N. Abdul Basheer & Ors. Etc. Etc vs K.K. Karunakaran & Ors on 5 May, 1989 Equivalent citations: 1989 AIR 1624, 1989 SCR (3) 201, AIR 1989 SUPREME COURT 1624, 1989 LAB. I. C. 1540, (1991) 17 ATC 160, (1989) 2 JT 449 (SC), 1989 2 LABLJ 67, 1989 ALL CJ 406, 1989 SCC (SUPP) 2 344, (1989) 2 KER LT 3, (1989) 2 LAB LN 14, (1989) 2 CURLR 47, 1990 SCC (L&S) 153 Author: R.S. Pathak Bench: R.S. Pathak, Sabyasachi Mukharji PETITIONER: N. ABDUL BASHEER & ORS. ETC. ETC. Vs. RESPONDENT: K.K. KARUNAKARAN & ORS. DATE OF JUDGMENT05/05/1989 BENCH: PATHAK, R.S. (CJ) BENCH: PATHAK, R.S. (CJ) MUKHARJI, SABYASACHI (J) NATRAJAN, S. (J) CITATION: 1989 AIR 1624 1989 SCR (3) 201 1989 SCC Supl. (2) 344 JT 1989 (2) 449 1989 SCALE (1)1473 ACT: Civil Services: Kerala Excise & Prohibition Subordinate Service Rules, Special Rule 2--Promotion from post of Excise Prevention Officer to Second Grade Excise Inspector--Ratio 1:3 for graduates and non graduates--Prescription for--Held discriminatory and ultra vires. Constitution of India, 1950: Articles 14 and 16---Serv- ice conditions--Government should decide the consideration which underlie a policy that is formulated--Only when viola- tive of Constitution--Courts entitled to strike down the rules. N. Abdul Basheer & Ors. Etc. Etc vs K.K. Karunakaran & Ors on 5 May, 1989  1 HEADNOTE: The respondents, who were non-graduate Excise Preventive Officers in the Excise Department, had challenged in the High Court the amendment made to the original Special Rule 2 of the Special Rules for the Kerala Excise and Prohibition Subordinate Service whereby the ratio of 1:3 between gradu- ates and non-graduates was introduced in the matter of promotion from the category of Excise Preventive Officers to that of Second Grade Excise Inspectors. They had contended that as graduates and non-graduates were both regarded as eligible for promotion to the post of Second Grade Excise Inspectors. no differentiation should have been made between them when prescribing a rule of quota for promotion. The learned Single Judge allowed the writ and held that the amendment to Special Rule 2 was violative of Articles 14 and 16 of the Constitution. The State of Kerala and the private appellants, who were graduate Excise Preventive Officers and were holding the post of Second Grade Excise Inspectors. filed appeals. It was contended by them before the Division Bench that (i) the preference shown to gradu- ates in the matter of promotion represented the recognition of graduation as a standard of merit which would promote administrative efficiency, and (ii) the amendment to Special Rule 2 was the result of a historical background which justified preferential treatment. It was pointed out that as graduates and non-graduates had all along been 202 treated differently in the matter of promotion to the post of Excise Inspector, the classification brought about by amending Special Rule 2 could not be regarded as unreasona- ble. The Division Bench held that the amendment to Special Rule 2 of the Kerala Excise & Prohibition Subordinate Serv- ice Rules was ultra vires. Dismissing the appeals, this Court HELD: (1) The history of the evolution of the Kerala Excise and Prohibition Subordinate Service has shown no uniformity either in approach or in object. The history has varied with the circumstances prevailing before and after the reorganisation of the State. The conditions pertaining to the service. and respecting which the constitution of the service varied from time to time, showed fluctuations. A consistent or coherent policy in favour of graduates was absent. This is not a case where the cadre of officers was kept in two separate divisions. It was a single cadre, and they were all equal members of it. There is no evidence that graduate Preventive Officers enjoyed higher pay than non- graduate Preventive Officers.[208E-G] Mohammad Shujat All &. Ors. v. Union of India [1975] 1 SCR 449 and Col. A.S. Iyer v. V. Balasubramanyam, [1980] 1 SCC 634, distinguished. (2) The Conditions of employment and the incidents of serv- ice the instant case, recognise no distinction between N. Abdul Basheer & Ors. Etc. Etc vs K.K. Karunakaran & Ors on 5 May, 1989  2 graduate and non-graduate Officers and for all material purposes they are effectively treated as equivalent. The nature of the duties of Preventive Officers whether graduate or non-graduate was identical, and both were put to field work. Non-graduate Preventive Officers were regarded as competent as graduate Preventive Officers. There is no evidence of any special responsibility being vested in