-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3350 OF 2001 1. K.K. Bhaskaran, ) residing at Quarter No. C/1, Electricity Colony, ) Dalwada, Daman ) 2. Sarjeet Singh, residing at Maya Vansi Falia, ) Opp. Government College, Near Ramesh Pamsi ) House, Dunetha, Daman )...Petitioners versus 1. Administrator, ) Administrator of Daman, Daman ) 2. Union Public Service Commission, Dholpur House, ) Shahjahan House, New Delhi-110 011. ) 3. Department of Personnel and Training, ) Government of India, New Delhi. ) 4. Union of India, through the Secretary to the ) Government of India, Ministry of Power, ) Shram Shakti Bhavan, Rafi Marg, New Delhi ) 5. Haresh D. Tandel ) 6. Yogesh Tripathi, ) both working as Junior Engineer, in the Electricity ) Department of the Administration of Daman and ) Diu at Daman )..Respondents Mr. Sanjay Udeshi with Mr. M. Londhe and Ms. Rema Bangale, instructed by M/s. Sanjay Udeshi & Co., for the petitioners. Mr. Girish Kulkarni with Mr. Shrishailya S. Deshmukh for respondent No.1. Mr. Y.S. Bhate with Mr. D.A. Dubey for respondent Nos. 2 to 4. -2- Mr. Saikumar Ramamurthy for respondent Nos. 5 and 6. CORAM: P.B. MAJMUDAR & R.G. KETKAR, JJ. DATE: MARCH 22, 2010. ORAL JUDGMENT: (Per P.B. Majmudar, J.) Whether it is open to the department to prescribe a certain percentage of quota between degree holders and diploma holders in the matter of promotion from the post of Junior Engineer to the Assistant Engineer is the question which is raised in the present petition at the instance of the petitioners. 2. The petitioners are working as Junior Engineers in the Electrical Department of the Administration of Union Territory of Daman and Diu. The petitioners are the diploma holders in Electrical Engineering and are serving with respondent No.1 since 1983. The post of Junior Engineers comprises of diploma holders as well as degree holders. The graduate engineers are those who have attended a five year Degree Course in Engineering and obtained the qualification of Bachelor of Engineering (B.E.) whereas diploma holders are those who have attended a three year diploma course in Engineering. 3. So far as the post of Junior Engineer is concerned, the same is Group “C” non-gazetted post and the same is the feeder post to the next post of -3- Assistant Engineer (Electrical), which is a Group-B gazetted post in the Electrical Department under the Administration of Daman and Diu. Initially, the incumbent holding the post of Junior Engineer was considered for promotion to the post of Assistant Engineer (Electrical), on the basis of common seniority, irrespective of whether one may be a Graduate Engineer or a Diploma holder. 4. Initially, as per the recruitment Rules prior to 1999, the Junior Engineers were eligible for promotion to the post of Assistant Engineer, who have put in four years of service, if they are degree holders, or eight years of service, if they are diploma holders. Subsequently, the said Rules were amended in the year 1999. The said amended rules were notified on 16th July, 1999 and as per the amended Rules, for promotion to Assistant Engineers, 75 per cent be promoted from the cadre of Junior Engineers who are diploma holders having eight years regular service and 25 per cent be promoted from the cadre of Junior Engineers who are Degree holders in Electrical Engineering with five years regular service. Accordingly, by the aforesaid Rules of 1999, 75 per cent posts are reserved for promotion for diploma holders and 25 per cent for the degree holders serving as Junior Engineer in the feeder post. It is the case of the petitioners that when initially entire 100 per cent posts of Assistant Engineers were to be filled in by promotion, irrespective of whether such Junior Engineers are diploma holders or degree holders. To prescribe the ratio of 75 : 25 per cent between diploma holders and degree holders is arbitrary and -4- discriminatory and the promotional posts should be filled in only on the basis of common seniority and there should not be any quota prescribed between degree holders and diploma holders. 25 per cent of the posts which is kept apart for the degree holders was accordingly challenged by the petitioners before the Central Administrative Tribunal, Mumbai Bench, by way of Original Application No. 986 of 1999. The Administrative Tribunal came to the conclusion that the classification between the diploma holders and degree holders is reasonable and it was found that such classification cannot be said to be irrational or arbitrary in any manner. It was found that the quota fixed for promotion to the post of Assistant Engineer between diploma holders and degree holders under the impugned 1999 Rules is valid. The original application filed by the present petitioners accordingly was dismissed by the Tribunal, which judgment is impugned in the present petition at the instance of the petitioners. 