Civil Appeal No 2183 of 1984
From the Judgment and Order dated 2831984 of the Kerala High Court in W P No 131 of 1982
M K Ramamurthi V J Francis and N M Popli for the Appellants
G D Gupta Ms Halida Khatun Subba Rao R N From the Judgment and Order dated 2831984 of the Kerala High Court in W P No 131 of 1982
Poddar Ms Subhadra Ms Alka B B Tawaklcy and Mrs Urmila Kapur for the Respondents
The Judgment of the Court Was delivered by DESAI J
Chagrined by the failure of the attempt to pressurise junior engineers to boycott the examination and further irritated by the holding of the examination the appellants have knocked at the 883 doors of this Court putting forth utterly unsustainable contentions
Appellants are junior engineers in the Telegraph Wing of the Post  Telegraph Department
The next avenue of promotion for a Junior Engineer is the post of Assistant Engineer
Promotions were governed by Telegraphic Engineering Service Class Il Recruitment Rules 1966  1966 Rules  for short 
By these rules Telegraphic Engineering Service  Class Il  was formed
The Rules were to apply to posts as specified in Clause I of the Schedule which specified the post of Assistant Engineer and other equivalent posts having allied designations
Clause I in Appendix I to the 1966 Rules provides that recruitment to the service shall be entirely by promotion on the basis of selection of Junior Engineers through a qualifying departmental examination
An approved list shall he  prepared by a duly constituted Departmental Promotion Committee by selection from amongst the officials who qualifying the departmental examination
Sub Clause 4 provided that the departmental qualifying examination shall be open to Junior Engineers who fulfill amongst others the condition specified therein
It reads as under Those recruited and absorbed in that grade against the vacancies of a year ordinarily not less than five years prior to the year of announcement of the said examination
These rules were in force till superseded by Telegraphic Engineering Service Group Posts Recruitment Rules 1981  1981 Rules  for short enacted in exercise of the power conferred by the proviso to Article 309 of the Constitution with effect from May 7 1981
The controversy centers round the Note appended to sub clause 4 of Appendix I of 1981 Rules which reads as under 40 There shall be normally one examination consisting of two parts called Qualifying cum Competitive Examination for promotion to the Service and shall be held at least once in a calendar year in the manner and in accordance with the syllabus prescribed in Appendix Ill to these rules
Note After the commencement of these rules the first two examinations shall only be competitive for which the eligibility shall be restricted to only those officers who have 884 already qualified in the Departmental Qualifying Examination held before the commencement of these rules
 Appellants were recruited as Junior Engineers in the year 1973
ln other words they belong to 1973 batch
Their grievance is that they have completed five years of service which conferred on them eligibility to appear at an examination which was to be held under 1966 Rules
1966 Rules contemplated only one examination styled as Qualifying Departmental Examination
1981 Rules which superseded 1966 Rules provide for one examination to be held in two parts namely Qualifying Examination and Competitive Examination
Before one is permitted to take a Competitive Examination he has to clear Qualifying Examination
In short if one has not qualified at the Qualifying Examination he can not take the Competitive Examination
The appellants  grievance is that from 1973 to 1982 or to be specific after 1978 when they became eligible to take Qualifying Examination no Qualifying Examination was held till May 7 1981 when 1966 Rules were superseded by 1981 Rules which introduced the concept of Competitive Examination which could alone be taken after in qualifying the Qualifying Examination and for a period of two years as per the Note appended to clause 4 Qualifying Examination was not to be held
The contention is that this is an invidious manner of denying them the opportunity to take the examination and thereby deny them equality of opportunity in the matter of promotion
Appellants accordingly filed OP No 571481 under article 226 of the Constitution in the High Court of Kerala impugning the constitutionality of the Note appended to clause 4 of Appendix I to 1981 Rule
A learned Single Judge of the High Court before whom the petition came up for hearing held that the policy reflected in the Note appended to clause 4 of Appendix I to 1981 Rules is irrational as it has no reasonable connection with the needs of the office or the object sought to be attained
A direction was given that the Note shall be applied to the appellants
