Case: Mohammad Shujat, Ali &amp; Ors. Etc Vs. Union Of India &amp; Ors. Etc

I being denied the opportunity for promotion and the graduate Supervior is preferred? There can be no satisfactory answer to this question. It must be remembered that many of these non-graduate Supervisors might not have been able to obtain degree in engineering because they came from poorer families and did not have the financial resources to pursue degree course in engineering and not because they lacked the necessary capacity and intelligence "Chill penury might have "repressed their noble rage. It is of the essence of equal opportunity for such persons with humble and depressing backgrounds that they should have opportunity, through experience or selfstudy, to level up with their more fortunate colleagues who, by reason of favourable circumstances, could obtain the benefits of higher education, and if they prove themselves fit and more suitable than others, why should they be denied an opportunity to be promoted in a vacancy on the ground that vacancy belongs to Supervisors possessing higher educational qualifications.32. As pointed out by Krishna Iyer, J., in (1974) 1 SCC 19 :(AIR 1974 SC 1 : 1974 Lab IC 1) "the soul of Art. 16 is the promotion of the common mans capabilities, over-powering environmental adversities and opening up full opportunities to develop in official life without succumbing to the sophistic argument of the elite that talent is the privilege of the few and they must rule. To permit discrimination based on educational attainments not obligated by the nature of the duties of the higher post is to stifle the social thrust of the equality clause. A rule of promotion which while conceding that non-graduate Supervisors are also fit to be promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion for graduate Supervisors as against non-graduate Supervisors would clearly be calculated to destroy the guarantee of equal opportunity. But even so, we do not think we can be persuaded to strike down the Andhra Pradesh Rules in so far as they make differentiation between graduate and non-graduate Supervisors. This differentiation is not something brought about for the first time by the Andhra Pradesh Rules. It has always been there in the Engineering Services of the Hyderabad and the Andhra States. The graduate Supervisors have always been treated as a distinct and separate class from non-graduate Supervisors both under the Hyderabad Rules as well as the Andhra Rules and they have never been integrated into one class. Under the Hyderabad Rules the pay scale of graduate Supervisors was Rs. 176-300, while that of non-graduate Supervisors was Rs. 140-300 and similarly, under the Andhra Rules the pay scale of non-graduate Supervisors was Rs. 100-250, but graduate Supervisors were started in this pay scale at the stage of Rs. 150/-so that their pay-scale was Rs. 150-250. Graduate Supervisors and non-graduate Supervisors were also treated differently for the purpose of promotion under both sets of Rules.In fact, under the Andhra Rules a different nomenclature of Junior Engineers was given to graduate Supervisors. The same differentiation into two classes also persisted in the reorganised State of Andhra Pradesh. The pay-scale of Junior Engineers was always different from that of non-graduate Supervisors and for the purpose of promotion, the two categories of Supervisors were kept distinct and apart under the Andhra Rules even after the appointed day. The common gradation list of Supervisors finally approved by the Government of India also consisted of two parts one part relating to Junior Engineers and the other part relating to non-graduate Supervisors. The two categories of Supervisors were thus never fused into one class and no question of unconstitutional discrimination could arise by reason of differential treatment being given to them. Contention E cannot, therefore, prevail and must be rejected.33. That takes us to contention D. So far as this contention is concerned, we do not think we can be called upon to decide it. It does not form the subject-matter of Writ Petition No. 385 of 1959. There is no complaint in this petition in regard to the classification of non-graduate Supervisors into different categories and reservation of vacancy for each category in the cyclic order of rotation for promotion to the posts of Assistant Engineers. When we turn to the judgment of the Full Bench impugned in the appeals, we find that there is discussion in that judgment in regard to the rotational system of promotion prescribed under the Andhra Pradesh Rules, but that discussion is mainly in the context of an argument challenging the different proportions of vacancies allotted to graduate and non-graduate Supervisors. No specific contention seems to have been advanced directly impugning the distribution of the vacancies allotted to non-graduate Supervisors. It is true that there is reference in the judgment to the distribution of the non-graduate Supervisors quota of vacancies amongst different classes of non-graduate Supervisors, but that reference is on account of the fact that the respondents relied on this factor as justifying