Judgment Case ID: 4306

Judgment:
ition No. 267 of 1979 (Under Article 32 of the Constitution) E. X. Joseph and N. section Das Bahl for the Petitioners. L. N. Sinha	 Att. of India and Hardayal Hardy for RR 1 to 4. section L. Aneja for RR 5 10 and 13. The Judgment of the Court was delivered by CHANDRACHUD	 C. J. This is a Writ Petition under Article 32 of the Constitution by which the petitioners ask for an appropriate writ quashing the orders dated May 29	 1965 and May 16	 1975 issued by Respondent 2	 the Director General of Posts and Telegraphs	 New Delhi	 and for striking down the provisions in Col. 10 of the Schedule to the Recruitment Rules	 1969. Petitioner 1 joined the Posts and Telegraphs Audit Office of the Government of India at Delhi on July 31	 1956 as a Lower Division Clerk. In 1961 he qualified in the departmental examination for promotion as an Upper Division Clerk. On May 4	 1962 he joined the Savings Bank Control Organisation and Savings Bank Internal 974 Check Organisation (SBCO ICO)	 as an Upper Division Clerk. Petitioner 2 joined the P and T Audit Office at Madras on June 3	 1950 as a Lower Division Clerk. On passing the departmental examination he was promoted as an Upper Division Clerk on September 10	 1958. He joined SBCO ICO on April 1	 1963 in the same capacity. He is due to retire on October 31	 1980. Respondent 1 to the Writ Petition is the Union of India	 Respondent 2 is the Director General of P & T and Respondents 3 and 4 are the Post Master Generals of the Delhi Circle and the Tamil Nadu Circle respectively. Respondents 5 to 13	 though junior to Petitioner 1 in the Delhi Circle	 have been promoted as Selection Grade Clerks/Head Clerks in supersession of him. Respondents 14 to 47	 though junior to Petitioner 2 in the Tamil Nadu Circle	 have been promoted as Selection Grade Clerks/Head Clerks in supersession of him. The petitioners	 in effect challenge their supersession to the post of Selection Grade Clerks/Head Clerks. Until the year 1961	 the Savings Bank work of the post office was under the supervision and control of the Indian Audit and Accounts Department of which the Comptroller and Auditor General of India is the Head. The branches of the Indian Audit and Accounts Department doing the Savings Bank work and the work of auditing P & T accounts were called P & T Audit Offices. The Government of India having decided that the Savings Bank work should be taken over by the P & T Department	 the audit offices were relieved of that responsibility by stages during the years 1961 to 1964 and a new Organisation called the Savings Bank Control Organisation and Savings Bank Internal Check Organisation (SBCO ICO) was created on May 4	 1962. With the setting up of that organisation	 volunteers were given the option of joining it. Amongst those who were thus invited to opt for service in the new Organisation were Upper Division Clerks in the Audit Offices	 Lower Division Clerks who had qualified for promotion to the Upper Division Clerks ' cadre in the audit offices	 employees under the Post Master General and lastly those from amongst the time scale clerks in the P & T Accounts Organisation. Employees belonging to the aforesaid departments who opted for service in the new Organisation were transferred thereto in the interest of public service. In the audit department	 10% of the sanctioned strength of the posts of Upper Division Clerks were in the Selection Grade and promotion to those posts was made on the basis of seniority cum fitness. By a letter dated May 15	 1964 the P & T Board informed all the Heads of Circles that the sanction of the President was obtained 975 to the conversion of 10% posts in the cadre of UDCs in the SBCO ICO into Selection Grade UDCs. But	 by the impugned letter No. 56/4/65 SPB I dated May 29	 1965 addressed to all Heads of P & T Circles	 the Director General	 Posts and Telegraphs modified the policy of reservation of 10% of the posts in the cadre of UDCs in the Selection Grade by directing	 that the total number of Selection Grade posts available for the UDCs who came from the Audit Offices should be 10% of the total number of Audit office UDCs working in any particular Circle of the organisation. Thus	 whereas	 under the original intendment	 if the total number of posts in the cadre of UDCs in the new Organisation was 100	 10 posts were available in the Selection Grade for all the UDCs	 under the new policy if	 out of the total strength of 100	 40 posts were occupied by UDCs who had come from the Audit Offices	 they would	 as amongst themselves	 be entitled to four posts only in the Selection Grade. Under the new dispensation	 the test is how many UDCs from Audit Offices are working in the Circle	 not what is the total strength of the UDC cadre in the Circle. On January 22	 1968	 the President of India	 acting in exercise of his powers under Article 309 of the Constitution	 framed rules regulating the recruitment to the cadre of UDCs and other posts in the SBCO ICO. The rules are called "The Indian Posts & Telegraphs (Clerks in Savings Bank Control and Internal Check Organisation) Recruitment Rules	 1969". Brevity is obviously indicated and	 for its sake	 we will refer to these rules as the Recruitment Rules	 1969. Rule 4 provides that the method of recruitment to the various posts	 the age limit	 qualifications etc. shall be as specified in Columns 4 to 12 of the Schedule provide to the Rules. Column 4 of the Schedule provides that the post of Selection Grade UDCs is a non Selection post. Column 9 provides that recruitment of Selection Grade UDCs will be exclusively by promotion. Column 10 provides that the appointment to the Selection Grade will be made from amongst Upper Division Clerks with 10 years of service in that grade in case of Audit office Staff	 or with five years service in that grade in case of other Upper Division Clerks. This is one of the provisions of the Rules which is challenged as being discriminatory. On the basis of the recommendations made by the Third Pay Commission	 the Supervisory Cadre in the SBCO ICO was reorganised with a view to providing better promotional