Appeal Nos
691 97 of 1993
From the Judgment and Order dated 391991 of the Rajasthan High Court in DB Civil Writ Petition Nos
2221 2353 and 3222 of 1990
PP Rao VM Tarkunde Sushil K Jain AP Dhamija Sudhanshu Atreya Aruneshwar Gupta Ms Mamita Naroola and Pushpandra Singh Bhatia for the Appellants
P Chidambaram Pallay Shishodia AP Medh and RM Tahija for the Respondents
The Judgment of the Court was delivered by VERMA J
Leave granted
These appeals by special leave are by the State of Rajasthan and certain candidates whose promotions are adversely affected by the impugned judgment of the Rajasthan High Court
The dispute in the writ petitions filed in the High Court was between members of the Rajasthan Educational Service belonging to Group E  and Group F pertaining to their rival claims for promotion to the posts of principal Higher Secondary School which posts are in Group D  Section II of the Rajasthan Educational Service
The dispute between these two groups arises from the fact that in the Rajasthan Educational Service Rules 1970 hereinafter referred to as the Rules  the aforesaid two groups E  and F  are clubbed together as the feeder cadre for promotion to Group D  Section II even though in the service hierarchy the lowest is Group F  above which is Group E  and then comes Group D 
In the writ petitions filed in the High Court the writ petitioners challenged the constitutional validity of this provision in the Rules clubbing together Group E  and Group F for the purpose of promotion to Group D 
Section II on the ground that unequals had been equated
The High Court has allowed these writ petitions and held that item No 1a in column 5 under the head Group D  Section II of 1091 Schedule 1 to the Rules as also Item No 1 in Schedule 11 under the head Group D  Section 11 in column 5 are unconstitutional being violative of Articles 14 and 16 of the Constitution
Accordingly the High Court has quashed the orders promoting members of Group F to posts in the Group D 
It is this judgment dated 391991 of the Rajasthan High Court which is challenged in these appeals by special leave by the State of Rajasthan and members belonging to Group F of the Service whose promotions are quashed
Before we refer to the relevant provisions mention may be made of the rival contentions before us Shri PP Rao learned counsel for the aggrieved Group F teachers advanced several arguments
He submits that the Rules require preparation of a combined seniority list of an eligible members of Group E  and F and prescribed the placing of those in Group E  en bloc above the persons belonging to Group F and it is also prescribed that amongst those selected for promotion to Group D  the pre existing inter se seniority within the Group and also between the two groups is to be maintained that is all those from Group E  are to rank above those from Group F He submits that the interpretation and working of the Rules in this manner which is the case of the State Government is in consonance with Articles 14 and 16 of the Constitution
His next submission is that reservation of a percentage of the promotion quota to be filled exclusively on the basis of merit does not violate the guarantee of equality since it promotes the object of greater efficiency as those considered in the merit quota are all qualified and eligible for promotion
His further submission is that Rule 255 applies to promotion to the next higher grade from the lowest grade while Rule 25 6 applies to promotions to all other higher grades
In other words for promotion from Group F to Group E  Rule 255 applies while for promotion from Group F directly to Group D  Rule 256 applies
He also submitted that Rule 23A does not apply where promotion to a higher grade is from more than one grade
Shri Aruneshwar Gupta appearing for the State of Rajasthan adopted the arguments of Shri Rao
He also submitted that the writ petitioners having appeared for interview before the DPC and taken their chance they are precluded from making the challenge when they failed to get selected
Shri VM Tarkunde who appeared for one of the aggrieved appellants supported Shri Rao and made some more submissions
Shri Tarkunde submitted that the difference between members of Group F and Group E  is not substantial since both of them had been 1092 functioning as Headmasters and discharging similar duties so that they were equally suitable and qualified for promotion as Principal of a Higher Secondary School
Shri Tankunde submitted that no person belonging  to Group E  found suitable for promotion to Group D  was left out and therefore filling the remaining vacancies from amongst suitable and qualified persons belonging to Group F  cannot be violative of the rights if any of those in Group E  who were not promoted because they were not found suitable for promotion
Learned counsel also submitted that qualitatively those promoted from Group F  were according to the service record not inferior to persons lower down in Group E who had not been selected and the principle of equation adopted was fair to all
It was also shown with reference to the particulars of those not selected for promotion from Group E  and those found suitable for promotion in Group F  that the principle adopted and applied was fair and reasonable with no element of arbitrariness
In reply Shri Pallay Shishodia learned counsel for the respondents who arc persons not selected for promotion from Group E  to Group D  attempted to support the impugned judgment
In all there were 14 such persons who filed the three writ petitions in the High Court
The main argument of Shri Shishodia is that ex facie clubbing of Group F  a lower cadre with Group E  for promotion to Group D 
Section II violates the equality clause