5. Mr. Sanjay Udeshi, learned counsel appearing for the petitioners, vehemently submitted that both the degree holders and diploma holders are doing the same work and they are in the same pay scale in the feeder cadre of Junior Engineer and, therefore, for further promotion, no quota between diploma holders and degree holders can be prescribed as, according to him, all the posts should be filled in by promotion, irrespective of whether one may be a degree holder or diploma holder. Mr. Udeshi further submitted that if 25 per cent of the promotional posts are reserved for degree holders, then some of the -5- diploma holders may not get the chance at all for promotion during their entire service career. Mr. Udeshi further submitted that the quota prescribed for future promotion is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India especially when both the degree holders and diploma holders are discharging same duty, so far as feeder cadre of Junior Engineer is concerned. It is also submitted by Mr. Udeshi that in any case such amendment in Rules should not be made applicable retrospectively as, at the time when the petitioners joined the services, 100 per cent promotional posts were to be filled in by promotion and there was no quota either for degree holders or diploma holders. Mr. Udeshi further submitted that under sub- section (6) of Section 60 of the Goa, Daman & Diu Reorganisation Act, 1987, the service conditions of the petitioners should not be altered which may be detrimental to the claim of the concerned employee. It is submitted by Mr. Udeshi that even otherwise such qualification by which per centage is prescribed for promotion between degree holders and diploma holders is violative of Article 16 of the Constitution of India and the aforesaid Rule of 1999, therefore, is required to be struck down. 6. Mr. Kulkarni, learned counsel appearing for respondent No.1, as well as Mr. Ramamurthy, learned counsel appearing for respondent Nos. 5 and 6, on the other hand, submitted that there is no justification in the claim of the petitioners in any manner. It is submitted that mere chance of promotion is not -6- a service condition and the Administration has taken conscious decision, after consulting the Union Public Service Commission. It is submitted that in a given case, even if the chances of promotion are reduced is no ground for striking down any Rules which are framed under Article 309 of the Constitution of India. It is submitted that as per the recruitment Rules, for the post of Executive Engineer, only degree holders are eligible for being appointed and with a view to see that such promotional posts may not be kept vacant for want of qualified degree holders, the Department has taken conscious decision to provide certain percentage in the promotional Rules for degree holders. It is further submitted that in any case, only 25 per cent of the posts are reserved for graduate engineers so far as promotional post of Assistant Engineer is concerned and the percentage of the post available to the diploma holders is 75 and, therefore, the said Rules cannot be said to be arbitrary in any manner. It is also submitted that in the earlier recruitment Rules prior to 1999, qualifying service was already provided for promotion between degree holder and diploma holder and by 1999 Rules it is further classified by which 25 per cent posts are kept reserved for degree holders and remaining 75 per cent diploma holders. It is submitted on behalf of the respondents that it can never be said that the aforesaid Rules of 1999 are in any way discriminatory or arbitrary and simply because the petitioners chances of promotion have been decreased by the said amendment, same cannot be a ground for striking of the said recruitment Rules. -7- 7. We have heard the learned counsel appearing for the parties and have also gone through the order of the Tribunal as well as the judgments cited at the Bar by the learned counsel appearing for the parties. 8. It is required to be noted that prior to 1999, promotions to the post of Assistant Engineer were given on the basis of seniority amongst the employees serving in the feeder cadre of Junior Engineer. Prior to 1999, the Junior Engineers who are degree holders were eligible for promotion to the post of Assistant Engineers who have put in five years of service and for diploma holders, the requirement of eight years of service was prescribed. The question which requires consideration is as to whether the prescription of certain percentage of quota in the matter of promotion and whether such Rules could have been made applicable to the petitioners who were recruited prior to the aforesaid 1999 Rules. It is true, as argued by the learned counsel for the petitioners, that at the initial recruitment in the feeder cadre, the pay scale prescribed for diploma holders and degree holders is the same as they are discharging the same work and duty assigned to them. If that be so, whether at the time of considering the claim for promotion, any ratio can be provided in the matter between the degree holder and diploma holder. In this behalf, the judgments cited at the Bar by the learned counsel appearing for the parties in connection with the point in issue is required to be taken into consideration. -8- 9. In the case of the State of Jammu and Kashmir vs. Shri Triloki Nath Khosa and others1, the Supreme Court has considered the question about classification in the matter of promotion on the basis of academic or technical qualifications. In the aforesaid case the Supreme Court has observed in paras 33 and 34 as under: “33. Judged from this point of view, it seems to us impossible to accept the respondents’ submission that the classification of Assistant Engineers into degree-holders ad diploma-holders rests on any unreal or unreasonable basis. The classification, according to the appellants, was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly co-related to it, for higher educational qualifications are at least presumptive evidence of a higher mental equipment. This is not to suggest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. What is relevant is that the object to be achieved here is not a mere pretence for an indiscriminate imposition of inequalities and the classification cannot be characterized as arbitrary or absurd. That is the farthest that judicial scrutiny can extend. 