect from December 3, 1961. Sometime
in June, 1961; a Committee appointed by the State Government prepared a select-list of Deputy Engineers for promotion as officiating
Executive Engineers; but the case of Respondent No. 1 was not considered for the reason that he had not put in 7 years (reduced to 6 years
in 1961) service requisite under Rule 7(ii) for such promotion (hereinafter, for short, called· 'eligibility service'). The Government's stand
was that in the case of Deputy Engineers directly recruited through a
competitive examination held by the .Public Service Commission, service, if any, rendered by them as officiating Deputy Engineers prior to
their appointment to Class II (hereafter called 'pre-selection service')
could not be taken into account in computing their eligibility service.
The case of Respondent No. 1 herein was that this stand of the Government was wrong and, under the relevant Rules his pre-selection service
(from 16-5-1955 to 2-12-1959) as officiating Deputy Engineer had to
be tacked on to his post-selection service for calculating the requisite
period of his eligibility service. When the next select-list was prepared
in the year 1963, Respondent No. 1 was included in that list and, in_
consequence, promoted as officiating Executive Engineer. Since then
he has been working as such in the promoted rank.
Respondents Nos. 2 and 3. herein (original petitioners Nos. 2 and
3) were promoted as Deputy Engineers on July 8, 1957, and September
28, 1957, respectively •. They continued to work in that capacity till
December 3, 1959, when they, too like Respondent No. 1 were directly
recruited as Deputy Engineers in Class II Service as a result of the competitive examination held by the Public Service Commission. On completion of their probationary period of two years, they were confirmed
as Deputy Engineers on December 3, 1961. In their case, also, the
Government did not count their pre-selection service from July 8, 1957
to December 3, 19!'.'.9 for computing their eligibility service, for further
promotion; and, in consequence, they were also not considered eligible
for selection at the time of the preparation of the select-lists of 1961,
1963 and for the subsequent years upto 1966. The Respondents (then
petitioners) prayed for a writ of mandamus or any other appropriate
writ or order directing the State Government to determine and settle
their seniority in accordance with tlie provisions of rule 8(il and (ill) ·
of the Government Resolution_ dated April 29, 1960.
· The main ground taken in the petition before the High Court, was,
that the action of the Government in excluding from computation the
service rendered by the Respondents as officiating Deputy Engineers
prior to their selection as Deputy Engineers Class II Service, was violative of Article 16 of the Constitution of India. The contention was
th!'t the rule of eligibility for promotion had not been uniformly applied to all Deputy Engineers inasmuch as in the case of' persons who
were recruited to Class II by promotion, their pre-selection service as
Officiating or Temporary Deputy Engineers was computed towards their
eligibility service but the same treatment was denied to Deputy Engineers
directly recruited.
·
·
.
.
258
SUPREME COURT REPORTS
( 1974] 2 S.C.R.
In the counter filed on behalf of the State, i( was averred that this
distinction between the direct recruits and promotees in computing their
· eligibility service for further promotion was observed as a matter of
deliberate policy. ,It was added that at the time of the preparation of
A
B
the select list of Deputy Engineers fit to be promoted as Executive Engineers in 1965, the claims of officiating Deputy Engineers appointed
subsequent to 1-11-1956, were riot considered; while the claims of directly recruited Deputy Engineers though appointed after November l;
1956, were so conslc!ered because of the special provision for the latter
category of Deputy Engineers as per Government Resolution, dated 29th
April, 1960. The Government therefore, felt that as the direct recruits
were getting special treatment because of being direct recruits, they .
should not be allowed a further· advantage of counting, for the purpose
r
'
I
of further promotion, their pre-selection service towards the period of
their eligibility service.
. C
The High Court found that the. differentiation in question made by
the Government in· the application of the Rules, had no reasonable
nexus with the object of promotion; and the action of the Government
was therefore clearly discriminatory and amounted to a denial of equal
opportuuity to directly recruited Deputy Engineers like petitioners Nos.