By the judgment rendered on March 9 1982 the learned Judge gave a further direction that the department can either hold the over due qualifying examination of 1980 or it can hold the qualifying cum competitive examination but it must be done forthwith so that the appellant who were petitioners before the High Court may not be altogether 885 excluded from the examination or examinations to be held
The respondents to the writ petition the Union of India and others filed Writ Appeal No 131 of 1982 which came up before a Division Bench of the High Court
The Division Bench disagreed with the learned Single Judge observing that the Note to Rule 4 is not ultra vires but this was subjects to the further directions given by the Division Bench
Taking note of the fact that in the meantime a competitive examination was conducted a direction was given that the result be published and the candidates who are declared successful in the examination should be appointed to 33 13 of the vacancies which arose between May 7 1981 and May 7 19 82A further direction was given that the second competitive examination contemplated in note to clause 4 must be conducted after a qualifying examination as envisaged in 1966 andor 1981 Rules is conducted within a period of six months from the date of the judgment and all those examinees found declared successful at the qualifying examination be permitted to take the competitive examination which must be held within six months from the date of the result of the earlier examination
A direction was given that the candidates declared successful at the competitive examination be appointed to 33 13 quota of posts in the vacancies that arose between May 7 1982 and May 7 1983
There was some further directions which are hardly material for the present purpose
The writ appeal was disposed of in these terms
Original petitioners aggrieved by the decision of Division Bench have filed this appeal by special leave
By sheer passage of time this appeal and even the main petition have become infructuous
Even in service jurisprudence the clock of history sometimes cannot be put back and even if it is found that the respondents have committed an error in implementing the statutory rules no relief can be granted
This is one such case
Appellants are Junior Engineers of the 1973 batch belonging to the service styled as Telegraphic Engineering Service Class II re designated as Telegraphic Engineering Service Group Posts
Appellants as Junior Engineers can look forward to become Assistant Engineers by promotion
Indisputably the recruitment to the post of Assistant Engineer in the service is by promotion from 886 the cadre of Junior Engineers
Under the 1966 Rules Junior Engineers would become eligible for promotion on qualifying at a qualifying examination
The eligibility criterion for taking the examination was service of five years
Appellants who are Junior Engineers of 1973 batch became eligible for taking the examination that may be held in 1978 and onwards
Once in November 1980 and another in January 1981 programme of holding qualifying examination where 1973 recruits could have appeared was announced but subsequently cancelled and on May 7 1981 1966 Rules were superseded by 1981 Rules
1981 Rules envisaged a qualifying cum competitive examination
Eligibility criterion for taking competitive examination was successful clearance of qualifying examination
Therefore unless a qualifying examination is held one would have no chance to take competitive examination
For 1973 recruits no qualifying examination is held
In 1981 Rules by a note appended to clause 4 of Appendix 1 it was provided that the next two examinations under 1981 Rules would only be competitive examination
The sum total of these developments would certainly come in the way of appeallants who are of 1973 batch from taking competitive examination and unless they qualify at that examination they would not be eligible for promotion to the post of Assistant Engineer
In 1982 a competitive examination was held
Junior Engineers who were recruited prior to 1973 and who had qualified at the qualifying examination held in August 1980 could appear at this competitive examination
As Junior Engineers of 1973 and sub sequent batches were not admitted to qualifying examination held in 1982 and as no qualifying examination was held in November 1980 and January 1981 and as two examinations under the 1981 Rules were only to be competitive examination certainly they have been denied an opportunity to take the examination
Appellants who similarly situated persons tried extra constitutional methods to pressurise the powers that be from holding the qualifying examination and subsequently from declaring its results
This Court had to interpose to put down such pressure tactics by a mandatory direction given at an interim stage that the results of the examination already held must be declared
We are informed that the results have been declared
887 Mrs Urmila Kapoor learned counsel represented one such successful candidate
Even though the results are declared the follow up action of promotion and appointment has not been taken