34. On the facts of the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. The provision in the 1939 Rules restricting direct recruitment of Assistant Engineers to Engineering graduates, the dearth of graduates in times past and their copious flow in times present are all matters which can be legitimately enter the judgment of the rule making authority. In the light of these facts, that judgment cannot be assailed as capricious or fanciful. Efficiency which comes in the trail of higher mental equipment can reasonably be attempted to be achieved by restricting promotional opportunities to these possessing higher educational 1 (1974)1 SCC 19 -9- qualifications. And we are concerned with the reasonableness of the classification not with the precise accuracy of the decision to classify nor with the question whether the classification is scientific. Such tests have long since been discarded. In fact American decisions have gone as far as saying that classification would offend against the 14th Amendment of the American Constitution only if it is “purely arbitrary, oppressive or capricious” (7) and the inequality produced in order to encounter the challenge of the Constitution must be “actually and palpably unreasonably and arbitrary”. (8) We need not go that far as the differences between the two classes – graduates and diploma holders – furnish a reasonable basis for separate treatment and near a just relation to the purpose of the impugned provision.” After considering the judgment in the case of Roshan Lal Tandor vs. Union of India1, it has been further observed in paragraphs 46 and 47 as under: “46. Roshan Lal’s case is thus no authority for the proposition that if direct recruits and promotees are integrated into one class, they cannot be classified for purposes of promotion on a basis other than the one that they were drawn from different sources. In the instant case, classification rests fairly and squarely on the consideration of educational qualifications: Graduates alone shall go into the higher post, no matter whether they were appointed as Assistant Engineers directly or by promotion. The discrimination therefore is not in relation to the source of recruitment as in Roshan Lal’s case. 47. It is relevant, though inconclusive, that the very bench which decided Roshan Lal’s case held about a fortnight later in Narsing Rao’s case that higher educational qualifications are a relevant consideration for fixing a higher pay scale and therefore matriculate Tracers, though their duties were identical. Logically, if persons recruited to a common cadre can be classified for purposes of pay on the basis of their educational qualifications, there could be no impediment on classifying them on the same basis for purposes of promotion. The ratio of Roshan Lal’s case can at best be an impediment in favouring persons drawn from one source as against those drawn from another for the reason merely that they are drawn from different sources.” 1 AIR 1967 SC 1889 -10- In paragraph 50, it has been observed that though the persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could for the purpose of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate Articles 14 and 16 of the Constitution of India and must be upheld. 10. Mr. Udeshi has relied upon the decision of the Supreme Court in the case of Mohammad Shujat Ali and others vs. Union of India and others1 . He has placed reliance on paragraphs 14 and 15 of the said judgment which read thus: “14. This contention rests on the applicability of the proviso to Section 115, sub-section (7) of the State Reorganisation Act, 1956. Sub-section (7) of Section 115 reads as follows: “Nothing in this section shall be deemed to affect after the appoint3ed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State.” The effect of this sub-section is inter alia to preserve the power of the State to make rules under Article 309 of the Constitution in laying down the conditions of service of persons allotted to serve in connection with the affairs of the State. But there is a proviso which imposes a limitation on the exercise of this power and that 1 (1975) 3 SCC 76 -11- proviso runs as under: Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub- section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government. The limitation imposed by the proviso is that the State cannot vary the conditions of service applicable immediately before November 1, 1956 to the disadvantage of persons allotted to serve in connection with the affairs of the State, except with the previous approval of the Central Government. The question which therefore, arises for consideration under this contention is whether the application of the Andhra Rules for promotion from the posts of Supervisors to the posts of Assistant Engineers from and after November 1, 1956 and the enactment of the Andhra Pradesh Rules on February 22, 1967 together with their amendment on January 12, 1968 varied to their disadvantage the condition of service in regard to promotion applicable to non- graduate Supervisors from the erstwhile Hyderabad State immediately prior to November 1, 1956, without the prior approval of the Central Government. Now the only right in regard to promotion which the condition of service immediately prior to November 1, 1956 gave to non-graduate Supervisors from the erstwhile Hyderabad State was the right to be considered for promotion to fifty per cent of the posts of Sub-Engineers but the argument of the petitioners/appellants was that the posts of Sub- Engineers were equated with those of Assistant Engineers, and, therefore, their right to be considered for promotion under the condition of service applicable to them immediately prior to November 1, 1956 extended to fifty per cent of the posts of Assistant Engineers. This was the premise which formed the basis of the contention of the petitioners/appellants that the condition of service applicable to non-graduate Supervisors from the erstwhile Hyderabad State immediately prior to November 1, 1956 was varied to their disadvantage without the prior approval of the Central Government. We will assume with the petitioners/appellants that this premise is correct, but even so, there are at least two answers which are sufficient to repeal this contention of the petitioners/appellants. 