Case: S.L. Sachdev and Another Vs. Union of India and Others

a common service in the instant case and therefore different rules of promotion can be applied to the two classes. We are unable to accept this contention. The duties, functions and responsibilities of all the U.D.Cs. in the new organisation are identical. They are all in the same cadre and they draw the same pay in the same grade. There is no reason then why different tests should be prescribed for determining their respective promotional opportunities, and that too solely in reference to the source from which they are drawn. The test of educational qualifications can conceivable be an intelligible differentia bearing nexus with the object of ensuring greater efficiency in public services. But once a cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances. The impugned directives are therefore unconstitutional.9. Apart from this consideration, we are unable to understand how the Director General could issue any directive which is inconsistent with the Recruitment Rules of 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution. Those rules do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organisation. It may be recalled that the Recruitment Rules only provide for a classification on the basis of the length of service in the new organisation. Any directive which goes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction. No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309. That is elementary. We are unable to accept the learned Attorney Generals submission that the directive of the Director General is aimed at further and better implementation of the Recruitment Rules. Clearly, it introduces an amendment to the Rules by prescribing one more test for determining whether U.D.Cs. drawn from the Audit Offices are eligible for promotion to the Selection grade/Head Clerks Cadre.The High Court of Kerala in Balakrishnan v. Comptroller &Auditor General of India and the High Court of Karnataka in Krishnamurthy C.K. v. Director General, P &T have struck down the impugned directions issued by the Director General P &T on the ground that they are discriminatory and therefore unconstitutional. These decisions of the Kerala and the Karnataka High Courts are correct. In fact, it is significant that the Union of India did not file any appeal against those decisions and has acquiesced in them. The High Court of Andhra Pradesh in V. Subramanyam v. The Director General of Posts and Telegraphs, New Delhi and the High Court of Madras in V. S. Rajagopalan v. post Master General seem to have rejected the writ petitions filed before them by persons similarly situated as the petitioners, by holding that no discrimination was involved in fixing separate quotas for the purpose of promotion between the U.D.Cs. drawn from the Audit Offices and the other U.D.Cs. With respect, we consider the decisions of the High Courts of Andhra Pradesh and Madras as incorrect.10. The petitioners have also challenged the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules of 1969 which provides that U.D.Cs. drawn from Audit Office s must put in 10 years of service for acquiring eligibility for promotion whereas other U.D.Cs. are eligible for promotion after putting in 5 years service. We are not inclined to entertain that challenge since the impugned provision has been in force since 1969 and it was not until the filing of this petition in 1979 that any objection was taken to its legality. Besides, we are of the opinion that considering the history leading to the formation of the new organisation, SBCO-ICO , the distinction made between the two classes of U.D.Cs. in the context of the length of their service for the purposes of promotion is not arbitrary or unreasonable. The staff of the Audit Offices which was engaged in the Savings Banks work might well have faced retrenchment. Instead of subjecting them to that hardship, they were given the option of joining the new organisation. Experience-wise also, there would appear to be fair justification for requiring them to put in longer service in the new organisation before they are eligible for promotion to the higher grade. That challenge has therefore to be repelled.In the result, we allow the writ petition partly and quash the directions issued by respondent 2 by his letters of May 16, 1975 and May 29, 1965 to the effect that U.D.Cs. drawn from the Audit Offices will be eligible for promotion to the Selection Grade on the basis of 10 per cent of the posts held by them or to the Head Clerks Cadre on the basis of 20 per cent of the posts held by them in SBCO-ICO. They and the other U.D.Cs. will accordingly be entitled equally to promotional opportunities. We direct that the petitioners, and others similarly situated as them, shall be promoted to the Selection Grade/ Head Clerks Cadre with effect from the dates on which they were due for promotion, by applying the test of seniority-cum-fitness. Since we have upheld the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules, 1969, the petitioners will have become eligible for promotion after completing 10 years service in SBCO-ICO. Since the demotion of the respondents or any of them is likely to lead to undue hardship to them and to some administrative confusion, the Government may create supernumerary posts to which the petitioners and others similarly situated as them, may be promoted. We are informed that consequent upon the judgments of the High Courts of Kerala and Karnataka, the Government h as adopted a similar course in the Kerala and Karnataka Circles.11.