We propose to give appropriate directions in this matter
In the backdrop of these facts can it be said that the appelIants have been victimised or subjected to discriminatory treatment or have been denied equality of opportunity in the matter of pro motion
Appellants do not question the legality of rules which prescribe a qualifying cum competitive examination for becoming eligible for promotion to the post of Assistant Engineer
Their grievance is that note 4 appended to clause I introduces discrimination In that Junior Engineers of 1972 and prior batches will alone be able if they had cleared the qualifying examination to take the competitive examination which would be held under 1981 Rules and as only the competitive examination was to be held Junior Engineers of 1973 and subsequent batches even if they have put in five years of qualifying service would be denied an opportunity to i take the examination
The learned Single Judge of the High Court held the note to be ultra vires
We find it difficult to agree with the view of the learned Single Judge in this behalf
However the Division Bench has clearly opined that the note is not ultra vires
Mr Ramamurthy learned counsel for the appellants contended that the note inheres the pernicious tendency of denying equality of opportunity in the matter of taking examination because it permits the department to provide a bottleneck coming in the way of Junior Engineers of the 1973 batch from taking the competitive examination by not holding the qualifying examination
We see nothing wrong in the policy disclosed by the note
lt was pointed out that by 1982 nearly 7 000 Junior Engineers had become eligible for taking competitive examination
There was some dispute about the figure but we are prepared to accept the figure as given by Mr Ramamurthy learned counsel that 4 000 Junior Engineers of pre  1973 batch were qualified for taking competitive examination
Mr Ramamurthy contended that if the eligibility criterion is five years of service DO artificial road block could be created so as to come in the way of such qualified Junior Engineers from taking the examination
As an additional string to the bow it was submitted that if the purpose of holding a competitive examination is to select best all eligible persons must be permitted to take the examination and ll 888 no artificial barrier need to be created
It was submitted that not holding of the qualifying examination creates such an impermissible road block in the way of Junior Engineers of 1973 and subsequent batches from taking competitive examination
If by 1982 more than 4 000 Junior Engineers of pre 1973 batch had become eligible to take the examination and if the accumulated number of vacancies was around 300 it is difficult to accept the submission of Mr Ramamurthy that everyone who has just put in five years of service must be permitted to take the examination
It is a known principle of service jurisprudence that even though mini mum eligibility criterion is fixed enabling one to take the examination yet the examination can be confined on a rational basis to recruits upto a certain number of years
That constitutes recognition of long experience and not permitting some irate junior to score a march
If by 1982 nearly 4 000 Junior Engineers of pre 1973 batches had become eligible for taking competitive examination the department would be perfectly justified in keeping the examination open only to persons who have put in such long service and leaving others to wait for the next examination
If for taking examination this aspect introduces classification it is based on rational and intelligible differentia which has a nexus to the object sought to be achieved
By the note for a period of two years only pre 1973 Junior Engineers who had cleared qualifying examination were given a chance to take competitive examination
If this introduces a classification it is valid
It caters to a well known situation in service jurisprudence that there must be some ratio of candidates to vacancies
And it is based on long experience as a rational basis for classification
Viewed from this angle we find nothing in the policy underlying the note to rule 4 as being either discriminatory or arbitrary or denying equality of opportunity in the matter of promotion
It had the desired effect of not having a glutt of Junior Engineers taking examination compared to fewer number of vacancies
Length and experience were given recognition by the note The promotion can be thus by stages exposing the promotional avenue gradually to persons having longer experience
This seems to be the policy underlying the note and we see nothing improper or unconstitutional in it
However the situation has materially changed
More than 4 years elapsed sine the note has appeared One examination is 889 a ready taken
Even Junior Engineers of 1973 batch have by now put in more than 12 years of service
