Case: State Of Jammu &amp; Kashmir Vs. Triloki Nath Khosa &amp; Ors

8. Respondents, who are Diploma Holders in Engineering, filed in the High Court of Jammu and Kashmir a petition under Article 226 of the Constitution to challenge the validity of certain Service Rules framed by the Government of Jammu and Kashmir. A Learned Single Judge dismissed the petition but in appeal a Division Bench of the High Court took the view that the impugned rules were violative of Article 14 and 16 of the Constitution. The correctness of that view is challenged by the State of Jammu and Kashmir in this appeal by special leave.9. Respondents, who are serving in different branches of the Engineering Service of the appellants, were appointed as Assistant Engineers between 1960 and 1966 by promotion from the Subordinate Engineering Service. Their conditions of service were then governed by the rules published under Order No. 1328-C of 1939. Those rules, to the extent material, readfollowing rules prescribing the procedure relating to recruitment to the gazetted service are sanctioned:xx xx xx(3) Special qualifications: - Under Rule 18 of the Kashmir Civil Services Rules (General), the following special qualifications are prescribed in the case of candidates for direct recruitment or recruitment by transfer, as the case may be, to the services mentioned below:KASHMIR ENGINEERING SERVICECategory 2 (Assistant of Class II. Engineer).Direct**Degree in Civil Engineering of any recognised University.By transfer: (i) Degree or Diploma in Civil Engineering of any recognized University or Upper Subordinates Diploma of any recognized Colleges of Engineering and(ii) Service as a Supervisor for a period of not less than 5 years on duty.Class III Ground Engineer.Direct**Certificate of Ground Engineering prescribed by the Government ofELECTRICAL SERVICECategory 2 (Assistant of Class II. Engineering of Electrical Engineer).Direct**(i) Degree in Electrical Engineering of any recognized University, and(ii) Practical training in an Electrical Power Station.By transfer: (i) Degree of Diploma in Electrical Engineering of any recognised University and(ii) Practical experience in an Electrical Power Station.The rules further provided that appointments by transfer (that is, by promotion) to the cadre of Divisional Engineers (now known as Executive Engineers) could be made only from the cadre of Assistant Engineers. Promotions to the cadre of Assistant Engineers could, in turn, be made only from the cadre of Supervisors in the Subordinate Service. Recruitment by transfer was to be made "on the basis of merit, ability and the previous record of the candidates, seniority being considered only in case of equality of merit, ability and excellence of record. The scale of pay admissible to the Assistant Engineers was 300-20-500.11. In 1962, the appellants undertook a general revision of pay scales and framed "Jammu and Kashmir Civil Services (Revised Pay) Rules, which were gazetted on August 6, 1962. Rule 12 divided the Assistant Engineers into two categories, datewise. Those appointed prior to August 1, 1960 were placed in Grade I while those appointed subsequently were placed in Grade II, regardless of whether appointments to the posts of Assistant Engineers were made directly or by promotion and whether the incumbents held a degree or a diploma. Those in Grade I were put in the pay scale of 300-700 while those in Grade II were put in the scale of 250-600. Officers in Grade II were entitled to go into Grade I after completing two years service, subject to the availability of vacancies.12. A further revision of pay scales was effected under the "Jammu and Kashmir Civil Services (Revised Pay) Rules, 1968 which were gazetted on February 27, 1968. Under R. 10(IIB) (i), Assistant Engineers were granted a new pay scale of Rs. 300-30-540-EB-35-610-QB-35 700, but it was provided that the "QB at Rs. 610/- will not be crossed by Assistant Engineers with Diploma Course.. This rule was challenged by the respondents in so far as it denied to them an opportunity to cross the qualification bar.13. Then came the "Jammu and Kashmir Engineering (Gazetted) Service Recruitment Rules, 1970, gazetted on October 12, 1970. These rules provide for appointments to the gazetted posts in various branches of the Engineering service of the appellants and supersede the old rules on the subjects. By Rule 3 (f) promotion is defined to mean promotion from one class, category or grade to another class, category or grade on the basis of merit and efficiency, seniority being considered only when merit was equal. Under the Schedule annexed to these Rules, recruitment to the cadre of Executive Engineers and above was to be made only by promotion. But as regards promotion to the posts of Executive Engineers, and to those only, it was provided that only those Assistant Engineers would be eligible for promotion who possessed a bachelors degree in engineering or held the qualification of A.M.I.E., Sections A and B and who had put in at least 8 years service in the J and K Engineering (Gazetted) Service. This is the second of the two Rules impugned in this appeal.