Shri Shishodia contended that the explanation now given by the State Government to justify the promotions made is not based on a policy adopted and followed but on the fortuitous circumstances which have emerged from the results of the promotions
Shri Shishodia also submitted that the yardstick was applied equally rigidly to members of Group E  as to those from F  when it should have been more stringent for those in Group F  which was a lower grade
In order to satisfy ourselves that the policy adopted by the State Government was fair in its application to members of both Group E  and Group F we directed the State Government to produce the relevant material including the particulars of candidates selected for promotion and those not found fit for promotion in Group E  as also the guidelines followed
On examination
of those details we are satisfied that the net result of the working of the Rules in accordance with the principle adopted has been fair and it cannot be held that those not selected for promotion in Group E  have been dealt with unfairly in any manner to justify 1093 quashing the promotions made at this selection
We may however observe that it would be advisable for the State Government to lay down more clearly its policy for the future to avoid even the semblance of treating unequals as equals for the purpose of promotion in consonance with the well known maxim that justice should not only be done but should also be seen to be done
We do hope that the State Government would take advantage of the experience gained from this litigation to dispel the misapprehension from the minds of a section of its employees who think that the State s action is not fair
Obviously the High Court was denied the benefit of the material which the State Government placed before us on our directions which enabled us to remove the gloss of seeming inequality in the policy adopted under the Rules read with the guidelines for its working
We may first refer to the relevant parts of the Rajasthan Educational Service Rules 1970
PART II CADRE 4
Composition and strength of the Service 1 The Service shall consist of the posts as arranged in the various groups specified in the Schedule
2 The nature of posts included in each group of the Service shall be as specified in Column 2 of the Schedules
3 The strength of posts in each group of the service shall be such as may be determined by the Government from time to time
4 There shall be separate cadres in each Group of Service specified in the Schedules I to VI such as Schedule I for Boys Institutions
Schedule II for Girls Institutions
Schedule III for Science and General Institutions
1094 Schedule IV for Institutions of Language Studies
Schedule V for Institutions of Physical Education and Schedule VI for Institutions of Arts Music and others
The posts mentioned in each Group of service in a particular Schedule shall be interchangeable within the same Group of an Schedule provided such posts carry identical time scale of pay
Initial Constitution of the Service The Service shall consist of a all persons holding substantively the posts specified in the Schedule b all persons recruited to the Service before the commencement of these rules and c all persons recruited to the Service in accordance with the provisions of these rules
PART III RECRUITMENT 6
Methods of Recruitment Recruitment to the Service after the commencement of these rules shall be made by the following methods in the proportion indicated in column 3 of the Schedule namely a by direct recruitment in accordance with provisions of Part IV of the rules and b by promotion in accordance with the provisions of Part V of these rules xxx xxx xxx 8C Power to remove difficulties  1095 The State Government may for the purpose of removing any difficulty in regard to other matters regarding recruitment probation confirmation promotion etc
and in im plementation of provisions of rules 6A and 6B make any general of specific order as it may consider necessary or expedient in the interest of fair dealing or in the public interest in consultation with the Commission where necessary  PART V PROCEDURE FOR RECRUITMENT BY PROMOTION 23
Eligibility and Criteria for Selection 1 The persons holding the posts enumerated in Column 5 of the Schedules shall be eligible on the basis of merit and seniority cum merit for promotion to posts specified in column 2 thereof subject to their possessing the qualifications and experience on the first day of the month of April of the year of selection as specified in column 6 thereof Provided that a member of the Service shall not be debarred from promotion for want to training qualifications
XXX 23A No officer shall be considered for promotion unless he is substantively appointed and confirmed on the next lower post
If no officer substantive in the next lower post is eligible for promotion officers who have been appointed on such post on officiating basis after selection in accordance with one of the methods of recruitment or under any Service Rules promulgated under proviso to Article 309 of the Constitution of India may be considered for promotion on officiating basis only in the order of seniority in which they would have been
had they been 1096 substantive on the said lower post
Procedure for selection on the basis of seniority cum merit 1 As soon as it is decided that a certain number of posts shall be filled by promotion the Director shall prepare a correct and complete list containing names not exceeding five times the number of vacancies out of the senior most persons as mentioned in column 5 of the Schedule who are qualified under the rules for pro notion to the posts concerned
