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

2. On the State of Uttaranchal (now Uttarakhand) being carved out of the State of Uttar Pradesh, an emergent need was felt for appointing inter alia JEs in different departments of the State and thus, an advertisement was issued on 27.11.2001, inviting applications on behalf of the Public Works Department, Irrigation Department, Rural Engineering Service, Small Irrigation Department, Agriculture Department, District Village Development Agency and Panchayati Raj Department for the said purpose. The minimum qualification provided was for a Diploma in Civil/Electrical/Mechanical/Agriculture Engineering. We are, at present, concerned with the Irrigation Department, where 200 posts were advertised for. These posts were filled in by both, the Diploma-holders and the Degree-holders.3. In order to govern the service conditions of the Engineers in the Irrigation Department, the Uttaranchal Service of Engineers (Irrigation Department) (Group ‘B?) Rules, 2003 (hereinafter referred to as the ‘said Rules?) were notified on 18.2.2003 by the State Government, exercising power under Article 309 of the Constitution of India (hereinafter referred to as ‘the Constitution?). The said Rules provided for recruitment to the next higher post, inter alia to the post of AE (Civil), through the process of 50% by promotion from the JEs and the balance 50% through direct recruitment for which the qualification was, inter alia, a Degree in Engineering. In this 50% by promotion, there was a further break up provided, i.e., 40% was to be through the normal route, on the basis of seniority, subject to rejection of unfit and the remaining 10% of the promotion quota was given to accelerated promotion. Out of this 10% accelerated promotions, 2.67% was meant for certain categories, with which we are not concerned, while 7.33% was meant for JEs (Civil) holding a Degree in Civil Engineering with three (3) years? service, whereas normal promotion required a minimum service of ten (10) years. An amendment was brought into force on 4.12.2004, which sought to change the ratio of the appointment to the post of inter alia AE (Civil), thereby reducing the direct recruitment quota to 40% and increasing the promotion quota to 60%. The result was that the normal promotion quota was made 50% and the additional 10%, in a sense, was meant for accelerated promotion, as in any case the educational qualifications for direct recruitment was a Degree in Civil Engineering and the accelerated promotion was based on a Degree in Civil Engineering as well. 50% quota for normal promotion was, thus, incorporated instead of the earlier 40%.4. The effect of this was that persons who were holding a Degree in Engineering were entitled to be considered for promotion as AEs with only three (3) years? service, as against the requirement of ten (10) years? service under normal promotion, but this accelerated promotion was confined to 7.33%.5. We have already stated that the effect of reduction in the direct recruitment quota, from 50% to 40%, effectively meant that the 10% reduction in quota of direct recruitment, for which a Degree is the essential qualification, was allotted to accelerated promotion, so as to ensure that the normal promotion quota without the accelerated promotion is maintained at 50%.6. The Diploma-holders in the post of JEs felt aggrieved as it would result in some of their juniors, who had Degrees, being promoted earlier and, thus, on their ultimate promotion to the post of AE, would rank senior to them. This was also stated in the context of the fact that for further promotions from AE upwards, the essential qualification was only a Diploma, without any quota or accelerated promotion being carved out for Degree holders. These would be all promotion posts without any direct recruitment.7. The aforesaid gave rise to writ proceedings being filed by the Diploma-holders before the Uttarakhand High Court, and in terms of the impugned order dated 25.8.2011, this accelerated promotion quota was struck down as violative of Articles 14 & 16 of the Constitution, and certain other directions were issued to work out equities on account of the promotions which may have already been made. There are also some other connected matters, which we will come to later, because they are in a narrower compass and we have taken the broad contours of the dispute from the main matter in which the judgment was delivered, i.e., Civil Appeal No.10194/2013.8. The impugned order was, however, stayed, while issuing notice on 2.4.2012. Subsequent leave was granted and this interim order was maintained. The result has been that for these last eight (8) years, also, the Rules have operated as they are.On the scrutiny of the parameters set out in para 30 of the impugned judgment, the opinion of the High Court is based on the fact that since the required qualification for appointment to the feeder post was only a Diploma, the Rules governing the feeder post did not make any distinction between a Diploma-holder and a Degree-holder, and the fact that any of the persons was holding a Degree could not be said to be of significance. Not only that, there was no bar of a higher qualification to the next higher post, where both, the Degree-holders and the Diploma-holders could be promoted. The requirement of a Degree was only for direct recruitment to the post of AEs. Thus, it was opined that the Rules could not say that the experience of a Degree-holder shall be lesser than the experience of a Diploma-holder, for promotion to the next higher post of AE. Further, it was observed that the Rules could not prescribe a quota for Degree-holders in the feeder post as there was no intelligible differentia, nor object sought to be achieved by the aforesaid.13. The private respondents who are the Diploma-holders have naturally supported the aforesaid view, which is sought to be assailed by the appellants/State of Uttarakhand.

Reasoning:
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.