Reasoning: While striking a balance between the long hunger for equal chance of the lowlier and the disturbing concern of the community for higher standards of performance, the State should not jettison the germinal principle of equality altogether. The dilemma of democracy is as to how to avoid validating the abolition of the difference between the good and the bad in the name of equality and putting to sleep the constitutional command for expanding the areas of equal treatment for the weaker ones with the dope of special qualifications measured by expensive and exotic degrees. These are perhaps meta-judicial matters left to the other branches of Government, but the Court must hold the Executive within the leading strings of egalitarian constitutionalism and correct, by judicial review, episodes or subtle and shady classification grossly violative of equal justice. That is the heart of the matter. That is the note that rings through the first three fundamental rights the people have given to themselves.5. Mini-classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality. If in this case Government had prescribed that only those degree holders who had secured over 70% marks could become Chief Engineers and those with 60% alone be eligible to be Superintending Engineers or that foreign degrees would be preferred we would have unhesitatingly voided it.6. The role of classification may well recede in the long run, and the finer emphasis on broader equalities implicit in the concluding thought of the leading judgment will abide. The decision in this case should not - and does not - imply that by an undue accent on qualifications the Administration can cut back on the larger tryst of equalitarianism or may hijack the founding and fighting faith of social justice into the enemy camp of intellectual domination by an elite. The court, in extreme cases, has to be the sentinel on the qui-vive.Thus, it is no part of the appellants burden to justify the classification or to establish its constitutionality.Formal education may not always produce excellence but a classification founded on variant educational qualifications is, for purposes of promotion to the post of Executive Engineer, to say the least, not unjust on the face of it and the onus therefore cannot shift from where it originally lay.26. Respondents have assailed the classification in the clearest terms but their challenge is purely doctrinaire Academic or technical qualification can be germane only at the time of initial recruitment; for purposes of promotion efficiency and experience alone must count - this is the content of their challenge. The challenge, at best, reflects the respondents opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view.But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents is not to be preferred. Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service; and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasonable basis, it has to be upheld.27.Our reason for saying this is to emphasize that the respondents ought to have furnished particulars as to why, according to them, the classification between diploma-holders and degree-holders is not based on a rational consideration having nexus with the object sought to be achieved. In order to establish that the protection of the equal opportunity clause has been denied to them, it is not enough for the respondents to say that they have been treated differently, from others, not even enough that a differential treatment has been accorded to them in comparison with others similarly circumstanced. Discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis. It was therefore incumbent on the respondents to plead and show that the classification of Assistant Engineers into those who hold diplomas and those who hold degrees is unreasonable and bears no rational nexus with its purported object.Rather than do this, the respondents contended themselves by propounding an abstract theory that educational qualifications are germane at the stage of initial recruitment only.It is transparent from this analysis that till about 1968 there was a dearth of Engineering graduates. In 1962. the ratio between graduates and diploma-holders was 1:2. In 1968, it became almost 2:1 and in 1970 the position remained more or less unchanged. The appellants were entitled to take into account this spurt in the availability of persons with higher educational qualifications for manning next higher post of promotion. In fact, it may not be overlooked, that even under the recruitment rules of 1949 graduates in Civil Engineering were alone eligible for direct appointment as Assistant Engineers in the Kashmir Engineering Service. Only departmental promotions could be made from amongst diploma-holders and that too if they had put in 5 years service in the cadre of Supervisors. There is therefore no substance in the contention that the record sheds no light on why a change was thought necessary in a system that had stood the test of time. In 1968 itself when there was a proliferation in the ranks of graduates, an attempt was made which was later rectified, to offer a higher incentive to graduates by the placement of a qualification bar. We are not called upon to adjudge its validity for reasons already mentioned but it is obvious that the impact of the changing pattern had to receive its due recognition.s argument, as presented, is attractive but it assumes in the Court a right of scrutiny somewhat wider than is generally recognised. Article 16 of the Constitution which ensures to all citizen equality of opportunity in matters relating to employment is but an instance or incident of the guarantee of equality contained in Article 14. The concept of equal opportunity undoubtedly permeates the whole spectrum of an individuals employment from appointment through promotion and termination to the payment of gratuity and pension. But the concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say that those who are similarly circumstanced are entitled to an equal treatment.Since the constitutional code of equality and equal opportunity is a charter for equals equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class. A classification of employees can therefore be made for first identifying and then distinguishing members of one class from those of another.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 and Diploma-holders rests on any unreal or unreasonable basis. The classification, according to the appellant, was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly correlated 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 presence 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.The seniority list of January 1, 1971 shows how very unreal the argument is that the qualification rule not having been extended to the higher echelons of service, it can bear no nexus with the attainment of administrative efficiency in a comparatively lower hierarchy of Assistant Engineers. On Jan 1, 1971 which was soon after the publication of the 1970 rules there were 6 persons in the cadre of Superintending Engineers all of whom except one, are graduates. The one at the top is an L.E.E. but he entered service in 1939 and must now be quite on the verge of retirement. There is therefore but slender chance, that a non-graduate could climb into the top position of a Chief Engineer, which post can, under the rules of 1970, be filled only by promotion from amongst Superintending Engineers. Promotion to the cadre of Superintending Engineers can be made only from amongst Executive Engineers and the Seniority list shows that out of 22 Executive Engineers, 19 are graduates and only 3 are diploma-holders. Out of the 19, the first 15 according to seniority are all graduates so that the chances of a diploma-holder being promoted as a Superintending Engineer are fairly remote. With the new rules coming into force, all Executive Engineers will after October 12, 1970, be appointed from amongst graduates in the rank of Assistant Engineers and therefore the cadre of Executive Engineers will soon consist of graduates exclusively. The Governor was entitled to give weight to these practical considerations and to restrict the operation of the impugned rule to cases where their application was imperative. Dealing with practical exigencies, a rule-making authority may be guided by the realities of life, just as the legislature, while making a classification "is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be theThus, all that Roshan Lals case, (1968) 1 SCR 185   = (AIR 1967 SC 1889  ) lays down is that direct recruits and promotees lose their birthmarks on fusion into a common stream of service and they cannot thereafter be treated differently by reference to the consideration that they were recruited from different sources. Their genetic blemishes disappear once they are integrated into a common class and cannot be revived so as to make equals unequals onceare therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes 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 and must be upheld.t we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good government and excellence and equality are not friendly bed-follows. A pragmatic approach has therefore to be adopted in order to harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment: what after all is the operational residue of equality and equal opportunity?