He shall forward this list alongwith their confidential rolls and personal files to th e Secretary to the Government in the Education Department
xxx xxx xxx 2a For the posts appointments whereto are to be made by Government a Committee consisting of the Chairman of the Commission or his nominee being a member thereof nominated by him the Secretary to Government in the Education Department or the Special Secretary concerned nominated by him and the Special Secretary to Government in the Department of Personnel or his representative not below the rank of Deputy Secretary as member and the Director as Member Secretary and for the posts appoint ments whereto are to be made by the Director a Committee consisting of a Member of the Commission nominated by the Chairman of the Commission Deputy Secretary to Government in the Education Department and Deputy Secretary to Government in the Department of Personnel as members and the Director as Member Secretary shall consider the cases of all persons included in the list interviewing such of them as it may deem necessary and shall prepare a list containing names of suitable candidates upto twice the number of such posts as are indicated in sub rule 1
Provided that in case any Member Secretary as the case may be constituting the Committee has not been appointed 1097 to the post concerned the officer holding charge of the post for the time being shall be the Member or MemberSecretary as the case may be of the Committee
b The Chairman or the Member of the Commission shall preside at all meetings of the Committee at which he is present
3 The Committee shall prepare a separate list containing names of persons who may be considered suitable to fill temporary or permanent vacancies already existing or are likely to occur till the next meeting of the Committee on a temporary or officiating basis and the list so prepared shall be reviewed and revised every year and shall remain in
force until it is so reviewed or revised
4 The Committee may coopt an expert from outside to assist the Committee for selection of candidates for such posts as are to be filled by promotion
5 The names of the candidates selected as suitable shall be arranged in the order of seniority
6 The list prepared by the Committee shall be sent to the appointing authority together with the confidential rolls and personal files of the candidates included in them as also of those superseded if any
7 Where consultation with the Commission is necessary the lists prepared in accordance with the sub rules 2 and 3 shall be forwarded to the Commission by the Appointing Authority alongwith xxx xxx xxx 8 The Commission shall consider the lists prepared by the Committee alongwith the other documents received from the Appointing Authority and unless it considers any change to be necessary to be made shall approve the lists but if the Commission considers such change as aforesaid to be necessary it shall inform the appointing authority of 1098 the new changes proposed by it and after taking into account the comments if any of the Commission the Appointing Authority may approve the list finally with such modifications as may in its opinion be just and proper 25
Revised Criteria Eligibility and Procedure for promotion to Junior Senior and other posts encadred in the Service 1 As soon as the Appointing Authority determines the number of vacancies under rule regarding determination of vacancies of these rules and decides that a certain number of posts are required to be filled in by promotion it shall subject to provisions of sub rule 9 prepare a correct and complete list of the senior most persons who are eligible and qualified under these rules for promotion on the basis of seniority cum merit or on the basis of merit to the class of posts concerned
2 The persons enumerated in column 5 or the relevant column regarding posts from which promotion is to be made as the case may be of the relevant Schedule shall be eligible for promotion to posts specified against them in Column 2 thereof to the extent indicated in Column 3 subject to their possessing minimum qualifications and experience on the first day of the month of April of the year of selection as specified in Column 6 or in the relevant column regarding minimum qualification and experience for promotion as the case may be
3 No person shall be considered for first promotion in the Service unless he is substantively appointed and confirmed on the lowest post in the Service
After first promotion in the Service for subsequent promotions to higher posts in the Service a person shall be eligible if he has been appointed to such post from which promotion is to be made after selection in accordance with one of the methods of recruitment under any Service Rules promulagated under proviso to Article 309 of the Constitution of India
1099 Explanation In case direct recruitment to a post has been made earlier than regular selection by promotion in a particular year such of the persons who are or were eligible for appointment to that post by both the methods of recruitment and have been appointed by direct recruitment first shall also be considered for promotion
4 5Subject to the provisions of sub rule 7 selection for promotion from the lowest post or category of post in the State Service to the next higher post or category of post in the State Service and for all posts in the Subordinate Services and in the Ministerial Services shall be made strictly on the basis of seniority cum merit from amongst the persons who have passed the qualifying examination if any prescribed under these rules and have put in at least five years  service unless a different period is prescribed elsewhere in these rules on the first day of the month of April of the year of selection on the post of category of post from which selection is to be made Provided that in the event of non availability of the persons with the requisite period of service of five years the Committee may consider the persons having less than the prescribed period of service if they fulfil the qualifications and other conditions for promotion prescribed eleswhere in these rules and are found otherwise suitable for promotion on the basis of seniority cum merit