avenues to the members of the staff. Accordingly	 the Director Gerneral issued instructions by his letter dated April 10	 1975 that the existing provision relating to the Selection Grade Posts will be replaced by the creation of a cadre of Head Clerks and that the number of posts in the said 976 cadre of Head Clerks will be fixed at 20 per cent of the posts of UDCs. By another letter dated May 16	 1975 the Director General clarified this position by saying: "Under the new scheme the audit office UDCs will get the posts of Head Clerks to the extent of 20% of their strength instead of 10% as at present. The remaining posts of Head Clerks will go to the non audit UDCs. " This is the other of the two impugned letters. The petitioners contend that the classification of the Upper Division Clerks for the purpose of promotion to the Selection Grade/Head Clerks Cadre	 on the basis of the sources from which they are drawn and the limiting of the promotional posts available to them to 10% in the case of Selection Grade Posts and 20% in the case of the posts of the Head Clerks has resulted in stagnation of the UDCs. 	 who joined the new organisation from the Audit Offices. The petitioners ' grievance is that UDCs. who joined that organisation from the P & T offices and who were junior to them in terms of the length of service in the U.D.C. cadre have been already promoted to the Selection Grade/Head Clerks cadre. This classification of the U.D.Cs. of the SBCO ICO into two groups for the purpose of promotion on the basis of the sources from which they are drawn is challenged by the petitioners as discriminatory	 arbitrary and unreasonable. According to them	 since the promotional post is a non selection post	 the only criterion for promotion from amongst the U.D.Cs. in the SBCO ICO can be the length of service in the cadre of U.D.Cs.	 subject to fitness. Shri E. X. Joseph	 who appears on behalf of the petitioners has made a very neat argument	 focussing with the help of telling illustrations the injustice which has been done to the petitioners and to those similarly situated. The learned Attorney General who appears for the Union of India and Shri Aneja who appears for the U.D.Cs. drawn from the other departments	 have attempted to meet Shri Joseph 's argument but we are left in no doubt that the policy adopted by the Union of India is discriminatory and unreasonable. Though it appears prima facie that U.D.Cs. in SBCO ICO were drawn from four different sources	 the sources are really two and not four. U.D.Cs. in that organisation were appointed from amongst those who were previously serving in the Audit Offices and secondly from amongst the other employees of the P & T Department. The recruitment rules of 1969 make a classification amongst the U.D.Cs. by providing that in so far as the U.D.Cs. drawn from the 977 Audit Offices are concerned they will be eligible for promotion to the Selection Grade/Head Clerks Cadre after they put in a service of 10 years in the new organisation. In regard to the U.D.Cs. drawn from the P and T Department	 the rules provide that they will be eligible for such promotion on completing five years ' service only. Bearing in mind that the posts in the Selection Grade/Head Clerks Cadre are non selection posts to which appointments are made by the test of seniority cum fitness	 that is the farthest limit to which classification of the U.D.Cs. for the purpose of promotion could be carried. It is difficult to appreciate the logic or the principle behind the direction that the Selection Grade Posts or the posts of Head Clerks which will be available to the U.D.Cs. drawn from the Audit offices will be determined on the basis of the existing strength	 at any given time	 of such Clerks in the particular circle. Since	 under the impugned directions	 the number of Selection Grade Posts/Head Clerks has to be 10% of the number of U.D.Cs. drawn from the Audit Offices	 no promotional opportunities at all will be available to them in certain circles in which less than 10 U.D.Cs. drawn from the Audit Offices are working. It is indisputable that	 according to the impugned directive	 there have to be at least ten persons drawn from the Audit Offices in a Circle	 in order that at least one promotional post may become available to them. We are informed	 which again is not disputed	 that in some small Circles	 less than 10 U.D.Cs. drawn from the Audit Offices are working in the new organisation. These persons	 for a purely fortuitous reason	 will be denied for ever all promotional opportunities. That seems to us wholly indefensible. Apart from the injustice in specific cases where U.D.Cs. drawn from the Audit Offices are attached to comparatively smaller Circles	 the classification made for the purpose of determining the promotional opportunities seems to us unreasonable and arbitrary. It is contended by the learned Attorney General that persons drawn from different sources were not integrated into 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 978 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. 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 General 's 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 vs Comptroller & Auditor General of India and the High Court of Karnataka in Krishnamurthy C.K. vs 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 vs The Director General of Posts and Telegraphs	 New Delhi and the High Court of Madras in V. section Rajagopalan vs post Master General seem to have rejected the writ petitions filed before them by persons similarly situated as the petitioners	 by holding that no 979 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. 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 Offices 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 Bank 's 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 980 Courts of Kerala and Karnataka	 the Government has adopted a similar course in the Kerala and Karnataka Circles. The Writ Petition thus succeeds partly. The petitioners will be entitled to their costs from the first respondent	 the Union of India. NKA Petition partly allowed.