graduate Preventive Officers. [208H; 209A, E] State of Jammu & Kashmir v. Triloki Nath Khosa, [1974] 1 SCR 771; S.L. Sachdev v. Union of India, [1980] 1 S.C.R. 971, distinguished. H.H. Shri Swamiji of Shri Admar Mutt v. Commissioner, Hindu Religious & Charitable Endowment Department, [1980] 1 SCR 368 and Motor General Traders v. State of Andhra Pra- desh, [1984] 1 SCC 222, referred to. (3) Ordinarily, it is for the Government to decide upon the considerations which, in its judgment, should underlie a policy to be 203 formulated by it. But if the considerations are such as prove to be of no relevance to the object of the measure framed by the Government. it is always open to the Court to strike down the differentiation as being violative of Arti- cles 14 and 16 of the Constitution. [209D-E] (4) The learned Single Judge as well as the Division Bench were right in holding that the prescription of a ratio dividing the quota of promotion between graduate Preventive Officers and non-graduate Preventive Officers is invalid on the ground that it violates Articles 14 and 16 of the Con- stitution. [209B-C] JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1553 to 1556 of 198 1 etc. From the Judgment and Order dated 20.3.1981 of the Kerala High Court in W.P. Nos. 166, 177,223 and 243 of 1980. T.S. Krishnamurthy Iyer, G.L. Sanghi M.M. Abdul Khader, M.K. Ramamurthi, G. Vishwanatha Iyer, Ms. Shanta Vasudeavan, A.S. Nambiar, K.M.K. Nair, E.M.S. Anam, V.J. Francis, O.V. Radhakrishnan and N. Sudhakaran, for the appearing parties. The Judgment of the Court was delivered by PATHAK, CJ. These appeals by graduate Excise Inspectors are directed against the judgment and order dated 20 March, 1981 of the High Court of Kerala holding that the amendment to Special Rule 2 of the Kerala Excise & Prohibition Subor- dinate Service Rules is ultra vires. The writ petitions were filed by non-graduate Excise Inspectors alleging that the amendment to Special Rule 2 of the aforesaid Rules violates Articles 14 and 16 of the Constitution inasmuch as an invidious discrimination has been made between graduates and non-graduates by prescribing a ratio between them in the matter of promotion from the post of Excise Preventive Officer to that of Second Grade Excise Inspectors. As all the cases have proceeded on a common factual basis, we shall take up the appeal arising out of O.P. 3760 of 1978 for the purpose of this judgment. N. Abdul Basheer & Ors. Etc. Etc vs K.K. Karunakaran & Ors on 5 May, 1989  3 The petitioner in O.P. 3760 of 1978 joined the post of Excise Guard on 2 April, 1960. He was promoted on 12 Janu- ary, 1966 as Excise Preventive Officer. In the list of Preventive Officers in the Excise Department as on 1 August, 1970 he was ranked No. 131 while the third respondent was ranked at number 390. The third respondent was promoted earlier although he was junior to the petitioner. This was on the ground that he was a graduate and the petitioner was a non-graduate. The peti- tioner contended that as graduates and non-graduates were both regarded as eligible for promotion to the post of Second Grade Excise Inspectors no differentiation should have been made between them when prescribing a rule of quota for promotion. The writ petition was heard by a learned Single Judge, who held that the amendment to Special Rule 2 was violative of Articles 14 and 16 of the Constitution. It may be noted that the original Special Rule 2 of the Special Rules for the Kerala Excise and Prohibition Subordinate Service was amended by G.O.P.No. 79/78/TD dated 23 June, 1978 whereby the ratio 1:3 between graduate and non-gradu- ates was introduced into the Special Rules in the matter of promotion from the category of Excise Preventive Officers to that of Second Grade Excise Inspectors. The amendment was deemed to have come into force retrospectively from 9 Sep- tember, 1974 when the Special Rules were brought in. The learned Single Judge directed the respondents in the case to cause the Departmental Promotion Committee to be convened within two months to prepare a select list in order that promotions on a regular basis could be made. Against the judgment of the learned Single Judge in the different cases, appeals were filed before a Division Bench of the High Court. Two contentions were raised on behalf of the appellants, who in some of the appeals were the State of Kerala and the Deputy Commissioner of Excise, Board of Revenue, Trivandrum and in other cases were a number of private respondents in the original petitions and who held the post of Excise Inspector. Two