6Selection for promoting to all other higher posts or higher categories of posts in the State Service shall be made on the basis of merit and on the basis of seniority cum merit in the proportion of 5050 Provided that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year selection by promotion on the basis of seniority cum merit may be made in the same manner as specified in these rules
1100 Explanation If in a Service in any category of post number of post available for promotion is an odd number then for purposes of determining the vacancies for selection by promotion on the basis of seniority cum merit and merit in the proportion of 5050 the following cyclic order shall be followed The first vacancy by seniority cum merit The subsequent vacancy by merit The cycle to the repeated
xxx xxx 10 Except as otherwise expressly provided in this rule the conditions of eligibility for promotion constitution of the Committee and procedure for selection shall be the same as prescribed elsewhere in these rules
11 a The Committee shall consider the cases of all the senior most persons who are eligible and qualified for promotion to the class of posts concerned under these rules and shall prepare a list containing names of the persons found suitable on the basis of seniority cum merit andor on the basis of merit as the case may be as per the criteria for promotion laid down in these rules equal to the number of vacancies determined under rule relating to Determination of vacancies of these rules
The list so prepared on the basis of seniority cum merit andor on the basis of merit as the case may be shall be arranged in the order of  seniority on the category of posts from which election is made
b The Committee shall also prepare a separate list on the basis of seniority cum merit andor on the basis of merit as the case may be as per the criteria for promotion laid town in the rules containing names of persons equal to the number of persons selected in the list prepared under a above to fill temporary or permanent vacancies 1101 which may occur subsequently
The list so prepared on the basis of seniority cum merit andor on the basis of merit shall be arranged in the order of the seniority in the category of posts from which selection shall be made
Such a list shall be reviewed and revised by the Departmental Promotion Committee that meets in the subsequent year and that such list shall remain in force till the end of the last day of the next year or till the Departmental Promotion Committee meets whichever is earlier
c Such lists shall be sent to the Appointing Authority together with annual Confidential ReportsAnnual Performance Appraisal Report and other Service Record of all the candidates included in the lists as also of those not selected if any
Explanation For the purpose of selection for promotion on the basis of merit officers with outstanding  or consistently Very Good record shall only be selected and their names arranged in the order of seniority PART VI APPOINTMENT PROBATION AND CONFIRMATION xxx xxx xxx 28
Seniority  Seniority of persons appointed to the lowest post of the Service or lowest categories of posts in each of the GroupSection of the Service as the case may be shall be determined from the date of confirmation of such persons to the said post but in respect of persons appointed by promotion to other higher posts in the Service or other higher categories of posts in each of the GroupSection in the Service as the case may be shall be determined from the date of the if regular selection to such posts
1102 Provided xxx xxx xxx 7 that the common seniority of persons appointed to posts mentioned in Group E  and F  for promotion to the posts in the Group D  shall be determined with reference to the date of their substantive appointment
The inter se seniority of person selected by the Commission or Committee shall be as indicated by the Commission or Committee
litter se seniority of person  selected against departmental promotion quota shall be deter mined under rules 24 and 25 8  9 that the persons selected and appointed as a result of a selection which is not subject to review and revision shall rank senior it the persons who are selected and appointed as a result of subsequent selection
Seniority inter se of persons selected on the basis of seniority cum merit and on the basis of merit in the same selection shall be the same as in the next below grade
xxx xxx XXX SCHEDULE 1 XXK XXX XXX Group D  Section II SNo
Col 1 1 a Name of post Principal Higher Sec
Col 2 Sclioo1BSTCRTC Boys Method of recruitment 100 by promotion with percentage Col 3 Post or posts from which Group E   promotion is to be made E  posts Col 5 1103 SCHEDULE 11 xxx xxx xxx Group D  Section II SNo
Col 1 I a Name of post Principal Higher Sec
Col 2 SchoolBSTCRTC Girls Method of recruitment 100 by promotion with percentage Col 3 Post or posts from which Group E   promotion is to be made F  posts Col 5 Reference may be made also to the Circular dated 119