15. In the first place, it is not correct to say that there was any variation in the condition of service in regard to promotion applicable to non-graduate Supervisors from the erstwhile State -12- of Hyderabad immediately prior to November 1, 1956. It is true that a rule which confers a right of actual promotion or a right to e considered for promotion is a rule prescribing a condition of service. This proposition can no lo0nger be disputed in view of several pronouncements of this Court on the point and particularly the decision in Mohammad Bhakar vs. Y. Krishna Reddy1 where this Court, speaking through Mitter, J. said “Any rule which affects the promotion of a person relates to his condition of service”. But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion – the latter would certainly not be a condition of service. This Court pointed out in State of Mysore v. G.B. Purohit that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. What happened in State of Mysore vs. G.B. Purohit (supra) was that the district wise seniority of Sanitary Inspectors was changed to Statewise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115, sub-section (7). This contention was negatived and Wanchoo, J. as he then was, speaking on behalf of this Court observed : “It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service.” Now, here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of Assistant Engineers available to non-graduate Supervisors from the erstwhile Hyderabad State for promotion, was reduced “ originally it was fifty per cent then it became thirty three and one third per cent, then one in eighteen and ultimately one in twenty- four. The right to be considered for promotion was not affected but the chances of promotion were severely reduced. This did not constitute variation in the condition of service applicable immediately prior to November 1, 1956 and the proviso to Section 115, sub-section (7) was not attracted. This view is completely supported by the decision of a Constitution Bench of this Court in Ramchandra Shankar Deodhar vs. The State of Maharashtra2” 1 1970 SLR 768 2 (1974) 1 SCC 317 -13- 11. In paragraph 28, the Supreme Court has held that educational qualifications have been recognised as forming a valid basis for classification. After considering various judgments, the Supreme Court in the said case held as under: “28..... This Court repelled the challenge holding that “though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for the purpose of promotion to the cadre of Executive Engineers,be classified on the basis of educational qualifications” and “the rule providing that graduates shall be eligible for such promotion to the exclusion of diploma holders” was not obnoxious to the fundamental guarantee of equality and equal opportunity. But from these decisions it cannot be laid down as an invariable rule that whenever any classification is made on the basis of variant educational qualifications, such classification must be held to be valid, irrespective of the nature and purposes of the classification or the quality and extent of the differences in the educational qualifications. It must be remembered that “life has relations not capable always of division into inflexible compartments”. The moulds expand and shrink. The test of reasonable classification has to be applied in such case on its peculiar facts and circumstances”.... In the said case, ultimately the classification was upheld by the Supreme Court. We are not in a position to agree with the submission of Mr. Udeshi that the ratio of the said judgment should be read as if the Supreme Court has disapproved such classification. On the contrary, the view taken in Triloki’s case (supra) has been reaffirmed in the aforesaid decision. -14- 12. Mr. Udeshi thereafter relied upon the decision of the Supreme Court in the case of N.Abdul Basheer and others vs. K.K. Karunakaran and others1. In the aforesaid case, writ petitions were filed by non-graduate Excise Inspectors challenging the amendment to the Kerala excise & Prohibition Subordinate Service Rules. By the aforesaid Rules, ratio was prescribed between graduates and non-graduates in the matter of promotion from the post of Excise Preventive Officer to Second Grade Excise Inspectors. A single Judge of the Kerala High Court struck down the said Rules on the ground that the same is discriminatory. In the aforesaid case the amendment in the Rule was introduced prescribing a ratio of 1 : 3 between graduates and non-graduates which was introduced into the Special Rules in the matter of promotion from the category of Excise Preventive Officers to that of Second Grade Excise Inspectors and the amendment was deemed to have come into force retrospectively when the Special