contentions were raised by the appellants before the Division Bench of the High Court. It was contended that the preference shown to graduates by prescribing under the amended special Rule 2 the ratio 1:3 represents the recogni- tion of graduation as a standard of merit and, it was urged, officers with more merit in the post of Excise Inspectors would promote administrative efficiency. It was also con- tended that the amendment to Special Rule 2 is the result of an historical background which justifies preferential treat- ment. It was pointed out that as graduates and non-graduates had all along been treated differently in the matter of promotion to the post of Excise Inspector, the classifica- tion brought about by amending Special Rule 2 could not be regarded as unreasonable. It will be appropriate to set forth the historical background out of which the present controversy arises. From the year 1935, in the erstwhile State of Travancore prefer- ence was given to graduates in the matter of promotion. When the State of Kerala was constituted by the merger of the Travancore and Cochin areas with effect from 1 November, 1956 a rule was promulgated in the Excise Department of Kerala prescribing a ratio in the matter of promotion to the post of Excise Inspectors by an order dated 23 August, 1957. The Rule regulated appointments to posts of Guards, Preven- tive Officers and Second Grade Inspectors in the Excise Department. Clause (d) related to Second Grade Excise In- spectors and it provided: N. Abdul Basheer & Ors. Etc. Etc vs K.K. Karunakaran & Ors on 5 May, 1989  4 "(d) Second Grade Excise Inspectors: A margin of twentyfive per cent of the vacancies in the cadre of Second Grade Excise Inspectors will be left for being filled up by direct recruitment by the Public Service Commission of graduates ...... The remaining seventy five per cent will be filled up by promoting L.D. Clerks ....... and Preventive Officers on a 50:50 basis observing the ratio. of 3:1 between graduates and non-graduates in either case." Clause (d) applied to personnel of the Travancore--Cochin area. The officers allotted from Madras were governed by the Madras Rules pending the issue of common rules applicable to both. By reason of this Order 25 per cent of the post of Second Grade Excise Inspectors were to be filled up by direct recruitment, 37 1/2 per cent by promoting Lower Division Clerks and 37 1/2 per cent by promoting Preventive Officers. Within the promotion quota of Preventive Officers promotion was to be effected between graduates and non-graduates in the ratio of 3: 1. This rule applied to Travancore and Cochin personnel appointed prior to 1 November, 1956. After taking note of the situation in different parts of the State, the Government order dated 19th November, 1957 prescribed the ratio of 1:1 between graduates and non-graduates on an interim basis. It was mentioned there that the ultimate aim was to do away with the distinction between graduates and non-graduates in offices other than the Secretariat, the Public Service Commission and the High Court. Subsequently, however, it was clarified on 8 July, 1966 that the Order was intended to apply to ministerial posts only and not to executive posts such as those of Preventive Officers. The question of the applicability of the graduate and non-graduate ratio was examined by the High Court in Writ Petitions filed in 1972, and the High Court directed the Government to look into the matter and finalise the provisional promotion of Excise Inspectors accordingly. It was thereafter that Spe- cial Rules for the Kerala Excise and Prohibition Subordinate Service dated 9 September, 1974 were published. They provide for appointment to the posts of Excise Inspectors by direct recruitment, promotion from the category of Excise Preven- tive Officers and recruitment by transfer from among Upper Division Clerks employed in the Excise Department. The Rules did not provide for any graduate non-graduate ratio in the matter of promotion, apparently because the ratio had al- ready been provided earlier by the Government order dated 23 August, 1957. But meanwhile the High Court held that the Government order dated 23 August, 1957 could not be applied to those appointed after the formation of the State of Kerala. To fill up the vacuum in respect of appointments after 1 November, 1956 an order dated 4 October, 1974 was made applicable retrospectively to all appointments on or after 1 November, 1956 till the date of issue of the Special Rules for the Excise Subordinate Service. It adopted the ratio of 3:1 