DUA - (1.) THE Judgment of the court was delivered by-
(2.) OUT of the five petitioners in this petition under Article 32of the Constitution Kashmir! Lal, petitioner No. 5 having since retired, is378 no longer interested in the result of these proceedings. The claim of onlyfour petitioners thus survives for consideration. They are officiating clerks,Grade I, in the office of Deputy Chief Accounts Officer (Traffic AccountsBranch) Northern Railway. They were promoted from Grade II afterpassing the departmental qualifying examination described as Appendix 2examination. They claim that their seniority should be determined as fromthe date of their appointment as officiating clerks Grade I and not on thebasis of their position in the gradation list of Clerks, Grade II. Theirgrievance is that they were appointed as officiating clerks. Grade I, afterpassing the Appendix 2 examination long before Respondents 4 to 6 and 11but these four respondents are shown as senior to the petitioners on theground of their seniority in Grade II. The petitioners seek to supporttheir claim by relying on Articles 14 and 1.6 of the Constitution. Theseniority of the direct recruits to Grade I, the petitioners complain, is determined on the basis of their appointment, whereas the seniority of thepetitioners, who are promotees from Grade II to officiate in Grade I,continues to be determined on the basis of their seniority in Grade II.It is emphasised that both the direct recruits and the promotees, like thepetitioners, have to pass the Appendix 2 examination. But their seniorityis determined by different methods. It is further complained that Grade IIclerks who pass the qualifying Appendix 2 examination are not promotedimmediately. They have to wait till a vacancy occurs and even at thetime of filling the vacancy the seniormost qualified clerk is selected forpromotion without giving any preference to those who have qualified earlierin point of time. Again, when a permanent post falls vacant all the eligibleclerks in Grade II are considered at par without giving any credit or preference to those who have already officiated as Clerks, Grade 1. Ajuniorclerk. Grade II, qualifying earlier, according to the petitioners' grievance,continues to remain junior for the purpose of promotion and confirmation inthe permanent post in Grade I and a senior clerk, Grade II, qualifyinglater retains his seniority for this purpose. Similarly, in filling leave vacanciesit is complained that if a clerk is appointed to officiate in short term leavevacancy, then on the return of the incumbent of the post, instead of reverting the clerk so appointed to officiate, the juniormost according to the gradation list in Grade II, officiating in Grade I, is reverted even though hemay have qualified earlier than the former and may also have officiatedfor some time against a regular post in Grade 1. The petitioner's right ofequality before the law and equality of opportunity in matters of public,employment is stated thus to have been violated. The right of equality is guaranteed by Articles 14 to 16 of ourConstitution. The petitioners rely on Articles 14 and 16(1). Article 14 isan injunction to both the legislative and the executive organs of the State andother subordinate authorities not to deny to any person equality before thelaw or the equal protection of the laws. Article 16 is only an instance ofthe general rule of equality laid in Article 14. Sub-article (1) of Article 16guarantees to every citizen equality of opportunity in matters of publicemployment thereby serving to give effect to the equality before the lawguaranteed by Article 14. The equality of opportunity in the matter ofservices undoubtedly takes within its fold all stages of service from initialappointment to its termination including promotion but it does not prohibitthe prescription of reasonable rules for selection and promotion, applicableto all members of a classified group. Mere production of inequality is notenough to attract the constitutional inhibition because every classification islikely in some degree to produce some inequality. The State is legitimately379 empowered to frame rules of classification for securing the requisite standardof efficiency in services and the classification need not be scientifically perfector logically complete. In applying the wide language of Articles 14 and 16to concrete cases a doctrinaire approach should be avoided and the matterconsidered in a practical way, of course, without whittling down the equalityclauses. The classification, in order to be outside the vice of inequality,must, however, be founded on an intelligible differentia which on rationalgrounds distinguishes persons grouped together from those left out. Thedifferences which warrant a classification must be real and substantial andmust bear a just and reasonable relation to the object sought to be achieved.If this test is satisfied then the classification cannot be hit by the vice ofinequality. It is in the background of this broad principle that the petitioners' grievance is to be considered. The relevant provisions in the Indian Railways EstablishmentManual directly applicable to the petitioners' case may now be seen. Theyare contained in Paras 48 and 49, Ch. I, Section B and Paras 16 andand 20(b) of Ch. II. As the petitioners also rely upon Paras 17 to 19and 21 of Ch. II in support of the argument that Para 20(i) is discriminatory it is desirable to reproduce all these paragraphs. "48. The classes included in this group and the normal channel oftheir promotion are as under : JUDGEMENT_377_1_1970Image1.jpg Recruitment.