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

The material facts are not in dispute and may not be stated:Respondent No. 1 herein (original petitioner No. 1) was officiating as Deputy Engineer since May 16, 1955, in the P.W.D. Department of the then State of Bombay and he continued in service as such until on December 3, 1959, he was selected and appointed as a result of the competitive examination held by the Public Service Commission, to a post in B.S.E. Class II Service. Under the Engineering Service Rules, 1960 (hereinafter called 1960 Rules), a direct recruit is required to undergo training for a period not exceeding one year and thereafter to work on probation ase of an for a further period of one year. Since Respondent No. 1 had already worked as officiating Deputy Engineer, the initial period of one years training in his case was dispensed with and he was directly placede of a. On completion of his two years probation he was confirmed as Deputy Engineer in Class II with effect from December 3, 1961. Sometime in June, 1961, a Committee appointed by the State Government prepared a select list of Deputy Engineers for promotion as officiating Executive Engineers; but the case of Respondent No. 1 was not considered for the reason that he had not put in 7 years (reduced to 6 years in 1961) service requisite under Rule 7 (ii) for such promotion (hereinafter, for short, called eligibility service). The Governments stand was that in the case of Deputy Engineers directly recruited through a competitive examination held by the Public Service Commission, service, if any, rendered by then as officiating Deputy Engineers prior to their appointment to Class II (hereinafter calledpreselectionservice) could not be taken into account, in computing their eligibility service. The case of Respondent No. 1 herein was that this stand of the Government was wrong and, under the relevant Rules hispreselectionservice (from5 to) as officiating Deputy Engineer had to be tacked on to hisn service for calculating the requisite period of his eligibility service. When the next select list was prepared in the year 1963, Respondent No. 1 was included in that list and, in consequence, promoted as officiating Executive Engineer. Since then he has been working as such in the promoted rank2. Respondents Nos 2 and 3 herein (original petitioners Nos. 2 and 3) were promoted as Deputy Engineers on July 8, 1957, and September 28, 1957, respectively. They continued to work in that capacity till December 3, 1959, when they, too like Respondent No. 1, were directly recruited as Deputy Engineers in Class II Service as a result of the competitive examination held by the Public Service Commission. On Completion of their probationary period of two years, they were confirmed as Deputy Engineers on December 3, 1961. In their case, also, the Government did not count theirpreselectionservice from July 8, 1957 to December 3, 1959 for computing their eligibility service, for further promotion; and, in consequence, they were also not considered eligible for selection at the time of the preparation of thes of 1961, 1963 and for the subsequent years upto 1966. The Respondents (then petitioners) prayed for a writ of mandamus or any other appropriate writ or order directing the State Government to determine and settle their seniority in accordance with the provisions of Rule 8 (i) and (iii) of the Government Resolution dated April 29, 19603. The main ground taken in the petition before the High Court, was, that the action of the Government in excluding from computation the service rendered by the Respondents as officiating Deputy Engineers prior to their selection as Deputy Engineers Class II Service, was violative of Article 16 of the Constitution of India. The contention was that the rule of eligibility for promotion had not been uniformly applied to all Deputy Engineers inasmuch as in the case of person who were recruited to Class II by promotion, theirpreselectionservice as Officiating or Temporary Deputy Engineers was computed towards their eligibility service but the same treatment was denied to Deputy Engineers directly recruited4. In the counter filed on behalf of the State, it was averred that this distinction between the direct recruits and promotees in computing their eligibility service for further promotion was observed as a matter of deliberate policy. It was added that at the time of the preparation of the select list of Deputy Engineers fit to be promoted as Executive Engineers in 1965, the claims of officiating Deputy Engineers appointed subsequent to, were not considered; while the claims of directly recruited Deputy Engineers though appointed after November 1, 1956, were so considered because of the special provision for the latter category of Deputy Engineers as per Government. Resolution, dated 29th April, 1960. The Government therefore, felt that as the direct recruits were getting special treatment because of being direct recruits, they should not be allowed a further advantage of counting, for the purpose of further promotion, theirpreselectionservice towards the period of their eligibility service5. The High Court found that the differentiation in question made by the Government in the application of the Rules, had no reasonable nexus with the object of promotion: and the action of the Government was therefore clearly discriminatory and amounted to a denial of equal opportunity to directly recruited Deputy Engineers like petitioners Nos. 1 to 3. In the result, the High Court allowed the application of the present Respondents 1 to 3 and issued a writ of mandamus directing that their case. for promotion as officiating. Executive Engineers shall be considered on the basis that thepreselectionservice rendered by them as officiating Deputy Engineers prior to their direct recruitment as Deputy Engineers was liable to