Therefore while upholding the note and consequently rejection the appeal we propose to give the following directions to remove the irritants i Successful candidates of 1982 competitive examination results of which have been declared pursuant to the directions of this Court must be given promotion as Assistant Engineer within a period of two months from today
ii The next qualifying examination permitting all those who are eligible under the rules to appear at it must be held latest by July 31 1985 and the results be declared by September 30 1985
iii The next competitive examination must be held by December 31 1985 and the results by declared by February 28 1986
iv Consequent promotions keeping in view the vacancies available must be given within a period of three months after the result is declared
This appeal is disposed of in these terms with no order as to costs M L A Appeal dismissed


Summary:
Clause 1 in Appendix I to the Telegraphic Engineering Service Class II Recruitment Rules 1966 1966 Rules for short provided that promotion of a Junior Engineer to the post of Assistant Engineer shall be entirely by promotion on the basis of selection of Junior Engineers through a qualifying departmental examination
Sub clause 1 provided that the departmental qualifying examination shall be open to Junior Engineers who were recruited and absorbed in that grade against the vacancies of a year ordinarily not less than five years prior to the year of announcement of the said examination
Sub clause 4 of Appendix I to the Telegraphic Engineering Service Group Posts Recruitment Rules 1981 1981 Rules for short which superseded the 1966 Rules envisaged a qualifying cum competitive examination for promotion to the post of Assistant Engineers
and the Note appended to sub cl
4 provides that for a period of 2 years after the commencement of the 1981 Rules the first two examinations shall only be competitive for which the eligibility shall be restricted to only those officers who have already qualified in the Departmental Qualifying Examination held before the commencement of these Rules
 The appellantsJunior Engineers who were recruited in the year 1973 challenged in the High Court the constitutionality of the Note appended lo clause 4 of Appendix I to 1981 Rule 5 on the ground that note 4 appended to clause I introduces discrimination in that Junior Engineers Or 1972 and prior batches will alone be able if they had cleared the qualifying examination to take the competitive examination which would be held under 1981 Rules and as only the competitive examination was to be held Junior Engineers of 1973 and subsequent batches even if they have put in five years of qualifying service would be denied an opportunity to take the examination and that this is an invidious manner of denying them the opportunity to take the examination and thereby deny them equality of opportunity in the matter of promotion
The learned Single Judge held that the Note to clause 4 of Appendix I to the 1981 Rules was ultra vires
On appeal by the respondent Union of India the Division Bench of the High Court held that the Note was not ultra Vires
882 Dismissing the appeal by the appellants the Court  HELD I By sheer passage of time this appeal and even the main petition have become infractions
Even in service jurisprudence the clock of history sometimes cannot be put back and even if it is found that the respondents have committed an error in implementing the statutory rules no relief can be granted
This is one such case
885F G 2 If by 1982 nearly 4000 Junior Engineers of pre 1973 batches had become eligible for taking competitive examination the department would be perfectly justified in keeping the examination open only to persons who have put in such long service and leaving others to wait for the next examination
If for taking examination this aspect introduces classification it is based on rational and intelligible differentia which has a nexus to the object sought to be achieved
By the note for a period of two years only pre 1973 Junior Engineers who had cleared qualifying examination were given a chance to take competitive examination
If this introduces a classification it is valid
It caters to a well known situation in service jurisprudence that there must be some ratio of candidates to vacancies
And it is based on long experience as a rational basis for classification
Viewed from this angle there is nothing in the policy underlying the note to rule 43 as being either discriminatory or arbitrary or denying equality of opportunity in the matter of promotion
lt had the desired effect of not having glutt of Junior Engineers taking examination compared to fewer number of vacancies
Length and experience were given recognition by the note
The promotion can be thus by stages exposing the promotion l avenue gradually to persons having longer experience
This seems to be the policy underlying the note and therefore there is nothing improper or unconstitutional in it
888D G