the rotation system as between graduate Supervisors and non-graduate Supervisors. It is indeed difficult to see how the Full Bench could have possibly examined the challenge against distribution of vacancies amongst different categories of non-graduate Supervisors in the cyclic order of rotation when such challenge did not arise out of any averments in the writ petitions, and moreover, all directly recruited non-graduate Supervisors and promotee non-graduate supervisors holding LCE, LME or LEE diplomas, who would be affected by an adverse decision, were not before the High Court. We are of the view that in the absence of necessary averments in regard to this challenge in the writ petitions before the High Court as also in Writ Petition No. 385 of 1969 before this Court and particularly the non-graduate Supervisors, who would be affected by an adverse decision, not being before the High Court or this Court to contest such challenge, it was not possible for the High Court and it is equally not possible for this Court to entertain this challenge and examine its validity on merits. We, therefore, refuse to consider contention D.34.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is, therefore, not possible to overturn the decision of the Government of Andhra Pradesh denying equivalence of US and OCE certificates of the Osmania Engineering College with LCE, LME or LEE diplomas. It may be noted that the Central Government also affirmed the decision of the Government of Andhra Pradesh by its letter dated 17th March, 1966. Even if it be assumed that the Central Government had the exclusive power under the States Reorganisation Act, 1956 to bring about integration of services in the reorganised State of Andhra Pradesh, this decision of the Central Government contained in the letter dated 17th March, 1966 is sufficient to meet the requirement of the statute and it must be upheld for the same reasons as the decision of the Government of Andhra Pradesh. There was a further ground of attack levelled against the decision of the Central Government, albeit faint-heatedly, and that was that the decision of the Central Government was arrived at solely on the basis of the communication dated 9th January, 1965 addressed by the Additional Secretary to the Government of Andhra Pradesh to the Secretary to the Government of India, Ministry of Home Affairs without giving any opportunity to the non-graduate Supervisors from the erstwhile Hyderabad State to put forward their case. This charge is plainly unsustainable as it is evident from paragraph 9 of the affidavit dated 27th July, 1970 filed by K. P. Sing, Under Secretary to the Government of India, Ministry of Home Affairs in reply to Writ Petition No. 385 of 1969, and it can hardly be disputed, that the representations made by the non-graduate Supervisors from the erstwhile Hyderabad State against the decision of the Government of Andhra Pradesh contained in the order dated 3rd October, 1960 were forwarded to the Central Government and it was after giving due consideration to these representations on the basis of the recommendations of the Advisory Board which consisted of experts, that the Central Government affirmed the decision of the Government of Andhra Pradesh by its letter dated 17th March, 1966. The present contention of the petitioners/appellants must, therefore, beobservations made on behalf of a Bench of five Judges of this Court are binding upon us. Even otherwise they have our full concurrence. The view taken by the Court in this case is sound and commends itself to us. In fact that is the only view possible on a conjoint reading of paragraphs 3 and 6 of the memorandum. This decision leaves no room for doubt that, by issuing the memorandum, the Central Government gave its previous approval to any variation which might be made in the conditions of service relating to promotion within the meaning of the proviso to Section 115, sub-section (7). No alteration in the conditions of service relating to promotions could thereafter be struck down, as invalid on the ground of contravention of the mandatory requirement of the proviso to Section 115, sub-sectionaffirm the decision in Raghavendra Raos case, (1964) 7 SCR 549   = (AIR 1965) SC 136  ) and hold that the memorandum dated 11th May, 1957 constituted previous approval of the Central Government to any variation which might be made in the conditions of service relating to promotion within the meaning of the proviso to Section 115, sub-section (7).We may point out that the decision in Raghavendra Raos case, (1964) 7 SCR 549   = (AIR 1965 SC 136  ) has been cited with approval by a Bench of five Judges of this Court as recently as 23rd August, 1972 in N. Subba Rao v. Union of India, AIR 1973 SC 69   = (1974 Lab IC 240).It must, therefore be concluded that in any view of the matter the Andhra Rules and the Andhra Pradesh Rules did not contravene the proviso to Section 115, sub-sectionpost of Sub-Engineer having been equated with the post of Assistant Engineer urged the petitioners/appellants, one stage promotion from the post of Supervisor was to the post of Assistant Engineer and consequently, promotion of the