-Initially in the grade of Clerks, Grade II. Direct recruitment for 20% vacancies in the grade of Clerks, Grade 1.Qualifications. - JUDGEMENT_377_1_1970Html1.htm Directly recruited Clerks, Grade I, will be on probation for oneyear and will be eligible for confirmation only after passing the pres-380cribed departmental examination in Appendix 2. Necessary facilitieswill be given to them to enable them to acquire a working knowledge ofthe rules and procedure. 49. Such of the Clerks, Grade II, as qualify in the departmentalexamination as prescribed in Appendix 2 or those who may have beenpermanently exempted from passing the said examination will be eligiblefor promotion as Clerks, Grade I, and sub-heads. They will be eligiblefor a minimum starting pay of Rs. 150.00 per month or will be grantedfour advance increments on promotion to Grade I after their pay hasbeen fixed under the ordinary rules. Promotion to the grade of Sub-Heads will be by seniority-cum-suitability."Chapter II "17. Subject to what is stated in Paragraphs 18 and 19 below,where the passing of a departmental examination or trade test has beenprescribed as a condition precedent to the promotion to a particularnon-selection post, the relative seniority of the railway servants passingthe examination/test in their due turn and on the same date or differentdates which are treated as one continuous examination, as the case maybe, shall be determined with reference to their substantive or basicseniority. 18. A railway servant who, for reasons beyond his control is unableto appear in the examination/test in his turn along with others, shall begiven the examination/test immediately he is available and if he passesthe same, he shall be entitled for promotion to the post as if he hadpassed the examination/test in his turn. 19. Seniority for promotion as Junior Accountants, Junior Inspectors ofStation or Stores Accounts.-Seniority for promotion to the rank of junioraccountant or junior inspector of Station or Stores Accounts should countentirely according to the date of passing the examination qualifying forpromotion to those ranks. Candidates who pass the examination in a yearare ipso facto senior to those who qualify in subsequent years irrespective oftheir relative seniority before passing the examination. In the case of staffof ex-Company Railways, who are exempted from passing the examination, the date on which they are declared fit for promotion to the rank ofAccountant or Inspector should be considered as the date of theirpassing. On receipt of the result of the above examination each railwayadministration should immediately hold a selection test of the candidates declared successful along with any eligible ex-Company or ex-State Railway Staff, who may be asked to appear before the selectionboard in accordance with the procedure laid down by the RailwayBoard from time to time. While the selection board will determine inthe case of the ex-Company or ex-State Railway staff, their suitabilityfor promotion as Accountant/Inspector before placing them on the penal,no candidate who has qualified in the said examination will be declaredineligible for promotion as a junior Accountant/Inspector, theselection board only assigning a suitable place to each such candidatein order of merit. The staff placed on the penal in any year will ranksenior to those empenalled in subsequent years. 20. Date of passing the departmental "' examinationi/ test to regulateseniority.-(a) Except as provided for in sub-paragraph (b) below,seniority of two or more railway servants, who pass the depart- 381mental examination/test on different dates, not treated as one continuousexamination, will be regulated entirely by the date of passing theexamination or test. (b) The seniority of Accounts Clerks, Grade I and Stock Verifiersis to be determined with reference to their substantive or basic seniorityin Grade II irrespective of the dates they qualify for promotion as GlerksGrade I by passing the examination prescribed for the purpose. 21. Seniority on promotion to non-selection posts.-Promotion to non-selection posts shall be on the basis of seniority-cum-suitabilitybeing judged by the authority competent to fill the post, by oraland/or written test or a departmental examination as considerednecessary and the record of service. The only exception to this wouldbe in cases where for administrative convenience, which should berecorded in writing, the competent authority considers it necessary toappoint a railway servant other than the seniormost suitable railwayservant to officiate in a short term vacancy not exceeding two monthsas a rule and 4 months in any case. This will, however, not give therailway servant any advantage not otherwise due to him." Appendix 2, in addition to the syllabus for the examination, provides : "3. The examination will be conducted by the Head of eachoffice, who will also decide the intervals at which it should be held.