1978 Department of Personnel and Administrative Reforms Department of Personnel A Group II No F710DOPA 107 1 dated 11th September 1978 relating to sub rule 6 of Rule 25 and the Circular dated 2841979 Department of Personnel A II No F710 DOPA II77 dated 28th April 1979 and the Notification dated 30111991 Department of Personnel  Administrative Reforms Department of Personnel A II No F710DOPA II77 dated 30th November 1991 providing guidelines for selection on the basis of merit relating to Explanation to sub rule 11 of Rule 25 issued by the State Government wherein it was stated as under Circular dated 1191978 Subject Promotion to certain categories of posts to be filled in on the basis of Merit and Seniority cum Merit
The existing sub rule 6 of the relevant rules regarding revised procedure for promotion provides for promotion to certain categories of posts on the basis of seniority cummerit and merit in the ratio of 5050
These rules do not clearly indicate whether selections for such categories of post shall be made first on the basis or seniority cummerit or on the basis of merit 
The matter has been considered by the Government and 1104 the following procedure should be followed The number of posts to be filled separately on the basis of seniority cum merit and merit should be determined in accordance with the Explanation below sub rule 6 of the rule laying down the revised criteria of eligibility promotion etc
Selection should first be made for filling up vacancies to be filled on the basis of seniority cum merit
Thereafter persons should be selected on the basis of merit for filling up merit quota vacancies xxx xxx xxx Circular dated 2841979  xxx xxx xxx It will be observed that henceforth officers with consistently Very Good or Outstanding record shall be considered for promotion on the basis of merit
There will be only one category for the purpose of selection on the basis of merit Notification dated 30111991 AMENDMENT  For the existing Explanation below sub rule  or sub rule 11   shall be substituted by the following namely Explanation For the purpose of selection for promotion on the basis of merit no person shall be selected if he does not not have Outstanding or Very Good record in at least five out of the 7 years preceding the year for which DPC is held
 xxx xxx xxx The High Court examined the scheme of these Rules and pointed out that even though the writ petitions before it concerned Schedule I to the Rules relating to the boys  institutions yet the principle was enqually 1105 applicable for Schedule II relating to the girls  institutions since the hierarchy of the grades in both the Schedules is the same
The lowest grade in Schedule I is Group F 
Item 1a of Group F is the post of Headmaster
Secondary School for boys
It is to be filled 50 per cent by direct recruitment and 50 per cent by promotion from the lower grade
The minimum qualifications are prescribed in column 4 and the post or posts from which promotion is to be made is shown in column 5 which is teachers in grade 1 11 and teachers grade I in Sections C D E F of the Schedule appended to the Rajasthan Education Subordinate Service Rules 1971
The next higher grade is Group E  which are posts of Headmaster Higher Secondary School for boys under item 1a to be filled 100 per cent by promotion from Group F  posts
The minimum qualification and experience required for this grade is Master s degree in addition to those prescribed for Headmasters Secondary School
Accord ingly only such of the Headmasters of Secondary School for boys belonging to Group F  who possess Master s degree in addition to the qualifications prescribed for that post are eligible for promotion as Headmaster Higher Secondary School for boys under Groups E 
The next higher grade is Group D  Section II of Schedule I and in item 1a there under are the posts of Principal Higher Secondary SchoolBSTCRTC Boys
These posts are to be filled 100 per cent by promotion from Groups E  and F  posts and the qualifications prescribed are the same as those for Headmaster of Higher Secondary School
Above this grade is Group D  Section I in item 1 of which is the post of Inspector of Schools which is to be filled 100 per cent by promotion from Group D  Section II posts
Then comes Group C  above which is Group B  which is the highest post of Joint Director of Education Range in Schedule I to be filled 100 per cent by promotion from Group C 
From the hierarchy of posts in Schedule I indicated above it is clear that the lowest grade of Group F  in Schedule I is filled 50 per cent by direct recruitment and 50 per cent by promotion while all the higher grades are filled entirely by promotion from the next lower grade except for Group D 
Section II which is filled by promotion for Groups E and F taken together
In other words the posts of Principal
Higher Secondary School in Group D  Section II are filled 100 per cent by promotion from Groups E and F together that is Headmaster Higher Secondary School 1106 and Headmaster Secondary School and those from Group F are considered only if they have the minimum qualifications prescribed for appointment to Group D  Section II
It is this clubbing of Groups E  and F  for promotion to Group D  Section II which was successfully challenged in the writ petitions filed before the High Court
The High Court has taken the view that clubbing of Groups F and E  together for promotion to the next higher post in Group D  section II amounts to clubbing of unequals and the Rule to this extent is invalid
The contention of the State has been rejected wherein it was indicated that a common seniority list was prepared of persons in Groups E  and F with those in Group E  being placed en bloc above those in Group F  that persons in Group F  were considered for promotion only after every one in Group E  had been considered and vacancies remained to be filled on account of suitable persons not being found in Group E  to fill those vacancies persons form Group F were considered only then subject to the prescribed qualifications for appointment to Group D 