Supervisors from the erstwhile Hyderabad State to the post of Assistant Engineer was governed by the Hyderabad Rules and not by the Andhra Rules from and after 1st November, 1956 and promotion made on the basis of Andhra Rules must accordingly be reviewed and adjusted. This contention of the petitioners/appellants is, in our opinion, untenable and cannot beis difficult to imagine how in these circumstances any promotion could be made from the post of Supervisor to the post of Assistant Engineers according to the Hyderabad Rules. The one stage promotion from the post of Supervisor contemplated by the Hyderabad Rules was to the post of Sub-Engineers and consequently, if the cadre of Sub-Engineer had continued in the reorganised State of Andhra Pradesh, there can be no doubt that, according to the decision contained in the order dated 7th April, 1960, the promotion of Supervisors from the erstwhile Hyderabad State to the post of Sub-Engineer would have been governed by the Hyderabad Rules. But with a view to bringing about integration of the Engineering Service the cadre of Sub-Engineer was abolished by the Government of Andhra Pradesh and therefore, so far as promotion from the post of Supervisors was concerned, the Hyderabad Rules, ceased to have application. The Hyderabad Rules could not govern promotion from the post of Supervisor to the post of Assistant Engineer, because no such promotion was provided or contemplated in the Hyderabad Rules. In fact, if the Andhra Rules were not made applicable to Supervisors from the erstwhile Hyderabad State, all further chances of promotion for such of them as were non-graduates would have been barred, because under the Hyderabad Rules they could be promoted only to the post of Sub-Engineer and no higher and the cadre of Sub-Engineers was abolished. The next higher stage of promotion from the post of Supervisor in the reorganised State of Andhra Pradesh was the post of Assistant Engineer and promotion to that post could be governed only by the Andhra Rules which contemplated such promotion and made express provision for it. The petitioners/appellants were, therefore not entitled to claim that Supervisors from the erstwhile Hyderabad State should have been promoted as Assistant Engineers in the reorganised State of Andhra Pradesh according to the Hyderabadthe post of Assistant Engineer to which Supervisors from the erstwhile State of Hyderabad claimed to be promoted on or after 1st November, 1956 was undoubtedly one stage above that held by the Supervisors there being no intermediate post in the reorganised State, but it cannot be said that the Supervisors would have been qualified for promotion to the post of Assistant Engineer under the Hyderabad Rules, if recruitment to the post of Assistant Engineer had been regulated by the Hyderabad Rules. In the first place the Hyderabad Rules did not provide for promotion directly from the post of Supervisor to the post of Assistant Engineer, and secondly under the Hyderabad Rules, a non-graduate Supervisor would not have been qualified for promotion to the post of Assistant Engineer. The contention based on Rule 42 (h)(i) must also therefore be rejected.We thus arrive at the point at which the demand for equality confronts the right to classify. For it is the classification which determines the range of persons affected by the special burden or benefit of a law which does not apply to all persons. This brings out a paradox. The equal protection of the laws is a "pledge of the protection of equal laws." But laws may classify. And, as pointed out by Justice Brewar, "the very idea of classification is that of inequality. The court has tackled this paradox over the years and in doing so, it has neither abandoned the demand for equality nor denied the legislative right to classify. It has adopted a middle course of realistic reconciliation. It has resolved the contradictory demands of legislative specialization and constitutional generality by a doctrine of reasonable classification. This doctrine recognises that the legislature may classify for the purpose of legislation but requires that the classification must be reasonable. It should ensure that persons or things similarly situated are all similarly treated. The measure of reasonableness of a classification is the degree of its success in treating similarly those similarly situated. "The Equal Protection of the Laws, 37 California Law Review, 341.The test which has been evolved for this purpose is - and this test has been consistently applied by this Court in all decided cases since the commencement of the Constitution -that the classification must be founded on an intelligible differentia which distinguishes certain persons or things that are grouped together from others and that differentia must have a rational relation to the object sought to be achieved by the legislation.27.It is in the light of these principles that we must proceed to examine the constitutional validity of the Andhra Pradesh Rules. The complaint of the petitioners under the head of contention E is that the Andhra Pradesh Rules make unjust discrimination between graduates and non-graduates in the matter