(3.) (a) Normally no railway servant will be permitted to take theexamination more than three; but the Financial Adviser and ChiefAccounts Officer may in deserving cases permit a candidate to take theexamination for a fourth time, and, in very exceptional cases, theGeneral Manager may permit a candidate to take the examination forthe fifth and the last time. (b) No railway servant, who has less then six months' service in aRailway Accounts Office or who has not a reasonable chance of passingthe examination will be allowed to appear in the examination prescribed in this Appendix. In exceptional circumstances, the condition regarding six months'minimum service may be waived by the General Manager. (c) Temporary railway servants may be permitted to sit for theexamination but it should be clearly understood that the passing of thisexamination will not give them a claim for absorption in the permanentcadre. (d) A candidate who fails in the examination but shows markedexcellence by obtaining not less than 50% in any subject may be exempted from further examination in that subject in subsequent examination." It is quite clear that Para 49 does not confer any right to immediate promotion on those Grade II clerks who pass the qualifying Appendix 2 examination. The only benefit which accrues to them is that one hurdle is removedfrom their way and they become eligible for being considered for promotionto Grade 1. This promotion is governed by the test of seniority-cum-suitability. All those who qualify for promotion are treated at par for this purposeand they are grouped together as constituting one class. The fact that oneperson has qualified earlier in point of time does not by itself clothe him with382a preferential claim to promotion as against those who qualify later. Thisexamination is considered to be a continuous examination and as is clearfrom Para 17 success at this examination does not constitute the basis ofseniority which continues to be dependent on the substantive or basic seniority in Grade II. The question which directly arises for determination is :docs the procedure laid down in these instructions violate the petitioners'right as guaranteed by Articles 14 and 16 ?. The State which encountersdiverse problems arising from a variety of circumstances is entitled to laydown conditions of efficiency and other qualifications for securing the bestservice for being eligible for promotion in its different departments. In thepresent case the object which is sought to be achieved by the provisionsreproduced earlier is the requisite efficiency in the Accounts Department ofthe Railway establishment. The departmental authority is the proper judgeof its requirements. The direct recruits and the promotees like the petitioners, in our opinion, clearly constitute different classes and this classification is sustainable on intelligible defferentia which has a reasonableconnection with the object of efficiency sought to be achieved. Promotion to Grade I is guided by the consideration of seniority-cum-merit.It is, therefore, difficult to find fault with the provision which places in onegroup all those Grade II clerks who have qualified by passing the Appendix 2examination. The fact that the promotees from Grade II who have officiatedfor some time are not given the credit of this period when a permanentvacancy arises also does not attract the prohibition contained in Articles 14and 16. It does not constitute any hostile discrimination and is neitherarbitrary nor unreasonable. It applies uniformly to all members of Grade IIclerks who have qualified and become eligible. The onus in this case ii onthe petitioners to establish discrimination by showing that the classificationdoes not rest upon any just and rasonable basis. The difference emphasisedon behalf of the petitioners is too tenuous to form the basis of a serious argument. Their challenge, therefore, fails. The decision in Mervyn Coutindo v. Collector of Customs, Bombay on whichreliance has been placed on behalf of the petitioners dealt with a differentproblem though the principle of law laid down there seems to go against thepetitioners' submission. It was expressly observed there that there is noinherent vice in the principle of fixing seniority by rotation in a case when aservice is composed in fixed proportion of direct recruits and promotees.The distinction between direct recruits and promotees as two sources of recruitment being a recognised difference, not obnoxious to the equalityclauses, the provisions which concern us cannot be struck down on the ratioof this decision.The petition accordingly fails and is dismissed but without costs.;