Case: State of Gujarat Vs. C.G. Desai &amp; Others

pointed out by this Court in Ganga Rams case. (1970) 3 SCR 481 = (AIR 1970 SC 2178 ) (supra) in applying the wide language of Articles 14 and 16 to concrete cases. doctrinaire approach should be avoided and the matter considered in a practical way. If the claim of the respondents to the counting of their preselection service is conceded, it will create serious complications in running the administration: it will result in inequality of treatment rather than in removing it. If the pre-selection service as Officiating Deputy Engineers of direct recruits having such service, is taken into account for the purpose of promotion, it would create two classes amongst the same group and result in discrimination against those direct recruits who had no such preselection service to their credit.18. The Select-List is prepared on the basis of seniority-cum-merit, and the inter se seniority of the selected officers in the lower rank is ordinarily to be maintained in the promoted rank. Acceptance of the Respondents contention will make the smooth working and uniform application of this principle of seniority-cum-merit difficult. The inter se seniority of the selected officers will be seriously disturbed and the Department will be faced with the anomalous situation of a junior officer, with pre-selection service, becoming eligible to be considered for promotion over the head of his seniors, in the same group, having no such fortuitous pre-selection service to their credit.19. There is nothing in R. 7 (ii) which compels the interpretation that in the case of direct recruits, also, their pre-selection service as Officiating Deputy Engineers, if any, should be counted towards their eligibility service. Rule 7 (ii) is silent with regard to the method of computing the seven years period of eligibility service. 20. The interpretation of this condition of seven years service in Rule 7 (ii) is not res integra. It came up for consideration before this Court the Prabhakar Yeshwant Joshis case, (1970) 2 SCR 615 = (1971 Lab IC (N.) 8) (supra). The petitioners therein were also direct recruits to the posts of Deputy Engineers in B.S.E. Class II. The respondents therein had entered Class II Service by promotion. The petitioners challenged the promotions of the respondents to the posts of Officiating Executive Engineers as being contrary to the principles of natural justice and violative of Arts. 14 and 16 of the Constitution. It was inter alia contended that under the 1960 Rules in force, respondent 2 to 5 therein were only Officiating Deputy Engineers and they had to put in, after confirmation, as Deputy Engineers, seven years of actual service before being eligible for promotion as Officiating Executive Engineer. Speaking for the Court, Jaganmohan Reddy J. negatived this contention in these terms:"Even this Rule 7 (ii) does not indicate that the qualifying service of either of six years or of 7 years specified in the rule has to be permanent service. In cl. (ii) of R. 6 it is provided that 15 years of service in Class II for absorption (which means permanent absorption) as Executive Engineer can be in temporary or permanent capacities. There is nothing in R. (ii) to militate against the interpretation that the service specified there can be the total service of any description whether provisional, temporary or permanent. If promotion from Class II as officiating Executive Engineer can only be made after 7 years of permanent service, then there would be no meaning in including the temporary service in Class II for the purpose of absorption as Executive Engineer. Even R. 6 upon which Shri Gupte has laid great emphasis in support of his contention, does not, in our view, justify an interpretation that 7 years service required to entitle persons in Class II for promotion as an officiating Executive Engineer should be permanent service in Class II........ (within brackets ours) As we have seen earlier, cl. (ii) of R. 7 does not use the word belong but requires only that the person under consideration for promotion should be from Class II service. To be in Class II service the Deputy Engineer promoted from subordinate service has to put in at least 3 years of service as officiating Deputy Engineer before being confirmed and thereafter he can when he is promoted to the next higher rank be confirmed as Executive Engineer if he has put in 15 years in Class II service in temporary or permanent capacities and is holding an officiating divisional rank namely of an Executive Engineer. If temporary service can be taken into account for confirmation as an Executive Engineer, so can officiating service, and if officiating service can be taken into consideration, there is no impediment to a Depty Engineer with 7 years service whether officiating, temporary or permanent, to entitle him for promotion as an Executive Engineer...... We cannot, therefore, accept the contention of Shri Gupte that a promotee officiating Deputy Engineer Class II is not entitled to be considered for promotion under R. 7 to the post of an officiating Executive Engineer unless he has put in 7 years of service from the date of confirmation." 21. What is quoted above, no doubt, pertains to the case of promotees, with which the Bench was mainly concerned. But the observations in the penultimate paragraph of the judgment excerpted below, incidentally cover the issue now before us:"None of the petitioners, it is averred, was included in the Select List of 1964 or 1965 because not only did any of them not have the requisite seven years service as Deputy Engineer at the relevant time ... The petitioners however denied in their rejoinder that the list were prepared keeping the criteria laid down by the rules, but in our view,it is significant that they did not possess the required length of service in Class IIfor them to be entitled to promotion when the respondents were included in the list and promoted as such they cannot challenge the appointments made as being in violation of Art. 14 or Art. 16". (emphasis supplied)