Section II and the nature of functions of both the categories of Headmasters being similar their equation for this purpose was considered to be reasonable
The High Court did not accept this as sufficient justification to consider persons in Group F  for filling the remaining vacancies in Group D  Section II even when the remaining persons of Group E  were not found suitable for promotion
The High Court also appears to have overlooked the fact that all posts in Group D  Section II being required to be filled by promotion there was no other avenue to fill the remaining vacancies in Group Section II except the next lower cadre of Group F for want of adequate number of suitable person in Group E  for appointment to Group D 
The question really is  Whether the policy adopted by the State Government of first considering all the persons in Groups E  for promotion to Group D  Section II and promoting all found suitable and then only considering the qualified persons in Group F for appointment to the remaining vacancies for want of suitable persons in Group E  for promotion when the posts in Group D  Section II are required to be filled 100 per cent by promotion is invalid for any reason It is in this perspective that the dispute between members of Group E  and Group F  of the Service raised in the present case has to be decided
Obviously the grievance of members of Group E  can arise only if those in Group F  are 1107 treated on par with Group E  which is a higher grade or members of Group F  get appointments by promotion in Group D  which would otherwise have gone to those in Group E  but for the rule making Group F also eligible for promotion to Group D  by clubbing Groups E  and F  together for this purpose
There can be no legitimate grievance to members of Group E  in case vacancies remain to be filled in Group D  which can be filled only by promotion after every one in Group E  has been considered and only those not found fit for promotion therein are left unpromoted
The appointment to the remaining vacancies by promotion of members of Group P the next lower cadre possessing the prescribed qualifications and found suitable for promotion cannot result in inequality or injustice to those remaining in Group E  on account of their unsuitability
There is no other available avenue to fill the remaining posts in Group D  by promotion
There can be no legitimate claim of an unsuitable person for promotion to provide foundation for the challenge so made
It is for this reason that we required the State Government to place before us the material indicating the procedure followed for making the selection for promotion to the posts in Group D  Section II from Groups E  and F  of the Service
It has been shown with reference to full particulars that it is only the vacancies in Group D  remaining unfilled for want of suitable persons in Group E  which are filled by appointment of persons found suitable in Group F  who possess the prescribed qualifications and are also found outstanding
It does appear to be the only feasible manner in which the remaining vacancies in Group D  can be fined since promotion from the services is the only prescribed mode of filling of the posts in Group D 
Moreover the nature of duties and functions of the post of Principal Higher Secondary School in Group D  Section II is similar to that of Headmaster of a Higher Secondary School or Secondary School which are the posts held by persons in Groups E  and F respectively
That apart an unsuitable person in Group E  cannot claim placement above a qualified and suitable person in Group F  when the nature of duties of both are alike and so is that of the higher post in Group D  In order to assure ourselves that the principle adopted was fair and reasonable and so was its application in making the promotions to Group D  Section II from Groups E  and F we also directed the filing of an affidavit by a senior officer giving all the relevant particulars in addition to 1108 production of a chart which would enable comparison of persons in Group E  who were not found suitable for promotion to Group D  Section II with those in Group F  who were found fit for promotion on the basis of merit
On a scrutiny of these particulars along with the facts stated in the affidavit of MR Advani Deputy Legal Remembrancer Education Department Government of Rajasthan
We are satisfied that the principle adopted and followed was fair and reasonable and does not result in any injustice to the persons not found fit in Group E  for promotion
The affidavit of MR Advani shows that the duties of the office of Principal as well as Headmaster are of a similar nature and there is no qualitative difference in the duties performed by persons belonging to Groups E  and F 
It has also been stated that the Reporting Officer for the purpose of annual performance appraisal of persons in Group E  is the Principal and their Reviewing Officer is the District Education Officer while in the case of persons belonging to Group F  the Reporting Officer is the District Education Officer and the Reviewing Officer is the Deputy DirectorJoint Director
Prior to introduction of 10  2 Scheme the Reporting Officer for Group E  persons also was the District Education Officer and the Reviewing Officer was the Deputy DirectorJoint Director
This shows that the standard of their annual performance appraisal is also on par being made in this manner
