Case: THE STATE OF UTTARAKHAND Vs. S.K.SINGH

the diploma holders altogether or allow them unrestricted promotion on par with the graduates.?25. The last judgment to be cited, to be considered by us, is of the two Judges in M. Rathinaswami & Ors. v. State of Tamil Nadu & Ors. (2009) 5 SCC 625 In a case of an integrated list of seniority between direct recruits and promotees, preferential treatment, thereafter, based on educational qualifications was held as valid for considering promotion. However, among equally qualified candidates, there could be no further classification. The similarity of factual matrix is reflected, as the Junior Assistants holding the post were both graduates and post-graduates, though the minimum educational qualification was SSLC. From the post of Junior Assistants, the promotion was to the post of Assistants, and there could also be direct recruitment through competitive examinations. The minimum qualification for direct recruitment of Assistants was graduation. The promotion of Assistants to the post of Deputy Tahsildar was in question. The directly recruited Assistants were given preferential treatment by making them eligible for promotion as Deputy Tahsildar on completion of five (5) years as Assistants, while placing them above the senior, graduate promotee Assistants. In that context, it was observed that once the directly recruited Assistants have been integrated into one cadre, there could not be a further classification between those who had acquired the graduation qualification, whether before joining as Junior Assistants or thereafter. It was also left to the State to decide whether their qualification has a reasonable relation to the nature of duties and responsibilities of the promotional post. Similarly, regarding the question whether the difference in educational qualification is sufficient to give preferential treatment to one class of candidates against another, it was opined to be ordinarily left to the executive authorities to decide, as they have expertise in administrative matters and, ordinarily, it would not be proper for the court to sit in appeal over their decisions, unless it is something totally arbitrary or shocking.Conclusion:26. The spectrum of judicial opinions referred to aforesaid leaves us with little doubt that though equality is the very bulwark of the provisions of the Constitution, in service jurisprudence, classifications are a matter of necessity and judicial pronouncements have sought to balance the equality principle with the principle of classification, dependant on the nexus for making the classification. Higher educational qualifications have been repeatedly emphasized as an aspect which can give exclusive promotion, earlier promotion or for that matter, as in this case, an accelerated promotion. A higher degree of qualification intrinsically would bring in certain skills, though undoubtedly, that should be useful and have a nexus with the job being performed. As to who should examine this nexus, that has been left to the wisdom of the administrative authorities, who are best equipped to do so. M. Rathinaswami & Ors. v. State of T amil Nadu & Ors. (supra) .27. It has also been opined that even where persons having two different qualifications are given the opportunity of promotion, there cannot be an absolute equality for the reason that the administration may consider giving the lesser qualified an opportunity of promotion on different terms, rather than completely prohibiting them from promotion.28. We are conscious of the fact that in further posts, higher than AE, there is no distinction between persons having different qualifications. There are no direct appointments. The posts are filled in only through promotions. The question is what is really being done? In our view, all that has been done is that, at a particular promotion stage, in the wisdom of the administration, recognising higher skills developed through higher qualifications, and as an incentive to others to acquire these higher qualifications, an accelerated promotion on a small percentage of posts had been granted.29. We did put to the learned counsel for the private respondents if they could have been shut out from promotion, or if the time periods could have been different for promotion, then the result would have been the same as their grievance today, i.e., some of the Degree-holders would rank higher than the Diploma-holders. Thus, this is not something out of the ordinary which has happened, or would result in a situation which can be categorised extraordinary by reason of accelerated promotion to the Degree-holder.30. We have noticed another important aspect, i.e., that the direct recruitment to the post of AE required a candidate to be a Degree-holder. 50% of the posts were reserved for Degree-holding direct recruits. In the 50% promotion quota, a 10% promotion quota was carved out, leaving only 40% for promotion through the normal route. Possibly with the intention of obviating any grievance which the promotees may have, the normal promotion route was sought to be maintained at 50%, without any accelerated promotion in that portion, by bringing in 10% from the direct recruitment quota to the promotion quota, and that being utilised for accelerated promotion, for promotees with a Degree. Had this quota not been there at all, whether earlier or later, but the direct recruitment in promotion quota had been maintained in equal ratio, the Diploma-holders could, in any case, have had no grievance. The bringing forth from the direct recruitment quota (for which the qualification is the Degree) to the promotion quota and giving that through accelerated promotion for such persons who have a degree can, thus, hardly be said to have any intrinsic defects which could violate Articles 14 & 16 of the Constitution.31. The historical perspective also cited before us hardly supports the private respondents as even the State of Uttar Pradesh, as it existed earlier, and the Rules as they existed then, provided for such 7.33% quota, which was never assailed by any party.32. We may also add before ending, that there exist inconsistencies, which we have pointed earlier in para 16, in the principles laid down in the impugned judgment in para 30.33. We are, thus, unequivocally of the view that the impugned judgment cannot be sustained and the challenge to the Rule is misplaced.