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

Explanation:
1[ds]15. After hearing the learned Counsel on both sides, we think, that the contentions of Mr. Bhandare must prevail. It is manifest that direct recruits and promotees in Class II constitute two distinct groups or classes. This classification has a historical background and a rational basis.The promotees from the lower ranks have only one chance of getting into Class II service, as against three available to the direct recruits. Further, for a considerable time, recruitment by promotion from the ranks of Temporary officiating Deputy Engineers etc. to Class II Service remained frozen with consequent stagnation and loss of incentive in the service. Circumstances being what they are, promotees, at the time of their entry into Class II Service, are, broadly speaking, far older than the direct recruits; and, many of the promotees may have less than 7 years to go before attaining the age of superannuation. If in the case of both these groups of promotees and direct recruits, with different background and dissimilar circumstances, the period of seven years eligibility service were to start from the date of their absorption in Class II, then, for most of the promotees there would be a rare chance of ever getting promotion as Officiating Executive Engineer. The classification is thus based on intelligible differentia16. If a person, like any of the respondents, to avoid the long tortuon wait leaves his position in the never ending queue of Temporary Officiating Deputy Engineers etc, looking for promotion, and takes a short cut through the direct channel, to Class II Service, he gives up once for all, the advantages and disadvantages that go with the channel of promotion and accepts all the handicaps and benefits which attach to the group of direct recruits. He cannot, after his direct recruitment claim the benefit of hispreselectionservice and thus have the best of both the worlds. It is well settled that so long as the classification is reasonable and the persons falling in the same class are treated alike, there can be no question of violation of the constitutional guarantee of equal treatment19. There is nothing in R. 7 (ii) which compels the interpretation that in the case of direct recruits, also, theirpreselectionservice as Officiating Deputy Engineers, if any, should be counted towards their eligibility service. Rule 7 (ii) is silent with regard to the method of computing the seven years period of eligibility service20. The interpretation of this condition of seven years service in Rule 7 (ii) is not res integra. It came up for consideration before this Court the Prabhakar Yeshwant Joshis case, (1970) 2 SCR 615   = (1971 Lab IC (N.) 8) (supra). The petitioners therein were also direct recruits to the posts of Deputy Engineers in B.S.E. Class II. The respondents therein had entered Class II Service by promotion. The petitioners challenged the promotions of the respondents to the posts of Officiating Executive Engineers as being contrary to the principles of natural justice and violative of Arts. 14 and 16 of the Constitution. It was inter alia contended that under the 1960 Rules in force, respondent 2 to 5 therein were only Officiating Deputy Engineers and they had to put in, after confirmation, as Deputy Engineers, seven years of actual service before being eligible for promotion as Officiating Executive Engineer22. In the light of the above discussion, we are of the opinion that the learned Judges of the High Court were in error in holding that the impugned action of the Government suffered from the vice of discrimination and as such was violative of Art. 16 of the Constitution.