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

Explanation:
1[ds]There is no reason then why different tests should be prescribed for determining their respective promotional opportunities, and that too solely in reference to the source from which they are drawn. The test of educational qualifications can conceivable be an intelligible differentia bearing nexus with the object of ensuring greater efficiency in public services. But once a cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances. The impugned directives are thereforefrom this consideration, we are unable to understand how the Director General could issue any directive which is inconsistent with the Recruitment Rules of 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution. Those rules do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organisation. It may be recalled that the Recruitment Rules only provide for a classification on the basis of the length of service in the new organisation. Any directive which goes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction. No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309. That is elementary. We are unable to accept the learned Attorney Generals submission that the directive of the Director General is aimed at further and better implementation of the Recruitment Rules. Clearly, it introduces an amendment to the Rules by prescribing one more test for determining whether U.D.Cs. drawn from the Audit Offices are eligible for promotion to the Selection grade/Head Clerks Cadre.The High Court of Kerala in Balakrishnan v. Comptroller &Auditor General of India and the High Court of Karnataka in Krishnamurthy C.K. v. Director General, P &T have struck down the impugned directions issued by the Director General P &T on the ground that they are discriminatory and therefore unconstitutional. These decisions of the Kerala and the Karnataka High Courts are correct. In fact, it is significant that the Union of India did not file any appeal against those decisions and has acquiesced in them. The High Court of Andhra Pradesh in V. Subramanyam v. The Director General of Posts and Telegraphs, New Delhi and the High Court of Madras in V. S. Rajagopalan v. post Master General seem to have rejected the writ petitions filed before them by persons similarly situated as the petitioners, by holding that no discrimination was involved in fixing separate quotas for the purpose of promotion between the U.D.Cs. drawn from the Audit Offices and the other U.D.Cs. With respect, we consider the decisions of the High Courts of Andhra Pradesh and Madras asare not inclined to entertain that challenge since the impugned provision has been in force since 1969 and it was not until the filing of this petition in 1979 that any objection was taken to its legality. Besides, we are of the opinion that considering the history leading to the formation of the new organisation, SBCO-ICO , the distinction made between the two classes of U.D.Cs. in the context of the length of their service for the purposes of promotion is not arbitrary or unreasonable. The staff of the Audit Offices which was engaged in the Savings Banks work might well have faced retrenchment. Instead of subjecting them to that hardship, they were given the option of joining the new organisation. Experience-wise also, there would appear to be fair justification for requiring them to put in longer service in the new organisation before they are eligible for promotion to the higher grade. That challenge has therefore to be repelled.In the result, we allow the writ petition partly and quash the directions issued by respondent 2 by his letters of May 16, 1975 and May 29, 1965 to the effect that U.D.Cs. drawn from the Audit Offices will be eligible for promotion to the Selection Grade on the basis of 10 per cent of the posts held by them or to the Head Clerks Cadre on the basis of 20 per cent of the posts held by them in SBCO-ICO. They and the other U.D.Cs. will accordingly be entitled equally to promotional opportunities. We direct that the petitioners, and others similarly situated as them, shall be promoted to the Selection Grade/ Head Clerks Cadre with effect from the dates on which they were due for promotion, by applying the test of seniority-cum-fitness. Since we have upheld the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules, 1969, the petitioners will have become eligible for promotion after completing 10 years service in SBCO-ICO. Since the demotion of the respondents or any of them is likely to lead to undue hardship to them and to some administrative confusion, the Government may create supernumerary posts to which the petitioners and others similarly situated as them, may be promoted. We are informed that consequent upon the judgments of the High Courts of Kerala and Karnataka, the Government h as adopted a similar course in the Kerala and Karnataka Circles.