of promotion of Supervisors as Assistant Engineers. Now, whether we look at the unamended or the amended Andhra Pradesh Rules, it is clear that graduate Supervisors are given a preferential treatment over non-graduate Supervisors, in that two out of every three vacancies initially, and after the amendment, three out of every four vacancy in the posts of Assistant Engineers are reserved for promotion of graduate Supervisors and only the remaining one vacancies is left to be filled by promotion of non-graduate Supervisors. The question is whether this preferential treatment can be justified on the basis of any reasonable classification or it is arbitrary and irrational. The law as it stands today is clear that the burden is always on him who attacks the constitutionality of a legislation to show that the classification made by it is unreasonable and violative of Articles 14 and 16. Has this burden been discharged by the petitioners/appellants: have they shown that the classification of Supervisors into graduates and non-graduates for the purpose of promotion as Assistant Engineers is unrelated to the object of the Andhra Pradesh Rules, or in other words, it is arbitrary andgraduate Supervisors have always been treated as a distinct and separate class from non-graduate Supervisors both under the Hyderabad Rules as well as the Andhra Rules and they have never been integrated into one class. Under the Hyderabad Rules the pay scale of graduate Supervisors was Rs. 176-300, while that of non-graduate Supervisors was Rs. 140-300 and similarly, under the Andhra Rules the pay scale of non-graduate Supervisors was Rs. 100-250, but graduate Supervisors were started in this pay scale at the stage of Rs. 150/-so that their pay-scale was Rs. 150-250. Graduate Supervisors and non-graduate Supervisors were also treated differently for the purpose of promotion under both sets of Rules.In fact, under the Andhra Rules a different nomenclature of Junior Engineers was given to graduate Supervisors. The same differentiation into two classes also persisted in the reorganised State of Andhra Pradesh. The pay-scale of Junior Engineers was always different from that of non-graduate Supervisors and for the purpose of promotion, the two categories of Supervisors were kept distinct and apart under the Andhra Rules even after the appointed day. The common gradation list of Supervisors finally approved by the Government of India also consisted of two parts one part relating to Junior Engineers and the other part relating to non-graduate Supervisors. The two categories of Supervisors were thus never fused into one class and no question of unconstitutional discrimination could arise by reason of differential treatment being given to them. Contention E cannot, therefore, prevail and must be rejected.That takes us to contention D. So far as this contention is concerned, we do not think we can be called upon to decide it. It does not form the subject-matter of Writ Petition No. 385 of 1959. There is no complaint in this petition in regard to the classification of non-graduate Supervisors into different categories and reservation of vacancy for each category in the cyclic order of rotation for promotion to the posts of Assistant Engineers. When we turn to the judgment of the Full Bench impugned in the appeals, we find that there is discussion in that judgment in regard to the rotational system of promotion prescribed under the Andhra Pradesh Rules, but that discussion is mainly in the context of an argument challenging the different proportions of vacancies allotted to graduate and non-graduate Supervisors. No specific contention seems to have been advanced directly impugning the distribution of the vacancies allotted to non-graduate Supervisors. It is true that there is reference in the judgment to the distribution of the non-graduate Supervisors quota of vacancies amongst different classes of non-graduate Supervisors, but that reference is on account of the fact that the respondents relied on this factor as justifying the rotation system as between graduate Supervisors and non-graduate Supervisors. It is indeed difficult to see how the Full Bench could have possibly examined the challenge against distribution of vacancies amongst different categories of non-graduate Supervisors in the cyclic order of rotation when such challenge did not arise out of any averments in the writ petitions, and moreover, all directly recruited non-graduate Supervisors and promotee non-graduate supervisors holding LCE, LME or LEE diplomas, who would be affected by an adverse decision, were not before the High Court. We are of the view that in the absence of necessary averments in regard to this challenge in the writ petitions before the High Court as also in Writ Petition No. 385 of 1969 before this Court and particularly the non-graduate Supervisors, who would be affected by an adverse decision, not being before the High Court or this Court to contest such challenge, it was not possible for the High Court and it is equally not possible for this Court to entertain this challenge and examine its validity on merits. We, therefore, refuse to consider contention D.