Paras 10 and 11 of this affidavit dated 15101992 read as under 10It is respectfully submitted that pursuant to the subrule 11 of Rule 25 of the 1970 Rules while considering the merits of candidates the Departmental Promotion Committee first considered all the candidates of category E  who were in the zone of consideration and every candidate who had 5 or more very good  or outstanding  report and not having any adverse report was selected on merit
11After considering all the candidates of category E  the posts which were left unfilled were filled by considering the merits of candidates of category F 
While considering the merits of category F  candidates first of all candidates having 5 or more outstanding  and very good  ACR were selected
If the number of vacancies are less the merit list 1109 is prepared on the basis of those having 6 or an 7 ACRs to be outstanding  or very good 
For the year 1989 90 as sufficient vacancies were available in D 11 category all E and F category candidates were promoted who had required minimum merit Along with the particulars relating to all the candidates from Groups E  and F considered for promotion to Group D 
Section II an additional affidavit dated 21101992 was filed on behalf of the State Government by BC Bairathi wherein para 4 is as under 4
It is respectfully submitted that it is evident from the statement that all candidates of category E  who were in the zone of consideration and had 5 or more outstanding  and very good  reports and did not have any adverse reports have been selected on merits
The leftout candidates in group E  are only those who had less than 5 outstanding or verygood reports and they could not have been selected on merits pursuant to the express provisions of Rule 2511 of the 1970 Rules
It is also evident from the said statements that all candidates of category F who have been appointed had 5 or more outstanding and very good ACRs and none of them had less than 5 outstanding  or very good  ACRs
 The Explanation to Rule 2511 as amended vide Notification dated 30111991 prescribes that for such promotion no one having less than 5 outstandingvery good annual confidential reports in the immediate preceding 7 years is to be considered fit for promotion
The facts clearly show that every one in Group E  satisfying this criterion has been selected and those not found suitable in Group E  are persons who do not satisfy this criterion
Vacancies remained in Group D 
Section II which could not therefore be filled from persons in Group E  since suitable persons amongst them were not available
The only manner in which the remaining vacancies in Group D  Section II could be filled since all vacancies were to be filled by promotion according to the Rules was by promoting the outstanding persons from Group F The duties and functions of persons in Groups E  and F being of a similar nature consideration of persons 1110 from Group F  for filling the remaining vacancies in this situation was neither unreasonable nor arbitrary but the only available mode left for filling the remaining vacancies
It also appears that the outstanding persons selected from Group F  were qualitatively found superior to those remaining unselected in Group E  particularly in view of the express requirement of the Explanation to Rule 2511 which the unsuitable persons in Group E  did not satisfy
In Chiranjit Lal Chowdhuri vs The Union of India and Others   while dealing with the right to equality Fazil Ali
J indicated that a doctrinaire approach is not warranted and a passage from Constitutional Law by Prof Willis was cited as a correct proposition of the principle underlying this guarantee where in it was stated as under  
Mathematical nicety and perfect equality are not required
Similarity not identity of treatment is enough
If any state of facts can reasonably be conceived to sustain a classification the existence of that state of facts must be assumed
One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis p877 In Mohd Hanif Quareshi  Others vs The State of Bihar   while dealing with the meaning scope and effect of Article 14 it was reiterated that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge matters of common report the history of the times and may assumed every state of facts which can be conceived existing at the time of legislation 
The validity of the impugned Rules has to be adjudged in this background
The challenge to the validity upheld by the High Court was on the only ground that clubbing of Groups E  and F  for promotion to Group D  Section II was invalid since unequals had been equated for the purpose of promotion
From the undisputed facts it is clear that the total number of posts in Group D  Section II is nearly the same as the total number of posts in Group E  while the total number of posts in Group F  is about five times thereof
Since appointment to Group D  Section II is 100 per cent by promotion
It is a distinct possibility as in the present case that the requisite number of suitable candidates from Group E  may 1111 not be available to fill all the existing vacancies in Group D  Section II
In such a situation all appointments to Group D  Section II posts being by promotion the only available option is to fill the remaining vacancies by selection of outstanding persons from Group F
This is more so because the nature of duties and functions of the posts in Groups E  and F  is similar and so is that of the posts in Group D  Section II
In such a situation the provision made
in the Rules for promotion to Group D 
Section II from Group E  as well as Group F  does not in any manner offend the guarantee of equality in the Constitution
The manner in which the Rule is worked that is consideration first of all persons in Group E  for promotion to Group D  Section II and moving to Group F  if necessary for filling only the remaining vacancies by selecting outstanding amongst them who satisfy the requirement of Explanation to Rule ensures fairness lo all while also maintaining efficiency in the administration