be taken into account in counting the minimum period of seven years service requisite for promotion as officiating Executive Engineers.6. In order to appreciate the controversy, it is necessary to notice briefly the history of these Engineering Services and the relevant rules which are appendages to various Government Resolutions passed from time to time. Originally, the Government of Bombay, in the Public Works Department passed a Resolution on, in pursuance of which Bombay Engineering Service consisting of Class I and Class II was constituted. The posts of Chief Engineer, Superintending Engineer and Executive Engineer were placed in Class I, while those of Deputy Engineers were put in Class II. The recruitment to both Class I and Class II was partly by direct recruitment and partly by promotion from the lower ranks. In 1939, further rules were framed under which recruitment to Class II Service was to be made either;(a) by nomination under Rule 11 under the guarantee given to the College of Engineering, Poona or(b) by promotion from the(i) Subordinate Engineering Service;(ii) Permanent and Temporary Supervisors and(iii) Temporary Engineers appointed on annual sanction7. On the 27th May 1947, the Government of Bombay withdrew its guarantee of certain appointments given to the students of the Engineering College, Poona; and thereafter, appointed a Committee (known as Gurjar Committee) to examine the question of recruitment to the Engineering Services and allied matters. In the meantime, the Government of Bombay made direct recruitment to Class I and Class II Service through competitive examination held by the Public Service Commission7. On the 27th May 1947, the Government of Bombay withdrew its guarantee of certain appointments given to the students of the Engineering College, Poona; and thereafter, appointed a Committee (known as Gurjar Committee) to examine the question of recruitment to the Engineering Services and allied matters. In the meantime, the Government of Bombay made direct recruitment to Class I and Class II Service through competitive examination held by the Public Service Commission8. Though the Committee made its recommendations in 1951, yet this provisional arrangement appears to have continued upto April 29, 1960, on which date, the Government of Bombay in the public Works Department passed a Resolution delineating the principles of recruitment to the Bombay Service of Engineers, Class I and Class II Shortly, thereafter the Bombay State was bifurcated; but the 1960 Rules continue to be applicable to the Engineering Services of the new State of Gujarat, to which the Respondents herein, were allotted9. By the Resolution of 1960, the existing Class I and Class II Services were continued. The appointments to both these Services are to be by direct recruitment through competitive examination held by the Public Service Commission and also by promotion in the ratio of 75: 25. As per Rule 2, the candidates appointed from either service have to be on probation for a period of two years; in the first instance as trainees for a period not exceeding one year, and then in a probationary capacity, ine of an for one year more. On satisfactory completion of the period of probation, the candidates recruited from both the Services are confirmed as Deputy Engineers in the cadre of Class II or as Assistant Engineers in Class I, as the case may be10. The provisions of 1960 Rules material for our purpose, are to be found in Rules 6, 7 and 8, which read thus:"6 (i) ... ...(ii) For absorption into Class I, a Class II Officer must be in the permanent Bombay Service of Engineers Class II cadre, should have at least 15 years service to his credit in Class IIin temporary and permanent capacities, and should be holding an officiating divisional rank, at the time of such absorption. On such absorption, the Class II Officers shall be confirmed as Executive Engineers(iii) ... ...7 (i) Since the percentages in the superior posts of direct Class I recruits and promotees from Class II is to be about 75 and 25, the number promotions from Class II in any year would be aboutd of the number of directly recruited Assistant Engineers confirmed as Executive Engineers during that year. Recruitments in the past, have, however been erratic and insufficient.... to Class I. In order to deal with such situations, the following rules shall be supplemental and exceptional to those in paragraph 6 above:(ii) As far as possible promotions as Officiating Executive Engineers shall beso made that the promotes under consideration from Class II has to his credit at least 6 years longer service than a promotee under consideration from Class I, subject as far as practicable, to the condition thata Class I Officershall not holda divisional rank at less than 4, and, aClass II Officer at less than 7 years serviceSubject to availabilities, and the above criteria, an attempt should be made to maintain the percentages, stated in paragraph 6 (i) above, between direct Class I and promoted Class II Officers in the total of permanent plus officiating superior posts(iii) and (iv) ...8 (i) Thel Posts in the Department are at present, manned by direct recruits to Bombay Service of Engineers Class II Cadre, Deputy Engineers confirmed from subordinate service of Engineers, the temporary Deputy Engineers recruited by the Bombay Public Service Commission, Officiating Engineers and similar other categories. These various categories are being complied into two lists only. (i) Bombay Service of Engineers Class II cadre of permanent Deputy Engineers and a List of officiating Deputy Engineers ... ... ...(ii) All direct recruitment of temporary Deputy Engineers have been stopped, further officiating vacancies will be manned from the rank of the subordinate Service of Engineers.....

Court's reasoning:
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.