•D
1 to 3. In the result, the High Court allowed the application of the
present Respondents 1 to 3 and issued a writ of mandamus directing
that their case "for_ promotion as officiating Executive Engineers shall
. be considered on· the basis that the pre-selection service rendered by
them as officiating Deputy. Engineers prior. to their direct recruitment
as .Deputy. Engineers: was liable to be taken into account in counting
the minimum period of seven years service requisite for promotion as
E
officiating Executive E~g!neers.'' ·
In' order to appreciate the controversy, if is necessary to notice briefly
I
the history' of these Engineering Services and the relevant rules which
J.
are appendages to various Government ·Resolution passed from time to
•. ,
·time: Originally, the Government of Bombay in the Public Works Department passed a Resolution on March 22, 1937, in pursuance of which
F
Bombay Engineering Service consisting of Class I and Class II was con-
. stituted. · The posts of Chief Engineer, Superintending Engineer and
Executive Engineer were placed in Class I, while those of Deputy Engineers were put in Class II.· The recruitment to both Class I and Class
II was partly. by direct recruitment and partly by promotion from the
lower ranks. In 1939, further rules were framed under which recruit-
, ment to Class II Service was to be made either :
G
(a) by nomination under rule 11 under ·the· guarantee
given to the College of Engineering, Poona or
(b) by promotion from the :
r
(i) Subordinate Engineering Service;
H
(ii) . Permanent and Temporary Supervisors and
(iii) Temporary Engineers appointed on annual sanction.
I
•
\
\
f
.
,(
A
B
c
D
E
F
GUJARAT v. c. G. DESAI (Sarkaria, !.)
259
On the 27th May 1947, the Government of Bombay withdrew its
guarantee of certain appointments given to the students of the Engineering College, Poona; and thereafter, appointed a Committee (known as
Gurjar Committee) to examine the question of recruitment to the Engineering Services and allied matters. In the meantime, the Government of Bombay made direct recruitment to Class I and Class II Service through competitive examination held by the Public Service
Commission.
Though the Committee made.its reco=endations in 1951, yet this
provisional arrangement appears to have continued upto April 29, 1960,
on which date, the Government of Bombay in the Public Works Department passed a Resoltifion delineating the principles of recruitment
to the ·Bombay 1 Service of Engineers, Class I and Class II. Shortly,
thereafter the Bombay State was bifurcated; but the 1960 Rules continue to be applicabfe to the Engineering Services of the new State of
Gujarat, to which the Respondents herein, were allotted.
By. the Resolution of 1960, the existing Class I and Class. II Services
were continued. The appointments to both these Services are to be by
direct recruitment through competitive examination held by the Public:
Service Commission and also by promotion in the ratio of 7 5 : 25. As
per rule 2, the candidates appointed from either service have to be on
probation for a period of two years; in the first instance as trainees for
a period not exceeding one year, and then in a probationary capacity,
in-charge of a Sub-Division for one year more. On satisfactory completion of the period of probation, the candidates recruited from both
the Services are confirmed as Deputy Engineers in the cadre of Class II
or as Assi_stant Engineers in Class _I, as the case may be.
.
The provisions of 1960 Rules material for our purpose, are to be
found. in Rules 6, 7 and 8, which read thus :
"6(i) .
(ii) For alisorption into Class I, a Class II Officer must
be in the permanent Bombay Service of Engineers Class· II.
cadre, should have at least 15 years service to his credit in
Class II in temporary and permanent capacitfes, and should
be holding an officiating divisional rank, at the time of such
absorption. On such absorption, the Class II Officers. shall .
be confirmed as Executive Engineers ..
(emphasis supplied)
G
(iii)
H
7 (i) Since the percentages in the superior posts of direct
Class I recruits and promotees from Class Ifis to be about 75
and 25, the number of promotions from Class II in any year
. would be about one-third of the_ number of directly recruited
Assistant Engineers confirmed as Executive Engineers during
that year. Recruitments in the past, have, however been
erratic and insufficient .... to Class I. In order to deal with
such situations; the following rules shall be supplemental and
exceptional to those in paragraph 6 above :
260
SUPREME COURT REPORTS
[ 1974 J 2 s.c.a.
