JUDGMENT [ENTITY], J.
1. The question involved in this Writ Appeal is as to whether the prescription of a ratio of 1:3 between diplomates and graduates for promotion to the post of Managers, Grade-I in the A.P. Dairy Development Co-operative Federation is discriminatory and therefore violative of [SECTION] of the [ACT]. The appellants are graduate officers who want to sustain the ratio whereas the 1st respondent is an association of diploma-holders in service, who succeeded in the Writ Petition assailing the ratio. We will refer to the parties as they appeared in [CASE NUMBER] which the learned single Judge has allowed.
2. Petitioner represented non-graduate employees of Dairy Development Co-operative Federation Limited (Indian Dairy Diploma-holders Welfare Association). Respondents 2 to 5 were graduate employees of the same Federation. The service rules provided for the ratio of 1:3 between Diploma- holders and graduates for promotion as Grade-I officers. The main contention urged by petitioner was that preference in favour of graduates, only because of their educational qualifications is unreasonable and therefore discriminatory. Petitioner submitted further that their longer service and seniority in the feeder category were ignored in giving preference to juniors for promotion for the only reason of their higher educational attainments. Reference was made to the decision of the Supreme Court in [ENTITY] v. Union of India, . [ENTITY] v. Union of India, 1987(2) Admn. Tribunal Reports 172., and [PRECEDENT] in support of the submission that preference based entirely on educational qualifications and in providing a quota for graduates was discriminatory and violative of [SECTION] of the [ACT].
3. Respondents contended that the distinction between graduates and Diploma-holders in the feeder category was not introduced for the first time, but was present in the service rules since their inception. They submitted further that there was no fusion of graduates and diploma-holders into a common category at any time, because separate seniority lists were being maintained in the feeder category. It was however admitted that the posts were inter-changeable and had common scales of salary. Respondents had urged before the learned single Judge that the decision in [ENTITY] ., [ENTITY], 1987(2) Admn. Tribunal Reports 172., or [PRECEDENT]., would apply only to cases where discrimination was practiced by providing a quota for the first time making an invidious distinction between persons included in a common stream and were equally qualified and eligible for promotion. They submitted that differential treatment of persons coming from different sources having different birth- marks should not be held to be discriminatory or violative of [SECTION] or [SECTION] of the [ACT].
4. The learned single Judge, on a consideration of the submission on either side, found that the quota was based entirely on a higher qualification possessed by persons who were otherwise equal and formed part of a common category of officers. Preference of juniors to seniors with longer service, who were also fit to hold a higher post was held to be discriminatory. Applying the principle in [ENTITY]'s case (1 supra), he held that the ratio of 1:3 for promotion as Manager, Grade-I of Indian Dairy Diploma-holders and degree holders and the further provision that in the cycle of every four vacancies the third vacancy alone need be filled up by a diplomate, in Procurement Department of Andhra Pradesh Dairy Development Corporation Limited, [ACT] are invalid and violative of [SECTION] and [SECTION] of the [ACT]. The respondents have appealed.
5. Sri [ENTITY], Counsel for the appellants (respondents in the Writ Petition) submitted that the learned single Judge erred in assuming that there has been a fusion of the two streams of diplomates and graduates into a common pool and that the ratio provided for differential treatment of juniors entirely on the basis of their higher educational attainments. He cited the decision of the Supreme Court in [PRECEDENT] holding that prescription of higher educational qualification for higher posts cannot be held to be discriminatory. He submitted that if that be the position, a provision to the effect that there shall be a larger representation for graduates in higher positions cannot be held to be discriminatory. He submitted further that the principle of [ENTITY] (1 supra) applies only to cases where there has been a complete fusion of officers coming from different sources into a common stock by obliteration of all individual marks of distinction. It was his submission that such a complete obliteration of differential qualities and the consequent fusion had not taken place in the present case and therefore the principle in [ENTITY] (1 supra) or [ENTITY] (2 supra) or Punjab State Electricity Board (3 supra) cannot apply. He also submitted that the provision in the recruitment regulations providing for directing recruitment of 75% graduates and promotion of 25% from services was altered almost simultaneously substituting recruitment of only 25% of graduates, whereas the promotion quota was enhanced to 75%. The consequence of this alteration in the service Regulations, it is stated, was that there would be larger number of undergraduates in the feeder category with lesser chances for graduates to aspire for higher positions in service. In the light of the above alteration in the rule for appointment by direct recruitment and promotion to the feeder category of Managers, Grade-II, a corresponding provision prescribing an equal but reverse ratio so as to maintain the equilibrium in the services of the Corporation between experience and higher educational qualifications is eminently just and proper. He submitted that if higher educational qualifications for promotion is to be totally discarded, administrative efficiency and quality of service will definitely suffer in the long run.