If the need arises to look to Group F  for filling the remaining vacancies on account of want of suitable persons in Group E  those found unsuitable in Group E  cannot complain of discrimination if persons duly qualified and more suitable performing similar functions are selected since the unsuitable left out in Group E  are excluded from the competition on the ground of unsuitability and cease to remain contenders for the remaining posts
These provisions in the Rules are therefore not in any manner violative of Articles 14 or 16 of the Constitution
Reference may also be made to Md Usman  Ors
vs State of Andhra Pradesh  Ors
 1971 Supp
SCR 549 wherein clubbing of UDCs and LDCs for recruitment to posts of Grade II Sub Registrars was upheld as valid
The contention there was that the rule permitting the clubbing violated Article 14 of the Constitution by treating unequals as equals
The High Court struck down the rule as violative of Article 14 but this Court reversed that decision and upheld validity of the rule
It was held by this Court that the promotion based on the principles of seniority cum merit even though the position of UDC is superior to that of LDC satisfies the guarantee of equality
In the present case this decision applies with greater force since the selection from Group F  is based purely on merit and it is only the outstanding from the Group who are promoted
1112 For the aforesaid reasons we allow the appeals and set aside the impugned judgment of the High Court with the result that the writ petitions filed in the High Court stand dismissed
No costs
RP Appeals allowed


Summary:
The petitioner applicants were recruited by the Railways on ad hoc basis as Assistant Divisional Medical Officers between 1968 and 1984
Though UPSC recruited candidates on regular basis from time to time either due to non availability of number of candidates or non joining of selected candidates vacancies remained and persons like the petitioners continued in such vacancies on ad hoc basis
The petitioners riled Writ Petitions before this Court for regularisation of their services
By orders of this Court the services of the petitioners have already been regularised
The present application is for fixing the seniority of the Writ Petitioners whose services were regularised
Disposing of the application this Court HELD 1
Since the petitioner applicants are admittedly not regularly appointed through the UPSC according to the rules but have been directed to be regularised by following the procedure laid down by this Court it is obvious that they are not appointed to their posts according to the rules
Under no circumstances therefore they fall within the scope of guidelines in Direct Recruit Class II Engineering Officers Association s case
The expression in accordance with the rules  or according to rules used in the said guidelines means the rules of recruitment and not the special procedure laid down by this Court The petitioner applicants thus fall in an altogether different category
Therefore a procedure for fixing their seniority has to be evolved
That procedure cannot be in violation of the guidelines laid down in Direct Recruit Class II Engineering Officers  2 Association s case
Further the seniority given to the petitioner applicants will have to be below the seniority of the outsiders directly recruited through the UPSC as well as below that of the directly recruited erstwhile ad hoc Medical Officers
8C F Direct Recruit Class II Engineering Officers Association  Ors
vs State of Maharashtra  Ors
   referred to
Of late this Court has been witnessing a constant violation of the recruitment rules and a scant respect for the Constitutional provisions requiring recruitment to the services through the Public Service Commission
Since this Court has in some cases permitted regularisation of the irregularly recruited employees some Governments and authorities been increasingly resorting to irregular recruitments
The result has been that the recruitment rules and the Public Service Commissions have been kept In cold storage and candidates dictated by various considerations an being recruited as a matter of course
9E G 22
What is further in the present case some of those like the petitioner applicants who were initially recruited on ad hoc basis have themselves and taken pains to appear for the tests before the UPSC and have enrolled themselves through regular channel
There are three classes of employees viz the outside direct recruits the in service direct recruits and the ad hoc employees like the petitioner applicants who were regularised through the Court s order
The direction given In Dr Rawani s case for creation of supernumerary posts has to be confined to the special facts of that case and cannot be extended to other cases
In any case this Court should not give any such direction to the Railways
If however the Railways decide to follow that course they can do so and nothing prevents them from doing it
This Court would rather refrain from creating a precedent by giving such directions
9G H 10A D Dr AK Jain  Ors
vs Union of India  Ors
1987 Sapp
SCC 497 and Dr PP C Rawani  Ors etc
vs Union of India  Ors
 JT 1991 6 534 referred to
The seniority of the direct recruits both outsiders and insiders should be determined according to the dates of their regular appointment through the UPSC and the petitioner applicants should be placed in the seniority list after those direct recruits who are recruited till date
Among 3 themselves their seniority will be governed by the dates of their initial appointment 10E