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

Explanation:
0[ds]16. On the appreciation of the aforesaid pleas, we do find that there are inconsistencies in the different principles set forth. On a query posed to the learned senior counsel for the private respondents, it was conceded on the basis of various judicial pronouncements, that the appellant would be well within its right to provide a higher qualification for a promotion post. Thus, it could be very well said that both, for promotion and for direct appointment to AEs, Degree could be the essential qualification. He further could not dispute the proposition that there are judicial pronouncements to support, providing for a differential in the period of service for two different sets of educational qualifications at the time of promotion. Thus, in a sense, the appellant would be within its right to provide for different periods of experience as JEs for Degree-holders and Diploma-holders, for the purposes of promotion. This is apart from the plea of the appellants that the accelerated promotion is to encourage the JEs to acquire higher qualifications, and once they acquire the higher qualification, whether they possess that qualification at the stage of entry or not would be immaterial (again a principle settled through judicial pronouncements).The private respondents also referred to the judgment of the two Judge Bench of this Court in Punjab State Electricity Board, Patiala & Anr. v. Ravinder Kumar Sharma & Ors. AIR 1987 SC 367   , which had struck down theRule in respect of quota being carved out between the Degree-holders and the Diploma-holders of line men. However, this would not be of much relevance, as this judgment was subsequently overruled in P. Murugesan & Ors. v. State of Tamil Nadu & Ors. (1993) 2 SCCreturning to the P. Murugesan (1993) 2 SCC 340 case, the amended Rules introduced a ratio of 3:1 between graduate AEs and Diploma-holders JEs for promotion to the post of Assistant Executive Engineers. These Rules were held not to be violative of Articles 14 and 16 of the Constitution, opining that the Rule making authority was competent to impose a complete bar, as well as partial restrictions on the category of promotees, on the basis of educational qualifications.23. It may also be noticed that the Rule making power, under the proviso to Article 309 of the Constitution has been emphasised as legislative in nature and thus, the test to determine the constitutionality of any provision of such Rule is whether the legislature was competent to enact such a provision.26. The spectrum of judicial opinions referred to aforesaid leaves us with little doubt that though equality is the very bulwark of the provisions of the Constitution, in service jurisprudence, classifications are a matter of necessity and judicial pronouncements have sought to balance the equality principle with the principle of classification, dependant on the nexus for making the classification. Higher educational qualifications have been repeatedly emphasized as an aspect which can give exclusive promotion, earlier promotion or for that matter, as in this case, an accelerated promotion. A higher degree of qualification intrinsically would bring in certain skills, though undoubtedly, that should be useful and have a nexus with the job being performed. As to who should examine this nexus, that has been left to the wisdom of the administrative authorities, who are best equipped to doIt has also been opined that even where persons having two different qualifications are given the opportunity of promotion, there cannot be an absolute equality for the reason that the administration may consider giving the lesser qualified an opportunity of promotion on different terms, rather than completely prohibiting them from promotion.28. We are conscious of the fact that in further posts, higher than AE, there is no distinction between persons having different qualifications. There are no direct appointments. The posts are filled in only through promotions. The question is what is really being done? In our view, all that has been done is that, at a particular promotion stage, in the wisdom of the administration, recognising higher skills developed through higher qualifications, and as an incentive to others to acquire these higher qualifications, an accelerated promotion on a small percentage of posts had been granted.29. We did put to the learned counsel for the private respondents if they could have been shut out from promotion, or if the time periods could have been different for promotion, then the result would have been the same as their grievance today, i.e., some of the Degree-holders would rank higher than the Diploma-holders. Thus, this is not something out of the ordinary which has happened, or would result in a situation which can be categorised extraordinary by reason of accelerated promotion to the Degree-holder.30. We have noticed another important aspect, i.e., that the direct recruitment to the post of AE required a candidate to be a Degree-holder. 50% of the posts were reserved for Degree-holding direct recruits. In the 50% promotion quota, a 10% promotion quota was carved out, leaving only 40% for promotion through the normal route. Possibly with the intention of obviating any grievance which the promotees may have, the normal promotion route was sought to be maintained at 50%, without any accelerated promotion in that portion, by bringing in 10% from the direct recruitment quota to the promotion quota, and that being utilised for accelerated promotion, for promotees with a Degree. Had this quota not been there at all, whether earlier or later, but the direct recruitment in promotion quota had been maintained in equal ratio, the Diploma-holders could, in any case, have had no grievance. The bringing forth from the direct recruitment quota (for which the qualification is the Degree) to the promotion quota and giving that through accelerated promotion for such persons who have a degree can, thus, hardly be said to have any intrinsic defects which could violate Articles 14 & 16 of the Constitution.31. The historical perspective also cited before us hardly supports the private respondents as even the State of Uttar Pradesh, as it existed earlier, and the Rules as they existed then, provided for such 7.33% quota, which was never assailed by any party.32. We may also add before ending, that there exist inconsistencies, which we have pointed earlier in para 16, in the principles laid down in the impugned judgment in para 30.33. We are, thus, unequivocally of the view that the impugned judgment cannot be sustained and the challenge to the Rule is misplaced.