6. Sri [ENTITY], Counsel appearing for the Writ Petitioner urged that there is no escape from the propositions laid down by the Supreme Court in [ENTITY] (1 supra) case. He submitted further that the decision of the Supreme Court in [ENTITY], ., cannot apply, because that considered only the question whether the prescription of graduation as a basic qualification for promotion to higher post of Executive Engineer in Jammu and Kashmir Public Works Service was justifiable or not. The court held that such a prescription could not be considered as discriminatory, because equals were not treated unequally and seniors who were otherwise fit were not denied promotion in due time as happened in [ENTITY] (1 supra) case. He also submitted that the provisions contained in the service regulations requiring the diploma holders to have a longer period of service to enable them to be considered for promotion, sufficiently compensates for any deficiency in educational qualifications ; and such being the case, there is no occasion for this court to interfere in appeal with the judgment of the learned single Judge.
7. Counsel for the petitioner submitted that separate seniority lists of graduates and diplomates were maintained only for the purpose of working out the ratio and not otherwise. He therefore refutes the submission that there has not been complete fusion of diplomates and graduates into a common pool in the feeder category. He submits that for the purpose of promotion, the seniority of persons in feeder category could have been easily ascertained by length of service, and a junior in that common pool was to be preferred only due to his graduation on the basis of the impugned ratio, there is no occasion for interference with the judgment of the learned single judge.
8. We are of the opinion that the intention of the rule makers was to see that there had to be a satisfactory combination of non-graduates as well as graduates with seniority and concomitant experience with higher educational attainments in the higher echelons of the services of the Corporation. The provision for preference of graduates was not introduced for the first time immediately prior to the challenge which petitioners had raised in the Writ Petition. The provision for some preference to graduates was part of the scheme of the rules. Such a preference in the matter of promotions to higher categories of posts cannot, by itself, be condemned as discriminatory and violative of constitutional guarantees. The vice will be present only when persons belonging to a common category are given preference, not on the basis of seniority and experience, but entirely on the basis of educational qualifications which have nothing to do with efficiency in service. Even this principle can apply only if it is found that there has been a fusion of officers coming from different streams into one pool obliterating all distinctions between them.
9. We have to consider the controversy involved in this case in the context of the provisions contained in the service regulations which had been in existence for some considerable time. We have also to consider the impact of any decision of this court negativing any preference in favour of graduates in the matter of promotions. Viewed in this context, what we find is an anxiety on the part of the employer to lay greater emphasis on maintaining the balance between experience gained by larger years of service in the organisation and higher educational attainments which may indicate better intellectual capabilities as the employees move up the ladder of promotions. A policy of that nature cannot be faulted in the ground of discrimination.
10. Since there was considerable debate on this aspect of the case, we called for the existing service regulations, seniority lists of Grade-II Managers and the comparative figures of Grade-I Managers during 1985 and 1992. These details, which parties have produced, do bear out our assumption that the diplomates cannot justifiably complain about discrimination in promotion as Grade-I Managers.
11. The relevant portions of the service regulations of the Federation which we extract hereunder is important.
PROCESSING SUPERVISORS 100% by Direct Recruitment (Rs. 1100-2050) Qualification : Should possess I.D.D. | | Manager, Grade-II (Rs. 1550-3050) | Asst. Dairy Manager (Rs. 1550-3050) By Promotion :
75% : Minimum 5 years as Field Supervisor/Processing Supervisor or its equivalent Categories. Should have passed I.D.D. By Promotion : 75% :
Must possess 5 years experience as Processing Supervisor and should possess I.D.D. By Direct Recruitment :25% Must be a Degree holder in B.Sc (DT) of 4 years duration offered by recognised University. Alternatively must be a Graduate in Veterinary Science with M.V.Sc. or M.Sc. in Dairy Sc.
By Direct : 25% Recruitment Must be a Degree holder in B.Sc. (DT) of 4 years duration offered by Recog. University.
Alternatively must be a graduate of Veterinary Science with M.V.Sc.or M.Sc. in Dairy Sc.
| | Manager, Grade I (Rs. 1980-3500) | Dairy Manager (Rs. 1980-3500) By promotion & Direct Minimum 5 years as Manager, Grade-II or recruitment, if necessary: its equivalent categories of B.V.Sc. or B.Sc. (Dairying) and 7years if I.D.D. By promotion and Direct recruitment, if necessary:
Minimum 5 years experience as Asst. Dairy Manager for Degree-holders and 7 years for Diploma-holders.
The ratio of promotion between IDDs and Degree holders shall be 1:3 and in the cycle of every 4 vacancies, the 3rd vacancy should be filled by an I.D.D. Should possess a Degree or Diploma in Dairy Science.