(ii) As far as possible promotions as Officiating Executive Engineers shall be so made that the promotee under consideration from Class II has to his credit at least 6 years longer service than a promotee nnder consideration from Class 1,
subject as far as practicable, to the condition that a Class I
Officer shall not hold a divisional rank at less than 4, and, a
Class II Officer at less than 7 years' .ervice.
(emphasis supplied)
Subject to availabilities, and the above criteria, an attempt should be made to maintain the percentages, stated in
paragraph 6(i) above, ,between direct Class I and promoted
Class lI Officers in the total of permanent plus officiating
superior posts.
(iii) _imd (iv)
8(i) The Sub-Divisional Posts in the Department arc at
present, manned by direct recruits to Bombay Service of Engineers Class II Cadre, Deputy Engineers confirmed from subordinate service of Engineers, .the temporary Deputy Engineers
recruited by the Bombay Public Service Commission, Officiating Engineers and similar other categories.
These various
categories are being compiled into two lists only, (i) Bombay
Service of Engineers Class II cadre of permanent Deputy
Engineers and a List of officiating Deputy Engineers .. c ,
(ii) All direct recruitment of temporary Deputy Engineers
have been stopped, further officiating vacancies
will be
manned from the rank of the subordinate Service of En&ineers .. ..... ''
The question that falls for decision is :
Whether the action of
the State Government in treating "differently" the. promotees and direct
recruits in Class ll, for the purpose of computing the period of their
eligibility service requisite for promotion as Officiating Execμtive Engineers, violates the constitutional guarantee of equal treatment enshrined in Article 16 of the Constitution ?
Mr. Bhandare, learned Counsel for the appellant has in the course
of his elaborate arguments stressed these points :
( 1) The two channels of promotion of direct recruits and
promotees are separate and there would be no violation of
Article 16, if these two classes continue to be treated differently;
(2) It would be open to the Government to lay down and
accept different conditions for these two classes in the matter
of their further promotion to Class I Service;
(3) Since all the direct recruits constitute one class, it is
not permissible to the Government to treat the members of the
same class differently and to make a distinction in the matter
of their promotion by taking into account the pre-selection
service of an officer when he was not a direct recruit in Class
II. To do so, would be to give an undue advantage to a
A
B
c
D
E
F
G
H
A
GUJAlljAT v. c. o>DESAl,(Sarkaria,J.)
261
.direct .recruit !ith pre-selection se~vic~ over his colleagues
who 'did not have such pre-selection service to their credit.
. Learned. Counsel further ur~Cd that there existed a ration.al .basis
for this classification and differential ·creatment of direct recruits · and
promotees in the matter of their 'Promotion to Class I. Reliance has·
. been placed on two decisioQs of tb1s .Court in Prabhakar Yahwant loshl
B
and Ors"v. The State of Maharashtra and Ors,(I) and Ga111a Ram and
Ors. v. Union .of India and. Ors.('). We shall presently examine the
effect of those decisions:
·
Mr. Chitley, learned C,ounsel for the respondents maintamed, in
reply, that .. rule.7(iQ d.oes not·perlQit disc~ation between·promo-
. tees and dtrect recrwts m the njatter of. computing the seven years' ser-
.·
C
viee as :Deputy '.Engineer requisite for further promotion as Officiating
Executive Engineer. The point sought to be made otit is that if this .
rule is corrcctl,Y interpret¢<! and uniformJy applied, then direct recruits
cannot be dented the advantage of tacking their 'pre-selection' service, ·
if any,. to.their 'post-selection' sei:viccin Class II.
·
! ·Aft~~ nearing the learned CO~! on bothJsides, we tbirik th~t the ..
. contentions of Mr. Bhandare·must prevail. It !is .manifest that direct· r~
D · cruits ll!ld. pr9~.tces in.Class !I coll.l~tut~ twti distll!ct 1!1'oups or. classes.