between graduates and non-graduate for promo- tion to the post of Second Grade Excise Inspectors for the entire State of Kerala, and it specifically provided that this graduate non-graduate ratio 3:1 would apply to the case of persons who had entered the Excise Department on or after 1 November, 1956, and that it would operate until the coming into force of the Kerala Excise and Prohibition Subordinate Service Rules. This was, however, challenged in the High Court and the High Court held that it was not open to the Government to apply the ratio of 3:1 by an executive order passed in 1974 and made retrospectively from 1 November, 1956 inasmuch as an executive order could not be given retrospective effect. N. Abdul Basheer & Ors. Etc. Etc vs K.K. Karunakaran & Ors on 5 May, 1989  5 There was, therefore, no provision in law prescribing a graduate non-graduate ratio governing appointments made on and from 1 November. 1956. As has been stated Special Rules for the Excise Subordinate Service dated 9 September, 1974 had been published meanwhile. Spe- cial Rule 2 was amended with effect from 9 September, 1974, the date of commencement of the Special Rules, providing for a ratio of 1:3 between graduates and non-graduates as from 9 September, 1974. In consequence. while up to 9 September, 1974 there was no valid Rule in force applying a graduate non-graduate ratio for promotion, there was a rule intro- duced in 1978 by amendment to the Special Rules prescribing a ratio from 9 September, 1974 onwards. The gap between 1 November, 1956 and 9 September, 1974 was sought to be filled thereafter by an Order dated 6 March, 1981 which provided that the appointment of Excise Inspectors during the period from 1 November, 1956 and ending 8 September, 1974 from among Clerks and Preventive Officers who have entered serv- ice on or after 1 November, 1956 would be made in the ratio of 1:1 between Clerks and Preventive Officers. simultaneous- ly observing the ratio 01' 3: l was observed between gradu- ates non-graduates. 'The Rule was deemed to have into force from 1 November, 1956. It will thus be evident that in the case of Preventive Officers appointed on or after 1 November, 1956, the gradu- ate non-graduate ratio of 3:1 was observed between 1 Novem- ber, 1956 and 8 September, 1974, and it became 1:3 from 9 September, 1974 onwards. The plea of the non-graduate Preventive Officers that there should be no preference in favour of the graduate officers was accepted, as we have seen, by the learned Single Judge and upheld in appeal by the Division Bench of the High Court. In these appeals by graduate Excise Inspectors, it is contended that there was good and substantial reason for maintaining the ratio between graduate and non-graduate Officers, and the history of the evolution of the service supported the maintenance of such ratio, and that the High Court proceeded erroneously in assuming that the observance of the ratio between graduates and non-graduates produced an invidious discrimination violative of Arts. 14 and 16 of the Constitution. We are referred to Mohammad Shujat Ali & Ors. etc. v. Union of India & Ors. etc., [1975] 1 SCR 449 where this Court upheld the differentiation between graduate supervisors and non-graduate supervisors for the purpose of promotion as Assistant Engineers. But it is clear that this was on the ground that the two categories of supervisors had been kept distinct and apart under the Cadre Rules from the beginning, with different pay scales and different treatment for the purpose of promotion. Reference was also made of State of Jammu & Kashmir v. Triloki Nath Khosa & Ors., [1974] 1 SCR 771, but it was held there that having regard to the object of achieving administrative efficiency in the. Engineering Service it was a just qualification to maintain a distinction between Assistant Engineers who were degree holders and those who were merely diploma holders. In S.L. Sachdev & Anr. v. Union of India & Ors., [1981] 1 SCR 971 again the discrimination between UDCs drawn from Audit Offices and other UDCs in the matter of the eligibility qualification for promotion was justified on the basis that the one enjoyed greater experience and that the distinction based on length of service was directly related to the object of the classification. In Col. A.S. Iyer and Others v.V. Balasubramanyam and Others, [1980] 1 SCC 634 upon which reliance has been placed by the Appellants, the recruits were from two different sources which had not completely fused into one integrated service but were instead allowed to maintain