It may be seen that 75% of the vacancies of Managers, Grade-II are to be filled up by promotion of persons who had passed, I.D.D. with minimum 5 years of experience as Field Supervisor/Processing Supervisor or equivalent categories and 25% of the vacancies are to be filled by direct recruitment of Degree holders. The methods of appointment of Managers, Grade-I are (1) by promotion and (2) direct recruitment if necessary. The qualifications are minimum 5 years experience as Manager, Grade-II or its equivalent categories for graduates and 7 years for Diplomates. The ratio if 1 : 3 between Diplomates and Degree- holders in a cycle of every four vacancies and earmarking the 3rd vacancy for Diplomates is also prescribed. According to us, this strikes the balance between the Diplomates and Graduates in the Managerial category. Greater emphasis is given to Diplomates by earmarking 75% of the vacancies to be filled up by promotion, whereas 25% alone has to be filled up by graduates by direct recruitment. That process is reversed for promotion as Manager, Grade-I with added emphasis of longer period of experience for Diplomates. In other words, emphasis is laid on greater experience for Diplomates, apparently to make good the deficiency in educational qualifications. It cannot be assumed that graduates and Diplomates shall always be treated as equal because both are treated as eligible for promotion. A longer period of experience to make up the short-fall in educational qualifications was countenanced even in [ENTITY] (1 supra) and [ENTITY] (2 supra). We also find that prescription of the same ratio in the reverse order for promotion as Manager, Grade-I as in the case of appointment of Manager, Grade-II equalises the chances of both the categories; and there should therefore be no justifiable complaint about discrimination.
12. We have seen the seniority list of Degree-holders and Diploma-holders in the category of Grade-II Managers or equivalent categories in the scale of Rs. 1550-3050 in the Federation as on today. There are 38 Degree-holders as against 69 Diplomates in position. Three of them were promotees. Six were appointed/promoted in 1978-79, 12 in 1980,10 in 1981,2 in 1982,3 in 1983,4 in 1986 and 1 in 1988.24 of the Diplomates were promoted as Grade-II Managers, during the period from 1975 to 1979,12 in 1980,4 in 1981,10 in 1986,1 in 1987, [SECTION] in 1988 and 2 in 1989. These details indicate that there has been a greater number of Diplomates among the Grade-II Managers during the period subsequent to 1986 (28 Diplomates against 5 graduates). The number of Diplomates and Graduates in position as in 1985 and 1992 also shows that the Diplomates have not lost by reasons of the working out of the ratio in view of the existing regulations. The number of Diplomates working as Grade-II Mangers in 1985 was 45. That increased to 69 in 1992. There were 54 graduates working as Grade-II Managers in 1985 and that number was reduced to 36 by 1992. In Grade-I Managers or equivalent posts in the scale of Rs. 1980-3500 there were 25 Diploma-holders in 1985. That increased to 27 by 1992, whereas the number of graduates was 55 in 1985 and 65 in 1992.
13. We are of the opinion that the service regulations as they stand at present fairly equalise the position between graduates and diplomates and there is no continuing discrimination which affects the chances of one or the other of the two categories for promotion as Grade-I Managers. On an examination of these statistical details, we are of the opinion that the ratio for promotion as Grade- I Managers or the altered ratio for appointment as Managers, Grade-II have not affected the prospects of either the diplomates or the graduates in any substantial measure. What they would have lost in one category, they could gain in the other. The prescription that three out of 4 posts of Managers, Grade-I shall be filled by graduates and the third shall be invariably filled up by a diplomate is of course prima facie discriminatory; but when we view that in the light of the other provisions in the service Regulations and the ratio for appointment of Managers, Grade-II, where the chances of appointment of diplomates has been enhanced three fold, we do not find any reason to interfere with the ratio.
14. Sri [ENTITY] brought to our notice the judgment dt. 15-7-1987 in [CASE NUMBER], whereby this court has struck downa similar provision prescribing a ratio for promotion to the posts of Regional Managers. The concerned rule provided that there shall be a ratio of 1: 4 between diploma-holders and graduates. There was a further provision that graduates with 3 years of service and diplomates with 5 years of service as Manager, Grade-I alone would be entitled to be promoted. This court set aside not only the ratio, but also the prescription of additional service for non-graduates as the basic qualification. If higher educational qualification is relevant, necessary and desirable, any decision which may result in the gradual obliteration of that category from higher posts in the service of the federation will not be congenial to the interests of the service of the Corporation.
15. In this view, we hold that the prescription of the ratio of 1:3 between diplomates and graduates for promotion as Managers, Grade-I, is not discriminatory, because such prescription operates among persons who had not been fused into one common category effacing the individual characteristics of each of them, even though they draw the same salary scale and also hold inter-changeable posts. For all practical purposes, they have been kept as two separate categories. They are required to have different periods of service to qualify them for promotion. Above all, the diplomates who have had and still continue to have the advantage of 75%: 25% for entry into the feeder category cannot reasonably complain when the ratio is reversed for a higher post. [SECTION] of the [ACT] does not enjoin all advantages to one category alone. It shall not be "the head you lose and the tail I win".
[SECTION]. In this view, we allow the Writ Appeal, set aside the judgment of the learned single Judge and dismiss [CASE NUMBER]. Parties will suffer their respective costs.