This classlficatton has a historical background and a rational bas11. · 'lbe
. pr6motees ,ftqm the lower. iaziks have o.nly ·one chance of getting into
. Clasl n servJce; as aaafnst 'three available to the direct recruits. . Further, for i cohsidefab1c time,. recruitment oy promotion from the ranks
of Temporary .offtciating Deputy Engineers etc. to Class II Service re-
· . ., . lnained .frozen with conse,ci,qcnt stagnatiqn and loss of inccμtive .in: the · ·
.. ·service. Circumstances being ·what they are, promotees, at the tillfe of·
their' entry into Class II Service, arc, broadly speaking, far ol<!er than
the direct recruits; and,, iuany of 'the promO!ees may have less than 7·
years to go before attaining the age of superannuation. If·.in the case
. . of"both ·these groups· of promotees and d~t recruits, with different
.. backgrounds .aad ;dissirnilll!' circumsta11ces,, the peri9d of seven years
F .. eligibijity 'service were to start from the date of their.absorption in Class
: .. .: . · U, 't\len., for most . <?f the prompt~. there "'.O\lld ~ a rare chance <?f
. : : ... , ev~r,gettmg promotion Ill! Of!!c!atmg ,Execu\tve Engineer. The class1-
.
.fication Is thus !ilfed on mtel11g1ble d1fl'erent1a.
·
·
G
. : . If. a person, like any of the respondents, to avoid the long tortuous
wait leaves his position in the 'never-ending' queue of Temporary /0ffi"
ciatina Deputy Engineers etc, looking for promotion, and takes a short
cut through the direct channel, to Class II Service, he gives up once for
all, the advantages and disadvantages that go with the channel of promotion and. accepts all the handicaps aqd benefits which attach to the
group of direct recruits. He cannot, after his direct recruitment claim
, the benefit of his pre-selection service and thus have the best ot both
· the worlc\s. It is well settled that so !qpg as the clusiftcation. is reaH. · sonable ·and the persons falling in the same class arc treated alike, there
can be no question of violation of the constitutional guarantee of equal
treatment.
·
·
·
(!) [1970] 2 s.c.R. 615.
(2) [1970] ~ S.C.R. 4U.
,, .
262
SUPREME COURT REPORTS
( 1974 j 2 S.C.R.
As pointed out by this Court in Ganga Ram's case (supra) in applying the wide language of Articles 14 and 16 to concrete cases doct,rinaire approach should be avoided and the matter considered in a
practhal way. If the claim of the respondents to the counting of their
pre-selection service is conceded, it will create serious complications
in running the administration; it will result in inequality of treatment
rather than in removing it. If the pre-selection servfoe as Officiating
Deputy Engineers of direct recruits having such service, is taken into
account for the purpose of promotion, it woulif create two classes
amongst the same group and result in discrimination against thoSt' direct
recruits who had no such pre-selection service to their credit.
The Select-List is prepared on the basis of seniority-cum-merit, and
the inter-se seniority! of the selected officer in the lower rank is ordinarily to be maintained
in the promoted rank. Acceptance of the
respondents' contention will make the smooth working and uniforin
application of this principle of 'seniority-cum-merit' difficult.
The
inter-se seniority of the selected officers will be seriously disturbed and
the ~partment will be faced with the anomalous situation of a junior
officer, with pre-selection service, becoming eligible to be considered
for promotion over the head of his seniors, even in the same group,
having no such fortuitous pre-selection service to their credit.
There is nothing in .rule 7 (ii) which compels the interpretation that
in the case of direct recruits, also, their pre-selection service as Officiating Deputy Engineers, if any, should be counted towards their 'eligibility ~ervice'. Rule 7 (ii) is silent with regard to the method of.computing the seven years period of eligibility service.