Summary:
The Government of India created the Savings Bank Control Organisation and Savings Bank Check Organisation (SBCO ICO). Amongst those who were invited to opt for service in the said organisation were UDCs in the Audit Offices	 LDCs who had qualified for promotion to the UDC cadre in the Audit Offices	 employees under the Post Master General and those from amongst the Time Scale Clerks in the P & T Accounts Organisation. By a letter dated May 15	 1964 the P & T Board informed all the Heads of the Circles that the sanction of the President of India was obtained to the conversion of 10% posts in the cadre of UDCs in the SBCO ICO into Selection Grade UDCs. But	 by his letter dated May 29	 1965 addressed to all Heads of P & T Circles	 the Director General	 Post & Telegraphs modified the policy of reservation of 10% of the post in the cadre of UDCs in the Selection Grade by directing	 that the total number of Selection Grade Posts available for the UDCs who came from the Audit offices should be 10 of the total number Audit officer UDCs working in any particular circle of the Organisation. On January 22	 1968	 the Indian Posts & Telegraphs (Clerks in Savings Bank Control and Internal Check Organisation) Recruitment Rules	 1969 were framed regulating the recruitment to the cadre of UDCs and other posts in the SBCO ICO. Col. 10 of Item 3 of the Schedule to the Rules provides that the appointment to the Selection Grade will be made from amongst UDCs with 10 years of service in that grade in case of Audit Office Staff	 or with five years ' service in that grade in case of other UDCs. Later	 the Supervisory Cadre in the SBCO ICO was recognised. Creating a cadre of Head Clerks in place of the Selection Grade posts and fixing the number of posts in the said cadre at 20% of the posts of UDCs. By letter dated May 16	 1965	 the Director General however	 clarified the position by saying that "under the new scheme the audit office UDCs will get the post of Head Clerks to the extent of 20% of their strength instead of 10% as at present. The remaining posts of Head Clerks will go to the non audit UDCs". 972 The two petitioners who belonged to the P & T Audit Offices and had qualified the departmental examination for promotion as UDCs	 joined the SBCO ICO as UDCs. They challenged the classification of UDCs for the purposes of promotion to the Selection Grade/Head Clerks cadre on the basis of the sources from which they were drawn and the limiting of the promotional posts available to them to 10% in the case of Selection Grade post and 20% in the case of Head Clerk posts thereby resulting in promotion of their Juniors who had joined the organisation from the P & T Offices	 as discriminatory	 arbitrary and unreasonable. According to them the only criterion for promotion from amongst the UDCs in the SBCO ICO could be the length of service in the cadre of UDCs	 subject to fitness. The provision in Column 10 of Item 3 of the Schedule to the Recruitment Rules of 1969 was also challenged. The respondents argued that persons drawn from different sources were not integrated into a common service and therefore different rules of promotion could be applied to the two classes and that the directive of the Director General was aimed at further and better implementation of the Recruitment Rules. Partly allowing the petition. ^ HELD 1. The Directions issued by Respondent 2 by his letters dated May 16	 1975 and May 29	 1965 that UDCs drawn from the Audit offices will be eligible for promotion to the Selection Grade on the basis of 10% of the posts or to the Head Clerks cadre on the basis of 20% of the posts	 held by them in SBCO ICO are quashed. [979 E F] The petitioners and the other UDCs will be entitled equality to promotional opportunities. They 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. [979 F G] 2. The policy adopted by respondent 2 is discriminatory and unreasonable. Apart from the injustice in specific cases where UDCs drawn from the Audit Offices are attached to comparatively smaller circles	 the classification made for the purpose of determining the promotional opportunities seems unreasonable and arbitrary. Since under the impugned directions	 the number of Selection Grade/Head Clerks has to be 10% of the number of UDCs drawn from the Audit Offices	 no promotional opportunities at all would be available to them in certain circles in which less than 10 UDCs drawn from the Audit Offices are working. These persons	 for a purely fortuitous reason. will be denied for ever all promotional opportunities. That seems wholly indefensible. [976G	 977B F] 3. The duties	 functions and responsibilities of all the UDCs being identical	 there is no reason 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 conceivably 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. [977G H	 978A B] 973 Balakrishnan vs Comptroller & Auditor General of India	 1976 Kerala Law Times 401 & C. K. Krishnamurthy vs Director General P & T 	 affirmed. V. Subramanyam vs The Director General of Posts and Telegraphs	 New Delhi WP 3935/75 decided on 18th November 1978 & V. section Rajagopalan vs Post Master General WP 3796/75 decided on 24th November 1976	 reversed. 4.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. The Recruitment Rules of 1969 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. They only provide for classification on the basis of 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. [978B E] 5. The distinction made between the two classes of UDCs	 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 Bank 's 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. The provision in Col.10 of Item 3 of Schedule to the Recruitment Rules 1969 is therefore upheld. [979C E]