their separate identity, and regard was had N. Abdul Basheer & Ors. Etc. Etc vs K.K. Karunakaran & Ors on 5 May, 1989  6 to their basic functional character, operational capabilities and 'futuris- tic' uses to support the differential treatment between military engineers and civilian engineers. H.H. Shri Swamiji of Shri Admar Mutt, etc. v. The Commissioner, Hindu Reli- gious & Charitable Endowments Department & Ors., [1980] 1 SCR 368 is a case where we find it difficult to see any argument in favour of the appellants, for the passage there- in to which our attention has been drawn specifically al- ludes to the circumstance that the passing of time results in altering a fact situation which has the consequence of wearing out the basis on which the differentiation is found- ed. So also in Motor General Traders and Anr. v. State of Andhra Pradesh & Others, [1984] 1 SCC 222 it was observed by this Court that an exemption provision initially valid could become discriminatory where with the passage of time the nexus with the object did not survive any longer.. We have also heard submissions made by learned counsel for the appellants in Civil Appeals Nos. 1554 and 1556 of 1981, and they have elaborated on the points raised by learned counsel in Civil Appeal No. 1553 of 1981 with some differences of nuance and emphasis. In essence, the conten- tion remains the same. It seems to us that the history of the evolution of the Kerala Excise and Prohibition Subordinate Service has shown no uniformity either in approach or in object. The history has varied with the circumstances prevailing before and after the reorganisation of the State on 1 November, 1956. Originally when more emphasis was laid on the induction of graduate the ratio of graduate to non-graduate officers was maintained at 3: 1. But from 9 September, 1974 the ratio was changed inversely to 1:3. More non-graduates were now in- ducted into the Service. The trend shows, if anything, that it ran in favour of absorbing more non-graduates. The condi- tions pertaining to the service, and respecting which the constitution of the service varied from time to time, showed fluctuations. A consistent or coherent policy in favour of graduates was absent. This is not a case where the cadre of officers was kept in two separate divisions. It was a single cadre, and they were all equal members of it. There is no evidence that graduate Preventive Officers enjoyed higher pay than non-graduate Preventive Officers. The High Court has noted that the nature of the duties of Preventive Offi- cers whether graduate or non-graduate was identical, and both were put to field work. Non-graduate Preventive Officers were regarded as competent as graduate Preventive Officers. There is no evidence of any special responsibility being vested in graduate Preventive Officers. Once they were promoted as Excise Inspectors there was no distinction between graduate and non-graduate Excise Inspectors. In our opinion the learned Single Judge as well as the Division Bench are right in holding that the prescription of a ratio dividing the quota of promotion between graduate Preventive Officers and non-graduate Preventive Officers is invalid on the ground that it violates Arts. 14 and 16 of the Constitution. The other contention raised before the High Court, namely that the ratio 1:3 between graduates and non-gradu- ates is supportable on the ground that the recognition of graduation is recognition of merit, and that more merit in the post of Excise Inspectors would be conducive to better administrative efficiency, is shortly disposed of. Ordinari- ly, it is for the Government to decide upon the considera- tions which, in its judgment, should underlie a policy to be formulated by it. But if the considerations are such as prove to be of no relevance to the object of the measure framed by the Government it is always open to the Court to strike down the differentiation as being violative of Arts. 14 and 16 of the Constitution. In the present case, we have already commented on the circumstance that the conditions of employment and the incidents of service recognise no dis- N. Abdul Basheer & Ors. Etc. Etc vs K.K. Karunakaran & Ors on 5 May, 1989  7 tinction between graduate and non-graduate Officers and that for all material purposes they are effectively treated as equivalent. Accordingly, this contention must also be rejected. In the result, the appeals fail and are dismissed but there is no order as to costs. R.S.S. Appeals failed. N. Abdul Basheer & Ors. Etc. Etc vs K.K. Karunakaran & Ors on 5 May, 1989  8