The interpretation of this condition of seven years service in rule
7 (iil is not res integra. It came up for consideration before this Court
in Prabhakar Yeshwant Joshi's case (supra). The petitioners therein
were also direct recruits to the posts of Deputy Engineers in B.S.E. Class
II. The respondents therein had entered Class II Service by promotion.
The petitioners chal!enged the promotion of the respondents to the
posts of Officiating Executive Engineers as being contrary to
the
principles of natural justice and violative of Arts. 14 and 16 of the
Constitution. It was inter alia contended that under the 1960' Rules
in force, respondents· 2. to 5 therein were only Officiating Deputy Engi·
neers and they had to put in, after confirmation, as Deputy Engineers,
seven years of actual ~ervice before being eligible for promotion as
Officiating Executive Engineer. Spe.aking for the Olurt, Jaganmohan
Reddy J. negatived this contention in these terms:
"Even this rule 7(ii) does not indicate that the qualifying
service of either of six years or of 7 years specified in the
rule has to be permanent service.
In cl. (ii) of r. 6 it is
provided that 15 years of service in Class II for absorption
(which means permanent absorption) as Executive Engineer
·· - can be in temwrary or permanent capacit(es.
There is
nothing in r. (iil to militate against the interpretation that the
service specified there be the total service of any description whether provisional, temporary or permanent. If promotion from Class II as officiating Executive Engineer can only
A
B
c
])
E
F
G
H
B
c
D
E
F
G
GUJARAT v. c. o. DESAI (Sarkaria, 1.)
be made after 7 years of permanent service, then there woufo
be no meaning in including the temporary service in Class II
for the purpose of absorption as Executive Engineer.
Even r.6 upon v;Jijch Shri Gupta has laid great emphasis in
support of his contention, does not, in our view, justify an
interpretation that 7 years' service required to entitle persons
in Class ll for promotion as an officiating Executive Engineer
should be pel'!Jlanent service in Class I. . . . . . . . . .
·
(within brackets ours)
26J
As we have seen earlier, (ii) of r. 7 doe.s no~ use t.he
word 'belong' but requires only that the person under consideration for promotion should be from 0... II service.
To be in Class II service the Deputy Engineer ' promoted
from subordinate service has to put in at least 3 years of
service as officiating Deputy Engineer before being confirmed
and thereafter he can when he is promoted to the next
higher rank be confirmed as Executive Engineer if he has put
in 15 years in Class II service in temporary or permanent
capacihes and is holding an officiating divisional rank namely
of an Executive Engineer, If temporary service can be
taken into account for confirmation as an Executive Engineer, so -can officiatinp; service, and if . officiating service
can be taken into consideration, there is no iropediment to a
Deputy l:!ngineer with 7 years' serviee whether officiating,
temporary or permanent, to entitle him for promotion as an
Executive Engineer ..... , . .
.
We cannot, therefore, accept the contention of Shri Gupta
that a promotee officiating Deputy Engineer Class II is not
entitled to be considered for promotion under r.7 to the post
of, an officiating Executive Engineer unless he has put in 7
years of service from the date of confirmation."
What is quoted above, no doubt, pertains to the case of promotees,
with which the Bench was mainly concerned. But the obs•rvations in
the pcnul1imate paragraph of the judgment excerpted below, incidentally cover the issue now before us:
"None of the petitioners, it is averred, was included in
the Select List of 1964 or 1965 because not only did any of
them not have the requisite seven years• service as Deputy
Engineer at the relevant time ......... .
The petitioners however denied in their re.ioindcr that ~he
lists were prepared keeping the criteria laid dow.n
by the
rules, but in our view, it is significant that they did not posse1s
the required length of service -in Class II for them to be
H
entitled to promotion when the respondents were included in
the list and promoted as such they cannot challenge the
appointments made as being 1n violation of Art. 14 or Art.
16."
(emphasis supplied)
'-S2211CI/74
264
SUPREME COURT REPORTS
[ 1974] 2 S.C.R·
In the light of the above discussion, we are of the opinion tha.t the
A
learned Judges of the High Court were in error in holding that the
impugned action· of the Government suffered from the vice of dis<:riml·
nation and as such was violative 'of Art. 16 of the Constitution. We,
therefore, allow this appeal, set aside the judgment of th! High Court
and dismiss the writ petition, leaving the parties, In the clrcumstancet
to their own costs.
B
s.c.
Appeal allowed.
JI